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Heller Attempts to Register Gun; Denied - Heller 2.0 on the way!
- Thread starter LanceOregon
- Start date
Reading in the context of the decision, it seems clear that the ruling says that handguns (as a class) are commonly used weapons and are therefore protected.Since semi-autos are the most common handguns around, I think Scalia covered that base.
Nowhere does the ruling so much as hint that commonly used classes OF handguns enjoy their own protection just as the entire class does.
In other words, the ruling affirms that citizens have the right to own handguns (since they're a commonly used class of weapons), but it doesn't go any further than that as far as I can tell.
I don't see anything in the ruling that takes the next step and extends that coverage to say that citizens have a right to own ALL commonly used types of handguns or ANY example of a commonly used subcategory of the handgun class.
By allowing citizens to own at least one type of handgun commonly in current use for self-defense (revolvers certainly fit the bill) it seems to me that DC is following the letter of the law.
I'm hoping that I'm wrong, but it doesn't seem that way from what the ruling actually says. I think that perhaps there's a lot of wishful thinking going on, but I would love it if someone can prove me wrong...
Isn't that splitting hairs? Redefine categories so that instead of "handguns", "rifles", etc. you have "revolvers", "semi-auto handguns", "bolt rifles", "semi-auto rifles", etc. Then re-apply the logic. In terms of documented use in self defense, I suspect the results will be: #1: semi-auto handguns, #2: revolvers.Nowhere does the ruling so much as hint that commonly used classes OF handguns enjoy their own protection just as the entire class does.
The concept of a strict hierarchy of categories and subcategories of firearms is just silly. Look at the mess caused by federal definitions of short-barreled rifle vs pistol when it comes to, for example, ar-15 receivers.
By allowing citizens to own at least one type of handgun commonly in current use for self-defense (revolvers certainly fit the bill) it seems to me that DC is following the letter of the law.
So by that definition, it would be okay for the government to ban books and newspapers as long as they permitted magazines to be published? I think not. In fact, I think either Scalia or Roberts asked a very similar question during orals.
There are two code sections related to semi-auto "machine guns" in the D.C. code.
DC Code 7-2501.01 (definitions) states in part:
(10) "Machine gun" means any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot:
(A) Automatically, more than 1 shot by a single function of the trigger;
(B) Semiautomatically, more than 12 shots without manual reloading.
DC Code 22-4501 states;
(c) "Machine gun," as used in this chapter, means any firearm which shoots automatically or semiautomatically more than 12 shots without reloading.
It is the first section (7-2501.01) that says any semi-auto pistol will be verbotten. The argument, of course, is that by inserting a larger than normal capacity magazine, the standard 1911 can be "readily converted" to shoot more than 11 rounds.
Bill and John, while your reasoning is, well, reasonable, I recall Scalia's opinion to be less specific in its structure. Wasn't it merely that DC is not free to prohibit for use in self defense the kind of arm, a handgun, that most americans have concluded is suitable for that task?
Indeed. However if a legislative lays the proper predicate, has hearings and finds that semi-auto pistols are used disproportionately in violent crime, are generally more dangerous, and not well suited to self defense, would it then be arbitrary or capricious to ban them? I believe that would be the issue under Heller.
The challenge would have to introduce its evidence at the trial level, and subsequent reviewing courts would likely be inclined to accept the legislative findings of fact.
Isn't that splitting hairs? Redefine categories so that instead of "handguns", "rifles", etc. you have "revolvers", "semi-auto handguns", "bolt rifles", "semi-auto rifles", etc. Then re-apply the logic. In terms of documented use in self defense, I suspect the results will be: #1: semi-auto handguns, #2: revolvers.Nowhere does the ruling so much as hint that commonly used classes OF handguns enjoy their own protection just as the entire class does.
The concept of a strict hierarchy of categories and subcategories of firearms is just silly. Look at the mess caused by federal definitions of short-barreled rifle vs pistol when it comes to, for example, ar-15 receivers.
Indeed. However if a legislative lays the proper predicate, has hearings and finds that semi-auto pistols are used disproportionately in violent crime, are generally more dangerous, and not well suited to self defense, would it then be arbitrary or capricious to ban them? I believe that would be the issue under Heller.
The challenge would have to introduce its evidence at the trial level, and subsequent reviewing courts would likely be inclined to accept the legislative findings of fact.
