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Clearing the Air

July 18th, 2008 by Alan Gura

There’s been some confusion about how the Supreme Court’s decision is to be implemented, and what it means for DC’s registration system, going forward.  We’d like to clear the air. 

The handgun that Mr. Heller tried to register in 2002, the registration of which was ordered by the courts, is a nine-shot revolver.  It is fully registerable under D.C. law as it stands today, and Mr. Heller will have it registered to him.  We are not expecting the city to resist the registration of this firearm.  Once the gun is registered to Mr. Heller, he can use it to defend his home. 

There are significant, practical limits on the number of arguments that can be put together in one lawsuit.  In our case, we chose to focus on the handgun and functional firearms bans – and that was plenty work for the courts to consider.   Litigants do not have unlimited space in the briefing, or unlimited time in argument, and there is a significant strategic advantage – as we have demonstrated – in keeping constitutional litigation focused and narrow. 

That does not mean that the rest of the D.C. Code with respect to firearms is constitutional.  Much of it is not.  But the entire code was not directly at issue in our case.  It is our hope that Mayor Fenty and the City Council, or Congress, if the Mayor and City Council are unwilling to do so, sit down with their code books and the Supreme Court’s opinion, and make a serious effort to conform the former to the latter.   If the political branches do not make the city’s firearm laws constitutional, then as we’ve seen, the courts will do it for them.  

However, the judgment in this case relates only to the provisions that were struck down, and the city appears to be complying with the literal command of the judgment.  Again, we do not believe that everything the city is doing is constitutional.  Some of the city’s registration practices are clearly unconstitutional, as is the semi-auto ban.  But these are not issues that can be resolved in the context of the current case. 

The Supreme Court’s decision is a smashing victory for liberty, and it has made immediate practical impact on the Second Amendment rights of Washington, D.C. residents.   Mr. Heller will have his handgun, lawfully, at home, and he can use it for self-defense should the need arise.  That was the object of the case, and it has succeeded.  We will continue to monitor the city’s behavior for compliance with the decision.  And we are sure that in due time, all of the city’s unconstitutional practices will be altered, one way or another.

Supreme Court: Individual Right to Own Gun!

June 26th, 2008 by admin

Download: Read the Heller Opinion (PDF).  News Roundup: CNNNY TimesWashington Post, plus Scotus Blog has some quotes from the majority

Oral Arguments On C-SPAN

March 18th, 2008 by admin

The Oral Arguments can be heard now on C-SPAN. (12:25 p.m.)

Clark’s Op-ed “The District of Columbia: No guns, still deadly” was published in the Minneapolis Star Tribune on March 16th.

Argument Day!

March 18th, 2008 by Clark Neily

We start today’s posts with this op-ed from Bob Levy in the Boston Globe.  More to come.

Legal Times

March 17th, 2008 by Clark Neily

Alan and Bob have a great piece entitled ”Armed for Liberty” in today’s Legal Times.

Professor Tribe

March 4th, 2008 by Alan Gura

In today’s Wall Street Journal, Prof. Laurence Tribe stated the D.C. Circuit went “overboard,” that our position is “extreme,” that handgun bans are constitutional, and that Congress can essentially ignore the Second Amendment when legislating for Washington, D.C.This is quite a change from Prof. Tribe’s position in May, 2007.  At that time, in correspondence with us, Tribe said he would consider playing a “more central role” in our case, with the aim of helping us appeal to justices he perceived to be centrist and left of center.  It’s difficult to see how his current position would accomplish that goal.

Bob Levy on the Solicitor General’s amicus brief

February 14th, 2008 by Clark Neily

Bob Levy has an op-ed in today’s Washington Times explaining how the Justice Department’s amicus brief represents yet another breach of faith by the Bush administration, which talked a big game about respecting individual rights under the Second Amendment but failed to match those words with action when the time came.  The Justice Department’s amicus is here, and the Goldwater Institute’s devestating critique of that brief is here.

Respondents’ Amici

February 12th, 2008 by Clark Neily

Washington, D.C.—Last night’s deadline saw the filing of 46 amicus briefs—including one with more than half the members of Congress as signatories, and another on behalf of 31 states—in the Supreme Court in support of citizens challenging Washington D.C.’s gun ban.  Oral argument in the case, which will decide for the first time whether the Second Amendment protects an individual right of law-abiding citizens to keep guns in their homes for self-defense, is scheduled for March 18.


The Supreme Court has not taken a Second Amendment case in nearly 70 years, and the meaning of the Amendment, which states that the “right of the people to keep and bear arms shall not be infringed,” remains unsettled. Given the sparse legal precedent and the magnitude of the issue, amicus briefs are likely to play an especially important role in the Court’s deliberations.


