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Appeals Court Overturns D.C. Gun Ban

Posted by simonov on 9 March 2007

A couple weeks ago I declared the Second Amendment to be dead as a doornail. Apparently, I spoke too soon.

Today a Federal appeals court overturned the District of Columbia’s de-facto handgun ban (actually a licensing scheme in which no one is ever issued a license), rejecting the city’s argument that the Second Amendment right to bear arms applied only to militias.

You can read more about it at the Washington Post.

You can also read the appeals court’s decision. It makes for some very interesting reading. For example:

The District claims 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.” Individuals may be able to enforce the Second Amendment right, but only if the law in question “will impair their participation in common defense and law enforcement when called to serve in the militia.” But because the District reads “a well regulated Militia” to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution.

No longer in existence? I guess none of the hotshot lawyers on the District’s pay have ever heard of US Code Title 10, Subtitle A, Part I, Chapter 13, P 311:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

There are some other choice bits in the decision, such as:

Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today—in fact, at oral argument, appellees’ counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter.

Ha! They must have read our blog!

The judges get positively snarky at times:

We are told by the District that the Second Amendment was written in response to fears that the new federal government would disarm the state militias by preventing men from bearing arms while in actual militia service, or by preventing them from keeping arms at home in preparation for such service. Thus the Amendment should be understood to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias, because the Amendment’s exclusive concern was the preservation of those entities. At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a well-regulated militia.”

But the clincher is in the summary, where they cite the often forgotten concept that the Bill of Rights does not grant rights, it identifies a number of specific intrinsic human rights that the Federal government cannot infringe:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects 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.

God bless ‘em!

What does this mean? Well, it’s a victory of sorts for gun rights in DC, but it is only one court decision out of many contradictory ones we have seen over the years, and the District will probably appeal it. And in any case, the District can also take a cue from our Federal government and simply ignore the decision and carry on with their gun ban.

But it should still bring a smile to the face of guntards everywhere.

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