Last week, in Heller v District of Columbia (“Heller II”), the United States Court of Appeals for the District of Columbia (“Court”) ruled that the Second Amendment did not prevent the District from banning “assault weapons” and firearms with a magazine capacity of over ten rounds. Assault weapons were defined by the District according to their make/model and according to various physical characteristics such as “pistol grips.” The Court also found that the District’s handgun registration requirements did not run afoul of the Second Amendment, but remanded on “long gun” registration requirements.
The Court adopted the “two step” approach favored by other lower courts which have addressed Second Amendment issues post Heller. Under this approach, the court determines whether a challenged law “impinges upon a right protected by the Second Amendment.” If the answer to that question is yes, the court will move on to the second step which is determining whether the challenged law passes constitutional scrutiny. The Court also followed other lower courts in applying intermediate scrutiny.
Importantly, the Court stated that “assault weapons” are in common use under Heller due mainly to high ownership numbers. However, the Court stopped short of holding that “assault weapons” are protected by the Second Amendment because no evidence was presented which stated they were in common use for hunting and self defense. Curiously, the Court avoided the issue by skipping to the second step by applying intermediate scrutiny. It found that the “assault weapons” ban survived intermediate scrutiny based on “a substantial relationship between the prohibition…and objectives of protecting police officers and controlling crime.” There was also a vigorous dissent. The opinion and dissent can be found here.
As a practical matter, this case is not blockbuster by any means. It is one of many battles in the attempt to clear up some of the ambiguities left in the wake of the Heller and McDonald decisions. There will surely be many more to come. Under this case, firearms owners should try to establish both the numerical “common use” of a particular firearm and that weapon’s “common use” for lawful purposes. This will be difficult, if not impossible, to establish for Second Amendment supporters and detractors alike given the lack of empirical data and the difficulty of proving what people are using their guns for.