It's with some consternation that a federal appeals court could make a constitutional decision on gun rights that makes some sense but without having the faintest idea of what the Constitution means, but the United States Court of Appeals for the District of Columbia Circuit did that last week with its decision of Parker v. District of Columbia. Once again, a court had the opportunity to define the Second Amendment correctly but blew it.
The decision said that the Second Amendment protects the rights of individuals to keep and bear arms. It was the first decision from a federal appeals court to rule a gun-control law unconstitutional with such reasoning. Nine other federal appeals courts in the nation have rejected that interpretation of the Second Amendment. But they haven't been correct either by saying the right to keep and bear arms was a states right in order to maintain a militia.
The District of Columbia law, one of the most strict in the nation, made it almost impossible to register handguns and prohibited the carrying of unlicensed handguns from room to room in a private residence. It also required that legally owned firearms be kept unloaded and disassembled or be disabled by a trigger lock.
The court said in its 2-to-1 decision that those restrictions unconstitutionally infringed on the individual's right to keep and bear arms. The last time the Supreme Court ruled on this issue of gun ownership was 1939, and it sent a case back to a lower court to rehear under the Supreme Court's instructions that owning a sawed-off shotgun had to have some relationship to the individual's militia duties.
The Militia Act of 1903 organized the various state militias into the present National Guard system, so the old state militias are the present national guards. So when former National Rifle Association (NRA) President Charlton Heston said that the National Guard has nothing to do with the militias of the Second Amendment, he wasn't truthful.
The majority in last week's decision pointed to a 1998 court dissent in which "at least three current members (and one former member) of the Supreme Court have read 'bear arms' in the Second Amendment to have meaning beyond mere soldiering." Cited were Justices Ruth Bader Ginsburg, Antonin Scalia, David Souter and the late Chief Justice William Rehnquist, who died in 2005.
Judge Laurence H. Silberman wrote for the appeals-court majority that, "It seems ... 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.' "
The court's 2-1 ruling is probably correct, it's argument that the Second Amendment refers to individual rights is not.
The Second Amendment says, "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."
Here's what James Madison, the Founder who headed the committee that wrote and proposed the Bill of Rights, including the Second Amendment, said on the matter:
"A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country."
That's it. The Second Amendment was included in the Bill of Rights to provide for national defense, and for no other reason. It wasn't there so the people could rise up in rebellion against a future tyrannical national government, as the NRA falsely claims, and it wasn't included for self-protection or for shooting birds and lawyers ~ as Dick Cheney did ~ in Texas. Those are just side benefits of an armed society.
The statement of a "well regulated militia" refers us back to the body of the original Constitution ~ Article I, Section 8, paragraph 16, ~ that says Congress has the power of arming the militias of the several states. That is a power Congress has mostly ignored, and has abetted crime in this nation for more than two centuries by doing so. And it is a reference to congressional power, made by Madison, that two judges on the appeals court couldn't find.
In pioneer days, Congress would let this matter slide so that Americans moving west could conquer the land, but that doesn't lessen the meaning of the Second. It is still up to Congress to decide how far the keeping of firearms shall extend, who can possess them and under what conditions. It does prevent any government from banning all guns outright. (Brief aside: the Fifth Amendment prohibits confiscation of any firearm legally obtained. The NRA has ever lied about that, also)
If the "right to keep and bear arms" were an individual right protected by the Constitution, paroled felons could possess guns as could mentally unstable people. An individual right is an "immunity" under the Constitution. Individual immunity rights include religion, speech, peaceful assembly, fair trial or any other right that can not be legislated away or controlled by government. Communal rights would be privileges that can be restricted or restrained. Running for and holding public office, voting, operating commercial ventures are examples of privileges. Gun ownership is also a privilege because we shouldn't want everyone in society running around armed to the teeth. When the Founders used the word "rights" they meant both privileges and immunities.
Judge Silberman was confused in his assertion that the "First Congress would have expressed a sole concern for state militias ... such as 'Congress shall make no law disarming the state militias' or 'states have a right to a well-regulated militia'."
Madison wrote exactly what he wanted to write, and he expected Americans like Silberman to understand what he wrote. If he wanted the right to "keep and bear arms" to be an individual right, as Silberman suggests, he would have written something such as, "no person's right to keep and bear arms shall be infringed." He didn't do that. The word "person" would have made the right an individual right, which Madison didn't want to do. He wanted the right to "keep and bear arms" to be a communal right; that's what "right of the people" means. There is nothing in the Second Amendment suggesting otherwise.
Madison and other members of the First Congress knew that they had no professional standing army and didn't want one. Their intention was that the national army would be formed when needed by calling to national service the various state militias, so it was important for society to be armed in order that all able-bodied men serve in the militias. An armed society doesn't mean that every individual be armed. The original Constitutional also required the states to train their militias according to Congress' standards so they could easily be merged into one national army with little trouble.
We have too long existed under a confused reading and application of the Second Amendment. It's unfortunate that a federal court just adds more confusion.
Thomas Bonsell is a former newspaper editor (in Oregon, New York and Colorado) United States Air Force cryptanalyst and National Security Agency intelligence agent. He became one of (more...)