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.

Plaintiffs submit that to the extent the Second Amendment guarantees the right to keep and bear arms, the right must extend to functional guns within their own homes. Just as the First Amendment guarantees more than the possession of blank newsprint and ink, the Second Amendment guarantees more than a right to possess metal and springs. And just as the First Amendment would not sanction an act mandating the capping of pens at all times, neither does the Second Amendment tolerate laws requiring, without meaningful exception, the disabling, locking, or disassembly of all guns. The right to keep and bear arms implies the right to keep and bear arms in such conditions that they are readily accessible to be used effectively when necessary.

D.C. Code § 7-2507.02 requires that all guns must be kept unloaded and either disassembled or bound by trigger lock at all times unless they are located in one?s business or while a person is engaged in recreational shooting. Yet the District?s self-defense law extends with equal force to a person?s home. Gray v. United States, 589 A.2d 912, 916 (D.C. 1991) (?imminent danger? would have supported deadly force in self-defense inside home); Cooper v.United States, 512 A.2d 1002 (D.C. 1986) (assuming no duty to retreat when attacked inside home by strangers, no ?castle doctrine? against co-occupants). Clearly, a person?s interest in defending against a home invasion far exceeds the interest in securing a business or recreation. ?Surely nothing could be more fundamental to the ?concept of ordered liberty? than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions.? Quilici, 695 F.2d at 278 (Coffey, J., dissenting) (emphasis original).15

Plaintiffs would not object to properly tailored laws requiring the safe storage of firearms, provided the law permits the lawful use of the firearm within the home. But even the federal law barring felons from possessing firearms is understood to carry a justification exception. United States v. Gomez, supra, 92 F.3d 770; see also United States v. Mason, 233 F.3d 619, 622-23 (D.C. Cir. 2000). Certainly Plaintiffs have at least an equal interest in their fundamental constitutional rights as felons have in a necessity or justification defense.

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).

The right to possess a non-functioning firearm within one?s home is no right at all. Defendants must be enjoined from enforcing D.C. Code § 7-2507.02 in a manner inconsistent with Plaintiffs? Second Amendment rights.