DICK ANTHONY HELLER, ET AL., APPELLANTS v. DISTRICT OF COLUMBIA, ET AL., APPELLEES
No. 10-7036
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2010 Decided October 4, 2011
Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-01289)
William J. Olson, Herbert W. Titus, and John S. Miles were on the brief for amici curiae Conservative Legal Defense and Education Fund, et al. in support of appellants.
Todd S. Kim, Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Peter J. Nickles, Attorney General, Donna M. Murasky, Deputy Solicitor General, and Holly M. Johnson, Assistant Attorney General.
Paul R.Q. Wolfson, A. Stephen Hut, Jr., Joshua M. Salzman, and Jonathan E. Lowy were on the brief for amici curiae The Brady Center to Prevent Gun Violence, et al. in support of appellees.
Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
I. Background 4
II. Analysis 8
A. Statutory Authority 9
B. The Second Amendment 12
1. The Heller Decision 12
2. The Constitutional Framework 13
3. Registration Requirements 15
a. Do the registration requirements impinge upon the Second Amendment right? 15
i. Basic registration requirements 15
ii. Novel registration requirements 19
b. Intermediate scrutiny is appropriate 20
c. Intermediate scrutiny requires remand 24
4. Assault Weapons and Large-Capacity Magazines 28
a. Do the prohibitions impinge upon the Second Amendment right? 29
b. Intermediate scrutiny is appropriate 31
c. The prohibitions survive intermediate scrutiny 33
III. Conclusion 36
A. Interpreting Heller and McDonald 36
B. Registration Requirements 42
C. Assault Weapons 42
Dissenting opinion filed by Circuit Judge KAVANAUGH.
GINSBURG, Circuit Judge: In June 2008 the Supreme Court held the District of Columbia laws restricting the possession of firearms in one‘s home violated the Second Amendment right of individuals to keep and bear arms. See District of Columbia v. Heller, 554 U.S. 570. In the wake of that decision, the District adopted the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17-372, which amended the Firearms Control Regulations Act of 1975, D.C. Law 1-85. The plaintiffs in the present case challenge, both facially and as applied to them, the provisions of the District‘s gun laws, new and old, requiring the registration of firearms and prohibiting both the registration of “assault weapons” and the possession of magazines with a capacity of more than ten rounds of ammunition. The plaintiffs argue those provisions (1) are not within the District‘s congressionally delegated legislative authority or, if they are, then they (2) violate the Second Amendment.
The district court granted summary judgment for the District and the plaintiffs appealed. We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements. We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented.
In Heller, the Supreme Court held the Second Amendment protects “an individual right to keep and bear arms,” 554 U.S. at 595, but not a right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” id. at 626. More specifically, the Court held unconstitutional the District‘s “ban on handgun possession in the home” as well as its “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense,” id. at 635, noting “the inherent right of self-defense [is] central to the Second Amendment right,” id. at 628. Therefore, unless the plaintiff was “disqualified from the exercise of Second Amendment rights” for some reason, such as a felony conviction, the District had to permit him to register his handgun. Id. at 635.
Shortly after the Supreme Court issued its decision in Heller, the D.C. Council passed emergency legislation in an effort to conform the District‘s laws to the Supreme Court‘s holding while it considered permanent legislation. The Council‘s Committee on Public Safety and the Judiciary then held three public hearings on the subject. In December 2008, upon the Committee‘s recommendation, the full Council passed the FRA. 56 D.C. Reg. 3438 (May 1, 2009).
The plaintiffs challenge a host of provisions of the new scheme for regulating firearms.* First they object to the
general requirement that owners register their firearms,
- Disclose certain information about himself — such as his name, address, and occupation — and about his firearm.
§ 7-2502.03(b) . - Submit “for a ballistics identification procedure” each pistol to be registered.
§ 7-2502.03(d) . Ballistics testing is not required for long guns. Seeid. - Appear in person and, at the MPD‘s request, bring with him the firearm to be registered.
§ 7-2502.04(c) . - Register no more than one pistol in a 30-day period.
§ 7-2502.03(e) . - Renew each registration certificate “3 years after the date of issuance.”
§ 7-2502.07a(a) . In order to renew the certificate, the applicant must “submit a statement ... attesting to” his current address, possession of the firearm, and compliance with the registration requirements in§ 7-2502.03(a) .§ 7-2502.07a(c) .
In addition, the plaintiffs challenge five requirements that are more similar to licensing the owner of the firearm than to
- Have vision qualifying one for a driver‘s license.
§ 7-2502.03(a)(11) . - Demonstrate knowledge of the District‘s laws pertaining to firearms “and, in particular, the safe and responsible use, handling, and storage of the same.”
§ 7-2502.03(a)(10) . - Submit to being fingerprinted and photographed.
§ 7-2502.04 ; D.C. Mun. Regs. tit. 24, § 2312.1–2. - Undergo a background check every six years to confirm his continuing compliance with the registration requirements in
§ 7-2502.03(a) .§ 7-2502.07a(d) . - Attend a firearms training or safety course providing “a total of at least one hour of firing training at a firing range and a total of at least 4 hours of classroom instruction.”
§ 7-2502.03(a)(13)(A) .
Second, the plaintiffs challenge the District‘s prohibitions of “assault weapon[s],”
Plaintiffs Mark Snyder and Absalom F. Jordan, Jr. complied with the registration requirements and successfully registered a rifle and a pistol respectively. Plaintiff Jordan, however, was unable to register two additional pistols due to the one-gun-per-30-days limit. Three of the plaintiffs, Dick Anthony Heller, William Carter, and Jordan applied to register semi-automatic rifles, but the MPD denied their applications because it found the firearms were prohibited “assault weapons.” Plaintiff Heller was also denied registration of a pistol because the magazine had a capacity of 15 rounds.*
II. Analysis
Pursuant to the principle of constitutional avoidance, we “resolve statutory questions at the outset where to do so might obviate the need to consider a constitutional issue.” United States v. Wells Fargo Bank, 485 U.S. 351, 354 (1988).
A. Statutory Authority
The Congress in 1878 permanently established a Board of Commissioners, to which it delegated regulatory authority over the District in discrete areas of policy. Organic Act of June 11, 1878, ch. 180, 20 Stat. 102, 103; see also District of Columbia v. John R. Thompson Co., 346 U.S. 100, 111 (1953) (under Organic Act, “municipal government was confined to mere administration” (internal quotation marks omitted)). The Congress passed the 1906 Act in part to grant the Board the specific authority to regulate firearms:
the Commissioners of the District of Columbia are hereby authorized and empowered to make and enforce all such usual and reasonable police regulations ... as they may deem necessary for the regulation of firearms, projectiles, explosives, or weapons of any kind in the District of Columbia.
Act of June 30, 1906, ch. 3932, § 4, 34 Stat. 808, 809 (emphasis added), amended and codified at
In 1973 the Congress passed the District of Columbia Home Rule Act (HRA), see District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774 (codified as amended at
Except as provided in [certain sections not relevant here], the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this [Act] ....
The plaintiffs argue the District‘s authority to regulate firearms remains limited by the 1906 Act, and that Act prevents the District from promulgating the gun laws challenged here. Specifically, the plaintiffs argue the D.C. gun laws are not “usual” because they are not commonly found in either state or federal law and they are also unreasonable. (They maintain the Eighth Amendment case law concerning what is “unusual” should inform our analysis of whether these laws are “usual.“) The District defends the challenged laws as both “usual and reasonable.” It argues a regulation is “usual” if any other jurisdiction has or has had a law addressing similar subject matter.
In any event the District argues, and the United States as amicus curiae agrees, its authority in the HRA over “all rightful subjects of legislation” affirmatively gives it the power to enact the challenged gun laws. The plaintiffs respond to that argument with the observation that the 1906 Act should not be “deemed amended or repealed” because the HRA did not “specifically provide[]” for repeal and the 1906 Act is not “inconsistent with” the HRA. See
Insofar as the 1906 Act remains effective, it serves only to clarify that the new D.C. Council is the body responsible for the “function” of regulating firearms, as stated in
all functions granted to or imposed upon, or vested in or transferred to the District of Columbia Council, as established by Reorganization Plan No. 3 of 1967, shall be carried out by the Council in accordance with the provisions of this chapter.
B. The Second Amendment
Having determined the District had the statutory authority to promulgate the challenged gun laws, we next consider whether those laws are consistent with the Second Amendment: “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.” To determine how we are to approach this question, we begin with Heller.
1. The Heller Decision
In Heller the Supreme Court explained the Second Amendment “codified a pre-existing” individual right to keep and bear arms, 554 U.S. at 592, which was important to Americans not only to maintain the militia, but also for self-defense and hunting, id. at 599. Although “self-defense had little to do with the right‘s codification[,] it was the central component of the right itself.” Id.
