Hands up! The United States Court of Appeals for the District of Columbia Circuit in late July 2017 issued a startling opinion that the right to carry a concealed firearm is a core Second Amendment right. Wrenn, et al. v. D.C., No. 16-7025, 2017 WL 3138111 (D.C. Cir. July 25, 2017).

The District of Columbia had a process in place to enable residents to obtain a permit to carry a concealed firearm if they could establish “a good reason to fear injury to their person or property.” D.C. Code § 22-4506(a)-(b). Regulations governing the issuance of permits limited licenses to applicants who would allege in writing serious threats of death or serious bodily harms, any attacks on their person, or any theft of property from their person. There were other grounds for a permit, such as the need to carry around cash or valuables as part of a job.

The court held the regulations to be invalid without the need to apply tiers of scrutiny (intermediate or strict) because the regulation is analogous to the total ban struck down in the case of handguns in D.C. v. Heller, 554 U.S. 570 (2008).

A core or central component of the Second Amendment is the right that protects individual self-defense. McDonald v. Chicago, 561 U.S. 742 (2010). This core right had been held to cover the right of a law-abiding citizen to bear arms in the house for self-defense. There has been substantial debate whether this right extends outside the house. Maryland has said it does not. Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013). The D.C. Circuit had its own view holding,

“it’s more natural to view the [Second] Amendment’s core as including a law-abiding citizen’s right to carry common firearms for self-defense beyond the home (subject again to relevant ‘longstanding’ regulations like bans on carrying ‘in sensitive places’).”

Common firearms include handguns. When the D.C. government attempted to assert an exception to core constitutional rights based on dense population, the D.C. Circuit refused to bite, in essence telling the D.C. government that constitutional rights do not begin and end at the Beltway.

Jim was quoted in Bloomberg Law, United States Law Week, calling the opinion “brazen.” It is. But will it stick? This case will either be reconsidered by the court en banc or it will be heard by the United States Supreme Court as it is in direct contradiction with the Fourth Circuit’s decision in Woollard v. Gallagher and the Ninth Circuit’s decision in Peruta v. San Diego, 824 F.3d 919 (9th Cir. 2016), Cert. denied 137 S. Ct. 1995 (2017).

If you have any questions regarding firearms and their regulation, contact Jim Astrachan at jastrachan@agtlawyers.com or Elizabeth Harlan at eharlan@agtlawyers.com.