Heller v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2010 Decided October 4, 2011

No. 10-7036

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 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.

2

Matthew M. Shors was on the brief for amici curiae

Professional Historians and 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.

Opinion for the Court filed by Circuit Judge GINSBURG.

I. Background 4

II. Analysis 8

A. Statutory Authority 9

B. The Second Amendment 12

1. The Heller Decision 12

2. The Constitutional Framework 13

3. Registration Requirements 15

a. Do the registration requirements impinge upon

the Second Amendment right? 15

i. Basic registration requirements 15

ii. Novel registration requirements 19

b. Intermediate scrutiny is appropriate 20

c. Intermediate scrutiny requires remand 24

4. Assault Weapons and Large-Capacity Magazines 28

a. Do the prohibitions impinge upon the Second

Amendment right? 29

b. Intermediate scrutiny is appropriate 31

c. The prohibitions survive intermediate scrutiny 33

III. Conclusion 36

3

Appendix: Regarding the Dissent 36

A. Interpreting Heller and McDonald 36

B. Registration Requirements 42

C. Assault Weapons 42

Dissenting opinion filed by Circuit Judge KAVANAUGH.

GINSBURG, Circuit Judge: In June 2008 the Supreme

Court held the District of Columbia laws restricting the

possession of firearms in one’s home violated the Second

Amendment right of individuals to keep and bear arms. See

District of Columbia v. Heller, 554 U.S. 570. In the wake of

that decision, the District adopted the Firearms Registration

Amendment Act of 2008 (FRA), D.C. Law 17-372, which

amended the Firearms Control Regulations Act of 1975, D.C.

Law 1-85. The plaintiffs in the present case challenge, both

facially and as applied to them, the provisions of the District’s

gun laws, new and old, requiring the registration of firearms

and prohibiting both the registration of “assault weapons” and

the possession of magazines with a capacity of more than ten

rounds of ammunition. The plaintiffs argue those provisions

(1) are not within the District’s congressionally delegated

legislative authority or, if they are, then they (2) violate the

Second Amendment.

The district court granted summary judgment for the

District and the plaintiffs appealed. We hold the District had

the authority under D.C. law to promulgate the challenged

gun laws, and we uphold as constitutional the prohibitions of

assault weapons and of large-capacity magazines and some of

the registration requirements. We remand the other

registration requirements to the district court for further

proceedings because the record is insufficient to inform our

resolution of the important constitutional issues presented.

4

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, but not a right “to keep and carry any

weapon whatsoever in any manner whatsoever and for

whatever purpose,” id. at 626. More specifically, the Court

held unconstitutional the District’s “ban on handgun

possession in the home” as well as its “prohibition against

rendering any lawful firearm in the home operable for the

purpose of immediate self-defense,” id. at 635, noting “the

inherent right of self-defense [is] central to the Second

Amendment right,” id. at 628. Therefore, unless the plaintiff

was “disqualified from the exercise of Second Amendment

rights” for some reason, such as a felony conviction, the

District had to permit him to register his handgun. Id. at 635.

Shortly after the Supreme Court issued its decision in

Heller, the D.C. Council passed emergency legislation in an

effort to conform the District’s laws to the Supreme Court’s

holding while it considered permanent legislation. The

Council’s Committee on Public Safety and the Judiciary then

held three public hearings on the subject. In December 2008,

upon the Committee’s recommendation, the full Council

passed the FRA. 56 D.C. Reg. 3438 (May 1, 2009).

The plaintiffs challenge a host of provisions of the new

scheme for regulating firearms. * First they object to the

*

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

5

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

comprehensive registration scheme in 1975. See Firearms Control

Regulations Act of 1975, D.C. Law 1-85.

6

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

*

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.

7

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. *

*

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

semi-automatic 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 §§ 7-2501.01(3A)(A)(i)(I)

and (IV). See Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149

8

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 assault weapons and large-

capacity magazines on the ground that the bans “do not

implicate the core Second Amendment right.” Id. at 195.

Holding, in the alternative, the bans would survive

intermediate scrutiny, id., the court granted summary

judgment for the District, and the plaintiffs appealed.

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

(2009) (standing doctrine “requires federal courts to satisfy

themselves that the plaintiff has alleged such a personal stake in the

outcome of the controversy as to warrant his invocation of federal-

court jurisdiction,” and the plaintiff “bears the burden of showing

that he has standing for each type of relief sought” (internal

quotation marks omitted)); Democratic Cent. Comm. v. Wash.

Metro. Area Transit Comm’n, 485 F.2d 786, 790 n.16 (D.C. Cir.

1973) (declining to consider claims because “[i]n their brief ...

petitioners offer no argument whatever in support of these points”).

9

States v. Wells Fargo Bank, 485 U.S. 351, 354 (1988).

Accordingly, we consider first whether the D.C. Council had

the statutory authority to enact the challenged gun laws.

A. Statutory Authority

The Congress in 1878 permanently established a Board

of Commissioners, to which it delegated regulatory authority

over the District in discrete areas of policy. Organic Act of

June 11, 1878, ch. 180, 20 Stat. 102, 103; see also District of

Columbia v. John R. Thompson Co., 346 U.S. 100, 111 (1953)

(under Organic Act, “municipal government was confined to

mere administration” (internal quotation marks omitted)).

The Congress passed the 1906 Act in part to grant the Board

the specific authority to regulate firearms:

the Commissioners of the District of Columbia

are hereby authorized and empowered to make

and enforce all such usual and reasonable

police regulations ... as they may deem

necessary for the regulation of firearms,

projectiles, explosives, or weapons of any kind

in the District of Columbia.

Act of June 30, 1906, ch. 3932, § 4, 34 Stat. 808, 809

(emphasis added), amended and codified at 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:

10

Except as provided in [certain sections not

relevant here], the legislative power of the

District shall extend to all rightful subjects of

legislation within the District consistent with

the Constitution of the United States and the

provisions of this [Act] ....

The plaintiffs argue the District’s authority to regulate

firearms remains limited by the 1906 Act, and that Act

prevents the District from promulgating the gun laws

challenged here. Specifically, the plaintiffs argue the D.C.

gun laws are not “usual” because they are not commonly

found in either state or federal law and they are also

unreasonable. (They maintain the Eighth Amendment case

law concerning what is “unusual” should inform our analysis

of whether these laws are “usual.”) The District defends the

challenged laws as both “usual and reasonable.” It argues a

regulation is “usual” if any other jurisdiction has or has had a

law addressing similar subject matter.

In any event the District argues, and the United States as

amicus curiae agrees, its authority in the HRA over “all

rightful subjects of legislation” affirmatively gives it the

power to enact the challenged gun laws. The plaintiffs

respond to that argument with the observation that the 1906

Act should not be “deemed amended or repealed” because the

HRA did not “specifically provide[]” for repeal and the 1906

Act is not “inconsistent with” the HRA. See D.C. Code § 1-

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”).

11

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, 304 F.3d 82, 83 (D.C. Cir. 2002) (HRA “lists certain

matters that are not rightful subjects” of legislation, such as “a

commuter tax on non-residents’ income”), and the District of

Columbia Court of Appeals has authoritatively if more

generally said as much, see Convention Ctr. Referendum

Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889, 903

(D.C. 1981) (en banc) (Council’s legislative power “limited

only by specified exceptions and by the general requirement

that legislation be consistent with the U.S. Constitution and

the Home Rule Act”). See also John R. Thompson Co., 346

U.S. at 104–05, 110 (concluding Organic Act of February 21,

1871, 16 Stat. 419, which gave District power over “all

rightful subjects of legislation,” conferred authority “as broad

as the police power of a state”). Hence we conclude the grant

of authority in the HRA comprises the subject of firearms and

supersedes the qualified grant to the District in the 1906 Act.

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.

12

D.C. Code § 1-204.04(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

bear Arms, shall not be infringed.” To determine how we are

to approach this question, we begin with Heller.

1. The Heller Decision

In Heller the Supreme Court explained the Second

Amendment “codified a pre-existing” individual right to keep

and bear arms, 554 U.S. at 592, which was important to

Americans not only to maintain the militia, but also for self-

defense and hunting, id. at 599. Although “self-defense had

little to do with the right’s codification[,] it was the central

component of the right itself.” Id.

Still, the Court made clear “the right secured by the

Second Amendment is not unlimited,” id. at 626, and it gave

some examples to illustrate the boundaries of that right. For

instance, the Court noted “the Second Amendment does not

protect those weapons not typically possessed by law-abiding

citizens for lawful purposes, such as short-barreled shotguns.”

Id. at 625 (citing United States v. Miller, 307 U.S. 174

(1939)). This limitation upon the right to keep and bear arms

was “supported by the historical tradition of prohibiting the

13

carrying of dangerous and unusual weapons.” Id. at 627

(internal quotation marks omitted).

The Court identified other historical limitations upon the

scope of the right protected by the Second Amendment. For

example, it noted “the majority of the 19th-century courts to

consider the question held that prohibitions on carrying

concealed weapons were lawful under the Second

Amendment or state analogues.” Id. at 626. It also provided

a list of some “presumptively lawful regulatory measures”:

nothing in our opinion should be taken to cast

doubt on longstanding prohibitions on the

possession of firearms by felons and the

mentally ill, or laws forbidding the carrying of

firearms in sensitive places such as schools and

government buildings, or laws imposing

conditions and qualifications on the commercial

sale of arms.

Id. at 626–27 & n.26. The Court made clear, however, it was

not “undertak[ing] an exhaustive historical analysis today of

the full scope of the Second Amendment.” Id. at 626.

2. The Constitutional Framework

Under Heller, therefore, there are certain types of

firearms regulations that do not govern conduct within the

scope of the Amendment. We accordingly adopt, as have

other circuits, a two-step approach to determining the

constitutionality of the District’s gun laws. Ezell v. City of

Chicago, No. 10-3525, 2011 WL 2623511, at *12–13 (7th

Cir. July 6, 2011); United States v. Chester, 628 F.3d 673,

680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792,

800–01 (10th Cir. 2010); United States v. Marzzarella, 614

14

F.3d 85, 89 (3d Cir. 2010). We ask first whether a particular

provision impinges upon a right protected by the Second

Amendment; if it does, then we go on to determine whether

the provision passes muster under the appropriate level of

constitutional scrutiny. See Ezell, 2011 WL 2623511, at *12–

13; Chester, 628 F.3d at 680; Reese, 627 F.3d at 800–01;

Marzzarella, 614 F.3d at 89; see also Nordyke v. King, 644

F.3d 776, 786 (9th Cir. 2011) (“only regulations which

substantially burden the right to keep and to bear arms trigger

heightened scrutiny under the Second Amendment”). As

explained below, and again in keeping with other circuits, we

think that insofar as the laws at issue here do impinge upon a

Second Amendment right, they warrant intermediate rather

than strict scrutiny.

With respect to the first step, Heller tells us

“longstanding” regulations are “presumptively lawful,” 554

U.S. at 626–27 & n.26; that is, they are presumed not to

burden conduct within the scope of the Second Amendment.

See McDonald v. City of Chicago, 130 S. Ct. 3020, 3047

(2010) (Heller “did not cast doubt on [certain types of]

longstanding regulatory measures”); Chester, 628 F.3d at 679

(Heller “acknowledged that the scope of the Second

Amendment is subject to historical limitations”); Marzzarella,

614 F.3d at 91 (Heller indicates “longstanding limitations are

exceptions to the right to bear arms”); United States v. Rene

E., 583 F.3d 8, 12 (1st Cir. 2009) (Heller “identified limits” of

the Second Amendment based upon “various historical

restrictions on possessing and carrying weapons”). This is a

reasonable presumption because a regulation that is

“longstanding,” which necessarily means it has long been

accepted by the public, is not likely to burden a constitutional

right; concomitantly the activities covered by a longstanding

regulation are presumptively not protected from regulation by

the Second Amendment. A plaintiff may rebut this

15

presumption by showing the regulation does have more than a

de minimis effect upon his right. A requirement of newer

vintage is not, however, presumed to be valid.

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

16

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 statute

delegated the record keeping function to sellers of concealable

firearms, requiring them to “keep a register” recording the

“date of sale, name, age, occupation and residence of every

purchaser of such a [firearm], together with the calibre, make,

model, manufacturer’s number or other mark of identification

on such [firearm],” which register had to be “open at all

reasonable hours for the inspection of any peace officer.” Act

of May 25, 1911, ch. 195, § 2, 1911 N.Y. Laws 444–45.

Similar laws had already been enacted by Illinois, Act of Apr.

16, 1881, ¶ 90, and Georgia, Act of Aug. 12, 1910, No. 432, §

2, 1910 Ga. Laws 134, 135 (official who grants license to

carry pistol or revolver “shall keep a record of the name of the

person taking out such license, the name of the maker of the

fire-arm to be carried, and the caliber and number of the

same”). Other states were soon to do so. See Oregon, Act of

Feb. 21, 1917, ch. 377, 1917 Or. Laws 804, 805–06;

Michigan, Act of June 2, 1927, No. 372, § 9, 1927 Mich.

Laws 887, 891 (“any person within this state who owns or has

in his possession a pistol” must “present such weapon for

safety inspection to the commissioner or chief of police .... A

certificate of inspection shall thereupon be issued ... and kept

as a permanent official record for a period of six years”). In

17

1917 California likewise required the purchaser of a

concealable firearm to give the seller basic information about

himself, including his name, address, occupation, physical

description (height and color of skin, eyes, and hair), and

about the weapon (caliber, make, model, number). Act of

May 4, 1917, ch. 145, § 7, 1917 Cal. Laws 221, 222–23.

Hawaii did the same in 1927, while still a territory, Small

Arms Act, Act 206, § 9, 1927 Haw. Laws 209, 211, as did the

Congress for the District of Columbia in 1932, see Act of July

8, 1932, ch. 465, § 8, 47 Stat. 650, 652.

In sum, the basic requirement to register a handgun is

longstanding in American law, accepted for a century in

diverse states and cities and now applicable to more than one

fourth of the Nation by population. * Therefore, we presume

*

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, N.J. 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 concealable 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

18

the District’s basic registration requirement, D.C. Code § 7-

2502.01(a), including the submission of certain information, §

7-2502.03(b), does not impinge upon the 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. Indeed, basic registration requirements 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. Cf. Rosario v. Rockefeller, 410 U.S. 753, 754–58

(1973) (law “requir[ing] a voter to enroll in the party of his

choice at least 30 days before the general election in

November in order to vote in the next subsequent party

primary” does not violate First and Fourteenth Amendments

because “if [the petitioners’] plight [could] be characterized as

disenfranchisement at all, it was not caused by [the law], but

by their own failure to take timely steps to effect their

enrollment”); id. at 760 (“the State is certainly justified in

imposing some reasonable cutoff point for registration or

party enrollment, which citizens must meet in order to

participate in the next election”); Justice v. Town of Cicero,

577 F.3d 768, 773–74 (7th Cir. 2009) (“ordinance requiring

the registration of all firearms ... appears to be consistent with

the ruling in Heller”). These early registration requirements,

however, applied with only a few exceptions solely to

handguns — that is, pistols and revolvers — and not to long

guns. Consequently, we hold the basic registration

requirements are constitutional only as applied to handguns.

With respect to long guns they are novel, not historic.

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/RegGuns.entire.report.pdf (identifying ten

states).

19

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. **

*

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

20

All of these requirements, such as the mandatory five hours of

firearm training and instruction, § 7-2502.03(a)(13)(A), make

it considerably more difficult for a person lawfully to acquire

and keep a firearm, including a handgun, for the purpose of

self-defense in the home — the “core lawful purpose”

protected by the Second Amendment, Heller, 554 U.S. at 630.

Because they impinge upon that right, we must determine

whether these requirements are constitutional. * In order to do

that, however, we must first determine the degree of scrutiny

to which they are appropriately subject.

b. Intermediate scrutiny is appropriate

The plaintiffs argue strict scrutiny is the appropriate

standard of review because, in holding the Fourteenth

Amendment made the Second Amendment applicable to the

States, the Court in McDonald described the right “to keep

and bear arms [as] among those fundamental rights necessary

to our system of ordered liberty,” 130 S. Ct. at 3042. The

District responds that strict scrutiny would be inappropriate

because, among other reasons, the right to keep and carry

arms has always been heavily regulated; it argues we should

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, 528 F.3d 888, 908

n.11 (D.C. Cir. 2008) (appellant’s argument forfeited “because he

failed to develop it”). As we will in any event be remanding other

registration requirements to the district court, however, see Part

II.B.3.c, we see no reason to foreclose these particular plaintiffs

from fleshing out their arguments as well as supplementing the

record, if they can.

21

adopt a “reasonable-regulation test.” The plaintiffs, in turn,

contend Heller forecloses a “reasonableness” test.

Heller clearly does reject any kind of “rational basis” or

reasonableness test, see 554 U.S. at 628 n.27, but it leaves

open the question what level of scrutiny we are to apply to

laws regulating firearms. True, the Supreme Court often

applies strict scrutiny to legislation that impinges upon a

fundamental right. See, e.g., Clark v. Jeter, 486 U.S. 456, 461

(1988) (“classifications affecting fundamental rights are given

the most exacting scrutiny” (citation omitted)). In applying

strict scrutiny, the Court requires the Government to prove its

law “furthers a compelling interest and is narrowly tailored to

achieve that interest.” Citizens United v. FEC, 130 S. Ct. 876,

898 (2010) (internal quotation marks omitted). The Court has

not said, however, and it does not logically follow, that strict

scrutiny is called for whenever a fundamental right is at stake.

See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) (applying intermediate scrutiny to restrictions on

“time, place, or manner of protected speech”); Marzzarella,

614 F.3d at 96 (“Strict scrutiny does not apply automatically

any time an enumerated right is involved”); Chester, 628 F.3d

at 682 (“We do not apply strict scrutiny whenever a law

impinges upon a right specifically enumerated in the Bill of

Rights”); Adam Winkler, Scrutinizing the Second

Amendment, 105 Mich. L. Rev. 683, 697–98, 700 (2007)

(“mere fact of ‘fundamentality’ does not answer the question

of what would be the appropriate standard of review for the

right to bear arms” as “many of the individual rights in the

Bill of Rights do not trigger strict scrutiny, including many

that are incorporated,” and “[e]ven among those incorporated

rights that do prompt strict scrutiny, such as the freedom of

speech and of religion, strict scrutiny is only occasionally

applied”). Cf. Mills v. Habluetzel, 456 U.S. 91, 98–99 (1982)

(disabilities attendant to illegitimacy are constitutional “to the

22

extent they are substantially related to a legitimate state

interest”); Craig v. Boren, 429 U.S. 190, 197 (1976)

(“classifications by gender must serve important

governmental objectives and must be substantially related to

achievement of those objectives”).

As with the First Amendment, the level of scrutiny

applicable under the Second Amendment surely “depends on

the nature of the conduct being regulated and the degree to

which the challenged law burdens the right.” Chester, 628

F.3d at 682; see also Turner Broad. Sys., Inc. v. FCC (Turner

I), 512 U.S. 622, 642 (1994) (“regulations that are unrelated

to the content of speech are subject to an intermediate level of

scrutiny because in most cases they pose a less substantial risk

of excising certain ideas or viewpoints from the public

dialogue” (citation omitted)); Zauderer v. Office of

Disciplinary Counsel of Supreme Court of Ohio, 471 U.S.

626, 651 (1985) (“We recognize that unjustified or unduly

burdensome disclosure requirements might offend the First

Amendment by chilling protected commercial speech. But

we hold that an advertiser’s rights are adequately protected as

long as disclosure requirements are reasonably related to the

State’s interest in preventing deception of consumers.”);

Nelson Lund, The Second Amendment, Heller, and Originalist

Jurisprudence, 56 UCLA L. Rev. 1343, 1376 (2009) (“The

case law dealing with free speech and the free exercise of

religion provides a particularly good analogue” for Second

Amendment). That is, a regulation that imposes a substantial

burden upon the core right of self-defense protected by the

Second Amendment must have a strong justification, whereas

a regulation that imposes a less substantial burden should be

proportionately easier to justify. See Turner I, 512 U.S. at

661 (“must-carry provisions do not pose such inherent

dangers to free expression ... as to justify application of the

most exacting level of First Amendment scrutiny”; rather,

23

“the appropriate standard ... is the intermediate level of

scrutiny applicable to content-neutral restrictions that impose

an incidental burden on speech”); Board of Trustees of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989) (“commercial

speech [enjoys] a limited measure of protection,

commensurate with its subordinate position in the scale of

First Amendment values” (internal quotation marks omitted));

Buckley v. Valeo, 424 U.S. 1, 44–45 (1976) (“expenditure

limitations” are subject to “exacting scrutiny applicable to

limitations on core First Amendment rights of political

expression” because they impose a “great[] burden on basic

freedoms”); Ezell, 2011 WL 2623511, at *13 (level of

scrutiny “will depend on how close the law comes to the core

of the Second Amendment right and the severity of the law’s

burden on the right”); see also 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, 1471 (2009) (“Ballot access regulations are ...

subject to strict scrutiny if they ‘impose a severe burden on

associational rights,’ but to a much weaker level of scrutiny if

they ‘impose[] only modest burdens’” (quoting Wash. State

Grange v. Wash. State Republican Party, 128 S. Ct. 1184,

1191–92 (2008))); Winkler, supra, at 698 (“Strict scrutiny ...

does not apply to fundamental, preferred rights when the

courts determine that the underlying burden is only

incidental”).

As between strict and intermediate scrutiny, we conclude

the latter is the more appropriate standard for review of gun

registration laws. As the Third Circuit reasoned in

Marzzarella with regard to a prohibition on possession of a

firearm with the serial numbers obliterated, registration

requirements “do[] not severely limit the possession of

firearms.” 614 F.3d at 97. Indeed, none of the District’s

registration requirements prevents an individual from

24

possessing a firearm in his home or elsewhere, whether for

self-defense or hunting, or any other lawful purpose.

c. Intermediate scrutiny requires remand

As for the novel registration requirements, to pass muster

under intermediate scrutiny the District must show they are

“substantially related to an important governmental

objective.” Clark, 486 U.S. at 461; see also United States v.

Williams, 616 F.3d 685, 692–94 (7th Cir. 2010) (prohibition

of firearm possession by felons survives intermediate

scrutiny). That is, the District must establish a tight “fit”

between the registration requirements and an important or

substantial governmental interest, a fit “that employs not

necessarily the least restrictive means but ... a means narrowly

tailored to achieve the desired objective.” Fox, 492 U.S. at

480; see also Ward, 491 U.S. at 782–83 (“The requirement of

narrow tailoring is satisfied so long as the regulation promotes

a substantial governmental interest that would be achieved

less effectively absent the regulation, and the means chosen

are not substantially broader than necessary to achieve that

interest”). We think the District has advanced, albeit

incompletely — almost cursorily — articulated, two

important governmental interests it may have in the

registration requirements, viz., to protect police officers and to

aid in crime control. Cf. United States v. Salerno, 481 U.S.

739, 750 (1987) (“the Government’s general interest in

preventing crime is compelling”). The Council Committee on

Public Safety explained: “Registration is critical because it ...

allows officers to determine in advance whether individuals

involved in a call may have firearms ... [and] assists law

enforcement in determining whether registered owners are

25

eligible to possess firearms or have fallen into a prohibited

class.” * Report on Bill 17-843, at 3–4 (Nov. 25, 2008).

We cannot conclude, however, that the novel registration

requirements — or any registration requirement as applied to

long guns — survive intermediate scrutiny based upon the

record as it stands because the District has not demonstrated a

close fit between those requirements and its governmental

interests. In support of the registration requirements, the

District relies upon the Committee Report on the FRA, along

with testimony and written statements submitted to the

Committee at public hearings. Even so, the record is

inadequate for us confidently to hold the registration

requirements are narrowly tailored.

For example, the Committee Report asserts “studies

show” that “laws restricting multiple purchases or sales of

firearms are designed to reduce the number of guns entering

the illegal market and to stem the flow of firearms between

states,” and that “handguns sold in multiple sales to the same

individual purchaser are frequently used in crime.” Id. at 10.

The Report neither identifies the studies relied upon nor

claims those studies showed the laws achieved their purpose,

*

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.

