In a surprising decision, a federal judge overturned Washington, D.C.’s open and concealed carry ban this past weekend. While the ruling has received some fanfare, few reports have paid attention to the section in the order that invalidated D.C.’s firearms residency requirements. Just lifting the ban would have affected the approximately 630,000 residents living within the District of Columbia, but the judge went a step further with his little noticed residency decree.
Legal experts say this is the first time a judge has ruled on—or even been presented with in this manner—the hot-button firearms issues of residency and reciprocity. The judge determined that non-residents cannot be barred from carrying handguns in D.C. simply because they do not live there. This establishes an uncharted precedent that has the potential to affect gun laws across the country. In the interim, it has already made huge waves inside our nation’s capital.
The immediate implications are significant, according to John Lott, a preeminent gun law expert and president of the Crime Prevention Research Center. “We have a big experiment now, where people who come into work in D.C. are going to be able to carry….In fact, even more people can carry now in D.C. than can carry in Virginia or Maryland. In Maryland, it’s very difficult to get a permit, but I can go and lock my gun in my trunk in Maryland, drive into work in D.C., and as soon as I cross the border, take the gun out and put it in my pocket.”
In light of the judgment in Palmer v. District of Columbia, D.C. police chief Cathy Lanier issued a memorandum Sunday that in effect makes the District of Columbia a “constitutional carry” entity—meaning that anyone who legally possesses a handgun can carry it, openly or concealed, within D.C.’s boundaries. This puts the District in the company of a handful of states that do not require carry permits, including Alaska, Arizona, Arkansas, Vermont, Wyoming (which still requires permits for non-residents), and 99.4 percent of Montana.
This is somewhat amusing, considering D.C. has some of the strictest gun laws in the country—a complete “assault weapons” ban, a 10-round magazine capacity limit, a 10-day waiting period, a limit of one firearm registration every 30 days, and a limited list of approved firearms. If an individual does not own a registered gun, the penalty for simply possessing ammunition is up to a $1,000 fine and/or up to one year in prison. D.C. also happens to be the only entity in the whole country that requires the registration of all handguns and long guns—not to mention that D.C. only allowed gun ownership after the Supreme Court mandated it in the 2008 Heller case.
In a strongly worded opinion, senior U.S. District Court Judge Frederick Scullin, Jr., citing the Supreme Court’s landmark Heller and McDonald cases, the Seventh Circuit’s Moore case, and the Ninth Circuit’s Peruta case, reaffirmed that the right to bear arms is an individual right extending outside the home. Therefore, the complete carry ban in Washington, D.C. is unconstitutional:
Scullin didn’t stop there though. One of the plaintiffs in this case, Edward Raymond, was not a D.C. resident, and this afforded a court the opportunity to comment on residency requirements for those who wish to carry handguns:
Lanier’s directive explains the practical effects of Scullin’s orders, providing guidance to MPD officers with different scenarios. For a Vermont resident with no criminal record, for example, the officer should just “record any relevant information for potential further investigation,” and the individual is “free to leave.”
Ironically, the burden is higher on D.C. residents, with gun registration requirements and $173 in fees still applicable if residents wish to carry handguns. Meanwhile, non-residents “shall not be charged with either unregistered firearm or unregistered ammunition.” Since Heller, a little over 3,000 guns have been registered in a city of about 630,000 residents, according to the Washington Times.
Late Monday, the city’s attorney general requested a stay in the Palmer injunction pending an appeal, or for 180 days to craft new legislation, so it’s unclear how long one will be able to carry a handgun in Washington.
If Scullin fails to grant the stay, the defendants can turn to the D.C. Circuit Court of Appeals. The appeals court, the second most powerful after the Supreme Court, would also hear a potential appeal. The circuit court welcomed three liberal judges in December and January courtesy of Harry Reid’s “nuclear option” eliminating filibusters for judicial nominees.
If the appeals court overturns the ruling, the plaintiffs can try to appeal to the Supreme Court. If this happens, the Palmer case, which had languished for five years without a decision at the district level, could drag on for several more years.
Gun rights advocates are pleased with the decision, but urge caution in jumping the gun, so to speak. A spokesperson for the NRA noted that while this was a positive development, there is still plenty of work ahead with upcoming appeals and challenges.
Dave Workman, communications director with the Second Amendment Foundation, a plaintiff in Palmer, labeled the progress as “baby steps,” indicating the door to national reciprocity was opened “maybe a crack or six inches.”
“We’ll see if we can blow it off its hinges,” Workman said.
National reciprocity would allow all states to recognize each other’s carry permits (or carry laws, for the constitutional carry states that don’t require permits). Currently, states decide whether they will have formal reciprocity with another state, or they have an informal recognition, or one state accepts permits from another state, even if the second state doesn’t accept the first state’s permits. One state denying reciprocity with another state—thus preventing a non-resident from carrying a handgun in a state—goes against the spirit of Scullin’s orders for D.C.
Each of the recent cases are seen as building blocks by gun rights advocates. The Supreme Court affirmed the right to keep a gun in the home for self-defense in the District of Columbia in Heller.
Then in the 2010 McDonald ruling, the Court established that the Second Amendment extends to all states via the due process clause in the Fourteenth Amendment. The Fourteenth Amendment’s due process and equal protection clauses have also been cited as justification for overturning gay marriage bans. (Incidentally, Tom Palmer, of Palmer v. District of Columbia, who is gay, “fended off a hate crime using a firearm he happened to have on him”).
Two years after McDonald, a panel of three Seventh Circuit judges ruled Illinois’ concealed carry weapons ban unconstitutional in Moore, and the Illinois legislature wrote regulations for “shall issue” concealed carry weapons permits, preempting an appeal to the Supreme Court.
This past February, a three-judge panel of the Ninth Circuit struck down San Diego County’s very restrictive “may issue” concealed carry permit process in Peruta. The judges found that in combination with California’s open carry ban, “typical” citizens could not bear arms in public as they had to show subjective “good cause” for needing a permit. The Ninth Circuit also made a lower court revisit a ruling in Hawaii over its similar “may issue” laws. Even though the actual defendant in Peruta, the San Diego County sheriff, declined to appeal, California’s attorney general is attempting to get the decision reversed with an en banc hearing of the larger Circuit. The order has been stayed in the meantime.
Peruta is seen as the most likely case to reach the Supreme Court the soonest. From a strategic standpoint, both Peruta and Palmer are good cases to bring to the Supreme Court, as they deal with complete or nearly complete carry bans, according to Lott. Peruta and Palmer both have the potential for a Supreme Court decision regarding the right to bear arms outside the home, which the Supreme Court has yet to address directly. Palmer could pave the way for national reciprocity, if higher courts decide to comment on Scullin’s residency mandates in the future.
In the present, however short-lived D.C.’s constitutional carry status is, Lott forecasts one small victory that won’t be overturned:
Lott, whose research reveals that crime rates in constitutional carry states are lower than in other states, says, “The usefulness there is that people are going to be able to see that the fears that they had were not justified.” A tiny but compelling baby step, indeed.
Update: Judge Scullin issued a 90-day stay Tuesday afternoon in order for the D.C. Council to enact new carry laws. The District of Columbia may also chose to appeal the ruling to the D.C. Circuit Court. Washington’s attorney general had sought either a stay pending appeal or a 180-day stay for Council action on legislation.
