The Second Amendment Term?
posted by Mike O'Shea
District of Columbia Mayor Adrian Fenty announced today that the District will petition the U.S. Supreme Court for certiorari in the landmark Second Amendment case of Parker v. D.C. The District has asked for a 30-day extension of the August 6 deadline for filing its petition.
There has been extensive and lively discussion of Parker, yet I think the legal commentariat has not quite grasped how momentous a cert grant would be. It’s not often that the Supreme Court takes up the core meaning of an entire Amendment of the Bill of Rights, in a context where it writes on a mostly clean slate from the standpoint of prior holdings. If the Court takes the case, then October Term 2007 becomes The Second Amendment Term. Parker would swiftly overshadow, for example, the Court’s important recent cert grant in the Guantanamo cases.
How many Americans would view District of Columbia v. Parker as the most important court case of the last thirty years? The answer must run into seven figures. The decision would have far-reaching effects, particularly in the event of a reversal.
Here is one way to think about the message the Supreme Court would be sending if it reversed the D.C. Circuit on the merits in Parker:
Among the guarantees of the Constitution’s Bill of Rights are the First Amendment’s Establishment Clause and the Second Amendment. The cultural left has traditionally favored a vigorous application of the Establishment Clause. The cultural right has favored a vigorous application of the Second Amendment.
The Establishment Clause does not speak of a “right of the People.” As some Justices have observed, it is susceptible to being read as a mere federalism provision, in the sense of preserving states’ prerogatives against federal power. Its language appears to contemplate the continued existence of state religious establishments, since it prohibits “Congress” from making laws “respecting” the establishment of religion, and some states retained established religions at the time the Bill of Rights was adopted.
Nevertheless, this Court has not interpreted it as a “state’s rights” provision. To the contrary, we have interpreted the Establishment Clause to confer a judicially enforceable, individual constitutional right to be free from religious establishment. More than that, we have carved out an exception to the standing doctrine, unique in constitutional law, in order to enhance the ability of individual taxpayers to challenge Congressional actions on Establishment Clause grounds. (Even the current Supreme Court, widely viewed as conservative, has declined the opportunity to overrule this exception.) And we have held this Establishment Clause right to be fully incorporated against the States via the Fourteenth Amendment, despite the presence of the “federalist” language in the Clause. Although some aspects of our Establishment Clause jurisprudence are intensely controversial for many Americans, we continue to enforce the right in a meaningful fashion.
Unlike the Establishment Clause, the Second Amendment expressly confers a “right of the People.” It is widely believed by Americans to confer an individual right to possess firearms, and the philosophical basis for such a right is clearly compatible with numerous Founding-era sources (including the Declaration of Independence itself). At the same time, similar to the Establishment Clause, the Second Amendment also contains some language (in its prefatory clause) that could be construed to be “federalist” in the sense of referring to state rights against federal power.
Yet despite these structural parallels (which, if anything, are more supportive of an individual Second Amendment right than of the individual Establishment Clause right we have already recognized) we hold that the Second Amendment does not confer a meaningful, judicially enforceable individual right to keep and bear arms — not even a right good against the federal government; let alone a right that is incorporated against the States via the Fourteenth Amendment. The Second Amendment is not violated by a complete legislative ban of a common type of firearm, such as the District of Columbia’s handgun ban.
While rejecting an active role for the Second Amendment, we will, of course, continue to adhere to our interpretation of the Establishment Clause.
It would not be easy for the Court to reverse in Parker without endorsing that message. The litigation has been crafted to present few technical “escape hatches” for a higher court. (The only technical argument for reversal presented in the District’s earlier summary of its grounds for certiorari is dissenting Judge Henderson’s contention that the Second Amendment does not apply to the District of Columbia because of its unique status.)
It isn’t hyperbole to compare Parker to Roe v. Wade in its potential impact on American politics. Indeed, while the “estoppel by Establishment Clause” argument I just gave is intended to be elegant, persuasive and troubling to legal academics (after all, I ripped it off from Akhil Amar), there is a way more straightforward comparison that a whole lot of average Americans would be making. That’s a comparison between the Court’s handling of the enumerated rights claim at issue in Parker, and its demonstrated willingness to embrace even non-enumerated individual rights that are congenial to the political left, in cases like Roe and Lawrence. “So the Constitution says Roe, but it doesn’t say I have the right to keep a gun to defend my home, huh?”
I would expect to see large public demonstrations in Washington during the pendency of Parker, and political candidates being forced to take sides on the litigation (as is already beginning to happen). The case would cast a long shadow on the national elections in 2008 and beyond.
This might lead the Court to deny certiorari, as it has done in nearly all Second Amendment cases for the past sixty-odd years. But there is now a square split of authority between the federal circuits on the interpretation of the Second Amendment, as well as a long-standing split of the state courts, and these are classic reasons for granting certiorari. It’s difficult to predict how the Justices will respond to the petition. Maybe this is it.
If Parker does reach the Supreme Court, then it will be the big story of the 2007-08 Term. And the Roberts Court, not yet two years old, will take a giant step toward defining its legacy.