The Volokh Conspiracy

This spring, the DC Court of Appeals ruled in the case of Parker v. District of Columbia. The case had three important legal holdings:

1. Five of the six plaintiffs did not have standing to sue, because the mere threat of criminal prosecution for exercising their constitutional rights was not sufficient to confer standing. The ruling was based on an extension of a previous DC case, Navegar, which had involved challenges to the federal ban on "assault weapons."

2. The DC government's complete ban on handguns (other than handguns which were registered in DC before the ban went into effect) violated the Second Amendment.

3. DC's ban on the possession of functional long guns was also a violation of the Second Amendment. DC requires that all rifles and shotguns be locked up or disassembled, and there is no exception in the law for self-defense.

DC's attorneys asked the Court of Appeals to stay its mandate, so that the DC ordinances could remain in effect while DC petitioned the Supreme Court for a writ of certiorari.

But when DC filed its petition, the petition flagrantly violated DC's representations to the Court of Appeals. DC's petition for a writ of certiorari presents one, and only one question: "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns." This question of course addresses the handgun ban, but does not address the separate holding of the ban on defensive long guns. By Supreme Court rules, the DC petition was required to list all statutes or ordinances which are at issue in the petition, and the DC petition does not list the ordinance containing the self-defense ban.

The strategic implications of DC's decision are enormous. It appears that DC has decided that its long-gun self-defense ban is constitutionally indefensible. The most logical inference is that DC (despite statements by the Mayor at press conferences) has concluded that it cannot convince the Supreme Court that the Second Amendment is not an individual right. DC is retreating to position that the individual Second Amendment right is not violated by a handgun ban, as long as individuals can possess other guns.

Consistent with the DC retreat, the cert. petition itself is quite short on legal reasoning, and amounts to a mini-policy paper on the alleged horrors of allowing licensed citizens to possess registered handguns in their own homes.

The only thing that the DC cert. petition says about the self-defense ban is in a footnote: "The majority read this provision to forbid loading, assembling, and unlocking even a lawfully possessed firearm for use in self-defense. App. 55a. On that reading, it held the provision unconstitutional. The District does not, however, construe this provision to prevent the use of a lawful firearm in self-defense."

Well, if DC thinks that the Court of Appeals "reading" of the straightforward language of the DC Code is incorrect, then the DC cert. petition could have asked the Supreme Court for a second reading. But the petition did not.

Instead, DC falsely told the Court that a person in DC "may lawfully possess a rifle or shotgun to protect himself."

Accordingly, Alan Gura, the lead lawyer for the appellants in the case, has moved that the DC Court of Appeals lift its stay of its mandate, regarding the striking of the unconstitutional ban on defensive long guns. The motion is available on-line, as are all other filings in the case. Gura's motion is an excellent example of forceful yet temperate legal writing.

Gura has also filed, with the Supreme Court, his own petition for a writ of certiorari, asking for a cross-appeal of the DC Court of Appeals' highly restrictive rule on standing, which he says is contrary to other Circuits, and to Supreme Court precedent.

DC now has 30 days to respond to Gura's cross-petition, so the time when the Supreme Court will decide on whether to grant cert. is probably around November 5-12. Accordingly, should the Court grant cert., the case would probably among the very last for which oral argument was held in the coming Term.