Court Dismisses "Heller II" Case

[Tim Nunan]

Court Dismisses "Heller II" Case: D.C. Gun Registration, "Assault Weapon" Ban, and "Large" Magazine Ban Upheld

http://www.nraila.org/Legislation/Feder ... px?id=5645

Friday, March 26, 2010

Today, District Judge Ricardo M. Urbina, of the U.S. District Court for the District of Columbia, dismissed Heller v. District of Columbia, NRA's case challenging D.C.'s prohibitive firearm registration requirements, and its bans on "assault weapons" and "large capacity ammunition feeding devices." Mr. Heller was, of course, lead plaintiff in District of Columbia v. Heller, decided by the Supreme Court in 2008.

Judge Urbina rejected Heller's assertion that D.C.'s registration and gun and magazine bans should be subject to a "strict scrutiny" standard of review, under which they could survive only if they are justified by a compelling government interest, are narrowly tailored to achieve that interest, and are the least restrictive means of achieving that interest.

In support of that rejection, Urbina opined that in District of Columbia v. Heller (2008) the Supreme Court "did not explicitly hold that the Second Amendment right is a fundamental right," and he adopted the argument of dissenting Justices in that case, that the Court's upholding of a law prohibiting possession of firearms by felons implied that the Court did not consider that laws infringing the right of law-abiding Americans to keep and bear arms should be subject to a strict scrutiny standard of review.

Judge Urbina also rejected D.C.'s contention that its laws should be required to pass only a "reasonableness test," which would "require the court to uphold a law regulating firearms so long as the legislature had 'articulated proper reasons for acting, with meaningful supporting evidence,' and the measure did 'not interfere with the "core right" the Second Amendment protects by depriving the people of reasonable means to defend themselves in their homes.'"

Instead, Urbina purported to subject D.C.'s registration, gun ban, and magazine ban to an "intermediate scrutiny" level of review, in which he first considered whether those laws "implicate the core Second Amendment right" and, if they do, whether they are "substantially related to an important governmental interest."

Urbina agreed that D.C.'s firearm registration scheme implicates the "core Second Amendment right," which, based upon the Supreme Court's decision in District of Columbia v. Heller (2008), he described as the right to have a firearm at home for protection. But, he noted that the Court "suggested in Heller that such requirements [as registration] are not unconstitutional as a general matter," and he concluded that D.C. had adequately articulated a compelling governmental interest in promulgating its registration scheme.

Based upon the Supreme Court's statement in Heller, that machine guns might not fall within the scope of the Second Amendment because they are not commonly owned, and relying heavily on error-ridden testimony provided by D.C. and the Brady Campaign about the use of semi-automatic firearms in crime, Urbina concluded that D.C.'s "assault weapon" and "large" magazine bans do not infringe the right to have a firearm at home for protection.

Regrettably, Urbina uncritically accepted all of the "factual" claims in the committee report of the D.C. City Council and ignored hard evidence that "assault weapons" and "large" magazines are in "common use," the standard Heller adopted. As we have detailed in other Alerts, of course, such firearms and their standard magazines holding over 10 rounds are owned by millions of Americans and their numbers are rising rapidly with every week that passes.

Stay tuned. Word about whether Judge Urbina's decision will be appealed, or whether a legislative remedy will be sought in Congress, or both, will certainly be forthcoming.

[C. Richard Archie]

Well, why not?

The Government figures that since the throat of the General Public is still stretched and enlarged from the recent shoving of another unconstitutional, unwanted mandate down the maw, why not toss another wad in and pack 'er down again!

I suspect they are getting close to the proverbial ten pounds of stuff in a five pound bag thought.

[Dan Lee]

The Judge is a Clinton appointee.. Perfect example of why liberals & fascists are always trying to stack the courts.. If we let them continue to do that, we will lose all ability to defend ourselves in the court system.

[Dan Lee]

Boy, it's a Darn good thing that the Judge upheld those large capacity Magazine Ban, & assault bans in D.C. I mean look how well it's working out for them!

http://www.foxnews.com/us/2010/03/30/de ... latestnews

[ProguninTN]

We'll have to look forward to an appeal. As we know, semi-automatics are in common use, and outside of certain restrictive locales, (DC, and a few others), so called "high capacity" or > 10 round magazines are standard with firearm purchases.

[Tim Nunan]

http://www.foxnews.com/opinion/2010/03/ ... ndgun-ban/

A Gun Ban By Any Other Name...
By John Lott
- FOXNews.com

Gun control laws divert money from law enforcement activities that work. The thousands of hours spent by police to register guns are time that police could have put to solving crimes. That diversion of resources is the real threat to public safety.

