Heller v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2015 Decided September 18, 2015

No. 14-7071

DICK ANTHONY HELLER, ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

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 Dan M. Peterson.

C.D. Michel, Anthony Pisciotti, and Jeffrey Malsch were

on the brief for amici curiae CRPA Foundation, Pink Pistols,

Second Amendment Sisters, and Women Against Gun

Control in support of appellants.

William J. Olson, Herbert W. Titus, Jeremiah L. Morgan,

and John S. Miles were on the brief for amici curiae Gun

Owners of America, Inc., et al. in support of appellants.

2

John Parker Sweeney and James W. Porter III were on

the brief for amicus curiae National Rifle Association, Inc. in

support of appellants.

Loren L. AliKhan, Deputy Solicitor General, Office of the

Attorney General for the District of Columbia, argued the

cause for appellees. With her on the brief were Eugene A.

Adams, Interim Attorney General at the time the brief was

filed, Todd S. Kim, Solicitor General, and Holly M. Johnson,

Assistant Attorney General.

Douglas F. Gansler, Attorney General at the time the

brief was filed, Office of the Attorney General for the State of

Maryland, and Joshua N. Auerbach, Assistant Attorney

General, Tom Miller, Attorney General, Office of the

Attorney General for the State of Iowa, Martha Coakley,

Attorney General at the time the brief was filed, Office of the

Attorney General for the Commonwealth of Massachusetts,

Eric T. Schneiderman, Attorney General, Office of the

Attorney General for the State of New York, Kamala Harris,

Attorney General, Office of the Attorney General for the State

of California, George Jepsen, Attorney General, Office of the

Attorney General for the State of Connecticut, Russell A.

Suzuki, Attorney General at the time the brief was filed,

Office of the Attorney General for the State of Hawaii, and

Lisa Madigan, Attorney General, Office of the Attorney

General for the State of Illinois were on the brief as amici

curiae States of Maryland, et al. in support of appellees.

Walter A. Smith, Jr., Jonathan L. Diesenhaus, appointed

by the court, and Karla J. Aghedo were on the brief as amici

curiae DC Appleseed Center for Law & Justice, et al. in

support of appellees.

3

Howard R. Rubin and Daniel Lipton were on the brief as

amici curiae The Major City Chiefs of Police Association,

The United States Conference of Mayors, and International

Municipal Lawyers Association in support of appellees.

Paul R.Q. Wolfson, Francesco Valentini, and Jonathan E.

Lowy were on the brief for amici curiae Brady Center to

Prevent Gun Violence, et al. in support of appellees.

Before: HENDERSON and MILLETT, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

Opinion concurring in part and dissenting in part filed by

Circuit Judge HENDERSON.

GINSBURG, Senior Circuit Judge: At issue in this suit is

the constitutionality of certain gun laws enacted by the

District of Columbia. The district court determined as a

matter of law that the District’s efforts “to combat gun

violence and promote public safety” by means of its

registration laws were “constitutionally permissible.” Heller

v. District of Columbia, 45 F. Supp. 3d 35, 38 (D.D.C. 2014).

Before this court, Dick Anthony Heller and his co-appellants

challenge both the district court’s admission of, and its

reliance upon, certain expert reports proffered by the District

and the final order denying Heller’s and granting the

District’s motion for summary judgment.

We hold the district court’s admission of the challenged

expert reports was not an abuse of discretion. We affirm in

part and reverse in part the district court’s judgment in favor

of the District.

4

I. Background

In District of Columbia v. Heller (Heller I) the Supreme

Court held the District of Columbia’s “prohibition of

handguns held and used for self-defense in the home” was

unconstitutional. 554 U.S. 570, 636 (2008). Immediately

thereafter, the D.C. City Council revised the District’s gun

laws by enacting the Firearms Registration Amendment Act

of 2008 (FRA). D.C. Law 17-372.

The FRA created a “new scheme for regulating firearms.”

Heller v. District of Columbia, 670 F.3d 1244, 1248 (D.C.

Cir. 2011) (Heller II). With limited exceptions, the FRA

required the registration of all firearms in the District. D.C.

Code § 7-2502.01. The law also imposed various conditions

upon the registration of a firearm and limited the persons

eligible to register a firearm by excluding, for example,

individuals who within the prior five years had been

convicted of certain drug or violent crimes or had a severe

mental health problem, and individuals under the age of 18.

Id. § 7-2502.03-.07. In addition, the FRA required the gun

owner to renew the registration of his firearm(s) every three

years, id. § 7-2502.07a, and prohibited registration — and

hence possession — of certain firearms, such as short-

barreled rifles and assault weapons. Id. § 7-2502.02.

In July 2008 Heller filed suit challenging the District’s

new registration scheme as inconsistent with the Second

Amendment to the Constitution of the United States. The

district court granted summary judgment to the District and

Heller appealed.

On that appeal, we upheld the constitutionality of the

District’s “basic registration requirement,” insofar as that

requirement pertained to handguns. Heller II, 670 F.3d at

5

1254-55. We also upheld the portion of the FRA prohibiting

registration, and therefore possession, of assault weapons and

magazines with a capacity in excess of 10 rounds. Id. at

1247-48, 1264.

We reserved judgment as to the constitutionality of the

District’s basic registration requirement for long guns, the

conditions under which a registration certificate would be

issued, and the duration for which such a certificate would be

valid. Id. at 1255, 1258-60. We held that both the basic

registration requirement for long guns, if not de minimis, and

the conditions for registration were subject to intermediate

scrutiny, and that the record as it then stood was not sufficient

for us to evaluate whether those laws were narrowly tailored

to serve an important governmental interest. Id. at 1258. We

therefore remanded the case to the district court for further

evidentiary proceedings. Id. at 1260.

Subsequently, the D.C. Council enacted the Firearms

Amendment Act of 2012, D.C. Law 19-170, which repealed

certain of the conditions for registration, such as the

requirement that a pistol be submitted for ballistic

identification as part of the registration process, and reduced

the burden upon registrants imposed by other provisions.

Heller then filed an amended complaint to take account of

these legislative changes.

During discovery, Heller and the District offered the

opinion testimony of, respectively, one and four expert

witnesses. Heller v. District of Columbia, 45 F. Supp. 3d at

40 (Heller III). Largely upon the basis of their testimony, the

district court entered summary judgment for the District.

On this appeal, Heller argues the district court erred by

admitting the opinion testimony of three of the District’s four

6

expert witnesses. In addition, Heller argues the district court

erred in upholding as constitutional: (1) the basic registration

requirement as it pertains to long guns, D.C. Code § 7-

2502.01(a); (2) the requirement that one appear in person to

register a firearm and be fingerprinted and photographed, id.

§ 7-2502.04; (3) the requirement that the registrant bring with

him the firearm to be registered, which requirement the

Metropolitan Police Department (MPD) may or may not

invoke as to a particular individual, id. § 7-2502.04(c); (4) the

expiration of the registration after three years, id. § 7-

2502.07a; (5) the imposition of certain fees for registration,

id. § 7-2502.05(b); (6) the requirements that a registrant

complete a firearms safety and training course or provide

evidence of another form of training and that the registrant

pass a test to demonstrate his knowledge of the District’s

firearms laws, id. §§ 7-2502.03(a)(13), 7-2502.03(a)(10); and

(7) the prohibition on registration of more than one pistol per

person in any 30-day period, id. § 7-2502.03(e).

II. Analysis

We first address the district court’s admission of the

challenged expert reports and related testimony. We then turn

to Heller’s constitutional challenges.

A. The expert reports and testimony

Heller moved to strike three of the four expert reports

offered by the District during discovery, viz., those of Cathy

Lanier, the Chief of the MPD, and of Mark Jones and Joseph

Vince, Jr., both former agents of the Bureau of Alcohol,

Tobacco, Firearms and Explosives (ATF), but not that of

Daniel Webster, Director of the Johns Hopkins Center for

Gun Policy. Heller argued the expert reports “fall short of the

disclosure requirements under FED. R. CIV. P. 26(a) and that

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their proposed testimony [was] too unreliable to be admitted

under FED. R. EVID. 702.” The district court denied Heller’s

motion.

On appeal, Heller renews both arguments. We review the

district court’s admission of expert testimony for abuse of

discretion, whether that admission is challenged under the

rules of evidence or under the rules of procedure. United

States v. Day, 524 F.3d 1361, 1367 (D.C. Cir. 2008). We

conclude that the district court did not abuse its discretion in

admitting the challenged testimony.

