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DC taxpayers will pay for City Council’s gun ban redux

Since the United States Supreme Court's decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) the District has continued its unconstitutional ban on gun possession in the District of Columbia by non-residents, as well as the ban on gun carry outside the home even for residents. These injuries were not at issue in the Heller case, nor was the constitutionally suspect registration requirement because the Plaintiffs did not challenge registration per se, just the ban on registering handguns.

But in December, 2008 amidst all the hubbub leading up to President Obama’s inauguration, the DC City Council, in addition to extending the closing time for bars, quietly enacted 2 new bills which became effective in January, 2009. These bills, inter alia, ban the registration (and thus ownership) of a large number of ordinary rifles, shotguns, and handguns merely because they contain certain apparently cosmetic offensive features, such as pistol grips, or because they are not on the California Roster of Handguns Certified for Sale. 

The City Council’s action to ban scary looking long guns with, say, pistol grips is particularly curious because during the Heller litigation the District argued that the handgun ban was justifiable because residents could simply use long guns to defend their families in their homes. A pistol grip on a rifle or shot gun makes the gun easier to maneuver in close-in fighting particularly in a home – and short barreled rifles known as carbines (which fire lower power pistol ammunition) are particularly useful and appropriate for close in home and urban self-defense. Here’s the carbine I own and keep handy at home chambered in 9 mm just like my primary carry handgun – the magazines for both guns are fully interchangeable.

The Council’s decision to bootstrap the California Roster of Handguns Certified for Sale to limit the registerability of ordinary handguns is similarly a plainly arbitrary restriction as the roster only includes handguns whose manufacturer has filed an application with the California Attorney General for inclusion on the list. And unlike the DC gun ban redux, California does not ban ownership of handguns not on the list – it merely bans gun dealers from offering handguns not on the roster for commercial sale. But not in DC – nope, inherit a gun from grandpa not on this far away California list and you’re outta luck. Movin' into DC with a handgun not on this list? Better drop it in the Potomac as you cross the 14^th St. Bridge. 

[Note to the serious - that was a joke – just store your gun somewhere safe outside the District so you can maintain standing to sue the City :) ]

The Heller opinion did not specify the level of constitutional scrutiny to be applied to governmental restrictions on gun ownership, but suggested that strict scrutiny should be applied. See Heller at n.27; Robert A. Levy, Looking ahead to Heller’s new paradigm, Cato Unbound, July 22, 2008. Strict scrutiny essentially means the burden is on the government to justify its infringement of a right (i.e., the citizen usually wins). But these new arbitrary restrictions on the ownership of ordinary guns don’t even pass the giggle test, better known in legal circles as the rational basis test. 

Under the rational basis test, the onus is on the citizen to show why the governmental action should be overturned (i.e., the government usually wins). But the DC City Council’s gun ban redux irrationally bans certain guns merely because they have cosmetically offensive but functionally useful features such as a pistol grip, or because a gun happens to not be on a list of guns allowed for commercial sale in California, merely because, for example, the manufacturer might be out of business or not doing business in the United States. Such arbitrary restrictions on constitutional rights invite civil rights lawsuits because such suits are likely to prevail even under rational basis scrutiny. Further, such measures are inviting "low hanging fruit" targets for gun rights organizers who want to establish more authority to buttress the Second Amendment without overreaching and setting a bad precedent.

DC taxpayers, already on the hook for a $3.5 million dollar bill for Mr. Heller’s legal fees, should note that San Francisco taxpayers also just got stuck for over $800,000 in legal fees relating to the San Francisco City Council's unsuccessful effort to defend their city’s gun ban. In the end, it’s the District’s taxpayers who will pay for the DC Council’s dangerous game with the people’s gun rights.  

But at least the DC Council's draconian new gun control scheme does come with silver lining – easier access to mail order gun carry permits. More on that in my next column.