Which laws are at issue in this case?
At issue in this case are three Washington, D.C. laws that prohibit law-abiding citizens from possessing ordinary, functional firearms like pistols and shotguns in their homes for lawful self-defense.
1. Washington, D.C. requires that all guns be registered, but has forbidden handguns from being registered for over 30 years. This amounts to a complete ban on the possession of handguns in Washington, D.C.
2. Washington, D.C. requires that even if one happens to have a legally registered handgun, dating from 1976 or earlier, the gun cannot be moved from room to room within one’s home without a special permit. And permits are not available.
3. Washington, D.C. requires that all firearms, including pre-ban handguns and lawfully registered rifles and shotguns, be unloaded and either disassembled or bound by a trigger lock at all times while kept at home. The law exempts guns at a place of business, or while the gun is used for recreational shooting, which doesn’t exist in Washington. But there is no exemption for having a functional firearm inside the house, even if someone inside is under attack by criminals. In other words, all functional firearms are banned from the homes of law-abiding Washingtonians.
Washington, D.C. has a number of other extreme and ineffective gun laws, but these three are the most obviously unconstitutional.
What was the holding of the U.S. Court of Appeals for the District of Columbia Circuit?
The court held that the Second Amendment protects an individual right to keep and bear arms. The court struck down Washington, D.C.’s gun ban because it violates that right. The decision is available here.
What is the status of the case now?
On September 4, 2007, Mayor Fenty and the District of Columbia filed their cert petition in the U.S. Supreme Court. The petition is somewhat unusual in that it devotes relatively little space to explaining why the Court should accept the case (i.e., the split of authority among lower courts) and much more time trying to reinvent the law as a simple handgun ban (which it isn’t) and arguing that preventing law-abiding citizens from owning handguns saves lives (which it doesn’t). In reality, D.C. law plainly forbids the possession of all functional firearms within the home, not just handguns. Thus, D.C. Code § 7-2507.02 provides that “any firearm” in the home must be kept unloaded and either disassembled or bound by a trigger lock at all times. There is no exception for self-defense. The District’s assertion that it does not “construe” that provision “to prevent the use of a lawful firearm in self-defense” (meaning properly registered shotguns and rifles) is a rather obvious ploy by its lawyers to recast the case as a involving a simple handgun ban, which is quite misleading. Of course, even if it were true that D.C. only outlawed handguns – rather than all functional firearms – the ban still could not stand because handguns are plainly within the class of “arms” protected by the Second Amendment.
The Supreme Court has complete discretion to accept D.C.’s appeal or reject it. That decision will most likely be made in the October-November 2007 time frame after more legal briefs have been filed, not only by the parties to the case, but most likely from various amici curiae (“friends of the court”) as well.
Has Washington, D.C.’s gun ban been working?
Absolutely not. In 1976, the year that Washington’s unconstitutional gun ban went into effect, the city experienced 26.8 homicides, and 1,481.3 violent crimes, per 100,000 inhabitants. The crime rate skyrocketed since then. In 12 of the years between 1980 and 1997, including all nine years from 1989 through 1997, the violent crime rate in the District exceeded 2,000 per 100,000 inhabitants, reaching a high of 2,921.8 in 1993. The high point represented a 97% increase in violent crime, seventeen years after citizens were forbidden from defending themselves with firearms. Moreover, the murder rate climbed as high as 80.6 per 100,000 inhabitants in 1991 – triple the pre-ban levels. As of 2005, the last year for which we have statistics, the murder rate has yet to decline to pre-ban levels. Surrounding jurisdictions in Virginia and Maryland, with more liberal gun laws, have far less violent crime than Washington, D.C. Of course, crime has many causes, but statistics show that easy access to firearms is not a significant factor in causing violent crime. Law-abiding people do not suddenly commit violent crimes simply because they have access to firearms. And disarming the peaceful, law-abiding members of our community has clearly failed to reduce crime. Criminals who do not mind violating the laws barring armed robbery and murder have not been deterred by laws making guns illegal. But criminals no doubt feel more secure knowing that their law-abiding victims are utterly defenseless. There is a large body of empirical literature on this subject, and while the conclusions are not wholly consistent, they provide scant support for anti-gun groups’ claims about the negative social impact of widespread gun ownership. For a primer, we recommend the excellent criminological survey filed in support of our case by Don Kates.
Who are the plaintiffs in this case? Why do they want guns?
The plaintiffs in this case are Shelly Parker, Dick Heller, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon. All are law-abiding citizens who want the ability to own functional firearms in their homes to defend themselves from criminals. Shelly, for example, has had her life threatened by drug dealers who resented her efforts to clean up her neighborhood by running them out. One night in early 2003, one of those drug dealers banged on her front door and tried to pry his way inside, yelling “Bitch, I’ll kill you, I live on this block, too.” Shelly understands, like most citizens, that if that drug dealer had managed to get past her door, her life would have been in her own hands – the police could not possibly have gotten there in time to save her. In fact, Washington, D.C. has repeatedly disclaimed any duty to protect its citizens from violent crime. E.g., Warren v. District of Columbia, 444 A.2d 1, 4 (D.C. 1981).
Dick Heller is a Washington, D.C. “Special Police Officer.” He is authorized to carry a gun while providing security at various locations in the District, including the Thurgood Marshall Federal Judicial Center on Capitol Hill, where he was working at the time the lawsuit was filed. Although District officials trust Heller to use a gun to protect various government officials within the District, he is barred, like all other law-abiding Washington, D.C. residents, from having a gun to protect himself and his family at home.
Other plaintiffs have similar stories, and they all wish to exercise what they believe to be their constitutional right to own functional firearms in their homes for lawful self defense.
What are the goals of the lawsuit?
The primary goal, of course, is to eliminate Washington, D.C.’s ban on the ownership of functional firearms within the home. No state in the country imposes an outright ban on gun ownership the way Washington, D.C. does. Yet citizens of the District have as much right to keep and bear arms as other citizens. Another goal of the case is to secure a ruling from the U.S. Supreme Court that the Second Amendment means what it says, namely, that the “right of the people to keep and bear arms, shall not be infringed.” Of course, that right – like every other constitutional right including free speech and religious liberty – is subject to reasonable regulation by the government. But a total ban certainly is not a “reasonable regulation,” which is why the challenged gun laws cannot stand. Bob Levy summarized the arguments for and against the “individual rights” position in this article for Legal Times. Thanks to the Second Amendment
If the U.S. Supreme Court upholds the D.C. Circuit’s decision striking down the District’s gun ban, what does that mean for gun control?
Reasonable gun laws, such as those that forbid felons, children, or lunatics from handling guns, will not be affected. However, our aim is to persuade the U.S. Supreme Court to make clear that the Second Amendment must be respected the same way other constitutional rights are respected, meaning courts can and should strike down laws that unreasonably interfere with citizens’ responsible ownership of firearms. Thus, outright bans on the possession of ordinary firearms by law-abiding citizens, such as the ban in Washington, D.C., will be history. Other laws whose primary purpose is to discourage gun ownership and make it more difficult, but that produce no demonstrable social benefits, should likewise be struck down by courts that are serious about enforcing the Second Amendment. The process of defining and demarcating constitutional rights is a familiar one for the courts, and it is an ongoing process in every field of constitutional law from free speech, to voting, to search and seizure. Despite the hysterical claims of many anti-gun groups, a favorable Supreme Court ruling in this case certainly will not result in the wholesale elimination of gun laws from coast to coast. Instead, the courts will start looking at gun laws the way they do laws that interfere with various other constitutionally protected rights, with one eye on legitimate public safety concerns and one eye on the Constitution.
Who is backing your case?
