Judge Uphold's DC's post-Supreme Court Gun Laws

http://www.msnbc.msn.com/id/36054892/ns/politics/



Judge upholds DC's post-Supreme Court gun laws


Posted on March 26, 2010 at 12:00 PM

By SARAH KARUSH (AP) – 1 hour ago

WASHINGTON — A federal judge on Friday upheld limitations on gun ownership that the District of Columbia put in place following a 2008 Supreme Court decision overturning the city's outright ban on handguns.

Dick Heller, the plaintiff in the landmark Supreme Court case, had challenged the new regulations, claiming the registration procedures, a ban on most semiautomatic weapons and other limitations violated the intent of the high court's decision.

U.S. District Judge Ricardo M. Urbina sided with the city, saying the Supreme Court decision did not ban reasonable limits on gun ownership designed to promote public safety.

"While the (Supreme) Court recognized that the Second Amendment protects a natural right of an individual to keep and bear arms in the home in defense of self, family and property, it cautioned that that right is not unlimited," he wrote.

The decision by Urbina, who was appointed by former President Bill Clinton, moves the case along what is likely to be a lengthy path through the legal system.

"We fully expect to go the Court of Appeals," said Heller's lawyer Richard E. Gardiner.

Urbina's opinion "misinterprets Heller altogether," Gardiner said, referring to the Supreme Court decision. In particular, he took issue with the judge's observation that the Supreme Court did not explicitly declare the Second Amendment right to be "fundamental."

"It's clearly a fundamental right because it's in the Bill of Rights," Gardiner said.

The Supreme Court struck down a 32-year-old ban on handguns in Washington and a requirement that all firearms, including rifles and shotguns, be kept disassembled or bound by a trigger lock. In the wake of the ruling, the D.C. Council moved quickly to pass new regulations.

The plaintiffs claimed the new process for registering guns — which includes fingerprinting, vision tests, background checks and other requirements, and which limits people to registering one pistol per month — was too burdensome.

But Urbina found the process served "the well-established goal of promoting public safety."

The plaintiffs also challenged the city's ban on assault weapons and large-capacity ammunition feeding devices. Urbina said the Supreme Court made clear the Second Amendment doesn't protect ownership of "dangerous or unusual" weapons.

Heller, a security guard, brought the suit that ended up in the Supreme Court after the city rejected his application to keep a handgun at his Capitol Hill home. Under the current regulations, he was denied registration of certain firearms because they are categorized as assault weapons. Three other D.C. residents joined him in the suit.

Copyright © 2010 The Associated Press. All rights reserved.
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The Associated Press

Just absolute nonsense...

Read the opinion. IMHO, it's horrible rubbish
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1289-32

"Dangerous and unusual", lol.

The plaintiffs claimed the new process for registering guns — which includes fingerprinting, vision tests, background checks and other requirements, and which limits people to registering one pistol per month — was too burdensome.Sounds like an infringement to me.
Who has the tar? I have plenty of feathers.

We're gonna have bite, kick, and scratch for every little victory. They're not going to just lay down for us and make it easy.

The plaintiffs also challenged the city's ban on assault weapons and large-capacity ammunition feeding devices. Urbina said the Supreme Court made clear the Second Amendment doesn't protect ownership of "dangerous or unusual" weapons.

The unusual part may actually work in our favor. Since the election run on black rifles and such, the arguement can be made that they are not unusual, but in fact in common usage. The same for the standard 30 round magazines.

I agree that common use is the key here. I wonder how many 30 rd mags are in circulation?

I agree, they're going to have a tough row to hoe if they are relying upon finding 30 round magazines and 100 year old pistol designs with eleventy-billion in circulation to be "unusual". As to "dangerous" ... I'm at a loss for words. It's a weapon. It is dangerous. That's kinda the point, people. :rolleyes:

Mike

If it's not dangerous, it isn't much of a weapon, now is it.

