Published: December 10, 2007 11:10 am            

Constitutional philosophy likely to determine gun owners’ rights

View From the Bench

In what many observers believe to be the most momentous court case for generations, the U.S. Supreme Court is poised to finally determine the parameters of the Second Amendment in a case styled Parker v. District of Columbia. The outcome may turn more on the individual justices’ approach to interpreting the Constitution than the actual facts which gave rise to the litigation.

At issue is the District’s strict gun control laws. Several plaintiffs, including Dick Heller, a special police officer charged with protecting the Federal Judicial Center, filed suit seeking to prohibit the District from enforcing laws which preclude an individual citizen from possessing a pistol within his own home and which required that registered long guns be kept disassembled and unloaded in the home.

Thus far, Heller’s lawsuit has been hugely successful. Although he and the other plaintiffs lost at the trial court level, a federal Court of Appeals determined earlier this year that the Second Amendment conferred an individual right to keep and bear arms. Consequently, the District’s laws were unconstitutional.

Since then, the justices of the Supreme Court have accepted the case, thus setting the stage for the ultimate gun control showdown. The Second Amendment provides that “[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.” If the high court agrees that this language confers an individual right, than many, if not most, of the nations’ gun control laws may be struck down.

However, should the Court determine that the Second Amendment confers a “collective right”, than firearms restrictions are likely to withstand future constitutional challenges. The stakes are enormous. World Series of Poker final table enormous. Super Bowl enormous. In fact, some characterize the importance of this case for some Americans with Roe v. Wade and Brown v. Board. of Education.

Undoubtedly, the individual justice’s approach to this issue will be guided by their own perception of whether the Constitution is a “living document” or should be applied as the framers originally intended. The distinction in these two approaches could potentially make all the difference in how the 27 words which make up the “right to bear arms” clause will be applied for many years to come.

“Originalists” or ‘textualists” believe the Constitution’s meaning was fixed by the drafters’ intent, and that judges should not be free to interpret the Constitution in a manner at odds with the original meaning. An originalist approach is more restrictive, requiring the federal government to operate within the written strictures of the Constitution. When society determines that a policy change is needed which is not contained within the Constitution, an amendment is required.

The “living document” approach, however, permits the Constitution to be utilized in a flexible manner, adaptable to meet the ever changing needs of society. This approach permits the integration of social policy into federal judicial decision making.

Most contemporary constitutional scholars agree that Justices Clarence Thomas and Antonin Scalia are “originalists” and thus more likely to declare that the Second Amendment confers an individual right to bear arms. Justices David Souter, Ruth Bader Ginsburg, John Paul Stevens and Stephen Breyer are perceived as more likely to view the Second Amendment as conferring a collective right, one that is subject to reasonable regulation by the federal and state governments. It’s too early to tell about Chief Justice John Roberts and Justice Samuel Alito. Justice Kennedy remains an unknown.

No one can predict the outcome of Parker. Only three prior U.S. Supreme Court cases in 1876, 1886 and 1939 have focused on the Second Amendment. The current Court, should it elect to not sidestep this polarizing social issue, may well decide not only the rights of millions of gun owners but also the manner in which future courts interpret the sometimes sparse language of our Constitution.

        

• Click to discuss this story with other readers on our forums.