Appeals court upholds DC semi-automatic rifle ban

DICK ANTHONY HELLER, ET AL., APPELLANTS v. DISTRICT OF
COLUMBIA, ET AL., APPELLEES

No. 10-7036

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT

2011 U.S. App. LEXIS 20130

November 15, 2010, Argued
October 4, 2011, Decided

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

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

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

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

Matthew M. Shors was on the brief for amici curiae Professional Historians and
Law Professors, et al. in support of appellees.

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

JUDGES: Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit Judges. Opinion for
the Court filed by Circuit Judge GINSBURG. Dissenting opinion filed by Circuit
Judge KAVANAUGH.

OPINION BY: GINSBURG

OPINION

Opinion for the Court filed by Circuit Judge Ginsburg.
I. Background
II. Analysis
A. Statutory Authority
B. The Second Amendment
1. The Heller Decision
2. The Constitutional Framework
3. Registration Requirements
a. Do the registration requirements impinge upon
the Second Amendment right?
i. Basic registration requirements
ii. Novel registration requirements
b. Intermediate scrutiny is appropriate
c. Intermediate scrutiny requires remand
4. Assault Weapons and Large-Capacity Magazines
a. Do the prohibitions impinge upon the Second
Amendment right?
b. Intermediate scrutiny is appropriate
c. The prohibitions survive intermediate scrutiny
III. Conclusion
Appendix: Regarding the Dissent
A. Interpreting Heller and McDonald
B. Registration Requirements
C. Assault Weapons

Dissenting [*2] opinion filed by Circuit Judge Kavanaugh.

Ginsburg, Circuit Judge: In June 2008 the Supreme Court held the District of
Columbia laws restricting the possession of firearms in one's home violated the
Second Amendment right of individuals to keep and bear arms. See District of
Columbia v. Heller, 554 U.S. 570. In the wake of that decision, the District
adopted the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17-372,
which amended the Firearms Control Regulations Act of 1975, D.C. Law 1-85. The
plaintiffs in the present case challenge, both facially and as applied to them,
the provisions of the District's gun laws, new and old, requiring the
registration of firearms and prohibiting both the registration of "assault
weapons" and the possession of magazines with a capacity of more than ten rounds
of ammunition. The plaintiffs argue those provisions (1) are not within the
District's congressionally delegated legislative authority or, if they are, then
they (2) violate the Second Amendment.

The district court granted summary judgment for the District and the
plaintiffs appealed. We hold the District had the authority under D.C. law to
promulgate the challenged gun laws, and we [*3] uphold as constitutional the
prohibitions of assault weapons and of large-capacity magazines and some of the
registration requirements. We remand the other registration requirements to the
district court for further proceedings because the record is insufficient to
inform our resolution of the important constitutional issues presented.

I. Background

In Heller, the Supreme Court held the Second Amendment protects "an
individual right to keep and bear arms," 554 U.S. at 595, but not a right "to
keep and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose," id. at 626. More specifically, the Court held unconstitutional the
District's "ban on handgun possession in the home" as well as its "prohibition
against rendering any lawful firearm in the home operable for the purpose of
immediate self-defense," id. at 635, noting "the inherent right of self-defense
[is] central to the Second Amendment right," id. at 628. Therefore, unless the
plaintiff was "disqualified from the exercise of Second Amendment rights" for
some reason, such as a felony conviction, the District had to permit him to
register his handgun. Id. at 635.

Shortly after the Supreme Court issued its decision [*4] in Heller, the D.C.
Council passed emergency legislation in an effort to conform the District's laws
to the Supreme Court's holding while it considered permanent legislation. The
Council's Committee on Public Safety and the Judiciary then held three public
hearings on the subject. In December 2008, upon the Committee's recommendation,
the full Council passed the FRA. 56 D.C. Reg. 3438 (May 1, 2009).

