DC Mayor, Anti-Gunners Face Dilemma in High Court Appeal
June 1, 2007

by Joseph P. Tartaro
Executive Editor

In my Hindsight column in the Apr. 10 issue of Gun Week, I discussed a dilemma facing pro-gunners posed by the Mar. 9 ruling by the US Court of Appeals for the District of Columbia Circuit in striking down a Washington, DC, gun law in the Parker case decision written by Senior Judge Laurence H. Silberman.

That opinion not only overturned the District of Columbia’s draconian 30-year-old ban on loaded guns in the home, it also clearly defined the Second Amendment as guaranteeing an individual right.

In this column, I’d like to consider the dilemma the same case poses for anti-gunners—not just in the city of Washington, but across the country. It is a dilemma that must cause shivers down the spines of the mayors of New York City, Chicago, San Francisco and other strongholds of the anti-gun faith. As Dave Workman reports in his Page 1 (click to read) skyline story, the mayor of Washington and many anti-gunners are not sure they want to petition the Supreme Court of the United States (SCOTUS) for a review of that landmark decision.

As previously reported in Gun Week, and other news sources, the city’s appeal for a rehearing of the Parker case by the entire DC Circuit Court of Appeals was rejected in early May on a 6-4 vote.

City officials, anti-gun organizations and many newspaper editorials continue to criticize the appeals court’s decision, but they are uncertain about the wisdom of filing an appeal to SCOTUS. In some minds, if they appeal and the court grants certiorari, they see the prospect of the whole anti-gun house of cards coming down.

Not Likely
That’s not likely, considering that the Parker ruling, the 5th Circuit Court’s opinion in the Emerson case and even the Justice Department’s commentary on the Second Amendment all hold that while the Second Amendment guarantees an individual right some reasonable limits may be constitutional.

Thus, Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, is quoted as admitting, “We’re very concerned about this case because if it’s allowed to stand, and if it becomes the law of the land, it places in jeopardy just about every other gun law you can think of.”

Not coincidentally, The Washington Post reported that “the Brady Campaign has launched a series of articles attacking individual sections of the appeals court ruling. Whether the organization believes its attack will tilt a Supreme Court ruling is not clear, but what is clear is that they are trying to dismantle Silberman’s ruling in the “court of public opinion,” The Post article noted.

Attorney Robert Levy, who brought the case with attorneys Alan Gura and Clark Neily, told The Post as well as Workman that it is not the city’s option to “engage in strategic lawyering” but to defend its statute or repeal it. Such a repeal would be an admission that the law not only was wrong to begin with but that it hasn’t worked, and that is not likely to occur while Mayor Adrian M. Fenty continues to insist, as he did to The Post, that, “The residents of the District of Columbia expect us to fight aggressively to make our laws as strong as possible. We ultimately believe we will prevail.”

The residents of the District of Columbia do not appear to share their mayor’s view of the city’s gun laws if one can judge by opinion polls which show a vast majority approving of the DC circuit court’s ruling.

Washington Post staff writer Carol D. Leonnig on May 17 took the view that the gun ban ruling puts Fenty on the spot precisely because going to Supreme Court poses risks for him and his fellow anti-gunners.

Fenty must make a risky choice about the District’s gun ban: defend it before the Supreme Court or write new, looser laws governing how city residents can keep guns in their homes, Leonnig summarized.

Website Forum
The Post is taking the Parker case seriously, not only reporting on it in depth, but hosting a public forum with University of Texas law professor Sanford Levinson on its website (washingtonpost.com) on May 17. In his Page 1 story, Workman provides some key quotes from Levinson’s responses to questions on The Post’s forum (click to read).

Leonnig’s article in The Post reported that “Gun-control advocates are quietly acknowledging that Fenty is in a difficult spot. Across the country, many of them and their attorneys have been meeting in conference rooms to analyze the potential damage that could be done nationwide if the DC law falls apart. Some fear that an adverse Supreme Court ruling could lead to more gun lobby challenges and the collapse of tough gun regulations in New York, Chicago and Detroit. Other potential casualties include federal laws that require background checks for gun buyers or ban the manufacture of machineguns for civilian use.”

“Making the right choice is going to be a very difficult decision,” Leonnig quotes Joshua Horwitz, executive director of the DC-based Coalition to Stop Gun Violence. “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 Post article noted that “Legal experts say gun rights activists have a lot of advantages at this time in history and in this specific suit originally filed in 2003 by six DC residents who said they wanted the right to own guns.

According to The Post, Helmke said: “The DC law is an easy one to shoot at. Factually, it’s a tougher one to get behind and defend. Background checks and assault weapons ban—you can defend all day long. Why is this the one we’re going to be taking up to the Supremes?”

Meanwhile, attorney Robert A. Levy, the self-made millionaire who is funding the Parker case, provided advice of sorts for Fenty in a May 16 op-ed column in The Hill, a congressional newspaper.

“Should the city ask the Supreme Court to review the Parker case?” Levy posed the question.

‘No Brainer’
“Sounds like a no-brainer,” Levy wrote. “After all, the city has nothing to lose. If the Supreme Court overrules the appellate court, the mayor will be off the hook. He can continue peddling his fantasy world in which the city’s handgun ban protects Washingtonians from gun violence. On the other hand, if the Supreme Court affirms the lower court decision, DC, will be no worse off than it would have been if it hadn’t asked for review. The handgun ban, as it now stands, will be history.”

Levy then reviewed the political and legal stratagems involved in the question of appeal to SCOTUS.

Levy concludes his column by noting, “. . . The question whether to seek Supreme Court review is one subject where the city’s interests and the Parker plaintiffs’ interests converge. For the mayor, it’s a no-lose proposition. Either he wins at the Supreme Court or he faces the same music that he’d face without court review. For the plaintiffs, it’s always been their ultimate goal to have the high court weighs in, for the first time since 1939, on this threshold Second Amendment dispute: Does the right to keep and bear arms belong to us as individuals, or does the Constitution merely recognize the collective right of states to arm the members of their militias?”

At the moment, it seems that the anti-gunners are the ones who are most afraid of what the high court might rule. That may change, but for now, the prospect of a possible definite ruling on what the Second Amendment really means looms large.
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