Dick Heller v. DC , 801 F.3d 264 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2015 Decided September 18, 2015
No. 14-7071
DICK ANTHONY HELLER, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01289)
Stephen P. Halbrook argued the cause for appellants.
With him on the briefs was Dan M. Peterson.
C.D. Michel, Anthony Pisciotti, and Jeffrey Malsch were
on the brief for amici curiae CRPA Foundation, Pink Pistols,
Second Amendment Sisters, and Women Against Gun
Control in support of appellants.
William J. Olson, Herbert W. Titus, Jeremiah L. Morgan,
and John S. Miles were on the brief for amici curiae Gun
Owners of America, Inc., et al. in support of appellants.
2
John Parker Sweeney and James W. Porter III were on
the brief for amicus curiae National Rifle Association, Inc. in
support of appellants.
Loren L. AliKhan, Deputy Solicitor General, Office of the
Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Eugene A.
Adams, Interim Attorney General at the time the brief was
filed, Todd S. Kim, Solicitor General, and Holly M. Johnson,
Assistant Attorney General.
Douglas F. Gansler, Attorney General at the time the
brief was filed, Office of the Attorney General for the State of
Maryland, and Joshua N. Auerbach, Assistant Attorney
General, Tom Miller, Attorney General, Office of the
Attorney General for the State of Iowa, Martha Coakley,
Attorney General at the time the brief was filed, Office of the
Attorney General for the Commonwealth of Massachusetts,
Eric T. Schneiderman, Attorney General, Office of the
Attorney General for the State of New York, Kamala Harris,
Attorney General, Office of the Attorney General for the State
of California, George Jepsen, Attorney General, Office of the
Attorney General for the State of Connecticut, Russell A.
Suzuki, Attorney General at the time the brief was filed,
Office of the Attorney General for the State of Hawaii, and
Lisa Madigan, Attorney General, Office of the Attorney
General for the State of Illinois were on the brief as amici
curiae States of Maryland, et al. in support of appellees.
Walter A. Smith, Jr., Jonathan L. Diesenhaus, appointed
by the court, and Karla J. Aghedo were on the brief as amici
curiae DC Appleseed Center for Law & Justice, et al. in
support of appellees.
3
Howard R. Rubin and Daniel Lipton were on the brief as
amici curiae The Major City Chiefs of Police Association,
The United States Conference of Mayors, and International
Municipal Lawyers Association in support of appellees.
Paul R.Q. Wolfson, Francesco Valentini, and Jonathan E.
Lowy were on the brief for amici curiae Brady Center to
Prevent Gun Violence, et al. in support of appellees.
Before: HENDERSON and MILLETT, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.
GINSBURG, Senior Circuit Judge: At issue in this suit is
the constitutionality of certain gun laws enacted by the
District of Columbia. The district court determined as a
matter of law that the District’s efforts “to combat gun
violence and promote public safety” by means of its
registration laws were “constitutionally permissible.” Heller
v. District of Columbia, 45 F. Supp. 3d 35, 38 (D.D.C. 2014).
Before this court, Dick Anthony Heller and his co-appellants
challenge both the district court’s admission of, and its
reliance upon, certain expert reports proffered by the District
and the final order denying Heller’s and granting the
District’s motion for summary judgment.
We hold the district court’s admission of the challenged
expert reports was not an abuse of discretion. We affirm in
part and reverse in part the district court’s judgment in favor
of the District.
4
I. Background
In District of Columbia v. Heller (Heller I) the Supreme
Court held the District of Columbia’s “prohibition of
handguns held and used for self-defense in the home” was
unconstitutional. 554 U.S. 570, 636 (2008). Immediately
thereafter, the D.C. City Council revised the District’s gun
laws by enacting the Firearms Registration Amendment Act
of 2008 (FRA). D.C. Law 17-372.
The FRA created a “new scheme for regulating firearms.”
Heller v. District of Columbia, 670 F.3d 1244, 1248 (D.C.
Cir. 2011) (Heller II). With limited exceptions, the FRA
required the registration of all firearms in the District. D.C.
Code § 7-2502.01. The law also imposed various conditions
upon the registration of a firearm and limited the persons
eligible to register a firearm by excluding, for example,
individuals who within the prior five years had been
convicted of certain drug or violent crimes or had a severe
mental health problem, and individuals under the age of 18.
Id. § 7-2502.03-.07. In addition, the FRA required the gun
owner to renew the registration of his firearm(s) every three
years, id. § 7-2502.07a, and prohibited registration — and
hence possession — of certain firearms, such as short-
barreled rifles and assault weapons. Id. § 7-2502.02.
In July 2008 Heller filed suit challenging the District’s
new registration scheme as inconsistent with the Second
Amendment to the Constitution of the United States. The
district court granted summary judgment to the District and
Heller appealed.
On that appeal, we upheld the constitutionality of the
District’s “basic registration requirement,” insofar as that
requirement pertained to handguns. Heller II, 670 F.3d at
5
1254-55. We also upheld the portion of the FRA prohibiting
registration, and therefore possession, of assault weapons and
magazines with a capacity in excess of 10 rounds. Id. at
1247-48, 1264.
We reserved judgment as to the constitutionality of the
District’s basic registration requirement for long guns, the
conditions under which a registration certificate would be
issued, and the duration for which such a certificate would be
valid. Id. at 1255, 1258-60. We held that both the basic
registration requirement for long guns, if not de minimis, and
the conditions for registration were subject to intermediate
scrutiny, and that the record as it then stood was not sufficient
for us to evaluate whether those laws were narrowly tailored
to serve an important governmental interest. Id. at 1258. We
therefore remanded the case to the district court for further
evidentiary proceedings. Id. at 1260.
Subsequently, the D.C. Council enacted the Firearms
Amendment Act of 2012, D.C. Law 19-170, which repealed
certain of the conditions for registration, such as the
requirement that a pistol be submitted for ballistic
identification as part of the registration process, and reduced
the burden upon registrants imposed by other provisions.
Heller then filed an amended complaint to take account of
these legislative changes.
During discovery, Heller and the District offered the
opinion testimony of, respectively, one and four expert
witnesses. Heller v. District of Columbia, 45 F. Supp. 3d at
40 (Heller III). Largely upon the basis of their testimony, the
district court entered summary judgment for the District.
On this appeal, Heller argues the district court erred by
admitting the opinion testimony of three of the District’s four
6
expert witnesses. In addition, Heller argues the district court
erred in upholding as constitutional: (1) the basic registration
requirement as it pertains to long guns, D.C. Code § 7-
2502.01(a); (2) the requirement that one appear in person to
register a firearm and be fingerprinted and photographed, id.
§ 7-2502.04; (3) the requirement that the registrant bring with
him the firearm to be registered, which requirement the
Metropolitan Police Department (MPD) may or may not
invoke as to a particular individual, id. § 7-2502.04(c); (4) the
expiration of the registration after three years, id. § 7-
2502.07a; (5) the imposition of certain fees for registration,
id. § 7-2502.05(b); (6) the requirements that a registrant
complete a firearms safety and training course or provide
evidence of another form of training and that the registrant
pass a test to demonstrate his knowledge of the District’s
firearms laws, id. §§ 7-2502.03(a)(13), 7-2502.03(a)(10); and
(7) the prohibition on registration of more than one pistol per
person in any 30-day period, id. § 7-2502.03(e).
II. Analysis
We first address the district court’s admission of the
challenged expert reports and related testimony. We then turn
to Heller’s constitutional challenges.
A. The expert reports and testimony
Heller moved to strike three of the four expert reports
offered by the District during discovery, viz., those of Cathy
Lanier, the Chief of the MPD, and of Mark Jones and Joseph
Vince, Jr., both former agents of the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF), but not that of
Daniel Webster, Director of the Johns Hopkins Center for
Gun Policy. Heller argued the expert reports “fall short of the
disclosure requirements under FED. R. CIV. P. 26(a) and that
7
their proposed testimony [was] too unreliable to be admitted
under FED. R. EVID. 702.” The district court denied Heller’s
motion.
On appeal, Heller renews both arguments. We review the
district court’s admission of expert testimony for abuse of
discretion, whether that admission is challenged under the
rules of evidence or under the rules of procedure. United
States v. Day, 524 F.3d 1361, 1367 (D.C. Cir. 2008). We
conclude that the district court did not abuse its discretion in
admitting the challenged testimony.
1. Federal Rule of Civil Procedure 26
Federal Rule of Civil Procedure 26(a)(2)(B) provides that
an expert witness must submit a written report containing,
among other things, “a complete statement of all opinions the
witness will express and the basis and reasons for them,” as
well as “the facts or data considered by the witness in forming
them.” A party who fails to comply with Rule 26(a)(2)(B)
generally may not use that witness “to supply evidence on a
motion … unless the failure was substantially justified or is
harmless.” FED. R. CIV. P. 37(c)(1).
