Karin Riley Porter is a criminal defense attorney with Price Benowitz LLP. Ms. Porter is a former prosecutor who works out of her office in Fairfax, Virginia. She handles white collar, sensitive misdemeanor, complex DUI, and felony cases in Northern Virginia.
A group called The Pink Pistols are celebrating a major victory in both the gun control as well as the gay rights arena, following a finding that portions of D.C.’s concealed carry requirements are “likely unconstitutional.”
Last week District Judge Richard J. Leon granted the preliminary injunction sought by the Pink Pistols and their co-plaintiff, D.C. resident Matthew Grace, effectively halting enforcement of the District’s “good cause” requirement to obtain a concealed carry permit.
Although the D.C. Attorney General plans to appeal the decision and request a stay of the injunction, the decision may nonetheless have a ripple effect on similar gun control legislation in other states. In addition to the legal ramifications, the publicity surrounding the decision has brought the Pink Pistols’ message into the public spotlight, a victory in and of itself.
The Pink Pistols feel that animus toward perceived sexual orientation “constitutes a clear and present danger to the sexual-minority community that predicates just cause to carry a firearm for self-defense.” Pink Pistols leader Gwen Patton hopes increased public awareness that the LGBTQ community is arming itself will have a deterrent effect on hate crimes.
Current D.C. regulations require applicants seeking a concealed carry permit to meet multiple gun safety, age, personal history, and health requirements, all of which must be verified by a member of the Metropolitan Police department during an interview with the applicant.
The pending lawsuit does not challenge any of these requirements, which are mirrored in nearly every state’s concealed carry application process. Rather, at the heart of the lawsuit is D.C.’s “good cause” provision, which provides that the Chief of the Metropolitan Police Department “may” issue a concealed carry permit only “if it appears that the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol” D.C. Code § 22-4506(a).
Plaintiff Matthew Grace, a D.C. resident and member of the Pink Pistols, owns four legally registered handguns. He sought to obtain a permit to lawfully carry those weapons outside of this home for a variety of reasons, including an increase in incidents of violent crime in his neighborhood and the robbery of his wife at gunpoint. When asked to state his “special need for self-protection distinguishable from the general community” on his concealed carry permit application, Grace cited the Second Amendment.
His application was denied solely because he did not demonstrate a “good reason to fear injury to person or property, or other proper reason for a concealed carry license.” The pending lawsuit challenges the constitutionality of denying him the right to carry a weapon in public on those grounds.
Like similar regulations in New York, California, Maryland, and New Jersey, D.C.’s “good cause” requirement grants the local Chief of Police a vast amount of discretion. Less than 75 D.C. concealed carry permits have been issued since the District’s total ban on carrying guns in public was declared unconstitutional in 2014.
Gun rights activist groups like the Pink Pistols feel that the “may-issue” scheme undermines the entire application process and violates the Second Amendment. They argue that allowing a potentially arbitrary decision by a single city official to be the deciding factor in an application to exercise a constitutional right is a “travesty of justice.” Apparently, District Judge Leon agrees.
The 46-page opinion discusses and analyzes D.C. regulations in light of the long history of gun control in America, tracing the development of similar lawsuits seeking to define the rights granted by the Second Amendment.
The court ultimately found that the right to carry weapons in case of confrontation, which was upheld in the 2008 Supreme Court opinion, District of Columbia v. Heller, must logically include the right to carry weapons to protect oneself against “unanticipated and suddenly arising threats.”
The requirement that one assert and provide evidence of a specific threat in order to be allowed to carry a weapon in public thus impermissibly infringes on this constitutional right.
District Judge Leon went on to find that D.C.’s good cause requirement would likely fail a strict scrutiny analysis, which requires that any law limiting a core constitutional right be narrowly tailored to promote a compelling government interest. Under the strict scrutiny standard, if a less restrictive alternative would serve the government’s interest, the legislature must use the alternative.
While the court recognized the District’s compelling government interest of preventing crime and promoting public safety, it did not agree that this interest translates into reducing to the greatest extent possible the number of “law-abiding, responsible citizens eligible to carry guns in public.”
With an appeal already in the works, it remains to be seen whether the preliminary injunction will have a lasting effect on gun control, but while the injunction is in effect the District’s concealed carry application process is greatly simplified. As many D.C. citizens rush to take advantage of the current window of opportunity, Patton hopes that the increasing number of armed members of the LGBTQ community will give equal rights opponents pause.
Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.