Heller v. District of Columbia

HELLER, Anthony Dick Appellants al.,

et COLUMBIA, OF

DISTRICT al., Appellees.

et 14-7071.

No. Appeals, Court States

United Circuit. of Columbia 20, 2015. April

Argued 18, 2015. Sept.

Decided Connecticut, Russell A. of

al for the State the time the Suzuki, Attorney General Attorney filed, Gen- was Office brief Hawaii, Lisa of for the State eral cause argued the P. Halbrook Stephen General, Office of the Attorney Madigan, the briefs was on himWith appellants. for of Illinois for State Attorney General Peterson. Dan M. States of as amici curiae on the brief were Pisciotti, Jef- Michel, Anthony C.D. appellees. of support et al. Maryland, for amici brief on the were frey Malsch Jr., L. Smith, Dies- Jonathan A. Walter Pistols, Foundation, Pink curiae CRPA court, Karla enhaus, by the appointed Sisters, and Women Amendment Second amici curi- on the brief Aghedo were J. appel- of support Control Against Gun Law & Jus- Appleseed Center ae DC lants. tice, appellees. of support et al. in Titus, Olson, W. Herbert J. William Lipton and Daniel R. Rubin Howard Miles John S. Morgan, L. Jeremiah curiae The the brief as amici were curiae Gun for amici brief on the were Association, Police City Chiefs Major America, Inc., support al. in et Owners Mayors, Conference States The United appellants. Lawyers Municipal As- International James W. Sweeney and Parker John support appellees. of in sociation brief for amicus on the III were Porter Association, in Valentini, Rifle Inc. Wolfson, National R.Q. curiae Francesco Paul appellants. the support Lowy of brief were Jonathan E. and to Prevent Brady curiae Center for amici AliKhan, Gen- Deputy Solicitor L. Loren appellees. of Violence, support inal. et Gun the Attorney General for eral, of the Office Columbia, for argued the cause District of MILLETT, and Before: HENDERSON were the brief her on With appellees. GINSBURG, Senior Judges, and Circuit Gen- Adams, Attorney A. Interim Eugene Judge. Circuit filed, Todd S. the brief was at the time eral General, Holly John- M. Kim, Solicitor by Senior Court filed for the Opinion son, Attorney General. Assistant Judge GINSBURG. Circuit Gansler, Attorney General F. Douglas concurring part filed, Opinion of the Office brief was the time the Judge by filed Circuit dissenting part Mary- of for State Attorney the General Auerbach, Assistant HENDERSON. land, N. and Joshua Miller, Attorney General, Attorney Tom GINSBURG, Judge: Senior Circuit for Attorney General, of the General Office the suit is constitutionali issue this Iowa, Coakley, Attor- At Martha the State of by the filed, laws enacted ty gun of certain the brief was at the time ney General court The district of Columbia. the District General for Attorney the Office of matter of law as a Massachusetts, determined T. Eric of Commonwealth gun violence “to combat General, efforts of District’s Schneiderman, Office Attorney of by means its safety” promote public New and the State Attorney General of for “constitutionally were General, laws registration Harris, Attorney York, Kamala Colum Heller permissible.” Attorney General of the Office of (D.D.C.2014). 35, 38 bia, F.Supp.3d California, Attor- George Jepsen, State court, Anthony Dick Heller this Before General, Attorney Gener- ney Office (cid:127) co-appellants and his challenge July both the 2008 Heller filed suit challenging of, district court’s admission and its reb- District’s new scheme as upon, anee expert reports prof certain inconsistent with the Second Amendment to the by fered the District and the final Constitution of the order United States. The district denying granted court Heller’s granting summary judg- the Dis ment to the District and summary trict’s motion for Heller judgment. appealed. On appeal, we upheld the constitu- We hold the district court’s admission of tionality District’s “basic registra- the challenged expert reports was not an tion requirement,” insofar require- as that abuse of discretion. affirm in part We pertained ment to handguns. II, Heller reverse in part the district judg- court’s 670 F.3d at 1254-55. We upheld also ment in favor of District. portion of FRA prohibiting registra- tion, and possession, therefore of assault Background I. weapons magazines with a capacity in (Heller In District Columbia v. Heller excess of 10 1247-48, rounds. Id. at I) Supreme Court held the District of We reserved judgment to the consti- “prohibition handguns Columbia’s held tutionality of the District’s registra- basic and used for in the self-defense home” was tion for long guns, the condi- unconstitutional. 554 U.S. 128 tions which registration under certificate (2008). S.Ct. 171 L.Ed.2d 637 Im- issued, would be and the duration for mediately thereafter, the City D.C. Council which such certificate would be valid. revised the District’s laws enacting Id. at 1258-60. We held that both Registration Firearms Amendment basic requirement for long 2008(FRA). Act of D.C. Law 17-372. guns, minimis, if de and the conditions for registration subject were to intermedi- The FRA created a “new scheme for ate scrutiny, and that the record as it then regulating firearms.” Heller v. District of stood was not sufficient for us to evaluate Columbia, (D.C.Cir. 670 F.3d whether those laws were narrowly tailored 2011) (Heller II). With excep limited to serve important an governmental inter- tions, the FRA required registration the of est. Id. 1258. at We therefore remanded all firearms in the District. D.C.Code the case to the district court for further § 7-2502.01. The imposed law also various evidentiary proceedings. Id. at 1260. upon conditions registration the of fire a Subsequently, the D.C. arm Council enacted and limited persons eligible the the Firearms Amendment Act of register a by firearm excluding, for exam 19-170, D.C. Law repealed which certain ple, individuals who within prior the five of the conditions for registration, such as years had been convicted of drug certain requirement the that a pistol be submitted or violent crimes had a or severe mental for ballistic identification part as of the health problem, and individuals the under registration process, and reduced the bur- of age § Id. 7-2502.03-.07. In addi upon den registrants imposed by other tion, required the FRA the owner to provisions. Heller then filed an amended firearm(s) the registration renew of his complaint to take account legisla- of these every years, three § 7-2502.07a, id. tive changes. prohibited registration posses hence —and firearms, sion—of certain such as short- During discovery, Heller and the Dis- barreled rifles and assault weapons. Id. trict of, offered opinion the testimony re- § 7-2502.02. spectively, one and four expert witnesses. Vince, Jr., agents former both Columbia, Joseph v. District

