Does the Second Amendment Apply to D.C.?

Article excerpt

ITEM: "Plagued by high homicide rates," said the Associated Press on July 16, "officials in the U.S. capital said Monday they will petition the Supreme Court as they seek to defend Washington's 30-year-old ban on most handguns." The wire-service story continued: "'We have made the determination that this law can and should be defended,' Mayor Adrian M. Fenty said in a statement Monday. 'The handgun ban in the District of Columbia has saved many lives since then and will continue to do so if it remains enforced,' he added. Police Chief Cathy Lanier said 75 of Washington's 97 homicides this year were committed with firearms."

ITEM: The Washington Post for July 19 said the decision to seek a Supreme Court review of a court opinion that struck down the District's stringent gun-control laws was "fraught with risk." Editorialized the paper: "As a matter of public safety and public policy, we support the District's gun control regime. We believe that compelling public safety concerns allow regulation of weapons even if a right to bear arms is recognized. But the D.C. Circuit's decision, written by Senior Judge Laurence H. Silberman, is not without merit--and that's where the risk comes in. The idea that the Second Amendment recognizes an individual right to bear arms is not exclusive to right-wing gun nuts, as adversaries sometimes call them. Some of the brightest liberal minds in the legal community have come--albeit reluctantly--to the same conclusion."

The Post urged the Supreme Court "to balance constitutional principles with modern-day realities."

CORRECTION: In striking down the gun laws in the District of Columbia, the most pertinent point--as recognized by the U.S. Court of Appeals for the D.C. Circuit, if not by the mayor of the District of Columbia or the Washington Post--is that this ban against gun ownership and self-defense is plainly unconstitutional. Moreover, the prohibition has clearly not kept guns out of the hands of criminals, nor has it made the citizens of the federal district safer.

The Post now says it wants the Supreme Court to "balance" constitutional principles about the Second Amendment with today's "realities." Now, that's not what you would call a firm principle. One doesn't have to wonder too hard what the Post would say about the First Amendment if the government, in an effort to balance the rights of readers with a campaign against the spread of feeble-mindedness, decided it would shut down the newspaper.

In a landmark decision in March, the U.S. Court of Appeals for the D.C. Circuit ruled that the gun-control laws imposed by the City Council in the mid-1970s violated the U.S. Constitution. District citizens have been outlawed from possessing handguns not registered with the police before September 1976, and prevented from legally using a firearm for protection in the home by requiring that they be "unloaded, disassembled, or bound by a trigger lock or similar device."

Here are some highlights of the appellate ruling, in which the court held that the Second Amendment protects the individual fight of the named plaintiff (Shelly Parker) to own a firearm, and that her rights had been infringed. The court's reasoning dismayed those who have maintained that the Second Amendment is archaic or refers only to a collective right of the states to maintain militias.

For example, wrote Judge Laurence Silberman for the Court:

* In the Second Amendment, "the most important word is the one the drafters chose to describe the holders of the right, 'the people.' That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation." (Emphasis in original.)

* "In sum, the 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. …