D.C. Appeals Court Upholds Mandatory Gun Licensing

(CBS/AP)

An appeals court in Washington, D.C. has upheld the city's extremely restrictive law requiring residents to obtain licenses to carry handguns outside of their homes.

The U.S. Supreme Court's ruling last year in the high-profile D.C. v. Heller Second Amendment case did not invalidate the District of Columbia's licensing requirements, and even appears to have endorsed them, the appeals court ruled.

"While the statute indisputably imposes a regulatory restriction on the right to bear arms, on its face it does not stifle a fundamental liberty," the D.C. Court of Appeals concluded in an opinion dated August 27.

The case arose out of a criminal prosecution of a fellow named Manuel Brown, who was charged with crimes including carrying a pistol without a license. On appeal, Brown claimed the ordinance violated his Second Amendment rights. (The relevant law says: "No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed.")

Now, bad facts tend to make bad law, and Brown -- who had been convicted of murder by this point -- was hardly a sympathetic defendant. Different facts and a different litigant may have yielded a different result, and Brown would probably not have been able to obtain a concealed weapon license anyway.

Still, it's worth noting that the Second Amendment Foundation filed a federal lawsuit against the District a few weeks earlier on a very similar question: the constitutionality, post-Heller, of the city's licensing scheme.

Alan Gura, the Alexandria, Va. attorney who filed the civil suit, told me on Wednesday evening that he doesn't think the recent appeals court decision will make much of a difference.

"We're not challenging the requirement for a license," Gura said. But, he added, "there has to be the ability for people to quality for a license."

As an aside, the reason I called the District's law extremely restrictive is not the mere requirement for a license; not all states permit unlicensed open carry of firearms, and only Vermont and Alaska allow concealed carry without licenses. The reason the District's law is so restrictive is that a law enacted in December 2008 seems to have limited the ability of the police chief to authorize any carrying of firearms for self defense.

Here's another excerpt from Brown v. U.S., which was decided by the city's equivalent of a state appeals court, while Gura's lawsuit will be heard in federal court:

On its face, the licensure requirement that the CPWL (carrying a pistol without a license) statute imposes does not appear as a substantial obstacle to the exercise of Second Amendment rights. Moreover, while the statute indisputably imposes a regulatory restriction on the right to bear arms, on its face it does not stifle a fundamental liberty. See United States v. Miller, 604 F.Supp.2d 1162, 1170 (W.D.Tenn.2009) ("a close examination of Heller reveals that the Court never explicitly embraced ... the right to bear arms as 'fundamental' under the Constitution"). For these reasons, we conclude that the CPWL statute is not invalid on its face.

We turn next to amicus's "as applied" argument: the argument that enforcement against appellant of the CPWL statute-as part of the District's regulatory scheme that required him to have a license to carry a pistol but made it impossible for him to obtain such a license-violated his rights under the Second Amendment... Under either approach-intermediate scrutiny or a consideration of whether the restriction is "similar enough ... to justify its inclusion in the list of 'longstanding prohibitions' that survive Second Amendment scrutiny" -- we have little trouble concluding that the enforcement of the CPWL statute involved here was lawful.

And a few other items as I try to catch up from a week offline in the Nevada desert at the Burning Man festival:

Gun Rights In St. Louis: If you're anywhere near St. Louis, Mo. the weekend of September 26, you should try to stop by the 24th annual Gun Rights Policy Conference. I'll be there for the first time (remember, I've only been on this beat a few weeks) and would be delighted to meet CBSNews.com readers. Look for me at the panel on Montana and states' rights.

Felon Has Right To Own Guns: Barney Britt is a longtime outdoorsman and hunter who once claimed a trophy for shooting the third largest deer in North Carolina history. Now the resident of the town of Garner, a short drive south of Raleigh, N.C., can claim a different type of trophy: he faced off against the government over gun rights, and he won.

Some background: Britt pleaded guilty to felony possession of methaqualone (aka quaaludes) in 1979, when he was 20 years old. Now he's 49 years old, has no subsequent criminal history, and there's no evidence he's violent or dangerous today. In fact, he peaceably owned firearms from 1987 to 2004.

