Licensed handgun carry now legal in District of Columbia: Palmer v. DC

July 28

On Saturday afternoon, the United States District Court for the District of Columbia ruled unconstitutional the District’s absolute prohibition on the carrying of handguns outside the home for lawful self-defense, in the case of Palmer v. District of Columbia.

The District Court did not issue a stay, but the D.C. Attorney General’s Office announced on Sunday that it would seek a stay. As reported by the Washington Post, D.C. Metropolitan Police Chief Cathy Lanier has approved an order which allows District residents to carry a handgun IF AND ONLY IF the handgun has been properly registered with the District Police, pursuant to the District’s handgun registration ordinance.

What about non-residents? According to the Post article, “Lanier’s instructions to police also said that residents of other jurisdictions without felony records would not be charged under the ban on carrying pistols.”

Fox5 DC reporter Emily Miller reported the non-resident rules slightly differently on her Twitter feed late Sunday night: “STUNNING DEVELOPMENT: DC Police Chief Lanier just told force not to arrest a person who can legally carry a gun in DC or any state.” “More — DC police chief using guidance from AG — grants full reciprocity for all open and concealed carry from others states.” “Only gun arrests now in DC can be DC residents with unregistered guns and non-residents who are prohibited under federal laws.”

As of 1:30 a.m. ET on Monday morning, I was not able to find a copy of Chief Lanier’s order on the websites of the D.C. PoliceD.C. Attorney General, or city government. It would be helpful for non-residents who seek to comply with the D.C. government’s interpretation of the current situation if the order were speedily made available to the public.

Taking into account the summaries from the WaPo and from Fox31, it is clear that one should not read them as if they were legal codes. For example, the WaPo article indicates that non-residents “without felony records” can carry in D.C. It is possible that Chief Lanier said this, but it seems more likely that the D.C. Attorney advice which she transmitted to the D.C. Police was more restrictive than the article’s text would literally mean. Federal law (18 U.S.C. 922(g)) sets up 9 categories of persons who are prohibited from possessing firearms. A felony conviction is the best-known of the “prohibited persons” classes, but not the only one. It seems doubtful that the new D.C. order allows gun carrying by persons dishonorably discharged by the military, persons convicted of a domestic violence misdemeanor against an intimate partner, and so on, who are prohibited by federal law from gun possession.

Emily Miller’s summary could also be construed overly broadly. For example, in Colorado (except for a few municipalities) open carry of a handgun is lawful, without need for a permit. One could interpret Miller’s summary to mean that a Coloradoan who may lawfully open carry in Colorado, without a permit, may therefore do the same in D.C. However, I think a narrower reading of Miller’s summary is very likely what the D.C. Attorney proposed and that the D.C. Police were told to follow:  a non-resident may carry in D.C. IF AND ONLY IF she has a carry permit issued by another state. For example, the permit that Colorado issues and requires for persons who want to carry a concealed handgun. In Oklahoma, a person may receive a permit to carry a defensive handgun either openly or concealed. Thus, an Oklahoman (but not a Coloradoan) could have the home-state permit necessary to carry openly in D.C.

Nothing in the District Court’s opinion invalidates the D.C. ban on magazines holding more than 10 rounds.  Nothing in the opinion addresses the numerous federal and D.C. laws which prohibit carry in a huge number of locations within the District–such as most federal buildings, lots of federal property, as well as schools and colleges. (The D.C. “school” ban even encompasses a school of cosmetology whose students are all adults.) Under a 2009 federal statute, National Parks must follow the arms-carrying policies of their host state. The National Park Service regulation implementing this statute includes the following exemption to a general ban on weapons in National Parks. “(h) Notwithstanding any other provision in this Chapter, a person may possess, carry, and transport concealed, loaded, and operable firearms within a national park area in accordance with the laws of the state in which the national park area, or that portion thereof, is located, except as otherwise prohibited by applicable Federal law.” 36 C.F.R. § 2.4. Thus, it might arguably be lawful to carry a concealed handgun at the Jefferson Memorial, if you have a handgun carry permit from your home state (or if you are a D.C. resident with a registered handgun).

Can a person carry a long gun for self-defense in public in D.C.? I think not. The entire Palmer opinion is about the carrying of handguns, and defensive carry of handguns (not guns in general) was the issue that the plaintiffs argued.

In some states where open long gun carry is legal, a small number of attention-seekers have engaged in antics such as carrying their loaded rifles into fast food restaurants. These persons do not, in my view, present an appealing public face of the many millions of people who support open carry. Indeed, the shenanigans by a few people have provided Michael Bloomberg’s “Moms Demand” organization with its only significant victories of the last year: social media campaigns which convinced the corporate chains (who are inherently averse to negative publicity from any source) to ask customers not to carry guns. Persons who seek to normalize open carry of long guns have a better chance of success when they carry in a situation where carrying makes the best sense in itself, and not just as a publicity stunt–for example, walking to the shooting range, or taking a hike in a forest. In any case, nothing in the Palmer opinion or in Chief Lanier’s order appears to authorize the carrying of any firearm other than a handgun.

The Palmer decision was a long time coming. Plaintiffs’ attorney Alan Gura filed the case in 2009. Among Gura’s important Second Amendment victories are District of Columbia v. Heller, the Supreme Court case striking the D.C. handgun ban, and Ezell v. Chicago, a 7th Circuit case striking Chicago’s ban on shooting ranges open to persons who do not work for the government. Cross-motions for summary judgment in Palmer were filed on in October 2009, and a hearing held in Jan. 2010. By July 2011, the Court had not yet ruled, and the case was re-assigned to another judge. (The original judge, Henry Kennedy, retired a few months later.) By October 2013, with still no decision, Gura filed a petition for a Writ of Mandamus with the D.C. Circuit, asking for an order for a decision in the case. The D.C. Circuit denied the petition in December 2013. Gura filed a second motion half a year later, in May 2014, which became moot as a result of the District Court’s July 2014 decision.

