Tag Archives: Supreme Court

Supreme Court Denies Certiorari in ANOTHER Second Amendment Case

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Once again the Supreme Court has denied certiorari in another Second Amendment Case. Silvester, et al. v. Becerra was an appeal from the 9th Circuit challenging California’s 10-day waiting period to firearm purchasers. In particular, the petition for certiorari raised the issue of whether the 9th Circuit “improperly applied lenient scrutiny in a Second Amendment challenge to the application of California’s full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit’s concerted resistance to and disregard of the Supreme Court’s Second Amendment decisions.” (SCOTUS Blog Case Summary).

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Justice Thomas, once again, issued a scathing dissent from the denial of certiorari.  He noted that the analysis the 9th Circuit employed was “indistinguishable from rational-basis review.” For those readers unfamiliar with the levels of scrutiny, rational-basis is the lowest standard a court employs with respect to constitutional rights.

 …it is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.

Justice Thomas continues “[i]f a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.”

Petitioners Jeff Silvester and Brandon Combs (Firearms Policy Coalition) brought suit challenging California’s 10 day waiting period under the Second Amendment, specifically that the waiting period was unconstitutional as applied to “subsequent purchasers”. The District Court entered a judgment for the Petitioners.

The District Court, after applying an intermediate scrutiny analysis, found that the waiting period was not reasonably tailored to promote an important government interest. It is at the District Court that findings of fact occur. The Court found, among other things, that twenty percent of background checks are auto-approved and took less than two hours to complete. Silvester v. Harris, 41 F. Supp. 3d 927, 964 (ED Cal. 2014). It also found that the arguments for the “cooling off period”, while novel, were inconclusive as to their effectiveness. Id at 954-955. The Court noted that the studies presented by the government, seemed “to assume that the individual does not already possess a firearm.” Id. at 966.

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California, unsurprsingly, appealed the decision to the 9th Circuit, which reversed the District Court’s judgment, upholding the 10 day wait period. The 9th Circuit, claimed to have applied intermediate scrutiny, but as Justice Thomas noted, “its analysis did not resemble anything approaching that standard.” Perhaps most egregious is that the 9th Circuit did not defer to the District Court’s findings of fact.

The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend. As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights. (emphasis added).

The dissent shows Justice Thomas’s frustration with the Supreme Court’s continued denial of certiorari in Second Amendment matters. “The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.”

Time will tell if the Court opts to pick up a Second Amendment challenge in the future. Justice Gorsuch joined Justice Thomas in his dissent from the denial of certiorari in Peruta v. California, signaling that he too believes Second Amendment issues are ripe for discussion.

 

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United States v. Texas

Here at the Prince Law Blog, we have been committed to providing continued coverage of what is quickly proving to be among the most definitive cases of the SCOTUS’s current calendar year – United States v. Texas.

The last we blogged, the United States had promptly appealed the split decision of the 5th Circuit Court of Appeals, which itself had upheld a U.S. district court injunction against the President’s executive action known as DAPA (Deferred Action for Parents and Lawful Permanent Residents).

SCOTUS granted certiorari, and oral arguments were heard yesterday…and the world waits with baited breath.

One thing is certain, the current post-Scalia dynamic of the Court will have an exceptionally large bearing on the result.  According to creditable accounts of yesterday’s arguments, there were many pointed exchanges between counsel and Justices all seeming to portend a stark split among the justices (the 4 liberal-moderates on one side; the 3 conservatives on the other).  Therefore, most of the pundits are especially fascinated with the line of questioning from the potential swing voter(s), Roberts and Kennedy.  Also, it should be noted that a 4-4 split decision would NOT result in a precedent, meaning the decision of the 5th Circuit would remain in place.

To briefly recap, the questions before the Court are as follows:

  • Do the (26 plaintiff) States have standing to challenge the Administration’s exercise of deferred action/prosecutorial discretion? More specifically, does the state-borne cost associated with providing drivers’ licenses to beneficiaries of deferred action qualify as an injury or harm under normative jurisprudential standards?

 

  • Does the DAPA program go beyond the powers conferred to the Executive by Congress? In other words, is DAPA merely an extension of the President’s right to enforce immigration law or is it indicative of the President purporting to create new law (therefore invading the Congressional province)? Relatedly, has the President violated the Take Care clause of the Constitution by abdicating his duty to “faithfully” carry out immigration law.

 

  • Must DAPA be considered void for not technically following the Notice and Comment requirements of the APA?

