In a 2-1 decision, a U.S. Circuit Court panel issued an injunction against Washington, D.C.’s stringent standards for issuing licenses to carry concealed handguns in the district.
Since Washington began issuing licenses in 2014, it has required applicants for pistol permits to demonstrate “a good reason to fear injury to themselves or their property,” a higher bar than imposed by many states. In their ruling, the judges declared that the district’s criterion “impinges on core Second Amendment conduct,” amounting to a “total ban” on the carrying of concealed guns by most residents.
Whether Americans’ right to bear arms includes a right to carry hidden firearms in public spaces is at the center of some of the most consequential battles in the gun debate today. Last month, the Supreme Court declined to hear arguments in Peruta v. California. The plaintiff in that case was appealing a 2016 decision from the 9th Circuit of Appeals that upheld the state’s own “good cause” requirement.
One of the petitioners challenging Washington’s concealed-permit system is a group called the Pink Pistols, which advocates for LGBTQ gun ownership; the other is a private gun owner who had been denied a license under the “good reason” test.
Lawyers representing the district have 14 days to ask the full court to rehear Tuesday’s decision, and the injunction will not go into effect until then. That will allow law enforcement to continue issuing licenses using the “good reason” requirement, according to Adam Skaggs, chief counsel for the Law Center to Prevent Gun Violence. If the full circuit court does not agree to hear the case, the district could ask the Supreme Court to hear the case. If it opts not to, the injunction then becomes permanent.
Washington’s strict gun laws were also the subject of the 2008 case, District of Columbia v. Heller, in which the Supreme Court for the first time interpreted the Second Amendment to protect individual gun ownership.
In their decision on Tuesday, the judges remarked on the gaps in the Heller decision, writing that, when it comes to constitutional challenges to gun laws, “The Supreme Court has offered little guidance. Its ‘first in-depth examination of the Second Amendment’ is younger than the first iPhone.”
After the high court passed on Peruta earlier this summer, Joseph Blocher, a professor at Duke University School of Law, who served on Washington’s legal team during the Heller battle, told The Trace that it was “a plausible indication that the court doesn’t have an appetite for a Second Amendment case right now.”
Does the new decision change the chances that the Supreme Court will weigh in on the concealed-carry question? Here’s Skaggs’s take:
Yes — if the freeze on D.C. “good-reason” law stands. “This decision is out of step with decisions from the 2nd, 3rd, 4th, and 9th Circuits, all of which reached exactly the opposite conclusion. If this decision stood, it would create a very clear Circuit split, which is the type of thing that makes the Supreme Court step in and decide to take these cases. But I think the odds are fairly significant that the full D.C. Circuit will reconsider this decision.”
The decision isn’t a huge surprise. “The judges are very conservative. I think that when the panel was announced, there was a lot of concern that these were very conservative judges.” Thomas B. Griffith, who wrote the opinion, was appointed by George W. Bush. Griffith joined the 2007 decision that struck down the district’s three-decade handgun ban, which was affirmed by the Heller ruling. Karen LeCraft Henderson, a Reagan appointee who wrote today’s dissent, was also the lone dissenter on the 2007 decision.
Whatever the outcome of this case, there will still be lots of restrictions on concealed carry in D.C. “Because the District is filled with so many sensitive places, government facilities and so forth, the number of places where you’re allowed to carry guns in D.C., even if you have a license, is fairly limited. If this decision stood and they were stuck with a decision that said, ‘You pretty much have to hand these permits out to anyone who wants one,’ they could look very carefully at the range of places where concealed carry is or is not allowed at the moment and add additional sensitive locations.”