Q: In terms of the big picture questions, can you talk a little bit about the Second Amendment - what it is, and the original intent behind the amendment itself?
A: Certainly. The Second Amendment guarantees to every individual within the United States, the right to keep and bear arms. And the original intent of the Second Amendment is not too hard to discern from the time of the founding of the country. People at the time were very suspicious of standing armies. They were very uncomfortable with the idea that this new federal government might quash all of the rights and freedoms that we had recently won from the king. And so the states demanded that there be a Bill of Rights in the Constitution, and it would protect, positively, various core rights that were deemed to be absolutely critical: freedom of speech, freedom of religion, the right to be free from unreasonable searches and seizures. And, of course, also the right to actually keep and bear arms, in the event that some tyrant would arise or if the government would become oppressive. The people would at least retain some amount of autonomy and would at least have some safeguard against abusive governmental power.
Q: Can you tell me about this … if you read the Second Amendment in the context of the other rights that are enumerated in the Bill of Rights, are there context clues that would lead one to believe that this is indeed an individual right as opposed to a collective right?
A: Okay. Well, the Bill of Rights uses the word ‘people’ where it means ‘people’ and it uses the word ‘states’ where it means ‘states’. The First Amendment speaks of ‘the right of the people’. The Fourth Amendment speaks of ‘rights of people’. ‘People’ are mentioned in the Ninth and Tenth Amendments. And so it’s sort of silly to suppose that ‘people’ means individuals everywhere else in the Bill of Rights, but somehow when it comes to the Second Amendment, ‘people’ means ‘the states’. The Framers understood the word ‘states’. They understood the word ‘people’. And they used each when they meant specifically ‘people’ or ‘states’.
Q: Tell me a little bit about your critique of the alternative theory - the collective rights theory. Can you tell me what you think of it?
A: I think it doesn’t make much sense, frankly. There are numerous problems with the collective rights theory. The collective rights theory looks at the preamble to the Second Amendment, which is, “A well regulated militia, being necessary to the security of the free state,” then it goes on to the operative clause, “the right of the people to keep and bear arms shall not be infringed.” There are numerous problems with it. First, as a matter of simple grammatical construction, the preamble merely provides an explanation for why you have the right of the people to keep and bear arms. It does not limit, or it certainly cannot negate, the rest of the sentence, that would make no sense.
Moreover, the Constitution specifically forbids the states from keeping troops, except with the permission of Congress. And so it would make no sense for the Constitution at one point to say the states can’t have troops, and then just a few lines down, right away have an amendment to say that the states have a right to basically keep troops. The other problem with the so-called collective rights theory is that it relies entirely on a misunderstanding of the word ‘militia’. In the eighteenth century, the word ‘militia’ had a very specific meaning. Militia was a synonym for, basically, individual people who were capable of bearing arms and rising to the defense of their community in a time of need. And so if you read ‘militia’ in its classical sense, it basically means, you know - because it’s important to have people who are capable of bearing arms, then “the right of the people to keep and bear arms shall not be infringed” is all it means.
And finally, as a mater of logic, we’ve never had a situation in this country, certainly, of people being sent to battle without appropriate arms. If the collective rights theory is actually true, and it means that people have a right to keep and bear arms while they are in military service, that would suppose that if a soldier is not given the kind of weapon that he wants, that he can sue his commanding officer. Or that people have a right to some sort of military activity outside the confines of the state, which makes absolutely no sense.
If the Constitution wanted to guarantee the right of states to keep troops more to have an army of some kind, then it would have said so explicitly. Certainly the prohibition wouldn’t be there, and you wouldn’t structure it in a sense of guaranteeing the right of individuals to have arms. The Constitution would simply say states can have armies, but it doesn’t.
Q: Tell me a little bit about the history of major court cases - and I know there are not many of them - let’s say from the founding of the country up to Miller, the case that everyone cites in the current debate. Can you give me some highlights of how the Supreme Court has ruled on this issue over time?
A: Yes, well, Miller was really the first time that the Supreme Court was called on to directly examine the meaning of the Second Amendment. The cases leading up to Miller - there were a variety of cases that would arise in various state courts about the right to keep and bear arms in certain context, and many of them found indeed, there was an individual right. There were a small handful that did not agree for their own reasons. The Supreme Court - the only case really prior to Miller - there was a reconstructionary case called Presser versus Illinois, where the Supreme Court heard a challenge to an Illinois act that forbade a person from parading with guns. And Mr. Presser claimed that he had the right, under the Second Amendment, to walk around with his guns. And the Supreme Court resolved that case on grounds of standing. At the time, right after the Civil War, the Supreme Court did not recognize that individual rights and the Bill of Rights were what we call ‘incorporated’ against the states. And it took a long process of many cases in many different fields for the Supreme Court to find, here and there, that yes, the states are required to obey the First Amendment; yes, the states are required to obey the Fourth Amendment. But at the time, the incorporation doctrine was not very well developed. And the court simply held that whatever the Second Amendment means, it does not bind the state in whatever it wanted to with respect to guns.
Q: The incorporation issue definitely plays into the Parker case, insofar as it’s not applicable to the Parker case, but I think we have to talk about it.
A: Correct.
Q: Can you talk about incorporation specifically as it relates to the Second Amendment? And if there are any cases that have said either ‘yes’ or ‘no’ - that the Second Amendment is incorporated against the states?
A: At this point, there has not yet been a case that has specifically addressed whether or not the Second Amendment is incorporated against the states, not since Presser. When the country was first founded, we have to remember that the big fear was that the federal government would infringe on people’s individual rights. There was no fear that the states would do so, because it was thought that people were very close to their states, and that there would be a political solution if the state were to suddenly act in a way that was tyrannical or oppressive. After the Civil War of course, we learned differently, because we saw that states were indeed depriving many of their citizens of fundamental constitutional rights. And…
(Pause for technical adjustment)
A: Okay. It’s important to remember that when the country was first founded there was a fear that the federal government, not that the state government, would oppress people. And the Bill of Rights was designed to limit federal action. Nobody imagined that people would have cause to complain about what their states would do to them, because it was felt that people were very close to their states, and if a state started behaving in a way that was oppressive to the people, the people could simply vote out their state government. But that the federal government, being somewhat more distant and large and based off in Washington - we would need a Bill of Rights to protect us from federal action. And so for much of our history, the Bill of Rights simply did not apply to action by state governments. Now after the Civil War, we had a lot of new citizens following the end of slavery. And of course there was quite a fair amount of oppression by Southern state governments. And the Fourteenth Amendment was enacted with the specific idea in mind that we would now prevent the states from violating the privileges and immunities of the people.
(Pause for technical adjustment)
A: Incorporation simply is not an issue in our case, because we’re challenging the law of the District of Columbia, which is a federal entity. So it’s simply not important in our case to consider whether or not the Second Amendment applies to the states, because we’re not suing any state. We’re suing the federal government, or at least a creature of the federal government.
Q: Let’s talk a bit about what you and I were speaking of before we rolled camera with regard to the academic literature that supports the individual rights of the Second Amendment. And yet you have a lot district courts that have taken the opposite view. Can you talk a little bit about that, that dichotomy, and why that exists?
A: Certainly. For much of our history we simply did not have very many gun laws and there was not much cause to litigate Second Amendment issues. And it really was not an issue that was litigated very frequently. In the late 1960’s we had the first federal Gun Control Act. And a lot of cases started coming up to the courts where people who were convicted of violating the Gun Control Act would assert the Second Amendment right. Most of these cases were not very sympathetic. These were violations of laws that are, by and large, not very controversial, things like a felon being in possession of a gun. And the courts simply didn’t address the subject very seriously. If you read those collective rights cases from the late sixties and early seventies and so on, they’re very perfunctory, they simply state it’s not a right and then they move on. There was really no deep examination of what the Second Amendment means for a very long time, not until Emerson came out in 2001.
Q: Can we talk a little bit more about Miller, in that you see both sides in this debate citing Miller for evidence that they are correct? Can you talk about - first of all - the facts in Miller, and how the court decided Miller?
A: Yes. Well, Mr. Miller was convicted, or at least he was charged, with possessing an untaxed sawed-off shotgun in the 1930s. And his attorney asserted a Second Amendment right to keep this sawed-off shotgun. And in fact, that was successful, I believe, in the lower court. It went to the Supreme Court and the Supreme Court basically held that Mr. Miller did not have a right to that particular weapon. What the Supreme Court did in Miller was they examined the history of the Second Amendment and they agreed, pretty much if you read the opinion, that the militia of which the Second Amendment speaks means ordinary people who are expected from time to time to show up bearing arms to defend their community. The Supreme Court did not hold that Mr. Miller was not a member of the militia, or that he wasn’t enrolled in any sort of military action. Quite simply, the Supreme Court said “let’s look at the sawed-off shotgun, and we refuse to believe this is the type of weapon that’s protected by the Second Amendment.” The Supreme Court, in Miller, focused on the type of weapon that the Second Amendment protects, not on the type of person that the Second Amendment protects. And because a sawed-off shotgun was not the kind of ordinary, commonly-used gun that a person might use to defend themselves and their community, then the Court had no problem deciding that Mr. Miller did not have a Second Amendment claim.
Q: Let’s move into specifics about the case you’re involved in - the Parker case. Can you talk a little about the background of this [inaudible 15:36] issue; how the case got started?
A: Certainly. Well, several years ago in the Fifth Circuit, the Emerson case came down, which was the first time that a federal appellate court had come out and actually examined the Second Amendment and found that there was an individual right there at stake. Emerson, of course, came on the heels of a lot of scholarship that also started seeing the light about the Second Amendment, and recognizing that actually, it’s an individual right. And there was a fear that eventually this case would wind up in the U.S. Supreme Court. There is now a circuit split between the Fifth Circuit, which holds it’s an individual right, and other circuits, which don’t subscribe to that viewpoint.
And we did not want the case that defines this right for everybody to come up accidentally, to be litigated by people who are unsympathetic, to be litigated on weak facts, perhaps done half-heartedly. And at the same time, of course, we had this gun ban in Washington D.C., which is fairly draconian and absolute: people here may not have any sort of functional firearm inside their house, period. And so it was time to have a test case that would focus very narrowly on the right to keep and bear arms. We would have it here in Washington, where we don’t have to worry about the incorporation doctrine, and we don’t have to worry about whether the Second Amendment applies to the states. And we could do it on behalf of law-abiding people who are not a threat to anybody, who simply wish to exercise the absolute core minimum of their Second Amendment rights. And if the Second Amendment means absolutely anything, it should mean that a law-abiding adult person can have a functional firearm inside their house. And it’s not too hard in this community to find people who are aggrieved by this law. And…
Q: Tell me a little bit about the ban that’s here in D.C., because I think most people who don’t live in the area would be surprised to know more about it, since it’s pretty extensive.
A: The D.C. gun bans are fairly draconian and fairly extensive. There are three laws that we are challenging in particular that we find to be offensive to the Second Amendment right. First, you cannot have any handgun, period, that was not registered prior to 1976. So it doesn’t matter what kind of handgun you have or want to have, it’s banned completely. Second, you many have a long arm, that is a rifle or a shotgun, however, you not only have to have it registered, you have to have it disassembled or bound by a trigger lock. The act of rendering it functional makes you a criminal. Even if you use your gun to defend yourself at home against an intruder, the government will prosecute you for having an illegal operating firearm. Even if they think that the shooting itself was valid and you’re not going to be prosecuted for murder or assault or any of those things, they still will come after you for the gun. And the third aspect of the law that we’re fighting is that the government requires you to have a permit to move your gun, even inside your house - your nonfunctional disassembled gun - from room to room. It used to be that the government only restricted the rights of people to carry their weapon in public, concealed or openly. However, that law was amended, and now you can’t even move it around inside your own property. So those three laws are what we’re challenging here.
Q: Can you talk about what ‘standing’ is?
A: Sure.
Q: And then why your clients have standing in this issue.
A: Sure. Well ‘standing’ is a doctrine that basically states that the courts don’t exist to resolve theoretical, hypothetical disputes. The courts don’t give opinions to people who are simply interested in finding out what the law says. The courts only resolve actual controversies between parties where there’s something significant at stake. In the civil rights area, of course, this presents a problem because often times the government will pass some law that someone thinks restricts their right. And the citizen is then left to the choice of either risking jail time or forgoing activity that may indeed be constitutional. So both the Congress and the courts have developed a doctrine that allows people to challenge the constitutionality of a criminal act without having to risk jail time. The requirements are that you have a sincere belief to do something, that there is some sort of plausible reason why your activities are constitutionally protected. And, that you have a reasonable fear that you would in fact be prosecuted if you were to violate the law.
All of those factors are present in our case. There is a law here that, at least arguably, I think no one would dispute touches upon the Second Amendment. Our clients are very sincere, they do want to have operating firearms inside their house. And there’s absolutely no question whatsoever that if they were to violate the law they’d wind up in jail, because this law is very aggressively enforced. And we’ve also had specific threats of prosecution against these individuals.
Q: Tell me a little bit about the history of litigation so far. What are the stages it’s been through, and where are you now?
A: Well, we filed the lawsuit originally in U.S. District Court back in February of 2003. The government moved to dismiss the case, predictably, saying that we have no constitutional right at stake. We filed what’s called a ‘motion for summary judgment’, basically asking the court to give us a judgment since there’s no dispute on the facts and it’s simply a question of law. About a month or so after we filed our case, of course, the NRA sponsored this other litigation called Seegers, and there’s a little bit of a background story there. Basically, the NRA, for their own purposes, was not thrilled with our litigation and had actually asked us to forgo it or modify it in various ways that we found to be unacceptable. When we refused to do so they filed this copycat lawsuit and they tried to have the cases consolidated, basically joined together, as a way to sort of insert themselves into our litigation. We fought that successfully and that attempt was refused by the Court. And so then we had these two cases proceeding on separate tracks. As a word the Seegers case was decided before our case was and went on appeal before our case managed to get on appeal. And so we had to sit and wait for their case to wind its way through the courts. Eventually, they lost based on standing. The Court found that they did not have sufficient standing. Then, of course, matters shifted back to our case, the Parker case, for resolution. And we are, as of this time right now, in the Court of Appeals.
Q: Can you tell me about how the lower court decided? And what it is in the Court’s opinion that you’re appealing?
A: Certainly. The lower court basically agreed with the city that the Second Amendment does not protect any individual rights. And the reasoning of the lower court, if you read their opinion, is largely that well, the Supreme Court has never reached out to reject the collective rights theories espoused by federal appellate courts, and that this supposedly is some kind of comment on the merits of our case. Of course, the District Court also did not talk about the fact that the Supreme Court didn’t reach out to overturn Emerson either, which agrees with us. The Court did commend us for raising interesting points, but in the end, it simply did not see the individual right at stake. And so we’re appealing that.
Q: Can you talk about the results that you’re hoping to achieve … I guess two-fold: results both for the plaintiffs in this case specifically, and then perhaps a larger legal issue that you’re trying to resolve?
A: Yes. Specifically, in this case, we’re seeking a very narrow result. We simply want law-abiding adult citizens in the District of Columbia to be able to have some kind of functional firearm inside their house, including a handgun. We are not in this litigation seeking to overturn all of the various other gun control measures that the city has. And believe me, there are many of them. But we are not focused on that yet.
In the larger sense, the aim of this litigation is to, once and for all, establish that the Second Amendment right of the people to keep and bear arms, is a right of individual people, that it has meaning, and that the government cannot simply abolish weapons wholesale. Of course, there is some area for the regulation of guns. And our clients have no problem with the idea that children shouldn’t have guns, many criminals should not have guns, people who are mentally incompetent should not have guns. But in the end, while you can regulate guns for public safety, you cannot simply abolish them completely. Because at some point there is an individual right at stake, and we would like to, once and for all, establish that.
And another goal of the litigation of course, goes beyond the Second Amendment, because there are other constitutional rights, of course, that the people hold dear. And if we can take one right and read it out of the Constitution based on a very creative semantical theory, then there’s no reason why, in the future, people who are hostile to other portions of the Bill of Rights, would not invent some other kinds of reasons as to why ‘people’ in the First Amendment doesn’t really mean individuals, ‘people’ in the Fourth Amendment doesn’t really mean individuals, and so on. There are many, many people out there who are hostile to individual rights, either all of them or specifically some of them. And we simply cannot go down the path of reading out rights out of the Constitution because somebody disagrees with it.
Q: When you talk to people who are supporters of the collective rights theory, one of the attacks they make on the individual rights theory is “Well, if you can take it to its logical extreme, do you have an individual right to own nuclear weapons?” Can you talk about what the outer limits of the individual rights theory might be?
A: Sure, absolutely. You know, we always hear these things about nuclear weapons and bazookas, and I guess at some point we could also hear this in the First Amendment context. Certainly nobody claims that the First Amendment protects perjury, fraud, extortions, terrorist threats. And the Second Amendment protects the kind of arms that an individual might be expected to have in a normal course of defending herself or himself, something that is personally useful. A nuclear weapon or a bazooka is not such a weapon. The Supreme Court, in the United States versus Miller, focused exclusively on what kind of weapons may or may not be covered by the Second Amendment. And we’re quite confident that the courts have always inquired not only as to who may have weapons, but what kind of weapons can you have. Those are two very separate questions, and certainly we wouldn’t expect aircraft carriers and cruise missiles to be covered by the Second Amendment any more than the First Amendment protects, you know, perjury and fraud and extortion and those things. They are speech, but realistically they are not at issue. |