 

As this blogger sees it, the most unfortunate aspect of this case, as I mentioned previously, is that the outcome might yet be influenced (if not hijacked outright) by sheer bloody-minded politics.  Instead of a reasoned, purely legal and/or textual assessment of a) the powers of the Executive branch in the context of setting immigration policy; b) whether an administration’s immigration policy can even be challenged in court; c) the lengthy history of the Executive branch’s use of prosecutorial discretion and deferred action programs and other non-extraneous factors, the furor here seems more to be about conservative outrage that the current Administration has made a decision that they do not agree with in principle.

It is a pity that, when it’s all said and done, no points might be given to the Administration for taking initiative in tackling, as best it knows how, arguably the biggest socioeconomic and humanitarian issue in the United States today.  Is it realistic or even decent governance to expect the more than 4 million persons present without legal status can be expected to continue to live in the shadows perpetually?  Do we really imagine that we can simply deport all these people without enormous cost, both financial and social?   In this bloggers humble opinion, this case is about politics making an issue out of pragmatism, and attempting to coopt the law in that effort.  Where Congress has failed to act, the President apparently has.  Now leadership is branded as lawlessness.  Go figure.

The folks at Scotus Blog, typically thorough fashion, have done a wonderful job putting together a United States v. Texas “symposium” – a series of discussions having a diversity of learned viewpoints on the case.

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U.S. Supreme Court Upholds FERC’s Demand Response Rule, Order No. 745

On January 25, 2016, the U.S. Supreme Court reversed the D.C. Circuit’s May 2014 ruling inSCOTUS EPSA v. FERC and instead upheld the Federal Energy Regulatory Commission’s (FERC) demand response rule, Order No. 745, thereby affirming FERC’s jurisdiction to regulate FERCwholesale markets. FERC issued Order No. 745 with the aim of encouraging participation of demand resources – generally industrial and other large energy users that can reduce or forego energy consumption during certain periods – in wholesale markets administered by FERC by allowing such demand resources to bid their reduced energy consumption for compensation at the same price and in the same markets as generating resources.

Several Independent Power Producers (IPPs), which compete directly with demand resources under Order No. 745, led by the Electric Power Supply Association (EPSA), EPSAchallenged FERC’s Order No. 745 on the grounds that a FERC-supervised demand response market necessarily intruded into the area of retail rate regulation, which is exclusively the jurisdiction of the states. EPSA prevailed at the D.C. Circuit, which rejected FERC’s Order No. 745 in a decision issued on May 27, 2014. By a 6-2 majority (Justice Alito did not participate), the Supreme Court overturned the D.C. Circuit. The Court’s opinion, authored by Justice Kagan, validated Order No. 745, concluding that FERC acted within its authority. Specifically, Court found that:

  • Order No. 745 easily meets the Federal Power Act (FPA) standard of being a practice that “directly affects wholesale rates” because compensating demand resources necessarily lowers wholesale electricity prices. Slip Op. at 14-17;
  • Order No. 745 does not regulate retail sales, even though it may affect the quantity or terms of retail sales. The Court reasons that wholesale energy transactions of many varieties have consequences at the retail level without legal consequence. Moreover, FERC had taken care not trample on state regulatory authority, evidenced by the fact that FERC’s demand response regime permits retail purchasers to participate in wholesale markets only if the state regulators do not forbid them from doing so. Slip Op. at 17-25.
  • EPSA’s position would subvert the FPA by rendering the entire practice of wholesale demand response outside of FERC’s jurisdiction, as well as outside the authority of states to regulate. The effect of such a vacuum of regulatory jurisdiction would halt a practice that enables FERC to fulfill its statutory duty to hold down wholesale prices and enhance reliability. Slip Op. at 25-29.
  • FERC decision to compensate demand resources at the same Locational Marginal Price (LMP) that is paid to generating resources was a reasonable one. Slip Op. at 29-33.

There was a dissent by Justice Scalia, joined by Justice Thomas, which was premised upon seeing the case through a different lens. His analysis started with determining whether sales of demand response (DR) involved wholesale sales of electricity. Since demand response is non consumption, Justice Scalia argues that FERC is without jurisdiction to regulate it, directly or indirectly. This was essentially the position of the majority of the D.C. Circuit panel below, which was rejected by the Court majority. The dissent also quarreled with the economic analysis in the majority opinion, although it is unclear how that disagreement relates to the majority’ underlying premise.

The Supreme Court’s decision in FERC v. Electric Power Supply Assn may be found here.