Still, the Court made clear “the right secured by the Second Amendment is not unlimited,” id. at 626, and it gave some examples to illustrate the boundaries of that right. For instance, the Court noted “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Id. at 625 (citing United States v. Miller, 307 U.S. 174 (1939)). This limitation upon the right to keep and bear arms was “supported by the historical tradition of prohibiting the
The Court identified other historical limitations upon the scope of the right protected by the Second Amendment. For example, it noted “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” Id. at 626. It also provided a list of some “presumptively lawful regulatory measures“:
nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 626–27 & n.26. The Court made clear, however, it was not “undertak[ing] an exhaustive historical analysis today of the full scope of the Second Amendment.” Id. at 626.
2. The Constitutional Framework
Under Heller, therefore, there are certain types of firearms regulations that do not govern conduct within the scope of the Amendment. We accordingly adopt, as have other circuits, a two-step approach to determining the constitutionality of the District‘s gun laws. Ezell v. City of Chicago, 651 F.3d 684, 701-03 (7th Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny. See Ezell, 651 F.3d at 701-03; Chester, 628 F.3d at 680; Reese, 627 F.3d at 800–01; Marzzarella, 614 F.3d at 89; see also Nordyke v. King, 644 F.3d 776, 786 (9th Cir. 2011) (“only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment“). As explained below, and again in keeping with other circuits, we think that insofar as the laws at issue here do impinge upon a Second Amendment right, they warrant intermediate rather than strict scrutiny.
With respect to the first step, Heller tells us “longstanding” regulations are “presumptively lawful,” 554 U.S. at 626–27 & n.26; that is, they are presumed not to burden conduct within the scope of the Second Amendment. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (Heller “did not cast doubt on [certain types of] longstanding regulatory measures“); Chester, 628 F.3d at 679 (Heller “acknowledged that the scope of the Second Amendment is subject to historical limitations“); Marzzarella, 614 F.3d at 91 (Heller indicates “longstanding limitations are exceptions to the right to bear arms“); United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (Heller “identified limits” of the Second Amendment based upon “various historical restrictions on possessing and carrying weapons“). This is a reasonable presumption because a regulation that is “longstanding,” which necessarily means it has long been accepted by the public, is not likely to burden a constitutional right; concomitantly the activities covered by a longstanding regulation are presumptively not protected from regulation by the Second Amendment. A plaintiff may rebut this
3. Registration Requirements
To apply this analytical framework, we first consider whether each of the challenged registration requirements impinges upon the right protected by the Second Amendment. We uphold the requirement of mere registration because it is longstanding, hence “presumptively lawful,” and the presumption stands unrebutted. Other registration requirements we remand to the district court, as explained below, for further proceedings.
a. Do the registration requirements impinge upon the Second Amendment right?
The plaintiffs argue the registration requirements are not longstanding and therefore not presumptively lawful, and in fact impermissibly burden the right protected by the Second Amendment. The District responds that registration requirements have been accepted throughout our history, are not overly burdensome, and therefore do not affect the right protected by the Second Amendment.
i. Basic registration requirements
The record supports the view that basic registration of handguns is deeply enough rooted in our history to support the presumption that a registration requirement is constitutional. The Court in Heller considered “prohibitions on the possession of firearms by felons” to be “longstanding” although states did not start to enact them until the early 20th century. See C. Kevin Marshall, Why Can‘t Martha Stewart
Registration typically required that a person provide to the local Government a modicum of information about the registrant and his firearm. A 1911 New York statute delegated the record keeping function to sellers of concealable firearms, requiring them to “keep a register” recording the “date of sale, name, age, occupation and residence of every purchaser of such a [firearm], together with the calibre, make, model, manufacturer‘s number or other mark of identification on such [firearm],” which register had to be “open at all reasonable hours for the inspection of any peace officer.” Act of May 25, 1911, ch. 195, § 2, 1911 N.Y. Laws 444–45. Similar laws had already been enacted by Illinois, Act of Apr. 16, 1881, ¶ 90, and Georgia, Act of Aug. 12, 1910, No. 432, § 2, 1910 Ga. Laws 134, 135 (official who grants license to carry pistol or revolver “shall keep a record of the name of the person taking out such license, the name of the maker of the fire-arm to be carried, and the caliber and number of the same“). Other states were soon to do so. See Oregon, Act of Feb. 21, 1917, ch. 377, 1917 Or. Laws 804, 805–06; Michigan, Act of June 2, 1927, No. 372, § 9, 1927 Mich. Laws 887, 891 (“any person within this state who owns or has in his possession a pistol” must “present such weapon for safety inspection to the commissioner or chief of police .... A certificate of inspection shall thereupon be issued ... and kept as a permanent official record for a period of six years“). In
In sum, the basic requirement to register a handgun is longstanding in American law, accepted for a century in diverse states and cities and now applicable to more than one fourth of the Nation by population.* Therefore, we presume
the District‘s basic registration requirement,
Several other of the District‘s registration requirements are not longstanding, including the ballistics-identification provision,
The requirements that are not longstanding, which include, in addition to those listed in the prior paragraph, all the requirements as applied to long guns, also affect the Second Amendment right because they are not de minimis.**
All of these requirements, such as the mandatory five hours of firearm training and instruction,
b. Intermediate scrutiny is appropriate
The plaintiffs argue strict scrutiny is the appropriate standard of review because, in holding the Fourteenth Amendment made the Second Amendment applicable to the States, the Court in McDonald described the right “to keep and bear arms [as] among those fundamental rights necessary to our system of ordered liberty,” 130 S. Ct. at 3042. The District responds that strict scrutiny would be inappropriate because, among other reasons, the right to keep and carry arms has always been heavily regulated; it argues we should
Heller clearly does reject any kind of “rational basis” or reasonableness test, see 554 U.S. at 628 n.27, but it leaves open the question what level of scrutiny we are to apply to laws regulating firearms. True, the Supreme Court often applies strict scrutiny to legislation that impinges upon a fundamental right. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988) (“classifications affecting fundamental rights are given the most exacting scrutiny” (citation omitted)). In applying strict scrutiny, the Court requires the Government to prove its law “furthers a compelling interest and is narrowly tailored to achieve that interest.” Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (internal quotation marks omitted). The Court has not said, however, and it does not logically follow, that strict scrutiny is called for whenever a fundamental right is at stake. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (applying intermediate scrutiny to restrictions on “time, place, or manner of protected speech“); Marzzarella, 614 F.3d at 96 (“Strict scrutiny does not apply automatically any time an enumerated right is involved“); Chester, 628 F.3d at 682 (“We do not apply strict scrutiny whenever a law impinges upon a right specifically enumerated in the Bill of Rights“); Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 697-98, 700 (2007) (“mere fact of ‘fundamentality’ does not answer the question of what would be the appropriate standard of review for the right to bear arms” as “many of the individual rights in the Bill of Rights do not trigger strict scrutiny, including many that are incorporated,” and “[e]ven among those incorporated rights that do prompt strict scrutiny, such as the freedom of speech and of religion, strict scrutiny is only occasionally applied“). Cf. Mills v. Habluetzel, 456 U.S. 91, 98-99 (1982) (disabilities attendant to illegitimacy are constitutional “to the
As with the First Amendment, the level of scrutiny applicable under the Second Amendment surely “depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” Chester, 628 F.3d at 682; see also Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 642 (1994) (“regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue” (citation omitted)); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985) (“We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser‘s rights are adequately protected as long as disclosure requirements are reasonably related to the State‘s interest in preventing deception of consumers.“); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1376 (2009) (“The case law dealing with free speech and the free exercise of religion provides a particularly good analogue” for Second Amendment). That is, a regulation that imposes a substantial burden upon the core right of self-defense protected by the Second Amendment must have a strong justification, whereas a regulation that imposes a less substantial burden should be proportionately easier to justify. See Turner I, 512 U.S. at 661 (“must-carry provisions do not pose such inherent dangers to free expression ... as to justify application of the most exacting level of First Amendment scrutiny“; rather,
As between strict and intermediate scrutiny, we conclude the latter is the more appropriate standard for review of gun registration laws. As the Third Circuit reasoned in Marzzarella with regard to a prohibition on possession of a firearm with the serial numbers obliterated, registration requirements “do[] not severely limit the possession of firearms.” 614 F.3d at 97. Indeed, none of the District‘s registration requirements prevents an individual from
c. Intermediate scrutiny requires remand
As for the novel registration requirements, to pass muster under intermediate scrutiny the District must show they are “substantially related to an important governmental objective.” Clark, 486 U.S. at 461; see also United States v. Williams, 616 F.3d 685, 692-94 (7th Cir. 2010) (prohibition of firearm possession by felons survives intermediate scrutiny). That is, the District must establish a tight “fit” between the registration requirements and an important or substantial governmental interest, a fit “that employs not necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired objective.” Fox, 492 U.S. at 480; see also Ward, 491 U.S. at 782-83 (“The requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation, and the means chosen are not substantially broader than necessary to achieve that interest“). We think the District has advanced, albeit incompletely — almost cursorily — articulated, two important governmental interests it may have in the registration requirements, viz., to protect police officers and to aid in crime control. Cf. United States v. Salerno, 481 U.S. 739, 750 (1987) (“the Government‘s general interest in preventing crime is compelling“). The Council Committee on Public Safety explained: “Registration is critical because it ... allows officers to determine in advance whether individuals involved in a call may have firearms ... [and] assists law enforcement in determining whether registered owners are
We cannot conclude, however, that the novel registration requirements — or any registration requirement as applied to long guns — survive intermediate scrutiny based upon the record as it stands because the District has not demonstrated a close fit between those requirements and its governmental interests. In support of the registration requirements, the District relies upon the Committee Report on the FRA, along with testimony and written statements submitted to the Committee at public hearings. Even so, the record is inadequate for us confidently to hold the registration requirements are narrowly tailored.
