Appeals Court Strikes Down District Of Columbia Restrictions On Concealed Carry Of Guns
A three judge panel of the D.C. Circuit Court of Appeals has struck down a District of Columbia law regarding the concealed carry of weapons in the nation’s capital in a decision that is likely to be appealed further:
A federal appeals court on Tuesday blocked the District from enforcing strict limits on carrying concealed firearms in public, restrictions that police officials have said are necessary to promote public safety in the nation’s capital.
In a 2-to-1 decision, the U.S. Court of Appeals for the District of Columbia Circuit said the District’s system, which requires a “good reason” to obtain a permit, is akin to an outright ban in violation of the Second Amendment.
“The good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs,” wrote Judge Thomas B. Griffith, who was joined by Judge Stephen F. Williams.
“Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test.”
The court’s rejection of the District’s permitting system is the latest legal blow for city officials who have been forced to rewrite gun-control regulations ever since the Supreme Court in 2008 used a D.C. case to declare a Second Amendment right to gun ownership. The ruling follows proposals from Republican members of Congress that would require the District to honor concealed-carry permits from other states in the wake of a June shooting at a GOP congressional baseball practice.
D.C. Attorney General Karl A. Racine said his office is considering whether to ask the full D.C. Circuit to review Tuesday’s decision by a three-judge panel and is committed to “fighting for common-sense gun rules.”
Griffith’s opinion is at odds with rulings from other circuit courts in finding that the Second Amendment guarantees someone’s right to “carry firearms beyond the home for self-defense — even in densely populated areas, even for those lacking self-defense needs.”
“The point of the Amendment isn’t to ensure that some guns would find their way into D.C., but that guns would be available to each responsible citizen as a rule,” Griffith wrote.
Griffith, a nominee of President George W. Bush, was part of the court’s majority in 2007 that overturned the District’s decades-old ban on handguns.
In her dissent Tuesday, Judge Karen LeCraft Henderson wrote that the District’s regulation “passes muster” because of the city’s unique security challenges as the capital and because it does not affect the right to keep a firearm at home.
The court, she wrote, should defer to District officials, including former police chief Cathy L. Lanier, who have backed the permitting system as a way to prevent crime.
The ruling from the three-judge panel gives city officials 30 days to decide whether to appeal for review by a full complement of D.C. Circuit judges. If the court does not agree to revisit the case, the order to permanently block enforcement of the “good reason” requirement would take effect seven days later.
The Volokh Conspiracy’s David Kopel has an excellent post that summarizes and analyzes the majority opinion quite thoroughly, in his conclusion he states the following:
Lower federal court judges have varied widely in how rigorously they apply the Supreme Court’s Heller decision. Some, like Judge Henderson, have opted for a very weak form of intermediate scrutiny (or even less) that will uphold just about every gun control other than a handgun ban. Others have applied a more vigorous review, and have found some (but certainly not all) gun controls to be unconstitutional. (For a survey of the decisions, see Kopel & Greenlee, “The Federal Circuits’ Second Amendment Doctrines,” 61 St. Louis U.L.J. 193 (2017).)
In my view, the Wrenn majority correctly followed Heller, which teaches that total bans (or 99 percent bans) applied to law-abiding citizens are categorically unconstitutional. Notably, the Wrenn decision acknowledges Heller‘s dictum that carrying may be prohibited “in sensitive places, such as schools and government buildings.” Given the multitude of government buildings in the District, there are still many places where carrying may be prohibited. However, when a woman is walking at night from her apartment to an automobile parking lot, the District may not prohibit her from being able to defend herself.
For the most part, I find myself agreeing with the Court’s majority and with Kopel in concluding that the District’s near-complete restriction on anyone’s ability to obtain a concealed carry permit unless they could satisfy a “good reason” requirement that seems to be entirely arbitrary in its application. In the light of the Supreme Court’s decisions in Heller v. District of Columbia and McDonald v. Chicago, which recognized the existence of an individual Second Amendment right to own handguns and keep them in the home, it seems axiomatic that the right also extends to allowing individuals to carry those weapons outside the home and that laws that are complete bans on such “bearing” of arms, whether concealed or openly, cannot withstand scrutiny under these decisions, which now seem as though they will remain established Second Amendment precedent for the foreseeable future. The Heller decision, for example, makes a persuasive case that a major part of the right that the Second Amendment was created to protect includes the idea that individuals should be allowed to defend themselves, and that carrying a weapon is a legitimate exercise of the right the Amendment protects.
