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At this point in American history, when the individual’s constitutionally protected right to privacy is under encroachment by an executive branch obsessed with national security, the judicial branch of our federal government, in disregard of its own precedent, is now poised to recognize a new individual right that endangers public safety and, indeed, our security as a nation. On Nov. 20, the U.S. Supreme Court agreed to decide whether District of Columbia laws banning the private ownership and use of handguns and restricting the private ownership and use of rifles, shotguns and similar firearms “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia but who wish to keep handguns and other firearms for private use in their homes.” The very question the court presumes to answer presupposes “the Second Amendment rights of individuals,” a supposition at odds with the history of the Second Amendment and with an earlier decision of the Supreme Court. The new case, District of Columbia v. Heller, arises from a challenge brought principally by Dick Heller, a Washington special police officer who was denied permission to register a handgun for his private use. In 2004, the U.S. District Court for the District of Columbia followed a 1939 Supreme Court decision and rejected Heller’s claim that he had “an individual right to bear arms separate and apart from militia use.” That 1939 decision came in U.S. v. Miller, where Justice James McReynolds, a conservative Kentuckian and hardened foe of the New Deal, delivered a unanimous opinion that two Oklahomans did not have a constitutional right to transport an unregistered sawed-off shotgun into Arkansas in violation of federal firearms registration law. McReynolds’ opinion specifically rejected the contention that the firearms law offended the Second Amendment. Precisely because the shotgun had no “reasonable relationship” with “a well-regulated militia,” the court held that the Second Amendment guaranteed the two men no “right to keep and bear such an instrument.” The court ruled that the “obvious purpose” of the amendment was “to assure the continuation and effectiveness of such forces” and commanded, “It must be interpreted and applied with that end in view.” In a surprising departure from Miller, a split U.S. Circuit Court of Appeals for the District of Columbia, in Parker v. District of Columbia, reversed the district court’s decision last year, saying that a “well regulated Militia” is found in a mere “prefatory clause,” whereas the “operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias.” The majority acknowledged the “problematic . . . text of the Second Amendment[,]” but failed to grasp not only the historical, but the grammatical importance of the reference to “ [a] well regulated Militia, being necessary to the security of a free State,” which modifies and provides the rationale for the clause that follows. The dissenting judge, to be sure, chastised her brethren for their parsing of the constitutional language, writing, “until and unless the Supreme Court revisits Miller, its reading of the Second Amendment is the one we are obliged to follow.” She observed pointedly that, under Miller, the “two clauses” must be construed together so that the people’s right to keep and bear arms only “relates to” the “safeguard” of a militia. I practice in Massachusetts, where, in 1896, our Supreme Judicial Court, then including Oliver Wendell Holmes, commented that “the protection of a . . . constitutional provision has often been sought by persons charged with carrying concealed weapons,” but that it is within the “police powers” of the legislative branch to “regulate the bearing of arms” and “the mode of carrying arms.” A matter for the states In Miller, the Supreme Court acknowledged that “[m]ost if not all of the States have adopted provisions touching the right to keep and bear arms,” which vary with respect to “the scope of the right guaranteed.” To the extent there is any individual right to keep and bear arms, it is not protected by the Second Amendment but is instead recognized � or not � by one or more of the various state constitutions. So one might have thought. But the Ashcroft Justice Department concluded in a 106-page memorandum opinion in 2004 that “the Second Amendment secures an individual right to keep and to bear arms.” The D.C. Circuit cited approvingly to this opinion in Parker. Moreover, Chief Justice John G. Roberts Jr. told the Senate Judiciary Committee during his confirmation hearings in 2005 that Miller had “sidestepped” the issue and that he saw it as very much a still open question. Unfortunately for cities like Washington trying to curb gun violence, the question is now in limbo. In their certiorari petition, the district’s attorneys rightly recount the ills caused by handguns in the home, in school and on the street. However one reads the amendment, there’s no “suicide clause” in it that requires us to sacrifice public safety and security in favor of an unlimited individual right to keep and bear arms of the type now recognized by the D.C. Circuit and possibly soon to be approved by our nation’s highest court. John J. McGivney is a partner at Boston-based Rubin and Rudman.

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