The District's Argument, strained but not isolated.

The District's argument -- as strained as it seems to us -- is hardly an isolated view. In the Second Amendment debate, there are two camps. On one side are the collective right theorists who argue that the Amendment protects only a right of the various state governments to preserve and arm their militias.  So understood, the right amounts to an expression of militant federalism, prohibiting the federal government from denuding the states of their armed fighting forces. On the other side of the debate are those who argue that the Second Amendment protects a right of individuals to possess arms for private use. To these individual right theorists, the Amendment guarantees personal liberty analogous to the First Amendment's protection of free speech, or the Fourth Amendment's right to be free from unreasonable searches and seizures. However, some entrepreneurial scholars purport to occupy a middle ground between the individual and collective right models.
That's an interesting word choice there: "entrepreneurial" is usually used to describe individuals who seek to create new businesses in order to profit from a perceived market opportunity.  I may be reading tea leaves here, but this may be a reference to anti-second-amendment scholars seeking to obtain funding (eg, profit) from some of the anti-gun institutions, not least of which is the Joyce Foundation.  The Smallest Minority has extensively documented their activities in this area.
The most prominent in-between theory developed by academics has been named the "sophisticated collective right" model.3 The sophisticated collective right label describes several variations on the collective right theme. All versions of this model share two traits: They (1) acknowledge individuals could, theoretically, raise Second Amendment claims against the federal government, but (2) define the Second Amendment as a purely civic provision that offers no protection for the private use and ownership of arms. 

The District advances this sort of theory and suggests that the ability of individuals to raise Second Amendment claims serves to distinguish it from the pure collective right model. But when seen in terms of its practical consequences, the fact that individuals have standing to invoke the Second Amendment is, in our view, a distinction without a difference. But cf. United States v. Emerson, 270 F.3d 203, 218-21 (5th Cir. 2001) (treating the sophisticated collective right model as distinct from the collective right theory). Both the collective and sophisticated collective theories assert that the Second Amendment was written for the exclusive purpose of preserving state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today. The latter point is true either because, as the District appears to argue, the "Militia" is no longer in existence, or, as others argue, because the militia's modern analogue, the National Guard, is fully equipped by the federal government, creating no need for individual ownership of firearms. It appears to us that for all its nuance, the sophisticated collective right model amounts to the old collective right theory giving a tip of the hat to the problematic (because ostensibly individual) text of the Second Amendment.
Or, in other words, the sophisticated collective rights theory is the result of actual legal scholarship being done which rendered the prior (unsophisticated?) collective rights theory untenable.  Once sufficient historical evidence was available to legal scholars and judges on the actual meaning of the text, it became impossible to paper over the problem with collectivist noises.
The lower courts are divided between these competing interpretations. Federal appellate courts have largely adopted the collective right model.4 Only the Fifth Circuit has interpreted the Second Amendment to protect an individual right.5  State appellate courts, whose interpretations of the U.S. Constitution are no less authoritative than those of our sister circuits, offer a more balanced picture.6  And the United States Department of Justice has recently adopted the individual right model. See Op. Off. of Legal Counsel, "Whether the Second Amendment Secures an Individual Right" (2004) available at;  see also Memorandum from John Ashcroft, Attorney General, to All United States' Attorneys (Nov. 9, 2001), reprinted in Br. for the United States in Opposition at 26, Emerson, 536 U.S. 907 (No. 01-8780). The great legal treatises of the nineteenth century support the individual right interpretation, see Silveira v. Lockyer, 328 F.3d 567, 583-85 (9th Cir. 2003) (Kleinfeld, J., dissenting from denial of rehearing en banc); Emerson, 270 F.3dat 236, 255-59, as does Professor Laurence Tribe's leading treatise on constitutional law.7 Because we have no direct precedent -- either in this court or the Supreme Court -- that provides us with a square holding on the question, we turn first to the text of the Amendment.
When Silberman says here that he has no direct precedent, he's being very narrow-focused.  The last major Supreme-Court precedent on the 2nd Amendment (Miller) turned on the weapon, not the question of an individual or collective right.  Seegars, a recent precedent before this circuit, turned on standing and did not reach the merits of the case when considered en banc (it did reach the merits before a three-judge panel).  Silviera and Emerson are from different circuits.  Lopez (gun-free school zones) was decided on commerce-clause grounds rather than the 2nd Amendment.  Earlier challenges to the DC law were heard in administrative courts rather than the federal circuit courts.  And so on.

This entry was published Sat Mar 17 17:21:43 CDT 2007 by TriggerFinger and last updated 2007-03-17 17:21:43.0. [Tweet]

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