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Does the Second Amendment protect an individual’s right to own and possess a firearm?

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.”

In the Miller case, the US government prosecuted two individuals for violating a federal firearms law that prohibited the transportation of sawed-off shotguns. The trial court dismissed the case against the pair, finding that the federal law was contrary to the Second Amendment. The government prosecutors appealed, arguing primarily that the Second Amendment does not protect an individual’s right to possess a firearm for personal use, but only protects possession of a firearm in the context of service in the state militia. The government’s secondary argument was that, even if the Second Amendment protects an individual’s right to possess a firearm, the “Arms” referred to in the Second Amendment relate only to arms that could be used in military service, as opposed to weapons that are used only by criminals. The High Court sidestepped the government’s primary argument, and upheld the federal law on the strength of the government’s secondary argument. The Miller Court pronounced that “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” The Supreme Court further noted that “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

The Court of Appeals found that the Supreme Court’s opinion in Miller does not undercut the conclusion that the Second Amendment protects an individual’s right to possess a firearm for individual use. The Court of Appeals found that the Supreme Court’s opinion in Miller merely says that only firearms that have some rational relationship to the preservation and efficiency of a well-regulated militia are protected by the Second Amendment, and, conversely, those firearms that do not in any way serve that end may properly be prohibited by the government. The Court of Appeals further noted that the Miller Court, in discussing the history of the Second Amendment, noted that “[t]he 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 Court of Appeals found that this language by the US Supreme Court in Miller, supports the individual rights theory vis-à-vis the Second Amendment, prompting the Court to conclude that the “Second Amendment protects an individual right to keep and bear arms” and that “[d]espite 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.” The Court of Appeals did caution that the Second Amendment, like, for instance, the First Amendment, does not provide for an absolute right. For instance, the Court stated that it was not addressing the more complicated question of whether a state, consistent with the Second Amendment, could limit a person’s right to carry a weapon concealed upon the person, or in an automobile. What the Court was ruling, though, was that a wholesale ban on all personal possession of firearms was inconsistent with the Second Amendment.

It is worth noting that one of the judges in the panel of three judges that decided this case filed a dissenting opinion. Although the dissenting judge seemed to express the opinion that the Miller case supports the collective rights theory, finding that “the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States….” the dissenting judge believed that, where the two other judges went wrong was in finding that the Second Amendment applied to Washington, DC at all. The dissenting judge would have ruled that the “character and aim” of the Second Amendment is to permit the individual states to keep a militia to serve as a check against the standing army controlled by the federal government, and that, since Washington, DC is not a state, but is a district under complete federal control, the Second Amendment does not apply to it.

As noted above, the opinion of two of the three judges in this case represents a minority view of the Second Amendment, at least as far as federal appellate courts are concerned. Of all of the federal appellate courts to consider this issue, all but two have found that the collective rights theory applies. (The First, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have adopted the collective rights theory, whereas the DC Circuit and the Fifth Circuit have adopted the individual rights theory, and the Second Circuit has yet to speak on this issue).

In 1997, Justice Clarence Thomas stated that “[p]erhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.'” Printz v. United States, 521 U.S. 898, 939 (1997)(Thomas, J., concurring). This statement notwithstanding, the Supreme Court has denied review of several cases presenting this question, including a case brought in 2002 challenging California’s ban on “assault weapons.” Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), reh’g en banc denied, 328 F.3d 567 (9th Cir. 2003), cert. denied, 540 U.S. 1046 (2003). One wonders whether this case will prompt the Supreme Court to address this question.

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