Tom Fudge: "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." So reads the Second Amendment to the U.S. Constitution. Over the years, courts have tended to interpret the Second Amendment as guaranteeing the right of states to have militias, not an individual right to bear arms.
But that view is by no means unanimous. And a recent court decision in Washington D.C. has provided new fodder for the argument in favor of an individual right. If that argument goes to the U.S. Supreme Court and prevails, it could eliminate hundreds of gun control laws across the country.
Guest
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Dan Eaton,
These Days
legal analyst.
The following background research represents the views of Dan Eaton alone and does not represent the views of KPBS
TOPIC ONE
IS THERE AN INDIVIDUAL RIGHT TO BEAR ARMS?
D.C. COURT RULES THERE IS
On March 9, the U.S. Court of Appeals for the District of Columbia ruled on a constitutional challenge brought by a handful of D.C. residents who claimed that the city’s virtually complete ban on owning handguns and requiring other kinds of firearms to be disassembled or trigger-locked if kept in the home. The Court, by a 2-1 vote, issued a 58-page opinion in Parker. v. District of Columbia (D.C.Cir. 2007) 478 F.3d 370, holding that both the virtually complete ban on handguns and the restrictions making other firearms all but unusable in the home violated the Second Amendment of the U.S. Constitution. The Second Amendment, which is part of the Bill of Rights, is a single sentence that reads: “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.” (Capitalization in the original.)
Reliance on Original Understanding of Second Amendment
The Court majority found that the text and history of the amendment demonstrated an intent by the framers and ratifiers to confer an individual right to keep and bear arms. That right, according to the majority, was and is not limited to the use of arms in military service, but includes such personal uses as hunting and repelling intruders from the home. “The people” in the amendment, according to the majority, refers to individuals, not states, pointing out that the same phrase appears in, for example, the First and Fourth amendments among others. Among additional reasons, the majority pointed out that the Second Amendment appears in the middle of a list of other individual rights and also that the able drafters of the amendment could have chosen a more direct way of limiting the amendment to militias if that is what they intended.
The majority dealt with the first clause of the amendment, “a well-regulated Militia being necessary for a free State” by essentially saying that, historically, the “militia” was drawn from virtually the whole population and the laws addressing militias assumed by their language that individuals would have their own weapons. That, said the majority, is consistent with the idea that the Second Amendment conferred an individual rather than a collective right to keep and bear arms.
Mixed Interpretation of Second Amendment by Other Courts
Nine of the eleven other federal courts of appeal, including the Ninth Circuit which hears appeals from California federal courts, have squarely held that that “the Amendment protects only a right of the various state governments to preserve and arm their militias.” (Opinion, p. 14 and p. 16, note 4* , citing, among other cases, Silveira v. Lockyer (9th Cir. 2003) 312 F.3d 1052, 1092.) The Second Circuit Court of Appeals, which hears appeals from New York federal courts among others, has never addressed the question. Only the Fifth Circuit Court of Appeals, which hears appeals from the federal courts of Texas among other states, has previously interpreted the Second Amendment to include an individual right to gun ownership. ( United States v. Emerson (5th Cir. 2001) 270 F.3d 203, 264-265.) The Parker majority also pointed out that “[o]f the state appellate courts that have examined the question, at least seven have held that the Second Amendment protects an individual right.” (Opinion, p. 17, note 17.) The appellate courts of at least ten states including D.C., according to the majority, have held the Second Amendment provides only for a collective right. ( Ibid .)
Limited Second Amendment Rulings by California State Courts
California state courts have not definitively addressed this question. In an unpublished portion of a ruling handed down in January of this year, a California Court of Appeal in Sacramento affirmed a conviction for unlawful possession of a machine gun and illegal assault weapons. The defendant in that case argued that the Second Amendment gave him the absolute right to keep guns as long as they could be classified as military type weapons. The Court dismissed the argument out of hand. “To state such an absurd right is to refute it.” ( People v. Wilmshurst (2007) 146 Cal.App.4th 621, unpub. portion.) The Court noted, however, that the United States Supreme Court has never determined “whether the Second Amendment right is an individual or a collective right.”
