Breaking: DC Carry Ban Ends?

The Court of Appeals for the D.C. Circuit just issued a ruling that may have a profound effect on carry laws in America. A prior ruling in another court held that the District of Columbia has the authority to enact a general ban on the carry of arms within the District because there were exceptions allowed for people with a substantial need. But today’s ruling is contrary to that earlier opinion. Today’s ruling affirms the right of individuals to bear arms and that social circumstances cannot be required to exercise that right.

It wasn’t an unanimous opinion, though. One of the ruling judges wrote in her dissent that she is “certain the core Second Amendment right does not (extend beyond the home)”. As the Sacred Cow Slaughterhouse noted, the First, Fourth, and Fifth Amendments don’t stop at your door, so why would the Second?

 

So does that mean that DC residents can start carrying a pistol tomorrow? You know it isn’t that easy. This case will likely go to SCOTUS. But with the current composition of the court and given the way earlier cases have gone, odds are decent that SCOTUS will also rule that blanket carry bans are unconstitutional, even if allowances are made for special circumstances. It does not mean that certain “reasonable” restrictions cannot be placed on carry by the state, such as permit requirements.



Andrew

Andrew is a combat veteran of OEF and has performed hundreds of ballistic tests for his YouTube channel, The Chopping Block (https://www.youtube.com/user/chopinbloc). He is an avid firearm collector and competitor and lives with his family in Arizona. If you have any questions, you may email him at choppingblocktests@gmail.com


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  • Drew Coleman

    > to keep and bear arms

    Key word. Bear. End of story.

  • Corey R. Wardrop

    Unless, like the Perunta case, SCOTUS simply dodges it. That would be fine by me, I suppose.

    • Sampson

      Now we have a circuit split, so it may be more likely for the Supreme Court to hear this case. That, of course, comes with it an inherent danger of the high court going the way of the flawed Peruta decision, but nothing ventured, nothing gained.

      • matt

        We already have a circuit split between 7th and 9th and the SCOTUS declined to hear the Peruta case. DC will go for an en banc hearing first to try and get it overturned like CA did in Peruta. If it isn’t overturned in an en Banc hearing no one knows if SCOTUS will take it up. This is the exact reason we need the President to fill and Congress to approve of lower level Federal Judges.

        • James Young

          Yep, fill those vacancies fast. Get the Senate confirming those

          • Gun Fu Guru

            #1. How would that help change the outcome?
            #2. You can’t blame the Senate. Trump has only nominated 24 people to the 135 openings.

          • James Young

            #1 I didn’t realize there were no openings as you said in your other post.
            #2 I’m not blaming anyone; I was saying it as a “Yeah, let’s get those judges approved asap!” I know it takes time to vet a 135 judges by the president and then the senate.

          • FightFireJay

            1. Lower court Judges often become Higher court judges, so filling the courts with Judges that support our bill of rights is a good thing in the immediate future (less frivolous cases against gun owners) and in the long term future (larger pool of candidates for Appellate and Supreme courts.

            2. I don’t think he was trying to blame anyone, just stating the need. Presidents, for better and worse, often leave Federal judge slots open. I wonder why…?

          • Gun Fu Guru

            “1. Lower court Judges often become Higher court judges, so filling the courts with Judges that support our bill of rights is a good thing in the immediate future (less frivolous cases against gun owners) and in the long term future (larger pool of candidates for Appellate and Supreme courts.”
            Your long term point is valid (although it is unlikely that a Democratic president will nominate one of Trump’s nominees). Your short term point is irrelevant as long as the appeals courts can (and often do) overturn district court judges when they dismiss cases.

            2. I don’t think he was trying to blame anyone, just stating the need. Presidents, for better and worse, often leave Federal judge slots open. I wonder why…?”
            I wasn’t calling out @JamesYoung; I was making a general statement. Many people believe Trump when he says “Democrats are obstructionists” who are leaving his appointments in limbo. Just about half of the appointments were made in the last two weeks. It’s hard to blame them when he didn’t nominate anyone.

          • S. Plankenberg

            Not happenin’.
            The Dems are too good at keeping the Trump administration tied up in knots over false narratives, and the Rebumbs just keep falling for it.

            And then there is the Re umblican propensity to form circular firing squads whenever one of their number runs afoul of the MSM OR Deep State.

