WASHINGTON (CN) - Judges hearing appeals of two cases challenging Washington, D.C.'s strict law governing the issuance of concealed carry permits hounded the city's lawyers Tuesday morning, asking them to explain why the law does not infringe on the Second Amendment.
The law at issue requires those seeking a conceal carry permit to justify why they need it.
Washington residents Brian Wrenn and Matthew Grace challenged the law in February and December 2015 respectively, arguing it was too restrictive and amounted to an outright ban on carrying a gun outside of the home.
Grace won a preliminary injunction from Judge Richard Leon in May, but Wrenn's attempt to win a similar victory failed.
The city appealed the decision in the Grace case, and Wrenn appealed the decision in his, landing both before the three-judge panel that heard oral arguments Tuesday morning.
In defense of the law, the city's lawyers argued it builds on others borrowed from the English Common Law tradition and protects a substantial public safety interest in a crowded, entirely urban community.
But two of the three panel members all of whom were Republican appointees seemed skeptical of the city's justifications.
after Holly Johnson, who represented the city in the Wrenn case, said people have the right to carry guns in places like the countryside or the home, but that governments can restrict that right in places where public safety interests warrant it, Judge Thomas Griffith scoffed.
"But not in the city?" he said rhetorically. "That's absurd."
The city's lawyers repeatedly fell back on the Statute of Northhampton, a 14th century English law that banned people from carrying weapons in populated places like markets, to argue the founders did not intend to include an unrestricted right to carry when they crafted the Second Amendment.
The Northhampton laws made their way to the new world and were common knowledge when the founders hammered out the Second Amendment, meaning they likely informed their intent, the city said.
"There is no right under the Second Amendment to concealed carry," said Loren AliKhan, who argued for the city in the Grace case.
In fact, she said, there is a "rich tradition" of governments prohibiting people from carrying firearms in crowded public places like the District of Columbia's streets.
But even before AliKhan advanced that argument, Griffith had pushed Johnson on its validity, pointing out that only four states in the country have regulations similar to the law at issue.
"That certainly undercuts your argument that it is necessary," Griffith said.
The city's lawyers also pointed to research they said suggests such laws lead to fewer crimes and noted multiple times that neither Grace nor Wrenn had scrounged up any such research.
Grace and Wrenn's lawyers instead relied heavily the Supreme Court's decision in District of Columbia v. Heller, which struck down the city's ban on handguns in 2008. Grace's attorney, David Thompson, called Heller the "key" to the case and argued the city's law amounts to an "outright ban" on carrying a gun outside the home.
"There is no time, there is no manner, there is no place in which he can carry a firearm," Thompson said.
The judges asked Thompson relatively few questions, especially as compared to the number they posed to the city's attorneys.
Griffith pressed both of the city's lawyers to consider a hypothetical in which a woman living alone in a dangerous neighborhood decides she would like to get a gun in order to protect herself.
Under the city's gun law, living in a dangerous neighborhood alone is not enough justification for a person to receive a concealed carry permit unless they can point to an actual threat against them.
Griffith's contention was that this prohibition deprives the hypothetical woman of her right to defend herself from the first threat or attack against her.
"There are a lot of people who don't have the benefit we judges have," Griffith said. "There are a lot of people across the country who live in very dangerous neighborhoods."
AliKhan responded by saying in some circumstances - for instance, if the hypothetical woman could point to a neighbor whose house was robbed that could be enough justification for the city to issue a concealed carry permit.
But that answer didn't seem to satisfy Judge Stephen Williams.
"How close does the neighbor have to be in that hypothetical?" Williams asked, shortly before arguments ended.
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