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Murder scene in DC. Via
Murder scene in DC. Via

Two cases being argued today before the D.C. Circuit Court of Appeals will address the question: if you lived in a neighborhood in which violent crimes were a daily occurrence, do you have the right to choose to carry a handgun for personal self-defense? The cases are Wrenn et al v. D.C. and Grace et al v. D.C..

kimber_blk_logo_smallFor some of us, the question is far from academic; I live in Michigan now, two blocks from Detroit (or, as some call it, “America’s Paris“). Fortunately the Wolverine State, despite the procedural and constitutional problems in its firearms laws, is a ‘shall-issue’ state. When the rubber hits the road, I can legally carry a firearm when I head out beyond the wire every day. Residents of the District of Columbia, however, aren’t so fortunate.

Not only does the District have a “may-issue” regime in place for firearms licenses (which was enacted, over much kicking and screaming, pursuant to a Court Order,) its bureaucrats have gone out of their way to deny the right of residents to choose to carry a pistol for the defense of themselves and their loved ones. Applicants for a D.C. firearms license must undergo a background check, complete an expensive and lengthy training course, register their handguns, and, according to the District’s concealed carry licensing law, demonstrate a “good reason” to “fear injury to himself or herself or property…or…have another proper reason for carrying a concealed pistol.”

As you, me, and M.C. Hammer want to know: what’s a “proper reason”?

Apparently, simply living in a crime-ridden metropolitan area where violent crime happens every night is most definitely not proper enough. As the District’s Concealed Carry Pistol License Application baldly states:

Pursuant to District of Columbia law, the fact that you live or work in a high crime area shall not by itself establish a good reason to fear injury to yourself or your property for the issuance of a concealed carry license.

Two parties have filed lawsuits against the District for infringing on their Second Amendment rights to keep and bear arms. Matthew Grace is a gun owner and member of the Pink Pistols (their motto: “We teach queers to shoot. Then we teach others that we have done so.”)

Grace and Pink Pistols argue that the District’s gun laws violate their constitutionally guaranteed civil right to carry a firearm in public. In May, the lower court agreed, ruling that the District’s gun law was unconstitutional, and imposing a preliminary injunction on DC’s carry permit regime.

The second case involved a plaintiff named Brian Wrenn and the Second Amendment Foundation. Wrenn made an argument along the same lines as Grace, but had his case decided by a different judge in March, who upheld the District’s legal regime.

Both cases were appealed to the D.C. Circuit Court of Appeals, a federal Appellate Court that only handles appeals concerning cases arising in the District.

Both plaintiffs have a heavy-hitting legal team. Grace and the Pink Pistols are represented by Charles Cooper, described by the Wall Street Journal as the NRA’s “go-to” attorney, while Wrenn and the SAF are represented by the famous Second Amendment champion Alan Gura.

Surprisingly, the District’s argument is grounded in legal history: when the Second Amendment was ratified, more than half the original states and the District itself banned carriage of firearms in markets, fairs, and other populated areas. These laws were supposedly patterned after the Statute of Northampton, a 1328 English law enacted by Edward III, decades before guns existed in England at all. As the WSJ reports:

The law expanded on a 1285 statute that made it a crime “to be found going or wandering about the Streets of [London], after Curfew…with Sword or Buckler, or other Arms for doing Mischief,” according to a brief filed in September by lawyers for Everytown, a gun-control group backed by former New York Mayor Michael Bloomberg.

For their part, the pro-Second Amendment legal team rejected this argument as being mere “historical revisionism”:

The ancient English statute permitted law-abiding citizens to carry common arms, barring only “dangerous and unusual” weapons wielded to terrify the public, according to Mr. Cooper’s August brief. The American laws influenced by the Statute of Northampton enumerated the same limits, he said.

The laws that followed in the 1800s, described by the D.C. government as precursors to the modern concealed-carry restrictions, operated “precisely in the opposite manner,” Mr. Gura wrote in a June brief. Gun owners could go armed even if others presented proof they were dangerous. They needed only pay a surety.

“Luminaries including George Washington, Thomas Jefferson, Patrick Henry and John Adams all publicly carried or at least advocated the public carrying of firearms,” Mr. Gura wrote.

There’s a funny thing about Bill of Rights: it contains language that’s kind of extreme.

“Congress shall make no law respecting the establishment of religion…or abridging the freedom of speech.” “The Right to Keep and Bear Arms shall not be infringed….” “[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation….”

When you read it, it seems pretty straightforward. Sure, application of laws and constitutional principles to real-world fact patterns is more of an art than it is engineering. Still, I’ve always suspected that judges have put a lot of play into the language over the years simply because they’re part of the government. And as such they’re incentivized both by their proximity to money and power — not to mention social pressure — to defend or increase government power wherever they can. The Bill of Rights reads like absolute commands and I believe they were always intended to be applied as such, without exceptions.

Why? The Bill of Rights, when drafted, were intended only to apply to the federal government. Sure, no laws respecting establishment or freedom of religion could be passed by Congress. The states? Have at it, guys. And they did: Connecticut had an established church until 1818. Massachusetts had an established church until the 1830s. New Hampshire had a religious test for office holders (Protestants only, please,) until the 1870s, a century after the nation’s birth.

