In the three days since oral arguments were held in District of Columbia v. Heller, I’ve had the chance to reflect on the day’s events and develop some perspective.

I was in the courtroom on Tuesday, and counted myself fortunate to have had a ringside seat to history. It was probably the most extensive discussion ever by the Supreme Court of the United States regarding the nature and scope of the Second Amendment, and whether and to what extent elected representatives have the power to pass the reasonable gun control laws they believe are necessary to keep their communities safe.

In the cold morning air outside before the white marble steps of the Court building, Brady activists were respectfully carrying signs and speaking to the media. They were joined and cheered on by passers-by – school children, government workers, and tourists – and encountered little opposition from the National Rifle Association or other gun groups.

Meanwhile, inside the courtroom, I watched the lawyers present their cases and I was constantly aware of how critically and immediately the Justices’ decision will affect the gun laws that protect you and your family every day, including the Brady Law, the federal machine gun ban, plus many strong state gun laws in California, New York, Illinois, and others.

What I saw on Tuesday were nine Justices struggling to come to terms with opposing approaches to the Second Amendment.

While we believe that legal precedent, historical records, and a contextual reading of all the words in the Second Amendment make it clear that the “right� of the people to “keep and bear arms� must be related to service in a “well regulated militia� (see our amicus brief), a majority of the Justices seemed to be leaning against this view. At the very least, they were interested in exploring the idea that the Amendment protects some private, individual right to own guns unrelated to service in a well regulated militia.

What still stands out to me three days after the argument, however, is that there was broad support from all sides for all current and proposed regulations concerning guns, short of a near-total ban on all guns. It was intriguing to watch the Justices search for an “individual rights� interpretation of the Second Amendment that would also allow most existing gun control laws.

For example, Justice Breyer wanted to know what sorts of gun control laws would survive under a “reasonableness” standard vis-à-vis some new interpretation of the Second Amendment. Questions from Justices Breyer, Stevens and Ginsburg managed to extract concessions from Mr. Heller’s attorney, Alan Gura, toward the end of his argument.

Machine gun bans? Reasonable, Gura conceded. Plastic gun bans? Reasonable. Licensing? “We don’t have a problem with the concept of licensing,” Gura said. Requirements to demonstrate competency with a gun? Reasonable. Background checks? Reasonable “of course,” Gura said. Gun bans by college campuses? Mr. Gura said that “Might be doable.”

In a matter of about 10 minutes, Mr. Heller’s own attorney ended up endorsing (or at least not opposing) key portions of the Brady Campaign’s legislative and policy agenda.

After looking over the oral argument transcript, we have good reason to be hopeful that the Justices’ ruling will uphold action by elected officials at all levels to enact sensible gun laws they feel are needed to protect their communities.

Regardless of whether the District wins or loses, and regardless of how the Justices rule on the individual’s “right” to bear arms, their questioning clearly acknowledged the importance of and the need for reasonable regulations on guns. Their ruling this summer will determine what happens next as we work to reduce and prevent gun violence in this country.

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

More evidence emerged this month that the gun debate is turning a corner in America.

Only days after signing the first gun control legislation in over a decade, the Bush Administration has now disavowed the most extreme outcomes implicit in the gun lobby’s view of the Second Amendment.

In its brief in the D.C. v. Heller case pending in the U.S. Supreme Court, the Bush Administration acknowledges that because of the “unquestionable threat to public safety that unrestricted private firearm possession would entail� that “various categories of firearm-related regulation are permitted by the Second Amendment.�

The Brady Center welcomes this surprising development. It demonstrates the problem with the “private purpose� interpretation of the Second Amendment. This view might have sounded good politically to the Ashcroft Justice Department [pdf], but now the Bush Administration realizes that the lower-court decision could “cast doubt on the constitutionality of� common-sense gun control laws like the “federal machine gun ban,� the restrictions on firearm possession by felons, and the licensing of gun dealers.

Rather than defend the long-standing view of virtually every Federal court – that the Second Amendment has an obvious militia purpose, and is no barrier to the adoption of gun control laws by legislative bodies responsible for providing public safety and for weighing competing views on the effectiveness of and need for such laws – the Bush Administration brief proposes a “heightened scrutiny� test when the gun control law “has no grounding in Framing-era practice.�

This test would consider the “practical impact� on the individual (“including the nature and practical adequacy of the available alternatives�) and the “strength of the government’s interest in enforcement of the relevant restriction.�

This case-by-case approach would permit “Second Amendment doctrine to develop in an incremental and prudent fashion,� according to the Bush Administration. Judges in different parts of the country could presumably reach different decisions on similar gun control restrictions based on the different law enforcement challenges in those communities.

Do we really want judges making those decisions rather than democratically-elected legislative bodies? Nine national police organizations have joined the Brady Center’s brief [pdf] defending the pre-Heller state of Second Amendment law, which gave this power to communities.

Police and mayors and district attorneys (all of whom are on briefs supporting the District of Columbia) know that gun control laws that make it harder for dangerous people to get dangerous weapons help keep their communities safe.

The Second Amendment should not be a barrier to the adoption of sensible gun laws that help save lives. We’re glad that the Bush Administration seems to agree.

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

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.

***

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.)

Too many participants in the debate over what the Second Amendment means have framed the issue incorrectly.

The question should not be whether the Amendment protects an “individual� or “collective� right to own guns. That is a red herring, one that leads partisans on either side to look at only half of the Amendment – either the “Militia purpose� clause, or the “keep and bear Arms� clause.

