A shot across the bow
News has been virtually exploding from our phones and televisions of late — so much so that a cannon shot of a ruling from the U.S. Court of Appeals for the District of Columbia Circuit late last month was barely heard: Two judges on a three-judge panel struck down the District’s system of concealedcarry gun regulations as a violation of the Second Amendment.
What happens next holds critical implications for the safety of our neighborhoods, not only in the District but also in cities and states across the United States. Weak concealed-carry laws do not make Americans more secure.
The court’s wrongheaded decision does not entirely come as a surprise. As I testified before the D.C. Council in 2014, “One can hardly avoid the writing on the wall when it comes to . . . laws that totally, or even virtually, prohibit carrying firearms outside the home.”
That said, four other U.S. circuit courts have upheld the constitutionality of laws similar to the District’s, in which license applicants must provide local authorities with a “good reason” to carry a loaded, hidden handgun in public to justify the risks of doing so. For its part, the Supreme Court has so far shown little interest in plunging again into the thicket of gun violence prevention policy, and small wonder.
This area of law has produced general agreement among lower courts, in part because it presents a web of complex life-or-death problems that are far better suited for the people’s representatives to balance and resolve, rather than judges “in the peace of [their] judicial chambers” — as Ronald Reagan appointee Judge J. Harvie Wilkinson III eloquently wrote in 2011.
The two D.C. Circuit judges, however, shot through that restrained judicial wisdom. They stretched the limited holding of the Supreme Court’s landmark decision in D.C. v. Heller to press the broader cause of firearms deregulation. How?
It is important to recall that Justice Antonin Scalia’s majority opinion in Heller narrowly held that the Second Amendment protects the right to keep and bear arms at home for self-defense. In the court’s first substantive Second Amendment case in nearly 70 years, however, Scalia also added a great deal of discussion of the amendment’s text and history, as he saw it — including his understanding of what it means to “bear,” or carry, arms.
The D.C. Circuit’s majority opinion — drafted by George W. Bush appointee Judge Thomas B. Griffith — took advantage of this added verbiage, circumventing Heller’s narrow holding in favor of essentially rewriting it to say there is a “core” constitutional right to carry guns outside the home.
The D.C. Circuit’s decision ham-handedly sweeps aside centuries of practice and precedent for strict concealed-carry regulation reaching back to 1300s England through the ratification of the 14th Amendment. The opinion also managed to take a snide, condescending tone, in a manner sadly consonant with the Trump era and beneath the gravity of the issues at stake.
Perhaps most significant, Griffith’s opinion failed to acknowledge the fundamental difference about the Second Amendment identified years ago by Dennis Henigan, former vice president of the Brady Campaign to Prevent Gun Violence: The gun right recognized in Heller is “the most dangerous right,” unlike any other in the Constitution.
“A wealth of empirical evidence shows,” Henigan wrote, “that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large.” Rather than respect this evidence and recognize that more than 125 D.C. residents have already received concealedcarry gun licenses, Griffith’s opinion repeatedly compared gun rights with free speech rights. But as Americans have seen all too often from concealed-carry permit holders — including the Washington Navy Yard shooter — there are life-or-death matters at stake here.
This deeply problematic, and potentially dangerous, D.C. Circuit ruling should be vacated by the full D.C. Circuit, and the case should be reheard. Judge Karen LeCraft Henderson — who was appointed by President George H.W. Bush — wrote a masterful dissent that is practically a road map for such a reexamination. It soberly respects the text and history of the Constitution, Supreme Court precedent and the demonstrated public-safety concerns of the people of the District. As she wrote, “Regulations restricting public carrying are all the more compelling in a geographically small but heavily populated urban area like the District.” Quoting another case, she wrote that Washington “is the seat of our national government, ‘a city full of high-level government officials, diplomats, monuments, parades, protests and demonstrations and, perhaps most pertinent, countless government buildings where citizens are almost universally prohibited from possessing firearms.’ ”
If the full D.C. Circuit were to apply the same diligence to its analysis, it would follow Henderson’s lead, reiterating a cross-ideological consensus from courts across the United States: We must uphold our Second Amendment rights while also allowing our elected officials to take reasonable steps to protect public safety.