D.C.'s proposed gun law is flatly inconsistent with the Heller decision

Great Debates
1

Let me preface this by saying that I am not a gun rights advocate. I despise handguns, and if I could push a Shiny Red Button to ban all handgun ownership in the United States, I’d do it in a heartbeat. So, I have a great deal of sympathy for D.C’s efforts to impose a de facto handgun ban in the city. But, damnit, we live in a nation of laws, and the Supreme Court said that our gun law was unconstitutional. In particular, the Supremes said that:

The Court also emphasized the importance of handguns as a convenient, readily accessible self-defense weapon in this earlier passage:

So - the Court has made it very, very clear that, regardless of what other restrictions on handgun ownership may be permissible, the District may not insist that handgun owners keep their guns locked or disassembled, as well as being unloaded, inside their own homes. This renders the handgun unfit for use as a self-defense weapon, which is the whole point (in the Court’s view) of the right to own the wretched things.

Tomorrow, the D.C. Council is considering - and will probably pass - the Firearms Control Emergency Amendment Act of 2008. (Available here: http://dc.gov/mayor/pdf/showpdf.asp?pdfName=7-14_Firearms_Control_Emergency_Amendment_Act-July14_DRAFT.pdf ). Among other things, the bill has this provision:

Now, I’ve racked my brains on this, and I welcome input from other Dopers, but I can’t parse this section to say anything other than, while you can’t store your gun assembled and unlocked, you’re welcome to throw it together really, really fast if you hear someone breaking into your house. I base this conclusion upon the use of the word “immediate”, which in a legal context usually means that a threat is right in front of you. Generally, for example, I can only use lethal force in self-defense against an “immediate” threat - that is, a person who’s threatening to kill me right then, as opposed to next week, or in twenty minutes.

If I’m reading this bill correctly, then it seems to be playing games with the Court’s decision - giving the appearance of addressing the Court’s desire to let people keep their guns ready for self-defense, while actually doing nothing of the kind. And that really pisses me off. Once the Supreme Court has spoken, that is the end of the matter, unless the Supremes agree to grant a rehearing (which is very rare). This is a very basic rule-of-law issue, and while I don’t like the Supreme Court’s decision in Heller, I would never want a local government to play these sorts of games with a decision I did like - Brandenberg, for example, or any other free-speech case that came on the free-speech side. This sort of gamesmanship on the District’s part, if they pass this bill, threatens the Supreme Court’s ability to protect all of our rights, not just the thrice-damned Second Amendment - and that’s why, even though I’m not friend of the NRA, I hope they rip the District a new one over this stunt.

However, I’m curious about the views of other Dopers - do you guys think the proposed law is consistent with Heller? Do you think it isn’t, but are willing to wink and shrug it off?

2

Apparently you are correct (and the DC Council are idiots, or hope the Court is). ISTM they are trying to rephrase their ban so that you would not be prosecuted for quickly re-assembling or unlocking your gun for purposes of self-defense. Whereas under the old law you would? That seems bizarre.

Bernie Goetz was convicted of possessing a gun that he was found to have used legitimately in self-defense, so maybe this is more of the same. “You needed the weapon, but you shouldn’t have had it anyway.” It’s stupid, but…

I suspect the DC council is going to keep passing amendments that don’t change anything and wait to be sued. Then enforce the ban while the lawsuit drags on, and then when it is overturned, do the same thing. I bet they can buy enough years until (they hope) Obama gets elected and puts some folks on the Court who will overturn the Heller decision. It’s a shameful waste of resources that DC should be using for better things, but when did common sense become a requirement for a DC politician?

Regards,
Shodan

3

The only difference between this proposed law and the previous one is that they added the provision for “self-defense”, which amazingly was not allowed before.

It gets better. Under DC law, automatic pistols (i.e., the handguns that are not revolvers) are considered automatic weapons, and therefore it is up for debate whether anything but revolvers will be permitted to be registered. It is also up for debate how many any one person can register, as DC has announced that, at least initially, only one will be permitted.

These guys are going to test the Supreme Court, and I don’t foresee it turning out well for them.

4

DC’s just rejecting the Supreme Court ruling. It happens. Remember, this is the same city that was trying to do house to house searches for illegal firearms, sans warrant?

