The Landmark Decision That Nearly Evaporated
In a ruling I discussed early on Friday, a federal appeals court in Washington, D.C. struck down Washington, D.C.’s gun ban. But the challenge to the ban very nearly failed on technicalities. Similar technicalities will keep many Washington, D.C. residents from relying on the court’s landmark ruling that individuals have a right to possess and carry handguns in their homes for self-protection, making it risky to possess a gun even for self-defense.
Bound by its past rulings, the federal appeals court ruled that to have standing to challenge a gun ban, you have to either (a) be specifically threatened with prosecution for possessing a gun in violation of the ban, or (b) have applied for an exemption to the ban and been refused by the government. It held that five of the six plaintiffs met neither requirement and thus had no standing to challenge the D.C. gun ban.
None of the six plaintiffs qualified under (a), since none of them actually possessed a gun in their homes that was fully assembled. (As I explain below, doing so would have been risky, since they could have been prosecuted by the local D.C. courts)
Nor did five of the six qualify under (b), since they didn’t apply for an exemption to the ban — hardly surprising, given that the only exemptions to the ban are for retired D.C. cops, or guns registered before 1976. It would have been an exercise in futility to apply. But as Charles Dickens once observed, sometimes the law is an ass.
Perhaps recognizing that fact, lawyer Dane von Breichenruchardt shrewdly counseled one of the plaintiffs, Dick Heller, to apply for an exemption, which D.C. of course denied. (Heller is a guard at the Federal Judicial Center who carries a gun on duty, but D.C. will not let him possess a gun at home to protect himself). Only because Heller unsuccessfully applied for an exemption did the court hold that he had standing to challenge the gun ban, and thus hear the plaintiffs’ challenge to the ban.
The court decision striking down the gun ban, however, will not necessarily stop people from being prosecuted for possessing guns to protect themselves. Washington, D.C. has two different, parallel court systems: a court system that is part of the nationwide federal court system, which includes the U.S. Court of Appeals for the D.C. Circuit, the federal appeals court that struck down the gun-ban, and handles cases involving nationwide laws; and a local court system, headed by the D.C. Court of Appeals, which handles most violations of D.C. municipal law. The two court systems sometimes disagree about questions of law, not surprisingly since the federal D.C. Circuit is mildly conservative, while the local D.C. Court of Appeals is very liberal.
Prosecutions in the local court system generally can’t be immediately appealed to the federal courts, since the federal courts refuse to block allegedly unconstitutional prosecutions in the local courts, citing something called the Younger doctrine, even though the Supreme Court has only applied the doctrine to prosecutions in state courts (under principles of federalism and states’ rights), not courts in federal enclaves like Washington, D.C.
An appeal is possible only much later, after the defendant has been convicted and the conviction has been upheld by the local courts on appeal, at which point the defendant can then appeal to the federal courts to overturn his conviction.
So prosecutors in Washington, D.C., may continue to bring gun-possession prosecutions in the local courts, regardless of the fact that the federal courts have held the ban on gun possession unconstitutional, hoping that the local D.C. Court of Appeals will disagree with the federal D.C. Circuit about whether the gun ban is constitutional, and uphold the convictions.
Given that legal risk, residents of Washington, D.C. would accordingly be well-advised not to go out and buy a firearm just yet.
If a resident is prosecuted in the local courts for using a gun in self-defense, it would be nice to see the resident challenge not only the gun ban, but also the constitutionality of the local D.C. courts themselves. It is arguably in violation of the Constitution to have two parallel federal court systems (one national, and one local) covering the very same jurisdiction, both created by Congress, with one satisfying Article III standards, and the other not. And the local court system (the D.C. Superior Court and local Court of Appeals) clearly does not satisfy Article III of the Constitution.