On Thursday evening, the Court of Appeals for the D.C. Circuit issued a stunning announcement: The judges would not intervene to save Washington, D.C.’s restrictive concealed carry law.
Washington, D.C., has what is known as a "may-issue" concealed carry ordinance. What that means is that even if you are law-abiding, of sound mind, and pass all the tests, Washington, D.C., still only “may” decide to issue you a permit to carry a firearm in public. While that may seem normal, the vast majority of states have adopted shall-issue schemes, where anyone who meets the basic requirements is approved. A growing number of states have even adopted permit-less or “constitutional carry” laws. That means that if someone can legally own a handgun, then they can legally carry it -- with or without an additional permit. In D.C., this added requirement was called the “good reason” provision. In order for an applicant to be granted a permit, they had to prove to the D.C. police chief that they had a “good reason” to need to carry a firearm in public. Other restrictive states have similar provisions. In California, it is called “good cause;” in New Jersey, it’s “justifiable need;” and Maryland requires applicants to prove they have a “good and substantial reason” to need a concealed carry permit. When a three-judge panel ruled on this “good reason” provision back in July, they voted 2-1 that the D.C. ordinance was unconstitutional. Circuit Judge Thomas B. Griffith wrote in the court's opinion that Washington, D.C.'s “good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs.” “Bans on the ability of most citizens to exercise an enumerated right,” he continues, “would have to flunk any judicial test.” Judge Griffith — a George W. Bush nominee — then went even further, declaring that the Second Amendment guarantees an individual right to “carry firearms beyond the home for self-defense.” At the time, D.C. Attorney General Karl A. Racine reiterated his commitment to “fighting for common-sense gun rules” and promised to appeal to the full D.C. Circuit Court of Appeals for what is known as an en banc hearing. An en banc hearing is when the entire Circuit Court weighs in on a decision reached by three of its judges and is usually only ever granted if the majority of the court’s judges want it overturned.
On Thursday, the full D.C. Circuit formally refused to grant the District of Columbia an en banc hearing, meaning that the panel’s decision is now left in place. Washington, D.C.’s “good reason” concealed carry statute is unconstitutional. Attorney General Racine and the District of Columbia City Council now have two choices: they can either obey the Appeals Court’s decision and repeal their concealed carry statute, or they can appeal to the Supreme Court.
Earlier this year, the Supreme Court rejected a similar challenge to California’s concealed carry permit restrictions. The Peruta case challenged California’s state ban on open carry and similarly-crafted de facto ban on concealed carry.
Many believe that the Court may have rejected that appeal because the conservative justices on the Supreme Court -- Thomas, Roberts, Alito, and Gorsuch -- were uncertain of how Justice Anthony Kennedy would vote. With Kennedy’s retirement near, they may have opted to wait until President Trump gets the opportunity to nominate a successor.
If Justice Kennedy does retire -- which he is currently warning to those who apply to become his law clerks -- then President Donald Trump will most likely nominate Judge Thomas Hardiman to fill the seat. Hardiman was the runner-up during this year’s search to replace the late Justice Antonin Scalia, so it would make sense for him to get the nod to fill the next vacancy.
When the constitutionality of New Jersey’s de facto concealed carry ban was challenged in 2014, Hardiman wrote a blistering dissent, declaring that “interpreting the Second Amendment to extend outside the home is merely a common-sense application of the legal principle established [by the Supreme Court]” because “the need for self-defense naturally exists both outside and inside the home.” If he replaces Kennedy, then there is no doubt that he would issue similar decisions from the country’s highest court.
For now, Washington, D.C., needs to go back to the drawing board and replace its unconstitutional gun control laws. The only questions left are whether the District of Columbia will appeal to the Supreme Court, and if so, whether Anthony Kennedy will retire before the case is heard.