This case is a private effort that three lawyers – Alan Gura, Bob Levy, and Clark Neily – have undertaken on a pro bono basis on behalf of the six plaintiffs. We have not raised or accepted funds from any outside source, and the work product is entirely our own. The press has occasionally connected our case with the Cato Institute, probably because Mr. Levy and plaintiff Tom Palmer are affiliated with Cato. But Cato is a think tank, not a law firm, and it has no affiliation with this case beyond its general interest in promoting liberty, which certainly includes the right to own functional firearms in one’s home.
What has the Supreme Court said about the Second Amendment?
The Supreme Court has repeatedly referred to the Second Amendment as securing an individual right, not merely a collective right of states to arm the members of their militias. As early as 1857, in the now-disgraced Dred Scott case upholding the Fugitive Slave Act, the Court referred to the privileges and immunities of citizenship guarantied by the Constitution to white persons but presumably not to African-Americans. Those privileges and immunities included “the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” Scott v. Sandford, 60 U.S. 393, 417 (1857) (emphasis added). It is not surprising that the earliest forms of “gun control” in our nation were Jim Crow laws.
Throughout the 20th Century, the Supreme Court has spoken favorably of
the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms . . .
Duncan v. Louisiana, 391 U.S. 145, 166-67 (1968) (Black, J., concurring) (quoting statement of Sen. Howard, Cong. Globe, 39th Cong, 1st Sess., 2765-2766 (1866) (emphasis added)). Liberty encompasses “more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments.” Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992) (emphasis added). Thus,
[t]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
Casey, 505 U.S. at 848 (quoting Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (emphasis added)); Moore v. City of East Cleveland, 431 U.S. 494 (1977) (same).
In Johnson v. Eisentrager, 339 U.S. 763, 784 (1950), the Supreme Court held that enemy combatants were not entitled to Fifth Amendment Due Process rights, because if that were the case, they would also be entitled to “freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.”
And, as recently as 1990, the Supreme Court explained that
“the people” protected by the Second Amendment are the same “people” – individual human beings – protected by other portions of the Bill of Rights: “[T]he people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (citation omitted) (emphasis added).
The Supreme Court’s only direct ruling on a Second Amendment question came in United States v. Miller, 307 U.S. 174 (1939). Miller was charged with transporting a sawed-off shotgun and not paying the required tax. He successfully argued in the trial court that his actions were protected by the Second Amendment. When the Supreme Court agreed to hear the government’s appeal, however, Miller could not afford counsel to argue his case or prepare written briefs on his behalf. Thus, the government argued the case unopposed. Even so, the Supreme Court ignored the government’s primary argument, that the Second Amendment confers only a “collective right.” Rather, the Court held that Miller could have the sawed-off shotgun if he were to show that such a weapon would be useful to him if called upon for militia duty. The case was sent back to the trial court for the taking of further evidence, but Miller was murdered before the case could be resolved.
Some courts have mistakenly cited the Miller case as endorsing a “collective rights” point of view, often without carefully analyzing the case. But Miller does not support the collective rights theory. Here is the crucial passage from the Miller opinion: “In the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun … has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U.S. at 178. Thus, Miller relates to the type of weapon. The Supreme Court did not find that rights secured by the Second Amendment are “collective.” Indeed, Miller explained that under the militia system, individuals called for duty were “expected to appear bearing arms supplied by themselves.” Miller, 307 U.S. at 179.
Miller is plainly consistent only with an individual rights model of the Second Amendment. The gun prohibition lobby’s claims to the contrary, no matter how often or how fervently repeated, are untrue. We invite people to read Miller and reach their own conclusions.
If the Second Amendment protects military weapons, how about weapons like surface-to-air missiles?
Many gun prohibitionists make wild claims that if the Second Amendment protects an individual right, courts would have to allow people to have their own flamethrowers or cruise missiles. This is nonsense. When interpreting constitutional rights, courts routinely draw lines between the permissible and the far-fetched. For example, our freedom of religion does not permit human sacrifice, and freedom of speech does not protect extortionate threats or disturbing the peace.
