Injunction

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TOM G. PALMER, et al., ) Case No. 09-CV-1482-FJS
)
Plaintiffs, ) MOTION FOR PERMANENT
) INJUNCTION
v. )
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
MOTION FOR PERMANENT INJUNCTION
COME NOW the Plaintiffs, Tom G. Palmer, George Lyon, Edward Raymond, Amy
McVey, and the Second Amendment Foundation, Inc., by and through undersigned counsel, and
move the Court for entry of an order permanently enjoining Defendants from enforcing D.C. Code
22-4504(a), as amended following this Courts judgment of July 29, 2014, unless and until such
time as the District of Columbia adopts a licensing mechanism consistent with constitutional
standards enabling people to exercise their Second Amendment right to bear arms..
Dated: October 2, 2014 Respectfully submitted,
Alan Gura (D.C. Bar No. 453449)
Gura & Possessky, PLLC
105 Oronoco Street, Suite 305
Alexandria, VA 22314
703.835.9085/Fax 703.997.7665
By: /s/ Alan Gura
Alan Gura
Attorney for Plaintiffs
Case 1:09-cv-01482-FJS Document 71 Filed 10/02/14 Page 1 of 1
)
Plaintiffs, ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
v. ) PLAINTIFFS MOTION FOR
) PERMANENT INJUNCTION
)
Defendants. )
COME NOW the Plaintiffs, Tom G. Palmer, George Lyon, Edward Raymond, Amy
McVey, and the Second Amendment Foundation, Inc., by and through undersigned counsel, and
submit their Memorandum of Points and Authorities in Support of their Motion for Permanent
Injunction.
703.835.9085/Fax 703.997.7665
By: /s/ Alan Gura
Alan Gura
Case 1:09-cv-01482-FJS Document 71-1 Filed 10/02/14 Page 1 of 31
TABLE OF CONTENTS
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. The Relevant Statutory Regime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. The Statutory Regimes Application Against Plaintiffs.. . . . . . . . . . . . . . . . . . . . . . . 8
3. Plaintiffs Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. This Courts Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
I. Legislation That Merely Reformulates a Practice Enjoined
by the Court Does Not Entitle Defendants to Relief. . . . . . . . . . . . . . . . . . . . . . . . . 13
II. Defendants Persist in their Essential Prohibition of the Right to Bear Arms.. . . . . . 15
III. Defendants Revived Licensing Regime Imposes an Impermissible
Prior Restraint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
IV. The Districts Licensing Regime Would Fail Any Level of
Means-Ends Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
V. The Court Should Accept the City Councils Commitment to Obstructing
the Right to Bear Arms at Face Value. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
i
TABLE OF AUTHORITIES
Cases
Bateman v. Perdue,
881 F. Supp. 2d 709 (E.D.N.C. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Beal v. Stern,
184 F.3d 117 (2d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Bsharah v. United States,
646 A.2d 993 (D.C. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
City of Lakewood v. Plain Dealer Publishing Co.,
486 U.S. 750 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
City of Mesquite v. Aladdins Castle, Inc.,
455 U.S. 283 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
District of Columbia v. Heller,
554 U.S. 570 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 15, 18, 20
Drake v. Filko,
724 F.3d 426 (3d Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20
Ezell v. City of Chicago,
651 F.3d 684 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 22
Fletcher v. Haas,
851 F. Supp. 2d 287 (D. Mass. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Isaacson v. Horne,
716 F.3d 1213 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
Kachalsky v. Cnty. of Westchester,
701 F.3d 81 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22
Largent v. Texas,
318 U.S. 418 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
McDonald v. City of Chicago,
130 S. Ct. 3020 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ii
Mosby v. Devine,
851 A.2d 1031 (R.I. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19, 21
Muscarello v. United States,
524 U.S. 125 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
National Black Police Assn v. District of Columbia,
108 F.3d 346 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 24
Parker v. District of Columbia,
478 F.3d 370 (D.C. Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
People v. Zerillo,
219 Mich. 635, 189 N.W. 927 (1922). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19, 21
Peruta v. Cnty. of San Diego,
742 F.3d 1144 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 17, 18, 21-23
Reed v. Town of Gilbert,
707 F.3d 1057 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Schubert v. De Bard,
398 N.E.2d 1339 (Ind. App. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19, 21
Speiser v. Randall,
357 U.S. 513 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
State v. Reid,
1 Ala. 612 (1840). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Staub v. City of Baxley,
355 U.S. 313 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Woollard v. Gallagher,
712 F.3d 865 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22
iii
Constitutional Provisions
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Const. amend. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Const. amend. IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Statutes
Ariz. H.B. 2036 9(B)(1), (2012), available at http://www.azleg.gov/
legtext/50leg/2r/bills/ hb2036s.pdf, archived at http://perma.cc/
KA77-TMQ8 (last visited Oct. 1, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
D.C. Act 17-690, 56 D.C. Reg. 1162 (Jan. 16, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
D.C. Act 19-366, 59 D.C. Reg. 5691 (May 25, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
D.C. Code 22-4504(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 8, 10, 11, 13, 15, 24
D.C. Code 22-4506(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9
D.C. Code 7-2502.01(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8
D.C. Code 7-2509.02(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
D.C. Code 7-2509.08(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D.C. Code 7-2509.08(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D.C. Code 7-2509.08(l)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D.C. Code 7-2509.10(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15
D.C. Code 7-2509.10(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16
iv
Other Authorities
Andrea Noble, Lawmakers grudgingly draft bill to authorize concealed
carry of guns in D.C., Washington Times, Sept. 17, 2014,
available at http://www.washingtontimes.com/news/
2014/sep/17/lawmakers-grudgingly-introduce-bill-authorize-
conc/?page=1 (last visited Sept. 24, 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Blacks Law Dictionary (6th ed. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation,
38 Wm. & Mary L. Rev. 1311 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Mayor Gray, Chairman Mendelson and Councilmember
Wells Propose Emergency Firearm Legislation, available at
http://mayor.dc.gov/release/mayor- gray-chairman-mendelson-
and-councilmember-wells-propose-emergency-firearm-legislation
(last visited Sept. 23, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Video, D.C. City Council, Twenty-Ninth (Additional) Legislative Meeting,
Sept. 23, 2014. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8
v
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS
MOTION FOR PERMANENT INJUNCTION
PRELIMINARY STATEMENT
This Court ordered that the District of Columbias handgun carry prohibition will remain
permanently enjoined unless and until such time as the District of Columbia adopts a licensing
mechanism consistent with constitutional standards enabling people to exercise their Second
Amendment right to bear arms. Memorandum Decision & Order, Dkt. 51, at 16 (footnote omitted).
Defendants have responded not with appropriate legislation consistent with the Courts
ruling, Order, Dkt. 53, at 2 (footnote omitted), but with a thumbing of the municipal nose at the
[court]. Ezell v. City of Chicago, 651 F.3d 684, 712 (7th Cir. 2011) (Rovner, J., concurring).
1
They have merely dusted off their earlier statute restricting handgun carry licenses at the police
chiefs pleasure, a licensing regime which explicitly rejects the notion that people have a right to
carry handguns for self-defense. Beyond that, the operative language of the enjoined carry ban, D.C.
Code 22-4504(a), having been modified non-substantively in September, 2012, was reverted to
substantially the same form it had on the day this lawsuit was filed. This is the same regime under
which it was common knowledge that licenses were virtually unobtainable for many years.
Bsharah v. United States, 646 A.2d 993, 996 n.12 (D.C. 1994). Authority this Court followed
struck down a practically identical law.
This is not progress [Defendants] have made to comply with the Courts decision. Order,
Dkt. 66, at 2. It is resistance. Indeed, various D.C. City Councilmembers emphatically declared that
License to Carry a Pistol Emergency Amendment Act of 2014, D.C. Bill B20-0926 (passed
1
Sept. 23, 2014) attached hereto as Exhibit A. Considering that the Courts stay of its order is nearing
expiration, briefing the question of whether this legislation complies with the Courts ruling should
not await the Mayors inevitable signature by the October 10 deadline (considering he proposed the
legislation) or veto override (considering passage was unanimous).
1
the legislation does not moot this dispute, and urged the Attorney General to pursue the appeal he
believes remains available. And some within the city, including the City Council Chairman, believe
that individuals might be prosecuted under the enjoined statute upon the stays expiration, owing
simply to the recent legislation. The Court should thus clarify that the injunction remains in place,
notwithstanding the minor technical changes to the enjoined provision.
To be sure, some of the restrictions on the right to bear arms that Defendants are enacting in
reaction to this Courts opinions are merely objectionable, but not unconstitutional. Others are
constitutionally dubious, but qualify as truly new laws that do not fall within the ambit of the
complaint, or this Courts decision, as they do not rise to the level of destroying the right to bear
arms. These might be addressed in future litigation. Yet other provisions are ambiguous absent
clarifying regulations or practice.
2
Accordingly, Plaintiffs motion is narrow, directed only to the defiant centerpiece of
Defendants legislative response. The Courts order specifically instructed, in accordance with
Supreme Court precedent, that the right to carry handguns is rooted in a constitutional self-defense
interest. Yet Defendants have replaced their no permits are available handgun carry regime with
no permits are available merely for self-defense, and not unless we think, in our complete
discretion, that its a good idea.
For example, Plaintiffs have no idea what to make of the requirement that an applicant
2
demonstrate to the satisfaction of the Chief that she [d]oes not currently suffer nor has suffered in
the previous 5 years from any mental illness or condition that creates a substantial risk that he or she
is a danger to himself or others. See Exh. A, at 2, Sec. 902(a)(3), forthcoming D.C. Code 7-
2509.02(a)(3). It cannot possibly be constitutional to require a psychiatric examination to exercise a
fundamental right, nor is it possible for anyone to prove the negative proposition that they were not