The purpose of the rule is to avoid “unfair surprise to the
opposing party.” Muldrow ex rel. Estate of Muldrow v. Re-
Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007) (citation and
internal quotation marks omitted). Admitting a report with an
omission that does not cause “unfair surprise” we deem
harmless. Id.
As the district court noted, each of the challenged expert
reports contained an explicit statement as to the basis for that
witness’s opinion, to wit, that his or her report was based “on
my experience, my review of numerous studies and books, the
8
District of Columbia’s firearms laws and regulations, and
discovery materials from this case made available to me.” In
addition each report recounts in detail the expert’s relevant
experience. The district court stated:
Plaintiffs have had an opportunity to depose these
experts and examine more fully the bases for their
opinions …. Where Defendants have provided
adequate notice of the opinions they expect these
experts to offer and Plaintiffs have had and continue to
have opportunities to challenge these conclusions, the
goals of Rule 26(a) are satisfied, and there is no basis
for striking the reports and preventing these experts
from testifying.
Heller v. District of Columbia, 952 F. Supp. 2d 133, 139
(D.D.C. 2013).
The district court did not abuse its discretion in so
holding. The experts’ reports adequately established the
bases for the opinions they expressed in the reports and in
their declarations. Heller had the opportunity to probe the
bases for the witnesses’ opinions when he deposed them.
2. Federal Rule of Evidence 702
Rule 702 provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of
9
fact to understand the evidence or to determine
a fact in issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles
and methods to the facts of the case.
FED. R. EVID. 702.
In Daubert v. Merrell Dow Pharmaceuticals, the
Supreme Court held Rule 702 requires courts to ensure that
expert testimony is “not only relevant, but reliable.” 509 U.S.
579, 589 (1993); see also Kumho Tire Co. v. Carmichael, 526
U.S. 137, 149 (1999) (noting that “Daubert’s general
principles apply” not just to scientific testimony but to all “the
expert matters described in Rule 702”). Therefore, courts are
obligated to “determine whether [expert] testimony has a
reliable basis in the knowledge and experience of [the
relevant] discipline.” Kumho Tire, 526 U.S. at 149 (second
alteration in original) (citation and internal quotation marks
omitted). Nonetheless, the Supreme Court has said “the trial
judge must have considerable leeway in deciding in a
particular case how to go about determining whether
particular expert testimony is reliable.” Id. at 152.
In this case the district court reasoned:
[I]t appears here that the opinion evidence is
connected to the existing facts – the registration
requirements and the state of gun violence in the
10
District – by a methodology precisely contemplated by
Daubert and Rule 702: each expert’s professional
judgment obtained through long experience in the
field. Each of the reports specifically identifies this
experience as being the basis for the opinions
proffered, and each provides some justification – in
the form of information gained from the expert’s
relevant experience – for those opinions.
Heller v. District of Columbia, 952 F. Supp. 2d at 142.
As the district court rightly suggested, each of the
challenged experts has decades of relevant experience. Still,
the Advisory Committee notes to Rule 702 provide that a
witness who is “relying solely or primarily on experience …
must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the
facts.” In this case the experts’ explanation of the connection
between their experience and their conclusions was
sometimes fatally sparse. Likewise, the district court failed
meaningfully to evaluate the factual bases for the experts’
opinions, noting only that they were supported by “some
justification — in the form of information gained from the
expert’s relevant experience.”
As this court has noted, however, the “admission of
[expert] testimony does not constitute an abuse of discretion
merely because the factual bases for an expert’s opinion are
weak.” Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549,
567 (D.C. Cir. 1993). Nor is this a case in which the experts’
reports consisted of “subjective belief or unsupported
speculation,” which the rules of evidence preclude. Id. at 570
(citation and internal quotation marks omitted).
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In addition to invoking his or her generalized
“experience,” each expert claimed to have relied upon
specific news stories, academic studies, or other research in
forming an opinion. Moreover, each of the three experts was
in a position to state whether the cited materials comported
with his or her personal experience.
In light of the challenged experts’ substantial relevant
experience and the sources they cited in support of their
conclusions — the above-noted stories, studies, and research
— we hold the district court did not abuse its discretion in
admitting the challenged expert reports and the subsequent
expert declarations. Rather, as the district court noted,
Heller’s “concerns about the conclusions [to which] these
experts’ experience led them … go to the weight of the
testimony,” not its admissibility. Heller v. District of
Columbia, 952 F. Supp. 2d at 142.
B. The constitutional challenges
We review the district court’s summary judgment
determination de novo, considering the evidence in the light
most favorable to the non-moving party, i.e., Heller. See
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir.
2013).
In Heller II, we adopted a two-step approach to
determining the constitutionality of the District’s gun
registration laws: “We ask first whether a particular provision
impinges upon a right protected by the Second Amendment; if
it does, then we go on to determine whether the provision
passes muster under the appropriate level of constitutional
scrutiny.” 670 F.3d at 1252. We determined that level was
intermediate scrutiny. Id. at 1252-53.
 12
For a challenged provision to survive intermediate
scrutiny, the District has to show, first, that it “promotes a
substantial governmental interest that would be achieved less
effectively absent the regulation,” and second, that “the means
chosen are not substantially broader than necessary to achieve
that interest.” Id. at 1258 (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 782-83 (1989)). To meet the first
requirement, the District must demonstrate that the harms to
be prevented by the regulation “are real, not merely
conjectural, and that the regulation will in fact alleviate these
harms in a direct and material way.” Turner Broad. Sys., Inc.
v. FCC, 512 U.S. 622, 662-64 (1994) (Turner I). We do not,
however, review de novo the District’s evidence of the harm
to be prevented and the likely efficacy of the regulation in
preventing that harm. See id. at 666. Rather, it is our remit to
determine only whether the District “has drawn reasonable
inferences based on substantial evidence.” Id. If it has done
so, and if the means chosen are not overbroad, then “summary
judgment … is appropriate regardless of whether the evidence
is in conflict.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,
185, 195-96, 211 (1997) (Turner II); see also Heller II, 670
F.3d at 1263 (upholding the District’s ban on assault weapons
on the basis that “the evidence demonstrates a ban on assault
weapons is likely to promote the Government’s interest in
crime control”).
1. Impingement
In Heller II we held the basic registration requirement as
applied to handguns did not impinge upon the Second
Amendment and was therefore constitutional. 670 F.3d at
1254-55 (“[T]he basic requirement to register a handgun is
longstanding in American law …. Therefore, we presume the
District’s basic registration requirement including the
submission of certain information does not impinge upon the
13
right protected by the Second Amendment. Further, we find
no basis in either the historical record or the record of this
case to rebut that presumption.”) (citations omitted); see also
Heller I, 554 U.S. at 626-27 & n.26 (“longstanding” firearm
regulations are “presumptively lawful”). We left open the
question whether requiring the registration of long guns
impinges upon the Second Amendment. 670 F.3d at 1255
n.**; see also D.C. Code § 7-2502.01(a). We now hold it
does not.
Requiring the registration of handguns is legally different
from requiring the registration of long guns only in that “basic
registration of handguns is deeply enough rooted in our
history to support the presumption that [it] is constitutional,”
Heller II, 670 F.3d at 1253; the registration requirement for
long guns lacks that historical pedigree. Id. at 1255.
Even absent the presumption that attends the pedigree,
however, the basic registration requirement as applied to hand
guns falls into the category of requirements that are “self-
evidently de minimis, for they are similar to other common
registration or licensing schemes, such as those for voting or
for driving a car, that cannot reasonably be considered
onerous.” Id. at 1254-55. On Heller’s previous appeal, we
were unable to determine whether requiring the registration of
long guns is similarly a de minimis burden because the record
was “devoid of information concerning the application of
registration requirements to long guns.” Id. at 1255 n.**. We
therefore allowed Heller, during the discovery proceedings on
remand, the opportunity to introduce evidence that might
differentiate the registration requirement for long guns from
other registration requirements that undoubtedly entail a de
minimis burden upon a constitutional right. As the district
court subsequently determined, however, Heller offered no
evidence distinguishing the basic registration requirement as
14
applied to long guns. See Heller III, 45 F. Supp. 3d at 51.
Indeed, he did not even argue the point. 1
Because the burden of the basic registration requirement
as applied to long guns is de minimis, it does not implicate the
second amendment right. Heller II, 670 F.3d at 1255; see
also Justice v. Town of Cicero, 577 F.3d 768, 773-75 (7th Cir.
