Matthew Grace v. DC ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2016 Decided July 25, 2017
No. 16-7025
BRIAN WRENN, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00162)
Alan Gura argued the cause and filed the briefs for
appellants.
Herbert W. Titus, Robert J. Olson, William J. Olson,
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.
Holly M. Johnson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Karl A. Racine,
Attorney General, Todd S. Kim, Solicitor General, and Loren
2
L. AliKhan, Deputy Solicitor General. Richard S. Love,
Assistant Attorney General, entered an appearance.
Adam K. Levin and Jonathan E. Lowy were on the brief for
amicus curiae The Brady Center to Prevent Gun Violence in
support of appellees District of Columbia and Cathy L. Lanier.
Brian E. Frosh, Attorney General, Office of the Attorney
General for the State of Maryland, Joshua N. Auerbach,
Assistant Attorney General, Maura Healey, Attorney General,
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, Ellen
F. Rosenblum, Attorney General, Office of the Attorney
General for the State of Oregon, Robert W. Ferguson, Attorney
General, Office of the Attorney General for the State of
Washington, Kamala D. 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, Douglas S. Chin, Attorney General,
Office of the Attorney General for the State of Hawaii, Lisa
Madigan, Attorney General, Office of the Attorney General for
the State of Illinois, and Tom Miller, Attorney General, Office
of the Attorney General for the State of Iowa, were on the brief
for amici curiae States of Maryland, California, Connecticut,
Hawaii, Illinois, Iowa, Massachusetts, New York, Oregon, and
Washington in support of appellees.
Paul R.Q. Wolfson and Walter A. Smith, Jr. were on the
brief for amici curiae DC Appleseed Center for Law & Justice,
et al. in support of defendants-appellees.
Deepak Gupta was on the brief for amicus curiae
Everytown For Gun Safety in support of appellees.
3
No. 16-7067
MATTHEW GRACE AND PINK PISTOLS,
APPELLEES
v.
DISTRICT OF COLUMBIA AND PETER NEWSHAM, IN HIS
OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE
METROPOLITAN POLICE DEPARTMENT,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-02234)
Loren L. AliKhan, Deputy Solicitor General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellants. With her on the briefs were Karl A. Racine,
Attorney General, Todd S. Kim, Solicitor General, and Holly
M. Johnson, Assistant Attorney General.
Brian E. Frosh, Attorney General, Office of the Attorney
General for the State of Maryland, Joshua N. Auerbach,
Assistant Attorney General, Maura Healey, Attorney General,
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, Ellen
F. Rosenblum, Attorney General, Office of the Attorney
General for the State of Oregon, Robert W. Ferguson, Attorney
General, Office of the Attorney General for the State of
Washington, Kamala D. Harris, Attorney General, Office of
4
the Attorney General for the State of California, George
Jepsen, Attorney General, Office of the Attorney General for
the State of Connecticut, Douglas S. Chin, Attorney General,
Office of the Attorney General for the State of Hawaii, Lisa
Madigan, Attorney General, Office of the Attorney General for
the State of Illinois, and Tom Miller, Attorney General, Office
of the Attorney General for the State of Iowa, were on the brief
for Maryland, California, Connecticut, Hawaii, Illinois, Iowa,
Massachusetts, New York, Oregon, and Washington in support
of appellants.
Paul R.Q. Wolfson and Walter A. Smith, Jr. were on the
brief for amici curiae DC Appleseed Center for Law & Justice,
et al. in support of defendants-appellants.
Deepak Gupta was on the brief for amicus curiae
Everytown for Gun Safety in support of defendants-appellants.
Adam K. Levin and Jonathan Lowy were on the brief for
amicus curiae Brady Center to Prevent Gun Violence in
support of appellants District of Columbia and Cathy L. Lanier.
David H. Thompson argued the cause for appellees. With
him on the brief was Charles J. Cooper, Howard C. Nielson,
Jr., Peter A. Patterson, and John D. Ohlendorf.
Mark Brnovich, Attorney General, Office of the Attorney
General for the State of Arizona, John R. Lopez, IV, Solicitor
General, Keith Miller, Assistant Solicitor General, Alan
Wilson, Attorney General, Office of the Attorney General for
the State of South Carolina, Marty J. Jackley, Attorney
General, Office of the Attorney General for the State of South
Dakota, Ken Paxton, Attorney General, Office of the Attorney
General for the State of Texas, Sean D. Reyes, Attorney
General, Office of the Attorney General for the State of Utah,
5
Patrick Morrisey, Attorney General, Office of the Attorney
General for the State of West Virginia, Brad D. Schimel,
Attorney General, Office of the Attorney General for the State
of Wisconsin, Peter K. Michael, Attorney General, Office of
the Attorney General for the State of Wyoming, Luther
Strange, Attorney General, Office of the Attorney General for
the State of Alabama, Leslie Rutledge, Attorney General,
Office of the Attorney General for the State of Arkansas,
Gregory F. Zoeller, Attorney General, Office of the Attorney
General for the State of Indiana, Chris Koster, Attorney
General, Office of the Attorney General for the State of
Missouri, Timothy C. Fox, Attorney General, Office of the
Attorney General for the State of Montana, Adam Paul Laxalt,
Attorney General, Office of the Attorney General for the State
of Nevada, Michael DeWine, Attorney General, Office of the
Attorney General for the State of Ohio, and E. Scott Pruitt,
Attorney General, Office of the Attorney General for the State
of Oklahoma were on the brief for Arizona, Alabama,
Arkansas, Indiana, Missouri, Montana, Nevada, Ohio,
Oklahoma, South Carolina, South Dakota, Texas, Utah, West
Virginia, Wisconsin, and Wyoming in support of plaintiffs-
appellees.
Dan M. Peterson and C.D. Michel were on the brief for
amici curiae Western States Sheriffs’ Association, et al. in
support of plaintiffs-appellees.
Paul D. Clement, Erin E. Murphy, and Christopher G.
Michel were on the brief for amicus curiae National Rifle
Association of America, Inc. in support of plaintiffs-appellees.
Herbert W. Titus, Robert J. Olson, William J. Olson,
Jeremiah L. Morgan, and John S. Miles were on the brief for
amicus curiae Gun Owners of America, Inc., et al. in support
of plaintiffs-appellees.
6
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge HENDERSON.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
GRIFFITH, Circuit Judge: Constitutional challenges to gun
laws create peculiar puzzles for courts. In other areas, after all,
a law’s validity might turn on the value of its goals and the
efficiency of its means. But gun laws almost always aim at the
most compelling goal—saving lives—while evidence of their
effects is almost always deeply contested. On top of that, the
Supreme Court has offered little guidance. Its “first in-depth
examination of the Second Amendment” is younger than the
first iPhone. District of Columbia v. Heller (Heller I), 554 U.S.
570, 634 (2008). And by its own admission, that first treatment
manages to be mute on how to review gun laws in a range of
other cases. See id. at 634. But listening closely to Heller I
reveals this much at least: the Second Amendment erects some
absolute barriers that no gun law may breach. This lesson will
prove crucial as we consider the challenges presented in these
cases to the District of Columbia’s limits on carrying guns in
public.
