City seeks new hearing on gun ban

The city government of Washington, D.C., on Monday asked the full D.C. Circuit Court to reconsider a three-judge panel’s ruling that struck down under the Second Amendment the city’s 31-year-old handgun ban. In a petition for rehearing en banc, the city and Mayor Adrian Fenty said the 2-1 panel decision “adopted readings of the Second Amendment and Supreme Court precedent that are contrary to those of nearly every other federal court of appeals, as well as the highest local court in this jurisdiction, and thereby created a clear conflict on constitutional issues of fundamental importance.” This would be the last step before an expected appeal to the Supreme Court, no matter who wins in the Circuit Court.

The text of the petition in Parker v. District of Columbia (Circuit docket 04-7041) can be found here. The District of Columbia argued that the panel ruling “marks the first time in the Nation’s history that a federal court of appeals has struck down a law as unconstitutional under the Second Amendment.” Without this ruling, the petition said, “there would be no clearly established conflict among the federal circuits. That fact itself establishes that en banc rehearing is appropriate.”

If rehearing is granted, that would set aside the panel ruling. The city urged the Court, if it does agree to reconsider the case, to order new briefing by the parties and by amici interested in the issues. Among other issues that might appear differently before an en banc court, as opposed to a panel, the city’s petition said, is whether any District resident had a right to challenge the city law (ie., had “standing” to sue).

If the panel ruling stands, the city contended, “it will severely limit the authority of both the District government and Congress to legislate in ways that they believe will best protect citizens and law-enforcement officers from gun violence and ultimately save lives.” The legal questions in the case, the filing added, “are literally life-or-death given the realities of gun violence in our society.”

These are the specific legal questions the city said the case raises: “(1) whether the Second Amendment protects firearms possession or use that is not associated with service in a state militia; (2) whether the Amendment applies diferently because of the District’s constitutional status; and (3) whether the challenged laws represent reasonable regulation of whatever right the Amendment protects.”

The panel ruling, issued on March 9, nullified the city’s ban on handguns so far as it applied to private possession of such weapons within the home. The panel concluded that the Second Amendment protects an individual right to have such a gun, without regard to whether the individual had any tie to a “militia” or National Guard unit.

The city’s petition sought to show that the case involves more than the city’s gun law. “If the ruling stands,” it asserted, “the federal courts in this jurisdiction may expect to be singularly attractive to suits against the United States Attorney General challenging nationally applicabvle fiearm laws Congress has enacted or may yet enact.”

Because of that potential impact, an interesting question is whether the federal government will seek to file any views if the case is granted en banc review. The Justice Department took no part in the case before the three-judge panel. The Bush Administration holds the view that the Second Amendment does protect an individual right to have a gun, but it has yet to argue in any actual case that a particular federal law ran afoul of that interpretation.

There is no doubt that the Second Amendment, whatever its scope, applies to laws passed by Congress. So far, however, the Supreme Court has not extended the Amendment to apply to state gun regulation laws. An 1886 decision (Presser v. Illinois) found that it does not apply to the states. The city has argued in the Parker case that it should be as free as states are to regulate private possession and use of guns.

Six residents of Washington filed the challenge four years ago. The Circuit panel found that one of them had standing to bring the case.

Under court rules, the challengers to the law would be allowed to file a response to the en banc petition only if the court asks for one.