Tom Palmer (who works for the libertarian institutions the Atlas Network and the Cato Institute and has been a movement intellectual and activist since the 1970s) over the weekend, to his great surprise, won his long-simmering case challenging D.C.'s ban on carrying legally registered weapons in public. The case had been languishing in U.S. District Court in D.C. for mysterious reasons for five years and a Saturday decision release is unusual.
In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia's total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny. Therefore, the Court finds that the District of Columbia's complete ban on the carrying of handguns in public is unconstitutional. Accordingly, the Court grants Plaintiffs' motion for summary judgment and enjoins Defendants from enforcing the home limitations of D.C. Code § 7-2502.02(a)(4) and enforcing D.C. Code § 22-4504(a) unless and until such time as the District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms. Furthermore, this injunction prohibits the District from completely banning the carrying of handguns in public for self-defense by otherwise qualified non-residents based solely on the fact that they are not residents of the District.
Palmer was an original plaintiff in the Heller case that established the Second Amendment as securing an individual right for self-defense as well. Palmer has a harrowing story of being menaced by a gang of thugs in his youth in which he learned the very practical self-defense value of being able to have a weapon in public, not just in the home. Although this story is compelling to many who might wonder why someone wants to have a gun outside the home, Palmer says, having been menaced in public should not settle the question of someone's right to carry a weapon for self-defense. It's about the right, not just about his personal experience.
Palmer knows for a fact that the right to carry has the promise of making his life safer, though he acknowledged that "undoubtedly some people will believe that [the decision will make the people of D.C. less safe]. But plenty of people who have been victims of violent crime will be relieved to know they can defend themselves. People who are knowledgeable about firearms and who don't live in fantasy worlds will understand that having legal firearms owners around you makes you safer. The criminals are currently carrying concealed weapons—this shocks and surprises many people! But that's the fact."
Palmer says now whatever way D.C. tries to manage or regulate the right to carry short of the total ban that's now off the table will be "a political decision as a matter of law." He doesn't see a core constitutional rights issue involved in open v. concealed carry. In fact, Palmer thinks that gun carry activists who "walk into Wal Mart with firearms displayed in ready-to-use mode are a disgrace. It's all about look at me, look at me." That sort of activism, Palmer says, "has not advanced the agenda of law abiding people exercising their rights" to self-defense outside the home.
Palmer gives all credit to his lawyer Alan Gura, and that if the city decides to try to appeal the decision they are prepared to go as far as necessary. "We will not give up."
The decision in Palmer takes full bans on public carry off the table for D.C., but the issue of the extent to which the right can be regulated and curtailed—specifically whether localities can insist that a local official must decide whether you really need one—ought to be taken up by the Supreme Court soon, though they have so far been reluctant to do so. See my April feature discussing the New Jersey Drake v. Jerejian case that the Court declined this year, challenging the state's restrictive carry licensing regime.
Alan Gura, the lawyer who won this Palmer case and both major Supreme Court cases that established the individual right in the Second Amendment (Heller) and then extended it to states and localities (McDonald), summed up the case's importance on his blog:
In 2012, I won Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), which struck down Illinois' total ban on the carrying of defensive handguns outside the home. With this decision in Palmer, the nation's last explicit ban of the right to bear arms has bitten the dust. Obviously, the carrying of handguns for self-defense can be regulated. Exactly how is a topic of severe and serious debate, and courts should enforce constitutional limitations on such regulation should the government opt to regulate. But totally banning a right literally spelled out in the Bill of Rights isn't going to fly.
Gura also this morning posted on his website a link to the city's response memo, approved by police chief Cathy Lanier, in which police are advised they cans still stop people and ask them about guns on their person. If they find the citizen has a gun and they are a D.C. resident and it isn't registered, they can still be collared. If they are a non-D.C. resident from an area where you don't need a license or permit to carry they are free to go—unless they are a felon or otherwise legally barred from possessing handguns.