D.C. resists expansion of gun case review
The District of Columbia government on Friday opposed a move by D.C. residents to expand the scope of Supreme Court review of the dispute over the city’s strict ban on private possession of handguns. In a new brief, city officials argued that the Justices should consider only the constitutionality of the handgun law under the Constitution’s Second Amendment. That is the sole issue raised in the city’s petition in D.C. v. Heller (07-290). D.C. residents have filed a cross-petition (Parker v. District of Columbia, 07-335; the city brief filed on Friday was in opposition to that filing. The Court has not yet acted on either appeal.
In the D.C. Circuit Court’s March 9 ruling striking down the city law, it found that only one local resident — Dick Anthony Heller — had a legal right to sue, thus excluding five other residents. The challengers favor Court review of the Second Amendment issue, but the five other residents filed their own appeal urging the Court to overturn the denial of standing to those five, by examining Circuit precedents that they argue limit the right to sue.
Responding on Friday, city officials argued that “granting the cross-petition would unnecessarily complicate the pending litigation on the meaning of the Second Amendment.” Since the Circuit Court upheld Heller’s standing (which the city does not challenge), the officials said the city “would have little interest” in defending the Circuit Court’s denial of standing to the other five, even if the Court were to hear their case. With Heller in the case, it added, the other five “have little if anything to gain” in their appeal, since any ruling in the city’s case will bind it “as against all of its citizens.”
On the specific question of whether the Court should grant the cross-petition, the new brief opposes that both on jurisdictional grounds and on the merits. On the merits, it says that the Supreme Court denied review on Jan. 23, 2006, in an earlier D.C. case seeking to raise the question posed in 07-335. The 2005 denial came in Seegars v. Gonzales (05-365), an appeal from a Circuit Court ruling in February 2005. The city noted that the U.S. Solicitor General opposed review in that case.
In Seegars, which also involved a challenge to the D.C. handgun ban, the Circuit Court, by a 2-1 vote, found no standing by any of the challengers at that time. When the en banc Court denied rehearing, Circuit Judge John G. Roberts, Jr., was one of four judges who wanted to reconsider the case; he did not join any of the dissenting opinions on the rehearing issue, however. He had become Chief Justice by the time the case reached the Supreme Court, and he declined to take part when review was denied. His participation in the earlier case, however, would not appear to require him to avoid taking part in disposing of the new appeals. It is unclear whether his vote on the Circuit Court on the rehearing question about standing provides any hints about how he feels about the core Second Amendment issue.
The city brief on the standing issue disputes that there is a conflict between the Circuit Court’s view on standing questions and that of other appeals courts, or the Supreme Court.
The Justices will consider the petition and cross-petition together. If each side files a reply brief in its case, the whole package probably will be considered at a Conference in early November.
(Disclaimer: Thomas Goldstein of Akin Gump is on the legal team representing the city in both the petition and cross-petition. The author of this post, however, is not employed by the law firm, and writes independently of any law practice.)
The city is lying if it claims that it “’would have little interest’ in defending the Circuit Court’s denial of standing to the other five, even if the Court were to hear their case.”
Heller only raised issues relating to handguns. The other plaintiffs raise issues related to the restrictions on possession of rifles and shotguns. The city will actively oppose anything that might end the unconstitutional restrictions it has placed on possession of long guns.
Comment by Terry Mast — October 13, 2007 @ 8:48 am
Seems DC is trying to create a blind spot in the case: insisting that long guns are “legal” (despite being disabled to the point of little use more than tubes & springs), they claim self-defense therewith would not be prosecuted (despite no legal way to do so). Heller’s focus on handguns facilitates this blind spot; DC must keep the other Parker plaintiffs out of the case lest they directly raise the truth (to wit: expose the lie) of DC’s practical ban on long guns.
DC/Fenty, please don’t play dirty. If dirty wins out over clear clean law, only badness can follow.
Comment by Carl Donath — October 14, 2007 @ 2:10 pm
“Shaft”-style badness?
Comment by James N. Markels — October 15, 2007 @ 3:56 pm
James,
Shush your mouth.
Comment by Jacques MacKenzie — October 15, 2007 @ 5:58 pm
The question which really needs to be answered is this nonsense about the “militia” that liberals keep harping about………………..
The Court should take the case and at least identify whether there is an individual right contained within the 2nd -or- not……..
The Bradys and the NRA are both paranoid of a conclusive holding…… one way or the other…
Comment by Jeffrey Waters — October 26, 2007 @ 11:44 am
Regarding the allegation that “the city would have little interest in defending the Circuit Court’s denial of standing to the other five.”
Short answer: baloney.
Long answer: D.C. has been enjoying immunity from lawsuits under the D.C. Circuit case law that says that D.C. can threaten people with prosecution under an unconstitutional law, and an individual can’t raise the law’s unconstitutionality until-and-unless he or she is already convicted of violating the unconstitutional law.
If Heller’s co-plaintiffs are allowed standing, it will automatically change the D.C. circuit law, so that D.C.’s ability to threaten people with an unconstitutional law, and still be immune from lawsuits, will be eliminated. I expect D.C. to fight the standing issue more vigorously than the Second Amendment issue.
Comment by Robert Hilton — October 31, 2007 @ 12:33 pm