BRIAN WRENN, ET AL. v. DISTRICT OF COLUMBIA, ET AL.
No. 16-7025
United States Court of Appeals, District of Columbia Circuit
Argued September 20, 2016 Decided July 25, 2017
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2016 Decided July 25, 2017
No. 16-7025
BRIAN WRENN, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00162)
Alan Gura argued the cause and filed the briefs for appellants.
Herbert W. Titus, Robert J. Olson, William J. Olson, Jeremiah L. Morgan, and John S. Miles were on the brief for amici curiae Gun Owners of America, Inc., et al. in support of appellants.
Holly M. Johnson, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren
L. AliKhan, Deputy Solicitor General. Richard S. Love, Assistant Attorney General, entered an appearance.
Adam K. Levin and Jonathan E. Lowy were on the brief for amicus curiae The Brady Center to Prevent Gun Violence in support of appellees District of Columbia and Cathy L. Lanier.
Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Joshua N. Auerbach, Assistant Attorney General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Douglas S. Chin, Attorney General, Office of the Attorney General for the State of Hawaii, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, and Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, were on the brief for amici curiae States of Maryland, California, Connecticut, Hawaii, Illinois, Iowa, Massachusetts, New York, Oregon, and Washington in support of appellees.
Paul R.Q. Wolfson and Walter A. Smith, Jr. were on the brief for amici curiae DC Appleseed Center for Law & Justice, et al. in support of defendants-appellees.
Deepak Gupta was on the brief for amicus curiae Everytown For Gun Safety in support of appellees.
MATTHEW GRACE AND PINK PISTOLS v. DISTRICT OF COLUMBIA AND PETER NEWSHAM
No. 16-7067
United States Court of Appeals, District of Columbia Circuit
Decided July 25, 2017
3
No. 16-7067
MATTHEW GRACE AND PINK PISTOLS,
APPELLEES
v.
DISTRICT OF COLUMBIA AND PETER NEWSHAM, IN HIS
OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE
METROPOLITAN POLICE DEPARTMENT,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-02234)
Loren L. AliKhan, Deputy Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellants. With her on the briefs were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Holly M. Johnson, Assistant Attorney General.
Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Joshua N. Auerbach, Assistant Attorney General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Eric T. Schneiderman, Attorney
the Attorney General for the State of California, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Douglas S. Chin, Attorney General, Office of the Attorney General for the State of Hawaii, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, and Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, were on the brief for Maryland, California, Connecticut, Hawaii, Illinois, Iowa, Massachusetts, New York, Oregon, and Washington in support of appellants.
Paul R.Q. Wolfson and Walter A. Smith, Jr. were on the brief for amici curiae DC Appleseed Center for Law & Justice, et al. in support of defendants-appellants.
Deepak Gupta was on the brief for amicus curiae Everytown for Gun Safety in support of defendants-appellants.
Adam K. Levin and Jonathan Lowy were on the brief for amicus curiae Brady Center to Prevent Gun Violence in support of appellants District of Columbia and Cathy L. Lanier.
David H. Thompson argued the cause for appellees. With him on the brief was Charles J. Cooper, Howard C. Nielson, Jr., Peter A. Patterson, and John D. Ohlendorf.
Mark Brnovich, Attorney General, Office of the Attorney General for the State of Arizona, John R. Lopez, IV, Solicitor General, Keith Miller, Assistant Solicitor General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, Marty J. Jackley, Attorney General, Office of the Attorney General for the State of South Dakota, Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah,
Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, Brad D. Schimel, Attorney General, Office of the Attorney General for the State of Wisconsin, Peter K. Michael, Attorney General, Office of the Attorney General for the State of Wyoming, Luther Strange, Attorney General, Office of the Attorney General for the State of Alabama, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Gregory F. Zoeller, Attorney General, Office of the Attorney General for the State of Indiana, Chris Koster, Attorney General, Office of the Attorney General for the State of Missouri, Timothy C. Fox, Attorney General, Office of the Attorney General for the State of Montana, Adam Paul Laxalt, Attorney General, Office of the Attorney General for the State of Nevada, Michael DeWine, Attorney General, Office of the Attorney General for the State of Ohio, and E. Scott Pruitt, Attorney General, Office of the Attorney General for the State of Oklahoma were on the brief for Arizona, Alabama, Arkansas, Indiana, Missouri, Montana, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming in support of plaintiffs-appellees.
Dan M. Peterson and C.D. Michel were on the brief for amici curiae Western States Sheriffs’ Association, et al. in support of plaintiffs-appellees.
