D.C. Concealed-Carry Law May Be Headed for Supreme Court

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By Patrick L. Gregory and Bernie Pazanowski

A District of Columbia law limiting concealed-carry handgun licenses that was found unconstitutional July 25 may be headed to the U.S. Supreme Court, court watchers told Bloomberg BNA ( Wrenn v. District of Columbia , D.C. Cir., No. 16-7025, 7/25/17 ).

The Second Amendment’s “core” protections include the right to carry guns outside of the home for self-defense, not just the right to possess them, the U.S. Court of Appeals for the District of Columbia Circuit said in a decision by Judge Thomas B. Griffith, joined by Judge Stephen F. Williams.

The ruling creates a circuit split concerning the right to carry a concealed weapon. While the case may be granted review by the entire D.C. Circuit first, a request for review by the U.S. Supreme Court is likely in its future.

Confrontational Opinion

The opinion is “confrontational” and puts the D.C. Circuit “eye ball to eye ball” with the other circuits to address the concealed carry issue, Jim Astrachan of Astrachan Gunst Thomas PC, Baltimore, who represents gun rights groups and teaches gun control and the Second Amendment at the University of Baltimore School of Law, told Bloomberg BNA.

It’s a “major ruling, but it may not stick,” UCLA School of Law constitutional law professor Adam Winkler said. If it does hold, however, “it will set up almost certain Supreme Court review,” he said. “There will be a clear split in the circuits and the justices will be all but compelled to take the case,” he said.

Hannah Shearer, Second Amendment Litigation Director at Law Center to Prevent Gun Violence, San Francisco, agreed that the opinion is an outlier and en banc review may be on the horizon. This opinion is “a departure from that of other circuits, including the Second, Third, Fourth, Ninth, and Tenth Circuits,” she said.

Court Notes Circuit Split

The court noted the split with the Second Circuit, which reasoned “that the right to bear must count for less than the right to keep arms,” in Kachalsky v. Cty. of Westchester.

Dissenting, Judge Karen LeCraft Henderson said the only “core” Second Amendment right “is the right to possess arms for self-defense in the home.”

Shearer said the dissent also criticizes the majority’s decision to ignore that concealed carry in America has always been closely regulated and viewed that history “‘with blinders on.’”

History, Heller

The restriction, D.C. Code §22-4506, limits concealed-carry licenses to those who can show a special need to defend themselves “as supported by evidence of specific threats or previous attacks,” or “any other proper reason for carrying a pistol,” the court said.

The plaintiffs included the Pink Pistols—an organization which champions “the right of sexual minorities to carry guns for self-defense"—whose members were denied licenses.

The law “ completely prohibits” most D.C. residents from exercising their right to bear arms “as viewed in the light cast by history” and the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller, the court said.

Under Heller, complete prohibitions of such rights “are always invalid,” the court said.

Broad Opinion?

The opinion doesn’t weigh in on “other sensible requirements for obtaining a concealed carry permit, like safety training,” Shearer noted. But its breadth “certainly raises concern that states enacting even these essential minimum safety requirements could face baseless litigation over them,” she said.

Astrachan called the opinion “brazen” for declaring the right to carry a weapon outside the home a core Second Amendment right. As for what kind of regulations may be placed on the right to obtain a concealed carry permit, that will depend on the type of scrutiny courts use to analyze the regulation, he said. But the D.C. Circuit didn’t even address that issue, he said.

“The opinion suggests that heightened scrutiny is unnecessary because possession in the home is indistinguishable from carrying in public,” Shearer said. But that conclusion is “false,” she said.

The right to carry a loaded weapon in public directly implicates the safety of anyone who happens to be nearby when a weapon is used, Shearer said. “Assuming there is a Second Amendment right to carry guns in public, other courts’ application of intermediate scrutiny is undoubtedly the correct approach, because it allows judges to consider the inherent dangers public carry poses to bystanders,” she said.

Alan Gura of Alexandria, Va., argued for the plaintiffs.

The D.C. attorney general’s office argued for the district.

To contact the reporters on this story: Patrick L. Gregory in Washington at pgregory@bna.com; Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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