1. Federal Rule of Civil Procedure 26

Federal Rule of Civil Procedure 26(a)(2)(B) provides that

an expert witness must submit a written report containing,

among other things, “a complete statement of all opinions the

witness will express and the basis and reasons for them,” as

well as “the facts or data considered by the witness in forming

them.” A party who fails to comply with Rule 26(a)(2)(B)

generally may not use that witness “to supply evidence on a

motion … unless the failure was substantially justified or is

harmless.” FED. R. CIV. P. 37(c)(1).

The purpose of the rule is to avoid “unfair surprise to the

opposing party.” Muldrow ex rel. Estate of Muldrow v. Re-

Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007) (citation and

internal quotation marks omitted). Admitting a report with an

omission that does not cause “unfair surprise” we deem

harmless. Id.

As the district court noted, each of the challenged expert

reports contained an explicit statement as to the basis for that

witness’s opinion, to wit, that his or her report was based “on

my experience, my review of numerous studies and books, the

8

District of Columbia’s firearms laws and regulations, and

discovery materials from this case made available to me.” In

addition each report recounts in detail the expert’s relevant

experience. The district court stated:

Plaintiffs have had an opportunity to depose these

experts and examine more fully the bases for their

opinions …. Where Defendants have provided

adequate notice of the opinions they expect these

experts to offer and Plaintiffs have had and continue to

have opportunities to challenge these conclusions, the

goals of Rule 26(a) are satisfied, and there is no basis

for striking the reports and preventing these experts

from testifying.

Heller v. District of Columbia, 952 F. Supp. 2d 133, 139

(D.D.C. 2013).

The district court did not abuse its discretion in so

holding. The experts’ reports adequately established the

bases for the opinions they expressed in the reports and in

their declarations. Heller had the opportunity to probe the

bases for the witnesses’ opinions when he deposed them.

2. Federal Rule of Evidence 702

Rule 702 provides:

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in

the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of

9

fact to understand the evidence or to determine

a fact in issue;

(b) the testimony is based on sufficient facts or

data;

(c) the testimony is the product of reliable

principles and methods; and

(d) the expert has reliably applied the principles

and methods to the facts of the case.

FED. R. EVID. 702.

In Daubert v. Merrell Dow Pharmaceuticals, the

Supreme Court held Rule 702 requires courts to ensure that

expert testimony is “not only relevant, but reliable.” 509 U.S.

579, 589 (1993); see also Kumho Tire Co. v. Carmichael, 526

U.S. 137, 149 (1999) (noting that “Daubert’s general

principles apply” not just to scientific testimony but to all “the

expert matters described in Rule 702”). Therefore, courts are

obligated to “determine whether [expert] testimony has a

reliable basis in the knowledge and experience of [the

relevant] discipline.” Kumho Tire, 526 U.S. at 149 (second

alteration in original) (citation and internal quotation marks

omitted). Nonetheless, the Supreme Court has said “the trial

judge must have considerable leeway in deciding in a

particular case how to go about determining whether

particular expert testimony is reliable.” Id. at 152.

In this case the district court reasoned:

[I]t appears here that the opinion evidence is

connected to the existing facts – the registration

requirements and the state of gun violence in the

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District – by a methodology precisely contemplated by

Daubert and Rule 702: each expert’s professional

judgment obtained through long experience in the

field. Each of the reports specifically identifies this

experience as being the basis for the opinions

proffered, and each provides some justification – in

the form of information gained from the expert’s

relevant experience – for those opinions.

Heller v. District of Columbia, 952 F. Supp. 2d at 142.

As the district court rightly suggested, each of the

challenged experts has decades of relevant experience. Still,

the Advisory Committee notes to Rule 702 provide that a

witness who is “relying solely or primarily on experience …

must explain how that experience leads to the conclusion

reached, why that experience is a sufficient basis for the

opinion, and how that experience is reliably applied to the

facts.” In this case the experts’ explanation of the connection

between their experience and their conclusions was

sometimes fatally sparse. Likewise, the district court failed

meaningfully to evaluate the factual bases for the experts’

opinions, noting only that they were supported by “some

justification — in the form of information gained from the

expert’s relevant experience.”

As this court has noted, however, the “admission of

[expert] testimony does not constitute an abuse of discretion

merely because the factual bases for an expert’s opinion are

weak.” Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549,

567 (D.C. Cir. 1993). Nor is this a case in which the experts’

reports consisted of “subjective belief or unsupported

speculation,” which the rules of evidence preclude. Id. at 570

(citation and internal quotation marks omitted).

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In addition to invoking his or her generalized

“experience,” each expert claimed to have relied upon

specific news stories, academic studies, or other research in

forming an opinion. Moreover, each of the three experts was

in a position to state whether the cited materials comported

with his or her personal experience.

In light of the challenged experts’ substantial relevant

experience and the sources they cited in support of their

conclusions — the above-noted stories, studies, and research

— we hold the district court did not abuse its discretion in

admitting the challenged expert reports and the subsequent

expert declarations. Rather, as the district court noted,

Heller’s “concerns about the conclusions [to which] these

experts’ experience led them … go to the weight of the

testimony,” not its admissibility. Heller v. District of

Columbia, 952 F. Supp. 2d at 142.

B. The constitutional challenges

We review the district court’s summary judgment

determination de novo, considering the evidence in the light

most favorable to the non-moving party, i.e., Heller. See

Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir.

2013).

In Heller II, we adopted a two-step approach to

determining the constitutionality of the District’s gun

registration laws: “We ask first whether a particular provision

impinges upon a right protected by the Second Amendment; if

it does, then we go on to determine whether the provision

passes muster under the appropriate level of constitutional

scrutiny.” 670 F.3d at 1252. We determined that level was

intermediate scrutiny. Id. at 1252-53.

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For a challenged provision to survive intermediate

scrutiny, the District has to show, first, that it “promotes a

substantial governmental interest that would be achieved less

effectively absent the regulation,” and second, that “the means

chosen are not substantially broader than necessary to achieve

that interest.” Id. at 1258 (quoting Ward v. Rock Against

Racism, 491 U.S. 781, 782-83 (1989)). To meet the first

requirement, the District must demonstrate that the harms to

be prevented by the regulation “are real, not merely

conjectural, and that the regulation will in fact alleviate these

harms in a direct and material way.” Turner Broad. Sys., Inc.

v. FCC, 512 U.S. 622, 662-64 (1994) (Turner I). We do not,

however, review de novo the District’s evidence of the harm

to be prevented and the likely efficacy of the regulation in

preventing that harm. See id. at 666. Rather, it is our remit to

determine only whether the District “has drawn reasonable

inferences based on substantial evidence.” Id. If it has done

so, and if the means chosen are not overbroad, then “summary

judgment … is appropriate regardless of whether the evidence

is in conflict.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,

185, 195-96, 211 (1997) (Turner II); see also Heller II, 670

F.3d at 1263 (upholding the District’s ban on assault weapons

on the basis that “the evidence demonstrates a ban on assault

weapons is likely to promote the Government’s interest in

crime control”).

1. Impingement

In Heller II we held the basic registration requirement as

applied to handguns did not impinge upon the Second

Amendment and was therefore constitutional. 670 F.3d at

1254-55 (“[T]he basic requirement to register a handgun is

longstanding in American law …. Therefore, we presume the

District’s basic registration requirement including the

submission of certain information does not impinge upon the

13

right protected by the Second Amendment. Further, we find

no basis in either the historical record or the record of this

case to rebut that presumption.”) (citations omitted); see also

Heller I, 554 U.S. at 626-27 & n.26 (“longstanding” firearm

regulations are “presumptively lawful”). We left open the

question whether requiring the registration of long guns

impinges upon the Second Amendment. 670 F.3d at 1255

n.**; see also D.C. Code § 7-2502.01(a). We now hold it

does not.

Requiring the registration of handguns is legally different

from requiring the registration of long guns only in that “basic

registration of handguns is deeply enough rooted in our

history to support the presumption that [it] is constitutional,”

Heller II, 670 F.3d at 1253; the registration requirement for

long guns lacks that historical pedigree. Id. at 1255.

Even absent the presumption that attends the pedigree,

however, the basic registration requirement as applied to hand

guns falls into the category of requirements that are “self-

evidently de minimis, for they are similar to other common

registration or licensing schemes, such as those for voting or

for driving a car, that cannot reasonably be considered

onerous.” Id. at 1254-55. On Heller’s previous appeal, we

were unable to determine whether requiring the registration of

long guns is similarly a de minimis burden because the record

was “devoid of information concerning the application of

registration requirements to long guns.” Id. at 1255 n.**. We

therefore allowed Heller, during the discovery proceedings on

remand, the opportunity to introduce evidence that might

differentiate the registration requirement for long guns from

other registration requirements that undoubtedly entail a de

minimis burden upon a constitutional right. As the district

court subsequently determined, however, Heller offered no

evidence distinguishing the basic registration requirement as

14

applied to long guns. See Heller III, 45 F. Supp. 3d at 51.