The plaintiffs challenge a host of provisions of the new scheme for
regulating firearms.* First they object to the general requirement that owners
register their firearms, D.C. Code § 7-2502.01(a). In particular, the plaintiffs
challenge the following requirements that apply each time a person applies to
the Metropolitan Police Department (MPD) for a registration certificate. Each
applicant must:

o Disclose certain information about himself -- such as his name,
address, and occupation -- and about his firearm. § 7-2502.03(b).

o Submit "for a ballistics identification procedure" each pistol to
be registered. § 7-2502.03(d). Ballistics testing is not required for
long guns. See id.

o Appear in person and, at the MPD's request, bring with him the
firearm to be registered. § 7-2502.04(c).

o Register [*5] no more than one pistol in a 30-day period. §
7-2502.03(e).

o Renew each registration certificate "3 years after the date of
issuance." § 7-2502.07a(a). In order to renew the certificate, the
applicant must "submit a statement ... attesting to" his current
address, possession of the firearm, and compliance with the
registration requirements in § 7-2502.03(a). § 7-2502.07a(c).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* Although
the District revised its regulatory scheme, the ban on semi-automatic rifles and
the registration scheme themselves are not entirely new. The District has banned
all semi-automatic firearms shooting more than twelve shots without reloading
and has required basic registration since 1932. See Act of July 8, 1932, ch.
465, §§ 1, 8, 47 Stat. 650, 650, 652. It enacted most of its comprehensive
registration scheme in 1975. See Firearms Control Regulations Act of 1975, D.C.
Law 1-85.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In addition, the plaintiffs challenge five requirements that are more similar
to licensing the owner of the firearm than to registering the weapon itself.*
Specifically, the applicant must:

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

o Demonstrate knowledge of the District's laws pertaining to
firearms "and, [*6] in particular, the safe and responsible use,
handling, and storage of the same." § 7-2502.03(a)(10).

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

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

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

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* The
plaintiffs also challenge several administrative and enforcement provisions
incidental to the underlying regime. See D.C. Code §§ 7-2502.03(d), 7-2502.05(b)
, D.C. Mun. Regs. tit. 24, § 2320 (fees for registration, ballistics testing,
and fingerprinting); D.C. Code § 7-2507.06 (violation punishable by fine of up
to $1,000, one year in prison, or both); § 7-2502.08 (registrant must notify MPD
if firearm is transferred, lost, stolen, or destroyed, and exhibit registration
certificate upon demand of MPD). These provisions are lawful insofar as the
underlying regime is lawful and hence enforceable.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Second, the plaintiffs challenge the District's [*7] prohibitions of
"assault weapon[s]," D.C. Code § 7-2502.02(a)(6), and of magazines holding more
than ten rounds of ammunition, § 7-2506.01(b). The FRA defines "assault weapon"
to include certain brands and models of semi-automatic rifles, pistols, and
shotguns, such as the Colt AR-15 series of rifles, as well as semi-automatic
firearms with certain features, regardless of make and model, such as a
semi-automatic rifle with a "pistol grip that protrudes conspicuously beneath
the action of the weapon" or a "thumbhole stock." § 7-2501.01(3A)(A). The
District also prohibits possession of "any large capacity ammunition feeding
device," which includes "a magazine ... or similar device that has a capacity of
... more than 10 rounds of ammunition." § 7-2506.01(b) (hereinafter
"large-capacity magazines").

Plaintiffs Mark Snyder and Absalom F. Jordan, Jr. complied with the
registration requirements and successfully registered a rifle and a pistol
respectively. Plaintiff Jordan, however, was unable to register two additional
pistols due to the one-gun-per-30-days limit. Three of the plaintiffs, Dick
Anthony Heller, William Carter, and Jordan applied to register semi-automatic
rifles, but the MPD [*8] denied their applications because it found the
firearms were prohibited "assault weapons." Plaintiff Heller was also denied
registration of a pistol because the magazine had a capacity of 15 rounds.*

