Rehearing En Banc in Wrenn & Grace Denied!
Today, the D.C. Circuit denied the District of Columbia's petition for rehearing and rehearing en banc in the Wrenn and Grace cases!
In the consolidated appeal in those cases, a 3 judge panel of the D.C. Circuit had struck down as unconstitutional the DC requirement that an applicant show a "good reason" for a permit to carry a handgun outside the home. Significantly, the court's order denying en banc noted that no judge even requested a vote on the petition. What a contrast with the Ninth Circuit! That circuit has granted en banc in every case from a favorable panel decision applying the Second Amendment. You can find the panel's decision HERE. The court's order denying rehearing can be found HERE. This denial of rehearing makes the D.C. Circuit's decision final!
At this point, the DC government can choose either to file a petition for a writ of certiorari before the Supreme Court or accept the D.C. Circuit's decision. In Heller, DC sought certiorari and ultimately lost on the merits. Given how irrationally and rabidly anti-gun DC is, our expectation is that DC will once again seek certiorari in Wrenn. If it does, there are good reasons to believe that the Supreme Court will agree to hear the case. First, the Wrenn decision openly disagrees with the 2nd, 3rd, and 4th Circuits, all which have sustained as constitutional similar "good reason" requirements. Second, not only does the Wrenn decision create a square conflict in the circuits, it invalidates a DC law on Second Amendment constitutional grounds. Third, we now have a full Court of nine Justices, including Justice Gorsuch, and while it takes five to win, it only takes four Justices to grant certiorari. Not to get ahead of ourselves, but if the Supreme Court does take the case and the plaintiffs prevail, that Supreme Court decision will effectively overrule the 4th Circuit's decision in Woollard, which sustained Maryland "good and substantial reason" requirement. At that point, Maryland would become a "shall issue" state (as would the rest of the states that have imposed "good reason" requirements)!
DC has 90 days in which to file a petition for certiorari, subject to extension. In the meantime, under its local rules and prior order, the D.C. Circuit will issue its mandate seven days from today, including its instruction to the district courts in Wrenn and Grace to enter a permanent injunction against DC's "good reason" requirement. Once those permanent injunctions are issued by the district courts (it will take some time), applicants *should* be able to file carry applications with DC without regard to the "good reason" requirement, particularly if the applicant is a member of the Second Amendment Foundation, which was one of the plaintiffs in Wrenn. Of course, it is still possible that DC may seek to delay the court's mandate or ask for a stay of the mandate pending a petition for certiorari. Nothing in Wrenn changes Maryland's law. It will take a Supreme Court decision to do that.
Update: Fearing a loss at the Supreme Court, the D.C. Government decided not to file a petition for a writ of certiorari with the Court. https://www.washingtonpost.com/local/dc-politics/dc-will-not-appeal-gun-law-to-supreme-court/2017/10/05/e0e7c054-a9d0-11e7-850e-2bdd1236be5d_story.html?utm_term=.58d5067ad089. As a result, D.C. is now a “shall-issue” jurisdiction.
Mark Pennak, President, Maryland Shall Issue