One Court's Second Amendment Fantasy

Two judges on the D.C. circuit wrote the decision in Parker v. DC, the first case in American history to strike down any gun law on Second Amendment grounds. That decision was clearly erroneous.
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Last Tuesday, the United States Supreme Court accepted the District of Columbia's appeal in DC v. Heller, in what could be the most significant Second Amendment case in history. Since then, scores of articles and editorials have discussed the scope and ultimate effect that this case may soon have on America's gun laws and the people who voted for them.

Much less analysis, however, has met the lower-court decision that sparked this debate in the first place. Two judges on the District of Columbia circuit wrote the decision in Parker v. DC [pdf], the first case in American history to strike down any gun law on Second Amendment grounds.

That decision was clearly erroneous for several reasons. Their opinion was an example of judicial activism at its worst - a point I've made many times before - since the Constitution in no way prevents communities from having the gun laws they believe are needed to protect public safety. More specifically, the two-judge majority in Parker ignored longstanding Supreme Court precedent, discounted the express language of the Second Amendment, and substituted its policy preferences for those of the District's elected representatives.

The case was wrongly decided, and the Brady Center has the analysis to prove it.

For your review this week, I will post the Brady Center Legal Action Project's point-by point examination of the Parker decision titled, Second Amendment Fantasy: the D.C. Circuit's Opinion in the Parker Case. To my knowledge, it is the only analysis that provides a detailed refutation of the Parker court's key claims, and a thorough defense of the current state of Second Amendment law.

Over the course of five installments, "Second Amendment Fantasy" reveals the Parker decision as

[A] tangled web of inconsistency, flawed reasoning, distortion of binding precedent, and misunderstood historical materials, all in service to the court's single-minded determination to rewrite the Second Amendment....

Put simply, after this searing critique, the Parker opinion falls of its own weight. You can read for yourself, beginning with today's first installment titled, Mangling Miller: How the Parker Opinion Distorted and Defied Supreme Court Precedent.

An excerpt is presented here, with a link to the full document below.

The 2-1 panel decision by the United States Court of Appeals for the D.C. Circuit in Parker v. District of Columbia made errors of history, errors of law, and errors of logic. But perhaps no error was more fundamental, and troubling, than the court's misinterpretation - and disregard - of the Supreme Court's decision in United States v. Miller, 307 U.S. 174 (1939).

The Second Amendment reads: "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."

Especially on matters of constitutional interpretation, the first order of business for a federal appeals court is to see if the Supreme Court has spoken on the issue. If it has, the next task is to determine what the Supreme Court said, and what it meant.

The Supreme Court's only extensive discussion of the Amendment is found in its unanimous Miller decision. As Judge Henderson stated in her dissent in Parker, the Miller opinion "unambiguously" set out the Supreme Court's "understanding of the Second Amendment" - that the "militia clause" of the Second Amendment limits the "right to keep and bear arms." Miller's key holding was the Court's unequivocal statement that:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the "well regulated Militia,"] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Accordingly, the Miller Court read the Second Amendment as an indivisible whole, with only one purpose.

Read the whole installment here [pdf].

(Note to readers: This entry, along with past entries, has been co-posted on and the Huffington Post.)

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