The United States Supreme Court might be primed to address this question thanks to a recent opinion by the United States Court of Appeals for the District of Columbia Circuit in Washington, DC. Parker v. District of Columbia (Ct. App. Case No. 04-7041 decided March 9, 2007).
In Parker, six residents of Washington, DC sued the District, claiming that the District’s firearms laws violated their rights under the Second Amendment to own and possess a firearm. The law in issue bans firearms from being “carried” without a license (which is almost never granted), and a person could be charged with a crime for illegally “carrying” a firearm if he or she were to simply “carry” a firearm from one room of the house to another. The law further requires that all lawfully owned firearms be kept unloaded at all times and either disassembled or bound with a trigger locking device. Put simply, under the law, practically no one is permitted to have a functioning firearm in his or her home in the District. A lower court judge dismissed the lawsuit and the residents appealed.
On appellate review, the Court of Appeals began with the text of the Second Amendment, which reads: “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.” The Court went on to note that, in the Second Amendment debate, there are basically two camps: the individual rights camp, which believes that the Amendment protects an individual person’s right to possess firearms for individual use; and the collective rights camp, which believes that the Second Amendment protects only the rights of individual state governments to raise and arm their own state militias, which are akin to today’s National Guard. The Court noted a third camp, the sophisticated collective rights camp, which believes that an individual person could, in theory, raise a Second Amendment claim in court, but that the Second Amendment does not give an individual the right to own or possess a firearm for personal use, only civic use.
The Court found that there is no authoritative answer to the question “who is right” the individual rights camp, the collective rights camp, or the sophisticated collective rights camp. The United States Supreme Court has never directly answered this question. The Court’s research into the question revealed that the vast majority of the United States Courts of Appeal that have considered this question (only the Second Circuit has yet to weigh in on this question) have adopted the collective rights model. Only the Fifth Circuit has adopted the individual rights model. The Court pointed out as well that the question has yielded mixed answers from the various state courts that have addressed the question, and that the United States Department of Justice recently released an opinion that adopts the individual rights theory.
The Court thus turned to the text of the Second Amendment, the history of its enactment, as well as the leading US Supreme Court case on the Second Amendment, United States v. Miller, 307 U.S. 174 (1939). The Court found that, although the Miller case did not directly answer the question of whether the Second Amendment protects an individual’s right to own a firearm, the High Court’s opinion in Miller, “implicitly assumes that interpretation.”
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