New Gun Rights Suit In D.C. Tests 2nd Amend Limit Source: by Declan McCullagh CBSNEWS BLOG Created: 08/07/2009 10:41:22 AM AKDT
(CBS) One question left unanswered by the U.S. Supreme Court's landmark Second Amendment ruling last year is this: When do law-abiding Americans have the right to carry firearms in public for self-defense?
In a lawsuit filed against the city of Washington, D.C. on Thursday, the Second Amendment Foundation aims to find out.
The plaintiffs are four gun owners who were denied licenses to carry firearms in public on their person, which nearly all states permit. All U.S. states except Illinois and Wisconsin grant licenses for concealed carry, and 36 states require local police to issue the licenses unless there's a valid reason (such as a criminal history) not to do so.
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The District of Columbia is a special case. Its city code says nobody may carry "either openly or concealed on or about their person, a pistol, without a license." But a law enacted in December 2008 appears to have curbed the ability of the police chief to grant those licenses.
"This really isn't about concealed carry," Alan Gottlieb, founder of the Second Amendment Foundation, told CBSNews.com in an interview on Thursday evening. "It's about being able to carry a gun, period. D.C. can prescribe some form or fashion or regulation or restrictions, but there's no way they can say you can't do it at all."
Part of the blame for this uncertainty -- how far does the Second Amendment extend? -- can be laid at the doors of no less an authority than the U.S. Supreme Court.
In the D.C. v. Heller case, the justices struck down the District's no-handguns-in-your-own-home ban on the grounds that it violated the Second Amendment, but they weren't terribly specific about what else might or might not cross the line.
Put another way, the text of the Second Amendment says that "the right of the people to keep and bear arms, shall not be infringed." Last year's Heller case dealt with the right to keep arms, but what about the right to bear arms?
The justices' majority opinion acknowledged that "at the time of the founding, as now, to 'bear' meant to 'carry,'" and that the phrase "'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia." Also: "We find that (the clauses) guarantee the individual right to possess and carry weapons in case of confrontation.""
Just to make things more complicated, though, the majority opinion also says: "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Permitting law-abiding Americans to carry loaded firearms on their person doesn't fall squarely into one of those categories, which has given gun rights groups some reason to be optimistic in the current lawsuit against Washington, D.C.
"We're not against all gun laws or forms of gun control here," Gottlieb said. "We're not saying that you can bring your gun to the Capitol building or the White House. But there are obviously places where you should be able to carry a gun for self-defense."
This is one case that's more likely than most to end up at the Supreme Court once again. Sonia Sotomayor was confirmed as an associate justice on Thursday, but few court watchers expect that to make a difference: as I wrote in May, both she and David Souter (her predecessor) appear to believe the Second Amendment does not protect an individual right to keep and bear arms.
Thursday's complaint filed against the District invokes two constitutional rights: First, it says that general bans on "carrying of handguns in public violate the Second Amendment to the United States Constitution"; and second, that the city's repeated refusals to grant permits "violate the rights to travel and equal protection secured by the Due Process Clause of the Fifth Amendment."
The only problem with that approach is that even though the Supreme Court said that a constitutional right to keep and bear arms exists, subsequent rulings by appellate courts have routinely said it's so limited that it doesn't have much meaning in practice. (One of those cases involved Sotomayor, and another involved a California anti-gun law.) If anti-gun types can convince judges to continue this approach, they may be able to win the next few rounds even though the Heller decision is technically the law of the land.
On the heels of a recent victory in Heller knocking down the District of Columbia's ban on residents keeping handguns in their homes, the lawyer responsible for that victory now seeks to expand gun rights further. In a lawsuit filed last week, three D.C. residents ask for the right to carry and conceal weapons in public. The three residents had their gun registration applications rejected when they informed the police that they intended to carry loaded guns outside of their homes. Two of the three residents were also plaintiffs in the previous D.C. gun case. The Bellevue, Washington nonprofit gun-advocacy organization Second Amendment Foundation is also a plaintiff in the suit.
The suit also seeks to extend the right to carry a gun to non-District residents who have gun permits issued elsewhere. According to the lawyer for the plaintiffs, many non-District residents who have gun permits from other jurisdictions are not aware that they cannot bring guns into D.C. and are often arrested for minor violations and then jailed once officers discover their concealed weapons. The suit would force the District to recognize any conceal-and-carry permits issued from other jurisdictions.
Opponents of conceal-and-carry argue that increasing the number of armed citizens on the streets creates a nightmare for law enforcement. This is particularly true in D.C. with the heightened security due to the large number of federal buildings and employees.
Both sides agree that this recent case will test the limits of the Heller decision, and many see the filing of the case as intending to do just that. The Heller decision was grounded on the rationale that a person had a Second Amendment right to keep a handgun in their home for self-protection and was seen by many constitutional scholars as an expansion of Second Amendment jurisprudence. Even in wiping away the Districts previous ban on handguns, Justice Scalia wrote that "the right secured by the Second Amendment is not unlimited," suggesting that the Court would entertain drawing the boundaries of the right to own a weapon for personal protection. The question posed in this current litigation is whether or not the right to own a weapon for personal protection can be extended to the right to carry a concealed, loaded weapon in public for protection as well.
New D.C. Rules Mark One-Year Anniversary of Historic Heller Decision
Friday, June 26, 2009
Today, June 26, marks the one-year anniversary of the landmark D.C. v. Hellercase, in which the U.S. Supreme Court struck down Washington, D.C.’s handgun ban and affirmed that theSecond Amendment protects an individual right. The Court ruled that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.This meaning is strongly confirmed by the historical background of the Second Amendment.”
Yet despite this great victory, we can’t rest on our laurels.Those who would still deny our Second Amendment freedoms are always looking for ways to thwart our success and reverse that decision.And while the case affirmed that the Second Amendment prohibits the federal government, and federal entities such as Washington, D.C., from banning handguns for self-defense, the decision did not resolve the separate question of whether the Second Amendment applies to state and local governments.
As this is written, litigation is still going on in Washington, D.C. to implement the Heller decision.Suits by NRA and others have challenged the city’s adoption of California’s “handgun roster” scheme, as well as its ban on guns the city calls “assault weapons” and on standard-capacity ammunition magazines that hold more than 10 rounds of ammunition.
As originally implemented in the District, the “roster” system prohibited residents from acquiring handguns that are not approved for sale in California.Because manufacturers who seek listing on the California roster have to pay a fee for each model of handgun they want to sell in California, and also have to submit guns for testing, listings on the California roster regularly expire and many guns are never sold there in the first place.
Some of the plaintiffs in the current D.C. cases wanted to register guns that aren’t on the California roster because they were never submitted by manufacturers, or not renewed.Others wanted to register guns that were discontinued by manufacturers long before the roster existed—including a single-action .22 revolver identical to the one Dick Heller sought to register in the original case.
