Appeal from the Superior Court of the District of Columbia (FEL2903-05) (Hon. John Ramsey Johnson, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Before RUIZ, Associate Judge, and FERREN and SCHWELB, Senior Judges.
The Second Amendment provides in part: "... the right of the people to keep and bear Arms, shall not be infringed."*fn1 In this case, appellant contends that her conviction for carrying a dangerous weapon (CDW)*fn2 -- a knife -- should be reversed because the court's instruction to the jury violated the Second Amendment. How? By permitting the jury to convict if appellant "intended to use the [knife] as a dangerous weapon,"*fn3 even if her only purpose was to have it ready for "lawful self-defense."*fn4 Because appellant did not make this claim at trial, both parties agree that we review for plain error.*fn5
The altercation at issue occurred between appellant, Stacia Wooden (the wife of John Cunningham), and Victoria Thomas (Cunningham's former girlfriend, with whom he had a daughter). The animosity between them was attributable primarily to appellant's learning that Thomas was still sexually involved with Cunningham. That led to a fight between them in late March of 2005, when Thomas, according to her own testimony, saw "a knife on the ground" and "picked the knife up," but "stopped" after Cunningham's mother intervened and "cut her finger" on it.
Tempers cooled over the next two months, but the animosity flared up as a rivalry developed between appellant and Thomas over caring for Cunningham's grandmother, Emma Cunningham. According to the government's evidence, on May 23, 2005, appellant was speaking with Emma over the telephone, insisting that she get ready for "day camp" (an elder care program), when Thomas, already at Emma's house, intercepted the call from a hall telephone. That morning, Emma had told Thomas that her "heart hurt," and Thomas assured her, after appellant's call, that Thomas would take Emma to the hospital. As Thomas was going downstairs to retrieve her car, appellant entered the foyer through the front door. The two began to argue: appellant for day camp, Thomas for the hospital. Thomas stepped toward appellant, who then threw hot coffee on Thomas's face. A physical struggle began, and the women carried the fight outside onto the porch.
According to the neighbor from next door, Linda Durett, the two were leaning against a brick half-wall that divided grandmother Emma's house from Durett's. Durett saw that Thomas "was bleeding from her forehead" and that appellant had "a little knife in her hand." Durett screamed. John Cunningham's brother, Jamel McCormick, came out of the house and took the knife from appellant, whereupon Durett's son, Troy, came out of his house and broke up the fight.
Under the CDW statute, as the jury was instructed,*fn6 a defendant may be convicted for knowingly and intentionally carrying a deadly or dangerous weapon, openly or concealed on or about the person, with an intent to use it as a dangerous weapon -- even though the intended dangerous use is limited to an anticipated need for self defense. Wooden expressly concedes this. According to his opening brief, "at the time of trial it was clearly settled that a defendant to a CDW charge could not claim self-defense to justify possession of the weapon before the need for self-defense arose";*fn7 the law "clearly supported"*fn8 thejudge's CDW instruction to the jury. To explain that acknowledgment, counsel for Wooden cited this court's 1982 decision in McBride, in which we said: "A person who possesses a 'dangerous weapon' in good faith anticipation of a need to use it in self-defense may be guilty of a general-intent weapons offense," such as CDW.*fn9 Accordingly, Wooden did not challenge the CDW instruction at trial because counsel perceived no statutory grounds for doing so.*fn10
Because we review for plain error, the question presented is whether the Second Amendment "clearly" or "obviously" incorporates a right to carry a dangerous weapon, here a knife, with an intention to use it only, if necessary, for the lawful purpose of self-defense. Put another way, is it clear or obvious that the Second Amendment trumps McBride's observation that carrying a dangerous weapon solely for purposes of anticipatory self-defense is unlawful?
In District of Columbia v. Heller,*fn11 the Supreme Court held that the District of Columbia's "ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."*fn12 The Court concluded that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation,"*fn13 and it stressed that self-defense is "the central component of the right itself."*fn14 Moreover, "the Second Amendment ...