Category Archives: District of Columbia v. Heller

Obama Tries to Have it Both Ways on the Second Amendment

MILWAUKEE (AP) — Barack Obama said Friday that the country must do “whatever it takes” to eradicate gun violence following a campus shooting in his home state, but he believes in an individual’s right to bear arms.

Obama said he spoke to Northern Illinois University’s president Friday morning by phone and offered whatever help his Senate office could provide in the investigation and improving campus security. The Democratic presidential candidate spoke about the Illinois shooting to reporters while campaigning in neighboring Wisconsin.

The senator, a former constitutional law instructor, said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights.

When I ran across the headline’s article “Obama supports individual gun rights” in The Rocky Mountain News, I knew I had to read further. So far, so good…so what:

“I think there is an individual right to bear arms, but it’s subject to commonsense regulation” like background checks, [Obama] said during a news conference.”

He said he would support federal legislation based on a California law that would facilitate immediate tracing of bullets used in a crime. He said even though the California law was passed over the strong objection of the National Rifle Association, he thinks it’s the type of law that gun owners and crime victims can get behind.

To be honest, I don’t know anything about this particular policy [if anyone can give me a Cliff’s Notes version, please fill me in]. Being able to trace bullets used in a crime back to a particular firearm…I thought this was already an accepted, common practice? I must be missing something; clearly if the NRA is opposed to this policy maybe we should look at it.

So Obama believes that the right to bear arms is an individual right (more than we can say about most Democrats) but also believes in “common sense regulation.” Surely, Obama would not consider the D.C. gun ban to be common sense…or would he?

Although Obama supports gun control, while campaigning in gun-friendly Idaho earlier this month, he said he does not intend to take away people’s guns.

At his news conference, he voiced support for the District of Columbia’s ban on handguns, which is scheduled to be heard by the Supreme Court next month.

“The notion that somehow local jurisdictions can’t initiate gun safety laws to deal with gang bangers and random shootings on the street isn’t born [sic] out by our Constitution,” Obama said.

Now I’m really confused! The only thing I can figure is that Obama’s views on gun rights are based on what he thinks his supporters want to hear at any given moment (in other words, he’s being a politician). Obama’s comments also reveal a fundamental misunderstanding about the Constitution on his part. The right to bear arms, or any of the other rights found in the Constitution for that matter, are not “born out” of the Constitution; the Constitution merely recognizes individual rights which already exist.

Given these seemingly contradictory statements, one wonders what policies an Obama administration would support and what sort of judicial appointments Obama would make with regard to the 2nd Amendment.


Brad pointed out that the journalist likely misinterpreted Obama’s statement:

The notion that somehow local jurisdictions can’t initiate gun safety laws to deal with gang bangers and random shootings on the street isn’t born [sic] out by our Constitution.

What Obama likely meant was “borne out by our Constitution” meaning “supported by our Constitution” rather than “born of our Constitution.” While Brad and I both disagree with Obama on this point even as he likely intended it, I think it’s important that we try to represent the senator’s remarks accurately.

Elsewhere in the article there was this:

The senator, a former constitutional law instructor, said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights.

Here again, it’s the journalist’s interpretation (Nedra Pickler in this case) of what she thought Obama said. Hopefully, Obama knows better since he is a former constitutional law instructor (though I’m sure that there are many constitutional law instructors who actually do believe the Constitution grants rights rather than recognizes their existence). The only way to determine if the journalist correctly interpreted Obama’s speech would be to find a transcript of the speech. So far, I have been unable to find one but when I do I will link the transcript to this post so readers can decide for themselves whether Pickler’s interpretation of Obama’s speech is correct or not.

More Amicus Briefs In D.C. v. Heller

There have been several more amicus briefs filed with the Supreme Court in support of the effort to overturn the District of Columbia’s gun ban, but the one that raises the most eyebrows is signed by the Vice-President himself:

Vice President Cheney signed on to a brief filed by a majority of Congress yesterday that urged the Supreme Court to uphold a ruling that the District of Columbia’s handgun ban is unconstitutional, breaking with his own administration’s official position.

Cheney joined 55 senators and 250 House members in asking the court to find that the Second Amendment protects an individual’s right to possess firearms and to uphold a lower court’s ruling that the D.C. ban violates that right. That position is at odds with the one put forward by the administration, which angered gun rights advocates when it suggested that the justices return the case to lower courts for further review.