Heller of Tobacco, Alcohol, Fire- of III). the Bureau (Heller Largely of F.Supp.3d (ATF), but Explosives arms and testimony, the dis- their basis of the upon Webster, of the Director Johns for of Daniel judgment summary entered trict court Policy. for Gun Heller Center Hopkins the District. the “fall of reports short expert argued the dis- argues Heller appeal, this On under requirements disclosure Fed. opinion admitting the erred trict court 26(a) tes- proposed and that their R.CrvP. four District’s three testimony of admitted to be too unreliable timony [was] addition, ar- Heller witnesses. expert The district 702.” under Fed.R.Evid. upholding court erred gues the district Heller’s motion. denied court (1) registration the basic constitutional: as long guns, pertains as it ar renews both Heller appeal, On (2) 7-2502.01(a); require- § the district court’s review guments. We register in person to appear one ment that of testimony for abuse expert of admission photo- fingerprinted and and be a firearm discretion, is chal that admission whether (3) 7-2502.04; require- § id. graphed, un or of evidence under the rules lenged him bring registrant with ment that United States procedure. of der the rules re- registered, which firearm (D.C.Cir.2008). 1361, 1367 Day, 524 F.3d Depart- Metropolitan Police quirement court did not that the district conclude We (MPD) may not may or invoke ment admitting the chal its discretion abuse 2502.04(c); individual, § id. particular a 7— testimony. lenged after (4) expiration (5) 7-2502.07a; the im- § years, id. three Procedure Rule of Civil 1. Federal id. registration, fees of certain position 7-2502.05(b); (6) requirements Civil Procedure Rule of Federal safety complete firearms registrant 26(a)(2)(B) expert witness provides that evidence provide training course containing, report must submit written reg- training and that form another complete statement things, other “a among his to demonstrate a test pass istrant express will opinions the witness of all laws, District’s firearms knowledge of the them,” as well as reasons for the basis and 7-2502.03(a)(10); 7-2502.03(a)(13), §§ id. by the wit facts or data considered “the (7) prohibition who fails party A forming them.” ness any 30- per person in pistol than one more 26(a)(2)(B) generally comply with Rule to 7-2502.03(e). day period, id. supply “to evi may not use that witness ... unless the failure on a motion dence Analysis II. substantially justified or is harmless.” was ad- district court’s first address We 37(c)(1). Fed.R.Civ.P. reports challenged expert of the mission turn testimony. We then and related of the rule purpose The challenges. constitutional Heller’s opposing par to the surprise “unfair avoid ex Estate Muldrow ty.” Muldrow rel. testimony reports and expert A. The 160, Re-Direct, Inc., F.3d v. (citation (D.C.Cir.2007) quota and internal four three strike moved to Heller omitted). Admitting a report tion dur- marks by the District expert reports offered “un not cause Lanier, that does with an omission viz., Cathy those of discovery, ing harmless. Id. surprise” we deem fair MPD, Jones and of Mark the Chief noted, (c) district court each of As the testimony is the product of reli- challenged expert reports contained an able methods; principles and explicit statement as to the for that basis (d) expert has reliably applied the opinion, wit, witness’s that his or her principles and methods to the facts report was “on my experience, based my of the case. review of books, numerous studies and Fed.R.Evid. 702. District of Columbia’s firearms laws and In Daubert Merrell Dow Phar regulations, discovery materials from maceuticals, the Supreme Court held this case Rule made available to me.” addi 702 requires courts to ensure that report expert tion each recounts in detail testimony is only relevant, expert’s “not relevant but reli experience. The district 579, 589, able.” 509 U.S. court stated: 113 S.Ct. (1993); 125 L.Ed.2d 469 see also Kumho Plaintiffs have an had opportunity to Carmichael, Tire Co. v. 526 U.S. depose experts these and examine more (1999) 143 L.Ed.2d 238 fully the bases for their opinions.... (noting that “Daubert’s general principles Where Defendants have provided ade- apply” just to scientific quate testimony but opinions notice of the they expect to all expert “the matters described in experts these to offer and Plaintiffs have 702”). Therefore, Rule courts are obligat had and continue to have opportunities ed to “determine whether [expert] conclusions, these testimo challenge goals ny has 26(a) a reliable basis in satisfied, of Rule the knowledge and there is experience of [the no striking basis for the reports relevant] disci Tire, pline.” Kumho preventing these experts from at testifying. (second S.Ct. 1167 alteration in original) Heller v. Columbia, (citation and internal quotation marks 133, 139(D.D.C.2013). F.Supp.2d omitted). Nonetheless, the Supreme court district did not abuse its dis- Court has said “the trial judge must have cretion so holding. The experts’ reports considerable leeway in deciding partic in a adequately established the bases for the ular case how go about determining opinions they expressed in reports particular whether expert testimony is re in their declarations. Heller had op- 152, 119 liable.” Id. S.Ct. 1167. portunity to probe the bases the wit- opinions nesses’ when deposed he them. In this case the district court rea soned: 2. Federal Rule of Evidence 702 appears [I]t opinion here that the evi- Rule 702 provides: dence is connected to the existing A witness who is qualified expert as an facts—the requirements and by knowledge, skill, experience, training, the state of gun violence in the Dis- may testify education in the form of trict—by a methodology precisely con- opinion or otherwise if: templated by Daubert and Rule 702: (a) scientific, the expert’s technical, or each expert’s professional judgment ob- other specialized knowledge will help through tained long experience in the the trier of fact to understand the field. Each reports the of specifically evidence or to determine a fact in identifies this experience being the issue; basis for the opinions proffered, and (b) the testimony is based on sufficient provides each justification—in some the data;

facts or form of gained information from the ex- 272 their con- support of in they cited sources those experience relevant pert’s —for studies, stories, above-noted clusions—the opinions. court the district hold and research —we Columbia, 952

Heller v. of admitting discretion not abuse its did at 142. F.Supp.2d the sub- reports and expert challenged the suggested, rightly district As the court Rather, as expert declarations. sequent has decades experts challenged each noted, “concerns Heller’s court the district Advisory Still, the experience. relevant of these ex- [to which] the conclusions about that provide 702 Rule notes to Committee to the go led them experience perts’ solely primari- or “relying who is a witness its admissi- testimony,” not the of weight that explain how ... must experience ly on Columbia, 952 bility. Heller District of reached, conclusion to leads the experience at F.Supp.2d basis is a sufficient experience why that experience that how opinion, for the challenges The constitutional B. In this case facts.” to the reliably applied sum the district court’s We review the connection explanation experts’ the novo, de judgment determination mary conclu- and their experience their between light most evidence the considering the Like- fatally sparse. sometimes sions was ie., party, non-moving to the favorable meaningfully failed wise, court the district Mae, v. Fannie Ayissi-Etoh Heller. ex- for the factual bases the to evaluate (D.C.Cir.2013). 572, 576 712 F.3d were they that noting only perts’ opinions, II, two-step a adopted we Heller In the justification “some by supported —in the determining constitution- to approach ex- from the gained information form of laws: ality of the District’s experience.” relevant pert’s provi- particular a ask first whether “We however, noted, this court has As by protected right a impinges upon sion testimony does [expert] “admission does, Amendment; then if it the Second mere of discretion an abuse not constitute provi- whether on to determine gowe expert’s for an the factual bases ly because appropriate under the passes sion muster Helicopter Joy v. Bell opinion weak.” scrutiny.” 670 F.3d of constitutional level (D.C.Cir. Textron, Inc., F.2d was level that determined 1252. We 1993). in which case is this a Nor scrutiny. Id. at 1252-53. intermediate “subjective consisted reports experts’ challenged provision For which speculation,” unsupported belief or scrutiny, the District intermediate survive Id. at preclude. of evidence the rules first, show, “promotes has marks (citation quotation and internal governmental interest substantial omitted). effectively absent less be achieved would gener- or her invoking his In addition second, that “the regulation,” claimed expert “experience,” each alized substantially broad not chosen are means stories, aca- news specific upon have relied interest.” to achieve that necessary er than form- studies, research in or other demic Against v. Rock (quoting Ward Id. at Moreover, each of opinion. ing 782-83, Racism, state position was experts three (1989)). To meet L.Ed.2d 661 comported cited materials whether must the District requirement, first experience. personal his her with prevent to be the harms demonstrate real, merely “are regulation sub- ed challenged experts’ light inwill regulation and that conjectural, experience relevant stantial 273 fact alleviate these harms in a question direct and whether requiring the registra- way.” material Turner Sys., Broad. Inc. long tion of guns impinges upon the Sec- FCC, 622, 662-64, U.S. S.Ct. ond Amendment. 670 *; F.3d at 1255 n.* (1994) (Turner I). 129 L.Ed.2d 497 7-2502.01(a). see also D.C.Code We not, however, We do review de novo the now hold it does not. District’s evidence of harm pre the to be Requiring registration the of handguns vented and likely efficacy the regu the legally is different from requiring reg- the lation in preventing that harm. See id. at long guns istration of only in that “basic 666, 114 Rather, S.Ct. 2445. it is our registration of handguns deeply is enough remit to only determine whether the Dis rooted in our history to support the pre- trict “has drawn reasonable inferences sumption constitutional,” is [it] Heller based on substantial evidence.” Id. If it II, 1253; 670 F.3d at registration the re- so, has done if the means chosen are quirement for long guns lacks that histori- overbroad, not then “summary judgment pedigree. cal Id. at 1255. is appropriate regardless of whether Even absent the presumption that at- the evidence is conflict.” Turner however, tends the pedigree, the reg- basic FCC, Sys., Broad. Inc. v. istration requirement applied as to hand 195-96, 211, 137 L.Ed.2d guns falls into the category of (1997) (Turner require- II); II, see also Heller ments that are “self-evidently minimis, de 670 F.3d at 1263 (upholding the District’s they are similar to other common reg- ban on assault weapons on the basis that schemes, istration or licensing such “the as evidence demonstrates a ban on as those for voting car, or for driving a weapons sault likely is to promote the cannot reasonably be control”). considered Government’s onerous.” interest in crime Id. at 1254-55. On previous Heller’s ap- Impingement 1. peal, we were unable to determine whether requiring registration long guns is In Heller II we held the basic similarly a de minimis burden because registration requirement applied as record was “devoid of information concern- handguns impinge did not upon the Second ing application registration require- Amendment and was therefore constitu long ments to (“[T]he guns.” Id. at tional. 1255 n.* *. 670 F.3d at 1254-55 basic Heller, We therefore requirement allowed register during handgun long discovery proceedings remand, standing Therefore, the op- American law.... portunity to presume we introduce might evidence that registra District’s basic requirement registration tion differentiate the requirement including the submission for long guns of certain registration information does from other impinge re- upon quirements right protected undoubtedly entail Second a de Further, Amendment. upon we no minimis burden right. find basis in constitutional either the historical record or As the district subsequently the record of court deter- (ci this case mined, however, to rebut that presumption.”) Heller offered no evi- omitted); I, tations see also Heller dence distinguishing basic U.S. 626-27 & n. requirement S.Ct. 2783 applied to long guns. (“longstanding” regulations III, firearm Indeed, Heller 45 F.Supp.3d at 51. he lawful”). “presumptively left open We argue did not even point.1 court, reply In his brief in this impinges Heller ar upon the Second gued for the first time that right Amendment to bear arms because by Dis- requirements enacted regis istration the basic the burden Because (1) en- police officers protecting trict: long to applied as requirement tration advance, determine, in to abling them minimis, implicate not it does guns de at a location II, present may be guns whether Heller right. amendment the second (2) in aiding called and they are to which v. Town 1255; Justice see also 670 F.3d II, at 1258. 670 F.3d (7th Heller crime control. 768, 773-75 Cir. Cicero, F.3d remand, recharacterized District On “requiring 2009) ordinance local (holding in interest as a broader interest consis the second firearms” is all registration III, 45 safety.” Heller “promoting public ruling in Court’s Supreme tent with the District appeal, 49. On F.Supp.3d at I). constitutional. therefore It is Heller in interest its particularly more identifies require- registration The additional reiterates officers” and “protecting police to be however, be said de ments, cannot safety” public “promoting in interest its II, the addi- held In Heller we minimis. generally. stood, they then as requirements, tional these are dispute that not Heller does right Amendment the Second “affect[ed] Rath- governmental interests. substantial minimis”—that not they de [we]re because fit of the er, the closeness challenges he more diffi- considerably is, they “ma[d]e and the interests the asserted between lawfully acquire to person for a cult We requirements. registration various purpose of self- for the a firearm keep has not that the District with Heller agree at 1255. The home.” Id. defense in which from evidence offered substantial of those re- of some repeal subsequent conclusion a reasonable one could draw of others the amendment quirements pro- will challenged requirements that the imposed the burden reduced somewhat officers; Dis- we think the but police tect of their exercise residents’ upon District evidence to substantial pointed trict has rights. The Second Amendment not requirements however, that some of the argue, to far as go not so does —but safety. public promote others—will requirements de amended are there- requirements minimis. Those protection a. Police scrutiny. subject intermediate

