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Clearing the Air

July 18th, 2008 by Alan Gura

There’s been some confusion about how the Supreme Court’s decision is to be implemented, and what it means for DC’s registration system, going forward.  We’d like to clear the air. 

The handgun that Mr. Heller tried to register in 2002, the registration of which was ordered by the courts, is a nine-shot revolver.  It is fully registerable under D.C. law as it stands today, and Mr. Heller will have it registered to him.  We are not expecting the city to resist the registration of this firearm.  Once the gun is registered to Mr. Heller, he can use it to defend his home. 

There are significant, practical limits on the number of arguments that can be put together in one lawsuit.  In our case, we chose to focus on the handgun and functional firearms bans – and that was plenty work for the courts to consider.   Litigants do not have unlimited space in the briefing, or unlimited time in argument, and there is a significant strategic advantage – as we have demonstrated – in keeping constitutional litigation focused and narrow. 

That does not mean that the rest of the D.C. Code with respect to firearms is constitutional.  Much of it is not.  But the entire code was not directly at issue in our case.  It is our hope that Mayor Fenty and the City Council, or Congress, if the Mayor and City Council are unwilling to do so, sit down with their code books and the Supreme Court’s opinion, and make a serious effort to conform the former to the latter.   If the political branches do not make the city’s firearm laws constitutional, then as we’ve seen, the courts will do it for them.  

However, the judgment in this case relates only to the provisions that were struck down, and the city appears to be complying with the literal command of the judgment.  Again, we do not believe that everything the city is doing is constitutional.  Some of the city’s registration practices are clearly unconstitutional, as is the semi-auto ban.  But these are not issues that can be resolved in the context of the current case. 

The Supreme Court’s decision is a smashing victory for liberty, and it has made immediate practical impact on the Second Amendment rights of Washington, D.C. residents.   Mr. Heller will have his handgun, lawfully, at home, and he can use it for self-defense should the need arise.  That was the object of the case, and it has succeeded.  We will continue to monitor the city’s behavior for compliance with the decision.  And we are sure that in due time, all of the city’s unconstitutional practices will be altered, one way or another.

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