Federal Judge (Again) Suspends Enforcement of D.C.’s Prohibitive CCW Regulation

“[T]he requirement’s intended effect,” the court noted, “is to prohibit the typical citizen from carrying a firearm outside his or her home for … legitimate and constitutionally protected purposes … notwithstanding the fact that he or she can successfully clear a multitude of qualifying hurdles.” It then held that because the District’s requirement does not focus on dangerous or irresponsible people but simply seeks to “reduc[e] the number of people exercising the right,” it is likely an illegitimate infringement on a “core” Second Amendment liberty, the bearing of arms for self-defense.

The order came in the case of Grace v. District of Columbia, which was brought last December after plaintiff Matthew Grace was denied a concealed carry license in the District for the sole reason that he could not articulate any specific safety threat that differentiates him from a typical D.C. resident. Grace’s case is the latest in a long line of litigation that dates back to the landmark case of District of Columbia v. Heller in 2008. Heller, of course, held that the Second Amendment protects an individual right to keep and bear arms for self-defense, irrespective of a person’s membership or service in an organized militia, and that D.C. could not ban handguns, as they are popularly chosen to exercise this right.

The District, however, has defied the Supreme Court’s ruling with a series of overreaching regulations.

First, it enacted an expensive and burdensome “registration” regime for gun ownership. Then it banned the carrying of firearms outside the home altogether. When the carry ban was declared unconstitutional, D.C. responded by enacting a “licensing” regime that required applicants to demonstrate an extraordinary need to carry a firearm.  This system allowed Police Chief Cathy Lanier to deny almost all applications – even by law-abiding people who were trained in using firearms and wanted to carry one for self-defense – prompting criticism that it was tantamount to a rationing system, if not a de facto ban. 

A lawsuit was filed to challenge the “good reason” requirement, and after years of litigation, a decision prohibiting enforcement of the requirement was thrown out on a technicality by a federal appellate court. That case was then transferred to another judge who issued a contrary ruling earlier this year allowing continued enforcement of the requirement. In the meantime, Grace filed his case and asked the court to suspend enforcement of the “good reason” regulation while the case was litigated, claiming that failure to grant immediate relief would result in irreparable harm to his Second Amendment rights. The court agreed and issued the order. While the court’s preliminary order does not resolve the case completely, it is a strong indication that Judge Leon is highly skeptical of the District’s claimed justification for the regulation.

Indeed, Judge’s Leon opinion contains some unusually blunt language in dismissing the District’s more outrageous legal theories. In response to D.C.’s argument that a “longstanding” tradition of completely banning carry in urban areas means that lesser regulations don’t even implicate the Second Amendment, Judge Leon wrote, “Please. Put simply, this argument strains credulity ….” His analysis of D.C.’s argument that the Second Amendment is distinguishable from all other constitutional rights in that it has “no intrinsic value” begins, “What poppycock!” He also accuses the District of “irresponsible” hyperbole for painting a sinister and unsubstantiated picture of the supposed harms that would come from making concealed carry licenses available to any qualified applicant who negotiated the still significant hurdles required to get one.

“One can only wonder what evidence, if any, the District could muster to demonstrate that the type of people who would be willing and able to successfully complete this regulatory gauntlet would nevertheless be likely to pose a safety risk to the greater community,” he wrote. 

While a welcome development for the civil rights of D.C.’s residents, Judge Leon’s order is only one phase of what promises to be a long process of resolving the contours of lawful concealed carry in Washington, D.C. The divergent views D.C. judges have shown toward carrying in the District underscore the importance of Congressional efforts like the Second Amendment Enforcement Act and the election of a president who will appoint jurists who take seriously their oath to defend and protect the Constitution.