mentally ill during the preceding five year period. But implementing this provision by conducting a
quick background check through any existing mental health records, or asking the applicant to sign
a declaration attesting to the absence of illness, should be unobjectionable.
2
Defendants having failed to enact a licensing mechanism consistent with constitutional
standards enabling people to exercise their Second Amendment right to bear arms, the Court should
remove all doubt that D.C. Code 22-4504(a) remains enjoined in its new, old form.
STATEMENT OF FACTS
1. The Relevant Statutory Regime
When this lawsuit began, D.C. Code 22-4504(a) (2008) provided that [n]o 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. D.C. Code 7-2502.01(a) mandated handgun registration.
Handgun registration applicants were required to provide a brief statement of your intended use of
the firearm and where the firearm will be kept, and Defendant Lanier couldand diddeny
registration based on unsatisfactory statements. See Summ. Judgment Exhibits A, B, and C.
D.C. Code 22-4506(a) (2008) had provided that
The Chief of Police of the District of Columbia may, upon the application of any person
having a bona fide residence or place of business within the District of Columbia or of any
person having a bona fide residence or place of business within the United States and a
license to carry a pistol concealed upon his or her person issued by the lawful authorities of
any State or subdivision of the United States, issue a license to such person to carry a pistol
within the District of Columbia for not more than 1 year from date of issue, 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 and that he or she is a suitable person to be so licensed.
This section was repealed, effective May 20, 2009. See Inoperable Pistol Amendment Act of
2008, D.C. Act 17-690, 56 D.C. Reg. 1162, 1165 (Jan. 16, 2009). An amendment effective
September 26, 2012two weeks before this case was last arguedstruck the reference to a
handgun carry license from Section 22-4504(a). See D.C. Act 19-366, 59 D.C. Reg. 5691, 5697
(May 25, 2012).
3
On September 23, 2014, the City Council unanimously passed emergency legislation, valid
for 90 days upon the Mayors signature, restoring D.C. Code 22-4504(a)s pre-September, 2012
reference to a handgun carry license. Aside from omitting reference to non-concealable weapons, the
provision now reads just as it did on the day this lawsuit was filed.
3
The legislation also revives, nearly verbatim, the previous D.C. Code 22-4506(a). The
only differences between the new and immediately preceding versions of this section are: (1) The
Chief of Police of the District of Columbia is shortened to the Chief; (2) the licenses authorize
not carry but carry concealed; and (3) licenses are valid for two years, not one. Critically, the
legislation restoresword for wordthe old standard guiding the issuance of licenses. The police
chief may issue a license 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, and that he or she is a
suitable person to be so licensed.
Defendants intent is to reinstate the test for carrying a firearm that was in place for many
years after [the] 1931 law . . . . Under this standard, [i]t [was] common knowledge . . . that with
4
very rare exceptions licenses to carry pistols have not been issued in the District of Columbia for
many years and are virtually unobtainable. Bsharah, 646 A.2d at 996 n.12.
5
By deleting language that would have exempted non-concealable weapons from the
3
sections weapons-carrying ban, the law now apparently extends to rifles, shotguns, swords, etc.,
which are not implicated by this litigation.
See Mayor Gray, Chairman Mendelson and Councilmember Wells Propose Emergency
4
Firearm Legislation, available at http://mayor.dc.gov/release/mayor- gray-chairman-mendelson-
and-councilmember-wells-propose-emergency-firearm-legislation (last visited Sept. 23, 2014).
As the Court may recall, however, in 1931 licenses were only required to carry concealed
5
handguns; the licensing requirement was not extended to the open carrying of handguns until 1943.
4
The rules purporting to guide Defendant Laniers discretion make clear that the general
interest in self-defense is inadequate to obtain a handgun carry permit, and indeed, that the
population at large is disqualified:
Demonstrated a good reason to fear injury to his or her person . . . shall at a minimum
require a showing of a special need for self-protection distinguishable from the general
community as supported by evidence of specific threats or previous attacks which
demonstrate a special danger to the applicants life;
Exh. A, at 10, Sec. 910(a)(1)(A), forthcoming D.C. Code 7-2509.10(a)(1)(A) (emphasis added).
Demonstrated any other proper reason for carrying a concealed pistol . . . shall at a minimum
include types of employment that require the handling of cash or other valuable objects that
may be transported upon the person of the applicant . . . .
Exh. A, at 10, Sec. 910(a)(1)(B), forthcoming D.C. Code 7-2509.10(a)(1)(B).
Rejected applicants may appeal the Chiefs denial to a Concealed Pistol Licensing Review
Board, composed of five essentially political appointees. At least three of the five board members
are appointed by the Mayor or Attorney General, and at least three of the five board members must
have a police or prosecutorial background. Exh. A at 8-9, Sec. 908(a) & (b), forthcoming D.C. Code
7-2509.08(a) & (b). The boards rules shall include that the burden of production of evidence,
and the burden of persuasion, at any hearing before the Board shall be upon the applicant or licensee
that is challenging any denial of an application or renewal application or revocation of a license.
Exh. A at 9, Sec. 908(l)(2), forthcoming D.C. Code 7-2509.08(l)(2).
In passing this legislation, the City Council made clear its continuing hostility to the right to
bear arms, and relied expressly upon the opinion given them by Defendants counsel, the District of
Columbias Attorney General, that enactment of the bill would not terminate this case. The bill was
enacted not to end this litigation, but in the erroneous view that the bill was required in order to
revive prosecutions in the District for carrying handguns in public.
5
Notable declarations of contempt and animus for anyone who might wish to carry a handgun
punctuated a discussion of whether Defendants should release the names and possibly addresses of
handgun licensees. Councilmember Grosso suggested that a public database of licensed gun carriers
should be available so that licensees could be shunned by others, as this is inherently a dangerous
situation. Some councilmembers protested that disclosing licensing data would endanger public
6
safety, but others were less concerned. Stated Councilmember Alexander, Who cares about the
confidentiality of a gun owner. We dont want it . . . we dont want it, so expose yourself. Video
n.6, at 1:49:49.
7
Councilmember Bowser asked, could the attorney general still proceed with the argument
that the District of Columbia is indeed a special case and people should not be permitted to carry
here? Id. at 1:53:54. To which Councilmember Wells responded,
Ive got a communication through the chair to you, Ms. Bowser, a communication from the
Attorney Generals office that its the Attorney Generals opinion that it does not in any way
preclude our appeal from going forward. Thats the opinion of the Attorney General, thats
what weve received.
Id. at 1:54:10.
Councilmember Cheh then declared, I think its imperative that we do preserve our right to
appeal. Id. at 1:56:27.
See Video, D.C. City Council, Twenty-Ninth (Additional) Legislative Meeting, Sept. 23,
6
2014, at 1:27:34. The video is available at the District of Columbias Legislative Information
Management System by searching for bill B20-0926. See http://lims.dccouncil.us/Legislation/B20-
0926?FromSearchResults=true (last visited Sept. 29, 2014). Select the Bill History tab, and then
any of the View Video icons for a pop-up video of the Councils session.
Objections to disclosure focused largely on fears that criminals would know from whom to
7
steal guns. The Council seemed uncaring or oblivious to the fact that, especially under D.C.s
restrictive standards, permits would hypothetically be obtained by people who have good reason to
shield their personal information, e.g., women who fear and need protection from stalkers.
6
And we have to emphasize, and never give up on, because we shouldnt just lay down on
this, we are a unique jurisdiction. There is a compelling justification to prohibit carry laws in
the District of Columbia unmatched by any other place. And so therefore, I dont want to do
anything to foreclose our ability and our opportunity to put that out there. Because I think
that if properly viewed, we ought to be able to ban carry laws in the District of Columbia.
So if its indeed the case that we are not sacrificing that, and we are in a tough bind, nobody
is happy up here, Im going to vote for this but I want us to be committed to arguing in favor
of a no carry rule for the District of Columbia.
Id. at 1:57:17.
Council Chairman Mendelson offered,
Im of the view, weve talked about this before, that we ought to proceed with the appeal
because I think that . . . Judge Scullins opinion was broad with regard to the injunction and
problematic with regard to the injunction and although the holding I think was because of
the absolute ban ... Section 22-4504(a) could not be enforced, I think theres some value to
our appealing and trying to get something thats better.
Id. at 1:58:12.
Councilmember McDuffie noted that weve talked a little bit about the need to appeal and
theres been a question about whether or not passing this bill would essentially moot the ability of
the attorney generals office to appeal. Id. at 2:00:16. McDuffie asked whether or not passing this
emergency bill still allowsand I tend to agree that it doesbut still allows the attorney general the
opportunity to appeal assuming that we get a response on the motion for reconsideration. Id. at
2:02:25. Councilmember Wells responded, the Attorney General has stated that it does not impact
the ability for the District to go ahead and appeal the decision . . . . Id. at 2:02:41.
Councilmember Cheh is exactly right, that we dont want to cede anything off the bat . . .
Id. at 2:03:27. Added Council Chairman Mendelson, I said at the breakfast this morning that I did
not think this precluded the ability to appeal and I feel more strongly about that now in light of what
the Attorney General has communicated that thats his view, it does not preclude his ability to
appeal. Id. at 2:03:46.
7
Councilmember Catania was less sure about mootness, asking that the entire bill be made
applicable only upon this cases final resolution. But Mendelson responded that some licensing
regime must be in place in order for people to be prosecuted for carrying a handgun without a
license. Of course, Chairman Mendelson was wrong: prosecutions should not resume until this
Courts injunction is lifted. In any event, he stated, I dont believe we are mooting our appeal. Id.
at 2:09:06. The only way that this case gets mooted is if the district asks that it be mooted because I
can assure you that the plaintiffs in the case are not going to moot this. Id. at 2:09:46. Catanias
8
request for a more carefully reasoned legal opinion on the issue went unanswered, except to the
extent that Wells offered, Its a temporary measure, so it does not fix the problem permanently, so it
continues to be an issue at question. Id. at 2:10:12; but see n.8.
