Heller II trial court rules for DC 3/26/10

[K-Romulus]

I searched but didn't see a thread on the original lawsuit.

Basically, the plaintiff in the groundbreaking Heller case (Dick Heller) sued DC for refusing to register AGAIN his .22 revolver. This time DC refused because the revolver wasn't on an "approved list." Heller and his co-plaintiffs challenged that and other DC gun registration hoops, such as the bans on "assault weapons" and standard capacity magazines.

The trial court this afternoon ruled in the city's favor before the trial even started. Basically, the court said that even if Heller's claims were factually correct, DC should win as a matter of law.

Upon consideration of the parties’ submissions, the court concludes that the regulatory provisions
that the plaintiffs challenge permissibly regulate the exercise of the core Second Amendment
right to use arms for the purpose of self-defense in the home. As a consequence, the court denies
the plaintiffs’ motion for summary judgment and grants the defendants’ cross-motion for
summary judgment.

I haven't read the whole ruling, but will try to take a look over this Passover weekend . . .

The next step for the plaintiffs is either to convince the judge to reconsider his ruling, or a straight appeal up to the DC Circuit where Heller I had its first victory.

ETA:

As I'm reading the opinion here is what I am seeing:

- the court uses "intermediate scrutiny" when evaluating burdens on the 2d Amendment

In sum, to assess the constitutionality of each of the challenged provisions, the court will
begin by determining whether the provision at issue implicates the core Second Amendment
right. If it does not, then the court will uphold the regulation. If the regulation does, however,
implicate the core Second Amendment right, the court will apply intermediate scrutiny to
determine whether the measure is substantially related to an important governmental interest.

- registration serves an important governmental purpose

Because the Council provided ample evidence of the ways in which the registration
requirements will effectuate the goal of promoting public safety, and because public safety is a
quintessential matter of public regulation, the court concludes that there is at least a substantial
nexus between the registration requirements and the important governmental interest underlying
those requirements.

- "assault weapons" bans are implemented after legislative fact-finding, so the court won't second guess that judgment despite what facts the plaintiffs have that say otherwise

The Council chose to ban assault weapons and large capacity ammunition feeding devices
after concluding that they are “military-style weapons of war, made for offensive military use.” . . . .

The Council held extensive hearings and heard from numerous witnesses
on both sides of the gun control divide before determining that assault weapons and large
capacity ammunition feeding devices constitute weapons that are not in common use, are not
typically possessed by law-abiding citizens for lawful purposes and are “dangerous and unusual” within the meaning of Heller.

and

The ban on large capacity ammunition feeding devices, on the other hand, imposes a
slight burden on individuals seeking to fire more than ten rounds of ammunition by requiring
them to pause for a few seconds to reload the weapon. This plainly does not render a firearm
“inoperable,” any more than the burden of having to pull the trigger repeatedly to discharge each
successive round of ammunition renders a semiautomatic firearm “inoperable” in comparison to
a fully automatic machine gun.

- As an item of note, Alan Gura, the 2d Amendment Foundation, and their associated plaintiffs withdrew from this case last summer. The remaining lawyers were Stephen Halbrook and Richard Gardiner.

 

[jjbduke2004]

I hope this is appealed. They forgot the phrase "arms in common use" in Scalia's opinion. If SCOTUS said you couldn't restrict "arms in common use" and handguns were deemed common use, then semiauto handguns (incl. those with hi-cap mags) must be in common use as well, after all revolvers (yes I own several) are not as common anymore.

 

[K-Romulus]

I hope this is appealed. They forgot the phrase "arms in common use" in Scalia's opinion. If SCOTUS said you couldn't restrict "arms in common use" and handguns were deemed common use, then semiauto handguns (incl. those with hi-cap mags) must be in common use as well, after all revolvers (yes I own several) are not as common anymore.

Yeah, the court's punting of the "in common use" fact-finding to the legislature seems to make the whole Heller test irrelevant. "Not in common use" is exactly what the DC council "found."

 

[jjbduke2004]

They're not in common use in DC (well legally, the gangs all have them), but they're in common use everywhere else.

“military-style weapons of war, made for offensive military use.” sort of defies US vs. Miller

 

[ezliving]

Federal judge upholds D.C. gun regulations; appeal expected



http://www.washingtonpost.com/wp-dyn/content/article/2010/03/26/AR2010032604527.html

 

[G O B]

I smell the overwhelming stench of mendacity !

 

[krucam]

Hypotetically (and just maybe I'm slightly biased), if I were a Heller-majority justice on the Supreme Court, these shenanigans would weigh heavily in my McDonald decision/opinion regarding a narrow, blanket incorporation ruling. I think I'd have to spell out what "Reasonable Restrictions" do and do not include...

 

[jpk1md]

The judge that issued this decision is apparently a well known leftist that was appointed by Clinton.....herein lies the power of the Executive branch to wreak damage well beyond their term of office.

 

[K-Romulus]

Here is a publicly available copy of the opinion, at the court's website: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1289-32

 

[WeaponsCollector]

Don't forget, in the supreme court Heller won by one vote.
If Obama is able to replace just one of the conservative majority in the supreme court with an anti-gun justice our gun rights are in big trouble. VERY big trouble.

 

[krucam]

Here is a publicly available copy of the opinion, at the court's website: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1289-32

I like how they referenced (Pg7) the following from Heller decision:

Additionally, the Court rejected the “interest-balancing inquiry” proposed by Justice Breyer in dissent. Id. at 2821. This “judge-empowering” standard is inappropriate, the majority concluded, because “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Id.
The Heller Court acknowledged that its opinion left “many applications of the right to keep and bear arms in doubt,” but stated that it intends to clarify the scope of the right in subsequent cases. Id.

