As I’m sure you heard, District officials have announced that next Tuesday, the D.C. Council will consider emergency legislation allowing individuals to apply for licenses to carry concealed firearms in public, subject to various limitations.
This proposal is in response to a federal judge’s ruling in July that the “core” of the Second Amendment right extends outside the home, and therefore that the District’s ban on carrying firearms in public is unconstitutional. The judge stayed his decision until October 22 to give the District time to bring its laws into compliance with his ruling.
We think the District did exactly the right thing in acting promptly and carefully to develop a legislative proposal that balances public safety and Second Amendment rights, as interpreted by the district judge.
However, we don’t think the city should simply accept the judge’s determination that the Second Amendment requires the city to allow residents to carry guns on its streets.
Instead, we think the District should appeal that decision, and ask for a stay of any requirement to start issuing gun permits until the appeal is complete. We say this for three reasons.
First, permitting guns on the streets of the Nation’s Capital is a momentous step that is not supported by the city’s elected leaders and should not be taken if it can be avoided. As the Mayor said on Wednesday, “I happen to be one who does not support people walking around with guns-concealed or otherwise.”
Second, it is not at all clear the judge was right in ruling that the Second Amendment requires the city to permit the carrying of guns outside the home. In the Supreme Court’s 5-4 decision in District of Columbia v. Heller, the majority opinion by Justice Scalia stated that the Court’s decision rested on the fact that the District’s gun ban applied to the home, “where the need for defense of self, family, and property is most acute.”
The Court also stated that while the Second Amendment precluded such a ban, it did not follow that the Amendment would apply in other circumstances. “For example,” the Court said, “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment.” Relying on this indication from the Supreme Court, the U.S. Court of Appeals for the 10th Circuit has held that the Second Amendment does not provide a right to carry a concealed firearm. This suggests that the District should appeal because it may well prevail in the U.S. Court of Appeals for the D.C. Circuit.
Third, even if the District didn’t prevail on that issue, we think there’s a good chance it could persuade the D.C. Circuit to reject the district judge’s holding that carrying guns in public is a “core” Second Amendment right. It is important that this be done, since courts often strike down laws that infringe upon “core” constitutional rights.
We hope the Council will preserve its ability to stay the district judge’s ruling and appeal to the D.C. Circuit. It could do this by passing the proposed legislation next week, but provide that it won’t become effective unless there is a court order finally enjoining enforcement of the challenged law. That way the District will be prepared to comply with the district judge’s ruling if need be, but at the same time will exercise its right to appeal that ruling.