2. The Statutory Regimes Application Against Plaintiffs
As noted, D.C. Code sections 7-2502.01(a), requiring handgun registration, and 22-4504(a),
prohibiting the carrying of handguns without a license, were at the time this lawsuit was filed
substantially identical to their form today following the most recent legislative enactment. Section 7-
2502.01(a)s relevant portion is unchanged. Section 22-4504(a) dropped its reference to a handgun
carry license in September, 2012, and that same language has just been restored.
Defendants refused Plaintiffs Palmer, McVey, and Lyon permission to carry handguns in the
District, denying their handgun registration applications for declaring an intent to carry those
handguns for self-defense. For example, Defendants wrote Tom Palmer:
Mootness does not ordinarily depend on a partys request. However, as discussed infra at
8
24, a legislative change under these circumstances does not moot the case, as there is clear evidence
that the losing government would insist upon, as Mendelson earlier put it, trying to get something
thats better.
8
The intended use of the firearm as stated on your firearms registration application, I intend
to carry this firearm, loaded, in public, for self-defense, when not kept in my home is
unacceptable per the Firearms Registration Emergency Amendment Act of 2008, which
states that pistols may only be registered by D.C. residents for protection within the home.
See Summ. Judgment Exh. A; see also Exhs. B & C. Plaintiff Raymonds desire for a handgun carry
permit was likewise based on his interest in self-defense, but Defendants refused him a registration
application on grounds of residence. See Raymond Decl., 8. SAF members are also impacted by
Defendants policies. Gottlieb Decl., 8.
Plaintiffs generalized interest in self-defense remains unchanged. They have nothing to add
to their previous statements, which plainly do not meet Section 22-4506(a)s revived criteria.
Plaintiffs cannot articulate a special need for self-protection distinguishable from the general
community, and none of them have what the District would consider a proper reason for carrying
a handgun. Plaintiffs were injured-in-fact when Defendants forbade them from having handguns in
the District of Columbia for defensive carry, and that injury persists, notwithstanding the fact that
Defendants might now hypothetically license differently-situated people.
3. Plaintiffs Claims
Plaintiffs Complaint is not limited to any precise formulation of Defendants practice, but
targets Defendants practice itself, of generally denying the right to bear arms for self-defense:
The District of Columbia may not completely ban the carrying of handguns for self-defense,
deny individuals the right to carry handguns in non-sensitive places, deprive individuals of
the right to carry handguns in an arbitrary and capricious manner, or impose regulations
on the right to carry handguns that are inconsistent with the Second Amendment.
Complaint, Dkt. 1, 13 (emphasis added).
The Complaint describes how, exactly, other states regulate handgun carrying in a manner
consistent with the right:
9
Almost all states basically respect the Second Amendment rights to carry a handgun for
self-defense, in that the right to carry a handgun is either unregulated, or regulated to the
extent that individuals passing a background check and completing a gun safety course
are, as a matter of course, licensed to carry handguns.
Id. 14.
Plaintiffs did not complain that the District required a permit to carry a handgun. Section 22-
4504(a)s language requiring a permit stands today as it did in 2009. Id. 18. Rather, Plaintiffs
alleged that by refusing to issue [handgun carry] permits and refusing to allow the possession of
any handgun that would be carried in public, Defendants maintain a complete ban on the carrying of
handguns in public by almost all individuals. Id. 39. Defendants laws, customs, practices and
policies generally banning the carrying of handguns in public violate the Second Amendment to the
United States Constitution, facially and as applied against the individual plaintiffs . . . . Id. 40
(emphasis added).
Accordingly, aside from an injunction against the registration home and residence
limitations, Plaintiffs sought two forms of alternative relief: that the Court would either enjoin
Section 22-4504(a)s prohibition on carrying handguns, OR, in the alternative, order[] defendants
to issue licenses to carry handguns to all individuals who desire such licenses and who have satisfied
the existing requirements, aside from residence requirements, for the registration of a handgun. Id.,
Prayer for Relief 2.
4. This Courts Judgment
This Court held that the Second Amendment secures a right to carry handguns for self-
defense, and held that while the right can be regulated, it cannot be entirely destroyed. This Court
relied on a Ninth Circuit opinion striking down a handgun-carry licensing scheme that entrusted
licensing decisions to the polices discretion, and which rejected the generalized interest in self-
10
defense as a basis for licensing. Rather than order the Defendants to enact some particular licensing
law, this Court enjoined Section 22-4504(a)s carry prohibition until such time that the District
adopts a licensing mechanism that complies with constitutional requirements, and allows ordinary
people to access the right to bear arms.
The [Supreme] Court explained that self-defense, recognized since ancient times as a basic
right, was the central component of the Second Amendment guarantee. Memorandum Decision
& Order, Dkt. 51, at 9 (quoting McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010)).
Accordingly, this Court was required to to decide whether the restricted activity in which Plaintiffs
would engage, a restriction on a responsible, law-abiding citizens ability to carry a gun outside the
home for self-defense falls within the Second Amendment right to keep and bear arms for the
purpose of self defense. Id. at 10.
[A]s the Supreme Court explained . . . at the time of the founding, as now, to bear meant
to carry. Id. at 11 (quoting District of Columbia v. Heller, 554 U.S. 570, 584 (2008)) (internal
punctuation omitted).
According to the Heller majority, the natural meaning of bear arms was the one that
Justice Ginsburg provided in her dissent in Muscarello v. United States, 524 U.S. 125
(1998), that is wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for
the purpose . . . of being armed and ready for offensive or defensive action in a case of
conflict with another person.Heller, 554 U.S. at 584 (quoting Muscarello, 524 U.S. at
143, 118 S. Ct. 1911) (Ginsburg, J., dissenting) (quoting Blacks Law Dictionary 214 (6th
ed. 1998)).
Id. at 11-12.
This Court further relied extensively on a Ninth Circuit decision which addressed statutes
very similar to the ones at issue in this casePeruta v. Cnty. of San Diego, 742 F.3d 1144 (9th
Cir. 2014). The Peruta court addressed the issue of whether a responsible, law-abiding citizen has
a right under the Second Amendment to carry a firearm in public for self-defense. Memorandum
11
Decision & Order, Dkt. 51, at 9 n.2 (quoting Peruta, 742 F.3d at 1147).
[T]he Heller Court emphasized that the need for the right was most acute in the home,
Peruta, 742 F.3d at 1153 (citing Heller, 554 U.S. at 628, 128 S. Ct. 2783), thus implying
that the right exists outside the home, though the need is not always as acute. Id. (citing
McDonald, 130 S. Ct. at 3044 (2010) ([T]he Second Amendment protects a personal right
to keep and bear arms for lawful purposes, most notably for self-defense within the home.))
Id. at 12. [B]oth Heller and McDonald identif[ied] the core component of the right as
self-defense, which necessarily take[s] place wherever [a] person happens to be, whether in a back
alley or on the back deck. Id. at 12-13 (quoting Peruta, 742 F.3d at 1153) (citations omitted).
This Court agrees with the Ninth Circuits statement in Peruta that [t]hese passages [from
Heller and McDonald] alone, though short of dispositive, strongly suggest that the Second
Amendment secures a right to carry a firearm in some fashion outside the home. Id. at 13 (quoting
Peruta, 742 F.3d at 1153). And Peruta correctly pointed out that Heller settled the point that the
right is, and has always been, oriented to the end of self-defense. Id. at 14 (quoting Peruta, 742
F.3d at 1155).
After an exhaustive summary of the text and history of the Second Amendment, the Ninth
Circuit in Peruta concluded that the carrying of an operable handgun outside the home for
the lawful purpose of self-defense, though subject to traditional restrictions, constitutes
bear[ing] Arms within the meaning of the Second Amendment. As the Ninth Circuit
noted, this conclusion is not surprising in light of the fact that other circuits have reached the
same result.
Id. (quoting Peruta, 742 F.3d at 1166) (citations omitted). This Court, joining with most of the
other courts that have addressed this issue, reaches this same conclusion. Id.
This Court then held that because the Second Amendment secures the right to carry a
handgun for self-defense, the District of Columbias total ban on the carrying of handguns within
the District infringes that right. Id. at 15. This Court noted with approval a regulatory approach
that would limit the right to carry a gun to responsible persons, noting that some states sensibly
12
require that an applicant for a handgun permit establish his competence in handling firearms. Id. at
16 (quoting Moore v. Madigan, 702 F.3d 933, 940-41 (7th Cir. 2012)).
Rather than order the Defendants to adopt a specific licensing program, this Court enjoined
Defendants from, inter alia, enforcing D.C. Code 22-4504(a) unless and until such time as the
District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling
people to exercise their Second Amendment right to bear arms. Id. (footnote omitted). This Court
thereafter stayed its decision for 90 days to provide the city council with an opportunity to enact
appropriate legislation consistent with the Court's ruling. Order, Dkt. 53 at 2 (footnote omitted).
This Court denied Defendants motion for a longer stay, but left the door open for extending the stay
on a motion setting forth in detail what, if any, progress [Defendants] have made to comply with
the Courts decision. Order, Dkt. 66, at 2.
SUMMARY OF ARGUMENT
There are only three ways in which to view Defendants resurrected licensing regime: a
practical destruction of the right to bear arms, an impermissible prior restraint granting the licensing
authorities unbridled discretion free of meaningful limitation, or a Second Amendment regulation
failing any level of means-ends scrutiny. But in no way can the legislation be said to resolve
Plaintiffs injury or comply with this Courts judgment.
ARGUMENT
I. LEGISLATION THAT MERELY REFORMULATES A PRACTICE ENJOINED
BY THE COURT DOES NOT ENTITLE DEFENDANTS TO RELIEF.
Federal courts are empowered to correct constitutional violations, and insist upon
compliance with their judgments. The dispute does not disappear merely because the District
enacted new legislation. The injunction was only to be lifted if the new legislation is appropriate
13
and consistent with the Courts ruling. Order, Dkt. 53 at 2 (footnote omitted). The question before
the Court now is whether the District has a licensing mechanism consistent with constitutional
standards enabling people to exercise their Second Amendment right to bear arms. Memorandum
Decision & Order, Dkt. 51, at 16 (footnote omitted).
It does not. Plaintiffs complaint is not literary criticism. It is not directed to 2009s specific
