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The Second Amendment and Personal Preference
Special to Law.com
March 21, 2008
Howard J. Bashman
Related: Bashman Archive
What role, if any, should a judge's personal preference concerning the outcome of a case play in deciding a dispute? That controversial question resurfaced this week as the Supreme Court heard oral arguments in a closely watched case that presents the question of whether the Second Amendment to the U.S. Constitution confers an individual right to own guns.The Supreme Court has not yet definitively resolved what the Second Amendment means. The last time the Court spoke at length about the provision's meaning was in 1939 in a case captioned United States v. Miller. And the language of the Miller ruling seems to provide more support for those who argue that the Second Amendment provides only a collective, militia-based right to bear arms, instead of an individual right unconnected to service in a state militia.
No doubt the Supreme Court of 2008 will begin its inquiry with the text of the Second Amendment itself. The Second Amendment states: "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."
I have been following the debate over the Second Amendment's meaning for many years, and, like anyone who has followed the issue or reviewed the briefs filed in the U.S. Supreme Court case of District of Columbia v. Heller, I must admit that both sides in this debate offer plausible interpretations of the Second Amendment's meaning.
Consequently, it will be interesting to observe how the justices approach deciding which meaning is correct as a matter of constitutional law.
One method sure to be employed is the "original meaning" approach, which asks what the Second Amendment's words meant to their intended audience in 1791 when the Bill of Rights was enacted into law. Another approach asks what the words of the Second Amendment mean today. And a third approach attempts to determine whether the framers of the Second Amendment would have intended to prevent a municipality facing a serious gun violence problem from precluding almost all lawful gun ownership.
At the risk of over-generalizing, the "individual rights" view of the Second Amendment seems in recent years to have been principally espoused by libertarian law professors, joined by a few notable liberal law professors, and also by especially conservative Republican appointees to the federal judiciary. By contrast, the "collective rights" view of the Second Amendment has been principally espoused by a larger group of liberal law professors, Democratic judicial appointees, and law-and-order types who are distressed by the widespread gun violence in the United States, particularly in major cities.
Popular stereotypes of the nine justices' viewpoints would suggest that the "individual rights" view of the Second Amendment begins with at least four votes on the Court, from Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Those same stereotypes further suggest that at least four Justices would be more likely to uphold the challenged D.C. law, perhaps based on a rejection of the "individual rights" view of the Second Amendment. The four likely to vote to uphold the D.C. law are Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. This possible 4-4 split would once again leave Justice Anthony M. Kennedy as the decisive vote controlling the outcome of the case.
Justice Kennedy's statements during this week's oral argument suggest that he is likely to vote with the Court's more conservative wing in support of a ruling endorsing the "individual rights" view of the Second Amendment, but he may simultaneously allow reasonable regulation of an individual's right to own a gun. The outcome of the D.C. case would then hinge on Kennedy's view as to whether a city's nearly blanket ban on law-abiding citizens' right to own guns constitutes a reasonable limitation in view of the serious gun violence that the city is seeking to combat.
Unfortunately, a 5-4 ruling on the foundational question of whether the Second Amendment confers an individual right to own guns, unconnected to service in a state militia, would likely expose the Court to criticism that the justices have voted to vindicate their own personal preferences about the outcome of the case. For that reason, I hope that the Court will somehow manage to assemble more than a five-justice majority in favor of a decision about whether or not the Second Amendment guarantees an individual or only a collective right to bear arms.
By late June of this year, the Court is likely to announce what the unclear language of the Second Amendment actually means. To be sure, both the majority opinion and any dissenting opinion will read like traditional appellate court opinions applying the usual tools to ascertain the disputed meaning of an ancient text. It is simply my hope that some of the justices will defy expectation over how they will vote on the "individual" versus "collective" right issue so that we do not have to endure another summer debating whether constitutional adjudication consists of anything other than judges imposing their own personal preferences on the text of the U.S. Constitution.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