For example, the Committee Report asserts “studies show” that “laws restricting multiple purchases or sales of firearms are designed to reduce the number of guns entering the illegal market and to stem the flow of firearms between states,” and that “handguns sold in multiple sales to the same individual purchaser are frequently used in crime.” Id. at 10. The Report neither identifies the studies relied upon nor claims those studies showed the laws achieved their purpose,
Although we do “accord substantial deference to the predictive judgments” of the legislature, Turner Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 195 (1997) (quoting Turner I, 512 U.S. at 665) (internal quotation marks omitted), the District is not thereby “insulated from meaningful judicial review,” Turner I, 512 U.S. at 666 (controlling opinion of Kennedy, J.); see also City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 440 (2002) (plurality opinion) (citing Turner I and “acknowledg[ing] that the Los Angeles City Council is in a better position than the Judiciary to gather and evaluate data on local problems“). Rather, we must “assure that, in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence.” Turner II, 520 U.S. at 195 (quoting Turner I, 512 U.S. at 666) (internal quotation marks omitted). Therefore, the District needs to present some meaningful evidence, not mere assertions, to justify its predictive judgments. On the present record, we conclude the District has not supplied evidence adequate to show a substantial relationship between any of the novel registration requirements and an important governmental interest.
In the light of these evidentiary deficiencies and “the importance of the issues” at stake in this case, taking our cue from the Supreme Court in Turner I, we believe the parties should have an opportunity “to develop a more thorough factual record.” 512 U.S. at 664-68 (controlling opinion of Kennedy, J.). In Turner I, the Court had determined intermediate scrutiny was appropriate for the First Amendment challenge at issue. “On the state of the record developed [that] far,” however, the Government was unable to show the law was narrowly tailored. Id. at 665. Rather than invalidate a legislative judgment based upon that
4. Assault Weapons and Large-Capacity Magazines
Because the plaintiffs fail to present an argument in their briefs questioning the constitutionality of the ban on semi-automatic pistols and shotguns, see page 7 footnote * above, we construe the plaintiffs’ challenge to the ban on assault weapons as going only to the prohibition of certain semi-automatic rifles. We are not aware of evidence that prohibitions on either semi-automatic rifles or large-capacity magazines are longstanding and thereby deserving of a presumption of validity.* For the court to determine whether these prohibitions are constitutional, therefore, we first must ask whether they impinge upon the right protected by the Second Amendment. That is, prohibiting certain arms might not meaningfully affect “individual self-defense, [which] is ‘the central component’ of the Second Amendment right.” McDonald, 130 S. Ct. at 3036 (quoting Heller, 554 U.S. at 599). Of course, the Court also said the Second Amendment protects the right to keep and bear arms for other “lawful purposes,” such as hunting, but self-defense is the “core lawful purpose” protected, Heller, 554 U.S. at 630.
a. Do the prohibitions impinge upon the Second Amendment right?
The plaintiffs contend semi-automatic rifles, in particular the AR variants, are commonly possessed for self-protection in the home as well as for sport. They also argue magazines holding more than ten rounds are commonly possessed for self-defense and for other lawful purposes and that the prohibition of such magazines would impose a burden upon them. Specifically, they point out that without a large-capacity magazine it would be necessary, in a stressful situation, to pause in order to reload the firearm.
The District, by contrast, argues neither assault weapons nor weapons with large-capacity magazines are among the “Arms” protected by the Second Amendment because they are both “dangerous and unusual,” Heller, 554 U.S. at 627 (internal quotation marks omitted), and because prohibiting them minimally burdens the plaintiffs; hence the District maintains the bans are constitutional. The Committee on
The District likewise contends magazines holding more than ten rounds are disproportionately involved in the murder of law enforcement officers and in mass shootings, and have little value for self-defense or sport. It cites the Siebel testimony, which relies upon a report of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) stating that semi-automatic rifles with large-capacity magazines are not suitable for sporting purposes. The District also reasons that the usefulness of large-capacity magazines for self-defense in rare circumstances does not mean the burden imposed upon the plaintiffs is more than minimal.
We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in “common use,” as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000. There may well be some capacity above which magazines are not in common use but, if so, the record is
Nevertheless, based upon the record as it stands, we cannot be certain whether these weapons are commonly used or are useful specifically for self-defense or hunting and therefore whether the prohibitions of certain semi-automatic rifles and magazines holding more than ten rounds meaningfully affect the right to keep and bear arms. We need not resolve that question, however, because even assuming they do impinge upon the right protected by the Second Amendment, we think intermediate scrutiny is the appropriate standard of review and the prohibitions survive that standard.
b. Intermediate scrutiny is appropriate
As we did in evaluating the constitutionality of certain of the registration requirements, we determine the appropriate standard of review by assessing how severely the prohibitions burden the Second Amendment right. Unlike the law held unconstitutional in Heller, the laws at issue here do not prohibit the possession of “the quintessential self-defense weapon,” to wit, the handgun. 554 U.S. at 629. Nor does the ban on certain semi-automatic rifles prevent a person from keeping a suitable and commonly used weapon for protection in the home or for hunting, whether a handgun or a non-automatic long gun. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 185 (1995) (revolvers and semi-automatic pistols are together used almost 80% of the time in incidents of self-defense with a gun); Dep‘t of Treasury, Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles 38 (1998) (semi-automatic assault rifles studied are “not generally recognized as particularly suitable for or readily adaptable to sporting
In this we agree with the reasoning of the Third Circuit in Marzzarella. The court there applied intermediate scrutiny to the prohibition of unmarked firearms in part because it thought the ban was similar to a regulation “of the manner in which ... speech takes place,” a type of regulation subject to intermediate scrutiny “under the time, place, and manner doctrine” of the First Amendment. 614 F.3d at 97. Notably, because the prohibition left a person “free to possess any otherwise lawful firearm,” the court reasoned it was “more accurately characterized as a regulation of the manner in which persons may lawfully exercise their Second Amendment rights.” Id. Here, too, the prohibition of semi-automatic rifles and large-capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves. See Volokh, supra, at 1471 (“where content-neutral speech restrictions are involved, restrictions that impose severe burdens (because they don‘t leave open ample alternative channels) must be judged under strict scrutiny, but restrictions that impose only modest burdens (because they do leave open ample alternative
c. The prohibitions survive intermediate scrutiny
Recall that when subject to intermediate scrutiny the Government has the burden of showing there is a substantial relationship or reasonable “fit” between, on the one hand, the prohibition on assault weapons and magazines holding more than ten rounds and, on the other, its important interests in protecting police officers and controlling crime. The record evidence substantiates that the District‘s prohibition is substantially related to those ends.
The Committee on Public Safety relied upon a report by the ATF, which described assault weapons as creating “mass produced mayhem.” Assault Weapons Profile 19 (1994). This description is elaborated in the Siebel testimony for the Brady Center: “the military features of semiautomatic assault weapons are designed to enhance their capacity to shoot multiple human targets very rapidly” and “[p]istol grips on assault rifles ... help stabilize the weapon during rapid fire and allow the shooter to spray-fire from the hip position.” The same source also suggests assault weapons are preferred by criminals and place law enforcement officers “at particular risk ... because of their high firepower,” as does the ATF, see Dep‘t of Treasury, Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles 34-35, 38 (1998). See also Christopher S. Koper et al., U. Penn. Jerry Lee Ctr. of Criminology, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003, at 51, 87 (2004) (assault weapons “account for a larger share of guns used in mass murders and murders of police, crimes for which weapons with greater firepower would seem particularly useful,” and “criminal use of [assault
Heller suggests “M-16 rifles and the like” may be banned because they are “dangerous and unusual,” see 554 U.S. at 627. The Court had previously described the “AR-15” as “the civilian version of the military‘s M-16 rifle.” Staples v. United States, 511 U.S. 600, 603 (1994). Although semi-automatic firearms, unlike automatic M-16s, fire “only one shot with each pull of the trigger,” id. at 602 n.1, semi-automatics still fire almost as rapidly as automatics. See Testimony of Brian J. Siebel, Brady Center to Prevent Gun Violence, at 1 (Oct. 1, 2008) (“30-round magazine” of UZI “was emptied in slightly less than two seconds on full automatic, while the same magazine was emptied in just five seconds on semiautomatic“). Indeed, it is difficult to draw meaningful distinctions between the AR-15 and the M-16. See Staples, 511 U.S. at 603 (“Many M-16 parts are interchangeable with those in the AR-15 and can be used to convert the AR-15 into an automatic weapon“); Koper, supra, at 4 (AR-15 and other federally banned assault weapons “are civilian copies of military weapons and accept ammunition magazines made for those military weapons“). In short, the evidence demonstrates a ban on assault weapons is likely to promote the Government‘s interest in crime control in the densely populated urban area that is the District of Columbia. See Comm. on Pub. Safety, Report on Bill 17-593, at 4 (Nov. 25, 2008) (“The District shares the problem of gun violence with other dense, urban jurisdictions“).
