The statement of the case lays out the matter presented before the appeals court. It is intended to be a brief summary of law and the current state of the case, so that the court will know what has happened to bring the case before them.
For over a quarter-century, the District of Columbia has forbidden citizens from possessing functional firearms within their homes. Handguns not registered prior to 1976 cannot be lawfully possessed within the city, D.C. Code §§ 7-2502.01(a), 7-2502.02(a), and all lawfully registered long guns (i.e., shotguns and rifles) must be kept unloaded and either disassembled or bound by a trigger lock, with no exception that would permit a citizen to assemble or unlock the weapon for otherwise lawful home self-defense. D.C. Code § 7-2507.02. Even the movement of lawfully possessed pre-1976 handguns from room to room within one?s home is forbidden without the pistol license that everyone ? including Defendants ? acknowledges is unobtainable. D.C. Code §22-4504(a).
This paragraph lays out the basic provisions of the laws that are being challenged. It's a pretty stark demonstration of how bad things are in The So-Called Capital Of The Free World
Plaintiffs seek to establish that the Second Amendment to the United States Constitution secures them an individual right to keep functional firearms, including handguns, within their homes, unrelated to service in any organized militia.
Exact wording can be very, very important in matters of law. Here, we should note that one of those important words in the passage above is "organized"; the United States Code
divides the militia into organized and unorganized components. The organized militia is the National Guard and Reserve; the unorganized militia is, basically, everyone else (well, everyone else who is male and between the ages of 17-45).
It is also worth noting the narrow scope of this statement. This case isn't about any substantial meaning of "bearing" arms, only possession of those arms within the residence of the owner. It doesn't say registration is a no-no. It doesn't argue about the District's silly definitions of machinegun or assault weapon, or the double-plus-ungood ban on anything that isn't a bolt-action hunting rifle, as a correspondent described
. It is only, and solely, about the most basic right to keep a functional firearm in your home.
All of those arguments would step into the murky world of cost-benefit analysis and "compelling state interest" arguments. Make no mistake about it; though we can win the war of facts soundly on those grounds, they are a deathtrap in the legal realm. Right now, we have no Constitutional framework of support for the right to keep and bear arms
. The words of the Constitution are stark and unyielding, but they have been buried under a mountain of precedential obfuscation. Judges are experts at finding ways to rule for the State given even a little cover for doing so.
It is not the object of this litigation to engage in a policy debate over the merits of gun control. While policy questions might be relevant in evaluating the constitutionality of ordinary measures seeking to strike a reasonable balance between the explicit right of citizens to ?keep and bear arms? and legitimate governmental goals of promoting safety and order, this is not such a case. If the Second Amendment guarantees any individual rights whatsoever, the District?s total prohibition on the home possession of handguns and functional long guns by law-abiding adults cannot stand.
This is it exactly. Right now, in the courts, it is almost as if the 2nd Amendment doesn't exist. If we restrict our examination to the 20th century and later, we have almost nothing. US v Miller said the right things but ruled the wrong way on a technicality; US v Emerson did the same more recently. The Lopez case was decided on the commerce clause, not the 2nd. While there have been legislative victories, and while some states have had successful challenges to gun control laws, victories at the federal level have been almost nonexistent.
In order to even begin turning that around, and establishing a permanent 2nd Amendment right that can be defended in court, we need to establish several things:
- That the Second Amendment grants an individual right;
- That the Second Amendment right is not conditional upon membership in an organized militia. (I would rather not have any militia condition at all, but I will accept membership in the unorganized militia as a condition so long as the definition remains substantially similar);
- That laws can be passed which offend the 2nd Amendment right, and that those laws can be struct down via court challenge.
Those three things are what this case is trying to achieve. Once we have settled them we can argue about lesser bans, how to balance state interests in specific cases, and so on. But before we can do any of that, we need to establish the most basic existance of the 2nd Amendment right. Yes, it is that bad.
During oral argument below, the District Court sua sponte explored the issue of Plaintiffs? standing to bring the lawsuit. In response to a direct question from the District Court, Defendants confirmed that should any Plaintiffs violate the challenged laws, they would be prosecuted. The District Court reached the merits of Plaintiffs? claims, and held that the Second Amendment does not secure any individual rights to keep and bear arms. The District Court granted Defendants? motion to dismiss and denied as moot Plaintiffs? motion for summary judgment.
It would be nice if the law, particularly Constitutional law, did not depend on luck. Sound legal arguments, the weight of precedent, and justice should be the determining factors in a lawsuit. Unfortunately, that's not always the case, and especially so here.
Readers may remember the Seegars case
, which was closely tied to this one, with a similar premise but much more complex legal arguments. Though there are clearly differences in strategy between the two cases, the biggest difference in their outcomes so far comes down to luck. Both the Seegars and Parker cases need to establish standing to bring their suit. The Seegars case has already lost on the standing issue, in part because the Department of Justice lawyers vigorously argued that they would exercise selective prosecution. This is sort of like a local sheriff telling his officers to only give out speeding tickets to people from out of town; it's not right
, but how do you challenge it?
In this case, the Parker counsel got lucky. They hadn't sued anyone with big-money legal talent, and the City's lawyers admitted in court that the plaintiffs would be prosecuted if they violated the law. Despite subsequent backpedalling, that statement is on the record, and it basically hands the Parker plaintiffs the standing issue on a silver platter.
Although we then lost the case at the District Court level on the merits, that was pretty much to be expected. We are dealing with that appeal now.
This Court subsequently denied Defendants? motions to summarily affirm the decision below or remand with instructions to dismiss the case on standing grounds, and granted Plaintiffs? motions to have the case proceed on the merits. The Court instructed the parties to brief the merits of Plaintiffs? Second Amendment claims, as well as the issue of standing.
And, of course, this is exactly what we are doing now: briefing the merits. We could still lose on the standing issue, but the court (in refusing to summarily dismiss the case) has admitted that there is at least a legal question here. This bodes well for us on the issue of standing. We still don't know what this Court thinks of the 2nd Amendment, though the panel of judges seems favorable
-- insofar as such tea leaves can be reliably read.