Six years ago, the Supreme Court handed down its decision in District of Columbia v. Heller in which it struck down the District of Columbia’s On Saturday, a Federal Judge issued a ruling striking down the District of Columbia’s long standing gun control law which effectively banned nearly all residents from owning a handgun kept in their private homes. It was, in many respects, the first significant ruling that the Court had handed down on the Second Amendment in the more than two centuries since that Amendment had been ratified as part of the Bill of Rights. Previous Second Amendment rulings from the nation’s highest court dealt with very limited issues such as the Federal Law that tightly regulates ownership of automatic weapons that has been in place since the 1930s, and none of those cases dealt with the core question that Heller presented, which was whether or not the Amendment protected an individual rather than some kind of collective right. In a 5-4 decision, the Court found based on the history of the Amendment that it did, in fact, protect an individual right and that, based on that fact, the District’s law effectively banning handgun ownership was unconstitutional. Four years later, in McDonald v. Chicago Housing Authority, the Court held that the Second Amendment also applied to the states, an issue that it had not ruled upon in the eighty years since the Incorporation Doctrine had first been developed. As a result, in that case, the Court struck down a similar Chicago law barring handgun ownership.
The holdings in Heller and McDonald, while they were groundbreaking in several respects, were limited to a very narrow question regarding ownership of handguns that are kept inside a person’s home. Because the issue was not before it in either case, the Court did not rule on the question of whether the Second Amendment extended to the right to carry a gun outside the home, or to what extent a state or local authority can regulate that right. In the years that have followed, though, several Federal Courts have ruled on the issue. In 2013, in Moore v. Madigan, the 7th Circuit Court of Appeals, struck down an Illinois law that barred anyone from carrying a concealed weapon regardless. Rather than appealing the decision, the State of Illinois chose to amend its laws to allow residents to obtain a concealed carry permit upon meeting certain criteria, including the completion of a state-approved training course. Earlier this year, in Peruta v. San Diego, the Ninth Circuit Court of Appeals struck down a San Diego law that required a person requesting a concealed carry permit to show “good cause” for granting the permit. As I noted at the time, after Heller and McDonald were decided it was inevitable that the issue of how the Second Amendment applies outside the home would come before the Federal Courts, and that eventually the Supreme Court will have to deal with that issue.
Yesterday, another one of the cases that may eventually be the one that the Supreme Court will end up considering resulted in a ruling by a Federal Judge finding that the District of Columbia’s blanket prohibition on the carrying of handguns in public is unconstitutional:
A federal judge has declared that one of the District’s principal gun control laws is unconstitutional and ordered that its enforcement be halted.
The ruling by Judge Frederick J. Scullin Jr., made public Saturday, orders the city to end its prohibition against carrying a pistol in public.
It was not clear Saturday night what immediate effect the order would have.
The order was addressed to the District of Columbia and Police Chief Cathy Lanier, as well as their employees and officers and others “who receive actual notice” of the ruling. But it could not be determined Saturday night who had received notice. Also unclear was whether the city would appeal and what effect that would have on the enforcement ban.
Legal sources said Saturday night that in general all parties to a case must be duly informed of a ruling and given the opportunity to appeal before it takes effect.
The D.C. attorney general represented the city. A spokesman for the attorney general’s office said he had not seen the order and declined to comment. However, he said city lawyers would study the ruling and consider their options.
A spokeswoman for the police department said she was not aware of the ruling.
The case was heard by Scullin, a senior U.S. District judge who normally sits in New York. In his ruling, Scullin said that, based on recent decisions, “there is no longer any basis” to conclude that the city’s “total ban on the public carrying of ready-to-use handguns outside the home is constitutional.”
More detail from Lyle Denniston:
In Saturday’s ruling, Senior District Judge Frederick J. Scullin, Jr., who sits in Syracuse, N.Y., ruled that the Second Amendment right does reach beyond the home, finding that to be a natural outgrowth of the fundamental right the Supreme Court had created six years ago. He barred city officials from enforcing a ban — first imposed in late 2008.
At one point, the city government in the nation’s capital had a law permitting the police chief to issue licenses to carry handguns to individuals. On December 16, 2008, the city council and the mayor voted to take away that authority. As a result, Judge Scullin noted, “the District of Columbia lacks any mechanism to issue handgun carry licenses to individuals.”
In nullifying that ban, the judge relied upon rulings by the U.S. Courts of Appeals for the Seventh and Ninth Circuits, striking down public-carry bans in Illinois and San Diego County, respectively.
Four individuals, joined by a gun rights advocacy group, the Second Amendment Foundation, had challenged the District of Columbia ban in a lawsuit filed in August 2009. A month later, their lawyers filed a motion seeking to have the case decided summarily — that is, without a trial. The District’s lawyers filed a competing motion for such a ruling, in their favor. Those are the motions that Judge Scullin has now decided, ruling for the challengers and against the city.