In 1995, our state’s highest court in a footnote assumed, without deciding, that the Second Amendment grants an individual right to keep and bear arms, though pointed out that the right has never been held to be absolute. ( People v. Bland (1995) 10 Cal.4 th 991, 1004, note 6.) The Court consequently held that additional prison time for keeping an assault weapon handy with illegally possessed drugs did not violate the amendment.
States Weigh In On Both Sides of D.C. Case
Several states filed friend-of-the-court briefs in the D.C. appeal. A group of four states, including Massachusetts and Idaho, filed a brief supporting the position of the D.C. city government that its virtual ban on handgun ownership did not offend the constitution. A group of 13 states, including Texas and Minnesota, filed a brief saying the ban did offend the Second Amendment. Unsurprisingly, the NRA and the Brady Center To Control Gun Violence also filed briefs on opposite sides of the question.
The U.S. Supreme Court 1939 Second Amendment Decision
The United States Supreme Court has addressed the proper interpretation of the Second Amendment only once in the twentieth century and that was in 1939. In United States v. Miller (1939) 307 U.S. 174, the Court ruled that the Second Amendment did not give an individual the right to own and transport across state lines a sawed off shotgun. The Court ruled that a sawed off shotgun was not kind of the “arms” whose possession was protected by the Second Amendment. The amendment, the Court held, covers only those firearms that bear “some reasonable relationship to the preservation or efficiency of a well regulated militia.” ( Id . at 178.)
The Parker majority did not find the wording in Miller inconsistent with a finding of an individual right to bear arms. The majority pointed to language in laws passed around the time the Second Amendment was enacted that referred to individuals bringing their private “pistols” and “rifles” when enrolling in a militia as evidence that the possession of handguns, their modern equivalent, is indeed constitutionally protected. (Opinion, pp. 50-53.)
One Judge Dissents Because D.C. not a “State”
One of the three judges on three-judge D.C. panel that decided Parker disagreed with the other two and filed a dissent. For her, the issue was simple. She said that, given that the Second Amendment was designed to ensure the “security of a free State,” it could not apply to the District of Columbia because the District of Columbia is not a state. If, as the dissenting judge concluded, the amendment was designed to prevent the federal government from disarming state militias, it would make no sense to apply it to the federal capital whose security is provided by the federal government itself.
Constitutional Scholars Split on Second Amendment
Most constitutional scholars reject the idea that the Second Amendment gives individuals the right to bear arms. Seven years ago, a group of 52 law professors and historians filed a brief in the Fifth Circuit case out of Texas in which they argued – unsuccessfully, as it happened – that the historical record demonstrated that the phrase “bear arms” has only a military meaning and did not include an individual right to have firearms. The scholars wrote that the “best evidence” of their view was the original version of the Second amendment proposed by James Madison, the Father of the Constitution. The original version read: “The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” (Quoted in “To Bear or Not to Bear: It Depends on How You Read History,” New York Times September 24, 2000.) They argued that the conscientious objector clause for persons “religiously scrupulous of bearing arms” would make no sense if an individual, rather than a collective right were being granted.
There is a sizeable minority of constitutional scholars, however, that takes a different view. (See Printz v. United States (1997) 521 U.S. 898, 938, note 2, Thomas, J., concurring, listing scholarly authority on both sides of the question.) Among them is Laurence Tribe, a liberal constitutional law professor at Harvard Law School and one of the country’s leading Supreme Court lawyers, who has written in his leading constitutional treatise, which is used as law school textbook in many places, that the Second Amendment does guarantee an individual right to possess weapons. The D.C. Court’s majority cited that text in its opinion. (Opinion, pp. 17-18.) In an interview with The New York Times in May of 1999, Professor Tribe was 34ed as saying: “It becomes impossible to deny that some right to bear arms is among the rights of American citizens.” (“Right to Bear Arms: A Second Look,” New York Times , May 30, 1999.) Professor Tribe added in the same interview: “A lot of people who are coming to the conclusion that the Second Amendment is not just limited to the states are themselves quite liberal. . . . It’s not just the ‘hired guns for the NRA.’” Professor Tribe nonetheless told the interviewer that he believed that most existing gun control laws would not be unconstitutional even under such a reading of the Second Amendment.
