Sunday, March 11, 2007


Well, it finally happened. A federal appeals court (District of Columbia Circuit,, issued a precedential ruling (unlike the 5th Circuit's Emerson decision, where the 2nd Amendment talk was dicta) holding that the 2nd Amendment guarantees private ownership rights.

I had always worried that neocon administrations would lead to an ideologically active federal judiciary, and here we see it in full bloom. The decision is bizarre on both ends, both in the majority and the dissent. The majority opinion (this is a three-judge panel) completely misses the historical basis of the 2nd amendment.

Firearms in a pre-Industrial Revolution America were made by hand and were quite expensive--it is doubtful that individual ownership would have been a concern to the framers. For example, individual rights advocates fondly quote Patrick Henry with well-placed ellipses, as he states "the great object is that every man be armed...every one who is able may have a gun." Unfortunately, the excised portion reveals that Henry is referring to the STATE purchasing weapons for militia use rather than Skeeter owning a squirrel rifle: "The great object is that every man be armed--but can the people to afford to pay for double sets of arms? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?"

The description of the "Magazine" at colonial Williamsburg further states that "The night of April 20, 1775, Lieutenant Henry Collins stole toward the capital with a squad of royal marines from the H.M.S. Magdalen anchored in Burwell's Bay on the James River. Their orders, straight from Governor Dunmore, were to empty the arsenal and disable THE MUSKETS stored there. In 1715, the magazine "safeguarded shot, powder, flints, tents, tools, swords, pikes, canteens, cooking utensils, and as many as 3,000 Brown Bess flintlocks--equipment needed for defense against Indians, slave revolts, local riots, and pirate raids"--weapons held collectively for the MILITIA to keep and bear.

The frightening part of the opinion lies in their conclusion that "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." Think about that. No arms may be banned under the 2nd. Historically speaking, as the archives of the militias show, during the colonial period, "arms" included not only rifles and pistols but artillery and ordnance as well. Need a howitzer, anyone?

The dissent is equally bizarre. She doesn't attack the majority for completely botching the notion of "keep and bear"--rather, she seizes on the first clause, the security of a free state notion, and says that the 2nd does not apply to DC because the district is not a state! A rather perverse exercise of the dynamic of federalism there.

First of all, let us note what this opinion does NOT do--it does not have any impact outside the district. First of all, jurisdictionally, it is only binding within that circuit. In addition, as far as persuasive authority goes, gun cases involving the states are decided under the 14th amendment rather than the 2nd.

What it does do, for the first time, is to set up a clear split among the circuits. Perhaps the Supreme Court will address this question once and for all.

Editor's Note: This opinion may also be subject to review by the entire court (known as an en banc review.)


jimbow8 said...

Interesting. I'm not avidly anti-gun, but that is a stupid basis for dissent, imo.

You mention most gun cases being decided by the 14th. How so? The first clause - depriving a person of property?

Peter said...

I'm not rabidly anti-gun either, Jimbow. I am in favor of registration requirements, doing away with easy sales at gun shows and interdicting smuggled weapons, but mainly I object to the intellectual dishonesty by those claiming constitutional "right."

The Bill of Rights applies by its terms ONLY against the federal government. They do not apply against state governments. Things became interesting after the Civil War with the passage of the 14th, which is operative against the states, and its due process clause.

The question became, what is due process? is it just proper procedural law or does it involve a guarantee of substantive rights?

In a series of decisions, the Supreme Court held that the due process guarantee included "fundamental" rights, such as MANY but not all of the Bill of Rights guarantees, as enforceable against the states. So technically, if the state shuts down your newspaper, illegally searches you or interferes with your religion, they have violated the 14th, not the 1st, 4th, etc.

The Supreme Court has NEVER HELD that the 2nd involves a "fundamental right," hence it is not operative against the states.

Tom Paine said...

Look at all the other "rights" in the first ten. NOWHERE is there any expressed intent to allow for the exercise of "rights" outside the bounds of accountability to the civil authority. This decision is completely illogical.

I'm not Ned said...

I can think of several good arguments for either side, but I never would have come up with those!

Very odd indeed.