Lead Opinion
I. Background........................ ....................................1248
II. Analysis .................................................................1250
A. Statutory Authority...................................................1250
B. The Second Amendment...............................................1251
1. The Heller Decision................................................1252
2. The Constitutional Framework......................................1252
3. Registration Requirements .........................................1253
a. Do the registration requirements impinge upon the Second Amendment right?...........................................1253
i. Basic registration requirements..............................1253
ii. Novel registration requirements .............................1255
b. Intermediate scrutiny is appropriate..............................1256
c. Intermediate scrutiny requires remand...........................1258
4. Assault Weapons and Large-Capacity Magazines......................1260
a. Do the prohibitions impinge upon the Second Amendment right?____1260
b. Intermediate scrutiny is appropriate..............................1261
c. The prohibitions survive intermediate scrutiny.....................1262
III. Conclusion 1264
Appendix: Regarding the Dissent................................................1264
A. Interpreting Heller and McDonald......................................1264
B. Registration Requirements.............................................1267
C. Assault Weapons......................................................1267
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,
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
I. Background
In Heller, the Supreme Court held the Second Amendment protects “an individual right to keep and bear arms,”
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.
• 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. See id.
• 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)(ll).
• 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],” D.C.Code § 7-2502.02(a)(6), and of magazines holding more than ten rounds of ammunition, § 7-2506.01(b). The FRA defines “assault weapon” to include certain brands and models of semi-automatic rifles, pistols, and shotguns, such as the Colt AR-15 series of rifles, as well as semiautomatic firearms with certain features, regardless of make and model, such as a semi-automatic rifle with a “pistol grip that protrudes conspicuously beneath the action of the weapon” or a “thumbhole stock.” § 7-2501.01(3A)(A). The District also prohibits possession of “any large capacity ammunition feeding device,” which includes “a magazine ... or similar device that has a capacity of ... more than 10 rounds of ammunition.” § 7-2506.01(b) (hereinafter “large-capacity magazines”).
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,
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.,
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 D.C.Code § 1-303.43 (referring to “Council” in lieu of “Commissioners”).
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 D.C.Code § 1-201.01 et seq.), which remains in effect today. Section 302 of the HRA, D.C.Code § 1-203.02, “Legislative Power,” provides in relevant part:
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
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 D.C.Code § l-207.17(b) (“No law or regulation which is in force on January 2, 1975 shall be deemed amended or repealed by [the HRA] except to the extent specifically provided herein or to the extent that such law or regulation is inconsistent with this chapter”).
We agree with the District that it was authorized to enact the challenged gun laws. The HRA granted the District broad legislative power, subject to a few express exceptions, none of which is relevant here. See D.C.Code § 1-203.02; id. § 1-204.04(a). The plaintiffs do not contend the District’s authority to enact these gun laws is limited by any other provision of the HRA, see Marijuana Policy Project v. United States,
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 D.C.Code § 1-303.43. Specifically, § 404(a) of the HRA provides
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.
D.C.Code § l-204.04(a). Accordingly, we need not decide whether the laws at issue are “usual and reasonable” because we hold the District has authority under the HRA to enact laws regulating firearms.
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
1. The Heller Decision
In Heller the Supreme Court explained the Second Amendment “codified a preexisting ” individual right to keep and bear arms,
Still, the Court made clear “the right secured by the Second Amendment is not unlimited,” id. at 626,
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,
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,
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,
With respect to the first step, Heller tells us “longstanding” regulations are “presumptively lawful,”
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 Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 708 (2009) (noting “ban on convicts possessing firearms were unknown before World War I” and “compilation of laws in mid-1925 indicated that no State banned possession of long guns based on a prior conviction; that only six banned possession of concealable weapons on such basis; that, except for New York, ... even those laws dated from 1923 or later”). At just about the same time, states and localities began to require registration of handguns.
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
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.
ii. Novel registration requirements
Several other of the District’s registration requirements are not longstanding, including the ballistics-identification provision, D.C.Code § 7-2502.03(d), the one-pistol-per-30-days rule, § 7-2502.03(e), and the requirements that applicants appear in person, § 7-2502.04(c), and re-register each firearm after three years, § 7-2502.07a(a)-(c). Certain portions of the law that are more akin to licensing the gun owner than to registering the gun are also novel; these include the requirement that an applicant demonstrate knowledge about firearms, § 7-2502.03(a)(10), be fingerprinted and photographed, § 7-2502.04(a)-(b), take a firearms training or safety course, § 7-2502.03(a)(13)(A), meet a vision requirement, § 7-2502.03(a)(11), and submit to a background check every six years, § 7-2502.07a(d).
