Washington Lawyer

Cover Story

August 2007

 

Gun Fight

By Joan Indiana Rigdon

 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

In July 1976, less than three years after the District of Columbia was granted the right to govern some of its own affairs, its newly elected city council asserted its new powers by passing one of the nation�s most controversial laws on one of its most controversial issues: gun control.

 

In direct defiance of Congress and the White House, the council outmaneuvered the National Rifle Association (NRA)�then a million members strong�and voted 12�1 to place an outright ban on almost all handguns.

 

The goal was to save the District�s citizens from a rising tide of violent crime. By the time the ban was enacted, the Bureau of Alcohol, Tobacco and Firearms or ATF (now known as the Bureau of Alcohol, Tobacco, Firearms and Explosives) had singled out the District as one of 11 cities for a crackdown on handgun violence. Guns were top of mind. In addition to the usual run of murders, rapes, and robberies, there had been two recent attempts to murder President Ford with a pistol (albeit in California), and in nearby Baltimore, a three-year-old had shot and killed a six-year-old.

 

Under the ban, known as the Firearms Control Regulations Act of 1975, all handguns in the District were declared illegal unless they were registered before the ban took effect. Registered guns were restricted, too: they were to be kept in the home, unloaded and disassembled, or if assembled, disabled by a trigger lock or some other means.

 

The ban further forbade District citizens from carrying their registered weapons, either openly or concealed, unless they were on their own property. (Later, the ban was amended to forbid the movement of guns on the owner�s property, too, which meant owners could not legally transport their registered guns from room to room within their homes.)

 

The ban was, and remains, the most stringent in the country. But it was daring for another reason, too: it tested the limits of the District�s newly granted autonomy.

 

Under the Home Rule Act, the District�s citizens were given the right to elect their own city council and mayor. The council was given the authority to legislate on local matters, subject to congressional approval. But it was not allowed to amend its own criminal code. As it turns out, that would remain the sole province of Congress until 1979.

 

On the advice of the staff of Rep. Walter Faunteroy, the famed civil rights activist who was then serving as the District�s first delegate to Congress, the council sidestepped this limit by declaring its gun ban to be part of its health code, not its criminal code.

 

When Congress held hearings on the legality of the ban, a freshly elected Texas Republican named Ron Paul testified the ban was �flat-out illegal.� He predicted, �I don�t think this law will hold up � this law is going to be challenged and it is going to be thrown out.�

 

Yet somehow, the District�s handgun ban has stood, almost entirely unchallenged, for three decades. Until now.

 

Parker v. District of Columbia

In March 2007, a three-member panel of the United States Court of Appeals for the District of Columbia Circuit struck down the heart of the District�s ban on the grounds it violates the Second Amendment. In so doing, the court concluded the Second Amendment guarantees an individual right to keep and bear arms, not just a collective right that hinges upon service in a militia.

 

The case in question is Parker v. District of Columbia, which originally was filed in 2003 in the U.S. District Court for the District of Columbia Circuit.

 

In May 2007, the court declined to hear the case en banc, and the District petitioned for a 90-day stay of mandate, which was granted. That means the District may continue to enforce its handgun ban through Monday, August 6.

 

Between now and then, it is expected that the District will appeal the case to the United States Supreme Court. District of Columbia Mayor Adrian M. Fenty has said he would instruct his lawyers to �explore every legal option that will uphold the city�s gun ban,� which implies an appeal to the Supreme Court. Indeed, the court said it granted the District a stay of mandate based on its expectation the District would seek certiorari. District of Columbia Solicitor General Todd Kim declined to comment on the District�s plan, but insiders confirm an appeal is likely.

 

Complicating matters, the National Rifle Association�which fears the possibility that the Parker decision will not be upheld by the Supreme Court�is backing congressional legislation that would repeal the District�s ban. The District of Columbia Personal Protection Act is being sponsored by Sen. Kay Bailey Hutchison (R-TX) and Rep. Mark E. Souder (R-IN). Nearly half the Senate has signed on to the Hutchison bill, and Souder�s cosponsors number 235.