On Friday, a federal District Court judge tried to indirectly reinstate the D.C. handgun ban. Judge Ricardo Urbina, a Clinton appointee, wants to make it so difficult for people living in DC to use a handgun defensively that few will get one.

Last September, a Washington Post reporter, Christian Davenport, found out just how difficult it still is to get a handgun in D.C. even after the Supreme Court struck down the city's handgun ban. Excluding the price of the gun, the reporter spent $558.69 in various fees to get through the approval process. But that was only part of the cost. It took him "a total of 15 hours 50 minutes, four trips to the Metropolitan Police Department, two background checks, a set of fingerprints, a five-hour class and a 20-question multiple-choice exam."

So when do these types of regulations constitute just as much of a ban on handguns as an outright ban? A dollar tax solely on newspapers would clearly be struck down as unconstitutional. The power to regulate can destroy both the First and Second Amendments. Despite the costs, about a thousand people may have gotten handgun permits. That is only about 0.2 percent of adults living in D.C. The big change from the 2008 Heller decision might have simply been that D.C. law now requires that gun owners (primarily those owning long guns) only have to store their guns locked and unloaded if minors might have access to them. And it is probably this change that helps explain why D.C.'s murder rate fell by 25 percent the year after the handgun ban was struck down as unconstitutional.

Judge Urbina justifies the regulations using the same reasons that D.C. originally tried to use to justify the ban based on public safety. But for the regulations ruled on by Judge Urbina, the evidence clearly shows that freedom and safety go together. More guns mean less crime. Rules that make it very costly and difficult for people to register handguns for self-defense, disarm law-abiding citizens relative to criminals and make crime more likely. It isn't too surprising that every place in the world where guns have been banned and crime rates are available to study have seen an increase in murder rates.

After the Supreme Court struck down the handgun ban and gunlocks in 2008, the D.C. Council enacted strict new handgun laws. On Friday, the judge found D.C.'s new handgun laws constitutional because "the Council provided ample evidence of the ways [the different gun laws] will effectuate the goal of promoting public safety." The problem is that D.C. really didn't provide "evidence," and merely made claims that the gun laws work. The court ruled that those claimed benefits outweighed the constitutional rights lost from the regulations.

Yet, the available evidence contradicts the safety argument.

Gunlocks -- The Supreme Court was right in the Heller decision. It ruled that a locked, unloaded gun "makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." Empirical work shows that gunlock laws have failed to reduce accidental gun deaths for children. Instead, they have cost innocent lives as law-abiding citizens have become more vulnerable to criminal attack. Just as higher arrest or conviction rates or longer prison sentences can deter criminals, so can more self-defense. Gunlock laws not only embolden criminals to attack people in their homes. These laws also increase the probability that the criminal will be successful.

Limiting the number of bullets that a gun can hold to 10 -- This was one of the restrictions that had been in the Federal Assault Weapons ban that lasted from 1994 to 2004. But despite a large academic literature on Assault Weapon bans, there hasn't been a single refereed study by either criminologists or economists that such laws reduce violent crime.

Handgun registration -- After the decision on Friday, D.C. Council member Phil Mendelson claimed: "Because law-abiding citizens register their guns, it makes it easier for the police to identify and arrest the criminals." Despite the inaccuracies show on television shows, registration doesn’t work to solve crimes. In theory, if a gun is registered and it is left at the scene, it could theoretically be traced back to the owner. But guns from crimes are virtually never left at the scene of the crime. When they are left at the scene, it is primarily in cases where the criminal has been seriously wounded or killed. Then, of course, the weapon is not needed to catch the perpetrator. Moreover, in the few cases guns are left at the scene, they are traced back to somebody else because the criminals never bothered to register their guns.

In spite of the statements in “The Bill of Rights” that "Congress shall make no law" or "shall not be infringed," courts don't view constitutional rights as absolutes. Courts now ask whether the benefits from the law outweigh the constitutional rights lost -- so-called "balancing" tests. With high levels of "scrutiny" usually reserved for “The Bill of Rights,” courts must also find that the laws are "narrowly tailored" to achieve a compelling governmental interest. Public safety is surely an important governmental interest, but the evidence shows that gun control laws either produce no benefit, or actually increase crime rates, nevermind that these laws are the only way to reduce crime. Indeed, every location for which crime data is available has seen an increase in murder rates after gun bans have been imposed. D.C.'s gun laws can't meet these constitutional tests as they don't even reduce crime, let alone meet the other constitutional tests.

What is worse is that these laws divert money from law enforcement activities that work. The thousands of hours spent by police to register guns are time that police could have put to solving crimes. That diversion of resources is the real threat to public safety.