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07/26/2017

D.C. Circuit Finds Right to Carry Arms in Public
Michael Ramsey

Per Judge Thomas Griffith, in Wrenn v. District of Columbia, with substantial originalist/historical analysis.  As summarized by David Kopel at Volokh Conspiracy:

D.C. had argued that England’s 1328 Statute of Northampton banned all arms-carrying, and this controls the meaning of the Second Amendment. (Several legal historians and I argued to the contrary, in the amicus brief cited above.) On the matter of English history, the D.C. Circuit found that “for every point there is an equal and opposite counterpoint.” However, “the state of the law in Chaucer’s England — or for that matter Shakespeare’s or Cromwell’s — is not decisive here.” Instead, “the history showcased in Heller I contradicts the main scholar” (Patrick Charles) who contends that there is no right to carry. For example, Heller said that by the time of the English Bill of Rights in 1689, the right to arms included the right to “carry weapons in case of confrontation.” Likewise, “James Wilson — early commentator, virtual coauthor of the Constitution, and member of the Supreme Court’s first cohort,” had explicated that “Founding-era Northampton laws banned only the carrying of ‘dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour in the people."

D.C. had offered a second major argument that there is no meaningful right to bear arms: Based on the writings of Saul Cornell, D.C. contended that several 19th-century state “surety of the peace” statutes prohibited carrying in most circumstances. As the court pointed out, this argument was based on misreading the statutes. Under these statutes (the first of which was enacted in Massachusetts), anyone could carry arms. If someone else brought a civil case alleging that carrier was threatening to breach the peace, the carrier could be forced to post bond for good behavior. After posting bond, the carrier could go on carrying.

Thus, the District’s historical arguments that there is no right to carry, or no right to carry in cities, were incorrect. To the contrary, “carrying beyond the home, even in populated areas, even without special need, falls within the Amendment’s coverage, indeed within its core” (citing, among other authorities, Eugene Volokh’s oft-cited “Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda,” 56 C.L.A. L. Rev. 1443 (2009)).

But will it survive en banc review?  (Judge Henderson dissented).