By Jon Katz

Basketball player Lonny Baxter by now has entered a guilty plea and been sentenced to two months in jail for possessing a handgun in the District of Columbia. His case highlights the District of Columbia's draconian and unconstitutional emergency legislation, enacted over the summer of 2006, creating a rebuttable presumption against bail if a judicial officer finds by a substantial probability that the defendant carried an unlicensed pistol. 

I feel that much of the nation's gun control legislation is incompatible with the Second Amendment, and should not be permitted before the Second Amendment is amended. Many gun control advocates try to reduce the Second Amendment to a creampuff by arguing that it speaks of the "right of the people" rather than the gun rights of individuals. However, such a Constitutional misinterpretation would also render meaningless the following critical protection of the First Amendment: "Congress shall make no law respecting ... the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Const. Amend. I (emphasis added). 

Lonny Baxter's case highlights numerous injustices against criminal defendants. For one thing, for a long time, with appellate court authorization, the District of Columbia, the federal government, and the other jurisdictions where I practice (Maryland and Virginia) have had laws creating a rebuttable presumption against bond for certain alleged criminal acts. This situation turns the Constitutional presumption of evidence on its head. 

Unfortunately, the District of Columbia emergency legislation adds carrying an unlicensed pistol to the list of alleged crimes presuming no bond in D.C. Code § 23-1322(c). (Practice tip to lawyers: Lexis has not even incorporated this change yet). 

This law has very harmful implications even for completely innocent people. For instance, when police stop a car for a moving violation or otherwise, it is not uncommon for passengers with contraband (e.g., drugs or weapons) to throw their contraband into someone else's part of the car, to avoid being caught red-handed with the item. Once they find such contraband, most police have a penchant to arrest the driver and either everyone else in the car or everyone else particularly close to the contraband. It is not farfetched at all that a driver or other occupant of a vehicle will not know that others in the car have contraband, but still to be arrested for the contraband and, now, under the D.C. emergency legislation, to be locked up pending trial for allegedly carrying an unlicensed handgun. To be liable for carrying a handgun, one does not need to have the handgun on one's person, but only needs to have knowledge of the handgun's presence, and both the ability and the intent to exercise dominion or control over it. Burwell v. U.S. 901 A.2d 763, 766 (D.C. App. 2006). This high risk of arrest, no bond, and conviction for innocent people is just one of the many reasons that I could not stomach prosecuting, never have, and never will. 

In any event, Lonny Baxter's case alerts more people that the District of Columbia is not a Constitutionally hospitable place when it comes to handguns. Virginia, on the other hand, is surreal if not downright scary, in that in many parts of the state, a license to own a handgun is all that is needed to permit a person to walk down the street openly carrying a handgun, and concealed carry permits are liberally issued. However, I accept that the price of upholding Constitutional rights is to enforce them, including the robust handgun rights that I believe are guaranteed by the Second Amendment.

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