BY CHRIS W. COX
NRA-ILA Executive Director
Federal Appeals Court Strikes Down District of Columbia Handgun Ban
An historic decision by a federal appeals court says the Second Amendment protects an individual right, and it may restore self-defense rights to Washington, D.C. residents. But the battle isn't over.
On March 9, the U.S. Court of Appeals for the D.C. Circuit announced that Washington, D.C.'s handgun ban violates the Second Amendment. This ruling is the most important Second Amendment decision in years--and could lead to a full airing of the Right to Keep and Bear Arms before the U.S. Supreme Court.
The decision inParkerv.District of Columbia,like the Fifth Circuit's decision inUnited Statesv.Emerson(2001), found that the Second Amendment protects an individual right.
Senior Judge Laurence Silberman, a well-respected Reagan appointee, wrote the majority opinion in the Parker case. The opinion is scholarly, comprehensive and has national implications for the debate over the right to arms.
Unlike many previous Second Amendment cases, this challenge wasn't a "Hail Mary pass" by a criminal defendant. This time, the plaintiffs were law-abiding District residents who argued that D.C.'s oppressive laws infringe on their right to possess handguns in their homes, and to keep any firearm ready for use in self-defense.
The court had to answer four critical questions. First, it had to decide whether the plaintiffs had legal "standing" to challenge D.C.'s laws. If any did, the court would have to decide whether the Second Amendment protected their rights as individuals. And, if the Second Amendment does protect individual rights, the court would have to decide if it applies within D.C., and if D.C.'s laws violate the amendment's guarantee of the right to keep and bear arms.
First, the majority found that one plaintiff had standing to sue, because he tried to register a handgun with D.C.'s Metropolitan Police Department. Naturally, the police rejected him because of D.C.'s handgun ban. (This ruling is important in its own right; federal courts have made it very hard for anyone to challenge criminal laws in D.C. without being personally threatened with prosecution.)
Next, the majority rejected the District's argument that the Second Amendment "speaks solely to military affairs" and to organized militias that "are no longer in existence today." Calling D.C.'s argument "strained," the court found it "passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias."
The court noted that, while some federal and state courts have adopted the "collective rights" theory, the individual rights view has support not only from the Fifth Circuit in theEmersoncase, but also from at least seven state appellate courts, the U.S. Department of Justice, and "the great legal treatises of the nineteenth century" as well as from modern authorities such as Prof. Laurence Tribe. The decision is peppered with citations to leading individual rights scholars, such as Profs. Robert Cottrol (a trustee of the NRA Civil Rights Defense Fund, which filed a friend-of-the-court brief in the case), Raymond Diamond, Joyce Lee Malcolm, Eugene Volokh and Sanford Levinson. There's no question that decades of scholarly groundwork by these and other experts helped make this decision possible.
Turning to the text and history of the Second Amendment, the court found that "the phrase 'the right of the people,' when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual." Because the other provisions of the Bill of Rights protect individuals, "the Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well." According to the court, the right to arms also "was not created by government, but rather preserved by it," and "is broader than its civic purpose."
Since "the right to arms existed prior to the formation of the new government" in 1789, Judge Silberman wrote, the court must "look to the lawful, private purposes for which people of the time owned and used firearms." In the Framers' time, citizens owned guns for community defense and self-defense, as well as for hunting.
Relying on dictionaries of the Founders' time, the court found that "keep and bear" must mean "possess and carry." D.C.'s argument that these terms only refer to state maintenance of militias is "outlandish," the court said, and "mocks usage, syntax and common sense." "Keeping" arms, the court said, clearly "implies ownership or possession of a functioning weapon by an individual for private use."
Lawyers for the District tried to gain support from the Supreme Court's 1939 decision inUnited Statesv.Miller, which concerned the National Firearms Act's restrictions on possessing short-barreled shotguns. Judge Silberman agreed with the Fifth Circuit that "Miller does not lend support to the collective right model." TheMillerdecision, he wrote, was "focused only on what arms are protected by the Second Amendment … and not the collective or individual nature of the right."
