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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