incantation of Defendants unconstitutional practice, or even to Defendants more blunt 2012
reformulation of that language. This dispute concerns the Second Amendment as a practical right.
Unsurprisingly, the complaint, as well as this Courts opinion and order, all specifically address or
foresee Defendants type of symbolic, illusory licensing system.
Mere reformulation of a challenged practice does not end a constitutional dispute. See
Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508
U.S. 656 (1993). In Northeastern Florida, the city sought to dismiss an equal protection challenge
to an ordinance setting aside certain contracts to women and minorities. Shortly after the Court
granted certiorari, the city substantially modified its ordinance, reducing the number of preferred
groups, replacing 10% set-asides with 5 to 16% participation goals, and creating different ways to
reach said goals. Id. at 660-61. The mootness argument left the Supreme Court unimpressed:
There is no mere risk that Jacksonville will repeat its allegedly wrongful conduct; it has
already done so. Nor does it matter that the new ordinance differs in certain respects from the
old one. [Precedent] does not stand for the proposition that it is only the possibility that the
selfsame statute will be enacted that prevents a case from being moot; if that were the rule, a
defendant could moot a case by repealing the challenged statute and replacing it with one
that differs only in some insignificant respect. The gravamen of petitioners complaint is that
its members are disadvantaged in their efforts to obtain city contracts. The new ordinance
may disadvantage them to a lesser degree than the old one, but insofar as it accords
preferential treatment to black- and female-owned contractorsand, in particular, insofar as
its Sheltered Market Plan is a set aside by another nameit disadvantages them in the
same fundamental way.
Id. at 662 (citation and footnote omitted); Reed v. Town of Gilbert, 707 F.3d 1057, 1066-67 n.8
14
(9th Cir. 2013) (notwithstanding statutory change, plaintiff has not obtained the relief it seeks and
continues to be subject to the limiting ordinance).
Notably, the enjoined statute proscribing Plaintiffs carrying of handguns, D.C. Code 22-
4504(a), remains virtually unchanged. And it does not require much analysis to see the essential
mismatch between this Courts announcement of the constitutional rule, and Defendants response.
II. DEFENDANTS PERSIST IN THEIR ESSENTIAL PROHIBITION OF THE RIGHT TO BEAR ARMS.
Constitutional rights are enjoyed by the people. See U.S. Const. amend. II (right of the
people); U.S. Const. amend. I (same); U.S. Const. amend. IV (same); U.S. Const. amend. IX (rights
. . . retained by the people). [T]he term [the people] unambiguously refers to all members of the
political community, not an unspecified subset. Heller, 554 U.S. at 580.
[T]he people protected by the Fourth Amendment, and by the First and Second
Amendments, and to whom rights and powers are reserved in the Ninth and Tenth
Amendments, refers to a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered part of that
community.
Id. (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)). Thus, a right cannot
be something enjoyed only by people with a special need . . . distinguishable from the general
community. Exh. A, at 10, Sec. 910(a)(1)(A), forthcoming D.C. Code 7-2509.10(a)(1)(A). If
bearing arms is a right of the people, it cannot possibly be denied to the general community
absent special need.
Obviously, Defendants good reason/special need restriction does not allow licensing
individuals such as Plaintiffs, who simply wish to carry handguns for self-defense against the
random, violent crime that plagues this city. As D.C. Attorney General Irvin Nathan declared,
15
Living in a high-crime area is not sufficient to establish the good cause. Indeed, the intent is to
9
maintain the state of affairs under which handgun carry licenses were virtually unobtainable.
Nor does the Districts proper reason requirement comport with the constitutional self-
defense interest. This rule privileges protection of money and material goods over the protection of
human life. A woman in a high-crime neighborhood concerned about rape does not have a proper
reason to carry a defensive handgun, unless she happens to hold employment that require[s] the
handling of cash or other valuable objects that may be transported upon [her] person. Exh. A, at 10,
Sec. 910(a)(1)(B), forthcoming D.C. Code 7-2509.10(a)(1)(B).
That Defendants fail to treat the carrying of handguns as a right is further confirmed by the
composition of their Concealed Pistol Licensing Review Board and the basic rules that the Board
is instructed to adopt. The Board is not independent, and its structure guarantees bias against gun
owners, both by virtue of its composition and literally per its rules. The political culture in the city is
absolutely hostile to the idea of handgun carrying, yet at a minimum, three of the five Board
members, and possibly all five, would be appointed by the Mayor and Attorney General. Beyond
that, the Board is tilted entirely toward those with a government, law enforcement, and prosecutorial
background. It is almost impossible to imagine such a board ever overturning the Police Chiefs
decisions barring the carrying of handguns, even if the licensing standards were objective and
themselves constitutionaland they are not.
10
Andrea Noble, Lawmakers grudgingly draft bill to authorize concealed carry of guns in
9
D.C., Washington Times, Sept. 17, 2014, available at http://www.washingtontimes.com/news/
2014/sep/17/lawmakers-grudgingly-introduce-bill-authorize-conc/?page=1 (last visited Sept. 24,
2014).
To be sure, Plaintiffs do not suggest that fundamental constitutional rights are subject to
10
veto by any official or body, however composed.
16
Beyond its flawed composition, and the fact that the Board must apply the same right-
denying guidelines exercised by the Chief, another problem lies in that the Boards rules place all the
burdens upon the citizen. But it is well-established that the government, not the individual, must
sustain a burden of proof appropriate for deprivation of fundamental rights. [A] constitutional
prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more
than it can be violated by direct enactment. The power to create presumptions is not a means of
escape from constitutional restrictions. Speiser v. Randall, 357 U.S. 513, 526 (1958) (citation
omitted).
Defendants licensing regime simply cannot be squared with the Courts opinion and order,
which anticipate ordinary people being able to access a right rooted in self-defense.
This Court is not alone in precluding the illusory licensing mechanism Defendants have
adopted. Three courts have struck down this level of licensing discretion as being incompatible with
a right to bear arms. Peruta, supra, 742 F.3d 1144; Schubert v. De Bard, 398 N.E.2d 1339 (Ind.
App. 1980); People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922). A fourth court indicated,
albeit in dicta, that such a licensing scheme would be unconstitutional. Mosby v. Devine, 851 A.2d
1031 (R.I. 2004). And although three courts have upheld may issue licensing schemes, one of
these agreed with Plaintiffs essential point that such a scheme is incompatible with the rights
existence. Compare Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (may issue scheme is evidence
that right was unknown) and Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (right to carry
assumed); Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012) (same).
Peruta addressed San Diego Countys good cause policy for the issuance of handgun
carry permits. Memorandum Decision & Order, Dkt. 51, at 9 n.2. The Peruta appellants place[d]
17
one argument at center stage . . . that by defining good cause in San Diego Countys permitting
scheme to exclude a general desire to carry for self-defense, the County impermissibly burdens their
Second Amendment right to bear arms. Peruta, 742 F.3d at 1149. Specifically, San Diego County
defined good cause as
[A] set of circumstances that distinguish the applicant from the mainstream and causes him
or her to be placed in harms way. Good cause is evaluated on an individual basis and
may arise in situations related to personal protection as well as those related to individual
businesses or occupations. Butimportant hereconcern for ones personal safety alone
is not considered good cause. . . . If the applicant cannot demonstrate circumstances that
distinguish [him] from the mainstream, then he will not qualify for a concealed-carry
permit.
Peruta, 742 F.3d at 1148. Given this requirement, the typical responsible, law-abiding citizen in
San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his
personal safetyby definitioncannot distinguish [himself] from the mainstream. Id. at
1169.
This Court held that Peruta addressed statutes very similar to the ones at issue in this case,
Memorandum Decision & Order, Dkt. 51, at 9, and indeed, there is no now practical daylight
between San Diego Countys good cause policies and Defendants good reason/special need
and proper reason guidelines. Moreover, in Peruta, as here, a license to carry a concealed
handgun was the exclusive legal mode of bearing arms. The legal regime, as a whole, did not cover
the scope of the right, which includes the right to carry in case of public confrontation . . . .
Peruta, 742 F.3d at 1169. The Second Amendment is, in effect, destroyed when exercise of the
right [to bear arms] is limited to a few people, in a few places, at a few times. Id. at 1170.
A statute which, under the pretence of regulating, amounts to a destruction of the right . . .
would be clearly unconstitutional. Id. (quoting Heller, 554 U.S. at 629); State v. Reid, 1 Ala. 612,
18
616-17 (1840). Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly
better than a near-total prohibition on bearing them (this case), and vice versa. Both go too far.
Peruta, 742 F.3d at 1170.
In Schubert, the Indiana Court of Appeals rejected a licensing officials claim that a
statutory proper reason requirement allowed him to reject handgun carry license applications for
an applicants insufficient self-defense interest. The court rejected the notion that the licensing
official had the power and duty to subjectively evaluate an assignment of self-defense as a reason
for desiring a license and the ability to grant or deny the license upon the basis of whether the
applicant needed to defend himself. Schubert, 398 N.E.2d at 1341.
Such an approach contravenes the essential nature of the constitutional guarantee. It would
supplant a right with a mere administrative privilege which might be withheld simply on the
basis that such matters as the use of firearms are better left to the organized military and
police forces even where defense of the individual citizen is involved.
Id. (footnote omitted).
In Zerillo, Michigans Supreme Court struck down a statute prohibiting aliens from
possessing revolvers without their Sheriffs consent. There, too, the licensing discretion was viewed
as a destruction of a constitutional right to bear arms. The exercise of a right guaranteed by the
Constitution cannot be made subject to the will of the sheriff. The part of the act under which the
prosecution was planted is not one of regulation but is one of prohibition and confiscation. Zerillo,
219 Mich. at 639, 189 N.W. at 928. The [provision] making it a crime for an unnaturalized,
foreign-born resident to possess a revolver, unless so permitted by the sheriff, contravenes the
