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    Holding Court with Joan Biskupic

    Post Supreme Court reporter Joan Biskupic. (The Post)

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    Friday, August 27, 1999

    While the Supreme Court is in recess, "Holding Court" has been taking on specific legal topics each week, from firearms law to gay rights. This week offers a sequel to some of this summer's hottest legal controversies, as "Holding Court" invites your questions on guns and the Second Amendment; religion law; and gay rights.


    Biskupic answers your questions on the Supreme Court and legal affairs Fridays at 10 a.m. EDT. The transcript follows:

    Washington, D.C.: It is my understanding that the Second Amendment was brought about during a time of war so that American people may protect their homes, land and family from being invaded by opposing forces. Is this correct?

    Joan Biskupic: Thanks for the question. And welcome all. This week we're revisiting three topics that "Holding Court" took on earlier this summer and generated an overflow of questions.

    Guns, religion and gay rights. We'll answer a some of the most frequently asked questions from the past weeks but we mostly want to take your new questions. So fire away.

    .... And to answer this first question, the Second Amendment was adopted with the first ten amendments (Bill of Rights) and ratified in 1791, about eight years after the Revolutionary War had ended but while national security fears, as well as the potential for an oppressive government, were still strong. So, your point is well taken. And just for the record, the amendment 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." Not the easiest language to follow, is it?

    Gaithersburg, Md.: This notion of separation of church and state seems to run contrary to the Christian-focused society we live in. Students go on break for Christmas vacation, while elementary, junior high and high school decorate their halls with Christmas trees and decorations. Doesn't this run contrary to the notion of separation?

    Joan Biskupic: I get your point. But the key, for the courts at least, is whether it looks like the public schools, or any government entity, is somehow helping out a particular religion. "Christmas" vacation is such a part of American culture that the schools arguably aren't telling kids they should be Christians, as opposed to Jews, for example.

    Oregon: I would like to know more about the Religious Restoration Act and how it will affect small "minority" religions, and also, I heard some force would/can be used to enforce this act, as well as the ability to buy and sell to people who don't comply, as well as incarceration. I would also like to know how I can get a complete copy of it. Also I heard that President Clinton signed it into affect this past January 1999. Is this accurate? Thanks.

    Joan Biskupic: You're asking about a couple of different things here... The "Religious Freedom Restoration Act" was already struck down, in 1997. The new "Religious Liberty Protection Act" is basically the same proposal, although it's tied to different congressional powers in an attempt to survive the Supreme Court. And it's still pending in Congress. If it were to become law, the act would stop the government from enforcing generally neutral laws that have the effect of restricting an individual's religious practice – unless the government has a compelling interest and used the least restrictive means to enforce it. (Now, how can you get it? There's a bill distribution center on Capitol Hill, but I'm not sure how you get a copy by mail. I'm sure it's on the Internet somewhere. Why don't you start with the Senate Judiciary Committee or Sen. Orrin Hatch's office.)

    Finally, you mentioned prisons and there are still a lot of questions about whether the proposal, if it were to become law, would let certain believers protest various prison practices, for example, relating to food, clothing, prayer practices. You can find information on contacting Sen. Hatch on his profile in's Congressional Guide.

    Chicago, Ill.: I guess I am having a lot of trouble with the "gay rights" issue. I do not think that people who are gay/lesbian, or minorities for that matter, should have any more rights than any one else. I know the rhetoric that a gay rights advocate would state to me on this issue. Do you see a trend in the court on not allowing certain groups to have special rights?

    Joan Biskupic: You've hit on a major point of contention in the rhetoric of the gay rights debate: are we talking about "special rights" or merely "equal rights." Advocates say that all they are seeking are policies that stop gay men and lesbians from discrimination because of their sexual orientation. Critics of such policies say they give gay people a "preference" or special status that other groups don't get.

    When the Supreme Court looked at the issue in 1996, it didn't treat the notion of anti-discrimination policies as special protection. The justices said that an amendment to the Colorado state constitution prohibiting cities from passing ordinances protecting homosexuals from bias violated the federal Constitution's guarantee of equal protection.

    Fairfax, Va.: Back to the discussion on gun control...

    Given that title 10 of the U.S. Code makes every person between the ages of 15-45 or so members of the unorganized militia, requires all persons in that range to keep military-style weapons in their homes for use if the unorganized militia is called to duty (last time was WW II) and specifically references the National Guard and state military units as separate from the unorganized militia, how can the Second Amendment be about anything other than the personal possession of firearms?

