What Next for D.C.'s Gun Laws

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OPINION

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What Next for D.C.'s Gun Laws
By DAVID B. KOPEL and ROBERT A. LEVY
August 8, 2008; Page A15

The Supreme Court ruled in June that provisions of Washington, D.C.'s gun laws are unconstitutional. Unfortunately, the city has responded with new regulations that are a flagrant attempt to circumvent the court's decision.

It's time for Congress to use the power granted to it in the Constitution to "exercise exclusive legislation" in the District and uphold its residents' constitutional rights. It can do so by passing the District of Columbia Personal Protection Act now pending in Congress, with a few adjustments. This bill, introduced on July 31 with 57 cosponsors, would prevent D.C. from passing regulations that discourage the private lawful use of firearms or otherwise suppress residents' Second Amendment rights. It is the result of a compromise between the National Rifle Association and House leaders.

To ensure broad-based, bipartisan support, we propose four modest congressional actions that would preserve some home-rule authority while erecting a commonsense framework for restoring the right to self-defense in our nation's capital.

First, Congress should change how D.C. processes gun registrations. Currently, residents must complete an application form, submit photographs, prove residency and good vision, pass a written test, pay a fee, be fingerprinted, and have the gun ballistics tested. The entire process can take months.

Congress should mandate a more streamlined process for D.C. based on the National Instant Criminal Background Check System, which is already required by federal law for all retail firearm sales. Background checks are usually completed within a few hours.

Second, D.C. still bans all "machine guns," improperly defined as any gun capable of firing 12 or more rounds without reloading -- even if the gun owner has a magazine with fewer rounds. As a result, only revolvers or single-shot handguns can be registered. But semiautomatic handguns constitute about three-quarters of handguns sold in the U.S. Banning them violates the Supreme Court's rule in District of Columbia v. Heller against "prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society" for lawful self-defense.

The new guidepost should be that a firearm may not be banned unless it is prohibited by federal law or subject to the National Firearms Act, which covers weapons such as real machine guns and sawed-off shotguns.

Third, D.C. still requires that weapons in the home be unloaded and either disassembled, trigger-locked or kept in a gun safe. An exception is made for a firearm while being used against a threat of immediate harm within the home. That exception is unconstitutionally vague. According to acting D.C. Attorney General Peter Nickles, a homeowner cannot have an unlocked and loaded gun even when investigating the sound of intruders in her backyard.

Any rule requiring a crime victim to wait until her attacker has actually entered the home is unreasonable. Congress should bar D.C. from prohibiting or infringing a home use of firearms for self-protection. Within that constraint, D.C. can fashion sensible safe-storage regulations.

Fourth, under federal law, buyers may acquire a handgun only within their state of residence: Out-of-state sellers must first ship the gun to someone in-state who has a Federal Firearms License.

However, because of the District's 1976 gun ban, there are no stores selling guns within the city, and only one or two federal firearms licensees willing to take delivery from outside on a limited basis. It will be months before gun dealers are licensed. Thus, D.C. residents who do not own a handgun cannot obtain one, and cannot exercise their constitutional right, affirmed by the Supreme Court, to defend themselves where they live. Congress should revamp the federal restrictions on interstate handgun sales to allow, at a minimum, District residents to purchase handguns in Maryland or Virginia. Like rifles and shotguns, handguns should be obtainable from an out-of-state licensee if the sale complies with laws applicable where the buyer resides and where the sale occurs.

Over the years, our elected representatives have adopted a court-centric view of the Constitution -- a view that decisions about constitutionality are properly left to the judiciary. But members of Congress also swear to uphold the Constitution. Congress can make good on that oath by restoring the right of Washington, D.C., residents to possess functional firearms in their homes.

Mr. Kopel is an associate policy analyst at the Cato Institute. Mr. Levy is a senior fellow at Cato and was co-counsel to Dick Heller in District of Columbia v. Heller.