2009) (holding local ordinance “requiring the registration of
all firearms” is consistent with the Supreme Court’s ruling in
Heller I). It is therefore constitutional.
1
In his reply brief in this court, Heller argued for the first time that
the registration requirement impinges upon the Second Amendment
right to bear arms because a person can “go to prison and receive a
lifetime ban on possession of firearms for failure to register or
reregister.” See D.C. Code §§ 7-2502.03, 7-2507.06, 7-2502.08
(providing generally violation of the registration requirements may
result in fines, imprisonment, and ineligibility to register weapons
in the future). This assertion, however, is too little, too late. It
comes too late because we do not ordinarily notice an argument that
first appears in a reply brief. See Gunpowder Riverkeeper v. FERC,
No. 14-1062, 2015 WL 4450952, at *5 (D.C. Cir. July 21, 2015)
(“[A]rguments not clearly raised in a party’s opening brief are
generally considered to be forfeit”). In any event, it is too little
because in Heller II we instanced other licensing schemes we think
impose a de minimis burden notwithstanding that failure to comply
with those schemes may result in criminal penalties; so it is with
the basic registration requirement for long guns. See Heller II, 670
F.3d at 1254-55 (describing licensing schemes “such as [that] for
… driving a car” as “self-evidently de minimis”); D.C. Code § 50-
1403.01(e) (providing that an individual found guilty of “operating
a motor vehicle in the District” while that person’s license is
“revoked or suspended” may be fined or imprisoned for up to one
year).
15
The additional registration requirements, however, cannot
be said to be de minimis. In Heller II, we held the additional
requirements, as they then stood, “affect[ed] the Second
Amendment right because they [we]re not de minimis” —
that is, they “ma[d]e it considerably more difficult for a
person lawfully to acquire and keep a firearm … for the
purpose of self-defense in the home.” Id. at 1255. The
subsequent repeal of some of those requirements and the
amendment of others somewhat reduced the burden imposed
upon District residents’ exercise of their Second Amendment
rights. The District does not go so far as to argue, however,
that the amended requirements are de minimis. Those
requirements are therefore subject to intermediate scrutiny.
2. Intermediate scrutiny
We previously identified two substantial governmental
interests served by the registration requirements enacted by
the District: (1) protecting police officers by enabling them to
determine, in advance, whether guns may be present at a
location to which they are called and (2) aiding in crime
control. Heller II, 670 F.3d at 1258. On remand, the District
recharacterized the second interest as a broader interest in
“promoting public safety.” Heller III, 45 F. Supp. 3d at 49.
On appeal, the District identifies more particularly its interest
in “protecting police officers” and reiterates its interest in
“promoting public safety” generally.
Heller does not dispute that these are substantial
governmental interests. Rather, he challenges the closeness of
the fit between the asserted interests and the various
registration requirements. We agree with Heller that the
District has not offered substantial evidence from which one
could draw a reasonable conclusion that the challenged
requirements will protect police officers; but we think the
16
District has pointed to substantial evidence that some of the
requirements — but not others — will promote public safety.
a. Police protection
Heller argues the registration requirements do not
advance the District’s interest in protecting the police because
MPD officers very rarely check the registration records in
responding to a call, conducting an investigation, or executing
a search warrant. The District responds that although the
“MPD does not routinely check registration records prior to
responding to a call for service … such a check is a tool
available for use in appropriate circumstances.” It is
undisputed that such checks have taken place, albeit rarely.
Therefore, the question remains whether that “tool”
promotes the District’s asserted interest in police protection.
Discovery subsequent to our decision in Heller II indicates it
does not.
According to the deposition testimony of an MPD officer,
District police “are trained to treat situations where there
might be a crime in progress or domestic dispute or some
other situation possibly involving violence as always having a
potential to have a dangerous weapon present.” Further, one
of the District’s expert witnesses stated that if the registration
system indicated no weapon was present at an address, then
officers “would continue to exercise caution.” The best the
District’s expert could offer was that positive confirmation of
a gun might raise officers’ “caution level … that much
higher.”
The testimony of the District’s own witnesses, therefore,
indicates that the records established via the registration
requirements, when queried at all, have little to no effect upon
17
the conduct or safety of police officers. In light of this
additional evidence, we agree with the statement of our
colleague in Heller II that the asserted interest in police
protection “leaves far too many false negatives to satisfy …
intermediate scrutiny.” 670 F.3d at 1295 (Kavanaugh, J.,
dissenting).
b. Public safety
Drawing directly upon the Report of the Judiciary
Committee of the D.C. Council with respect to the Firearms
Amendment Act of 2012, the District claims the various
registration requirements advance its interest in public safety
by “distinguishing criminals from law-abiding citizens,
enabling police to arrest criminals immediately, facilitating
enforcement against prohibited persons obtaining or
continuing to possess firearms, reducing gun trafficking, and
increasing the difficulty for criminals to acquire guns.” We
next address whether the District has, with regard to each
challenged registration provision, offered substantial evidence
from which it could reasonably have concluded the provision
will mitigate various threats to public safety “in a direct and
material way,” Turner I, 512 U.S. at 664, whether in one of
the ways anticipated by the D.C. Council or otherwise.
i. In-person appearance, fingerprinting, and
photographing, D.C. Code § 7-2502.04
The District has presented substantial evidence from
which it could conclude that fingerprinting and photographing
each person registering a gun promotes public safety by
facilitating identification of a gun’s owner, both at the time of
registration and upon any subsequent police check of the
gun’s registration. The requirement that registrants appear in
18
person is necessary in order for a photograph and fingerprints
to be taken.
First, the fingerprinting requirement: The Report of the
Committee on the Judiciary stated that “[t]he initial
fingerprinting requirement is fundamental for the [MPD] to
fulfill its public safety obligations in registering firearms —
being able to screen the registrant to ensure that he or she is
not disqualified from possessing a firearm.” In support of this
assertion, the District points to the testimony of Chief Lanier,
who said “[u]sing biometrics [i.e., fingerprints] to positively
identify an individual is far more effective than relying simply
on a name and social security number.” Chief Lanier
reiterates this conclusion in her expert declaration, and it is
echoed in Webster’s expert declaration.
In addition, the District points to evidence suggesting
background checks using fingerprints are more reliable than
background checks conducted without fingerprints, which are
more susceptible to fraud. Specifically, the District points to
an investigation conducted by the U.S. Government
Accountability Office, in which five “agents acting in an
undercover capacity used … counterfeit driver’s licenses in
attempts to purchase firearms from gun stores and pawnshops
that were licensed by the federal government to sell firearms.”
GAO-01-427, FIREARMS PURCHASED FROM FEDERAL
FIREARM LICENSEES USING BOGUS IDENTIFICATION 2 (2001).
Those attempts were, without exception, successful. Id. at 2-
3. The report concluded that federal background checks
conducted by the firearm dealers “cannot ensure that the
prospective purchaser is not a felon or other prohibited person
19
whose receipt and possession of a firearm would be
unlawful.” Id. at 2. 2
Heller argues the District has not experienced a problem
with fraud in the registration of firearms. He also implies the
problem is unlikely to arise, given the increased difficulty of
manufacturing fraudulent identification documents today, as
compared to 2001, when the GAO concluded its investigation.
Even if this is true, however, a prophylactic disclosure
measure such as the one at issue here survives intermediate
scrutiny if the deterrent value of the measure will materially
further an important governmental interest. See Barry v. City
of New York, 712 F.2d 1554, 1559-61 (2d Cir. 1983)
(upholding under intermediate scrutiny a law requiring
financial disclosures by certain publicly employed individuals
in the face of a right-to-privacy challenge on the basis that it
could “help deter corruption,” despite a “virtually corruption-
free history” (citation and internal quotation marks omitted)).
The GAO study indicates the fingerprinting requirement
would, indeed, help to deter and detect fraud and thereby
prevent disqualified individuals from registering firearms.
Regarding the requirement of a photograph: The
Committee on the Judiciary emphasized “the importance of a
registrant being able to present a registration certificate with a
photograph, so police can quickly identify whether and to
2
The states in which the GAO conducted its study had adopted the
National Instant Criminal Background Check System (NICS), see
18 U.S.C. § 922(t), under which, then as now, the following
information is required of each individual who undergoes a NICS
check: (1) name, (2) sex, (3) race, (4) date of birth, and (5) state of
residence. 28 C.F.R. § 25.7. A dealer may, in addition, report the
purchaser’s Social Security or other identifying number and
physical description. Id.
