Evaluating the Second Amendment in the Twenty-First Century
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.
—Constitution of the United States, Amendment II; Ratified 1791.
In 2015, the Supreme Court received a Petition for a Writ of Certiorari to review Friedman v. City of Highland Park. This case, having come up through the District and Circuit Courts, challenges an Illinois city’s ban on certain semi-automatic weapons. The petitioners claim the ban violates second-amendment rights, but the District and Circuit Courts disagreed.
The Supreme Court has not yet agreed to accept the case (Sherman, 2015).
The Supreme Court may have good political reason to reject the request. The federal case history on second-amendment rights suggests the Supreme Court will never craft a satisfactory interpretation of the amendment. Such a task has been made virtually impossible by the evolution of both the nature of firearms and the United States’ armed forces since the amendment’s ratification in 1791.
This case begins with Highland Park City Code, Title XIII: Misdemeanors; Chapter 136: Assault Weapons. This ordinance from a suburb of Chicago criminalizes possession of numerous forms of semi-automatic rifles, semi-automatic pistols, semi-automatic shotguns, and large capacity magazines. The Illinois State legislature’s Firearm Concealed Carry Act on July 9, 2013 made it “the last state in the country to allow carrying firearms in public,” securing for the state the “exclusive authority to regulate possession and ownership of assault weapons” while also retaining the validity of “local ordinances regulating assault weapons enacted before July 19, 2013”, such as Highland Park’s (McEvoy, 2013). Entering the federal courts as a constitutional matter, Friedman carries questions of federal versus state powers. May states and cities legislate restrictions on gun ownership, or is there clear federal supremacy?
If the right to keep and bear arms is a fundamental constitutional right, then the fed has supremacy to strike down unconstitutional state and local laws. But this requires applying constitutional standards. In his opinion, Circuit Court Judge John Darrah wrote that “a severe burden on the right to armed self-defense has not been demonstrated” by the ordinance, which left other permitted classes of weapons available, and therefore the ordinance “does not violate the Plaintiff’s Second Amendment Rights” (Darrah, p. 17, p. 20).
Second-amendment questions draw other amendments into the fray, such as “the fourteenth amendment as applied to the states,” one of the arguments raised by Friedman plaintiffs and acknowledged in the Seventh Circuit Court’s opinion affirming Darrah’s decision (Easterbrook, 2015, p. 2). But even beyond the questions of State power and crafting a rationale that conforms to related amendments, the second amendment has proven notoriously hard to interpret, even when using recent Supreme Court decisions in Heller (2008) and McDonald (2010) as a rough guide to its scope—as Easterbrook’s Circuit Court opinion did.
3. Constitutional Interpretation.
In the first question presented to the Supreme Court in the Petition for Writ of Certiorari, plaintiffs ask “whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a class of constitutionally protected ‘Arms’ that includes the most popular rifles in the Nation” (Friedman, 2015, p. i). If such a class of weapons is constitutionally protected, how can the Constitution simultaneously allow its prohibition? Either the weapons are protected, or they can be prohibited—not both. The real question is whether or not the weapons are constitutionally protected, or else the question would answer itself, and we would have no need for litigation. But this confusing language is part and parcel of second-amendment debates.
In the case history, every aspect of the twenty-seven-word amendment has come into question. What does “well-regulated militia” mean? In 1791, the USA had virtually no standing army, and ordinary people were called into service when military force was needed. George Washington led one such militia, a force containing thousands of draftees, in 1794 against a tax rebellion in Pennsylvania. The militia referred to in the amendment does not truly exist anymore, now replaced by standing armies and multiple branches of armed forces. Are the millions of small-arms owners “well-regulated” by passing brief safety courses as a condition of ownership? They certainly don’t need to have any formal or recurring training in military tactics or strategy.
What of infringement? Numerous infringements have already been established, if we can reasonably equate “restrictions” with “infringement”. Minimum age restrictions, restrictions against felons, and restrictions against those with psychiatric disorders all infringe on gun ownership. Even the definition of “arms” is restricted. Citizens generally cannot possess atomic bombs nor install anti-aircraft artillery on their roofs. “Arms” in 1791 were muskets, single-shot rifles, and flintlock pistols. Applying that same term to twenty-first century weapons has proven problematic. These are no small questions, and the courts have gone to great length to try to develop a rationale for interpreting the second amendment’s archaic language in modern terms. These cases continue to come before the courts because neither the judiciary nor the legislature has established a clear consensus.
