Heller Versus D.C. Before The Circuit Court Of Appeals (Assault Weapons Ban)

BY Herschel Smith
12 years, 4 months ago

The Washington Post editorial board droned on about a recent ruling concerning the District of Columbia “assault weapons” ban.

Last week, the judges — or, more precisely, two of them — delivered a pleasant surprise. Chief Judge Douglas Ginsburg and Judge Karen LeCraft Henderson upheld the District’s ban on “assault weapons” and high-capacity magazines — defined by the District as those holding more than 10 rounds of ammunition. Also upheld were certain provisions that require gun owners to register handguns. The decision was, in our view, correct in its conclusions and methodology.

The judges, as is common with constitutional issues, asked a series of questions: Are semiautomatic weapons and high-capacity magazines in “common use” or are they the type of weapon — think, sawed-off shotguns — that the Supreme Court has said is not covered by the Second Amendment because they are “not typically possessed by law-abiding citizens for lawful purposes”? Do the regulations infringe on the fundamental right to keep and bear arms for self-defense? How does any infringement of the individual right balance against the government’s interest in protecting public safety?

Gun registration, the judges ruled, is “deeply enough rooted in our history to support the presumption” that it is constitutional. The ban on semiautomatic long guns is permissible, they concluded, because it does not prohibit possession of “the quintessential self-defense weapon” — the handgun. Those who wish to keep a long gun for hunting or self-defense may legally own a non-automatic rifle or shotgun. The judges also rightly deferred to the District’s concerns over safety in banning high-capacity ammunition clips that “pose a danger to innocent people and particularly to police officers.”

The third panel member, Judge Brett Kavanaugh, would have struck down regulations banning semi-automatic long guns and requiring gun registration, but he would have asked a lower court to conduct more fact-finding on whether a ban on high-capacity ammunition clips passed constitutional muster. The right to keep and bear arms, he argued, should not be subject to the balancing test adopted by the majority. Because semiautomatic weapons and high-capacity magazines have been in common use, he argued, they should presumptively be deemed constitutional. But “common use” in this approach spells the end of common sense and quashes the ability of diverse jurisdictions to fashion laws that address specific safety concerns. As the majority opinion shows, Second Amendment rights can be respected without thwarting legitimate public safety goals.

The editorial board is referring to the case of Dick Anthony Heller, et. al., versus D.C. before the D.C. Circuit Court of Appeals, decided October 4, 2011.  This case follows on from the Supreme Court ruling in D.C. v Heller, decided June 26, 2008.  Dick Heller and others decided to appeal a D.C. court ruling that prohibited them from owning so-called “assault weapons” in D.C. due to local ordinances.  The SCOTUS decision in Heller, they claimed, made D.C.’s ban of these weapons unconstitutional.

The phrase “assault weapons” is, of course, deplorable because of its misleading connotations (weapons with rails for attachments such as tactical lights, forend grips, a pistol grip, collapsible stock, etc., are classified as “assault weapons due to these features).  More deplorable is the complete ignorance of the subject in the MSM, especially when they decide to weigh in on the issue.  But more deplorable still is when judges make life-altering decisions based on factually incorrect information, in total isolation from any personal knowledge of the subject upon which they are supposed to adjudicate.  Such is the case with the D.C. Circuit Court of Appeals in its latest foray into the unknown.

Much of the decision is occupied with the two judges arguing for intermediate scrutiny as opposed to strict scrutiny as to whether second amendment rights are implicated by the D.C. ban.  But it doesn’t take long for the decision to become muddled.  On page 30 they state:

We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in “common use,” as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000. There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten.

Here is the perhaps the only correct set of assertions contained in the ruling, and the Washington Post has gotten it exactly backwards.  The judges didn’t base the ruling on whether assault weapons are in “common use.”  They clearly are.  But the rejection of this framework contained within Heller isn’t comprehensive or final, as we’ll see in a moment.

