478 F.3d 370 (D.C. Cir. 2007), 04-7041, Parker v. District of Columbia

Docket Nº:04-7041.
Citation:478 F.3d 370
Party Name:Shelly PARKER, et al., Appellants v. DISTRICT OF COLUMBIA and Adrian M. Fenty, Mayor of the District of Columbia, Appellees.
Case Date:March 09, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 370

478 F.3d 370 (D.C. Cir. 2007)

Shelly PARKER, et al., Appellants

v.

DISTRICT OF COLUMBIA and Adrian M. Fenty, Mayor of the District of Columbia, Appellees.

No. 04-7041.

United States Court of Appeals, District of Columbia Circuit.

March 9, 2007

Argued Dec. 7, 2006.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (No. 03cv00213).

Alan Gura argued the cause for appellants. With him on the briefs were Robert A. Levy and Clark M. Neily, III.

Greg Abbott, Attorney General, Attorney General's Office of State of Texas, R. Ted Cruz, Solicitor General, Troy King, Attorney General, Attorney General's Office of State of Alabama, Mike Beebe, Attorney General, Attorney General's Office of the State of Arkansas, John W. Suthers, Attorney General, Attorney General's Office of the State of Colorado, Charles J. Crist, Jr., Attorney General, Attorney General's Office of the State of Florida, Thurbert E. Baker, Attorney General, Attorney General's Office of the State of Georgia, Michael A. Cox, Attorney General, Attorney General's Office of the State of Michigan, Mike Hatch, Attorney General, Attorney General's Office of the State of Minnesota, Jon Bruning, Attorney General, Attorney General's Office of the State of Nebraska, Wayne Stenehjem, Attorney General, Attorney General's Office of the State of North Dakota, Jim Petro, Attorney General, Attorney General's Office of the State of Ohio, Mark L. Shurtleff, Attorney General, Attorney General's Office of the State of Utah, and Patrick J. Crank, Attorney General, Attorney General's Office of the State of Wyoming, were on the brief for amici curiae States of Texas, et. al. in support of appellants.

Don B. Kates and Daniel D. Polsby were on the brief for amici curiae Professors Frederick Bieber, et al. and organization amici curiae Second Amendment Foundation, et al.

Stefan Bijan Tahmassebi was on the brief for amicus curiae Congress of Racial

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Equality, Inc. in support of appellants seeking reversal.

Peter J. Ferrara was on the brief for amicus curiae American Civil Rights Union in support of appellants.

Robert Dowlut was on the brief for amicus curiae National Rifle Association Civil Rights Defense Fund in support of appellants seeking reversal.

Todd S. Kim, Solicitor General, Office of Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Robert J. Spagnoletti, Attorney General, Edward E. Schwab, Deputy Solicitor General, and Lutz Alexander Prager, Assistant Attorney General.

Ernest McGill, pro se, was on the brief for amicus curiae Ernest McGill in support of appellees.

Thomas F. Reilly, Attorney General, Attorney General's Office of Commonwealth of Massachusetts, Glenn S. Kaplan, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General, Attorney General's Office of the State of Maryland, Zulima V. Farber, Attorney General, Attorney General's Office of the State of New Jersey, were on the brief for amici curiae Commonwealth of Massachusetts, et al. in support of appellees. John Hogrogian, Attorney, Corporation Counsel's Office of City of New York, and Benna Ruth Solomon, Deputy Corporation Counsel, Office of the Corporation Counsel of the City of Chicago, entered appearances.

Andrew L. Frey, David M. Gossett, Danny Y. Chou, Deputy City Attorney, Office of the City Attorney of the City and County of San Francisco, and John A. Valentine, were on the brief for amici curiae The Brady Center to Prevent Gun Violence, et al. in support of appellees. Eric J. Mogilnicki entered an appearance.

Before: HENDERSON and GRIFFITH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

OPINION

SILBERMAN, Senior Circuit Judge.

