Whose Right to Bear Arms?

Posted: Feb 08, 2006 6:30 PM

In a moment of uncharacteristic ebullience, William Gladstone described the American Constitution in 1878 as "the most wonderful work ever struck off at a given time by the brain and purpose of man." Like many contemporary commentators, the prime minister had given too little thought to the Constitution's Second Amendment.

If the Supreme Court agrees to hear a pending appeal in a New York case, that neglect may soon be addressed. The amendment reads, as every schoolboy knows:

"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."

A Virginia lawyer, David D. Bach of Virginia Beach, has embarked upon a personal quest to clarify the murky language of our Founding Fathers. He brings impeccable credentials to a difficult task. He has served for 25 years as an officer in the Naval Reserve, including 12 years of active duty as a Navy SEAL. He returned recently from a tour of duty in Iraq. He's now attached to the Navy's Office of General Counsel.

Bach is a citizen of Virginia. He frequently drives with his wife and children to visit his parents in upstate New York. The long trip takes him through areas where brigands reasonably may be anticipated. He wants to be armed and prepared. Wholly apart from his sense of potential peril is his conviction that he has a constitutional right to bear arms. He long ago obtained a license to carry a handgun in Virginia, but when he applied for a similar permit in New York, he hit a stone wall. His repeated applications were repeatedly denied. Nine months ago, a panel of the U.S. 2nd Circuit unanimously upheld the state's unfriendly law.

Bach's appeal to the Supreme Court presents interesting questions of constitutional law. Gladstone's after-dinner encomium was mostly hooey. Our beloved Constitution is riddled with ambiguities, inchoate provisions, chameleon clauses. As a die-cut legal document, it is hardly wonderful at all. Constitutionally speaking, pray tell, what's a privilege? What's an immunity?

More to the point, what is this "right of the people to keep and bear arms"? The phrase dangles clumsily off the end of a poorly punctuated platitude. Chief Justice Warren Earl Burger once said that the amendment must be read as if it began, "Because a well-regulated militia is necessary," and so forth. Today's jurists must struggle with the relevance of the opening words.

For starters, it is unclear whether the Second Amendment applies only to federal authority and not to the separate states at all. Almost all the other original amendments to the Bill of Rights have been incorporated into the familial concept of "due process," but the Second has been an orphan at least since Presser v. Illinois in 1886. The case involved an Illinois activist, Herman Presser, who organized his own militia company of 400 armed men. When he put them on parade one September in Chicago, the mayor ordered him arrested. He claimed rights under the Second Amendment, but a unanimous Supreme Court upheld the city's ordinance.

Presser and his $10 fine are long forgotten, but the precedent lingers on. Judge Richard C. Wesley cited the case at some length in ruling against Bach in the 2nd Circuit. The 1886 opinion, he said, continues to stand for the proposition "that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states." He cited confirming cases in four of the 12 federal circuits. The 5th and 9th circuits have gone the other way. The 9th Circuit regards the old Presser opinion as "thoroughly discredited," but clearly it hangs on.

Judge Wesley also ruled against Bach's argument that New York's law violates the Constitution's privileges-and-immunities clause. The law does indeed discriminate against out-of-staters in their right to travel, but the state's ban supports a substantial interest in monitoring the licensing of guns. In any event, the old Presser case remains controlling. Neither the Second Amendment nor the famous P&I clause can overcome New York's power to regulate the licensing of firearms.

My own sympathies lie with David Bach, a solid citizen who poses no known risk to the people of New York. My love for "states' rights" pulls me in the other direction. New York's law may be unreasonably restrictive, but that is for New York to say.