2021 Dick Heller Second Amendment Lawsuit Against the District of Columbia

 

On September 8, 2021, Dick Anthony Heller, his associates and attorneys, filed a lawsuit against the District of Columbia for their infringements on Second Amendment rights by banning the individual manufacture of firearms. It has a good chance of restoring some Second Amendment rights, because the District of Columbia has been very hostile to the Second Amendment since it was given a large amount of self rule in 1976.  From the lawsuit: 

After gaining home rule from the United States Congress in 1976, the District of Columbia’s elected officials have adhered to a policy of self government for me, but no self defense for thee. Indeed, the District is notorious for its antipathy to the right to keep and bear arms guaranteed to the people of the United States by the Second Amendment to the Constitution. From the outset of home rule, the District enacted wide ranging restrictions on firearms. See D.C. Law 1-85, Firearms Control Regulations Act of 1975 (effective September 24,1976). However, successive court decisions have steadily struck down District laws which infringe the right to keep and bear arms. Today, the District, unrepentant and reckless, continues to pass laws violating the Second Amendment. Often the District’s actions rest on utterly false application of basic concepts in firearms technology and regulation well established under Federal law. If the situation continues, District law would deny the people the means to exercise their Second Amendment rights and unintentionally outlaw existing firearms lawfully in the hands of both the people and the police.

The lawsuit quickly gets to the meat of the matter. The District of Columbia bans all manufacture of firearms, and only allows the loading of ammunition for oneself, for registered firearms. From the lawsuit:

§ 72504.01. Manufacture of firearms, destructive devices or ammunition prohibited; requirement for dealer license.

(a) No person or organization shall manufacture any firearm, destructive device or parts thereof, or ammunition, within the District; provided, that persons holding registration certificates may engage in hand loading, reloading, or custom loading ammunition for his registered firearms; provided further, that such person may not hand load, reload, or custom load ammunition for others.

The District of Columbia has completely banned the manufacture of guns or gun parts in the area under its control. The ban is total. According to the District of Columbia law, no one can legally make any firearm, or any part of a firearm, within the District of Columbia. It appears to be illegal to make a set of stocks for your existing pistol; to make a replacement sight; perhaps to even make a sling from a pair of shoelaces. All of these things are easily done with the simplest of tools. All have been legal to do in the history of the Republic since colonial days. From the lawsuit:

The District, knowing full well where the battle lines lay, recently supplemented its ban on making a gun, by prohibiting even the import and possession of parts necessary for the manufacture of a firearm by outlawing what it pejoratively calls “Ghost Guns". Never missing an opportunity for erroneously defining firearms terminology, District legislation in question is so poorly thought out and written that the City Council has managed to criminalize the possession of a vast array of popular, common handguns that it regularly allows residents to register, including the very handgun it issues to its police officers. Accordingly, this socalled “Ghost Gun” prohibition is hopelessly flawed and must be found invalid under the Second and Fifth Amendments. 

The lawsuit lays out convincing and incontrovertible evidence the making of guns by single individuals was common in the early republic. Bans on the making of guns have been unknown. Thus, the District ban on making guns is a significant infringement on the Right to Keep and Bear arms, which is not a "long standing" limitation. 

The lawsuit convincingly takes apart the District of Columbia's silly objections to the manufacture of firearms, one by one.

The District of Columbia offers bizarre interpretations of its law. They are not convincing. From the plaintiffs response 

a. DC Code § 72504.01 does not allow Mr. Heller to manufacture a fire arm violation of the Second Amendment.

DC commences its defense of DC Code § 72504.01(a), the manufacturing ban, by claiming the statute does not apply to Mr. Heller’s self manufacture of a firearm. According to the District, that law only applies to commercial manufacture of a firearm. Doc. 8 at 15. DC argues the term manufacture is inherently commercial. Id. It cites two dictionary definitions of the word it claims imply the commercial nature of the word with specific emphasis on the words “wares” and “labor” as contained in thosethe context of the prohibition connotes commercial activity. Id. at 16.   

DC’s argument is unavailing. DC is correct that the starting point for examining the meaning of the statute is its text. Id. at 15, citing City of Clarksville v. FERC, 888 F.3d 477, 482 (D.C. Cir. 2018). Reference to the full text of DC Code § 72504.01(a) shows an intent to prohibit all manufacturing of guns, not just commercial manufacture. The statute reads: 

No person or organization shall manufacture any firearm, destructive device or parts thereof, or ammunition, within the District provided, that persons holding registration certificates may engage in hand loading, reloading, or custom loading ammunition for his registered firearms; provided further, that such person may not hand load, reload, or custom load ammunition for others.

After several more well argued blows to the District of Columbia's attempt to justify its ban, the Heller brief sums up thusly: 

 V. Conclusion. 

Plaintiffs have met the requirements for grant of a preliminary injunction. They have shown the likelihood of success on the merits, that they suffer irreparable injury, that the balance of harms favors an injunction and that an injunction is in the public interest. Plaintiff’s request the court to enter the requested preliminary injunction.

This latest brief was filed on November 18, 2021. It seems likely this lawsuit will establish that Second Amendment rights include the right to make weapons, including guns, at least those which are "in common use". 

It is a fairly clear case. The ban is absolute. The Second Amendment does not allow an absolute ban. The first step is to establish an absolute ban is not allowed in a court decision. Then, various infringements can be challenged and removed.

It appears to this correspondent the requirement for a serial number is very recent, and infringes on Second Amendment rights.

Dick Heller, his associates and attorneys chose not to address the issue in this lawsuit. It is a tactical decision. Courts have shown themselves to be willing to restore Second Amendment rights incrementally rather than all at once.

The arguments put forward by the District of Columbia are the usual sort seen in these debates: The government needs this power, because: safety. They do not show any proof of the safety claim. It is possible this case will become another landmark case in incrementally restoring full Second Amendment rights. 

Even though the courts are unwilling to restore Second Amendment rights all at once, at least some courts seem willing to do so cautiously and incrementally, little by little. This is the path which was followed in the protection of First Amendment rights, as they were incorporated under the Fourteenth Amendment after 1920. 

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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