Both Sides Fear Firing Blanks if D.C. Gun Case Reaches High Court

Tony Mauro
Legal Times
July 30, 2007

The case of District of Columbia v. Heller is barely at the Supreme Court's starting gate, yet nearly everyone involved has a growing sense that this will be the Big One.

It is shaping up as the case that finally forces the Court to decide one of the most keenly debated issues in constitutional law: the full meaning of the right to keep and bear arms declared by the Second Amendment.

Washington, D.C., Mayor Adrian Fenty is appealing a March 9 ruling by the U.S. Court of Appeals for the D.C. Circuit that struck down the city's handgun ban on Second Amendment grounds. The Court has given the city until Sept. 5 to file, and the other side -- residents who want the ban overturned -- say they too want high court review. If the Court accepts, the case could be argued early next year.

But even as the case heats up, factions on both sides seem to be getting cold feet. The concern is that even after nearly 70 years of high court silence, the time might not be right for it to speak to the Second Amendment question.

On the pro-gun-rights side those worries, along with long-simmering rivalries, have relegated the National Rifle Association to the sidelines in a case that could fulfill its most fervent dream: a declaration by the Court that the convoluted wording of the Second Amendment ensures an individual's right to bear arms, rather than a collective right of state militias. If the right-leaning Roberts Court embraces that view, regulating firearm possession and use would become harder, though not impossible.

Alan Gura, the Alexandria, Va., lawyer who masterminded the challenge to the D.C. handgun ban, says the NRA has joined him "ever so grudgingly" only in recent weeks, after years of trying to wreck the litigation and avoid a Second Amendment showdown. At earlier stages, the NRA sought to consolidate its own case, which challenged the D.C. law on a "kitchen sink" array of rationales, with Gura's. In a 2003 filing, Gura called the NRA case "sham litigation" aimed at muddying his Second Amendment claim.

Even after the D.C. Circuit ruled in March, says Gura, the NRA lobbied for legislation to repeal the D.C. handgun ban as a way to keep the case out of the Supreme Court. "The NRA was adamant about not wanting the Supreme Court to hear the case, but we went ahead anyway," says Gura, a name partner in the firm of Gura & Possessky. "It's not their case, and they are somewhat territorial."

FRIENDLY FIRE

Gura insists that if the high court grants review, he will argue the case himself and won't defer to NRA lawyers, such as Stephen Halbrook, who have Supreme Court experience. "My decisions in the case have been the correct decisions. That's why I am arguing and he's not."

NRA spokesman Andrew Arulanandam denies his group sought to sabotage Gura's case: "Our intent to file an amicus brief if the case progresses speaks for itself." He also noted that the NRA filed a brief supporting Gura with the circuit court.

Yet Charles Cooper of D.C.'s Cooper & Kirk acknowledges that when he reviewed the Heller case at an earlier stage for the NRA, "my concern was then, as it is now, whether our [individual rights] theory of the Second Amendment would command a majority of the Supreme Court." Even with recent changes in the composition of the Court, says Cooper, "that is still not as clear as I would like it to be, though I am much more calm." Nonetheless, Cooper says, if the high court declines to take up the D.C. case and lets the D.C. Circuit ruling stand, "that's not going to disappoint me."

Cooper's reluctance is based on legal strategy, but others say the NRA has less lofty reasons for not wanting the Supreme Court to decide what the Second Amendment really means. "The NRA would lose its loudest fund-raising drum if this question is answered," says Carl Bogus, a leading scholar who favors the militia rights view of the amendment.

The pro-gun-control side has also had misgivings about appealing to the Supreme Court. Other cities and states worry that if the Supreme Court upholds the circuit decision, their own efforts to regulate firearms will be in jeopardy. By not appealing, D.C. could have limited the damage to only its law.

