Written By: Charlie Hearn
Executive Editor, American Journal of Trial Advocacy
Do you feel safer at home or in public? Most people would probably answer, “of course I feel safer at home.” A home offers the opportunity to take necessary precautions to ensure one’s safety; including, in addition to keeping firearms, locking doors and windows, installing an alarm system, installing cameras or motion sensor lights, and even putting up fences, walls, and gates. Security measures such as these allow individuals to monitor and control what takes place around them at their home. However, when a person is away from their home, they are without many, if not all, of these security measures. Once outside of their home, people are no longer able to control who they come in contact with, or what security measures are in place. These facts drive millions of Americans each day to carry, whether concealed or open, a firearm in public. However, is this right protected under the Second Amendment?
On December 15, 1791, the Bill of Rights was adopted after three-fourths of the states consented to it. The Bill of Rights contains the Second Amendment to the United States Constitution; which states, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Having a length of less than thirty words has not stopped the Second Amendment from earning a place among the most controversial amendments within the Constitution. Accordingly, one question that arises is whether the Second Amendment grants individuals the right to bear arms in public for self-defense or only to keep them within their home. Two recent decisions, Wrenn v. District of Columbia and Peruta v. City of San Diego, hold differing answers to this question.
District of Columbia
On July 25, 2017, the District of Columbia Court of Appeals, in Wrenn v. District of Columbia, analyzed a D.C. provision requiring an individual who wishes to carry a firearm on their person outside of their home to show a “good reason to fear injury to their person or property.” This “good reason” must be “distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant’s life.” This law made it all but impossible for the average, responsible citizen to obtain a concealed carry permit. In fact, prior to this decision, there were only approximately 124 permits issued within the District of Columbia. That amounts to approximately 1/100th of one percent of the D.C. population holding a concealed carry permit. This is particularly shocking because, according to John Lott of the Crime Prevention Research Center, if D.C.’s gun laws were aligned with the forty-two right-to-carry states, approximately 48,000 D.C. residents would hold concealed carry permits.
In Wrenn, the District of Columbia Circuit Court of Appeals, in a 2-1 decision, determined “[a]t the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home . . . .” The court highlighted the fact the Second Amendment grants the “right to ‘bear’ as well as ‘keep’ arms.” Noting that the United States Supreme Court, in District of Columbia v. Heller (Heller I), defined “bear” as “to ‘wear, bear, or carry [a firearm] upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’” The court further determined that the traditional “tiers of scrutiny,” i.e., rational basis, intermediate scrutiny, and strict scrutiny, were not applicable in Wrenn. This is because, as the court determined, “the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen.” Relying on the Court’s holding in Heller v. District of Columbia (Heller II), that although there is a “two-step approach for reviewing the District’s gun laws,” which includes the application of the “tiers of scrutiny,” this approach is “expressly limited to laws significantly less severe than a total prohibition.” Although the D.C. law did allow a very small portion of the D.C. population to obtain a permit, the court determined that the “law destroy[ed] the ordinarily situated citizen’s right to bear arms not as a side effect of applying other, reasonable regulations . . . but by design: it look[ed] precisely for needs distinguishable from those of the community.” Thus, the law acted much like a complete or total prohibition. Therefore, the court reversed the district court and ordered a “permanent injunction against the District [of Columbia’s] good-reason law.”
In another recent case, the United States Supreme Court denied certiorari in a California case which involved an individual who was denied a concealed carry permit by the San Diego County Sheriff’s Office. Originally, the Ninth Circuit determined in Peruta v. San Diego, that “the carrying of an operable handgun outside the home for the lawful purpose of self-defense constitutes bearing Arms’ within the meaning of the Second Amendment.” However, the Ninth Circuit directed, sua sponte, an en banc rehearing of the case. After this hearing, the Ninth Circuit reversed the panel decision, limiting the decision to the issue of invalidating the “sheriff’s ‘good cause’ interpretation.” As a result, the court:
Declined to answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public. It instead held only that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.
Importantly, courts have viewed concealed carry as less of an issue when states allow individuals to openly carry a firearm. In states that allow open carry, individuals can still exercise their Second Amendment right to bear arms, with a ban on concealed carry only effecting how the person may carry the firearm. However, because California does not allow open carry, an effective ban on concealed carry prevents law-abiding citizens from exercising their Second Amendment rights.
With the Supreme Court deciding 7-2 not to hear Peruta, it may seem unlikely the Court will grant review of Wrenn. However, Wrenn now creates a circuit split, albeit not a major split, regarding whether the Second Amendment grants the right to members of the general public to carry a concealed firearm. With President Trump pushing for increased protection of the Second Amendment, it is likely we may see the Executive Branch publicly call on the Court to hear this case. Stay tuned.
 Holly Munson, FAQ: Basic facts about the Bill of Rights, Constitution Daily (Mar. 22, 2013), https://constitutioncenter.org/blog/everything-you-ever-wanted-to-know-about-the-bill-of-rights.
 U.S. Const. amend. II.
 See Wrenn v. District of Columbia, No. 16-7025, 7067, 2017 WL 3138111 (D.D.C. July 25, 2017) (analyzing a challenge to a D.C. Code limiting licenses for concealed carry to those who establish good reason for fear of injury to their person or property); Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (analyzing a challenge to California counties definition of good cause for obtaining conceal and carry license) cert denied, Peruta v. California, 137 S. Ct. 1995 (2017) (Thomas, J., dissenting) (The State of California properly intervened prior to the Supreme Court’s denial of certiorari.).
 Nos. 16-7025, 7067, 2017 WL 3138111 (D.C. Cir. 2017).
 824 F.3d 919 (9th Cir. 2016), cert denied, Peruta v. California, 137 S. Ct. 1995 (2017) (Thomas, J., dissenting).
 Wrenn, Nos. 16-7025, at *1 (quoting D.C. Code § 22-4506(a)-(b)).
 Id. (quoting D.C. Code § 7-2509.11(1)(A)).
 See generally, Appeals Court blocks DC’s concealed-carry law on Second Amendment grounds, Fox News (July 25, 2017), http://www.foxnews.com/us/2017/07/25/appeals-court-blocks-dcs-concealed-carry-law-on-second-amendment-grounds.html (explaining the court’s decision, characterizing it as “an outright ban in violation of the Second Amendment”).
 United States Census Bureau, https://www.census.gov/quickfacts/DC (The District of Columbia’s population in 2016 was approximately 680,000).
 Fox News, Supra note 9.
 Wrenn, No. 16-7025, 7067, 2017 WL 3138111, at *11.
 Id. at *3.
 554 U.S. 570 (2008).
 Wrenn, at *3 (quoting Heller I, 554 U.S. at 584 (internal quotations omitted)).
 Id. at *11.
 670 F.3d 1244 (D.C. Cir. 2011).
 Wrenn, at *11 (internal quotations omitted).
 Id. at *12.
 Peruta v. San Diego, 824 F.3d 919 (9th Cir. 2016) cert. denied, 137 S. Ct. 1995 (2017).
 Peruta v. California, 137 S. Ct. 1995, 97 (2017) (Thomas, J., dissenting).
 Id. (emphasis original).
 See Peruta v. California, 137 S. Ct. at 1998 (internal citations omitted).