On July 17, 2002, Dick Heller attempted to register a High Standard Buntline .22 (see this exhibit).
On July 17, 2008, Dick Heller attempted to register his 1911 and was refused.
Currently, the press is reporting that the refusal was because Heller did not bring the firearm to the registration process. This is not exactly what transpired, as we shall see.
Note the references to the D.C. Code that BillCA so conveniently supplied. Had Heller brought his 1911 to the station, it would have been confiscated as an unlawful firearm. This would have complicated matters, as D.C. would not have refused to register the firearm, it would have simply been confiscated as unlawful. Heller may have been arrested at that point for unlawful possession or at a later date (after an investigation) for transporting an unlawful firearm into the city (different D.C. Code). Heller would then have had to fight a different legal battle, than the one which he is currently engaged.
What Heller did, on advice of his attorney (who was present to document the actions of D.C.), was to get the city's permission to bring the firearm into the City to be registered. This was the permission that was denied, when he stated that it (the firearm) would be his 1911 semi-automatic handgun.
Now Heller can attack the City Code that relates to machine guns via the holding of the Supreme Court:
Now Heller is free to attack the City as being not in compliance with a direct Supreme Court edict and the Code(s) as being arbitrary and capricious, without having to complicate the matter by being arrested and having his firearm confiscated. Two issues that would cloud the main issue that they (Gura & Co.) are trying to bring.
Alan Gura has posted another section on his DCGunCase blog to further explain what is being done.
We have seen in the past, several gun-folks, who have gone to court without adequate legal counsel and have lost their cases. This has laid down various precedents.
Now we have Heller and Gura going about, letting Fenty and D.C. move one step at a time, and at each step, they are getting the anti-gunners kicked by the courts.
Baby steps. One thing and one thing only, at a time.
We simply could not ask for anything better than this.
On July 17, 2008, Dick Heller attempted to register his 1911 and was refused.
Currently, the press is reporting that the refusal was because Heller did not bring the firearm to the registration process. This is not exactly what transpired, as we shall see.
Note the references to the D.C. Code that BillCA so conveniently supplied. Had Heller brought his 1911 to the station, it would have been confiscated as an unlawful firearm. This would have complicated matters, as D.C. would not have refused to register the firearm, it would have simply been confiscated as unlawful. Heller may have been arrested at that point for unlawful possession or at a later date (after an investigation) for transporting an unlawful firearm into the city (different D.C. Code). Heller would then have had to fight a different legal battle, than the one which he is currently engaged.
What Heller did, on advice of his attorney (who was present to document the actions of D.C.), was to get the city's permission to bring the firearm into the City to be registered. This was the permission that was denied, when he stated that it (the firearm) would be his 1911 semi-automatic handgun.
Now Heller can attack the City Code that relates to machine guns via the holding of the Supreme Court:
Notice that the Court did not specify "a handgun" but "his handgun." The 1911 is "his handgun." As is the Buntline.Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
Now Heller is free to attack the City as being not in compliance with a direct Supreme Court edict and the Code(s) as being arbitrary and capricious, without having to complicate the matter by being arrested and having his firearm confiscated. Two issues that would cloud the main issue that they (Gura & Co.) are trying to bring.
Alan Gura has posted another section on his DCGunCase blog to further explain what is being done.
Even though you will have to "read between the lines," the strategy that Gura is using is well thought out.Clearing the Air
July 18th, 2008 by Alan Gura
There’s been some confusion about how the Supreme Court’s decision is to be implemented, and what it means for DC’s registration system, going forward. We’d like to clear the air.
The handgun that Mr. Heller tried to register in 2002, the registration of which was ordered by the courts, is a nine-shot revolver. It is fully registrable under D.C. law as it stands today, and Mr. Heller will have it registered to him. We are not expecting the city to resist the registration of this firearm. Once the gun is registered to Mr. Heller, he can use it to defend his home.
There are significant, practical limits on the number of arguments that can be put together in one lawsuit. In our case, we chose to focus on the handgun and functional firearms bans – and that was plenty work for the courts to consider. Litigants do not have unlimited space in the briefing, or unlimited time in argument, and there is a significant strategic advantage – as we have demonstrated – in keeping constitutional litigation focused and narrow.
That does not mean that the rest of the D.C. Code with respect to firearms is constitutional. Much of it is not. But the entire code was not directly at issue in our case. It is our hope that Mayor Fenty and the City Council, or Congress, if the Mayor and City Council are unwilling to do so, sit down with their code books and the Supreme Court’s opinion, and make a serious effort to conform the former to the latter. If the political branches do not make the city’s firearm laws constitutional, then as we've seen, the courts will do it for them.
