Friday, September 29, 2017

Big Second Amendment Win in D.C. Circuit: No "en banc" Hearing for Wrenn

The U.S. District Court of Appeals for the District of Columbia has refused to grant a petition for an en banc hearing in the Wrenn v. D.C. Second Amendment case. The Court earlier ruled that the requirement for a "good cause" to issue a concealed carry permit was unconstitutional. In effect, this means in a week the District of Columbia will become a "shall issue" jurisdiction.  If a person meets the legal requirements for a concealed carry permit, the District of Columbia will be required to issue a permit.

None of the 10 Circuit judges capable of requesting a vote for an en banc hearing did so. From USCA Case #16-7067:
Garland, Chief Judge; Henderson, Rogers, Tatel, Griffith, Kavanaugh, Srinivasan, Millett, Pillard, and Wilkins*, Circuit Judges; Williams, Senior Circuit Judge
Upon consideration of the petitions of the District of Columbia, et al., for rehearing en banc, the joint response thereto; and the absence of a request by any member of the court for a vote; the motions of Everytown for Gun Safety for invitation to file briefs as amicus curiae in support of the petitions for rehearing en banc and the lodged briefs, it is ORDERED that the motions be granted. The Clerk is directed to file the lodged documents. It is FURTHER ORDERED that the petitions be denied.

* Circuit Judge Wilkins did not participate in these matters.

Circuit Judge Karen Henderson was on the three judge panel that heard the case. She was the dissenting opinion in Wrenn v. D.C.  She did not request an en banc hearing. Alan Gura, the prominent Second Amendment attorney, had this to say:
"Ten years ago, Washington D.C.'s political leadership tried to extinguish Second Amendment rights before the Supreme Court," noted attorney Alan Gura, who represents the plaintiffs. "The result was D.C. v. Heller, a tremendous victory for the rights of all Americans. With the court of appeals again confirming the people's right to bear arms, Washington, D.C.'s politicians must once again ask themselves whether it makes sense to keep resisting our fundamental rights."
The District of Columbia government has fought the exercise of Second Amendment rights in the District with all the power at its command. The legal options for the D.C. government are now very limited. Here is an excerpt from Wrenn that shows how strong the opinion is.  From Wrenn v. D.C.:

Our first question is whether the Amendment’s “core” extends to publicly carrying guns for self-defense. The District argues that it does not, citing Heller I’s observation that “the need for defense of self, family, and property is most acute” in the home. Id. at 628. But the fact that the need for self-defense is most pressing in the home doesn’t mean that self-defense at home is the only right at the Amendment’s core. After all, the Amendment’s “core lawful purpose” is self-defense, id. at 630, and the need for that might arise beyond as well as within the home. Moreover, the Amendment’s text protects the right to “bear”as well as “keep”arms. For both reasons, it’s more natural to view the Amendment’s core as including a law-abiding citizen’s right to carry common firearms for self-defense beyond the home (subject again to relevant “longstanding” regulations like bans on carrying “in sensitive places”). Id. at 626.
This reading finds support in parts of Heller I that speak louder than the Court’s aside about where the need for guns is “most acute.” That remark appears when Heller I turns to the particular ban on possession at issue there. By then the Court has spent over fifty pages giving independent and seemingly equal treatments to the right to “keep” and to “bear,” first defining those “phrases” and then teasing out their implications. See id. at 570-628. In that long preliminary analysis, the Court elaborates that to “bear” means to “‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id. at 584 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). That definition shows that the Amendment’s core must span, in the Court’s own words, the “right to possess and carry weapons in case of confrontation.” Id. at 592 (emphasis added).

The District of Columbia government can appeal the case to the Supreme Court. The Court has shown considerable reluctance to hear Second Amendment cases on the issue of bearing arms. The Supreme Court refused to hear the Peruta case from the Ninth Circuit in June of this year.

There is a clear split in the Circuits on whether Second Amendment rights extend beyond the home. The question seems absurd to those who have studied the history of the Second Amendment.  Ordinarily, the Supreme Court would be expected to hear a case to resolve the contradictory rulings. Second Amendment cases have been anything but ordinary.

There is a long history of state and local governments refusing to protect the right to bear arms. It started in the 1830's, when restrictions on the carry of concealed weapons were first upheld in some states, after the Supreme Court ruled that the Bill of Rights did not apply to state governments.

The issue was supposed to be settled with the 14th Amendment, after the War Between the States, in 1868. The Second Amendment was supposed to be protected for all citizens, including the recently freed slaves. It has taken nearly a hundred and fifty years to implement that protection.  The fight to do so continues.

The victory comes on the eve of the 32nd annual Gun Rights Policy Conference in Dallas, Texas. The event is co-sponsored by SAF and the Citizens Committee for the Right to Keep and Bear Arms.

It will be a hot topic among the attendees.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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Anonymous said...

Not one liberal member of the Appeals Court would request an en banc hearing? Seems strange. I wonder if they are hoping SCOTUS will take this case, before it gets more conservative members.

Anonymous said...

"Subject to the long standing regulations" What regulations have been more long standing than the 26 words of the second amendment? since when do constitutional amendments get changed by long standing regulations? This is the crux of the problem. Amendments are stand alone laws. they can not be changed by regulations. My argument is well founded in law. Judges do not have constitutional authority to interpret law. their authority is based on an unconstitutional ruling. the USSC has made a correct ruling that cuts their own throat. "If It Is Not Written It Does Not Exist" The authoi5y to interpret law must be written in the constitution and I guarantee you that authority is not written. The only constitutional way to change the second amendment is to pass and ratify an amendment. Laws, Acts and regulations are not ratified amendments. No one has the authority to add words to any part of the constitution. the Constitution must be enforced as written without bias or opinion or modified in any way short of a ratified amendment. Our constitution forbids judges from making law from the bench.

Dean Weingarten said...

"Our constitution forbids judges from making law from the bench."

Precisely. How do we enforce that?

The mechanism is to elect representatives and a President who will appoint justices with integrity. In addition, the representatives have the power to remove mis-behaving jurists.

These powers and mechanisms have been short circuited by the power of a unitary, "progressive" media.

How long would these "progressive" judges last if the New York Times and the rest of establishment media called for their impeachment?

Anonymous said...

If we had a national organization to monitor miss behaving judges that would demand removal from the bench when judges are caught violating their oath it would greatly improve the courts. the courts and the bar associations are certainly not policing themselves. public out cry needs to explode, corrupt judges in courts all over this country. I managed to help get one attorney disbarred. any one can be elected or appointed to a judgeship , FACT! they are not required to have a law degree. the oath of office requires them too uphold and enforce the law as written without bias or opinion and that eliminates interpretation. they are constitutionally required to enforce only the words actually written even when they disagree. by law they must have proper jurisdiction and if necessary they are required to recuse themselves. I have written to the president asking him to work on cleaning up the courts.