What Happened in Heller, Chapter I: The Certiorari Briefing

Pauca sed matura; yeah, that's the ticket.  Hello, all.  Despite an awesomely delayed start to my stint here at Prawfs, let’s see if I can put a couple of ripe thoughts across in the final quarter.

I've opined before that if the U.S. Supreme Court grants certiorari in District of Columbia v. Heller, the so far successful Second Amendment challenge to the District of Columbia's ban on handguns and functional long guns, then Heller will be the biggest case of the Term.  Bigger than Guantanamo, bigger than lethal injection protocols, even bigger than Medellin. The scope of the constitutional issues raised -- what is the basic meaning of a whole provision of the Bill of Rights? -- and the sheer intensity of popular concern with gun rights and gun control will propel Heller to the center of this Term, and indeed of the early legacy of the Roberts Court.

Briefing on certiorari is now complete. The District and the respondent have filed their principal cert briefs, and the District has filed a reply in support of the petition.  Unusually, both the District as petitioner and the D.C. resident who prevailed below (Mr. Heller) have urged the Supreme Court to take up the case.  The Court will likely decide whether to grant certiorari in November.  [UPDATE: SCOTUSBlog reports that the Court will consider the Heller petition on Nov. 9, and could rule on the petition by Tuesday, Nov. 13th.]

There are also several amicus curiae briefs, all in support of certiorari.    

Finally, some of the D.C. residents who were plaintiffs below have filed a cross-petition for certiorari asking the Supreme Court to reverse the D.C. Circuit's holding that they, unlike Heller, lacked standing to raise Second Amendment claims.

Thoughts on the cert briefing and the case to date:

1. Audience.  Attorneys briefing cases that are of interest only to judges and legal specialists write differently than attorneys who know they are writing for the eyes of a broader public.  The audience for this case is vast.  You could already begin to see the influence of that audience when the case (then captioned Parker v. D.C.) was before the circuit court.  It is very noticeable in the cert petition briefing, and will take on even greater prominence in the merits briefing if the Supreme Court grants certiorari.  Thus, the District's petition ended with a condemnation of the D.C. Circuit's decision as "particularly cold-hearted" because it refused to permit a complete ban on handguns, which the District argues cause "devastation" and are "the weapon overwhelmingly used" to commit violent crimes.  The District closed on a dramatic note, urging: "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."

This led to some fireworks, as Heller rejoined, in a section of his response brief tartly titled "Citizens Under Criminal Attack Are Not Required to Stand By and Die Awaiting Police Protection," that the District has no legal obligation to ensure the safety of its citizens, and has vigorously litigated its own lack of liability in suits involving urban riots, failure to prevent crime, failure to protect witnesses, and police misconduct. "In the meantime," Heller concluded,

people need not stand by and die waiting for Petitioners to provide a safe city in which to live.  The Second Amendment guarantees to citizens something that Petitioners have expressly and consistently disclaimed any legal obligation to provide: an effective means of preserving their lives.

I can only report my own reactions, admittedly those of a gun rights supporter, to such preliminary skirmishing.  This struck me as a very effective response to the District's rhetoric -- enough so that I wonder whether there was some post hoc regret by petitioners' counsel about the choice of language in the petition. 

2. The Question Presented.  There is a big threshold dispute about how whether the Court should accept the District's formulation of the question presented.  The District is trying to frame Heller as a case about whether handguns may constitutionally be banned when a citizen "may lawfully possess a rifle or shotgun to protect himself." Pet. at 28.  But one of the challenged provisions of D.C. law requires all lawfully registered firearms in the home to be kept "unloaded and disassembled or  bound by a trigger lock or similar device," D.C. Code 7-2507.02, which renders them useless for self-protection.  The D.C. Circuit invalidated this provision as well, on the theory that even if Mr. Heller were permitted to possess a handgun, the provision would prohibit him from having his pistol available in a usable condition. 

Yet the District's petition asserts in a footnote that it "does not ... construe [7-2507.02] to prevent the use of a lawful firearm in self-defense." Pet. at 7 n.2.    The District's reply brief (Repl. at 5-6) makes its position clearer: all firearms must be kept both unloaded and disabled (locked or disassembled).  But if an "emergency" arises -- presumably, though the District is opaque here, a threat of "imminent bodily harm" of the sort that would provide the basis for an affirmative defense of self-defense under general D.C. criminal law -- then, although the D.C. Code does not say this, courts would, or should, imply an affirmative defense to liability for possessing an unlawfully loaded and functional firearm under the D.C. Code.  In theory, this could permit an otherwise lawful firearm to be used for self-defense against that threat, including by firing it against the threat. 

