Last March, however, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court, ruling 2-1 that “the Second Amendment protects an individual right to keep and bear arms,” and striking down the gun laws as unconstitutional. Writing for the court, Judge Laurence H. Silberman held: “[T]he activities protected by the Amendment “are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” Silberman noted the reasonableness of the appellants’ claims:
Essentially, the appellants claim a right to possess what they describe as “functional firearms,” by which they mean ones that could be “readily accessible to be used effectively when necessary” for self-defense in the home.
The city council, led by Mayor Adrian Fenty, was outraged and immediately announced its intent to appeal to the Supreme Court. In addition to the anti-gun brigade, Fenty enjoyed the support of the editorial boards of two newspaper giants.
A Washington Post editorial called the ruling “radical” for giving “a new and dangerous meaning to the Second Amendment … an unconscionable campaign … to broadly reinterpret the Constitution so as to give individuals Second Amendment rights. The New York Times said the court was “interpreting the Second Amendment broadly.”
One reason the Supreme Court may grant review is because the circuit courts are divided on the meaning of the Amendment. Only the Fifth Circuit agrees with the D.C. Circuit that the Amendment is an “individual” right. The other circuits have held that private citizens in the states have no Second Amendment claim when they challenge state and local gun-control ordinances. The Supreme Court has yet to apply the Amendment uniformly to the states through the Due Process Clause of the 14th Amendment, as it has done with almost all of the Bill of Rights.
If the Supremes don’t grant review, the decision by the D.C. Circuit will stand, but it will be a hollow point victory except in the 10 square miles of the nation’s crime capital.
Let’s hope the Supremes affirm what Judge Silberman rightly recognized: “The wording of the operative clause also indicates that the right to keep and bear arms was not created by government, but rather preserved by it.” The right “pre-existed the Constitution like ‘the freedom of speech.’” It is, after all, “a natural right to keep and bear arms.”