D.C. Gun Control Laws May Be Illegal, Smith Says

April 12, 2007

Prof. Stephen SmithSen. Jim Webb's recent embarrassing encounter with the law when an aide was arrested for attempting to carry the senator's gun into a Capitol Hill office building exposed another embarrassing fact for lawmakers: while congressmen are allowed to carry firearms in government buildings to protect themselves, they break the District of Columbia's strict gun control laws by even driving a firearm to work.

Key provisions of the D.C. gun ban were struck down 2-1 in March by a conservative panel of the U.S. Court of Appeals for the D.C. Circuit, a decision that would likely be affirmed if the case is appealed to the Supreme Court, said Law School professor Stephen Smith during a Federalist Society lunch talk April 5. Smith called the case an "ideal vehicle" for the Bush administration to get a Second Amendment case to the Supreme Court. "These laws [in D.C.] are just so unyielding," he said. "The facts are just very, very strong in favor of recognizing at least a basic individual right to keep and bear arms."

Several D.C. residents, including a D.C. police officer, brought a lawsuit protesting three provisions of D.C. gun control laws in Parker v. Fenty . Although the D.C. Circuit panel sent the case down to a lower district court to issue an injunction against enforcing the provisions, the next step could be an en banc review by the entire D.C. Circuit Court of Appeals or Supreme Court review.

"This seems like a great time for the Supreme Court to take the case up," Smith said, noting that only one federal appellate circuit hasn't weighed in on the Second Amendment. All the federal circuits have affirmed the government's right to impose gun control laws, although their reasoning for doing so varies.

The Second Amendment 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." The Fifth Circuit and the D.C. Circuit have offered the only appellate decisions supporting the individual right to bear arms, versus the collective right to bear arms by a militia or state entity endorsed by other courts.

The challenged provisions in Parker bar individuals from registering handguns not registered in D.C. prior to 1976; make it a crime to carry guns, even in the privacy of your own home, unless you have a license from the chief of police, who has total discretion to deny a license; and requires that even lawfully registered weapons be trigger-locked, disassembled, or unloaded when taken outside a place of business except while in use for lawful recreational purposes.

In the initial challenge "the district court dismissed the lawsuit, [and] said that the Second Amendment does not create an individual right" to possess or use handguns for self-defensive purposes.

Smith said support for the collective view among the courts divides into two camps. The first argues the right to bear arms applies only to militias or state military activities. "It's a way for states to protect against action by the federal government to disarm their militias," he explained. More states have adopted the second, "sophisticated collective rights" view: The Second Amendment protects individuals only if they are in a militia or military, which "is really just another way of saying there's no individual right," Smith said.

Only one definitive Second Amendment case has reached the Supreme Court. Miller v. United States (1939) involved a prosecution for the unlawful shipment of a sawed-off shotgun across state lines. The Supreme Court upheld the conviction of the man making the shipment.

"Properly viewed, I think the Supreme Court doesn't take a position on which of these views [collective or individual] is right," he said. The opinion held that the sawed-off shotgun was not protected because it wasn't the kind of weapon that would be used or useful for military purposes; the man was not a militia member, either. "I think [the Supreme Court] just jumped over the question," Smith said.

D.C. Circuit senior judge Laurence Silberman, with Judge Thomas Griffith '85 concurring, treated the nature of Second Amendment rights as an open question. Debate over the meaning of the Second Amendment has centered on whether the first clause ("a well regulated Militia…") is a limit on the right to bear arms, or simply a preface to explain why the Framers gave individuals the right to bear arms.

Silberman argued in his opinion that the introductory phrase does not render the remainder of the amendment superfluous. At the time of the writing of the Bill of Rights, Anti-Federalists were worried about the status of the standing army versus that of state militias; Silberman said the amendment was designed to appease the Anti-Federalists. The phrase "the right of the people," according to Silberman, means "it's not a right of the state."

Some supporters of the collective rights interpretation have said that the historical need for an individual right to bear arms is unnecessary because the National Guard is now outfitted and armed by the state and federal governments. Smith suggested that since the National Guard is under federal control, and can be deployed by the federal government, the argument is weak in light of the purpose of the Second Amendment.

Smith noted that, as in the First Amendment, protections under the Constitution are not absolute. While infringements on free speech are subjected to the rigorous review standard of "strict scrutiny," restrictions on gun rights are commonly thought to be subject to the much more lenient standard of "reasonableness" review. Thus gun control measures requiring a waiting period or denying people of unsound mind, minors, and felons the right to bear arms have been consistently upheld by courts. As a result, even if the Supreme Court affirms the individual right to keep and bear arms, Smith predicted, the case will likely not have a significant impact on most gun control laws unless the court rejects reasonableness review in favor of strict scrutiny.

"The Supreme Court, in a case after the Civil War, offered some dicta saying despite the Second Amendment [governments can] ban the carrying of concealed weapons," he pointed out.

In Parker, Silberman even suggested it would be permissible to require licenses for all firearms. "You tell that to your friends in the NRA, and they're going to go nuts. They think that is just the third rail," Smith said. "In their view, being forced to register your guns is the first step toward the government taking your guns away."

Similarly, in 2001 the Fifth Circuit affirmed the individual right to keep and bear arms according to the Second Amendment in Emerson v. United States, but the court also affirmed the right of the federal government to make it a crime for Emerson to retain a gun after being subject to a protective order on behalf of his wife. The Supreme Court didn't take the appeal.

"It looks like there are going to be a lot of restrictions on gun ownership that are upheld even under the individual rights view."

Ironically, "after Emerson, some of the biggest proponents of Second Amendment rights were public defenders, because they've got all these clients charged with gun offenses, such as using guns during drug transactions, being a felon in possession of firearms, and so forth." The additional gun charges in such cases meant clients would likely suffer more jail time.

"It's a momentous step the courts have taken in Emerson and Parker, but it's momentous only because we've had no steps until then," Smith said. "I just don't think this case is going to spell the end of gun control as we know it."

Smith said one thing the D.C. law doesn't do is protect its citizens from gun crimes. Criminals in one of the most notoriously violent cities "have guns already."

However, if the D.C. Circuit grants en banc review, Smith said the case was not a slam dunk with the full bench. "You had three Republican-appointed judges on the panel in Parker, and they split 2-1," he said, noting that the dissenting judge didn't reach the individual rights issue because the District is not a state. "On the Supreme Court I'm more optimistic. I think the votes are there to recognize an individual right to keep and bear arms."

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