Ammunition Ban (With Affirmative Defense for Properly Registered Gun Owners) Violates Second Amendment

From Herrington v. United States, decided today by D.C.’s highest court (the D.C. Court of Appeals):

Appellant Kevin Herrington was convicted in 2006 of unlawful possession of ammunition (UA), in violation of D.C. Code § 7-2506.01 (2001) (now § 7-2506.01(a) (Supp. 2010)). His conviction was based solely on evidence that he possessed handgun ammunition in his home….

What is now subsection (a) of D.C. Code § 7-2506.01 provides as follows:

No person shall possess ammunition in the District of Columbia unless: …

(3) He is the holder of the valid registration certificate for a firearm of the same gauge or caliber as the ammunition he possesses; except, that no such person shall possess restricted pistol bullets; …

[F]rom the Court’s reasoning [in Heller], it logically follows that the right to keep and bear arms extends to the possession of handgun ammunition in the home; for if such possession could be banned (and not simply regulated), that would make it “impossible for citizens to use [their handguns] for the core lawful purpose of self-defense.” By the same token, given the obvious connection between handgun ammunition and the right protected by the Second Amendment, we are hard-pressed to see how a flat ban on the possession of such ammunition in the home could survive heightened scrutiny of any kind. We therefore conclude that the Second Amendment guarantees a right to possess ammunition in the home that is coextensive with the right to possess a usable handgun there. The government has not taken issue with that conclusion….

[T]he UA statute makes it a crime to possess ammunition of any kind anywhere, regardless of its use or purpose; and the prosecution may obtain a conviction under the statute without having to prove that the possessor violated any registration, licensing or regulatory requirement or was otherwise disqualified from exercising his Second Amendment right. A UA conviction therefore may be based solely on proof that the defendant possessed handgun ammunition in his home -– solely, that is, on proof of conduct protected by the Second Amendment. In a prosecution such as this one, where nothing more was proved at trial to show that the defendant was disqualified from exercising his Second Amendment rights — there was no evidence, for example, that he possessed the ammunition for an illegal purpose or that he had failed to comply with applicable registration requirements for a firearm corresponding to the ammunition –- the UA statute is unconstitutional as applied. [Footnote: We express no opinion as to whether the UA statute is constitutional in other applications (e.g., as applied to possession of handgun ammunition outside the home or for an improper purpose, or possession of non-handgun ammunition), or whether it is unconstitutional on its face.]

In light of the constitutionally-protected nature of the conduct addressed by the UA statute, its provision of an affirmative defense if the accused had registered a corresponding firearm only compounds the problem. The Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” While legislatures do have leeway to reallocate burdens of proof so as to require the accused to prove some facts as affirmative defenses (rather than requiring the prosecution to negate those facts as an element of the offense), “there are obviously constitutional limits beyond which [a legislature] may not go in this regard.” Where the Constitution –- in this case, the Second Amendment –- imposes substantive limits on what conduct may be defined as a crime, a legislature may not circumvent those limits by enacting a statute that presumes criminality from constitutionally-protected conduct and puts the burden of persuasion on the accused to prove facts necessary to establish innocence. That, however, is precisely what the UA statute (as we construed it in [an earlier case] does with respect to the possession of handgun ammunition in the home, by making the defendant’s compliance with the registration condition an affirmative defense.

The limited nature of our holding should be understood. The Second Amendment permits the District to condition the lawful possession of handgun ammunition in the home on the possession of a valid registration certificate for a corresponding handgun (so long as the registration scheme is constitutional)…. [T]he prosecution may assume the burden of charging and proving beyond a reasonable doubt that the defendant lacked the necessary registration in order to satisfy the Second Amendment. By doing so, the prosecution would establish that the defendant indeed was disqualified from exercising his Second Amendment right to possess handgun ammunition in the home. The application of the UA statute to the defendant in such a case would not be unconstitutional.

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