By, George L. Lyon, Jr*
In a decision released yesterday, Senior Federal District Court Judge Frederick Scullin, preliminarily enjoined DC’s requirement that concealed pistol license applicants demonstrate a good reason to fear injury or show other proper reason to obtain a license to carry a concealed handgun in DC. The name of the case is Wrenn v. District of Columbia. It is important to understand what this ruling does and does not do. What the ruling does not do is end the case. A preliminary injunction is a ruling from a judge at an early stage of the proceeding that a litigant has made a strong case that he will ultimately prevail, that he will be irreparably injured if the injunction is not issued, that the defendant will not suffer irreparable injury from the injunction and that the public interest will benefit from issuance of the injunction. This four part test is somewhat flexible so that a very strong showing on one element of the test can compensate for a somewhat weaker showing on another element. In this case, Judge Scullin found, in line with his prior decision in Palmer v. District of Columbia, that the right to carry a handgun for self-protection is protected by the Second Amendment to the United States Constitution. (In the spirit of full disclosure, I was a plaintiff in the Palmer case.) He found that DC’s requirement that individuals demonstrate a good reason to fear injury or other “proper reason,” such as carrying large sums of money or other valuables, amounted to a burden on this right as applied to those persons who could not make such a demonstration. He was thus required to analyze whether this burden comported with the Second Amendment. In doing so he rejected DC’s argument that its restriction on carrying was longstanding of the type that the Supreme Court in the Heller case suggested were presumptively constitutional. Despite a number of laws touching on various aspects of firearms carry, he stated that DC had presented no historical evidence that the good cause requirement was longstanding. Furthermore, he agreed with plaintiffs that even if longstanding, the requirement amounts to a total ban on carry for the vast majority of law abiding citizens and thus impinges on the Second Amendment’s right to bear arms. Having made that determination, the court applied what it called “intermediate scrutiny” to evaluate whether DC had shown that the restriction on carry rights was substantially related to an “important governmental interest,” in this case preventing crime and protecting public safety. The court stated that DC had to show that it did not burden the right to carry more than necessary to further this important interest. The court held, however, that the District did not establish that its carry restriction reasonably related to its interest in preventing crime and protecting public safety. Thus, the court found that the plaintiffs were likely to prevail in the case. With respect to the requirement that plaintiffs suffer irreparable harm, the court found that the Second Amendment protects intangible and unquantifiable rights, similar to the First Amendment, and that denial of Second Amendment rights thus create harm for which damages cannot compensate the victims. The court therefore found that the plaintiffs would suffer irreparable injury from denial of the requested preliminary injunction. Conversely, the court found that DC had not shown it would suffer irreparable damage. It quoted DC Police Chief Cathy Lanier’s comment that law abiding citizens that register guns and follow the rules “are not our concern.” For similar reasons, the court found that the public interest favored granting the preliminary injunction rather than denying it. Judge Scullin’s opinion, while not perfect, is another important step toward full judicial recognition of the Second Amendment. But it will not be the last. You can expect DC to seek a stay of this decision. A stay is an order that holds the decision in abeyance. Judge Scullin could issue a stay himself, or DC could request the United States Court of Appeals for the DC Circuit to issue such a stay. And it is very likely DC will appeal the decision to the DC Circuit. In any event, the case will proceed before Judge Scullin on the request for a permanent injunction and DC will have the opportunity once again to justify its restriction on carry rights. So should you immediately go down to the DC gun control office and submit your application? That is a decision only you can make, but understand that we are likely years away from a carry law in the District of Columbia that comports with the Second Amendment. We will keep you advised on the course of this litigation and we stand ready to assist you both with the application procedure and with the required DC training should you wish to apply for a DC carry license.
* Mr. Lyon is a lawyer with Arsenal Attorneys and his professional biography can be found here.