Appeals Court: Gun Ban Unconstitutional

According to the DC Appeals Court, the District’s gun ban is Unconstitutional [PDF] and the Post has a long article covering the verdict. By a 2-1 verdict, the court ruled that the District’s ban on handguns is unconstitutional. The fight’s far from over, as this will likely spend some quality time being reviewed, then appealed eventually to the United States Supreme Court. The brief itself is available online, and is actually fairly readable, something that definitely surprised me. Here are some of the highlights:

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. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District’s authority per se to require the registration of firearms.

The six parties who filed suit don’t object to registering their guns, or keeping them confined to their domicile for self-defense in the home, they just object to being told which kinds of weapons are appropriate for defense in the home.

According to appellants, the Amendment’s language flat out guarantees an individual right “to keep and bear Arms.” Appellants concede that the prefatory clause expresses a civic purpose, but argue that this purpose, while it may inform the meaning of an ambiguous term like “Arms,” does not qualify the right guaranteed by the operative portion of the Amendment.

That there should be civic purpose for the guns kept is a fascinating argument, and I think it would be a great thought exercise here to discuss what constitutes a civic purpose? Neighborhood Watch? Volunteer Policing (a la Fire department)? This isn’t a blanket excuse to give people for owning a gun.

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.

Shockingly, an outright ban would pass the test, but the singularity of the DC ban, focusing on handguns alone, is what runs them afoul of the DC District. There’s more here, but this is getting long, so I’m headed behind a cut…

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.

This is the crux of the argument from my perspective. Throughout the rest of the BIll of Rights, the Framers were cognizant of the difference between the State and the People and did not use the terms interchangeably or without care. If the People were given the right to bear arms, even only within the scope of being as a part of civic organization, then that right is individual, not conferred to the State.

And finally, the summation:

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.

Well said, Justices. I’m glad to see that bad laws are still capable of being stricken from the books for being against the spirit & letter of the Constitution.

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