Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
If you’re reading this, the name Dick Heller should be in your memory bank. If you don’t quite know who Dick Heller is, to bring you up to speed, he’s the lead plaintiff from the 2008 challenge to Washington, DC’s ban on handguns. When people talk about “The Heller” decision, that’s the one that’s being discussed. Well, Dick did not stop fighting for freedoms in 2008 and recently a case coined “Heller 4” has bared some fruit. In September of 2021 Heller filed a challenge against DC’s 2020 ban on so-called ghost guns as well as an older prohibition on building one’s own firearms. The law included a very broad definition of “ghost gun”.
(9B) “Ghost gun”:
(A) Means:
(i) A firearm that, after the removal of all parts other than a receiver, is not as detectable as the Security Exemplar, by walk-through metal detectors calibrated and operated to detect the Security Exemplar; or
(ii) Any major component of a firearm which, when subjected to inspection by the types of detection devices commonly used at secure public buildings and transit stations, does not generate an image that accurately depicts the shape of the component; and
(B) Includes an unfinished frame or receiver.
That law affected more than just homemade firearms. The law also banned those which were already commercially available. The frame or receiver did not need the ectoplasm of DIY craftsmanship on it to be banned. From the complaint we get a better understanding of the law’s ramifications.
In sum, the District makes it a criminal offense to make a firearm in the District, and makes it a criminal offense to possess components to make a firearm frame or receiver. In addition, the District makes it a criminal offense to possess a firearm the bare frame or receiver of which is less detectible than 3.7 ounces of ferrous metal. As discussed herein, these provisions raise grave constitutional issues under the Second Amendment and the due process clause of the Fifth Amendment.
[…]
55. All polymer pistols legally sold or imported in the United States comply with this federal statute. Such guns contain more than the equivalent of 3.7 ounces of metal in their slides and barrels, and the frames of these guns are accurately depicted when passing through an X-ray machine. Thus, the federal statute prevents someone from passing a functioning gun through an airport type metal detector or even a stripped down frame through an X-ray machine.
56. By contrast, the District’s definition of “Ghost Gun” requires that a pistol’s frame alone, exclusive of the slide and barrel, contain the equivalent of 3.7 ounces of metal. Because of that requirement, District law outlaws all models of the Glock handgun as well as most polymer framed pistols sold or possessed in the United States. (We say most, because the polymer frame of the S&W M&P series is constructed over a metal chassis that may or may not contain sufficient metal to comply with the D.C. statute.)
The complaint is correct. The law would have made/did make all these popular commercially available firearms illegal “ghost guns”. Naturally the police and military were immune to these provisions, as they’re excluded from nearly every gun control law on the books in every jurisdiction. That silver bullet to blanket the police and military while creating a caste system. A holy water atonement from the gun-grabbers.
This fun little quip from the complaint should serve as a warning message to all the anti-freedom caucus members as well as foreshadowed a bit of the outcome:
The District has clearly not learned from its numerous defeats of in the courts, and this case arises from that predicament. The District’s antipathy toward firearms, a Constitutional protected item, extends so far as to flatly prohibit the manufacture of a firearm in the District; not a particularly dangerous and unusual firearm, see, e.g., Heller, 554 U.S. at 571 (discussing that laws forbidding the carrying of dangerous and unusual weapons were presumptively valid), but any firearm. See D.C. Code § 7-2504.01(a).
You shouldn’t need a Ouija board to see where this headed. DC, not wanting to be entangled in another grudge-match with champion civil rights activist Dick Heller turned Ghost Buster, made modifications to the law to meet some of the statutory items noted in the prayer for relief. In a memorandum from Councilmembers Charles Allen and Chairman Phil Mendelso to the Secretary of the Council, Councilmembers, et.al. the following was stated/requested to be addressed at the November 16th legislative meeting:
District law currently prohibits the registration and possession of ghost guns. Recently, however, this prohibition, and a pre-Heller provision categorically prohibiting the manufacture of firearms, has been challenged in federal district court as violative of the Second Amendment. Consequently, there is an immediate need for clarifications to these laws in order to ensure that they prohibit only undetectable and untraceable firearms—true ghost guns—while permitting the self-manufacture of serialized registered firearms. Specifically, there is an immediate need for clarifications to the current definition of “ghost gun” to ensure that only undetectable firearms are captured within it, and that excepted from the definition and the District’s prohibition on manufacture, are self-manufactured firearms, made solely for personal use, that have unique serial numbers and are lawfully registered. This emergency legislation would preserve the District’s strong prohibitions on ghost guns but clarify the law’s reach. The amendments are consistent with federal law and the best practices of other states.