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* In their
complaint, the plaintiffs challenge the constitutionality of the FRA insofar as
it bans all "assault weapons," including semi-automatic rifles, pistols, and
shotguns. In their briefs, however, they recount no attempt to register a
semi-automatic pistol or a semi-automatic shotgun of a kind prohibited by the
District's ban on assault weapons, nor do they mention such weapons in arguing
the ban is unconstitutional. Accordingly, we take their challenge to the ban on
assault weapons as referring only to the ban on semi-automatic rifles, as set
out in D.C. Code §§ 7-2501.01(3A)(A)(i)(I) and (IV). See Summers v. Earth Island
Inst., 129 S. Ct. 1142, 1149 (2009) (standing doctrine "requires federal courts
to satisfy themselves that the plaintiff has alleged such a personal stake in
the outcome of the controversy as to warrant his invocation of federal-court
jurisdiction," and the plaintiff "bears the burden of showing that he has
standing for each type of relief sought" (internal quotation [*9] marks
omitted)); Democratic Cent. Comm. v. Wash. Metro. Area Transit Comm'n, 485 F.2d
786, 790 n.16 (D.C. Cir. 1973) (declining to consider claims because "[i]n their
brief ... petitioners offer no argument whatever in support of these points").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Before the district court, the plaintiffs argued all D.C. gun laws are
required by the Act of June 30, 1906, ch. 3932, 34 Stat. 808, to be "usual and
reasonable," but contended the aforementioned provisions meet neither criterion
or, if they do, then they violate the plaintiffs' Second Amendment rights. The
district court held the challenged laws do not exceed the District's authority
under local law because they are usual and reasonable police regulations within
the meaning of the 1906 Act. 698 F. Supp. 2d 179, 196-97 (2010). Then,
addressing the constitutional challenge, the court determined "the registration
requirements plainly implicate the core Second Amendment right" but, applying
intermediate scrutiny, upheld the registration scheme in all respects. Id. at
190-93. The court also upheld the ban on assault weapons and large-capacity
magazines on the ground that the bans "do not implicate the core Second
Amendment right." Id. at 195. Holding, [*10] in the alternative, the bans would
survive intermediate scrutiny, id., the court granted summary judgment for the
District, and the plaintiffs appealed.

II. Analysis

Pursuant to the principle of constitutional avoidance, we "resolve statutory
questions at the outset where to do so might obviate the need to consider a
constitutional issue." United States v. Wells Fargo Bank, 485 U.S. 351, 354
(1988). Accordingly, we consider first whether the D.C. Council had the
statutory authority to enact the challenged gun laws.

A. Statutory Authority

The Congress in 1878 permanently established a Board of Commissioners, to
which it delegated regulatory authority over the District in discrete areas of
policy. Organic Act of June 11, 1878, ch. 180, 20 Stat. 102, 103; see also
District of Columbia v. John R. Thompson Co., 346 U.S. 100, 111 (1953) (under
Organic Act, "municipal government was confined to mere administration"
(internal quotation marks omitted)). The Congress passed the 1906 Act in part to
grant the Board the specific authority to regulate firearms:

the Commissioners of the District of Columbia are hereby authorized
and empowered to make and enforce all such usual and reasonable police
regulations [*11] ... as they may deem necessary for the regulation
of firearms, projectiles, explosives, or weapons of any kind in the
District of Columbia.

Act of June 30, 1906, ch. 3932, § 4, 34 Stat. 808, 809 (emphasis added), amended
and codified at D.C. Code § 1-303.43 (referring to "Council" in lieu of
"Commissioners").

In 1973 the Congress passed the District of Columbia Home Rule Act (HRA), see
District of Columbia Self-Government and Governmental Reorganization Act, Pub.
L. No. 93-198, 87 Stat. 774 (codified as amended at D.C. Code §§ 1-201.01 et seq
.), which remains in effect today. Section 302 of the HRA, D.C. Code § 1-203.02,
"Legislative Power," provides in relevant part:

Except as provided in [certain sections not relevant here], the
legislative power of the District shall extend to all rightful
subjects of legislation within the District consistent with the
Constitution of the United States and the provisions of this [Act]
....

The plaintiffs argue the District's authority to regulate firearms remains
limited by the 1906 Act, and that Act prevents the District from promulgating
the gun laws challenged here. Specifically, the plaintiffs argue the D.C. gun
laws are not "usual" because they [*12] are not commonly found in either state
or federal law and they are also unreasonable. (They maintain the Eighth
Amendment case law concerning what is "unusual" should inform our analysis of
whether these laws are "usual.") The District defends the challenged laws as
both "usual and reasonable." It argues a regulation is "usual" if any other
jurisdiction has or has had a law addressing similar subject matter.

