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

I was just reminded that Peruta v San Diego arguments are also scheduled for 11/15/2010....

Fingers will definitely be crossed that day...

GOA Offering Arguments in Heller II Case Tuesday, November 9, 2010


Coming off some huge Election Day victories in the Congress, Gun Owners of America is now setting its sights on the courts.

A big battle will be taking place next week on Monday, November 15, at the United States Court of Appeals for the District of Columbia Circuit.

Both Gun Owners of America and Gun Owners Foundation are involved in challenging an extremely restrictive gun control law in a case known as Heller II.

After the District of Columbia lost its 2008 case in Heller I, the city council enacted a firearms registration scheme that was nearly as draconian as the original law, which the Supreme Court had struck down.

The Heller I decision in 2008 was monumental, as it paved the way for the Chicago verdict earlier this year -- which made clear that our Second Amendment rights apply throughout the entire country (not just in Washington, DC).

Gun Owners was also actively involved in the Chicago case, known as McDonald v. Chicago. This case is paying dividends, as recently as last month when a Wisconsin judge used the McDonald case to rule their ban on concealed carry unconstitutional!

The court said it "agrees with Justice Clarence Thomas's McDonald concurrence and application of the Fourteenth Amendment to this matter. In essence, no State shall abridge the privileges and immunities of citizens of the United States. As Justice Thomas demonstrates, the right to keep and bear arms is a fundamental right, not created by the Second Amendment, but secured or recognized by it."

This appeal to the "privileges and immunities" of American citizens is exactly the argument that Gun Owners made in its amicus brief before the McDonald court.

It was worth every penny that was spent on the Heller I and McDonald cases.

In Heller II, we are challenging the new DC gun law. After all, what good does it do if the Court says you have an "individual right" to own a gun, but the city in which you live is still allowed to impose draconian restrictions which will cost you hundreds of dollars just so you can exercise that right.

That’s why GOA is helping to challenge the DC law... and why we are so excited about the oral arguments that will be delivered to the court on November 15, almost two weeks after the election.

Gun Owners of America and Gun Owners Foundation are submitting an amicus brief in this case. This is an effort that you can help us with -- and it's a lot easier than you might think.

In many federal offices, there are subtle (and sometimes not so subtle) pressures to give to the Combined Federal Campaign. Your boss may think his prestige depends upon getting everyone to kick in. The same thing happens in all too many corporations during the United Way fundraising drive.

You may have wanted to give but couldn't find a group that wasn't attacking your rights, let alone defending them, on the list of participating organizations. But that has all changed!

Federal employees now are able to designate Gun Owners Foundation (GOF) as the recipient of their gifts to the Combined Federal Campaign.

Use Agency Number 10042 for Gun Owners Foundation when you make your Combined Federal Campaign pledge or donation. Your gifts will go toward helping us win cases like the Heller II case which is coming just around the corner.

Also, if you work for a company that participates in the United Way, you too may be able to designate that your gift be to Gun Owners Foundation. Many local United Way Campaigns allow Gun Owners Foundation to participate through their Donor Choice Programs. Some, however, do not. Check with your local United Way Agency. You will not only be helping people and protecting your rights, but you will also get a tax deduction.

One additional note. If you are employed by a corporation or organization which has a Matching Gift Program, please keep GOF in mind when making your donation. Contributions to GOF are tax-deductible.

Your support for Gun Owners Foundation helps us to offer quality briefs in defense of gun owners' rights. (You can read previous amicus briefs on the GOF site at gunowners.com.)

So please help the Second Amendment -- while making a tax-deductible contribution either through the CFC or the United Way. Of course, you can always donate online at the Gun Owners Foundation site: http://www.gunowners.com/donate.htm

Thank you very much.

http://gunowners.org/a.htm

3 days and change before Heller II gets Oral Arguments in the DC Circuit!

Monday, November 15th...

