The case decided yesterday was brought by Dick Heller, a guard at the Federal Judicial Center who was permitted to carry a gun on duty and wanted to keep one at home. His application was denied by officials in the District of Columbia.
Mr. Heller challenged provisions of the District’s law, one of the most restrictive in the nation, that almost always banned the registration of handguns, that prohibited carrying handguns without a license even from one room of a home to another and that required lawfully owned firearms to be kept unloaded and disassembled or bound by a trigger lock.
In a 2-to-1 decision, a panel of the District of Columbia Circuit court ruled those provisions unconstitutional.
-- NYT [See also here and multiple posts here.]
Well well. I am not aware of a federal court ruling in recent times that struck down a gun law on Second Amendment grounds (some state rulings did on comparable state constitutional grounds, a few federal rulings in dicta suggested some limits) ... until now. The Fifth Circuit individual rights ruling beloved by gun rights activists upheld the conviction, noting those under a domestic violence protective order are reasonably limited akin to felons and the insane. My own circuit was one of two that did not expressly deal with the issue.* Again, until now.
Parker v. D.C. summed up the right claimed thusly:
Essentially, the appellants claim a right to possess what they describe as “functional firearms,” by which they mean ones that could be “readily accessible to be used effectively when necessary” for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District’s authority per se to require the registration of firearms.
This provides a limiting nature to the case which might restrict the possibility of Supreme Court review, even though technically there is a conflict in the circuits, individual vs. collective rights related. Simply put, there are not too many rulings of this caliber, dealing with a law that realistically bans home ownership of not just some select "assault weapons" (surely a term open to debate, but still a minor category not of general interest) -- I'm not even sure if the ruling technically concerns sale -- but ordinary handguns by the general public. I know of but one, the Quilici case covered in the BOR book by Alderman/Kennedy.
The fact it covers a federal enclave adds to its limitation, though it makes things more up close and personal for the justices. In fact, this provided an out for the dissent, which argued the amendment was concerned with state security, not federal territories. Dicta in Supreme Court caselaw, from Dred Scott on down, makes this a dubious -- if ingenuous -- out. Also, the amendment's use of "free state" doesn't really help here. It probably meant "free republic," "state" having a national flavor at the time. [See, e.g., the Eleventh Amendment's citation of "a foreign state."] And, "free state" is not the same as "state" at any rate ... it is in this respect a term of art.
Not that the majority here was fully loyal to Supreme Court precedent, thin as it might be in this area. The majority basically noted:
We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit—and thus the most appropriate to express in a political document.
This reflects the nature of the ruling generally. It has a heavy originalist flavor, reflecting the main dissent in the Ninth Circuit ruling, which it repeatedly cites. Thus, we hear about congressional action concerning the militia in the 1790s with no citation of the very different treatment in modern times, in which Congress set up the National Guard regime. It is like citing the original views on the First Amendment without taking into consideration the changing times from an era where citations of a "Christian nation" was quite acceptable. Likewise, the Civil War greatly changed opinion on the "militia." Both facts doesn't necessarily mean there is no individual right at stake, but such historical developments need to be covered, surely in such novel holdings.
The ruling also has the usual flaws found in too sure of themselves originalist laden rulings. It is obvious to the two judges here that the Second Amendment was recognized as an individual right with broad reach, the preamble particularly added to address a specific fear of the times. IOW, it reaffirmed the militia nature of gun ownership, but other aspects were secured by the second part as well. It cited linguistic understandings of "keep" and "bear," challenged by the book I recently reviewed on these pages and others to cement the fact. Thus, a minority dissenting Antifederalist view apparently helps them, while others who thought differently was elided over. Since the dissent dealt with the matter narrowly, she had no need to deal with the matter.
Likewise, even the U.S. v. Miller ruling is damning. In comparable conclusive language, if probably not meant to cover as much ground as later was used by citations thereof, it noted:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
The militia also was said to have secured the "common defense," not purely private use. This simply does not match the current majority's view that: "The pre-existing right to keep and bear arms [and secured by the 2A] was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they would be obligated to perform for the state." The Supremes followed with a citation of an antebellum state ruling, Aymette v. State [Tennessee] that noted in part: "it does not mean for private defence, but being armed, they may as a body, rise up to defend their just rights, and compel their rulers to respect the laws." It also noted that hunting is not covered:
A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.
One might disagree with this reading, but it appears to be the understanding of controlling Supreme Court precedent. It is surely true that the people were (and generally ... see the stance of all major 2004 presidential candidates ... still) understood to have the right to be armed for private defense. It simply is not clear, however, if the Second Amendment is generally the place to look to secure it. The dissent in Quilici, for instance, cited privacy of the home. Quite apt here. Dred Scott spoke of a "privilege and immunity" of citizen to "keep and carry" arms. The book does suggest some by the 1850s did see the Second Amendment in these terms. But, I dare say it is open to debate.
Anyway, per the book, the ruling does recognize various reasonable regulations are legitimate, in some respects because they further the interests of the militia (since the Second Amendment apparently covers more than that, this is of unclear reach, unless conflicting with the militia as such is a problem). These might include carrying them while under the influence of "intoxicating drink, or [taking them] to a church, polling place, or public assembly, or in a manner calculated to inspire terror," concealed weapons bans, proficiency testing, and restraints on felons and the mentally unstable. In fact, many fear registration, but the ruling seems to respect such regimes as well.
Let's see where this leads. Supreme Court review? I have my doubts, though it would be interesting.
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* The ruling discussed here cites a 2nd Circuit case (United States v. Toner [1984]) that in passing deals with the Second Amendment, and it is par for the course in regard to the sort of case that is found when one checks. It respects a sting operation to sell machine guns for use in the IRA! The Ninth Circuit is the other federal appellate court (jointed with the Federal and Fifth) that recently discussed the Second Amendment in depth. This time to deal with an assault weapon ban.
Other rulings dealt with separate issues, some with potentially liberal results, but not related to gun ownership per se. [But, see Justice Thomas' concurrence in Printz.] In fact, the one Supreme Court ruling that directly covered the subject was a tax case. Other federal appellate judges argued simple possession could not be targeted by the federal commerce power. Later Supreme Court rulings tempted such a reading of Lopez.