Hello McDonald...

 

[krucam]

Don't forget, in the supreme court Heller won by one vote.
If Obama is able to replace just one of the conservative majority in the supreme court with an anti-gun justice our gun rights are in big trouble. VERY big trouble.

The 4 dissenters in Heller were Stevens, joined by Souter, Ginsburg, Breyer.

Souter out, Sotomayor in...a wash.

The most-likely Justice to retire next is clearly Stevens, also a Heller dissenter. The balance of power is safe for a while even with another Obama appointee...
http://thehill.com/blogs/blog-brief...s-hell-decide-on-retirement-in-the-next-month
http://en.wikipedia.org/wiki/John_Paul_Stevens

 

[WeaponsCollector]

I hope you're right. In a couple years anything could happen.

 

[Bob A]

Ricky Urbina was a Georgetown student when Clinton was there.

 

[jpk1md]

Ricky Urbina was a Georgetown student when Clinton was there.

A simple google search shows the above to be false..

http://www.dcd.uscourts.gov/urbina-bio.html

Judge Urbina is an appointment from the Clinton era.

 

[pilotguy]

Clinton graduated Georgetown in 1968. Urbina in 1967. It looks like they were there at the same time.

http://millercenter.org/academic/americanpresident/clinton

Education: Georgetown University (1968), attended Oxford University (1968-1970), Yale Law School (1973)

http://www.dcd.uscourts.gov/urbina-bio.html

"He received a B.A. in 1967 from Georgetown University and graduated from the Georgetown University Law Center in 1970."

 

[Bob A]

Not false. I met Urbina when I was in G'town. Clinton was also a student there at that time.

 

[Patrick]

Krucam: you are making me a believer that maybe they'll be less enigmatic in McDonald.

 

[jonnyl]

Krucam: you are making me a believer that maybe they'll be less enigmatic in McDonald.

Fingers crossed!!

The "public safety" argument drives me nuts! Too many people accept as fact that although they somewhat get the "right" to arms, that it is common sense that it needs to be balanced against public safety. They completely ignore the fact that there is not only no shred of evidence that gun control helps the public be safe, but quite a bit of evidence showing the opposite.

aaaarrrrrrgggggghhhhhh!!!

 

[krucam]

Fingers crossed!!

The "public safety" argument drives me nuts! Too many people accept as fact that although they somewhat get the "right" to arms, that it is common sense that it needs to be balanced against public safety. They completely ignore the fact that there is not only no shred of evidence that gun control helps the public be safe, but quite a bit of evidence showing the opposite.

aaaarrrrrrgggggghhhhhh!!!

Re-read the McDonald Oral arguments there's plenty of room for optimism and indications that the Justices aren't buying this, particulary regarding enumerated, Fundamental Right issues...
http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1521.pdf

they often mention the 'Mapp' case (Mapp v. Ohio), which was the incorporation of the 4A (Illegal Search/Seizure) in 1961...and the last BOR Incorporation case.
http://en.wikipedia.org/wiki/Mapp_v._Ohio

It is oft-mentioned that Mapp may have allowed many crimnals to "walk" due to illegally obtained evidence. Stevens (suprise) argued Mapp was only a "Procedural Right" ruling vs "Substantive Right" whereas McDonald as 2a is a "Fundamental Right".

Mapp was also a "complete" incorportation of the 4A, not limited or narrow. I believe they'll do the same when incorporating the 2A, particularly in light of DC's actions here with Mr. Heller.

Yeah...I'm optimistic. Besides the 'darling of the professorate' comments regarding Gura's PoI attempt...this is my favorite exchange from McDonald, Chicago's Feldman getting grilled:

JUSTICE KENNEDY: Without repeating that and just so I understand your position, how could some member of the Court write the -- this opinion to say that this right is not fundamental, but that Heller was correct?
MR. FELDMAN: I -- the Court would just say that what Heller held was if you look at the meanings that the words in the Second Amendment had, the common meaning -- as the Court said in the Heller opinion --the common meanings that the word had in 1791, it imposed limitation on the state. It took a preexisting right that had not been -- it was not codified in the Constitution, and it said, this self-defense right we need in the Constitution in order -- in order to protect the militia against being disarmed by the Federal Government.
CHIEF JUSTICE ROBERTS: That sounds an awful lot to me like the argument we heard in Heller on the losing side.

In Feldman's defense, he had one sucky job to do. I wouldn't have want to be in his position of arguing against Heller from 2 years ago, saying it was wrong. The words are clear and Chief Justice Roberts even rebuked Feldman.

The DC Heller 2 case will likely be appealed following McDonald. Don't expect anything before then. There will be an avalanche of cases coming forward in the June/July/August timeframe. They're probably already being written as I type.

Something tells me that Palmer v. DC (Bear Arms) may be held until McDonald is announced.

This decision, whether written by Scalia, Kennedy or Alito is going to go beyond the trimmed version of Heller. DC has sealed that fate by their 'Intermediate Scrutiny' which was really a 'Rational Basis' analysis. It was wrong, completely wrong given a Fundamental Right was at issue.

I'm sure either Scalia, Kennedy or Alito are 'aware' of this decision.

Pecking order of review are (low to high): Rational Basis - Intermediate - Strict Scrutiny.

I'll buy dinners for Patrick & c&rdaze if I'm wrong...
http://www.mdshooters.com/showthread.php?t=25131&page=28

2010 is going to be a great year...