By Robert Barnes and David Nakamura
Washington Post Staff Writers
Wednesday, September 5, 2007
The District asked the Supreme Court yesterday to save the city's ban on handgun ownership, saying an appeals court's decision overturning the prohibition "drastically departs from the mainstream of American jurisprudence."
If the court agrees to take the case, as most legal experts believe is likely, it could lead to a historic decision sometime next year on whether the Second Amendment to the Constitution protects an individual's right to own a gun or simply imparts a collective, civic right related to maintaining state militias.
It is a question that has been hotly debated in the nation's courts and legislatures for years, and a decision by the Supreme Court to settle the issue could carry broad implications for local governments and thrust gun control as an issue into the 2008 elections.
The District argues in its petition that its law -- one of the strictest in the nation -- should be upheld regardless of whether the court sides with the individualist or collective legal theory.
"It is eminently reasonable to permit private ownership of other types of weapons, including shotguns and rifles, but ban the easily concealed and uniquely dangerous modern handgun," states the petition, filed by D.C. Attorney General Linda Singer. It adds: "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."
Most petitions for review focus on why the court should take the case, but the District's filing serves as more of a preview of its defense of the law, filled with statistics about gun violence and the harm caused to children, women and police officers.
"No other provision of the Bill of Rights even arguably requires a government to tolerate serious physical harm on anything like the scale of the devastation worked by handguns," the petition states.
Mayor Adrian M. Fenty (D) said at a news conference outside D.C. police headquarters that the law has strong support among District residents. "The only possible outcome of more handguns in the home is more violence," he said. "Our appeal will help the District of Columbia be able to continue to reduce gun violence."
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 2 to 1 in March to throw out the District's law, which prohibits handgun ownership except by active and retired law enforcement officers. It also struck down a law requiring that rifles and shotguns kept in private homes be unloaded and disassembled or bound by trigger locks.
The court ruled that the Second Amendment "protects an individual right to keep and bear arms" and that "once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."
The court acknowledged that its decision was groundbreaking; only one other federal appeals court -- that of the 5th Circuit, based in New Orleans -- has recognized an individual's right to gun ownership, and it nevertheless upheld the federal gun-control law at issue. Nine other circuits around the country have endorsed the collective right.
That split is what makes it likely that the justices will accept the case. The lawyers who brought the case on behalf of six D.C. residents who wanted to overturn the ban also want the court to take the case.
"We support the court granting [review] and plan on responding very quickly," said Alan Gura, one of the lawyers who brought the case. Both sides expect that the court could decide by November whether to hear the case, which would mean a decision could come by next summer.
The Supreme Court has not specifically addressed the gun-rights guarantees of the Second Amendment since 1939, when it upheld a federal gun-control law and seemed to side with the collective-right argument.
The Second Amendment provides: "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 appeals court's decision to focus on "the right of the people to keep and bear Arms shall not be infringed" rather than "a well regulated Militia, being necessary to the security of a free State" reflects a growing trend in the legal and academic community.
Some gun-control groups are nervous about taking the appeals court decision, which now affects only the District of Columbia, to the national level. The District's petition asks the court to decide a fairly narrow question: "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns."
The petition argues that the appeals court's decision ignored the "obvious military character" of the Second Amendment's language.
It argues further that the amendment was meant to protect the states from federal intervention, not to restrict their legislative decisions. "States remain free to regulate arms within their boundaries so long as they do not thereby deprive the United States of the ability to obtain the assistance of an armed citizenry in time of need," the petition states.
District lawyers argue that the ability to own shotguns and rifles satisfied the desire of the law's challengers for a means of self-protection. The appeals court found that argument "frivolous."
Although the case decided by the appeals court was called Parker v. District of Columbia, District lawyers have filed their petition as District of Columbia v. Dick Anthony Heller. That is because the appeals court found that Heller, a security guard, was the only one of the six plaintiffs who had legal standing to challenge the law. His application for a handgun permit was denied by the government.
Gura said he will ask the high court to reinstate the others as parties to the suit.