Second Amendment case reaches Court; cross-appeal coming
UPDATE Wednesday p.m.
The Court has now docketed District of Columbia v. Heller as 07-290.
Analysis
(The petition can be downloaded here, and the appendix is here. It will be assigned a docket number shortly. A news release discussing the filing can be found here.)
Relying upon strong rhetoric and the argument that access to handguns is a direct threat to peoples’ lives in the Nation’s capital, the District of Columbia government urged the Supreme Court on Tuesday to spare the city’s gun control law from nullification under the Second Amendment. “Having a handgun, whether in the home or outside it, comes at the expense of the safety of those who may be victims,” the petition for review argued. “Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die.”
The local residents who successfully challenged the local handgun law have already said they will join in urging the Supreme Court to hear and decide the case. The case is being filed early enough that, if granted, it could be decided in the current Term. Absent extensions of time, briefing on the issue of granting or denying review could be completed by mid-October.
UPDATE 11:50 a.m. Five of the six D.C. residents who filed the original challenge, and whose “standing” to sue was denied by the D.C. Circuit Court, plan to file a cross-appeal to the Supreme Court later this week, seeking to revive their right to have brought the case, according to one of their counsel, Robert A. Levy, senior fellow in constitutional studies at the Cato Institute. One of the six, Dick Anthony Heller, was found to have “standing.”
Tuesday’s appeal in District of Columbia v. Heller challenges a March 9 ruling by the D.C. Circuit Court, striking down the Washington, D.C., law adopted in 1976 that generally bars the registration of any handgun. Thus, the law does not allow anyone to possess a handgun for private, personal use, in any setting, including a private home. Although the Circuit Court’s 2-1 ruling suggested that the District might be able to adopt some “reasonable” form of gun control, the sweeping language of the opinion appeared to mean that the Second Amendment would stand in the way of any regulation of any weapon that qualifies as a firearm. The Amendment’s “right to keep and bear arms” protects a right to have a gun in one’s own home for personal use, the Circuit majority ruled.
The petition raises a single question: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.”
Worded that way, the question appears to offer the Justices an option of deciding the case on narrow grounds, limited to the urban setting of a single city with a history of handgun-related violence, with citizens still able to have some other kinds of guns for self-defense in case of need.
But the reasoning spread through the petition would also seem to offer the Court a chance, if it wished to take it, to speak broadly on the meaning of the Second Amendment — including defining the scope of the Amendment’s restriction on actions by Congress and what that means to states’ power to enact gun control laws or protect gun owners’ rights without federal interference. The Court has never ruled that the Second Amendment operates directly against state governments so as to limit their legislative power to regulate access to guns. The petition suggests an interpretation that would have the Second Amendment insulate the states from congressional second-guessing about gun rights that the states choose to recognize or to limit.
The Supreme Court has not ruled on the scope of the Second Amendment in 68 years — not since U.S. v. Miller in 1939.
Washington, D.C., is a city that is often described as a “crime capital” because of the high incidence of murders and other assaults. The petition, without applying any such label to the city, suggests that the need to regulate handguns is a life-or-death matter there. “Absent review by this Court,” it contends, “the District of Columbia — a densely populated urban locality where the violence caused by handguns is well-documented — will be unable to enforce a law that its elected officials have sensibly concluded saves lives.”
It notes that the city has been regulating guns since 1858, and goes on to document the problems the local City Council discerned when it adopted the current handgun ban 31 years ago. At the time, it said, handguns were used in 88 percent of armed robberies and 91 percent of armed assaults, and in one year — 1974 — “were responsible for 155 of the record 285 murders” in the city.
Handguns, it sums up, “present a singular danger,” leading the Council to adopt a freeze on the “pistol population” within the District.
In challenging the D.C. Circuit ruling nullifying that law, the petition contends that it “drastically departs from the mainstream of American jurisprudence,” creating a conflict with decisions of eight other federal Circuit Courts, as well as the highest local court in the city — the D.C. Court of Appeals. “Only this Court can resolve these conflicts about the central meaning of the Second Amendment,” it says.
