Parker v. District of Columbia, No. CIV.A.03-0213 EGS.

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtSullivan
Citation311 F.Supp.2d 103
PartiesShelly PARKER, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
Decision Date31 March 2004
Docket NumberNo. CIV.A.03-0213 EGS.

Page 103

311 F.Supp.2d 103
Shelly PARKER, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.
No. CIV.A.03-0213 EGS.
United States District Court, District of Columbia.
March 31, 2004.

Alan Gura, Alan Gura PLLC, Washington, DC, for Plaintiffs.

Daniel Albert Rezneck, Jonathan F. Potter, Office of Corporation Counsel, Washington, DC, for Defendants.

Eric Mogilnicki, Jr., Wilmer Cutler & Pickering, David M. Gossett, Mayer, Brown, Rowe & Maw, Washington, DC, for Amicus.

MEMORANDUM OPINION

SULLIVAN, District Judge.


I. Introduction

Plaintiffs in this case are six residents of the District of Columbia who wish to possess a handgun or an assembled long gun in their homes for self-defense but do not do so because they "fear arrest, criminal prosecution, and fine." Compl. at ¶ 1, 3, 5, and 6. Plaintiff Heller has applied for a permit to possess a handgun in his home and has been rejected. Compl. at ¶ 2. The other five plaintiffs have not applied for a permit. None of the plaintiffs have asserted membership in the District of Columbia Militia.

Plaintiffs argue that D.C.Code § 7-2502.02(a)(4)1, barring registration of

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handguns, D.C.Code § 7-2507.022, barring the possession of firearms within the home or possessed land, and D.C.Code §§ 22-45043 and 4515, forbidding the carrying of firearms within one's home or possessed land without a license, ("D.C. gun control laws") should be permanently enjoined because these laws violate the Second Amendment, which establishes a fundamental individual right to bear arms. Plaintiffs are asking this Court to grant Summary Judgment in their favor.

Defendants in this case are the District of Columbia and Anthony Williams, Mayor of the District of Columbia. Defendants argue that the Second Amendment does not provide an individual right to bear arms. Defendants ask the Court to grant their Motion to Dismiss.

II. Legal Standard

When considering a Motion to Dismiss, the Court construes the facts in the complaint as true and construes all reasonable inferences in the light most favorable to the plaintiff. See Swierkiewicz v. Sorema, 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). A Motion to Dismiss is granted and the complaint dismissed only if no relief could be granted on those facts. See Sparrow v. United Air Lines Inc., 216 F.3d 1111, 1114 (D.C.Cir.2000).

In reviewing a Motion for Summary Judgment, the Court must first determine if there are genuine issues of material fact. Shields v. Eli Lilly & Co., 895 F.2d 1463, 1465 (D.C.Cir.1990) (citing Fed.R.Civ.P. 56(c)). Summary judgment should be granted only if the moving party has shown that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. Legal Analysis

A. Supreme Court Analysis of the Second Amendment Right

Plaintiffs move for summary judgment in this case on the grounds that the D.C. gun control laws are unconstitutional because they violate the Second Amendment to the U.S. Constitution. Defendants have filed a Motion to Dismiss Plaintiffs' Complaint because plaintiffs have not made any showing that their possession or use of a firearm has some reasonable relationship to the preservation or efficiency of a well-regulated Militia.

The Second Amendment provides:

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.

U.S. CONST. amend. II. The U.S. Supreme Court has not considered a direct Second Amendment challenge since its 1939 decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). In Miller, the district court granted the defendant's Motion to Dismiss his indictment under the National Firearms Act for unlawfully transporting in interstate commerce an unregistered double barrel 12-gauge shotgun with a barrel of less than 18 inches, on the grounds that the Act was "in contravention of the Second Amendment

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to the Constitution." United States v. Miller, 26 F.Supp. 1002, 1003 (1939).

The U.S. Supreme Court, on appeal of the dismissal, held that

In the absence of any evidence tending to show that possession or use of a `shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Id. at 178, 59 S.Ct. 816.

The Court noted that, as originally adopted, the U.S. Constitution reserved to the states "the Authority of training the Militia according to the discipline prescribed by Congress." Id. (citing U.S. CONST. art. 1 § 8). Accordingly, the Court reasoned that it was "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." Id. at 178, 59 S.Ct. 816.

The Court went on to explain the nature and purpose of the Militia in the time when the Second Amendment was enacted. "The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion." Id. at 179, 59 S.Ct. 816. When the Militia was called into service, these men were expected to appear bearing arms, which they supplied themselves. Id.

Although the Supreme Court decided Miller sixty-five years ago, there has recently been some debate concerning whether Miller should be construed as interpreting the Second Amendment to guarantee either: (1) a collective right of the states to arm the Militia; or (2) a limited individual right to bear arms but only as a member of a state Militia; or (3) an individual right to bear arms for non-Militia use.

This Court reads Miller, in concert with the vast majority of circuit courts, as rejecting an individual right to bear arms separate and apart from Militia use. See id. at 179 — 182, 59 S.Ct. 816; United States v. Emerson, 270 F.3d 203, 218-19 (5th Cir.2001). In doing so, this Court incorporates by reference section III(2)(A) Early Judicial History of the Second Amendment and III(2)(B) Modern Second Amendment Jurisprudence of Judge Reggie Walton's opinion in Seegars v. Ashcroft, 297 F.Supp.2d 201 (D.D.C.2004) (Amended January 29, 2004).

