A RIGHT TO KEEP AND BEAR FUNCTIONAL ARMS
BECAUSE THE RIGHT TO KEEP AND BEAR ARMS IS A RIGHT TO KEEP AND BEAR FUNCTIONAL ARMS, D.C. CODE § 7-2507.02 IS UNCONSTITUTIONAL.Safe storage laws are generally not objectionable on principle, even within the bounds of the 2nd Amendment, assuming they are crafted narrowly. The objections arise from the impossibility of enforcement and the use of such laws as a vehicle to prohibit self-defense use (as is happening here).
The "necessity or justification" defense covers a few situations where felons have possessed firearms in the course of defending their lives from a violent attack. While going out to deliberately obtain a gun would not be a defense, using one that was available on the scene would be acceptable. Taking a gun from one of the attackers is one example.
The DC laws in question do not contain self-defense exceptions in the text, and they do not contain self-defense exceptions in the case law either. In one of the earlier briefs in this case specific instances of individuals prosecuted for using a firearm in self-defense were cited.
Thus, while Section 7-2507.02 addresses an arguably appropriate area of regulation, it is unconstitutionally overbroad in its reach. The overbreadth is especially troubling considering Defendants? aggressive prosecution of gun owners in cases of admittedly lawful self-defense. Chief Judge Ginsburg suggested that the risk of prosecution in such cases is ?speculative,? Seegars v. Gonzales , 413 F.3d 1, 2 (D.C. Cir. 2005) (Ginsburg, C.J, concurring), while Judge Williams suggested the risk was real. Seegars, 413 F.3d at 2-3 (Williams, J.). The Court ordered the instant Plaintiffs to file additional briefs in light of the outcome of the Seegars rehearing petition. As Plaintiffs demonstrated with reference to specific cases, Judge Williams?s intuition is sadly correct: victims of home invasions who defend themselves with firearms are prosecuted for gun violations, even where the government does not question the legitimacy of using the firearm against the intruder. (Pl. Second Mot. To Issue Br. Schedule & Set Arg. on Merits, pp. 13-15).And there you have it. The District's gun laws permitting possession of a long gun in the home if it is rendered inoperable are no more acceptable than one allowing possession of a printing press so long as it never printed anything. Possession is meaningless without the right to use the object as intended.
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