THINGS DID NOT go well the last time the U.S. Court of Appeals for the D.C. Circuit took a hard look at the District’s gun regulations. In 2007, the court struck down as unconstitutional a handgun ban and a requirement that long guns in the home be kept unloaded and secured with trigger locks at all times. A conservative majority of the Supreme Court used the case as a springboard in 2008 for a ruling that the Second Amendment recognizes an individual right to keep and bear arms.
Lawyers for the District would be forgiven for being a little nervous last November when three of the most conservative judges on the appeals court were randomly assigned to hear a challenge to the District’s revamped gun regulations.
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.