Indeed, he did not even argue the point. 1

Because the burden of the basic registration requirement

as applied to long guns is de minimis, it does not implicate the

second amendment right. Heller II, 670 F.3d at 1255; see

also Justice v. Town of Cicero, 577 F.3d 768, 773-75 (7th Cir.

2009) (holding local ordinance “requiring the registration of

all firearms” is consistent with the Supreme Court’s ruling in

Heller I). It is therefore constitutional.

1

In his reply brief in this court, Heller argued for the first time that

the registration requirement impinges upon the Second Amendment

right to bear arms because a person can “go to prison and receive a

lifetime ban on possession of firearms for failure to register or

reregister.” See D.C. Code §§ 7-2502.03, 7-2507.06, 7-2502.08

(providing generally violation of the registration requirements may

result in fines, imprisonment, and ineligibility to register weapons

in the future). This assertion, however, is too little, too late. It

comes too late because we do not ordinarily notice an argument that

first appears in a reply brief. See Gunpowder Riverkeeper v. FERC,

No. 14-1062, 2015 WL 4450952, at *5 (D.C. Cir. July 21, 2015)

(“[A]rguments not clearly raised in a party’s opening brief are

generally considered to be forfeit”). In any event, it is too little

because in Heller II we instanced other licensing schemes we think

impose a de minimis burden notwithstanding that failure to comply

with those schemes may result in criminal penalties; so it is with

the basic registration requirement for long guns. See Heller II, 670

F.3d at 1254-55 (describing licensing schemes “such as [that] for

… driving a car” as “self-evidently de minimis”); D.C. Code § 50-

1403.01(e) (providing that an individual found guilty of “operating

a motor vehicle in the District” while that person’s license is

“revoked or suspended” may be fined or imprisoned for up to one

year).

15

The additional registration requirements, however, cannot

be said to be de minimis. In Heller II, we held the additional

requirements, as they then stood, “affect[ed] the Second

Amendment right because they [we]re not de minimis” —

that is, they “ma[d]e it considerably more difficult for a

person lawfully to acquire and keep a firearm … for the

purpose of self-defense in the home.” Id. at 1255. The

subsequent repeal of some of those requirements and the

amendment of others somewhat reduced the burden imposed

upon District residents’ exercise of their Second Amendment

rights. The District does not go so far as to argue, however,

that the amended requirements are de minimis. Those

requirements are therefore subject to intermediate scrutiny.

2. Intermediate scrutiny

We previously identified two substantial governmental

interests served by the registration requirements enacted by

the District: (1) protecting police officers by enabling them to

determine, in advance, whether guns may be present at a

location to which they are called and (2) aiding in crime

control. Heller II, 670 F.3d at 1258. On remand, the District

recharacterized the second interest as a broader interest in

“promoting public safety.” Heller III, 45 F. Supp. 3d at 49.

On appeal, the District identifies more particularly its interest

in “protecting police officers” and reiterates its interest in

“promoting public safety” generally.

Heller does not dispute that these are substantial

governmental interests. Rather, he challenges the closeness of

the fit between the asserted interests and the various

registration requirements. We agree with Heller that the

District has not offered substantial evidence from which one

could draw a reasonable conclusion that the challenged

requirements will protect police officers; but we think the

16

District has pointed to substantial evidence that some of the

requirements — but not others — will promote public safety.

a. Police protection

Heller argues the registration requirements do not

advance the District’s interest in protecting the police because

MPD officers very rarely check the registration records in

responding to a call, conducting an investigation, or executing

a search warrant. The District responds that although the

“MPD does not routinely check registration records prior to

responding to a call for service … such a check is a tool

available for use in appropriate circumstances.” It is

undisputed that such checks have taken place, albeit rarely.

Therefore, the question remains whether that “tool”

promotes the District’s asserted interest in police protection.

Discovery subsequent to our decision in Heller II indicates it

does not.

According to the deposition testimony of an MPD officer,

District police “are trained to treat situations where there

might be a crime in progress or domestic dispute or some

other situation possibly involving violence as always having a

potential to have a dangerous weapon present.” Further, one

of the District’s expert witnesses stated that if the registration

system indicated no weapon was present at an address, then

officers “would continue to exercise caution.” The best the

District’s expert could offer was that positive confirmation of

a gun might raise officers’ “caution level … that much

higher.”

The testimony of the District’s own witnesses, therefore,

indicates that the records established via the registration

requirements, when queried at all, have little to no effect upon

17

the conduct or safety of police officers. In light of this

additional evidence, we agree with the statement of our

colleague in Heller II that the asserted interest in police

protection “leaves far too many false negatives to satisfy …

intermediate scrutiny.” 670 F.3d at 1295 (Kavanaugh, J.,

dissenting).

b. Public safety

Drawing directly upon the Report of the Judiciary

Committee of the D.C. Council with respect to the Firearms

Amendment Act of 2012, the District claims the various

registration requirements advance its interest in public safety

by “distinguishing criminals from law-abiding citizens,

enabling police to arrest criminals immediately, facilitating

enforcement against prohibited persons obtaining or

continuing to possess firearms, reducing gun trafficking, and

increasing the difficulty for criminals to acquire guns.” We

next address whether the District has, with regard to each

challenged registration provision, offered substantial evidence

from which it could reasonably have concluded the provision

will mitigate various threats to public safety “in a direct and

material way,” Turner I, 512 U.S. at 664, whether in one of

the ways anticipated by the D.C. Council or otherwise.

i. In-person appearance, fingerprinting, and

photographing, D.C. Code § 7-2502.04

The District has presented substantial evidence from

which it could conclude that fingerprinting and photographing

each person registering a gun promotes public safety by

facilitating identification of a gun’s owner, both at the time of

registration and upon any subsequent police check of the

gun’s registration. The requirement that registrants appear in

18

person is necessary in order for a photograph and fingerprints

to be taken.

First, the fingerprinting requirement: The Report of the

Committee on the Judiciary stated that “[t]he initial

fingerprinting requirement is fundamental for the [MPD] to

fulfill its public safety obligations in registering firearms —

being able to screen the registrant to ensure that he or she is

not disqualified from possessing a firearm.” In support of this

assertion, the District points to the testimony of Chief Lanier,

who said “[u]sing biometrics [i.e., fingerprints] to positively

identify an individual is far more effective than relying simply

on a name and social security number.” Chief Lanier

reiterates this conclusion in her expert declaration, and it is

echoed in Webster’s expert declaration.

In addition, the District points to evidence suggesting

background checks using fingerprints are more reliable than

background checks conducted without fingerprints, which are

more susceptible to fraud. Specifically, the District points to

an investigation conducted by the U.S. Government

Accountability Office, in which five “agents acting in an

undercover capacity used … counterfeit driver’s licenses in

attempts to purchase firearms from gun stores and pawnshops

that were licensed by the federal government to sell firearms.”

GAO-01-427, FIREARMS PURCHASED FROM FEDERAL

FIREARM LICENSEES USING BOGUS IDENTIFICATION 2 (2001).

Those attempts were, without exception, successful. Id. at 2-

3. The report concluded that federal background checks

conducted by the firearm dealers “cannot ensure that the

prospective purchaser is not a felon or other prohibited person

19

whose receipt and possession of a firearm would be

unlawful.” Id. at 2. 2

Heller argues the District has not experienced a problem

with fraud in the registration of firearms. He also implies the

problem is unlikely to arise, given the increased difficulty of

manufacturing fraudulent identification documents today, as

compared to 2001, when the GAO concluded its investigation.

Even if this is true, however, a prophylactic disclosure

measure such as the one at issue here survives intermediate

scrutiny if the deterrent value of the measure will materially

further an important governmental interest. See Barry v. City

of New York, 712 F.2d 1554, 1559-61 (2d Cir. 1983)

(upholding under intermediate scrutiny a law requiring

financial disclosures by certain publicly employed individuals

in the face of a right-to-privacy challenge on the basis that it

could “help deter corruption,” despite a “virtually corruption-

free history” (citation and internal quotation marks omitted)).

The GAO study indicates the fingerprinting requirement

would, indeed, help to deter and detect fraud and thereby

prevent disqualified individuals from registering firearms.

Regarding the requirement of a photograph: The

Committee on the Judiciary emphasized “the importance of a

registrant being able to present a registration certificate with a

photograph, so police can quickly identify whether and to

2

The states in which the GAO conducted its study had adopted the

National Instant Criminal Background Check System (NICS), see

18 U.S.C. § 922(t), under which, then as now, the following

information is required of each individual who undergoes a NICS

check: (1) name, (2) sex, (3) race, (4) date of birth, and (5) state of

residence. 28 C.F.R. § 25.7. A dealer may, in addition, report the

purchaser’s Social Security or other identifying number and

physical description. Id.

