FIREARMS LEGAL BRIEF:
DC "GOOD REASON" REQUIREMENT CRUSHED
For those of you that have been paying attention, you may have known that the District of Columbia has been the subject of a lot of litigation over the past two decades in relation to firearms. The original Heller, that we talk about all the time, struck down a 1976 ban on the possession of handguns, followed by a decision tossing aside the District’s total ban on carrying firearms. To circumvent that decision, the District of Columbia implemented a requirement that an individual show “good reason” to be granted a concealed carry pistol license. And yes, that’s what a carry permit is called in DC.
Carry licenses were issued subject to the chief of police’s discretion. The law authorized the Chief to issue a license to anyone who “has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol, and that he or she is a suitable person” to be licensed. You may have heard this “good reason” also referred to as “good cause” and you can find similar laws in places like California, New York, New Jersey and Maryland.
The law also enable the Chief to establish criteria to determine whether a person had established “good reason”. In order to demonstrate “good reason” to fear injury, an applicant must “at a minimum [show] of a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant’s life.” So basically, you had to prove that your life was worth of defending.
The other option would be for applicants to apply under the “other proper reason for carrying” criteria. These applicants had to show that they were employed in a manner that required the carrying of cash or other valuable objects transported on their person. So for example a person who regularly carried diamonds on their person in the course of business may have qualified for a license. The regulations implemented by the Chief also gave individuals the ability to apply if they had a close relative who was so physically or mentally incapacitated that they could not defend themselves. Simply put, a very small percentage of law-abiding citizens would qualify, leaving the majority unable to procure a license.
This provision was challenged by a man named Brian Wrenn, as well as the Second Amendment Foundation and two of its members all in one lawsuit. Another man named Matthew Grace and the Pink Pistols challenged the provision in another lawsuit. For those of you who are unaware, the Pink Pistols are a LGBTQ organization who advocates for the use of lawfully-owned and lawfully-concealed firearms for the self-defense of the sexual minority community. Both suits requested a preliminary injunction to be issued. If you don’t recall what a preliminary injunction is go check out the video I did on the California injunction, there’s a link in the description or if you’re watching on YouTube, you can click the card up in the corner.
The District Court denied the preliminary injunction requested by Wrenn but granted the one asked for by Grace. As a result, in both instances, the parties appealed to the Circuit Court of Appeals which consolidated the cases and heard them together.
The Court was left to determine whether the “good reason” requirement impeded on a “core” Second Amendment right. It began the analysis by looking at the Supreme Court’s decision in Heller. Finding that the Second Amendment’s “core lawful purpose” was self defense, and that the text of the amendment protects the right to “keep” and “bear” arms, the Court determined that it was “more natural to view the Amendment’s core as including a law-abiding citizen’s right to carry common firearms for self-defense beyond the home.” The Court specifically noted that the Heller decision found “ to “bear” means to “‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” As a result that definition shows that the Amendment’s core must span…[to] the “right to possess and carry weapons in case of confrontation.” This analysis was bolstered by a long line of cases the Court quickly recounted.
After determining that the “good reason” law burdened a “core” right, the Court looked at several other arguments. First, it examined the argument set forth by the District of Columbia which stated that densely populated or crowded areas were excluded from the right to carry a firearm. This argument was premised on old English law, which had banned such conduct dating back to 1328. The District argued that because similar laws had found their way to the colonies by the 1700s and later on to the states by the mid-to-late 1800s, the “core” right to carry did not apply to those areas. Yes, that’s right, they’re citing to a law from the 1300s.
Fortunately, the Court quickly dismissed such an illogical argument. It noted that due to Heller “we can sidestep the historical debate on how the first Northampton law might have hindered Londoners in the Middle Ages. Common-law rights developed over time, and American commentaries spell out what early cases imply: the mature right captured by the Amendment was not hemmed in by longstanding bans on carrying in densely populated areas. Its protections today don’t give out inside the Beltway.” Simply put, the Court stated that the Second Amendment was not restricted in its applications to carrying firearms in densely populated areas.
The District advanced another argument that I found quite curious. It argued that based on old English surety laws, carrying a firearm was excluded from the core Second Amendment protections. For those unfamiliar with surety laws, the Court provides an excellent example.
“These laws provided that if Oliver carried a pistol and Thomas said he reasonably feared that Oliver would injure him or breach the peace, Oliver had to post a bond to be used to cover any damage he might do, unless he proved he had reason to fear injury to his person or family or property.” Essentially, Oliver was posting money of his own in the form of a bond as “insurance” against him taking some adverse action. So this is social justice warrior insurance from ye olde days.
However, this argument was also rejected by the Court. Unlike the District’s characterization, surety laws did not deny a regular person the right to carry a firearm unless they showed a special need for self defense. Rather, everyone had a robust right to carry a firearm. It was only restricted in the event that someone was reasonably accused of potentially being a danger. The rationale explained in Heller squarely rejected that such civil burdens shed light on the historical right found in the Second Amendment.
