In theory, some sub-set of handguns might be designed that would fail the Miller test and be subject to prohibition. But in barring Plaintiffs from possessing all handguns, Defendants impermissibly infringe upon the constitutional right to keep and bear weapons in common use that are plainly suitable for lawful behavior. If any outright weapons prohibition fails the Miller test, it is D.C. Code 7-2502.02(a)(4), barring Plaintiffs from possessing ordinary handguns within their homes, and its close cousin, D.C. Code 22-4504, barring the unlicensed movement of handguns within a home.
One obvious candidate for a handgun that fails the Miller test is a single-shot .22 caliber target pistol.  Since Olympic-class shooters are rarely found holding up the local convenience store, this type of gun is rarely considered for bans. 
No court has seriously questioned whether a handgun, generally, is a Miller protected arm ?of the kind in common use? by the public, being either ?ordinary military equipment or [such] that its use could contribute to the common defense.? Miller, 307 U.S. at 178. Nor has any court applied Miller in the manner suggested by FOP II, yet concluded that an outright prohibition of handguns is compatible with an effective militia. FOP II, 173 F.3d at 906. Such a prohibition would quite clearly ?materially impair? the efforts of civilians otherwise capable of bearing arms from maintaining order.
Although it is not mentioned here, Miller dealt with a sawed-off shotgun and made no ruling on whether or not the firearm could contribute to the common defense.  Handguns are obviously part of the common military equipment, being standard issue for some members of the military.  They are also useful for maintaining public order generally, as evidenced by their use by police.

The Miller case failed because Miller's counsel did not introduce any evidence showing the weapon in question was useful for a militia.  Keep an eye out below for how the Parker attorneys avoid that same mistake.
To the extent such questions were raised in Emerson, the Fifth Circuit had no difficulty disposing of them in a footnote. Concerned primarily with the question of whether the Second Amendment conferred an individual or ?collective? right, the Miller analysis of the handgun in Emerson merited only the following observation:

There is no contention here that the Beretta pistol possessed is a kind or type of weapon that is neither ?any part of the ordinary military equipment? nor such ?that its use could contribute to the common defense? within thelanguage of Miller (nor that it is otherwise within the kind or type of weapon embraced in the government's second Miller argument, e.g., ?weapons which can have no legitimate use in the hands of private individuals? so as to be categorically excluded from the scope of the Second Amendment under Miller's holding).

Emerson, 270 F.3d at 227 n.22.

Likewise, in adopting the collective rights theory ?without further analysis or citation of authority,? Emerson, 270 F.3d at 224, the First Circuit conceded that a .38 caliber revolver would not be proscribed under the Miller test, as such a handgun ?may be capable of military use . . . at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber.? Cases v. United States, 131 F.2d at 922-23;13 see also Quilici v. Village of Morton Grove, 695 F.2d 261, 266 (7th Cir. 1982) (?Handguns are undisputedly the type of arms commonly used for recreation or the protection of person and property?) (internal citations omitted).14
Remember the Miller test: capable of contributing to the common defense, in common use at the time, has a legitimate use, and part of the common military equipment.
The District Court recognized the social utility of handguns. Delahanty v. Hinckley, 686 F. Supp. 920 (D.D.C. 1986), question certified, 845 F.2d 1069 (D.C. Cir. 1988), certified question answered, 564 A.2d 758 (D.C. 1989), aff?d, 900 F.2d 368 (D.C. Cir. 1990). In Delahanty, plaintiff police officer, injured in the assassination attempt on President Reagan, sued the manufacturer of Hinckley?s handgun on a products liability theory, reasoning that the gun?s inexpensive nature made it particularly attractive for criminal misuse.
I sometimes wonder if the Hinckley case was the one that kicked off the whole product-liability angle on gun control.  I should do some research on it and see who was behind it sometime.
The District Court rejected the argument as a matter of tort law, since the gun functioned properly. However, the District Court also observed that ?the theory raises concerns which reach constitutional dimensions.? Delahanty, 686 F. Supp. at 928. Apart from the irrational result of privileging plaintiffs shot by cheaper weapons, the Court recognized that many law-abiding citizens ?must resort to the purchase of a cheap handgun? for legitimate self-defense. Id. The District Court was especially troubled by the implication of banning cheaper handguns as ?ghetto guns,? which would suggest acceptance of an unlawful disparate impact upon the rights of low-income and minority individuals. Delahanty, 686 F. Supp. at 929.
You can't ban cheap handguns, since you would be violating the 2nd Amendment rights of the poor.  This would be an excellent follow-up argument to use against the ban on post-1986 machineguns; by raising the price of permitted weapons to insane levels, only the rich can fully exercise their 2nd Amendment rights.  Of course, it would probably be easier to attack the ban on the basis of greatest congruence to military weapons.
Defendants cannot carry their burden of establishing that a generic handgun is not in common use, has no legitimate use in the hands of individuals, cannot be used to provide for the common defense, and is not ordinary military equipment. It is within judicial notice that Defendants provide their police officers handguns; clearly, Defendants recognize that handguns are useful for lawful self-defense and maintaining public order. Indeed, Defendants see to it that plaintiff Heller is allowed a handgun, at least to maintain order within the confines of his workplace.
There it is: we do not need to rely on judicial notice for whether a handgun is useful for maintaining public order and contributing to the common defense: one of the plaintiffs is a security guard and is allowed to possess and use a handgun for that purpose!
Handguns plainly pass the Miller test as weapons protected by the Second Amendment, the rights to which ?shall not be infringed.? U.S. Const. amend. II. D.C. Code 7-2502.02(a)(4), barring Plaintiffs from obtaining handguns by forbidding the registration of such weapons, violates Plaintiffs? rights under the Second Amendment. It necessarily follows that D.C. Code 22-4504 also violates the Second Amendment, at least to the extent it requires an unavailable license to move handguns within one?s home.  That restriction frustrates the keeping and bearing of constitutionally protected arms, equivalent to imposing an independent ban on such weapons. While Plaintiffs do not here challenge the application of Section 22-4504 to public areas, it is notable that even obscene materials not otherwise protected by the First Amendment may be viewed in the privacy of one?s home. Stanley v. Georgia, 394 U.S. 557 (1969). The exercise of Second Amendment rights within the home is entitled to no less protection. ?The government bears a heavy burden when attempting to justify an expansion, as in gun control, of the ?limited circumstances? in which intrusion into the privacy of  a home is permitted.? Quilici, 695 F.2d at 280 (Coffey, J., dissenting).

Defendants? handgun ban also fails the D.C. Circuit?s alternative Miller test set forth in FOP II, 173 F.3d at 906, in that it materially impairs the effectiveness of the militia. Shelly Parker and Tracey Ambeau require handguns to act in concert with others for the common defense. JA 21, 29. Dick Heller is more effective with a handgun than he might be with another type of firearm, JA 23; why else would Defendants supply him (and others) with a handgun for his policing duties? JA 22. Tom Palmer and George Lyon would also be more effective militia members had they the option of using handguns. JA 25, 31.  None of this should be surprising; handguns are extremely practical for many lawful defensive uses.
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This entry was published Sun Aug 13 22:50:49 CDT 2006 by TriggerFinger and last updated 2006-08-13 22:50:49.0. [Tweet]

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