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Appeals court invalidates D.C.’s “good reason” constraint on public carry of firearms

Appeals court invalidates D.C.’s “good reason” constraint on public carry of firearms

D.C. Circuit Court grants permanent injunction against law that infringed “right to carry a gun in the face of ordinary self-defense needs”

Attorney Alan Gura has scored another huge win for civil rights in today’s Wrenn v. DC decision out of the United States Court of Appeals for the Federal District of Columbia Circuit (you know, the one Harry Reid blew up the fillibuster for in order to load it up with Progressive judges amenable to Obama’s “pen-and-a-phone” style of governance).

Wrenn v. DC, decided today, was a 2-1 decision by the Court of Appeals for the District of Columbia. The decision invalidates the District of Columbia’s prohibitionist “good reason” constraint on the lawful carry of arms in public for purposes of self-defense.

Circuit Judge Thomas B. Griffith (appointed by George W. Bush in 2005, 63 years old) and Senior Circuit Judge Stephen F. Williams (appointed by Ronald Reagan in 1986, 80 years old) signed off on the majority opinion, and Circuit Judge Karen L. Henderson (appointed by George H.W. Bush in 1990, 73 years old) wrote a dissent.

I present here a brief summary of the decision, which is embedded at the bottom of this post. I do, of course, urge you to read the decision itself.

The case involved a request by the plaintiffs for a preliminary injunction of DC’s “good-reason” law, which constrains the right to carry a firearm in public for personal self-defense, while the law was being challenged on the merits in District Court.

This “good reason” law requires that an applicant for a license to carry must show a “special need for self-protection distinguishable from the general community as supported by evidence of specific threats or pervious attacks that demonstrate a special danger to the applicant’s life. Two plaintiffs sought this preliminary injunction. Brian Wrenn and the Second Amendment Foundation, and Matthew Grace and the Pink Pistols, an organization that “champions the right of sexual minorities to carry guns for self-defense.”

One of the conditions for obtaining such a preliminary injunction is that the plaintiffs must show that they have a likelihood to prevail at trial, and that is where the court begins its analysis.

The court starts by determining whether the carrying of a firearm for self-defense outside the home is a “core” component of the Second Amendment. Naturally, DC claims it is not, citing from Heller that “the need for self-defense is most acute” in the home. The court observes, however, that

“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, and the need for that might arise beyond as well as within the home. Moreover, the Amendment’s text protects both the right to ‘bear’ as well as ‘keep’ arms. … This reading finds support in parts of Heller that speak louder than the Court’s aside about where the need for guns is ‘most acute’.”

The court then goes into an extensive analysis of both Heller’s historical analysis of the Second Amendment, and disposing of the District of Columbia’s specious historical arguments, ultimately concluding that the bearing of arms for self-defense in public is a “core” component of the Second Amendment.

Having so concluded, the court next explores what level of scrutiny should be applied to the “good-reason” law. For those unfamiliar, there are three levels of scrutiny relevant in this context, which the court describe succinctly:

“So-called rational-basis review requires the challenged law to bear a rational link to a legitimate public interest. Intermediate scrutiny looks for a substantial link to an important interest. And strict scrutiny demands that a law be narrowly tailored to a compelling public interest. “

As a practical matter, if in a challenge to a law either mere rational-basis or intermediate scrutiny is applied, the law almost invariably survives. If strict-scrutiny is applied, the law very often fails. In other words, choosing the level of scrutiny effectively determines the outcome of the debate. Naturally, the plaintiffs in this case are arguing in favor of strict scrutiny, whereas the District of Columbia is arguing for at most intermediate scrutiny.

Interestingly, the court entirely side-steps the debate about which level of scrutiny is appropriate in this case. They note that Heller ruled that:

“‘complete prohibition[s]’ of Second Amendment rights are always invalid. It’s appropriate to strike down such ‘total ban[s]’ without bothering to apply tiers of scrutiny because no such analysis could ever sanction obliterations of an enumerated constitutional rights.”

The court notes that the good-reason law naturally “isn’t a ‘total ban’ for the DC population as a whole,” but notes that this is not the correct question. The Second Amendment embodies not a group right, but an individual right. The correct question, then, is whether the good-reason law amounts to a ‘total ban’ for most DC resident’s individual ability to bear arms for self-defense. They conclude that it does.

“[T]he good-reason law is necessarily a total ban on most DC residents’ right to carry a gun in the face of ordinary self-defense needs” and that it does so “by design.” Further, “[b]ans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test that was appropriately written and applied, so we strike down the District’s law here apart from any particular balancing test.”