Miller suggests two conditions for finding a weapon protected by the Second Amendment. First, the weapon must have military use. Second, the weapon must be “of the kind in common use” when a person is “called for service.” Miller, 307 U.S. at 179. Of course, guns were then, and are now, a kind of weapon “in common use” by individuals. Obviously, the government could not ban a particular type of gun, thereby preventing its common use, then claim the lack of use stemming from the ban rendered the weapon unprotected.
Miller stands for the proposition that weapons of the type that ordinary individuals would find useful – for self-defense, for recreation, for hunting, and the like – would be protected, so long as the weapons are also of the kind that would be suitable for military use. Dick Heller’s .22 caliber revolver and Gillian St. Lawrence’s shotgun are ordinary weapons in common use that could have military applications. It is not difficult to apply Miller’s rule and find that these weapons are protected, leaving aside prohibitionist fantasies about cruise missiles and the like.
Having established that the Second Amendment protects an individual’s right to possess a firearm, it is important to remember that the rights secured by the Second Amendment, like the rights secured by other portions of the Bill of Rights, are not absolute. Regulations – subject to court review – can be imposed on some weapons and some persons. As with other rights spelled out in the Constitution, in order to enforce such regulations the government should have to show that (1) it has a compelling need to regulate; (2) the regulation in question directly advances that need; and (3) there are no less restrictive alternatives. But even if a less stringent standard of court review is adopted, it is clear that an outright ban on ordinary weapons in the home cannot be sustained.
Isn’t it up to the government to arm the militia?
Gun prohibitionists have argued that modern militias do not depend for their viability on privately owned arms. Rather, modern “organized” militias, such as the National Guard, are armed by the state. That notion is misleading.
No fewer than three constitutional provisions limit the states’ power over the militia. Article I, section 8, charges Congress with “organizing, arming, and disciplining, the Militia.” Article I, section 10, says that “No state shall, without the consent of Congress, … keep troops in time of peace.” And Article II, section 2, declares the “President shall be Commander in Chief … of the Militia of the several States.” Thus, if the Second Amendment secures states’ rights to arm their militias, it repealed all three earlier provisions. If that were the true intent of the Framers, it’s certainly a well-kept constitutional secret, without a shred of historical evidence to support it.
Next, consider the Supreme Court’s pronouncement in Miller: “When called for service these men were expected to appear bearing arms supplied by themselves.” If militia members were to arm themselves, the Second Amendment could not mean they would be armed by the states. In fact, if the Second Amendment did not apply to privately owned weapons, the Miller Court would never have reached the question on which that case ultimately hinged: whether Miller’s sawed-off shotgun had military utility.
Gun prohibitionists’ suggestion that today’s “modern militia” is limited to a state-armed National Guard is plainly incorrect. The Modern Militia Act provides that the “militia” comprises “all able-bodied males at least 17 years of age and … under 45 years of age [and] female citizens … who are members of the National Guard.” The Act goes on to state that “the classes of the militia are (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of [all other members].” Plainly, in referring to the “Militia,” the Second Amendment means an informal, citizen-armed force, not the National Guard, which the Framers would have considered equivalent to a standing army.
Is Washington, D.C. exempt from the Second Amendment because it is not a state?
Judge Karen Henderson dissented from the D.C. Circuit’s holding in Parker. Among other things, she argued that the purpose of the Second Amendment is to ensure the “security of a free State.” As a result, she said, the Second Amendment does not apply to D.C. because it is not a state. In response, the majority correctly pointed out that the question of D.C.’s statehood is irrelevant unless one adopts a “collective rights” interpretation that treats membership in the militia as a necessary condition of the exercise of Second Amendment rights. By contrast, if Second Amendment rights are “individual,” the prefatory clause merely posits one use among many for keeping and bearing arms. Consequently, the meaning of “free State” in that clause would not dictate whether the Second Amendment applies. Only if the right is conditioned on militia service is it important to know whether D.C. is a “free state” within the meaning of the prefatory clause, and whether the plaintiff is possessing or using a weapon for militia purposes to secure the state.
Moreover, the Constitution refers in several places to states as distinct political components of the United States. For example, the authority to train the militia is “reserv[ed] to the States”; “No State shall enter into any treaty”; “nor shall any State deprive any person of life, liberty, or property, without due process.” The terms “the States,” “no State,” and “any State” − denoting state governments − contain nouns without descriptive adjectives. That should be contrasted with “free State,” a descriptive and more generic term used often in 18th century and earlier writings. For example, Blackstone, Montesquieu, and Madison used “free state” to mean a non-despotic country, not an independent state of the union.
Did the Second Amendment create the right to keep and bear arms?
No. The Second Amendment says that “the right of the people to keep and bear Arms, shall not be infringed.” It does not create or grant the right; instead, it prevents a right that already existed from being infringed. Where did the right originate? The right to keep and bear arms originated from our common law heritage and our natural rights. The right pre-dated the Constitution and pre-dated government-sponsored militias. Thus, the right could not have been limited to service in the militia. It entailed, among other things, self-defense and hunting − common, lawful, private uses of weapons before the formation of federal and state governments. Once those governments were formed, the use of weapons was expanded to include militia service.
If the Second Amendment covers self-defense and hunting, why was the Militia Clause included?
Constitutional drafters frequently inserted explanations for why they chose to include a particular provision. An excellent survey of this practice, noting dozens of explanatory provisions in early constitutional texts, is included in Prof. Eugene Volokh’s The Commonplace Second Amendment, 73 NYU L. Rev. 793 (1998).
But such prefatory explanations, while interesting, have never been held to limit or eviscerate the plain operative meaning of the constitutional text. One reason offered to support an action does not foreclose other reasons. This is a matter of simple grammar. If the First Amendment were worded, “A well-educated electorate being necessary to the security of a free state, Congress shall make no law abridging the freedom of speech,” it would be grammatically illogical to claim that free speech rights are limited to registered voters or election-campaign material.
There are two other instances of explanatory language in the U.S. Constitution. Consider, first, the famous preamble, beginning “We, the People.…” That text has never been held to limit governmental action. Indeed, the Supreme Court has rejected using the preamble as an interpretive guide. Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).
The Constitution’s other prefatory clause, which explains that Congress has the power to create a system of copyrights and patents “To promote the Progress of Science and useful Arts,” U.S. Const., art. I, sec. 8, cl. 8, has also been held not to impose any sort of meaningful limitation on Congressional power. Eldred v. Ashcroft, 537 U.S. 186 (2003). Books are entitled to copyright protection even if they endorse ignorance and primitivism, and inventions may be patented even if they are never used.
The prefatory clause of the Second Amendment is no different. It is merely explanatory; it offers one rationale among others for the right to keep and bear arms. Under Miller, a weapon qualifies for Second Amendment protection only if it has potential militia use. But once qualified, the weapon can also be used privately, for self-defense and hunting. As the D.C. Circuit put it in Parker, the right to keep and bear arms pre-existed the Constitution and “was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they [might later] perform for the state.”
Doesn’t the Second Amendment’s reference to “well-regulated” imply controls on militia weapons?
As the D.C. Circuit explained in Parker, “well-regulated” means “properly supplied with arms and subject to organization by the states.” In its eighteenth-century American context, “well-regulated” signified that the militia would be equipped with citizen-furnished weapons so that it could serve as a counterweight to a standing army. The framers feared and distrusted standing armies, and realized, in granting Congress near-plenary power over the militia, that a select, armed subset of “organized militia” – such as today’s National Guard – might be equivalent to a standing army. So they wisely crafted the Second Amendment to forbid Congress from disarming ordinary citizens, thereby ensuring the existence of a “well-regulated” militia, one component of which would be manned by Americans bearing their own arms.
How should the Second Amendment be interpreted?
