The American Bar Association has never been reluctant to urge the Supreme Court to overturn existing precedent, if the precedent at issue offends politically correct sensibilities, especially in the area of the death penalty, but also in cases involving terrorism, racial preferences, civil rights, the First Amendment, and employment law.
But now, it’s suddenly found religion, and is urging the Supreme Court not to enforce the right to keep and bear arms referred to in the Second Amendment in District of Columbia v. Heller. Its argument is based on “stare decisis,” the principle that courts should follow their existing precedent, right or wrong — even though all but one of the precedents the ABA cites that refused to strike down laws restricting the right to bear arms were by lower courts, not the Supreme Court (and the lone Supreme Court decision it cites has been characterized even by gun-control advocates as vague and enigmatic).
The ABA argues that “the right” to “keep and bear arms” referred to in the Second Amendment should not be read as protecting individual rights, because it is preceded by a clause that justifies the right by speaking of the need for a “well-regulated militia,” and some federal courts have relied on that language to hold that the right to bear arms is a “collective right” possessed only by state militia, not an individual right possessed by citizens.
But the idea that a right is limited by the justification given for it has usually been rejected by the courts, consistently so with respect to state constitutional rights ranging from freedom of speech and privacy to the right to bear arms. Such justificatory clauses are common in federal and state constitutions, as a commentator in The New York Times, which supports gun control, concedes, yet the rights they justify are nevertheless typically interpreted as conferring an individual right whose exercise is not limited to the specific justification given for the right.
The New York Times‘ Adam Liptak gives copyright as a classic example. In the Constitution, “Congress is given the power ‘to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’ But the justifying, or purpose, clause there does not seem to limit the operative one. All manner of works, useful and not, receive copyright protection, and in 2003 the Supreme Court allowed Congress to extend copyright terms by 20 years even though that after-the-fact extension was not obviously linked to the clause’s purpose.”
Similarly, some state constitutions justify the right of “the people” to keep and bear arms by citing (as the federal constitution does) the needs of the state “militia,” but those provisions have never been interpreted as protecting only the state militia, but rather have been interpreted as protecting an individual right to bear arms.