Shotgun News, March 1, 2009, pp. 20-22

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Post-Heller Victories

There were some whiners after the Supreme Court handed down the decision in D.C. v. Heller (2008) that it wasn’t much of a victory. The biggest complaint was that Justice Scalia’s opinion acknowledged that some gun regulations were Constitutional, such as felon in possession laws. Some were unhappy that Scalia argued that guns that were not in common civilian use (such as machine guns) might not be protected by the Second Amendment. I wasn’t entirely happy with how Scalia phrased parts of the decision, but while I would have preferred to get at least half a loaf, even three slices is better than nothing—and nothing is what the Supreme Court had given us before.

One of the warnings from the gun control crowd was that if the Supreme Court ruled that the Second Amendment protected an individual right, it would produce a flurry of suits to overturn all sorts of perfectly reasonable gun control laws. And of course, they were right. Around the country, criminal defense attorneys (often public defenders) filed motions arguing that because Heller had found that the Second Amendment protected an individual right, therefore laws that made it illegal for convicted felons to possess guns were therefore unconstitutional.

Federal judges have overwhelmingly pointed to the Heller opinion’s statements in support of laws prohibiting felons in possession, and disposed of these cases very quickly.¹ Similarly, a person in possession of unregistered machine guns sought to use Heller as a basis for challenging the federal machine gun law—and the district judge pointed to Scalia’s opinion to uphold the existing regulations.²

But along with these cases, we have a number of other encouraging signs of how the Heller decision is changing the legal landscape. The civil suit Lund v. Salt Lake City Corp. involves a man named Lund, who was in a city park. Someone called in what turned out to be a false report that Lund was carrying a gun, and had threatened someone with it. Salt Lake City police officers arrived on the scene, and saw no gun. Lund wasn’t doing anything more frightening than feeding ducks. The officers threatened to shoot Lund if he didn’t raise his hands above his head, and then, in arresting him, injured him badly enough to require surgery. They had no basis for threatening deadly force against an unarmed man who was simply feeding ducks. The federal judge reminded the police that even if Lund had been armed, this was not sufficient reason to threaten to shoot him: “By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution” and cited Heller.³

You may recall that the San Francisco Housing Authority last year informed all tenants in public housing that they would no longer be allowed to have guns in their homes: “Residents and their guests may not possess or store a firearm, BB gun, air gun, paintball gun, pellet gun or any other item that discharges ammunition, bullets, etc. Water guns are prohibited. Anything that looks like a gun or a weapon is prohibited. Use of any item as an imitation weapon is strictly prohibited. Use of any item including but not limited to knives, blades, swords, pipes, bats, sticks, batons, chains, tools, rocks and guns as a weapon or the threat of a weapon is strictly prohibited. Violation of this lease provision is grounds for immediate eviction.”⁴ Yes, you read that correctly. Not only did they prohibit firearms, air guns, BB guns, and paintball guns, but they even prohibited water guns.

An acquaintance who helped research my last book, Armed America, lives in San Francisco public housing, and with the NRA’s help, and California gun rights attorney Chuck Michel, he filed suit against this outrageous rule. Now, San Francisco is not afraid to waste vast quantities of money fighting for clearly unlawful policies. They fought all the way to the California Supreme Court defending Proposition H, an initiative that banned possession of handguns in San Francisco. Proposition H was an expensive measure to defend, especially because it was clearly in violation of existing state law.

But that was before Heller. In the case of this public housing ban, the city caved in, and agreed to abandon the rule. “In papers filed Monday with a federal judge, the Housing Authority agreed not to enforce a provision it added to tenant leases in 2005 prohibiting the possession of guns and ammunition. The ban will now apply only to illegal gun ownership, like possession of a machine gun or possession of a firearm by a convicted felon.” As the San Francisco Chronicle article went on to point out: “The National Rifle Association filed the suit on behalf of an unidentified San Francisco tenant a day after the Supreme Court's June 2008 ruling that declared the Constitution's Second Amendment gave Americans the right to possess guns for self-defense.” And the city’s attorney now says that they never intended to enforce this ban: “Tim Larsen, a lawyer for the Housing Authority, said Tuesday the agency never intended to enforce its 2005 ban against law-abiding gun owners and has never done so, even though the lease provision covered legal as well as illegal weapons.”⁵ Yeah, right. And I presume that they were only going to enforce the water gun ban against criminals, too!

