Bylined Articles

High Court Gun Case Could Impact Proposed Philadelphia Regulations

By Matthew A. Taylor and Michael S. Zullo
April 4, 2008
The Legal Intelligencer

In 2007, 392 residents of Philadelphia were murdered, which equated to about 27 murders per 100,000 residents. This number, although down slightly from 2006, was still a significant increase from 2002, when there were 288 murders in the city. Of the 392 murders in 2007, about 87 percent were committed with a firearm. Reacting to this, in January 2008, newly inaugurated Mayor Michael Nutter set forth the ambitious goal of reducing the city's homicide rate by 30 to 50 percent over the next few years. To accomplish this goal, Nutter named Charles H. Ramsey as the new police commissioner. Ramsey is the former police commissioner of the District of Columbia, who, during his six-year tenure, saw crime rates decline by about 40 percent. Notably, at the same time Ramsey was being selected to preside over an aggressive plan to reduce homicides in Philadelphia, a former Washington gun law, which was in place throughout Ramsey's tenure, was found to be unconstitutional and is now at the heart of the most significant Second Amendment case before the U.S. Supreme Court in recent times.

Specifically, the court has been asked to determine if certain regulations in the D.C. Code, banning the possession of handguns by Washington residents, "violate[s] the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes," a question the Federal Circuit answered affirmatively.

The implications of the Supreme Court's anticipated ruling are far reaching. The ruling will definitively address whether or not the Second Amendment grants an absolute right to individuals to possess firearms, or whether that right is a collective right tied to an individual's service in a state militia such as the National Guard. This, in turn, will directly affect the scope of permissible state and municipal gun regulations.

More specifically, the decision may have severe implications for Philadelphia. Recently, the Pennsylvania Commonwealth Court heard arguments in a case filed by Philadelphia City Council members seeking permission to enact city gun-control regulations. There, City Council members argued that the state Legislature, which has had exclusive authority to pass gun-control laws since 1974, has failed the city by neglecting to address the gun issue. They contend that local ordinances are needed to protect the city that has come to be known by some as "Killadelphia." Should City Council obtain the relief it seeks from the Commonwealth Court, however, it may ultimately face yet another hurdle in the wake of the impending Supreme Court decision in District of Columbia v. Heller, No. 07-290. Heller is the first case before the Supreme Court dealing with the Second Amendment in almost 70 years. The case arose out of a challenge to D.C. Code provisions relating to gun ownership. In particular, the challenged portions of the code provide that "[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license." The code, however, also prohibits the registration, and as such the licensing, of all pistols in the District of Columbia, meaning that the code effectively bans the ownership of handguns within the District of Columbia. The code also requires that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock.

Respondent Heller is a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center. Heller wished to possess a gun at his home, and so applied for and was denied a registration certificate to own a handgun in accordance with the aforementioned provisions of the D.C. Code.

Heller filed his action, along with five other plaintiffs - ultimately Heller was the only one found to have standing - in the District of Columbia District Court seeking declaratory and injunctive relief. Heller argued that the D.C. Code violated his Second Amendment right to possess "functional firearms" that are "readily accessible to be used effectively when necessary" for self-defense.

The district court dismissed Heller's claim, reasoning that the Second Amendment, at most, protects an individual's right to "bear arms for service in the Militia."

This decision was overturned on appeal. After addressing standing issues, the Federal Circuit Court of Appeals began its discussion with a detailed analysis of the language of 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."

As the court noted, the provision's second comma divides the amendment into two clauses: a prefatory one and an operative one.

The District of Columbia argued that both provisions of the amendment express a right qualified by the contemplation of the "civic" duty of service in a militia. In advancing this argument, the District of Columbia examined the political context of the amendment, stating that the amendment was drafted to address fears that a strong federal government would disarm state militias by either preventing men from bearing arms while in actual militia service, or by preventing them from keeping arms at home in preparation for such service. Heller, on the other hand, argued that the prefatory language did not impose a limit on the operative clause, but rather served as an illustration of one of many reasons individuals retain the right to "bear arms."

Scholarship on the Second Amendment has long focused on these contrasting theories. The former has been identified as the "collective right" theory while the latter has come to be known as the "individual right" theory. More recently, there has emerged a "sophisticated collective right" model, which at its core acknowledges that individuals could theoretically raise Second Amendment claims against the federal government but still defines the Second Amendment as a purely civic provision that offers no protection for the private use and ownership of arms. Ultimately, the Heller appellate court rejected all notions that the Second Amendment embodies a collective right tied to a civic purpose.

