It’s not every day a federal circuit court rocks the political, legal, and academic worlds. But on March 9, the U.S. Court of Appeals for the District of Columbia Circuit did just that, ruling in the biggest gun-control case in nearly 70 years and perhaps placing a Supreme Court case smack in the middle of the 2008 presidential race. Senior Judge Laurence Silberman wrote for a 2-1 majority in Parker v. District of Columbia, “The Second Amendment protects an individual right to keep and bear arms.” The court rejected the District of Columbia’s argument that the Second Amendment does not protect individual gun ownership rights but merely protects states’ rights to form armed militias, and the court invalidated the District’s ban on handgun ownership and registration (except for guns registered prior to 1977), its prohibition on carrying pistols in the home without a license, and its requirement that all guns, including rifles and shotguns, be unloaded and either disassembled or bound by a trigger lock.

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At issue is the meaning of the oddly constructed text: “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 Stuart Taylor explained in National Journal, since the Supreme Court last ruled on the Second Amendment in 1939, most courts and legal scholars have held: “The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.” The D.C. Circuit Court essentially replied: “Wrong.” Having found an individual right of gun ownership for the plaintiffs, the court then struck down the ban as an obliteration of that right.

The case will almost certainly be appealed to the en banc panel of the D.C. Circuit and then to the Supreme Court. Attorneys for the parties, as well as other legal experts, rank the likelihood that the Supreme Court will hear this case as high, given that the case would entail invalidation of a statute, a conflict between federal circuit courts, and a constitutional issue of wide ranging importance — all weighty considerations when it comes to granting certiorari. The Supreme Court could well be deciding the issue in the thick of the 2008 presidential season. Georgetown Law Professor Paul Rothstein suggests that that may be just the beginning, explaining: “I do not think any of them [the Supreme Court justices] would take the view that there is an absolute right to bear arms.” In the end he predicts: “The likelihood is that it will be held that there is an individual right that gives way to a strong, specific state interest expressed in a relatively narrowly tailored legislative provision, under some type of ‘intermediate scrutiny’ test.”

Con and Pro
Among partisans, the reaction was fast, furious, and predictable. Mayor Fenty declared: “I am strongly opposed to the Court’s decision. District residents deserve every protection afforded to them under District law.” The Brady Campaign to Prevent Handgun Violence issued a statement that the decision was “judicial activism at its worst” and, echoing the conservative theme of judicial restraint, decried that “two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports.” The Washington Post and New York Times editorial pages blasted the decision.

On the other side, gun supporters celebrated. The Cato Institute trumpeted the work of its senior fellow Robert Levy, co-counsel for the plaintiffs, in obtaining a ruling that Second Amendment rights “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 American Civil Rights Union (ACRU) and the NRA, which both filed amicus briefs, applauded the decision. The Second Amendment Foundation declared: “This is a huge victory for firearm civil rights. It shreds the so-called ‘collective right theory’ of gun control proponents, and squarely puts the Second Amendment where it has always belonged, as a protection of the individual citizen’s right to have a firearm for personal defense.”

In addition to dueling press releases, arguments soon broke out about the case’s prospects. David Gossett, representing the Violence Policy Center seeking to uphold the D.C. gun ban in the case, stated, “I think en banc review is quite likely; given the makeup of this panel, and the fact that Judge Henderson—a well-known conservative judge—dissented, I expect the full D.C. Circuit will be interested in the case. I also think the en banc court is reasonably likely to reverse the panel. Judge Silberman’s opinion is fundamentally inconsistent with Miller, the Supreme Court’s precedent in this area.” On the other hand, Robert Levy predicted that the plaintiff’s “very compelling argument” would be sustained by the Supreme Court, but cautioned that even if the personal right to gun ownership were upheld, most gun restrictions would need to meet the very tough “strict scrutiny” standard to pass muster. Depending on the individual circumstances of specific cases, he believes there would be “close calls” on waiting-time statutes and restrictions on multiple sales of weapons. Peter Ferrara, general counsel of ACRU, while confident of the gun owners’ prospects should the case reach the Supreme Court, agrees that the Supreme Court is highly unlikely to find an “absolute right” of gun ownership and that it is unrealistic to think there will be “no regulation of guns.” Certainly this decision could open years of ongoing litigation.

Contenders Under the Gun
Aside from potentially opening a new chapter in constitutional jurisprudence, the case may reignite gun rights as a presidential political issue. Deemed to be a political loser for Democrats, John Kerry, aside from donning newly purchased hunting garb, tried his best to steer clear of the issue in 2004. Because of the Parker case, 2008 may be different. University of Virginia politics professor Larry Sabato observes: “The gun issue waxes and wanes like all the others, but it’s a tinderbox, ready to explode at any time.” He further notes: “The public may support gun control in theory, but the largest number of votes by far has been and continues to be on the antigun control side. Therefore, Democrats ought to be afraid of this one in terms of the general election”

Paul Helmke, former mayor of Fort Wayne and now president of the Brady Center Against Handgun Violence, suggests that “both sides have had it easy” in the gun debate, finding it politically safe to express general support for hunters and gun ownership but professing support for “reasonable restrictions” on gun ownership. Now candidates of both political parties may be forced, as they have been in the abortion arena, to take stands on specific issues.

Each of the candidates faces questions about his past and present views. Romney’s campaign, in response to an inquiry for this story, said that “the court correctly decided the D.C. gun case by upholding the right of individuals to keep and bear arms.” He now proudly sports an NRA membership. However, in 1994 he did support the NRA-opposed waiting period on gun sales and a ban on some types of assault weapons. Press accounts have since pointed out his statements in 1994 that this position was “not going to make me the hero of the NRA” and his comment in the gubernatorial debate in 2002: “We do have tough gun laws in Massachusetts; I support them. I won’t chip away at them; I believe they protect us and provide for our safety.” Spokesman Eric Fehrnstrom insisted in a written response that “the Governor’s views have not changed” on gun rights and explained “Governor Romney supported an extension of the state assault weapons ban in Massachusetts as part of comprehensive legislation that also loosened some of the state’s more onerous licensing restrictions.”


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