And this is where Attorney Alan Gura, et al., representing the plaintiffs hit their home run. They had sought a preliminary injunction temporarily suspending the good-reason law while litigation continued. What they got was the destruction of the law itself. As the court explains:

“Because the District’s good-reason law merits invalidation under Heller regardless of its precise benefits, we would be wasting judicial resources if we remanded for the [lower] court to develop the records in these cases. … We vacate both orders below and remand with instructions to render permanent injunctions against enforcement of the District’s good-reason law.”

Boom. Mike drop.

There is also a dissent by Circuit Judge Karen LeCraft Henderson. Just as I encourage that you “read the whole thing” with respect to the majority opinion, I also urge you to read the dissent. Under Judge Henderson’s view of the Second Amendment there is literally no restriction on the carrying of firearms in public for personal protection that could not be deemed Constitutional. The weakness of her arguments (addressed and gutted by the majority) and the “word-salad” nature of her decision shows how little intellectual rigor the gun controllers bring to these cases.

As promised, here’s the decision in full:

–-Andrew

Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.

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Comments

if only SCOTUS had taken on Peruta…

sigh.

    jeffweimer in reply to redc1c4. | July 25, 2017 at 6:36 pm

    Correct me if I’m wrong, but we now have a conflict with Peruta, and that might make the SCOTUS (finally) step in.

    Of course that it a huge risk and they might decide for “may issue” statues.

      Matthew Carberry in reply to jeffweimer. | July 25, 2017 at 8:41 pm

      Technically Moore out of the 7th is in conflict with Peruta in the 9th and the other Circuits, but it was the only one.

      If I recall correctly, this closes out all the Circuits, leaving two recognizing the Right and the others opposed

Bravo Gura. I’ve always detested that “Good Reason” constraint. It’s like you have to demonstrate to the government that you have a Good Reason to engage in free speech before they’ll ‘allow’ you to. Makes no sense.

    Tom Servo in reply to rdmdawg. | July 25, 2017 at 4:48 pm

    Oh, it makes perfect sense – if you’re a government that wants to find a way to get rid of a right that those pesky citizens keep reminding you that they have, it makes sense. And look how close it came to working completely.

    OleDirtyBarrister in reply to rdmdawg. | July 25, 2017 at 4:55 pm

    There is a clear tension between the holdings in Peruta and Wrenn, and Peruta came from an “unfavored” circuit known for being overruled. So one wonders if two circuits in conflict is enough for a grant of cert next term if D.C. pursues it. And I hope that D.C. fights it.

    Imagine trying to impose a “good reason” requirement on the Leftists favorite bloody sacrament of abortion, or the purchase of tools for abortion services. Or on their second favorite sacrament of sodomy and marriage of sodomists.

    Four members of SCOTUS did not/do not believe the Second says what it says or that the right to keep and bear arms is a foundational, formative value of the country. They believe that abortion, sodomy, and statism is more important.

inspectorudy | July 25, 2017 at 5:57 pm

Second, the District of Columbia is unique.
Heller III
, 801 F.3d at 283 (Henderson, J., concurring in part and dissenting in part). It is
the seat of our national government, “a city full
of high-level government officials, diplomats, monuments, parades, protests and demonstrations and, perhaps most pertinent, countless government buildings where citizens are almost universally prohibited from possessing firearms.

Id.
Accordingly, our analysis should reflect an appreciation of
“the unique challenges that confront the District as it struggles
to regulate firearms in our
Nation’s capital.”

Do you suppose this airhead didn’t hear about the shooting at the baseball fields? Whom does she think is going to protect all of these “Prominent” people? This is how the liberal mind works. The “Good” of the many replaces the good of the individual except in this case if only one of the Congressmen had been armed it might have ended much sooner or without Scalise being shot.

Speaking of word salad, proofread your first two paragraphs. Yikes!

What’s the history of this? Why did it take almost a decade after Heller for this challenge to get even to the appeals level?

    Rick the Curmudgeon in reply to clintack. | July 25, 2017 at 9:30 pm

    Isn’t this part of the process where a judge heard the case, then retired before handing down a decison; the case was re-heard and the judge sat on it for five years and a decision was handed down (after Gura filed two writs of mandamus)? Then a similar case with a favorable outcome, only to discover the judge wasn’t permitted to hear the case?

    Footdragging, anyone?

sjf_control | July 25, 2017 at 8:47 pm

“…evidence of specific threats or pervious attacks …”

Pervious attacks — attacks by perverts? 🙂

I thought there was one place in the United States where you could carry a Bowie knife it was Texas. Oddly enough it will finally be legal in September.

http://www.foxnews.com/politics/2017/07/11/texas-law-will-allow-open-carry-knives-swords.html

Finally! I have the cavalry sword to go with my horse.

And my Khukri.

Ayo Ghurkali!

http://dogbrothers.com/kostas/gurkhas.jpg

http://www.himalayan-imports.com/new.html

Why am I not surprised overgrown hippy, Deepak Gupta was there as an Amicus or Everytown..?

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