Failure to Grant a Stay in D.C. Second Amendment Case

July 28th, 2014

Yesterday I blogged about the long-awaited decision in Palmer v. District of Columbia, where after 5 (!) years a federal district court invalidated the District’s total ban on carrying a firearm outside the home. In something of a surprise, the court did not stay its ruling pending appeal. It immediately enjoined the District from enforcing the law.

Scullin, a senior U.S. District Court judge who normally sits in the Northern District of New York, wrote in his ruling that he was stopping enforcement of the law “unless and until” the city adopted a constitutionally valid licensing mechanism.

“The decision is in effect, unless and until the court stays its decision,” said Alan Gura, the lawyer who represents the group challenging the ban.

“This is now a decision that the city is required to follow — the idea that the city can prohibit absolutely the exercise of a constitutional right for all people at all times, that was struck down. That’s just not going to fly.”

As you may imagine, this ruling came out of left (right?) field, and took the District by utter surprise, on a Saturday no less. As a result, the District scrambled, and will seek a stay:

The District’s attorney general’s office was “studying the ruling and considering our options,” spokesman Ted Gest said. In the meantime, city attorneys will seek to block the ruling from taking immediate effect.

“The District of Columbia will seek a stay of the judge’s order regarding the D.C. gun-carrying law pending a potential appeal,” Mr. Gest said in a statement.

But, until a stay is obtained, the District was not able to enforce its own law. Until a stay is granted, the District was forced to allow people to carry firearms outside the home. In a memo obtained by Alan Gura, the Metropolitan Police Department issued this interim guidance. In short, it seems that any pistol that was registered in the District of Columbia can now be carried outside the home. There is no permitting or licensing process in place.

WaPo reports:

In an order approved by Police Chief Cathy L. Lanier, police were 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.

The number of registered pistols is thought to be low.

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.

Meanwhile, Ted Gest, the spokesman for the D.C. attorney general’s office, which defended the handgun ban in court, said it will “be seeking a stay shortly,” so the order by U.S. District Judge Frederick J. Scullin Jr. may not be in effect for long.

“Its time of effectiveness could be very short,” Gest said.

For a short period, the District will have one of the most liberal carry laws in the country! But not really. Registering a firearm in the first place is a Herculean task, that requires countless background checks and hurdles to jump. So anyone fortunate enough to have their license granted would probably meet any more draconian standard for carrying. And no, this ruling does not apply to carrying long-guns, so there will be no back-strapped AR-15s at Target.

I’d like to bring this topic back to my many posts on the failure of judges to stay rulings following the invalidation of bans of same-sex marriage. In the interregnum between the decision, and the stay from a higher court, many clerks began issuing marriage licenses of dubious provenance. Here, until the district court, or the D.C. Circuit steps in, people will be able to carry their guns outside their homes.

In both cases, a fundamental constitutional right was found to be violated, and the court was not willing to wait to give the government a chance to defend its law.

It may surprise you that I think the district court should have at least stayed the ruling to let the government appeal the ruling–especially after a five-year wait. This would avoid the chaos and scrambling of having to issue interim policies at the last minute. I say this as a supporter of the decision, and more broadly of a constitutional right to bear arms outside the home. But the rule of law demands more. When finding a law unconstitutional, the court should act to sustain the ex ante status quo.