Give 'em Heller (ver 2.0)!

[Al Norris]

(OK, so the title isn't all that original - sue me!)

FoxNews has the story.

The Washinton Post reports the most:

The man who successfully challenged the D.C. handgun ban before the Supreme Court filed a new federal lawsuit this morning, alleging that the District's new gun-registration system is unreasonably burdensome and improperly outlaws most semiautomatic pistols.
...
The new lawsuit said that defining a semiautomatic pistol as a machine gun "is contrary to the ordinary usage of those terms in the English language and in the laws of the United States."

"As a result of the District's extraordinary definition," the complaint says, "ordinary handguns and other firearms which are semiautomatic are considered to be 'machine guns' and may not be registered. The overwhelming majority of handguns possessed in the United States are semiautomatic handguns, and the Supreme Court . . . held that handguns as a class are constitutionally protected."
...
The city also requires that legally registered revolvers be kept unloaded and either disassembled or fitted with trigger locks, unless the owner reasonably fears he is in danger of being harmed by an intruder in his home.

That rule flouts the Supreme Court decision, making it virtually impossible for a gun owner to legally use a weapon in self-defense if surprised by an assailant, said Heller's attorney, Stephen P. Halbrook.

"Under the D.C. [law], a robber has to make an appointment with you so you can get your gun ready for him," Halbrook said in an interview.

From the Washington Times, we learn that Mr. Halbrook is working for the NRA, who is bankrolling this new case.

Reason Magazine has a small blurb about it on one of their blogs, but includes this bit of information:

Dick Heller, et al., filed a complaint (For Declaratory Judgment, Injunctive Relief, and Writ of Mandamus) against the city today to force them to comply with the US Supreme Court ruling in the District of Columbia v. Heller and to protect our individual rights such as the right to defend ourselves in our own homes.

Writ of Mandamus? Geez, I haven't heard of that one since I researched Marbury v. Madison several years ago. I know that it is not often used today, but it is still a powerful tool for the Courts.

For those that don't know, the original lawsuit was named Parker v. D.C. and was won at the D.C. Circuit level in early 2007. D.C. appealed to the SCOTUS, where the name of the case became D.C. v. Heller (because Dick Heller was the sole survivor of standing at the Circuit level). The new lawsuit is named Heller, et al v. D.C., or simply Heller v. D.C.

Um, this is version 2.0 folks. While Alan Gura is heading his attack on Chicago, the NRA is at the forefront here.

The filing is here. I suspect that the court will hear the initial case within 90 days (+/- a few days), a week to decide and 30 or so days to implement... If the case goes for Heller.

 

[mwm1331]

I really hope hes got both stamina and support because hes going to be invloved in challenges against DC for years, if not decades. Regardsless of what the Supreme Court decides the DC gov will not repeal thier ban if they can prevent it.

 

[hammer4nc]

Willful disregard of the SC decision?

I'm curious what form the enforcement action might take.

The Fenty gangsters have willfully subverted the intent of the first SC ruling. In this suit, if the SC simply redlined those provisions of the DC code that were deemed to be in violation, and sent it back, Fenty and the council could come up with 10 more different, but equally onerous code provisions, and what then? Round three?

The issue is intent. DC clearly wants to preserve the gun ban; cloaked in arcane provisions that would take months to navigate. Cost alone, is still an open-ended question. This will effectively deter 98% of applicants.

If just one determined (and now well funded legally) applicant, like Mr. Heller makes it through the minefield, is that alone prima facie evidence that the ban has ended, and DC is in compliance?

Repeating the question, what form will enforcement take?

Like school integration, will marshals be assigned to oversee compliance? Will the SC actually rewrite the statutes and hand them down? Punitive sanctions on Fenty/Nickles/Lanier, for contempt of court? These strong actions are arguably appropriate, in light of the wanton disregard shown by DC leadership.