Herbert W. Titus, Robert J. Olson, William J. Olson, Jeremiah L. Morgan, and John S. Miles were on the brief for amicus curiae Gun Owners of America, Inc., et al. in support of plaintiffs-appellees.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge HENDERSON.
Before: HENDERSON and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
GRIFFITH, Circuit Judge: Constitutional challenges to gun laws create peculiar puzzles for courts. In other areas, after all, a law’s validity might turn on the value of its goals and the efficiency of its means. But gun laws almost always aim at the most compelling goal—saving lives—while evidence of their effects is almost always deeply contested. On top of that, the Supreme Court has offered little guidance. Its “first in-depth examination of the Second Amendment” is younger than the first iPhone. District of Columbia v. Heller (Heller I), 554 U.S. 570, 634 (2008). And by its own admission, that first treatment manages to be mute on how to review gun laws in a range of other cases. See id. at 634. But listening closely to Heller I reveals this much at least: the Second Amendment erects some absolute barriers that no gun law may breach. This lesson will prove crucial as we consider the challenges presented in these cases to the District of Columbia’s limits on carrying guns in public.
I
These cases involve the District’s third major attempt in forty years at managing what the D.C. Council sees as the tension between public safety and the Second Amendment. In 1976, the District banned all handgun possession.
(D.D.C. 2014), the Council responded with the law challenged here, which confines carrying a handgun in public to those with a special need for self-defense.
The challenged D.C. Code provisions direct the District’s police chief to promulgate regulations limiting licenses for the concealed carry of handguns (the only sort of carrying the Code allows) to those showing a “good reason to fear injury to [their] person or property” or “any other proper reason for carrying a pistol.”
To receive a license based on the first prong—a “good reason to fear injury”—applicants must show a “special need for self-protection 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.”
For those seeking to establish some “other proper reason for carrying,” the D.C. Code provides that an applicant’s need to carry around cash or valuables as part of her job is sufficient.
We will refer to this ensemble of Code provisions and police regulations simply as the “good-reason” law or regulation. The D.C. Council thought this scheme justified in light of studies suggesting that expansive right-to-carry laws are associated with higher rates of crime and injury to innocents. The Council also cited the District’s status as an urban area teeming with officials, diplomats, and major landmarks.
Before us are conflicting rulings in two cases before different district judges. Both cases involve plaintiffs denied a concealed-carry license solely for failing to show a special need for self-defense. Bringing the first case are Brian Wrenn, the Second Amendment Foundation, Inc., and two of its other members. The second case features Matthew Grace and the Pink Pistols, an organization in which Grace and other members champion the right of sexual minorities to carry guns for self-defense.
In each case, the plaintiffs sought a preliminary injunction barring the District from enforcing the good-reason regulation. In March 2016, a district judge denied the Wrenn plaintiffs’ motion. Two months later, another district judge granted the Grace plaintiffs a preliminary injunction barring the District from enforcing the good-reason law against anyone. We combine the two appeals, over which we have jurisdiction under
II
We begin by asking if Grace and Wrenn have met their burden to show their Second Amendment challenges are likely to prevail. That question has several components in this case. In many areas of constitutional law, regulations that impose on rights are subject to one of three tests that are more or less stringent depending on the right and the burden at stake. So-called rational-basis review requires the challenged law to bear a rational link to a legitimate public interest. Intermediate scrutiny looks for a substantial link to an important interest. And strict scrutiny demands that a law be narrowly tailored to a compelling public interest. See generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 U.C.L.A. L. Rev. 1267 (2007).
Whether we need that three-tiered framework here is one issue we will address. Grace and Wrenn hope we can consider their challenge without bothering to decide which level of scrutiny to apply to the District’s regulation. In fact, the District shares that hope. For their part, Grace and Wrenn argue that we should deem the good-reason regulation invalid without applying tiers of scrutiny because this regulation is analogous to the “total ban” that the Supreme Court struck down in Heller I without pausing to weigh its benefits. The District, by contrast, thinks the law warrants no particular scrutiny because it does not burden protected rights at all.
apply intermediate scrutiny on the ground that the law’s burden is not substantial or falls outside the Amendment’s core.
Whichever path we take, we must determine if the good-reason law impinges on a “core” Second Amendment right. So we begin there. The District argues that the Amendment’s core does not cover public carrying at all, or that it does not protect carrying in densely populated areas like D.C., or that it does not extend to carrying unless there is a special need for self-defense. We take these three arguments in turn before considering the analysis of other circuit courts. Having thus judged whether the regulation impinges on core Second Amendment conduct, we will turn in Part III to determining and applying the proper form of review for these cases.
A
The “core” or “central component” of the Second Amendment right to keep and bear arms protects “individual self-defense,” McDonald v. City of Chicago, 561 U.S. 742, 767-78 (2010) (internal quotation marks omitted), by “law-abiding, responsible citizens,” Heller I, 554 U.S. at 635—though subject to certain “longstanding” regulations that limit the Amendment’s scope, such as bans on possession “by felons and the mentally ill,” id. No one doubts that under Heller I this core protection covers the right of a law-abiding citizen to keep in the home common firearms for self-defense.
Our first question is whether the Amendment’s “core” extends to publicly carrying guns for self-defense. The District argues that it does not, citing Heller I’s observation that “the need for defense of self, family, and property is most acute” in the home. Id. at 628. But the fact that the need for self-defense is most pressing in the home doesn’t mean that self-defense at home is the only right at the Amendment’s core. After all, the
Amendment’s “core lawful purpose” is self-defense, id. at 630, and the need for that might arise beyond as well as within the home. Moreover, the Amendment’s text protects the right to “bear” as well as “keep” arms. For both reasons, it’s more natural to view the Amendment’s core as including a law-abiding citizen’s right to carry common firearms for self-defense beyond the home (subject again to relevant “longstanding” regulations like bans on carrying “in sensitive places”). Id. at 626.
This reading finds support in parts of Heller I that speak louder than the Court’s aside about where the need for guns is “most acute.” That remark appears when Heller I turns to the particular ban on possession at issue there. By then the Court has spent over fifty pages giving independent and seemingly equal treatments to the right to “keep” and to “bear,” first defining those “phrases” and then teasing out their implications. See id. at 570-628. In that long preliminary analysis, the Court elaborates that to “bear” means to “‘wear, bear, or carry . . . 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.’” Id. at 584 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). That definition shows that the Amendment’s core must span, in the Court’s own words, the “right to possess and carry weapons in case of confrontation.” Id. at 592 (emphasis added).
This first gloss on the Amendment’s text and Heller I’s reasoning is reinforced by the history that Heller I deems essential for tracing the “pre-existing right” embodied by the Amendment. Id. at 592. Heller I pores over early sources to show that while preventing Congress from eliminating state militias was the “purpose that prompted the [Amendment’s] codification,” that purpose did not limit the right’s substance,
which encompassed the personal right to armed self-defense. Id. at 599-600. Crucially, Heller I winds its way to this conclusion through a parade of early English, Founding-era, antebellum, and late-nineteenth century cases and commentaries. Those same sources attest that the Second Amendment squarely covers carrying beyond the home for self-defense.
Most of the relevant nineteenth-century cases, for example, assume the importance of carrying as well as possessing. Each puts another crack in the District’s argument that carrying was peripheral to the right protected by the Amendment. See Heller I, 554 U.S. at 611-14, 629 (citing State v. Reid, 1 Ala. 612, 616-17 (1840) (allowing restrictions on the “manner of bearing arms” but not limits on carrying so severe “as to render [arms] wholly useless for the purpose of defence”); Nunn v. State, 1 Ga. 243, 251 (1846) (invalidating a ban on carrying insofar as it prohibited “bearing arms openly”); State v. Chandler, 5 La.Ann. 489 (1850) (observing that the Amendment shields a right to open carry); Johnson v. Tompkins, 13 F. Cas. 840, 852 (C.C. Pa. 1833) (finding in the Second Amendment and a state analogue “a right to carry arms in defence of [one’s] property or person, and to use them, if . . . assailed with such force, numbers, or violence as made it necessary for [one’s] protection or safety”); Andrews v. State, 50 Tenn. 165, 187 (1871) (invalidating a ban on carrying pistols “publicly or privately, without regard to time or place, or circumstances”)); see also Peruta v. Cty. of San Diego, 742 F.3d 1144, 1174 (9th Cir. 2014), vacated, 781 F.3d 1155, 1156-63 (9th Cir. 2015) (citing Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 93 (1822) (striking down a prohibition on “wearing concealed arms”); Cockrum v. State, 24 Tex. 394, 403 (1859) (allowing bans on the carrying of “exceeding[ly] destructive weapon[s],” but not total bans)). Indeed, the few nineteenth-century cases that upheld onerous limits on carrying against
challenges under the Second Amendment or close analogues are sapped of authority by Heller I because each of them assumed that the Amendment was only about militias and not personal self-defense. So Heller I rejects their crucial premise. “And with these cases off the table, the remaining cases speak with one voice” on the Amendment’s coverage of carrying as well as keeping arms. Peruta, 742 F.3d at 1174. Under Heller I’s treatment of these and earlier cases and commentaries, history matters, and here it favors the plaintiffs.
The District retorts that self-defense in public must fall outside the Amendment’s core protections because the Amendment was codified in order to keep Congress from eliminating state militias, a purpose that doesn’t require allowing people to carry guns in times of peace. But again, it was Heller I’s central holding that the reason for the Amendment’s passage
We say “generally” because, as noted, the Supreme Court has taught in Heller I that legal regulations of possession or carrying that are “longstanding”—including bans on possession by felons or bans on carrying near sensitive sites—reflect limits to the preexisting right protected by the Amendment. Id. at 626, 635. The District contends that this doctrine rescues the good-reason law. In the District’s telling, Anglo-American history reveals two “longstanding” practices that so shrank the right later enshrined by the Amendment as to leave good-reason laws beyond its reach: so-called Northampton laws and surety laws.
B
Whatever the right to carry might cover, the District contends, it does not protect carrying in densely populated or urban areas like Washington, D.C. That is because the English right to bear arms had for centuries been fenced in by the Statute of Northampton, a law that banned carrying firearms in crowded areas. Indeed, Northampton-like laws had migrated to some colonies by the late 1700s, and then to several states in the mid-to-late 1800s. Thus, the District argues, the preexisting right codified by the Second Amendment did not (or did not at its core2) cover carrying in densely populated areas like D.C.
That argument pulls us—and both parties and several scholars—into dense historical weeds. The original Northampton statute took effect in 1328. Its language will faintly remind Anglophiles of studying Canterbury Tales—in the original. The rest of us may rest assured that the details of the text will matter less here than they did in English Lit:
[I]t is enacted, that no man . . . of what condition soever he be, except the king’s servants in his presence, and his ministers . . . and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence
of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure.
S.A. 36. The District argues that by forbidding all but the king’s servants and ministers to bring “force in affray of the peace” or to “go [or] ride armed by night or by day” in “fairs” or “markets,” this statute banned carrying in densely populated areas. So carrying in urban areas like D.C., the argument goes, falls beyond the Amendment’s perimeter or at least its core.
The plaintiffs answer that the Supreme Court neutralized this argument in Heller I by citing Blackstone’s understanding that Northampton banned only the carrying of “dangerous and unusual weapons.” 554 U.S. at 627 (internal
Happily, though, the state of the law in Chaucer’s England—or for that matter Shakespeare’s or Cromwell’s—is not decisive here. Heller I holds that by the time of the Founding, the “preexisting right” enshrined by the Amendment had ripened to include carrying more broadly than the District contends based on its reading of the 14th-century statute.
For one thing, the history showcased in Heller I contradicts the main scholar whose work the District cites for
the idea that Northampton banned all carrying in crowded areas (as opposed to carrying dangerous arms or carrying so as to terrify). On that scholar’s view, Northampton so narrowed the English right embodied by the Amendment that “individual self-defense beyond the home deserves only minimalist protection or categorical exclusion.” Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 43 (2012). This view runs headlong into the history cited by the Supreme Court to show that the English “right secured in 1689 . . . was by the time of the founding understood to be an individual right protecting against both public and private violence,” Heller I, 554 U.S. at 594, so that the resulting Amendment guarantees the right to “possess and carry weapons in case of confrontation,” id. at 592 (emphasis added).
Early commentators seem to confirm that whatever Northampton banned on the shores of England or colonial America, the right to bear arms by the time of the Founding was thought to protect carrying for self-defense generally. Thus, Heller I cites the view of James Wilson—early commentator, virtual coauthor of the Constitution, and member of the Supreme Court’s first cohort—that Founding-era Northampton laws banned only the carrying of “dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.” James Wilson, The Works of the Honourable James Wilson 79 (1804); see also Heller I, 554 U.S. at 627. Even more explicit (if less prominent) is one early commentary’s observation that while
[r]iding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the people of the land . . . it should be remembered, that in this country the constitution guaranties to all persons the right to
bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify the people unnecessarily.
Charles Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (Lexington, Ky., William Gibbes Hunt 1822); see also 1 William Hawkins, A Treatise of the Pleas of the Crown 135, ch. 63, § 4, at 135 (1716) (“[N]o wearing of arms is within the meaning of this statute, unless it be accompanied with such circumstances as are apt to terrify the people.”).