I
These cases involve the District’s third major attempt in
forty years at managing what the D.C. Council sees as the
tension between public safety and the Second Amendment. In
1976, the District banned all handgun possession. D.C. Code
§§ 7-2502.01(a), 7-2502.02(a)(4) (2001). When that ban was
struck down in Heller I, the Council followed it with a ban on
carrying. Id. § 22-4504 (2009). And when that was struck
down in Palmer v. District of Columbia, 59 F. Supp. 3d 1737
(D.D.C. 2014), the Council responded with the law challenged
here, which confines carrying a handgun in public to those with
a special need for self-defense.
The challenged D.C. Code provisions direct the District’s
police chief to promulgate regulations limiting licenses for the
concealed carry of handguns (the only sort of carrying the Code
allows) to those showing a “good reason to fear injury to [their]
person or property” or “any other proper reason for carrying a
pistol.” Id. § 22-4506(a)-(b).1 The Code also limits what the
police chief may count as satisfying these two criteria, in the
course of promulgating regulations and issuing licenses.
To receive a license based on the first prong—a “good
reason to fear injury”—applicants must show a “special need
for self-protection distinguishable from the general community
as supported by evidence of specific threats or previous attacks
that demonstrate a special danger to the applicant’s life.” Id.
§ 7-2509.11(1)(A). The police chief’s regulations further limit
licenses granted on this basis to those who “allege, in writing,
serious threats of death or serious bodily harm, any attacks on
[their] person, or any theft of property from [their] person.”
D.C. Mun. Regs. tit. 24 § 2333.2-3.
For those seeking to establish some “other proper reason
for carrying,” the D.C. Code provides that an applicant’s need
to carry around cash or valuables as part of her job is sufficient.
D.C. Code § 7-2509.11(1)(B). Two regulations implementing
this criterion also specify that living or working “in a high
crime area shall not by itself establish a good reason” to carry,
1
The District currently allows some very limited carrying even
without a permit. For example, owners may carry registered
handguns for lawful recreational purposes and within their homes
and places of business. D.C. Code § 22-4504.01.
8
D.C. Mun. Regs. tit. 24 § 2333.4 (emphasis added), but that
having a close relative who is unable to meet his own special
need for self-defense does. Id. § 2334.1.
We will refer to this ensemble of Code provisions and
police regulations simply as the “good-reason” law or
regulation. The D.C. Council thought this scheme justified in
light of studies suggesting that expansive right-to-carry laws
are associated with higher rates of crime and injury to
innocents. The Council also cited the District’s status as an
urban area teeming with officials, diplomats, and major
landmarks.
Before us are conflicting rulings in two cases before
different district judges. Both cases involve plaintiffs denied a
concealed-carry license solely for failing to show a special
need for self-defense. Bringing the first case are Brian Wrenn,
the Second Amendment Foundation, Inc., and two of its other
members. The second case features Matthew Grace and the
Pink Pistols, an organization in which Grace and other
members champion the right of sexual minorities to carry guns
for self-defense.
In each case, the plaintiffs sought a preliminary injunction
barring the District from enforcing the good-reason regulation.
In March 2016, a district judge denied the Wrenn plaintiffs’
motion. Two months later, another district judge granted the
Grace plaintiffs a preliminary injunction barring the District
from enforcing the good-reason law against anyone. We
combine the two appeals, over which we have jurisdiction
under 28 U.S.C. § 1292(a)(1), and must consider all legal
issues de novo, see Abdullah v. Obama, 753 F.3d 193, 197-98
(D.C. Cir. 2014).
9
II
We begin by asking if Grace and Wrenn have met their
burden to show their Second Amendment challenges are likely
to prevail. That question has several components in this case.
In many areas of constitutional law, regulations that impose on
rights are subject to one of three tests that are more or less
stringent depending on the right and the burden at stake. So-
called rational-basis review requires the challenged law to bear
a rational link to a legitimate public interest. Intermediate
scrutiny looks for a substantial link to an important interest.
And strict scrutiny demands that a law be narrowly tailored to
a compelling public interest. See generally Richard H. Fallon,
Jr., Strict Judicial Scrutiny, 54 U.C.L.A. L. Rev. 1267 (2007).
Whether we need that three-tiered framework here is one
issue we will address. Grace and Wrenn hope we can consider
their challenge without bothering to decide which level of
scrutiny to apply to the District’s regulation. In fact, the District
shares that hope. For their part, Grace and Wrenn argue that we
should deem the good-reason regulation invalid without
applying tiers of scrutiny because this regulation is analogous
to the “total ban” that the Supreme Court struck down in Heller
I without pausing to weigh its benefits. The District, by
contrast, thinks the law warrants no particular scrutiny because
it does not burden protected rights at all.
The parties split on what we should do if we ultimately
decide to apply tiers of scrutiny. Under our precedent, if we
apply tiers of scrutiny at all, the proper level to apply would
turn on whether a gun law imposes “substantial[ly]” on the
Second Amendment’s “core.” Heller v. District of Columbia
(Heller II), 670 F.3d 1244, 1257 (D.C. Cir. 2011); see also id.
at 1253, 1256-57. The plaintiffs say the good-reason law does
so, thus inviting strict scrutiny. The District would have us
10
apply intermediate scrutiny on the ground that the law’s burden
is not substantial or falls outside the Amendment’s core.
Whichever path we take, we must determine if the good-
reason law impinges on a “core” Second Amendment right. So
we begin there. The District argues that the Amendment’s core
does not cover public carrying at all, or that it does not protect
carrying in densely populated areas like D.C., or that it does
not extend to carrying unless there is a special need for self-
defense. We take these three arguments in turn before
considering the analysis of other circuit courts. Having thus
judged whether the regulation impinges on core Second
Amendment conduct, we will turn in Part III to determining
and applying the proper form of review for these cases.
A
The “core” or “central component” of the Second
Amendment right to keep and bear arms protects “individual
self-defense,” McDonald v. City of Chicago, 561 U.S. 742,
767-78 (2010) (internal quotation marks omitted), by “law-
abiding, responsible citizens,” Heller I, 554 U.S. at 635—
though subject to certain “longstanding” regulations that limit
the Amendment’s scope, such as bans on possession “by felons
and the mentally ill,” id. No one doubts that under Heller I this
core protection covers the right of a law-abiding citizen to keep
in the home common firearms for self-defense.
Our first question is whether the Amendment’s “core”
extends to publicly carrying guns for self-defense. The District
argues that it does not, citing Heller I’s observation that “the
need for defense of self, family, and property is most acute” in
the home. Id. at 628. But the fact that the need for self-defense
is most pressing in the home doesn’t mean that self-defense at
home is the only right at the Amendment’s core. After all, the
11
Amendment’s “core lawful purpose” is self-defense, id. at 630,
and the need for that might arise beyond as well as within the
home. Moreover, the Amendment’s text protects the right to
“bear” as well as “keep” arms. For both reasons, it’s more
natural to view the Amendment’s core as including a law-
abiding citizen’s right to carry common firearms for self-
defense beyond the home (subject again to relevant
“longstanding” regulations like bans on carrying “in sensitive
places”). Id. at 626.
