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Historic Supreme Court Brief Filed in Second Amendment Challenge to D.C. Gun Ban

February 4th, 2008 by Alan Gura

Washington, D.C.—Today, attorneys challenging Washington, D.C’s 31-year-old gun prohibition laws filed their written arguments in the U.S. Supreme Court. Washington, D.C. bans the possession of handguns outright, and further forbids rifles and shotguns from ever being operable in private homes for use in self-defense. The case, District of Columbia v. Heller, is named for Dick Anthony Heller, a private security guard who carries a gun at work, but cannot keep one at home to defend himself and his wife. “I’m fighting for the constitutional right of law-abiding individuals who live in dangerous communities to have a firearm to protect themselves and their families from rampant violent crime,” said Heller.

In March, the U.S. Court of Appeals for the District of Columbia Circuit declared D.C.’s gun prohibition laws to be unconstitutional. The city, with encouragement from the attorneys challenging the gun ban, asked the Supreme Court to review that decision. The Court agreed in November and set oral argument for 10 a.m. on Tuesday, March 18. A final decision is expected by June 30, 2008.

This historic brief marks the first-ever substantive merits argument filed in the Supreme Court on behalf of Second Amendment rights. In the only previous Supreme Court case addressing the Second Amendment, United States v. Miller (1939), the individuals claiming their rights were not represented by counsel and entered no appearance before the Court. This time, Second Amendment rights are being vigorously defended.

“The Second Amendment secures for Americans an individual right to defend themselves and their loved ones, at home, with ordinary firearms,” declared lead counsel Alan Gura of Gura & Possessky, P.L.L.C., who will argue the case before the Supreme Court. “The evidence of this simple truth is overwhelming, whether one looks at the Second Amendment’s text, structure, or history. When a fundamental right is at stake, the Supreme Court should rigorously scrutinize government regulations. And when a city tries to completely ban the exercise of a fundamental right, as Washington, D.C. has, the courts must step in and declare the law unconstitutional. If the D.C. ban is upheld, then every gun law, no matter how invasive, will be rubber-stamped by the courts and the Second Amendment will mean nothing,” added Gura.

“Residents of Washington, D.C. are not second-class citizens,” explained Clark Neily, co-counsel to the respondent and a Washington, D.C.-area public interest lawyer who specializes in constitutional litigation. “They enjoy the same right to defend themselves with ordinary firearms of their choice – including handguns – as the citizens of any other state, none of which bans handguns or functional long guns the way Washington, D.C. does.”

Robert Levy, a senior fellow in constitutional studies at the Cato Institute and also co-counsel to the respondent, stated, “The right to protect oneself in one’s home is among the most fundamental of all rights. The Second Amendment unambiguously states the ‘the right of the people to keep and bear arms shall not be infringed.’ It is time for the Supreme Court to recognize what the vast majority of Americans already recognize - namely, that the Constitution protects their right to keep commonly used firearms in their homes for lawful purposes.”

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March 18

January 22nd, 2008 by Alan Gura

I’m looking forward to arguing the case in the Supreme Court on Tuesday, March 18, at 10:00 a.m.


DOJ’s Brief

January 22nd, 2008 by Alan Gura

Many people are understandably disappointed by the Justice Department’s position in our case. The Department’s fears about the implications of securing a meaningful Second Amendment right are overblown and not grounded in fact or law. Look for our response to their brief, and the others, on February 4.

Meanwhile, insightful commentary on the issue is here.

For background on the DOJ’s position, please see here.

Amici for the City

January 11th, 2008 by Alan Gura

Amicus Curiae briefs for the city have been filed and are now available on our filings page.

Next event:

Our brief, February 4.

DC Merits Brief

January 4th, 2008 by Clark Neily

We have just received DC’s Merits Brief and Joint Appendix.

Supreme Court Agrees to Hear Second Amendment Challenge to D.C. Gun Ban

November 20th, 2007 by Alan Gura

Washington, D.C.—Today, the U.S. Supreme Court announced that it will hear the case of Heller v. District of Columbia, and decide whether the Second Amendment to the U.S. Constitution protects the right to own guns.  At issue is a 31-year-old Washington, D.C. law banning handguns and requiring that all shotguns and rifles be kept unloaded and either trigger-locked or disassembled at all times.  There is no exception for self-defense.

Alan Gura, lead counsel for the Heller plaintiffs said, “The Bill of Rights does not end at the District of Columbia’s borders, and it includes the right to keep and bear arms.  After three decades of failure trying to control firearms in the District, it’s time for law-abiding city residents to be able to defend themselves in their homes.  We are confident the Supreme Court will vindicate that right in Washington, D.C., and across the nation.”

Dick Heller, a District resident who works as an armed security guard protecting the lives of various government officials during the day but is forbidden by District law from keeping a handgun at home to protect himself, explained, “I want to be able to defend myself and my wife from violent criminals, and the Constitution says I have a right to do that by keeping a gun in my home.  The police can’t be everywhere, and they can’t protect everyone all the time.  Responsible gun ownership is a basic right we have as American citizens.”

