Important DC Circuit Second Amendment Ruling

Ken AshfordConstitution, Gun Control3 Comments

The Second Amendment of the U.S. Constitution reads:

"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."

Grammatically, it’s an awkward sentence, and much has been made of the "well-regulated militia" phrase.

Basically that controvery boils down to this:  Does the presence of the Militia Clause mean that the "right" is an individual right, or a collective right?  In other words, do individuals have a right to carry arms insofar as they are necessary for a Militia, or is it, quite simply, does the right exist for all individuals for any reason?

Remember, when the Second Amendment was ratified, there was no standing army in the United States.  Our young country was defended by homegrown militias — people who fought and defended using their own firearms.

The interpretation of the Second Amendment interpretation has real-world implications.  If it is a collective right, then theoretically, government can ban the use of "arms" to the extent that they are not used for militia (which effectively means the Second Amendment has no weight in present day terms, since we don’t really have militias).  On the other hand, if it is an individual right, then theoretically, government cannot ban the right to own arms at all.  As you might expect, gun control advocates prefer a collective right interpretation; gun enthusiasts prefer an individual right interpretation.

There are powerful arguments to either side.

Collective rights arguments

  • The Second Amendment uses the phrase "the people" — suggesting a collective right — rather than "persons" — which suggests an individual right (see, e.g., Fifth Amendment)
  • If the Framers intended the right to inure to individuals, the Militia Clause would have been left out altogether.  In other words, the Second Amendment would read something like: " the right of persons to keep and bear Arms shall not be infringed."
  • "Bear arms" is a distinctly military phrase (and was back in the 18th century), suggesting that the Framers were, like the Military Clauses suggests, thinking about the right pertaining only to the necessity of a Militia, and not "individual" rights.

Individual rights arguments

  • State constitutions of the day, which were the boilerplate patterns for the U.S. constitutions, used similar language, but clearly intended for there to be individual rights, separate and apart from rights relating to a Militia.
  • The Militia Clause does not express a prequisite for allowing citizens to have guns, but it merely states a reason (and not the only one)
  • Most of the other amendments in the Bill of Rights (with the exception of freedom of association and freedom of the press) inure to the benefit of the individual.
  • "The right of the people" does not necessarily suggest a collective right (see, e.g., the Tenth Amendment)

The U.S. Supreme Court has never addressed this question directly, save for a 1939 case involving sawed-off shotguns.  There, the Court held that sawed-off shotguns could be banned by the government and it would not violate the Second Amendment, because the Second Amendment’s "obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces."  However, while seeming to support a collective rights view, there was enough "wiggle language" in the court opinion to suggest that the Court was not wholeheartedly rejecting an individual rights point of view.

I’ve studied this at length in the past and, as much as I am a supporter of gun control, I find the legal scholars who say the Second Amendment is an individual right have the better argument.

Today, the DC Circuit issued an opinion on this very subject.  Like a few other circuit courts earlier in the past ten year, they found that the Second Amendment protects an individual right.  The opinion is, I think, very lucid, and address many of the arguments from the "collective rights" perspective.

Someday, probably within the next 5-10 years, the U.S. Supreme Court will come down on this issue (in fact, this case on appeal may be the one).  But in the meantime, the DC Circuit case coming down today is an important one, and one that gun control advocates (like me) are clearly not going to like, even though (in my view) it is the legally correct decision.

Key languge from the opinion below the fold

The heart of the court’s decision, IMHO:

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right — “the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” — indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.

The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all — e.g., “the states.” These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions….

The District points to the singular nature of the Second Amendment’s preamble as an indication that the operative clause must be restricted or conditioned in some way by the prefatory language. However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it.

We think the Second Amendment was similarly structured. The prefatory language announcing the desirability of a well-regulated militia — even bearing in mind the breadth of the concept of a militia [which the court had earlier concluded “was a large segment of the population” rather than just a government-selected National Guard-like subgroup -EV] — is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias….

[I]f 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. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit — and thus the most appropriate to express in a political document.