Category Archives: Gun Laws

Guns In The Nation's Capital

US Supreme Court
US Supreme Court

RESIDENTS IN ONE of the District's most violence-ridden neighborhoods are mostly indifferent to the prospect that handguns could legally return to the city after a 32-year ban. After all, the city is perennially one of the most dangerous in the nation.

"It doesn't seem like it was doing anything anyway," said Norman Day, who lives on Orren Street Northeast in Trinidad. "People can bring [guns] in from anywhere. You can't put up checkpoints everywhere. It probably won't make any difference. If anything, it might save the District some money by not hauling off anybody with a gun."

Many residents in the Ward 5 neighborhood in Northeast—the site of one of the most violent crime sprees in recent city history—have been hardened to the frequent violence and responses by the Metropolitan Police Department. Others saw the ban as the last remaining barrier between occasional violence and all-out chaos.

"That's the worst thing they could ever do," Daphne Potter said at the corner of Oates and Staples streets Northeast. "Most of that shootings come from the young kids. I hate to see what's gonna happen now." Earlier in the day, gun advocates rejoiced outside of the Supreme Court building.

"I'm very pleased with the decision, but at the same time, I am a bit suspicious of the possible restrictions that could come down," said Craig Burgers, 25, a Michigan native now living in Arlington. "You shouldn't have to check your rights to enter the District. I have my gun in my house and I mostly use it for target practice but would definitely use it if someone tried to break in."

In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons."

Ariel Sarousi, a 25-year-old gun owner who moved to Falls Church from his home in Boston a year ago, pointed out that the District has a much higher crime rate than Northern Virginia, which has no such ban.

"You can easily dispute the idea that the ban on guns has decreased crime in the District," he said. Mr. Sarousi said he is much more likely to consider moving into the District now that he is allowed to bring his gun with him.

Well, one thing is a proven fact. DC's stringent, zero tolerance gun ban for the past 30 yrs has none nothing to stop the violent nature of DC's fiercest and at risk citizens. Guns by themselves are not the problem—the culture and violent nature of the people that live in DC are the problem. Change the culture and the violence will subside.

Americans can keep guns at home for self-defense, the Supreme Court ruled Thursday in the justices' first-ever pronouncement on the meaning of gun rights under the Second Amendment.

The court's 5-4 ruling struck down the District of Columbia's ban on handguns. The decision went further than even the Bush administration wanted, but probably leaves most federal firearms restrictions intact.

District of Columbia Mayor Adrian Fenty responded with a plan to require residents of the nation's capital to register their handguns. "More handguns in the District of Columbia will only lead to more handgun violence," Fenty said.

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: "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."

The basic issue for the justices was whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment was adopted. The Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home," Scalia said. The court also struck down Washington's requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns.

Scalia noted that the handgun is Americans' preferred weapon of self-defense in part because "it can be pointed at a burglar with one hand while the other hand dials the police." Scalia's opinion dealt almost exclusively with self-defense in the home, acknowledging only briefly in his lengthy historical analysis that early Americans also valued gun rights because of hunting.

The law adopted by Washington's city council in 1976 bars residents from owning handguns unless they had one before the law took effect. Shotguns and rifles may be kept in homes, if they are registered, kept unloaded and either disassembled or equipped with trigger locks.
The brevity of Scalia's treatment of gun ownership for hunting and sports-shooting is explained by the case before the court. The Washington law at issue, like many gun control laws around the country, concerns heavily populated areas, not hunting grounds. In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons."

He said such evidence "is nowhere to be found."

Justice Stephen Breyer wrote a separate dissent in which he said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Joining Scalia were Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas. The other dissenters were Justices Ruth Bader Ginsburg and David Souter.

Gun rights supporters hailed the decision. "I consider this the opening salvo in a step-by-step process of providing relief for law-abiding Americans everywhere that have been deprived of this freedom," said Wayne LaPierre, executive vice president of the National Rifle Association. The NRA will file lawsuits in San Francisco, Chicago and several of its suburbs challenging handgun restrictions there based on Thursday's outcome.

Chicago mayor Richard Daley said he didn't know how the high court ruling would affect the city, but said that the ruling was "a very frightening decision." He predicted an end to Chicago's handgun ban would spark new violence and force the city to raise taxes to pay for new police. Sen. Dianne Feinstein, D-Calif., a leading gun control advocate in Congress, criticized the ruling. "I believe the people of this great country will be less safe because of it," she said.

The capital's gun law was among the nation's strictest. Dick Anthony Heller, 66, an armed security guard, sued the District after it rejected his application to keep a handgun at his Capitol Hill home a short distance from the Supreme Court. "I'm thrilled I am now able to defend myself and my household in my home," Heller said shortly after the opinion was announced.