One deceleration and two amendments were introduced to partially satisfy the mooting of Heller’s suit:
“Ghost Gun Clarification Emergency Declaration Resolution of 2021”
“Ghost Gun Clarification Emergency Amendment Act of 2021”
“Ghost Gun Clarification Temporary Amendment Act of 2021”
A summary of these changes were put out by the National Shooting Sports Foundation and they are as follows:
Under the approved change, firearms would have to be detectable with their barrel, trigger and firing mechanism attached, even if the receiver is polymer-based, to prevent construction of a completely plastic gun. This is similar to the Undetectable Firearms Act, which requires all firearms to contain at least 3.7 ounces of metal. The amended language also says homebuilt firearms cannot meet the new definition of all-plastic “ghost guns,” must be registered, only for personal use and are required to have a unique serial number.
The changes are not 100% set in stone because they are temporary. In a The Reload article, Heller was quoted to say that:
We have no interest in violating federal law. I’m happy to put a ‘DH-1’ serial number on it [helps in court cases] and, at the moment, register it
[…]
D.C. only passed an emergency measure; it still has to permanently repeal the offending provisions, and I still have a claim for monetary damages for the violation of my Second Amendment rights.
I did have the chance to catch up with Heller’s attorney on this case. George L. Lyon, Jr. from Arsenal Attorneys had the following to say about the situation:
The District of Columbia continues to have to be dragged kicking and screaming to respect the Second Amendment. For the District to think that it could ban the manufacture of a constitutionally protected item says a lot about the mentality gun owners face in the national’s capitol.
Not everyone on the board was in support of accepting these changes. Which is ridiculous. In just looking at the complaint and probably with some nudging from the anti-freedom caucus, 12 of the 13 Councilmembers were able to deduce the change was necessary to not get further tied up in a court battle. Moreover, the move would make it to remove the potential that every “ghost gun” law would be vulnerable to being nullified by getting run over by the Heller train. If the case progressed to SCOTUS an opinion under the current make up of the court could be a real poltergeist for the anti-gunners. According to the Washington Post Councilmember Brooke Pinto was the lone member to vote against these changes:
The legislation was approved 12-to-1 and now heads to Mayor Muriel E. Bowser (D) for consideration. Council member Brooke Pinto (D-Ward 2) was the only vote against the measure. She argued that “the proliferation of ghost guns in our city is certainly not what the founders anticipated or intended,” even if it is subject to legal challenge.
“I’m hoping for more clarification on why we as a city have to continue allowing something that in my view is extremely outside the scope of what the founders intended,” she added.
It’s this kind of hubris that leads to judicial upsets for the anti-freedom caucus members. To her statement we’ll add another citation from Heller’s complaint:
“Our citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.” Secretary of State Thomas Jefferson, letter to George Hammond, British Ambassador to the U.S., May 15, 1793, in 7 The writings of Thomas Jefferson 325 (Paul Ford ed. 1904).
Madam, I’d have to say your assertions are wrong. History would say your assertions are wrong. If we had a séance today I’m confident the founders would be not only be onboard with the etheric ghost guns Pinto et.al. are scared stupid over, they’d be looking towards Rob Pincus to get involved in a DIY gun building event. Imagine a parallel universe where the founders could 3D print their own arms!
To all of this we must say “bravo!” to Mr. Dick Heller, the god-daddy of the modern Second Amendment. If you asked Dick about his involvement in cementing our rights through the judicial system, he’d very humbly refer to his case (Heller I) as Scalia’s opinion, rather than his complaint. Heller in his down to Earth manner is a true patriot for civil rights. What’s next? Who’s gonna be hit by Dick in Heller V? Hard to say. But you can follow all the great work that Heller is doing over at the homepage for The Heller Foundation.