Partial Win in “Heller III”: Federal Court Rules Some DC Gun Laws Unconstitutional

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The DC Circuit Court of Appeals today struck down several parts of the District’s firearms laws as unconstitutional. [ED: click here for the NRA’s press release on the ruling.]The case is styled Dick Anthony Heller v. District of Columbia (and yes, we are talking about that Dick Heller). Heller was challenging several parts of DC’s firearms laws, outlined below. Most of these were struck down. Some were upheld. To make it easier on your eyes, they’ll be clearly marked . . .

(1) The requirement that long guns be registered. UPHELD.
(2) The requirement that one must appear in person to register any firearm, and be fingerprinted and photographed. UPHELD.
(3) The requirement that the firearm be brought to the police department as part of its registration. STRUCK DOWN.
(4) The imposition of registration fees of $13.00 for firearms and $35.00 for fingerprinting. UPHELD.
(5) The requirement that registrants take a firearms safety and training course. UPHELD.
(6) The requirement that registrants pass a written exam. STRUCK DOWN.
(7) The prohibition on registration of more than one gun per month. STRUCK DOWN.
(8) The expiration of the registration within three years, necessitating reregistration. STRUCK DOWN.

The opinion written by Judge Douglas Ginsburg struck most of these elements down because, under intermediate scrutiny, the District failed to proffer evidence that the solutions offered actually would reduce crime. Ginsburg repeatedly called the District on the way it vaguely asserted that requiring DC residents to re-register their guns every three years would improve safety for police. I may be reading too much into the decision, but Justice Ginsburg seems to positively cackle with glee as he hoists the anti-gun crowd on its own “common sense” petard as it struck down the ‘bring your gun to the police department’ rule:

The District argues that the “requirement that the firearm be made available for inspection allows MPD to verify that the application information is correct and that the firearm has not been altered or switched with another firearm.” The District, however, has offered no evidence — let alone substantial evidence — from which it can be inferred that verification will promote public safety.

The district court acknowledged as much when it noted that not one of the District’s four experts “specifically addresse[d] the requirement that registrants bring the gun to be registered with them.” Heller III, 45 F. Supp. 3d at 59. The district court nonetheless deemed it a “common-sense inference” that “if in-person appearance is necessary to verify the identity of the registrant, then physically bringing the gun is similarly necessary to verify the character of the registered weapon.” Id.

Yet common sense suggests a person would not go to the trouble of obtaining a registration certificate for a weapon other than a weapon in his possession. On the contrary, common sense suggests that bringing firearms to the MPD would more likely be a threat to public safety; as Heller maintains, there is a “risk that the gun may be stolen en route or that the [would-be registrant] may be arrested or even shot by a police officer seeing a ‘man with a gun’ (or a gun case).

That’s not the only point where the Court sneered at the weakness of the District’s use of expert witnesses, either. That seemed to be a common thread here.

Of course, it wasn’t all sunshine and strawberries; it was a little disappointing that e Court couldn’t toss the entire registration scheme nThat said, I am not really surprised that the concept of firearm registration was itself upheld.

It is, unfortunately, consistent with existing case law and long-standing practices. Even the Supreme Court allowed, in the 2008 Heller decision, that registration was not necessarily unconstitutional. I suppose one might even say that if DC wanted to call forth the citizen militia to fight bandits or invaders, knowing what guns they had handy might be helpful.

Once you’ve accepted that point, the fingerprinting and nominal fees also seem to be logical inferences under the circumstances. That’s not ideal, but the Courts can only go so far, and these are the kinds of things we will need to fight and win at the local level. Fine.

The District may try to appeal to the Supreme Court, of course. If the Roberts court continues its policy of studiously ignoring gun cases, that might cut slightly in our favor for once.

Regardless, another thank-you is in order for Mr. Heller, as well as legal scholar and gun rights advocate Stephen Halbrook, who argued the case before the Court.

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

comments

  1. avatar Dirk Diggler says:

    4/8 does not equal most in my book. . . . half maybe?

    1. avatar actionphysicalman says:

      It wasn’t advice at all then;-)

      1. avatar actionphysicalman says:

        Meaning no mathematician-client relationship was created.

  2. avatar Grindstone says:

    And now DC will use registration to confiscate those guns by twisting around some other “rules” they make up along the way.
    Registration is confiscation.

    1. avatar NYC2AZ says:

      They’ll just pull a NYC and make anything that is capable of holding more than 5 rounds illegal to own in the District.

  3. avatar Stinkeye says:

    You might want to look up the word “most” in a dictionary, Johannes. Or take a remedial mathematics class…

    1. avatar Johannes Paulsen says:

      With the Common Core curriculum dominating education nowadays, I’ll take my chances as is, thanks.

    2. avatar doesky2 says:

      Feelings is what counts now days.
      they FELT it was MOST.

  4. avatar GunGeek says:

    Thanks! Wonder if the decision could help to challenge CA’s firearms requirements: pass FSC test, 1 registration per 30 days, and reregistration requirements.

    1. avatar Mark N. says:

      The test in Heller III was a test on D.C.’s peculiar gun laws., unlike the FSC which one can pass blind folded after 20 minutes of studying, and that covers no more than basic safe handling and transfer requirements. there is no “re-registration” requirement in California, only registration upon purchase or transfer. And the decision is not binding on California courts to the extent that it invalidated the 1-in-30 requirement because it was not a finding of unconstitutionality, but instead of a lack of substantial evidence to support a factual finding as required by intermediate scrutiny.

      1. avatar GunGeek says:

        “FSC which one can pass blind folded after 20 minutes of studying, and that covers no more than basic safe handling and transfer requirements. there is no “re-registration” requirement in California, only registration upon purchase or transfer. ”

        The staff at Target Masters in Milpitas, CA tell me that a large number fail the test.

        Calguns: “A handgun buyer or transferee must have a Handgun Safety Certificate, and present it to the dealer before the dealer can deliver a handgun. Once the HSC has expired, the firearms purchaser must test for and obtain a Firearms Safety Certificate (FSC).
        Prior holders of a BFSC must obtain a FSC; the BFSC is no longer accepted.
        The FSC is valid for five years and must be renewed.”

        From a practical standpoint, FSC renewal seems synonymous with re-registration -i.e., not gun re-registration.

        1. avatar Tim C says:

          Some people just have problems on paper tests, like my brother. I was unsure of one of the questions. I got 100% to buy two stripped lowers that are now a 6.8 Rem SPC. and 300 Blkout.

  5. avatar uncommon_sense says:

    Can you imagine the wailing and gnashing of teeth if a court upheld the following requirements for the right to vote:
    (1) Voters must be fingerprinted and photographed.
    (2) Voters must pay fees of $13.00 for voter card and $35.00 for fingerprinting.
    (3) Voters must take a Civics and Economics course.

    An even more important question: why aren’t we protesting and creating just as much disruption as the mobs that would be protesting such impositions on voters?

    1. avatar Kyle says:

      There would be liberal democrat riots!

    2. avatar Soccerchainsaw says:

      Indeed. “nominal fees” for some equals putting the total package cost just out of reach for others. Having to travel during normal business hours to register, fingerprint, etc. is not really an option for some. So even more than a right delayed, a right denied is a right denied. All this seems to meet the very definition of “infringement”.

  6. avatar Roy says:

    The re-registration was probably the scariest thing in here. I’m glad it was struck down and hopefully that can be used to fight re-registration laws elsewhere. It’s draconian to think that one could lose their gun collection or become a criminal if they can’t afford re-registration or otherwise just forget they had to do it. It also opens the door that if onerous fees were levied, they could make gun ownership unaffordable via constant reregistrations.

    1. avatar Joe R. says:

      The real “scary” part was the legalized a_ _-rape from your nrighbors (your f-ing stupi(D) POS A-hole neighbors needing jobs a/k/a your government. that is).

      WHO THE F DO THESE PEOPLE THINK THEY ARE?

