D. C. Circuit Court Rules Against Us in Heller 2

[Bartholomew Roberts]

In Heller 2, the plaintiffs challenged D.C.'s new registration requirements as well as its prohibitions on semi-automatic "assault" rifles and large capacity magazines. Today, the D. C. Circuit Court of Appeals upheld all aspects of the D. C. law, setting the stage for another showdown at SCOTUS.

The 2-1 opinion is here (long dissent):
http://www.cadc.uscourts.gov/interne...36-1333156.pdf

I've just skimmed the Opinion so far; but it appears the D. C. Circuit has adopted the two-prong test in Nordyke. First they ask whether a particular provision "substantially burdens the Second Amendment" and if the answer is yes, they then decide whether the provision passes the "appropriate level of consitutional scrutiny."

Using this test, the court determined that Heller says that any "longstanding regulation" is "presumptively lawful" ergo because "mere" registration is a longstanding regulation it is presumptively lawful and the presumption was not rebutted to the D.C. court's satisfaction, registration by itself is therefore lawful. However, the court did remand the other requirements to the district court to determine if they were also "longstanding regulation."

Frankly, I think this is both weak legal reasoning and a blatant attempt to punt on the issue of actually applying a reasonable Second Amendment scrutiny to the D.C. regulation. I'll add more as I manage to skim through the case at lunch.

[Patriot86]

No real surprise here though is there? The sooner these cases make it to the SCOTUS the better. Because nothing has the national reach and "chilling" effect on anti gun types as a SCOTUS case. It gets local governments who have such laws moving and usually quickly to overturn local laws and gives the states something to think long and hard about.


Point #2 is this, what happens if Obama wins re-election in 2012 and what if 1 of the 5 Justices currently on the side of the 2A dies of old age or is forced to retire? No doubt not only immediately but for the near future you would see those 5-4 for 2A cases turn into 5-4 against 2A cases.
We need to get through as many critical and crucial decisions as possible while the make up of the courts is still in our favor.

[Tom Servo]

Frankly, I think this is both weak legal reasoning and a blatant attempt to punt on the issue of actually applying a reasonable Second Amendment scrutiny to the D.C. regulation.

It's pretty wretched all around. Note their source here:

The Committee on Public Safety received evidence that assault weapons are not useful for the purposes of sporting or self-defense, but rather are “military-style” weapons designed for offensive use. See generally Testimony of Brian J. Siebel, Brady Center to Prevent Gun Violence (Oct. 1, 2008). [p. 30]

Brady lawyers are all over the place in the majority opinion, and somebody's been hard at work cherry-picking supportive sources for them.

[Bartholomew Roberts]

Also note that they correctly identify the core right discussed in Heller as one of self-defense and militia; but then rely on ATF evaluations concerning "sporting purposes" to justify their decision that magazine bans are OK. That doesn't even follow a consistent logical chain of thought.

[zukiphile]

...somebody's been hard at work cherry-picking supportive sources for them.

A couple of those jumped out at me as well. While not legally a big deal, they are howlers. The bit about the M-16 pattern being a favorite of violent criminals was a good one. I also enjoyed the repetition of the ATF testimony that the purpose of a pistol grip on a rifle is to allow quick firing from the hip.

My disappointment with the decisions is more general; it appears to be result oriented jurisprudence. It is a process in which a court decides where it wants to end up, i.e. where it has already decided it should be, then constructs an analytical bridge back to the facts of the case. This process contorts the law with poor precedent, and (I believe) undermines confidence in the judicial function. To read the majority, they are evaluating a routine registration process, not the invasive and burdensome process that is barely amended from the one the Sup Ct struck down.

Perhaps the silver lining here is a second bite at the apple in establishing in the record some matters the majority seem to have ignored.

Thanks for the post, Bart.

[Tom Servo]

This description is elaborated in the Siebel testimony for the Brady Center: (...) “[p]istol grips on assault rifles ... help stabilize the weapon during rapid fire and allow the shooter to spray-fire from the hip position.” The same source also suggests assault weapons are preferred by criminals and place law enforcement officers “at particular risk because of their high firepower,” as does the ATF

Nobody I've spoken with, in any branch of the military, has ever been trained to use the pistol grip to facilitate "shooting from the hip."

That doesn't even follow a consistent logical chain of thought.

