Heller Week Two – The Conundrums Continue on Guns

Because the District has not had to deal with this issue for 32 years, essentially none of the procedures are automated. As such, DCMPD Chief Cathy Lanier acknowledged on WTOP Radio that the District was in a state of flux. What DC is going through is just the tip of the iceberg.

The District should take a cue from what is happening in Clark County, Nevada. I assisted in the enactment in 2007 of the so-called Lee Law, I am intimate with Clark County, Nevada (Vegas) registration procedures. Clark County for all practical purposes is Nevada and has had a handgun registration process since 1965. Clark County has a population of at least 1.9 million people – and it has moved slightly because of the sub-prime meltdown but it has a very large population with high rates of legal gun ownership.

There are two ways to register a handgun in Clark County. The first way is if it is a Clark County dealer transaction. The dealer does the NICS check, if the person is not already registered owner, 3 day wait, if he already owns a registered gun, now wait, the dealer then issues the Blue Card when the gun is picked up and sends the information into Metro via a email system so everything is legitimate.

The second – and the only other way - that guns are registered is that the recipient/owner (new resident) of the gun takes it into any Metro substation or local Clark County incorporated city police department. There are 13 places that you can go per www.lvmpd.org. They do the NICS check, check to see if the gun was reported lost or stolen, type in the information into the computer and issue the Blue Card. That process takes maybe 5 minutes and it’s free.

DC has a population of less than 600,000 people. It would seem to me that assuming that there are maybe 30,000 to 60,000 people who would become immediate registrants, how difficult is this going to be? Then again, you might find that the number of people could be half the population which shows how ineffective the DC handgun ban was. Also, there has to be a process to facilitate private party transactions between DC residents and new DC residents to register the guns. If this is not done ASAP, that will generate litigation.

For current possessors, I believe at the end of the day there will be a 90 day grace period, all police substations open from 8:00 a.m. to 10:p.m., weekends included, get all the stuff automated, do the NICS checks, print out the registration cards, and be done. The one thing I can assure you of is that DC does not want any more litigation.

However, while handguns will be registered, there is now a dispute as to the status of semiautomatic handguns. Fox News piece had quoting Rachel Parsons of the NRA pointing out that prior to the ban on handgun possession going into effect in 1976, semiautomatic handguns were registered. It is obvious that the NRA has investigated pre 1976 practice was in the pre-huge detachable magazine fad day) was to register the gun.

Support for this view comes in the form of a 1964 CA AG opinion on California and the observations of the Ohio Supreme Court in City of Cincinnati v. Baskin – which are relevant because they are contemporary in nature, it is very clear that semiautomatics were intended to be treated as “machineguns” only if the gun and the magazine were attached to each other or the magazine and the gun were under the immediate control of the same person. The aim of these laws was to address the BAR of the 1930’s – semis with huge clips. I checked with people in Ohio and that is how they enforce the Ohio law. This joint possession test is used in various states in various contexts.

Given that this involves Acts of Congress – and I do not think anyone has the desire to find out what “dangerous and unusual weapons” are in the words of Heller – save attorneys who make money off of this, I have told people I know in DC that they need to register all semis that are not treated as “destructive devices” under the National Firearms Act if one of two conditions are met.

The first situation where registration should be allowed is if the semi has a fixed magazine that as presented for registration cannot exceed 12 rounds. That basically ensures registration of all common auto-loading shotguns.

Registration should also be allowed if the semi is fed by a detachable magazine or a clip, the person as a condition of registration agrees not to have on the same premises as the gun a magazine in excess of 12 rounds.

In addition, DC cannot avoid the fact that simply allowing present possessors to “get legal” is not enough. It has to allow the creation of a regulated market in firearms whereby (given the Federal Gun Control Act) there are federal firearms licensees in DC. WTOP Radio in DC reported today that there are only six Federal Firearms Licensees in the District. WTOP contacted all six, and found only one is considering facilitating the transfers of handguns once the law changes.

Of the 6 FFL’s, two are prop houses, one is Josh Sugarmann of the Violence Policy Center, one FFL is held by the Bureau of Alcohol, Tobacco and Firearms, who is a FFL acting as a wholesaler (which is really a discrete subcategory of “dealer” which includes wholesalers and retailers) and one FFL (Mr. Sykes) who actually sells to security firms and line cops.

This leaves 2 FFLs’: Mr. Sykes and Josh Sugarmann.

Mr. Sykes has stated that he has no plans to open a store and instead will continue to do business in a non-descript office with no website, yellow pages listing, etc. But Mr. Sykes is being very coy stating that he does not say how much he will charge as a transfer agent. As WTOP noted, BATF is required by law to process applications within 60 days, but any gun store would have to be approved by the Chief of Police and meet all local zoning ordinances. According to a spokesperson for the BATF, there are no pending applications for new FFLs.

That leaves Josh Sugarmann under intense scrutiny on Josh Sugarmann. Mr. Sugarmann is not only vociferously “anti-gun” but he apparently is only one of two FFL dealer’s in DC. A number of gun rights advocacy groups bloggers are now posting his address with email demanding that given the preconditions in law to obtaining a FFL, Sugarmann should be forced to process transactions for DC residents.