In order to make his dramatic break with the administration, Cheney invoked his rarely used status as part of Congress, joining the brief as “President of the United States Senate, Richard B. Cheney.” It is a position he has used at times to make the point that he is sometimes part of the legislative branch and sometimes part of the executive.

A copy of the brief can be found here.

In addition to what will no doubt come to be called the Cheney brief, the Congress of Racial Equality has filed a pro-Respondent brief that asks the court to look at the racist history of gun control laws, a pertinent argument given the racial makeup of the District of Columbia. That brief can be found here.

Respondents File Brief In D.C. v. Heller

Earlier this week, the Respondents filed their opposition brief to the District of Columbia’s appeal in District of Columbia v. Heller:

If the Constitution protects an individual’s right to possess a handgun, then the District’s ban on such arms must be declared unconstitutional, lawyers for the man challenging the “nation’s most draconian gun laws” told the Supreme Court yesterday.

Lawyers for Dick Anthony Heller, a security guard, filed a brief saying that the District’s categorical restrictions are so broad that they cannot comply with the Second Amendment’s protection of the right to bear arms.

“However else [the District] might regulate the possession and use of arms, their complete ban on the home possession of all functional firearms, and their prohibition against home possession and movement of handguns, are unconstitutional,” wrote Alan Gura, one of three lawyers representing those who challenged the District’s 1976 ban.

District of Columbia v. Heller, to be argued before the justices March 18, promises a historic examination of the Second Amendment, which holds that “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.”

As Jason noted earlier today, there was also an amicus brief filed by members of Congress in addition to several other amicus briefs in support of Heller’s position:

Additionally amicus briefs are expected to be filed before Monday’s deadline.

Members of Congress file brief in Heller case

Here is some good news concerning District of Columbia v. Heller. US Senators Kay Bailey Hutchison (R-TX) and Jon Tester (D-MT) are filing a brief with signatures of 250 House members and 55 Senators, urging that the DC gun law be overturned by the Supreme Court:

“All of the congressional legislative history is assuming that the Second Amendment, which is in the Bill of Rights, is an individual right and for a city or state to thwart this by taking a person’s right in their home to have a loaded gun, just seemed to be a perfect opportunity for the Supreme Court to affirm this individual right that Congress has acknowledged throughout its history,” Hutchison said.

Tester said the writers of the Constitution did not intend for laws to be applied to some people and not others or to be applied some times and not others.

“We cannot restrict the right to bear arms just like we can’t restrict the right to practice religion or the right of a free and independent press,” Tester said.

The Bush Administration has filed a brief on behalf of the District of Columbia. However, the administration says that it supports the individual rights view of the Second Amendment.

Heller could settle the question as to whether the Second Amendment is an individual right (which is my belief) or a collective right. To learn more about the case, visit DC Gun Case or read this article by Robert Levy. You can also listen this event podcast from the Cato Institute that explains some of the details of the case and why the challenge to the ban was presented.

Oral arguments for Heller begin on March 18th.

H/T: Of Arms and the Law

[UPDATE] Here is the brief signed by Vice-President Dick Cheney, 55 members of the Senate and 250 members of the House.

DoJ and DC Gun Ban

The Department of Justice has filed an amicus brief on behalf the District of Columbia. Yes, you read that right. The Bush Administration is supporting DC in the upcoming case on that will have a major impact on gun owner’s rights.

Here is the analysis from David Hardy:

As I read this, the (Bush) Dept of Justice is asking that the Court hold it to be an individual right, but not strike the DC gun law, instead sending it back down to the trial court to take evidence on everything from how much the District needs the law to whether people can defend themselves without pistols and just what the DC trigger lock law means. THEN maybe it can begin another four year trek to the Supremes. That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns violates the Second Amendment, and contends that it might just be justified, it all depends on the evidence.

There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup.

The DoJ brief is here. You can view other case filings here. You can read more about the Heller case here.

This is bad news. The lower court decision to overturn the ban was very well written and address the heart of the issue head on:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

I don’t see what part of the right of people to keep and bear arms shall not be infringed is so damned hard to understand.

What’s At Stake In Parker v. D.C.

Mike Cox writes in the Wall Street Journal about what’s at stake in the D.C. gun control case now before the U.S. Supreme Court. At issue in the case is whether the Second Amendment protects an individual right to keep and bear arms, or whether the right is a “collective” one referring to the states’ right to form militias. With the exception of one Federal Circuit Court of Appeal, the consensus since the 1930s has been that the right is a collective one, thus justifying on a constitutional basis nearly any gun control measure you can think of.