 

Neither bill has seen congressional action since 2005, but the Parker team is worried. �If the legislation were enacted, the Parker decision would be mooted and vacated. Frankly, that would be a disaster for the Second Amendment,� says Alan Gura, lead counsel for the Parker plaintiffs and a partner at Gura & Possessky, P.L.L.C.

 

Gura�s faith that the Supreme Court will uphold Parker has put him at odds with the NRA; he finds himself in the odd position of urging gun ownership advocates to vote against the bills that would repeal the ban. Meanwhile, gun control advocates also are in a bind. Fighting for the D.C. gun ban means supporting an appeal to the Supreme Court. If the Court grants cert and then strikes down the ban, that would pave the way for challenges to gun control laws all over the country.

 

Parker was no accidental challenge. It was a test case that had been carefully crafted by Bob Levy, a senior fellow in constitutional studies at the libertarian think tank the Cato Institute.

 

Levy wasn�t just looking to strike down the District�s handgun ban. He wants to get the case before the Supreme Court, where he hopes to convince the Court to adopt an individual rights view of the Second Amendment. Depending on which side is speaking, that would either be a reversal or a clarification of the only Second Amendment case the Supreme Court has ever decided, United States v. Miller, in 1939.

 

To David Gossett, who helped write a joint amicus brief in support of the District�s handgun ban, an individual rights reading would require a reversal of Miller. �The Supreme Court in Miller made it quite clear that the Second Amendment, as far as Congress and the Founders were concerned, is about the right of people to band together in a militia,� says Gossett, a partner at Mayer, Brown, Rowe & Maw LLP. The Second Amendment is the only amendment that has a prefatory clause, �� and that clause has a clear purpose.�

 

Arguments that the Second Amendment rights extend beyond militia service are wrong, Gossett contends. �It�s losers� history that they�re focused on.�

 

Gura counters that Miller explains that when people are called to militia duty, �they are expected to bring arms supplied by themselves. Clearly to the extent that the Founders were concerned about preserving the militia, they saw the right to keep and bear arms as essential to that purpose. Which is not to say that�s the only purpose they had in mind.�

 

United States v. Miller

Miller involved two men who were indicted for crossing state borders with an unregistered sawed-off shotgun in violation of the National Firearms Act of 1934. The defendants� counsel argued, among other things, the act was a violation of the Second Amendment.

 

The Court disagreed, saying the arms referred to by the Second Amendment must have �some reasonable relationship to the preservation or efficiency of a well regulated militia.� Without proof that a sawed-off shotgun fell in this category, the Court said it �could not conclude that the Second Amendment guarantees the right to keep and bear such a weapon.�

 

In its analysis, the Court declared the Second Amendment�s �obvious purpose� is related to the upkeep of a militia, in accordance with the amendment�s preamble, �A well regulated Militia, being necessary to the security of a free State �� It did not state the amendment�s purpose was related to an individual right to bear arms outside of a militia.

 

Gun ownership advocates argue the preamble is an example of what the people may do with guns they keep and bear, not a limit. �The Constitution contains three preambles: �We the People, �� the preamble to the Copyright and Patents clause,� and the one in the Second Amendment, Gura says. �And what the courts have consistently held, quite logically, is that preambles are nice, flowery language, but they don�t limit or contain the operative clause. The militia clause gives a reason, but it doesn�t give the only reason. It can�t negate completely the fact that the right of the people� is to keep and bear arms.

 

Paul Rothstein, who teaches constitutional law at the Georgetown University Law Center, thinks Miller is confusing. �It is being read different ways by different people and different courts. It wasn�t clear whether Miller was saying, �This is not an individual right. This is just a right of state militias.� Or, whether it was saying, �This particular type of gun was a sawed-off shotgun that wasn�t ever used by militias. Individual people have the right to have guns that the militia would have used.��

 

Dennis Hennigan, counsel for the Brady Center to Prevent Gun Violence, thinks Miller is hard to misunderstand. �People get all involved in, �Is the right collective? Or, is the right individual?� It�s actually much simpler than that. The Miller Court says, quite expressly, that the purpose of the Second Amendment is to ensure the continued viability of state militia and that the right guaranteed must be understood with that in mind. Nine other circuit courts have said that�s what Miller said. The court of appeals panel said the Second Amendment is not limited to militia service, but that it also guarantees a right to possess guns for self-defense or hunting�that is private purposes. Those purposes are unrelated to militia service. So on the face of it, the Parker majority ruled in utter contradiction to the Miller holding.�

 

How the Courts Read Miller

For 68 years, courts interpreted Miller as the Supreme Court�s definitive statement that Second Amendment rights are collective, not individual.