In any event the District argues, and the United States as amicus curiae
agrees, its authority in the HRA over "all rightful subjects of legislation"
affirmatively gives it the power to enact the challenged gun laws. The
plaintiffs respond to that argument with the observation that the 1906 Act
should not be "deemed amended or repealed" because the HRA did not "specifically
provide[]" for repeal and the 1906 Act is not "inconsistent with" the HRA. See
D.C. Code § 1-207.17(b) ("No law or regulation which is in force on January 2,
1975 shall be deemed amended or repealed by [the HRA] except to the extent
specifically provided herein or to the extent that such law or regulation is
inconsistent with this chapter").

We agree with the District that it was authorized to enact the challenged
[*13] gun laws. The HRA granted the District broad legislative power, subject to
a few express exceptions, none of which is relevant here. See D.C. Code §
1-203.02; id. § 1-204.04(a). The plaintiffs do not contend the District's
authority to enact these gun laws is limited by any other provision of the HRA,
see Marijuana Policy Project v. United States, 304 F.3d 82, 83 (D.C. Cir. 2002)
(HRA "lists certain matters that are not rightful subjects" of legislation, such
as "a commuter tax on non-residents' income"), and the District of Columbia
Court of Appeals has authoritatively if more generally said as much, see
Convention Ctr. Referendum Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d
889, 903 (D.C. 1981) (en banc) (Council's legislative power "limited only by
specified exceptions and by the general requirement that legislation be
consistent with the U.S. Constitution and the Home Rule Act"). See also John R.
Thompson Co., 346 U.S. at 104-05, 110 (concluding Organic Act of February 21,
1871, 16 Stat. 419, which gave District power over "all rightful subjects of
legislation," conferred authority "as broad as the police power of a state").
Hence we conclude the grant of authority in the [*14] HRA comprises the subject
of firearms and supersedes the qualified grant to the District in the 1906 Act.

Insofar as the 1906 Act remains effective, it serves only to clarify that the
new D.C. Council is the body responsible for the "function" of regulating
firearms, as stated in D.C. Code § 1-303.43. Specifically, § 404(a) of the HRA
provides

all functions granted to or imposed upon, or vested in or
transferred to the District of Columbia Council, as established by
Reorganization Plan No. 3 of 1967, shall be carried out by the Council
in accordance with the provisions of this chapter.

D.C. Code § 1-204.04(a). Accordingly, we need not decide whether the laws at
issue are "usual and reasonable" because we hold the District has authority
under the HRA to enact laws regulating firearms.

B. The Second Amendment

Having determined the District had the statutory authority to promulgate the
challenged gun laws, we next consider whether those laws are consistent with the
Second Amendment: "A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms, shall not be
infringed." To determine how we are to approach this question, we begin with
[*15] Heller.

1. The Heller Decision

In Heller the Supreme Court explained the Second Amendment "codified a
pre-existing" individual right to keep and bear arms, 554 U.S. at 592, which was
important to Americans not only to maintain the militia, but also for
self-defense and hunting, id. at 599. Although "self-defense had little to do
with the right's codification[,] it was the central component of the right
itself." Id.

Still, the Court made clear "the right secured by the Second Amendment is not
unlimited," id. at 626, and it gave some examples to illustrate the boundaries
of that right. For instance, the Court noted "the Second Amendment does not
protect those weapons not typically possessed by law-abiding citizens for lawful
purposes, such as short-barreled shotguns." Id. at 625 (citing United States v.
Miller, 307 U.S. 174 (1939)). This limitation upon the right to keep and bear
arms was "supported by the historical tradition of prohibiting the carrying of
dangerous and unusual weapons." Id. at 627 (internal quotation marks omitted).

