Mar. 9 Parker Decision Could Start Showdown at Constitutional Corral
April 1, 2007

by Joseph P. Tartaro
Executive Editor

For the past 80 or 90 years, a debate has raged in the United States about the right to keep and bear arms for defense of life, property, community and the nation.

Right before World War I, there was a push to license and register handguns inspired, in part by establishment concern about the worldwide labor movement and the wave of Eastern and Southern European immigration, and in part by the truly rough and tumble days of big city politics.

A majority of Americans then believed that the Second Amendment to the US Constitution guaranteed them an individual right to keep and bear arms, a view that was so universal that it was even taught in schools at that time.

But politicians being politicians, they invented ways around that belief and justifications for their proposals, which targeted at first only “concealable handguns.” New York lawmakers, with major newspaper support, passed the Sullivan Law in 1911 justifying it by the claiming that they were fighting crime committed by immigrants, while they were also quietly disarming their political opponents.

After World War I, Prohibition and violent crime associated with it, inspired more handgun control laws and restrictions of machineguns and sawed off shotguns. Rampant crime was again the justification, but once again, the National Firearms Act (NFA) subtly did not entirely ban some guns, it merely required their registration and “background check” approval by local authorities.

1939 Miller Case
The Second Amendment defense was raised in a key challenge to the NFA, Miller vs. US, that was decided by the Supreme Court in 1939. That case involved possession of a sawed off shotgun by a man who had been convicted of other crimes. By the time the appeal got to the highest court, no one argued for the defense or for the individual right interpretation. The court decided that in the absence of anyone showing that a sawed-off shotgun had any connection to militia service, the NFA did not violate the Constitution. That court did not address the individual rights issue at all.

But in the years that followed, the anti-gun establishment, including lawyers, scholars and policy makers pushed a tortured interpretation of the Miller decision. They began selling their “collective right” view that the Second Amendment only guarantees states the right to form and arm militias.

Textbooks were rewritten on that tortured interpretation and hundreds, if not thousands, of other gun laws were passed by Congress, state legislatures and municipalities in the years that followed, including the Washington, DC, laws of 1976.

Meanwhile, other political shifts and events cast their own shadows over the right to keep and bear arms. Many lesser court decisions upheld various challenges to local and state laws. However, on Mar. 9 a three-judge panel of the US Appellate Court for the District of Columbia sent shockwaves through the establishment and their partners in the general media by overturning major provisions of the DC gun law in a 2-1 decision in Parker vs. District of Columbia. The court’s decision also said the Second Amendment guaranteed an individual right to keep and bear arms. (See related news story on Pages 1 and 2 of this issue.)

The majority opinion was written by Senior Judge Laurence H. Silberman. In his 58-page opinion, Silberman thoroughly reviewed the whole debate over what the Second Amendment guaranteed, citing many earlier court decisions, including Miller (1939) and citing much of the recent scholarship by leading law professors like Laurence Tribe and Sanford Levinson.

Establishment Shocked
For the first time, a federal court had overturned a local gun control law, but like the 2001 5th Circuit Emerson decision it did not prevent reasonable restrictions on keeping or bearing guns.

So shocked was the establishment media that few even reported news of this historic decision, and many had not done so for almost two weeks after the decision was issued. Others however, were quick to print commentaries, usually following an anti-gun line.

Of the broadcast network evening news shows, on Mar. 9, NBC Nightly News was the only one to cover the “history-making” federal court ruling striking down Washington, DC’s, restrictive gun control laws. While anchor Brian Williams made the story his show’s lead item, correspondent Pete Williams called it “the most important gun control ruling in 70 years.” Meanwhile, CBS Evening News and ABC’s World News ignored the story entirely.

Veteran court reporter Tony Mauro, writing in Legal Times on Mar. 12, quoted a Cato Institute source with saying: “The issue has been teed up by Judge Silberman in such a way that no honest court can avoid dealing with it head-on.” Roger Pilon of the Cato Institute, which supported the challenge to the DC ordinances, but did not fund it, continued “He has cut through all the fog surrounding the Second Amendment.”

As this issue goes to press, it appears likely that DC government officials are likely to at least seek an en banc review of the ruling by the whole DC appellate court.

If en banc review fails, the District would then face the decision of whether to appeal to the Supreme Court, which, with its new composition, Mauro noted, might be more eager to take up the issue than previous courts. If the city appeals and the court agrees to take the case, it could land on the high court’s agenda in mid-2008, a presidential election year, Mauro said.

Even if the high court rules in favor of an individual right, it would not spell the end of all gun regulation. As even Silberman points out, the high court has allowed reasonable restrictions of other individual rights such as freedom of speech. But such a decision could trigger litigation over a range of laws, including those that make criminal penalties more serious if they involve possession of firearms. The court challenges to gun laws could go on for years.

The Parker case now returns to the district court level, where, according to Silberman’s ruling, the judge must issue an injunction against the enforcement of the provisions that have been struck down.

Commentaries
In the meanwhile, authors of books on both sides of the gun debate as well as newspaper columnists started generating commentaries of their own. Needless to say, the anti-gun side was quick to condemn the decision.

The New York Times said “The court relied on a constitutional interpretation that has been rejected by nine federal appeals courts around the nation. The decision was the first from a federal appeals court to hold a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias.

Linda Singer, the District of Columbia’s acting attorney general, said the decision was “a huge setback.”

The anti-gun organizations were quick to label the decision “judicial activism at its absolute worst,” something they had previously supported, and predicted that if the DC law was negated, the guns laws of every city and state would follow and “blood would run in the streets.”

What about appeals?
If the city does ask for an en banc review of the decision, there is no guarantee that the court will agree to that request. If the city appeals the decision to the Supreme Court, the high court can decide not to review the decision as well, an outcome which will mean that the DC law is overturned and another federal appeals court circuit will be on record as ruling that the Second Amendment guarantees an individual right to keep and bear arms.

On the other hand, this court’s decision in Parker vs. District of Columbia could be overturned.

Either way, it looks like a showdown is coming at the Constitutional Corral.
Return to Archive Index