Second Amendment needs recognition as individual right

Viewed narrowly, the decision March 9 by a federal appeals court to overturn the 1976 District of Columbia law barring the ownership of handguns with just a few exceptions — such as for law enforcement officers in the course of duty — applies only to the District of Columbia. Therefore it has no implication for gun laws in other states.

In the context of the broader ongoing debate over the meaning of the Second Amendment, however, this is an extremely significant case that will become even more significant if it is appealed to the U.S. Supreme Court.

We hope it is.

The Second Amendment reads: “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.”

For most of our history this was interpreted as protecting an individual right — and, moreover, an individual right that existed prior to the adoption of the Constitution or the Bill of Rights, which those documents merely acknowledged and protected.

Proponents of gun control laws, however, have argued for several decades that the dependent clause in the amendment, about a well-regulated militia, meant that the right to bear arms (the term “keep” is seldom discussed) applied only to those enrolled in an organized state militia, meaning the right to bear arms is a collective right rather than an individual right.

Indeed, the D.C. government in this case argued that since the district does not have an organized militia, that the Second Amendment is functionally inoperative.

The majority of the three-judge panel in this First Circuit, District of Columbia case, led by Senior Circuit Judge Laurence Silberman, argued that this interpretation flies in the face of the understanding of rights held by the founders and the first Congress, of a clear understanding of the meaning of the amendment’s wording, and of settled interpretation of other parts of the Bill of Rights.

The case was brought on behalf of six Washington, D.C., citizens who desired to possess handguns for personal protection; the case was financed by Cato Institute scholar Robert Levy.

When the First Amendment, for example, protects the right of “the people” peaceably to assemble, it clearly protects an individual right. The Fourth Amendment’s reference to the right of the “people” to be secure in their persons and property protects an individual right. And so on.

The court’s decision in this case is clearly correct, as even liberal scholars like Harvard’s Lawrence Tribe and Alan Dershowitz reluctantly have conceded.

The Washington, D.C., government will no doubt request that the entire D.C. Circuit rehear the case en banc (by all the judges, not just a three-judge panel), hoping for a different outcome.

We hope the case gets to the Supreme Court so this important right is nationally recognized as an individual rather than a collective right.