After the case was filed, it moved at a slow pace in the federal district court in Washington, with another judge working on it. Finally, in a move to ease docket congestion in that court, Chief Justice John G. Roberts, Jr., in July 2011 reassigned it and other cases to Judge Scullin, who took over the gun rights case ten days later.
The summary judgment motions had been set for a hearing in late August 2012, but that was cancelled due to a “conflict in the court’s calendar.” The hearing was reset for, and eventually held on, October 1 of that year. Judge Scullin at that point took the case “under advisement.”
In August of last year, the challengers filed a motion asking the judge to expedite the case, noting that “this case is now in its fifth year before this court.” When no action resulted, the challengers last October asked the U.S. Court of Appeals for the District of Columbia Circuit to order Judge Scullin to decide the case. That plea was denied in a brief order last December 10, expressing confidence that the judge would act as soon as he could.
In the meantime, lawyers for the challengers and for the District of Columbia had continued to file a series of notices to the judge, about other court rulings bearing on the Second Amendment question. The last action that the judge took, before making his final ruling, came last March, when he turned down the challengers’ request to strike one of the filings by the District of Columbia citing another court’s work. (That motion to strike had been pending since May 2012.)
In his final ruling, Judge Scullin declared that the Second Amendment right to carry a gun outside the home applies not only to residents of Washington, D.C., but also to visitors to the city. One of the individuals who sued was not a resident. The ruling applies both to open and concealed carrying of handguns in public.
In his decision, Judge Scullin relied strongly on the Ninth Circuit’s opinion in Peruta:
As the court noted in Peruta, “[t]he Second Amendment secures the right not only to ’keep’ arms but also to ‘bear’ them[,]” Peruta, 742 F.3d at 1151; and, as the Supreme Court explained in Heller, “[a]t the time of the founding, as now, to ‘bear’ meant to ‘carry[,]’” Heller, 554 U.S. at 584. “Yet, not ‘carry’ in the ordinary sense of ‘convey[ing] or transport[ing]’ an object, as one might carry groceries to the check-out counter or garments to the laundromat, but ’carry for a particular purpose confrontation.’” Peruta, 742 F.3d at 1151-52 (quoting [Heller, 554 U.S. at 584]). According to the Heller majority, the “natural meaning of ‘bear arms’” was the one that Justice Ginsburg provided in her dissent in Muscarello v. United States, 524 U.S. 125 (1998), that is “‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Heller, 554 U.S. at 584 (quoting Muscarello, 524 U.S. at 143, 118 S. Ct. 1911) (Ginsburg, J., dissenting) (quoting Black’s Law Dictionary 214 (6th ed. 1998)).
Furthermore, “‘bearing a weapon inside the home’ does not exhaust this definition of ’carry.’ For one thing, the very risk occasioning such carriage, ‘confrontation,’ is ‘not limited to the home.’” Peruta, 742 F.3d at 1152 (quoting Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012)). Moreover, it is beyond dispute that “the prospect of conflict at least, the sort of conflict for which one would wish to be ‘armed and ready’ is just as menacing (and likely more so) beyond the front porch as it is in the living room.” Id. Thus, “‘[t]o speak of “bearing” arms within one’s home would at all times have been an awkward usage.’” Id. (quotation omitted). In addition, the Heller Court stated that the Second Amendment secures “the right to ‘protect[] [oneself] against both public and private violence,’ . . . thus extending the right in some form to wherever a person could become exposed to public or private violence.” United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011) (Niemeyer, J., specially concurring) (quoting [Heller, 128 S. Ct.] at 2798, 2799). Moreover, the Heller Court emphasized that the need for the right was “most acute” in the home, Peruta, 742 F.3d at 1153 (citing Heller, 554 U.S. at 628, 128 S. Ct. 2783), “thus implying that the right exists outside the home, though the need is not always as “‘acute.’” Id. (citing McDonald, 130 S. Ct. at 3044 (2010) (“[T]he Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.”)). However, Heller also pointed out that “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” is presumptively lawful. Heller, 554 U.S. at 626. Finally, “both Heller and McDonald identif[ied] the ‘core component’ of the right as self-defense, which necessarily ‘take[s] place wherever [a] person happens to be,’ whether in a back alley or on the back deck.” Peruta, 742 F.3d at 1153 (citing Moore, 702 F.3d at 937 (“To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.”)) (other citation omitted).
This Court agrees with the Ninth Circuit’s statement in Peruta that “[t]hese passages alone, though short of dispositive, strongly suggest that the Second Amendment secures a right to carry a firearm in some fashion outside the home.” Peruta, 742 F.3d at 1153.
(…)
[A]s the Peruta court pointed out, “[u]nderstanding the scope of the right is not just necessary, it is key to [the court’s] analysis [because,] if self-defense outside the home is part of the core right to ‘bear arms’ and the [District of Columbia’s] regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-end scrutiny can justify [the District of Columbia’s] policy.” Id. at 1167 (citing Heller, 554 U.S. at 634, 128 S. Ct. 2783 (“The very enumeration of the right takes out of the hands of government even the Third Branch of Government the power to decide on a case-by-case basis whether the right is really worth insisting upon.”)).
As a temporary matter, the District of Columbia Police have announced they will not enforce the ban, at least not against people who are validly allowed to carry under the laws of other states, and David Kopel summarizes what could happen next:
Nothing in the District Court’s opinion invalidates the D.C. ban on magazines holding more than 10 rounds. Nothing in the opinion addresses the numerous federal and D.C. laws which prohibit carry in a huge number of locations within the District-such as most federal buildings, lots of federal property, as well as schools and colleges. (The D.C. “school” ban even encompasses a school of cosmetology whose students are all adults.) Under a 2009 federal statute, National Parks must follow the arms-carrying policies of their host state. The National Park Service regulation implementing this statute includes the following exemption to a general ban on weapons in National Parks. “(h) Notwithstanding any other provision in this Chapter, a person may possess, carry, and transport concealed, loaded, and operable firearms within a national park area in accordance with the laws of the state in which the national park area, or that portion thereof, is located, except as otherwise prohibited by applicable Federal law.” 36 C.F.R. § 2.4. Thus, it might arguably be lawful to carry a concealed handgun at the Jefferson Memorial, if you have a handgun carry permit from your home state (or if you a D.C. resident with a registered handgun).
(…)
What will the D.C. government do next? Immediately, the Attorney General will ask for a stay while it decides whether to appeal. Anything can happen on appeal, but over the long term, it is difficult to see how D.C. could persist as the only place in the nation which completely forbids exercise of the constitutional right to bear arms. As the case worked its way to the Supreme Court, absolute obduracy by D.C. would increase the likelihood of corrective action by Congress. The House has already passed legislation to reform D.C.’s unusually repressive limits on gun ownership and its unique and unnecessarily cumbersome gun registration system. (And those restrictions, unlike the carry prohibition, had the advantage of having been upheld so far in the courts.)
More prudently, the D.C. government could adopt a system allowing for licensed carry. One approach would to copy the laws of Maryland, which allows anyone to apply, but very few to receive a concealed carry permit. The Maryland statute was declared unconstitutional by a Federal District Court, but upheld by the Fourth Circuit Court of Appeals, in Woollard v. Gallagher. (For which I wrote an amicus brief on the losing side, for the nation’s two major law enforcement training organizations.)
Another approach would be to follow the approach of Virginia, and of the large majority of American states, by setting up a carry permit system which requires fingerprint-based background checks, plus safety training, and allows law-abiding adults to receive permits without having to prove that they have a special need. The outer limit on how restrictive such a system can be is probably provided by the 2013 Illinois law to set up a carry permit system after the 7th Circuit (in an opinion by Judge Richard Posner) ruled unconstitutional the Illinois carry ban, in Moore v. Madigan & Shephard v. Madigan. (Gura was the winning attorney on Moore; Shephard was a NRA case.) The Illinois system is rough around the constitutional edges (e.g., allowing some permit denials which do not provide a reason), but with some smoothing, the Illinois model would be likely to provide a constitutional safe harbor for the D.C. government.
Judge Scullin’s decision, although inexplicably delayed for far too long a period, strikes me as being largely correct. Given the holdings in Heller and McDonald that the Second Amendment covers a right to own a handgun for purposes of self-defense inside the home, then it becomes next to impossible to support the argument that this right does not extend outside the home to cover a right to carry a handgun for the same purposes. The arguments for one are essentially the same as the arguments for the other, with the exception being the extent to which the state can impose regulations on the right to carry in public. The Illinois law enacted in the wake of Moore, which requires some 16 hours of training prior to the carry permit being granted, has yet to be tested in court, for example, but it most likely has a better chance of surviving a court challenge than a blanket ban on a right to carry or a law like the one at issue in Peruta, which exists in other parts of the country, that essentially leaves the issuance of a carry permit up to the whim of local officials. At the same time, though, it seems clear that the regulations that a state or locality would impose cannot be so burdensome that they would effectively deny the right to carry by making it nearly impossible for the average citizen to obtain a permit to carry, assuming one is required under the applicable law, would most likely be unconstitutional.
No doubt, this decision will set off the usual round of debates about gun control. However, I would submit that just as the Court was correct in Heller and McDonald to find that the Second Amendment included the right of individuals to own a handgun to protect themselves in their own, it seems axiomatic that it also includes some type of right to carry a gun in public for the same purpose. That doesn’t mean that the right is unlimited, of course. Even in Heller, Justice Scalia states clearly in his majority opinion that the Second Amendment most assuredly does not stand for the proposition that all regulations on firearms ownership are unconstitutional, and that would obviously apply to a right to carry as well. What the limits of the power of states and localities to regulate that right in the interest of public safety actually are is something that will have to await future court decisions, but the fact that some such regulations are theoretically permissible does not mean that the right itself doesn’t exist and should not be protected.
Here’s the opinion:
