Friday, March 09, 2007

The Most Important Gun Rights Court Decision… Ever!

Just like in baseball, there are three touchstones a decision must pass in order to be a home run.

1. It needs to be intellectually defensible.
2. It needs to be convincing.

3. To pass third base, it needs to turn a phrase that will grow into public usage.


Today’s decision by the U. S. Court of Appeals for the District of Columbia spectacularly accomplishes all three. This decision will be the fundamental platform from which will grow future appellate and Supreme Court decisions expanding and solidifying our rights under the second amendment.


This action was filed by six residents of DC, and supported intellectually and financially by the libertarian-leaning CATO institute. One of the six plaintiffs, who are here known as the Appellants, is a DC special police officer who had actually been denied a permit to register his pistol and had therefore suffered the actionable damage of being prevented from keeping a firearm for self-defense.

The majority opinion will stand up to rigorous attack.

It sets out classic, historic, academic and precedentual support of its unequivocal finding that the second amendment defines an individual right to keep and bear pistols and rifles in support of self defense and other lawful uses.


Does the Amendment address individual or collective rights? It tackles the question head-on:

“The provision’s second comma divides the Amendment into two clauses; the first is prefatory, and the second operative. Appellants’ argument is focused on their reading of the Second Amendment’s operative clause. According to appellants, the Amendment’s language flat out guarantees an individual right “to keep and bear Arms.” Appellants concede that the prefatory clause expresses a civic purpose, but argue that this purpose, while it may inform the meaning of an ambiguous term like “Arms,” does not qualify the right guaranteed by the operative portion of the Amendment.”
The other side:
“The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose—to shield the state militias from federal encroachment—and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right.”
The Court took a little license and described the position as:
“In short, we take the District’s position to be that the Second Amendment is a dead letter.”
The Court recognized the breadth of decisions that have sprung from federal courts over the years,
“The District’s argument—as strained as it seems to us—is hardly an isolated view.”
But it also recognized that the weight of the arguments have been changing recently and that the individual right is ascendent,
“And the United States Department of Justice has recently adopted the individual right model.” And, “The great legal treatises of the nineteenth century support the individual right interpretation…”
The majority writers describe themselves as textualists. They want to know what the words say. What is the plain meaning of the written words? They take the Amendment apart into its components.
“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.”
If anything, the meaning of the phrase “the people” is broader today than it was then:
“In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. This proposition is true even though “the people” at the time of the founding was not as inclusive a concept as “the people” today. See Robert E. Shallope, To Keep and Bear Arms in the Early Republic, 16 CONST. COMMENT. 269, 280-81 (1999). To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people,” the Equal Protection Clause of the Fourteenth Amendment is understood to have corrected that initial constitutional shortcoming. The wording of the operative clause also indicates that the right to keep and bear arms was not created by government, but rather preserved by it.”
An incredibly insightful recognition that the rights of individuals are not granted by pieces of paper, governments or other individuals, but predate all those:
Because the right to arms existed prior to the formation of the new government,[.b] see Robertson v. Baldwin, 165 U.S. 275, 280 (1897) (describing the origin of the Bill of Rights in English law), the Second Amendment only guarantees that the right “shall not be infringed.”
Here is one of the more intellectually telling points:
“The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they would be obligated to perform for the state.”
This operates on a springboard of logic: The activities of the militia of that day (and today) were but a subset of all the activities in which an individual might engage. That subset, common defense, is desirable to civilization but even if it didn’t exist, the interest of the individual in the other activities, such as self-defense, would still require that he be allowed to keep and bear arms.

Refreshing from a federal court:
“The right of self preservation, in turn, was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government.”
The Court looked at the context and found no room for a communal or states-rights argument:
“When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment’s inclusion therein strongly indicates that it, too, was intended to protect personal liberty. The collective right advocates ask us to imagine that the First Congress situated a sui generis states’ right among a catalogue of cherished individual liberties without comment.”

“Just as we would read an ambiguous statutory term in light of its context, we should read any supposed ambiguities in the Second Amendment in light of its context. Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity. The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well.”
There is an area of the opinion that won’t get any media play but is likely amongst the most important. The Court watched DC wrestle with the word “keep” and then slashed their arguments to shreds: “Such outlandish views are likely advanced because the plain meaning of “keep” strikes a mortal blow to the collective right theory.” The Court observed that if “keep” and “bear” meant the same thing, the writers of the Bill of Rights would be very poor writers, indeed. Conversely, while lawyers and rulers could debate whether “bear” means “carry physically” or “have ready if called upon,” there really can’t be much room to argue that somehow “keep” doesn’t mean keep.

My favorite line, and the one I predict will be on bumper stickers in the next election:
The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.””
What will be picked up by the general media is that the Court found room to restrict the carrying of arms:
“And as we have noted, the United States Supreme Court has observed that prohibiting the carrying of concealed weapons does not offend the Second Amendment. Robertson, 165 U.S. at 281-82. Similarly, the Court also appears to have held that convicted felons may be deprived of their right to keep and bear arms. See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citing Miller, 307 U.S. at 178). These regulations promote the government’s interest in public safety consistent with our common law tradition. Just as importantly, however, they do not impair the core conduct upon which the right was premised.”
It’s easy to imagine the talking heads wondering whether we’re going to see an epidemic of open carrying. Of course, the opposite could much more easily be true, that governments, recognizing the popularity and efficacy of concealed carry, will go further to restrict open carry while encouraging concealed carry.

Further off, one can foresee classes on firearms safety returning to schools.

Buried in a footnote was the judges recognition of reality in the District:
“Of course, the District’s virtual ban on handgun ownership is not based on any militia purpose. It is justified solely as a measure to protect public safety. As amici point out, and as D.C. judges are well aware, the black market for handguns in the District is so strong that handguns are readily available (probably at little premium) to criminals. It is asserted, therefore, that the D.C. gun control laws irrationally prevent only law abiding citizens from owning handguns. It is unnecessary to consider that point, for we think the D.C. laws impermissibly deny Second Amendment rights.”
The District based its main arguments on two points. First, a ban on some firearms is not a ban on all firearms. The Court gave the argument the attention it deserved:
“The District contends that since it only bans one type of firearm, “residents still have access to hundreds more,” and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determined—as we have done—that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them. See Kerner, 107 S.E. at 225 (“To exclude all pistols . . . is not a regulation, but a prohibition, of . . . ‘arms’ which the people are entitled to bear.”). Indeed, the pistol is the most preferred firearm in the nation to “keep” and use for protection of one’s home and family.”
The second DC point was that because the District is not a State, the second Amendment does not apply within its borders. I understand Glen Reynolds’ point,
“the dissent, on the other hand, looks a bit odd. I'm going to have to think about it a bit more to decide if it's really as flimsy as it seems.”
All in all, I expect that this may be the most exciting appellate decision in my lifetime.

While the anti-gun groups will circle wagons feverishly in order to limit the effect and the applicability, some of the more imaginative pro-gun folks will be working to push the edges out from here. It's reasonable to expect to see "safe passage" litigation, testing whether New York City really has the authority to interrupt and arrest travelers passing through its airports with legal, checked guns, for instance. Or perhaps a suit testing the applicability of the "full faith" clause a carry permit issued by one state to its citizen traveling in another state, similarly to the treatment of drivers' licenses.

A great synopsis and further analysis of the decision is available at The Volokh Conspiracy the founder of which, Eugene Volokh, was cited repeatedly by the Court in its decision.

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