The U.S. Court of Appeals for the District of Columbia Circuit has just declared Washington, D.C.’s gun ban unconstitutional under the federal Constitution’s Second Amendment, which protects the right to keep and bear arms. In Parker v. District of Columbia, the court held that the Second Amendment protects individuals’ right to possess guns, not just states’ rights to do so through their state militia. The case was argued by Alan Gura and brought with the assistance of Cato legal scholar Robert Levy.
Supporters of gun control often claim that the Second Amendment doesn’t protect individuals’ rights to possess a gun, only the collective right of a state militia to do so, since the Second Amendment refers to the right of the “people” to bear arms and cites the importance of maintaining a well-regulated state militia. Thus, they argue, the Second Amendment protects only states, not individuals, against federal gun control legislation.
But that argument overlooks the fact that state constitutions’ bills of rights, which are expressly designed to protect individuals’ rights against their very own state, often contain the same language as the federal Second Amendment. State constitutions’ gun-rights provisions likewise often speak of the “people” as having the right to keep and bear arms, and the importance of a well-trained state militia. These provisions can scarcely guarantee a “collective right” of the state, rather than an individual right, since their entire purpose is to limit a state’s power over its own citizens.
Supporters of gun control also often cite a Nineteenth Century Supreme Court decision, the Cruikshank case, saying that the Second Amendment doesn’t protect against state (as opposed to federal) gun control legislation. But they neglect to mention that that same decision also claimed that the First Amendment and other provisions of the federal Constitution’s Bill of Rights don’t apply to the states, either — a position later repudiated by the Supreme Court in a series of cases beginning with Gitlow v. New York (1925), which held that free speech rights, and most of the rights contained in the Bill of Rights, apply to state governments rather than just the federal government.
One could try to argue, as some gun-control supporters do, that gun-rights, unlike most other rights guaranteed by the Bill of Rights, are not important enough to be binding against state governments. But for better of for worse, the Founding Fathers were gun-nuts. Even Supreme Court Justice Joseph Story, a staunch supporter of a strong federal government, referred to the right to keep and bear arms as the “palladium” of our liberties.
UCLA Law Professor Eugene Volokh predicts that the Supreme Court will hear an appeal of the decision striking down the D.C. gun ban, even though he agrees with it, because it conflicts with the rulings of other courts, which have held that the Second Amendment only protects the “collective right” of a state to possess guns for its state militia.
Prominent appellate lawyer Howard Bashman summarizes the decision and the judges’ reasoning here.