The Second Amendment Term?

billofrights.jpgDistrict of Columbia Mayor Adrian Fenty announced today that the District will petition the U.S. Supreme Court for certiorari in the landmark Second Amendment case of Parker v. D.C. The District has asked for a 30-day extension of the August 6 deadline for filing its petition.

There has been extensive and lively discussion of Parker, yet I think the legal commentariat has not quite grasped how momentous a cert grant would be. It’s not often that the Supreme Court takes up the core meaning of an entire Amendment of the Bill of Rights, in a context where it writes on a mostly clean slate from the standpoint of prior holdings. If the Court takes the case, then October Term 2007 becomes The Second Amendment Term. Parker would swiftly overshadow, for example, the Court’s important recent cert grant in the Guantanamo cases.

How many Americans would view District of Columbia v. Parker as the most important court case of the last thirty years? The answer must run into seven figures. The decision would have far-reaching effects, particularly in the event of a reversal.

Here is one way to think about the message the Supreme Court would be sending if it reversed the D.C. Circuit on the merits in Parker:

Among the guarantees of the Constitution’s Bill of Rights are the First Amendment’s Establishment Clause and the Second Amendment. The cultural left has traditionally favored a vigorous application of the Establishment Clause. The cultural right has favored a vigorous application of the Second Amendment.

The Establishment Clause does not speak of a “right of the People.” As some Justices have observed, it is susceptible to being read as a mere federalism provision, in the sense of preserving states’ prerogatives against federal power. Its language appears to contemplate the continued existence of state religious establishments, since it prohibits “Congress” from making laws “respecting” the establishment of religion, and some states retained established religions at the time the Bill of Rights was adopted.

Nevertheless, this Court has not interpreted it as a “state’s rights” provision. To the contrary, we have interpreted the Establishment Clause to confer a judicially enforceable, individual constitutional right to be free from religious establishment. More than that, we have carved out an exception to the standing doctrine, unique in constitutional law, in order to enhance the ability of individual taxpayers to challenge Congressional actions on Establishment Clause grounds. (Even the current Supreme Court, widely viewed as conservative, has declined the opportunity to overrule this exception.) And we have held this Establishment Clause right to be fully incorporated against the States via the Fourteenth Amendment, despite the presence of the “federalist” language in the Clause. Although some aspects of our Establishment Clause jurisprudence are intensely controversial for many Americans, we continue to enforce the right in a meaningful fashion.

Unlike the Establishment Clause, the Second Amendment expressly confers a “right of the People.” It is widely believed by Americans to confer an individual right to possess firearms, and the philosophical basis for such a right is clearly compatible with numerous Founding-era sources (including the Declaration of Independence itself). At the same time, similar to the Establishment Clause, the Second Amendment also contains some language (in its prefatory clause) that could be construed to be “federalist” in the sense of referring to state rights against federal power.

Yet despite these structural parallels (which, if anything, are more supportive of an individual Second Amendment right than of the individual Establishment Clause right we have already recognized) we hold that the Second Amendment does not confer a meaningful, judicially enforceable individual right to keep and bear arms — not even a right good against the federal government; let alone a right that is incorporated against the States via the Fourteenth Amendment. The Second Amendment is not violated by a complete legislative ban of a common type of firearm, such as the District of Columbia’s handgun ban.

While rejecting an active role for the Second Amendment, we will, of course, continue to adhere to our interpretation of the Establishment Clause.

It would not be easy for the Court to reverse in Parker without endorsing that message. The litigation has been crafted to present few technical “escape hatches” for a higher court. (The only technical argument for reversal presented in the District’s earlier summary of its grounds for certiorari is dissenting Judge Henderson’s contention that the Second Amendment does not apply to the District of Columbia because of its unique status.)

