Dark Victory

posted on May 1, 2014
Pamela Leupold

Just after midnight, Dick Anthony Heller steps into a back room in a federal building on Capitol Hill in Washington, D.C. He takes off his holster and revolver. A video camera’s unblinking eye watches as he places the Smith & Wesson in a locker in the government building he protects 40 hours per week.

When the weather is warm and clear, Heller has his bicycle waiting. In the colder months he has his car. Even though he lives nearby, he never walks home—not anymore. He is in his 70s now. And in this neighborhood, only two blocks from the capitol, people have been mugged and beaten on the streets. That’s why he must drive his car or ride his bike—to avoid them.

He has to be extra cautious because anyone who might want to mug him knows he can’t be legally armed—not on these streets. So although he carries a gun to protect government officials and property while on duty, the D.C. government won’t allow him to carry one for his own defense.

Even worse, he can’t do that despite the fact that a few years ago he went all the way to the U.S. Supreme Court, and won!

“At least I’m a guy,” Heller told me in a recent interview. “If I were a woman, I wouldn’t be able to keep this job. Getting off work late at night in the neighborhood I work in would be too risky. It’s these basic human rights we’re still trying to win back in our nation’s capital.”

Photo credit: Pamela Leupold

That is why Heller is again a plaintiff in a lawsuit moving through the federal court system. This case, backed by the National Rifle Association, has been dubbed “Heller II.” It was filed not long after the U.S. Supreme Court decided 5-4 in District of Columbia v. Heller (2008) that the Second Amendment protects an “individual” right. The Heller decision also ruled that D.C.’s outright ban on handguns, as well as regulations requiring that all firearms—including rifles and shotguns—be kept “unloaded and disassembled or bound by a trigger lock,” was unconstitutional.

Heller says they filed the lawsuit soon after winning the original case in 2008 when it became apparent that the D.C. government would continue to infringe on citizens’ right to keep and bear arms.

“After D.C. lost in the Supreme Court, they obviously grabbed every gun control restriction they could find from the 50 states and included almost all of them in a hastily written package of gun control laws,” he said.

Stephen Halbrook, one of the attorneys representing Heller and other plaintiffs in Heller II, put it this way: “It was like D.C.’s politicians wanted revenge for the Supreme Court rebuke.”

Heller II has been slowly working its way through the court system ever since. In October 2011, the U.S. Court of Appeals upheld what it called D.C.’s “basic” registration of handguns, but questioned whether any registration of rifles and shotguns is constitutional. The court remanded the case to a district court to gather further evidence on whether D.C.’s gun registration and other laws are permissible regulations of Second Amendment-protected rights.

In December 2013, the plaintiffs’ attorneys, Halbrook and Dan Peterson, deposed D.C.’s witnesses and filed a motion in the U.S. District Court for the District of Columbia asking Judge James Boasberg for summary judgment on whether D.C.’s gun registration and other laws are constitutional. At press time, Judge Boasberg had yet to rule, but could do so at any time.

“Whoever loses will certainly appeal,” Halbrook said.

D.C.’s Gun Control Gauntlet
Basically, the gun control laws D.C. passed subsequent to Heller prevent any resident from carrying any gun for self-defense; create a gun registry that includes long guns; add registration fees and piles of paperwork; require every resident who wants a gun to be fingerprinted and mandate that gun owners re-register their guns every three years.

Actually, if D.C.’s gun control laws were regulating anything other than gun rights, many urban politicians would be calling them “racist.” That’s because a
person must bring his gun or guns to D.C.’s police headquarters in locked cases for inspection. If he doesn’t have a car—many low-income D.C. residents don’t—he would have to take the train to the Judiciary Square terminal (D.C. has a subway system), hire a taxi or take a bus with his handgun, shotgun or rifle in hand. Additionally, gun owners must pay fees and demonstrate their familiarity with the law by taking a test at D.C.’s Metropolitan Police Department headquarters (MPD).

At the MPD’s request, the D.C. city council did away with a mandated four-hour firearm-training course, but in its place a person who wants to practice his or her right to own a firearm still has to take an MPD Firearms Safety Training Course. They can take the course online, but to do so they’ll need a computer with a “Flash Player” plug-in, which is not supported by iPhones and iPads.

So in reality, a low-income person who can’t take time off work, who can’t afford a computer or who can’t afford transportation with a gun to and from police headquarters is simply out of luck. Many liberal politicians call state voter-ID laws that require people to obtain free IDs from a state motor-vehicle bureau “racist,” yet few seem to mind the massive costs and other infringements placed in the way of American citizens simply trying to practice their right to keep and bear arms in D.C.

As Halbrook points out, long guns are rarely used in crimes. He believes that fact in itself clearly shows D.C.’s gun control laws are only designed to impede people from legally owning firearms.Nevertheless, D.C. is forcing residents to seek permission above and beyond a federal background check for owning any firearm—and D.C. residents have to do this every three years.

And the facts back him up. According to data provided by D.C. to the FBI in 2009, only two out of 144 murders in D.C. that year were known to have been committed with a long gun. In 2010, out of 131 murders in D.C., not even one was reported to have been committed with a rifle or shotgun. In 2011, only one murder in D.C. was reported to have been committed with a long gun (a shotgun), out of 108 total murders.

Given that less than 1 percent of murders are being committed with long guns, how can D.C. justify the onerous need for fingerprinting residents every three years? For context, realize that for the same time period (2009-2011) in D.C., 96 homicides were reportedly committed with knives or weapons other than guns and fists.