As Cox notes, the language and history of the Bill of Rights clearly indicates otherwise:

The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.

The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Here, “the people” are separate from “the states”; thus, the Second Amendment must be about more than simply a “state” militia when it uses the term “the people.”

Consider the grammar. The Second Amendment is about the right to “keep and bear arms.” Before the conjunction “and” there is a right to “keep,” meaning to possess. This word would be superfluous if the Second Amendment were only about bearing arms as part of the state militia. Reading these words to restrict the right to possess arms strains common rules of composition.

Colonial history and politics are also instructive. James Madison wrote the Bill of Rights to provide a political compromise between the Federalists, who favored a strong central government, and the Anti-Federalists, who feared a strong central government as an inherent danger to individual rights. In June 1789, then-Rep. Madison introduced 12 amendments, a “bill of rights,” to the Constitution to convince the remaining two of the original 13 colonies to ratify the document.

Madison’s draft borrowed liberally from the English Bill of Rights of 1689 and Virginia’s Declaration of Rights. Both granted individual rights, not collective rights. As a result, Madison proposed a bill of rights that reflected, as Stanford University historian Jack Rakove notes, his belief that the “greatest dangers to liberty would continue to arise within the states, rather than from a reconstituted national government.” Accordingly, Mr. Rakove writes that “Madison justified all of these proposals (Bill of Rights) in terms of the protection they would extend to individual and minority rights.”

One of the earliest scholars of the Constitution and the Bill of Rights, Justice Joseph Story, confirmed this focus on individuals in his famous “Commentaries on the Constitution of the United States” in 1833. “The right of the citizens to keep and bear arms,” Story wrote, “has justly been considered, as the palladium of the liberties of republics, since it offers a strong moral check against the usurpation and arbitrary power of rulers . . .”

Based on the evidence, arguing that the Second Amendment right is somehow collective, when every other right protected by the Bill of Rights is clearly individual, is not only nonsensical, it is a perversion of history.

Update: As I’ve been reminded, the correct style of the case now before the Supreme Court is District of Columbia v. Heller.

Update #2: I should also note that the article of the Wall Street Journal article excerpted above is the Attorney General for the State of Michigan.

Supreme Court Agrees To Hear D.C. Gun Ban Case

As expected, the Supreme Court announced today that it would hear the appeal of the District of Columbia in the twin cases that resulted in the District’s ban on handguns being declared unconstitutional earlier this year:

The Supreme Court announced today that it will decide whether the District of Columbia’s ban on handguns violates the Constitution, a choice that will put the justices at the center of the controversy over the meaning of the Second Amendment for the first time in nearly 70 years.

The court’s decision could have broad implications for gun-control measures locally and across the country, and will raise a hotly contested political issue just in time for the 2008 elections.

The court will hear the case after the first of the year. A decision likely would come before it adjourns at the end of June.

Now the battle begins.

Supreme Court Punts On D.C. Gun Ban Case, For Now

It was widely expected that the Supreme Court would announce today whether it would accept the appeal filed by the District of Columbia in the lawsuit challenging it’s handgun ban. As Lyle Denniston reports at ScotusBlog, that wasn’t the case:

The Supreme Court on Tuesday announced no action on a new case testing the meaning of the Second Amendment — an issue the Court has not considered in 68 years. The Orders List contained no mention of either the District of Columbia’s appeal (07-290) or a cross-petition by challengers to the city’s flat ban on private possession of handguns (07-335). The next date for possible action on these cases is likely to come after the Court’s pre-Thanksgiving Conference — either on the day of the Conference, Nov. 20, or the following Monday, Nov. 26.

Figuring out what might be going on with this case at the Supreme Court is a bit like reading tea leaves, but Denniston offers several possible explanations:

[A]mong the possible reasons for delaying the case are these: one or more Justices simply asked for more time to consider the two cases; the Court may be rewriting the question or questions it will be willing to review — especially in view of the disagreement between the two sides on what should be at issue; the Court may have voted initially to deny review of one or both cases and one or more Justices are writing a dissent from the denial. The appeal in 07-290 (District of Columbia v. Heller) raises the key issue about the Second Amendment’s meaning — that is, whether it guarantees an individual right to have a handgun for private use, at least in one’s home — and the appeal in 07-335 (Parker v. District of Columbia) poses a question about who may bring lawsuits to challenge laws before they are actively enforced. Together, the cases thus present a somewhat complex mix for the Court, and it perhaps was not much of a surprise that no order issued on Tuesday. At no point is there likely to be an answer as to what happened to bring about the delay. Both cases are expected to be re-listed for the Nov. 20 Conference.

