DC Gun Ban in the Supreme Court

What Now?

    Since the Supreme Court announced that they are going to review the DC gun ban case, now is probably a good time to review the case and its convolutions.

    This case has been in the system for a number of years and its journey to the Supreme Court has been anything but a straight shot.  Originally the case involved six DC residents who felt that their constitutional rights were being infringed by the District's strict gun control laws.  While many believe that the case was developed and sponsored by the libertarian Cato Institute, there has never been any formal connection to Cato.  Several people involved in the case do have close ties to Cato, but Cato did not fund or guide the case.

    Besides the Second Amendment questions at the heart of this case, there is also a question of when a citizen has the right to challenge a law as unconstitutional.  The Supreme Court has always held a liberal position on “standing” where constitutional rights are concerned, but the DC Circuit has developed their own precedents on “standing” which are much more constricting.  Of the six original plaintiffs in the “Parker” case, only one, Dick Heller, was determined by the court to have “standing” in the case.  The court said that the other five had not had their rights violated since they had not been “harmed” for exercising or attempting to exercise those rights.

    This is one of those convoluted, lawyerly conundrums that place ordinary citizens in a no-win position.  If the government passes a law that is unconstitutional, the only reliable way you can be eligible to sue to have the law repealed is to violate the law and be prosecuted for it; then you have “standing.”  The problem with that is that if you intentionally take actions in violation of a law, you are seen as a “scoff-law,” and a wacko.  Then you have the additional burden of fighting the criminal case against you as you try to bring an action in defense of the Constitution.  Even those who support your position tend to shy away from someone bold (crazy) enough to do such a thing.  Just ask Hollis Wayne Fincher, the Arkansas man who decided to challenge the National Firearms Act by openly building, owning, and shooting machine guns.  He believed he was laying the groundwork for a constitutional challenge to the NFA, but the judge in his criminal case refused to allow any constitutional arguments to be made and none of the major pro-gun organizations or big name Second Amendment attorneys were willing to come to the aid of a “kook” who would openly violate the law in the way that Fincher did.  He was convicted and sent to prison.

    The decision of the Appeals Court to recognize only Heller in the DC case has resulted in the case having two different pieces.  The first piece, the challenge to DC’s ban on possession of handguns in the home, is now known as “Heller v. DC” or simply “Heller” and is the case the Supreme Court has decided to review.  At the same time, a cross petition has been filed asking the Court to reinstate the other five original plaintiffs and consider their arguments along with Heller’s; this is again, “Parker v. DC.”  The Supreme Court has not yet commented on whether they will take up this issue, but if they do, it will not only strengthen the case against DC’s gun laws, it will also be a step toward righting the wrong of requiring a citizen to become a criminal in order to challenge an unconstitutional law.

     In their announcement, the Supreme Court specifically spelled outthe questions they will address in Heller: "Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"  Answering this question should entail clarification as to whether the Second Amendment is an individual right and whether that right extends to restricting the states and subordinate authorities as well as the federal government.  These two are, of course, the key questions that have been languishing in the political wings for the past 70 years or more.

    If everything proceeds in a normal fashion, the Supreme Court should hear arguments in this case in March or April of 2008 and deliver a decision by the end of June – just in time to make the Second Amendment a center-piece of the 2008 Presidential and Congressional Elections. 

    Regardless of the Supreme Court’s decision, the battle to preserve and restore our fundamental rights will continue to be fought at the ballot box.  And whatever the Court decides, it should help to rally support for pro-rights candidates.  Between now and then though, the field of candidates running for President will have been trimmed down to just two or three.  It is critical that GunVoters take action now to make sure that those two or three include viable candidates who recognize the importance of firearms ownership as a civil right.  With that goal in mind, I again call on all gun rights organizations to take action to deny the Republican nomination to Giuliani, McCain, or Romney, all of whom have proven themselves to be no friends of gunowners.

    Stay tuned.  There will doubtless be much more to say about this case and its political ramifications.