The Second Amendment has won (again) in Washington. So why won't the Supreme Court fully enforce it?

Washington, D.C. residents, you don’t have to holster your Second Amendment rights anymore.  Unfortunately, residents of many other states like California don’t have the same ability that D.C. residents now do to protect themselves.

In a stirring victory for those who live in the national’s capital, a panel of the District of Columbia Circuit Court of Appeals recently threw out a D.C. ordinance that denied concealed-carry permits to anyone who could not show a “special” need for self-defense, what is referred to as a “good reason” requirement.  The problem is that other courts of appeal have upheld such restrictive laws and the U.S. Supreme Court has turned down appeals of those decisions, refusing to take up the issue of the Second Amendment’s application to carrying a weapon outside of the home.

This happened most recently at the very end of the Supreme Court’s 2017 term in June when it refused to take up Peruta v. California, an appeal of a decision of the Ninth Circuit upholding California’s good reason requirement. 

In a scathing dissent, Justice Clarence Thomas (joined by Neil Gorsuch) castigated the other justices for treating the Second Amendment “as a disfavored right.”  He said it was long-past time for the Court to decide this issue and that he found it “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

In the opinion over the District of Columbia’s concealed carry law written by Judge Thomas Griffith of the D.C. Circuit, Griffith pointed out that the U.S. Supreme Court’s first “in-depth examination of the Second Amendment” occurred in 2008 in District of Columbia v. Heller, where the Court threw out D.C.’s complete ban on handguns as unconstitutional.

That decision is “younger than the first iPhone.” The Supreme Court did not outline how the Second Amendment applies to the carrying of a weapon in public, but as Griffith says, Heller reveals “the Second Amendment erects some absolute barriers than no gun law may breach.”

After Heller, D.C. implemented a complete ban on concealed carry. That was struck down in 2014 in Palmer v. District of Columbia. D.C. responded by restricting concealed-carry permits only to those who could show a “good reason to fear injury.” That required showing a “special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks.”

Living in a high-crime neighborhood wasn’t a good enough reason for a concealed-carry permit under D.C.’s regulation. In essence, you had to prove you had a good reason to exercise your constitutional right, a bizarre situation unique in American constitutional jurisprudence.

D.C. argued, absurdly enough, that its ordinance did not violate any constitutional right because the Second Amendment doesn’t apply outside of the home.

Judge Griffith dismissed this claim, saying that the “fact that the need for self-defense is most pressing in the home doesn’t mean that self-defense at home is the only right at the [Second] Amendment’s core.”

Obviously, the need for self-defense “might arise beyond as well as within the home.” Further, the Second Amendment’s “text protects the right to ‘bear’ as well as ‘keep’ arms.” Thus, it is natural that the core of the Second Amendment includes “a law-abiding citizen’s right to carry common firearms for self-defense beyond the home.”

Even under Heller, governments can apply regulations on the possession and carrying of firearms that are “longstanding,” such as bans on possession by felons “or bans on carrying near sensitive sites” such as government buildings. But preventing carrying in public is not a “longstanding” tradition or rule.

This opinion goes into detail discussing the long American and English history applicable to weapons and self-defense, going back as far as the Statute of Northampton of 1328 -- whose text, as the court says, will “remind Anglophiles of studying Canterbury Tales – in the original.” But the state of the law “in Chaucer’s England – or for that matter Shakespeare’s or Cromwell’s – is not decisive here.”

What is decisive is that the Supreme Court established in Heller that “by the time of the Founding, the ‘preexisting right’ enshrined by the Amendment had ripened to include carrying more broadly than the District contends based on its reading of the 14th-century statute.” According to Griffith, “the individual right to carry common firearms beyond the home for self-defense – even in densely populated areas, even for those lacking special self-defense needs – falls within the core of the Second Amendment’s protections.”

Unfortunately, other federal courts of appeals have upheld similar “good reason” laws for concealed carry permits. But as Judge Griffith points out, those courts “dispensed with the historic digging that would have exposed” that their toleration of regulations restricting the carrying of a weapon is “faulty.”

The constitutional analysis that should be applied to all government gun regulations is that they must allow “gun access at least for each typical member” of the American public. Because D.C.’s restrictive “good reason” concealed-carry law “bars most people from exercising” their Second Amendment right “at all,” it is unconstitutional. At a minimum, the Second Amendment “must protect carrying given the risks and needs typical of law-abiding citizens.”

The court drew together “all the pieces” of its analysis in this way:

At the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense. In fact, the Amendment’s core at a minimum shields the typically situated citizen’s ability to carry common arms generally. The District’s good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That’s enough to sink this law under Heller I.

One of the judges on the D.C. panel, Karen LeCraft Henderson, dissented, arguing that the “core” right in the Second Amendment is only to possess a firearm in one’s home and she saw no problem with D.C.’s good-reason requirement.

That dissent, along with the contrary decisions of other appeals courts, shows why the Supreme Court needs to follow Justice Thomas’s admonition and finally settle this issue.  As Thomas scolds in his dissent in Peruta:

For those of us who work in marble halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous.  But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense.  I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and former Justice Department official. He is coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.