Immediately, the court took exception to a "collective right" reading observing that such a reading renders the Second Amendment a "dead letter." In other words, given that "well regulated Militia[s]" of the founding era are no longer in existence today, the collective right theory is premised on the notion that the "invocation of the Second Amendment right is conditioned upon service in a defunct institution." The court further reasoned that it would be inconsistent with the remainder of the Bill of Rights to read the phrase "right of the people" as a collective right tied to performance of a civic duty. Specifically, the court noted that the rights vested in "the people" by the First, Fourth, Ninth and 10th Amendments have always been understood to be rights of individuals. The court also rejected the notion that the Second Amendment was drafted solely as a means of protecting state militias. There, the court observed that the 10th Amendment clearly distinguishes between states and the people:

"The powers not delegated to the United States by the Constitution . . . are reserved to the states respectively, or to the people." Thus, as the court argued, the framers were capable of drafting the Second Amendment as a means of protecting the state militias, but they expressly did not.

The court also noted that the Second Amendment is not a grant of a right, but rather a preservation of a right that "pre-existed the Constitution." As the court reasoned, the language of the Second Amendment speaks to preventing the government from infringing upon what had presumably been recognized as lawful private purposes for which people of the time had owned and used arms prior to the drafting of the Constitution, i.e. self-defense and hunting.

In its petition to the U.S. Supreme Court, the District of Columbia took exception to the appellate court's reading of the Second Amendment. It argued that both provisions of the Second Amendment, the prefatory one and the operative one, speak to a right tied to service in a militia. In its papers, the District of Columbia stated that the appellate court's reasoning "read the entire first clause to be extraneous and the second to be in tension with the natural, military meaning of 'bear arms.'"

Here, the District of Columbia noted that the prefatory language of the Second Amendment is unique in the Bill of Rights and that this language states the reason for the existence of the amendment: to support a "well regulated Militia." The District of Columbia cited the Supreme Court's decision in United States v. Miller, where the court stated that "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [the state-regulated militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." Miller, however, did not reach the issue of individual rights versus a collective right, and instead limited the term "arms" to those "arms" whose "use or possession . . . has some reasonable relationship to the preservation or efficiency of a well regulated militia."

Nevertheless, the District of Columbia relied on Miller as support for its argument that the Second Amendment is, at its heart, about the use of "arms" in a military sense.

Specifically, the District of Columbia argued that this is implicit in Miller because that decision defines "arms" with reference to those needed for the preservation and use within a "well regulated militia." Moreover, the District of Columbia argued that the appellate court's focus on the "right of the people" was misplaced because merely recognizing a right does not define its scope. In other words, "[t]he question is not whether individuals can enforce the right protected by the Second Amendment. The question instead is whether this right is limited to the possession of militia-related weapons."

Both sides made further arguments to advance their positions, the breadth of which are beyond the scope of this article. What remains clear, however, is that the impending Supreme Court decision will greatly impact states and municipalities that attempt to address gun violence with regulations. In this regard, it is worth noting that the District of Columbia focused a significant portion of the introductory paragraphs in its papers on a discussion of its epidemic of violence and the need for such regulations. This argument was echoed before the Commonwealth Court by Philadelphia City Council members who seek to enact local gun ordinances.

In particular the Council members want to curb "straw" purchases of guns in Philadelphia; i.e. purchases of guns made by persons with clean records who turn around and give the purchased guns to persons who would not otherwise qualify to purchase a gun.

Council members have argued that lax gun laws in Philadelphia have allowed criminals to obtain guns without much hassle and have turned the city into a source of guns for those residing in New York and other states with stricter laws.

In this vein, Council members have proposed an ordinance that limits the purchase of handguns to one per month and another that requires citizens to report all lost or stolen guns. Yet, if the Supreme Court determines that the Second Amendment grants an individual an unqualified right to own and possess firearms, the proposed ordinance that limits the number of guns a citizen can purchase in a month, and other similar ones that place limits on gun ownership, may end up in the crosshairs. That is, assuming City Council gets past the current roadblocks preventing it from enacting local gun laws, the proposed limitations, which obviously impact an individual's right to purchase firearms, may arguably be a violation of an unqualified individual right to possess firearms.

Of course, until the scope of the right embodied in the Second Amendment is defined, it is impossible to determine how far the state Legislature or City Council may proceed with gun regulations. If the right is determined to be a collective right, perhaps an outright ban on handguns, similar to the one at issue in Heller, could be adopted as a means to curb gun violence in the city. On the other hand, if the right is an unqualified individual right, there may be no law imposing limits on gun ownership that would pass constitutional scrutiny.

Matthew A. Taylor is the chair of Duane Morris' trial practice group and a partner in the firm's Philadelphia office. Taylor's practice focuses on commercial litigation, often in the areas of banking and securities law, corporate governance, commercial real estate, product liability, licensing issues and officer's liability matters. He is also experienced in employment litigation matters.

Michael S. Zullo is an associate in the firm's trial practice group in Philadelphia. His practice centers on commercial litigation, particularly antitrust and franchise matters. He has represented clients in commercial contract disputes, securities disputes and franchising litigation. He is an editor for the Antitrust Litigator Newsletter.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.