Show Un holster the Second Amendment Robert A. A Levy Special to the Los Angeles Times Its It's been 68 years since the Supreme Court examined the right to keep and bear arms anns secured by bythe bythe bythe the Second Amendment Its It's been 3 31 J years since the District of Columbia enacted its feckless ban banon banon banon on all functional firearms in the capital Its It's been eight months since the US U.S. Court of Appeals for forthe forthe forthe the District of Columbia Circuit declared the DC D.C. ban among the most restrictive in the nation unconstitutional The obvious incongruity of those three events could be resolved soon Later this month the Supreme Court will decide whether to review the circuit courts court's blockbuster opinion in Parker vs District of Columbia the first federal appellate opinion to overturn a gun control law on the ground that the Second Amendment protects the rights of individuals I If f the Supreme Court takes the case oral arguments likely will be held this spring with a decision expected before June 30 Full disclosure I am am counsel co-counsel for the plaintiffs and amone amone am amone one of the attorneys who initiated the lawsuit The stakes are immense Few legal questions stir the passions like gun control And this round of the courtroom battle will be fought during the heat of the 2008 election Further Washington is home to the federal government making it an appropriate venue to challenge all federal gun laws no matter where an alleged Second Amendment violation might have occurred Thus Parker could have an immediate effect not only on DC D.C. gun regulations but on federal regulations Equally important if the Supreme Court affirms the DC D.C. circuits circuit's holding state gun-control gun laws could be vulnerable to constitutional attack But before that happens two other issues would have to be litigated The first is the knotty question of whether whether the the Second Amendment can be invoked against state governments Until 1868 when the Amendment was ratified the Bill of Rights applied only to the federal government But in inthe inthe inthe the aftermath of the Civil War much of the Bill of Rights was considered incorporated by the Amendment to bind the states as well Regrettably the incorporation of the Second Amendment has not yet been settled And that issue did not hot arise in Parker because the District of Columbia is a federal enclave not a state The second question is even more complicated What restrictions on gun possession and use would be permissible Almost no one argues that Second Amendment rights are absolute After fter all under the First Amendment the right to free speech does not protect disturbing the peace religious freedom does not shield human n 1 sacrifice Similarly gun regulations can be imposed on some weapons eg e.g. missiles some people eg e.g. preteens and some uses eg e.g. murder Indeed the appeals court acknowledged that Washington might be able to justify such things as concealed-carry concealed restrictions registration requirements and proficiency testing But the Constitution does not permit an the across-the- board ban on all handguns in all homes for all residents as in the case of the Washington ban with the exception of current and retired police officers Somewhere in the middle regulations will be deemed constitutional even if the Supreme Court upholds the lower court Meanwhile the Supreme Court also will have to reexamine reexamine reexamine re- re examine its 1939 gun case United States vs Miller which generated mo more than light regarding the Second Amendment The core holding of Miller stripped of confusing clutter was that protected weapons must be in common use and must bear some reasonable relationship to the preservation or efficiency of a well-regulated well militia Parker is entirely compatible with that holding Pistols which are banned in DC D.C. are self-evidently self in common use and they have been carried into battle by American troops in every conflict since the Revolutionary War But Buta a proper reading of the Second Amendment should not attempt to link every weapon to the militia that except to note the grand scheme of the amendment was to ensure that people trained in the use of firearms would be ready for militia service Significantly the thew I w Second Amendment explicitly to the right of i the people not the rights of states or the militia And the Bill of Rights is the section of our Constitution that deals exclusively with individual liberties That is why there has been an outpouring of legal from scholarship some prominent liberals that recognizes the Second Amendment as securing the right of each individual to keep and bear arms anns Considering the text purpose structure and history of our C Constitution and the clear weight of legal scholarship its it's time for the Supreme Court to revitalize the Second Amendment which has lain dormant for nearly seven decades |