Biased Courts? A Look at the Second Amendment Legal Battle Known as ‘Heller II’

Burning_ConstitutionFollowing the Supreme Court’s Landmark ruling in District of Columbia v. Heller, D.C. enacted several new gun control laws that prohibited the possession of so-called “assault weapons”, prohibited possession of magazines capable of holding more than 10 rounds of ammunition, created handgun rationing, generally required the registration of all firearms, and required that registrations be renewed every three years.  Shortly after the earliest of these new laws were enacted, Dick Anthony Heller and several other plaintiffs filed a new lawsuit challenging the provisions in the NRA supported case Heller v. District of Columbia, commonly referred to as Heller II.

All of the challenged laws were initially upheld by the United States District Court for the District of Columbia.  That decision was appealed to the United States Court of Appeals for the District of Columbia Circuit.  The circuit court’sopinion upheld the lower court’s decision on “assault weapons”, magazines, and the handgun registration requirement, but remanded for more fact-finding on the claims relating to the registration requirement for long guns, handgun rationing, the burdensome registration procedures, and the requirement to reregister firearms every three years.  Yesterday, Judge James E. Boasberg of the United States District Court for the District of Columbia issued an opinion addressing the claims remanded by the circuit court.

Judge Boasberg’s recitation of D.C. murder statistics from the 1990’s and his claim that “[t]he District of Columbia knows gun violence” in the opening lines of the opinion made it clear from the outset that the plaintiffs’ legal arguments were going to be drowned out by the dubious mantra that any type of gun control is bound to promote public safety.  The irony of quoting statistics of high crime rates that existed before D.C. was forced to repeal its ban on all handguns apparently was lost on Judge Boasberg, as was the fact crime in D.C. has continued to decline after D.C. residents’ right to possess handguns was restored in 2008.

After this ominous introduction, Judge Boasberg determined that the appropriate level of constitutional scrutiny was “intermediate scrutiny”, which requires that the District can show that the challenged laws are “substantially related to an important governmental objective” and that the law is narrowly tailored to achieve that objective.  This might seem like it would require some real justification from the District for passing the laws.  Nevertheless, the court quickly dispelled that notion by finding that mere opinion evidence of the District’s “experts” (whether or not backed by empirical data) could fulfill the requirement the challenged laws be “substantially related” to the District’s important interests in public safety, and that the court would not strike down the laws as long as the District’s predictions about the effect of the laws were “reasonable.”

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