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D.C. Asks Full Court To Study Gun Law
Appeals Panel Had Ruled Against Ban, Angering Officials

By Henri E. Cauvin
Washington Post Staff Writer
Tuesday, April 10, 2007

Attorneys for the District sought yesterday to preserve the city's gun-control law, asking a federal appeals court to reconsider a recent decision that called some restrictions unconstitutional.

The District urged the full appeals court to review the ruling made last month by a three-judge panel. The 2 to 1 decision declared that the Second Amendment grants a person the right to possess firearms and struck down a part of the D.C. law that bars people from keeping handguns in homes.

Mayor Adrian M. Fenty (D) vowed to fight the decision, and yesterday he was at the courthouse for the filing of a petition seeking a full review by the U.S. Court of Appeals for the D.C. Circuit.

Flanked by Attorney General Linda Singer, Police Chief Cathy L. Lanier and council members Phil Mendelson (D-At Large) and Marion Barry (D-Ward 8), Fenty said the District cannot afford to accept a ruling that would increase the number of guns in the city.

"More guns quite simply leads to more violence," Fenty said.

In seeking another layer of review, the District argued that the case deals with "questions of exceptional importance" and noted that the decision creates conflicts in federal case law that must be resolved.

For decades, the District has had one of the most restrictive gun laws in the country, prohibiting private citizens from owning handguns and limiting ownership and use of rifles and shotguns. The gun law remains in effect while legal proceedings continue.

The restrictions have drawn the ire of libertarians, gun enthusiasts and others, and this is not the first time the law has come under attack.

But with a decades-old Supreme Court ruling and appellate rulings seemingly in the District's favor, the restrictions did not appear to be vulnerable to a Second Amendment claim -- until last month.

In an opinion written by Senior Judge Laurence H. Silberman and joined by Judge Thomas B. Griffith, the court found that the ban on keeping handguns in homes violates the Second Amendment, which states 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."

The ruling also struck down a section of the D.C. law that requires owners of registered guns, including shotguns, to disassemble them or use trigger locks.

Judge Karen LeCraft Henderson, who, like Silberman and Griffith, was appointed by a Republican president, dissented.

The District could have appealed directly to the Supreme Court, and the case might wind up there.

But Singer said the city's interests would be served by allowing the full appeals court to hear the case. "We want to give them a chance to look at this first," she said.

Barbara McDowell, who is an appeals attorney for the Legal Aid Society of the District of Columbia and was a lawyer for the U.S. solicitor general for several years, said the District might view the appeals court as more receptive than the Supreme Court. Even so, forecasting how a court will rule in a case like this is tricky, she said. "I think it's really hard to predict how judges will come out on an unsettled area of the law, such as the Second Amendment," she said.

And, McDowell said, a judge's interpretation of the Second Amendment might not necessarily line up with what are believed to be his or her traditional political leanings. A narrow reading of the Second Amendment might be considered legally conservative but politically liberal, McDowell said. "So knowing whether somebody is conservative or liberal may not tell us much about how this case is going to come out," she said.

Alan Gura, who represented the plaintiffs in the suit challenging the gun law, said that although he does not think the full court needs to hear the case, he would not be surprised if it chooses to do so.

"But we don't believe the outcome will be any different," he said.

With one of the court's 11 seats vacant, the case, if accepted for what is known as an en banc review, would be heard by 10 judges on the court and by Silberman. As a senior judge, Silberman would not ordinarily sit for en banc reviews but would in this case because he was a member of the panel that issued the decision.

A decision on whether the full court will hear the case probably will come this spring, Singer said. Oral arguments probably would follow in the fall, she said.

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