Two appeals in which the plaintiffs want to force the District of Columbia to issue concealed carry permits were heard before the same three judge panel this morning. The first case to be heard was Wrenn v. DC in which the plaintiffs were represented by attorney Alan Gura.
After an initial question by Judge Griffith regarding the US Supreme Court decision in District of Columbia v. Heller which said that the need for self-defense is most acute in the home, the next question by Judge Griffith has proved to be fatal to every concealed carry lawsuit filed since the Heller decision was published in 2008.
Judge Griffith: There is a long history here of courts sustaining bans on concealed carry. Right?
Alan Gura: Sure.
Judge Griffith: And there is a long history … and the Court in Heller cited to some of those cases.
Alan Gura then proceeded to give his canned answer which claims that the government can choose to ban Open Carry in favor of concealed carry and the government can ban concealed carry in favor of Open Carry if it wants to when Judge Griffith interrupted.
Judge Griffith: And so you’re challenging the Open Carry [ban]?
Alan Gura: No!
Judge Griffith: Why not?
Alan Gura then concluded his canned answer that the government can choose one manner of carry over another and that the Heller decision said that government can ban Open Carry in favor of concealed carry.
Of course the Heller decision did not say that government can ban Open Carry in favor of concealed carry and no Federal court of appeals or state high court has read the Heller decision to say that. Just the opposite, every court has read the Heller decision to say that concealed carry can be banned and to the extent there is a right to carry arms in public, it is a right to openly carry arms.
Of the three judges on the panel who heard the appeals this morning, only Judge Griffith left no doubt by his questioning that the Second Amendment extends beyond the door of ones home, at least as to firearms carried openly. This shouldn’t surprise you if you knew that Judge Griffith was one of the two judges in the majority in the Parker v. DC decision which was affirmed by the US Supreme Court under the name of District of Columbia v. Heller. The same decision which said that concealed carry is not a right and that Open Carry is the right guaranteed by the Constitution.
Judge Griffith gave Alan Gura a chance to challenge DC’s Open Carry bans but Mr. Gura slapped his hand away. This means that these two appeals are almost certainly going to fail.
On the whole, Judge Williams questions sided with the District of Columbia by a rough estimate of 60-40 although towards the end of the questioning in the second appeal, Grace v. DC, he seemed to shift more in favor of the Plaintiffs and that was in large part due to the District of Columbia lawyers’ answers to the questioning. According to her, the District of Columbia (and states) can ban all public carrying of arms.
Judge Henderson did not ask any questions. She sat on the same three judge panel as did Judge Griffith in Parker v. DC but dissented to the conclusion of the majority that the Second Amendment applies to the District of Columbia. Judge Henderson’s dissent argued that the Second Amendment applies only to state militias and the District of Columbia is not a state.
If at least two of the three judges hold in favor of either of the sets of plaintiffs then that decision will create a circuit split with every Federal court of appeals not to mention every state high court which has held that there is no right to concealed carry under the Second Amendment.
If the court decides against the plaintiffs in both cases then there will not be a circuit split created which is another strong indication that both the Wrenn and Grace plaintiffs are going to lose.
Appellate judges do not create circuit splits on a whim, particularly when, as in these two concealed carry cases, there are no grounds to side with the plaintiffs and to create the circuit splits in the first place.
Hopefully, we will have a decision from the DC Circuit before the end of this year or by early next year at the latest.
Regardless of what the DC Court decides, it will have no immediate impact on my lawsuit which seeks to overturn California’s Open Carry bans, Nichols v. Brown.