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D.C. resists expansion of gun case review

The District of Columbia government on Friday opposed a move by D.C. residents to expand the scope of Supreme Court review of the dispute over the city’s strict ban on private possession of handguns.  In a new brief, city officials argued that the Justices should consider only the constitutionality of the handgun law under the Constitution’s Second Amendment.  That is the sole issue raised in the city’s petition in D.C. v. Heller (07-290).  D.C.  residents have filed a cross-petition (Parker v. District of Columbia, 07-335; the city brief filed on Friday was in opposition to that filing. The Court has not yet acted on either appeal.

In the D.C. Circuit Court’s March 9 ruling striking down the city law, it found that only one local resident — Dick Anthony Heller — had a legal right to sue, thus excluding five other residents. The challengers favor Court review of the Second Amendment issue, but the five other residents filed their own appeal urging the Court to overturn the denial of standing to those five, by examining Circuit precedents that they argue limit the right to sue.

Responding on Friday, city officials argued that “granting the cross-petition would unnecessarily complicate the pending litigation on the meaning of the Second Amendment.”  Since the Circuit Court upheld Heller’s standing (which the city does not challenge), the officials said the city “would have little interest” in defending the Circuit Court’s denial of standing to the other five, even if the Court were to hear their case.  With Heller in the case, it added, the other five “have little if anything  to gain” in their appeal, since any ruling in the city’s case will bind it “as against all of its citizens.”

On the specific question of whether the Court should grant the cross-petition, the new brief opposes that both on jurisdictional grounds and on the merits.  On the merits, it says that the Supreme Court denied review on Jan. 23, 2006, in an earlier D.C. case seeking to raise the question posed in 07-335.  The 2005 denial came in Seegars v. Gonzales (05-365), an appeal from a Circuit Court ruling in February 2005.  The city noted that the U.S. Solicitor General opposed review in that case.

In Seegars, which also involved a challenge to the D.C. handgun ban, the Circuit Court, by a 2-1 vote, found no standing by any of the challengers at that time. When the en banc Court denied rehearing, Circuit Judge John G. Roberts, Jr., was one of four judges who wanted to reconsider the case; he did not join any of the dissenting opinions on the rehearing issue, however.  He had become Chief Justice by the time the case reached the Supreme Court, and he declined to take part when review was denied.  His participation in the earlier case, however, would not appear to require him to avoid taking part in disposing of the new appeals.  It is unclear whether his vote on the Circuit Court on the rehearing question about standing provides any hints about how he feels about the core Second Amendment issue.

The city brief on the standing issue disputes that there is a conflict between the Circuit Court’s view on standing questions and that of other appeals courts, or the Supreme Court.

The Justices will consider the petition and cross-petition together. If each side files a reply brief in its case, the whole package probably will be considered at a Conference in early November.

(Disclaimer: Thomas Goldstein of Akin Gump is on the legal team representing the city in both the petition and cross-petition.  The author of this post, however, is not employed by the law firm, and writes independently of any law practice.)