Sunday, July 27, 2014

DC Concealed Carry Ban Unconstitutional

from ssgmarkcr

  I just saw this come up.  It seems that the US District Court in DC has ruled that the District's ban on concealed carry is unconstitutional.  The Heller, McDonald, and Peruta decisions were all cited in the decision. 

"In light of Heller, McDonald, and their progeny, there is no longer any basis on which
this Court can conclude that the District of Columbia's total ban on the public carrying of ready-to-
use handguns outside the home is constitutional under any level of scrutiny. Therefore, the
Court finds that the District of Columbia's complete ban on the carrying of handguns in public is

"Judge Frederick Scullin Jr. wrote in his ruling in Palmer v. District of Columbia that the right to bear arms extends outside the home, therefore gun-control laws in the nation’s capital are “unconstitutional.”

"Judge Sculin extensively referenced the Supreme Court decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) to concluding “there is no longer any basis on which this court can conclude that the District of Columbia's total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny.”

    Of course, it will be appealed, and might end up like Illinois did.  Perhaps they'll even appeal it to the US Supreme Court, something that Illinois decided not to do.  We shall see. 


  1. First off, that is a district court decision--not an appellate court decision. It could be struck down at the appellate level.

    Heller said:

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5"

    Of course, the "pro-gun" side has been pushing the envelope since then.

    Additionally, prior to Heller, the reigning case on the Second Amendment was Sandidge v. US, 520 A.2d 1057 (1987), which said:

    The purpose of the second amendment is "to preserve the effectiveness and assure the continuation of the state militia." United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia. See D.C.Code '' 39-106, - 201 (1981) (provides for organized m ilitia, called the National Guard, to be armed by government); Miller , 307 U.S. at 178, 59 S.Ct. at 818; Warin, 530 F.2d at 106 (possession of submachine gun by individual has no relationship to preservation or efficiency of a well regulated militia).

    Nothing substantially changes between Sandidge and Heller, which means that the Parker Court failed to follow precedent: as did all other courts following it.

    But, I know that you don't really give a shit about the constitution, rule of law, or any of those other niceties.

    You're ecstatic whenever anyone on your side breaks the law, but vindictive for anyone else.

    That's not a legal system--that's a mistake.

    1. As I said in my post Laci, I'm sure it will be appealed as much as possible. Just as Moore vs. Madigan was. However we have just had two fairly recent decisions that have cited Heller in their argument for the right to carry for self defense in public.
      What is particularly interesting is that Peruta spoke directly to the subject of requiring a citizen to show a good enough reason for him to be allowed to carry. Peruta eliminated that requirement.
      I suspect that if it does survive the appeal process, it will end up as something along the lines of Jersey's permit policy. This does seem to be a trend though.

    2. Obviously, anyone who cites Heller as anything other than owning guns in the home hasn't really read, or understood, the decision.

      The holding was exceedingly narrow as to what was allowed.

      It also was not a very gun friendly decision since it allows a wide range of methods for regulating firearms..

    3. I should also add that if someone cites a decision which contradicts their position and claims it supports it--a proper judge would laugh them out of court (maybe not literally, but in a figurative manner).

      I cannot say that Heller supports a right to carry a gun outside the home as a proper legal opinion.

      In fact, the above passage says that concealed carry IS NOT covered and that there is more than enough evidence to show it was not intended to be covered.

      I would hope that the Judges in the US show some ability in how to do their job, but so far they have chosen to ignore precedent and go with bullshit.

      I don't give a shit how gun unfriendly Heller is, it fails to follow precedent since precedent contradicts what it wants to say.

  2. Legal, or not there is still the question if more guns will solve our already staggering gun problem. The gun loons seem to be weak on that issue except to say more guns in everyone's hands will stop gun crime. Gun infiltration has caused the high gun abuse and crime problem we have now.

  3. Actually Laci it is much much worse for you gun fearing pantie soilers........ Dogs and cats sleeping together, rending of clothes, gnashing of teeth, whay will you do?

