March 11, 2007
The DC Circuit Court of Appeals issued its opinion in the Parker v. District of Columbia case on March 9th. The Parker litigation was initiated on behalf of a group of Washington DC residents who are seeking to challenge the District’s strict gun control laws, which include an effective ban on handguns purchased after 1976. In briefs before DC’s circuit courts, Shelly Parker and her co-litigants have held that the District’s firearms laws violate their Second Amendment rights to keep and bear arms.
To hear more on the Parker litigation, listen to our radio documentary “Intent: Searching For Meaning In The Constitution.” The program audio can be found here. A television version of the documentary is forthcoming.
THE MAJORITY OPINION
The substance of the majority opinion is as follows:
The DC Circuit Court of Appeals granted standing in the Parker case. In contrast, the same court had refused to review the merits of a previous gun ban case (Seegars v. Gonzales) based on the fact that the appellants in Seegars failed to show actual and specific threats of prosecution for seeking to violate the city’s gun laws. Parker and her co-litigants were granted standing due to the fact that one of them had applied for a handgun permit, and had been denied by the city. Writing for the majority, Judge Laurence Silberman held that the denial of the license constituted an “injury in fact” sufficient to grant standing.
The majority opinion then reviewed the arguments of the two competing interpretations of the Second Amendment – the “individual rights” and the “collective rights” perspectives. The individual rights perspective holds that Second Amendment protects a personal right to possess firearms. The collective rights interpretation sees the Second Amendment as a right of states to keep and maintain their own armed militias. The majority in Parker found the individual rights argument to be the more persuasive of the two, given the construction of the Bill of Rights, the substance of the historical record, and the grammatical structure of the Second Amendment itself:
“At first blush, it seems 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 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. We also note that 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”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.”
In supporting the individual rights view of the Second Amendment, the Parker majority describes “the militia” referenced in that amendment as being largely synonymous with “the people” mentioned in the same. In doing so, the majority references one of the few Supreme Court cases that addresses the scope of the Second Amendment – United States v. Miller – which has been cited by both sides in the Second Amendment debate. The language of Miller describes “the militia” in the following way:
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
The majority opinion then observes that:
“The District claims that Miller’s historical account of the “Militia” supports its position. Yet according to Miller, the militia included “all males physically capable of acting in concert for the common defence” who were “enrolled for military discipline.” And Miller’s expansive definition of the militia—qualitatively different from the District’s concept—is in accord with the second Militia Act of 1792, passed by the Second Congress … Of course, many of the members of the Second Congress were also members of the First, which had drafted the Bill of Rights. But more importantly, they were conversant with the common understanding of both the First Congress and the ratifying state legislatures as to what was meant by “Militia” in the Second Amendment.”
In commenting on the relation of the two clauses of the Second Amendment (the prefatory and operative clauses), the majority states that:
“The prefatory language announcing the desirability of a well-regulated militia—even bearing in mind the breadth of the concept of a militia—is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias. Again, we point out that if the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit—and thus the most appropriate to express in a political document.”
The majority holds that the “arms” referred to by the language of the Second Amendment include a wide (but unspecified) variety of modern day pistols and rifles. However, the majority also notes that while the Constitution protects an individual right to keep and bear such instruments, it does not bar the government from propounding any and all firearm regulations:
“The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment … Indeed, the right to keep and bear arms—which we have explained pre-existed, and therefore was preserved by, the Second Amendment—was subject to restrictions at common law. We take these to be the sort of reasonable regulations contemplated by the drafters of the Second Amendment.”
Despite this qualification, the majority holds that the gun laws at the center of the Parker litigation do not constitute reasonable regulations, and are therefore unconstitutional.
Judge Karen LeCraft Henderson’s dissenting opinion focuses largely on a single issue. Her dissent states that the merits of the Parker case (and thus the meaning of the Second Amendment) should not have been properly reached in a review of the Parker litigation, because:
“… the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it.”
Judge LeCraft Henderson’s opinion looks to Miller for a definition of the Second Amendment:
“With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”
Her dissent notes that Miller’s language stipulates that the prefatory and operative clauses of the Second Amendment must be read in concert with one another:
“By these words, it emphatically declared that the entire Second Amendment—both its “declaration” and its “guarantee”—“must be interpreted and applied” together. Construing its two clauses together so that, as Miller declares, the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States, I believe that, under Miller, the District is inescapably excluded from the Second Amendment because it is not a State. However the Second Amendment right has been subsequently labeled by others—whether collective, individual or a modified version of either—Miller’s label is the only one that matters. And until and unless the Supreme Court revisits Miller, its reading of the Second Amendment is the one we are obliged to follow.”
Judge LeCraft Henderson, reading Miller’s interpretation of the Second Amendment as relevant only to states, then notes that the District of Columbia falls outside of that category:
“To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v. Miller, 307 U.S. at 178, the Second Amendment’s declaration and guarantee that “the right of the people to keep and bear Arms, shall not be infringed” relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.”