So in light of Heller I, we can sidestep the historical debate on how the first Northampton law might have hindered Londoners in the Middle Ages. Common-law rights developed over time, and American commentaries spell out what early cases imply: the mature right captured
C
The District argues for one other limit to the Amendment: that its core excludes carrying absent special self-defense needs because carrying was always cabined by English “surety laws.” These laws provided that if Oliver carried a pistol and Thomas said he reasonably feared that Oliver would injure him or breach the peace, Oliver had to post a bond to be used to cover any damage he might do, unless he proved he had reason to fear injury to his person or family or property. Grace S.A. 21-22. The District cites these laws as early precursors of its good-reason law to show that the conduct it blocks lies outside the Amendment’s core.
But surety laws did not deny a responsible person carrying rights unless he showed a special need for self-defense. They only burdened someone reasonably accused of posing a threat. And even he could go on carrying without criminal penalty. He simply had to post money that would be forfeited if he breached the peace or injured others—a requirement from which he was exempt if he needed self-defense. Under surety laws, put simply, everyone started out with robust carrying rights. Those reasonably accused were then burdened. And only then did self-defense needs make a difference, by exempting even the accused from that burden. A showing of special need did not expand carrying for the responsible; it shrank burdens on carrying by the (allegedly) reckless.
More importantly, even if surety laws had made responsible citizens’ freedom to carry turn on their need for self-defense, these laws would do little for the District’s case. The Supreme Court has denied that indirect or purely civil burdens shed much light on the historical right embedded by the Amendment. In his Heller I dissent, Justice Breyer cited several laws to contradict the majority’s reading of the Amendment, but the Court set them aside on the ground that “[a]ll of them” involved only “a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail)” rather than “significant criminal penalties.” Such regulations, the Court reasoned, are “akin to modern penalties for minor public-safety infractions like speeding or jaywalking,” which makes them (in the Court’s view) poor evidence of limits on the Amendment’s scope. 554 U.S. at 633-34.
Reading the Amendment, applying Heller I’s reasoning, and crediting key early sources, we conclude: the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those
lacking special self-defense needs—falls within the core of the Second Amendment’s protections.
D
Other circuits reviewing good-reason regulations have disagreed, holding that burdens on carrying trigger only intermediate scrutiny because the right to carry merits less protection than the right to possess in Heller I. Each circuit court justifying this modest review of good-reason laws has relied on an inference from the tolerance in American law for certain other carrying regulations. But each of these courts has also dispensed with the historical digging that would have exposed that inference as faulty—digging that Heller I makes essential to locating the Amendment’s edge, or at least its core.
also been subject to longstanding regulations: Heller I itself
Kachalsky also notes that while several nineteenth-century courts may have struck down total bans on carrying, three upheld bans on bearing concealed or concealable weapons. Id. at 90, 94. The Fourth Circuit makes a similar point in applying intermediate scrutiny to another good-reason law. See Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013) (quoting United States v. Masciandaro, 638 F.3d 458, 470-71 (4th Cir. 2011) for the proposition that “as we move outside the home, firearm rights have
There is, however, an easy way to explain the many cases tolerating limits on bearing, despite the parity of keeping and bearing in the Amendment’s text, in Heller I’s textual analysis, in early commentaries, and in most early cases. The rights to keep and to bear, to possess and to carry, are equally important inasmuch as regulations on each must leave alternative channels for both. See Heller II, 670 F.3d at 1262 (analogizing certain gun laws deserving modest review to regulations that leave “ample alternative channels” for speech). It’s simply that traditional carrying restrictions have generally left ample opportunities for bearing arms. To address an example cited by the Second Circuit, bans on carrying only in small pockets of the outside world (e.g., near “sensitive” sites, Heller I, 554 U.S. at 626-27) impose only lightly on most people’s right to “bear arms” in public. As Judge Posner writes: “[W]hen a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places . . . .” Moore, 702 F.3d at 940. By contrast, a ban on owning or storing guns at home leaves no alternative channels for keeping arms.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
My colleagues conclude that the District’s “good reason” regulation is categorically barred by the Second Amendment. I disagree.1
Assuming arguendo that the Second Amendment’s individual right to keep and bear arms extends beyond the home,2 see Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (declining “to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home”); Peruta v. Cty. of San Diego, 824 F.3d 919, 927 (9th Cir. 2016) (en banc) (same); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013) (same); Kachalsky v. Cty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (same), the proper standard of review “depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” Heller v. D.C. (Heller II), 670 F.3d 1244, 1257 (D.C. Cir. 2011) (quoting United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010)). “Nothing in Heller [I] suggests a case involving a restriction significantly less severe than the total prohibition of handguns at issue there could or should be resolved without reference to one or another of the familiar constitutional standards of scrutiny.” Id. at 1266 (internal quotation marks omitted). Although “a regulation that imposes a substantial burden upon the core right of self-defense protected by the Second Amendment must have a strong
justification, . . . a regulation that imposes a less substantial burden should be proportionately easier to justify.” Id. at 1257.
