Yesterday a federal judge ordered the District of Columbia to stop enforcing its requirement that a resident seeking a license to carry a gun outside his home provide a "good reason." In issuing the preliminary injunction, U.S. District Judge Richard Leon said the plaintiffs challenging the requirement were "highly likely" to succeed in showing that it violates the Second Amendment right to keep and bear arms.
"Given the textual and historical evidence, I have little trouble concluding that under its original meaning the Second Amendment protects a right to carry arms for self-defense in public," Leon writes. "Given that the Second Amendment's central purpose is self-defense and that this need arises more frequently in public, it logically follows that the right to carry arms for self-defense in public lies at the very heart of the Second Amendment."
The District's policy regarding public possession of guns strips most residents of that right, making them guilty of a felony punishable by up to five years in prison if they try to exercise it. A law that took effect last year restricts carry permits to people who can show "a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant's life" or by an occupation that involves "the handling of cash or other valuable objects that may be transported upon the applicant's person." Matthew Grace, the D.C. resident who brought this case along with the gun rights group Pink Pistols, did not qualify because his need for self-protection was not special enough:
Grace concedes he does not face any specific threat that differentiates him from a typical resident of the District; however, several events have contributed to his desire to carry a concealed handgun, including his wife being robbed on a public street, the discovery of shell casings in front of his home on the sidewalk, and robberies at gunpoint that occurred in his neighborhood and for which there has been no arrest.
Since Grace knew his concerns about crime would not be deemed a "good reason" to carry a handgun, he "cited the Second Amendment instead." The Metropolitan Police Department's Firearms Registration Section, which is charged with deciding who should have a carry permit, was not impressed.
In defense of its law, which replaced a complete ban on gun carrying that was overturned on Second Amendment grounds in 2014, the District argued that a nearly complete ban does not impinge on constitutional rights. Leon had little patience with that claim. "Defendants maintain that the longstanding tradition of banning public carrying in urban areas is so broad that the District's comparatively less restrictive 'good reason' requirement does not even infringe upon a Second Amendment right," he writes. "Please. Put simply, this argument strains credulity and flies in the face of prior litigation."
Even if the Second Amendment is implicated, the District said, the right to carry a gun for self-defense in a city is so peripheral to the amendment's purpose that it is not appropriate to apply "strict scrutiny"—a standard that requires the government to rebut the presumption that the challenged law is unconstitutional. Leon did not buy that either: "Defendants point to no textual or historical evidence as support for their through-the-looking-glass view that a citizen's right to carry a firearm for self-defense falls outside the 'core' of the Second Amendment because the citizen lives in a densely populated and dangerous city where the need for self-protection is elevated."
Even if the "good reason" requirement is inconsistent with the Second Amendment, the District said, a preliminary injunction is not justified because the plaintiffs are not suffering any real harm. "In defendants' view," Leon writes, "'[i]f no occasion arises where a handgun is needed for self-defense,' the denial of the Second Amendment right to bear arms 'cannot cause harm.' What poppycock! Just because present plaintiffs 'have not identified a single instance when their inability to carry a handgun caused them injury,' does not mean they have failed to demonstrate a likelihood of irreparable harm. Once again, defendants, sadly, miss the point. The Second Amendment protects plaintiffs' right to bear firearms for self-defense—a right that can be infringed upon whether or not plaintiffs are ever actually called upon to use their weapons to defend themselves."
Leon declined to make his injunction permanent, which leaves the door open to further evidence that theoretically might persuade him to uphold the District's policy. But that seems very unlikely. "It is tempting," he writes, "to agree with plaintiffs that the 'good reason' requirement is per se unconstitutional." Even assuming that it could be justified by showing that it is narrowly tailored to serve a compelling government interest (as strict scrutiny requires), Leon says, "defendants have failed to meet these criteria, and I am skeptical that they can….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." Discussing the merits of a preliminary injunction, Leon flatly states that the plaintiffs' Second Amendment rights "are indeed being violated."
Leon's reasoning mirrors that of the U.S. Court of Appeals for the 7th Circuit, which in 2012 overturned an Illinois law that prohibited most people (aside from police officers, security guards, and a few other exceptions) from carrying ready-to-use guns. That same year, by contrast, the U.S. Court of Appeals for the 2nd Circuit upheld New York's requirement that people seeking permission to carry handguns in public show "proper cause." In 2013 the U.S. Court of Appeals for the 3rd Circuit upheld a similar New Jersey law, requiring a "justifiable need" for a carry permit, and the U.S. Court of Appeals for the 4th Circuit upheld a Maryland law demanding a "good and substantial reason."
In addition to New York, New Jersey, and Maryland, five or six or other states (depending on how you classify Rhode Island) give state or local law enforcement agencies discretion to grant or deny carry permits. The rest either do not require permits or grant them to anyone who meets a short list of objective criteria.