Friday I wrote an initial article on the Heller decision and I referred to several issues that would spark additional litigation. Since that time there is additional information that has come to light. In addition, there was a response to my article that I want to respond to.
The first issue relates to what guns are protected by the Court’s decision in terms of what could be acquired and possessed under a ministerial licensing-registration system and not banned outright. In the course of that discussion I noted that in 1932 as part of a weapons control law enacted for the District by Congress (this was pre 1973 Home Rule), Congress enacted a definition of banned “machineguns” which includes semiautomatic firearms to an extent.
The District of Columbia has a unique status under the United States Constitution (Art. I, § 8, cl. 17), the United States Supreme Court has repeatedly held that Congress shall have power “[t]o exercise exclusive Legislation in all Cases whatsoever, over” the District of Columbia. The power is plenary. Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes. See, e.g. Palmore v. United States, 411 U.S. 389, 398-399 (1973)
Unlike what the DC government did under Home Rule in 1976, the “machinegun” definition emanates directly from an Act of Congress and thus raises Congressional power. Mayor Fenty’s assertion that he will not allow semiautomatics to be registered because Congress expressly enacted an auto loading ban in 1932 (and exactly what was intended is unclear) is therefore not unreasonable. It is one thing to throw out a local ordinance that Congress never explicitly authorized – the 1932 Act of Congress expressly allowed gun possession on private property as many of the Heller briefs noted. It is another thing to declare a congressional statute invalid.
There was a reason why Dick Heller sought to register a particular type of handgun as opposed to another and it relates to the brain capacities of Bob Levy and Alan Gura. Dick Heller sought to register – and the application is attached to the Court documents as an exhibit and the backup material (I sent an email to the manufacturer regarding this to make sure I was correct) – attempted to register a single action revolver which for want of a better term is a cowboy “six shooter” – though this one had 9 shots because it was a .22 caliber weapon and the cylinder could be manageable.
I should add that a single action revolver is not exactly an easily dischargeable handgun. In order to be fired the hammer has to be pulled back and the trigger pulled to be fired – each time to discharge the bullets in the cylinder. Modern revolvers (double action) – just as semiautomatics – allow the gun to be fired each time the trigger is pulled. In the case of autoloaders (semiautomatics) gas from spent cartridges reloads the gun. In the case of revolvers I would argue that double action revolvers are safer and more effective than semiautomatics because they are not “chamber loaded weapons” and the gun’s shot capacity is limited by the size of the cylinder as opposed to a separate detachable magazine. (I should add that there are apparently fixed magazine pistols) But that is a matter of personal choice and observation. The reason that Heller sought to register a revolver was to stay away from the “machinegun” issue and get into the validity of an Act of Congress.
What Congress intended to cover is unclear. However, the statute (what is now DC Code § 22-4514(in 1932) has been held to cover any semiautomatic firearm that can accept a magazine in excess of 13 rounds. United States v. Woodfolk, 656 A.2d 1145, 1147-1149 (D.C.App. 1995), cert. den. 516 U.S. 1183 (1996). It is arguable – as the Woodfolk Court noted – that the DC registration prohibition as to machineguns as enacted locally may be narrower than the local ban but the Congressional ban is greater than the traditional machinegun definition (single pull of the trigger results in multiple rounds being discharged).
However, the Congressional ban does cover handguns and rifles. While there are semiautomatic shotguns that can accept a detachable magazine, those have been held to be “destructive devices” and thus regulated under the National Firearms Act. They are clearly not protected “arms”. Most auto loading shotguns have tubular fixed magazines. I should add that there are a number of .22 caliber auto loading rifles with tubular magazines that are not banned. Similarly, there are a number of semiautomatic rifles with fixed magazines fed with “stripper clips” – the primary example being the Garand rifle of WW II fame. And, apparently there is a history of semiautomatic pistols with fixed magazines which may make a comeback.
The rational for the expanded machinegun definition enacted by Congress was stated in Woodfolk as follows:
“Congress enacted D.C. Code section 22-3214(a) in 1932prohibiting the mere possession of certain weapons, ‘to enforce drastically a prohibition against carrying particularly dangerous weapons within the District of Columbia.’ Worthy v. United States, 420 A.2d 1216, 1218 (D.C.1980). The legislative intent was to strengthen the existing law and tighten controls over the possession of dangerous weapons. United States v. Parker, 185 A.2d 913, 914 (D.C.1962). We explained the legislature’s rationale by stating that ‘[t]he weapons listed in subsection (a) are so highly suspect and devoid of lawful use that their mere possession is forbidden.’ Worthy, supra at 1218 (citing United States v. Brooks, 330 A.2d 245, 247 (D.C.1974)).
“Similarly, we looked at the legislature’s intent when we interpreted a D.C. statute that required registration of all firearms within the District, outlawed possession of unregistered firearms, and specifically stated that registration certificates could not be issued for machine guns. We concluded that when the legislature excluded machine guns from those firearms which could lawfully be registered, the legislature was ‘concerned primarily with the inherent fire power of certain weapons, not with the question of firearm modification after registration. The rationale supporting this provision [is] to prohibit residents of the District from possessing guns whose fire power has legislatively been deemed to be dangerous….’ Fesjian v. Jefferson, 399 A.2d 861, 865 (D.C.1979). Hence, we held, even though the machine guns in question were presented for registration with clips holding less than 12 rounds, ‘[s]ince the guns in question, by virtue of their structure, had the capability to shoot the prohibited number of rounds without reloading, they may properly be found to be unregisterable.’ Id. We think a somewhat similar focus underlies the statute before us.
“It is true that the registration statute in Fesjian defines a machine gun as ‘any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot … semiautomatically more than 12 shots without manual reloading.’ D.C. Code section 6-2302(10). This is a fuller definition than that contained in section 22-3201(c) and could lead to different results in particular cases. See Townsend v. United States, 559 A.2d 1319 (D.C.1989) (unregistered pistol missing firing pin and spring mechanisms was unlawfully possessed under D.C.Code section 6- 2311(a) even if not “operable” for purposes of D.C. Code section 22-3204). However, in Fesjian we were dealing with constitutional issues and addressed the statutory purposes in broad terms. Given the expansive definitional language that, as we noted, ‘clearly’ prohibited registration of the firearms in question; Fesjian, 399 A.2d at 865, we had no occasion to address further the issue presented in this case.” 656 A.2d at 1148.
Assuming that the Council was to adopt the core 1932 definition of what a “machinegun” is – and thereby arguably allow a greater number of semiautomatic firearms to be registered under remand, I sincerely doubt that it would undo an Act of Congress by going to the traditional “machinegun” definition.
I would add that any effort to address the 1932 definition by Congress getting into this raises the specter of “assault weapons” and other issues. The doctrine of “Member Protection” counsels no action at all by Congressional leaders – particularly Republicans. The Republicans in Congress have at least 20 suburban Republicans seats on the table this fall. In fact, Mark Kirk a Republican from Illinois who is from the Chicago suburbs wants to reenact or reinstate the 1994 prospective ban on the domestic manufacture or importation of various categories of firearms that lapsed in 2004. The last thing John McCain (who voted to extend the 1994 prohibition on the importation or manufacture of assault weapons I might add – see the Roll Call on final passage of S. 1805 of 2004) needs is to vote on whether to “legalize in the Nation’s Capitol” a lot of very bizarre looking guns such as the Tech-9.
Moreover, the Supreme Court in Heller held that machineguns were not “arms” and “unique and dangerous” weapons are not “arms” either and that is the same type of language used in the cases cited in Woodfolk. However, the Second Amendment now clearly applies to individual on federal territory. One of the main rules of Constitutional litigation is not to decide issues in cases unless expressly presented for review. If a case can be decided on statutory grounds to avoid the Constitutional issue, that is the desired result.
It does make sense for the attorneys to actually litigate if all semiautomatic rifles and handguns that accept a detachable magazine were indeed statutorily banned as “machineguns” by Congress. Semiautomatic pistols were in common existence in 1932 and I sincerely doubt that an all out ban on every semiautomatic pistol and rifle was intended by Congress – particularly when semiautomatic target pistols existed at that time – but a ban of some sort was intended.
Moreover, I do know that the US Attorneys Office in the late 1970’s did not routinely charge persons carrying pistols without a license where it was a semiautomatic also with “machinegun” possession. The reason I know that is that I interned for the District of Columbia Superior Court at that time.
Finally, Congressional intent may have been clarified by the authority Congress gave the Treasury Department in 1968 to import only firearms that meet a “sporting test”. A “machine gun” does not meet a sporting test. Numerous semiautomatics were admitted under a sporting test so they are clearly not banned.
On this issue, I would suggest the strategy will be to “litigate” not “legislate” with another round of very technical litigation on what was intended in 1932.
Secondly, as to the litigation in San Francisco as to public housing, the Heller case was brought not by the NRA but by Bob Levy who is a very wealthy individual who made his money in the computer-financial analysis field.
Levy is a pre 1937 Constitutional Revolution style property rights defender. He is not with the NRA but associated with the Cato Institute. While it may sound simple, he feels unless it is some sort of public accommodations style situation, no one should tell another what they can do on their property. As such, he is adamantly opposed to these “guns in parking lots” legislation which in effect forces businesses to allow guns on to their private property. I do not know about how he feels about guns in government owned residential property or whether he even approves of it. He may take a Margaret Thatcher approach to this where she attempted to privatize and sell to the tenants all government housing in England.
But as to the San Francisco Public Housing situation, California has had a long history of Constitutional Home Rule enshrined in our Constitution since 1879. While this is true across the board, it is particularly true as to chartered entities which San Francisco is. The control of municipal property has been held to be a “municipal affair” that the state cannot regulate.
Also, Justice Scalia noted that bringing guns on to government property could be strictly circumscribed or prohibited which public housing is. What you may see is a US Senate amendment (no US House Rules Committee control and no germane issues) to one of the pending appropriations bills that shuts off federal money to any local government which bars people who live in federally assisted housing from having guns which private individuals on their own property could have. However, I am not sure Congress can shut off the money even under the rational of South Dakota v. Dole, 483 U.S. 203 (1987).
Last, but not least, as to open carrying of guns, “open carrying” of loaded guns in urban areas of this state has been banned since 1967. Open carrying of unloaded weapons has also been in effect banned because of the “school zone” law enacted in 1994. The various legislative measures by former Assemblywoman Rebecca Cohn obliquely referred to in Jim March’s blog posting that were drafted by Dr. Cavala and I was really “mop up-clarification” measures.
In fact, the California Rifle and Pistol Association in response to an assertion by Rebecca on this issue denied vociferously that it supported open carry and instead pointed out it supported reasonable “concealed carry” licensing regulations. However, because the specter has been raised again, I see a Dr. Cavala request that one of his clients reintroduce the Cohen bills. In rural areas of the state, state law allows an open carry license because of legislation carried by former Assemblyman Willard Murray.
I should add that Wayne LaPierre when asked about this stated that the NRA supported reasonable “behavioral conduct” regulations. The California Rifle and Pistol Association in response to an assertion by Rebecca on this issue denied vociferously that it supported open carry or opposed her legislation. Instead, it pointed out it supported reasonable “concealed carry” licensing regulations. I should add that on its’ most recent Grassroots Alert the NRA pointed out that it helped enact in Rhode Island legislation to allow safe transport of unloaded and locked up handguns without a carry license. I know that NRA representative in Rhode Island – a state with an individual Rights Clause – stated that they wanted no part of any effort to allow open carrying of guns in public.
Open carrying is a public safety issue. There are legitimate reasons for civilian open carry – the prime example is private security personnel – military parades and the like. However, nothing will set off Chief Justice Roberts and Justice Kennedy as a proliferation of open carrying. Open and concealed carrying of guns within the District of Columbia has been presumptively banned since 1953 by an Act of Congress passed by a Republican Congress signed into law by President Eisenhower. The Common Law banned open carrying of weapons except under very stringent conditions.
The public reaction to a proliferation of open carrying was just on display in Georgia. Current Georgia Code § 16-11-128 bans carrying of handguns open or concealed in public without a license. A proposal was made by a group in Georgia called Georgia Carry to lift the ban on unlicensed open carrying that the Georgia Supreme Court upheld in 1911 under the Georgia Constitution’s explicit individual right to keep and bear arms clause. That effort was stopped by the Republicans who control the Georgia Legislature who squished the bill in committee because of opposition from the business community and others.
Since the mid 1980’s Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as “The Assembly’s resident genius” by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.