This doesn’t mean that there can’t be some reasonable regulation of the right to carry weapons in public. As Justice Scalia noted in his majority opinion in Heller, the right that is protected by the Second Amendment is not unlimited and would not bar limitations on the right that could result in some restrictions on the right to keep and bear arms in certain cases. In the opinion, Scalia made note of regulations such as background checks for gun purchases and, potentially, restrictions on the kinds of weapons that individuals can “keep and bear,” although it did not spell out in detail the extent to which such regulations could be acceptable. While this language was not necessary for the decision the Court reached in that case, or in McDonald, it does suggest that there are some restrictions that would pass muster under the Second Amendment. The only limitation is that these regulations cannot extend as far as an outright ban or on regulations that are so restrictive as to amount to a ban. In this case, the Court found that requiring D.C. residents to show “good reason” for why they should receive a concealed-carry permit was too restrictive on the Second Amendment rights of those residents who wish to ‘keep and bear arms’ while in public. Given the fact that it appears from the record of the case that the “good reason” requirement was applied rather arbitrarily, it appears that the Court majority is correct in this conclusion.
Where the case goes from here is largely up to the District of Columbia.
One option would be to seek to have this panel’s decision reviewed by the entire D.C. Circuit Court of Appeals, and there may be some advantage for the District to try this option. As it turns out, all three of the Judges on the panel that decided this case were appointed by Republican Presidents. The full Circuit Court of Appeals, however, consists of eleven Judges, seven of whom were appointed by either President Clinton or President Obama and eight of whom were appointed by either President George H.W. Bush or President George W. Bush. This could mean that there is a potential majority on the full Court that would be more sympathetic to the District’s arguments than this panel was. As I’ve noted in the past, though, such en banc appeals are not common and entirely up to the discretion of the Judges on the Court. Generally speaking, it would require the agreement of a majority of the 11 Judges to accept the case for rehearing. If such an en banc appeal is granted, then the panel decision would be vacated and the case would have to be rebriefed and reargued before the full Court.
Another option, of course, would be to appeal the matter directly to the U.S. Supreme Court, however, it is unclear if the Court would accept the case for appeal at all. With the exception of one case that didn’t directly deal with Second Amendment issues, the Court has not accepted a case involving Second Amendment rights since the Court’s ruling in McDonald. Most recently, that included declining to hear an appeal of a decision by the full Ninth Circuit Court of Appeals that upheld a California law not very dissimilar from the highly restrictive District of Columbia law that was struck down in this case. In other cases, the Justices have declined to accept in a case involving New York State’s laws regarding carrying guns in public , another case involving a similarly restrictive New Jersey law regarding carrying concealed weapons, a 2015 case involving San Francisco’s law regulating handguns, and a 2016 decision regarding laws adopted by New York and Connecticut in the wake of the shooting at Sandy Hook Elementary School. As I’ve said in the past, this suggests that the Court is willing to let the Circuit Courts hammer this issue out for the time being. Whether they would also decline to hear this case is unclear, especially since there are some differences between this case and the previous ones that the Court declined to hear. For one thing, unlike those previous cases, in this case, the Court of Appeals has struck down the law rather than upholding it. This leads to the second difference, which is the fact that this case now makes clear that there is a split in the Circuits when it comes to the issue of the constitutionality of restrictions on the concealed-carry of weapons under the Second Amendment. Generally speaking, the existence of such a split on a Constitutional issue such as this has often been a reason for the Court to grant an appeal. Whether or not that would be the case here or not, though, is something we can’t know unless and until the matter is actually presented to the Court for consideration.
As a final option, the District could decide not to risk its chances any further in the Courts and seek to make changes to the existing concealed-carry law that would satisfy the concerns raised by the panel in its opinion. At the very least, this would mean that any challenge to a new law would have to start all over again in the District Court and the District would not be faced with the prospect of a massive change in its gun control laws in the immediate future. This is the approach that the state of Illinois took when the Seventh Circuit Court of Appeals struck down that state’s restrictive concealed carry laws in 2012. In that case, the change in the law made Illinois a “shall issue” state with regard to concealed-carry license requests, a change which has apparently not been subsequently challenged in Court.
In any case, the District has 30 days to decide what it will do in this case before the panel’s decision would go into effect.
Here is Court’s opinion: