Members of Congress Have Little Right to Bear Arms on Capitol Hill

After last week’s riot at the Capitol, the acting House Sergeant-at-Arms implemented a new policy requiring House members to be screened for weapons before entering the House chamber.  On Tuesday, June 12, the U.S. Capitol Police declined to admit Rep. Lauren Boebert (R.-Colo.) to the floor of the House of Representatives after she refused to allow Capitol Police to inspect a bag she was carrying. Rep. Boebert protested on Twitter that she is “legally permitted to carry my firearm in Washington, D.C.[,] and within the Capitol complex.”  Rep. Madison Cawthorn (R.-NC) also claimed that he was armed during the riot.

These two freshmen are not the only Members of Congress who have firearms on Capitol Hill.  Earlier this year, Rep. Ken Buck (R.-Colo.) made news when he showed off an AR-15 rifle that he keeps in his office, telling “Joe Biden and Beto O’Rourke, if you want to take everyone’s AR-15s, why don’t you swing by my office in Washington, D.C. and start with this one?”

Joe Biden is unlikely to confiscate Rep. Buck’s AR-15; but the U.S. Attorney for the District of Columbia might.  At least two sets of laws govern the possession of weapons within the Capitol complex.  In 1967, Congress specifically prohibited the carrying of accessible weapons in all capitol buildings and grounds.  In addition to this federal law, the general criminal law of the District of Columbia applies to the Capitol complex.  The District has strict rules on firearms.  Among these, all firearms must be registered, some firearms cannot be lawfully registered  (e.g., certain semiautomatic firearms deemed “assault weapons”), ammunition magazines cannot exceed a 10-round capacity, the carrying of rifles and shotguns is prohibited, and the carrying of pistols is lawful only with a license to carry issued by the District of Columbia.  (As the signs at the Capitol office buildings warn visitors, the District does not recognize carry permits from other states.)  Even with a license, the District prohibits the carrying of pistols in many places, including the “U.S. Capitol buildings and grounds” and within 1,000 feet of a demonstration.

The 1967 federal law contained an exception for those “authorized by regulations which shall be promulgated by the Capitol Police Board.”  The Capitol Police Board regulations (Appendix J), in turn, provide that, “nothing contained in [the 1967 federal law] shall prohibit any Member of Congress from maintaining firearms within the confines of his office or any Member of Congress or any employee or agent of any Member of Congress from transporting within the Capitol Grounds firearms unloaded and securely wrapped.”  When Rep. Buck faced questions about the legality of his rifle, the Capitol Police pointed to this regulation to explain why his possession of the rifle was lawful.

But Capitol Police Board regulations do not authorize him—or any other Member of Congress—to possess firearms in violation of District law.  The Capitol Police Board regulations merely exempt certain people from the 1967 federal law.  On their face, they do not purport to confer a general authority to possess firearms in violation of District law.  Nor does the Capitol Police Board have the power to grant such an authority.  The 1967 federal law had a savings clause providing that “[n]one of the general laws of the United States and none of the laws of the District of Columbia shall be superseded by any provision of this Act.”  So while the Capitol Police Board regulations provide Members of Congress with a limited exception from the 1967 federal law governing weapons on Capitol grounds, they do not preempt the District’s general gun laws—which apply at the Capitol as they do elsewhere in the District.

Possession of an AR-15 rifle is unlawful in the District.  The District of Columbia’s statutory definition of “assault weapons” includes any semiautomatic rifle with a detachable magazine and a pistol grip.  These weapons cannot be registered in the District, and a person possessing such a firearm is subject to a misdemeanor prosecution for possession of an unregistered firearm.  Rep. Buck’s AR-15 has a pistol grip and a detachable magazine, so it fits within this definition.  Rep. Buck’s rifle also appeared to have a thirty-round magazine attached.  If so, Rep. Buck could be prosecuted for that, too.  The District of Columbia prohibits ammunition magazines that can accept more than 10 rounds, and in 2019, the District elevated the penalty for this crime from a misdemeanor to a felony.

