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Motion to Lift the Stay in the D.C. Circuit

September 12th, 2007 by Clark Neily

The cert petition filed by the District on September 4 was odd in a number of respects, including the extent to which it focused more on the supposed merits of maintaining D.C.’s gun ban than explaining why, from a broader jurisprudential standpoint, the Supreme Court should accept this particular case.   Equally remarkable was D.C.’s attempt to reinvent the case as merely involving a handgun ban, rather than a ban on all functional firearms, which is the actual law.  Thus, D.C. Code § 7-2507.02 specifically provides that all lawfully owned firearms in the home must be kept unloaded at all times and either disassembled or bound by a trigger lock.  That’s a gun ban, every bit as much as it would be a book ban if the law said you can have a book in your home, but you have to keep it closed at all times.

Despite the fact that the text of the statute contains no exception for self-defense — and despite the fact that D.C. has a track record of prosecuting people who use unregistered pistols for self-defense — the District represented to the Supreme Court that it ”does not . . . construe this provision to prevent the use of a lawful firearm in self-defense.”  Let’s say we take that statement at face value, as well as the one where D.C. told the Supreme Court that D.C. law ”authoriz[es] private possession of shotguns and rifles.”  Surely that means functional shotguns and rifles, right?  Because otherwise, how are citizens supposeed to use their shotgun or rifle in self-defense, as D.C. now claims § 7-2507.02 permits?  Swing their unloaded shotgun or rifle like a baseball bat or throw it at their assailant?  Or maybe victims are supposed to ask their would-be robber/rapist/murderer for a “time out” while they painstakingly reassemble and then load their shotgun or rifle in order to render it an actual, functional firearm.

Assuming D.C. really means what it said to the Supreme Court — namely, that D.C. only limits the ownership of handguns, not shotguns or rifles — and assuming further that D.C. recognizes that only functional firearms can be used for for self-defense, then it stands to reason that D.C. has no further intention of trying to defend D.C. Code § 7-2507.02.   Accordingly, we filed this motion today asking the D.C. Circuit to lift the stay of its mandate and formally enjoin D.C. from enforcing the provisions of § 7-2507.02 requiring lawfully owned firearms in the home to be unloaded and either disassembled or trigger-locked at all times.  We will post D.C.’s response when it arrives.

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