DC Won’t Appeal In Wrenn Case

It is being reported by District of Columbia new station WTOP that the Attorney General of DC has decided not to appeal the Court of Appeal’s decision in Wrenn v. DC. The decision overturned the District’s “good reason” requirement to obtain a carry permit. The last time the District of Columbia lost in a major Second Amendment case they appealed. That case was DC v. Heller.


From WTOP:

After days of consulting with the mayor’s office and city council members, D.C. Attorney General Karl Racine has reportedly decided not to fight a ruling that effectively strikes down the District’s strict law that makes it difficult for gun owners to get concealed carry permits.

Sources told WTOP’s broadcast news partner NBC Washington that Racine made the decision not to appeal to the U.S. Supreme Court and will formally make an announcement later on Thursday.

This cements the win for carry in DC. Conversely, an appeal to the Supreme Court might have provided the opportunity to overturn negative decisions on carry such Peruta in the 9th Circuit and Kalchalsky in the 2nd Circuit. Whether or not the Supreme Court will ever take up a carry case still remains to be seen.

H/T Sebastian

DC Asks For En Banc Hearing In Wrenn Case

In the name of the greatest people that have ever trod this earth, we draw the line in the dust and toss the gauntlet before the feet of gun violence, and we say gun control now, gun control tomorrow, gun control forever.

The quote above is actually a paraphrase of a line in the 1963 inaugural address of the late Alabama Gov. George Corley Wallace (D-AL). Wallace was talking about the segregation of the races. The absolutism shown by the District of Columbia on the matter of the right to keep and bear arms is strikingly similar to that of Wallace on race. However, unlike Wallace who publicly recanted his racist and segregationist positions, the District of Columbia Council shows no such inclination towards the Second Amendment and the right to keep and bear arms. Thus, it was no surprise that DC filed for an en banc hearing of the Wrenn decision which invalidated their “good reason” requirement for a carry permit.

The brief filed yesterday requesting an en banc rehearing attacks the majority decision on two fronts. First, they argue that they are a special place that is entirely urban and that contains many sensitive places like foreign embassies. They argue that the majority ignored the special needs of such a locale and then contend that their “good reason” may-issue carry law helps reduce crime and save lives. They cite a pantheon of anti-Second Amendment academics ranging from Saul Cornell to John Donohue as their evidence for this contention. They especially rely on the latter and ignore the criticism of his work due to “synthetic statistics”.

The second front of their attack on the majority decision is to say that it ignored historical precedent and the two-step process established in Heller I.

Rather than follow this well-worn path, the panel majority failed to conduct its own historical analysis at the first step, instead drawing assumptions from
Heller I’s historical analysis. Op. 14-17. And then the panel majority did not even proceed to the second step of the Second Amendment inquiry, mistakenly finding the District’s law categorically unconstitutional. Op. 25-29. These missteps departed from established precedent and warrant en banc review.

In this second front they also point out binding precedents in other circuits such as Kachalsky in the 2nd and Peruta in the 9th which ruled against shall-issue carry in the former or any carry in the latter. As to the 7th Circuit and the twin cases of Moore v. Madigan and Shepard v. Madigan which did find a right to carry outside the home, they cherry-picked from that decision.

They conclude:

Even if Heller I’s historical analysis did imply something about the scope of public carry in general, it did not hold anything about whether the pre-existing
right codified in the Second Amendment included a right to publicly carry firearms on crowded city streets in the nation’s capital with no particularized self-defense reason―let alone do so clearly enough to warrant the entry of judgment on appeal from a preliminary-injunction ruling. This Court should grant en banc review to correct the error and consider the District’s law using the appropriate analysis dictated by
Heller I, II, and III.

It is a toss-up to whether they will be granted the rehearing and also a toss-up on what the full panel of judges on the DC Circuit might decide. Given former President Obama’s stacking of the DC Circuit, we could very well see a decision like that of the 9th Circuit in Peruta where a win was nullified.

The Second Amendment Foundation, which is an organization plaintiff in the case, released a statement yesterday regarding the petition for an en banc rehearing. Quoting Alan Gottlieb, it said, in part:

“The Second Amendment Foundation expected the City of Washington, DC to file this appeal in an attempt to try to overturn our court victory that said their virtual ban on the right to carry a firearm for self-protection was unconstitutional,” said SAF founder and Executive Vice President Alan M. Gottlieb.

SAF has been battling the city over this issue for some time. The city has strenuously resisted these legal efforts, arguing in its latest petition that the city is “unique” because of its dense population that includes “thousands of high-ranking federal officials and international diplomats.” But earlier this summer, the District Court of Appeals majority opinion is that the “good reason” restriction violates the Second Amendment rights of citizens living in the district.

“They have no intention of complying with any court decision that supports the right to keep and bear arms,” Gottlieb said. “It took the Heller decision to force them to allow a gun in your own home for self-defense. It took the Palmer decision, another SAF case, to force them to repeal their total ban on carry and now they are kicking and screaming about losing the Wrenn decision.”