 

Then, about a decade ago, things changed. �There was a concerted effort by a small group of right wing academics in the 1990s to create a question over the meaning of the Second Amendment,� Gossett says.

 

The NRA�s campaigning on the subject so offended former Supreme Court Chief Justice Warren E. Burger that he declared the Second Amendment to be �the subject of one of the greatest pieces of fraud, I repeat the word �fraud,� on the American public by special interest groups that I have ever seen in my lifetime.� Burger declared the NRA had �misled� Americans and had �far too much influence on the Congress of the United States than as a citizen I would like to see�and I am a gun man.�

 

Gossett says the NRA was successful in recasting the meaning of the amendment in the minds of the judiciary. �You then get judges who are active members of the Federalist Society to buy into it, which all leads up to the Fifth Circuit�s decision in Emerson.�

 

With its 2001 decision in United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit broke ranks with Miller. Emerson presented the question of whether the Second Amendment protects the right of an individual under a domestic restraining order to keep and bear arms.

 

The case involved a man who was placed under a restraining order after having threatened his estranged wife and daughter. In its 77-page decision, the Fifth Circuit opined at length on the origins of the Second Amendment, and declared that it guarantees an individual right to bear arms. Among other cases, the majority cited the 1990 Supreme Court decision in United States v. Verdugo-Urquidez, in which the Court held that �the people� of the First, Second, Fourth, Ninth, and Tenth Amendments are individuals, not states.

 

While the Emerson court held that Second Amendment rights are individual, it also found they are not absolute. The court declined to extend those rights to people under domestic restraining orders.

 

In a special concurrence, Circuit Judge Robert M. Parker said the majority decision had gone beyond the scope of the case. �Nothing in this case turns on the original meaning of the Second Amendment, so no court need follow what the majority has said in that regard,� he wrote.

 

Gossett agrees. �The Fifth Circuit�s decision in Emerson is pure dictum,� he says.

 

Ashcroft Memo

Dictum or not, Emerson gained immediate traction with the Executive Branch. On Nov. 9, 2001, three weeks after the Emerson decision�and just two months after the terrorist attacks of September 11�Attorney General John Ashcroft issued a memo to all United States attorneys, endorsing the Fifth Circuit�s view that the Second Amendment protects an individual right to bear arms, with reasonable restrictions.

 

�In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment,� Ashcroft wrote.

 

Judge Karen LeCraft Henderson, in her dissent in Parker, observed that the Ashcroft memo is not a legal precedent, and neither are any of the federal judiciary�s ruminations about what the framers intended when they wrote the Second Amendment. Federal judges found it �irresistible� to extemporize on meaning of the Second Amendment, she noted, belittling their treatises as �page after page of �dueling dicta.��

 

No matter what others have said about Second Amendment rights, Henderson took view that, �Miller�s label is the only one that matters. And unless and until the Supreme Court revisits Miller, its reading of the Second Amendment is the one we are obliged to follow.�

 

A Tale of Two Lawsuits

Although many have assumed that Parker is backed by the gun lobby, that is not the case. In fact, due to disagreements over strategy, the NRA has tried to derail the Parker litigation to prevent it from getting to the Supreme Court. The tale, which is spelled out in court documents relating to the Parker case, is an amusing illustration of how politics make strange enemies.

 

Levy�s strategy was to file a test case that could only be decided on Second Amendment grounds, and that had the greatest chance of making its way to the Supreme Court.

 

He wanted his case to be as clean as possible, meaning that the plaintiffs would be citizens with no criminal records, and their complaint would be strictly limited to the meaning of the Second Amendment, so the case could not be decided on any other grounds.

