Shotgun News, May 1, 2007
We have just experienced a major victory for gun rights. For a couple of years now, gun rights activists in Washington, DC have been suing the District of Columbia over its 1976 gun control law. That law prohibited new registration of handguns, thus prohibiting the lawful importation of handguns into the District; required registration of all long guns; and requiring firearms to be stored unloaded and disassembled or locked up—making it difficult (although not completely impossible) for residents of the District to use a gun in self-defense.
The suit challenged the ban on new handgun registrations, and a part of the law that required a license to carry a gun—even if you were only carrying a gun from one room of your house to another. If you want to know how crazy the DC law is, one of the plaintiffs in this suit is a DC police officer, who was not allowed to register a new handgun for possession in his own home!
The grounds for the suit were that the DC laws violate the Second Amendment—that there is an individual right to possess handguns and other firearms in one's home for self-defense, and that these laws were contrary to the Second Amendment. The trial court found for DC, claiming that the Second Amendment only protects the right of individuals to bear arms as part of a militia.
The Court of Appeals, however, ruled that the Second Amendment protects an individual right to keep and bear arms--and ruled that at least some parts of the DC gun control law are unconstitutional.[1] The decision acknowledges that the federal courts have given a variety of contradictory statements about the Second Amendment, but points to the historical evidence that it protects an individual right to own firearms—and would seem to force the Supreme Court to resolve the differences between different circuits of the Court of Appeals.
The decision reads in part, “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. This proposition is true even though 'the people' at the time of
the founding was not as inclusive a concept as 'the people' today. ... To the extent that non-whites,
women, and the propertyless were excluded from the protections afforded to 'the
people,' the Equal Protection Clause of the Fourteenth Amendment is understood
to have corrected that initial constitutional shortcoming.”
DC's prohibition on new handgun registrations? The Court of Appeals said that would have to go away—because handguns are a category of “arms” protected by the Second Amendment. They pointed out that the Militia Act of 1792, adopted at about the same time as the Second Amendment, required at least some members of the militia to purchase handguns.
The Court of Appeals did not say that the right was
unlimited. Like the right of free
speech the government may impose “reasonable restrictions” on the “time,
manner, or place” that the right is exercised.
As an example, they pointed out that a law prohibiting carrying a
firearm while intoxicated would be a “reasonable restriction.” They argued that a ban on concealed carry
might also be Constitutional. “These regulations promote the
government’s interest in public safety consistent with our common law
tradition. Just as importantly, however, they do not impair the core conduct
upon which the right was premised.” If
this is making you nervous—well, be patient.
How about the ban on a loaded, operative firearm in the home? The Court of Appeals said that law will have to go away.
What about the insane law requiring a license to carry a gun within your own home? Yup, that is also contrary to the Second Amendment.
Now, there's quite a bit of DC's law that is not affected by this decision. There is still a mandatory gun registration law—but note that by making it mandatory, the District has created a situation where they will have no choice except to allow law-abiding residents to register handguns.
The ban on carrying a handgun outside your home? The plaintiffs in this case weren't challenging that law, and so the Court of Appeals said nothing about that. The discretionary concealed carry permit system? Ditto—still in place.
Now, some gun rights activists (and, I think, some of my fellow columnists here in Shotgun News) are going to be very upset that we didn't get every DC gun control law struck down at once. Remember how we lost our gun rights—one slice of the loaf at a time, until, in DC, all we had left was one crust. We have now regained several of the slices that makes up gun rights in DC. I see no reason to assume that we can't file suit again, once all the appeals are complete, to get another slice, then another.
For residents of DC, this will be an important gain. For those of us in the rest of America, what is even more important is that the DC Court of Appeals has not only recognized that the Second Amendment protects an individual right, but it has found some gun control laws that do not qualify as “reasonable restrictions.” USA v. Emerson (5th Cir. 2001) also recognized the Second Amendment as an individual right, but because the defendant in that case was subject to a domestic violence restraining order, the 5th Circuit Court of Appeals decided that this was a reasonable restriction on Dr. Emerson's rights.
There's some room for legitimate disagreement about whether the particular law in the Emerson case is “reasonable” or not, but it seems clear that some gun control laws do not violate the Second Amendment (for example, prohibiting convicted murderers from owning guns, or requiring guns to have serial numbers). The Parker decision gives examples of laws that clearly do violate the Second Amendment—and that's a starting point.
Once the appeals from the Parker decision are complete, we can file suit against other federal gun control laws. For example, if I'm camping in Yellowstone National Park, does the Second Amendment protect my right to have an appropriate grizzly bear discouragement device in my tent? There's a plausible argument based on this decision that I do—and this could lead to a court decision overturning the current ban on possession of defensive firearms in national parks. (On the other hand, a ban on weapons primarily intended for hunting might be upheld as a “reasonable restriction.”)
Another reason that this decision is so momentous is that, if upheld on appeal, we now have a basis for arguing about whether the Fourteenth Amendment imposes the Second Amendment on the states. Until now, most of the time that our side has argued that a particular state law violates the Second Amendment, the courts have responded that:
1. The Fourteenth Amendment does not incorporate the Second Amendment.
2. The Second Amendment doesn't protect an individual right.
If the U.S. Supreme Court upholds this decision, we will be in a position to argue about whether the Second Amendment, through the Fourteenth Amendment, applies to the states. As I've mentioned in this column before, the laws striking down racial segregation were not overturned as the result of one lawsuit and one court case. A series of such cases, starting with Missouri ex rel. Gaines v. Canada (1938), leading through Sweatt v. Painter (1950) , eventually reached Brown v. Board of Education (1954). Each suit used building blocks decided in previous cases—and that is what we are going to do with the Parker decision.
Now, before you break out the champagne, DC government has already announced plans to appeal this decision. They may request an en banc hearing—which means that instead of just three judges on the DC Court of Appeals hearing the appeal, they round up a much larger panel. We could lose such an appeal—and the Supreme Court might decide not to hear our appeal.
DC government might appeal directly to the Supreme Court. We could lose there, although we think that at least three justices are on our side—and a couple more might decide to join them. If we lose before the Supreme Court, this would be a major catastrophe for us.
Unlike many of the right to keep and bear arms cases that have worked their way up through the courts over the years, where the defendant is a criminal of some sort, or at least an unsympathetic character, we have squeaky clean plaintiffs on this case, so the Supreme Court doesn't have to worry about releasing a criminal if they make the right decision.
Let's avoid the two extremes: don't whine that we didn't get everything we wanted at once; let's not get cocky about how we are going to win every case from now on. There's a lot of hard work still ahead—but the chances of getting the federal courts to finally acknowledge our rights is looking better than it has for decades.
Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), is available in bookstores. His web site is http://www.claytoncramer.com.
[1] Parker v. District of Columbia, No. 04-7041, (DC.App. 2007), available at http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf, last accessed March 17, 2007.