D.C.'s Gun Ban Gets Day in Court

kinggovernor · 03-16-2008, 09:37 PM

D.C.'s Gun Ban Gets Day in Court
Justices' Decision May Set Precedent In Interpreting the 2nd Amendment

By Robert Barnes
Washington Post Staff Writer
Sunday, March 16, 2008; A01

Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District's handgun ban violates the Second Amendment.

The nine justices, none of whom has ever ruled directly on the amendment's meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.

"This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,'' said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. "And that's why there's so much discussion on the original meaning of the Second Amendment.''

The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.

"The case has been structured so that they have to confront the threshold question," said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. "I think they have to come to grips with that."

The stakes are obviously high for the District, which passed the nation's strictest gun-control law in 1976, just after residents were granted the authority to govern themselves. It virtually bans the private possession of handguns, and requires that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock.

The law's challengers -- security guard Dick Anthony Heller is the named party in the suit -- say the measure has been an abysmal failure at cutting crime or stanching the city's homicide rate, and a success only in depriving the law-abiding of a ready weapon for protection. The District contends that banning handguns is a logical decision in an urban setting, where more guns would result in more killings.

The city's lawyers argue that the Second Amendment does not provide an individual right and that, even if it does, the amendment is not implicated by legislation that concerns only the District of Columbia.

The case could be a revealing test of the court headed by Chief Justice John G. Roberts Jr. Roberts came to the bench saying justices should decide cases as narrowly as possible, but last year he was part of a slim majority that made bold breaks with the court's jurisprudence in cases both recent and old, on issues such as school integration and abortion.

Clues to the justices' interpretations of the Second Amendment are scant and cryptic, and Roberts said during his 2005 confirmation hearings that the last time the court considered the issue -- in 1939 -- it "sidestepped" the fundamental questions.

That is part of the reason that the outcome -- not expected until near the end of the court's term in late June -- will be so intriguing, said Suzanna Sherry, a law professor at Vanderbilt University.

"It is very rare that the justices write on a clean slate," she said. "In some ways, it gives them great freedom."

Levy and lawyers Alan Gura and Clark Neily were able to persuade the U.S. Court of Appeals for the District of Columbia Circuit last year to do what no other federal appeals court had ever done: strike down a local gun-control ordinance on Second Amendment grounds.

The amendment says that "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,'' and all but one of the circuits that had considered the issue previously had interpreted it as providing a gun-ownership right related only to military service.

But Senior Judge Laurence H. Silberman, a conservative icon, wrote for a 2 to 1 panel that the amendment provides an individual right just as other provisions of the Bill of Rights do. And because handguns fall under the definition of "arms," he wrote, the District may not ban them.

The Supreme Court's endorsement of an individual right would be a monumental change in federal jurisprudence, but perhaps not surprising. Even a small but growing group of liberal constitutional scholars -- "against my political instincts," in the words of Harvard law professor Laurence H. Tribe -- have endorsed the individual-right view.

But even fundamental rights are subject to government restrictions, and whether the justices are ready to decide on the reasonableness of the District's ban could be the crucial question of the case.

The city received an unlikely lifeline from the Bush administration, which told the court that the amendment provides an individual right but that the appeals court erred in deciding that the District's ban was automatically unconstitutional.

"If adopted by this court," Solicitor General Paul D. Clement wrote in the government's brief, "such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns."

Clement said that the District's law may well be unconstitutional, but that the case should be returned to lower courts for "application of a proper standard of review" and to permit "Second Amendment doctrine to develop in an incremental and prudent fashion."

Gun rights supporters were furious about the government's position, and Vice President Cheney went so far as to join a friend-of-the-court brief that specifically rejects the administration's view. Levy said returning the case to lower courts would be a "death knell," and his team has urged the court to apply "strict scrutiny" to any government action that would restrict gun ownership.

Said Gura: "What we want to do is take prohibition off the table."

The case is complicated by the District's secondary argument that the Second Amendment is not implicated by legislation that applies only to the District of Columbia.

The challengers have received a broad array of political support, signs of the strength of the gun rights movement: More than 31 states and a majority of the House and Senate have signed friend-of-the-court briefs.

Among the presidential candidates, Republican Sen. John McCain signed on, while Democratic Sens. Barack Obama and Hillary Rodham Clinton did not. Both Democrats have looked for a middle ground, saying they believe the Second Amendment preserves an individual right, but one that is subject to government restrictions.

That position would seem popular. A Washington Post poll shows that 72 percent of the public believes the Constitution provides an individual right, but respondents were evenly split on whether it is more important to protect the rights of Americans to own guns or to control gun ownership.

Nearly 60 percent said they would support the kind of law in question.

But nationally, it is hard to find many laws as restrictive as the one in the District, partly because of the gun rights lobby's vigilance. More than 40 state constitutions have gun ownership guarantees. Maryland's is one of the few that does not.

As a result, it is difficult to know what gun-control legislation across the country would be at risk even if the Supreme Court upheld the D.C. Circuit's decision.

Levy said the next targets will be handgun laws in Chicago and New York City, although the court has never held that the Second Amendment is applicable to states. And one legal theory is that the provision is a restriction only against the federal government.

Both sides agree that the court's decision could send a powerful message beyond the District.

Tribe, whose support of the individual right is often cited by gun rights supporters, wrote an article in the Wall Street Journal recently that said the District's law could still be upheld and urged the court to decide the case narrowly.

But he acknowledged in an interview that the justices might "jump at the opportunity" to write broadly when they finally have a chance to put their mark "on a part of the Constitution that isn't already paved over with layer upon layer of judicial precedent."

Polling director Jon Cohen and researcher Madonna Lebling contributed to this report.

D.C.'s Gun Ban Gets Day in Court

Finally, oral arguments will be made but we will have to wait a couple more months until the decision is reached. This should be the most interesting SC case in quite some time and it should have some impact on the Presidental race as well.

IMO, the ban is unconstitutional, I am not sure how people can claim that part of the Bill of Rights takes a right away.

Thorgrim · 03-16-2008, 09:44 PM

im almost certain this will be a chance for the court to show off it's right wing politics and have nothing to do with justice or constitutional interpretation...again

A_C_E · 03-16-2008, 09:47 PM

This should be interesting. It's high time we got a real ruling on this.

The "well-ordered militia" part makes the whole Amendment bizarre. I don't believe it's an absolute right, but we'll know for sure soon enough.

Also, note the line about the 2nd Amendment not expressly being applicable to the states. That should be another big fight.

A_C_E · 03-16-2008, 09:47 PM

Originally Posted by Thorgrim

im almost certain this will be a chance for the court to show off it's right wing politics and have nothing to do with justice or constitutional interpretation...again

Yea, this too

Thorgrim · 03-16-2008, 09:52 PM

The guy arguing against the insanely right wing opinion from the insanely right wing judge is subpar...which sucks

the government's lawyer actually was instructed by bush not to push for an individual right, all the NRA money wasted lol

so both sides are going to be arguing that the 2nd amendment should NOT be a total individual right

however with alito/roberts/scalia/thomas...all you need is to pickoff one judge like Kennedy and they'll run off a cliff with their opinion

kinggovernor · 03-16-2008, 10:18 PM

D.C., feds ready for epic gun battle

March 16, 2008

By Gary Emerling - The District of Columbia's fight to preserve its nearly 32-year-old ban on handguns before the U.S. Supreme Court has drawn nationwide attention as an up-or-down vote on the limits of gun control.

"Regardless of who wins and loses, the crucial thing is really going to be what [the justices] are going to say about the Second Amendment," said Paul Helmke, president of the Brady Campaign to Combat Gun Violence. "It will set the ground rules for analyzing almost every gun law in the country for years to come."

Attorneys for the city and Dick Anthony Heller — a special police officer whose failed effort to register a handgun in 2002 helped spur the legal battle — will argue their cases before the justices on Tuesday.

Both sides in the case, along with city officials, federal lawmakers and the White House, say the court's decision places much at stake.

"It'll be an issue as important as abortion, gay marriage — these flash points that so divide us in the United States," said Interim D.C. Attorney General Peter J. Nickles, who has led the city's efforts to keep its gun ban.

Widespread impact

The case will mark the first time in about 70 years that the Supreme Court has examined the Second Amendment, which states: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The rarity of the case and the potential consequences of the ruling account for the widespread attention it has received: Nearly 70 amicus briefs have been filed on behalf of more than 320 members of Congress, 36 states and other interested parties on both sides of the case.