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.
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,”
Heller clearly does reject any kind of “rational basis” or reasonableness test, see
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,
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.”
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,
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
Although we do “accord substantial deference to the predictive judgments” of the legislature, Turner Broad. Sys., Inc. v. FCC (Turner II),
Nor, however, do the plaintiffs present more meaningful contrary evidence concerning handguns, and neither the District nor the plaintiffs present any evidence at all concerning application of the registration requirements to long guns. The parties’ mutual failure in their briefs to distinguish between handguns and long guns points up a significant deficiency in the present record.
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
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 semiautomatic pistols and shotguns, see page 1249 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.
The Court in Heller, as mentioned above at page 1252, recognized yet another “limitation on the right to keep and carry arms,” namely that the “sorts of weapons protected” are those “ ‘in common use at the time’ for lawful purposes like self-defense.” Id. at 624, 627,
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
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,
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 devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten.
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
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.
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
Heller suggests “M-16 rifles and the like” may be banned because they are “dangerous and unusual,” see
The record also supports the limitation on magazine capacity to ten rounds. The Committee relied upon Siebel’s testimony that “[t]he threat posed by military-style assault weapons is increased significantly if they can be equipped with high-capacity ammunition magazines” because, “[b]y permitting a shooter to fire more than ten rounds without reloading, they greatly increase the firepower of mass shooters.” See also Koper, supra, at 87 (“guns used in shootings are 17% to 26% more likely to have [magazines holding more than ten rounds] than guns used in gunfire cases resulting in no wounded victims”); id. at 97 (“studies ... suggest that attacks with semi-automatics — including [assault weapons] and other semi-automatics with [magazines holding more than ten rounds]— result in more shots fired, persons wounded, and wounds per victim than do other gun attacks”). The Siebel testimony moreover supports the District’s claim that high-capacity magazines are dangerous in self-defense situations because “the ten
We conclude the District has carried its burden of showing a substantial relationship between the prohibition of both semiautomatic 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.
III. Conclusion
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 D.C.Code §§ 7-2502.01(a) and 7-2502.03(b), and second, to the ban on “assault weapons” and large-capacity magazines, as they are defined in §§ 7-2502.02(a)(6), 7-2501.01(3A)(A)(i)(I), (IV), and 7-2506.01(b). With respect to the registration requirements in §§ 7-2502.03(a)(10), 7-2502.03(a)(ll), 7-2502.03(a)(13)(A), 7-2502.03(d), 7-2502.03(e), 7-2502.04, and 7-2502.07a, and all the registration requirements (including §§ 7-2502.01(a) and 7-2502.03(b)) as applied to long guns, see Part II.B.3.C, the judgment is vacated and this matter is remanded to the district court for further proceedings consistent with this opinion.
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 balancing test. As we read Heller, the Court rejected only Justice Breyer’s proposed “interest-balancing” inquiry, which would have had the Court ask whether the challenged 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.”
Our dissenting colleague asserts (at 1282) 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 scrutiny, rational basis),”
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.”
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,
The dissent (at 1284-85) 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 1256-57, 1261— 62.
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 without at the same time adopting any particular level of scrutiny for Second Amendment cases because it concluded that “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family would fail constitutional muster.” Id. at 628-29,
Having rejected the possibility of heightened scrutiny, the dissent (at 1285) 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 consistent with the Second Amendment individual right.” We do not see this purportedly “up-front” test “announced” anywhere in the Court’s opinion. The Court in Heller said certain “longstanding” regulations are “presumptively lawful,”
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 handguns invalidated in that case. Although Heller renders longstanding regulations presumptively constitutional, it nowhere suggests a law must be longstanding or rooted in text, history, and tradition to be constitutional.
B. Registration Requirements
Our dissenting colleague contends (at 1294) 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 1260. 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 on the “entire class of ‘arms’ that is overwhelmingly chosen by American society for [the] lawful purpose” of self-defense.
