A Closer Look at Heller v. D.C. II


As Dave Weigel noted yesterday, Dick Heller has filed a complaint in federal court that accuses the District of Columbia of failing to comply with the Supreme Court decision overturning D.C.'s handgun ban and firearm storage requirements. The complaint (PDF) focuses on two aspects of D.C.'s revised gun law that I discussed in my column last week: the ban on semiautomatic handguns and the requirement that any firearm in the home be kept unloaded and locked except "while it is being used to protect against a reasonably perceived threat of immediate harm to a person."

The former restriction, note Heller's attorneys, Stephen Halbrook and Richard Gardiner, is hard to reconcile with the Supreme Court's conclusion that banning the guns most commonly used for self-defense violates the Second Amendment. "The District's ban on semiautomatic handguns," they write, "amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for the lawful purpose of self-defense in the home." They are not asking the U.S. District Court to overturn D.C.'s absurdly broad "machine gun" ban, which covers semiautomatic guns if they can fire more than 12 rounds without reloading or "can be readily converted" to do so. Instead Halbrook and Gardiner want the court to reject the District's interpretation of the law, according to which any gun that can accept a magazine holding more than 12 rounds is forbidden, even if the owner does not possess such a magazine. It's this interpretation that prevents Heller from registering his seven-shot .45-caliber pistol and co-plaintiff Absalom Jordan from registering his 10-shot .22-caliber pistol.

The District's position seems to be that banning all handguns except revolvers fits with the Supreme Court's implicit approval of bans on "dangerous and unusual weapons." I've noted the circular logic of that exception, whereby banned weapons (such as actual machine guns) remain banned because the ban has made them unusual. The "dangerous" part is puzzling too, since all weapons are dangerous; that's what makes them weapons. But whatever the phrase means, it clearly does not apply to semiautomatic handguns, which are not "unusual" in this country by any stretch of the imagination. 

Regarding the storage rule, Halbrook and Gardiner note that the new law, like the original one, includes a general exception for guns carried by law enforcement personnel and guns kept in places of business. "Such provision acknowledges the need to keep a firearm in useable condition for defense of self and others against an unlawful, sudden, and deadly attack," they note, which highlights the unreasonableness of demanding that guns in the home be kept unloaded and locked until the very moment they are being used to fend off an attack. They point out that the law even forbids D.C. residents to unlock their guns "for innocuous purposes such as cleaning."

Halbrook and Gardiner also object to the District's cumbersome registration process, especially the unlimited authority given to the chief of police to set the fee for ballistic testing. They argue that "predicating the right lawfully to possess a pistol as guaranteed by the Second Amendment on the payment of any fee, and moreso an undefined fee with no limit according to the arbitrary will of the Chief, infringes on the right of the people, including plaintiffs herein, to keep and bear arms."

Here is the Washington Post story about the lawsuit. Here (PDF) is a copy of the complaint.

Correction: As Gary Imhoff noted, my original post confused one of the plaintiffs with one of the lawyers. I've fixed the names.