The most notable U.S. city to submit a brief is Chicago, which, aside from the District, potentially has the most to lose or gain from a court decision.

In 1982, Chicago enacted a ban similar to the District's, forbidding handgun registration, with some exceptions.

"The Heller case is obviously of a greater interest to people locally, both within city government and to residents as well, as I think it is to people across the country," said Benna Ruth Solomon, Chicago's deputy corporation counsel, who steered the drafting of the city's brief to protect its ban.

Ms. Solomon said there are "several steps" before a decision in the District's case would affect Chicago's ban or the gun laws of other cities and states.

For example, the court would have to rule that the Second Amendment is "incorporated" by the 14th Amendment against the states — meaning the amendment applies to state and local governments and not just to federal lawmakers.

Such a ruling would go beyond the question the court intends to address, but the justices have authority to exceed those boundaries.

"Our brief was really extremely prophylactic in nature," Ms. Solomon said. "It is not because we are directly affected by the case. It is more because we don't wish to be directly affected by the case."

Alan Gura, an attorney for Mr. Heller who will argue before the Supreme Court, said a ruling in his favor could put gun prohibition "off the table."

"Basically, gun laws that make sense, gun laws that are designed to help police solve crime ... are not going to be affected," said Mr. Gura, who will argue against the District's lead counsel in the case, former acting U.S. Solicitor General Walter E. Dellinger III.

Others who have weighed in on the case include county prosecutors worried that the court's decision could result in appeals from convicted criminals.

A brief filed by district attorneys from San Francisco, New York and elsewhere states that "Second Amendment challenges to criminal laws already have begun."

"A felon convicted of criminal firearm possession recently challenged a New York gun possession statute based on the D.C. Circuit's opinion ... saying he wanted to see 'how far [he] could ride this pony,' " the brief states.

Anthony Girese, counsel to Robert T. Johnson — the district attorney for Bronx County in New York — said if the Supreme Court rules that gun ownership is an individual right and that the Second Amendment applies to the states, the justices then could decide the proper standards for gun regulation.

That, he said, "could have a very profound effect nationwide."

"A lot of major cities, including New York, have fairly restrictive gun regulations," Mr. Girese said. "I would anticipate that if we get to [that level] there will be a vast volume of litigation about the validity of all sorts of criminal laws."

The court's pending decision — which is expected to come down in June — also has caused the Bush administration to question the effect the ruling may have on existing federal laws, including those that generally ban machine guns and weapons undetectable by metal detectors.

U.S. Solicitor General Paul D. Clement, who also will weigh in before the high court on Tuesday, filed a brief in the case urging the justices to send the Heller case back to the lower court for more consideration. He said the appellate panel used a wrong and dangerous approach when it concluded that the District cannot ban handguns because they are "Arms" referred to in the Second Amendment.

"Such a categorical approach would cast doubt on the constitutionality of the current federal machine gun ban, as well as on Congress"s general authority to protect the public safety by identifying and proscribing particularly dangerous weapons," the brief says.

The solicitor general's brief also affirms the administration's view that the Constitution guarantees an individual right to gun ownership.

'More than just a gun case'

The District's gun ban, the most stringent in the nation, was passed in June 1976 in a 12-1 vote by the D.C. Council.

It prohibits city residents — with few exceptions — from registering handguns and keeping them in the city. It also requires legal firearms such as shotguns and rifles to be stored disassembled or bound with trigger locks.

In February 2003, Mr. Heller and five other residents sued the city in U.S. District Court, hoping to win the right to keep handguns and an assembled shotgun in their homes for self-defense.

"I was upset in 1976, but I didn't know anything about politics," Mr. Heller told The Washington Times last week. "So I just said 'Oh, obviously some intelligent citizen is going to take care of this for us.' Here we are; I'm the last one standing."

Judge Emmet G. Sullivan, appointed to his post by President Clinton in 1994, dismissed the case about a year later. However, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit reversed the decision last March, ruling 2-1 that the right to bear arms as guaranteed in the Second Amendment applies to individuals and not only to militias.

Mr. Heller, 66, who lives in Southeast near the Supreme Court building and will be in attendance for the arguments, is the last remaining original plaintiff. The other plaintiffs were dismissed for lack of standing.

