Lake Erie Conservative

thoughtful discussion(s) about issue(s)

Posts Tagged ‘shall issue’

… Our Nation ‘ s Capital has a Nasty Problem with its Gun Laws [#court case]…

Posted by paulfromwloh on Monday,May 30th,2016

.. they keep getting picked apart and rejected ..

.. this time the case is Grace v. D.C. . The plaintiff [Matt Grace] helps represents gun groups in D.C. on behalf of the Pink Pistols , a LGBTQ rights group dedicated to self – defense . Also , they got lucky on the choice of judges . They drew District Judge Richard Leon , who was a George W. Bush appointee . Then , how did the case turn out ?? ..

.. [h/t —]..
.. [link] to the blog post ..

.. for the most part , very well . Judge Leon ruled that D.C. must become a ” shall – issue ” jurisdiction , due to the precedent laid out in the Heller decision ..

The District’s Concealed Carry Scheme Is Likely Unconstitutional . . .

Strict Scrutiny Is Likely the Appropriate Level of Constitutional Scrutiny . . .

Because the Second Amendment’s text places the right to “keep” and to “bear” arms on equal footing, it follows that the right to “bear” arms for self-defense also lies at the core of the Second Amendment’s protections. Indeed, the purpose of the Second Amendment, as articulated by the Supreme Court, supports this conclusion. . . . The need for self-defense is, of course, greater outside the home than it is within it. . . . Furthermore, I note that plaintiffs here are the very type of “law-abiding, responsible citizens” whose Second Amendment rights are entitled to full protection under Heller.

The District’s “Good Reason” Requirement Imposes a Substantial Burden on Core Second Amendment Conduct. . . .

[T]he burden imposed by the statute at issue is [not] as insignificant as that of a “time, place, and manner restrictions” on speech that leave open “ample alternative channels of communication.” . . . Indeed, the requirement’s intended effect is to prohibit the typical citizen from carrying a firearm outside his or her home for several legitimate and constitutionally protected purposes — including when in dangerous neighborhoods, where the need for protection is as undeniable as it is unfortunate, or for self-defense from unanticipated, suddenly arising threats — notwithstanding the fact that he or she can successfully clear a multitude of qualifying hurdles. . . .

The District’s Concealed Carry Scheme Likely Fails Strict Scrutiny. . . .

[T]his Court agrees with defendants that the District’ s interest in public safety is implicated by people carrying guns in public, and certainly more so than when they keep guns within the confines of their homes. But, unfortunately for defendants, it does not automatically follow that the District has a compelling interest in reducing to the greatest extent possible the number of law-abiding, responsible citizens eligible to carry guns in public. Rather, when the District’s pursuit of public safety substantially burdens conduct protected by the Second Amendment, as issuing licenses only in certain self-defense situations does, it must at the very least prove that the policy achieves significant public safety gains and that those gains would not be achieved by a more inclusive licensing policy.

Defendants have failed to meet these criteria, and I am skeptical that they can. They waste much ink on the irrelevant contention that plaintiffs cannot prove that “more guns equals less crime.” In strict scrutiny review, however, defendants bear the burden of justifying their policy. More important still, defendants do not even attempt to explain why the District’s licensing scheme could not be broader and allow for more responsible, law-abiding citizens to obtain concealed carry permits for their legitimate self-defense needs, while simultaneously protecting public safety.

All they offer by way of reasoning is that all guns, even guns carried in self-defense, increase the incentive for criminals to carry guns, or increase the chances for accidents. But as plaintiffs rightly emphasize, “it is ‘not a permissible strategy’ to reduce the alleged negative effects of a constitutionally protected right by simply reducing the number of people exercising the right.”

Rather, the District’s licensing restrictions would only be narrowly tailored to achieve public safety if they were targeted at keeping guns away from the people who are likely to misuse them or situations where they are likely to be misused. On the record before me, I must agree with plaintiffs that defendants are unlikely to be able to show the “good reason” requirement is narrowly tailored to this end. . . .

Although the District’s “good reason” requirement likely does keep guns out of the hands of some people likely to misuse them, it does so only by keeping guns out of the hands of most people. . . . Because the District’s law is likely wholly disproportionate to the public interest it could legitimately serve, there is a strong likelihood plaintiffs will ultimately succeed in showing the law is not narrowly tailored and is, therefore, unconstitutional. . . .


In Heller, the Supreme Court’s unequivocally asserted that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” The District’s understandable, but overly zealous, desire to restrict the right to carry in public a firearm for self-defense to the smallest possible number of law-abiding, responsible citizens is exactly the type of policy choice the Justices had in mind.

