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Court urged to hear D.C. gun case

Six Washington, D.C., residents on Thursday urged the Supreme Court to step in now to define the nature of the right to “keep and bear arms” under the Constitution’s Second Amendment — in short, to decide whether it assures a private, personal right to have guns in one’s home. The brief suggested a different version of the issue at stake than had been posed by the District of Columbia government in its appeal in District of Columbia v. Heller (07-290). The brief in response can be found here.

The brief on behalf of Dick Anthony Heller and five other Washingtonians said they welcome the city government’s “effort to have this Court review the nature of Second Amendment rights. This case presents the Court a unique opportunity to correct a persistent misconception that the people do not actually enjoy a right that is specifically enumerated in the Constitution. ‘The people’ — individuals in our country — retain the right to keep and bear arms. This case raises a profound constitutional law question in the context of a stark split of authority among the lower federal courts and state courts of last resort.”

When the city filed its appeal last month, here is the question it raised: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” The residents’ brief, however, said the Court should rewrite the question it will review to read: “Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.”

Attorneys for the gun rights advocates suggested that the District’s version of the issue was “tendentious” because “the question in this case is not merely whether the city may ban handguns as a subclass of firearm; the question is whether a law that prevents people from keeping functional firearms — of any kind — in their homes violates the ‘right to keep and bear arms’ recognized by the Second Amendment.”

The residents’ preferred question, the brief said, “fairly and accurately reflects all the laws adjudicated by the courts below….The code provisions at issue amount to a complete prohibition of the possession of all functional firearms within the home. The challenged laws are thus an absolute negation of the people’s right to keep arms. If the right exists, the laws must yield.”

The D.C. Circuit Court ruling that city officials are appealing, the response brief said, “struck down their statute banning the possession of all functional firearms.” That includes, the brief said, a provision that requires all guns kept at home to be unloaded and disassembled or bound by a trigger lock. “The court of appeals explained that allowing individuals to possess only non-functional firearms inside their home is tantamount to prohibiting such weapons outright.”

While the city had argued that its law would allow the use of rifles or shotguns in self-defense in the home, the brief said that the issue of arms available for self-defense was not litigated. The city’s “newly invented right of self-defense lacks legal support, lacks credibility, and contradicts the plain language of the statute.” City officials, it added, “cannot recast their draconian laws, or the nature of this case, by creative presentation of the question at issue.”

In arguing for its own version of the question presented, the new brief said that would put before the Court a “quite narrow” issue, with the Court confronted only with the issue of whether “the Second Amendment securs individual rights.” Ruling on the validity of a flat ban on “functional firearms within the home” would not require the Court to announce or clarify any constitutional standards, it said.

“The mere existence of he Second Amendment right would clearly be sufficient to dispose of the city’s general ban on functional firearms,” it declared. The Court also need not decide how strict a constitutional test to apply to regulations that implicate that Amendment, it asserted.

The brief disputed the government’s anti-crime policy rationale for the local handgun ban, but said it will reserve most of its response to that for briefing on the merits if the Court grants review.

Although only local resident Heller was found by the Circuit Court to have standing to challenge the local law, the response brief noted that Supreme Court Rule 12.6 treats as parties before the Court with the right to file documents all those who were parties in the lower court.

The other residents have filed their own petition in the Supreme Court (Parker v. District of Columbia, 07-335), attempting to regain “standing” in the case. Their appeal argued that the Circuit Court has long followed a flawed practice on the “standing” question. The city’s response to that petition is due next Friday, Oct. 12.