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I would expect that just about every gun owner who cares about his right to own a gun now knows that the U.S. Supreme Court has agreed to hear the District of Columbia’s appeal of the Parker suit. But for those who have been visiting Mars the last few months, a little background.
The District of Columbia has the most absurd gun control laws in the United States. If you had a handgun in D.C. in 1976, and you registered it, you can still have it. But if you didn’t have that handgun registered there in 1976, there is no legal way to have it in your D.C. residence now. All long guns must be registered—and at least you can still bring them with you if you move into D.C. (There are no gun stores in D.C.,[1] so there’s no legal way for a resident to buy a gun from outside D.C.)
Even worse, if you legally own a firearm, you are not allowed to have it loaded and accessible if someone kicks in your door. Guns must be either disassembled, or locked up so that they can’t be used. There are quick opening gun safes out there, but if you are one of the hundreds of thousands of extremely poor people that live in D.C., you may not be able to afford one of those….
The D.C. law also bans the carrying of handguns, but was so defectively worded that it did not just ban the carrying of handguns in public, but within your own home.[2] I don’t know that anyone has ever been prosecuted for it, but carrying a handgun from the bedroom to your front hall was technically unlawful.
Over the last twenty years or so, a lot of people have challenged the constitutionality of the D.C. gun control law—but as a general rule, these were not the kind of people who we wanted to argue the case. A lot of them were drug dealers who were caught carrying a gun, often with long criminal histories. Not surprisingly, the courts didn’t take these Second Amendment claims very seriously.
This time around, however, the Cato Institute gathered together a bunch of perfectly upstanding residents of D.C. to challenge this absurd law—and we won in the D.C. Court of Appeals. Back in March, Judge Laurence Silberman wrote an opinion that found that:
1. The Second Amendment protects an individual right, not dependent on being a member of the militia.
2. That includes the right to own a handgun.[3]
Wow! Not surprisingly, the District of Columbia appealed to the Supreme Court. After all, if this decision were allowed to stand, residents of D.C. would be allowed to own handguns, and use guns of all sorts in self-defense in their homes—like nearly all other Americans. They would no longer be in terror of criminals kicking in the door and committing unspeakable crimes. And that would clearly be unacceptable to the government of D.C.
Now, here’s a little surprise. Contrary to popular opinion, the U.S. Supreme Court is not required to hear every appeal. There are some categories of appeals that they must hear, but in general, if a U.S. Court of Appeals makes a decision, and you, as one of the parties, do not like the result, you can only request the Supreme Court hear your appeal. The Supreme Court then decides whether this case is important enough to be worth their time. If four of the nine justices decide that the case is important, then they issue what is called a “writ of certiorari,” which grants an appeal.
How does the Court decide that a case is important? Generally, there should be an important legal question that has not been adequately decided by the lower courts, or where different appellate courts have come up with different answers—what is called a “circuit split.” In this case, the 5th Circuit and the D.C. Circuit Court of Appeals have decided that the Second Amendment protects an individual right to possess a handgun (subject to certain reasonable regulations), while all the other circuits have come to the opposite conclusion.
Normally, the loser in the Court of Appeals is who petitions the Supreme Court for a writ of certiorari. In this case, our side was so confident of the rightness of Judge Silberman’s opinion—and so concerned about the Supreme Court justices that President Hillary Clinton will appoint after she wins the election next year—that they also decided to ask the Supreme Court to hear the appeal.
The Supreme Court has done exactly that. On November 20th, the Court granted a writ of certiorari in the D.C. lawsuit.[4] As is usually the case on an appeal, the Court specified exactly what narrow questions of law they expect both sides to argue: “Whether the following provisions, D.C. Code §§ 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?”[5]
It appears that D.C. must submit their briefs arguing against an individual right to possess handguns by January 4, 2008. Our side then gets thirty days to respond to their briefs (so by February 3). D.C. gets another thirty days to respond to our side’s response.[6] The expectation is that the Supreme Court will hear oral arguments sometime thereafter, but certainly before June of 2008.
Now, at this point, you are probably wondering, “What is going to happen? Are we going to win?” If Supreme Court decisions were just about which side has the stronger argument or the most evidence, this would not be something over which I would lose any sleep. The gun control side has one of the most pitifully weak historical arguments that I can ever recall hearing. I debated the meaning of the Second Amendment with Professor Jack Rakove, a Stanford University history professor, at Houston Community College in early November. I have never seen someone so utterly unprepared to defend his position. It was definitely like shooting fish in a barrel. Increasingly, their side is reduced to suppositions about what they think might have been the intent of the Framers; our side has gobs of very, very clear evidence of intent. The historical facts are overwhelmingly on our side.