The Supreme Court has not heard a Second Amendment case since 1939, when it issued a confusing and inconclusive decision in a case involving the interstate transportation of a sawed-off shotgun.  The case ended before the defendant had the opportunity to establish whether sawed-off shotguns are covered by the word “arms” in the text of the Amendment.  But regular shotguns, along with rifles and handguns, are precisely the kind of “arms” the Framers had in mind in drafting the Second Amendment.  The District’s functional firearms ban defies the Framers’ obvious intent to ensure that the government could never disarm citizens in America, as other governments have done elsewhere.

Clark Neily, a public interest lawyer specializing in constitutional law cases and co-counsel to the Heller plaintiffs said, “The Second Amendment is every bit as much a part of the Bill of Rights as freedom of speech, freedom of the press, and freedom of religion.  The framers of our Constitution made clear that the government has no more business disarming citizens than it has censoring them or telling them what values to hold sacred.”

“The citizens of Washington, D.C. ? indeed, all Americans ? deserve a clear pronouncement from the nation’s highest court on the real meaning of the Second Amendment,” stated Robert Levy, a senior fellow in constitutional studies at the Cato Institute and co-counsel to the Heller plaintiffs.  Levy added, “Later cases will decide what gun regulations are constitutional, but an outright ban on all functional firearms clearly is not constitutional.”

Heller will likely be the highest-profile case on the Court’s docket this term, and it promises to be among the most closely watched constitutional law cases in decades.  At stake is not just the question of whether people have a constitutional right to own guns, but also the Court’s willingness to stand up for rights that are clearly expressed in the Constitution, even when those rights are strongly opposed by a vocal minority.

Oral argument will most likely be scheduled for March or April, with a decision expected by June 2008.

Response to D.C.’s Cert Petition Filed

October 4th, 2007 by Clark Neily

We filed our response to D.C.’s cert petition today.  The response explains that while we agree the Supreme Court should review the case, we disagree with many of D.C.’s key assertions.  Supreme Court Rule 15.2 provides that the response brief should address “any perceived misstatement of fact or law in the petition that bears on what issues properly would be before the Court if certiorari were granted.”  Accordingly, our response discusses a number of points we believe D.C. got wrong in its petition, including particularly its attempt to portray this case as only involving a handgun ban, when in fact as we have previously explained (and as the D.C. Circuit specifically found), the challenged laws amount to a total ban on all functional firearms within the home.

Other problems with D.C.’s cert petition include its mistaken characterization of the D.C. Circuit’s Parker decision as being “outside the mainstream of American jurisprudence,” which it plainly is not, and D.C.’s extraordinary claim that its gun ban has been a resounding public policy success, which of course it has not. 

D.C. now has the opportunity to file a reply brief.  We expect the Supreme Court to announce in early November whether it will grant cert.  We also have our conditional cross-petition pending, in which we have asked the Supreme Court to review the D.C. Circuit’s decision that only one of our clients, Rich Heller, has standing to challenge D.C.’s gun ban.  So the remaining plaintiffs are still very much in the case.

D.C. Circuit’s Order on Motion to Lift Stay of Mandate

September 25th, 2007 by Clark Neily

The D.C. Circuit has denied our motion to lift the stay of its mandate.  But in doing so, the court made some interesting observations about the self-defense exception that D.C. now claims exists in the spirit, though not the text, of D.C. Code § 7-2507.02, which requires even lawfully owned firearms to be unloaded and either disassembled or trigger-locked at all times.  Of particular interest are the court’s observations about the dangers posed by a rifle’s range and the pellet spread of a shotgun, as well as the difficulty of “handling such long weapons in enclosed spaces — particularly by smaller individuals.”  Those points obviously go to the reasonableness of allowing people to defend themselves with, say, a high-velocity hunting rifle that can put a round through an entire apartment building, but forbidding them from using a pistol that is actually designed for use in close quarters and presents much less risk to innocent bystanders. 

 The order is here:  D.C. Circuit’s Order Denying Motion to Lift Stay of Mandate.

D.C.’s Opposition to Motion to Lift Stay of Mandate

September 24th, 2007 by Clark Neily

D.C. has filed this Opposition to Motion to Lift Stay of Mandate.  We expect to file our reply early next week.

Bob Levy in Legal Times

September 24th, 2007 by Clark Neily

This week’s edition of Legal Times features a piece by Bob Levy called Loaded for the High Court in which he responds to D.C.’s assertion that its gun ban is constitutional because (1) it only applies to handguns; (2) the Second Amendment only restrains the federal government, not states or local government entities like D.C.; and (3) D.C.’s gun ban is reasonable because it has saved “thousands of lives.”  As Bob explains, none of those claims stands up to scrutiny.

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