      The only thing the broke di<k black robe tards got right was the issue of safety. 1) NO – thise demanding registration are not protecting you (not even after the fact); and 2) F-NO those demanding registration and pre-presentation/inspection of firearms are not even (better thus) protecting themselves.
      BUT THE COURT IGNORED 3) IN LIMITING A citizens RTKABA you lare limiting a persons right to protect themselves from their fellow citizens and others; and 4) IF a citizen has the right to protect themselves against their fellow citizens then THEY SURE AS FU< K HAVE THE GREATER RIGHT TO PROTECT THEMSELVES FROM THEM WHEN THOSE FELLOW CITIZENS GROUP-UP AND CALL THEMSELVES "GOVERNMENT."

      FU(D.)C. You've become the sh_t that we've already determined we needed to be emancipated from. FU&YOURS
      EAT SH_T.

  7. avatar Ed says:

    There are so many gun owners who won’t cough up one red cent to support a gun rights group yet they claim they will die to preserve the 2nd amendment. What BS. If you won’t support with your money I seriously doubt you would support with your life.

    1. avatar GunGeek says:

      Thanks, Ed. Sadly that’s my sense too.

      1. avatar Joe R. says:

        Really?

        My sense is that there are too many wet sh_t groups out there begging for your $ while selling compromise. American history ain’t old enough that you can claim to not know of it, nor that it is lany ess relevent today. No one wants to have to die to drag our government back to where its rightful place and ‘seat’ is. However, no one wants to expend their resources to merely ‘soften the slide.’ Let your a-hole neighbors needing jobs (your government) get to full-on retard as fast as possible, so that we can more quickly start-over.
        CONSIDER:
        If your neighbors raised up an army against you, you would fight to destroy both (and you wouldn’t advertise sh-t by joining some group that may or may not share common cause). Well, your neighbors have (essentially) raised up an army of angry crack-whores against you, and those crack-whores are after your guns, so that you can’t counter either.

        It would probably be better to save your pennies for your own batch of $10 crack-whore hit squads, it’ll likely take to really fix this. (If your gov’t hasn’t already got them all under contract).

        1. avatar GunGeek says:

          Joe, Agree. I too suspect there are organizations that claim to support 2A, but effectively exist to fund their executive director’s compensation and have little else to show for donations or dues.

  8. avatar William Burke says:

    Small victories, major defeats. We’re in a long struggle with the masses who have been robbed of any mental acuity that they possessed to begin with. The Nazis discovered that fluorides lower IQs by 15 points, maybe more.
    Vaccines have increased the autism (throughout the spectrum) of autism from 1 in 58 recently to much greater than that now.

    It’s been estimated that autism will grow to *1 in 3* by 2030. That’s one parent to work, and the other to care for the damaged children – this spells economic disaster!

    We already have people who are incapable of simple reasoning tasks. It doesn’t look good for the home team!

    1. avatar Aaron says:

      bull shiite. Sto conflating crackpot nonsense with gun rights.

    2. avatar John L. says:

      “We already have people who are incapable of simple reasoning tasks.”

      Apparently.

    3. avatar Geoff PR says:

      “It’s been estimated that autism will grow to *1 in 3* by 2030.”

      Not quite.

      They estimate that autism will be *diagnosed* in 1 of 3 by 2030.

      However, it won’t surprise me that Big Brother will encourage that diagnoses, and use that to add to the ‘prohibited persons’ list that will be ever-expanding.

      It’s ‘for the children’ don’t you know…

    4. avatar Bunny says:

      That is completely wrong. The man who published his autism study on SIX patients had his article recalled and will never be able to print another scientific article after his 100% lies. The study was funded by a group that was suing a medical company for “vaccines causing autism”. The reason the rates have sored is because we are 10000x better at diagnosing autism on a wide range of personality traits and behaviors. In the past we called them weirdos and only the extremely autistic were diagnosed. You give a horrible name to gun owners.

      1. avatar Mister Fleas says:

        Thank you for saying that.

  9. avatar Aaron says:

    1/2 a loaf is better than none.

