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District Of Columbia Seeks Review Of Ruling Striking Down Concealed-Carry Law

Gun Flag

It was just about a month ago that a three-Judge panel of the Court of Appeals for the D.C. Circuit struck down Washington, D.C.’s concealed-carry law on the ground that it violated the Second Amendment by placing too stringent a requirement on what must be demonstrated for a citizen to obtain a permit to carry a gun in public. After that happened, there was an open question as to what option the District of Columbia would pursue with regard to the decision in that it had the choice of either seeking to revise the law to meet the concerns expressed by the panel, seeking review by the U.S. Supreme Court, or seeking a rehearing of the ruling before the full Court of Appeals. Somewhat not surprisingly, the D.C. government has chosen to seek an en banc review by the full Court of Appeals, a move that could end up working to its advantage:

The District’s top lawyer on Thursday asked a federal appeals court to rehear a challenge to the city’s strict limits on carrying concealed firearms.

Attorney General Karl A. Racine’s decision follows a ruling last month from a three-judge panel that blocks the District’s requirement of a “good reason” to obtain a permit because the requirement prevents most residents from carrying guns in public places.

City officials say the restrictions are “common sense gun rules” needed to promote public safety in the nation’s capital. Racine wants a full complement of judges on the U.S. Court of Appeals for the District of Columbia Circuit to review the panel’s ruling against the city.

“Review by the full court is necessary due to the importance of this question, which affects the safety of every person who lives in, works in, or visits the District,” according to the new court filing. “Through their elected representatives, District residents have decided that public carrying without ‘good reason’ is inconsistent with public safety.”

he city’s permitting system remains in effect while the appeal is under review. If the court declines to revisit the panel’s decision, the order to permanently block enforcement of the “good reason” requirement would take effect seven days later.

In its 2-to-1 ruling last month, the panel found the D.C. law in violation of the Second Amendment.

“Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test,” wrote Judge Thomas B. Griffith, who was joined by Judge Stephen F. Williams.

Judge Karen LeCraft Henderson dissented, siding with the city and finding that the regulation “passes muster” because of the District’s unique security challenges and because the measure does not affect the right to keep a firearm at home.

(…)

Under the District’s law, residents who want a permit to carry a concealed firearm must show that they have “good reason to fear injury” or a “proper reason,” such as transporting valuables. The regulations specify that living or working “in a high crime area shall not by itself” qualify as a good reason to carry.

As of July 15, D.C. police had approved 126 concealed-carry licenses and denied 417 applicants, according to the police department.

The District’s requirement is similar to rules in other states, including Maryland, New York and New Jersey.

In his post earlier today at Hot Air, Jazz Shaw is skeptical of the District’s argument:

As appeals go, this one sounds rather ill founded, but since we’re talking about a Second Amendment question all bets are off these days. Still, the “we’re just different” argument should be laughed out of almost any court in the land. The District is claiming that it is “unique and [u]nlike any city, it is filled with thousands of high-ranking federal officials and international diplomats, and it hosts hundreds of heavily attended events each year, including political marches and protests.” Presumably, this translates to saying that their “unique” status means that the constitutional rights of their residents can be tossed as a matter of convenience.

Have the District’s lawyers ever left town and checked out some other cities? I’ll grant you that the concentration of international diplomats per square mile is likely higher in DC, but every major city is flush with elected officials of their own. And as far as “heavily attended events” including marches and protests go, show me a city that doesn’t have all that chaos taking place these days and I might consider moving there. But even if their argument held some sort of water, since when is population density a deciding factor in whether or not you can have your constitutional rights stripped away?