Rep. Buck is correct that his possession of a rifle within his office is consistent with Capitol Police Board regulations.  So he could not be charged under the 1967 federal law with unlawfully possessing a firearm on Capitol Grounds.  But because the federal law did not supersede the District’s weapons laws, he still could be prosecuted for violating the District’s gun control laws.

Rep. Buck has also claimed that his rifle is “non-functional” because it “is lacking its bolt carrier group” (which contains the firing pin among other components) and has been equipped with a trigger lock.  But the District’s definition of firearm includes “any weapon, regardless of operability, which . . . [can be] readily converted, restored, or repaired, or is intended to, expel a projectile . . . by the action of an explosive” and includes “the frame or receiver of any such device.”  The removal of the bolt carrier group and the existence of the trigger lock will not remove his AR-15 from the District’s regulation of firearms.

What about Rep. Boebert and Cawthorn’s desire to carry pistols throughout the Capitol?  The Capitol Police Board regulations only permit Members of Congress to keep firearms in their offices and to transport unloaded and securely wrapped firearms elsewhere.  They do not permit the carrying of a loaded pistol outside a Member’s office.  The regulations further prohibit all persons (including those otherwise authorized to carry guns at the Capitol) from carrying any firearms inside the House or Senate chamber and some other adjacent spaces, “unless assigned or approved by the two Sergeants of Arms for maintenance of adequate security.”  So Members have no right to be on the floor with firearms, loaded or otherwise.  Members who violate the Capitol Police Board regulations could face federal prosecution under the 1967 federal law.

Even within a Member’s own office, District law imposes further restrictions.  Members’ weapons would have to be registered in the District of Columbia, and they could not have any high-capacity magazines.  Their ability to carry a pistol within their office is still questionable.  District law prohibits individuals with licenses from carrying concealed pistols in certain areas, including the Capitol buildings and grounds.  So Members could not rely on having a DC concealed carry permit to carry their weapons anywhere in the Capitol, including their offices.  Without a license, District law permits a person to carry a registered firearm in his “place of business.”  I’m not sure if the Members’ offices will count as their personal places of business.  If it is, then (and only then) could they carry loaded pistols in their offices.  But here again, Members have no authority to bear arms outside their offices.  Those who do could face prosecution under District law, either for carrying a pistol without a license or, if they were licensed, for carrying a firearm in a prohibited place.  Outside of their offices, Members may only transport firearms within the Capitol complex if they remain outside the House and Senate chambers (and surrounding areas), and if the firearms are unloaded and in a locked container (which would comply with both Capitol Police Board regulations, which require firearms to be unloaded and securely wrapped, and District law, which requires that the transporting container be locked).

If that were not enough, there is one further federal law complication.  A 1988 federal law (18 U.S.C. § 930) makes it a misdemeanor to possess a firearm in a federal facility, which is defined as “a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.”  The Capitol buildings likely fit within this definition.  (I am not aware of any charges brought under § 930 for possessing firearms in a capitol building—people are usually charged under the 1967 law or the District’s gun laws because they contain higher penalties.)  Section 930 has an exception for “the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.”  The scope of this section—especially as it applies to “other lawful purposes”—remains largely untested.  Federal courts would be unlikely to recognize, however, that it covers the carrying of loaded firearms for self-defense because such a broad exemption would largely negate the attempt in § 930(a) to generally prohibit weapons in federal buildings.  See United States v. De la Cruz-Bancroft, No. CR 09-MJ-319 JH/WDS, 2010 WL 8752034, at *2 (D.N.M. Jan. 4, 2010).  Nor is it clear how § 930’s general ban on firearms in federal facilities would interact with the specific 1967 law that Congress implemented for the Capitol.  A general rule of statutory construction is that specific laws prevail over general laws, so ordinarily one might think that the exception for Members of Congress in the 1967 law should prevail over the generic ban of firearms in federal facilities in § 930.  But the 1967 law states that it does not supersede any of the “general laws of the United States.”  The savings clause means that, even if Capitol Police Board regulations exempt Members under the 1967 law, it might not shield them from prosecution under § 930.

