Gun Rights

Dueling Tests Yield Conflicting Conclusions About the District of Columbia's Gun Controls


Yesterday, as Damon Root noted, the U.S. Court of Appeals for the D.C. Circuit issued a ruling (PDF) that addresses the Second Amendment arguments against the gun law that the District of Columbia adopted after D.C. v. Heller, the 2008 Supreme Court decision that overturned its ban on keeping handguns or operable long guns in the home. The majority of the appeals court's three-judge panel upheld D.C.'s ban on "assault weapons" and magazines holding more than 10 rounds, along with its registration requirement for handguns. It drew no conclusions about the constitutionality of D.C.'s registration requirement for long guns or its onerous licensing and registration process (which includes various fees, five hours of training, multiple visits to government offices, fingerprinting, and recurring background checks), remanding those issues for further consideration by the district court. By contrast, dissenting Judge Brett Kavanaugh deemed all of these provisions unconstitutional.

The crucial difference between Kavanaugh and the judges in the majority (Douglas Ginsburg and Karen LeCraft Henderson) is the test they apply to determine whether a law violates the Second Amendment. All three judges agree that the highly deferential "reasonable-regulation test" urged by the District cannot be squared with the "fundamental" right to keep and bear arms recognized by the Supreme Court in Heller and in the 2010 decision McDonald v. Chicago (which held that the Second Amendment applies to state and local governments). Ginsburg and Henderson settle instead on "intermediate scrutiny" of the regulations challenged in this case, which requires that they be "substantially related to an important governmental objective." By comparison, "strict scrutiny" would demand that the regulations be "narrowly tailored" to further a "compelling governmental interest" and be the "least restrictive means" of doing so. Kavanaugh rejects both standards, arguing that Heller and McDonald bar any sort of balancing test, instead holding that "the scope of the right [to arms]" is "determined by text, history, and tradition."

In Heller the Supreme Court said certain "longstanding prohibitions," such as those banning "possession of firearms by felons and the mentally ill" or "the carrying of firearms in sensitive places," are "presumptively lawful." Hence the D.C. Circuit majority and Kavanaugh both consider the historical precedents for the District's regulations, coming to somewhat different conclusions. The Supreme Court also indicated that bans on "dangerous and unusual weapons" such as sawed-off shotguns are constitutional. All three D.C. Circuit judges agree that both high-capacity magazines and "assault weapons"—which under the District's law include specifically named models as well as guns with certain features, such as protruding pistol grips and thumbhole stocks on rifles—are "in common use" for "lawful purposes like self-defense," which implies that they do not fall into the "dangerous and unusual" category. For Kavanaugh, that is enough to conclude that the bans on high-capacity magazines and "assault weapons" violate the Second Amendment. But the majority adds a requirement that the prohibited items be "useful specifically for self-defense or hunting" (whatever that means), saying the evidence presented by the plaintiffs on that point is inadequate. "Even assuming [the bans] do impinge upon the right protected by the Second Amendment," Ginsburg and Henderson say, "we think intermediate scrutiny is the appropriate standard of review and the prohibitions survive that standard."

Whether these bans really are "substantially related to an important governmental objective," of course, is open to debate. But the decisive difference between the majority's test and Kavanaugh's is that the former allows "impingement" on Second Amendment rights if there is a good enough reason, while the latter stops after determining whether a specific right is covered by the amendment as it was originally understood. If so, the government may not violate that right, no matter how important or compelling its goal.

Even Kavanaugh, however, emphasizes that Heller "was not revolutionary in terms of its immediate real-world effects on American gun regulation." Rather, it "established that traditional and common gun laws in the United States remain constitutionally permissible," although "outliers" like D.C.'s laws and Chicago's handgun ban cannot pass muster.

More on "assault weapon" bans here. More on the implications of Heller here.


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  1. There should be only one test to see if gun control works: a reading test.

    If you can read the Constitution, you know gun control does not work, because it is unconstitutional. If you cannot read the Constitution, you need to have someone read it to you, and then you would know gun control doesn’t work because it is unconstitutional. If you fall outside of these two groups, you are a fucking retard that deserves to have all of their other rights taken away as a lesson.

