Like many cities, the District of Columbia has a crime problem. It is getting worse, not better, as a new wave of drugs drives new gang disputes. Unlike most cities, the District of Columbia has a real and present concern about terrorism. The Pentagon was hit on September 11, and the district remains at the top of any target list.
Sensibly, the district has passed one of the most strict gun control laws in the country. It bans possession of handguns. The district's police are the leading supporters of this law. They want the ability to arrest anyone carrying a weapon, or stockpiling them in their homes, preferably before the shooting begins. The district doesn't manufacture guns. It doesn't manufacture drugs either. Both are imported, often by what might be termed terrorist gangs. For the overwhelming majority of district residents, tough gun laws just make sense.
But last week, a federal appeals court in a bizarre two to one decision, overturned the district's long-standing handgun ban as a violation of the Second Amendment of the Constitution. The majority ruled that the district cannot prevent people from keeping handguns in their homes. The ruling also struck down a requirement that gun owners keep their guns unloaded and disassembled. Federal Judge Laurence Silberman wrote the opinion for the court. He doesn't care about the threat posed by gangs bearing guns. He's impervious to the notion of terrorist cells stockpiling easily concealed armaments in preparation for their attacks. He doesn't care that the district's democratically elected government passed the law it thought in the best interest of the district. He certainly scorns the notion that the vast majority of district residents support strict arms control.
The court's ruling is the first time any federal appeals court has struck down a portion of a gun law on the grounds that it violated the Second Amendment. The court's argument is preposterous to any scholar who cares a wit about the original intent of the Founders. The Second Amendment 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." As Justice Karen LeCraft Henderson, a Republican appointee wrote in her dissent, the Second Amendment rights relate to "those Militia whose continued vitality is required to safeguard the individual States." In those days, the citizen militia was central to state's rights. The amendment was a reaction to the attempt of the British King to suppress the state militias and an expression of the Founder's concern that an overbearing federal government might suppress the militias to bolster their own power.
It is states and localities that generally regulate the right to bear arms. In much of the country, where rifles are commonplace and hunting is a tradition, gun laws are pretty lax. In many urban areas, where crime is a problem, citizens demand stricter laws. Both are a pretty good reflection of the democracy.
Judge Silverman's ruling, however, tramples democracy – even as it distorts the Founders' intent. The concern for a "well regulated militia" is far removed from the judge's ruling, which would make sensible gun control impossible in our nation's urban areas. (Ironically, since the District of Columbia is deprived of statehood, it's arguable that the Second Amendment shouldn't apply to it, no matter what its interpretation).
Not surprisingly, the district's energetic new mayor, Mayor Adrian Fenty, harshly criticized this judicial usurpation, saying that it "flies in the face of gun laws that have helped decrease gun violence in the District of Columbia. The district is likely to appeal for a hearing before the full Appeals Court – and if necessary an appeal to the Supreme Court.
The bonehead decision not only ignores precedent – it reveals the real threat of a court system packed with right-wing zealots. Judge Silberman is a notorious right-wing operative, deeply compromised by his partisan involvement in the effort to smear Bill Clinton. He is the kind of justice that George Bush denounces regularly – a judicial activist, prepared to elevate his own political ideology over that of the elected representatives of the people, and eager to engage in judicial lawmaking if it fits his ideological bent.
This new right-wing judicial activism is yoked to the extreme right causes of the National Rifle Association, the anti-choice lobby and the corporate boardrooms. They are prepared to trample the laws enacted by democratically elected legislatures to implant their policies from the bench. The U.S. courts are now packed with these ideologues. And the decision last week shows that the civilizing advances of the last decade — from civil rights to gun control, worker rights and women's rights — are now at risk from this marauding horde.
Rev. Jesse Jackson, a longtime civil rights activist, is the founder of the Rainbow/PUSH Coalition.
