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Heller II suit is filed:

On Monday, Dick Heller and two other plaintiffs filed suits against the District of Columbia's revised gun laws. The complaint challenges the following provisions of D.C. law:

The ban on all self-loading handguns (about 3/4 of handguns sold in the U.S.) by defining them as "machine guns."

Allowing registration only upon the payment of an unspecified fee for ballistic testing of the handgun.

The self-defense provision in the D.C. law which allows a gun in the home to be loaded, unlocked, and rendered functional only "while it is being used to protect against a reasonably perceived threat of immediate harm to a person within the registrant's home." The exception is too narrow, and burdens the right of self-defense.

The complaint further alleges that the aforesaid provisions are not only violations of the Second Amendment, they exceed the non-infinite home rule powers which Congress delegated to the District's city council.
There are some other problems with the new D.C. law. Handgun possession is allowed only for a person who wants the handgun for home defense; it is illegal in D.C. to acquire a handgun for recreational target shooting, to practice marksmanship before enrolling in the military or joining a police department, or for lawful hunting Maryland or Virginia. The only time that a gun can be unlocked is when it being used for self-defense against an immediate attack; accordingly, it is illegal to remove the lock from an unloaded gun in order to clean the gun. The problem would be resolved by the requested relief of enjoining all enforcement of the gun lock law against defensive firearms.

Attorneys in the case are Stephen Halbrook and Richard Gardiner, of Fairfax, Virginia. They both been involved in firearms law and policy for three decades, and they are excellent lawyers. Halbrook has a 4-0 record as lead counsel in Supreme Court cases.

Nate in Alice:
How obnoxious. The least they could do is file a complaint from a state, so we could resolve that issue.
7.29.2008 4:21am
Gene Hoffman (mail) (www):
NRA has already filed 3 cases that survive in the States before this. 2 cases didn't survive because the localities rescinded their laws.
7.29.2008 4:52am
Nate in Alice:
Yes, but did they find a Plaintiff who goes by the name of Heller?
7.29.2008 5:10am
Brett Bellmore:
Some consolation to Halbrook for having his attempt to elbow into the Heller case rebuffed.
7.29.2008 9:16am
Helen:
The right to own a firearm for target shooting doesn't seem to me to be the sort of thing that is generally protected by the Bill of Rights, unless we want to take the 9th seriously. But it certainly would be very welcome to see such protection.

There are many state laws that prohibit purchase and possession of the firearms appropriate for various shooting disciplines. Start with the state level "assault weapons" bans, which survive the expiration of the federal ban in several states. Among the firearms usually banned is the AR15, which is the most common centerbore used at Camp Perry. Yes, there are variants with non-folding stocks made for the folks trapped in those states, but new models are not being developed and introduced.

Additionally, Massachusetts effectively banned high end target pistols (such as those used by Olympic shooters) until Governor Romney signed a repeal among his last acts in office. Essentially MA requires that the manufacturer of any firearm offered for sale in the state submit three samples for "safety testing," which is destructive. For a very expensive firearm that has an extremely small market, it is not worth the expense for the manufacturer to do this. Massachusetts still bans, I believe, the single action revolvers used in "Cowboy Action" shooting events. Maryland bans any handgun without an integral locking mechanism -- thus outlawing many competitive models in a lot of disciplines.

And New Jersey's "smart guns" law will outlaw virtually all appropriate competitive pistols when it goes into effect. (It had an exception written into it, but it was removed at the last minute after the press exposed some of the backroom stuff going on at the legislature. We now know -- but did not know then -- that some people were flexing their muscles to show then Governor McGreevey that they could get anything they wanted to into the newspapers -- and Gov. McGreevey was still trying to keep a big secret -- so he caved.)

But, digression aside, a recognized right to own a firearm for recreational purposes would threaten a lot of these laws. I also think that these are the laws that frustrate and annoy legitimate gunowners the most -- not the Brady check or any permitting or registration requirement.

One simple approach would be to repeal the federal law requiring the purchase of firearms in your home state and allow anyone to purchase elsewhere, provided he demonstrated that he had access to safe storage in a legal location. It would even work to notify the authorities in the purchaser's home state, and that would probably prompt a letter reminding him that it was illegal to bring his AR15, or whatever, into the State. But, it's also none of a state's business what its residents do when they're out of state. So fas as I know the Gun Control Act of 1968 is the only federal law that limits the actions of a resident of a particular state when he is not physically located in that state.
7.29.2008 9:43am
Brett Bellmore:

The right to own a firearm for target shooting doesn't seem to me to be the sort of thing that is generally protected by the Bill of Rights,


Does the First amendment protect the right to discuss the weather? I think the proper approach here, and it seems the one Scalia was taking, is that it's a right to keep and bear arms for ANY legitimate purpose, where self defense was merely a quintessentially legitimate purpose.
7.29.2008 10:00am
PersonalResponsibility:
Hellen, your opening sentence is incorrect. The Scalia Opinion on the Heller case specifically included the language "...lawful purposes, such as self defense..." and the like. Accordingly, target shooting, being a lawful purpose, is most certainly protected by the 2nd.
7.29.2008 10:04am
Jim at FSU (mail):
RKBA runs to any lawful use of the right, just as the rights to free speech and assembly run to any otherwise lawful exercise of those rights.

Any restriction upon such a right needs to be tied to some compelling government interest and so narrowly directed as to be the least burdensome means of pursing that interest.

The vast majority of these gun-owner-harassment laws are not directed at any compelling government interest at all. Rather, they are directed towards discouraging ownership of firearms as the end itself. I would hope that enumerating a right as protected from government interference precludes the government from using hostility to that right as the justification for placing burdens upon it.
7.29.2008 10:23am
Yankev (mail):
Helen, how can anyone use a firearm in self defense if she can't hit what she is shooting at? Or if he is so unused to handling the firearm that he fumbles when loading it, removing it from the holster or case, or deactivating the safety? Like any other skills, don't these need to be practiced?
7.29.2008 10:23am
taney71:
I believe Heller was denied his gun license.
7.29.2008 10:24am
Brett Bellmore:
I think he was permitted to file for a revolver, and denied for a semi-automatic pistol, and is suing on the basis of the latter denial, and on the basis of the absurdly onerous requirements for getting the former.
7.29.2008 10:30am
ruralcounsel (mail) (www):
What appears to be hypocritical to me is that target practice is an activity that the banners think they can control and forbid, and yet one of their biggest gripes is that gunowners don't have to have enough training, practice, or display competence with the weapons in question. So will DC allow you to have a firearm for the purposes of training or instructional classes? Or do they prefer all home gunowners to be untrained and unpracticed, to insure that the home accident statistics get max'd?

A logical argument can be made that firearms practice is an integral and important part of responsible firearm ownership for self-defense purposes.

But then, I guess we always knew this debate had nothing to do with safety, logic, or "reasonable restrictions". It was always about power and prohibition.

Say, at what point does DC become so obstructionist that the DC pols and police could actually face personal liability, because their actions are so deliberate and knowingly illegal that they lose immunity? Even "absolute immunity" isn't totally absolute, right? Are we going to have to send the National Guard into DC to enforce the law? (Shades of Little Rock!)
7.29.2008 10:31am
Charlie (Colorado) (mail):

I believe Heller was denied his gun license.


Heller was denied a license for his service automatic under the "machine gun" restriction, but not for a .22 revolver.
7.29.2008 10:32am
Houston Lawyer:
I'd hardly call a .22 revolver a self-defense weapon. You'd have to hit a vital organ for it to work and since DC makes it illegal to practice, that is not likely.

Perhaps a federal judge should enjoin Washington DC from enacting any restrictions on gun ownership without his prior approval. It appears that all of the judicial powers used to integrate schools may need to be applied.
7.29.2008 10:43am
pmorem (mail):
In sum, we hold that the District's ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.


Doesn't "his handgun" refer to his service automatic?