It contends the Circuit Court majority made three errors: first, “its characterization of the nature of the Second Amendment right (which is linked to state militias)”; second, “its understanding of the scope of the right (which protects against federal interference with state militias and state gun laws)”; and, third, “its conclusion that the right, however it might be construed, is infringed by the District’s law (which is targeted at the special dangers created by handguns and allows the possession of rifles and shotguns).” It argues that “each error independently requires reversal.”
The petition makes no attempt to challenge the Circuit Court finding that one local resident, Dick Anthony Heller, had “standing” to bring the challenge to the city’s handgun ban. Heller contended that he lives in a “high-crime” neighborhood and that the ban bars him from “possessing a functional handgun…for self-defense within his home.” He had applied to register a handgun, but that was denied. (He sued in that capacity, not in his role as a special police officer who works at the Federal Judicial Center near Capitol Hill in Washington.)
UPDATE 7 p.m. The District’s Attorney General, Linda Singer, announced on Tuesday that, if the case is granted review, the District’s argument will be presented by Alan Morrison, an experienced Supreme Court advocate and now special counsel to Ms Singer.
(Disclaimer: Thomas Goldstein of Akin Gump is on the District’s petition. The author of this blog is not employed by the law firm, and writes independently of any law practice.)
Thank you for (another) excellent write-up, Lyle, and for the link to the filing.
Comment by David.Huberman — September 4, 2007 @ 1:35 pm
D.C.’s argument is all-purpose!:
“Whatever right the ______ Amendment guarantees, it does not require the [government] to stand by while its citizens die.”
In any event, the write-up is excellent, thanks for it!
–Joseph Henchman
Comment by jdhenchman — September 4, 2007 @ 4:48 pm
…which protects against federal interference with state militias and state gun laws…
This of course offers the alternative route for the pro-gun community if the Court does reverse. Get some states to pass militia acts that overturn parts of Federal law, citing those States’ “collective right” to arms.
At the same time as having Congress re-amend the Constitution of course.
Winning this case could be worse for the gun-control lobby than losing it.
Comment by J_Griffith — September 4, 2007 @ 9:36 pm
Henchman, please read the brief, not the press release. As I read it, it makes the following arguments:
Even the 1st Amendment is subject to reasonable time, place and manner restrictions. The background of handgun crime against which the law was enacted is just flavor, like the recitation of the grisly facts of a death penalty case when they are outside the actual legal issue being raised.
Comment by Roger Friedman — September 5, 2007 @ 7:01 am
Since the DC brief emphasizes that the purpose of the law is to reduce violent crime, it’s a good bet that whether it has in fact had that effect will end up being an important issue, and iirc the research findings on that are mixed.
Of course those findings shouldn’t matter, since this is a constitutional issue, and if A2 protects the right to own a handgun it does so independent of whether laws banning handguns reduce crime or not, but it likely will anyway.
Comment by steve jaros — September 5, 2007 @ 9:57 am
Roger,
The only “reasonable time, place and manner restrictions” that could or should pass constitutional muster are restrictions that are targeted at secondary effects unrelated to the natural tradeoffs that will occur by adopting any constitutional right at issue. So anti-noise or crowd control ordinances are typically constitutional, but you can’t put “reasonable time, place, and manner” restrictions on speech in an effort to control harms that the speech itself might propel. No one would argue that you could “reasonably” restrict the right of assistance of counsel in order to make sure the defendant doesn’t get too much of a chance at trial by limiting prohibiting defendants from hiring more than two lawyers. Clearly, the adoption of a constitutional right carries an implicit adoption of its values as opposed to the countervailing ones, guaranteeing the values adopted in the right to prevail to the full extent of the language of the right, with no exceptions to be allowed except to allow for controlling tangential issues not already traded away upon adoption of the right at hand. Since the second amendment contains no “reasonableness” limitation, it can’t logically be held to any sort of balancing test that the fourth amendment routinely encounters, insofar as the latter’s protection is traded off against the opposing goal of criminal justice. If SCOTUS adopts the approach that you endorse, it would be the first time in the post-Brandenburg era in which it decides that an amendment explicitly insulating a certain right against fears that it might be abridged in the name of protecting society can henceforth be abridged for the very same purpose, subject to whatever arbitrary limits the court chooses to carve out of course.
