OVERBREADTH

Today the Supreme Court heard argument in District of Columbia v. Heller, the second amendment case that may resolve–for the first time in American history–whether the amendment protects an individual right or a collective state militia right. The transcript of oral argument is available here, and the C-SPAN audio is here.

The Second Amendment controversy

Some people believe the constitutional drafters intended a law that means something like this:

Congress or the States shall pass no law abridging the right of any person to possess weapons for personal use.

And other people believe they intended a law like this:

Congress shall pass no law depriving the state-militia’s of their military arms.

Either of those might’ve been sensible to include in the Bill of Rights. The first option would suggest they were creating an american version of the English Declaration of Rights (1689), which included a form of individual gun rights. Or maybe they were concerned about the newly formed federal government getting over-cocky, disbanding state militias, and then, like, outlawing slavery. Who knows. I see both options as plausible. Here’s what the second amendment actually says:

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.

Gun-control advocates emphasize the part about the “well regulated militia,” and gun-rights advocates emphasize “the right of the people.”

One thing we can all agree on, the whole thing is some crazy drafting! It’s totally inexcusable grammatically. Just look at all those wacky commas. What’s that comma doing after the word, “Militia”? And what about the one after, “bear Arms”? What the heck is the subject of the sentence anyway? And “bear arms”!? Who says bear arms? Justice Souter made that point at oral argument:

JUSTICE SOUTER: In the eighteenth century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk!?

Now, I’ll confess, I have a bias here. I don’t feel the same way about the second amendment as I do about, say, the first amendment. I love the first amendment. The idea of lots of people exercising their free expression appeals to me. By contrast, lots of people bearing arms seems a little dangerous. If the amendments were Star Wars characters, the first amendment would be Yoda, the second would be Anakin Skywalker. You know, he seems all harmless in episode one as a little kid (muskets), but by episode two you start to fear him (machine guns). It’s off topic, but while we’re at it, the third amendment (protection against the quartering troops in our homes) is Jar Jar Binks. You just have to ask, why is this guy even here?

Reading the Tea Leaves of the KennedyRoberts Court

It’s dangerous to predict which side will win based on oral argument, but in this case, the views of the justices are pretty clear. In particular, it’s Kennedy that really matters here as the only potential swing vote. As Kennedy goes, so goes the majority opinion. (If Justices Scalia, Thomas, Alito, or Roberts vote for a collective right, I will eat my shoe.) So what can we glean from Kennedy’s questions?

JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?

Gotta love that. There’s some kind of cowboy romanticism happening here. This is also one of those moments where I question original intent as a tool to resolve constitutional issues like a city’s attempt to curb inner-city homicides.

JUSTICE KENNEDY: In my view it supplemented it by saying there’s a general right to bear arms quite without reference to the militia either way.

Hey that’s not a question at all! Advantage cowboys.

JUSTICE KENNEDY: So in your view this amendment has nothing to do with the right of people living in the wilderness to protect themselves, despite maybe an attempt by the Federal Government, which is what the Second Amendment applies to, to take away their weapons?

Yes, I enjoy Justice Kennedy’s obsession with fighting grizzly bears, but there’s something else to notice here: he emphasized that the Second Amendment applies to the federal government. Gun-rights advocates like to argue that it applies to the federal government and the states. Because the case is in D.C., they don’t need to (and probably won’t) reach the issue of incorporation, but if, as seems likely, the court recognizes an individual right to bear arms, the next battle for gun-rights advocates will be incorporation, and it’s interesting to see Kennedy might not be on board for Cowboy rights, part two.

Kennedy also strongly hinted that United States v. Miller is going to be overruled. Miller is the 1939 case that held that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness” of the state militia.

JUSTICE KENNEDY:It seems to me Miller, which kind of ends abruptly as an opinion writing anyway, is just insufficient to subscribe — to describe the interests that must have been foremost in the framers’ minds when they were concerned about guns being taken away from the people who needed them for their defense.

And again:

JUSTICE KENNEDY:You’re being faithful to Miller. I suggest that Miller may be deficient.

In sum, looks like there are clearly 5 votes for the individual right interpretation. I got the feeling that Justice Breyer was prepared to join them too if the holding was sufficiently narrow, so I’ll predict a 6-3 vote for Heller.

Tags: Law and Disorder //