How is that anything other than a direct court order?
7.29.2008 10:46am
Jace:

A logical argument can be made that firearms practice is an integral and important part of responsible firearm ownership for self-defense purposes.


As an NRA member and enthusiastic shooter I support this. More rounds down range equates to great safety and proficiency.
7.29.2008 10:52am
luagha:
How is one going to become 'well-regulated' if one doesn't practice?
7.29.2008 11:09am
Yoda:
So am I correct that, in DC's interpretation, the DC Metro Police Department are therefore all walking around with "machine guns" in form of their 9mm Glocks, strapped to their hips? And they don't see the absurdity of this contention?
7.29.2008 11:12am
Tatter (mail):
"What appears to be hypocritical to me is that target practice is an activity that the banners think they can control and forbid, and yet one of their biggest gripes is that gunowners don't have to have enough training, practice, or display competence with the weapons in question."

Yes, it is. Unfortunately, hypocrisy in the service of leftist agendas is a virtue these days, indeed a cornerstone of progressivism. Many progressives are actually proud of their ability to condemn anyone (else) they want, for mutually exclusive reasons. They can even bash people for being either homosexual or heteronormative (meaning "not homosexual"), even both in the same sentence with neither irony nor sarcasm intended.

Welcome to 1984, where doublethink is every citizen's duty.
7.29.2008 11:13am
ThomasD (mail):
My understanding is that Heller was not so much denied a license for his .45 ACP, instead he was prevented from even attempting to license it. Under the current regime he is required to present himself with the weapon when applying for licensure. Unfortunately the current regime also deems that weapon an illegal 'machinegun' and not subject to licensure. Meaning, had he chose to present himself with the weapon it was likely to be seized.
7.29.2008 11:15am
postroad (mail) (www):
the guys who don;'t read this stuff are like the guy that killed yesterday in the church in Tennessee. regulate not just a milita but also those who get access to guns. If you can control who gets to register and drive a car, mostly, then why not guns? ps: I don't own or like guns but have fired many in a few stints in the military.
7.29.2008 11:39am
Per Son:
On a small side note - do most gun owners practice on a different gun than they use for protection?

I have one gun - although it is locked away at my inlaws' house (waiting for the DC laws to be cleared up).
7.29.2008 12:02pm
pete (mail) (www):

If you can control who gets to register and drive a car, mostly, then why not guns?


The government does not get to control or register who gets to own or drive a car on their private property, only on public roads. This has been gone over so many times I can hardly believe people are still bringing it up.

And people with felony convictions and mental disorders can be regulated as even Scalia said in his Heller opinion if I remember correctly. The burden needs to be on the government to show why a person should not be allowed to own a gun. Anything more than requiring a person to pass a reasonably fast background check switches the burden to the citizens when it should be on the government as should all burdens that comes from restrictions on our rights.
7.29.2008 12:26pm
ed (mail) (www):
Hmmmm.

@ postroad

"the guys who don;'t read this stuff are like the guy that killed yesterday in the church in Tennessee. regulate not just a milita but also those who get access to guns. If you can control who gets to register and drive a car, mostly, then why not guns? ps: I don't own or like guns but have fired many in a few stints in the military."

Because there's no Constitutional Right to a **car**.

How about this. Since you're ok with DC restricting a widely recognized Constitutional Right let's apply it to you.

Report to your local municipal government for a permit to speak. Those topics and issues, along with specific words, that are forbidden will be listed on your permit.

After all. People have to register for a damn car, why not speech?
7.29.2008 12:52pm
AKD:

On a small side note - do most gun owners practice on a different gun than they use for protection?


No. Most practice with the firearm they depend on for protection. Those who don't practice with their defense firearm are probably those who don't practice much at all with any firearm.
7.29.2008 12:54pm
zippypinhead:
My understanding is that Heller was not so much denied a license for his .45 ACP, instead he was prevented from even attempting to license it. Under the current regime he is required to present himself with the weapon when applying for licensure. Unfortunately the current regime also deems that weapon an illegal 'machinegun' and not subject to licensure. Meaning, had he chose to present himself with the weapon it was likely to be seized.

