A shot across the bow

The Washington Post Sunday - - LOCAL OPINIONS -

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.

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