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Will DC Carry?

Will DC Carry?

Photo credit: Jahi Chikwendiu | The Washington Post via Getty Images

What if the citizens of the District of Columbia, and visitors to the District, could exercise their Second Amendment-protected right to bear arms? For four days in July, they were able to do just that.

Soon, they may be able to do so every day, thanks to a major decision by a federal district court. The case of Palmer v. District of Columbia is also nationally important because it is the strongest decision ever upholding the self-defense rights of interstate travelers.

As this article goes to press, it is not clear how the District’s city government will respond to the court’s ruling—but there is some reason for optimism. Fundamental change may finally be on the way for our nation’s capital.

Let’s start at the beginning.

The Constitution grants Congress the power to govern the District of Columbia directly. In the mid-1970s, Congress delegated home-rule authority to the District’s municipal government. One of the first things the new government did with its new power was ban handguns, with the ban going into effect in 1976.

The District Council allowed residents who owned registered handguns before 1976 to keep their handguns. However, the Council also forbade the carrying of handguns without a permit. There was no exemption for private property. If you kept your old handgun in your upstairs bedroom and wanted to carry the gun downstairs to the dining room to clean it, you had to have a permit. Ordinary citizens were never granted permits.

In the U.S. Supreme Court case District of Columbia v. Heller, the Supreme Court ruled on three separate provisions of the District’s gun laws: First, the handgun ban was unconstitutional. Second, the ban on having any operable firearm (e.g., a rifle, shotgun or handgun that could be used for self-defense) in the home was unconstitutional. Third, the District had to give Dick Heller a carry permit, presuming that he was qualified—that is, he had no felony convictions, etc.Since the Heller decision, only about 3,000 firearms have been registered—in a city with a population of 600,000. 

The District government responded by setting up an onerous system for people to be allowed to possess firearms, by first registering them with the police. Journalist Emily Miller details the registration system’s operation in her book “Emily Gets Her Gun: But Obama Wants to Take Yours.” Registration was deliberately made difficult, requiring numerous trips to the only police station that processes registration forms.

It took several months of persistence and hundreds of dollars in fees and other charges to legally register a handgun in the District. This deliberately difficult process helped to accomplish the District’s goal of limiting the number of new registrations. Since the Heller decision, only about 3,000 firearms have been registered—in a city with a population of 600,000. That’s still progress compared to the situation before, and, thanks to the work of those who exposed the overly burdensome process and the ever-present possibility of more litigation, the District more recently amended the law to improve the registration process.

What about carrying? The District Council repealed the carry permit law.

The effect of the legal changes was that it was now lawful to carry your registered, loaded handgun from your upstairs to your downstairs. As for carrying your registered handgun outside your home for lawful self-defense, forget about it. That is completely illegal in D.C.

Thus began the case of Palmer v. District of Columbia in 2009.

Tom Palmer was one of the original six plaintiffs in the case that became D.C. v. Heller. However, because of some unusually stringent procedural rules of the United States Court of Appeals for the District of Columbia (the “D.C. Circuit”), the only plaintiff who made it all the way to the Supreme Court was Dick Heller.

To start the new case in 2009, Palmer and other prospective plaintiffs went to the offices of the D.C. Metropolitan Police Department. In the portion of the registration form that asks about the purpose of the gun, Palmer and the others wrote that they intended to carry their handguns for lawful self-defense in public. The police refused to register the handguns, since carry outside one’s property is illegal in D.C.

Palmer and the other plaintiffs are represented by Alan Gura, the winning lawyer in the Supreme Court’s Heller case.

Palmer v. D.C.
 was a simple case that didn’t need to have a trial for fact-finding. Nobody really disputed that Palmer and the other plaintiffs were upstanding law-abiding citizens. Tom Palmer also knew first-hand how important the right to bear arms is. When Palmer was living in California in 1982, he and a friend were attacked outside a restaurant. Palmer drew his concealed handgun, and the criminals fled.