The dissent, indulging us by assuming some level of heightened scrutiny applies, maintains (at 1288) “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
Finally, in criticizing our application of intermediate scrutiny to the ban on assault weapons, our dissenting colleague says (at 1286, 1290) “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,
Notes
Although the District revised its regulatory scheme, the ban on semi-automatic rifles and the registration scheme themselves are not entirely new. The District has banned all semi-automatic firearms shooting more than twelve shots without reloading and has required basic registration since 1932. See Act of July 8, 1932, ch. 465, §§ 1, 8, 47 Stat. 650, 650, 652. It enacted most of its comprehensive registration scheme in 1975. See Firearms Control Regulations Act of 1975, D.C. Law 1-85.
The plaintiffs also challenge several administrative and enforcement provisions incidental to the underlying regime. See D.C.Code §§ 7-2502.03(d), 7-2502.05(b), D.C. Mun. Regs. tit. 24, § 2320 (fees for registration, ballistics testing, and fingerprinting); D.C.Code § 7-2507.06 (violation punishable by fine of up to $1,000, one year in prison, or both); § 7-2502.08 (registrant must notify MPD if firearm is transferred, lost, stolen, or destroyed, and exhibit registration certificate upon demand of MPD). These provisions are lawful insofar as the underlying regime is lawful and hence enforceable.
In their complaint, the plaintiffs challenge the constitutionality of the FRA insofar as it bans all "assault weapons,” including semi-automatic rifles, pistols, and shotguns. In their briefs, however, they recount no attempt to register a semi-automatic pistol or a semiautomatic shotgun of a kind prohibited by the District’s ban on assault weapons, nor do they mention such weapons in arguing the ban is unconstitutional. Accordingly, we take their challenge to the ban on assault weapons as referring only to the ban on semi-automatic rifles, as set out in D.C.Code § 7-2501.0 1(3A)(A)(i)(I) and (IV). See Summers v. Earth Island Inst.,
Today seven states require registration of some or all firearms, including Hawaii, Haw. Rev.Stat. § 134-3(a), (b), (e) (registration of all firearms); California, Cal.Penal Code § 11106(c) (registration for sales of handguns); Michigan, Mich. Comp. Laws § 28.422(5) (purchaser must provide information to obtain "license” for each pistol); New Jersey, NJ.Rev.Stat. 2C:58-12 (registration of assault firearms); Louisiana, La.Rev.Stat. Ann. § 40:1783 (registration of firearms); Maryland, Md.Code Ann., Crim. Law § 4-303 (registration of pre-ban assault pistols); and Connecticut, Conn. Gen.Stat. § 53-202d(a) (registration of pre-ban assault weapons); as do some cities and counties, including Chicago, Municipal Code § 8-20-140 et seq. (registration of all firearms); New York City, Admin. Code, § 10-304(a), (f) (registration of rifles and shotguns); Las Vegas, Mun. Code § 10.66.140 (registration of handguns); Omaha, Mun. Code § 20-251 (registration of "any coneealable firearm”); Cleveland, Offenses & Bus. Activities Code §§ 674.02, 674.05 (registration card required for each handgun) (but preempted by Ohio Rev.Code Ann. § 9.68(A)); and Clark County, Nevada, Code § 12.04.110 (registration of handguns). Moreover, several states require sellers to report to law enforcement information about firearm sales identifying the purchaser and the firearm. See Legal Cmty. Against Violence, Regulating Guns in America: An Evaluation and Comparative Analysis of Federal, State, and Selected Local Guns Laws, 253 (Feb. 2008), http://www.lcav. org/publications-briefs/reports_analyses/Reg Guns.entire.report.pdf (identifying ten states).
Although some types of licensure have been required by some states since the early 20th century, see, e.g., Act of Apr. 6, 1909, ch. 114, § 3, 1909 N.H. Laws 451, 451-52 (license "to carry a loaded pistol or revolver”); Small Arms Act, Act 206, §§ 5, 7, 1927 Haw. Laws 209, 209-11 (license to carry a pistol or revolver outside the home), the District’s particular requirements are novel, not longstanding.
The requirement of basic registration as applied to long guns may also be de minimis. For now, however, we assume this requirement, too, impinges upon the Second Amendment right because, as we discuss below, the record is devoid of information concerning the application of registration requirements to long guns. On remand and with the benefit of additional evidence, the district court will be better able to address this question in the first instance.
