The Right to Bear Arms The Second Amendment
District of Columbia vs. Heller
In more than seven decades, the United States Supreme Court heard arguments as to the core and essence of the Second Amendment of the American fundamental law and the relation to gun regulation and control statutes (United States Supreme Court Media). In the line of fire was the District of Columbias more than three decades old gun ban policy, being challenged that the ban was infringing on the ambit of the Second Amendment of the Constitution, which reads
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed (Fox News, 2008).
Lawyers representing the District, that had banned its residents from bearing hand guns since 1976 for reasons of public safety, argued that the amendment allows the members of the militia and not the ordinary citizens are allowed to bear and keep arms. In the decision of the United States Court of Appeals in Parker vs. Columbia, the Court ruled that the Second Amendment did provide for citizens to bear arms and possess them, purging provisions from the Code of the District of Columbia and ruling these provisions as constitutionally infirm. In late 2007, the Federal Supreme Court granted a motion for certiorari in the motion for Parker, limiting the question to be resolved to the contested provisions in the D.C. law that allegedly impinge on the ambit of the Second Amendment regarding the rights of individuals to possess arms, though they are not members of any militia group and keep their firearms in their own homes for the owners protection. In Parker, also known as District vs. Heller, it is the first time in nearly seven decades that the Supreme Court of the United States will consider the nature of the rights enshrined in the Amendment that is imparted, and it is expected that the resolution of the case will have important repercussions on judicial and congressional considerations in the future (T.J. Halstead, 2008).
At the time that the issue came for deliberations before the High Court, The District of Columbia enacted laws that considered possession of handguns by private citizens as an illegal act, when the firearm is unregistered and banning the registration of handguns, but allows the Chief of Police to issue permits with a duration of one year, and mandates that residents to store the firearms that are legal in their homes, unloaded, disassembled or have the trigger locked or restrained by a similar device (Supreme Court of the United States, 2007). The questions raised before the High Bench were whether the following clauses in the District of Columbia Code- D.C Code 7-2502.02(a) (4), 22-4504 (a), and 7-2507.02-infringed upon the rights enshrined in the Second Amendment of the United States Constitution, regarding the right of Americans who are not members of state militias, but desire to keep handguns and other types of guns in their homes for their own use (Cornell University Law School).
Case History
In the history of the case, the District of Columbia crafted three of the strictest gun control laws in the United States in 1976. The statutes specifically ban the ownership of hand firearms within the District, though the laws do allow the residents within the District to own shotguns and rifles that are disassembled or tied by a trigger locking device (Cornell). A group of individuals challenged the law, collectively known as the Firearms Control Regulation Act of 1975, was challenged by six residents in the District in 2003 saying in that the ban effectively infringes on their rights to possess and carry firearms within the District (Tom Head, 2010).
As earlier stated, Dick Heller, a special police officer detailed in the District of Columbia, undertook legal action against the statutes that were enacted in the District and filed the actions in the United States District Court of Columbia, stating that the imposition of the ban on the possession of guns infringed on their rights to keep guns as enshrined in the Second Amendment rights in the Constitution. Represented by their counsel Robert Levy, the case was built and funded by Levy with the express purpose in getting a decision from the Supreme Court. In the opinion of the District Court, the Court ruled that the ban applied to private citizens and allows the possession of guns only for members of the militia and as a result, allowed the motion of the District to rule against the plaintiffs in the case. Being denied judicial relief in their fight against the ban in the District Court, Heller with the other plaintiffs elevated their case to the District of Columbia Court of Appeals, in Parker vs. District of Columbia, 478 f. 3d 370 (D.C. Cir. 2007) (Cornell University Law School).
In the discussion of the case before the Appeals court, the first action of the appellate court was the determination After the motion of Heller was raised to the United States Supreme Court, of the legal standing of the plaintiffs in the case at hand. In order that the plaintiffs to legally satisfy this requirement, the aggrieved parties must prove to the court that the laws which are the under the contention of the parties are indeed victims of the law. In short, the plaintiffs must prove that the law that was enacted by the District, the ban on handgun ownership, impinged on the full exercise of the rights of the plaintiffs with regards to the Second Amendment. In the case of the plaintiffs, the parties, particularly Heller, must prove that the state, in this case the District of Columbia, created an injury when they denied the application of Heller for a permit to own a firearm (Cornell).
