Remarks

Concealed Carry Could Be Headed for the Supreme Court

A recent appeals-court ruling on concealed handguns includes a cry for clarity

Guns in America

On July 25, a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down Washington’s tough local restriction on who can obtain a permit to carry a concealed handgun in public. The ruling conflicted with those of four other intermediate courts of appeal that in recent years have upheld regulations limiting what’s known as “concealed carry.” Resolving such conflicts among the lower courts is one of the Supreme Court’s main responsibilities, and the D.C. case would provide a suitable vehicle for addressing the degree to which the Second Amendment protects an individual’s right to carry a gun outside the home.

All 50 states, along with the District of Columbia, allow for concealed carry, with qualifications that vary from state to state. Conservative congressional Republicans, backed by the influential National Rifle Association, are currently pushing legislation that would impose “national reciprocity”—a system under which residents of states with lax concealed-carry laws would be able to take their firearms into states with more restrictive laws.

The spread of more permissive concealed-carry laws over the past dozen years has been a boon to those who make and sell firearms. Smith & Wesson, Glock, and other gun manufacturers have enjoyed strong sales of smaller revolvers and pistols specifically designed to be tucked beneath a jacket or in a pocketbook.

To understand the potential significance of the D.C. Circuit ruling, let’s begin with a little background: It was only in 2008 that the Supreme Court, in a 5–4 majority opinion written by the late Justice Antonin Scalia, established for the first time that the Second Amendment created an individual right to keep a gun at home. That ruling, known as District of Columbia v. Heller, invalidated what was essentially a local ban in Washington on owning guns. Two years later, the high court clarified that the right established in Heller applied to the states as well as the capital.

Since 2010, the Supreme Court has taken a break from gun control, turning down invitations from gun-rights activists to elaborate on Heller’s reach. The justices, who hear only the cases they wish to hear, sometimes step back from major issues to allow them to percolate for a while in the lower courts. The justices have declined in recent years, for example, to resolve whether the Second Amendment’s protection of “the right of the people to keep and bear arms” applies in public spaces and, if it does, what limits may be placed on that right.

In its ruling on July 25, the D.C. Circuit panel teed up these questions for the Supreme Court. The case consolidated two challenges to a Washington law that said residents have to have a “good reason” to obtain a concealed-carry permit. The reason could be a specific fear of injury or an occupational need, as a person who transports valuables might have, but living or working in a high-crime area didn’t qualify as sufficient justification. (Interestingly, one of the challengers was Pink Pistols, a pro-gun LGBT group whose motto is “Pick On Someone Your Own Caliber.”)

Writing for the majority, Judge Thomas Griffith, a George W. Bush appointee, reasoned that, while Heller focused primarily on the right to keep a gun at home, the precedent’s logic extended with equal force to the right to bear arms in public. “Possession and carrying—keeping and bearing—are on equal footing,” he wrote. As a practical matter, he continued, the “good reason” requirement amounted to “a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs.” A total ban on the exercise of a constitutional right cannot stand, Griffith added. “That’s enough to sink this law under Heller.”

Judge Stephen Williams, a Reagan appointee, joined the majority. Judge Karen LeCraft Henderson, nominated by George H.W. Bush, dissented. Henderson wrote that the judiciary should defer to the judgment of local officials—that in D.C., violent crime and the city’s unique security needs justify the good-reason rule. Her approach roughly aligned with those articulated by federal courts of appeal that upheld similar concealed-carry restrictions in Maryland and New Jersey. Joseph Blocher, a professor at Duke Law School, pointed out on the Take Care legal blog that if its approach were followed more broadly, the D.C. Circuit’s ruling “would inexorably expand Second Amendment rights” and give “short shrift” to public safety.

In highlighting the clashing views among lower courts, Griffiths’s ruling  also appeared to be sending a clear signal to the Supreme Court that its intervention is needed. Trump appointee Neil Gorsuch is certainly eager to get at the issue. In June, the Supreme Court declined to review a California concealed-carry law following the San Francisco-based U.S. Court of Appeals for the Ninth Circuit’s ruling that the Second Amendment doesn’t protect the right to concealed carry. Four Supreme Court justices must agree to take up a case, which left Gorsuch and Justice Clarence Thomas to argue in an impassioned statement afterward that the high court should have accepted the California case, presumably to reverse the Ninth Circuit. 

Given the circuit conflict created by the recent D.C. ruling, it’s likely Gorsuch and Thomas will have more luck in the coming term persuading two colleagues to join them in setting the table for what could be a Second Amendment landmark.       

    Paul Barrett
    Bloomberg Businessweek Columnist
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