A D.C. circuit court threw out the District of Columbia’s three-decades-old gun ban on Friday. In the wake of the Parker v. District of Columbia ruling, National Review Online asked a group of Second Amendment experts to assess its legal and political significance.
When discussing with my wife the Supreme Court justices’ possible reaction to the Parker case, she observed that “it would be really exciting if they followed the Constitution.” Indeed! But I predict they won’t hear the case. True, the federal circuits now disagree about the original meaning of the Second Amendment. But there is no “circuit split” on the constitutionality of either the D.C. statute or a comparable federal statute banning all hand guns. The constitutionality of state statutes, such as have been upheld in other circuits, is complicated by the need to apply the Fourteenth Amendment, so those precedents are legally distinct. Further, because Solicitor General Paul Clement may well agree with the majority’s interpretation of the Second Amendment, as does the current Justice Department, he may oppose granting Cert. Given that even liberal justices have long ducked this issue in the past, it would be very risky for them to take it up now that the Court is more conservative, textualist, and originalist. Of course, the case could be reversed en banc by the D.C. Circuit, but again I doubt it. Unlike the protection of an unenumerated right that makes judicial conservatives nervous — like the right to life at issue in Abigail Alliance — the proposition that the Second Amendment protects an enumerated individual right applicable to the federal government unites originalist-inclined judges, whether conservative or libertarian. Moreover, that Judge Silberman is highly respected, his opinion is powerfully reasoned, and the dissenting opinion is astonishingly weak, all argue against an en banc review. But wouldn’t it be exciting if . . . ?
– Randy E. Barnett is Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center.
John C. Eastman
For the better part of a century, the Second Amendment has been the poor stepchild of the Bill of Rights, almost as infrequently litigated as the Third Amendment’s prohibition on the quartering of troops. And the rights revolution that took hold in the 1960s, finding rights to all sorts of things not explicit in the Constitution, completely ignored the Second Amendment’s explicit right to keep and bear arms.
Last Friday, that changed. The D.C. Circuit, in an opinion written by Judge Silberman, held that the Second Amendment actually protects a personal right to keep firearms in one’s home for purposes of self defense. Almost every federal circuit court of appeals has now weighed in on the subject, so it is hard to imagine how the split of opinion that has now developed is not finally headed to the Supreme Court.
Judge Silberman knows that, of course, so his opinion is a masterful treatise on the subject. More than just a provision of the Bill of Rights, Judge Silberman rightly recognizes that the Second Amendment, like its sister amendments, does not confer a right but rather recognizes a natural right inherent in our humanity. In this, he is following no less an authority than the Declaration of Independence, which recognizes the “right of the people” to alter or abolish their government whenever it becomes destructive of the ends for which it was legitimately organized, namely, the securing of unalienable rights. So the Second Amendment protects not just self-defense, but also the right to throw off tyranny, if that becomes necessary. Mr. Jefferson will now join Mr. Madison on this trip to the Supreme Court—let’s hope the distinguished justices hear them well.
– John C. Eastman is interim associate dean of administration and Henry Salvatori Professor of Law & Community Service at Chapman University’s School of Law and director of the Claremont Institute’s Center for Constitutional Jurisprudence.
Wayne LaPierre, the executive vice president of the National Rifle Association, called the ruling “a crack in the door for residents in the District of Columbia to join the rest of the country in enjoying full constitutional freedom.” I think that’s an accurate statement. The District plans on appealing this ruling, so it’s too early to declare the return of the 2nd Amendment to Washington, D.C., but it is a major step forward.
From a political standpoint, Friday’s ruling may have an impact on legislation in the Senate. I think many people around the country were unaware of how draconian D.C.’s gun ban really is until they heard of the decision last week. It’s likely that we’ll soon see the introduction of a bill in the Senate to repeal the District’s gun prohibition, and the increased awareness of the gun laws in D.C. could make this a high-priority, high-visibility piece of legislation for months to come.
– Cam Edwards is host of Cam and Company on NRAnews.com.
If gun prohibitionists’ reactions to Parker are any indication — and they are — the decision’s legal implications will be profound. Parker poses no threat to the government’s ability to regulate firearms in ordinary fashion. Children may still be barred from accessing guns, and instant criminal background checks for gun purchases are likely here to stay. But gone are the prospects for broad gun bans, as well as the gun “control” program of incremental regulatory harassment of the right to arms to the point of rendering the right impossible to exercise. After Parker, asserting a policy preference against gun ownership will not suffice. Gun regulations can no longer be adopted without consideration of the individual right.