In the past two weeks, D.C. responded by issuing two sets of “emergency” regulations.The “emergency,” apparently, is the District’s desire to end these lawsuits, because the new rules adopt the Maryland and Massachusetts handgun rosters as part of a new “District Roster,” deem all handguns made before 1985 to be included on the “District Roster,” and exempt all pre-1985 single-action revolvers from the roster requirement.The “emergency” regulations have little effect on the “assault weapon” or magazine bans.
While the full impact of these changes on the lawsuits has not yet been determined, this is an important step toward recognition of District residents’ rights.We’ll be sure to keep you informed on any new developments.
Washington
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Council member Phil Mendelson endorses gun registration, though D.C.'s murder rate doubled after its gun law took effect in 1976 ["D.C. Vote: This Is About Safety, Not the 2nd Amendment," Local Opinions, March 22]. He claims that the Supreme Court upheld gun registration in the Heller decision, but the court did not. Registration was not challenged in that case.
Mr. Mendelson claims there is "a right of individuals to be protected by the police," when in Warren v. D.C. (1981) the D.C. Court of Appeals ruled that people have no right to police protection. Mr. Mendelson got one thing right. Eliminating gun control facilitates "the right of individuals to protect themselves."
That's why the NRA supports congressional legislation to eliminate D.C.'s registration law. It's time for the city's decades-old experiment in curtailing freedom to end. City officials cannot fairly cry for a right to vote while limiting the more important right of self-defense.
CHRIS W. COX
Voting and Gun Rights in the District
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I take issue with Marc Fisher's March 12 Metro column, "Hard Line on Guns Could Set Back D.C. Voting Rights." He accused District officials of enacting "preposterously restrictive gun control rules." Mr. Fisher is wrong, and moreover, he discounts the fact that we are carrying out our responsibility to speak for the majority of our constituents who want a safe city and the voting rights they have long deserved.
In revising the city's gun laws, the D.C. Council not only met the requirements of the Supreme Court decision in Heller, it went well beyond them. In fact, many of the provisions in the Second Amendment Enforcement Act proposed by Sen. John Ensign (R-Nev.) are already in the District's firearms registration law. For example, the Senate measure would repeal the District's ban on semiautomatic weapons. Unnecessary. We revised our law to permit the registration of semiautomatics. The Senate amendment would revise the District's definition of a machine gun to conform to federal law. Done.
The amendment's language would restore the right of self-defense in the home. No need. Guns in residents' homes no longer must be kept locked and unloaded as required before Heller.
While the District's new gun regulations are similar to those of many jurisdictions, our government also has a special responsibility not only to protect its residents but also to protect federal officials and buildings. This unique position mandates that we reserve the right to be more cautious on firearms. Our caution leads us to find unacceptable provisions in the amendment that allow people with a history of violence or mental illness to have guns.
We still hope that discussions among congressional allies will result in a floor vote on a voting rights bill without unrelated amendments in the coming days. D.C. residents want a bill that grants a long-overdue civil right without imposing the heavy price of increased gun violence.
VINCENT C. GRAY
Congressman Ross leads effort to keep gun control law at bay
By Wendy Ledbetter The Daily Siftings Herald Thu Mar 26, 2009, 02:42 PM CDT
Prescott, Ark. - PRESCOTT — U.S. Congressman Mike Ross said a delegation of pro-gun Democrats was successful in stopping the possibility of reinstating a weapons ban that had expired five years ago. In a telephone interview Wednesday, Ross said he had led the effort, which included a 65-member delegation. The group wrote a letter in opposition to reinstating the weapons ban, which had recently been discussed by U.S. Attorney General Eric Holder.
Ross said his reasons for speaking out against the weapons ban are simple. “The Second Amendment to the Constitution gives us all the right to own firearms,” Ross said. Ross said that ownership of firearms for hunting is one aspect, but that owning firearms for personal protection is an equally important part of that right.
The weapons ban that had reportedly been discussed by Holder’s office was in effect from 1994 through 2004 when a sunset clause adopted at its passage came into effect, eliminating the law from the books. That law banned some types of weapons, reportedly aimed specifically at assault weapons. While it can be argued that the goal of that ban was to eliminate weapons typically used in crimes, there are some studies available that dispute the effectiveness of that claim.
The problem with that ban, according to Ross, is that crime didn’t go down. “Criminals will get guns whether we have gun control laws or not,” Ross said in a press release issued earlier this week. “Regulating guns will not keep guns out of the hands of criminals, but it will keep guns out of the hands of those trying to defend themselves from criminals.”
During the telephone interview, Ross said that he enjoys hunting and that the sport is a way of life for many in rural America. He said there is also a responsibility on those who hunt to share that with the next generation. “It’s not only part of our heritage, it’s a big part of what we are,” Ross said. “It is up to us to take our children hunting and teach them that this is an important part of our heritage and our tradition. I love to deer hunt, duck hunt. I take my son with me every chance I get.”
Ross said there have also been rumors that ammunition would be heavily taxed or unavailable. He said that has never been a part of any announced plan and that he would fight equally hard against such a plan.
Ross said he believes there is some question in the minds of the general public as to who among the members of Congress is pro-gun control. While he said that party affiliations are sometimes a factor, he said the “address” is also a factor. “It has more to do with who those people represent,” Ross said.
Ross said there are many who believe — as he does — in the “common sense” approach. The 65 who supported Ross’s plan to object to additional gun control is, according to Ross, proof of that.
The delegation has apparently put an effective end to any plan to reinstate the weapons ban. Ross said that both Holder and President Barack Obama have issued statements to that effect.
“I think we got their attention,” Ross said. “If they do (make an attempt at gun control laws), I’ll be there in force.”
ANATOMY OF A LAWSUIT: District of Columbia v. Heller By Robert A. Levy * Senior fellow in constitutional studies at the Cato Institute, co-counsel to Mr. Heller Engage: The Journal of the Federalist Society Practice Groups Volume 9, Issue 3 October, 2008 Taken from a pdf copy
It took nearly 5-1/2 years of litigation, a feckless 32-year handgun ban in the nation’s capital, and a 69-year old Supreme Court case, muddled and misinterpreted by appellate courts across the country. At the end, on June 26, 2008, by a 5-4 vote, the Supreme Court proclaimed unequivocally that the Second Amendment secured an individual right to keep and bear arms for self-defense. That was the holding in District of Columbia v. Heller, the most important Second Amendment case in U.S. history. Here’s how it happened: the legal team, the timing, the plaintiffs, the location, the role of the National Rifle Association, and how the Justice Department nearly undermined our efforts.
