By Robert M. Hausman
A federal appeals court in Washington has struck down, on Second Amendment grounds, the gun control law in the District of Columbia that bars residents from keeping handguns in their homes. It is possible that the decision will result in District residents being able to purchase handguns once again, as they have been barred from doing so since 1976.
The decision is particularly significant as the court relied on a constitutional interpretation that has been rejected by nine federal appeals courts around the nation. The decision was the first from a federal appeals court to hold a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias.
Lawyers on both sides of the case said the decision had created a conflict among the federal courts of appeals on a significant constitutional issue, making review by the Supreme Court more likely if an appeal is filed to that court.
The case was brought by Dick Heller, a police officer in the District who was permitted to carry a gun on duty and wanted to keep one at home. His application was denied.
He challenged provisions of the District’s law that barred the registration of handguns, that prohibited carrying handguns without a license even from one room of a private home to another, and that required lawfullyowned firearms to be kept unloaded and disassembled or bound by a trigger lock.
In a 2-to-1 decision, a panel of the court, the United States Court of Appeals for the District of Columbia Circuit, ruled those provisions unconstitutional. The Second Amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
The basic question in the case was whether the first clause limits the second one.
Most federal appeals courts have said that the amendment, read as a whole, protects only a collective right of the states to maintain militias – in modern terms, the National Guard. But in the latest decision, the majority focused on the second clause, saying that the amendment broadly protects the rights of individuals to own guns – an approach that has been embraced by the Justice Department and by some constitutional scholars.
In the 2-1 decision, the judges held that the activities protected by the Second Amendment “are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia.”
“The District’s definition of the militia is just too narrow,” Judge Laurence Silberman wrote for the majority. “There are too many instances of ‘bear arms’ indicating private use to conclude that the drafters intended only a military sense.”
In his ruling, Judge Silberman wrote, “In sum, the phrase ‘the right of the people,’ when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.”
Judge Silberman’s ruling notes that the Second Amendment “acknowledges… a right that pre-existed the Constitution like ‘the freedom of speech’.”
“Because the right to arms existed prior to the formation of the new government,” Judge Silberman wrote, “the Second Amendment only guarantees that the right ‘shall not be infringed’.”
Silberman’s ruling also observed, “The right of self-preservation…was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government.”
Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state.
Lawyers for the District took the position that the phrase “a well-regulated Militia” applies only to the organized militias of the founding era-institutions that are no longer in existence today – invocation of the Second Amendment right today is thus conditioned upon participation in a now non-existing militia. Continuing this line of thought, at oral argument, counsel for the District also argued it would be constitutional for the District to ban all firearms outright.
The court also held that the District’s requirement that handguns be kept disassembled in the home or equipped with a trigger lock to prevent their eminent use, like the ban on carrying firearms within the home, to be an unconstitutional bar to the use of firearms for selfdefense.
The ruling is the second time a federal circuit court has upheld the individual nature of the Second Amendment in recent years. In 2001, the Fifth Circuit Court of Appeals unanimously found in the case of U.S. v. Emerson that, “All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.”
Second Amendment supporters on Capitol Hill introduced H.R. 1399 – the “District of Columbia Personal Protection Act.” This legislation, by Representatives Mike Ross (D-Ark.) and Mark Souder (R-Ind.), seeks to restore the constitutionally-guaranteed Second Amendment rights of the residents of the District of Columbia. A similar bill has been introduced in the U.S. Senate.
ATF Revokes Dealer FFLs in Calif., Georgia & Idaho
Red’s Trading Post in Twin Falls, one of Idaho’s oldest gun shops, has had its FFL revoked by the Bureau of Alcohol, Tobacco, Firearms & Explosives after an ATF audit found Red’s employees sold guns improperly numerous times between 1999 and 2004. It is one of three dealers recently targeted by ATF.
Red’s manager, Ryan Horsley, admits employees did not always check to ensure customers completely filled out 4473 forms, did not run a buyer background check on at least one occasion, failed to log multiple handgun sales to the same customer in five working days, did not always keep track of guns returned to manufacturers, threw away denied gun application forms, and failed to post ATFrequired gun safety signs and pamphlets.
ATF revoked Red’s license March 5, shutting down 90% of the income that has sustained the store through three family generations. ATF reportedly gave the shop permission to sell the 1,000 guns remaining in its inventory. The five-year audit found violations over a period in which 10,000 guns were sold, Horsley said.
“Mistakes happen. Stuff happens,” Horsley said. “I think it’s unreal expecting to have 100 percent non errors.”
Case Hinges on Definition of ‘Willful’
Red’s has paid $20,000 in legal fees protesting the ATF’s decision. On Feb. 23, Red’s legal team filed a petition in federal court in Boise. The judicial review will consider, among other things, whether Red’s “willfully” violated the law.
“Not ‘willful’ is one of their petitions,” said Deborah Ferguson, assistant U.S. attorney, representing ATF. “Willful has been defined by case law. I would expect the court to look at that legal authority.” Case law defines “willful,” an essential component of the allegations, as “they knew of the regulations and did not abide by them,” Ferguson said.
Horsley said Red’s was found responsible of several violations in an earlier audit. But he said the infractions are petty and do not justify a revoked license. “There’s no missing guns,” he said. “There are errors but everyone has errors.”