Bush Administration: Second Amendment Gives Individual Right
The Bush administration also has weighed in on the issue. The U.S. Department of Justice has issued an opinion that the Second Amendment protects an individual right to gun ownership. (See Op. Off. Of Legal Counsel, “Whether the Second Amendment Secures an Individual Right” (2004) available at http://www.usdoj.gov/olc/secondamendment2.pdf , cited at Opp., p. 17.)
Prospects for Supreme Court Review of D.C. Ruling
Parker could eventually reach the U.S. Supreme Court. One of the primary functions of the Supreme Court, as Justice Stephen Breyer and others have said, is to resolve conflicting interpretations of constitutional rights among the lower federal courts of appeal. That is because the constitution should not mean one thing in California and another thing in Texas. Parker , however, was decided by a three-judge panel. The full D.C. Circuit could well decide to reconsider the ruling before the Supreme Court is asked to review it.
Some of the current members of the Supreme Court have suggested in opinions or other writings how they would approach the issue of whether there is an individual right to keep and bear arms. Justice Antonin Scalia, for example, whose constitutional theory of original understanding was addressed in an earlier “These Days” segment, has said that he believes the Second Amendment confers a right to individual possession of firearms. (See Scalia, A Matter of Interpretation: Federal Courts and the Law (1997) pp. 136-137, note 13.) Another conservative member of the Court, Justice Clarence Thomas, also has hinted in a concurring opinion that he believes there is such an individual right. ( Printz v. United States (1997) 521 U.S. 898, 937-938, Thomas, J., concurring: “The Second Amendment . . . appears to contain an express limitation on the Government’s authority.” In Printz , the Supreme Court struck down the obligation of state law enforcement officers to conduct background checks on prospective gun purchasers under the Brady Handgun Violence Prevention Act as a violation of the Tenth Amendment’s reservation of powers to the states and the people.)
The Parker majority interpreted even a prior statement by some Justices generally considered liberal to indicate support for an individual Second Amendment right. The majority concluded that language in a 1998 dissenting opinion by Justice Ruth Bader Ginsburg, one of the Court’s more liberal members, and joined by Justice Scalia and Justice Souter, another of the Court’s more liberal members, hinted that these Justices believe that the Second Amendment has a “meaning beyond mere soldiering.” (Opinion, p. 27.) It is nonetheless far from clear how a majority of the current Justices would rule if faced with this precise question.
The Beginning of the End of Gun Control?
If the Supreme Court were to accept the case for review and agree with the D.C. Circuit majority, it will not signal the end of the regulation of gun ownership, though the scope of such regulation may be limited. Even those who believe that the Second Amendment includes a right to individual gun ownership, such as Justice Scalia and the Parker majority itself, agree that the government may impose reasonable regulations on that right, such as requiring registration of firearms, prohibiting the carrying of concealed weapons, and limiting the places where an individual may carry a gun.
* The page numbers are from the Court’s original printed opinion, though the case was approved for publication.
TOPIC TWO
MARCH MADNESS: LEGALITY OF OFFICE POOLS
According to an FBI study a few years ago, an estimated total of $2.5 billion is bet on the tournament in office pools focused on the NCAA Men’s Basketball tournament, dubbed “March Madness.” Such pools, however, may constitute an illegal lottery under California Penal Code section 319, according to a March 2004 San Diego Union-Tribune story that 34ed a spokesman for the California Attorney General’s office. (“Office Pools Score Big As Morale Boost: Gambling law no match for March Madness,” San Diego Union-Tribune , March 25, 2004.)