If you or your business have questions regarding energy law, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

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U.S. Supreme Court Asked to Hear Another Second Amendment Case

Today attorney Tom Odom of Prince Law Offices, P.C., will file with the U.S. Supreme Court a brief on behalf of Firearms Owners Against Crime (“FOAC”) and Firearms Industry Consulting Group (“FICG”), in support of the request of Tab Bonidy and the National Association for Gun Rights to review a decision of the U.S. Court of Appeals for the Tenth Circuit.

Bonidy is a responsible, law-abiding citizen with a permit to carry a firearm who lives in rural Colorado.  Like millions of other Americans, he obtained such a permit so that he might be prepared to defend himself outside of his home.  When the U.S. Postal Service advised Bonidy that he would be subject to prosecution simply for momentarily storing his firearm in the trunk of his vehicle in an unsecured parking lot made available for postal patrons, Bonidy sought a determination that applying the postal regulation to him under such circumstances would violate the Second Amendment.

The area where Bonidy lives is sufficiently rural that there is no home delivery of mail, the lobby of the post office is open to the public at all times so that individuals may retrieve mail from their post office boxes, and the post office does not maintain any regular security employees.  Nonetheless, the Tenth Circuit stated that both the lobby and the unsecured parking lot where Bonidy proposed to lock the firearm in the trunk of his vehicle constituted “secure places” beyond the scope of the Second Amendment right articulated by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).

In the belief that Bonidy’s case presents a superior opportunity for the U.S. Supreme Court to make clear that the Second Amendment is not exclusively limited to self-defense within one’s own home, FICG prepared the brief in support of Bonidy’s petition for certiorari on a pro bono basis.  FOAC joined in the effort and covered the cost of the printing of the briefs.

The decision below was reported as Bonidy v. United States Postal Service, 790 F.3d 1121 (10th Cir. 2015).  The U.S. Supreme Court docket number is 15-746.  Here is a link to the brief filed with the court.

UPDATE: On behalf of the U.S. Postal Service the Solicitor General (“SG”) requested and was granted additional time to file a brief in opposition to U.S. Supreme Court review. While the SG’s position is not surprising, the fact that the SG will file a brief at this stage indicates concern that the case could represent one of the 3% or so requests for review that the Court grants.

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Supreme Court Upholds Abramski’s Conviction for “Straw Purchase”

By Allen Thompson, Esq.

Yesterday, the Supreme Court of the United States issued its long-awaited opinion in Abramski v. United States, 573 U.S. ____ (2014). The Court, in a 5-4 decision along predictable lines, determined that Abramski’s conviction for “straw purchasing” could stand under the Gun Control Act.

As readers of this blog are aware, 18 U.S.C. § 922 requires a litany of procedures in order to purchase a firearm from an FFL. That litany includes regulations on what information must be provided to the dealer and what information the dealer is required to retain on file. What is also well known is that, unlike some states, the federal government does not expressly prohibit “straw purchases;” that is, no statutory provision makes it illegal for John Smith to purchase a gun for Jim Jones, with Jim Jones’ money. The Court acknowledged as much, but found that the overall scheme of the Act is designed to effectuate Congress’ “principal purpose” of “curb[ing] crime by keeping firearms out of the hands of those not legally entitled to possess them.” Slip op. at 11.

Justice Scalia, writing for the dissent, disagreed. As he usually does, Justice Scalia emphasized the actual language of the law. That language concerns the transaction between the buyer (the person at the counter) and the seller (the FFL). The language also expressly exempts particular third-party sales – those intended for gifts and those intended for resale – from the scope of the statute. Scalia notes, correctly, that the only difference in a private sale occurring five minutes after a purchase and a “straw purchase,” is the timing of the exchange of money. If John Smith purchases a gun with his own money, then sells it to Jim Jones and recoups the cost, the transaction is entirely legal, even if John Smith intended all along to buy it and sell it to Jim Jones. However, under the Majority’s view, if Jim Jones gives John Smith the money first, the sale is a “straw purchase” and illegal. The majority ignores this issue – it must have fallen outside the context of the regulatory scheme – and rests on the fact that Congress expressly authorized those exceptions, for some reason. But aside from the fact that Congress expressly authorized third party firearms sales, the majority divined Congressional intention for every other scenario, despite the legislature’s absolute silence on the issue. Apparently these express allowances for third party purchases were not considered to be relevant in the overall analysis of the statutory scheme.

