Guns and Grammar

As Mayor Bloomberg pursues his campaign against what he calls illegal guns, quite a drama is shaping up among the judges who ride the United States appeals circuits. On Friday, the riders of the District of Columbia Circuit ruled that it is on the people, not states wanting militias, that the Second Amendment confers the right to keep and bear arms. Such a ruling, being in conflict with at least some of the findings in other circuits, now provides an opportunity for the Supreme Court to act with a clarity it has long eschewed.

The case decided Friday involved a police officer in Washington who wanted to be able to keep an unlocked gun in his home. The Columbia District tried to convince the court that it was only because militias were necessary that the Constitution conferred a right to keep and bear. The court parsed the plain meaning of the Constitution and concluded otherwise. It vindicated an opinion that Attorney General Ashcroft had expressed and that taken to its logical conclusion would eviscerate the efforts to control guns through regulation.

What the court focused on was the grammar of the amendment that has been called the Palladium of Our Liberties. Says it: "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." The judges focused on what they called the "provision's second comma," which, they noted, "divides the Amendment into two clauses. The "first is prefatory, and the second operative," the court decided.

The court had little patience for the scheme of the District of Columbia to the effect that the Second Amendment should be understood, as the court put it, "to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias." They called "passing strange" the notion that "the able lawyers and statesmen in the First Congress" — including, they noted, Madison — "would have expressed a sole concern for state militias with the language of the Second Amendment."

If they'd wanted to do that, the court concluded, there was a "more direct locution, such as ‘Congress shall make no law disarming the state militias' or ‘States have a right to a well-regulated militia.'" The court also sketched the debate over whether the phrase "the people" could be interpreted collectively, rather than individuals. It noted that the term is found in the First, Second, Fourth, Ninth, and 10th Amendments. "It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation," the court said, making a point to italicize the word individuals.

The court also pondered "what interests" the rights conferred in the Second Amendment protected. It decided that the "correspondence and political dialogue of the founding era indicate that arms were kept for lawful use in self-defense and hunting." It noted that individuals would use arms for "these private purposes, in addition to whatever militia service they would be obligated to perform for the state."

Pointedly, the court did not suggest that the government is "absolutely barred from regulating the use and ownership of pistols." The protections of the Second Amendment, it said, "are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment." It said, citing one case, that "it is presumably reasonable ‘to prohibit the carrying of weapons when under the influence of intoxicating drink, or to a church, polling place, or public assembly, or in a manner calculated to inspire terror. ... '"

But overall, the ruling of the riders of the D.C. circuit is a bright flashing yellow light for the mayor and other city executives he has lined up for his campaign to use local regulations against guns and tort law to deal with the problem of crime. Judge Silberman, who filed the opinion on behalf of himself and Judge Griffith over the dissent of Judge Henderson, was unsparing in his criticism of the foggy thinking of the riders of the 9th Circuit. He sets up a classic conflict among circuits that could bring the Supreme Court to step in to resolve a question that has festered almost since the founding of our city and republic.