A Chequer-Board of Nights and Days

The D.C. Circuit Court of Appeals struck down a D.C. gun control law that prevents people from keeping handguns in their own home. In doing so, the Court found that the Second Amendment confers an individual right to bear arms and not just a collective right to "militias."

This is a welcome ruling for the reasons detailed by Eugene Volokh (read the whole chain) and Gene Healy. I agree with others who believe that it will prompt Supreme Court review thanks to the jurisdictional split that it has prompted.

Opponents of an interpretation granting inedividual Second Amendment rights will likely cite United States v. Miller to refute the ruling of the D.C. Circuit Court of Appeals. They shouldn't. All the Supreme Court did in Miller was to find that

[I]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

In short, the Supreme Court stated that a sawed-off shotgun did not have "some reasonable relationship" with the preservation of a well regulated militia. But from this narrow ruling, one cannot glean that the Supreme Court was saying that an individual right to bear arms could not be found in the Second Amendment. As such, Miller does not have the persuasive power that anti-individual rights advocates likely claim it has.

The D.C. Court's ruling was not the first one to find the existence of an individual rights component to the Second Amendment. In 2001, the Fifth Circuit found in United States v. Emerson that the Second Amendment

protects the rights of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.

This right is not absolute, but then, no right is. Just about every right has some kind of restriction on it. That having been conceded, the Emerson court's ruling is a significant one and appears to be in line with the D.C. Circuit Court's ruling. (Note that Eugene Volokh had to issue a reminder concerning Emerson's existence in discussing the New York Times's coverage of the D.C. Circuit Court decision.)

Another argument against a finding that the Second Amendment confers an individual right to bear arms will likely center on the prefatory language of the Second Amendment "a well regulated Militia being necessary to the security of a free State . . ." As with the likely attempted application of Miller, this prefatory language will likely be used to argue that the Second Amendment only applies to militias, not to individuals.

But again, this argument makes little sense and again, it is fairly demolished by Eugene Volokh. In this article, Professor Volokh shows that if we wanted to limit the application of rights merely because of the existence of prefatory language in granting those rights, we would find ourselves in the middle of one raging controversy after another. Did you know that Rhode Island's constitution has prefatory language concerning free speech? 'Tis true:

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .

And how about the following from New Hampshire's constitution?

In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .

And the following from the constitution of the Commonwealth of Massachusetts:

The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.

Think that any of this prefatory language limits free speech rights and the conduct of criminal trials? You shouldn't; as Professor Volokh shows, the existence of prefatory language in the granting of a constitutional right is entirely normal and when it comes to prefatory language creating two clauses in the granting of a particular constitutional right, these examples show "how the two clauses might be read together, without disregarding either." So if we are not going to limit free speech rights or the conduct of criminal trials because of the existence of prefatory language in the constitutional provisions concerning those issues, why should we do so when it comes to the Second Amendment?

All of this shows why the D.C. Circuit--and the Fifth Circuit before it--were right to find the existence of a robust individual rights application of the Second Amendment. As I write above, I believe the Supreme Court will take up this issue to address the jurisdictional conflict that has been created. If it does, by all rights, the D.C. Circuit's finding ought to be sustained and the individual rights interpretation of the Second Amendment ought to be enshrined in the Court's jurisprudence.