In District of Columbia v. Heller , the U.S. Court of Appeals for the District of Columbia became the first federal appellate court to find a gun-control law violative of the Second Amendment. (Later today, the U.S. Supreme Court will be deciding whether to review this case on appeal.)
Our nation's highest court hasn't addressed the Second Amendment directly since United States v. Miller , a 1939 decision whose ambiguity allowed it to be claimed as a victory by both sides to the debate.
Second Amendment advocates typically fall within one of two camps: the "collective rights" proponents or the "individual rights" theorists. The former view the Second Amendment as limited to military affairs and view it guaranteeing a civic, rather than an individual, right. The latter are of the opinion that the Constitution grants a right to each person, independent of any duty to serve in a state militia.
In 2001, the Fifth Circuit Court of Appeals became the first to hold that the Second Amendment bestows a right on individuals. That decision opened the door to Heller , which was brought in response to an ordinance that had been on the books in D.C. since 1976.
The law banned handguns and required rifles and shotguns to be disassembled or to have trigger locks. Originally captioned Parker v. District of Columbia, five out of six of the plaintiffs were dismissed for lack of standing, leaving Heller, an armed security guard who, unlike the others, had applied for. and been denied, a registration certificate to own a handgun.
Though the Second Amendment [1] clocks in at a terse 27 words, it supplied the fodder for a 75-page opinion that reads like a catalog of the arcane and obscure, and includes citations to England's Bill of Rights of 1869 and a dusty tome of 18th century vintage entitled Desultory Reflections on Police, by William Blizzard.
Luckily, the opinion can be condensed down to a few key points.
First, there was much ado about the Second Amendment's prefatory language. According to the D.C. Court of Appeals, the use of the definite article, "the," before the word "right," did not confer a new right, it simply acknowledged and affirmed a pre-existing one.
The majority believed a right to bear arms for hunting and protection of hearth and home would have been a foregone conclusion in the framers' time. And their use of the words "the people" drives that point home since, throughout the Bill of Rights, those identical words are used to denote an individual right, and not that of an amorphous collective.
Had the framers' intended to carve out a collective right, they demonstrated themselves capable of doing so in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." [Emphasis added]
According to the D.C. Court of Appeals, "it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison)" would not have employed "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."
Further, the Second Amendment would have been an "extremely silly exercise" if the survival of the militias it sought to protect were manned by volunteers who did not have, and could not bring, their own private arms.
The dissent harangued the majority's decision as "at best an advisory treatise on this long-running debate." The dissent looks to Miller as the seminal case on the issue and finds that it resolves it, decisively, in favor of the "collective rights" camp and, until the U.S. Supreme Court revisits the matter, the Circuit Court was obligated to follow that lead.
Will the United States Supreme Court start off this holiday season with a bang?
(We're hoping they'll take a shot at it.)
To download a copy of the D.C. Court of Appeals's decision, please use this link: District of Columbia v. Heller
[1] 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.