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One Court's Second Amendment Fantasy

Last Tuesday, the United States Supreme Court accepted the District of Columbia's appeal in DC v. Heller, in what could be the most significant Second Amendment case in history. Since then, scores of articles and editorials have discussed the scope and ultimate effect that this case may soon have on America's gun laws and the people who voted for them.

Much less analysis, however, has met the lower-court decision that sparked this debate in the first place. Two judges on the District of Columbia circuit wrote the decision in Parker v. DC [pdf], the first case in American history to strike down any gun law on Second Amendment grounds.

That decision was clearly erroneous for several reasons. Their opinion was an example of judicial activism at its worst - a point I've made many times before - since the Constitution in no way prevents communities from having the gun laws they believe are needed to protect public safety. More specifically, the two-judge majority in Parker ignored longstanding Supreme Court precedent, discounted the express language of the Second Amendment, and substituted its policy preferences for those of the District's elected representatives.

The case was wrongly decided, and the Brady Center has the analysis to prove it.

For your review this week, I will post the Brady Center Legal Action Project's point-by point examination of the Parker decision titled, Second Amendment Fantasy: the D.C. Circuit's Opinion in the Parker Case. To my knowledge, it is the only analysis that provides a detailed refutation of the Parker court's key claims, and a thorough defense of the current state of Second Amendment law.

Over the course of five installments, "Second Amendment Fantasy" reveals the Parker decision as

[A] tangled web of inconsistency, flawed reasoning, distortion of binding precedent, and misunderstood historical materials, all in service to the court's single-minded determination to rewrite the Second Amendment....

Put simply, after this searing critique, the Parker opinion falls of its own weight. You can read for yourself, beginning with today's first installment titled, Mangling Miller: How the Parker Opinion Distorted and Defied Supreme Court Precedent.

An excerpt is presented here, with a link to the full document below.

The 2-1 panel decision by the United States Court of Appeals for the D.C. Circuit in Parker v. District of Columbia made errors of history, errors of law, and errors of logic. But perhaps no error was more fundamental, and troubling, than the court's misinterpretation - and disregard - of the Supreme Court's decision in United States v. Miller, 307 U.S. 174 (1939).

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."

Especially on matters of constitutional interpretation, the first order of business for a federal appeals court is to see if the Supreme Court has spoken on the issue. If it has, the next task is to determine what the Supreme Court said, and what it meant.

The Supreme Court's only extensive discussion of the Amendment is found in its unanimous Miller decision. As Judge Henderson stated in her dissent in Parker, the Miller opinion "unambiguously" set out the Supreme Court's "understanding of the Second Amendment" - that the "militia clause" of the Second Amendment limits the "right to keep and bear arms." Miller's key holding was the Court's unequivocal statement that:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the "well regulated Militia,"] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Accordingly, the Miller Court read the Second Amendment as an indivisible whole, with only one purpose.

Read the whole installment here [pdf].

(Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.)

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For what we are about to receive, may we be truly
10:49 PM on 11/29/2007
Has anyone tried to post comments on the Brady Center site? I did! The above column has no comments, yet there is a message at the bottom that says that the comment site is at maximum and no more comments may be posted. Amusing, isn't it?
Semper fi
08:08 PM on 11/28/2007
Behind all the rhetoric and hyperbole that the Helmke, the VPC and the rest of the anti-gun crowd spew is one dirty secret no one wants to discuss.

Gun control is not about "making the streets safer", "doing it for the children", "saving police officers lives", "the will of the people" or any other empty phrases.

It's about removing a direct physical threat to those in power. Elites, AKA politicians, bureaucrats, political appointees, celebrities, and the wealthy of which Helmke was one, cannot abide the fact that ordinary people could realistically oppose them. To put it more bluntly, kill them because the ordinary people don't like what the elites are doing policy-wise. The gun is the ultimate veto by the powerless on those in power

If history has taught us anything, it has taught us that all it takes is one determined MAN with a weapon to change the course of US and World History.

If the civilian ownership of guns were banned, there would be absolutely no hindrance to any sort of fringe policy that those in power could implement.

IMLHO, that is the real impetus behind gun control.
05:15 PM on 11/28/2007
If the 2nd Amendment guaranteed the right of militias to keep and bear arms, it would say,
"...the right of the states to arm their militias shall not be infringed."

In fact, it says the right of THE PEOPLE to keep and bear arms shall not be infringed.

Amendments 1, 2, 4, and 9 contain the words, "the right of the people."
Amendment 10 says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people."

Now, if the 2A is supposed to be a right of the states, and not a right of "the people," why did the Founding Fathers use the words "the people" in the 2A? The language of the 10th Amendment shows they knew the difference.
04:50 PM on 11/28/2007
The Bill of Righs was written to protect the people from federal government's abuse of its powers under the Constitution.

At the time that happened, in 1789, the respective States already had militia laws. Those laws REQUIRED armed militia duty of all men considered capable of bearing arms. The militiamen generally used arms provided by themselves. They were enrolled in militia units for military discipline.

Would the Framers really have thought it necessary to write an amendment (the Second Amendment) to protect the "right" of individual militiamen to obey their own state militia laws?

Of course not. The Second Amendment was written to support the continuation and effectiveness of the militia as a defensive system -- one in which the people kept and bore arms as a well regulated militia. That goal would calm those (including Jefferson) who feared the militia's possible replacement by a standing army.

It also explains why Jefferson called the Second Amendment a provision "for the substitution of militia for a standing army" --a provision Jefferson had urged upon Madison as a part of the Bill of Rights. (Jefferson to Dr. Joseph Priestley, June 19, 1802)
03:26 PM on 11/28/2007
So Kelli wants to try and link law-abiding gun owners to the KKK.


Try again, gun control was begun on racist values.

02:02 PM on 11/28/2007
Educational video...

This is why you start out a newbie with a .22 rifle and work your way up when you finally drag them out to the range. Enjoy.

12:19 PM on 11/28/2007
Is anyone else here missing the pure entertaiment value of Kelli's histrionic roadapples and bovine excrement?
11:08 AM on 11/28/2007
The case is District of Columbia v. Heller, It's about the right to possess handguns inside your home to protect yourself from invaders that might want to do you or your family harm. What is the big deal?

Paul, the Brady Bunch AKA Handgun Control, Inc “Let’s call them who they really are” and VPC appear to want to tell you what you can do in your home. That it is some how their business. What’s next for The Anti-Freedom groups mentioned above? Cameras to insure you are feeding your children correctly? Midnight raids from the police to make sure that you are practicing amorous in the prescribed Brady/ VPC method, and with the correct race and gender. I have always suspected the anti-freedom groups will eventually want to control your thoughts as well.

Proponents of gun control have not been persuaded by the words written by the founders of our great nation, a right called the Second amendment. To some of the Anti freedom forces it has become a religion to strip this right out of existence. To some the enactment of anti-gun law has become an act of faith,they do not have any idea why they even support anti gun regulation, because their friends told them they do not like firearms.The fact that the Supreme Court has ruled the police have no duty to protect the individual person,means little.
Proponents of gun control believe blindly that their lives will be better defenseless.

Paul and the Brady Bunches worst nightmare, is that blind followers become enlightened. Because the Anti-freedom side’s arguments are so thin that even a little truth negates their reason to exist.

Crime control is not a something the Anti-gun crowd will even entertain. Why because it works. Criminals in jail, not coddled works, What you do to preserve or protect your home or life and family is not just your own personal business, it’s your right!

09:04 AM on 11/28/2007
Paul since I know you do not answer any questions I do this mainly on the hopes you read it and get a migraine for all the people that know the truth. Since the vMiller decision is what you hang your proverbial hat on and think that the Supreme Count should take notice of this. Now I am sure you sleep with a copy of miller under your pillow at night. What about before Miller Paul? Should any of that count? Should the federalist papers count? Should it count that most state constitutions promote an individual right. Or is it that the Brady Bingo group says only vMiller can be read and that is all he court can look at?
11:43 PM on 11/27/2007
Pro-gun scholars twist Constitution
Kenneth Lasson | Special To Baltimore Sun
November 25, 2007

Law professors' agendas are not always so clear. Harvard's Laurence H. Tribe opined, obscurely, that, "the core meaning of the Second Amendment is a populist/republican/federalism one." Writing together, Tribe and Amar said the essence of the right to bear arms is "self-protection." But they both joined other academics in a 2000 New York Times ad, stating, "The law is well-settled that the Second Amendment permits broad and intensive regulation of firearms."
06:51 PM on 11/27/2007
OK Mr. Helmke, let's play this game. According to Miller, a firearm is only protected if it has a purpose in the militia. The case stated that no evidence was provided that short-barreled shotguns had a purpose so they weren't covered even though they had been in use by the military for decades.

I'll ask you even though we know you don't write nor read these blogs:

Which firearms then have a purpose for the militia and why or why not?

Obviously the BC doesn't believe fully or semi-auto rifles, semi-auto shotguns, handguns, or high-powered rifles do even though all are used by the military.

I'm sure I'll keep waiting for an answer
02:31 PM on 11/27/2007
It's this simple, Mr. Helmke. If the phrase "right of the people" cannot apply to the individual in the 2A, it does not apply to the individual anywhere else in the Constitution. It is a legal document, and its definitions must remain consistent. The modifying clause about the militia refers to the fact that is how the US handled its military needs at the time. Also, please spend a few moments looking up the definition of "unorganized militia" in Federal law. Technically, you're only capable of banning children, women, and men over the age of 45 from owning firearms if your concern is the militia being properly regulated.
02:05 PM on 11/27/2007
I believe an honest reading of the 2nd Amendment also derives this outcome: no standing national army. Since a standing national army under command of a despot was supposed to be the most likely source of threat to democratic practice, the founders thought it best that no such army be allowed to exist, except when formed after a congressional declaration of war.

Does this mean that all you stalwart defenders of the Constitution here(or at least this little bit of it)also support the dissolution of the unconstitutional US military?
01:52 PM on 11/27/2007
If the 2A is a right held by the states, how do you explain this?


Am I supposed to believe that the state is imposing a tax on it's own expenditures or is it a tax on individuals?
01:06 PM on 11/27/2007
For anyone advocating that the 2A refers to a state's right to maintain a militia to defend itself against the encroachment of the Federal government, I ask you this.

Since the National Guard trains on federally owned lands, is supplied with firearms bought by the federal government, is paid their wages by the federal government and the executive branch(dubya) has the authority to call forth the National Guard of any state for the adventure of his choosing, do you think that this infringes on a state's right to keep and maintain its own militia?

Think of this way. Do you think we would have won our independence from the British crown if we had to train on British soil and rely on the Brits for our weapons?

Let that one sink in a little.