Roguish Lawyer
06-04-2007, 10:24
http://www.cato.org/pubs/policy_report/v29n3/cpr29n3-4.html
D.C.’s Gun Ban Struck Down in Court, Heads to Supreme Court
Thirty-one years ago, the District of Columbia government prohibited residents of the District from possessing handguns. This March, the U.S. District Court of Appeals for the D.C. Circuit ruled inParkerv. District of Columbia that the ban violated the Second Amendment. Robert A. Levy, senior fellow in constitutional studies at the Cato Institute, and lead attorney Alan Gura represented the case’s six plaintiffs who wished to keep handguns in their homes for self-defense. Levy and Gura appeared at a March 22 Cato Policy Forum to discuss their case and what it means for the future of Second Amendment rights.
Robert A. Levy: Today’s talk is not only about the Second Amendment, which is a constitutional issue, but also about gun control, which involves both the Constitution and public policy.
Strictly on policy grounds, there is a compelling argument that Americans deserve an opportunity to defend themselves by possessing suitable firearms. But even if the argument were to cut the other way— even if it could be demonstrated, which it most emphatically cannot, that more gun laws lead to less crime—gun laws are not just about policy. They are about the meaning of the Constitution and, in particular, the militia clause of the Second Amendment.
On March 9 the second most important court in the country ruled in Parker v. District of Columbia that the Constitution forecloses an outright ban on handguns, as we have in Washington, D.C. That means, if voters decide that such an outright ban is required for public safety, the way to go about it is to change the Constitution. We cannot simply ignore the constitutional provision and act as though the document did not exist.
Parker addressed a question that has divided Second Amendment scholars for decades: does the right to keep and bear arms belong to us as individuals, or does the Constitution merely recognize the collective right of the states to arm the members of their militias?
In 1939 the Supreme Court had a golden opportunity to resolve that question. The case was United States v. Miller and the challenged statute required registration of machine guns, sawed-off rifles, sawed-off shotguns, and silencers. Sadly, the Court did little to illuminate, and much to mystify, the meaning of the Second Amendment. The opinion by Justice James Clark McReynolds was riddled with ambiguities. It established no definitive legal principle and offered no useful guidance or analysis to inform any modern Second Amendment deliberation.
Even worse, the Supreme Court provided in the Miller case just enough ammunition for appellate courts across the country to reject the individual rights view of the Second Amendment. As a result of the Court’s abdication in Miller, the law of the land in 47 states, everywhere except Texas, Louisiana, Mississippi, and now Washington, D.C., is that individuals have no redress under the Second Amendment if a state bans the possession and use of firearms for private—that is, nonmilitia— purposes.
Correctly interpreted, the main clause of the Second Amendment, “the right of the people to keep and bear Arms, shall not be infringed,” is what defines and secures the Second Amendment right. The subordinate clause, “A well-regulated Militia, being necessary to the security of a free State,” helps explain why we have that right.
So membership in a well-regulated militia is a sufficient, but not a necessary, condition of the exercise of our right to keep and bear arms. Imagine if the Second Amendment said, “A well-educated electorate, being necessary to self-governance in a free state, the right of the people to keep and read books, shall not be infringed.”
Surely no one would suggest that only registered voters—that is, members of the electorate—had a right to read. And yet, that is precisely the effect if the Second Amendment is interpreted to apply only to members of a militia. If the Second Amendment meant what the collectiverights advocates suggest, then the text would have read very differently. It would have said, “A well-regulated militia, being necessary to the security of a free state, the right of the states to arm their militias, shall not be infringed.”
But the Second Amendment, like the First, the Fourth, the Ninth, and the Tenth Amendments, explicitly refers to the right of the people. Consider the placement of the Second Amendment within the Bill of Rights, the part of the Constitution that deals exclusively with the rights of individuals. There can be no doubt that First Amendment rights, like speech and religion, belong to us as individuals. Fourth Amendment protections against unreasonable searches are individual rights. And in the context of the Second Amendment, we secure the right of the people by guaranteeing the right of each person. Predictably, the Court’s focus in the Miller case was on the militia clause. Here is the crucial passage from McReynolds’s opinion in Miller:
In the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun . . . 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.
