Link to DC gun decision:
http://www.dcd.uscourts.gov/03-834.pdf Judge Walton comes to his conclusion in much the same way as did Judge Reinhardt in Silveira. He makes the following errors in his arguments regarding individual v. collective rights, and these are more likely deliberate misinterpretations considering his education and the resources available to him.
1) reading the prefatory clause as a qualifier though it is not written in that form,
2) disregarding the US Supreme Court's definition of term "militia" in Miller,
3) claiming to be perplexed by the term "keep" though it is cited in both Miller and Aymette,
4) ignoring that "bearing arms" was used repeatedly during the ratification debates of the Bill of Rights as the action of an individual person (rather than the action of a state or the people in the collective sense).
The Supreme Court in Miller supplies a clear definition of the term "Militia", provides historical references to the types of arms that an individual was expected to "keep", and historical background on the prefatory clause.
From Miller:
The General Assembly of Virginia, October, 1785 (12 Hening’s Statutes c. 1, p. 9 et seq.), declared:
‘The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.’ It further provided for organization and control of the Militia and directed that {b}‘All free male persons between the ages of eighteen and fifty years,’ with certain exceptions, ‘shall be inrolled or formed into companies.’ ‘There shall be a private muster of every company once in two months.’ Also that ‘Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutred, as follows: ... every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good <307 U.S. 174, 182> powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer.(also from Miller)
"The signification attributed to the term
Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time"
(end quote) (my emphasis)
From Aymette:
"The convention, in securing the public political right in question, did not intend to take away from the legislature all power of regulating the social relations of the citizens upon this subject. It is true, it is somewhat difficult to draw the precise line where legislation must cease and where the political right begins, but it, is not difficult to state a case where the right of legislation would exist. The citizens have the unqualified right to
keep the weapon, it being of the character before described as being intended by this provision. But the right to bear arms is not of that unqualified character. The citizens may bear them for the common defence; but it does not follow that they may be borne by an individual, merely to terrify the people or for purposes of private assassination. And, as the manner in which they are worn and circumstances under which they are carried indicate to every man the purpose of the wearer, the legislature may prohibit such manner of wearing as would never be resorted to by persons engaged in the common defence...
(end quote)
Even Aymette, which reads the Tennessee Constitution and the Second Amendment very narrowly, does not deny that "keep" means private ownership, or that there is a right of the citizens to "bear arms" which can not be regulated out of existence. Aymette states that the right to "bear arms" is qualified, and only relates to common or collective defense, but people must still be allowed to bear arms openly as long as they are not terrorizing others, and that the "keeping" of arms is an unqualified right.
Also Judge Walton ignores the reference to individual action associated with "bearing arms" in this quote from page 47 of Seegars v. Ashcroft:
" The original version proposed by Madison read:
“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."(end quote)
Judge Walton sees only the military reference and ignores that Madison was using "bearing arms" to refer to an individual's action (in this case, "to render military service in person").
Since "keep arms" refered to an invidual's action and "bearing arms" refered to an individual's action; it makes no sense to conclude that "the right of the people to keep and bear arms" is a purely collective right, or a right of the state.
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