Deja vu: Appeals court "flunks" DC gun-control law

Give Washington DC this much credit. Its gun-control efforts lead the nation in allowing federal appellate courts to set precedents in favor of Second Amendment rights. It follows a long line of firearm restrictions that have gotten an “F” in constitutional law from the DC Circuit, and also from the Supreme Court:

A federal appeals court on Tuesday blocked the District from enforcing strict limits the city has in place on carrying concealed firearms on the streets of the nation’s capital.

In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit said the District’s system that requires a “good reason” to obtain a permit is so restrictive that it is essentially an outright ban in violation of the Second Amendment.

“The 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,” wrote Judge Thomas B. Griffith, who was joined by Judge Stephen F. Williams.

“Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test.”

The argument for the law in this case hinged at least in part on the grounds that the nation’s capital has unique security challenges that require enhanced restrictions. That argument carried enough weight with Judge Karen LeCraft Henderson to push her into a lone dissent in the Wrenn v DC decision, but not with the other judges. Instead, the majority opinion reminds DC that it lost in Heller with its total ban on ownership and carry, and demanding a “good reason” subject to the whims of bureaucrats amounts to pretty much the same thing:

This analysis reflects the most sensible way of spelling out Second Amendment rights absent contrary clues in the Amendment’s history as understood by Heller I: if the Amendment is for law-abiding citizens as a rule, then it must secure gun access at least for each typical member of that class. Indeed, this reading fits naturally with Heller I’s holding about the meaning of “arms”: just as the Amendment requires access to weapons “in common use,” id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)), including the “most popular” self-defense weapon among citizens today, id. at 629, so must the Amendment enable defense under the circumstances common among citizens today. The reason for both points is the same: the early cases cited in Heller I envisioned that law-abiding citizens as a general rule would be entitled to have and carry arms for self-defense. So the class of arms protected must include guns in common use; and the class of citizens who can wield them must include those with common levels of competence and responsibility—and need.

Longstanding regulations aside, then, the Amendment shields at least the ability to carry common arms in self-defense for citizens who are commonly situated in the ways just mentioned. Yet the District’s good-reason law bars most people from exercising this right at all. To be sure, the good-reason law leaves each D.C. resident some remote chance of one day carrying in self-defense, but that isn’t the question. The Second Amendment doesn’t secure a right to have some chance at self-defense. Again, at a minimum the Amendment’s core must protect carrying given the risks and needs typical of law-abiding citizens. That is a right that most D.C. residents can never exercise, by the law’s very design. In this way, the District’s regulation completely prohibits most residents from exercising the constitutional right to bear arms as viewed in the light cast by history and Heller I.

And under Heller I, “complete prohibition[s]” of Second Amendment rights are always invalid. Id. at 629. It’s appropriate to strike down such “total ban[s]” without bothering to apply tiers of scrutiny because no such analysis could ever sanction obliterations of an enumerated constitutional right. Id. With this categorical approach to such bans, Heller I ensured that judicial tests for implementing gun rights would not be misused to swallow those rights whole. Heller I essentially held that the right to keep and bear arms must mean at an absolute minimum the right to own a gun, so any acceptable standard of review would have to accommodate that fact. By declining to apply tiers of scrutiny to a total ban on ownership, Heller I closed off the possibility that courts would erroneously find some benefits weighty enough to justify other effective bans on the right to keep common arms. We would flout this lesson of Heller I if we proceeded as if some benefits could justify laws that necessarily destroy the ordinarily situated citizen’s right to bear common arms—a right also guaranteed by the Amendment, on the most natural reading of Heller I.

DC had argued that its law wasn’t a ban at all, but again the court disagreed. The good-reason law starts off as a total ban, to which the city might allow exceptions based on their arbitrary reasoning:

[T]he good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary selfdefense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen. We say “necessarily” because the law destroys the ordinarily situated citizen’s right to bear arms not as a side effect of applying other, reasonable regulations (like those upheld in Heller II and Heller III), but by design: it looks precisely for needs “distinguishable” from those of the community. So we needn’t pause to apply tiers of scrutiny, as if strong enough showings of public benefits could save this destruction of so many commonly situated D.C. residents’ constitutional right to bear common arms for self-defense in any fashion at all. Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test that was appropriately written and applied, so we strike down the District’s law here apart from any particular balancing test.

Indeed, as noted, it seems highly doubtful that the Heller I Court would have acted any differently in reviewing a goodreason regulation on possession—one limiting gun ownership to that minority of residents with more-than-common needs for self-defense at home. Yet possession and carrying—keeping and bearing—are on equal footing. So Heller I’s language and logic all but dictate that no tiers-of-scrutiny analysis could deliver the good-reason law a clean bill of constitutional health.

There is another point to be made here about DC’s attempt to declare itself a special case. If that passed muster, then every jurisdiction could do the same in restricting an enumerated constitutional right for their perception of “public safety.” What about protests and peaceful assemblies? Does DC have a special case to make in banning that as well, given its security concerns? How about Berkeley, California? Do they have a special case to make for content-based speech restrictions because of their track record of violence? That’s as slippery a slope as one could create.

As Judge Griffith notes in his majority opinion, this is the third major effort by Washington DC to ban firearms for most of its citizens. No doubt there will be a fourth, a fifth, and an eleventy-seventh major attempt to follow, but the more they try, the more courts have established enduring precedents to confound the gun-grabbers.

Of course, the city can appeal this decision to the Supreme Court. It seems unlikely to get cert, however, as the justices have avoided dealing with this issue unless there is a split in the circuits, and that doesn’t appear to be the case. Alternately they can appeal for an en banc review, but even if that worked for DC,  the four Supreme Court conservatives would almost certainly grant cert, and it will be difficult to rule in favor of DC in light of Heller for all the reasons Judge Griffith lays out. Plus, it would set an even more secure precedent against “good reason” laws everywhere else in the country. That could be a literal win-win for the Second Amendment.