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Federal Judge Strikes Down Heart Of D.C.'s New Concealed Carry Law

FILE - In this Jan. 16, 2013 file photo, an assortment of firearms are seen for sale at Capitol City Arms Supply in Springfield, Ill. D.C. residents and non-residents alike can apply for concealed carry permits, but they have to prove they face a personal threat. On Monday, a federal judge tossed out that requirement. 
(AP Photo/Seth Perlman, File)
FILE - In this Jan. 16, 2013 file photo, an assortment of firearms are seen for sale at Capitol City Arms Supply in Springfield, Ill. D.C. residents and non-residents alike can apply for concealed carry permits, but they have to prove they face a personal threat. On Monday, a federal judge tossed out that requirement. 

A federal judge on Monday struck down a provision of the District's new law governing who can carry a concealed handgun in the city, ruling that requiring applicants to prove they need a gun to defend themselves is a violation of the Second Amendment.

In a 23-page decision, Judge Frederick Scullin took aim at the provision of the law requiring all applicants to prove they face "good reason to fear injury to his or her person or property," saying that it goes far beyond other permissible restrictions on gun ownership and possession.

"The District of Columbia's arbitrary 'good reason'/'proper reason' requirement, however, goes far beyond establishing... reasonable restrictions," he wrote in his ruling.

"Rather, for all intents and purposes, this requirement makes it impossible for the overwhelming majority of law-abiding citizens to obtain licenses to carry handguns in public for self-defense, thereby depriving them of their Second Amendment right to bear arms," he wrote.

A legal fight over a new law

The concealed carry law was passed by the D.C. Council in late 2014 after another ruling — also by Scullin — overturned the city's long-standing ban on carrying handguns outside the home.

The law established a strict "may-issue" system that restricted not only who could get a concealed carry permit, but where they could carry their guns once they got the permits.

The law says that applicants have to prove to police officials that they face "serious threats of death or serious bodily harm, any attacks on his or her person, or any theft of property from his or her person" to qualify for a permit. Additionally, "the person shall also allege that the threats are of a nature that the legal possession of a pistol is necessary as a reasonable precaution against the apprehended danger."

City officials argued at the time that D.C.'s role as the nation's capital should afford it additional restrictions on who can carry a concealed weapon, and said that they were following the lead of states like Maryland and New Jersey in requiring that applicants prove they face a specific threat before they could receive a permit.

But in February two D.C. residents and one Florida resident sued, claiming that they could not meet the standard set by the D.C. law and were thus being forbidden from exercising their Second Amendment rights. They were represented by Alan Gura, the pro-gun attorney who filed suit against the city for its concealed carry ban and also argued the 2008 Supreme Court case which ended the city's 30-year ban on all handgun ownership.

Brian Wrenn, one of the plaintiffs, says that he feels the city was improperly infringing on his Second Amendment rights.

"The District was imposing a burden upon me to demonstrate an immediate threat to my safety or my life to be able to have a concealed permit. My thought is that I shouldn't have to demonstrate something to exercise my rights. It's the authorities' burden to demonstrate why I'm not fit to exercise those rights. I thought the application process had it backwards," he says.

In Monday's ruling, Scullin largely agreed with Wrenn and the other plaintiffs, writing that the D.C. law made it impossible for some residents to carry handguns. Additionally, he said that city officials had not proven that keeping handguns to only those who could prove they faced a personal threat would advance a broader public interest.

"Simply put, the District of Columbia's 'good reason'/'proper reason' requirement will neither make it less likely that those who meet this requirement will present a risk to other members of the public or commit violent crimes than those who cannot meet this requirement," he wrote.

Scullin did not touch the other provisions of the law, which include strict limitations on where concealed guns can be carried. Under the city's law, the holder of a concealed handgun cannot enter government buildings, schools, libraries, most bars and restaurants, or use public transportation. They also have to stay 1,000 feet away from any U.S. or foreign dignitary.

"This conclusion should not be read to suggest that it would be inappropriate for the District of Columbia to enact a licensing mechanism that includes appropriate time, place and manner restrictions on the carrying of handguns in public," wrote Scullin.

But he has prohibited city officials from enforcing the "good reason" provision, meaning that unless a stay is granted, D.C. residents and visitors who meet the other provisions of the law — including 18 hours of training, and proof that they have not suffered a mental illness within the last five years — could soon more easily get concealed carry permits.

According to Gwendolyn Crump, a spokeswoman for the Metropolitan Police Department, through early May 107 concealed carry applications have been received, 52 from D.C. residents, 55 from non-residents. Twenty-six have been approved, 42 denied, six cancelled, and 33 are still pending.

Next steps

In a statement to WAMU 88.5, D.C. Attorney General Karl Racine says he is reviewing the ruling. But, he adds, "we believe that the law passed by the Council is constitutionally valid."

Gun control advocates say that may-issue permitting schemes in other states have survived legal challenges — including a law in Maryland very similar to D.C.'s — but even they concede that D.C.'s "good reason" provision may have been too broadly written to pass constitutional muster.

"Trying to define it by the external need instead of the risk of the person carrying the gun is not going to stand a court review. You have to look at the risk of the person applying for the permit, and the decision has to be based on that risk. It can't be based on externalities, it has to be based on the person applying," says Josh Horowitz, executive director of the Coalition to Stop Gun Violence.

Still, Horowitz says he's optimistic that D.C. can retain a may-issue permitting scheme, and says that the city scored a partial victory when Scullin chose to uphold the restrictions on where carriers of concealed handguns can go.

"This is in many ways a victory for the District, because they are trying to say, 'Look, there are certain zones where we can't have carry, and others where we can,'" he says.

But for Joshua Akery, one of the D.C. residents who filed the lawsuit that led to Scullin's ruling, the decision is just another in a long line of legal losses for the city over its restrictive gun laws.

"This is a big civil rights victory for D.C. residents," he says. "D.C. officials will delay justice as long as possible, but they can’t violate our rights indefinitely. There are only so many courts. Eventually D.C. will run out of places to lose. City officials may not have to protect us, but they can’t stop us from protecting ourselves."

Wrenn Opinion Prelim Injunction


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