Posted on 3/19/2007, 7:09:43 PM by neverdem
When Blackstone described the right to carry arms as part of the natural right of "self-preservation," he could not have envisioned the situation of a professional woman coming home late to an empty Washington, D.C., apartment. Yet in a city declared by its police chief to be in a state of "crime emergency" last summer, where being followed home from Metro stops is a not uncommon experience for female residents, where, according to FBI statistics, 3,577 burglaries were reported in 2005, and where even nonlethal Taser guns are a prohibited means of self-defense, Blackstone's description rings powerfully true.
It is not surprising, then, that the most recent shots in the jurisprudential struggle over the Second Amendment have been fired here in "gun-free" Washington. On March 9, a panel of the U.S. Court of Appeals for the District of Columbia Circuit decided Parker v. District of Columbia, in which the plaintiffs challenged three D.C. gun laws that together effectively prohibit private ownership of handguns in the nation's capital. The first disputed provision bars registration of handguns. The second forbids "carrying" a pistol, even inside one's home. The third requires that pistols be kept unloaded and disassembled, or bound by a trigger lock at all times. All prevent an individual from lawfully defending his or her home against an intruder. In an opinion by Senior Circuit Judge Laurence Silberman, over a dissent by Judge Karen Henderson, the panel struck down the provisions as violating the Second Amendment.
The text of that amendment sounds straightforward enough: "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." Yet courts and constitutional scholars have filled forests' worth of paper arguing over its meaning. "Collective rights" theorists claim the amendment protects only states' rights to maintain militias without federal interference. "Individual rights" theorists argue that the amendment protects a private citizen's right to use weapons for lawful purposes such as self-defense.
In sharp contrast to the bloated Supreme Court jurisprudence growing out of most other amendments, though, the High Court has been nearly silent on the proper interpretation of the Second. The Court's most thorough construction of the provision, in the 1939 case United States v. Miller, did not turn on whether the amendment applies to individual citizens, but on whether a short- barreled shotgun qualifies as a protected "arm."
In the absence of Supreme Court guidance, a majority of federal appellate courts have adopted the collective rights model. Most recently, in the 2002 Silveira case, the Ninth Circuit held that "bear arms" refers only to carrying weapons in military service and, thus, the Second Amendment protects only collective rights. Prior to the recent Parker decision, the only federal circuit adopting the individual rights approach was the Fifth Circuit in United States v. Emerson in 2001 (a case discussed by Nelson Lund in this magazine before the decision came down, "Taking the Second Amendment Seriously," July 24, 2000). State appellate courts are likewise divided: Courts in seven states have held for an individual rights interpretation (Colorado, Kentucky, Louisiana, Montana, Tennessee, Washington, and West Virginia), while ten others have adopted the collective rights theory (Massachusetts, Minnesota, Nevada, New Jersey, New York, North Carolina, Ohio, Texas, Utah, and Illinois).
And the debate has extended beyond the bench. In a 2001 memorandum opinion from Attorney General John Ashcroft, the Department of Justice officially adopted the individual rights understanding. Under prior administrations, the department has gone both ways. Professor Laurence Tribe's most recent constitutional law treatise supports the individual rights view, as do, as the Parker court notes, "the great legal treatises of the nineteenth century." Perhaps the most eloquent proponent of the individual rights view was Ninth Circuit Judge Alex Kozinski, in dissent from his court's denial of rehearing in Silveira:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. . . . When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases--or even the white spaces between lines of constitutional text. But . . . when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
In Parker, the D.C. panel held that the language of the Second Amendment plainly protects an individual right. First, as the court notes, "the most important word is the one the drafters chose to describe the holders of the right--'the People.'" No one would, for example, seriously argue that the First Amendment's protection of free speech (or the Fourth Amendment's prohibition of unreasonable searches and seizures) does not protect "the People," as individuals, against government encroachments. And the Constitution assumes that, like the right to free speech, the right to bear arms existed before the formation of government; the amendment does not grant the right, but merely states that it is not to be infringed. This right flowed, during the constitutional project of young America, from the right to "have Arms" in England's 1689 Bill of Rights, which described that right as belonging to "Subjects."
The court points out the word "bear," as defined in dictionaries and used in the 1787 Pennsylvania ratifying convention, encompasses a wide range of meanings, most prominently "to carry," and is not restricted to the specific military meaning asserted by the District of Columbia to support its collective rights view. The court also finds that "'keep' is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use."