Second, and now Third hand info from Calguns on yesterday's oral arguments

Second hand reporting but there were two interesting things that came out. At least one of the panel seemed skeptical of the historical pedigree of registration (a pleasant surprise.) Also, one of the panel seemed to take seriously the argument that DC gun laws violated their statutory authority delegated from Congress which means this case could be decided our way without impacting 2A jurisprudence.

Only time will tell.
Gene

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From Pacer following yesterday's arguments:

11/15/2010 Open Document ORAL ARGUMENT HELD before Judges Ginsburg, Henderson and Kavanaugh. [10-7036]

11/16/2010 PER CURIAM ORDER filed [1277816] directing the parties to file supplemental briefs address four specific questions (see order for details of questions); The following format will apply: Supplemental brief for appellants (not to exceed 20 pages) due 12/01/2010; Supplemental brief for appellees (not to exceed 20 pages) due 12/08/2010; Reply brief for appellants (not to exceed 10 pages) due 12/13/2010. The United States is invited to file a brief, not to exceed 20 pages, on any or all of these questions by Friday, 12/03/2010. In addition to electronic filing, the parties are directed to deliver paper copies to the court on the date due. Before Judges: Ginsburg, Henderson and Kavanaugh. [10-7036]

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I can't find this "order" with the four specific question. There was no document link for the Per Curiam order on Pacer. It was just filed today, so maybe I'm just being impatient...

This tells me that this Circuit 3 Judge panel is at least taking this a step or two further than they did at the District level last Spring...speaking of which...

Hope springs eternal...

I'll throw this out on Calguns as well and hope to get a read...

All to be answered by mid-December.

Dollars to donuts the questions are focused on the legality of DC's laws in the face of Congressional oversight and intent. That could get real ugly. Not because of guns, but because of the whole "home rule" mess it would drag up.

But it would still be fun to watch and could pit pro-2A people on the same side as DC for a change, in a limited way.

Here is the Per Curiam Order and 4 questions....

So he's suing because he can't register the gun he already has?

admittedly i didn't read the last 3-4 pages...

Yup. Home rule. The court looks to be exploring a way around the whole 2A issue by saying DC's laws exceed Congressional authority under a 104 year old statute.

The Court's Questions:

(1) After the Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified at D.C. Code §§ 1-201.01–1-207.71 (2001)), do gun laws passed by the District of Columbia Council have to be “usual and reasonable” within the meaning of the federal Act of June 30, 1906, Pub. L. No. 59-401, which is currently codified at D.C. Code § 1- 303.43? Cf. McIntosh v. Washington, 395 A.2d 744, 749-54 (D.C. 1978); Firemen’s Ins. Co. of Washington, D.C. v. Washington, 483 F.2d 1323, 1327-28 (D.C. Cir. 1973); Maryland & D.C. Rifle & Pistol Ass’n, Inc. v. Washington, 442 F.2d 123, 125-29 & 125 n.9 (D.C. Cir. 1971); Fulton v. District of Columbia, 2 App. D.C. 431, 438-39 (D.C. Cir. 1894).

(2) What does the term “usual” mean in this statute? Cf. Roper v. Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002); Firemen’s Ins. Co., 483 F.2d at 1327-28; Glover v. District of Columbia, 250 A.2d 556 (D.C. 1969); Filippo v. Real Estate Comm’n of the District of Columbia, 223 A.2d 268 (D.C. 1966); Black’s Law Dictionary (2d ed. 1910) (defining usual to mean “ordinary” or “customary”). Is the canon of constitutional avoidance relevant to that question? Cf. Fulton, 2 App. D.C. at 438-39.

(3) Are the challenged D.C. laws “usual” within the meaning of this statute?

(4) Does the D.C. Court of Appeals’ interpretation of the congressionally enacted Act of June 30, 1906, or of similarly worded federal statutes, receive deference from the federal courts? Cf. Bliley v. Kelly, 23 F.3d 507, 511 (D.C. Cir. 1994). If so, under what circumstances?

