Will the D.C. Circuit Court of Appeals Strike Down this Latest Attempt to Strip Citizens of Their 2nd Amendment?

This column by ACRU Policy Board member Hans von Spakovsky was published September 21, 2016 by Conservative Review.

For decades, the District of Columbia has demonstrated unrelenting hostility toward the Second Amendment right to bear arms. On Tuesday, a three-judge panel of the D.C. Circuit Court of Appeals heard oral arguments in two different cases that will decide whether the city can, once again, severely curtail residents’ “concealed carry” rights.

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. In response to Heller, the City Council changed the law to allow residents to keep registered handguns in their homes, but banned the carrying of any weapons in public, open or concealed.

That restriction was thrown out in 2014. In Palmer v. District of Columbia, visiting Judge Frederick Scullin, Jr., from the Northern District of New York, 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.”

The D.C. Council revised its law again to allow concealed carry but only if a resident could show “specific threats or previous attacks that demonstrate a special danger,” or what has come to be called the “good reason” requirement. Living in a high crime neighborhood, which is more the rule than the exception in the District, is not a good reason for requiring a concealed carry permit and does not meet that standard according to Cathy Lanier, the chief of the Metropolitan Police Department.

Two different groups sued over this restrictive rule, and two different federal district court judges issued conflicting decisions. In Wrenn v. D.C., a case brought by several residents and the Second Amendment Foundation, Judge Colleen Kollar-Kotelly refused to issue a preliminary injunction against the D.C. law. She followed the reasoning of the Second, Third, Fourth, Ninth, and Tenth Circuit Courts of Appeals, all of which have found that requiring a “good reason” for a concealed carry permit does not violate the Second Amendment no matter how restrictive local authorities are in applying that rule. She also refused to hear oral arguments before issuing her ruling. The Seventh Circuit has reached the opposite conclusion.

In an odd procedural twist, this case had originally been assigned to the same visiting judge from New York, Frederick J. Scullin, Jr. He issued a preliminary injunction against the “good reason” requirement. But his ruling was overturned in 2015 by the Court of Appeals, which said Scullin exceeded his jurisdictional authority under the applicable statutory provisions. The case was reassigned to Kollar-Kotelly, who issued an opinion in March of this year diametrically opposed to Scullin’s prior conclusion that the D.C. “good reason” requirement was unconstitutional.

The second lawsuit, Grace v. D.C., was filed by D.C. resident Matthew Grace and the Pink Pistols, a shooting group that advocates gun ownership for the defense of the homosexual community. In May 2016, Judge Richard Leon came to the opposite conclusion of Judge Kollar-Kotelly: he issued a preliminary injunction against D.C.’s law, holding that the challengers were likely to succeed in their claim that the restriction was unconstitutional. 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.” But that was not a good enough reason to issue him a concealed carry permit, according to the District.

Oral arguments in both cases were heard on Tuesday by the same panel of three judges on the D.C. Circuit Court of Appeals: Karen L. Henderson, a George H.W. Bush appointee; Thomas B. Griffin, a George W. Bush appointee; and Stephen F. Williams, a Ronald Reagan appointee. As Chuck Cooper, the lawyer representing Grace and the Pink Pistols argued in his brief about the revised ordinance, this latest “attempt [by the District] to infringe its citizens’ Second Amendment rights is no more constitutional than the previous two.” He pointed out that the Heller case took “out of the hands of government… the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

The fate of the District’s latest attempt to make it as hard as possible for people to get concealed carry licenses to defend themselves in one of the nation’s most dangerous cities now lies in the hands of three federal appellate court judges and their view of the Second Amendment.

But that is exactly what the District is doing — deciding on a case-by-case basis whether a resident applying for a concealed carry license has, in the sole judgment of its officials, “shown ‘good reason’ that a license should issue.” Cooper contends that this “demand is categorically irreconcilable with the Second Amendment.” In fact, Cooper cited the statements of the chairman of the city council, Tommy Wells, during hearings on the current law as evidence that “everyone” on the council wanted to “restrict the right of people to carry handguns in the District of Columbia.” So it is very clear that their only purpose was to impede the Second Amendment rights of residents of the District.

Alan Gura, representing the Second Amendment Foundation, compared Second Amendment rights to other constitutional rights protected by the Bill of Rights. As he said, a constitutional right that can only be exercised by a citizen “when the police determine one has ‘good’ or ‘proper’ reason to do it is not much of a right.” We would “scoff at ‘rights’ to due process, or against unreasonable searches and seizures, provided the police chief agrees that one has an unusually ‘good’ or ‘proper’ reason for their exercise.” The “right to bear arms” under the Second Amendment “is no different.”

Hopefully, they will not do what Thomas Jefferson once warned against: turning the Constitution into “a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please.”