        • Gun Fu Guru

          “This is the exact reason we need the President to fill and Congress to approve of lower level Federal Judges.”
          This doesn’t logically follow. How would nominating and confirming federal judgeships change the ruling? There are no open positions at the District of Columbia Circuit Court of Appeals [see below #1]. Even if the existing sixteen CCA vacancies get filled by Trump, it won’t change the D/R makeup of any CCA which is where the controversy exist [see below #2]. Republicans would still control just four of the thirteen CCAs.

          [1] http://www . uscourts . gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies
          [2] https://www . brookings . edu/blog/fixgov/2016/11/17/trump-lower-courts/

          • James Young

            Well that sucks

          • S. Plankenberg

            The Dems still run Congress, behind the scenes and in public.
            They are in no hurry to confirm judges they don’t like.

      • Gun Fu Guru

        SCOTUS doesn’t take cases just because the circuits are split. They will likely take this one because the appeals court ruled against the government.

  • Gun Fu Guru

    The Supreme Court is will hear this case when it is inevitably appealed since the citizen won. They tend to dodge cases when the government won at the appeals court.

    • matt

      I think SCOTUS has declined hearing the gun cases because they know the law is in favor of the citizen. The liberal justices we know where they are at, and we know where Clarence Thomas and Neil Gorsuch stand. It is the ones in the middle that have cold feet. This has 7 days to be implemented and 30 days to be appealed. We’ll see what happens, meanwhile my application is ready for next week.

      • Gun Fu Guru

        “I think SCOTUS has declined hearing the gun cases because they know the law is in favor of the citizen.”
        That’s my point. By not hearing this case, the citizen wins. The only way the government wins if they appeal and win it there.

        “The liberal justices we know where they are at, and we know where Clarence Thomas and Neil Gorsuch stand. Thomas and Neil Gorsuch stand. It is the ones in the middle that have cold feet.”
        It’s fairly safe to assume that Alito, Roberts, and Kennedy are on the “pro-carry” side. I think even the liberal justices would be in favor of carrying with certain restrictions. The Supreme Court unanimously decided last year to overturn a conviction in Massachusetts where a woman was carrying an outlawed taser.

        “We’ll see what happens, meanwhile my application is ready for next week.”
        We will. The District can appeal to the Supreme Court or to the CCA for an en banc hearing.

        FYI: If you want a good analysis of the ruling, see below. That opinion section of Washington Post is led by Eugene Volokh. He basically created the argument that carried the day in in the Heller decision. I wager to say that he will write an article on it later today. https://www . washingtonpost . com/news/volokh-conspiracy/wp/2017/07/25/d-c-circuit-upholds-right-to-bear-arms-for-d-c-residents/?utm_term=.dc6148917dd1

        • J Smith

          If it goes en banc we almost certainly lose this and embolden any state that is or goes Dem in future to end shall issue there.
          if it goes to SCOTUS with Kennedy and Ginsburg on the bench it is also an almost certain loss.

          when it looked like Hillary would win this was a may as well try now as ever case. Once trump won. all possible means to apply the brakes should have been attempted to delay until Ginsburg or Kennedy were gone and replaced.

          • Gun Fu Guru

            How does Kennedy ensure “an almost certain loss”? He voted with the majority in District of Columbia v. Heller and McDonald v. Chicago. The Court unanimously held last year that Heller was valid precedent when it decided in Caetano v. Massachusetts that stun guns were a valid extension of the Second Amendment based on Heller‘s wording. Also, it’s worth noting that Caetano was carrying her stun gun in public when she was arrested for having it. This gives more credence to my claim that even the justices would be open to carrying with certain restrictions (which was what Heller held). The only semi-credible legal claim against carrying was that the Second Amendment was not an individual right. Now that has been refuted time and again by the the court, I think the justices don’t have a leg on which to stand to refuse at least some form of carrying.

          • J Smith

            Because Kennedy does not support carry

          • Gun Fu Guru

            Based on?

          • J Smith

            Based on the statements of his clerks. he will side with may issue.

          • Gun Fu Guru

            Statements of his clerks made where?

          • Marcus D.

            The lawsuit was filed February 2015. A preliminary injunction was granted in late May, 2015, and the appeal was filed in June, with a stay granted.The court of appeal reversed on procedural grounds, and the trial court denied the motion for preliminary injunction March 2016, with an appeal filed immediately thereafter. Somewhere after that, Wrenn was joined with the Palmer case, which is even older, and both were briefed over the spring and summer of 2016. I don’t know when oral argument was had, but parties do not get the option of selecting the date. There was (and is) absolutely no way to delay a case indefinitely hoping that the mix on the Supreme court bench may be changed by an election/retirements/ or deaths of justices.

