Heller loses to DC, for now

Washington, D.C. and Dick Heller are back in the news. In a ruling yesterday (May 15), District Court Judge James Boasberg found that D.C.’s firearms registration statutes were in compliance with the Second Amendment.  In a 62-page memoranda, the Court found that the laws were not overly burdensome.  While I won’t parse the decision here, I have outlined some of the more important points of the decision, as well as some of what I believe to be the legal flaws in the decision.

After having its firearms ban struck down as unconstitutional in D.C. v. Heller in 2008, the city began scrambling to rewrite its laws. They came up with the Firearms Registration Amendment Act [“FRA”], which required firearms owners to register their guns with Metro Police, which then kept a database of gun ownership. In order to register, the applicant would have to personally appear at police headquarters*, complete a background check, and have his photograph and fingerprints taken. The applicant would then be required to pass a test on the District’s firearms laws and complete a firearms safety course. “Lastly, the registrant must pay a fee to reimburse the District for its registration expenses.” Heller v. D.C., 08-1289, slip op. at 5 (D.C. May 15, 2014).

The District argued, inter alia, that it had three important interests in gun registration which allowed the FRA to pass constitutional scrutiny. First, that the FRA screened people who were prohibited from owning firearms; second, that the FRA ensured that gun owners were familiar with how to use a firearm; and third, “to inhibit the illegal trafficking of firearms.” The Court bought the argument without wondering whether NICS satisfied the first justification and without commenting on the irony of any public official in Washington, D.C. today being seriously concerned with gun trafficking (insert your own Holder or Yee comments).

In determining that the gun registration requirement was not overly burdensome on an individual’s Second Amendment right, the Court quoted from the Heller II Circuit Court opinion: “The requirement . . . is similar to other common registration or licensing schemes, such as those for voting or for driving a car, that cannot reasonably be considered onerous.” Of course, there have been courts, as Pennsylvania residents will be well aware, that have found licensing schemes for voters to be “onerous.” See Applewhite v. Commonwealth, 330 M.D. 2012, slip op. at 18 (Pa. Cmwlth. Jan. 17, 2014)(finding Voter ID law unconstitutional on its face “because the statute contains no right to a non-burdensome means of obtaining the required identification,” where the state did not provide the identification at no cost). Of course, D.C. courts are not bound by Pennsylvania court decisions, but the contrast is striking nonetheless, especially considering that the D.C. gun registration statute is explicit in requiring applicants pay the fee to cover the costs of implementation.

Comparing the right to vote with the right to keep and bear arms is a good start, as both are fundamental rights (at least, the right to keep arms for self-defense in one’s home has been considered by the U.S. Supreme Court to be a fundamental right). However, there is no comparison to the requirements to register to vote and D.C’s gun registration requirements. There exists a very large burden on a gun applicant seeking only to exercise his rights as expounded in Heller I. He must complete a background check, physically show up to the police station (most likely involving missing work), submit fingerprints and a photo ID (purchased and maintained at his own expense), and then pay the District to administer the process.

Recognizing that the registration requirements at least had some burden on the individual’s Second Amendment rights, the Court did analyze the extent of the burden, ultimately concluding that they were no more than necessary to achieve D.C.’s stated goals. Ironically, the District’s experts testified that because identity theft is rampant, personally arriving at the police station to prove your identity is not overly burdensome and closely related to the District’s interests (I would refer the reader back to the Voter ID rationale).

One of the more disturbing passages of the opinion, however, relates to the one-pistol-per-month limit. Under the FRA, an individual could only register for one pistol per month, for a total of twelve per year (with an exception for new residents seeking to register prior collections). In finding that this was not a substantial burden on an individual’s Second Amendment rights, the Court found that “under the current limitation, District residents can still accumulate up to 12 new pistols each year. That is more than enough.” Slip op., at 51. (Emphasis added).

A legislature is not authorized to decide how frequently an individual may exercise a fundamental or constitutional right. Just this year, the U.S. Supreme Court in its McCutcheon decision, held that Congress could not limit the free expression of political activists by limiting the total number of candidates a person donated to. See our blog article on McCutcheon for more details. There is no legal reason why the Second Amendment, alone, may be subject to limitations on the frequency of its exercise. To continue with the Voter ID parallel, imagine a statute that allowed an individual to vote in a maximum number of local, state, and federal elections in a given time period (justified, say, to keep travel restricted and thus keep the roadways clear and safe . . .) With no pun intended, people would be up in arms. Merely because a particular right happens to be unpopular in a certain segment of society is no reason to limit the right and, indeed, is the precise reason why our constitutional system exists!

In short, the firearms community can expect to see Heller’s name again at the head of legal decisions concerning our rights.  Hopefully, the next decision will adhere yield more fruitful constitutional results. 


*Confoundingly, the law states that it is illegal to possess a firearm that has not been registered, while at the same time permitting law enforcement to require the applicant to bring the unregistered firearm into the station as part of the registration process. One wonders how a person legally brings an unregistered firearm into a police station in order to get it registered, when the application process is part of a law prohibiting unregistered possession of firearms . . . . . . . . .

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