Since when does that stop anyone? On page 8, they also claim that Heller "approv[ed] a ban on machine guns."

Chewbacca lives on Endor.

[Bartholomew Roberts]

“[p]istol grips on assault rifles ... help stabilize the weapon during rapid fire and allow the shooter to spray-fire from the hip position

Any time I see that comment being made, I just take it as a given that the person doesn't know anything about firearms in general. The only thing a pistol grip facilitates on most rifles is being able have the stock in line with the bore and still be able to grab the rifle. This is why you see it on as many modern bolt actions as you do "assault weapons."

[maestro pistolero]

“[p]istol grips on assault rifles ... help stabilize the weapon during rapid fire and allow the shooter to spray-fire from the hip position"

Even if this preposterous and erroneous notion were true, it would serve only to make a weapon more functional. There's nothing in the law about spraying from the hip for lawful purposes. It's clearly tired, worn out hyperbole intended to illicit an emotional reaction.

Again, even if this statement were true, it rests on the false argument that small arms in common use can be too functional to be protected by the second amendment.

It is simply not possible for a weapon to be too purposely functional for resisting a vicious criminal attack, unless it has performance characteristics that unnecessarily endanger innocent bystanders.

A pistol grip, full capacity magazine, laser sight, night sight, night-vision, bipod, or any other feature or accessory that makes accurate, and/or sustained fire more controllable, or more possible is absolutely protected, IMO.

Weapons not only are allowed to be functional, functionality is a central component of 2A protection per Heller.

By the way, what type of firearm would be more appropriate for the purpose of resisting future tyranny, than a civilian version of the one firearm that is placed in the hands of nearly every 18 year old who signs on the dotted line for the armed services?

If there is an anti-tyranny contingency contained in the second amendment at all, then a semi-auto AR-15 ought to be the MOST protected small arm in the land.

[zukiphile]

I didn't intend to pull the thread off track with the pistol grip business. It isn't really what the majority reasoning rests on, but it illustrates the flavor of the the majority rationale, which is a bit credulous when it comes to the quality and intent of the districts restrictions.

While they may not be firearms experts or hobbyists, they are smart people. If they are tossing up brady bullet points (no pun), I don't believe they do it unknowingly.

[Hardcase]

Using this test, the court determined that Heller says that any "longstanding regulation" is "presumptively lawful"...

This seems to fall into the school of "if you say something often enough, it must be true" logic.

There was much factual support in that decision that was, well, not fact.

[Aguila Blanca]

"Presumptively lawful," as used in the Heller decision, did not and does not mean "lawful," or even "probably lawful." What Scalia meant when he wrote that was "We're not arguing that point today."

And that's ALL it meant. I'm quite certain his intent was for each such "presumptively" lawful regulation to be tested to see if the presumption is valid.

[Standing Wolf]

[sincerity, deep] Wow. A Washington, D.C. court rules against the Bill of Rights? That is so amazing. [/sincerity]

[secret_agent_man]

"Presumptively lawful," as used in the Heller decision

Indeed, the phrase "presumptively lawful regulatory measures" is contained in a footnote to dicta. Scalia was quick to point out in same The Court's list of these measures "does not purport to be exhaustive."

In other words, not many gun laws on the books are going to survive examination.

In fact, the Court defined only three such "longstanding prohibitions":

a.possession by felons and the mentally ill
b.no carry in sensitive places
c.laws imposing conditions on the commercial sale
of firearms.

I give a nod to what A.B. wrote. Presumptively lawful regulations are merely assumed lawfull until they either pass or fail a test of scrutiny, at which time they will become either one or the other-lawfull, or unlawfull.

Presumption is merely a matter of unfounded opinion, and everybody with a dog in this fight seems to have one.

Some folks see it differently:
http://www.bc.edu/content/dam/files/.../07_zonars.pdf

[gc70]

I wonder ... do Supreme Court Justices ever hear rumors about decisions coming out of the D.C. Circuit?

Do you think Scalia would like to have another shot, with broader scope, at D.C.'s laws?

[csmsss]

gc, I'm not convinced Scalia takes these cases quite as personally as we'd like to think, though it's pretty sure he does like sticking a fork into a poorly-argued eye every so often. But I do think that, should he weigh in on a dissent or concurrence, it will likely be memorable reading.