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D.C. Tries to Finesse Gun Ruling

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By Marc Fisher
Thursday, July 17, 2008

Mayor Adrian Fenty and his feisty attorney general, Peter Nickles, stood on the steps of the Wilson Building this week ostensibly to announce how the District will comply with the Supreme Court's rejection of Washington's ban on handguns. But really, they were delivering very much the opposite message: With only the narrowest of exceptions, we're sticking with our gun ban. Don't like it? Sue us.

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"I am pretty confident that the people of the District of Columbia want us to err in the direction of trying to restrict guns," Fenty told me, smiling broadly at the suggestion that what he's really trying to do is make it as hard as possible for Washingtonians to keep a loaded gun at home.

Fenty and Nickles reject any interpretation of the court's decision as a clear statement that Americans may, with very few exceptions, keep and bear what Justice Antonin Scalia called "the quintessential self-defense weapon," the handgun. Rather, the D.C. officials read the decision as an almost academic ruling that although there may be a constitutional right to bear arms to protect yourself, that right is pretty much limited to folks whose house is being broken into right this very second.

The court ruled that there is "no doubt" that "the Second Amendment conferred an individual right to keep and bear arms." But Nickles, the acting attorney general, said that "it's clear the Supreme Court didn't intend for you to have a loaded gun around the house. I don't think the court thought this was going to become a Wild West scene."

So the mayor and the D.C. Council enacted an emergency law setting up a cumbersome mechanism by which residents who want to own a gun legally may register a weapon if they clear a background check, pass a vision test and a written test on gun safety, pay a fee and wait for the bureaucracy to complete all these steps. "There are circumstances where it could take months," Police Chief Cathy Lanier conceded, and you could almost hear the elected officials around her emitting "heh-hehs" of mischievous delight.

Even then, D.C. gun owners would be prohibited from keeping their gun loaded unless they could demonstrate that, as the city's new gun law says, the firearm is "being used against a reasonably perceived threat of immediate harm."

What does that mean? "Somebody's approaching your home," Nickles offered. Or "an actual threat by somebody you believe is out to hurt you." How about if there's been a break-in next door? That's close, he said.

The District is rejecting the most common reading of the Supreme Court's 5 to 4 ruling: that although government is permitted to regulate access to guns -- barring, for example, felons and the mentally ill -- Americans have the right to arm themselves against any threat, however they may define it.

"I don't think they intended that anybody who had a vague notion of a threat should have access to a gun," Fenty told me.

The District is out to prove that the Supreme Court's is not the last word. In truth, on the most divisive constitutional questions, the court only reframes the nation's debate. Scalia's majority opinion deliberately avoided getting into the particulars of the D.C. gun regulation scheme -- an engraved invitation to all parties to flood the courts with litigation.

Judging from opinion surveys over the years, Fenty is surely right that D.C. residents would like to restore their old gun ban. But these matters are not decided by plebiscite. Even if city lawyers believe there's a smidgeon of a chance that some court might let the District impose singularly tight restrictions on the right to bear arms, this last lawsuit demonstrates that, ultimately, the city would lose.

Those on both sides who relish the prospect of years and years of litigation are not likely to have such fun. Congress, still reveling over its latest stomp on any stirrings of democracy in the District, is gearing up for another go. If the lords of the Hill can impose a new fare system on the city's taxicabs, they will think nothing of nullifying whatever gun regulations Fenty and the council create.

Already, members of Congress are pumping out news releases and lining up cable talk spots so they can present themselves in an election year as saviors of Americans' gun rights. With Republicans smelling blood and Democrats quivering in the corner over the possibility that they might be portrayed as soft on gun rights, this is yet another issue that will end up as a reminder that democracy and the District are wholly separate concepts.

Fenty and the council put on a nice show of defiance, but in the end, Congress will demonstrate once again just how little say Washington residents have in their own governance.

Join me at noon today for "Potomac Confidential" athttp://www.washingtonpost.com/liveonline.


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