Legal Issues

Federal Judge: D.C. Carry Ban ‘Unconstitutional’

Gavel with American flag

Over the weekend, a federal judge in the District of Columbia overturned the District’s ban on allowing residents to carry firearms outside their home. Palmer v. District of Columbia is a landmark decision for gun rights — at least for the time being. The District of Columbia has said that it will seek a stay of the decision, which became effective immediately, and the District will appeal the decision.Gavel with American flag An immediate effect of the ruling was an order approved by Police Chief Cathy L. Lanier, who told her force told that District residents are permitted to carry pistols if the weapons are registered. Those who had not registered their handguns could be charged on that ground, the instruction said.

Lanier’s instructions to police also said that residents of other jurisdictions without felony records would not be charged under the ban on carrying pistols. Tom G. Palmer, George Lyon, Edward Raymond, Amy Mcvey, and the Second Amendment Foundation, Inc., are named as plaintiffs in the case. The defendants are the city government and Police Chief Lanier. Interestingly, Palmer was also a defendant in the landmark Heller case.

In his 19-page ruling, Judge Frederick Scullin Jr. wrote, “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.” “Ever since the 2008 Heller ruling by the Supreme Court, the District of Columbia has carried on a campaign of red tape and regulation to discourage citizens from exercising their Second Amendment rights,” said SAF founder and Executive Vice President Alan M. Gottlieb. “This has included bearing arms outside the home for personal protection. We applaud Judge Scullin’s ruling, because the time is long overdue for the city to realize that it is the capitol of the United States, not a police state.” Alan Gura, lead attorney for the Second Amendment Foundation, which funded the case, wrote 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.” Gura had twice asked a federal appeals court to force Judge Scullin to issue a decision. The five plaintiffs filed in 2009, and the case was argued twice, most recently in Oct. 2012.

In Judge Scullin’s decision, he extensively cited Supreme Court decisions in District of Columbia v. Heller in 2008 and McDonald v. Chicago in 2010, concluding, “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.” Additionally, the court “enjoins Defendants from enforcing the home limitations [of D.C. firearms laws] 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.” The court also ordered the city to allow legally qualified residents from the District and other states to carry weapons within its boundaries.

Gottlieb said, “Washington, D.C. is not some political gulag, but the seat of government in a land of free people. A cornerstone of that freedom is the right to keep and bear arms, and where better to exercise that right than in the nation’s capital? We have no intention of letting anti-gun city officials further delay the ability of law-abiding citizens to exercise their rights. As Dr. Martin Luther King said, ‘A right delayed is a right denied.’ SAF lawsuits have overturned laws not only in Washington D.C., but in several states including Illinois, California, North Carolina, New Mexico, Nebraska, and cities like San Francisco, Seattle, Des Moines and New Haven, among others, Gottlieb noted. Threats of SAF lawsuits have removed well over 100 anti-gun-rights laws across the country as well as stopping hundreds more from being enacted, Gottlieb added.

Gura wrote on his blog, “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. My deepest thanks to the Second Amendment Foundation for making this victory possible and to my clients for hanging in there. Congratulations Americans, your capital is not a constitution-free zone.”

Update

July 29, 2014 — Judge Scullin stayed his decision for 90 days to give city officials and D.C. police officers time to respond to the ruling that overturned the District’s ban.

 

Do you think District officials will follow the ruling and enact reasonable carry rules for D.C.? Let us hear your thoughts in the comment section below.

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D.C. police won’t enforce handgun ban; stay of ruling overturning law will be sought Licensed handgun carry now legal in District of Columbia: Palmer v. DC

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Comments (44)

  1. It was a pleasure speaking with you this morning. Please find attached an article on the LEOSA law as well as some links to other articles that have been posted on our Law Enforcement Division’s webpage. I would recommend starting with the Frequently Asked Questions article (http://le.nra.org/leosa/frequently-asked-questions.aspx) and then moving on to the attached Police Magazine story. The other articles can be found on the left hand side at the following link: http://le.nra.org/leosa.aspx

    Semper Fidelis,

    James M. Baranowski
    Associate Litigation Counsel
    NRA Institute for Legislative Action
    phone: (703) 267-1161
    fax: (703) 267-1164
    NRA-ILA

    Now if I can find my original response. Thor

  2. Thanks so much for the help. I finally Googled it for more definition and got this:
    “Every state in the US except North Carolina allows a regular citizen to make an arrest if they see somebody committing a felony. In North Carolina a citizen can detain a suspect who is committing a felony, but they don’t have the right to transport the person without consent. For this reason it is not technically considered a “citizen’s arrest” in North Carolina.”
    I should have known that NC would be different. 🙂

  3. Not so…I qualified with a revolver and a semi auto and both are printed on my LEOSA CARD…..I can any firearm I want…and I carry two whenever I travel…..READ LEOSA like he said

  4. Political B.S. games…..no, yes.up, down, in, out most of it dictated by greasing the palm of the hand or the dictates of the head honchos who are really in control. And only looking down the barrel might possibly stop them.(Aw shucks, I’m just kidding)

  5. The actual question was, “Do you think District officials will follow the ruling and enact reasonable carry rules for D.C.? ” Based on prior experience the only rationale expectation is, “Not bloody likely!” Ever since passage of the GCA of 1968, or perhaps earlier, the increasing percentage of our elected officials,who plainly don’t trust us with anything sharper than a tennis ball have been looking for was to disarm the populace. Getting slapped down by the court or turned out of office by the electorate plainly doesn’t discourage them. For myself, I’m with Thomas Jefferson: “When the people fear their government, there is tyranny; when the government fears the people, there is liberty.”

    1. J Rickeett did you know you can be arrested for intentionally throwing that “Tennis Ball” at someone with intent to harm them?

      If you throw it at a protected person or a protector, assault is automatically assumed regardless.

      Crazy huh?

      I personally wish we could throw Cake and Pies!

  6. @ FrankD: Not only are you wrong, but you are speaking out of your element here.

    Federal agents/officers do in-fact have arrest authority anywhere throughout the U.S., its territories, and even other nations where Congress has granted them extraterritorial jurisdiction.

    As well, state and local officers are often provided multijurisdictional arrest authority when acting as members of multi-agency task forces. Even private citizens have arrest authority anywhere in the U.S.

    But none of this matters anyway because neither “tampa five-o” nor I said a thing about making arrests. What we were writing about was our right to carry concealed in any state without regard to their local laws because the United States Congress per the U.S. Constitution has bestowed such a right to all Active and Retired law enforcement officers.

    And because the Constitution is the Supreme Law of the Land, it does in-fact trump any state or local law. So while you are correct that states “can pass whatever local laws they wish”, the LEOSA act gives us (law enforcement) immunity and thus we may carry in any state without regard for those states prohibitive laws.

    1. G Man:
      Was there an amendment to the LEOSA bill? It was my understanding, as a retired LEO, that we had to obtain a LEOSA permit and qualify annually. Please share with me your thoughts on this or am I entirely wrong. What I took away from your post is all I need are my retired creds and badge to carry concealed weapon in all 50 states.

    2. @ Michael O (retcop158): My apologies for getting your hopes up with the wrong impression. Wouldn’t that be nice if we didn’t have to requalify every year?

      I just did not feel the need to go that in depth while explaining to FrankD how wrong he was. He is obviously not law enforcement so explaining our annual requirements would have been a waste of my time.

      Unfortunately Retired Officers must also continue their annual qualification course of fire to maintain their LEOSA rights.

      However, there were some amendments to H.R. 218 through other legislation as recently as 2013, but it primarily changed language that allowed Active and Retired Military Police to also fall under LEOSA.

      Again I apologize if I created confusion.

    3. G Man
      Thank you for the reply. I understand why you didn’t go deeper into the topic. There are good people out there that have no idea in the dynamics of being a police officer. The days of “here is your badge and gun now go get’em.” We live in a Civil Suit/Liability era. The public must realize the split second decisions LEOs have to make and their consequences that go with them. If any non law enforcement people read this, please sit and think for a moment of what goes on “in the street” and what we face every time we go on duty. I’ll get off my soap box for now. Thank you citizens who support law enforcement and those who question it, think what YOU would do in certain life or death situations. For me, it was a pleasure serving the public for 22 years in a major city and the surrounding areas.

