Happiness is a warm court

Via How Appealing: the Ninth Circuit today concluded that the Second Amendment confers no individual right to own and carry arms. (That link is a PDF.) I recommend reading the opinion if you’re interested in such things. I suspect the language and arguments presented therein will be core to the gun control debate for some time, at least for those who are pro-gun control.

The argument seems to rest on the meaning of the phrase “keep and bear arms.” Judge Reinhardt’s opinion states that “bear arms” is a phrase used, historically, only in a military context. Quoting Aymette v. State, 21 Tenn. (2 Humph.) 154 (1840): “A man in pursuit of deer, elk and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms.” Given that interpretation, he further reasons that the phrase would be nonsensical if the phrase “keep arms” had a wider interpretation than the phrase “bear arms.”

I am brutally summarizing this, and I am not a lawyer. I really do recommend reading it if you intend to mention the ruling in polite company, or even form opinions on it for yourself.

Here’s a sort of a counter argument. He doesn’t include any actual reasoning beyond a list of cases which he claims contradict the Ninth Circuit decision. The first one cited is the same decision I quoted above; I think that he might have done well to at least explain why the decision supports him and not the Ninth Circuit. Naked argument by reference is so medieval. I am hoping to see more and better disagreement soon.

Glenn Reynolds links to an article of his which discusses the problems with the general class of argument made by the Ninth Circuit, which seems to be worth reading. It doesn’t really address the decision, though. Note in particular page 30 of the decision, which postulates a sort of feudalistic state militia system in which the armies of the states are subject to federal control. This counters Reynolds’ line of argument, which requires the state militias to be protection against a tyrannical federal government. (A pity. I’m sympathetic to that line of argument.)