In contesting the ban, Heller sought to acquire a permit for him to legally keep his firearm at home, but was denied by the city authorities. This was filed on two grounds, using the Second as the basis of the actions, restraining the city from enforcing the ban on the possession of unlicensed firearms at home, and the use of trigger locks as this clause prevents the use of the functional firearm at home. The district court affirmed the ban, but the Circuit court reversed the decision of the lower court, ruling that the protection of the Second Amendment on the right of the citizen to possess firearms also fell within the ambit of the contested amendment. The Court also ruled that the total ban on handgun possession and the imposition of the requirement that guns kept at home be rendered non functional even when the use of the firearm is for self defense purposes, infringed on the Second Amendment rights of the plaintiffs (Cornell).
Scope of the Second Amendment and definitions
As earlier mentioned, the Second Amendment in the American fundamental law states that the keeping of firearms is a right that is granted to the American public and that right shall not be infringed or trodden down upon. Despite the short conveyance in the Constitution, the context of the right as essayed in the Second Amendment has been greatly debated in political, academic and legal arenas for many decades. In the study of the parameters of the Second, there are two contrasting models that can be used in the analysis of the Second. One of the models is the right of the person, or the individual right model , which maintains that the wording and the historical background of the particular constitutional provision is definitive in its assertion that the right is a clear cut manifestation of the Framers thinking that the bearing of arms, and the right to keep those arms, is intended to benefit the citizens themselves, and not for the states in the Union. The other is the right of the states to organize militias, and the protection of that right, or the collective right model (Halstead, 2008).
Another but less known interpretation of the Second Amendment states that individuals do possess the right to own firearms, but is connected to the membership of the individual to his service in the militia forces of the state. This is the sophisticated collective rights model interpretation. The major arguments in the affirmation of and the opposition to the right of the person to own firearms depends on the wording of the Amendment itself. In the context of the individual right model , the interpretation rests heavily on the operating clause of the Amendment, which states that the right of the people to keep and bear arms shall not be infringed . In the belief of the supporters of this model, the right affirms the position that the people are guaranteed, and not the rights of the states. In support of this policy, the context that the basis is the Tenth Amendment (Halstead, 2008), which reads
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people (American Law and Legal Information, 2010).
Enacted in 1791, the 10th Amendment of the Constitution outlines the general provisions of the concept of Federalism in the Republican type of government. In the Amendment, the American fundamental law gives the parameters of the authority that can be utilized by the different branches of the American government. The Amendment reserves to the disposition of the states all the powers that are not endowed to the Federal government by the Constitution, except the powers that the law states that the States cannot exercise. To cite an example, the Federal Constitution does not give the United States Congress the power to regulate or legislate on local matters such as health, morality and the safety of residents of the states in the Union. These rights are reserved to the application of the states, collectively known as the Police Powers of the states (American, 2010).
The 10th, in the belief of the practitioners of the individual right model, sets a clear distinction between the states and the people, the terminology making the clear cut difference between the two sets of parties in the Amendment, and that the Framers of the Constitution put a definitive stance on the term state . In this frame, it can be argued that they knew what or who they were inferring the right to. The argument here is that in the wording of the Second Amendment, the right conferred did not infer an individual right, the Second would have simply stated that the right to bear and posses arms is for the states and not to the individual. For the supporters of the collective right interpretation, they oppose that assertion with the dependent clause of the 2nd, that with the insertion of the phrase well-organized militia , that qualification will apply to the rest of the 2nd, as the right limits the rights of the people to bear and possess arms and imputing on the states the authority to regulate the conduct by which the arms are stored, and that the person who keeps and bears such items are members of the state militia (Halstead, 2008).
In the determination of the legal standing of the plaintiffs in the case, the appellate court refused to grant recognition to the other five plaintiffs in the case, granting recognition to Heller who was the one that actually sought to acquire a permit to keep a firearm at home and was rejected by the city authorities. Heller, a security officer who does bear a gun while on duty guarding the administrative offices at the Federal court building, sought to acquire a permit to keep a gun at home for purposes of self defense (Linda Greenhouse, 2007). In the passage of time, the concept that the ownership of firearms is only for the membership of militia in the states is now applied into the members of the National Guard, and that the developments in the art of warfare has all but voided the need for the citizens to carry firearms. In the arguments of the supporters of the individual rights ideology, they aver that the militia as conceived by the Founders were comprised of every male that could serve in the militia, each of them had to have their own firearms (Halstead, 2008).