The legal question in Palmer v. D.C. was straightforward: Does the Second Amendment, as interpreted by the Supreme Court, mean that citizens have a right to bear arms outside the home?

By October 2009, Gura and the District’s lawyers had filed their briefs. Federal District Court Judge Henry Kennedy heard oral arguments in January 2010.

Yet a year a half later, the court had not issued a ruling. Judge Kennedy was nearing his retirement later that year, and the case was re-assigned to another judge in July 2011.

Months went by, but still no decision was forthcoming. After several politely worded requests to the judge proved fruitless, in October 2013, Gura asked the D.C. Circuit to order the District Court Judge to issue an opinion.

The D.C. Circuit agreed that more than two years is a fairly long time for a judge to take to issue an opinion—but the Circuit declined to issue a “writ of mandamus” telling the lower court judge to finish the job.It is rarely easy for a court to strike down a legislative enactment. But as the opinion in Palmer v. D.C. shows, there was no other option. 

In July 2014, District Judge Frederick Scullin, who was appointed to the bench in 1992 by President George H.W. Bush, issued his ruling. Although Judge Scullin normally hears cases in upstate New York, he voluntarily served in the Palmer case to help the somewhat overburdened federal district court there.

Judge Scullin’s ruling was worth the wait. It is rarely easy for a court to strike down a legislative enactment. But as the opinion in Palmer v. D.C. shows, there was no other option. Judge Scullin’s opinion carefully walks through the Supreme Court’s precedents of District of Columbia v. Heller andMcDonald v. Chicago, and their lower federal court progeny. Based on these precedents, it is implausible to claim that that the right to “bear” arms means nothing more than the right to “keep” arms inside the home.

As Judge Scullin observed, as of July 2014 the District of Columbia was the only jurisdiction in the United States that completely forbade the carrying of handguns for lawful self-defense, even with a license and safety training. Thus, D.C.’s complete prohibition, with no process even to apply for a carry permit, was patently unconstitutional.

Also among the Palmer plaintiffs was a Maryland resident. Quite significantly, Judge Scullin also ruled that D.C. could not completely forbid non-residents from bearing arms in the city. The Court issued an injunction against enforcement of the anti-carry statutes.

Judge Scullin’s opinion was ready for release on Thursday, July 24. But the D.C. federal district court’s computer system was having some problems. (These days, most written judicial opinions are issued electronically.) It was not until late Saturday afternoon when the decision was released to the public.

Suddenly, carrying handguns in public was legal in D.C.

The D.C. Metropolitan Police quickly met with the D.C. Attorney General (the city’s legal office), and late Sunday night, D.C. Police Chief Cathy Lanier announced the new guidelines that were being issued to the D.C. Police: Any D.C. resident with a registered handgun could carry it. Any non-resident with a carry permit from outside of D.C. could carry in D.C. Any non-resident whose home state allowed permitless open carry could also carry a handgun in D.C.

That same evening, the D.C. Attorney General announced that he would seek a “stay” of Judge Scullin’s opinion. A stay is a temporary suspension of the enforcement of a court order, to give the parties some time to figure out what to do next.

The stay was issued on Tuesday afternoon (more on that below). But from Saturday afternoon, July 26, until Tuesday afternoon, July 29, it was legal for ordinary citizens to carry handguns in Washington. Law-abiding people did so, including residents of nearby states.

Interestingly, none of these armed, law-abiding citizens perpetrated a gun crime. Nobody got shot because of an argument about who was next in line at a hot dog stand on the national mall. At the Jefferson Memorial, nobody pulled a gun on anybody else.

Once again, everyone could see the falsity of the gun-ban lobby’s assertion that Americans are incompetent and hot-headed fools who can’t be trusted to carry guns in public.

When a court rules that a law is unconstitutional, the court often grants a “stay,” which temporarily allows the challenged law to continue in effect. During the stay, the government has the opportunity to fix the law, or to appeal the case to a higher court. If the case is appealed, a stay could be extended during the entire year, or two, of the appellate process.

The D.C. government has not indicated what it will do. The stay issued by the district court expires on Oct. 22.