If you are trying to apply logic to the decisions made by Progressive Liberal Judges, you will never convince them or their ideologue brethren. They believe what they do because they FEEL it is right, not because it is rule of law or logical.

We cannot change the way they FEEL, so we must defeat them with the ballot, which we failed at in 2008 because we are too busy making the world work while they are trying to force the real workers to "Share the Wealth".

He seems to be contradicting himself by stating that SCOTUS ruled RKBA as a natural right, but they did not declare it "fundamental". How much more fundamental can you get?

I think that this particular judge will be made to look a fool, fairly shortly. Easy case to make just from the majority opinion in the original Heller decision. The fact that most hi-cap semi autos are in such wide spread use makes this decision a complete no brainer to overturn upon appeal.

Sooo, a District Court judge tells SCOTUS to blow their opinion our their collective ears ... and he can get away with this?

What makes a DC gun an "Assault Weapon"?

I do not expect a ban on high capacity magazines to be overturned on appeal.

If 10 or 15 round magazines are allowed, as in New Jersey, banning 30 round magazines could be considered part of the political process

Banning a gun because it has a bayonet lug or a flash suppressor could be unconstitutional because its purpose is to make otherwise permitted guns contraband

One gun a month is a hassle, but it and fingerprinting and other regulations that have a rational basis are probably not unconstitutional

The vision test may be illegal because blind people also have a right to self defense and it may violate an anti discrimination statute as well

Northern VA is right across the river and guns are everywhere. Public safety? Do you feel safer walking around at night in Northern VA or DC?:evil: I dare DC to compare itself with VA. Talk about polar opposites! :D

Sooo, a District Court judge tells SCOTUS to blow their opinion our their collective ears ... and he can get away with this?

No, he can't. This decision was expected and will be appealed. After DC loses, the only question is whether they will risk appealing it to the USSC and have the decision apply nationwide (since incorporation is all but assured), or not.

Sooo, a District Court judge tells SCOTUS to blow their opinion our their collective ears ... and he can get away with this?

That's the first thing I thought of when I read of it. He takes the dissent portion of Heller to make his ruling. He'll get schooled by the SCOTUS, but it really won't matter. I imagine his appeals court over rule ratio is pretty high but he sees himself as better than the SCOTUS. I've often wondered whether this whole "life term" thing was such a good idea.

Judge Urbina was appointed by Bill Clinton. What more do any of us need to know.

One gun a month is a hassle, but it and fingerprinting and other regulations that have a rational basis are probably not unconstitutional

Doesn't that depend on what level of scrutiny one applies? Is it appropriate to apply rational basis scrutiny to a fundamental constitutional right? (there is a reason this judge wanted to say it was some other kind).

This is headed to the DC circuit and there's a good chance it will go to the SCOTUS after that. It has the potential to establish some pretty key principals in terms of what will be found to be reasonable restrictions.

The fact that evil military-pattern guns are in so many hands now is a good thing. Really, the Obama scare did us a favor. (Im not saying that he is a good thing, but so far, things are going our way, IMHO) It can easily be argued that military-style rifles are a common thing now, and therefore not "unusual". Plus, we have the example of all the states where a good percentage of the population has a "fun gun" and yet nobody is being killed with them.

When Urbina dismissed Heller II he adopted the argument of dissenting Justices in that case, that the Court's upholding of a law prohibiting possession of firearms by felons implied that the Court did not consider that laws infringing the right of law-abiding Americans to keep and bear arms should be subject to a strict scrutiny standard of review.

I was not aware that dissenting opinions in a SCOTUS (or any other multi-person appellate court) ruling could be used as precedent. I know there are a couple of Legal Scholars who come here. I would love to hear their take on the propriety and utility of Urbina's action.

I understand the difference between natural and legal rights, but I don't understand the difference between a "natural" right and a "fundamental" right.

The judge is not very bright in handing down this type of sweeping decision - but that is good.