fore registration re argues the Heller scrutiny Intermediate the District’s advance not quirements do because police in protecting interest substantial identified two previously We regis- very rarely check reg- MPD officers by the interests served governmental event, forfeit”). any it is too to be ered "go prison and receive life person can II we other in Heller instanced little because firearms for failure possession of time ban impose a de min licensing we think reregister.” D.C.Code schemes See register or notwithstanding failure to 7-2507.06, 7-2502.03, (provid imis burden 7-2502.08 §§ may result in comply those schemes with re ing generally violation fines, penalties; it is with basic so imprisonment, criminal may result quirements long guns. See for register weapons in ineligibility II, (describing little, assertion, however, 670 F.3d at 1254-55 future). Heller is too This ... driv licensing [that] "such as we schemes because do not too late too It comes late. minimis”); "self-evidently de ing ap a car” argument that first ordinarily notice 50-1403.01(e) (providing that an Gunpowder River reply pears brief. -F.3d-, "operating guilty a motor 14-1062, FERC, individual found keeper v. No. person’s (D.C.Cir. -, District” while vehicle in the July WL at *5 may suspended” or is "revoked 21, 2015) clearly license ("[AJrguments raised in year). up one imprisoned for generally fined consid party's opening brief are call, tration records responding to a respect with to the Firearms Amendment conducting an investigation, or executing a 2012, Act of the District claims the various search warrant. The responds District registration requirements advance its in- although that the “MPD does routinely terest in public safety by “distinguishing check prior records to re- criminals from citizens, law-abiding en- sponding to a call for service ... such a abling police to arrest criminals immedi- is a check tool appro- available use in ately, facilitating against enforcement pro- priate circumstances.” It undisputed is persons hibited obtaining or continuing to that such checks have taken place, albeit firearms, possess reducing gun trafficking, rarely. increasing and the difficulty for criminals to acquire guns.” We

Therefore, next address wheth- question remains wheth- has, er the District regard with that to each promotes er “tool” the District’s as- challenged registration provision, police serted interest in offered protection. Dis- substantial evidence from covery it subsequent to our which could decision in reasonably have Heller II concluded the provision indicates it does not. mitigate will various public threats to safe- According deposition to the testimony of ty “in a direct and material way,” Turner officer, an MPD police District “are I, 512 U.S. at whether trained to treat situations where there in one of the ways anticipated by the D.C. might be a progress crime in or domestic Council otherwise. dispute or some other possibly situation involving violence always having po- In-person i. appearance, finger- to dangerous tential have a weapon pres- printing, and photographing, Further, ent.” one of expert the District’s 7-2502.04 witnesses stated that if the registration system indicated no weapon present was at The District presented has sub address, an then officers “would continue stantial evidence from which it could exercise caution.” The best the Dis- conclude that fingerprinting photo expert trict’s could offer was that positive each person registering a gun graphing gun might confirmation of a raise promotes public officers’ safety by facilitating “caution level ... higher.” much gun’s owner, identification of a both at the time of registration upon any testimony The of the District’s own wit- subsequent police check of gun’s reg nesses, therefore, indicates the rec- istration. The regis ords established via re- appear person trants is necessary in quirements, queried all, when have little order for a photograph fingerprints no effect upon or safety conduct to be taken. police light officers. of this additional evidence, we agree with the statement of First, the fingerprinting requirement: colleague our in Heller II that the asserted Report of the Committee on the Judi- police interest in protection “leaves far too ciary stated that initial fingerprint- “[t]he many false negatives satisfy inter- .... ing requirement is fundamental for the (Ka- mediate scrutiny.” 670 F.3d at 1295 to fulfill [MPD] its public safety obli- J., vanaugh, dissenting). gations registering being able firearms — registrant screen the to ensure that he safety

b. Public or she is not from possessing a disqualified Drawing directly upon Report support assertion, firearm.” In of this Judiciary Committee of the D.C. Council points testimony to the of Chief if deterrent val- [ie., scrutiny intermediate “[u]sing biometrics

Lanier, said who materially further will identify an indi- ue of measure positively fingerprints] interest. relying than governmental important more effective far vidual is security York, num- 712 F.2d social City New Barry on a name simply this conclu- Cir.1983) reiterates in- (2d Lanier under (upholding ber.” Chief 1559-61 declaration, expert in her finan- requiring sion scrutiny a law termediate declaration. expert echoed Webster’s publicly certain em- cial disclosures right-to- face of a in the ployed individuals to evi- points addition, the that it could the challenge on basis privacy using checks background suggesting dence a “virtual- despite corruption,” than back- “help more reliable deter fingerprints (citation finger- in- and history” corruption-free conducted without ly checks ground omitted)). susceptible to are more The marks which prints, quotation ternal points to the District re- Specifically, fingerprinting fraud. the study indicates GAO ’ the U.S. by conducted investigation indeed, would, help to deter and quirement Office, in Accountability Government disquali- thereby prevent and detect fraud acting in an undercover “agents which five firearms. registering from fied individuals li- driver’s counterfeit capacity used photo- of a Regarding the firearms purchase to attempts in censes Judiciary Committee graph: The that were pawnshops and gun from stores of a importance regis- “the emphasized to sell government federal licensed a present to trant able being GAO-01-427, firearms.” Pur- FIREARMS police so can a photograph, certificate with Firearm Lioensees Federal from chased to whom the identify whether and (2001). quickly Using Bogus Identifioation registered.” The legally firearm been has were, exception, without attempts Those testimony of to pointed Committee con- report The at 2-3. successful. Id. that “a Lanier, certifi- who asserted Chief checks background that federal cluded quickly helps to photo a “cannot cate with firearm by the dealers conducted registra- fact of purchaser safely communicate” is prospective ensure turn, officers, which, “in person prohibited police or other tion not a felon and the of a firearm the officer possession keep both receipt helps to whose Heller, Id. at 2.2 while maintain- registrant would be unlawful.” safe.” registrant will photographing ing expe- has not the District argues Heller fraud, pho- not contest not deter does regis- in the fraud with problem rienced a registrant’s confirmation of tographic implies the He also of firearms. tration public beneficial safe- identity be would arise, the in- given unlikely to is problem an armed police encounter ty when the fraudu- manufacturing difficulty of creased 7-2502.08(c) § registrant. See D.C.Code today, as documents lent identification (“Each the regis- shall have registrant conclud- GAO when the compared possession whenever possession, trant’s true, if this is Even investigation. ed its certificate, firearm, or aof meas- however, prophylactic disclosure firearm, thereof, for such photocopy exact here survives one issue ure such as the birth, race, sex, (4) name, (2) (3) date of conducted its which GAO states in. § (5) 25.7. A 28 C.F.R. Crimi- residence. adopted the Instant state of study National had (NICS), addition, System report purchas- see 18 Background may, Check nal dealer now, which, 922(t), then as identifying under Security U.S.C. num- or other er’s Social required is of each information following description. Id. physical ber (1) undergoes check: a NICS individual who upon istrant, and exhibit the same the demand of a physically then bringing [MPD], member of the or other law en- similarly necessary verify the character officer”). forcement of the registered weapon.” Id. Yet com- mon suggests sense a person go would not reasons, foregoing For the we believe to the of obtaining trouble a registration the District has adduced substantial evi- weapon certificate for a other than a weap- dence from which it reasonably could on in possession. his On the contrary, conclude that fingerprinting photo- suggests common sense that bringing fire- graphing registrants directly will and ma- arms to the MPD would likely more be a terially public safety by advance prevent- public threat safety; as Heller main- ing at ineligible least some individuals tains, there is a “risk that gun may be and, from obtaining weapons impor- more stolen en route or that the regis- [would-be tant, by facilitating identification of the may trant] arrested even shot by a registered owner of a during firearm any police (or seeing officer a ‘man gun’ with a subsequent police. encounter with the case).” gun requirements Those are therefore not un- constitutional. The additional require- Re-registration, iii. D.C.Code ment that registrants appear in person to § 7-2502.07a be photographed fingerprinted is but corollary The District necessary implement jus has offered those three II, tifications for requirements. requirement the gun See Heller 670 that a F.3d at * re-register owner (noting 1249 n. that his firearm pro- every administrative three years. None is supported by visions “incidental underlying to the substantial re- evidence from gime” are which the “lawful insofar as the District could rea underly- lawful”). sonably ing have regime is concluded that requiring re