We conclude the District has carried its burden of showing a substantial relationship between the prohibition of both semi-automatic rifles and magazines holding more than ten rounds and the objectives of protecting police officers and controlling crime. Accordingly, the bans do not violate the plaintiffs’ constitutional right to keep and bear arms.
For the reasons stated above, we affirm the judgment of the district court with respect, first, to the requirement of mere registration as applied to handguns and expressed in
So ordered.
Appendix: Regarding the Dissent
Our colleague has issued a lengthy dissenting opinion explaining why he would strike down both the District‘s registration requirements and its ban on semi-automatic rifles. We respond to his main arguments below.
A. Interpreting Heller and McDonald
A substantial portion of the dissent is devoted to arguing Heller and McDonald preclude the application of heightened (intermediate, or for that matter, strict) scrutiny in all Second Amendment cases. The dissent reasons that Heller rejected balancing tests and that heightened scrutiny is a type of
Our dissenting colleague asserts (at 25) heightened scrutiny is also “a form of interest balancing” and maintains that strict and intermediate scrutiny “always involve at least some assessment of whether the law in question is sufficiently important to justify infringement on an individual constitutional right.” Although, as he points out, the Supreme Court has in a few opinions applying heightened scrutiny — out of scores if not hundreds of such opinions — used the word “balance,” heightened scrutiny is clearly not the “interest-balancing inquiry” proposed by Justice Breyer and rejected by the Court in Heller. The Court there said, Justice Breyer‘s proposal did not correspond to any of “the traditionally expressed levels (strict scrutiny, intermediate
The dissent further contends McDonald confirms the Supreme Court‘s rejection of heightened scrutiny in Second Amendment cases because a plurality of the Court there said “Justice Breyer is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise.” 130 S. Ct. at 3050. That observation was clearly and specifically directed to Justice Breyer‘s interest-balancing inquiry, as the very next sentence shows: “As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion.” Id. Moreover, strict and intermediate scrutiny do not, as the dissent asserts (at 19), “obviously require assessment of the ‘costs and benefits’ of government regulations.” Rather, they require an assessment of whether a particular law will serve an important or compelling governmental interest; that is not a comparative judgment.
If the Supreme Court truly intended to rule out any form of heightened scrutiny for all Second Amendment cases, then it surely would have said at least something to that effect. Cf. Heller, 554 U.S. at 628 n.27 (expressly rejecting rational basis review). The Court did not say anything of the sort; the plaintiffs in this case do not suggest it did; and the idea that Heller precludes heightened scrutiny has eluded every circuit to have addressed that question since Heller was issued. See First Circuit: United States v. Booker, 644 F.3d 12, 25 (2011)(requiring “a substantial relationship between the restriction and an important governmental objective“); Third Circuit: Marzzarella, 614 F.3d at 97 (applying intermediate scrutiny); Fourth Circuit: United States v. Masciandaro, 638 F.3d 458, 471 (2011) (same); Chester, 628 F.3d at 683 (same); id. at 690 (Davis, J., concurring) (same); Seventh Circuit: Ezell, 2011 WL 2623511, at *17 (applying “more rigorous showing” than intermediate scrutiny, “if not quite ‘strict scrutiny‘“); id. at *21-22 (Rovner J., concurring) (endorsing intermediate scrutiny); Williams, 616 F.3d at 692-93 (applying intermediate scrutiny); United States v. Skoien, 614 F.3d 638, 641-42 (2010) (en banc) (upholding law upon assumption intermediate scrutiny applies); Ninth Circuit: Nordyke, 644 F.3d at 786 n.9 (reserving “precisely what type of heightened scrutiny applies to laws that substantially burden Second Amendment rights“); id. at 795 (Gould J., concurring in part, “would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment” and “would subject incidental burdens on the Second Amendment right ... to reasonableness review“); Tenth Circuit: Reese, 627 F.3d at 802 (applying intermediate scrutiny).
The dissent (at 30-31) takes us to task for suggesting a restriction on a core enumerated constitutional right can be subjected to intermediate scrutiny. This assertion, true or false, is simply misplaced; we apply intermediate scrutiny precisely because the District‘s laws do not affect the core right protected by the Second Amendment. See supra at 22-24, 31-32.
Unlike our dissenting colleague, we read Heller straightforwardly: The Supreme Court there left open and untouched even by implication the issue presented in this case. The Court held the ban on handguns unconstitutional
Having rejected the possibility of heightened scrutiny, the dissent (at 31) goes on to find in Heller this proposition: “Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not
In sum, Heller explicitly leaves many questions unresolved and says nothing to cast doubt upon the propriety of the lower courts applying some level of heightened scrutiny in a Second Amendment challenge to a law significantly less restrictive than the outright ban on all
B. Registration Requirements
Our dissenting colleague contends (at 47) the historical registration laws we cite do not support the District’s basic registration requirement because to rely upon those laws as historical precedents “is to conduct the Heller analysis at an inappropriately high level of generality.” In fact, however, the historical regulations and the District’s basic registration requirement are not just generally alike, they are practically identical: They all require gun owners to give an agent of the Government basic information about themselves and their firearm.
In any event, we do not decide, but rather remand to the district court, the question whether the District’s novel registration requirements and all its registration requirements as applied to long guns withstand intermediate scrutiny. See supra at 28. Accordingly, those registration requirements will be deemed constitutional only if the District shows they serve its undoubtedly important governmental interests in preventing crimes and protecting police officers.
C. Assault Weapons
In arguing Heller requires holding unconstitutional the District’s ban on certain semi-automatic rifles, the dissent relies heavily upon the idea that Heller held possession of semi-automatic handguns is “constitutionally protected.” The Court’s holding in Heller was in fact narrower, condemning as unconstitutional a prohibition of all handguns, that is, a ban
The dissent, indulging us by assuming some level of heightened scrutiny applies, maintains (at 37) “D.C. cannot show a compelling interest in banning semi-automatic rifles.” Why not? “[B]ecause the necessary implication of the decision in Heller is that D.C. could not show a sufficiently compelling interest to justify its banning semi-automatic handguns.” That conclusion, however, is neither to be found in nor inferred from Heller. As we explain above, the Court in Heller held the District’s ban on all handguns would fail constitutional muster under any standard of scrutiny because the handgun is the “quintessential” self-defense weapon. See 554 U.S. at 629 (“There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift
Finally, in criticizing our application of intermediate scrutiny to the ban on assault weapons, our dissenting colleague says (at 33, 40) “it is difficult to make the case that semi-automatic rifles are significantly more dangerous than semi-automatic handguns” “because handguns can be concealed.” It is not our place, however, to determine in the first instance whether banning semi-automatic rifles in particular would promote important law-enforcement objectives. Our role is narrower, viz., to determine whether the District has presented evidence sufficient to “establish the reasonable fit we require” between the law at issue and an important or substantial governmental interest. Fox, 492 U.S. at 480.
KAVANAUGH, Circuit Judge, dissenting: The
In Heller, the Court ruled that the District of Columbia’s ban on the possession of handguns violated the Second Amendment. 554 U.S. at 635. In the wake of Heller, the District of Columbia enacted a new gun law. As relevant here, D.C. bans possession of most semi-automatic rifles and requires registration of all guns possessed in the District of Columbia. See
In this case, we are called upon to assess those provisions of D.C.’s law under Heller. In so doing, we are of course aware of the longstanding problem of gun violence in the District of Columbia. In part for that reason, Heller has engendered substantial controversy. See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253 (2009); Richard A. Posner, In Defense of Looseness, THE NEW REPUBLIC, Aug. 27, 2008, at 32. As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction. Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.
In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.
