Just as we tend to think that everything has already been invented, only to be proven wrong several times a day, we tend to view Constitutional law as immutable. Written in stone, black letter, beyond cavil, there are a host of phrases that lawyers and judges love to pull out to shut down any novel argument or distinctive approach to the law that hasn’t already been approved by someone else.
Mike O’Shea, guest-blogging at Concurring Opinions, deconstructs the D.C. v. Heller case, where Heller’s merits brief is due this coming week. This case may turn our view of the Second Amendment right to bear arms upside down. But remember this oldie but goodie?
Since the Second Amendment right ‘to keep and bear Arms’ applies only to the right of the State to maintain a militia and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.
United States v. Warin, 530 F.3d 103 (6th Cir. 1976). Every schoolchild is taught how we started with Plessy v. Ferguson and ended with Brown v. Board of Ed. Was Thurgood Marshall just another nutty lawyer when he argued against an interpretation that was beyond question was totally wrong?
The notion that the Second Amendment applied only the collective right to possess guns was beyond question in Warin, and in the minds of lawyers of my generation and beyond. Yet today, the argument is persuasively made that we were wrong, and obviously so, for all that time.
Mike O’Shea provides a comparison of the language of the Second Amendment with the rest of the Bill of Rights, and how they’ve been viewed by the Supreme Court:
• The First Amendment’s Establishment Clause appears merely to bar Congress from interfering with state religious establishments. However, it has been interpreted to confer a (fully incorporated) individual constitutional right to be free from religious establishment, complete with a custom-tailored exception to the taxpayer standing doctrine to encourage Establishment Clause challenges to legislative action.
• The First Amendment’s Free Speech Clause protects the “freedom of speech, [and] of the press.” It has been interpreted to protect the private possession of works of obscene pornography and at least some forms of virtual child pornography.
• The Fourth Amendment simply states that search warrants shall be subject to requirements of probable cause and particularity. It has been interpreted to presumptively require a warrant for any search or seizure, unless a specific exception applies.
• The Fifth Amendment: Miranda. Enough said.
• The Sixth Amendment states that a criminal defendant has the right “to have the Assistance of Counsel for his defense.” It has been interpreted to confer a right, not merely to receive assistance from retained counsel, but to have counsel appointed by the government, free of charge, if a defendant cannot otherwise afford it.
• The Eighth Amendment prohibits cruel and unusual punishment. Although statutes imposing the death penalty for serious felonies were common at the time of the Framing, the Eighth Amendment has been interpreted to prohibit capital punishment for the rape of an adult woman (and probably for child rape).
One thing that smacks me in the face when I read Mike’s comparison is how our political and social agenda has shaped constitutional interpretation. This is a bitter pull for those of us who argue against it today, when the pendulum seem stuck on the law and order side of the aisle (actually, law and order is both sides of the aisle today). Hating to be overtly hypocritical, I find this troubling.
But the “emanations and penumbras,” as Wild Bill Douglas called them in Griswold, of the Heller case may open some very curious doors in the world of criminal law. How many of our clients are in prison, or branded a elon and denied the full panoply of rights given the rest of the People, because of their possession of an unlicensed handgun? If Heller goes as anticipated, will this mean that all of these defendants, past and present, be exonerated or have their record expunged for engaging in conduct that the Constitution says they have a right to do? It’s not just that the crimes for which they stand convicted are unconstitutional, but that they have, and always had, an affirmative right to possess a gun. How can they suffer punishment, or perpetual taint, for the exercise of a right?
But it goes even farther. If the government imprisoned them for exercising a constitutional right, are they not then entitled to compensation for this wrongful imprisonment? And the felon in possession issue, not to mention the extra 5 years for the overbroad “use and carry” in a drug case, are huge. Will this open the door to 1983 actions across the land? When the vision of a basic constitutional rights turns completely around, it opens the door to a breathtaking bundle of issues, each of which will implicate in some way the work of criminal defense and civil rights lawyers.
The Heller case has the potential for a seismic shift in criminal law. Hold on to your hats. This could be a wild ride.