Last Friday’s Parker v. District of Columbia ruling
ruling (pdf) was an incredible triumph for gun
rights. The federal D.C. court of appeals ruled that the Second
Amendment protects an individual right to keep and bear arms,
striking down the District’s laws (A) mandating all guns be stored
locked and unloaded and (B) effectively banning handguns. The
Supreme Court will likely hear the case.
Anti-gunners, not surprisingly, weren’t happy. The
Washington Post stated that 1939’s U.S. v. Miller settled the issue: The Second Amendment
protects the states’ right to have militias, not the people’s right
to have guns.
This interpretation is incorrect, as even the dissenting opinion
in Parker — which the Post credited for having
“rightly lambasted” the majority — demonstrates. In
Miller, the Supreme Court declined to overturn two men’s
convictions for transporting a sawed-off shotgun.
It was a bizarre case, to be sure. For starters, no one bothered
showing up to represent Jack Miller and Frank Layton, the folks at
issue. And not surprisingly, the Miller judges struggled
to decide what “militia” meant, and what “the people” meant, in the
Second Amendment.
The amendment reads, “A well regulated militia, being necessary
for the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.”
To make matters more baffling, the court did rule that the
Second Amendment originally preserved gun ownership to protect the
“Militia which the States were expected to maintain.” The amendment
“must be interpreted and applied with that end in view.”
(It also noted, however, that at the time “the Militia comprised
all males physically capable of acting in concert for the common
defense.”)
To the anti-gun crowd, it ends here. Case closed. Collective
right. But what they miss is how the court “interpreted and applied
with that end in view.”
The ruling makes no issue of the fact Miller and Layton were not
militia members. Rather, Miller and Layton failed to prove a
militia might use a sawed-off shotgun:
“In the absence of any evidence tending to show that possession
or use of a ‘shotgun having a barrel of less than eighteen 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 instrument. Certainly it is not within judicial notice that
this weapon is any part of the ordinary military equipment or that
its use could contribute to the common defense.”
It’s the type of gun, not the type of person. The majority
judges in Parker (Laurence Silberman and Thomas Griffith)
took note of this, striking down the handgun ban because “[t]here
can be no question that most handguns” are indeed militia-type
weapons. Did the third judge (Karen LeCraft Henderson) just not
read carefully enough?
No. Actually, Henderson’s dissent follows Miller in
ignoring an individual’s militia membership. She argued:
“[T]he right of the people to keep and bear arms relates to
those Militia whose continued vitality is required to safeguard the
individual States[.] I believe that, under Miller, the
District is inescapably excluded from the Second Amendment because
it is not a State.”
In a footnote, Henderson even noted United States v.
Verdugo-Urquidez, a case that ruled the term “the people”
meant “a class of persons who are part of a national community” and
specifically mentioned the Second Amendment. To this she responded
that as the Tenth Amendment relegates some rights to the States,
and not to the District, so does the Second.
In other words, here it’s the type of location, not the type of
person. D.C. residents can add gun ownership to congressional votes
on the list of rights they’re denied, but it makes no difference
whether they’re in militias.
Even the majority’s opinion, of course, does not bind the
Supreme Court — and all a dissenter can do is suggest. But the
nation’s top judiciary has said little directly about the Second
Amendment, so every line of reasoning is on the table.
(One should note that, while few cases deal directly with the
Second Amendment, many rulings have mentioned the amendment in
passing. As David Kopel et al. show in Supreme Court Gun
Cases, these references have tended toward an individual
rights interpretation.)
Should John Roberts and company adopt Henderson’s reasoning, it
would delay a ruling on the Second Amendment for the nation at
large, and it would deny a population of 580,000 the right to own a gun. But it would not
write the Second Amendment into law as a collective right.
Gun rights supporters have every reason to worry about
Parker’s destiny. Despite two Bush appointees, the ruling
is very much up for grabs. But they can take some comfort in that
all three D.C. appeals judges saw no reason to declare gun rights a
militia-only privilege.
