The Corner

Good News for the Second Amendment in Washington D.C.

Good news from the nation’s capital:

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.

The case was brought in February by the Second Amendment Foundation who joined the suit filed in U.S. District Court for the District of Columbia, Wrenn v D.C., in support of three private citizens who were denied permits by the city. Two of these are residents of the city and the third a Florida resident who lives in Virginia.

All three had their concealed carry permit applications refused by Metro Police Chief Cathy Lanier. None of the three, who desired permits for the purpose of self-defense, could meet the District’s strict requirement to prove a need or good reason to do so beyond a desire for self-defense.

While the city argued its guidelines were lawful and in line with past practices from older gun laws in the District, going back to 1857, the court did not agree.

In his opinion, Justice Scullin made it clear that he expects the plaintiffs to prevail in the long run: 

This Court finds that Plaintiffs have established that they are likely to succeed on the merits of their claim that the District of Columbia’s ‘good reason’/‘proper reason’ requirement was unconstitutional when enacted and continues to violate their Second Amendment right to bear arms for the purpose of self-defense every day that the District of Columbia continues to enforce it. Thus, the Court concludes that Plaintiffs have established that they will suffer irreparable harm if the Court does not grant their motion for a preliminary injunction.

Would that this were the standard response of American courts during all Second Amendment litigation.

As for Scullin’s reasoning? Well, that was pretty encouraging too. Scullin writes:

While, as stated, Defendants argue that the District of Columbia’s “good reason”/”proper reason” requirement relates reasonably to its interest in preventing crime and protecting public safety, they have not established that relationship.

The fact that an individual may be able to demonstrate a greater need for self-protection, and therefore meets the “good reason”/”proper reason” requirement, does not indicate, in any way, whether that person is less likely to misuse handguns or may be less dangerous. See Drake, 724 F.3d at 454 (Hardiman, C.J., dissenting).12 Nor does the District of Columbia’s “good reason”/”proper reason” requirement make it less likely that those who meet this requirement will accidently shoot themselves or others or engage in criminal activity than those who cannot meet this requirement. See id. 

The fact that a person may have a greater need for self-protection says nothing about how limiting the carrying of handguns to such individuals would result in a reduction of risk to other members of the public or reduce violent crime. Is the Court to conclude that people who do not have a heightened need for self-protection are more likely to commit violent crimes?

Furthermore, even if the Court were to accept the proposition that handguns are used disproportionately in the commission of violent crimes, how is that use related to whether or not a person has a greater need for self-protection? Moreover, isn’t it possible that even persons who cannot manifest a present need for self-protection are just as likely to be victims of a violent crime. Simply put, the District of Columbia’s “good reason”/”proper reason” requirement will neither make it less likely that those who meet this requirement will present a risk to other members of the public or commit violent crimes than those who cannot meet this requirement.

Therefore, after reviewing the record in this case, the Court finds that Defendants have failed to demonstrate that there is any relationship, let alone a tight fit, between reducing the risk to other members of the public and/or violent crime and the District of Columbia’s “good reason”/”proper reason” requirement. 

Going forward, this is extremely important. Why? Well, because Scullin is effectively arguing, a la Peruta, that a “shall issue” permitting standard is constitutionally mandatory. It may be possible, he concedes implicitly that allowing nobody to carry a gun would reduce the number of shootings in the district. But that’s pretty much irrelevant because “no issue” systems are flatly illegal under the Second Amendment. As such, the important question is not whether the government can completely ban the carrying of firearms, but how restrictive its permitting criteria may be. Scullin’s answer to this question, clearly, is “not very” — or at least, “not very if the application process hinges upon the demonstration of ’good cause.’” 

In the long run, this reasoning has a great deal of potential. Indeed, if the Supreme Court were to pick it up and run with it, one can only imagine that the vast majority of the country’s “good cause”-based “may issue” regimes would be dead in the water. For now, though, it should be remembered that the decision was a narrow one, that it is only temporary, and that it has no bearing outside of Washington D.C. The preliminary injunction that Scullin granted the plaintiffs does not strike down the law’s training requirements; it does not nix the fees that the city levies; and it does not strike down the attendant background-check or fingerprinting processes. Rather, it impermanently prohibits the city from enforcing the part of the law that requires applicants to explain why they seek a carry permit. As Scullin was keen to note:

This conclusion should not be read to suggest that it would be inappropriate for the District of Columbia to enact a licensing mechanism that includes appropriate time, place and manner restrictions on the carrying of handguns in public The District of Columbia’s arbitrary “good reason”/”proper reason” requirement, however, goes far beyond establishing such reasonable restrictions. Rather, for all intents and purposes, this requirement makes it impossible for the overwhelming majority of law-abiding citizens to obtain licenses to carry handguns in public for self-defense, thereby depriving them of their Second Amendment right to bear arms.

The practical upshot of this injunction is that anybody in the United States is now eligible to apply for a Washington D.C. concealed carry permit, providing that they can pay the $75 fee and undergo the 16-hour training class (or demonstrate that they are already trained). This state of affairs will obtain until the case is finally resolved. A conference will be held on July 7.

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