Mar. 18, 2008, 05:02 AM
Today the Supreme Court is scheduled to hear oral argument in the case of District of Columbia v. Heller (07-290). The court has granted an additional 15 minutes for argument by the Solicitor General on the amicus brief filed by the Department of Justice on behalf of the Bush administration that, while arguing in favor of the protection of an individual right under the Second Amendment, urges the court to uphold federal gun laws restricting the possession of firearms.
The government brief exposes the real problem with the Second Amendment, which is that the proscription against infringement does not preclude regulation; and, as made clear by the Supreme Court’s decision in United States v. Miller, is not prohibited by the provisions of the Second Amendment. See United States v. Miller, 307 U.S. 174 (1939). Prior to Miller, judicial interpretations held that the Second Amendment was a limitation on the power of Congress over states’ (not individual) rights. See United States v. Cruikshank, 92 U.S. 542, 553 (1875). However, the Miller decision opened the door to federal regulation of firearms as well, holding that objections that federal laws (i.e., National Fire Arms Act and the Harrison Narcotic Act) “usurps police power reserved to the States is plainly untenable.” Miller, p. 174.
My personal view is that the Supreme Court is not about to overturn Miller, which is the controlling precedent; and that what we will see is a decision governing issues that Miller did not address directly. In this regard, whether the Supreme Court will rule that the Second Amendment protects an individual or a collective right is uncertain; but what is certain is that the court will not rule that an individual has an unfettered right to own a gun; which, consistent with the court’s prior decision in Miller, is subject to regulation by law. Indeed, those that want their rights protected under the Second Amendment may soon find themselves the more “well-regulated.”
The government brief exposes the real problem with the Second Amendment, which is that the proscription against infringement does not preclude regulation; and, as made clear by the Supreme Court’s decision in United States v. Miller, is not prohibited by the provisions of the Second Amendment. See United States v. Miller, 307 U.S. 174 (1939). Prior to Miller, judicial interpretations held that the Second Amendment was a limitation on the power of Congress over states’ (not individual) rights. See United States v. Cruikshank, 92 U.S. 542, 553 (1875). However, the Miller decision opened the door to federal regulation of firearms as well, holding that objections that federal laws (i.e., National Fire Arms Act and the Harrison Narcotic Act) “usurps police power reserved to the States is plainly untenable.” Miller, p. 174.
My personal view is that the Supreme Court is not about to overturn Miller, which is the controlling precedent; and that what we will see is a decision governing issues that Miller did not address directly. In this regard, whether the Supreme Court will rule that the Second Amendment protects an individual or a collective right is uncertain; but what is certain is that the court will not rule that an individual has an unfettered right to own a gun; which, consistent with the court’s prior decision in Miller, is subject to regulation by law. Indeed, those that want their rights protected under the Second Amendment may soon find themselves the more “well-regulated.”