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.
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.
That the court finally agreed to do so isn't surprising. After Emerson and the D.C. case, there is a whopping split between the appeals courts. And parties on both sides of the D.C. case urged the court to take the case. Also, since the court has been napping, life has changed dramatically in America, as have guns, militias, and gun laws. But the thing that has both gun opponents and gun supporters terrified and hopeful in equal parts is that this court that is rubbing the sleep from its eyes is not the court of 1939, or 1959, or even 1999. The days of 25-paragraph unanimous decisions in cases as explosive as Miller are long gone. Most school kids probably think the sawed-off shotguns at issue in Miller are adorable, and four sitting members of the Supreme Court were on hand to celebrate the Federalist Society's 25th anniversary last week. * The current justices are well aware of the debate that has raged in the law reviews about the meaning of the Second Amendment, and they also know full well what happened at Virginia Tech.
There are many small and great ways in which a truly humble, minimalist Roberts court could make the D.C. gun case go away, as it has made so many other worthy cases go away in the past two years. There are looming disputes over whether the plaintiffs have standing to sue, as well as questions about whether the District of Columbia, a federal enclave, is even covered by the Second Amendment. There are, as well, enormous questions—on both sides—about what kind of regulations are "reasonable" and how to gauge that. But there are also, for the first time in decades, four strong conservatives on the high court, who have each, at different times and in different ways, telegraphed some small interest in revisiting this question, although not all would go so far as Clarence Thomas, who has written that he would like to restore the Second Amendment as the "the palladium of the liberty of a republic."
And so we have both sides warily hoping the court will do something bold and authoritative in District of Columbia v. Heller, so long as it tips the scales their way. It's a monstrous gamble for both groups, a gamble the gun rights crowd wouldn't have considered taking three years ago, and one the gun control folks wouldn't believe it could have lost until very recently.
Anyone who's ever attempted to smooch something that's been sleeping for 70 years knows full well that—even if you can get past the morning breath—it's awfully hard to control what happens next. Heller—which will inform the 2008 election in ways we haven't even begun to contemplate—is poised to turn the Supreme Court from everyone's Sleeping Beauty to somebody's slumbering Beast.
Dahlia Lithwick writes about the courts and the law for Slate.