The Supreme Court wakes after a lengthy nap to the war over gun control.

The Supreme Court wakes after a lengthy nap to the war over gun control.

The Supreme Court wakes after a lengthy nap to the war over gun control.

The law, lawyers, and the court.
Nov. 20 2007 6:53 PM

They've Slept On It

Sixty-eight years after last taking on a gun case, the Supreme Court awakens to a violent debate.

There is almost nothing proponents of gun control and advocates of broad individual gun rights can agree upon. They disagree, for instance, about the interpretation of the Second Amendment's promise that the government will not infringe upon the right of the people to "keep and bear arms," and they disagree over what might constitute "reasonable regulation" of those gun rights. Late at night, when the scotch has flowed freely, they have even been known to get bent over the placement of commas in that amendment. But the one thing both sides seem to agree on is that the Supreme Court has been the Second Amendment's Sleeping Beauty, snoozing it up for close to 70 years as the states have enacted rules, advocacy groups have jumped up and down hollering, and law professors have set their bushy hair on fire, all in efforts to get some clarity. The one thing virtually everyone has come to agree on is that it was time, long past time, for somebody to kiss the damn court and bring it to life. That happened today.

The last time the high court considered a major gun case was in 1939. Gone With the Wind won an Oscar that year, 12 little girls in two straight lines first started hanging out with Madeline, and veils had returned to the spring millinery collections. Dancing With the Stars was something best left to Fred or Ginger. And in United States v. Miller, the high court considered the appeal of two men arrested for transporting an unregistered double-barreled, sawed-off shotgun across state lines. The justices determined, unanimously, that "in the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." Good night.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.


For decades the lower courts and courts of appeals let Miller stand for the proposition that the only folks entitled to a right to bear arms were state militias, which, as time marched along, meant that either nobody, or the National Guard, was protected. Chances to look at this issue would pop up on occasion, but the court would hit the snooze button. But as the court slept, the NRA grew in power and influence (it's still widely assumed that gun rights groups were responsible for Al Gore's defeat in his home state of Tennessee during the 2000 race), and most Americans today believe the Constitution confers an individual, not a collective, right to bear arms, regardless of what Miller said.

Also in recent years, some moderate and liberal law professors began to rethink their positions on gun rights as well, coming round to embrace the gun groups' view that the Second Amendment protects an individual right. Suddenly, the individual rights view embraced by the NRA began to dovetail with what the American public believed, and also with what the legal academy actually wanted. But still the high court slumbered on.

Then, someone passed the smelling salts. First the U.S. Court of Appeals for the 5th Circuit ruled in United States v. Emerson that "the Second Amendment does protect individual rights," although "that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions." Then, Chief Justice John Roberts, at his confirmation hearing stated that Miller left "very open" the question of whether the Second Amendment protected an individual right. And then last spring the Court of Appeals for the District of Columbia Circuit went further than any appeals court had gone and actually struck down the District of Columbia's sweeping, 31-year-old gun control law, on the grounds that the Second Amendment actually protects the rights of individuals, not groups. That's the case the high court agreed to hear today.