We note that some of the plaintiffs' arguments — in particular with respect to the provisions requiring registrants to demonstrate knowledge about firearms, meet a vision standard, and take a training course — are so cursory we might, in other circumstances, consider them forfeit. See United States v. Law,
On remand, the District will have an opportunity to explain in greater detail how these governmental interests are served by the novel registration requirements. The Committee also thought registration useful because it "gives law enforcement essential information about firearm ownership, ... permits officers to charge individuals with a crime if an individual is in possession of an unregistered firearm, and permits officers to seize unregistered weapons.” Report on Bill 17-843, at 3-4 (Nov. 25, 2008). These rationales are circular, however, and do not on their own establish either an important interest of the Government or a substantial relationship between the registration of firearms and an important interest.
While the Court in Heller observed that the handgun is "the quintessential self-defense weapon,”
We know of only two exceptions: the Act of July 8, 1932, ch. 465, §§ 1, 8, 47 Stat. 650, 650, 652, in which the Congress banned in D.C. "any firearm which shoots ... semi-automatically more than twelve shots without reloading," and the Act of June 2, 1927, No. 372, § 3, 1927 Mich. Laws 887, 888, which prohibited the possession of any "firearm which can be fired more than sixteen times without reloading.”
Indeed, as we noted in Part I, the present plaintiffs, whilst in the district court, sepa
Moreover, despite the dissent’s contrary assertion (at 1288), a number of states and municipalities, representing over one fourth of the Nation’s population, ban semi-automatic rifles or assault weapons, and these bans are by no means “significantly narrower” than the District’s ban. See N.Y. Penal Law §§ 265.00(22), 265.02(7), 265.10 (prohibiting possession, manufacture, disposal, and transport of assault weapons, including AR-15); Conn. Gen.Stat. §§ 53-202a, 53-202c (prohibiting possession of semi-automatic firearms, including AR-15); Cal.Penal Code §§ 12276-12282 (same); Haw.Rev.Stat. §§ 134-1, 134-4, 134 — 8 (banning assault pistols); Mass. Gen. Laws ch. 140, §§ 121-123 (banning assault weapons as defined in expired federal law); Md.Code, Criminal Law, §§ 4-301-4-306 (prohibiting assault pistols); N.J. Stat. Ann. §§ 2C:39-1(w), 2C:39-5 (prohibiting assault firearms, including AR-15); Legal Cmty. Against Violence, Regulating Guns in America: An Evaluation and Comparative Analysis of Federal, State, and Selected Local Guns Laws, 25-26 (Feb. 2008), http:// www.lcav.org/publications-briefs/reports_ analyses/RegGuns.entire.report.pdf (Boston, Cleveland, Columbus, and New York City prohibit assault weapons, including semi-automatic rifles); Aurora, 111., Code of Ordinances § 29-49 (prohibiting assault weapons, including AR-15); City Code of Buffalo N.Y. § 180-1 (prohibiting assault weapons, including assault rifles); Denver Colo. Mun. Code § 38-130 (same); City of Rochester Code § 47-5 (same). In fact, the District’s prohibition is veiy similar to the nationwide ban on assault weapons that was in effect from 1994 to 2004. See 18 U.S.C. §§ 921(a)(30), 922(v)(l) (prohibiting possession of semi-automatic rifles and pistols, including AR-15).
Dissenting Opinion
dissenting:
The Second Amendment to the Constitution provides: “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.” In District of Columbia v. Heller, the Supreme Court held that the Second Amendment confers “an individual right to keep and bear arms.”
In Heller, the Court ruled that the District of Columbia’s ban on the possession of handguns violated the Second Amendment.
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
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 of guns are permissible if they are within the class of traditional, “longstanding” gun regulations in the United States. Registration of all lawfully possessed guns — as distinct from licensing of gun owners or mandatory record-keeping by gun sellers — has not traditionally been required in the United States and even today remains highly unusual. Under Heller's history- and tradition-based test, D.C.’s registration requirement is therefore unconstitutional.
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.
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 possess guns. But the Court emphasized that the Second Amendment does not protect “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” District of Columbia v. Heller,
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 re-calibrate 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 intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations.” But that is the clear message I take away from the Court’s holdings and reasoning in the two cases.
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
Because the D.C. law at issue in Heller banned handguns (including semi-automatic handguns), which have not traditionally been banned and are in common use by law-abiding citizens, the Court found that the D.C. ban on handgun possession violated the Second Amendment. Stressing the D.C. law’s inconsistency with our “historical tradition,” id. at 627,
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 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
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,
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.
