Gun rights advocates won a major victory in March when a federal appeals court struck down the District of Columbia's strict handgun ban by recognizing an individual right to keep and bear arms under the Second Amendment.
Now, gun rights advocates are in the unusual position of urging Mayor Adrian Fenty to appeal the ruling to the Supreme Court. They hope the high court will definitively approve a broad view of the Second Amendment that the justices and most state and federal courts have rejected until now.
Meanwhile, gun control groups worry about the prospects of an appeal to the Supreme Court. And Fenty apparently plans to take his time in deciding whether to ask the justices to review the ruling or ask the D.C. City Council to rewrite the law in the light of the appeals court's decision.
“It's a little early to say which way we're going to go,” Fenty told a May 8 news conference. “We will weigh everything.”
The meaning of the Second Amendment — part of the Bill of Rights adopted in 1791 two years after ratification of the Constitution — has been a major dispute between gun rights and gun control groups at least since the 1960s. The amendment states: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Through history, the amendment has generally been interpreted to protect a “collective right” for states to organize and control militias, but not to bestow an individual right to own or possess firearms. The Supreme Court appeared to uphold that view in a somewhat cryptic 1939 decision, United States v. Miller.
Washington, D.C., Mayor Adrian Fenty (left) and Assistant Chief of Police Winston Robinson voice disappointment with federal appeals court ruling on March 9, 2007, striking down the District of Columbia's strictest-in-the-nation handgun ban. The ruling rejected previous doctrine that the Second Amendment only protects states' rights to organize and control militias. (AP Photo/Jacquelyn Martin)
In its 2-1 ruling rejecting the D.C. handgun ban, the U.S. Circuit Court of Appeals for the District of Columbia reasoned that the amendment could not effectively protect state militias unless it also guaranteed 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,” Judge Laurence H. Silberman wrote.
The appeals court's March 9 ruling in Parker v. District of Columbia marked the first time a federal court had used the Second Amendment to strike down a gun regulation. In the only previous appellate decision endorsing the individual view of the amendment, the Fifth U.S. Circuit Court of Appeals in New Orleans agreed in 2001 that the Second Amendment protects the individual right to bear arms, but it nevertheless upheld a federal prosecution of a Texas physician for carrying a pistol — even though he was under a court protective order. Ten other federal appeals courts and 10 state courts have ruled the amendment does not create an individual right to bear arms.
In his opinion, Silberman said the Second Amendment permits “reasonable regulations” of firearms. But the District's nearly total ban on registration of handguns went too far, he said, because pistols are “the most preferred firearm” for self-defense in the home. The ruling also struck down a requirement that any handguns in a home be kept disassembled and trigger-locked and an interpretation of the District's ban on carrying a weapon that prevents moving a gun within a home.
The District's lawyers asked the full appeals court to rehear the case, but the judges rejected the request by a 6-4 vote. With Fenty equivocating about the District's next step, lawyers for the plaintiffs are urging him to appeal to the Supreme Court.
“We would like the entire nation to benefit from our efforts,” says Alan Gura, an Alexandria, Va., lawyer representing the six D.C. residents challenging the handgun ban. “We believe that this is a wonderful case with which to redeem Second Amendment rights for all Americans.”
Gun control advocates, however, openly worry that the broad D.C. ban will be hard to defend. “Why is this the one we're going to be taking up to the Supremes?” asks Paul Helmke, president of the Brady Campaign to Prevent Gun Violence.
The District has until Aug. 7 to ask the Supreme Court to hear the case. Two justices — Antonin Scalia and Clarence Thomas — are on record as endorsing the individual rights view of the Second Amendment. In addition, Justice Samuel A. Alito Jr. voted in dissent in a 1996 case to strike down the federal ban on machine guns while he was a judge on the Third U.S. Circuit Court of Appeals. In addition, the Bush administration is on record since 2002 as endorsing the individual-rights view.
“There's certainly a risk at the Supreme Court” for gun control advocates, says Carl Bogus, a professor at Roger Williams University School of Law in Cranston, R.I.