On 9 March, 2007 a panel of the District of Columbia Court of Appeals ruled on Parker v District of Columbia: “To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms.” The panel found that the Second Amendment “right of the people to keep and bear arms” is an individual right. The dissenting judge found that since the Amendment refers to “the security of a free state” and the District is not a state, therefore the Amendment does not apply to the District.
I believe that the judge wanted to contrast her decision with that of the majority, and the best way to do that was to adopt the most absurd theory advanced by the District. The other theories were that the Second creates an absolute Constitutional right to join the National Guard, or an absolute Constitutional right to be drafted into the National Guard.
The D.C. ban prohibits persons from owning handguns unless they were owned prior to the 1976 ban. All guns must be disassembled, locked up, and the ammunition stored elsewhere.
No one except the petitioners expected the D.C. Circuit to rule in favor of the petitioners. The prestige of the circuit and experience in dealing with issues of government powers made its action in striking down the D.C. gun ban all the more impressive. This decision expands on the 5th Circuit’s 1999 ruling in U.S. vs. Emerson. That case was confined to Dr. Emerson. Parker strikes down a law as unconstitutional. The full D.C. Court of Appeals declined to reconsider the case. There are several reasons why the full Court might refuse to reconsider, but the main reason is that the full Court believed that the panel got the decision right.
The case is likely to go to the U.S. Supreme Court. This sounds like a good thing, but we are not sure how the Court will receive the case. We thought that the Campaign Finance Reform law was clearly unconstitutional; the Supreme Court did not. We thought that the use of eminent domain to seize property for private developers was clearly unconstitutional; the Supreme Court did not.
The case is likely to go to the Supreme Court, but not certainly. There is a bill in Congress to abolish the D.C. gun ban; if it passes the case may be considered moot. While Republicans introduced the bill, the current Democratic majority does not want to risk a decision upholding the ban in the 2008 election year. A decision in favor of the District’s ban would energize the gun rights community and that would tend to hurt the Democratic Party. Making the issue moot would go against their grain, but would be the safe choice. In order to pass this bill, the anti-gun Democrats would need to pair it with an anti-gun bill in order to give them political cover. The logical partner is Representative McCarthy’s bill HB1022, the new “assault weapon” ban. This bill expands on the old ban to outlaw many new guns, modifications of guns, similar guns, and even pump action shotguns. Guns not deemed to have a “sporting” use would be banned. Under this bill, the fact that a gun is used in a sporting event does not mean that it has a sporting use. It doesn’t have to make sense, but it may become the law.
Since the Parker decision there have been many complaints that it goes against seventy years of decisions based on U.S. v Miller, 307 U.S. 175 (1939). The defendants in Miller were moonshiners. The government did not catch them with untaxed alcohol and as a consolation prize charged them with joint possession of an untaxed sawed-off shotgun in violation of the National Firearms Act (NFA) of 1934.1 The NFA was one of several massive expansions of federal law enforcement in the spring of 1934 following the Union Station Massacre in Kansas City a few months earlier.
In that incident, gangsters, attempting to liberate a confederate, murdered four law enforcement officers. The gangsters wielded their machine guns with more enthusiasm than accuracy. The FBI agents, not normally armed, wielded theirs’ badly. The attack inspired a host of new laws giving vast authority to the FBI. Due to Constitutional concerns, regulation of “gangster weapons” such as machine guns and sawed-off shotguns was given to the Treasury as a prohibitive tax measure.2
In reality, the Court in Miller only ruled that it could not take judicial notice that a sawed-off shotgun is a militia weapon. This decision must be confined to its facts as at the time of the Supreme Court argument Jack Miller was dead and his co-defendant Frank Layton was in prison. Their unpaid lawyer sent a telegram to the Court saying that he had not been paid to handle the appeal and “relied on the prosecution brief”.