There's an interesting standing issue here. If Dick Heller did not actually attempt to register his semi-auto M1911, it's not clear to me that he has standing to challenge the law. You will recall the original Parker v. D.C. case lost all but one plaintiff because nobody had actually attempted to register anything.

The new complaint avers that Heller did attempt to register the M1911 on July 17, but press coverage suggests he did not follow the specified procedure for doing so and therefore was sent away on purely procedural grounds. Heller reportedly showed up on day 1 without any gun to register, but wanted to start the paperwork for his M1911. He was told he needed to present the actual firearm for testing, and was sent away. He said he would come back another day. He was either told orally by the MPD Lieutenant in charge of firearms registration, or the Lieutanant told the Washington Post (it wasn't clear from press reports), that if he showed up with the M1911 it would be confiscated and MPD would consider opening a criminal investigation of Heller for possession of a "machinegun." However, when Heller eventually returned a few days later to follow the specified procedure to hand in the actual firearm, he came with his .22 revolver instead.

So I would expect D.C. to file a motion to dismiss based on Heller never actually attempting to register a "machinegun." I don't know if the other plaintiff who allegedly attempted to register a semi-auto presented the actual gun or not, but if he also failed to follow the specified procedure, he might also have a problem, unless the court finds that the procedure itself is illegal, or if D.C.'s announced intention to seize semi-automatic pistols is enough to confer the actual injury necessary for standing?

Stay tuned...
7.29.2008 12:55pm
pintler:

What appears to be hypocritical to me is that target practice is an activity that the banners think they can control and forbid, and yet one of their biggest gripes is that gunowners don't have to have enough training, practice, or display competence with the weapons in question. So will DC allow you to have a firearm for the purposes of training or instructional classes? Or do they prefer all home gunowners to be untrained and unpracticed, to insure that the home accident statistics get max'd?


Considering the TSA holster fiasco, I think your last sentence is quite possible.


On a small side note - do most gun owners practice on a different gun than they use for protection?


I can't speak to 'most', but it is certainly common to use a .22 for much of one's practice - the ammunition is a fraction of the cost, and the reduced recoil is helpful, especially for beginners, and the skills are the same.
7.29.2008 1:01pm
Melancton Smith:
I would think that their statement that he would be arrested for attempting to register the "machine gun" is sufficient grounds for standing. I don't believe he actually has to be arrested.
7.29.2008 1:04pm
Dennis Nicholls (mail):
Scalia's opinion clearly stated that DC must register Mr. Heller's gun.

Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."

Slip Op. pp 64

Why didn't the USSC simply issue a Writ of Mandamus forcing this?
7.29.2008 1:28pm
Dennis Nicholls (mail):
Scalia's opinion clearly stated that DC must register Mr. Heller's gun.

Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."

Slip Op. pp 64

Why didn't the USSC simply issue a Writ of Mandamus forcing this?
7.29.2008 1:28pm
zippypinhead:
Melancton Smith wrote:
I would think that their statement that he would be arrested for attempting to register the "machine gun" is sufficient grounds for standing. I don't believe he actually has to be arrested.
The problem here is that there was never an unequivocal announcement that he would actually be arrested, only that D.C. would consider opening a criminal investigation at a later date. The only unequivocal statement was that Heller's M1911 would be confiscated, which if it had actually happened, would be enough to confer standing. Here, Heller actually brought in and (we assume) successfully registered a legal revolver, so one might argue there was no infringement.

But keep in mind this impacts only one count of the suit -- the other counts challenging the disassembled/unloaded rule and the no non-defensive use prohibition apply to Heller's .22 and any other citizen with a registered handgun.
7.29.2008 1:33pm
zippypinhead:
On a small side note - do most gun owners practice on a different gun than they use for protection?

