Federal Court upholds gun ownership


Richard Moore

Original source URL:

March 10, 2007

Court Rejects Strict Gun Law as Unconstitutional

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 

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 

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 

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 

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 

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/