The importance of the Parker (D.C. gun ban) case
By Ken Hanson
The Second Amendment Foundation (SAF) is making some significant and breathtaking progress in the field of Second Amendment jurisprudence. SAF, together with Virginia attorney Alan Gura, has come up with an exquisite legal strategy to get the question of the Second Amendment as a fundamental, individual right squarely before the Supreme Court of the United States (SCOTUS) in the next two years.
While it is shocking to most people, the SCOTUS has never really had a case squarely dealing with the Second Amendment as an individual right, and has never reached the issue of whether the Second Amendment even applies to states. (Remember, prior to the 14th Amendment, the Bill of Rights as a whole did not necessarily restrict state action.) The SAF strategy has included filing very “limited in focus” lawsuits in 2 different federal districts, the Dearth case in Ohio’s Southern District and the Hodgkins case in Texas’ Northern District, as well as the Parker case in the D.C. District. Why so many different, and costly, lawsuits to answer one question?
Simple - two different strategies.
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In the Dearth and Hodgkins cases, there are two suits with the same fact pattern attempting to address the question raised above. Why file essentially the same lawsuit twice? They were filed in courts that belong to two different appellate districts. In one district/circuit, the Texas 5th, a pro-2A decision would be expected. In the other, the Ohio 6th, a pro-gun control decision would be expected. This would result in the exact same fact pattern yielding two different decisions, meaning it is almost guaranteed that the SCOTUS would have to take up the issue and settle it once and for all. The SCOTUS has broad discretion on whether to hear a case or not. One of the most surefire ways to get a case in front of the SCOTUS is a “conflict” case, where the exact same fact pattern has been decided two different ways.
The Parker case presents an alternative approach. In that case, a rabidly anti-gun behemoth, the District of Columbia, is sued over their gun ban. Once procedural issues, such as standing to sue, are satisfied, the only issue left before the Court is deciding if the Second Amendment means what it plainly says. The Parker case includes a mix of Plaintiffs to address standing issues the District of Columbia can raise. This is not an insignificant feat; prior lawsuits on this issue have been dismissed on these same procedural grounds. Parker dodges this bullet, and attorney Gura and the SAF deserve a tip of the hat for getting the case through.
So now there is a case, Parker, that must squarely decide the issue near and dear to our hearts. It does so with fantastic results for gun owners – the Appellate court decides the Second Amendment is an individual right, just like all of the other rights contained in the Bill of Rights, and strikes down the D.C. gun ban. Now the District of Columbia must ask for the full court to review the case, called an en banc hearing, or take it right to the SCOTUS. Either way it appears a great fact pattern for gun owners, a complete gun ban, is destined for the SCOTUS in the next year.
But why do I care about the D.C. gun ban? Simple, this decision is now a decision that can be used in ANY state court action. While binding only in the District of Columbia, the Parker decision is quite persuasive and will be of use in the year or two that it takes to reach the SCOTUS. Most state courts will be bound by their own federal court interpretations for the near term, but Parker offers light at the end of the tunnel. The most critical factor of the Parker decision is that the court found the Second Amendment is just like any other right, and must be judged the same as the other rights, such as the First Amendment rights. This increased level of scrutiny is a nightmare for gun banners – they must now defend gun bans by demonstrating that there is a compelling state interest and the gun ban law clearly addresses that state interest. This is called “strict scrutiny” and it is used in cases involving a fundamental right, unlike the easier to satisfy “rationale basis” scrutiny.
This increased scrutiny is the most important part of the Parker case. Take Ohio, for example. In Ohio, our Federal district has not recognized the fundamental, individual right view; instead, the district has adopted the collective right view. Further, even though the Ohio Supreme Court has found that there is a fundamental, individual right to keep and bear arms under the Ohio constitution, the Court declined to apply the proper strict scrutiny test, and instead applied the looser, easier to satisfy rationale basis scrutiny. All of our gun bans have been decided under these easier standards. If Parker goes through the SCOTUS, just about all of Ohio’s anti-gun decisions for the last century go out the window.
It is very easy for a government to justify a gun ban under rational scrutiny. Under strict scrutiny, the government will have to show that the law clearly addresses a governmental interest. While the first prong, government interest, is easy to satisfy (the government clearly has an interest in fighting crime) the second prong, clearly addressing that interest, will be next to impossible for the government to prove. There is not one study that shows with any degree of certainty that gun control impacts crime.
Gun control disarms victims, not criminals.
The Parker case is a nightmare for gun banners. If the SCOTUS adopts this opinion (it might be as soon as this time next year the case makes it to the SCOTUS) the gun banners are all but finished. Think about that, rather than fighting for the next 5 years over the next Pelosi assault weapon ban, the issue is killed in the cradle.
This is a critical decision and strategy. Even if Parker fails to get up there, the Dearth and Hodgkins case are “on deck” to accomplish the same result.
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