District of Columbia

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.