This Circuit Has Implicitly Adopted The Individual Rights Model
This Circuit Has Implicitly Adopted The Individual Rights Model Of The Second Amendment.
Two years before Emerson, this Court suggested acceptance of the Second Amendment as an individual right. Although FOP II, supra, 173 F.3d 898, did not explicitly adopt the individual rights model, its analysis of Miller is plainly inconsistent with any ?collective rights? approach to the Second Amendment.
In the FOP I litigation, supra, 152 F.3d 998 and FOP II, supra, 173 F.3d 898, this Court considered a challenge by a police officers? organization to a law barring domestic violence misdemeanants from possessing government-issued firearms. The Court struck down the provision in FOP I as unconstitutionally irrational in violation of the Fifth Amendment?s Due Process Clause, as domestic violence felons who had presumably committed more serious crimes were allowed to retain their firearms while in police service. In so doing, the court noted that ?[d]espite the intriguing questions raised, we will not attempt to resolve the status of the Second Amendment right,? because the misdemeanant-felon disparity appeared so patently irrational. FOP I, 152 F.3d at 1002. In FOP II, this Court reversed itself on reconsideration, but not before reaching the police officers? Second Amendment arguments and providing a Miller analysis consistent with the individual rights perspective.
This Court first observed that Miller may propose nothing more than what Plaintiffs claim it means ? a test ?to separate weapons covered by the [Second] amendment from uncovered weapons.? FOP II, 173 F.3d at 906. Yet the FOP?s failure to argue Miller?s irrelevance to the question at hand led the court to ?assume the [Miller] test?s applicability.? Id.
What this means is that the FOP could have argued that the Miller test was not relevant to the second amendment rights of their members, because a specific type of weapon was not at issue. Because they did not, the court assumes that the test in Miller is applicable. I'm not sure how reasonable it is to make that assumption; this sounds at least a little bit like the court looking for a good excuse to rule against the plaintiff on this issue, and finding it in the Miller test.
The Court then faced the task of applying the Miller test to the challenged law:
[W]e are not altogether clear what kind of ?relationship? ? or, to quote Miller more precisely, ?reasonable relationship,?? is called for here . . . We suppose Miller would be met by evidence supporting a finding that the disputed rule would materially impair the effectiveness of a militia, though perhaps some other showing could suffice. We need not fix the exact form of the required relationship, however, because FOP has presented no evidence on the matter at all. FOP II, 173 F.3d at 906 (citations omitted).
FOP?s Second Amendment argument rested solely on the fact that ?in ?most? states, police officers can be called into service as militia members.? FOP II, 173 F.3d at 906. The Court found the argument unpersuasive because FOP failed to show that ?police officers [are] any more susceptible to such service than ordinary citizens (or in some cases, than males between the ages of 17 and 45).? FOP II, 173 F.3d at 906. Moreover, FOP failed to show how barring police officers convicted of domestic violence misdemeanors from possessing firearms would ?have a material impact on the militia.? FOP II, 173 F.3d at 906.
In other words, a statute barring a limited class of individuals from owning firearms may not offend the Second Amendment.10 Implicit in the Court?s reasoning, however, is that if a rule could be shown to impair a significant portion of ?ordinary citizens? from functioning as militia, that is, acting in armed concert for the common defense or in self-defense, or if a rule were to otherwise impair the effectiveness of a militia, it would violate the Second Amendment. Considering the Supreme Court?s admonition that members of the public were ?expected to appear bearing arms supplied by themselves,? Miller, 307 U.S. at 179, when called upon to serve in the militia, it appears this Court would not approve of the statutes challenged herein.
Relying upon the historic ?right of self defense and right of self preservation,? Abigail Alliance v. Von Eschenbach, ___ F.3d ___, 2006 U.S. App. LEXIS 10874, *26 (D.C. Cir., May 2, 2006), this Court recently found a substantive due process right of terminally ill patients to obtain drugs not fully approved by the FDA. If ?[b]arring a terminally ill patient from the use of a potentially life-saving treatment impinges on this right of self-preservation . . . .,? id., at *27, then surely barring a law-abiding citizen from possessing a functional firearm in her home likewise violates this right of self-preservation. Each law challenged here ?impinges upon an individual liberty deeply rooted in our Nation's history and tradition of self-preservation.? Id., at *45. Yet this Court was ?mystified? by attempts to fashion a substantive due process right to arms, because the Second Amendment provides such rights textually. FOP II, 173 F.3d at 906. Abigail and FOP II cannot be reconciled with the collective rights view of the Second Amendment.
Abigail is an interesting precedent to use. It's much more in the usual vein for a liberal court, and yet it goes directly to the point. If an individual has the right to obtain potentially life-saving drugs, based on substantive due process, does not an individual whose life is threatened by violence have a similar right to obtain proscribed arms? How much stronger is that argument when the 2nd Amendment explicitly conveys an almost unqualified right to arms?
Although Abigail is probably distinguishable if a court wished to do so, at first glance it has some precedential value. Little precedents like this, that suggest but do not bind, can add up to a big victory. But we shouldn't lose sight of the fact that the other side will still get the chance to argue their case, and cite their own precedents. There's more favorable material within the DC circuit than I had expected, but 30 years of gun control must have resulted in some precedents going the other way. We'll see what the other side comes up with.