[Article updated since its initial publication.]
A three-judge panel of the U.S. Court of the Appeals for the D.C. Circuit has just issued a permanent injunction against the District’s “may issue” firearms licensing scheme, holding that the Second Amendment’s “core lawful purpose” of “self-defense” included the right to carry a firearm beyond the home. The opinion, written by Judge Thomas B. Griffith, held in part:
[C]arrying [a firearm] beyond the home, even in populated areas, even without special need, falls within the [Second] Amendment’s coverage, indeed within its core….
[A]t a minimum, the Amendment’s core must protect carrying given the risks and needs typical of law-abiding citizens. That is a right that most D.C. residents can never exercise, by the law’s very design. In this way, the District’s regulation completely prohibits most residents from exercising the constitutional right to bear arms as viewed in the light cast by history and Heller I [which established that the Second Amendment protected an individual right.] And under Heller I, “complete prohibition[s] of Second Amendment rights are always invalid….
The matter before the D.C. Circuit involved two different lawsuits challenging the District’s may issue regime: Wrenn v. D.C., which was backed by Alan Gottlieb’s Second Amendment Foundation, and Grace v. D.C. which was backed by the LGBT gun rights organization, Pink Pistols. Both plaintiffs had sought an injunction against enforcing the District’s “good reason” requirement for the issuance of firearms carry licenses.
A lower court judge denied Wrenn’s request last March, but a different judge granted Grace’s request (but stayed the order pending appeal.) Since both Wrenn and the District of Columbia appealed, and both cases involved the same issues, the D.C. Circuit combined the two matters and adjudicated them simultaneously.
Both Wrenn and Gracie argued that strict scrutiny (the highest and most demanding form of judicial review) should be the standard followed by the court here, while the District argued that the lesser intermediate scrutiny should be applied. The D.C. Circuit did not say it was applying strict scrutiny…and yet, it disparaged the lesser standard in its ruling:
[T]he 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, where these residents are no more dangerous with a gun than the next law-abiding citizen. We say “necessarily” because the law destroys the ordinarily situated citizen’s right to bear arms not as a side effect of applying other, reasonable regulations (like those upheld in Heller II [which upheld D.C.’s firearms registration scheme] and Heller III [which upheld fees, fingerprinting, and training requirement for carry licenses, but struck down other parts of D.C.’s gun control regime]), but by design: it looks precisely for needs “distinguishable” from those of the community. So we needn’t pause to apply tiers of scrutiny, as if strong enough showings of public benefits could save this destruction of so many commonly situated D.C. residents’ constitutional right to bear common arms for self-defense in any fashion at all.
Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test that was appropriately written and applied, so we strike down the District’s law here apart from any particular balancing test.
The dissenting judge, Karen LeCraft Henderson, argued that the “core” of the Second Amendment was solely limited to “the right to possess arms for self-defense in the home” (emphasis added). She cited a list of decisions from sibling Circuits (not binding precedent on the D.C. Circuit, of course) to back up this claim.
But as the majority pointed out, none of the cases cited said that there was no right to bear arms in public, only that the right to bear arms might be subject to more regulation than it is in the home. The majority dismissed that assertion rather easily, though, noting that “the fact that the need for self-defense is more pressing in the home doesn’t mean that self-defense at home is the only right at the Amendment’s core.”
Judge Henderson then tried her hand at historical analysis, claiming that, historically, the states have disagreed over the extent of the right to keep and bear arms. As this author has stated in the past, however, the historical existence of state laws restricting the individual right to keep and bear arms before the Court held the Amendment incorporated to the several states in 2011 shouldn’t inform our understanding of the scope of the Second Amendment’s protections any more than the fact that New Hampshire and Massachusetts had established churches and religious tests for public officials well into the 19th Century (before the First Amendment was incorporated to the states) informs our understanding of the scope of the First Amendment.
Since the District does issue non-resident licenses, will the citizens of the 50 states be able to apply for a D.C. carry license tomorrow? No. This was a three judge panel ruling — the District could (and likely will) ask for the entire Circuit, en banc, to hear the decision.
They could also petition the Supreme Court for certiorari, although given how mum SCOTUS has been on the Second Amendment lately, it would be a safer bet to go for the former. The courts being what they are, I imagine they’d grant a temporary stay on the order until those avenues have been exhausted.
As always, stay tuned.