In Heller, the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)1
D.C.’s registration requirement, which is significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional. Heller and later McDonald said that regulations on the sale, possession, or use
It bears emphasis that Heller, while enormously significant jurisprudentially, was not revolutionary in terms of its immediate real-world effects on American gun regulation. Indeed, Heller largely preserved the status quo of gun regulation in the United States. Heller established that traditional and common gun laws in the United States remain constitutionally permissible. The Supreme Court simply pushed back against an outlier local law – D.C.’s handgun ban – that went far beyond the traditional line of gun regulation. As Heller emphasized: “Few laws in the history of our Nation have come close to the severe restriction of the District’s” law. 554 U.S. at 629.3
After Heller, however, D.C. seemed not to heed the Supreme Court’s message. Instead, D.C. appeared to push the envelope again, with its new ban on semi-automatic rifles and its broad gun registration requirement. D.C.’s public safety motivation in enacting these laws is worthy of great respect. But the means D.C. has chosen are again constitutionally problematic. The D.C. gun provisions at issue here, like the ban at issue in Heller, are outliers that are not traditional or common in the United States. As with D.C.’s handgun ban, therefore, holding these D.C. laws unconstitutional would not lead to nationwide tumult. Rather, such a holding would maintain the balance historically and traditionally struck in the United States between public safety and the individual right to keep arms – a history and tradition that Heller affirmed and adopted as determining the scope of the Second Amendment right.
I
A key threshold question in this case concerns the constitutional test we should employ to assess the challenged provisions of the D.C. gun law. The Heller Court held that the Second Amendment guarantees an individual right to
In light of that limiting language in Heller, constitutional analysis of D.C.’s new law raises two main questions. Under Heller, what kinds of firearms may the government ban? And what kinds of regulations may the government impose on the sale, possession, or use of firearms?
Put in simple terms, the issue with respect to what test to apply to gun bans and regulations is this: Are gun bans and regulations to be analyzed based on the Second Amendment’s text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances, see infra Part I.B)? Or may judges recalibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right? And if the latter, is the proper test strict scrutiny or intermediate scrutiny?
As I read Heller, the Supreme Court was not silent about the answers to those questions. Rather, the Court set forth fairly precise guidance to govern those issues going forward.
A
In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny. To be sure, the Court never said something as succinct as “Courts should not apply strict or
As to bans on categories of guns, the Heller Court stated that the government may ban classes of guns that have been banned in our “historical tradition” – namely, guns that are “dangerous and unusual” and thus are not “the sorts of lawful weapons that” citizens typically “possess[] at home.” 554 U.S. at 627. The Court said that “dangerous and unusual weapons” are equivalent to those weapons not “in common use,” as the latter phrase was used in United States v. Miller, 307 U.S. 174, 179 (1939). Heller, 554 U.S. at 627. Thus, the “Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns” or automatic “M-16 rifles and the like.” Id. at 625, 627. That interpretation, the Court explained, “accords with the historical understanding of the scope of the right.” Id. at 625. “Constitutional rights,” the Court said, “are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Id. at 634-35. The scope of the right is thus determined by “historical justifications.” Id. at 635. And tradition (that is, post-ratification history) also matters because “examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification” is a “critical tool of constitutional interpretation.” Id. at 605 (emphasis omitted).
Because the D.C. law at issue in Heller banned handguns (including semi-automatic handguns), which have not
As to regulations on the sale, possession, or use of guns, Heller similarly said the government may continue to impose regulations that are traditional, “longstanding” regulations in the United States. Id. at 626-27. In McDonald, the Court reiterated that “longstanding regulatory measures” are permissible. McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (controlling opinion of Alito, J.). Importantly, the Heller Court listed several examples of such longstanding (and therefore constitutionally permissible) regulations, such as laws against concealed carry and laws prohibiting possession of guns by felons. 554 U.S. at 626. The Court stated that analysis of whether other gun regulations are permissible must be based on their “historical justifications.” Id. at 635.4
In disapproving D.C.’s ban on handguns, in approving a ban on machine guns, and in approving longstanding regulations such as concealed-carry and felon-in-possession laws, Heller established that the scope of the Second Amendment right – and thus the constitutionality of gun bans and regulations – is determined by reference to text, history, and tradition. As to the ban on handguns, for example, the Supreme Court in Heller never asked whether the law was
Moreover, in order for the Court to prospectively approve the constitutionality of several kinds of gun laws – such as machine gun bans, concealed-carry laws, and felon-in-possession laws – the Court obviously had to employ some test. Yet the Court made no mention of strict or intermediate scrutiny when approving such laws. Rather, the test the Court relied on – as it indicated by using terms such as “historical tradition” and “longstanding” and “historical justifications” – was one of text, history, and tradition. Id. at 626-27, 635; see Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1463 (2009) (“Absent [from Heller] is any inquiry into whether the law is necessary to serve a compelling government interest in preventing death and crime, though handgun ban proponents did indeed argue that such bans are necessary to serve those interests and that no less restrictive alternative would do the job.”); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. REV. 375, 380 (2009) (“Rather than adopting one of the First Amendment’s many Frankfurter-inspired balancing approaches, the majority endorsed a categorical test under which some types of ‘Arms’ and arms-usage are protected absolutely from bans and some types of ‘Arms’ and people are excluded entirely from constitutional coverage.”); id. at 405 (Heller “neither requires
B
Before addressing the majority opinion’s contrary analysis of Heller and McDonald, it is important to underscore two points regarding Heller’s focus on text, history, and tradition.
First, just because gun regulations are assessed by reference to history and tradition does not mean that governments lack flexibility or power to enact gun regulations. Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller.6 By contrast, if courts applied strict
scrutiny, then presumably very few gun regulations would be upheld. Indeed, Justice Breyer made this point in his dissent in Heller when he noted that the majority opinion had listed certain permissible gun regulations “whose constitutionality under a strict-scrutiny standard would be far from clear.” 554 U.S. at 688 (Breyer, J., dissenting).7
So the major difference between applying the Heller history- and tradition-based approach and applying one of the forms of scrutiny is not necessarily the number of gun regulations that will pass muster. Instead, it is that the Heller test will be more determinate and “much less subjective” because “it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor.” McDonald, 130 S. Ct. at 3058 (Scalia, J., concurring).
Second, when legislatures seek to address new weapons that have not traditionally existed or to impose new gun regulations because of conditions that have not traditionally existed, there obviously will not be a history or tradition of banning such weapons or imposing such regulations. That does not mean the Second Amendment does not apply to those weapons or in those circumstances. Nor does it mean that the government is powerless to address those new weapons or modern circumstances. Rather, in such cases, the proper interpretive approach is to reason by analogy from history and tradition. See Parker v. District of Columbia, 478 F.3d 370, 398 (D.C. Cir. 2007) (“[J]ust as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a ‘search,’ the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol.”) (emphasis added), aff’d sub nom. Heller, 554 U.S. 570; Tr. of Oral Arg. at 77, Heller,
The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The constitutional principles do not change (absent amendment), but the relevant principles must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown to the Constitution’s Framers. To be sure, applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins. But that is hardly unique to the Second Amendment. It is an essential component of judicial decisionmaking under our enduring Constitution.
C
The majority opinion here applies intermediate scrutiny and contends that intermediate scrutiny is consistent with Heller and McDonald. The majority opinion employs history and tradition only as a threshold screen to determine whether the law in question implicates the individual right; if so, the majority opinion then subjects the individual right to
Turning first to Heller: The back and forth between the Heller majority opinion and Justice Breyer’s dissent underscores that the proper Second Amendment test focuses on text, history, and tradition. In his dissent, Justice Breyer suggested that the Court should follow the lead of certain First Amendment cases, among others, that had applied a form of intermediate-scrutiny interest balancing:
The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402 (2000) (Breyer, J., concurring). . . .
In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our “sole obligation” in reviewing a legislature’s “predictive judgments” is “to assure that, in formulating its judgments,” the legislature “has drawn reasonable
inferences based on substantial evidence.” Turner, 520 U.S., at 195 (internal quotation marks omitted). And judges, looking at the evidence before us, should agree that the District legislature’s predictive judgments satisfy that legal standard. . . .
There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon, 528 U.S., at 402 (Breyer, J., concurring). . . .
The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative.
Heller, 554 U.S. at 689-90, 704-05, 714 (Breyer, J., dissenting).
Justice Breyer expressly rejected strict scrutiny and rational basis review. Instead, he explicitly referred to intermediate scrutiny and relied on cases such as Turner Broadcasting that had applied intermediate scrutiny. See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189-225 (1997). And he discussed the strength of the government’s interest and the fit between the law and those interests, as the Court does when applying heightened scrutiny. It is thus evident that Justice Breyer’s Heller dissent advocated a form of intermediate scrutiny.8
least.” 554 U.S. at 634 (emphasis added). Justice Breyer ruled out strict scrutiny and rational basis review and relied heavily on Turner Broadcasting, which had applied a form of intermediate scrutiny. But he was not explicit about the label for his test, as the Heller majority opinion noted. In that regard, it bears mention that strict scrutiny and intermediate scrutiny can take on different forms in different contexts that are sometimes colloquially referred to as, for example, strict-scrutiny-light or intermediate-scrutiny-plus or the like. How strong the government interest must be, how directly the law must advance that interest, how reasonable the alternatives must be — those questions are not always framed with precision in two clearly delineated categories, as opposed to points on a sliding scale of heightened scrutiny approaches. See, e.g., Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 387-88 (2000) (“a contribution limit involving significant interference with associational rights could survive if the Government demonstrated that contribution regulation was closely drawn to match a sufficiently important interest”) (citations and internal quotation marks omitted); United States v. Virginia, 518 U.S. 515, 531, 533 (1996) (referring to “skeptical scrutiny” and “heightened review” of gender-based law).