It isn’t hyperbole to compare Parker to Roe v. Wade in its potential impact on American politics. Indeed, while the “estoppel by Establishment Clause” argument I just gave is intended to be elegant, persuasive and troubling to legal academics (after all, I ripped it off from Akhil Amar), there is a way more straightforward comparison that a whole lot of average Americans would be making. That’s a comparison between the Court’s handling of the enumerated rights claim at issue in Parker, and its demonstrated willingness to embrace even non-enumerated individual rights that are congenial to the political left, in cases like Roe and Lawrence. “So the Constitution says Roe, but it doesn’t say I have the right to keep a gun to defend my home, huh?”

I would expect to see large public demonstrations in Washington during the pendency of Parker, and political candidates being forced to take sides on the litigation (as is already beginning to happen). The case would cast a long shadow on the national elections in 2008 and beyond.

This might lead the Court to deny certiorari, as it has done in nearly all Second Amendment cases for the past sixty-odd years. But there is now a square split of authority between the federal circuits on the interpretation of the Second Amendment, as well as a long-standing split of the state courts, and these are classic reasons for granting certiorari. It’s difficult to predict how the Justices will respond to the petition. Maybe this is it.

If Parker does reach the Supreme Court, then it will be the big story of the 2007-08 Term. And the Roberts Court, not yet two years old, will take a giant step toward defining its legacy.

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16 Responses

  1. As I said at the time of Parker’s oral argument, this could be “Big, really big.”

  2. David Hardy says:

    I think you’re a bit low on the size of the public that’s interested — I suspect it’s eight rather than seven figures. NRA’s membership alone is at about 3 million, not counting smaller organizations. The number of persons interested an issue far exceeds those who join a group, just as the number of persons interested in civil liberties probably exceeds ACLU membership by a factor of ten to a hundred.

  3. David Hardy says:

    I think you’re a bit low on the size of the public that’s interested — I suspect it’s eight rather than seven figures. NRA’s membership alone is at about 3 million, not counting smaller organizations. The number of persons interested an issue far exceeds those who join a group, just as the number of persons interested in civil liberties probably exceeds ACLU membership by a factor of ten to a hundred.

  4. David Lawson says:

    In my opinion, there is little risk in Parker to gun ownership.

    If SCOTUS holds against Parker, then our judicial avenues are quashed…but face it, the courts haven’t been helping us anyway.

    We would still have recourse legislatively.

    If SCOTUS upholds Parker, then we have a new avenue for RKBA. Challenges in the States would seem likely as well as challenges to HR1022 type bills and maybe even parts of GCA68 or 86 or even NFA.

  5. Peter says:

    The trouble is that the Supreme Court is made up of lawyers.

    Ordinary people will look at the words of the 2ndA and know that “the people” isn’t some government agency like the National Guard. We see the phrase “no law” and reckon that means that Congress should butt out.

    I don’t know what exactly they teach in law school that makes simple English so difficult to understand. Give us twenty years with no lawyers allowed in Congress, or anywhere else is a decision making role in government and the Country could last another two hundred plus years.

  6. ThomasD says:

    Q:

    I don’t know what exactly they teach in law school that makes simple English so difficult to understand.

    A: Pretty much everything.

  7. Paul says:

    Assuming the Court takes the case, we might be tempted to expect another 4-4 right/left split with Justice Kennedy casting the deciding vote. (In that event, gun owners should worry.) But in this case, I have my doubts.

    From years of Court watching, I’ve noticed that on novel questions Justice Souter can be something of an originalist. (See, for example, Atwater v. Lago Vista, holding that the Fourth Amendment does not prohibit arrest for a fine-only offense, because, inter alia, our English legal heritage does not countenance such a prohibition.)

    If I’m right, then this case might well be decided 5-4, but not on the usual lineup.

  8. RS says:

    Let’s see… “the people” in all of the other Amendments refers to the individual. How can it refer to anything else in only the 2nd? Our forefathers DID NOT want all of the power with the FED or State governments because they were paranoid about governmental power (for good reason). They knew that if individuals wielded some of the power (eg guns) then things would be fair. Now why would they go and pen that only the governments could have or control guns? It makes NO sense and the only logical interpretation is to allow individuals the RKBA.

