Hello to Arms

Second Amendment victory in D.C.

Through a combination of possession restrictions and storage requirements, the District of Columbia effectively prohibits the vast majority of Washingtonians from keeping guns in their homes for self-defense. In a sense, then, it was not really surprising when the U.S. Court of Appeals for the District of Columbia Circuit concluded last March that D.C.'s gun law violates the individual right to keep and bear arms. The surprising part was the court's acknowledgment that the Constitution protects such a right.

Because that conclusion is at odds with the rulings of other circuits, the case may lead to a Supreme Court decision that gives new power to a constitutional guarantee long ignored by the federal courts. In May the D.C. Circuit rejected the city's request for a rehearing of the case, which was decided by a three-judge panel.

This is the first time a U.S. circuit court has found a gun control law to be inconsistent with the Second Amendment. Only one other federal appeals court, the 5th Circuit, has even conceded that the Second Amendment has any bearing on laws that restrict individuals' possession and use of guns. The rest of the circuits that have addressed the issue have endorsed the "collective right" interpretation of the Second Amendment, according to which "the right of the people to keep and bear arms" means "the power of states to raise militias."

In response to a lawsuit organized and financed by Cato Institute legal scholar Robert Levy, the D.C. Circuit panel rejected the collective-right theory as historically implausible and inconsistent with the rest of the Constitution. The opinion cited extensive evidence that the Framers and the leading legal scholars of the 19th century saw the amendment as guaranteeing a pre-existing right to use arms for defense against criminals, invaders, and tyrants. "The people's right to arms was auxiliary to the natural right of self-preservation," the court said. "That right existed prior to the formation of the new government under the Constitution."

The court noted that the Bill of Rights is aimed at protecting individuals from an overbearing government and that the phrase "the people" in the First, Fourth, Ninth, and 10th amendments clearly refers to individuals. Given this context, it said, "the Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well."