After the District of Columbia’s handgun ban was struck down by the Supreme Court in D.C. v. Heller, and its ban on bearing arms was struck down by the District Court in Palmer v. D.C., the District responded by prohibiting all persons from bearing arms unless “the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol.” D.C. Code Ann. § 22-4506(a)-(b).
A “good reason” “at a minimum require[s] a showing of 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.” § 7-2509.11(1)(A). Living or working in a high-crime area was not enough. D.C. Mun. Regs. tit. 24 § 2333.4.
A “proper reason” “at a minimum include[s] types of employment that require the handling of cash or other valuable objects that may be transported upon the applicant's person.” § 7-2509.11(1)(B).
So, unless a person had a high-risk job, or could sufficiently prove that her life was in danger, she was prohibited from carrying a firearm in the District. And even then, she still had to prove that she was “a suitable person.” § 22-4506(a)-(b).
A suitable person, among other things, had completed over 16 hours of firearms training, 2 hours of range training, and possessed “the proper knowledge, skill, and attitude.” § 7-2509.02.
Predictably, and as intended, carry permits were rarely ever issued. So two individuals who were denied licenses for failing to show “good reason,” and two gun rights organizations, the Second Amendment Foundation and the Pink Pistols, challenged the licensing system in what became Wrenn v. D.C. Yesterday, the Court of Appeals for the District of Columbia ruled in favor of the plaintiffs, holding that the licensing system violated the Second Amendment.
The first issue the court addressed was “whether the [Second] Amendment’s ‘core’ extends to publicly carrying guns for self-defense.” Since Heller held that self-defense is the “core lawful purpose” of the right, and since the need for self-defense extends beyond the home, the court determined the right must extend beyond the home as well. Additionally, and perhaps most obviously, the court noted that “the Amendment’s text protects the right to ‘bear’ as well as ‘keep’ arms.” Thus, the right to keep and bear arms protects both the right to keep arms at home and bear arms in public.
The court noted that the Supreme Court’s analysis in Heller indicated that a right to bear arms exists. And further, that the same cases the Supreme Court relied on in holding that the Second Amendment protects an individual right in Heller also support the right to bear arms publicly. (I discussed what many of these cases said about bearing arms here.) Even when these courts upheld a ban on a certain method of carrying arms, they only did so where another method was available. The D.C. Circuit agreed with this concept, explaining that while restrictions on a certain method of bearing arms (i.e., concealed carry or open carry) may be permissible, “the law must leave responsible, law-abiding citizens some reasonable means of exercising” the right.
The court also rejected the approach taken by the Ninth Circuit in Peruta v. County of San Diego, in which it upheld a ban on concealed carry without considering what other restrictions applied in that jurisdiction—most notably, a ban on open carry. (I criticized that approach here.) As the D.C. Circuit explained, “a regulation’s validity may turn partly on whether surrounding laws leave ample options for keeping and carrying.”
The court concluded:
Reading the Amendment, applying Heller I’s reasoning, and crediting key early sources, we conclude: 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.
Having determined that the law burdens the core of the Second Amendment, the court then had to decide how to determine whether it violated the Second Amendment. The Supreme Court held the District’s handgun ban categorically unconstitutional in Heller, without resorting to means/end testing. But most Circuit Courts have applied a two-part test to restrictions on carrying arms, typically resulting in the law being upheld under intermediate scrutiny—usually based on a reasoning that the right, assuming it even applies outside the home, applies with less force than it does inside the home. (For a comprehensive analysis of Second Amendment cases decided by the Circuit Courts, see Kopel & Greenlee, “The Federal Circuits’ Second Amendment Doctrines,” 61 St. Louis U.L.J. 193 (2017).)
The D.C. Circuit followed the Supreme Court’s approach. The court rejected the notion that the right applies with less force outside the home, declaring that “possession and carrying—keeping and bearing—are on equal footing.” This is consistent with a plain reading of the Amendment’s text. And “[s]ince possession and carrying are on par with each other, it will follow that the same categorical treatment [applied in Heller] should apply to the District’s ban on carrying by all but the few who prove a special reason to carry.”
By only allowing a person to qualify for a license if her needs are “distinguishable from the general community,” the licensing system was designed to prevent typical law-abiding citizens from bearing arms at all. “In this way, the District’s regulation completely prohibits most residents from exercising the constitutional right to bear arms as viewed in the light cast by history and Heller I. And under Heller I, ‘complete prohibition[s]’ of Second Amendment rights are always invalid.” Thus, the “good-reason” licensing system, which completely banned most D.C. residents from bearing arms, was held unconstitutional.
While it appears likely that the District will petition for en banc review, well-reasoned opinions based on history and fidelity to Heller have proven difficult for even the most determined courts to overturn. For instance, in Peruta we saw the en banc Ninth Circuit rule on an entirely different issue than the panel had—one that did not even address the plaintiffs’ injury. In Kolbe v. Hogan, the en banc Fourth Circuit took a single line from Heller out of context and applied it in a way that directly contracted Heller itself. The en banc D.C. Circuit would have to take similarly brazen measures to reverse this decision.