Friday, March 9, 2007

DC Circuit: "The Right Of The People To Keep And Bear Arms Shall Not Be Infringed!--This Means YOU, Fenty"

PARKER v. DISTRICT OF COLUMBIA, USCA-DC No. 04-7041, 2007 U.S.App. LEXIS 5519, http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf , on appeal from USDC-DCD, before USCJs Henderson and Griffith and SrUSCJ Silberman, opinion by Silberman, dissent by Henderson, filed 09 Mar 2007.

LONG STORY SHORT: The Second Amendment to the United States Constitution confers a right to keep and bear arms upon individual citizens, not just a collective right of states to keep organized militias. Binding in DC.

FACTS: Four District of Columbia residents, contrary to D.C. Code § 7-2502.02(a)(4), wanted to possess handguns in their homes, and, contrary to D.C. Code § 22-4504, wanted to carry handguns from one room to another inside their homes for the purpose of lawful self-defense. A fifth DC resident owned a registered shotgun and, contrary to D.C. Code § 7-2507.02, wanted to keep it assembled and without a trigger lock in the home for purposes of lawful self-defense. A sixth DC resident, who as a DC special police officer was allowed to carry a handgun on duty at the Federal Judicial Center, applied for a registration certificate to keep a handgun at home for lawful self-defense, which DC denied.

PROCEDURE: Plaintiffs sued DC in the U.S. District Court for the District of Columbia, seeking declaratory and injunctive relief per 28 U.S.C. §§ 2201 and 2202 and per 42 U.S.C. § 1983 for DC's violation of their Second Amendment right to keep and bear arms. The trial court ruled that the Second Amendment at most protects an individual's right to bear arms for service in the militia, not an individual right to keep and bear arms. COMPLAINT DISMISSED in all respects for failure to state a claim. Plaintiffs appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

DECISION: A plaintiff asserting deprivation of constitutional rights must first have standing to bring a case in court, else there is no Article III case or controversy and no jurisdiction. The sixth plaintiff here, having applied for and been denied a handgun registration certificate, had standing to raise a Section 1983 challenge, and the case could proceed to its merits.

The Second Amendment to the U.S. Constitution reads in full: "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 second comma divides the Second Amendment into two clauses, the first being a prefatory statement of civic purpose. Many courts, notably excepting the Fifth Circuit, have seized upon this prefatory clause to hold that the Second Amendment only guarantees a collective right to each State and the District of Columbia to raise and arm its own organized militia, and leaves the federal and state governments free to regulate or ban all private ownership and possession of arms unless somehow such laws were to interfere with militia preparedness. The DC Circuit held this strained interpretation, along with the variation of sophisticated collective rights without remedies, to be incorrect.

On the other hand, the Second Amendment's operative clause clearly confers an individual right to keep and bear arms, subject only to reasonable regulation. An extensive survey of the meanings, then and now, of "militia," "state," "the people," "keep," "bear," and "arms," as well as the different "the states respectively, or to the people" wording of the Tenth Amendment, militated firmly in favor of reading "the right of the people to keep and bear Arms shall not be infringed" to apply to individuals, just as most other constitutional rights do. Indeed, the Second Amendment did not make up a new right, but only codified the well-established right of free people to possess firearms suitable for protection, hunting, and militia use. Furthermore, just as the First Amendment applies not just to quill pens but also to computers and mass media, the Second Amendment applies not just to muzzleloading muskets but also to modern handguns such as the militia would use. Whatever the civic purpose of the Second Amendment, the right is broader than it.

As a federal district, not a state, the Bill of Rights directly applies to DC, rendering the question of whether the Fourteenth Amendment incorporates the Second Amendment and binds it upon the States inapplicable. At least some of DC's contrary arguments were frivolous, but all of them were wrong. The statutes of which Plaintiffs complained were unconstitutional in violation of the Second Amendment right to keep and bear arms for hunting and self-protection. REVERSED AND REMANDED with instructions to grant summary judgment to Plaintiffs.

The dissent agreed with the collective right interpretation of the Second Amendment and declared most of the majority opinion to be dicta, however well-written and informative it might be. However, the dissent's key holding was that DC is not a "State" within the meaning of the Second Amendment, making the Second Amendment inapplicable to DC.

EDITORIAL: Words aren't enough to express the relief and jubilation that the federal courts have at last learned to read the plain language of the Constitution. This opinion may mark the beginning of the end of the bench legislation era. Now you see why electing the right President, who will appoint the right judges and justices, is so important. Once again, the dissenting judge illustrates the astonishing ability of professional gun haters to disregard facts, logic, history, and plain words with a straight face. See you on the firing line tomorrow!

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