20
whom the firearm has been legally registered.” The
Committee pointed to the testimony of Chief Lanier, who
asserted that “a certificate with a photo helps to quickly and
safely communicate” the fact of registration to police officers,
which, “in turn, helps to keep both the officer and the
registrant safe.” Heller, while maintaining that photographing
a registrant will not deter fraud, does not contest that
photographic confirmation of a registrant’s identity would be
beneficial to public safety when the police encounter an
armed registrant. See D.C. Code § 7-2502.08(c) (“Each
registrant shall have in the registrant’s possession, whenever
in possession of a firearm, the registration certificate, or exact
photocopy thereof, for such firearm, and exhibit the same
upon the demand of a member of the [MPD], or other law
enforcement officer”).
For the foregoing reasons, we believe the District has
adduced substantial evidence from which it reasonably could
conclude that fingerprinting and photographing registrants
will directly and materially advance public safety by
preventing at least some ineligible individuals from obtaining
weapons and, more important, by facilitating identification of
the owner of a registered firearm during any subsequent
encounter with the police. Those requirements are therefore
not unconstitutional. The additional requirement that
registrants appear in person to be photographed and
fingerprinted is but a corollary necessary to implement those
requirements. See Heller II, 670 F.3d at 1249 n.* (noting that
administrative provisions “incidental to the underlying
regime” are “lawful insofar as the underlying regime is
lawful”).
21
ii. Bringing the firearm, D.C. Code § 7-
2502.04(c)
The District argues that the “requirement that the firearm
be made available for inspection allows MPD to verify that
the application information is correct and that the firearm has
not been altered or switched with another firearm.” The
District, however, has offered no evidence — let alone
substantial evidence — from which it can be inferred that
verification will promote public safety. The district court
acknowledged as much when it noted that not one of the
District’s four experts “specifically addresse[d] the
requirement that registrants bring the gun to be registered
with them.” Heller III, 45 F. Supp. 3d at 59. The district
court nonetheless deemed it a “common-sense inference” that
“if in-person appearance is necessary to verify the identity of
the registrant, then physically bringing the gun is similarly
necessary to verify the character of the registered weapon.”
Id. Yet common sense suggests a person would not go to the
trouble of obtaining a registration certificate for a weapon
other than a weapon in his possession. On the contrary,
common sense suggests that bringing firearms to the MPD
would more likely be a threat to public safety; as Heller
maintains, there is a “risk that the gun may be stolen en route
or that the [would-be registrant] may be arrested or even shot
by a police officer seeing a ‘man with a gun’ (or a gun case).”
iii. Re-registration, D.C. Code § 7-2502.07a
The District has offered three justifications for the
requirement that a gun owner re-register his firearm every
three years. None is supported by substantial evidence from
which the District could reasonably have concluded that
requiring re-registration would advance an important
governmental interest.
22
First, the District’s experts argued that re-registration
“will improve public safety by making sure that, in the time
since [the gun owner] first registered, [he has] not fallen into a
category of persons prohibited from owning a firearm.”
Heller III, 45 F. Supp. 3d at 67-68. As Heller rightly points
out, however, “District officials and experts conceded [that]
background checks could be conducted at any time without
causing the registrations to expire.” The re-registration
requirement cannot survive intermediate scrutiny on the
(dubious) basis that it will make this task easier. Cf.
McCullen v. Coakley, 134 S. Ct. 2518, 2540 (2014) (“To meet
the requirement of narrow tailoring, the government must
demonstrate that alternative measures that burden
substantially less speech would fail to achieve the
government’s interests, not simply that the chosen route is
easier”).
Second, the District argues triennial re-registration will
help to maintain the accuracy of the registration database.
This seems self-evidently true, but it is far from an adequate
reason for burdening every gun owner when there is already a
requirement that gun owners report relevant changes in their
information, such as a new address. D.C. Code § 7-2502.08
(requiring such reporting). To the extent that a gun owner’s
death or disposal of a registered gun is a fact of which the
District should be aware, the District’s registration
requirements as applied to any new owner within the District
should satisfy that interest.
Third, the District argues that it has “an interest in its
residents verifying the whereabouts of their firearms” in order
“to determine when firearms have been lost or stolen.”
District law, however, separately requires a gun owner to
report the loss or theft of a weapon “immediately upon
23
discovery” of the loss or theft, and imposes a monetary
penalty for failure to do so. Id. § 7-2502.08(a)(1). In
contrast, the re-registration provision imposes no penalty for
failure to re-register except the revocation of one’s
registration certificate, but a person whose weapon has been
lost or stolen no longer has need of a certificate. Although the
District fails to make the argument express in its brief, the
report of its Committee on the Judiciary, on which the brief
relies in general, asserted that the re-registration provision
may complement the loss-reporting provision because it
“likely causes the owner to look for his or her gun if it hasn’t
been used” for a while, but that is mere speculation. The re-
registration process requires only that a gun owner affirm that
he still has the registered weapon; it does not require the gun
owner physically to examine the weapon. See id. § 7-
2502.07a. Therefore, there is no reason to believe that an
owner who does not suspect his gun has been lost or stolen is
likely to look for the registered weapon prior to re-registering
it.
iv. Fees, D.C. Code § 7-2502.05
Heller argues “[t]he District may not condition exercise
of a fundamental constitutional right on the creation of a
burdensome registration regime and then justify imposing
‘administrative costs’ to pay for it.” He does not argue the
registration fees of $13 per firearm and $35 for fingerprinting,
D.C. Mun. Regs. tit. 24, § 2320.3(c)(3), are unreasonably
high.
As we already said in Heller II, “administrative …
provisions incidental to the underlying regime” — which
include reasonable fees associated with registration — are
lawful insofar as the underlying regime is lawful. 670 F.3d at
1249 n.*; see also Cox v. New Hampshire, 312 U.S. 569, 577
24
(1941) (holding, in response to a First Amendment challenge
to a parade licensing statute, that a government may impose a
fee “to meet the expense incident to the administration of the
act and to the maintenance of public order in the matter
licensed”); Kwong v. Bloomberg, 723 F.3d 160, 165–69 (2d
Cir. 2013) (holding constitutional a $340 fee for a license to
possess a handgun in one’s home). As such, reasonable fees
associated with the constitutional requirements of registration
and fingerprinting are also constitutional.
v. Education requirements, D.C. Code §§ 7-
2502.03(a)(10), 7-2502.03(a)(13)
The District has presented substantial evidence from
which it could conclude that training in the safe use of
firearms promotes public safety by reducing accidents
involving firearms, but has presented no evidence from which
it could conclude that passing a test of knowledge about local
gun laws does so. The safety training, therefore, is
constitutional; the test of legal knowledge is not.
Regarding the one-hour firearms safety course, available
online or at the MPD, FIREARMS SAFETY TRAINING COURSE,
https://dcfst.mpdconline.com/ (last visited Aug. 21, 2015), the
District’s experts each testified to their belief in the value of
training to prevent accidents. Heller responds that “the
District’s experts cite no studies showing that mandatory
training or testing in gun safety reduce unintentional
discharges.” The District, however, need not present such
evidence. Rather, the Supreme Court has “permitted litigants
to justify … restrictions … based … on history, consensus,
and simple common sense” when the three are conjoined. Cf.
Lorillard Tobacco Co., 533 U.S. 525, 555 (2001) (internal
quotation marks omitted). In this case, the District has
offered anecdotal evidence showing the adoption of training
25
requirements “in most every law enforcement profession that
requires the carrying of a firearm” and a professional
consensus in favor of safety training. 3 Though its experts
have characterized the training requirement as a matter of
“common sense,” this is not a case in which the District has
asked the court to rule upon the basis of “common sense”
alone.
None of the District’s experts, however, offers any reason
to believe that knowledge of the District’s gun laws will
promote public safety. Indeed, the closest the District’s
experts came to addressing the subject was the statement by
Chief Lanier that “in order to make registrants more clearly
accountable under the law, it is important to be able to
demonstrate that they were taught and aware of the
requirements.” This assertion, however, does not tie
knowledge of the law to the District’s interest in public safety.
Furthermore, even if acquiring knowledge of the law
were demonstrably helpful, the imposition of a requirement
that registrants prove their knowledge of the law on “a test
prescribed by the Chief” is an additional burden, see D.C.
Code § 7-2502.03(10), the utility of which is supported by no
evidence whatsoever, not even anecdotal evidence.
Moreover, only a few of the 15 questions in the test actually
3
J.A. 394 (Lanier declaration) (“California, Connecticut, Hawaii,
Massachusetts, and Michigan all have laws requiring some sort of
training or safety certification as part of the registration process,
and other jurisdictions are considering instituting similar
requirements”); J.A. 407 (Vince declaration) (stating that he “do[es]
not know of one firearm expert or law enforcement trainer who has
not strongly recommended attending and successfully passing a
safety course prior to owning or using a firearm”).
26
prescribed by the Chief plausibly reflect a concern with public
safety. 4
Because the District has offered no evidence from which
the court can infer it reasonably concluded that knowledge of
its gun laws, as shown by passing its test, will promote public
safety, on this record the requirement must be held
constitutionally invalid.
vi. One-pistol-per-month rule, D.C. Code. § 7-
2502.03(e)
The District has not presented substantial evidence to
support the conclusion that its prohibition on the registration
of “more than one pistol per registrant during any 30-day
period,” D.C. Code § 7-2502.03(e), “promotes a substantial
governmental interest that would be achieved less effectively
absent the regulation.” Heller II, 670 F.3d at 1258 (quoting
Rock Against Racism, 491 U.S. at 782-83). It is therefore
unconstitutional.
The District argues that the limitation could reduce gun
trafficking and that it would further promote public safety by
limiting the number of guns in circulation, as the District
“could reasonably conclude that more guns lead to more gun
theft, more gun accidents, more gun suicides, and more gun
crimes.”
4
Compare J.A. 834 (“When handling a firearm, you should always:
(A) Treat it as if it is loaded; (B) Point it in a safe direction; (C)
Both A and B”) with J.A. 834 (“To purchase ammunition in the
District of Columbia you must have the following in your
possession: (A) A U.S. Passport; (B) A valid firearm registration
certificate; (C) A valid driver’s license”).
27
As for the District’s first argument, what little expert
testimony it presented indeed indicates that limiting gun
purchases in turn might limit trafficking in weapons. The
experts’ conclusion that limiting gun registrations would
likewise reduce trafficking is, however, unsupported by the
evidence. For example, Chief Lanier stated “[s]tudies have
shown that laws restricting the registration or purchase of
multiple firearms in a given period are effective in disrupting
illegal interstate trafficking of firearms.” Yet the only study
she and the District’s other witnesses cited has nothing to do
with “laws restricting registration,” as its title attests. See
Douglas S. Weil & Rebecca C. Knox, Effects of Limiting
Handgun Purchases on Interstate Transfer of Firearms, 275
J. AM. MED. ASS’N 1759 (1996). One of the experts also
testified from his own observation that when Virginia limited
firearm purchases to one every 30 days, fewer guns bought in
Virginia were used in crimes committed in the District;
traffickers, he observed, instead sourced more guns through
straw purchasers in Maryland. But even if this is true, the
suggestion that a gun trafficker would bring fewer guns into
the District because he could not register more than one per
month there lacks the support of experience and of common
sense. Indeed, as Heller notes, even Chief Lanier
acknowledged that the efficacy of purchasing limitations in
preventing trafficking may have little bearing upon the
efficacy of registration limitations in doing so.
As for the District’s second argument, one of its experts
testified that, in his opinion, “the most effective method of
limiting misuse of firearms, including homicide, suicide, and
accidental injuries, is to limit the number of firearms present
in a home.” Accepting that as true, however, it does not
justify restricting an individual’s undoubted constitutional
right to keep arms (plural) in his or her home, whether for
self-defense or hunting or just collecting, because, taken to its
28
logical conclusion, that reasoning would justify a total ban on
firearms kept in the home. See Parker v. District of
Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007), aff’d sub nom.
Heller I (rejecting the District’s argument that a ban on one
type of gun was constitutional because the “prohibition …
[did] not threaten total disarmament” and noting that, if such
argument were adopted “[i]t could similarly be contended that
all firearms may be banned so long as sabers were
permitted”).
III. Conclusion
For the reasons set forth above, the district court’s final
order is AFFIRMED with respect to: the basic registration
requirement as applied to long guns, D.C. Code § 7-
2502.01(a); the requirement that a registrant be fingerprinted
and photographed and make a personal appearance to register
a firearm, D.C. Code § 7-2502.04; the requirement that an
individual pay certain fees associated with the registration of
a firearm, D.C. Code § 7-2502.05; and the requirement that
registrants complete a firearms safety and training course,
D.C. Code § 7-2502.03(a)(13). The district court’s order is
REVERSED with respect to the requirement that a person
bring with him the firearm to be registered, D.C. Code § 7-
2502.04(c); the requirement that a gun owner re-register his
firearm every three years, D.C. Code § 7-2502.07a; the
requirement that conditions registration of a firearm upon
passing a test of knowledge of the District’s firearms laws,
D.C. Code § 7-2502.03(a)(10); and the prohibition on
registration of “more than one pistol per registrant during any
30-day period,” D.C. Code § 7-2502.03(e).
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in part and dissenting in part: Regulating firearms in order to
combat gun violence is a grave and complex task. The
Supreme Court has made that legislative endeavor
considerably more difficult by “tak[ing] certain policy choices
off the table,” Dist. of Columbia v. Heller, 554 U.S. 570, 636
(2008), and divining a new—and incomplete, see id. at 635—
definition of what the Second Amendment protects. Heller
has “hand[ed] our democratic destiny to the courts” by
inviting litigants to draw them into this political thicket.
J. Harvie Wilkinson III, Of Guns, Abortions, and the
Unraveling Rule of Law, 95 VA. L. REV. 253, 257 (2009).
Happily, the “dominoes” have not fallen as quickly as
expected, Heller, 554 U.S. at 680 (Stevens, J., dissenting), as
most of our sister circuits have afforded a healthy level of
deference to the law-makers. But today I fear the majority
has initiated a retreat—at least in part—from the practice of
restraint.
My colleagues uphold six District of Columbia firearms
laws but strike down four of them. Because I would uphold
them all, I concur in part and dissent in part. In my view, the
firearms laws that my colleagues invalidate (hereinafter, the
remaining laws) satisfy intermediate scrutiny and,
accordingly, I would affirm the well-reasoned decision of the
district court. See 45 F. Supp. 3d 35 (D.D.C. 2014).
I. GENERAL PRINCIPLES
Since the Supreme Court’s decision in Heller, this Court
analyzes Second Amendment challenges under a two-step
framework. First, we ask whether the law “impinges upon”
Second Amendment rights, i.e., whether it has “more than a
de minimis effect” on the right to keep and bear arms. Heller
v. Dist. of Columbia (Heller II), 670 F.3d 1244, 1252–53
(D.C. Cir. 2011). Second, if it does, we evaluate it under “the
appropriate level of constitutional scrutiny.” Id. at 1252. In
2
an earlier iteration of this case, we concluded that the
challenged laws were “not de minimis” because they were
“novel” and “ma[d]e it considerably more difficult for a
person lawfully to acquire and keep a firearm . . . [for] self-
defense in the home.” Id. at 1255 (citing Heller, 554 U.S. at
630). We also determined that intermediate scrutiny, not
strict scrutiny, is the proper yardstick because the laws “do
not severely limit the possession of firearms.” Id. at 1257
(alteration and quotation marks omitted).
Intermediate scrutiny has its genesis in the Supreme
Court’s equal protection and free speech jurisprudence. See,
e.g., Craig v. Boren, 429 U.S. 190, 197 (1976); United States
v. O’Brien, 391 U.S. 367, 377 (1968). It is a middle-ground
approach that “offer[s] proper protection in the many
instances in which a statute adversely affects constitutionally
protected interests but warrants neither near-automatic
condemnation (as ‘strict scrutiny’ implies) nor near-automatic
approval (as is implicit in ‘rational basis’ review).” United
States v. Alvarez, 132 S. Ct. 2537, 2552 (2012) (Breyer, J.,
concurring in judgment). It essentially imposes a balancing
test: the law is constitutional if “the governmental interest
outweighs the burden [on constitutional rights] and cannot be
achieved by means that do not infringe . . . rights as
significantly.” Minneapolis Star & Tribune Co. v. Minn.
Comm’r of Revenue, 460 U.S. 575, 585 n.7 (1983). “[T]he fit
between the challenged regulation and the asserted objective
need only be reasonable, not perfect,” Schrader v. Holder,
704 F.3d 980, 990 (D.C. Cir. 2013) (alterations and quotation
marks omitted), and the challenged law “need not be the least
restrictive or least intrusive means of” achieving the
government’s interest, Ward v. Rock Against Racism, 491
U.S. 781, 798 (1989).
3
The application of intermediate scrutiny “varies to some
extent from context to context, and case to case.” Bartnicki v.
Vopper, 200 F.3d 109, 124 (3d Cir. 1999), aff’d, 532 U.S. 514
(2001). In this case and context, I believe the following
principles should shape our analysis.
First, the nature of firearms regulation requires ample
deference to the legislature. We have previously held that, in
the Second Amendment context, “we afford ‘substantial
deference to the predictive judgments of [the legislature].’ ”
Schrader, 704 F.3d at 990 (quoting Turner Broad. Sys., Inc. v.
