Annie got her gun
One of the easiest predictions for the new year is that we will see the first substantive Supreme Court case ever on the 2nd Amendment. As I've mentioned before, the Court has accepted review in District of Columbia v. Heller, the decision by the DC Court of Appeals which tossed out the District's gun control statute. The central question in the case is whether the 2nd Amendment provides for a collective or an individual right to bear arms.
What's surprising about this argument is the fact that there's a question about that at all. For most of the past two centuries, it has been almost universally accepted that the right is a collective one, its sole purpose being to ensure a ready militia. To be sure, gun rights advocates have argued the individual position, but for every quote from the Founding Fathers supposedly supporting that argument, opponents could trot out ten cases from various courts around the country holding that the right was merely collective, and did not in any way restrict the passage of regulations on individual gun ownership, possession, and use.
Over the last ten years, that has changed dramatically. Harvard Law Professor Laurence Tribe, indisputably liberal and perhaps the most recognized authority on the Constitution in the country, switched over and advocated the individual rights theory in his latest textbook on constitutional law. It is now widely anticipated that the Court will indeed adopt the individual rights position. (If you're interested enough in the subject, you might want to take a look at the case's entry at ScotusWiki; you'll find an analysis of the arguments, links to all the pleadings, and links to newspaper articles and blogs discussing the case in endless detail.)
That's not to suggest the decision in Heller will settle the issue, by any stretch. There's an excellent post over at Balkinization on the subject; the post and the comments below it pose observations about the issues Heller would raise if it comes down as expected. Who gets to possess guns? What "arms" are covered? What regulations can be imposed on carrying them? What test is used in determining that: rational basis? Compelling interest? Something in between?
And getting away from the abstract legal questions, this may impact some of the cases we handle. I recently had a client charged with having a weapon under disability, based on a twenty-year-old drug conviction. If there's an individual constitutional right to own weapons, does the age of the conviction and the nature of the crime preclude imposing a disability on that basis? Can you argue that there's no "compelling interest" in imposing a disability in those circumstances?
I've also mentioned before that under Federal law, penalty enhancements for having a gun require that the prosecution prove that the gun was "used in" the commission of the crime; under Ohio law, on the other hand, the gun only has to be "possessed" at the time the crime was committed. You'll find Ohio cases where people have been convicted of firearm specifications because drugs were found in the defendant's bedroom and a gun was found in his car parked out on the street. Again, if the state is required to show a compelling interest in infringing upon an individual constitutional right to possess guns, does that mean they're required to show some connection between having the gun and committing the crime?
Most of us probably have views on gun control and regulation. (Full disclosure: I used to be a strong advocate of gun control laws, but came to the conclusion a number of years back that gun control for liberals is what capital punishment is for conservatives: an issue central to their views on crime, but which really has no effect on it.) Whatever those views, the fact is that Heller will herald the beginning of the development of a significant, and up to now neglected, area of constitutional law.
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