District asks for more time as it ponders ruling throwing out handgun carry ban

August 18, 2014

The Second Amendment does not include an “unalloyed right” to carry guns in public, District officials argued in a court pleading filed Monday that seeks more time before a judge’s ruling takes effect and overturns the city’s ban on carrying handguns in public.

In the filing, the D.C. attorney general’s office for the first time hinted at arguments that it might make should authorities decide to fight in court. A key point: The court has upheld the government’s right to ban guns from “sensitive places” such as schools, post offices and libraries — and most of the District’s downtown could be defined as a “sensitive place.”

The filing also counters U.S. District Judge Frederick J. Scullin Jr.’s ruling by arguing that the “core” of the Second Amendment is “the right of law abiding, responsible citizens to use arms in defense of hearth and home . . . not the right to carry handguns in public.”

When he overturned the handgun ban last month, Scullin granted a 90-day stay, which expires Oct. 22, for the D.C. Council to decide whether to enact new legislation “consistent with the court’s ruling.”

The purpose of Monday’s pleading was to ask for an extension of that stay for two possible scenarios. In the event the District decides to appeal instead of enact a new law, officials want a new stay to extend until the appeal process is exhausted. In the event they seek a legislative remedy, they are asking for the current stay to extend an additional 90 days.

Alan Gura, the lead attorney for the plaintiffs, was not immediately available for comment. He has argued against a stay longer than 90 days, writing in an earlier court document that citizens are being denied constitutional rights and that “any stay for the sole purpose of accommodating the legislative process must therefore be brief.”

Scullin told the District that he would consider arguments in August about extending the stay, but he wrote that “the court is not convinced that defendants will be able to demonstrate a likelihood of success on the merits.”

The judge’s decision last month took the District by surprise. The 2009 lawsuit was brought by the Second Amendment Foundation and Tom Palmer, one of the people who successfully sued the District in an earlier case that led to the Supreme Court’s landmark 2008 decision — Heller v. the District of Columbia — declaring that the Second Amendment provides an individual right to own firearms.

But the District restricted registered weapons to homes. About 3,100 gun permits have been issued.

Scullin ruled that law unconstitutional because the city has no process for issuing carry licenses; his decision almost immediately gave legal gun owners in the District and in other states the ability to carry handguns in Washington.

The judge’s stay stopped that, at least temporarily.

Officials throughout the District are trying to determine the next step.

The U.S. attorney’s office in Washington is reviewing pending cases and has stopped charging people under the overturned law because even with a stay, that law is likely to change. Instead, prosecutors are “working to determine if other weapons charges are available,” such as misdemeanor firearms or registration violations, said spokesman Bill Miller.

Tommy Wells (D-Ward 6), chairman of the D.C. Council’s public safety committee, said lawmakers are studying gun laws in New York and Maryland as a model but haven’t made a final decision on whether to appeal. A federal appeals court last year upheld Maryland’s restrictive law on issuing handgun carry permits requiring applicants to show a “good and substantial reason” for obtaining one.

Wells said the difficult part is crafting the law to prohibit guns from “sensitive places” in the District.

Buildings, Wells said, are easy to regulate, but defining what open space should qualify for a ban is trickier.

Gura, meanwhile, has argued in previous court papers that “none of the District’s allegedly unique features justify erasing the Second Amendment wholesale throughout the entire city.” He noted that while a ban on guns in government buildings is justified, “that does not mean that they might prohibit carrying guns in a city containing government buildings.”

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