Firearms Policy Coalition:

In today’s Wrenn v. District of Columbia decision (a related case, Grace v. District of Columbia, was consolidated with Wrenn on appeal), a lawsuit helmed by civil rights attorney Alan Gura and backed by the Second Amendment Foundation, the Court held in relevant part that D.C.’s “good-reason” handgun carry ban laws were unconstitutional:

Of course, the good-reason law isn’t a “total ban” for the D.C. population as a whole of the right to bear common arms under common circumstances. After all, it allows some D.C. residents—those with a special need—to defend against threats both common to everyone and specific to themselves.

But the ban on ownership struck down in Heller I also made “minor exceptions” for certain sorts of owners, who could then defend their homes to the hilt. 554 U.S. at 570 n.1. That made no difference to constitutional review of the ban, see id., for a simple reason: the point of the Amendment isn’t to ensure that some guns would find their way into D.C., but that guns would be available to each responsible citizen as a rule (i.e., at least to those no more prone to misuse that access than anyone else).

So if Heller I dictates a certain treatment of “total bans” on Second Amendment rights, that treatment must apply to total bans on carrying (or possession) by ordinarily situated individuals covered by the Amendment. 

This point brings into focus the legally decisive fact: the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen.

We say “necessarily” because the law destroys the ordinarily situated citizen’s right to bear arms not as a side effect of applying other, reasonable regulations (like those upheld in Heller II and Heller III), but by design: it looks precisely for needs “distinguishable” from those of the community.

So we needn’t pause to apply tiers of scrutiny, as if strong enough showings of public benefits could save this destruction of so many commonly situated D.C. residents’ constitutional right to bear common arms for self-defense in any fashion at all.

Bans 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. 

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So our approach, briefed by all the parties, is also urged by Heller I and coheres with Heller II. It’s narrower than any other basis for decision but not ad hoc.

And it would avoid suggesting what Heller I implicitly denies: that some public benefits could justify preventing people from exercising the law-abiding citizen’s right to bear arms for self-defense given the risk and needs typical of, well, law-abiding citizens. 

We pause to draw together all the pieces of our analysis: At the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense.

In fact, the Amendment’s core at a minimum shields the typically situated citizen’s ability to carry common arms generally.

The District’s good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That’s enough to sink this law under Heller I. 

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To watch the news for even a week in any major city is to give up any illusions about “the problem of handgun violence in this country.” Heller I, 554 U.S. at 570. The District has understandably sought to fight this scourge with every legal tool at its disposal.

For that long struggle against gun violence, you might see in today’s decision a defeat; you might see the opposite. To say whether it is one or the other is beyond our ken here.

We are bound to leave the District as much space to regulate as the Constitution allows—but no more. Just so, our opinion does little more than trace the boundaries laid in 1791 and flagged in Heller I. And the resulting decision rests on a rule so narrow that good-reason laws seem almost uniquely designed to defy it: that the law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun. 

We vacate both orders below and remand with instructions to enter permanent injunctions against enforcement of the District’s good-reason law.

Circuit Judge Karen Henderson dissented, arguing in a footnote that:

Although I assume that the Second Amendment extends to some extent beyond the home, I am certain the core Second Amendment right does not. The application of strict scrutiny—let alone my colleagues’ application of a categorical ban—is, in my view, patently off-base.

I’ve always thought that Scalia left much undone in his Heller decision, and the appeals court is doing his work for him in this ruling.  Perhaps Heller is all he could get the Supremes to agree to.

Unfortunately, however, this won’t be the end of it.  D.C. will come up with something equally unconstitutional, and I’ve noted before that similar federal courts have ruled in favor of “may-carry” laws in states such as New York, Massachusetts and Hawaii.  There is much more to come, and all of this confusion could have been avoided by a more robust Heller decision.

In the mean time, how dark for a person like Henderson, whose world and life view distinguishes between “to some extent” and “core.”  How sad and abusive towards other women who are left defenseless in the face of assault by her vacillation.

Glenn Reynolds also provides some links.