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Guest Post: Parker v. DC Revisited

September 25th, 2007 by Halli

George A. Reimann

The case of Shelly Parker, et al. v. District of Columbia was decided on March 9, 2007, when the United States District Court of Appeals for the District of Columbia reversed the ruling of a lower district court. The Appeals Court concluded that “…the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.”

The District refused to accept the decision of the Appeals Court. While the D.C. Code, § 7-2502.07, banning the possession of all functional firearms within the home and making no exceptions for self-defense has been declared unconstitutional, it is still being enforced. The District (the appellees) filed a motion for a rehearing of the case en banc (by all 13 judges), but this motion was denied on May 8. The appellees then requested a 90-day delay plus two 30-day extensions of the delay of the mandate to strike § 7-2502.07 so that it could develop and file its petition to the U.S. Supreme Court to hear this case. The appellees filed their petition for certiorari on September 4.

This case is now known as D.C. v. Heller and the District becomes the appellant and Heller becomes the appellee. Dick Heller is a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center and he wishes to possess a handgun at his home. Heller applied for a registration certificate to own a handgun and his application was denied. Had Heller been a retired police officer the District could have granted him a registration certificate and could have done the same if Heller had attempted to register a long gun, as opposed to a handgun. Barring the carrying of a pistol within his home amounts to a complete prohibition on the lawful use of a handgun for self-defense. Therefore the Appeals Court held that the denial of the registration certificate was unconstitutional and it is this denial that is Heller’s distinct injury.

Curiously, the District’s petition to the Supreme Court offered no indication that it accepted any portion of the Appeals Court’s judgment, yet the District’s petition addresses only the question of “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” Apparently the District has concluded that the long gun self-defense ban is constitutionally indefensible. So the District’s petition claims that “[a] law that bans handguns but permits private ownership of rifles and shotguns does not deprive anyone of the right to keep and bear Arms, however that right is construed.”

Since the District believes that functional long guns are now legal, the lead attorney for Parker et al., Alan Gura, has petitioned the Court of Appeals to remove part of its stay of the mandate, thereby allowing District residents to lawfully possess functional long guns for self-defense. Gura’s motion is dated Sept. 12 and no response from the District or the Court is available.

The District’s decision to restrict its petition only to the issue of handguns should cause major problems since it conflicts with its representations to the Court of Appeals. The petition was described as “quite short on legal reasoning, and amounts to a mini-policy paper.” The rules of the Supreme Court require that the District include all subjects at issue in its petition. But the petition does not include the ordinance containing the self-defense ban and it falsely told the Court that a person in the District “may lawfully possess a rifle or shotgun to protect himself.”

So it appears that the District’s petition is poorly done as well as defective. It may even offend the liberal justices on the Supreme Court. Four justices must agree to accept the case and if they do this decision should be made by mid-November and the case should be heard near the end of the coming term ending in June, 2008.

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Posted in Constitutional Issues | 3 Comments »

3 Responses

  1. ctdonath Says:

    Re: “no response from the District or the Court is available.”

    DC has responded: http://www.scotusblog.com/movabletype/archives/DC%20gun%20reply%20CA%209-24-07.pdf

  2. ctdonath Says:

    Re: “no response from the District or the Court is available.”

    As of this morning, DC Circuit Court has ruled the stay will NOT be partially lifted:
    http://dcguncase.com/blog/wp-content/uploads/2007/09/dc-circuit-order-denying-motion-to-lift-stay.pdf

    Upshot: Heller, the only plaintiff currently with standing, only asked about handguns – not shotguns/rifles – and thus is not in a position to make a request not involving handguns. Also, for several reasons the court sees that the “functional gun ban” issue may be raised at the Supreme Court level. The stay stays.

  3. G. A. Reimann Says:

    ctdonath:
    Many thanks for the heads-up on the refusal to partially lift the stay. I figured it would take a week or more to get a response.

    Will change my article to reflect the new information.

    Thanks

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