Supreme Court Has Addressed Gun-Related Issues, Author Says

By Jeff Johnson | July 7, 2008 | 8:21 PM EDT

(Editor's Note: Corrects source of research in last paragraph)

Capitol Hill ( - The U.S. Supreme Court has spoken on the Second Amendment and issues related to the constitutionally recognized right of individual citizens to keep and bear arms more times than most Americans might imagine, according to a new book entitled Supreme Court Gun Cases: Two Centuries of Gun Rights Revealed. One of the book's authors participated in a book forum discussion at the American Enterprise Institute Friday.

Dr. Stephen Halbrook, an attorney who has represented the National Rifle Association (NRA) and won three pro-gun cases before the U.S. Supreme Court, said anyone looking to the past decisions of the Supreme Court to clarify the meaning of the Second Amendment is probably going to be disappointed.

"The Second Amendment is something that's not really well-established in terms of an established jurisprudence by the Supreme Court," Halbrook said. "The court hasn't gotten directly into the issue, other than its mention of the Second has basically not gotten involved in resolving in any definitive way the nature of the right to keep and bear arms."

That does not mean, however, that the court has not addressed issues relating to the ownership, possession and use of firearms by private citizens.

In fact, Halbrook - along with fellow pro-gun attorney Dave Kopel, research director for the Independence Institute, and freelance writer Alan Korwin - examine 92 Supreme Court cases that fit those criteria. Forty-four of those cases are republished in the book in their entirety.

Matt Nosanchuk, litigation director at the anti-gun Violence Policy Center (VPC), believes the book's "most substantial appeal is going to be to readers who are strong proponents of the 'Individual Rights' view of the Second Amendment.

"If this is the best that there is on Supreme Court and gun rights, I'll take it," Nosanchuk said critically, "because I don't find this, as I look through this volume, to be a persuasive account that would support the conclusion that the Second Amendment has been interpreted for centuries by the Supreme Court as protecting an individual right."

Anti-gun 'collective right' theory dismissed by scholars, founding fathers

Nosanchuk and his colleagues in the anti-gun movement argue that the Second Amendment grants only a "collective right" to the states to organize and arm militias, and that there is no constitutional right for individuals to own, possess or use firearms without permission from and regulation by the government.

"It clearly is talking about and embracing a militia-based right," Nosanchuk argued.

Nelson Lund, professor of constitutional law and the Second Amendment at George Mason University School of Law, acknowledged that most of the lower federal courts in the 20th century have accepted Nosanchuk's view.

"I believe that the Supreme Court will reject the consensus of the lower courts when it reaches the issue," Lund predicted. "This 'collective right' or 'states' right' theory has been so thoroughly demolished, so often in the academic literature, that I think the [Supreme] Court will be very, very reluctant to adopt it.

"I'm fairly confident that the Supreme Court, when it reaches the issue, will decide that the Second Amendment is an individual right belonging to private citizens," Lund added.

Halbrook, who has researched the debates over the Second Amendment, noted the total absence of any reference to such a "collective right" in any of those discussions.

"If there were any exponents of a 'collective right' during the period when the Second Amendment was being debated, it's one of the closest guarded secrets of the 18th century," Halbrook noted, "because no such document has ever been seen."

In fact, Alexander Hamilton, writing as Publius in Federalist 29, declared references to the militia to apply to "the people at large."

"Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped," Hamilton wrote, "and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."

Lund admires book but doubts value to persuade Supreme Court

While Lund admires the quality of the book's research, he is skeptical as to its usefulness in swaying the justices of the Supreme Court.

"The kind of legal research in this excellent book we're here to talk about may be not very important as a practical matter," Lund warned. "The more urgent task may be to persuade the justices that laws infringing on the right to keep and bear arms are a bad idea as a matter of social policy.

"If that were successfully done," Lund concluded, "maybe they would feel comfortable in enforcing the Constitution."

Pro-gun scholars believe that task may actually be easier than winning arguments over the correct interpretation of the more-than-200-year-old text of the Second Amendment because the statistics are on their side.

According to the FBI Uniform Crime Reports for 2001, the most recent year with complete data available online, criminals used firearms in the commission of a murder, robbery or aggravated assault in about 376,000 of the 1.4 million violent crimes committed. Conversely, research by Florida State University criminology and criminal justice professor Dr. Gary Kleck, shows that firearms are used to stop or prevent crimes in the United States more than two million times a year.

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