As such, there is now support for DC - in order to comply with Heller – as part of the new DC regulations to mandate on Sykes and Sugarmann the California “must serve-fee capped-private party transactions rules” with various “public accommodation rule” requirements. Missouri in effect earlier this year followed California’s lead on this issue at the NRA’s behest.

Sugarmann now faces the real possibility that his FFL will be revoked. Just a few months ago, these same advocacy groups expressed alarm over the increase in FFL revocations by the Bush Administration. In the past, the NRA has kept its head down on this issue. That was then and this is now. WTOP said DC officials have every intention of allowing additional gun stores to open.

This is one example of the changing dynamics of Heller. I have no doubt that DC will play itself but it is fascinating how the screw is turning there.

Finally, as Bob Levy alluded to “safe transport” exemptions to allow people to actually take the guns into be registered have to be enacted.

In terms of other open issues, others have noted Heller did not address the issue of the standard of review for firearms regulations. In two law review articles Professor Adam Winkler of UCLA Law School (Winkler, The Reasonable Right to Bear Arms, 17 Stan. Law & Policy Rev. 597 (2006) & Winkler, Scrutinizing the Second Amendment, 105 Michigan Law Review 683-733 (2007)) has noted “strict scrutiny” was not the standard that had been applied at the state level. This is not surprising given that under “strict scrutiny” an across the board felon in possession ban would be invalid yet it was upheld in Heller.

In fact, in Bleiler v. Chief, Dover Police Department, 927 A.2d 1216, 1221-1223 (N.H. 2007), the New Hampshire Supreme Court noted that every court had rejected strict scrutiny for reviewing firearms regulations. Indeed this point was noted by Justice O’Connor of the Ohio Supreme Court in her concurrence-dissent in Klein v. Leis, 795 N.E.2d 633,640 (Ohio 2003) which argued for “intermediate scrutiny” – which I think a good argument could be made as being the proper standard.

Besides the shifting positions in DC, Heller also creates a major conundrum that the gun rights community would rather not face which is the issue of carrying in public. There was one point in the Heller opinion that troubled me and that was implying that you could have an all out ban on concealed weapons which in effect would imply that open carrying for specified uses was constitutionally mandated and which the New Hampshire Supreme Court noted in Bleiler.

As I read the Heller opinion, banning open or concealed carrying in public is allowed provided that there was either a conduct based exemption procedure - as Professor Winkler noted in his law review article and as Don Kates noted in his 1983 University of Michigan Law Review article (Don B. Kates Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 260–62 (1983)) are required - which included a licensing option or a licensing system that acted as an exemption without conduct specific exemptions.

Pre Heller it was very clear that licensing statutes acting as an exemption from the prohibition on carrying (See, e.g.: Mosby v. Devine, 851 A.2d 1031 (R.I. 2004); Matthews v. State, 148 N.E.2d 334 (Ind. 1958); Strickland v. State, 72 S.E. 260 (Ga. 1911)) or conduct based exemptions were permissible as set forth by Professor Winkler in reference to the various decisions set in his article – though Justice O’Connor’s concurrence-dissent in Klein v. Leis, 795 N.E.2d at 640-641 made a cogent point on this issue.

Be that as it may, even as strong a proponent of the individual rights theory (and individual rights in general) under the Oregon Constitution as the Oregon Supreme Court has noted that drawing exemptions from prohibition based on conduct based exemptions vs. status exemptions vs. a license as an exemption is not irrational – which intimates an intermediate standard. State v. Perry, 77 P.3d 313, 318 (Or. 2003).

Most states have an exemption system which includes both a license exemption, status based exemptions, and conduct based exemptions. Several of these licensing statutes allow open or concealed carry, other make it a condition of the license that the gun be carried concealed. California has a general prohibition on carrying in public with a license exemption, conduct based exemptions, and status based exemptions.

There are 40 "shall issue" (which in many ways is a misnomer) requiring that carry permits be issued to applicants who meet uniform standards established by the state legislature. Three have fairly-administered discretionary-issue carry permit systems. All those states also have conduct based and status based exemption.

Typically, when a “shall issue statute” passes, there is discrete legislation to also add conduct based exemption aside from the license as well as exempting security personnel from the general licensing requirement and having discrete security personnel exemptions. That was the case in Michigan (the Vear Law) and just this year in Rhode Island.

The reason for these exemptions being added as part of a “shall issue” system package is that gun owners do not want or generally need licenses – they just want to safely transport their guns unloaded and in a case to and from exempted activities. Couple that with the reality that to get law enforcement and gubernatorial “sign off” to enact a “shall issue” law to “pack in public” is often a time consuming process with safety classes, fingerprinting, photo ID cards, limits on where one with the license can carry, requirement that only certain guns or enumerated guns can be carried on the license, and other restrictions, most gun owners do not want to go through that hassle. As such, forcing people to get licenses where an exemption approach will do when forced upon people by their own advocacy groups to quote former Speaker Brown is “a career ending decision”.

