Tuesday, March 18, 2008

On Arms

The Supreme Court heard oral arguments today for DC v. Heller about the right to bear arms under the 2nd Amendment. DC wants to uphold its strict gun control laws that don't allow residents to have guns, and Heller says this ban is unconstitutional.

Lucky for you, yesterday I presented an oral argument in my Constitutional Law class about this. I took what is essentially DC's side - that the 2nd Amendment does not give individuals the right to bear arms, and even if it does, restrictions are reasonable. Obviously, DC's lawyers present arguments that are more concise, more detailed, more numerous, and that are better overall; and as I don't really have time to listen to the 75-minute recording of the actual oral arguments on C-SPAN, I cannot say that what I write below is their argument - but here is my argument that I presented (and that I got the best grade possible on!).

The Amendment - it is a little hard to figure out:
"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".

This gives "collective rights" to bear arms, not "individual rights" - meaning the amendment gives states the right to arm their militia (now the National Guard).

There are two clauses in the Amendment - "A well regulated Militia, being necessary to the security of a free State" and "the right of the people to keep and bear Arms, shall not be infringed".

The first clause is the purpose of the 2nd Amendment - and the purpose it conveys is that the State, as opposed to the country, needs (needed) to have the ability to protect itself though military.

Militia means military - not, as opponents will say, any independent group of men who are able to fight for their state. It means a state military because of "being necessary to the security of a free state". Originally, the framers were going to have this phrase say "the best security of a free country". By changing from "country" to "state", the framers were assuaging the fears of anti-federalists (who did not want a federal government) that there would be federal tyranny and the states would not be able to protect themselves - so, the Amendment is saying that states can protect themselves. Second is the phrase "well-regulated". As the 2nd Amendment was enacted shortly after Shay's rebellion, we can take "well-regulated" to mean trained and regulated by the state, as opposed to mere ability to use a gun.

The 2nd clause is the substantive portion of the Amendment. Generally, "bear arms" refers to the military being able to bear arms. Opposition will say that "bear arms" has no military connotation, but when you read this 2nd clause in light of the first clause, you see that as the 1st clasue was speaking of a state-regulated military, so "bear arms" has a military connotation here. Now, "keep...arms" does not have any sort of military connotation here, but you have to read "keep and bear arms" together - otherwise, people could keep arms but they couldn't do anything with them... and what is the point of that. So "keep and bear arms" has a military connotation.

Now we have to read the two clauses together, or else the 1st clause wouldn't really mean anything. The 1st clause would just be a statement that doesn't convey any rights - and you can't interpret the Constitution in a way that makes another part have no meaning, because why would the framers have included a phrase that means nothing when they had to exclude other things due to the fact that the Constitution is written, therefore limited? So read the clauses together, and the most plausible construction is that the 2nd Amendment seeks to ensure effective state militias and states have the right to arm their military - the 2nd Amendment does not guarantee gun rights to individuals.

Today, more and more people and courts are interpreting the 2nd Amendment as giving individual rights to bear arms as opposed to collective rights. But even if that is the case, governments can still impose some reasonable restrictions on these individual rights, as long as the restrictions are not inconsistent with the individual right to keep and bear guns - we already restrict felons, infants, etc. So in this case the question is whether the restriction that doesn't allow DC residents to have guns is reasonable. Here I am not sure. I can validate a restriciton on gun ownership that just limits small groups of people who we cannot trust with guns, or limitations on the numbers or types (machine guns!) of guns individuals can own - but I'm not really sure whether a total ban on guns in a city is reasonable.

Overall, the 2nd Amendment does not confer individual rights to bear arms - it just gives states the right to arm their militias. If, however, I am wrong, and it does confer individual rights, then a reasonable restriction on that gun ownership is valid -- to determine whether the regulation in this case is reasonable, I need more facts, which I don't have time to research because I am in law school and just wasted 20 minutes re-writing an assignment that I already presented...

D

2 comments:

Los said...

D.C. is a place that should allow individuals the right to have guns ... I mean, just look at the low crime rate ... wait, that's not a good example. Nevermind.

mom said...

Good job Des! You sure know how to argue!
I must say I agree. There should be restrictions on certain individuals to have guns. Not everyone could be trusted wtih a gun...you for example.