Commentary

Taking the D.C. Gun Ban To Court

This article appeared in the Washington Times on February 28, 2003.

Six District of Columbia residents want to be able to defend themselves in their own homes. To vindicate their rights, on Feb. 10 three local attorneys and I filed a civil lawsuit in a D.C. federal court.

The litigation, Parker vs. District of Columbia, will not be about machine guns and assault weapons. It will be about the right to own ordinary, garden-variety handguns. Nor will the plaintiffs argue for the right to carry a gun outside the home. That’s another question for another day.

The D.C. government has done little or nothing to disarm violent criminals; yet it has done a really effective job of disarming decent, peaceable residents. Still, lots of cities and states have restrictive gun laws along with high rates of violent crime. What, then, is unique about the District of Columbia? Why do D.C.’s laws have gun defenders up in arms?

For starters, no handgun can be registered in D.C. Even those pistols registered prior to the District’s 1976 ban cannot be carried from room to room in the home without a license. Moreover, all firearms in the home, including rifles and shotguns, must be unloaded and either disassembled or bound by a trigger lock. In effect, no one in the District can possess a functional firearm in his or her own residence. The law applies not just to “unfit” persons like felons, minors or the mentally incompetent, but across-the-board to ordinary, honest, responsible citizens.

Roughly three dozen challenges to the D.C. law have already been filed — but mostly by criminals who are serving longer sentences because their crimes included gun possession. This case is different. The lead plaintiff, Shelly Parker, resides in a high-crime neighborhood and is active in community affairs. As a result of trying to make her neighborhood a better place to live, Ms. Parker has been threatened by drug dealers. She would like to possess a functional handgun within her home for self-defense, but fears arrest, prosecution, incarceration and fine because of D.C.’s gun ban.

A second plaintiff is a special police officer who carries a handgun to provide security for the Thurgood Marshall Judicial Center. But when he applied for permission to possess a handgun within his home, the D.C. government turned him down. Other plaintiffs include a gay man who was assaulted in another city on account of his sexual orientation, but was able to ward off the attacker with a handgun.

Yes, “reasonable” regulations may be crafted to prohibit bad persons from possessing massively destructive firearms. But the District’s blanket prohibitions are patently unreasonable. The Washington Post, an unfaltering advocate for gun control, put it this way in an Aug. 5, 2002 editorial: “Some gun laws — Washington’s notably among them — sweep more broadly than any individual right can reasonably be read to permit.”

Importantly, felonies under D.C. law are prosecuted by the U.S. Attorney for the District of Columbia, an employee of the Justice Department — the same Justice Department that is now on record favoring an “individual rights theory” of the Second Amendment, as contrasted with a “collective rights theory.” According to Attorney General John Ashcroft — first in a letter to the National Rifle Association, then in formal legal filings with the U.S. Supreme Court — the right to keep and bear arms belongs to each of us individually, even if we are not serving in the militia or National Guard. To be sure, Mr. Ashcroft also declared that the Justice Department “will continue to defend the constitutionality of all existing federal firearms laws.” But D.C. law, although enacted pursuant to congressional delegation, is not federal law.

Naturally, D.C. law must comply with the U.S. Constitution, and the federal courts are the ultimate authority on the meaning of that document. Sixteen years ago, a local court in D.C. held that “the Second Amendment guarantees a collective rather than an individual right.” That precedent, however, is not binding in D.C.’s federal court, which has not yet resolved its theory of the Second Amendment.

Soon, the court will have an opportunity to do so. The six plaintiffs in Parker vs. District of Columbia are asking a federal judge to prevent D.C. from barring the registration of handguns, banning the possession of functional firearms within the home, and forbidding firearms from being carried from room to room without a license. The plaintiffs live here, pay their taxes here and obey the laws.

But the District of Columbia says that if someone breaks into their houses, their only choice is to call 911 and pray the police arrive in time. That’s not good enough. The right to keep and bear arms includes the right to defend your property, your family, and your life. No government should be permitted to take that right away.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.