The Second Amendment is Back, Baby!: Parker v. District of Columbia

JB

My own view, based on admittedly limited research (one can spend one's entire career on the history of this Amendment) is that the Second Amendment protects both a right to keep and bear arms for use in militia service and an individual right to keep and bear arms for purposes of self-defense. The key issue for me is whether the words "keep and bear arms" should be understood in their ordinary sense (one might "keep" arms for several purposes unrelated to militia service) or whether they should be understood as a generally acknowledged term of art that applies only to service in state militias. If the former view prevails, the original meaning points to an individual rights position; if the latter view prevails, the collective rights view-- that the amendment protects only militia service-- is more plausible. The language of the Amendment's preamble-- itself a matter of great controversy-- is not dispositive on this question; to me it is simply additional evidence of usage and of the principles underlying the amendment.

The historical sources on this and almost every other question regarding the Second Amendment are hotly debated and the history is not as clear as we might want it to be. But, as in most cases of historical dispute, we must do the best we can. My current sense is that there is enough data to suggest that the term was not generally understood solely as a limited term of art, which makes the individual rights view more plausible.

I tend to agree with my colleague Akhil Amar's view that Reconstruction sheds additional light on this question, tipping the scale further toward the individual rights view. Whether or not the terms "keep and bear arms" included individual rights of self-defense in 1791, it was assumed that these rights were among the privileges and immunities of citizens that the Fourteenth Amendment was designed to protect. That is to say, the framers of the Fourteenth Amendment assumed that the Second Amendment had an individual rights component, and they sought to incorporate this individual rights component into the Fourteenth Amendment. The Privileges or Immunities Clause was written to declare that people held certain rights by reason of being a U.S. citizen. If the framers of the Fourteenth Amendment believed that the individual right to bear arms was a privilege or immunity of national citizenship, that is a reason to believe that the individual as well as the collective right applies against the federal government today, even if the Fourteenth Amendment is directed at state governments.

Remarkably, Judge Silberman's majority opinion in Parker is not as convincing as one would want for such a high profile case; indeed despite its length it has a sort of rushed, impatient and ipse dixit quality. And the arguments it does make aren't always the best ones. For example the opinion argues for the individual rights view by claiming that references to the right of "the people" in the Constitution signal an individual right rather than a structural or collective right. It also argues that the Second Amendment is an individual right because it is found in the Bill of Rights and the Bill of Rights is a set of individual rights as opposed to a set of structural guarantees. Both of these claims are dubious. The words "the people" don't always signify a collective or structural concern, but at least sometimes they do. It also is quite ahistorical to read the Bill of Rights as merely a collection of individual rights guarantees. (On this point Amar's book on the Bill of Rights is quite important.).

Surprisingly, Silberman also doesn't do a very good job of articulating or proving the original meaning of "keep and bear arms." He relies mostly on citations to other court decisions, including the Fifth Circuit's extensive discussion in its Emerson decision. That's fine as far as it goes, but if he really wanted to make a convincing original meaning argument it would be better to cite more actual sources; moreover, some of the sources he does quote to prove original meaning aren't necessarily the most convincing ones, at least if his goal is to show generally accepted uses of words in 1791.

Quite apart from these quibbles, there is the difficulty that Silberman, as a lower court judge, is still bound by the Supreme Court's 1939 decision in United States v. Miller, which is generally thought to embrace the collective rights view. His attempted distinction of Miller is not all that persuasive and one suspects that Silberman just believes that Miller was wrongly decided. He is entitled to his opinion as a citizen, but not as a lower court judge. However, treating Miller in this way will presumably help increase the chances of review by the Supreme Court, which, one suspects, is the whole point.

Will the Supreme Court take the case, reverse Miller and adopt the individual rights view? Let me put aside for a moment what I think the Constitution requires. I would predict that one side effect of adding Roberts and Alito to the Court is greatly to increase the chances that the Court will adopt some form of the individual rights theory. Whether that means they would strike down most gun control laws-- D.C.'s being one of the strictest-- is a different matter. Individual rights are still subject to reasonable regulations. A total ban on private possession of ordinary firearms might fall afoul of the Amendment, but virtually anything less than that might be upheld, depending on the level of scrutiny that the Court sets. The conservative social movements that have dominated the Republican Party-- and hence American politics-- for the last several decades have tended to support the individual rights interpretation of the Second Amendment. Nevertheless, if the Supreme Court gave them what they wanted, for example, by striking down D.C.'s gun control law, it might help generate a significant backlash from the opposite direction. (In addition, many Congressmen and Senators who live and work in D.C. might suddenly sit up and take notice if they believed that guns would now be freely available there.) We have been so used to seeing backlash from the right these days that we don't expect that it might also come from the left. But as the last election cycle suggests, the times they are a changing.