In a 2-1 decision, a panel for the United States Court of Appeals for the District Circuit ruled that Washington, D.C.'s de facto ban on concealed handguns is unconstitutional.The District of Columbia was the last jurisdiction in the United States to legalize concealed carry. Last year, the city was forced to craft legislation governing concealed carry after a federal judge ruled that D.C.'s complete ban was unconstitutional. In 2008, the Supreme Court ruled in District of Columbia v. Heller that not only do Americans have the right to own hand guns, but when the Founders wrote the phrase "bear arms" into the Second Amendment, they were protecting a right to carry weapons. As such, Washington, D.C.'s complete ban on concealed carry was ultimately ruled unconstitutional. City lawmakers went to the drawing boards and devised a system that permitted concealed carry inside the nation's capital, but made it impossible for average Americans to be approved for the permit. They accomplished this by adding a "good reason" provision to their concealed carry statute. If residents wanted the ability to carry a concealed weapon in D.C., they would have to convince the police captain and/or a judge that they had a "good reason" to carry. Other states have similar measures. In New Jersey, the standard is known as "justifiable need." In Maryland, applicants need to prove they have a "good and substantial reason" to need to exercise their right to bear arms. While the terminology differs from state to state, they serve as de facto bans on concealed carry.
Writing for the panel, Circuit Judge Thomas B. Griffith declared 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 -- went even further, declaring that the Second Amendment guarantees an individual right to "carry firearms beyond the home for self-defense." So far, other Federal Appeals Courts have been reluctant to rule on the Second Amendment application outside of the home. In the wake of this ruling, D.C. Attorney General Karl A. Racine reiterated his commitment to "fighting for common-sense gun rules" and said that his office would weigh their appeal options. Supporters of D.C.'s strict carry laws argue that the city has unique security concerns that make concealed handguns problematic. City officials will now have 30 days to decide how to proceed. They can either accept the Court's ruling and make the necessary adjustments to their concealed carry statute or choose to appeal it either to the full Circuit Court or to the Supreme Court. Earlier this year, the Supreme Court refused to hear a similar challenge coming out of California. The Peruta case challenged California's state ban on open carry and similarly-crafted de facto ban on concealed carry. The Court may have rejected that appeal because the conservative wing of the Supreme Court (Thomas, Roberts, Alito, and Gorsuch) was uncertain how Justice Anthony Kennedy would vote and unwilling to risk hearing the case given the fact that Kennedy's retirement is near.
If Kennedy retires, President Donald Trump will most likely nominate Judge Thomas Hardiman, the runner-up in this year's search to replace the late Justice Kennedy. When the constitutionality of New Jersey's de facto concealed carry was challenged in 2014, Hardiman wrote in his dissent 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 added to the Supreme Court, Judge Hardiman would likely be the deciding vote on concealed carry.