Judges evaluate an argument on gun access

By Lyle Denniston
on Sep 28, 2007 at 4:35 pm

In a highly unusual order, two judges of the D.C. Circuit Court appeared to have narrowed a major gun control ruling, and in doing so gave their view on a central argument the District of Columbia government has made in its Supreme Court appeal seeking to enforce its flat ban on handguns in Washington, D.C. The District does not ban rifles or shotguns. The judges’ comments came as the Circuit Court turned down a request by gun rights advocates that it bar the local government from enforcing a requirement that rifles and shotguns kept in the home be disassembled or have trigger locks engaged. The Court’s order was issued Tuesday but has not been widely noted. It may complicate the further briefing in the Supreme Court on the city’s appeal (07-290) and in a cross-appeal by D.C. residents (07-335).

Both sides in the hotly disputed lawsuit over the D.C. gun possession law have understood the Circuit Court’s March 9 ruling as having struck down not only the ban on possession of any handgun, but also the disassemble-or-lock provision of the law both as it applied to handguns and to rifles and shotguns.

When D.C. opponents of the city gun law returned to the Circuit Court on Sept. 12, they interpreted the Court’s decision as having struck down Code Sec. 7-2502.07 — the disassemble-or-lock section — because that provision “bans the home possession of all functional firearms — handguns, rifles and shotguns.” Saying that the D.C. government had told the Supreme Court in its petition (07-290) that the section did not reach rifles and shotguns that were used for self-defense, the opponents read that as a concession that the section was invalid, and could not be enforced. Thus, the request urged the Circuit Court to block that provision as it applied to rifles and shotguns, giving city residents acccess in their homes to guns that would work. The city government opposed that request, saying it made no such concession.

The Circuit Court, in its Tuesday order, commented that “our opinion does not specifically address the constitutionality of that statute as it applies to shotguns and rifles,” because it had found that only one D.C. resident — Dick Heller — was entitled to bring the lawsuit, and he had “complained solely about the restrictions on ownership and use of a handgun.”

The order, signed by Senior Judge Laurence H. Silberman, the author of the March 9 ruling, and Circuit Judge Thomas Griffifth, who joined Silberman, went on to say that the D.C. government had advanced in the Supreme Court an argument “not presented in our court” — that the District’s ban on handguns can be justified so long as rifles and shotguns can be utilized in the home for self protection.” (In fact, the local government’s petition states that the question raised in its appeal this way: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” Phrased that way, the question appeared to narrow the claim the District was making for its law, suggesting it would be valid as long as long guns remained available.)

If the Supreme Court reaches that argument, and upholds the handgun ban only because “long guns were permitted,” the Circuit Court said in its order, then the Justices would have to confront the question of whether the disassemble-or-lock provision would have to be struck down because a disassembled or locked rifle or shotgun might be “virtually useless to face an unexpected threat” in the home. A footnote continued with a further analysis of the characteristics of rifles and shotguns when used in tight quarters.

Circuit Judge Karen LeCraft Henderson, who had dissented from the March 9 ruling, went along with denying the gun rights advocates’ request to bar the assemble-and-lock provision. but indicated she did not join the remainder of the order with its commentary.

(The Circuit Court order can be found by those with PACER accounts on the Court’s website under docket 04-7041, Parker v. District of Columbia, entry dated Sept. 25, 2007.)

With the help of Howard Bashman of How Appealing and Eugene Volokh of Volokh Conspiracy, we can now provide the full text of the order:

“”BEFORE Henderson [Footnote 1] and Griffith, Circuit Judges, and Wilberman, Senior Circuit Judge.

“ORDER
“Upon consideration of appellants’ motion to lift stay of mandate and the opposition thereto, it is
“ORDERED that appellalnts’ motion to lift (partially) our stay of mandate be denied.

“Appellants’ contention is that appellees’ petition for certiorari concedes the unconstitutionality of D.C. Code Section 7-2507.02 as it requires the disassembling of shotguns and rifles or the placement of trigger locks, making such arms practically useless for self defense [Footnote 2]. Therefore, appellants argue, our mandate holding this provision unconstitutional should issue. But our opinion does not specifically address the constitutionality of that statute as it applies to shotguns and rifles because the only plaintiff we concluded had standing under our precedent was Dick Heller, who complained solely about the restrictions on ownership and use of a handgun. Parker, 478 F.3d 370, 373-76 (D.C. Cir. 2007). At least one other plaintiff (Gillian St. Lawrence) did address Section 7-2507.02 as it applied to shotguns but she did not have the same injury as Heller -– the denial of a license. Id. To be sure, as our opinion suggested, the Supreme Court may well disagree with Seegars, 396 F.3d 1248 (D.C. Cir. 2005), and conclude that all the plaintiffs have standing.

“In any event, the District’s petition for certiorari makes an alternative argument not presented in our court -– that the District’s ban on handguns can be justified so long as rifles and shotguns can be utilized in the home for self protection. The Supreme Court, if it should reach that argument -– and conclude it was constitutional to ban handguns in the home if long guns were permitted -– would necessarily be obliged to consider the impact of Section 7-2507.02, since a disassembly or trigger lock requirement might render a shotgun or rifle virtually useless to face an unexpected threat.[Footnote 3]

“[Footnote 1] Judge Henderson concurs in the denial of the motion.
“[Foonote 2] Appellants’ motion does not mention the other provisions we held unconstitutional with regard to handgun possession — D.C. Code Sections 22-4504 and 22-4506 — nor does the District in its opposition.
“[Foonote 3] The District of Columbia Council never contemplated the specific use of a rifle or shotgun in that situation. Had the Council contemplated such, it would, perforce, have had to consider the danger posed by a rifle’s range and a shotgun’s pellet spread, as well as the difficulty one would have handling such long weapons in enclosed spaces -– particularly by smaller individuals. Appellees’ brief at 17 did suggest that any gun (including a pre-1976 legal handgun) might be used in self defense in a “true emergency,” otherwise described as “genuine imminent danger.” But the Code does not allow for such, nor did the District ever specify how one would define the circumstances under which one could assemble or unlock a rifle or shotgun to face a “true emergency” (professionals might well be amused at such a hypothetical). The truth is that neither the Code nor the District, in this litigation, ever suggested that a rifle or shotgun, as opposed to a handgun, could be legally employed in self defense.”