guaranty of such right in the Constitution of the State and is void. Id. at 642, 189 N.W.2d at 928.
Albeit in dicta, Rhode Islands Supreme Court was in accord:
[T]his Court will not countenance any system of permitting . . . that would be committed to
the unfettered discretion of an executive agency. . . One does not need to be an expert in
19
American history to understand the fault inherent in a gun-permitting system that would
allow a licensing body carte blanche authority to decide who is worthy of carrying a
concealed weapon. The constitutional right to bear arms would be illusory, of course, if it
could be abrogated entirely on the basis of an unreviewable unrestricted licensing scheme.
Mosby, 851 A.2d at 1050.
The Third Circuits opinion upholding such a licensing regime is also instructive. Drake
reasoned that 1913 and 1924 state laws mirroring Defendants practice are longstanding and thus
evidence that the carrying of handguns itself falls outside the Second Amendments scope. Drake,
724 F.3d at 433-34. Of course, Drake cannot be right on this point. Constitutional rights are
enshrined with the scope they were understood to have when the people adopted them, whether or
not future legislatures or (yes) even future judges think that scope too broad. Heller, 554 U.S. at
634-35. But Drake is essentially correct in acknowledging that a justifiable need licensing
standard is not compatible with the concept of a right.
The notion that a right is destroyed, and thus violated, by schemes that allow authorities the
discretion to determine whether an individual is entitled to exercise the right, is hardly limited to the
right to bear arms. Recently, for example, Arizona barred abortion at 20 weeks of gestation absent a
doctors certificate of medical emergency, invoking documented risks to womens health and the
strong medical evidence that unborn children feel pain during an abortion at that gestational age.
Ariz. H.B. 2036 9(B)(1), (2012), available at http://www.azleg.gov/legtext/50leg/2r/bills/
hb2036s.pdf, archived at http://perma.cc/KA77-TMQ8 (last visited Oct. 1, 2014). The Ninth
Circuit did not defer to the legislatures oversight of the medical profession, or the expert medical
judgment of each doctor under the circumstances of each case.
Allowing a physician to decide if abortion is medically necessary is not the same as allowing
a woman to decide whether to carry her own pregnancy to term. Moreover, regulations
involve limitations as to the mode and manner of abortion, not preclusion of the choice to
terminate a pregnancy altogether.
20
Isaacson v. Horne, 716 F.3d 1213, 1217 (9th Cir. 2013).
Adapted to present circumstances, the holding would read:
Allowing Defendant Lanier to decide if carrying a handgun is necessary for self-defense is
not the same as allowing Amy McVey to decide whether to carry her handgun. Moreover,
regulations involve limitations as to the mode and manner of carrying handguns, not
preclusion of the choice to carry a handgun altogether.
The Ninth Circuit continued, explaining that [t]he presence of a medical exception does not
make an otherwise impermissible prohibition constitutional. The adequacy of the medical exception
has no bearing on whether the prohibition is permissible in the first place. Id. at 1227. Likewise,
here, the presence of a good reason exception does not make constitutional the prohibition on
bearing arms for the core purpose of self-defense. In Isaacson, a woman may not have had grounds
for a medical exception, but she had Supreme Court precedent securing post-20 week abortions.
Plaintiffs here plainly lack a good or proper reason, but they have a right to carry handguns for
self-defense. Of course, the D.C. City Council would never prohibit abortions in this manner (or
create databases to better ostracize and harass women who have had abortions), but that is only
because councilmembers personally favor that right.
III. DEFENDANTS REVIVED LICENSING REGIME IMPOSES AN IMPERMISSIBLE PRIOR RESTRAINT.
Although Peruta, Zerillo, Schubert, Mosby and Isaacson did not expressly say as much, the
common-sense proposition that a right becomes something else, of lesser stature, if it exists only at
the governments pleasure, has an established legal definition:
It is settled by a long line of recent decisions of this Court that an ordinance which . . . makes
the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the
uncontrolled will of an officialas by requiring a permit or license which may be granted or
withheld in the discretion of such officialis an unconstitutional censorship or prior
restraint upon the enjoyment of those freedoms.
Staub v. City of Baxley, 355 U.S. 313, 322 (1958) (citations omitted). Indeed, long before Heller,
21
Prof. Powe reasoned that [p]ossibly the Second Amendment can best be understood to incorporate a
common law rule against prior restraints. L.A. Powe, Jr., Guns, Words, and Constitutional
Interpretation, 38 Wm. & Mary L. Rev. 1311, 1384 (1997); see also id. at 1402 (the rule against
prior restraints offers a sound meaning [for the Second Amendment]).
Some authorities have erroneously asserted that prior restraint is exclusively a First
Amendment doctrine, and on that ground hesitated to extend it to the Second Amendment context.
See, e.g., Kachalsky, 701 F.3d at 91-92. But courts have already begun to adapt First Amendment
doctrine to the Second Amendment context. Ezell, 651 F.3d at 706-07 (citations omitted); see also
Parker v. District of Columbia, 478 F.3d 370, 399 (D.C. Cir. 2007). And as the right to bear arms
stands among the freedoms which the Constitution guarantees, Staub, 355 U.S. at 322,
Defendants good reason/proper reason requirement is among the impermissible illusory
constraints on licensing discretion amounting to little more than a high-sounding ideal. City of
Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769-70 (1988); see, e.g. Largent v.
Texas, 318 U.S. 418, 422 (1943) (striking down ordinance allowing speech permit where mayor
deems it proper or advisable). It is not that Plaintiffs merely dislike the standard. Plaintiffs
dislike the standard because it is meaningless, and effectively supplants their entitlement to
exercise a fundamental right for the purpose of self-defense with an administrative privilege
dispensed at the Chiefs boundless discretion.
The existence of standards does not in itself preclude a finding of unbridled discretion, for
the existence of discretion may turn on the looseness of the standards or the existence of a
condition that effectively renders the standards meaningless as to some or all persons subject
to the prior restraint.
Beal v. Stern, 184 F.3d 117, 126 n.6 (2d Cir. 1999).
22
IV. THE DISTRICTS LICENSING REGIME WOULD FAIL ANY LEVEL OF MEANS-ENDS SCRUTINY.
Assuming the revived licensing regime were subjected to the familiar two-step process, the
Court could not balance interests to determine whether there should be a right to bear arms.
Certainly the Court could not hold that a right inherently contradicts the public interest, the odd
implication of decisions such as Kachalsky and Woollard. While crediting the governments public
safety interest, the Court could not credit an interest in suppressing the right, as that would
essentially have the Court engage in the sort of interest-balancing Heller precluded. See Peruta, 742
F.3d at 1176-77.
Nor is the good reason/special need/proper reason regime adequately tailored to the public
safety rationale under any level of scrutiny. This licensing standard is not directed at dangerous
people, nor does it regulate the manner of carrying handguns, or impose any sensitive place
restrictions. It amounts to nothing more than a rationing system. See Peruta, 742 F.3d at 1177-78.
Courts have had little trouble striking down safety-based firearms laws that do not focus on
dangerousness. For example, the District of Massachusetts struck down a state law barring lawful
resident aliens from possessing guns regardless of whether intermediate scrutiny or strict scrutiny
applies. Fletcher v. Haas, 851 F. Supp. 2d 287, 303 (D. Mass. 2012).
[T]he statute here fails to distinguish between dangerous non-citizens and those non-citizens
who would pose no particular threat if allowed to possess handguns. Nor does it distinguish
between temporary non-immigrant residents and permanent residents. Any classification
based on the assumption that lawful permanent residents are categorically dangerous and
that all American citizens by contrast are trustworthy lacks even a reasonable basis.
Id. And applying strict scrutiny, the Eastern District of North Carolina struck down, inter alia, laws
barring handgun carrying during so-called states of emergency, finding the laws
do not target dangerous individuals or dangerous conduct. Nor do they seek to impose
reasonable time, place and manner restrictions by, for example, imposing a curfew to allow
the exercise of Second Amendment rights during circumscribed times. Rather, the statutes
23
here excessively intrude upon plaintiffs Second Amendment rights by effectively banning
them (and the public at large) from engaging in conduct that is at the very core of the Second
Amendment at a time when the need for self-defense may be at its very greatest . . . .
Bateman v. Perdue, 881 F. Supp. 2d 709, 716 (E.D.N.C. 2012).
Plaintiffs have no objection to standards that are actually aimed at ferreting out dangerous
and irresponsible people, and which do not trample on rights in the process of so doing. But
rationing the right only to those whom the Chief believes are especially deserving violates individual
rights without advancing any legitimate government interest.
V. THE COURT SHOULD ACCEPT THE CITY COUNCILS COMMITMENT TO OBSTRUCTING THE
RIGHT TO BEAR ARMS AT FACE VALUE.
Defendants could theoretically thread the jurisdictional needle in simultaneously arguing
that their recent legislation complies with the Courts order (although plainly it does not), while
preserving their right of appeal. On the latter point, they need only convince the D.C. Circuit that the
City Council would overturn its illusory licensing scheme at the first opportunity upon a successful
appeal. If the City Council has done anything, it has left a videotaped record replete with evidence
that this is precisely what it would do if given the chance. Northeastern Fla., 508 U.S. at 662 (citing
City of Mesquite v. Aladdins Castle, Inc., 455 U.S. 283, 289 (1982)); compare National Black
Police Assn v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) ([t]here is no evidence
in the record to suggest that the D.C. Council might repeal the new legislation and reenact strict
contribution limits. The Council has not announced such an intention) (citing Mesquite, 455
U.S. at 289 n.11).
But the City could have also maintained its appellate option by making the same vow upon
enacting a shall issue licensing scheme that complies with this Courts judgment. Defendants
unyielding hostility to the right to bear arms, and their commitment to appealing their loss here, only
24
serve to underscore their intent to obstruct and frustrate the carrying of defensive handguns to the
greatest possible extent. It is not difficult to view the illusory licensing regime in that light.
CONCLUSION
Defendants have failed to comply with this Courts judgment. By its own terms, the
injunction against enforcement of D.C. Code 22-4504(a), notwithstanding its technical
amendment, should remain in place. If the minor alterations to the enjoined provision require a new
injunction, that injunction should be issued now.
703.835.9085/Fax 703.997.7665
By: /s/ Alan Gura
Alan Gura
25
ENROLLED ORIGINAL