    4. I need a refresher course in reviewing my own postings! I left out “here is your badge and gun…ARE GONE.”

    5. The only problem I have with HR218 is that you can only carry the gun you qualify with yearly. With my North Carolina CCP I can carry any of my guns in all reciprocal CCP states

    6. @ Richard Nesdall: Your statement is incorrect. Unless I am misunderstanding your comment, you for example believe if you qualified with a Glock 22 (.40 Cal) that LEOSA (HR218) limits you to only lawfully carry that Glock 22 in a .40 caliber configuration. If so, you are mistaken.

      The actual law specifies types as either handgun or rifle. Meaning – if you officially qualify with ANY handgun in ANY caliber, you then are authorized under the ACT to conceal carry ANY handgun in ANY caliber in ANY state. Effectively this allows you to change to any handgun type you own without limitation.

      If however you officially qualify with ANY rifle in ANY caliber, you then are authorized under the ACT to conceal carry ANY rifle in ANY caliber in ANY state. Effectively this allows you to change to any rifle type you own without limitation.

      And finally, if you qualify annually with both a handgun and a rifle, then ALL the rules above apply for both types of carry.

      I hope this helps clarify that your North Carolina CCP is actually limited to only reciprocating CCP states, whereas HR218 guarantees carry in ALL 50 states.

    7. My problem with LEOSHA as I see it is that you must carry an ID from your agency and qualify with your agency annually. However, in the area where I live, NW Wisconsin. the Sheriff refuses to issue retired deputy ID cards or cooperate in any way. The area is very liberal in some ways and they are anti-guns except for active officers. I have a state CCW permit to get around this refusal but I wish there was an addition to the law requiring them to give ID to honorably retired officers.
      Has anyone else experienced this and has anyone successfully dealt with it?

    8. @ JR: Unfortunately LEOSA does not currently include verbiage with statutory authority to compel agencies to issue certification cards.

      Given your previous department is one that does not issue, I would recommend you inquire around to join any active movements or FOP type organizations that may be attempting to put pressure on your agency.

      You may even wish to start a group of your own and collect signatures for a petition from other retired deputies. Some officers have discovered that some instructors are issuing certs to a select few higher ups only. If you can prove this, it may be just the leverage you need to get them to start issuing to all officers.

      As for your annual course of fire, retirees don’t usually certify with their agency. You must bear this cost on your own, but each state is aware of LEOSA and usually provides additional statutory rules as to a list of third-party trainers the state has authorized for you to get the required cert each year.

      For your state of Wisconsin, I recommend you check out the following site for the latest rules in your area:

      https://wilenet.org/html/leosa/index.html

    9. I’ve never heard that private citizens have arrest authority. In fact, in my “retirement job” as an EMT, we were cautioned that we couldn’t tell anyone to “stay there” since it could be mistaken as arrest. So if I’m not in EMT uniform, can I arrest someone, but if in uniform, I can’t arrest anyone. I’m confused.

    10. Just remember that if you arrest someone and make a mistake YOU can be sued for everything you have and be charged with false imprisonment

    11. Private Citizens can make an arrest “Citizen’s Arrest” for felonies I.E. Murder, Rape, Mayhem, Robbery, Sodomy, Larceny, Arson, Manslaughter, Burglary and a breach of the peace. You had better be very caution though you’re on your own there are no protections that an on duty police officer has. IMHO someone’s life has to be in jeopardy.

    12. I think that, philosophically, the framers of our Constitution would disagree with one point: the Bill of Rights didn’t bestow any rights: it recognized, codified, and protected them.

    13. I agree with your view of the Constitution. However all US citizens have a God given right to life, liberty, and the pursuit of happiness, which is protected by our 2nd amendment right. Therefore I view all these state and local laws preventing open or concealed carry throughout the US as an infringement. The fact that LE or anyone has to annually qualify is an infringement. The fact that only LE can carry throughout is unequal protection of the law, and tyranny of the minority.

    14. @ Tom: You are absolutely 100% correct. And it is not just your view but a factual and innate right solidified by the Second Amendment as a Supreme Law of the Land that clearly states nothing may infringe upon ANYONE’S right to carry regardless of their status – be they civilian or law enforcement.

      So please forgive me as I ask that you understand that I am only speaking from the confines of the ignorant laws and current restrictive status we have all been forced to work within.

      As an LEA I am obligated to enforce such laws regardless of my personal differences and must do so until such time they are amended or abolished. Thank you for your patience.

  7. Will be watching what happens with the issue of gun registration in DC. seems like a back door method of denying legal carry. Is there a law forbidding carrying whenever certain officials or politicians are in the area? If so, that could significantly effect the practicality of legal concealed carry!

