In a decision that significantly broadens the right to carry a handgun outside one’s own home, a federal appeals court ruled Tuesday that a city or state may not constitutionally limit that right to individuals who have some specific need to protect themselves. Such a limit may not even be imposed in a densely populated urban area where guns lead to a high crime rate, the U.S. Court of Appeals for the District of Columbia ruled Tuesday by a 2-to-1 vote.
The ruling marked the latest defeat for the local government in the nation’s capital – its third straight failure with a local gun control law. Its first loss, in 2008 in the Supreme Court, led to a sweeping 5-to-4 ruling that the Constitution’s Second Amendment protects a personal right to have a gun for self-defense.
Although the Washington, D.C., government would now have the option of going back to the Supreme Court to challenge Tuesday’s ruling by the D.C. Circuit, the Justices have refused repeatedly to clarify just how far the Second Amendment right extends. In fact, as recently as last month, they turned aside a case testing California laws limiting public gun-carrying rights. Two Justices dissented from that denial – Justice Clarence Thomas, joined by Justice Neil M. Gorsuch.
The Supreme Court’s nine-year-old ruling in District of Columbia v. Heller assured a personal right to have a gun in one’s home, for self-defense. Since then, lower courts have reached a number of varying decisions on how to apply that ruling to gun restrictions outside the home. In fact, the most frequently disputed issued in gun rights cases for years has focused on whether the Amendment exists only for self-defense at one’s home.
In Tuesday’s decision by the D.C. Circuit Court, the majority declared that the right to carry a gun in public for self-defense is at “the core” of the Second Amendment’s right. The Amendment protects both a “right to keep” and a separate “right to bear” arms, and both of those are equally protected, the majority declared.
Struck down by the decision was a Washington, D.C., law that puts special restrictions on local residents’ chance to get a license to carry a concealed handgun in public. Local law does not allow any open carrying of a gun in public.
For a concealed carry permit, a local resident must offer proof of “a good reason to fear injury,” which is spelled out as requiring “evidence of specific threats or previous attacks” indicating a “special danger” to that person’s life. The local law would also allow a license to be issued to a person whose job requires them to carry around cash or valuables. Living or working in a high-crime area, however, is not sufficient to get a license. (Other federal appeals courts have upheld similar laws requiring proof of a safety risk before one can get a license to have a gun outside the home.)
In striking down the local ordinance, the Circuit Court majority said it amounts to a flat ban on access to a carrying permit, because it would exclude almost any ordinary, law-abiding citizen without specific reason to fear for their safety – embracing nearly all of the city’s population. The Supreme Court’s decision in 2008, whatever else it means, will not permit what amounts to a categorical ban on exercising Second Amendment rights, the majority declared.
In nullifying the law, the Circuit Court rejected the local government’s argument that the law was justified by the public safety needs due to the dense population of the Washington, D.C., area, the presence in the city of many prominent government and foreign officials, and a high-crime rate keyed to access to guns.
The decision arose out of two cases in which two District Court judges in Washington had ruled in opposite ways on whether the licensing law should be blocked pending a trial on its constitutionality. The Circuit Court said that, since it had gone ahead and found that the law is unconstitutional, there was no need to send the cases back to the trial courts for a trial on that question.
Circuit Judge Thomas B. Griffith wrote the main opinion, joined by Senior Circuit Judge Stephen F. Williams. Circuit Judge Karen LeCraft Henderson dissented, arguing that the local law should be judged by a middle level of constitutional analysis, not the strictest level, and it should be upheld. She argued that the “core” of the Second Amendment is a right to have a gun for self-defense in the home, so laws that regulate guns outside of the home should be judged with a more tolerant test. She also faulted the majority for treating the D.C. law as the equivalent of a flat ban.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