I can't speak to 'most', but it is certainly common to use a .22 for much of one's practice - the ammunition is a fraction of the cost, and the reduced recoil is helpful, especially for beginners, and the skills are the same.
Some people will get "matching" .22 versions of their larger-caliber defense guns for practice, which lets them have much of the benefit of practicing with the larger gun without the cost. In fact, one can purchase .22 conversion kits for Mr. Heller's M1911 from Kimber and a number of other high-quality manufacturers. The kits are so simple that most people can do the conversion themselves, and later restore the firearm to its original configuration. The biggest attraction is that .22 LR rimfire ammo costs as little as 1/10 the amount you have to spend on .45 ACP or other large-bore ammunition.

Having said that, however, you DO need to practice with the exact gun you would use for self-defense, and with the same ammunition load you will use for defense. If you don't know how your gun handles, the recoil, the point of aim, etc., you're asking for trouble when you have to use it in a big hurry in a stressful situation. Unfortunately the cost of ammunition has gone up so much recently that if you're got a .45, it's going to cost you at least $20 to go to the practice range for an hour and put 50 rounds downrange. And it might be up to twice that cost if you're using a high-quality defensive load. Add range fees and travel cost/time (since there aren't any public ranges in D.C. to my knowlege), and an afternoon of practice can get pretty pricey. But it's necessary.
7.29.2008 1:50pm
Curious:
I'm with Dennis Nichols... why is Heller back in the lowest court? Couldn't he just ask the Supreme Court or the DC Circuit for a mandamus? DC is patently defying those courts' rulings and the changes in DC's regulations are clearly cosmetic, there's no need for additional fact-finding...
7.29.2008 2:04pm
zippypinhead:
Dennis Nichols and Curious, I think the reason Dick Heller had to file a new suit was nicely summed up by David Hardy on his blog, Of Arms and the Law:
Heller has to file a second suit, since his first one alleged that he wanted to possess a revolver, so whether DC's ban on semiauto pistols is unconstitutional wasn't an issue and wasn't ruled upon. Logically, it stands to reason that a ban on semiautos -- the majority of pistols made todqy -- would be about as invalid as a ban on all pistols, but that wasn't within the first appeal or the Supreme Court ruling, and can't be settled without another suit with a chance for DC to defend.

Mandamus might have been appropriate if D.C. had failed to act at all, or figuratively "blocked the schoolhouse door" to forbid compliance. But because D.C. nominally attempted to "comply" with the Supreme Court's ruling, there are questions of fact as to whether its actions were, in fact, adequate to do so.
7.29.2008 2:38pm
George Lyon (mail):
There is little purpose in having a gun for self protection and not practicing with it.

I practice on both of my DC registered guns, as well as with the semis DC won't let me register which I keep out of the city.
7.29.2008 2:52pm
Russ (mail):
The new DC law is designed to be a practical ban while skirting the technicalities of what the Supreme Court said.

Gun control folks should be very careful or this kind of nonsense will lead to a ruling on guns they like even less. And SCOTUS doesn't like getting the finger flipped in its face...
7.29.2008 5:20pm
PubliusFL:
Any chance of the District Court granting a preliminary injunction against enforcement of the exclusion of "machine guns" from DC's registration scheme, given Heller's history and the thinness of the ice on which DC is skating?
7.29.2008 6:06pm
zippypinhead:
PubliusFL asked:
Any chance of the District Court granting a preliminary injunction against enforcement of the exclusion of "machine guns" from DC's registration scheme, given Heller's history and the thinness of the ice on which DC is skating?
There's a chance. The new suit seeks both preliminary and permanent relief. Perhaps the biggest practical impediment to the court acting quickly on the PI request is that the challenged law is only 90-day "emergency" legislation that supposedly will be replaced with a permanent ordinance sometime after Labor Day. Also, The Hill reported yesterday that John Dingell and John Tanner (Dem. NRA friends) are working on some sort of deal re: the pending D.C. gun law override bill. So there's a chance Congress may act, too.