P.S. It would seem to me, seeing the work that Mr. Goldstein has done in the past on behalf of individuals asserting there rights against government infrigemment, that he likely shares the views of Justice Black in that “Constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.” This is a sentiment I whole-heartedely agree with, and I find it curious that Mr. Goldstein appears to veer from this path in representing the District of Columbia in its attempt to convince SCOTUS to adopt a narrow construction.
Comment by Jacob Berlove — September 5, 2007 @ 11:54 pm
Jacob –
Thanks for your thoughtful comment. I mentioned “time, place and manner” simply to indicate that even fundamental rights are subject to regulation.
I think you are misconstruing the city’s third argument. It maintains not that the law is reasonable because it prevents violence, but that it is reasonable because it permits long guns. It puts handguns in a separate category of extremely dangerous weapons and subjects them to stricter regulation. This is similar to special categories for and stricter regulation of assault rifles, grenade launchers, bazookas, missiles and explosive devices.
If we must compare the First and Second Amendments, then this case is sort of like Rock Against Racism. Even though control of sound levels was part of the protected artistic expression, the impact of the sound levels on others justified a limitation on the scope of that control. As an erstwhile MC5/Ramones fan, I may feel oppressed by the state when I have to keep the volume down, but hey, it’s a purpose of the state to limit the public behavior of its subjects for the common weal.
Comment by Roger Friedman — September 6, 2007 @ 7:12 am
Roger Friedman wrote:
“I think you are misconstruing the city’s third argument. It maintains not that the law is reasonable because it prevents violence, but that it is reasonable because it permits long guns.”
Perhaps it’s both? From the petition:
“The District’s decision to address these handgun specific problems by banning the private possession of handguns was more than reasonable, because handgun bans work. Controlled research demonstrates a significant relationship between handgun ownership in particular and violent crime.”
But to my knowledge, the District is overstating its case. The research results are conflicted on this point.
It will surprise me if “social science research”, in the form of studies on the impact of handgun bans on violent crime rates, doesn’t play a big role in this case.
Another issue that i think will be prominent is whether the District’s ban is “narrowly tailored” to achieve its goal. We often see that language in affirmative action cases, and i think it will appear here as well. For example, in their petition, DC says:
“The Council had good reason to conclude that less restrictive measures were insufficient and would continue to be so … Safety mechanisms, while helpful, can prove technically inadequate, and compliance rates with mandatory safety measures are spotty.”
So in determining the “reasonableness” of the ban, the court (if it is inclined to hold that there is some kind of right to own handguns, but one subject to reasonable time/place/manner restrictions) might look at whether these claims about the inadequacy of less restrictive alternatives are true or not.
Comment by steve jaros — September 6, 2007 @ 11:28 am
Roger,
Thank you very much for the clarification. I still don’t see,however, how this law can be sustained as merely a “regulation” of the right. Rock against Racism is indeed a perfect example of where a right may be regulated. The first amendment was passed to protect the right to speak against fears of the government regulating the right on the grounds that some of the speech is deangerous. That potential future argument was conceded on grounds that speech must be given the benefit of the doubt. No one was concerned that the government might make execessive regulations on grounds of noise, so noise-control ordinances will often be sustained when there are ample alternative channels open, etc.