"Obviously a lot of factors went into Mayor Fenty's decision to appeal. He wanted to do what he could to protect the city's laws," says Dennis Henigan of the Brady Center to Prevent Gun Violence, a leading gun control strategist. "On the other hand, there have been some changes on the Supreme Court that could affect the outcome."

Addressing concerns about the nationwide impact of an adverse ruling, Washington, D.C. Attorney General Linda Singer says, "Our obligation is to the residents of the District of Columbia." She also says, "We have a substantial chance of success on the merits" at the Supreme Court.

Singer indicated the case would not be argued by an outside Supreme Court advocate, but rather a lawyer on her staff, though she did not say which one.

A natural candidate, says Henigan, would be Alan Morrison, the former head of the Public Citizen Litigation Group, who is leaving a Stanford Law School teaching position to join Singer's staff as a special counsel beginning Sept. 4. "He's a huge talent," says Henigan, who also says the city's solicitor general, Todd Kim, is "a terrific lawyer."

Morrison, who has argued 16 cases before the Supreme Court, confirms he has been working unofficially on several projects including the gun case recently.

DODGING THE BULLET

With the Roberts Court's increasingly sharp right turn last term, it might seem that the outcome of the case is predictable: a victory for the pro-gun forces and the individual rights view.

But things aren't that clear-cut, says Bogus, the Second Amendment scholar and a professor at Roger Williams University's law school. "It does not fall out clearly on the liberal-conservative divide," he says, noting that some conservative legal scholars such as Robert Bork oppose the individual rights view, while some liberals like Laurence Tribe back it.

The justices themselves have said remarkably little about the Second Amendment through the years, though at least two of them -- Antonin Scalia and Clarence Thomas -- have said enough to convince most analysts that they would support the pro-gun, individual rights view.

In a 1997 decision, Printz v. United States, Thomas said, almost wistfully, "Perhaps, at some future date, this Court will have the opportunity to determine whether Justice [Joseph] Story was correct when he wrote that the right to bear arms 'has justly been considered, as the palladium of the liberties of a republic.'"

For his part, Scalia, in a book 10 years ago, described "my interpretation of the Second Amendment as a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense."

During their confirmation hearings, new Justices Samuel Alito Jr. and John Roberts Jr. were asked about their Second Amendment views.

Senators grilled Alito about his 1996 dissent in United States v. Rybar, during his tenure as a judge on the 3rd U.S. Circuit Court of Appeals. In that decision, Alito said Congress had overstepped its powers under the commerce clause when it passed a ban on machine gun ownership.

But Alito said during his 2006 hearing that his was a "very modest position," adding that Congress could cure the problem by including in the law some statement or finding that asserted a connection between the ban and interstate commerce.

Roberts, when asked directly about his view of the Second Amendment, demurred on the grounds that the issue could come before him. But he did say in his September 2005 hearing that 1939's United States v. Miller had "side-stepped the issue" and left the meaning of the Second Amendment "a very open issue."

Miller marked the last time the Court dealt directly with the meaning of the Second Amendment. It upheld a restriction on sawed-off shotguns, asserting that the laws appeared to have little to do with "a well-regulated militia."

To Henigan of the Brady Center, Roberts' stated view of Miller was telling. "When he said that, it was a signal, to my ears" that Roberts would take the individual rights view. Most gun rights advocates also say Miller sidestepped the Second Amendment question, says Henigan, while "nine circuit courts have found that Miller did in fact decide the meaning of the Second Amendment" as a militia right.

Little is known about the other justices' Second Amendment views. As is often the case, Justice Anthony Kennedy might cast the deciding vote.

No matter what the outcome of the case, even the pro-gun-rights Gura believes it will be far from the last word the Supreme Court has on the subject of the Second Amendment.

"There's this incredible temptation, which I don't understand, to think that one Second Amendment case will resolve everything," says Gura. "It doesn't work that way." Even if the Court declares it protects an individual right, the scope of the right will have to be fleshed out, he says. "It will take an eternity to resolve."