Finally, Members of Congress do not have any special right to break criminal law, ex officio.  While the Constitution affords Members of Congress a privilege from civil arrest “during their Attendance at the Session of their respective Houses,” that privilege does not apply to arrests for “Treason, Felony and Breach of the Peace”—a term of art that encompassed all crimes.  Nor could they rely on the Second Amendment’s right to bear arms.  Heller’s dicta, which lower courts have followed, state that governments may ban “the carrying of firearms in sensitive places such as schools and government buildings.”  The D.C. Circuit has already held that the Capitol complex is a quintessential sensitive place.

In the nineteenth century, it was not uncommon for Members of Congress to have pistols in their desks.  (Nor was it uncommon for other members to complain about their brethren who were armed with concealed weapons.)  In the twentieth century, John Dingell supposedly kept a hunting shotgun in a Capitol basement locker when he was a teenage congressional page.  But federal and District weapons law have become much stricter in recent decades.  Members of the general public routinely face felony prosecutions when they bring weapons to the Capitol complex.  Members of Congress are not above the laws they have enacted.  Except in very limited cases, they have no right to be armed on Capitol Hill.

The Supreme Court and the Current Public Carry Petitions: Open Splits and Concealed Vehicle Problems

In District of Columbia v. Heller, the Supreme Court recognized an individual right to keep and bear arms for self-defense.  Although the decision settled whether persons have a right to keep arms when they are not enrolled in an organized militia, the decision raised many follow-up questions.  Is the Second Amendment limited to keeping arms inside the home or is public carry also protected?  What standard of review should courts employ?  What arms are protected?  Since Heller, the Supreme Court has been mostly silent, leaving the lower courts to address these (and other) issues.

At present, perhaps the most politically sensitive question involves the constitutionality of restrictions on the public carry of firearms, whether open or concealed.  This issue is ripe for resolution.  Eight circuits have split three ways.  Their positions have become entrenched by stare decisis.  And the remaining four circuits are unlikely to produce any significant decisions because their states generally permit individuals to carry firearms.

The First, Second, Third, and Fourth Circuits have held that states may restrict all public carry to those citizens who can prove that they face a special danger.  These circuits have generally bracketed the issue of whether the Second Amendment applies beyond the home.  Assuming it does, these circuits have held that broad restrictions on public carry withstand intermediate scrutiny.  The Third Circuit has additionally held that New Jersey’s restriction on public carry was sufficiently longstanding that it did not “burden conduct within the scope of the Second Amendment’s guarantee.”

The D.C. Circuit has reached the opposite conclusion.  District law only permits individuals to carry concealed firearms with a license, and the District limits licenses to individuals who had “good reason to fear an injury to his or her person or property.”  Unlike the First, Second, Third, and Fourth Circuits, the D.C. Circuit enjoined the “good reason” requirement, holding that it violated the Second Amendment.

The Seventh Circuit struck down Illinois’s ban on publicly carrying loaded firearms for self-defense.  Although the Illinois case involved a complete ban on concealed and unconcealed firearms, the Seventh Circuit’s opinion strongly suggested that the court would not approve limiting public carry to those with a special need.

The Ninth Circuit has held that the Second Amendment, at most, protects the public carry of unconcealed weapons.  In a widely watched en banc decision, the court held that the Second Amendment does not grant a right to carry a concealed weapon under any circumstances.  Individuals who want to challenge a ban on public carry in that circuit may only raise a Second Amendment challenge to a jurisdiction’s restrictions on openly carried firearms.  (The Ninth Circuit has yet to rule on whether a general prohibition of openly carried firearms is constitutional.)  In an earlier case, the Tenth Circuit took a similar position in a challenge to a Colorado law limiting concealed handgun licenses to residents.

The public carry issue has not generally arisen in the Fifth, Sixth, Eighth, or Eleventh Circuits.  All jurisdictions in those circuits allow law-abiding citizens to obtain permits to carry concealed weapons, and most also allow individuals to carry firearms openly.  These circuits may face narrower public carry cases, such as the constitutionality of prohibitions on carrying weapons in specific locations (e.g., public parks).  But these circuits are unlikely to rule on a case involving a broad prohibition on public carry.