The Court identified other historical limitations upon the scope of the right
protected by the Second Amendment. For example, it noted "the majority of the
[*16] 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state
analogues." Id. at 626. It also provided a list of some "presumptively lawful
regulatory measures":

nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and
the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27 & n.26. The Court made clear, however, it was not "undertak[ing]
an exhaustive historical analysis today of the full scope of the Second
Amendment." Id. at 626.

2. The Constitutional Framework

Under Heller, therefore, there are certain types of firearms regulations that
do not govern conduct within the scope of the Amendment. We accordingly adopt,
as have other circuits, a two-step approach to determining the constitutionality
of the District's gun laws. Ezell v. City of Chicago, No. 10-3525, 2011 WL
2623511, at *12-13 (7th Cir. July 6, 2011); United States v. Chester, 628 F.3d
673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (10th
Cir. 2010); [*17] United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).
We ask first whether a particular provision impinges upon a right protected by
the Second Amendment; if it does, then we go on to determine whether the
provision passes muster under the appropriate level of constitutional scrutiny.
See Ezell, 2011 WL 2623511, at *12-13; Chester, 628 F.3d at 680; Reese, 627 F.3d
at 800-01; Marzzarella, 614 F.3d at 89; see also Nordyke v. King, 644 F.3d 776,
786 (9th Cir. 2011) ("only regulations which substantially burden the right to
keep and to bear arms trigger heightened scrutiny under the Second Amendment").
As explained below, and again in keeping with other circuits, we think that
insofar as the laws at issue here do impinge upon a Second Amendment right, they
warrant intermediate rather than strict scrutiny.

With respect to the first step, Heller tells us "longstanding" regulations
are "presumptively lawful," 554 U.S. at 626-27 & n.26; that is, they are
presumed not to burden conduct within the scope of the Second Amendment. See
McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (Heller "did not cast
doubt on [certain types of] longstanding regulatory measures"); Chester, 628
F.3d at 679 [*18] (Heller "acknowledged that the scope of the Second Amendment
is subject to historical limitations"); Marzzarella, 614 F.3d at 91 (Heller
indicates "longstanding limitations are exceptions to the right to bear arms");
United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (Heller "identified
limits" of the Second Amendment based upon "various historical restrictions on
possessing and carrying weapons"). This is a reasonable presumption because a
regulation that is "longstanding," which necessarily means it has long been
accepted by the public, is not likely to burden a constitutional right;
concomitantly the activities covered by a longstanding regulation are
presumptively not protected from regulation by the Second Amendment. A plaintiff
may rebut this presumption by showing the regulation does have more than a de
minimis effect upon his right. A requirement of newer vintage is not, however,
presumed to be valid.

3. Registration Requirements

To apply this analytical framework, we first consider whether each of the
challenged registration requirements impinges upon the right protected by the
Second Amendment. We uphold the requirement of mere registration because it is
longstanding, [*19] hence "presumptively lawful," and the presumption stands
unrebutted. Other registration requirements we remand to the district court, as
explained below, for further proceedings.

a. Do the registration requirements impinge upon the Second Amendment right?

The plaintiffs argue the registration requirements are not longstanding and
therefore not presumptively lawful, and in fact impermissibly burden the right
protected by the Second Amendment. The District responds that registration
requirements have been accepted throughout our history, are not overly
burdensome, and therefore do not affect the right protected by the Second
Amendment.

i. Basic registration requirements

The record supports the view that basic registration of handguns is deeply
enough rooted in our history to support the presumption that a registration
requirement is constitutional. The Court in Heller considered "prohibitions on
the possession of firearms by felons" to be "longstanding" although states did
not start to enact them until the early 20th century. See C. Kevin Marshall, Why
Can't Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol'y 695, 708 (2009)
(noting "ban on convicts possessing firearms were unknown before [*20] World
War I" and "compilation of laws in mid-1925 indicated that no State banned
possession of long guns based on a prior conviction; that only six banned
possession of concealable weapons on such basis; that, except for New York, ...
even those laws dated from 1923 or later"). At just about the same time, states
and localities began to require registration of handguns.