He said the case "hasn't changed me at all."

"It's simply an event that's bigger than this citizen, and it represents so much more than just a gun case. It represents defending our Constitution," he said.

D.C. officials, including Mr. Nickles and Mayor Adrian M. Fenty, a Democrat, weighed their decision to appeal the case to the Supreme Court amid warnings from gun-control advocates that the breadth of the District's ban could endanger existing gun laws across the country.

"The fact that it's dealing with the District's gun ban probably makes it a more difficult case than we would have perhaps liked to have seen argued," Mr. Helmke said. "In effect, they picked the easiest one to attack."

David Vladeck, a professor at Georgetown University's law school, said the ramifications of the court's decision depend on how broadly the nine justices address the case's central question: whether the city's laws violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia but wish to keep handguns and other firearms for private use in their homes.

"One of the reasons why states and cities are worried about this case is they don't want the court to impose unreasonable rules regarding the restriction of weapons," Mr. Vladeck said.

Mr. Nickles and Mr. Fenty say the city's gun-control laws reflect the will of D.C. residents.

"We listened to those folks," Mr. Nickles said, but "you know, my first job is to win. And I think we can and will."

Federal interests

The effectiveness of gun laws in the District, where warring gangs and a crack cocaine surge helped the city earn its "murder capital" nickname in the early 1990s, has been disputed for years.

FBI statistics show that the District's homicide rate was 32.8 per 100,000 residents in 1975, the last full year before the gun ban was passed by the council.

In 2006, the last full year for which statistics were available, the rate of homicides and non-negligible manslaughters in the city was 29.1. The rate dropped immediately after the ban was imposed and skyrocketed in the late 1980s and early 1990s. It has leveled off in recent years. The murder rate peaked in 1991, when the city of just less than 600,000 reported 482 homicides — a murder rate of 80.6 per 100,000 residents.

The handgun ban also has been a subject of congressional debate and even has split the Bush White House.

In 2004 and 2005, congressional efforts to render parts of the city's gun laws obsolete failed despite receiving overwhelming support from the House.

Last month, 55 senators and 250 members of the House signed onto a brief calling for the Supreme Court to overturn the D.C. gun ban by affirming the circuit court decision. The number of federal lawmakers, including 228 Republicans and 77 Democrats, is thought to be the largest ever to weigh in on a topic with the high court, at least in recent years.

"If you look at the briefs that have been filed on this case, the congressional brief is truly historic," said Wayne LaPierre, executive vice president of the National Rifle Association, which opposes the gun ban. "What you see there is the people's branch of government weighing in that it's the people's freedom, and they want it protected."

Vice President Dick Cheney, breaking with Mr. Clement's brief on behalf of the administration, signed on with the congressional brief in his capacity as president of the Senate.

Eighteen members of the House took a different stance by filing a brief noting that Congress has enacted recent legislation banning certain types of weapons.

"The interesting legal argument we raise is, 'Yes, the Supreme Court interprets the Constitution, but also the Congress interprets the Constitution every day with its legislative actions," said Rep. Chaka Fattah, Pennsylvania Democrat and lead member on the brief. "So if it was constitutional to ban assault weapons or ban weapons in national parks, then there are limits on the right to bear arms."

Mr. Fattah said it is unlikely the court's decision would result in a flurry of federal legislation because of the difficulty of passing gun-control bills in Congress. However, it may become a hot-button topic in the upcoming presidential elections.

Sen. John McCain of Arizona, the presumptive Republican presidential nominee, signed on to the congressional brief and co-sponsored previous efforts to lift the ban.

McCain spokesman Randy Scheunemann said the senator thinks the D.C. gun ban is "clearly unconstitutional" and that the Second Amendment guarantees an individual's right to bear arms.

Jen Psaki, a spokeswoman for Democratic presidential hopeful Sen. Barack Obama of Illinois, said Mr. Obama "believes the Second Amendment creates an individual right, and he greatly respects the constitutional rights of Americans to bear arms."

"He also believes that the Constitution permits state and local governments to adopt reasonable and common-sense gun safety measures," she said, but would not elaborate on the whether the senator supports the D.C. gun ban.

The campaign of Mr. Obama's Democratic rival, Sen. Hillary Rodham Clinton of New York, did not respond to repeated requests for comment on the Heller case.

