September 28, 2007
PARKER V. DISTRICT OF COLUMBIA
By: Veronica Rose, Principal Analyst
You asked about the status of Parker v. District of Colombia.
In Parker v. District of Columbia, a three-judge panel of the U.S. Court of Appeals for the District of Columbia voted two-to-one to strike down parts of the District's gun control law as unconstitutional on Second Amendment grounds. The provisions at issue (1) ban handgun ownership, with exceptions for active and retired law enforcement officials and people who registered their handguns before 1976; (2) prohibit carrying handguns anywhere, including in one's home, without a license; and (3) require all lawfully owned firearms, including long guns, to be stored locked, unloaded, or disassembled.
Plaintiffs, who are not members of a militia, asserted their right to keep a handgun or assembled long gun in their home for self protection. The Appeals Court ruled that the Second Amendment “protects an individual right to keep and bear arms.” In doing so, the Court reversed the lower court's ruling that the Second Amendment does not bestow any rights on individuals to bear arms except, perhaps, when an individual serves in an organized militia such as the National Guard.
The District petitioned for a rehearing before the full Court of Appeals on the grounds that, among other things, the ruling created “inter- and intra-jurisdiction decisional conflicts. The Court denied the motion to reconsider. Only one other federal appeals court (the 5th Circuit Court in New Orleans) has recognized an individual's right to own guns, and it nevertheless upheld the federal gun control law at issue (United States v. Emerson 5th Cir. 2001, cert. denied (2001)). Nine other circuit courts have ruled against the individual right to bear arms.
Both the plaintiffs and defendants have petitioned the U.S. Supreme Court to review the case. The Supreme Court has not yet indicated whether it will take the case, but experts generally believe it will do so because of the conflicting federal circuit court rulings and the major constitutional issue involved. The District's law remains in effect during the appeals process. If the Supreme Court refuses to take the case, the lower court ruling overturning the District's law would go into effect. The Appeals Court ruling affects only the District, but it may have implication for gun control laws in other states.
Firearms Control Regulations Act
The District of Columbia's 1975 Firearms Control Regulations Act severely restricts firearm ownership and possession. Among other things, the act (1) makes it illegal for anyone to own or possess handguns unless he or she is a police officer or registered the gun before 1976; (2) requires anyone carrying handguns anywhere, including at his or her home, place of business, “or any other land possessed by the person” to have a license; and (3) requires all guns, including long guns, to be stored “unloaded, disassembled, or bound by a trigger lock or other similar device” (D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02).
In Parker v. District of Colombia, six D.C. residents challenged these provisions under the Second Amendment to the United States Constitution, which states that “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” (U.S. Cons. Amend. II). The plaintiffs claimed the right to possess “functional” firearms, including handguns, for self-defense in their homes and sought an order permanently enjoining the District from enforcing the above provisions.
The District Court dismissed the complaint, rejecting “the notion that there is an individual right to bear arms separate and apart from service in the Militia” and concluding that “because none of the plaintiffs have asserted membership in the Militia, plaintiffs have no viable claim under the second Amendment of the United States Constitution” (Parker v. District of Columbia, 311 F. Supp. 2d 103, 109-10 (D.D.C. 2004). The plaintiffs appealed.
Appeals Court Ruling
On March 9, 2007, a three-judge panel of the U.S. Appeals Court for the District of Colombia Circuit voted two-to-one to strike down parts of the law as unconstitutional (Shelly Parker, et al. v. District of Columbia, 478 F3d 370, D.C. Cir. 2007). The Court ruled that the Second Amendment “protects an individual right to keep and bear arms” and that “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 Court concluded that:
the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects 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 (id.at p. 395).
The ruling made it the first federal appeals court to strike down a gun control law on Second Amendment grounds.
In April 2007, the District and Mayor Adrian Fenty petitioned the full Court of Appeals to rehear the case. According to the petition (p. 2), the District was appealing the ruling because:
[t]he panel majority's decision conflicts with a decision of the Supreme Court, because the decision creates inter- and intra-jurisdiction decisional conflict, and because the proceeding involves questions of exceptional importance. In holding that the District's longstanding laws governing firearms possession are unconstitutional, the divided panel adopted readings of the Second Amendment and Supreme Court precedent that are contrary to those of nearly every other federal court of appeals, as well as the highest local court in this jurisdiction, and thereby created a clear conflict on the constitutional issues of fundamental importance. The decision marks the first time in the Nation's history that a federal court of appeals has struck down a law as unconstitutional under the Second Amendment (copy of petition attached and also available at http://www.dcwatch.com/issues/gun070409.htm).
On May 8, 2007, the Court denied the request to rehear the case, by a 6-4 vote. Both the defendants and plaintiffs have petitioned the Supreme Court to review the case.