- The Washington Times - Tuesday, October 29, 2013

D.C. gun owners filed a federal lawsuit in 2009 seeking the right to carry guns in public, but with a decision in the case still pending they are now taking the unusual step of seeking intervention by a higher court.

Arguing that failure to decide the case “acts as a sort of decision in and of itself,” attorney Alan Gura has filed a petition in the case asking the U.S. Court of Appeals for the District to step in and order the U.S. District Court to issue a ruling.

“The delay in resolving this case is manifestly unreasonable. It is excessive by district court’s normal standards,” Mr. Gura wrote in a petition asking for a rarely granted writ of mandamus. “Petitioners acknowledge that the case is highly controversial. But whatever a court may think of the merits, they do not require four years to discern.”

While the lawsuit was filed in 2009 and initial arguments were heard in January 2010, it has stretched on in part because the first judge who heard the case retired in 2011. The case was reassigned to Judge Frederick J. Scullin, of the U.S. District Court for the Northern District of New York, who heard a second round of arguments last year.

“We realize this is a difficult step to take but this case has been languishing for 1,475 days and counting since it was ready for decision,” said Alan Gottlieb, executive vice president of the Second Amendment Foundation, a Bellevue, Wash.-based nonprofit named as a plaintiff in the case.

But a writ of mandamus, while it can be requested for a number of reasons, is seldom granted, said J. Maria Glover, an associate professor at Georgetown University Law Center.

“It’s an extraordinary remedy, rarely granted,” Ms. Glover said. “The delay has to be extreme, it has to be clear and undisputable.”

She noted that the case being reassigned and reargued undercuts the complaint about the unreasonable delay.

“I think it’s quite significant that there was a change in judge,” she said “If it had just been four years, that’s a more compelling case.”

Appellate courts may also shy away from granting such petitions because they “don’t want to be seen as micromanaging the dockets of lower courts,” said David Vladeck, also a law professor at Georgetown.

Because such petitions are so rarely granted, the purpose of filing one can sometimes simply be to urge action “in a very public way,” Mr. Vladeck said.

In the petition, Mr. Gura noted that challenges to other handgun-carry bans, specifically in Illinois, have taken far less time to resolve.

The District is now the only jurisdiction in the country with an outright ban on carrying a firearm in public.

The lawsuit, which was brought by the Second Amendment Foundation and four gun owners, argues that the District’s “laws, customs, practices and policies generally banning the carrying of handguns in public violate the Second Amendment” of the U.S. Constitution.

An earlier lawsuit by Mr. Gura forced the District to end its 30-year-old ban on most handguns. While the city has developed regulations and permits for buying and registering firearms since the Supreme Court’s 2008 District of Columbia v. Heller ruling, guns for the most part are confined to residents’ homes or businesses and cannot be carried openly or concealed on city streets.

Three of the plaintiffs in the case are D.C. residents and licensed gun owners who each had gun-registration applications rejected by the Metropolitan Police Department because they stated their intention was to carry the loaded guns on their person outside their homes. A fourth plaintiff is a New Jersey man who was charged with carrying a pistol without a license in the District after he was found during a traffic stop to be transporting a gun. He sought a license that would allow him to transport his gun through the District but was refused.

George Lyon, 59, one of the plaintiffs, said the wait for the case to be resolved has been frustrating — particularly as he has watched firearm cases in other states advance through other court systems.

“It’s very frustrating,” said the Northwest D.C. resident. “We have gotten no indication as to why it’s taking so long.”

• Andrea Noble can be reached at anoble@washingtontimes.com.

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