THE LEGAL TEAM
Late in 2002 I was approached by Clark Neily, an attorney at the Institute for Justice (IJ), where I serve on the board of directors. Although decades apart in age (he’s 40, I’m 66), Clark and I maintain a close friendship after clerking together on the federal courts. We also share a political philosophy centering on strictly limited government and expansive individual liberties. Clark and his colleague at IJ, Steve Simpson, had decided the time was right to file a Second Amendment challenge to Washington D.C.’s handgun ban. I was asked to become a member of the legal team, explore the prospects for a lawsuit, help with preliminary research, and provide funding.
At roughly the same time, I came in contact with Dane Von Breichenruchardt, who heads the Bill of Rights Foundation. Dane introduced me to Dick Heller, a private police officer who believed strongly in Second Amendment rights and wanted to challenge D.C.’s gun laws. Dick became our sole surviving plaintiff —about which more in a moment. Persuaded by Clark’s and Steve’s preliminary legal analyses, and heartened by Dick’s enthusiasm, I agreed to sign on, and then convinced my Cato Institute associate, Gene Healy, to join us.
After our team of lawyers completed a more detailed review of the legal landscape, we resolved to move ahead. Clark and Steve had provided the strategic insight, but Steve was not able to participate in the litigation because of his duties at IJ. And because Clark, Gene, and I were busily engaged on other projects, we set out to hire an outside lawyer to serve as lead counsel. , at position was filled by Alan Gura, 37, a private attorney in the DC area who had been a law clerk at IJ. , us, four of the fi ve original attorneys had ties to IJ; two attorneys had ties to Cato, as did one of the plaintiff s (Cato vice president, Tom Palmer).
Neither organization was directly involved in the litigation, but both supported the lawsuit and fi led amicus (friend-of-the court) briefs. Indeed, Justice Antonin Scalia cited IJ’s brief favorably in his Heller majority opinion. Equally important, Cato and IJ provided extensive help with media relations — supervised by John Kramer, IJ’s consummate communications expert. And perhaps most important, the Heller lawsuit had an IJ imprint from the outset. Fashioned as a public interest lawsuit, Heller required sympathetic clients, a media-savvy approach, and strategic lawyering—in short, the same characteristics that had brought IJ before the Supreme Court three times in the past six years, in cases involving eminent domain, interstate wine shipments, and school choice.
After we filed the lawsuit in February 2003, Gene Healy was called away by the press of other business. That left a three-man team—Alan Gura, Clark Neily, and I—which remained intact throughout the litigation. And therein lies an interesting sidebar: I had no prior litigation experience, much less a case before the Supreme Court. Clark was an experienced and talented trial and appellate litigator, but he too had no Supreme Court experience. Ditto for Alan, who, as lead counsel, had primary responsibility for crafting the briefs and arguing our case before three courts, including the Supreme Court. Not surprisingly, when the Supreme Court agreed to review Heller, I was besieged with advice from concerned allies to have a Supreme Court superstar argue the case. I was warned that someone like Ted Olson or Ken Starr was needed to go up against former solicitor general Walter Dellinger, who had agreed to argue on behalf of the city.
I rejected that advice, for several reasons: First, Alan had piloted our winning effort before the U.S. Court of Appeals for the District of Columbia Circuit. That was no small accomplishment—the fi rst ever federal appellate decision to overturn a gun control regulation on Second Amendment grounds. Second, Alan had immersed himself in gun-related issues over more than five years. He knew the material cold, whereas a new attorney—even a superstar—would have a short, steep learning curve. Third, and most important, Alan had agreed to work on Heller for subsistence wages. He had made significant professional and financial sacrifices, in return for which I had committed to him that he would carry the ball, however far the case advanced. In the end, I was not willing to renege on that commitment. Clark fully supported that decision.
THE TIMING
Looking back, fair-minded observers on both sides of the case acknowledge that our legal team—outmanned, out-financed, and inexperienced—performed commendably, capped by Alan’s confident and persuasive oral argument before the Supreme Court. Our victory evolved over more than a half-decade, beginning with our first court submission in early 2003. Why, though, did we file at that time—three decades after enactment of the D.C. gun ban; seven decades after the Supreme Court’s decision in United States v. Miller?
Three triggering events precipitated the litigation. First, there was an outpouring of scholarship on the Second Amendment, and some of it came from self-identified liberals 28! Engage Vol. 9, Issue 3 who concluded that the Amendment secured an individual, not a collective, right. Harvard’s Alan Dershowitz, a former American Civil Liberties Union board member, says he “hates” guns and wants the Second Amendment repealed. But he has condemned “foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right…. They’re courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.” Harvard’s Laurence Tribe, another respected liberal scholar, and Yale’s professor Akhil Amar both recognize that there is an individual right to keep and bear arms, albeit limited by what they call “reasonable regulation in the interest of public safety.”
In that respect, Tribe and Amar agree with advocates for gun-owners’ rights on two fundamental issues: (1) the Second Amendment confi rms an individual rather than a collective right; and (2) that right is not absolute; it is subject to regulation. To the extent there was disagreement, it hinged on what constitutes permissible regulation—that is, where to draw the line. It was apparent to us that D.C.’s ban fell on the impermissible side of that line.
The second triggering event was a 2001 decision by the U.S. Court of Appeals for the Fifth Circuit in United States v. Emerson. The Fifth Circuit was bound by the Supreme Court’s Miller precedent, but concluded that Miller upheld neither the individual rights model of the Second Amendment nor the collective rights model. Miller decided simply that a sawed-off shotgun was not self-evidently the type of weapon that was protected. But the Fifth Circuit went further. It held that the Constitution “protects the right of individuals, including those not then actually a member of any militia… to privately possess and bear their own firearms… suitable as personal individual weapons.”
That right is not absolute, said the appellate court. Killers do not have a constitutional right to possess weapons of mass destruction. Some persons and some weapons may be restricted. Indeed, the court held that Dr. Timothy Joe Emerson’s individual right under the Second Amendment could be temporarily curtailed because there was reason to believe he might have posed a threat to his estranged wife. But setting Emerson’s personal situation aside, the Fifth Circuit—alone in 2001 among all the federal appellate courts that tried to make sense of Miller’s elusive logic—subscribed to the individual rights model of the Second Amendment.
The Supreme Court declined to review Emerson. Although the Fifth Circuit’s interpretation of the Second Amendment differed fundamentally from the interpretation of all other federal appellate courts, the high Court sidestepped the question—probably because Dr. Emerson had lost. In the end, the Fifth Circuit upheld the federal statute at issue in Emerson. , at meant the statute was still good law in all U.S. jurisdictions. So the Supreme Court had no practical or pressing need at that time to resolve the Second Amendment debate.
The third triggering event was an unambiguous pronouncement on the Second Amendment from the Justice Department under former U.S. Attorney General John Ashcroft. First, in a letter to the NRA, he reaffi rmed his long-held belief that all law-abiding citizens have an individual right to keep and bear arms. Ashcroft’s letter was supported by 18 state attorneys general, including six Democrats. , e letter was followed by a Justice Department brief fi led in opposition to Supreme Court review of the Emerson case. Despite opposing Supreme Court review, the Justice Department expressly argued, for the first time in a formal court submission, against the collective rights position. Later, in 2004, the Justice Department affirmed its view of the Second Amendment in an extended and scholarly staff memorandum opinion prepared for the Attorney General. The opinion concluded that “[t]he Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.”
THE PLAINTIFFS
Having decided that the timing was ripe, we turned next to the selection of plaintiff s. One of the disadvantages of public interest law is that the clients do not pay. One of the major advantages, however, is that we could be very selective in our choice of issues and, especially, plaintiff s. For starters, we knew that the case would unfold not only in the courtroom but in the court of public opinion. Accordingly, we needed plaintiff s who would project favorably and be able to communicate with the media and the public. Ideally, they should be diverse—by gender, race, profession, income, and age. , ey should believe fervently but not fanatically in Second Amendment rights, fear for their safety within their homes, and have need of a loaded weapon for self-defense. Naturally, we wanted law-abiding, responsible citizens, with no criminal record, but a compelling story to tell.
In satisfying those criteria, we exhausted our contacts in the legal community, looked for names in newspaper articles and letters to the editor, spoke to friends and friends of friends, considered dozens of preliminary prospects, interviewed a smaller number, and settled fi nally on six. The plaintiff s comprised three men and three women, ranging in age from their mid-twenties to their early sixties. Four were white; two were African-American.
The lead plaintiff , Shelly Parker, was a neighborhood activist who lived in a high-crime area in the heart of the city. Drug dealers and addicts harassed residents of her block relentlessly. Ms. Parker decided to do something about it. She called the police—to no avail, time and again—then encouraged her neighbors to do the same. She organized block meetings to discuss the problem. For her audacity, Shelly Parker was labeled as a troublemaker by the dealers, who threatened her at every opportunity. Shortly before we fi led the case, a dealer tried to break into her house, cursing and yelling, “Bitch, I’ll kill you. I live on this block, too.” He was charged with felony threat but acquitted. Shelly Parker knew that the police wouldn’t do much about the drug problem on her block. She wanted a functional handgun within her home for self-defense; but she feared arrest and prosecution because of D.C.’s unconstitutional gun ban.
A second plaintiff, Dick Heller, was a special police officer who carried a handgun every day to provide security for a federal offi ce building, the Thurgood Marshall Judicial Center. But when he applied for permission to possess that handgun within his home, to defend his own household, the D.C. government turned him down. Among the other plaintiff's was a gay man assaulted in California on account of his sexual orientation. While walking to dinner with a co-worker, he encountered a group of young thugs yelling “faggot,” “homo,” “queer,” “we’re going to kill you and they’ll never find your bodies.” He pulled his handgun—which his mother had given him, anticipating just such a need—out of his backpack and his assailants retreated. He could not have done that in Washington, D.C.—not even if the assailants had entered his home.
Originally, the case was captioned Parker v. District of Columbia—named after our lead plaintiff , Shelly Parker. That changed when fi ve of our six plaintiff s, including Parker, were dismissed for lack of legal standing. Only Dick Heller remained. From that point forward, his name was substituted for Shelly Parker’s.
“Standing” is a complex doctrine requiring that plaintiff's demonstrate that they have suff ered a “redressable injury” before they can have their lawsuit heard by a court. In this instance, only Dick Heller had applied to register a firearm and been rejected by the District. , e denial of Heller’s application was his injury. By contrast, the other plaintiff s had not tried either to register a weapon or obtain a license. Instead, they had simply declared their desire to have a loaded fi rearm in their homes, and then claimed that D.C.’s gun laws frustrated that goal. The court, applying the District’s unique standing doctrine, noted that the plaintiff s had not actually broken any law. According to the court, their risk of prosecution was not sufficiently credible or imminent to constitute injury. Hence, no standing for fi ve of six plaintiffs.
In D.C., law-abiding citizens who have not applied for registration cannot challenge the city’s gun laws; that privilege is reserved to law-breaking citizens. Responsible plaintiff s are barred from court; only criminals can sue. Nor is it possible for most would-be plaintiff s in D.C. to follow Heller’s example and apply for registration. In that respect, D.C.’s rules are the ultimate Catch-22. No one can register an imaginary handgun; he or she must own one to register it. But from 1976 until now, it has been illegal to buy a handgun in Washington, D.C. And federal law says it’s illegal to buy a handgun anywhere except the state in which the buyer resides. , us, to obtain standing today, a D.C. resident would have to move out of D.C., buy a gun, move back to D.C. with proof of ownership, and then apply for registration.
As for Heller, he had legally acquired a handgun years ago. He could not keep the gun in his D.C. home, but he did have the paperwork to prove the weapon was his. Dane Von Breichenruchardt, who had introduced Heller to us, prevailed on Heller to apply for registration in July 2002, seven months before we filed the lawsuit. When we became aware that Heller had followed Dane’s advice and registration had been denied, we included a statement to that eff ect in our complaint and, later, an affi davit from Heller as well as a copy of his rejected application. Those documents proved suffi cient to confer standing on Heller. Technically, because we were not seeking monetary damages for each client, one plaintiff was all we needed to stop D.C. from enforcing its unconstitutional gun ban. But the five other plaintiff s were sorely disappointed.
Consequently, we asked the Supreme Court to restore standing to our five dismissed plaintiff s. Without explanation, however, the Court refused to review D.C.’s standing doctrine. Here’s what that means: nearly everywhere in the country, except in the nation’s capital, courts do not require citizens first to violate a law in order to contest its constitutionality. Yet, when it comes to restrictions on fi rearms ownership, D.C. says that a threat of enforcement is not suffi cient to confer standing. The plaintiff s in our case were specifi cally threatened with prosecution by D.C. offi cials—in open court, in newspaper interviews, and in a town meeting. Still, no standing.
Moreover, fear of enforcement—even without threats— causes people to refrain from doing what they would otherwise do. If a person could show he would have acquired a handgun, but did not out of concern that he would be prosecuted, then he has suff ered the type of injury that is classic in pre-enforcement suits. Consider, for example, an abortion or First Amendment case. Would a pregnant woman have to be charged for having an illegal abortion before she could assert standing to challenge a restrictive law? If a shop owner wants to test a statute banning storefront political posters, does he first have to display the poster and risk punishment? Not even D.C. would impose such impediments to raising those constitutional claims. Evidently, however, the Second Amendment is diff erent. When it comes to keeping arms for self-defense, D.C.’s shameful message is: “If you want to challenge the law, first you have to break it.”