As I noted to in my initial comments about the panel’s decision last month, it seems to me that the panel majority has the better argument here and that the District’s concealed-carry law, which requires an applicant to show ”good reason” to obtain a permit, is a violation of the rights protected by the Second Amendment. In its decisions in  District of Columbia v. Heller and McDonald v. Chicago, which seem like they will withstand further review by the Court for some time to come, the Supreme Court recognized that the Second Amendment protected an individual right to own handguns for self-protection and to keep those weapons in one’s home. Given this, it seems clear that there exists a similar right to carry those weapons when outside the home. This would mean that laws that amount to a complete ban on the right to “bear” arms would likely be impermissible for the same reasons that the laws struck down by Heller and McDonald recognized a right to “keep” those weapons. While the D.C. law doesn’t fully ban concealed-carry of weapons in the District, it does place what seems like an undue burden on gun owners in terms of what they must show to obtain a permit to carry legally and provides law enforcement officials in charge of issuing the permits with far too much arbitrary power to determine what is and is not a “good reason” to grant or deny a permit. Addiitionally, I agree with Jazz that the argument that the District is somehow unique among American cities with regard to security concerns in such a manner as to justify a law that amounts to an effective ban on the right to bear arms. If that were the standard under the law, then virtually any restriction, including an outright ban on the ownership of weapons would be permissible. Thanks to Heller and McDonald, though, we know that this isn’t the case.

This doesn’t mean that there can’t be any regulation of the right to “bear” arms, of course. Justice Scalia himself noted in his majority opinion in Heller that the right protected by the Second Amendment is not unlimited and that there could be limitations on the right that would pass muster on the Amendment. Scalia’s opinion did not go into detail regarding what types of limitations this might include, of course, because that issue was not before the Court and any such discussion would have been dicta that wouldn’t necessarily bind future decisions. It’s also likely that Scalia and the majority did not wish to spell out those limitations in detail in the hope that this part of the Second Amendment issue would be hammered out by the lower Federal Courts before the Supreme Court would need to weigh in on the issue again. Indeed, the Supreme Court itself has not accepted a major Second Amendment case for review since the McDonald decision, which was handed down seven years ago.

Notwithstanding the law, though, seeking an en banc review before the full Court of Appeals is arguably a wise decision on the part of the District. While such rehearings are not routinely granted and would require a majority of the eleven member court to accept the case for review, there is reason to believe that the District’s move could prove to be successful. Of the eleven active members of the Court who would decide whether or not to accept the appeal, seven of the Judges were appointed by either former President Clinton or former President Obama and the remaining four were appointed by either former President George H.W. Bush or former President George W. Bush. Presumably, those seven appointees of Democratic Presidents would be more sympathetic to the arguments made by the District than the panel that originally heard the appeal, which was made up of two active Judges who were appointed by Bush 41 and Bush 43 and a Senior Judge who was appointed by President Reagan. (Senior Judges are eligible to be appointed to panels as needed, but cannot vote or participate in an en banc consideration of a case.) If the a majority of the full court grants the rehearing, then the panel decision will be vacated and the case will be reheard before the full Court, where the District is likely to get a more sympathetic ruling. If the full Court sustains the panel decision, then the District would have the option of seeking review before the Supreme Court and, of course, the

If the full Court sustains the panel decision, then the District would have the option of seeking review before the Supreme Court and, of course, the Plaintiff’s would have that same choice if the full Court were to uphold the District’s law. Any party seeking review of a Second Amendment case by the Supreme Court, though, would have to deal with the fact that the Court has not accepted a case for review under the Second Amendment for seven years now, and there seems to be little indication that it is eager to do so in the near future. With the exception of one case that didn’t directly deal with the 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 hear a case involving New York State’s laws regarding carrying guns in public , another case involving a similar 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. Additionally, it’s worth noting that each of the concealed-carry cases that the Court declined to hear involved appeals from decisions upholding municipal or state laws that restricted the ability of citizens to obtain a permit to carry a weapon. In some of those recent cases, a handful of the Court’s conservative Justices have filed dissents arguing that the Court should have agreed to hear the appeal. Since all it requires for the Court to accept a case for review is a vote of four Justices, this suggests a real reluctance on the part of the Justices to wade into this territory at this time. How long this will last, and whether it will continue if President Trump is able to appoint more Justices to the Court, remains to be seen.

Here is the District of Columbia’s Petition for Rehearing in this case:

Wrenn v, District of Columbia Petition by Doug Mataconis on Scribd

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Gustopher says:

    Either the old west towns of Tombstone, Dodge City, etc were completely out of step with the constitution and the founders intent when they barred citizens from carrying weapons in town, or the current state of gun rights has wildly expanded beyond what is constitutionally protected.

    Not being a lawyer, I don’t know which.

