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I'm not a lawyer. However, I want to understand the recent ruling of the DC Circuit Court of Appeals which appears to set the stage for the Supreme Court striking down handgun laws. The Second Amendment to our Constitution states:
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.
On March 9th, the DC Circuit Court of Appeals, in Parker v. District of Columbia, ruled that the Second Amendment protects the individual's right to bear arms. According to the Brady Center to Prevent Gun Violence, this is the first time that an appeals court rejected a gun law on second amendment grounds. The Supreme Court frequently accepts cert petitions from the DC Circuit, so it is a good possibility that the Supreme Court will hear the case if it is appealed.
The wording of the Second Amendment is unclear. If the emphasis is on "a well regulated militia" then the "right of the people" is tied to the collective right of the government to keep and bear arms. However, if the emphasis is on "the right of the people to keep and bear arms", then this is an individual right. If the latter, how can any gun control laws be legal?
The case was brought by Shelly Parker and five others, who wanted to possess what they called "functional firearms" inside their homes. They wanted to possess loaded handguns to ward off intruders. The District of Columbia argued that the Second Amendment "protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state." In other words, the right to bear arms only extends to citizens performing their duties as part of a well-regulated militia. According to Decision of the Day, a blog about Federal appellate decisions, the DC Circuit is divided.
Writing for the majority, Senior Judge Silberman concludes that the District's reasoning is far off-base. Not only does the majority hold that the Second Amendment is alive and well, but it also rejects the view of most other circuits that the Second Amendment encompasses only collective rights and not individual rights. Instead, in a tour de force of constitutional interpretation, the Court joins the Fifth Circuit (and several state appellate courts) in concluding that the Second Amendment protects an individual's right to own firearms. Under this analysis, the District's efforts at gun control are clearly unconstitutional.
However, Judge Henderson, the minority judge in the 2-1 decision dissented.
She cynically describes the majority's opinion as a superfluous addition to the Second Amendment's "dueling dicta," in which "each side of the debate offering law review articles and obscure historical texts to support an outcome it deems proper." But she thinks the debate is wholly academic in this instance, as the Second Amendment only applies to states, and the District of Columbia is not a state.
The last time the Supreme Court addressed the 2nd Amendment directly was the 1938 decision, United States v. Miller. The decision contains arguments which can support both sides in the gun control debate. Here are the facts, according to the wikipedia article:
Jack Miller and Frank Layton were suspected bank robbers and moonshiners being watched by agents of the Department of the Treasury. On April 18, 1938 Miller and Layton were arrested for transporting an unlicensed sawed-off shotgun (defined as "having a barrel less than eighteen inches in length") across state lines while engaged in interstate commerce, in violation of the NFA.
This was a federal case and was therefore heard by the United States District Court for the Western District of Arkansas. On January 3, 1939, U.S. District Court Judge Heartsill Ragon agreed with the defense's claim that the NFA was intended to restrict the individual ownership and possession of arms, in conflict with the Second Amendment to the United States Constitution.
The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved for the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution -- "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."
Ragon declared that the National Firearms Act of 1934 was therefore unconstitutional and void. U.S. Attorney Clinton R. Barry appealed to the Supreme Court.
The Court accepted the case. The attorneys for the United States asserted that:
- The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
- The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
- The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
- The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.
So there's ammunition, so to speak, for either side of the argument. For the gun lobby, it appears that any military-style weapon, such as a sawed off shotgun, a machine gun, or an assault rifle, must be OK for a private citizen to own. In fact, if the Supreme Court rules this way, handgun ownership may be the least of our problems. For the anti gun lobby, the Court specifically let the National Firearms Act stand, thus allowing both the states and the Federal government to continue to create laws to restrict gun use. If the Court takes the case, the law appears to support either side.