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,
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,
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 inter
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 uneonstitutionality (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 [120 S.Ct. 897 ,145 L.Ed.2d 886 ] (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 [117 S.Ct. 1174 ] (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 [120 S.Ct. 897 ] (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,
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 scnitiny. See Turner Broadcasting System, Inc. v. FCC,
The Court responded to Justice Breyer by rejecting his “judge-empowering ‘interest-balancing inquiry’ that ‘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.’ ” Heller,
In rejecting a judicial interest-balancing approach, the Court explained that the Second Amendment “is the very product of an interest balancing by the people” that judges should not “now conduct for them anew.” Id. at 635,
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,
Is it possible, however, that the Heller Court was ruling out intermediate scrutiny but leaving open the possibility that strict scrutiny might apply? That seems highly unlikely, for reasons Justice Breyer himself pointed out in dissent:
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 [117 S.Ct. 1925 ,138 L.Ed.2d 285 ] (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,
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 Second Amendment right and are consistent with that right, as the Court determined in Heller. If courts applied strict scrutiny, however, very few gun regulations would presumably be constitutional.
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.
The Court’s later decision in McDonald underscores that text, history, and tradition guide analysis of gun laws and regulations. There, the Court again precluded the use of balancing tests; furthermore, it expressly rejected judicial assessment of “the costs and benefits of firearms restrictions” and stated that courts applying the Second Amendment thus would not have to make “difficult empirical judgments” about the efficacy of particular gun regulations.
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.
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.”
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,
The McDonald Court’s response to Justice Breyer is quite telling for our purposes: The Court dismissed the suggestion that courts in Second Amendment cases would need to assess the strength of the government’s regulatory interests, or determine whether the regulation was appropriately tailored, or consider the alternatives. In other words, the Court declined to conduct the kinds of inquiries that would need to be conducted under a form of strict or intermediate scrutiny.
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,
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 heightened scrutiny tests are not actually balancing tests and thus were not precluded by the Supreme Court’s rejection of balancing tests. I disagree with the majority opinion’s attempt to distinguish Heller and McDonald in this way.
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,
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.
The heightened scrutiny approach largely took hold as a First Amendment principle — articulated most prominently by Justices Frankfurter and Harlan — to uphold laws that infringed free speech rights but were deemed to be justified by an overriding public purpose, often in cases involving speech by Communists. See Konigsberg v. State Bar of California,
As in their original formulations, the successor strict and intermediate scrutiny tests applied today remain quintessential balancing inquiries that focus ultimately on whether a particular government interest is sufficiently compelling or important to justify an infringement on the individual right in question. Cf. Denver Area Educ. Telecomms. Consortium, Inc. v. FCC,
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 1266. As one commentator has stated, however, “the search for the familiar may be leading courts and commentators astray: The central disagreement in Heller was a debate not about strict scrutiny and rational basis review but rather about categoricalism and balancing.” Blocher, Categoricalism and Balancing in First and Second Amendment Analysis,
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
Strict and intermediate scrutiny today are primarily used in substantive due process and equal protection cases, and for certain aspects of First Amendment free speech doctrine. Strict and intermediate scrutiny tests are not employed in the Court’s interpretation and application of many other individual rights provisions of the Constitution.
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,
Even in the First Amendment case law, which the majority opinion here looks to for guidance, the Court has not used strict or intermediate scrutiny when considering bans on categories of speech. In United States v. Stevens, the Court echoed Heller: “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document ‘prescribing limits, and declaring that those limits may be passed at pleasure.’ ” — U.S. -,
In short, it would hardly have been unusual or unthinkable for the Supreme Court to set forth a Second Amendment test based on text, history, and tradition— rather than a heightened scrutiny approach. (Indeed, in Heller, the Supreme
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 an intermediate scrutiny balancing test. The Supreme Court struck down D.C.’s handgun ban because handguns have not traditionally been banned and are in common use by law-abiding citizens, not because the ban failed to serve an important government interest and thus failed the intermediate scrutiny test. And the Court endorsed certain gun laws because they were rooted in history and tradition, not because they passed the intermediate scrutiny test.
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.”
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 First Amendment freedom of speech and the rights protected by substantive due process — the Court has generally employed strict scrutiny to assess direct infringements on the right. See, e.g., Citizens United v. FEC, — U.S. -,
Strict scrutiny requires the government to show that a law is narrowly tailored to serve a compelling state interest. See Citizens United,
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 can apply to an outright ban on possession of a class of weapons that have not traditionally been banned.