In other words, said McReynolds, the Second Amendment did not guarantee the defendants a right to transport an unregistered, sawed-off shotgun across state lines. Why? Because the weapon had not been shown to promote the common defense and was not self-evidently a component of ordinary militia equipment.
A proper reading of the Second Amendment should not attempt to link each and every weapon to militia use, except to note that the grand scheme of the amendment was to ensure that persons trained in the use of firearms would be ready for militia service. Because the Miller opinion is so murky, it has to be interpreted narrowly, allowing restrictions on weapons such as machine guns and silencers with slight value to law-abiding citizens and high value to criminals.
Thus, Miller applies to the type of weapon, not to the question whether the Second Amendment protects all individuals, only members of a militia, or just states. Sadly, that is not the manner in which Miller has been cited by trial and appellate courts in 10 of 12 judicial circuits, all except the D.C. Circuit and the Fifth Circuit, both of which found that Miller upheld neither the individual rights model of the Second Amendment nor the collective rights model.
The plaintiffs in Parker v. District of Columbia raised a straightforward constitutional challenge to the city’s draconian gun laws. Parker was filed by Alan Gura, Clark Neily, Gene Healy, and myself on behalf of six law-abiding D.C. residents who want to possess functional firearms to defend themselves where they live and sleep.
So Parker isn’t about machine guns. It’s not about assault weapons. The Parker litigation is simply about a pistol in the home for self-defense.
Off and on over the years, Washington, D.C., has reclaimed its title as the nation’s murder capital. The D.C. government has been totally ineffective at disarming violent criminals. But at the same time, the government has done a superb job of disarming decent and peaceable residents.
No handgun can be registered in the District; even pistols that were registered prior to the ban, initiated in 1976, 31 years ago, cannot be carried from room to room in the home without a license, which is never granted.
Furthermore, all firearms in the home, including rifles and shotguns, have to be unloaded and either disassembled or bound by a trigger lock. So, in effect, no one can possess a functional firearm in his or her residence. And the law applies not only to unfit persons like felons or minors or incompetent people but across the board to ordinary, honest, responsible citizens.
[continued next post]
D.C.’s Gun Ban Struck Down in Court, Heads to Supreme Court
Thirty-one years ago, the District of Columbia government prohibited residents of the District from possessing handguns. This March, the U.S. District Court of Appeals for the D.C. Circuit ruled inParkerv. District of Columbia that the ban violated the Second Amendment. Robert A. Levy, senior fellow in constitutional studies at the Cato Institute, and lead attorney Alan Gura represented the case’s six plaintiffs who wished to keep handguns in their homes for self-defense. Levy and Gura appeared at a March 22 Cato Policy Forum to discuss their case and what it means for the future of Second Amendment rights.
Robert A. Levy: Today’s talk is not only about the Second Amendment, which is a constitutional issue, but also about gun control, which involves both the Constitution and public policy.
Strictly on policy grounds, there is a compelling argument that Americans deserve an opportunity to defend themselves by possessing suitable firearms. But even if the argument were to cut the other way— even if it could be demonstrated, which it most emphatically cannot, that more gun laws lead to less crime—gun laws are not just about policy. They are about the meaning of the Constitution and, in particular, the militia clause of the Second Amendment.
On March 9 the second most important court in the country ruled in Parker v. District of Columbia that the Constitution forecloses an outright ban on handguns, as we have in Washington, D.C. That means, if voters decide that such an outright ban is required for public safety, the way to go about it is to change the Constitution. We cannot simply ignore the constitutional provision and act as though the document did not exist.
Parker addressed a question that has divided Second Amendment scholars for decades: does the right to keep and bear arms belong to us as individuals, or does the Constitution merely recognize the collective right of the states to arm the members of their militias?
In 1939 the Supreme Court had a golden opportunity to resolve that question. The case was United States v. Miller and the challenged statute required registration of machine guns, sawed-off rifles, sawed-off shotguns, and silencers. Sadly, the Court did little to illuminate, and much to mystify, the meaning of the Second Amendment. The opinion by Justice James Clark McReynolds was riddled with ambiguities. It established no definitive legal principle and offered no useful guidance or analysis to inform any modern Second Amendment deliberation.