The U.S. Court of Appeals for the District of Columbia ruled in Heller's favor and struck down Washington's handgun ban, saying the Constitution guarantees Americans the right to own guns and that a total prohibition on handguns is not compatible with that right.

dcheney
VP Dick Chaney

The issue caused a split within the Bush administration. Vice President Dick Cheney supported the appeals court ruling, but others in the administration feared it could lead to the undoing of other gun regulations, including a federal law restricting sales of machine guns. Other laws keep felons from buying guns and provide for an instant background check.

Thursday's decision was embraced by the president, said White House press secretary Dana Perino. "This has been the administration's long-held view," Perino said. "The president is also pleased that the court concluded that the D.C. firearm laws violate that right." White House reaction was restrained. "We're pleased that the Supreme Court affirmed that the Second Amendment protects the right of Americans to keep and bear arms," White House spokesman Tony Fratto said.

Scalia said nothing in Thursday's ruling should "cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." The law adopted by Washington's city council in 1976 bars residents from owning handguns unless they had one before the law took effect. Shotguns and rifles may be kept in homes, if they are registered, kept unloaded and either disassembled or equipped with trigger locks.

Challenging The DC Gun Law

DC Gun LawsThe following essay was originally published by Robert A. Levy on February 19, 2003. The real news, however, is that the Supreme Court is finally about to rule on the case in the next few days. But, to tide us over in the meantime, here's the background story.

Six District of Columbia residents want to be able to defend themselves in their own homes. To vindicate their rights, on Feb. 10 three local attorneys and I filed a civil lawsuit in a Washington, D.C. federal court.

The litigation, Parker v. District of Columbia, will not be about machine guns and assault weapons. It will be about the right to own ordinary, garden-variety handguns. Nor will the plaintiffs argue for the right to carry a gun outside the home. That's another question for another day.

The D.C. government has done little or nothing to disarm violent criminals; yet it has done a really effective job of disarming decent, peaceable residents. Still, lots of cities and states have restrictive gun laws along with high rates of violent crime. What, then, is unique about the District of Columbia? Why do D.C.'s laws have gun defenders up in arms? First, a little background.

The High Court hasn't decided a Second Amendment case since United States v. Miller in 1939. On that occasion, the challenged statute required registration of machine guns, sawed-off rifles, sawed-off shotguns, and silencers.
In a recent Texas case, United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit held that the Constitution "protects the right of individuals, including those not then actually a member of any militia ... to privately possess and bear their own firearms ... that are suitable as personal individual weapons."

That right is not absolute, said the court. It does, however, establish a powerful presumption against gun control. And to rebut that presumption, government regulators must first identify exceptional factors that justify a limitation on our Second Amendment right. Then government must show that its regulation goes no further than necessary to achieve its aims.

For example, no reasonable person would argue that killers have a constitutional right to possess weapons of mass destruction. Some persons and some weapons may be restricted. Last year, the Ninth Circuit, in Silveira v. Lockyer, rejected a challenge to California's ban on so-called assault weapons. In the Emerson case itself, the Fifth Circuit held that Emerson's Second Amendment rights could be temporarily curtailed because there was reason to believe he posed a threat to his estranged wife. Emerson asked the U.S. Supreme Court to reverse that holding, but the Court decided not to review the case.

The High Court hasn't decided a Second Amendment case since United States v. Miller in 1939. On that occasion, the challenged statute required registration of machine guns, sawed-off rifles, sawed-off shotguns, and silencers.

First, said the Court, "militia" means "the body of the people capable of bearing arms." That suggested a right belonging to all of us, as individuals. But the Court also held that the right extended only to weapons rationally related to the militia—not the sawed-off shotgun questioned in Miller. That mixed ruling has puzzled legal scholars for more than six decades. If military use is the decisive test, then citizens can possess rocket launchers and missiles. Obviously, that's not what the Court had in mind. Indeed, anti-gun advocates, who regularly cite Miller with approval, would be apoplectic if the Court's military-use doctrine were logically extended.

Because Miller is so murky, it can only be interpreted narrowly, allowing restrictions on weapons, like machine guns and silencers, with slight value to law abiding citizens, and high value to criminals. In other words, Miller applies to the type of weapon, not to the question whether the Second Amendment protects individuals or members of the militia. That's the conclusion the Fifth Circuit reached in Emerson. It found that Miller upheld neither the individual rights model of the Second Amendment nor the collective rights model. Instead, Miller simply decided that the weapons at issue were not protected, whether used individually or collectively.

For starters, no handgun can be registered in D.C. Even those pistols registered prior to the District's 1976 ban cannot be carried from room to room in the home without a license. Moreover, all firearms in the home, including rifles and shotguns, must be unloaded and either disassembled or bound by a trigger lock. In effect, no one in the District can possess a functional firearm in his or her own residence.
Enter U.S. Attorney General John Ashcroft. First, in a letter to the National Rifle Association, he "reaffirmed a long-held opinion" that all law-abiding citizens have an individual right to keep and bear firearms, clearly protected by "the text and the original intent of the Second Amendment."

