Seven years after the U.S. Supreme Court struck down the District of Columbia’s ban on handguns, D.C. has lost another gun case before the U.S. Court of Appeals for the District of Columbia — one that involves the very same plaintiff, Dick Heller.

In the latest case, Heller v. District of Columbia, a three-judge panel has thrown out several gun registration requirements that were clearly intended to discourage gun ownership and make it more difficult to own a gun in the nation’s capital.

The original Heller case, which was decided in 2008, was without doubt the most important case on the Second Amendment since the amendment was first ratified on Dec. 15, 1791 as part of the original Bill of Rights. It was the first case in which the Supreme Court held that the Second Amendment protects the right of individual Americans to own a gun. The Court rejected the District’s “prohibition of handguns held and used for self-defense in the home.”

Immediately after the 2008 decision, the city council of the District enacted the Firearms Registration Amendment Act of 2008. Dick Heller filed another lawsuit challenging that Act, claiming it violated the Second Amendment, too. In response to the lawsuit and a decision by the appellate court, the city council in 2012 revised the Act to get rid of some of the conditions for registration, such as a requirement that all pistols be submitted for ballistic identification.

Heller then amended his lawsuit to challenge the remaining restrictions on gun owners that the District had left in place. The federal district court upheld all of these restrictions last year as “constitutionally permissible” efforts “to combat gun violence and promote public safety.”

However, the appellate court disagreed on Sept. 18.

It applied “intermediate scrutiny” to the D.C. gun law. To survive a challenge under intermediate scrutiny, the law must first promote “a substantial governmental interest that would be achieved less effectively absent the regulation.” And second, the means chosen by the law must be “not substantially broader than necessary to achieve that interest.”

The Court of Appeals upheld D.C.’s basic registration requirement, which requires applicants to provide identification and other information, as well as pay fees to register. This is a “de minimis” requirement that is “similar to other common registration or licensing schemes, such as those for voting or for driving a car, that cannot reasonably be considered onerous.” De minimis requirements do “not implicate the second amendment right”, according to the court.

Further, D.C.’s requirement that gun registrants provide photographs and fingerprints “will directly and materially advance public safety by preventing at least some ineligible individuals from obtaining weapons and, more importantly, by facilitating identification of the owner of a registered firearm during any subsequent encounter with the police.” Thus, this requirement is constitutional.

On the other hand, the appellate court threw out the requirement that an individual submitting a gun registration to the D.C. metropolitan police department bring the gun with him. The court summarily dismissed D.C.’s claim that this would enhance public safety:


On the contrary, common sense suggests than bringing firearms to the MPD would more likely be a threat to public safety; as Heller maintains, there is a “risk that the gun may be stolen en route or that the [would-be registrant] may be arrested or even shot by a police officer seeing a ‘man with a gun’ (or a gun case).”

The appellate court also threw out D.C.’s requirement that gun owners reregister their guns every three years. None of the so-called “public safety” reasons the city put forward for this requirement made any sense; for example, the city claimed that this would maintain the accuracy of its registration list, including if a gun has been lost or stolen. But the city already requires gun owners to update their registration information, such as a change of address. And gun registrants are required to “immediately” notify the city if their gun is lost or stolen.

The court did uphold the city’s requirement that gun owners take a one-hour firearms safety course. However, the court threw out a requirement that gun owners be tested on their knowledge of the District’s gun laws. While one can conclude that a gun safety course will promote “public safety by reducing accidents involving firearms,” there is no evidence “that passing a test of knowledge about local gun laws does so.”

Finally, the court struck down the District’s “only-one-pistol-per-month” rule. The city council banned the registration of “more than one pistol per registrant during any 30-day period,” claiming it would reduce gun trafficking and “promote gun safety by limiting the number of guns in circulation.”

The court was dismissive of the “experts” the city presented on this issue, saying that the “experts’ conclusion that limiting gun registration would likewise reduce trafficking is, however, unsupported by the evidence.” In fact, “the suggestion that a gun trafficker would bring fewer guns into the District because he could not register more than one per month there lacks the support of experience and of common sense.”

The argument that limiting the guns in circulation would limit accidents or gun misuse did not help the city either. That theory, “taken to its logical conclusion,” would “justify a total ban on firearms kept at home.” And that is obviously unconstitutional.

For seven years the District of Columbia has spent an enormous amount of time and resources trying to either deny the Second Amendment rights of its residents outright or make it difficult for them to exercise those rights by enacting a bureaucratic maze of red tape. Imagine if it had spent those same resources on trying to protect its residents. Perhaps then D.C. wouldn’t be the crime-ridden battle zone it has been for far too long.

-Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation. Along with John Fund, he is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” (Encounter 2012) and “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).