In a blockbuster opinion from the U.S. Court of Appeals for the District of Columbia Circuit, Senior Judge Laurence H. Silberman, joined by Judge Thomas B. Griffith, ruled that “the Second Amendment protects an individual right to keep and bear arms.”
That puts the D.C. Circuit in rather exclusive company. Only the Fifth Circuit, which includes Texas, Louisiana, and Mississippi, has adopted the “individual rights” position; all the other circuits have held that private citizens have no Second Amendment recourse when they challenge state and local gun-control ordinances. Moreover, only the D.C. Circuit has actually invoked the Second Amendment to overturn a government gun regulation. Not even the Fifth Circuit went that far.
The case is Parker v. District of Columbia, and the regulation challenged is a 1976 law banning all handgun registrations, barring pistols already registered from being carried from room to room in the home without a license (which is never granted), and requiring all firearms in the home, including rifles and shotguns, to be unloaded and either disassembled or bound by a trigger lock.
In effect, no one can possess a functional firearm in his home in the District. Never mind that the predator class has no trouble acquiring all the weapons necessary to wreak havoc there.
Before the District banned handguns in 1976, the murder rate had been declining. Soon thereafter, the rate climbed to the highest of all large U.S. cities. During the 31-year life of the D.C. gun ban — with the exception of a few years during which the city’s murder rate ranked second or third — there have been more killings per capita in D.C. than in any other major city.
So, on policy grounds, there’s a compelling argument to be made that D.C. residents deserve an opportunity to defend themselves — especially since Parker deals with the possession of ordinary, garden variety handguns in private residences, not automatic weapons on city streets. But even if the argument were to cut the other way — even if the city could demonstrate (which it emphatically cannot) that more gun laws lead to less crime — this case is not just about policy. It’s about the meaning of the Constitution and, in particular, the militia clause of the Second Amendment.
According to the appellate court, activities protected by the Amendment “are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.”
In other words, the Constitution forecloses an outright ban on handguns. Ergo, if we Americans decide that a ban is required for public safety, we must change the Constitution. We cannot simply ignore the constitutional provision and act as though the document did not exist. That’s a recipe for lawlessness and mob rule. As a nation, we have chosen to have a written Constitution for good reason, and it has served us well for more than two centuries.
None of which suggests that the D.C. government is foreclosed from regulating the use and ownership of firearms. Indeed, Judge Silberman conceded that “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.”
Perhaps, said the court, D.C. could justify concealed-carry restrictions, the registration of firearms, proficiency testing, and no gun possession by felons or minors. But an across-the-board ban on all handguns, in all places, for all residents, isn’t “reasonable.”
In fact, it’s not a regulation at all; it’s an out-and-out prohibition. When America dealt with prohibition of a different sort in 1919, we implemented that ill-advised goal by amending the Constitution. And in that case, the Bill of Rights contained no express provision guaranteeing the right to consume alcoholic beverages.
Respected legal scholars across the political spectrum agree with Judge Silberman, and recognize that the Second Amendment secures an individual right, which can be limited in some circumstances. Harvard’s Alan Dershowitz, a former American Civil Liberties Union board member, says he “hates” guns and wants the Second Amendment repealed. But he condemns “foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right …. They’re courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.”
Harvard’s Laurence Tribe, another well-known liberal scholar, and Yale professor Akhil Amar acknowledge that there is an individual right to keep and bear arms, albeit limited by “reasonable regulation in the interest of public safety.”
Proponents of gun control are not persuaded by such arguments, or even by empirical studies proving that gun control does not work. Nor are they persuaded by the text of the Second Amendment; the history, purpose, and structure of the Constitution; or the intent of the Framers.
In some jurisdictions, the enactment of anti-gun regulations has simply become an article of faith. Regulations persist, and even spread, in the face of compelling legal and policy arguments for their demise.
Yet the right to keep and bear arms is essential to sustain a free society. At long last, after 31 years, the U.S. Court of Appeals has told the D.C. government it may not take that right away.
– Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.Levy is co-counsel to the plaintiffs in Parker v. District of Columbia.