By Dennis Henigan
For the NRA, it was not supposed to be this way. After the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment granted a limited right to have a gun in the home, the NRA bragged that it was just the “opening salvo” in a legal war to use the courts to dismantle the nation’s gun laws.
Yet three years, 400 legal challenges, and “millions of dollars in [NRA] legal bills” later, all the gun lobby has had to show for its efforts is a growing body of case law affirming the right of the people to have strong gun laws short of a total handgun ban. Just last week, the same Texas judge who was previously overruled for ruling that domestic abusers have a right to own gunsthrew out the NRA’s lawsuit claiming that teens have a right to buy semi-automatic handguns. Never before have so many courts so cogently affirmed the constitutionality of so many strong gun laws in such a short span of time.
But the biggest case was yet to come. After the Heller ruling, Washington, D.C. enacted some of the strongest gun laws in the nation, banning semi-automatic assault weapons and assault clips and requiring mandatory handgun registration.
So the NRA teamed up with Dick Heller himself to file the broadest legal challenge yet , arguing that Mr. Heller had a right not just to a handgun in his home, but also to amass an arsenal of AK-47s and high-capacity assault clips in the nation’s capital and to hide his guns from registration laws that help police solve crimes. Even better, the lawsuit would be heard by the U.S. Court of Appeals for the D.C. Circuit, the same court that originally struck down the D.C. handgun ban.
Yet, in what the Wall Street Journal called “the latest in a string of judicial setbacks for gun-rights activists,” the D.C. Circuit this week rejected Mr. Heller’s challenge and failed to strike down any of Washington, D.C.’s strong gun laws. Instead, it ruled that even the District’s toughest-in-the-nation gun laws simply “do not affect the core right protected by the Second Amendment” to have a gun in the home.
Citing and heavily relying on evidence submitted by the Brady Center about the dangers of assault weapons and the effectiveness of strong gun laws, Reagan-appointee Judge Douglas Ginsburg wrote for the majority and upheld D.C.’s assault weapon and assault clip ban. He noted that the ban barred “civilian copies of military weapons” that “pose a danger to innocent people and particularly to police officers,” and that the ban does not “substantially affect [anyone's] ability to defend themselves.”
And while the NRA has claimed that handgun registration amounts to an unconstitutional atrocity on par with the Nazi Kristallnacht rampage or the genocides in Darfur and Rwanda, Judge Ginsburg held that “the basic requirement to register a handgun is longstanding in American law,” has been “accepted for a century in diverse states and cities,” and is so “self-evidently de minimis” that such laws “cannot reasonably be considered onerous.”
The majority also took the unusual step of issuing a lengthy “appendix” lambasting Judge Brett Kavanaugh’s flawed dissent that would have allowed AK-47 arsenals in the nation’s capital. The majority rips Judge Kavanaugh’s suggestion that gun laws must be struck down even if they serve a “compelling government interest in preventing death and crime.” Rather, the majority correctly points out that it is the job of the people through their elected officials, not activist courts, “to determine in the first instance whether banning semi-automatic rifles in particular would promote important law-enforcement objectives.”
Lastly, while Judge Ginsburg concluded that several of Washington, D.C.’s laws were “novel,” he refused to strike down any of those as well. Instead, he gave the District of Columbia the opportunity “to develop a more thorough factual record” at which point the court must “accord substantial deference” to the District’s evidence. So far, such deference has resulted inchallenged laws being upheld.
The NRA’s dreams that District of Columbia v. Heller would result in a free-for-all of gun-toting teens and AK-47 arsenals has so far been soundly rejected. Instead, the NRA’s litigation has led to a host of well-reasoned decisions from Republican-appointed judges upholding strong gun laws. While the NRA recently complained in an e-mail to its members that it is facing “a series of Second Amendment disasters,” who knew they’d be in cases handpicked and funded by the NRA itself?