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Heller II: Defeating Red Tape & Second Amendment Infringements

by Frank Miniter   |  December 23rd, 2013 20

AP Photo/Jose Luis Magana

Dick Anthony Heller is still fighting for his Second Amendment rights. In a case known as “Heller II,” he is one of five plaintiffs who want a court to ultimately declare Washington D.C.’s gun registry and other gun-control regulations unconstitutional.

In 2008, the U.S. Supreme Court heard District of Columbia v. Heller and ruled 5-to-4 that the Second Amendment is indeed an individual right. This decision struck down D.C.’s outright ban on handguns as well as regulations requiring all firearms be kept “unloaded and disassembled or bound by a trigger lock.”

These laws made it impossible for a homeowner to use a firearm in defense of their life. They also put Dick Anthony Heller in a twisted dilemma. As a special police officer in D.C., he carried a handgun in federal office buildings to protect government personnel, but he was not allowed to have a handgun or a viable long-gun for his own protection in his D.C. home.

After the Supreme Court’s 2008 decision to “give” D.C. residents their Second Amendment rights, D.C. government created a gauntlet of thorny regulations, and now very few D.C. residents have the ability to utilize their Second Amendment rights.

Almost 5 years later, Heller still can’t protect himself as he goes to and from work in D.C.

Now, “Heller II” asks and attempts to answer what is surely the biggest question plaguing the Second Amendment of the U.S. Bill of Rights: When does government red tape unconstitutionally infringe upon the people’s right to bear arms?

In a recent interview, Heller told me, “I’m just an ordinary guy who decided to make a stand because my constitutional rights have been infringed. I carry a gun when protecting people in a federal building, but then I check in the gun when I leave.” He went on to say, “I often get off work at midnight. So I have to make my way home disarmed through D.C. I’ve been approached by bad guys, but at least I’m a guy. If I were a woman, I wouldn’t be able to keep this job. It would be too risky. It’s these basic rights of life and liberty we’re trying to win back with Heller II.”

This challenge to D.C.’s gun laws has been working its way through the courts for a number of years. In October 2011, the U.S. Court of Appeals upheld what it called a “basic” registration of handguns, but questioned whether any registration of rifles and shotguns is constitutional. The court remanded the case to the district court to gather further evidence on whether D.C.’s gun laws are reasonable.

As Heller explained, “D.C. obviously grabbed every gun-control restriction they could find from the 50 states and included almost all of them in its gun-control ordinances. This is how they created a system so burdensome to the Second Amendment, we still don’t have our right to bear arms here in D.C.”

The plaintiffs’ attorneys, Stephen Halbrook and Dan Peterson, have deposed D.C.’s witnesses and filed a motion in U.S. District Court for the District of Columbia, asking Judge James Boasberg for summary judgment on whether D.C.’s gun registration and other laws are “reasonable” based on the evidence.

The plaintiff’s briefing shows D.C. gun regulations are clearly unconstitutional, for three major reasons:

1. A Gun Registry for Good Guys?
Starting Jan. 1, 2014, every gun owner in D.C. who has registered a firearm since 1976 must be fingerprinted and photographed at police headquarters.

Halbrook believes, “If D.C. gets its way, gun owners will have to do this every three years. Even those who have the time and money to make it through this difficult process will find they’ll never be done, as D.C. is still trying to burden them with expiration and re-registration deadlines that, if missed, would turn them into criminals.”

Halbrook also pointed out that long guns are rarely used in crimes, and this clearly shows the laws are only designed to impede people from legally owning guns.

The facts back him up. According to data provided by D.C. to the FBI for 2009, only two out of 144 murders in D.C. were known to have been committed with a long gun. In 2010, out of 131 murders in D.C., not one is reported to have been committed with a rifle or shotgun. In 2011, only one murder in D.C. was reported to have been committed with a long gun (a shotgun), out of 108 total murders.

Given that less than one percent of murders are being committed with long guns, how can D.C. justify the onerous need for fingerprinting residents every three years? For context, realize that for the same time period—2009-2011—96 homicides were reportedly committed with knives and weapons other than guns and fists.

When questioned about the need for these laws, D.C.’s witnesses weren’t able to cite a single study indicating that its firearm registration prevents illegal possession of firearms. Actually, studies show that registration laws haven’t had a measurable affect on crime rates or gun violence.

During deposition, D.C. Police Chief Cathy L. Lanier even conceded: “It is not clear how firearms’ registration records could be used to ‘prevent’ a crime.” Other than possession offenses, Lanier could not “recall any specific instance where registration records were used to determine who committed a crime.”

Lanier couldn’t even provide a single example of a registration record being used to solve a crime committed with a long gun.

2. Residents Must Apply to the Government for Their Rights?
Washington D.C. is essentially forcing residents to seek permission above and beyond a federal background check for owning any firearm. According to D.C. laws, “no person or organization in the District shall possess or control any firearm, unless the person or organization holds a valid registration certificate for the firearm.”

Possession of an unregistered firearm is punishable by imprisonment for one year and a $1,000 fine, and a second offense yields up to five years in prison and a $5,000 fine.

D.C. doubles down on its red-tape infringements by requiring residents—they deem them “applicants”—to appear in-person at the police for fingerprinting and photographing. There are also fees to register each firearm.

To find a legal precedent for using a registry for long guns, D.C. cites an 1896 law from the Republic of Hawaii that required a license to possess a firearm—1896 Hawaii was of course an independent and undemocratic country.

D.C. argues that “laws requiring the registration of certain types of long guns at the federal level has [sic] proven ‘highly successful’ in reducing the use of such long-guns in crime.” D.C. naturally doesn’t cite any data or study to back this claim up.

D.C. also cites an 1893 Florida statute that empowered officials to grant a license for individuals to carry a pistol or repeating rifle. However, this law didn’t require a license to possess a firearm, and according to background dug up by Halbrook, was only passed “for the purpose of disarming the negro laborers,” according to one of the justices at the time.

Those outdated case laws beg the question: Why, after the Supreme Court decided Heller in 2008, has D.C. decided to float a re-registration scheme?

Halbrook noted, “[D.C.’s] own witnesses cite no studies showing that periodic registration renewal or reporting requirements reduce crime or protect police officers.”

3. Is D.C. Really Doing this for “Officer Safety”?
Police Chief Lanier and the officers who oversee D.C.’s Firearms Registration Section are quoted in the brief from the plaintiffs’ attorneys, noting there were only two handgun applications denied by D.C. in 2011 and 2012. During this period, not a single rifle or shotgun application was refused. This, of course, isn’t surprising. Rather than having themselves voluntarily fingerprinted and photographed, criminals are just packing guns when and where they see fit.

The numbers illustrate the realities. From 2007 to 2013, the police seized 12,000 unregistered firearms. Meanwhile, only 36 registered guns were seized during this same period. Of those 36 guns, only 17 were involved in charges against a registered firearm owner. Of those 17 cases, only two resulted in convictions for a violent crime. Clearly, the good guys with the guns—the ones burdened by gun-control regulations—are not the problem.

In actuality, this case has shown that officers responding to calls are not even being informed if there is a registered firearm at a location. Police cars aren’t equipped with a computer that can access the firearms registry, and dispatchers can’t check the registration database. Right now, the whole system is simply a gauntlet designed to prevent law-abiding citizens from utilizing their Second Amendment rights.

Halbrook believes this case will likely be decided the spring of 2014. This decision will surely be used as a precedent in other cases where citizens are challenging burdensome restrictions to their Second Amendment rights. We’ll keep you informed as this case is adjucated.


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