Daily Writing Sample: Right to Keep and Bear Arms is Not ‘Property-Like’

By Joe Palazzolo

Todays DWS comes to us from the U.S. Court of Appeals for the Fifth Circuit via How Appealing and the Associated Press.

Errol Houston Jr. sued the City of New Orleans after the districts attorneys office refused to return a registered gun that police had seized when he was arrested on drug and firearm charges in 2008. The charges were later dropped.

Houston sued the city in July 2009, seeking the return of his gun and accusing law enforcement authorities of violating his due process and Second Amendment rights. A federal district judge dismissed the lawsuit the following year.

A divided Fifth Circuit agreed with the lower court. In the majority opinion,JudgeRhesa Hawkins Barksdale wrote (citations omitted):

Just as some regulation of speeche.g., of obscenity and defamationis outside the reach of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second. The right protectedby the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense.

Houston has not alleged defendants prevented his retaining or acquiringother firearms.Therefore, he has not stated aviolation of his Second Amendment right to keep and bear arms.

Judge Jennifer Walker Elrod, in her dissent, said the majority opinion contravenes the Supreme Courts 2008 ruling in District of Columbia v. Heller, which recognized an individual right to keep and bear arms, and its 2010 ruling in McDonald v. City of Chicago, which held that the right applies to state and local restrictions on firearms.

According to Elrod,

In the context of other enumerated constitutional rights, an equivalent per se exception for particular exercises of the right at stake (so long as other exercises of that right are permitted) would be intolerable. Consider,for example, a court holding that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that mightpublish the piece. Or consider a court holding that the Fourth Amendment is inapplicable to the unreasonable seizure of a specific automobile so long as the government does not prevent the owner from borrowing, renting, or purchasinga replacement vehicle. These examples should suffice to show the absurdity ofcourts recognizing categorical exceptions for each particular exercise of thoserights.In carving out such an exception from the Second Amendment, todays majority impermissibly treats the Amendment as a second-class right.

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Daily Writing Sample: Right to Keep and Bear Arms is Not ‘Property-Like’