In Heller II, the sequel to 2008′s landmark Second Amendment case, District of Columbia residents and officials again go to battle over the city’s gun laws.
And like any good sequel, many of the main characters are back: There’s Dick Heller, the lead plaintiff in the first Heller v. District of Columbia case, who is fighting to overturn the city’s firearm regulations. The Brady Center to Prevent Gun Violence, represented by Wilmer Cutler Pickering Hale and Dorr, is helping defend them. And the case is winding through the U.S. District Court for the District of Columbia, where the first fight also developed. A few players are sitting out this fight, including Alan Gura, who argued the original Heller case before the U.S. Supreme Court. But the case has many of the hallmarks of the first.
At stake are the new firearm regulations the District set out in response to the high court’s watershed decision two years ago. The restrictions, city officials said, are designed to monitor, control and limit the availability of firearms. The venue is the U.S. Court of Appeals for the D.C. Circuit, which next month will hear the challenge to the registration procedure, a ban on assault weapons and a limit on the amount of ammunition firearms may hold.
The plaintiffs said the case is a test to determine just how far a municipality can go in crafting provisions to regulate gun ownership. “How hard can you make it on gun owners to exercise a constitutional right?” said Stephen Halbrook, the Fairfax, Va., solo practitioner who will argue for Heller. “If the District’s version is affirmed by the court, it would mean a legislative body could get away with anything to make life onerous.”
Judge Ricardo Urbina of the U.S. District Court for the District of Columbia sided in March with the District, saying there is a “substantial nexus” between the requirements and the government’s interest underlying the restrictions.
Lawyers representing the city and gun control advocates said a ruling against the regulations would threaten restrictions across the country. “The District of Columbia fully respects the Heller decision,” said Solicitor General Todd Kim of the D.C. Office of the Attorney General, who will argue the case for the city, in an e-mail. “This case is about how a government after Heller can allow gun possession and the use of guns in self-defense while taking responsible steps to protect public safety.”
In the first Heller case, the high court said D.C. residents have a Second Amendment right to own a handgun “in defense of hearth and home.” Following up that blockbuster, the Supreme Court in June said in McDonald v. City of Chicago that Second Amendment rights apply to the states.
Lawyers for the District rely heavily on the Supreme Court’s ruling in the first Heller case, saying that the Second Amendment is not an “unlimited” right. The right to bear arms, the high court said, is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Heller and the three other named plaintiffs never say that any of the challenged provisions undermine their ability to defend themselves, the District’s attorneys said in court papers filed in September. And the District’s attorneys point out that the plaintiffs successfully registered firearms.
The ban on assault rifles, the city’s lawyers said, only applies to a fraction of guns and leaves the plaintiffs with “myriad choices of guns for self-defense.”
“Such measures promote the public interest in safety without meaningfully limiting what law-abiding gun-owners can do,” Kim said. “The District does not believe the Second Amendment provides anyone with a constitutional entitlement to a secret arsenal of military-style weapons.”
Halbrook and plaintiffs’ co-counsel Richard Gardiner said the District’s banned firearms are commonly used in sport and that the District’s registration requirements are “highly unusual.”
A person who wants to register a firearm in the District must demonstrate a knowledge of D.C. firearm laws, pass a written test and complete a training course, according to court records. The course calls for four hours of in-class training and an hour at a shooting range. There are no public firing ranges in the District.
Applicants are also required to disclose any business or occupation held in the previous five years and to provide the intended use of the firearm. The D.C. firearm laws also require the applicant to submit fingerprints and photographs. Certification expires every three years.
Heller’s lawyers said the District’s regulations are like none other in the country. No state except for Hawaii, the plaintiffs’ lawyers said, require the registration of all firearms.
The plaintiffs’ attorneys attack the District’s registration scheme outright, calling it unlawful. They said the Second Amendment should be treated like other rights.
“Just as one may not be required to register to exercise the rights to freedom of religion and speech, a person may not be required to register merely to possess a firearm in his or her home,” Heller’s attorneys said in appellate court papers filed in July.
A plaintiff in the suit, Absalom Jordan, said the District has blocked his registration of an AR-180 rifle.
“I own it. It’s mine. It’s a piece of property,” said Jordan, 69, a member of his advisory neighborhood commission in southeast Washington. “I’m saying to you, I want it. I want to ensure my constitutional rights as regards to the Second Amendment are protected.”
Asked about his intended use of the rifle, Jordan said: “Personal protection. Target practice. Sporting. I list all of the categories a person can use a firearm for.”
A RIGHT TO AN ARSENAL?
When the case comes up Nov. 15 in the D.C. Circuit, one of the judges on the panel is already familiar with the District’s gun laws. Karen LeCraft Henderson, who will hear the case with judges Douglas Ginsburg and Brett Kavanaugh, was the lone voice of dissent in 2007 when the D.C. Circuit ruled in favor of Heller. Henderson declared in her separate opinion that the Second Amendment does not apply to District residents because D.C. is not a state.
Wilmer lawyers for the Brady Center to Prevent Gun Violence said the Heller plaintiffs want to expand the individual right the Supreme Court recognized to mean “a right of unqualified and untrained persons to amass an arsenal of firearms.
“This vast expansion of the Second Amendment would cripple law enforcement by precluding common-sense laws needed to stem the epidemic of gun violence that harms more than 100,000 Americans every year,” Wilmer Cutler Washington partner Paul Wolfson said in an amicus brief filed in September.
O’Melveny & Myers partner Matthew Shors represents a group of professors and legal historians who say there is “ample historical precedent” to support the gun regulations the District enacted after the first Heller decision. “My hope is it’s a no-brainer that these laws are constitutional,” Shors said. He called the District’s gun regulations “more garden-variety gun control law.”
On the other side, supporting Heller, are groups that include the Virginia-based Gun Owners Foundation and the Virginia Citizens Defense League.
“The really important thing about Heller II is whether the Second Amendment will be meaningful,” said an attorney for the groups, Herbert Titus, of counsel to William J. Olson P.C. in Vienna, Va. “The new law in D.C. laws is as anti-firearm as it was in the beginning.”
Mike Scarcella can be contacted at firstname.lastname@example.org.