Heller v. District of Columbia — Amicus Brief

Michael Harless Constitutional Law, Firearms Law, U. S. Court of Appeals, District of Columbia Circuit

Today, our firm filed an amicus brief in the U.S. Court of Appeals for the District of Columbia Circuit, supporting another challenge by the legendary Dick Heller to the District of Columbia’s onerous firearm registration and licensing requirements. This is our firm’s third amicus brief supporting Heller’s challenges to these DC gun regulations. In 2008, the Supreme Court adopted the type of analysis recommended by our first amicus brief.

After its 2008 loss in the U.S. Supreme Court in the first Heller case, the DC City Council crafted new registration and licensing regulations which technically permit possession of handguns in the home, but are so onerous as to effectively make the process so difficult and expensive that few can ever obtain a firearm.

This new regulatory scheme was challenged, winding up in the DC Circuit, where we filed our second amicus brief in Heller II. The DC Circuit disregarded the Supreme Court’s instructions in Heller I to apply the text, history, and tradition of the Second Amendment to the DC gun control scheme. Instead, the DC Circuit sent the case back to the district court with orders to apply “intermediate scrutiny” — the very “judge-empowering” interest-balancing test the Supreme Court had rejected in Heller I.

Freed to “balance the interests” in whatever way he saw fit, the district court judge placed DC’s alleged interests in police and public safety above Americans’ constitutional rights.

Next, our brief argued that DC’s registration scheme is so riddled with exceptions that it violates the primary purpose of the Second Amendment — to ensure that all of “the people” are able to defend themselves and resist tyranny. Instead, the DC laws make it only so that government agents and members of the wealthy and powerful elite classes in the District have easy access to firearms.

Next, our brief deconstructed the district court’s argument that gun laws are more easily justified in densely-populated, urban centers such as DC. The Supreme Court in Heller I rejected just such an argument, noting that the protections of the Second Amendment are uniformly applicable coast-to-coast. If federal constitutional rights are to be the same in Washington, D.C. as they are in Cheyenne, Wyoming, federal courts must reject special pleading by big city mayors and their police chiefs who want to deprive their citizens of their rights as citizens under the U.S. Constitution.

Finally, our brief points out the absurdity of the district court’s decision that one handgun per month is “more than enough” for District residents. It is not up to federal judges to decide which or how many constitutional rights a person gets to exercise.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution, Conservative Legal Defense and Education Fund, Policy Analysis Center, Downsize DC Foundation, and DownsizeDC.org.

Link to brief

Decision of September 28, 2015