by Jonathan Wallace jw@bway.net
There is a common misconception today that the Second Amendment guarantees an individual right of gun ownership. As I said in my meta-message, the clear import of twentieth century federal caselaw has been that the Second Amendment is a right held by the states against the federal government, and that there is no individual right to sue either a state or the federal government under the Second Amendment. Please note that some state constitutions grant much greater rights of gun ownership than the U.S. Constitution and that there are other grounds, such as the Commerce Clause, under which gun control legislation has been invalidated. The purpose of the following is merely to argue that the Second Amendment has a much different contemporary meaning than gun rights advocates assign to it.
At all times in discussing constitutional issues, it is extremely important to distinguish the "is" from the "ought". The Constitution at any given point "is" what the Supreme Court says it is. If we the people don't like the result, we can pass a constitutional amendment (I can imagine one far less ambiguous than the Second, making no reference to militia), or wait for a better Court (I'm not going to touch the revolution option with a ten foot pole!) Meanwhile, our cries of disappointment really are just statements that the Court "ought" to do something different.
At the end, I will again draw attention to what I regard as some profound differences between Libertarians and Second Amendment advocates.
In a 1996 federal court of appeals case, Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), plaintiff sued in federal court claiming that his Second Amendment rights had been violated by the denial of a concealed carry licence by various California government entities. The court summarized the question it had to decide as " "whether the Second Amendment confers upon individual citizens standing to enforce the right to keep and bear arms."
The court said: "Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed."
Hickman had argued that "individuals have a right to complain about the manner in which a state arms its citizens." The court failed "to see the logic in this argument":
The Second Amendment creates a right, not a duty. It does not oblige the states to keep armed militia, or to arm their citizens generally, although some states do preserve, nominally at least, a broad individual right to bear arms as a foundation for their state militia....Even in states which profess to maintain a citizen militia, an individual may not rely on this fact to manipulate the Constitution's legal injury requirement by arguing that a particular weapon of his admits some military use, or that he himself is a member of the armed citizenry from which the state draws its militia....Because the right to keep an armed militia is a right held by the states alone, Hickman has failed to show 'injury' as required by constitutional standing doctrine.
The court, claiming unanimity among the federal circuits, cited a number of other decisions. (I recommend that all readers go look at Hickman for themselves; you can find it online via the Findlaw page, http://www.findlaw.com).
It also relied on the Supreme Court's only direct statement on the Second Amendment in this century: United States v. Miller, 307 U.S. 174 (1939). Miller was indicted for carrying a sawed-off shotgun across state lines, and argued that the Second Amendment gave him the right to possess such a weapon. The Court held that "[i]n the absence of any evidence tending to show that the possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." The Hickman court, citing this language, noted that "it is only in furtherance of state security that 'the right to keep and bear arms' is finally proclaimed."
I am going to get mail from readers citing Stephen Halbrook and others for the proposition that sawed off shotguns in fact have a reasonable relationship to militia operations and that Miller's trial attorney failed to get the evidence in. I agree that Miller does not say exactly what the Hickman case cites it for: it appears to leave the door open for future findings that other weapons bear a "reasonable relationship".
But where are these findings? In the sixty years since, no-one has ever gotten the Supreme Court or any other federal court to say that the U.S. Constitution protects the individual ownership of any weapon or invalidates any of the numerous gun control laws passed since then. Personally, I think that the Supreme Court stays away from Second Amendment matters and decided this case on the narrowest possible grounds, avoiding a more sweeping determination. If the weapon has no militia use, we don't have to discuss whether there is any individual Second Amendment right.
Another significant point: when the Fourteenth Amendment was passed, the courts began a long process of determining which provisions of the bill of rights were "incorporated", meaning which restrictions on federal action were now applied to the states. The Hickman court held that even if Hickman had individual standing to sue for a federal action, the Second Amendment is not "incorporated", meaning that he had no right to complain of a state violation of his gun rights. Under this analysis, the Second Amendment simply doesn't protect individuals from state laws, even if it does protect them from federal action.
John Trentes, please comment: I have heard it said by gun control advocates, but have not myself verified, that the NRA *never* relies on Second Amendment grounds when it tries to overturn gun laws. Instead, it alleges that the law is vague, violates the Commerce Clause, a state constitution, etc. I assume that if anyone thought that the Supreme Court was likely to disagree with Hickman or extend Miller to support broad Second Amendment rights, we'd see a lot of Second Amendment litigation.
John said in his meta-message that he believes that the right to bear arms arises under natural law and is not granted, nor taken away, by the Constitution. Matt spoke of an individual obligation to bear arms, which I assume he also means exists somewhere before, and above, the Constitution and laws. I respect these views, but so far as they pertain to the extremely specific and technical question of what the Second Amendment means today, both represent an "ought", not an "is."
After writing these words, I went back and re-read John's meta-message, and in fact it is entirely drafted in terms of an "ought": he believes the courts have misstepped and ought to have done something different.
Finally, as I will do in every message, let me highlight the great differences between libertarians and Second Amendment advocates. In my meta-message, I postulated a real estate development, Walden Township, of which I am the owner. In pursuit of my sacred property rights, I decide to sell only to people who will agree, as a matter of contract, not to keep guns on the premises. My understanding of libertarian theory is that the foregoing is perfectly legitimate. As a result of the meta-message, I have already received email from at least one reader asking whether the government should not invalidate such restrictions in my private contracts.
John, I'd invite you to comment on the following: would you favor legislation invalidating my deed restrictions in Walden Township? What about the portion of the Texas concealed carry law which confirms a business owners right to choose to exclude concealed weapons from the premises?