D.C. just got a little more livable

The folks who would disarm us all and leave us at the mercy of criminals -- and at the mercy of the authorities who are not always much better than the criminals they supposedly oppose -- took a shot to their figurative groins on Friday, March 9. That's the day the United States Court of Appeals for the District of Columbia Circuit ruled that D.C.'s severe restrictions on keeping firearms for self-defense violate the U.S. Constitution, and in the process further reinforced the already strong foundations of the school of thought that holds the Second Amendment to be a guarantee of the individual right to bear arms.

The case of Parker v. District of Columbia (full PDF file available here) was brought by a half-dozen residents of the nation's capital in protest of the city's all-but-explicit ban on owning handguns and its tight controls on long guns that effectively preclude their use for protecting life and property. As the court summarized their argument:

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 plaintiffs lost their case at the district level, but won a rousing victory on their appeal in a decision that reads like an in-depth summary of modern Second Amendment scholarship. The majority on the appeals court effectively dismantled arguments that the Bill of Rights's most controversial provision protects some sort of a vague "collective right" of the states to maintain militias. They pointed out that attorneys for D.C. were essentially arguing that the Second Amendment was no longer a relevant document.

But because the District reads "a well regulated Militia" to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution. 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.

The majority pointed out that, contrary to the District's assertions, the Second Amendment was worded to protect "the people" in the same way as other parts of the Bill of Rights that have long been recognized as shielding individual rights.

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. ...."

"Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity. The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well."

In a nod to the revolutionary origins of the United States, the court's majority acknowledged that the right to bear arms is not just essential, but a fundamental out-growth of the individual right to defend one's self against all threats -- including out-of-control politicians and bureaucrats.

The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they would be obligated to perform for the state. The premise that private arms would be used for self-defense accords with Blackstone’s observation, which had influenced thinking in the American colonies, that the people’s right to arms was auxiliary to the natural right of self-preservation. ... The right of self preservation, in turn, was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government."

But what about that opening clause of the Second Amendment, the problematic and notorious "militia" part of the provision? How can that be reconciled with the "right of the people to keep and bear arms"? Well, the court says it's not as confusing as some people would have us believe; in fact, the amendment's construction isn't all that unusual.

It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it. Volokh, supra, at 801-07. We think the Second Amendment was similarly structured. 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."

So the court winds up its Second Amendment analysis thusly:

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).

The appeals court goes on to consider the laws that triggered the case, and finds that handguns are just the sort of personal arms intended to enjoy the Second Amendment's protection. As they say, "Once it is determined—as we have done—that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."

The judges are careful to state that not all restrictions are barred by the Constitution. In fact, "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." In particular, they allow for bans on concealed weapons, registration requirements, bans on possession of weapons by felons, and laws against carrying weapons when intoxicated.

But the District of Columbia can't outright ban firearms, says the court; nor can it require that they be kept locked and unloaded, in a state useless for self-defense.

Finally, there is the District's requirement under D.C. Code § 7-2507.02 that a registered firearm be kept "unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia.".... Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold
it unconstitutional.

The majority's analysis is impressive, extensive and rather moderate in its conclusions. While fans of gun restrictions are already getting their panties in a bunch over the decision, the court, in the process of voiding D.C.'s draconian laws and recognizing the right to bear arms as an individual right protected by the second Amendment, left the door open for restrictions more extensive than those enforced in most of the United States.

Specifically, the court allowed for registration -- a requirement strongly opposed by liberty-minded people as a dangerous tool to leave in the hands of government officials. Many gun rights activists fear that registration records could be used by the government to persecute gun owners and to round up firearms at some future date.

So the court's decision is remarkable primarily for recognizing what should be obvious to all observers: That the Second Amendment protects individuals, and its guarantees have to be taken seriously by all jurisdictions in the country.

That really is a moderate result, but one likely to go too far for one of the varieties of control freaks that plague our republic.

Which is one reason why this issue is unlikely to be finally settled as a legal matter until the U.S. Supreme Court weighs in on the subject. But it's nice to see things go the right way at the appeals level.