by Dave Workman
Senior Editor
Anti-gun Washington, DC, Mayor Adrian M. Fenty has admitted, along with other gun control advocates, that the Mar. 9 federal appeals court ruling in Parker v. District of Columbia has them worried, perhaps even politically and philosophically terrified. (Click to read related Hindsight column from this issue).
So deep are their concerns, in fact, that according to The Washington Post, the city is now seriously questioning whether it should carry an appeal to the US Supreme Court for fear that a loss there will begin the process of unraveling decades of restrictive gun laws across the country. The city has until Aug. 11 to make that decision.
The Parker ruling held the city’s 30-year-old gun ban to be unconstitutional under the Second Amendment. The court also ruled that the Second Amendment protects an individual civil right, something anti-gunners have argued is not true since they began interpreting the 1939 ruling in US v. Miller.
The Post quoted Josh Horwitz, executive director of the Coalition to Stop Gun Violence, admitting, “Despite all the rhetoric about ‘We’re taking this all the way to the Supreme Court,’ you have to really think this one through. Everyone is cognizant of the fact that this is probably the high-water mark for Second Amendment cases.”
The report set off a furious debate on The Post’s website where public comments were accepted, and the newspaper also hosted an on-line discussion with historian and legal scholar Sanford Levinson, author of The Embarrassing Second Amendment.
Levinson, who believes the Amendment protects an individual right, suggested that if the Parker case does go to the Supreme Court, it could be a close call on how the case is decided.
“I’d be more than a little surprised if any of the four ‘moderates’ on the Court—Ginsburg, Breyer, Souter, and Stevens—would vote to uphold the DC Circuit,” Levinson said. “So that means we have to predict the five ‘conservatives.’ I think it’s quite likely that Scalia and Thomas would vote to uphold the Circuit, and I think there’s some reason to think that Alito might as well. Roberts has no known track record on the Second Amendment. Kennedy, as always, could turn out to be the person in the middle.”
He noted, however, that “it takes four votes for the Supreme Court to grant certiorari, and it may be that six of the Justices will be cautious enough to prefer to wait for another day (and to see the results of the next presidential election).”
Levinson acknowledged that the high court may not take this case, based on their feel for the political climate.
“Judges are quite aware of the political seas within which they swim,” he observed, “and sometimes time their decisions accordingly. One can argue, of course, that this is a corruption of the notion that law should be entirely separated from politics, but, as an empirical matter, I don’t think that one can understand American constitutional history without realizing that members of the Court have often been cognizant of political realities (and have sometimes gotten into hot water when they haven’t).
“For better and worse,” Levinson continued, “the Supreme Court, unlike circuit courts of appeal, has complete control over its own docket, so it is always reasonable to wonder why they choose to take certain cases and ignore others (that many people think are easily as significant as the cases on which they grant review).”
Anti-gunners are evidently not holding out the hope that the Supreme Court may decide to not hear an appeal, if one is filed. According to The Post, Mayor Fenty knows he is in “a high-stakes debate over the Second Amendment” and he does not want to be in the position of loser in a case that could “undercut decades of hard-fought gun control legislation across the country.” No anti-gun mayor wants to be remembered as the man whose efforts brought down gun laws around the country.
The Post also noted that gun control advocates have been “meeting in conference rooms to analyze the potential damage that could be done nationwide if the DC law falls apart.”