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“The Second Amendment right to bear arms includes the right to carry functional, loaded handguns in public areas for the purpose of self-defense. This right, like others, is subject to some degree of regulation, but its status as a right precludes the government from regulating it out of existence or forcing individuals to prove their entitlement to its exercise.” So reads a lawsuit filed today by Alan Gura and the Second Amendment Foundation against the District of Columbia. As wamu.org reports, “The city’s “may-issue” permitting scheme was passed by the D.C. Council last September after a federal judge overturned the city’s longstanding ban on carrying handguns in public.”  . . .

But as we noted earlier, since DC began taking applications, they’ve only approved eight of sixty-six applications.

The lawsuit says that the city’s requirements that applicants prove they face a specific threat or work in an industry where they have to carry large amounts of cash or other valuables in order to get concealed carry permits are unconstitutional.

“Individuals cannot be required to prove a ‘good reason’ or ‘other proper reason’ for the exercise of fundamental constitutional rights, including the right to keep and bear arms,” (the lawsuit) says.

As the Heller and McDonald suits have show, it’s possible to force anti-gun localities to recognize citizens’ Second Amendment rights, even if they’ve made the decision only to go kicking and screaming. While we’re not attorneys (and happier about that, we could not be) the latest challenge to D.C.’s hoplophobic policies would seem to be destined for success. Stay tuned.

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64 COMMENTS

  4. While we’re not attorneys (and happier about that, we could not be) the latest challenge to D.C.’s hoplophobic policies would seem to be destined for success.

    The Second Circuit in Kachalsky held that proof of need is a valid and constitutional requirement. So maybe this case is not destined for success, and you’re not the only one who’s glad that you’re not an attorney. The people who might have been your clients should be thrilled.

    • If the government required you to submit an application for permission to freedom of speech, only if you could provide a ‘good reason’?

      There are rights that should never require prior approval and should only allow punishment after their misuse, and not before. Removing the right of self defense is a prior punishment, as would be establishing free speech permits.

      • No one here disagrees; but the problem is that the three main east coast Circuit Court of Appeals (2, 3, 4) have said otherwise, and the Supreme Court denied review in all of them. The Ninth Circuit’s stellar decision in Peruta–which is not yet final and is awaiting the court’s vote in the near future on the applications for en banc review –is the only voice of reason in the jurisdictions in which this issue can be raised.

        • Peruta is garbage also. It says that a permit may be required and that a state may ban open or concealed carry but not both. Historico-legally, the right to bear arms does not apply to concealed carry but to open carry, and that unlicensed.

          I’m of the opinion that it means just what it says and that it can’t be infringed.

        • @Mark N., to me the definitive pro-carry opinion was authored by Posner in the 7th Circuit’s Moore v. Madigan case. Which was amazing to me because Posner despises guns and is no friend of 2A.

      • Screw freedom of speech; I’d like to see someone try to demand “good cause” and a permit to exercise the right to freedom of religion.

        • Freedom of religion could be a better example. The state MAY require me to get a permit to build a church. It may stipulate that it have fire alarms. It may not deny my permit because i do not show “need” to build the church.

    • I was thinking that Gura was fiendishly clever … starting this case from the outset knowing that D.C. would implement a may-issue (bordering on no-issue) system which he could then ultimately appeal to the U.S. Supreme Court.

      And then Ralph had to rain on my parade and remind me of (a) the split in the Circuit Courts regarding “just cause” may-issue and (b) that the U.S. Supreme Court will simply refuse to hear any cases about “just cause” may-issue concealed carry.

      The fact that the U.S. Supreme Court tolerates such a horrific split in the Circuit Courts of Appeal (not to mention all of the infringements on the Second Amendment) demonstrates plainly that the U.S. Supreme Court is not honorable.

      • I just heard Justice Kagan give a speech today where she said the Court virtually always grants cert for cases where there are big splits in the Circuits. We’ll see what happens if this case makes its way up.

        • One or more cases have already made their way to the U.S. Supreme Court since the split in the Circuits and the U.S. Supreme Court refused to hear it/them.

      • The fact that they allow no knock warrants, allow for a drug dog (that can’t be sworn in court to tell the truth and nothing but the truth), to allow for a warrantless search of you private vehicle, allow the NDAA and approved Obama care shows the tyrants in black robes don’t usually follow the constitution.

      • Until Peruta, there was no true “split.” Moore v. Madison did not reach the issue of may issue/shall issue because Illinois was a no issue state. By the time Peruta came along, the Supremes had denied cert in the others. Peruta may provide an opportuinty for review–if it ever gets finished in the Ninth Circuit.

        Here’s a couple of comments to further confuse the issue. If the Ninth grants review and reverses, then Peruta will appeal. If the decision is affirmed, whether because review is denied or review is granted and the decision affirmed, then the appealing party will most likely be Sheriff Prieto (Yolo County) in Richards v. Prieto, because Sheriff Gore (San Diego County) has bowed out of Peruta; and, if intervention by AG Harris is denied, as I think likely, there will be no one to appeal from a decision in favor of plaintiffs.

        One last comment. If review in Peruta is denied, we will be out of the woods in a few weeks, subject to Supreme Court review. If en banc review is granted, the case will remain pending in the Ninth Circuit for at least 18 months to two years.

        • Mark N.

          That is a fascinating observation that the 7th Circuit Moore v. Madigan decision was about complete prohibition rather than may-issue versus shall-issue.

          Suppose the 9th Circuit situation stands causing a true split in the Circuits for the first time. Can the U.S. Supreme Court, from a procedural standpoint, simply issue a ruling to correct the split even if no one from the 9th Circuit petitions the Supremes?

      • @uncommon_sense, I think that SCOTUS would like to be out of the 2A business for a while. Why? Kennedy. He’s the weak sister. The four 2A justices are afraid that Kennedy will flip on 2A, and the anti-2A justices are afraid he won’t.

        • I got the impression that was why Scotus didnt take up Drake.

          SCOTUS also supposedly waits for enough cases to “percolate up” to take on a case that sets a definitive decision.

          Peruta may not be it, due to the defects in the CA AGs sketchy case for intervention, and failure to get involved in Dec 2012 orals, when asked. Note also that Richards vs Prieto (Yolo County) and Baker (Hawaii) were heard by the same 3 judge panel, and their decsion was “see Peruta”.

          What is interesting is that while the 9th hasnt published their decision on whether to grant or deny intervention, or grant or deny the sua sponte call for en banc review, the 9th HAS lifted the stay on Richards request to appeal the 3 judge decision to an enbanc review by the 9th.

          More speculation on why at calguns.net and mdshooters.net by a couple of knowledgeable posters and attorneys.

      • demonstrates plainly that the U.S. Supreme Court is not honorable.

        It hasn’t been honorable since Chief Justice John Marshall’s abomination in 1803. It should have been corrected or abolished then.

    • I’ll just make a blanket statement to all lawyers and judges who interpret “shall not be infringed” as “it’s totally fine if we deny virtually every avenue of the right to keep and bear arms.” They’ll be pleased to have you thrown in jail for “interpreting” the 2A to actually be what it clearly say it is. Evil is alive and well, and it permeates their statist concept of law and control.

        • If only a) many more law enforcement officers felt this way, b) they refused to enforce illegal (constitution violating) laws, and c) make it publicly known (within their jurisdictions) that they would actively refuse to enforce such laws.

          If those conditions were met, then ridiculousness like the NFA and such really could just end up going away.

  7. Whether or not a particular panel of judges will uphold or strike down infringements on the Second Amendment is basically a lottery at this point. Draw the right names for the panel and the Court strikes down the infringement. Draw the wrong names and the Court upholds the infringement.

    How can we view such courts as legitimate?

        • First we k!ll all the lawyers…

          Starting with Alan Gura. Right, d!ckhead?

          It never ceases to amaze me that all of you “kill the lawyers” types are the first to call me when something goes sideways in your lives.

          Maybe next time I’ll just tell you to drop dead.

        • @Ralph
          If lawyers and politicians hadn’t created the legal nightmare we have to navigate in our daily lives (3 felonies a day, etc), I’d be happy to represent myself in court if I had to. But thanks to the majority of lawyers who benefit from all the convoluted laws being passed day after day, people have no choice but to call on you for help. For all I know, you may be one of the good guys, as is Gura. But that doesn’t change the fact that the majority of lawyers are the problem. I’d like to see the day when they’re working on repealing and simplifying our current laws. Oh what’s that? That’s never gonna happen? Duh, of course not. And that’s the problem.

      • “What do you propose is an equitable solution then?”

        That the justices follow the Constitution and forget “politics.” How’s that for an “equitable solution?”

        • Correct the error of Marbury v. Madison and then allow the issue to come to its natural crisis within the states. Then, if the People of a given state love their freedom enough, they will have their right to keep and bear arms uninfringed.

        • ““What do you propose is an equitable solution then?”

          That the justices follow the Constitution and forget “politics.””

          No argument on that. Any constructive ideas on a road map?

          Or does the ‘Tree of Liberty” need a drink?

  8. I work in an industry that requires me to carry valuables: I’m a father, my children are priceless.

    • My children are grown. At this stage, I consider my life and my individual Liberty priceless to me. These are two of the most precious things that I hold dear. If someone takes these things from me, they cannot be restored.

      Good cause? Yes! I’m free and alive. I intend to stay that way.

  10. There is already a circuit split over the level of scrutiny required for 2nd Amendment cases. The 6th Circuit applied strict scrutiny in the “Tyler” case in December, other circuits have applied intermediate scrutiny.

    • Peruta put the activist interpretation of the role of judges to bed, with the explanation of Heller, McDonald and the constitutional scholarship since on the Founders original intent.

      And the arguments in the Peruta response to en banc and intervention request points out that the court decided that it was either it IS constitutional, or the restrictions on any realistic carry WAS NOT constitutional.

      In other words, there is no real rationale for any intermediate step for scrutiny.
      IOW, the Right Shall Not Be Infringed.

      Peruta/Richards or SAF vs DC is going to argue and SCOTUS will address it, once and for all.

    • DE facto handgun ownership bans existed and were upheld in juristictions other than DC before Heller

  12. D.C. and other civil rights black holes are always going to be dragged kicking and screaming into the 21st century away from the classist, racist, and sexist roots of their so-called “Progressive” policies.

  13. Smart wording with not arguing all regulations are bad, but that this doesn’t mean you can regulate the item out of usage.

  14. Carry permits should be like a drivers license. I drive into another state I’m not an instant felon.
    I carry my firearm into another state (most) and all of a sudden I’m a criminal.

    If they pulled the same BS with a drivers license that they do with permits, the public would rally together and put an end to it.

    But then again, guns kill people and cars don’t.

    :/

  15. No one should need a gun permit in America.

    Permits are infringements.

    All 50 states should be the same.

    • The Supreme Court of the United States of America shouldn’t be wielding power not delegated to it by the Constitution of the United States of America. However, if they are intending on swinging that usurped sword, they ought to do it properly. Even under their skewed view of the matter, the Second Amendment applies like all of the rest. It ought to be a no-brainer; coast to coast constitutional carry. But no. The courts throw the People scraps from their table. Making us beg for each stolen morsel. Perhaps one day the People will treat them as the thieves they are.

  16. This right, like others, is subject to some degree of regulation,

    “This right, like others (except that it’s the only one that clearly states shall not be infringed) is subject to some degree of regulation (can be infringed),”

    So, the right that shall not be infringed can be infringed.

    I realize that there are some games that must be played with the Court from time to time so I’m not dissing the filing. It’s just that I’m oft struck by the mental gymnastics required. That which shall not be infringed can be infringed but please infringe less. smh

    • See, John, what you fail to understand is that the Framers wrote “…except when we feel like it” in invisible ink right after “shall not be infringed.” When you become a federal judge they issue you the secret goggles that let you read the ink.

  17. Thank you SAF! I especially like that since they are organized as a 501(c)3 charitable organization, my contributions are tax deductible. It gives me a special feeling to know that the federal government is subsidizing my support for the SAF.

  18. I think that the crux of this – that one must “provide proof of the need for the human right of self defense” in DC, the cesspool of the Potomac – is completely outrageous and preposterous.

    Bravo, Mr. Gura!

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