Yesterday, D.C. Mayor Adrian Fenty made good on his promise to appeal Parker v. the District of Columbia to the Supreme Court. The lawsuit contended that the District’s gun laws — which virtually ban handguns, and require that long guns be stored, locked and unloaded — violate the Second Amendment right to keep and bear arms. An appeals court agreed, striking down the laws, though they remain in effect pending the Supreme Court’s decision.
Assuming the court hears the case (the odds are very high), Mr. Fenty’s main problem is his argument. It relies heavily on a misreading of the Supreme Court’s last gun case, 1939’s U.S. v. Miller. Mr. Fenty interprets Miller to mean that only state militia members have the right to bear arms. In Miller, the Supreme Court sided against a man who’d been convicted of possessing a sawed-off shotgun. The court did in fact note that the Second Amendment was written to protect militias. However, the court also observed that “the Militia comprised all males physically capable of acting in concert for the common defense.”
More importantly, the court’s decision did not hinge on the fact that the man was not a militia member. Rather, the problem was that he failed to prove that a sawed-off shotgun was a militia-type weapon. So, Mr. Fenty’s investment in this case is quite a gamble. David T. Hardy, an Arizona attorney who has written extensively about Second Amendment law from an individual-rights perspective, predicted Mr. Fenty would lose. He counted Justices John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito in the pro-gun camp and said any of the five other judges could join them.
Looking at trends in the murder rate, the 1976 ban clearly had little effect. When the drug wars came a decade later, the law did little to halt the carnage. As mayor, Mr. Fenty needs to pick his battles. Between the high risk of losing and the low payoff of winning, this one isn’t worth fighting.