Supreme Court Punts on D.C. Gun Ban

Supreme Court Punts on D.C. Gun Ban 2nd Amendment Graphic The U.S. Supreme Court this morning declined to take action on D.C.’s appeal of an appellate court decision last March striking down its ban on handguns.

Linda Greenhouse provides background:

Both sides in a closely watched legal battle over the District of Columbia’s strict gun-control law are urging the Supreme Court to hear the case. If the justices agree — a step they may announce as early as Tuesday — the Roberts court is likely to find itself back on the front lines of the culture wars with an intensity unmatched even by the cases on abortion and race that defined the court’s last term.

The question is whether the Second Amendment to the Constitution protects an individual right to “keep and bear arms.” If the answer is yes, as the federal appeals court held in March, the justices must then decide what such an interpretation means for a statute that bars all possession of handguns and that requires any other guns in the home to be disassembled or secured by trigger locks.

The Supreme Court has never answered the Second Amendment question directly, and it has been nearly 70 years since the court even approached it obliquely. A decision in 1939, United States v. Miller, held that a sawed-off shotgun was not one of the “arms” to which the Second Amendment referred in its single, densely written, and oddly punctuated sentence: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Lyle Denniston reports on the Court’s action this morning:

The Supreme Court on Tuesday announced no action on a new case testing the meaning of the Second Amendment — an issue the Court has not considered in 68 years. The Orders List contained no mention of either the District of Columbia’s appeal (07-290) or a cross-petition by challengers to the city’s flat ban on private possession of handguns (07-335). The next date for possible action on these cases is likely to be Nov. 26, following a pre-Thanksgiving Conference of the Justices set for Tuesday, Nov. 20.

The Court, of course, does not explain inaction. But among the possible reasons for delaying the case are these: one or more Justices simply asked for more time to consider the two cases; the Court may be rewriting the question or questions it will be willing to review — especially in view of the disagreement between the two sides on what should be at issue; the Court may have voted initially to deny review of one or both cases and one or more Justices are writing a dissent from the denial. The appeal in 07-290 (District of Columbia v. Heller) raises the key issue about the Second Amendment’s meaning — that is, whether it guarantees an individual right to have a gun for private use, at least in one’s home — and the appeal in 07-335 (Parker v. District of Columbia) poses a question about who may bring lawsuits to challenge laws before they are actively enforced. Together, the cases thus present a somewhat complex mix for the Court, and it perhaps was not much of a surprise that no order issued on Tuesday. At no point is there likely to be an answer to what happened to bring about the delay. Both cases are expected to be re-listed for the Nov. 20 Conference.

It’s conceivable, then, that the Court will still decide to take action on the case this term. Practically speaking, though, doing nothing is a victory for friends of the 2nd Amendment, since it lets stand the appellate decision. If the Court were to take the case and uphold the ruling and its broad reasoning, however, it would be have nation-wide effect whereas the current ruling applies only to the District.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. McGehee says:

    I’m not surprised. Conflict among circuits has generally been an impetus for the Supreme Court to take action, but the Second Amendment has been one conspicuous exception.

    I was predicting they’d punt long before people started rationalizing that a punt would be a good thing for gun rights. And I think the rationalization is pathetic.

  2. Tano says:

    “doing nothing is a victory for friends of the 2nd Amendment”

    We are all friends of the 2nd Amendment, especially those who take seriously all of its words, instead of just some.

  3. Paul says:

    The Court hasn’t “declined” to do anything. It simply hasn’t announced yet whether it will take the case. Nor will the Court do “nothing.” The Court will grant certiorari or it will deny certiorari. But in either event, the Court will inform us of its decision.

    Hold your horses.

  4. Dodd says:

    The SupCt passed on Emerson, which represented the first clearcut victory for the individual rights view in a long, long time. Parker is really just the second such victory. When a shift like this begins in the Circuits, the Court often leaves things lie for a time to see if/how other Circuits respond. I wouldn’t be surprised if they leave this one be, as well, and wait for another – possibly even one that goes the other way, thereby establishing the the Circuit split isn’t going to correct itself – before stepping in.

    We need to get a case like this one up to the Ninth.