Legal Affairs March 2007

A Right to Keep and Bear Arms?

An appeals court ruling striking down a D.C. gun control law is right and should be affirmed.

The U.S. Court of Appeals for the District of Columbia Circuit issued the biggest gun control decision in decades on March 9, perhaps setting the stage for the biggest Supreme Court gun control decision ever. Rejecting the views of most other courts, Judge Laurence Silberman held for the 2-1 majority, "The Second Amendment protects an individual right to keep and bear arms"—not just to have guns when needed for service in now-defunct state militias. On this basis, the majority struck down the District of Columbia's uniquely broad ban against having either a pistol or an operational rifle, even at home for self-defense against intruders.

The decision, Parker v. District of Columbia, is right and should be affirmed. And contrary to a widespread myth, confirmation by the justices that Americans have an individual right to keep and bear arms would not invalidate reasonable gun control laws.

To put my own biases on the table: I don't hunt or own a gun. I support reasonable gun controls but consider the D.C. law unreasonable. I had never fired a pistol until a recent vacation trail ride, when I missed a large target with all six shots. This amused my 19-year-old daughter, who scored five out of six.

Now to the Second Amendment. It states: "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."

For decades, most courts and legal scholars have treated this as essentially a dead letter. Their reasoning goes like this: The amendment's first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.

Judge Silberman shreds this conventional wisdom in a 58-page opinion joined by Judge Thomas Griffith. In doing so Silberman builds on the work of a few leading scholars of diverse political persuasions.

"At first blush," Silberman begins, "it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as, 'Congress shall make no law disarming the state militias' or 'States have a right to a well-regulated militia.' "

In addition, the opinion points out, the Framers vested in "the people" the rights protected by the First, Fourth, and Ninth Amendments as well as the Second. Nobody contends that those other provisions protect no individual rights; indeed, "the Bill of Rights was almost entirely a declaration of individual rights," Silberman says. And the Supreme Court said in 1990 that "the people" means the same thing in the Second Amendment as it does in the First, Fourth, and Ninth.

The Founders' language strikes another "mortal blow to the collective-right theory" in explicitly guaranteeing a right to "keep" arms, as well as to "bear" them, Silberman asserts: " 'Keep' is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use."

And while no other Bill of Rights provision includes a preamble clause stating its civic purpose, many state constitutions of that era did begin with prefatory clauses stating "a principle of good government that was narrower than the operative language used to achieve it," Silberman explains.

Similarly, in the Second Amendment context, "preservation of the militia was the right's most salient political benefit—and thus most appropriate to express in a political document" that was designed to assure "Antifederalist opponents of the 1787 Constitution [that] the militia system would remain robust."

Silberman's opinion makes a convincing case that the Founders saw the Second Amendment as codifying a natural right to "private use of arms for activities such as hunting and self-defense [against] either private lawlessness or the depredations of a tyrannical government."

Presented by

Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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