Supreme Court May Target Second Amendment

The U.S. Supreme Court hasn't decided a Second Amendment case since United States v. Miller in 1939, and even then, it dodged the bullet. The Court didn't decide whether the Amendment protects an individual or a collective right to keep and bear arms.

The Second Amendment 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.”

The Court will lock and load on the Amendment if it grants review in two cases on its docket this term involving Washington, D.C.'s draconian gun laws.

In 1976, D.C. banned all handgun registrations, prohibited handguns already registered from being carried from room to room in the home without a license, and required all firearms in the home, including rifles and shotguns, to be unloaded and either disassembled or bound by a trigger lock.  In effect, the District disarmed its citizenry.

Before the District banned handguns, the murder rate had been declining. Soon after the ban, the rate climbed to the highest of all large U.S. cities. Robert Levy, co-counsel for the six residents, writes in National Review: “During the 31-year life of the D.C. gun ban — with the exception of a few years during which the city's murder rate ranked second or third — there have been more killings per capita in D.C. than in any other major city.”

As Levy correctly observes: “Proponents of gun control are not persuaded by such arguments, or even by empirical studies proving that gun control does not work. Nor are they persuaded by the text of the Second Amendment; the history, purpose, and structure of the Constitution; or the intent of the Framers.”

Unarmed law-abiding citizens vs. heavily armed criminals—guess who's been winning. If D.C. City Council members regulated water the way they “regulate” gun ownership, residents could expect desert-dry water pipes and registration of garden hoses.

In 2006, six residents of the District challenged the laws, and lost. The federal district court granted the city's motion to dismiss “on the grounds that the Second Amendment, at most, protects an individual's right to “bear arms for service in the Militia.” The court conveniently ignored the word “keep” in the Second Amendment.) And, by “Militia,” the court concluded that the Second Amendment referred to an organized military body—such as a National Guard unit.

Last March, however, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court, ruling 2-1 that “the Second Amendment protects an individual right to keep and bear arms,” and striking down the gun laws as unconstitutional. Writing for the court, Judge Laurence H. Silberman held: “[T]he activities protected by the Amendment “are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” Silberman noted the reasonableness of the appellants' claims:

Essentially, the appellants claim a right to possess what they describe as “functional firearms,” by which they mean ones that could be “readily accessible to be used effectively when necessary” for self-defense in the home.

The city council, led by Mayor Adrian Fenty, was outraged and immediately announced its intent to appeal to the Supreme Court.  In addition to the anti-gun brigade, Fenty enjoyed the support of the editorial boards of two newspaper giants.

A Washington Post editorial called the ruling “radical” for giving “a new and dangerous meaning to the Second Amendment … an unconscionable campaign … to broadly reinterpret the Constitution so as to give individuals Second Amendment rights. The New York Times said the court was “interpreting the Second Amendment broadly.”

One reason the Supreme Court may grant review is because the circuit courts are divided on the meaning of the Amendment. Only the Fifth Circuit agrees with the D.C. Circuit that the Amendment is an “individual” right. The other circuits have held that private citizens in the states have no Second Amendment claim when they challenge state and local gun-control ordinances.  The Supreme Court has yet to apply the Amendment uniformly to the states through the Due Process Clause of the 14th Amendment, as it has done with almost all of the Bill of Rights.

If the Supremes don't grant review, the decision by the D.C. Circuit will stand, but it will be a hollow point victory except in the 10 square miles of the nation's crime capital.

Let's hope the Supremes affirm what Judge Silberman rightly recognized: “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.” The right “pre-existed the Constitution like 'the freedom of speech.'” It is, after all, “a natural right to keep and bear arms.”

Jan LaRue, Esq. is a member of the Board of Advisors for the Culture and Media Institute.