Time for definite ruling on right to bear arms

ON POLITICS

May 06, 1994|By JACK GERMOND & JULES WITCOVER

WASHINGTON -- Once again, in the fight in the House to ban semiautomatic assault weapons, the most popular argument against the ban, that it violates the Second Amendment "right to bear arms," was front and center. The National Rifle Association continues to advance it, in the face of the view of numerous legal scholars and, predictably, advocates of gun control, that the Constitution does not bestow any such right on the individual citizen.

The dispute lies in the specific language of the Second Amendment: "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 pro-gun lobby says the right is absolute regarding any hand-portable weapon that might be conceivably used by a "militia." That takes in just about anything short of an artillery piece.

The gun-control lobby argues that the language clearly indicates that the purpose of the Second Amendment was to assure the right to assemble or keep a militia, as the various states did at the time of the authorship of the Bill of Rights, for collective security, not a license for anyone to tote a weapon that clearly had no related purpose.

Given this dispute, why don't both sides just bring this basic constitutional issue to the Supreme Court for a clear-cut decision once and for all?

Gun-control advocates, such as Dennis Henigan, director of the Center to Prevent Handgun Violence, respond that such a decision already is on the books: United States vs. Miller in 1939. The case involved the transport across state lines of a 12-gauge shotgun with a sawed-off muzzle unregistered as required by the National Firearms Act. A federal district court had ruled the application of the act violated the Second Amendment, but the Supreme Court reversed the ruling.

"In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia," the court's opinion said, "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Henigan notes that when a federal court in 1992 upheld a state ban on assault weapons in California, the NRA chose not to take the case to the Supreme Court because, he says, "they knew they would lose." And in several challenges to the Brady bill that requires background checks by state and local agencies on prospective purchasers of handguns, he notes, the NRA has relied on the 10th Amendment reserving to the states powers not delegated to the federal government, not on the Second.

Richard Gardiner, legal counsel for the NRA, insists that the Supreme Court in U.S. vs. Miller did not definitively say that the Second Amendment did not protect the individual's right to bear arms, but only that it could not say that the sawed-off shotgun in question qualified as a "militia weapon." In today's National Guard, he says, the semiautomatic assault weapons in the congressional legislation clearly do qualify.

The reason the NRA has not gone to the Supreme Court for an up-to-date, clear-cut interpretation of the Second Amendment is not because it fears it will lose, he says, but because there have not been sufficient lower-court rulings to produce a realistic chance that the Supreme Court would take the case. The NRA hopes to generate enough cases for that to happen, he says.

As for relying on the 10th Amendment in fighting the Brady bill, he says, it is being used because a more recent Supreme Court decision, in 1992, was available and applicable than U.S. vs. Miller, handed down nearly 55 years ago. It's just a matter of "litigation strategy," he says.

Legal shadowboxing over the Second Amendment may be one thing, but informing the public is another. With the NRA continuing to claim the individual right to bear arms, and the threat to it from efforts to curtail gun mayhem in the country, it seems long overdue for one side or the other to push for a clear-cut ruling from the Supreme Court on this critical issue.

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