This reading finds support in parts of Heller I that speak
louder than the Court’s aside about where the need for guns is
“most acute.” That remark appears when Heller I turns to the
particular ban on possession at issue there. By then the Court
has spent over fifty pages giving independent and seemingly
equal treatments to the right to “keep” and to “bear,” first
defining those “phrases” and then teasing out their
implications. See id. at 570-628. In that long preliminary
analysis, the Court elaborates that to “bear” means to “‘wear,
bear, or carry . . . upon the person or in the clothing or in a
pocket, for the purpose . . . of being armed and ready for
offensive or defensive action in a case of conflict with another
person.’” Id. at 584 (quoting Muscarello v. United States, 524
U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). That
definition shows that the Amendment’s core must span, in the
Court’s own words, the “right to possess and carry weapons in
case of confrontation.” Id. at 592 (emphasis added).
This first gloss on the Amendment’s text and Heller I’s
reasoning is reinforced by the history that Heller I deems
essential for tracing the “pre-existing right” embodied by the
Amendment. Id. at 592. Heller I pores over early sources to
show that while preventing Congress from eliminating state
militias was the “purpose that prompted the [Amendment’s]
codification,” that purpose did not limit the right’s substance,
12
which encompassed the personal right to armed self-defense.
Id. at 599-600. Crucially, Heller I winds its way to this
conclusion through a parade of early English, Founding-era,
antebellum, and late-nineteenth century cases and
commentaries. Those same sources attest that the Second
Amendment squarely covers carrying beyond the home for
self-defense.
Most of the relevant nineteenth-century cases, for
example, assume the importance of carrying as well as
possessing. Each puts another crack in the District’s argument
that carrying was peripheral to the right protected by the
Amendment. See Heller I, 554 U.S. at 611-14, 629 (citing State
v. Reid, 1 Ala. 612, 616-17 (1840) (allowing restrictions on the
“manner of bearing arms” but not limits on carrying so severe
“as to render [arms] wholly useless for the purpose of
defence”); Nunn v. State, 1 Ga. 243, 251 (1846) (invalidating a
ban on carrying insofar as it prohibited “bearing arms openly”);
State v. Chandler, 5 La.Ann. 489 (1850) (observing that the
Amendment shields a right to open carry); Johnson v.
Tompkins, 13 F. Cas. 840, 852 (C.C. Pa. 1833) (finding in the
Second Amendment and a state analogue “a right to carry arms
in defence of [one’s] property or person, and to use them, if . . .
assailed with such force, numbers, or violence as made it
necessary for [one’s] protection or safety”); Andrews v. State,
50 Tenn. 165, 187 (1871) (invalidating a ban on carrying
pistols “publicly or privately, without regard to time or place,
or circumstances”)); see also Peruta v. Cty. of San Diego, 742
F.3d 1144, 1174 (9th Cir. 2014), vacated, 781 F.3d 1155, 1156-
63 (9th Cir. 2015) (citing Bliss v. Commonwealth, 12 Ky. (2
Litt.) 90, 93 (1822) (striking down a prohibition on “wearing
concealed arms”); Cockrum v. State, 24 Tex. 394, 403 (1859)
(allowing bans on the carrying of “exceeding[ly] destructive
weapon[s],” but not total bans)). Indeed, the few nineteenth-
century cases that upheld onerous limits on carrying against
13
challenges under the Second Amendment or close analogues
are sapped of authority by Heller I because each of them
assumed that the Amendment was only about militias and not
personal self-defense. So Heller I rejects their crucial premise.
“And with these cases off the table, the remaining cases speak
with one voice” on the Amendment’s coverage of carrying as
well as keeping arms. Peruta, 742 F.3d at 1174. Under Heller
I’s treatment of these and earlier cases and commentaries,
history matters, and here it favors the plaintiffs.
The District retorts that self-defense in public must fall
outside the Amendment’s core protections because the
Amendment was codified in order to keep Congress from
eliminating state militias, a purpose that doesn’t require
allowing people to carry guns in times of peace. But again, it
was Heller I’s central holding that the reason for the
Amendment’s passage did not narrow the sweep of its
protections. See 554 U.S. at 598-600. Whatever motivated the
Amendment, at its core was the right to self-defense. Id. at 630.
Thus, the Amendment’s core generally covers carrying in
public for self-defense.
We say “generally” because, as noted, the Supreme Court
has taught in Heller I that legal regulations of possession or
carrying that are “longstanding”—including bans on
possession by felons or bans on carrying near sensitive sites—
reflect limits to the preexisting right protected by the
Amendment. Id. at 626, 635. The District contends that this
doctrine rescues the good-reason law. In the District’s telling,
Anglo-American history reveals two “longstanding” practices
that so shrank the right later enshrined by the Amendment as to
leave good-reason laws beyond its reach: so-called
Northampton laws and surety laws.
14
B
Whatever the right to carry might cover, the District
contends, it does not protect carrying in densely populated or
urban areas like Washington, D.C. That is because the English
right to bear arms had for centuries been fenced in by the
Statute of Northampton, a law that banned carrying firearms in
crowded areas. Indeed, Northampton-like laws had migrated to
some colonies by the late 1700s, and then to several states in
the mid-to-late 1800s. Thus, the District argues, the preexisting
right codified by the Second Amendment did not (or did not at
its core2) cover carrying in densely populated areas like D.C.
That argument pulls us—and both parties and several
scholars—into dense historical weeds. The original
Northampton statute took effect in 1328. Its language will
faintly remind Anglophiles of studying Canterbury Tales—in
the original. The rest of us may rest assured that the details of
the text will matter less here than they did in English Lit:
[I]t is enacted, that no man . . . of what condition
soever he be, except the king’s servants in his
presence, and his ministers . . . and such as be in
their company assisting them, and also [upon a
cry made for arms to keep the peace, and the
same in such places where such acts happen,] be
so hardy to come before the King’s justices, or
other of the King’s ministers doing their office,
with force and arms, nor bring no force in affray
of the peace, nor to go nor ride armed by night
nor by day, in fairs, markets, nor in the presence
2
It is not clear whether the District believes Northampton laws
show that carrying in densely populated areas falls outside the
Amendment’s protection altogether, or merely outside its core.
15
of the justices or other ministers, nor in no part
elsewhere, upon pain to forfeit their armour to
the King, and their bodies to prison at the King’s
pleasure.
S.A. 36. The District argues that by forbidding all but the king’s
servants and ministers to bring “force in affray of the peace” or
to “go [or] ride armed by night or by day” in “fairs” or
“markets,” this statute banned carrying in densely populated
areas. So carrying in urban areas like D.C., the argument goes,
falls beyond the Amendment’s perimeter or at least its core.
The plaintiffs answer that the Supreme Court neutralized
this argument in Heller I by citing Blackstone’s understanding
that Northampton banned only the carrying of “dangerous and
unusual weapons.” 554 U.S. at 627 (internal quotation marks
omitted); see also 4 William Blackstone, Commentaries on the
Laws of England *149. Plaintiffs and amici also point to an
English case suggesting that by the 1600s, Northampton was
understood to ban only the wielding of arms with evil intent or
in such a way as “to terrify the King’s subjects.” Sir John
Knight’s Case, 87 Eng. Rep. 75, 76 (K.B. 1686). The District
offers its replies, to which the plaintiffs issue sur-replies, and
on and on, until for every point there is an equal and opposite
counterpoint.