Not only has the circuit split on public carry become mature, there is also a conflict within at least one circuit.  The D.C. Court of Appeals (the local court) has steadfastly refused to accept the D.C. Circuit’s decision striking down its “good reason” requirement for a license to carry concealed firearms.  Like the Ninth Circuit, the D.C. Court of Appeals has held that the District of Columbia has plenary authority to regulate concealed weapons, and that any Second Amendment right to public carry, if it exists at all, is limited to weapons carried openly.  So litigants in the District of Columbia face different rules, depending on whether they are in federal or local court.  That itself is a strong reason to grant certiorari to resolve the public carry issue.

Yet, the Supreme Court has been content to let these splits fester.  The closest it has come to deciding a public carry case was granting certiorari in New York State Rifle & Pistol Association, Inc. v. City of New York.  That case raised the issue of whether New York City could ban licensed gun owners from transporting unloaded guns in locked containers to second homes and shooting ranges outside New York City.  New York City, faced with almost certain defeat in the Supreme Court, amended its regulation to allow the transportation of firearms outside the City, and the Supreme Court dismissed the case as moot.

For gun rights advocates, the mooting of the case was a significant blow.  Advocates had hoped the New York case would provide a springboard to challenge public carry restrictions.  And they had hoped to use the New York case to counter the trend in lower courts to review Second Amendment regulations under a deferential intermediate scrutiny standard.

The mooting of the New York case may have also frustrated the Supreme Court, albeit for the opposite reason.  The New York case offered an opportunity for the Supreme Court to address the lower courts’ narrowing of Heller, without forcing the Court to weigh in on the politically charged public carry issue directly.  The Court’s decision to take the case probably signaled that key justices wanted to take an incremental approach in Second Amendment cases.

While New York City prevented the Court from dipping its toes in the Second Amendment waters, there is reason to believe that a critical mass of justices is now ready to dive in.  Three justices (Alito, Gorsuch, and Thomas) dissented from the dismissal of the New York case.  A fourth, Justice Kavanaugh, wrote a concurrence to share his concern about lower courts narrowing Heller.  He thought that issue could be best addressed by taking another Second Amendment case on its docket.

Of those pending cases, six involve challenges to the constitutionally of public carry restrictions.  Five raise the constitutionality of a special need requirement to obtain a license to carry a firearm (three from New Jersey, one from Massachusetts, and one from Maryland).  The sixth challenges Illinois’s refusal to issue licenses to carry to most nonresidents.  The Ninth Circuit has additional cases in the wings seeking to invalidate open carry restrictions in Hawaii and California.

To resolve the circuit split, the Supreme Court should grant one of the petitions from New Jersey.  New Jersey does not offer any substantial avenue for individuals (other than active or retired law enforcement officers) to carry firearms outside the home.  For handguns, New Jersey law does not distinguish between open and concealed carry.  Both activities require the same handgun carry permit, which New Jersey strictly limits to those with a “justifiable need.”  New Jersey also generally does not permit individuals to carry loaded rifles or shotguns, nor does New Jersey have an emergency self-defense exception to its public carry laws.

In litigation, “may issue” states are often described as requiring the applicant to show some special danger apart from the regular community.  This description is an oversimplification.  The amount of special danger an applicant must show varies widely across jurisdictions.  At one end of the spectrum, many licensing officials in these jurisdictions ignore the need requirement and issue licenses on essentially a “shall issue” basis to qualified applicants.  At the other end are jurisdictions (e.g., San Francisco, California) that almost never issue licenses regardless of how much danger an applicant may face.  Between these extremes is a vast middle ground of jurisdictions that issue permits to applicants who demonstrate substantial need—for example, business owners who make nightly cash deposits.

New Jersey falls on the near-total-ban end of this spectrum.    New Jersey law requires a “justifiable need” to carry a handgun.  This standard requires “specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.”  The New Jersey Supreme Court has held that those engaged in high-risk professions do not have a justifiable need to carry a handgun.  The court, thus, has affirmed the denial of permits to a diamond dealer who carried loose diamonds and a theater manager making cash deposits, who may have been at significant risk for robbery.  New Jersey’s criteria are so strict that even applicants who face significant credible danger have difficulty securing permits, often requiring them to appeal from initial denials.  New Jersey’s justifiable need standard, thus, is close to a blanket ban.

