Court Dumps D.C. Gun ban
worldnetdaily.com
Court dumps D.C. gun ban
Federal appeals judges' opinion declares 2nd Amendment grants individual right
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Posted: March 9, 2007
3:41 p.m. Eastern
© 2007 WorldNetDaily.com
In a major decision addressing interpretation of the Second Amendment, a federal appeals court today overturned the District of Columbia's handgun ban, declaring the constitutional right to bear arms is not limited to militias as the city had argued.
The majority opinion in the 2-1 decision said activities protected by the Second Amendment "are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia."
The judges also ruled unconstitutional the city's requirement that registered firearms be kept unloaded, disassembled and under trigger lock.
Writing for the majority, Judge Laurence Silberman said the Second Amendment's "prefatory language announcing the desirability of a well regulated militia – even bearing in mind the breadth of the concept of a militia – is narrower than the guarantee of an individual right to keep and bear arms."
"The Amendment does not protect 'the right of militiamen to keep and bear arms,' but rather 'the right of the people,'" the judges asserted.
The opinion continued:
"The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias. Again, we point out that if the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit—and thus the most appropriate to express in a political document."
Silberman said in his opinion, however, the Second Amendment is still "subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment," including gun registration, firearms testing and restrictions on ownership for criminals or the mentally ill.
The decision overturns a 2004 ruling by a lower-court judge who told six D.C. residents – seeking to be armed for protection – they did not have a constitutional right to own handguns.
In dissent of today's decision, Judge Karen Henderson wrote the Second Amendment does not apply to D.C. because it is not a state.
If the case is appealed to the Supreme Court, it would be the first in nearly 70 years to address the scope of the Second Amendment.
And this one:
bloomberg.com
D.C. Handgun Ban Struck Down by Federal Appeals Court (Update5)
By Cary O'Reilly
March 9 (Bloomberg) -- A U.S. appeals court struck down a three-decade-old District of Columbia law that bans residents from keeping a handgun in their homes, saying the Constitution's Second Amendment protects an individual right to bear arms.
The U.S. Court of Appeals for the D.C. Circuit in Washington also threw out a district law requiring registered firearms to be kept disassembled or under trigger lock.
It's the first time a federal appeals court has struck down a gun-control measure on Second Amendment grounds. Nelson Lund, a constitutional law professor at George Mason University in neighboring Virginia, said an appeal to the U.S. Supreme Court is ``very likely.''
``This is clearly an extremely significant ruling,'' Lund said. ``The District of Columbia had some of the most restrictive gun control laws in the country.''
The appeals court said it didn't consider the ``more difficult issue'' of whether the district can bar people from carrying handguns in public or in cars.
The Second Amendment says, ``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.''
Lawyers for the District of Columbia, which banned residents from owning handguns in 1976 for public safety reasons, argued that the amendment guarantees the right to bear arms only for members of a militia.
`Bear Arms'
The appeals court rejected that argument in today's 2-1 ruling.
``There are too many instances of `bear arms' indicating private use to conclude that the drafters intended only a military sense,'' Senior Judge Laurence Silberman wrote for himself and Judge Thomas Griffith.
Judge Karen Henderson dissented, saying that because the capital district isn't a state, the Second Amendment doesn't apply to it. Silberman was nominated to the court by President Ronald Reagan, while Henderson was nominated by President George H.W. Bush and Griffith was nominated by President George W. Bush.
``Today's decision flies in the face of laws that have helped decrease gun violence in the District of Columbia,'' District Mayor Adrian Fenty said at a news conference.
``We intend to do everything in our power to get this decision overturned,'' Fenty said. The district most likely will ask the full D.C. Circuit to reconsider the case, and the law will remain in effect during that procedure, he said.
`Off of Our Streets'
District City Council Chairman Vincent Gray said, ``We grapple with keeping guns off of our streets every day.'' Winston Robinson, assistant chief of the district's police department, said the decision ``puts more guns in the hands of youth.''
Most U.S. appeals courts to consider the issue have said the Second Amendment preserves state militias and doesn't protect individual rights.
The exception is the New Orleans-based 5th Circuit, which said in non-binding language in 2001 that individuals have Second Amendment rights. Nonetheless, the 5th Circuit said the defendant in that case was properly convicted of possessing a gun in violation of a restraining order.
The Bush administration, in papers filed at the Supreme Court in 2002, agreed that the defendant in the 5th Circuit case was properly convicted. The government also argued, though, that the Second Amendment protects individual rights, reversing a decades-old Justice Department position that the provision was designed to let states sponsor militias. The Supreme Court didn't hear the 5th Circuit case.
Almost 70 Years
The Supreme Court hasn't taken up a case directly addressing the Second Amendment in almost 70 years and has avoided several opportunities to do so, according to Nicholas Johnson, a law professor at Fordham University in New York.
``The court may be more willing to take up this case now than 20 years ago,'' when the issue was more controversial, Johnson said in an interview. ``There has been a massive and dramatic shift'' in political sentiment away from gun control, he said.
Justice Clarence Thomas wrote in a separate opinion in a 1997 case that ``a growing body of scholarly commentary indicates that the `right to keep and bear arms' is, as the amendment's text suggests, a personal right.'' In that case, the court used other constitutional grounds to rule that the federal government couldn't force state officials to conduct background checks on gun purchasers.
The National Rifle Association, which campaigns against gun control laws across the U.S., hailed the ruling.
`The Right Decision'
``We think the court made the right decision,'' said NRA spokesman Andrew Arulanandam. ``We've always thought and maintained that the residents of the District of Columbia are just as equal as residents elsewhere and ought to enjoy Second Amendment freedoms.''
Paul Helmke, president of the Brady Center to Prevent Gun Violence, a Washington advocacy group, said in a statement the decision ``is judicial activism at its worst.''
``Two federal judges have negated the democratically expressed will of the people of the District of Columbia,'' Helmke said.
The case was filed in 2004 by six district residents, including four who wanted to legally possess handguns in their homes for self-defense. Another owns a registered shotgun and was required to keep it disassembled and hindered by a trigger lock. The sixth, who carries a handgun as a security guard at the Federal Judicial Center, was denied a registration certificate to keep one at home.
The case is Parker v. D.C., 04-7041, U.S. Court of Appeals for the District of Columbia Circuit (Washington).
To contact the reporter on this story: Cary O'Reilly in Washington at caryoreilly@bloomberg.net . |
