Another avenue of attack?

Although the Heller decision dealt mostly with the “keeping” part of the right to keep and bear arms, one must assume that if the keeping of arms is an individual right, so must be the bearing of arms. This, predictably, has not stopped Washington DC Mayor Fenty from pretending that “keep and bear arms” means “keep and . . . keep arms.”

Third, the Supreme Court’s ruling is limited to handguns in the home and does not entitle anyone to carry firearms outside his or her own home.

Granted, the majority opinion states that one of the permissible limits on that which shall not be infringed (“permissible limits on that which shall not be infringed“–why is that so hard for me to comprehend?) is the banning of concealed carry. Although I cannot really grasp the justification (either Constitutional or moral) for such a restriction, I do acknowledge the historical precedent for such bans, as far back as the 18th century, so I suppose the argument could be made that the Framers were not averse to prohibitions of concealed carry.

Regardless, Fenty appears intent on banning open carry, and in so doing would seem to be opening DC to another legal challenge. Actually, another legal challenge may already be in the works, as the NRA appears to be moving in the direction of a challenge of DC’s ban of semi-automatic firearms, based on a rather bizarre definition of “machine guns.”

The D.C. semiautomatic weapon ban applies to any firearm capable of carrying 12 rounds or more. In effect, that restricts purchasers of modern handguns to revolvers — such as the .38 Special or its powerful successor, the .357 Magnum — which typically carry five or six rounds at a time and cannot be modified to hold more.

Most other handguns are outlawed, even though most are designed for magazines that carry 10 rounds or less, because they could carry more rounds with modified magazines. Weapons capable of holding such magazines are illegal “machine guns” under D.C. law.

While they’re at it, I would hope the NRA challenges the ban on carrying firearms outside one’s home.

Living in Illinois, which might (I’d have to check) be the only state to utterly ban both concealed and open carry (although open carry is permitted outside incorporated areas), that’s a challenge I would certainly like to see. Such an effort could be made here, of course, but it seems to me that there might be a couple reasons that DC would be a better place for it. First, of course, is the fact that there would be no need to first settle the question of incorporation–it is now settled law that the Second Amendment is applicable against DC gun laws. Secondly, the DC Appellate Court has shown itself to be at least somewhat inclined to protect gun rights–I am not so sure that this is the case in the 7th Judicial Circuit (in which Illinois lies).

This looks like an area on which we could gain some ground. I would hope we do not fail to do so.

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5 Responses to “Another avenue of attack?”

  1. Anonymous Says:

    Not that I have looked very hard yet, but is there anyone telling Fenty that the term “handgun” encompasses both revolvers and pistols, the latter of which are generally magazine-fed semi-automatics that are quite “commonly available”? I have read the Heller opinion and I do not find anything carving out the pistol side of the the generally accepted “handgun” definition. Methinks Fenty is about to get his a@# handed to him on any number of fronts.

    Allthewayto11

  2. 45superman Says:

    Hey–good to hear from you, Alltheway. Yeah–Fenty apparently just likes keeping the attorneys busy, at taxpayer expense.

  3. jed Says:

    I’ll have my own Heller analysis up later, and by that I mean maybe tonight or tomorrow at the latest.

    But, in brief, the opinion is a little difficult to digest in regards to whether it would apply to a DC prohibition on carry outside the home Scalia (rather delightfully, I think) quoted Ginsburg (page 10) from a prior case to establish that “bear” referred to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.”, without restricting that to “inside a residence or place of business”. But then later, in the “judgement” section (near the end), the ruling only directed DC to allow registration and issue Heller a license. I don’t recall any language in the ruling about rendering open carry in public as unconstitutional, just the handgun ban and “safe storage” provisions.

    It’s easy to claim that this ruling is a bit muddy, but even Scalia stated that it wasn’t the court’s intent to visit every aspect of 2A interpretation.

    Fenty will try to get away with whatever he can. Unfortunately, more lawsuits will be needed — as Scalia implied.

  4. 45superman Says:

    I agree, Jed, that the ruling did nothing to declare that prohibiting open carry is unconstitutional, but I simply can’t see how it can be claimed that an individual right to keep and bear arms can be read in such a way as to allow banning all forms of carrying arms (and if concealed carry is out, that leaves open carry).

    I tend to be a cockeyed optimist, though.

  5. Riposte3 Says:

    The way Scalia tied RKBA to the right to self defense should make it very easy to argue that some form of carry, whether open or concealed, must be allowed. It should only take one sentence.

    “The right to self defense does not end when you step out of your home.”

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