Do All Americans Have the Right to Keep and Bear Arms?

An interesting opinion was rendered yesterday by the U.S. Court of Appeals for the District of Columbia Circuit. In the case Shelly Parker, et al., v. District of Columbia and Adrian M. Fenty, Mayor of the District of Columbia, by at 2-1 majority, the court upheld the right of individuals to keep and bear arms, as guaranteed by the 2nd Amendment to the U.S. Constitution.

For most Americans, this is a no-brainer. However, it has been argued for years and years that the language of the 2nd Amendment reveals that keeping and bearing arms was a precondition to maintaining a local militia. I quote:

“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 District of Columbia argued that the first clause “A well regulated Militia, being necessary to the security of a free State” proclaims the Amendment’s sole purpose was to protect state militias from federal intrusion—and that the second clause is a discussion of military matters and guarantees civic rights, but not an individual right.

Good point. I’ve had that opinion for years and years.

This is a case involving a 1976 District of Columbia law forbidding the ownership of handguns. D.C. residents wanted to own guns for home protection and filed suit against the District of Columbia. On appeal, the case now has an opinion that will affect how the second amendment is interpreted across the country.

The majority opinion is actually a lesson in sentence construction and grammar. If you don’t believe me, read this:

“The provision’s second comma divides the Amendment into two clauses; the first is prefatory, and the second operative. Appellants’ argument is focused on their reading of the Second Amendment’s operative clause. According to appellants, the Amendment’s language flat out guarantees an individual right “to keep and bear Arms.”

But finally, like all specious reasoning the majority relied on definition - what is meant by “the people”. “The people”, they say represents the same idea as found in the term “the people” in the 1st, 2nd 4th 9th and 10th amendments.

“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.” …. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation.”

There you have it. “The people” are individuals so the right to bear arms is an individual right, not one that is a precondition to having a militia.

In her dissenting opinion Judge Karen Henderson just laid it on the line, essentially telling her counterparts, “Look, it’s already been decided by the U.S. Supreme Court”

In an opinion that can only be described as feisty, Judge Henderson agreed with her brethren that higher court opinions on the 2nd Amendment are few and far between. “Notoriously scant” is the term she used.

But there is one. A 1939 case decided by the U.S. Supreme Court which upheld the indictment of men who carried a sawed off shotgun across state lines.

Henderson cites United States v. Miller in which defense argued that the National Firearms Act, outlawing shotgun barrels under 18 inches in length, violated their 2nd Amendment rights. Disagreeing, the Supreme Court opinion put it this way:

“In 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

So here we have a lower court overturning a long-standing Supreme Court opinion.

So can we now all own sawed-off shotguns? M-16s? TOW missiles?

I don’t think the issue is settled or will be settled anytime soon. And really, it won’t be settled until Americans lose that insane belief that it is their God-given right to whack Bambi with an AK-47.