26

nor in any other way attempts to justify requiring a person

who registered a pistol to wait 30 days to register another one.

The record does include testimony that offers cursory

rationales for some other requirements, such as safety training

and demonstrating knowledge of gun laws, see, e.g.,

Testimony of Cathy L. Lanier, Chief of Police, at 2 (Oct. 1,

2008), but the District fails to present any data or other

evidence to substantiate its claim that these requirements can

reasonably be expected to promote either of the important

governmental interests it has invoked (perhaps because it was

relying upon the asserted interests we have discounted as

circular).

Although we do “accord substantial deference to the

predictive judgments” of the legislature, Turner Broad. Sys.,

Inc. v. FCC (Turner II), 520 U.S. 180, 195 (1997) (quoting

Turner I, 512 U.S. at 665) (internal quotation marks omitted),

the District is not thereby “insulated from meaningful judicial

review,” Turner I, 512 U.S. at 666 (controlling opinion of

Kennedy, J.); see also City of Los Angeles v. Alameda Books,

Inc., 535 U.S. 425, 440 (2002) (plurality opinion) (citing

Turner I and “acknowledg[ing] that the Los Angeles City

Council is in a better position than the Judiciary to gather and

evaluate data on local problems”). Rather, we must “assure

that, in formulating its judgments, [the legislature] has drawn

reasonable inferences based on substantial evidence.” Turner

II, 520 U.S. at 195 (quoting Turner I, 512 U.S. at 666)

(internal quotation marks omitted). Therefore, the District

needs to present some meaningful evidence, not mere

assertions, to justify its predictive judgments. On the present

record, we conclude the District has not supplied evidence

adequate to show a substantial relationship between any of the

novel registration requirements and an important

governmental interest.

27

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. * The Committee

Report implicitly acknowledged the distinction between

handguns and long guns only back-handedly, quoting Heller

to emphasize specifically “the problem of handgun violence

in this country” before discussing the proposed FRA. Report

on Bill 17-843, at 3 (Nov. 25, 2008). Handguns indeed

appear to have been the exclusive subject of the Committee’s

concern. Nowhere in the Report is there even a single

reference to the need for registration of rifles or shotguns. For

all the legislative record and the record in this case reveal, the

provisions of the FRA that deal specifically with registration

of long guns might have been written in invisible ink.

In the light of these evidentiary deficiencies and “the

importance of the issues” at stake in this case, taking our cue

from the Supreme Court in Turner I, we believe the parties

should have an opportunity “to develop a more thorough

factual record.” 512 U.S. at 664–68 (controlling opinion of

Kennedy, J.). In Turner I, the Court had determined

intermediate scrutiny was appropriate for the First

Amendment challenge at issue. “On the state of the record

developed [that] far,” however, the Government was unable to

show the law was narrowly tailored. Id. at 665. Rather than

invalidate a legislative judgment based upon that

*

While the Court in Heller observed that the handgun is “the

quintessential self-defense weapon,” 554 U.S. at 629, a rifle or

shotgun is the firearm of choice for hunting, which activity Heller

recognized as providing one basis for the right to keep and bear

arms, albeit not the central one, id. at 599.

28

shortcoming, the Court remanded the case for development of

“a more thorough factual record.” Id. at 668. We follow suit

by remanding the novel registration requirements, and all

registration requirements as applied to long guns, to the

district court for further evidentiary proceedings.

4. Assault Weapons and Large-Capacity Magazines

Because the plaintiffs fail to present an argument in their

briefs questioning the constitutionality of the ban on semi-

automatic pistols and shotguns, see page 7 footnote * above,

we construe the plaintiffs’ challenge to the ban on assault

weapons as going only to the prohibition of certain semi-

automatic rifles. We are not aware of evidence that

prohibitions on either semi-automatic rifles or large-capacity

magazines are longstanding and thereby deserving of a

presumption of validity. * For the court to determine whether

these prohibitions are constitutional, therefore, we first must

ask whether they impinge upon the right protected by the

Second Amendment. That is, prohibiting certain arms might

not meaningfully affect “individual self-defense, [which] is

‘the central component’ of the Second Amendment right.”

McDonald, 130 S. Ct. at 3036 (quoting Heller, 554 U.S. at

599). Of course, the Court also said the Second Amendment

protects the right to keep and bear arms for other “lawful

purposes,” such as hunting, but self-defense is the “core

lawful purpose” protected, Heller, 554 U.S. at 630.

*

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 ... semiautomatically 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.”

29

The Court in Heller, as mentioned above at pages 12–13,

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. The Court found this

limitation “fairly supported by the historical tradition of

prohibiting the carrying of ‘dangerous and unusual

weapons.’” Id. at 627. Because the prohibitions at issue,

unlike the registration requirements, apply only to particular

classes of weapons, we must also ask whether the prohibited

weapons are “typically possessed by law-abiding citizens for

lawful purposes,” id. at 625; if not, then they are not the sorts

of “Arms” protected by the Second Amendment.

a. Do the prohibitions impinge upon the Second

Amendment right?

The plaintiffs contend semi-automatic rifles, in particular

the AR variants, are commonly possessed for self-protection

in the home as well as for sport. They also argue magazines

holding more than ten rounds are commonly possessed for

self-defense and for other lawful purposes and that the

prohibition of such magazines would impose a burden upon

them. Specifically, they point out that without a large-

capacity magazine it would be necessary, in a stressful

situation, to pause in order to reload the firearm.

The District, by contrast, argues neither assault weapons

nor weapons with large-capacity magazines are among the

“Arms” protected by the Second Amendment because they

are both “dangerous and unusual,” Heller, 554 U.S. at 627

(internal quotation marks omitted), and because prohibiting

them minimally burdens the plaintiffs; hence the District

maintains the bans are constitutional. The Committee on

Public Safety received evidence that assault weapons are not

30

useful for the purposes of sporting or self-defense, but rather

are “military-style” weapons designed for offensive use. See

generally Testimony of Brian J. Siebel, Brady Center to

Prevent Gun Violence (Oct. 1, 2008). The Committee

concluded assault weapons “have no legitimate use as self-

defense weapons, and would in fact increase the danger to

law-abiding users and innocent bystanders if kept in the home

or used in self-defense situations.” Report on Bill 17-843, at

7 (Nov. 25, 2008).

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

31

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 quintessential self-defense

weapon,” to wit, the handgun. 554 U.S. at 629. Nor does the

ban on certain semi-automatic rifles prevent a person from

keeping a suitable and commonly used weapon for protection

in the home or for hunting, whether a handgun or a non-

automatic long gun. See Gary Kleck & Marc Gertz, Armed

Resistance to Crime: The Prevalence and Nature of Self-

Defense with a Gun, 86 J. Crim. L. & Criminology 150, 185

(1995) (revolvers and semi-automatic pistols are together

used almost 80% of the time in incidents of self-defense with

a gun); Dep’t of Treasury, Study on the Sporting Suitability of

Modified Semiautomatic Assault Rifles 38 (1998) (semi-

automatic assault rifles studied are “not generally recognized

as particularly suitable for or readily adaptable to sporting

32

purposes”). Although we cannot be confident the prohibitions

impinge at all upon the core right protected by the Second

Amendment, we are reasonably certain the prohibitions do not

impose a substantial burden upon that right. As the District

points out, the plaintiffs present hardly any evidence that

semi-automatic rifles and magazines holding more than ten

rounds are well-suited to or preferred for the purpose of self-

defense or sport. Cf. Kleck & Gertz, supra, at 177 (finding

that of 340,000 to 400,000 instances of defensive gun use in

which the defenders believed the use of a gun had saved a

life, 240,000 to 300,000 involved handguns). Accordingly,

we believe intermediate rather than strict scrutiny is the

appropriate standard of review.

In this we agree with the reasoning of the Third Circuit in

Marzzarella. The court there applied intermediate scrutiny to

the prohibition of unmarked firearms in part because it

thought the ban was similar to a regulation “of the manner in

which ... speech takes place,” a type of regulation subject to

intermediate scrutiny “under the time, place, and manner

doctrine” of the First Amendment. 614 F.3d at 97. Notably,

because the prohibition left a person “free to possess any

otherwise lawful firearm,” the court reasoned it was “more

accurately characterized as a regulation of the manner in

which persons may lawfully exercise their Second

Amendment rights.” Id. Here, too, the prohibition of semi-

automatic rifles and large-capacity magazines does not

effectively disarm individuals or substantially affect their

ability to defend themselves. See Volokh, supra, at 1471

(“where content-neutral speech restrictions are involved,

restrictions that impose severe burdens (because they don’t

leave open ample alternative channels) must be judged under

strict scrutiny, but restrictions that impose only modest

burdens (because they do leave open ample alternative

33

channels) are judged under a mild form of intermediate

scrutiny”).

c. The prohibitions survive intermediate scrutiny

Recall that when subject to intermediate scrutiny the

Government has the burden of showing there is a substantial

relationship or reasonable “fit” between, on the one hand, the

prohibition on assault weapons and magazines holding more

than ten rounds and, on the other, its important interests in

protecting police officers and controlling crime. The record

evidence substantiates that the District’s prohibition is

substantially related to those ends.

The Committee on Public Safety relied upon a report by

the ATF, which described assault weapons as creating “mass

produced mayhem.” Assault Weapons Profile 19 (1994).

This description is elaborated in the Siebel testimony for the

Brady Center: “the military features of semiautomatic assault

weapons are designed to enhance their capacity to shoot

multiple human targets very rapidly” and “[p]istol grips on

assault rifles ... help stabilize the weapon during rapid fire and

allow the shooter to spray-fire from the hip position.” The

same source also suggests assault weapons are preferred by

criminals and place law enforcement officers “at particular

risk ... because of their high firepower,” as does the ATF, see

Dep’t of Treasury, Study on the Sporting Suitability of

Modified Semiautomatic Assault Rifles 34–35, 38 (1998). See

also Christopher S. Koper et al., U. Penn. Jerry Lee Ctr. of

Criminology, An Updated Assessment of the Federal Assault

Weapons Ban: Impacts on Gun Markets and Gun Violence,

1994–2003, at 51, 87 (2004) (assault weapons “account for a

larger share of guns used in mass murders and murders of

police, crimes for which weapons with greater firepower

would seem particularly useful,” and “criminal use of [assault

34

weapons] ... declined after” the federal assault weapons ban

enacted in 1994 “independently of trends in gun crime”); id.

at 11 (“AR-15 type rifles are civilian weapons patterned after

the U.S. military’s M-16 rifle and were the assault rifles most

commonly used in crime before the ban” in federal law from

1994 to 2004).

Heller suggests “M-16 rifles and the like” may be banned

because they are “dangerous and unusual,” see 554 U.S. at

627. The Court had previously described the “AR-15” as “the

civilian version of the military’s M-16 rifle.” Staples v.

United States, 511 U.S. 600, 603 (1994). Although semi-

automatic firearms, unlike automatic M-16s, fire “only one

shot with each pull of the trigger,” id. at 602 n.1, semi-

automatics still fire almost as rapidly as automatics. See

Testimony of Brian J. Siebel, Brady Center to Prevent Gun

Violence, at 1 (Oct. 1, 2008) (“30-round magazine” of UZI

“was emptied in slightly less than two seconds on full

automatic, while the same magazine was emptied in just five

seconds on semiautomatic”). Indeed, it is difficult to draw

meaningful distinctions between the AR-15 and the M-16.

See Staples, 511 U.S. at 603 (“Many M-16 parts are

interchangeable with those in the AR-15 and can be used to

convert the AR-15 into an automatic weapon”); Koper, supra,

at 4 (AR-15 and other federally banned assault weapons “are

civilian copies of military weapons and accept ammunition

magazines made for those military weapons”). In short, the

evidence demonstrates a ban on assault weapons is likely to

promote the Government’s interest in crime control in the

densely populated urban area that is the District of Columbia.

See Comm. on Pub. Safety, Report on Bill 17-593, at 4 (Nov.

25, 2008) (“The District shares the problem of gun violence

with other dense, urban jurisdictions”).

35

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 semiautomatics — including [assault

weapons] and other semiautomatics 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 tendency is for defenders to keep

firing until all bullets have been expended, which poses grave

risks to others in the household, passersby, and bystanders.”

