Outside the Beltway

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

Not surprisingly, the District of Columbia is seeking review of last month's decision on its concealed-carry law by the full Court of Appeals for the D.C. Circuit.

Doug Mataconis · Saturday, August 26, 2017 · 11 comments

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