Gun Control Back on the Burner
Experts disagree whether Supreme Court will hear appeal of D.C. Circuit ruling
By Stephanie Francis Ward
In the contentious battle over gun control, it seems even the fate of a recent appellate decision is open for vociferous debate.
The one matter on which both sides agree is that the decision, issued March 9, in a case filed four years ago, brings the argument over the Second Amendments guarantee of the right of the people to keep and bear arms back to the front burner.
Bruce Ackerman, a Yale Law School professor, says the decision, which strikes down portions of Washington, D.C., gun control laws, will be short-lived. Parker v. District of Columbia, No. 04-7041.
He notes the opinion by the U.S. Court of Appeals for the District of Columbia Circuit was 2-1, with a dissent by Judge Karen LeCraft Henderson criticizing the majority for what she says is its disregard of U.S. Supreme Court precedent.
The court of appeals is way out of line here, Ackerman says. Theres settled law, and suddenly two judges say, Lets have a little micro-revolution here.
This is judicial vanguardism, Ackerman adds. He suspects the opinion will be reversed en banc, and doubts the case could get the four votes needed for Supreme Court review.
But Nelson Lund, a professor at George Mason University School of Law in Arlington, Va., is among those who disagree. Much of his academic work centers on studying the Second Amendment.
Id be surprised if this were vacated by an en banc court, Lund says. If it stands, I think its probable that the U.S. Supreme Court will accept [the case].
If the Supreme Court decides the case on the legal merits, its a very easy case, Lund adds. This D.C. law is clearly unconstitutional.
The D.C. Circuits opinion maintains the Second Amendment protects an individual right to bear arms.
The city argued the amendments authors intended for the provision to apply only to organized militia members. At the time, the country didnt have an organized police force, municipal lawyers maintained, and states needed weapons to shield their militias from federal encroachment. Last week, Washington, D.C., Mayor Adrian M. Fenty said the city will appeal the D.C. Circuits ruling.
A significant portion of the opinion is devoted to semantics. The amendments wording 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 is divided into two clauses, the opinion states. The operative clause indicates the authors meant that most citizens had a right to bear arms, Judge Laurence H. Silberman wrote, regardless of militia affiliation.
In sum, 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, the opinion states. This proposition is true even though the people at the time of the founding was not as inclusive a concept as the people today.
Also, he writes that the Bill of Rights is almost entirely a declaration of individual rights. Since it includes the Second Amendment, Silberman says, that strongly indicates the provision was intended to protect personal liberty.
Every other provision of the Bill of Rights, excepting the 10th, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity, the opinion states. The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well.
One D.C. ordinance that was challenged prohibits carrying a pistol without a license. Obtaining such a license is virtually impossible, the appellants say, because the city generally bars the registration of handguns.
It is not illegal to keep a handgun in your house if it was purchased before 1976, when the city banned handgun ownership. But city ordinances prohibit licensed gun owners from moving the weapon within their private property, and lawfully owned firearms must be kept disassembled or bound by a trigger lock.
The law does allow individuals to have licensed, functional guns to protect businesses or for recreational use, such as hunting.
But you cant have any type of gun assembled in your house, and its a misdemeanor to walk around with a gun in your home or on your land, says Alan Gura, a D.C. lawyer who represents the plaintiffs. The law is extremely far-reaching and very draconian.
One of the six appellants is a Georgetown woman who owns a licensed shotgun. Another worked as a special police officer at a federal courthouse. Off-duty police officers in D.C. cannot carry firearms, and when the man finished his shift, he stored his weapon in a locker at work. He tried to register his gun with the city, the February 2003 lawsuit maintains, but was denied.
Our mission was very simplewe want the court to focus on the nature of the Second Amendment right, Gura says. If it means anything at all, it must mean that a law-obeying individual can have an ordinary functioning firearm, including a handgun, inside their house.
The D.C. attorney generals office will not comment on the matter, spokeswoman Traci Hughes says.
David M. Gossett, a D.C. lawyer who submitted an amicus brief supporting the citys position, says the majority decision is disappointing. His brief, filed on behalf of the Brady Center to Prevent Gun Violence, analyzed the history of the Second Amendment.
We found that the clear understanding of the founding fathers was all about preserving state militias and had nothing to do with an individual right of self-defense, Gossett says.
He says that when the Second Amendment was written, some states did have laws providing an individual right to bear arms. If the framers intended the Second Amendment to protect an individuals right to bear arms, Gossett says, its language would have been more similar to state laws extending such a right.
This is the second federal appeals court ruling to say the Second Amendment extends an individual right to bear arms. The 5th U.S. Circuit Court of Appeals, based in New Orleans, found in 2001 that the Second Amendment does protect an individual right to gun ownership, but the government could restrict that right. U.S. v. Emerson, 270 F.3d 203. But the 9th Circuit, based in San Francisco, found in 2002 that the Second Amendment does not provide an individual right to own guns. Silveira v. Lockyer, 312 F.3d 1052.
Despite numerous attempts since 2001 to use the Second Amendment to overturn various gun ownership bans, the Supreme Court has not ruled on such cases since 1939, when the court found that ownership of certain types of firearms could be restricted. U.S. v. Miller, 307 U.S. 174.
I think the U.S. Supreme Court has ignored this issue since 1939to be in the Bill of Rights and have so little precedent is very strange, says Stephen Halbrook, a Fairfax, Va., lawyer who represents firearm associations, manufacturers and owners.
©2007 ABA Journal