Moreover, the Chief of Police testified the “2 or 3 second

pause” during which a criminal reloads his firearm “can be of

critical benefit to law enforcement.” Overall the evidence

demonstrates that large-capacity magazines tend to pose a

danger to innocent people and particularly to police officers,

which supports the District’s claim that a ban on such

magazines is likely to promote its important governmental

interests.

We conclude the District has carried its burden of

showing a substantial relationship between the prohibition of

both semi-automatic rifles and magazines holding more than

ten rounds and the objectives of protecting police officers and

controlling crime. Accordingly, the bans do not violate the

plaintiffs’ constitutional right to keep and bear arms.

36

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)(11), 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

37

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.” 554 U.S. at 689–90

(Breyer J., dissenting). That is, Justice Breyer, rather than ask

merely whether the Government is promoting an important

interest by way of a narrowly tailored means, as we do here,

would have had courts in Second Amendment cases decide

whether the challenged statute “imposes burdens that, when

viewed in light of the statute’s legitimate objectives, are

disproportionate.” Id. at 693. Thus, although Justice Breyer

would have had us assess whether the District’s handgun ban

“further[s] the sort of life-preserving and public-safety

interests that the Court has called ‘compelling,’” id. at 705

(citation omitted), the key to his “interest-balancing”

approach was “proportionality”; that is, he would have had us

weigh this governmental interest against “the extent to which

the District’s law burdens the interests that the Second

Amendment seeks to protect,” id. at 706.

Our dissenting colleague asserts (at 25) heightened

scrutiny is also “a form of interest balancing” and maintains

that strict and intermediate scrutiny “always involve at least

some assessment of whether the law in question is sufficiently

important to justify infringement on an individual

constitutional right.” Although, as he points out, the Supreme

Court has in a few opinions applying heightened scrutiny —

out of scores if not hundreds of such opinions — used the

word “balance,” heightened scrutiny is clearly not the

“interest-balancing inquiry” proposed by Justice Breyer and

rejected by the Court in Heller. The Court there said, Justice

Breyer’s proposal did not correspond to any of “the

traditionally expressed levels (strict scrutiny, intermediate

38

scrutiny, rational basis),” 554 U.S. at 634, but was rather “a

judge-empowering ‘interest-balancing inquiry’” that would

have a court weigh the asserted governmental interests against

the burden the Government would place upon exercise of the

Second Amendment right, a balancing that is not part of either

strict or intermediate scrutiny.

The dissent further contends McDonald confirms the

Supreme Court’s rejection of heightened scrutiny in Second

Amendment cases because a plurality of the Court there said

“Justice Breyer is incorrect that incorporation will require

judges to assess the costs and benefits of firearms restrictions

and thus to make difficult empirical judgments in an area in

which they lack expertise.” 130 S. Ct. at 3050. That

observation was clearly and specifically directed to Justice

Breyer’s interest-balancing inquiry, as the very next sentence

shows: “As we have noted, while his opinion in Heller

recommended an interest-balancing test, the Court

specifically rejected that suggestion.” Id. Moreover, strict

and intermediate scrutiny do not, as the dissent asserts (at 19),

“obviously require assessment of the ‘costs and benefits’ of

government regulations.” Rather, they require an assessment

of whether a particular law will serve an important or

compelling governmental interest; that is not a comparative

judgment.

If the Supreme Court truly intended to rule out any form

of heightened scrutiny for all Second Amendment cases, then

it surely would have said at least something to that effect. Cf.

Heller, 554 U.S. at 628 n.27 (expressly rejecting rational basis

review). The Court did not say anything of the sort; the

plaintiffs in this case do not suggest it did; and the idea that

Heller precludes heightened scrutiny has eluded every circuit

to have addressed that question since Heller was issued. See

First Circuit: United States v. Booker, 644 F.3d 12, 25 (2011)

39

(requiring “a substantial relationship between the restriction

and an important governmental objective”); Third Circuit:

Marzzarella, 614 F.3d at 97 (applying intermediate scrutiny);

Fourth Circuit: United States v. Masciandaro, 638 F.3d 458,

471 (2011) (same); Chester, 628 F.3d at 683 (same); id. at

690 (Davis, J., concurring) (same); Seventh Circuit: Ezell,

2011 WL 2623511, at *17 (applying “more rigorous

showing” than intermediate scrutiny, “if not quite ‘strict

scrutiny’”); id. at *21–22 (Rovner J., concurring) (endorsing

intermediate scrutiny); Williams, 616 F.3d at 692–93

(applying intermediate scrutiny); United States v. Skoien, 614

F.3d 638, 641–42 (2010) (en banc) (upholding law upon

assumption intermediate scrutiny applies); Ninth Circuit:

Nordyke, 644 F.3d at 786 n.9 (reserving “precisely what type

of heightened scrutiny applies to laws that substantially

burden Second Amendment rights”); id. at 795 (Gould J.,

concurring in part, “would subject to heightened scrutiny only

arms regulations falling within the core purposes of the

Second Amendment” and “would subject incidental burdens

on the Second Amendment right ... to reasonableness

review”); Tenth Circuit: Reese, 627 F.3d at 802 (applying

intermediate scrutiny).

The dissent (at 30–31) takes us to task for suggesting a

restriction on a core enumerated constitutional right can be

subjected to intermediate scrutiny. This assertion, true or

false, is simply misplaced; we apply intermediate scrutiny

precisely because the District’s laws do not affect the core

right protected by the Second Amendment. See supra at 22–

24, 31–32.

Unlike our dissenting colleague, we read Heller

straightforwardly: The Supreme Court there left open and

untouched even by implication the issue presented in this

case. The Court held the ban on handguns unconstitutional

40

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 (internal quotation

marks and citation omitted); McDonald, 130 S. Ct. at 3036

(quoting Heller, 554 U.S. at 628–30). Nothing in Heller

suggests a case involving a restriction significantly less severe

than the total prohibition of handguns at issue there could or

should be resolved without reference to one or another of the

familiar constitutional “standards of scrutiny.” On the

contrary, the Supreme Court was explicit in cautioning that

because Heller was its “first in-depth examination of the

Second Amendment, one should not expect it to clarify the

entire field.” Heller, 554 U.S. at 635; see also, e.g., Ezell,

2011 WL 2623511, at *13 (with the exception of “broadly

prohibitory laws restricting the core Second Amendment

right,” courts are “left to choose an appropriate standard of

review from among the heightened standards of scrutiny the

Court applies to governmental actions alleged to infringe

enumerated constitutional rights”); Chester, 628 F.3d at 682

(“Heller left open the level of scrutiny applicable to review a

law that burdens conduct protected under the Second

Amendment, other than to indicate that rational-basis review

would not apply in this context”); Volokh, supra, at 1456

(“The Court [in Heller] did not discuss what analysis would

be proper for less ‘severe’ restrictions, likely because it had

no occasion to”).

Having rejected the possibility of heightened scrutiny, the

dissent (at 31) goes on to find in Heller this proposition: “Gun

bans and gun regulations that are not longstanding or

sufficiently rooted in text, history, and tradition are not

41

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,” 554 U.S. at 626–27 & n.26, but it nowhere suggested,

nor does it follow logically, that a regulation must be

longstanding or “rooted in text, history, and tradition” in order

to be constitutional. As we have said, the Court struck down

the handgun ban because it so severely restricted the core

Second Amendment right of self-defense in the home that it

“would fail constitutional muster” under any standard of

scrutiny. Likewise, the Court invalidated the District’s

requirement that handguns “in the home be rendered and kept

inoperable” because that requirement “makes it impossible for

citizens to use them for the core lawful purpose of self-

defense.” Id. at 630. The Court in Heller did consider

whether there were historical analogues to the handgun ban,

but only to note, primarily in response to Justice Breyer’s

dissent, that because earlier laws were far less restrictive, they

did not support the constitutionality of a ban on handguns.

See id. at 632 (“Nothing about [the] fire-safety laws” cited by

Justice Breyer “undermines our analysis; they do not remotely

burden the right of self-defense as much as an absolute ban on

handguns”); id. (“other founding-era laws” cited by Justice

Breyer “provide no support for the severe restriction in the

present case”). In any event, we think it clear Heller did not

announce the “up-front” test applicable to all Second

Amendment cases that our dissenting colleague goes to great

lengths to “divine” from that opinion.

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

42

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 47) the historical

registration laws we cite do not support the District’s basic

registration requirement because to rely upon those laws as

historical precedents “is to conduct the Heller analysis at an

inappropriately high level of generality.” In fact, however,

the historical regulations and the District’s basic registration

requirement are not just generally alike, they are practically

identical: They all require gun owners to give an agent of the

Government basic information about themselves and their

firearm.

In any event, we do not decide, but rather remand to the

district court, the question whether the District’s novel

registration requirements and all its registration requirements

as applied to long guns withstand intermediate scrutiny. See

supra at 28. Accordingly, those registration requirements will

be deemed constitutional only if the District shows they serve

its undoubtedly important governmental interests in

preventing crimes and protecting police officers.

C. Assault Weapons

In arguing Heller requires holding unconstitutional the

District’s ban on certain semi-automatic rifles, the dissent

relies heavily upon the idea that Heller held possession of

semi-automatic handguns is “constitutionally protected.” The

Court’s holding in Heller was in fact narrower, condemning

as unconstitutional a prohibition of all handguns, that is, a ban

43

on the “entire class of ‘arms’ that is overwhelmingly chosen

by American society for [the] lawful purpose” of self-defense.

554 U.S. at 628. A narrower prohibition, such as a ban on

certain semi-automatic pistols, may also “fail constitutional

muster,” id., but that question has not yet been decided by the

Supreme Court. * Therefore, the dissent (at 32–33)

mischaracterizes the question before us as whether “the

Second Amendment protects semi-automatic handguns but

not semi-automatic rifles.” The dissent at (38 n.16) insists it

is “implausible” to read Heller as “protect[ing] handguns that

are revolvers but not handguns that are semi-automatic.” We

do not, however, hold possession of semi-automatic handguns

is outside the protection of the Second Amendment. We

simply do not read Heller as foreclosing every ban on every

possible sub-class of handguns or, for that matter, a ban on a

sub-class of rifles. See Marzzarella, 614 F.3d at 101

(upholding prohibition on possession of handguns with serial

numbers obliterated); cf. Joseph Blocher, Categoricalism and

Balancing in First and Second Amendment Analysis, 84

N.Y.U. L. Rev. 375, 422 (2009) (Heller “avoided—perhaps in

part because it had little cause to consider—categorization at

the level of classification: that is, the creation of subcategories

that may warrant only intermediate protection”). **

*

Indeed, as we noted in Part I, the present plaintiffs, whilst in the

district court, separately and specifically challenged the ban on

certain semi-automatic pistols.

**

Moreover, despite the dissent’s contrary assertion (at 36), 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 semiautomatic

firearms, including AR-15); Cal. Penal Code §§ 12276–12282

44

The dissent, indulging us by assuming some level of

heightened scrutiny applies, maintains (at 37) “D.C. cannot

show a compelling interest in banning semi-automatic rifles.”

Why not? “[B]ecause the necessary implication of the

decision in Heller is that D.C. could not show a sufficiently

compelling interest to justify its banning semi-automatic

handguns.” That conclusion, however, is neither to be found

in nor inferred from Heller. As we explain above, the Court

in Heller held the District’s ban on all handguns would fail

constitutional muster under any standard of scrutiny because

the handgun is the “quintessential” self-defense weapon. See

554 U.S. at 629 (“There are many reasons that a citizen may

prefer a handgun for home defense: It is easier to store in a

location that is readily accessible in an emergency; it cannot

easily be redirected or wrestled away by an attacker; it is

easier to use for those without the upper-body strength to lift

(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, Ill., 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 very 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)(1) (prohibiting possession of semi-

automatic rifles and pistols, including AR-15).

45

and aim a long gun; it can be pointed at a burglar with one

hand while the other hand dials the police”). The same cannot

be said of semi-automatic rifles.

