"D.C. Expands List Of Allowed Guns To Avert Lawsuit,"
reports the Washington Post. "[Alan] Gura [who won the D.C. v. Heller case] filed another lawsuit in federal court in March on behalf of three individuals who wanted a handgun that wasn't on the District's list. To avoid that litigation, Attorney General Peter Nickles said the city decided to expand its list of legal weapons to include those listed on Maryland's and Massachusetts's "safe gun rosters."
There are many guns which have never been submitted to any of these lists due to foreign manufacture, manufacturers being out of business, etc. How can they prohibit use of these perfectly safe handguns?
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Use Scalia's "Heller test." They aren't in common use.
But I do hope he climbs stairs more naturally when not on camera
I think common use refers to kinds of weapons, not models of handguns. It is handguns instead of bazookas or rockets which are in common use for defense of life at home. The model, caliber, manufacturer or design is of no relevance. If the purchase of 'assault' rifles is or becomes common then it would be a common use item not subject to restriction.
I don't see how this follows. The government isn't generally permitted from passing any laws at all regarding fundamental rights, only from passing laws that would have the effect of actually infringing on the rights. For example, although the government cannot prohibit newspaper publication, it can still regulate the production of newsprint, and prohibit certain types of newsprint. Of course, one could bring a 1st-Amendment challenge alleging that a particular type of newsprint prohibition was done with the intention of stifling newspaper publishing, but that would have to be argued; the government would likely assert, in defense of such a law, that it had a compelling interest in the specific kind of newsprint prohibited, and that sufficient alternatives existed that it didn't constitute an infringement.
In the gun context, there's similarly a RKBA, but not a right to keep and bear all conceivable models of arms. Heller's holding was more akin to banning all newsprint in the example above: the Court held that banning all handguns was too strong a restriction, because it removed a whole class of weapons for which there was no good alternative in some contexts. But the court explicitly left open the possibility that more narrowly tailored restrictions would pass.
I'm a strong supporter of the Second Amendment, particularly, as you suggest, the reading that it is a "right to revolution." But it's not at all clear to me that, in any country, no matter how oppressive, what you'd get after a violent revolution would be any better.
I do agree that it would be worse for Ahmedinejad!
It worked out pretty well for us in 1776. And there's been plenty of other revolutions that stymied the effect of an oppressive government, the French (well until they miffed it up, again and again) knocked off the royalty.
California's list (for better or worse) regulates which handguns can be sold by dealers. And to get a gun on the list, a manufacturer has to jump thru a bunch of hoops and lay out some money, to boot. As a result, if a handgun model that's no longer being manufactured predates the list, it's almost certainly never going to get added, and guns that manufacturers stop actively supporting can disappear off the list. However, it's not illegal for Californians to own a handgun not on the list, as long as you comply with all the state laws that apply to all handgun owners. But D.C. rather mindlessly used the list to define the entire universe of handguns that could be registered, and were thus legal to possess. Not on the list? Per se illegal to own in D.C. Which led to some incredibly absurd results, including that the EXACT model gun Dick Heller took to the Supreme Court -- a 40 year old Colt .22 revolver -- could not be registered or legally possessed in D.C. under this post-Heller ordinance.
D.C. Attorney General Nickles and his squadrons of lawyers appear to have belatedly recognized what was going to happen to D.C.'s post-Heller gun ordinance the instant the courts got ahold of this sort of obvious flaw. Changing the "approved" list was a defensive move designed to remove the most glaring reversal-bait in the ordinance. Unfortunately, by doing so, D.C. just made the second round of Second Amendment suits a wee bit harder for the plaintiffs. Not impossible, but not the slam-dunk Second Amendment win it would have been without this change.
Mindlessly? I think they were rather smart considering what they are trying to do is to impede gun ownership as much as possible regardless of the Supreme Court ruling. Using other States gun prohibition lists (even if improperly) gives DC the image of trying to be inline wih the court ruling while giving notice to those other states that their list may be next on the chopping block if the court rules DC's new list is unconstitutional.