AN ACT

______________

IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

______________________

To amend, on an emergency basis, the Firearms Control Regulations Act of 1975 to permit
individuals to register a firearm for self-defense in their place of business, to provide a
Freedom of Information Act exception, to specify application requirements for applying
for a license to carry a concealed pistol, to specify the duration of such licenses and
requirements for renewal of licenses, to establish duties of licensees, to provide for
revocation of licenses, to create a criminal offense of carrying while impaired, to specify
prohibitions on licensees, to establish a Concealed Pistol Licensing Review Board, to
specify penalties for violations, and to require the Mayor to issue rules; and to amend An
Act To control the possession, sale, transfer, and use of pistols and other dangerous
weapons in the District of Columbia, to provide penalties, to prescribe rules of evidence,
and for other purposes to authorize the Chief of Police to issue licenses to carry a
concealed pistol to District residents and non-residents provided certain conditions are
met.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this
act may be cited as the License to Carry a Pistol Emergency Amendment Act of 2014.

Sec. 2. The Firearms Control Regulations Act of 1975, effective September 24, 1976
(D.C. Law 1-85; D.C. Official Code 7-2501.01 et seq.), is amended as follows:
(a) Section 201(b)(4) (D.C. Official Code 7-2502.01(b)(4)) is amended by striking the
phrase the home and inserting the phrase the home or place of business in its place.
(b) Section 202(a)(4)(C) (D.C. Official Code 7-2502.02(a)(4)(C)) is amended to read
as follows:
(C) Any person who seeks to register a pistol:
(1) For use in self-defense within that persons home or place of business; or
(2) As part of the application process for a license to carry a concealed pistol
pursuant to section 902; or.
(c) A new section 211a is added to read as follows:
Sec. 211a. Freedom of information exception.
Any record regarding individuals who have applied, received, or had revoked any
registration issued pursuant to this title shall not be made available as a public record under
section 202 of the Freedom of Information Act of 1976, effective March 25, 1977 (D.C. Law 1-
96; D.C. Official Code 2-532)..
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(d) Section 706(a) (D.C. Official Code 7-2507.06(a)) is amended by striking the phrase
Except as provided in sections 205, 208, 702, and 807 and inserting the phrase Except as
provided in sections 205, 208, 702, 807, and Title IX in its place.
(e) A new Title IX is added to read as follows:
TITLE IX LICENSES TO CARRY A PISTOL.
Sec. 901. Definitions.
For the purposes of this title, the term:
(1) Concealed pistol means a loaded or unloaded pistol carried on or about a
person entirely hidden from view of the public, or carried on or about a person in a vehicle in
such a way as it is entirely hidden from view of the public.
(2) Law enforcement officer means a sworn member of the Metropolitan
Police Department or of any other law enforcement agency operating and authorized to make
arrests in the District of Columbia, and includes any MPD reserve officer, any special police
officers appointed pursuant to section 202 of An Act Making appropriations to provide for the
expenses of the government of the District of Columbia for the fiscal year ending June thirtieth,
nineteen hundred, and for other purposes, approved March 3, 1899 (30 Stat. 1057; D.C. Official
Code 5-129.02), and campus and university special police officers appointed pursuant to the
College and University Campus Security Amendment Act of 1995, effective October 18, 1995
(D.C. Law 11-63; 6A DCMR 1200 et seq.).
(3) License means a license to carry a concealed pistol issued pursuant to
section 6 of the Pistols and Other Dangerous Weapons Act.
(4) Licensee means a person who has been issued a license pursuant to section
6 of the Pistols and Other Dangerous Weapons Act.
(5) MPD means the Metropolitan Police Department.
(6) Section 6 of the Pistols and Other Dangerous Weapons Act means section
6 of An Act To control the possession, sale, transfer, and use of pistols and other dangerous
weapons in the District of Columbia, to provide penalties, to prescribe rules of evidence, and for
other purposes, approved July 8, 1932 (47 Stat. 650; D.C. Official Code 22-4506).
Sec. 902. Application requirements.
(a) A person who submits an application pursuant to section 6 of the Pistols and Other
Dangerous Weapons Act shall certify and demonstrate to the satisfaction of the Chief that he or
she:
(1) Is at least 21 years of age;
(2) Meets all of the requirements for a person registering a firearm pursuant to
this act, and has obtained a registration certificate for the pistol that the person is applying to
carry concealed;
(3) Does not currently suffer nor has suffered in the previous 5 years from any
mental illness or condition that creates a substantial risk that he or she is a danger to himself or
herself or others;
(4) Has completed a firearms training course, or combination of courses,
conducted by an instructor (or instructors) certified by the Chief that includes at least 16 hours of
training, and covers the following:
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(A) Firearm safety;
(B) Firearm nomenclature;
(C) The basic principles of marksmanship;
(D) The care, cleaning, maintenance, loading, unloading, and storage of
pistols;
(E) Situational awareness, conflict management, and moral and ethical
decisions on the use of deadly force;
(F) Defensive pistol and ammunition selection; and
(G) All applicable District and federal firearms laws, including the
requirements of this act, An Act To control the possession, sale, transfer, and use of pistols and
other dangerous weapons in the District of Columbia, to provide penalties, to prescribe rules of
evidence, and for other purposes, approved July 8, 1932 (47 Stat. 650; D.C. Official Code 22-
4501 et seq.), and District law pertaining to self-defense;
(5) Has completed at least 2 hours of range training conducted by an instructor
certified by the Chief, including shooting a qualification course of 50 rounds of ammunition
from a maximum distance of 15 yards (45 feet); and
(6) Follows any procedures the Chief may establish by rule.
(b) An applicant shall satisfy the requirements of subsection (a)(4) and (5) of this
section with a certification from the firearms instructor that:
(1) The applicant demonstrated satisfactory completion of the requirement; and
(2) The applicant possesses the proper knowledge, skills, and attitude to carry a
concealed pistol.
(c) An applicant shall be exempt from the requirements of subsection (a)(4) and (5) of
this section if he or she has submitted evidence that he or she has received firearms training in
the United States military, or has otherwise completed firearms training conducted by a firearms
instructor that, as determined by the Chief, is equal to or greater than that required under
subsection (a)(4) and (5) of this section.
(d) A non-resident applicant for a license may satisfy any component of the
requirements of subsection (a)(4) and (5) of this section by demonstrating to the satisfaction of
the Chief that the applicant has met that particular component as part of a successful application
to carry a concealed pistol issued by the lawful authorities of any state or subdivision of the
United States.
(e)(1) An applicant shall sign an oath or affirmation attesting to the truth of all the
information required by section 6 of the Pistols and Other Dangerous Weapons Act and this
section.
(2) Any declaration, certificate, verification, or statement made for purposes of
an application for a license to carry a concealed pistol pursuant to this act shall be made under
penalty of perjury pursuant to section 401 of the District of Columbia Theft and White Collar
Crime Act of 1982, effective December 1, 1982 (D.C. Law 4-164; D.C. Official Code 22-
2402).
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(f) An applicant is required to appear for an in-person interview at the MPD
headquarters, for purposes including verification of the applicants identity and verification of
the information submitted as part of the application process for a license.
Sec. 903. Expiration and renewal of licenses.
(a) Licenses shall expire no later than 2 years after the date of issuance unless revoked
by the Chief or renewed pursuant to this title.
(b)(1) A licensee shall be eligible for renewal of a license if:
(A) The licensee continues to meet all of the initial standards and
application requirements set forth in section 6 of the Pistols and Other Dangerous Weapons Act
and section 902, except that with regard to section 902(a)(4), only 4 hours of such training shall
be required;
(B) With regard to section 902(a)(5), the licensee provides proof of 2
hours of range practice within the previous 12 months; and
(C) Follows any procedures the Chief may establish by rule.
(2) Timely renewal shall be the responsibility of the licensee, pursuant to any
procedures the Chief may establish by rule.
(3) A renewal license shall expire no later than 2 years after the date of issuance
unless revoked by the Chief or renewed pursuant to this act.
(c) Any person whose renewal application has been denied may, within 15 days of
notice of the denial, appeal to the Concealed Pistol Licensing Review Board established pursuant
to section 908.
Sec. 904. Duties of licensees.
(a) A licensee shall:
(1) Notify the Chief in writing of the loss, theft, or destruction of the license
(including the circumstances, if known) immediately upon discovery of such loss, theft, or
destruction; and
(2) Notify the Chief in writing within 30 days of a change in the licensees name
or address as it appears on the license.
(b) A licensee shall have on or about his or her person each time the pistol is carried in
the District of Columbia:
(1) The license; and
(2) The registration certificate for the pistol being carried, issued pursuant to this
act.
(c) If a law enforcement officer initiates an investigative stop of a person carrying a
concealed pistol pursuant to section 6 of the Pistols and Other Dangerous Weapons Act, the
person, and any other licensee who is with the person at the time of the investigative stop, shall:
(1) Disclose to the officer that he or she is carrying a concealed pistol pursuant
to section 6 of the Pistols and Other Dangerous Weapons Act;
(2) Present the license and registration certificate;
(3) Identify the location of the concealed pistol; and
4

