By Tanya K. Metaksa
The opening paragraph of Brian Wrenn, et al., v. District of Columbia, et al. (No. 16-7025) summarizes the plight of gun owners and the Right-to-Carry in our nation’s capital. “These cases involve the District’s third major attempt in forty years …In 1976, the District banned all handgun possession. When that ban was struck down in Heller I, the Council followed it with a ban on carrying (2009). And when that was struck down in Palmer v. District of Columbia, (2014), the Council responded with the law challenged here, which confines carrying a handgun in public to those with a special need for self-defense.”
DC government not only passed new ordinances under judicial pressure, but during the process it also stalled, delayed and attempted to postpone the inevitable—its citizens’ right to self-defense. Martin Luther King’s saying, a right delayed is a right denied, is an accurate description.
Gun laws and court cases regarding those laws were almost non-existent during the first 150 years of our countries’ existence. The first national gun law, the National Firearms Act of 1934 (NFA), was the result of the rampant crime promoted by gangs during the prohibition era as well as an attempted assassination of President Franklin Delano Roosevelt in 1933. The next modification was the Gun Control Act of 1968 (GCA68).
After the passage of GCA68 gun control laws were introduced in states and cities and one of those cities was our nation’s capital. Although the US Constitution gives the US Congress exclusive jurisdiction over DC, Congress granted DC the power in 1973 to govern its own affairs. In 1976 the newly established DC Council voted 12-1 to ban the possession of handguns to DC residents and long guns in homes had to be disassembled.
It wasn’t until 27 years later, in 2003, that six DC residents, several of whom were gay, challenged the city’s handgun ban in Parker v. District of Columbia. A year later Judge Sullivan, a Clinton appointee, ruled against the plaintiffs. The plaintiffs’ attorney, Alan Gura, appealed Sullivan’s decision to the US Court of Appeals, District of Columbia Circuit (CA-DC). On March 9, 2007, the Court of Appeals threw out Judge Sullivan’s decision finding that banning guns in the home was unconstitutional. Dick Heller, the only plaintiff to have been denied a handgun permit, got legal standing and the lawsuit became Heller v. District of Columbia. The city appealed to the Supreme Court (SCOTUS) and on June 26, 2008, the first DC ban on handguns was abolished.
The DC government led by progressive Democrats, and guided by anti-self-defense sympathies, was not about to relinquish the status quo. Immediately after the Heller decision, they passed new gun ordinances that required registration, background checks, and a prohibition on carrying handguns in public. This time aggrieved citizens filed their lawsuits within months: Heller, Jordan and McVey v. DC (Heller II) on July 28, 2008, and Palmer et al. v. DC on Aug. 6, 2009.
In Heller II a three judge panel for the US Court of Appeals, District of Columbia Circuit ruled on Oct. 4, 2011, that the gun registration law violated the Second Amendment because it required guns be re-registered every three years, and registrants passing a firearms’ law test. Additional violations included the requirement for limiting registration to one handgun per month and the gun must be physically registered. Requirements for fingerprinting, photographing and bans on assault weapons and high capacity magazines were maintained. On Feb. 29, 2012, the DC City Council modified their firearms ordinances. Eliminating the unconstitutional parts they added very stringent requirements for registration and licensing. In 2012 Judge Urbina retired and the case was reassigned to Judge Boasberg.
For clarity the phase of the Heller, Jordan and McVey lawsuit with Boasberg presiding was called Heller III. On July 31 the plaintiffs filed their third amended complaint citing the many differing but identical new ordinances passed by the DC Council. During the next 18 months the city kept stalling and postponing, thus pushing back the timetable for appeals. On May 15, 2014, Judge Boasberg dismissed the lawsuit. Four days later the dismissal was appealed to CA-DC.
CA-DC reversed the requirements that a gun-owner register his firearm every three years, the firearm be brought to the police station for registration, and a test on DC firearms laws, and only one handgun registration per month. They upheld the registration requirements of the city.
The Palmer case was primarily a Right-to-Carry case. The plaintiffs alleged since DC refused to allow legal possession of a handgun that could be carried in public it was a total ban. On July 28, 2014, Judge Scullin, a Senior US Judge who normally sat on the New York Circuit, ruled the ordinance unconstitutional. Although it is routine for judges when striking legislative actions to issue a stay Judge Scullin did not. It took two days for the DC government to file a request for an immediate administrative stay. The DC strategy was to keep asking for delays while at the same time passing an ordinance to allow handguns outside the home in a limited manner.
As the DC City Council passed their new emergency ordinance which included a “good reason” requirement, two new lawsuits were introduced: Wrenn et al. v. DC in February 2015 and Grace et al. v. DC in December 2015. Both cases alleged that the new handgun licensing standard was “essentially unchanged from its previous iteration.” In March 2016 the District Court denied the plaintiffs’ motion in the Wrenn case for a preliminary Injunction leading to an immediate appeal to DC-CA.
In May 2016 Judge Leon ruled in the Grace case, “Because the right to bear arms includes the right to carry firearms for self-defense both in and outside the home, I find that the District’s ‘good reason’ requirements likely places an unconstitutional burden on this right.” The city appealed to DC-CA.
DC-CA held oral arguments on Wrenn and Grace in September 2016 separately. Ten months later on July 25, 2017, the Court issued its opinion: “We vacate both orders and…enter permanent injunctions against enforcement of the District’s good-reason law.” The District’s appeal for a rehearing “en banc” was denied. On October 5, 2017, DC Attorney General Karl Racine announced that the city would not appeal to the Supreme Court.
We can rest assured that the DC City Council will again try to modify their gun laws to make them as strict as possible. A Washington Post editorial of October 10 even suggested more ways of restricting gun owner rights. Freedom and self-defense are not free—let’s hope there are more Hellers, Graces, and Palmers willing to step forward and again challenge the status quo.
Tanya Metaksa is the former head of the National Rifle Association’s Institute for Legislative Action and a former board member of the group.