‘An Individual Right’
Appeals Court Strikes Down DC Handgun Ban
by Dave Workman
Senior Editor
Buried in a landmark Washington, DC, Appeals Court ruling that declared the city’s 1976 handgun ban to be unconstitutional is the notation by Senior Judge Laurence H. Silberman that “The right of self-preservation…was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government.”
In a 2-1 ruling handed down Mar. 9 in the case of Parker v. District of Columbia, the court majority held that the Second Amendment affirms and protects an individual right to keep and bear arms and that, when “properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias.” In so ruling, the court declared the city’s handgun ban to be unconstitutional.
Shockwaves from the ruling continue to ripple across the political landscape. The ramifications of such a ruling, should it be appealed to the US Supreme Court and eventually upheld, are staggering. Gun control advocates have expressed concerns that this would open up legal challenges to virtually every gun law in the country. While the city promised to appeal and fight the case all the way to the high court, it might just be that not everyone in the anti-gun community is that eager to push this case.
Surprisingly—or perhaps not so, depending upon which gun rights forum one reads—CBS and ABC network news ignored the ruling in their newscasts that evening, while NBC’s Brian Williams and reporter Pete Williams led with the story on that network’s evening news broadcast.
It was the first time in history that a gun law has been overturned on Second Amendment grounds, noted Joe Waldron, executive director of the Citizens Committee for the Right to Keep and Bear Arms.
Alan Gottlieb, founder of the Second Amendment Foundation, which submitted an amicus brief on the case, called the ruling “a landmark for liberty, and an affirmation that everything the gun rights community has been saying for years is correct.”
NRA Executive Vice President Wayne LaPierre, quoted by The Washington Post, observed, “The only people who have anything to fear from a decision like this are the people who intend to break into someone’s home in the middle of the night.”
Larry Keane, vice president and general counsel for the National Shooting Sports Foundation, called the ruling a “watershed moment for the Second Amendment.”
Washington, DC, Mayor Adrian Fenty was enraged by the ruling and vowed the city would appeal, clear to the Supreme Court if necessary. He said Silberman’s majority ruling “flies in the face of laws that have helped decrease gun violence.”
Plaintiff’s attorney Alan Gura told Gun Week the ruling was “huge.” He described the plaintiffs to The Washington Post as “six average, normal people who come from all walks of life. They just want to have their rights respected by the city.”
Plaintiffs included Shelly Parker, a community activist who has been threatened by drug dealers she tried to drive out of her neighborhood; Tracey Ambeau, who also wanted to keep a gun for personal protection in her apartment; Tom Palmer, who once used a gun in California to discourage some thugs intent on beating him up; Gillian St. Lawrence, who has a shotgun in her home but it is rendered inoperable for defense under the current law; George Lyon, who has to leave his guns outside the city but believes it is his constitutional right to have a gun where he now lives in the District, and Dick Heller, who perhaps became the lynchpin participant in the lawsuit because the court ruled that he was the only one of the group with legal standing, because the city turned away his application to register a handgun in the district.
The 56-page majority opinion literally dismantled one of the key contentions of anti-gun extremists over the past several years, that the 1939 Miller decision by the Supreme Court held that the Second Amendment is a “collective right” that allows states to organize and maintain militias, now considered to be the National Guard.
Judge Silberman wrote, “The Amendment does not protect ‘the right of militiamen to keep and bear arms,’ but rather ‘the right of the people.’ ”
Debunking Arguments
In what obviously was meant to debunk the militia argument, Silberman wrote, “if the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did.”
Perhaps most amusing about the ruling was that the dominant media, for the most part, apparently could not bring itself to report that Silberman wrote, “To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms.”
And equally important, the judge noted that this right “was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).”
Former Georgia Congressman Bob Barr, a member of the National Rifle Association’s board of directors, issued a statement to Gun Week noting, “This is a true victory for those of us who work to protect the Second Amendment and for the citizens of the District of Columbia who now legally have the right to own a firearm for their personal defense.”
“The Appeals Court decision is a sweeping rejection of arguments by gun control advocates that the Second Amendment does not guarantee an individual right to keep and bear arms,” Barr stated. “The Court today decisively answers that question in the affirmative in holding that the District of Columbia’s law prohibiting possession of firearms is unconstitutional precisely because it denies the individual right to keep and bear arms.”
