Wednesday, September 12, 2007
D.C. resident seeks right to have working rifles, shotguns
05:18 PM | Lyle Denniston | Comments (0)
A D.C. resident who successfully challenged the city of Washington's strict gun control law asked the D.C. Circuit Court on Wednesday to allow him and other residents to have immediate access to rifles and shotguns -- in functioning condition -- for self-defense. His lawyers argued that the D.C. government, in an appeal to the Supreme Court, had conceded that the ban on such working firearms was unconstitutional, so the lawyers argued it should be blocked by court order.
Technicallly, the individual, Dick Anthony Heller, filed a motion to lift the stay of the mandate on the Circuit Court's ruling that key provisions of the city's gun control law were unconstitutional under the Second Amendment. The Circuit Court put its ruling on hold so that the city could appeal to the Supreme Court, and it remains on hold. (The city did file an eppeal, in District of Columbia v. Heller, docket 07-290; five other residents who want to be a part of that case have filed a cross-petition, Parker v. District of Columbia, now docketed as 06-335). The new Heller motion in the Circuit Court can be found at this site. The city has until Sept. 24 to respond.
The Circuit Court ruling struck down not only a provision that bans anyone from having a handgun for personal or private use, but also a separate clause that says that any firearm that is legal for individual possession in the city -- rifles and shotguns, that is -- must be unloaded and disassembled or have a trigger lock in place if it is kept in a home. The Court found that the second provision would deny anyone the use of a "functional firearm," even for self-defense, and nullified it, too.
In the city's appeal to the Supreme Court, it asked the Justices to uphold only the part of the local law that applies to private possession and use of handguns. In a footnote, the city's petition said that it did not interpet that clause "to prevent the use of a lawful firearm in self-defense" -- in other words, a rifle or shotgun, since those are the type of weapons that remain legal under the local law.
Relying upon that footnote, and other aspects of the city's arguments to the Supreme Court, Heller's lawyers said that "it appears the city has conceded the unconstitutionality of the functional firearms ban. If so, there is no reason for the stay of the mandate to remain in effect with respect to that provision," and that part of the mandate should be issued "forthwith." The city is "not entitled to stay of the mandate as of right simply because they petitioner the Supreme Court for certiorari," the motion said.
"The petition contains no argument or other basis for staying injunction of the functional firearms ban....The city has represented to the Supreme Court that a legal environment exists in the District of Columbia in which rifles and shotguns are 'allowed' -- an environment in which the funcitonal firearms ban no longer exists"" So long as that separate provision of the city law remains in effect, it added, "the city is not allowing its citizens to have any type of firearm."
From: http://www.scotusblog.com/movabletype/
