The Volokh Conspiracy
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The U.S. Court of Appeals for the District of Columbia Circuit has ruled that the District government must grant handgun carry licenses to D.C. residents on the same basis that carry permits are issued in most states. In particular, D.C. may not limit carry permits only to persons who prove a "special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant's life." Instead, D.C. must follow the standard American system: issuing permits to adults who pass a fingerprint-based background check and a safety training class.
The Circuit Court's opinion comes in a pair of cases: Wrenn v. District of Columbia and Matthew Grace and Pink Pistols v. District of Columbia. (Pink Pistols is a LGBT advocacy group that has played an important role in Second Amendment cases.) The opinion was written by Judge Thomas B. Griffith and joined by Senior Judge Stephen F. Williams. Judge Karen LeCraft Henderson dissented. The cases have a long and complicated procedural history; when Wrenn was before the D.C. Circuit in an earlier round, I participated in an amicus brief examining Anglo-American legal history on the right to carry.
Background: The right to bear arms has gone through the following developments in D.C. in the past decade:
2007 (pre-Heller)—License is required to carry arms, even to carry a firearm from one room to another in one's home.
2008 (Heller decision)—Supreme Court strikes down the D.C. handgun ban and the D.C. ban on having any functional firearm in the home. In the course of litigation, D.C. had promised that if the handgun ban were struck, then it would issue plaintiff Dick Heller a license to carry in his own home. Thus, the court stated, "We therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement."
2008 (post-Heller)—The D.C. Council repeals its handgun ban and enacts a new handgun registration ordinance. Once a handgun has been lawfully registered, no permission is needed to carry it inside the home. There is no provision for licensed carry outside the home.
2009-2016—In response to public criticism (e.g., Emily Miller's book "Emily Gets Her Gun") and litigation, the D.C. gun registration statute and its application are improved, from being dysfunctional to instead being exceptionally strict, but mostly functional. Meanwhile, new litigation, led by Heller's victorious attorney Alan Gura, engages the right to carry outside the home. In 2014, the D.C. law making it impossible to obtain a permit to carry outside the home is held unconstitutional. (Similar to an Illinois statute that was held unconstitutional by the 7th Circuit in 2012.)
Rather than appealing the decision, D.C. adopts a very narrow licensing law: Carry permits for outside the home will be issued only if there is a "good reason," defined to mean that the applicant has a "special need." After much procedural delay, the issue is finally decided on the merits on July 25, 2017. The district courts in Wrenn and Pink Pistols had split on whether the D.C. "special need" ordinance was constitutional. The Court of Appeals rules that the ordinances violates the Second Amendment.
Majority opinion: To begin with, the court finds that "the right to keep and bear Arms" includes the right not only to keep arms in the home but also to bear arms outside the home. Heller said so. So did the 19th-century cases favorably cited by Heller. They recognized a right to carry, and also upheld non-prohibitory regulations on the manner of carry. For example, the legislature may choose to require that arms be carried openly, rather than concealed. The few 19th-century cases that upheld carrying bans were all based on the flawed premise that the right to arms is only about the militia; since Heller dispelled that theory, the militia-only precedents are of little value.
Legal history: D.C. had argued that England's 1328 Statute of Northampton banned all arms-carrying, and this controls the meaning of the Second Amendment. (Several legal historians and I argued to the contrary, in the amicus brief cited above.) On the matter of English history, the D.C. Circuit found that "for every point there is an equal and opposite counterpoint." However, "the state of the law in Chaucer's England—or for that matter Shakespeare's or Cromwell's—is not decisive here." Instead, "the history showcased in Heller I contradicts the main scholar" (Patrick Charles) who contends that there is no right to carry. For example, Heller said that by the time of the English Bill of Rights in 1689, the right to arms included the right to "carry weapons in case of confrontation." Likewise, "James Wilson—early commentator, virtual coauthor of the Constitution, and member of the Supreme Court's first cohort," had explicated that "Founding-era Northampton laws banned only the carrying of 'dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.' "
D.C. had offered a second major argument that there is no meaningful right to bear arms: Based on the writings of Saul Cornell, D.C. contended that several 19th-century state "surety of the peace" statutes prohibited carrying in most circumstances. As the court pointed out, this argument was based on misreading the statutes. Under these statutes (the first of which was enacted in Massachusetts), anyone could carry arms. If someone else brought a civil case alleging that carrier was threatening to breach the peace, the carrier could be forced to post bond for good behavior. After posting bond, the carrier could go on carrying.
Thus, the District's historical arguments that there is no right to carry, or no right to carry in cities, were incorrect. To the contrary, "carrying beyond the home, even in populated areas, even without special need, falls within the Amendment's coverage, indeed within its core" (citing, among other authorities, Eugene Volokh's oft-cited "Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda," 56 U.C.L.A. L. Rev. 1443 (2009)).
Standard of review: In general, judicial review of a law that affects constitutional rights depends on what the law does. Laws that merely regulate the time, place or manner (e.g., no using loudspeakers in the park after 10 p.m.) received "intermediate scrutiny." Laws that regulate the content of speech (e.g., people can have parades for holidays, but not for political purposes) receive "strict scrutiny." Laws that destroy a right, or laws that discriminate based on the viewpoint of speech, are categorically unconstitutional (e.g., radio stations may praise the conduct of the war but may not criticize it).
The Heller case involved a handgun ban. Rather than applying strict or intermediate scrutiny, the Supreme Court held the ban to be categorically unconstitutional. Suppose that instead of banning handguns, D.C. had allowed handgun possession only by a "small minority with a special need to possess." The D.C. Circuit was doubtful that the Supreme Court would have upheld such a near-total ban. Indeed, the D.C. handgun ban had what the Supreme Court called "minor exceptions," but the Heller opinion said that the exceptions were not "relevant here." Instead, the Heller opinion recognized a general right to arms, not a right only for persons with a special need. Heller vindicates the rights of "those who possess common levels of need."
For almost all D.C. residents, the "special need" requirement amounts to a "total ban" on their right to bear arms. Hence, it is categorically unconstitutional, for the same reason that the total ban on handguns was held unconstitutional in Heller.
Dissent: Judge Henderson dissented, as she has in every previous case that has upheld a scintilla of Second Amendment rights. In the D.C. Circuit, the case that later became D.C. v. Heller in the Supreme Court was Parker v. D.C. While the majority held D.C.'s handgun ban unconstitutional, Judge Henderson invented the novel theory that because the Second Amendment says "the security of a free State," the Second Amendment does not apply in the District of Columbia. (This was refuted in Volokh, "Necessary to the Security of a Free State," 83 Notre Dame L.Rev. 1 (2007), which is cited in Heller; "free State" in this context means a free polity.)
Similarly, in Heller III, the D.C. Circuit majority upheld some D.C. registration requirements, while rejecting others, such as the requirement that registered guns must be re-registered every three years. The alleged purpose was to inform the police about lost or stolen guns, but D.C. already had a separate law requiring the reporting of lost or stolen guns. Judge Henderson would have upheld all of the D.C. registration ordinance.
In accord with opinions from the 2nd, 3rd and 4th Circuits, she argued that the right to arms outside the home is far from the core of the Second Amendment. Accordingly, no more than intermediate scrutiny should apply. Especially when considering the unique needs of the densely populated District, with it many security concerns, courts should defer to the D.C. Council's judgment that a near-total ban on carrying would promote public safety.
Conclusion: Lower federal court judges have varied widely in how rigorously they apply the Supreme Court's Heller decision. Some, like Judge Henderson, have opted for a very weak form of intermediate scrutiny (or even less) that will uphold just about every gun control other than a handgun ban. Others have applied a more vigorous review, and have found some (but certainly not all) gun controls to be unconstitutional. (For a survey of the decisions, see Kopel & Greenlee, "The Federal Circuits' Second Amendment Doctrines," 61 St. Louis U.L.J. 193 (2017).)
In my view, the Wrenn majority correctly followed Heller, which teaches that total bans (or 99 percent bans) applied to law-abiding citizens are categorically unconstitutional. Notably, the Wrenn decision acknowledges Heller's dictum that carrying may be prohibited "in sensitive places, such as schools and government buildings." Given the multitude of government buildings in the District, there are still many places where carrying may be prohibited. However, when a woman is walking at night from her apartment to an automobile parking lot, the District may not prohibit her from being able to defend herself.
As explained elsewhere in The Post, "The ruling from a three-judge panel gives city officials 30 days to decide whether to appeal for review by a full complement of D.C. Circuit judges. If the court does not agree to revisit the case sitting as an en banc panel, the order would take effect seven days later." After losing in Parker and Heller III, the D.C. attorney general petitioned for en banc review, which requires an affirmative vote by the majority of non-senior Judges. Neither petition was granted.