FCC (Turner I), 512 U.S. 622, 665 (1994)). This is because
“the legislature is far better equipped than the judiciary to
make sensitive public policy judgments (within constitutional
limits) concerning the dangers in carrying firearms and the
manner to combat those risks.” Id. (quotation marks omitted).
Firearm policy is a “complex and dynamic” issue implicating
“vast amounts of data” that the legislature is “far better
equipped” to gather and analyze. Turner I, 512 U.S. at 665–
66. Such “information can be difficult to obtain and the
impact of certain conduct difficult to assess,” Holder v.
Humanitarian Law Project, 561 U.S. 1, 34 (2010), due to the
different challenges facing different jurisdictions and the
multiple factors that contribute to gun violence. Indeed, the
data that does exist is either incomplete or influenced by
partisanship:
Few topics in the realm of U.S. justice and politics
elicit a more polarizing response than that of gun
control. . . . At the center of the debate is the
fundamental question of whether firearms,
specifically those owned and wielded by private
citizens, do more harm than good in deterring violent
crime. Despite intense scrutiny from so many fields,
however, scholars have reached few solid
4
conclusions to date. The answers to even basic
questions (who is victimized, how many are
victimized, and at what cost are they victimized) are
fiercely disputed, resulting in a nebulous yet hotly
contested understanding of the interplay between
guns and crime. . . . Data exists to support both
sides; the difficulty lies in separating partisanship
and underlying attitudes from empirical observation
and objective analysis. In truth, the isolation of such
objectivity may be a logical impossibility.
II AMERICAN POLITICAL CULTURE: AN ENCYCLOPEDIA 505–
06 (Michael Shally-Jensen ed. 2015). Intermediate scrutiny is
a flexible framework that allows for different perspectives and
a range of approaches to firearms regulation. See Fla. Bar v.
Went For It, Inc., 515 U.S. 618, 632 (1995) (intermediate
scrutiny does not require “the single best disposition” to
problem); Time Warner Entm’t Co., L.P. v. United States, 211
F.3d 1313, 1322 (D.C. Cir. 2000) (“In applying intermediate
scrutiny, we inquire ‘not whether Congress, as an objective
matter, was correct . . . .’ ” (quoting Turner Broad. Sys., Inc.
v. FCC (Turner II), 520 U.S. 180, 211 (1997) (emphasis
added))).
Indeed, judicial humility is especially important in the
context of firearms regulation. Although our Second
Amendment precedent draws on First Amendment and
voting-rights cases, see, e.g., Heller II, 670 F.3d at 1257, the
right to bear arms is meaningfully different from the rights to
speak and vote. See Bonidy v. USPS, 790 F.3d 1121, 1126
(10th Cir. 2015) (“The risk inherent in firearms and other
weapons distinguishes the Second Amendment right from
other fundamental rights that . . . can be exercised without
creating a direct risk to others.”). At the same time, however,
the Second Amendment is not a “second-class right,”
5
McDonald v. City of Chi., 561 U.S. 742, 780 (2010)
(plurality), but the reality of gun violence means our
constitutional analysis should incorporate deference to the
legislature, see Humanitarian Law Project, 561 U.S. at 34–
36. One of our sister circuits said it well:
This is serious business. We do not wish to be even
minutely responsible for some unspeakably tragic act
of mayhem because in the peace of our judicial
chambers we miscalculated as to Second
Amendment rights. . . . If ever there was an occasion
for restraint, this would seem to be it.
United States v. Masciandaro, 638 F.3d 458, 475–76 (4th Cir.
2011).
Second, the District of Columbia is sui generis. The
plaintiffs are quick to point out that the District’s firearms
laws are the toughest in the country and that a few have no
parallel in other jurisdictions. But their point is unhelpful if
the District is different from other jurisdictions. And it is.
Most notably, the District is the seat of our national
government. The record amply documents the unique
security risks presented by a city full of high-level
government officials, diplomats, monuments, parades,
protests and demonstrations and, perhaps most pertinent,
countless government buildings where citizens are almost
universally prohibited from possessing firearms. See, e.g., 18
U.S.C. § 930(a), (g)(1) (unlawful to “knowingly possess[] or
cause[] to be present a firearm or other dangerous weapon in
. . . a building or part thereof owned or leased by the Federal
Government, where Federal employees are regularly present
for the purpose of performing their official duties,” other than
a Federal court facility); id. § 930(e)(1) (unlawful to
“possess[] or cause[] to be present a firearm or other
6
dangerous weapon in a Federal court facility”); 40 U.S.C.
§ 5104(e)(1)(A) (unlawful to “carry on or have readily
accessible to any individual on the Grounds or in any of the
Capitol Buildings a firearm”); see also 18 U.S.C.
§ 922(q)(2)(A) (making schools gun-free zones); Lanier Test.
2–5. Indeed, walking around this town, one gets the
impression that it is one big government building. Cf. Heller,
554 U.S. at 626 (“the right secured by the Second
Amendment is not unlimited” and can give way to regulations
of “the carrying of firearms in sensitive places” like
“government buildings”). Although the Constitution does not
stop at the Beltway, our analysis should account for the
unique challenges that confront the District as it struggles to
regulate firearms in our Nation’s capital. See City of L.A. v.
Alameda Books, Inc., 535 U.S. 425, 439–40 (2002) (“A
municipality considering an innovative solution may not have
data that could demonstrate the efficacy of its proposal
because the solution would, by definition, not have been
implemented previously.”).
II. THE REMAINING LAWS
My colleagues strike down the District’s laws requiring
registrants to pass a knowledge test, D.C. CODE § 7-
2502.03(a)(10); present their firearms for inspection, id. § 7-
2502.04(c); renew their registration every three years, id. § 7-
2502.07a(a); and register no more than one pistol per month,
id. § 7-2502.03(e). I address these laws seriatim and explain
why, in my view, each one satisfies intermediate scrutiny.
A. Knowledge Test
Before an individual can register a gun, he must
demonstrate his knowledge of the District’s firearms laws by
passing a test. Id. § 7-2502.03(a)(10). The test is not
particularly onerous: it consists of two pages with thirteen
7
multiple-choice questions and two True/False questions. 1 The
examinee must answer eleven questions correctly (a score of
70%). He need pass the test only once, id., and he can retake
it as many times as he wants. See 24 DCMR § 2311.7–.8.
The test is intended to ensure gun owners have a “basic level
of knowledge” about the District’s firearms laws. Comm.
Report 17. Those laws, in turn, promote the public safety. Id.
The plaintiffs contend, and my colleagues agree, that the
District presented “no evidence” its knowledge test furthers
its alleged interests. Appellants’ Br. 53–54; Maj. Op. 24. But
the notion that test-taking promotes knowledge is obvious—
ask any teacher, student or professional licensing board in the
country. See Delaware v. Prouse, 440 U.S. 648, 658 (1979)
(“States have a vital interest in ensuring that only those
qualified to do so are permitted to operate motor vehicles . . .
[and] are sufficiently familiar with the rules of the road
. . . .”); Levitt v. Comm. for Pub. Educ. & Religious Liberty,
413 U.S. 472, 480 (1973) (“a regular program of traditional
internal testing designed to measure pupil achievement” plays
an “obviously integral role . . . in the total teaching process”);
Schware v. Bd. of Bar Exam., 353 U.S. 232, 239 (1957) (“A
State can require high standards of qualification, such as . . .
proficiency in its law, before it admits an applicant to the bar
. . . .”). Several of the District’s experts testified to that effect.
1
The questions are not difficult. Consider, for example,
Question 3:
Firearms may be lawfully discharged on public space in the
District of Columbia:
(A) Into the air on New Year’s Eve.
(B) At registered turkey hunts on Thanksgiving.
(C) After obtaining a special written permit from the
Chief of Police authorizing the weapon to be
discharged on public space.
8
See Lanier Decl. ¶¶ 23–24; Jones Decl. ¶ 23; Webster Decl.
¶ 35; Lanier Test. 2; Jones Report 10. Under intermediate
scrutiny, the District does not need to cite empirical studies
for the common-sense notion that mandatory testing promotes
knowledge of, and obedience to, its laws. See Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001) (“[W]e have
permitted litigants . . . even[] in a case applying strict
scrutiny, to justify restrictions based solely on history,
consensus, and ‘simple common sense.’ ” (quoting Went For
It, 515 U.S. at 628 (emphasis added)); Nat’l Cable &
Telecomms. Ass’n v. FCC, 555 F.3d 996, 1002 (D.C. Cir.
