Legally Speaking

Of Law and Baloney

By Karen L. MacNutt,
Contributing Editor

“If you respect the law, and like sausages, you should not watch either being made.” Unknown

As painful as it is to watch Congress in operation, those who think you can wave the Constitution in front of a judge, yell “Second Amendment,” and have some state law or practice automatically be struck down, have been even more disillusioned.
Behind those black robes and stern faces, beat the hearts of people who are not much different than anyone else. Judges have prejudices and political opinions. Some judges rise above that and honestly try to be fair. Some try to impartially apply the law as it was written. On the other hand, other judges determine how they want the case to come out and then make findings of fact and rulings of law designed to support the outcome they want. It is truly amazing how far a judge can twist the law or how outrageous their findings of “fact” can be. Unfortunately, there are a lot of anti-gun judges sitting in local and appellate courts. They will do everything in their power to avoid giving life to the Second Amendment.
It is important in such jurisdictions to carefully pick the cases gunowners want to put in front of the various courts. It is also important to build a record in the lower court of facts that will cause a judge to want to find for the plaintiff on an emotional level. The case should appeal to some sense that a wrong has been done to the plaintiff. The, “I’ve got a right,” argument, without more, is tenuous. However, even judges who are prejudiced against guns have pet issues they want to support and often have a sense of fair play.
People unfamiliar with the law sometimes think that they can handle a case at the trial level. If they lose, they think, they will then hire a lawyer to appeal. That does not work. You may only appeal mistakes of law made by the judge. The facts of the case are determined at the lowest trial level. Once they are established, it is almost impossible to change them. If evidence is not put in properly, if a record of the case is not kept at the trial level, then there may be nothing to appeal and no basis upon which a higher court can find in your favor even if it wants to. One almost universal emotion that judges share, however, is indignation over having their orders ignored or circumvented.
In July of 2017 The United State Court of Appeals for the District of Columbia handed gun owners a very favorable ruling in a case named Wrenn v. District of Columbia. In October of 2017, the City announced that it would not seek further review of the case in the United States Supreme Court. The City’s lawyers said that they did not want to “risk” an unfavorable opinion from the United States Supreme Court. If the Supreme Court upheld the Appeals Court’s ruling that Washington, DC’s gun laws were unconstitutional, it would make good law for gunowners across the nation.
Under the federal court system, there are 13 federal courts of appeal (called circuits), each with a separate jurisdiction. Within its own jurisdiction, a ruling of a federal court of appeals creates law for that jurisdiction, but only for that jurisdiction. Although one Circuit Court of Appeal will often look at what other Circuits have done, they are not bound by those other opinions. As it stood, the Wrenn opinion only created law for the District of Columbia. If the Defendants, the city of Washington, appealed the opinion to the United States Supreme Court and lost, then the decision of the Supreme Court, and indirectly the DC Appeals Court, would become the supreme law of the land, applicable throughout the United States and its territories.
The city government of Washington, DC did not appeal because it thought it would lose.
The city government of Washington has a long history of despising the thought that its citizens might be able to lawfully possess guns. Its belief, shared by much of the anti-gun movement, is that guns must be kept from honest citizens to “dry up the supply” of guns that might be available to criminals. In 1976, DC banned all handgun possession. The law was not aimed at the “bad guy” but at honest citizens. They were the only ones impacted and they were, for the most part, black. When the Supreme Court struck that law down as being unconstitutional in Heller v. D.C. (Heller I) in 2008, the Court noted that crime had gone up, not down, after the city’s ban on lawful gun ownership. The DC city politicians were not to be thwarted by something as trivial as a Supreme Court ruling. Their goal was to keep the city’s honest population disarmed. They passed a new ordinance banning the carrying handguns claiming that the Heller decision only applied to having a gun in one’s home. That ordinance was struck down in Palmer v. D.C. in 2014. The city then passed an ordinance saying that a person had to have a special need for having a gun to get a license to carry one. A special need was defined as having a “good reason to fear injury to their person or property” or “any other proper reason.” The DC law limited what the police could consider to satisfy that criteria.
