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DC Circuit Overturns “Good Cause” Requirement

This opinion was just handed down today, before Judges Griffith and Williams who were in the majority, and Judge Henderson who dissented. I’d note that Judge Griffith was a George W. Bush appointee. Judge Williams was a Reagan appointee, and Henderson an George H.W. Bush appointee. Elections do matter, and as I’ve said before, we can move the ball forward even with very flawed candidates.

 

 

This point brings into focus the legally decisive fact: the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self- defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen. We say “necessarily” because the law destroys the ordinarily situated citizen’s right to bear arms not as a side effect of applying other, reasonable regulations (like those upheld in Heller II and Heller III), but by design: it looks precisely for needs “distinguishable” from those of the community. So we needn’t pause to apply tiers of scrutiny, as if strong enough showings of public benefits could save this destruction of so many commonly situated D.C. residents’ constitutional right to bear common arms for self-defense in any fashion at all. Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test that was appropriately written and applied, so we strike down the District’s law here apart from any particular balancing test.

Finally, a court willing to reject interest balancing approaches to the Second Amendment! The ruling upholds licensing for carry, which is disappointing, but at this point eliminating “good cause” requirements and rejecting the assertions that entire cities can be off limits to carry is a step in the right direction.

We pause to draw together all the pieces of our analysis: At 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.

One thing I’d notice, however, as we look toward this case possibly moving forward, is that Justice Kennedy has not announced any retirement, and it’s getting late in the summer. The Court goes back to work September 25th.

33 Responses to “DC Circuit Overturns “Good Cause” Requirement”

  1. ARL says:

    If DC appeals (and I assume they will), wouldn’t they appeal for an en banc decision from the DC circuit first, before going to the USSC?

    • Sebastian says:

      Yes, but I assume no matter how that goes, it will eventually go to SCOTUS.

      • ARL says:

        Now that I think about it, appealing for an enbanc ruling from the DC circuit means it’ll take more time for the case to get to SCOTUS, which means that there’s more time for certain justices to retire or die off. DC would probably want SCOTUS to take up the case before that happens, and therefore might just appeal to SCOTUS directly, as presumably any new justices would have a more expansive view of the 2A.

      • Richard says:

        Which will fail again without 2 new justices.

        • Tony says:

          If DC appeals it to SCOTUS, and they refuse CERT, it would leave this ruling in place, which would cause a conflict with the Peruta result in the Ninth. Historically, SCOTUS prefers to resolve those conflicts.

          • Ian Argent says:

            There’s already a circuit split. 7th made IL go shall-issue (I think everyone else in the 7th already was). I think all the circuits but 7th and DC allowed may-issue.

            • Publius says:

              IL is more of a strong may-issue state (meaning the presumption is in favor of issuing if legal) than a shall-issue state.

              The only thing they are shall-issue on is the separate card, which you have to have in order to purchase or possess any firearm in the home.

              • Ian Argent says:

                That’s getting into the weeds that hide the line between may-issue and shall-issue; then. By that reasoning, PA is a may-issue state because of their “not in the public interest” clause.

                • Andy Barniskis says:

                  “By that reasoning, PA is a may-issue state because of their ‘not in the public interest’ clause.”

                  Sorry for the ancient-history reference, but that’s usually all us old guys got: Back in 1995 I took (or attempted to) the Bucks County Sheriff to court, essentially on that issue, but including others.

                  The sheriff imposed the requirement that an applicant for a carry permit obtain a “doctor’s note” attesting to their mental health. There were of course many practical problems with that (most doctors were reticent to attest to anything not in their field of expertise, and possibly the majority of applicants didn’t have a regular family doctor) but the main issue was, the sheriff was limited by state law in the implementation of the application process; he was requiring more than codified. He essentially argued his duty to protect the “public interest.”

                  I applied (for renewal) without the doctor’s note, was denied, so had standing to file suit. Ultimately the sheriff mooted my suit by unilaterally changing his policy and dropping the doctor’s note requirement the Friday before we were to meet in court the following Monday; so I figure I had a sound case. The sheriff didn’t want to get on his fellow sheriffs’ shit-list by establishing a limiting precedent.

          • Richard says:

            Historically, Roberts prefers to duck conflicts. Put him together with the 4 open liberals and they will deny cert leaving the en banc overturning in place.

    • dollup15 says:

      It’s an option, not a requirement. After a court of appeals panel makes a decision, the losing party can ask the full cicuit to reconsider the decision en banc, or can seek an appeal from SCOTUS directly. Asking for an en banc rehearing is not an appeal per se, but requesting the same court to reconsider the issue it already decided, just with more judges. That’s why it’s not required.

  2. Patrick Henry, the 2nd says:

    A court does its job! It does happen!

    I read the whole opinion, and its exceedingly well written. The logic is impeccable, and it really puts to shame how the other circuit courts dealt with the “good reason” requirement.

    I encourage others to read the whole thing as well.