However, given the razor-thin 5-4 nature of the original ruling, I suspect the SC might just wimp out, and the result will be another round of bureaucratic foot-dragging that will accomplish little in terms self-defense for the residents of DC; the core issue of this case.

We'll see.

 

[Al Norris]

hammer4nc, the SCOTUS decision was not as "razor thin" as many make it out to be. The 5-4 decision was only to the extent of the scope of the right. The decision as to whether it is a personal right was 9-0. This will not be so easily overturned by a later Court.

DC needs to be slapped down. On that, I think we can all agree. This suit is a direct challenge to DC's thumbing their collective noses at the Supreme Court.

If you remember, Dick Heller initially tried to get his Colt 1911 registered and was denied. That gave him standing to sue against the DC Codes that made any semi-auto handgun a machine gun. As was the matter of Absalom Jordan, who attempted to register his .22 target semi-auto. So we now have two extremes in the calibers of guns that were attempted to register and denied.

Both Heller and Jordan, along with Amy LcVey did register their revolvers, which now gives all three the standing to sue the remaining portions of the code, as being arbitrary and capricious, and therefore in violation of the Supreme Courts decision.

There are four parts to the complaint. The following is mostly taken from the filing.

1. By defining “machine gun” to include semiautomatic firearms and applying that term to semiautomatic pistols which do not shoot more than 12 shots without manual reloading, and prohibiting the registration of such pistols, D.C. Code §§ 7-2501.01(10) and 7-2502.02(a)(2) facially and as applied infringe on the right of the people, including plaintiffs, to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution.

2. The Act amended D.C. Code § 7-2502.03 to add: “(d) The Chief shall require any registered pistol to be submitted for a ballistics identification procedure and shall establish a fee for such procedure.” No limit is placed upon the amount of the fee which makes D.C. Code § 7-2502.03(d) arbitrary and unconstitutional.

3. The Act amended D.C. Code § 7-2507.02 to require that “Each registrant shall keep any firearm in his or her possession unloaded and either disassembled or secured by a trigger lock, gun safe, or similar device....” By exempting the Police and business owners from keeping their handguns in the same condition as citizens in their homes, the provision explicitly acknowledges the need to keep a firearm in a ready condition. By placing this restriction upon citizens in their homes, it is an infringement of the right.

4. Citing D.C. Code § 1-303.43, the complaint seeks to nullify the statutes (D.C. Code §§ 7-2501.01(10), 7-2502.02(a)(2), D.C. Code § 7-2502.03(d), and D.C. Code § 7-2507.02(3)) as being unusual and unreasonable, as applied, to individuals seeking registration.

Heller is asking for a declaratory judgment of the foregoing, preliminary and permanent injunctions against the City from enforcing the disputed codes and a writ of mandamus, forcing the City to comply with the declaratory judgment.

The District Court will not go against the Circuit Court ruling, which was upheld by the Supreme Court... Not if that Judge wishes to further his/her career! In any case, should it be appealed to the Circuit Court, we already know how they will rule. I don't believe the Supreme Court will take this case, should it go that far.

As it stands, the City is due to meet and possibly amend this "emergency procedure" in September. They could moot the case, if they remove the offending restrictions. Otherwise, I do believe the Court will "slap them silly."

 

[brickeyee]

When they start asking for damages DC will have second thoughts.

 

[Brett Bellmore]

hammer4nc, the SCOTUS decision was not as "razor thin" as many make it out to be. The 5-4 decision was only to the extent of the scope of the right. The decision as to whether it is a personal right was 9-0. This will not be so easily overturned by a later Court.

The minority didn't disagree with the majority on some minor point. They disagreed over whether even the harshest gun control law in the entire country would be viewed as violating the 2nd amendment. There were four votes to render the amendment moot. That they felt it necessary to call it an individual right in the process of attempting to render it moot was a victory of sorts, I suppose, but if they'd had one more vote, the 2nd would still have, for all practical purposes, been razor bladed out of the Bill of Rights.

