10th Circuit: No Individual Right to Bear Arms

The Tenth Circuit Court of Appeals joins a growing number of circuits in holding that the Second Amendment does not confer an individual right to bear arms (pdf). For those who haven't read it lately, the Second Amendment says:

“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.”

The court reaffirms prior decisions holding that:

...to prevail on a Second Amendment challenge, a party must show that possession of a firearm is in connection with participation in a “well-regulated” “state” “militia.”.... The Second Amendment does not guarantee an individual the right to keep and transport a firearm where there is no evidence that possession of that firearm was related to the preservation or efficiency of a well-regulated militia.

The Court notes that the 5th Circuit (which includes Texas) is the only circuit to hold the Second Amendment conveys an individual rather than collective right to bear arms. In the Emerson case in the 5th Circuit,

The Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.”

Here's where the other circuits stand:

In contrast, the Fourth, Sixth, Seventh, and Ninth Circuits have adopted the most restrictive interpretation (also known as “the collective rights model”) of the Second Amendment. Under “the collective rights model,” the Second Amendment never applies to individuals but merely recognizes the state’s right to arm its militia.

[the] First, Third, Eighth, and Eleventh Circuits have all adopted a "sophisticated collective rights model.." Under this interpretation of the Second Amendment, an individual has a right to bear arms, but only in direct affiliation with a well-organized state-supported militia.

The Tenth Circuit joins the "sophisticated collective rights model" group of circuits. The Court also rejects a claim that authority to regulate the right to bear arms is reserved to the states under the Tenth Amendment. It held that private citizens do not have standing to raise such a claim.

My view is in accord with that of the 5th Circuit, but we're not moving to Texas just to exercise our individual right to bear arms.

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