ENROLLED ORIGINAL

(4) Comply with all lawful orders and directions from the officer, including
allowing a pat down of his or her person and permitting the law enforcement officer to take
possession of the pistol for so long as is necessary for the safety of the officer or the public.
(d) A licensee shall comply with all limits and conditions stated in the issuance of the
license.
(e) The duties set forth in this section are in addition to any other requirements imposed
by this act or applicable law.
(f) In addition to any other penalty provided by law, any person who violates subsection
(c) of this section shall be subject to revocation of his or her license.
Sec. 905. Revocation of licenses.
(a) The Chief may revoke a license upon a finding that the licensee no longer meets the
standards and requirements of section 6 of the Pistols and Other Dangerous Weapons Act and
this title, or as a penalty as specified in this act.
(b)(1) The United States Attorney for the District of Columbia, the Attorney General
for the District of Columbia, or any person may apply to the MPD at any time for revocation of a
license.
(2) Any person having knowledge that a licensee no longer meets the
requirements of this act or the requirements of section 6 of the Pistols and Other Dangerous
Weapons Act may so notify the Chief or any other law enforcement officer who may take such
action as may be appropriate.
(c) Any person whose license has been revoked may, within 15 days of notice of the
revocation, appeal to the Concealed Pistol Licensing Review Board established pursuant to
section 908.
Sec. 906. Carrying while impaired.
(a) A licensee may not carry a pistol while impaired.
(b) In addition to any other penalty provided by law, any person who violates this
section shall be subject to revocation of his or her license.
(c) Upon establishing reasonable suspicion that a licensee has been consuming drugs or
alcohol, a licensees failure to submit to one or more field sobriety, breathalyzer, or urine tests,
administered to determine whether the licensee is impaired while carrying a pistol, shall be
grounds for immediate revocation and seizure of the license.
(d) For the purposes of this section, the term impaired means a licensee has consumed
alcohol or a drug or a combination thereof and that it has affected the licensees behavior in a
way that can be perceived or noticed.
Sec. 907. Prohibitions on carrying licensed pistols.
(a) No person holding a license shall carry a pistol in the following locations or under
the following circumstances:
(1) Any building owned or under the control of the District of Columbia, its
agencies, and instrumentalities;
(2) The building and grounds, including any adjacent parking lot, of any public,
public charter, or private elementary or secondary school; or any public or private college or
university;
5

ENROLLED ORIGINAL

(3) Any pre-school or child care facility;
(4) Any public or private hospital, or other building where medical or mental
health services are the primary services provided;
(5) Any penal institution, secure juvenile residential facility, or halfway house;
(6) Any public transportation vehicle, including the Metrorail transit system, but
not including taxicab operators;
(7) Any premises or portion thereof, licensed under Title 25 of the District of
Columbia Official Code, where alcoholic beverages are served, or are sold and consumed on
premises, but not including premises with small-sample tasting permits issued pursuant to D.C.
Official Code 25-118;
(8) Any public gathering or special event conducted on property open to the
public that requires the issuance of a permit from the District or federal government or their
agencies or instrumentalities; provided, that no criminal penalty shall apply unless:
(A) The licensee has been advised by a law enforcement officer that
such a public gathering or special event is occurring; and
(B) The licensee has been ordered by the law enforcement officer to
leave the area of the special event or gathering until the licensee removes the pistol from his or
her possession in compliance with applicable law and the licensee has not complied with the
order;
(9) Any stadium or arena;
(10) The public memorials on the National Mall and along the Tidal Basin, and
any other area where firearms are prohibited under federal law or by a federal agency or entity;
(11) The area around the White House, namely: between Constitution Avenue,
N.W., and H Street, N.W., and between 15
th
Street, N.W., and 17
th
Street, N.W.;
(12) Within 1,000 feet, or other lesser distance designated by the Chief or his or
her designee, when a dignitary or high-ranking official of the United States or a state, local, or
foreign government is moving under the protection of the MPD, or other law enforcement
agency assisting or working in concert with MPD; provided, that no criminal penalty shall apply
unless:
(A) The licensee has been advised by a law enforcement officer that the
movement of a dignitary or official is occurring; and
leave the area of the movement until the licensee removes the pistol from his or her possession in
compliance with applicable law and the licensee has not complied with the order;
(13) Within 1,000 feet, or other lesser distance designated by the Chief or his or
her designee, of a demonstration in a public place; provided, that no criminal penalty shall apply
unless:
(A) The licensee has been advised by a law enforcement officer that a
demonstration is occurring at the public place; and
leave the area of the demonstration until the licensee removes the pistol from his or her
6

ENROLLED ORIGINAL

possession in compliance with applicable law and the licensee has not complied with the order;
and
(14) Any prohibited circumstance that the Chief determines by rule; provided,
that for spontaneous circumstances, no criminal penalty shall apply unless the licensee has notice
of the prohibition and has failed to comply.
(b)(1) Any private residence shall be presumed to prohibit the presence of concealed
pistols unless otherwise authorized by the property owner or person in control of the premises
and communicated personally to the licensee in advance of entry onto the residential property.
(2) For 90 days immediately following the effective date of the License to Carry
a Pistol Emergency Amendment Act of 2014, passed on emergency basis on September 23, 2014
(Enrolled version of Bill 20-926), for any private property not a residence, the owner or person in
control of the property shall be presumed to prohibit the presence of concealed pistols unless the
owner or person in control of the property authorizes entry by a licensee carrying a concealed
pistol; thereafter, for any private property not a residence, the owner or person in control of the
private property shall be presumed to permit a licensee carrying a concealed pistol to enter the
owners property unless the property is posted with conspicuous signage prohibiting concealed
pistols, or the owner or authorized agent communicates such prohibition personally to the
licensee.
(c) Whenever a licensee carries a concealed pistol and approaches any prohibited
location, or is subject to any prohibited circumstance, the licensee shall:
(1) If the licensee is in a vehicle or if a vehicle is readily available, immediately
secure the pistol in the manner prescribed in section 4b(b) of An Act To control the possession,
sale, transfer, and use of pistols and other dangerous weapons in the District of Columbia, to
provide penalties, to prescribe rules of evidence, and for other purposes, effective May 20, 2009
(D.C. Law 17-388; D.C. Official Code 22-4504.02(b) ); or
(2) If the licensee does not have a vehicle available, immediately leave the
prohibited location or circumstance.
(d) A licensee shall not be in violation of this section:
(1) While he or she is traveling along any public street, road, or highway
(including any adjacent public sidewalk) that touches the perimeter of any of the premises under
subsection (a) of this section or that are prohibited under subsection (b) of this section if the
concealed pistol is carried on his or her person in accordance with this act, or is being transported
by the licensee in accordance with section 4b of An Act To control the possession, sale, transfer,
and use of pistols and other dangerous weapons in the District of Columbia, to provide penalties,
to prescribe rules of evidence, and for other purposes, effective May 20, 2009 ( D.C. Law 17-
388; D.C. Official Code 22-4504.02); or
(2) While driving a vehicle into and immediately parking at any location listed
in subsection (a)(2) or (3) of this section, for the purpose of picking up or dropping off a minor
child; provided, that the licensee shall secure the concealed weapon in accordance with section
4b(b) of An Act To control the possession, sale, transfer, and use of pistols and other dangerous
weapons in the District of Columbia, to provide penalties, to prescribe rules of evidence, and for
7

