A federal appeals court on Tuesday struck down Washington, DC’s latest attempt to limit residents’ right to carry guns in public.
The US Court of Appeals for the DC Circuit held in a 2–1 decision that public carrying of firearms is a “core” Second Amendment right, and that the District’s regulations amounted to a “total ban” on exercising that right. The ruling breaks with several federal appeals courts that upheld similar regulations in other states.
“For that long struggle against gun violence, you might see in today’s decision a defeat; you might see the opposite. To say whether it is one or the other is beyond our ken here. We are bound to leave the District as much space to regulate as the Constitution allows — but no more,” DC Circuit Judge Thomas Griffith wrote in the majority opinion.
The US Supreme Court ruled in 2008 that people have a Second Amendment right to keep guns at home, but the justices haven’t decided whether the same is true for public carrying. The Supreme Court in June declined to hear a case, similar to that heard by the District, about public carrying regulations. Justices Clarence Thomas and Neil Gorsuch said they would have heard the case. The DC case could present another opportunity.
Before the case reaches the justices, though, the District’s lawyers could first ask a full sitting of the DC Circuit to reconsider the panel’s decision — and hope, if they get a favorable ruling, that the Supreme Court remains disinclined to take up the issue. One member of the DC Circuit panel, Judge Karen LeCraft Henderson, dissented from Tuesday’s decision. The DC Circuit blocked the city’s handgun ban nearly a decade ago, but since then the court has upheld efforts by city officials to regulate firearms possession.
DC Attorney General Karl Racine said in a statement that the challenged restrictions will remain in effect as his office considers whether to seek review before the full DC Circuit. The panel on Tuesday ordered lower-court judges to enter injunctions barring enforcement.
“The District of Columbia’s ‘good reason’ requirement for concealed-carry permits is a common-sense gun regulation, and four federal appeals courts have rejected challenges to similar laws in other states,” Racine said. “The Office of Attorney General is committed to working with the Mayor and Council to continue fighting for common-sense gun rules.”
Attorney Alan Gura, who argued for the challengers, did not immediately return a request for comment.
The District of Columbia government first tried to ban handguns outright, but that was struck down by the Supreme Court in 2008 in District of Columbia v. Heller, a case that Gura also argued. A majority of the justices in Heller found that there was a constitutional right to keep guns in the home, but the court did not address whether people had a right to carry guns in public.
DC law effectively banned public carrying by making it impossible to get a license. After a federal district judge struck down that ban, city officials crafted a new law, this time saying that residents could get a license for public carrying, but only if they showed “good reason to fear injury,” and detailed specific circumstances beyond a general desire to have a gun for self-defense.
Lower-court judges in US District Court for the District of Columbia handed down a mixed set of opinions, with one judge blocking the “good reason” regulation, and another upholding it. The DC Circuit heard arguments in September 2016.
Griffith, joined by Judge Stephen Williams, wrote in Tuesday’s opinion that it was “more natural to view the Amendment’s core as including a law-abiding citizen’s right to carry common firearms for self defense beyond the home.” He added that this right would still be subject to restrictions on carrying in “sensitive places.”
Lawyers for the District argued that the Second Amendment was intended to protect the establishment of state militias, not personal self-defense, but Griffith said that Heller held that “the reason for the Amendment’s passage did not narrow the sweep of its protections.”
The case delved into what Griffith characterized as “dense historical weeds,” with lawyers drawing on precedents and examples of gun laws stretching back hundreds of years that may have influenced the Second Amendment. The District pointed to a ban on public carrying of guns in crowded areas dating back to the 14th century to support the need for restrictions in urban areas. But Griffith wrote that by the time the Founding Fathers wrote the US Constitution, the right to bear arms “was thought to protect carrying for self-defense generally.”
“Common-law rights developed over time, and American commentaries spell out what early cases imply: the mature right captured by the Amendment was not hemmed in by longstanding bans on carrying in densely populated areas. Its protections today don’t give out inside the Beltway,” Griffith wrote.
The DC Circuit split with several federal appeals courts that upheld similar “good reason” or “good cause” requirements elsewhere, citing other types of lawful gun restrictions. Griffith wrote that these courts hadn’t done the “historical digging” that would expose the flaws in their analysis.
Henderson wrote in her dissent that the right to have guns at home for self-defense is at the “core” of the Second Amendment, but that that was not the case for public carrying.
Applying a less rigorous standard for deciding if a law is constitutional, Henderson wrote that the District of Columbia had shown “two important government objectives underlying its licensing regime: the prevention of crime and the promotion of public safety.”