The Supreme Court has agreed to hear arguments on a purely Second Amendment-based case, D.C. v Heller. This is the much anticipated case to determine if the Second Amendment guarantees and individual right or some sort of quasi-right of a State.
The case involves Washington D.C.'s 1976 gun-ban that prohibits registering new handguns after 1976 and requires any firearms stored in the home to be unloaded and locked up or partially disassembled. The plaintiffs challenged the law as a violation of Second Amendment rights and the District's Federal Court of Appeals agreed. This sets up a difference of legal opinion. Both the 5th Circuit court and the D.C. Court have taken the stance that the Second Amendment guarantees and individual right. This is opposition to the other Federal courts who adhere to the "collective" rights theory (that the right is a State's right to have a militia). Now it's up to SCOTUS to settle the issue.
As previously reported, the D.C. administration's stance is an arrogant one of "whatever the amendment guarantees, it doesn't apply to us, so we can make any laws we want." And their arguments amount to one of social expediency - crime is way to high but if we ban handguns it will bring social order. One can easily see the "slippery slope" to this argument. If social utility is the measure, then why not fight the war on drugs by eliminating the 4th Amendment's protections against random searches of people and their homes?
The Supreme Court, apparently not satisfied with the phrasing of the issue to be resolved, re-wrote the question (as it sometimes does to broaden or narrow the issues to be argued) with specific wording. The question to be argued before the bench is now worded as follows.
Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — 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?
The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.
This question will require the justices to decide whether a person must belong to some form of "state-regulated militia" to be protected by the amendment. This gets right to the heart of the question of militia-membership, as argued by anti-gun groups.
Political pundits have long learned to avoid predicting with the Supreme Court will decide. But I do think there is a good possibility that the justices will lean towards a plain-reading of the amendment and its guarantees.
I say this because in the last two decades a number of scholars have researched the history of the Second Amendment, both legal and political, and created a large body of support for the individual rights model. And these have survived the filter of peer-review by other scholars and academic reviewers. This is in direct contrast to some works by anti-gun "researchers" who refuse to disclose their sources or, as in one case, so fraudulently distort history that he was forced to resign from a prominent university.
A number of scholars and academics who previously supported the collective-rights theory have "switched" to support the individual rights model. More telling, however, is none of the scholars has switched from an individual rights view to the collective view. Even Harvard's Lawrence Tribe, often considered an authority on the constitution by SCOTUS, has embraced the individual rights model, although he still retains his belief that gun ownership can be tightly regulated.
What will it mean if the Supreme Court throws out the Washington D.C. laws as violating the Second Amendment? It will depend on the wording of the court's ruling, of course. But unless the court completely rejects the individual rights model, every future challenge to a gun-control law will be on firmer legal footing and judges will not be able to ignore the Second Amendment.
Recommended reading:
To Keep and Bear Arms: The Origins of an Anglo-American Right
Dr. Joyce Lee Malcolm; ISBN-13: 978-0674893061
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