by Stephen P. Halbrook

In District of Columbia v. Heller, the Supreme Court held the District of Columbia’s handgun ban to violate the Second Amendment, which provides that “the right of the people to keep and bear -arms, shall not be infringed.” Prior District law required the registration of long guns (i.e., rifles and shotguns). The District responded to Heller by making registration of all firearms more restrictive than ever before.

Shortly thereafter, and continuing through the present, the District’s firearm registration laws have been subject to an ongoing challenge. The first named plaintiff was the same Dick Heller as in the Supreme Court case; he was joined by Absalom Jordan (a plaintiff in prior challenges) and others. The District Court rendered summary judgment in favor of the District, and the plaintiffs appealed.

In 2011, the D.C. Circuit’s 2–1 opinion in Heller v. District of Columbia (Heller II) upheld basic registration requirements, but “only as applied to handguns. With respect to long guns they are novel, not historic.” Those provisions as applied to long guns were remanded for further proceedings.

The appellate court further found that the following provisions were not longstanding and remanded them for further proceedings: a ballistics-identification requirement for handguns; a prohibition on registering more than one pistol per thirty days; the requirements that applicants appear in person to register, and that they re-register each firearm every three years; and the requirements that an applicant demonstrate knowledge about firearms, be fingerprinted and photographed, take a firearms training or safety course, meet a vision requirement, and submit to a background check every six years.

The court stated that all of the above requirements and all requirements as applied to long guns “also affect the Second Amendment right because they are not de minimis [and] make it considerably more difficult for a person lawfully to acquire and keep a firearm,” and thus “impinge upon that right.” The case was remanded to allow the District another chance to prove its case.

Dissenting, Judge Kavanaugh would have held the registration requirements void under the Second Amendment. He would have decided the case based on text, history, and tradition, or alternatively on the basis of strict scrutiny, rather than what he considered the balancing test of intermediate scrutiny adopted by the majority.

After the case was remanded, the District passed further amendments, resulting in the 2012 Firearms Amendment Act. At the time of this writing, cross motions for summary judgment are pending before the district court on the Act’s validity under the Second Amendment. Since it is reasonable to assume that litigation through the appellate level will continue for some time, and that a definitive resolution of the issues is not in the cards for the near future, it is appropriate now to articulate and analyze, based on the Heller II majority’s ruling, the Second Amendment issues arising from the District’s firearm registration system.

Before launching into the issues of Heller II, a word about the subject of firearm registration is in order. As detailed in this author’s article in the 1995 Second Amendment Symposium issue of the Tennessee Law Review, Congress has historically rejected legislation to register common firearms. Besides rejecting bills to register handguns in the National Firearms Act of 1934 and the Gun Control Act of 1968, Congress explicitly prohibited registration in the Property Requisition Act of 1941, the Firearms Owners’ Protection Act of 1986, and the Brady Act of 1993. It is no secret that, while not inevitable, registration facilitates confiscation, and that it has occurred in some of the darkest pages of history.

A committee report in support of the legislation at issue states, “Hawaii and the District are the only states [sic] that require all firearms to be registered.” While the committee’s inclusion of the District as a “state” was perhaps wishful thinking, this statement demonstrates the unusual nature of universal firearm registration at the state level.


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