There is, of course, the possibility that the Court could decide not to accept either appeal. However, given the fact that both cases present issues that haven’t been ruled on at the Supreme Court level in quite some time and the fact that there is presently a split among the Circuit Courts of Appeal on the meaning and proper interpretation of the Second Amendment, that outcome seems highly unlikely

So, stay tuned.

The NRA vs. The Second Amendment ?

This month’s American Bar Association Journal has a fairly good article about the District of Columbia gun ban case currently under consideration by the Supreme Court, and the surprising role that the National Rifle Association took in trying to derail the lawsuit in its infancy:

Though the NRA champions individual ownership under the Second Amendment, its critics say the association shares one concern with gun-control advocates: Both fear that a definitive Supreme Court statement against them on the Second Amend­ment would cripple, if not kill, their causes.

“The NRA wants to be the one to define the meaning of the Second Amendment,” says Josh Sugarman, executive director for the anti-gun Violence Policy Center in Washing­ton. Sugarman’s 1992 book, National Rifle Association: Money, Firepower & Fear, is widely regarded as one of the most authoritative histories of the organization.

“They don’t want the Supreme Court to do it, because the [NRA view] is good for [the fundraising] business.”

Discouraging freelance plaintiffs is important to the NRA, whose lawyers worry they tend to file complaints that throw multiple theories against the wall to see what sticks. Such cases can hurt the larger cause, the lawyers say, because they increase the risk of setting unfavorable precedents that may be difficult to undo over time. In California, they call such plaintiffs “orange robers,” says NRA lawyer Michel—a reference to the brightly clad Buddhist monks who torched themselves on Saigon streets during the 1960s in futile demonstrations against the Vietnam War.

And so, when the D.C. case was just beginning, the NRA did everything they could to discourage the Plaintiffs from going forward and, even to this day, it lobbies Congress to repeal the D.C. Gun Ban itself — which would make the case, and any Supreme Court consideration of the Second Amendment implications of the law, entirely moot.

Now that the case is on the verge of being accepted for appeal, though, the NRA is jumping on the bandwagon:

The U.S. Supreme Court had not even decided whether ­to take the case when National Rifle Association lobbyist Wayne LaPierre fired off the distress flare:

“The biggest Second Amendment court battle in history is about to begin—one that will have a huge impact on you, your children and every other American gun owner for generations to come,” LaPierre wrote in an August fundraising letter to the NRA’s 4.3 million members. “And I’m not exaggerating a bit.”

He’s probably right there.

The NRA wants money—lots of it—to make sure the District of Colum­bia’s handgun ban stays buried good and deep. That’s where an appeals court left it after an unprecedented decision early this year that killed it as a violation of the Second Amend­ment’s right to keep and bear arms.


If the tone of LaPierre’s letter didn’t sound urgent enough, he used plenty of underlined boldface type and capital letters to drive home his point. He told the faithful a top-notch brief may cost as much as $1.2 million.

“For gun owners and NRA members, this is the biggest legal battle that we have ever fought, or will ever fight—and its outcome will probably impact every law-abiding American gun owner,” LaPierre wrote in the five-page letter. “It is a battle we simply cannot afford to lose.”

Here’s where LaPierre heads into a wrong turn: It’s not an NRA case. In fact, the gun rights supporters who filed it complain that lawyers working for the NRA, concerned the case could backfire, spent considerable time and money trying to scuttle it. The association finally was dragged kicking and screaming before the Supreme Court after the prospect of review appeared more likely than it has in years.

“They recognized this was a good case and D.C. was the perfect place,” says plaintiffs lawyer Robert A. Levy, a senior fellow at Washington’s libertarian Cato Institute. “That’s what concerned them.”

The Supreme Court will decide on Friday whether to accept the appeal, and we’ll probably know the answer to that question a week or so later, and then the stage for the biggest Second Amendment case in more than 50 years will be set. But don’t thank the NRA for getting it there.

H/T: Tom Palmer

Supreme Court To Consider D.C. Gun Ban Appeal Request Nov. 9th

SCOTUSBlog reports that the Supreme Court will consider the Writ Of Certiorari in the two cases appealing last year’s decision overturning Washington, D.C.’s handgun ban on November 9th:

The Supreme Court will consider two petitions growing out of the Second Amendment dispute over a District of Columbia ban on private possession of handguns at its Conference on Nov. 9, according to the Court’s electronic docket on Wednesday.

