D.C. Court of Appeals Strikes Down "may issue" Concealed Carry Law

D.C. requires gun owners to have a “good reason” to obtain a concealed carry permit.

The U.S. Court of Appeals for the D.C. Circuit struck down the regulation as too restrictive in a 2-1 decision, The Washington Post reported.

“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,” Judge Thomas B. Griffith wrote, according to the paper.

“Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test.”

 From the decision:

Our first question is whether the Amendment’s “core” extends to publicly carrying guns for self-defense. The District argues that it does not, citing Heller I’s observation that “the need for defense of self, family, and property is most acute” in the home. Id. at 628. But the fact that the need for self-defense is most pressing in the home doesn’t mean that self-defense at home is the only right at the Amendment’s core. After all, the Amendment’s “core lawful purpose” is self-defense, id. at 630, and the need for that might arise beyond as well as within the home. Moreover, the Amendment’s text protects the right to “bear”as well as “keep”arms. For both reasons, it’s more natural to view the Amendment’s core as including a law-abiding citizen’s right to carry common firearms for self-defense beyond the home (subject again to relevant “longstanding” regulations like bans on carrying “in sensitive places”). Id. at 626.

This reading finds support in parts of Heller I that speak louder than the Court’s aside about where the need for guns is “most acute.” That remark appears when Heller I turns to the particular ban on possession at issue there. By then the Court has spent over fifty pages giving independent and seemingly equal treatments to the right to “keep” and to “bear,” first defining those “phrases” and then teasing out their implications. See id. at 570-628. In that long preliminary analysis, the Court elaborates that to “bear” means to “‘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.’” Id. at 584 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). That definition shows that the Amendment’s core must span, in the Court’s own words, the “right to possess and carry weapons in case of confrontation.” Id. at 592 (emphasis added).

From the examples of Peruta in the Ninth Circuit, the Maryland ban on “assault weapons” in the Fourth Circuit, and the 11th Circuit decision to uphold the chilling of Second Amendment rights by doctors as agents of the government,  the District of Columbia will ask for an en banc ruling from the entire D.C. appeals court.
  
Senate Democrats, lead by Harry Reid, used the “nuclear option” to stack the D.C. Court of appeals with President Obama’s appointees exactly for such situations as this.  The Republicans recently returned the favor by using the “nuclear option” to confirm Supreme Court justice Gorsuch.

It seems that any upholding of Second Amendment rights is appealed en banc, which is to say, to the entire court. An en banc appeal may not be granted in D.C. It requires a majority vote of the D.C. non-senior judges. The D.C. Court refused en banc appeals by the D.C. attorney general for two previous Second Amendment cases in recent years.

If the court refuses to grant the en banc request, or if the case is heard en banc, and if the D.C. circuit upholds the three judge panel, the case will be appealed to the Supreme Court.

The Supreme Court has been reluctant to hear Second Amendment cases. Wrenn is a case that upholds the Second Amendment. The previous cases denied by the Supreme Court upheld infringements on the right to bear arms.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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