          • J Smith

            There was (and is) absolutely no way to delay a case indefinitely hoping that the mix on the Supreme court bench may be changed by an election/retirements/ or deaths of justices.

            Who said the delay has to be “indefinite” delay

            there are a dozen ways to delay it to some extent.

          • Marcus D.

            The court itself can delay things, the lawyers not so much. Palmer’s first iteration was delayed years when the trial court just didn’t act at all, essentially, for five years. There are no rules on timing for federal courts, per se, but the attorneys are held to fairly strict timelines. What we are talking about is a delay for years while the composition of the Supreme Court (may be) is changed, and there is no way for the plaintiffs to engineer that..

        • datimes

          Kennedy is talking of retirement and Ginsberg is soon to meet the Grim Reaper.

          • Marcus D.

            Kennedy has already hired his clerks for next term, so it will be at least another year.

    • gunsandrockets

      SCOTUS did not hear any appeal when Illinois lost at the appellate level in 2012.

      https://www.usatoday.com/story/news/nation/2012/12/11/concealed-carry-illinois/1762073/

      The simple weird fact is, SCOTUS has been mute on the 2nd Amendment since their last ruling in 2010 in the McDonald v Chicago case.

      Since 2010, every lower Federal Court has been free to do almost anything they want on the 2nd Amendment, Despite the Heller and Mcdonald cases, despite Circuit splits. Some recent lower Court rulings even arguably directly contradict some of the SCOTUS findings in D.C. v Heller.

      This tension can not last. Which way SCOTUS eventually flops can not be predicted with certainty.

      • Gun Fu Guru

        Funny. Caetano v. Massachusetts proves you wrong.

        • gunsandrockets

          Oh really? You claim a single case where SCOTUS made no ruling other than to kick it back down to the lower Court proves me wrong?

          As opposed to the numerous appeals SCOTUS turned down, despite vital 2nd Amendment matters, despite Circuit splits, despite even lower Court rulings which directly violate Heller?

          Do go on…

          • Gun Fu Guru

            “Oh really? You claim a single case where SCOTUS made no ruling other than to kick it back down to the lower Court proves me wrong?”
            You do realize that the most common action of the Supreme Court (other than to deny a hearing) is “to kick [a case] back down to the lower Court” after it overturns a ruling, right? Cases always go back so the originating court can deal with the fallout. It happened in MacDonald and in many other cases.

            “As opposed to the numerous appeals SCOTUS turned down, despite vital 2nd Amendment matters, despite Circuit splits, despite even lower Court rulings which directly violate Heller?”
            #1. Granting certiorari is not a right; it’s a privilege.
            #2. They are likely trying to delay what they know is inevitable.

          • gunsandrockets

            The Massachusetts stun gun ban is still law in Massachusetts. That is how narrow the Caetano ruling was.

            http://www.salemnews.com/news/state_news/stun-gun-ban-oppoinents-city-sjc-ruling/article_85fb9df0-6cb8-11e7-8c64-435236b79336.html

          • Gun Fu Guru

            And so are buggery laws. What’s your point?

          • Paul Rain

            I guess the quote “point” unquote would be that if I were a bugger in the 1980s, I would not rely on the fact that I would probably be able to engage in buggery without consequence, legally speaking, if it went to the Supreme Court. I would be waiting for a decision of consequence.

          • Gun Fu Guru

            “1: Caetano was a very limited procedural ruling…”
            What you call “a very limited procedural ruling” is what I lovingly refer to as a “you can’t be that stupid” ruling. The Massachusetts high court completely disregarded established SCOTUS precedent with the arguments it used to convict Caetano. That being said, the law was not found unconstitutional but rather that the arguments used violated were invalid.

            “It is possible that the state’s highest court will call for new legal briefs or a hearing on what to do about the Boston woman in the case, Jaime Caetano.”
            Utter bullshît. She was found not guilty at a bench trial and can’t be tried again.

            “2: How does Caetano support your contention that “[SCOTUS] tend to dodge cases when the government won at the appeals court.”? Since Massachusetts won at the State Supreme Court level?”
            #1 Let me ask you: does my “Caetano proves you wrong” beat your “SCOTUS has been mute on the 2nd Amendment since their last ruling in 2010 in the McDonald v Chicago case”?
            #2[1]. I never said Caetano proved that.
            #2[2]. I said SCOTUS has a “tendency…” That doesn’t mean that it does that every time.
            #2[3]. My analysis is true for everything, not just gun related issues. Although it might be more accurate to say that the Supreme Court gives extra consideration when the government loses a case than when the government wins.