On page 33 of the decision, the judges begin to construct their own framework for rejection of assault weapons and exoneration of D.C.’s ban.    They turn their focus on D.C.’s “Committee on Public Safety,” the findings in their report, and whether the ban has a reasonable “fit,” tailored to the goals of public safety and reducing violent crime.  The committee relied upon An Updated Assessment of the Federal Assault Weapons Ban:Impact on Gun Markets and Gun Violence, 1994-2003.  The report does make the claim that “AWs and other guns equipped with LCMs tend to account for a higher share of guns used in murders of police and mass public shootings, though such incidents are very rare.”  But no evidence is offered to substantiate the claim (as we’ll see in a moment, there is none).

But there is sleight of hand.  By lumping police murders and mass shootings together, along with “assault weapons” and high capacity magazines (what they termed “large” capacity magazines, which I take to be rather outdated and not in colloquial usage), the authors get to make claims that are sweeping in nature while misleading in the details.  It only takes a single shot to murder anyone, including a police officer.  No one needs a high capacity magazine to pull off a murder.  But the ugly specter of “mass shootings” introduces the emotional element that the committee needs to make their case.

Then the judges return to the framework of Heller, after jettisoning it earlier, by referring to whether assault weapons are “dangerous and unusual” (see page 34).  After quoting Brian Siebel of the Brady Center as an expert witness, the judges conclude “In short, the evidence demonstrates a ban on assault weapons is likely to promote the Government’s interest in crime control in the densely populated urban area that is the District of Columbia.”  On page 35, the judges jump into bed with Siebel when they parrot his own words.

The Siebel testimony moreover supports the District’s claim that high-capacity magazines are dangerous in self-defense situations because “the tendency is for defenders to keep firing until all bullets have been expended, which poses grave risks to others in the household, passersby, and bystanders.” Moreover, the Chief of Police testified the “2 or 3 second pause” during which a criminal reloads his firearm “can be of critical benefit to law enforcement.” Overall the evidence demonstrates that large-capacity magazines tend to pose a danger to innocent people and particularly to police officers, which supports the District’s claim that a ban on such magazines is likely to promote its important governmental interests.

This is highly problematic prose, not only for the facts it claims to exist (“dangerous in self-defense situations”), but also for the light that it casts on the decision process.  The judges have earlier jettisoned Heller’s framework for weapons that are unusual by observing that the AR style weapons are not at all unusual, then reintroduced Heller’s framework in their decision by arguing that these weapons are “unusual and dangerous,” changed the framework again by arguing that the basis for the decision is public (police) safety, and then modified their argument again to introduce their concern for people involved in self-defense and those around them.

The rest of the decision is just as muddled as the foregoing was, and it is appropriate at this point to make several observations concerning some of the alleged facts upon which the court has based its decision.

It can be argued that not only is the 5.56 mm round and the AR style weapons a legitimate home defense weapon, it is in some circumstances the optimal one to use.  The District of Columbia and the judges find themselves in the uncomfortable position of saying that it is acceptable for citizens to possess a long gun shooting the 7.62 mm round, as long as it doesn’t have a collapsible stock, forend grip, or rails for lasers or lights (after all, we wouldn’t want individuals to be precise in their self defense, or perhaps we do because of the safety of others around them).  Or, substitute here a shotgun, even shooting slugs for self defense.  Yet one feature of the 5.56 mm round shot from any AR is that brick (and in fact multiple layers of drywall) shatter the round, turning it into shrapnel due to its tendency to yaw upon impact (and even during flight).  Thus, people in adjacent homes are at least as safe with the AR as they are with any shotgun, and they may be more safe.  The same holds true for rounds fired from pistols (from 9 mm and above in caliber).  Pistol rounds penetrate more layers of drywall than 5.56 mm rounds.

As for the testimony of law enforcement officials, it’s always easy to find a police chief or sheriff who wants to rid his area of all weapons.  Concerning the recent ban on open carry in California, Los Angeles County Sheriff Lee Baca said “For law enforcement officers and community members, any type of weapon being carried, openly or concealed, could appear as a threat to their well-being and is regarded as a public safety threat.”

