Why You Should Care About Parker v. District of Columbia

Townhall.com ^ | May 1, 2007 | Sandy Froman

[neverdem]

There is a case working its way to the Supreme Court that might settle one of the biggest unanswered questions in constitutional law: Does the Second Amendment guarantee an individual right to own a gun? Whether or not you own a gun, this is a case you should care about.

I’m not just saying that because I’m the immediate past president of the National Rifle Association. (Last month I completed my two-year term as president and nine years as an officer of the NRA.) I’m also saying it as an attorney who’s been arguing cases in federal court for more than 30 years, and who understands how a clear precedent on a constitutional question can determine the outcome of a case.

There is a case moving towards the High Court that will likely give us such a precedent on your right to own a gun – a precedent that is either good or bad, depending on your point of view. That case is Parker v. District of Columbia.

I often get asked why there is such a passionate debate on whether the right to own a firearm is a civil right. Everyone agrees that the Constitution speaks about firearms. The Second Amendment speaks of, “the right of the people to keep and bear arms.”

The disagreement is over what those words mean. Most people believe what is called the individual rights view of the Second Amendment, meaning that all law-abiding, peaceable citizens have the individual right to own firearms. The opposing interpretation is called the collective rights view, meaning that the Second Amendment is only a right of state governments to arm their National Guard units.

Polls show that more than 70% of Americans (correctly) believe that they have a civil right under the Constitution to own a gun. But in America we don’t decide constitutional controversies by taking a poll.

Only federal courts—and ultimately the Supreme Court—have the power to interpret the Constitution in a binding way. The Supreme Court has never spoken definitively on the scope or meaning of the Second Amendment. And the Court’s silence has allowed cities and states to enact broad, sweeping laws hostile to gun ownership.

The worst of these laws is the District of Columbia gun ban. If you live in our nation’s capital, you cannot have a handgun or a readily-usable rifle or shotgun in your own home for self-defense. No ifs, ands or buts. It is a near-blanket prohibition on firearms and self-defense.

That brings us to the Parker case. The named plaintiff, Shelly Parker, lives in the high crime area of DC and has been threatened by thugs and drug dealers. She wants to be able to protect herself and she sued the city government over the gun ban. It’s shocking to realize that in one of the most violent cities in America, a woman is denied the tool that might save her life.

But it’s the law in the District, so she took the District to court.

On March 9, in a landmark ruling the U.S. Court of Appeals for the District of Columbia Circuit struck down the DC gun ban as unconstitutional in a 2-1 decision. The DC Circuit Court held that the Second Amendment protects a citizen’s civil right to own firearms, adopting the individual rights view, and invalidated the DC law.

As you would expect, the DC government is appealing the ruling. Earlier this month DC petitioned for what is called an en banc rehearing. That means that all eleven eligible judges on the DC Circuit would hear the case, instead of the usual three-judge panel. As you read this we are waiting to see if the circuit court grants or denies that petition.

Regardless of whether the full DC Circuit Court hears the case en banc, the losing party will certainly appeal to the U.S. Supreme Court. And without going into all the legal rules and reasons that help determine whether the Court takes a given case, let me just say the odds are good that the Court will take this one.

This case is monumental. Already the DC Circuit Court opinion—if left untouched—will totally change gun ownership rights in the District of Columbia. And the DC Circuit is one of the most respected and well-credentialed courts in America. Its opinions and rulings have a major impact on courts and lawmakers all over the country.

But as important as the DC Circuit is, it pales in comparison to the Supreme Court. If the Supreme Court takes this case, it could have a huge impact all across our land.

There’s so much more to be said regarding this case. I’ll have more to write on this once the DC Circuit decides whether to rehear en banc. In the meantime, this is a case you want to be watching. There’s a lot at stake, not just for gun owners but for all who believe in upholding the Constitution and enforcing our civil rights.

Sandy Froman is the immediate past president of the National Rifle Association of America, only the second woman and the first Jewish American to hold that office in the 136-year history of the NRA.

[Frohickey]

What happens if they win?!
: 0

If they win in SCOTUS, after they lose in en banc appeal, they still lose, because we already have the 'reset button' on the US Constitution. (If the SCOTUS hands us a defeat, the entire experiment in self-governing needs to get refreshed...usually with the blood of tyrants and patriots.)

[lepton]

Do you now think Ginsburg and Souter will contradict themselves?

Ginsberg at least, did so in Bush V. Gore on a matter she'd ruled with the unanimous majority just weeks before.

[E. Pluribus Unum]

Believe me when I say I hate to say this, but DC won't loose.

I think they will.

[Osage Orange]

Sometimes you just have to ask yourself.....

"Is this the hill I want to die on?"

MOLON LABE

[caver]

“Any one out there have any confidence in our Supreme Court?”

No

[robertpaulsen]

“This lawsuit”? I didn’t say idiots started this lawsuit. I said the idiots are those who want a U.S. Supreme Court showndown.

