December 18, 2007

• U.S. v Miller: Benign Neglect

Posted in From The Blog-O-Sphere, Legal at 8:12 pm by Rid

by Steven Duke Laser

U.S.v Miller: A Product of Benign Neglect

December 18, 2007 02:00 PM EST

In Parker v. District of Columbia, the United States Court of Appeals for the D.C. Circuit struck down portions of the D.C. Firearms Control Regulations Act (FCRA) – a law that essentially prohibits any D.C. resident from possessing or controlling a handgun. Senior Circuit Judge Laurence H. Silberman (a Ronald Reagan appointee) authored the Parker opinion and the D.C. Circuit Court joined the United States Court of Appeals for the Fifth Circuit in holding that the Second Amendment to the U.S. Constitution protects an individual’s right to own and operate a firearm for a private use. The Second Amendment provides: “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.”

The Supreme Court agreed to review the case (on appeal as D.C. v. Heller) and oral arguments are set for March 2008. The High Court’s historic relationship with the Second Amendment can easily be described as “benign negligent” as there have only been a handful of cases in which the Supreme Court has addressed the issue directly. This lack of judicial authority on the subject has led to a divergence of academic opinion. For example, conservatives and moderates believe that the Second Amendment secures an individual right from governmental intrusion. On the other hand, those on the far left believe that the Amendment only creates a right for States to preserve local militias. Of course, since founding era militias no longer exist, liberals essentially believe that the Second Amendment is obsolete law.

A cursory review of the leading Second Amendment case, United States v. Miller, as well as an unrelated World War II detainee lawsuit, reveal that the Supreme Court has in fact recognized the Second Amendment as granting an individual right – albeit an individual right with specific limitations. In Miller, the Defendants were charged with transporting an unregistered sawed-off shotgun across State lines in violation of the National Firearms Act (NFA) of 1934. The trial court agreed with the Defendants’ argument that the NFA violated their Second Amendment right to keep and bear arms and ultimately dismissed the government’s case. Upon appeal, the Supreme Court reversed the lower court’s decision on the basis that it took judicial notice (instead of conducting an evidentiary proceeding) that a sawed-off shot gun was a militia-style weapon privileged to Second Amendment protection. The unanimous Court held:In the absence of any evidence tending to show that possession or use of “a shotgun having a barrel of less than eighteen inches in length” 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Although Miller is very limited in scope it does offer some constitutional guidance. First, the Miller Court clearly rejected the government’s argument that the Second Amendment only protects States’ rights. Hypothetically, if the Court would have accepted the States’ rights position, then logic follows it would have simply denied the Defendant’s Second Amendment claims for like of standing (i.e., because the Defendants were obviously not States they could not bring a Second Amendment defense). However, this was not the case. The Supreme Court viewed the Defendants’ Second Amendment claims as substantively legitimate – but procedurally flawed – and only remanded the case on the basis of a judicial notice error. Second, the Miller Court did not raise any inquiries as to whether or not the Defendants were involved in any sort of militia. Instead, the Court seems to have presumed that the Second Amendment claim belongs to the individual Defendants regardless of their military status or their relation to the State. Third, the Miller Court’s emphasis on the exact type of weapon involved exemplifies the fact that the Court believed congressional limitations could be placed on “arms” that were neither of “common use” nor “part of the ordinary military equipment.”

Eleven years after the Miller holding was articulated, the Supreme Court decided Johnson v. Eisentrager. The Eisentrager Court held that nonresident World War II enemy aliens, who were captured in China and imprisoned in Germany, were not entitled to Constitutional protections. In formulating the majority opinion, Justice Robert Jackson stated that if German prisoners were permitted to invoke the Fifth Amendment’s individual protections, they could just as easily invoke all other individual rights guaranteed by the Bill of Rights, including the Second Amendment:

If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it, the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and “werewolves” could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against “unreasonable” searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.

Clearly, the Eisentrager Court was dictating that the Second Amendment is an individual right – comparable to the individual rights contained within the First, Fourth, Fifth and Sixth Amendments. This precedent most obviously mirrors the text of the Second Amendment, which explicitly provides that the right “to keep and bear Arms” is a “right of the people” and not, in contrast, a “right of the states.”

In deciding D.C. v. Heller, today’s Court must refrain from judicial activism and determine the merits of the case based upon the text of the Constitution as well as applicable precedent. The Court should recognize that the Second Amendment is structurally embedded in the Bill of Rights in order to safeguard individuals from overbearing government regulations. The Second Amendment is in fact a “right of the people” and it undoubtedly shields a military and familial tradition deeply rooted in our society. In deciding Heller, the Supreme Court should follow Judge Silberman’s conservative principals and reiterate Parker’s accurate and poignant sentiments:[T]he Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government . . . .

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