THE LOCATION
Even though we were unable to obtain standing for five plaintiff s under D.C.’s prohibitive rules, the nation’s capital was still the best venue to file our lawsuit. First, the city’s rate of gun violence was, and is, among the highest in the nation. Second, D.C. had the most restrictive gun laws of any major city—in fact, the most sweeping gun laws in the history of the country. Essentially, all handguns acquired after 1976 were banned; no handguns acquired before 1976 could be carried anywhere—even from room to room in a person’s own home—without a permit, which in practice was never issued; and all rifles and shotguns in the home had to be unloaded and either disassembled or trigger-locked.
Because of D.C.’s draconian regulations, we were able to pursue an “incremental” Second Amendment strategy— analogous to the strategy that Thurgood Marshall and the NAACP had pursued with great success in the civil rights arena. That meant: (1) seek only narrow relief—i.e., don’t ask the Court, in its fi rst Second Amendment case since 1939, for permission to carry concealed weapons in public or to own a machine gun; (2) focus solely on the Second Amendment—no statutory issues or other constitutional issues that might distract the Court; and (3) challenge only the worst provisions of DC law—a ban on all functional firearms in all homes of all people at all times for all purposes—thereby negating the city’s claim that its regulations are “reasonable.”
Our third reason for selecting D.C. involved the legal question of “incorporation.” Until the Fourteenth Amendment was ratifi ed in 1868, the Bill of Rights applied only against the 30! Engage Vol. 9, Issue 3 federal government. Unlike most of the other Ten Amendments, which have now been “incorporated” against the states by means of the Fourteenth Amendment, the applicability of the Second Amendment to the states has not been resolved. By filing our Second Amendment challenge in Washington, D.C., we did not have to address that issue. , e U.S. Congress, not a state, is constitutionally empowered “To exercise exclusive Legislation in all Cases whatsoever” over the nation’s capital—which means the Bill of Rights directly limits Washington, D.C., laws.
Fourth, D.C. is where the federal government lives. That means Second Amendment claims against the federal government can be litigated in D.C., no matter where a rights violation allegedly occurred. It’s always proper to sue a defendant where the defendant resides. In that respect, D.C. was clearly the most important of all the judicial circuits. A victory in D.C. would alter Second Amendment jurisprudence not only for cases arising under D.C. law, but for all cases arising under federal law as well—no matter where the claim initially surfaced. Moreover, the U.S. Justice Department, which defends federal statutes against Second Amendment claims, was already on record as supporting an individual right to keep and bear arms.
Finally, the U.S. Court of Appeals for the District of Columbia Circuit was the only federal appellate court that had not yet fleshed out its view of the Second Amendment. In order to reach the Supreme Court—which was our principal objective—we had to create a split of authority among the appellate circuits that only the Supreme Court could resolve. Inconsistent federal law from circuit-to-circuit is typically the single most important criterion in persuading the high Court to accept a case for review. All of the other federal appellate courts had disallowed Second Amendment challenges to gun control regulations. Only in D.C. did we have a chance of convincing a federal appellate court, for the fi rst time, to declare a gun regulation unconstitutional.
THE ROLE OF THE NRA
With our legal team in place, the right timing, great clients, and the perfect venue, all we needed was a few dollars to cover litigation costs. , at’s an area where I was able to help—with generous assistance from Clark, who received no compensation, and Alan, who received next-to-no compensation. Other gun-rights advocates and organizations had off ered fi nancial aid. But we didn’t want the case portrayed as litigation that the gun community was sponsoring. First and foremost, our interest was to ensure that the D.C. government complied with the text, purpose, structure, and history of the Second Amendment. For us, Heller was about the Constitution; guns merely provided context.
Another advantage in funding the lawsuit ourselves was the ability to retain complete control over plaintiff selection, legal arguments, and litigation strategy. , at did not mean we ignored potential alliances with groups like the NRA. Indeed, when we fi rst considered fi ling a lawsuit, we notifi ed the NRA and sought input from its Second Amendment specialists. To our surprise, the NRA advised us not to proceed. , e NRA’s stated concern was that the case might be good enough to win at the appellate level, but would not be victorious before a lessthan- hospitable Supreme Court. As a result, we could win the battle, but lose the war.
We declined the NRA’s advice for a number of reasons. First, and most important from our perspective, the Fifth Circuit’s 2001 Emerson decision had prompted criminal defense attorneys nationwide to raise Second Amendment defenses to gun charges. We feared that one of those cases would eventually make its way to the Supreme Court, resulting in an accused murderer or drug dealer becoming the poster child for the Second Amendment. Second, the Court looked more favorable from a Second Amendment perspective than it had looked in some time. And with a Republican president fi lling vacancies, we thought the Court’s composition might even improve by the time our case wound its way up. (In fact, it did.) , ird, the gun controllers had more to lose than we did. Federal appeals courts covering 47 states had denied that the Second Amendment protected a private, individual right. Those decisions could be no worse even if we lost in the Supreme Court. On the fl ip side, 44 states had their own statutory or constitutional provisions protecting an individual right to bear arms, and 48 states allowed concealed carry with varying degrees of police discretion. None of those laws rested on the Second Amendment, so they too would be unaff ected if the Supremes did the wrong thing. Fourth, we had the support—or so we thought—of the Department of Justice, which could easily change its view under a more liberal administration.
Accordingly, we went forward despite the NRA’s opposition. Two months later, evidently not wishing to remain on the sidelines, the NRA sponsored a copycat suit, Seegars v. Ashcroft (later Gonzales), in the same court, raising many of the same issues and asking virtually the same relief. , e NRA then filed a motion to consolidate its case with ours—a none-toosubtle attempt to take control of the litigation. Of course, we opposed that motion, and after three months of legal wrangling, we won: the suits were not consolidated. , at was good news. But now there were two diff erent Second Amendment suits moving through D.C.’s federal courts on parallel tracks—one of which was wholly unnecessary and, as we shall see, legally weaker.
By chance, the NRA’s suit—fi led months after ours and assigned to a different judge—was decided first. The NRA lost, then appealed to the U.S. Court of Appeals in D.C. We too lost at the trial court level, and appealed shortly thereafter. But the NRA litigation had reached the appellate court before ours, so the court put our case on hold pending the outcome of the NRA appeal, which seemed likely to dictate the outcome of our appeal as well. At that point the NRA had accomplished its objective: it had taken control of the litigation.
That was not to last very long. , e NRA had—mistakenly, in our view—sued not only the city of Washington, D.C., but also the Justice Department. And it was the Justice Department, not the city, which raised a standing defense to the NRA lawsuit. As noted above, plaintiff s are required to demonstrate concrete injury in order to fi le suit. Pursuant to the D.C. Circuit’s idiosyncratic Second Amendment standing doctrine, it’s not enough for a plaintiff to assert an interest in owning a prohibited gun. Instead, the would-be plaintiff must actually apply to register a forbidden weapon, and then be denied by the city. Unlike Mr. Heller in our case, none of the NRA’s Seegars plaintiff s had submitted the requisite application. All were dismissed by the court of appeals for lack of standing. And because the Seegars decision never addressed the underlying Second Amendment question, our case was allowed to go forward.