As I argued earlier, we have to read all the words in the Second Amendment, not just the ones we like.

Instead, the real issue in this debate is what purpose the Amendment was written to protect, and how, therefore, the Second Amendment should be interpreted and applied. Fortunately, the Supreme Court clearly spoke to that question in the 1939 Miller decision:

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.

So, according to the U.S. Supreme Court, the Second Amendment has a militia purpose. Not a hunting purpose. Not a self-defense purpose. Not a target-shooting purpose. Not a “private purpose.� Just a militia purpose.

Unfortunately, however, the lower-court opinion in the DC gun case ignored this nearly 70-year-old precedent and invented a rationale to invest the Second Amendment with a non-existent “private purpose.�

This is the central reason why that decision was clearly erroneous and should be reversed.

Today I post the fourth installment of the Brady Center Legal Action Project’s thorough criticism of the appeals court decision in the DC gun case, now before the US Supreme Court. It is titled, Parker and “the People�: How the Parker Court Obscured the Real Issue in the Second Amendment Debate, and it explains what the real issue is today before the United States Supreme Court.

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

This installment addresses the Parker court’s “lead-off� argument: that the use of the term “the people� in the Second Amendment itself establishes that the right guaranteed by the Amendment extends to private purposes such as hunting and self-defense and is not confined to service in a “well regulated Militia.�

The Parker majority wrote that “[I]n determining whether the Second Amendment’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 – ‘the people’.� Noting that the term “the people� is found in the First, Second, Fourth, Ninth, and Tenth Amendments, the court asserted that it “has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation.� The majority concluded: “The natural reading of the ‘right of the people’ in the Second Amendment would accord with usage elsewhere in the Bill of Rights.� “The people,� according to the Parker court, cannot mean “some subset of individuals such as ‘the organized militia,’� and also cannot mean “the states.� Thus, the Parker court concludes, “the right in question is individual.

The court, however, simply obscured the real issue. There is no question that the Second Amendment guarantees a right to “the peopleâ€� — that much is clear from the text. The issue is: What right does the Second Amendment grant to the people? Is it the right to possess and use guns for private purposes like hunting or self-defense, as asserted by the Parker majority, or rather the right to be armed for purposes related only to service in a government-organized militia?

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.)

As I discussed previously, the lower-court opinion [pdf] in the DC gun case virtually “erased” the “Militia purpose” clause of the Second Amendment, in order to reach its flawed conclusion.

For that reason alone it is - to borrow a phrase from that opinion - “passing strange” that the decision discusses the history of the militia in America at all. Yet when it does offer this discussion, it gets its history wrong.

What is the purpose of the militia? The Constitution says it is “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” It is confusing, therefore, to conclude that the Second Amendment - with its explicit militia purpose - might somehow provide individuals the right to mount an armed insurrection against the very law and order that the militia was designed to defend.

There is no Second Amendment right to treason.

Furthermore, when the Bill of Rights was ratified, service in a well regulated militia was a civic duty owed to society. Able-bodied, free, white men within a certain broad age range were expected to submit their names for enrollment to the local militia officer, supply their own arms and equipment, and muster at the appointed times. Even the two-judge majority admitted this much.

The inevitable conclusion to be drawn, therefore, is that the militia had to be organized before someone could enroll for militia service. After all, one couldn’t sign up in the militia without a “well regulated Militia” first being organized. Yet the lower-court decision ignores this basic fact. Even as the majority opinion admits that one had to first enroll with a militia officer, it defines the well regulated militia amorphously, as “citizens subject to organization.”

Simply put, the lower-court’s treatment of the well regulated militia in America makes no sense. For this reason and others, the decision is clearly erroneous and should be reversed.

Today I post the third installment of the Brady Center Legal Action Project’s thorough criticism of the appeals court decision in the DC gun case, now before the US Supreme court. Titled, Militia Madness: How the Parker Court Substituted an “Armed Populace” for the “Well Regulated Militia” of the Second Amendment, it is a sharp and detailed criticism of this section of the lower-court decision.

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

In this third installment, we explain how the Parker court, while disregarding the militia purpose of the Second Amendment as having no limiting effect, also totally mischaracterized the “well regulated Militia” that the Framers meant to protect. To the Framers, the “well regulated Militia” was an armed, organized, and disciplined governmental military institution made up of citizens. It helped fight the British during the Revolutionary War, and afterwards was called out to suppress armed insurrectionists like the farmers in Shays’s Rebellion.

Thereafter, it was formally embodied in the Constitution and protected by the Second Amendment. It has existed, in some form, ever since. The “well regulated Militia[’s]’” value to our society has always been to serve the three purposes laid out for it in the Constitution: “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Service in the militia was a civic duty, not a right. The Parker opinion ignored this history and these purposes. Instead, the court substituted a fabricated world in which the “well regulated Militia” is an “armed populace” of citizens merely “subject to organization” who keep guns for “private purposes” and therefore have them available if called into militia service. Like so many other parts of the Parker opinion, this is a fantasy.

If the Second Amendment is read naturally, in the order it is written, then its militia purpose explains “the right of the people to keep and bear Arms,” not the other way around. A “well regulated Militia” is the Amendment’s aim, not merely some side benefit of arms owned for “private purposes.” Moreover, it is the “well regulated Militia” composed of men “fighting for their common liberties” and “united and conducted by governments” that satisfied Anti-Federalist concerns about the potential threats of a standing army, not Parker’s vision of an “armed populace.”

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.)