    1. I think those laws should be removed from DC books. Politicians and Foriegn Dignitaries are well protected by Secret Service and Diplomatic Protective Services who have tech and man power to see threats coming from so far off it’s breath taking truly and banning these guns anywhere on the Streets during these appearances is extreme.

      Now when they establish their temporary Blue Curtain Zones on certain campuses and in certain locations, like would be seen for those waiting to greet the President as he gets off Air Force One or in a particular Federal Building where they might be at the moment, everyone can see the Security Presence and cordoned off area, so just don’t enter if you are carrying. Choose to put your Hand Gun in your car while you go in.

      If you are in a Resraunt and a Protective Service (choose your acronym) enters as a prelude to a special visitor, I’m sure they will ask for any who are carrying to leave for the duration of say the special persons Dinner out. So you will be notified. I see it really hard to walk accidentally into one of these areas and subsequently get in trouble, however all things are possible.

      They have thermals and they see thru your clothing anyway revealing every thing that radiates in your body heat in your pockets. And my experience once they required you keep your hands in view at all times.

      This is tricky for sure how to weigh protection and rights in balance.

  8. @ sam: For the moment no one is legal to carry at all. Allow me to explain; right after the verdict the Judge did not issue a stay on his ruling so it went into effect immediately which technically allowed anyone in D.C. to instantly carry open or concealed legally.

    However, shortly thereafter (about 4 days) the city complained and asked the Judge for a 180 day stay in order to provide them time to come up with a permitting process. The Judge only gave the city 90 days instead. So unfortunately, for the next 90 days it is still illegal to carry at all.

    Thereafter, everyone that wishes to carry will have to apply for a permit under whatever harebrained scheme the city devises.

    Now to answer your question about carry types; notwithstanding limits created by new permits, nothing in the Judge’s ruling distinguishes a difference between open or concealed carry. So until the rules are established, we should assume a citizen will have a right to both open and conceal carry.

    As for your second question; the entire premise of this Judge’s decision was based on a question of law in regard to a previous denial by D.C. to allow defensive carry outside one’s home. Since this Judge ruled in favor of allowing citizens to now carry outside the home, it must be assumed the intent is for the gun to be loaded. So the answer is ‘YES’ the gun can be loaded.

    Regardless, rather than reinvent the wheel, most cities and states generally adopt rules that are already in place in other cities. And given they were only given 90 days to concoct a permitting scheme, more than likely they will copy Los Angeles which means no one gets a permit anyway. So back to the courts we go.

  9. Great comments from all. Although this is a great step in the proper direction, we’ve all still got a long road ahead.

    Most of today’s public is consistent of low information voters indoctrinated at liberal universities. We need to get ALL people more engaged. Not necessarily converted. Just properly informed.

    Good case and point:As per our US Constitution, all males age 17 to 45 are automatically part of the un-uniformed militia. Why then must you be 18 or 21 in some states to purchase ammo? Shouldn’t THAT constitute “infringement” on the 2nd ammendment? After all, guns don’t work without bullets. Without them, you’ve got a club.

    It will be those things that need to be looked to for progress of our society being restored back to what it was meant to be; a free republic in which the government fears the people rather than trying to control them.

  10. The proviso that the handgun be registered isn’t part of the court decision but of the DC police chief’s order to DC police officers. It only applies to DC residents.

  11. How will they define carrying lawfully “registered” handguns, when the majority of our states don’t require registration?
    If they ever do clarify this mess and allow concealed/open carry, watch another city where the crime rate drops!

  12. THANKS “G-MAN” for 100% correct information on LEOSA….I just completed the annual qualifications and my instructor mentioned these cases and he is one of the top instructors in our state.
    LEOSA TRUMPS A ignorant GOVERNOR and his minions.
    Then i would sue the tar out of them.
    Bottom line….get your ducks in a row before you go

    1. Your instructor would be wrong. Federal law does not trump states rights. If you are out of your jurisdiction you have zero law enforcement authority. And they can pass whatever local laws they wish.

  13. With no voting representation in congress and little to no say in the actual budget of the city itself, DC is very much a political gulag, if not a colony. All things considered, I’d much rather have a voice in congress and some say where my tax money is being spent. That whole “No Taxation Without Representation” thing is still alive here.

  14. Yet to be challenged, again. Is the NYC’s ultra restrictive ban. They even refuse to recognize the federal right to carry granted to retired LEO’s and also active non NYPD officers who are off duty. Of course the mayor has his armed protection, as. Does Sharpton & all the “Special-People”, just not Joe and Jane Six-Pack.

    1. @ George Dean: That would be incorrect sir. Federal law trumps any state or local legislation. Under the Federal Law Enforcement Officers Safety Act (LEOSA), I am legal to carry in ANY state including New York which of course encompasses the city of New York and there is not a thing they can do to stop me.

      As for -“Yet to be challenged…”, it has in fact been challenged and a precedent set into case law. An especially distant affiliation with law enforcement was still able to pass muster I might add.

      The case involved a construction worker arrested in NYC for possession of a gun but was able to force the charges to be dropped merely because he was a reserve Pennsylvania State Constable in his spare time. Nevertheless, he met the definition of a peace officer as defined by federal law and all charges had to be dismissed.

      The law has even gone so far as to rule on behalf of a Coast Guard Officer; and a more recent 2013 amendment to the law now includes all former and current military police and grandfathers all of them as far back as their record permits as long as they can prove 10 or more years in a law enforcement career field.

    2. I HAVE TRIED TO GET A CCP IN LOSANGELES. YOU HAVE TO GO TO THE LA SHERIFSSTATION AND GET THE FORMS. THEY DENIED ME THE RIGTH TO EVEN FILE. I HAVE CERIFICTIONS IN FIREARMS TRAINING ABD HAND GUN RETINTION AND PERSONAL PERTECTION. THEY STILL DENIED ME. OTHER COUNTY’S DOWN SOUTH HAVE GIVEN OUT CCP’S. NOT IN THE BEACH AREA’S. I TALKED WITH A LAWYER AND HE TOLD ME THEY HAVE TO GIVE YOU A FORM . THE POLICE HERE ARE NAZI’S. I’M ALSO DISABLED AND 62 YEARS OLD WITH MORE EXSPREANCE IN FIREARMS THAN ANY COP. SO THEY WON’T LET ME CARRY LEGALLY THEN THE SECOND AMENDMENT IS MY CCP.

    3. Respectfully, if your applications had as many errors as this posting it may have had a very negative influence on your request.

    4. You couldn’t be more wrong. Federal law is not valid off federal property. The 10th amendment guarantees to the states all power not listed in Article 1 Section 8.

  15. I really am enjoying this. Immediately upon hearing of this remarkable decision I recalled a prepper book I once read about how to cache weapons, etc., and one of the places the author used as an example where he himself would cache a handgun was in DC. It seems this was in the late 60(s) or 70(s) where folks were already getting robbed outside of coffee shops. He lived far outside of DC but would cache in the flower beds of a hotel for whenever he traveled there on business. Big risk he took but that is the national conditions we allowed to happen. Yes … we need national concealed / open carry, but better yet the Constitutional carry our founding fathers originally intended we all have.

  16. As an LEA I am lawfully able to carry concealed in every state and the D.C. regardless of any state laws, but it is good to know the public may now do so in D.C. even when visiting from another state or just passing through.

    I quite appreciate the Judge being so specific in his ruling as to address reciprocity between other states concealed carry permits.

    It is a disgrace however, that it took so long for this Judge to rule on this case. Even worse is that there was ever a ban to begin with. Especially when we already have the God given right to bear arms.

    It makes it just that much more degrading that free people are forced to go through this process when there is already a Constitutional standard that guarantees this right. What a waste of taxpayer money and quite possibly human lives in the interim.

    But might I add, all of this makes the victory so much sweeter when we are finally able to stick it to the freaking liberal anti-gun retards.

    1. “But might I add, all of this makes the victory so much sweeter when we are finally able to stick it to the freaking liberal anti-gun retards”

      — AMEN to that brother! In the 19 years I worked until I had to take a duty disability retirement I witnessed the most outrageous behavior more from the anti-gun nuts than from anyone who was carrying.
      — I had my chestnuts pulled out of the fire several times by ordinary citizens who saw a Deputy in trouble and came running to my assistance. That assistance is damned important when you work alone and your average back up is 30 to 45 minutes away. Far be it from any of the libtards to come out to help though. All they are good for is the delivery of a lot of hot air.

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