Examples: the French Revolution quickly turned murderous, and eventually led to Napoleon; Cromwell's republic was a violent 11-year affair that ended in monarchy again; Russia's February Revolution, a coalition of anti-Tsarist groups, was quickly succeeded by the October Revolution of the Bolsheviks; the Cuban Revolution, a coalition of anti-Batista groups, was consolidated by Fidel Castro after a few years; and of course the Iranian Revolution, a coalition of anti-Shah groups, was consolidated by Khomenei in the roughly 1979-84 period, using the Iraq war as a major pretext for purges of non-Khomeneist revolutionary factions.
I think that Iran has an independent judiciary (the mullahs). What Iran lacks are independent executive and legislature.
I fail to see what the problem is?
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It's Miller that so provides. Scalia rewrote Miller on the sly, the new test is "in common [public/non-military/non-LEO] use."
Iran has had gun-toting people out in the hinterlands for the longest. The Ayatollah Khomenei may have been able to dictate matters in Teheran, but if he'd have ever tried to go up and do so out amongst those people, they'd have skinned him into a nice throw, for around the fire pit. Same today, I suspect, same as Afghan/Pakistan. You didn't see Musharraf sending up batallions of crack troops to confront those tribes, did you? There's a reason for that.
You may be right about the externalities of D.C.'s use of another state's list - if use of the list had been invalidated in Gura's current suit, I strongly suspect that the D.C. opinion would have given California heartburn in the inevitable follow-on challenge to that state's regulations. In fact, one wonders whether there was some back-channel pressure from California's A.G. on D.C. to cave in before there was an adverse court ruling jeopardizing both states' lists?
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I neglected to add that the issue of the clearly erroneous construction of the holding of the Miller precedent by the Heller Court is currently being litigated in the 6th Circuit, in Hamblen v. US. Case No. 09-5025 in the 6th Circuit, Case No. 3:08-1034 in the Middle District of Tennessee.
I hate to think what a "safe gun" means in those particular states. Do their triggers still actuate their firing pins?
Quite the opposite, he's a patient incrementalist with a good eye for sympathetic plaintiffs.
I think they mean that the frame won't rupture and the gun explode in your hand (warning, mildly graphic).
Completely in character, the shooter was more pissed about the manufacturer not promptly replacing the gun than with the fact that he nearly lost his dominant hand.
I'm a strong supporter of the Second Amendment, particularly, as you suggest, the reading that it is a "right to revolution." But it's not at all clear to me that, in any country, no matter how oppressive, what you'd get after a violent revolution would be any better.
I had in mind a slightly different scenario. I was assuming the army and police would remain loyal and on that assumption didn't think even an armed populace would succeed in overthrowing the government. But I did think that the cost to the government of keeping a lid on the population, in terms of resources and lives, would be dramatically increased if the population were armed. I was watching video of riot police beating people in the streets and I wondered how willing the police would be to engage in that sort of behavior after two or three incidents of snipers with rifles expressing their disapproval of that sort of government oppression.
But ... that requires empathic judges ...
Can't fault people for working within the system.
The peoples' republic of maryland is actually not so bad, the requirements are less onerous than California: the new firearm has to have a trigger guard, and be requested to be added by the citizens. Only scary looking pistols with the magazines outside of the grip are expressly forbidden.
The case at hand is Heller, which was 5-4. Are you conceding that all 5 conservatives judge based on empathy? Or at least Kennedy?
good luck building the rest of your arguments on snark.
Why ignore the fact that the 4 "empathetic" judges dissented? To which of the five in the majority were the sympathetic plaintiffs directed?
I agree, sounds like snark to me.
The followup suit against California's roster is Peña v. Cid and was filed April 30, 2009. It has an entry on the Calguns Foundation wiki.
-Gene
On the other hand, if you're savvy enough to load your own ammo, you're savvy enough to read that using reloaded ammo voids the warranty, especially if you load excessive powder in it. From your link:
DANGER CAUSED BY RELOADED AMMUNITION (http://consumerist.com/tag/reloaded-ammunition/)!