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D.C. Code § 1- 303.43 (mirrored from the federal statute) reads:

The Council of the District of Columbia is hereby authorized and empowered to make, and the Mayor of the District of Columbia is hereby authorized and empowered to enforce, all such usual and reasonable police regulations, in addition to those already made under §§ 1-303.01 to 1-303.03 as the Council may deem necessary for the regulation of firearms, projectiles, explosives, or weapons of any kind in the District of Columbia.

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The key question the court wants explored is whether the prohibitions Heller is contesting are "usual and reasonable" under that statute. Here is an article from the Harvard Journal of Law and Public Policy that helps understand the basis of the question.

Page 202 said:

...
In short, if I could be persuaded to read the Second Amendment dynamically to create a right independent of the militia context, I would end up with something very close to Justice Scalia’s limitations on that right. It is also worth noting that a dynamic approach to tradition also suggests a statutory solution to the problem addressed in Heller. A superior route to the Heller result, from a legal point of view, would be a statutory argument of the following sort: Congress has plenary authority over the District of Columbia. In a 1906 umbrella statute, Congress exercised that authority to allow the District to enact “all such usual and reasonable police regulations . . . as they may deem necessary for the regulation of firearms, projectiles, explosives, or weapons of any kind in the District of Columbia.” In light of Congress’s 1932 Act and other statutes surveyed above, the District’s regulation of home use of firearms is neither “usual” nor “reasonable” under the 1906 statute. This would have resolved the case in a more rigorous legal way, would have protected the norm, and would have respected precedent as well as original meaning.

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I need to chew on this a little, but it looks like the judges do not want to be the ones who rule strict scrutiny is called for under Heller/McDonald. Their decision will be based on DC's laws compare with Congressional intent.

If that is true, such a decision could "split the baby" right down the middle: Heller might win, but everyone else in the nation has to sit and wait for yet another case to make this call. Meaning: not helpful to us. This would be absolutely brilliant on the part of the judges. Talk about a dodge!

The Ninth will be pissed. So will the Fourth...and the rest of the federal circuit. This punt can only work in DC.

But it also thrusts the onus of DC gun regulation right back to Congress and does not answer the question we want: what level of scrutiny applies the core of 2A?


EDIT: The more I think about it, the more likely they are not going to dodge 2A, but are maybe getting their ducks in a row. Curious what you all think.

Sev said:

So he's suing because he can't register the gun he already has?

admittedly i didn't read the last 3-4 pages...

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Heller II is concerned with (From Volokh):

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.

They may be avoiding a Constitutional Decision, instead relying on statuatory reasons for striking the unjust laws. There is a strange medium between Congress and the District of Columbia....
http://en.wikipedia.org/wiki/Constitutional_avoidance

Gray Peterson brought this up at Calguns. Interesting thought....

krucam said:

They may be avoiding a Constitutional Decision, instead relying on statuatory reasons for striking the unjust laws. There is a strange medium between Congress and the District of Columbia....
http://en.wikipedia.org/wiki/Constitutional_avoidance

Gray Peterson brought this up at Calguns. Interesting thought....

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That was the thrust of my first thought, too.

But after thinking it over, it would be hard to completely duck the 2A question. For instance, how can you define "reasonable" regulation of guns under Congressional authority without some lines drawn as to what is and is not..."reasonable". So to answer the question "Are these regulation usual and reasonable?" you need to talk about guns to some extent.

Unless...they point out that Congress does not ban these things and therefore DC cannot ban them either. That's the only way they can avoid the Constitutional questions. But it requires they stick to the question of "usual", not "reasonable". And in that case, DC's laws are not "usual" in the nation or in the Congress, and they exceed the level of policing that is typically used. Therefore, Heller wins but the rest of wait for another case.

Again...this might be a DC-only trick.



Twisted this is.

Sev said:

So he's suing because he can't register the gun he already has?

admittedly i didn't read the last 3-4 pages...

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As I understand it, he is suing based on the word "common". One of the results of Heller Part I was this ruling:

"DC has to allow guns in common use to be eligible for registration."

No debate, no compromise, this IS how it must be.

