Restoring the Second Amendment in Parker v. Columbia

JURIST ^ | April 14, 2007 | NA

[neverdem]

Alan Gura [attorney, Gura & Possessky, PLLC, lead counsel for plaintiffs in Parker v. District of Columbia]: "Fear and disinformation have long been the hallmarks of the movement to end private gun ownership. Not surprisingly, the D.C. Circuit's decision in Parker v. District of Columbia, confirming that people have an individual right to keep and bear arms, has elicited outrageous predictions of doom from gun prohibitionists. The Violence Policy Center's Josh Sugarmann neatly summed up the hysteria in warning that Parker 'may mark the beginning of a long, national nightmare from which we will never recover as a nation.'

Allow me to offer a more optimistic view: Parker not only marks the beginning of the end of gun prohibition, it might also reverse the erosion of our individual rights by re-enforcing the primacy of judicial review and preventing sophists from defining rights out of existence.

Most Americans are not Second Amendment absolutists, in either the negative or positive sense of the term. We tend to appreciate the individual right to arms without excessive regulatory harassment, understanding the value that firearms provide in securing individuals from violent criminal predation and precluding a dangerous government monopoly on force. We likewise understand that not all weapons should be possessed by all people at all times.

In practical terms, Parker's correct interpretation of the Second Amendment - a cherished individual right which, like all other rights, is subject to some measure of regulation - happily coincides with the public's appreciation of constitutional liberty.

Parker is thus a bitter pill for prohibitionists who have grown comfortable invoking the language of moderation to conceal their agenda. The laws struck down in Parker prohibited law abiding adult citizens from having any functional firearms, and all handguns, in their homes. Such laws are extremist and absolute, far from reflecting 'common sense,' 'safety,' or 'moderation.' Critics of Parker's immediate result are outside the mainstream of thinking on gun control. And they know that Parker's recognition of the individual right forecloses an incremental regulatory assault on private firearms ownership just as it forecloses Washington, D.C.'s complete ban. Hence their despair.

The individual right to arms will not bring (additional) anarchy to the streets of Washington any more than the First Amendment's free exercise clause has spawned a wave of ritualistic human sacrifice. The ultimate contours of the Second Amendment right will never be fully defined, just as no single court decision will for all time resolve the precise boundaries of free speech under the First Amendment or a 'reasonable search' under the Fourth. Parker means merely that courts will evaluate gun laws the same way that courts review laws touching upon other constitutional rights: by balancing the fundamental individual right at stake against the purported regulatory interest.

At times, the government interest will prevail. For example, laws barring felons from accessing guns will undoubtedly be upheld, and metal detectors for airline passengers are here to stay. But complete bans, arbitrary and capricious interference with the right to arms, and oppressive regulations based on flimsy reasoning with no apparent empirical support or genuine public benefit will yield to the individual right - as they should.

Parker's benefits also extend well beyond the narrow issue of gun regulation. This is not a forum for me to review the immense literature debunking the so-called 'collective right' theory of the Second Amendment. Suffice it to say that the theory tries to jam a square constitutional peg into anti-gun activists' round policy hole. Frustrated by the Constitution's inescapable command, the government's efforts generated gems such as this, from the opposition to our summary judgment motion in Parker:

Conditions and practical considerations, not arcane legal theories and historical excursions, should determine the outcome of cases like the present and the constitutionality of statutes like those at issue here.

There you have it. Who needs the Constitution, anyway? If the government believes it's practical, then let's consider it constitutional. People generally sympathetic to other civil rights, but who are personally uncomfortable with guns or skeptical of the Second Amendment's utility, should pause before welcoming this sort of logic to the Bill of Rights. The alarming theme of expedience-over-law permeates the government's pending petition for en banc review (emphasis added):

How best to control gun violence is a complex topic, with many competing, passionately held views. The politically accountable legislatures . . . . are the best fora for considering such competing views. Whether or not they are correct, constitutional rulings like that of the panel majority severely limit what measures the political branches can take . . .

"Whether or not they are correct?" Imagine if that chestnut were applied to other Constitutional provisions. The Second Amendment reflects one of many policy preferences enshrined in our basic law. None is universally popular. Could the Fourth Amendment be adopted today, with the full acquiescence of drug- and terror- warriors? It's mid-April once again: is everyone still happy with the Sixteenth Amendment? Even the creation of a federal district lacking voting representation in Congress remains controversial today.

Contrary to what city officials believe, it still matters 'whether or not [courts] are correct' in stopping the government from overstepping its constitutional bounds. Gun rights advocates look forward to Parker's positive impact on public safety. Striking down the gun ban will raise the risk to home invaders in Washington, and bring peace of mind to many of the city's vulnerable residents. But Parker's greater ameliorative effects on lawlessness may lie in the decision's affirmation of judicial review as a check on government officials who presume that their 'practical considerations' trump the Constitution."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

[neverdem]

The Second Amendment reflects one of many policy preferences enshrined in our basic law. None is universally popular. Could the Fourth Amendment be adopted today, with the full acquiescence of drug- and terror- warriors?

Parker v. Washington, D.C. in HTML courtesy of zeugma.

http://graphics8.nytimes.com/packages/pdf/national/20070310_gun_decision.pdf

[rellimpank]

-—bflr-

[mvpel]

In practical terms, Parker's correct interpretation of the Second Amendment - a cherished individual right which, like all other rights, is subject to some measure of regulation ...

FALSE. The Second Amendment provides that the right to arms "shall not be infringed." If that doesn't constitute an absolute prohibition against any measure of regulation or prior restraint, I have no idea what does.