[Shooter 2.5]

What irks me about lawyers is they always pose for pictures with hundreds of law books on a bookcase directly behind where they are sitting.
And most of the lawyers in this country can’t read a simple seventeen word sentence.

[robertpaulsen]

"I thought it was Ms. Parker and the District who were insisting on having their day in court."

Yes, they did. And they got it. No problem there.

"Didn't know it was all due to us idiot FReepers."

No, I said the idiots were those on this board who are now pushing for a U.S. Supreme Court showdown.

[caver]

True, I hate those lawyer ads where they’re on TV trying to hustle up some personal injury lawsuit.

[robertpaulsen]

"They just put a shot across the bow of SCOTUS and these two justices that they are already on record in a various opinions that the Second Amendment is an individual right."

WHAT??? They're "on record" for saying what?

Did you even read Muscarello? The Muscarello court was attempting to define the phrase "carries a firearm" in Section 924(c)(1) of Title 18, United States Code to see if enhanced punishment applied to the defendant in that case.

The court mentioned a number of possibilities of what it meant, including the second amendment. BUT, they concluded, "Such references, given their variety, are not reliable indicators of what Congress meant, in §924(c)(1), by “carries a firearm.”

Your level of ignorance on this subject is astounding. You'd hang everything on the Parker court interpretation of what Souter and Ginsburg said in the Muscarello case? Calling you a moron would be a compliment.

But even IF the Muscarello opinion could be interpreted as saying the second amendment protected an individual right, so what? Numerous lower federal courts in numerous cases have said the same -- an individual right to keep and bear arms as part of a Militia. Even the favorable court in Emerson recognized this in their opinion:

"Proponents of the next model admit that the Second Amendment recognizes some limited species of individual right. However, this supposedly "individual" right to bear arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia's activities. A number of our sister circuits have accepted this model, sometimes referred to by commentators as the sophisticated collective rights model."
-- United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)

[robertpaulsen]

"But you are opposed to the individual right."

That had better be a question.

Here's a hint. Next time use the symbol ? at the end of your sentence. Using a period means you're making a statement. If you are indeed making a statement then you are either ignorant of my position or intentionally insulting me.

The second amendment protects the ability of the states to form an armed and well regulated state Militia from federal infringement. That is according to every lower federal court in every lower federal court opinion (save two).

This is not my position. This is not my desire. This is not my interpretation. This is merely a fact.

Your individual RKBA is protected by your state constitution. This is also a fact. (This is why different states have different gun laws -- for example, concealed carry. Think, man. Use your brain. If concealed carry was protected by the second amendment, every state would HAVE to allow it).

Now, once you know and accept these facts, you then know where to focus your efforts to enhance our gun rights. Do not waste your time at the federal level and certainly do not think that the federal government will take care of your gun rights.

That would be like putting the fox in charge of the henhouse, yes?

[robertpaulsen]

Chicago bans handguns. As does Wilmette, Illinois and Morton Grove, Illinois (Illinois has home rule). There may be more, I don't know.

You cannot own, possess, keep, store, carry, use, borrow, hold or fondle a handgun in those cities.

Are there exceptions? Of course. Cops, aldermen, other city officials, their bodyguards and, of course, the thousands of criminals and gang bangers. But I'm talking about the general public.

There was a recent story of a homeowner in Wilmette who shot a burglar as the burglar entered the house. The homeowner was arrested for possessing a handgun.

[William Terrell]

Well, I would never have thought the court would have ruled as in Kelo or the McCain-Finegold challenge, both completely against the Constitution in spirit and letter, either, but it did.

There seems to me to be certain rights the people have that they cannot have if central authority and socialism is to rule as completely as the movements at the fed level would imply.

It's clear to me, and I'd say to those working for the goal of a socialist nation, the people cannot be allowed to have guns, legally and ubiquitous as they are now.

Especially with an intention to open our borders and merge the US with Canada and Mexico, as Mr. Bush has said more than twice and the existence of a government agency existing to work toward that end testifies.

Regardless of the Parker decision about states regulating arms, if the SC says differently, that decision will rule.

I hope I'm wrong and you're right, but he current decisions of the SC aren't hopeful.

I'll make another prediction. At least one, but probably both, of Mr. Bush's SC appointments will side with DC. They are both internationalist, as is Mr. Bush. This was said of Roberts twice by the media during his confirmation process.

[William Terrell]

I hope you're right and I'm wrong, but the Constitutional basis of decision hasn't fared well at the SC recently.

[E. Pluribus Unum]

The homeowner was arrested for possessing a handgun.

Serves him right for not using a 12-gauge!

</sarcasm>

[robertpaulsen]

What's to be gained if the U.S. Supreme Court declared an individual RKBA? Seriously.

Every state already protects an individual right. Granted, some states are more restrictive than others. But they all allow an individual RKBA.

What do you think we'll gain by a U.S. Supreme Court ruling? Do you think they'll also say that the second amendment protects concealed carry -- anywhere, anytime, by anybody? Do you think they'll also say that all weapons are protected -- machine guns, rocket launchers, tanks, artillery, grenades, flame throwers, etc.?