Gottlieb maintains that even if the District is “unique,” the citizens living there still retain their right to keep and bear arms under the Second Amendment. The city’s “good reason” requirement makes it far too easy to deny all but a few people their rights on the flimsy grounds that average citizens never have a good enough reason. The court recognized this problem and ruled against the District’s requirement, he noted.

“Municipal stubbornness cannot be allowed to outweigh the constitution,” Gottlieb said. “A civil right should not be subject to bureaucratic neurosis.”

I like that last line – a civil right should not be subject to bureaucratic neurosis.

Just How Are We Supposed To Do That In DC, Pray Tell, Chief Lanier?

Emily Miller, author of Emily Gets Her Gun and one of only 45 people in the District of Columbia with a carry permit, tweeted this yesterday afternoon.

It was in response to the interview with DC Police Chief Cathy Lanier by 60 Minutes. In the interview which dealt with active shooters, Lanier said that it was unreasonable to expect the police to arrive in time to stop most mass shootings. She told Anderson Cooper:

I always say if you can get out, getting out’s your first option, your best option. If you’re in a position to try and take the gunman down, to take the gunman out, it’s the best option for saving lives before police can get there. And that’s– you know, that’s kind of counterintuitive to what cops always tell people, right? We always tell people, “Don’t– you know, don’t take action. Call 911. Don’t intervene in the robbery”– you know– you know– we’ve never told people, “Take action.” It’s a different– this is a different scenario.

 You can see the full interview below which also includes comments by NYC Police Commissioner William Bratton.

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One Step Down, One To Go For Emily Miller

Emily Miller became the 15th person to be preliminarily approved for a carry permit in the District of Columbia. Metropolitan Police Chief Cathy Lanier approved Emily’s carry permit subject to her successfully completing an 18 hour approved training course training course within 45 days. Emily says she fully intends to complete the process but won’t say when or where she will actually carry.

Emily reported on this yesterday on DC’s Fox 5 News. Her permit was approved based upon her two police reports involving threats. Chief Lanier dismissed her other documented threat as being too general in nature.

DC News FOX 5 DC WTTG

Emily was also on Fox and Friends this morning discussing the carry permit.

Congratulations to Emily on this. If I had to guess, Chief Lanier considered not only the documented threats but the uproar that Emily could have generated if she wasn’t given a permit. Don’t get me wrong, I’m happy Emily got her permit but I have this gut feeling that your average person’s application would not have been given the same consideration.

I’m sure the ne’er do wells at the Coalition to Stop Gun Violence (sic) will want to start another petition to get Emily fired from her job as an investigative reporter at Fox 5. In the meantime, that wailing and gnashing of teeth in DC just might be coming from them.

“The Second Amendment Was For When The British Were Coming”

If I were a book publisher, I’d be offering Emily Miller a book contract right now. That’s because you know she has another one in the offing with the way she is being treated by the DC Police as she tries to get a DC carry permit.

The headline comes from what a DC police employee said to Ms. Miller regarding the Second Amendment. He said it really doesn’t apply to the District because it “was for when the British were coming.” You can’t make this stuff up.

Katie Pavlich gives her take on Ms. Miller’s travails here.

DC News FOX 5 DC WTTG

Chief Lanier’s Memo To Metro Officers (Updated)

Thanks to the efforts of the National Gun Rights Examiner David Codrea, we have the memo that District of Columbia Police Chief Cathy Lanier had sent out to all officers of the Metropolitan Police Department regarding carrying a pistol, either open or concealed, within the District.

UPDATE: David Codrea, the National Gun Rights Examiner, has an updated “official teletype” message from Chief Cathy Lanier that provides further guidance to the officers of the Metropolitan Police Department regarding the lawful carry of firearms outside the home in DC. This message goes into much greater detail than the earlier one issued on Sunday. While the District has officially requested a stay of the decision by Judge Scullin, it has not yet been granted as of early this morning.

Reading through the teletype, it is important to note that it only applies to handguns. The carry of a long gun such as a rifle or shotgun outside the home is still prohibited.

Given the fluidity of the legal situation, I’d be very careful if I were carrying in DC as a non-resident or even as a resident. The motion for the stay could be granted at any time which would probably return things to what they were before the decision. Or to use the full Latin phrase, status quo ante bellum. And yes, it is a war for our rights.

Update On Carry In DC (Updated)

Emily Miller had a post a few minutes ago on Facebook regarding enforcement of the now nullified carry prohibitions in the District of Columbia.


Per DC Police Chief Lanier, the only gun arrests allowed now are DC residents with unregistered guns and non-residents who are prohibited under federal laws from possessing firearms. Everyone else is in the clear.

This sounds like good news to those in metro DC.

You know, if you think about it, for the time being, Maryland residents have greater firearm freedoms in the District than they have in the so-called Free State.

