Exclusive: On-Again, Off-Again

The late-July decision by United States District Court Judge Frederick J. Scullin, Jr. to strike down Washington DC’s ban on carrying handguns was a long time coming. The case of Palmer v. District of Columbia, with attorney Alan Gura of Heller and McDonald fame again representing plaintiffs backed by the Second Amendment Foundation, had initially been filed back in August of 2009.

“In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny,” Judge Scullin wrote in his Memorandum-Decision Order. “Having reviewed the parties’ submissions and the applicable law … the Court hereby GRANTS Plaintiffs’ motion for summary judgment and DENIES Defendants’ cross-motion for summary judgment.”

He further ordered “that Defendants … are permanently enjoined from enforcing D.C. Code … to ban registration of handguns to be carried in public for self-defense by law-abiding citizens.”
The immediate reaction among the principals was jubilant.

“Great win,” SAF’s Alan Gottlieb wrote in an email to his distribution list, linking to Gura’s “Reality-Based Litigation” website announcement.

“Victory in Palmer v. D.C.,” Gura wrote. “Justice never sleeps … not even on a Saturday afternoon, when this opinion was just handed down.”

How To Implement

Not as happy was Chief Cathy L. Lanier of the Metropolitan Police Department, a longtime and staunch opponent of armed citizens who don’t have badges. The day after Scullin’s decision was handed down, she was compelled to issue orders to keep her troops from running afoul of the court’s order.

“Effective immediately, pursuant to the decision in Palmer … and the directive of the Attorney General of the District of Columbia, members of the Metropolitan Police Department shall not enforce D.C. Official Code … until further notice,” Lanier instructed via a teletype instruction to all members.

Included with that order were three sample scenarios to help District cops differentiate between newly-protected activities and those still prohibited. A D.C. resident carrying an unregistered firearm should be so charged. A Vermont resident with no criminal record would be free to leave (with the potential for further investigation), and a Virginia resident with felony convictions should be arrested for unlawful possession of a firearm.

There was one other caution made necessary by Scullin’s definitive order.

“[M]embers of the Firearms Registration Section are prohibited from refusing registration of handguns solely on the basis that the objective of the applicant is to carry the handgun in public for self-defense,” the impact statement warned.

The next day brought additional clarifying instructions from Lanier, issued “to assist members in making immediate enforcement decisions” pending resolution of legal issues. These were disseminated to the department via another official teletype and to the public through MPD’s Office of Communications.

The additional guidance noted “the ruling applies only to handguns,” and that it was still a criminal violation for citizen to carry long guns or shotguns. Emphasizing “that District residents may only possess legally registered firearms,” it nonetheless outlined an important caution that “possession of a firearm outside the home or business in and of itself may not be criminal.” The clarifying guidance included transporting firearms no longer being automatically criminal, and the communiqué provided a 24-hour guidance telephone line so that any member with enforcement questions could call legal staff for advice.

But Lanier and D.C. government didn’t just give up and fold. While these department-protective steps were being taken, legal staff was moving quickly to stall things. The city filed a request for a 180-day stay.

They didn’t have long to wait for a decision.

Judge Scullin ordered a 90-day stay, reflecting an agreement between plaintiff and defense counsels that “plaintiffs do not oppose a 90-day stay—starting immediately.”

MPD was quick to pounce.

“In light of the court issuing a stay of the Palmer v. District of Columbia order, Police Chief Cathy L. Lanier today issued a notice to members of the Metropolitan Police Department rescinding two teletypes related to firearms,” a media release explained. “All laws related to firearms regulation and crimes remain in effect.”

That was hardly unexpected by those familiar with the way contentious legal matters proceed, but nonetheless spurred activist gun owners to express disappointment, sarcasm and bitterness on online forums.

Inmates Running The Asylum?

“Stop me if I get this wrong,” one commenter remarked on the Gun Rights Examiner column announcing Lanier’s prior orders being rescinded following the granted stay. “A judge rules a law unconstitutional and then stays his own order striking it down. The inmates are running the asylum.”

“Or in other words ‘now I feel comfortable about breaking my oath again,’” another comment poster replied.

So what does this mean, where is Palmer heading, and how long do we need to wait to find out?

It’s been noted before that magazines, with production schedules necessitating article submissions months before the printed product hits the racks, are limited by that reality from providing timely coverage of developing issues. Case in point, as this column is being submitted, per court orders plaintiffs have three days to “file their opposition to Defendants’ motion for a stay.”

For their part, “Defendants may file a reply in further support of their motion for a stay pending appeal,” and have 10 more days from this writing in which to do it. And the timing of the stay means, barring anything else that comes up in between to throw another wrinkle (or wrench) into things, it should remain in effect until 9 days after this issue of GUNS Magazine goes on sale.

In the mean time, and after that, what should we expect?

“Though they won’t yet say how far they are willing to take their fight, District of Columbia officials plan to do everything in their power to limit the carrying of handguns in the nation’s capital, arguing that despite a court’s ruling that paves the way for more permissive laws, Washington is a unique place with heightened security concerns,” Roll Call reported, referencing officials who want to make things as restrictive as they can get away with, including Maryland-style “good and substantial reason” permit requirements. There’s still a “shall issue” vs. “may issue” conflict in the courts, and unless and until the Supreme Court resolves it, the restrictions can be severe. And that assumes the District Court is upheld.

“If they choose to appeal, the D.C. attorney general’s office believes it has unique and powerful arguments to make about why a ban on carrying is necessary,” the Roll Call article continued, citing their contention that the District, as “the seat of the federal government” should somehow get a pass on adherence to the Constitution!

How will Palmer end?

“I don’t know, I’m making this up as I go,” Indiana Jones admitted in Raiders of the Lost Ark. In some ways, this is more of a white-knuckle experience than any big-screen adventure he ever survived, because this is real, affecting real people, real lives and real rights, with real perils whenever freedom is off-again.
By David Codrea

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