It is rarely easy for a court to strike down a legislative enactment. But as the opinion in Palmer v. D.C. shows, there was no other option. Judge Frederick Scullin’s opinion carefully walks through the Supreme Court’s precedents of District of Columbia v. Heller and McDonald v. Chicago, and their lower federal court progeny.  Based on these precedents, it is implausible to claim that that the right to “bear” arms means nothing more than the right to “keep” arms inside the home. The District of Columbia was, as of July 2014, the only jurisdiction in the United States which completely forbade the carrying of handguns for lawful self-defense, even with a license and safety training. Thus, D.C. complete prohibition, with no process even to apply for a carry permit, was patently unconstitutional. The Court enjoined the enforcement of the anti-carry statutes.

Congratulations to Alan Gura, to the individuals plaintiffs (including Tom Palmer, a Senior Fellow at the Cato Institute, for which I am an Associate Policy Analyst), and to the Second Amendment Foundation, the Bellevue, Washington, group which was also a plaintiff, and which has supported much of Gura’s post-Heller litigation. Palmer, by the way, was one of the original plaintiffs in the case that became District of Columbia v. Heller, although he did not make it all the way to the Supreme Court because of the D.C. Circuit’s particularly stringent rules on standing. His participation in Second Amendment cases is based on part on his personal experience of drawing a gun in California in 1982, to stop some gay-bashers who were about to assault a friend and him. (Affidavit here.)

What will the D.C. government do next? Immediately, the Attorney General will ask for a stay while it decides whether to appeal. Anything can happen on appeal, but over the long term, it is difficult to see how D.C. could persist as the only place in the nation which completely forbids exercise of the constitutional right to bear arms. As the case worked its way to the Supreme Court, absolute obduracy by D.C. would increase the likelihood of corrective action by Congress. The House has already passed legislation to reform D.C.’s unusually repressive limits on gun ownership and its unique and unnecessarily cumbersome gun registration system.  (And those restrictions, unlike the carry prohibition, had the advantage of having been upheld so far in the courts.)

More prudently, the D.C. government could adopt a system allowing for licensed carry. One approach would to copy the laws of Maryland, which allows anyone to apply, but very few to receive a concealed carry permit. The Maryland statute was declared unconstitutional by a Federal District Court, but upheld by the Fourth Circuit Court of Appeals, in Woollard v. Gallagher. (For which I wrote an amicus brief on the losing side, for the nation’s two major law enforcement training organizations.)

Another approach would be to follow the approach of Virginia, and of the large majority of American states, by setting up a carry permit system which requires  background checks, plus safety training, and allows law-abiding adults to receive permits without having to prove that they have a special need. The outer limit on how restrictive such a system can be is probably provided by the 2013 Illinois law to set up a carry permit system after the 7th Circuit (in an opinion by Judge Richard Posner) ruled unconstitutional the Illinois carry ban, in Moore v. Madigan & Shephard v. Madigan. (Gura was the winning attorney on MooreShephard was a NRA case.) The Illinois system is rough around the constitutional edges (e.g., allowing some permit denials which do not provide a reason), but with some smoothing, the Illinois model would be likely to provide a constitutional safe harbor for the D.C. government.

Indeed, Judge Scullin approvingly cited Judge Posner’s Madigan language about permissible limits on carry permits: bans in certain locations such as schools (Heller‘s “sensitive places” exception), requirements for training, and express authorization of private businesses to have the choice to ban carrying on their premises.

Alternatively, D.C. could simply treat lawful handgun registration by District residents as being a concealed carry permit; the D.C. requirements to register a handgun for self-defense in the home are already more stringent than the carry permit requirements of many jurisdictions.

One thing that you cannot call the District of Columbia is a “gun-free zone.” Carrying has always been allowed by any federal employee who has job-related authorization (e.g., a surprisingly large number of employees of the EPA, Veterans Administration, and so on), the very large number of foreign diplomats and their security services in DC, plus the many security guards in the District who are hired by persons who can afford them. Not to mention the many criminals in D.C. who illegally possess unregistered handguns, and who carry them anyway. The Palmer decision simply allows lawful carry in D.C. by law-abiding and safety-trained residents of  properly registered handguns, and by their licensed counterparts who visit the District.

UPDATES: 1. Thanks to the commenters who found some errors, which have been corrected. 2. DC’s motion for a stay was filed on Monday, and is available here. DC asks for a stay pending appeal, or, alternatively, a 180 stay to enact a handgun carry licensing law (which is how much time the Seventh Circuit gave Illinois to enact such a law). 3. A WaPo article this afternoon quotes from the police instructions issued by Chief Lanier. This “technical guidance” has still not been published for the public, the DC government promises that it will be soon. According to the WaPo article, if permitless handgun open carry is allowed by a non-resident’s home state, then the person is allowed to open carry in D.C. The directed police procedure makes it clear that any non-resident who is carrying and who does not have a permit with her is going to be temporarily detained while the police run a check to see if that non-resident is a prohibited person.

SECOND UPDATE: Here’s the order issued by Chief Lanier.

THIRD UPDATE: As reported in the WaPo, With the consent of the plaintiffs, a stay was issued on July 29. It expires October 22. Judge Scullin made it clear that his ruling applies to handguns, and not to any other arms.

David Kopel is Research Director, Independence Institute, Denver, Colorado; Associate Policy Analyst, Cato Institute, Washington, D.C; and Adjunct professor of advanced constitutional law, Denver University, Sturm College of Law. He is author of 15 books and 90 scholarly journal articles.
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