Because the right to bear arms includes the right to carry firearms for self-defense both in and outside the home, I find that the District’s “good reason” requirement likely places an unconstitutional burden on this right. Accordingly, I hereby GRANT plaintiffs’ request for a preliminary injunction and enter an order that enjoins the District of Columbia from denying concealed carry licenses to applicants who meet all eligibility requirements other than the “good reason” requirement. . . .

Of course, I doubt that this will be the courts’ last word on the subject; I expect the decision will be stayed pending appeal to the District of Columbia Circuit, and from there it may well reach the Supreme Court, especially if the District of Columbia Circuit agrees that the D.C. carry restriction is unconstitutional. What will happen at the Supreme Court of course likely depends on what will happen in the political process in the next six months.

.. the District has a real problem . They will obviously want to appeal this one to the D.C. Appeals Court , which will give them precious time [and a presidential election] to stop it . However , the SCOTUS may well step in and take the case away from the appeals court , as it has done in several cases , recently ..

.. so , there is hope in D.C. for gun rights !! …

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… I was Right [9th Circuit Gun Case (Peruta v Cty of San Diego)]…

Posted by paulfromwloh on Friday,February 21st,2014

.. I picked up on this article , and this one comes from another legal blog that I like to follow , entitled the Volokh Conspiracy . It is well worth your while to look at and sample …

.. this 9th Circuit case is going to get wrapped into the New Jersey gun rights case , and both will make it to the United States Supreme Court . The full 9th Circuit might want to try to go ” en banc , ” but the Supremes will beat them to the punch , and take up the other case … it thus blocks any move against this one ….

.. Also , this one is usable in the circuit against Hawaii and California ‘ s much more odious gun laws . The district court judges may or may not respect it , but they have to follow it . Much more so when a 6-3 ruling comes down overturning the New Jersey gun law …

.. [h/t — Volokh Conspiracy]..

.. [link] to the blog post ..

Growth chart of right to carry

David Kopel

The chart below shows how Shall Issue laws for the licensed carrying of firearms for self-defense have become the American norm.

As of 1986, slightly less than 10% of the U.S. population lived in states where there were objective and fair procedures for the issuance of concealed handgun carry permits. About a third of the population lived in states where there was not even a process to apply for a permit. The majority of the population lived in states where issuance in permits was highly discretionary, and many issuing authorities refused to issue to ordinary law-abiding citizens.

By 2014, the percentage of people living in the Red states, with no possibility of even applying for a permit, has declined to zero. Illinois’ 2013 reforms ended the problem of states not even having a process theoretically available. (The problem persists in DC, but this chart is only for states.)

As of January 2014, about 2/3 of the population lived in a Green state, with a Shall Issue licensing statute.

Purple states (concealed carry is allowed without need for a permit) have increased from Vermont only in 1986 to several states comprising about 4% of the population. Currently, the Purple states are Alaska, Arizona, Arkansas, Vermont, and Wyoming (residents only).

The Yellow states (arbitrary permitting) were the national norm in 1986, but they are now outliers. Unless the 9th Circuits’ decision in Peruta is overturned, California and Hawaii will have to become Shall Issue states.

This will leave Yellow states at less than 1/7 of the U.S. population.

Moreover, some parts of the Yellow “may issue” states are already issuing permits as if they were Green. In New York, Massachusetts, Rhode Island, and Delaware, permits are issued by local authorities, and in some jurisdictions, local authorities issue in a manner consistent with respect for the right to bear arms. Permits are rarely issued in Maryland, and are extremely rare in New Jersey.

The six hold-out states are increasingly isolated. Not counting tiny Rhode Island and Delaware, the four larger hold-out states each are all bordered mainly by Green states. (Mass. by upper New England and Connecticut; NY by Penn., Vt., and Conn.; NJ by Penn.; Maryland by Penn., Vir., and WV). It should also be noted that in two of Delaware’s three counties, permit issuance is often approximately what a Green state would do.

Rhode Island is sui generis. There are two licensing statutes: a “may issue” statute for the Attorney General, and a “shall issue” state for municipalities. Getting a municipality to follow the statute and issue a permit may require great persistence, and even that is not always successful.

It is interesting to compare the above chart to the map showing the demise of laws against “sodomy” (oral or anal sex), between 1970 and 2003. On the eve of Lawrence v. Texas, there were still 13 states which had sodomy statutes.

Thanks to Rob Vance for gathering the data and producing the chart.

David Kopel
David Kopel is Research Director, Independence Institute, Denver, Colorado; Associate Policy Analyst, Cato Institute, Washington, D.C; and Adjunct professor of advanced constitutional law, Denver University, Sturm College of Law. He is author of 15 books and 90 scholarly journal articles.

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