When a federal appeals court overturned D.C.’s 30-year-old gun ban in a landmark 2-1 decision, Washingtonians got back their basic constitutional right to defend themselves. But the majority on the U.S. Court of Appeals for the District of Columbia also did something considered extraordinary today: It based its ruling on the actual text of the Second Amendment.
Writing for the majority, Judge Laurence Silberman noted that the “second comma divides the Amendment into two clauses; the first (‘A well regulated Militia, being necessary to the security of a free State,’ …) is prefatory, and the second (‘… the right of the people to keep and bear Arms, shall not be infringed.’) operative.” In other words, the first clause explains the reason why the government should not infringe upon the specific rights detailed in the second clause.
Such a close, careful reading of the Constitution is almost unheard of these days. Activist judges and attorneys want to stretch the Constitution to fit their own objectives rather than those of the founding document.
The gun ban ruling mentions the “sophisticated collective right” model now in vogue in academic and legal circles, which defines Second Amendment rights in collective, not individual, terms. Do that with the First Amendment, however, and it is clear how ridiculous it would be to grant freedom of speech only to groups organized by the government. But that’s essentially been the accepted interpretation of the Second Amendment for the past 70 years.
The original case challenging the city’s strict 1976 gun ban, was brought by six D.C. residents, including a guard at the Federal Judicial Center who wasn’t allowed to register a handgun to guard his own home. When defending your family from felons is itself a felony, common sense has long since disappeared. As pro-gun rights analyst John Longenecker put it, “The armed citizen is the original homeland security.” And since citizen-organized militias common during the colonial era no longer exist, the District’s gun ban made the Second Amendment “a dead letter” — until March 9, when the constitutional balance was righted.
The District will appeal to the U.S. Supreme Court. Then, we will see the city that demands all the privileges of statehood invoking dissenting Judge Karen Henderson’s argument that the Bill of Rights doesn’t apply because D.C. is not a state. Again, try that with the First Amendment.
The Constitution has been ignored for so long that it’s startling when a court does what it is supposed to do: base its ruling on the original text. May the gun ban ruling herald more good things ahead in our legal system. Trial lawyers, be warned.
