The Volokh Conspiracy
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Hot off the e-press, from Tuesday morning's Grace v. D.C.: Matthew Grace and the Pink Pistols ("the world's largest GLBT self-defense organization," with the motto "Pick On Someone Your Own Caliber") have just won a preliminary injunction against D.C.'s provision that, to get a gun carry license, the applicant must show a "good reason to fear injury to his or her person or property" or "any other proper reason for carrying a pistol." (An earlier decision, Wrenn v. D.C., reached the same result but was set aside on procedural grounds: The judge who decided that case was an out-of-district judge designated to hear particular cases, and the U.S. Court of Appeals for the District of Columbia Circuit held that Wrenn wasn't one of those cases.)
The author of the decision, Judge Richard Leon, may be familiar to some readers as the judge who has held that the NSA's program for collecting phone data is probably unconstitutional. Here are some excerpts from Tuesday's gun decision (some paragraph breaks added), though if you're interested in the topic, you should read the whole opinion:
The Second Amendment's Applicability Is Not Limited to the Home . . .
The Supreme Court has explained that "[a]t the time of the founding, as now, to 'bear' meant to 'carry.' " Heller v. D.C.. One does not typically think of "carrying" as an activity exclusively done within the home. Thus, reading the Second Amendment right to "bear" arms as applying only in the home is forced or awkward at best, and more likely is countertextual.
Moreover, the Supreme Court recognized that when "bear" is used with " 'arms' . . . the term has a meaning that refers to carrying for a particular purpose—confrontation." Heller; see also id. (stating that as used in the Second Amendment, the phrase to "bear arms" means to "wear, bear, or carry [arms] upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person" (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). Surely confrontations do not occur only in the home, and therefore "[t]o confine the right to be armed to the home is to divorce the Second Amendment fr the right of self-defense described in Heller and McDonald." Indeed, confrontations that might necessitate self-defense are less likely to occur in the home than on the streets of a city with many dangerous neighborhoods. . . .
[Footnote: Indeed the Supreme Court, in undoubtedly carefully selected language, has hinted the Second Amendment has application in settings other than the home. See McDonald (plurality opinion) ("[T]he Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." (emphasis added)); Heller (stating the "the need for defense of self, family, and property" that is "central to the Second Amendment right" is "most acute" in the home (emphasis added)). Furthermore, the Supreme Court recently vacated and remanded an opinion by the Massachusetts Supreme Judicial Court that held there is no Second Amendment right to keep and carry stun guns. Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (per curiam). Without reading too much into what was left unsaid, I note that, as the petitioner there was prosecuted for carrying a stun gun in a supermarket parking lot, the case certainly presented the opportunity for any of the Justices to assert the view that the Second Amendment right does not extend to public spaces. None did.] . . .
Not surprisingly, such a reading is also supported by the historical record. [Long discussion of the historical evidence omitted.—EV] . . .
Even assuming arguendo, however, that defendants are correct and that the "good reason" requirement qualifies as a longstanding regulation, under our Circuit Court's framework it would only be afforded a presumption of constitutionality. Plaintiffs could then rebut that presumption "by showing the regulation does have more than a de miminis effect upon" their Second Amendment right to bear arms for self-defense.
This they could do, because the "good reason" requirement covers the precise conduct, carrying arms, for the precise reason, self-defense, that the text and historical record make clear the Second Amendment was intended to protect. Further, it is simply beyond dispute that requiring individuals to possess certain self-defense needs that the District deems worthy before they are permitted to carry a firearm "meaningfully affect[ s] individual self-defense, which is the central component of the Second Amendment right." . . .
The District's Concealed Carry Scheme Is Likely Unconstitutional . . .
Strict Scrutiny Is Likely the Appropriate Level of Constitutional Scrutiny . . .
Because the Second Amendment's text places the right to "keep" and to "bear" arms on equal footing, it follows that the right to "bear" arms for self-defense also lies at the core of the Second Amendment's protections. Indeed, the purpose of the Second Amendment, as articulated by the Supreme Court, supports this conclusion. . . . The need for self-defense is, of course, greater outside the home than it is within it. . . . Furthermore, I note that plaintiffs here are the very type of "law-abiding, responsible citizens" whose Second Amendment rights are entitled to full protection under Heller.