Mr. Nickles said the candidates likely will have to state their views if the court issues a decision. Whether the justices issue a ruling specific to the Second Amendment, the entire country will be watching.

"It's an important, watershed case," Mr. LaPierre said. "There's absolutely no doubt about that."

D.C., feds ready for epic gun battle*-*-*The Washington Times, America's Newspaper

Jeff Z. · 03-17-2008, 10:42 AM

Originally Posted by Thorgrim

im almost certain this will be a chance for the court to show off it's right wing politics...

I sincerely hope so.

hsmith · 03-17-2008, 04:21 PM

Originally Posted by A_C_E

This should be interesting. It's high time we got a real ruling on this.

The "well-ordered militia" part makes the whole Amendment bizarre. I don't believe it's an absolute right, but we'll know for sure soon enough.

Also, note the line about the 2nd Amendment not expressly being applicable to the states. That should be another big fight.

Good thing the amendment reads "A well regulated Militia, being necessary to the security of a free State, to keep and bear Arms, shall not be infringed." right?

hsmith · 03-17-2008, 04:21 PM

Originally Posted by Thorgrim

im almost certain this will be a chance for the court to show off it's right wing politics and have nothing to do with justice or constitutional interpretation...again

They can legislate from the bench, as long is it is something you agree with.

A_C_E · 03-17-2008, 04:30 PM

Originally Posted by hsmith

Good thing the amendment reads "A well regulated Militia, being necessary to the security of a free State, to keep and bear Arms, shall not be infringed." right?

"State", in this context, is clearly a reference to what we think of as a country, not a state in the sense of the second-level of US government.

Thorgrim · 03-17-2008, 04:32 PM

Originally Posted by hsmith

They can legislate from the bench, as long is it is something you agree with.

The right to privacy is not something that faces thousnads of pages of peer-reviewed history of the highest academic respect going against the contrary

As I've posted before, people who carried concealed pistols during the founding of our constitution were labeled as "assassins" when they used it in self defense...today they'd be labeled as heroes...there has been a huge shift

Which, can be taken into account, by making a new fundamental right, but not by lying about our past

However, I really really doubt Thomas Jefferson and all the enlightened founding fathers thought the law of the land should forbid married couples from having oral sex...they recognized a right to privacy but simply did not put it into an individual amendment...it would have sounded so vague and abstract, they simply sprinkled it throughout the amendments, and eventually the courts came to recognize it as a strong right

Ofcourse, they weren't that bright...they did give us the electoral college and 3/5ths...

hsmith · 03-17-2008, 04:32 PM

Originally Posted by A_C_E

"State", in this context, is clearly a reference to what we think of as a country, not a state in the sense of the second-level of US government.

No, it was in reference to the individual states. Thus why Lee went and fought for Virginia instead of the Union.

A_C_E · 03-17-2008, 04:32 PM

Originally Posted by hsmith

No, it was in reference to the individual states. Thus why Lee went and fought for Virginia instead of the Union.

No, it wasn't.

If it meant "US state as in New York", why would this even be a question for Constitutional interpretation? The fact that it is a question for debate makes it perfectly clear this references the US federal government.

hsmith · 03-17-2008, 04:33 PM

Originally Posted by A_C_E

No, it wasn't.

Ok.

thewise1 · 03-18-2008, 06:39 AM

lol @ people who ignore the english meaning of the words and tell people they understand some deeper unwritten meaning in it

7960 · 03-18-2008, 08:32 AM

lol @ people who use today's definitions and word conventions to interpret the meaning of text written 200+ years ago.

hsmith · 03-18-2008, 09:23 AM

What it boils down to: No one else will protect you. The courts have ruled the Police are under no obligation to. Firearms are the only means to give you equal footing in an encounter.

You can argue the "meaning" of words which are in plain english all you want. The fact remains, only you can look out for you.

Phantom · 03-18-2008, 09:49 AM

Originally Posted by Thorgrim

As I've posted before, people who carried concealed pistols during the founding of our constitution were labeled as "assassins" when they used it in self defense...today they'd be labeled as heroes...there has been a huge shift

Which, can be taken into account, by making a new fundamental right, but not by lying about our past

screw that "living document" business when it doesn't grow in the way you want it to