Subject: Five-seveN serial # 386102425
Date: 6-9-2008
The following conclusions are results from FNH USA's evaluation of the Five-seveN serial # 386102425 sent in to our service facility after a failure using reloaded ammunition.
Upon examination of this pistol we were able to determine that it did not fire "out of battery" and the catastrophic failure exhibited in this example was clearly caused by excessive cartridge pressure generated by reloaded ammunition.
Our examination showed that the shoulder of the case was separated from the rest of the cartridge and it was left in place inside the chamber. The position of this piece of brass shows that the handgun was in full battery when the reloaded cartridge was fire and the excessive pressure occurred. Another indicator that confirmed our findings is the primer extruded back into the firing pin hole and a portion of the case head was stuck to the breech face. This was caused by brass flow back into the leaded chamber indicator hole.
Additionally there was serious damage to the slide assembly which is clear evidence of excessive pressure. The lower edge of the breech face was peeled away and the slide itself was deformed from the excessive pressure. The pressure that caused this damage exceeded OEM ammunition standards.
The FN ballistics laboratory was able to duplicate the catastrophic failure almost identically with 2x the load data provided by the consumer. In this test the shoulder of the cartridge was left in the chamber at the same position as #386102425, the slide was damaged in the exact same way as #386102425, and the cartridge case head seperated in the same manner with the brass flowing into the loaded chamber indicator hole.
The design of the Five-seveN pistol, being a recoil operated delayed blow back system, has key parameters that prevent an "out of battery" firing.
Our established testing data indicates the firing pin will not strike the primer of a cartridge after .1180 inch. of rearward slide travel. With the slide moved rearward .1540 - .1545 inch. (true out of battery limit), it is impossible for the firing pin to strike the primer, at this point the trigger lever does not actuate the lever of the firing pin safety. It was also noted in our examination that the firing pin safety was still fully functional on Five-seveN #386102425.
It is FNH USA's finding that the catastrophic failure of Five-seveN #38610xxxx was due completely to excessive pressure caused by the reloaded ammunition and was not the result of an "out of battery" firing.
Please be aware that the owner's manual for the Five-SeveN handgun clearly states on page 4 that FN Herstal declines any responsibility and invalidates any guarantee and liability claims for incidental or consequential damages (injuries, loss of property, commercial loss, lost of earnings and profits, ...) resulting in whole or partly from the use of reloaded ammunition.
If you have lost or misplaced your owners manual please contact our customer service department at 703-288-3500 x122 for a replacement.
Tommy Thacker
Product Manager
FNH USA, LLC.
However, if the city bans too many types of handguns, it may interfere with people's ability to own one. Different people prefer different handguns for many reasons, including how well it fits their hand, the technology behind it, how often it needs to be cleaned, how carefully you need to store it, how accurate it is, capacity, recoil, etc.
I looked up DC's current restrictions. According to this document, revised Jan 2009, the restrictions are found in DC Code § 7-2505.04.
According to the DC government's own website, the list of DC's "safe" handguns was defined as coterminous to California's list of "safe" handguns as of Jan 1, 2009.
Here's how to get to that particular code section.
Division I. Government of District.
Title 7. Human Health Care and Safety. (Refs &Annos)
Subtitle J. Public Safety.
Chapter 25. Firearms Control.
Unit A. Firearms Control Regulations.
Subchapter V. Sale and Transfer of Firearms, Destructive Devices, and Ammunition.
>>§ 7-2505.04. Prohibition on sale, transfer, ownership, or possession of designated unsafe pistol.
As of today, California's list is pretty long. You can find it here. You can also see DC's list here.
If DC fought Gura in court, I think DC would win this time. The question is whether it would be worth it--the cost of the litigation vs. letting people use a few models of handguns that Maryland and Massachusetts think are acceptable.
I don't know which models, in particular, Gura wanted DC to add. I think the merits of his lawsuit would turn on whether those particular guns added something to a citizen's ability to defend himself.
In the next few days, some of the pages I link to might change, if DC is changing its laws as part of a settlement agreement with Gura.
In any event, congratulations to Mr. Gura for winning again.