Happily, though, the state of the law in Chaucer’s
England—or for that matter Shakespeare’s or Cromwell’s—is
not decisive here. Heller I holds that by the time of the
Founding, the “preexisting right” enshrined by the Amendment
had ripened to include carrying more broadly than the District
contends based on its reading of the 14th-century statute.
For one thing, the history showcased in Heller I
contradicts the main scholar whose work the District cites for
16
the idea that Northampton banned all carrying in crowded areas
(as opposed to carrying dangerous arms or carrying so as to
terrify). On that scholar’s view, Northampton so narrowed the
English right embodied by the Amendment that “individual
self-defense beyond the home deserves only minimalist
protection or categorical exclusion.” Patrick J. Charles, The
Faces of the Second Amendment Outside the Home: History
Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1,
43 (2012). This view runs headlong into the history cited by the
Supreme Court to show that the English “right secured in 1689
. . . was by the time of the founding understood to be an
individual right protecting against both public and private
violence,” Heller I, 554 U.S. at 594, so that the resulting
Amendment guarantees the right to “possess and carry
weapons in case of confrontation,” id. at 592 (emphasis added).
Early commentators seem to confirm that whatever
Northampton banned on the shores of England or colonial
America, the right to bear arms by the time of the Founding
was thought to protect carrying for self-defense generally.
Thus, Heller I cites the view of James Wilson—early
commentator, virtual coauthor of the Constitution, and member
of the Supreme Court’s first cohort—that Founding-era
Northampton laws banned only the carrying of “dangerous and
unusual weapons, in such a manner, as will naturally diffuse a
terrour among the people.” James Wilson, The Works of the
Honourable James Wilson 79 (1804); see also Heller I, 554
U.S. at 627. Even more explicit (if less prominent) is one early
commentary’s observation that while
[r]iding or going armed with dangerous or
unusual weapons, is a crime against the public
peace, by terrifying the people of the land . . . it
should be remembered, that in this country the
constitution guaranties to all persons the right to
17
bear arms; then it can only be a crime to exercise
this right in such a manner, as to terrify the
people unnecessarily.
Charles Humphreys, A Compendium of the Common Law in
Force in Kentucky 482 (Lexington, Ky., William Gibbes Hunt
1822); see also 1 William Hawkins, A Treatise of the Pleas of
the Crown 135, ch. 63, § 4, at 135 (1716) (“[N]o wearing of
arms is within the meaning of this statute, unless it be
accompanied with such circumstances as are apt to terrify the
people.”).
So in light of Heller I, we can sidestep the historical debate
on how the first Northampton law might have hindered
Londoners in the Middle Ages. Common-law rights developed
over time, and American commentaries spell out what early
cases imply: the mature right captured by the Amendment was
not hemmed in by longstanding bans on carrying in densely
populated areas. Its protections today don’t give out inside the
Beltway.
C
The District argues for one other limit to the Amendment:
that its core excludes carrying absent special self-defense needs
because carrying was always cabined by English “surety laws.”
These laws provided that if Oliver carried a pistol and Thomas
said he reasonably feared that Oliver would injure him or
breach the peace, Oliver had to post a bond to be used to cover
any damage he might do, unless he proved he had reason to fear
injury to his person or family or property. Grace S.A. 21-22.
The District cites these laws as early precursors of its good-
reason law to show that the conduct it blocks lies outside the
Amendment’s core.
18
But surety laws did not deny a responsible person carrying
rights unless he showed a special need for self-defense. They
only burdened someone reasonably accused of posing a threat.
And even he could go on carrying without criminal penalty. He
simply had to post money that would be forfeited if he breached
the peace or injured others—a requirement from which he was
exempt if he needed self-defense. Under surety laws, put
simply, everyone started out with robust carrying rights. Those
reasonably accused were then burdened. And only then did
self-defense needs make a difference, by exempting even the
accused from that burden. A showing of special need did not
expand carrying for the responsible; it shrank burdens on
carrying by the (allegedly) reckless.
More importantly, even if surety laws had made
responsible citizens’ freedom to carry turn on their need for
self-defense, these laws would do little for the District’s case.
The Supreme Court has denied that indirect or purely civil
burdens shed much light on the historical right embedded by
the Amendment. In his Heller I dissent, Justice Breyer cited
several laws to contradict the majority’s reading of the
Amendment, but the Court set them aside on the ground that
“[a]ll of them” involved only “a small fine and forfeiture of the
weapon (or in a few cases a very brief stay in the local jail)”
rather than “significant criminal penalties.” Such regulations,
the Court reasoned, are “akin to modern penalties for minor
public-safety infractions like speeding or jaywalking,” which
makes them (in the Court’s view) poor evidence of limits on
the Amendment’s scope. 554 U.S. at 633-34.
Reading the Amendment, applying Heller I’s reasoning,
and crediting key early sources, we conclude: the individual
right to carry common firearms beyond the home for self-
defense—even in densely populated areas, even for those
19
lacking special self-defense needs—falls within the core of the
Second Amendment’s protections.
D
Other circuits reviewing good-reason regulations have
disagreed, holding that burdens on carrying trigger only
intermediate scrutiny because the right to carry merits less
protection than the right to possess in Heller I. Each circuit
court justifying this modest review of good-reason laws has
relied on an inference from the tolerance in American law for
certain other carrying regulations. But each of these courts has
also dispensed with the historical digging that would have
exposed that inference as faulty—digging that Heller I makes
essential to locating the Amendment’s edge, or at least its core.
The hasty inference appears in a Second Circuit opinion
on New York’s good-reason law, where the court reasons that
the right to bear must count for less than the right to keep arms
since the former has been regulated more rigorously.
Kachalsky v. Cty. of Westchester, 701 F.3d 81, 94-97 (2d Cir.
2012). 3 The court cites, for example, Heller I’s approval of
longstanding bans on carrying near sensitive sites. 701 F.3d at
94. But such traditional limits don’t prove that the right to bear
arms is weaker in our tradition since the right to keep arms has
3
The Second Circuit also finds that carrying outside the home
matters less based on analogies to other individual rights. Thus, it
asks: if our law “[t]reat[s] the home as special” when it comes to
sexual privacy rights, why not when enforcing the right to use a gun?
Kachalsky, 701 F.3d at 94. But of course, sex is different. In Judge
Posner’s wry understatement, “the interest in having sex inside one’s
home is much greater than the interest in having sex on the sidewalk
in front of one’s home,” while the need to fend off violence might
arise on sidewalks and in bedrooms alike. Moore v. Madigan, 702
F.3d 933, 941 (7th Cir. 2012).
20
also been subject to longstanding regulations: Heller I itself
cites bans on possession by felons. 554 U.S. at 626.
Kachalsky also notes that while several nineteenth-century
courts may have struck down total bans on carrying, three
upheld bans on bearing concealed or concealable weapons. 701
F.3d at 90, 94. The Fourth Circuit makes a similar point in
applying intermediate scrutiny to another good-reason law. See
Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013)
(quoting United States v. Masciandaro, 638 F.3d 458, 470-71
(4th Cir. 2011) for the proposition that “as we move outside the
home, firearm rights have always been more limited,” as shown
by court decisions upholding bans on concealed carry).
There is, however, an easy way to explain the many cases
tolerating limits on bearing, despite the parity of keeping and
bearing in the Amendment’s text, in Heller I’s textual analysis,
in early commentaries, and in most early cases. The rights to
keep and to bear, to possess and to carry, are equally important
inasmuch as regulations on each must leave alternative
channels for both. See Heller II, 670 F.3d at 1262 (analogizing
certain gun laws deserving modest review to regulations that
leave “ample alternative channels” for speech). It’s simply that
traditional carrying restrictions have generally left ample
opportunities for bearing arms. To address an example cited by
the Second Circuit, bans on carrying only in small pockets of
the outside world (e.g., near “sensitive” sites, Heller I, 554 U.S.
at 626-27) impose only lightly on most people’s right to “bear
arms” in public. As Judge Posner writes: “[W]hen a state bans
guns merely in particular places, such as public schools, a
person can preserve an undiminished right of self-defense by
not entering those places . . . .” Moore, 702 F.3d at 940. By
contrast, a ban on owning or storing guns at home leaves no
alternative channels for keeping arms.
21
The idea that the government must leave ample channels
for keeping and for carrying arms explains much of the analysis
in Heller I. It explains why Heller I saw no need to bother with
“any of the [familiar] standards of scrutiny” in reviewing a ban
on ownership that left no means of defense by handguns at
home. 554 U.S. at 628. It explains why the Court favorably
treated cases allowing bans on concealed carry only so long as
open carry was allowed. 4 The Court itself highlighted this
feature of those cases, see id. at 612-13, 629, explicitly
describing one of them as limiting only the “manner” of
exercising gun rights, id. at 626. The “ample alternative
channels” principle also explains the Court’s approval of bans
on some types of guns so long as those most useful for self-
defense remained accessible. Id. at 627. Indeed, this same
principle makes an appearance in Heller II where we cite
Professor Eugene Volokh’s suggestion that courts applying the
Second Amendment borrow from the law of “content neutral
speech,” which looks askance at “restrictions that impose
severe burdens (because they don’t leave open ample
alternative channels)” for speech. 670 F.3d at 1262 (quoting
Eugene Volokh, Implementing the Right to Keep and Bear
Arms for Self-Defense: An Analytical Framework and a
Research Agenda, 56 U.C.L.A. L. Rev. 1443, 1471 (2009)).
4
See State v. Chandler, 5 La.Ann. 489, 489-90 (1850)
(describing a law against the carrying of concealed weapons as one
that “interfered with no man’s right to carry arms . . . ‘in full view,’
which places men upon an equality”); Nunn v. State, 1 Ga. 243, 251
(1846) (“[S]o far as the act of 1837 seeks to suppress the practice of
carrying certain weapons secretly, . . . it is valid, inasmuch as it does
not deprive the citizen of his natural right of self-defence, or of his
constitutional right to keep and bear arms. But that so much of it, as
contains a prohibition against bearing arms openly, is in conflict with
the Constitution, and void . . . .”).
22
These points confirm that the rights to keep and bear arms
are on equal footing—that the law must leave responsible, law-
abiding citizens some reasonable means of exercising each.
The prevalence of, say, bans on carrying near sensitive sites
would prove that the right to bear arms mattered less only if our
law would reject equally modest burdens on keeping arms (e.g.,
bans on storing them on open surfaces at home). Neither the
Second nor the Fourth Circuit has suggested that it would. So
each was too quick to infer that our legal tradition demotes the
right to bear arms relative to its Constitutional twin.
Finally, the Third Circuit relied on the reasoning of the
Second and Fourth Circuits for its decision to submit good-
reason laws to intermediate scrutiny. See Drake v. Filko, 724
F.3d 426, 430 (3d Cir. 2013). The only other circuit to address
the issue, the Ninth, reasoned that a good-reason limit on
concealed carry must be lawful since outright bans on
concealed carry have been upheld. 5 Relying on this whole-
includes-its-parts reasoning, the Ninth Circuit expressly
sidestepped our question of “whether the [Amendment]
protects some ability to carry firearms in public, such as open
carry.” Peruta v. Cty. of San Diego, 824 F.3d 919, 927 (9th Cir.
2016) (en banc).
Indeed, all of the circuits settling on a level of scrutiny to
apply to good-reason laws explicitly declined to use Heller I’s
historical method to determine how rigorously the Amendment
5
We do not agree with the Ninth Circuit that a ban on concealed
carry can be assessed in isolation from the rest of a jurisdiction’s gun
regulations. As we’ve noted, text and history and precedent urge that
the Second Amendment requires governments to leave responsible
citizens ample means for self-defense at home and outside. So a
regulation’s validity may turn partly on whether surrounding laws
leave ample options for keeping and carrying.
23
applies beyond the home. 6 Each simply assumed for
argument’s sake that the Amendment covers some carrying.
Though meant to be generous to the plaintiffs, by granting a
premise in their favor, this move ultimately weakened the
plaintiffs’ case. It excused courts from sifting through sources
pointing to the equal importance of the right to bear:
[T]he Second, Third, and Fourth Circuits . . .
declined to undertake a complete historical
analysis of the scope and nature of the Second
Amendment right outside the home. . . . As a
result, they misapprehend both the nature of the
Second Amendment right and the implications
of state laws that prevent the vast majority of
responsible, law-abiding citizens from carrying
in public for lawful self-defense purposes. . . .
[They] failed to comprehend that carrying
weapons in public for the lawful purpose of self
defense is a central component of the right to
bear arms.
Peruta, 742 F.3d at 1173-75. Indeed, that conclusion is shared
by the only other circuit that has surveyed the relevant history
through the lens of Heller I: the Seventh. See Moore, 702 F.3d
at 935-37 (striking down a more widely applicable carrying
ban).
So we do not gainsay our sister circuits’ considered
judgments—only the assumptions that some of them made for
6
Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (declining to
“engag[e] in a round of full-blown historical analysis”); Woollard,
712 F.3d at 874-76 (eschewing “a definitive ruling” on the
Amendment’s scope); Kachalsky, 701 F.3d at 91 (deciding not to
plumb “highly ambiguous history and tradition to determine the
meaning of the Amendment”).
24
argument’s sake—when we conclude that (longstanding
exceptions aside) carrying beyond the home, even in populated
areas, even without special need, falls within the Amendment’s
coverage, indeed within its core.
III
Having determined that the good-reason law impinges on
core Second Amendment conduct, we now consider whether
we should subject it to the tiers of scrutiny familiar from other
realms of constitutional law. Grace and Wrenn argue that we
should strike down the good-reason law without applying any
such analysis, following the Supreme Court’s approach to a
“total ban” on gun ownership in Heller I. The District thinks
the good-reason law is rather more mundane—not a total ban
on carrying but a mere hurdle for individuals to clear before
getting to carry. Thus, the District argues, we should apply
intermediate scrutiny under Heller II.