registration would advance an important Bringing firearm, ii. D.C.Code governmental interest. 7-2502.04(c)

§ First, the experts District’s argued that argues The District that re-registration the “re improve “will public safety quirement that the firearm that, be made avail making sure in the time since [the able inspection for verify allows MPD to gun registered, owner] first [he not has] application that the information is correct fallen into a category persons prohibited and that the firearm has not been owning III, altered from a firearm.” Heller or switched with another firearm.”' F.Supp.3d at 67-68. As rightly Heller District, however, out, however, has offered no evi points “District officials and dence—-let alone substantial experts evidence— conceded background [that] checks from which it can be inferred that verifica could be any conducted at time without tion will promote public safety. causing The dis registrations to expire.” The trict court acknowledged as much re-registration when it requirement cannot survive noted that not (dubious) one of the District’s four scrutiny intermediate on the ba experts “specifically the re sis that it addresse[d] will make this task easier. Cf. — quirement registrants bring gun -, Coakley, McCullen v. U.S. registered III, to be (2014) with them.” Heller S.Ct. 189 L.Ed.2d 502 (“To 45 F.Supp.3d at 59. The district court meet the of narrow tai nonetheless deemed it a loring, “common-sense government must demonstrate inference” that “if in-person appearance is that alternative measures that burden sub necessary verify the identity reg- stantially speech less would fail to achieve that an owner who to believe interests, no reason simply not government’s or has been lost suspect gun his easier”). does not is chosen route registered likely to look for stolen re- triennial Second, argues the District it. re-registering weapon prior maintain the accu- help to will

registration This database. registration racy of Fees, § 7-2502.05 iv. D.C.Code true, far it is from self-evidently but seems may argues “[t]he Heller burdening every for reason adequate a fundamental condition exercise not already a re- there is when owner gun creation of a right on the constitutional report relevant gun owners quirement regime and then burdensome information, as such in their changes costs’ imposing ‘administrative justify (re- § 7-2502.08 address. new regis argue it.” He does pay for To the extent reporting). quiring such firearm and per fees of $35 tration $13 of a disposal or death owner’s gun that a Regs. tit. Mun. fingerprinting, D.C. the Dis- fact of which is a registered 2320.3(c)(3), unreasonably high. aware, regis- the District’s trict should any applied new requirements tration already said Heller As we satisfy should the District owner within II, ... provisions inciden “administrative that interest. in regime” underlying tal to —which fees associated with clude reasonable that it has “an

Third, argues the District lawful insofar as verifying the in its residents interest —are regime is lawful. F.3d underlying in order “to their firearms” whereabouts *; Hamp v. New n. see also Cox have been lost firearms when determine shire, 569, 577, 312 U.S. however, law, separately District stolen.” (1941) (holding, response L.Ed. the loss report or gun owner requires a challenge pa to a First to a Amendment “immediately upon dis- weapon a theft of statute, government that a licensing rade theft, a imposes covery” of the loss or expense a fee “to meet the may impose for failure to do so. Id. monetary penalty the act of incident to the administration contrast, 2502.08(a)(1). re-reg- the § 7— public order and to the maintenance penalty no imposes provision istration licensed”); Kwong Bloom the matter the revocation re-register except failure to (2d Cir.2013) 160, 165-69 berg, 723 F.3d certificate, per- but a of one’s a fee for (holding constitutional $340 lost or stolen weapon has been son whose handgun in one’s possess license of a certificate. Al- longer has need no home). such, fees associ reasonable As argu- to make the District fails though the requirements the ated with constitutional brief, its report the in its express ment fingerprinting also Judiciary, on which the on the Committee constitutional. asserted general, relies in brief may complement provision re-registration requirements, D.C.Code v. Education because it loss-reporting provision 7-2502.03(a)(10), §§ 7- look for his or “likely causes owner 2502.03(a)(13) while, for a used” gun if it hasn’t been her presented The has sub re-reg- The speculation. that is mere but it could con from which gun stantial evidence only that process requires istration use of fire training in the safe clude that regis- has the that he still owner affirm safety by reducing public promotes arms require gun not weapon; it tered does firearms, but has involving pre accidents weapon. to examine physically owner it from which could Therefore, no evidence there is sented § id. 7-2502.07a. that passing conclude a test of knowledge knowledge of the gun District’s laws will gun local about laws does so. safety The promote public safety. Indeed, the closest therefore, training, constitutional; is experts District’s came to addressing legal knowledge test of is not. subject was the statement by Chief Lanier that “in order to registrants make Regarding the safety one-hour firearms more clearly course, law, accountable under the MPD, available online or at the Safety Training Course, important is to be able to demonstrate https:// FiReaems (last they taught were dcfst.mpdconline.com/ Aug. visited aware of the re- 2015), quirements.” experts assertion, the District’s each This however, testified to their belief in the value of training to does not tie knowledge of the law to the prevent accidents. Heller responds that District’s public interest in safety. “the experts District’s cite no studies Furthermore, even if acquiring knowl- showing that mandatory training testing edge of the law were demonstrably helpful, safety reduce unintentional dis the imposition of a requirement that regis- charges.” District, however, need not prove trants their knowledge of the law on Rather, such present evidence. the Su “a test prescribed by the Chief’ is an preme Court “permitted has litigants to burden, additional see 7- justify restrictions ... based ... on 2502.03(10), utility of which sup- consensus, history, simple common ported by no whatsoever, evidence sense” when the conjoined. three are Cf. even Moreover, anecdotal evidence. only Co., Lorillard Tobacco a few of questions the 15 in the test actual- (2001) (internal 121 S.Ct. 2404 quotation ly prescribed by the plausibly Chief reflect omitted). case, marks In this the District a concern public with safety.4 has offered anecdotal showing evidence adoption of training requirements “in Because the District most has offered no evi- every law enforcement profession that re dence from which the court can infer it quires carrying of a firearm” and a reasonably concluded that knowledge of its professional consensus in favor safety gun laws, as test, shown passing its will training.3 Though experts its have charac promote safety, public on this record the terized the training requirement as mat a requirement must be held constitutionally sense,” ter of “common this is not a case in invalid.

which the District has asked the court upon

rule the basis of “common sense” One-pistol-per-month vi. rule, alone. 7-2502.03(e) D.C.Code.