4. Time for an Update.
The case history shows that even when a court reaches a decision, it is not unanimous within the court. Nor is its interpretation at the Circuit and District levels consistently applied, and much is left for the lower courts to interpret. Judge Easterbrook wrote in the District Court opinion when discussing the subject of how dangerous specific weapons are and if that affects their scope of constitutional protection:
“The problems that would be created by treating such empirical issues as for the judiciary rather than the legislature—and the possibility that different judges might reach dramatically different conclusions about relative risks and their constitutional significance—illustrate why courts should not read Heller like a statute rather than an explanation of the Court’s disposition” (p. 6).
Judges have a difficult time interpreting constitutionality of a vague law! How could we expect a consistent national interpretation of a terse 1791 amendment which applied to a completely different social, military, and technological context than what we must address in the twenty-first century?
A reasonable alternative would be replacing the second amendment with one crafted to address modern concerns, to definitively clarify the statutory questions and provide a foundation for consistent application. The practical limits of the constitutional right need clarified, and the federal courts could unburden themselves by passing power to the states to craft their own legislation within federally established guidelines.
It would be no small task to get a congressional majority to agree on such an amendment, much less the necessary three-fourths majority of states to ratify it. It might even be impossible. And, as the second amendment did, a new amendment risks failing to anticipate the future of guns and ammunition, leaving the Courts trapped in endless battles. To avoid this, it would need to be specific yet flexible. In theory, a solution could be found through cooperation between the federal and state governments affected by gun ownership. But in reality, we are most likely doomed to continue this never-ending interpretational battle in the courts every time a community wants to regulate gun ownership.
Constitution of the United States. Retrieved 24 October, 2015 from https://www.usconstitution.net/const.pdf
(Darrah). United States District Court, Northern District of Illinois, Eastern Division. Arie S. Friedman and Illinois State Rifle Association v. City of Highland Park, Illinois, Case No. 1:13-cv-9073. Memorandum Opinion and Order (Judge John W. Darrah) retrieved from http://smartgunlaws.org/wp-content/uploads/2014/09/2014.09.18-Friedman-v.-City-of-Highland-Park.pdf
(Easterbrook). United States Court of Appeals for the Seventh Circuit. (27 April, 2015). Arie S. Friedman and Illinois State Rifle Association v. City of Highland Park, Illinois: Case No. 14-3091, Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 13 C 9073. Opinion (Easterbrook, joined by Williams) and Dissenting Opinion (Manion) retrieved from http://www.scotusblog.com/wp-content/uploads/2015/10/Highland-park-op-below.pdf
Friedman, Arie S. and the Illinois Rifle Association. (27 July, 2015). On Petition for Writ of Cetroriari to the United States Court of Appeals for the Seventh Circuit. Retrieved from http://michellawyers.com/wp-content/uploads/2014/09/Friedman-v-Highland_Petition-for-Writ-of-Certiorari.pdf
Highland Park City Code. Title XIII: Misdemeanors; Chapter 136: Assault Weapons. PDF Retrieved 23 October, 2015 from http://www.cityhpil.com/DocumentCenter/View/4687
McEvoy, Caitlyn G. (December, 2013). “Second Amendment: The New Illinois Concealed Carry Law.” Illinois Bar Journal, 101(12), p. 620. Retrieved from https://www.isba.org/ibj/2013/12/thenewillinoisconcealedcarrylaw
Sherman, Mark. (18 October, 2015). “Major Assault Weapons Case May Be Heading to the Supreme Court.” Huffington Post. Retrieved from http://www.huffingtonpost.com/entry/major-assault-weapons-case-may-be-heading-to-the-supreme-court_562395d1e4b08589ef47ba2f
Appendix: Relevant Cases Cited in Decisions
Supreme Court of the United States. (26 June, 2008). District of Columbia et al. v. Heller. Certiorari to the United States Court of Appeals for the District of Columbia Court. Syllabus and Opinion retrieved from http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf
Supreme Court of the United States. (28 June, 2010). McDonald et al v. City of Chicago, Illinois, et al. Certiorari to the United States Court of Appeals for the Seventh Circuit. Syllabus and Opinion retrieved from http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf