Challenging the D.C. Gun Ban

February 19, 2003 • Commentary
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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 Washington, D.C. federal court.

The litigation, Parker v. 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? First, a little background.

In a recent Texas case, United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit held that the Constitution “protects the right of individuals, including those not then actually a member of any militia … to privately possess and bear their own firearms … that are suitable as personal individual weapons.”

That right is not absolute, said the court. It does, however, establish a powerful presumption against gun control. And to rebut that presumption, government regulators must first identify exceptional factors that justify a limitation on our Second Amendment right. Then government must show that its regulation goes no further than necessary to achieve its aims.

For example, no reasonable person would argue that killers have a constitutional right to possess weapons of mass destruction. Some persons and some weapons may be restricted. Last year, the Ninth Circuit, in Silveira v. Lockyer, rejected a challenge to California’s ban on so‐​called assault weapons. In the Emerson case itself, the Fifth Circuit held that Emerson’s Second Amendment rights could be temporarily curtailed because there was reason to believe he posed a threat to his estranged wife. Emerson asked the U.S. Supreme Court to reverse that holding, but the Court decided not to review the case.

The High Court hasn’t decided a Second Amendment case since United States v. Miller in 1939. On that occasion, the challenged statute required registration of machine guns, sawed‐​off rifles, sawed‐​off shotguns, and silencers.

First, said the Court, “militia” means “the body of the people capable of bearing arms.” That suggested a right belonging to all of us, as individuals. But the Court also held that the right extended only to weapons rationally related to the militia — not the sawed‐​off shotgun questioned in Miller. That mixed ruling has puzzled legal scholars for more than six decades. If military use is the decisive test, then citizens can possess rocket launchers and missiles. Obviously, that’s not what the Court had in mind. Indeed, anti‐​gun advocates, who regularly cite Miller with approval, would be apoplectic if the Court’s military‐​use doctrine were logically extended.

Because Miller is so murky, it can only be interpreted narrowly, allowing restrictions on weapons, like machine guns and silencers, with slight value to law abiding citizens, and high value to criminals. In other words, Miller applies to the type of weapon, not to the question whether the Second Amendment protects individuals or members of the militia. That’s the conclusion the Fifth Circuit reached in Emerson. It found that Miller upheld neither the individual rights model of the Second Amendment nor the collective rights model. Instead, Miller simply decided that the weapons at issue were not protected, whether used individually or collectively.

Enter U.S. Attorney General John Ashcroft. First, in a letter to the National Rifle Association, he “reaffirmed a long‐​held opinion” that all law‐​abiding citizens have an individual right to keep and bear firearms, clearly protected by “the text and the original intent of the Second Amendment.”

Ashcroft noted that early Supreme Court decisions “routinely” recognized an individual right, as had U.S. attorneys general of both parties prior to Miller. Ashcroft’s letter was followed by the Justice Department’s brief to the Supreme Court in the Emerson case. For the first time, the federal government argued in formal court papers that the Second Amendment “broadly protects the rights of individuals, including persons who are not members of any militia … subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.”

Despite that pronouncement, the Ashcroft Justice Department declared that Emerson was correctly decided. A restriction on persons subject to a domestic violence restraining order was a reasonable exception to Second Amendment protection. That’s roughly the position of an impressive array of legal scholars, including Harvard’s liberal icon, Laurence Tribe, and Yale’s highly respected Akhil Amar, who agree on two fundamental issues: First, the Second Amendment confers an individual rather than a collective right. Second, that right is not absolute; it is subject to reasonable regulation. To the extent there’s disagreement, it hinges on what constitutes reasonable regulation; that is, where to draw the line. That’s why D.C.‘s handgun ban is so interesting — and so vulnerable.

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 unconstitutional 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.

Quintessentially, a handgun is a personal weapon, used by citizens to defend themselves against criminal predators. It is not a weapon like the sawed‐​off shotgun barred in Miller. If “reasonable” regulations are those that prohibit bad persons from possessing massively destructive firearms, then the District’s blanket prohibitions are patently unreasonable. “Some gun laws — Washington’s notably among them — sweep more broadly than any individual right can reasonably be read to permit,” said the Washington Post in an Aug. 5, 2002 editorial.

Just as important, Congress has plenary legislative authority over the nation’s capital. That means the D.C. government, a creature of Congress, is constrained no less than the federal government itself by the Second Amendment. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But unlike most of the other 10 amendments, the applicability of the Second Amendment to the states has not been resolved. Yet because Washington, D.C. is not a state and is controlled by Congress, that complex, widely debated question need not be addressed when D.C. law is challenged on Second Amendment grounds.

Finally, 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. To be sure, Ashcroft declared in an internal memorandum 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 v. 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 that 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.

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