D.C. Court of Appeals Accepts (Partly) Defendant’s Second Amendment Claim

The case is Plummer v. United States, decided today.

Several years ago, before D.C. v. Heller, Plummer was convicted of carrying a pistol without a license and of possessing an unregistered firearm. (He was acquitted of the greater offense of carrying a pistol without a license outside one’s home, so the jury essentially found — perhaps inconsistently with the evidence — that he was only carrying the pistol inside his own home.) But both offenses have as an element that the gun be unlicensed or unregistered, and at the time D.C. law did not allow people to get licenses or registrations for newly owned handguns.

The D.C. Court of Appeals concluded:

In light of the handgun registration and licensing scheme in effect at the time of the incident in this case, Mr. Plummer could not have registered his handgun, but registration was a prerequisite to obtaining a license, despite the Second Amendment right to keep a handgun in his home for defensive purposes…. [W]e conclude that Mr. Plummer preserved and had standing to raise the Second Amendment issue as a defense to the criminal charges against him by moving to dismiss the indictment, even though he did not attempt to obtain a registration certificate and license for his handgun prior to his arrest. See Chicago v. Atchison, Topeka & Santa Fe Ry. Co., 357 U.S. 77, 89 (1958) (where the statute “is completely invalid insofar as it applies to [the company], that company was not obligated to apply for a certificate of convenience and necessity and submit to the administrative procedures incident thereto before bringing this action”)….

[But] whether Mr. Plummer could have successfully obtained a registration certificate prior to the imposition of charges in this case is a question we cannot resolve on this record. D.C. Code § 7-2502.03, formerly codified at D.C. Code § 6-2313 (1995 Repl.) contains qualifications for registration which could have been used to determine whether Mr. Plummer would have been disqualified from obtaining a registration certificate. Mr. Plummer has not challenged those qualifications; they include age, criminal history, mental capacity, and vision. Because it resolved the Second Amendment issue in accordance with then existing precedent in this jurisdiction, the trial court did not have an opportunity to decide the disqualification issue which involves a mixed question of fact and law.

Accordingly, for the foregoing reasons, we are constrained to remand this case to the trial court with instructions to hold a hearing to determine whether Mr. Plummer would have satisfied the statutory requirements in D.C. Code § 7-2502.03.