Second Amendment Showdown
By TED CRUZ
March 14, 2007; Page A14
Last week's decision, striking down the District of Columbia's ban on guns as unconstitutional under the Second Amendment, flowed directly from the text, history and original understanding of the Constitution. The U.S. Court of Appeals for the D.C. Circuit's decision rejected the Ninth Circuit's "collective rights" theory and embraced instead the Fifth Circuit's holding that the Second Amendment protects individual rights. In so doing, the D.C. Circuit took a major step forward in protecting the rights of gun owners throughout the country.
In some ways, the decision should not be at all noteworthy or surprising. After all, the text of the Second Amendment explicitly protects "the right of the people to keep and bear Arms," and the D.C. gun ban amounted to a complete and total prohibition on citizens owning operational firearms in the District of Columbia. The challenged city ordinances prohibit the private possession of all handguns and also require that all long guns (i.e., rifles and shotguns) be disassembled or have trigger locks in place at all times. This latter requirement has no exceptions -- so that even if a violent crime is underway in your home, removing the trigger lock in self-defense or in defense of your family constitutes a crime.
No state in the union has a prohibition as draconian. Indeed, the constitutions of 44 states, like the federal Constitution, explicitly protect the individual right to keep and bear arms, and the legislatures of all 50 states are united in their rejection of bans on private handgun ownership. Forty-five states go even further, allowing private citizens to carry concealed handguns for self-defense.
So how is it that the District of Columbia could be so out of step with the rest of the nation and nonetheless arguably comply with the requirements of the Second Amendment? The answer that the federal district court seized upon -- like an earlier ruling from the Ninth Circuit Court of Appeals in California -- is a theory popularized recently by several law professors and gun-control advocates: Because the Second Amendment refers to "a well regulated Militia," the Constitution protects only the "collective right" of the militia and not the individual right of any citizen.
This creative theory, useful for advancing the policy goals of its advocates, runs contrary to the text of the Constitution, to the debates and original understanding of the Framers, to Supreme Court precedent, and to the widespread understanding of state courts and legislatures for the first 150 years of our nation's history. At the time of the founding, the "militia" was understood to consist of all able-bodied males armed with their own weapons; indeed, the Militia Act of 1792 not only permitted individual gun ownership, it required every man to "provide himself with a good musket or firelock . . . or with a good rifle."
If the "collective rights" theory were to prevail, the result would be that no individual in the U.S. could ever claim any right under the Second Amendment, but rather that inchoate right would exist only collectively and amorphously for state militias. Such an outcome effectively reads out of the Constitution what respected law professor Sanford Levinson famously described as, from the perspective of anti-gun advocates, that "embarrassing Second Amendment."
Because the "collective rights" theory is unfaithful to the Constitution and undermines the individual rights of all Americans, Texas took the lead among the states in supporting the plaintiffs in the D.C. gun suit. Texas Attorney General Greg Abbott assembled a collation of 13 states (Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Michigan, Minnesota, Nebraska, North Dakota, Ohio, Utah and Wyoming) who together supported the Second Amendment, and the amici states presented oral argument in the D.C. Circuit in the companion case to this one defending the individual right to keep and bear arms.
Notably, every state, including Texas, believes that some regulations on firearms are both permissible and advisable; for example, the states are united in supporting restrictions on violent felons owning guns. But all of the amici states are likewise united in the belief that the Second Amendment means what it says, that the individual right to keep and bear arms cannot be completely abrogated as under the D.C. gun ban.
The District of Columbia has pledged to appeal, and this case could well find its way before the U.S. Supreme Court. If so, Texas and the rest of the amici states stand ready once again to support the Second Amendment, and we are confident that the Court will in turn faithfully uphold the individual constitutional rights of all Americans.
Mr. Cruz is the solicitor general of Texas. He authored two briefs and presented oral argument for the amici states supporting the Second Amendment in the D.C. Circuit.
