The U.S. Supreme Court looked up the other day, saw a gun control case coming and ducked. The immediate consequence is that J.D. Farmer Jr. of Smyrna, Ga., cannot keep his machine gun.
Now, this is not a consequence that is likely to break many hearts, but the constitutional questions that gave rise to Farmer vs. Higgins have abiding interest. It would be useful to have a definitive statement from the high court on exactly what the Second Amendment means. This case offered an excellent opportunity, but in accordance with its policy of pusillanimous prudence, the court refused to hear it.The circumstances may be quickly stated. In 1986 Congress amended the Gun Control Act of 1968. One change made it unlawful for anyone to possess a machine gun without the consent of the Bureau of Alcohol, Tobacco and Firearms.
Farmer applied for permission to own and register a machine gun. Stephen E. Higgins, director of the bureau, turned him down. Farmer then brought suit in U.S. District Court, where he won his case. The government appealed to the 11th Circuit, where he lost it. A few weeks ago the Supreme Court declined to review the matter, so the decision of the 11th Circuit stands. Farmer is free to collect stamps, antique cars, matchbooks or old masters but not machine guns. Into every life some rain must fall.
The Second Amendment is a marvel of ambiguity. It says, "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."
The Supreme Court has noticed the Second Amendment only nine times in 200 years. Eight of the cases are of little interest. (Four, decided late in the 19th century, held that the amendment restricts Congress but not the states. Four others, of more recent vintage, upheld a federal law prohibiting felons from owning guns.)
The one remaining case dates from 1938, when Jack Miller and Frank Layton were convicted of violating the National Firearms Act of 1934. They were charged with transporting a sawed-off double-barreled shotgun from Claremore, Okla., to Siloam Springs, Ark.
In an opinion by Justice James McRey-nolds, the court looked at sawed-off shotguns and looked at the concept of a well-regulated militia and held that the one had nothing to do with the other:
"In the absence of any evidence tending to show that possession or use of a `shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an in-stru-ment."
The Second Amendment, said McReynolds, "must be interpreted and applied with that end in view." A sawed-off shotgun is not part of "ordinary military equipment." Its use could not contribute to the security of a free state.
Johnny Killian, editor of the government's officially annotated Constitution, comments that the Miller opinion "does little more than cast a faint degree of illumination" on the large question of gun ownership generally. Professor A.E. Dick Howard of the University of Virginia, one of the nation's foremost constitutional scholars, says Miller raises the "disconcerting possibility" that the private ownership of truly military weapons is protected by the Second Amendment.
Which brings us back to J.D. Farmer Jr., the gun collector who wanted to keep, if not to bear, his very own machine gun. It would appear indisputable that machine guns are indeed relevant to a "well-regulated militia." Our armed forces were using them in the Persian Gulf.
A persuasive argument may be made that such weapons are the lineal descendants of colonial arms. By an act of 1785, all free males in Virginia had to own "a good clean musket carrying an ounce ball, and three feet eight inches long in the barrel." A man could be sent to jail if he didn't keep and bear arms.
Well, those days may be gone forever, but the Second Amendment lingers on. In terms of today's efforts at gun control, what does the amendment mean? No one really knows, and the high court won't say.