Had the judge ruled narrowly in Heller's favor, he could have preserved some aspects of the DC laws and given DC a roadmap to narrower restrictions that would be harder to overcome in future cases. Tactically, this decision is the equivalent of the judge stomping his foot and shouting "no" rather than cleverly trying to stand in the way of gun rights.

Also, had the judge ruled narrowly in Heller's favor, it would have prevented Heller from appealing. Now, Heller can appeal the decision, which is very valuable. District court decisions do not create binding precedent; appellate court decisions do create binding precedent. Binding precedent is very important in this case because it can begin to define the parameters of the individual right decided by the Supreme Court.

"Dangerous and unusual!?!?"

If dangerous means effective, then what's the point of having the right to bear ineffective arms?

If dangerous means unsafe, I think the manufacturers would like to know about their products' deficiencies.

What's unusual about the kind of firearm that is the primary weapon of millions of soldiers of every nation around the world?

"Dangerous and usual" is a pack of rabid squirrels, trained to scurry up pant legs and crack nuts on command.

Well, I thought I had posted this yesterday, but the forum was too busy to respond. So here goes again. I am simply going to baldly plagiarize an acquaintance who had an interesting legal observation.

The US District Court for the District of Columbia has upheld the post-Heller promulgated registration rules that require the submission of fingerprints, photographs, and payment for a ballistics test as well as the ban on "assault weapons" and high-capacity magazines.

They noted that D.C. v. Heller expressly held that the ruling should not be construed as "[casting] doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” They also stressed that SCOTUS failed to specify a standard of review (my long-term gripe and one I've written about at length).

As a result, the District Court rejected strict scrutiny in Second Amendment cases and appears to have applied the lowest level of scrutiny, that of rational basis review, in upholding essentially any restriction D.C. might impose so long as there is any "substantial nexus between the registration requirements and the important governmental interest underlying those requirements." Basically, if the government can come up with some "rational" basis for the restriction, then the court will uphold it as Constitutional.

Some might call the standard of review applied in this case "intermediate scrutiny" - and the Court does so expressly in this case - but looking at the result and what can be inferred as "appropriate" regulation by this Court, I don't buy that for a second. It's little more than rational basis review with the intermediate moniker.

If this is the future of review for Second Amendment cases, then D.C. v. Heller, oft called a "watershed" ruling by the Supreme Court, may well find itself insignificant in history. An interesting footnote, but otherwise unpersuasive. Hopefully, SCOTUS will correct this in McDonald as this new "Constitutional" gun ban in D.C. is nothing more than D.C. thumbing its collective nose at SCOTUS.

The full opinion is here:

Heller v. District of Columbia (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1289-32)

Soooo, the Constitution doesn't mean what it says, and SCOTUS doesn't mean what it says ...

Now I'm totally confused as to the meaning of "rule of law".

Soooo, the Constitution doesn't mean what it says, and SCOTUS doesn't mean what it says ...

Now I'm totally confused as to the meaning of "rule of law".
The nature of the current beast is that the law says whatever a judge says it says until a higher ranking judge agrees or disagrees.

Wierd huh?

Kind'a why I agree with the notion that 10,000 lawyers at the bottom of the ocean represents a good start.

One court has spoken, speech that hopefully will be rejected. We shall see I guess. The following is the relevant text from an NRA alert.



Heller v. District of Columbia, NRA's case challenging D.C.'s prohibitive firearm registration requirements, and its bans on "assault weapons" and "large capacity ammunition feeding devices." Mr. Heller was, of course, lead plaintiff in District of Columbia v. Heller, decided by the Supreme Court in 2008.

Judge Urbina rejected Heller's assertion that D.C.'s registration and gun and magazine bans should be subject to a "strict scrutiny" standard of review, under which they could survive only if they are justified by a compelling government interest, are narrowly tailored to achieve that interest, and are the least restrictive means of achieving that interest.