Finally, in criticizing our application of intermediate

scrutiny to the ban on assault weapons, our dissenting

colleague says (at 33, 40) “it is difficult to make the case that

semi-automatic rifles are significantly more dangerous than

semi-automatic handguns” “because handguns can be

concealed.” It is not our place, however, to determine in the

first instance whether banning semi-automatic rifles in

particular would promote important law-enforcement

objectives. Our role is narrower, viz., to determine whether

the District has presented evidence sufficient to “establish the

reasonable fit we require” between the law at issue and an

important or substantial governmental interest. Fox, 492 U.S.

at 480.

KAVANAUGH, Circuit Judge, dissenting: The 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.” 554 U.S. 570, 595 (2008). In

McDonald v. City of Chicago, the Court added that the right

to keep and bear arms is a “fundamental” constitutional right

implicit in our scheme of ordered liberty and “deeply rooted

in this Nation’s history and tradition.” 130 S. Ct. 3020, 3036,

3042 (2010).

In Heller, the Court ruled that the District of Columbia’s

ban on the possession of handguns violated the Second

Amendment. 554 U.S. at 635. In the wake of Heller, the

District of Columbia enacted a new gun law. As relevant

here, D.C. bans possession of most semi-automatic rifles and

requires registration of all guns possessed in the District of

Columbia. See D.C. Code §§ 7-2501.01(3A)(A)(i),

7-2502.01-.10.

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.

2

In my judgment, both D.C.’s ban on semi-automatic

rifles and its gun registration requirement are unconstitutional

under Heller.

In Heller, the Supreme Court held that handguns – the

vast majority of which today are semi-automatic – are

constitutionally protected because they have not traditionally

been banned and are in common use by law-abiding citizens.

There is no meaningful or persuasive constitutional

distinction between semi-automatic handguns and semi-

automatic rifles. Semi-automatic rifles, like semi-automatic

handguns, have not traditionally been banned and are in

common use by law-abiding citizens for self-defense in the

home, hunting, and other lawful uses. Moreover, semi-

automatic handguns are used in connection with violent

crimes far more than semi-automatic rifles are. It follows

from Heller’s protection of semi-automatic handguns that

semi-automatic rifles are also constitutionally protected and

that D.C.’s ban on them is unconstitutional. (By contrast,

fully automatic weapons, also known as machine guns, have

traditionally been banned and may continue to be banned after

Heller.) 1

D.C.’s registration requirement, which is significantly

more stringent than any other federal or state gun law in the

United States, is likewise unconstitutional. Heller and later

McDonald said that regulations on the sale, possession, or use

1

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, 511 U.S. 600, 602 n.1 (1994). A fully

automatic gun – also known as a machine gun – “fires repeatedly

with a single pull of the trigger. That is, once its trigger is

depressed, the weapon will automatically continue to fire until its

trigger is released or the ammunition is exhausted.” Id.

3

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. 2

It bears emphasis that Heller, while enormously

significant jurisprudentially, was not revolutionary in terms of

its immediate real-world effects on American gun regulation.

Indeed, Heller largely preserved the status quo of gun

regulation in the United States. Heller established that

traditional and common gun laws in the United States remain

constitutionally permissible. The Supreme Court simply

pushed back against an outlier local law – D.C.’s handgun ban

– that went far beyond the traditional line of gun regulation.

As Heller emphasized: “Few laws in the history of our

Nation have come close to the severe restriction of the

District’s” law. 554 U.S. at 629. 3

2

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.

3

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, 131 S. Ct. 2729

(2011); Graham v. Florida, 130 S. Ct. 2011 (2010); Kennedy v.

Louisiana, 554 U.S. 407 (2008); and Romer v. Evans, 517 U.S. 620

(1996). Those decisions disapproved novel or uncommon state

legislative efforts to regulate beyond traditional boundaries in areas

that affected enumerated individual constitutional rights –

California’s law banning sale of violent video games, Florida’s law

permitting life without parole for certain juvenile crimes,

Louisiana’s law permitting the death penalty for certain rapes, and

4

After Heller, however, D.C. seemed not to heed the

Supreme Court’s message. Instead, D.C. appeared to push the

envelope again, with its new ban on semi-automatic rifles and

its broad gun registration requirement. D.C.’s public safety

motivation in enacting these laws is worthy of great respect.

But the means D.C. has chosen are again constitutionally

problematic. The D.C. gun provisions at issue here, like the

ban at issue in Heller, are outliers that are not traditional or

common in the United States. As with D.C.’s handgun ban,

therefore, holding these D.C. laws unconstitutional would not

lead to nationwide tumult. Rather, such a holding would

maintain the balance historically and traditionally struck in

the United States between public safety and the individual

right to keep arms – a history and tradition that Heller

affirmed and adopted as determining the scope of the Second

Amendment right.

I

A key threshold question in this case concerns the

constitutional test we should employ to assess the challenged

provisions of the D.C. gun law. The Heller Court held that

the Second Amendment guarantees an individual right to

Colorado’s law prohibiting gay people from receiving protection

from discrimination. Because those laws were outliers, the

decisions invalidating them did not cause major repercussions

throughout the Nation. Heller was a decision in that same vein, in

terms of its immediate practical effects in the United States. By

contrast, of course, some Supreme Court decisions interpreting the

Constitution’s individual rights provisions not only are significant

jurisprudentially but also have substantial practical impacts on

common federal or state practices. See, e.g., Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527 (2009); Arizona v. Gant, 556 U.S.

332 (2009); United States v. Booker, 543 U.S. 220 (2005). Heller

was not a decision of that kind.

5

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, 554 U.S.

570, 626 (2008). “Like most rights, the right secured by the

Second Amendment is not unlimited.” Id.

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

6

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

weapons that” citizens typically “possess[] at home.” 554

U.S. at 627. The Court said that “dangerous and unusual

weapons” are equivalent to those weapons not “in common

use,” as the latter phrase was used in United States v. Miller,

307 U.S. 174, 179 (1939). Heller, 554 U.S. at 627. Thus, the

“Second Amendment does not protect those weapons not

typically possessed by law-abiding citizens for lawful

purposes, such as short-barreled shotguns” or automatic “M-

16 rifles and the like.” Id. at 625, 627. That interpretation,

the Court explained, “accords with the historical

understanding of the scope of the right.” Id. at 625.

“Constitutional rights,” the Court said, “are enshrined with the

scope they were understood to have when the people adopted

them, whether or not future legislatures or (yes) even future

judges think that scope too broad.” Id. at 634-35. The scope

of the right is thus determined by “historical justifications.”

Id. at 635. And tradition (that is, post-ratification history)

also matters because “examination of a variety of legal and

other sources to determine the public understanding of a legal

text in the period after its enactment or ratification” is a

“critical tool of constitutional interpretation.” Id. at 605

(emphasis omitted).

Because the D.C. law at issue in Heller banned handguns

(including semi-automatic handguns), which have not

7

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, the Court stated that “[f]ew laws in the

history of our Nation have come close to the severe restriction

of the District’s” law, id. at 629.

As to regulations on the sale, possession, or use of guns,

Heller similarly said the government may continue to impose

regulations that are traditional, “longstanding” regulations in

the United States. Id. at 626-27. In McDonald, the Court

reiterated that “longstanding regulatory measures” are

permissible. McDonald v. City of Chicago, 130 S. Ct. 3020,

3047 (2010) (controlling opinion of Alito, J.). Importantly,

the Heller Court listed several examples of such longstanding

(and therefore constitutionally permissible) regulations, such

as laws against concealed carry and laws prohibiting

possession of guns by felons. 554 U.S. at 626. The Court

stated that analysis of whether other gun regulations are

permissible must be based on their “historical justifications.”

Id. at 635. 4

4

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

8

In disapproving D.C.’s ban on handguns, in approving a

ban on machine guns, and in approving longstanding

regulations such as concealed-carry and felon-in-possession

laws, Heller established that the scope of the Second

Amendment right – and thus the constitutionality of gun bans

and regulations – is determined by reference to text, history,

and tradition. As to the ban on handguns, for example, the

Supreme Court in Heller never asked whether the law was

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. Miller said, as we have

explained, that the sorts of weapons protected were those “in

common use at the time.” We think that limitation is fairly

supported by the historical tradition of prohibiting the carrying

of “dangerous and unusual weapons.”

554 U.S. at 626-27 (citations and footnote omitted). The Court in

McDonald reiterated:

As evidence that the Fourteenth Amendment has not

historically been understood to restrict the authority of the

States to regulate firearms, municipal respondents and

supporting amici cite a variety of state and local firearms laws

that courts have upheld. But what is most striking about their

research is the paucity of precedent sustaining bans

comparable to those at issue here and in Heller. . . . We made

it clear in Heller that our holding did not cast doubt on such

longstanding regulatory measures as “prohibitions on the

possession of firearms by felons and the mentally ill,” “laws

forbidding the carrying of firearms in sensitive places such as

schools and government buildings, or laws imposing

conditions and qualifications on the commercial sale of arms.”

130 S. Ct. at 3047 (controlling opinion of Alito, J.) (quoting Heller,

554 U.S. at 626-27).

9

narrowly tailored to serve a compelling government interest

(strict scrutiny) or substantially related to an important

government interest (intermediate scrutiny). If the Supreme

Court had meant to adopt one of those tests, it could have said

so in Heller and measured D.C.’s handgun ban against the

relevant standard. But the Court did not do so; it instead

determined that handguns had not traditionally been banned

and were in common use – and thus that D.C.’s handgun ban

was unconstitutional.

Moreover, in order for the Court to prospectively approve

the constitutionality of several kinds of gun laws – such as

machine gun bans, concealed-carry laws, and felon-in-

possession laws – the Court obviously had to employ some

test. Yet the Court made no mention of strict or intermediate

scrutiny when approving such laws. Rather, the test the Court

relied on – as it indicated by using terms such as “historical

tradition” and “longstanding” and “historical justifications” –

was one of text, history, and tradition. Id. at 626-27, 635; see

Eugene Volokh, Implementing the Right to Keep and Bear

Arms for Self-Defense: An Analytical Framework and a

Research Agenda, 56 UCLA L. REV. 1443, 1463 (2009)

(“Absent [from Heller] is any inquiry into whether the law is

necessary to serve a compelling government interest in

preventing death and crime, though handgun ban proponents

did indeed argue that such bans are necessary to serve those

interests and that no less restrictive alternative would do the

job.”); Joseph Blocher, Categoricalism and Balancing in First

and Second Amendment Analysis, 84 N.Y.U. L. REV. 375, 380

(2009) (“Rather than adopting one of the First Amendment’s

many Frankfurter-inspired balancing approaches, the majority

endorsed a categorical test under which some types of ‘Arms’

and arms-usage are protected absolutely from bans and some

types of ‘Arms’ and people are excluded entirely from

constitutional coverage.”); id. at 405 (Heller “neither requires

10

nor permits any balancing beyond that accomplished by the

Framers themselves.”). 5

B

Before addressing the majority opinion’s contrary

analysis of Heller and McDonald, it is important to

underscore two points regarding Heller’s focus on text,

history, and tradition.

First, just because gun regulations are assessed by

reference to history and tradition does not mean that

governments lack flexibility or power to enact gun

regulations. Indeed, governments appear to have more

flexibility and power to impose gun regulations under a test

based on text, history, and tradition than they would under

strict scrutiny. After all, history and tradition show that a

variety of gun regulations have co-existed with the Second

Amendment right and are consistent with that right, as the

Court said in Heller. 6 By contrast, if courts applied strict

5

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, 554 U.S. 570 (No. 07-290) (Chief Justice

Roberts: “Well, these various phrases under the different standards

that are proposed, ‘compelling interest,’ ‘significant interest,’

‘narrowly tailored,’ none of them appear in the Constitution . . . . I

mean, these standards that apply in the First Amendment just kind

of developed over the years as sort of baggage that the First

Amendment picked up.”).

6

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, 453 U.S. 654, 679 n.8

(1981). So, too, the Court looked to traditional practice when

analyzing an Establishment Clause issue related to legislative

11

scrutiny, then presumably very few gun regulations would be

upheld. Indeed, Justice Breyer made this point in his dissent

in Heller when he noted that the majority opinion had listed

certain permissible gun regulations “whose constitutionality

under a strict-scrutiny standard would be far from clear.” 554

U.S. at 688 (Breyer, J., dissenting). 7

So the major difference between applying the Heller

history- and tradition-based approach and applying one of the

forms of scrutiny is not necessarily the number of gun

regulations that will pass muster. Instead, it is that the Heller

test will be more determinate and “much less subjective”

because “it depends upon a body of evidence susceptible of

reasoned analysis rather than a variety of vague ethico-

political First Principles whose combined conclusion can be

found to point in any direction the judges favor.” McDonald,

130 S. Ct. at 3058 (Scalia, J., concurring).

prayer. See Marsh v. Chambers, 463 U.S. 783, 786-92 (1983).