20

whom the firearm has been legally registered.” The

Committee pointed to the testimony of Chief Lanier, who

asserted that “a certificate with a photo helps to quickly and

safely communicate” the fact of registration to police officers,

which, “in turn, helps to keep both the officer and the

registrant safe.” Heller, while maintaining that photographing

a registrant will not deter fraud, does not contest that

photographic confirmation of a registrant’s identity would be

beneficial to public safety when the police encounter an

armed registrant. See D.C. Code § 7-2502.08(c) (“Each

registrant shall have in the registrant’s possession, whenever

in possession of a firearm, the registration certificate, or exact

photocopy thereof, for such firearm, and exhibit the same

upon the demand of a member of the [MPD], or other law

enforcement officer”).

For the foregoing reasons, we believe the District has

adduced substantial evidence from which it reasonably could

conclude that fingerprinting and photographing registrants

will directly and materially advance public safety by

preventing at least some ineligible individuals from obtaining

weapons and, more important, by facilitating identification of

the owner of a registered firearm during any subsequent

encounter with the police. Those requirements are therefore

not unconstitutional. The additional requirement that

registrants appear in person to be photographed and

fingerprinted is but a corollary necessary to implement those

requirements. See Heller II, 670 F.3d at 1249 n.* (noting that

administrative provisions “incidental to the underlying

regime” are “lawful insofar as the underlying regime is

lawful”).

21

ii. Bringing the firearm, D.C. Code § 7-

2502.04(c)

The District argues that the “requirement that the firearm

be made available for inspection allows MPD to verify that

the application information is correct and that the firearm has

not been altered or switched with another firearm.” The

District, however, has offered no evidence — let alone

substantial evidence — from which it can be inferred that

verification will promote public safety. The district court

acknowledged as much when it noted that not one of the

District’s four experts “specifically addresse[d] the

requirement that registrants bring the gun to be registered

with them.” Heller III, 45 F. Supp. 3d at 59. The district

court nonetheless deemed it a “common-sense inference” that

“if in-person appearance is necessary to verify the identity of

the registrant, then physically bringing the gun is similarly

necessary to verify the character of the registered weapon.”

Id. Yet common sense suggests a person would not go to the

trouble of obtaining a registration certificate for a weapon

other than a weapon in his possession. On the contrary,

common sense suggests that bringing firearms to the MPD

would more likely be a threat to public safety; as Heller

maintains, there is a “risk that the gun may be stolen en route

or that the [would-be registrant] may be arrested or even shot

by a police officer seeing a ‘man with a gun’ (or a gun case).”

iii. Re-registration, D.C. Code § 7-2502.07a

The District has offered three justifications for the

requirement that a gun owner re-register his firearm every

three years. None is supported by substantial evidence from

which the District could reasonably have concluded that

requiring re-registration would advance an important

governmental interest.

22

First, the District’s experts argued that re-registration

“will improve public safety by making sure that, in the time

since [the gun owner] first registered, [he has] not fallen into a

category of persons prohibited from owning a firearm.”

Heller III, 45 F. Supp. 3d at 67-68. As Heller rightly points

out, however, “District officials and experts conceded [that]

background checks could be conducted at any time without

causing the registrations to expire.” The re-registration

requirement cannot survive intermediate scrutiny on the

(dubious) basis that it will make this task easier. Cf.

McCullen v. Coakley, 134 S. Ct. 2518, 2540 (2014) (“To meet

the requirement of narrow tailoring, the government must

demonstrate that alternative measures that burden

substantially less speech would fail to achieve the

government’s interests, not simply that the chosen route is

easier”).

Second, the District argues triennial re-registration will

help to maintain the accuracy of the registration database.

This seems self-evidently true, but it is far from an adequate

reason for burdening every gun owner when there is already a

requirement that gun owners report relevant changes in their

information, such as a new address. D.C. Code § 7-2502.08

(requiring such reporting). To the extent that a gun owner’s

death or disposal of a registered gun is a fact of which the

District should be aware, the District’s registration

requirements as applied to any new owner within the District

should satisfy that interest.

Third, the District argues that it has “an interest in its

residents verifying the whereabouts of their firearms” in order

“to determine when firearms have been lost or stolen.”

District law, however, separately requires a gun owner to

report the loss or theft of a weapon “immediately upon

23

discovery” of the loss or theft, and imposes a monetary

penalty for failure to do so. Id. § 7-2502.08(a)(1). In

contrast, the re-registration provision imposes no penalty for

failure to re-register except the revocation of one’s

registration certificate, but a person whose weapon has been

lost or stolen no longer has need of a certificate. Although the

District fails to make the argument express in its brief, the

report of its Committee on the Judiciary, on which the brief

relies in general, asserted that the re-registration provision

may complement the loss-reporting provision because it

“likely causes the owner to look for his or her gun if it hasn’t

been used” for a while, but that is mere speculation. The re-

registration process requires only that a gun owner affirm that

he still has the registered weapon; it does not require the gun

owner physically to examine the weapon. See id. § 7-

2502.07a. Therefore, there is no reason to believe that an

owner who does not suspect his gun has been lost or stolen is

likely to look for the registered weapon prior to re-registering

it.

iv. Fees, D.C. Code § 7-2502.05

Heller argues “[t]he District may not condition exercise

of a fundamental constitutional right on the creation of a

burdensome registration regime and then justify imposing

‘administrative costs’ to pay for it.” He does not argue the

registration fees of $13 per firearm and $35 for fingerprinting,

D.C. Mun. Regs. tit. 24, § 2320.3(c)(3), are unreasonably

high.

As we already said in Heller II, “administrative …

provisions incidental to the underlying regime” — which

include reasonable fees associated with registration — are

lawful insofar as the underlying regime is lawful. 670 F.3d at

1249 n.*; see also Cox v. New Hampshire, 312 U.S. 569, 577

24

(1941) (holding, in response to a First Amendment challenge

to a parade licensing statute, that a government may impose a

fee “to meet the expense incident to the administration of the

act and to the maintenance of public order in the matter

licensed”); Kwong v. Bloomberg, 723 F.3d 160, 165–69 (2d

Cir. 2013) (holding constitutional a $340 fee for a license to

possess a handgun in one’s home). As such, reasonable fees

associated with the constitutional requirements of registration

and fingerprinting are also constitutional.

v. Education requirements, D.C. Code §§ 7-

2502.03(a)(10), 7-2502.03(a)(13)

The District has presented substantial evidence from

which it could conclude that training in the safe use of

firearms promotes public safety by reducing accidents

involving firearms, but has presented no evidence from which

it could conclude that passing a test of knowledge about local

gun laws does so. The safety training, therefore, is

constitutional; the test of legal knowledge is not.

Regarding the one-hour firearms safety course, available

online or at the MPD, FIREARMS SAFETY TRAINING COURSE,

https://dcfst.mpdconline.com/ (last visited Aug. 21, 2015), the

District’s experts each testified to their belief in the value of

training to prevent accidents. Heller responds that “the

District’s experts cite no studies showing that mandatory

training or testing in gun safety reduce unintentional

discharges.” The District, however, need not present such

evidence. Rather, the Supreme Court has “permitted litigants

to justify … restrictions … based … on history, consensus,

and simple common sense” when the three are conjoined. Cf.

Lorillard Tobacco Co., 533 U.S. 525, 555 (2001) (internal

quotation marks omitted). In this case, the District has

offered anecdotal evidence showing the adoption of training

25

requirements “in most every law enforcement profession that

requires the carrying of a firearm” and a professional

consensus in favor of safety training. 3 Though its experts

have characterized the training requirement as a matter of

“common sense,” this is not a case in which the District has

asked the court to rule upon the basis of “common sense”

alone.

None of the District’s experts, however, offers any reason

to believe that knowledge of the District’s gun laws will

promote public safety. Indeed, the closest the District’s

experts came to addressing the subject was the statement by

Chief Lanier that “in order to make registrants more clearly

accountable under the law, it is important to be able to

demonstrate that they were taught and aware of the

requirements.” This assertion, however, does not tie

knowledge of the law to the District’s interest in public safety.

Furthermore, even if acquiring knowledge of the law

were demonstrably helpful, the imposition of a requirement

that registrants prove their knowledge of the law on “a test

prescribed by the Chief” is an additional burden, see D.C.

Code § 7-2502.03(10), the utility of which is supported by no

evidence whatsoever, not even anecdotal evidence.