Why did San Francisco settle before this went to court? I suspect that at least partly it was because their attorneys looked at the Heller decision, saw the parallels between D.C.’s handgun ban and this public housing gun ban, and said, “Gee, the courts might rule that the Second Amendment applies to state and local governments, too.” As I mentioned in the last column, we have several lawsuits under way around the country right now that are trying to do exactly that: have the federal courts recognize that the Fourteenth Amendment imposes the rights of the Second Amendment onto state and local governments. We have already seen a number of city handgun bans in Illinois repealed because the city governments decided that the risk of losing were too high.

So where does President Obama come into the picture? To my surprise and pleasure, Obama’s Cabinet appointments so far suggest that Obama played the hard left of American politics—the billionaire wing of the Democratic Party—like a fiddle. They gave hundreds of millions of dollars to Obama’s campaign—and yet on foreign policy, national security, and on tax policy, Obama is giving indications that he is not going to be much farther to the left than John McCain. As more than a few people have noticed, “It’s almost like McCain won the election.” The whining from the hard left is quite amusing at the moment.

Unfortunately, Obama’s selection of Eric Holder as Attorney-General suggests that while Obama is planning to govern from the center, or perhaps center-left, on many issues, he may be planning to throw a bone to the gun control nuts. But even Holder is admitting that there are limits to what the government can do about gun control, because of Heller. “Attorney General-designate Eric Holder conceded during his confirmation hearing Thursday that the government's options for regulating the possession of firearms have been narrowed in the wake of the Supreme Court's 2008 ruling that the Second Amendment ensures an individual right to bear arms.

“’Reasonable restrictions are still possible,’ Holder said, including measures such as a ban on the sale of what are called ‘cop-killer’ bullets.

“But, he granted, ‘we're living in a different world’ since the high court's 5-4 ruling in District of Columbia v. Heller.”⁶

Of course, handgun ammunition that penetrates police soft body armor is already illegal. Perhaps Holder plans to go after rifle ammunition instead—just about all of which will penetrate police soft body armor.

I expect that Obama and Holder will pursue efforts to close the so-called gun show loophole (which is really the private party sale loophole). As I mentioned in a previous column, we now have studies done by scholars who support gun control admitting that they can’t find any evidence that gun show sales increase murder rates.

I expect that Obama and Holder will attempt to get some sort of assault weapon ban passed—and they will try to argue that like machine guns, these aren’t “commonly owned” by civilians. But Obama’s election alone has pretty well demolished that argument. As Jim Shepherd of Outdoor Wire Web points out, Obama is the gun salesman of the year. According to Shepherd, “gun manufacturers are months behind on orders for semi-automatic pistols, AR-style rifles, and anything with so-called 'high-capacity magazines.'” Instant background checks for firearms increased 24% over 2007, and because of a shortage of Form 4473s (the yellow form used for firearms transfers), BATF authorized dealers to photocopy the forms, instead of waiting for BATF to get more printed.⁷ Something tells me that by any objective measure, Obama’s election may have made assault weapons so common that the courts may decide that they are protected by the Second Amendment.

Perhaps Holder’s talk about “cop killer bullets” is just playing to the gun control crowd. He might find that the gun control option is now sufficiently restricted by Heller that he needs to put the energy of the Department of Justice into felon in possession cases. If so, Heller will turn out to be a big win for our side.

Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006), is available in bookstores. His web site is http://www.claytoncramer.com.