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.
Soronel Haetir says:
I’m not sure SCOTUS approved that entire list of qualifications. Certainly they did not go through that list before ordering that the city produce a license for Heller.
November 12, 2009, 5:57 pmfwb says:
There is still the explicit requirement that Congress exercise exclusive (not absolute, but exclusive of ALL other legislative bodies) legislative power in the District and that ANY exercise of legislative power by any other body violates the Constitution for the United States.
Tiocfaidh ar la!
November 12, 2009, 6:31 pmCrunchy Frog says:
IIRC the list didn’t exist until after Heller was decided, with the legislation crafted to bring DC into ‘compliance’.
November 12, 2009, 7:08 pmgary myers says:
Perhaps Prof. Volokh could comment on the relief that the DC Ct. of Appeals ordered: a remand for a judge (not a jury) to determine whether Plummer could (hypothetically) have satisfied the license and registration requirements even though at the time of the offense no official could have granted him either under the law. This seems to have an Alice in Wonderland quality and seems to suggest a criminal conviction can be made to turn on whether (after the fact) the government can be shown that the defendant failed to comply with a “law” that he could not comply with at the time of the offense but one that arises solely from constitutional slicing and dicing. I would think that such severance problems call for different results in criminal cases (Plummer) than in cases involving prospective injunctions (Heller).
November 12, 2009, 7:27 pmSoronel Haetir says:
Mostly I’m curious about whether the vision requirement is fragile or not.
November 12, 2009, 7:28 pmAlice says:
The list did exist before Heller, but it applied only to firearms that could be registered (i.e., shotguns and rifles, not handguns). But you’re right that the list did not apply to Plummer at the time he carried the handgun and that the list is not necessarily co-extensive with facts that would “disqualify” someone from exercising his Second Amendment rights.
November 12, 2009, 7:39 pmGene Hoffman says:
As long as Plummer is not a felon or mentally ill, he’s likely to prevail.
I think the appeals court is right to be unsure of the latter issue.
-Gene
November 13, 2009, 12:45 ampifu says:
Mostly I’m curious about whether the vision requirement is fragile or not.
November 13, 2009, 3:39 amrbj says:
OK, I have not read the whole opinion, but:
How does that square with this:
ISTM the court just said Mr Plummer could not have obtained a registration certificate in the first paragraph, then says that the court court not determine whether or not he could have obtained a registration certificate in the second paragraph.
What am I missing?
November 13, 2009, 8:37 amPubliusFL says:
The second quote has an implicit “if registration were possible.” In other words, in actual fact the law did not allow for registration and was unconstitutional. But there’s not enough of a record for the court to be able to tell whether Plummer would have been able to register if there were a constitutional registration scheme in place.
November 13, 2009, 10:47 amgulc09 says:
“Perhaps Prof. Volokh could comment on the relief that the DC Ct. of Appeals ordered: a remand for a judge (not a jury) to determine whether Plummer could (hypothetically) have satisfied the license and registration requirements even though at the time of the offense no official could have granted him either under the law. This seems to have an Alice in Wonderland quality and seems to suggest a criminal conviction can be made to turn on whether (after the fact) the government can be shown that the defendant failed to comply with a “law” that he could not comply with at the time of the offense but one that arises solely from constitutional slicing and dicing.”
To take a stab at it…what’s happening, I think, is that the court’s unwilling to reverse all convictions on 2nd amendment grounds if there’s a clear reason that the person wouldn’t have been able to get a license regardless. In other words, it’s pretty clear that people with certain prior gun felonies wouldn’t meet registration requirements. So it would be somewhat absurd to reverse a conviction of someone who had a prior gun felony and say that the new conviction violates his 2nd Amendment right to possess a handgun for self-defense, when he couldn’t lawfully possess one.
It is a bit challenging, since the provisions didn’t apply to handguns b/c there was the complete ban…but it’s at least taking the then-existing requirements and using them as the benchmark. (in other words, but for the handgun ban, could someone have gotten a license?)
November 13, 2009, 11:50 amDisintelligentsia says:
How can an invalid licensing scheme lead to criminal charges even if a valid scheme could? The crime is having possession of a gun without first getting registered and/or licensed. Clearly the defendant could not have availed himself of the review process which would have told him he could register. IOW, his defense whatever the lower court finds is: I was deprived the opportunity to test whether I could have a gun registered. If I knew I couldn’t have a gun registered I wouldn’t have bothered obtaining one.
November 13, 2009, 12:41 pmThe Twin Cities Carry Journal › Blawg Review #238: Celebrating the International Day of Tolerance … and the NRA’s Birthday says:
[...] year’s Heller decision is beginning to percolate through the courts; the DC Circuit weighs in, and the Chicago Gun Case is gearing up to be heard by the Supreme Court. (As I understand it, [...]
November 16, 2009, 10:37 am