FIREARMS LEGAL BRIEF: DC “GOOD REASON” REQUIREMENT CRUSHED
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For those of you that have
been paying attention, you may have known that the District of Columbia
has been the subject of a lot of litigation over the past two decades in
relation to firearms. The original Heller, that we talk about all the
time, struck down a 1976 ban on the possession of handguns, followed by a
decision tossing aside the District’s total ban on carrying firearms.
To circumvent that decision, the District of Columbia implemented a
requirement that an individual show “good reason” to be granted a
concealed carry pistol license. And yes, that’s what a carry permit is
called in DC.
Carry licenses were issued subject to the chief of
police’s discretion. The law authorized the Chief to issue a license to
anyone who “has good reason to fear injury to his or her person or
property or has any other proper reason for carrying a pistol, and that
he or she is a suitable person” to be licensed. You may have heard this
“good reason” also referred to as “good cause” and you can find similar
laws in places like California, New York, New Jersey and Maryland.
The
law also enable the Chief to establish criteria to determine whether a
person had established “good reason”. In order to demonstrate “good
reason” to fear injury, an applicant must “at a minimum [show] 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.” So
basically, you had to prove that your life was worth of defending.
The
other option would be for applicants to apply under the “other proper
reason for carrying” criteria. These applicants had to show that they
were employed in a manner that required the carrying of cash or other
valuable objects transported on their person. So for example a person
who regularly carried diamonds on their person in the course of business
may have qualified for a license. The regulations implemented by the
Chief also gave individuals the ability to apply if they had a close
relative who was so physically or mentally incapacitated that they could
not defend themselves. Simply put, a very small percentage of
law-abiding citizens would qualify, leaving the majority unable to
procure a license.
This provision was challenged by a man named
Brian Wrenn, as well as the Second Amendment Foundation and two of its
members all in one lawsuit. Another man named Matthew Grace and the Pink
Pistols challenged the provision in another lawsuit. For those of you
who are unaware, the Pink Pistols are a LGBTQ organization who advocates
for the use of lawfully-owned and lawfully-concealed firearms for the
self-defense of the sexual minority community. Both suits requested a
preliminary injunction to be issued. If you don’t recall what a
preliminary injunction is go check out the video I did on the California
injunction, there’s a link in the description or if you’re watching on
YouTube, you can click the card up in the corner.
The District
Court denied the preliminary injunction requested by Wrenn but granted
the one asked for by Grace. As a result, in both instances, the parties
appealed to the Circuit Court of Appeals which consolidated the cases
and heard them together.
The Court was left to determine whether
the “good reason” requirement impeded on a “core” Second Amendment
right. It began the analysis by looking at the Supreme Court’s decision
in Heller. Finding that the Second Amendment’s “core lawful purpose” was
self defense, and that the text of the amendment protects the right to
“keep” and “bear” arms, the Court determined that it was “more natural
to view the Amendment’s core as including a law-abiding citizen’s right
to carry common firearms for self-defense beyond the home.” The Court
specifically noted that the Heller decision found “ to “bear” means to
“‘wear, bear, or carry . . . upon the person or in the clothing or in a
pocket, for the purpose . . . of being armed and ready for offensive or
defensive action in a case of conflict with another person.’” As a
result that definition shows that the Amendment’s core must span…[to]
the “right to possess and carry weapons in case of confrontation.” This
analysis was bolstered by a long line of cases the Court quickly
recounted.
After determining that the “good reason” law burdened a
“core” right, the Court looked at several other arguments. First, it
examined the argument set forth by the District of Columbia which stated
that densely populated or crowded areas were excluded from the right to
carry a firearm. This argument was premised on old English law, which
had banned such conduct dating back to 1328. The District argued that
because similar laws had found their way to the colonies by the 1700s
and later on to the states by the mid-to-late 1800s, the “core” right to
carry did not apply to those areas. Yes, that’s right, they’re citing
to a law from the 1300s.
Fortunately, the Court quickly dismissed
such an illogical argument. It noted that due to Heller “we can sidestep
the historical debate on how the first Northampton law might have
hindered Londoners in the Middle Ages. Common-law rights developed over
time, and American commentaries spell out what early cases imply: the
mature right captured by the Amendment was not hemmed in by longstanding
bans on carrying in densely populated areas. Its protections today
don’t give out inside the Beltway.” Simply put, the Court stated that
the Second Amendment was not restricted in its applications to carrying
firearms in densely populated areas.
The
District advanced another argument that I found quite curious. It
argued that based on old English surety laws, carrying a firearm was
excluded from the core Second Amendment protections. For those
unfamiliar with surety laws, the Court provides an excellent example.
“These
laws provided that if Oliver carried a pistol and Thomas said he
reasonably feared that Oliver would injure him or breach the peace,
Oliver had to post a bond to be used to cover any damage he might do,
unless he proved he had reason to fear injury to his person or family or
property.” Essentially, Oliver was posting money of his own in the form
of a bond as “insurance” against him taking some adverse action. So
this is social justice warrior insurance from ye olde days.
However,
this argument was also rejected by the Court. Unlike the District’s
characterization, surety laws did not deny a regular person the right to
carry a firearm unless they showed a special need for self defense.
Rather, everyone had a robust right to carry a firearm. It was only
restricted in the event that someone was reasonably accused of
potentially being a danger. The rationale explained in Heller squarely
rejected that such civil burdens shed light on the historical right
found in the Second Amendment.
The Court then turned to the
decisions issued by other Circuit Courts in relation to “good cause”
cases. It found that the majority have stated that burdens on carrying
firearms trigger intermediate scrutiny. Remember, Intermediate scrutiny
requires that the challenged law further an important government
interest in a manner that is substantially related to that interest.
The
Second Circuit found that the right to bear arms must count for less
than the right to keep arms since the right to bear has been regulated
more stringently. Likewise, the Fourth Circuit has concluded that as
conduct outside of the home is examined, firearms rights have always
been more limited and restrictions on such conduct is acceptable. The
Third Circuit relied on the reasoning set forth by the Second and Fourth
Circuits to conclude that a “good reason” law should be subject to
intermediate scrutiny. The Ninth Circuit, everybody’s favorite circuit,
determined in its en banc Peruta decision that because outright bans on
concealed carry have been upheld, “good reason” provisions must be
constitutional.
However, the Court was unimpressed with the
analysis that the circuit courts chose to use. Quoting the panel
decision from Peruta, the Court stated that “the Second, Third and
Fourth Circuits…declined to undertake a complete historical analysis of
the scope and nature of the Second Amendment right outside the home…As a
result, they misapprehend both the nature of the Second Amendment right
and the implications of state laws that prevent the vast majority of
responsible, law-abiding citizens from carrying in public for lawful
self-defense purposes…[They] failed to comprehend that carrying weapons
in public for the lawful purpose of self defense is a central component
of the right to bear arms.”
The 7th Circuit, the only other
circuit to engage in a historical analysis through the lense of Heller,
also struck down a more widely applicable carrying ban. The Court
concluded that carrying beyond the home, even in populated areas,
without special need, falls within the core of the Second Amendment’s
coverage.
After concluding that the right to carry beyond the home
was within the core of the Second Amendment, the court was left to
determine what level of scrutiny to apply in examining the challenge.
Grace and Wrenn argued that the ban should be struck down, without
applying any level of scrutiny, and for the court to apply the same
logic found in Heller. The District argued that intermediate scrutiny
was the correct level of scrutiny to apply.
After a brief review
of Heller, the Court stated that “[a]t a minimum, then, the Second
Amendment must enable armed self-defense by commonly situated citizens:
those who possess common levels of need and pose only common levels of
risk.” It further found that “if the Amendment is for law-abiding
citizens as a rule, then it must secure gun access at least for each
typical member of that class.” The “good reason” law imposed by the
District bars most people from exercising the right at all. Under the
Heller analysis, a complete prohibition of Second Amendment rights are
always invalid. As such, there is no need to apply any scrutiny
analysis.
The Court went on to say that “By declining to apply
tiers of scrutiny to a total ban on ownership, Heller I closed off the
possibility that courts would erroneously find some benefits weighty
enough to justify other effective bans on the right to keep common arms.
We would flout this lesson of Heller I if we proceeded as if some
benefits could justify laws that necessarily destroy the ordinarily
situated citizen’s right to bear common arms—a right also guaranteed by
the Amendment, on the most natural reading of Heller I.” The Court noted
that the “good reason” law was not a total ban, but also acknowledge
that the ban on ownership in Heller had limited exceptions before it was
struck down as unconstitutional. As such, the same analysis should be
applied in this case.
The Court summarized the analysis by stating
“[a]t the Second Amendment’s core lies the right of responsible
citizens to carry firearms for personal self-defense beyond the home,
subject to longstanding restrictions. These traditional limits include,
for instance, licensing requirements, but not bans on carrying in urban
areas like D.C. or bans on carrying absent a special need for
self-defense. In fact, the Amendment’s core at a minimum shields the
typically situated citizen’s ability to carry common arms generally. The
District’s good-reason law is necessarily a total ban on exercises of
that constitutional right for most D.C. residents. That’s enough to sink
this law under Heller I.”
The Court continued “Because the
District’s good-reason law merits invalidation under Heller I regardless
of its precise benefits, we would be wasting judicial resources if we
remanded for the court to develop the records in these cases.” As a
result, the Court vacated the orders below and remanded the cases to the
District Court with orders to enter permanent injunctions against the
enforcement of the District’s “good reason” law. In short, the “good
reason” requirement will no longer be part of the application process in
DC.
The District could seek review of the Circuit Court’s panel
decision, but it is unknown if they will pursue that review at this
time. As of the filming of this episode, orders have not yet been issued
for the permanent injunction against the District and the “good reason”
requirement is still currently in effect until that happens. If you
liked this episode or found it informative be sure to hit that like
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adamkraut.com.
And as always thanks for watching!
Links for this episode:
Wrenn,
et al. v. District of Columbia, et al. :
https://www.cadc.uscourts.gov/internet/opinions.nsf/E2F5AEE1CAB3A06C85258168004F3EE5/$file/16-7067.pdf
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