In Parker, the Supreme Court might look at a history of the U.S. Army issuing shot cartridges for muskets and smooth bore pistols.3 It might look at the use of shotguns, even sawed-off shotguns, used especially by militia units in all of our wars.4 It might consider the military’s adoption of the XM26 shotgun which is designed to be attached to M-16 rifles. Photos of the gun indicate that it has a barrel of no more than twelve (12) inches.5 It might consult an Army memo regarding the legality of the use of shotguns in warfare which defines the M-79 and M-203 grenade launchers as shotguns on the evidence that buckshot rounds are issued for these weapons.6 The M-79 has a 14-inch barrel7 and the M-203 a 12-inch barrel.8 The Court might consider all of this evidence, but it will not.
There are other Second Amendment cases working through the federal system and I doubt the Court wishes to encourage them. In U.S. v Hollis Wayne Fincher 5:06-cr-50064-JLH-1 the United States District Court for the Western District of Arkansas found the Commander of the Militia of Washington County Arkansas guilty of a number of weapons offenses, mostly home-made machine guns and one sawed-off shotgun. There was also a 25 mm artillery piece, probably because they had some one-inch pipe lying around. This Militia proclaims that while the “so-called national gun rights groups” did nothing they have recovered all the gun rights for the residents of Washington County. The fact that their commander is in prison indicates that they are not as successful as they thought. The defendant was denied the right to argue the Second Amendment to the jury; an appeal is likely.9 Court rules do not allow legal arguments to the jury. However, there appear to have been enough legal motions filed relating to the Second Amendment to support an appeal.
The difference between Parker and all of the other Second Amendment cases is that the other cases are all criminal cases. In every other case the defendant has defied existing law, and seeks to have his defiance legalized. The Parker plaintiffs are all civil petitioners asking politely for the return of their rights. It is possible for criminals to win a constitutional case. Pornographers and annoying religious groups have won First Amendment cases. Drug smugglers have won Fourth Amendment search and seizure cases. Organized crime figures maintaining their silence have won Fifth Amendment cases.
However, it is easier for the Court to restore gun rights to the pure and perfect. During the Civil Rights era, the NAACP carefully selected its plaintiffs and its defendants. The plaintiffs had to be beyond criticism and the defendants indefensible. The District of Columbia gun ban is the most mindlessly repressive and burdensome in the nation.
The D.C. ban prohibits persons from owning handguns unless they were owned prior to the 1976 ban. All guns must be disassembled, locked up, and the ammunition stored elsewhere. The District ban on carrying guns even prohibits carrying a gun from one room of a house to another. Under the circumstances the only purpose of owning a gun is to provide the District with a minority group it is free to hate and revile.
The Parker case has a very strong chance of going to the Supreme Court. A decision will be handed down next year; it may not make sense, but it will be the law.
[ Kevin L. Jamison is an attorney in the Kansas City, Missouri area concentrating in the area of weapons and self-defense. ]
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|Kevin L. Jamison
2614 NE 56th Ter.
Gladstone, Missouri 64119-231
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This information is for legal information purposes and does not constitute legal advice. For specific questions, you should consult a qualified attorney.
- Some other time we shall discuss how two men can possess one gun.
- This was when congress concerned itself over Constitutional concerns.
- Rutledge “Uncle Sam’s Multi-Shot Cartridges” THEGUN REPORT April, 1992 at 16 et seq.
- The Special Warfare Museum at Ft. Bragg had a number of sawed-off shotguns when I was there in the late 1970’s.
- Gourley “Soldier Armed” ARMY February 2006 at 76.
- Parks “Joint Service Combat Shotgun Program” THE ARMY LAWYER October, 1997 at 16 et seq.
- Smith & Smith SMALL ARMS OF THE WORLD 10th Ed Stackpole Company Harrisburg Pa 1973 at 716.
- Department of the Army Technical Manual TM 9-110-221-24 ORGANIZATIONAL, DIRECT SUPPORT AND GENERAL SUPPORT MAINTENANCE MANUAL INCLUDING REPAIR PARTS AND SPECIAL TOOLS LIST FOR LAUNCHER, GRENADE, 40MM, M203, W/E Headquarters, Dept of the Army March 1972 at 3 paragraph 1-6.b.(2).
- A summary of the case, and photos of the machine guns, appears on the militia’s website: www.arkansasmilitia.com.