    1. “”There should be only one test to see if gun control works: a reading test.””

      With one question.

      Define infringement.

      1. Or what is the definition of infringement?

        1. Infringement: Would you tolerate this restriction on something you, personally, thought was really important?

          If the answer is no, then it is an infringement.

          Example: Would “registration requirement for [high-speed printing and copying machines] or its onerous licensing and registration process (which includes various fees, five hours of training, multiple visits to government offices, fingerprinting, and recurring background checks)” be an infringement on the right to free speech and a free press?

          If yes, then it is also an infringement on the RKBA.

          1. It’s amazing to me people put up with cheating from the government that they’d be rioting in the street over if football leagues (NFL, NCAA, USA Football, AYF) were to do it.

            Of course, since Casey Martin (who can’t walk well) may use a golf cart because of the Americans with Disabilities Act, does that mean I (who can’t hit the ball well) may join the pro circuit and use a potato cannon?

        2. Noun 1. infringement – an act that disregards an agreement or a right.

          1. I like RC’s answer better than mine.

  2. “”intermediate scrutiny” ………. “substantially related to an important governmental objective.” “strict scrutiny” ….”narrowly tailored” to further a “compelling governmental interest” and be the “least restrictive means”

    The thing that’s annoying about these sort of standards is that there is nothing objective about them. The only one I see that can be argued objectively is “least” restrictive. If I come up with a rule that is less restrictive than yours, then yours is clearly not the “least” restrictive. Other than that, all those terms are basically opinions.

  3. In Heller the Supreme Court said certain “longstanding prohibitions,” such as those banning “possession of firearms by felons and the mentally ill” or “the carrying of firearms in sensitive places,” are “presumptively lawful.”

    The Circuit Court missed an opportunity there to justify their ruling. Anyone in D.C. who wants to own a gun with a 15 round magazine must be mentally ill, obviously.

  4. That was basically the point that Scalia made in the majority opinion in Heller, in response to Stevens’ bullshit. Something like, the people are endowed with the scope of rights they ratified, even if some panel of legislators or judges later thinks it unwise.

  5. We could go on and on about the different standards, and you really get nowhere. I do not understand why Congress does not simply take this issue away from DC Government. I live in N. Va. I can protect myself and my family there, but if I cross the river, I’m screwed. And believe me, there are areas of DC where you need a gun. It’s just stupid.


    This should be good: “Emily gets her gun.”

  7. In Heller the Supreme Court said certain “longstanding prohibitions,” such as those banning “possession of firearms by felons and -the- mentally ill”

    Please apply reason, it is more than a title:

    “felons and ‘the’ Jews” would not have escaped reason, nor “felons and ‘the’ Blacks.

    It is an interesting marriage, a precisely defined term, “felons,” with an abstraction, a “the.”

    Explain how it escapes reason. I cannot.

    Only individuals found by a court of law to be a danger to themselves or others because of a mental illness are prohibited from owning firearms. A precise definition. Jews so found may not. “Blacks” so found may not, Editors so found may not. Supreme Court justices so found may not.

    If you are so found, you may not.

    Harold A. Maio, retired Mental Health Editor

    1. Read it twice; still not sure what your point is.

  8. I have downloaded but not yet read the opinion, but from the synopsis above, it sounds similar to the nearly inscrutable SCOTUS opinion in U.S. v. Miller, where the Court basically said that the Second Amendment protected militar-style “arms” of a type useful for the common defense, and the defendants had not provided evidence that the firearm in question (a short-barrelled shotgun) was useful to an organized militia for the common defense. Never mind the easily provable fact that such arms (e.g., blunderbusses, trench guns) had been used militarily for multiple generations. Because nobody *proved* that to the Court, the Court ruled that it could not say that Miller’s sawed-off shotgun was an “arm” protected by the 2A.

    Sounds like these disingenuous fucks are taking the same tack: simply disregard the obvious and well-known, and rule that the plaintiff did not present any evidence that these firearms are “useful specifically for self-defense or hunting” – therefore, we can’t say for sure that such restrictions violate their 2A rights.

    Meh. As if I needed any extra reasons not to live in D.C.

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