None of the District’s experts, The District presented has not however, offers reason any to believe that substantial evidence to support conclu- (Lanier declaration) ("California, 3. J.A. 394 ("When Compare handling J.A. 834 a fire- Connecticut, Hawaii, Massachusetts, arm, (A) you always: should Treat it as if it is Michigan requiring all have laws some sort of loaded; (B) direction; (C) Point it in a safe training safety or part certification as B”) ("To Both A with purchase J.A. 834 registration process, jurisdictions and other you ammunition in the District of Columbia considering instituting require- similar following must possession: have the in your ments"); (Vince declaration) J.A. 407 (stating (A) (B) Passport; A U.S. A regis- valid firearm that he “do[es] not know of one ex- firearm certificate; (C) tration A valid driver's li- pert or law enforcement trainer who has not cense”). strongly attending recommended and success- fully passing safety prior owning course using firearm”). or he could because into the District guns er prohibition its sion that month one per more than register not per registrant pistol one than “more of experience support of § 7- lacks there 30-day period,” any during Indeed, as Heller common sense. govern- of a substantial 2502.03(e),“promotes acknowledged notes, Lanier less even Chief be achieved that would interest mental limitations efficacy purchasing of Heller that the regulation.” effectively absent may have little trafficking in Against preventing Rock II, 1258 (quoting F.3d at efficacy of 782-83, bearing upon S.Ct. Racism, in so. doing 2746). unconstitutional. limitations therefore It is argument, second that the limitation for the District’s As argues The District that, it in his experts that testified trafficking one of its gun could reduce of lim safety by method “the most effective public opinion, promote would further circulation, firearms, homi including in guns misuse iting limiting the number suicide, injuries, is reasonably cide, conclude and accidental “could as theft, in a present number of firearms gun to more lead limit guns that more however, suicides, true, accidents, that as gun Accepting more home.” more restricting an individu justify it not gun crimes.” does and more keep right to al’s undoubted constitutional argument, first District’s for the As home, whether or her (plural) his arms testimony presented expert what little hunting just or collect for self-defense pur- limiting gun that indicates indeed conclusion, because, logical to its taken ing, trafficking limit might in turn chases ban on justify total reasoning would experts’ conclusion weapons. Parker v. in the home. See kept firearms would likewise registrations limiting gun Columbia, 478 F.3d District of is, however, unsupport- trafficking reduce (D.C.Cir.2007), I nom. Heller sub aff'd example, Chief For ed evidence. that a argument (rejecting the District’s have shown “[s]tudies Lanier stated constitutional type gun was ban on one pur- registration or restricting the laws “prohibition [did] because given peri- in a firearms multiple chase of noting disarmament” and total threaten inter- illegal disrupting are effective od adopted that, argument “[i]t were if such Yet of firearms.” trafficking state all fire similarly contended that could other District’s only study she sabers long so as may be banned arms nothing to with has do cited witnesses permitted”). were title registration,” its restricting “laws & Douglas S. Weil Rebecca attests. See III. Conclusion Knox, Limiting Handgun C. Effects above, the forth the reasons set For Fire- Interstate Purchases on Transfer (1996). final order is AFFIRMED court’s arms, 1759 district 275 J. Am. Med. Ass’n re- registration respect to: basic his with testified from experts also One of long guns, applied as quirement Virginia limited that when own observation 7-2502.01(a); requirement 'the § every days, D.C.Code to one 30 purchases firearm pho- fingerprinted registrant in a used that Virginia in were guns bought fewer appear- personal a District; and make tographed in traffick- committed crimes § 7- firearm, D.C.Code register a observed, more sourced ance ers, instead he individu- 2502.04; that an requirement Mary- purchasers in through straw guns with the associated certain true, sugges- al fees pay if is even this land. But § firearm, 7- of a D.C.Code bring few- would gun a trafficker tion that 281 2502.05; requirement and the regis- My that colleagues uphold six District of Co- complete safety trants a firearms and lumbia firearms laws but strike down four course, § training D.C.Code 7- of them. I uphold all, Because would them 2502.03(a)(13). The district I concur in part court’s order and dissent in part. view, is respect my with REVERSED to the re- the firearms laws that my col- quirement person bring leagues with him (hereinafter, invalidate the remain- laws) registered, firearm to be ing D.C.Code satisfy and, intermediate scrutiny 2502.04(c); § the requirement that a accordingly, I would affirm the Y— well-rea- gun re-register every owner his firearm soned decision of the district court. See 45 7-2502.07a; (D.D.C.2014). § three years, D.C.Code F.Supp.3d 35 conditions upon passing firearm test of knowledge Principles I. General laws, of the District’s firearms D.C.Code Since Supreme Court’s in decision 7-2502.03(a)(10); § prohibition and the on Heller, this analyzes Court Second Amend- registration of “more than one per pistol ment challenges under a two-step frame- registrant during any 30-day period,” First, work. askwe whether the law “im- 7-2502.03(e). pinges upon” Second Amendment rights, i.e.,

So ordered. whether it has “more than a de minim- is effect” on right to keep and bear HENDERSON, KAREN LeCRAFT (Heller arms. Heller v. Dist. Columbia Judge, Circuit concurring part II), 1244, 670 (D.C.Cir.2011). F.3d 1252-53 dissenting part: Second, does, if it we evaluate it under “the appropriate level of constitutional Regulating firearms in order to combat scrutiny.” Id. at 1252. In an earlier itera- grave violence is a and complex task. case, tion of this we concluded that Court Supreme has made legisla- challenged were laws “not de minimis” be- tive endeavor considerably more difficult they cause were “novel” and “ma[d]e by “tak[ing] policy certain off choices considerably more difficult for a person table,” Heller, Dist. Columbia v. 554 lawfully to acquire keep a firearm ... 636, 570, 2783, U.S. 128 S.Ct. 171 L.Ed.2d [for] self-defense in the home.” Id. (2008), and divining a new—and in- Heller, 1255 (citing 630, 554 U.S. at complete, 635, see id. at 128 S.Ct. 2783— 2783). S.Ct. alsoWe determined that in- of what definition the Second Amendment scrutiny, termediate scrutiny, not strict protects. Heller has our “hand[ed] demo- the proper yardstick because the laws “do destiny cratic the courts” inviting lit- not severely possession limit the of fire- igants to draw them political into this (alteration arms.” Id. at 1257 quota- thicket. III, Guns, J. Harvie Wilkinson Of omitted). tion marks Abortions, and the Unraveling Rule of Law, (2009). 95 Va. L.Rev. Happ- scrutiny Intermediate genesis has its ily, the “dominoes” have not fallen as the Supreme equal protection Court’s Heller, quickly expected, 554 U.S. at speech See, free jurisprudence. e.g., Craig (Stevens, 128 S.Ct. J., Boren, dissent- ing), as most of our sister (1976); circuits have 50 United States v. L.Ed.2d healthy O’Brien, afforded level of deference to the 367, 377, 391 1673, U.S. 88 S.Ct. today law-makers. But I majori- (1968). fear the 20 L.Ed.2d 672 It is a middle- ty has initiated a retreat —at in ground least approach that proper pro “offer[s] part practice of restraint. tection in the many instances in which a —from