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 Second Amendment analysis — and about the absence of a role for judicial interest balancing or assessment of costs and benefits of gun regulations. Gun bans and gun regulations that are longstanding — or, put another way, sufficiently rooted in text, history, and tradition — are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right. Our role as a lower court is simply to apply the test announced by Heller to the challenged provisions of D.C.’s new gun laws.
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.
The vast majority of handguns today are semi-automatic.
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.”
More to the point for purposes of the Heller analysis, the Second Amendment as
The first commercially available semiautomatic 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 Hen-wood, 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 Hen-wood, 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.
By contrast, full automatics were developed for the battlefield and were never in widespread civilian use in the United States. Rifle-caliber machine guns (excluding the Gatling gun, which required hand cranking) first saw widespread use in the European colonial powers’ African conquests of the 1890s. See John Ellis, The Social History of the Machine Gun 79-107 (1986). Automatic, pistol-caliber machine guns were fielded by European militaries toward the end of World War I. The Thompson machine gun (commonly known as the “Tommy gun”) entered commercial sale in the United States in the mid-1920s but saw very limited civilian use outside of organized crime and law enforcement. See Lee Kennett & James LaVerne Anderson, The Gun in America 203-04 (1975). Within less than a decade, the Tommy gun and other automatic weapons had been subjected to comprehensive federal regulation. National Firearms Act, ch. 757, 48 Stat. 1236 (1934); see also 18 U.S.C. § 922(o).
Semi-automatic rifles remain in common use today, as even the majority opinion here acknowledges. See Maj. Op. at 1261 (“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 semiautomatic. 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-automatic rifles are quite common in the United States. See, e.g., Cabela’s, http://www.cabelas.com. Semi-automatic rifles are commonly used for self-defense in the home, hunting, target shoot
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.
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.”
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 Hellers 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
In attempting to distinguish away Hellers 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 1263. 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).
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.”
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 weapon” help make the case that semi-automatic rifles may be banned even though semi-automatic handguns are constitutionally protected.
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
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 arms.”
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 owning guns or using them in particular ways. Those laws can advance gun safety by ensuring that owners understand how to handle guns safely, particularly before guns are carried in public. For example, many jurisdictions that permit the carrying of concealed weapons have traditionally imposed licensing requirements on persons who wish to carry such weapons. Registration requirements, by contrast, require registration of individual guns and do not meaningfully serve the purpose of ensuring that owners know how to operate guns safely in the way certain licensing requirements can. For that reason, registration requirements are often seen as half-a-loaf measures aimed at deterring gun ownership. It is true that registration requirements also provide a hook to convict (and potentially flip) criminals who are suspected of having committed other illegal acts, but as the majority opinion recognizes, that is a “circular” and constitutionally unacceptable rationale for requiring registration with respect to a core enumerated constitutional right. Maj. Op. at 1258 n.*.
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 majority of states have not traditionally required registration of lawfully possessed guns. The majority opinion cites several state laws that have existed since the beginning of the 20th Century. Maj. Op. at 1253-54. But those state laws generally required record-keeping by gun sellers, not registration of all lawfully possessed guns by gun oumers. There certainly is no tradition in the United States of gun registration imposed on all guns. And laws regulating gun sellers provide no support for D.C.’s registration requirement, which compels every gun owner to register every gun he or she lawfully possesses.
Even if modern laws alone could satisfy Hellers 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,
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,
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.
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,
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 the United States; it is the most stringent such law in the Nation; and it is significantly more onerous than traditional licensing requirements or record-keeping requirements imposed only on gun sellers. Registration requirements of the kind enacted by D.C. thus do not satisfy the Supreme Court’s history- and tradition-based test.
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, — U.S. -,
Moreover, D.C.’s articulated basis for the registration requirement is that police officers, when approaching a house to execute a search or arrest warrant or take other investigative steps, will know wheth
In any event, the proper test to apply is Hellers 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 favor
D.C. believes that its law will help it fight violent crime. New 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,
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 Court and remand for proceedings consistent with this opinion.
. A semi-automatic gun "fires only one shot with each pull of the trigger” and "requires no manual manipulation by the operator to place another round in the chamber after each round is fired.” Staples v. United States,
. Plaintiffs also challenge D.C.’s ban on magazines of more than 10 rounds. I would remand that issue for further factual development in the District Court. See infra note 20.
