Probably of little surprise to court watchers everywhere, the United States Supreme Court recently announced it would hear arguments on the always-heated issue of the Second Amendment, its meaning, and its application. The Supreme Court has granted a Writ of Certiorari to hear the District of Columbia’s request to uphold its power to regulate guns within the district.
The Second Amendment is part of the Bill of Rights passed by the first Congress in 1789 and ratified as a unit by 1791. The Bill of Rights, however, only applied against the new federal government and was not meant to affect the existing states’ powers vis-a-vis their own citizens.
Over the following years, and in particular after passage of the 14th Amendment, the Supreme Court slowly found that many of the clauses of the various amendments should apply to the states as well. The doctrine the Supreme Court used was known as “selective incorporation.”
But the Second Amendment has never been held to apply against the states, thus states and their derivatives, such as municipalities and cities, have been free to regulate the possession of guns. That application may very well change next year when the Supreme Court takes up the case of Parker v. District of Columbia, 375 U.S. App. D.C. 140 (2007). Only one individual, Richard Heller, was found to have standing in the case, thus the writ of certiorari to the Supreme Court will only address certain issues raised by the decision as to that one individual.
The Supreme Court has limited arguments to the following three statutory provisions:
D.C. Code 7-2502.02(a)(4):
7-2502.02. Registration of certain firearms prohibited [Formerly 6-2312]
(a) A registration certificate shall not be issued for a:
(1) Sawed-off shotgun;
(2) Machine gun;
(3) Short-barreled rifle; or
(4) Pistol not validly registered to the current registrant in the District prior to September 24, 1976, except that the provisions of this section shall not apply to any organization that employs at least 1 commissioned special police officer or other employee licensed to carry a firearm and that arms the employee with a firearm during the employee’s duty hours or to a police officer who has retired from the Metropolitan Police Department.
(b) Nothing in this section shall prevent a police officer who has retired from the Metropolitan Police Department from registering a pistol.
D.C. Code 7-2507.02
7-2507.02 Firearms required to be unloaded and disassembled or locked [Formerly 6-2372]
Except for law enforcement personnel described in 7-2502.01(b)(1), each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.
D.C. Code 22-4504. Carrying concealed weapons; possession of weapons during commission of crime of violence; penalty [Formerly 22-3204]
(a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in , except that:
(1) A person who violates this section by carrying a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon, in a place other than the person’s dwelling place, place of business, or on other land possessed by the person, shall be fined not more than $ 5,000 or imprisoned for not more than 5 years, or both; or
(2) If the violation of this section occurs after a person has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or another jurisdiction, the person shall be fined not more than $ 10,000 or imprisoned for not more than 10 years, or both.
The petition for a writ of certiorari was granted limited to the issue of whether the above provisions violate the 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.
An issue that complicates the factual basis is that Washington, D.C. is a unique creation and is a city with boundaries coterminous with the federal district. The District of Columbia and the city of Washington are governed by a single municipal government and for most practical purposes, are considered to be the same entity.
Before the Court can undertake analysis of the statutory sections, I believe it will have to determine the status of the District of Columbia. Since it is a city within a district and not witin a state, the 14th amendment probably cannot be used to analyze the application in terms of forbidding states to infringe citizens’ rights. But since it is a federal entity, then the Second Amendment would apply since the Bill of Rights applies against the federal government. If that is the path that the Court takes, then the ruling will be limited only to Washington, D.C. and will still leave the states free to impose restrictions on guns.
If the Court simply wanted to let the appellate ruling stand, it could have denied cert, thereby leaving the lower court’s decision of the unconstitutionality of the statutes intact. Conventional thought is that the Court does not take cases just to reaffirm a lower court’s decision. I may be incorrect, but I believe the case, while touted as the case to again raise the issues of individual gun rights vs. collective rights through militia participation will not resolve the debate. The Court will limit its decision to those citizens of Washington, D.C. as a federal entity.