Given that it's a constitutional right, and arguably subject to strict scrutiny, doesn't that stand things on their head? I would think the District should have to prove that it's arbitrary restrictions add something to public safety. Gonna be hard to prove that, what with states that don't have such restrictions lacking epidemics of people blowing their hands off.
Here is part I of the DC emergency regulations. Part II is due some time next week as part I still didn't allow the .22 revolver in Heller to be registered.
-Gene
Hell, WE'd be better off if WE had that!
I reload all the time. Sorry, but at 1,000 rounds a month it is the only economic option. Plus, factory ammo is loaded about 20% too hot for my sport. BTW, my five stage reloading machine has one of its stages used to check for powder over fill.
That numbskull badly overloaded that round. Primer flow is an unmistakeable sign of overpressure. That the case flowed is absolute proof positive.
While stronger components may have hepled, consumers don't want to pay the extra price nor carry the extra weight needed to protect some idiot using torpex instead of smokeless powder.
I'm not AAA but my guess is that he's talking about Cowboy Action Shooting. See http://www.sassnet.com/ for more info. Not my cup of tea but it looks like fun. Other games require hand loading if you expect to be even minimally competitive, most notably benchrest.
Link to video
Link to USPSA (United States Practical Shooting Association)
Link to Minnesota events calendar. Each weeknight league match uses about 100 rounds. I shoot two nights a week. Weekend matches use about 150 rounds. Add Rounds for practice and chronographing and it adds up.
Urban government at it's near-finest, surpassed only by Detroit's.
Some may believe that Heller safeguards the right to possessed an unregistered handgun, or to reload ammunition, or to possess a gun after being convicted of a domestic violence misdemeanor, but I believe it is difficult to forecast how the Supreme Court will shape those points.
The more gun advocates push for extreme and even absolutist positions, the more likely the judicial polishing of Heller's freshly minted (and less than obvious) teaching will disappoint them.
In general, the path to safety when reloading is in not making mistakes rather than making stronger guns, in the same way that better knots and anchors, rather than stronger rope, is the path to rappelling safety. The pressure rises exponentially with the amount of powder, so the most common mistake - double charging - is usually going to vastly overload the gun (not always - a doubled light target 38 load may not explode an N frame 357 - or it might - it will be over the 357 max load). The second most common mistake is to put in no powder at all, which is just as bad - the primer will push the bullet partly down the bore, and the next round will encounter an obstructed bore, which can easily lead to catastrophic failure. In either case, a gun that is merely 50% stronger is not likely to change the outcome; the curve is exponential enough no reasonable gun is likely to affect the outcome very much.
Reloading, like climbing or driving in traffic, is one of those activities that has some unforgiving failure modes.
Since the DC regulation related to possession, it covered old firearms, not just those in the process of being "introduced" to commerce. E.g.,to possess a 50 year old handgun produced by a manufacturer who has been out of business for 40 years would require the manufacturer to have "established the safety" to the satisfaction of the Calif, or other, state government, some decades before those state governments had established their lists and procedures. This requirement is impossible to satisfy.
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That's what makes it a reasonable restriction. Similar to the Heller minority, RKBA is, of course an individual right! (that attaches ONLY to the individuals who are members of the organized militia).
It would be difficult for civilians to overthrow the government, but not impossible. OTOH if the government decided to use the military and law enforcement to forcibly restrain the populace, military officers would accurately consider that a suicide mission.
Also, given how many of those military and law enforcement personnel are state-oriented, not federal, I find it doubtful they would all remain loyal to an oppressive congress. Economy isn't the only reason to reload. Benchrest shooters reload for accuracy. Gunowners with discontinued firearms do so as the only source of ammo. And there are those who develop new or modified cartridges. Given that gunowners in 47 states have no problem purchasing safe firearms without government interference I'd call these "safe gun lists" what they really are, just another form of gun control.
At this point, the shortages have been going on so long, merely wanting to have a reliable supply of ammo is enough reason to reload.
Good luck finding primers.
Heller did not say that individuals should have unrestricted freedom to choose the make, model, and color of the handgun they wish to use for self-defense.