We should be thankful the oldest 'Justices' are in the minority. We stand a good chance of making it through the Obama administration with the majority intact. But razor thin? You bet!

 

[MyGunsJammed]

wow....i hope mr heller wins for us......

when will nyc get some love?

 

[Tennessee Gentleman]

Al,
I am curious and would ask some of our lawyer friends on here what all this would mean practically.

I looked up a Writ of Mandamus but what I read said the courts don't do them anymore.
How could this play out step by step? Could we see the court hold Fenty in comtempt and issue a warrant for his arrest?

I think DC is comical with this implementation and I look forard to watching them squirm.

It is important though because you know Chicago and San Francisco are taking notes as their day is coming.

 

[USAFNoDak]

It is important though because you know Chicago and San Francisco are taking notes as their day is coming.

Morton Grove, IL just repealed their handgun ban. Seems they didn't have the wherewithall to fight a law suit. Godfather, er, I mean Mayor Daley bragged that he and his Chicago mobsters, er, I mean his city council will fight on against the USSC. Remember, this isn't just a battle between a city and a gun rights organization anymore. The USSC is a player in the battle now.

I'd like nothing better than to see the three stooges, Fenty, Daley and Newsome, get slapped up, have a saw run across their scalps, have their eyes poked, have their noses pryed up with a claw hammer, etc. Wooob wooob woooob. Nyuk Nyuk Nyuk. Hey Moe! Hey Larry! Spread out you imbeciles.

 

[Al Norris]

OK, the case has been assigned docket number 08-1289, before District Judge Ricardo M. Urbina (a Clinton appointee, whatever that's worth).

The minority didn't disagree with the majority on some minor point.

Never implied or said it was a minor point. The scope of the right is not a minor point.

They disagreed over whether even the harshest gun control law in the entire country would be viewed as violating the 2nd amendment.

True, as far as it goes. But I am still of the opinion that Ginsburg is not as solidly in the same camp as Breyer, Souter and Stevens.

I looked up a Writ of Mandamus but what I read said the courts don't do them anymore.

... But not that they can't. From this site:

A mandamus action can be a relatively simple and quick remedy in situations where the government has failed to act when it has a duty to do so. Many practitioners have successfully used mandamus to compel adjudication of naturalization applications, visa petitions and applications for adjustment of status. In other cases, however, courts have been reluctant to compel agency action and the government has increasingly opposed plaintiffs' claims.

So while this case falls into the "other" category, it is not without foundation in asking for the mandamus. Whether or not they get the writ, is another thing.

The one thing that bothers me, is the status of actual standing to sue for Count One of the claim. Nowhere have I read of the actual circumstances when Heller was "refused" to register his Colt 1911. I wouldn't think Mr. Halbrook would make a mistake here (given what happened in Seegars and Parker), but you never know. I suspect we will have to wait for the supporting documents to be made public.

As for the rest of your questions, I'll let some of our attorneys answer. I'm not one, so it would only be speculation.

 

[Bruxley]

I may be over speculating, but as opposed as we are to DC actions and to gun control in general, it wouldn't be wise to count these people as abject fools.

DC seemed to write new legislation that was tailor made for challenge. Then they refused Mr. Heller himself. They may be looking to have established as reasonable something far less then what the challenge addresses. Perhaps establishing 'in the home only' as reasonable and/or mag capacity limits. Kind of starting the negotiations much higher then you expect to receive while actually hoping to get something less without objection. Could they have overplayed the requirements in the home just trying to get them restricted to your home only found reasonable as precedent? Could they be overplaying the autoloader is a machine gun thing just to get mag capacity limits found reasonable as precident?

When I observe adversaries doing something overtly very foolish and not doing anything to hide it, that there is a trap being set.

 

[gc70]

Antipitas
The decision as to whether it is a personal right was 9-0. This will not be so easily overturned by a later Court.

The four dissenting members of the Court skirted the issue and never precisely said that the Second Amendment contained an individual right to arms, but only a right that "can be enforced by individuals."

Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by JUSTICE STEVENS—namely, that the Second Amendment protects militia-related, not self-defense-related, interests.

Given that framework, the only individual right recognized in the Second Amendment by the dissenters would be the right to be a member of the militia (if qualified). That's as close to the "collective right" argument as it gets.

Bruxley
When I observe adversaries doing something overtly very foolish and not doing anything to hide it, that there is a trap being set.

Fenty & Co. are either as wily as a chess Grand Master or as dumb as a rock.

 

[mountainclmbr]

Why can the civil servants get greater rights than citizens? I think the DC police should be held to the local law too. Otherwise they are tyrants and we all know what the founding fathers thought their just rewards should be.

 

[publius42]

Why can the civil servants get greater rights than citizens?

That's an excellent question with two elements. As Antipitas pointed out above:

By exempting the Police and business owners from keeping their handguns in the same condition as citizens in their homes, the provision explicitly acknowledges the need to keep a firearm in a ready condition.

The other element is the one you are questioning, namely, why should government employees be treated as anything other than ordinary citizens when they are off duty?

Brux & gc70, my vote in this case is "dumb as a rock." I know it's unwise to misunderestimate your opponents, but sometimes you do get lucky.

 

[USAFNoDak]

Brux & gc70, my vote in this case is "dumb as a rock." I know it's unwise to misunderestimate your opponents, but sometimes you do get lucky.

Sometimes, very emotional responses to certain events causes one to behave in ways that appear to be stupid. This is because the emotions over ride the logic in decision making. I believe we are seeing a rageful response by Fenty, et. al., to the Supreme Court decision. They can't believe that their utopian world of gun bans has been disrupted. They are acting out of disbelief and anger at having their world turned upside down, in their minds.

I'm rolling the dice on them acting out of emotion, which makes them appear stupid. I don't believe they are orchestrating some grand master chess strategy.

 

[Tennessee Gentleman]

I'm rolling the dice on them acting out of emotion, which makes them appear stupid. I don't believe they are orchestrating some grand master chess strategy.

I vote to underestimate them. They appear to me to be rather dumb. Kind of like Ray Nagin and his "team" in NO.

 

[Yellowfin]

Ordinarily I would hold that they're simply stupid BUT they're not acting alone. Every gun banning organization in the country has come to their side, so they very well may be getting coaching to get mag capacity limits legitimized. Now maybe this time if Gura will keep his darn trap shut and not validate the other side's arguments they could sack up and call a spade a spade, expose the antis agenda and be done with this nonsense once and for all. They should dispense with this nickel and dime garbage.

 

[Al Norris]

Yellowfin, Gura has nothing to do with this current suit.

 

[Socrates]

DC seemed to write new legislation that was tailor made for challenge. Then they refused Mr. Heller himself. They may be looking to have established as reasonable something far less then what the challenge addresses.

They stay in the news, and keep the issue at the forefront. They also become more and more infamous to their constituents. They currently need to establish a standard of review, and, I'm sure they hope for a 'reasonable' rather then 'strict scrutiny' standard. Fighting it in D.C. with the conservative appellate court, 11 conservatives, 4 demokats, makes little sense, unless of course you want to go out in a ball of flame, and infamy.

I'm sure the Brady bunch are saying we won't go down without a fight...

 

[gc70]

Fenty & Co. are either as wily as a chess Grand Master or as dumb as a rock.

I vote to underestimate them. They appear to me to be rather dumb. Kind of like Ray Nagin and his "team" in NO.

I believe we are seeing a rageful response by Fenty, et. al., to the Supreme Court decision.

I don't really think Fenty & Co. are as dumb as a rock, nor do I think their response is emotional. Their actions may seem odd to us, but that may be because they may not even really care about gun control. They are politicians and their actions to date have played directly to the majority of their constituents. The ultimate fate of DC's gun control laws is probably not nearly as important to them as making their constituents happy enough with their actions to get re-elected.