Second Amendment Back From The Dead In DC

Update: As often happens, washingtonpost.com has erased online history by using the link below to point to Saturday's hard-copy version of the story by David Nakamura and Robert Barnes, rather than the online story blogged by me and Eugene Volokh on Friday night. Nice memory hole you got there, WaPo. Saturday's story still has the amusing "just that" language noted below.

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The brief online-only Appeals Court Guts DC Gun Ban wobbles off the rails a bit after starting well. Here's the lede:

A federal appellate panel today struck down parts of the District's gun law as unconstitutional, ruling that the city cannot bar people from keeping firearms in their homes.

The decision was a victory for six D.C. residents who said they wanted to keep firearms for self-defense. But it could have much broader implications: The case eventually could wind up before the U.S. Supreme Court as a test of the thorny issues surrounding the Second Amendment and the public's right to keep weapons...

Yes indeed. However, reporters Bill Miller and Robert Barnes later write:

In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the position advocated by the District, that a "militia" means just that.

Just what? What's a militia? Volumes have been written about that question, including US Code Title 10, section 11, which says it includes all able-bodied male citizens between 17 and 45 not serving in the organized military. Here's a long Wikipedia article on "the militia;" take your pick from the many choices to guess what Miller and Barnes mean by "just that."

Not that gun-rights guys like me believe the right to bear arms is limited within that band, but still.

They also write:

The Supreme Court addressed the Second Amendment in 1939, but it did not hold that the right to bear arms meant specifically that an individual could do so.

But this is a deeply disputed case waved in the air by both pro- and anti-gunners. What the decision indisputably did was link ownership of arms to their military utility, as noted in this 1998 testimony by law professor Eugene Volokh, known today for his blog Volokh Conspiracy. The case, U.S. v. Miller, addressed whether the National Firearms Act was unconstitutional because it required shotguns shorter than 18 inches to be registered and taxed ($200, real money that was intended to suppress their possession). As noted in this even-handed Wikipedia article, the court ruled:

In 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.

But this just points us right back to what a "militia is," and contra Barnes and Miller, "just that" is not a useful definition.

The Wikipedia article continues:

Gun control advocates claim this case as a victory because it states that ownership of firearms may be restricted. Some further interpret the decision to mean one must be a member of a government-controlled militia in order to be protected, although the court did not state this.

Gun rights advocates claim this case as a victory because it states that ownership of military weapons is specifically protected. Furthermore they frequently point out that short-barreled shotguns have been used in every US military action in history since their invention, and the statement that the judges were not made aware of this should be taken to mean exactly that. None of the Supreme Court justices involved had prior military experience. Since the defense did not appear, there was arguably no way for the judges to know otherwise.

Some argue ^[3] that fundamental issues related to the case were never truly decided because the Hughes court remanded the case "for further proceedings", which never took place -- by the time of the Supreme Court decision, Miller had been killed, and Layton made a plea bargain after the decision was handed down, so there were no claimants left to continue legal proceedings.

Subsequent rulings have been allowed to stand, indicating that short-barreled shotguns are generally recognized as ordinary military equipment if briefs are filed (e.g., see: Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942), describing use of short-barreled shotguns in specialized military units.)

Since then, a number of federal appellate courts have defined the right to bear arms as a "collective" right, rather than the individual right that I and better-educated people including Eugene Volokh endorse. That's part of what makes today's decision by the DC Circuit Court so newsworthy. But the 1939 US v Miller case defended the regulation of a short shotgun because it was a "non-military" gun, not because it was a gun.

As we say at PostWatch, other than that, great story!

Update: Welcome, Volokh Conspiracy! Eugene Volokh kindly notes my post and arches an eyebrow over defining "the militia" as "just that"--

This is either a big editing error — the "that" in "means just that" referring to a definition given three sentences and two paragraphs earlier — or an unwarranted bit of snide (snidish?) editorializing.

You make the call. Volokh quickly lists four definitions of "militia" and elaborates on how the Supreme Court has construed the term. Read it all, but hint: It's not the National Guard.

Comments

[peter jackson]

It also couldn't have helped that Miller was a drifter.

The truth is the Supreme Court has barely ever touched the Second Amendment. Presser was defending to bear a sword at a labor rally. The only halfway damaging ruling to the standard individual rights interpretation was Morton Grove, but then again maybe not. The majority simply ruled that the Second Amendment had yet to be "incorporated," i.e. it hadn't yet been interpreted by the courts in light of the Fourteenth Amendment's admonition to equality before the law, and therefore simply didn't constrain the States or localities.

This latest ruling is bigger than most of us think.

yours/
peter.

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I think it's big. And, frankly, heading to the Supreme Court is extremely worrying.

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In my, admittedly amateur, opinion, it has to go to SCOTUS in order for it to finally resolve this issue across all the courts. As a resident of Chicago, I've been hanging on this court case for awhile now and greet it eagerly.

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