The Tricky Part

Glenn Reynolds points out quite clearly what the choices the Supreme Court has when it decides the Washington, DC gun ban case next year. Essentially, the three choices the court has only has one that most gun owners would find acceptable. The other two are ugly indeed.

* It can find that the Second Amendment doesn't really do anything - that it's merely a relic of an older era. But that's a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?

* It can find that the Second Amendment doesn't grant individual rights, but only protects the right of states to arm their militias (or "state armies," as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don't like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear…..

….* Finally, the court can find - in accordance with the views of law professors as diverse as Harvard's Laurence Tribe and, well, me - that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.

In many ways, the last option is not much more than leaving things pretty much as they are but will affirm the Second Amendment as an individual right. If the court picks the first option, I rather suspect there will be more than a little backlash by the electorate. Overturning the bill of rights by judicial fiat would be a disaster for this nation. (I hope they are not even considering anything like that, by the way.)

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  By NortonPete, Wednesday, 21 November , 2007 @ 4:48 pm

  This is the most concise review of the SCOTUS options I’ve seen to date. Thanks I have been searching about for something like this.
  I agree its going to be the third option. Look back to the case in the 30’s, it was a sawed off shotgun interstate case. The ruling did not interfere with the Second Amendment but did agree that sawed off shotguns are something that could be regulated.
  Option 1 would create a serious problem and thats not what the SC does, option 2 would mean chaos, again not what the SCOTUS likes to create.

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  By Quilly Mammoth, Wednesday, 21 November , 2007 @ 5:47 pm

  NortonPete is right _except_ that recently SCOTUS has been sending more things back to State control. So say OPtion Two is picked. How long would it take Red States to make a law that says “every citizen over 18 is a member of the unorganized militia.” Then depending on how strong the gun owners are we see the next SCOTUS case being “The Ames Iowa Horse Mounted Machinegunners vs. BATF”?

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  By NortonPete, Wednesday, 21 November , 2007 @ 7:00 pm

  Quilly Mammoth:
  What then happens to the Federral Fireams ID? I’m having a problem invisioning that being dissolved. You have a point but what about the outcome?

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  By Quilly Mammoth, Thursday, 22 November , 2007 @ 9:48 am

  That’s the point exactly. If SCOTUS throws it back to the states, and some states make it law that a group of people are part of the State’s Unorganized Militia how can the BATF regulate? Only the State would determine to what level the general militia is armed, and how they are armed.

  In fear that the body of citizens would not be armed well enough, or organized well enough, Congress passed the Militia Act of 1792:

  I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.”

  http://www.constitution.org/mil/mil_act_1792.htm

  Not only were citizens required to arm themselves to the standards of the military of the time, their weapons could not be taken from them to satisfy a debt…they weren’t cheap.

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  By martian, Thursday, 22 November , 2007 @ 10:38 am

  As I’ve said many times before (and once before here at the crabitat) the prevailing definition of “militia” at the time that the Second Amendment was written was that it consisted of EVERY ABLE BODIED ADULT MALE in the jurisdiction of each militia. Quilly Mammoth has provided the proof of this above. Thus, even if the SCOTUS chooses option two, it still means all able bodied adults (since women are now included in anything that is legal for men) have the right and duty to own firearms.

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  By NortonPete, Friday, 23 November , 2007 @ 8:04 am

  Thanks Quilly Mammoth, very interesting. I hope the SCOTUS reads this post.

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