The Supreme Court inMilleralso recognized, of course, that the Founders had in mind the rights of individuals "bearing arms supplied by themselves." Judge Silberman noted this "implicitly assumes" an individual rights position, so drawing lines between private arms and arms for defense of the community would be "a foolish and impractical distinction."
The Supreme Court in Miller also recognized, of course, that the Founders had in mind the rights of individuals "bearing arms supplied by themselves."
As a fallback position, D.C. argued that even if the Second Amendment protected an individual right, its handgun ban would be constitutional because modern handguns aren't the type of "arms" the Second Amendment protects. The court found this argument "frivolous"; as the Supreme Court said inMiller, citizens were expected to provide arms "of the kind in common use at the time." Judge Silberman noted that the Militia Act of 1792 required able-bodied free citizens between 18 and 44 to possess "a good musket or firelock" or rifle, along with ammunition and other gear; officers had to provide additional arms, including pistols. And "just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation … the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol."
D.C.'s laws could hardly stand against such powerful reasoning. Turning directly to those laws, Judge Silberman wrote that because "handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them." Likewise, D.C.'s ban on carrying firearms within the home "would negate the lawful use upon which the right was premised--i.e., self-defense," and the District's requirement that citizens store their guns unloaded and locked "amounts to a complete prohibition on the lawful use of handguns for self-defense."
In a dissenting opinion, Judge Karen Henderson made the remarkable claim that "the District is inescapably excluded from the Second Amendment because it is not a State."
Her reasoning would be cold comfort to the District, which usually demands to be treated as a state in every way. But her argument didn't get much traction with the majority, which pointed out that "the Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District." Besides that, the majority said, the reference to a "free State" in the Second Amendment clearly meant "a free country"--as James Madison himself had put it in his first draft of the Second Amendment.
Reaction from D.C. politicians was fast, furious and totally predictable. D.C. Mayor Adrian Fenty said the decision "flies in the face of laws that have helped decrease gun violence" in the city. Mayor Fenty's comment is nonsense, since D.C.'s murder rate--which had been declining before the handgun ban took effect--tripled in the first 15 years after the ban, and has consistently been the highest of any major U.S. city. Just last year, D.C.'s police chief declared the city's fourth "crime emergency" since 1998.
Gun ban groups took the panic to another level. The Brady Campaign--which has helped file dozens of unprecedented lawsuits against the firearm industry, blaming gun makers for the actions of criminals in D.C. and elsewhere--hypocritically denounced the ruling as "judicial activism at its worst." But the Violence Policy Center went furthest over the top, fulminating that the decision "may mark the beginning of a long, national nightmare from which we will never recover as a nation."
Despite its hysteria, the Violence Policy Center is right about one thing: This court decision is far from the end of the battle. Just one day before the ruling, U.S. Reps. Mark Souder (R-Ind.) and Mike Ross (D-Ark.) introduced H.R. 1399, the "District of Columbia Personal Protection Act," that would repeal the same provisions of the D.C. Code that the court found unconstitutional. At press time, Sen. Kay Bailey Hutchison (R-Tex.) was expected to introduce a companion bill in the Senate. "I agree with the court that the Constitution guarantees law-abiding citizens the right to bear arms and defend themselves," said Sen. Hutchison. "Protection of constitutional rights does not cease when you cross into the borders of the District of Columbia.
Indeed, the fight in court is far from over. As this article goes to press, the panel's decision is on hold while the District asks the full D.C. Circuit to rehear the case; by the time you read this magazine, the full court may have decided whether to rehear it. Regardless of the outcome in the D.C. Circuit, the losing side is likely to appeal to the U.S. Supreme Court. The only thing certain is that NRA will not stop fighting on all fronts, until all law-abiding citizens can enjoy the constitutional Right to Keep and Bear Arms.
The court's full opinion is available here.