To buttress their notion, they infer the United States Public Law (10 U.S.C 311) that in part defines the different classes of militias that apart from the National Guard, there exists in society an unorganized militia , made up of all males 17-45 years of age that are deemed fit to serve in the National Guard or the seaborne militia but are not formal and integral members of the two branches. Also, they aver that the theory cannot just be overridden or declared as academic given the rise of the technology in warfare or the changing mores of the society (Halstead, 2008).
The Second Amendment in the United States Supreme Court
United States vs. Miller
As earlier stated, the case of District vs. Heller was the first time that the Court had to deal with a case dealing with the interpretation of the Second Amendment in nearly seven decades, since the Court decided in the 1939 case of United States vs. Miller that only implied that the right under the Second Amendment can only be applied within the context of the membership in the state militias (Greenhouse, 2007). In deciding in Miller, the Supreme Court ruled in favor of a provision in the National Firearms Act that mandated that sawed off shotguns be registered. In the discussion of the Second, the Court took note of the term militia , understanding it to mean that it was commonly used to refer to males that are physically able that can act in concert for the purpose of defending the citizenry, that the members of the militia were civilians first and soldiers second (Halstead, 2008).
The Court crafted the rationale that a weapon that is in the possession of an individual must have a definable relationship to the maintenance or the efficiency of a well-organized militia force. It is noteworthy that in the discourse of Miller, the defendant in the case did not offer any pieces of evidence that will support his conviction. In the Supreme Court ruling, the Court states that there being no evidence that the possession or the use of a shotgun with a barrel less than one and a half feet in length at the time can have a reasonable relationship with the practice of a well-organized militia, the Court cannot declare that the ambit of the 2nd protects the individual from the restrictions that will allow the user to possess and own such a type of firearm (Halstead, 2008).
The decision of the Court in Miller is quite complex, in that the decision affirms the right of the individual to bear and keep a gun to the fact that the person be a member of the militia, but does not exhaust the logical repercussions of its findings, leaving vulnerable the question of the limits at what point does regulation or banning the ownership of firearms tends to infringe on the tenets of the 2nd. After the Miller decision, cases discussed in the years after the decision generally departed from the tenets set down in Miller. After this, the succeeding rulings with regards to the courts treatment of the 2nd for the rest of the 20th century generally carried a blanket modicum that the 2nd only allowed a collective right to own guns and not to the individual right to keep and bear arms (Halstead, 2008).
Cases vs. United States
The progressing departure from the tenets of Miller came to a head in the 1942 decision of the Court in Cases vs. United States. In the Cases issue, the First Circuit Court of Appeals held that a strict application of the provisions in Miller could restrain the government from monitoring the possession of high powered weapons such as machine guns that serve military purposes. Using the inference of Miller, the Court that decided in Cases ruled that the Founders could not have meant for the citizenry to come into possession of such high powered weaponry such as machine guns or other such high powered guns to be kept in their arsenals at home. In the decision, the Court formulated a new set of tests to the application of the 2nd, that of the individual having possession of the banned weapon as a member of the militia. The defendant in the case failed in that test, with the Court ruling that the owner of the weapon merely had the weapon as a result of caprice without intention to contribute to the efficiency of the militia (Halstead, 2008).
The Cases decision reaffirmed the constitutionality of the Federal law that bans the possession of such weaponry that can be perceived as a weapon that can be used in the militia but the weapon was not utilized for that purpose. To further strengthen the position of the Cases court, the High Bench used two decisions in United States vs. Cruikshank and Presser vs. Illinois . In both cases, the doctrine that the 2nd did not confer a right to individuals to keep and bear arms was again sounded off by the Court. In their assertion, the 2nd , as well as the United States Constitution, does not confer the right to bear arms on individuals, and that the only function of the 2nd was to bar the Federal government, and that agency only, from impinging on the rights in the Second (Halstead, 2008).
After the motion of Heller was raised to the United States Supreme Court, the debate on one of the most stringent gun control laws will begin to determine whether the Supreme Court will rule on the assertion that individuals can keep the guns that they have even if they are not members of the militia or as discussed earlier, the National Guard. The High Bench will see if the Second Amendment will support the argument of those like Heller who wish to be able to possess firearms in their homes. If the High Court rules in favor of the Constitutional provision and states that the 2nd allows gun possession for individuals, this could begin a rash of legal challenges to laws that control the restrictions on gun possession across the United States. In the opinion of Northwestern University constitutional law professor Martin Redish, the decision of the Supreme Court can either add fuel t the efforts to quash existing gun control laws or strengthen the actions on restricting ownership of firearms (Emma Schwartz, 2008).