Note what was said.  The subject was open carry, and not only does the Sheriff not like open carry, he doesn’t approve of concealed carry either.  It is regarded as a “safety risk.”  But risk in this context is defined by him, as a policy matter, representing police officers, rather than innocent citizens looking to do nothing more than defend their person in the case of peril.

But if assault weapons aren’t really dangerous in self defense situations as the Brady Center (and the court) claims, what about this notion that they (whether long guns or high capacity magazines used for handguns) represent a danger to public safety because of the threat of mass shootings?  This is the real bogey man lurking behind the curtain after all of the other reasons are given, reasons that appear to be like so many leaky buckets slammed together, and it makes sense to assess the history of mass shootings in America.  I have provided some of the details in Mass Shootings in the U.S. (HPS).

Disclaimer and stipulations: (1) I have tried to include all known mass shootings in recent history, but the list may not be comprehensive, (2) Number of deaths excludes suicide by the shooter, (3) Some information is marked unknown, (4) the list is in no particular order, and finally, (5) I have followed no specific definition of “mass shooting,” except that no attempt has been made to capture individual murders or even double-murders.

As Robert Farago observes, there is no single, equivalent definition of high capacity magazine.

California, Hawaii, Massachusetts, New York, Oak Park, Illinois – 10 cartridge limit
Chicago, Illinois – 12
New Jersey, Aurora, Illinois; – 15
Franklin Park, Illinois – 16
Maryland – 20
Denver, Colorado: – 21
Riverdale, Illinois – 35

Thus the Violence Policy Center has used a gratuitous definition that improves their chances of making compelling literature.  The definitions are not particularly useful, however, since I have tried to provide what is publicly available.  Moreover, analysis of the data provided in Mass Shootings in the U.S. (HPS) gives some insights that call into question the usefulness of generalizations and categories.

First, there simply haven’t been that many mass shootings in the U.S.  There aren’t enough to be statistically significant, but anecdotal wisdom can nonetheless be gleaned from the data.  Second, the charge that assault weapons are somehow the weapon of choice, or are involved in increasing proportions in mass shootings, is simply false.  The data shows that handguns are involved at a rate of 4:1 compared to either shotguns or rifles of any kind.

Third, the most frequent choice for such shooters in order to achieve effectiveness seems not to rely on magazine capacity, but having multiple weapons and magazines.  Fourth, the highest number of deaths occurs in instances of handgun use, not AR or AK use.  Fifth, determined and well-prepared shooters, e.g., the Texas tower murders, can use bolt action rifles to wreak carnage without the accouterments of the “assault weapon” label.  Sixth, most shooters carried multiple magazines, and seemed to be capable of fairly rapid magazine changeout.  In fact, given the ability to perform this action quickly, it isn’t obvious that use of magazines of different capacity would have substantially changed the calculus for any of the incidents.  The Fort Hood shooter used a high capacity magazine for his FN Five-Seven, but he also performed magazine changeout.  He didn’t stop shooting until he was himself shot.  It isn’t apparent that more magazine changeouts would have changed the outcome of the incident.

While correlation isn’t causation and no conclusive judgments may be made from this data due to the limited quantity of the set, this is true in the superlative for those who would try to use it to demonstrate in the legal system that so-called assault weapons are more dangerous than any other type of weapon or are involved in more crimes.

The D.C. Circuit Court of Appeals ruling continues to amuse at it goes on.  Eventually the court parrots the words of the ATF concerning the lack of a sporting purpose for assault weapons, a cultural framework that is dated by at least twenty five years.  I pointed this out in Analysis of the ATF Study on the Importability of Certain Shotguns.  Mentioning the Saiga-12 competitions or the local 3-Gun competitions should be enough to cause the authors to go back to the drawing board and craft up-to-date language and regulations (or better yet, simply reverse the regulatory trend of micromanagement).  The ATF language is simply outmoded, incorrect and useless.