To be sure, the Court noted in passing that D.C.’s handgun ban would fail under any level of heightened scrutiny or review the Court applied. Id. at 628-29. But that was more of a gilding-the-lily observation about the extreme nature of D.C.’s law — and appears to have been a pointed comment that the dissenters should have found D.C.’s law unconstitutional even under their own suggested balancing approach — than a statement that courts may or should apply strict or intermediate scrutiny in
Is it possible, however, that the Heller Court was ruling out intermediate scrutiny but leaving open the possibility that
Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82 (1997); see Brief for Respondent 54-62. But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons, forfeiture by criminals of the
Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales — whose constitutionality under a strict-scrutiny standard would be far from clear.
Id. at 688 (Breyer, J., dissenting).
Justice Breyer thus perceived that the Court’s history- and tradition-based approach would likely permit governments to enact more gun laws and regulations than a strict scrutiny approach would allow. History and tradition establish that several gun regulations have co-existed with the
Even more to the point, as Justice Breyer also noted, the Court in Heller affirmatively approved a slew of gun laws — machine gun bans, concealed-carry laws, felon-in-possession laws, and the like — without analyzing them under strict scrutiny. The Court approved them based on a history- and tradition-based test, not strict scrutiny. Indeed, these laws might not have passed muster under a strict scrutiny analysis.
That language from McDonald is critically important because strict and intermediate scrutiny obviously require assessment of the “costs and benefits” of government regulations and entail “difficult empirical judgments” about their efficacy — precisely what McDonald barred. McDonald’s rejection of such inquiries, which was even more direct than Heller’s, is flatly incompatible with a strict or intermediate scrutiny approach to gun regulations.
That conclusion is fortified by a careful examination of the back and forth in McDonald between Justice Alito’s controlling opinion and Justice Breyer’s dissent.
In his McDonald dissent, Justice Breyer explained at some length that he was concerned about the practical ramifications of Heller and McDonald because judges would have great difficulty assessing gun regulations under heightened scrutiny (whether it might be called strict or intermediate or something else on that heightened scrutiny spectrum). He stated that determining the constitutionality of a gun regulation would “almost always require the weighing of the constitutional right to bear arms against the primary concern of every government — a concern for the safety and indeed the lives of its citizens.” 130 S. Ct. at 3126 (Breyer, J., dissenting) (internal quotation marks omitted). “Given the
The questions identified by Justice Breyer are of course the kinds of questions that courts ask when applying heightened scrutiny. So how did the Court respond to Justice Breyer? The Court simply rejected the premise of Justice Breyer’s criticism. Those kinds of difficult assessments would not need to be made, the Court said, because courts would not be applying that kind of test or scrutiny: “Justice Breyer is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. ‘The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.’” Id. at 3050 (controlling opinion of Alito, J.) (citation omitted) (quoting Heller, 554 U.S. at 684). The Court also
The McDonald Court’s response to Justice Breyer is quite telling for our purposes: The Court dismissed the suggestion that courts in
But Justice Breyer then asked: From where did the Court derive the exceptions the Court listed in Heller and McDonald allowing laws that ban concealed carry, possession by a felon, and the like? Justice Breyer suggested that the Court “simply invented rules that sound sensible.” Id. at 3127 (Breyer, J., dissenting). But the Court responded that, no, it was not inventing rules but rather was holding that the scope of the right was determined by text, history, and tradition — and that “longstanding regulatory measures” were therefore permissible. Id. at 3047 (controlling opinion of Alito, J.). As the Court had explained in Heller, the scope of the right was determined by text, history, and tradition, and such longstanding laws were within the historical understanding of the scope of the right. See also McDonald, 130 S. Ct. at 3050, 3056 (Scalia, J., concurring) (Court’s approach “makes the traditions of our people paramount”; “traditional restrictions” on the right are permissible).
D
Although Heller and McDonald rejected judicial interest balancing, the majority opinion here applies intermediate scrutiny. The majority opinion does so because it says that
To begin with, as explained above, the Court in my view went further in Heller and McDonald than just rejecting the concept of balancing tests. The Court emphasized the role of history and tradition; it rejected not only balancing but also examination of costs and benefits; it disclaimed the need for difficult empirical judgments; it specifically rejected Justice Breyer’s approach, which was a form of intermediate scrutiny as applied in Turner Broadcasting; and it prospectively blessed certain laws for reasons that could be (and were) explained only by history and tradition, not by analysis under a heightened scrutiny test.
It is ironic, moreover, that Justice Breyer’s dissent explicitly advocated an approach based on Turner Broadcasting; that the Heller majority flatly rejected that Turner Broadcasting-based approach; and that the majority opinion here nonetheless turns around and relies expressly and repeatedly on Turner Broadcasting. See Heller, 554 U.S. at 690, 704-05 (Breyer, J., dissenting) (citing Turner Broadcasting, 520 U.S. 180); Heller, 554 U.S. at 634-35; Maj. Op. at 22-23, 26-28 (citing Turner Broadcasting, 520 U.S. 180; Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)).
In addition, the premise of the majority opinion’s more general point — that Heller’s rejection of balancing tests does not mean it rejected strict and intermediate scrutiny — is incorrect. Strict and intermediate scrutiny are balancing tests and thus are necessarily encompassed by Heller’s more general rejection of balancing.
As in their original formulations, the successor strict and intermediate scrutiny tests applied today remain quintessential balancing inquiries that focus ultimately on whether a
Of course, as noted above, Heller and McDonald didn’t just reject interest balancing. The Court went much further by expressly rejecting Justice Breyer’s intermediate scrutiny approach, disclaiming cost-benefit analysis, and denying the need for empirical inquiry. By doing so, the Court made clear, in my view, that strict and intermediate scrutiny are inappropriate.
In short, I do not see how Heller and McDonald can be squared with application of strict or intermediate scrutiny to D.C.’s gun laws. The majority opinion here refers to the levels of scrutiny as “familiar.” Maj. Op. at 40. As one
E
It might be objected that the Supreme Court could not have intended a test cabined by text, history, and tradition (and analogues thereto when addressing modern weapons or conditions) given the prevalence of strict and intermediate scrutiny tests in the Court’s jurisprudence regarding some other constitutional rights. I disagree with that suggestion and think it is based on too narrow a view of the Court’s overall constitutional jurisprudence.
Taking a step back, we know the Supreme Court has developed an array of rules, tests, and standards specific to each right. Particularly for a lower court, it is difficult therefore to apply an overarching interpretive approach to questions of constitutional law that are necessarily guided by decades of precedent interpreting different provisions of the Constitution under different methodologies. Some individual constitutional rights are analyzed under heightened (strict or intermediate) scrutiny, some under categorical tests divined
Strict and intermediate scrutiny today are primarily used in substantive due process and equal protection cases, and for certain aspects of
For example, the Court has not typically invoked strict or intermediate scrutiny to analyze the Jury Trial Clause, the Establishment Clause, the Self-Incrimination Clause, the Confrontation Clause, the Cruel and Unusual Punishments Clause, or the Habeas Corpus Clause, to name a few. See, e.g., Kennedy v. Louisiana, 554 U.S. 407 (2008); Boumediene v. Bush, 553 U.S. 723 (2008); United States v. Booker, 543 U.S. 220 (2005); Lee v. Weisman, 505 U.S. 577 (1992); Lefkowitz v. Turley, 414 U.S. 70 (1973). In a recent landmark case concerning the Confrontation Clause, the Court stated in language quite similar to Heller’s that by “replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable.” Crawford v. Washington, 541 U.S. 36, 67-68 (2004).
Even in the
In short, it would hardly have been unusual or unthinkable for the Supreme Court to set forth a
F
To sum up so far: Because the Supreme Court in Heller did not adopt a strict or intermediate scrutiny test and rejected judicial interest balancing, I must disagree with the majority opinion’s decision in this case to adopt the intermediate-scrutiny balancing test. In my view, it is a severe stretch to read Heller, as the majority opinion does, as consistent with
One final aside about the appropriate test to apply: Even if it were appropriate to apply one of the levels of scrutiny after Heller, surely it would be strict scrutiny rather than the intermediate scrutiny test adopted by the majority opinion here. Heller ruled that the right to possess guns is a core enumerated constitutional right and rejected Justice Breyer’s suggested Turner Broadcasting intermediate scrutiny approach. And McDonald later held that “the right to keep and bear arms” is “among those fundamental rights necessary to our system of ordered liberty.” 130 S. Ct. at 3042.