Moreover, only a few of the 15 questions in the test actually

3

J.A. 394 (Lanier declaration) (“California, Connecticut, Hawaii,

Massachusetts, and Michigan all have laws requiring some sort of

training or safety certification as part of the registration process,

and other jurisdictions are considering instituting similar

requirements”); J.A. 407 (Vince declaration) (stating that he “do[es]

not know of one firearm expert or law enforcement trainer who has

not strongly recommended attending and successfully passing a

safety course prior to owning or using a firearm”).

26

prescribed by the Chief plausibly reflect a concern with public

safety. 4

Because the District has offered no evidence from which

the court can infer it reasonably concluded that knowledge of

its gun laws, as shown by passing its test, will promote public

safety, on this record the requirement must be held

constitutionally invalid.

vi. One-pistol-per-month rule, D.C. Code. § 7-

2502.03(e)

The District has not presented substantial evidence to

support the conclusion that its prohibition on the registration

of “more than one pistol per registrant during any 30-day

period,” D.C. Code § 7-2502.03(e), “promotes a substantial

governmental interest that would be achieved less effectively

absent the regulation.” Heller II, 670 F.3d at 1258 (quoting

Rock Against Racism, 491 U.S. at 782-83). It is therefore

unconstitutional.

The District argues that the limitation could reduce gun

trafficking and that it would further promote public safety by

limiting the number of guns in circulation, as the District

“could reasonably conclude that more guns lead to more gun

theft, more gun accidents, more gun suicides, and more gun

crimes.”

4

Compare J.A. 834 (“When handling a firearm, you should always:

(A) Treat it as if it is loaded; (B) Point it in a safe direction; (C)

Both A and B”) with J.A. 834 (“To purchase ammunition in the

District of Columbia you must have the following in your

possession: (A) A U.S. Passport; (B) A valid firearm registration

certificate; (C) A valid driver’s license”).

27

As for the District’s first argument, what little expert

testimony it presented indeed indicates that limiting gun

purchases in turn might limit trafficking in weapons. The

experts’ conclusion that limiting gun registrations would

likewise reduce trafficking is, however, unsupported by the

evidence. For example, Chief Lanier stated “[s]tudies have

shown that laws restricting the registration or purchase of

multiple firearms in a given period are effective in disrupting

illegal interstate trafficking of firearms.” Yet the only study

she and the District’s other witnesses cited has nothing to do

with “laws restricting registration,” as its title attests. See

Douglas S. Weil & Rebecca C. Knox, Effects of Limiting

Handgun Purchases on Interstate Transfer of Firearms, 275

J. AM. MED. ASS’N 1759 (1996). One of the experts also

testified from his own observation that when Virginia limited

firearm purchases to one every 30 days, fewer guns bought in

Virginia were used in crimes committed in the District;

traffickers, he observed, instead sourced more guns through

straw purchasers in Maryland. But even if this is true, the

suggestion that a gun trafficker would bring fewer guns into

the District because he could not register more than one per

month there lacks the support of experience and of common

sense. Indeed, as Heller notes, even Chief Lanier

acknowledged that the efficacy of purchasing limitations in

preventing trafficking may have little bearing upon the

efficacy of registration limitations in doing so.

As for the District’s second argument, one of its experts

testified that, in his opinion, “the most effective method of

limiting misuse of firearms, including homicide, suicide, and

accidental injuries, is to limit the number of firearms present

in a home.” Accepting that as true, however, it does not

justify restricting an individual’s undoubted constitutional

right to keep arms (plural) in his or her home, whether for

self-defense or hunting or just collecting, because, taken to its

28

logical conclusion, that reasoning would justify a total ban on

firearms kept in the home. See Parker v. District of

Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007), aff’d sub nom.

Heller I (rejecting the District’s argument that a ban on one

type of gun was constitutional because the “prohibition …

[did] not threaten total disarmament” and noting that, if such

argument were adopted “[i]t could similarly be contended that

all firearms may be banned so long as sabers were

permitted”).

III. Conclusion

For the reasons set forth above, the district court’s final

order is AFFIRMED with respect to: the basic registration

requirement as applied to long guns, D.C. Code § 7-

2502.01(a); the requirement that a registrant be fingerprinted

and photographed and make a personal appearance to register

a firearm, D.C. Code § 7-2502.04; the requirement that an

individual pay certain fees associated with the registration of

a firearm, D.C. Code § 7-2502.05; and the requirement that

registrants complete a firearms safety and training course,

D.C. Code § 7-2502.03(a)(13). The district court’s order is

REVERSED with respect to the requirement that a person

bring with him the firearm to be registered, D.C. Code § 7-

2502.04(c); the requirement that a gun owner re-register his

firearm every three years, D.C. Code § 7-2502.07a; the

requirement that conditions registration of a firearm upon

passing a test of knowledge of the District’s firearms laws,

D.C. Code § 7-2502.03(a)(10); and the prohibition on

registration of “more than one pistol per registrant during any

30-day period,” D.C. Code § 7-2502.03(e).

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring

in part and dissenting in part: Regulating firearms in order to

combat gun violence is a grave and complex task. The

Supreme Court has made that legislative endeavor

considerably more difficult by “tak[ing] certain policy choices

off the table,” Dist. of Columbia v. Heller, 554 U.S. 570, 636

(2008), and divining a new—and incomplete, see id. at 635—

definition of what the Second Amendment protects. Heller

has “hand[ed] our democratic destiny to the courts” by

inviting litigants to draw them into this political thicket.

J. Harvie Wilkinson III, Of Guns, Abortions, and the

Unraveling Rule of Law, 95 VA. L. REV. 253, 257 (2009).

Happily, the “dominoes” have not fallen as quickly as

expected, Heller, 554 U.S. at 680 (Stevens, J., dissenting), as

most of our sister circuits have afforded a healthy level of

deference to the law-makers. But today I fear the majority

has initiated a retreat—at least in part—from the practice of

restraint.

My colleagues uphold six District of Columbia firearms

laws but strike down four of them. Because I would uphold

them all, I concur in part and dissent in part. In my view, the

firearms laws that my colleagues invalidate (hereinafter, the

remaining laws) satisfy intermediate scrutiny and,

accordingly, I would affirm the well-reasoned decision of the

district court. See 45 F. Supp. 3d 35 (D.D.C. 2014).

I. GENERAL PRINCIPLES

Since the Supreme Court’s decision in Heller, this Court

analyzes Second Amendment challenges under a two-step

framework. First, we ask whether the law “impinges upon”

Second Amendment rights, i.e., whether it has “more than a

de minimis effect” on the right to keep and bear arms. Heller

v. Dist. of Columbia (Heller II), 670 F.3d 1244, 1252–53

(D.C. Cir. 2011). Second, if it does, we evaluate it under “the

appropriate level of constitutional scrutiny.” Id. at 1252. In

2

an earlier iteration of this case, we concluded that the

challenged laws were “not de minimis” because they were

“novel” and “ma[d]e it considerably more difficult for a

person lawfully to acquire and keep a firearm . . . [for] self-

defense in the home.” Id. at 1255 (citing Heller, 554 U.S. at

630). We also determined that intermediate scrutiny, not

strict scrutiny, is the proper yardstick because the laws “do

not severely limit the possession of firearms.” Id. at 1257

(alteration and quotation marks omitted).

Intermediate scrutiny has its genesis in the Supreme

Court’s equal protection and free speech jurisprudence. See,

e.g., Craig v. Boren, 429 U.S. 190, 197 (1976); United States

v. O’Brien, 391 U.S. 367, 377 (1968). It is a middle-ground

approach that “offer[s] proper protection in the many

instances in which a statute adversely affects constitutionally

protected interests but warrants neither near-automatic

condemnation (as ‘strict scrutiny’ implies) nor near-automatic

approval (as is implicit in ‘rational basis’ review).” United

States v. Alvarez, 132 S. Ct. 2537, 2552 (2012) (Breyer, J.,

concurring in judgment). It essentially imposes a balancing

test: the law is constitutional if “the governmental interest

outweighs the burden [on constitutional rights] and cannot be

achieved by means that do not infringe . . . rights as

significantly.” Minneapolis Star & Tribune Co. v. Minn.

Comm’r of Revenue, 460 U.S. 575, 585 n.7 (1983). “[T]he fit

between the challenged regulation and the asserted objective

need only be reasonable, not perfect,” Schrader v. Holder,

704 F.3d 980, 990 (D.C. Cir. 2013) (alterations and quotation

marks omitted), and the challenged law “need not be the least

restrictive or least intrusive means of” achieving the

government’s interest, Ward v. Rock Against Racism, 491

U.S. 781, 798 (1989).

3

The application of intermediate scrutiny “varies to some

extent from context to context, and case to case.” Bartnicki v.

Vopper, 200 F.3d 109, 124 (3d Cir. 1999), aff’d, 532 U.S. 514

(2001). In this case and context, I believe the following

principles should shape our analysis.

