Overview: Parker v. District of Columbia, et al.
Background
Drug dealers have repeatedly threatened Shelly Parker in retaliation for her attempts to rid her neighborhood of crime. Ms. Parker has also repeatedly suffered vandalism and attempts to break into her home. The police and criminal justice system have proven they cannot guarantee her safety. Dick Heller is a Special Police Officer of the District of Columbia, authorized to carry a gun as he provides security for federal judges at the Thurgood Marshall Federal Judicial Center on Capitol Hill. However, Mr. Heller is not permitted any sort of functional firearm to defend himself at his home in a crime-ridden section of south east Washington, D.C.. Tom G. Palmer once successfully used a handgun to avoid becoming a gay-bashing statistic. But that was before he moved to Washington. Gillian St. Lawrence owns a lawfully registered long gun, but it serves little useful purpose in her home, where the law requires that it be kept in a non-operative condition. Tracey Ambeau and George Lyon are also law-abiding Washington, D.C. residents who would like to exercise the same right available throughout the fifty states – the right to keep a working firearm in their homes.
The District of Columbia requires that all firearms be registered, but the registration of handguns has been forbidden since 1978. Effectively, there is a complete ban on the possession of handguns. While long arms may be possessed, they must be kept disassembled or bound by a trigger lock at all times, without exception, when kept in one’s home. A gun can only be rendered functional in one’s place of business or while engaged in recreational shooting. Moreover, the law provides that moving a gun inside one’s own home, or on one’s possessed land, is illegal without a special permit that is generally unavailable. Violation of this provision is a misdemeanor, separate and apart from the felony prohibition of carrying a pistol in public.
All of these provisions are aggressively enforced against otherwise law abiding citizens. Enforcement even extends to people who defend themselves against home intruders, including in cases where the government approves of the actual shooting as having been committed in self-defense.
The Second Amendment to the United States Constitution provides that “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 phrase “right of the people” also appears in the First and Fourth Amendments, while the Ninth Amendment speaks of rights “retained by the people.” The word “people” has always referred to individual human beings. Where the Framers spoke of the states, they used the word, “states.” In the Tenth Amendment, “people” and “states” are each used to refer to different concepts. The word “militia” has always referred to the able-bodied citizenry that is capable of defending public order in times of crisis, not some specific paramilitary organization.
In the mid-20th century, gun prohibitionists conjured an elaborate theory that “the people” actually means “states,” such that the Second Amendment only guarantees a “collective right” of the states to arm troops and does not secure any individual rights. This theory contradicts the substantial history of the Second Amendment, the plain meaning of the words, and long accepted rules of English grammar. It also conflicts with the Constitution’s prohibition on the states maintaining armed troops without permission of the federal government. We note American history does not record any problems with troops being denied the use of arms in combat, such that troops require a constitutional right to be armed.
The federal courts are currently split on the question of whether the Second Amendment secures an individual or “collective” right. This question has never been specifically considered by the Supreme Court. Indeed, the Supreme Court has decided only one case concerning the Second Amendment, holding nearly seventy years ago that a sawed-off shotgun may not be the sort of weapon protected by the Constitution.
Whatever one’s views may be on the question of gun control, we hope that all people can appreciate that our civil rights are endangered when the government creates strained reasons to ignore entire provisions of the Bill of Rights. At Gura & Possessky, PLLC, we respect the fact that people have different policy preferences when it comes to gun issues, and encourage all Americans to work within our constitutional framework in pursuing their various policy goals.
Case History
In February, 2003, we filed our complaint against the District of Columbia and then-Mayor Anthony Williams in the United States District Court for the District of Columbia. The complaint challenges the constitutionality, under the Second Amendment, of the District’s prohibition on the home possession of functional firearms and handguns, and the requirement of an unavailable license to move firearms within a house.
