By David Nakamura and Robert Barnes
Washington Post Staff Writers
Saturday, March 10, 2007
A federal appeals court ruled yesterday that the District's longtime ban on keeping handguns in homes is unconstitutional.
The 2 to 1 decision by an appellate panel outraged D.C. Mayor Adrian M. Fenty and other city leaders, who said that they will appeal and that gun-related crimes could rise if the ruling takes effect. The outcome elated opponents of strict gun controls because it knocked down one of the toughest laws in the country and vindicated their interpretation of the U.S. Constitution's language on the right to bear arms.
The panel from the U.S. Court of Appeals for the D.C. Circuit became the nation's first federal appeals court to overturn a gun-control law by declaring that the Second Amendment grants a person the right to possess firearms. One other circuit shares that viewpoint on individual rights, but others across the country say the protection that the Second Amendment offers relates to states being able to maintain a militia. Legal experts said the conflict could lead to the first Supreme Court review of the issue in nearly 70 years.
The District's law bars all handguns unless they were registered before 1976; it was passed that year to try to curb gun violence, but it has come under attack during the past three decades in Congress and in the courts. Yesterday's ruling guts key parts of the law but does not address provisions that effectively bar private citizens from carrying guns outside the home.
Fenty (D) said the city is committed to pursuing additional appeals, adding: "I am personally deeply disappointed and frankly outraged by this decision. It flies in the face of laws that have helped decrease gun violence in the District of Columbia."
City attorneys said that it would take at least 30 days for the court's decision to go into effect, during which time the District probably will file its appeal. During an appeal, which could last more than a year, the current law would remain in effect, the lawyers said.
Fenty said city officials will "do everything in our power to work to get the decision overturned, and we will vigorously enforce our handgun laws during that time."
The ruling was the latest development in four years of litigation waged by six D.C. residents who said they wanted to keep guns in their homes for self-defense. Alan Gura, an attorney for the plaintiffs, said, "This is a tremendous victory for the civil rights of all Americans."
Senior Judge Laurence H. Silberman wrote the majority opinion, also signed by Thomas B. Griffith. Karen LeCraft Henderson dissented. All three were appointed by Republican presidents.
"We conclude that the Second Amendment protects an individual right to keep and bear arms," Silberman said in the 58-page majority ruling.
The residents filed their lawsuit -- Parker v. the District of Columbia-- months after then-Attorney General John D. Ashcroft declared that gun bans violate the Second Amendment. They were aided by the Cato Institute, a nonprofit group that advocates personal liberties.
The suit said the ban on handgun ownership violates the Second Amendment, which states: "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."
U.S. District Judge Emmet G. Sullivan dismissed the suit a year later, saying the amendment was tailored to membership in a militia, which he defined as an organized military body.
The case moved to the appellate court, with the National Rifle Association siding with the pro-gun faction, while the Brady Center to Prevent Gun Violence joined the District. Reflecting the case's national importance, various state governments lined up on each side.
In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the District's position, that a militia means just that. Others have ruled that the amendment is broader, covering the individual rights of people who own guns for hunting or self-defense.
The Supreme Court addressed the Second Amendment in 1939, but it did not hold that the right to bear arms meant specifically that a person could do so.
Yesterday's majority opinion said that the District has a right to regulate and require the registration of firearms but not to ban them in homes. The ruling also struck down a section of the D.C. law that required owners of registered guns, including shotguns, to disassemble them or use trigger locks, saying that would render the weapons useless.
In her dissent, Henderson wrote that "the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States." She also said that because the District is not a state, the Second Amendment does not apply.
Silberman, a staunch conservative, was nominated to the appellate court by President Ronald Reagan, and Griffith was nominated by President Bush. Henderson was nominated by President George H.W. Bush.
Critics have long said that the D.C. law is ineffective, noting that the city has had hundreds of homicides in recent years, most of which were committed with handguns. Of last year's 169 homicides, 137 were committed with firearms, D.C. police said. Enforcing the strict handgun ban is difficult with so many guns on the streets, but police recovered more than 2,600 guns last year.
This was not lost on the Court of Appeals. In a footnote, Silberman noted that "the black market for handguns in the District is so strong that handguns are readily available (probably at little premium) to criminals. It is asserted, therefore, that the D.C. gun control laws irrationally prevent only law abiding citizens from owning handguns."
People in Virginia may legally carry guns openly or conceal them in their homes or businesses. They also may carry concealed weapons in public if they obtain a court-issued permit. In Maryland, residents can own handguns, and gun owners with "good and substantial" reasons can apply for permits to carry them.
Tom G. Palmer, a senior fellow at the Cato Institute and one of the plaintiffs who prevailed yesterday, said he once used a handgun to ward off potential attackers when he lived in San Jose. He said the ruling would help residents protect themselves.
"Let's be honest: Although there are many fine officers in the police department, there's a simple test. Call Domino's Pizza or the police, and time which one gets there first," Palmer said.
Plaintiff Gillian St. Lawrence, 28, who lives with her husband in Georgetown, said she has a shotgun in her home and, following District law, keeps it unloaded and bound with a trigger lock. She said she's looking forward to residents "being able to defend themselves in their homes."
NRA Executive Vice President Wayne LaPierre said, "The only people who have anything to fear from a decision like this are the people who intend to break into someone's home in the middle of the night."
But former U.S. deputy attorney general Eric H. Holder Jr. said that weakening the gun law "opens the door to more people having more access to guns and putting guns on the streets."
If the District appeals, the first step would be to seek a review by the full D.C. Circuit. After that decision, the Supreme Court could be asked to review the case. Constitutional scholars said the case is ripe for an airing before the Supreme Court no matter who might prevail in an appeal. However, some scholars said that a D.C. loss in the high court could create a stronger precedent against strict gun laws.
D.C. Council member Phil Mendelson (D-At Large) said the ruling could "lead to the overturning of every gun control law in the city. I don't think we have any choice but to fight it."
D.C. resident Kenny Barnes, who became a gun control advocate after his 37-year-old son was shot to death on U Street NW, called the ruling "crazy."
"What kind of message are you sending?" Barnes asked. "This is not Dodge City in the 1800s."
Staff writers Tom Jackman, Elissa Silverman and John Wagner and staff researcher Meg Smith contributed to this report.