Heller Today?

Ken AshfordConstitution, Gun Control, Supreme CourtLeave a Comment

UPDATE, BREAKING NEW (11:30 a.m.):  Although not related to the gun issue below, the Supreme Court just ruled that it is "cruel and unusual punishment" to give the death penalty to a man who raped an 8 year old.  It was a 5-4 decision, but I don’t know the breakdown.  Interestingly, victims’ rights groups didn’t want the death penalty for something like this, because they feared that child rapists would be more likely to kill their victims if they knew they could get the death penalty for rape.  Not sure I agree with that.  But I do worry about the slippery slope.  We really should reserve the death penalty for crimes where the victim is killed.  Anyway, on to the post….

I suspect today is the day when we learn the Supreme Court’s decision in D.C. v. Heller, and it will no doubt be the lead story in the media. [UPDATE:  According to Orin Kerr, I’m wrong.  It’ll be out tomorrow].

For those of you without a scorecard, D.C. v. Heller, one of two cases remaining from this year’s docket for which an opinion has not been rendered, is without doubt the most important case to come to the Supreme Court on the issue of gun rights.

For decades, people have argued whether the Second Amendment grants an individual right to own guns, or a collective right.  The Second Amendment text reads in full:

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.

The individual-right argument is that the Second Amendment gives everyone a right to own a gun, for whatever reason.  The collective-right argument says, "Whoa there.  Clearly the framers intended people to have that right inasmuch as they have the right to form a well-regulated militia.  You can only have a gun for purposes of being in the militia"  (And, since we no longer have militias, you don’t have a right to own a gun for all intents and purposes).

The arguments on both sides are compelling.  Individualists say that all the other amendments in the Bill of Rights are individual rights — why make the Second Amendment different?  (I would couterargue that the right to assemble isn’t an individual right, but that’s another story).  Collectivists point out that "bear arms" is a military term, and you can’t just "read out" the whole Militia/security clause.

There’s no "right" answer.  We don’t know what the framers meant.  They themselves probably weren’t of one mind.

So how to resolve it?  Well, that’s why they pay the big bucks to the Supreme Court.

But the Supreme Court has punted on this issue for decades.  Heller will put an end to that.

In a thoughtful post, on the assumption that the Court will hold that the Second Amendment reflects an individual right (I agree with that prediction), Professor Mike O’Shea addresses the incorporation question. 

What is "incorporation"?  That’s the 14th Amendment, which says (in pertinent part):

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What that means, in layman’s terms, is that if the federal constitution protects a "right", then the states cannot come along and take it away.  (The 14th Amendment was a by-product of the Civil War, which was, in part, about states’ rights).  "Incorporation" means that a particular right guaranteed by the Constitution has been applied to states as well.

Not all the rights in the Bill of Rights have been incorporated to the states.  The Establishment Clause, the right to counsel, the rights of free speech, assembly, and petition, and the right against unreasonable searches and seizures, the right against self-incrimination, and a slew of others have all been incorporated.  The right to indictment by grand jury (in the 5th Amendment) and the right to a jury trial in civil cases (7th Amendment) has been held as NOT being applied to states.

But in Miller v. United States, back in 1894, the U.S. Supreme Court specifically said that the Second Amendment does not bind the states through 14th Amendment incorporation.  In other words, while the federal government cannot infringe the Second Amendment right (whether it be an individual right, a collective right, or something else), states still can.

In a sense, this may render the whole individual/collective argument moot.  Unless, of course, the Heller decision overturns Miller.

The incorporation issue presents a problem for conservatives.  They tend to support the "individual right" view of the Second Amendment.  But they also tend to support the "state’s right" view of federalism, meaning (in essence) that the federal government cannot tell states what to do.  Justice Scalia himself once wrote in his book A Matter of Interpretation: Federal Courts and the Law (1997):

[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual’s right to bear arms for self-defense. … Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. … [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.

I suspect, however, that the Supreme Court will not address the incorporation question, since that is not an issue in this case.  It will be some other day, in some other case.

But setting aside the incorporation question, the long debate will probably end today (or within the next few days) on one of the hottest debates in the legal/constitutional arena.  Watershed, it will be.