San Diego DA clarifies position on DC gun ban case now before Supreme Court

The District Attorneys respectfully submit that the three D.C. Code provisions at issue in this appeal do not violate the Second Amendment, thus necessitating a reversal of the lower court’s decision. The District Attorneys do not focus on the reasons for the reversal, however, leaving these arguments to petitioners and other amici. Instead, the District Attorneys urge the court to consider the potentially negative, unintended, and wholly unnecessary consequences of an affirming opinion. In short, an affirmance could inadvertently call into question the well settled Second Amendment principles under which countless state and local criminal firearms laws have been upheld by courts nationwide.

For nearly seventy years, courts have consistently sustained criminal firearms laws against Second Amendment challenges by holding that, inter alia, (i) the Second Amendment provides only a militia-related right to bear arms, (ii) the Second Amendment does not apply to legislation passed by state or local governments, and (iii) the restrictions bear a reasonable relationship to protecting public safety and thus do not violate a personal constitutional right. The lower court’s decision, however, creates a broad private right to possess any firearm that is a “lineal descendant” of a founding era weapon and that is in “common use” with a “military application” today. under this vague standard, a vast range of criminal laws nationwide, including laws where possession of a firearm is an element of an offense, could be subject to a new round of constitutional challenges. As detailed below, regardless of their outcome, these challenges could create substantial uncertainty in the lower courts and strain the already slim resources of the courts and the criminal justice system. Significantly, while the courts struggle to determine the scope and application of the Second Amendment, prosecutors could be hindered in their ability to enforce criminal laws they have long understood to be valid and compromised in their continuing efforts to combat gun violence in their communities.

Indeed, Second Amendment challenges to criminal laws have already begun. A felon convicted of criminal firearm possession recently challenged a New York gun possession statute based on the D.C. circuit’s opinion below, saying he wanted to see “how far (he) could ride this pony.” If upheld, such challenges could decriminalize a breathtakingly broad range of dangerous conduct. These future constitutional challenges can and should be avoided either through this court’s reversal of the decision below or through a narrow opinion that removes any confusion as to its scope, which should be limited to the discrete question presented. In addition to minimizing unnecessary constitutional attacks, a narrow opinion will allow prosecutors to continue enforcing violent crime laws without any uncertainty about their validity.