D.C. just doesn’t seem to get it. Once again, after their firearm law was invalidated, they have proposed a bill that attempts to skirt the ruling. The Washington Post reports on the latest efforts to make it impossible to carry a firearm outside the home.
D.C. gun owners could begin applying to carry concealed weapons within weeks under emergency legislation announced Wednesday in response to a federal judge’s ruling in July that the city’s firearms law was unconstitutional.
Mayor Vincent C. Gray (D), accompanied by public safety officials and D.C. Council leaders, remarked on the urgency of the situation at a news conference held to unveil the proposed regulations.
“The court’s actions require a swift and unified response,” Gray said at the news conference, adding that the emergency legislation — which includes permit and testing requirements — would “ensure the continued safety” of District residents.
Unfortunately, their proposal is constitutionally problematic.
First, they have modeled their statute after “May Issue” permitting regimes in New York and elsewhere.
The bill, modeled on laws enacted in New York, New Jersey and Maryland, will allow District residents who own registered handguns and nonresidents who have state-issued gun-carrying licenses to apply to D.C. police for permits. …
D.C. Police Chief Cathy L. Lanier would issue permits to carry weapons under the new regulations, and applicants would have to demonstrate that they require a firearm because of a specific danger.
The legislation would reinstate a test for carrying a gun that existed for many years under a law Congress approved in 1931. That law allowed the District’s police chief to issue a license if the applicant had “good reason to fear injury” and was a “suitable person” to be licensed.
The only problem, is that the district court’s analysis in Palmer specifically rejects this type of registration scheme. Judge Scullin invalidated the District of Columbia’s ban on conceal carry of firearms. As I noted at the time, Scullin “effectively parrots the 9th Circuit’s decision in Peruta.” The Peruta decision from the 9th invalidated a “May Issue” conceal carry permit–similar to the one proposed here–that vested broad discretion in the government to grant the permits. If D.C. attempts to enact the very type of law that Peruta invalidated, it isn’t hard to imagine what happens next. Or, they plan to let the D.C. Circuit handle this.
In any event, I haven’t seen the specific language of the statute, but who is a “suitable person” seems awfully vague. This seems to go far above and beyond passing criminal background checks, and gives the Sheriff a subjective judgment that is almost absolute. Plus, requiring a person to show he is in danger doesn’t mean what you think it means. They will likely have to show that nothing but a gun–including the wonderful Metro PD–will save them. These permits will not be forthcoming.
As an aside, the status of Peruta is in a weird holding pattern, as the San Diego Sheriff’s Department has decided not to appeal, but California AG Kamal Harris–who was not a party in interest below–has intervened for rehearing en banc. As I understand it, that petition is still pending.
Second, the bill imposes a Second Amendment buffer zone within 1,000 feet “movement of dignitaries.”
The proposal would establish a 1,000-foot no-carry zone around events involving the movement of dignitaries, such as presidential motorcades, and some other large-scale events. To be arrested and charged under that provision, however, a licensed gun owner would have to be given notice of the law by an officer and subsequently fail to leave the no-carry zone.
I blogged about a similar proposed federal law in January 2011, in the wake of the shooting of Rep. Gabby Giffords, that would “make it illegal to knowingly carry a gun within a 1,000 feet of certain high-profile government officials.”
For those of you who don’t spend a lot of time in D.C., you are always within 1,000 feet of some moving dignitary (or at least someone with an inflated ego who thinks he or she is a dignitary). No humble brag, but this morning I walked past two U.S. Senators. This stuff happens all the time. The right to bear arms would effectively be vitiated whenever a member of Congress is nearby. And where is a person supposed to go? Deposit his gun somewhere? Run away? What if you’re stuck in a motorcade, where the dignitary comes to you! This has serious freedom of movement concerns, above and beyond the Second Amendment. We aren’t just talking about banning guns in sensitive places, but banning carry on sidewalks in public places. And what if you live near a “dignitary”? This law is absurd, especially in the hubristic place like the District of Columbia.
Third–and again I haven’t seen the text of the bill–but it would seem to bar anyone who has suffered any “mental illness.” Not just a mental illness that designates someone as dangerous, but any “mental illness.”
Under the bill’s provisions, applicants could not have suffered a mental illness — or any other condition that might make them a risk — for at least five years before seeking the licence.
So a person who suffered from treatable depression, though medicated and with a clean bill of health, would not be able to exercise the Second Amendment right? This can’t be the correct standard. I’ll hold judgment till I see the exact text.
Judge Scullin will hold a hearing on October 17 to consider the new law. I don’t think he will be satisfied by this effort to skirt his ruling:
On Wednesday, Scullin said he would hear arguments Oct. 17 on whether to reconsider his ruling or extend the stay.
Update: The text of the bill is here.
Here is the key “May Issue” language:
The Chief may, upon the application of any person having a bona fide residence or or place of business within the United States and a license to carry a pistol concealed upon his or her person issued by the lawful authorities of any State or subdivision of the United States, issue a license to such person to carry a pistol concealed upon his or her person within the District of Columbia for not more than 2 years from the date of issue, if it appears that the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol, and that he or she is a suitable person to be so licensed.
First, the word “suitable” (as I suspected) is not defined, so it leaves all discretion with the Chief. Note the “and” before the suitable clause. Also, you need not only a reason to fear injury, but a “good” reason, suggesting that the Chief can assess how reasonable your fear is. Likewise, a “proper” reason is also in the sole discretion of the Chief.
Further, the Chief can limit the reach of the permit:
For any person issued a license pursuant to subsections (a) or (b) of this section, or renewed pursuant to section 6b, the Chief may limit the geographic area, circumstances, or times of the day, week, month, or year in which the license is effective, and may revoke the license for good cause.
The phrase “circumstances” is also not defined. It’s unclear what kind of conditions could be attached to the permit.
The Chief will be able to define all of the terms in the regulation, with a very narrow reach:
“(A) Demonstrated a good reason to fear injury to his or her person, which shall at a minimum require a showing of a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks which demonstrate a special danger to the applicant’s life;
“(B) Demonstrated any other proper reason for carrying a concealed pistol, which shall at a minimum include types of employment that require the handling of cash or other valuable objects that may be transported upon the person of the applicant; and
“(C) Demonstrated the applicant’s suitability to carry a concealed pistol, which shall at a minimum include evidence that the applicant meets the requirements of section 6a of this act;
Next, a denial of a permit is appealed to the “Concealed Pistol Licensing Review Board.” The Board will consist of a wide range of D.C. officials:
“(1) A mental health professional employed by the Department of Behavioral Health, appointed by the Mayor;
“(2) A representative from the Office of the Attorney General for the District of Columbia, appointed by the Attorney General;
“(3) A representative from the United States Attorney’s Office for the District of Columbia (USAO), appointed by the United States Attorney for the District of Columbia. If the USAO declines to provide a representative, the Mayor shall appoint a person who is a former employee of the USAO;
“(4) The Chief Judge of the Superior Court of the District of Columbia or his or her designee, or if the Chief Judge declines to serve or appoint a designee, a person appointed by the Mayor who is a retired judge of the Superior Court of the District of Columbia; and
“(5) One public member appointed by the Mayor, who shall be a current or former sworn officer of a law enforcement agency other than the Metropolitan Police Department.
These will be the people who decide your Second Amendment rights. I suspect Dick Heller will not be chosen under Category # 5 (he does work in law enforcement).
Denials of permits are channeled through 3-member panels, where the applicant has the burden. This is the exact opposite of the standard Judge Scullin imposed! The burden is on the government to explain why the permit is denied, not the other way around.
The rules shall include that the burden of production of evidence, and the burden of persuasion, at any hearing before the Board shall be upon the applicant or licensee that is challenging any denial of an application or renewal application or revocation of a license.
This is soooo much work to appeal a denial. And, I’m sure they will say that going to district court before appearing before this forum constitute a failure to exhaust remedies.
In addition to the standard list of public places, carrying is not permitted in any “public gathering” that involves a permit from the District, and a police officer notifies the person to leave.
This seems quite broad, as lots of events require permits in D.C.:
(8) Any public gathering or special event conducted on property open to the public that requires the issuance of a permit from the District or federal government or their agencies or instrumentalities, provided that no criminal penalty shall apply unless:
“(A) The licensee has been advised by a law enforcement officer that such a public gathering or special event is occurring; and
“(B) The licensee has been ordered by the law enforcement officer to leave the area of the special event or gathering until the licensee removes the pistol from his or her possession in compliance with applicable law and the licensee has not complied with the order;
Here is the buffer zone provision:
“(12) Within 1,000 feet, or other lesser distance designated by the Chief or his or her designee, when a dignitary or high ranking official of the United States or a state, local, or foreign government is under the protection of the Metropolitan Police Department, or other law enforcement agency assisting or working in concert with it, provided that no criminal penalty shall apply unless:
“(A) The licensee has been advised by a law enforcement officer that such a dignitary or official movement is occurring; and
“(B) The licensee has been ordered by the law enforcement officer to leave the area of the movement until the licensee removes the pistol from his or her possession in compliance with applicable law and the licensee has not complied with the order;
I’m not sure how this works. If a person is conceal carrying, why would a law enforcement officer advise someone to leave. If the person is stopped and frisked, there is already reasonable suspicion to detain them. So how would this function in practice? It may be mostly symbolic. But see my comments above–if taken literally, in D.C., you are always within 1,000 feet of some dignitary under protection by some law enforcement.
The rest of the regulations are so onerous, that carrying a firearm–assuming you get a permit–becomes really, really difficult in the District.
This is not going to fly under Judge Scullin’s opinion.