Tom Palmer (who works for the libertarian institutions the Atlas
Network and the Cato Institute and has been a movement intellectual
and activist since the 1970s) over the weekend, to his great
surprise won his case overturning D.C.’s lack of legal allowance
for carrying their legally registered weapons in public. The case
had been languishing in U.S. District Court in D.C. for mysterious
reasons for five years and a Saturday decision release is
unusual.
The core
of the decision, which relies relies quite a bit on a case from
the 9th Circuit in California, Peruta v. San
Diego, which I blogged
about in March.
In light of Heller, McDonald, and their progeny, there is no
longer any basis on which this Court can conclude that the
District of Columbia’s total ban on the public carrying of
ready-to-use handguns outside the home is constitutional under any
level of scrutiny. Therefore, the Court finds that the
District of Columbia’s complete ban on the carrying of handguns in
public is unconstitutional. Accordingly, the Court grants
Plaintiffs’ motion for summary judgment and enjoins Defendants
from enforcing the home limitations of D.C. Code § 7-2502.02(a)(4)
and enforcing D.C. Code § 22-4504(a) unless and until such
time as the District of Columbia adopts a licensing mechanism
consistent with constitutional standards enabling people to
exercise their Second Amendment right to bear arms.4
Furthermore, this injunction prohibits the District
from completely banning the carrying of handguns in public for
self-defense by otherwise qualified non-residents
based solely on the fact that they are
not residents of the District.
Palmer was an original plaintiff in the Heller case as
well, and has a harrowing story of being menaced by a gang of thugs
in his youth in which he learned the very practical value for
self-defense of being able to have a weapon in public, not just in
the home. (Palmer also says that although this story is compelling
to many who might wonder why someone wants to have a gun outside
the home, having already been menaced in public should not
settle the question of someone’s right to carry a weapon for
self-defense. It’s about the right, not just about his personal
experience.
He knows for a fact that the right to carry has the promise of
making his life safer, though he acknowledged that
“undoubtedly some people will believe that [the decision will
make the people of D.C. less safe]. But plenty of people who have
been victims of violent crime will be relieved to know they can
defend themselves. People who are knowledgeable about firearms and
who don’t live in fantasy worlds will understand that having legal
firearms owners around you makes you safer. The criminals are
currently carrying concealed weapons—this shocks and surprises
many people! But that’s the fact.”
Palmer says now whatever way D.C. tries to manage or regulate
the right to carry short of the total ban off the table will be
“a political decision as a matter of law” and that he doesn’t
see a core constitutional rights issue involved in open v.
concealed carry. In fact, Palmer thinks that gun carry activists
who “walk into Wal Mart with firearms displayed in ready to use
mode are a disgrace. Its all about look at me, look at me.” That
sort of activism, Palmer says, “has not advanced the agenda of law
abiding people exercising their rights” to self-defense outside the
home.
Palmer gives all credit to his lawyer Alan Gura, and that
if the city decides to try to appeal the decision they are prepared
to go as far as necessary. “We will not give up.”
The decision in Palmer takes full bans on public carry
off the table for D.C., but the issue of the extent to which the
right can be regulated and curtailed–specifically whether
localities can insist that a local official must decide whether you
really need one–ought to be taken up by the Supreme Court soon,
though they have so far been reluctant to do so. See my April
feature
discussing the New Jersey Drake v. Jerejian case that
the Court declined this year, challenging the state’s restrictive
carry licensing regime.
Alan Gura, the lawyer who won this Palmer case and both
major Supreme Court cases that established the individual right in
the Second Amendment (Heller) and
then extended it to states and localities (McDonald),
summed up
the case’s importance on his blog:
In 2012, I won Moore
v. Madigan, 702 F.3d 933 (7th Cir. 2012), which struck
down Illinois’ total ban on the carrying of defensive handguns
outside the home. With this decision in Palmer, the
nation’s last explicit ban of the right to bear arms has bitten the
dust. Obviously, the carrying of handguns for self-defense can be
regulated. Exactly how is a topic of severe and serious debate, and
courts should enforce constitutional limitations on such regulation
should the government opt to regulate. But totally banning a right
literally spelled out in the Bill of Rights isn’t going to
fly.
Gura also this morning posted on his website a link to the
city’s response
memo, approved by police chief Cathy Lanier, in which police
are advised they cans still stop people and ask them about guns on
their person. If they find the citizen has a gun and they are a
D.C. resident and it isn’t registered, they can still be collared.
If they are a non-D.C. resident from an area where you don’t need
to license or permit to carry they are free to go—unless they are a
felon or otherwise legally barred from possessing handguns.
Meredith Bragg blogged the
breaking news over the weekend. I wrote the history of the
Heller case,
Gun Control on Trial, in which lawyer Gura and plaintiff
Palmer were stars.
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