However, the judgment in this case relates only to the provisions that were struck down, and the city appears to be complying with the literal command of the judgment. Again, we do not believe that everything the city is doing is constitutional. Some of the city’s registration practices are clearly unconstitutional, as is the semi-auto ban. But these are not issues that can be resolved in the context of the current case.
The Supreme Court’s decision is a smashing victory for liberty, and it has made immediate practical impact on the Second Amendment rights of Washington, D.C. residents. Mr. Heller will have his handgun, lawfully, at home, and he can use it for self-defense should the need arise. That was the object of the case, and it has succeeded. We will continue to monitor the city’s behavior for compliance with the decision. And we are sure that in due time, all of the city’s unconstitutional practices will be altered, one way or another.
We have seen in the past, several gun-folks, who have gone to court without adequate legal counsel and have lost their cases. This has laid down various precedents.
Now we have Heller and Gura going about, letting Fenty and D.C. move one step at a time, and at each step, they are getting the anti-gunners kicked by the courts.
Baby steps. One thing and one thing only, at a time.
We simply could not ask for anything better than this.
Indeed. However if a legislative lays the proper predicate, has hearings and finds that semi-auto pistols are used disproportionately in violent crime, are generally more dangerous, and not well suited to self defense, would it then be arbitrary or capricious to ban them? I believe that would be the issue under Heller.
Well, if we're using arbitrary and capricious as a benchmark then we're back to rational basis standard of review. Scalia suggested that the standard is something other than rational basis, without specifying. I would hope that arbitrary and capricious, which puts the burden on the party arguing against the law, is not the standard we're left with.
Here's the comment from Orals:
CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers?
MR. DELLINGER: No, it's not, and the difference is quite clear. If -- if you -- there is no limit to the public discourse. If there is an individual right to guns for personal use, it's to carry out a purpose, like protecting the home. You could not, for example, say that no one may have more than 50 books. But a law that said no one may possess more than 50 guns would -- would in fact be I think quite reasonable.
CHIEF JUSTICE ROBERTS: The regulation - the regulation at issue here is not one that goes to the number of guns. It goes to the specific type. And I understood your argument to be in your brief that because rifles and shotguns are not banned to the staple extent as handguns, it's all right to ban handguns.
Indeed. However if a legislative lays the proper predicate, has hearings and finds that semi-auto pistols are used disproportionately in violent crime, are generally more dangerous, and not well suited to self defense, would it then be arbitrary or capricious to ban them? I believe that would be the issue under Heller.
Well, if we're using arbitrary and capricious as a benchmark then we're back to rational basis standard of review. Scalia suggested that the standard is something other than rational basis, without specifying. I would hope that arbitrary and capricious, which puts the burden on the party arguing against the law, is not the standard we're left with.
As would I.
To rephrase my point, though Bill and John engage in a reasonable extension of the Heller rationale, the decision itself leaves room for governments to argue that their laws reflect legislative factual findings that are ordinarily entitled to some degree of deference from courts.
As to the level of scrutiny to be applied to infringements, I offer no insight except to note that it seems to be in a state of flux. Strict scrutiny used to signal that the law would be struck down (fatal in fact) and rational basis a signal that the law would survive. The court has indicated that it finds this problemmatic.
Johnska:
The strategy is now to establish the standard of review, and, hopefully, the court will evaluate the case under the hinted at strict scrutiny clause, and, in the dicta, I think there is enough comment on this for a lower court to establish that strict scrutiny is the intended standard.
Strict Scrutiny is:
http://law.jrank.org/pages/10552/Strict-Scrutiny.html
The Supreme Court majority really deserves reverence in preserving our rights, and, how they've handled this. It REALLY couldn't be any better. Their first ruling is getting everybody ready that the law is going to change, and, if you don't change it, the courts will. The second will establish the standard of review, and, once that's in place, pretty much all laws will have to be evaluated under this standard:
This will slowly give us the reduction of both state and federal law addressing firearms, and, will give legislators
pause when they consider new laws. Perhaps they will just move on, and start trying to control our lives and limit our freedoms in a different way...