For those fundamental substantive constitutional rights that the Court has subjected to a balancing test and analyzed under one of the levels of scrutiny — for example, the
Strict scrutiny requires the government to show that a law is narrowly tailored to serve a compelling state interest. See Citizens United, 130 S. Ct. at 898 (strict scrutiny “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest”) (internal quotation marks omitted). This test strongly favors the individual right in question. See Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011) (strict scrutiny “is a demanding standard”); Vieth v. Jubelirer, 541 U.S. 267, 294 (2004) (plurality opinion) (strict scrutiny imposes “a strong presumption of invalidity” with a “thumb on the scales” in favor of the individual right); Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (under strict scrutiny, “a heavy burden of justification is on the State”).
It is especially inappropriate for the majority opinion here to apply intermediate scrutiny rather than strict scrutiny to D.C.’s ban on semi-automatic rifles. No court of appeals decision since Heller has applied intermediate scrutiny to a ban on a class of arms that have not traditionally been banned and are in common use. A ban on a class of arms is not an “incidental” regulation. It is equivalent to a ban on a category of speech. Such restrictions on core enumerated constitutional protections are not subjected to mere intermediate scrutiny review. The majority opinion here is in uncharted territory in suggesting that intermediate scrutiny
G
In sum, our task as a lower court here is narrow and constrained by precedent. We need not squint to divine some hidden meaning from Heller about what tests to apply. Heller was up-front about the role of text, history, and tradition in
II
Whether we apply the Heller history- and tradition-based approach or strict scrutiny or even intermediate scrutiny, D.C.’s ban on semi-automatic rifles fails to pass constitutional muster. D.C.’s registration requirement is likewise unconstitutional.
A
The first issue concerns D.C.’s ban on most semi-automatic rifles.10 A semi-automatic gun “fires only one shot
The vast majority of handguns today are semi-automatic.12 In Heller, the Supreme Court ruled that D.C.’s law banning handguns, including semi-automatic handguns, was unconstitutional. District of Columbia v. Heller, 554 U.S. 570, 628-29 (2008). This case concerns semi-automatic rifles.13
As with handguns, a significant percentage of rifles are semi-automatic. D.C. asks this Court to find that the
There is no basis in Heller for drawing a constitutional distinction between semi-automatic handguns and semi-automatic rifles.
As an initial matter, considering just the public safety rationale invoked by D.C., semi-automatic handguns are more dangerous as a class than semi-automatic rifles because handguns can be concealed. As was noted by the dissent in Heller, handguns “are the overwhelmingly favorite weapon of armed criminals.” 554 U.S. at 682 (Breyer, J., dissenting); see also FBI, CRIME IN THE UNITED STATES, 2009 tbl.20 (2010). So it would seem a bit backwards — at least from a public safety perspective — to interpret the
The first commercially available semi-automatic rifles, the Winchester Models 1903 and 1905 and the Remington Model 8, entered the market between 1903 and 1906. See JOHN HENWOOD, THE 8 AND THE 81: A HISTORY OF REMINGTON’S PIONEER AUTOLOADING RIFLES 5 (1993); JOHN HENWOOD, THE FORGOTTEN WINCHESTERS: A HISTORY OF THE MODELS 1905, 1907, AND 1910 SELF-LOADING RIFLES 2-6 (1995). (The first semi-automatic shotgun, designed by John Browning and manufactured by Remington, hit the market in 1905 and was a runaway commercial success. See HENWOOD, 8 AND THE 81, at 4.) Other arms manufacturers, including Standard Arms and Browning Arms, quickly brought their own semi-automatic rifles to market. See id. at 64-69. Five-shot magazines were standard, but as early as 1907, Winchester was offering the general public ten-shot magazines for use with its .351 caliber semi-automatic rifles. See HENWOOD, THE FORGOTTEN WINCHESTERS 22-23. Many of the early semi-automatic rifles were available with pistol grips. See id. at 117-24. These semi-automatic rifles were designed and marketed primarily for use as hunting rifles, with a small ancillary market among law enforcement officers. See HENWOOD, 8 AND THE 81, at 115-21.
Semi-automatic rifles remain in common use today, as even the majority opinion here acknowledges. See Maj. Op. at 30 (“We think it clear enough in the record that semi-automatic rifles . . . are indeed in ‘common use,’ as the plaintiffs contend.”). According to one source, about 40 percent of rifles sold in 2010 were semi-automatic. See NICHOLAS J. JOHNSON ET AL., FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY ch. 1 (forthcoming 2012). The AR-15 is the most popular semi-automatic rifle; since 1986, about two million semi-automatic AR-15 rifles have been manufactured. J.A. 84 (Declaration of Firearms Researcher Mark Overstreet). In 2007, the AR-15 alone accounted for 5.5 percent of firearms and 14.4 percent of rifles produced in the United States for the domestic market. Id. A brief perusal of the website of a popular American gun seller underscores the point that semi-
Although a few states and municipalities ban some categories of semi-automatic rifles, most of the country does not, and even the bans that exist are significantly narrower than D.C.’s. What the Supreme Court said in Heller as to D.C.’s handgun ban thus applies just as well to D.C.’s new semi-automatic rifle ban: “Few laws in the history of our Nation have come close to the severe restriction of the District’s” law. 554 U.S. at 629.
What is more, in its 1994 decision in Staples, the Supreme Court already stated that semi-automatic weapons “traditionally have been widely accepted as lawful possessions.” 511 U.S. at 612. Indeed, the precise weapon at issue in Staples was the AR-15. The AR-15 is the quintessential semi-automatic rifle that D.C. seeks to ban here. Yet as the Supreme Court noted in Staples, the AR-15 is in common use by law-abiding citizens and has traditionally been lawful to possess. By contrast, as the Court stated in Staples and again in Heller, short-barreled shotguns and automatic “M-16 rifles and the like” are not in common use and have been permissibly banned by Congress. Heller, 554 U.S. at 625, 627; see also Staples, 511 U.S. at 611-12 (“certain categories of guns – no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to regulation – . . . have the same quasi-suspect character we attributed to owning hand grenades,” but “guns falling outside those categories traditionally have been widely accepted as lawful
The Supreme Court’s statement in Staples that semi-automatic rifles are traditionally and widely accepted as lawful possessions further demonstrates that such guns are protected under the Heller history- and tradition-based test. The government may still ban automatic firearms (that is, machine guns), which traditionally have been banned. But the government may not generally ban semi-automatic guns, whether semi-automatic rifles, shotguns, or handguns.
Even if it were appropriate to apply some kind of balancing test or level of scrutiny to D.C.’s ban on semi-automatic rifles, the proper test would be strict scrutiny, as explained above. See supra Part I.F. That is particularly true where, as here, a court is analyzing a ban on a class of arms within the scope of Second Amendment protection. If we are to apply strict scrutiny, we must do so in a manner consistent with Heller’s holding that D.C.’s handgun ban was unconstitutional. But D.C. cannot show a compelling interest in banning semi-automatic rifles because the necessary implication of the decision in Heller is that D.C. could not show a sufficiently compelling interest to justify its banning semi-automatic handguns.
For its part, the majority opinion analyzes D.C.’s ban on semi-automatic rifles under an intermediate scrutiny balancing test. Even if the majority opinion were right that intermediate scrutiny is the proper test, the majority opinion’s
In attempting to distinguish away Heller’s protection of semi-automatic handguns, the majority opinion suggests that semi-automatic rifles are almost as dangerous as automatic rifles (that is, machine guns) because semi-automatic rifles fire “almost as rapidly.” Maj. Op. at 34. Putting aside that the majority opinion’s data indicate that semi-automatics actually fire two-and-a-half times slower than automatics, id., the problem with the comparison is that semi-automatic rifles fire at the same general rate as semi-automatic handguns. And semi-automatic handguns are constitutionally protected under the Supreme Court’s decision in Heller. So the majority opinion cannot legitimately distinguish Heller on that basis. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1484 (2009) (“The laws generally define assault weapons to be a set of semiautomatic weapons (fully automatic weapons have long been heavily regulated, and lawfully owned fully automatics are very rare and very expensive) that are little different from semiautomatic pistols and rifles that are commonly owned by tens of millions of law-abiding citizens. ‘Assault weapons’ are no more ‘high power’ than many other pistols and rifles that are not covered by the bans.”) (footnote omitted).16
The majority opinion next contends that semi-automatic handguns are good enough to meet people’s needs for self-defense and that they shouldn’t need semi-automatic rifles. But that’s a bit like saying books can be banned because people can always read newspapers. That is not a persuasive or legitimate way to analyze a law that directly infringes an enumerated constitutional right. Indeed, Heller itself specifically rejected this mode of reasoning: “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” 554 U.S. at 629; see also Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007) (“The District contends that since it only bans one type of firearm, ‘residents still have access to hundreds more,’ and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted.”), aff’d sub nom. Heller, 554 U.S. 570. Furthermore, the majority opinion’s assertion does not sufficiently account for the fact that rifles, but typically not handguns, are used for hunting. Cf. Heller, 554 U.S. at 599 (most founding-era Americans “undoubtedly” thought right to own firearms “even more important for self-defense and hunting” than for militia service).
