by Walter Smith, Executive Director, DC Appleseed for Law & Justice
On Tuesday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held by a 2-1 vote that the District's requirements for carrying a concealed handgun in public violate the Second Amendment. The District's law requires that a person applying for a license to carry a concealed gun must show either a "good reason to fear injury to [their] person or property" or "any other proper reason for carrying a pistol."
The two-judge majority held that this "good reason" requirement amounted to a "total ban" on the right to carry a gun in public and was therefore unconstitutional--no matter the threat to public safety posed by the introduction of more guns on the streets of the District.
This is a surprising and troubling ruling, not only because the District's elected officials and police officials believe it risks increased violence in the nation's capital, but also because it appears to be incorrect as a matter of law.
Fortunately, D.C. Attorney General Karl Racine has said he is considering asking the full D.C. Circuit to rehear the case. For several reasons, we think there is a good chance that the Court will want to rehear the case, and that when it does, it will side with the District's "good reason" law.
First, the two-judge majority decision is out of line with the decisions of every other federal appellate court to address challenges to similar licensing requirements. The Second Circuit and Third Circuit, as well as the Ninth Circuit sitting en banc, have all held that that a "good reason" requirement does not burden what the Supreme Court has determined is the "core" right under the Second Amendment--the right to possess guns in the home. And all of those other courts have upheld "good reason" requirements after considering the public safety considerations that underlay those requirements--considerations that the two-judge majority did not consider at all.
Second, the two-judge majority struck down the District's "good reason" requirement on the ground that it amounts to a "total ban" on carrying a concealed weapon. But this seems incorrect. As the Washington Post pointed out, as of July 15 "D.C. police had approved 126 concealed-carry licenses and denied 417 applicants." This is not a total ban.
Finally, the majority ignored the difficult judgment that must be made in weighing public safety needs against the Second Amendment right. The D.C. Council and the D.C. police chief made that judgment in adopting the "good reason" rule, but the two-judge majority substituted its own judgment for that of the local legislature and police. That is not the role of the court. As dissenting Judge Karen Henderson said, the D.C. Council deserved "'ample deference'...that recognizes '[i]t is the legislature's job, not ours, to weigh conflicting evidence and make policy judgments.'" We argued for this approach in the amicus brief we filed in the case, and we believe it is the right one.
We hope the Attorney General will petition the entire D.C. Circuit to review this decision. DC Appleseed will continue to support the District's right to enact reasonable gun safety regulations.