Another Perspective

Locating Gun Rights

Guided by a shrewd dissent in Parker v. District of Columbia, the Supreme Court could decide the Second Amendment doesn't relegate rights to a non-state.

By 3.13.07

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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.

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About the Author
Robert VerBruggen is an associate editor at National Review. You can follow his writing here.