Rethinking the Second Amendment
From the May 13, 2002 Dallas Morning News: The Justice Department's new Second Amendment stance won't make either side completely happy.
12:00 AM, May 14, 2002 • By TERRY EASTLAND
JOHN ASHCROFT is once again the subject of criticism from the left, this time for his department's filing in cases from Texas and Oklahoma in which the Supreme Court is being asked to interpret the Second Amendment. Its famous text is this: "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."
Solicitor General Theodore Olson told the Court last week that the government has changed its view. It no longer holds, as the Clinton administration did, to the "collective right" understanding--that the amendment protects only the right of the states to maintain militias. No, "the current position of the United States . . . is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service."
Ashcroft's critics fear that if the Court embraces the government's position, gun laws will be swept away, and Americans will be armed to the teeth and killing each other at unprecedented rates. The critics' parade of horribles, however, is most unlikely. Nor should it be allowed to prevent serious deliberation as to the meaning of the Second Amendment.
In the 1939 Miller case, the High Court declined to hold that the Second Amendment guarantees the right to a sawed-off shotgun because there was no evidence such a weapon had "a reasonable relationship to the preservation of efficiency of a well-regulated militia." The decision didn't reject the individual-right understanding, nor did it embrace the collective-right view.
Yet as Glenn Harlan Reynolds of the University of Tennessee Law School (and InstaPundit.com) points out, lower courts soon interpreted Miller "as requiring the person, not the firearm, to be related to a 'well-regulated militia' in order to receive protection." By the 1960s, the Miller ruling had been "stretched beyond recognition," as Reynolds says, and since then it has been reflexively cited as authority for the collective-right view.
As most courts went one way, however, academics began going another. Scholars inquiring into the amendment's original meaning have concluded that it supports the individual-right interpretation. In "Origins of the Bill of Rights" (1999), Leonard Levy writes that "the very language of the amendment is evidence that the right is a personal one, for it is not subordinated to the militia clause." He adds that the amendment's author, James Madison, "did not make the right to bear arms dependent on serving in the militia." Not a few historians have meanwhile pointed out that 19th century courts and commentators mostly embraced the individual-right interpretation.
It was inevitable that some court would embrace the new thinking. That's what happened in the case from Texas, Emerson v. United States. A San Antonio man was prosecuted by the Clinton Justice Department under a law that bars gun possession to persons under a restraining order. He claimed the law violated his individual right to bear arms. The district judge agreed, whereupon the government appealed, telling the Fifth Circuit that under Miller the defendant had no case.
Writing for that court, Judge Garwood rejected the government's understanding of Miller and instead inquired into the text and history of the Second Amendment. The long and persuasive opinion embraces the individual-right view.
But--and this is critical--the Fifth Circuit didn't strike down the challenged law: Even under the individual-right theory, it was constitutional. Why? Because, as Judge Garwood wrote, from text and history we also learn that the right protected by the Second Amendment isn't absolute and may be subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable." Judge Garwood found that the restriction imposed by the law in Emerson's case was indeed reasonable.
The Justice Department happens to agree with all of that. Which is why, even as it let the Supreme Court know its position on the Second Amendment, it also advised the Justices not to take the case.
At some point the Supreme Court will probably decide the meaning of the Second Amendment. If it embraces the individual-right view, the smart betting is that, as the scope of the right and the standard for review are worked out, most gun laws will survive challenge and those that don't will be made more "reasonable."
That's not what the sky-is-falling gun-control partisans expect, nor what some right-to-bear arms enthusiasts want. But it would be more in keeping with what the Constitution requires.
Terry Eastland is publisher of The Weekly Standard.