Even worse, the Supreme Court provided in the Miller case just enough ammunition for appellate courts across the country to reject the individual rights view of the Second Amendment. As a result of the Court’s abdication in Miller, the law of the land in 47 states, everywhere except Texas, Louisiana, Mississippi, and now Washington, D.C., is that individuals have no redress under the Second Amendment if a state bans the possession and use of firearms for private—that is, nonmilitia— purposes.
Correctly interpreted, the main clause of the Second Amendment, “the right of the people to keep and bear Arms, shall not be infringed,” is what defines and secures the Second Amendment right. The subordinate clause, “A well-regulated Militia, being necessary to the security of a free State,” helps explain why we have that right.
So membership in a well-regulated militia is a sufficient, but not a necessary, condition of the exercise of our right to keep and bear arms. Imagine if the Second Amendment said, “A well-educated electorate, being necessary to self-governance in a free state, the right of the people to keep and read books, shall not be infringed.”
Surely no one would suggest that only registered voters—that is, members of the electorate—had a right to read. And yet, that is precisely the effect if the Second Amendment is interpreted to apply only to members of a militia. If the Second Amendment meant what the collectiverights advocates suggest, then the text would have read very differently. It would have said, “A well-regulated militia, being necessary to the security of a free state, the right of the states to arm their militias, shall not be infringed.”
But the Second Amendment, like the First, the Fourth, the Ninth, and the Tenth Amendments, explicitly refers to the right of the people. Consider the placement of the Second Amendment within the Bill of Rights, the part of the Constitution that deals exclusively with the rights of individuals. There can be no doubt that First Amendment rights, like speech and religion, belong to us as individuals. Fourth Amendment protections against unreasonable searches are individual rights. And in the context of the Second Amendment, we secure the right of the people by guaranteeing the right of each person. Predictably, the Court’s focus in the Miller case was on the militia clause. Here is the crucial passage from McReynolds’s opinion in Miller:
In the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun . . . 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.
In other words, said McReynolds, the Second Amendment did not guarantee the defendants a right to transport an unregistered, sawed-off shotgun across state lines. Why? Because the weapon had not been shown to promote the common defense and was not self-evidently a component of ordinary militia equipment.
A proper reading of the Second Amendment should not attempt to link each and every weapon to militia use, except to note that the grand scheme of the amendment was to ensure that persons trained in the use of firearms would be ready for militia service. Because the Miller opinion is so murky, it has to be interpreted narrowly, allowing restrictions on weapons such as machine guns and silencers with slight value to law-abiding citizens and high value to criminals.
Thus, Miller applies to the type of weapon, not to the question whether the Second Amendment protects all individuals, only members of a militia, or just states. Sadly, that is not the manner in which Miller has been cited by trial and appellate courts in 10 of 12 judicial circuits, all except the D.C. Circuit and the Fifth Circuit, both of which found that Miller upheld neither the individual rights model of the Second Amendment nor the collective rights model.
The plaintiffs in Parker v. District of Columbia raised a straightforward constitutional challenge to the city’s draconian gun laws. Parker was filed by Alan Gura, Clark Neily, Gene Healy, and myself on behalf of six law-abiding D.C. residents who want to possess functional firearms to defend themselves where they live and sleep.
So Parker isn’t about machine guns. It’s not about assault weapons. The Parker litigation is simply about a pistol in the home for self-defense.
Off and on over the years, Washington, D.C., has reclaimed its title as the nation’s murder capital. The D.C. government has been totally ineffective at disarming violent criminals. But at the same time, the government has done a superb job of disarming decent and peaceable residents.
No handgun can be registered in the District; even pistols that were registered prior to the ban, initiated in 1976, 31 years ago, cannot be carried from room to room in the home without a license, which is never granted.
Furthermore, all firearms in the home, including rifles and shotguns, have to be unloaded and either disassembled or bound by a trigger lock. So, in effect, no one can possess a functional firearm in his or her residence. And the law applies not only to unfit persons like felons or minors or incompetent people but across the board to ordinary, honest, responsible citizens.
[continued next post]