In 2004, the North Carolina General Assembly rewrote the law to deny possession of any firearm to anyone convicted of a felony, even if the guns were kept at their homes or businesses. So Britt filed a lawsuit claiming his rights -- not his Second Amendment rights, but those protected by the state constitution -- were violated by the new law.

On August 28, the North Carolina Supreme Court agreed. The majority opinion written by Justice Edward Brady concluded: "Based on the facts of plaintiff's crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute's operation, as applied to plaintiff, the 2004 version of N.C.G.S. Sec. 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety."

Two thoughts: First, the wording of that portion of the North Carolina constitution is identical to the Second Amendment ("the right of the people to keep and bear arms shall not be infringed"), so the same logic that let a state supreme court court reach the pro-gun outcome should allow the U.S. Supreme Court to reach the same conclusion. Then again, last year's Heller majority opinion didn't.

Second, this is unlikely to sway judges in other jurisdictions. Britt is an unusually sympathetic plaintiff, one who had his civil rights restored and who legally possessed firearms for over a decade without incident. Almost every day, citing the language in Heller, state and federal courts routinely reject claims by other convicted felons that their rights to own firearms were violated.

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Declan McCullagh is a correspondent for CBSNews.com. He can be reached at [e-mail]. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.

[bigwookiee]

native_warrior_USMC your assessment of licensing I thing may be misguided. By definition a criminal will ignore licensing laws. All licensing laws do is get other wise law abiding citizens in trouble. A former marine and a law student was recently arrested in DC for not having a license to transport a firearm, he was travailing form his home in Virginia to his school north of DC. If you think licensing laws are fair I suggest you go and try and get one for the city of DC. I will not be holding my breath. I would not call the actions of this man criminal. I can't even find a victim anywhere. Our laws use to require a victim. I think this marine is a victim of the system that has failed to protect anyone.

[DLRu]

Sorry guys....Can't require a license tax, it's a tax, in the exercise of a fundamental constitutionally protected right. A Certificate of Competence can do what a license does, but without the underlying requirements and regulations that are INDETERMINABLE at present, that attach to the license.

It's sad to see you folks have such a limited view of the fundamental right to self-defense...Sorry, I can't do that. I have only one life and I will defend it at the highest level I see fit and allowable under all my rights....Listed and UNLISTED.

U.S. Supreme Court

319 U.S. 105 (1943)
MURDOCK
v.
COMMONWEALTH OF PENNSYLVANIA
and seven other cases, including
JONES v. CITY OF OPELIKA, 319 U.S. 105 (1943)

"It is contended, however, that the fact that the license tax can suppress or control this activity is unimportant [319 U.S. 105, 113] if it does not do so. But that is to disregard the nature of this tax. It is a license tax ? a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution."

[Jeff419]

If you can't be trusted to own and carry a gun then you should be in jail. Any free man who is not currently incarcerated must be able to freely exercise their rights.

Imagine if there were a law where you needed a license to speak in public.... that's the same argument here. It's a right, not a privilege. Rights are inherent to all of us and exist without govt of the constitution. The original purpose of govt was to protect our rights, not to grossly abuse them.

[mrsherman]

How I read this article: This is a good piece on the problem with "blanket" policies, using the issue of gun rights as an example. Maybe the licensing requirements in DC are too stringent. I'm not from there and so I'm not familiar with them. Possibly with the need to verify that the applicants are who they say they are, so criminal records can be checked is the problem that needs to be corrected.
Also, I think (my opinion) former felons of non-violent crimes who have completed ALL the requirements of their sentences should have their full rights restored in time after they've demonstrated socially responsible behavior. Let the states/communites decide how long that time should be, as long as it's not unreasonable.

[owlafaye]

D.C. continues to make the permitting process as difficult and tangled as possible. I consider this capricious and a criminal act in and of itself... a blatant defiance of the rulings of the courts.

[native_warrior_USMC]

I agree with AL. The unrestricted/unregulated ability to carry is obsurd. I am a NRA Member, a veteran, and a conservative and I am not stupid. There are some people who should not be able to own a weapon, much less carry on. There is nothing wrong with the governing authority handling the issuing of a concealed carry license to conduct a thorough background check of someone. Some people should not have a weapon yet still do, and that's why I carry one. To protect me and my family against them.