D. C. Court of Appeals Upholds D.C. Registration and AWB in Heller 2

[Bartholomew Roberts]

You can find the 2-1 opinion (lengthy dissent) here:
http://www.cadc.uscourts.gov/intern...C748525791F004D84F9/$file/10-7036-1333156.pdf

Bad legal reasoning all the way around on the majority side. Essentially, thet decide that any "longstanding requirement" is "presumptively lawful" based on Heller and proceed to find that mere registration is lawful by virtue of being longstanding. They remand to the district court on the other registration requirements.

On the ban on "assault weapons" and normal capacity magazines, they first declare that they aren't even sure this infringes on a core Second Amendment right; but that even if it does, intermediate scrutiny applies and since the government has a substantial interes in safety and you are still free to use a muzzleloader in your own home for self-defense, the burden on the Second Amendment right is not outweighed by the government interest - and by the way, this interest-balancing test is absolutely not the same interest-balancing test that the Heller majority rejected from Justice Breyer; but is actually intermediate scrutiny.

 

[armoredman]

Egad, but then again, what else to expect of pampered well protected federal judges. Guess if I lived in D.C. I'd need to get 4 or 5 muzzle loading double barrel shotguns to stash around the house.
Scratch that - I'd never live or visit D.C., not now.

 

[Sebastian the Ibis]

Stephen P. Halbrook argued the cause for appellants. With him on the briefs was Richard E. Gardiner.
William J. Olson, Herbert W. Titus, and John S. Miles were on the brief for amici curiae Conservative Legal Defense and Education Fund, et al. in support of appellants.

Is it just me, or is everyone else fed up with Stephen Halbrook too? Somehow he manages to swoop in and steal Gura's clients and lawsuits, and then proceed to loose. Somebody has to get this guy to take a chill pill and go back to writing books.

 

[wojownik]

Not a fan of Halbrook either - maybe his strategy is to take an appeal to the Supremes ... he hasn't had a case up there in around 7 years now..

 

[Bubbles]

Wow. The judges who wrote the opinion totally ignored McDonald.

The case will be appealed.

 

[femoralis]

I wouldn't blame Halbrook. It doesn't matter how perfect your case is if the Judges don't care about enforcing the constitution.

 

[xcheck]

or if the judges are specifically tryinbg to force a higher court to take on the issue so they can decide it...

 

[Al Norris]

This was a typical "Kitchen Sink" case and most everyone expected it to lose.

I will say that no one expected the Court to use the "logic" of the Brady Campaign in writing their decision.

 

[Bartholomew Roberts]

I'd agree that Halbrook's approach is more traditional (throw every single argument you can dream up that lets your client win) as opposed to Gura's very civil-rights focused approach (narrow your client's problem down to a single clear-cut issue so the ultimate goal of building good precedent doesn't get sidetracked).

I don't know that I expected him to lose though, and even if he did, I kind of expected better from the D. C. Circuit Court. It is kind of dismaying how many of these Circuit Court judges are just stamping their decisions "presumptively lawful" and checking out for early drinks and golf. Ultimately, not bad for us when those decisions are challenged; but the Supreme Court isn't going to be able to grant cert in every one of those cases where this is happening.

 

[armoredman]

I think they will grant cert in this case, too hot button to ignore, methinks, especially when a lower court, right down the street, ignores SCOTUS decisions.

 

[azmjs]

Gun registration in no way, shape, or form runs afoul of the second amendment, so it is unlikely that it will ever be overturned by the courts.

It's unclear whether an assault weapons ban violates the second amendment. Maybe some day we'll find out.

 

[yokel]

Unsound and misleading rationale and legal principle defines the majority opinion, and without even attempting to be clever, plausible, and subtle!

Evidently a fair amount of judges, magistrates and other adjudicators, who form the core of a judiciary detest the Second Amendment and detest the people who seek to exercise their rights under the Second Amendment.

If they had their druthers, even that handgun in your nightstand, or that shotgun in the corner would be verboten.

Accordingly, they will do their damnedest to abridge and alter your right to keep and bear arms even if they can't utterly disarm you.

 

[azmjs]

Easy to argue against the boogeyman, isn't it yokel?

 

[yokel]

Alas, there is nothing imaginary about Supreme Court Justices and federal judges that hold their jobs for life. They are unelected, unaccountable -- and enormously influential. Is it any wonder that judicial appointments are fought over so fiercely? So much is riding on the outcome.