What is interesting about the decision, however, is that it expressly disavows any deference to ATF’s interpretations of criminal statutes (although it conveniently upholds ATF’s current, court-favored interpretation). Slip op. at 21. The Court emphatically declined to give any deference to ATF’s interpretation of the statutes precisely because it is a criminal statute, codified in Title 18 of the U.S. Code (reserved for criminal statutes). While the Court’s apparent reason for disavowing any reliance on ATF’s interpretation was ostensibly to discredit Abramski’s argument that, at one point, ATF actually took exactly the same petition Abramski was proposing, it may well have opened quite a large door for firearms proponents. For example, the terms “firearm,” “silencer,” and “machine gun” are all defined in 18 U.S.C. § 921, part of the Criminal Code. Did the Court just invalidate all of ATF’s interpretations regarding what constitutes a firearm, silencer, or machine gun for purposes of criminal prosecutions?

This is not merely academic, as anyone who has had the misfortune of engaging a government agency in a legal battle knows that the courts typically defer to the agency on questions of interpretation of definitions and statutes. Now, however, a powerful argument can be made under Abramski that ATF’s determinations are to be given no deference at all, as many of the firearms regulations come under the Criminal Code (the rest come under the Tax Code). By way of example, ATF’s determination that Sig’s MPX-C muzzle brake is actually a silencer should no longer be given any deference, as the definition of “silencer” falls under the Criminal Code.

Of further interest is the blatant attempt to expand the scope of the Gun Control Act. As Scalia correctly argues in his dissent, “[w]e must accept that Congress, balancing the conflicting demands of a divided citizenry, wrote the statute that it wrote – meaning, a statute that goes so far and no further.” Scalia dissenting, Slip op. at 10. Scalia’s point is well taken: the approach the Court needed to take is not a “purpose-based” approach, but a legal approach. It is well understood that Congress intended to regulate the sale of guns in order to prevent individuals who it desired to prohibit from possessing firearms from gaining access to them. However, it “wrote the statute it wrote” and that statute does not prohibit individuals from purchasing firearms for someone else. Regardless of whether prohibiting “straw purchases” is desirable, stops crime, or is looked on favorably by five Supreme Court Justices, Congress has not prohibited the act. The Court cannot criminalize third party purchasing merely because it feels that it is in line with the overarching goal of the statute. Penumbras and legal emanations may be well and good in discovering new rights, but they are certainly not welcome in creating new crimes, ex post facto, especially where the act is only criminalized by a band of bureaucrats and not even remotely supported by statute.

Unilaterally expanding the scope of the statute contradicts the Court’s façade of disregarding ATF’s determinations. Early in the opinion, Justice Kagan acknowledges that regulations prescribed by the Attorney General “or his designee” apply to dealers. Slip op. at 3. And if the regulation states that a dealer must keep a particular record, well, then, the dealer must do it, regardless of whether it is prescribed by the statute. This is precisely how the Court justifies its finding that the false statement that Abramski was the actual purchaser was “material.” The majority found that because the dealer was required to keep the Form 4473, everything on the form must be relevant. Scalia, in correcting the majority in his dissent, recognizes that while ATF was free to regulate the implementation, it could not rewrite the law. So while 27 CFR § 478.124(c)(1) requires a litany of information, and § 478.124(a) requires the dealer to retain the Form 4473, neither provision requires that the purchaser answer whether he is the “actual purchaser” or a third party purchaser. As Scalia writes:

On the majority’s view, if the bureaucrats responsible for creating Form 4473 decided to ask about the buyer’s favorite color, a false response would be a federal crime. That is not what the statute says. The statute punishes misstatements ‘with respect to information required to be kept,’ . . . not with respect to ‘information contained in forms required to be kept.’ Because neither the Act nor any regulation requires a dealer to keep a record of whether a customer is purchasing a gun for himself or for an eligible third party, that question had no place on Form 4473 . . .

Dissent, Slip op. at 14-15.

Scalia is precisely correct. Whether the majority desperately desired that Congress included a “straw purchase” provision in the statute, whether the majority wished that the third party purchaser information had been included in the regulation, and whether the majority thought it important and wise public policy to require a dealer to know information about the ultimate possessor of the firearm, matters not at all. Congress wrote a statute; that statute informs the public as to what acts are lawful and which shall be criminally punished. The statute does not proscribe purchasing a firearm for another individual. Therefore, despite the Court’s dissatisfaction with Congress’ statute-drafting abilities, there was no basis for convicting Bruce Abramski or upholding that conviction.