First, the nature of firearms regulation requires ample

deference to the legislature. We have previously held that, in

the Second Amendment context, “we afford ‘substantial

deference to the predictive judgments of [the legislature].’ ”

Schrader, 704 F.3d at 990 (quoting Turner Broad. Sys., Inc. v.

FCC (Turner I), 512 U.S. 622, 665 (1994)). This is because

“the legislature is far better equipped than the judiciary to

make sensitive public policy judgments (within constitutional

limits) concerning the dangers in carrying firearms and the

manner to combat those risks.” Id. (quotation marks omitted).

Firearm policy is a “complex and dynamic” issue implicating

“vast amounts of data” that the legislature is “far better

equipped” to gather and analyze. Turner I, 512 U.S. at 665–

66. Such “information can be difficult to obtain and the

impact of certain conduct difficult to assess,” Holder v.

Humanitarian Law Project, 561 U.S. 1, 34 (2010), due to the

different challenges facing different jurisdictions and the

multiple factors that contribute to gun violence. Indeed, the

data that does exist is either incomplete or influenced by

partisanship:

Few topics in the realm of U.S. justice and politics

elicit a more polarizing response than that of gun

control. . . . At the center of the debate is the

fundamental question of whether firearms,

specifically those owned and wielded by private

citizens, do more harm than good in deterring violent

crime. Despite intense scrutiny from so many fields,

however, scholars have reached few solid

4

conclusions to date. The answers to even basic

questions (who is victimized, how many are

victimized, and at what cost are they victimized) are

fiercely disputed, resulting in a nebulous yet hotly

contested understanding of the interplay between

guns and crime. . . . Data exists to support both

sides; the difficulty lies in separating partisanship

and underlying attitudes from empirical observation

and objective analysis. In truth, the isolation of such

objectivity may be a logical impossibility.

II AMERICAN POLITICAL CULTURE: AN ENCYCLOPEDIA 505–

06 (Michael Shally-Jensen ed. 2015). Intermediate scrutiny is

a flexible framework that allows for different perspectives and

a range of approaches to firearms regulation. See Fla. Bar v.

Went For It, Inc., 515 U.S. 618, 632 (1995) (intermediate

scrutiny does not require “the single best disposition” to

problem); Time Warner Entm’t Co., L.P. v. United States, 211

F.3d 1313, 1322 (D.C. Cir. 2000) (“In applying intermediate

scrutiny, we inquire ‘not whether Congress, as an objective

matter, was correct . . . .’ ” (quoting Turner Broad. Sys., Inc.

v. FCC (Turner II), 520 U.S. 180, 211 (1997) (emphasis

added))).

Indeed, judicial humility is especially important in the

context of firearms regulation. Although our Second

Amendment precedent draws on First Amendment and

voting-rights cases, see, e.g., Heller II, 670 F.3d at 1257, the

right to bear arms is meaningfully different from the rights to

speak and vote. See Bonidy v. USPS, 790 F.3d 1121, 1126

(10th Cir. 2015) (“The risk inherent in firearms and other

weapons distinguishes the Second Amendment right from

other fundamental rights that . . . can be exercised without

creating a direct risk to others.”). At the same time, however,

the Second Amendment is not a “second-class right,”

5

McDonald v. City of Chi., 561 U.S. 742, 780 (2010)

(plurality), but the reality of gun violence means our

constitutional analysis should incorporate deference to the

legislature, see Humanitarian Law Project, 561 U.S. at 34–

36. One of our sister circuits said it well:

This is serious business. We do not wish to be even

minutely responsible for some unspeakably tragic act

of mayhem because in the peace of our judicial

chambers we miscalculated as to Second

Amendment rights. . . . If ever there was an occasion

for restraint, this would seem to be it.

United States v. Masciandaro, 638 F.3d 458, 475–76 (4th Cir.

2011).

Second, the District of Columbia is sui generis. The

plaintiffs are quick to point out that the District’s firearms

laws are the toughest in the country and that a few have no

parallel in other jurisdictions. But their point is unhelpful if

the District is different from other jurisdictions. And it is.

Most notably, the District is the seat of our national

government. The record amply documents the unique

security risks presented by a city full of high-level

government officials, diplomats, monuments, parades,

protests and demonstrations and, perhaps most pertinent,

countless government buildings where citizens are almost

universally prohibited from possessing firearms. See, e.g., 18

U.S.C. § 930(a), (g)(1) (unlawful to “knowingly possess[] or

cause[] to be present a firearm or other dangerous weapon in

. . . a building or part thereof owned or leased by the Federal

Government, where Federal employees are regularly present

for the purpose of performing their official duties,” other than

a Federal court facility); id. § 930(e)(1) (unlawful to

“possess[] or cause[] to be present a firearm or other

6

dangerous weapon in a Federal court facility”); 40 U.S.C.

§ 5104(e)(1)(A) (unlawful to “carry on or have readily

accessible to any individual on the Grounds or in any of the

Capitol Buildings a firearm”); see also 18 U.S.C.

§ 922(q)(2)(A) (making schools gun-free zones); Lanier Test.

2–5. Indeed, walking around this town, one gets the

impression that it is one big government building. Cf. Heller,

554 U.S. at 626 (“the right secured by the Second

Amendment is not unlimited” and can give way to regulations

of “the carrying of firearms in sensitive places” like

“government buildings”). Although the Constitution does not

stop at the Beltway, our analysis should account for the

unique challenges that confront the District as it struggles to

regulate firearms in our Nation’s capital. See City of L.A. v.

Alameda Books, Inc., 535 U.S. 425, 439–40 (2002) (“A

municipality considering an innovative solution may not have

data that could demonstrate the efficacy of its proposal

because the solution would, by definition, not have been

implemented previously.”).

II. THE REMAINING LAWS

My colleagues strike down the District’s laws requiring

registrants to pass a knowledge test, D.C. CODE § 7-

2502.03(a)(10); present their firearms for inspection, id. § 7-

2502.04(c); renew their registration every three years, id. § 7-

2502.07a(a); and register no more than one pistol per month,

id. § 7-2502.03(e). I address these laws seriatim and explain

why, in my view, each one satisfies intermediate scrutiny.

A. Knowledge Test

Before an individual can register a gun, he must

demonstrate his knowledge of the District’s firearms laws by

passing a test. Id. § 7-2502.03(a)(10). The test is not

particularly onerous: it consists of two pages with thirteen

7

multiple-choice questions and two True/False questions. 1 The

examinee must answer eleven questions correctly (a score of

70%). He need pass the test only once, id., and he can retake

it as many times as he wants. See 24 DCMR § 2311.7–.8.

The test is intended to ensure gun owners have a “basic level

of knowledge” about the District’s firearms laws. Comm.

Report 17. Those laws, in turn, promote the public safety. Id.

The plaintiffs contend, and my colleagues agree, that the

District presented “no evidence” its knowledge test furthers

its alleged interests. Appellants’ Br. 53–54; Maj. Op. 24. But

the notion that test-taking promotes knowledge is obvious—

ask any teacher, student or professional licensing board in the

country. See Delaware v. Prouse, 440 U.S. 648, 658 (1979)

(“States have a vital interest in ensuring that only those

qualified to do so are permitted to operate motor vehicles . . .

[and] are sufficiently familiar with the rules of the road

. . . .”); Levitt v. Comm. for Pub. Educ. & Religious Liberty,

413 U.S. 472, 480 (1973) (“a regular program of traditional

internal testing designed to measure pupil achievement” plays

an “obviously integral role . . . in the total teaching process”);

Schware v. Bd. of Bar Exam., 353 U.S. 232, 239 (1957) (“A

State can require high standards of qualification, such as . . .

proficiency in its law, before it admits an applicant to the bar

. . . .”). Several of the District’s experts testified to that effect.

1

The questions are not difficult. Consider, for example,

Question 3:

Firearms may be lawfully discharged on public space in the

District of Columbia:

(A) Into the air on New Year’s Eve.

(B) At registered turkey hunts on Thanksgiving.

(C) After obtaining a special written permit from the

Chief of Police authorizing the weapon to be

discharged on public space.

8

See Lanier Decl. ¶¶ 23–24; Jones Decl. ¶ 23; Webster Decl.

¶ 35; Lanier Test. 2; Jones Report 10. Under intermediate

scrutiny, the District does not need to cite empirical studies

for the common-sense notion that mandatory testing promotes

knowledge of, and obedience to, its laws. See Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001) (“[W]e have

permitted litigants . . . even[] in a case applying strict

scrutiny, to justify restrictions based solely on history,

consensus, and ‘simple common sense.’ ” (quoting Went For

It, 515 U.S. at 628 (emphasis added)); Nat’l Cable &

Telecomms. Ass’n v. FCC, 555 F.3d 996, 1002 (D.C. Cir.