The laws struck down in Parker are not politically viable in this country. Gun prohibitionists shield their mission with euphemisms such as “common sense gun control,” because most people agree with the generalized notion that governments have some means of regulating guns. But if the D.C. laws’ actual details are explained to voters, they will reject anyone who thinks such laws reflect “common sense.” Parker deprives gun prohibitionists of their “common sense” veneer by compelling them to defend the indefensible. Successful politicians will distance themselves accordingly.
– Alan Gura is the lead counsel for the plaintiffs in Parker v. District of Columbia.
Although Parker is unlikely to lead to very many gun laws being declared unconstitutional in the next few years, the long-term effect will help shape the rights consciousness of the American public. The more that the right to arms is discussed in schools, the media, and elsewhere as a genuine, meaningful right, the more that public opinion (and, eventually, judicial opinion) will turn against repressive but non-prohibitory gun laws.
The American gun-prohibition movement will have to rely more heavily on non-American assets. For example, last August, a subcommission of the United Nations Human Rights Council announced that all nations were required by international human rights law to enact severe gun controls — so severe that the current laws of New York City and Washington, D.C. (for long guns) are not sufficiently repressive. The international Arms Trade Treaty currently being created by the United Nations may provide a major opportunity.
In light of how enthusiastically President Bill Clinton’s administration supported earlier stages of U.N. gun control, it is likely that any Democratic administration (except, perhaps, one led by President Bill Richardson) would take advantage of the many ways in which international law can be imported into the United States without need for legislative approval.
– Dave Kopel is research director of the Independence Institute.
John R. Lott Jr.
For several decades, D.C.’s gun ban has served an important educational purpose. With the nation’s strictest gun-control laws, gun-control advocates have been embarrassed that the city has frequently had the highest murder rate of any large city in the U.S. This was hardly the case prior to the ban. Yet, the D.C. Circuit Court striking down the ban will prove just as embarrassing because the long predicted surge in violent crime will not occur.
Surely the ban cannot be blamed for all the District’s crime problems. The police department has had severe problems over hiring standards as well as management and morale issues.
But the long-term changes in crime rates before and after the ban are difficult to ignore. In the five years before Washington’s ban in 1976, the murder rate fell from 37 to 27 per 100,000. In the five years after it went into effect, the murder rate rose back up to 35. During this same time, robberies fell from 1,514 to 1,003 per 100,000 and then rose by over 63 percent, up to 1,635. The five-year trends are not some aberration. In fact, while murder rates have varied over time, during the 30 years since the ban, the murder rate has only once fallen below what it was in 1976.
D.C.’s experience strongly suggests that gun bans disarm only law-abiding citizens while leaving criminals free to prey on the populace.
If the Supreme Court affirms the ruling that invalidated D.C.’s ban on keeping handguns in the home, the direct effects on people’s lives will be modest. Assuming the Second Amendment holding is extended to cover state as well as federal laws, a few other cities with similar restrictions will have to give their citizens a little of their freedom back. But the courts will undoubtedly continue to uphold the vast majority of less restrictive gun regulations. And the potentially most controversial issues — such as sharp restrictions on the right to carry guns outside the home — might not be resolved definitively for a very long time.
A ruling that instead upheld the D.C. statute would send a chilling message about the current Supreme Court. If D.C.’s draconian statute is considered constitutional, it’s hard to imagine how the Second Amendment could have any meaning at all. Furthermore, this is an area with virtually no constraining precedents, so the Justices won’t have the usual excuse for ignoring the Constitution. Legally, this is a very easy case, and the Court can go wrong only if it uses sophistry to paper over a surrender to political correctness. If that happens, we’ll lose more than the Second Amendment.
– Nelson Lund is the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law.
I subscribe to the currently unfashionable view that the Founding Fathers envisioned a sea of liberty with islands of government power — not the reverse. It is my hope that the Parker lawsuit will not only vindicate the right of law-abiding citizens to possess functional firearms in their homes, but that it will remind conservatives, in particular, about the excesses of majoritarianism and the critical role of judges in combating it.
As a constitutional litigator, I am troubled by the ascendancy of so-called “judicial minimalism” among both liberal and conservative jurists. Following the Supreme Court’s appalling Kelo decision, for example, it was dismaying to see conservative bloggers like Jonathan Adler and John Hinderaker (and even the iconic Judge Alex Kozinski) supporting the liberal justices’ view that courts should interpret the public use clause of the Fifth Amendment as imposing no meaningful limits on government’s power to redistribute private property.
In federal courts today, there is a presumption of government power, not liberty. I think that’s exactly backwards. Many conservatives will embrace Parker because it vindicates a freedom they hold dear. If it reacquaints them with the important role of judges in protecting liberty and containing government power, so much the better.
– Clark Neily is an attorney at a Washington, D.C.-area public interest law firm. In his private capacity he is co-counsel for the plaintiffs in Parker v. District of Columbia.