Original source URL: http://www.nytimes.com/2007/03/10/washington/10gun.html March 10, 2007 Court Rejects Strict Gun Law as Unconstitutional By ADAM LIPTAK Interpreting the Second Amendment broadly, a federal appeals court in Washington yesterday struck down a gun control law in the District of Columbia that bars residents from keeping handguns in their homes. The decision was the first from a federal appeals court to hold a gun control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to the collective rights of state militias. Nine other federal appeals courts around the nation have rejected that interpretation. Linda Singer, the District¹s acting attorney general, said the decision was ³a huge setback.² ³We¹ve been making progress on bringing down crime and gun violence,² Ms. Singer said, ³and this sends us in a different direction.² By contrast, advocates of gun rights praised the decision, by the United States Court of Appeals for the District of Columbia Circuit, saying it raised the prospect of a national re-evaluation of the meaning of the Second Amendment and the rights of gun owners. They said the District of Columbia would have to begin procedures to allow handgun possession in private homes unless yesterday¹s decision was stayed. Lawyers on both sides of the case said it had created a conflict among the federal courts of appeal on a significant constitutional issue, making review by the Supreme Court likely. The Supreme Court last considered the issue in 1939, and there are only scattered hints about how the current justices might rule. The majority in yesterday¹s decision pointed to a 1998 dissent in which ³at least three current members (and one former member) of the Supreme Court have read Œbear arms¹ in the Second Amendment to have meaning beyond mere soldiering.² They were former Chief Justice William H. Rehnquist, who died in 2005, and Justices Ruth Bader Ginsburg, Antonin Scalia and David H. Souter. In a 1996 dissent while serving on the federal appeals court in Philadelphia, Judge Samuel A. Alito Jr., now a justice of the Supreme Court, wrote that he would have struck down a federal law regulating the possession of machine guns under the commerce clause of the Constitution. If the Supreme Court were to adopt the District of Columbia Circuit¹s interpretation of the Second Amendment, gun control laws and gun prosecutions around the country could be endangered. The case decided yesterday was brought by Dick Heller, a guard at the Federal Judicial Center who was permitted to carry a gun on duty and wanted to keep one at home. His application was denied by officials in the District of Columbia. Mr. Heller challenged provisions of the District¹s law, one of the most restrictive in the nation, that almost always banned the registration of handguns, that prohibited carrying handguns without a license even from one room of a home to another and that required lawfully owned firearms to be kept unloaded and disassembled or bound by a trigger lock. In a 2-to-1 decision, a panel of the District of Columbia Circuit court ruled those provisions unconstitutional. The decision relied on what has so far been a minority interpretation of the Second Amendment, though one that has been embraced by the Justice Department in the current administration and by some constitutional scholars. The Second Amendment says, ³A 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.² The basic question in the case was whether the first clause in the amendment limits the last one. Most federal appeals courts have said that the amendment read as a whole protects only a collective right of the states to maintain militias. In yesterday¹s decision, the majority focused on the final clause, saying that the amendment broadly protects the rights of individuals to own guns. ³It seems passing strange,² Judge Laurence H. Silberman wrote for the majority, ³that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as ŒCongress shall make no law disarming the state militias¹ or Œstates have a right to a well-regulated militia.¹ ² The United States Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, also embraced the individual-rights view of the Second Amendment in 2001. But it did so in an aside in a ruling that allowed a gun prosecution to go forward. By contrast, said Robert A. Levy, a senior fellow at the Cato Institute and one of Mr. Heller¹s lawyers, ³the D.C. opinion is unequivocal.² In a statement on its Web site, the National Rifle Association called the decision a significant victory that ³affirmed that the Second Amendment of the Constitution protects an inherent, individual right to bear arms.² The immediate consequence of the decision, Mr. Levy said, is that ³D.C. will have to implement a process for enabling people to keep handguns in their houses.² Speaking to reporters yesterday, Mayor Adrian M. Fenty said the District was reviewing both the impact of the decision and the next steps it would take in the litigation. ³Today¹s decision flies in the face of laws that have helped decrease gun violence in the District of Columbia,² Mr. Fenty said at a news conference. ³We intend to do everything in our power to get this decision overturned.² Ms. Singer said it was small comfort that the decision, if not the potential sweep of its reasoning, was limited to guns in the home. ³They¹re often dangerous in the home,² she said. ³Kids can be injured. And they often don¹t stay at home.² Judge Silberman, writing for the majority yesterday, said the decision¹s reasoning still allowed ³reasonable restrictions² on the ownership and use of guns, and he gave some examples. It is ³presumably reasonable,² he wrote, to prohibit drunks from carrying weapons and to ban guns in churches and polling places. Judge Thomas B. Griffith joined the majority decision. Judge Silberman concluded that the Second Amendment protects an individual right just as the First Amendment protects free speech and the Fourth Amendment bars unreasonable searches. The majority rejected the District¹s argument that the Second Amendment should apply only to the kinds of guns in use at the end of the 18th century. Lawyers on both sides of the issue say the Supreme Court¹s 1939 decision on the Second Amendment supports their views. Judge Silberman wrote that the decision, United States v. Miller, ³did not explicitly accept the individual-right position² but did implicitly assume it. In dissent, Judge Karen L. Henderson said the Miller decision unambiguously declared, in her words, that ³the right of the people to keep and bear arms relates to those militia whose continued vitality is required to safeguard the individual states.² Judge Henderson added that the District of Columbia is not a state, meaning that the Second Amendment does not apply to it. Judge Silberman was appointed by President Ronald Reagan, Judge Henderson by the first President George Bush and Judge Griffith by the current President Bush. For many decades and under both Democratic and Republican administrations, the Justice Department said the Second Amendment protected only collective rights. The Bush administration reversed that longstanding position, saying the amendment protects the gun ownership rights of individuals, subject to a few restrictions. Patricia Riley, a Justice Department official in the office of the United States attorney in the District, said yesterday that her office was ³studying the decision and analyzing its effect on gun prosecutions.² Copyright 2007 The New York Times Company -- -------------------------------------------------------- Escaping the Matrix website http://escapingthematrix.org/ cyberjournal website http://cyberjournal.org Community Democracy Framework: http://cyberjournal.org/DemocracyFramework.html subscribe cyberjournal list mailto:•••@••.••• Posting archives http://cyberjournal.org/show_archives/
