Tuesday, March 13, 2007

Some in the weekend media described the federal appeals court in Washington DC as interpreting the Second Amendment “broadly” when it struck down a gun control law in the District of Columbia that bars residents from keeping handguns in their homes. “The decision was the first from a federal appeals court to hold a gun control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to the collective rights of state militias.”, NY Times 3/10/07.
This characterization is untrue at the most, misleading at the least and tendentious either way. Here’s why:

The federal courts of appeal have often (a more suitable description of the Federal Appellate Court’s rulings so far) subscribed to the states' right approach, instead of to the individual right approach. However, they also have not agreed upon any single interpretation of the Second Amendment. The Fifth and Ninth circuits have shown different judicial thinking, tending to favor the individual and collective rights models respectively. Most (more suitable than to describe the ruling as “the first”) circuits have followed the Ninth's reading, despite these inconsistencies among the lower courts, the Supreme Court has not granted certiorari to any recent case hinging on the Second Amendment

The United States Court of Appeals for the Fifth Circuit stated in 2001 that ”there are numerous instances of the phrase "bear arms" being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the "people" [or "citizen" or "citizens"] "to bear arms in defense of themselves [or "himself"] and the state," or equivalent words, thus indisputably reflecting that under common usage "bear arms" was in no sense restricted to bearing arms in military service.

The U.S. Supreme Court Cases Do Not Treat the Right as a Collective Right
The U.S. Supreme Court has said little about the Second Amendment, but it has certainly not said that the Amendment secures only a collective right.
Throughout the Court's history, the Justices have mentioned the Second Amendment, usually in passing, in 27 opinions. In 22 of these 27, the Justices quoted or paraphrased only "the right of the people to keep and bear arms" language, without even mentioning the Militia Clause.
One of the remaining five cases -- and the only extended 20th-century discussion of the right -- is United States v. Miller (1939), which held that the right extended only to weapons that were rationally related to the preservation of the militia. But the Court emphatically did not hold that the right belonged only to the state or the National Guard. Rather, it reaffirmed that the "militia" referred to the entire armed citizenry, and considered on the merits a lawsuit that was brought by an individual (Miller), not by a state.
The only Supreme Court case that leans in the collective rights direction is Lewis v. United States (1980), which summarily rejected an ex-felon's claim of a right to possess a firearm, in passing citing some lower court cases that took a collective rights view. But Lewis could equally well be explained as concluding only that ex-felons don't have a right to keep and bear arms (something that's also been held in the many states whose constitutions unambiguously guarantee an individual right to keep and bear arms). In any event, if one relies on passing mentions, Casey v. Planned Parenthood (1992) (quoting Justice Harlan) in passing described liberty as including "[freedom from] the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on" -- a description that treats the right to keep and bear arms as an individual right on par with the other individual rights.

What the States Think
An often glaring omission by those discussing the topic…
The Second Amendment of the United States Constitution is a Federal provision. Each of the Fifty States also has its own State Constitution addressing their specific state. Forty-four States have chosen to embody explicitly a right to arms into their State's Constitution, and six States have chosen explicitly not to do so.
Of the forty-four states that have chosen to embody explicitly a right to arms into their State's Constitution, approximately thirty-one have explicitly chosen to include the right to arms for 'individual right', 'defense of self', 'defense of home' or similarly worded reasons. Approximately thirteen States, as with the Federal Constitution, did not choose to include explicitly 'individual', 'self' or 'home' wording associated with a right to bear arms for their specific state. In other words, almost 2/3rds of the states view the right to arms as an “individual right”.

Finally, an interesting side-note but apropos to the discussion is the book titled “Armed America: The Remarkable Story of How and Why Guns Became as American As Apple Pie” by Clayton Cramer, Nelson Publishing. Up until 1969, virtually all New York City schools had riflery teams…thousands of students carried rifles on subways, buses and streets to and from schools. Up to 1963, all commercial pilots were required to carry guns and were allowed to until 1987. Today, there are towns (Kennesawy, GA, Greenfeld and Geuda Springs, KA) in the US that actually require all residents to own guns. In colonial times there were numerous laws mandating people have guns for personal defense and defense of the community –even in Church where some priests were required by law to check if parishioners were carrying! According to probate records, 70% of Americans bequeathed guns.

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