The sole Second Amendment “core” right is the
record.3 Kachalsky, 701 F.3d at 91 (“History and tradition do not speak with one voice here. What history demonstrates is that states often disagreed as to the scope of the right to bear arms, whether the right was embodied in a state constitution or the Second Amendment.”); Drake, 724 F.3d at 431 (same); Masciandaro, 638 F.3d at 470-71 (“[A]s we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.”); cf. Peruta, 824 F.3d at 939 (in U.S. history, “the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public”). I would join these circuits and find that the “core” Second Amendment right does not extend beyond the home given the history upholding “public carry” regulations, a history “enshrined with[in] the scope of the Second Amendment when it was adopted.” Kachalsky, 701 F.3d at 96 (alteration in original) (“The historical prevalence of the regulation of firearms in public demonstrates that while the Second Amendment’s core concerns are strongest inside hearth and home, states have long recognized a countervailing and competing set of
concerns with regard to handgun ownership and use in public.”). Regulations restricting public carrying are all the more compelling in a geographically small but heavily populated urban area like the District. See Joseph Blocher, Firearm Localism, 123 YALE L.J. 82, 108 (2013) (“American cities have traditionally had much more stringent gun control than rural areas.”).
Because the District’s good reason regulation does not affect firearm possession within the home and therefore does not “impose[] a substantial burden upon the core right of self-defense protected by the Second Amendment,” I believe the correct standard of review is, at most, intermediate scrutiny. Heller II, 670 F.3d at 1257; accord Woollard, 712 F.3d at 878 (recognizing “longstanding out-of-the-home/in-the-home distinction bear[ing] directly on
(Henderson, J., concurring in part and dissenting in part) (quoting Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585 n. 7 (1983)).
As I have previously written, two additional well-grounded principles should guide the intermediate scrutiny analysis of the District’s good reason regulation. Id. at 282-84. First, “the nature of firearms regulation requires ample deference to the legislature.” Id. at 282. Ample deference stems from the recognition that gun laws involve a “‘complex and dynamic’ issue implicating ‘vast amounts of data’ that the legislature is far better equipped to gather and analyze.” Id. (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662-64 (1994)); cf. Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010) (in national security context, “information can be difficult to obtain and the impact of certain conduct difficult to assess”).
Second, the District of Columbia is unique. Heller III, 801 F.3d at 283 (Henderson, J., concurring in part and dissenting in part). It is the seat of our national government, “a city full of high-level government officials, diplomats, monuments, parades, protests and demonstrations and, perhaps most pertinent, countless government buildings where citizens are almost universally prohibited from possessing firearms.” Id. Accordingly, our analysis should reflect an appreciation of “the unique challenges that confront the District as it struggles to regulate firearms in our Nation’s capital.” Id. (citing City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 439-40 (2002)).
I believe the District’s good reason regulation passes muster under intermediate scrutiny. The District identifies two important government objectives underlying its licensing regime: the prevention of crime and the promotion of public safety. Wrenn Appellee Br. 41. In Heller III, we held, unsurprisingly, that “promoting public safety” is indeed a
substantial government interest.4 Heller III, 801 F.3d at 274. The District has provided evidence that its licensing regime “promotes [that] substantial governmental interest [in a way] that
[i]t is the legislature’s job, not ours, to weigh conflicting evidence and make policy judgments. Indeed, assessing the risks and benefits of handgun possession and shaping a licensing scheme to maximize the competing public-policy objectives, as [the District] did, is precisely the type of discretionary judgment that officials in the
legislative and executive branches of state government regularly make.
Kachalsky, 701 F.3d at 99. At bottom, firearms regulation “is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights . . . . If ever there was an occasion for restraint, this would seem to be it.” Masciandaro, 638 F.3d at 475-76.
Accordingly, I respectfully dissent.