DC then passed registration regulations that forbids 'assault weapons' and 'large' capacity magazines. Heller wanted to register a handgun with a capacity higher than 10. His contention is +10 mags are common. Which by sales and usage, and I am pretty sure is true.

More so this case brings into light the registration process which for the average person that would like one gun for home defense, which was the point of Heller I, it is prohibitively difficult and expensive.

TBH if I had to start the new process over, I would not bother. I registered my shottie before Heller, so it was easier. A new potential handgun owner is looking at FFL transfer fee ($125), training, time, travel, a shooting test, a written exam, ammo, mucho paperwork, passport photos, fingerprints, background check, gun ballistics, and registration fees. Conservatively registration is easily north of $500 NOT including a gun.

Patrick said:

That was the thrust of my first thought, too.

But after thinking it over, it would be hard to completely duck the 2A question. For instance, how can you define "reasonable" regulation of guns under Congressional authority without some lines drawn as to what is and is not..."reasonable". So to answer the question "Are these regulation usual and reasonable?" you need to talk about guns to some extent.

Unless...they point out that Congress does not ban these things and therefore DC cannot ban them either. That's the only way they can avoid the Constitutional questions. But it requires they stick to the question of "usual", not "reasonable". And in that case, DC's laws are not "usual" in the nation or in the Congress, and they exceed the level of policing that is typically used. Therefore, Heller wins but the rest of wait for another case.

Again...this might be a DC-only trick.

Twisted this is.

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I hear you! And this 'Constitutional Avoidance' question was only posed by one person, albeit a VERY knowledgeable person IMO.

I would love this "kitchen sink" case to come out with Constitutional related jurisprudence vs Statutory...but again, a win is a win.

Patrick said:

Heller II is concerned with (From Volokh):

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

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Self loading handguns are legal and can be registered in DC. I have Approved papers for them. However ANYTHING rifled more than 10 rounds is a machine gun, unless it is a tube fed .22.

Yup...10 round max, AR's in general, onerous registration requirements....all being fought in this one. The complaint is one page back as a pdf.

So, so much going on right now! We're going to have a party real soon...

krucam said:

I hear you! And this 'Constitutional Avoidance' question was only posed by one person, albeit a VERY knowledgeable person IMO.

I would love this "kitchen sink" case to come out with Constitutional related jurisprudence vs Statutory...but again, a win is a win.

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I'm one mind with Gray on this one. My first post (pre-edit) was that it looks like the court was leaning our way but wasn't doing it the way we wanted. The regulations Heller is contesting are unusual on the average. As long as they avoid the "reasonableness" questions (those would involve some type of standards analysis), they can skip the constitutional issues almost entirely.

So the top two options are basically "they will side with Heller on a statutory basis"; or "they will decide something using both constitutional and statutory guidance". In which case, these questions are there to better complete the record.

Realistically, I don't think they be putting counsel through the wringer again just to complete the record. They are almost surely trying to avoid the constitutional questions.

That trick cannot work in MD, though. Nor Palmer.

And absolutely...a win is a win.

Patrick said:

That trick cannot work in MD, though. Nor Palmer.

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Don't be too sure about it not helping in Palmer. Remember, DC's carry ban flows from the City Council, which flows from the Congressional authority granted in here. My only concern is that this may give further excuse to Judge Kennedy to continue delaying the ruling.

Probably all old news by now.....

.....but this is "from the horse's mouth" so to speak.....

Dear Folks,

The HELLER II case was heard on Monday 11/15/10.
I am sending you 2 E-mails.

1.

The first is from my atty who argued for Heller II yesterday in the Appellate Court shows that the 1906 legislation perspective remains important today.


Info is on the www.HellerFoundation.org website.

The Site is still in update mode "as we speak"....

2.

The following amicus links relates to the 1906 Firearms law concepts that might be helpful in VA & MD.

pages 2-20 1906 laws - "Usual & Reasonable"

http://www.nraila.org/heller/proamicusbriefs/07-290_amicus_congress.pdf


pages 5-10

http://www.stephenhalbrook.com/law_review_articles/secondamendment.dc.pdf

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