Six months into his presidency, Donald Trump is facing frustrations and challenges left and right, in courtrooms and in Congress. There is one issue, however, on which he has so far been able to deliver much of what he promised on the campaign trail: Gun rights. The NRA broke its own record for campaign spending in supporting Trump, and is reaping the reward. As the NRA’s executive director put it recently, “For America’s law-abiding gun owners, the Trump administration is proving to be among the best in history.”

Some deliverables were easy, like rescinding President Obama’s ban on the use of lead ammunition on federal land. More significantly, his nomination of Neil Gorsuch to the Supreme Court was taken to be a guarantee of District of Columbia v. Heller (though there is good reason to believe that the decision was secure long before the election was over). The push for national concealed carry reciprocity faces political and constitutional hurdles, but, if successful, would represent the largest federal expansion of gun rights in a generation.

Gun rights and regulation are therefore as central to the American politics and constitutional law as they have ever been, making this week's decision in Wrenn v. District of Columbia all the more significant. In Wrenn, a divided panel of the D.C. Circuit struck down the district’s permitting scheme, which required those seeking to publicly carry a concealed weapon to first show a “proper reason” for doing so.

Such requirements raise interesting constitutional questions, but have been universally upheld by other courts, meaning that this week’s decision creates—for the moment, at least—an arguable circuit split. And that, in turn, makes it important to understand how the D.C. Circuit’s decision reflects the kinds of issues that might come before the Supreme Court and its newest Justice.

Second Amendment battles after Heller have generally been fought along two dimensions: the scope of the Amendment’s coverage, and the degree of protection it accords to the people, arms, and activities that it covers. In important respects, the panel decision in Wrenn departs from most other circuits on both of those dimensions.

Courts have overwhelmingly held or, or at least assumed, that the Second Amendment has some application outside the home. The panel decision follows that trend. Even Judge Karen Henderson’s dissenting opinion assumes that the right to keep and bear arms extends outside the home.

From there, however, the panel opinion breaks new ground, concluding that Second Amendment must have the same application outside the home as it does inside it. The majority reaches this conclusion based largely on its belief that the rights to “keep” and “bear” are “Constitutional twin[s],” and exist “on par.” Because they are both fundamental, the court treats the right to bear arms outside the home nearly identically to the right to keep arms inside it, despite the fact that Heller said the right to armed self defense is “most acute” in the home and weapons have always been regulated more strictly in public, especially in urban areas.

This doctrinal conclusion will surely be contested.  But even if the two rights are separate and fundamental, it does not follow as a matter of law that they must be subject to the same doctrinal tests. The constitution protects lots of fundamental rights, but uses a wide range of legal tests: strict scrutiny, intermediate scrutiny, undue burdens, and the like.

What’s most striking about the panel opinion, however, is the short shrift it gives to the governmental interest in regulation. The motion at issue sought a preliminary injunction, but the panel remanded with instructions to enter permanent injunctions against the proper reason restriction “regardless of its precise benefits.” To find a law—which, again, was nota complete ban—categorically unconstitutional without even considering the government’s asserted interest, is a remarkable step.

The panel’s refusal to permit evidence on the constitutionality of the law makes it impossible to actually answer the questions that the panel opinion itself raises: Whether DC residents retain adequate alternative methods of self-defense, for example. An affirmative answer to that question would support the law’s constitutionality, but would require some consideration of evidence.

More fundamentally, the panel’s approach threatens to inexorably expand Second Amendment rights, erasing at each step the qualifications built into the step before. Heller itself was deeply conflicted about how to incorporate the history of gun regulation, and the historical evidence about the extent of that regulation has only grown since then—a fact that should be particularly important to those who care about original public meaning. Likewise, courts before Heller upheld a wide variety of gun regulations, on a wide range of theories. The panel opinion, however, disregards a great many such cases on the basis that they were decided at a time (i.e., prior to 2008) when the overwhelming constitutional consensus was that the Second Amendment did not protect a right to keep and bear arms for private purposes.

Heller did not and could not rewrite that history. A court can ignore the history, or conclude that precedent overrides it, but a court cannot accurately conclude that precedent and history support a one-way ratchet in favor of expanding gun rights.

Ten years ago, the D.C. Circuit issued its first 2-1 Second Amendment opinion, with Judge Thomas Griffith in the majority and Judge Henderson dissenting, just as they were in Wrenn. That decision was before the Justices a year later in District of Columbia v. Heller. It is of course too soon to say whether Wrenn will follow the same path, and there are many reasons to suppose that it won’t. But whatever the ultimate resolution of the case, the panel’s decision clearly illustrates that gun rights and regulation demand attention, even among the deafening noise of other legal issues arising in the Trump era.  

Tags: