All that may be about to change.
The Washington Post reported on May 30 that D.C.‘s federal public defender has filed motions challenging the district’s handgun ban, on behalf of two defendants charged with violating the ban. The motions apparently cite the Justice Department’s recent affirmation that the Second Amendment protects an individual right to bear arms unrelated to militia service. The DOJ expressed the individual rights view in footnotes to two briefs recently filed with the Supreme Court, both of which contain the phrase “the Second Amendment… protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms.”
Are the district’s gun laws consistent with that view? Not even close. The district bans the possession of unregistered handguns, and prohibits, with few exceptions, the registration of any handgun not validly registered in the district prior to 1976. The law survived a Second Amendment challenge in the 1987 D.C. Court of Appeals case Sandidge v. United States. But that case stated baldly that “the right to keep and bear arms is not a right conferred upon the people by the federal constitution” — a statement that’s rather hard to square with the Second Amendment, which speaks of the “right” of the “people” to “keep and bear arms.”
The Sandidge court also held that the Second Amendment guarantees “a collective right [of the states] rather than an individual right” — the view that the Justice Department has supposedly rejected. And since the district isn’t a state, the two gun‐ban violators are being prosecuted by the U.S. attorney, who, coincidentally, works for John Ashcroft. In a November 9, 2001, memo to all the U.S. attorneys, Ashcroft endorsed the individual right to bear arms and reminded the prosecutors “to respect the constitutional rights guaranteed to Americans.” Thus, you’d expect the public defender’s motions to go unopposed.
Oddly though, Ashcroft has allowed the D.C. U.S. attorney’s office to rely on Sandidge to defend the district’s gun ban. It’s hard to know what to make of this. It’s tempting to read it as indicating that Ashcroft isn’t serious about the individual rights view of the Second Amendment. Sure, he’ll reward political allies like the NRA with public statements supporting the view, but when it comes to getting people who work for him to act on it, he demurs.
But whatever Ashcroft’s motivation for defending the gun ban, the consequence is that the issue will be squarely presented to the courts. If the D.C. U.S. attorney’s office simply declined to defend the gun ban against Second Amendment challenges it would remain unreviewable by the courts and protected by mere policy instead of precedent.
Though we can expect the D.C. superior court to follow Sandidge, these cases may well end up in the Supreme Court, where the collective rights view will be tested. In a 1997 case striking down portions of the Brady Act, Justice Clarence Thomas wrote that “perhaps at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’ ” Justice Thomas may get his wish. Stay tuned.