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Revision as of 14:46, 23 April 2007 by Eblem (talk | contribs) (→Controversy: Removed irrelevant Chemerinsky reargument of the case and Gura & Possessky sentence to maintain balance between pro and con.)(diff) ← Previous revision | Latest revision (diff) | Newer revision → (diff)| Shelly Parker, et al. v. District of Columbia and Adrian M. Fenty | ||||||||||
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 United States Court of Appeals for the District of Columbia Circuit | ||||||||||
| Argued December 7, 2006 Decided March 9, 2007 | ||||||||||
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| The statutes as applied are unconstitutional. | ||||||||||
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| U.S. Const. Amend. 2; D.C. Code §§ 7-2502.02(a)(4), 22-4504 |
Shelly Parker, et al. v. District of Columbia and Adrian M. Fenty, 478 F.3d 370 (D.C. Cir. 2007), is a case in which the United States Court of Appeals for the District of Columbia Circuit became the first federal appeals court in the United States to strike down a gun control law based on the Second Amendment to the United States Constitution, and the second to interpret the Second Amendment as protecting an individual right to bear arms. (The first was United States v. Emerson (5th Cir. 2001), cert. denied (2001)).
The 2-1 decision in Parker struck down a portion of a the Firearms Control Regulations Act of 1975, a local law of the District of Columbia that restricts residents from owning handguns, automatic firearms, and high-capacity semi-automatic firearms, and prohibits possession of unregistered firearms.
In April 2007, Mayor Adrian Fenty petitioned for a rehearing from the full court of appeals on the grounds that the ruling creates inter- and intra-jurisdictional conflict.
Summary of decision
The Court addresses whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12), and it concludes that Heller (who applied for a handgun permit but was denied) has standing.
Essentially, the appellants claim a right to possess what they describe as "functional firearms", by which they mean ones that could be "readily accessible to be used effectively when necessary" for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District's authority per se to require the registration of firearms.
The Court's own summary of its substantive ruling on the right protected by the second amendment is given on page 46 of the slip opinion (at the end of section III):
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
The Appeals Court did specifically find that "Once it is determined - as we have done - that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."
Summary of dissent
In dissent, Judge Henderson wrote:
To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v. Miller, 307 U.S. at 178, the Second Amendment's declaration and guarantee that "the right of the people to keep and bear Arms, shall not be infringed" relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.
Controversy
Various pundits tooks positions pro and con the decision.
Duke Law School Professor Erwin Chemerinsky argued that the ruling therefore had "no basis in constitutional law".
Cato Institute senior fellow Robert Levy, co-counsel to the Parker plaintiffs, agreed with the court's ruling but conceded that his interpretation of the Second Amendment would not preclude all governmental regulation of private ownership of weapons.
Chris Cox, executive director of the National Rifle Association’s Institute for Legislative Action, has indicated support of federal legislation which would repeal the D.C. gun ban and render the Parker case moot.
References
- "Government Reform to Review D.C.'s Handgun Ban". Congressman Tom Davis.
- Page 4 of the decision
- PageIII-17 of dissent.
- Rubin, Jennifer: National Review Online, Page 2. March 29, 2007.
Other references
- Liptak, Adam. "Appeals Court Says Gun Ban Violates 2nd Amendment." New York Times. March 9, 2007.
- Miller, Bill, and Robert Barnes. "Appeals Court Guts D.C. Gun Ban." Washington Post. March 9, 2007.
External links
- Text of the decision (slip opinion)
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