The Post Giveth, and the Post Taketh Away

The other day, in a late update, I noted the Post editorial page has accurately reported that Joe Wilson's public claims about his trip to Niger were debunked by the Senate Select Intelligence Committee, a small counterpoint to the false daily reporting of Amy Goldstein and Carol Leonnig. But in Dangerous Ruling, the editorial page misrepresents Second Amendment jurisprudence. The editorial states:

The Supreme Court, in its landmark 1939 decision United States v. Miller, stated that the Second Amendment was adopted "with obvious purpose" of protecting the ability of states to organize militias and "must be interpreted and applied with that end in view."

Ah, but what's a militia, and how does its definition apply to that ruling? In both Friday's disappeared online story and today's front-pager, the Post's reporters say the District of Columbia argues a militia is "just that," as if that cleared things up. But as law professor and blogger Eugene Volokh has written in many venues, including this 1998 testimony:

...One of the remaining five cases -- and the only extended 20th-century discussion of the right -- is United States v. Miller (1939), which held that the right extended only to weapons that were rationally related to the preservation of the militia. 16   But the Court emphatically did not hold that the right belonged only to the state or the National Guard.   Rather, it reaffirmed that the "militia" referred to the entire armed citizenry, and considered on the merits a lawsuit that was brought by an individual (Miller), not by a state....

The idea being that individual citizens have the right the bear arms, and, ex officio as citizens you might say, belong to the militia. In US v Miller, the Court ruled the federal government could tax and otherwise regulate sawed-off shotguns without offending the Constitution because such a weapon was unsuited for military-type use and thus not protected for use in "the militia."

The editorial is on firmer ground when it states that Nearly every other federal court of appeals has concurred in that finding, to the extent it means most appellate courts since then have interpreted the Second Amendment as referring to collective rights for citizens enrolled in formal state militias. But the first sentence of the editorial is just wrong:

IN OVERTURNING the District of Columbia's long-standing ban on handguns yesterday, a federal appeals court turned its back on nearly 70 years of Supreme Court precedent to give a new and dangerous meaning to the Second Amendment.

The "70 years" referring to U.S. v. Miller, which does not mean what the editorial thinks it means and which has scarcely been pronounced upon by the Supreme Court since 1939. What the editorial ought to say is that the DC Circuit Court turned its back on nearly 70 years of rulings by other circuit courts. Then we can get into an entertaining discussion about whether those courts turned their backs on more than 160 years of custom, law, authoritative contemporary commentary and explicit precedent at the state level and by the Supreme Court itself.

And while that might not be possible to discuss in a short editorial, it is possible to 1) Correctly describe what you do have room for and B) Use the space in your 1,300-word front-page coverage and the combined resources of David Nakamura, Robert Barnes, Tom Jackman, Elissa Silverman, John Wagner and staff researcher Meg Smith to at least mention the highlights of Second Amendment history.

Which they do not.

Update: Informed comment by Clayton Cramer about exactly how wonderful the DC Circuit Court's ruling is. Don Surber can't help notice DC's combination of restrictive gun laws and high crime rates, and Via Insta, Radley Balko explains the facts of life:

I particularly like this line from the Post editorial:

According to its myth, only criminals have had guns in the city and now law-abiding citizens will be able to arm themselves for protection.

Um, isn't this "myth" true on its face?  If guns are banned in the city, everyone in the city who owns a gun is a criminal.  And if this ruling stands, law-abiding citizens would now be able to arm themselves for protection.

And Blue Crab Boulevard notes past predictions of carnage when gun laws have been relaxed elsewhere. That is to say, unfulfilled predictions.