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March 09, 2007

Parker v. District of Columbia

In case you haven't heard, the big news today is that the U.S. Court of Appeals for the D.C. Circuit held that the right to keep and bear arms is an individual right.

I know, it's a shock.

The language of the decision is so out of step with the type of wishy-washy "living document" bullshit theory of Constitutional interpretation I've become resigned to, I want someone to pinch me to make sure I'm not dreaming.

We start by considering the competing claims about the meaning of the Second Amendment’s operative clause: “the right of the people to keep and bear Arms shall not be infringed.” Appellants contend that “the right of the people” clearly contemplates an individual right and that “keep and bear Arms” necessarily implies private use and ownership. The District’s primary argument is that “keep and bear Arms” is best read in a military sense, and, as a consequence, the entire operative clause should be understood as granting only a collective right. The District also argues that “the right of the people” is ambiguous as to whether the right protects civic or private ownership and use of weapons.

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.

The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all — e.g., “the states.” . . . These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights. . . .

. . .

It seems unlikely that the Supreme Court would have lumped these provisions together without comment if it were of the view that the Second Amendment protects only a collective right. The Court’s discussion certainly indicates — if it does not definitively determine — that we should not regard “the people” in the Second Amendment as somehow restricted to a small subset of “the people” meriting protection under the other Amendments’ use of that same term.

In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.

Parker v. District of Columbia at 18-19.

But here's the best part:
The wording of the operative clause also indicates that the right to keep and bear arms was not created by government, but rather preserved by it. . . . Hence, the Amendment acknowledges “the right . . . to keep and bear Arms,” a right that pre-existed the Constitution like “the freedom of speech.” Because the right to arms existed prior to the formation of the new government . . . the Second Amendment only guarantees that the right “shall not be infringed.”

Id at 20-21.

That's just beautiful. Our rights "pre-existed the formation of the new government," because they came from God, not from the government. It's so easy to forget that in this age when the mere mention of the word "God" can label you as some sort of fanatic. But you don't have to believe in God to marvel at the reasoning of the Court. All you need to know is that there's a difference between the government and your rights, and in a free society, government must bow to those rights, which preceded government itself.

"People" means people, people. That's what originalism is all about. First you determine what the Constitution says (not what you wish it said), then you determine if the law in question departs from the Constitution. If it does, then there is a mechanism for changing the Constitution, specified within the Constitution. You don't simply disregard the Founding Document and make up a lie about what it really means.

This decision will make its way to the Supreme Court, and thank George W. Bush, we'll have Roberts and Alito on our side hopefully.

Posted by annika, Mar. 9, 2007 | TrackBack (0)
Rubric: annikapunditry


Also, there can be no such thing as a "collective right" because that implies that governments have rights. Governments have "powers", individuals have rights. And governments have only those powers specifically granted to them by the people. That's the American way.

Posted by: Tuning Spork on Mar. 10, 2007


Posted by: Casca on Mar. 10, 2007

If it goes to the S.Ct., I count two solid votes on our side: Scalia and Thomas. The rest are wild cards. Republican appointee does not equal pro-individual right, e.g., the dissenting judge in Parker, Judge Henderson, is a Bush I appointee.

There is reason to celebrate here, but also reason to worry a little. Alan Gura and Bob Levy still may very well end up with titanic helpings of egg on their faces, and if they do we'll all pay the price for it.

Posted by: Matt on Mar. 11, 2007

Did the decision address the "well-regulated militia" issue? I'll grant that militias also pre-existed the government, and perhaps "well-regulated" meant something different in the 18th century, but I'm just curious.

Posted by: Ontario Emperor on Mar. 11, 2007


I don't know the in's-and-out's of the previous court findings, but someone pointed this out to me:

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

"(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

(Link goes to a Cornell Law School website that lists US laws. The mu.nu spam filter rejected the address, so I had to Tinyurl it)

I think Anni and Law Fairy are better equipped to interpret that than I am, but doesn't that section read as if it's saying that every male citizen between 17 and 45 is technically a member of the militia?

I'm inviting comment on that. I don't know if that's a legit reading of that section or not, but as a layman, that's what it looks like to me. If anyone in the know knows better, though, please feel free to tell me.

Posted by: elmondohummus on Mar. 12, 2007

the opinion does address the militia question, very persuasively, i think

Posted by: annika on Mar. 12, 2007

The term "well regulated" did indeed mean something else at the time the 2nd amendment was written. Popular usage of that term at that time would now be likely written as "well trained" or "well drilled".

Posted by: ghostcat on Mar. 12, 2007


I have a question regarding the Code Pinko protest in front of Pelosi's home. It doesn't exactly strike me as legal. Do you know of any USSC case on this issue? The closest I've found is Carey v. Brown, 447 U.S. 455, 470 (1980), and it doesn't deal directly with the legality of protest in front of the home, simply that the state can place regulations on time, place, etc.

Posted by: Mark on Mar. 13, 2007

I also found Frisby v. Schultz, 487 U.S. 474, which appears to be quite "on point."

Posted by: Mark on Mar. 13, 2007

Erudite discussion of this issue, if not specifically about the case itself can be found here:


Quote from Volokh post linked in the article:

"Incidentally, if the question is whether "militia" in the Second Amendment means just something like the National Guard, that's one thing that the Supreme Court has resolved... (the writings, debates, and laws of the Founding Fathers) show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."

Volokh link

Posted by: ElMondoHummus on Mar. 13, 2007

Well, so much for that request.

Posted by: Mark on Mar. 19, 2007

It's 8. Really.

Posted by: angelamwilson on Mar. 28, 2007

We could not -- would not! -- want to wait.

Posted by: angelamwilson on Mar. 28, 2007