Following the Supreme Court's Landmark ruling in District of Columbia v. Heller, D.C. enacted several new gun control laws that prohibited the possession of so-called "assault weapons", prohibited possession of magazines capable of holding more than 10 rounds of ammunition, created handgun rationing, generally required the registration of all firearms, and required that registrations be renewed every three years. Shortly after the earliest of these new laws were enacted, Dick Anthony Heller and several other plaintiffs filed a new lawsuit challenging the provisions in the NRA supported case Heller v. District of Columbia, commonly referred to as Heller II.
All of the challenged laws were initially upheld by the United States District Court for the District of Columbia. That decision was appealed to the United States Court of Appeals for the District of Columbia Circuit. The circuit court's opinion upheld the lower court's decision on "assault weapons", magazines, and the handgun registration requirement, but remanded for more fact-finding on the claims relating to the registration requirement for long guns, handgun rationing, the burdensome registration procedures, and the requirement to reregister firearms every three years. Yesterday, Judge James E. Boasberg of the United States District Court for the District of Columbia issued an opinion addressing the claims remanded by the circuit court.
Judge Boasberg's recitation of D.C. murder statistics from the 1990's and his claim that "[t]he District of Columbia knows gun violence" in the opening lines of the opinion made it clear from the outset that the plaintiffs' legal arguments were going to be drowned out by the dubious mantra that any type of gun control is bound to promote public safety. The irony of quoting statistics of high crime rates that existed before D.C. was forced to repeal its ban on all handguns apparently was lost on Judge Boasberg, as was the fact crime in D.C. has continued to decline after D.C. residents' right to possess handguns was restored in 2008.
After this ominous introduction, Judge Boasberg determined that the appropriate level of constitutional scrutiny was "intermediate scrutiny", which requires that the District can show that the challenged laws are "substantially related to an important governmental objective" and that the law is narrowly tailored to achieve that objective. This might seem like it would require some real justification from the District for passing the laws. Nevertheless, the court quickly dispelled that notion by finding that mere opinion evidence of the District's "experts" (whether or not backed by empirical data) could fulfill the requirement the challenged laws be "substantially related" to the District's important interests in public safety, and that the court would not strike down the laws as long as the District's predictions about the effect of the laws were "reasonable."
With this weakened form of "intermediate scrutiny" as the standard, Judge Boasberg began his analysis by looking at the long gun registration requirement. The plaintiffs were able to discredit much of the District's empirical evidence on the effectiveness, or lack thereof, of gun registration, but the court nonetheless upheld the requirement mostly on the opinions offered by the District's "experts," like D.C. Police Chief Cathy Lanier.
Judge Boasberg's willingness to stretch to find D.C.'s laws constitutional was perhaps most apparent in his reasoning for upholding the requirement that registrants bring each firearm they wish to register to the police station for inspection. The Judge first admits that the District put on no evidence showing how this requirement is substantially related to the District's public safety objectives. Since the District had the burden of showing that the law is substantially related, seemingly at least this portion of the registration requirement should have failed. Nevertheless, the court upheld this requirement because it made a "common-sense inference" from testimony supporting a different aspect of the registration requirement. How such an inference by the court can meet the District's burden of showing a "substantial relationship" is unclear.
Continuing the trend of treating the right to keep and bear arms differently from all other constitutional rights, the court also upheld the District's requirement that a registrant must pass an exam before registering any firearms. Most these days would consider a competency test for the exercise of any of the rights protected by the First Amendment or the right to vote unthinkable, but such tests were deemed constitutional, at least in the District, when it comes to Second Amendment rights.
While upholding the registration requirements in their entirety required an unusual degree of deference to the D.C. Council in the face of a fundamental right, Judge Boasberg's discussion of the handgun rationing provision, which limits registrants to only one handgun registration in a 30 day period, is perhaps even more troubling. In upholding the rationing provision, the court found that "the District must respect the right of each resident to possess a handgun . . . for self-defense" and "[w]hile one or two firearms may be necessary for such purposes, a large collection of weapons is not." Although D.C. law limits applicants to registering only one handgun each month, Judge Boasberg seemed willing to endorse the constitutionality of laws that would restrict individuals to possessing only one or two firearms at any given time.
While the decision is to be appealed, one lesson that can be learned from Judge Boasberg, an Obama appointee, is the importance of electing a president and senators who will appoint and confirm judges that respect the right to keep and bear arms as much as any other constitutional right. Your NRA-ILA will keep you informed of future developments in this case and in the ongoing fight for judicial recognition of the Second Amendment.