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By Matthew J. Bergstrom

This week the right to keep and bear arms advanced two steps and took one step back in Washington, DC. It’s part of what will be a long and winding process to comply with a court order forcing the District of Columbia to lift its 40 year ban on any carrying of firearms outside the home. On September 23, 2014, the DC Council begrudgingly, yet unanimously, voted for a bill allowing the concealed carry of firearms in the District by residents and nonresidents alike. Given a choice, Council members said they’d prefer banning firearms completely . . .

but in July, District Court Judge Frederick Scullin, Jr. declared DC’s ban on carrying unconstitutional in his Palmer vs. District of Columbia decision. In a classic example of obeying the letter of the law, but not its spirit, the bill awaiting the mayor’s signature will make carry permits extremely difficult to obtain.

These circumstances have not inspired confidence among gun owners, who tragically allowed themselves a brief moment of hopefulness following Palmer. Now, in a moment of clarity, these people are beginning to contemplate next steps. They want to apply for DC carry permits and they want to appeal any potential rejections. Based on current conditions, here’s my take on Second Amendment rights in the District:

  • The gray area is dangerous. Immediately after the federal judge’s ruling, DC police and DC federal prosecutors avoided prosecuting people carrying concealed guns because the law wasn’t clear. Although the DC ban on guns was still “on the books”, a federal judge ruled the law unconstitutional. With DC Council’s passage of the bill on Tuesday, the law is now clear: only those with a DC permit can carry a concealed firearm in the District. The bottom line: For now, keep your guns off the streets of DC because police and prosecutors will be back in action and prosecuting these types of cases eagerly.
  • All holstered up and nowhere to apply: The DC Police Chief has one month to implement the new law and create the permit procedure. So, for the next few weeks, there won’t even be a way to apply for a permit. The bottom line: Once created, the new permit procedure it will be most likely be found here: http://mpdc.dc.gov/
  • The target keeps moving: This bill that passed Tuesday will only be valid for ninety (90) days. The Council has several months to make permanent changes to the process and guidelines. The bottom line: If you apply for a permit under the temporary legislation, keep in mind that the law could change in a matter of days. Changes could make the process easier or more restrictive. Given the Council’s commentary when they passed the bill, the DC Police Chief will undoubtedly be primed to deny the bulk of applications that come her way, especially in the first few weeks.
  • No clear map to follow: Another issue facing gun owners is qualification. Even if they legitimately qualify for a DC concealed carry permit within the law’s narrow parameters, how will they prove that qualification? The law says that an applicant will have to show “good reason” that he or she needs a permit. For example, a “true threat to person or property” or another “proper reason” for carrying a firearm.  How will this “true threat” be proven? Will the Police Chief take the applicant’s word or will the applicant need a police report or other legal document to prove her case? DC officials have already said that living in a high crime neighborhood would not be a good enough reason to receive a permit. The bottom line: If you do choose to apply for a DC permit, make like a boy scout and be prepared. If you have a paper trail (police reports, documented threats, insurance reports) that prove your position, make sure you get your documents together before you apply. And one thing is for sure, the DC Police Chief is unlikely to think your Second Amendment rights qualify as “good reason”. Be ready to articulate your reasons with clarity and supporting evidence.
  • No one is talking about turn-around time: While it’s clear that the DC Police Chief and her team will be in the driver’s seat when deciding who gets permits and who doesn’t, there is no indication of how long the permit review and approval process will take. The bottom line: If you apply for a permit under the temporary law, there’s a chance the law will change before you get approved for or even denied or your permit. Additionally, there could be a waiting period between re-applications.
  • A second bite at the apple: If you do get denied, there is an appeals process that will go to a five-member board. If you’re serious about obtaining a permit, this may be the time to call for legal help. Find an attorney familiar with gun laws who can help you swim through what will undoubtedly be a frustrating process. The bottom line: No one in the DC government wants this bill, so it is unlikely you will see a friendly face on the appeals panel. If you decide to appeal, make sure you have all of your ducks in a row and go in with guns blazing (pun intended).
  • Big brother is watching: Under “DC Home Rule”, residents of the District have the ability to govern themselves. But, thanks to James Madison, the Constitution states that Congress may “exercise exclusive Legislation in all Cases whatsoever” over the District. This means that Congress reviews all of DC’s laws and there is a 30-day waiting period until the law is put in place. More often, a Congressman or Senator tries to slide a funding block (a “rider”) into federal legislation that would affect daily happenings in DC, although almost always without success due to DC Congresswoman’s Eleanor Holmes Norton persistent and successful push for Congress to leave DC to its own devices. In this case, such interference would be welcome by gun owners since several federal lawmakers have tried to intervene to lift the ban. The bottom line: As recently as July, a Kentucky Congressman tried to quash the ban using federal law so don’t be surprised to see support from members of Congress who support gun rights. However, as per usual, Congresswoman Norton is gearing up to make sure that Congress lets the restrictive laws stay in place. Moreover, Congress has only overturned DC law three times in history so it’s unlikely, but not impossible, that Congress will save the day for gun owners.
  • There’s still hope: On October 17, both the city’s attorneys and Alan Gura, the attorney representing those challenging the bill, will appear again in court. The city will argue for Judge Scullin to reconsider his overturn of the ban and Gura will most likely take the opportunity to point out that, given the restrictiveness of the new legislation, the ban is technically still in place for all intents and purposes. The bottom line: The process is still in flux and can be modified by the court or the Council itself. The federal courts are split on whether restrictive permit processes like the one DC proposed are constitutional, so it’s anybody’s game. If you are a gun owner in the greater metropolitan DC area, DC resident or not, it’s time to prepare and make yourself heard. Shortly, there will be an opportunity to apply for a DC carry permit. It’s equally important to appeal a rejection of your application.

To reiterate, the DC carry law remains very uncertain, and gun owners throughout the greater DC metropolitan area, including nearby states, should begin preparing themselves for processing their applications and their appeals.

 

Matthew J. Bergstrom is an attorney who leads Arsenal Attorneys™ at their main offices in Virginia and Washington, DC. His law practice serves gun owners and the firearms industry nationwide. Mr. Bergstrom has previously written for The Truth About Guns™ on various legal issues, including the National Firearms Act and his experiences serving clients of the firm’s Arsenal Gun Trust™ services. Mr. Bergstrom is a member of the bars of Virginia and the District of Columbia.

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32 COMMENTS

  1. For a second I thought that was a tng klingon (tos for the win!!)

    Edit: Totally no offense intended btw, he looks like he has a stressful job………

  3. Basically, this law appears to spit in Judge Scullin’s eye. Given that he was handed this case by Chief Justice Roberts due to the foot-dragging of the original judge, I would expect Roberts to be less than pleased. A hearing at the SCOTUS level would not be a big surprise.

    • If the judge tries to force shall issue on DC, they will appeal, and the relevant court of appeals has been nicely packed recently. I don’t know much about the workings of our legal system, but it looks to me that this case won’t be reaching SCOTUS any time soon, and if it does, SCOTUS has not granted cert to any may issue cases that have come its way. The odds seem pretty long here.

    • Its not like regular DC citizens will be able to carry in the meantime with this law on the books if they don’t slap it down. I hope the judge takes it for the insult that it is and they go back to Constitutional carry in the capital.

    • It’s also a craphole for anything else remotely connected with Quality of Life.

      It is definitely, however, a national monument to selfishness, greed, and incompetence. I pity anyone who lives there.

  5. So in other words, we have another round of legal challenges to go thru:
    1) ~100 or so gun owners apply for a permit
    2) ~100 are denied at some part during the process.
    3) Go back to court, suing that the changes have not changed the intent of the ruling as the current system is the same as before: banned.

  6. Why would this be any less defendable by DC anti’s than in NY,NYC and NJ’s practice of May Issue?
    If May Issue IS somewhere, it can be anywhere by the logic employed by those states.
    DC is not being forced to a different standard are they? They are following other states precedent.

  7. Is it just me or is the continue reading link missing on a lot of posts? The only way I’m seeing all of the post is to click on the comment link and scroll to the top.

  8. Interesting- the point of Peruta v Gore, which was referenced in Palmer, was that the restrictions on the permitting process amounted to a de facto ban, which was unconstitutional. The DC Council seems to be deliberately requiring the same kinds of justifications- “prove you were threatened” vs just plain for “self defense” that Sheriff Gore did. We are still waiting for the final decision from the 9th on whether to allow CA AG Harris to intervene in Peruta, and to file en banc. If the answer is yes, no, then she can appeal. If the answer is no, no, then its over.

    I agree with one previous poster, it almost looks like the DC Council is basically spitting in Judge Scullin’s eye, and daring Gura to sue again. Does that mean it goes back to Scullin, or to a larger group selected from the DC court.

    IANAL nor does this article by the Mr Bergstome ( which is very helpful, thanks!) explain if that is part of the original case, or a separate action. If the latter, then the packing of the DC court by Dirty Harry, et al, takes on additional meaning in the gun rights national chess board, beyond the hoped for “save” for Obamacare in packing the court prior to rehearing the Halbig case.

    Correct?

  9. There will be a DC Council hearing on the permanent bill most likely some time in late October. It is important for gun owners in DC, Maryland and Virginia to turn out to this hearing and testify for the need for shall issue, especially people who have been victims of crime or who stopped an assault by using their firearm.

  10. I have a dream that one day, shall not be infringed will mean exactly what it says, everywhere in the country. The District just epitomizes everything that’s wrong with the immoral, unjust, and unconstitutional encroachment on that straightforward, plain-meaning directive.

  11. Good luck with this.
    This is a special part of the planet with it’s own rules. A 2 mile square area with trillions of dollars flowing through it.

    • The bad news is, it’s a ten mile square, not a two mile square. Or would be, except that the portion on the other side of the Potomac was given back to Virginia.

      I personally think that everything except the Mall area, the Capitol and the White House shouldbe given back to Maryland. So that the only places in DC would be where people don’t live (other than the white house). That should end all the whining about not being represented. (The amendment granting DC three electoral votes would have to be repealed as well.)

  13. Oh heck, just suspend the Constitution and Habeas Corpus and turn Washington DC into a giant Green Zone like in Baghdad. No one will know the difference!

  14. Matthew J. Bergstrom and two of his associates taught the Self-Defense Law class I took at the NRA Range. Good course, good people.

  15. I’ve said this before, but it bears repeating: the “or another proper reason” clause may very well be the DC permit applicant’s best friend.

    Here’s why: a reason cannot be both proper and improper, and it cannot be neither. A reason that is not proper is improper. Therefore, a reason that is not improper is proper, and therefore qualifies.

    Examples:
    An applicant wishes to apply for a permit so he can carry at work at the US Post Office. The reason is not proper; therefore it is improper.

    An applicant wishes to apply for a permit out of a general desire for self-defense. The reason is not improper (laws have long recognized the right to defend oneself). The DC Council may not like the reason! and it may not be a preferred reason, but since it cannot be both proper and improper, and it is not improper, the reason is proper.

    Proper is a binary quality, like valid. It’s a yes/no proposition.

    • Meh.

      More likely they’ll simply assert that self defense isn’t a proper reason. Since the asserter is the arbiter of whether you get the permit, you are (for the moment) stymied. You now get to go through the appeals process before a panel that will agree that self defense isn’t a proper reason.

      • This probably never has been said before in the history of language, but … To your “meh” I say: Peruta!

        • There’s a long way to go before Peruta becomes law of the land. It hasn’t even had any real effect in California, for that matter.. It’s still just a ruling by a different circuit court (thus: DC doesn’t have to pay attention to it) that may or may not be appealed en banc. Meanwhile, there’s nothing stopping the government from dragging its feet endlessly, passing new laws to replace old ones struck down, etc., since there’s no consequence to the politicians involved. Just for instance, this law blatantly disregards the ruling that does apply, but it will probably take half of forever to get it overturned.

  17. In the south, the courts have had to review and approve redistricting plans after it was ajudged there was a recurrent pattern of bias.

    We now have local goverment overtly make statements and take action to restrict 2 ammendment rights.

    Why not ask with the next chicago or dc case that the courts have to prospectively approve local gun ordinance changes since the goverments there have shown a pattern along the same lines?

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