April 2007

Downrange: 04/07


In early March, one of the most anti-gun courts in the country ruled in favor of the 2nd Amendment — declaring the Washington, D.C., gun ban unconstitutional, and much, much more.

Todd Woodard

Todd Woodard

Two big rulings: The D.C. Circuit Court of Appeals ruled that the Second Amendment is an individual right and concluded that the District of Columbia’s ban on guns in the home is unconstitutional.

According to the majority opinion, "In sum, the phrase ‘the right of the people,’ when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. This proposition is true even though ‘the people’ at the time of the founding was not as inclusive a concept as ‘the people’ today."

Furthermore, the majority opinion said, ""To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Anti-federalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia."

In its ruling, the Court also rejected the argument that the Second Amendment does not apply to the District of Columbia, which has had a gun ban on the books for decades, because it is not a state. The majority opinion concludes that the D.C. prohibition on gun ownership in the home, "amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional."

The ruling is the second time a federal circuit court has upheld the individual nature of the Second Amendment in recent years. In 2001, the Fifth Circuit Court of Appeals unanimously found in the case of U.S. v. Emerson that, "All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans...."

However, other federal courts have disagreed with these rulings, and Supreme Court precedent on the question is thin.

Perhaps these irregularities in rulings will lead to a definitive Supreme Court ruling that the 2nd Amendment is an individual right, not a collective one, as the amendment’s language clearly intends. GT