Eugene Volokh is discussing the very recent Ninth Circuit decision on the right to bear arms outside the home. See also here and here. Eugene’s comments are well worth reading. Here is one interesting excerpt from the decision.
… with Heller on the books, the Second Amendment’s original meaning is now settled in at least two relevant respects. First, Heller clarifies that the keeping and bearing of arms is, and has always been, an individual right. See, e.g., 554 U.S. at 616. Second, the right is, and has always been, oriented to the end of self-defense.
See, e.g., id. Any contrary interpretation of the right, whether propounded in 1791 or just last week, is error. What that means for our review is that historical interpretations of the right’s scope are of varying probative worth, falling generally into one of three categories ranked here in descending order: (1) authorities that understand bearing arm s for self-defense to be an individual right, (2) authorities that understand bearing arms for a purpose other than self-defense to be an individual right, and (3) authorities that understand bearing arms not to be an individual right at all.
To illustrate, a precedent in the first category that declared a general right to carry guns in public would be a great case for Peruta, while a decision in the same group that confined exercise of the right to the home would do his position much damage. By contrast, those cases in the third category — which, like the dissenting opinions in Heller, espouse the view that one has a right to bear arms only collectively in connection with militia service and not for self-defense within or outside the home — are of no help.
It’s very important to understand what they’re arguing and what they’re not. But first, let me rehearse my view of the Second Amendment.
Recall that I view the Second Amendment as primarily and first of all a restriction on the power of the federal government. It was meant to frame in, or circumscribe the centralized powers. Therefore, it needed only one reason to restrict that power, that reason being stated as concerning the militia. The Second Amendment is not restrictive, it is inclusive. I’ll return to that in a moment.
Later, the Second Amendment was applied to the States through incorporation, and thus it applies to all U.S. citizens regardless of State. However, this should have been superfluous at the time, since most States (Illinois being one exception, having been corrected only recently) recognized the right to bear arms in State Constitutions. It should have been … but it wasn’t because of collectivist designs on control.
God gives me my right to bear arms. Man can and should only recognize and respect that right. I do not have to be a member of the militia to justify my right to own weapons (the Second Amendment gives only one reason that the centralized powers cannot infringe on my rights to bear arms – there are many others). Again I say – and always remember this – God gives me the right to weapons and to use them for self defense.
Such notables as my friend Bob Owens have asked the question, loosely paraphrased, if militia membership is required, then what kind of training should we be engaged in?
No, and a thousand times no. Paraplegics, the elderly, shut-ins, and all manner of people who cannot be a member of the militia have just as much of a God-given right to weapons as does a healthy, 19-year old strapping young man ready for service. It does no good to say that we’re all member of the unorganized militia, because my 90 year old grandmother in-law cannot get herself out of bed. It’s a lie and a subterfuge to say otherwise, and it avoids the hard question about the ultimate root of my rights.
Now back to what the Ninth Circuit said. While I am in both categories (i.e., right to bear arms for self defense and also for resistance to tyranny), again, it’s important not to misconstrue their words.
The case before them had nothing to do with the militia or resistance to tyranny. It had to do with the right to bear arms at all times for personal self defense. Thus, decisions, case law, and legal texts that have to do with anything but this are irrelevant to their decision. They lack probative worth in this context.
I think that this is right, and I think that this is generally a good decision. Let me make a careful note that I am not finished reading the decision, and I may stumble upon something outlandish. I’ll point it out if I do.
David Codrea says that he doesn’t cede the decision whether we have a right to bear arms to the Ninth Circuit. Properly so. God gives it to me, and what God gives me, no court can take away. But for the trashy decisions handed down by the Ninth Circuit, this one is surprising and delightful to read (so far). And I do like their focus on the historical context of the constitution rather than on what judges have to say about it from their ivory tower perches today.
For more reading on this subject, see my Christians, The Second Amendment And The Duty Of Self Defense.