On July 26, 2014, the District Court for the District of Columbia granted summary judgment to plaintiffs in Palmer v. District of Columbia, No. 1:09-CV-1482. One group of plaintiffs was District residents who were denied a permit to carry a handgun outside their homes because, as ordinary citizens, they were restricted to home possession of their weapons. The other group was non-residents who were denied such a permit because of they did not live within the District. The court granted each group relief under the Second Amendment.
For the first group, the relevant provisions were D.C. Code sections 7-2502.01(a) and 7-2502.02(a)(4). The former provides that “no persons or organization in the District shall possess or control any firearm, unless the persons or organization holds a valid registration certificate for the firearm.”
However, only one kind of permit is issued for ordinary citizens. Section 7-2502.02(a)(4) provides that individuals who are not retired police officers may only register a handgun “for use in self-defense within that person’s home.” Under these provisions, two plaintiffs who were residents of the District were not permitted anything other than possession of their handguns within their homes.
In addition, the District also has “a custom, practice and policy” of refusing to entertain gun registration applications by individuals who do not reside in the District and therefore proof of residency are required. In the past, former D.C. Code section 22-4506 empowered the District of Columbia’s police chief to issue licenses to carry handguns to individuals, including to individuals not residing in the District of Columbia. However, it was Defendant District of Columbia’s policy for many years not to issue such licenses. On December 16, 2008, the District of Columbia’s City Council and Mayor repealed the Police Chief’s authority to issue handgun carry permits.
Against this statutory history, the remaining plaintiffs were non-residents who sought a carry permit. They protested D.C. Code section 22-4504(a), which provides that “[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed.”
In any case, the District lacks any statutory mechanism to issue handgun carry licenses to any of the individual plaintiffs.
The court initially relied on the Supreme Court’s decisions in Distict of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Heller held that the Second Amendment codified a pre-existing, individual right to keep and bear arms and that the “central component of the right” was self-defense. McDonald found that the right extended to the individual states.
While the two cases generally expounded on the Second Amendment right, neither Heller nor McDonald speaks explicitly or precisely to the scope of the Second Amendment right outside the home or to what it takes to “infringe” that right.
The court noted that Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir. 2014) had validated the right to carry a weapon outside the home without demonstration of “good cause” to do so. Peruta presented a similar case because California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public locations” and requires the issuance of a discretionary permit to carry the weapon concealed in public outside the home. Because very few carry permits were issued, the California regulatory scheme violated the Second Amendment.
The court noted that District of Columbia appears to be the only jurisdiction that still has a complete ban on the carrying of ready-to-use handguns outside the home. Other jurisdictions are not indifferent to the dangers that the widespread public carrying of guns but those jurisdictions have decided that a proper balance between the interest in self-defense and the dangers created by carrying guns in public is to limit the right to carry a gun to responsible persons.
“In light of Heller, McDonald, and their progeny, 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 handguns outside the home is constitutional. The first group of resident plaintiffs had to be allowed to carry weapons outside their homes and the District had to devise a means to allow them to do so.
As to the non-resident plaintiffs, their status appeared to be the same as residents because no one was allowed to carry a weapon. Therefore, the District also had to deal with their Second Amendment rights in a reasonable fashion. Because no law now permitted the non-residents to carry a weapon, their claim that the District had violated their constitutional right to travel and equal protection of the law was premature.
The bottom line is that District officials are now enjoined from enforcing the “home-only” regulations and it is in their interest to devise adequate regulations to maintain order. The opinion appears to be effective immediately, but it is reasonable to assume that an appeals court will impose a stay on the injunction until the District achieves the resolution of the case on appeal.
Bear in mind that Peruta is not yet finally resolved and that this opinion relies almost entirely on Pertuta-style analysis. Peruta is now before the Ninth Circuit on the California Attorney General’s February 27 petition for an en banc hearing and motion for intervenor status.
Moreover, if the Second Amendment right is not unlimited and therefore regulation is permissible, the devil is always in the details. The District itself provides an example of post-Heller gun regulation. In Heller v. District of Columbia, No. 1:08-cv-01289-JEB (DDC 05/15/14) [Heller III], the DC District Court approved of an elaborate plan for the issuance of a weapons permit by the District of Columbia.
Heller III is the follow-up to the Supreme Court’s landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008) [Heller I]. After the 2008 decision, the District acknowledged Heller I’s Second Amendment protection for handguns in the home for self-defense and enacted a that banned assault weapons and large-capacity magazines and imposed registration requirements for handguns and long guns. (Firearms Registration Amendment Act of 2008, D.C. Law 17-372; 56 D.C. Reg. 3438 (May 1, 2009), as amended, D.C. Law 19-170; 59 D.C. Reg. 5691 (May 15, 2012))
The core requirement of the new legislation is a District-wide gun registry which is complex. The reader is advised to consult the opinion for the full details.
The following articles may be of interest to those investigating Peruta/Second Amendment issues:
“Sheriff’s Response to Ninth Circuit Leaves Issue of AG’s Participation in Peruta Appeal Wide Open,” law.com (05/15/2014), http://www.law.com/sites/jamesching/2014/05/15/sheriffs-response-to-ninth-circuit-leaves-issue-of-ags-participation-in-peruta-wide-open/#ixzz31oGslN00
“Ninth Circuit Issues Order in Peruta Gun Permit Case Requiring Sheriff to Clarify His Status On Appeal,” law.com (05/03/2014), http://www.law.com/sites/jamesching/2014/05/03/ninth-circuit-issues-order-in-peruta-gun-permit-case-requiring-sheriff-to-clarify-his-status-on-appeal/
“Tactical Considerations in the Pending Motion En Banc to Review Ninth Circuit’s Peruta Decision on the SecondAmendment’s Effect on “Concealed Carry” Permit Issuance in California,” law.com (04/12/2014), http://www.law.com/sites/jamesching/2014/04/12/tactical-considerations-in-the-pending-motion-en-banc-to-review-ninth-circuits-peruta-decision-on-the-second-amendments-effect-on-concealed-carry-permit-issuance-in/
“California Gun Laws Under Fire,” The Recorder (03/14/2013)