An Unlikely Victory!

Today the DC Circuit rebuked the 2nd, 3rd, 4th and 9th Circuits, and gave a nod to the Seventh Circuit Court of Appeals in striking down the District of Columbia’s “good reason” law as a ban on the carrying of concealed weapons. This is a serious victory for the Second Amendment.

The Gun Owners Asociation of America, and the National Rifle Association are in large part responsible for the excellent briefing and advocacy on behalf of plaintiffs. Two judges joined to issue the opinion. One judge, Karen L. Henderson, dissented in a particularly verbose opinion that simply suggests that Heller means not what it says but what she believes it to mean.  Or to put it more bluntly, Judge Henderson would legislate from the bench because she knows best.

The opinion is notable for several rather important passages, and I will not do the opinion justice here; you should read it yourself. But here are some sections I found noteworthy:

Longstanding regulations aside, then, the Amendment shields at least the ability to carry common arms in self-defense for citizens who are commonly situated in the ways just mentioned. Yet the District’s good-reason law bars most people from exercising this right at all. To be sure, the good-reason law leaves each D.C. resident some remote chance of one day carrying in self-defense, but that isn’t the question. The Second Amendment doesn’t secure a right to have some chance at self-defense. Again, at a minimum the Amendment’s core must protect carrying given the risks and needs typical of law-abiding citizens. That is a right that most D.C. residents can never exercise, by the law’s very design.

In other words, by effecting a requirement to show “good reason” the law effectively bans anyone who simply wants to exercise their Second Amendment rights outside their home from ever exercising those rights. Sure, it allows some to carry, but effectively limits that to people who have either already survived an attack, or where an attack has been threatened. The Court summarizes this as follows:

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.

The opinion did not apply a tiered level of scrutiny to the statute at issue. Instead it called it an outright ban, and said that under Heller, it does not survive:

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.

After an impressive review of the history, both of American common law, and English Common law, including the obscure Northampton Regulations and the Surety laws, it concluded that the Second Amendment’s Core brings within it the right not only to keep arms, but to bear them:

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.

Having announced its decision, it followed that decision with this:

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.

This now sets up a conflict between the circuits. The Seventh Circuit and the DC Circuit have ruled in what amounts to precise fashion that Heller extends to the right to carry outside the home. The 2nd, 3rd, 4th, and 9th Circuits have all endorsed the “good reason” or “may issue” laws. The conflict is clear, and the Supreme Court should take this as an opportunity to clarify and extend the rights declared in the Second Amendment and affirmed in Heller. The reason is because judges like Karen L. Henderson continue to sit on the federal judicial bench. Here is what she said in her dissent. Try hard not to grit your teeth:

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.

Really, your honor?  Really?  You were there at the founding, or what?  How are you so certain of this when the United States Supreme Court has said otherwise?  This is the kind of judicial fiat that makes people hate judges.  It is simply using your position on the bench to dictate to others how their rights will be used.  Judge Henderson may have good intentions, but good intentions do not allow her to deny enforcement of constitutional rights.

She also said:

The sole Second Amendment “core” right is the right to possess arms for self-defense in the home. Drake, 724 F.3d at 431 (“[T]he individual right to bear arms for the purpose of self-defense [in] the home [is] the ‘core’ of the right as identified by Heller.”); Kachalsky, 701 F.3d at 89 (“Second Amendment guarantees are at their zenith within the home.”); United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (“[A] lesser showing is necessary with respect to laws that burden the right to keep and bear arms outside of the home.”). This conclusion is evidenced, first and foremost, by the United States Supreme Court’s declarations in District of Columbia v. Heller (Heller I) that the “the need for defense of self, family, and property is most acute” in the home, 554 U.S. 570, 628 (2008) (emphasis added), and in McDonald v. City of Chicago that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home,” 561 U.S. 742, 780 (2010) (emphasis added).

In other words, ignore the plain language of the amendment, ignore the history, ignore the Heller and McDonald decisions by the Supreme Court. Just forget all of that. Enforce the policy position that the all-knowing, all-powerful judge prefers. When you think about judges who legislate from the bench, this is one very blatant example. She should never have been appointed to this court, and hopefully she will retire soon, because judges like this are a danger to freedom.


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