By Matthew J. Bergstrom
This week the right to keep and bear arms advanced two steps and took one step back in Washington, DC. It’s part of what will be a long and winding process to comply with a court order forcing the District of Columbia to lift its 40 year ban on any carrying of firearms outside the home. On September 23, 2014, the DC Council begrudgingly, yet unanimously, voted for a bill allowing the concealed carry of firearms in the District by residents and nonresidents alike. Given a choice, Council members said they’d prefer banning firearms completely . . .
but in July, District Court Judge Frederick Scullin, Jr. declared DC’s ban on carrying unconstitutional in his Palmer vs. District of Columbia decision. In a classic example of obeying the letter of the law, but not its spirit, the bill awaiting the mayor’s signature will make carry permits extremely difficult to obtain.
These circumstances have not inspired confidence among gun owners, who tragically allowed themselves a brief moment of hopefulness following Palmer. Now, in a moment of clarity, these people are beginning to contemplate next steps. They want to apply for DC carry permits and they want to appeal any potential rejections. Based on current conditions, here’s my take on Second Amendment rights in the District:
- The gray area is dangerous. Immediately after the federal judge’s ruling, DC police and DC federal prosecutors avoided prosecuting people carrying concealed guns because the law wasn’t clear. Although the DC ban on guns was still “on the books”, a federal judge ruled the law unconstitutional. With DC Council’s passage of the bill on Tuesday, the law is now clear: only those with a DC permit can carry a concealed firearm in the District. The bottom line: For now, keep your guns off the streets of DC because police and prosecutors will be back in action and prosecuting these types of cases eagerly.
- All holstered up and nowhere to apply: The DC Police Chief has one month to implement the new law and create the permit procedure. So, for the next few weeks, there won’t even be a way to apply for a permit. The bottom line: Once created, the new permit procedure it will be most likely be found here: http://mpdc.dc.gov/
- The target keeps moving: This bill that passed Tuesday will only be valid for ninety (90) days. The Council has several months to make permanent changes to the process and guidelines. The bottom line: If you apply for a permit under the temporary legislation, keep in mind that the law could change in a matter of days. Changes could make the process easier or more restrictive. Given the Council’s commentary when they passed the bill, the DC Police Chief will undoubtedly be primed to deny the bulk of applications that come her way, especially in the first few weeks.
- No clear map to follow: Another issue facing gun owners is qualification. Even if they legitimately qualify for a DC concealed carry permit within the law’s narrow parameters, how will they prove that qualification? The law says that an applicant will have to show “good reason” that he or she needs a permit. For example, a “true threat to person or property” or another “proper reason” for carrying a firearm. How will this “true threat” be proven? Will the Police Chief take the applicant’s word or will the applicant need a police report or other legal document to prove her case? DC officials have already said that living in a high crime neighborhood would not be a good enough reason to receive a permit. The bottom line: If you do choose to apply for a DC permit, make like a boy scout and be prepared. If you have a paper trail (police reports, documented threats, insurance reports) that prove your position, make sure you get your documents together before you apply. And one thing is for sure, the DC Police Chief is unlikely to think your Second Amendment rights qualify as “good reason”. Be ready to articulate your reasons with clarity and supporting evidence.
- No one is talking about turn-around time: While it’s clear that the DC Police Chief and her team will be in the driver’s seat when deciding who gets permits and who doesn’t, there is no indication of how long the permit review and approval process will take. The bottom line: If you apply for a permit under the temporary law, there’s a chance the law will change before you get approved for or even denied or your permit. Additionally, there could be a waiting period between re-applications.
- A second bite at the apple: If you do get denied, there is an appeals process that will go to a five-member board. If you’re serious about obtaining a permit, this may be the time to call for legal help. Find an attorney familiar with gun laws who can help you swim through what will undoubtedly be a frustrating process. The bottom line: No one in the DC government wants this bill, so it is unlikely you will see a friendly face on the appeals panel. If you decide to appeal, make sure you have all of your ducks in a row and go in with guns blazing (pun intended).
- Big brother is watching: Under “DC Home Rule”, residents of the District have the ability to govern themselves. But, thanks to James Madison, the Constitution states that Congress may “exercise exclusive Legislation in all Cases whatsoever” over the District. This means that Congress reviews all of DC’s laws and there is a 30-day waiting period until the law is put in place. More often, a Congressman or Senator tries to slide a funding block (a “rider”) into federal legislation that would affect daily happenings in DC, although almost always without success due to DC Congresswoman’s Eleanor Holmes Norton persistent and successful push for Congress to leave DC to its own devices. In this case, such interference would be welcome by gun owners since several federal lawmakers have tried to intervene to lift the ban. The bottom line: As recently as July, a Kentucky Congressman tried to quash the ban using federal law so don’t be surprised to see support from members of Congress who support gun rights. However, as per usual, Congresswoman Norton is gearing up to make sure that Congress lets the restrictive laws stay in place. Moreover, Congress has only overturned DC law three times in history so it’s unlikely, but not impossible, that Congress will save the day for gun owners.
- There’s still hope: On October 17, both the city’s attorneys and Alan Gura, the attorney representing those challenging the bill, will appear again in court. The city will argue for Judge Scullin to reconsider his overturn of the ban and Gura will most likely take the opportunity to point out that, given the restrictiveness of the new legislation, the ban is technically still in place for all intents and purposes. The bottom line: The process is still in flux and can be modified by the court or the Council itself. The federal courts are split on whether restrictive permit processes like the one DC proposed are constitutional, so it’s anybody’s game. If you are a gun owner in the greater metropolitan DC area, DC resident or not, it’s time to prepare and make yourself heard. Shortly, there will be an opportunity to apply for a DC carry permit. It’s equally important to appeal a rejection of your application.
To reiterate, the DC carry law remains very uncertain, and gun owners throughout the greater DC metropolitan area, including nearby states, should begin preparing themselves for processing their applications and their appeals.
Matthew J. Bergstrom is an attorney who leads Arsenal Attorneys™ at their main offices in Virginia and Washington, DC. His law practice serves gun owners and the firearms industry nationwide. Mr. Bergstrom has previously written for The Truth About Guns™ on various legal issues, including the National Firearms Act and his experiences serving clients of the firm’s Arsenal Gun Trust™ services. Mr. Bergstrom is a member of the bars of Virginia and the District of Columbia.