DC Concealed Carry Case Forum

[BillsFan9907]

I suspect I will be called on in class about this one. Could use some words of wisdom:

The DC district court overturned the DC law prohibiting concealed carry. The DC council is in the process of passing a new, may-issue law akin to those in MD, NY and NJ. The may-issue law, however, is for all intents and purposes a de facto no-issue law due to the near impossibility of obtaining a permit. The judge was tasked with determining whether the DC no-issue law was constitutional, not whether or not a hypothetical may-issue would be constitutional. This, however, is the situation we are now in. My question is this:

Can the judge reject the new DC law on the grounds that it does not go far enough in allowing concealed carry?

When Chicago's no-issue law was struck down, Illinois drafted legislation effectively rendering the state a shall-issue state. The Circuit Court obviously was not charged with ruling on the constitutionality of a hypothetical may-issue. Nonetheless, from the Court's reasoning on the issue at hand, it was pretty clear that the Court did not consider may-issue constitutional. The judge in the DC case utilizes the same fundamental argument as used in by the 7th Circuit.

[Tekrul]

After Heller and MacDonald:

There is case law supporting rejecting a may-issue law due to its de facto effect as no-issue: Peruta v. San Diego.

However, there is also support for upholding a may-issue law, despite its de facto effect as a no-issue: Drake v. Jerejian.

Also, for your reading pleasure: http://yalelawjournal.org/article/open- ... -amendment

The Supreme Court has denied cert on this circuit split for years (since Heller and MacDonald), and will continue to do so for the foreseeable future.

ETA: If you are called on in class about this, I would focus on the language of Heller and MacDonald for their ambiguity and say it could go either way based on the broad dicta or the narrow holding. I wouldn't bring up these cases, or any outside research, during a cold call.

[BillsFan9907]

After Heller and MacDonald:

There is case law supporting rejecting a may-issue law due to its de facto effect as no-issue: Peruta v. San Diego.

However, there is also support for upholding a may-issue law, despite its de facto effect as a no-issue: Drake v. Jerejian.

Also, for your reading pleasure: http://yalelawjournal.org/article/open- ... -amendment

The Supreme Court has denied cert on this circuit split for years (since Heller and MacDonald), and will continue to do so for the foreseeable future.

Thanks for this (especially this excellent article that I must have missed). I am well aware of the Circuit Court split. Here is my fundamental question: is the judge who issued the ruling allowed to strike down the proposed DC law, or would a second lawsuit be needed? DC will be presenting their law to the judge in late October. Technically, DC will no longer be a no-issue state even though it will be a de facto no-issue state. The lawsuit was over the fact that DC was a no-issue state. DC will argue "well, we resolved it. We are no longer a no-issue state, we are in full compliance." Can the judge strike this down even though the initial lawsuit (obviously) was not over the scope of DC's then non-existent may issue law?

[Tekrul]

I guess the context is unusual - the judge is overseeing the legislative process? I would have thought the court simply would have struck down the law, and the legislature would pass a new one without court involvement.

In any case, it is my understanding that a proposed statute does not equal a tangible harm, meaning a court will not have jurisdiction over it. Once the statute passes, a separate suit stemming from the actual harm of the statute can be brought.

But, in this strange context of the legislature proposing new statutes to the judge, I guess he can do whatever he damn well pleases since he's already aggrandizing AND encroaching on the legislative process.

[Holly Golightly]

Without knowing about the new case you're talking about, that sounds like it would be an advisory opinion, which is a big no no in the U.S.

[BillsFan9907]

I guess the context is unusual - the judge is overseeing the legislative process? I would have thought the court simply would have struck down the law, and the legislature would pass a new one without court involvement.

In any case, it is my understanding that a proposed statute does not equal a tangible harm, meaning a court will not have jurisdiction over it. Once the statute passes, a separate suit stemming from the actual harm of the statute can be brought.

But, in this strange context of the legislature proposing new statutes to the judge, I guess he can do whatever he damn well pleases since he's already aggrandizing AND encroaching on the legislative process.

Perhaps I did not word things right. DC was given until October 22 to pass a law that complies with his ruling. He issued a stay on his striking down DC's no carry law. There are strong arguments that the proposed law doesn't really comply with the ruling. In other words, the violation remains and will remain ongoing. What is the judge allowed to do in this instance? Do the plaintiffs have recourse to that same judge, or do they have to go and file a new lawsuit?

While a proposed statute does not amount to tangible harm, what about the general failure to comply with a judgment? From this perspective, it's not the new/proposed law being struck down per se, but rather a ruling by the judge that the unlawful situation has not been sufficiently corrected.