    Like or Dislike: Thumb up 1 Thumb down 0

  2. gVOR08 says:

    @Gustopher:

    Not being a lawyer, I don’t know which.

    I don’t know either, but I have a suspicion it’s another gift from the Federalist Society. This seemed to be pretty settled law for a hundred years, then it wasn’t.

    Like or Dislike: Thumb up 2 Thumb down 0

  3. Mu says:

    Not sure the Tombstone argument is comparable, the town itself was about a city block in size, and you picked up your gun on your way out. The vast majority of people didn’t live in town and as such wasn’t affected. The DC ban affects 700,000 people, the similar NYC one 7 M.

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  4. Just 'nutha ig'nint cracker says:

    Normally, I wouldn’t agree with Jazz Shaw (or Doug on these questions for that matter), but it occurs to me that Jazz is right, the sort of target-rich environment that D.C, constitutes (no pun intended) simply screams for every bozo, whack job, klansman, patriot, anger-issues patient, and anyone else who wants to “pack heat just because” be afforded the right to engage in whatever phallic symbol fantasies and rituals are available to the citizenry of this great nation.

    MAGA!!!

    Like or Dislike: Thumb up 1 Thumb down 0

  5. Jack says:

    @Just ‘nutha ig’nint cracker:

    simply screams for every bozo, whack job, klansman, patriot, anger-issues patient, and anyone else who wants to “pack heat just because” be afforded the right to engage in whatever phallic symbol fantasies and rituals are available to the citizenry of this great nation.

    Then don’t let Democrats get concealed carry permits. It’s that simple.

    Like or Dislike: Thumb up 0 Thumb down 4

  6. HarvardLaw92 says:

    @Jack:

    Not to rain on your parade (I suspect that the gun fetishists threw a party over this ruling), but approval for an en banc rehearing is likely, as is reversal. It all boils down to one unfortunate thing for you guys:

    The active constituent of the DC Circuit consists of 11 judges, appointed by:

    1 – GHW Bush

    3 – Clinton

    3 – GW Bush

    4 – Obama

    One of those GW bush appointees, Janice Rogers Brown, retires in 5 days.

    I think you can do the math.

    Have a nice day :-)

    Like or Dislike: Thumb up 1 Thumb down 0

  7. Tyrell says:

    @Gustopher: But those towns also had some lawman that kept things under control – such as Wyatt Earp.

    Like or Dislike: Thumb up 0 Thumb down 2

  8. CET says:

    @gVOR08:

    My sense of the history there is that when gun control was mostly about keeping guns out of the hands of black Americans, a large part of the political right wing was fairly supportive of gun control. It’s not clear to me exactly when, but at some point, guns seem to have become a proxy issues for the rural vs. urban culture wars instead.

    As the GOP base becomes more and more like the old southern wing of the democratic party (and with carry permit applications on the rise among minorities and women), I’ll be curious if the political right comes back around to supporting gun control laws that disproportionately affect minorities…

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  9. gVOR08 says:

    @CET: St. Ronald of Bel Air and Republicans generally took to supporting gun control when the Black Panthers started to open carry. You’re right, guns do seem to have now become tribal totems and a front in the culture wars.

    The courts would not allow a gun bill allowing racial profiling. But if Rs get to appoint enough SCOTUS justices that could change. Rs can get quite creative when it comes to wink and nod discrimination.

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  10. CET says:

    @gVOR08:
    I think the most likely avenue for racial discrimination when it comes to gun control is ‘may issue’ laws for permits. If local law enforcement has broad discretion to decide who can and can’t be armed, I would expect those decisions to reflect local biases.

    If anything, conservative originalist judges are likely to be an obstacle to laws that grant broad local power to deny inhabitants the right to bear arms. It’s worth noting that Otis McDonald (the plaintiff in McDonald vs. The City of Chicago) was a black retiree who wanted to buy a handgun but was told he couldn’t because he lived in the city of Chicago.

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  11. Tyrell says:

    I don’t know how the crime rates of D.C. compare to other cities like Chicago or Oakland. Law abiding citizens who are living in these cities where anarchy reigns should be allowed to carry concealed or uncongealed weapons. I would bet those judges are carrying: who can blame them ? Or they have bodyguards.
    Look at the numbers in Chicago of people who are shot every weekend.

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