    But not good enough.

    Thugs in DC and PG County kill each other and innocents with guns with impunity – and NONE OF THEM followed DC’s gay-azz gun laws. In fact, when DC was the murder capital of the world in the 90’s – before gentrification pushed many thugs to PG county MD – handguns were completely BANNED. DC ‘s gun laws serve no legitimate purpose. They exist solely to make libs feel good about themselves.

    1. avatar GayGunOwner says:

      Aaron,
      Keep in mind that a bunch of gay gun owners (Pink Pistols) were among those named in a friend of the court brief to challenge DC’s “gay-ass” gun law.

      As a side note, I see much more activism from gun owners that happen to be gay than my straight friends. None of the LGBT gun owners I know promote any agenda at ranges. No rainbow flags, etc.

      What I do see are LGBT gun owners with a lot of activism experience now using those talents to thwart the anti-gun agenda. Recent proof point: gay activists were behind the complete defeat of Brady & CSGV efforts to impose additional gun restrictions in Santa Cruz County CA.

  10. avatar tdiinva (Now in Wisconsin) says:

    Gun registration is not in unconstitutional per se. For example a law or regulation that all firearms be registered with National Guard Adjudent General”s office would probably pass muster based on Article I Section 8 and the Militia act. I am surprised that the gun grabbers haven’t figured this out.

    1. avatar GunGeek says:

      Perhaps they have and the National Guard decided they have better things to do – particularly if no funds are provided to cover the additional operating cost.

      1. avatar tdiinva (Now in Wisconsin) says:

        You retort is a non sequitor. Under Article I, Section 9, Paragraph 16 Congress sets the rules for both the organized and unorganized militia. If Congress tells the state militias make it so, under the Constitution that have to do it.

    2. avatar Joe R. says:

      Where are u FROM? td (now in Wi).
      You sound like USSR, with a slight accent of satan.
      Registration IS infringement. It IS the demand that you ask your FING POS neighbors needing jobs (a/ka: your government) for permission to protect yourself FROM THEM.

      1. avatar tdiinva (Now in Wisconsin) says:

        I see that your knowledge and understanding of the Constitution is non-existent. You are a member of the unorganized militia. The militia is organized and administered by the states. Therefore, you come under the authority of The Adjudent General of the state militia. If the State or federal government decides that it needs to what weapons individual militiamen have for logistical purposes it has the constitutional and statutory authority to do so.

  11. avatar Tom RKBA says:

    The court is defining the privilege to keep and bear arms. So much for the courts “saving” us.

  12. avatar Jus Bill says:

    What difference does this decision really make?

    (1) The requirement that long guns be registered. UPHELD.
    (2) The requirement that one must appear in person to register any firearm, and be fingerprinted and photographed. UPHELD.
    …(4) The imposition of registration fees of $13.00 for firearms and $35.00 for fingerprinting. UPHELD.
    (5) The requirement that registrants take a firearms safety and training course. UPHELD…

    So the handful of licensed owners and registered guns will increase by an insignificantly partial percentage of a point compared to DC’s population. And the criminals will continue to ignore the newly “relaxed” laws.

    The only way this can be seen as progress is that it possibly provides the basis for a Supreme Court case. But it think not in my lifetime.

    1. avatar Johannes Paulsen says:

      So the handful of licensed owners and registered guns will increase by an insignificantly partial percentage of a point compared to DC’s population. And the criminals will continue to ignore the newly “relaxed” laws.

      The only way this can be seen as progress is that it possibly provides the basis for a Supreme Court case. But it think not in my lifetime.

      Keep in mind that the challenge here was aimed at the bureaucratic obstacles DC was erecting against people who were attempting to exercise the rights that the Supreme Court had forced them (kicking and screaming) to respect. While the whole thing *is* an infringement, at least, the Appellate Court struck down the parts of the law that were (in my opinion, anyway,) the truly egregious ones: one-gun-per-month, re-registration, schlepping the gun for ‘examination’ by the DC cops, the written exam (which asked some trivial questions related to DC ammunition laws, among other things.)

