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Unholster The Second Amendment

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By ROBERT A. LEVY

Published: November 26, 2007

It's been 68 years since the U.S. Supreme Court examined the right to keep and bear arms secured by the Second Amendment. It's been 31 years since the District of Columbia enacted its feckless ban on all functional firearms in the capital. It's been eight months since the second most important court in the country, the U.S. Court of Appeals for the District of Columbia Circuit, declared the D.C. ban - among the most restrictive in the nation - unconstitutional. The obvious incongruity of those three events will be resolved soon.

The Supreme Court has decided to review the circuit court's blockbuster opinion in Parker vs. District of Columbia, the first federal appellate opinion to overturn a gun control law on the ground that the Second Amendment protects the rights of individuals.

The stakes are immense. Very few legal questions stir the passions like gun control. And this round of the courtroom battle will be fought during the heat of the 2008 election.

Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged Second Amendment violation might have occurred. Equally important, if the Supreme Court affirms the D.C. circuit's holding, state gun control laws across the nation could be vulnerable to constitutional attack. Almost no one argues that Second Amendment rights are absolute. After all, under the 1st Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice. Similarly, gun regulations can be imposed on some weapons (for example, missiles), some people (for example, preteens) and some uses (for example, murder).

Meanwhile, the high court also will have to reexamine its 1939 gun case, United States vs. Miller, which generated more heat than light regarding the Second Amendment. The core holding of Miller, stripped of confusing clutter, was that protected weapons must be "in common use" and must bear "some reasonable relationship to the preservation or efficiency of a well-regulated militia."

Parker is entirely compatible with that holding. Pistols, which are banned in D.C., are self-evidently "in common use," and they have been carried into battle by American troops in every conflict since the Revolutionary War. But a proper reading of the Second Amendment should not attempt to link each and every weapon to the militia - except to note that the grand scheme of the amendment was to ensure that people trained in the use of firearms would be ready for militia service.

Significantly, the Second Amendment refers explicitly to "the right of the people," not the rights of states or the militia. And the Bill of Rights is the section of our Constitution that deals exclusively with individual liberties. That is why there has been an outpouring of legal scholarship - some from prominent liberals - that recognizes the Second Amendment as securing the right of each individual to keep and bear arms.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute and is co-counsel for the plaintiff's and initiated the lawsuit discussed in this column.

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