Gun Rights

D.C. Circuit Won't Reconsider Decision Upholding the Right to Be Armed in Public

The vote confirms a split that invites the Supreme Court to settle the issue.



Yesterday a federal appeals court let stand a decision overturning the District of Columbia's tight restrictions on carrying guns in public, reinforcing a circuit split that invites the Supreme Court to settle the issue of whether the constitutional right to keep and bear arms extends outside the home.

Last year a federal judge in D.C. said it does, and last July a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed. Now that the full court has declined to rehear the case, only the Supreme Court can save the District's highly discretionary carry permit policy, which requires applicants to provide a "good reason" why they want to be armed. An ordinary resident's desire to defend himself does not count.

In its decision last May, the D.C. Circuit panel concluded, based on historical evidence and the Supreme Court's reasoning in the landmark Second Amendment case District of Columbia v. Heller, that "the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment's protections." Since "the law-abiding citizen's right to bear common arms must enable the typical citizen to carry a gun," the court said, the District's law is clearly unconstitutional, amounting to "a total ban on most D.C. residents' right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen."

The U.S. Court of Appeals for the 7th Circuit reached a similar conclusion in 2012, when it 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."

Last year the U.S. Court of Appeals for the 9th Circuit upheld a California law requiring "good cause" for carrying a concealed weapon. "The Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public," the court declared, noting that Heller mentions "prohibitions on carrying concealed weapons" as a kind of law that most 19th-century courts had deemed consistent with the Second Amendment. "There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here."

In June the Supreme Court declined to hear an appeal of that decision, provoking strong objections from Justices Clarence Thomas and Neil Gorsuch. "I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen," Thomas wrote in a dissent joined by Gorsuch. "I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it….Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively." The D.C. Circuit has amplified that argument by confirming the stark disagreement among federal appeals courts about the scope of the right to bear arms.

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  1. How about “DC Circuit stands by its decision supporting the right to carry arms in public.”

    Reporting the details of court decisions should be in the article itself – the headline’s main function should be to clearly convey who won.

    Otherwise we end up headlines like “Supreme Court overturns temporary injunction against ban” – which requires sentence-diagramming skills to parse.

    1. I hated sentence diagramming.

  2. The inconsistent interpretation of the law of the land is a bit of a problem. States can’t be laboratories where constitutional rights are concerned.

    1. Remind me why they don’t let juries interpret the law – because there would be so many inconsistent results, right?

      1. At the very least you’re forcing a system where everyone has to go to Jury before they even know if what they supposedly did is a crime.

        1. Maybe there should be some kind of burden, like proving beyond reasonable doubt not only that the defendant did something, but that what they did was a crime.

          So if it’s unclear – for instance, if the jury is told that judges can’t agree on whether something can constitutionally be a crime in the first place, then – BINGO! – reasonable doubt = “not guilty.”

          1. Jury nullification.

          2. We already have that. It’s called being a cop.

  3. Why is it so hard to just look up the definition of “infringed” in a dictionary? Pick whatever one you want. They’re all pretty much the same.

  4. What are the odds that Ginsberg will fail to wake up at the next SOTU speech and go into a perpetual dirt nap, or Kennedy will follow through on his hints about retirement? If Trump can appoint another Gorsuch….or someone like Don Willet [just nominated to the 5th Circuit Court of Appeals in Texas]?

    That will be enough of a Trump legacy for me.

  5. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

  6. The TRUTH about the “supremacy clause” – our Constitution does not delegate to the government authority to restrict our arms, ammunition, regulate firearms dealers, do background checks, etc. ?s=The+TRUTH+about+the+”supremacy+clause

  7. Arms control of the people is not an enumerated power!

    video on arms, here it is:

    State concealed carry laws which require a “permit” is an idea crafted in the pits of h ell. The real purpose is to register gun owners! People think it is so cool to have a permit for concealed carry – they don’t understand that it is like the free sample of heroin.

  8. I fail to understand how the mere existence of the ATF is consistent with the second amendment.
    But then, I don’t understand how there could even be sales tax on firearms or ammunition sales.

    *preaches to choir*

  9. You can’t tell “fire” in a crowded movie theater!!


  10. I can’t wait for the usual black robe bullshit, but I hope I’m pleasantly surprised.
    (C’mon Neil)
    But I expect something such as, ” blah, blah, intermediate scrutiny, blah blather compelling Government interest, blah blah….. ”

    “Shall not be infringed….” What could it possibly mean?

  11. If only there was some sort of, I don’t know, supreme law or something, that expressly prohibited the gov’t from, infringing on the rights of the people.

  12. So, when begging to bureaucrats for permission to exercise a ‘right’, when they ask for “good cause” am I supposed to write down “security of a free state” , or “donated to sheriff’s re-election campaign”?

