The Supreme Court’s Minefield

On Friday, the National Rifle Association broke it’s silence. After hunkering down for a week after the atrocity in Connecticut, to carefully consider its position, the organization announced that the best solution to the steady march of massacres is an armed guard in every school.

Apparently, the NRA overlooked the failure of an armed sheriff’s deputy to do much to stop the killings at Columbine.

According to the NRA, “The only thing that stops a bad guy with a gun is a good guy with a gun.”

What the NRA failed to address is the best way to stop a suicidal guy with a gun. Or did they mean to suggest that the only way to stop a fanatic wearing a suicide vest is with citizens lobbing their own explosives?

The NRA is clearly wrong. One can appreciate that hunting and shooting are avocations reasonably enjoyed by many, without taking the absurd position that everyone else should therefore go about armed and prepared for firefights in the streets. Even in the fabled Wild West, most people had no stomach for this and couldn’t get real peacekeepers in place fast enough.

The Vice President of the United States has been tasked with recommending policy changes. While it has been pointed out many times that there are already 300 million unregulated guns in private hands, the real challenge is largely unspoken. Vice President Biden and his staff face a legal minefield.

The Supreme Court has stretched the Second Amendment far beyond what the Court held in its early decisions, without adding much in the way of clarity, and the scope for litigation seems boundless.

In it’s first decision (U.S. v. Cruikshank, 1876) the Court held that the right to bear arms was not in fact granted by the Constitution. “The second amendment declares that it [the right to bear arms] shall not be infringed, but this, as has been seen, means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”

Later, the Court changed tack and in 1886 (Presser v. People of Illinois) decided that something else was at work, apart from the Second Amendment: “…all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States…the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security…”

In 1939 (U.S. v. Miller), the Court held, “The Second Amendment must be interpreted and applied with a view to its purpose of rendering effective the Militia.” Although some people misunderstand this, the Court noted that “the Militia comprised all males physically capable of acting in concert for the common defense”, and that, “ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time”.

In other words, “the militia” is not some formal organization that you enlist in. By tradition and legal precedent “all males physically capable of acting in concert” are in fact the militia.

But the Court was not finished. Activist conservatives reinterpreted the Constitution again, sidestepping questions of whether an “effective Militia”, so defined, is any longer a “resource for maintaining the public security”, or whether arms “of the kind in common use at the time” would now have to include hand grenades and other individual weapons that would be needed by the national government to defend the United States.

In District of Columbia v. Heller (2007), the Court held, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Note that “self-defense” was cited as an example of a “traditionally lawful purpose”, not the sum toto. Presumably recreation is also a such a purpose, and a future plaintiff might argue that his collection of rocket launchers used to explode junk cars is a form of constitutionally protected recreation.

And in McDonald v. Chicago (2010), the Court used the Fourteenth Amendment to extend the reach of the Second Amendment to the states.

I do not envy the Vice President his task.

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