Circuit denies new review of Second Amendment
on May 8, 2007 at 12:31 pm
UPDATE 8:30 p.m.
District of Columbia Mayor Adrian M. Fenty told reporters on Tuesday that an appeal to the Supreme Court is one option being considered as the city seeks to regain full authority to regulate private possession of handguns. In a public statement issued before his meeting with the media, the mayor said city officials “will evaluate our options over the next few weeks and will soon make a decision on how we will proceed.” He reiterated that he was committed to “vigorously defending the laws of the District of Columbia.” Beyond that statement, the mayor said in his meeting with reporters that another option, in addition to or instead of an appeal, would be to write new regulations to keep guns off the streets. Under Supreme Court rules, the city has 90 days from Tuesday to file a petition for review there.
In a brief order that clears the way for a potentially major dispute in the Supreme Court over the meaning of the Second Amendment, the D.C. Circuit Court on Tuesday refused to rehear en banc a test case on the validity of a sweeping gun control law in the District of Columbia. The denial was by a vote of 6 to 4. Among the dissenters were both conservative and liberal members of the Court. Here is the Court’s order.
The District government had sought reconsideration following a Circuit panel’s 2-1 ruling on March 9 that held the Second Amendment protects an individual right to have a handgun in one’s own home. (The rehearing petition is discussed and linked in this post ) The denial of rehearing leaves that decision intact.
Because local government officials regard their power to regulate guns in the capital city as a “life or death” matter, they are expected to challenge the panel decision in the Supreme Court. Such an appeal almost certainly would not be reviewed until next Term. (D.C. Mayor Adrian Fenty is expected to make a statement later Tuesday.)
A grant would appear to be quite likely, because there is a definite conflict among the Circuit Courts on the meaning of the Second Amendment, and the Supreme Court has not ruled on the issue since a somewhat ambiguous decision in 1939 (U.S. v. Miller0 .In fact, Justice Clarence Thomas in 1997 suggested that the Court some day should re-think the issue, and he indicated he was sympathetic to the individual right argument.
While the Fifth Circuit Court has ruled in favor of an individual right theory, it did not use that theory to strike down any specific gun control law. By contrast, the D.C. Circuit ruling was the first to apply that theory directly in nullifying a gun law. Every other Circuit Court to rule on the issue has rejected the indiviual right theory, largely based upon the Supreme Court’s Miller decision. There is also a 10 to 7 split among state appellate courts on the issue.
Moreover, there is also a direct conflict over the Second Amendment as it applies specifically to the D.C. gun law — the city’s highest local court, the District of Columbia Court of Appeals, has upheld the same law by embracing the collective right theory. It reiterated that position as recently as last week, in the case of Andrews v. United States (D.C. Court of Appeals docket 02-1043) — a ruling that the city government had brought to the Circuit Court’s attention last Friday, before rehearing was denied.
The Bush Administration has publicly said it favors the individual right interpretation of the Amendment, but it has never found that the Amendment so interpreted would strike down any federal gun law. If the D.C. case goes on to the Court, the Administration would be quite likely to take a position on it; it was not involved in the case in the Circuit Court or the District Court.
In unsuccessfully calling for rehearing in the D.C. Circuit, the local government had said that, if the ruling stood, “the federal courts in this jurisdiction may expect to be singularly attractive to suits against the United States Attorney General challenging nationally applicable firearm laws Congress has enacted or may yet enact.”
Because the case of Parker v. District of Columbia deals only with the Second Amendment as a federal issue, it does not raise the question of whether the Second Amendment applies at all to state and local government. The Supreme Court last faced that issue in 1886 in Presser v. Illinois, finding that the Amendment only applied to the federal government. That would not be an issue in the Parker case in the Supreme Court, but a state or local case would be almost certain to arise to test it.
(As a reader points out, below, Circuit Judge Karen LeCraft Henderson, who dissented from the panel decision, did not vote for en banc review. The dissenters were a conservative, A. Raymond Randolph, and three liberal or moderate judges, Merrick Garland, Judith Rogers and David Tatel. Had Henderson voted with them, the Court would have been split 5-5 but review would still be denied, because a majority is required.)
