Today I post the fifth and final installment of the Brady Center Legal Action Project’s thorough criticism of the appeals court decision in the DC gun case. Titled, Wishful Thinking: How the Parker Court Twisted and Misrepresented the Holdings of Supreme Court and State Cases, it explains – in one case after another – how the many decisions that the lower-court opinion cites (including the infamous Dred Scott decision) offer little or no support for its mistaken conclusions.

The Brady Center’s Legal Action Project has produced a unique document here. As far as I’m aware, it is the only criticism of its kind to provide such a detailed and scholarly treatment of the lower-court decision in the DC gun case.

In the process, the Brady Center has shown that the lower-court opinion falls of its own weight.

As a complete explanation and defense of pre-2007 Second Amendment law, anyone who is interested in the Second Amendment generally, as well as the case now before the United States Supreme Court (DC v. Heller), will find it to be essential reference material.

I include an excerpt of the fifth installment here, with a link to the full text at the end:

This installment addresses the Parker majority’s citation to state and Supreme Court case law containing passing references to the Second Amendment in footnotes and dicta, or even a brief mention of the Amendment in a dissent, as support for its activist re-interpretation of the Second Amendment. All told, of the eleven state and Supreme Court cases examined below and cited by Parker as holding that the Second Amendment grants a right to possess firearms for private purposes, only two state cases can possibly be read to support such a theory. Yet these two cases contain only brief references to the Second Amendment in dicta that even Parker admits is contradicted by binding Supreme Court precedent.

The Parker majority’s reliance on such dicta violates Justice Marshall’s stern warning on the hazards of citing pronouncements about the law that are not at issue in a case: “It is extremely dangerous to take general dicta upon supposed cases not considered in all their bearings, and, at best, inexplicitly stated as establishing important law principles.� The Parker court’s claim that these eleven cases support its view of the Second Amendment is nothing more than wishful thinking.

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The Parker court’s desperation is perhaps most starkly revealed by its reliance on one of the most thoroughly discredited cases in Supreme Court history, Dred Scott v. Sandford. Dred Scott, of course, infamously held that slaves were property and not entitled to the same rights as citizens. Its later-reversed holding had nothing to do with the Second Amendment. In dicta, the Court analyzed whether slaves were entitled to the protections of the Constitution by listing a few examples: “Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.� From this lone sentence, the Parker majority concluded that “this passage expresses the view, albeit in passing, that the Second Amendment contains a personal right� because it “is included among other individual rights….�

Of course, Dred Scott’s dicta proves nothing. As we have already noted in our second and fourth installments in this series, labeling a Second Amendment right as “personal� or “individual� does not in any way advance our understanding of the Amendment’s purpose. The Supreme Court of Tennessee, in the 1840 Aymette case, pointedly asked: “to keep and bear arms for what?� The fact that the Second Amendment’s right is secured to “the people� does not mean that the Amendment’s declaration and guarantee can be divorced from its militia purpose.

Read the full installment here [pdf].

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