 

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Hearings Held on SJ Resolution 19 to Limit First Amendment Rights

Hearings were held today by the Senate Judiciary Committee in relation to Senate Joint Resolution 19. Introduced last June, the Resolution proposes amending the Constitution to reverse recent First Amendment rulings by the United States Supreme Court, particularly the controversial Citizens United and McCutcheon cases.

The proposed amendment would expressly authorize Congress “to regulate the raising and spending of money and in-kind equivalents” to federal elections, concurrently authorizing states to do the same for state elections. If passed by three-quarters of the state legislatures, Congress and the states would then be able to set limits on both the number of contributions to, and the amount of aggregate funds that may be spent “by, in support of, or in opposition to such candidate.” (Emphasis added). It was precisely these aggregate limits that the United States Supreme Court found to violate the First Amendment by limiting the amount of speech an individual could engage in in McCutcheon. Seemingly innocuously, but ultimately ominously, the Resolution also provides that “[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press.”

While the amendment has very little chance of becoming a reality, the fact that nearly 20% of the Senate introduced the measure is startling. In essence, S.J. Res. 19 would only allow government-approved journalists to editorialize during elections (see below). For example, a group such as Citizens United could not fund an advertisement in support of a particular candidate in the New York Times under the proposed amendment, but the New York Times could print a favorable editorial of the same candidate (or his/her opponent), since the proposed amendment expressly exempts “the press.”

The amendment, therefore, creates a state-approved (and, therefore, state-controlled) press. When the government prosecutes individuals for violating the statutes passed to enforce the powers granted by the proposed amendment, the state is, in effect, declaring which outlets are considered “the press,” and which are not. This is dangerous ground to tread, as any administration may take the position that a hostile outlet is not really “the press” and prosecute them (the term “prosecute” here means filing for adverse action in court, whether criminal or civil). Even if the courts reject a particular civil claim or criminal charge, anyone who has had to deal with defending charges (or IRS audits) knows that the mere possibility of years of litigation can be emotionally and financially draining.

When analyzing free speech cases, the courts frequently invoke the term: “chilling free speech.” This means that particular laws, regulations, and other government actions are designed to suppress free speech, if not expressly, then by coercive means. In essence, it would “chill,” or freeze, an individual’s ability or desire to freely speak on a topic. It is hard to imagine a scenario that fits more precisely the courts’ concerns.

Perhaps even more disturbing is the sweeping language used in the proposed amendment. Despite offering two examples, giving the appearance that this is all the amendment authorizes, the language states that “Congress shall have power to regulate the raising and spending of money . . . with respect to Federal elections, including” the enumerated examples. This means that Congress would have the ability to legally deny all individuals the ability to raise and/or spend money in support of a candidate. For example, if the amendment is passed, Congress would constitutionally be permitted to restrict raising money for elections to 501(c)(3) organizations, whom it has already approved, thus placing full discretion as to who may participate in the electoral process in the hands of the executive branch.  Of course, there are many other avenues the government may take to limit political participation.

The following Senators, as well as their party affiliation, state of representation, and Washington, D.C. contact information, are as follows, should you desire to express your opinion directly to your representative:

 

Tom Udall (D – New Mexico): (202) 224-6621 .

Michael Bennet (D – Colorado): (202) 224-5852.

Tom Harkin (D – Iowa): (202) 224-3254.

Charles Schumer (D – New York): (202) 224-6542

Jeanne Shaheen (D – New Hampshire): (202) 224-2841.

Sheldon Whitehouse (D – Rhode Island): (202) 224-2921.

Jon Tester (D – Montana): (202) 224-2644.

Barbara Boxer (D – California): (202) 224-3553.

Chris Coons (D – Delaware): (202) 224-5042.

Angus King (I – Maine): (202) 224-5344.

Chris Murphy (D – Connecticut): (202) 224-4041.

Ron Wyden (D – Oregon): (202) 224-5244.

Al Franken (D – Minnesota): (202) 224-5641.

Amy Klobuchar (D – Minnesota): (202) 224-3244.

Mark Udall (D – Colorado): (202) 224-5941.

For further information on the effects that passage of the amendment would have and more in-depth constitutional analysis, read renowned appellate advocate Floyd Abrams’ testimony before the Senate Judicial Committee here.

If you believe your constitutional or civil rights have been violated, call our office for a free consultation at (610) 845-3803 or TOLL FREE at (888) 313-0416.

 

 

 

 

 

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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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