Twists and Turns Mark Path of DC Gun Case Appeal
February 1, 2008

by Joseph P. Tartaro
Executive Editor

Some who believe the Second Amendment to the Constitution guarantees an individual right to keep and bear arms have argued for years that all one had to do to turn back the gun grabbers was to bring a clear gun case before the Supreme Court.

Not so fast, others argued, including many firearms civil rights organizations and well known lawyers. They warned that no one can predict how any particular high court panel will rule in any given case that the judges decide to review. The court has a history of surprising both the right and the left.

Perhaps the court itself was heeding the warnings because it did not accept a clear gun rights case since the 1939 Miller decision, a decision so confusing that both pro- and anti-gun forces can quote from it.

There are all kinds of variables that can affect any given case, including the plaintiffs and defendants, the lawyers, the judges, the precedents, and even the amicus briefs that are filed.

However, we finally have a pure Second Amendment case before the Supreme Court and organizations and scholars supporting both sides have filed briefs covering what they consider to be almost every aspect worth discussing with the nine-judges in the Supreme Court.

With that said, lo and behold, someone comes up with another angle, as reported on Page 1 of this issue. It’s the solicitor general of the US and he has placed the Bush Administration and perhaps the Republican Party as well in a very tight spot. Judging from Internet reaction so far, gunowners are far from happy with amicus brief from the Administration.

Yes, But…
Yes, the Bush Administration reaffirmed its long-held position that the Second Amendment guarantees and individual right. But it added that, “like other constitutional rights, that individual right is subject to reasonable restrictions.”

The District’s highly restrictive law, the brief said, bans “a commonly used and commonly possessed firearm in a way that has no grounding in the Framing-era practice.” It should be subject to heightened judicial scrutiny, the government added, but the appeals court was wrong to declare the law unconstitutional “just because it takes a categorical approach” in banning handguns.

As might be expected in a presidential election year, some commentators on the Internet are suggesting that in order to salvage GOP prospects in November, the various Republican candidates for the presidential nomination should speak out on the issue, especially to separate themselves from the Administration’s curiously convoluted brief. Whether they will or won’t, it was no surprise when the court took the DC gun case that gun rights would be a key issue in the 2008 elections.

The brief was among nearly 20 filed Jan. 11, the last day for friend-of-the-court briefs either supporting the District government or taking no position on the law. Now, attorneys for the plantiff Heller and other attorneys and scholars supporting the DC residents have until late February to file their brief telling the high court why the appellate decision should be upheld. The case is still unscheduled but will likely be heard in March and a decision should be issued before the court adjourns in June.

Rather than helping the court to reach a decision one way or the other, the solicitor general’s opinion gives the judges an opportunity to also play lip service to the Second Amendment while send the case back down to a lower court for more years of delay.

NRA Statement
In response to the Bush Administration’s brief, Wayne LaPierre, executive vice president of the National Rifle Association, and Chris Cox, director of the NRA’s Institute for Legislative Action, released the following statement:

“The position of the National Rifle Association is clear. The Second Amendment protects the fundamental, individual right of law-abiding citizens to own firearms for any lawful purpose. Further, any law infringing this freedom, including a ban on self-defense and handgun ownership, is unconstitutional and provides no benefit to curbing crime. Rather, these types of restrictions only leave the law-abiding more susceptible to criminal attack.

“The US Government, through its Solicitor General, has filed an amicus brief in this case. We applaud the government’s recognition that the Second Amendment protects a fundamental, individual right that is ‘central to the preservation of liberty.’ The brief also correctly recognizes that the DC statutes ban ‘a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice,’ the Second Amendment applies to the District of Columbia, is not restricted to service in a militia and secures the natural right of self-defense.

“However, the government’s position is also that a ‘heightened’ level of judicial scrutiny should be applied to these questions. The National Rifle Association believes that the Court should use the highest level of scrutiny in reviewing the DC gun ban. We further believe a complete ban on handgun ownership and self-defense in one’s own home does not pass ANY level of judicial scrutiny. Even the government agrees that ‘the greater the scope of the prohibition and its impact on private firearm possession, the more difficult it will be to defend under the Second Amendment.’ A complete ban is the kind of infringement that is the greatest in scope. The US Court of Appeals for the DC Circuit correctly ruled that DC’s statutes are unconstitutional. We strongly believe the ruling should be upheld by the US Supreme Court.”

All of these recent developments in the DC gun case are being played out against a backdrop of resignations and firings in the District’s legal world.

Attorney Alan Morrison, who appeared likely to argue the District of Columbia’s case in District of Columbia v. Heller before the Supreme Court in March, has reportedly been sacked by the city.

DC Lawyer Fired
According to Legal Times, Morrison’s departure followed the Dec. 17 resignation of former DC Attorney General Linda Singer. Morrison had come on board as a special counsel to Singer, returning from three years at Stanford Law School. He reportedly had previously argued 16 cases before the high court.

Morrison was reportedly fired by Peter Nickles, who serves as general counsel to District Mayor Adrian Fenty, and who was named as a temporary replacement for Singer.

According to The Washington Post, Morrison’s departure could be a major setback for the city’s ability to argue their case before the Supreme Court. The way it was handled, as described by The Post, raised some eyebrows. The newspaper said Morrison met with Nickles on Dec. 21 but there was no mention that he was about to be dismissed.

Morrison first got word not from Nickles, but from Deputy Attorney General Eugene A. Adams, whom Nickles asked to tell Morrison that he was being dismissed.

That’s the kind of environment surrounding this particular case.

But if DC didn’t have enough troubles, it got another shot recently.

On Jan. 10 the District of Columbia Court of Appeals unanimously upheld the May 2006 decision of District of Columbia Superior Court dismissing a lawsuit, filed in January 2000, by the District a and the families of nine victims of criminal shootings that occurred in Washington. The district and the plaintiffs had sued the manufacturers under the district’s so-called Assault Weapons Manufacturing Strict Liability Act which imposes automatic and absolute liability on manufacturers for injuries resulting from criminal shootings in the district, even if, the criminal shootings happened years after the manufacture or sale.
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