Lots of conversation recently about the D.C. Government’s handgun ban  (Glenn Reynolds at Instapundit and The Corner at National Review have commentary, for starters).

For additional and unique insight and perspective on the matter, we turn now to Extreme Mortman senior historian Richard Andrews.  Here’s Richard:

District of Columbia Mayor Fenty and his taxpayer-funded lawyer had an op-ed in the Washington Post Tuesday (followed by a Post editorial Wednesday) whining about D. C.’s forthcoming request to the U. S. Supreme Court to reverse the U. S. Court of Appeals for the D. C. Circuit decision killing their 30-year-old pet handgun ban as violative of the Second Amendment to the U. S. Constitution.

Both pieces, being of the opinion/advocacy genre, pretty much take as givens that the Court will take up their case, and issue a sweeping decision of nationwide import  - on their side.  Their opponents in the case, judging from news reports, seem to be of the same view - other than as to which side will win.

Well, maybe not.

First, the Supremes have been dodging cases about the Second Amendment for over half a century - either not reviewing them at all, or deciding them on other or narrower grounds (such as the 1997 case of Printz v. U.S., decided instead on 10th Amendment grounds, as part of the Court’s 1990s campaign to revive Federalism).  This case contains fine opportunities for either result, leaving the big question still up in the air - everywhere but the District.

The District’s petition, in trying to gain the Court’s attention, contains the usual claim that the decision in question conflicts with similar cases decided in U. S. Courts of Appeal in other Circuits, and that Supreme intervention is need to avoid having rights under Constitution differ from place to place within the nation.  The claim is rather dubious in this instance, because the District of Columbia IS a rather different sort of place, Constitution-wise.

The decisions from OTHER Circuits all involve folks seeking to have their interpretation of the Second Amendment held to apply to the states, via the 14th Amendment’s “equal protection of the laws” provision, under the Supreme Court’s “incorporation” doctrine - that some, but not all, of the Constitution’s Bill of Rights (first ten Amendments) are so fundamental that the states must follow them, too - not just the federal government, the Bill of Rights’ original target.

However, D. C. is NOT a state - and the Supreme Court has long held that the Bill of Rights applies directly to it, as merely an arm of the federal government.  For example, when in 1954 the Court outlawed racial segregation in state public schools under the 14th Amendment (Brown v. Board of Education of Topeka, KS), it decided a separate case (Bolling v. Sharpe), in a separate opinion, declaring that the Fifth Amendment in applying to D.C. directly mandated the same result.

Thus, the D. C. Circuit Appeals Court, not having to determine whether the Second Amendment’s right to bear arms was a “fundamental” right, could make a decision that would stand very easily beside other Circuit’s presumed choices that it was not sufficiently “fundamental” to deserve protection against the states’ normal exercise of the police power.  This gives the Supreme Court an excellent out to simply not hear the case: there is no “conflict,” because the grounds of the decision are not the same.

(The Court is peculiarly familiar with the use of handguns for self-defense - the late Chief Justice Burger,  answering a knock on the door of his home late one night, prudently brought along a large caliber revolver; rather surprising the unexpected reporter seeking comment on a case!)

Similarly, even if the court should decide to take up the case (only the votes of four Justices are needed to hear the matter), a majority might then still limit the decision (if it goes against the District) to the federal government its districts, Commonwealths and territories - leaving the question of application to the states ‘for another day.’

The very live potential for one of these two scenarios to occur has so far been undiscussed in any the journalistic reports/advocate diatribes.  Neither would make either side completely happy, but the later course could make for a finely honed piece of constitutional decisionmaking - something just up Chief Justice Roberts’ alley - while saving the main public controversy for the future, if only in the cause of lawyer relief.