I found this very interesting. I don't have time to get into it much for reasons that will be made apparent in my next post. But here are some appetizers:
For starters, the Common Law had long – as Dr. Cavala properly noted –limitations on who can possess what type of weapons and where. The best analysis of this issue is set forth in Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 224, 241-51 (1983).
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The same can be said of machineguns – although they are not considered protected as being allowed in private hands for the same reason that WMD’s are not: the Common Law limited certain very lethal weapons to being in the exclusive hands of the state to avoid the defacto creation of private armies. The NRA in fact provided an expert witness on the matter at hand.
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Where the opinion will require continuing judicial supervision – in fact the appointment of a special master on remand is on the process of registering handguns in the District. That is the real issue and one that has received scant attention. The Silberman opinion did not wipe out registration – in fact it ordered it. That raises the issue of who can acquire and register handguns in accordance with the Court opinion.
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The District of Columbia for Gun Control Act purposes is considered a state (18 USC 921(a)(2)). That means that the federal rules regulating transactions between residents of different states apply. That means as to handguns that DC residents cannot outside the district, acquire handguns and bring them back into the district. Also, non DC residents cannot transfer guns to DC residents unless the transaction is brokered through a federal firearms licensee (FFL) who is licensed by BATF to operate within DC. I am told that there are no DC licensed gun shops as such. That being the case, persons who possess handguns in the District who could take advantage of the opinion is quite limited if not non existent – as noted below. It is important to note that Silberman’s ruling did not wipe out the registration provisions – in fact that was the relief requested. Rather, it wiped out the bar to registering (and thus legally having) guns. There will not be a rush to buy guns because there are no legal outlets – as of today – in the District.