By Karen MacNutt,
Contributing Editor

The United States Court of Appeals, District of Columbia Circuit:
"Appellants [Parker] contest the district court's dismissal of their complaint alleging that the District of Columbia's gun control laws violate their Second Amendment rights. The [District] court held that the Second Amendment ('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.') does not bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today's National Guard. We reverse." Silberman, J.

With two words, "We reverse," the District of Columbia Court of Appeals set the stage for the United States Supreme Court to interpret the Second Amendment. How did we get to this point? What does it mean for gunowners?

The gun control issue has two main arguments: 1) Is there a need to restrict the ownership of guns? And, 2) Is it legal to restrict the ownership of guns under the federal Constitution?

The two questions are independent. The Constitution prohibits many things that impede law enforcement. The need for warrants, the right to privacy, the right not to be held without being brought before a court, the right to a trial, the right to face your accuser and to present matters in your own defense, and the right not to be tortured during questioning are some of the important rights guaranteed by the Constitution. Some would say that these rights impede law enforcement. Some believe that people accused of terrorist activities should not have those rights. Some are willing to twist the Constitution to get their own way.

The question before the Appeals Court was not whether or not the D.C. gun law reduced crime. The question was whether the measure exceeded the limits set on government by the Constitution.

Those who do not believe in private gun ownership say the Second Amendment to the federal Constitution is not an individual right. They point to the first part of the Amendment which states "A well regulated Militia being necessary to a free state, . . ." They claim the Second Amendment only allows members of the militia, which they define as the National Guard, to have guns. There is no individual right, they argue, to own guns.
Gunowners point to the second clause of the Amendment which states, "the right of the people to keep and bear arms shall not be infringed." Gunowners say that the Second Amendment, like all the Amendments in the Bill of Rights, protects the rights of individuals.

Federal courts only hear questions of federal law. They do not interpret state law unless state law violates federal law. Unlike some states, the federal court will not rule on questions of law unless someone has been injured and then they only allow the injured party to bring the suit. For example: A law giving the FBI the right to kill left-handed people who live in Philadelphia is unconstitutional. A right-handed person could not challenge the law in federal court. Only a person who has been injured by the law can challenge it. The challenge would have to come from a left-handed person who wishes to go to, or who lives in, Philadelphia. The federal courts call this "standing." You only have standing to sue if there is a real case or controversy in which you have a personal interest. A general interest in good government is not enough.

The lowest federal court is the District Court. People appeal from the District Court to the United State Court of Appeals. Sometimes called the Circuit Court, the Court of Appeals is actually a system of Courts. The country is divided into appellate districts each with its own appellate panel of judges. The panels operate independently. Thus an issue raised on appeal in Massachusetts would go to a different panel than the same issue raised in California. The Appeals courts are all equal. They are not obliged to follow each other's rulings. Because of this, two different Appeals Courts could rule differently on the same question. What is the "law of the land" in New England (the 1st Circuit), might not be the "law of the land" on the West Coast (the 9th Circuit). When this happens, and the question is one of general public interest, the Supreme Court will usually, but not always, take a case to resolve the conflict between the different Circuit Courts of Appeal. The Supreme Court takes very few cases. To date, the Supreme Court has not ruled on whether the Second Amendment is an individual right or a collective right.

The recently decided Parker case involved a challenge to Washington, DC's gun laws. Those laws make it almost impossible for ordinary citizens to own guns in DC. Even if you did own a gun, the law requires that it be kept in a non-functioning or locked state at all times. The Plaintiff wanted to keep a gun in his own home for protection. He needed a license to do that. He applied for one and was denied. Plaintiff also wanted to keep the gun unlocked and ready to function. Even if he had a license, he would not be able to carry the gun, even inside his own home, in a functioning state.

The District Court dismissed the challenge saying that the Second Amendment was a collective right and therefore the District of Columbia could prohibited the individual ownership of handguns.
The denial was appealed. The Appeals Court for the District of Columbia reversed the lower court saying that the Second Amendment is an individual right.

The 59 page Appeals' Court opinion examined the meaning of the word "people" as used in the Second Amendment. The Court concluded that the word "people" in the Second Amendment had the same meaning as the word "people" when used in other amendments. That is, the Second Amendment guaranteed rights to individual citizens just as the First and Fourth Amendments guaranteed rights to individual citizens. The Court further examined the meaning of the word "militia" and found that the term did not mean the organized militia but the body of unenrolled citizens from which the organized militia was drawn. The militia is not quite the entire body politic, but it is close to being so. It was not a select body of people.

The opinion is an excellent summary of the Constitutional arguments on the Second Amendment. Two of the three judges accepted all the key legal arguments made by gunowners. The third Judge wrote a 17-page dissenting opinion.