We hoped that would be the end of our problems with the NRA. Unfortunately, it was not. The NRA’s next step was to renew its lobbying effort in Congress to repeal the D.C. gun ban. Ordinarily that would have been a good thing, but not this time. Repealing D.C.’s ban would have rendered the Heller litigation moot. After all, no one can challenge a law that no longer exists. And of course Heller was a much better vehicle to vindicate Second Amendment rights than an act of Congress. Among other things, legislative repeal of the D.C. ban could simply be reversed by the next liberal Congress. Nor would repeal of D.C.’s ban have any impact on the raft of criminal cases fi led in other jurisdictions. Any one of those cases might reach the Supreme Court and become the vehicle for reading the Second Amendment out of the Constitution. By contrast, a foursquare pronouncement from the Supreme Court upholding a challenge by law-abiding citizens in Heller would establish lasting precedent and eventually have significance in all 50 states.
After expending considerable time and energy in the halls of Congress, we were able, with help, to frustrate congressional consideration of the NRA-sponsored bill. By that time, the NRA had apparently decided the political climate was not right for legislative repeal. Therefore, we were told, the NRA would put repeal on the backburner and support our lawsuit. Happily, that promise was kept. Once committed, the NRA was a valued ally in the Supreme Court phase of our case—garnering support from the gun rights community, crafting amicus briefs, and joining our battle against a Justice Department that we thought was on our side.
HOW THE JUSTICE DEPARTMENT NEARLY UNDERMINED OUR EFFORTS
Incredibly, there were 67 amicus briefs fi led with the Supreme Court in the Heller case—47 for us, 19 for the city, and 1 supposedly split brief from the Justice Department. , at’s not a record, but it’s very close to the top. (All of the briefs, along with other Court fi lings and articles, are posted on our website, www.dcguncase. com, which has developed into a leading repository of scholarship on the Second Amendment.) Many of the briefs, too numerous to mention by name, were enormously helpful. But potentially the most unhelpful—and perhaps the most surprising—was the brief fi led by Solicitor General Paul Clement for the Justice Department.
The Department’s announced position under Attorney General John Ashcroft was that “the Second Amendment secures a right of individuals” not restricted to militia service. Without abandoning that principle altogether, the Bush Justice Department under Attorney General Michael Mukasey significantly diluted it by recommending an elastic standard for determining whether a handgun ban is permissible. How elastic? The SG’s brief urged the courts to consider “the nature and functional adequacy of available alternatives” to banned firearms. Imagine, in a First Amendment context, advising courts to weigh the “functional adequacy” of magazines in a city that banned all newspapers. To implement its toothless standard, the SG proposed that Heller be remanded to the lower courts, which would engage in “appropriate fact finding” to determine whether DC’s gun ban—the most far-reaching on American soil since the British disarmed the colonists in Boston—passed constitutional muster.
That came as quite a shock to those of us who believed the administration’s professed allegiance to gun owners’ rights. What we got instead was a recommendation that could have been the death knell for the only Second Amendment case to reach the Supreme Court in nearly 70 years. Rather than a definitive statement that the D.C. handgun ban is unreasonable by any standard, the Justice Department suggested a course that would have entailed years of depositions and expert testimony, followed by an eventual return to a Supreme Court that could well have grown more hostile during the intervening years. That possibility could not have been overlooked by the savvy Justice Department lawyers who crafted the strategy. In effect, a so-called conservative administration threw a lifeline to gun controllers—paying lip service to an individual right while simultaneously stripping it of any real meaning. After all, if the D.C. ban could survive judicial scrutiny, it is difficult to envision a regulation that would not.
Supporters of the Constitution could only hope that the Supreme Court would embrace an individual rights view of the Second Amendment while rejecting the notion that D.C. could treat the Amendment as if it did not exist. Lamentably, when the time came to take sides in this long-simmering debate, the Bush administration—supposed proponent of gun rights and devotee of the Constitution—stood for a watered-down version of the Second Amendment that refused to declare a categorical ban on all functional fi rearms within the home “unreasonable,” and argued that such a ban might even be consistent with a right to keep and bear arms that the Constitution says “shall not be infringed.”
Thankfully, waiting in the wings was the NRA. With organizational skills and political connections, the NRA was able to gather support for a congressional amicus brief. It was signed by 250 members of the House of Representatives, including 68 Democrats; by 55 members of the Senate, including 9 Democrats; and by Dick Cheney, not as vice president, but in his capacity as president of the Senate. It was a remarkably powerful demonstration that the political branches—and derivatively, the people—were on our side, notwithstanding the administration’s bewildering and pernicious brief.
The rest is history. On June 26, 2008, the highest Court in the land revived the Second Amendment and set the stage for nationwide reclamation of the right celebrated during the Framing era as “the true palladium of liberty.
* Robert A. Levy is senior fellow in constitutional studies at the Cato Institute, co-counsel to Mr. Heller, and co-author of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, reviewed at the end of this issue.
"The District's ban on semiautomatic handguns amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for the lawful purpose of self defense in the home."
-"Heller II" lawsuit "I feel comfortable with what the city has done." -Peter Nickles D.C. interim Attorney General
The plaintiff in the Supreme Court case that struck down Washington, D.C.'s 32-year-old handgun ban filed a new federal lawsuit Monday, alleging the city's new gun regulations still violate an individual's right to own a gun for self-defense.
Dick Heller and two other plaintiffs argue that the city's regulations are "highly unusual and unreasonable" in the complaint filed in U.S. District Court.
The lawsuit claims the District of Columbia continues to violate the intent of the Supreme Court's June 26 decision by pr! ohibitin g the ownership of most semiautomatic weapons, requiring an "arbitrary" fee to register a firearm and establishing rules that make it all but impossible for residents to keep a gun in the home for immediate self-defense.
The D.C. Council was immediately criticized by gun rights advocates when it unanimously passed emergency gun legislation July 15. The law will remain in effect for 90 days, and the council expects to begin work in September on permanent legislation.
The regulations maintain the city's ban of machine guns, defined in the law as weapons that shoot more than 12 rounds without reloading. That definition applies to most semiautomatic firearms.
Handguns, as well as other legal firearms such as rifles and shotguns, also must be kept unloaded and disassembled, or equipped with trigger locks in the home unless there is a "reasonably perceived threat of immediate harm."
"A robber basically has to make an appointment" for a resident to be able to prepare the weapon for use, Heller's attorney, Stephen Halbrook, said Monday. Halbrook also called the city's definition of machine guns "bizarre."