That said, post-ratification adoption or acceptance of laws that are

inconsistent with the original meaning of the constitutional text

obviously cannot overcome or alter that text. The Court in

Marbury found unconstitutional a law passed by the First Congress.

See Marbury v. Madison, 5 U.S. 137 (1803). The practice of

separate but equal was inconsistent with and repugnant to the text

and original meaning of the Equal Protection Clause. See Brown v.

Bd. of Education, 347 U.S. 483 (1954); Strauder v. West Virginia,

100 U.S. 303 (1880). The existence of post-ratification examples

of congressional exclusion of elected members did not persuade the

Court in Powell v. McCormack: “That an unconstitutional action

has been taken before surely does not render that same action any

less unconstitutional at a later date.” 395 U.S. 486, 546-47 (1969).

7

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.

12

To be sure, analyzing the history and tradition of gun

laws in the United States does not always yield easy answers.

Justice Scalia, the author of the Heller majority opinion, thus

acknowledged in his concurrence in McDonald: “No

fundamental right – not even the First Amendment – is

absolute. The traditional restrictions go to show the scope of

the right, not its lack of fundamental character. . . . Historical

analysis can be difficult; it sometimes requires resolving

threshold questions, and making nuanced judgments about

which evidence to consult and how to interpret it. I will

stipulate to that.” Id. at 3056-57. That said, the range of

potential answers will be far more focused under an approach

based on text, history, and tradition than under an interest-

balancing test such as intermediate scrutiny. See id. at 3057

n.9.

Second, when legislatures seek to address new weapons

that have not traditionally existed or to impose new gun

regulations because of conditions that have not traditionally

existed, there obviously will not be a history or tradition of

banning such weapons or imposing such regulations. That

does not mean the Second Amendment does not apply to

those weapons or in those circumstances. Nor does it mean

that the government is powerless to address those new

weapons or modern circumstances. Rather, in such cases, the

proper interpretive approach is to reason by analogy from

history and tradition. See Parker v. District of Columbia, 478

F.3d 370, 398 (D.C. Cir. 2007) (“[J]ust as the First

Amendment free speech clause covers modern

communication devices unknown to the founding generation,

e.g., radio and television, and the Fourth Amendment protects

telephonic conversation from a ‘search,’ the Second

Amendment protects the possession of the modern-day

equivalents of the colonial pistol.”) (emphasis added), aff’d

sub nom. Heller, 554 U.S. 570; Tr. of Oral Arg. at 77, Heller,

13

554 U.S. 570 (No. 07-290) (Chief Justice Roberts: “[Y]ou

would define ‘reasonable’ in light of the restrictions that

existed at the time the amendment was adopted. . . . [Y]ou

can’t take it into the marketplace was one restriction. So that

would be – we are talking about lineal descendents of the

arms but presumably there are lineal descendents of the

restrictions as well.”); cf. Kyllo v. United States, 533 U.S. 27,

31-35 (2001) (applying traditional Fourth Amendment

standards to novel thermal imaging technology); California v.

Ciraolo, 476 U.S. 207, 213 (1986) (allowing government to

view property from airplanes based on common-law principle

that police could look at property when passing by homes on

public thoroughfares).

The Constitution is an enduring document, and its

principles were designed to, and do, apply to modern

conditions and developments. The constitutional principles

do not change (absent amendment), but the relevant principles

must be faithfully applied not only to circumstances as they

existed in 1787, 1791, and 1868, for example, but also to

modern situations that were unknown to the Constitution’s

Framers. To be sure, applying constitutional principles to

novel modern conditions can be difficult and leave close

questions at the margins. But that is hardly unique to the

Second Amendment. It is an essential component of judicial

decisionmaking under our enduring Constitution.

C

The majority opinion here applies intermediate scrutiny

and contends that intermediate scrutiny is consistent with

Heller and McDonald. The majority opinion employs history

and tradition only as a threshold screen to determine whether

the law in question implicates the individual right; if so, the

majority opinion then subjects the individual right to

14

balancing under the intermediate scrutiny test. As explained

above, I disagree with that approach. I read Heller and

McDonald as setting forth a test based wholly on text, history,

and tradition. Deeper examination of the two Supreme Court

opinions – and, in particular, how the Court’s opinions

responded to the dissents in the two cases – buttresses my

conclusion.

Turning first to Heller: The back and forth between the

Heller majority opinion and Justice Breyer’s dissent

underscores that the proper Second Amendment test focuses

on text, history, and tradition. In his dissent, Justice Breyer

suggested that the Court should follow the lead of certain First

Amendment cases, among others, that had applied a form of

intermediate-scrutiny interest balancing:

The fact that important interests lie on both sides of the

constitutional equation suggests that review of gun-

control regulation is not a context in which a court should

effectively presume either constitutionality (as in

rational-basis review) or unconstitutionality (as in strict

scrutiny). Rather, “where a law significantly implicates

competing constitutionally protected interests in complex

ways,” the Court generally asks whether the statute

burdens a protected interest in a way or to an extent that

is out of proportion to the statute’s salutary effects upon

other important governmental interests. See Nixon v.

Shrink Missouri Government PAC, 528 U.S. 377, 402

(2000) (Breyer, J., concurring). . . .

In particular this Court, in First Amendment cases

applying intermediate scrutiny, has said that our “sole

obligation” in reviewing a legislature’s “predictive

judgments” is “to assure that, in formulating its

judgments,” the legislature “has drawn reasonable

15

inferences based on substantial evidence.” Turner, 520

U.S., at 195 (internal quotation marks omitted). And

judges, looking at the evidence before us, should agree

that the District legislature’s predictive judgments satisfy

that legal standard. . . .

There is no cause here to depart from the standard set

forth in Turner, for the District’s decision represents the

kind of empirically based judgment that legislatures, not

courts, are best suited to make. See Nixon, 528 U.S., at

402 (Breyer, J., concurring). . . .

The upshot is that the District’s objectives are

compelling; its predictive judgments as to its law’s

tendency to achieve those objectives are adequately

supported; the law does impose a burden upon any self-

defense interest that the Amendment seeks to secure; and

there is no clear less restrictive alternative.

Heller, 554 U.S. at 689-90, 704-05, 714 (Breyer, J.,

dissenting).

Justice Breyer expressly rejected strict scrutiny and

rational basis review. Instead, he explicitly referred to

intermediate scrutiny and relied on cases such as Turner

Broadcasting that had applied intermediate scrutiny. See

Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189-

225 (1997). And he discussed the strength of the

government’s interest and the fit between the law and those

interests, as the Court does when applying heightened

scrutiny. It is thus evident that Justice Breyer’s Heller dissent

advocated a form of intermediate scrutiny. 8

8

The Heller majority stated that Justice Breyer was not

proposing any of the traditional forms of scrutiny “explicitly at

16

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, 554 U.S. at 634 (quoting id. at 689-90 (Breyer, J.,

dissenting)). The Court stated rather emphatically: “We

know of no other enumerated constitutional right whose core

protection has been subjected to a freestanding ‘interest-

balancing’ approach. 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. A

constitutional guarantee subject to future judges’ assessments

of its usefulness is no constitutional guarantee at all.” Id.

least.” 554 U.S. at 634 (emphasis added). Justice Breyer ruled out

strict scrutiny and rational basis review and relied heavily on

Turner Broadcasting, which had applied a form of intermediate

scrutiny. But he was not explicit about the label for his test, as the

Heller majority opinion noted. In that regard, it bears mention that

strict scrutiny and intermediate scrutiny can take on different forms

in different contexts that are sometimes colloquially referred to as,

for example, strict-scrutiny-light or intermediate-scrutiny-plus or

the like. How strong the government interest must be, how directly

the law must advance that interest, how reasonable the alternatives

must be – those questions are not always framed with precision in

two clearly delineated categories, as opposed to points on a sliding

scale of heightened scrutiny approaches. See, e.g., Nixon v. Shrink

Missouri Government PAC, 528 U.S. 377, 387-88 (2000) (“a

contribution limit involving significant interference with

associational rights could survive if the Government demonstrated

that contribution regulation was closely drawn to match a

sufficiently important interest”) (citations and internal quotation

marks omitted); United States v. Virginia, 518 U.S. 515, 531, 533

(1996) (referring to “skeptical scrutiny” and “heightened review” of

gender-based law).

17

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. The

Court added that judges may not alter the scope of the

Amendment because “[c]onstitutional rights are enshrined

with the scope they were understood to have when the people

adopted them, whether or not future legislatures or (yes) even

future judges think that scope too broad.” Id. at 634-35. The

Court emphasized that the scope of the right was determined

by “historical justifications.” Id. at 635. And the Court stated

that tradition (that is, post-ratification history) matters because

“examination of a variety of legal and other sources to

determine the public understanding of a legal text in the

period after its enactment or ratification” is a “critical tool of

constitutional interpretation.” Id. at 605 (emphasis omitted).

To be sure, the Court noted in passing that D.C.’s

handgun ban would fail under any level of heightened

scrutiny or review the Court applied. Id. at 628-29. But that

was more of a gilding-the-lily observation about the extreme

nature of D.C’s law – and appears to have been a pointed

comment that the dissenters should have found D.C.’s law

unconstitutional even under their own suggested balancing

approach – than a statement that courts may or should apply

strict or intermediate scrutiny in Second Amendment cases.

We know as much because the Court expressly dismissed

Justice Breyer’s Turner Broadcasting intermediate scrutiny

approach and went on to demonstrate how courts should

consider Second Amendment bans and regulations – by

analysis of text, history, and tradition. Id. at 626-27, 634-35.

Is it possible, however, that the Heller Court was ruling

out intermediate scrutiny but leaving open the possibility that

18

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 (1997); see Brief for

Respondent 54-62. But the majority implicitly, and

appropriately, rejects that suggestion by broadly

approving a set of laws – prohibitions on concealed

weapons, forfeiture by criminals of the Second

Amendment right, prohibitions on firearms in certain

locales, and governmental regulation of commercial

firearm sales – whose constitutionality under a strict-

scrutiny standard would be far from clear.

Id. at 688 (Breyer, J., dissenting).

Justice Breyer thus perceived that the Court’s history-

and tradition-based approach would likely permit

governments to enact more gun laws and regulations than a

strict scrutiny approach would allow. History and tradition

establish that several gun regulations have co-existed with the

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.

19

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. 130 S. Ct. at 3050

(controlling opinion of Alito, J.).

That language from McDonald is critically important

because strict and intermediate scrutiny obviously require

assessment of the “costs and benefits” of government

regulations and entail “difficult empirical judgments” about

their efficacy – precisely what McDonald barred.

McDonald’s rejection of such inquiries, which was even more

direct than Heller’s, is flatly incompatible with a strict or

intermediate scrutiny approach to gun regulations.

That conclusion is fortified by a careful examination of

the back and forth in McDonald between Justice Alito’s

controlling opinion and Justice Breyer’s dissent.

In his McDonald dissent, Justice Breyer explained at

some length that he was concerned about the practical

ramifications of Heller and McDonald because judges would

have great difficulty assessing gun regulations under

heightened scrutiny (whether it might be called strict or

intermediate or something else on that heightened scrutiny

spectrum). He stated that determining the constitutionality of

a gun regulation would “almost always require the weighing

of the constitutional right to bear arms against the primary

concern of every government – a concern for the safety and

indeed the lives of its citizens.” 130 S. Ct. at 3126 (Breyer, J.,

dissenting) (internal quotation marks omitted). “Given the

20

competing interests, courts will have to try to answer

empirical questions of a particularly difficult kind.” Id. He

listed a variety of possible gun laws that would raise such

difficult empirical questions, including laws regulating semi-

automatic rifles and laws imposing registration requirements.

