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WASHINGTON � The U.S. Supreme Court has avoided spelling out the meaning of the Second Amendment’s right to bear arms for nearly 70 years. But after a ruling Friday by the D.C. Circuit U.S. Court of Appeals, it might be difficult for the high court to sidestep the issue any longer. A three-judge panel led by Senior Judge Laurence Silberman struck down parts of D.C.’s strict gun-control ordinance as a violation of residents’ Second Amendment right to bear arms in Parker v. District of Columbia. The 58-page ruling by Silberman, an influential and conservative member of the D.C. Circuit, apparently marks the first time an appeals court has found a law unconstitutional based on that controversial part of the Bill of Rights. Silberman was joined by Judge Thomas Griffith, with a dissent from Judge Karen LeCraft Henderson; both Griffith and Henderson are conservatives. Silberman’s ruling is also a forceful brief for the view that the awkwardly worded Second Amendment protects an individual right to bear arms, rather than the militia or group right that the Supreme Court articulated in 1939 in United States v. Miller. “The issue has been teed up by Judge Silberman in such a way that no honest court can avoid dealing with it head-on,” said Roger Pilon of the Cato Institute, which supported the challenge to the D.C. ordinances. “He has cut through all the fog surrounding the Second Amendment.”
‘The issue has been teed up by Judge Silberman in such a way that no honest court can avoid dealing with it head-on. He has cut through all the fog surrounding the Second Amendment.’

ROGER PILON Cato Institute


The provisions at issue, some of the strictest in the nation, barred newly registered handguns, banned carrying pistols inside a person’s home, and said licensed firearms must be kept locked or disassembled. D.C. government officials offered no immediate word about possible appeals, but it appears likely that the city, under new Mayor Adrian Fenty, will at least seek an en banc review of the ruling. “The fact that, even on this panel, there was one dissent is a sign that the decision is open to question,” says David Gossett, a partner at Mayer, Brown, Rowe & Maw in D.C., which represented the Brady Center to Prevent Gun Violence in support of the D.C. ordinance. If en banc review fails, Washington, D.C., would then face the decision of whether to appeal to the Supreme Court, which, with its new composition, might be more eager to take up the issue. If the city appeals and the court agrees to take the case, it could land on the court’s agenda in mid-2008, a presidential election year. Gossett would not predict an outcome, but thinks it is not a foregone conclusion that the Supreme Court will rule in favor of the individual right. A strong historical case can be made against it, he says, and police and other unexpected groups might weigh in on the pro-gun control side. Even if the high court rules in favor of an individual right, it would not spell the end of all gun regulation. As even Silberman points out, the high court has allowed reasonable restriction of other individual rights such as freedom of speech. But such a decision could trigger litigation over a range of laws, including those that make criminal penalties more serious if they involve possession of firearms. The meaning of the ungrammatical text of the Second Amendment has been debated for decades: “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 Miller court in 1939 and many scholars since have viewed it as an articulation of the right of state militias � not individuals � to bear arms. Over the years, the high court, apparently glad to avoid the hot-potato issue, has consistently declined to take up Second Amendment challenges to laws restricting gun use and possession. But recent scholarship has shifted toward the individual-rights view � even in the opinion of Harvard Law School’s liberal Laurence Tribe, who expressed his new analysis in the latest edition of his widely read constitutional treatise, American Constitutional Law. Silberman cited Tribe in his decision on the way to reaching the conclusion that the Second Amendment expresses the Framers’ view that “people possessed a natural right to keep and bear arms.” The case now returns to the district court level, where, according to Silberman’s ruling, the judge must issue an injunction against the enforcement of the provisions that have been struck down. Henderson’s dissent dismisses the majority decision as “superfluity” because, in her view, the Second Amendment applies only to states � not to the District of Columbia. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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