Well, if “Congress Shall Make No Law…” Doesn’t Mean What it Says,

Then yesterday’s District Court Decison on DC’s handgun ban is no surprise.

(T)he Court notes that even if it could conclude that the Second Amendment applies to the District of Columbia, plaintiff Hailes would nonetheless be unable to assert that she has a right to possess her firearm in her residence in the manner in which she desires (i.e., assembled and without a trigger lock) because she has failed to assert any form of association with a militia. See Silveira, 312 F.3d at 1060 (describing the school of thought that limits the right to bear arms as conditioned on membership in a militia as the “limited individual rights” model); Emerson, 270 F.3d at 219 (describing this school of thought as the “sophisticated collective rights” model).

(T)he Court finds that plaintiff Hailes’ challenge to the requirement that she maintain a trigger lock on her shotgun is legally distinct from the plaintiffs’ other claims and therefore the Court had to analyze the scope and purpose of the Second Amendment to determine whether the D.C. Code § 7-2507.02 is unconstitutional. Having done so, the Court finds that Ms. Hailes’ Second Amendment challenge to D.C. Code § 7-2507.02 must also be dismissed, as the text of the Second Amendment, the history surrounding its enactment and Supreme Court precedent that have addressed the Amendment all lead the Court to the conclusion that Ms. Hailes’ claims are not only lacking on the merits, but that the Second Amendment does not apply to the District of Columbia.

Again, 9th Circuit Judge Kozinski’s words come immediately to mind:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon – a sawed-off shotgun – was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

And the toboggan picks up just a bit more speed…

And, of course, the Supreme Court will pass on this one as well.

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