The Magazine

Gunfight at D.C. Corral

A victory for the Second Amendment.

Mar 26, 2007, Vol. 12, No. 27 • By ERIN SHELEY
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

When Blackstone described the right to carry arms as part of the natural right of "self-preservation," he could not have envisioned the situation of a professional woman coming home late to an empty Washington, D.C., apartment. Yet in a city declared by its police chief to be in a state of "crime emergency" last summer, where being followed home from Metro stops is a not uncommon experience for female residents, where, according to FBI statistics, 3,577 burglaries were reported in 2005, and where even nonlethal Taser guns are a prohibited means of self-defense, Blackstone's description rings powerfully true.

It is not surprising, then, that the most recent shots in the jurisprudential struggle over the Second Amendment have been fired here in "gun-free" Washington. On March 9, a panel of the U.S. Court of Appeals for the District of Columbia Circuit decided Parker v. District of Columbia, in which the plaintiffs challenged three D.C. gun laws that together effectively prohibit private ownership of handguns in the nation's capital. The first disputed provision bars registration of handguns. The second forbids "carrying" a pistol, even inside one's home. The third requires that pistols be kept unloaded and disassembled, or bound by a trigger lock at all times. All prevent an individual from lawfully defending his or her home against an intruder. In an opinion by Senior Circuit Judge Laurence Silberman, over a dissent by Judge Karen Henderson, the panel struck down the provisions as violating the Second Amendment.

The text of that amendment sounds straightforward enough: "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." Yet courts and constitutional scholars have filled forests' worth of paper arguing over its meaning. "Collective rights" theorists claim the amendment protects only states' rights to maintain militias without federal interference. "Individual rights" theorists argue that the amendment protects a private citizen's right to use weapons for lawful purposes such as self-defense.

In sharp contrast to the bloated Supreme Court jurisprudence growing out of most other amendments, though, the High Court has been nearly silent on the proper interpretation of the Second. The Court's most thorough construction of the provision, in the 1939 case United States v. Miller, did not turn on whether the amendment applies to individual citizens, but on whether a short- barreled shotgun qualifies as a protected "arm."

In the absence of Supreme Court guidance, a majority of federal appellate courts have adopted the collective rights model. Most recently, in the 2002 Silveira case, the Ninth Circuit held that "bear arms" refers only to carrying weapons in military service and, thus, the Second Amendment protects only collective rights. Prior to the recent Parker decision, the only federal circuit adopting the individual rights approach was the Fifth Circuit in United States v. Emerson in 2001 (a case discussed by Nelson Lund in this magazine before the decision came down, "Taking the Second Amendment Seriously," July 24, 2000). State appellate courts are likewise divided: Courts in seven states have held for an individual rights interpretation (Colorado, Kentucky, Louisiana, Montana, Tennessee, Washington, and West Virginia), while ten others have adopted the collective rights theory (Massachusetts, Minnesota, Nevada, New Jersey, New York, North Carolina, Ohio, Texas, Utah, and Illinois).

And the debate has extended beyond the bench. In a 2001 memorandum opinion from Attorney General John Ashcroft, the Department of Justice officially adopted the individual rights understanding. Under prior administrations, the department has gone both ways. Professor Laurence Tribe's most recent constitutional law treatise supports the individual rights view, as do, as the Parker court notes, "the great legal treatises of the nineteenth century." Perhaps the most eloquent proponent of the individual rights view was Ninth Circuit Judge Alex Kozinski, in dissent from his court's denial of rehearing in Silveira:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. . . . When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases--or even the white spaces between lines of constitutional text. But . . . when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.