I visualize National Guard troops on every corner, passing out handguns to children…

5

Why on earth would you find that inconsistent? It is perfectly logical that a person may use a weapon in self defense, but not have the right to carry/own said weapon. For example, a person previously convicted of a violent felony may have given up the right to own a firearm. But if attacked, and they draw an illegally owned gun, they may well still be acting in self defense.

6

How long do you think Obama will be President? The Supreme Court can’t reverse this decision for a long time, even if the composition changes and they dearly want to. If they start changing their minds every few years what kind of credibility will they have? If people believe that the fix is in, the Court won’t have any.

7

Why not? They don’t have to admit they are changing it - just pay lip service to stare decisis and then do whatever they want.

Plus, as mentioned, the DC council are idiots. They can stall indefinitely. Suppose Heller never gets overturned - they just keep passing the same ban reworded and enforce it while they litigate.

Regards,
Shodan

8

The interesting thing is that the self-defense provision, as I read it, doesn’t do anything other than allow you to assemble your gun when the burglar is more-or-less at your door - the “immediate” threat requirement. Glaringly, obnoxiously contrary to Heller.

9

In all fairness, the house-to-house searches were going to be consensual searches - officers asking people for consent to enter their homes. Still a horrible idea, not least because it’s unlikely people would have understood what a huge legal risk they were taking if they said “yes” (or that they’d understand they could say “no”), but the “Safe Homes Initiative” wasn’t going to involve stormtroopers kicking in doors sans warrant, or anything like that.

10

And did the previous ban really mean that you were not allowed to assemble or unlock a gun even if you needed it for self-defense?

Regards,
Shodan

11

Well, they can’t stall indefinitely. Eventually, if someone shows that DC has a very, very low likelihood of success on the merits of their case, they’ll have a good shot at a preliminary injunction barring enforcement of the wackier bits of the gun law. It’s tricky, because the likelihood of DC’s success on the merits would have to be very low to overwhelm the arguments DC would raise against a preliminary injunction (strong public interest, no irreparable injury to plaintiffs, etc) - but the courts are unlikely to be amused by DC’s gamesmanship here.

12

I don’t think that the Supreme Court will revisit this issue for a long time and I don’t see them reversing this decision anytime soon.

I think that the Council is pandering to the electorate. Since a pretty large majority of DC residents support the gun ban, the Council is simply pandering to what they think that the electorate wants. As to why they continue to do this, well they’ve already come up with a plan to fix the schools, the child and family services agency, and rest of DC’s ailments so what else do they have to do. :wink:

13

The Supremes clearly thought so, and I’m too lazy to go back and check their cite.

14

Couldn’t somebody force the issue - hang an assembled hunting rifle on the wall opposite their bay window, take a photo from the street, and take out an ad in the newspaper with the picture and a caption of “If the DC council tries to take my gun - me and the 2nd constitutional amendment will see them in court!”

15

Sure - but all Caffeine Addict was saying, I think, is that the Supreme Court is unlikely to address this issue again for a while. There’s a good chance that the test case you posited would be resolved at a much lower level - and remember, even if it were appealed all the way up, the Supremes don’t have to take any case they don’t want to.

That said, I do think we’re likely to see the Supremes take on some more cases on gun laws in the not-too-distant future. Heller is a really dramatic, fundamental decision, and it’s going to spark a lot of litigation - this increases the odds of circuit splits, and circuit splits have good odds of being resolved in the Supreme Court sooner or later.

16

It may turn out well for the next set of legal precedents nailing down the right to keep and bear arms. however. Judges tend to react poorly to monodigital salutes.

17

Isn’t there something to prevent this? Can the SC issue injunctions?

18

Not most of the time - they order lower courts to do so, and there’s nothing in Heller’s current procedural posture that would allow them to just jump in and do that, so far as I know. However, lower courts can issue preliminary injunctions, and in a case like this (where the law is so clearly contrary to the SC’s decision), it’s not unlikely that the US District Court for DC would do so.

19

What about the expiriation in 90 days provision? Could that give Heller time to register his pistol, then they close the door to new registrations making Heller’s case moot and make someone else start from scratch to register their pistol?

20

That probably can’t happen. The big point of the SC’s decision was that DC must allow gun registration. They can regulate it, and impose some conditions, but they have to do it. If DC said after 90 days, “sorry, but we need another week to come up with the new registration regulations”, that would probably be okay - I doubt anyone would sue, at any rate. But a more substantial delay, without damn good reason to show for it, would probably be contrary to Heller.