The spectrum of political opinion in the D.C. government ranges from left to far left. Thus far, all D.C. government officials who have been quoted in the press have accepted that D.C.’s law must be changed. But how?

D.C. Police Chief Cathy Lanier has stated that she is not worried about lawful gun carriers committing street crimes. She explained to the press that the people in D.C. who commit street crimes (e.g., robberies) never have gun permits. So allowing licensed carry would not increase street crime....the D.C. government could copy Maryland’s sham system of permits—anyone can apply, but almost nobody will receive one.

Instead, said Chief Lanier, her main concern was “security”—that is, protection of very important persons. The Supreme Court’s Heller decision expressly supports gun bans in “government buildings.” Moreover, Judge Scullin has formally stated that his decision applies only to handguns—which are by nature relatively short range. So Chief Lanier’s security concerns could be met in compliance with judicial precedents.

On the other hand, the D.C. government could attempt a more repressive approach: Allow any law-abiding citizen to apply for a carry permit, but grant carry permits to hardly any of them. This is the policy in Maryland, which was upheld in the 4th Circuit Court of Appeals in Woollard v. Gallagher.

Judge Scullin does not seem to favor a merely illusory right, such as that in Maryland. His opinion approvingly listed some permissible rules for carry permits—bans in certain locations such as schools, requirements for training, and express authorization of private businesses to have the choice to ban carrying on their premises.

So the D.C. government has a choice. It can enact a law that respects the right to carry, and that also includes Judge Scullin’s permitted restrictions (such as training requirements, or limits in certain locations). Or the D.C. government could copy Maryland’s sham system of permits—anyone can apply, but almost nobody will receive one.

What the higher courts would do is impossible to predict. Because Congress still has constitutional authority to legislate for the District, the election of a pro-rights Congress in 2014 could improve the prospects for good laws in the District, and for the continuing spread of interstate carry rights.

THE D.C. DECISION AND RECIPROCITY

The case of Shaneen Allen illustrates the urgency of reciprocity reform for licensed carry. The D.C. court’s decision in Palmer v. District of Columbia is a very helpful precedent, but it’s not a silver bullet.

A decision from the United States District Court for the District of Columbia is binding precedent only in the District of Columbia. If the Palmer decision were affirmed on appeal by the United States Court of Appeals for the D.C. Circuit, that would still only
be binding in D.C.

Courts often look to precedents from other courts, even when not legally binding. For example, the Supreme Court of Utah might look to how the Supreme Court of Michigan has resolved an issue, and adopt the same approach. The Palmer decision is important because it is the first case in the post-Heller period that expressly recognizes the right of visitors to carry defensive arms when they are outside their home state. However, the Palmer decision is merely persuasive authority, not binding authority, for courts outside the District of Columbia.

As a technical matter, New Jersey pretends to recognize the rights of visitors, since non-residents are allowed to apply for a New Jersey carry permit. However, in practice, New Jersey grants permits to virtually nobody, whether residents or non-residents. If Allen, as a Pennsylvania resident, had applied for a New Jersey carry permit, it is nearly certain that she would have been denied.

Thus, the surest path to reform would be for Congress to use its powers under Section 5 of the 14th Amendment to protect the rights of interstate travelers. Indeed, the 14th Amendment was enacted in part to protect the self-defense rights of interstate travelers.

When sending the proposed 14th Amendment to the States for ratification, Congress discussed South Carolina’s notorious 1844 persecution of Samuel Hoar, an attorney from Massachusetts. Hoar had traveled to South Carolina to mount a legal challenge to the state law that authorized the capture and enslavement of any free black sailor who in a South Carolina port stepped off his ship and onto the land. Incited by the South Carolina legislature and governor, mobs threatened violence against the attorney, and he was forced to leave the state.

The lead Senate sponsor of the 14th Amendment, Sen. John Sherman, R-Ohio, explaining the need, pointed out that, “In the celebrated case of Mr. Hoar,” the constitutional right of interstate travel “was in effect a dead letter as to him.”