Divided D.C. Circuit Resurrects the Second Amendment
Friday, March 9th by Robert LoblawParker v. District of Columbia, 04-7041 (D.C. Cir., Mar. 9, 2007)
In today’s big constitutional news, a divided panel of the D.C. Circuit strikes down portions of the District of Columbia’s gun control laws. Among other things, the law severely restricts possession of handguns and requires firearms to be kept unloaded and disassembled.
Opponents of the law challenged it as a blatant invasion of their Second Amendment right to bear arms, while the law’s proponents argued that the Second Amendment is essentially a “dead letter.” According to this latter argument, the rights conferred by the Second Amendment are limited by the prefatory phrase “A well-regulated militia, being necessary to the security of a free state . . . ” Because the sort of well-regulated militias envisioned by the founders no longer exist, the Amendment has become meaningless over time. Following this analysis, the District argued that it could ban all firearms outright if it so desired.
The district court bought this argument and dismissed the plaintiffs’ complaint, but a divided D.C. Circuit reverses. 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.
Judge Henderson adds a very interesting dissent. 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.
Update: Commentators are almost universally predicting that this one will go upstairs. It will be interesting to see what the Roberts Court, and particularly its two originalists, will do with this decision. In particular, the majority’s holding depends on its view that the phrase “the right of the people” has a broader meaning today than it did at the time of the founders. I would never have pegged Silberman for a living constitutionalist.
March 9th, 2007 at 2:20 pm
Acutally, according to the Supreme Court, the second amendment and the rest of the Bill of Rights apply only to the federal government (of course that decision is about as far off base as one can get from the wording and the discussions of the Bill of Rights) but that is how the SC decided in 1833 in Barron V Baltimore. The rights enumerated in the Bill of Rights are not rights granted by the Constitution (US v Cruikshank, 1876) but are merely a recognition of rights predating the document. And since only the third amendment, the one most people think was the first, is prefaced as only applying to Congress, the rest, since they do not so signify, must apply to all governments. These rights so recognized are granted to all humans by virtue of birth (or from the Creator), even those humans living in other countries, but are only recognized in the US because the Founding Fathers had the sense to write them down and lay claim to them. The state does not grant them and nothing in them requires the existence of the state to give these rights meaning.
March 9th, 2007 at 5:43 pm
Actually, according to the Supreme Court, almost all of the clauses of all of the amendments of the Bill of Rights apply to the states through the fourteenth amendment. The second amendment is one of the few that it has not so applied.
I think this one will probably be granted cert. and be overturned. This is only the second federal court ruling to recognize an individual right to keep and bear arms and the first to overturn a gun law. All of the Liberal Justices will vote to overturn and the two originalists, if they stick to their originalism, will do so also.
March 9th, 2007 at 5:45 pm
I guess the above should say “almost all of the clauses of the first eight amendments of the Bill of Rights. Obviously, the ninth and tenth wouldn’t need to be incorporated.
March 12th, 2007 at 12:30 pm
I disagree with Mr. Harmon’s first reply and I would AFFIRM the ruling. Of course, he is right about the Fourteenth Amendment, but one must read the Second Amendment and look at the comma separating the “militia” clause and the “the right of the people to bear arms…”. This introduces a new idea and my interpretation of that clause is that it does confer individual rights to own firearms. That said, I also disagree that the courts originalists will vote to overturn (unless they buy Judge Henderson’s dissent, which I believe amounts to interpretive nitpicking), because I think they would read the Second Amendment the same way as I have. I do commend D.C.’s efforts, but you can’t institute an outright ban of the ownership of handguns; additionally the law has been practically useless as anyone who has lived or currently lives in the D.C. area knows.
However, I do agree that this decision will be granted cert after an en banc hearing (my prediction is that the appellate decision will be upheld). Justice Kennedy will be the deciding vote in the Supreme Court decision which will go 5-4 either to uphold the law or vacate the ownership provisions of 7-2502.
March 13th, 2007 at 9:31 am
Bill, you’ve got about 150 years of conlaw to catch up on.
March 13th, 2007 at 11:06 am
Regardless of the SC’s decisions on the 14th, the 14th does not cover any of the Bill of Rights. Nor was it intended to. I refer you to _Government by Judiciay_ by Raoul Berger, his 40 law journal articles rebutting all naysayers, and his second book on the 14th. The Doctrine of INcorporation is not supported textually by the 14th. The 14th only covers privileges and immunities, which are granted by governments. Rights as recognized by the Framers come from the Creator (see DoI) even though most law school graduates have trouble understanding the concept and place privilges and immunities in the same category as rights.
With “selective” incorporation, the SC still has never overturned Barron v Batlimore and has incorporated only portions of the Bill of Rights as binding against the states. Rawle’s work in the 1820s already covered binding of the Bill of Rights on the states, except for the first which was specifically directed only at the federal government. Today, the second, third and seventh, as well as parts of others have not received full incorporation.
I would have to say that the commentors here need to learn to think for themselves and not blanketly accept the claims of the courts. (See Blackstone on that one.) Every decision should be questioned and requestioned. All too often if one looks closely, stare decisis is an out when desired and is ignored when desired.
I ask you to show me in the 14th, other than in section 2 concerning the “right to vote” (which is not a right but a privilege) where rights are considered. Don’t point me to the court decisions, I’ve read most if not all of them and they ar all too often easily disproven. I would ask how many of the commentators have taken the time to go back and read the actual congressional debates and discussions on the 14th to see whether or not the SC has followed the spirit and letter of the law or invented doctrines out of thin air. I also ask why in several decades following the passage of the 14th, the courts did not find incorporation of the Bill or Rights until early in the 20th century? Interestingly, the congress that passed the 14th didn’t even think it included “the right to vote” since they passed the 15th. The interpretation of the 14th is activism and judicial legislation at its finest.
March 19th, 2007 at 11:02 am
[…] 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. […]