THE SECOND AMENDMENT
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.
The United States Supreme Court is about to be put on the hot seat. In the debate over the meaning of the Second Amendment, there are two opposing camps. On one side, the collective rights theorists argue that the Amendment protects only a right of the various state governments to preserve and arm their militias. This position posits that the federal government is prohibited from taking away the ability of the states to arm their fighting forces.
On the other side are those who argue that the Second Amendment protects the right of individuals to possess arms for private use. To these individual rights theorists, the Amendment guarantees personal liberty analogous to the First Amendment’s right to free speech or the Fourth Amendment’s right to be free from unreasonable searches and seizures. However, some forward-thinking scholars suggest a middle ground between the individual and collective right models.
The most prominent in-between theory developed by academics has been named the “sophisticated collective right” model. In this model, traits from the two opposing models are blended. The theory acknowledges that individuals could, theoretically, raise Second Amendment challenges against the federal government, but the scholars define the Second Amendment as a purely civic provision that offers no protection for the private use and ownership of arms.
While the various state and federal courts have argued over the meaning and application of the Second Amendment, the Supreme Court has shied away from tackling the issue of whether the Second Amendment applies against the states as well as the federal government. The highest court has not ruled on the Second Amendment issue since 1939 – 68 years ago.
The Second Amendment is part of the Bill of Rights, also known as the first ten amendments. The Bill of Rights was originally passed to protect individual rights against a strong central federal government; the Bill of Rights had no application against the existing state governments. States were seen as protectors of their citizens; it was fear of a strong federal government that triggered passage of the Bill of Rights.
Until the passage in 1868 of the Fourteenth amendment in the wake of the Civil War, the states went unfettered in their discriminatory and often harsh treatment of certain segments of their citizenry. This often meant depriving citizens of critical individual rights – the very prohibitions against the federal government contained in the Bill of Rights were not enforced against the states. But with the passage of Fourteenth Amendment, the courts were given a tool to bring state governments into line. The Fourteenth Amendment states:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The phrase in the Fourteenth Amendment “No State shall” enabled the Supreme Court to use its powers to selectively incorporate individual provisions of the Bill of Rights against the states. As cases were appealed to the Supreme Court, the Court looked to the Bill of Rights for guidance. Slowly, over time, the Supreme Court applied clauses of the individual rights found in the Bill of Rights to the states. Today, very few provisions remain of the Bill of Rights that have not been applied to the states. One of those is the Second Amendment. While the Second Amendment prohibits actions by the federal government, it does not prohibit states from banning, controlling, or managing guns.
That 68-year-old status quo may be about to change. In 1976, the District of Columbia enacted three statutes which dealt with various areas of gun control such as prohibiting registration of sawed-off shotguns, machine guns, short-barreled rifles, and pistols not registered prior to that date. The D.C. statutes had been in effect for almost 30 years when, in 2004, a group of six plaintiffs residing in Washington, D. C., filed suit in the D.C. District Court to challenge the statutes.
Of the six residents, only one had actually applied for a permit to possess a handgun in his home, and his request was rejected. The other five had not applied for a permit but simply wanted the option of possessing or carrying a gun if desired. In analyzing a 65-year long line of federal cases including a 1939 U.S. Supreme Court case, United States v. Miller, 307 U.S. 174, the D.C. District Court rejected the notion that:
“there is an individual right to bear arms separate and apart from service in the Militia and because none of the plaintiffs have asserted membership in the Militia, plaintiffs have no viable claim under the Second Amendment of the United States Constitution. Thus, plaintiffs’ complaint must be dismissed and their Motion for Summary Judgment denied as moot.”
The District Court reasoned that the right to bear arms was a collective right rather than an individual right. The collective right was necessary in order to provide a “well-regulated” militia provided by the state. After the loss at the District Court level, the plaintiffs appealed to the Court of Appeals for the District of Columbia Circuit. On March 9, 2007, the Court of Appeals handed down its decision. The Circuit Court of Appeals, in a lengthy opinion, analyzed the issue in light of the collective rights theory and the individual rights theory, landing squarely on the side of individual rights, ruling that the right to bear arms was, indeed, an individual right to be protected. The Circuit Court of Appeals reversed the District Court ordering the lower court to rule in favor of the one appellant who survived the issue of standing to bring his challenge.
The District of Columbia intends to appeal the Circuit Court of Appeals decision. This means the Supreme Court will have to decide whether or not to accept the appeal, thus ending its 68-year silence on the application of the Second Amendment to the states. The Supreme Court, may, however, have an out.
The District of Columbia, founded on July 16, 1790, is not a state; it is a federal district as specified in the United States Constitution. The Fourteenth Amendment applies against the states; it does not apply against a district. The District of Columbia and the City of Washington are governed by a single municipal government, and for most practical purposes, are considered to be the same entity. Although there is a municipal government and a mayor, Congress has the supreme authority over the city and district, which results in citizens having less self-governance than residents of the states.
The Supreme Court could hear the case and decide that the Fourteenth Amendment does not apply because of the unique nature of the District of Columbia’s status. However, if the Supreme Court decides the District’s federal status places it in the realm of the original Bill of Rights prohibitions against federal government deprivation of individual rights, the Court could still avoid a decision by finding that the District is a hybrid, subject neither to the Fourteenth Amendment nor to the Second Amendment. Thus, the Supreme Court could very well maintain its long and silent history on the Second Amendment and its application.