D.C. to Appeal Court Decision Allowing Right to Bear Arms Outside the Home

                       Legal Carry in D.C., However Briefly

In July, Judge Frederick Scullin Jr. ruled that the District of Columbia’s ban on the carry of weapons outside the home for self defense was unconstitutional under the Second Amendment. For a brief few days, the right to keep and bear arms was respected in the District of Columbia. The judge then granted a stay until October 22, for the District to pass a new law that would meet constitutional requirements. The D.C. government passed a new law, one of the most restrictive in the nation, one that Alan Gura, counsel for the plaintiffs, characterized as a “practical destruction of the right to bear arms” . . .

The law gives the police chief power to reject and restrict any applicant’s ability to carry outside the home for self defense.    Gura challenged the new legislation, but Judge Scullin has yet to make a decision on it. When the District asked that Judge Scullin reconsider his ruling, he suggested that the government attorneys had not read his original decision, a rather strong rebuff.

Now the District has decided to appeal the original ruling overturning the the concealed carry ban to the US Court of Appeals for the District of Columbia. This is the same court that Harry Reid recently used the “nuclear option” to pack with Obama appointees.  It shall be very interesting to see how that court rules, and to see how Judge Scullin rules on the D.C. government’s attempt to create a de facto bureaucratic ban on carrying outside the home to take the place of the outright ban. Stay tuned.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Gun Watch

comments

  1. avatar JSIII says:

    So basically this will now be going to the SCOTUS; I am guessing DC is gambling that Obama will have time to replace one of the justices who voted with the majority for the McDonald or Hellar case.

    1. avatar Gov. William J. Le Petomane says:

      Unless he sends Seal Team 6 after one of the justices, the only one going anywhere would be Ginsberg.

      1. avatar Jus Bill says:

        And I’m thinking she must be worried about her health or mental acuity, because she’s been all over the MSM recently saying she won’t retire until she’s embalmed.

    2. avatar Dave357 says:

      This could sit in the recently packed Court of Appeals for years before getting to SCOTUS. And even otherwise, SCOTUS may decline to review the case, as they have done with several may issue cases recently.

      1. avatar Publius says:

        SCOTUS won’t touch this with a 10 meter cattle prod. They’ve finished ruling on the Second Amendment because if they heard any more cases, they would either be forced to repeal all gun control laws or admit that they don’t give a damn about the Constitution.

        1. avatar uncommon_sense says:

          ^ This! This hits the nail on the head.

        2. avatar barnbwt says:

          They do seem to have allowed themselves to be boxed into that position by their rulings, of late (the only thing keeping Heller from reaching that conclusion was Scalia’s inclusion of that unsubstantiated “reasonable restrictions” line, presumably to sway the fifth vote to his side). That they’ve allowed the Appeals Court to become as fragmented as it is regarding May Issue is strong evidence that they are not ready to walk that path yet (or ever). But maybe Ginsberg will have a stroke that finally reconnects the logic center of her brain and allows her to form or side with legally-supportable arguments at long last.

        3. avatar Dave357 says:

          No, they don’t have to repeal all gun control laws. The Heller and McDonald decisions did not overturn tough NYC licensing rules, and a decision affirming the right to bear arms would still allow for stringent licensing procedures. What it would not allow is requiring special justification for wanting a carry permit. And that seems to be enough to scare off even the current SCOTUS.

        4. avatar Tom Jefferson says:

          No. Scalia, who wrote the majority opinion in Heller was careful to hedge his bet by saying that, and I’m paraphrasing, just because we said the 2nd Amendment actually means what it says, doesn’t mean that “reasonable restrictions” can’t be enacted for the public good. This leaves the door open for future, more restrictive Supremes to “reinterpret” the 2A’s scope.
          John Marshall screwed us all when he tricked Jefferson into accepting the idea that the Supreme Court should have the final say on what is, and is not, Constitutional. That prerogative has always belonged squarely with the States.

        5. avatar John in Ohio says:

          @Tom Jefferson: IMHO, rights won’t even be marginally secure for future generations until that usurpation of power is corrected. That correction won’t occur without mass civil disobedience by whole states or straight up brute force by states; American Civil War II.

