Anthony Sculimbrene, Esq.
Wrenn v. District of Columbia
2017 US App. Lexis 13348
Laws limiting concealed carry impact the core Second Amendment right of self-defense.
This is a consolidated case where multiple individual suits were grouped together for a ruling. At the federal district court level the two main cases were Wrenn v. D.C. and Grace v. D.C. In Wrenn the district court upheld the concealed carry law. In Grace it struck it down. Both cases were appealed by the losing party and joined for this opinion. It is also important to note that traditionally, the D.C. Circuit Court of Appeals has been a court of appeals with outsized influence, especially in intellectual property cases. It is something like a first among equals. This gives this opinion a small bit of extra persuasive power.
After Heller, Heller II, and Heller III the District of Columbia reformulated its concealed carry laws to adapt to court orders. As it is existed in this case the law prohibited concealed carry licenses to almost everyone. The two exceptions were for: 1) self-defense; and 2) if a person was working a job that involved transportation of money. The requirements for self-defense were especially hard to meet. In order to get a concealed carry license for self-defense reasons the person had to show that they had concerns above and beyond what a normal person had in terms of self-defense. That is, that they had “good reason” to carry in self-defense. In both Wrenn and Grace the applicant did not show that they had a good reason to carry a concealed firearm and their applications for a concealed carry license were denied. In Grace’s case, when asked on a form what his “good reason” was, he indicated “the Second Amendment.” After being denied, both parties, along with related firearms groups, filed for an injunction that would prevent D.C. from denying them a concealed carry license. In Grace’s case one of the firearms groups was the Pink Pistols, a group that had a mission of providing firearms and training to women and “sexual minorities.” They claimed that their mission was at the heart of the Second Amendment – providing a means of self-defense to people.
This case was heard at an odd point in the process. In Grace, the hearing was for the temporary injunction. There Grace asked the court to just merge the temporary injunction and permanent injunction into one hearing as he was likely to prevail on both. The lower court granted the temporary injunction but denied Grace’s request to merge the two steps together. This is important because winning a temporary injunction requires the plaintiff carry the burden of proof and the burden of proof is higher than in normal civil cases.
At the appeals level, the court was considering the issuance of the injunction in both Wrenn’s and Grace’s case. The analysis, like in Heller, started with a historical review of the sources at the time the Second Amendment was drafted. D.C. first claimed that Heller’s self-defense right is limited, that it applies only at home. In fact, both Heller and McDonald have language indicating that the right of self-defense is strongest in the home. The court, however, found that while the right it strongest at home, historical sources indicate that the right of self-defense exists outside of the home as well. The court found that this right was “core” to the Second Amendment. As evidence of that they relied on the language of the Second Amendment itself – “keep and bear arms.” As Heller I showed, “bear” means “to carry” and thus it would be odd to curtail the right of self-defense only in one’s to home if the language of the Amendment authorized individuals to carry a firearm in addition to keeping them.
The court then turned to the “good reason” statute. They found that the statute severely curtailed the right to bear arms outside the home. In fact, as they pointed out, the statute, by definition, prohibited the vast majority of people from concealed carry. The requirement to show a special and specific concern, over and above what most people have, in order to get a license for self-defense purposes proves that the law takes the right carry away from most people.
The D.C. offered two rebuttals, hoping to show that the “good reason” statute was similar to “longstanding” historical limitations on the right to possess firearms, as these limitations were recognized in Heller as still being good law. First, they focused on what are called “Northampton” laws. These were laws in Middle Ages England that prohibited weapons from being carried in big cities. The court noted that these laws, while historically grounded, represented only the first step in history and that by the time the Second Amendment was drafted, they were almost non-existent in America. Instead, there were places that REQUIRED carrying weapons. The D.C. then turned to ancient “surety” laws, which required people carrying weapons to post money with the government in case they injured someone while carrying. The court noted that these laws were also rare in Colonial America and noted that they were significantly less strict than the “good reason” statute in the D.C. – everyone was allowed to carry, they just had to put up money to do so.
Finding that the Second Amendment, at its core, protects the right to carry while away from the home in self-defense and that the “good reason” law was not a traditional restriction on the right to carry that was referenced in Heller as still being good law, the court turned to the law itself. Using the framework from Heller and Heller II, the court found that the law was essentially an absolute ban on the right to carry and thus it was unconstitutional on its face. It did not engage in a “level of scrutiny” analysis.
The dissent offered a preview of how this case or similar ones could be argued on appeal. First, it found that the “good reason” statute was similar to historical restrictions on weapons carry. Second, it found that the D.C. represents a unique environment that makes concealed carry all but impossible. Finally, the dissent rejected the majority’s approach and applied intermediate scrutiny to the law. This level of scrutiny allowed the law to survive.
Notes for Knife Owners
This case has to take away message for knife owners. First, it shows the importance of local ordinances. Though the D.C. is a unique case, many towns and cities have restrictions on weapons that are tougher than the state laws in the same area. Second, this case also shows that how a weapon is carried can impact its legality. Concealed carry is an especially fraught area in the law and thus many weapons that would be legal to possess may become illegal to carry when done in concealed manner. Finally, a warning – this case’s dissent shows how literally courts read Supreme Court opinions. If there an argument over whether carry is permitted outside the home because Heller only discussed possession in the home, the fact that knives were not mentioned much poses an issue. Courts have and probably will continue to claim that knives are not protected by Heller.
- Point 1: Check local ordinances to make sure your knife is legal to carry, unless your state is a preemption state.
- Point 2: Check restrictions on manner of carry.
- Point 3: Remember, thus far, no court has found that Heller specifically applies to knives.
Notes for Attorneys
First, a cautionary note: it is entirely possible, given Heller’s lack of discussion of knives, that the holding here, as good as it is, would not apply to knives. That seems unlikely given cases like DeCiccio, from Connecticut, but it is a real concern. Second, this case is a perfect example of the old legal maxim GFMGL: good facts make good law. The stars aligned here: the two petitioners were clean-as-a-whistle folks, the supporting groups had compelling causes, and the D.C. law was incredibly onerous. As such, the opinion, while hopefully precedent setting, might be seen as a limited holding in a one-off scenario. Finally, this is one of the very few cases, if not the only case other than Heller itself that dispenses with the “tier scrutiny” analysis entirely. The court doing this seems like an aberration.
But there is real meat here for those defending knife cases – the Second Amendment includes, at is core, a right to self-defense outside the home AND the right to carry weapons in self-defense outside the home. That is a good and logical extension of Heller, and here the extension is supported by ample historical sources. Second, this case does a good job of shooting down many of the common justifications for extremely restrictive carry laws. If you are litigating a case where these are an issue, Wrenn should be one of your first stops on the research trail.
- Point 1: This case doesn’t fill the gap in Heller regarding knives, so be careful using it in a knife case.
- Point 2: This case had extremely unusual facts that resulted in an extremely unusual opinion.
- Point 3: The right to defend one’s self is being broaden beyond the home.