2009) (we do not require “exhaustive evidence documenting

the necessity of [a given law]” and we have “relied on [the

legislature’s] reasonable, commonsense determination that

[the law is] required”). See generally Nixon v. Shrink Mo.

Gov’t PAC, 528 U.S. 377, 391 (2000) (“The quantum of

empirical evidence needed to satisfy heightened judicial

scrutiny of legislative judgments will vary up or down with

the novelty and plausibility of the justification raised.”).

The plaintiffs do not identify any alternative means by

which the District can achieve its goals. Their implied

alternative—no test at all—is plainly lacking. Given the

uniqueness and complexity of the District’s firearms laws, it

has an especially pressing need to educate its citizens about

their contents. Under intermediate scrutiny, the District can

“add[] a prophylaxis to the law,” even if it “focuses upon

behavior already arguably proscribed by other laws.” Time

Warner, 211 F.3d at 1320; see also United States v. Mahin,

668 F.3d 119, 127 (4th Cir. 2012) (“The Second Amendment

does not disable Congress and the states from erecting

preventative measures . . . .” (emphasis added)). Granted, in

criminal cases, courts usually presume that individuals know

the law. See McFadden v. United States, 135 S. Ct. 2298,

2304 (2015) (“[I]gnorance of the law is typically no defense

9

to criminal prosecution . . . .”). But this presumption is a legal

fiction, not an accurate description of the world. See McBoyle

v. United States, 283 U.S. 25, 27 (1931); see also JOHN

SELDEN, TABLE-TALK 174 (Constable & Co. 1827)

(“Ignorance of the law excuses no man; not that all men know

the law, but because ‘tis an excuse every man will plead, and

no man can tell how to confute him.” (emphasis added)). All

too often, individuals do not know the law and legislatures do

well to ensure they are informed before they can own and use

a dangerous weapon.

In sum, I believe the District’s knowledge test satisfies

intermediate scrutiny. It ensures a gun owner has a basic

understanding of the District’s firearms laws—laws that

unquestionably promote the public safety.

B. Presenting the Firearm

The Metropolitan Police Department (MPD) can require

a potential registrant to present his firearm for inspection.

D.C. CODE § 7-2502.04(c). The law has an obvious,

straightforward purpose: verification. See Appellees’ Br. 47–

48; Defs.’ Summ. J. Reply Br. 25 n.21. The MPD wants to

conduct a physical inspection to “verify that the application

information is correct and that the firearm has not been

altered.” Appellees’ Br. 47–48; see 24 DCMR § 2313.8(c)

(“The Director may require an applicant to return with the

firearm if . . . the information relating to the weapon on the

application [appears] incorrect, misleading, or incomplete.”).

It also wants to ensure the firearm is in safe operating

condition and does not belong to a prohibited class of

weapons. See 24 DCMR § 2313.8(b) (“The Director may

require an applicant to return with the firearm if . . . the

firearm may be unregisterable, defective, or in a dangerous

condition or state of disrepair.”).

10

The plaintiffs contend, and my colleagues agree, that

physically inspecting a firearm is unnecessary because no one

would both register a firearm and lie about its physical

characteristics—they would simply decline to register it in the

first place. See Maj. Op. 21. But the present-the-firearm

requirement is not targeted at falsehoods only; the District is

also worried about innocent mistakes. See 24 DCMR

§ 2313.8(c) (“The Director may require an applicant to return

with the firearm if . . . the application [appears] incorrect . . .

or incomplete.” (emphases added)). And many registrants

will not be aware that their firearm is unsafe to operate or

ineligible to be registered, see id. § 2313.8(b), until they

present it and allow the MPD to take a closer look.

The plaintiffs further contend that the District’s interest

in verification is outweighed by the burdens that presenting

the firearm imposes on registrants. According to the

plaintiffs, a person who presents his firearm to the MPD could

be arrested, have his gun stolen or be mistaken for an

assailant. These risks, in my mind, are quite overblown. For

starters, it is not a crime to transport a firearm to the MPD for

the purpose of registering it. See D.C. CODE §§ 22-4504.01;

22-4504.02(a); 18 U.S.C. § 926a. Moreover, registrants are

instructed to leave their firearm at home unless asked to

present it, 24 DCMR § 2313.7, and must transport the firearm

“in accordance with [section] 22-4504.02,” D.C. CODE § 7-

2502.04(c)—i.e., unloaded, stored in a locked container,

separate from any ammunition and inaccessible to the driver

and any passenger, see id. § 22-4504.02(b)–(c). These

provisions minimize the risk of an accident. And any

remaining risk of theft or misunderstanding is an inherent

feature of owning a firearm—not a unique problem created by

the District’s laws.

11

Accordingly, I believe the present-the-firearm

requirement satisfies intermediate scrutiny. It imposes a

slight burden on registrants and allows the District to verify

that the firearm is described correctly, has not been altered, is

safe to operate and is eligible for registration.

C. Re-Registration

The District’s registration certificates expire every three

years. Id. § 7-2502.07a(a). Thus, a gun owner who wants to

maintain his registration must periodically renew it. Id.

Renewal is “simple” by design. Comm. Report 10. The

registrant fills out a two-page form online, by mail or in

person. D.C. CODE § 7-2502.07a(c). The form includes a

questionnaire to determine whether the registrant remains

qualified to possess a firearm and requests his current address

and an attestation that he continues to possesses the firearm.

See Firearms Registration Renewal Application, METRO.

POLICE DEP’T, available at http://mpdc.dc.gov/sites/default/

files/dc/sites/mpdc/publication/attachments/Firearms%20Regi

stration%20Renewal%20Form%2012.18.13.pdf (last visited

September 17, 2015). 2 The District reminds a registrant to

renew his certificate ninety days in advance, D.C. CODE § 7-

2502.07a(e)(1), and gives him a ninety-day grace period after

2

To renew the certificate for a firearm registered before

January 1, 2011, a registrant must also appear in person and be

fingerprinted. See 24 DCMR § 2326.2. This process is a one-time

requirement and does not apply to subsequent renewals. See

Firearms Registration Renewal: Complete Renewal Procedures,

METRO. POLICE DEP’T, available at http://mpdc.dc.gov

/page/firearms-registration-renewal-complete-renewal-procedures

(last visited September 17, 2015) (“Subsequent registration

renewals will be done online or by mail.”). It is constitutional for

the same reasons that the re-registration, fingerprinting and in-

person appearance requirements are constitutional.

12

the renewal period expires, see 24 DCMR § 2326.4. Re-

registration serves several purposes. It promotes public safety

by allowing the District to monitor whether a gun owner has

fallen into a class of people who cannot legally possess a

firearm (e.g., felons, the mentally ill, subjects of protective

orders). See Comm. Report 4, 11–12; Jones Decl. ¶ 23;

Lanier Decl. ¶ 21; Vince Decl. ¶ 22; Webster Decl. ¶ 30. And

it keeps the District’s firearms registry up to date. See Comm.

Report 4, 10. The MPD needs updated information, including

the registrant’s most recent address, so that it knows where to

retrieve the firearm if the owner becomes disqualified to

possess it. See Lanier Decl. ¶ 21; Webster Decl. ¶ 30; see

also Appellees’ Br. 48 (“The District . . . has a population that

is significantly more transient than other states.”). Moreover,

re-registration helps combat the loss and illegal transfer of

firearms by requiring a registrant to account for his weapons

on a regular basis and by providing MPD with “up-to-date

information about the firearm’s last legal whereabouts.”

Comm. Report 11; see also id. at 8, 10; Webster Decl. ¶ 30.

The plaintiffs argue that the District could achieve each

of these goals with less burdensome alternatives. As for

ensuring that a registrant does not fall into a disqualified

class, the plaintiffs note that the District is free to run

background checks whenever it pleases. Yet background

checks are less efficient and effective than a universal re-

registration requirement, the latter ensuring that everyone

remains eligible to own a firearm. See Jones Decl. ¶ 24 (re-

registration provides “mandatory accountability to . . . public

safety officials”); id. at ¶ 23 (re-registration “compels a

systemic review of all legally registered firearms and

registrants”). “Of course, administrative convenience and

economic cost-saving are not, by themselves, conclusive

justifications for burdening a constitutional right under

intermediate scrutiny. However, such considerations are

13

relevant to [the Second Amendment analysis].” Bonidy, 790

F.3d at 1127 (emphasis added). At bottom, the District needs

to show that re-registration does not burden “substantially

more [rights] than is necessary,” not that it is the “least

intrusive means” of keeping tabs on gun owners. McCullen v.

