OpenCarry.org Press Release –7 December 2006
I attended the hearing on 7 December 2006 re: Parker et al. v. District of Columbia, case No. 04-7041 before a 3 judge panel of the DC Federal Court of Appeals.
Judges Silberman & Griffith peppered both sides critically with questions about standing to sue & the meaning of the Second Amendment. Parker et al. are apparently suing to invalidate:
1. The DC handgun ban effected by a ban on issuance oflicenses to possess/carry handguns.
2. The DC statute requiring that even properly berendered inoperable at all times, even at home when needed for self defense.
But the DC solicitor general (Todd Kim), in vigorously defending the DC gun ban, & forcefully arguing that the plaintiffs had no standing to sue in federal court till they exhausted their remedies in DC local courts, clearly began to irritate Judge Silberman - Silberman finally asked Mr. Kim if an Asian person, denied the right to have a gun permit by DC on the basis of race, would have standing to sue in federal court?
Incredulously, Kim, a manappearing of Asian descent, said NO!
Kim also argued that under the Supreme Court'sMiller two part test, DC resident's constitutional claim to own handguns b/c handguns are not common to the District. To significant laughter in the courtroom, Silberman rejoined that DC residents appear frequently in DC courts on handgun related criminal charges!
Silbermanscoffed at theidea that the Miller test could be defeated by simply banning guns, and action which would swallow the very rule itself.
And Silberman noted wryly that many criminal cases involving handgun charges end up being nullified by DC juries anyway!
Judge Griffith also seemed a bit incredulous at the DC position that the Second Amendment is an utter nullity.
I predict thepanel will:
1. Sustain standing of at least one of the Parker parties to sue.
2. Hold that the Second Amendment provides an individual right to possess functional guns, including handguns, consistent with the Miller two part test.
3. Remand the case to the district court for further proceedings consistent with the opinion.
"Scope of 2nd Amendment Questioned," The Associated Press, by Matt Apuzzo, at http://www.washingtonpost.com/wp-dyn...120701001.html
"Group Takes D.C. Gun Laws to Court," WTOP Radio, by Darci Marchese, 7 December 2006,at http://www.wtop.com/?nid=596&sid=998725.
Cato Press Release re: Parker v. DC at http://www.cato.org/new/02-03/02-10-03r.html
United States Attorney General Opinion, 24 August 2004 (declaring that "[t]he Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias") at http://www.usdoj.gov/olc/secondamendment2.htm.
United States v. Emerson 270 F.2d 2003 (5th Cir. 2001)(holding that the Second Amendment provides an individual right to possess guns).
"The Embarrassing Second Amendment," by
Sanford Levinson," 99 Yale L.J. 637-659 (1989)(arguing that it's time thelegal academytake the Second Amendment seriously) at http://www.firearmsandliberty.com/embar.html.
The US Supreme Court has consistently supported the Second Amendment as providing an individual right of the people to posses guns:
Dred Scott v. Sandford, 60 U.S. 393 (1857)(implying that the Second Amendment provided an individual right to possess guns by holding that former slaves could not be citizens of the United States in part because any other result "would give to persons of the African American race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them 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" [emphasis added]).
United States v. Cruikshank, 92 U.S. 542 (1876)(noting that the right of the people to keep and bear arms "is not a right granted by the Constitution . . . [n]either is it in any manner dependent upon that instrument for its existence" but held that the Second Amendment provided the federal courtsno power to punish Klansmeninterference in blacks' gun rights and that blacks must"look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state).
Presser v. Illinois, 116 U.S. 252 (1886)(stating that "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government").
Miller v. Texas, 153 U.S. 535 (1894)(holding that the Second Amendment was not incorporated via the Fourteenth Amendment to limit state police powers). NOTE: The US Supreme Court did not begin incorporating federal Bill of Rights provisions to apply to states until 1925. See Gitlow v. New York, 268 U.S. 652 (1925)(holding that the First Amendment limits the reach of state police powers). To this day, Justice Thomas disagrees with Gitlow, presenting a problem for gun rights advocates seeking incorporation of the Second Amendment to limit state police powers.
United States v. Miller, 307 U.S. 174 (1939)(holding that the Second Amendment provides an individual right to possess guns which are: (1) In common use,& (2) Suitable for use as a member of the militia if called upon to serve in the common defense; also holding that the term "militia" within the meaning of the Second Amendment consisted of "all males physically capable of acting in concert for the common defense" ).
Lewis v. United States, 445 U.S. 95 (1980)(summarizing Miller as standing for the proposition thatthe Second Amendment guarantees do not extend beyond weapons bearing "some reasonable relationship to the preservation or efficiency of a well-regulated militia" and upholding a federal law prohibiting possession of firearms by convicted felons as historically consistent with the loss of numerous fundamental rights of citizenship -- including the right to vote, hold office, and serve on juries."
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)(unanimously holding that themeaning of the term "the people" in the in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth Amendments, i.e., that "the people" includes not just US citizens but also "[a]liens are entitled to constitutional protections when they have come within territory of the United States and develop substantial connections with this country").