Id. Justice Breyer asserted that assessing the constitutionality

of those laws under heightened scrutiny would require

difficult judicial evaluations of the effectiveness of particular

gun laws. Justice Breyer asked: “How can the Court assess

the strength of the government’s regulatory interests without

addressing issues of empirical fact? How can the Court

determine if a regulation is appropriately tailored without

considering its impact? And how can the Court determine if

there are less restrictive alternatives without considering what

will happen if those alternatives are implemented?” Id. at

3127.

The questions identified by Justice Breyer are of course

the kinds of questions that courts ask when applying

heightened scrutiny. So how did the Court respond to Justice

Breyer? The Court simply rejected the premise of Justice

Breyer’s criticism. Those kinds of difficult assessments

would not need to be made, the Court said, because courts

would not be applying that kind of test or scrutiny: “Justice

Breyer is incorrect that incorporation will require judges to

assess the costs and benefits of firearms restrictions and thus

to make difficult empirical judgments in an area in which they

lack expertise. As we have noted, while his opinion in Heller

recommended an interest-balancing test, the Court

specifically rejected that suggestion. ‘The very enumeration

of the right takes out of the hands of government – even the

Third Branch of Government – the power to decide on a case-

by-case basis whether the right is really worth insisting

upon.’” Id. at 3050 (controlling opinion of Alito, J.) (citation

omitted) (quoting Heller, 554 U.S. at 684). The Court also

21

reiterated that “longstanding” gun regulations were

constitutionally permissible. Id. at 3047.

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, possession by a felon,

and the like? Justice Breyer suggested that the Court “simply

invented rules that sound sensible.” Id. at 3127 (Breyer, J.,

dissenting). But the Court responded that, no, it was not

inventing rules but rather was holding that the scope of the

right was determined by text, history, and tradition – and that

“longstanding regulatory measures” were therefore

permissible. Id. at 3047 (controlling opinion of Alito, J.). As

the Court had explained in Heller, the scope of the right was

determined by text, history, and tradition, and such

longstanding laws were within the historical understanding of

the scope of the right. See also McDonald, 130 S. Ct. at 3050,

3056 (Scalia, J., concurring) (Court’s approach “makes the

traditions of our people paramount”; “traditional restrictions”

on the right are permissible).

D

Although Heller and McDonald rejected judicial interest

balancing, the majority opinion here applies intermediate

scrutiny. The majority opinion does so because it says that

22

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, 554 U.S.

at 690, 704-05 (Breyer, J., dissenting) (citing Turner

Broadcasting, 520 U.S. 180); Heller, 554 U.S. at 634-35;

Maj. Op. at 22-23, 26-28 (citing Turner Broadcasting, 520

U.S. 180; Turner Broadcasting System, Inc. v. FCC, 512 U.S.

622 (1994)).

In addition, the premise of the majority opinion’s more

general point – that Heller’s rejection of balancing tests does

not mean it rejected strict and intermediate scrutiny – is

incorrect. Strict and intermediate scrutiny are balancing tests

and thus are necessarily encompassed by Heller’s more

general rejection of balancing.

23

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, 366 U.S. 36, 49-52 (1961); Barenblatt v. United

States, 360 U.S. 109, 126-27, 134 (1959); Sweezy v. New

Hampshire, 354 U.S. 234, 265-67 (1957) (Frankfurter, J.,

concurring in judgment). From the beginning, it was

recognized that those tests were balancing tests. In

Barenblatt, for example, one of the early cases applying a

form of what we now call strict scrutiny, the Court stated that

First Amendment rights may be overcome based on “a

balancing by the courts of the competing private and public

interests at stake in the particular circumstances shown,” and

that the “subordinating interest of the State must be

compelling in order to overcome the individual constitutional

rights at stake.” 360 U.S. at 126-27 (internal quotation marks

omitted). In Konigsberg, the Court similarly explained that

laws limiting speech could be justified by “valid

governmental interests, a prerequisite to constitutionality

which has necessarily involved a weighing of the

governmental interest involved.” 366 U.S. at 50-51. Writing

for the Court, Justice Harlan noted that the test required an

“appropriate weighing of the respective interests involved.”

Id. at 51. In dissent, Justice Black objected to a “doctrine that

permits constitutionally protected rights to be ‘balanced’

away whenever a majority of this Court thinks that a State

might have interest sufficient to justify abridgment of those

freedoms.” Id. at 61 (Black, J., dissenting).

As in their original formulations, the successor strict and

intermediate scrutiny tests applied today remain quintessential

balancing inquiries that focus ultimately on whether a

24

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, 518 U.S. 727, 740-41 (1996) (the Court’s

application of varying levels of scrutiny is a process of

“restat[ing] and refin[ing] . . . basic First Amendment

principles, adopting them more particularly to the balance of

competing interests and the special circumstances of each

field of application”); Employment Div., Dep’t of Human Res.

of Or. v. Smith, 494 U.S. 872, 889 n.5 (1990) (applying strict

scrutiny to general laws that burden religious practice would

require judges to “regularly balance against the importance of

general laws the significance of religious practice”); Mario L.

Barnes & Erwin Chemerinsky, The Once and Future Equal

Protection Doctrine?, 43 CONN. L. REV. 1059, 1080 (2011)

(“The levels of scrutiny are essentially balancing tests – each

test determines how the weights on the scale are to be

arranged. Strict scrutiny puts the weights strongly against the

government and rational basis places the weights in its

favor.”); Alan Brownstein, The Religion Clauses as Mutually

Reinforcing Mandates, 32 CARDOZO L. REV. 1701, 1721-22

(2011) (though strict scrutiny is not as “ad hoc, subjective and

indeterminate” as a “multi-factor balancing test” or

“intermediate level scrutiny,” even under strict scrutiny “there

will be some cases, where the state’s interest is authentic and

substantial, which will require balancing”); Stephen A. Siegel,

The Origin of the Compelling State Interest Test and Strict

Scrutiny, 48 AM. J. LEGAL HIST. 355, 375 (2006)

(“compelling state interest doctrine” is a “balancing test”)

(internal quotation marks omitted); Darrell A.H. Miller, Retail

Rebellion and the Second Amendment, 86 IND. L.J. 939, 967

(2011) (“both Heller and McDonald indicate strongly that

standards of scrutiny are just shorthand for unguided interest

balancing”).

25

To be sure, application of the strict and intermediate

scrutiny tests yields categorical results and rules over time.

And strict scrutiny in particular places a heavy thumb on the

scale in favor of the individual right in question, meaning the

balance is often struck against the government. But the tests

are undoubtedly balancing tests that require a contemporary

judicial assessment of the strength of the asserted government

interests in imposing a particular regulation. If that interest is

deemed sufficiently strong, and the law is deemed to be

appropriately tailored to serving that interest given the

potential alternatives, then the law generally overcomes the

individual right. That is a form of interest balancing. It is

true that strict and intermediate scrutiny come in a variety of

flavors and are not always applied in the exact same way in

all settings (as illustrated by Justice Breyer’s extensive

explanation in his Heller dissent). But they always involve at

least some assessment of whether the law in question is

sufficiently important to justify infringement on an individual

constitutional right. That’s balancing. And Heller and

McDonald rejected the use of balancing tests – including,

therefore, strict or intermediate scrutiny – in fleshing out the

scope of the Second Amendment right.

Of course, as noted above, Heller and McDonald didn’t

just reject interest balancing. The Court went much further by

expressly rejecting Justice Breyer’s intermediate scrutiny

approach, disclaiming cost-benefit analysis, and denying the

need for empirical inquiry. By doing so, the Court made

clear, in my view, that strict and intermediate scrutiny are

inappropriate.

In short, I do not see how Heller and McDonald can be

squared with application of strict or intermediate scrutiny to

D.C.’s gun laws. The majority opinion here refers to the

levels of scrutiny as “familiar.” Maj. Op. at 40. As one

26

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, 84 N.Y.U. L. REV. at 379. 9

That disagreement in Heller was resolved in favor of

categoricalism – with the categories defined by text, history,

and tradition – and against balancing tests such as strict or

intermediate scrutiny or reasonableness.

E

It might be objected that the Supreme Court could not

have intended a test cabined by text, history, and tradition

(and analogues thereto when addressing modern weapons or

conditions) given the prevalence of strict and intermediate

scrutiny tests in the Court’s jurisprudence regarding some

other constitutional rights. I disagree with that suggestion and

think it is based on too narrow a view of the Court’s overall

constitutional jurisprudence.

Taking a step back, we know the Supreme Court has

developed an array of rules, tests, and standards specific to

each right. Particularly for a lower court, it is difficult

therefore to apply an overarching interpretive approach to

questions of constitutional law that are necessarily guided by

decades of precedent interpreting different provisions of the

Constitution under different methodologies. Some individual

constitutional rights are analyzed under heightened (strict or

intermediate) scrutiny, some under categorical tests divined

9

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.

27

from text, history, and tradition, some by reasonableness tests,

some in other ways.

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, 554 U.S. 407 (2008); Boumediene

v. Bush, 553 U.S. 723 (2008); United States v. Booker, 543

U.S. 220 (2005); Lee v. Weisman, 505 U.S. 577 (1992);

Lefkowitz v. Turley, 414 U.S. 70 (1973). In a recent landmark

case concerning the Confrontation Clause, the Court stated in

language quite similar to Heller’s that by “replacing

categorical constitutional guarantees with open-ended

balancing tests, we do violence to their design. Vague

standards are manipulable.” Crawford v. Washington, 541

U.S. 36, 67-68 (2004).

Even in the 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

28

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.’” 130 S. Ct. 1577, 1585 (2010)

(quoting Marbury v. Madison, 5 U.S. 137, 178 (1803)); see

also Simon & Schuster, Inc. v. Members of the N.Y. State

Crime Victims Bd., 502 U.S. 105, 125 (1991) (Kennedy, J.,

concurring) (When the “regulated content has the full

protection of the First Amendment,” that “is itself a full and

sufficient reason for holding the statute unconstitutional. In

my view it is both unnecessary and incorrect to ask whether

the State can show that the statute is necessary to serve a

compelling state interest and is narrowly drawn to achieve

that end.”) (internal quotation marks omitted).

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 Court affirmed this Court’s decision, which

similarly declined to adopt a strict or intermediate scrutiny

test.) Therefore, I would take the Supreme Court’s words in

Heller and McDonald at face value and not superimpose on

those opinions a strict or intermediate scrutiny test that the

Court declined to apply.

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

29

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.” 130 S. Ct. at 3042.

For those fundamental substantive constitutional rights

that the Court has subjected to a balancing test and analyzed

under one of the levels of scrutiny – for example, the 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, 130 S. Ct. 876, 898 (2010) (First

Amendment strict scrutiny in context of infringement on

“political speech”); Boy Scouts of America v. Dale, 530 U.S.

640, 648 (2000) (First Amendment strict scrutiny in context

of infringement on freedom of association); United States v.

Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000)

(First Amendment strict scrutiny in context of content-based

speech regulation); Washington v. Glucksberg, 521 U.S. 702,

721 (1997) (substantive due process doctrine “forbids the

30

government to infringe fundamental liberty interests . . .

unless the infringement is narrowly tailored to serve a

compelling state interest”) (internal quotation marks and

alteration omitted); see generally Richard H. Fallon, Jr., Strict

Judicial Scrutiny, 54 UCLA L. REV. 1267, 1271 (2007) (“the

Supreme Court adopted the strict scrutiny formula as its

generic test for the protection of fundamental rights”).

Strict scrutiny requires the government to show that a law

is narrowly tailored to serve a compelling state interest. See

Citizens United, 130 S. Ct. at 898 (strict scrutiny “requires the

Government to prove that the restriction furthers a compelling

interest and is narrowly tailored to achieve that interest”)

(internal quotation marks omitted). This test strongly favors

the individual right in question. See Brown v. Entertainment

Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011) (strict scrutiny

“is a demanding standard”); Vieth v. Jubelirer, 541 U.S. 267,

294 (2004) (plurality opinion) (strict scrutiny imposes “a

strong presumption of invalidity” with a “thumb on the

scales” in favor of the individual right); Dunn v. Blumstein,

405 U.S. 330, 343 (1972) (under strict scrutiny, “a heavy

burden of justification is on the State”).