We begin by revisiting Heller I to see why total bans are
always invalid and what makes for a total ban in the first place.
Doing so will make it hard to believe that the Heller I Court—
which dispensed with tiers of scrutiny in striking down a ban
on possession by almost everyone—would have gone easier on
a law banning possession by everyone but that small minority
with a special need to possess. Since possession and carrying
are on par with each other, it will follow that the same
categorical treatment should apply to the District’s ban on
carrying by all but the few who prove a special reason to carry.
Recall that under Heller I, the Second Amendment
protects an individual right of responsible, law-abiding citizens
to defend themselves. In particular, then, the right to carry is a
right held by responsible, law-abiding citizens for self-defense.
But self-defense against what? The most natural answer is that
25
the Amendment enables self-defense at least against the level
of threat generally faced by those covered by the Amendment:
responsible and law-abiding citizens. Likewise, “responsible”
must include those who are no more dangerous with a gun than
law-abiding citizens generally are. Cf. Heller v. District of
Columbia (Heller III), 801 F.3d 264, 280 (D.C. Cir. 2015)
(faulting a cap on gun registrations for trying to reduce gun
ownership indiscriminately rather than zero in on likely
abuses). At a minimum, then, the Second Amendment must
enable armed self-defense by commonly situated citizens:
those who possess common levels of need and pose only
common levels of risk.
This analysis reflects the most sensible way of spelling out
Second Amendment rights absent contrary clues in the
Amendment’s history as understood by Heller I: if the
Amendment is for law-abiding citizens as a rule, then it must
secure gun access at least for each typical member of that class.
Indeed, this reading fits naturally with Heller I’s holding about
the meaning of “arms”: just as the Amendment requires access
to weapons “in common use,” id. at 627 (quoting United States
v. Miller, 307 U.S. 174, 179 (1939)), including the “most
popular” self-defense weapon among citizens today, id. at 629,
so must the Amendment enable defense under the
circumstances common among citizens today. The reason for
both points is the same: the early cases cited in Heller I
envisioned that law-abiding citizens as a general rule would be
entitled to have and carry arms for self-defense. So the class of
arms protected must include guns in common use; and the class
of citizens who can wield them must include those with
common levels of competence and responsibility—and need.
Longstanding regulations aside, then, the Amendment
shields at least the ability to carry common arms in self-defense
for citizens who are commonly situated in the ways just
26
mentioned. Yet the District’s good-reason law bars most
people from exercising this right at all. To be sure, the good-
reason law leaves each D.C. resident some remote chance of
one day carrying in self-defense, but that isn’t the question. The
Second Amendment doesn’t secure a right to have some chance
at self-defense. Again, at a minimum the Amendment’s core
must protect carrying given the risks and needs typical of law-
abiding citizens. That is a right that most D.C. residents can
never exercise, by the law’s very design. In this way, the
District’s regulation completely prohibits most residents from
exercising the constitutional right to bear arms as viewed in the
light cast by history and Heller I.
And under Heller I, “complete prohibition[s]” of Second
Amendment rights are always invalid. Id. at 629. It’s
appropriate to strike down such “total ban[s]” without
bothering to apply tiers of scrutiny because no such analysis
could ever sanction obliterations of an enumerated
constitutional right. Id. With this categorical approach to such
bans, Heller I ensured that judicial tests for implementing gun
rights would not be misused to swallow those rights whole.
Heller I essentially held that the right to keep and bear arms
must mean at an absolute minimum the right to own a gun, so
any acceptable standard of review would have to accommodate
that fact. By declining to apply tiers of scrutiny to a total ban
on ownership, Heller I closed off the possibility that courts
would erroneously find some benefits weighty enough to
justify other effective bans on the right to keep common arms.
We would flout this lesson of Heller I if we proceeded as if
some benefits could justify laws that necessarily destroy the
ordinarily situated citizen’s right to bear common arms—a
right also guaranteed by the Amendment, on the most natural
reading of Heller I.
27
Of course, the good-reason law isn’t a “total ban” for the
D.C. population as a whole of the right to bear common arms
under common circumstances. After all, it allows some D.C.
residents—those with a special need—to defend against threats
both common to everyone and specific to themselves. But the
ban on ownership struck down in Heller I also made “minor
exceptions” for certain sorts of owners, who could then defend
their homes to the hilt. 554 U.S. at 570 n.1. That made no
difference to constitutional review of the ban, see id., for a
simple reason: the point of the Amendment isn’t to ensure that
some guns would find their way into D.C., but that guns would
be available to each responsible citizen as a rule (i.e., at least to
those no more prone to misuse that access than anyone else).
So if Heller I dictates a certain treatment of “total bans” on
Second Amendment rights, that treatment must apply to total
bans on carrying (or possession) by ordinarily situated
individuals covered by the Amendment.
This point brings into focus the legally decisive fact: the
good-reason law is necessarily a total ban on most D.C.
residents’ right to carry a gun in the face of ordinary self-
defense needs, where these residents are no more dangerous
with a gun than the next law-abiding citizen. We say
“necessarily” because the law destroys the ordinarily situated
citizen’s right to bear arms not as a side effect of applying
other, reasonable regulations (like those upheld in Heller II and
Heller III), but by design: it looks precisely for needs
“distinguishable” from those of the community. So we needn’t
pause to apply tiers of scrutiny, as if strong enough showings
of public benefits could save this destruction of so many
commonly situated D.C. residents’ constitutional right to bear
common arms for self-defense in any fashion at all. Bans on
the ability of most citizens to exercise an enumerated right
would have to flunk any judicial test that was appropriately
28
written and applied, so we strike down the District’s law here
apart from any particular balancing test.
Indeed, as noted, it seems highly doubtful that the Heller I
Court would have acted any differently in reviewing a good-
reason regulation on possession—one limiting gun ownership
to that minority of residents with more-than-common needs for
self-defense at home. Yet possession and carrying—keeping
and bearing—are on equal footing. So Heller I’s language and
logic all but dictate that no tiers-of-scrutiny analysis could
deliver the good-reason law a clean bill of constitutional health.
Heller I’s categorical approach is appropriate here even
though our previous cases have always applied tiers of scrutiny
to gun laws. To be sure, Heller II spoke generally of
“adopt[ing] . . . a two-step approach” for reviewing “the
District’s gun laws,” which would “ask first whether a
particular provision” burdens a Second Amendment right and
then, “if it does, go on to determine whether the provision
passes muster under the appropriate level of constitutional
scrutiny.” 670 F.3d at 1252 (emphasis added). Though
somewhat open-ended, this language standing alone would
suggest that we apply only intermediate or strict scrutiny to
every burdensome gun law we ever review. But another
passage in Heller II expressly limited the opinion’s framework
to laws “significantly less severe” than a “total prohibition.” Id.
at 1266. We believe this caveat—which Heller II offered to
distinguish Heller I—was in fact required by Heller I’s
example. So we read this explicit limit in Heller II as
controlling that decision’s more generic embrace of “level[s]
of constitutional scrutiny.” 670 F.3d at 1252; cf. Gerhardson v.
