Major Second Amendment Decision

The United States Court of Appeals for the District of Columbia Circuit (commonly referred to as the "D.C. Circuit") today (Friday, March 9) issued a very important Second Amendment decision  broadly upholding the right of individuals to possess and use firearms, in particular handguns, for self-defense in the home.

The case involved a challenge, brought by six residents of the District of Columbia, to the District's handgun laws.  These laws largely ban the private ownership of handguns in D.C.  Even where such ownership is permitted (e.g., by retired D.C. police officers), the laws impose onerous restrictions on the use of such handguns, including a requirement that all firearms be kept unloaded and unassembled or bound by a trigger lock or similar device.  (See Decision at 4.)  The plaintiffs wanted to possess "functional firearms" in their homes for purposes of self-defense.  The D.C. guns laws, obviously, frustrated these perfectly reasonable aims.

The case was heard by a three-judge panel, composed of Laurence Silberman (appointed by President Reagan in 1985), Thomas Griffith (appointed by President George W. Bush in 2005), and Karen LeCraft Henderson (appointed by President George H.W. Bush in 1990).

Judge Silberman and Judge Griffith concluded (in an opinion written by Judge Silberman, in classic originalist style) that the Second Amendment protects an individual right to "keep and bear arms" (as opposed to merely a collective right related to the maintenance of state militias); that handguns are among the types of "arms" protected by the Second Amendment; and that the District's handgun laws violate the Second Amendment insofar as they prohibit an individual from owning and using a handgun for self-defense in the home.  Judge Henderson dissented from the decision.

This is only the second time a federal appellate court has decided that the Second Amendment protects an individual right to possess firearms.  The Fifth Circuit also has reached this result.  In contrast, the First, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits all have concluded that the Second Amendment only protects a collective right.  (See Decision at 16.)  The Second Circuit (which covers New York, Connecticut, and Vermont) still has not addressed the issue.  As a resident of New York City, I would love to see the Second Circuit follow the D.C Circuit's lead and declare the NYC gun laws unconstitutional.  Unfortunately, the Second Circuit is very liberal, so this is extremely unlikely to happen.   

Undoubtedly, the D.C. Government will seek reconsideration of this decision by the full D.C. Circuit ("en banc") and/or will appeal to the U.S. Supreme Court.  Unless the D.C. Circuit en banc reverses this decision, I think it is very likely that the case eventually will be heard by the Supreme Court.  Although the Supreme Court has discretion over which cases it agrees to hear, the existence of a disagreement among the various federal appellate courts on a major issue of constitutional law (known as a "circuit split") makes it more likely that the Supreme Court will take action to resolve the disagreement.  Although the D.C. Circuit has the smallest geographical jurisdiction of the federal courts of appeal (it covers only the District of Columbia), it generally is considered the most important of the circuit courts (for several reasons).  Consequently, its decision in this case will be accorded considerable weight when the Supreme Court decides whether or not to hear the case on appeal.

As an aside, it is interesting to note who weighed in as amicus curiae in this case in support of the plaintiffs and the D.C. Government. 

Supporting the plaintiffs were the attorney general's offices of Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Michigan, Minnesota, Nebraska, North Dakota, Ohio, Utah, and Wyoming.  Also supporting the plaintiffs were the Second Amendment Foundation, the Congress of Racial Equality , the American Civil Rights Union , and the NRA Civil Rights Defense Fund

Supporting the D.C. Government were the attorney general's offices of Massachusetts, Idaho, Maryland, and New Jersey; the city attorney's office of the City of San Francisco (and apparently the City of New York and the City of Chicago); and the Brady Center to Prevent Gun Violence.  The appearance of Idaho on this list is surprising, but perhaps the demographic changes as Californians and Washingtonians move there is re-making Idaho politically from a more conservative "Mountain" state into the more liberal "Pacific" state. [Reader Mark Patterson informs us that Idaho withdrew its amicus curiae brief.]

Given the D.C. Circuit's considerable influence in the legal arena, this decision may be the start of a fundamental judicial re-thinking of the Second Amendment, which may result in much greater scrutiny being given by the courts to federal, state, and local gun laws.  Here's hoping that the Supreme Court picks up where Judge Silberman and Judge Griffith left off, and applies their reasoning to the nation as a whole.

