September 18, 2015
Today, the U.S. Court of Appeals for the District of Columbia Circuit ruled in Heller III -- in a case where Gun Owners Foundation had submitted a brief.
GOF’s amicus brief in this case rebuked DC judges for consistently abandoning the first principles articulated in the 2008 Heller decision handed down by the U.S. Supreme Court, and we took the District Court’s opinion to task for permitting sociology and statistics to trump constitutional rights.
When Dick Heller's first challenge to D.C.'s gun laws reached the U.S. Supreme Court, on February 11, 2008, we filed an amicus brief in support. When the case was decided later in 2008, were astonished how Justice Scalia's opinion tracked the argument in our brief -- rejecting balancing tests, and embracing a textual/contextual/historical analysis. (Heller I).
After that 2008 decision, the District of Columbia government set about revamping its gun laws, attempting to salvage as many restrictions as possible. Dick Heller again challenged this new registration scheme and the accompanying requirements in the U.S. District Court for the District of Columbia (Heller II). The district court dismissed the challenge, finding that all of the requirements were constitutional because they were all “presumptively lawful” regulatory measures.
On appeal, on July 30, 2010, we filed an amicus brief arguing that the district court had ignored Heller’s rejection of interest balancing and had applied a hugely deferential standard of review that essentially rubber stamped the District’s new requirements. Public safety, we argued, is no justification for infringing a right that “shall not be infringed.”
Ignoring our arguments, the majority of the U.S. Court of Appeals for the D.C. Circuit held that registration of handguns is constitutional because it is a “de minimis” interference with Second Amendment rights. Nevertheless, the appeals court remanded the case to the district court to evaluate the individual registration requirements under intermediate scrutiny. Writing in dissent, however, Judge Kavanaugh adopted the same approach that we had advanced in our brief, which he called the “text, history, tradition” approach. As we had put it, if a person is part of “the people,” a weapon is an “arm,” and the activity is “keeping” or “bearing,” there is no government interest, however “important” or “compelling,” that can justify “infringing,” “limiting,” or “impinging” Second Amendment rights. At that time, Judge Kavanaugh’s opinion was the only opinion in the country by a federal judge who faithfully applied the Supreme Court’s framework from Heller I, the one laid out in our amicus brief.
Back in the district court for the second round, the district court again found every aspect of the District’s registration requirements constitutional, paying lip service to intermediate scrutiny and deciding that each registration requirement fulfilled the District’s interest in protecting police officers and protecting public safety.
On appeal for the second time to the Court of Appeals (Heller III), on September 9, 2014, we filed yet another amicus brief. We attacked the Court of Appeals’ first decision, again arguing that intermediate scrutiny cannot be used to permit the infringement of Second Amendment rights just because a court believes the government has good reasons for doing so.
This time in the Court of Appeals, Judge Kavanaugh (the judge who dissented before) was inexplicably absent from the panel, while Judges Henderson and Ginsburg (the judges who previously upheld the DC laws) were on the panel. Judge Kavanaugh was replaced by Judge Millett — an Obama appointee.
This time around, the Court of Appeals reviewed the district court’s application of intermediate scrutiny to the individual registration requirements. Since intermediate scrutiny is little more than an excuse for judges to apply their own values and standards, some of the requirements were struck down, and others upheld.
First, the Court of Appeals panel decided that registration of long guns is permissible since it, like handgun registration, is allegedly a “de minimis” burden on a person’s ability to own a gun. As to the individual registration requirements, the panel decided that the requirements of in-person appearance, fingerprinting, and photographing of the applicant were good ideas, but the requirement to bring the firearm and present it for inspection went too far. The panel decided that the requirement to re-register the firearm every three years was unnecessary, but that the fees charged in the registration process were appropriate. The panel decided that the firearm safety education requirements made sense, while the legal knowledge education requirements did not. Finally, the panel decided that the one-handgun-per-month rule would not advance public safety and struck that down as well. Judge Henderson dissented in part, arguing that she would have upheld all of the registration requirements.
Although some might see this as a partial victory for gun owners, as some of the more absurd provisions of the law were struck down, this case demonstrates the problems inherent in litigating cases by urging the court to use strict scrutiny, intermediate scrutiny, or any other balancing test. Employing such litigation strategies invariably results in Second Amendment rights being narrowly defined by gun-ignorant and gun-hostile judges. Inviting judges to disregard the text of the Second Amendment by using the very “judge empowering interest balancing” tests that Heller I rejected causes such challenges to hinge not on what the Founders wrote, but on how the judges “feel” — applying or disregarding the Constitution as it may strike their fancy. Truly we are a nation ruled by judges, not by law.