The ONLY way in which the right to arms may be stripped is by due process of law, just as the right to personal liberty is removed when someone is convicted of a serious crime and is sent to prison, as punishment.

[Eastbound]

"The ONLY way in which the right to arms may be stripped is by due process of law, just as the right to personal liberty is removed when someone is convicted of a serious crime and is sent to prison, as punishment."

I'd support that statement. Mis-use and you lose it.

The problem is the 'state' wants everyone to believe the state has the power to sue as an injured party. It passes arbitrary laws knowing they are going to be dis-obeyed, insuring a continuing supply of 'criminals' to deal with and fleece.

[Always Right]

If that doesn't constitute an absolute prohibition against any measure of regulation or prior restraint

Well we do know that "Congress shall make no law" did not prohibit Congress from making laws, nor did "The powers not delegated to the United States by the Constitution" stop Congress either.

[Atlas Sneezed]

In practical terms, Parker’s correct interpretation of the Second Amendment - a cherished individual right which, like all other rights, is subject to some measure of regulation ...

**************

FALSE. The Second Amendment provides that the right to arms “shall not be infringed.” If that doesn’t constitute an absolute prohibition against any measure of regulation or prior restraint, I have no idea what does.

The ONLY way in which the right to arms may be stripped is by due process of law, just as the right to personal liberty is removed when someone is convicted of a serious crime and is sent to prison, as punishment.

---

You need to understand how appellate law works (or is supposed to). It is TRUE that the decision says that the 2nd can be subject to restrictions, fees, registration, carry prohibitions, etc. But all that is “dicta” and of no legal import. All that matters is that laws like DCs are unconstitutional under the holding.

It doesn’t matter what the Parker Court SAID in the holding about concealed carry or registration schemes. That was not the issue, and any statement whether favorable or unfavorable to a proper 2nd amendment reading would be legally irrelevant “dicta.”

[archy]

Parker not only marks the beginning of the end of gun prohibition, it might also reverse the erosion of our individual rights by re-enforcing the primacy of judicial review and preventing sophists from defining rights out of existence.

Not so. If the Second Amendment protections of our rights are eliminated, it is not only that portion of the Bill of Rights that is negated, but the entire constitutional contract that becomes moot, null and void. There is then no legitimate constitutional authority for any governmental act or activity, and the constitution cannot then be reauthorized by any simple restoration of the previously affected portion.

Indeed, at such a point, the relevant document becomes not the Constitution, but the Declaration of Independence:

....Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

[neverdem]

Thanks for the correction. We might get there sooner than we think.

The Coming Party Realignment (marxism unbound barf alert)

[Pentagon Leatherneck]

What about the 18th (prohibition) and 22d (repeal of prohibition)? Why didn’t they render the whole thing moot, null and void?

[mvpel]

Because the 18th Amendment was not enacted as a condition necessary for the original 13 colonies to ratify the Constitution and put it into effect, whereas the Bill of Rights was.

If it weren’t for the Bill of Rights, the Constitution would not have passed muster.

[AZRepublican]

Why did Qakers refused to bear arms on religious grounds, but had no objection to privately owning firearms?

hmmmmmmmmmmmmmmmmm

[neverdem]

Why did Qakers refused to bear arms on religious grounds, but had no objection to privately owning firearms?

Did Quakers foresake hunting?

[nonsporting]

If the Second Amendment protections of our rights are eliminated, it is not only that portion of the Bill of Rights that is negated, but the entire constitutional contract that becomes moot, null and void.

Your first name wouldn't be "Anne", would it? (Couldn't resist.)

The dissenting opinion is a frightening revelation of mindset. These pukes really believe they are above the Constitution.

It's getting close, Claire.

[archy]

Your first name wouldn't be "Anne", would it? (Couldn't resist.)

No. You may be thinking of another FReeper.

The dissenting opinion is a frightening revelation of mindset. These pukes really believe they are above the Constitution.

Won't they be surprised when they run into those who believe they are not. We win!

It's getting close, Claire.

We have noticed.

[Lurker]

Not so. If the Second Amendment protections of our rights are eliminated, it is not only that portion of the Bill of Rights that is negated, but the entire constitutional contract that becomes moot, null and void.

Bingo. Although some say that point has already been reached.

"America is at that akward stage. It's too late to work within the system, and too early to start shooting the bastards." Claire Wolfe

L

[archy]

"America is at that akward stage. It's too late to work within the system, and too early to start shooting the bastards." Claire Wolfe

Indeed. Though since my edition was published in 1999, it's obviously now much later than when CW wrote that.

"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards. On the road to tyranny, we've gone so far that polite political action is about as useless as a miniskirt in a convent. ...

"Something's eventually going to happen. Government will bloat until it chokes us to death, or one more tyrannical power grab will turn out to be one too many. ... Maybe it'll be one more round of 'reasonable gun control' or one more episode of burning children to death to save them from 'child abuse.' [i.e Waco] Whatever. Something will snap ...

"Until then, what do you do if you ... don't want to be a Good Little Citizen begging an unhearing congresscritter to give back the rights he and his buddies swiped from you? ('Dear Congressman Baron: You're such a busy and important person, I'm sure this little matter has just slipped your mind temporarily. But 90 percent of the federal government is unconstitutional. ... I'm sure you'll want to abolish all the unauthorized agencies and programs right away. Please don't forget to repeal all the illegal laws and get rid of the taxes while you're at it' ..."

[Lurker]

"Something's eventually going to happen"

Yep. Some of us say 'something' already has.

We're just waiting for the masks to come all the way off.

L