282 judgments public policy constitutionally make sensitive adversely affects statute limits) concerning (within constitutional' neither warrants but interests protected and the carrying firearms dangers in (as ‘strict condemnation near-automatic (quo risks.” Id. those to combat manner ap nor near-automatic scrutiny’ implies) omitted). policy is a Firearm marks tation re basis’ (as in ‘rational implicit proval — implicating dynamic” issue and “complex Alvarez, U.S. view).” v. States United legislature that the amounts of data” “vast 2552, 183 2537, L.Ed.2d 574 -, 132 S.Ct. gather to and equipped” better is “far J., judg concurring (2012) (Breyer, 665-66, 114 I, 512 U.S. analyze. Turner balancing essentially imposes ment). It diffi can be “information 2445. Such S.Ct. gov if “the constitutional law is test: of certain impact and the obtain cult to burden outweighs the interest ernmental assess,” v. Holder Hu difficult to conduct rights] and cannot constitutional [on 1, 34, Project, 561 U.S. Law manitarian infringe not that do by achieved means (2010),due 2705, 177 355 130 S.Ct. L.Ed.2d Minneapolis Star significantly.” rights as facing different challenges different Reve Minn. Comm’r v. Tribune Co. & factors that multiple jurisdictions and 1365, 7, 575, nue, n. 103 S.Ct. 585 460 U.S. Indeed, violence. gun contribute (1983). fit between “[T]he 75 L.Ed.2d 295 or incomplete either does exist is data that and asserted challenged regulation by partisanship: influenced reasonable, per only be objective need justice in the realm of U.S. topics New 980, Holder, F.3d 704 fect,” v. Schrader polarizing elicit a more re- politics and (alterations (D.C.Cir.2013) quota control.... At that of sponse than omitted), challenged and the marks tion is the funda- the center debate the least restrictive not be law “need firearms, of whether question mental achieving the of’ means intrusive least and wielded those owned specifically interest, v. Rock Ward government’s citizens, than more harm do private Racism, 491 U.S. Against crime. deterring violent De- good (1989). 2746, 105 L.Ed.2d S.Ct. many from scrutiny so spite intense scrutiny intermediate application however, fields, have reached scholars from extent context to some “varies to date. The an- conclusions solid few v. case.” context, Bartnicki and case (who is questions basic to even swers (3d Cir.1999), 109, 124 F.3d Vopper, 200 victimized, victimized, many are how 1753, 514, 121 S.Ct. aff'd, 532 U.S. victimized) are they at what cost (2001). con In this case L.Ed.2d 787 in a nebulous resulting fiercely disputed, following text, principles I believe understanding of the hotly yet contested analysis. shape our should and crime.... guns interplay between sides; support both exists to Data First, regulation of firearms the nature difficulty separating partisanship lies legisla to the ample deference requires empirical from underlying attitudes that, in the held previously ture. haveWe analysis. objective observation context, afford “we Second Amendment objectivity truth, such the isolation of predictive to the ‘substantial deference ” may logical impossibility. be a Schrader, legislature].’ judgments [the Ency- Broad. Turner II Amekican (quoting at 990 An 704 F.3d Political Culture: (Michael clopedia Shally-Jensen I), (Turner 505-06 Sys., Inc. FCC ed.2015). scrutiny ais flexi- Intermediate 129 L.Ed.2d for different that allows (1994)). legislature is ble framework “the This is because approaches range and a perspectives judiciary to than the equipped far better

283 Second, regulation. firearms Fla. Bar v. See Went the District of Columbia is sui Inc., It, 618, 632, For 515 U.S. generis. plaintiffs 115 S.Ct. The are quick to point 2371, (1995) (intermediate 132 L.Ed.2d 541 out District’s firearms laws are toughest scrutiny in the require single country does not “the best and that a few parallel have no in disposition” problem); jurisdictions. to other Time Warner But their Co., point is States, unhelpful if Entm’t L.P. v. United 211 F.3d is different 1313, (“In jurisdictions. from (D.C.Cir.2000) other 1322 in- And applying it is. notably, Most the District is termediate the seat scrutiny, inquire we ‘not wheth- our national government. of er record Congress, objective matter, as an was amply documents unique security risks correct....’” (quoting Turner Broad. presented by a city full of high-level (Turner gov Sys., II), Inc. v. FCC 520 U.S. officials, diplomats, ernment monuments, 180, 211, 1174, 137 L.Ed.2d 369 parades, protests and and, (1997) demonstrations added))). (emphasis perhaps pertinent, most govern countless Indeed, judicial humility especially im buildings ment where citizens are almost portant the context of regula firearms universally prohibited from possessing Although tion. our Second Amendment See, firearms. e.g., 930(a), § 18 U.S.C. precedent draws First Amendment and (unlawful (g)(1) to “knowingly possess[ or] cases, see, voting-rights II, e.g., Heller to present cause[ ] a firearm or other 1257, right F.3d to bear arms is dangerous weapon in ... building meaningfully different rights from the part thereof owned or by leased the Fed speak USPS, and vote. Bonidy Government, eral where Federal employ (10th 1121, Cir.2015) (“The F.3d risk regularly ees are present for purpose inherent in firearms and weapons other performing their duties,” official other distinguishes the Second right Amendment than a Federal court facility); id. from other rights fundamental 930(e)(1) (unlawful § to “possess[] or can be exercised creating without direct present to be eause[] a firearm or other others.”). time, risk At same how dangerous weapon in a Federal court facil ever, the Second Amendment is not a “sec ity”); 5104(e)(1)(A) (unlawful § 40 U.S.C. right,” Chi., ond-class City McDonald v. “carry on or readily have accessible to S.Ct. any individual on the any Grounds or in (2010) L.Ed.2d 894 (plurality), but the real the Capitol Buildings firearm”); see also ity violence our means constitution 18 U.S.C. 922(q)(2)(A) (making schools analysis al incorporate should deference to zones); gun-free Lanier Test. 2-5. In legislature, see Humanitarian Law deed, town, walking around gets this one Project, 34-36, 561 U.S. at 130 S.Ct. 2705. impression that it big govern is one One of our sister circuits said it well: Heller, ment building. 554 U.S. at Cf. This is serious business. We do not (“the 128 S.Ct. 2783 right secured to be minutely wish even responsible for Second Amendment is not unlimited” and some unspeakably tragic mayhem act of give way regulations can carry of “the peace judicial because of our ing of firearms in places” sensitive like chambers we miscalculated as to Second “government buildings”). Although the rights.... Amendment If ever there not stop Beltway, Constitution does at the restraint, anwas occasion for this would analysis our unique should account for the seem to be it. challenges that confront the District as it Masciandaro, United States v. 638 F.3d struggles regulate firearms our Na (4th Cir.2011). 475-76 capital. tion’s See City v. Alameda of L.A. 284 knowledge furthers its test 425, 439-40, 122 “no evidence” S.Ct.

Books, Inc., U.S. 535 Br. 53- Appellants’ (“A interests. (2002) alleged its munici 670 1728, L.Ed.2d 152 54; But the notion Maj. Op. 278-79. solution an innovative considering pality knowledge is obvi test-taking promotes demonstrate that could data may have not teacher, profes any student ous—ask proposal because efficacy its country. in See licensing board definition, have been sional would, by solution 648, 658, Prouse, 99 440 U.S. Delaware previously.”). implemented (1979) (“States 1391, 660 59 L.Ed.2d S.Ct. only ensuring in interest have a vital Remaining II. Laws The' permitted so are to do qualified those the District’s down colleagues strike My ... are suffi [and] motor vehicles operate pass a knowl- registrants requiring laws of the the rules ciently familiar with 7-2502.03(a)(10); § test, edge Pub. ”); Levitt v. Comm. road.... for id. inspection, for firearms their present 472, Liberty, 413 U.S. Religious Educ. & 7-2502.04(c); their renew § (1973) 2814, 480, L.Ed.2d 736 37 93 S.Ct. 7-2502.07a(a); § id. years, every three internal (“a traditional program of regular pistol per than one no more register pupil achieve to measure testing designed 7-2502.03(e). I these month, address §id. integral role “obviously plays an ment” view, my in why, explain laws seriatim process”); teaching ... in the total scrutiny. intermediate satisfies each one Exam., Bar 353 U.S. v. Bd. Schware 752, 796 232, 239, 1 L.Ed.2d Knowledge Test A. (“A (1957) high stan require can State register gun, can individual an Before profi ... such as qualification, dards of of the knowledge his he demonstrate must law, ap before it admits ciency its a test.' by passing laws firearms District’s ”). the bar.... Several plicant to 7-2502.03(a)(10). test is not The Id. to that effect. experts testified District’s of two it consists onerous: particularly ¶¶ 23-24; Deck Decl. Jones Lanier See ques- multiple-choice thirteen pages with ¶ 2; ¶ 35; Test. 23; Deck Lanier Webster questions.1 two tions and True/False 10. Under intermediate Report Jones questions answer must eleven examinee cite not need to scrutiny, the District does 70%). (a pass need He correctly score the common-sense studies for empirical id., once, and he can retake only the test testing promotes mandatory notion 24 See many times as he wants. to, of, its laws. knowledge and obedience The test is intended § 2311.7-.8. DCMR Reilly, 533 Tobacco Co. v. Lorillard have a level gun owners “basic ensure L.Ed.2d S.Ct. U.S. firearms the District’s knowledge” about (2001) (“[W]e litigants permitted have laws, in Report Those laws. Comm. applying scru a case strict even[ ] turn, Id. public safety. promote solely on tiny, to restrictions based justify consensus, common ‘simple contend, history, my col plaintiffs The' ” , For (quoting Went sense.’ presented that the District leagues agree, It Consider, (B) permit obtaining special written After questions are not difficult. 1. The Question authorizing the example, 3: the Chief of Police from discharged public may lawfully discharged on weapon be Firearms public space the District of Columbia: space. (A) Eve. Into the air on New Year's (B) registered turkey Thanks- At hunts on giving. added))); added)). 115 S.Ct. 2371 (emphasis him.” (emphasis often, All too FCC, Nat’l Cable & Telecomms. Ass’n v. individuals do not know the law and legis- (D.C.Cir.2009) (we 555 F.3d do latures do well to they ensure are in- require not “exhaustive evidence docu formed they before can own and use a ' menting necessity given of [a law]” dangerous weapon. legislature’s] have “relied on [the we sum, I believe the District’s knowl- reasonable, commonsense determination edge test satisfies scrutiny. intermediate required”). law general [the is] See It ensures a owner has a basic under- ly PAC, Nixon v. Shrink Mo. Gov’t 528 standing of the District’s firearms laws— 377, 391, U.S. 120 S.Ct. 145 L.Ed.2d laws that unquestionably promote the pub- (2000) (“The 886 quantum of empirical ev safety. lic idence needed to satisfy heightened judi scrutiny cial legislative judgments will Presenting B. the Firearm

