Posted on 03/28/2010 6:30:57 AM PDT by marktwain
A federal judge in Washington, applying the Supreme Court’s 2008 decision creating a constitutional right to have a gun, ruled on Friday that three new gun control restrictions in the Nation’s capital city survive a Second Amendment challenge. In the ruling by U.S. District Judge Ricardo M. Urbina, the District of Columbia government’s laws requiring that guns be registered and banning assault weapons and large-capacity bullet-feeding devices are valid. The case is Heller, et al., v. District of Columbia (District Court docket 08-1289); the opinion can be found here. (The lead individual in the case, government security guard Dick Anthony Heller, is the same District resident who won the Supreme Court case with the same title in 2008.)
Such gun control laws, the judge ruled, are to be subjected to constitutional analysis using an “intermediate” level of review — that is, a challenged law will be upheld if it is “substantially related to an important governmental interest.” Courts around the country have differed on what level of review should apply to gun regulation, and that issue thus is a likely one for future Supreme Court analysis. The Justices did not lay down a standard in 2008, other than to say it would take more than simple “reasonable” justification to satisfy the Second Amendment.
The Supreme Court two years ago struck down a District government ban on handguns and a separate requirement that guns in the home be kept locked or disassembled. In doing so, the Court for the first time read the Second Amendment as protecting an individual’s personal right to have a gun for private use, at least for immediate self-defense in the home. The Court indicated at the time, however, that some forms of gun regulation — not spelled out in full — might still be valid under that Amendment. The District government followed up the ruling with City Council adoption of new restrictions that officials thought the Heller decision would allow. On Friday, Judge Urbina agreed.
In deciding how to weigh challenges in the new District laws, the judge noted that the Supreme Court had not placed gun rights in the category that gets the greatest constitutional protection — that is, rights that are deemed to be “fundamental.” The judge remarked: “If the Supreme Court had wanted to declare the Second Amendment a fundamental right, it would have done so explicitly.” Moreover, he added, declaring gun rights to be fundamental could not be squared with the Supreme Court’s remarks that some forms of regulation would remain valid.
Following are the three District laws, described in summary, and Judge Urbina’s rulings on them:
First, gun registration.
The new District law requires that all guns be registered. The person seeking to do so must submit fingerprints and two photographs, show knowledge of local gun laws, have visual capacity sufficient to get a vehicle driver’s license, prove completion of a gun-use or safety course, show how the gun will be used and where it will be kept, and notify District police if the gun is stolen, transferred, sold, lost or destroyed. For pistols, each weapon must be submitted for a ballistic ID test, for which a fee is attached, and no more than one pistol a month may be registered. Registration lasts for three years, but can be renewed.
The judge said that these regulations do implicate the Second Amendment right to defend one’s self in the home, but that they are justified as ways for local officials to monitor gun use, track guns used in crimes, and allow prosecution for failing to register. Those goals of public safety, the opinion said, will be served by the registration obligations. “Public safety is a quintessential matter of public regulation,” Urbina wrote.
Second, assault weapon ban.
The new law provides a list of what it considers to be assault weapons, including pistols, rifles and shotguns, or guns that have military-style features such as use of a magazine that can be detached.
The judge concluded that these weapons are not in common use, are not possessed by law-abiding citizens as a general rule, and are dangerous. Thus, the judge ruled, they are outside the Second Amendment’s protection. Thus, Urbina said, there was no need to weigh their constitutionality. If intermediate scrutiny were applied, however, the judge said the ban would satisfy that standard because the ban is keyed to public safety.
Third, large capacity magazines ban.
The new law flatly bans a magazine, belt, drum, feed strip, or similar device that can accept more than 10 bullets.
Just as with the assault weapon ban, Judge Urbina ruled that these restrictions are outside the scope of the Second Amendment but, in any event, would satisfy intermediate scrutiny for public safety reasons
Judge Urbina went on to reject one added challenge to the new local laws: a claim that, because the restrictions go further than those that have been upheld elsewhere, they go beyond the powers of the District’s local government.
Technically, the judge decided the challenge by ruling on competing motions for a ruling without a full trial — that is, summary judgment — because the facts were not in dispute. Joining Dick Anthony Heller in the challenge were three other District residents, Absalom Jordan, William Carter and Mark Snyder.
The challengers have the option of appealing the ruling to the D.C. Circuit Court and eventually to the Supreme Court. One or both of those maneuvers seems likely, given the breadth of the new restrictions and the fervor of the challengers.
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These laws and the politicians who enact them must go.
According to the 2 Amendment:’,the right of people to keep and bear Arms, shall NOT be infringed.’ I should be able the keep a fully loaded tank.
I think that the conservative justices on the court need to understand that they are they ONLY thing that can prevent a breakup of the United States, and that they need to be a bit more aggressive in their rulings. In particular, they need to REDEFINE THE COMMERCE CLAUSE to exactly what it means...which pretty much would get the feds out of just about everything unrelated to national security and running the court system. (i.e., you want Social Security, fine, have Sacramento, or Austin, set up a plan...same for EVERYTHING else)
Once our 5-4 majority on the court is eliminated, we’ll be lucky to survive 10 years as a unified country...given what the Dems have done, are doing, and will do. There is no way that the states will stand for it. It will not be pretty - but that seems to be their goal (I guess).
“Denniston A federal judge in Washington, applying the Supreme Courts 2008 decision creating a constitutional right to have a gun”
Wow, this on a SCOTUS blog? Unreal. Heller didn’t create the right. The Constitution and 2nd Amendment didn’t even create the right. They merely recognized the God-given right!
They still don't want to comply. I don't think that they are too stupid to understand that the court interpreted the low and not made it.
Urbina’s wrong-headed and moronic decision will be overturned on appeal. Like many another Liberal fool, he’s simply attempting to defend the indefensible.
Yupp.
Why can’t SCOTUS come up with a tamper proof decision for a change? RKBA IS A FUNDAMENTAL RIGHT!
Don't be too sure about that. The Heller decision stated that certain restrictions, while not defined, would be acceptable and that gun-free zones would also be acceptable (schools were used as an example).
If a liberal were to interpret Heller, you would only have the right to a revolver in your home and nowhere else.
The laws are better than what DC had. But like California, still have a lot to be desired and interpreted.
My thought is that a single shooter may provide me some defense, but what if 10 bad people are coming at me and I only have a single shot or six shooter? Them my right to personal protection is diminished to less than full capacity.
Okay, I’ll bet you five cyber-bucks it’s overturned.... we’ll see what happens.
It’s obvious from this article that Judge Urbina is a leftist TWIT!
Tell’em to pound sand.
Kennedy is the swing vote and he has not always been 100% reliable. I predicted after Heller that pushing Kennedy could result in massive restrictions on the Second Amendment.
I'll see your five cyber-bucks.
You’re on.
Ten years is an eternity now, think more like ten weeks.
The case has to make it through the Circuit first, before a petition for cert. can even be filed.
“They merely recognized the God-given right!”
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Agreed, most will say God given, Ayn Rand said those same rights existed by virtue of your having been born a human being. Those who want to abridge or eliminate the same rights don’t believe in rights at all except for the absurd “rights” they invent for the purpose of justifying their interference in every aspect of life.
I hope you're right about Kennedy and that he will not pander in order to be liked better.
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