The language is very similar to that used in Massachusetts law. The Massachusetts high court ruled that such “special need” language did not burden the 2nd Amendment and it upheld giving police “broad discretion” in determining who may have a license to carry a handgun and who may not. Having a generalized fear of crime, the state court said, is not sufficient. Of note is the fact that the Massachusetts Court had also, in the past, ruled that the 2nd Amendment did not create an individual right to own a handgun; that it only applied to state militias. After Heller, clearly ruled the 2nd Amendment protected an individual right, the Massachusetts Court ruled that Heller only applied to federal law and would never be applied to the states. They were wrong again. In 2010 the U.S. Supreme Court ruled in McDonald v Chicago (2010) that the Second Amendment was to be applied against the states. Chicago was another city that substantially banned honest people from having handguns.
California, New York, Maryland, Hawaii, New Jersey and Connecticut, as well as Massachusetts, all have language similar to the DC ordinance. Unlike some of the just named states, DC apparently allowed some limited transportation of registered handguns for recreational purposes and permitted carrying within one’s home or place of business.
In support of its law, DC cited studies that suggested that “expansive right to carry laws are associated with higher rates of crime…” Actions were filed in two different Federal District Courts in Washington challenging the requirement that one must have a special need to obtain a handgun license. The two courts came to two different conclusions. The two cases were appealed to the United States Court of Appeals for the District of Columbia, one of the most respected courts in the country.
“Gun laws,” noted Judge Griffith at the beginning of the Court’s majority opinion, “almost always aim at the most compelling goal―saving lives―while evidence of their effects is almost always deeply contested.” The Judge went on to lament the fact that the Supreme Court in Heller had not given more guidance. He then stated, “But listening closely to Heller I reveals this much at least; the Second Amendment erects some absolute barriers that no gun law may breach.”
The Court started its reasoning by discussing whether or not the DC ordinance burdened the “core” Second Amendment right which the Appeals Court defined as the right of armed self-defense. The fact armed self-defense might be more pressing in the home, the Court reasoned, did not mean that self-defense at home is the only right at the core of the Second Amendment.
That statement by the Appeals Court is the key to the entire argument. The right protected is that of armed self-defense pure and simple. The potential need to resort to armed self-defense is just as important outside of the home as it is inside. The fact the 2nd Amendment also uses the word “bear,” the Court pointed out, contemplates the ability to carry beyond one’s home.
The arguments of the District of Columbia in Wrenn, twisted and wiggled like an earthworm but the Court addressed each argument. All of that makes the case excellent reading for those interested in issues surrounding the 2nd Amendment.
Again the Court hit a critical issue when it stated:
“At a minimum…the Second Amendment must enable armed self-defense by commonly situated citizens: those who possess common levels of need and pose only common levels of risk.”
How, an intellectually honest person might ask, can you call something a right of the people if most people are excluded from enjoying it? What type of nation only gives rights to the privileged? Would those supporting limiting the ownership of guns agree to limit voting rights in the same way? Would they accept an argument that only people who have doctoral degrees should be able to vote because others might not vote wisely? If you substitute other rights for the 2nd Amendment, it becomes obvious just how lame the anti-gun reasoning is.
The entire purpose of the “good reason” license is to keep guns away from as many average citizens as possible. This is the exact opposite of what having a “right” is supposed to be. The Court reasoned, quite correctly, that by restricting gun licenses to people who had a special need, it did, in effect, ban the rest of the population from being able to get a license to carry a handgun for self-defense. That, they said, was outright ban for most average citizens and therefore violates the 2nd Amendment.
It is hard to argue with the Court’s logic. Indeed, so hard that the anti-gun administration in DC decided not to appeal the ruling. In that short run, that means that Washington, DC will become a “shall issue” jurisdiction. Of course, the City Council might again try to circumvent the Constitution.
The vast majority of states are now either “constitutional carry” (requiring no license) or “shall issue” (requiring a license to issue if a person is not prohibited by specific standards). There has been no explosion of crime in those states. There is little credible evidence that people with gun licenses are contributing to crime in any meaningful way or that accidents have increased in those jurisdictions that have “shall issue” licenses or ‘Constitution carry” rules. If DC finally stops trying to frustrate its citizens’ civil rights, and if the good people of the capital are allowed to carry guns for self-protection, it will be interesting to see what happens to DC’s crime rate. In the meantime, those of us who live in discretionary license states will remain second class citizens until the Supreme Court agrees to rule on the question of whether the right to have arms for self-defense, or indeed any part of the Bill of Rights, may be restricted so that only “special people” are authorized to exercise the “right.” The opponents of gun ownership have so lost their concept of civil right and legal equality that they promote the proposition that certain people are somehow more “equal” than the great mass of honest American Citizens. That is baloney.