In the chronology of the United States, there has been the opinion that the 2nd conveys a collective right of assembling citizens together as an action of the states, such as the National Guard. In the judicial arena, nine Federal Circuit courts have ruled in favor of the position, and the Supreme Court indirectly ruled in favor of the position in the 1939 United States v. Miller case, though the case concerned an issue of possession of sawed off shotguns. But in the more recent times, there is a growing opinion that the 2nd does grant a right for individuals to own firearms. After a 2001 decision in the Federal appellate court upheld a individual right issue before it, the Department of Justice, headed then by Attorney General John Ashcroft, shifted the administrations policy in advocating for an individual right. The general reasoning is that most of the rights in the Constitution, particularly in the Bill of Rights grant individual freedoms, then the tenets of the 2nd should not differ from the others (Schwartz, 2008).
In favor of the right to bear arms
The United States Supreme Court, by a narrow 5-4 decision ruled on the case of the District of Columbia that the D.C ban on the possession of handguns as unconstitutional, stating that the ban was violative of the rights of the citizens to own guns and keep them in their homes for purposes of self defense. The ruling effectively purged the more than 30 year ban on handguns as an infringement on the rights of individuals to own firearms, exceeding even the expectations that were hoped for by officials of the Bush administration, but at the same time leaving most of the gun control laws in the country virtually unscathed. But in deciding against the ban, the Court had not definitively essayed on the qualifications on the tenets of the Second Amendment since the 1791 enactment. Justice Antonin Scalia, ponente for the majority decision, avers in the decision that the individual right to bear arms is supported by the chronological narrative, both in the times before and after the adoption of the 2nd. The High Court ruled that the United States Constitution does not allow a total banning ownership of handguns that are kept and used for purposes of self defense at home, and also quashed the requirement that guns be equipped with trigger locks or be disassembled, but allowed the registration of firearms in the District (Fox News, 2008).
In the decision of the United States Supreme Court in District of Columbia vs. Heller (07-920) decided on June 26, 2008, the Court ruled that the Second Amendment does protect the right of an individual to possess a gun even though that person is not affiliated with a militia in any of its branches, and allows the use of the gun for legally acceptable purposes such as for the purpose of defending oneself or the members of his family at home. In their ruling, the prefatory clause of the Amendment does state a purpose, but does not expand on the operative provision of the Amendment. The context and background of the operative clause of the Amendment sets in no vague terms that the individual has the right to bear arms. (Cornell).
But in writing the decision, Scalia was careful not to provide a sweeping purge of all gun control statutes in the United States. Scalia noted that nowhere in the decision is the permission given to the criminals and mentally challenged to be able to own firearms. These firearms may be banned if they are considered as uncommon and dangerous, a qualification that the handgun does not satisfy (Head, 2010).
In the run up to the decision of the Court in Heller, some of the Justices already held that the 2nd did afford the right to individuals to keep and bear arms. Among the Justices that stated that they were in favor of ruling for the matter were Chief Justices John Roberts, Samuel Alito, Anthony Kennedy and Clarence Thomas (Halstead, 2008). Writing for the minority, Justice John Paul Stevens stated that the majority in the Court would have the minority believe that the Framers gave the necessary tools to local officials to monitor civilian use of weapons. Joining Stevens in opposing the ruling were Justices Ruth Bader Ginsburg and David Souter (Fox, 2008).
Conclusion
Even as the Court accepted the oral manifestations in Heller as support for the interpretation of the 2nd as an affirmation of the individual model, the Court also found merit in the application of the District of the ban on handguns, that the citizenry did not have a right to possess guns as individuals apart from the context of being members of a militia. To resolve the impasse, the Court can use the collective model of interpreting the 2nd, that would validate the arguments against the laws being discussed, given that no individual laws are infringed in the process. Or the Court could also adopt the tenets of the sophisticated collective model, as the rights sought in Heller, that of possessing the arms would be utilized in the context of the militia (Halstead, 2008).
In the recommendations of the Cato Institute in response to the Heller decision, the American Congress should be compelled to obey the provisions as laid out in the decision. Also, Congress should work for the revocation of the government ban on the purchase of handguns across state lines, and repeal the age requirements on the buyers and the possessions of handguns. But the first victory in Heller must come with guidelines on the types and persons that are allowed to be owned and to own handguns, respectively. In the opinion of the Institute, the case of Heller presents a most opportune time to finally resolve the case of gun ownership in the United States (Cato Institute).
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