Analysis of Wrenn v. District Of Columbia

BY Herschel Smith
2 months, 2 weeks ago

Via Dave Hardy, this analysis comes from Joseph Blocher.

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.

Read the rest of his insightful analysis.

I’ve always said that Heller was a weak decision in that it didn’t fully recognize the right of self defense outside the home, and have said so many times.  Perhaps it’s all Scalia could get out of the majority in his Heller decision.

Either way, the appeals court is doing the heavy lifting for the now-deceased Scalia.  It’s almost like they read the part about “shall not be infringed,” yes?


Comments

  1. On August 5, 2017 at 11:54 pm, Blake said:

    The courts are not “inexorably expanding gun rights.” Rather, courts are recognizing government is blatantly intruding into areas in which it has no business.

    I don’t find the article particularly insightful because the author starts from a flawed premise. The author assumes gun ownership has been heavily regulated all along and writes from that viewpoint.

    I think the author should check into the Heller decision and when NFA was passed. Pretty much all current firearms regulations hinge upon the NFA and the Heller decision.

  2. On August 5, 2017 at 11:55 pm, Blake said:

    Drat, I meant the Miller Decision, not Heller.

    Any chance you can fix it, Herschel?

    Thanks in advance.

    -Blake

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This article is filed under the category(s) Second Amendment and was published August 2nd, 2017 by Herschel Smith.

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