On Tuesday, the D.C. Circuit Court of Appeals struck down the District of Columbia’s law requiring applicants for a concealed carry permit to demonstrate a special need for self-protection “distinguishable from the general community.”
The Supreme Court previously struck down D.C.’s ban on possession of handguns in the landmark case D.C. v. Heller (2008), and a district court invalidated D.C.’s ban on carrying handguns in Palmer v. DC (2014).
Thereafter, the D.C. City Council enacted a law severely limiting concealed carry permits for applicants alleging “serious threats of death or serious bodily harm.” Living or working in high crime areas is not a sufficient reason.
In a 2-1 decision reviewing dueling lower court rulings, a D.C. Circuit panel held that the law violates the Second Amendment and granted the challengers a permanent injunction against D.C.’s law.
Judge Thomas Griffith wrote the majority opinion, which first addressed whether the Second Amendment protects the right to carry a handgun for self-defense in public. The majority concluded that even in the absence of showing a special need for self-defense, it does.
In D.C. v. Heller (2008) and McDonald v. Chicago (2012), the Supreme Court held that at its core, the Second Amendment protects an individual’s right to self-defense—a right that predated the Constitution.
The Supreme Court evaluated early cases construing the Second Amendment, and looking to those sources, the D.C. Circuit panel concluded that this extends to carrying a handgun in public for self-defense, with some limits.
Those limits include reasonable licensing requirements, prohibiting felons from possessing handguns, and barring carrying handguns “near sensitive sites,” such as near schools.
The city argued that pre-constitutional history supports its restrictions—the Statute of Northampton, enacted in 1328, prohibited carrying in densely populated areas, and this traveled to the colonies in the 1700s.
The majority brushed this argument away, stating:
Happily, though, the state of the law in Chaucer’s England—or for that matter Shakespeare’s or Cromwell’s—is not decisive here. Heller I holds that by the time of the Founding, the “preexisting right” enshrined in the Amendment had ripened to include carrying more broadly than the District contends based on its reading of the 14th-century statute.
The majority also concluded that the rights to keep and bear arms are equally important, despite more frequent restrictions placed on bearing.
Next, the panel addressed which standard of review should apply—rational basis, intermediate, or strict scrutiny.
Other appeals courts including the Second, Third, Fourth and Ninth Circuits have applied intermediate scrutiny to similar laws.
But the D.C. Circuit panel took the lead from the Supreme Court in Heller, which found that complete bans on Second Amendment rights are invalid, making it unnecessary to decide which level of scrutiny applies.
The majority concluded, “no such analysis could ever sanction obliterations of an enumerated constitutional right.”
D.C.’s law, the majority explained, “is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen.”
Indeed, “the class of citizens who can wield [arms] must include those with common levels of competence and responsibility—and need.”
The majority quipped that the Second Amendment “doesn’t secure a right to have some chance at self-defense.” Since the law essentially prohibited most people from exercise their right to carry a gun, it was akin to the virtual ban the Supreme Court struck down in Heller.
Judge Karen LeCraft Henderson dissented, stating that she agrees with other appeals courts that have held the Second Amendment does not protect a right outside the home.
She would have upheld D.C.’s law because it “does not affect firearm possession within the home and therefore does not ‘impose a substantial burden upon the core right of self-defense.’”
In her view, the law should only be subject to intermediate scrutiny because D.C. is unique, given the number of government buildings where firearms are prohibited. She would defer to the judgment of the D.C. Councilmembers that decided this regulation was necessary and appropriate.
But as Griffith explained in the majority opinion, “We are bound to leave the District as much space to regulate as the Constitution allows—but no more.”
Though the D.C. Circuit panel concluded that laws like D.C.’s “flunk any judicial test that was appropriately written and applied,” several other appeals courts have disagreed, ruling in favor of concealed carry restrictions that amount to virtual bans.
This tees up the issue for Supreme Court review.
The justices declined to take up Peruta v. California, a case challenging similar “good reason” requirements for concealed carry permits, over the protests of Justices Clarence Thomas and Neil Gorsuch.
Thomas wrote in dissent that it is extremely improbable that the “Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”
If D.C. ultimately asks the Supreme Court to take the case, perhaps the justices will be ready to review the issue since there is a split among the lower courts. In the meantime, the city will likely ask the full D.C. Circuit to rehear the case.
This piece originally appeared in The Daily Signal