However: being right sometimes isn’t enough at the Supreme Court. In the February 1, 2004 issue of Shotgun News I wrote about my distrust of the Supreme Court for its willingness to ignore history when it suits their needs.[7] In the meantime, two members of the Court have been replaced. I have more confidence in the intellectual integrity of Chief Justice Roberts than in the late Chief Justice Rehnquist, and far more confidence in Associate Justice Alito than I did in the now retired Justice O’Connor.
If Supreme Court justices make their decision based on what they believe gun control law should be, we may have a real fight on our hands. While even some liberals oppose gun control—or at least recognize that it doesn’t work—in general, the farther to the left someone is, the more likely they are to regard gun control as a good thing—and there are several quite seriously left-wing justices sitting up there, such as Ginsburg, Stevens, and Breyer. Kennedy tends to fly down the middle because both of his wings get roughly equal exercise. Justice Thomas is a certain vote for our side, and I am pretty sure that Justice Scalia is, also. Roberts and Alito are also considered very likely votes for our side.
Justice Souter is hard to read (which is part of why President Bush the Elder picked him as a “stealth nominee” some years ago). We can hope that his mugging by a group of young toughs in D.C. in 2004[8] has made Souter realize that there are disadvantages to being unarmed and outnumbered.
I have had the opportunity to work closely with the lead attorney a number of prominent lawyers, many of them law professors, representing our side. This has been a very interesting and encouraging experience.
So, what can you do to help? Let me explain that in court cases such as this, both parties to the suit file briefs making their legal arguments. In addition, other groups file what are called amicus curiae briefs, which is Latin for “friend of the court.” In theory, people who have no direct interest in the suit file amicus briefs as a way of letting the Court know information that might otherwise not end up in the briefs filed by the parties. (Remember that there is a limit to the number of pages in the brief that each party files.)
As you might expect, there will be amicus briefs filed by all sorts of organizations on both sides of this dispute. Everyone tries to coordinate their efforts, so that the various amicus briefs don’t cover material that someone else is covering. It turns out that Academics for the Second Amendment, run by Professor Joseph Olson of Hamline University School of Law, is preparing one of the amicus briefs focused on the historical issues. I hope that this won’t be a surprise—but I’m part of the research team preparing that brief.
It also turns out that filing amicus briefs isn’t free. There are filing fees, printing costs, and such, that will run into the many thousands of dollars. If you want to do your part, it’s time to reach into your wallet, and pull out some money. Academics for the Second Amendment is an Internal Revenue Code 501(c)(3) organization, so contributions to it are deductible on your federal income taxes. Send money to:
Academics for the Second Amendment
Post Office Box 131254
St. Paul, MN 55113
Questions? You can email Professor Olson: jolson@gw.hamline.edu
Over the next few issues, I will be sharing some interesting material that will be going into the briefs—but not quite yet. Let’s just say that we’re keeping some material in reserve, until we are ready to spring it on our opponents in the briefs.
Clayton E. Cramer is a software
engineer and historian. His sixth book, Armed America: The Remarkable Story
of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007),
is available in bookstores. His web
site is http://www.claytoncramer.com.
[1] Lubna Takruri, Associated Press, “Rev. Jackson, Protesters Rally Near Gun Shop,” WTOP, August 28, 2007, http://www.wtopnews.com/?nid=25&sid=1233722, last accessed November 24, 2007.
[2] Tony Mauro, Legal Times, March 12, 2007, http://www.law.com/jsp/article.jsp?id=1173434606378, last accessed November 24, 2007.
[3] Shelley Parker, et. al. v. District of Columbia, 04-4071 (D.C.App. 2007), 20, 53.
[4] Robert Barnes, “Justices To Rule On D.C. Gun Ban,” Washington Post, November 21, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/11/20/AR2007112000893.html?hpid=topnews?referrer=email, last accessed November 24, 2007.
[5] “Order List: 552 U.S.,” November 20, 2007, available at http://www.scotusblog.com/wp/wp-content/uploads/2007/11/1120-orders.pdf, last accessed November 24, 2007.
[6] David T. Hardy, “Thoughts on Parker’s questions presented,” Arms and the Law, November 20, 2007, http://armsandthelaw.com/archives/2007/11/thoughts_on_par.php, last accessed November 24, 2007.
[7] Clayton E. Cramer, “Why This Supreme Court Can’t Be Trusted,” Shotgun News, February 1, 2007, 22-23, http://www.claytoncramer.com/Why%20This%20Supreme%20Court%20Cant%20Be%20Trusted.pdf, last accessed November 24, 2007.
[8] “Justice Souter Mugged,” CBS News, May 1, 2004, http://www.cbsnews.com/stories/2004/05/01/national/main615063.shtml, last accessed November 24, 2007.