Consider What’s Next for the Second Amendment

May 16, 2007 • Commentary
This article appeared in The Hill on May 16, 2007.

Washington, D.C., Mayor Adrian M. Fenty (D) has the Second Amendment in his crosshairs. He faces a crucial choice over the next 90 days with major implications for residents in D.C. and across the country: Should the city ask the Supreme Court to review Parker v. District of Columbia, a March 9 decision by the U.S. Court of Appeals that said D.C.‘s handgun ban is unconstitutional? On May 8, the city lost round two when the appellate court declined to re‐​hear the case. That leaves the Supremes as the court of last resort.

Sounds like a no‐​brainer. After all, the city has nothing to lose. If the Supreme Court overrules the appellate court, the mayor will be off the hook. He can continue peddling his fantasy world in which the city’s handgun ban protects Washingtonians from gun violence. On the other hand, if the Supreme Court affirms the lower court decision, D.C. will be no worse off than it would have been if it hadn’t asked for review. The handgun ban, as it now stands, will be history.

Why, then, is there any question about seeking review? Well, because politics and legal stratagems often play a role. On the political front, the argument will go like this: The last thing the mayor’s Democratic friends want is a gun control case percolating at the Supreme Court, with a decision likely in the heat of the ’08 campaign. Gun control is a losing issue for Democrats and red meat for Republicans. Accordingly, the mayor will be advised, take your medicine, change D.C.‘s gun laws and keep Parker out of the Supreme Court. One would hope — if one were a D.C. resident who supported the handgun ban — that such blandishments would fall on deaf ears. The mayor is supposed to represent the city, not the pols running the ’08 campaign. We’ll soon see.

Then there’s the legal strategy argument: No doubt some anti‐​gun groups will urge the mayor not to seek Supreme Court review because D.C. might lose. And if D.C. lost, the repercussions for gun control regulations nationwide could be historic. Because of the tightly balanced cast of justices, and their unknown views on the Second Amendment, there’s a real risk for both sides. Still, the obligation of D.C.‘s mayor is to defend the constitutionality of the District’s laws, not to engage in strategic lawyering because of concerns outside of Washington. What would the mayor’s constituents — we are told by D.C. officials that a large majority favor the current ban — say if Mayor Fenty opted to rein in the District’s gun laws without a Supreme Court fight because interests in New York, California, Illinois and Massachusetts were at stake?

Indeed, if the mayor wants to consider what he perceives as the national interest, then he should consider this: No matter what D.C. does legislatively about its gun ban, unless the Supreme Court overturns Parker, the District will be the best venue to challenge federal gun laws, regardless where they are applied. The federal government lives in D.C., and that’s where citizens will seek redress — taking advantage of the holding in Parker — whenever federal laws trample on gun owners’ rights in any of the states.

Understandably, because I’m co‐​counsel to the plaintiffs in Parker, the mayor might be reluctant to accept my advice on this matter. But here’s the interesting sidebar: The question whether to seek Supreme Court review is one subject where the city’s interests and the Parker plaintiffs’ interests converge. For the mayor, it’s a no‐​lose proposition. Either he wins at the Supreme Court or he faces the same music that he’d face without court review. For the plaintiffs, it’s always been their ultimate goal to have the high court weigh in, for the first time since 1939, on this threshold Second Amendment dispute: Does the right to keep and bear arms belong to us as individuals, or does the Constitution merely recognize the collective right of states to arm the members of their militias?

So, Mr. Mayor, it’s time to do the right thing. The citizens of D.C. — indeed, all Americans — deserve a foursquare pronouncement from the nation’s highest court on the real meaning of the Second Amendment. The U.S. Supreme Court is, and rightly should be, the final word on that question. Let’s give the court an opportunity to rule, and give the rest of us the benefit of the court’s collective judgment on a debate that concerns millions of Americans.

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