DC Gun Law Out
by Bob Barr

Every once in a while — a long while — a federal court decision comes along that is so lucid and solid it deserves kudos. Thus it is with the decision rendered by the U. S. Court of Appeals for the District of Columbia, throwing out the 30-year-old Washington, D. C., ban on private ownership of firearms.

While the 2-1 decision directly affects only the District of Columbia, the opinion will likely be widely cited in other jurisdictions. Even though the District of Columbia government has indicated it will appeal the decision to the full Court of Appeals panel, this case may well become the vehicle through which the Supreme Court will, after more than two-and-a-quarter centuries, squarely address the question of whether and to what extent the Second Amendment to the Constitution protects an individual right to keep and bear arms.

The case on which this seminal opinion was based was brought by six average citizens of the nation's capital. In fact, the parties included a police officer in the District who was authorized to carry a handgun while working at the Federal Judicial Center, but was prohibited from keeping a gun at his home.

The District of Columbia was joined in its effort to uphold its anti-firearms law by the Brady gun control organization, and by governors and mayors of many pro-gun control cities and states, including Massachusetts, Maryland, New Jersey, New York City, San Francisco and Chicago. While Eleanor Holmes Norton, the District of Columbia's non-voting delegate in the House of Representatives was vehement in blaming the National Rifle Association for the Court of Appeals' decision, the NRA was simply one of a long list. Pro-Second Amendment attorneys general and civil rights organizations filed friend-of-the-court briefs backing the six District of Columbia residents.

The two judges who authored the 58-page majority opinion began and ended their decision with the one-sentence-long Second Amendment to the Constitution of the United 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." The jurists quoted liberally from previous court decisions that touched on different aspects of the Second Amendment, and they drew on historical writings and debates surrounding adoption of the amendment. But the judges relied as well on common sense and basic rules of grammar in concluding that:

• The right to keep and bear arms, as a fundamental right of a free people similar to those rights dealt with in other parts of the Bill of Rights, existed independently of and preceded the document in which they were enumerated.

• The right is an individual one as opposed to a collective or civic right.

• The operative clause in the amendment is "the right of the people," and the reference to a "Militia" is merely "prefatory."

• The right to arm oneself included the right of self-defense, and was not limited to hunting as some have argued.

• Handguns clearly were contemplated as being included in the concept of "Arms" in the amendment.

• While the right as guaranteed in the amendment is not absolute, a law that effectively prohibits its exercise cannot be tolerated.

Importantly also, the majority opinion did not attempt to go beyond the specific question presented it. For example, the court did not address the issue of whether D.C. residents have a right to carry firearms outside their homes. This narrow focus of the majority's opinion strengthens its chances for being affirmed on appeal.

The majority did, however, employ unusually strong language in its characterization of the District of Columbia's arguments seeking to have its 1976 anti-gun ordinance upheld based on its opinion that the Second Amendment reflects not an individual right but a collective right limited only to organized "militias" and that handguns were not contemplated as being included in the term "Arms." The majority referred to such arguments by the D.C. government as "outlandish," "strained," and "risible" (that is, "laughable," according to the dictionary to which I was forced to turn upon encountering the word in the opinion).

The appeals court opinion certainly does not represent the federal court system's final word on the Second Amendment. However, its clear language and sound reasoning provide hope this unfairly maligned provision in our Bill of Rights finally will be accorded the respect its companion measures have long enjoyed.

Former Congressman and U.S. Attorney Bob Barr practices law in Atlanta. He is a National Rifle Association board member. Web site: www.bobbarr.org.