Monday, March 19, 2007

The U.S. Court of Appeals for the District of Columbia Circuit upheld a constitutional right of individuals to keep handguns suitable for militia duty in the home under the Second Amendment in Parker v. District of Columbia (March 9, 2007). Writing for a 2-1 panel majority, Judge Laurence Silberman convincingly demonstrated that any other conclusion would require flouting language carefully chosen by the Founding Fathers and the Second Amendment’s self-defense purposes. His opinion sets a standard of constitutional interpretation to which the wise and honest may repair.

The usual suspects raced to insinuate Parker would fuel more inner-city violence and would hamstring legislatures in fashioning effective gun control measures. But the alarmists are wrong. A Kalishnikoff or AK-47 culture is not on the horizon. Judge Silberman left ample room for reasonable handgun regulation in the name of public safety, for example, prohibiting ownership by felons or the carrying of firearms concealed or in public places.

D.C. residents brought suit to challenge the constitutionality of D.C. Code provisions that prohibited handguns in the home and required all lawfully owned firearms to be kept unloaded and disassembled or bound by a trigger lock or similar device. The plaintiffs desired handguns for self-defense. The Parker ruling sustained their Second Amendment claim.

The amendment declares: “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.” It was ratified in part to answer Antifederalist critics of the Constitution who worried over the absence of an express enumeration of individual rights. That had been a venerated British tradition. The English Bill of Rights of 1689 was emblematic. Among other things, it stipulated “[t]hat the Subjects, which are Protestants, may have Arms for their Defense, suitable to their conditions, as allowed by law.”

Every provision of the Bill of Rights (but the tautological Tenth Amendment’s demarcation between state and federal power) protects individual rights. The First Amendment, for example, guarantees an individual right to free speech. The Fourth Amendment safeguards an individual right against unreasonable searches and seizures. It would confound the manifest intent of the Bill of Rights to exclude an individual right to possess arms for private use from the Second Amendment’s ambit. That conclusion is confirmed by its purposes: namely, to enable private defense against lawless individuals and to resist a tyrannical government.

The District of Columbia maintained that the amendment should protect only organized state militias of the Founding era from congressional encroachments and a right to bear arms in connection with performing militia service. Since state militias are now defunct, the District in essence argued that the Second Amendment is obsolete and places no limitations on banning firearms.

But as Judge Silberman underscored, if that were the intent of the Framers, the Second Amendment would have been rewritten to provide: “Congress shall make no law disarming state militias” or “States have a right to a well-regulated militia.” Further, the right to “keep” arms celebrated in the amendment is distinct from the right to “bear” arms in conjunction with militia service. The Framers were not clumsy or inarticulate writers.

In addition, the Second Amendment broadly conceived the term “militia” to include all males physically capable of acting in concert for the common defense and who were enrolled for military discipline. Protecting an individual right to keep and bear arms suitable for militia service harmonizes with ensuring that the militia could serve when summoned to duty. In other words, the individual right complements the collective right of state governments to preserve and arm their militias.

All constitutional rights, including the right to keep and bear arms, are subject to reasonable restrictions. The First Amendment, for instance, tolerates time, place and manner restrictions on protected expression. Obscenity, child pornography and fighting words may be punished.

The Second Amendment is no different. Nothing in Parker casts a cloud over prohibiting firearms in churches, schools, workplaces or public places to promote the government’s interest in domestic tranquility. Neither does the precedent undercut laws requiring proficiency testing or forbidding firearms to criminals, the insane, the inebriated or the mentally unstable.

The District of Columbia’s undiscriminating prohibition of handguns, however, was a prohibition, not a balanced regulation that gave breathing space to the Second Amendment. If Parker garners review in the United States Supreme Court, the odds would highly favor its affirmation. But the vast majority of gun control laws would remain undisturbed.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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