McFreedom

I was speaking to my wife, today, about what the recent 9th circuit decision that there isn't an individual right to gun ownership means. As I speculated, before, I'm optimistic that this case will be appealed to the Supreme Court, and that they, given the clear conflict between the 9th and 5th circuits on this matter, will finally settle the question of whether Americans have an individual right to own guns. But that started me thinking about what happens after that...

If they decide Americans do not have an individual right to gun ownership (which I consider unlikely), I think the long-term results are far from clear. The implication from such a ruling would be that there is no constitutional prohibition to laws banning weaponry, but it doesn't necessarily follow that guns should instantly be banned. Interestingly, I don't see how the current Federal restrictions on gun manufacture and importation can stand up to any Supreme Court review. Either the constitution establishes an individual right to own guns (and one would presume that banning manufacture and importation would be interpreted as a back-door way of accomplishing an ownership ban), or the constitution does not guarantee an individual right, but rather establishes a state right to regulate weapons. As Glenn Reynolds has pointed out, any freedom-minded state could then declare every adult member of its populace members of the militia and be able to set as unrestrictive gun laws as it wants. In any event, I believe the 1986 Federal bans on machine guns and the more recent bans on "assault rifles" and large-capacity magazines will eventually be struck down as unconstitutional, because either we have the right to own them, or the states have the right to decide if we can own them, but I can't see any reasonable interpretation that says that the Federal government gets to say we can't own them.

With the Feds out of the picture, I'd imagine that lobbying moves to the statehouses, with the possible exception of some attempt to get a Federal constitutional amendment that would establish an individual right to bear arms. The outcome of that fight my crystal ball is far too cloudy to see. Ironically, I don't see guns getting much more regulated in California as a result - they've already been acting as though the Second Amendment didn't grant an individual right, and I believe they've regulated as much as they can, politically, at this time.

If the Supreme Court decides that the Second Amendment does, in fact, confer an individual right to gun ownership, it raises some very interesting questions:

1. Does this decision restrict the states, too? Specifically, will the Court also decide that the Fourteenth Amendment causes the Second Amendment to restrict what states can do? The 9th, in their recent decision essentially dodged this question (in footnote 17, on pages 23-24). They point out that previously they hand found that "[T]he Second Amendment is not incorporated by the Fourteenth and does not constrain actions by the state," but now admit that the caselaw that was the basis for for deciding that is now "thoroughly discredited." In the end, they sidestep it with, "Because we decide this case on the threshold issue of standing, however, we need not consider the question whether the Second Amendment presently enjoins any action on the part of the states." In the 9th's interpretation, asking whether the Second is incorporated by the Fourteenth is meaningless, anyway; if the point of the Second is to grant a right to the state, how could the Fourteenth then bind the state to the terms of the Second Amendment? The question of whether the Second restricts states is only meaningful if the Second is an individual right. If the case the Supreme Court hears is the recent one 9th Circuit opinion, they could decide this question, as well. I'd bet that they won't, though - they usually only address the specific question in front of them, and in this case, it's going to be, "do these appellants have standing under the Second Amendment?" If they decide, "yes," they'll send it back down to the 9th, who will then opine, "Yeah, well, maybe they do, but the Fourteenth doesn't cause the Second to apply to the states, anyhow," it'll go to the Supreme Court again, which is when this question will really be answered. Of course, for non-Californians, the answer to the Federal question ("Does the Second Amendment provide a Federal individual right to own arms?") would be interesting, but here in California, the state gun laws are considerably more restrictive than the Federal, so the really interesting question is going to be whether the Second applies to California, as well. I'd be surprised if we have that question answered before about 2007, barring the Supreme Court weighing in unasked in this case or the 9th actually coming up with a rational opinion on the remand. I'd love to hear what a real court watcher had to say about that, though.

2. What arms may "the people" bear, exactly? The rationale in Miller implies that it should be "part of the ordinary military equipment or that [their] use could contribute to the common defense" (although it's couched in terms of a negative, so it's possible that weapons could meet this test and yet still not be considered to be protected by the Second Amendment). Assuming that this is the class of weapons we're dealing with, what lines may be drawn? The military currently uses 9mm pistols with large magazines; .50 caliber sniper rifles; .223 caliber fully automatic "assault rifles;" .308 caliber machine guns, grenades, rocket-propelled grenades, stinger anti-aircraft missiles, tanks, aircraft carriers... Private ownership of most of these weapons is currently illegal to in some or all of the United States. Is there a line that may be drawn, or may any individual put together firepower far overwhelming that of the local constabulary? If there is a line, what's the rationale? I could certainly see an argument for restricting weapons too large to "bear," but, let's face it, a suitcase nuke could conceivably be hauled about by a single individual, and I don't think anyone would advocate making those legal for the average person, background check or no. Even if you limit it to what I think makes the most sense, "weapons commonly issued to US soldiers," you've still got machine guns, grenades and potentially RPGs and things like an M203 coming into private ownership, which I think most people would be opposed to, and is certainly a dramatic and sudden change from the status quo. If it is "weapons commonly issued to US soldiers," is there any sort of equivalency? Is a literal M16 legal to manufacture, import and own, but a semi-automatic SKS may be outlawed because US soldiers don't use that literal weapon? What about changes in technology; if the Army drops the M16 in favor of the next generation OICW, does that mean that Congress can then outlaw the M16? That could put us in a world where the US could effectively disarm its populace simply by making its standard-issue infantry weaponry too expensive for most individuals to own and then outlawing everything else. I'm guessing, but in a totally unregulated world, I'd be surprised if an M16 cost as much as $2,000. The current projected price tag for an OICW is between $10,000 and $12,000 - not an amount your average "militia member" is probably going to be willing to spend.

3. What about related restrictions? Is the Brady Law constitutional in the world of an individual-rights Second Amendment? I suspect it is (many constitutional rights are abridged for certain classes of citizens), but I also suspect we'll need a court case to find out for sure. I believe there are already rulings that restrictive concealed-carry laws are not a violation of gun-ownership rights, but what about significant restrictions in transporting weapons unconcealed (as we have in California)? They would seem to significantly curtail my ability to "bear" arms; if the Second also constrains the states via the Fourteenth, might they also be unconstitutional? May any government enact "backdoor" restrictions that, while not eliminating gun ownership, make the acquisition, transportation, manufacture and transfer of guns effectively impossible? What about ammunition sales restrictions or prohibitive taxes? For that matter, are local governmental crusades against shooting ranges unconstitutional, since clearly the intent is to have a populace trained in the art of arms, and you may not train in the art of arms without actually practicing occasionally?

Even should the Supreme Court decide we have an individual right to own arms, I think that's only the beginning of finding out what gun ownership will be like in this country in the 21st century. It's going to be a decade or more before we really have all these questions answered.