When Halbrook questioned D.C.’s witnesses about the need for these laws, they weren’t able to cite a single study indicating that the District’s firearm registration scheme prevents illegal possession of firearms. Actually, studies show that registration laws haven’t had a measurable effect on either crime rates or gun violence.

While being deposed, D.C. Police Chief Cathy L. Lanier even conceded: “It is not clear [to the District] how firearms’ registration records could be used to ‘prevent’ a crime.” She also said she couldn’t “recall any specific instance where registration records were used to determine who committed a crime,” except for possession offenses.

Chief Lanier couldn’t even provide a single example of a registration record being used to solve a crime committed with a long gun.

Nevertheless, D.C. is forcing residents to seek permission above and beyond a federal background check for owning any firearm—and D.C. residents have to do this every three years. According to D.C. law, “No person or organization in the District shall possess or control any firearm, unless the person or organization holds a valid registration certificate for the firearm.” Possession of an unregistered firearm is punishable by imprisonment for one year and a $1,000 fine, and a second offense can get offenders five years in jail and a $5,000 fine.

To find a legal precedent for having a registry for long guns, D.C.’s attorneys had to get very creative. They actually cited an 1896 law from the Republic of Hawaii that required a license to possess a firearm: In 1896 Hawaii was, of course, an independent and undemocratic country. (Hawaii became a state in 1959.)

D.C. attorneys also argued that “laws requiring the registration of certain types of long guns at the federal level has [sic] proven ‘highly successful’ in reducing the use of such long-guns in crime.” They naturally don’t cite any data or study to back up this claim. Attorneys for the District also cite an 1893 Florida statute that empowered officials to grant a license to carry a pistol or repeating rifle. This law, however, didn’t require a license to possess a firearm and was only passed, according to one of the justices at the time, “for the purpose of disarming the negro laborers.”

This should, of course, lead any reasonable person to next ask why, after the Supreme Court decided Heller in 2008, did the D.C. government decide to create a re-registration scheme for guns? Halbrook notes that D.C.’s “own witnesses cite no studies showing that periodic registration renewal or reporting requirements reduce crime or protect police officers.”

Actually, D.C. Police Chief Lanier and the officers who oversee the Firearms Registration Section are quoted in Halbrook’s brief admitting that there were only two handgun applications denied by D.C. in 2011 and 2012. During that period, not a single rifle or shotgun application was refused. To sensible people, this isn’t surprising. Criminals aren’t having themselves voluntarily fingerprinted and photographed, they’re carrying guns when and where they see fit. The entire system is obviously a gauntlet designed to prevent law-abiding citizens from exercising their gun rights.

Other figures fill out the picture. According to D.C. records, from 2007 to 2013 the police seized 12,000 unregistered firearms. Meanwhile, law enforcement only seized 36 registered guns during this same period. Of those 36 guns, only 17 were involved in charges against a registered firearm owner. Of those 17 cases, only two resulted in convictions for a violent crime. So statistically and rationally speaking, the good guys with the guns—the ones being burdened by the gun control regulations—are clearly not the problem.

Incredibly, this lawsuit has even made it clear that officers responding to calls are not being informed if there is a registered firearm at the location. Police cars aren’t equipped with a computer that can access the firearm registry, and dispatchers can’t check the registration database.

However you add it up, the entire system is obviously a gauntlet designed to prevent law-abiding citizens from exercising their gun rights.

If this case makes it to the U.S. Supreme Court, it will surely be used as a precedent in other cases where citizens are challenging burdensome restrictions to their right to keep and bear arms. But there are likely years of litigation to come before Dick Heller and the rest of D.C.’s law-abiding residents might get the chance to carry guns for self-defense and, thereby, use their constitutional freedom to help create a safer society.

D.C. Convicts Resident for Muzzleloader Bullets
Mark Witaschek, a financial advisor, was in his D.C. home with his children one evening in 2012 when police showed up with a search warrant. They put him in handcuffs and searched his home, where they found a single shotgun shell.

The shell was a dud that had failed to go off when Witaschek had been on a pheasant hunt. At the time, he kept his guns and ammunition at his sister’s house in Virginia. But he’d kept the shotgun shell as a memento of the hunt.

The police also found some muzzleloader bullets. They didn’t find any gunpowder or primers—basic requirements for propelling such bullets—just the copper-and-lead bullets. For these supposed infractions, officers arrested Witaschek, and he spent the night behind bars.

Though Witaschek had no prior criminal record, D.C. Attorney General Irvin Nathan decided to prosecute him for possessing the “ammunition.” You’ll remember Nathan as the attorney general who opted not to prosecute NBC News anchor David Gregory in January 2013 for possessing a banned “high-capacity” magazine in Washington, D.C., for television propaganda supporting a magazine ban. Yet he prosecuted a resident with no criminal record for having a dud shotgun shell and some muzzleloader bullets.

In March, Robert E. Morin, an associate judge for the Superior Court of the District of Columbia, found Witaschek guilty of “attempted possession of unlawful ammunition” for the muzzleloader bullets. The judge wasn’t able to decide whether the shotgun shell with its primer pushed in was illegal.

In fact, the judge shook the shell and remarked he couldn’t hear powder in it. He wanted it cut open, but was told that wasn’t safe to do outside a laboratory. The prosecuting attorney tried to find a lab, but couldn’t locate one in D.C. that could open the shell in time. So the judge sentenced Witaschek to time served, a $50 fine and required him to enroll with the Metropolitan Police Department’s firearm offenders’ registry within 48 hours for the muzzleloader bullets charge.

Witaschek is appealing the decision. Meanwhile, he’s no longer willing to live in our nation’s capital. Witaschek has moved just outside D.C. to Virginia.



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