Appellants contest the district court's dismissal of their complaint alleging that the District of Columbia's gun control laws violate their Second Amendment rights. The court held that the Second Amendment ("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") does not bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today's National Guard. We reverse.

I

Appellants, six residents of the District, challenge D.C.Code § 7-2502.02(a)(4), which generally bars the registration of handguns (with an exception for retired D.C. police officers); D.C.Code § 22-4504, which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C.Code § 7-2507.02, requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device. Shelly Parker, Tracey Ambeau, Tom G. Palmer, and George Lyon want to possess handguns in their respective homes for self-defense. Gillian St. Lawrence owns a registered shotgun, but wishes to keep it assembled and unhindered by a trigger lock or similar device. Finally, Dick Heller, who is a District of Columbia special police

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officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, wishes to possess one at his home. Heller applied for and was denied a registration certificate to own a handgun. The District, in refusing his request, explicitly relied on D.C.Code § 7-2502.02(a)(4).

Essentially, the appellants claim a right to possess what they describe as "functional firearms," by which they mean ones that could be "readily accessible to be used effectively when necessary" for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District's authority per se to require the registration of firearms.

Appellants sought declaratory and injunctive relief pursuant to 28 U.S.C.§§ 2201, 2202, and 42 U.S.C. § 1983, but the court below granted the District's motion to dismiss on the grounds that the Second Amendment, at most, protects an individual's right to " bear arms for service in the Militia." (The court did not refer to the word "keep" in the Second Amendment.) And, by "Militia," the court concluded the Second Amendment referred to an organized military body--such as a National Guard unit.

II

After the proceedings before the district judge, we decided Seegars v. Gonzales, 396 F.3d 1248 (D.C.Cir.2005). We held that plaintiffs bringing a pre-enforcement challenge to the District's gun laws had not yet suffered an injury-in-fact and, therefore, they lacked constitutional standing. Although plaintiffs expressed an intention to violate the District's gun control laws, prosecution was not imminent. We thought ourselves bound by our prior decision in Navegar, Inc. v. United States, 103 F.3d 994 (D.C.Cir.1997), to conclude that the District's general threat to prosecute violations of its gun laws did not constitute an Article III injury. Navegar involved a pre-enforcement challenge by a gun manufacturer to certain provisions of the Violent Crime Control and Law Enforcement Act of 1994, which prohibited the manufacture (and possession) of semiautomatic assault weapons. We held then that the manufacturers whose products the statute listed eo nomine had standing to challenge the law in question because the effect of the statute was to single out individual firearms purveyors for prosecution. Id. at 999. However, manufacturers whose products were described solely by their characteristics had no pre-enforcement standing because the threat of prosecution was shared among the (presumably) many gun manufacturers whose products fit the statutory description, and, moreover, it was not clear how these descriptive portions of the statute would be enforced. Id. at 1001.

In Navegar, then, the "factor ... most significant in our analysis" was "the statute's own identification of particular products manufactured only by appellants" because that indicated a "special priority" for preventing specified parties from engaging in a particular type of conduct. Id. Extending Navegar 's logic to Seegars, we said the Seegars plaintiffs were required to show that the District had singled them out for prosecution, as had been the case with at least one of the manufacturer plaintiffs in Navegar. Since the Seegars plaintiffs could show nothing more than a general threat of prosecution by the District, we held their feared injury insufficiently imminent to support Article III standing. 396 F.3d at 1255-56.

We recognized in Seegars that our analysis in Navegar was in tension with the Supreme Court's treatment of a pre-enforcement challenge to a criminal statute that allegedly threatened constitutional rights. See id. (citing Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) ).

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In United Farm Workers, the Supreme Court addressed the subject of pre-enforcement challenges in general terms:

When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."

442 U.S. at 298, 99 S.Ct. 2301 (quoting Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)). The unqualified language of United Farm Workers would seem to encompass the claims raised by the Seegars plaintiffs, as well as the appellants here. Appellants' assertions of Article III standing also find support in the Supreme Court's decision in Virginia v. American Booksellers Ass'n, 484 U.S....

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