UPDATE: Dave Kopel has an excellent post up at the Volokh Conspiracy on this along with some warnings about carry in DC. He suggests caution until an official pronouncement is made.

His long post also delves into the meaning of the win in Palmer. Tom Palmer, by the way, was one of the original plaintiffs in the case that became DC v. Heller when it reached the Supreme Court. He was dropped along the way due to standing issues by the US Court of Appeals for the District of Columbia.

All Animals Are Equal, But Some Are More Equal Than Others

Now more than ever we live in an Orwellian world. 

Thanks to Bitter at Shall Not Be Questioned for pointing out a story on TMZ regarding BATFE intervention on behalf of David Gregory and his illegal in DC 30-round magazine. It seems officials in Comrade Napolean’s, err, I mean President Obama’s ATF contacted the Metro PD on behalf of NBC and were told Gregory could “display” the magazine.

Well-placed law enforcement sources tell TMZ … a staffer from “Meet
the Press” called ATF before the show aired to inquire about the
legality of David holding the empty magazine during a segment on gun
control.  We’re told the ATF person contacted the D.C. police to find
out if the District of Columbia — the place where the show is broadcast
— had a law prohibiting such a display. 

Our sources say the
D.C. police official informed ATF David could legally show the magazine,
provided it was empty.  An ATF official then called the staffer from
“Meet the Press” to inform them they could use the magazine.

From a reader comment that Glenn Reynolds posted on Instapundit along with his response:

Reader Stephen Johnson emails: “ATF approval simply makes no sense.
The ATF has no jurisdiction over DC gun laws. And if, in fact, NBC news
called the ATF to ask ‘permission’ this just reinforces how stupid they
are about gun laws and jurisdiction. This story smells…. bad.” Hmm.
If D.C. were a state I’d be sure this was correct. But since it’s a
federal enclave I’m not sure.

Insofar as comments go regarding this matter, I do like the one from rickn8or at Say Uncle:

So if we get caught with anything illegal in DC, all we gotta do is tell the cop we want a “David Gregory”?

Unfortunately, I think one has to be a member of the national propaganda corps aka the mainstream media to be able to get a “David Gregory”. 

Interesting But Not The Best Of Ideas

By now you may have read about the DC Metropolitan Police Department’s active investigation into David Gregory. The host of NBC’s Meet the Press thought a 30 round AR magazine would make a cool prop to shake in the face of Wayne LaPierre this past Sunday. What Gregory didn’t think about was the DC law which forbids the mere possession of any magazine that is capable of holding more than 10 rounds. If he did think about the law, he obviously assumed it didn’t apply to “esteemed journalists” such as himself.

Now conservative attorney Aaron Walker is offering to defend Gregory on Second Amendment grounds in a challenge to the DC law. Walker, who blogs and tweets as “Aaron Worthing”, made the offer yesterday on Twitter. Twitchy has aggregated the tweets by Walker on the subject here. Walker is better known for the whole Brett Kimberlin saga.

While at first blush it sounds like a great idea challenging the DC law on Second Amendment grounds to get a gun hater off, in this case it is rather short sighted. As Alan Gura has pointed out many times in many venues, Second Amendment litigation needs to be strategic. Case law needs to built bit by bit and precedents set. It is a cumulative process where the success of the current case depends upon earlier positive precedents. This is the same process that Thurgood Marshall and the NAACP Legal Defense Fund used over time to defeat both de jure and de facto segregation by race.

The threat to this strategy comes from both criminal attorneys trying to use the Second Amendment to get crooks off the hook and misguided ideologues like Leonard Embody who represent themselves in court. I think defending David Gregory in a court of law on Second Amendment grounds would likewise be a threat to this strategy. While you and I may disagree, I think it highly unlikely at this time that a court would find the DC restrictions unreasonable and inconsistent with the Heller decision.

So I would say to Aaron Walker, while it sounds like a cool idea, don’t go there if you care at all about the Second Amendment.

A Good Start To The Month

Coming off the month of March in which he had wins at the District Court level in both the Woollard and Bateman cases, Alan Gura starts the month of April with news of a fee settlement with the District of Columbia for more than US District Court Judge Emmet Sullivan had awarded.

From BLT: The Blog of the Legal Times:

The attorneys who won the landmark D.C. gun case in the Supreme Court in 2008 have agreed to settle a legal fee dispute with the city for $1.5 million, terminating a dispute in a Washington federal appeals court.

The plaintiffs’ lawyers, including Alan Gura of Alexandria’s Gura & Possessky, who argued the high profile gun rights case in the Supreme Court, had sought more than the $1.17 million a trial judge awarded in December.

While I still think the District of Columbia is getting off cheap, I’m glad to see Alan Gura and Clark Neily finally getting paid for their years of work on the Heller case.

A spokesman for the city said they decided to settle to avoid the “uncertainties” of the appeals process. Given that first and foremost Alan is an appellate attorney, I think this probably was wise on the part of the city.