Today a federal appeals court is hearing two challenges to the District of Columbia's severe restrictions on carrying guns outside the home. The District requires that residents seeking a license to carry a gun demonstrate "good reason to fear injury," meaning they have "a special need for self-protection distinguishable from the general community." In separate cases, the Second Amendment Foundation and the LGBTQ gun rights group Pink Pistols argue that the District's rules are inconsistent with the constitutional right to keep and bear arms. U.S. District Judge Colleen Kollar-Kotelly dismissed the Second Amendment Foundation's lawsuit last March, while U.S. District Judge Richard Leon granted the Pink Pistols' request for a preliminary injunction in May. Now the U.S. Court of Appeals for the D.C. Circuit has to decide which judge was right.
Even assuming that "the Second Amendment protects a right to carry arms publicly in the District of Columbia," Kollar-Kotelly said, the D.C. regulations meet the requirements of "intermediate scrutiny," meaning they are "substantially related to an important governmental objective." Since the District's goals of "preventing crime and promoting public safety" are clearly important governmental objectives, she said, the only question is whether the District's restrictions on carrying guns in public are substantially related to those goals. Noting that "Defendants have identified what appears to be substantial evidence of connections between public carrying of guns—and associated regulations on public carrying—and impacts on crime and public safety," Kollar-Kotelly concluded that the plaintiffs had failed to show it was likely that they would be able to overcome that evidence.
Leon, by contrast, applied "strict scrutiny" to the District's policy, meaning it could pass constitutional muster only if it was "narrowly tailored" to serve a "compelling government interest." While the District's interest in preventing crime counts as "compelling," he said, it had failed to make the case that its regulations were appropriately narrow. "A court applying strict scrutiny must presume the law is invalid," Leon wrote. "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." In fact, he said, the burden imposed by the District's regulations "is so substantial that it is tempting, indeed, to agree with plaintiffs that the 'good reason' requirement is per se unconstitutional."
District of Columbia v. Heller, the 2008 decision in which the Supreme Court overturned the District's handgun ban and affirmed the Second Amendment right to armed self-defense in the home, did not address armed self-defense in other settings. Nor did it specify what level of scrutiny is appropriate for laws that impinge on Second Amendment rights. So far three federal appeals courts have upheld concealed-carry policies similar to the District's, and all of them applied intermediate scrutiny.
In 2012 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." The only appeals court to go the other way is 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. The 7th Circuit said "our analysis is not based on degrees of scrutiny, but on Illinois's failure to justify the most restrictive gun law of any of the 50 states."
You might think that when the ability to "bear arms" is subject to bureaucratic whims, it goes to the heart of the freedoms guaranteed by the Second Amendment. But the District argues that its policy does not impinge on Second Amendment rights as they were historically understood, which it claims did not include the right to carry guns in urban areas. Kolar-Kotelly did not address that contention, and Leon rejected it in no uncertain terms, saying "defendants do not cite a single Colonial Era, Founding Era, or nineteenth-century commentator, let alone jurist, espousing an urban/rural divide on the right to carry guns."
Even if the Second Amendment is implicated, the District says, the right to carry a gun for self-defense in a city is so peripheral to the amendment's purpose that strict scrutiny is inappropriate. If the D.C. Circuit agrees, it will probably join the 2nd, 3rd, and 4th circuits in letting law enforcement officials decide who deserves to exercise his Second Amendment rights outside the home. But if the appeals court agrees with Leon that strict scrutiny applies, there will be a clear circuit split that the Supreme Court will be asked to resolve.