 

[azmjs]

Whats that have to do with your boogeyman?

 

[yokel]

You can just save the "boogeyman" crack.

To deny that rabidly anti-gun rights adjudicators do in fact exist is either naive, disingenuous or both.

 

[belercous]

To get an issue before SCOTUS a split in the circuit (appellate) courts would likely have to occur. The D.C. Circuit Court is one of (if not) the most conservative courts in the federal system. This does not bode well for us.

And even if it should come before SCOTUS, Justice Kennedy will be the deciding vote. He's a moderate who leans right, but only a bit.

 

[Bubbles]

One point we're all missing - the "reasonable regulation" level of scrutiny that was being pushed by HCI, et al, is completely off the table at this point.

 

[Neverwinter]

You can just save the "boogeyman" crack.

To deny that rabidly anti-gun rights adjudicators do in fact exist is either naive, disingenuous or both.

A spade is a spade.

One Circuit Court decision does not come close to supporting the boogeyman that is at question here.

 

[danez71]

It's unclear whether an assault weapons ban violates the second amendment. Maybe some day we'll find out.

Put your fears to bed. The second amendment does not say we can pretty much have any arm and bear them at will.

What it says is that the government cannot outlaw the keeping and bearing of arms. Not the keeping and bearing of any arms, just of arms in general.

How can you say both of those things especially when you went on to support the notion that as long as we can have black power rifles/pistol our 2A isnt being violated?

According to the 2nd statement, the AWB does not violate the 2A which your 1st statement ponders.

 

[azmjs]

How can you say both of those things especially when you went on to support the notion that as long as we can have black power rifles/pistol our 2A isnt being violated?

According to the 2nd statement, the AWB does not violate the 2A which your 1st statement ponders.

In future, please don't make things up and attribute them to me.

That aside, it's unclear whether assault rifles are constitutionally protected under the right to keep and bear arms.

We know for example that handguns are, from the Heller case, but the court has not yet decided whether or not ARs are as well.

They certainly might be.

 

[Bartholomew Roberts]

One point we're all missing - the "reasonable regulation" level of scrutiny that was being pushed by HCI, et al, is completely off the table at this point.

As a matter of black and white legal precedent, yes; but I am having a hard time seeing the difference between rational basis/reasonable regulation and the "intermediate scruitiny" approach advocated by the D. C. Circuit Court of Appeals here.

They are essentially saying that the right to own a revolver in your own home is protected by the Second Amendment; but that the right to own a semii-automatic pistol made 30 years before that revolver is not protected, even though the semi-auto in question is in common use and preferred for self-defense.

 

[wildbilll]

The court's reasoning is fundamentally flawed.
The guns that DC bans are in common use elsewhere.
Just because they have been banning them since the '70's in DC isn't a valid argument for why they are not in common use in DC.
The point of the complaint was to right a longstanding injustice.
We have a major conflict here with previous SCOTUS rulings. They will hear it.

 

[Al Norris]

Bart, the only decisions I've read that have actually used heightened scrutiny (i.e. Intermediate), were the 7th Circuit (Skoien), 3rd Circuit (Marzzarella) and the 4th Circuit (Chester). In the Ezell case, the 7th Circuit used "not quite 'strict scrutiny.'"

The other cases that have been decided at the district level were a rational basis/reasonable regulation decision, masquerading as Intermediate Scrutiny (such as this case).

The only other exception was the most current 9th Circuit decision in Nordyke. This "Substantial Burden" test is more akin to the interest balancing that the Heller Court ruled against, so I suppose this is a form of Intermediate.

 

[Bartholomew Roberts]

I agree with your analysis, Al. It seems much of the so-called "intermediate scrutiny" being given to the Second Amendment is actually rational basis. Considering that these forms of scrutiny apply to far more than just the Second Amendment, I can't help but wonder if they don't understand the potential damage to civil rights in general, including many favored causes of the left, if this type of faux-intermediate scrutiny gains traction?

This "Substantial Burden" test is more akin to the interest balancing that the Heller Court ruled against, so I suppose this is a form of Intermediate.

Well, according to the D.C. Circuit Court in Heller 2, the "substantial burden" test from Nordyke is most emphatically not the same as the Breyer interest balancing test that the majority in Heller rejected.