Lawyers, Guns, and Money

Before getting into the Supreme Court’s argument today in District of Columbia v. Heller, the title from the Warren Zevon song prompts this best Zevon quote ever. Shortly before his premature death, he was asked what he would tell those (unlike him) not expecting to die soon. His response: “Enjoy that sandwich.”
As for the Second Amendment, it states: “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 question now before the Supreme Court is whether that right — and it is a right, enacted as part of the Bill of Rights — is limited to arms used for militia purposes. Does that mean it covers only guns owned by the militia? Or guns that have military uses?
It all turns on whether the comma in the middle of the amendment links two clauses in a single idea (guns only for militia purposes) or whether it separates different ideas (guns for militia, and a right to bear arms). Reports from the oral argument today suggest that at least five Justices are going to find a constitutional right to bear arms, not tied to a militia.
To paraphrase Rick in Casablanca, “of all the rights to be found by the Roberts Court in the entire Constitution, I suppose it would have to be the right to carry a gun.”
If the outcome were determined by the volume of amicus curiae briefs, the pro-gun forces would win in a walk — 45 amicus briefs to a paltry 20 supporting DC’s gun law. And what excellent groups filed those briefs: “Brief for 126 Women State Legislators and Academics” (who cite Abigail Adams’ admonition to her husband to “remember the ladies”), “Pink Pistols and Gays and Lesbians for Individual Liberty,” and “Jews for the Preservation of Firearms.”
From my part of the intellectual ghetto, dueling historians filed amicus briefs, each trumpeting historical nuggets that demonstrate that their side should win.
The Cato Institute and Professor Joyce Lee Malcolm insist that English law always protected the right of the citizenry to carry weapons, which the Second Amendment applied for Americans. (So why are there so many fewer guns in England now?)
A fistful of historians, led by Jack Rakove at Stanford, sort of admit that tradition, but claim that the British right was heavily regulated and did not make it across the Atlantic, anyway. They argue that the Second Amendment grew out of anxiety over federal control of the state militias, as established by the Constitution, and thus applies only to a militia.
With coherent arguments on both sides of this case, look for political orientation to drive the Justices’ votes. The Supreme Court is, after all, a political institution.
Also, enjoy that sandwich.