 

�All of the challenges that had been mounted in the past had been by criminals, seeking some excuse for felony charges, all of which were sort of absurd,� Levy says. �There hadn�t been a good test� in the courts before Parker.

 

The summer before Parker was filed, the NRA met with Levy to discuss the case. According to the Parker team�s description of the exchange, the NRA�s lawyers said they were worried Parker might prevail in appellate court but �meet a more hostile reception at the Supreme Court� based on the �near-term composition� of the Court. At that point, Justice Sandra Day O�Connor was on the Court and was considered a majority maker, but her position on gun control was unclear.

 

The NRA counsel then �encouraged Parker counsel either not to file the case, or, if the case were filed, to build in a �trap door� that would give the court a basis, if it chose, to avoid a four-square holding on the Second Amendment and thereby minimize the likelihood of the Supreme Court reaching that issue,� according to court documents.

 

Levy was determined to maintain control over Parker, which Levy�who once ran his own technology investment firm�is personally funding, and which Gura is working on for below market rates. �We didn�t want Parker portrayed as litigation that the gun community was sponsoring. We wanted to retain complete control over plan of selection of the parties to file complaint and the arguments that they would present to the court and the timing and content of the briefs,� Levy says.

 

�After all, the NRA had 26 years to do it, and the fact that they didn�t suggest it was time for other people to step in,� Levy says. (Twenty-six years refers to the time between the passage of the District�s handgun ban, and 2002, when Parker was being researched.)

 

Parker was filed on Feb. 10, 2003. The NRA responded by filing its own test case, Seegars v. Ashcroft on April 4, 2003. Seegars was filed in the same court, and has since been renamed Seegars v. Gonzales. The lead counsel for Seegars had conducted some early research for the Parker case. Gura derides Seegars as a �copycat� case.

 

In a messy courtroom battle, the NRA tried and failed to have Seegars combined with Parker. Seegars moved through the court more quickly than Parker, but it eventually was rendered moot when all five of its plaintiffs were denied standing.

 

Though Parker prevailed in the D.C. Court of Appeals, that court denied standing to five of its six plaintiffs, including the case�s namesake. Parker now has only one plaintiff, Dick Anthony Heller, a District police officer who is licensed to carry a handgun as part of his job protecting the federal judiciary at the Thurgood Marshall Federal Judiciary Building in the District.

 

Standing

In both Seegars and Parker, plaintiffs lost their standing because they did not meet the standing doctrine, as set forth in the highly controversial 1997 decision in Navegar, Inc. v. United States.

 

In Navegar, the U.S. Court of Appeals for the D.C. Circuit ruled a Miami-based maker of a top-selling semiautomatic assault gun could not challenge the federal assault weapons ban unless its products were specifically named in the ban, which they are not.

 

Since Navegar, D.C. plaintiffs who wish to challenge laws that they have not yet broken must first prove the District has singled them out for enforcement. All of the plaintiffs in Seegars and Parker mounted pre-enforcement challenges to the law, but none could prove the District had singled them out for enforcement.

 

The only reason Parker plaintiff Heller still has standing is that, unlike the others, he tried to register a handgun he planned to keep in his District home, and his application was denied. The denial of registration is considered sufficient cause to grant standing.

 

In both Seegars and Parker, the appellate court applied Navegar grudgingly. In Seegars, the court noted that although it was faithfully applying Navegar, Navegar was not consistent with the Supreme Court�s 1979 decision in Babbitt v. United Farm Workers National Union. In Babbitt, the Court ruled a person could challenge a law that �affects a constitutional interest� without breaking that law, as long as he could show that he was likely to be prosecuted if he did.

 

�There�s been a lot of criticism of Navegar because it�s fairly apparent that Navegar is wrong,� Gura says.

 

Writing for the majority in Parker, Judge Laurence Silberman signaled as much: �� unless and until this court en banc overrules these recent precedents [Navegar and Seegars], we must be faithful to Seegars just as the majority in Seegars was faithful to Navegar,� he wrote.

