Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
A federal appeals court considering the District’s strict laws for carrying concealed firearms was consumed Friday with the technical question of who should preside over the case.
Last spring, a visiting judge from upstate New York ordered the city to stop enforcing a provision of the District’s gun laws that requires a person to state a “good reason” to carry a firearm on the streets of the nation’s capital. U.S. District Court Judge Frederick J. Scullin Jr. said the provision “impinges” on the Second Amendment right to bear arms.
The debate Friday at the U.S. Court of Appeals for the D.C. Circuit focused not on whether Scullin’s preliminary injunction was properly decided, but whether the visiting judge had authority to preside over the case.
Scullin was initially appointed in 2011 to help with a backlog at the federal courthouse, including an earlier case that challenged the city’s outright ban on carrying firearms in public. The D.C. attorney general’s office said Scullin’s authority ended with the first case.
Deputy Solicitor General Loren L. AliKhan said in court Friday that Scullin’s order over the “good reason” requirement was “void” because his authority had lapsed. She asked the three-judge panel to send the case back to District Court to have it reassigned to a D.C.-based judge.
There is an “interest in local cases being decided by local judges,” AliKhan told the three-judge panel made up of Cornelia T.L. Pillard, David B. Sentelle and Laurence H. Silberman.
Pillard noted that judges routinely take on related cases to deal efficiently with the court’s work and that it “seems quite consistent.”
Attorney Alan Gura, who represents members of the nonprofit Second Amendment Foundation who brought the case, said Scullin’s appointment was not “time-limited” and that the city had failed to flag that as a concern when the case began.
The question of judicial authority was first raised in September by the appellate court.
The city has filed a separate motion in District Court to have the case reassigned.
Gura said Friday that Scullin had an “absolute obligation” to take the related case even without an additional authorization from U.S. Chief Justice John G. Roberts Jr., who makes such designations. Gura suggested to the three-judge panel that he could request an order to retroactively assign Scullin to the case because the judge met all other requirements for serving.
At least two of the judges seemed skeptical. “Nobody got one, did they?” Sentelle asked.
“It’s a little late for that now,” Silberman said.
Gura said after oral arguments that he would consider requesting such an order. “It’s not like he was somebody off the street,” Gura said of Scullin.
Gura’s challenge to the District’s gun regulations is one of many similar lawsuits throughout the country that followed the Supreme Court’s 2008 decision declaring an individual right to own a firearm.
[Washington Post poll shows D.C. residents divided over complete gun ban]
There was brief discussion Friday about the substance of the District’s public-carry law. The law leaves it to police to license only individuals who have shown “good reason to fear injury” that is supported by “evidence of specific threats or previous attacks.”
The appellate court overturned Scullin’s preliminary injunction in June, allowing the city to enforce its rules until a final decision is reached about whether the law is constitutional.
In making the case for the District’s strict regulations, government lawyers have said that the rules are appropriate for the city’s crowded streets.
Silberman said Friday that he was “puzzled as to how you draw a line” in a jurisdiction that has both urban and suburban neighborhoods. “You can’t draw a line,” he said.
AliKhan, the government’s lawyer, pointed to early English and American laws that she said allowed for such strict regulations and noted similar laws in Maryland, New York and New Jersey.
The case over the District’s gun-control laws is being heard as many of the nation’s cities, including Washington, have experienced a surge in fatal shootings and as D.C. residents have identified crime as the biggest problem in the city.
In a new Washington Post poll, 51 percent of D.C. residents said they favor the reinstatement of a ban on gun ownership that was ruled unconstitutional by the Supreme Court in 2008. Almost as many, 47 percent, oppose the idea.