          • gunsandrockets

            I wish that the Caetano case had more import in supporting the 2nd Amendment. But the simple fact is it doesn’t.

            That such a slam dunk case was dodged to the maxim possible extent (short of allowing a conviction) by SCOTUS hardly contradicts my opinion.

            True enough for one single person SCOTUS made a difference where the 2nd Amendment was at issue. But that ruling has no power to change anything else for any other person in America as far as 2nd Amendment rights.

            So, yes. For all practical purposes SCOTUS has been mute on 2nd Amendment rights since 2010.

            They have let stand pro gun rulings, such as from the 7th Circuit. The have let stand numerous anti-gun rulings, for the entire nation including the 7th Circuit. And there have been so many important rulings too.

            But good for Caetano. Too bad for everyone else.

          • Gun Fu Guru

            That such a slam dunk case was dodged to the maxim possible extent (short of allowing a conviction) by SCOTUS hardly contradicts my opinion.”
            You said they didn’t rule on the Second Amendment since MacDonald.
            I said they did.
            You said it was insignificant.
            I say that you didn’t discuss significance until you were told you were wrong.
            You say _____?

          • gunsandrockets

            I originally corrected your incorrect description of the state of play when it comes to decisions by the Supreme Court regarding the 2nd Amendment.

            And the Supreme Court hasn’t made any difference to 2nd Amendment rights since the 2010 McDonald case, despite numerous opportunities to do so. That is what I meant when I said the Supreme Court has been mute, and it is what I still mean.

            But if sophistry or the having the last word is what floats your boat, have at it.

          • Gun Fu Guru

            Sophistry would be you walking back on your original statement rather than simply saying “I was wrong.” SCOTUS has decided on the Second Amendment since 2010, just not in a substantive way.

  • datimes

    The Court strikes down the new gun control laws, and the politicians just rewrite the old unconstitutional ones, imposing them on the citizens until they are stricken. An endless cycle until the utopians win.

    • J Smith

      I don’t know about that. I’ve lived in two total hand gun ban jurisdictions that no longer are

      • datimes

        Come back in 15-30 years and let me know how that worked out.

        • J Smith

          All the long term trends are against gun control.

    • Marcus D.

      IF (and it is a big IF) the decision stands and the injunction issues, D.C. will be forced to issue licenses on a “shall issue” basis. The decision is that clear. All the city can do then is impose onerous licensing requirements, such as massive amounts of training, high fees, and insurance requirements, any of which will bring a new round of litigation. If I was a betting man, which I am not, I would bet that the issuance of a permanent injunction will be stayed pending further proceedings in the Court of Appeal and the Supreme Court. And that will take at least a couple more years.

      • datimes

        All I can say is ‘Chicago’.

      • datimes

        7/28/17 “As we consider seeking review of today’s 2-1 decision before the entire D.C. Circuit, the ‘good reason’ requirement remains in effect,” he continued. “The Office of Attorney General is committed to working with the Mayor and Council to continue fighting for common-sense gun rules.” THE AG SAYS HE’S GOING TO IGNORE THE RULING.

        • Marcus D.

          Slow down there, Hoss, the ruling does not go into effect until an actual order is actually issued, which I seem to recall is 30 days, thus allowing the losing party time to seek review. But this does tell us that this case is nowhere near over.

          • datimes

            If you think DC will sheepishly obey a Supreme Court decision that they find objectionable you are nuts. These are Lefties and they don’t take defeat sitting down. The weenie Right caves and obeys but not their adversaries. Look at Chicago, NY, CA. Give me a break.

  • PersonCommenting

    30 days to appeal though. They will hold it up some how. Surprised yall are reporting on this honestly.

  • Armchair Command’oh

    Here’s the unfortunate reality: the D.C. Circuit will almost certainly hear this case en banc. That means this new decision, which was made by a standard three-judge panel, will be set aside and the whole court will hear argument and vote on the issue. Given that the D.C. Circuit is the most left-leaning court, arguably even worse than the 9th, there is simply no way they will not uphold the city’s “good reason” restrictions, just like the 2nd, 3rd, 4th, and 9th Circuits (the same en banc reversal happened in the 9th with Peruta). The DC Court’s active members are 7 democrat-appointed vs 3 appointed by W. The only other republican appointee is Judge Henderson, who wrote the dissent in this case (as well as the dissent in Heller), so it’s probably going to be 8 to 4 in the city’s favor.

