March 29, 2007, 7:00 a.m.
The striking down of the D.C. gun ban may be the beginning of a larger battle.
By Jennifer Rubin
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.
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.”
John McCain argues that he has been a staunch defender of Second Amendment rights. He voted against the Brady Bill in 1993 and the assault-weapons ban in 1994. He previously championed repeal of the now-invalidated D.C. gun ban. In the face of strong NRA opposition, however, McCain did sponsor legislation in 2001 and again in 2003 seeking to close the so-called “gun show loophole” requiring background checks at all gun shows where at least 75 guns were sold. (The issue of ad limitations in McCain-Feingold was further grounds for souring his relationship with the NRA.)
Rudy Giuliani faces the toughest challenge in reaching out to gun-rights advocates. As mayor of New York, he supported measures requiring trigger locks and banning guns within 1,000 feet of schools, and he sued two dozen major gun manufacturers and distributors in 2000. In the wake of the 1993 Long Island Rail Road shooting, he became one of the few prominent Republicans lobbying for a ban on many assault weapons. However, the Parker case may provide him with an opportunity to burnish his Second Amendment credentials. In a written response to an inquiry for this story he explained: “I believe the decision by United States Court of Appeals is correct. I understand the challenges that big cities face from gun violence. But banning people from having handguns in their own homes for self defense is excessive and unconstitutional. It is not a reasonable restriction. It clearly undercuts the Second Amendment, which protects the rights of law abiding individuals to keep and bear arms.” On March 22 on the Sean Hannity radio show, he again reiterated his agreement with Parker. He stated that it “very well described” his view that the Second Amendment protected an individual right to own a gun, that “unreasonable restrictions” should be invalidated, and that gun regulations should be decided on “a state by state” basis.
If none of the Republicans are perfect poster boys for the NRA, what about the Democrats? Charlie Cook notes that they “decided some time ago that if they wanted to win and hold a majority in Congress and the presidency, they were going to have to leave the gun issue alone. It was costing them too much support in the south and border south and among union members nationwide. All but a few Democrats in Congress agree with this strategy, which is why you can look at the Democratic issue agenda and find nothing about guns.” Their greatest fear may be escaping the primaries without inflicting damage on their hopes in November, as Sabato cautions: “If the liberals force Democratic candidates to the left on gun control next winter, then the eventual nominee may pay for it in the fall.” No less than Bill Clinton opined on The Charlie Rose Show after Al Gore’s loss that: “The NRA beat him in Arkansas. The NRA and Ralph Nader stand right behind the Supreme Court in their ability to claim that they put George Bush in the White House.... I think the NRA had enough votes in New Hampshire, in Arkansas, maybe in Tennessee and in Missouri to beat us. And they nearly whipped us in two or three other places.”
There is one Democrat who may be happy to talk about guns, should he manage to wrestle the nomination away from his three better known opponents: Bill Richardson. Last year in his reelection bid, Richardson obtained the NRA endorsement over his Republican challenger. Dwight Van Horn of the NRA said at the time: “He’s been a pretty solid guy on the gun issue.” In its press release the NRA was pleased to tout Richardson’s support for New Mexico’s law allowing residents to carry concealed handguns with a permit. Richardson in the past has proudly remarked that he personally has earned a concealed-carry permit himself. None of this is likely to endear him to the liberal base in the primaries, but it might prove a test of the NRA’s nonpartisanship should he face off in November against a Republican with a less stellar Second Amendment record.
Enjoying the Moment
For now, the NRA is clearly relishing this moment. Chris Cox, executive director of the NRA’s Institute for Legislative Action, is trying to focus public attention on the “human face” of the Parker decision, emphasizing that these D.C. residents were law-abiding citizens denied the right to self-defense in their own homes. He remarks that there is “no clearer indictment” of the theory that gun control will make cities safer than the fact that under the stringent gun ban, D.C. was the “murder capital” of the country in seven of the last nine years. To the chagrin of conservative lawyers, however, Cox indicates continued support of federal legislation to repeal the D.C. gun ban — legislation that would permanently secure home gun-ownership for D.C. residents, but render the Parker case effectively moot.
On a broader level, Second Amendment advocates are hoping to turn the tables in the court of public opinion. In recent years, gun-control advocates have changed the name of their organization (“Handgun Control, Inc.” was abandoned in 2001 in favor of “The Brady Campaign to Prevent Handgun Violence”) and focused on more limited items like waiting-period requirements and limits on multiple-gun sales. Cox argues that NRA should be seen as the “reasonable” group, supporting the right to self defense of law-abiding citizens, while the handgun advocates, despite their emphasis on incrementalist goals, nevertheless wholeheartedly supported the D.C. ban.
To some degree the NRA and its allies have already been winning the war outside the Beltway. Forty-eight states now have laws protecting individual rights to carry concealed weapons. Although each side offers its own polling data, even the January 2007 poll conducted for the Mayors Against Illegal Guns by the bipartisan team of Greenberg Quinlan Rosner Research and The Tarrance Group reveals a combined 58 percent of those polled favor either repealing some existing gun laws or simply enforcing current gun laws without passing new ones.
Conservative legal scholars see this case as potentially harkening a change in the way Americans view the courts and the Constitution. John Yoo of Boalt Law School doubts it will affect those with hardened views on each side but suggests that “the decision may sway moderates who are undecided about gun control, and remind them that the Founding Fathers understood the Bill of Rights to protect the individual right to bear arms.”
Peter Ferrara of the ACRU takes a more philosophical and historical view of the potential long-range implications of the case. He remarks that if Parker is upheld by the Supreme Court, it will “be a big shot in the arm for conservatives” and will demonstrate that “we have had an impact on the courts and on changing the judiciary.” He notes that the effort to achieve recognition of an individual right of gun ownership has been an undertaking of more than fifty years of research, scholarship, and support for conservative judges. He explains that what was once considered a “radical” position — recognition of an individual right to gun ownership — has now attracted support even from liberal scholars like Laurence Tribe and has been accepted by a prominent federal appeals court. Ferrara says that conservatives should remember that these jurisprudential efforts are “not short term fights.” As for the impact on 2008, he reminds conservatives that “this is no time to be discouraged” with at least two justices who could be potentially replaced by the next president.
In that respect, the Parker case may remind the wider conservative base exactly what is at stake in 2008.