Big Second Amendment Win in D.C. Circuit: No "en banc" Hearing for Wrenn

The U.S. District Court of Appeals for the District of Columbia has refused to grant a petition for an en banc hearing in the Wrenn v. D.C. Second Amendment case. The Court earlier ruled that the requirement for a “good cause” to issue a concealed carry permit was unconstitutional. In effect, this means in a week the District of Columbia will become a “shall issue” jurisdiction.  If a person meets the legal requirements for a concealed carry permit, the District of Columbia will be required to issue a permit.

None of the 10 Circuit judges capable of requesting a vote for an en banc hearing did so. From USCA Case #16-7067:

Garland, Chief Judge; Henderson, Rogers, Tatel, Griffith, Kavanaugh, Srinivasan, Millett, Pillard, and Wilkins*, Circuit Judges; Williams, Senior Circuit Judge

* Circuit Judge Wilkins did not participate in these matters.

Circuit Judge Karen Henderson was on the three judge panel that heard the case. She was the dissenting opinion in Wrenn v. D.C.  She did not request an en banc hearing. Alan Gura, the prominent Second Amendment attorney, had this to say:

“Ten years ago, Washington D.C.’s political leadership tried to extinguish Second Amendment rights before the Supreme Court,” noted attorney Alan Gura, who represents the plaintiffs. “The result was D.C. v. Heller, a tremendous victory for the rights of all Americans. With the court of appeals again confirming the people’s right to bear arms, Washington, D.C.’s politicians must once again ask themselves whether it makes sense to keep resisting our fundamental rights.”

The District of Columbia government has fought the exercise of Second Amendment rights in the District with all the power at its command. The legal options for the D.C. government are now very limited. Here is an excerpt from Wrenn that shows how strong the opinion is.  From Wrenn v. D.C.:

Our first question is whether the Amendment’s “core” extends to publicly carrying guns for self-defense. The District argues that it does not, citing Heller I’s observation that “the need for defense of self, family, and property is most acute” in the home. Id. at 628. But the fact that the need for self-defense is most pressing in the home doesn’t mean that self-defense at home is the only right at the Amendment’s core. After all, the Amendment’s “core lawful purpose” is self-defense, id. at 630, and the need for that might arise beyond as well as within the home. Moreover, the Amendment’s text protects the right to “bear”as well as “keep”arms. For both reasons, it’s more natural to view the Amendment’s core as including a law-abiding citizen’s right to carry common firearms for self-defense beyond the home (subject again to relevant “longstanding” regulations like bans on carrying “in sensitive places”). Id. at 626.

This reading finds support in parts of Heller I that speak louder than the Court’s aside about where the need for guns is “most acute.” That remark appears when Heller I turns to the particular ban on possession at issue there. By then the Court has spent over fifty pages giving independent and seemingly equal treatments to the right to “keep” and to “bear,” first defining those “phrases” and then teasing out their implications. See id. at 570-628. In that long preliminary analysis, the Court elaborates that to “bear” means to “‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id. at 584 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). That definition shows that the Amendment’s core must span, in the Court’s own words, the “right to possess and carry weapons in case of confrontation.” Id. at 592 (emphasis added).

The District of Columbia government can appeal the case to the Supreme Court. The Court has shown considerable reluctance to hear Second Amendment cases on the issue of bearing arms. The Supreme Court refused to hear the Peruta case from the Ninth Circuit in June of this year.

There is a clear split in the Circuits on whether Second Amendment rights extend beyond the home. The question seems absurd to those who have studied the history of the Second Amendment.  Ordinarily, the Supreme Court would be expected to hear a case to resolve the contradictory rulings. Second Amendment cases have been anything but ordinary.

There is a long history of state and local governments refusing to protect the right to bear arms. It started in the 1830′s, when restrictions on the carry of concealed weapons were first upheld in some states, after the Supreme Court ruled that the Bill of Rights did not apply to state governments.

The issue was supposed to be settled with the 14th Amendment, after the War Between the States, in 1868. The Second Amendment was supposed to be protected for all citizens, including the recently freed slaves. It has taken nearly a hundred and fifty years to implement that protection.  The fight to do so continues.

The victory comes on the eve of the 32nd annual Gun Rights Policy Conference in Dallas, Texas. The event is co-sponsored by SAF and the Citizens Committee for the Right to Keep and Bear Arms.

It will be a hot topic among the attendees.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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