Saturday, March 10, 2007

Gun Rights in D.C.

A story in yesterday's NY Times notes that homicides, after falling nationwide to forty-year lows, have been increasing in the last couple of years, and cites as a prime cause the greater willingness of young men to use guns to resolve disputes that formerly would have been resolved with fists. Thus it was at best awkward for the D.C. Circuit to hand down its decision in Parker v. District of Columbia on the same day the story ran. In Parker, the DC Circuit holds that the Second Amendment protects an individual right, and that the District's restrictive gun control law violates that right. One other circuit, the Fifth, has likewise held that the Second Amendment protects an individual right, but in that case, United States v. Emerson, the court's Second Amendment discussion was dicta because it upheld the conviction on the ground that Emerson's particular act of gun possession fell within the zone of regulation even the individual right view of the Second Amendment permits. Because the Second Amendment discussion in Parker is a square holding, there is now a real circuit split with the many circuits that have rejected the individual right view, and so the Supreme Court is likely to take the case.

In reading Parker yesterday, I was struck by the one-sidedness of the analysis. In my one sustained academic foray into the politically fraught area of the Second Amendment, an article I wrote for a symposium in 2000, I acknowledged what I think any fair-minded reader of the relevant materials must: that the text and original understanding of the Second Amendment are unclear, and that the Supreme Court cases which appear to reject the idea that it protects an individual right are quite conclusory in their reasoning. Nonetheless, because my bottom line in that article was skepticism towards the individual right view, it typically gets cited as supporting the "collective right" view.

I can live with that, I suppose. (There's no such thing as bad publicity, right?) But it is a bit vexing to have my views cited simply for the purpose of being dismissed, which is what Judge Silberman's opinion in Parker does. See for yourself. Here's the key excerpt from yesterday's decision in Parker:

The District points to the singular nature of the Second Amendment’s preamble as an indication that the operative clause must be restricted or conditioned in some way by the prefatory language. Compare Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998), with Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI.-KENT L. REV. 291 (2000). However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it. Volokh, supra, at 801-07.

Translation: The District of Columbia and Professor Dorf think that the operative portion of the Second Amendment must be read in light of its preamble, but had they bothered to read Volokh's article -- which appeared two years before Dorf's article -- they might have noticed that such preambles were common in state constitutions without suggesting that they limited the operative portions of the rights protected in those constitutions. So the Second Amendment Preamble can be safely ignored as hortatory. (And isn't that Dorf character a doofus?!)

Well, your honors, I'm scratching my head as to how you could have made this point if you really read my article. If you did, you would have noticed that I not only read Volokh's (excellent) article; I also had a response. Here's what I said:

Volokh points out that provisions of state constitutions of the founding era commonly contained preambles of the sort we see in the federal Constitution’s Second Amendment. Those provisions involved not only the right to bear arms, but a diverse collection of other rights, including freedom of speech and the press, the right to trial by a local jury, and many more. Volokh draws two inferences from the existence of these provisions: first, the framers’ decision to include a preamble in the Second Amendment was mere stylistic happenstance, to which virtually no significance can be attributed. Second, reading the contemporaneous state constitutional provisions alongside the Second Amendment drives home the lesson that even when a constitutional provision’s operative clause is over or under inclusivewith respect to its justification clause, it is still the operative clause, and not the justification clause, that controls. Although we might not think “that entirely unfettered freedom of speech in the legislature” is, in the words of the justification clauses of the Speech and Debate Articles of the Massachusetts, New Hampshire, and Vermont constitutions, “essential to the rights of the people,” we would nonetheless be obliged to give full effect to the operative language of those provisions. Volokh argues for similar treatment for the Second Amendment: even if we no longer believe that “A well regulated Militia” is “necessary to the security of a free State,” we nonetheless must respect “the right of the people to keep and bear Arms.”

Although I agree with the overall thrust of Volokh’s argument, it does not, in my view, carry us very far in the direction of the individual right interpretation of the Second Amendment. I should begin by noting my substantial disagreement with Volokh’s first inference. As a matter of textual interpretation of the Second Amendment, it is largely irrelevant that clause preambles are commonplace in other documents. In the United States Constitution, the inclusion of a preamble marks the Second Amendment as extraordinary. The frequent use of clause preambles in contemporaneous documents does, I concede, shed some light on the subjective intent of those who drafted the Second Amendment as well as, perhaps, the most common understanding of the political community at the time. However—and here Volokh’s second argument undermines his first—it is the text itself, not the subjective intent of the drafters nor even the background understanding of the time, that was enacted. In the case of the Second Amendment as it appears in the federal Constitution, that text is striking for containing its own preamble.

More broadly, as the title of my article states, the key question is not what the Second Amendment may have been understood to mean in 1791, but what it means today? And on that question, the Supreme Court has said pretty clearly that its "right" language needs to be read in light of its preamble, a point made at length in dissent by Judge Henderson. As I acknowledge above, the Supreme Court opinions on point are under-argued, but the standard rule is that lower courts must follow Supreme Court precedent unless the Supreme Court itself overrules that precedent. Having violated the spirit if not the letter of that rule, the DC Circuit has now teed the issue up for the Justices to take a fresh look at the question.

Okay, that's a longer-than-usual post, and since I get a large volume of "fan" mail whenever I say anything about the Second Amendment, I'll have enough to do tomorrow without posting again. I'll post again Monday (and perhaps one of my co-bloggers will post before then). Meanwhile, I'll be working on my FindLaw column for Wednesday on the Justice Department Inspector General's Report on the use of national security letters.