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Gun Controllers Score Temporary Win in DC

Gun Controllers Score Temporary Win in DC

Federal appeals court allows DC to reinstate “good cause” gun control provision

For anybody who loves their civil rights, the dismantling of unconstitutional gun control schemes across the United States has been a marvel to behold. Today, only a handful of states continue to substantively restrict the ability of law-abiding residents to carry concealed handguns.

One of those “states” still aggressively crushing fundamental civil rights is, ironically enough, the nation’s capital, the District of Columbia. Pro-gun advocates suffered a modest and rare setback yesterday, according to Hotair.com and other sources, when a federal appeals court re-instated a gun control provision that that is used to effectively deny gun permits to almost all applicants.

The District has long operated under some of the most oppressive gun control laws in the country, at one point even requiring the few guns legally owned to be dismantled while within the District. (These rules were upheld in spite of the fact that DC was also one of the “murder capitals” of the country, and practically awash in illegally owned guns used by criminals.)

In recent years, however, the District’s gun control scheme has come under assault in the form of a pro-2nd Amendment attack led by civil rights attorney Alan Gura. Last July, as part of a suit brought by Gura, Federal Judge Frederick Scullin ordered that the District begin issuing concealed carry permits to qualified persons.

The District did so, but of course not in good faith. They built into their licensing scheme a condition also employed in the other remaining gun control jurisdictions that while nominally allowing for concealed carry licensing in practice continues to deny permits to all but the wealthy and politically connected.

That condition is what is commonly referred to as the “good reason” provision. A simple desire to be able to defend oneself from a future crime is deemed insufficient justification to be granted a permit. Instead, one must have a specific reason—for example, a particularized threat to one’s person—that satisfies the subjective and ill-defined criteria of the licensing authority.

Such “good reason” provisions are currently in place in states such as New Jersey, New York, and Maryland, and are used to effectively deny concealed carry permits to the vast majority of the population. Circuit courts with jurisdiction over those states have upheld their “good reason” provisions, which is what led the District to incorporate it into their purported licensing scheme.

Gura, who is no fool, immediately launched an attack on the District’s “good reason” provision—an attack that achieved success with a ruling from Judge Scullin last month.  (Scullin’s ruling, which includes relevant history on the fight against unconstitutional gun control in the District, is embedded below.)

Naturally, the District objected and appealed to the relevant federal court, even as they began to process scores of concealed carry permits consistent with Judge Scullin’s ruling.  The district’s position was laid out before that court this past Friday, and was reported by American University Radio:

And on Friday, D.C. Attorney General Karl Racine argued in a court filing that since similar laws had been upheld in other states, a stay should be granted pending a full appeal.

“Three federal circuits have considered provisions similar to the District’s ‘good reason’ standard, and all three have upheld the standard, citing the same considerations the District relies on here. Especially given the weakness of plaintiffs’ showing of a threat of irreparable injury — their theory is that they need not show any particularized need to carry handguns — a stay is warranted,” said the filing.

The current stay is only temporary; Racine still has to make the case for a longer stay that will apply as the full appeal of Scullin’s May ruling plays out. But on Friday he said that the stays are necessary as the court untangle the legal issues surrounding the city’s concealed carry law.

“The law the District’s officials have adopted is in line with laws in New Jersey, New York and Maryland — all of which have been upheld by federal appeals courts,” he said. “We believe we will prevail on appeal, and a stay is necessary to maintain the status quo in the law while the courts consider constitutional issues with important implications for public safety.”

Yesterday that federal appeals court issued a temporary injunction that suspended Judge Scullin’s suspension of the District’s “good cause” requirement, putting the “back door” gun control scheme back into effect.

The reinstatement of the “good reason” is temporary, and will be fully considered by the federal appeals court.

In the meantime, however, the District is expected to once again begin denying gun permit applications to essentially all applicants on the basis of this “good reason” provision.

As promised, here’s Judge Scullin’s May ruling that suspended the District’s “good reason” requirement:

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.

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Comments

This goes to the DC Circuit, the very Court Obama was able to pack with supporters when Reid eliminated the filibuster rule for judicial nominees late in 2014.

I wonder how many of the judges and politicians have CCW’s.

A lot of dead people can show they had “good cause”…too late.

shall not be infringed.
pretty much the strongest statement in cotus is one ignored most often.

A win for murderers and rapists.

That said, it’s simply inconceivable that a nation with the greatest per capita gun distribution does not self-abort. It must be the regulations, right? Perhaps there is another plausible explanation.

