Restoring the Second Amendment in Parker v. Columbia

By Alan Gura

"Fear and disinformation have long been the hallmarks of the movement to end private gun ownership. Not surprisingly, the D.C. Circuit's decision in Parker v. District of Columbia, confirming that people have an individual right to keep and bear arms, has elicited outrageous predictions of doom from gun prohibitionists. The Violence Policy Center’s Josh Sugarmann neatly summed up the hysteria in warning that Parker 'may mark the beginning of a long, national nightmare from which we will never recover as a nation.'

Allow me to offer a more optimistic view: Parker not only marks the beginning of the end of gun prohibition, it might also reverse the erosion of our individual rights by re-enforcing the primacy of judicial review and preventing sophists from defining rights out of existence.

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Most Americans are not Second Amendment absolutists, in either the negative or positive sense of the term. We tend to appreciate the individual right to arms without excessive regulatory harassment, understanding the value that firearms provide in securing individuals from violent criminal predation and precluding a dangerous government monopoly on force. We likewise understand that not all weapons should be possessed by all people at all times.

In practical terms, Parker’s correct interpretation of the Second Amendment – a cherished individual right which, like all other rights, is subject to some measure of regulation – happily coincides with the public’s appreciation of constitutional liberty.

Parker is thus a bitter pill for prohibitionists who have grown comfortable invoking the language of moderation to conceal their agenda. The laws struck down in Parker prohibited law abiding adult citizens from having any functional firearms, and all handguns, in their homes. Such laws are extremist and absolute, far from reflecting ‘common sense,’ ‘safety,’ or ‘moderation.’ Critics of Parker’s immediate result are outside the mainstream of thinking on gun control. And they know that Parker’s recognition of the individual right forecloses an incremental regulatory assault on private firearms ownership just as it forecloses Washington, D.C.’s complete ban. Hence their despair.

The individual right to arms will not bring (additional) anarchy to the streets of Washington any more than the First Amendment’s free exercise clause has spawned a wave of ritualistic human sacrifice. The ultimate contours of the Second Amendment right will never be fully defined, just as no single court decision will for all time resolve the precise boundaries of free speech under the First Amendment or a ‘reasonable search’ under the Fourth. Parker means merely that courts will evaluate gun laws the same way that courts review laws touching upon other constitutional rights: by balancing the fundamental individual right at stake against the purported regulatory interest.

At times, the government interest will prevail. For example, laws barring felons from accessing guns will undoubtedly be upheld, and metal detectors for airline passengers are here to stay. But complete bans, arbitrary and capricious interference with the right to arms, and oppressive regulations based on flimsy reasoning with no apparent empirical support or genuine public benefit will yield to the individual right – as they should.

Parker’s benefits also extend well beyond the narrow issue of gun regulation. This is not a forum for me to review the immense literature debunking the so-called ‘collective right’ theory of the Second Amendment. Suffice it to say that the theory tries to jam a square constitutional peg into anti-gun activists’ round policy hole. Frustrated by the Constitution’s inescapable command, the government’s efforts generated gems such as this, from the opposition to our summary judgment motion in Parker:

Conditions and practical considerations, not arcane legal theories and historical excursions, should determine the outcome of cases like the present and the constitutionality of statutes like those at issue here.

There you have it. Who needs the Constitution, anyway? If the government believes it’s practical, then let’s consider it constitutional. P eople generally sympathetic to other civil rights, but who are personally uncomfortable with guns or skeptical of the Second Amendment’s utility, should pause before welcoming this sort of logic to the Bill of Rights. The alarming theme of expedience-over-law permeates the government’s pending petition for en banc review (emphasis added):

How best to control gun violence is a complex topic, with many competing, passionately held views. The politically accountable legislatures . . . . are the best fora for considering such competing views. Whether or not they are correct, constitutional rulings like that of the panel majority severely limit what measures the political branches can take . . .

“Whether or not they are correct?” Imagine if that chestnut were applied to other Constitutional provisions. The Second Amendment reflects one of many policy preferences enshrined in our basic law. None is universally popular. Could the Fourth Amendment be adopted today, with the full acquiescence of drug- and terror- warriors? It’s mid-April once again: is everyone still happy with the Sixteenth Amendment? Even the creation of a federal district lacking voting representation in Congress remains controversial today.

Contrary to what city officials believe, it still matters ‘whether or not [courts] are correct’ in stopping the government from overstepping its constitutional bounds. Gun rights advocates look forward to Parker’s positive impact on public safety. Striking down the gun ban will raise the risk to home invaders in Washington, and bring peace of mind to many of the city’s vulnerable residents. But Parker’s greater ameliorative effects on lawlessness may lie in the decision’s affirmation of judicial review as a check on government officials who presume that their ‘practical considerations’ trump the Constitution."

Alan Gura, [Gura & Possessky, PLLC], is lead counsel for plaintiffs in Parker v. District of Columbia.