But hysteria over assault weapons causing bad judicial outcomes isn’t the only problem.  In the Southern district of New York, Judge Cathy Seibel has ruled that possession of a firearm of any kind outside of the home is a privilege rather than a right.  Continuing with this theme, Sean Masciandaro fell asleep in his car while resting from a long drive, and this happened to occur on National Park land.  He was arrested for failing to remove the ammunition from the proximity of his weapon and place it in a remote location such as the trunk of his car (as if the weapon would have been any protection for him unloaded).

The attorneys for Sean argue thusly.

Heller and McDonald left open important questions regarding the scope of the self-defense right beyond the home and the appropriate method for evaluating government regulations affecting it. The lower courts have struggled mightily with these issues. See, e.g., Masciandaro, 638 F.3d at 467 (“But a considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation.”); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (“Skoien II”) (Heller creates an individual right that includes keeping operable handguns at home for self-defense but “[w]hat other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open.”), cert. denied, 131 S. Ct. 1674 (2011).

The highest state courts that have considered the issue unanimously decided that the Second Amendment right is limited to the home. Maryland, the District of Columbia, Illinois, Massachusetts, New York, and Kansas have all limited Heller to its holding. 9 For example, the Maryland Court of Appeals upheld Maryland’s firearm permitting statute, concluding that the right is unavailable outside the home. Williams v. State, 417 Md. 479, 496 (Md. 2011) (stating that “[i]f the Supreme Court, in this [Heller] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly”), petition for cert. filed, 79 U.S.L.W. 3594 (Apr. 5, 2011). That court noted that Illinois, the District of Columbia, and California also limited the right in similar cases. Id. at 496-99. Given this trend, state courts that confront Second Amendment issues in the future will likely limit its protection to the home.

Other state and federal courts have held that even if the right might exist outside the home, it is substantially weaker than the right enjoyed in the home.

Heller was a muddled decision and at least placed language in effect that justified the micromanagement of weapons types (with the statement that the “handgun is the quintessential self-defense weapon,” it sounds as if Antonin Scalia has been watching too much television).  But if Heller was muddled, the D.C. Circuit Court of Appeals (and other courts throughout the nation) have made the problem an order of magnitude larger, with incoherent arguments, factually incorrect statements, lack of personal knowledge of firearms, and reliance on “experts” who are known to be duplicitous and ignorant of the subject.  We can forgive editorial boards.  After all, they wax eloquent in ignorance all the time on all kinds of things.  Courts cannot be forgiven.

According to the D.C. Circuit Court of Appeals, the D.C. assault weapons ban is based on something other than those weapons being unusual since there are hundreds of thousands of them in circulation.  But not really, because they are unusual and dangerous weapons, and the real concern has to do with the safety of police officers, until the public is mentioned, because their protection is paramount.  And if all of that doesn’t work, the big bad bogeyman of “mass shootings” should be enough to convince the reader that they should be banned.  It’s just a horrible decision that wouldn’t make the grade in any college writing class.

And worse?  The Supreme Court bought all of that and refused to hear Heller’s appeal.  The Supreme Court has one more chance to get it right this term with the case of Sean Masciandaro.  If they don’t, Heller will be nothing more than a right to possess a weapon inside the home, and the second amendment will have been eviscerated.

UPDATE: I appreciate the links give to this article by Say Uncle and David Hardy at Of Arms & the Law.

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  1. On October 15, 2011 at 10:10 pm, scott s. said:

    I see Wash Post misstates the holdings in Miller, but that’s no surprise. Note that in Hawaii, the ban on large cap magazines covers magazines capable of being used in handguns.

  2. On October 17, 2011 at 8:29 pm, MrSatyre said:

    I just LOVE the erroneous and utterly stupefying supposition that by denying me the right to own a firearm also owned and used by criminals (do criminals really use still sawed-off shotguns these days???), that will somehow prevent gun violence.

  3. On October 17, 2011 at 9:06 pm, Herschel Smith said:

    I suppose what they figure is if they can make all weapons illegal, they can run the manufacturers out of business. But that wouldn’t do it either. Only the criminals would have weapons.

  4. On October 18, 2011 at 3:13 am, Gene Hoffman said:

    There is one error above. No appeal has yet been requested so it’s incorrect that the Supreme Court has not granted review of this yet. It hasn’t yet been asked.


  5. On October 18, 2011 at 5:32 am, Herschel Smith said:

    It’s currently before the Supreme Court. It has indeed been appealed. The solicitor general had until monday to respond to the writ. The SCOTUS is due to decide now whether they will take the case. I will contact Sean’s attorney (with whom I have talked) and find out if there are any changes.

  6. On October 18, 2011 at 9:32 am, ed said:

    Herschel – I think Gene was referring to the Heller 2 case and not Masciandaro.

    Ed B

  7. On October 18, 2011 at 5:00 pm, Herschel Smith said:

    If so, then Gene, I mistook your comment. However, the Supreme Court has rejected hearing Heller’s appeal. It will never be heard before the SCOTUS. That’s a done deal. It’s the end of the road for Heller, et. al.

  8. On October 19, 2011 at 2:32 am, Gene Hoffman said:

    Heller II was indeed the case I was referring to. The mandate hasn’t issued and Halbrook hasn’t filed an appeal yet. There are 4 things that can happen now. Halbrook and Dick and Dane can ask for re-hearing by the panel, re-hearing en-banc by the entire DC Circuit Court of Appeals, petition for Cert, or just go back to Judge Urbina in the District Court.

    I really don’t understand why you keep saying that Heller II will never be heard by the Supremes. That’s pure speculation at this point and the decision is far from final no matter what.


  9. On October 20, 2011 at 9:00 pm, Glen said:

    The reason that the Heller II panel made “life-altering decisions based on factually incorrect information” was because no one challenged the “factually incorrect information.”

    That’s right – Stephen Halbrook and the NRA, the team who represented Dick Heller in this challenge to several of the District’s gun control regulations, didn’t present any evidence. Instead, they attempted to have those regulations declared unconstitutional solely on the basis of legal arguments.

    Unfortunately, this fact-free legal strategy is also being employed by several other organizations litigating Second Amendment cases. Both the Second Amendment Foundation and the Calguns Foundation believe that they can win their cases without offering a single piece of evidence. Unsurprisingly, to date this strategy has resulted in an unbroken string of losses before the federal trial bar.

    It does no good to write blog postings complaining about judges “ignoring the facts” when those judges never see any facts other than those presented by the government. Instead, it’s time to start holding those leading so-called gun rights organizations accountable for their decisions.

  10. On October 20, 2011 at 9:22 pm, Herschel Smith said:

    Your comment assumes two preconditions, or presuppositions, that I am not willing to stipulate.

    First, a constitutional argument should be good enough to persuade any honest judge of the rightness of a position. Substitute here the first amendment. I am under no obligation whatsoever to “prove” or otherwise demonstrate with compelling evidence that free speech does no harm to anything or anyone. I have a God given right to free speech. My rights don’t have as their basis something I should “prove” with evidence in a court of law.

    Second, with or without contrary evidence, judges who buy into shoddy arguments should be embarrassed. They should be embarrassed first of all because they didn’t see the right as deontological, and second because they accepted stupid arguments and falsified information on which to base their judgment. In my line of work if I use false information to conduct my practice I lose my license and honor. They should lose both as well. It was a juvenile and hysterical decision. About that there can be no debate.

  11. On October 21, 2011 at 5:56 pm, Glen said:

    In the real world, the federal judiciary doesn’t care about what you’re “willing to stipulate” to.

    It’s necessary to prove – with evidence – that even speech is harmless. You may believe that you have a God-given right to say anything anywhere and at anytime. But that’s never been the law in the United States. Nor has such a condition ever existed in any country at anytime in human history.

