textfiles/politics/GUNS/judgegun.shy

			      GUN-SHY JUDGES
			      by Jacob Sullum

	"At first glance, the machine gun issue may seem absurd,"
Washington Post reporter Michael Isikoff wrote of a recent challenge to a
federal ban on the possession of automatic weapons.  Try to imagine a
similar observation in a news story about a case involving freedom of
speech or separation of church and state.  And that was in a relatively
sympathetic account of Farmer v. Higgins.
	
	Gun-control advocates were even less kind.  "The NRA wants to
legalize machine guns," wrote Richard Cohen, the Post's chronically
indignant columnist.  "You read that right: machine guns....The zealousness
of the NRA may have at last done it in."

	The New Republic complained that "the NRA is trying more avidly
than ever to spread deadly weapons.  In a case now before the Supreme
Court, the NRA, dropping the usual blather about 'sporting purposes,' is
arguing that the Constitution protects every American's right to own a
machine gun."

	Two things are striking about the way the press handled Farmer v.
Higgins, which the Supreme Court declined to hear in January.  First, it
exaggerated the role of the National Rifle Association, which was not a
party to the case and did not file a friend-of-the court brief (although
its legal defense fund did cover the plaintiff's expenses).  Second, even
reporters trying to be fair (such as Isikoff) gave short shrift to Second
Amendment arguments, while commentators dismissed them out of hand.

	The two points are related.  For supporters of gun control, the NRA
bogeyman serves to conceal issues of individual rights and constitutional
law.  To Cohen and the editors of TNR, the machine-gun case was about a
powerful organization run amuck, not about a Georgia gun collector
resisting government encroachment on his freedom.  Judging from their glib
commentary, you would never guess that a matter of principle was at stake.

	This obliviousness has been encouraged by the Supreme Court's
apparent indifference to the Second Amendment.  The Court has not
considered a gun-control case, other than those involving felons, in more
than 50 years.  Meanwhile, circuit courts have whittled away at the right
to keep and bear arms, lending credence to those who say it no longer
exists, if it ever did.

	Gun owners and their defenders has hoped the Court would take
advantage of Farmer, which involved the first federal ban on possession of
firearms by non-felons, to break its silence.  But as usual, the Court left
us guessing as to what meaning, if any, it will eventually ascribe to 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."

	As hard as it may be for gun control advocates to fathom, J.D.
Farmer, Jr., does indeed believe those words protect his right to own a
machine gun.  In 1986 the Smyrna, Georgia, gun enthusiast applied to the
Bureau of Alcohol, Tobacco, and Firearms of permission to convert a
semiautomatic HK-94 {Is this a mistake?  I know of an HK-91 and HK-93, but
not an HK-94.} into a fully automatic weapon for his collection.  Under the
National Firearms Act (passed in 1934), he had to submit fingerprints and
photographs, undergo a police background check, and pay a $200 tax.  But the
BATF turned down Farmer's application on the ground that the Firearm Owners
Protection Act of 1986 had banned private possession of new machine guns.

	Farmer challenged the BATF decision in federal district court,
charging that the bureau had misinterpreted the law, which provides an
exemption for weapons transferred or possessed "under the authority" of a
government agency.  He argued that this exemption included machine guns
registered with the BATF.  Furthermore, Farmer charged that a machine-gun
ban would be unconstitutional, both because it would violate the Second
Amendment and because the Constitution does not give Congress a blanket
power to prohibit possession of things it doesn't like.  (Previous federal
gun-control legislation had been based on the Interstate Commerce Clause or
the congressional taxing power, neither of which seems to apply in this
case.)

	U.S. District Judge J. Owen Forrester agreed that the BATF's
interpretation of the law was unreasonable and therefore an abuse of
discretion.  He noted that "defendant's proffered interpretation presents
the particularly unattractive possibility of constitutional infirmity" on
both Second Amendment and Commerce Clause grounds.  Forrester ordered the
BATF to process Farmer's application.

	On appeal, the U.S. Court of Appeals for the 11th Circuit
inexplicably declared that "the sole issue is whether section 922(o)[of the
Firearm Owners Protection Act] prohibits the private possession of machine
guns not lawfully possessed prior to May 19, 1986."  Having done away with
Farmer's constitutional objections by the simple expedient of ignoring
them, the court found that the statute had indeed banned private ownership
of automatic weapons.  "We have considered Farmer's remaining arguments and
find them to be without merit," the court asserted in reversing Forrester's
order.

	The court's refusal seriously to examine constitutional arguments
that Forrester had found plausible is symptomatic of the disdain toward the
Second Amendment shown by many judges, legal scholars, and civil
libertarians.  As Sanford Levinson, a liberal professor at the University
of Texas Law School, observed in a 1989 Yale Law Journal article: "For too
long, most members of the legal academy have treated the Second Amendment
as the equivalent of an embarrassing relative, whose mention brings a quick
change of subject matter to other, more respectable, family members."

	Partly because of the neglect, many advocates of gun control simply
do not perceive a constitutional issue associated with firearm regulation.
Hence they take a remarkably cavalier approach to legislation.  Calling for
passage of the Brady Bill, which would establish a national, week-long
waiting period for handgun purchases, The New Republic admits that the
law's impact would be minor at best.  Asked if a federal ban on "assault
weapons" would reduce crime, Gwen Fitzgerald of Handgun Control Inc. says,
"Let's pass the law and find out."

	The lack of Second Amendment scholarship has also hampered
defenders of the right to bear arms.  Richard E. Gardiner, director of
state and local affairs for the NRA, says the shortage of academic interest
is the main reason his organization has until recently been reluctant to
pursue Second Amendment cases.  But during the last decade researchers such
as Don B. Kates, Jr., and Farmer's attorney, Stephen P. Halbrook, have
marshaled impressive evidence on the meaning of the Second Amendment.

	That research has moved at least one gun-control advocate, New
Republic senior editor Michael Kinsley, to admit that the arguments of the
"gun nuts" are stronger than he'd like them to be.  After Levinson's article
appeared, Kinsley wrote a column in which he reluctantly concluded that the
Second Amendment does indeed guarantee "an individual right to own guns."
He acknowledged that the traditional counter-arguments -- for example, that
the National Guard takes care of the "well regulated militia" and therefore
of the "right to keep and bear arms" as well -- are facile at best.

	Still, it remains true, as Levinson put it, that most civil
libertarians simply do not have a place for the Second Amendment on their
"cognitive maps" of the Bill of Rights.  Asked why the American Civil
Liberties Union does not defend the right to bear arms, ACLU Executive
Director Ira Glasser admits that -- contrary to official ACLU policy -- the
Second Amendment protects such a right for individuals.  But he says that
does not mean the government may not regulate guns.  Were Congress to ban
private ownership of firearms completely, he says, the ACLU would challenge
the action.

	This is doubtful, since the organization's policy guide declares
that "the right to bear arms is a collective one....The possession of
weapons by individuals is not constitutionally protected."  But even if
Glasser differs with ACLU policy on this point, he still wonders what all
the fuss is about.  Why worry about gun control when the government is
threatening to cut off funding for abortions.

	Glasser rejects the idea of private gun ownership as a bulwark
against tyranny, since the modern state's firepower would overwhelm
anything citizens could pick up in a gun shop.  But as Levinson noted, "It
is simply silly to respond that small arms are irrelevant against
nuclear-armed states....a state facing a totally disarmed population is in
a far better position....to suppress popular demonstrations and uprisings
than one that must calculate the possibilities of its soldiers and
officials being injured or killed."

	If civil libertarians such as Glasser have difficulty understanding
why law-abiding people would want to arm themselves against the government,
it's because they have strayed so far from the philosophy of natural rights
that underlies the Constitution.  As Halbrook demonstrates in his book
That Every Man Be Armed, the Second Amendment drew on a long tradition in
British common law.  The Framers valued the right to bear arms not merely
for collective defense against invaders but for individual defense against
both criminals and oppressive government.  They understood the "well
regulated militia" to consist of all citizens capable of bearing arms.

	Notwithstanding the Claims of gun-control advocates, the Supreme
Court has never denied this view of the Second Amendment.  In the most
frequently cited case, United States v. Miller (1939), the Court upheld a
provision of the National Firearms Act regulating interstate transportation
of sawed-off shotguns.  But the decision was based on the plaintiff's
failure to demonstrate that such a firearm "at this time has some
reasonable relationship to the preservation or efficiency of a well
regulated militia" (which the Court recognized to be "all males capable of
acting in concert for the common defense").

	By implication, the plaintiffs might have prevailed had they shown
that a sawed-off shotgun is a weapon suitable for militia use.  Hence the
reasoning behind Miller runs directly counter to conventional gun-control
wisdom, i.e., that it's okay to ban "military-style" weapons.  Under the
Miller test, such firearms, including "assault rifles" and machine guns,
are clearly covered by the Second Amendment.

	The Supreme Court has also undermined the old gun-control canard
that the Second Amendment does not apply to individuals.  In the 1990 case
United States v. Verdugo-Urquidez, a unanimous Court made it clear that the
phrase the people means the same thing in the Second Amendment as it does
in the First, Fourth, and Ninth amendments: "a class of persons who are
part of a national community."  (Not, as the ACLU would have it, "the
collective population of each state for the purpose of maintaining an
effective state militia.")

	The Verdugo-Urquidez decision was one reason that Second Amendment
defenders hoped for a favorable ruling in Farmer.  The gratutitousness of
the machine-gun ban also seemed to work in Farmer's favor.  BATF Director
Stephen E. Higgins had admitted in congressional testimony that registered
machine guns are not a law enforcement problem.  "There's not a documented
case since 1934 of the misuse of a registered machine gun by a private
citizen," Halbrook says.  {The one case of a murder using a registered
machine gun was by a police officer, i.e. not a private citizen.}

	But given that the Supreme Court grants only about 1 in 100
requests for review, Halbrook was not surprised that it declined to hear
Farmer.  He says the Court may be waiting for more discussion of the Second
Amendment at the circuit level before considering another gun-control case.
On the other hand, "if there was something comparable to this involving the
First Amendment" -- say, a ban on certain kinds of magazines because they
are particularly prone to libel -- "they would take it," Halbrook says.
"This case would have been a golden opportunity for them to address the
black sheep of the Bill of Rights -- the one amendment that they don't want
to talk about."

  Reprinted with permission from the May 1991 issue of REASON magazine,
  copywrite 1991 by the REASON Foundation, 2716 Ocean Park Blvd, Suite 1062,
  Santa Monica, California  90405.  Subscriptions are $19.95/year (11
  issues); call (815)734-6309.