Ashcroft noted that early Supreme Court decisions "routinely" recognized an individual right, as had U.S. attorneys general of both parties prior to Miller. Ashcroft's letter was followed by the Justice Department's brief to the Supreme Court in the Emerson case. For the first time, the federal government argued in formal court papers that the Second Amendment "broadly protects the rights of individuals, including persons who are not members of any militia ... subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."

Despite that pronouncement, the Ashcroft Justice Department declared that Emerson was correctly decided. A restriction on persons subject to a domestic violence restraining order was a reasonable exception to Second Amendment protection. That's roughly the position of an impressive array of legal scholars, including Harvard's liberal icon, Laurence Tribe, and Yale's highly respected Akhil Amar, who agree on two fundamental issues: First, the Second Amendment confers an individual rather than a collective right. Second, that right is not absolute; it is subject to reasonable regulation. To the extent there's disagreement, it hinges on what constitutes reasonable regulation; that is, where to draw the line. That's why D.C.'s handgun ban is so interesting—and so vulnerable.

For starters, no handgun can be registered in D.C. Even those pistols registered prior to the District's 1976 ban cannot be carried from room to room in the home without a license. Moreover, all firearms in the home, including rifles and shotguns, must be unloaded and either disassembled or bound by a trigger lock. In effect, no one in the District can possess a functional firearm in his or her own residence. The law applies not just to "unfit" persons like felons, minors, or the mentally incompetent, but across-the-board to ordinary, honest, responsible citizens.

Roughly three dozen challenges to the D.C. law have already been filed—but mostly by criminals who are serving longer sentences because their crimes included gun possession. This case is different. The lead plaintiff, Shelly Parker, resides in a high-crime neighborhood and is active in community affairs. As a result of trying to make her neighborhood a better place to live, Ms. Parker has been threatened by drug dealers. She would like to possess a functional handgun within her home for self-defense, but fears arrest, prosecution, incarceration and fine because of D.C.'s unconstitutional gun ban.

But the District of Columbia says that if someone breaks into their houses, their only choice is to call 911 and pray that the police arrive in time. That's not good enough. The right to keep and bear arms includes the right to defend your property, your family and your life. No government should be permitted to take that right away.
A second plaintiff is a Special Police Officer who carries a handgun to provide security for the Thurgood Marshall Judicial Center. But when he applied for permission to possess a handgun within his home, the D.C. government turned him down. Other plaintiffs include a gay man who was assaulted in another city on account of his sexual orientation, but was able to ward off the attacker with a handgun.

Quintessentially, a handgun is a personal weapon, used by citizens to defend themselves against criminal predators. It is not a weapon like the sawed-off shotgun barred in Miller. If "reasonable" regulations are those that prohibit bad persons from possessing massively destructive firearms, then the District's blanket prohibitions are patently unreasonable. "Some gun laws—Washington's notably among them—sweep more broadly than any individual right can reasonably be read to permit," said the Washington Post in an Aug. 5, 2002 editorial.

Just as important, Congress has plenary legislative authority over the nation's capital. That means the D.C. government, a creature of Congress, is constrained no less than the federal government itself by the Second Amendment. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But unlike most of the other 10 amendments, the applicability of the Second Amendment to the states has not been resolved. Yet because Washington, D.C. is not a state and is controlled by Congress, that complex, widely debated question need not be addressed when D.C. law is challenged on Second Amendment grounds.

Finally, felonies under D.C. law are prosecuted by the U.S. Attorney for the District of Columbia, an employee of the Justice Department—the same Justice Department that is now on record favoring an individual rights theory of the Second Amendment. To be sure, Ashcroft declared in an internal memorandum that the Justice Department "will continue to defend the constitutionality of all existing federal firearms laws." But D.C. law, although enacted pursuant to congressional delegation, is not federal law.

Naturally, D.C. law must comply with the U.S. Constitution, and the federal courts are the ultimate authority on the meaning of that document. Sixteen years ago, a local court in D.C. held that "the Second Amendment guarantees a collective rather than an individual right." That precedent, however, is not binding in D.C.'s federal court, which has not yet resolved its theory of the Second Amendment.

Soon, the court will have an opportunity to do so. The six plaintiffs in Parker v. District of Columbia are asking a federal judge to prevent D.C. from barring the registration of handguns, banning the possession of functional firearms within the home, and forbidding firearms from being carried from room to room without a license. The plaintiffs live here, pay their taxes here, and obey the laws. But the District of Columbia says that if someone breaks into their houses, their only choice is to call 911 and pray that the police arrive in time. That's not good enough. The right to keep and bear arms includes the right to defend your property, your family and your life. No government should be permitted to take that right away.

  • Robert A. Levy is a senior fellow in constitutional studies at the Cato Institute.