    Joan Biskupic: I'm not familiar with Title 10 as you've stated it. ... But the majority of federal courts that have interpreted the Second Amendment say it does not guarantee the personal possession of firearms.

    Richmond, Va.: Referring to gun rights... Will the restrictions on gun ownership make it easier for lawmakers to restrict other rights guaranteed by the bill of rights? It seems to me that if guns go, freedom of speech and religion and the right to due process will soon follow.

    Joan Biskupic: This is an argument that I hear often when I write about the Second Amendment. But I have to say that the logic of it has never impressed the courts.

    Washington, D.C.: In your understanding, did the founders intend the Second Amendment to be an absolute that did encompass individuals, or was it designed to address the issues of tyranny, search and seizure and the need for groups to protect the liberty of a newly created country? Isn't there room for this idea to evolve?

    Joan Biskupic: There is so much controversy on the topic and not much definitiveness from the courts, so, yes, there is some room for the idea to evolve. But as I mentioned when "Holding Court" first took on this topic, the federal courts have mostly asserted that the Second Amendment does not ensure a personal right to own arms. Former Chief Justice Warren Burger once wrote (in an essay in Parade magazine, in 1990) that the Second Amendment grew out of the founders' belief that a state military force was necessary to protect the security of the state. The "militia" referred to the in the amendment was likened to a state national guard. HOWEVER, as you probably know, there are those who insist the "militia" embodies all the people.

    Amsterdam, The Netherlands: Former Chief Justice Burger once said that, in the contrary to what many people think, it is a myth that the Second Amendment protects a personal right to bear arms. Where does that myth come from? Why do lots of us all think the amendment is about a personal right?

    Joan Biskupic: Hello to The Netherlands. And thanks for the question. I think the "myth," as Burger described it, flows in part from the rhetoric of the debate. I remember after the Oklahoma City bombing, President Clinton himself said that he would push for more gun control, but without encroaching on the "right to bear arms." That phrase is used over and over again. The language of the amendment refers to "the right of the people to keep and bear arms," but it is preceded by two separate clauses (caveats, if you will) that judges have relied on to find that, no, there is no personal right to bear arms.

    Laytonsville, Md.: Most of the litigation in the lower state and federal courts on firearms seems to involve peripheral issues like manufacturers' liability. Has the Supreme Court had cases that involved specifically interpreting what the Second Amendment really means?

    Joan Biskupic: Most of the action has been in the lower courts, and, as I've mentioned, the widespread view is that the amendment guarantees a state's right to an organized, armed militia. The last time the Supreme Court looked directly as the question you pose was 1939. It ruled that a man charged with carrying a sawed-off shotgun across state lines, breaking a 1934 firearms law, could not claim an individual right of ownership. ... And I should note that the premise of your question is right; we're seeing a lot more action on manufacturers' liability, spurred in part by the watershed verdict in Brooklyn earlier this year holding gun makers liable for criminal use of their weapons.

    Dallas, Tex.: I believe there is a federal law, with stiff penalties for carrying a gun on public school property. On average about 500 guns are confiscated from people in the Dallas area a year. What number end up being prosecuted? Does this hold up for the rest of the nation?

    Joan Biskupic: Five hundred guns confiscated at Dallas schools each year? I don't know about this, or what number end up being prosecuted there or nationwide. I've heard reports about guns increasingly being found in schools across the country – as well as reports that when the doors open this fall, many more schools will have metal detectors ready. Distressing, isn't it?

    McLean, Va.: Do you think the military's don't-ask-don't-tell policy really made a difference? I was in the military when it became official, and my observation was that little changed – that had been the unofficial policy for years.

    Joan Biskupic: You have first-hand experience. And actually I'm reading more and more that the reality is that things aren't much different.

    Dublin, Ohio: What is the difference between the Engel v. Vitale case and the Abington School District v. Schempp case? The full texts of Engel v. Vitale and Abington School District v. Schempp are available on the FindLaw Web site.

    Joan Biskupic: All right, another church-state question. The Engel case was decided in 1962. The Supreme Court said public schools couldn't force students to recite a prayer at the beginning of the school day. It was the first big decision holding school prayer unconstitutional and it basically started the controversy that continues today. Note the fury over the Kansas Board of Education policy to cut evolution from its science curriculum – as a kind of retribution for the court's prohibition on teaching creationism (stated explicitly in a 1987 ruling).

    The Abington case came the year after Engel, in 1963. It reaffirmed that decision by striking down state requirements for the recitation of the Lord's Prayer and Bible readings.

