Gunfight at D C Corral

...In a 2001 memorandum opinion from Attorney General John Ashcroft, the Department of Justice officially adopted the individual rights understanding...

...Prior to the recent Parker decision, the only federal circuit adopting the individual rights approach was the Fifth Circuit in United States v. Emerson in 2001 (a case discussed by Nelson Lund in this magazine before the decision came down, “Taking the Second Amendment Seriously,” July 24, 2000...

...Plaintiff Tom G. Palmer is a gay man who was once assaulted for his sexual orientation and able to ward off his attackers with a handgun...

...Finally, the court concludes that the Second Amendment’s endorsement of a well-armed militia “is narrower than the guarantee of an individual right to keep and bear arms” and that “the amendment does not protect ‘the right of militiamen to keep and bear arms,’ but rather ‘the right of the people.’” As the court observes, “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...

...Most recently, in the 2002 Silveira case, the Ninth Circuit held that “bear arms” refers only to carrying weapons in military service and, thus, the Second Amendment protects only collective rights...

...The text of that amendment sounds straightforward enough: “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed...

...Yet courts and constitutional scholars have filled forests’ worth of paper arguing over its meaning...

...Given the current makeup of the Court, many in the individual rights camp certainly hope it will...

...In their variety, these plaintiffs exemplify why the right to self-defense is, as the Framers recognized through the plain language of the Second Amendment, a foundation upon which the other rights we enjoy rest...

...In Parker, the D.C...

...The first disputed provision bars registration of handguns...

...During his Senate confirmation hearing, however, Chief Justice John Roberts, though he acknowledged the “open issue” of the Second Amendment, declined to express an opinion because of the conflict between circuits and his belief that the Supreme Court would eventually decide the matter...

...Plaintiff Dick Anthony Heller is a police officer, also living in a dangerous neighborhood and, thus, a target for retributive violence when off duty and unarmed...

...Should the matter reach the High Court, the split between circuits makes it more likely the Court would agree to hear the case...

...the amendment does not grant the right, but merely states that it is not to be infringed...

...Contenders may have to do more this cycle than don fatigues and go duck hunting to placate voters who care about their right to self-defense...

...Individual rights” theorists argue that the amendment protects a private citizen’s right to use weapons for lawful purposes such as self-defense...

...Yet in a city declared by its police chief to be in a state of “crime emergency” last summer, where being followed home from Metro stops is a not uncommon experience for female residents, where, according to FBI statistics, 3,577 burglaries were reported in 2005, and where even nonlethal Taser guns are a prohibited means of self-defense, Blackstone’s description rings powerfully true...

...The second forbids “carrying” a pistol, even inside one’s home...

...Regardless, the media attention on a Second Amendment Supreme Court case could make gun laws a centerpiece in the upcoming presidential election, especially if a vacancy on the Court occurs during the campaign...

...neighborhood who has been threatened by drug dealers for “trying to make her neighborhood a better place to live...

...The third requires that pistols be kept unloaded and disassembled, or bound by a trigger lock at all times...

...Under prior administrations, the department has gone both ways...

...All prevent an individual from lawfully defending his or her home against an intruder...

...Erin Sheley is a writer and attorney in Washington, D.C...

...The court points out the word “bear,” as defined in dictionaries and used in the 1787 Pennsylvania ratifying convention, encompasses a wide range of meanings, most prominently “to carry,” and is not restricted to the specific military meaning asserted by the District of Columbia to support its collective rights view...

...And, as a look at the circumstances of the Parker plaintiffs shows, that group of voters is more diverse than commonly thought...

...In an opinion by Senior Circuit Judge Laurence Silberman, over a dissent by Judge Karen Henderson, the panel struck down the provisions as violating the Second Amendment...

...First, as the court notes, “the most important word is the one the drafters chose to describe the holders of the right—‘the People.’” No one would, for example, seriously argue that the First Amendment’s protection of free speech (or the Fourth Amendment’s prohibition of unreasonable searches and seizures) does not protect “the People,” as individuals, against government encroachments...

...The court also finds that “‘keep’ is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use...

...The positions of the other justices also remain unclear...

...Collective rights” theorists claim the amendment protects only states’ rights to maintain militias without federal interference...

...It is not surprising, then, that the most recent shots in the jurisprudential struggle over the Second Amendment have been fired here in “gun-free” Washington...

...State appellate courts are likewise divided: Courts in seven states have held for an individual rights interpretation (Colorado, Kentucky, Louisiana, Montana, Tennessee, Washington, and West Virginia), while ten others have adopted the collective rights theory (Massachusetts, Minnesota, Nevada, New Jersey, New York, North Carolina, Ohio, Texas, Utah, and Illinois...

...And the debate has extended beyond the bench...

...The Court’s most thorough construction of the provision, in the 1939 case United States v. Miller, did not turn on whether the amendment applies to individual citizens, but on whether a short-barreled shotgun qualifies as a protected “arm...

...by Erin Sheley When Blackstone described the right to carry arms as part of the natural right of “self-preservation,” he could not have envisioned the situation of a professional woman coming home late to an empty Washington, D.C., apartment...

...gun laws that together effectively prohibit private ownership of handguns in the nation’s capital...

...On March 9, a panel of the U.S...

...And the Constitution assumes that, like the right to free speech, the right to bear arms existed before the formation of government...

...Plaintiff Shelly Parker is a resident of a high-crime D.C...

...Professor Laurence Tribe’s most recent constitutional law treatise supports the individual rights view, as do, as the Parker court notes, “the great legal treatises of the nineteenth century...

...In the absence of Supreme Court guidance, a majority of federal appellate courts have adopted the collective rights model...

...When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text...

...panel held that the language of the Second Amendment plainly protects an individual right...

...Perhaps the most eloquent proponent of the individual rights view was Ninth Circuit Judge Alex Kozinski, in dissent from his court’s denial of rehearing in Silveira: Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted...

...Beyond its importance for D.C...

...As a Third Circuit judge, Justice Samuel Alito, dissenting in the 1996 Rybar case, argued that the federal law criminalizing machine gun possession was unconstitutional, though he cited the Commerce Clause, not the Second Amendment...

...citizens, Parker may encourage the Supreme Court, at last, to articulate a unified Second Amendment jurisprudence after two centuries of uncertainty...

...But . . . when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there...

...This right flowed, during the constitutional project of young America, from the right to “have Arms” in England’s 1689 Bill of Rights, which described that right as belonging to “Subjects...

...Court of Appeals for the District of Columbia Circuit decided Parker v. District of Columbia, in which the plaintiffs challenged three D.C...

...In his book A Matter of Interpretation, Justice Antonin Scalia seems to support the individual rights model, and Justice Clarence Thomas has observed, in a concurring opinion, “a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the amendment’s text suggests, a personal right...

...In sharp contrast to the bloated Supreme Court jurisprudence growing out of most other amendments, though, the High Court has been nearly silent on the proper interpretation of the Second...