Thursday, December 6, 2007

Gun control?(!)

About two weeks ago, the Supreme Court granted certiorari to decide District of Columbia v. Heller. Heller is a Second Amendment challenge to D.C.'s gun law, which prohibits handguns within the district (with an exception for retired police officers) and requires that long guns be kept either secured with a trigger lock or dissembled.

This challenge to the 32-year old D.C. gun law was initially rejected by the Federal District Court for the District of Columbia in 2004. In March of last year, however, the D.C. Circuit Court of Appeals overturned the District Court's decision. See Parker v. District of Columbia. That it is now before the Supreme Court is significant because the Court has addressed the Second Amendment head-on only once---and that was almost 7 decades ago.

In Miller v. U.S., a prohibition-era case, a bootlegger was prosecuted for taking an unregistered sawed-off double-barreled 12-gauge shotgun across state lines, which was a violation of federal law. The bootlegger, Miller, argued that the federal law was an unconstitutional restriction of his right to keep and bear arms. The Supreme Court rejected Miller's Second Amendment challenge, holding that he had failed to prove that his "possession or use" of a sawed-off double-barreled 12-gauge shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia."

The Miller court did not hold that one has to be a member of a state militia to lay claim on the Second Amendment. However, it did say that that the "possession or use" of a firearm has to be reasonably related to the militia in order to be protected by the Second Amendment. Under Miller, the question is whether the possession or use of handguns in the District of Columbia is in some way related to a well-regulated militia.

Curiously, though, the D.C. Circuit refused to approach the issue under the Miller holding. Instead, it asked whether the Amendment protects the individual right to have guns, or the collective right to bear arms. This individual vs. collective question had been a point of controversy among law professors and academics, and the historical and linguistic evidence is pretty evenly stacked on either hand. But the odd thing is that Judge Silberman and my old Stake President could have avoided taking sides in the controversy if they would have just asked the question presented under Miller.

Why did they do this? They could have just said that owning handguns in D.C. is related to the militia and ended it there. Instead, they spent the time and effort to take sides in the whole individual/collective debate. Why? My best guess is that it is ideologically driven (though probably completely sincere). The D.C. Circuit is a conservative court and it is popular among conservatives to support gun rights. See, for example, Mitt Romney's recently having joined the NRA become a life-long hunter. The current ideologically orthodox position for conservatives seems to be the individual rights position. In 2001, for example, John Ashcroft wrote a memorandum changing the official position of the department of Justice from the collective rights to the individual rights view. The memo is appended to the government's brief in Haney v. U.S..

I think it was wrong for the D.C. Circuit to address the question the way it did rather than stick with the Miller precedent. But what I think is irrelevant, now, because the case is before Johnny and the Supremes and they don't have the same obligation to respect precedent that lower courts have. Not much is known about the individual Justices' views on the Second Amendment, but the speculation is that this relatively conservative Court will approve what the D.C. Circuit did. So it will be interesting to see how it all goes.

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