Backup for Cavala on Gun Control from California's Leading Legal Expert

The reason for certain “pistols” being protected and others not is that muzzle loading horse pistols were a common weapon in Europe for several hundred years prior to 1791. However, horse pistols of that time had a barrel length in excess of 6 inches and an overall length in excess of 10 inches. This information was gleaned from several court decisions as well as a “Google” search. That is why the North Carolina Supreme Court in State v. Kerner, 107 S.E. 222 (NC 1921) - cited in many opinions – observed that “(I)t is also but a reasonable regulation, and one which has been adopted in some of the states, to require that a pistol shall not be under a certain length, which if reasonable will prevent the use of pistols of small size which are not borne as arms but which are easily and ordinarily carried concealed. To exclude all pistols, however, is not a regulation, but a prohibition, of arms which come under the designation of "arms" which the people are entitled to bear.”

Secondly, as to National Firearms Act weapons – with particular focus on sawed-off or short-barreled rifles and shotguns, there is no question that these are not considered “protected arms”. One only need read the opinion of Judge Irving Lang in People v. Cortez, 442 N.Y.S.2d 873 (N.Y. Sup. 1981), discussing the history of the regulation thereof, to understand that it’s very clear that these are not “arms”. The NRA in fact provided an expert witness in Cortez.

The same can be said of machineguns – although they are not considered protected as being allowed in private hands for the same reason that WMD’s are not: the Common Law limited certain very lethal weapons to being in the exclusive hands of the state to avoid the defacto creation of private armies. The NRA in fact provided an expert witness on the matter at hand.

Finally, as to letters of marque and reprisal, the Constitution deals with that by expressly giving that authority solely to Congress – precisely to prevent a state within a state or others from starting conflicts or rebellions. As noted at www.wilkepedia.com:

“‘Letters of Marque and Reprisal’ was an official warrant or commission from a national government authorizing the designated agent to search, seize, or destroy specified assets or personnel belonging to a party which had committed some offense under the laws of nations against the assets or citizens of the issuing nation, and was usually used to authorize private parties to raid and capture merchant shipping of an enemy nation.

“The formal statement of the warrant was to authorize the agent to pass beyond the borders of the nation (‘marque’, meaning frontier), and there to search, seize, or destroy assets or personnel of the hostile foreign party (‘reprisal’), not necessarily a nation, to a degree and in a way that was proportional to the original offense. It was considered a retaliatory measure short of a full declaration of war, and by maintaining a rough proportionality, was intended to justify the action to other nations, who might otherwise consider it an act of war or piracy. As with a domestic search, arrest, seizure, or death warrant, to be considered lawful it had to have a certain degree of specificity, to ensure that the agent did not exceed his authority and the intent of the issuing authority.”

However, lost in all these discussions and the most intriguing issue is the effect of Judge Silberman’s opinion vis-a-vis persons who wish to acquire and possess registered handguns within DC. As noted by others, the 6 Cato plaintiffs sought injunctive relief to overturn DC local legislation which generally bars the registration of handguns (with an exception for retired D.C. police officers); which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device. 4 plaintiffs wanted to possess handguns in their respective homes for self-defense; one owned a registered shotgun, but wished to keep it assembled and unhindered by a trigger lock or similar device. Finally, one plaintiff (Heller) who is a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, wished to possess one at his home. That person applied for and was denied a registration certificate to own a handgun based on DC local law.

Four of the Plaintiffs in fact sought permission to register handguns (only one of whom (Heller) actually had a handgun). The Court of Appeal held that Heller – the special officer - did have standing to sue over the DC gun laws as to registration and possession of handguns and the shotgun owning plaintiff had standing as to the lock requirements. The reason handgun registration was barred was that DC did not allow handguns to be registered and thus be legal. Without standing, no case or controversy and hence no decision on the merits. As such, of the 6 plaintiffs, the decision on the merits applies initially as to those two individuals.

The Silberman opinion had three components. Heller and the shotgun plaintiff did not need to keep the guns locked and dis-assembled while at home – which is the greatest form of relief. Two, registered handgun owners did not need a special carry license to move the registered handguns around – they could move it from room-to-room as DC local law does not regulate carrying of rifles or shotguns on private property as such. And, Heller could register his service weapon as a personal weapon. Thus, the opinion by Judge Silberman has very limited application. The immediate effect is that registered gun owners can take the locks off their weapons at home and handgun registrants can carry their registered handguns on their private property without a discrete carry licenses. That does not require judicial supervision. While this is of benefit to those persons, it is not wide ranging relief.