The two cases are the city’s appeal — District of Columbia v. Heller (07-290) — challenging a D.C. Circuit Court ruling last March striking down the handgun ban under the Second Amendment, and a cross-petition by five city residents — Parker v. District of Columbia (07-335) — seeking to join in the case to add their own legal complaints about the city gun control law.

Because the two sides have framed the Second Amendment question in different ways in their papers in 07-290, it is conceivable that, should the Court grant review, it might choose to rephrase the issue itself.

If the requests for appeal are granted in either case, the earliest argument would be heard is February or March, with a decision coming sometime before the Court’s term ends in June 2008.

Washington, D.C. Files It’s Appeal In Parker v. D.C.

The District Of Columbia today formally set forth the legal basis for it’s petition for an appeal of the decision earlier this year that struck down a decades-old gun ban as unconstitutional:

The District today asked the Supreme Court to uphold the city’s ban on private ownership of handguns, saying the appeals court decision that overturned the law “drastically departs from the mainstream of American jurisprudence.”

Most legal experts believe the court will accept the case, which could lead to a historic decision next year on whether the ambiguously worded Second Amendment to the Constitution protects private gun ownership or only imparts a civic right related to maintaining state militias.

The District argues in its petition for review that its law–one of the toughest handgun bans in the nation–should be upheld regardless of whether the court sides with the so-called “individualist” or “collective” legal theories.

“It is eminently reasonable to permit private ownership of other types of weapons, including shotguns and rifles, but ban the easily concealed and uniquely dangerous modern handgun,” states the petition, filed by District Attorney General Linda Singer. It adds: “Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die.”

“We’re going to fight to uphold a law that . . . has public support,” Mayor Adrian M. Fenty (D) said at a news conference outside D.C. police headquarters. “The only possible outcome of more handguns in the home is more violence. Our appeal will help the District of Columbia be able to continue to reduce gun violence.”

Because, you know, there’s been so much less gun violence in the District of Columbia in the thirty years that the handgun ban has been in effect.

Oh, never mind.

Parker v. District Of Columbia Headed To The Supreme Court

Washington, D.C. Mayor Adrian Fenty announced today that the city will appeal the Appeals Court decision in Parker v. District of Columbia, which struck down the city’s gun control law:

D.C. Mayor Adrian M. Fenty announced today that the city will appeal to the Supreme Court to uphold a long-time ban on handguns that was overturned by a lower court in March.

“We have made the determination that this law can and should be defended,” Fenty said in a statement.

In a 2-1 decision, a panel of judges for the U.S. Court of Appeals for the D.C. Circuit found in March that the city’s prohibition against residents keeping handguns in their homes is unconstitutional. The panel’s decision was upheld by the full court in May.

The Supreme Court could, of course, decline to hear the appeal but that seems unlikely given the breadth of the Parker decision and the fact that a split exists in the Circuit on whether the Second Amendment grants an individual or collective right to keep and bear arms.

D.C. Appeals Court Refuses To Rehear Gun Ban Case

The District of Columbia Court of Appeals has refused to revisit the decision of a three-judge panel in Parker v. District of Columbia, the case that struck down the District of Columbia’s gun ban:

A federal appeals court in Washington yesterday let stand a ruling that struck down a restrictive D.C. ban on gun ownership, setting the stage for a potentially major constitutional battle over the Second Amendment in the Supreme Court.

D.C. Mayor Adrian M. Fenty said at a news conference that he was “deeply disappointed” by the court’s decision not to reconsider the city’s arguments that the three-decades-old gun ban was constitutional. Fenty (D) said the city will now mull over whether to take the risk of pressing to defend the D.C. gun law before the Supreme Court or to rewrite gun regulations for keeping guns in private District homes.


Fenty and other officials had asked the full appeals court to review a ruling issued by a three-judge panel that struck down a part of the D.C. law that bars people from keeping handguns in homes. With its 6 to 4 vote to reject a hearing by the full court, the U.S. Court of Appeals for the D.C. Circuit sped up the timetable for a showdown. Experts said that timetable favors gun rights advocates and the D.C. residents who first challenged the law.

As I’ve said before, taking this to the Supreme Court does have risks for both sides, but the consequences of a victory for gun rights at that level would be felt around the nation.