"The District's ban on semiautomatic handguns amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for the lawful purpose of self defense in the home," the lawsuit alleges.
D.C. interim Attorney General Peter Nickles said the suit came as no surprise and that he expects a long legal fight as the issue makes it way through the courts.
"I think there's a fundamental disagreement with the intent of the Supreme Court's decision," said Nickles, noting that the Supreme Court's ruling did not give officials much guidance with respect to regulating firearms.
"I feel comfortable with what the city has done," Nickles said.
After the Supreme Court narrowly struck down Washington's handgun ban last month in a narrow 5-4 decision, the D.C. Cou! ncil qui ckly moved to comply with the ruling, and residents were allowed to begin applying for handguns July 17 for the first time since 1976.
Monday's lawsuit alleges that Heller initially tried to register a semiautomatic Colt pistol, but was denied because D.C. police considered the weapon to be a machine gun.
Besides Heller, the other plaintiffs are Absalom Jordan, whose application to register a .22-caliber pistol was denied, and Amy McVey, who must return to D.C. police headquarters two more times to register her weapon after being photographed and fingerprinted and undergoing a background check, according to the lawsuit.
Washington's gun ban essentially outlawed private ownership of handguns in a city struggling with violence. But what impact the ban has had on crime has long been debated, particularly after homicides more than doubled during a crack epidemic in the late 1980s and early '90s.
The city's gun regulations remain among the strictest in the country under the new regulations, according to the Brady Campaign to Prevent Gun Violence.
Monday, July 28, 2008
In open defiance of the Supreme Court's decision striking down the Washington D.C. gun control law, the City Council passed an "emergency" law that keeps in place almost all of the law that was ruled unconstitutional.
For example, though the Court ruled specifically that the city's ban on handguns violated the Second Amendment, most handguns still cannot be registered because D.C. bureaucrats classify semi-automatic pistols as "machine guns."
Even Dick Heller, who brought the case against Washington's gun ban, was rejected when he tried to register his handgun because any "bottom loading" firearm is a "machine gun" according to the D.C. police.
Similarly, while the Court found that "the requirement that any lawful firearm in the home be disassembled or bound by a "trigger lock" is unconstitutional, the city kept in place the "lock up your safety" law unless the resident is in immediate danger.
The D.C. Council is thus rendering the Supreme Court victory for gun rights meaningless, while leaving residents defenseless.
Congress needs to repeal the District's gun control law to ensure that the Supreme Court decision is not a hollow victory.
According to Article I, Section 8 of the U.S. Constitution, Congress has the authority and responsibility to govern the District. It can simply repeal the District's onerous gun law.
Not surprisingly, however, House Speaker Nancy Pelosi (D-CA) has no intention of allowing the D.C. gun ban repeal legislation to come to the floor, even though it is cosponsored by more than half of the members of Congress.
To free the bill from the Speaker's death grip, Representative Mark Souder (R-IN) has filed a discharge petition to bring the bill directly to the floor. Rep. Souder needs 218 cosigners for the petition to be successful. There are currently 109 signers.
There are not many days left in this legislative session, so it is vital that the discharge petition moves quickly. Please contact your representative and urge him or her to support the repeal of the D.C. gun ban and to sign the Souder discharge petition. You can visit the Gun Owners Legislative Action Center at http://www.gunowners.org/activism.htm to send your Reps. the pre-written e-mail message below.
----- Pre-written letter -----
Dear Representative,
The Washington, D.C. city council is making a mockery of the recent Supreme Court decision supporting the individual right to keep and bear arms.
Though the Court ruled the city's handgun ban unconstitutional, DC is still making it illegal to own most handguns. The Court also ruled that the District's gun lock and gun storage law violates the Constitution, but under the city's new "emergency" gun law, firearms must be kept inoperable unless there is an immediate danger to residents.
Representative Mark Souder has filed a discharge petition to bring a bill to repeal the District's gun laws to the floor for a vote.
Please stand up for the Second Amendment and sign the Souder discharge petition.
Last month the U.S. Supreme Court ruled that the District of Columbia had violated the Second Amendment by making armed self-defense in the home impractical and banning the most popular weapons used for that purpose. Last week the D.C. Council responded by unanimously approving a law that makes armed self-defense in the home impractical and bans the most popular weapons used for that purpose.
D.C.'s political leaders know they are inviting another Second Amendment lawsuit, but they are determined to defy the Supreme Court and the Constitution for as long as possible.
The new law "clarifies that no carry license is required inside the home" to move a gun from one room to another. It also "clarifies" the District's firearm storage requirements, saying a gun may be unlocked and loaded "while it is being used to protect against a reasonably perceived threat of immediate harm to a person" in the home.
Much hinges on what counts as a "reasonably perceived threat." If you're awakened in the middle of the night by a crash, may you carry a gun with you as you investigate? Evidently not. The Washington Post reports that D.C.'s acting attorney general, Peter Nickles, "said residents could neither keep their guns loaded in anticipation of a problem nor search for an intruder on their property." According to Mr. Nickles, if you see an armed criminal charging your home, or in the event of "an actual threat by somebody you believe is out to hurt you," you're allowed to get your gun, unlock it and load it.
How long will that take? The new law lets people use a gun safe instead of a trigger lock, which, depending on the type of safe, could allow faster retrieval. But even a gun in a safe has to be kept unloaded, which will tend to slow the owner's response in the face of a "reasonably perceived threat," assuming he can figure out what that means.
The delay will be even longer because of the District's ridiculously broad ban on "machine guns." The Metropolitan Police Department says the ban covers all handguns except revolvers, which are more cumbersome to load than semiautomatics with detachable magazines.
Under D.C. law, "machine guns" include not only guns that fire continuously but also guns that fire once per trigger pull if they can fire more than 12 rounds without reloading or "can be readily converted" to do so. According to the District's interpretation, even a pistol that fires 12 or fewer rounds counts as a "machine gun" if it could accept a bigger magazine.
That's why Dick Heller, the man who successfully challenged D.C.'s handgun ban, was not allowed to register his seven-shot .45-caliber pistol, which in the District's view might as well be an Uzi. Instead he applied to register a .22-caliber revolver.
Speaking of registration, the District has established a burdensome 12-step process that involves multiple trips to gun dealers and government offices, fingerprinting, a written exam and ballistic testing. How long does all this take? "Up to 14 days," according to one police department publication. "Approximately eight weeks," according to another. "There are circumstances where it could take months," says Police Chief Cathy Lanier.
Registration easily could turn out to be so onerous or capricious that it effectively denies D.C. residents the right to keep and bear arms. The District's revised firearm storage requirements are even more clearly unconstitutional, since they unreasonably interfere with the very function, self-defense in the home, that the Supreme Court said is protected by the Second Amendment. Likewise the arbitrary ban on semiautomatic handguns, the most commonly used self-defense weapons.
