Advocates of the “individual” construe the emendment simply on the “right to bear arms” (isn’t it interesting that the term ‘bear’ is used instead of own or possess – another road obviously not explored) and simply ignore the Militia issues or pose some halfassed individual making up the militia takes his personal rifle to war crap.

So now I would like to hear, as a fool and a novice and a rank and order ordinary citizen, what the Militia part is and the centralization of weapons storage (armory)….means.

I would love to hear this.

The disposal of ‘common defense’ on its own, esp. in context of the understanding of the time, is not really such a clear matter one way or the other. Personal defense was deemed a right. It is questionalbe if it is the concern of the amendment … the ‘militia’ language that WAS included is only part of the reason why.

But, there is a debate, obviously.

If one thinks the 2A is a nullity per Perpich etc., it is per SC rule. Miller focused on the ‘common defense’, citing Aynette v. State that rejected the approach of the inferior court here. Even if correct, the DC Circuit has no power to overule Miller.

A single case, one that held the rule was so novel that immunity was granted, is not a great reflection of the power of the 3A. Meanwhile, official executive policy, de facto congressional policy, and many state courts recognize an individual rights rule. In practice, it is secured fairly well.

-David Stephens

The Second Circuit has also held that the Third Amendment was enforceable against the states (via incorporation through the 14th Amendment) in Engblom v. Carey.

The D.C. Circuit has now held that the Second Amendment is an enforceable individual right against the federal government.

(To have held otherwise, or interpreted the Second Amendment as merely a collective state’s right, would have rendered the Second Amendment virtually meaningless in light of cases like Perpich curtailing the autonomy of state national guard units, thus violating the canon of constitutional interpretation that says that ever word and clause of the constitution must be given independent force and effect, see Holmes v. Tennison (1840) and Marbury v. Madison (1803)).

But the D.C. Circuit, of course, did not address (and did not need to address) whether Second Amendment rights are enforceable against he states through the 14th Amendment.

So the Second Amendment still has less protection than the Third.

If some drunken redcoats forcefully demand to quarter in my daughter’s bedroom, I’m shooting them.

I’m not sure how this follows. The 3A guards against quartering of troops without consent, providing a privacy interest along with a nod toward the civil control of the military.

This goes nicely with a view of the 2A that focuses on a citizen militia, having a gun as part of a wider organized body, not for personal use, which was treated separately under the common law as a personal, not a civil right/obligation of citizenship.

So the 2A and the 3A are completely unrelated?

Guess owning a gun is an economic liberty so maybe the privileges and immunities idea isn’t so far off in terms of some visions, although I favor substantive due process in this area as well. So narrowly tailored police power regs would be okay but blanket prohibitions like DC ought to be right out.

As I have often said blogging on my other favorite subject, heating equipment, if it is a crime to buy an oil boiler, only criminals will own oil boilers. (see, e.g. http://forums.invision.net/index.cfm?CFID=3363936&CFTOKEN=c089ff-2b0b0675-4db9-47a7-ae0d-ab338ec16149&CFApp=2&reset=Y )

It seems self evident that self defense in the home isn’t a textual premise, but the question is whether the protection is broader than the purpose. If it is non-core purposes that tend towards an armed citizenry, it follows that those rights shall not be abridged lest the motive for maintaining personal firearms diminishes thus effectively disarming the citizen militia.

But I didn’t sign in to babble, rather this appears to be the place where conspiracies against the Volokh conspiracy are reported and ever since they were noted as having several astute comments on this 2nd amendment case, the site will not load.

Maybe the DC mayor who was whining about this has launched a Denial of Service attack on Volokh.

Brian Bishop

The U.S. v. Miller case spoke of the “common defense.” This discussion of ‘personal’ defense might be different [see, e.g., Saul Cornell's "A Well Regulated Militia."]. Thus, it might not be useful to treat such cases as 2A matters.

A ‘privilege and immunity’ to have guns for personal defense, for instance, would avoid the dissent’s arguments. See also, the 1980s 2nd Cir. Quicili ruling on handguns … the dissent spoke of a right to privacy in one’s home, including to protect oneself. Finally, the value of personal weapons for personal defense clearly was important to freemen after the Civil War, and some have pointed to a EP value to women as well.

Other arguments can be made, surely, including that personal defense has public value in dealing with crime etc. But, it seems to me that just as this case wouldn’t necessarily apply to the states (though the majority’s reasoning likely would), the continual use of the 2A in this fashion seems a bit off.

It is surely important for the people to be involved in the militia (and jury/voting), and it has individual rights flavor, but having a gun to protect oneself in one’s home is probably not the core concern of the 2A.