The Court’s opinion in Wrenn and Grace was not without a dissent as Judge Karen Henderson would have upheld the good cause requirement. Judge Henderson has previously voted to uphold every DC restriction that has come before the Court of Appeals. Notably, she dissented in the Court of Appeals’ decision in Heller before the US Supreme Court’s landmark decision in that case to overturn DC’s complete ban on functional firearms. Arsenal Attorneys' George Lyon was one of the original plaintiffs in Heller.
Judge Thomas Griffith’s majority opinion for Wrenn and Grace can be found at the following link: https://www.cadc.uscourts.gov/internet/opinions.nsf/E2F5AEE1CAB3A06C85258168004F3EE5/$file/16-7067.pdf. It is an enjoyable read for those who believe the courts owe the Second Amendment greater deference. This case was yet another impressive victory for attorneys Alan Gura and David Thompson. Plaintiffs Brian Wrenn and Matthew Grace, both of whom the Arsenal Attorneys team are proud to call personal friends, displayed principle and public service in putting their names to the case.
Unfortunately, DC is not going to start issuing concealed carry licenses any time soon. The Court will not issue a mandate to the District Court per its ruling until after a 30-day period enabling DC to request rehearing before the three-judge panel that issued the opinion, or before the full D.C. Circuit (consisting of 11 “active” judges, which excludes judges those with senior status). Of the 11 active judges who could hear the next appeal, seven were appointed by Democrat Presidents and four, including Henderson, were appointed by Republican Presidents. The most likely scenario is that DC will petition for rehearing en banc (i.e., by the full court), and the odds are substantial that the full court will agree to rehear the case, thus preserving the status quo.
Assuming the petition for the en banc appeal is granted, the party to lose that decision could seek review by the US Supreme Court. Four Supreme Court justices must vote to hear a case. We can expect Justices Thomas and Gorsuch would vote to hear the case if DC prevails at the en banc level. Justice Alito, who has previously voted with Justice Thomas to hear a ban on so-called assault weapons, could supply a third vote to hear the case. That would leave the decision whether to hear the case to Justice Kennedy and/or Chief Justice Roberts, both of whom were in the majority in Heller and could potentially be votes to overturn DC’s may issue scheme.
Considering this composition of the Supreme Court, DC might be reluctant to take its chances in the highest court of the land. A defeat for DC in the Supreme Court could invalidate the may issue permitting schemes in the other six may issue states: Massachusetts, Maryland, New Jersey, Hawaii, New York, and portions of California. In addition, a strong Second Amendment decision from the Supreme Court could derail various other gun control statutes across the nation. The anti-Second Amendment lobby would likely put heavy pressure on the District to accept defeat and forego Supreme Court review if it posed such a risk of overturning much of the gun control regulations nationwide.
Although the recent Wrenn and Grace decisions are significant steps forward, years could remain until they reach their final conclusion. Stay tuned to Arsenal Attorneys’ social media for updates. You can request our newsletter at the bottom of our home page.