"I am pretty confident that the people of the District of Columbia want me to err in the direction of trying to restrict guns," D.C. Mayor Adrian Fenty told Marc Fisher, columnist for The Washington Post. How about erring, just this once, in the direction of respecting civil liberties?
acob Sullum is a nationally syndicated columnist.
WASHINGTON (WUSA) -- District residents can start registering their guns today. But at least one very high profile application was already rejected.
Dick Heller is the man who brought the lawsuit against the District's 32-year-old ban on handguns. He was among the first in line Thursday morning to apply for a handgun permit.
But when he tried to register his semi-automatic weapon, he says he was rejected. He says his gun has seven bullet clip. Heller says the City Council legislation allows weapons with fewer than eleven bullets in the clip. A spokesman for the DC Police says the gun was a bottom-loading weapon, and according to their interpretation, all bottom-loading guns are outlawed because they are grouped with machine guns.
Besides obtaining paperwork to buy new handguns, residents also can register firearms they've had illegally under a 180-day amnesty period.
Though residents will be allowed to begin applying for handgun permits, city officials have said the entire process could take weeks or months.
CLICK HERE to get more information from the Metropolitan Police Department's webiste.
D.C. Mayor Adrian Fenty and his feisty attorney general, Peter Nickles, stood on the steps of the Wilson Building this week ostensibly to announce how the city will comply with the U.S. Supreme Court's rejection of Washington's ban on handguns. But really, they were delivering very much the opposite message: With only the narrowest of exceptions, we're sticking with our gun ban. Don't like it? Sue us.
"I am pretty confident that the people of the District of Columbia want us to err in the direction of trying to restrict guns," Fenty told me, smiling broadly at the suggestion that what he's really trying to do is make it as hard as possible for Washingtonians to keep a loaded gun at home.
Fenty and Nickles reject any interpretation of the Supreme Court decision as a clear statement that Americans may, with very few exceptions, keep and bear what Justice Antonin Scalia called "the quintessential self-defense weapon," the handgun. Rather, the D.C. officials read the decision as an almost academic ruling that although there may be a constitutional right to bear arms to protect yourself, that right is pretty much limited to folks whose house is being broken into right this very second.
The Court ruled that there is "no doubt" that "the Second Amendment conferred an individual right to keep and bear arms." But Nickles said "it's clear the Supreme Court didn't intend for you to have a loaded gun around the house. I don't think the court thought this was going to become a Wild West scene."
So the mayor and the D.C. Council are enacting emergency law setting up a cumbersome mechanism by which someone who wants to own a gun legally may register a weapon if they clear a background check, pass a vision test and a written test of gun safety knowledge, pay a fee and wait for the bureaucracy to push through all these steps. "There are circumstances where it could take months," Police Chief Cathy Lanier conceded, and you could almost hear the elected officials around her emitting "heh-hehs" of mischievous delight.
Even then, D.C. gun owners would be prohibited from keeping their gun loaded unless they could demonstrate that the firearm is "being used against a reasonably perceived threat of immediate harm."
What does that mean? "Somebody's approaching your home," Nickles offered. Or "an actual threat by somebody you believe is out to hurt you."
How about if there's been a break-in next door? That's close, the attorney general said.
The District is rejecting the most common reading of the court's 5-4 ruling, the idea that although government is permitted to regulate access to guns -- barring, for example, felons and the mentally ill -- Americans have the right to arm themselves against any threat, basically however they may define it.
"I don't think they intended that anybody who had a vague notion of a threat should have access to a gun," Fenty told me.
The District is out to prove that the Supreme Court's is not the last word. In truth, on the most divisive constitutional questions, the court only reframes the nation's debate. Scalia's majority opinion deliberately avoided getting into the particulars of the D.C. gun regulation scheme -- an engraved invitation to all parties to flood the courts with litigation.
Judging from opinion surveys over the years, Fenty is surely right that D.C. residents would like to restore their old gun ban. But these matters are not decided by plebiscite. Even if city lawyers believe there's a smidgeon of a chance that some court might let the District impose singularly tight restrictions on the right to bear arms, the course of this last lawsuit demonstrates that, ultimately, the city would lose.
But those on both sides who relish the prospect of years and years of litigation are not likely to have such fun. Congress, still reveling over its latest stomp on any stirrings of democracy in the District, is gearing up for another go. If they can impose a new fare system on the city's taxicabs, the lords of the Hill will think nothing of nullifying whatever gun regulations Fenty and the council create.
Already, members of Congress are pumping out news releases and lining up cable talk spots so they can present themselves in an election year as saviors of Americans' gun rights. With Republicans smelling blood and Democrats quivering in the corner over the possibility that they might be portrayed as soft on gun rights, this is yet another issue that will end up as a reminder that democracy and the District are wholly separate concepts.
Fenty and the council put on a nice show of defiance, but in the end, Congress will demonstrate once again just how little say Washington residents have in their own governance.
ask you all to call the Chief?s office, write a letter or email and let her know just how you feel about her memo.
The following is a memo sent to Washington, DC residents by Cathy Lanier, Washington, DC Chief of Police:
Unfortunately, the Supreme Court today struck down part of the District of Columbia's handgun ban. I wanted to drop you a note to let you know the immediate impact of this decision.
The Supreme Court's ruling is limited and leaves intact various other laws that apply to private residents who would purchase handguns or other firearms for home possession. It is important that everyone know that:
a.. First, all firearms must be registered with the Metropolitan Police Department's Firearms Registration Section before they may be lawfully possessed. a.. Second, automatic and semiautomatic handguns generally remain illegal and may not be registered. a.. Third, the Supreme Court's ruling is limited to handguns in the home and does not entitle anyone to carry firearms outside his or her own home.
Lastly, although the Court struck the safe storage provision on the ground that it was too broadly written, in my opinion firearms in the home should be kept either unloaded and disassembled or locked.
I will comply with the Court's reading of the Second Amendment in its letter and spirit. At the same time, I will continue to vigorously enforce the District's other gun-related laws. I will also continue to find additional ways to protect the District's residents against the scourge of gun violence.
Residents who want additional information can visit the Metropolitan Police Website at www.mpdc.dc.gov/gunregistration. Residents with questions are encouraged to contact the Firearms Registration Section at 202-727-9490.
Sncerely,
Cathy Lanier Chief of Police
Memo Source: WashingtonPost.com
Action Needed: Although Ms. Lanier and those in charge of the District of Columbia residents? safety are entitled to their opinions, I firmly believe that they are dead wrong in their interpretation of the Supreme Court?s ruling and the spirit of the ruling. I supposed that I could understand things from their point of view if they had one of the cleaner and safer cities in the nation, but we all know that is not true. I ask you all to call the Chief?s office, write a letter or email and let her know just how you feel about her memo.