In support of its law, D.C. suggests that semi-automatic rifles are “offensive” and not just “defensive.” But that is plainly true of semi-automatic handguns as well (after all, handguns are far and away the guns most often used in violent crimes), and yet the Supreme Court held semi-automatic handguns to be constitutionally protected. Moreover, it’s hard
D.C. repeatedly refers to the guns at issue in this case as “assault weapons.” But if we are constrained to use D.C.’s rhetoric, we would have to say that handguns are the quintessential “assault weapons” in today’s society; they are used far more often than any other kind of gun in violent crimes. See BUREAU OF JUSTICE STATISTICS, PUB. NO. 194820, WEAPON USE AND VIOLENT CRIME 3 (2003) (87% of violent crimes committed with firearms between 1993 and 2001 were committed with handguns). So using the rhetorical term “assault weapon” to refer to semi-automatic rifles does not meaningfully distinguish semi-automatic rifles from semi-automatic handguns. Nor does the rhetorical term “assault
Under intermediate scrutiny, yet another problem with D.C.’s law is its tailoring. The law is not sufficiently tailored even with respect to the category of semi-automatic rifles. It bans certain semi-automatic rifles but not others – with no particular explanation or rationale for why some made the list and some did not. The list appears to be haphazard. It does not reflect the kind of tailoring that is necessary to justify infringement of a fundamental right, even under the more relaxed intermediate scrutiny test.
In short, the majority opinion cannot persuasively explain why semi-automatic handguns are constitutionally protected but semi-automatic rifles are not. In Heller, D.C. argued that it could ban handguns because individuals could still own rifles. That argument failed. Here, D.C. contends that it can ban rifles because individuals can still own handguns. D.C.’s at-least-you-can-still-possess-other-kinds-of-guns argument is no more persuasive this time around. Under the Heller history- and tradition-based test, or the strict scrutiny test, or even the majority opinion’s own intermediate scrutiny test, the D.C. ban on semi-automatic rifles is unconstitutional.
B
The second main issue on appeal concerns D.C.’s gun registration regime. D.C. requires registration of all guns lawfully possessed in D.C. The Supreme Court in Heller expressly allowed “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of
The fundamental problem with D.C.’s gun registration law is that registration of lawfully possessed guns is not “longstanding.” Registration of all guns lawfully possessed by citizens in the relevant jurisdiction has not been traditionally required in the United States and, indeed, remains highly unusual today.
In considering D.C.’s registration requirement, it’s initially important to distinguish registration laws from licensing laws. Licensing requirements mandate that gun owners meet certain standards or pass certain tests before
Likewise, it’s also important at the outset to distinguish registration requirements imposed on gun owners from record-keeping requirements imposed on gun sellers. Some record-keeping requirements on gun sellers are traditional and common. Thus, the government may constitutionally impose certain record-keeping requirements on the sellers of guns. See Heller, 554 U.S. at 627 (listing “conditions and qualifications on the commercial sale of arms” as being within category of traditional gun regulations).
The issue here, however, is registration of all guns owned by people in the District of Columbia. As D.C. acknowledges, there is not, and never has been, a “comprehensive federal system of firearm registration.” COUNCIL COMM. ON PUB. SAFETY & THE JUDICIARY, COMM. REP. ON B. 17-843, at 3 (D.C. 2008). Similarly, the vast
Even if modern laws alone could satisfy Heller’s history- and tradition-based test, there presumably would have to be a strong showing that such laws are common in the states. Cf. Kennedy v. Louisiana, 554 U.S. 407, 423-26 (2008) (only six states permitting death penalty for child rapists shows national consensus against it). Such a showing cannot be made with respect to registration requirements. Today, most states require no registration for any firearms; only seven states require registration for some firearms; and only Hawaii requires registration for all firearms. And even Hawaii does not impose all of the onerous requirements associated with registration that D.C. does.18 Put simply, D.C.’s registration
Because the vast majority of states have not traditionally required and even now do not require registration of lawfully possessed guns, D.C.’s registration law – which is the strictest in the Nation and mandates registration of all guns – does not satisfy the history- and tradition-based test set forth in Heller and later McDonald.
D.C. contends that registration is a longstanding requirement in American law because early militia laws required militiamen to submit arms for inspection. See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 LAW & HIST. REV. 139, 161 (2007). But D.C.’s attempt to analogize its registration law to early militia laws is seriously flawed for two reasons. First, those early militia laws applied only to militiamen, not to all citizens. In general, men over age 45 and women did not have to comply with such laws. See Heller, 554 U.S. at 580 (“the militia in colonial America
Those militia requirements were a far cry from a registration requirement for all firearms. Those laws therefore provide no meaningful support for D.C.’s broad and unprecedented registration law. Nor has D.C. been able to find any other historical antecedents for its registration requirement. Yet again, what the Supreme Court said in Heller with respect to D.C.’s handgun ban applies as well to D.C.’s registration requirement: “Few laws in the history of our Nation have come close to the severe restriction of the District’s” law. 554 U.S. at 629.
The Supreme Court’s 1939 decision in Miller further suggests that registration of all lawfully possessed guns is not permissible under the Second Amendment. See United States v. Miller, 307 U.S. 174 (1939). Miller involved a defendant’s
Perhaps recognizing the dearth of historical or precedential support for its registration law, D.C. says that licensing laws are “conceptually similar” to registration requirements. D.C. Br. at 19. D.C. also advances a similar argument when citing the record-keeping laws for sellers as support for its registration requirement. But to rely on those laws to support registration requirements on gun owners for all of their guns is to conduct the Heller analysis at an inappropriately high level of generality – akin to saying that because the government traditionally could prohibit defamation, it can also prohibit speech criticizing government officials.
D.C.’s law requiring registration of all lawfully possessed guns in D.C. is not part of the tradition of gun regulation in
Even if it were proper to apply strict or intermediate scrutiny to D.C.’s registration law (as the majority opinion does), the registration requirement still would run into serious constitutional problems. If we were applying one of those balancing tests, however, I would remand: The current record is insufficient to render a final evaluation of the registration law under those balancing tests.
To begin with, it would be hard to persuasively say that the government has an interest sufficiently weighty to justify a regulation that infringes constitutionally guaranteed Second Amendment rights if the Federal Government and the states have not traditionally imposed – and even now do not commonly impose – such a regulation. Cf. Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2736 (2011) (considering First Amendment challenge to ban on sale of violent video games: “California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none.”) (emphasis added); United States v. Stevens, 130 S. Ct. 1577, 1585 (2010) (considering First Amendment challenge to ban on depictions of animal cruelty: “we are unaware of any . . . tradition excluding depictions of animal cruelty from ‘the freedom of speech’ codified in the First Amendment”) (emphasis omitted); Romer v. Evans, 517 U.S. 620, 633 (1996) (“It is not within our constitutional tradition to enact laws of this sort.”).
In any event, the proper test to apply is Heller’s history- and tradition-based test. Because most of the Nation has never required – and even now does not require – registration of all lawfully possessed firearms, D.C.’s strict registration law is not “longstanding” in the United States. After Heller, some licensing requirements remain permissible, and some record-keeping requirements on gun sellers remain permissible. But D.C.’s registration law violates the Second Amendment as construed by the Supreme Court.
* * *
This is a case where emotions run high on both sides of the policy issue because of the vital public safety interests at stake. As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case. So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain
D.C. believes that its law will help it fight violent crime. Few government responsibilities are more significant. That said, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter, or detect violent crime. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); City of Indianapolis v. Edmond, 531 U.S. 32 (2000); Crawford v. Washington, 541 U.S. 36 (2004); Kennedy v. Louisiana, 554 U.S. 407 (2008); District of Columbia v. Heller, 554 U.S. 570 (2008). In the words of the Supreme Court, the courts must enforce those constitutional rights even when they have “controversial public safety implications.” McDonald v. City of Chicago, 130 S. Ct. 3020, 3045 (2010) (controlling opinion of Alito, J.).
As I read the relevant Supreme Court precedents, the D.C. ban on semi-automatic rifles and the D.C. gun registration requirement are unconstitutional and may not be enforced. We should reverse the judgment of the District
I respectfully dissent.
Notes
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
554 U.S. at 626-27 (citations and footnote omitted). The Court in McDonald reiterated:As evidence that the Fourteenth Amendment has not historically been understood to restrict the authority of the States to regulate firearms, municipal respondents and supporting amici cite a variety of state and local firearms laws that courts have upheld. But what is most striking about their research is the paucity of precedent sustaining bans comparable to those at issue here and in Heller. . . . We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
130 S. Ct. at 3047 (controlling opinion of Alito, J.) (quoting Heller, 554 U.S. at 626-27).Oddly, the majority opinion says that a registration requirement is permissible for handguns but might be impermissible for rifles or other long guns. See id. That approach gives potentially greater constitutional protection to long guns than to handguns even though Heller held that handguns warrant the highest constitutional protection.