Defending the Washington, D.C., gun ban before the Supreme Court yesterday, Walter Dellinger insisted it was never the city's intent to prohibit residents from using rifles and shotguns for self-defense in the home. All it wanted to do, Dellinger said, was ban handguns, because they are highly portable, readily concealable, easily stolen, and uniquely suited to urban crime. Even if (as seems likely) the Supreme Court rules that the Second Amendment protects an individual right to arms, he said, it should uphold the handgun ban as a "reasonable regulation":
Chief Justice John Roberts: What is reasonable about a total ban on possession?
Dellinger: What is reasonable about a total ban on possession is that it's a ban only on the possession of one kind of weapon, of handguns, that's been considered especially dangerous….There is no showing in this case that rifles and [shotguns] are not fully satisfactory to carry out the purposes [of self-defense].
But as Roberts, Justice Samuel Alito, and Justice Antonin Scalia noted, D.C. requires that all firearms, including long guns, be kept "unloaded and disassembled or bound by a trigger lock or similar device." The statute does not include an exception for self-defense. It thus seems to rule out unlocking and loading a gun even while under attack, let alone keeping one loaded and unlocked in case of an attack. Dellinger nevertheless maintained that the law does not prohibit the possession of functional firearms in the home, contrary to the interpretation the city has offered in previous cases and the one it implicitly endorsed at the U.S. District Court level in this case.
The District, which initially was openly contemptuous of the argument that D.C. residents should be allowed to defend themselves with guns, apparently has warmed to the idea. "It is a universal or near universal rule of criminal law that there is a self-defense exception," Dellinger said. "We have no argument whatsoever with the notion that you may load and have a weapon ready when you need to use it for self- defense." He added that "there ought to be an opportunity for the District of Columbia to urge its construction, which would allow for a relatively robust self-defense exception to the trigger lock provision." To which Scalia replied:
I don't understand that. What would that be—that you can, if you have time, when you hear somebody crawling in your bedroom window, you can run to your gun, unlock it, load it, and then fire? Is that going to be the exception?
Dellinger said he reads the storage requirement as permitting two options: "unloaded and disassembled" or "bound by a trigger lock" (as opposed to "unloaded and disassembled" or "unloaded and bound by a trigger lock"). In other words, it's OK to keep a gun loaded as long as it's locked, which Dellinger said can be accomplished with a combination lock that can be removed in three seconds. Two justices wondered if the operation would be that fast in an actual emergency:
Scalia: You turn on the lamp next to your bed so you can turn the knob at 3-22-95…
Roberts: You turn on the lamp, you pick up your reading glasses…
At another point Dellinger said a good test case would involve "a loaded gun on [the] night stand, no children present, without a trigger lock." If a gun owner could escape conviction for violating the storage requirement in those circumstances, he said, "I think then the statute might well be constitutional." If not, "in my view, it probably wouldn't be."
Note that all of Dellinger's proposed end runs around the plain language of the storage requirement involve getting arrested for exercising the fundamental right of self-defense and hoping the courts will be sympathetic—a situation that, as I argued last week, should be considered unacceptable. In the end, Dellinger basically invited the Court to throw out the storage provision, saying, "if we are wrong about that and the trigger lock [requirement] is invalid, that has no effect on the handgun ban."
A transcript of the oral arguments is available here (PDF). A ruling is expected in June.