In a news release following the ruling, Paul Helmke, president of the Brady Center to Prevent Gun Violence, called the ruling “judicial activism at its worst.”
“By disregarding nearly 70 years of US Supreme Court precedent,” Helmke said, “two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted 30 years ago and still strongly supports.”
There is some question of public will, however. Polling by TV and radio stations in the District immediately after the Appeals Court’s ruling seemed to consistently register over 80% public support for that decision.
And Josh Horwitz, executive director of the Coalition to Stop Gun Violence, said his group “strongly opposed” the ruling. Like Helmke, he called Silberman’s decision a case of “judicial activism” and promised that his group will “stand with” the city as it files an appeal.
Waldron issued a blistering reaction to their remarks noting, “In fact, this ruling strikes a mortal blow to decades of judicial activism based on erroneous interpretation and deliberate misrepresentation of a 1939 Supreme Court decision, and returns the Second Amendment to its historically accurate place in the Bill of Rights.”
Helmke was clearly upset that “This ruling represents the first time in American history that a Federal appeals court has struck down a gun law on Second Amendment grounds.”
For years, Waldron noted, anti-gunners have been arguing that no federal court had ever overturned a gun law on Second Amendment grounds.
“Until now,” he said.
‘Individual Right’
There are many passages in the Silberman opinion that virtually destroy nearly seven decades of “collective right” dogma.
“We…take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms,” Silberman wrote, “and that the preservation of the militia was the right’s most salient political benefit—and thus the most appropriate to express in a political document.
“The important point, of course,” he added, “is that the popular nature of the militia is consistent with an individual right to keep and bear arms: Preserving an individual right was the best way to ensure that the militia could serve when called.”
Silberman devastated the District’s arguments against the Second Amendment by observing, “One authority cited by the District has attempted to equate ‘keep’ with ‘keep up,’ a term that had been used in phrases such as ‘keep up a standing army’ or, as in the Articles of Confederation, ‘every state shall keep up a well regulated and disciplined militia . . . .’ The argument that ‘keep’ as used in ‘the right of the people to keep . . . Arms’ shares a military meaning with ‘keep up’ as used in ‘every state shall keep up a well regulated militia’ mocks usage, syntax, and common sense. Such outlandish views are likely advanced because the plain meaning of ‘keep’ strikes a mortal blow to the collective right theory.”
Gottlieb called the ruling a “huge victory for firearm civil rights.”
“It shreds the so-called ‘collective right theory’ of gun control proponents,” Gottlieb said, “and squarely puts the Second Amendment where it has always belonged, as a protection of the individual citizen’s right to have a firearm for personal defense.
“Judge Silberman’s ruling,” Gottlieb said, “reverses 31 years of unconstitutional infringement on the rights of District of Columbia residents, not only to keep and bear arms, but to be safe and secure in their own homes. This is a ruling that should make all citizens proud that we live in a nation where the rights of individual citizens trump political correctness.”
The case was originally filed in February 2003 by the Cato Institute and Gura on behalf of the six plaintiffs. Two months later, the NRA filed a similar lawsuit (Seegars v. Gonzales), but with additional issues. An attempt by NRA to have the two cases combined was not successful, and ultimately, NRA’s case was thrown out for lack of standing in 2005.
But the Parker case remained, with NRA and SAF, among others, including some states’ attorneys general and legal scholars, filing amicus briefs supporting the complaint. Many anti-gun organizations, and some states and academics, filed amicus briefs in support of the District of Columbia.
The District has 30 days to file an appeal, either for an en banc review by the entire District appeals court, or an appeal could be taken immediately to the Supreme Court. That, according to attorney Robert Levy, a senior fellow in constitutional studies at the Cato Institute, is where the case belongs.
“The citizens of this country deserve a foursquare pronouncement from the nation’s highest court about the real meaning of the Second Amendment,” he wrote in a Mach 12 opinion published by The Washington Post. “For those of us eagerly awaiting a clear statement in support of an individual’s right to keep and bear arms, the US Court of Appeals for the DC Circuit has declared that the Constitution is on our side.”
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