    Washington, D.C.: In terms of grounds for suit and the way cases are framed, is there a specific approach that seems to be succeeding over others in gay rights cases? For example, employment or housing discrimination vs. sexual harassment or military policy?

    Joan Biskupic: Back to gay rights. (All three of these topics, guns, gays and religion, are running neck-and-neck today.) Generally, the more successful cases have been on family rights and so-called "domestic partner" concerns. For example, courts have been upholding adoptions and visitation rights by gay men and lesbians and requiring certain insurance and other employment benefits for homosexual couples when they are given to heterosexual couples. The military cases, on the other hand, have favored the government and its policies against gay troops.

    Sterling, Va.: Do you think that the recent photo ID and [gun] training proposal from Al Gore would pass a review from the U.S. Supreme Court?

    Joan Biskupic: Whoa. I'm going to have to take a pass at this one. I'm not sure what Gore's proposal covers. Do the folks at washingtonpost. com have any articles to put up on this one? There is a story about Vice President Gore and the gun proposal: Gore Unveils an Anti-Crime Initiative (July 13, 1999). You'll find all of The Post's coverage on Gore and all of the other presidential hopefuls on our White House 2000 Key Stories page.

    Vancouver, Wash.: By definition, a militia is a body of armed men. Why would the framers of the Constitution waste their time and parchment stating that a body of armed men has the right to be armed? Isn't that redundant?

    Joan Biskupic: Nothing is simple with this convoluted amendment. You argue that the references to "militia" and "arms" are redundant. Others argue that they reinforce each other and the notion that the amendment guarantees a right only for a state-sponsored, organized group like the National Guard.

    Chevy Chase, Md.: What constitutional basis is there for claiming those who engage is a particular type of sexual act cannot be discriminated against? As a society we have always discriminated against certain behaviors. If the Boy Scouts can't discriminate against homosexuals then should they be able to discriminate against racists?

    Joan Biskupic: This is a difficult question, because you're bringing up lots of related issues, and ones that have had mixed records in the courts. But generally, when you ask about particular "sex acts," gay rights advocates have pointed to privacy guarantees and asked why should it be anyone's business what an individual does in his own bedroom. Equal protection has also been asserted, as advocates challenge the exclusion of individuals based on their sexual orientation. In the recent Boy Scouts case, the New Jersey court relied on a state anti-discrimination law as well as federal "public accommodation" principles that require groups like the Jaycees and Scouts to have broad and open membership.

    Washington, D.C.: Re: "gay rights" vs. "special rights":

    I'd just like to point out to the "special rights" people that anti-discrimination laws – where they exist – protect EVERYONE. This is because they ban discrimination based on sexual orientation (which everyone has, like race, religion, or creed), and do NOT ban discrimination only against gay people. It's a question of adding "sexual orientation" to the already existing list of other characteristics upon which it's illegal to discriminate.

    Ms. Biskupic, although I feel you do a good job reporting on these issues, perhaps you could make more of an effort to make this point. In many cases inaccurate reporting in the media creates this impression of "special rights."

    Joan Biskupic: I'll let you make the point. ... And that will also be the last word. But I want to mention one last thing. Back in 1993, the Supreme Court decided (after some controversy) to make the audio tapes of its courtroom arguments available to the public. Since then, some commercial enterprises have taken advantage of the tapes at the National Archive. (You might have heard some of the great, historic oral arguments on C-SPAN in recent months.) Now a Northwestern University professor who operates a web site about the court has put out a CD of what he's calling the Supreme Court's Greatest Hits. Related to our discussion today, it has the 1986 Bowers v. Hardwick and 1996 Romer v. Evans, the two big gay rights cases, on it. ... That's it for today. Thanks to all for participating. Thanks to everyone who joined us today. Some further information about tapes of Supreme Court oral arguments.

    The Oyez Oyez Oyez Web site features a searchable database of Supreme Court cases, bios of justices and a virtual tour of the Court. You can also get more information about the Supreme Court Greatest Hits CD-ROM.

    In addition, some Post coverage of the original flap in 1993 over the release of oral argument tapes:

    Court Makes Tapes of Arguments Available (Nov. 2, 1993)
    Supreme Court Limits Access By Seller of Tapes (Sept. 24, 1993)
    Marketer of Court Tapes Risks Supreme Censure (Aug. 30, 1993)

    Join us again next Friday at 10 a.m. EDT for "Holding Court."

    © Copyright 1999 The Washington Post Company

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