Opening Argument – A Right to Keep and Bear Arms?

National Journal

The U.S. Court of Appeals for the District of Columbia Circuit issued the biggest gun control decision in decades on March 9, perhaps setting the stage for the biggest Supreme Court gun control decision ever. Rejecting the views of most other courts, Judge Laurence Silberman held for the 2-1 majority, "The Second Amendment protects an individual right to keep and bear arms" — not just to have guns when needed for service in now-defunct state militias. On this basis, the majority struck down the District of Columbia’s uniquely broad ban against having either a pistol or an operational rifle, even at home for self-defense against intruders.

The decision, Parker v. District of Columbia, is right and should be affirmed. And contrary to a widespread myth, confirmation by the justices that Americans have an individual right to keep and bear arms would not invalidate reasonable gun control laws.

To put my own biases on the table: I don’t hunt or own a gun. I support reasonable gun controls but consider the D.C. law unreasonable. I had never fired a pistol until a recent vacation trail ride, when I missed a large target with all six shots. This amused my 19-year-old daughter, who scored five out of six.

Now to the Second Amendment. It 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."

For decades, most courts and legal scholars have treated this as essentially a dead letter. Their reasoning goes like this: The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.

Judge Silberman shreds this conventional wisdom in a 58-page opinion joined by Judge Thomas Griffith. In doing so Silberman builds on the work of a few leading scholars of diverse political persuasions.

"At first blush," Silberman begins, "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.’ "

In addition, the opinion points out, the Framers vested in "the people" the rights protected by the First, Fourth, and Ninth Amendments as well as the Second. Nobody contends that those other provisions protect no individual rights; indeed, "the Bill of Rights was almost entirely a declaration of individual rights," Silberman says. And the Supreme Court said in 1990 that "the people" means the same thing in the Second Amendment as it does in the First, Fourth, and Ninth.

The Founders’ language strikes another "mortal blow to the collective-right theory" in explicitly guaranteeing a right to "keep" arms, as well as to "bear" them, Silberman asserts: " ‘Keep’ is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use."

And while no other Bill of Rights provision includes a preamble clause stating its civic purpose, many state constitutions of that era did begin with prefatory clauses stating "a principle of good government that was narrower than the operative language used to achieve it," Silberman explains.

Similarly, in the Second Amendment context, "preservation of the militia was the right’s most salient political benefit — and thus most appropriate to express in a political document" that was designed to assure "Antifederalist opponents of the 1787 Constitution [that] the militia system would remain robust."

Silberman’s opinion makes a convincing case that the Founders saw the Second Amendment as codifying a natural right to "private use of arms for activities such as hunting and self-defense [against] either private lawlessness or the depredations of a tyrannical government."

Critics, including dissenting D.C. Circuit Judge Karen LeCraft Henderson, have accused Silberman of flouting a 1939 Supreme Court precedent, U.S. v. Miller, which collective-right theorists have long seen as holding, at least implicitly, that there is no individual right to keep or bear arms. But if anything, Miller cuts the other way.

In that case, the justices upheld a federal ban on interstate transportation of short-barreled shotguns. Reasoning that the Second Amendment must be "interpreted and applied" in light of its "obvious purpose" of fostering a "well regulated Militia," the Court held that a sawed-off shotgun was not among the "Arms" appropriate for militia service.

But the Miller Court did not say that there was no individual gun right at all, as the government had urged in its brief. Nor did it note that the two defendants were not affiliated with any state militia. Instead, the justices chose to distinguish sawed-off shotguns from other guns. This seemed to imply that the Second Amendment does protect an individual right to keep and bear guns more akin to the rifles, muskets, and pistols commonly used in (and required by Congress for) late-18th-century militia service.

These were the very kinds of guns that the D.C. law banned altogether (handguns) or allowed only if unloaded and inoperable (rifles and shotguns). Therefore, Judge Silberman ruled, the D.C. law clearly violated the Second Amendment.

At the same time, Silberman said that the Second Amendment right is "subject to the same sort of reasonable restrictions" as are other constitutional rights. Indeed, the Supreme Court itself stated in 1897, "The right of the people to keep and bear arms … is not infringed by laws prohibiting the carrying of concealed weapons." And the Silberman opinion suggests that other reasonable regulations to protect public safety would also be valid, such as requiring registration of guns, conditioning gun ownership on proficiency testing, and prohibiting convicted felons from having guns.

Of course, those who favor a broad federal ban on private possession of pistols, or of all guns, will be thwarted if the Parker decision is allowed to stand by the full, 10-judge D.C. Circuit (which rarely reviews the decisions of its three-judge panels) and affirmed by the Supreme Court.

But, in any event, such a broad federal ban is politically impossible for the foreseeable future. As for state gun control legislation, Parker does not say, and the Supreme Court has not resolved, whether the Second Amendment applies only to the federal government (which ultimately controls the District of Columbia) or to the states, as well.

A question lingers: If the logic underlying the individual-right theory is as compelling as I think it is, why has it for so long been a minority view, rejected by nine federal appeals courts and adopted by only two?

One answer was suggested in a 2003 dissent by Judge Alex Kozinski, of Pasadena, Calif., from a collective-right ruling by the U.S. Court of Appeals for the 9th Circuit:

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that ‘speech, or … the press’ also means the Internet [for First Amendment purposes] and that ‘persons, houses, papers, and effects’ also means public telephone booths [for Fourth Amendment purposes]. When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases…. But … when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

"It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us…. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences."

My March 3 column erred in stating that Justice Sandra Day O’Connor was alone in joining both the 2003 decision to strike down the racial preferences in admissions at the University of Michigan’s undergraduate school and the related 5-4 decision to uphold those at Michigan’s law school. In fact, Justice Stephen Breyer made the same distinction, and the vote in the first case was 6-3, not 5-4. I regret the errors.