Gun Ban Ruling Puts Fenty on the Spot
Going to High Court Would Be Risky
By Carol D. Leonnig
Washington Post Staff Writer
Thursday, May 17, 2007; B01
D.C. Mayor Adrian M. Fenty must make a risky choice about the District's gun ban: defend it before the Supreme Court or write new, looser laws governing how city residents can keep guns in their homes.
As he wades into a high-stakes debate over the Second Amendment, the new mayor of the nation's capital faces the possibility that the city could lose the case and undercut decades of hard-fought gun-control legislation across the country.
Gun-control advocates are quietly acknowledging that Fenty (D) is in a difficult spot. Across the country, many of them and their attorneys have been meeting in conference rooms to analyze the potential damage that could be done nationwide if the D.C. law falls apart. Some fear that an adverse Supreme Court ruling could lead to more gun lobby challenges and the collapse of tough gun regulations in New York, Chicago and Detroit. Other potential casualties include federal laws that require background checks for gun buyers or ban the manufacture of machine guns for civilian use.
"Making the right choice is going to be a very difficult decision," said Joshua Horwitz, executive director of the D.C. based Coalition to Stop Gun Violence. "Despite all the rhetoric about 'We're taking this all the way to the Supreme Court,' you have to really think this one through. Everyone is cognizant of the fact that this is probably the high-water mark for Second Amendment cases."
Fenty and the gun-control community have faced this dilemma since March 9, when a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the D.C. law as unconstitutional. The decades-old law bars all handguns unless they were registered before 1976. The appeals court keyed on a section of the law that bars people from keeping handguns in homes but did not address provisions barring them from carrying guns outside their residences.
In the appeals court's view, the D.C. law is much too sweeping.
At issue is how to interpret the Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
The ruling marked the first time that a federal appeals court had struck down a gun regulation on the grounds that the amendment protects an individual's rights to bear arms. Other courts have found that it specifically protects the ability of states to maintain a militia.
Last week, the full D.C. Circuit refused to reconsider the city's arguments -- leaving the Supreme Court as the only place for the District to appeal.
Legal experts say gun-rights activists have a lot of advantages at this time in history and in this specific suit, Parker v. District of Columbia, filed in 2003 by six D.C. residents who said they wanted the right to own guns.
First, the District law is considered one of the most restrictive in the country, gun law experts say, and one of the more difficult to defend because of some seemingly illogical requirements. For example, one part of the law requires owners of registered guns, including shotguns, to disassemble them or use trigger locks -- basically rendering them useless in an emergency. The appellate panel singled out that provision as flawed.
Next, the belief that the Second Amendment protects individual gun rights has been gaining currency among conservative and liberal legal scholars.
And the Supreme Court has grown more conservative and, it appears, friendlier to the gun lobby's view of constitutional rights with the addition of Justice Samuel A. Alito Jr., who as a member of a lower court declared that the machine gun ban was unconstitutional.
Those factors help explain Fenty's uncharacteristic reluctance to take a firm stand at a news conference last week to discuss what happens next. Reporters wanted to know whether Fenty would petition the Supreme Court, which analysts say most certainly would take the case, or rewrite the regulations to target guns in a less restrictive way.
"It's a little early to say which way we're going to go," Fenty said at the news conference. "We will weigh everything."
Now that the full appeals court has declined to review the case, Fenty has 90 days to decide whether to petition the Supreme Court.
Other cities and states are closely tracking what happens. Leaders of several, including New York Mayor Michael Bloomberg (R) and Massachusetts Gov. Deval L. Patrick (D), declined to publicly comment on what they thought Fenty should do, or talk about their level of anxiety about the fate of their own laws.
Paul Helmke, president of the Brady Center to Prevent Gun Violence, was quite direct: "We're very concerned about this case because if it's allowed to stand, and if it becomes the law of the land, it places in jeopardy just about every other gun law you can think of."
But Helmke also said: "The D.C. law is an easy one to shoot at. Factually, it's a tougher one to get behind and defend. Background checks and assault weapons ban -- you can defend all day long. . . . Why is this the one we're going to be taking up to the Supremes?"
Helmke said he wouldn't advise the mayor to avoid the Supreme Court challenge. He said several gun-control experts worry just as much about the cases the gun lobby might be able to win if the city doesn't keep fighting.
But dire consequences are not expected by some legal experts, including Sanford Levinson, a noted constitutional scholar and liberal-leaning professor at the University of Texas who made news when he wrote that he, too, believed the Second Amendment protected individual rights to bear arms.
Levinson said the D.C. Circuit opinion "went out of its way" to stress that reasonable regulations, such as registration for owners and screening for criminals, were appropriate. He said he doubts the current Supreme Court would go further than that to affirm that demand for reasonable restrictions.
"The court seemed to say, 'Look, you need to come up with a better reason than D.C. did,' " Levinson said.
Robert A. Levy, the lawyer who spearheaded the D.C. residents' challenge in the Parker case, said Fenty has a duty to the people of the city and should not be making tactical decisions to outmaneuver gun-rights groups in the courts. "Their obligation is not to engage in strategic lawyering," Levy said.
Fenty said he will make his decision with the safety of D.C. residents "foremost" in his calculus.
"The residents of the District of Columbia expect us to fight aggressively to make our laws as strong as possible," Fenty said. "We ultimately believe we will prevail."
Staff researchers Meg Smith and Julie Tate contributed to this report.