 

Gura does not think the Navegar precedent will last. �Navegar is a dead case walking,� he says. �At some point in time, in the very near future, the D.C. Circuit will address it and get rid of it. I can�t imagine that with two panels within three years saying it�s inconsistent with Supreme Court precedent, that they�re going to allow it to fester and make problems. Personally my opinion is Navegar is gone. It�s just a question of when and how they�re going to bury that precedent.�

 

Crystal Ball

Hennigan believes the Supreme Court is likely to grant cert in Parker. �They need four votes to take it up. And it�s certainly possible to count four votes for taking that up. I would think most likely four would probably be Scalia, Thomas, Roberts, and Alito. But you never know,� he says.

 

Jonathan Katz, a Second Amendment lawyer who is a partner at Marks & Katz, LLC, is not sure the Supreme Court will take the case. �It seems that the Supreme Court has been very successful in avoiding this issue and will probably find a way to sidestep it here. One of the reasons for review is that there is a split in the circuits. The Supreme Court can always decide that just one circuit following a different path from the rest of them is not enough.�

 

Rothstein agrees, for different reasons. Although the Court did take up cases on partial-birth abortion and greenhouse gases, in general, he says, �I think this Court has indicated they want to steer away from the major social issues. I see them as deciding more mundane cases like commercial construction. They may not want to reach out and get this.�

 

The Justices

If the Supreme Court does grant cert, the District will find it toughest to win over the four justices noted by Hennigan.

 

In his confirmation hearings in 2005, Chief Justice John G. Roberts Jr. indicated he did not think Miller had settled the issue of what the Second Amendment means. �That�s still very much an open issue,� he testified. He also said Emerson alone (Parker would not be decided for another year and a half) constituted a split among the circuits.

 

In extrajudicial writing, Justice Antonin Scalia has espoused an individual rights view. In his book, A Matter of Interpretation: Federal Courts and the Law, he wrote the Founders considered �the right of self-defense to be absolutely fundamental.�

 

Justice Clarence Thomas has signaled a similar outlook. In a concurring decision in Printz v. United States (the Court�s 1997 decision that struck down the background check requirement of the Brady Act), he said scholarship shows the right to keep and bear arms �is a personal right.� He also said he would welcome a chance to review a Second Amendment case.

 

Justice Samuel Anthony Jr. Alito hasn�t written on the Second Amendment. But when he was on the U.S. Court of Appeals for the Third Circuit he wrote, in a minority opinion (United States v. Rybar, 1996), he favored striking the federal machine gun ban on commerce clause grounds. At the Brady Center, Hennigan says, �We felt very strongly that he had shown a right wing-activist tilt in his judging. He was the first nominee to the Supreme Court that our organization has ever opposed.�

 

Justice Anthony M. Kennedy �may be the swing vote,� Hennigan believes, but he is not aware of Kennedy�s thinking on the issue.

 

In her confirmation hearings in 1993, Justice Ruth Bader Ginsburg declined to answer questions on her view of the Second Amendment.

 

In his confirmation hearings in 1994, Justice Stephen G. Breyer said in 14 years, �I have never heard anyone seriously argue that any [gun control legislation] was unconstitutional in a serious way.� Asked about Miller, Breyer said the decision was �fairly limited� and �narrow.� Asked if he would attach special significance to the capitalization of certain first letters in the amendment, Breyer said he would consider it.

 

Justice David Hackett Souter hasn�t written or spoken on his interpretation of the Second Amendment, but he most often votes with Justice Ginsburg. Justice John Paul Stevens hasn�t declared himself on the Second Amendment, either.

 

Of course, past statements by the justices are no indication of future votes. �It�s difficult for one to predict the outcome of a case based on what a judge has said or done,� Hennigan says.

 

Effect on the District

As the appeals process grinds on, the District�s handgun ban hangs in the balance. For decades, the District has said the ban has reduced murder and suicide rates. Its view was supported by a 1991 study published by the peer-reviewed medical journal, New England Journal of Medicine, that examined homicides and suicides in the District, starting almost a decade before the ban, and ending almost a decade after. The study compared these rates with corresponding data for nearby metropolitan areas in Maryland and Virginia, where there is no ban.

 

The authors concluded that the adoption of the handgun ban coincided with a 25 percent decline in gun-related murders and a 23 percent decline in gun-related suicides in the District. The study didn�t find a similar drop in neighboring Maryland or Virginia, and it didn�t find an increase in District murders and suicides that did not involve guns.

 

The ban �prevented an average of 47 deaths each year after the law was implemented,� the study concluded.

 

Critics of the study have questioned its methodology and noted the last data it considers is from 1987. They note that in 1988, the District�s overall murder rate jumped 64 percent, and it continued climbing through 1993.

 

Levy believes the ban is the reason the District�s crime rate is so high. His logic: only criminals have handguns, and that honest citizens are denied the right to self-defense.

 

Levy knows many disagree, but in Parker, he says, it is not up to his team to prove the ban causes or encourages crime. �The rule is if the government wants to violate or truncate your constitutional rights, it�s the government�s burden, first, to prove that it has a compelling need to do so; second, that what it proposes to do will be effective; and third, that there is no less invasive way.

 

�So, it�s not up to me to show that the ban creates the crime. It�s up to the government to show that gun control improves the situation, and there�s no evidence to suggest that. All the evidence seems to point the other way.�

 

Rothstein agrees the Court is not likely to find the ban an effective solution. �Guns can come in from outside D.C. because criminals can get guns. It is only the law-abiding people that are restricted by the handgun ban. The Court may hold that the ban is not effective in promoting this compelling state interest,� Rothstein says. (There is no question that handguns flow into the District, despite the ban. Last year, D.C. police confiscated 2,655 unregistered firearms.)

 

Who Is the Militia?

One of the gun control policies that would seem to fit the text of the Second Amendment is in force across the Atlantic, in Switzerland. There, every able-bodied man between the ages of 20 and 42 must keep in his home a military firearm�an assault rifle or a semiautomatic pistol�and ammunition. The point: to participate in compulsory service in the Swiss militia, which includes mandatory target practice.

 

The practice came under attack in 2001, after a man took his military-issued assault rifle into the Parliament building in the canton of Zug and shot dead 14 people before killing himself. The shooter was said to have been upset with transportation officials, based on a fight he had had with a bus driver two years earlier.

 

Hennigan does not think the Swiss system would ever be welcome here, not even by the NRA. �That�s not something that the NRA would want. This is kind of the contradiction in their position. A true militia, he says, is subject to rule by government.� According to Congress, a militia is controlled by the state. But, �to the NRA, gun ownership is a private, individual right,� Hennigan says. The idea of any government controlling the guns �is anathema to the NRA. So the NRA doesn�t believe in a militia.�

 

That contrasts with the gun lobby�s occasional position on how to read the militia clause of the Second Amendment. �They say that if the militia is the issue, we�re all the militia. You�re in the militia; I�m in the militia. So we all have the right to bear arms,� Hennigan says.

 

Shadow of Virginia Tech

The debate over gun control always has been highly emotional, but it took on a renewed urgency in April, when a mentally ill English major named Seung-Hui Cho used two semiautomatic handguns to methodically execute 32 Virginia Tech teachers and students before killing himself.

 

Virginia Tech is �one more example of why guns are the scourge of America,� Gossett says.

 

Levy predicted Virginia Tech will impact Parker insofar as it has invoked �the usual cries from the usual suspects for more gun control. But I think the more rational view is the controls that are now in effect are the cause of the problem, not the solution. After all, it takes a long time to kill 32 people. Why the hell didn�t someone step in sooner and stop this guy? Because nobody could carry a weapon on the Virginia Tech campus,� Levy says, referring to the fact the university is a gun-free zone.

 

If the Supreme Court grants Parker cert, Levy believes the justices will consider the case on the facts, even though they are affected as humans by the horrors at Virginia Tech. �These stories have a short shelf life. What counts is that the justices read this from a matter of law. And that�s the way one would hope that is how the justices look at this case. Parker is not talking about concealed carry. It�s not talking about outdoor use. We�re talking about a gun in your home for use in the home. That has nothing to do with Virginia Tech.�

 

Freelance writer Joan Indiana Rigdon wrote about the Spirit of Brown in the Marsh issue.