The Second Amendment: Down A New Barrel
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Activists on both sides of the steaming debate over guns ought to be able to agree, at the very least, on two things. The first is that the language of the Second Amendment is, grammatically speaking, incomprehensible. The second is that the time has come for clarity from the Supreme Court about whether the "right to bear arms" is an individual or collective one.
Now that they have agreed to hear a challenge to the District of Columbia's gun ban, the justices will indeed be forced over the next seven months or so to try to reconcile the three, jarring, comma-spliced clauses of the amendment. To do that, they will need to understand how the clauses - 1) A well regulated militia; 2) being necessary to the security of a free State; 3) the right of the people to keep and bear Arms, shall not be infringed - made it onto the final draft of the Bill of Rights.
If the justices do honest work in this area, they will inevitably come to two candid conclusions. The first is that our hallowed forefathers were no more willing or capable of making tough decisions about contentious issues (like gun rights) than are their modern-day counterparts. The amendment is an ambiguous, mealy-mouthed compromise that conveniently leaves for another day (like 2008) a legal resolution of the debate between gun rights enthusiasts and gun control advocates - a fight that is older than the country itself. Ohio State University history professor Saul Cornell established as much in his fine recent book on the matter.
The second conclusion the justices will be able to glean from their homework is that the easy way out of this eternal thicket of law and politics also may make the most sense. Instead of trying to reconcile the irreconcilable, instead of continuing to look at what Cornell calls the "individual/collective rights dichotomy model," the justices instead should chart a course that does to the Second Amendment what we long ago did to the First Amendment; identify a strong individual right but allow for that right to be trumped from time to time by certain kinds of regulations.
In other words, for the same reason the court continues to outlaw threatening speech - "I have a bomb!" - it would continue to outlaw certain kinds of gun ownership or possession even as it finally explicitly recognizes someone's right to own and possess a gun. One of Justice Anthony Kennedy's law clerks, Orrin Kerr, recently predicted this precise scenario. After declaring that there is an individual right under the Second Amendment, "Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation," wrote Kerr.
It matters what Kerr thinks about Kennedy because it matters what Kennedy thinks about the court. Almost certainly he will be the "5" if the gun case is decided, as most think it will be, through a 5-4 ruling. The litigants surely know this and so will cater their briefs to push the Swing Justice in one direction or the other. But will Kennedy, in the end, be willing to forge the compromise that ends that individual/collective "dichotomy" that Professor Cornell complains about?
There is at least one recent reason (aside from Kerr) why you could reasonably think that Kennedy will take the bait. Last term, in the big affirmative action case, Kennedy helped strike down the enrollment policies of two school boards (in Kentucky and Washington), but made sure to note that other policies at other schools might well be valid. Thus was affirmative action both murdered and resuscitated by the same man. Kennedy could do the same thing here.
So we would then get a Second Amendment that both recognizes our right to own and possess guns and recognizes the government's ability to restrain that right in certain, yet-to-be-determined ways. When Kerr talks about a "deferential standard of review," he means that Kennedy's Rule would require judges to give legal "deference" to legislators by applying a lower legal standard when reviewing their legislation. And that in turn might help ensure that America's gun laws won't look that much different in 2009 than they look today.
In other words, the justices may make history next June when they announce a clear Second Amendment standard. And that history would take us precisely to where we already are and where, given our sharply divided perceptions about guns, we probably deserve to be.