Advocates Argue History of the 2nd Amendment

Monday's event on the Heller v. District of Columbia gun rights case, sponsored by the American Constitution Society and the Federalist Society, felt more like a lesson in history than a legal battle. Attorneys Tom Goldstein, arguing for the District, and Alan Gura, speaking for the gun owners, took those in attendance into the depths of Constitutional history. Instead of sifting through precedent, most of the lunch hour conversation was spent attempting to come to grips with the framers' understanding of their own society and what those few lines in the Second Amendment were meant to say.

The reason that the event was so filled with history is the same reason that so many students showed up to hear the two advocates discuss the case; there has been essentially one Second Amendment case to ever go before the Supreme Court, the 1939 case of U.S. v. Miller, which left no one with a sense of where the Second Amendment stood.

What makes the Heller case (formerly Parker v. District of Columbia) so intriguing is that it is a "pure" Second Amendment case. The law in question covers the District of Columbia, meaning that no incorporation issues arise regarding the Fourteenth Amendment. Moreover, the law in question essentially bans handguns, and very severely limits ownership and usage of so called "long guns" such as shotguns, even in a person's own home. This means that instead of working at the margins of regulatory review, the case is at a point where both sides admit that the law would violate the Second Amendment if in fact the Amendment protected an individual right to bear arms.

The case cuts through to the core question of whether or not the Second Amendment protects an individual right to bear arms or whether the amendment dealt only with "militia" usage of weapons. It is also what led the panelists to approach the issue not just with the limited precedents available, but with a full-fledged journey into textual analysis and writings by the founders, and other historical approaches.

Arguing the position of the District of Columbia, Goldstein, an appellate lawyer at Akin Gump, began by noting that his position is also the position of mainstream legal thought. He then set about to connect the notion of an individual's right to carry arms with a militia purpose. Reading the preamble of the Second Amendment Mr. Goldstein focused on the fact that the militia portion gives a context to the right involved. He also noted that the terms "to keep and bear" at the time of their writing were terms that spoke of military usage.

He then went into historical analysis of the effect of Shay's Rebellion, the fight over the notion of a standing army at the Constitutional Convention, and the fact that the Federalists and Anti-Federalists had different conceptions of control over the militias. In looking at these aspects of history, he came to the proposition that the Second Amendment was meant primarily to prevent the federal government from allowing the militias to wither away unsupplied. While acknowledging fall-back arguments, Mr. Goldstein's main reasoning centered on the connection through words and intentions of the Second Amendment to the militias, not to individuals.

Unsurprisingly, Gura took a historical path through the time of the founders and managed to arrive at a completely different position on the notion of an individual right to bear arms. In looking at the preamble, Gura noted that preambles in the copyright clause and other places are given little weight, especially with "clear" language following them. He then went through the historical motivations of the founders and noted that one of the central acts the colonists noted in their march toward revolution was the disarming of Boston by General Thomas Gage. He mentioned how founders such as Jefferson, Adams, and Madison wrote of their belief in an individual right to bear arms, and how the notion of a militia is much broader than the view taken by Mr. Goldstein. In looking at these and numerous other historical analogies Mr. Gura concluded that the right to bear arms applied to the people themselves.

The Heller case gets to the heart of the issue of gun rights in America, and to resolve the issue, some sort of analysis of the history of the Second Amendment will have to be done. To see both sides of the case tear through the history and come up with different bases for their sides is to understand why the issue divides scholars, such that it has been said that Robert Bork is on the District's side and Prof. Tribe is on the gun owners side.

Heller v. D.C. is one of the most anticipated cases of the Supreme Court term. It will be argued March 18th.