In March of this year, firearms owners everywhere celebrated the Parker
decision, in which the United States Court of Appeals for the District
of Columbia Circuit declared the D.C. gun law unconstitutional to
the extent that the law prohibits all firearms possession. You can
read our original analysis here: http://www.jpfo.org/alerts/alert20070312.htm
. In May, the full D.C. Court refused to hear the case "en banc",
paving the way for a Supreme Court decision.
The Harvard Law Review recently published an article discussing the
ramifications of the Parker decision, and what the Supreme Court might
do if they hear the case. You can read the article at http://www.law.harvard.edu/alumni/bulletin/2007/summer/feature_3.php
or http://tinyurl.com/3artc9
.
Despite optimism from pro-gun circles, it doesn't look good. As the
article states, "The ruling—in Parker v. District of Columbia—marked
the first time a gun law has been found unconstitutional based on
the Second Amendment, and it set up a direct conflict among the circuits.
Nine federal appeals courts around the nation have adopted the view
that the amendment guarantees only the collective right of organized
state militias to bear arms, not an individual’s right. (A 5th
Circuit panel found that individuals have gun rights but upheld the
regulation in question, so both sides claim that ruling as a victory.)"
Former District of Columbia Mayor Anthony Williams is quoted as saying,
"“Let’s take [Justice Antonin] Scalia’s approach.
I think the framers’ intent was to see to it that [through]
militias, states as sovereign entities had a right to arm themselves.
To me, it’s not about individuals -- it’s about groups.”
Harvard Professor Mark Tushnet says, "My gut feeling is that
there are not five votes to say the individual-rights position is
correct. [Justice Anthony] Kennedy comes from a segment of the Republican
Party that is not rabidly pro-gun rights and indeed probably is sympathetic
to hunters but not terribly sympathetic to handgun owners. Then the
standard liberals will probably say ‘collective rights.’”
Even if the Supreme Court does deem firearms ownership as an individual
right, we still aren't safe. Says Tushnet, “Once you recognize
[gun ownership] as an individual right, then the work shifts to figuring
out what type of regulation is permissible.”
So what's the bottom line according to one of Harvard's Constitutional
experts? In a sidebar ( see http://www.law.harvard.edu/alumni/bulletin/2007/summer/feature_3-side1.php
or http://tinyurl.com/2x79sc
), Professor Tushnet states, "Gun-control proponents have a significantly
stronger case than their adversaries if we treat the question of interpreting
the Second Amendment as an ordinary constitutional question and use
all the interpretive tools judges ordinarily use.”
We encourage our readers to continue to watch the Parker case closely.
You can read or download our interview with author and attorney David
T. Hardy at http://www.jpfo.org/tta/tta070531.htm
, in which we discuss the case at length.
- The Liberty Crew
