Q: Is the Supreme Court going to define "well regulated militia"?
A: Perhaps so. It is considering a gun-control case in which it might choose to rule on what the Second Amendment means.
This question refers to the language of the Second Amendment to the U.S. Constitution and whether it gives a right to own guns to all citizens, or only to those who are reasonably connected with "a well regulated militia."
The Second Amendment is part of the Bill of Rights, and it says:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The last time the Supreme Court ruled more or less squarely on the question was in 1939, when it upheld the government’s authority to prosecute two men for carrying a sawed-off shotgun across the Oklahoma-Arkansas state line in violation of the National Firearms Act, which had been enacted just five years earlier.
A lower court had ruled that the new federal gun law (the same one that still bans private possession of machine guns without a special permit) violated the Second Amendment. The Supreme Court disagreed by an 8-0 vote. Justice James C. McReynolds wrote the opinion, saying:
U.S. Supreme Court (1939): In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
That ruling upheld the National Firearms Act but it didn’t settle the question of just what rights the Second Amendment grants. As Justice Antonin Scalia wrote in a 5-4 majority opinion in a case just 10 years ago:
U.S. Supreme Court (1997): In Miller, we determined that the Second Amendment did not guarantee a citizen’s right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.
Now the question is before the court once again. Six residents of the District of Columbia challenged a long-standing city ban on owning pistols, claiming it violated the Second Amendment. A federal district judge ruled against them, saying the amendment doesn’t give individuals a right to carry guns except, perhaps, when serving in an organized militia such as today’s National Guard. But in March 2007 the federal appeals court overturned that ruling, striking down the D.C. gun law. Judge Lawrence Silberman wrote for the 2-1 majority:
U.S. Court of Appeals for the D.C. Circuit (2007): The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias.
The D.C. government appealed that ruling to the Supreme Court, which agreed on Nov. 20 to hear the case and, possibly, settle the question. The court said it was taking the case to consider only the question of whether D.C.’s gun laws "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."
Links to arguments filed by both sides, and by a number of outside groups, can be found here. The case will be heard sometime in 2008.
- Brooks Jackson