DC Circuit Won't Rehear Gun Case; Supreme Court Next?

By Christopher Coble, Esq. on October 03, 2017 | Last updated on March 21, 2019

The District of Columbia has been notoriously aggressive with gun legislation, making the D.C. Circuit ground zero for legal battles over the Second Amendment. The latest skirmish -- over whether residents must prove 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" in order to obtain a carry permit -- appears to be over in the circuit court, and may be headed a few blocks over to the Supreme Court.

In July, a three-judge D.C. Circuit panel invalidated the District's gun ordinance, and last week the circuit denied the District's request for an en banc rehearing before the entire court. D.C. can request for review from the Supreme Court, a request most think the Court would grant.

Laws of the Land

The case concerns so-called "shall issue" firearm license regulations whereby a state must issue a license to carry a gun in public so long as a person can pass the necessary background checks. D.C. attempted to turn from "must issue without a good reason not to" to "won't issue without a good reason to," but was shot down by the circuit court. In doing so, the D.C. Circuit found the Second Amendment protects a person's right not only to "keep" arms in the house, but to "bear" arms in public. The new regulation, it held, would amount to a "total ban" on those rights, and was therefore unconstitutional.

Admitting that constitutional challenges to gun laws "create peculiar puzzles for the courts," Judge Thomas Griffith, writing the majority opinion, nonetheless asserted "the Second Amendment erects some absolute barriers that no gun law may breach." The circuit then refused to reconsider Griffith's ruling.

A Law Supreme

If D.C. does appeal the decision to the Supreme Court, it would likely find an audience. Although the Court grants very few petitions for appeal, legal scholar Eugene Volokh notes the Supreme Court takes requests for review from government entities like D.C. fairly seriously, and there is currently a split of authority on the subject: the 2nd, 3rd, 4th, and 9th U.S. Circuit Courts have generally ruled there is no right to carry ("though with some differences in the analysis among the courts"), while the 7th Circuit, D.C. Circuit, and Illinois Supreme Court fall on the right-to-carry side.

The Supreme Court has not been too kind to D.C. gun laws in the past. In 2008, it struck down a District law banning all handgun possession within the city.

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