Heller spanks DC again: District folds on arbitrary ammunition limitations while carrying

AP Photo/Rich Pedroncelli, File

The confetti was hardly swept up from Justice Thomas’s 74th birthday extravaganza and another folk hero of Americana lore, Dick Heller, took a shot at dismembering more of the District of Columbia’s hydra-like laws. On June 30th Dick Heller filed another Heller v. DC suit, with having his sights set on magazine capacity limitations and how much ammunition a private citizen may carry on their person when bearing an arm in public. At the time, the District capped that amount to 20 rounds. Heller shared some news recently that the matter is being settled and he’s able to mark up another hash in his win column.

The original complaint embraces some of the high notes from NYSRPA v. Bruen and we can assume contributed to the victory Heller obtained.

The regulation at issue in this case, runs afoul of the Second Amendment because it lacks any historical justification, is arbitrary and capricious, and unnecessarily impinges on the core right of self-protection. Moreover, to the extent any continuing validity exists of the interest balancing test adopted by the D.C. Circuit in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) – and we suggest there is not – the regulation at issue herein is not justified by an articulated compelling or substantial governmental interest, and lacks sufficient tailoring to achieve whatever governmental interest, if any, might exist to otherwise support it.

There’s so much poetic justice when Heller gets to cite Heller back to his oppressors.

The original filing went into the history of the rules governing this area of the regulation, with the punctuation being this arbitrary 20 round limitation.

…on March 6, 2015, the Chief issued a Notice Of Second Emergency And Proposed Rulemaking, N0051986, 62 DCR 2803, which without comment or explanation,doubled the allowable ammunition a concealed pistol licensee could carry on his person. This regulation read, “A person issued a concealed carry license by the Chief, while carrying the pistol, shall not carry more ammunition than is required to fully load the pistol twice, and in no event shall that amount be greater than twenty (20) rounds of ammunition.”The Chief adopted the final rule via a Notice of Final Rulemaking, N0054222, issued July 17, 2015, 62 DCR 9781, again without comment or explanation regarding DCMR 24-43.1, which was unchanged from the second emergency proposed rulemaking.

Dick Heller, the perpetual litigant and liberator of the disarmed scored a victory. On September 14th, 2022 a notice of repeal was filed by the District pertaining to the regulation. According to the filing, the District alerted the court of the mootness of the suit, as there was a rule change that voided some of Heller’s claims.

Defendants provide the attached Notice of Emergency and Proposed Rulemaking by the Metropolitan Police Department, promulgated on September 14, 2022. See Exhibit A (Notice of Emergency and Proposed Rulemaking). It was effective immediately on signature and will be published in the September 23, 2022 edition of the D.C. Register. The Notice repeals the ammunition limit challenged here, 24 DCMR § 2343.1.

The Emergency and Proposed Rulemaking did change the regulation on how much ammunition one may bear while in the District. In the notice, the District publicly folded their hand fearing imminent defeat.

On review of these developments, this regulation, its enforcement history, and in consideration of other regulations that govern concealed-carry licensees, the Chief has determined that emergency rulemaking action is prudent and necessary for the immediate preservation of the welfare of District residents and to enable the District to avoid accruing liability for attorney fees in legal challenges. The Chief immediately repeals the challenged provision, 24 DCMR § 2343.1, to effect a change in law sooner than otherwise would be possible.

This concession of the unconstitutionality of the law is an enormous win for Heller, those that carry in DC, and really people across the nation. Granted, the District mooted the case just before they were going to have to justify the regulation in court, but some relief was rendered. Just like when DC got spanked for their carry permit laws, they just folded without doubling down on appeal, they seem to be learning that it’s not always right to fight, especially when they’re defending what they know to be unconstitutional laws and are throwing away taxpayers money. How much egg can DC’s officials stand to have on their faces?

Both parties filed a Joint Motion to Stay the litigation. The mooting via regulation change does not mean that all of the injury claims were remedied, and I’m sure we’ll be reporting back eventually on the District having to give Heller, et.al. another nice big check for usurping civil liberties and for repayment of lawyer’s fees.

The Parties are discussing settlement and need additional time to pursue a potential resolution that would avoid further litigation. To facilitate these efforts, the Parties request that the Court stay this matter until October 17, 2022, and order the Parties to submit a joint status report by October 17, 2022, updating the Court on the status of any settlement negotiations and whether a further stay of proceedings is warranted. A memorandum of points and authorities and the text of a proposed order are attached.

A hearty congratulations to plaintiffs Dick Heller, the Heller Foundation, Charles W. Nesby, and attorneys George L. Lyon Jr. and Matthew J. Bergstrom on this win. The continued fight for the rights of those who live in, work in, or go to Washington DC, by this team has been paramount to the protection of our fundamental rights. As always, should there be future developments on this case, we’ll be offering updates here at Bearing Arms.