Heller's Friends: The Intellectuals Explore Unintended Consequences

I'm a sucker for irony, especially for what I think of as intellectual irony, which is when allegedly smart people discover that fate doesn't necessarily follow the path they've set for it. So naturally, I've enjoyed reading the amicus brief filed in support of Heller by The Center for Individual Freedom.

This is the ninth in a series of reviews of the SCOTUS briefs supporting Heller in the landmark District of Columbia v. Heller.

The brief is in two major sections. The first, and less fun but still very useful section, describes how United States v. Miller has been misinterpreted for 70 years by most lesser courts and almost all media. Most readers will recall that Miller was decided in favor of the government based on the Court's the finding that a sawed-off shotgun is not suitable for military work. These authors make abundantly clear two very significant points.

First, as always emphasis added:

In Miller, criminal defendants Jack Miller and Frank Layton were charged in federal court with “unlawfully, knowingly, willfully, and feloniously” transporting an unregistered shotgun with a barrel fewer than the required 18 inches in length from Oklahoma to Arkansas in violation of Section 11 of the National Firearms Act. Defendants demurred, and the trial court sustained the Demurrer on the basis that the National Firearms Act “offend[ed] the inhibition of the Second Amendment to the Constitution.”

Thus, it must initially be noted that the trial court recognized an individual right to keep and bear arms under the Second Amendment, disproving any assertion that early federal courts uniformly recognized only a collective states’ right.

Following the trial court’s dismissal, the government appealed, ultimately to the Supreme Court. The defendants, however, refused to even appear before the Supreme Court to defend their position or engage in oral argument, as their indictment had been quashed. Because no appearance by counsel was made on behalf of the defendants, their position thus wasn’t argued.

As a result, a unanimous Supreme Court held only that the failure of the defendants to appear for argument rendered the Court unable to determine whether the Second Amendment protected the defendants’ right to keep and bear the firearm in question:

“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.”

Thus, the Court didn’t reject an individual right of the people to keep and bear arms under the Second Amendment, nor did it hold that the Second Amendment creates a collective states’ right. Rather, the Court observed that the absence of evidence entered into the record rendered it unable to thoroughly apply the Second Amendment’s provisions to the allegations in question.

This argument provides the basis for the Heller position that an individual rights interpretation is not inconsistent with the only previous SCOTUS decision this century.

The second section is wildly fun. It is here that the authors explore what none have before: What happens if the District wins its argument?

The summary is in the section title

A Collective Right To Keep And Bear Arms Would Contradict Other Constitutional Provisions, Call The National Guard Into Question, And Collide With Existing Federal Firearms Laws

The first sentence lays out the issue that I addressed two months ago in Where's the Militia? I Want To Enlist!

If this Court accepts Petitioners’ collective right proposition, then the Second Amendment guarantees state governments the right to maintain military instruments as a counterweight to the federal military.

It seems unarguable. The ramifications, though, are breathtaking.

[I]f the Second Amendment creates only a state right, then that contradicts several military power provisions within the Constitution, it likely renders the National Guard as currently administered unconstitutional, and it potentially allows state governments the right to disregard federal firearms laws that presently limit states’ ability to formulate a powerful militia.

This creates a whole new set of very powerful states' rights, almost whole cloth, none of which have any case law upon which courts, states or people can rely. Among the questions are these:

If Petitioners are correct in their contention that the Second Amendment protects the states’ right to keep and bear arms as a bulwark against federal power, then almost any federal measure limiting state militia independence in the manner described above could suddenly be subject to dispute and litigation.

***
If Petitioners are correct in their assertion that the Second Amendment protects only the states’ right to maintain militias, then federal firearms laws are also suddenly open to legal challenge. Assuming the validity of Petitioners’ collective right view, the purpose of the Second Amendment is to preserve state militia independence from federal control and suppression. In turn, this would require that state militias be sufficiently powerful and independent to repel the federal military. Because arming and maintaining a state militia of sufficient size and force would be extremely expensive, states could opt to compel citizens to obtain and preserve firearms and other military instruments. By doing so, states would not only save money, but also ensure that citizen militia members would naturally become more familiar with their weapons without as much need for formal, periodic, costly state training.

At present, the federal government strictly licenses and taxes fully automatic firearms. This could change.

Obviously, a collective right view of the Second Amendment as applied to such a system would run head-on into existing federal firearms laws. As just one example, the federal prohibition against automatic weapons could suddenly be in jeopardy.

Thus, inherent in Petitioners’ collective right position is the consequent power of states to challenge discordant firearms laws and enact legislation authorizing possession of weaponry currently prohibited by federal law. Furthermore, a collective right holding could allow a dramatically broader variety of arms in the hands of citizens than would a decision recognizing an individual right of the people to keep and bear arms. This is because an individual rights view would extend to individualized weapons only, subject to reasonable restriction. In contrast, a collective right view could logically include all variety of weapons currently within the federal arsenal, because the states would be empowered to arm themselves sufficiently to thwart those same federal forces.

If the purpose of the Second Amendment is as the District say it is, then it is incumbent on the 50 states to arm up. It is their duty.

If the logic behind the Second Amendment is to preserve the right of states to maintain militias that constitute a counterweight to federal forces, as Petitioners contend, then states would logically be allowed to keep and bear even the most potent and destructive weapons of modern warfare.

Having the weapons, the states need a structure which doesn't exist today.

Given this gradual transformation, and the current structure of the National Guard, it logically cannot serve the role of state militia that underlies Petitioners’ collective right interpretation of the Second Amendment. Stated differently, the National Guard cannot stand as a state bulwark against abuses by the federal government, because it now exists primarily as a federal force subject to national control.

***
Given this fact, the National Guard’s status as an organization subject to federal authority might immediately be exposed to challenge if Petitioners’ collective right proposition is adopted. Thus, should Petitioners’ contention that the Second Amendment confers only a collective right upon the states prevail, then a dramatic reexamination of other relationships between state and federal governments will be necessary. If this Court rules that the Second Amendment effectuates the proposition that state militias exist to check federal power, then other seemingly settled questions of state-federal relations may be reopened to question.

Not only is this path difficult to imagine, given its obvious circularity, but it is nearly impossible to imagine this Court opening up the fifty years of litigation that would be necessary for the courts to draw the new lines of authority between the people, their states and the federal government.

In fact, such a decision would put some real meaning behind the term federal.

RELATED LINKS:
State AGs; 31 to 5, in Favor of Heller
Heller: The Analysis of Crime Statistics
Heller Has More Friends
Heller's Friends: The Doctors' Prescription
Heller's Friends in Congress, And One More
Heller’s Friends: Claremont Institute and the Scholars
The Heller Posse: A Roundup of Briefs: The NRA
Heller: The Good Guys Shoot Back, With Effect
On Heller: Shot in the Back by the Bush DOJ

For even more on the case and the subject, click here.

Gee, I'd almost like to see it happen. Almost.