Foes of D.C. Handgun Ban Seek Supreme Court Review
Both Sides Want Rulings on D.C. Law Reconciled

By Robert Barnes
Washington Post Staff Writer
Friday, October 5, 2007

The D.C. residents who successfully challenged the District's handgun ban urged the U.S. Supreme Court yesterday to review the case, saying it presents a "unique opportunity" for the court to recognize that the Second Amendment guarantees an individual's right to "keep and bear arms."

It is rare for the winning side to agree with the losing side that its legal victory should be reviewed, but the residents and their attorneys have a greater goal: a ruling by the justices that would allow courts across the country to strike gun prohibitions and gun control measures that they think infringe on an individual's rights.

"Unfortunately, a majority of federal circuit courts of appeal fail to acknowledge the requisite first element of Second Amendment analysis: the existence of an individual right," wrote the residents' attorneys, led by Alan Gura. "Clarifying that the Second Amendment secures individual rights would enable courts to properly analyze firearms regulations, even if the unusual facts of this case are unlikely to be repeated."

The city's law is one of the strictest in the country -- a virtual ban on private handgun ownership and a requirement that rifles and shotguns be stored unloaded and disassembled or outfitted with a trigger lock.

The U.S. Court of Appeals for the D.C. Circuit ruled 2 to 1 in the spring that the law was unconstitutional. That panel of judges found that the Second Amendment protected an individual's right to bear arms. Most federal appeals courts have said the amendment protects only a collective right, to maintain a militia.

The city criticized the appeals court decision, saying it "drastically departs from the mainstream of American jurisprudence" because the appeals panel was the first such court to strike down a gun control law based on the individual rights theory.

Although both sides want the Supreme Court to review the case, they have radically different ideas about what question the justices should answer.

The city proposes: "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns."

The residents counter with: "Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes."

Gura wrote that the city mischaracterizes its law and the appeals court decision by indicating that District residents can keep rifles and shotguns for their self-defense.

He said the only way Dick Heller, the named party in the case, could defend himself with a rifle under the city's statute would be by "throwing it at an assailant or by wielding it as a club."

An appeal to the Supreme Court usually concentrates on why the justices should accept the case. Both sides in the gun case agree that the conflicting rulings of the appeals courts should persuade the court to take action.

So the city's petition went further, defending the gun ban as a rational decision by a city beset by violent crime that is trying to protect its children and police officers. "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."

The residents' response mocked the sentiment, saying the city's "31-year experiment with gun prohibition" has been a "complete failure."

The city's failure to protect its residents is "borne of the regrettable truth that even the best police force cannot perfectly protect the general population against violence," the response said. "Accordingly, the people's need for Second Amendment rights is inevitably," regardless of the city's intentions, "a matter of life and death."

The city must file its response by next Friday, after which the Supreme Court can schedule the case for a private conference for a decision. If the court accepts the case, there is time for it to be added to this year's term and decided by the end of June.