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January 16, 1969

Walter E. WASHINGTON, Commissioner, and Stanley J. Anderson, Margaret A. Haywood, John A. Nevius, Polly Shackelton, William S. Thompson, J. C. Turner, Joseph P. Yeldell, Walter E. Fauntroy, John W. Hechinger, Members of the District of Columbia Council, Defendants

The opinion of the court was delivered by: GASCH


 GASCH, District Judge.

 This matter came on for hearing on cross motions for summary judgment. The issue is whether the regulations promulgated by the District of Columbia Council are predicated upon lawful authority. It is the position of the plaintiff that by virtue of Article I, Section 8, Clause 17, of the Constitution of the United States that exclusive legislative authority over the federal city is vested in the Congress of the United States. Plaintiff questions whether Congress has delegated to the Council or its predecessors, the Commissioners of the District of Columbia, authority to make the regulations in question. The 1906 Act of Congress (34 Stat. 808), codified in part as Title I, Section 227 of the D.C.Code, authorizes and empowers the Commissioners of the District of Columbia to make and enforce all such usual and reasonable police regulations as they may deem necessary for the regulation of firearms, projectiles or explosives of any kind. Counsel points out that this act was drawn originally for the sole purpose of protecting wild birds in the District of Columbia. In 1958 the 1906 act was repealed, except for Section 4, which now appears as Title I, Section 227 of the D.C.Code (72 Stat. 814). Plaintiff takes the position that since originally the act was drawn to deal with the hunting of game birds, Section 4 thereof, which has been retained, could contain no greater authority than had originally been the subject of the legislative declaration.

 Plaintiff also asserts that the 1932 act (47 Stat. 650), which permits persons to possess firearms in their own houses and places of business with certain exceptions -- dope addicts, felons, etc. -- must because of the expressed coverage of the act be regarded as pre-empting the field. Counsel also takes the position that since Congress has permitted expressly persons to have pistols in their homes and places of business that the Council may not now by its act prohibit such permission unless a license is obtained from the Chief of Police and a fee paid therefor.

 The Corporation Counsel takes the position that the 1932 act does not preempt the field and that the Council's utilization of Title I, Section 227, for the purpose of making regulations for the protection of the public health, welfare and safety is a legitimate exercise of the police power specifically authorized by the 1958 amendment of the 1906 act.

 Plaintiff's counsel, in reply, has brought to the attention of the Court efforts on the part of the Commissioners of the District of Columbia to obtain legislation comparable to that which the Council has recently promulgated. These recent efforts are reflected in communications of the Commissioners dated March 6, 1963, and March 14, 1968. Counsel also mentioned that the Deputy Commissioner, Mr. Fletcher, addressed a letter to the appropriate congressional committees seeking such legislation even after the Council enacted these regulations. This letter, however, was never delivered to the congressional committees.

 It has long been established that the municipal authorities have only that legislative authority which Congress has given them. ( Neild v. D.C., 71 App.D.C. 306, 110 F.2d 246 (1940)). The narrow question on which the case turns is whether the residual portion of the 1906 act which was specifically retained by Congress in 1958 serves as an appropriate basis for these regulations. Logically Congress could have no other purpose or intention in providing for the retention of this authority by the municipality (Title I, Section 227, D.C.Code), than to afford the municipal authorities an opportunity to promulgate such regulations. The pre-emption doctrine on which reliance is placed by plaintiff would not preclude the registration of firearms by those authorized under the 1932 act to possess them nor would it be inconsistent with the permissive provisions of the 1932 act. ( Fieldcrest Dairies v. City of Chicago, 122 F.2d 132 (7th Cir. 1941), vacated on other grounds 316 U.S. 168, 62 S. Ct. 986, 86 L. Ed. 1355 (1942); Natural Milk Producers Ass'n v. City & County of San Francisco, 20 Cal.2d 101, 124 P.2d 25 (1942), vacated on other grounds 317 U.S. 423, 63 S. Ct. 359, 87 L. Ed. 375 (rehearing denied 318 U.S. 798, 63 S. Ct. 528, 87 L. Ed. 1162 (1943)). Obviously those prohibited by the 1932 act from possessing firearms could not be permitted to register their firearms.

 Accordingly, the motion for summary judgment by defendants is granted and the motion for summary judgment by the plaintiff is overruled.


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