“Washington, D.C.’s 30-year-old gun ban has accomplished nothing except to prevent law-abiding citizens from exercising their constitutional right to keep and bear arms,” said Alan Gura, lead attorney for the citizens challenging the gun ban.  “We are gratified by the number and the quality of the amicus briefs supporting the Second Amendment, and we are confident that this case will lead to the demise of the Nation’s most draconian—and counterproductive—gun laws.” 


Amicus briefs supporting the right of law-abiding individuals to keep guns in their home for self-defense include the following:


55 Senators, 250 Representatives, and Dick Cheney as President of the U.S. Senate—A bi-partisan group of legislators, representing more than half of the U.S. Congress, along with Vice President Dick Cheney as President of the U.S. Senate, offered a ringing endorsement of the Second Amendment, explaining that Congress has always understood the Second Amendment right to keep and bear arms to be an individual right belonging to “the people,” and arguing that Congress has always been guided by that understanding when considering firearms regulations.


31 States—Led by Texas Solicitor General Ted Cruz, 31 states filed a brief explaining that “the individual right to keep and bear arms is protected by the United States Constitution and the constitutions of forty-four states.”  The 31 amici states also note that “the District of Columbia’s categorical gun ban is markedly out of step with the judgment of the legislatures of the fifty states, all of which protect the right of private citizens to own handguns.”


Military Officers—Washington, D.C.’s Wiley Rein law firm submitted brief on behalf of high-ranking retired military officers representing the Army, Navy, Air Force, Marine Corps and National Guard filed a brief explaining that the “collectivist view” of the Second Amendment advanced by the District and its amici in this case “would undermine both military preparedness and national defense.” 


Criminologists, Scholars, and Physicians—Several briefs challenge key empirical claims made by D.C. and its amici in support of the gun ban.  For example, despite soaring murder rates and its recurring status as “murder capital” of the country, the city claims its handgun ban has actually reduced the number of homicides that would otherwise have occurred.  But amicus briefs submitted by various criminologists, scholars, and physicians—including Harvard medical school professors and the American Association of Physicians and Surgeons—utterly demolish that claim, showing that the studies upon which it is based are deeply flawed.  Indeed, the National Academy of Sciences concluded that those studies provided “no conclusive evidence with respect to the impact of [handgun] bans on crime and violence” and were “not tenable.” 


Goldwater Institute challenging the Solicitor General’s “remand” argument—The Goldwater Institute filed a brief taking to task the Solicitor General and the Justice Department for suggesting that the Supreme Court should duck the question of whether D.C.’s handgun ban violates the Second Amendment and instead remand the case to the lower courts to reconsider that question based on a different, lower standard of constitutional scrutiny than the one traditionally applied in evaluating government regulations of “fundamental” rights. Contrary to the Solicitor General’s position, a remand in this case would not be consistent with the Court’s customary practice and would not serve any useful purpose.


“Errors” brief correcting common myths and misrepresentations about the Second Amendment—A brief filed by the Citizens Committee for the Right to Keep and Bear Arms and others offers the Justices a “one-stop shopping” guide to the many myths, misrepresentations, and outright falsehoods offered by D.C. and its supporters in seeking to render the Second Amendment a dead letter.  Among the 18 different errors documented by the brief is the District’s claim that it merely bans handguns while permitting home possession of functional firearms for self-defense.  Documenting the District’s own conduct over the years—which includes prosecuting people for engaging in lawful self-defense using forbidden weapons—the brief shows how utterly baseless and disingenuous that claim is.

The States Weigh In

February 8th, 2008 by Alan Gura

The opportunity to collaborate with so many old friends is among the many perks of working this case.  Among our amici briefs coming this Monday, we expect a brief from over thirty states, voicing support for the individual right view and rejecting the Petitioners’ “state militia” theory, authored by Texas SG Ted Cruz.  I’ve known and respected Ted for many years for his legal (and poker) acumen.  Considering the significance of this brief, we’re delighted to consent to Ted’s request for ten minutes of argument time.  [Ted and I had discussed dividing argument time at the D.C. Circuit stage, but we did not have enough time to divide.]

Of course, we would not begrudge the U.S. Solicitor General’s desire for argument time as well.  However, considering his position is adverse to our clients, it would be inappropriate for him to detract from our argument time.  Accordingly, we suggest to the Court that should the U.S. Solicitor General desire argument time, he be granted such time in addition to, and not instead of, the parties’ time.

Our Amici

February 7th, 2008 by Alan Gura

Some of our friends have been filing briefs this week.  Please check out our “Case Filings” page for the latest….

We do try to get these up as soon as we can.  The deadline for friend of the court briefs in support of the Second Amendment is Monday, February 11, and we expect many more briefs to be filed that day.   We’ll be updating the website sometime late Monday to reflect all the briefs that we’ll be receiving.

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