      The court *could* have upheld all of that BS (as the dissenting judge, Henderson, wanted,) which would have been really bad. It was good to see the appellate court tell DC that even under intermediate scrutiny, it couldn’t get away with justifying any infringement simply because they thought a policy might enhance security. There are some judges (and a metric ton of politicians) that would definitely take the opposite view.

      Regarding your concern about the paucity of licenses being issued yet, remember that Heller *got* his license. He can’t challenge that anymore. We’ll have to see challenges from other people who are applying for licenses and getting rejected for spurious reasons (because they can’t prove that the threats they’re concerned about are ‘good enough’). I’m sure there will be more to follow….

  13. avatar gsnyder says:

    Better than nothing but I see no reason for registration and strongly believe it unconstitutional.

  14. avatar Scrubula says:

    “but Justice Ginsburg seems to positively cackle with glee as he hoists the ”
    Just so you know, Ginsburg is a woman. She’s also one of the oldest justices and arguably the most liberal.

    The more you know.

    1. avatar NYC2AZ says:

      Wrong Ginsburg.

    2. avatar B K says:

      She calls herself “Douglas” now?

      I guess in your case its the less you know.

    3. avatar Johannes Paulsen says:

      That’s Judge Douglas H. Ginsburg, DC Circuit Court of Appeals: https://en.wikipedia.org/wiki/Douglas_H._Ginsburg

      (That’s his photo at the top.)

  15. avatar Anon in CT says:

    The really disappointing part was the use of Intermediate Scrutiny. Restrictions on a fundamenta, ennumerated right should require Strict Scrutiny.

  16. These people must be stupid. What part of “shall not infringe” don’t they understand? Can everyone say “I have the right to protect myself.” Thanks for your support and vote. Pass the word. mrpresident2016.com

  17. avatar foo dog says:

    Agreed- 2A should be treated with strict scrutiny guidelines. Why it has not is because most of the appeals courts have relied upon the minority dissent to interpret intermediate scrutiny, and its only gotten messier since.

    While it was about 922, there is a very good in Tyler vs Hillsdale for levels of scrutiny, and various circuit of appeals courts interpretations, see pdf here: http://www.ca6.uscourts.gov/opinions.pdf/14a0296p-06.pdf

    “No. 13-1876 Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, et al. Page 22
    The District of Columbia Circuit applied intermediate scrutiny to gun-registration laws,
    but held that “a regulation that imposes a substantial burden upon the core right of self-defense
    protected by the Second Amendment must have a strong justification, whereas a regulation that
    imposes a less substantial burden should be proportionately easier to justify.” Heller II, 670 F.3d
    at 1257.
    This tour of the circuits confirms several points. The appropriate level of scrutiny that
    courts should apply in Second Amendment cases (assuming a scrutiny-based approach is
    appropriate at all) remains a difficult, highly contested question. “[O]ur sister circuits have
    grappled with varying sliding-scale and tiered-scrutiny approaches.” Peruta, 742 F.3d at 1167.
    “Heller has left in its wake a morass of conflicting lower court opinions regarding the proper
    analysis to apply to challenged firearms regulations.” Chester II, 628 F.3d at 688–89 (Davis, J.,
    concurring in the judgment). “Since . . . Heller, courts have wrestled with its text to develop a
    sound approach to resolving Second Amendment challenges.” Greeno, 679 F.3d at 518. The
    general trend, however, has been in favor of some form of intermediate scrutiny.
    What this also reveals is that our circuit is one of the few that has not entered this debate.
    Although we must “appl[y] the appropriate level of scrutiny,” ibid., we also must decide whether
    that is intermediate scrutiny or strict scrutiny. “A choice must be made.” Ezell, 651 F.3d at
    706.13”

    There are strong reasons for preferring strict scrutiny over intermediate scrutiny. First,
    the Supreme Court has by now been clear and emphatic that the “right to keep and bear arms” is
    a “fundamental righ[t] necessary to our system of ordered liberty.” McDonald, 561 U.S. at 778.
    In our view, that strong language suggests that restrictions on that right trigger strict scrutiny. It
    is true that strict scrutiny is not always “called for whenever a fundamental right is at stake.”
    Heller II, 670 F.3d at 1256 (majority opinion). The majority in Heller II forcibly argued this
    point. See id. at 1256–57.
    (see more for second, third, and fourth point).

