May 17, 2016

A federal judge ruled Tuesday that a key provision of the District’s new gun law is probably unconstitutional, ordering D.C. police to stop requiring individuals to show “good reason” to obtain a permit to carry a firearm on the streets of the nation’s capital.

U.S. District Judge Richard J. Leon found that the law violates the “core right of self-defense” granted in the Second Amendment, setting aside arguments from District officials that the regulation is needed to prevent crime and protect the public.

“The enshrinement of constitutional rights necessarily takes certain policy choices off the table,” Leon wrote in a 46-page opinion, quoting a 5-to-4 Supreme Court decision in 2008 in another District case that established a constitutional right to keep firearms inside one’s home.

Leon said the right applies both inside and outside the home.

“The District’s understandable, but overzealous, desire to restrict the right to carry in public a firearm for self-defense to the smallest possible number of law-abiding, responsible citizens is exactly the type of policy choice the Justices had in mind,” he wrote.

[Read the judge’s full opinion here]

Leon’s opinion reignited a running debate over the Second Amendment in the District and its courts; three different judges have come to different conclusions about the law, and gun rights advocates have made the city a main front in battles over gun-control measures.

The Tuesday ruling imposed a preliminary injunction, pending further litigation. The decision means the city cannot deny concealed-carry permits to residents who do not show a good reason for needing a gun but otherwise would qualify for the permits.

Leon’s opinion sharpened the constitutional debate in a city that grapples with gun violence daily and faces pressing security challenges as the seat of federal government and host to diplomats.

The Supreme Court has yet to decide whether permitting systems like the District’s for carrying firearms in public are constitutional.

The District law, among the strictest in the country, matches those in Maryland, New Jersey and New York that federal appeals courts have said are constitutional. A decision on a similar law in San Diego is pending before the full U.S. Court of Appeals for the 9th Circuit in California.

The District law gives police discretion and states that Chief Cathy L. Lanier “may issue” licenses to applicants who show “good reason to fear injury” or “any other proper reason for carrying a pistol,” such as having a job transporting cash or other valuables.

District gun owner Matthew Grace and gun rights group Pink Pistols sued last year, arguing that the D.C. law violates the right to bear arms for self-protection, including against nonspecific or unexpected threats.

“The District of Columbia cannot parcel out constitutional rights to a select few of its choosing,” plaintiffs’ attorney David Thompson said Tuesday. “That’s not how the Constitution works in this country.”

D.C. police referred questions about the ruling to Attorney General Karl A. Racine (D). In a statement, Racine said the District plans to ask to have Leon’s decision put on hold while the city appeals. Racine’s statement said D.C’s laws are “reasonable and necessary to ensure public safety in a dense urban environment.”

Christina Harper, a spokeswoman for D.C. Mayor Muriel E. Bowser (D), said, “We believe our gun laws are constitutional and should be upheld.”

The District approved its concealed-carry permitting system in September 2014, after its long-standing ban on carrying firearms in public was overturned that July by U.S. District Judge Frederick J. Scullin Jr., a federal judge on assignment to the District from New York.

Scullin followed his decision with another opinion last May, saying the District’s recently passed “good reason” requirement still “impinges on Plaintiffs’ Second Amendment right to bear arms,” because it did not target dangerous people or specifically how or where individuals carry weapons.

Scullin was reversed by a three-judge U.S. appeals court panel in December because the visiting judge had not been properly assigned the case.

On reassignment, U.S. District Judge Colleen Kollar-Kotelly declined in March to halt enforcement of the District law — ruling the opposite of Scullin, a George H.W. Bush appointee, and her colleague Leon, appointed by George W. Bush.

Kollar-Kotelly, a Clinton appointee, found that the District’s duties to promote public safety outweighed the plaintiffs’ needs while litigation proceeds.

The judge cited the District’s strong interest “in reducing risks posed to members of the public” by the carrying of concealed weapons, “which poses a potential risk to others — carriers and non-carriers alike — far greater than the risk of possessing a handgun within the home.”

Kollar-Kotelly accepted District arguments that the city — with nearly 10,000 people per square mile — is an urban area more than 100 times more densely populated the U.S. average and more densely populated than any state.

That case brought by Brian Wrenn and the Second Amendment Foundation is pending before the U.S. Court of Appeals for the D.C. Circuit.

UCLA law professor and gun rights specialist Adam Winkler said: “There have been so many twists and turns in D.C.’s gun laws that one more change in direction is hardly a surprise . . . but I suspect the D.C. Circuit will get the final word on concealed-carry laws, if not the Supreme Court itself.”

Winkler said that while U.S. appeals courts have split, most have ruled in favor of “may-issue” discretionary laws, including the Courts of Appeals for the 2nd and 4th circuits.

In a challenge to a San Diego gun law, a three-judge appeals court panel initially ruled against the law in an opinion relied upon by Scullin, before the full 9th Circuit reheard the case last June. A decision is expected at any time.

Leon evaluated the District’s law using the highest constitutional standard of review, reserved for regulations that infringe “core” rights, while Kollar-Kotelly applied a lower standard that gives equal weight to the purposes as well as the constitutional burdens of a government regulation.

Leon’s approach is a “real outlier,” said Adam Skaggs, senior counsel for Everytown for Gun Safety, an advocacy group that filed a brief in support of the District.

 

Aaron C. Davis contributed to this report.

https://www.washingtonpost.com/local/public-safety/us-judge-strikes-down-dc-concealed-carry-gun-law-as-likely-unconstitutional/2016/05/17/d36d35dc-1c49-11e6-8c7b-6931e66333e7_story.html