    And it’s patently insane to suggest that judges should simply ignore evidence, disregard the rule of law, and issue commands based upon their personal beliefs about what’s true or false. Why have a judiciary – or, for that matter, written laws – if everyone is to be governed by your personal wisdom? After all, isn’t that the logical endpoint of all deontological ethics? “I’m right, and to Hell with you?” That’s a fine sentiment for an absolute monarch (or a truly omnipotent deity), but it’s been a while since ordinary criminals were spontaneously dissolved into pillars of salt.

    In some ways, Judge Brett Kavanaugh’s dissent in Heller II does our cause a serious setback. It perpetuates the fantasy that the Supreme Court will someday validate the absolutist sentiment “What part of ‘shall not be infringed don’t you understand?’” That sentiment, of course, is in direct contradiction with the actual text of the Constitution. The Second Amendment does not read, “The keeping and bearing of arms shall not be infringed.”

    Like it or not, not every federal judge is an expert on firearms, nor are they social scientists. Nor should they be. The vast majority of federal and state regulations concerning armed self-defense are not outright bans or nefarious restrictions. But, to date, the only ones that have been overturned by the courts have been precisely these extreme outliers. Unless the zenith of Second Amendment jurisprudence is to be already behind us, more practical (and effective) litigation tactics must be employed.

  12. On October 21, 2011 at 10:44 pm, Herschel Smith said:

    Your response almost goes to completely indiscernible and totally confused. What I am not willing to stipulate had to do with my argument with you. And so what exactly are you talking about?

    You are totally wrong about what I have to prove to justify the rights granted in the constitution. Just because you think I have to justify it doesn’t mean that I do. Rights are deontological. I think I said that before. Read before you comment. And that word means what you apparently think it means. Go take a philosophy class before trying to use that word in context.

    You wild statements over “pillars of salt” is odd, out of place and nonsensical.

    The point is that no matter how practical a litigation tactic is, when we are faced with stolid and juvenile judges, it doesn’t matter.

    You see an immoral and wrongly decided opinion by a court and wish to blame it on the litigants. Your position is prima facie absurd. I’m not saying that the lawyers for Heller couldn’t have done better. I don’t know, I wasn’t there. Everyone can always do better than whatever they have done.

    The point was that the judges were hysterical. Their opinion clearly (a) violates the constitution, and (b) contradicts the evidence, evidence what should never have been in the opinion to begin with because this is a case bearing on the philosophical underpinnings of our society and government. If a judge doesn’t understand that, s/he should excuse himself or herself and go plant flowers rather than sit at the bench.

    I find myself once again at the point of being unwilling to stipulate the conditions you want. It’s my blog, my article, and my argument. I can stipulate or refuse to stipulate what I want.

  13. On October 27, 2011 at 1:29 am, Gray Peterson said:

    Unfortunately, this fact-free legal strategy is also being employed by several other organizations litigating Second Amendment cases. Both the Second Amendment Foundation and the Calguns Foundation believe that they can win their cases without offering a single piece of evidence. Unsurprisingly, to date this strategy has resulted in an unbroken string of losses before the federal trial bar.

    Please explain:

    Ezell v. City of Chicago lost in district court, won in court of appeal

    McDonald v. City of Chicago lost in both district & circuit, won at SCOTUS

    Parker v. District of Columbia lost in district, won in circuit, won in SCOTUS

    Sacramento County, CA won with a settlement, freeing 1.4 million people from may-issue.

    Numerous lawsuits against housing authorities settled out.

    Glen, lawsuits like this are not meant for district courts. Right now, a circuit split exists between Ezell, Heller II, and Nordyke in terms of scrutiny level. This means per Rule 10, SCOTUS review is encouraged to resolve the issue conclusively.

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You are currently reading "Heller Versus D.C. Before The Circuit Court Of Appeals (Assault Weapons Ban)", entry #7731 on The Captain's Journal.

This article is filed under the category(s) Featured,Firearms,Guns,Second Amendment and was published October 15th, 2011 by Herschel Smith.

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