vary up or down novelty with the raised”). plausibility justification of the The Metropolitan Police Department plaintiffs The identify do not any alter- (MPD) require can a potential registrant native means which the District can present his for inspection. firearm goals. its implied achieve Their alterna- 7-2502.04(c). §' The law has an tive—no test at plainly lacking. all—is obvious, straightforward purpose: verifica- Given uniqueness complexity tion. See Appellees’ 47-48; Br. Defs.’ laws, the District’s firearms it has an espe- Reply J. Summ. Br. 25 n. 21. The MPD cially need to pressing educate its citizens wants to conduct a physical inspection to about their contents. Under intermediate “verify that the application information is scrutiny, District can prophy- a “add[ ] correct and that the firearm has not been law,” laxis to the even if upon it “focuses altered.” Appellees’ 47-48; Br. see 24 already behavior arguably proscribed by 2313.8(c) (“The § DCMR may Director re- Warner, other laws.” Time 211 F.3d at quire applicant an return with the fire- 1320; Mahin, also see United v. States 668 if ... arm the information relating to the (4th Cir.2012) (“The F.3d 127 Second weapon on application [appears] incor- Amendment does not Congress disable and rect, misleading, or incomplete.”). It also erecting states from preventative to ensure wants the firearm in. is safe added)). (emphasis measures-” Grant- operating condition and does not belong to ed, cases, in criminal usually courts pre- prohibited a class weapons. See 24 sume that individuals know the law. See 2313.8(b) (“The § DCMR may Director re- — States, U.S.-, McFadden United applicant an quire return with the fire- 2298, 2304, 192 L.Ed.2d 260 if arm ... may unregister- firearm (2015) (“[I]gnorance of the law typically is able, defective, dangerous or in a condition ”). no to criminal prosecution.... defense disrepair.”). or state of But presumption legal fiction, this is a contend, an plaintiffs The description my accurate world. See col- States, McBoyle leagues agree, v. United physically inspecting U.S. (1931); unnecessary S.Ct. L.Ed. 816 firearm is see also because no one (Constable Table-TalK Selden, register would both & firearm and lie John 1827) (“Ignorance Co. physical' of the law its they excuses about characteristics — man; law, no not that all simply men knoiv the register would it in decline but every because ’tis an excuse place. man will Op. first See Maj. But the plead, and no man can tell how to confute present-the-firearm requirement is not present-the- I believe the Accordingly, District is only; the falsehoods

targeted intermediate requirement satisfies firearm innocent mistakes. about also worried slight burden scrutiny. imposes It (“The 2313.8(c) may Director § 24 DCMR to veri- and allows the registrants with the to return require applicant correctly, is described fy the firearm in- application [appears] if ... firearm altered, operate and is safe to been has not (emphases incomplete.” correct registration. eligible is not be added)). will many registrants And oper- firearm unsafe that their aware Re-Registration C. see id. registered, to be ineligible ate or and allow certificates 2313.8(b), they present District’s until § 7- years. Id. every look. three expire a closer to the MPD take 2502.07a(a). Thus, wants gun a owner who that the further contend plaintiffs The periodi- registration must maintain his to is out- in verification District’s interest “simple” by is cally it. Id. Renewal renew presenting the burdens by weighed regis- The Report 10. design. Comm. Ac- registrants. on imposes the firearm online, by form two-page fills out a trant person a who plaintiffs, cording to the § 7- person. mail or D.C.Code could be to the MPD his firearm presents 2502.07a(c). question- a The form includes arrested, gun stolen or be mistak- have his registrant to determine whether naire risks, my These for an en assailant. a firearm and possess to qualified remains starters, For mind, overblown. quite are and an attes- current address requests his a firearm to transport not a it is crime possesses continues to tation that he it. registering purpose the MPD for Registration Re- Firearms firearm. See n 22-4504.01; 22- §§ See D.C.Code Dep’t, Application, newal Police MetRo. Moreover, § 4504.02(a); 926a. 18 U.S.C. http://mpdc.dc.gov/sites/ at available to leave their instructed registrants are default/files/dc/sites/mpde/publication/ it, present unless asked to firearm home 20Registration% attachments/Firearms% 2313.7, transport and must § (last DCMR 2012.18.13.pdf 20Form% 20Renewal% with [section] “in accordance 2015).2 the firearm 17, District September visited 7-2502.04(c)— 22-4504.02,” § D.C.Code his certifi- registrant a renew reminds container, ie., unloaded, in a locked stored advance, ninety days in cate D.C.Code and inac- any ammunition separate from 7-2502.07a(e)(l), ninety- him a gives § and any passenger, driver period cessible to the renewal day grace period after the 22^504.02(b)-(c). provi- Re-regis- § § These id. 2326.4. expires, see see DCMR accident. It purposes. pro- the risk sions minimize serves several tration by allowing or misun- the Dis- remaining safety risk of theft any public And motes owner has gun of own- monitor whether a an inherent feature trict to derstanding is people who cannot into a class of unique problem a creat- fallen a ing firearm —not felons, the (e.g., a firearm legally possess laws. by ed the District’s http://mpdc.dc.gov/page/firearms-registration- regis- a the certificate for firearm 2. To renew (last 2011, 1, renewal-complete-renewal-procedures registrant January tered before 17, 2015) ("Subsequent September finger- appear person visited must also will be done online or pro- renewals This printed. 24 DCMR 2326.2. See mail.”). for the same by It is constitutional does cess is one-time re-registration, fingerprinting that the subsequent See Firearms reasons apply renewals. requirements in-person appearance Complete Renewal Registration Renewal: Procedures, constitutional. available at Dep’t, Metro. Police ill, orders). subjects mentally protective does not burden “substantially more 4, 11-12; Report Comm. See Jones Decl. [rights] than necessary,” is not that it is ¶ ¶ ¶ 23; 21; 22; Lanier Decl. Vince Decl. the “least intrusive means” of keeping ¶Decl. 30. it keeps Webster And the Dis- tabs owners. McCullen v. Coak — trict’s firearms registry up to date. See ley, -, U.S. S.Ct. Report Comm. 10. The MPD needs (2014) 189 L.Ed.2d 502 Ward, (quoting updated information, including regis- 798-99, 2746). 491 U.S. at As address, trant’s most recent so that suming they could reveal all the reasons knows where to retrieve the firearm if the someone might become disqualified- to owner disqualified becomes possess it. (a possess a firearm proposition, dubious ¶ ¶ 21; 30; Lanier Decl. Webster Decl. see generally § 7-2502.03(a)), I (“The Appellees’ see also Br. 48 fail to see how dragnet background ... has population significantly checks are “substantially” less burden states.”). more transient than other More- some than filling out a two-page form ev over, re-registration helps combat the loss ery years. McCullen, three 134 S.Ct. at illegal transfer of firearms requir- Moreover, background checks ing a registrant weapons account for his plainly do not further the District’s inter a regular on by providing basis and MPD ests updating its registry firearms and “up-to-date with information about promoting accountability gun owners. legal firearm’s last whereabouts.” Comm. As for interests, the latter 11; Report 8, plaintiffs 10; see also id. at Webster ¶ out point that a gun owner already Decl. 30. is required to notify the District if he plaintiffs The argue that the District changes his address or loses his firearm. could achieve each goals of these with less 7-2502.08(a). § See D.C.Code But burdensome ensuring alternatives. As for rely District tried to registrant notifi registrant that a does not fall into a dis cation for years several and the experi class, qualified plaintiffs note that the ment failed. to the According Committee District is free to run background checks Report, “[relying on notification alone] pleases. whenever it Yet background has not been effective. reg Thousands of checks are less efficient and effective than moved, died, istrants have disposed of re-registration a universal requirement, (or guns them) their' perhaps lost ensuring the latter everyone that remains have not notified MPD.... [M]any regis eligible to own a firearm. See Jones trants cannot ¶24 Report located.” Comm. Decl. (re-registration provides “man ¶ 10; see also Jones Decl. 24. Instead of datory accountability public safety continuing ¶ to depend on officials”); registrant-initi id. at (re-registration 23 notification, ated the District’s “compels systemic re-registra a legally review of all requirement tion provides registered “mandatory firearms ac registrants”). course, countability” by “Of forcing registrant a administrative convenience not, update and economic his cost-saving information under threat of ¶ themselves, justifications 24; conclusive cancellation. Jones Decl. see also ¶ ¶ burdening 22; (re a Decl. right constitutional in Vince under Webster Decl. 30 termediate scrutiny. However, such con “is analogous to the widely- siderations are accepted relevant to [the Second Federal requirement that li analysis].” Amendment Bonidy, 790 F.3d censed dealers periodically be audited added). at 1127 (emphasis bottom, At to make they sure that can account for District needs firearms”). to show re-registration their permissible This is a al illegal deterring the loss scrutiny. to-date under intermediate