A proper reading of the Second Amendment should not attempt to link each and every weapon to militia use – except to note that the grand scheme of the Amendment was to ensure that persons trained in the use of firearms would be ready for militia service. Correctly interpreted, the main clause of the Second Amendment (“the right of the people to keep and bear Arms, shall not be infringed”) defines and secures the right. The subordinate clause (“A well regulated Militia, being necessary to the security of a free State”) helps explain why we have the right. Thus, membership in a well-regulated militia is a sufficient but not necessary condition to the exercise of our right to keep and bear arms.
If the Second Amendment truly meant what the collective-rights advocates propose, then the text would read: “the right of the States to arm their Militias, shall not be infringed.” But the Second Amendment, like the First, Fourth, Ninth and Tenth Amendments, refers explicitly to the right of “the people.” And consider the placement of the amendment within the Bill of Rights, the part of the Constitution that deals exclusively with the rights of individuals. In the context of the Second Amendment, we secure “the right of the people” by guaranteeing the right of each person.
What do the Federalist Papers say about the right to bear arms?
Alexander Hamilton wrote in Federalist No. 29: “[I]f circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” James Madison agreed. In Federalist No. 46, he declared that a standing army “would be opposed [by] a militia amounting to near half a million citizens with arms in their hands.” Alluding to “the advantage of being armed, which the Americans possess over the people of almost every other nation,” Madison continued: “Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”
Has any other federal appellate court shared the D.C. Circuit’s view of the Second Amendment?
Yes. In United States v. Emerson (2001), the U.S. Court of Appeals for the Fifth Circuit held that the Second Amendment “protects the right of individuals, including those not then actually a member of any militia … to privately possess and bear their own firearms … suitable as personal individual weapons.” The Fifth Circuit found that the Supreme Court’s opinion in Miller was consistent with an individual rights interpretation. According to the Fifth Circuit, Miller’s basic holding was simply that a sawed-off shotgun is not self-evidently protected by the Second Amendment.
What have legal scholars said about the Second Amendment?
The Second Amendment has become the subject of intense study by legal scholars over recent decades. So overwhelming and compelling has the support been for the view that the Second Amendment secures individual rights, across the ideological spectrum, that the individual rights analysis has come to be known as “the standard model” of Second Amendment interpretation.
Legal scholars – including prominent liberals – agree that the Second Amendment secures an individual right, but it 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 respected liberal scholar, and Yale law 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.”
In that respect, Tribe and Amar agree with the Fifth Circuit, the D.C. Circuit, and the Justice Department on two fundamental issues: First, the Second Amendment confirms an individual rather than a collective right. Second, that right is not absolute; it is subject to regulation. To the extent there is disagreement, it hinges on what constitutes permissible regulation – that is, where to draw the line.
Does an individual rights view of the Second Amendment mean no gun control at all in Washington, D.C.?
No, it does not. Even though the Second Amendment secures an individual right, the D.C. government will not be foreclosed from regulating the use and ownership of firearms. The Parker opinion carefully noted that “the protections of the Second Amendment are subject to … reasonable restrictions.” But banning all functional firearms and handguns, for all residents, isn’t a “reasonable” regulation of the right to keep and bear arms, any more than a ban on all newspapers would be a “reasonable” regulation of the free press.
Is there anything that Congress should do while Parker is pending?
If Congress wants to help D.C. residents exercise their Second Amendment rights, there are positive things it can do. D.C. has no federal firearms licensees with retail operations. And handguns, unlike rifles and shotguns, cannot be purchased out-of-state. Accordingly, if Parker prevails, D.C. residents will not immediately be able to buy a handgun. That’s an area that Congress can address: Allow interstate handgun sales as long as they comply with laws in both states. Moreover, Congress can and should change how D.C. processes gun registrations. The city does not follow the National Instant Criminal Background Check System, or NICS. Instead, D.C. requires multiple pictures, fingerprints, and other processes that can take months. Congress should require D.C. officials to accept the NICS system that is used virtually everywhere else.
