Heller II Loses in DC Circuit, Mostly

The challenge was on DC’s gun laws as they stand post-Heller. They have been upheld in part and remanded in part:

We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements. We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented.

I hope in this case that Heller II stops here, because this is not a good case to move forward, and it’s already done enough damage. Challenging the “assault weapons” provisions of DC’s law was highly premature, especially considering we’re likely to remedy that through Congressional action if we can flip the Senate and the White House.

The record supports the view that basic registration of handguns is deeply enough rooted in our history to support the presumption that a registration requirement is constitutional.

I’m not optimistic that registration requirements will be held unconstitutional. It’s hard to imagine a federal judiciary that doesn’t really like the Second Amendment to rule otherwise. If you look at the core right, as the courts have defined it, it’s difficult to argue how registration infringes on it in a substantial way. Nonetheless the Appeals Court seems to be skeptical about requiring it for long guns.

But the Appeals Court seems to be hanging onto the “longstanding” aspect of the original Heller ruling, and seem to be applying a test that if a law is longstanding, it must therefore be constitutional. This strikes me as extraordinarily weak reasoning, although it was exceedingly weak language from the Court, in my opinion. The Appeals Court’s opinion here seems to be based on the fact that the Sullivan Act is longstanding, and therefore a registration scheme, as applied to pistols, is constitutional.

As between strict and intermediate scrutiny, we conclude the latter is the more appropriate standard for review of gun registration laws.

Couldn’t have seen that coming. Has any court decided that using strict scrutiny is appropriate for anything related to the Second Amendment? Not that I’ve seen. They always find a reason it’s not appropriate. But on to the assault weapons issue, since that is the most curious. There is one bright spot. The Appeals Court found they are in common use:

We think it clear enough in the record that semi- automatic rifles and magazines holding more than ten rounds are indeed in “common use,” as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000. There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten.

But then proceeded to argue that they were not protected, and restricting them is perfectly constitutional:

Nor does the ban on certain semi-automatic rifles prevent a person from keeping a suitable and commonly used weapon for protection in the home or for hunting, whether a handgun or a non- automatic long gun.

They adopted the substitution principle, which was rejected when D.C. made that argument in the original Heller. Basically, because you have access to some firearms in common use, banning other firearms in common use is perfectly OK because of substitution.

Although we cannot be confident the prohibitions impinge at all upon the core right protected by the Second Amendment, we are reasonably certain the prohibitions do not impose a substantial burden upon that right. As the District points out, the plaintiffs present hardly any evidence that semi-automatic rifles and magazines holding more than ten rounds are well-suited to or preferred for the purpose of self- defense or sport.

Magazines don’t fare any better:

The Siebel testimony moreover supports the District’s claim that high-capacity magazines are dangerous in self-defense situations because “the tendency is for defenders to keep firing until all bullets have been expended, which poses grave risks to others in the household, passersby, and bystanders.”

So they don’t let their police carry them, do they? NRA now has a mission. It needs to overturn the D.C. gun laws through Congressional action, and I think it would be of great benefit if a quip could be added to the bill citing Congress finds this ruling in error. It’s worth noting that none one of the judges on this panel were was the same as those who decided  lone dissenter in the Parker (which then become Heller) case.

I strongly believe the Second Amendment needs to become a litmus test for federal judges. We want the most ambitious of the federal bench fearful to rule against us for the possibility that will be used to prevent advancement to a higher court.

I should note the Court devoted a significant part of their opinion in this case to addressing the dissenting judge in this case. That must mean the dissent is pretty good. We’ll take a look at that later.

7 thoughts on “Heller II Loses in DC Circuit, Mostly”

  1. If semi-auto firearms can be banned, so can breech-loaders and revolvers.

    Despite BATFE’s assertion, 3-gun and the action shooting sports are sports; and semi-auto weapons are suitable for home defense. DC’s ban isn’t an “assault weapons ban” in the sense of the federal one, or the current state ones in that they are bans on cosmetic features; but a ban on most conventional firearms masquerading as an AWB.

    That having been said, Congressional action is the best solution for this.

  2. I really wish that people didn’t try to boil the ocean. Any one of the three issues should have had a full and separate case and be brought in the right order…

    The dissent gets this, but Heller did him no favors by handing him too much challenge and not enough focus.

    Kind of underscores that plaintiffs don’t necessarily craft great cases… I’m sure Dane will accept no responsibility for his strategic errors…


  3. Penny-wise, pound-foolish. One suit is cheaper, but has more chances to go wrong. OTOH, this one was separated by the court , they did punt parts back.

  4. I really wish that people didn’t try to boil the ocean. Any one of the three issues should have had a full and separate case and be brought in the right order…

    Yep. I think the Benson case in Illinois is similarly flawed.

  5. I wasn’t able to find it, but I believe David Kopel wrote an pre-Heller Iessay on how assault rifles have always been a big loser in the Federal Courts and that we shouldn’t expect favorable decisions from them in this area any time soon.

  6. Nor does the ban on “authorized” online publication prevent a person from speaking his mind and getting the word out, whether a limited circulation newsletter published in the garage or with a bullhorn on a soapbox (in approved areas only).

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