    As for the Supreme Court, it has declined to hear every one of the prior “good reason” cases, so I’m not optimistic. Honestly, this is probably a good thing for us. Heller was strange in that it did not provide a standard of review for 2nd Amendment cases. There’s been speculation that the reason is because Kennedy was not a strong yes—he would strike down an outright ban but not much more. The Court’s failure to take another case (by convention, 4 justices have to agree to take a case) may reflect the four conservatives’ fear that Kennedy would rule against a right to carry. If that’s true, we don’t want them taking another case and making bad law. What we need is for Kennedy or one of the liberal judges to retire, and then bring a new 2nd Amendment challenge.

    • J Smith

      EXACTLY. Once the November election results were known all possible delaying maneuvers should have been put in place slowing the advance of this case. this is liable to be the case that formally supports may issue and will a) kill all hope in may issue, and b) embolden Democrat and future democrat “Shall issue” to go to may issue.

  • Tim

    “One of the ruling judges wrote in her dissent that *she* is “certain the core Second Amendment right does not….”

    Shocking, I know.

  • Markius Fox

    “…the First, Fourth, and Fifth Amendments don’t stop at your door, so why would the Second?”

    “Because, the children!!! Think of the CHILDREN!”
    – The dissenting justice, probably.

  • 🦑 🐙

    The Second Amendment literally says to “keep and BEAR” arms. It is completely dishonest to say that the Second Amendment doesn’t protect the right to carry a gun, when that is exactly the definition of “bear”. The whole problem with liberally interpreting the Bill of Rights is that doing so is nothing more than replacing it with your own ideals.

    • Marcus D.

      Anti-gun justices can be devious in asserting their biases. Just read the Peruta opinion to see what I mean. The issue that was presented to the original panel was whether the Second guaranteed a right to carry in some manner–which was broader than the issue in the trial court because between the trial court decision and the briefing on appeal, California banned “open unloaded” carry, leaving “may issue” concealed carry as the only way to legally carry in any incorporated city or town outside the home. the first panel understood this, and recognizing that the effect of may issue was to prevent the vast majority of Californians from carrying outside the home, held that good cause=a desire to provide for one’s self defense. but in an amazing reversal in the en ban opinion, the panel went back to the original complaint, ignored the change in California law, refused to consider whether there was a right to openly carry outside the home in urban areas notwithstanding the ban, and concluded that there was no 2A right to a concealed carry permit. The same broad issue–whether there was a right to bear arms outside the home in some manner–was presented to the Supreme court, which declined to review the case. So as it stands right now, there is a mostly theoretical/arguable right to openly bear arms outside the home, since one has no right to carry concealed, but the ban remains in effect. Given its historic antipathy to the right, one must assume that the Ninth will find some way to say that even if there is a right to bear arms outside the home, such a right is not at the core of the Second Amendment, intermediate scrutiny applies, and that therefore the government may ban such practices in the interest of public safety–just as the courts in the 2d, 3d and 4th circuits have ruled.

      Now let’s talk about Wrenn. I suspect that the city will seek en banc review, that it will be granted, and that the majority will reverse the panel decision, concluding that the State may ban the exercise of the right outside the home in the particular circumstances of crowded cities. Will the Supreme Court accept review? Sell, we know for certain that four of the justices, although agreeing that there is an individual right, conclude that the right was intended to be exercised in connection with militia service and not otherwise. At least two strongly support the right, two probably do but are hedging their bets, and one is uncertain, his favorable votes in Heller and McDonald “purchased” with assurances in the majority opinions that the right was subject to governmental restriction. It is hard to conceive of him as a sure vote when it comes to allowing all citizens the right to carry firearms in public.

  • Ark

    I expect SCOTUS to decline to hear the case, just like with the recent challenge to California’s may-issue practices. They seem to be fine with leaving this up to the regional appeals courts.

  • It seems quite a bit more likely that SCOTUS will deny cert. for this and kick it back down for further review, which is honestly the best thing for it unless/until there’s another Trumpointee on the Big Bench. This is too important a right to risk on a maybe-maybe-not Court.

  • SerArthurDayne

    SHALL NOT BE INFRINGED.

    BTW, the third line in the dictionary definition of “militia” is : all able-bodied civilians eligible by law for military service.

    So yeah. We can keep and bear arms and screw em if they don’t like it.

  • S. Plankenberg

    Still wouldn’t want to get caught carrying in DC.
    They may just decide to hold you in jail until the SC MAYBE rules in your favor.

  • Riddick

    We got ourselves a self-proclaimed legal troll in the forum, folks..

    “Gun Fu Guru”.