D.C. Is No Longer a Constitution-Free Zone

by Charles C. W. Cooke
At least for the moment, concealed-carry is at last allowed in the nation’s capital.

America’s last holistic concealed-carry ban has been pushed into the dustbin of history. On Saturday afternoon, while nobody was looking, a senior judge finally made up his mind, yielding ten beautiful words that I never imagined I would see together: “Federal District Court Strikes Down Washington, D.C. Handgun Carry Ban.” And that, happily, was that.

It was somewhat surprising to see a case of this magnitude being issued on a Saturday, but more remarkable, perhaps, is that it was issued at all. The plaintiffs first filed their case in August 2009 — almost five years ago — and they have been waiting patiently ever since. This was the lawsuit that was lost in space — the petition that was never to be resolved. Nothing, it seemed, could help it along — not Chief Justice John Roberts, who became so irritated by the system’s tardiness that he reassigned the case from Judge Henry Kennedy to Judge Frederick Scullin; not motions to expedite, which were filed and quickly forgotten; not writs of mandamus, the first of which was denied, the second left pending. And then, on Saturday, the deadlock broke and the litigants had their victory. Half a decade later, the court affirmed what should have been roundly obvious all along: that Washington, D.C., is not allowed to ignore the Constitution of the United States.

Judge Scullin’s ruling rests heavily upon the Supreme Court’s decision in 2008’s D.C. vs. Heller. “In light of Heller, McDonald, and their progeny,” the opinion concludes, “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.” More important, Scullin made sure explicitly to utilize reasoning previously advanced by the Seventh and Ninth Circuits — both of which have ruled that strict bans on the carrying of firearms are flatly against the Constitution. As Josh Blackman notes, Judge Scullin was clear about what he was doing, his explication “effectively [parroting] the 9th Circuit’s decision in Peruta.”

This matters. Although the Supreme Court has now twice acknowledged that the Second Amendment recognizes an individual right per se, the details of that protection are still being ironed out. As Scullin himself noted, for all of its significance, Heller does not “speak explicitly or precisely to the scope of the Second Amendment right outside the home,” nor does it adumbrate “what it takes to ‘infringe’ that right.” That question has been left to the lower courts.

Those courts are answering it rather variously. The Ninth and Seventh Circuits have previously held that the Second Amendment’s protection extends to the right to “bear” — as well as to “keep” — arms (“self-defense outside the home is part of the core right to ‘bear arms,’” the Ninth averred in Peruta, and “no amount of interest-balancing under a heightened form of means-end scrutiny can justify” its total infringement); while the Second, Third, and Fourth Circuits have ruled either that it does not extend so far or that the state’s power to curtail the right is strong enough to render it a dead letter. In consequence, Americans in different parts of the country now enjoy substantially different rights under the law. In one America, states are prohibited from imposing onerous burdens on individuals who wish to carry firearms; in the other, states have almost free rein. Scullin’s decision throws another pro-liberty judgment into the mix, deepening the chasm and increasing the likelihood that a future case will make its way to the Supreme Court for resolution. For those keeping score, we’re now at parity, with three restrictive decisions and three expansive decisions on the federal courts’ books. With a host of similar cases pending across the country, one wonders if the Roberts Court can hold off for much longer.

What does this mean for Washington, D.C.? A great deal, it seems. In his decision, Scullin instructed the city to cease enforcing the offending laws — immediately. A memo issued this morning suggests that the chief of police intends to acquiesce. Outlining for officers the “impact of Palmer v. District of Columbia,” the Metropolitan Police Department confirmed that the rules prohibiting all persons from carrying “either openly or concealed on or about their person, a pistol or any deadly or dangerous weapon capable of being so concealed” are no longer in force and, in consequence, that both residents and non-residents alike are henceforth permitted to carry firearms in the District.

Naturally, a few caveats obtain. The city’s ten-round-magazine limit is still in force, as are the city’s location restrictions. And no person prohibited by federal law from carrying or owning a gun may do so. The specific rules governing carrying, meanwhile, are set depending on one’s residency. Those legally resident in the city may carry only firearms that have been registered with the police. Non-residents, by contrast, are bound by the rules of their home state. If a visitor needs a permit to carry back home, he needs that permit to be eligible in D.C., too; if he doesn’t, as in Vermont and a few other “constitutional carry” states, he doesn’t in D.C., either. Bottom line: Until such time as a stay is issued — or the law is changed — Washington is open for business.

That the nation’s capital has had to be dragged kicking and screaming into compliance with the Constitution is an abject disgrace. Eleanor Holmes Norton, Washington, D.C.’s single non-voting delegate, contended earlier in the year that “making a big city, which is also the nation’s capital, and a prime terrorist target, one of the most permissive gun jurisdictions in the country would be madness.” With respect to Representative Norton, I would submit that the contrary is true. For almost four decades now, the seat of the United States government has brazenly disregarded the principles and parameters of the very Constitution by which it was created, setting a disastrous example for the rest of the country and daubing an unlovely blot on the escutcheon of liberty. “Congratulations, Americans,” the architect of the lawsuit wrote, when the response came down. “Your capital is not a constitution-free zone.” Not for now, at least.

 Charles C. W. Cooke is a staff writer at National Review.

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