Keep in mind the Parker court added that reasonable restrictions would, of course, be allowed under the second amendment. And just to show neverdem that I read Parker:

"That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment. And as we have noted, the United States Supreme Court has observed that prohibiting the carrying of concealed weapons does not offend the Second Amendment."

Uh-oh. Did you see that, Freedom_Is_Not_Free? Do you realize what that means, Freedom_Is_Not_Free? Or should I call you "idiot among idiots"?

Let's do it your way. It goes to the U.S. Supreme Court and they say the second amendment protects an individual right. Yay! Let's all celebrate!

Now, either this court, or some future liberal court, says that the second amendment doesn't protect concealed carry, meaning that ALL 50 STATES must comply. Hmmmmm.

Hey, even worse. Some future liberal court says that "arms" doesn't include handguns. Turn 'em in. Or "keep" means to keep in a state armory, not at home.

Oh, that won't happen robertpaulsen. Oh, no. Just like abortion cannot possibly be a protected right. Or sodomy. Or, eminent domain only applies to cities taking property, not private enterprise. Or the first amendment can't possibly apply to nude dancing. Or, certainly the first amendment protects political speech 90 days before an election.

Yeah, good idea. Let's have these 9 yahoos on the U.S. Supreme Court interpret the meaning of the second amendment for every state.

"Idiot" is perhaps too kind. "Traitorous, Sarah Brady lacky" might be a better descriptor for you and others who want this.

[robertpaulsen]

"The earlier legal record is clear that the right was intended, as was the rest of the bill of rights, as an INDIVIDUAL right."

Recently, we have Parker and before that, Emerson, declaring an individual right. That's two lower federal circuit court cases favoring the individual rights interpretation (Emerson is weak in that it overturned no federal law, but I'll still include it).

Those 2 vs. maybe 40 other lower federal circuit court cases declaring a collective right. The U.S. Supreme Court will be examining those lower court decisions when they go about their interpretation of the second amendment.

You say there's an earlier legal record of individual right interpretations? By federal circuit courts? I know of none. Zero. Zilch.

But if you have some, I would be interested in reading them and will certainly correct my statement.

"Even a great many liberal constitutional academics agree."

Well, color me unimpressed. Academics also believe man causes global warming. And 5,000 people are members of the Flat Earth Society.

[robertpaulsen]

And die we will.

I'm with General Patton -- let's find a hill for the liberal gun-grabbers to die on, okay? This ain't it.

[robertpaulsen]

If you knew what you were talking about, I might be insulted by your remarks.

As it is, I'm merely amused.

[Ancesthntr]

Only federal courts—and ultimately the Supreme Court—have the power to interpret the Constitution in a binding way.

Not so - the USSC took that power in Marbury v. Madison.

That brings us to the Parker case. The named plaintiff, Shelly Parker, lives in the high crime area of DC and has been threatened by thugs and drug dealers. She wants to be able to protect herself and she sued the city government over the gun ban. It’s shocking to realize that in one of the most violent cities in America, a woman is denied the tool that might save her life.

True enough, but Sandy leaves out that her part of the suit was dismissed - it was a security officer who was also one of the plaintiffs who actually won it, a tribute to the attorney who plotted strategy in this case.

Regardless of whether the full DC Circuit Court hears the case en banc, the losing party will certainly appeal to the U.S. Supreme Court.

While I'd like to see that, I don't agree. Of course, the plaintiffs will appeal if they lose. However, the DC gov't will be under enormous pressure from the national anti-gunners to not appeal, because they fear that a declaration that the 2nd protects an individual right is the death knell of gun control (and I believe that to be a correct analysis). Plus, who knows, maybe Stevens will be gone by the time the case gets to the USSC?

Maybe Sandy can explain why the NRA is strongly pushing a Congressional bill that would remove the DC ban - and simultaneously make the Parker case moot? It would seem that the best strategy is to: 1) See what happens in the court(s); and 2) if our side loses, THEN push a bill through Congress to help DC residents. If the votes are there, the votes are there - and perhaps a loss in the USSC would mobilize lots of support to kill gun control via legislation.

Mooting out Parker would be a huge mistake - it is damned near a perfect case, since it involves an actual ban (not mere "reasonable restrictions") on gun ownership, and naturally leads to a decision on the question of whether the right protected by the 2nd is an individual or collective one (and I still don't even understand the concept of a "collective right" that cannot be enforced by any individual through the courts because of lack of standing - but that's another issue). Further, ALL of the plaintiffs in Parker are law-abiding citizens, so there's no chance that a court would rule against them using the reasoning that "it is reasonable to regulate guns so that scumbags like this guy can't get them."

Sandy, get on the phone and tell the NRA to hold off on the DC Personal Protection Act until the courts rule on Parker. To NOT do that, to allow this bill to go forward, it to stick a knife in the heart of efforts to protect our most valuable Constitutional right.