How Liberal Law Professors Saved The Second Amendment

The New York Times has an interesting article about how a shift in views on the Second Amendment by leading law professors normally associated with the left led to the case that could transform the debate over gun control:

In March, for the first time in the nation’s history, a federal appeals court struck down a gun control law on Second Amendment grounds. Only a few decades ago, the decision would have been unimaginable.

There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists – thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.

In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.

The article goes on the profile two legal scholars, Laurence Tribe from Harvard and Sanford Levinson from the University of Texas, who have abandoned their previous view that the Second Amendment protects only a “collective” right:

If only as a matter of consistency, Professor Levinson continued, liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment. And just as the First Amendment’s protection of the right to free speech is not absolute, the professors say, the Second Amendment’s protection of the right to keep and bear arms may be limited by the government, though only for good reason.

And it was this shift in consensus that led to cases such as Parker v. District of Columbia:

Robert A. Levy, a senior fellow at the Cato Institute, a libertarian group that supports gun rights, and a lawyer for the plaintiffs in the Parker case, said four factors accounted for the success of the suit. The first, Mr. Levy said, was “the shift in scholarship toward an individual rights view, particularly from liberals.”

In other words, ideas have consequences.

Parker v. D.C. Update

Parker v. District of Columbia, the case in which a three-judge panel of the D.C. Circuit Court of Appeals struck down the District of Columbia’s gun ban, is headed a hearing before the entire D.C. Circuit Court of Appeals

Lawyers for the District filed a petition this morning asking a federal appeals court to revisit last month’s decision by a panel of judges that the city’s gun law is unconstitutional.

After a three-judge panel ruled that the city’s restrictions on gun ownership violated the Second Amendment of the Constitution, Mayor Adrian M. Fenty (D) and other city leaders vowed to fight the decision. Today Fenty was at the federal courthouse when city lawyers filed the petition.

The mayor said that after all the work that has gone into bringing crime down, the city cannot afford to accept a ruling that would increase the number of guns in the city.

“More guns quite simply leads to more violence,” Fenty told reporters outside the courthouse. He was flanked by Attorney General Linda Singer, Council members Phil Mendelson (D-at large) and Marion Barry (D-Ward 8) and Police Chief Cathy L. Lanier.

For decades the District has had some of the most restrictive gun laws in the country, prohibiting private citizens from owning handguns and limiting ownership and use of rifles and shotguns.

The restrictions have drawn the ire of libertarians, gun enthusiasts and others, and this is not the first time the laws have come under fire.


The District could have appealed directly to the Supreme Court, bypassing a possible review by the full, or en banc, court and the case may yet appear before the nation’s highest tribunal.

But Singer said the city’s interests would be served by allowing the full appeals court to hear the case. “We want to give them a chance to look at this first,” Singer said at the briefing outside the court house.

With one of the court’s 11 seats vacant, the case would be heard by 10 judges on the court and by Silberman. As a senior judge Silberman would not ordinarily sit for en banc reviews but would in this case because he was a member of the panel that issued the decision.

Singer said she expected the court would decide this spring whether to grant the city’s petition for en banc review, and that if it did, the case would likely be argued in the fall.

The Court of Appeals could, of course, decline not to hear the en banc review but that seems unlikely.

The NRA vs. The Second Amendment

In today’s Washington Examiner Robert Levy, one of the lead attorneys in the Parker v. District of Columbia case which recently resulted in a clear victory for an individual rights interpretation of the Second Amendment, wonders why the National Rifle Association is pursuing a strategy that would prevent the Supreme Court from ruling on the case.

The problem, Levy contends, is the D.C. Personal Protection Act which would make Parker a moot case and result in the end of the appeals process:

Parker is the first federal appellate decision to invalidate a gun control statute on Second Amendment grounds. Federal circuit courts covering 47 states have held that there’s no recourse under the Second Amendment when state and local gun regulations are challenged. That means Parker could be headed to the Supreme Court.

Enter Congress and the NRA. First, Reps. Mike Ross, D-Ark., and Mark Souder, R-Ind., introduced the D.C. Personal Protection Act. Then, on March 28, Sen. Kay Bailey Hutchison, R-Texas, followed suit in the Senate. Both bills, pushed hard by the NRA, would repeal the D.C. gun ban.

