DC Circuit Court Still Against the 2nd Amendment

Today, the District of Columbia Federal District Court ruled against Dick Heller's latest challenge to DC's restrictive gun laws. Heller claimed that the District's gun registration, assault weapons ban, and high-capacity magazine ban were not "usual and reasonable". Paul Helmke of the Brady Campaign, short on victories recently, quickly praised the ruling:

Politicians and legislatures at all levels should stop using the Second Amendment as an excuse for inaction against gun violence. They should follow the District’s example and pass the strong, common sense gun laws Americans need and demand to protect their communities.

What Helmke (and other articles on the ruling) fail to mention is that this is the same District Court that dismissed Parker v DC, which later became DC v Heller. It is not surprising that this court would find DC's onerous restrictions Constitutionally palatable. I believe that the more appropriate question is what regulation (outside of the outright ban that the Heller case overturned) wouldn't the DC Circuit find reasonable? Instead of using the strict scrutiny that other enumerated Constitutional rights receive, Judge Ricardo Urbina applied intermediate scrutiny (using the pre-Heller US v Miller case as a guide) so he could defer to the DC City Council's cries for public safety:

Because the Council provided ample evidence of the ways in which the registration requirements will effectuate the goal of promoting public safety, and because public safety is a quintessential matter of public regulation, the court concludes that there is at least a substantial nexus between the registration requirements and the important governmental interest underlying those requirements.

This is where things start to unravel. Judge Urbina claims that these restrictions are 'reasonable' under the 2nd Amendment, because the right must be balanced with 'important government interest' of 'promoting public safety' (instead of enjoying strict scrutiny). Furthermore, the judge states that the Council provided 'ample evidence' to support these claims. The full decision reveals some scary developments on this front. The council generated its evidence by holding hearings in which they took testimony from anti-gun advocates as well as token pro-gun advocates. They then, unsurprisingly (this is the council that believed their outright ban on handguns and functional long arms was Constitutional), sided with the anti-gun advocates and presented these findings as fact while at trial. Judge Urbina took these findings at face value. Who were some of these unbiased and dependable experts, whose testimony was used to find law such as the 'assault weapons' ban reasonable?

• Brian Siebel: Senior Attorney with the Brady Center to Prevent
  Gun Violence - the preeminent anti-gun advocacy group
  
• Cathy L. Lainer - Chief of the DC Metropolitan Police Department and political appointee of anti-gun DC Mayor Adrian Fenty
  

While none of the articles in the media mention this fact, it is not buried. Apparently Judge Urbina saw no conflict of interest in this testimony and found it worthy of specifically highlighting it in his ruling.

This ruling is clearly only the first step in determining what regulations will be deemed reasonable under the 2nd Amendment, but it is obvious that Judge Ubrina will do everything in his power to keep the 2nd Amendment as close to a dead letter as possible. I believe that he intentionally manipulated the text of the Heller decision to violate the spirit of the ruling and create an avenue to use only intermediate review:

A minority of those courts have applied strict scrutiny based on the fact that the majority opinion in Heller describes the Second Amendment right as a “pre-existing right,” Heller, 128 S. Ct. at 2797, 2804, analogizes the Second Amendment right to other fundamental rights, id. at 2797, 2817 n.27, 2821, and states that the right to have arms was “fundamental for English subjects” at the time of the founding...If the Supreme Court had wanted to declare the Second Amendment right a fundamental right, it would have done so explicitly.

I suppose we should not be surprised by Urbina's dismissive behavior towards DC v Heller and his acceptance of vehement anti-gun testimony as material fact. The DC District Court and the DC City Council have fought against gun rights before. Hopefully this time, just like last time, the DC Circuit Court and Supreme Court will come to the same conclusion: the anti-gun position of the District and the Council are unconstitutional and should be overturned.