Tuesday, August 19, 2014

More Time, Please...Because We Are Sensitive

The District of Columbia is arguing that they need more time beyond the original 90 day stay granted by Judge Frederick Scullin in the DC carry case, Palmer v. DC. First, they are arguing that if they decide to appeal the decision, they want the decision stayed throughout the appeal process. Second, if they forego the appeal, they want an additional 90 days in which to craft a carry law.

The District of Columbia in their brief (available here) argues that the judge erred in stating that the core right of the Second Amendment extends outside the home. Further, they argue that a good part of DC could be considered a sensitive area.

I found what they had to say interesting.
Thus, even assuming some form of public carrying of handguns is protected by the Second Amendment, it is not at the core of the right, and, accordingly, a court must examine the strength of the government’s justifications for its regulation, pursuant to intermediate scrutiny. See Heller II, 670 F.3d at 1252. The Court here did not do so, ignoring the many, important public safety and other reasons put forth for the District’s longstanding prohibition, many of which are unique to the District of Columbia, a state-level jurisdiction with an almost completely urban makeup that as the seat of the national government is home to the White House, the U.S. Capitol, dozens of federal agencies, and hundreds of international diplomats and has, over the years, experienced attempted as well as successful assassinations of Presidents and other officials of national importance using firearms. These and the other important public safety concerns will need to be considered by the D.C. Circuit in any appeal, and will present a serious question (even assuming the Circuit concludes a balancing test is necessary), one that is of first impression in this Circuit.
Of the two Presidents assassinated within the District of Columbia, Abraham Lincoln and James Garfield, neither had any sort of bodyguards or other security with them when they were murdered. Contrast that with the security cordon erected around modern presidents such as Barack Obama. I guess you could argue that Ford's Theater is a "sensitive site" given it is a National Historic Site run by the National Park Service.

That said, there are significant portions of the District that can in no way be considered sensitive.

For example, this corner at the intersection of Atlantic St and 14th St SE is considered one of the most dangerous spots in the US. You have a 1 in 14 change of being a crime victim here.

I fail to see how this "abandominium" as they are called by local DC housing activists could be considered sensitive even if it is owned by the DC government.

The argument that the majority of the District of Columbia is a sensitive place fails when you examine what's on the ground. I would have no disagreement with the argument that many DC neighborhoods have improved with gentrification. However, just because a neighborhood has gentrified, it doesn't make it a sensitive place. In my opinion, it may have made it a target for which the residents might need a firearm for protection both inside and outside their home.


  1. We knew this was coming... I couldn't get a soul to take my bet... sigh

  2. Remember that little part in our constitution about all men being equal, and the little blurb about no special laws for special people? Why should a politician in an elected republic get special treatment? They shouldn't, and come Oct. 23 I'll be taking a little side trip to DC. to show them they are no different than the rest of us.

  3. I'm actually quite happy about this. Because I predict DC is going to lose, and lose *hard* - especially with their especially weak arguments. And the appeals process means that the final ruling will affect more than just DC.

    This is why ATF rarely appeals determination losses -- the effect of nationwide precedent striking down their rulings is worse than just dropping the fight and being able to claim it was a unique situation that didn't invalidate their normal MO.