The individual rights interpetation of the second amendement holds that the right to bear arms was written into the constitution in order to protect the rights of citizens to some sort of self defense (individual and/or against a government tyranny). It was passed due to fears theat the government might restrict the right on the grounds that it is too dangerous to allow citizens to carry arms. So if there are secondary effects from excercise of the right that could be legitimately found, e.g. a study that shows a particular risk of some airborn disease increasing when a certain type of weapon (that perhaps contains asbestos) is carried around, it would make sense to uphold the regulation. But to restrict possession of certain types of weapons on the grounds that they are so dangerous that private citizens can’t be trusted with them is to abridge the right at the very point it was passed to protect.
Comment by Jacob Berlove — September 6, 2007 @ 12:53 pm
Another issue that i think will be prominent is whether the District’s ban is “narrowly tailored” to achieve its goal.
Why do you think “narrow-tailoring” analysis will be a focus of this case, Steve?
Comment by Jacques McKenzie — September 6, 2007 @ 12:53 pm
er, please read the rest of the post. it’s a good habit to have, in general.
Comment by steve jaros — September 6, 2007 @ 11:36 pm
It puts handguns in a separate category of extremely dangerous weapons and subjects them to stricter regulation. This is similar to special categories for and stricter regulation of assault rifles, grenade launchers, bazookas, missiles and explosive devices.
Not so. You see under Federal law all of your parade of horribles are perfectly legal to own*. Yes, there are onerous hoops to jump through, registration by the Federal government, $200 taxes to pay (per item in the case of grenades and shells), Federal Explosive Licenses in some cases and so on. But, if you have the money and the time and really want to, you can own all of them.
Which is specifically what DC says you can’t do for a simple handgun. And that is why the ban cannot stand as a reasonable regulation.
*The one exception to this is fully automatic weapons manufactured after 1986. However, if those on the court who care for such things took a look at the legislative history of how that passed they wouldn’t be able to draw any conclusions from that that could be applied elsewhere.
Comment by J_Griffith — September 7, 2007 @ 12:30 am
er, please read the rest of the post.
The rest of your post doesn’t explain why you think narrow-tailoring will be a part of this decision.
Comment by Jacques McKenzie — September 7, 2007 @ 11:17 am
We often see that language in affirmative action cases, and i think it will appear here as well.
Let me make this more simple. Do you think “gun-owners” is a suspect classification?
Comment by Jacques McKenzie — September 7, 2007 @ 11:25 am
to make it simple for you:
The court might believe that Amendment Two smiles on gun ownership, so if the government wants to restrict it, it has to not only show it has a good reason for doing so, but also that it chose a “minimally restrictive” method of achieving that reason. It “trammelled” the right to bear arms as little as it could and still achieve the goal.
Similarly, A14 frowns on racial classifications, so if the government wants to employ them it not only has to show that it has a good reason, but also that the method chosen was ‘narrowly tailored’ to achieve it. it “trammelled” the right to equal treatment re race as little as it could and still achieve the goal.
so “narrowly tailoring” un AA is akin to “less restrictive” here.
hope that helped. somehow i doubt it, though.
Comment by steve jaros — September 7, 2007 @ 4:26 pm
Steve,
Your first statement suggested you think the level of scrutiny matters and your second suggests that it is irrelevant. While I agree with you that the level of scrutiny is irrelevant because of the nature of the right, that really isn’t what your first comment says. Thanks for the clarification.
Comment by Jacques McKenzie — September 7, 2007 @ 7:08 pm
Glad to be of service. All’s well that ends well.
Comment by steve jaros — September 7, 2007 @ 8:57 pm
This case is *the* defining case for 2A. I would be shocked if the court decided to not hear it.
I take the position that 2A is the underpinning of the entire US Constitution; it is the means of last resort to overthrow an oppressor and without it as an individual right, we are left to the mercies of any government to take away any and all of our rights.
To some that may be extreme but I would argue that it was the clear intention of the Founding Fathers
to ensure our liberties as individuals. IMHO, this is consistent with the other amendments intentions.
Comment by Chris Watson — November 13, 2007 @ 4:17 pm