As I explained in my previous column, federal courts have the power to declare what the Constitution means, and their opinions supersede any pronouncements by Congress, the president, the states or anyone else. And the opinion of our highest court, the U.S. Supreme Court, is the law of the land.
But the Supreme Court has never definitively ruled on what the Second Amendment means.
The Second Amendment contains 27 words: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
Almost 70 years ago, in the 1939 case of U.S. v. Miller, two defendants were charged with illegal possession of an unregistered short-barreled shotgun. The National Firearms Act of 1934 required that such firearms be registered and an expensive tax paid, which the defendants had not done.
The district court held the 1934 Act’s requirements unconstitutional on Second Amendment grounds, but dismissed the case without taking evidence on whether the shotgun was of a military nature. The Supreme Court, when it finally heard the case, could not say whether a short-barreled shotgun had a sufficient connection to the preservation or efficiency of the well-regulated militia described in the Second Amendment so as to be deserving of constitutional protection.
The Supreme Court did not hold, as some people have argued, that a short barreled shotgun was not protected by the Second Amendment, but rather that you needed evidence to determine whether it was the type of weapon contemplated by the constitutional guarantee.
The Supreme Court remanded the case to the district court for the taking of such evidence, but in the interim, Mr. Miller (a former bank robber) had been murdered, which made further proceedings unnecessary.
In the almost 70 years since U.S. v. Miller, the high court has never had to rule on the Second Amendment. But just a couple days ago, the D.C. Circuit Court of Appeals denied a petition for rehearing en banc in the case of Parker v. D.C. That’s the case in which the D.C. Circuit Court held in March that the District’s gun ban violates the Second Amendment.
If the Parker case reaches the Supreme Court, the justices will have to determine whether the Second Amendment protects an individual right to keep and bear arms.
If the court finds that it does, then owning a firearm would be what the law considers a fundamental right. One of the rules of constitutional law is that any law (whether a statute, regulation or town ordinance) impacting a fundamental right is subject to strict scrutiny. Under strict scrutiny, a judge must presume that the law in question is invalid, and a court will uphold the law only if it is found it be narrowly tailored to further a compelling government interest. Laws that are subject to strict scrutiny frequently are struck down as unconstitutional.
That means city ordinances banning handguns or state laws prohibiting guns in state parks would be subject to strict scrutiny, and many would be struck down. Regulations such as those not allowing you to have a firearm on an airplane would likely be upheld, but laws that interfere with normal citizens having the means of self-defense in their homes or businesses would not survive.
If, on the other hand, the Supreme Court finds that the Second Amendment only grants states a collective right to arm National Guard units, then the consequences for the gun-rights movement could be disastrous. From that moment forward, Second Amendment rights for private citizens would be in serious jeopardy. Gun ownership could become a privilege, not a right (unless you live in a state where the state constitution contains a right to bear arms provision.)
Many millions of Americans, especially those in the middle of the political spectrum, tend to defer to the Supreme Court on constitutional questions. When the Supreme Court speaks on a matter, they tend to trust in its judgment and authority.
Right now, over 70 percent of Americans accept that the Second Amendment gives individual citizens the right to own private firearms. But if the Supreme Court were to say otherwise, you could expect that number to plummet. The next generation of lawyers, scholars, academics and even judges would all be taught as they were growing up that there is no constitutional right to own a gun. These people would shape public opinion and educate those coming after them, until eventually the percentage of Americans believing in the individual rights view might only be 20-30 percent of the population.
Should that happen, the public support would no longer be there to resist major gun-control laws, or possibly even outright gun bans.
The Parker case is winding its way toward the Supreme Court, and the stakes are enormous. Pro-freedom organizations like the NRA may continue to have incredible success in passing state and federal laws to protect and restore our civil rights regarding firearms, but all could be lost if we lose the core issue in the Supreme Court. Keep an eye on the Parker case. And remember that America needs a Supreme Court that will protect the Second Amendment.
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