Ordinarily, that might be a good thing. But passage of the bills would kill the Parker litigation. It isn’t possible to challenge a law that has been repealed. Yet, Sen. Hutchison claims in her press release that she favors “both a legislative and judicial remedy. I hope the Parker case goes before the Supreme Court and that the court asserts that the right to bear arms is an individual, and not a collective, right. …”

While taking the case to the Supreme Court is risky — after all, the Court court reverse the landmark March 9th ruling — Levy contends that it’s worth the risk:

First, legislative repeal of the D.C. gun ban will not stop criminal defense attorneys and Public Defenders from citing the Second Amendment when they challenge “felon in possession” charges. Thus, if Parker is derailed, the next Second Amendment case to reach the Supreme Court could feature a murderer or drug dealer instead of six law-abiding citizens.

Second, a bill aimed at D.C. does only part of the job. It could be repealed by a more liberal Congress. And it will have no effect on state law outside of D.C. In effect, those who support the D.C. Personal Protection Act will be opposing an unambiguous Supreme Court proclamation on the Second Amendment, applicable across the nation.

Third, the Supreme Court is more conservative today than it’s been for some time, and probably more conservative than it’s going to be. In the unlikely event that five current justices decide to read the Second Amendment out of the Constitution by upholding a total ban on handguns, that would be the time for Congress to act. Until then, the D.C. Personal Protection Act is premature and counter-productive.

For some strange reason, the NRA was never behind the Plaintiffs in the Parker case and instead choose to pursue it’s own agenda. Now, by doing so, it is threatening to derail a case that could advance liberty nationwide.

George Will On The Parker Case

George Will has a good column up at on the Parker v. District of Columbia, where the D.C. Circuit Court of Appeals recently struck down the District of Columbia’s gun ban based on an individualist interpretation of the Constitution.

As Will points out there is an important similarity between those who would whittle down the right to keep and bear arms protected by the Second Amendment and the rights protected by the First Amendment:

When Madison and others fashioned the Bill of Rights, they did not merely constitutionalize — make fundamental — the right to bear arms. They made the Second Amendment second only to the First, which protects the freedoms of speech, press, assembly and worship. They did that because individual dignity and self-respect, which are essential to self-government, are related to a readiness for self-defense — the public’s involvement in public safety. Indeed, 150 years ago this month, in the Dred Scott decision, Chief Justice Roger Taney said that one proof that blacks could not be citizens was the fact that the Founders did not envision them having the same rights that whites have, including the right to “keep and carry arms.”

Increasingly, however, some constitutional scholars and judicial rulings argue that several restraints the Bill of Rights puts on government can be disregarded if the worthiness — as academics or judges assess that — of government’s purposes justifies ignoring those restraints. Erwin Chemerinsky, professor of law and political science at Duke University, argued in The Washington Post last week that even if the Second Amendment is correctly construed as creating an individual right to gun ownership, the D.C. law should still be constitutional because the city had a defensible intent (reducing violence) when it annihilated that right.

Sound familiar? Defenders of the McCain-Feingold law, which restricts the amount, timing and content of political campaign speech, say: Yes, yes, the First Amendment says there shall be “no law … abridging the freedom of speech.” But that proscription can be disregarded because the legislators’ (professed) intent — to prevent the “appearance” of corruption and to elevate political discourse — is admirable.

As Will points out, the Parker case is potentially one of the most important Constitutional cases to reach the Supreme Court in some time. If the Court sustains the Court of Appeals decision and restores the Second Amendment to the place that it belongs, it will have a profound impact on gun laws across the country. If, however, the Court accepts the political expediency arguments of the gun ban’s proponents, then it will have succeeded in denegrating the Second Amendment just as it’s decision upholding the McCain-Feingold law denegrated the First Amendment.

A Litigator For Liberty

Today’s Washington Post has a profile of Robert Levy, the lead attorney in the case against the District of Columbia’s gun law:

Meet the lawyer who conceived the lawsuit that gutted the District’s tough gun-control statute this month. Meet the lawyer who recruited a group of strangers to sue the city and bankrolled their successful litigation out of his own pocket.

Meet Robert A. Levy, staunch defender of the Second Amendment, a wealthy former entrepreneur who said he has never owned a firearm and probably never will.

“I don’t actually want a gun,” Levy said by phone last week from his residence, a $1.7 million condominium in a Gulf Coast high-rise. “I mean, maybe I’d want a gun if I was living on Capitol Hill. Or in Anacostia somewhere. But I live in Naples, Florida, in a gated community. I don’t feel real threatened down here.”

He is 65, a District native who left the city 40 years ago for Montgomery County, a self-made millionaire who thinks the government interferes too much with people’s liberties. He was an investment analyst before he sold his company for a fortune and enrolled in law school at age 49. Now he’s a constitutional fellow with the libertarian Cato Institute in Washington, working in his luxury condo 1,000 miles away.

