The Second Amendment : As Legal Analysts, the WaPo Editors Are Halfway Decent Journalists

In the wake of the D.C. Circuit's recent decision on the meaning of the 2nd Amendment, the Washington Post is beside itself, and would presume to explain to the federal judges how they got it wrong:

IN OVERTURNING the District of Columbia's long-standing ban on handguns yesterday, a federal appeals court turned its back on nearly 70 years of Supreme Court precedent to give a new and dangerous meaning to the Second Amendment. If allowed to stand, this radical ruling will inevitably mean more people killed and wounded as keeping guns out of the city becomes harder. Moreover, if the legal principles used in the decision are applied nationally, every gun control law on the books would be imperiled.

For those of you who prefer to get your legal analysis from journalism majors, you will likely be disturbed that a federal appeals court has "turned its back" on "nearly 70 years of Supreme Court precedent" to give a "new" meaning to the Second Amendment. Problem is, it hasn't. (More below.) The Miller decision referred to didn't establish whether the Second Amendment protected an individual right. It's clear that the WaPo editors didn't read Miller. If they did read it, they're not capable of understanding it. Anyone who reads Miller will see that Miller wasn't decided according to whose rights were protected. Miller was a decision on whether the Second Amendment protected the right of a bank robber to carry a sawed-off shotgun. The Supreme Court determined that the sawed-off shotgun carried by Miller was not protected, because the Second Amendment protected only militarily-significant guns. On this point, the Court was factually in error. In any event, the Court held that sawed-off shotguns would not be useful to a militia, and were therefore not the types of weapons covered by the Second Amendment:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" 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.

More on Miller here and here and here.

Though it may be "dangerous" to left-wing orthodoxy on the right to self-defense, the D.C. Circuit's opinion on the Second Amendment doesn't provide some "new" or "radical" meaning of the Second Amendment. The U.S. Department of Justice has endorsed the same interpretation of the Second Amendment, as has the U.S. Court of Appeals for the Fifth Circuit. Even within the very liberal Ninth Circuit, six judges sought a rehearing of a 2003 panel decision endorsing the opposite view:

The rhetorical star of the dissenters was Judge Alex Kozinski, who chided Reinhardt's panel for endorsing individual rights in a selective manner.

"Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms."

Kozinski, who as a child fled Romania when it was under the grip of dictator Nikolai Ceausescu, wrote that American slaves and Holocaust victims could have fought back had they been allowed to own guns.

"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees," Kozinski wrote.

"However improbable these contingencies may seem today, facing them unprepared is a mistake free people get to make only once."

He also said the effort Reinhardt expended in doing away with an individual right to bear arms is evidence itself that he was headed down the wrong path. "The panel's labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it -- and is just as likely to succeed."

In short, the D.C. Circuit's opinion takes one side of an issue that has been hotly and vigorously debated within the law ever since Miller and has never been settled by the U.S. Supreme Court. With the clear circuit split on this specific point, this issue is clearly ripe for decision by the Supremes. This should be interesting to watch.

Posted by: Ragnar at 11:42 AM | Comments (12) | Add Comment
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