So, sure, some states might have enacted gun control laws in the 18th century. A lot of them did so – as Clayton Cramer has described at length – to protect and preserve the noxious, peculiar institution of human chattel slavery. After the Civil War, the Fourteenth Amendment was ratified and the courts created the ‘incorporation’ doctrine based on that amendment’s due process clause, expanding parts of the Bill of Rights to cover state and local governments as well – finally incorporating the Second Amendment in 2011.

Naturally, I will gladly defer to (and salute) the expertise of Messrs. Gura and Cooper as to the likely winning arguments today. But the above is something to consider when contemplating the true irrelevance of antebellum gun control laws that plagued the some of the states in their earlier years.

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  1. I have no idea which way the Court of Appeals will land on this. But it would seem that a decision in favor of liberty could have a domino effect, bringing down “may issue” laws in the states that have them.

  2. we’re here because Kolar-Kotelly applied intermediate scrutiny, Leon applied strict scrutiny. appeals courts almost always determine 2A cases along the lines of intermediate scrutiny.

    we will lose these appeals.

    • Yes, generally they do. But here, at least one judge was clearly leaning to the conclusion that this ordinance failed because it made carry available in name only but not in practice, and that would not pass wither measure of scrutiny. And it seems he has at least one friend if not two to support that conclusion.

  3. Umm, a little late on the article. Oral argument was yesterday. The three judge panel consisted of three republican appointees, one of whom, Henderson, remained silent, while the other two were quite active in their questioning. I have not listened to the orals, but commentary from those who have suggests argument went very well for plaintiffs. For example, one judge noted that under the ordinance as written, a law abiding citizen living in the worst neighborhood in town would not qualify to carry unless first attacked, and asked the City to justify that result..

    Another inaccuracy in the article: these cases have not been heard on their merits. Rather, in both cases, plaintiffs sought preliminary injunctions against the enforcement of the district ordinance. One judge granted (Grace), the other (Wrenn) denied despite recognizing the serious flaws in the current law. So it is not as if the judge in Wrenn “upheld” the ordinance, he merely decided to maintain the status quo pending determination on the merits. The city appealed in Grace, the plaintiffs appealed in Wrenn.

    • Alas, articles don’t always make the publication roster immediately when they’re submitted.

      Points taken on your other criticism…. Thanks.

  4. “Pursuant to District of Columbia law, the fact that you live or work in a high crime area shall not by itself establish a good reason to fear injury to yourself or your property for the issuance of a concealed carry license.”

    So please…do tell what justification is needed, against a criminal wanting to do harm? How can I lawfully protect myself when there is NO duty for law enforcement to protect citizens? All public employees or elected officials must answer this question.

  5. The DC CCW law essentially requires that a permit requester be notifed well in advance by a bad guy that they intend to kill him or her.

    It renders the “right” to “bear” arms impotent. Just like Maryland’s similar law.

    • Agreed. However, Maryland’s law has been found to be constitutional and upheld, as have similar laws in other jurisdictions. Which is to say, the reasonable argument by itself does not warrant optimism for these cases this time.

      • The Maryland case was very poorly reasoned and most political. The State adduced no evidence in the Legislature to support the law, but none the less the Court held that it passed inspection on “public safety” grounds, which wsa no more than rational basis wrapped up in intermediate scrutiny language.

  6. “Gun owners could go armed even if others presented proof they were dangerous. They needed only pay a surety.” I’d like to see more of Gura’s reasoning here; as well as how these old laws read and were implemented. From what these 2 sentences say, it seems as if any law-abiding citizen could carry UNLESS his carry practice were complained against. If there were some complaint then a judge might require him to post a bond in order to continue carrying.
    If so, that scheme would seem to pass “intermediate scrutiny” whereas an outright ban at an official’s whim should not pass. It would be a win if the DC circuit made DC Shall-Issue with a requirement to post a bond. That would put pressure on NYC, MD, CA, HI, and a few states that won’t recognize out-of-state permits and won’t issue non-resident permits.
    Admittedly, the cost of the premium to the surety would constitute an infringement on a constitutional right. Nevertheless, we ought to consider 2 alternatives: 1) remaining in the status quo where these last 5 – 10 Won’t-Issue jurisdictions simply won’t grant any non-elite a permit; 2) a prohibition against Won’t-Issue without a provision for overcoming the official’s whim.
    The infringement is proportional to the amount of the premium. Gun owners (perhaps State-by-State) could form insurance companies (for-profit or mutual) to issue bonds at premiums that reflect the cost of defending occasional claims.

  7. “Gun owners could go armed even if others presented proof they were dangerous. They needed only pay a surety.”

    Danger! Danger, Will Robinson!

    They will cite that as an excuse and justification for concealed carriers to carry liability insurance.

    That no sane insurance carrier will offer for sale, because, you know… guns.

    Edit – Drat. MarkPA beat me to it, and with a better argument…

    • I wonder how much longer into the post-Trump world this somewhat libertarian / somewhat conservative political big tent where people who want to carry a concealed firearm and people who invest in and run large transnational corporations will continue to exist?


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