Parker/Heller: State of mind
I’ve heard some folks ponder whether DC’s status as, well, not a state will impact the DC Gun Case. The court will address:
Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
I tend to think it won’t impact the decision much. There is the bit about state-regulated in their order but they’re not directly addressing in the order that state-iness question. What say you?
November 21st, 2007 at 10:41 am
I don’t think so either. “The people” are not the people of the several states but the people of the United States. (Although I’m sure you could find someone who’ll claim that the Second Amendment is a state’s right granting the states a power equivalent to Congress’s Article I power to raise and support armies.)
One good thing about this case, regardless of the outcome. It will be the most intelligent and best informed discussion of the Second Amendment since the original Constitutional Convention.
November 21st, 2007 at 11:06 am
David Hardy has some analysis of the Court’s phrasing of the issues to be briefed and argued at his blog, Of Arms and the Law. Link available at the right.
Also, Eugene Volokh (a law professor at, I believe, UCLA) has an interesting summary of the meaning of “free State” as commonly used in the 18th century and so, presumably, as intended by the Framers of the Second Amendment. See http://volokh.com/posts/1195588709.shtml (Spoiler – it basically means a “free country.”)
November 21st, 2007 at 11:52 am
I think it will affect future decisions more than this one. If the Court rules that the Second Amendment only protects state-regulated militias, it will mean there is no Second Amendment in the territories. If it rules that the Second Amendment protects individuals without regard to membership in state-regulated militias, it will make the next case, arguing for 14th Amendment incorporation, much cleaner, as it will have clearly established that the substantive individual right exists, the only question being whether states are allowed to violate it.
November 21st, 2007 at 12:53 pm
I don’t think DC’s non-state status will matter much. If DC argues that the 2nd Amendment doesn’t apply because it’s a non-state then one could logically conclude, applying DC’s reasoning, that the same is true of the rest of the Bill of Rights. I think the justices will consider the non-state argument nonsense if they consider it at all. Our victory here is going to hinge on how narrow their decison ends up being, and it’s impossible to determine that at the moment. I find it highly unlikely that we’ll lose outright.
And yes, “Free State” in the 18th century most likely meant “Free Country” just the same as “Well-Regulated” doesn’t have the same meaning as it had 200+ years ago. If the Justices take themselves back to the time the amendment was written as context in making their decision (as they are supposed to do) all of this becomes quite obvious.
November 21st, 2007 at 12:59 pm
If the court were to make the ruling that “a well-regulated miltia” restricted “the right of the people” to a state militia, it would have to be acknowledged that the Federal Gov’t has no power over them, except when called into service for the Federal Gov’t. That would mean that ALL Federal gun laws which in any way “infringe on the right of the people to keep and bear arms” would be unconstitutional and NOT applicable to “the people”. Any restriction of the right to keep and bear arms would have to be “reserved to the States” and, for example, the Tennessee Constitution’s Declaration of Rights, states that the citizens of our state have the right to keep and bear arms for self-defense.(
The Bill of Rights was addressed to the Fedral Gov’t as “declarative” (of rights) and “restrictive” of the government according to the Preamble of the Constitution.
If the sentence that comprises the 2nd Amendment is read according to the rules of English grammar, the first clause is a subordinate or dependent clause, which is not restrictive, but explanatory. It makes no sense grammatically that the dependent clasue would negate the main or independent clause of the sentence, which stands complete: “the right of the people to keep and bear arms shall not be infringed”. Historically, the quotations of the founders are replete with the understanding that the “miltia” is “the whole people”, which agrees with the wording of the 2nd Amendment as it is read according in plain English; i.e., “miltia” and “the people” are synonomous in teh context of the sentence.
Also, rights belong to the people whereas the government is retricted to “delegated powers”…the reason our founders added the Bill of Rights.
November 23rd, 2007 at 4:18 pm
If you actually read Judge Silberman’s decision, he does a pretty good job skewering the “2A doesn’t apply because we’re not a state” argument. Firstly, it assumes it’s own conclusion (because for that to matter in the first place, you necessarily are assuming the 2A isn’t an individual right). Secondly, the SCOTUS has already ruled in re: other issues that the BOR is indeed in effect in the District…it’s pretty well a moot point and not much of an argument. The majority could barely contain their contempt for the silliness of the dissenting opinion; it’s also pretty telling that that was her only real attempt at a rebuttal.