Efforts to Renew the Ban Assault Weapons

assault-weapon

On March 2, 2004, with the ‘sunset’ of the ban on the horizon, assault weapon ban supporter Senator Dianne Feinstein (D-Calif.) attached a ten-year extension to the 1994 Assault Weapons Ban to the Senate’s Protection of Lawful Commerce in Arms Act. With the Feinstein amendment, the bill was voted down 8-90.

Assault Weapons Ban and Law Enforcement Protection Act of 2007.

In February 2007 a bill, H.R. 1022, called the Assault Weapons Ban and Law Enforcement Protection Act of 2007 sponsored by Representative Carolyn McCarthy of New York (D) was introduced that would reinstitute and expand the ban on assault weapons. It reduces the number of requirements for a firearm to be classified as an assault weapon from two to one. It additionally includes, in H.R. 1022 Section L, the expansion of the legal term assault weapon to any:

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District of Columbia v. Heller

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‘District of Columbia v. Heller’, 554 U.S. 570 (2008), was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual’s right to possess a firearm for private use within the home in federal enclaves. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states, which was addressed later by McDonald v. Chicago. It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms for self defense.

On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia. The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are “arms” for the purposes of the Second Amendment, found that the District of Columbia’s regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” “Prior to this decision the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975.”

Lower Court Background

In 2002, Robert A. Levy, a Senior Fellow at the Cato Institute, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he himself had never owned a gun, as a Constitutional scholar he had an academic interest in the subject and wanted to model his campaign after the legal strategies of Thurgood Marshall, who had successfully led the challenges that overturned school segregation. They aimed for a group that would be diverse in terms of gender, race, economic background, and age, and selected six plaintiffs from their mid-20s to early 60s, three men and three women, four white and two black:

  • Shelly Parker – a software designer and former nurse who had been active in trying to rid her neighborhood of drugs. Parker is a single woman whose life had been threatened on numerous occasions by drug dealers who have sometimes tried to break into her house.
  • Tom G. Palmer – a colleague of Robert A. Levy at the Cato Institute and the only plaintiff that Levy knew before the case began. Palmer, who is gay, defended himself with a 9mm handgun in 1982. While walking with a friend in San Jose, California, he was accosted by a gang of about 20 young men who used profane language regarding his sexual orientation and threatened his life. When he produced his gun, the men fled. Palmer believes that the handgun saved his life.
  • Gillian St. Lawrence – a mortgage broker who lives in the Georgetown section of D.C. and who owns several legally registered long guns which she uses for recreation in nearby Chantilly, Virginia. It had taken St. Lawrence two years to complete the registration process. She wanted to be able to use these guns to defend herself in her home and to be able to register a handgun.
  • Tracey Ambeau (now Tracey Hanson) – an employee of the U.S. Department of Agriculture. Originally from St. Gabriel, Louisiana, she lives in the Adams Morgan neighborhood of D.C. with her husband, Andrew Hanson, who is from Waterloo, Iowa. They live in a high-crime neighborhood near Union Station in D. C. She grew up around guns and wanted one to defend her home.
  • George Lyon – a communications lawyer who had previously contacted the National Rifle Association about filing a lawsuit to challenge the D.C. gun laws. Lyon held D.C. licenses for a shotgun and a rifle, but wanted to have a handgun in his home.
  • Dick Heller – a licensed special police officer for the District of Columbia. For his job, Heller carried a gun in federal office buildings, but was not allowed to have one in his home. Heller had lived in southeast D.C. near the Kentucky Courts public housing complex since 1970 and had seen the neighborhood “transformed from a child-friendly welfare complex to a drug haven”. Heller had also approached the National Rifle Association about a lawsuit to overturn the D.C. gun ban, but the NRA declined.

Previous federal case law pertaining to the question of an individual’s right to bear arms included United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) which supported the right and Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) which opposed the right. The Supreme Court ruling in United States v. Miller, 307 U.S. 174 (1939) was interpreted to support both sides of the issue.

District Court

In February 2003, the six residents of Washington, D.C. filed a lawsuit in the District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law (part of the District of Columbia Code) enacted pursuant to District of Columbia home rule. This law restricted residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” The District Court dismissed the lawsuit.

Court of Appeals

On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2-1 decision. The Court of Appeals struck down provisions of the Firearms Control Regulations Act as unconstitutional. Judges Karen L. Henderson, Thomas B. Griffith and Laurence H. Silberman formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court’s opinion and Circuit Judge Henderson dissenting.

The court’s opinion first addressed whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that of the six plaintiffs, only Heller — who applied for a handgun permit but was denied — had standing.

The court then held that the Second Amendment “protects an individual right to keep and bear arms”, saying that the right was “premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).” They also noted that though the right to bear arms also helped preserve the citizen militia, “the activities [the Amendment] protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” The court determined that handguns are “Arms” and concluded that thus they may not be banned by the District of Columbia; however, they said that Second Amendment rights are subject to reasonable restrictions.

The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:

‘Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.’

Henderson’s dissent

In her dissent, Circuit Judge Henderson stated that Second Amendment rights did not extend to residents of Washington D.C., writing:

‘To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v. Miller, 307 U.S. at 178, the Second Amendment’s declaration and guarantee that “the right of the people to keep and bear Arms, shall not be infringed” relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.’

Petition for rehearing

In April 2007, the District and Mayor Adrian Fenty petitioned for rehearing en banc, arguing that the ruling creates inter- and intra-jurisdictional conflict. On May 8, the Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.

 

Assault weapons bans in other states

Assault Weapons

In addition to New York (see above), Massachusetts and New Jersey, have enacted similar bans. Cook County of Illinois has also enacted a similar, but more restrictive ban. California enacted one of the first bans on semi-automatic rifles in 1989, adding stricter measures to the law several times since. Connecticut has enacted a partial ban.

Lack of Effect on crime

It was also noted that should it be renewed, the ban’s effects on gun violence would likely be small at best and perhaps too small for reliable measurement due to assault weapons rarely being used in gun crimes even before the ban. It should also be noted that the United States Department of Justice has not clarified as to whether or not the “assault weapons” used in violent crime were semi-automatic or automatic weapons, and what percentage of semi-automatic (“assault weapons” under legal definition) were used in violent crimes.

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A Sickening Example of Gun Control in Action

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Ian Thomson moved to a rural homestead in Southwestern Ontario to lead a quiet life investing in a little fixer-upper. Then his neighbour’s chickens began showing up on his property. He warned his neighbour, then killed one of the birds.

The incident began six years of trouble for Mr. Thomson that culminated early one Sunday morning last August when the 53-year-old former mobile-crane operator woke up to the sound of three masked men firebombing his Port Colborne, Ont., home.

“I was horrified,” he said. “I couldn’t believe it. I didn’t know what was happening. I had no idea what was going on.”

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