Coakley, 134 S. Ct. 2518, 2535 (2014) (quoting Ward, 491

U.S. at 798–99). Assuming they could reveal all the reasons

someone might become disqualified to possess a firearm (a

dubious proposition, see generally D.C. CODE § 7-

2502.03(a)), I fail to see how dragnet background checks are

“substantially” less burdensome than filling out a two-page

form every three years. McCullen, 134 S. Ct. at 2535.

Moreover, background checks plainly do not further the

District’s interests in updating its firearms registry and

promoting accountability of gun owners.

As for the latter interests, the plaintiffs point out that a

gun owner is already required to notify the District if he

changes his address or loses his firearm. See D.C. CODE § 7-

2502.08(a). But the District tried to rely on registrant

notification for several years and the experiment failed.

According to the Committee Report, “[relying on notification

alone] has not been effective. Thousands of registrants have

moved, died, disposed of their guns (or perhaps lost them) and

have not notified MPD. . . . [M]any registrants cannot be

located.” Comm. Report 10; see also Jones Decl. ¶ 24.

Instead of continuing to depend on registrant-initiated

notification, the District’s re-registration requirement provides

“mandatory accountability” by forcing a registrant to update

his information under threat of cancellation. Jones Decl. ¶ 24;

see also Vince Decl. ¶ 22; Webster Decl. ¶ 30 (re-registration

“is analogous to the widely-accepted Federal requirement that

licensed gun dealers be audited periodically to make sure that

they can account for their firearms”). This is a permissible

alternative under intermediate scrutiny. See Nat’l Cable &

14

Telecomm’ns Ass’n, 555 F.3d at 1002 (affirming opt-in

scheme because “opt-out is only marginally less intrusive than

opt-in” and agency “carefully considered the differences

between the[] two” and made “reasonable, commonsense

determination” (citation omitted)). “[T]he Constitution does

not require that the [District] choose ineffectual means.”

Rosario v. Rockefeller, 410 U.S. 752, 762 n.10 (1973).

My colleagues do not believe the re-registration

requirement deters the loss or illegal transfer of firearms

because it does not require a registrant to produce the gun; it

“requires only that [he] affirm that he still has [it].” Maj. Op.

23. In other words, my colleagues believe registrants will not

be truthful on their re-registration forms. The plaintiffs do not

make this argument in their briefs, however, so we need not—

indeed, should not—consider it. See Schrader, 704 F.3d at

991–92. Nor is the argument persuasive. A re-registrant must

attest, under penalty of perjury, that he still possesses the

firearm. See Firearms Registration Renewal Application,

supra, at 11. In my view, the District reasonably assumes that

most re-registrants will tell the truth. Cf. Rehberg v. Paulk,

132 S. Ct. 1497, 1505 (2012) (threat of perjury prosecution

adequately deters false testimony).

In short, I believe the District’s re-registration

requirement passes constitutional muster. It imposes only

minimal burdens on Second Amendment rights and

simultaneously satisfies the District’s interests in preventing

disqualified people from owning firearms, keeping the

firearms registry up-to-date and deterring the loss and illegal

transfer of firearms.

D. One Pistol Per Thirty Days

The District prohibits a registrant from registering more

than one pistol in the same thirty-day period. D.C. CODE § 7-

15

2502.03(e); 24 DCMR § 2305.3; see also D.C. CODE § 7-

2501.01(12) (defining “pistol” as “any firearm originally

designed to be fired by use of a single hand or with a barrel

less than 12 inches in length”). This limitation does not apply

to an individual who relocates to the District and wants to

register pistols he lawfully owned in another jurisdiction for

at least six months. D.C. CODE § 7-2502.03(e); 24 DCMR

§ 2305.4. 3 The parties agree that the purpose behind the one-

pistol-per-thirty-days rule is to stem the illegal trafficking of

handguns. See Comm. Report 10, 14–15.

The plaintiffs argue, however, that the one-pistol-per-

month limitation does nothing to further this goal. No one,

they point out, would bring pistols into the District, register

them and then traffic them. The person would simply never

register the pistols at all. But the plaintiffs focus on the

wrong side of the equation. The one-pistol-per-thirty-days

limitation is directed at the supply side, rather than the

demand side, of illegal handgun trafficking. As stated in the

Committee Report:

The law burdens gun traffickers and the straw

purchasers they hire to supply them with guns, and it

makes it more difficult for the rare dirty gun dealer

who is willing to look the other way when a single

individual walks in to his store asking to buy five or

10 or even 20 or more inexpensive handguns to be

sold on the street.

Comm. Report 16 (quoting Douglas Weil, A Law that Gun-

Rights Advocates Should Be Fighting to Keep, WASH. POST

3

And the one-pistol-per-thirty-days limitation applies to the

initial registration only; an individual can simultaneously re-

register as many pistols as he wants. See 24 DCMR § 2305.3.

16

(Feb. 17, 2012), http://www.washingtonpost.com

/opinions/a-law-that-gun-rights-advocates-should-be-fighting-

to-keep/2012/02/16/gIQAvcASKR_story.html); see also

Jones Decl. ¶ 18; Lanier Decl. ¶ 29; Vince Decl. ¶ 17. In

other words, the one-pistol-per-thirty-days limitation deters

dealers from selling more than one handgun at a time because

they know multiple handguns cannot be registered and, thus,

cannot be possessed or used for a lawful purpose. The

Committee Report points to Virginia as an example of a

jurisdiction that, after enacting a similar law, successfully

reduced illegal handgun trafficking. See Comm. Report 15–

16; see also Jones Decl. ¶ 19. True, notwithstanding the one-

pistol-per-thirty-days limitation, a firearms trafficker could

acquire handguns from another jurisdiction and transport

them into the District. See Maj. Op. 27. But the law

nonetheless deters the rapid acquisition of multiple firearms

within the District. See Comm. Report 16 (“Since other states

permit multiple gun sales—including, now, Virginia—our

District law remains important. Indeed, the other states

should follow, so as to erect a wide web to frustrate the

traffickers.”) The District need not—indeed, cannot—solve

problems created by the relatively lax firearms laws in other

jurisdictions. Cf. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656,

1668 (2015) (even under strict scrutiny, “[a] State need not

address all aspects of a problem in one fell swoop;

policymakers may focus on their most pressing concerns”). 4

4

My colleagues point out that the sources cited in the

Committee Report discuss limitations on the purchase, not the

registration, of handguns. See Maj. Op. 27. The plaintiffs,

however, do not make this argument and I do not believe we should

do so on their behalf. See Schrader, 704 F.3d at 991–92. Even if

we did, I think any distinction between purchase and registration is

immaterial. Because the District prohibits the possession of

17

Given the record evidence supporting it, the one-pistol-

per-thirty-days limitation is constitutional—a conclusion that

is bolstered by the fact that it imposes very little burden on

Second Amendment rights. The plaintiffs contend—and my

colleagues suggest, see Maj. Op. 27–28—that an individual

has as much constitutional right to a second pistol as he does

the first. They note that the Second Amendment discusses the

right to keep and bear “Arms,” plural. See id. But I doubt

their textual point has much force: the Second Amendment

also uses the word “people,” plural, so the “s” on “Arms” is

grammatically necessary. And Heller does not support their

position either. The “core” of the Second Amendment is the

right to use a firearm for self-defense in the home, Heller, 554

U.S. at 630—a right that is vindicated with one handgun. The

plaintiffs’ position has no stopping point: it would authorize

everyone to possess his own Rambo-style armory. Cf. id. at

627 (noting that Second Amendment does not protect right to

form “effective” militia (emphasis added)). In any event, we

need not decide whether the Second Amendment protects the

right to a second firearm as much as the first firearm because,

even assuming it does, the one-pistol-per-month limitation is

only a small (and temporary) limit on Second Amendment

rights. It imposes a thirty-day waiting period on the right to

acquire a second pistol—an acceptable burden, given the

availability of the first pistol, the availability of other firearms

and the deadly costs of illegal handgun trafficking. Cf.

Rosario, 410 U.S. at 760–62 (requiring party registration

eight months in advance of presidential primary is

constitutional means of preventing one party’s voters from

designating themselves as another party’s voters).

unregistered firearms, D.C. CODE § 7-2502.01(a), a limitation on

registration is the functional equivalent of a limitation on purchases.

18

In conclusion, I agree with my colleagues’ decision to

uphold the District’s long-gun registration, registration fee,

in-person appearance, photographing, fingerprinting and

training requirements. Those parts of the majority opinion

display proper deference to the District in its ongoing efforts

to formulate a workable firearms policy for our Nation’s

capital. I believe my colleagues too readily abandon this

approach, however, with respect to the knowledge test,

present-the-firearm, re-registration and one-pistol-per-thirty-

days requirements. Accordingly, I respectfully dissent in part.