A Farewell to Arms (Control)?

Federal courts have such great timing. You're not supposed to drop big news on folks on Friday afternoons - it'll get lost in the weekend news hinterlands and disappear for all time. Nonetheless, the DC Circuit dropped a bit of a bomb last Friday, handing down a 2-1 decision striking down a hunk of the District's gun control regulations. In doing so, the court may have teed up the issue of the meaning of the Second Amendment in a way that the Supreme Court can't avoid.

The Second Amendment, for those who haven't reviewed it lately, says:

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.

That, sentence, due to its odd construction, has led scholars and courts to split into two groups when it comes to the meaning of the Amendment. On one side are the "collective right" theorists, who argue that the key phrase is "a well regulated militia," which limits the right to possession of arms in connection with some sort of organized fighting force. On the other side are the "individual right" folks, who argue that the "right of the the People . . ." language controls and that the stuff in the beginning is more aspirational than anything else.

While this debate has raged away in academia, the Supreme Court has been largely silent. Prior cases dealing with the Second Amendment are rare and don't address the issue head-on. For years, it was widely assumed, outside of the NRA, that the collective rights interpretation was controlling. A few years ago, the Fifth Circuit handed down a case that adopted the individual right theory, but ultimately upheld the defendant's firearm possession conviction, so it didn't make much of a splash.

This new DC comes to the same conclusion and adopts the individual right theory, basically concluding that citizens have a right to possess firearms in their homes. Unlike the earlier Fifth Circuit decision, the DC case actually strikes down a piece of gun control legislation. That might not only inspire further proceedings by the losing parties, but maybe it might interest the new-look Supreme Court. If the Supremes would take the issue and resolve it with some clarity, it could have a huge impact across the country.

For more discussion about the DC case than you can shake a stick at, see this collection of posts over at Volokh Conspiracy and this post from Jack Balkin. For a surprisingly rare negative opinion, see this piece at History News Network.