    D.C. Metropolitan Police Chief Cathy Lanier has approved an order which allows District residents to carry a handgun IF AND ONLY IF the handgun has been properly registered with the District Police, pursuant to the District’s handgun registration ordinance.

    What about non-residents? According to the Post article, “Lanier’s instructions to police also said that residents of other jurisdictions without felony records would not be charged under the ban on carrying pistols.”

    OhNoes panda-monium, blood in the streets OK corral gun fights at every childs hopscotch game!!!!111!!!!!!eleventy-one!!

  4. The District has asked for a stay in enforcing this judgement since it will take it up on appeal.

    The slightly more reputable Washington Post says this decision would prevent arrests for merely carrying a pistol in the District. It sounds as if people without felony convictions could carry without fear of prosecution.


    Another council member, Mary M. Cheh (D-Ward 3), noted that the ruling was made at the trial court level and was issued by an out-of-state judge “sitting down here on a temporary status” and possibly lacking an appreciation of the District’s special circumstances.

    I wouldn't break out the Champagne yet since it could be overturned.

    I would also add that the Second Amendment has actually become an excuse for Tyranny as understood by the people who wrote the Declaration of Independence.

    A jurisdiction that is taxed without representation in government sees its properly enacted laws overturned by people who are not elected, nor live in the jurisdiction.

    That was at least two of the Complaints mentioned in the Declaration.

  5. For a time at least, it looks like DC has reciprocity with all fifty states of the union, sort of like drivers licenses.

    "D.C. police issued bulletins to officers and residents Monday explaining that they no longer would arrest people for carrying legally registered handguns outside their homes, even as city attorneys sought to temporarily block a federal judge’s ruling that declared the District’s ban on firearms possession in public unconstitutional."

    "It’s unclear when Judge Scullin will decide whether to issue the stay. The judge did not consider a stay in his initial ruling on the case because neither party sought one, his judicial assistant Rosemary Riley said."

    Its interesting that in this case, DC residents are more restricted than permit holders from outside of the District in that District residents can only carry firearms registered with the police, while visitors only need a carry permit. Visitors from Constitutional carry states don't need anything, though the police might run a check to see if you're a felon.
    I wonder how long it will take to get the stay that was requested.

  6. Fairly predictably, the DC government has developed a permit system designed to be as restrictive as possible. And now it gets interesting,

    "In a blistering court filing, attorney Alan Gura argues that the Council's bill — which limits concealed carry permits to residents who can prove they face a personal threat and restricts where they can travel with their handguns — does not meet the requirements of the late-July ruling in which Judge Frederick Scullin said the city's ban on carrying guns was unconstitutional.
    "The Court's order specifically instructed, in accordance with Supreme Court precedent, that the right to carry handguns is rooted in a constitutional self-defense interest. Yet [D.C. officials] have replaced their 'no permits are available' handgun carry regime with 'no permits are available merely for self-defense, and not unless we think, in our complete discretion, that it's a good idea,'" he wrote."

    "They have asked Scullin to reconsider his ruling, and he has set a hearing for Oct. 17 on that motion. City officials have also requested a longer stay of the ruling, but have not yet said if they will appeal."

  7. Just thought I'd throw out an update on this case. Seems that things are moving ahead step by step.

    "The U.S. District Court for the District of Columbia has denied a motion by the District to reconsider its ruling in the case of Palmer v. District of Columbia, a Second Amendment Foundation case that nullified the city’s ban on carrying firearms outside of the home."

    And DC has come out finally and said they would be appealing Palmer. And there is also a suit in the works to prevent the new very restrictive permit laws recently passed by the DC Council.

