As reported and summarized here, a divided three-judge panel for the United States Court of Appeals for the D.C. circuit has ruled “that the District of Columbia’s gun control laws violate individuals’ Second Amendment rights”. “According to the majority opinion, “[T]he 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.””
The full opinion is well worth reading. Compared to most dishonest mainstream constitutional interpretation, this opinion is a breath of fresh air.
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
The good guys here are Judges Laurence H. Silberman and Thomas B. Griffith. Judge Karen LeCraft Henderson dissented.I also especially liked this very federalist comment: “Only the Fifth Circuit has interpreted the Second Amendment to protect an individual right. State appellate courts, whose interpretations of the U.S. Constitution are no less authoritative than those of our sister circuits, offer a more balanced picture.” (emphasis added). I think this one comment is arguably more revolutionary than the gun-rights holding. (For an interesting view sort of reverse of or complementary to this, see Life on a Federal Island in the Civilian Sea, Miss. C. L. Rev. 1994, by William E. Crawford (one of my former law profs). Crawford makes the intriguing argument that because of the Erie doctrine (a Supreme Court doctrine that specifies that a federal court sitting in diversity jurisdiction over a state law claim must apply state substantive common law in resolving the dispute) and the unique legal nature of Louisiana’s civil-law legal system (the other states are common law) under which “there is no rule of stare decisis“ (case precedents are not strictly binding; statute and code law is primary)--that federal courts are not only as competent to interpret Louisiana law as Louisiana state courts, but that federal courts are not even bound by state court interpretations of state law--even those of the Louisiana Supreme Court!)
