This column by ACRU Policy Board member Hans von Spakovsky was published May 18, 2016 by Conservative Review.
A federal court has slapped down the ever-recalcitrant District of Columbia yet again for trying to keep its law-abiding residents from exercising their Second Amendment rights. It seems that they will have to be dragged kicking and screaming into complying with the Constitution to allow their residents to defend themselves in a city not exactly known for its low crime rates.
In an order issued on May 17, Judge Richard Leon imposed a preliminary injunction prohibiting the District from “requiring individuals to comply with the ‘good reason’ requirement when applying for a concealed carry permit.” According to Judge Leon, the plaintiffs demonstrated a substantial likelihood of ultimately prevailing on the merits of their claim that this requirement is unconstitutional and that they could suffer irreparable harm if it is enforced.
In 2008, the District was at the heart of the most important Second Amendment decision issued by the U.S. Supreme Court since the Constitution was ratified. In District of Columbia v. Heller, the Court for the first time recognized that the “Second Amendment conferred an individual right to keep and bear arms.” It threw out D.C.’s virtual ban on the ownership of handguns.
The City Council’s immediate reaction was to pass a new gun law in 2008 that allowed individuals to keep registered guns in their homes, but banned anyone other than law enforcement personnel and retired police officers from carrying firearms in public. This limitation was thrown out in 2014 in Palmer v. District of Columbia by visiting Judge Frederick Scullin, Jr., who held that carrying a handgun “outside the home for the lawful purpose of self-defense… constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.”
This sent the politicians scurrying back to the drawing board. In 2015, they came up with a new ordinance on concealed carry that erected numerous hurdles in the way of those wanting to protect themselves on the dangerous streets of D.C. In addition to having to meet a variety of age, criminal history, personal history, mental health and physical requirements, the District specified that the chief of the Metropolitan Police Department, Cathy Lanier, could issue a concealed carry permit only if the resident could show “a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant’s life.”
Alternatively, a resident had to show that he or she was in a type of “employment that require[s] the handling of cash or other valuable objects that may be transported upon the applicant’s person.” Lanier warned that the “fact that a person resides in or is employed in a high crime area shall not by itself establish a good reason to fear injury to person or property for the issuance of a concealed carry license.”
The latest case was brought by two plaintiffs: Matthew Grace, described by Judge Leon as a “law-abiding, responsible United States citizen and resident of the District,” and Pink Pistols, a shooting group that advocates gun ownership “for the self-defense of the sexual minority community.”
Illustrating just how restrictive the “good reason” requirement is, Grace was denied a concealed carry permit despite the events that prompted him to apply. These included “his wife being robbed on a public street, the discovery of shell casings in front of his home on the sidewalk, and robberies at gunpoint that occurred in his neighborhood and for which there has been no arrest.” Yet his application was denied because Grace did not demonstrate a “good reason to fear injury to person or property, or other proper reason for a concealed carry license.”
Leon was not impressed with the District’s arguments defending its concealed carry law. “They waste much ink” on “irrelevant” contentions, he wrote. He dismissed other arguments as “poppycock” and said the District’s “hyperbole” was “not only unwarranted, but irresponsible.”
The city argued that its ordinance does not violate the Second Amendment because there is a “longstanding tradition of banning public carrying in urban areas.” Leon said that claim “strains credulity” and is “severely undercut by the historical record of public carrying of firearms.”
Carrying concealed weapons in those areas is already prohibited, and there is no valid reason to claim that the entire District should fall into this same category.
Leon summarizes that history this way: “[I]t is unquestionable that the public carrying of firearms was widespread during the Colonial and Founding Eras.” Indeed, he notes, some states like Virginia even had statutes forbidding residents “from traveling unless they were well armed, and they were required to ‘bring their pieces to church.’” He cites George Washington, Patrick Henry, Thomas Jefferson and more on the issue, including a letter from Jefferson advising his nephew to have his gun as a “constant companion on walks.”
Although the Supreme Court has not squarely addressed the issue, Judge Leon joined with other judges who have concluded that the Second Amendment clearly applies outside of the home. In fact, Leon notes, “confrontations that might necessitate self-defense are less likely to occur in the home than on the streets of a city with many dangerous neighborhoods.” The judge emphasized that the right to carry a weapon in case of a confrontation “includes a right to carry firearms to protect one against unanticipated and suddenly arising threats.” This applies, he wrote, “in our Nation’s capital, where so many live in or near the various neighborhoods where street crime is a daily occurrence.”
Leon dismissed the “security” concerns raised by the District over the many “sensitive places such as schools and government buildings.” Carrying concealed weapons in those areas is already prohibited, and there is no valid reason to claim that the entire District should fall into this same category. The District doesn’t “wrestle with how downgrading a citizen’s rights merely because he or she lives in the same 68 square mile city as many of our Nation’s leaders is consistent with our Constitution” he wrote.
Judge Leon conceded that the “good reason” requirement “likely does keep guns out of the hands of some people likely to misuse them.” But, he noted, “it does so only by keeping guns out of the hands of most people.” In any event, “the fact that a person can demonstrate a heightened need for self-defense says nothing about whether he or she is more or less likely to misuse a gun.”
As Judge Leon concluded:
Given that the Second Amendment’s central purpose is self-defense and that this need arises more frequently in public, it logically follows that the right to carry arms for self-defense in public lies at the very heart of the Second Amendment.
Time and again, District government has refused to comply with the Second Amendment to the Constitution. While it is nice to think that Judge Leon’s ruling might, at last, convince them to throw in the towel, no one should be surprised if they dip into their bag of unconstitutional tricks once again.