The Volokh Conspiracy
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The U.S. Court of Appeals for the District of Columbia Circuit today ruled that several parts of the District's gun registration law violate the Second Amendment. The court held the following provisions unconstitutional:
- registered guns be re-registered every three years.
- a gun must be physically brought to the D.C. police headquarters in order to registered.
- persons seeking to register a gun must pass a test about firearms laws.
- prohibition on registering more than one handgun per month.
At the same time, the court upheld other requirements, including that gun owners be fingerprinted and photographed.
The opinion was written by Judge Douglas Ginsburg, and joined by Judge Patricia Millett. Judge Ginsburg was appointed by President Reagan in 1986, and Judge Millett was appointed by President Obama in 2013. Judge Karen LeCraft Henderson dissented. She was appointed by President George H.W. Bush in 1990. She had previously dissented in the 2007 case that ruled the D.C. handgun ban unconstitutional, Parker v. District of Columbia. The majority opinion in that case was upheld by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller.
Today's decision involved the same lead plaintiff, Dick Anthony Heller, as the Supreme Court case. The plaintiffs were represented by Stephen Halbrook, who has previously won four Supreme Court cases involving gun control laws. Among those victories was the parallel cases of McDonald v. Chicago and NRA v. Oak Park, which were jointly decided by the Supreme Court in 2010, making the Second Amendment applicable to state and local governments. Halbrook represented the NRA, as he has done in many previous cases.
In evaluating the constitutionality of D.C.'s firearms laws, the court applied "intermediate scrutiny." The test asks whether a law "promotes a substantial governmental interest that would be achieved less effectively absent the regulation," and whether "the means chosen are not substantially broader than necessary to achieve that interest."
D.C.'s basic requirement that guns be registered was upheld, because it imposed only a "de minimis" burden, similar to the burden of registering an automobile. Fingerprinting was valid because it can deter people fraudulently obtaining firearms by using a counterfeit driver's license. Photographing helps police determine that a person who has a gun registration certificate is indeed the person named on the certificate. The D.C. fees of $35 for fingerprints and $13 per gun for registration were constitutional because they simply covered the costs of administering laws that were themselves constitutional.
The laws that were ruled unconstitutional failed because they did not advance a government interest "in a direct and material way." The "direct and material" requirement comes from Supreme Court precedent such as Turner Broadcasting v. FCC (1994).
D.C. had presented no evidence that requiring a gun to be brought to the police station would enhance public safety. As the court observed, "common sense suggests a person would not go to the trouble of obtaining a registration certificate for a weapon other than a weapon in his possession." Besides that, carrying the gun to the police station created the risk that the gun (which by D.C. law must be unloaded when transported in public) could be stolen en route, or that a police officer might shoot a person who is seen carrying a gun or a gun case.
As for triennial re-registration, D.C. merely speculated about the alleged benefits. Supposedly, re-registration would allow the D.C. police to find out if a gun had been lost or stolen. But the as the court pointed out, D.C. has a separate law that requires immediate reporting of lost or stolen guns. According to the court, "burdening every gun owner" with re-registration was not justified by mere administrative convenience to the District.
It was constitutional to mandate that registrants take a one-hour safety course. Although there was no social science about the benefits of safety training, it could be upheld on the basis of "'history, consensus, and simple common sense' when the three are conjoined." However, the requirement that registrants pass a test on D.C. firearms law was "supported by no evidence whatsoever, not even anecdotal evidence."
Finally, D.C. had forbidden the registration of more than one gun per month, because that supposedly would reduce gun trafficking. But "the suggestion that a gun trafficker would bring fewer guns into the District because he could not register more than one per month there lacks the support of experience and of common sense."
D.C. had also argued that reducing the numbers of guns in general (by limiting gun acquisitions) would reduce gun accidents, gun crime, and so on. "Accepting that as true, however, it does not justify restricting an individual's undoubted constitutional right to keep arms (plural) in his or her home, whether for self-defense or hunting or just collecting, because, taken to its logical conclusion, that reasoning would justify a total ban on firearms kept in the home."
All the briefs and other filings in the case are available at the Web site of the Michel & Associates law firm. The firm represented amici Pink Pistols (gay gun rights), Second Amendment Sisters, Women Against Gun Control and the California Rifle & Pistol Association. The April oral argument is also available here.