The Court then turned to the decisions issued by other Circuit Courts in relation to “good cause” cases. It found that the majority have stated that burdens on carrying firearms trigger intermediate scrutiny. Remember, Intermediate scrutiny requires that the challenged law further an important government interest in a manner that is substantially related to that interest.
The Second Circuit found that the right to bear arms must count for less than the right to keep arms since the right to bear has been regulated more stringently. Likewise, the Fourth Circuit has concluded that as conduct outside of the home is examined, firearms rights have always been more limited and restrictions on such conduct is acceptable. The Third Circuit relied on the reasoning set forth by the Second and Fourth Circuits to conclude that a “good reason” law should be subject to intermediate scrutiny. The Ninth Circuit, everybody’s favorite circuit, determined in its en banc Peruta decision that because outright bans on concealed carry have been upheld, “good reason” provisions must be constitutional.
However, the Court was unimpressed with the analysis that the circuit courts chose to use. Quoting the panel decision from Peruta, the Court stated that “the Second, Third and Fourth Circuits…declined to undertake a complete historical analysis of the scope and nature of the Second Amendment right outside the home…As a result, they misapprehend both the nature of the Second Amendment right and the implications of state laws that prevent the vast majority of responsible, law-abiding citizens from carrying in public for lawful self-defense purposes…[They] failed to comprehend that carrying weapons in public for the lawful purpose of self defense is a central component of the right to bear arms.”
The 7th Circuit, the only other circuit to engage in a historical analysis through the lense of Heller, also struck down a more widely applicable carrying ban. The Court concluded that carrying beyond the home, even in populated areas, without special need, falls within the core of the Second Amendment’s coverage.
After concluding that the right to carry beyond the home was within the core of the Second Amendment, the court was left to determine what level of scrutiny to apply in examining the challenge. Grace and Wrenn argued that the ban should be struck down, without applying any level of scrutiny, and for the court to apply the same logic found in Heller. The District argued that intermediate scrutiny was the correct level of scrutiny to apply.
After a brief review of Heller, the Court stated that “[a]t a minimum, then, the Second Amendment must enable armed self-defense by commonly situated citizens: those who possess common levels of need and pose only common levels of risk.” It further found that “if the Amendment is for law-abiding citizens as a rule, then it must secure gun access at least for each typical member of that class.” The “good reason” law imposed by the District bars most people from exercising the right at all. Under the Heller analysis, a complete prohibition of Second Amendment rights are always invalid. As such, there is no need to apply any scrutiny analysis.
The Court went on to say that “By declining to apply tiers of scrutiny to a total ban on ownership, Heller I closed off the possibility that courts would erroneously find some benefits weighty enough to justify other effective bans on the right to keep common arms. We would flout this lesson of Heller I if we proceeded as if some benefits could justify laws that necessarily destroy the ordinarily situated citizen’s right to bear common arms—a right also guaranteed by the Amendment, on the most natural reading of Heller I.” The Court noted that the “good reason” law was not a total ban, but also acknowledge that the ban on ownership in Heller had limited exceptions before it was struck down as unconstitutional. As such, the same analysis should be applied in this case.
The Court summarized the analysis by stating “[a]t the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense. In fact, the Amendment’s core at a minimum shields the typically situated citizen’s ability to carry common arms generally. The District’s good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That’s enough to sink this law under Heller I.”
The Court continued “Because the District’s good-reason law merits invalidation under Heller I regardless of its precise benefits, we would be wasting judicial resources if we remanded for the court to develop the records in these cases.” As a result, the Court vacated the orders below and remanded the cases to the District Court with orders to enter permanent injunctions against the enforcement of the District’s “good reason” law. In short, the “good reason” requirement will no longer be part of the application process in DC.
The District could seek review of the Circuit Court’s panel decision, but it is unknown if they will pursue that review at this time. As of the filming of this episode, orders have not yet been issued for the permanent injunction against the District and the “good reason” requirement is still currently in effect until that happens. If you liked this episode or found it informative be sure to hit that like button and share it around with your friends. And if you aren’t subscribed already, you better make that happen and be sure to ring that bell so you don’t miss an episode. Also, check out my website adamkraut.com.
And as always thanks for watching!
Links for this episode:
Wrenn, et al. v. District of Columbia, et al. : https://www.cadc.uscourts.gov/internet/opinions.nsf/E2F5AEE1CAB3A06C85258168004F3EE5/$file/16-7067.pdf
About The Gun Collective
The Gun Collective is dedicated to bringing you the highest quality, fast paced gun content possible. Started in June 2015 by Jon Patton, TGC has rapidly taken off to become a go-to source for the things you need to know without a bunch of BS. Please check out TheGunCollective.com to learn more and see what the hype is all about!
