Cases Take Aim at District's Gun Law
Attorneys Use Bush Administration's Second Amendment Stand in Attack on Ban

By Arthur Santana and Neely Tucker
Washington Post Staff Writers
Thursday, June 13, 2002; Page A20

Defense attorneys in the past two weeks have filed about 30 motions in D.C. Superior Court asking judges to dismiss gun-carrying charges against their clients based on the Bush administration's assertion that the Second Amendment gives them the right to bear arms.

But judges so far have been turning aside these pretrial motions -- three rejections to date -- and are saying a 15-year-old D.C. Court of Appeals decision upholding the District's gun ownership ban is a binding local precedent.

Robert Levy, senior fellow for constitutional studies at the Cato Institute, a D.C.-based nonprofit think tank, said the rulings shouldn't quiet concerns that the city's gun law might be vulnerable. The motions, he said, are just the first step.

"These guys will be convicted. They'll go up to the Court of Appeals. And the next step is the Supreme Court," Levy said. He agrees with U.S. Attorney General John D. Ashcroft's statement that gun bans violate the Second Amendment.

But Mathew Nosanchuk, litigation director for the Violence Policy Center, a gun-control advocacy group, said that as cases go through the court system, "the Ashcroft Justice Department will not be able to continue speaking out of both sides of its mouth on the Second Amendment issue."

People on both sides of the gun control issue have long argued about the meaning and intent of the Second Amendment, which states: "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."

The U.S. Supreme Court ruled in 1939 that possession of a sawed-off shotgun is not required by a state militia. That decision has been interpreted by lower courts as not conferring to individuals a constitutional right to bear arms.

Ashcroft, in a letter last year to the National Rifle Association, said he disagreed. When a 5th U.S. Circuit Court of Appeals opinion in October said the Second Amendment did apply to individual rights, he sent a memo to all U.S. attorneys citing the case as precedent.

The agency supported the 5th Circuit opinion in papers filed with the U.S. Supreme Court, which, on Monday, declined to review the case.

Julie Leighton, of the District's Public Defender Service, said the U.S. government "is currently prosecuting individuals solely for 'bearing' a pistol, even though many of those individuals have no prior convictions and are adult citizens of full mental capacity. Thus the United States persists in prosecuting District of Columbia residents for conduct that the Attorney General has expressly deemed protected by the United States Constitution."

Since May 31, three Superior Court judges -- Judith Retchin, Robert I. Richter and Ann O'Regan Keary -- have denied motions by defendants to dismiss on constitutional grounds charges of carrying a pistol without a license. Two of the defendants also were charged with first-degree murder, and one of them was convicted Friday of that and other gun-related charges. A third defendant is a convicted felon who was prohibited from carrying a weapon as a condition of his parole.

On June 4, Judge Rafael Diaz upheld a magistrate judge's order to hold Bashaun Pearson, 25, after his June 2 arrest in the District for having a pistol that was registered in Maryland.

Pearson has appealed his detention to the D.C. Court of Appeals. His case is unique because, unlike in the three other cases, he was arrested only on the gun charge. His attorneys are arguing that his detention was unconstitutional.

On June 6, the Office of the Corporation Counsel filed a motion with the court, asking to intervene in defense of the city's gun law.