Gun Law Prevents Harm, D.C. Argues

By Robert Barnes and David Nakamura
Washington Post Staff Writers
Saturday, January 5, 2008

The District told the Supreme Court yesterday that even if the Second Amendment affords an individual right to possess firearms, the city's ban on handguns is a reasonable restriction to prevent the "tragic harms" brought by gun violence in an urban setting.

"Where a legislature has articulated proper reasons for enacting a gun-control law, with meaningful supporting evidence, and that law does not deprive the people of reasonable means to defend themselves, it should be upheld," District lawyers wrote in a 79-page brief.

The brief was filed with the court yesterday as Mayor Adrian M. Fenty (D) and acting D.C. Attorney General Peter J. Nickles held a news conference to introduce the legal team, headed by experienced Supreme Court advocate Walter E. Dellinger, that will defend the law.

Nickles promoted Dellinger on Wednesday after having fired D.C. special counsel Alan B. Morrison, who was scheduled to argue the case before the court, most likely in March. D.C. Solicitor General Todd Kim and two other experienced Supreme Court practitioners, Thomas C. Goldstein and Robert A. Long, also will play prominent roles, Nickles said.

"These are the superheroes of Supreme Court practice," Nickles said at the news conference. "We have the best team available to argue this important case."

The case is one of the most high-profile on the Supreme Court's docket, the first time in more than 70 years the court will hear a Second Amendment challenge. It will offer the justices a chance to settle years of debate on whether the enigmatically worded amendment -- "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" -- guarantees an individual right to possess firearms or a "collective" civic right related to military service.

All but two of the nation's appeals courts have said it guarantees only a collective right. But a panel of the U.S. Court of Appeals for the D.C. Circuit last spring said it provides an individual right, and became the first to use the Second Amendment to strike a local gun-control law.

The District law, which remains in effect during the appeals, is the strictest in the country, banning private handgun ownership and requiring that rifles and shotguns in private homes be kept unloaded and disassembled or outfitted with a trigger lock.

The District's brief defends the law in three ways.

First, the brief says that the most reasonable reading of the first two clauses of the amendment is that it guarantees a right to gun ownership only in relation to some sort of military service.

"The Framers' phrasing of the Second Amendment was in fact a natural way to protect a militia-related right," the brief states.

Even if the court decides the amendment does protect an individual right, the brief says, it must be read as a restriction only on the federal government, to which it was aimed. "District-specific" legislation cannot "implicate the amendment's purpose of protecting states and localities from the federal government."

And if those first two arguments are decided against the city, the brief says, the court should uphold the restrictions as a reasonable response by the government to urban crime and a natural extension of what the brief says are gun-control laws that date back to when the District was the Town of Georgetown.

"In enacting the handgun ban, the Council found that less restrictive approaches would not be adequate," the District's brief states. The council concluded that "the ultimate resolution of the problems of gun-created crimes and gun-created accidents . . . is the elimination of the availability of handguns."

"Our goal is to make sure this law is sustained," Dellinger said. "We will argue the District's law is a reasonable one that singles out a type of weapon that is used in crimes and can be concealed and brought into schools, into government buildings."

Nickles was Fenty's general counsel until two weeks ago, when then-Attorney General Linda Singer resigned in frustration, saying Fenty relied more heavily on Nickles to make key legal decisions.

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