Walt Sinclair, a Boise co-counsel for Red’s, said the errors were clerical, not intentional. He added ATF also revoked the FFL of Blue Lakes Sporting Goods in the recent past. “They had been there forever. It was a family business. It was a real success story, but this type of petty, technical noncompliance caused them to end up going out of business.”
In California, ATF has seized 3,300 firearms and 1.6 million rounds of ammunition from dealers in Compton and Oak View, California and two employees have been arrested in ATF actions against Boulevard Sales & Service.
The arrests came amid federal charges that they sold firearms and ammunition to straw buyers who were buying on behalf of prohibited persons. According to an affidavit filed in the case, confidential informants with prior felony convictions and undercover officers posing as straw buyers for these informants, were able to buy 14 firearms from the dealership. The informants were also able to purchase ammunition. According to the affidavit, sales were made by the two employees despite that they were told that the informants were convicted felons.
Georgia Dealer Arrested Marc Eric McDaniel owner of McDaniels Firearms in Waycross, Georgia is charged in a 70-count indictment with violating federal firearms laws after an ATF investigation.
McDaniels is accused of receiving, transferring and selling firearms without keeping required records and knowingly failing to conduct mandatory criminal history checks prior to selling firearms. He is also charged with assisting in the transfer of a firearm to a prohibited person.
Ted Szabo, of Para-Ordnance
Attila “Ted” Szabo, the innovative president of Para-Ordnance Mfg. Inc., of Canada, passed away on Wednesday March 28, 2007 at the age of 60. Szabo, an engineer and designer, founded the company in 1985 with his friend, Thanos Polyzos.
From its inception, the company displayed an innovative capacity that has characterized its products ever since. Their first offering, introduced in 1987, was an all-plastic, selective-fire paint ball gun called the Model 85 “Dye Marking Tactical Machine Pistol.” In full-auto mode, this unique pistol fired at a rate of 1,200 rounds per minute, and was designed as a close quarters combat training device for law enforcement and military personnel.
In 1988, Para-Ordnance introduced an innovation which Szabo had dreamt about since his college days: a high-capacity frame and magazine for Model 1911 pistols. This solved the classic handgunners’ dilemma: choosing between the superior stopping power of the .45 ACP cartridge and the impressive magazine capacity and firepower of the 9mm Parabellum.
In 1990 the Para P14 .45 ACP pistol was introduced with double the magazine capacity of a standard 1911. Szabo then began working on the pistol’s trigger system to develop an easier, smoother double-action trigger – the result was the light double-action (LDA) trigger system. Para’s patented Power Extractor with its 50% larger claw that produces controlled feeding and positive extraction of the empty case came next.
There are other Szabo designs that have not yet been released and the company says it will continue development of these innovations in forthcoming pistol models.
Despite all of the regulation, including a 10-day waiting period on firearms sales, the California market is still believed to be lucrative. The state’s approximately 1,450 firearms dealers sell about 1,000 firearms a day, according to the state’s Dept. of Justice. U.S. Postal Service Mail sent to ATF headquarters in Washington, D.C. is still put through a screening process to detect Anthrax and other threats. This delays receipt of the mail and sometimes the process results in making the paper in the envelope almost unreadable, according to a highly placed source.
Other mail to ATF, such as license renewal forms, go to a different addressand no problems have been reported. The President intends to nominate Michael J. Sullivan, of Massachusetts, to be Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives at the Department of Justice. The nomination would then have to be confirmed by the Senate. Sullivan currently serves as United States Attorney for the District of Massachusetts. Additionally, in September of 2006, Sullivan was designated Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Prior to his Federal service, he served as District Attorney of Plymouth County in Massachusetts. Earlier in his career, he served in the Massachusetts State House of Representatives. Sullivan received his bachelor’s degree from Boston College and his JD from Suffolk University.
Sullivan addressed attendees at the FAIR Trade Group annual meeting at the 2007 SHOT Show. Sullivan reportedly said that if he is confirmed as ATF Director, he would work with industry as he said he understood the businessman’s concerns.
ATF Firearms Testing Act Reintroduced
U.S. Congressman Phil Gingrey (RGA) has re-introduced H.R. 1791, the Fairness in Firearms Testing Act. This legislation would require ATF to video tape its firearms testing procedures (such as when determining whether or not a firearm can be made to fire in the full-auto mode). A copy of the video would have to be provided to manufacturers or defendants in a criminal prosecution upon request. Video documentation would give firearm manufactures the right to contest and review ATF testing decisions, which Gingrey called “highly inconsistent.”
“Currently, ATF lacks written procedures and clear guidelines for firearm testing,” Gingrey said. “How can we expect firearm manufacturers – or any industry, for that matter – to comply with moving target regulations? The Bureau’s rulings are so inconsistent that ATF threatened to prosecute one gun manufacturer in Heard County, Georgia not even a year after sending written approval for that company’s product.. This runaround is a waste of time and resources. My legislation will help restore accountability to the ATF testing process and help restore the words ‘made in America’ to our firearms,” Gingrey declared.
“H.R. 1791 is a step toward the goal of formal, written firearm testing guidelines, and helps ensure a level playing ground for both ATF agents and manufacturers,” Gingrey concluded.
The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. He also offers FFLmailing lists to firms interested in direct marketing efforts to the industry. He may be reached at: FirearmsB@aol.com.
|This article first appeared in Small Arms Review V10N10 (July 2007)|