The reason the District's position has engendered confusion is that the concession is close to meaningless as a practical matter.  Such a firearm will still be useless in most defensive scenarios.  The point is intuitive.  The District requires that the gun be kept both unloaded and disabled until an "emergency" arises.  When someone kicks in your door at 3 a.m., however, there will simply be no time to (1) retrieve your shotgun, then (2) unlock it (which key was it?) and (3) load it (one shell at a time) in time for you to be able to use it as intended -- i.e., as a firearm.  (And by the way, that's assuming you didn't "disassemble" it, cf. D.C. Code 7-2507.02.)  This is consistent with the interpretation of 7-2507.02 that the D.C. Circuit adopted in its opinion invalidating that provision, and in its order denying plaintiffs' motion to issue the mandate in part. 

Some of the Justices may know enough about firearms to appreciate these practicalities at a glance.  Justice Scalia was on the rifle team as a teenager and Justice Thomas grew up in rural Georgia.  No doubt the respondent and/or amici will take steps to educate the other Justices about the facts if certiorari is granted.

3.  The Specter of Incorporation.  The issue of Fourteenth Amendment incorporation is lurking in the background in Heller.  No issue of incorporation is directly presented by the case.  The Bill of Rights is generally understood to apply directly to D.C., as it does to the federal government (which exercises direct supervision over D.C.), without need of the intermediation of the 14th Amendment. Indeed, the Supreme Court held in the 19th century that the Second Amendment is not incorporated against the states.  Thus Heller does not squarely raise the question of whether, say, the City of Chicago may continue to ban handguns without violating the Constitution.  It does , however, squarely raise the question of whether a Congressional handgun ban would violate the Constitution, and that is certainly importance enough.

Heller's cert respsonse brief is fairly low-key on incorporation, focusing its historical analysis on antebellum sources of constitutional meaning. Its one explicit nod to the issue is a remark that "while federal courts have not subjected state laws to Second Amendment review for lack of incorporation ... that anomaly will presumably be addressed in a future case." Resp. at 17 (emphasis added) (citing a 9th Circuit opinion asserting that older Supreme Court cases refusing to incorporate the 2d Amendment rest on a "thoroughly discredited" approach). 

Still, state and local governments are paying attention.  If the Supreme Court takes Heller and affirms, incorporation will be one of the next battlegrounds.  The amicus briefing in the D.C. Circuit brought out a fascinating regional split between the 13 midwestern, mountain, and southern states, led by Texas, who urged the court to adopt a strong individual-rights conception of the Second Amendment; and the smaller group of mostly coastal states and cities (plus Chicago; Idaho was mistakenly listed on this brief but did not join it) who urged that the DC gun ban be upheld.

I have long had some sympathy with the idea of a robust Second Amendment individual right that is nevertheless not incorporated against the States: in essence, treating the Second as a "strong federalism" provision , an individually justiciable restraint on Congress and the federal administrative state analogous to the Commerce Clause limitations recognized in United States v. Lopez. So I watch this issue with particular interest. If the Court grants certiorari, we can expect another  "roll call" of states submitting amicus briefs on the merits. Indeed, the State of New York (again on behalf of a coalition of "blue" states including Illinois, Maryland and Hawaii) has already weighed in with an amicus brief in support of certiorari.  I have only had time to read New York's brief once, but it struck me as focused and effectively written, probably the best pro-control brief to be filed before the Supreme Court in the case so far.

4. A Personal Note. I confess an atypical personal interest with respect to the certiorari petition in Heller: I will have the privilege of teaching a seminar course on Firearms Law & Policy at OCU Law in the spring of 2008.  This was scheduled well before the D.C. Circuit's decision in Parker jolted the issue of constitutional arms rights to the front of the headlines.  So although a law school seminar is obviously of miniscule importance compared to the massive constitutional, political, individual, and institutional stakes in Heller ... nevertheless, as a teacher, I admit that the prospect of this landmark Supreme Court case being argued while I am teaching a seminar directly on topic leaves me almost giddy at the thought of such academic serendipity.  Like teaching a course on the right to counsel during the pendency of -- no, not Gideon -- but Johnson v. Zerbst.