The primary example of the conduct or status based exemption approach as opposed to the licensing exemption approach is Illinois. It is implied by people who attack Senator Obama that Illinois and Wisconsin—have no permit system and prohibit carrying and it is his fault. The assertion as to Illinois is clearly incorrect. For all this talk about Illinois banning concealed carry, Illinois laws are far more nuanced. In order to possess a gun or ammunition in Illinois and is an Illinois resident, one has to have a FOID card if you are a state resident.

Illinois does ban per 720 ILCS 5/24-1 (unlawful use of weapons): (i) concealed carrying or possession anywhere save on one's own private property (5/24-1(a)(4)); (ii) carrying or possession in vehicles (5/24-1(a)(4)); and (iii) carrying or possessing on or about the person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his land or in his own abode or fixed place of business.(5/24-1(a)(10)) There are aggravated penalties for illegal carrying when additional conditions are met per the Aggravated Unlawful Use of Weapons statute (720 ILCS 5/24-1.6(a))

However, in Illinois, there are so many conduct based exemptions – with Senator Obama voting for all the exemption bills that he had an opportunity to vote on in the Illinois State Senate - both in the statutory definitions of the crime and in the discrete exemption statute (720 ILCS 5/24-2) that Illinois is really a very broad conduct and status based exemption state with a specialized licensing (acting as an exemption) for various subcategories of persons in the security field.

The real issue in Illinois is whether as an additional exemption a generalized licensing statute (apart from the way security personnel carry is now addressed in Illinois) should be enacted which according to its terms would only allow concealed carrying. While there are many in Illinois who want a generalized concealed carry system to carry loaded and concealed in public, there is a substantial amount of opposition to this by Illinois gun owners who fear the loss of exemptions that they now have. As I have noted, most gun owners do not want to have to obtain carry licenses and are generally content to have conduct based exemptions. I would note that in Illinois there has been a substantial amount of 42 USC 1983 and other litigation over the exemption in the contest particularly in the security field. See, e.g.: Haywood v. City of Chicago, 378 F.3d 714, 715-717 (7th.Cir. 2004); People v. LoCoco, 647 N.E.2d 1077 (Ill.App.2 Dist. 1995).

While in her dissent-concurrence in Klein v. Leis Justice O’Connor argued that conduct based exemptions were insufficient to protect an individual right, the NRA has been successful in pushing those exemptions in a number of states – the most recent being Rhode Island. In response to this contention, Ohio created a licensing system. That licensing system to be enacted I would argue caused a large amount of problems for Ohio gun owners. It would indeed be ironic if Heller results in more licensing (including registration requirements) to carry outside one’s private property. Yet, some of this compelled by Justice Scalia’s opinion!!

One final note relates to the San Francisco law suit over public housing. Here there may also be a law of unintended consequences. Justice Scalia ruled that an individual had a right to keep a registered gun on his or her own private property. At the same time, Justice Scalia said that a whole slew of regulations were permissible. He specifically said that guns could be kept out of sensitive areas -mentioning government buildings - which public housing is.

Moreover, if the public housing ban is invalid whether this would do the tenants any good given California's unique Home Rule provisions in the State constitution is unclear. San Francisco Housing Authority can probably require as a lease term a condition of the guns being on the premises that they be registered with the State.

While there in theory is state preemption on registration mandates, preemption may well be invalid under Home Rule in this situation. California does register guns and there are "voluntary registration procedures" in law for situations where registration may not be required. To get the tenants’ relief the NRA may have to pay for these persons acquiring firearms and paying for registration where it is not required now. Paying registration fees and weakening preemption is not exactly an explainable strategy to NRA members. Go figure on that.

One final point does relate to Senator Obama. A number of individuals have indicated that there was a “policy shift” in his position on guns. The perceived shift is people not paying attention. Senator Obama has made very clear from Day 1 that he believes that there is an individual right to acquire and possess guns subject to reasonable regulations which is what Heller held. In fact, given the Scalia “We shall overcome” position in Heller, it would be very hard to oppose the opinion as it would in effect be an Obama endorsement of the Dred Scott decision – that is not happening. (I would note that Justice Scalia in effect followed the strategy created by the late Justice Brennan who was his close friend which held that to make an opinion stick, make it very uncomfortable for the dissenters to overrule it.)

In terms of attacks on I have seen, a number of commentators have concluded that since registration and licensing which is fair, efficient, fast and non arbitrary and capricious, that his siding with Scalia is incorrect. DC did not have registration or licensing – it had a flat out ban on possession.

Finally, someone who shall remain nameless told me today that to his surprise younger Obama voters of all stripes were more “pro gun” than so-called Reagan Democrats. It is probably true most of Senator Obama’s younger supporters support “gun choice” subject to reasonable regulation. That should not be surprising as maybe 80% of Americans take that view but to assert that this is a “wedge opportunity” for Senator McCain because of Senator Obama’s “alleged” position is grasping at straws – particularly given Senator McCain’s “flip flops”. Trust me, if we know one thing about Senator Obama and his campaign team, they know the demographics of their supporters.

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.