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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.


(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.)