    3. avatar Tom Jefferson says:

      Does it concern anyone else that the McDonald and Heller cases were “5 to 4” decisions? It is extremely worrying to me that 4 Justices of the Supreme Court cannot correctly interpret the meaning of “shall not be infringed.”
      Yep, Jefferson really screwed up when he allowed Marshall to get away with the whole “judicial review” fiasco….. I mean, who has ever heard of businesses that come together and write a contract in order to form a conglomerate, allowing the “hired help” to decide if their employers are in breech of that contract? Insanity.

  2. avatar Sgt Frank says:

    If there is anyplace in this country you need to carry…..it is Washington DC……the place is a pit of nothing but gang bangers…….but you never hear a thing about them and the crime rate…..just like Chicago.

    1. avatar Jus Bill says:

      Because the gentry there is insulated from the common rabble. By armed bodyguards. No irony there.

    2. avatar Mike says:

      I don’t know about DC, but those of us in the Chicago area know damn well about the gang bangers and violence in Chicago. Problem is, the voting populace in the city (and therefore, the state) is too low info to realize it might be a good idea to be able to protect yourself and they continually elect the same corrupt politicians who are afraid of an armed public and continually blame guns for thug behavior.

      For the most part, the ones who don’t live in the ghettoes don’t think much about it because the crime, until recently, was always contained on the South and West sides, those on the North side and by the lake feel safe. That has begun to fall apart as the bangers have spread outside their neighborhoods, but you won’t convince the artsy, city crowd that you need to protect yourself, they don’t typically get the desire for self reliance, after all, they wait around for trains and busses to take them everywhere, have groceries delivered, etc.

  3. avatar Tom in Oregon says:

    The seat of our own government, infringing on the core of our rights.
    Wasn’t there a group of guys warning us about exactly this a bit over 200 years ago?

  4. avatar BigDinVT says:

    The tragedy here is that once a SC ruling results in a continued ban on RKBA in DC, it will be next to impossible to get it overturned.

    It’s also a tragedy and a travesty that the very same people “we’ve” elected (I say we in quotes because *I* didn’t vote for any of them) to protect our freedoms are the same ones actively trying to tear them down.

    Despite the obvious, our citizens still allow their perspective to be expropriated by the unions, democratic party and the liberal press. It is truly disheartening that our country has sunk so far in to depraved indifference to their freedoms.

    1. avatar Vhyrus says:

      The four boxes in order: soap, ballot, jury, ammo.

      Currently, were rapidly burning through box 3. Guess what comes next.

    2. avatar M J Johnson says:

      I’m a proud member of two unions and hope to be a member of a third some time next year.

      Anyone who thinks the unions have sway over politicians of any stripe is wrong. Sorry. Fat cats and corporations have that power, not the unions. But the fat cats and corporations love making unions the bad guys because they can’t exploit their workers while the unions are there.

      1. avatar Jus Bill says:

        Sorry dude, but you couldn’t be more wrong. There are plenty of union “fat cats” to see if you just look upward. But don’t let them catch you doing it – that could be painful.

      2. avatar uncommon_sense says:

        “Anyone who thinks the unions have sway over politicians of any stripe is wrong.”

        Au contraire! The teacher’s union in my state is the only reason that my state still criminalizes concealed carry in schools.

        1. avatar BigDinVT says:

          My wife is a member of a union – by necessity not choice. She received a letter from her union the other day telling her which politicians to vote for in the upcoming election; all of them “left leaning”. She threw the letter away.

      3. avatar Yellow Devil says:

        Wow, your comment came out of left-wing field. I don’t know what it has to do with the article.

  5. avatar stateisevil says:

    Why does no one sue for open carry in these restrictive places? Historically that has been the unlicensed right to bear arms, and we have a federal court saying so as late as 2013 in the Colorado post office case. Why do we want privilege cards so badly? Legalize open carry and the anti gun legislators will eventually pass a shall issue concealed bill to get people to hide their scary evil guns.

    1. No one is suing *only* for open carry in these suits. The reason is simple: to move the ball along. Currently, the Supreme court has not ruled on carry outside of the home, though it is implied in the Heller ruling. Getting the court to rule that there is a right under the second amendment is the first step. Then you can chip away at infringements on that right.

      The problem for *only* going for unlicensed open carry is that there is a pretty good chance that the court will refuse to hear the case. There is also precedent that states may prohibit one or the other type of carry. If you attempt to limit yourself to one type, the opposition can say, “we allow the other type, so the right is not significantly burdened”.

