The Right to Bear Bazookas: A New Take on the Second Amendment

The Court of Appeals in the District of Columbia has decided to strike down a gun control law as a violation of the Second Amendment. The decision, known as Parker, casts aside more than 70 years of established jurisprudence. The Appeals Court’s revisionist reading of U.S. v. Miller, (1939) the controlling Supreme Court precedent, is highly problematic. According to the majority opinion in Parker, Miller was only concerned with the type of weapons protected by the Second Amendment. If the decision is not reversed it ought to mean plenty of new business for the manufactures of flame throwers, bazookas, and Stinger missiles who are certain to welcome the DC Court’s lunatic logic.

The Miller case has never been understood to protect weapons solely based on their military function. Miller applied a two-prong test to determine the relevance of the Second Amendment to gun laws. A weapon had to be both of a type typically associated with the militia and used in some activity reasonably connected with a well-regulated militia. The Miller court correctly realized that an exclusive focus on the type of weapon could lead to the absurd result implicit in the current Appeals Court’s ruling. Indeed, the federal courts moved quickly to reject this potentially perverse result in Cases v. United States (1942). If Miller’s rule only applied to the type of weapon and protected all militia-style weapons then “Congress would be prevented by the Second Amendment from regulating the possession or use by private persons . . . of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns.... It seems to us unlikely that the framers of the Amendment intended any such result.”

In contrast to the Parker decision, the Supreme Court in Miller wrote that the Second Amendment was crafted to “assure the continuation and render possible the effectiveness of such forces [as the militia]” and “it must be interpreted and applied with that end in view.” While it is true that the opinion discussed the expansive nature of the Founding era’s militia, it did not adopt the modern gun rights view that the unorganized militia is the same as the well-regulated militia protected by the Second Amendment. The universal militia esteemed by many of the Founders, and the more elite select militias favored by others in the Founding era, were both well-regulated, ie., controlled by law. The modern unorganized militia is by definition not well regulated.

Reactions to Miller among legal scholars at the time it was decided support the orthodox reading of the case. A contemporary report of the decision in the California Law Review at the time was typical. It noted that the Court “held that the right refers to the people as a collective body.” Thus, in U.S. v. Tot, (1942) another federal court held that “it is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption . . . that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.” Tot’s collective rights reading of Miller soon became the standard interpretation of the meaning of the Second Amendment by the federal courts for the next seventy years.

Rather than apply the orthodox interpretation of Miller, the Parker court turned to a more recent case, U.S. v. Emerson. This controversial case was the first to assert that the Second Amendment was about the civilian use of firearms. Following the Emerson Court, the Parker Court relied more heavily on what was not said in the Miller decision, than what was said. “On the question whether the Second Amendment protects an individual or collective right, the Court’s opinion in Miller is most notable for what it omits.” Essentially, the Court in Parker decided to fill in the blanks with its own ideological preferences. This makes for bad law and even worse history. One might just as easily claim the Miller court did not use the collective rights language because it was so pervasive at the time that there was no need to belabor such an obvious point.

There is no need to listen to the sounds of silence to interpret Miller. The regulation of civilian weapons was, and always has been something to be regulated by the state subject to common law restrictions and the scope of the state’s broad, but not unlimited police powers. If the DC gun law is a bad policy it ought to be repealed, not struck down by activist conservative judges.

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