Registration typically required that a person provide to the local Government
a modicum of information about the registrant and his firearm. A 1911 New York
statute delegated the record keeping function to sellers of concealable
firearms, requiring them to "keep a register" recording the "date of sale, name,
age, occupation and residence of every purchaser of such a [firearm], together
with the calibre, make, model, manufacturer's number or other mark of
identification on such [firearm]," which register had to be "open at all
reasonable hours for the inspection of any peace officer." Act of May 25, 1911,
ch. 195, § 2, 1911 N.Y. Laws 444-45. Similar laws had already been enacted by
Illinois, Act of Apr. 16, 1881, ¶ 90, and Georgia, Act of Aug. 12, 1910, No.
432, § 2, 1910 Ga. Laws 134, 135 (official who grants license [*21] to carry
pistol or revolver "shall keep a record of the name of the person taking out
such license, the name of the maker of the fire-arm to be carried, and the
caliber and number of the same"). Other states were soon to do so. See Oregon,
Act of Feb. 21, 1917, ch. 377, 1917 Or. Laws 804, 805-06; Michigan, Act of June
2, 1927, No. 372, § 9, 1927 Mich. Laws 887, 891 ("any person within this state
who owns or has in his possession a pistol" must "present such weapon for safety
inspection to the commissioner or chief of police .... A certificate of
inspection shall thereupon be issued ... and kept as a permanent official record
for a period of six years"). In 1917 California likewise required the purchaser
of a concealable firearm to give the seller basic information about himself,
including his name, address, occupation, physical description (height and color
of skin, eyes, and hair), and about the weapon (caliber, make, model, number).
Act of May 4, 1917, ch. 145, § 7, 1917 Cal. Laws 221, 222-23. Hawaii did the
same in 1927, while still a territory, Small Arms Act, Act 206, § 9, 1927 Haw.
Laws 209, 211, as did the Congress for the District of Columbia in 1932, see Act
of July 8, 1932, [*22] ch. 465, § 8, 47 Stat. 650, 652.

In sum, the basic requirement to register a handgun is longstanding in
American law, accepted for a century in diverse states and cities and now
applicable to more than one fourth of the Nation by population.* Therefore, we
presume the District's basic registration requirement, D.C. Code § 7-2502.01(a),
including the submission of certain information, § 7-2502.03(b), does not
impinge upon the right protected by the Second Amendment. Further, we find no
basis in either the historical record or the record of this case to rebut that
presumption. Indeed, basic registration requirements are self-evidently de
minimis, for they are similar to other common registration or licensing schemes,
such as those for voting or for driving a car, that cannot reasonably be
considered onerous. Cf. Rosario v. Rockefeller, 410 U.S. 753, 754-58 (1973) (law
"requir[ing] a voter to enroll in the party of his choice at least 30 days
before the general election in November in order to vote in the next subsequent
party primary" does not violate First and Fourteenth Amendments because "if [the
petitioners'] plight [could] be characterized as disenfranchisement at all, it
was not [*23] caused by [the law], but by their own failure to take timely
steps to effect their enrollment"); id. at 760 ("the State is certainly
justified in imposing some reasonable cutoff point for registration or party
enrollment, which citizens must meet in order to participate in the next
election"); Justice v. Town of Cicero, 577 F.3d 768, 773-74 (7th Cir. 2009)
("ordinance requiring the registration of all firearms ... appears to be
consistent with the ruling in Heller"). These early registration requirements,
however, applied with only a few exceptions solely to handguns -- that is,
pistols and revolvers -- and not to long guns. Consequently, we hold the basic
registration requirements are constitutional only as applied to handguns. With
respect to long guns they are novel, not historic.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* Today
seven states require registration of some or all firearms, including Hawaii,
Haw. Rev. Stat. § 134-3(a), (b), (e) (registration of all firearms); California,
Cal. Penal Code § 11106(c) (registration for sales of handguns); Michigan, Mich.
Comp. Laws § 28.422(5) (purchaser must provide information to obtain "license"
for each pistol); New Jersey, N.J. Rev. Stat. 2C:58-12 (registration of assault
firearms); [*24] Louisiana, La. Rev. Stat. Ann. § 40:1783 (registration of
firearms); Maryland, Md. Code Ann., Crim. Law § 4-303 (registration of pre-ban
assault pistols); and Connecticut, Conn. Gen. Stat. § 53-202d(a) (registration
of pre-ban assault weapons); as do some cities and counties, including Chicago,
Municipal Code §§ 8-20-140 et seq. (registration of all firearms); New York
City, Admin. Code, §§ 10-304(a), (f) (registration of rifles and shotguns); Las
Vegas, Mun. Code § 10.66.140 (registration of handguns); Omaha, Mun. Code §
20-251 (registration of "any concealable firearm"); Cleveland, Offenses & Bus.
Activities Code §§ 674.02, 674.05 (registration card required for each handgun)
(but preempted by Ohio Rev. Code Ann. § 9.68(A)); and Clark County, Nevada, Code
§ 12.04.110 (registration of handguns). Moreover, several states require sellers
to report to law enforcement information about firearm sales identifying the
purchaser and the firearm. See Legal Cmty. Against Violence, Regulating Guns in
America: An Evaluation and Comparative Analysis of Federal, State, and Selected
Local Guns Laws, 253 (Feb. 2008),
http://www.lcav.org/publications-briefs/reports_analyses/RegGuns.entire....
df [*25] (identifying ten states).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

