Posted by Eugene Volokh:
D.C. Circuit Rejects Second Amendment Plaintiff's Motion to Immediately Enjoin
Operation of D.C. Rifle/Shotgun Restrictions:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190912263
Appellants� contention is that appellees� petition for certiorari
concedes the unconstitutionality of D.C. Code Section 7-2507.02 as
it requires the disassembling of shotguns and rifles or the
placement of trigger locks, making such arms practically useless
for self defense. Therefore, appellants argue, our mandate holding
this provision unconstitutional should issue. But our opinion does
not specifically address the constitutionality of that statute as
it applies to shotguns and rifles because the only plaintiff we
concluded had standing under our precedent was Dick Heller, who
complained solely about the restrictions on ownership and use of a
handgun. Parker, 478 F.3d 370, 373-76 (D.C. Cir. 2007). At least
one other plaintiff (Gillian St. Lawrence) did address Section
7-2507.02 as it applied to shotguns but she did not have the same
injury as Heller -� the denial of a license. Id. To be sure, as our
opinion suggested, the Supreme Court may well disagree with
Seegars, 396 F.3d 1248 (D.C. Cir. 2005), and conclude that all the
plaintiffs have standing.
In any event, the District�s petition for certiorari makes an
alternative argument not presented in our court -� that the
District�s ban on handguns can be justified so long as rifles and
shotguns can be utilized in the home for self protection. The
Supreme Court, if it should reach that argument -� and conclude it
was constitutional to ban handguns in the home if long guns were
permitted -� would necessarily be obliged to consider the impact of
Section 7-2507.02, since a disassembly or trigger lock requirement
might render a shotgun or rifle virtually useless to face an
unexpected threat.[3]
[Footnote 3:] The District of Columbia Council never contemplated
the specific use of a rifle or shotgun in that situation. Had the
Council contemplated such, it would, perforce, have had to consider
the danger posed by a rifle�s range and a shotgun�s pellet spread,
as well as the difficulty one would have handling such long weapons
in enclosed spaces -� particularly by smaller individuals.
Appellees� brief at 17 did suggest that any gun (including a
pre-1976 legal handgun) might be used in self defense in a �true
emergency,� otherwise described as �genuine imminent danger.� But
the Code does not allow for such, nor did the District ever specify
how one would define the circumstances under which one could
assemble or unlock a rifle or shotgun to face a �true emergency�
(professionals might well be amused at such a hypothetical). The
truth is that neither the Code nor the District, in this
litigation, ever suggested that a rifle or shotgun, as opposed to a
handgun, could be legally employed in self defense.
Judge Henderson, who dissented from the invalidation of the handgun
ban, concurred in the denial of the motion, but did not join the rest
of the order.
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