      At least that is how I understand the strategy.

    2. avatar John in Ohio says:

      It’s because people have foolishly bought into the notion that they can restore rights incrementally, stateisevil. It generally doesn’t happen like that. What a people end up with is a compromised set of privileges in place of rights. The American Colonists knew that they could never achieve their vision incrementally. That had been the process in Europe since the beginning and they realized it didn’t work. The reason incremental restoration of rights is more likely to fail than not is because government is relatively immortal compared to the individual. Each individual has a limited lifespan. As each generation ages and dies off, new generations must re-learn many things and organize before challenging government’s usurped authority. Government merely needs to infringe and then hold the line for a few generations until that infringement becomes normalized. People might win or get thrown a bone here and their by government but in the overall tally, individual rights get the shaft.

      When the Supreme Court usurped the power of Judicial Review early on in our nation’s history, individual rights were destined to be fvcked over in the long run. The view is growing that only mass civil disobedience and/or frank rebellion has any hope of meaningful and lasting restoration of our individual rights.

      1. avatar Scott P says:

        + 1 million

        Best I heard against the incremental approach.

  6. avatar M J Johnson says:

    Something tells me that SCOTUS will, indeed, hear the DC case if it goes that far.

  7. avatar 2maik7 says:

    “the nuclear option”, haha. You mean the option that never should have been necessary? Under the Constitution, whether the President happens to be Republican or Democrat, it is the job of the President to nominate and fill judicial seats. That job should not be hindered in the record breaking manner that this Senate has done. Some times the people will elect a President that you dont like, get over it. That doesn’t mean that you should do everything you can to sabotoge any and every thing that that President does, especially in times of national crisis, like The Great Recession, just because you want to get your way on certain issues. Like holding the full faith and credit of the U.S. hostage in order to get your demands met. Reagan had a scolding speech for congress critters who did such a thing and there wasn’t nearly as much on the line. This partisan BS and complete ignorance directed at this President, who I don’t particurlary like by the way, has brought our legislative processs to a halt. So much so that our veterans were threatened, our economy was held hostage for partisan ends, and the job of filling judicial seats has been impeded in a record breaking manner. And the past 2 congresses have broken records for doing absolutely nothing, even when it was required.

    I don’t care for this President most of the time but what I do care for is our Republic and our process under the Constitution. So the ‘nuclear option’, the same thing the Republicans threatened in the eighties, was more than justified. The people elected him, get over it, let him do the essential parts of his job. And don’t give me this resistance BS because the same people who do likely screamed bloody murder when the democrats did the same thing to Bush but to a lesser degree.

    Now you can fight your cognitive dissonance in the same way I did ,when I was a die hard liberal/democrat(if you need those labels), or you can try to take a step outside of yourself, recognize and disregard your partisanship for the good of the country, recognize that you aren’t right about everything, and embrace the reason, logic, enlightenment values that founded the model for western society(the U.S.), and the legacy of thought that our Founders and their influences left us. Or you can keep whining like you have a monopoly on truth and anyone else is a traitor to the complete destruction of our republic. I know there will be rationalizers who refuse self introspection but oh well. Think hard!

    This B.S. partisanship and the ignorant conspiracy theories with no basis in reality are tearing our country apart. Unite or die people!

    1. avatar gloomhound says:

      I bet I know how you vote.

    2. avatar Chip Bennett says:

      You’ve read Article Two of the constitution, yes? You know, the part that includes this clause:

      He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

      So, in your world, advice and consent are meaningless, because I won?

      1. avatar Jay says:

        Consent means a vote, up or down. McConnell preventing a vote means hijacking the Article 2 because team elephant cannot mentally handle the idea that a majority of the senate would consent to the nominations.

        Remember, the tactic of using unending talking began as a loophole in senate rules. It is not and never has been part of the constitution.

