Sunday, March 18, 2007

D.C. Gun Ban Ruled Unconstitutional

As many of you know, this month the D.C. Circuit Court of Appeals ruled that the long-standing Washington D.C. gun ban was unconstitutional under the Second Amendment. In deciding the case of Parker, et. al. v. D.C., the court concluded, “that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. […] The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia."

Amen, my black-robed brothuhs! In 2001 the Fifth Circuit Court of Appeals unanimously came to the same individual rights conclusion in U.S. v. Emerson.

Of course the gun banners will say that this recent decision (as they did with Emerson) contradicts their favorite case, U.S. v. Miller. In this 1939 case two suspected moonshiners were charged with violating the National Firearms Act of 1934 (NFA) by transporting an unlicensed sawed-off shotgun across state lines. In Miller the Supreme Court said that the NFA could stand constitutional muster. It concluded: "In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

That’s hardly the stinging rebuke of the individual rights interpretation that the gun-grabbers make the Miller decision out to be. In fact, you could interpret the decision as meaning that individuals have a right to own only military style weapons and no others.

However you interpret the U.S. v. Miller decision, it’s important to note that the Supreme Court rendered its decision without ever hearing the defense’s argument. Neither the defendants nor their legal counsel appeared at the U.S. Supreme Court! That’s why the court prefaced its decision with, "In the absence of any evidence…” The lead defendant Jack Miller’s bullet-riddled corpse was found shortly before he could testify before the court and the other, Frank Layton, quickly rolled over and accepted a plea deal. (Convenient, eh?)

If the Parker case goes to the Supreme Court it may give us a long overdue chance for a fair hearing of a Second Amendment case by that body, one where BOTH sides can present their case. But if I was one of the Parker claimants, I’d start filling out those organ donor cards just in case.

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