In support of that rejection, Urbina opined that in District of Columbia v. Heller (2008) the Supreme Court "did not explicitly hold that the Second Amendment right is a fundamental right," and he adopted the argument of dissenting Justices in that case, that the Court's upholding of a law prohibiting possession of firearms by felons implied that the Court did not consider that laws infringing the right of law-abiding Americans to keep and bear arms should be subject to a strict scrutiny standard of review.

------------------------------

Is one to take it that Judge Urbina and some on the USSC cannot tell the difference, or do not know or care about the difference between felons and the law abiding? One wonders. One also wonders as to the exact text of D.C.'s Assault Weapons Ban, not to mention it's source. As to "large capacity ammunition feeding devices", wither comes the definition herein involved. What of that thing sometimes described as OEM (Original Equipment Manufacturer or Maker). The Browning Hi-Power, for instasnce, ORIGINALLY and to this day comes with 13 round magazines, they being MANUFACTURERS STANDARD. The widely distributed CZ-75's standard magazine holds 16 rounds, and is again MANUFACTURERS STANDARD. Re the above, where is or where might there be this "compelling government interest", which I would think would be limited by the clear meaning of stipulations of/in The Constitution and Bill of Rights.

Seems once again, sad that D.C. v Heller was not settled in the clearest possibly terms, alibet without that plethora of "lawyers talk", that it was seemingly entumbed in or with.

U.S. District Judge Ricardo M. Urbina should be impeached for STUPIDITY!

The judge is not very bright in handing down this type of sweeping decision - but that is good.

Had the judge ruled narrowly in Heller's favor, he could have preserved some aspects of the DC laws and given DC a roadmap to narrower restrictions that would be harder to overcome in future cases. Tactically, this decision is the equivalent of the judge stomping his foot and shouting "no" rather than cleverly trying to stand in the way of gun rights.

Also, had the judge ruled narrowly in Heller's favor, it would have prevented Heller from appealing. Now, Heller can appeal the decision, which is very valuable. District court decisions do not create binding precedent; appellate court decisions do create binding precedent. Binding precedent is very important in this case because it can begin to define the parameters of the individual right decided by the Supreme Court.
this is well written. thanks

Maybe the SCOTUS should do a better job at clarifying what they mean rather than leaving it open to interpretation for some lower court judges.... they answered one question, but opened to door to many many others... and it's a shame too because this has come at the cost of decades and probably millions of dollars in costs by all interested parties over the course of decades... and yet the SCOTUS had an opportunity to really shed some light on this but instead left enough ambiguity for this crap...

I know, I know... the balance of the court may have caused this ambiguity to earn that critical swing 5-4 vote.. but it's still frustrating that we are where we are. The law seems to be on our side but the anti-gunners continue to disregard it.

I find it inconceivable that he references the dissenting opinion in this. For anyone who works in law, is this type of practice common? I mean on one side the SCOTUS is THE reference and all the justices are looked at as experts in the field so leaning on one of their decisions (dissenting or not) seems to be at least partially valid on SOME cases. However, when arguing that particular decision, to go to the dissenting viewpoint seems almost like wiping dog poop on the SCOTUS bench, at least on the majority in this decision.

leadcounsel:

To damned much "lawyers talk", but what might one expect from lawyers, plain English?

You're talking about a judge who had only four years of courtroom experience before being appointed to the bench. I know lawyers who have briefcases with more courtroom time. In fact, I wouldn't doubt that there are criminals with more courtroom time. He was a teacher at Howard University for nearly twice as long as he was a practicing attorney. On top of that, the majority of his judicial experience had been in family court before being appointed during the Clinton Administration..

On top of that, the majority of his judicial experience had been in family court before being appointed during the Clinton Administration..


Which begs the question: What the heck qualified this guy to be a judge in the 1st place?

I don't know, Werewolf. Over a period of a year, 2008-2009, he's also ordered the release of 32 detainees from Guantanamo.

there's a reason why Clinton fired 92 federal judges during his term. it wasn't random or whimsy. we're still paying for it today.

there's a reason why Clinton fired 92 federal judges during his term. it wasn't random or whimsy. we're still paying for it today.
Ummmm...
You got a cite for that.

