Supreme Court Shooting Gallery
The United States Supreme Court spent an hour and thirty-seven minutes yesterday considering the original meaning of these 27 words embedded in the Second Amendment (I previewed this case upon acceptance. To read my earlier post click here). Unlike much of the balance of the Bill of Rights, the Second Amendment has not been reviewed in its entirety by the high court since 1939, and has never deemed the right to keep and bear arms an individual one nor incorporated its collective interpretation to the states. The First Amendment, for instance, originally applicable to only national laws, was progressively applied to state and local laws and ordinances over the course of the 20th Century via the Due Process Clause of the 14th Amendment (for a more expansive layman's interpretation of the legal nuances of this case click here).
Moreover, the age-old interpretation of the Second Amendment as a collective right relates to its state militia component, meaning gun ownership and possession is tied to membership in today's equivalent of the national guard.
The plaintiff in this case, a District of Columbia resident who works as a security guard, is challenging a DC law that prohibits handgun ownership and possession (Chicago has a similar ordinance), alleging violation of his individual right to keep and bear arms. The defendant, the District, argues that the Second Amendment is not an individual right, but instead a collective one, thus permitting reasonable gun control measures to combat crime.
The interesting sidebar in this case is that it addresses an issue of federal consequence as the ordinance applies to the District of Columbia and not an individual state. The Court could reasonably recognize an individual right to keep and bear arms, but not incorporate the amendment and apply it to other states and localities. However, by recognizing an individual right, the justices are issuing an invitation for future cases where they could indeed incorporate the Second Amendment.
Chief Justice John Roberts is a stated proponent of minimalism, meaning the Court should decide a given case on the narrowest possible grounds. Based on statements made on the bench yesterday, the Court's conservative majority (Roberts, Scalia, Kennedy, Thomas and Alito) appear poised to recognize an individual right. Another split decision may also be in the works with the liberal wing (Stevens, Souter, Ginsberg and Breyer) standing in opposition. Whether the majority will go so far as to incorporate the amendment remains to be seen. While this would violate Roberts' minimalist objectives, it would arguably be in line with the other "fundamental" freedoms in the Bill of Rights already incorporated.
The Bush Administration, for that matter, through Solicitor General Paul Clement, advocated a middle ground approach. Acknowleding an individual right, Clement cautioned the Court that a sweeping ruling could undermine federal gun control legislation. I predict a ruling in line with this reasoning.
Like the First Amendment right to free speech (imminent danger test, time, place and manner restrictions, etc.), the Second Amendment right to keep and bear arms will likely come with limitations. The question is the extent to which individual gun control laws conflict with this individual right. Short of clearly defined rules embedded in the eventual opinion (expected in June), expect a slew of challenges flooding state and federal courts in the coming months and years. Through such sifting and winnowing, a tighter standard will likely emerge.