670 F.3d 1244 (D.C. Cir. 2011), 10-7036, Heller v. District of Columbia

Docket Nº:10-7036.
Citation:670 F.3d 1244
Opinion Judge:GINSBURG, Circuit Judge:
Party Name:Dick Anthony HELLER, et al., Appellants v. DISTRICT OF COLUMBIA, et al., Appellees.
Attorney:Stephen P. Halbrook argued the cause for appellants. With him on the briefs was Richard E. Gardiner. William J. Olson, Herbert W. Titus, and John S. Miles were on the brief for amici curiae Conservative Legal Defense and Education Fund, et al. in support of appellants. Todd S. Kim, Solicitor Gene...
Judge Panel:Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit Judges. Dissenting opinion filed by Circuit Judge KAVANAUGH. KAVANAUGH, Circuit Judge, dissenting:
Case Date:October 04, 2011
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1244

670 F.3d 1244 (D.C. Cir. 2011)

Dick Anthony HELLER, et al., Appellants

v.

DISTRICT OF COLUMBIA, et al., Appellees.

No. 10-7036.

United States Court of Appeals, District of Columbia Circuit.

October 4, 2011

Argued Nov. 15, 2010.

Page 1245

[Copyrighted Material Omitted]

Page 1246

Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-01289).

Stephen P. Halbrook argued the cause for appellants. With him on the briefs was Richard E. Gardiner.

William J. Olson, Herbert W. Titus, and John S. Miles were on the brief for amici curiae Conservative Legal Defense and Education Fund, et al. in support of appellants.

Todd S. Kim, Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Peter J. Nickles, Attorney General, Donna M. Murasky, Deputy Solicitor General, and Holly M. Johnson, Assistant Attorney General.

Matthew M. Shors was on the brief for amici curiae Professional Historians and

Page 1247

Law Professors, et al. in support of appellees.

Paul R.Q. Wolfson, A. Stephen Hut, Jr., Joshua M. Salzman, and Jonathan E. Lowy were on the brief for amici curiae The Brady Center to Prevent Gun Violence, et al. in support of appellees.

Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit Judges.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

OPINION

GINSBURG, Circuit Judge:

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, 554 U.S. 570, 128 S.Ct. 2783. In the wake of that decision, the District adopted the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17-372, which amended the Firearms Control Regulations Act of 1975, D.C. Law 1-85. The plaintiffs in the present case challenge, both facially and as applied to them, the provisions of the District's gun laws, new and old, requiring the registration of firearms and prohibiting both the registration of " assault weapons" and the possession of magazines with a capacity of more than ten rounds of ammunition. The plaintiffs argue those provisions (1) are not within the District's congressionally delegated legislative authority or, if they are, then they (2) violate the Second Amendment. The district court granted summary judgment for the District and the plaintiffs appealed. We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault Page 1248 weapons and of large-capacity magazines and some of the registration requirements. We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented. I. Background In Heller, the Supreme Court held the Second Amendment protects " an individual right to keep and bear arms," 554 U.S. at 595, 128 S.Ct. 2783, but not a right " to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," id. at 626, 128 S.Ct. 2783. More specifically, the Court held unconstitutional the District's " ban on handgun possession in the home" as well as its " prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense," id. at 635, 128 S.Ct. 2783, noting " the inherent right of self-defense [is] central to the Second Amendment right," id. at 628, 128 S.Ct. 2783. Therefore, unless the plaintiff was " disqualified from the exercise of Second Amendment rights" for some reason, such as a felony conviction, the District had to permit him to register his handgun. Id. at 635, 128 S.Ct. 2783. Shortly after the Supreme Court issued its decision in Heller, the D.C. Council passed emergency legislation in an effort to conform the District's laws to the Supreme Court's holding while it considered permanent legislation. The Council's Committee on Public Safety and the Judiciary then held three public hearings on the subject. In December 2008, upon the Committee's recommendation, the full Council passed the FRA. 56 D.C. Reg. 3438 (May 1, 2009). The plaintiffs challenge a host of provisions of the new scheme for regulating firearms.[*] First they object to the general requirement that owners register their firearms, D.C.Code § 7-2502.01(a). In particular, the plaintiffs challenge the following requirements that apply each time a person applies to the Metropolitan Police Department (MPD) for a registration certificate. Each applicant must:

• 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 Page 1249 registering the weapon itself.[*] Specifically, the applicant must:

• Have vision qualifying one for a driver's license. § 7-2502.03(a)(11).

• Demonstrate knowledge of the District's laws pertaining to firearms " and, in particular, the safe and responsible use, handling, and storage of the same." § 7-2502.03(a)(10).

• Submit to being fingerprinted and photographed. § 7-2502.04; D.C. Mun. Regs. tit. 24, § 2312.1-2.

• Undergo a background check every six years to confirm his continuing compliance with the registration requirements in § 7-2502.03(a). § 7-2502.07a(d).

• Attend a firearms training or safety course providing " a total of at least one hour of firing training at a firing range and a total of at least 4 hours of classroom instruction." § 7-2502.03(a)(13)(A).

Second, the plaintiffs challenge the District's prohibitions of " assault weapon[s]," 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 semi-automatic 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. [*] Page 1250 Before the district court, the plaintiffs argued all D.C. gun laws are required by the Act of June 30, 1906, ch. 3932, 34 Stat. 808, to be " usual and reasonable," but contended the aforementioned provisions meet neither criterion or, if they do, then they violate the plaintiffs' Second Amendment rights. The district court held the challenged laws do not exceed the District's authority under local law because they are usual and reasonable police regulations within the meaning of the 1906 Act. 698 F.Supp.2d 179, 196-97 (2010). Then, addressing the constitutional challenge, the court determined " the registration requirements plainly implicate the core Second Amendment right" but, applying intermediate scrutiny, upheld the registration scheme in all respects. Id. at 190-93. The court also upheld the ban on...

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