Char Char Binks | June 16, 2015 at 9:00 pm

I’d think that living in DC is a good enough reason to carry.

I can see the questions now:

1) Are you currently being shot at? Describe the weapons being used against you and approximate number of rounds per minute being fired. Be specific. Errors in your application are grounds for rejection.

2) Have you or any other members of your family, alive or dead for the last seventy-five years committed any crime including jaywalking, speeding, improper parking, or canoodling?

3) Do you currently own a firearm? If so, please turn it over to the police until this application is processed in 30-90 months.

4) Does your current insurance cover liability in the event of accidental or intentional discharge of a firearm with a minimum coverage of $50 million dollars?

Walker Evans | June 16, 2015 at 10:41 pm

4fun — “I wonder how many of the judges and politicians have CCW’s.”
Rags — “A lot of dead people can show they had ‘good cause’…too late.”

Several years ago then-Mayor Mikey Bloomberg was walking across the street in NYC to attend an anti-gun event. He was surrounded by six burly guards at least two of whom were seen to have either Uzi’s or Mac-10’s under their jackets. The message was clear: I am important, my life matters, I deserve armed protection … unlike all you low class peons. (It was later discovered that the guards were Mikey’s private security, not city employees.)

Children, can you say “hypocrite“?

    AZ_Langer in reply to Walker Evans. | June 16, 2015 at 11:20 pm

    That seems to be a common factor among those who seek to disarm us, and apparently (as long as they’re somewhat useful, at any rate) includes Bloomy’s rent-a-moms, etc.

When CA9 shoots down Peruta (oral arguments were today, but you know the fix is in) HI and CA will be in the same boat.

FrankNatoli | June 17, 2015 at 7:54 am

Elect Democrats, get judges who rule this way. Cause and effect.

As for how “good” the reason has to be, there was a guy in NJ who was kidnapped, thrown in a trunk, transported across state lines, only for the heavily armed kidnappers to discover he was the wrong guy. Lucky for him, he got away. When he got back to Jersey, and applied for a concealed carry permit, he was denied. Not “good reason”.

Elect Democrats, get judges who rule this way. Cause and effect.

If I could predict successfully when and where I will become a crime victim, I could probably also make a lot of money betting on football games.

What unconstitutional gun schemes would those be? Apparently the Supreme Court doesn’t think anything other than outright prohibition of gun ownership is unconstitutional. The following is from a June 9th comment by a guy calling himself “Dave (the Liberal, non-Uncle one)” over at Massad Ayoob’s “Massad Ayoob on Guns” blog (source: http://backwoodshome.com/blogs/MassadAyoob/2015/06/07/catching-up/#comments )

“There’s an interesting thing happening in regard to Second Amendment law, most recently illustrated by the Supreme Court’s decision this week in which the Court declined to hear the appeal of Jackson v. City and County of San Francisco, in which the lower courts upheld, against a Second Amendment challenge, San Francisco’s law that requires guns kept at home to be kept in a locked container or have a locked trigger lock in place.

“Most of what I’m about to say next comes from this American Bar Association paper:

http://www.americanbar.org/content/dam/aba/images/abanews/GunViolenceWhitePaper_020615.pdf

“There have been more than 900 decisions since Heller challenging various firearm regulations and in all but a _tiny_ number, the courts have upheld the regulations. The paper says that the kinds of regulations which have been upheld include:

‘• Possession of Firearms by Criminals
o Prohibiting possession of firearms by felons
o Prohibiting possession of firearms by domestic violence misdemeanants
o Prohibiting possession of firearms by an individual who is under indictment for a felony
o Prohibiting possession of firearms during the commission of a crime
• Firearm Ownership
o Requiring background checks for private firearm transfers
o Requiring registration of all firearms
o Requiring an individual to possess a license to own a handgun
o Requiring handgun permit applicants to pay a $ 340 fee every three years
o Prohibiting the sale of firearms to individuals who do not reside in any U.S. state
• Possession of Firearms in Public
o Requiring an applicant for a license to carry a concealed weapon to show “good cause,” “proper cause,” or “need,” or to otherwise qualify as a “suitable person”
o Requiring an applicant to submit affidavits evidencing good character
o Prohibiting the issuance of a concealed carry permit based on a misdemeanor assault conviction
o Requiring an applicant to be a state resident
o Requiring an applicant for a concealed carry license to be at least twenty-one years old
o Allowing the revocation of the permit if law enforcement determines that the permit holder poses a material likelihood of harm
• Firearm Safety
o Requiring the safe storage of handguns in the home
o Prohibiting the possession of a firearm while intoxicated
• Particularly Dangerous Weapons
o Forbidding the possession, sale, and manufacture of assault weapons and large capacity ammunition magazines
o Prohibiting the sale of “particularly dangerous ammunition” that has no sporting purpose
• Firearm Possession By Other Dangerous Individuals
o Prohibiting the possession of firearms by individuals who have been involuntarily committed to a mental institution
o Prohibiting possession of firearms by an unlawful user of a controlled substance
o Prohibiting possession of firearms by individuals subject to a domestic violence restraining order
o Authorizing the seizure of firearms in cases of domestic violence
• Conditions on the Sale of Firearms
o Requiring a gun dealer to obtain a permit and operate its business greater than 500 feet from any residential area, school, or liquor store
o Prohibiting the sale of firearms and ammunition to individuals younger than twenty-one years old
• Firearms in Sensitive Places
o Prohibiting the possession of firearms within college campus facilities and at campus events
o Prohibiting the carrying of a loaded and accessible firearm in a motor vehicle
o Forbidding possession of a firearm in national parks
o Prohibiting the possession of firearms in places of worship
o Prohibiting the possession of firearms in common areas of public housing units
o Prohibiting the possession of guns on county-owned property
• Regulation of Firing Ranges
o Requiring firing range patrons to be at least 18 years of age
o Requiring that ranges not be located within 500 feet of sensitive locations
o Construction requirements, including bullet-proof wind8ows and doors, noise limits, plumbing and electrical requirements. and separate/interlocked ventilation systems
o Requiring that a range master be present at all times’

(Citations omitted, see original paper for citations.)

“Of those 900 or so cases about 60 have made their way to the Supreme Court and — here’s the interesting part — the Supreme Court has refused to hear any of them since McDonald, even those which would appear to possibly contradict what was done in Heller and McDonald (which were, from a lawyer’s point of view, anything but crystal-clear).

“At least two cases which the Supreme Court has declined to hear have held that there is no Second Amendment right to possess firearms outside the home. If you add that to the San Francisco requirement that arms kept at home have to be securely locked away, then the Second Amendment right to possession of firearms for self-protection seems very limited indeed.

“Ascribing an ideology or reason for the Supreme Court to deny accepting cases is worse than a crap shoot. All that can really be said is that at least 6 justices have each of these 60 times not wanted to hear the case (it takes the vote of 4 justices to accept a case) and, of course, the composition of those 6 can change from case to case. But this is looking odd and has been commented on several months back in the conservative American Spectator:

http://spectator.org/articles/59552/our-gun-shy-justices

(By the way, Peruta v. County of San Diego, mentioned in that article and in the ABA paper, which upheld a 2nd Amendment right to bear firearms outside the home has, since that writing, been accepted for rehearing by the full Ninth Circuit, a sign that often presages the three-judge panel of that court, which upheld that alleged right, being reversed.)

“Heller can be read to say that the Second Amendment right it announced is very limited and is subject to strong regulation. If the Supreme Court continues to deny hearing regulation cases, it would appear that will be true de facto if not clearly de jure that the Supremes will be willing to put up with just about any kind of regulation except for absolute prohibition, and in light of what they’ve done so far one has to begin to wonder, with the caveats noted above, if that’s not exactly the message they’re trying to send. (One corollary of which is that, _if_ that is correct, the notion of “Constitutional carry” is nonsense. “Constitutional kept locked away in a gun safe in your home” may have some validity, but carry? Not so much.)”

A subsequent poster there at that blog noted that the SF prohibition actually says that guns in homes have to either be locked away, equipped with a locked trigger guard, or be carried on one’s person at all times. Liberal Dave agreed that was correct, though it still doesn’t make it very practical to have to wear your gun to bed. He also noted that the law approved in that decision also prohibits the sale of hollow point ammunition in SF.

The District, the district court and the court of appeals are pissing up a rope. A law that effectively denies the majority of the people the exercise of a fundamental right is facially unconstitutional. The recalcitrance of these courts is ideological and political. The U.S. 2nd, 3rd, 4th and D.C. circuits will have to be dragged, kicking and screaming, into compliance by the SCOTUS.

IF the SCOTUS ever musters the guts to address this issue.

Which is probable, but not certain.

One thing is irrefutable, though: Any law that materially denies the public at large the exercise of a fundamental right is UNCONSTITUTIONAL.

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