California law defines a lottery as any scheme in which people pay for a chance to win a share of any property, such as a pool of money. Even though some consider “bracketology” almost as much of a science as biology, the California Attorney General’s office, at least, apparently takes the view that the accuracy of your picks is essentially luck rather than skill.
Criminal Consequences?
If there is any good news from this threat to what it is typically a nominal bet, it appears that only those who prepare, run, and solicit others for the pool or otherwise assist are technically in violation of the law, which is considered a misdemeanor under California law. (Penal Code §§ 320-322.) That means those who pay the $5 may not be guilty of a crime themselves. (Cf. People v. Cole (1964) 226 Cal.App.2d 125, 127-128: “. . . [T]he state statute may be interpreted to reflect an intention on the part of the Legislature to direct the criminal sanctions against those who promote lotteries rather than to pursue the individual who comes into the possession of a single ticket.”) A misdemeanor is punishable by 6 months in county jail, a $1,000 fine, or both. (Cal. Pen. Code § 19.)
Even if placing the $5 bet itself were considered criminal conduct, a spokesman for the Attorney General’s office was 34ed in the 2004 Union-Tribune article as saying: “It’s not like we have roving bands of SWAT teams on the lookout for office pools. . . . And besides, it’s not much of a challenge to find one.” The AG spokesman was cited in an online publication dealing with gambling as saying he was unaware of anyone getting in trouble for organizing an office pool. “The truth of the matter is that while technically it’s a violation of the law, this is not the kind of thing that law enforcement officials put a high priority on.” Other jurisdictions around the country appear to take the same approach. (See e.g., “Bracketmania strikes across America,” BusinessWeek.com , March 9, 2007.)
Employment Consequences?
Nonetheless, it is not inconceivable that employees have been disciplined for activity related to office pools, but no reported instances of it were uncovered. Indeed, according to a survey of 100 human resources executives conducted by national job-placement firm Challenger, Gray & Christmas released in February 2007, some “94 percent of companies either do not consider productivity loss during the tournament a problem or they allow the March Madness distraction as a reward for hard work the rest of the year.” (“Challenger Employer Survey: 94% Accept March Madness; Forecast: $1.2 Billion in Lost Productivity.” Press Release: February 23, 2007.) The sample size makes the conclusions unscientific, but it is interesting anecdotal evidence of the attitude of at least some employers.
Of course, one can never fully protect oneself from being fired or otherwise disciplined for non-work related conduct, especially in a state likes ours where most workers may be fired at the will of the employer. (Cal. Lab. Code §2922.) The key, though, is not to spend too much time or money on non-work related conduct such as the NCAA tournament. And that includes not spending too much time talking about it. Employees also should avoid using the Internet to access live streams of games in progress at work. That slows down the network.
Employer Response to March Madness
Websense, a San Diego company, has software that helps companies monitor and limit their employees’ use of the Internet. According to the Challenger survey, however, only six percent of employers planned to take steps to block access to March Madness websites, even though a much higher percentage of employers have the ability to monitor such usage.
The biggest challenge to employers during March Madness is lost productivity from employees monitoring the Madness. The Challenger survey estimated that “the cost to employers in lost productivity could exceed $1.2 billion over the course” of the 19 days of the tournament. That’s based on Gallup poll findings that 29 percent of Americans consider themselves college basketball fans, an estimate of 13.5 minutes of work time each such worker/fan will spend monitoring March Madness during each of the 13 business days of the tournament, and the $3.78 the average American worker earns in 13.5 minutes.
Challenger suggests that, instead of focusing on the downside of lost productivity, employers embrace it in a reasonable way to ensure that matters do not get out of hand. For example, Challenger suggests having the break-room tuned to team coverage or even offering flexible schedules.
Of course, the employer is given wide latitude in determining how to respond to March Madness. The Challenger firm suggests that lost productivity is at least partially offset by the boost to morale while employees are following their teams and sharing the excitement with colleagues. That conclusion, however, is something of a guess and no attempt has been made so far to quantify it.