  13. Just for kicks, does anyone want to re-write the second amendment so that it is consistent with current laws?

    And be creative, don’t just write FYTW.


    1. That’s easy

      The Congress, the States, and all political subdivisions therein shall have the power to restrict or prohibit the possession, carrying, wearing, purchase, manufacture and sale of firearms, ammunition, firearm accessories, and all other offensive or defensive weapons or objects that may be used as weapons.

  14. However as accurate as that would be

  15. “A well armed security detail, being necessary to the interests of the totalitarian regime, the right of the bureaucracy to be supremely armed, shall never consider liberty or freedom, when subjugating the taxpayers…”

  16. I seem to recall Obama having made a remark to his supporters, “If they bring a knife to the fight, we bring a gun.”
    Obama’s legacy, IMO, should be that he was our first President to overtly work from the position of a community organizer as a wedge between those who supported him and those who did not. At the end of his 8 years in office we have become more divided as a people than at ANY time in our past history, including the Civil War period.
    As such, an ordinary resident’s desire to defend him/her self has become the PRIMARY reason they may want or need to be armed.

    1. Note, that Obama’s words posted above stated “If they bring a knife to ‘THE’ fight, we bring a gun.”, not “If they bring a knife to ‘A’ fight, we bring a gun.”, which IMO literally implied to his followers that we/they are engaged in battle with Americans who disagree with them entitling violence as the means of accomplishing their/his goals.

  17. I’ll offer some comments seriatim on some of the points raised here, and this is not intended to be an integrated argument. And, for the record, I do own military-style firearms and personally support all of the gun rights gun owners SAY they have.

    That aside, it is clear from the above review of decisions that even the judges really don’t know what they are talking about.

    For starters: Concealed/open carry. The constitution of Colorado recognizes the right to keep and bear arms for personal protection but clearly exempts from the right carrying concealed. Carrying concealed has a hidden danger to it, well recognized by the courts of the old West, in that any personal brawl, where a concealed gun is involved, MUST become a fight for possession of the weapon under circumstances where the winner wins and the loser dies. Although some states require concealed carry (open carry is statutorily prohibited in Florida), and states like Colorado are not prevented from allowing concealed carry, it simply is wrong to confuse the question of carrying for self-defense with some claim of right to carry concealed.

    When you carry in the open, people at least are on notice that you have the gun. It’s no different than a cop: Are you likely to punch a cop in the nose, knowing ahead of time he’s carrying a loaded .45? I don’t think you’ll find many takers on that, and the few you will find probably are not going to live very long.

  18. As for the Second Amendment, yes the right to keep and bear specifically is recognized, but the Second Amendment primarily is a restriction on the power of Congress to “infringe” the militia. The Constitution altered the Articles of Confederation by specifically giving Congress the power to arm, equip, and discipline state militias. The debate in convention centered on whether it might be better for some militiamen to be armed with rifles and others with shotguns. No one proposed that militias be armed solely with spears. But, critics quickly pointed out that Congress (which also gained the power to raise its own troops) could do just that and thereby “infringe” a STATE’S power to defend itself from federal corruption.

    The Second Amendment was ratified specifically to prevent this. The Ninth Amendment then was ratified to prevent judges from using the restrictive nature of the Second to attack other gun rights, like open carry for self-defense, which is essentially a STATE right specified in STATE constitutions.

    When the two amendments are understood this way, much of the gun controversy simply evaporates. You do NOT have some blanket right to carry any weapon you want; you DO have a right to keep and bear weapons APPROPRIATE TO A LAWFUL FUNCTION such as self-defense.

  19. Let me reiterate that in specific terms: I don’t have a right to own a ma deuce just to have a ma deuce or have fun with it on the range. I DO have a right to own a ma deuce IF I am possessing it for service as a soldier, and the federal government cannot block me from doing that since such “infringes” the militia.

    At the same time, I am assuming that Florida is not going to just allow anyone to run around town with an automatic weapon useful for shooting down airplanes. The law can (and should) regulate the time and place of possession, security features around the possession, and contain precise definitions of what terms like “proper need” mean.

    Anything less is simply turning over to a bureaucrat responsible to no one the power to impose his own definition on an ad hoc basis, and such arbitrariness is the definition of tyranny.

    Finally, let us be realistic about what Las Vegas was and means. Yesterday, there was an equally vicious act — two car bombings — in Africa with a similar number of casualties. It is clear that gun laws have little to do (and possess little deterrent effect) on such behavior. Make it “illegal” for the Las Vegas shooter to buy a “bump stock,” and he can just install a crank trigger. The possibilities are limited solely by imagination to those determined to commit murder on a massive scale.

  20. We do need to defend our gun rights against those who mindlessly would deny them. We also need to better understand our gun rights so that, when called upon to defend them, we can make proper arguments to the courts to insure that we don’t get the kinds of confused responses from judges, as reported here.

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