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The Supreme Decision

Wednesday, December 19, 2007

The U.S. Supreme Court has agreed to hear the D.C. gun ban case, setting the stage for a ruling on the real meaning of the Second Amendment.

by DAVID B. KOPEL

The United States Supreme Court will decide the most important Second Amendment case in American history this year. On Nov. 20, the Tuesday before Thanksgiving, the Supreme Court announced that it would take the case of District of Columbia v. Heller.

History In The Making

This case can be confusing if you don't understand its history. In the lower federal courts, the case was known as Parker v. District of Columbia. Parker (a woman who had been threatened by drug dealers), Heller (a security guard who wanted to have a handgun at home) and four other plaintiffs had originally brought suit to strike down the D.C. gun ban. The United States Court of Appeals for the District of Columbia Circuit ruled that five of the plaintiffs (all except Heller) lacked "standing" to sue. That is, their fear of being prosecuted if they violated the D.C. handgun ban did not give them a sufficiently concrete legal interest in order to sue.

In contrast, Heller had actually applied to register a handgun with the D.C. police and had been turned down. Because Heller was appealing from a particular administrative decision, the appellate court ruled that his case could go forward.

On the substance of the case, the appellate court panel ruled 2-1 in Heller's favor-that D.C.'s ban on handgun acquisition and ban on possession of functional firearms for defense in the home were violations of the Second Amendment.

The lawyers for the District of Columbia asked the U.S. Supreme Court to take the case. The lawyers for Heller and the other plaintiffs agreed, since their goal from the start had been to bring a Second Amendment test case to the Supreme Court.

Supreme Buy-In

Even so, the Supreme Court could have refused to take the case. If it had, the lower court decision regarding the Second Amendment would have been binding precedent in the District of Columbia, but not anywhere else.

According to an Oct. 4 Associated Press article, the head of the Brady Campaign, Paul Helmke, "said the group suggested to Washington that it rework its gun laws rather than press on with an appeal." The Brady Campaign, which has vigorously fought to defend the D.C. law against every legal and legislative challenge for the last 31 years, apparently preferred to cut its losses (giving up a handgun ban and self-defense ban in one city) rather than risk a definitive Supreme Court ruling on the Second Amendment-a ruling that could be a devastating blow to their gun-ban cause.

Ironically, it wasn't too long ago when the head lawyer of the Brady Campaign was boldly insisting that the "fact" that the Second Amendment does not protect the right of ordinary Americans to own a gun is "perhaps the most well-settled point in American law." (Dennis Henigan, "The Right to Be Armed: A Constitutional Illusion," S.F. Barrister, Dec. 1989, p. 19.)

It takes at least four of the nine Supreme Court justices to agree to review a case. We may never know which justices voted to hear the case, or if more than four did so.

We do know that the brief for D.C. is due in early January, the brief for Heller will be due in early February and that oral arguments will probably take place in March. It is not uncommon, however, for parties to be granted extensions. The last possible date for oral argument is April 23, and the last possible date for a decision to be announced is June 23-the final day of the Supreme Court's 2007-08 term.

The case is now titled District of Columbia v. Heller, since the appealing party (the party that lost the case in the lower court) is always listed first in Supreme Court cases.

Begging The Question

When parties appeal to the Supreme Court, they propose the "Question Presented." If the Supreme Court agrees to take the case, the parties must address only the Question(s) Presented. In this case, the D.C. government's petition framed the question as, "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns."

On the other side, the lawyers for the D.C. citizens said that the question should be, "Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes." (All the documents in this case are available at www.dcguncase.com)

In an unusual step, the Supreme Court wrote its own Question Presented:

"Whether the following provisions-D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02-violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

... the head of the Brady Campaign, Paul Helmke, "said the group suggested to Washington that it rework its gun laws rather than press on with an appeal."

Thus, the Supreme Court will focus on three specific sections of the D.C. law. First, is the ban on citizens possessing handguns that were not registered to them as of the February 1977 effective date of the handgun ban constitutional? Second, is the ban on carrying, either openly or concealed, any handgun or other concealable weapon without a permit constitutional? Notably, the carrying ban applies even within one's own home-under the law it is illegal to carry a gun from one room of an apartment to another room. Significantly, the court is only interested in the constitutionality of the carry ban for private use in the home. The case does not involve carry outside the home.

Third, the court will explore the portion of the D.C. code prohibiting all functional firearms. All rifles and shotguns (as well as pre-1977 handguns) must be kept "unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia." Self-defense in a place of business is allowed, but not in the home.

What Could Happen?

There are several ways in which the Supreme Court could rule against the Second Amendment. Over the years, the gun-ban lobby has propounded a variety of shifting theories to nullify the Second Amendment-that the Second Amendment right is a "collective right" (like "collective property" in a communist dictatorship, it supposedly bel

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