        IMHO, the most important thing to examine regarding the judicial system is not whether some random judge X was put in by team donkey or team elephant, but rather it is whether that judge feels that the people must adhere to the system or the system must serve the people. That’s a trait that isn’t tied to being either liberal or conservative, or to either party. Judges, by the nature of their job as a cog in the larger system, are highly susceptible to the idea that the people (as a whole) are only appropriately able to participate as cogs in the system. They conveniently ignore the options of things like an article 5 national convention, because such a thing is possibly an across-the-board redesign of the system in which they are comfortable. That also means they actively oppose even the idea that the population (as a whole) has the power to do a complete rebuild of the system from scratch, even though that is exactly what happened TWICE – once in 1776 with the articles of confederation and again in 1789 when the confederation was dumped and the constitution was made.

        Like I said, this “Part of the system, just a cog in the machine” mentality isn’t tied to team donkey or team elephant, it happens to liberal justices (stevens) and conservative justices (scalia), which means it’s a problem we all have in common.

      2. avatar Mark N. says:

        For nearly two hundred years, appointment of judges and justices to the various federal courts was a nonpartisan affair. Although candidates usually came from the President’s party, the Senate almost always approved nominees unless there were serious questions about the nominee’s fitness to serve as a judge. Which means that they did a background investigation and sought the opinions of his colleagues and members of the bar/national bar association, and with no red flags, the nomination would be approved. Now it is all about a political litmus test. Any written opinions and judgments of a candidate are scrutinized, and the examination before the Senate is best described as a gauntlet full of mines. As a result, most of the federal courts–if not all them–are understaffed with judges, judges are encouraged to take “senior status”, which means that they still have to work, but with a smaller case load. And as the population increases, so does the case load, with no relief in sight. The political gamesmanship from both sides of the aisle threatens the ability of the courts to continue to function.
        And just what is the “nuclear option”? It is a Senate rule that says that a vote of the majority can cut off a filibuster–in a day and age where it is no longer necessary, under the rules, to actually speak and bring the proceedings of the body to a screeching halt. In other words, it allows a vote, up or down, on any given candidate, rather than interminable and detrimental delay.

    3. avatar The Trouble with Timbo says:

      Well guess what? Our elected rēpresentatives get a vote too

  8. avatar Dirk Diggler says:

    If all goes well next week, then unless Ginsberg drops soon, janaury 2015 will force Barry Soetoro to do something different on nominees

    #GOPrevolution

    1. avatar barnbwt says:

      Judging by what I’ve seen of the man’s character and tactics so far, I strongly suspect he’ll take his marbles and go home. I seriously think he’d leave the Court short a justice (i.e. worthless for rendering decisions in all likelihood) than put up somebody he didn’t think would be friendly enough to his side. Exact same strategy we’ve already seen play out in the Senate, but applied to the courts. Not quite as damaging as the court packing that has been done in the short term, but probably even more dangerous if it drags on for two whole years.

  9. avatar Pascal says:

    If they win on Appeal that will be shining example that the law no longer matters. Simple stack the courts and throw away the Constitution and any law.

  10. avatar Mark N. says:

    I am surprised that D.C. will appeal. It has nothing to gain. I don’t see how it can possibly argue that it is a proper exercise of the governing authority to ban all firearms in public in an entire city–which is what the old law was. They could delay much longer by forcing plaintiffs to litigate the new law, and then the changed law after judicial intervention, and so on and so forth, just as Chicago did and has done after McDonald. Personally, I don’t think their new law passes muster either, but it has good company in the various laws in NY, NJ, and Maryland that have withstood scrutiny to date (and that the Supreme Court declined to review).

    1. avatar Dave357 says:

      The judge will be holding a hearing on Nov 20. If he were to declare that their new law does not meet the constitutional requirements, assuming he has the authority to do that, would DC not be in a pickle unless it appealed while it could?

      1. avatar Dave357 says:

        It could also be that they don’t expect to lose at SCOTUS. If SCOTUS is not willing to recognize the right to bear arms in public, as seems to be the case, then a no issue statute is as legitimate as a may issue one. So, DC will win on appeal in a recently packed circuit, and then SCOTUS will either not grant cert or take the case and destroy the right to bear altogether. DC may rate the chances of SCOTUS taking the case and ruling for the right to bear low enough to be worth the risk.

        1. They lost that gamble with Heller. They could win, but public opinion is even more against that option than it was in 2008. Now all 50 states, Guam, Puerto Rico, and the U.S. Virgin Islands have some kind of permit system, though far from perfect.

          If the court process takes too long, the Congress is likely to pass national reciprocity. The votes are there. Only Harry Reid and President Obama are stopping it now.

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