    Imagine the fallout if the SCOTUS tells the American people they can’t own guns anymore…. It’ll make the LA riots look like horseplay.

  9. Henry Bowman says:

    Imagine the fallout if the SCOTUS tells the American people they can’t own guns anymore.

    Imagine the fallout of the SCOTUS tells the American people that the government can steal their home. Oh, wait…

  10. Curtis41 says:

    I was under the impression that the idea of to have and bear arms preceded the U.S. Constitution and the framers of the Constitution were of the mind to guarantee this in fact. Moreover, this came before the mostly confirming statements in various state constitutions. The reasoning given by D.C. to keep the 30-year ban on handguns escapes me. The District is NOT safer from crime during the period after the ban was imposed, quite the opposite. Data gathered from a variety of different sources by the National Academy of Sciences found basically that gun control, the restriction of having and bearing arms, has NOT had an effect in reducing crime. Apparently, these idiots in the District presenting this case are unaware that the criminals are the ones that have the guns for the most part, and THEY are committing the crimes. What the ban did, is just like New Orleans and Nagin, et al., to deny law-abiding citizens the ability to defend themselves in a natural disaster. It was unreasonable to expect the police, sheriff and national guard to keep order in all places at all times. During horrible times like that, people are responsible for their own safety and survival. I am particularly surprised at the anti-gun zealots, many of whom have gun carry permits, they KNOW the risks to their person, and they are both cowards and hypocrites for denying others the same capability. Criminals just love to know that most people are unarmed. It is my view that we have at least TWO enemies. The criminals who generally do not stand in line to get a carry permit and a legal handgun, and the stupid zealots who are trying to take our firearms away. Our country has a long history of hunting, shooting sports and competition and self-defense. I do not know many people willing to give up their ability to defend themselves and family members in their own home. Keeping NO firearm, or having to have a trigger lock on the firearm and ammunition separate from the firearm just will not convince a criminal to leave your home. IF you can find a vertebrate judge, you can give a person 10 years or more alone for commission of a crime with a firearm. The apparent solution for many is take all the firearms away from law-abiding citizens and to flood our nation with more restrictive laws that are not being enforced in the first place. Remember that most anti-gun folks are ultimately for federal registration, confiscation and destruction, no more, no less. The republic should not be asked to do this, now, or ever. The framers of the Constitution realized this, apparently a number of left wingers are not equally convinced.

  11. DoesNotMatter says:

    So if I understand that right, if SCOTUS decides to uphold the DC law and is not careful with the wording , all other amendements empowering individual right’s are only so much dust and evaporate as soon as the goverment blows at them ?

  12. DocWatson says:

    Were the court to decide in favor of the State, mass confiscation would be the result and we would have no recourse but to meekly obey the jack-booted thugs or to revolt as the framers of the Constitution intended.

  13. Brett Bellmore says:

    “This might lead the Court to deny certiorari, as it has done in nearly all Second Amendment cases for the past sixty-odd years.”

    “Nearly”? It’s my understanding that, since Miller, the Court has refused certiori, without comment, to every last case, without any exception AT ALL, which could fairly be described as “Second amendment” cases. Lopez, for instance, was a commerce clause case.

  14. thomass says:

    Posted by: Peter at July 19, 2007 06:48 PM

    “I don’t know what exactly they teach in law school that makes simple English so difficult to understand.”

    Progressive mumbo jumbo….

  15. Joanne Mondesir says:

    In my own personal opinion, the right to bear firearms could be negative and positive. A lot of young adults these days are bying firearms without a gun license.

    No one can stop them simply because by LAW they are in title to own a gun. That discussion will go on and on because there is no good solution about possessing a firearms…

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