Oral Argument in Parker v. D.C.

Oral argument in the Second Amendment challenge to the District of Columbia's gun ban took place on Thursday, December 7 (which I first blogged about here). This case is before the U.S. Court of Appeals for the District. (And, yes, I understand that the image in this post is of the Supreme Court. But it's a much prettier building.) A review of an abbreviated transcript in the oral argument makes it appear as though the Plaintiffs may get the pro-individual right holding they're looking for. Judge Silberman was relentless in his questioning of D.C.'s counsel, and Judge Griffith was pretty even-handed, although he asked questions that hinted he was in the pro-individual right camp. (An example was "where else in the Bill of Rights does "people" [as it says in the 2d Amendment] equal "collective?") Judge Henderson, the third judge, asked no questions.

Some of the most ballsy questions were on standing. The government claims that there has been no particularized threat of prosecution of the Plaintiffs (the District residents who want to be able to own functional guns in their homes) so the Plaintiffs have no standing, but instead should go through the administrative process. The funny thing about this argument is that there is no "administrative process" to speak of for owning functional firearms (that would be kept in the home) in the District. In any case, it looks like the standing issue won't be a big deal, as the judges weren't too impressed by D.C.'s standing argument either.

The opinion should be out in just a few months as the D.C. Circuit is usually pretty quick. Look for plenty of con law exams this spring on the 2d Amendment question.