Peter Ferrara: Conservative Win: Second Amendment victory in D.C


ACRU Staff


March 17, 2007

This op-ed originally appeared on National Review on March 12, 2007.

The conservative movement won an historic victory last Friday. In the case of Parker v. District of Columbia, the U.S. Court of Appeals for the D.C. Circuit ruled that the Second Amendment to the U.S. Constitution does, indeed, protect a right for individual citizens to keep and bear arms for self-defense and other legal uses. Consequently, the court struck down a nettle of D.C. gun-control laws which effectively prohibited gun ownership and use within the District by law-abiding citizens.

The media played the case as if it was primarily a local issue for the D.C. area. But this case has national, historic significance because of the doctrine it announced.

For decades now, liberals have argued that the Second Amendment did not protect an individual right to gun ownership and use. Part of the problem they have now is that they never came up with a good explanation for what the amendment does mean if it does not protect just such an individual right.

Does it protect a constitutional right for the states to maintain their own armed militias? Federal law provides that the militias are under the ultimate control of the federal government, and any such state right was certainly not respected during the Civil War. Would liberals really have wanted Alabama and Mississippi to have had such a right during the civil rights struggles of the 1950s and 1960s?

Does it protect a right of soldiers serving in a state militia to be armed? Did the Founders think there was a problem of militias trying to send their troops into battle while denying them arms? Is that what the Founders meant to list second in the Bill of Rights?

The one thing liberals have long been sure of is that anyone who thinks the Second Amendment does protect an individual right to gun ownership and use is an extremist nut. Last Friday, the D.C. Circuit terminated that notion.

The court reached its decision by thorough analysis of the language and history of the amendment. The operative phrase of the Amendment, “the right of the people to keep and bear arms shall not be infringed,” grants a clear individual right. The prefatory phrase “A well-regulated militia being necessary to the security of a free state,” does not as a matter of plain English take away the right clearly stated in the rest of the Amendment. Indeed, what sense would the Amendment make if it did?

As the court said,

The Amendment does not protect ‘the right of militiamen to keep and bear arms,’ but, rather ‘the right of the people.’ The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias. Again, we point out that if the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit—and thus the most appropriate to express in a political document.

The court did not announce an absolute right to gun ownership and use. That can still be regulated to a reasonable though not unrestricted degree. But since the Amendment does provide some constitutional protection, private gun ownership and use cannot be banned completely, as it effectively was in the District.

The Parker case is not the first time a major court has held that the Second Amendment protects an individual right to keep and bear arms, contrary to liberal dogma. In 2001, the Fifth Circuit in United States v. Emerson also argued quite thoroughly for this view. But in that case the court held that the federal regulatory statute at issue, regarding interstate transfer of firearms in commerce, was not unconstitutional under Second Amendment rights. Moreover, the Emerson opinion has been treated as an aberration by Texas cowboy yahoos.

Parker is the first time a federal court has struck down a major gun-control regime such as the one in D.C. Moreover, we are now dealing with the highly sophisticated D.C. Circuit that handles all the cases coming out of the federal bureaucracy. With this Parker decision, conservatives have now turned the corner on this long-running intellectual battle with the Left.

Of course, the Supreme Court will ultimately decide this case, and could nullify this victory. But the votes could be in the Second Amendment’s favor. There are four certain votes to affirm there, and I doubt that Justice Anthony Kennedy, appointed by President Reagan, will deny them their majority. This is a case that Justice Breyer’s former Harvard Law School colleague, the liberal constitutional-law expert Lawrence Tribe, has argued for some time that the conservatives are right on; Breyer and Souter may just go with the Second Amendment tribe.

— Peter Ferrara is general counsel for the American Civil Rights Union, on whose behalf he filed briefs in the Parker supporting gun-ownership rights.



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