ENROLLED ORIGINAL

other purposes, effective May 20, 2009 (D.C. Law 17-388; D.C. Official Code 22-4504.02(b)),
before leaving the parked vehicle.
(e) A licensee shall not carry a pistol openly or otherwise in a manner that is not
concealed.
(f) In addition to any other penalty provided by law, any person who violates this
section shall be subject to revocation of his or her license.
(g) For the purposes of this section, the term:
(1) Demonstration means one or more persons demonstrating, picketing,
speechmaking, marching, holding a vigil, or engaging in any other similar conduct that involves
the communication or expression of views or grievances and that has the effect, intent, or
propensity to attract a crowd or onlookers. The term demonstration does not include the casual
use of property by visitors or tourists that does not have the effect, intent, or propensity to attract
a crowd or onlookers.
(2) Public place means a place to which the general public has access and a
right to occupy for business, entertainment, or other lawful purpose. The term public place is
not limited to a place devoted solely to the uses of the public, and includes:
(A) The front or immediate area or parking lot of a store, restaurant,
tavern, shopping center, or other place of business;
(B) A public building, including its grounds and curtilage;
(C) A public parking lot;
(D) A public street, sidewalk, or right-of-way;
(E) A public park; and
(F) Other public grounds.
(3) Residence means an actual dwelling place or abode, and does not include
any adjacent common areas or commercial property..
Sec. 908. Concealed Pistol Licensing Review Board.
(a) There is established a Concealed Pistol Licensing Review Board (Board) for the
purpose of hearing appeals from:
(1) A denial of any application or renewal application for a license to carry a
concealed pistol in the District pursuant to this act; or
(2) A revocation of a license to carry a concealed pistol.
(b) The Boards membership shall be comprised as follows:
(1) A mental health professional employed by the Department of Behavioral
Health, appointed by the Mayor;
(2) A representative from the Office of the Attorney General for the District of
Columbia, appointed by the Attorney General for the District of Columbia;
(3) A representative from the United States Attorneys Office for the District of
Columbia (USAO), appointed by the United States Attorney for the District of Columbia. If
the USAO declines to provide a representative, the Mayor shall appoint a person who is a former
employee of the USAO;
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(4) The Chief Judge of the Superior Court of the District of Columbia or his or
her designee, or if the Chief Judge declines to serve or appoint a designee, a person appointed by
the Mayor who is a retired judge of the Superior Court of the District of Columbia; and
(5) One public member appointed by the Mayor, who shall be a current or
former sworn officer of a law enforcement agency other than the MPD.
(c) Each member shall serve a 4-year term.
(d) The initial terms shall begin on the date a majority of the members have been sworn
in, which shall become the anniversary date for all subsequent appointments.
(e) A vacancy on the Board shall be filled in the same manner in which the original
appointment was made.
(f) A Board member whose term has expired may continue to serve as a member until a
replacement member has been appointed.
(g) A member appointed to replace a member who has resigned, dies, or is no longer
able to serve (as determined by the Board) shall serve for the remainder of the unexpired term of
the member being replaced.
(h) The Board shall elect a chairperson by majority vote on an annual basis.
(i) Three members of the Board shall constitute a quorum, except that the Board may
only take official action when at least one of the following members is present:
(1) The representative from the Office of the Attorney General for the District of
Columbia designated pursuant to subsection (b)(2) of this section;
(2) The representative from the United States Attorneys Office for the District
of Columbia designated pursuant to subsection (b)(3) of this section; or
(3) The current or former sworn officer of a law enforcement agency other than
the MPD representative designated pursuant to subsection (b)(5) of this section.
(j) Members shall serve without compensation, but shall receive actual and necessary
expenses incurred in the performance of their official duties.
(k) The Mayor shall provide hearing facilities and administrative support for the Board
from existing resources for the current fiscal year.
(l)(1) Within 30 days after the date that a majority of the Board members are sworn in
pursuant to subsection (d) of this section, the Mayor, by rule, shall establish hearing procedures
for a contested case review of any appeal from a denial of an application or renewal application
for a license or revocation of a license, including procedures for the Board to assign panels of 3
Board members to conduct such hearings pursuant to subsection (i) of this section.
(2) The rules shall include that the burden of production of evidence, and the
burden of persuasion, at any hearing before the Board shall be upon the applicant or licensee that
is challenging any denial of an application or renewal application or revocation of a license.
(m) The meetings and hearings conducted by the Board shall be confidential and not
open to the public.
Sec. 909. Penalties.
(a)(1) Except as otherwise provided in this title, a person convicted of a violation of a
provision of this title, or rules or regulations issued under the authority of this title, shall be fined
not more than the amount set forth in section 101 of the Criminal Fine Proportionality
9

ENROLLED ORIGINAL

Amendment Act of 2012, effective June 11, 2013 (D.C. Law 19-317; D.C. Official Code 22-
3571.01), or imprisoned for not more than 180 days.
(2) Civil fines, penalties, and fees may be imposed as alternative sanctions for
any infraction of the provisions of this title, or any rules or regulations issued under the
authority of this title.
(b) All prosecutions for violations of this title shall be brought in the name of the
District of Columbia and prosecuted by the Office of the Attorney General for the District of
Columbia.
Sec. 910. Rules.
(a) The Chief of the Metropolitan Police Department, pursuant to Title I of the District
of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C.
Official Code 2-501 et seq.), shall, by October 22, 2014, issue rules to implement the
provisions of the License to Carry a Pistol Emergency Amendment Act of 2014, passed on
emergency basis on September 23, 2014 (Enrolled version of Bill 20-926), including rules:
(1) To establish criteria for determining when an applicant has, pursuant to
section 6 of the Pistols and Other Dangerous Weapons Act:
(A) Demonstrated a good reason to fear injury to his or her person,
which shall at a minimum require a showing of a special need for self-protection distinguishable
from the general community as supported by evidence of specific threats or previous attacks
which demonstrate a special danger to the applicants life;
(B) Demonstrated any other proper reason for carrying a concealed
pistol, which shall at a minimum include types of employment that require the handling of cash
or other valuable objects that may be transported upon the applicants person; and
(C) Demonstrated the applicants suitability to carry a concealed pistol,
which shall at a minimum include evidence that the applicant meets the requirements of section
902;
(2) To establish the type and amount of ammunition that may be carried
concealed by a licensee;
(3) To establish the methods by which a pistol may be carried, including any
standards for safe holstering;
(4) To establish all application forms, investigation procedures, background
checks, and fees necessary to process an application for a license to carry a concealed pistol;
(5) To specify any procedures or requirements specific to non-residents who
apply to carry a concealed pistol pursuant to section 6 of the Pistols and Other Dangerous
Weapons Act, with regard to the registration requirements in this act;
(6) To specify requirements for signage on any private premises where the
owner or person in control of the premises prohibits carrying concealed pistols, pursuant to
section 907(b); and
(7) To establish procedures for the renewal of licenses..

Sec. 3. An Act To control the possession, sale, transfer, and use of pistols and other
dangerous weapons in the District of Columbia, to provide penalties, to prescribe rules of
10

ENROLLED ORIGINAL

evidence, and for other purposes, approved July 8, 1932 (47 Stat. 650; D.C. Official Code 22-
4501 et seq.), is amended as follows:
(a) Section 4(a) (D.C. Official Code 22-4504(a)) is amended as follows:
(1) The lead-in language is amended as follows:
(A) Strike the phrase a pistol and insert the phrase a pistol, without a
license issued pursuant to District of Columbia law in its place.
(B) Strike the phrase capable of being so concealed.
(2) Paragraph (1) is amended by striking the phrase a pistol and inserting the
phrase a pistol, without a license issued therefor pursuant to District of Columbia law in its
place.
(b) Section 6 (D.C. Official Code 22-4506) is revived as of the effective date of the
License to Carry a Pistol Emergency Amendment Act of 2014, passed on emergency basis on
September 23, 2014 (Enrolled version of Bill 20-926), and is amended to read as follows:
Sec. 6. Issuance of a license to carry a pistol.
(a) The Chief of the Metropolitan Police Department (Chief) may, upon the
application of any person having a bona fide residence or place of business within the District of
Columbia, or of any person having a bona fide residence or place of business within the United
States and a license to carry a pistol concealed upon his or her person issued by the lawful
authorities of any State or subdivision of the United States, issue a license to such person to carry
a pistol concealed upon his or her person within the District of Columbia for not more than 2
years from the date of issue, 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, and that he or she
is a suitable person to be so licensed.
(b) A non-resident who lives in a state that does not require a license to carry a
concealed pistol may apply to the Chief for a license to carry a pistol concealed upon his or her
person within the District of Columbia for not more than 2 years from the date of issue;
provided, that he or she meets the same reasons and requirements set forth in subsection (a) of
this section.
(c) For any person issued a license pursuant to this section, or renewed pursuant to
section 903 of the Firearms Control Regulations Act of 1975, passed on emergency basis on
September 23, 2014 (Enrolled version of Bill 20-926), the Chief may limit the geographic area,
circumstances, or times of the day, week, month, or year in which the license is effective, and
may revoke the license for good cause.
(d) The application for a license to carry shall be on a form prescribed by the Chief.
The license shall be in a form prescribed by the Chief and shall bear the name, address,
description, photograph, and signature of the licensee.
(e) Any person whose application has been denied or license revoked may, within 15
days of notice of the denial, appeal to the Concealed Pistol Licensing Review Board established
pursuant to section 908 of the Firearms Control Regulations Act of 1975, passed on emergency
basis on September 23, 2014 (Enrolled version of Bill 20-926)..

11

ENROLLED ORIGINAL

Sec. 4. Applicability.
(a) Section 3(a) shall apply as of the effective date of this act to persons who have not
obtained a registration certificate pursuant to section 203 of the Firearms Control Regulations
Act of 1975, effective September 24, 1976 (D.C. Law 1-85; D.C. Official Code 7-2502.03),
and shall apply beginning on the date established by subsection (c) of this section to persons who
have obtained a registration certificate.
(b) The section 2(e) amendment adding a new section 910 of the Firearms Control
Regulations Act of 1975, passed on emergency basis on September 23, 2014 (Enrolled version of
Bill 20-926) (section 910), shall apply as of the effective date of this act.
(c) All other provisions of this act shall apply on the date that rules issued pursuant to
section 910 have become effective.

Sec. 5. Fiscal impact statement.
The Council adopts the fiscal impact statement of the Budget Director as the fiscal impact
statement required by section 602(c)(3) of the District of Columbia Home Rule Act, approved
December 24, 1973 (87 Stat. 813; D.C. Official Code 1-206.02(c)(3)).

Sec. 6. Effective date.
This act shall take effect following approval by the Mayor (or in the event of veto by the
Mayor, action by the Council to override the veto), and shall remain in effect for no longer than
90 days, as provided for emergency acts of the Council of the District of Columbia in section
412(a) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788;
D.C. Official Code 1-204.12(a)).

________________________________________
Chairman
Council of the District of Columbia

____________________________________
Mayor
District of Columbia
12

)
Plaintiffs, ) [PROPOSED] ORDER
)
v. )
)
)
Defendants. )
[PROPOSED] ORDER
This matter came before the Court on Plaintiffs Motion for Permanent Injunction.
The motion is GRANTED.
Defendants, their officers, agents, servants, employees, and all persons in active concert or
participation with them who receive actual notice of the injunction, are PERMANENTLY
ENJOINED from enforcing D.C. Code 22-4504(a), as amended following this Courts judgment
of July 29, 2014, unless and until such time as the District of Columbia adopts a licensing
mechanism consistent with constitutional standards enabling people to exercise their Second
Amendment right to bear arms.
Dated: __________, 2014
______________________________________
The Hon. Frederick J. Scullin, Jr.
United States District Judge

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