The District's "Good Reason" Requirement Imposes a Substantial Burden on Core Second Amendment Conduct. . . .
[T]he burden imposed by the statute at issue is [not] as insignificant as that of a "time, place, and manner restrictions" on speech that leave open "ample alternative channels of communication." . . . Indeed, the requirement's intended effect is to prohibit the typical citizen from carrying a firearm outside his or her home for several legitimate and constitutionally protected purposes—including when in dangerous neighborhoods, where the need for protection is as undeniable as it is unfortunate, or for self-defense from unanticipated, suddenly arising threats—notwithstanding the fact that he or she can successfully clear a multitude of qualifying hurdles. . . .
The District's Concealed Carry Scheme Likely Fails Strict Scrutiny. . . .
[T]his Court agrees with defendants that the District' s interest in public safety is implicated by people carrying guns in public, and certainly more so than when they keep guns within the confines of their homes. But, unfortunately for defendants, it does not automatically follow that the District has a compelling interest in reducing to the greatest extent possible the number of law-abiding, responsible citizens eligible to carry guns in public. Rather, when the District's pursuit of public safety substantially burdens conduct protected by the Second Amendment, as issuing licenses only in certain self-defense situations does, it must at the very least prove that the policy achieves significant public safety gains and that those gains would not be achieved by a more inclusive licensing policy.
Defendants have failed to meet these criteria, and I am skeptical that they can. They waste much ink on the irrelevant contention that plaintiffs cannot prove that "more guns equals less crime." In strict scrutiny review, however, defendants bear the burden of justifying their policy. More important still, defendants do not even attempt to explain why the District's licensing scheme could not be broader and allow for more responsible, law-abiding citizens to obtain concealed carry permits for their legitimate self-defense needs, while simultaneously protecting public safety.
All they offer by way of reasoning is that all guns, even guns carried in self-defense, increase the incentive for criminals to carry guns, or increase the chances for accidents. But as plaintiffs rightly emphasize, "it is 'not a permissible strategy' to reduce the alleged negative effects of a constitutionally protected right by simply reducing the number of people exercising the right."
Rather, the District's licensing restrictions would only be narrowly tailored to achieve public safety if they were targeted at keeping guns away from the people who are likely to misuse them or situations where they are likely to be misused. On the record before me, I must agree with plaintiffs that defendants are unlikely to be able to show the "good reason" requirement is narrowly tailored to this end. . . .
Although the District's "good reason" requirement likely does keep guns out of the hands of some people likely to misuse them, it does so only by keeping guns out of the hands of most people. . . . Because the District's law is likely wholly disproportionate to the public interest it could legitimately serve, there is a strong likelihood plaintiffs will ultimately succeed in showing the law is not narrowly tailored and is, therefore, unconstitutional. . . .
In Heller, the Supreme Court's unequivocally asserted that "the enshrinement of constitutional rights necessarily takes certain policy choices off the table." The District's understandable, but overly zealous, desire to restrict the right to carry in public a firearm for self-defense to the smallest possible number of law-abiding, responsible citizens is exactly the type of policy choice the Justices had in mind.
Because the right to bear arms includes the right to carry firearms for self-defense both in and outside the home, I find that the District's "good reason" requirement likely places an unconstitutional burden on this right. Accordingly, I hereby GRANT plaintiffs' request for a preliminary injunction and enter an order that enjoins the District of Columbia from denying concealed carry licenses to applicants who meet all eligibility requirements other than the "good reason" requirement. . . .
Of course, I doubt that this will be the courts' last word on the subject; I expect the decision will be stayed pending appeal to the District of Columbia Circuit, and from there it may well reach the Supreme Court, especially if the District of Columbia Circuit agrees that the D.C. carry restriction is unconstitutional. What will happen at the Supreme Court of course likely depends on what will happen in the political process in the next six months.