Reviving "law office history": how academic and historical sources influence Second Amendment jurisprudence.

• Author: Small, Adam

1. INTRODUCTION

   After centuries of relative obscurity, the Second Amendment has become the center of an intense academic and legal battle during the last twenty years. Although the United States has long regulated firearms, (1) only in the 1980's did gun control become a prominent political issue. (2) Once gun control entered the nation's political conscience, there was a surge in academic study of the Second Amendment's language and the historical sources surrounding its adoption. (3) Countless books and law review articles have been published on these issues, and even noted constitutional theorists such as Laurence Tribe have changed their understanding of the Amendment. (4)

   In most areas of constitutional law, scholarship tends to follow the courts. The academic debate surrounding the Second Amendment, however, has had a profound impact on courts' analyses of the Amendment. This Note analyzes how the two most recent circuit court opinions discussing the Second Amendment rely on academic writing and historical sources to construct opposite conclusions regarding the Amendment's meaning and purpose. There are some scholars and jurists who have criticized the use of academic writing and historical sources in construing the Second Amendment, referring to it as "law office history." (5) These critics claim that those who use academic and historical sources to construe the Second Amendment use quotations from these sources selectively and without regard for their context; and that as a result these quotations take on a meaning different from what the authors intended. (6) A comparison of the most recent circuit court opinions interpreting the Amendment, (7) however, reveals that despite these criticisms, the use of academic and historical sources to construe the Amendment is unlikely to subside. As courts begin to assess the constitutionality of particular gun control regulations, academic and historical sources are likely to play an important role in determining what kind of laws infringe on the rights guaranteed by the Second Amendment.

   The text of the Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (8) The academic debate has focused on the threshold issue of whose rights the Amendment protects and centers on the preamble to the Amendment. According to the states' rights or collective rights model, the Amendment protects a state's right to preserve and arm its militias. (9) Therefore, individuals lack standing to bring claims under the Second Amendment. This position has been adopted by two federal circuit courts. (10) The individual rights model, however, contends that the preamble defines only the purpose of the right. (11) Thus, supporters of the individual rights model argue that the Second Amendment prevents the federal government from disarming militias by protecting the individual right to keep and bear arms. (12) According to this view, individuals have the right to keep and bear arms, even if they are not affiliated with a formal militia. (13) This position was not accepted by any of the circuit courts until 2001, when the Fifth Circuit adopted it in United States v. Emerson. (14)

   A third theory exists between these two models. This intermediate position, sometimes referred to as the sophisticated collective rights model, (15) maintains that individuals have a right enforceable against the federal government, but only to the extent that the individual is affiliated in some way with a militia, and that the weapon at issue is suitable for use in a militia. (16) This position has many variations but has been adopted by several circuits in one form or another. (17) Until March 2007, the District of Columbia Circuit and the Second Circuit were the only federal circuits not to have adopted one of these three models.

   In December 2006, the United States Court of Appeals for the District of Columbia Circuit faced a challenge brought by private citizens to the District's gun laws. (18) The District of Columbia's gun laws are considered to be among the most restrictive gun control laws in the nation. (19) The D.C. Code (1) prohibits the new registration of a pistol not registered in the District prior to 1976; (20) (2) requires that a registered firearm be kept "unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia;" (21) and (3) requires that an additional license be obtained from the Chief of Police to carry a pistol anywhere in the District. (22) These provisions combine to effectively ban handgun ownership and the use of handguns for self-defense.

   The majority of a three-judge panel invalidated the laws in March 2007. (23) In an opinion by Senior Circuit Judge Silberman, the court held that the Second Amendment "protects an individual right to keep and bear arms." (24) The majority in Parker v. District of Columbia held that the right includes the private use of arms for hunting and self-defense, (25) and that although the Second Amendment has an important civic purpose of helping to preserve the citizen militia, "the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia." (26) The Parker court's decision represents the first time since ratification of the Bill of Rights in 1791 that a federal appellate court invalidated a firearms regulation as infringing on Second Amendment rights. (27) Both parties appealed the court's decision, and the Supreme Court granted certiorari on November 20, 2007. (28)

   After providing a brief overview of the background and precedent surrounding the Second Amendment in the Federal circuit courts of appeals, this Note will compare how the two most recent circuit court opinions analyzing the Second Amendment, Silveira v. Lockyer, (29) decided in 2003 by the Ninth Circuit, and Parker v. District of Columbia, (30) decided in 2007 by the D.C. Circuit, rely on different academic and historical sources to construct opposing interpretations of the Second Amendment's meaning and purpose. The Note will conclude with a discussion of the potential implications of the decision in Parker and how academic and historical analysis could be used to delineate the limits of the individual right identified by the Parker court.

2. BACKGROUND

   Until 2001, no federal circuit court of appeals had held that the Second Amendment protects an individual right to keep and bear arms. (31) The Fifth Circuit was the first to adopt the individual rights model in United States v. Emerson. (32) Prior to 2001, courts conducted little analysis of the Second Amendment; rather, they relied on the United States Supreme Court's holding in United States v. Miller (33) to reach their conclusions. (34) The paragraph of Miller often cited by the lower courts is that in which the Court stated:

   In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. (35) Accordingly, when faced with challenges to federal gun laws, the circuit courts interpreted Miller to hold that the Second Amendment either applies only to the states' rights to maintain militias, or requires an individual to demonstrate a reasonable relationship between his possession of a weapon and "the preservation or efficiency of a well regulated militia." (36)

   Emerson marked a watershed in the Second Amendment jurisprudence. Rather than requiring a rational relationship between ownership of a weapon and service in a militia, as suggested by Miller, the Emerson court conducted an extensive analysis of academic and historical sources to support its conclusion that the Second Amendment protects the right of individuals. (37) In response, the Department of Justice reversed its longstanding position that the Second Amendment only prohibits those laws that interfere with the operation of a well-regulated militia and adopted the view of the Fifth Circuit. (38) Second Amendment defenses were also raised by criminal defendants throughout the nation. (39) Some commentators, however, have downplayed the importance of Emerson, characterizing it as "an anomalous ruling." (40)

   Emerson also led to a number of challenges to federal statutes relating to weapon sales and possession. (41) In Silveira v. Lockyer, (42) decided in 2002, the Ninth Circuit faced such a challenge to the California Assault Weapons Control Act (AWCA), (43) which significantly strengthened restrictions on the possession, use, and transfer of assault weapons. Silveira provided an opportunity for the Ninth Circuit to reexamine its Second Amendment jurisprudence in light of Emerson. The Ninth Circuit conducted its own analysis of the Second Amendment's text and purpose. (44) Like the Emerson court, the Ninth Circuit relied on academic sources throughout its analysis. (45) The Silveira court, however, reached the opposite conclusion, holding "the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment," (46) and "the Second Amendment imposes no limitation on California's ability to enact legislation regulating or prohibiting the possession or use of firearms." (47) For those favoring gun control, this decision reinforced the conclusion that Emerson was wrongly decided.

   Given the well-defined split that developed between the Fifth and Ninth Circuits, Parker v. District of Columbia (48) presented the Court of Appeals for the D.C. Circuit with a...