When the U.S. Supreme Court declared a portion of the Brady Bill unconstitutional under the 10th Amendment last year, Justice Clarence Thomas concurred, but questioned whether the federal handgun law might also run afoul of the Second Amendment, a question the court had not been asked to decide.
"This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment," Thomas wrote, suggesting that "perhaps, at some future date" such an opportunity might arise.
Perhaps.
These are strange times in the 207-year life of the Second Amendment, one rather oddly constructed 27-word sentence that has come to reflect American culture perhaps as much as American law: "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."
In gun-control debates -- and there have been many in recent years -- the amendment forms a backdrop not unlike the giant American flag in the opening scene of "Patton." After Charlton Heston assumed the presidency of the National Rifle Association in June, he told a television interviewer that the Bill of Rights
"supports freedom of speech, freedom of religion and the freedom to own firearms." His views are echoed in a lively debate that has been going on in the law journals, which in the last 15 years have published more scholarly writing on the Second Amendment than had appeared in the previous century.
Yet, the U.S. Supreme Court, which might clarify the amendment's meaning, has not seen fit to join the conversation. Next year, it will be 60 years since the Court ruled on a Second Amendment case. In 1939 The court decided in U.S. vs. Miller that the 1934 National Firearms Act, the first step toward national gun control, did not violate the Second Amendment.
That hardly settled the issue. As George Washington University law professor and historian Robert J. Cottrol has observed, "both sides claim that the Miller [decision] vindicated their position."
Given any ambiguity, people at opposite ends of the gun argument draw entirely different conclusions. As culturally divisive subjects go, put gun ownership high on the list with abortion. Partisans for gun control and gun ownership alike find validation in whatever is or is not happening.
Dennis Henigan, director of the Legal Action Project of the Center to Prevent Handgun Violence in Washington, says the lower federal courts have ruled consistently since the early 1940s. The Supreme Court, seeing no dispute among them, finds no reason to get involved, he says. The question is settled, he says: The amendment protects the state's authority to organize militias, not the individual right to carry a gun.
For gun owners, says Henigan, the Second Amendment is nothing more than a political slogan. "The NRA needs this Second Amendment mythology to motivate its activists," he says. "I think it is an exercise in mass self-delusion by the pro-gun movement. They act as if the courts have not spoken on this, or as if it doesn't matter that the courts have spoken."
Since 1942, U.S. Circuit Courts of Appeal have ruled in 22 Second Amendment cases, each time affirming the amendment's militia clause, rather than the "right of the people" to own guns. The courts have also held that membership in a private militia does not create an absolute right to gun ownership.
Applicants in six cases decided in the circuit courts since 1942 asked to have their appeals considered by the U.S. Supreme Court. All were denied a hearing.
The Brady Bill case -- argued by an NRA lawyer -- failed in its attempt to strike down the waiting-period requirement, but succeeded in having background checks declared unconstitutional under the 10th Amendment as an attempt to have state officers enforce a federal law.
The NRA's chief lobbyist, Tanya K. Metaksa, dismisses the notion that the organization has abandoned the Second Amendment as an argument before federal courts.
"That's absolute nonsense," she says. "We had a much better chance to win on 10th-Amendment grounds." The NRA will pursue a Second Amendment appeal, she says, when it finds a strong case.
Metaksa says a favorable Second Amendment ruling by the Supreme Court would provide an important "psychological" victory. Cottrol says such a ruling could lead to a more constructive, less emotional gun-control debate, assuring gun-ownership advocates that their right is recognized.
In practical terms, it appears the cause of gun ownership has generally not been stymied by unsympathetic federal courts.
Metaksa points out the organization's success at the state level, particularly in supporting "right to carry" laws. Since 1985, the number of states that will issue a concealed-weapon permit to any citizen without a criminal record, no questions asked, has expanded from eight to 31. The number of guns of all types in circulation in America is estimated between 220 million and 250 million, the NRA says.
In legal journals and in the public mind, the individual-rights interpretation of the Second Amendment prevails. Even gun control advocates acknowledge that the NRA has influenced the public's, if not the federal judiciary's, perception of the Second Amendment.
After hearing the amendment read aloud, two of three people said "yes" when asked: "Do you think this amendment should guarantee individuals the right to own guns?" Roughly the same percentage of people, however, also agreed that gun regulations do not violate their constitutional rights.
Each side in the Second Amendment debate accuses the other of packing the legal journals with articles by paid partisans. The reality is more complicated, as independent scholars of various political persuasions have weighed in on a constitutional question that was ignored by academics for years. In analyses of the amendment's intent, most scholars say historical evidence supports the individual-rights interpretation.
Perhaps this explains the reluctance to deal with the subject, wrote Sanford Levinson, a University of Texas Law School professor considered politically liberal. In a 1989 article in Yale Law Review, Levinson noted his suspicions that the legal academy ignored the subject for years out of opposition to gun ownership and "subconscious fear" that persuasive Second Amendment arguments might be found, which might then undermine gun control.
On the Supreme Court, a similar situation has prevailed for years. David C. Williams, constitutional law professor at Indiana University, says the Second Amendment is perceived as the "property of a certain group that has no representation on the court."
William Van Alstyne, constitutional law professor at Duke University, says this moment in Second Amendment history recalls the years preceding a Supreme Court shift toward more liberal First Amendment opinions after World War I: a spate of restrictive free-speech legislation sparking public and scholarly debate.
Second Amendment devotees are encouraged by Thomas' note the Brady case. Maybe some day, he wrote, the court will have a chance to assess the view of 19th-century Supreme Court Justice Joseph Story, who wrote that the right to bear arms "has justly been considered as the palladium of the liberties of a republic."
Pub Date: 8/23/98