Apres la Revolution
Last year, the US Court of Appeals for the District of Columbia threw out the District's gun control law, which essentially banned the possession of handguns. Yesterday, the Supreme Court heard oral argument in the case, and two things are relatively clear: First, the Court is going to confirm that the 2nd Amendment grants an individual right to bear arms, rather than a collective right connected to service in a militia. Second, no one has a real clear idea on what that will mean, or whether it will mean anything at all.
Walter Dellinger, the District's lawyer, had barely gotten two minutes into his argument before Chief Justice Roberts and Justice Kennedy were all over him like a cheap suit, contending that the first phrase of the 2nd Amendment -- the "well-regulated militia" part -- could be delinked from the second phrase granting the "right of the people" to bear arms. Scalia and Alito soon joined in the fun, and given the proclivities of Silent Clarence, there's not much doubt as to how this is going down. Even Breyer and Souter made comments supportive of such an interpretation.
It is hard to overstate how revolutionary a development in constitutional law this is. For over two centuries, no legal scholar unassociated with the National Rifle Association, and no court, had questioned the proposition that the 2nd Amendment guaranteed only a collective right to bear arms. One would be hard-pressed to identify another constitutional provision over which there had been so little debate as to its meaning. And, in a span of less than a decade, that understanding has been turned upside down.
Of course, now comes the tricky part. The normal test for determining the constiutionality of a particular law or regulation is the "rational basis" test: the law is presumed constitutional, and can be overturned only if it's shown to be completely arbitrary. A law infringing on a fundamental right faces the much more rigorous "strict scrutiny" test: the law will be held unconstitutional unless the state can show a compelling governmental interest, and that the law is as narrowly drawn as possible. Here's where it gets dicey. What's Ohio's "compelling governmental interest" in prohibiting someone who's got a fourth-degree misdemeanor marijuana conviction from owning a gun, and subjecting them to a potential five-year prison sentence if they do? There are thousands of gun regulations throughout the United States, many of which wouldn't survive a strict scrutiny test.
Everybody seemed to realize that, none more so than the Bush administration itself. The Solicitor General filed an amicus brief, and participated in the oral argument, to advance the position that the Court should adopt a "reasonableness" standard, and vacate the DC Circuit's decision and remand the case back for consideration of whether the DC ban meets that standard. In short, it's entirely possible that the gun rights position will be adopted, but with the result that the standard used in determining whether a regulation violates the right will not be much different from the current interpretation of the 2nd Amendment.
That doesn't detract from the historic significance of the moment, and according to the Blog of Legal Times, people started lining up to get seats for the oral argument at 3:00 AM the morning before. One of them was
19-year-old Angela A., a sophomore at George Washington University. "I'm kind of a nerd about this stuff," she said. "I had to come."
A native of the San Francisco Bay Area, Angela said that she's "kind of a pro-gun girl."
Then she added, "But no one will take me shooting."
Well, Angela, I don't mean to wuss out on you, but in the immortal words of Bob Dylan, "it ain't me, babe."