D.C. gun law declared unconstitutional
By Linda Bentley | July 5, 2008
WASHINGTON, D.C. – The U.S. Supreme Court issued its much anticipated decision last Thursday when it concluded the 32-year old Washington D.C. handgun ban was unconstitutional.
On June 26, 2008, the U.S. Supreme Court affirmed the judgment of the appeals court that the Second Amendment protects an individual’s right to possess firearms and the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional, violated that right.
The majority opinion was delivered to the court by Justice Antonin Scalia, with Chief Justice John G. Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Samuel Anthony Alito, Jr. joining.
The four remaining justices joined in two dissenting opinions, arguing the right to bear arms is a right granted solely to members of a militia, not an individual right.
Pointing out the Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause, Scalia wrote, “The former does not limit the latter grammatically, but rather announces a purpose.”
Although the structure of the Second Amendment is unique in the Constitution, Scalia cited other legal documents of the founding era commonly included prefatory statements of purpose.
He said the first salient feature of the operative clause is that it codifies a “right of the people,” as he referred to the use of the phrase “right of the people” in the First Amendment’s Assembly-and-Petition Clause, the Fourth Amendment’s Search-and-Seizure Clause and similar terminology in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Scalia said, “All three of these instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body.”
In a footnote, Scalia wrote, “Justice Stevens is of course correct … the right to assemble cannot be exercised alone, but it is still an individual right and not one conditioned upon membership in some defined ‘assembly,’ as he contends the right to bear arms is conditioned upon membership in a defined militia.”
Noting there were few laws in the history of our nation that have come close to the severe restrictions of the District’s handgun ban, Scalia stated the District’s ban on handgun possession, along with its mandate that any lawful firearm in the home be rendered inoperable, was unconstitutional.
In conclusion, he said, “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many … who believe that prohibition of handgun ownership is a solution.”
While the Constitution avails the District of a variety of means for combating that problem, Scalia said the “enshrinement of constitutional rights” takes certain policy choices off the table, including the absolute prohibition of handguns held and used for self-defense in the home.
And last, addressing those who believe the Second Amendment is outmoded in a society where well trained military or police provide for personal security and where gun violence is a serious problem, Scalia wrote, “That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct.”
It’s been five years since six District of Columbia residents, Shelly Parker, Tracey Ambeau, Tom G. Palmer, and George Lyon, who wanted to possess handguns in their respective homes for self-defense; Gillian St. Lawrence, who owned a registered shotgun he wished to keep assembled and unhindered by a trigger lock or similar device; and finally Dick Anthony Heller, a special District police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, who wished to possess one at his home, filed a complaint in U.S. District Court because the District’s gun ban prohibited each from doing so.
The Second Amendment provides: “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.”
In March 2004, U.S. District Court Judge Emmet G. Sullivan dismissed the complaint, rejecting “the notion that there is an individual right to bear arms separate and apart from service in the Militia.”
Sullivan stated, “While plaintiffs extol many thought-provoking and historically interesting arguments for finding an individual right, this court would be in error to overlook 65 years of unchanged supreme court precedent and the deluge of circuit case law rejecting an individual right to bear arms not in conjunction with service in the Militia.”
Plaintiffs appealed, asserting they had a right to possess “functional firearms;” meaning firearms that were “readily accessible to be used effectively when necessary” for self-defense in the home.
The court of appeals, in a 2-1 decision, overturned the district court’s ruling, stating, “Once it is determined – as we have done – that handguns are ‘arms’ referred to in the Second Amendment, it is not open to the District to ban them … the Second Amendment’s premise is that guns would be kept by citizens for self-protection (and hunting).”
Whereas Heller challenged the provisions of the law that banned moving a handgun from one room to another in one’s own home, the court agreed, just as the District could not flatly ban the keeping of a handgun in the home, preventing it from being moved throughout one’s house “would negate the lawful use upon which the right was premised …”
Frowning on the District’s requirement that a registered firearm be kept “unloaded and disassembled or bound by a trigger lock or similar device, unless such a firearm is kept at a place of business, or while being used for lawful recreational purposes …” the court said, “This provision bars Heller from lawfully using a handgun for self protection in the home because the statute allows only for use of a firearm during recreational activities.”
It also agreed with Heller’s assertion that the D.C. law basically reduced a pistol to a useless hunk of “metal and springs” and that he was entitled to the possession of a “functional” firearm to be employed in case of a threat to life or limb.
The district court believed a judge would “likely give the statute a narrowing construction” when confronted with a self-defense justification.
The appeals court responded by saying, “That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right.”
Reversing the district court’s decision, the case was remanded with an order to grant summary judgment in favor of Heller, citing the restriction amounted to a complete prohibition of the lawful use of handguns for self-defense and was therefore unconstitutional.