In case you haven't heard, the big news today is that the U.S. Court of Appeals for the D.C. Circuit held that the right to keep and bear arms is an individual right.

I know, it's a shock.

The language of the decision is so out of step with the type of wishy-washy "living document" bullshit theory of Constitutional interpretation I've become resigned to, I want someone to pinch me to make sure I'm not dreaming.

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. The District’s primary argument is that “keep and bear Arms” is best read in a military sense, and, as a consequence, the entire operative clause should be understood as granting only a collective right. The District also argues that “the right of the people” is ambiguous as to whether the right protects civic or private ownership and use of weapons.

In determining whether the Second AmendmentÂ’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 Â— “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. We also note that the Tenth Amendment Â— “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” Â— indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.

The DistrictÂ’s 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 Â— e.g., “the states.” . . . 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. . . .

. . .

It seems unlikely that the Supreme Court would have lumped these provisions together without comment if it were of the view that the Second Amendment protects only a collective right. The CourtÂ’s discussion certainly indicates Â— if it does not definitively determine Â— that we should not regard “the people” in the Second Amendment as somehow restricted to a small subset of “the people” meriting protection under the other AmendmentsÂ’ use of that same term.

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.

Parker v. District of Columbia at 18-19.

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. . . . Hence, the Amendment acknowledges “the right . . . to keep and bear Arms,” a right that pre-existed the Constitution like “the freedom of speech.” Because the right to arms existed prior to the formation of the new government . . . the Second Amendment only guarantees that the right “shall not be infringed.”

Id at 20-21.

"People" means people, people. That's what originalism is all about. First you determine what the Constitution says (not what you wish it said), then you determine if the law in question departs from the Constitution. If it does, then there is a mechanism for changing the Constitution, specified within the Constitution. You don't simply disregard the Founding Document and make up a lie about what it really means.

This decision will make its way to the Supreme Court, and thank George W. Bush, we'll have Roberts and Alito on our side hopefully.

Posted by: annika at 08:37 PM | Comments (13) | Add Comment
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