. In that sense, Heller was similar in its overarching practical and real-world ramifications to recent Supreme Court decisions such as Brown v. Entertainment Merchants Ass’n, - U.S. -,
. The Court in Heller stated as follows:
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 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.
We also recognize another important limitation on the right to keep and carry arms.*1273 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."
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.”
. The Court's failure to employ strict or intermediate scrutiny appears to have been quite intentional and well-considered. Cf. Tr. of Oral Arg. at 44, Heller,
. It is not uncommon for courts to look to post-ratification history and tradition to inform the interpretation of a constitutional provision. For example, when interpreting the scope of the President's Article II power, the Court has relied on such history and tradition. See Dames & Moore v. Regan,
. The fact that fewer gun laws might pass muster under strict scrutiny than under a history- and tradition-based approach is no doubt why the plaintiffs in Heller and here have advocated strict scrutiny.
. The Heller majority stated that Justice Breyer was not proposing any of the traditional forms of scrutiny “explicitly at least."
. I recognize that some other courts of appeals have adopted approaches similar to the majority opinion’s approach here. Based on my reading of Heller and McDonald, I respectfully have come to a different conclusion.
. D.C.'s law bans semi-automatic rifles by listing specific guns that, as relevant here, share the characteristics of being a long gun and firing in a semi-automatic manner, and typically have features such as protruding pistol grips. D.C.Code § 7-2501.01(3A)(A)(i)(I). The statute also includes a catchall provision covering semi-automatic rifles that have certain additional features such as protruding pistol grips. Id. § 7-2501.01(3A)(A)(i)(IV).
. Under federal law, the “term 'machinegun' means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b).
. See Christopher S. Koper, Report to the Nat'l Inst, of Justice, U.S. Dep’t of Justice 81 (2004) (80% of handguns produced in 1993 were semi-automatic); Dep’t of Justice, Guns Used in Crime 3 (1995) ("Most new handguns are pistols rather than revolvers.”).
. Rifles are within a broader category referred to as "long guns.” Long guns, such as rifles and shotguns, are intended to be fired from the shoulder instead of with a single hand and are generally defined as being at least 16 to 18 inches long.
. Some would respond that the Second Amendment should not protect semi-automatic handguns either. But that option is not open to us after Heller. The question therefore is whether a sensible and principled constitutional line can be drawn between semiautomatic handguns and semi-automatic rifles. I think not. Such a line might be drawn out of a bare desire to restrict Heller as much as possible or to limit it to its facts, but that is not a sensible or principled constitutional line for a lower court to draw or a fair reading of the Heller opinion, in my view.
. In our decision in Parker, we similarly stated that handguns, shotguns, and rifles have traditionally been possessed by law-abiding citizens and are within the protection of the Second Amendment. Parker v. District of Columbia,
. In passing, the majority opinion here tosses out the possibility that Heller might protect handguns that are revolvers but not handguns that are semiautomatic pistols. See Maj. Op. at 1267-68. I find that an utterly implausible reading of Heller given the Court’s many blanket references to handguns and given that most handguns are semi-automatic.
. With respect to guns that the government has the constitutional authority to ban— namely, those classes of weapons that have traditionally been banned and are not in common use by law-abiding citizens — the government may of course impose registration as a lesser step. See United States v. Miller,
. The D.C. law at issue here requires far more than basic registration of guns. It mandates, among other things, that a gun owner submit every pistol for a “ballistics identification procedure,” D.C.Code § 7-2502.03(d); appear in person to register a gun, § 7-2502.04; register only one pistol every 30 days, § 7-2502.03(e); and renew each registration certificate every three years, § 7-2502.07a(a). It is undisputed in this case that D.C.'s myriad registration-related requirements are unique — and uniquely burdensome — among laws in the United States. These additional registration-related requirements find even less support in history and tradition than the basic registration requirement.
. Moreover, citizens may not be forced to register in order to exercise certain other constitutionally recognized fundamental rights, such as to publish a blog or have an abortion. See Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense,
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.
. The D.C. ban on magazines of more than 10 rounds requires analysis in the first instance by the District Court. In order to apply Heller's test to this prohibition, we must know whether magazines with more than 10 rounds have traditionally been banned and are not in common use. The parties here did not brief that question in much detail. Evidence presented to the District Court on the history and prevalence of magazines of more than 10 rounds would be helpful to the proper disposition of that issue under the Heller test. Therefore, I would remand to the District Court for analysis of that issue.