2009) (we do not require “exhaustive evidence documenting
the necessity of [a given law]” and we have “relied on [the
legislature’s] reasonable, commonsense determination that
[the law is] required”). See generally Nixon v. Shrink Mo.
Gov’t PAC, 528 U.S. 377, 391 (2000) (“The quantum of
empirical evidence needed to satisfy heightened judicial
scrutiny of legislative judgments will vary up or down with
the novelty and plausibility of the justification raised.”).
The plaintiffs do not identify any alternative means by
which the District can achieve its goals. Their implied
alternative—no test at all—is plainly lacking. Given the
uniqueness and complexity of the District’s firearms laws, it
has an especially pressing need to educate its citizens about
their contents. Under intermediate scrutiny, the District can
“add[] a prophylaxis to the law,” even if it “focuses upon
behavior already arguably proscribed by other laws.” Time
Warner, 211 F.3d at 1320; see also United States v. Mahin,
668 F.3d 119, 127 (4th Cir. 2012) (“The Second Amendment
does not disable Congress and the states from erecting
preventative measures . . . .” (emphasis added)). Granted, in
criminal cases, courts usually presume that individuals know
the law. See McFadden v. United States, 135 S. Ct. 2298,
2304 (2015) (“[I]gnorance of the law is typically no defense
9
to criminal prosecution . . . .”). But this presumption is a legal
fiction, not an accurate description of the world. See McBoyle
v. United States, 283 U.S. 25, 27 (1931); see also JOHN
SELDEN, TABLE-TALK 174 (Constable & Co. 1827)
(“Ignorance of the law excuses no man; not that all men know
the law, but because ‘tis an excuse every man will plead, and
no man can tell how to confute him.” (emphasis added)). All
too often, individuals do not know the law and legislatures do
well to ensure they are informed before they can own and use
a dangerous weapon.
In sum, I believe the District’s knowledge test satisfies
intermediate scrutiny. It ensures a gun owner has a basic
understanding of the District’s firearms laws—laws that
unquestionably promote the public safety.
B. Presenting the Firearm
The Metropolitan Police Department (MPD) can require
a potential registrant to present his firearm for inspection.
D.C. CODE § 7-2502.04(c). The law has an obvious,
straightforward purpose: verification. See Appellees’ Br. 47–
48; Defs.’ Summ. J. Reply Br. 25 n.21. The MPD wants to
conduct a physical inspection to “verify that the application
information is correct and that the firearm has not been
altered.” Appellees’ Br. 47–48; see 24 DCMR § 2313.8(c)
(“The Director may require an applicant to return with the
firearm if . . . the information relating to the weapon on the
application [appears] incorrect, misleading, or incomplete.”).
It also wants to ensure the firearm is in safe operating
condition and does not belong to a prohibited class of
weapons. See 24 DCMR § 2313.8(b) (“The Director may
require an applicant to return with the firearm if . . . the
firearm may be unregisterable, defective, or in a dangerous
condition or state of disrepair.”).
10
The plaintiffs contend, and my colleagues agree, that
physically inspecting a firearm is unnecessary because no one
would both register a firearm and lie about its physical
characteristics—they would simply decline to register it in the
first place. See Maj. Op. 21. But the present-the-firearm
requirement is not targeted at falsehoods only; the District is
also worried about innocent mistakes. See 24 DCMR
§ 2313.8(c) (“The Director may require an applicant to return
with the firearm if . . . the application [appears] incorrect . . .
or incomplete.” (emphases added)). And many registrants
will not be aware that their firearm is unsafe to operate or
ineligible to be registered, see id. § 2313.8(b), until they
present it and allow the MPD to take a closer look.
The plaintiffs further contend that the District’s interest
in verification is outweighed by the burdens that presenting
the firearm imposes on registrants. According to the
plaintiffs, a person who presents his firearm to the MPD could
be arrested, have his gun stolen or be mistaken for an
assailant. These risks, in my mind, are quite overblown. For
starters, it is not a crime to transport a firearm to the MPD for
the purpose of registering it. See D.C. CODE §§ 22-4504.01;
22-4504.02(a); 18 U.S.C. § 926a. Moreover, registrants are
instructed to leave their firearm at home unless asked to
present it, 24 DCMR § 2313.7, and must transport the firearm
“in accordance with [section] 22-4504.02,” D.C. CODE § 7-
2502.04(c)—i.e., unloaded, stored in a locked container,
separate from any ammunition and inaccessible to the driver
and any passenger, see id. § 22-4504.02(b)–(c). These
provisions minimize the risk of an accident. And any
remaining risk of theft or misunderstanding is an inherent
feature of owning a firearm—not a unique problem created by
the District’s laws.
11
Accordingly, I believe the present-the-firearm
requirement satisfies intermediate scrutiny. It imposes a
slight burden on registrants and allows the District to verify
that the firearm is described correctly, has not been altered, is
safe to operate and is eligible for registration.
C. Re-Registration
The District’s registration certificates expire every three
years. Id. § 7-2502.07a(a). Thus, a gun owner who wants to
maintain his registration must periodically renew it. Id.
Renewal is “simple” by design. Comm. Report 10. The
registrant fills out a two-page form online, by mail or in
person. D.C. CODE § 7-2502.07a(c). The form includes a
questionnaire to determine whether the registrant remains
qualified to possess a firearm and requests his current address
and an attestation that he continues to possesses the firearm.
See Firearms Registration Renewal Application, METRO.
POLICE DEP’T, available at http://mpdc.dc.gov/sites/default/
files/dc/sites/mpdc/publication/attachments/Firearms%20Regi
stration%20Renewal%20Form%2012.18.13.pdf (last visited
September 17, 2015). 2 The District reminds a registrant to
renew his certificate ninety days in advance, D.C. CODE § 7-
2502.07a(e)(1), and gives him a ninety-day grace period after
2
To renew the certificate for a firearm registered before
January 1, 2011, a registrant must also appear in person and be
fingerprinted. See 24 DCMR § 2326.2. This process is a one-time
requirement and does not apply to subsequent renewals. See
Firearms Registration Renewal: Complete Renewal Procedures,
METRO. POLICE DEP’T, available at http://mpdc.dc.gov
/page/firearms-registration-renewal-complete-renewal-procedures
(last visited September 17, 2015) (“Subsequent registration
renewals will be done online or by mail.”). It is constitutional for
the same reasons that the re-registration, fingerprinting and in-
person appearance requirements are constitutional.
12
the renewal period expires, see 24 DCMR § 2326.4. Re-
registration serves several purposes. It promotes public safety
by allowing the District to monitor whether a gun owner has
fallen into a class of people who cannot legally possess a
firearm (e.g., felons, the mentally ill, subjects of protective
orders). See Comm. Report 4, 11–12; Jones Decl. ¶ 23;
Lanier Decl. ¶ 21; Vince Decl. ¶ 22; Webster Decl. ¶ 30. And
it keeps the District’s firearms registry up to date. See Comm.
Report 4, 10. The MPD needs updated information, including
the registrant’s most recent address, so that it knows where to
retrieve the firearm if the owner becomes disqualified to
possess it. See Lanier Decl. ¶ 21; Webster Decl. ¶ 30; see
also Appellees’ Br. 48 (“The District . . . has a population that
is significantly more transient than other states.”). Moreover,
re-registration helps combat the loss and illegal transfer of
firearms by requiring a registrant to account for his weapons
on a regular basis and by providing MPD with “up-to-date
information about the firearm’s last legal whereabouts.”
Comm. Report 11; see also id. at 8, 10; Webster Decl. ¶ 30.
The plaintiffs argue that the District could achieve each
of these goals with less burdensome alternatives. As for
ensuring that a registrant does not fall into a disqualified
class, the plaintiffs note that the District is free to run
background checks whenever it pleases. Yet background
checks are less efficient and effective than a universal re-
registration requirement, the latter ensuring that everyone
remains eligible to own a firearm. See Jones Decl. ¶ 24 (re-
registration provides “mandatory accountability to . . . public
safety officials”); id. at ¶ 23 (re-registration “compels a
systemic review of all legally registered firearms and
registrants”). “Of course, administrative convenience and
economic cost-saving are not, by themselves, conclusive
justifications for burdening a constitutional right under
intermediate scrutiny. However, such considerations are
13
relevant to [the Second Amendment analysis].” Bonidy, 790
F.3d at 1127 (emphasis added). At bottom, the District needs
to show that re-registration does not burden “substantially
more [rights] than is necessary,” not that it is the “least
intrusive means” of keeping tabs on gun owners. McCullen v.
