Wednesday, 18 May 2016 00:00

Grace v. DC: Is the Second Amendment Staying Alive in the Nation's Capital?

By George L. Lyon, Jr., Arsenal Attorneys™

Tuesday’s Federal District Court decision in Grace v. District of Columbia, preliminarily enjoining enforcement of DC’s “good cause” requirement for issuance of a Concealed Pistol Carry License, is another encouraging decision from a Federal court upholding Second Amendment rights. However, it is not going to be the last word on the subject. This decision is relevant to Second Amendment jurisprudence as well as to individual gun owners desiring a DC carry permit, DC residents and non-residents alike.

Judge Richard Leon’s decision held that the right to carry a firearm in public for personal protection is a core component of the Second Amendment’s right of the people to keep and bear arms. As such, he analyzed DC’s “good cause” requirement under “strict scrutiny” the highest level of Constitutional means/ends review. His analysis found DC’s restrictive policy of only granting permits to persons who could show that they had received specific threats, been victims of stalking or violent crime, or who are required to carry large sums of cash or other valuable property for their employment to be unconstitutional.

Judge Leon acknowledged that DC has a compelling governmental interest in limiting violence and crime, but found that its chosen method to do so was vastly over-inclusive. Essentially, DC’s position is that public carriage of guns – even by law-abiding citizens – increases the risk of violence (a proposition that has little support in the social science literature) and that therefore it could limit carrying of guns to just the few people who could show a heightened need for self-defense distinct from the general population.

Judge Leon, however, held that it was impermissible to attempt to limit what he called the secondary effects of the exercise of the Constitutional right, by limiting the Constitutional right itself. Citing the Supreme Court’s opinion in District of Columbia v. Heller, he explained that the adoption of the Second Amendment took that policy choice off the menu. In other words, the city does not get to decide on a case by case basis whether the right to bear arms is really worth having.

The decision in the Grace case comes one day after a decision by the 9th Circuit U.S. Court of Appeals which held that a gun store could challenge an Alameda County California, zoning ordinance that restricted it from operating within 500 feet of a residential area. That decision found that the Second Amendment necessarily includes a right to sell firearms to the public, just as the First Amendment necessarily includes the right of a book store to sell books to the public. This 9th Circuit decision is of particular significance to DC because DC has a similar zoning ordinance that is likely unconstitutional.

Expect DC to ask Judge Richard Leon to stay his decision while the District appeals it to the United States Court of Appeals for the District of Columbia Circuit, and expect Judge Leon to refuse to stay his decision. However, DC will undoubtedly ask the DC Circuit for a stay, and if history is any lesson, the odds of the DC Circuit granting the stay pending appeal are substantial. So DC may not be a ‘shall issue’ jurisdiction any time soon.

Arsenal Attorneys™ provides consultations on applying for DC Pistol Carry Licenses, for DC residents and non-residents. If you are interested in exploring your options to obtain a carry license in DC, call our office at 703-291-3312.

Mr. Lyon is an attorney for Arsenal Attorneys™ and a Metropolitan Police Department certified Concealed Pistol Instructor. Mr. Lyon is also a Maryland State Police Certified Handgun Instructor.

Read 3260 times Last modified on Wednesday, 18 May 2016 17:06
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