Gopher News Co., 698 F.2d 1052, 1059 (8th Cir. 2012) (“We
will not interpret our precedent in a way that is inconsistent
with binding Supreme Court authority.”). True, our gun cases
have never applied a more categorical approach, but then
29
we’ve never been asked to review so much as a “substantial”
burden on a “core” protected right, to say nothing of a ban. That
is why we have always relied on the familiar tiers of scrutiny;
in fact, we’ve never applied more than intermediate scrutiny.
This is different. Here Heller I’s approach is more fitting.
Indeed, it fits so tightly that this approach would rarely (if ever)
apply in cases we can imagine arising in the future. Most other
regulations won’t deprive even ordinarily situated citizens of
all means of carrying (or possessing) handguns in self-defense,
as the good-reason law seems almost engineered to do.
So our approach, briefed by all the parties, is also urged by
Heller I and coheres with Heller II. It’s narrower than any other
basis for decision but not ad hoc. And it would avoid
suggesting what Heller I implicitly denies: that some public
benefits could justify preventing people from exercising the
law-abiding citizen’s right to bear arms for self-defense given
the risk and needs typical of, well, law-abiding citizens.
We pause to draw together all the pieces of our analysis:
At the Second Amendment’s core lies the right of responsible
citizens to carry firearms for personal self-defense beyond the
home, subject to longstanding restrictions. These traditional
limits include, for instance, licensing requirements, but not
bans on carrying in urban areas like D.C. or bans on carrying
absent a special need for self-defense. In fact, the
Amendment’s core at a minimum shields the typically situated
citizen’s ability to carry common arms generally. The District’s
good-reason law is necessarily a total ban on exercises of that
constitutional right for most D.C. residents. That’s enough to
sink this law under Heller I.
30
IV
Because they sought a preliminary injunction, plaintiffs
below had the burden to show “that [they are] likely to succeed
on the merits, that [they are] likely to suffer irreparable harm
in the absence of preliminary relief, [and] that the balance of
equities,” including the public interest, “tips in [their] favor.”
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). But
here the merits of the plaintiffs’ challenge are certain and don’t
turn on disputed facts, so our analysis can stop at the first,
merits prong of this inquiry. See, e.g., Agency for Int’l Dev. v.
Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2332
(2013) (affirming circuit court’s affirmance of a grant of a
preliminary injunction based only on the merits of petitioners’
constitutional challenge).
Indeed, since our holding at this stage makes a certain
outcome “inevitable” in these cases, “we have power to dispose
[of it] ‘as may be just under the circumstances,’” Gross v.
United States, 390 U.S. 62, 71 (1968) (quoting 28 U.S.C.
§ 2106), and should do so “to obviate further and entirely
unnecessary proceedings below,” id. at 72; see also Indep.
Bankers Ass’n of Am. v. Heimann, 613 F.2d 1164, 1167 (D.C.
Cir. 1979) (“Although the case could now be remanded to the
District Court for a decision on the merits, we have concluded
that such a course is unnecessary and indeed would be unduly
wasteful of judicial resources.”) (citing 28 U.S.C. § 2106).
Because the District’s good-reason law merits invalidation
under Heller I regardless of its precise benefits, we would be
wasting judicial resources if we remanded for the court to
develop the records in these cases. Cf. Moore, 702 F.3d at 942
(reversing denials of preliminary injunctions and remanding
with instructions to enter declarations of unconstitutionality
and permanent injunctions).
31
***
To watch the news for even a week in any major city is to
give up any illusions about “the problem of handgun violence
in this country.” Heller I, 554 U.S. at 570. The District has
understandably sought to fight this scourge with every legal
tool at its disposal. For that long struggle against gun violence,
you might see in today’s decision a defeat; you might see the
opposite. To say whether it is one or the other is beyond our
ken here. We are bound to leave the District as much space to
regulate as the Constitution allows—but no more. Just so, our
opinion does little more than trace the boundaries laid in 1791
and flagged in Heller I. And the resulting decision rests on a
rule so narrow that good-reason laws seem almost uniquely
designed to defy it: that the law-abiding citizen’s right to bear
common arms must enable the typical citizen to carry a gun.
We vacate both orders below and remand with instructions
to enter permanent injunctions against enforcement of the
District’s good-reason law.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
My colleagues conclude that the District’s “good reason”
regulation is categorically barred by the Second Amendment. I
disagree.1
Assuming arguendo that the Second Amendment’s
individual right to keep and bear arms extends beyond the
home,2 see Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013)
(declining “to definitively declare that the individual right to
bear arms for the purpose of self-defense extends beyond the
home”); Peruta v. Cty. of San Diego, 824 F.3d 919, 927 (9th
Cir. 2016) (en banc) (same); Woollard v. Gallagher, 712 F.3d
865, 876 (4th Cir. 2013) (same); Kachalsky v. Cty. of
Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (same), the proper
standard of review “depends on the nature of the conduct being
regulated and the degree to which the challenged law burdens
the right.” Heller v. D.C. (Heller II), 670 F.3d 1244, 1257
(D.C. Cir. 2011) (quoting United States v. Chester, 628 F.3d
673, 682 (4th Cir. 2010)). “Nothing in Heller [I] 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.” Id. at 1266 (internal
quotation marks omitted). Although “a regulation that imposes
a substantial burden upon the core right of self-defense
protected by the Second Amendment must have a strong
1
I would affirm the denial of preliminary injunctive relief in
Wrenn v. District of Columbia, 167 F. Supp. 3d 86 (D.D.C. 2016),
and reverse the grant of preliminary injunctive relief in Grace v.
District of Columbia, 187 F. Supp. 3d 124 (D.D.C. 2016).
2
Although I assume that the Second Amendment extends to
some extent beyond the home, I am certain the core Second
Amendment right does not. The application of strict scrutiny—let
alone my colleagues’ application of a categorical ban—is, in my
view, patently off-base.
2
justification, . . . a regulation that imposes a less substantial
burden should be proportionately easier to justify.” Id. at 1257.
The sole Second Amendment “core” right is the right to
possess arms for self-defense in the home. Drake, 724 F.3d at
431 (“[T]he individual right to bear arms for the purpose of
self-defense [in] the home [is] the ‘core’ of the right as
identified by Heller.”); Kachalsky, 701 F.3d at 89 (“Second
Amendment guarantees are at their zenith within the home.”);
United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir.
2011) (“[A] lesser showing is necessary with respect to laws
that burden the right to keep and bear arms outside of the
home.”). This conclusion is evidenced, first and foremost, by
the United States Supreme Court’s declarations in District of
Columbia v. Heller (Heller I) that the “the need for defense of
self, family, and property is most acute” in the home, 554 U.S.
