Explore The NRA Universe Of Websites

APPEARS IN Second Amendment

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

TRENDING NOW
NASCAR Takes a Hard Left

News  

Friday, August 30, 2019

NASCAR Takes a Hard Left

After decades of NASCAR drivers literally turning left for hours every race day (road course races excluded, of course), the governing body appears to be taking a figurative left turn, politically. K-Var, a retailer in outdoor and ...

San Francisco Board of Supervisors Declares NRA a “Domestic Terrorist Organization”

News  

Sunday, September 8, 2019

San Francisco Board of Supervisors Declares NRA a “Domestic Terrorist Organization”

On September 3, the San Francisco Board of Supervisors unanimously passed a resolution, “declaring that the National Rifle Association is a domestic terrorist organization and urging other cities, states, and the federal government to do the same.”The resolution was ...

News  

Friday, September 13, 2019

NRA Statement on Texas Governor's Safety Action Report

The National Rifle Association released the following statement on Friday regarding Texas Gov. Greg Abbott's Texas Safety Action Report:   

“Pro-gun” Lt. Gov. Dan Patrick Turns on Second Amendment Supporters, Sides With Anti-Gun Lobby

News  

Sunday, September 8, 2019

“Pro-gun” Lt. Gov. Dan Patrick Turns on Second Amendment Supporters, Sides With Anti-Gun Lobby

Texas Lt. Gov. Dan Patrick uses his political website to claim he is “leading the fight for life and liberty in Texas, including … standing up for the Second Amendment.” He also proudly notes his prior NRA endorsement. But ...

Thursday, September 5, 2019

Florida Alert! Are You Ready For Gun Registration?

A Constitutional Amendment calling for an "assault weapons" ban is being proposed for the ballot in 2020.  The definition of "assault weapon," in the amendment, includes ALL semi-automatic rifles and shotguns.  If the amendment goes on the ballot ...

California: Anti-Gun Bills Sent to Governor

Wednesday, September 11, 2019

California: Anti-Gun Bills Sent to Governor

Earlier this week, the California Legislature cast final votes on AB 12, AB 61, AB 879, AB 1254, AB 1297, and AB 1669, which will now move to Governor Newsom's desk for his consideration.  

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

Groovy: Former NY Times Editor Wants to Return to 1960 Gun Laws

News  

Sunday, September 8, 2019

Groovy: Former NY Times Editor Wants to Return to 1960 Gun Laws

Proving once again that ignorance is no bar to publication in the U.S. legacy press, former executive editor of the New York Times Howell Raines has offered his inane take on the current gun control ...

Marching Toward Gun Confiscation: Prohibition Advocates Released Unhinged Gun Control Plan

News  

Monday, August 26, 2019

Marching Toward Gun Confiscation: Prohibition Advocates Released Unhinged Gun Control Plan

This week, March for Our Lives – the gun control group that arose in the wake of the criminal mass attack at Marjory Stoneman Douglas High School in Parkland, Fla. – released a lengthy plan ...

News  

Wednesday, January 21, 2004

The 1994 Clinton Crime Bill's Firearm Provisions

President Clinton signed the 1994 federal Crime Bill into law on Sept. 13, 1994, including the Violent Crime Control and Law Enforcement Act of 1994, which made it a federal crime for a private individual ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.