Roll it all together, and a workload-minimizing jurist with summer vacation plans might want to just let this one run at a non-expedited pace for a while to see if the grounds for suit go away or are narrowed by the permanent legislation or Congressional action.
7.29.2008 7:31pm
PubliusFL:
zippypinhead: a workload-minimizing jurist with summer vacation plans might want to just let this one run at a non-expedited pace

Good point about that potential, well, venal consideration. But a competing one might be indignation at a litigant who recently lost in your court, fought all the way to the Supreme Court only to lose there too, and who is now back in your court thumbing his nose at you by doing his best to pretend that he never lost in the first place. ;)
7.29.2008 8:11pm
Helen:
PubliusFL:

This action has been filed in the District Court, where the original winner was DC, and Heller and his co-litigants were originally the losers. So, the litigant who is back after having lost in this court is Heller. Heller and his co-litigants won at the Appeals Court level, and, of course at the Supreme Court.
7.29.2008 9:31pm
Brooks Lyman (mail):
Helen:

Massachusetts effectively banned high end target pistols (such as those used by Olympic shooters) until Governor Romney signed a repeal among his last acts in office. Essentially MA requires that the manufacturer of any firearm offered for sale in the state submit three samples for "safety testing," which is destructive. For a very expensive firearm that has an extremely small market, it is not worth the expense for the manufacturer to do this.

Yes, that law was passed, putting in place a roster of target firearms. Unfortunately, the Attorney General's office managed to subvert the process such that, a year later, there are only 2 guns on the list - .45 autos used in combat-style target shooting. All the good Olympic-class target pistols (mostly .22LR) are still unavailable in MA....
7.29.2008 10:03pm
zippypinhead:
OK, so maybe I was being a bit snarky suggesting the judge with the new Heller case might stall the case for vacation reasons. Minimizing unnecessary work, however, would be a legitimate reason to not get too far ahead of the relevant legislative branches, who may moot at least some of the case in the next couple of months.

District Judge Ricardo Urbana was initially assigned to the new Heller case (although having filed my share of cases in D.D.C., I know initial assignments off the wheel in that District can change, occasionally for no apparent reason). Judge Emmet Sullivan had the original Parker v. D.C. case, and it's interesting the new case wasn't (yet) designated as related, either by a party or sua sponte by the Clerk's office. Thus, at least it may not end up back before the original District Judge who was so roundly repudiated. But Judge Urbina, a Clinton appointee who cut his teeth at the public defender's office, isn't exactly a raging conservative (to put it mildly). In fact, I can think of only a couple of judges in D.D.C. who might be WORSE than Urbina to draw this case -- one might reasonably assume his default sympathies will lie with the D.C. local government's position. If Heller's case was, say, on the other side of the Potomac in E.D.Va.'s Alexandria Federal courthouse, I'd say he had a slam-dunk winner. But in D.D.C. before Urbina? Don't bet the ranch, as they say. Maybe the Supreme Court's rather clear teachings will overcome his natural instincts. Or not. We'll see...
7.29.2008 10:17pm
Thomas Hart (mail) (www):
Maybe I'm stupid or something, but how can a law that mandates what I do in my house possibly be enforced? They can't just come into the house to check that my gun is not loaded, so is that part of the law even enforceable?
7.29.2008 10:37pm
elscorcho (mail):
How do privacy laws that protect vibrators and homosexuality not apply to guns and drugs in one's own home?
7.29.2008 11:58pm
FlimFlamSam:
Elscorcho,

Drugs are considered to be contraband, and there is a wealth of precedent that contraband is not protected by any right to privacy. (However, the right to privacy might, in some cases, prohibit the authorities from discovering that you have contraband.) But there might very well be a right to privacy encompassing the right to keep firearms in the home. Firearms are not (generally) contraband.
7.30.2008 8:14am
Some Dude (mail):
If this case is before Urbina, Heller will lose.

I've never seen a judge as ideological as Urbina before. Though, to be fair, I try to keep cases out of DC as much as possible.And as far as legal talents go, well, he was able to get a job teaching at Howard after being a PD, so he had that going for him...

Fifth Circuit FTW!
7.30.2008 10:40am
elscorcho (mail):
FlimFlamSam,

I believe that vibrators were considered contraband (in certain jurisdicitons) before right to privacy ruling by the supreme court.
7.31.2008 3:49am