It was his idea, his project, his philosophical mission to mount a legal challenge to the city’s “draconian” gun restrictions, which are among the toughest in the nation. The statute offends his libertarian principles, Levy said. And it is entirely his money behind the lawsuit that led a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit to strike down the statute this month, a ruling that stunned D.C. officials and gun-control advocates. The city said it will appeal the decision.

Although one of the Plaintiff’s in the case is Tom Palmer of the Cato Institute, the lawsuit was largely Levy’s idea, financed with his own money and done on his own time. Why ? Because the law violates his principles and he wanted to change it:

To Levy the libertarian, though, the effectiveness of the law — its success or failure in curbing crime — isn’t the core issue. What matters most to him is whether the statute unjustly infringes on personal liberties. He doesn’t dispute that “reasonable” gun controls are permissible under the Second Amendment. But the District’s law amounts to “an outright prohibition,” Levy said, and “that offends my constitutional sensibilities.”

So he opened his wallet and did something about it.

And the rest, as they say, is history, with the final chapter waiting to be written by the Justices of the United States Supreme Court.

As I read the article, I couldn’t help but think of Levy as a modern-day version of the Founding Fathers. He saw a law that he disagreed with, a law that didn’t even impact him since he didn’t live in the District and doesn’t like guns, and he did something to change it. It’s nice to know there are still people like that around.

Further Thoughts On The D.C. Gun Lawsuit

Bob Levy, one of the attorneys who argued for the Plaintiffs in the District of Columbia gun case, has a column in today’s Washington Post explaining why this lawsuit was necessary:

Killers who are not deterred by laws against murder are not going to be deterred by laws against guns. Anti-gun regulations don’t address the deep-rooted causes of violent crime — such as illegitimacy, unemployment, dysfunctional schools, and drug and alcohol abuse. The cures are complex and protracted. But that doesn’t mean we have to become passive prey for criminal predators. Americans who want to defend themselves by possessing suitable firearms should be able to do so.

Off and on over the years, Washington has reclaimed its title as the nation’s murder capital. The D.C. government has been minimally effective in disarming violent criminals. But it has done a superb job of disarming decent, peaceable residents. For starters, no handgun can be registered in the District. Even pistols registered before the District’s 1976 ban cannot be carried from room to room in a home without a license, which is never granted. Moreover, all firearms in the home, including rifles and shotguns, must be unloaded and either disassembled or bound by trigger locks.

In effect, no one in the District can possess a functional firearm in his or her residence. And the law applies not just to “unfit” persons such as felons, minors or the mentally incompetent, but across the board to ordinary, honest, responsible citizens who live in the District, pay their taxes in the District and obey the laws of the District.

It’s an old adage — when guns are illegal, only criminals will have guns. For 30 years that is exactly what the situation on the ground in the District of Columbia has been. Law abiding citizens are forbidden to own weapons to protect themselves. The police are incapable protecting the citizenry. And the District of Columbia continues to have one of the highest murder rates in the country.

Meanwhile, the District Government and the editorial board of the Washington Post operate under the delusion that the gun ban is the only thing that stands between the city and a massive crime wave. The fact that there already is a massive crime wave seems to have escapted their attention.

Allowing residents of the District of Columbia to own guns may not solve all of D.C.’s crime problems, but it can hardly make the situation any worse than it already is.

A Major Second Amendment Victory

The U.S. Court of Appeals for the D.C. Circuit has struck down the District of Columbia’s gun ban and done so while recognizing that the right to keep and bear arms guaranteed by the Second Amendment is an individual right:

Divided three-judge D.C. Circuit panel holds that the District of Columbia’s gun control laws violate individuals’ Second Amendment rights:

You can access today’s lengthy D.C. Circuit ruling at this link.

According to the majority opinion, “[T]he phrase ‘the right of the people,’ when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.” The majority opinion sums up its holding on this point as follows:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

The importance of this opinion cannot be understated. Gun control advocates have consistently attempted to argue that the Second Amendment’s protection of the right to keep and bear arms was a “collective” right that applied, for example, to the right of individual states to form militas and control state National Guard units. This argument, of course, is completely inconsistent with the Founders view of the individual right to keep and bear arms, which is why this Court of Appeals decision is, as Jason Pye put it, very good news.

It looks like my fellow contributor Chris and I were thinking along the same lines at about the same time.

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