    We conclude our explanation of choosing strict scrutiny with a reminder of intermediate
    scrutiny’s shaky foundation in Second Amendment law. The Seventh Circuit was the first court
    of appeals to apply intermediate scrutiny to a Second Amendment challenge in United States v.
    Skoien (Skoien I), 587 F.3d 803 (7th Cir. 2009). That opinion was vacated, United States v.
    Skoien, No. 08-3770, 2010 WL 1267262 (7th Cir. Feb. 22, 2010), and on rehearing, the en banc
    court expressly declined to wade “more deeply into the ‘levels of scrutiny’ quagmire” and simply
    accepted the government’s “concession” to apply intermediate scrutiny for the case at hand.

    We conclude our explanation of choosing strict scrutiny with a reminder of intermediate
    scrutiny’s shaky foundation in Second Amendment law. The Seventh Circuit was the first court
    of appeals to apply intermediate scrutiny to a Second Amendment challenge in United States v.
    Skoien (Skoien I), 587 F.3d 803 (7th Cir. 2009). That opinion was vacated, United States v.
    Skoien, No. 08-3770, 2010 WL 1267262 (7th Cir. Feb. 22, 2010), and on rehearing, the en banc
    court expressly declined to wade “more deeply into the ‘levels of scrutiny’ quagmire” and simply
    accepted the government’s “concession” to apply intermediate scrutiny for the case at hand,
    Skoien II, 614 F.3d at 641–42 (July 13, 2010).16 Then, the Third Circuit in Marzzarella applied
    intermediate scrutiny, acknowledging that the matter was “not free from doubt” and even
    offering a robust alternative strict-scrutiny analysis. 614 F.3d at 97, 99–101 (July 29, 2010).

    The Skoien II court’s refusal to decide the scrutiny issue and the Marzzarella court’s frank
    uncertainty about its choice are hardly solid foundation for what has proven to be the analytic
    bedrock of the circuits’ Second Amendment jurisprudence.17 But those two opinions—refusal to
    decide and uncertainty, no matter—were enough to trigger the cascade.

    Bottomline- at least the Second Appeals Court- perhaps the most influential, ruled in favor of Heller3 in such a way as to tighten intermediate scrutiny. That is a win, and DC runs a big risk of taking it to SCOTUS for cert, given the complexity and lack of clear cut splits that is the usual justification for SCOTUS to step in.

    Is it a perfect win? No. Its an incremental one, and that is how we got here, with Heller 1, and since, step by step on precedential cases building a foundation.

    Next step – Vote in a conservative POTUS in 2016 and appoint 3 replacements to the aging Justices that are likely to go out in the next 8 years. CCW took 30 years to get here. It make take another 10 to get constitutional carry, but its on the horizon if we elect the right people.

  18. avatar foo dog says:

    Judge Henderson’s dissent comes down to four logic fails:

    1. She relies on Heller 1’s minority dissent citing Turner, this time twisting it by giving deference to the legislature (the Justice Oliver Holmes “we can all go to hell” standard)

    2. Cites judicial humility, to misinterpret the Founders intent in a new twist on US v Masciandaro,
    per the fear based “because guns” thinking of Brady Moms.

    3. The Hunger Games “Capitol City” justification for why law abiding must be disarmed: “its where the Elite come to Meet!”, never imagining outside her guarded walls that the law-breakers dont give a crap about the laws…

    4. Whining about lack of data- yes- there is a LOT of partisan baloney and made up data out there Judge…
    Just step out on the streets of DC and look around. How much have homicide rates gone up this year, again?

    Judge Henderson’s arguments can be summed up as:
    “All animals are equal, but some animals are more equal than others”.

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