The Supreme Court has twice been presented with the opportunity to re-examine Miller and has twice refused to upset its holding. In Lewis v. United States, the Court concluded that a statute that criminalizes possession of a firearm by a convicted felon "[did not] trench on any constitutionally protected liberties." 445 U.S. 55, 65 n. 8, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980)(citing Miller and three lower court cases rejecting Second Amendment challenges.) Further, the Court dismissed an appeal in which a state court held that the Second Amendment did not confer a right to bear arms unrelated to Militia service for "want of a substantial federal question." Burton v. Sills, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed.2d 748 (1969). Had the Court thought that the Second Amendment created an individual right that was infringed, the Court could not have reached these conclusions.

Plaintiffs suggest that Miller may simply have proposed a test to separate weapons "

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covered" by the Second Amendment from weapons "not covered" by the Second Amendment. Cf. Fraternal Order of Police v. United States, 173 F.3d 898, 906. (D.C.Cir.1999)(raising the question of the potential meaning of the Miller test).

While plaintiffs' arguments are not without merit, if the Supreme Court truly thought that Miller was being read to stand for a proposition much greater than the Court intended, it surely would have taken one of the opportunities it has had in the last sixty-five years to grant certiorari and correct the misunderstanding. This Court is thus reluctant to accept plaintiffs' reading of Miller.

B. Circuit Courts Analysis of the Second Amendment Right

Plaintiffs rely primarily on the Fifth Circuit's decision in United States v. Emerson to support their contention that the Second Amendment establishes a fundamental individual right to bear arms, regardless of membership or service in an organized Militia. 270 F.3d 203 (5th Cir.2001). In Emerson, the Fifth Circuit held that the ban on carrying a pistol while subject to a restraining order was reasonable. Id. at 260. The two judge majority went on to conclude that the Second Amendment guarantees an individual's right to keep and bear arms for self-defense, defense of property, game hunting, and to enable him to be called on as needed by a state to resist oppression and tyranny by the federal government and the federal standing armies, so...

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5 practice notes
  • Dist. of Columbia v. Heller, No. 07–290.
    • United States
    • U.S. Supreme Court
    • June 26, 2008
    ...firearms within the home.” App. 59a. The District Court dismissed respondent's complaint, see Parker v. District of Columbia, 311 F.Supp.2d 103, 109 (2004). The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable ......
  • N.Y. State Rifle & Pistol Ass'n, Inc. v. Cuomo, No. 13–CV–291S.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • December 31, 2013
    ...the case because it found that the Second Amendment conferred no individual right to bear arms. SeeParker v. District of Columbia, 311 F.Supp.2d 103, 109 (D.D.C.2004). 8. Although the Bill of Rights, including the Second Amendment, originally applied only to the federal government, see Barr......
  • Scherr v. Handgun Permit Review Bd., No. 780
    • United States
    • Court of Special Appeals of Maryland
    • July 11, 2005
    ...court to adopt the view that the Second Amendment gives an individual the right to bear firearms. See Parker v. District of Columbia, 311 F.Supp.2d 103, 107 (2004), and cases therein cited. The majority of courts have interpreted Supreme Court precedent, and the Constitution itself, as appl......
  • James v. England, No. CIV.A. 03-1835RBW.
    • United States
    • U.S. District Court — District of Columbia
    • August 27, 2004
    ...Compl. ¶¶ 63, 64, and 65 (seeking relief for the alleged discriminatory acts based upon the RIF). See Parker v. District of Columbia, 311 F.Supp.2d 103, 104 (D.D.C.2004) ("the Court construes the facts in the complaint as true and construes all reasonable inferences in the light most favora......
  • Request a trial to view additional results
6 cases
  • Dist. of Columbia v. Heller, No. 07–290.
    • United States
    • U.S. Supreme Court
    • June 26, 2008
    ...firearms within the home.” App. 59a. The District Court dismissed respondent's complaint, see Parker v. District of Columbia, 311 F.Supp.2d 103, 109 (2004). The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable ......
  • N.Y. State Rifle & Pistol Ass'n, Inc. v. Cuomo, No. 13–CV–291S.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • December 31, 2013
    ...the case because it found that the Second Amendment conferred no individual right to bear arms. SeeParker v. District of Columbia, 311 F.Supp.2d 103, 109 (D.D.C.2004). 8. Although the Bill of Rights, including the Second Amendment, originally applied only to the federal government, see Barr......
  • Scherr v. Handgun Permit Review Bd., No. 780
    • United States
    • Court of Special Appeals of Maryland
    • July 11, 2005
    ...court to adopt the view that the Second Amendment gives an individual the right to bear firearms. See Parker v. District of Columbia, 311 F.Supp.2d 103, 107 (2004), and cases therein cited. The majority of courts have interpreted Supreme Court precedent, and the Constitution itself, as appl......
  • James v. England, No. CIV.A. 03-1835RBW.
    • United States
    • U.S. District Court — District of Columbia
    • August 27, 2004
    ...Compl. ¶¶ 63, 64, and 65 (seeking relief for the alleged discriminatory acts based upon the RIF). See Parker v. District of Columbia, 311 F.Supp.2d 103, 104 (D.D.C.2004) ("the Court construes the facts in the complaint as true and construes all reasonable inferences in the light most favora......
  • Request a trial to view additional results

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