Finally, the court concludes that the Second Amendment's endorsement of a well-armed militia "is narrower than the guarantee of an individual right to keep and bear arms" and that "the amendment does not protect 'the right of militiamen to keep and bear arms,' but rather 'the right of the people.'" As the court observes, "if the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did."
Beyond its importance for D.C. citizens, Parker may encourage the Supreme Court, at last, to articulate a unified Second Amendment jurisprudence after two centuries of uncertainty. Should the matter reach the High Court, the split between circuits makes it more likely the Court would agree to hear the case. Given the current makeup of the Court, many in the individual rights camp certainly hope it will.
In his book A Matter of Interpretation, Justice Antonin Scalia seems to support the individual rights model, and Justice Clarence Thomas has observed, in a concurring opinion, "a growing body of scholarly commentary indicates that the 'right to keep and bear arms' is, as the amendment's text suggests, a personal right." During his Senate confirmation hearing, however, Chief Justice John Roberts, though he acknowledged the "open issue" of the Second Amendment, declined to express an opinion because of the conflict between circuits and his belief that the Supreme Court would eventually decide the matter. As a Third Circuit judge, Justice Samuel Alito, dissenting in the 1996 Rybar case, argued that the federal law criminalizing machine gun possession was unconstitutional, though he cited the Commerce Clause, not the Second Amendment. The positions of the other justices also remain unclear.
Regardless, the media attention on a Second Amendment Supreme Court case could make gun laws a centerpiece in the upcoming presidential election, especially if a vacancy on the Court occurs during the campaign. Contenders may have to do more this cycle than don fatigues and go duck hunting to placate voters who care about their right to self-defense.
And, as a look at the circumstances of the Parker plaintiffs shows, that group of voters is more diverse than commonly thought. Plaintiff Shelly Parker is a resident of a high-crime D.C. neighborhood who has been threatened by drug dealers for "trying to make her neighborhood a better place to live." Plaintiff Dick Anthony Heller is a police officer, also living in a dangerous neighborhood and, thus, a target for retributive violence when off duty and unarmed. Plaintiff Tom G. Palmer is a gay man who was once assaulted for his sexual orientation and able to ward off his attackers with a handgun. In their variety, these plaintiffs exemplify why the right to self-defense is, as the Framers recognized through the plain language of the Second Amendment, a foundation upon which the other rights we enjoy rest.
Erin Sheley is a writer and attorney in Washington, D.C.
Rudy must not've been on the circulation list.
Never elect a gun grabber like Giuliani.
Never vote for anyone that doesn't believe responsible, law abiding people have a right to defend themselves.
If the Supreme Court had taken on the case a few years ago, I have no question that it would be decided 5-4 against our intrepretation. I hope it is different now, but I would feel better if we could get another leftwinger replaced.
What Blackstone said:
"This may be considered as the true palladium of liberty. . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
If the SC ever rules people do not have a right to defend themselves, I hope that is the point people finally decide enough is enough.
Thanks for the quote!
In a nutshell and bears repeating.
Its a very difficult concept for the left. They believe everything is issued by Washington bow wows.
That's a good point. IIRC, pre 1986 machineguns have appreciated so much in value that some folks use them as vehicles for investing.
That's a good point. IIRC, pre 1986 machineguns have appreciated so much in value that some folks use them as vehicles for investing.
Since the President can and often does fereralize the States national Guard, then I guess this argument is baseless....naw, it doesn't matter.
Eisenhower fedralized the Arkansas National Guard when he integrated the Little Rock schools, is one example.
Incredibly, Ginsburg is apparently on record stating that the Second Amendment protects a right considerably broader than merely state-controlled, organized militias (e.g. the National Guard).
That will be the beginning of the Second Civil War, and this time, WE have the guns...
Never vote for anyone that doesn't believe responsible, law abiding people are responsible and law abiding.
We note that the Ninth Circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it does not provide an individual right, and then, and only then, concluding that the plaintiff lacked standing to challenge a California statute restricting the possession, use, and transfer of assault weapons. See Silveira v. Lockyer, 312 F.3d 1052, 1066-67 & n.18 (9th Cir. 2003). We think such an approach is doctrinally quite unsound.
Always good to see that happening.
L L
Let's see what we can do to prevent that. But yeah, I've had enough.
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