Steven M. Warshawsky  smwarshawsky@hotmail.com
The United States Court of Appeals for the District of Columbia Circuit (commonly referred to as the "D.C. Circuit") today (Friday, March 9) issued a very important Second Amendment decision  broadly upholding the right of individuals to possess and use firearms, in particular handguns, for self-defense in the home.

The case involved a challenge, brought by six residents of the District of Columbia, to the District's handgun laws.  These laws largely ban the private ownership of handguns in D.C.  Even where such ownership is permitted (e.g., by retired D.C. police officers), the laws impose onerous restrictions on the use of such handguns, including a requirement that all firearms be kept unloaded and unassembled or bound by a trigger lock or similar device.  (See Decision at 4.)  The plaintiffs wanted to possess "functional firearms" in their homes for purposes of self-defense.  The D.C. guns laws, obviously, frustrated these perfectly reasonable aims.

The case was heard by a three-judge panel, composed of Laurence Silberman (appointed by President Reagan in 1985), Thomas Griffith (appointed by President George W. Bush in 2005), and Karen LeCraft Henderson (appointed by President George H.W. Bush in 1990).

Judge Silberman and Judge Griffith concluded (in an opinion written by Judge Silberman, in classic originalist style) that the Second Amendment protects an individual right to "keep and bear arms" (as opposed to merely a collective right related to the maintenance of state militias); that handguns are among the types of "arms" protected by the Second Amendment; and that the District's handgun laws violate the Second Amendment insofar as they prohibit an individual from owning and using a handgun for self-defense in the home.  Judge Henderson dissented from the decision.

This is only the second time a federal appellate court has decided that the Second Amendment protects an individual right to possess firearms.  The Fifth Circuit also has reached this result.  In contrast, the First, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits all have concluded that the Second Amendment only protects a collective right.  (See Decision at 16.)  The Second Circuit (which covers New York, Connecticut, and Vermont) still has not addressed the issue.  As a resident of New York City, I would love to see the Second Circuit follow the D.C Circuit's lead and declare the NYC gun laws unconstitutional.  Unfortunately, the Second Circuit is very liberal, so this is extremely unlikely to happen.   

Undoubtedly, the D.C. Government will seek reconsideration of this decision by the full D.C. Circuit ("en banc") and/or will appeal to the U.S. Supreme Court.  Unless the D.C. Circuit en banc reverses this decision, I think it is very likely that the case eventually will be heard by the Supreme Court.  Although the Supreme Court has discretion over which cases it agrees to hear, the existence of a disagreement among the various federal appellate courts on a major issue of constitutional law (known as a "circuit split") makes it more likely that the Supreme Court will take action to resolve the disagreement.  Although the D.C. Circuit has the smallest geographical jurisdiction of the federal courts of appeal (it covers only the District of Columbia), it generally is considered the most important of the circuit courts (for several reasons).  Consequently, its decision in this case will be accorded considerable weight when the Supreme Court decides whether or not to hear the case on appeal.

As an aside, it is interesting to note who weighed in as amicus curiae in this case in support of the plaintiffs and the D.C. Government. 

Supporting the plaintiffs were the attorney general's offices of Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Michigan, Minnesota, Nebraska, North Dakota, Ohio, Utah, and Wyoming.  Also supporting the plaintiffs were the Second Amendment Foundation, the Congress of Racial Equality , the American Civil Rights Union , and the NRA Civil Rights Defense Fund

Supporting the D.C. Government were the attorney general's offices of Massachusetts, Idaho, Maryland, and New Jersey; the city attorney's office of the City of San Francisco (and apparently the City of New York and the City of Chicago); and the Brady Center to Prevent Gun Violence.  The appearance of Idaho on this list is surprising, but perhaps the demographic changes as Californians and Washingtonians move there is re-making Idaho politically from a more conservative "Mountain" state into the more liberal "Pacific" state. [Reader Mark Patterson informs us that Idaho withdrew its amicus curiae brief.]

Given the D.C. Circuit's considerable influence in the legal arena, this decision may be the start of a fundamental judicial re-thinking of the Second Amendment, which may result in much greater scrutiny being given by the courts to federal, state, and local gun laws.  Here's hoping that the Supreme Court picks up where Judge Silberman and Judge Griffith left off, and applies their reasoning to the nation as a whole.

Steven M. Warshawsky  smwarshawsky@hotmail.com