From My Cold, Dead Hands...
This spring the U.S. Supreme Court will consider the utility of the argument that non-state militias members have an individual right to keep and bear arms. At issue is a District of Columbia ordinance that prohibits private handgun ownership. The D.C. Court of Appeals ruled in March that the 31-year old ordinance was unconstitutional because it infringed on the individual right to keep and bear arms. The 2-1 ruling did permit less restrictive gun control measures, but the decision stands counter to the age-old collective rights interpretation of the amendment.
Let's parse the prospects of the Supreme Court's ultimate decision due next June. Revisiting the text of the Second Amendment is an ideal starting point. It reads, "A well regulated militia, being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed."
The introductory clause refers to the state militias that existed during the nation's founding period for fear of a permanent standing army. Many states required citizens to own guns for the purposes of national defense as threats emerged. Given the size and strength of today's U.S. Armed Forces, such a notion is indisputably outdated. As a result, some suggest that gun ownership should be permitted only to members of the state national guards.
On the other hand, the second clause does reference the people's right to keep and bear arms, thus the emergence of claims suggesting an individual right. Moreover, gun ownership was and is justified by some as the citizenry's ultimate recourse against a corrupt government. After all, it was guns propelled a revolution against the British Crown.
To date, the Supreme Court has only acknowledged a collective right. This precedent is extrapolated from a 1939 case upholding a federal law requiring the registration of sawed-off shotguns. Separate 2001 and the aforementioned 2007 appellate court decisions contest this notion, suggesting an individual right.
The facts of this case are most interesting because the District of Columbia is not a state. The Second Amendment is one of the few provisions of the Bill of Rights to never be incorporated, meaning it does not apply to state laws and local ordinances. A decision to uphold the DC decision thus would not likely result in incorporation, at least not immediately.
The question the Court is considering reads as follows: Does the statute “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.” An affirmative answer would be applied rather narrowly to the District given its governance by Congress, but would seemingly open the door for challenges to similar ordinances like that employed in Chicago since 1983.
If an individual right to keep and bear arms does exist, then why is the Second Amendment not incorporated alongside other individual rights specified and those not enumerated (example: privacy) in the Bill of Rights? If incorporated, Chicago's ordinance would predictably be deemed unconstitutional, along with others enacted by municipalities across the country.
Not one of the existing nine members of the Court has ever considered a Second Amendment case, so I'll stray from predicting the outcome here. That said, I anticipate the conservative bloc (Roberts, Scalia, Thomas and Alito) to side with the DC Circuit, and the liberal bloc (Stevens, Souter, Ginsberg and Breyer) to vote to uphold the local ordinance. The swing vote, as usual on the Roberts Court, is Justice Kennedy. In his hands, far from "cold" or "dead," rests the fate of local ordinances and the individual right to keep and bear arms.