Cases from more moderate discretionary jurisdictions could produce a muddled non-answer.  If the Court holds, in a non-New Jersey case, that the Second Amendment permits states to restrict public carry to those who have a special danger distinct from the general community, it will leave open the question of how much danger an application must face before he becomes constitutionally entitled to a license.  Does a license have to be available to business owners?  Residents of high-crime areas?  Victims of stalking or domestic violence?  Only those who face death threats?  From the experience after Heller, lower courts will likely defer to the various licensing agencies.  And because the amount of danger an applicant faces is fact-specific, the Supreme Court would be unlikely to intervene in any particular case.  In essence, this kind of decision would continue to encourage lower courts to “narrow from below.”

Unlike New Jersey, other states have more complicated legal regimes, which could result in a fragmented decision.  The only state stricter than New Jersey is Hawaii, which has not approved a single carry license for a private citizen (other than a security guard) since 2013.  But Hawaii has separate licensing for concealed and unconcealed weapons.  Even if five justices agreed that the Second Amendment required some form of public carry, they may not be able to agree on the remedy.  Historically minded justices may take the position that the Second Amendment protects only openly carried weapons (the majority nineteenth-century position).  Other justices may believe that states can choose whether to authorize open or concealed carry, as long as it provides one option.  The result could be a fragmented judgment on whether appropriate relief is to force Hawaii to issue a license for openly carried weapons or to let it choose which type of license to issue.

California’s carry laws create similar problems.  California’s carry laws defy easy summary.  But with some oversimplification, California has both a general ban on carrying firearms openly and a licensing requirement for concealed weapons that requires applicants to show “good cause.”  As with a Hawaii case, a California case could cause a narrow majority to split on the question of appropriate relief.  California’s laws also have several other nuances.  In rural areas, a person can get a permit to carry a firearm openly.  The prohibition against openly carrying firearms does not apply in some parts of unincorporated rural areas. And California has an emergency self-defense exception to its prohibition on carrying loaded firearms.  Some moderate justices may think that these narrow exceptions are constitutionally sufficient, which may detract from deciding the core issue.

Maryland’s carry laws also have peculiarities.  Maryland, like New Jersey, does not distinguish between open and concealed carry of handguns.  But Maryland has no general prohibition against openly carrying rifles and shotguns, whereas New Jersey does not leave citizens any accessible avenue to carry firearms of any kind.

The Illinois case is also a poor vehicle to decide the scope of the right to bear arms.  While Illinois generally prohibits nonresidents from getting a license to carry, Illinois law also permits nonresidents to carry weapons in their vehicles if they have a carry license from their state of residence.  New Jersey, in contrast, requires both residents and nonresidents to have a New Jersey permit, and the state makes it equally difficult for a nonresident to obtain one.  A New Jersey case, thus, would present the public carry issue in the most straightforward manner.

Finally, a New Jersey case would also be the hardest to moot.  California, Hawaii, Massachusetts, and New York issue permits at the local level.  In the face of a potentially adverse Supreme Court decision, the local licensing official could simply change his licensing criteria.  In fact, Hawaii officials may be in the process of shifting their licensing criteria to improve their chances of prevailing in a pending Ninth Circuit challenge to Hawaii’s open carry restrictions.  While Maryland issues permits at the state level, the state police have plenary power to decide what constitutes “good and substantial reason” to issue a carry permit.  They, too, could easily moot a case by expanding the criteria under which they issue permits.  New Jersey licensing officials lack this power.  The state’s strict “justifiable need” standard is codified into law and backed by numerous state supreme court decisions narrowly defining the term.  Moreover, New Jersey law gives both police and judges a role in issuing carry licenses.  While local New Jersey judges ultimately issue the licenses, either the local police chief or the state police superintendent must grant the preliminary approval.  If police chiefs unilaterally loosen their criteria, New Jersey judges will likely override their license approvals; and if state judges unilaterally try to issue more licenses over initial denials by police, the police chiefs can appeal their decision to issue licenses (and they usually prevail).  To moot Supreme Court review, the New Jersey legislature would likely have to change state law.  After the New York case, the Supreme Court should consider a Second Amendment petition that does not allow for easy gamesmanship by the parties.