Coakley, 134 S. Ct. 2518, 2535 (2014) (quoting Ward, 491
U.S. at 798–99). Assuming they could reveal all the reasons
someone might become disqualified to possess a firearm (a
dubious proposition, see generally D.C. CODE § 7-
2502.03(a)), I fail to see how dragnet background checks are
“substantially” less burdensome than filling out a two-page
form every three years. McCullen, 134 S. Ct. at 2535.
Moreover, background checks plainly do not further the
District’s interests in updating its firearms registry and
promoting accountability of gun owners.
As for the latter interests, the plaintiffs point out that a
gun owner is already required to notify the District if he
changes his address or loses his firearm. See D.C. CODE § 7-
2502.08(a). But the District tried to rely on registrant
notification for several years and the experiment failed.
According to the Committee Report, “[relying on notification
alone] has not been effective. Thousands of registrants have
moved, died, disposed of their guns (or perhaps lost them) and
have not notified MPD. . . . [M]any registrants cannot be
located.” Comm. Report 10; see also Jones Decl. ¶ 24.
Instead of continuing to depend on registrant-initiated
notification, the District’s re-registration requirement provides
“mandatory accountability” by forcing a registrant to update
his information under threat of cancellation. Jones Decl. ¶ 24;
see also Vince Decl. ¶ 22; Webster Decl. ¶ 30 (re-registration
“is analogous to the widely-accepted Federal requirement that
licensed gun dealers be audited periodically to make sure that
they can account for their firearms”). This is a permissible
alternative under intermediate scrutiny. See Nat’l Cable &
14
Telecomm’ns Ass’n, 555 F.3d at 1002 (affirming opt-in
scheme because “opt-out is only marginally less intrusive than
opt-in” and agency “carefully considered the differences
between the[] two” and made “reasonable, commonsense
determination” (citation omitted)). “[T]he Constitution does
not require that the [District] choose ineffectual means.”
Rosario v. Rockefeller, 410 U.S. 752, 762 n.10 (1973).
My colleagues do not believe the re-registration
requirement deters the loss or illegal transfer of firearms
because it does not require a registrant to produce the gun; it
“requires only that [he] affirm that he still has [it].” Maj. Op.
23. In other words, my colleagues believe registrants will not
be truthful on their re-registration forms. The plaintiffs do not
make this argument in their briefs, however, so we need not—
indeed, should not—consider it. See Schrader, 704 F.3d at
991–92. Nor is the argument persuasive. A re-registrant must
attest, under penalty of perjury, that he still possesses the
firearm. See Firearms Registration Renewal Application,
supra, at 11. In my view, the District reasonably assumes that
most re-registrants will tell the truth. Cf. Rehberg v. Paulk,
132 S. Ct. 1497, 1505 (2012) (threat of perjury prosecution
adequately deters false testimony).
In short, I believe the District’s re-registration
requirement passes constitutional muster. It imposes only
minimal burdens on Second Amendment rights and
simultaneously satisfies the District’s interests in preventing
disqualified people from owning firearms, keeping the
firearms registry up-to-date and deterring the loss and illegal
transfer of firearms.
D. One Pistol Per Thirty Days
The District prohibits a registrant from registering more
than one pistol in the same thirty-day period. D.C. CODE § 7-
15
2502.03(e); 24 DCMR § 2305.3; see also D.C. CODE § 7-
2501.01(12) (defining “pistol” as “any firearm originally
designed to be fired by use of a single hand or with a barrel
less than 12 inches in length”). This limitation does not apply
to an individual who relocates to the District and wants to
register pistols he lawfully owned in another jurisdiction for
at least six months. D.C. CODE § 7-2502.03(e); 24 DCMR
§ 2305.4. 3 The parties agree that the purpose behind the one-
pistol-per-thirty-days rule is to stem the illegal trafficking of
handguns. See Comm. Report 10, 14–15.
The plaintiffs argue, however, that the one-pistol-per-
month limitation does nothing to further this goal. No one,
they point out, would bring pistols into the District, register
them and then traffic them. The person would simply never
register the pistols at all. But the plaintiffs focus on the
wrong side of the equation. The one-pistol-per-thirty-days
limitation is directed at the supply side, rather than the
demand side, of illegal handgun trafficking. As stated in the
Committee Report:
The law burdens gun traffickers and the straw
purchasers they hire to supply them with guns, and it
makes it more difficult for the rare dirty gun dealer
who is willing to look the other way when a single
individual walks in to his store asking to buy five or
10 or even 20 or more inexpensive handguns to be
sold on the street.
Comm. Report 16 (quoting Douglas Weil, A Law that Gun-
Rights Advocates Should Be Fighting to Keep, WASH. POST
3
And the one-pistol-per-thirty-days limitation applies to the
initial registration only; an individual can simultaneously re-
register as many pistols as he wants. See 24 DCMR § 2305.3.
16
(Feb. 17, 2012), http://www.washingtonpost.com
/opinions/a-law-that-gun-rights-advocates-should-be-fighting-
to-keep/2012/02/16/gIQAvcASKR_story.html); see also
Jones Decl. ¶ 18; Lanier Decl. ¶ 29; Vince Decl. ¶ 17. In
other words, the one-pistol-per-thirty-days limitation deters
dealers from selling more than one handgun at a time because
they know multiple handguns cannot be registered and, thus,
cannot be possessed or used for a lawful purpose. The
Committee Report points to Virginia as an example of a
jurisdiction that, after enacting a similar law, successfully
reduced illegal handgun trafficking. See Comm. Report 15–
16; see also Jones Decl. ¶ 19. True, notwithstanding the one-
pistol-per-thirty-days limitation, a firearms trafficker could
acquire handguns from another jurisdiction and transport
them into the District. See Maj. Op. 27. But the law
nonetheless deters the rapid acquisition of multiple firearms
within the District. See Comm. Report 16 (“Since other states
permit multiple gun sales—including, now, Virginia—our
District law remains important. Indeed, the other states
should follow, so as to erect a wide web to frustrate the
traffickers.”) The District need not—indeed, cannot—solve
problems created by the relatively lax firearms laws in other
jurisdictions. Cf. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656,
1668 (2015) (even under strict scrutiny, “[a] State need not
address all aspects of a problem in one fell swoop;
policymakers may focus on their most pressing concerns”). 4
4
My colleagues point out that the sources cited in the
Committee Report discuss limitations on the purchase, not the
registration, of handguns. See Maj. Op. 27. The plaintiffs,
however, do not make this argument and I do not believe we should
do so on their behalf. See Schrader, 704 F.3d at 991–92. Even if
we did, I think any distinction between purchase and registration is
immaterial. Because the District prohibits the possession of
17
Given the record evidence supporting it, the one-pistol-
per-thirty-days limitation is constitutional—a conclusion that
is bolstered by the fact that it imposes very little burden on
Second Amendment rights. The plaintiffs contend—and my
colleagues suggest, see Maj. Op. 27–28—that an individual
has as much constitutional right to a second pistol as he does
the first. They note that the Second Amendment discusses the
right to keep and bear “Arms,” plural. See id. But I doubt
their textual point has much force: the Second Amendment
also uses the word “people,” plural, so the “s” on “Arms” is
grammatically necessary. And Heller does not support their
position either. The “core” of the Second Amendment is the
right to use a firearm for self-defense in the home, Heller, 554
U.S. at 630—a right that is vindicated with one handgun. The
plaintiffs’ position has no stopping point: it would authorize
everyone to possess his own Rambo-style armory. Cf. id. at
627 (noting that Second Amendment does not protect right to
form “effective” militia (emphasis added)). In any event, we
need not decide whether the Second Amendment protects the
right to a second firearm as much as the first firearm because,
even assuming it does, the one-pistol-per-month limitation is
only a small (and temporary) limit on Second Amendment
rights. It imposes a thirty-day waiting period on the right to
acquire a second pistol—an acceptable burden, given the
availability of the first pistol, the availability of other firearms
and the deadly costs of illegal handgun trafficking. Cf.
Rosario, 410 U.S. at 760–62 (requiring party registration
eight months in advance of presidential primary is
constitutional means of preventing one party’s voters from
designating themselves as another party’s voters).
unregistered firearms, D.C. CODE § 7-2502.01(a), a limitation on
registration is the functional equivalent of a limitation on purchases.
18
In conclusion, I agree with my colleagues’ decision to
uphold the District’s long-gun registration, registration fee,
in-person appearance, photographing, fingerprinting and
training requirements. Those parts of the majority opinion
display proper deference to the District in its ongoing efforts
to formulate a workable firearms policy for our Nation’s
capital. I believe my colleagues too readily abandon this
approach, however, with respect to the knowledge test,
present-the-firearm, re-registration and one-pistol-per-thirty-
days requirements. Accordingly, I respectfully dissent in part.