    "The plaintiffs who successfully sued to overturn the District’s long-standing ban on carrying firearms in public asked a federal judge Thursday to bar the city from enforcing its new law to regulate weapons, arguing that it is unconstitutional.
    In a motion, the four people and the Second Amendment Foundation asked U.S. District Judge Frederick J. Scullin Jr. to enjoin the D.C. government from enforcing restrictions on carrying guns in public “unless and until such time as the District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms.”
    When the D.C. Council passed the new law unanimously Sept. 23, Alan Gura, attorney for the plaintiffs, called the legislation “something of a joke.” He added, “It’s not much progress to move from a system where ­licenses are not available to a system where licenses are only available if the city feels like issuing them.”

    “I think that their position is unreasonable, and it’s out of step with the jurisprudence,” he said. “There’s no question that states have the right to substantially limit the ability of citizens to carry, and the District’s unique status as host to federal officials and the diplomatic corps makes the issue of carrying a fundamental safety concern.”

    I had to put this last part in because it made me wonder how the person could say it with a straight face in light of the fact that I believe that the District has the highest rate of homicide and violent crime in the nation. Oops, I'm mistaken, Puerto Rico has a higher homicide rate, but a much lower violent crime rate. Another place where strict gun laws aren't working so well.

  8. It appears the next step in this saga will be happening on the 20th of this month.

    "Well, I spoke with Alan Gura, the lawyer for the plaintiffs in the Palmer case. He said that the city's new carry permit law is unconstitutional and does not adhere to the court ruling. Gura has filed a request for a permanent injunction, which a district court judge will hear on Nov. 20."

    It will be interesting to see how long it takes DC to certify instructors for the mandated training. My guess is the answer will be as long as possible.

  9. Well, it seems that DC has dropped its appeal of Palmer. Wonder how all of this will shake out,

    "The Second Amendment Foundation will continue fighting the District of Columbia's new concealed carry law, while notching a small victory with today's decision by the city to drop its appeal of SAF's victory in the Palmer case that forced the city to adopt a carry permitting structure.
    "While we're happy to see the city drop their appeal of our earlier victory," said SAF founder and Executive Vice President Alan Gottlieb, "we were eager to face them in court, as there was no possible way they could have successfully argued in favor of continuing an outright ban on carry in the District."

    "This is not the end of the Palmer case, however. SAF still has outstanding enforcement motions pending before U.S. District Judge Frederick J. Scullin, Jr., who handed down the initial Palmer ruling. His rulings on those motions could produce further appeals, SAF attorney Alan Gura explained. SAF has already filed a lawsuit challenging the District's current highly-restrictive "good reason" requirement.
    "Our intent is to continue our battle for the right to bear arms on behalf of all the citizens, not just a privileged few," Gottlieb concluded."

    Is it me, or does this seem eerily like a repeat of Moore vs Madigan where they were vowing to appeal all the way to SCOTUS and then suddenly dropping it.

  10. It appears that the actions Mr. Gura mentioned are progressing,

    "A federal judge has issued an injunction barring Washington D.C. from applying its vague “good cause” test as part of its controversial may-issue permitting scheme that has declined more permits than it has granted."

    “Plaintiffs, as well as the majority of law-abiding citizens, who fail to satisfy the District of Columbia’s ‘good reason/proper reason’ requirement because they cannot ‘show a special need for self-protection distinguishable from the general community’ or that they are engaged in a ‘type of employment that requires the handling of cash or other valuable objects that may be transported upon [their] person,’ are unable excursive their fundamental right to bear arms for self-defense under the Second Amendment,” wrote U.S. District Judge Frederick J. Scullin Jr. in a 23-page opinion from his bench in New York.
    “Thus, the Court concludes that the District of Columbia’s ‘good reason/proper reason’ requirement impinges on Plaintiff’s Second Amendment right to bear arms,” said Scullin, who issued a preliminary injunction against Lanier and the city from enforcing the requirement."

    "D.C. Attorney General Karl A. Racine advised the city was weighing options for appeal; however, Scullin’s order states that attorneys for both sides shall appear for a conference with the court on July 7 to “discuss an expedited schedule for the resolution of this case.”