Ed Morrissey covered the decision in Wrenn vs DC yesterday, but I think there’s another element to this story worth looking at. First, let’s look at the “good reason” aspect of the decision. (Free Beacon)
In a 2-to-1 ruling the U.S. Court of Appeals for the D.C. Circuit said the city’s requirement that those who apply for a gun-carry permit must show “good reason” beyond the desire for self-defense or residence in a high-crime area before being granted one runs afoul of the Second Amendment. The court said the Constitution guarantees a right to carry a firearm for self-protection for the law-abiding, even outside of the home. The ruling is the latest in a series of federal court rulings rebuking the nation’s capital for unconstitutional gun laws that stretch back more than a decade and include a half dozen decisions against the city.
“Reading the Amendment, applying Heller I’s reasoning, and crediting key early sources, we conclude: the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment’s protections,” Judge Thomas Griffith wrote for the majority.
I agree that this sounds like great news for the Second Amendment at first glance, but there is some worrying history behind this phase of the proceedings. This is how Ed saw that portion of it:
Of course, the city can appeal this decision to the Supreme Court. It seems unlikely to get cert, however, as the justices have avoided dealing with this issue unless there is a split in the circuits, and that doesn’t appear to be the case. Alternately they can appeal for an en banc review, but even if that worked for DC, the four Supreme Court conservatives would almost certainly grant cert, and it will be difficult to rule in favor of DC in light of Heller for all the reasons Judge Griffith lays out. Plus, it would set an even more secure precedent against “good reason” laws everywhere else in the country. That could be a literal win-win for the Second Amendment.
Both Ed and many other smart people I know are seeing the Wrenn ruling as great news, and perhaps it will be. But there’s a nagging part of this tale which still troubles me. It all comes down to what happened in Peruta v. California. When I wrote about it at the time I described it as a definite blow to the Second Amendment and it was also a “good cause” law at the heart of it. The California law requiring “good reason” was upheld by the Ninth Circuit because, well… it’s the Ninth Circuit, which is largely indistinguishable from many popular breakfast cereals comprised primarily of fruits and nuts. But when the Supreme Court had the opportunity to step in they declined to hear the appeal, allowing the ruling to stand.
And this wasn’t something which happened long, long ago in a galaxy far, far away. This was just last month. Gorsuch was already seated at that point and in fact he joined in with Thomas in the rare move of dissenting from a decision not to grant a hearing. If Heller is the overriding factor in such decisions, how did the court fail to step in with the same members seated as we have now? More to the point, what if the District appeals in Wrenn and the Supremes once again decline to give cert as Ed predicts? They would have what essentially amounts to two conflicting decisions in the lower courts on an extremely important topic which they’ve left sitting out there without a final resolution. That seems to amount to what’s essentially judicial malpractice at that point.
Perhaps Ed is right and this will all work out for the best, but I can’t muster the same level of confidence at this point. I’d rather have another ruling at the Supreme Court to back up Heller personally.