The strategy is now to establish the standard of review, and, hopefully, the court will evaluate the case under the hinted at strict scrutiny clause, and, in the dicta, I think there is enough comment on this for a lower court to establish that strict scrutiny is the intended standard.
Strict Scrutiny is:
A standard of JUDICIAL REVIEW for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.
The strict scrutiny standard of judicial review is based on the EQUAL PROTECTION CLAUSE of the Fourteenth Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution.
The strict scrutiny standard is one of three employed by the courts in reviewing laws and government policies. The rational basis test is the lowest form of judicial scrutiny. It is used in cases where a plaintiff alleges that the legislature has made an ARBITRARY or irrational decision. When employed, the RATIONAL BASIS TEST usually results in a court upholding the constitutionality of the law, because the test gives great deference to the legislative branch. The heightened scrutiny test is used in cases involving matters of discrimination based on sex. As articulated in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), "classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives."
http://law.jrank.org/pages/10552/Strict-Scrutiny.html
The Supreme Court majority really deserves reverence in preserving our rights, and, how they've handled this. It REALLY couldn't be any better. Their first ruling is getting everybody ready that the law is going to change, and, if you don't change it, the courts will. The second will establish the standard of review, and, once that's in place, pretty much all laws will have to be evaluated under this standard:
presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.
This will slowly give us the reduction of both state and federal law addressing firearms, and, will give legislators
pause when they consider new laws. Perhaps they will just move on, and start trying to control our lives and limit our freedoms in a different way...
That's kind of a dicey interpretation, IMO.Notice that the Court did not specify "a handgun" but "his handgun." The 1911 is "his handgun." As is the Buntline.
He tried to register the Buntline, a revolver, and was denied. He sued and won. The ruling, when it referred to "his handgun" would naturally refer to the handgun that he initially attempted to register. It seems a stretch to say that it refers to a handgun that the court couldn't have even known that he owned when it made the ruling.
I think it means exactly what it says. Heller tried to register his handgun. The ruling says they have to let him register his handgun. Not "a handgun". Not "his handgunS", but "his handgun", i.e. the one that he tried to register and was denied.
The courts have said that it's okay for the government to regulate certain kinds of literature, media and printed material to some limited extent. For example, the Supreme Court ruled that the McCain Feingold restrictions on certain types of advertising during certain times is legal. In addition we all know that certain kinds of media and publications can be restricted due to content.So by that definition, it would be okay for the government to ban books and newspapers as long as they permitted magazines to be published?
Remember that the ruling discusses handguns as a general class of weapons but does not delve into the types or classes of handgun. So to make the analogy proper it would go something like this: "It would be ok for the government to allow books, newspapers and magazines but perhaps some laws might place restrictions on certain types of books."
If you think about it, that's exactly where we are right now...
That's exactly my point. To get where everyone else seems to be, one has to redefine categories instead of just reading the ruling for what it actually says.Redefine categories so that instead of "handguns", "rifles", etc. you have "revolvers", "semi-auto handguns", "bolt rifles", "semi-auto rifles", etc. Then re-apply the logic.
Here's what worries me about this whole thing. Everyone's treating this like a slam dunk but it looks more like a loooong three-pointer to me. And if we lose, then semi-autos are suddenly the new machine guns and Heller part 2 will turn into Miller part 2.
Interesting post on THR (also quoted by Al above). Apparently Alan Gura believes that the DC's actions are consistent with the ruling as it stands.
http://www.thehighroad.org/showthread.php?p=4718064#post4718064
He goes on to state "we do not believe that everything the city is doing is constitutional. Some of the city’s registration practices are clearly unconstitutional, as is the semi-auto ban. But these are not issues that can be resolved in the context of the current case. "
In other words, according to Gura, DC is not in violation of the Heller ruling but Gura believes their semi-auto ban and some of their registration practices are unconstitutional. Those issues would have to be resolved by a second suit and ruling.
http://www.thehighroad.org/showthread.php?p=4718064#post4718064
"However, the judgment in this case relates only to the provisions that were struck down, and the city appears to be complying with the literal command of the judgment."
He goes on to state "we do not believe that everything the city is doing is constitutional. Some of the city’s registration practices are clearly unconstitutional, as is the semi-auto ban. But these are not issues that can be resolved in the context of the current case. "
In other words, according to Gura, DC is not in violation of the Heller ruling but Gura believes their semi-auto ban and some of their registration practices are unconstitutional. Those issues would have to be resolved by a second suit and ruling.