Where the opinion will require continuing judicial supervision – in fact the appointment of a special master on remand is on the process of registering handguns in the District. That is the real issue and one that has received scant attention. The Silberman opinion did not wipe out registration – in fact it ordered it. That raises the issue of who can acquire and register handguns in accordance with the Court opinion.

The United States Department of Justice – while endorsing an individual view - has taken the position that all current federal firearms laws enacted by Congress are consistent with the Second Amendment. The District of Columbia for Gun Control Act purposes is considered a state (18 USC 921(a)(2)). That means that the federal rules regulating transactions between residents of different states apply. That means as to handguns that DC residents cannot outside the district, acquire handguns and bring them back into the district. Also, non DC residents cannot transfer guns to DC residents unless the transaction is brokered through a federal firearms licensee (FFL) who is licensed by BATF to operate within DC. I am told that there are no DC licensed gun shops as such. That being the case, persons who possess handguns in the District who could take advantage of the opinion is quite limited if not non existent – as noted below. It is important to note that Silberman’s ruling did not wipe out the registration provisions – in fact that was the relief requested. Rather, it wiped out the bar to registering (and thus legally having) guns. There will not be a rush to buy guns because there are no legal outlets – as of today – in the District.

Therefore, as I see it, there are three – and only three - discrete groups of people who can possibly benefit from the ruling in terms of the registration aspects:

• Category 1: Those persons who acquired guns (and thus possess them) in violation of the Gun Control Act but are not “prohibited possessors” or acquired them from DC residents within DC. Assuming that the time to prosecute those who violated GCA under GCA has elapsed, they may have the possibility to register the same. Indeed, Marion Barry who is now a DC City Councilman has proposed a local law to open the grace period for present possessors to register their handguns. This type of grace period was part of the response of Congress to Haynes v. United States, 390 U.S. 85 (1968). As Dr. Cavala noted in his blog, Haynes struck down parts of NFA based on self-incrimination grounds. NFA was rewritten to comply with the Court’s decision and upheld in United States v. Freed, 401 U.S. 601 (1971). The 1968 revision to NFA had 3 components: (i) all possessors of NFA weapons were given a 6 month grace period to legally register their NFA covered weapons; (ii) a system was created so that persons could only acquire NFA covered weapons (present or future) from a pool of registered weapons; and (iii) only transferors (who were licensed or registered owners) of NFA weapons could transfer these weapons under procedures that involved very minimal acts by transferees.

• Category 2: Persons who moved into DC with guns acquired outside DC who move in with guns as their personal property. I am told that persons who fall into this category are primarily persons associated with government, be it political appointees, Senators, Members of the House of Representatives, federal judges, congressional staffers, or lobbyists. They can request registration certificates.

• Category 3: Persons who reside in DC who wish to acquire registered handguns from persons which are already registered to someone else who currently resides within the District. While I do not know the number of registered handguns within the District, given that the universe of handguns applies solely to handguns registered prior to September of 1976, this present legal pool is probably quite small.

It is therefore likely that should Silberman’s decision stand – whether because the US Supreme Court affirms or it is not heard by the DC Circuit En Banc or by the United States Supreme Court - Judge Sullivan who was the District Court Judge who heard the case will have to appoint a special master to oversee implementation of the Silberman ruling – just as there is a special master now for the California State Prison Health Care system.

A master in conjunction with the Plaintiff’s lawyer and CC’s lawyers may require changes to current DC laws to allow registration to occur. However, barring the opening of new gun stores in the District – and that requires the approval of the federal government, legal firearm ownership in the District will be limited. At the same time, all sorts of regulations that the National Rifle Association has opposed in the past will be approved by a Court decision affirming an individual right to keep and bear garden variety firearms.

It has been suggested that present possessors who have no other disqualifying criteria can avoid prosecution because the registration requirement was wiped out. That suggestion is false because the Plaintiff’s sought to acquire and possess registered guns. It was not registration that was wiped out – rather it was the inability to register that was wiped out. Given that compliance is now possible – and I believe there is defacto use immunity – assuming that the Special Master cerates such procedures to implement the Court’s ruling, the law can be enforced against illegal possessors. I should add that almost cases where police officers come into contact with persons possessing unregistered handguns are cases where persons are also “packing in public”. As Judge Silberman noted, the discrete DC prohibition on carrying a pistol in public (D.C. Code § 22-4504) unless exempt is in full force and effect. A part of the statute is of course nullified by the Court’s ruling but that applies to carrying on one’s own property.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.