White_Male_Canada
03-09-2007, 09:22 PM
So much for the socialist "collective rights" theory 8)
Appeal from the United States District Court
for the District of Columbia
No. 04-7041
SHELLY PARKER, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA AND
ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA, APPELLEES
We start by considering the competing claims about the
meaning of the Second Amendment’s operative clause: “the
right of the people to keep and bear Arms shall not be
infringed.” Appellants contend that “the right of the people”
clearly contemplates an individual right and that “keep and bear
Arms” necessarily implies private use and ownership.
In determining whether the Second Amendment’s guarantee
is an individual one, or some sort of collective right, the most
important word is the one the drafters chose to describe the
holders of the right—“the people.” That term is found in the
First, Second, Fourth, Ninth, and Tenth Amendments. It has
never been doubted that these provisions were designed to
protect the interests of individuals against government intrusion,
interference, or usurpation.
The District’s (D.C.) argument, on the other hand, asks us to read
“the people” to mean some subset of individuals such as “the
organized militia” or “the people who are engaged in militia
service,” or perhaps not any individuals at all—e.g., “the states.”
See Emerson, 270 F.3d at 227. These strained interpretations of
“the people” simply cannot be squared with the uniform
construction of our other Bill of Rights provisions. Indeed, the
Supreme Court has recently endorsed a uniform reading of “the
people” across the Bill of Rights. In United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990).
In sum, the phrase “the right of the people,” when read
intratextually and in light of Supreme Court precedent, leads us
to conclude that the right in question is individual.
The wording of the operative clause also indicates that the
right to keep and bear arms was not created by government, but
rather preserved by it.
Because the right
to arms existed prior to the formation of the new government,
see Robertson v. Baldwin, 165 U.S. 275, 280 (1897) (describing
the origin of the Bill of Rights in English law), the Second
Amendment only guarantees that the right “shall not be
infringed.” The correspondence
and political dialogue of the founding era indicate that arms
were kept for lawful use in self-defense and hunting.
The
premise that private arms would be used for self-defense accords
with Blackstone’s observation, which had influenced thinking
in the American colonies, that the people’s right to arms was
auxiliary to the natural right of self-preservation.
The District insists that the phrase “keep and bear Arms”
should be read as purely military language, and thus indicative
of a civic, rather than private, guarantee. The term “bear Arms”
is obviously susceptible to a military construction. But it is not
accurate to construe it exclusively so. First, the word “bear” in
this context is simply a more formal synonym for “carry,” i.e.,
“Beware of Greeks bearing gifts.” The Oxford English
Dictionary and the original Webster’s list the primary meaning
of “bear” as “to support” or “to carry.” See Silveira, 328 F.3d
at 573 (Kleinfeld, J.) However, there are
too many instances of “bear arms” indicating private use to
conclude that the drafters intended only a military sense.
One authority cited by the District has attempted to equate
“keep” with “keep up,” a term that had been used in phrases
such as “keep up a standing army” or, as in the Articles of
Confederation, “every state shall keep up a well regulated and
disciplined militia . . . .” See Wills, supra, at 66. The argument
that “keep” as used in “the right of the people to keep . . . Arms”
shares a military meaning with “keep up” as used in “every state
shall keep up a well regulated militia” mocks usage, syntax, and
common sense. Such outlandish views are likely advanced
because the plain meaning of “keep” strikes a mortal blow to the
collective right theory.
The parties generally agree that the prefatory clause, to
which we now turn, declares the Second Amendment’s civic
purpose—i.e., insuring the continuance of the militia
system—and only disagree over whether that purpose was
exclusive. The parties do attribute dramatically different
meanings to “a well regulated Militia.” Appellants argue that
the militia referenced in the Second Amendment’s prefatory
clause was “practically synonymous” with “the people”
referenced in the operative clause. The District advances a
much more limited definition.
As the foregoing makes clear, the “well regulated Militia”
was not an elite or select body. See Silveira, 328 F.3d at 577-78
(Kleinfeld, J.). While some of the founding fathers, including
George Washington and Alexander Hamilton, favored such
organizations over a popular militia, see THE ORIGIN OF THE
SECOND AMENDMENT at xlvii (David E. Young ed., 2d ed.
1995), the Second Congress unambiguously required popular
participation. The important point, of course, is that the popular
nature of the militia is consistent with an individual right to keep
and bear arms: Preserving an individual right was the the best way
to ensure that the militia could serve when called.
We think the Second Amendment was similarly structured.
The prefatory language announcing the desirability of a wellregulated
militia—even bearing in mind the breadth of the
concept of a militia—is narrower than the guarantee of an
individual right to keep and bear arms. The Amendment does
not protect “the right of militiamen to keep and bear arms,” but
rather “the right of the people.” The operative clause, properly
read, protects the ownership and use of weaponry beyond that
needed to preserve the state militias. Again, we point out that if
the competent drafters of the Second Amendment had meant the
right to be limited to the protection of state militias, it is hard to
imagine that they would have chosen the language they did. We
therefore take it as an expression of the drafters’ view that the
people possessed a natural right to keep and bear arms, and that
the preservation of the militia was the right’s most salient
political benefit—and thus the most appropriate to express in a
political document.
To summarize, we conclude 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 civic purpose was also a political expedient
for the Federalists in the First Congress as it served, in part, to
placate their Antifederalist opponents. 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.
