Ex­perts tar­get laws that vi­o­late the Sec­ond Amend­ment

The Washington Times Daily - - POLITICS - John-Michael Seibler is a le­gal fel­low in The Her­itage Foun­da­tion’s Meese Cen­ter for Le­gal and Ju­di­cial Stud­ies.

In Dis­trict of Columbia v. Heller, the U.S. Supreme Court held that Wash­ing­ton, D.C.’s ban on hand­gun pos­ses­sion un­con­sti­tu­tion­ally in­fringed on Sec­ond Amend­ment rights. Yet a Dis­trict law pro­hibit­ing — with few ex­cep­tions — am­mu­ni­tion in res­i­dents’ homes lingers on the books.

What good is the right to keep and bear arms for self-de­fense if you can­not have am­mu­ni­tion? How can res­i­dents look to the law to un­der­stand what con­duct is — and is not — il­le­gal? Should they fol­low the statutes? The court? Get con­fused and forgo their rights?

In Mar­bury v. Madi­son, Chief Jus­tice John Mar­shall wrote that if a statute is “in op­po­si­tion to the Con­sti­tu­tion,” the Con­sti­tu­tion “must gov­ern.”

Fol­low­ing that prin­ci­ple, the crim­i­nal code re­form com­mis­sion es­tab­lished by the City Coun­cil has re­viewed the dis­trict’s crim­i­nal laws and iden­ti­fied two statutes — Un­law­ful Pos­ses­sion of Am­mu­ni­tion (D.C. Code § 7-2506.01) and Al­ter­ation of Iden­ti­fy­ing Marks of Weapons (D.C. Code § 22-4512) — as be­ing un­con­sti­tu­tional.

The com­mis­sion’s find­ings rest on two cases in D.C. courts: Her­ring­ton v. United States and Reid v. United States.

In Her­ring­ton, the trial court had ruled that “all the gov­ern­ment needs to prove to ob­tain [an un­law­ful pos­ses­sion of am­mu­ni­tion] con­vic­tion are ‘that the de­fen­dant pos­sessed am­mu­ni­tion, and that he did so know­ingly and in­ten­tion­ally.’” The D.C. Court of Ap­peals dis­agreed, writ­ing, “a flat ban on the pos­ses­sion of hand­gun am­mu­ni­tion in the home is not just in­com­pat­i­ble with the Sec­ond Amend­ment, but clearly so.”

Yet it ruled that the gov­ern­ment may con­vict a de­fen­dant of un­law­ful pos­ses­sion of am­mu­ni­tion if it also proves be­yond a rea­son­able doubt that he had not law­fully reg­is­tered “a firearm of the same gauge or cal­iber as the am­mu­ni­tion he pos­sesses.”

The com­mis­sion’s re­port iden­ti­fies the statute as un­con­sti­tu­tional but ad­vises law­mak­ers to cure that by amend­ing the law to in­cor­po­rate the court’s rul­ing.

The sec­ond of­fense makes it a crime to al­ter or oblit­er­ate a firearm’s se­rial num­ber. The com­mis­sion’s re­port ob­serves that the law also per­mits a jury “to in­fer that a per­son who pos­sesses a weapon with oblit­er­ated mark­ings is the same per­son who did, in fact, oblit­er­ate those mark­ings.”

In Reid, the D.C. Court of Ap­peals rec­og­nized that in­di­vid­u­als might un­know­ingly ac­quire weapons with pre­vi­ously oblit­er­ated mark­ings, and that, there­fore, the pre­sump­tion of guilt in the statute is fun­da­men­tally un­fair and vi­o­lates due process.

Thirty-four years later, com­mis­sion­ers are just now ad­vis­ing law­mak­ers to bring the law up to date with the U.S. Con­sti­tu­tion.

The com­mis­sion­ers give three rea­sons why law­mak­ers should no longer de­lay up­dat­ing D.C. firearms laws:

1) to en­sure re­spect for the peo­ple’s con­sti­tu­tional rights;

2) to “clar­ify to the gen­eral pub­lic what pre­cisely con­sti­tutes” an of­fense; and

3) to “guide prac­ti­tion­ers in the fu­ture.” For the same rea­sons, other states should re­view their crim­i­nal codes to en­sure that Sec­ond Amend­ment rights, and other con­sti­tu­tional pro­vi­sions, are pro­tected.

As the Supreme Court stated in McBoyle v. United States in 1931, and had rec­og­nized long be­fore that, “fair warn­ing should be given to the world in lan­guage that the com­mon world will un­der­stand, of what the law in­tends to do if a cer­tain line is passed. To make the warn­ing fair, so far as pos­si­ble the line should be clear.”

In Heller, the Court wrote that the Sec­ond Amend­ment bears no “se­cret or tech­ni­cal mean­ings that would not have been known to or­di­nary cit­i­zens in the found­ing gen­er­a­tion.” In McDon­ald v. Chicago, the Court held that “the Sec­ond Amend­ment right, rec­og­nized in Heller, to keep and bear arms for the pur­pose of self-de­fense” ap­plies to the states.

The D.C. Crim­i­nal Code Re­form Com­mis­sion rep­re­sents a step in the right di­rec­tion. It has pro­vided a straight­for­ward method­ol­ogy for re­view­ing crim­i­nal laws in the in­ter­est of pro­tect­ing con­sti­tu­tional rights. It is an ap­proach that all cities and states should con­sider tak­ing.

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