Federal Judges are appointed for life and can only be removed thru the impeachment process. The Pres can't fire a federal judge.

I believe the 92 number applies to Federal DA's. There was a flap about it at the time but it didn't get near as much press as when Bush did the same thing. Gee! go figure.

Ummmm...
You got a cite for that.

Federal Judges are appointed for life and can only be removed thru the impeachment process. The Pres can't fire a federal judge.

I believe the 92 number applies to Federal DA's. There was a flap about it at the time but it didn't get near as much press as when Bush did the same thing. Gee! go figure.

You're right. It was Federal prosecutors, not Federal judges. The prosecutors serve "at the pleasure of the president" and when Clinton shuffled them around it was OK, but when Bush did the same thing it was a "scandal". :rolleyes:

If it's not dangerous, it isn't much of a weapon, now is it.

Amen to that Noxx

Next Challenge to Gun Laws Headed to D.C. Circuit Court of Appeals (http://www.law.com/jsp/article.jsp?id=1202447460719)

David Ingram
The National Law Journal
April 05, 2010

A federal appeals court in Washington, D.C., will have the chance to examine the latest version of the District of Columbia's gun restrictions, in a possible test of how to apply the U.S. Supreme Court's 2008 decision in D.C. v. Heller.

Lawyers for Dick Heller, a name party in the earlier case, filed a notice Thursday that they will continue fighting in this follow-up case. They are appealing to the U.S. Court of Appeals for the D.C. Circuit to reverse a March 26 decision by U.S. District Judge Ricardo Urbina. That ruling upheld new restrictions the D.C. Council passed in the wake of the 2008 decision. For example, all handguns must be submitted to D.C. police for a ballistics identification process.

Stephen Halbrook, a lawyer for Heller, said a week ago that an appeal of Urbina’s decision was likely because, he said, the judge was overly deferential toward the city. Lawyers for the District say the council worked to strike a balance between Second Amendment rights and public safety concerns.

The original Heller case, then known as Parker v. D.C., also went through the D.C. Circuit. In a March 2007 decision, Senior Judge Laurence Silberman wrote that Heller had standing to challenge the District’s gun laws and that the laws in place at the time were unconstitutional. Heller, of course, won before the Supreme Court in a decision that said the Second Amendment protects an individual right to bear arms.

I don't know enough about the legal system (definitely not nearly as much as many of the posters in this thread), but if this case goes to the Supreme Court, AWB and "hi-cap" :barf: magazines and all, could this mean a repeal of the state AWBs and ban on high-capacity magazines still in place in, for example, NY state? I'm guessing it would depend on the exact wording of any future decision.

I don't know enough about the legal system (definitely not nearly as much as many of the posters in this thread), but if this case goes to the Supreme Court, AWB and "hi-cap" :barf: magazines and all, could this mean a repeal of the state AWBs and ban on high-capacity magazines still in place in, for example, NY state? I'm guessing it would depend on the exact wording of any future decision.

It could but there's just as much a chance that the SCOTUS will uphold the rediculous ruling.

I don't want to even think about what that would mean.

NOXX said: "If it's not dangerous, it isn't much of a weapon, now is it."

This made me think of the story about old Charlie Miller who was one of the most famous Texas Rangers. The story is: "Texas Ranger Charlie Miller was minding his own business when a concerned citizen came up to him, noted the hammer cocked back on the big 1911 dangling from the Ranger's belt, and asked, "Isn't that dangerous?" Charlie replied, "I wouldn't carry the son-of-a-bitch if it wasn't dangerous."" :-)

"'Lawyers for the District say the council worked to strike a balance between Second Amendment rights and public safety concerns"
so basically the D.C. council is saying they understand 2a rights and are willing to defy scotus anyway. sigh