How can we explain the court's anti-gun control ruling in Parker v. District of Columbia?

I happen to agree with Fz's reading of the Second Amendment: namely, that it protects the right to bear arms purely for the purpose of establishing a well-regulated militia. So why didn't the Court of Appeals for DC follow this line of reasoning in Parker v. District of Columbia? Well, an article that ran in the New York Times a while back argued that liberal legal scholars, of all people, were the main force behind a general change in the interpretation of the Second Amendment:

There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.

In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.

Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right.

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”

Clearly, the liberal legal scholars didn't intend for this to happen; but they were forced to embrace an individual-rights interpretation of the Second Amendment by their own philosophy of expansively interpreting the Constitution. Not everyone, however, is willing to give so much credit (or blame) to the liberals for this sea change in constitutional interpretation. Jack Balkin credits larger forces:

If the Supreme Court eventually holds that the Second Amendment protects an individual right, it will largely be because social and political movements changed popular opinion and influenced elite legal opinion. These changes have been coming for some time: The Bush Justice Department has already adopted the individual rights position, and so too has the D.C. Circuit in its recent Parker opinion.

And Randy Barnett at the Volokh Conspiracy thinks we're ignoring the obvious:

What the story leaves out, of course, are the prodigious efforts of those "libertarian" and "conservative" constitutional scholars who did much of the heavy lifting when it comes to the original meaning of the Second Amendment AND the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

On the Second Amendment (Inspired by Parker v. District of Columbia)

The Supreme Court may soon have a chance to decide what exactly the Second Amendment implies. Recently, in a case called Parker v. District of Columbia (more on that here), the Court of Appeals for DC struck down a strict gun control law, and the judge who authored the opinion stated that the District should appeal to the Supreme Court. Of course, there is no guarantee that the Court will accept the case, but if it does, this would be an interesting chance for it to rule on how far the right to bear arms goes, and given the current orientation of the Court, gun control advocates may not be too happy with the results.

With the facts of this specific case aside, here is my interpretation of the Second Amendment. The Amendment reads, "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." So, unlike so many other constitutional rights, it gives an explanation as for why the right exists, and in my interpretation at least, it sets limits on that right.

Using only the language of the amendment as guidance, let's ask ourselves, "Why does the right to keep and bear arms exist?" It seems rather clear that the purpose of it is either to establish or to ensure the protection of "well regulated militias." As far as I know, "militias" have evolved from groups of private citizens to what we now call the state national guards. So, back in the 18th century, private gun ownership did allow for well-regulated militias to be established. However, such is not the case today.

Of course, the common argument is that even though we (aside from the national guards, of course) do not have well-regulated militias, private ownership of guns ought to be constitutionally protected in case private citizens were ever to find themselves in the position where they would have to attempt to establish a "militia" and defend against an oppressive government (this argument is enhanced by the fact that the state national guards are under the control of the President).

Despite the humor involved in such a claim (a bunch of rednecks with shotguns are going to take on the United States military?), it is foolish on other grounds: it has no basis in the Constitution. The fact of the matter is that private owners who may or may not (with the odds on the latter) have to assemble to form some sort of "militia" do not constitute a "well-regulated militia." If these private owners assembled once a month, say, and conducted drills, or at least had some sort of structure, we might be able to consider them a militia. But, as it stands, a group of unaffiliated private owners does not constitute a "well-regulated militia." Thus, I argue that the Second Amendment does not protect private ownership of guns.

Certainly, there may be other arguments to be raised regarding the usefulness of private gun ownership (e.g. guns provide protection in an inherently unsafe environment), but they do not find basis in the Constitution. If the Second Amendment simply read "the right to bear arms shall not be infringed," I would not be raising these concerns. However, it explicitly states the reason why that right ought not to be infringed. And modern private gun ownership simply does not square with the goals of the Second Amendment.