570, 628 (2008) (emphasis added), and in McDonald v. City of
Chicago that “the Second Amendment protects a personal
right to keep and bear arms for lawful purposes, most notably
for self-defense within the home,” 561 U.S. 742, 780 (2010)
(emphasis added). By characterizing the Second Amendment
right as most notable and most acute in the home, the Supreme
Court necessarily implied that that right is less notable and less
acute outside the home. See Drake, 724 F.3d at 431; Woollard,
712 F.3d at 876; Kachalsky, 701 F.3d at 89; Masciandaro, 638
F.3d at 471. A right that is less notable and less acute cannot
reside at the Second Amendment’s core. My colleagues
attempt to minimize the Supreme Court’s declarations by
insisting that the relevant history speaks with “one voice on
the Amendment’s coverage of carrying as well as keeping
arms.” Maj. Op. 12-13 (internal quotation marks omitted). But
their view of history is with blinders on as it is contradicted by
our sister circuits’ extensive review of the same historical
3
record.3 Kachalsky, 701 F.3d at 91 (“History and tradition do
not speak with one voice here. What history demonstrates is
that states often disagreed as to the scope of the right to bear
arms, whether the right was embodied in a state constitution or
the Second Amendment.”); Drake, 724 F.3d at 431 (same);
Masciandaro, 638 F.3d at 470-71 (“[A]s we move outside the
home, firearm rights have always been more limited, because
public safety interests often outweigh individual interests in
self-defense.”); cf. Peruta, 824 F.3d at 939 (in U.S. history,
“the Second Amendment right to keep and bear arms does not
include, in any degree, the right of a member of the general
public to carry concealed firearms in public”). I would join
these circuits and find that the “core” Second Amendment
right does not extend beyond the home given the history
upholding “public carry” regulations, a history “enshrined
with[in] the scope of the Second Amendment when it was
adopted.” Kachalsky, 701 F.3d at 96 (alteration in original)
(“The historical prevalence of the regulation of firearms in
public demonstrates that while the Second Amendment’s core
concerns are strongest inside hearth and home, states have
long recognized a countervailing and competing set of
3
The majority acknowledges that other circuits have identified
regulations, including bans, regarding the public bearing of arms
that were upheld by nineteenth-century courts. See Kachalsky, 701
F.3d at 94-96; accord Woollard, 712 F.3d at 876 (quoting
Masciandaro, 638 F.3d at 470-71). They then discount those
decisions as having applied a Second Amendment corollary to the
First Amendment’s “ample alternative channels” doctrine. Maj. Op.
20-22. I am not ready to revise history by asserting that nineteenth-
century courts used reasoning first articulated a century later. See
Peruta, 824 F.3d at 942.
4
concerns with regard to handgun ownership and use in
public.”). Regulations restricting public carrying are all the
more compelling in a geographically small but heavily
populated urban area like the District. See Joseph Blocher,
Firearm Localism, 123 YALE L.J. 82, 108 (2013) (“American
cities have traditionally had much more stringent gun control
than rural areas.”).
Because the District’s good reason regulation does not
affect firearm possession within the home and therefore does
not “impose[] a substantial burden upon the core right of self-
defense protected by the Second Amendment,” I believe the
correct standard of review is, at most, intermediate scrutiny.
Heller II, 670 F.3d at 1257; accord Woollard, 712 F.3d at 878
(recognizing “longstanding out-of-the-home/in-the-home
distinction bear[ing] directly on the level of scrutiny
applicable”); Kachalsky, 701 F.3d at 96 (“Because our
tradition so clearly indicates a substantial role for state
regulation of the carrying of firearms in public, we conclude
that intermediate scrutiny is appropriate in this case.”). For the
District’s challenged licensing regime to pass muster under
intermediate scrutiny, it must show that the regime is
“substantially related to an important governmental
objective.” Heller II, 670 F.3d at 1258 (quoting Clark v. Jeter,
486 U.S. 456, 461 (1988)). “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.’” Id.(quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,
480 (1989)). “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.’” Heller
v. D.C. (Heller III), 801 F.3d 264, 282 (D.C. Cir. 2015)
5
(Henderson, J., concurring in part and dissenting in part)
(quoting Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Revenue, 460 U.S. 575, 585 n. 7 (1983)).
As I have previously written, two additional well-
grounded principles should guide the intermediate scrutiny
analysis of the District’s good reason regulation. Id. at 282-84.
First, “the nature of firearms regulation requires ample
deference to the legislature.” Id. at 282. Ample deference
stems from the recognition that gun laws involve a “‘complex
and dynamic’ issue implicating ‘vast amounts of data’ that the
legislature is far better equipped to gather and analyze.” Id.
(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662-
64 (1994)); cf. Holder v. Humanitarian Law Project, 561 U.S.
1, 34 (2010) (in national security context, “information can be
difficult to obtain and the impact of certain conduct difficult to
assess”).
Second, the District of Columbia is unique. Heller III, 801
F.3d at 283 (Henderson, J., concurring in part and dissenting
in part). It is the seat of our national government, “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.” Id.
Accordingly, our analysis should reflect an appreciation of
“the unique challenges that confront the District as it struggles
to regulate firearms in our Nation’s capital.” Id. (citing City of
L.A. v. Alameda Books, Inc., 535 U.S. 425, 439-40 (2002)).
I believe the District’s good reason regulation passes
muster under intermediate scrutiny. The District identifies two
important government objectives underlying its licensing
regime: the prevention of crime and the promotion of public
safety. Wrenn Appellee Br. 41. In Heller III, we held,
unsurprisingly, that “promoting public safety” is indeed a
6
substantial government interest.4 Heller III, 801 F.3d at 274.
The District has provided evidence that its licensing regime
“promotes [that] substantial governmental interest [in a way]
that would be achieved less effectively absent the regulation,”
and, at the same time, is not “substantially broader than
necessary.” Id. at 272 (quoting Heller II, 670 F.3d at 1258).
Namely, the District highlights the empirical connection
between a profusion of guns and increased violent crime,
relying on, inter alia, the studies of leading researchers,
including the National Research Council, and of the
legislatures of New York, Maryland and New Jersey—all of
which have put in place similar licensing regimes. Wrenn
Appellee Br. 41-45. Moreover, the District points to the expert
testimony of District Police Chief Cathy Lanier as well as
commentary from the United States Secret Service and United
States Capitol Police explaining the District’s special security
concerns that warrant firearms restrictions. Id. at 44. The
District’s good reason regulation constitutes its legislature’s
analysis of a “complex and dynamic” situation, an analysis
that examines “vast amounts of data” and considers the unique
needs of the District. Heller III, 801 F.3d at 283 (Henderson,
J., concurring in part and dissenting in part). The good reason
regulation that emerged deserves “ample deference,” id. at
282, that is, a deference that recognizes
[i]t is the legislature’s job, not ours, to weigh
conflicting evidence and make policy judgments.
Indeed, assessing the risks and benefits of handgun
possession and shaping a licensing scheme to
maximize the competing public-policy objectives, as
[the District] did, is precisely the type of
discretionary judgment that officials in the
4
The Supreme Court has also referred to “the significant
governmental interest in public safety.” Schneck v. Pro-Choice
Network of W.N.Y., 519 U.S. 357, 376 (1997).
7
legislative and executive branches of state
government regularly make.
Kachalsky, 701 F.3d at 99. At bottom, firearms regulation “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.”
Masciandaro, 638 F.3d at 475-76.
Accordingly, I respectfully dissent.