Two days later, the Mayor’s spokesperson, and the Deputy Mayor for Justice and Public Safety, gave a front-page newspaper interview proclaiming the city’s zealous opposition to our lawsuit, and vowed that the laws would be enforced to the hilt against our clients. The defendants filed a motion to dismiss our case, claiming the Second Amendment secures only a “collective right.” We followed shortly with a motion for summary judgment.
Despite the various proclamations by city officials, the city abandoned its defense against our lawsuit, claiming that the case somehow “slipped through the cracks.” The defendants failed to oppose our motion for summary judgment, and failed to reply to our opposition to their motion to dismiss. Our case stood ready for resolution by the court within two months of its filing.
Before the court could rule in our case, the National Rifle Association sponsored a copycat lawsuit, entitled Seegars v. Ashcroft (subsequently Gonzales), and immediately sought to have their lawsuit joined with ours. The NRA had tried to dissuade the filing of Parker. Having failed in that effort, they lobbied unsuccessfully to alter our litigation strategy. Seegars was designed to raise issues we had rejected in our case, in an attempt to have the courts avoid interpretation of the Second Amendment. Seegars counsel was an attorney who had been involved in the early stages of our case, but who was not retained to proceed with us further.
It was not a coincidence that the NRA had failed to defend the Second Amendment rights of Washington, D.C. residents in court for over twenty-five years, but suddenly sponsored a copycat action immediately upon our having filed suit. We successfully defeated the NRA’s attempt to use Seegars as a vehicle to muscle in on our litigation. The District Court agreed with us that the behavior of Seegars' counsel raised substantial ethical and attorney-client issues that would delay and complicate the litigation. Each case proceeded independently, on separate tracks before separate judges.
The NRA’s tactics in Seegars triggered the defendants in that case to raise substantial standing issues which were not raised by the defendants in our case, or their amici. Consequently, at oral argument in Parker, in October, 2003, the court asked the parties to submit additional briefing on the question of standing. However, during the course of the argument, the defendants’ attorney vowed that our clients would be prosecuted if they were to break the law.
In January, 2004, the District Court ruled that all but one of the Seegars plaintiffs lacked standing to bring their action. With regard to the one plaintiff that had standing, the court proceeded to adopt the so-called “collective rights” theory of the Second Amendment.
Two months later, the District Court in Parker rejected without comment all claims that our clients lacked standing to bring their action. The District Court further commended us for “extol[ing] many thought-provoking and historically interesting arguments,” but adopted the so-called “collective rights” theory and ruled against our clients.
Both cases were appealed to the United States Court of Appeals for the District of Columbia Circuit.
Because the Seegars case was decided earlier, the D.C. Court of Appeals held the Parker appeal in abeyance pending its resolution of Seegars. In February 2005, the appellate court held that all Seegars plaintiffs lacked standing because they could not demonstrate any specific likelihood that they would be prosecuted for violating the gun laws. The District Court’s substantive holding in Seegars, adopting the “collective right” theory of the Second Amendment, was vacated.
Given the lengthy record of specific threats against our clients, we filed a motion to have the appellate court hear our case notwithstanding the outcome in Seegars. The city and its mayor requested summary affirmance. Both motions were held in abeyance, as the appellate court considered whether to re-hear Seegars.
In June 2005, the appellate court declined to re-hear the Seegars matter and ordered the parties in Parker to again brief the question of how the case should proceed.
In November 2005, the appellate court denied the defendants' motions to dismiss our appeal or summarily affirm the judgment, and granted our motions to set the case for argument on the merits. Following extensive briefing, the D.C. Circuit heard oral argument on December 7, 2006.
On March 9, 2007, the appellate court reversed the lower court's opinion, and struck down all three laws challenged by the plaintiffs as violations of the Second Amendment right to keep and bear arms. The city and its new Mayor, Adrian Fenty, have asked the Supreme Court to hear the case. We look forward to vindicating the Second Amendment rights of all Americans before the Supreme Court should it decide to hear the case.