It is especially inappropriate for the majority opinion here

to apply intermediate scrutiny rather than strict scrutiny to

D.C.’s ban on semi-automatic rifles. No court of appeals

decision since Heller has applied intermediate scrutiny to a

ban on a class of arms that have not traditionally been banned

and are in common use. A ban on a class of arms is not an

“incidental” regulation. It is equivalent to a ban on a category

of speech. Such restrictions on core enumerated

constitutional protections are not subjected to mere

intermediate scrutiny review. The majority opinion here is in

uncharted territory in suggesting that intermediate scrutiny

31

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. 10 A semi-automatic gun “fires only one shot

10

D.C.’s law bans semi-automatic rifles by listing specific

guns that, as relevant here, share the characteristics of being a long

32

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,

511 U.S. 600, 602 n.1 (1994). That is in contrast to an

automatic gun – also known as a machine gun – which “fires

repeatedly with a single pull of the trigger. That is, once its

trigger is depressed, the weapon will automatically continue

to fire until its trigger is released or the ammunition is

exhausted.” Id. 11

The vast majority of handguns today are semi-

automatic. 12 In Heller, the Supreme Court ruled that D.C.’s

law banning handguns, including semi-automatic handguns,

was unconstitutional. District of Columbia v. Heller, 554

U.S. 570, 628-29 (2008). This case concerns semi-automatic

rifles. 13 As with handguns, a significant percentage of rifles

are semi-automatic. D.C. asks this Court to find that the

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).

11

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).

12

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.”).

13

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.

33

Second Amendment protects semi-automatic handguns but

not semi-automatic rifles.

There is no basis in Heller for drawing a constitutional

distinction between semi-automatic handguns and semi-

automatic rifles.

As an initial matter, considering just the public safety

rationale invoked by D.C., semi-automatic handguns are more

dangerous as a class than semi-automatic rifles because

handguns can be concealed. As was noted by the dissent in

Heller, handguns “are the overwhelmingly favorite weapon of

armed criminals.” 554 U.S. at 682 (Breyer, J., dissenting);

see also FBI, CRIME IN THE UNITED STATES, 2009 tbl.20

(2010). So it would seem a bit backwards – at least from a

public safety perspective – to interpret the Second

Amendment to protect semi-automatic handguns but not

semi-automatic rifles. Indeed, at oral argument, the excellent

Solicitor General for D.C. acknowledged that “an argument

could be made that the government interest in banning

handguns is just as compelling, if not more compelling” than

the government interest in banning semi-automatic rifles. Tr.

of Oral Arg. at 35. He added that “the government’s interest

may be more compelling with regard to handgun[s].” Id. at

36. Counsel’s frank acknowledgment highlights the serious

hurdle that Heller erects in the way of D.C.’s attempt to ban

semi-automatic rifles. Put simply, it would strain logic and

common sense to conclude that the Second Amendment

protects semi-automatic handguns but does not protect semi-

automatic rifles. 14

14

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

34

More to the point for purposes of the Heller analysis, the

Second Amendment as construed in Heller protects weapons

that have not traditionally been banned and are in common

use by law-abiding citizens. Semi-automatic rifles have not

traditionally been banned and are in common use today, and

are thus protected under Heller.

The first commercially available semi-automatic rifles,

the Winchester Models 1903 and 1905 and the Remington

Model 8, entered the market between 1903 and 1906. See

JOHN HENWOOD, THE 8 AND THE 81: A HISTORY OF

REMINGTON’S PIONEER AUTOLOADING RIFLES 5 (1993); JOHN

HENWOOD, THE FORGOTTEN WINCHESTERS: A HISTORY OF

THE MODELS 1905, 1907, AND 1910 SELF-LOADING RIFLES 2-6

(1995). (The first semi-automatic shotgun, designed by John

Browning and manufactured by Remington, hit the market in

1905 and was a runaway commercial success. See HENWOOD,

8 AND THE 81, at 4.) Other arms manufacturers, including

Standard Arms and Browning Arms, quickly brought their

own semi-automatic rifles to market. See id. at 64-69. Five-

shot magazines were standard, but as early as 1907,

Winchester was offering the general public ten-shot

magazines for use with its .351 caliber semi-automatic rifles.

See HENWOOD, THE FORGOTTEN WINCHESTERS 22-23. Many

of the early semi-automatic rifles were available with pistol

grips. See id. at 117-24. These semi-automatic rifles were

designed and marketed primarily for use as hunting rifles,

with a small ancillary market among law enforcement

officers. See HENWOOD, 8 AND THE 81, at 115-21.

semi-automatic 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.

35

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 30 (“We think it clear enough in the record that semi-

automatic rifles . . . are indeed in ‘common use,’ as the

plaintiffs contend.”). According to one source, about 40

percent of rifles sold in 2010 were semi-automatic. See

NICHOLAS J. JOHNSON ET AL., FIREARMS LAW AND THE

SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY ch.

1 (forthcoming 2012). The AR-15 is the most popular semi-

automatic rifle; since 1986, about two million semi-automatic

AR-15 rifles have been manufactured. J.A. 84 (Declaration of

Firearms Researcher Mark Overstreet). In 2007, the AR-15

alone accounted for 5.5 percent of firearms and 14.4 percent

of rifles produced in the United States for the domestic

market. Id. A brief perusal of the website of a popular

American gun seller underscores the point that semi-

36

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 shooting, and competitions. J.A. 137

(Declaration of Firearms Expert Harold E. Johnson). And

many hunting guns are semi-automatic. Id.

Although a few states and municipalities ban some

categories of semi-automatic rifles, most of the country does

not, and even the bans that exist are significantly narrower

than D.C.’s. What the Supreme Court said in Heller as to

D.C.’s handgun ban thus applies just as well to D.C.’s new

semi-automatic rifle ban: “Few laws in the history of our

Nation have come close to the severe restriction of the

District’s” law. 554 U.S. at 629.

What is more, in its 1994 decision in Staples, the

Supreme Court already stated that semi-automatic weapons

“traditionally have been widely accepted as lawful

possessions.” 511 U.S. at 612. Indeed, the precise weapon at

issue in Staples was the AR-15. The AR-15 is the

quintessential semi-automatic rifle that D.C. seeks to ban

here. Yet as the Supreme Court noted in Staples, the AR-15

is in common use by law-abiding citizens and has

traditionally been lawful to possess. By contrast, as the Court

stated in Staples and again in Heller, short-barreled shotguns

and automatic “M-16 rifles and the like” are not in common

use and have been permissibly banned by Congress. Heller,

554 U.S. at 625, 627; see also Staples, 511 U.S. at 611-12

(“certain categories of guns – no doubt including the

machineguns, sawed-off shotguns, and artillery pieces that

Congress has subjected to regulation – . . . have the same

quasi-suspect character we attributed to owning hand

grenades,” but “guns falling outside those categories

traditionally have been widely accepted as lawful

37

possessions”); 18 U.S.C. § 922(o)(1) (“it shall be unlawful for

any person to transfer or possess a machinegun”). 15

The Supreme Court’s statement in Staples that semi-

automatic rifles are traditionally and widely accepted as

lawful possessions further demonstrates that such guns are

protected under the Heller history- and tradition-based test.

The government may still ban automatic firearms (that is,

machine guns), which traditionally have been banned. But

the government may not generally ban semi-automatic guns,

whether semi-automatic rifles, shotguns, or handguns.

Even if it were appropriate to apply some kind of

balancing test or level of scrutiny to D.C.’s ban on semi-

automatic rifles, the proper test would be strict scrutiny, as

explained above. See supra Part I.F. That is particularly true

where, as here, a court is analyzing a ban on a class of arms

within the scope of Second Amendment protection. If we are

to apply strict scrutiny, we must do so in a manner consistent

with Heller’s holding that D.C.’s handgun ban was

unconstitutional. But D.C. cannot show a compelling interest

in banning semi-automatic rifles because the necessary

implication of the decision in Heller is that D.C. could not

show a sufficiently compelling interest to justify its banning

semi-automatic handguns.

For its part, the majority opinion analyzes D.C.’s ban on

semi-automatic rifles under an intermediate scrutiny

balancing test. Even if the majority opinion were right that

intermediate scrutiny is the proper test, the majority opinion’s

15

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, 478 F.3d 370, 398

(D.C. Cir. 2007), aff’d sub nom. Heller, 554 U.S. 570.

38

application of intermediate scrutiny here is unconvincing:

The fundamental flaw in the majority opinion is that it cannot

persuasively explain why semi-automatic handguns are

constitutionally protected (as Heller held) but semi-automatic

rifles are not.

In attempting to distinguish away Heller’s protection of

semi-automatic handguns, the majority opinion suggests that

semi-automatic rifles are almost as dangerous as automatic

rifles (that is, machine guns) because semi-automatic rifles

fire “almost as rapidly.” Maj. Op. at 34. Putting aside that

the majority opinion’s data indicate that semi-automatics

actually fire two-and-a-half times slower than automatics, id.,

the problem with the comparison is that semi-automatic rifles

fire at the same general rate as semi-automatic handguns.

And semi-automatic handguns are constitutionally protected

under the Supreme Court’s decision in Heller. So the

majority opinion cannot legitimately distinguish Heller on

that basis. See Eugene Volokh, Implementing the Right to

Keep and Bear Arms for Self-Defense: An Analytical

Framework and a Research Agenda, 56 UCLA L. REV. 1443,

1484 (2009) (“The laws generally define assault weapons to

be a set of semiautomatic weapons (fully automatic weapons

have long been heavily regulated, and lawfully owned fully

automatics are very rare and very expensive) that are little

different from semiautomatic pistols and rifles that are

commonly owned by tens of millions of law-abiding citizens.

‘Assault weapons’ are no more ‘high power’ than many other

pistols and rifles that are not covered by the bans.”) (footnote

omitted). 16

16

In passing, the majority opinion here tosses out the

possibility that Heller might protect handguns that are revolvers but

not handguns that are semi-automatic pistols. See Maj. Op. at 43. I

find that an utterly implausible reading of Heller given the Court’s

39

The majority opinion next contends that semi-automatic

handguns are good enough to meet people’s needs for self-

defense and that they shouldn’t need semi-automatic rifles.

But that’s a bit like saying books can be banned because

people can always read newspapers. That is not a persuasive

or legitimate way to analyze a law that directly infringes an

enumerated constitutional right. Indeed, Heller itself

specifically rejected this mode of reasoning: “It is no answer

to say, as petitioners do, that it is permissible to ban the

possession of handguns so long as the possession of other

firearms (i.e., long guns) is allowed.” 554 U.S. at 629; see

also Parker v. District of Columbia, 478 F.3d 370, 400 (D.C.

Cir. 2007) (“The District contends that since it only bans one

type of firearm, ‘residents still have access to hundreds more,’

and thus its prohibition does not implicate the Second

Amendment because it does not threaten total disarmament.

We think that argument frivolous. It could be similarly

contended that all firearms may be banned so long as sabers

were permitted.”), aff’d sub nom. Heller, 554 U.S. 570.

Furthermore, the majority opinion’s assertion does not

sufficiently account for the fact that rifles, but typically not

handguns, are used for hunting. Cf. Heller, 554 U.S. at 599

(most founding-era Americans “undoubtedly” thought right to

own firearms “even more important for self-defense and

hunting” than for militia service).

In support of its law, D.C. suggests that semi-automatic

rifles are “offensive” and not just “defensive.” But that is

plainly true of semi-automatic handguns as well (after all,

handguns are far and away the guns most often used in violent

crimes), and yet the Supreme Court held semi-automatic

handguns to be constitutionally protected. Moreover, it’s hard

many blanket references to handguns and given that most handguns

are semi-automatic.

40

to see why, if a gun is effective for “offense,” it might not

also be effective for “defense.” If a gun is employed by

criminals on the offense who are willing to violate laws and

invade homes, for example, their potential victims will

presumably want to be armed with similarly effective

weapons for their defense. Cf. Heller, 554 U.S. at 711

(Breyer, J., dissenting) (“the very attributes that make

handguns particularly useful for self-defense are also what

make them particularly dangerous”). There is no reason to

think that semi-automatic rifles are not effective for self-

defense in the home, which Heller explained is a core purpose

of the Seco

This text is long and has been trimmed here. Open the source document for the complete record.