    • BC says:

      The dissent is embarrassingly bad. The crux of Judge Henderson’s argument appears to be that, because Heller states that the right to self-defense is most acute in the home, outside-the-home conduct is by implication not part of the “core” Second Amendment right (and laws touching on that conduct should be reviewed under the intermediate-scrutiny-in-name-but-rational-basis-in-practice standard used by other Circuit Courts of Appeals).

      Just a dog’s breakfast of illogic.

      • Patrick Henry, the 2nd says:

        The dissent is really half assed. More “this is the result I want, so here is how I make it fit” type logic.

  3. Ian Argent says:

    Two quick thoughts:

    One, licensing carry is about not freaking the mundanes, in the end. Except for Vermont (which never had permitting in the first place, and IL, which never had may-issue), it appears to be a requirement that the regime goes from may-issue, to shall-issue, to con carry, and it takes a while at each step. Don’t let the perfect be the enemy of the good.

    Two, will DC appeal? IL didn’t when they lost their bar on carry at the 7th, but CA did when they lost Peruta. And if they appeal to the Circuit en-banc, will the circuit go for it? IIRC they don’t have to. And if this goes to SCOTUS, will the fact that a denial of cert will NOT result in status quo ante mean anything? I’m fresh out of tea leaves.

    PS: will this take the pressure off Congress to do something about their carry rights if they can get DC permits?

    • Scott says:

      I think the deal with licensing will go the way of surety bonds. We’re dealing with a fundamental right and we don’t pay a surety to exercise our other fundamental rights. Will licensing be argued this way? Time will tell. Government can’t charge fees for us toe exercise our fundamental rights.

      Perhaps reciprocity will come before licensing is quashed.

  4. JC_VA says:

    Is there any indication that SCOTUS denied Peruta in favor of this one?

    Either way, we still have to fill seats appropriately when they become vacant.

    • Ian Argent says:

      No way to know. We can only be reasonably sure that at least two and no more than three of the Heller/McDonald majority has denied cert on carry cases up until now.

  5. Ian Argent says:

    In a more perfect world, the states would come to the realization that the 2A means what it says; or Congress would take up the power of the 14A and chastise the states with it; which may well be what CJ Roberts is hoping will happen.

    But it won’t, not in my lifetime

    • Patrick Henry, the 2nd says:

      I’d love to see Congress use its 14A powers to enforce it against the states. Not likely as you said unfortunately.

  6. Carl from Chicago says:

    Dollars to donuts, DC will request en banc review, will be granted, and the panel decision will be vacated finding for D.C. Gura and co. will then appeal to SCOTUS. That is my prediction having watched this issue play out across the nation and over many years.

  7. Stretch says:

    No matter what the courts at any level decide the DC city counsel, mayor, police chief and representative will ignore any ruling in favor of the Second Amendment.
    We shan’t see “shall issue” in DC in my lifetime (ETA ’til final check out; 25 years).

    • Andy Barniskis says:

      “No matter what the courts at any level decide the DC city counsel, mayor, police chief and representative will ignore any ruling in favor of the Second Amendment.”

      For an illustration, though possibly not of the same importance, consider my recent recital of how the first Pennsylvania State Supreme Court decision establishing state preemption of regulation of firearms and hunting laws, was 53 years ago, and despite repeated reaffirmations of that over the years, municipalities still do as they damn see fit.

    • RAH says:

      i disagree GOP congrescritters were shot at and they due to DC law could not carry in and out of DC. DC carry restrictions are toast Basic demand by law givers will ensure shall carry Plus Congress can change Dc law any time they wish

    • beatbox says:

      I disagree. I think you will, but it will cost you big $$.

  8. Carl from Chicago says:

    Stretch: I would not go as far as you. Folks of course said that also about Chicago and they have been brought (kicking and screaming) into at least partial acceptance of a right to carry arms in public. The national tide has been turning strongly in favor of our position on this issue for the past 30 years. D.C. too will one day be brought into compliance, and I predict the when shall be closer to 5-10 years than to 25.

  9. Whetherman says:

    “we can move the ball forward even with very flawed candidates.”

    Since we’re doing sports metaphors, it occurred to me that while flawed candidates are keeping our eye on one ball they’re sorta-kinda moving forward, the rest of their flawed team may be in the locker room stealing our other stuff.

    But, ball games are kind of “single-issue,” aren’t they? ;-)

  10. Small victory and small step in the right direction.

  11. beatbox says:

    I hope all NRA members are able to throw a few bucks to SAF. They have done much more in the past 20 years to advance gun rights than the NRA.

  12. beatbox says:

    There are no good options for the DC.

    1. Don’t appeal. Not a real option. They will, if only for ideological reasons like they did with Heller.

    2. Appeal directly to SCOTUS. They’ve shown no interest in the issue. And if they did take it, (altho not a slam dunk), the odds are against them winning.

    3. En banc appeal. They will likely win, and SAF will appeal to SCOTUS. However, by that time, the court will likely have 1, of not 2 more sympathetic judges.

    Betting money says they go with option 3.

    Hang on DC. Your time is coming.

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