The dissenting opinion focused on the fact that the District of Columbia was a federal enclave, not a state. The Justice felt that the purpose of the Second Amendment was to allow the States to have a militia to protect themselves. It was a states' rights issue not an individual rights issue. Because of this, D.C. did not need a militia and was not intended to be a beneficiary of the Second Amendment.

The "collective right" theory has always been a "non sequitur." The conclusion does not follow from the premises. If the Second Amendment was a state's rights issue to allow states to have armed militia, then any federal law that restricted gun ownership that was in conflict with a state law that allowed gun ownership, would be unconstitutional. Further, the concept that the states were to be guaranteed an organized military force is contrary to specific prohibitions in the Constitution about states having a standing military force.

The Second Amendment is an individual right. It was intended to protect the civil government as well as private individuals. The thing most feared by the founding fathers was that a professional army might turn against the civilian authority. Their fear was very personal. During the depths of the American Revolution, the Pennsylvanian Line of Continental Soldiers (our regular army) mutinied and marched on Congress. Congress was then sitting in Princeton, New Jersey. The soldiers took Congress hostage and demanded certain resolutions be passed. As soon as General Washington learned of the mutiny, he sent loyal troops to protect Congress. The mutiny was one reason that the Founding Fathers created DC as a federal enclave. When the regular troops mutinied, Congress did not have the power to call out the New Jersey militia. There was no one they could call out as a matter of right to defend itself, the civil authority, from a rogue military. An advantage of having a separate federal district was that Congress, or the federal civilian authorities, could directly call upon the federal militia to defend the government. A call to the militia was a call for the people to defend self government from a rogue professional army or, for that matter, a rogue state government.

The term "a free State" in the Bill of Rights did not refer uniquely to the states of the United States. It was a general reference to sovereign entities. The term "country" refers to the land without reference to the political structure. France is France whether it's ruled by a king or governed by a republic. The term "nation" refers to ethnicity such as the Indian Nations. The term "state" refers to a sovereign political entity or supreme public power. When a president dies, he has a "state funeral." That is, a memorial run by the government. A free state was one that was not a vassal of some other power. To that end, the United States, as a whole, is a free state.

The concept that an armed militia was necessary to a free state is ancient. "The chief foundation of all states," wrote Niccolo Machiavelli some 260 years before the founding of the United States, "Are good laws and good arms. And as there cannot be good laws were there are not good arms, and where there are good arms there must be good laws... only princes and armed republics make very great progress whereas mercenary [professional armies] forces do nothing but harm."

The DC Appeals Court is highly regarded. It frequently addresses issues involving the powers of government. In the Parker case, the Court often referred to the opinion of the 9th Circuit Court of Appeals (California) which held that the Second Amendment was a collective right. The 9th Circuit denied standing to people who were trying to challenge California's assault weapons statute. (See Silveria v Lockyer, 312 Fed 1052). Because the Second Amendment was a collective right, no individual could claim its protection. In a footnote, the DC Appeals Court observed that the 5th Circuit is the only other federal Appeals Court that ruled the Second Amendment is an individual right. The 1, 3, 4, 6, 7, 8, 9, 10, and 11th Circuits have all taken the collective right approach.

The DC Appeals Court went to great lengths to flesh out all the arguments. It pointed out why it thought the other courts were wrong. By doing so, it set the stage for a review by the United States Supreme Court.

The Appeals Court pointed out that by ruling that the Second Amendment was an individual right it was not ending all gun laws. The same type of balancing test that is done with other Constitutional rights would have to be made for gun laws. In addition, the question of whether or not individual states were restricted by the Second Amendment would still be open.

As originally written, the Bill of Rights only restricts the federal government. People looked to their state constitutions for protection from state government. It was not until the passage of the Fourteenth Amendment after the Civil War that the Bill of Rights started to be applied against the states. The Fourteenth Amendment proclaimed that no state could make a law which denied any citizen the privileges and immunities of citizens of the United States. The Fourteenth Amendment, caused most, but not all, of the Bill of Rights to be applied to the states. There is no guarantee that the Second Amendment could be used to strike down any state law.

The DC Appeals ruling, although a victory, is not the end of the story. It simply means we have survived round one. We must next survive the Supreme Court. Even if we do, we cannot sit back because there are still issues that will be raised in the states. There is still the political question of how much regulation is reasonable.

The major change if we win in the Supreme Court is that laws impacting gun rights will be held to a new standard. Simply having some rational basis will not be enough. The proponents of gun laws, if the laws are challenged, will have to show that the laws do not unreasonably interfere with the Constitutionally protected right. The battle will not be over but the rules will have changed.