The Second Amendment and the District of Columbia

By Nancy Jane Moore

The U.S. Court of Appeals for the D.C. Circuit recently struck down the very restrictive Washington, D.C., gun control as unconstitutional under the Second Amendment. The court said:

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. ... 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.

This is essentially the National Rifle Association's interpretation of the Second Amendment. It is not an argument that has ever garnered much support in the courts up to now. Over on Balkinization, Professor Jack Balkin seems to agree with the court's interpretation, though he criticizes the arguments used to back up the opinion and reminds the D.C. Circuit that the U.S. Supreme Court's decision in U.S. v. Miller did not find an individual right to bear arms. The D.C. Circuit is supposed to follow Supreme Court precedent, as Prof. Balkin points out.

A guest blogger on Balkinization, historian Sean Carroll, cites historical errors in the opinion, observing:

It is rather shocking to see a Federal Appeals Court misread established precedent in such a politically distorted fashion.

Both these professors provide interesting arguments that are worth the time of anyone who is interested in the Second Amendment and gun control.

I confess to being one of the few people in the U.S. who is pretty much neutral on the subject of gun control. On the one hand, gun violence and stupid gun accidents are a real problem in the United States. But I also have qualms about laws that prohibit something that people want -- even if they're foolish for wanting it -- because they're pretty much unenforceable. I don't have a gun and I don't want one, but if I did, I could find a way to get one without much difficulty -- and I'm a law abiding citizen.

Further, I do tend to think that the founders intended to provide an individual right to gun ownership in the Second Amendment. They were, after all, revolutionaries. However, I have also tended to think that the courts would not enforce such a reading of the Amendment, because the revolutionary period in this country passed long ago. This ruling suggests that I might have been wrong.

It will be interesting to see what happens next with this case. The D.C. Circuit could overturn it en banc -- the decision was by a three-judge panel and the whole court can decide to rehear such cases -- or let it stand. If the D.C. Circuit doesn't overturn it, the Supreme Court could decide to hear it or could summarily overturn it, citing U.S. v. Miller. Given how unusual the ruling is, I don't think the Supreme Court will simply let it stand.

So I am watching the situation with interest, if not with the emotional investment of the Brady Center to Prevent Gun Violence or the NRA.

But whatever the courts decide to do with the case, I hope they will drive a stake through the position taken by Judge Karen LeCraft Henderson in dissent. She concluded that it didn't matter what the Second Amendment meant; it didn't apply to the District of Columbia because the District isn't a state. She writes:

[T]he meaning of the Second Amendment in the District of Columbia (District) is purely academic. Why? As Judge Walton declared in Seegars v. Ashcroft, ... "the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it."

Apparently, her tortured reasoning is that the District doesn't have a militia and can't call out troops without the permission of the President, and therefore, even if there is an individual right to bear arms, it doesn't apply to those of us taxpaying U.S. citizens who happen to live in D.C.

Now that offends me. As a U.S. citizen, I should be entitled to the same rights as any other American, and an interpretation of the Bill of Rights that leaves me out goes against core principles of fairness. Plus, if we're talking about an individual right here, her interpretation of the militia issue is a large stretch.

As I said earlier in my post on taxation without representation, the reasons for treating the District differently are long since gone. It's time to do something about ridiculous interpretations that make us second and even third class citizens.

I don't much care what the courts decide on the Second Amendment -- I don't think the right to bear arms has much impact today in protecting our democracy. I think the First Amendment is much more important:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

But I do care that all the rights of U.S. citizens apply to me and my neighbors in the District of Columbia. I hope no court adopts Judge Henderson's ruling as a way to duck dealing with the meaning of the Second Amendment.