ternative Ass’n, of firearms. transfer Telecomm’ns & Nat’l Cable See scheme be (affirming opt-in at 1002 F.3d Thirty Days Per D. One Pistol in marginally less only “opt-out cause registrant from a prohibits The “carefully agency opt-in” and than trusive in the pistol than one more registering the[] between differences considered period. thirty-day same D.C.Code “reasonable, commonsense made two” 2305.3; see also 2502.03(e); § § 24 DCMR omitted)). (citation “[T]he determination” 7-2501.01(12) (defining “pis- § require that D.C.Code not does Constitution designed to “any originally tol” as firearm Ro means.” ineffectual choose [District] single hand or with by use of be fired 752, n. Rockefeller, sario length”). 12 inches in than barrel less (1973). L.Ed.2d to an indi- apply not This limitation does the re- believe do not My colleagues District and to the who relocates vidual the loss or deters lawfully pistols he owned register wants to it because does of firearms illegal transfer least six jurisdiction for in another produce registrant require 7-2502.03(e); 24 § months. affirm that only [he] “requires gun; agree parties The DCMR 2305.4.3 In other Maj. Op. 278. [it].” still has he one-pistol-per-thir- purpose behind registrants words, colleagues believe my illegal traffick- ty-days rule is to stem re-registration their truthful on not be will Report Comm. ing handguns. make do not this plaintiffs The forms. 14-15. however, briefs, so we in their argument however, that the argue, plaintiffs indeed, it. not—consider should need not— does noth- limitation one-pistol-per-month Schrader, 991-92. Nor 704 is F.3d See one, they goal. No ing to further this re-registrant A persuasive. argument out, into the Dis- bring pistols would point attest, perjury, penalty under must trict, traffic and then them. register them Fire- firearm. See possesses still he register never simply would person The Application, Registration Renewal arms plaintiffs But at all. focus pistols view, my In the District at 286. supra, equation. The wrong on the side re-regis- that most reasonably assumes limitation di- one-pistol-per-thirty-days is Rehberg v. tell the truth. will trants' Cf. side, rather than the the supply rected at Paulk,-U.S.-, side, trafficking. handgun demand of illegal (threat (2012) perjury 593 182 L.Ed.2d Report: in the Committee As stated testi- deters false adequately prosecution gun traffickers and The law burdens mony). to they supply hire purchasers straw and it makes more guns, them with short, re-regis- I believe District’s In dirty gun rare dealer constitutional difficult passes tration way to look the other willing minimal who only burdens imposes It muster. his walks single individual and simulta- when rights Second Amendment 10 or 20 buy five or even asking store interests in neously the District’s satisfies handguns to be sold inexpensive or more owning from disqualified people preventing on the street. firearms, registry up- firearms keeping the wants. See DCMR many pistols as he one-pistol-per-thirty-days limitation And the 3. only; applies to the initial 2305.3. simultaneously re-register can as individual Report (quoting Weil, Comm. Douglas policymakers may focus on their most pro concerns”).4 A Law that Gun-Rights cessing Advocates Should (Feb. Fighting Keep, Be Wash. Post Given the record it, evidence supporting 2012), http://www.washingtonpost.com/ the one-pistol-per-thirty-days limitation is opinions/a-law-that-gun-rights-advoeates constitutional —a conclusion that is bol should-be-fighting-to-keep/2012/02/16/g stered the fact that it imposes very IQAvcASKR_story.html); see also Jones little burden on Second Amendment ¶ ¶ 18; 29; Decl. Lanier Decl. rights. Vince plaintiffs Decl. The my contend—and ¶ 17. In words, colleagues suggest, other the one-pistol-per- Maj. Op. see 280-81— that an individual thirty-days limitation has as much deters dealers from constitu tional right to a pistol selling second more than he does handgun one at a time They first. note that the Second they because know multiple handguns can Amendment right discusses the to keep registered and, thus, not be cannot be “Arms,” and bear plural. See id. But I possessed or used for lawful purpose. The doubt point their textual has much force: Report Committee points Virginia as an the Second Amendment also uses the word example jurisdiction that, of a after enact “people,” plural, so the “s” on “Arms” is ing law, a similar successfully reduced ille grammatically necessary. And Heller gal handgun trafficking. See Comm. Re does support their position either. 15-16; ¶ port see also Jones Decl. The “core” of the Second Amendment is True, notwithstanding one-pistol-per- right to use a firearm for self-defense thirty days limitation, a firearms trafficker home, Heller, in the 554 U.S. at acquire could handguns from another ju S.Ct. 2783—a right that is vindicated with risdiction transport them into the Dis handgun. one plaintiffs’ position has trict. Maj. Op. 280. But the law no stopping point: it would authorize ev nonetheless the rapid acquisition deters eryone possess his own Rambo-style multiple firearms within the District. See armory. id. at 128 S.Ct. 2783 Cf. (“Since Report Comm. other states per (noting that Second Amendment does not mits multiple gun now, including, sales— protect right to form militia “effective” Virginia District law impor remains —our added)). (emphasis any event, need we Indeed, tant. the other states should fol not decide whether the Second Amend low, so as to erect a wide web to frustrate protects ment the right to a second fire traffickers.”) The District need not— arm as much as the because, first firearm indeed, problems cannot —solve created even assuming does, the one-pistol-per- lax relatively firearms laws other (and month limitation only a small tem jurisdictions. Williams-Yulee v. Fla. porary) Cf. limit on Second Amendment —Bar, U.S.-, 135 S.Ct. rights. It imposes thirty-day waiting (2015) (even 191 L.Ed.2d 570 under strict period right acquire on a second scrutiny, State “[a] need not all address pistol acceptable burden, given the —an aspects problem of a in one swoop; fell availability pistol, of the first the availabili My did, colleagues point out that the any sources I think distinction between purchase cited in Report the Committee discuss limita- registration is immaterial. Because the purchase, tions on registration, not the of prohibits possession unregis- District of handguns. however, Maj. Op. plaintiffs, See 280. The firearms, 7-2502.01(a), tered argument do not make this and I do registration limitation is the functional not believe we should do so on their behalf. equivalent purchases. of a limitation on Schrader, 704 F.3d at 991-92. Even if we deadly costs firearms and

ty of other trafficking. Rosar handgun illegal Cf. (re 760-62,

io, eight months registration party

quiring is consti primary presidential

advance party’s one preventing means

tutional as an themselves designating from

voters voters). party’s

other my conclusion, with col- agree I the District’s uphold decision

leagues’ fee, in- registration,

long-gun finger- photographing, appearance,

person training requirements.

printing opinion display majority parts

Those in its on- to the deference

proper a workable fire- formulate

going efforts I capital. Nation’s for our policy

arms readily too abandon colleagues my

believe however, respect to with approach,

this test, re- present-the-firearm,

knowledge and one-pistol-per-thirty-days respectfully I Accordingly,

requirements. part.

dissent BURLEY, Appellant

Greg RAIL

NATIONAL PASSENGER

CORP., Doing Business as

Amtrak, Appellee. 14-7051.

No. Appeals, States Court

United Circuit. of Columbia 20, 2015.

Argued March 18, 2015. Sept.

Decided Nov. En Banc Denied

Rehearing

Case Details

Case Name: Heller v. District of Columbia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 18, 2015

Citation: 801 F.3d 264

Docket Number: 14-7071

Court Abbreviation: D.C. Cir.