What is the relationship between guns and the rate of violent crime?
Guns and murder rates are uncorrelated among nations. If anything, the tendency is that more guns go hand-in-hand with lower murder rates. For the nine nations having the most guns, the annual murder rate averages 1.17 persons per 100,000 population. By contrast, the murder rate is 5.5 per 100,000 population – almost five times higher – for the nine nations with the fewest guns. Handguns are allowed in the four European countries lowest in violence: Switzerland, Germany, Norway and Austria. Handguns are banned in Luxembourg (with a murder rate nine times higher than those four countries), in Lithuania (more than 10 times higher), and in Russia (20 times higher).
Of course, cross-country comparisons are suspect unless controls are introduced for numerous variables – e.g., population, age, income, race, urbanization, etc. Most important, the only crimes that are relevant for this purpose are those committed with legally owned guns. It is not an argument for gun control if the vast majority of gun crimes are committed with guns that are unlawfully possessed under existing law. To illustrate: Guns involved in drug-related crimes are almost always unlawfully possessed. Thus, restricting gun crime statistics to those incidences involving legally owned guns would substantially reduce the count in the U.S., where the drug trade is rampant. By contrast, a similar adjustment would have far less effect in, say, the United Kingdom, where the drug trade is at a much lower level. Proper cross-country comparisons should not count crimes using unlawfully possessed guns; and U.S. data, without such an adjustment, is systematically overstated.
Each year, approximately 460,000 gun crimes are committed in the U.S. But guns are also used lawfully to ward off criminals. Estimates of defensive gun use range from 1.3 million to 2.5 million times per year – and usually the weapons are merely brandished, not fired. That means defensive uses occur about three-to-five times as often as violent gun crimes.
Have U.S. government agencies studied the effectiveness of gun controls?
Two respected federal agencies recently examined gun controls and found no statistically significant evidence to support their effectiveness. In 2004, the National Academy of Sciences reviewed 253 journal articles, 99 books, and 43 government publications evaluating 80 gun-control measures. The researchers could not identify a single gun-control regulation that reduced violent crime, suicide, or accidents. A year earlier, the Centers for Disease Control and Prevention reported on an independent evaluation of firearms and ammunition bans, restrictions on acquisition, waiting periods, registration, licensing, child access prevention laws, and zero tolerance laws. Conclusion: none of the laws had a meaningful impact on gun violence.
Does the D.C. gun case hinge on whether gun control reduces violence?
Available evidence strongly suggests that violence will diminish if Americans are able to defend themselves by possessing suitable firearms. But even if that policy argument were to cut the other way – even if it could be demonstrated that more gun laws lead to less crime – Parker is not really about policy. It’s about the meaning of the Constitution. We cannot simply ignore the Second Amendment and act as though it did not exist. 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. The Second Amendment is part of that Constitution, and it is entitled to the same respect that other rights – both written and unwritten – are given by the Supreme Court.
Why is Supreme Court review now desirable?
There are several reasons why the time is ripe for Supreme Court review: (1) The upside potential exceeds the downside risk. Currently, federal appeals courts covering 47 states say there’s no Second Amendment recourse in federal court if state laws violate gun rights. Those decisions would no longer be good law if the Supreme Court affirmed Parker. On the other hand, 44 states have their own constitutional provisions protecting an individual right to bear arms. None of those laws rests on the Second Amendment, so they would be unaffected even if the Supreme Court reversed Parker. (2) A bad case will ultimately reach the Supreme Court if Parker does not. Criminal defense lawyers routinely challenge felon-in-possession and other gun charges on Second Amendment grounds. Sooner or later, one of those cases will be reviewed by the Supreme Court, with a murderer or drug dealer as the poster-boy for the Second Amendment instead of law-abiding citizens. (3) The D.C. Circuit’s Parker opinion is a professional and scholarly foundation for review by the Supreme Court.