Partial Win: Federal Court Rules Some DC Gun Laws Unconstitutional


By Johannes Paulsen via

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.

About the Author

Brandon is the founder of Concealed Nation and is an avid firearm enthusiast, with a particular interest in responsible concealed carry. His EDC is a Springfield Armory Hellcat OSP, with a Shield Sights RMSC Red Dot, that holds Hornady 165 gr FTX Critical Defense rounds, and rides comfortably in a Vedder Holsters ComfortTuck IWB holster.

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