Appeal from the United States District Court
for the District of Columbia
No. 04-7041
SHELLY PARKER, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA AND
ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA, APPELLEES
We start by considering the competing claims about the
meaning of the Second Amendment’s operative clause: “the
right of the people to keep and bear Arms shall not be
infringed.” Appellants contend that “the right of the people”
clearly contemplates an individual right and that “keep and bear
Arms” necessarily implies private use and ownership.
In determining whether the Second Amendment’s guarantee
is an individual one, or some sort of collective right, the most
important word is the one the drafters chose to describe the
holders of the right—“the people.” That term is found in the
First, Second, Fourth, Ninth, and Tenth Amendments. It has
never been doubted that these provisions were designed to
protect the interests of individuals against government intrusion,
interference, or usurpation.
The District’s (D.C.) argument, on the other hand, asks us to read
“the people” to mean some subset of individuals such as “the
organized militia” or “the people who are engaged in militia
service,” or perhaps not any individuals at all—e.g., “the states.”
See Emerson, 270 F.3d at 227. These strained interpretations of
“the people” simply cannot be squared with the uniform
construction of our other Bill of Rights provisions. Indeed, the
Supreme Court has recently endorsed a uniform reading of “the
people” across the Bill of Rights. In United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990).
In sum, the phrase “the right of the people,” when read
intratextually and in light of Supreme Court precedent, leads us
to conclude that the right in question is individual.
The wording of the operative clause also indicates that the
right to keep and bear arms was not created by government, but
rather preserved by it.
Because the right
to arms existed prior to the formation of the new government,
see Robertson v. Baldwin, 165 U.S. 275, 280 (1897) (describing
the origin of the Bill of Rights in English law), the Second
Amendment only guarantees that the right “shall not be
infringed.” The correspondence
and political dialogue of the founding era indicate that arms
were kept for lawful use in self-defense and hunting.
The
premise that private arms would be used for self-defense accords
with Blackstone’s observation, which had influenced thinking
in the American colonies, that the people’s right to arms was
auxiliary to the natural right of self-preservation.
The District insists that the phrase “keep and bear Arms”
should be read as purely military language, and thus indicative
of a civic, rather than private, guarantee. The term “bear Arms”
is obviously susceptible to a military construction. But it is not
accurate to construe it exclusively so. First, the word “bear” in
this context is simply a more formal synonym for “carry,” i.e.,
“Beware of Greeks bearing gifts.” The Oxford English
Dictionary and the original Webster’s list the primary meaning
of “bear” as “to support” or “to carry.” See Silveira, 328 F.3d
at 573 (Kleinfeld, J.) However, there are
too many instances of “bear arms” indicating private use to
conclude that the drafters intended only a military sense.
One authority cited by the District has attempted to equate
“keep” with “keep up,” a term that had been used in phrases
such as “keep up a standing army” or, as in the Articles of
Confederation, “every state shall keep up a well regulated and
disciplined militia . . . .” See Wills, supra, at 66. The argument
that “keep” as used in “the right of the people to keep . . . Arms”
shares a military meaning with “keep up” as used in “every state
shall keep up a well regulated militia” mocks usage, syntax, and
common sense. Such outlandish views are likely advanced
because the plain meaning of “keep” strikes a mortal blow to the
collective right theory.
The parties generally agree that the prefatory clause, to
which we now turn, declares the Second Amendment’s civic
purpose—i.e., insuring the continuance of the militia
system—and only disagree over whether that purpose was
exclusive. The parties do attribute dramatically different
meanings to “a well regulated Militia.” Appellants argue that
the militia referenced in the Second Amendment’s prefatory
clause was “practically synonymous” with “the people”
referenced in the operative clause. The District advances a
much more limited definition.
As the foregoing makes clear, the “well regulated Militia”
was not an elite or select body. See Silveira, 328 F.3d at 577-78
(Kleinfeld, J.). While some of the founding fathers, including
George Washington and Alexander Hamilton, favored such
organizations over a popular militia, see THE ORIGIN OF THE
SECOND AMENDMENT at xlvii (David E. Young ed., 2d ed.
1995), the Second Congress unambiguously required popular
participation. The important point, of course, is that the popular
nature of the militia is consistent with an individual right to keep
and bear arms: Preserving an individual right was the the best way
to ensure that the militia could serve when called.
We think the Second Amendment was similarly structured.
The prefatory language announcing the desirability of a wellregulated
militia—even bearing in mind the breadth of the
concept of a militia—is narrower than the guarantee of an
individual right to keep and bear arms. The Amendment does
not protect “the right of militiamen to keep and bear arms,” but
rather “the right of the people.” The operative clause, properly
read, protects the ownership and use of weaponry beyond that
needed to preserve the state militias. Again, we point out that if
the competent drafters of the Second Amendment had meant the
right to be limited to the protection of state militias, it is hard to
imagine that they would have chosen the language they did. We
therefore take it as an expression of the drafters’ view that the
people possessed a natural right to keep and bear arms, and that
the preservation of the militia was the right’s most salient
political benefit—and thus the most appropriate to express in a
political document.
To summarize, we conclude 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 civic purpose was also a political expedient
for the Federalists in the First Congress as it served, in part, to
placate their Antifederalist opponents. 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.