stating that impingement on a fundamental right "may mean that 'strict scrutiny' of any substantial restriction is mandated"
How later courts described this case
- stating that impingement on a fundamental right "may mean that 'strict scrutiny' of any substantial restriction is mandated"
- concluding that possessing "handgun ammunition" in home was constitutionally protected conduct, such that government must prove lack of registration as element of crime charged
- stating that whether circumstance was affirmative defense is “a matter 7 of statutory interpretation”
- reversing conviction for possessing ammunition inside of defendant’s home, where prosecution did not show defendant possessed ammunition for illegal purpose
Written by the judges who cited it.
The opinion
FISHER, Associate Judge,
concurring in the judgment:
In Logan v. United States, 489 A.2d 485 (D.C.1985), this court construed a predecessor statute to mean that “possession of ammunition is presumptively unlawful” and that “the government is required to prove only that appellants possessed ammunition ... in order to establish the essential element of the offense.” Id. at 498 . Today the majority in essence holds that the Supreme Court’s decision in Heller has altered the elements of the offense in those cases where the evidence shows that the defendant possessed ammunition in his home. In such prosecutions, the government is now required to prove beyond a reasonable doubt that the defendant is not “the holder of [a] valid registration certificate for a firearm of the same gauge or caliber as the ammunition he possesses....” D.C.Code § 7-2506.01(a)(3). Majority opinion at 1245. (Indeed, as a matter of prudence, the government is well-advised to prove the lack of a valid registration certificate in all prosecutions for unlawful possession of ammunition (UA).)
I agree that, in light of Heller, the government failed to prove an essential element of the offense. The evidence being insufficient, appellant’s conviction for UA cannot stand. 1 On this basis I concur in the judgment.
. This case is distinguishable from Lowery v. United States, 3 A.3d 1169 (D.C.2010), where the government proved all the elements of the offense, including the lack of a valid registration for the firearm, but the appellant asserted that the statute had been unconstitutionally applied to him. On the existing record, Mr. Lowery was unable to carry his burden of establishing plain error. Here, by contrast, it is clear that the government offered no proof to satisfy an essential element of the offense.