Laurence Hirsch Silberman

Friday, June 1st, 2007

“When Laurence Hirsch Silberman, Senior Judge of the U.S. Court of Appeals for District of Columbia Circuit, wrote the majority opinion in a case striking down a handgun ban on Second Amendment grounds, he shook up both the legal community and the political community,” said John M. Snyder, CCRKBA Affairs Director, last month in Washington, D.C. “For his scholarship, lucidity and intellectual courage in this historic development, Judge Silberman most certainly merits the distinction of CCRKBA Gun Rights Defender of the Month, and I am most happy to nominate him for this Award.”
Judge Silberman was nominated as a Judge for the Court by President Ronald Reagan on September 11, 1985, and confirmed by the U.S. Senate on October 25, 1985. He received his commission on October 28, 1985, and assumed senior status on November 1, 2000.
For decades preceding Judge Silberman’s historic March 9, 2007 decision, arguments had been going back and forth over whether the Second Amendment recognizes an individual or a collective right to keep and bear arms.
Indeed, for most of American history, the matter had not really been an issue, as it was generally accepted that individual law-abiding American citizens enjoyed the right. Then, as the anti-gun owner movement developed, and gained force about 40 years ago, restrictive gun control proponents, apparently realizing that the Second Amendment amounted to a huge stumbling block for them in their efforts to assert political control of the social environment, developed this “collective right” theory of the Second Amendment. This theory permitted them to maintain that the Amendment applied only to a militia and that there was in fact no individual right to keep and bear arms.
This essentially was the basis for the District of Columbia’s defense of its virtual ban on private handguns in the now-famous Parker v. District of Columbia case, No. 04-7041.
In his equally now-famous decision, Judge Silberman knocked this whole line of reasoning in a cocked hat.
“The Second Amendment,” wrote Silberman, “protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution, and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects 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.”
Judge Silberman noted also that the District of Columbia “asks us to read ‘the people’ to mean some subset of individuals such as ‘the organized militia’ or ‘the people who are engaged in militia service,’ or perhaps not any individuals at all – e.g., ‘the states.’ These strained interpretations of ‘the people’ simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of ‘the people’ across the Bill of Rights.”
Judge Silberman was born in York, Pennsylvania. He received his Bachelor of Arts degree from Dartmouth College and his Bachelor of Law degree from Harvard Law School.
His prior career included U.S. Army Private, 1957-1958; private practice, Honolulu, Hawaii, 1961-1967; Lecturer, University of Hawaii Law School, 1962-1963; Attorney, Appellate Division, National Labor Relations Board, Washington, D.C., 1969-1970; Solicitor of Labor, U.S. Department of Labor, Washington, D.C., 1969-1970; U.S. Undersecretary of Labor, Washington, D.C., 1970-1973; Deputy Attorney General of the United States, 1974-1975; Ambassador to Yugoslavia, 1975-1977; President’s Special Envoy on ILO Affairs, 1976; Senior Fellow, American Enterprise Institute, 1978-1985; Executive Vice President of Strategic Planning, Legal and Government Affairs, Crocker National Bank, San Francisco, California, 1979-1983; and Adjunct Professor of Law, Georgetown Law Center, 1987-present.