Last week, with little fanfare, the Supreme Court refused without comment to review a 9th Circuit Court of Appeals decision that the Constitution does not guarantee people a personal right to own a gun. In doing so “without comment,” the court neither agrees nor disagrees with the 9th Circuit panel. As a citizen and an owner of firearms, I am extremely disappointed in the Supreme Court’s cowardice.
Perhaps the court was taken aback by the storm of outrage after its last delving into highly charged ground with Lawrence v. Texas, overturning sodomy laws and sparking a nationwide cultural battle. If this is the case, it is yet another unfortunate consequence of that ruling. The issues are separate, and while conservatives and liberals disagree over the relevance of the Constitution to sodomy laws, the Constitution definitely lies at the heart of the issue of the firearms debate.
In this swirling melee, the Second Amendment stands as the bulwark of law-abiding gun owners and the stumbling block of gun control advocates. The only way the issue might be settled is through the Supreme Court, the arbiter and interpreter of the Constitution.
The last significant case regarding the Second Amendment was in 1939, an astounding 64 years ago. The Supreme Court relies heavily on precedent; its precedent on this issue has been to ignore and avoid it if at all possible.
But what precedent does the 1939 case, United States v. Miller, give? Most gun control advocates parade Miller around as a refutation of gun owners’ claim to the Second Amendment. In the case, the Supreme Court denied Charles Miller his Second Amendment appeal because the weapon he possessed was a sawed-off shotgun, which the high court deemed to have no practical use as part of a militia. Indeed, the case rejected the government’s contention that the Second Amendment guarantees only a collective right, and the court explicitly endorsed an individual right to keep and bear arms appropriate for militia use. The court did not think a shotgun with a short barrel was appropriate for militia use but qualified even this by saying that if given evidence to the contrary, the court might change its view.
Obviously, this presents great difficulty to gun control advocates. They assert there is no individual right to keep and bear arms. Rather, they see a protection of a collective right to own arms, usually in the form of the National Guard, silly as that seems to gun owners. But this is that same contention the government made, and the court dismissed, in the Miller case. The “collective right” theory is not based on history, legal precedent or the Constitution. Rather, it is entirely a social policy endorsed by liberal politicians who attempt to graft the policy into the Constitution through skullduggery.
An honest approach to gun control would be to seek an amendment to the Constitution repealing the Second Amendment as outlined in Article V. Of course, such action is politically impossible and would not only be rejected by Congress but also by the states and by the people themselves. The right to “keep and bear arms” is fundamental to Americans. It was crafted by James Madison in such a way that it supported the militia system of defense and also recognized the natural right of all men to keep and bear arms to defend themselves, as set in the English Bill of Rights. Although the government might regulate it to a reasonable degree, it should do so only with the understanding that our right to bear arms should be no less regarded than our freedom of speech or religion.
As Supreme Court Justice Clarence Thomas wrote, “A growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the amendment’s text suggests, a personal right.” That is why the Supreme Court’s refusal to hear the case is so disappointing.
The issue must be decided, and the longer we go without guidance on it, the more confusing it will become. Whereas the 9th Circuit found no individual right, the 5th Circuit has found such a right. In one section of the country, it is a right; in another, it isn’t. President Bill Clinton’s administration did not recognize such a right. Former President George W. Bush’s administration does. Who knows what will follow?
The case law is incomplete and the courts are in conflict with each other. It cannot be left to the disparate circuit courts. The Supreme Court must decide the issue. While it stands by idly, the battle rages outside its hallowed halls.
Dan Nelson is chairman of Campus Republicans. He welcomes comments at [email protected]