And in terms of an individual's ability to effectively use an operable handgun in self-defense, the asserted defects in the safe handgun roster have little or no impact.
In terms of efficacy for self-defense, a black handgun which is on a safe gun roster is no different than the identical make and model in two-tone which is not on the roster.
Similarly, how is a rostered 1911 semiautomatic pistol made by one manufacturer (e.g., Springfield Armory) any more efficacious for self-defense than a mechanically identical 1911 semiautomatic pistol made by someone else (e.g., Para-Ordnance) that is not on the roster?
Even with the safe handgun roster scheme, there is arguably no significant restriction on an individual's ability to defend him or herself with an operable handgun, and therefore no necessity for the court to engage in the kind of "strict scrutiny" analysis the Gura plaintiffs are proposing.
I predict the California plaintiffs will have a tougher time, as the Nordyke opinion (which follows Heller's lead in this regard) facilitates this approach.
(The plaintiff selection in the California case is interesting; at least three plaintiffs seem to have chosen exactly the same handguns for self defense as their DC counterparts! Their choice of handguns appears to be driven less by efficacy for self defense than to replicate/manufacture an identical controversy in California.)
Anyways, I agree with the observation above that this may be an example of get while the getting is good; I predict some disappointment, and hope it doesn't pave the way for more severe gun restrictions.
Harry Jernigan
The CA, MD, MA approved gun rosters are a means to limit firearm ownership, they are not a means to protect consumers. Using the color of the frame or slide to demonstrate this, Gura will win the argument that the government does not get to decide which guns are in "common use" per Heller, because then the government can arbitrarily make guns uncommon in use, and disqualify them from ownership.
Gura's genius lay in arguing self defense as a human right.
Cases such as Lawrence v Texas, in which condom use between consenting adults during consensual sex for protection of self and others from disease, protected by an unenumerated right to privacy, are completely contradicted if self defense against a nonconsensual act of violence by a criminal is forbidden.
I would love to see Lawrence brought up in arguments, for just this reason. The 2nd Amendment protects individuals from government's infringement on one's right to self defense. This could guide incorporation and most other legal arguments without failure.
I like that phrasing. I expect to see it in many more arguments in the future.
For example:
You have a right to A doctor. Not necessarily the one you want.
You have a right to A lawyer. Not necessarily the one you want.
You have a right to A car. Not necessarily the one you want.
... and oh-so-many more. (Life? Liberty? The Pursuit of Happiness?)
Of course, there's a difference in being limited in your choices by finances and being limited by the government, but that's what makes the argument so fun!
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Gura never made the argument in light of Miller, and facilitated exactly what you claim he is against. That is, the government unconstitutionally made certain guns uncommon in use, and later held that the criteria for permitting the government to ban possession is the "uncommon in use" situation that was created by the unconstitutional ban.
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Levy and Gura also have no objection to registration or licensing for possession.
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I foresee continued use of the Heller case effectively stripping gun rights. IMO, the country would have been better off if the dissent had carried the day in Heller. That would more clearly illuminate the government's claim to protect and respect the RKBA is false.
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The majority in Heller, and every federal court that has cited Presser, corrupted the application of binding precedent, and ought to be called out on it loud enough to wake the public.
This is what worries me. We may end up with an "undue burden" standard similar to the privacy/abortion cases; the safe gun roster would easily pass the test, and the door would be opened for more drastic gun regulations.
In any event, the safe gun roster does not prevent any of the plaintiffs in the DC or the California case from acquiring, possessing, or effectively using operable handguns for self defense. Gura may be framing the argument that the second amendment protects an unenumerated right to self defense (taking the cue from Heller and Nordyke), but the law being challenged does not significantly burden that right.
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Did you notice the "Firearms on this Approved Firearms Roster do not necessarily comply with the requirements of the Attorney General's Handgun Sales Regulations" reminder?
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I have the same concern that Harry Jernigan has. This case is more likely to resolve at "undue burden" than "strict scrutiny."
Not hardly. Law enforcement agents are exempt from the law. It's not at all about real safety.
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