ii. Novel registration requirements

Several other of the District's registration requirements are not
longstanding, including the ballistics-identification provision, D.C. Code §
7-2502.03(d), the one-pistol-per-30-days rule, § 7-2502.03(e), and the
requirements that applicants appear in person, § 7-2502.04(c), and re-register
each firearm after three years, §§ 7-2502.07a(a)--(c). Certain portions of the
law that are more akin to licensing the gun owner than to registering the gun
are also novel; these include the requirement that an applicant demonstrate
knowledge about firearms, § 7-2502.03(a)(10), be fingerprinted and photographed,
§§ 7-2502.04(a)--(b), take a firearms training or safety course, §
7-2502.03(a)(13)(A), meet a vision requirement, § 7-2502.03(a)(11), and submit
to a background check every six years, § 7-2502.07a(d).*

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* Although
some types of licensure have been required by some states since the early 20th
century, see, e.g., Act of Apr. 6, 1909, ch. 114, § 3, 1909 N.H. Laws 451,
451-52 (license "to carry a loaded pistol or revolver"); Small Arms Act, Act
206, §§ 5, 7, 1927 Haw. Laws 209, 209-11 (license to carry a pistol or revolver
outside the [*26] home), the District's particular requirements are novel, not
longstanding.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The requirements that are not longstanding, which include, in addition to
those listed in the prior paragraph, all the requirements as applied to long
guns, also affect the Second Amendment right because they are not de minimis.**
All of these requirements, such as the mandatory five hours of firearm training
and instruction, § 7-2502.03(a)(13)(A), make it considerably more difficult for
a person lawfully to acquire and keep a firearm, including a handgun, for the
purpose of self-defense in the home -- the "core lawful purpose" protected by
the Second Amendment, Heller, 554 U.S. at 630. Because they impinge upon that
right, we must determine whether these requirements are constitutional.* In
order to do that, however, we must first determine the degree of scrutiny to
which they are appropriately subject.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -** The
requirement of basic registration as applied to long guns may also be de
minimis. For now, however, we assume this requirement, too, impinges upon the
Second Amendment right because, as we discuss below, the record is devoid of
information concerning the application of registration requirements to long
guns. [*27] On remand and with the benefit of additional evidence, the district
court will be better able to address this question in the first instance.
* We note that some of the plaintiffs' arguments -- in particular with respect
to the provisions requiring registrants to demonstrate knowledge about firearms,
meet a vision standard, and take a training course -- are so cursory we might,
in other circumstances, consider them forfeit. See United States v. Law, 528
F.3d 888, 908 n.11 (D.C. Cir. 2008) (appellant's argument forfeited "because he
failed to develop it"). As we will in any event be remanding other registration
requirements to the district court, however, see Part II.B.3.c, we see no reason
to foreclose these particular plaintiffs from fleshing out their arguments as
well as supplementing the record, if they can.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

b. Intermediate scrutiny is appropriate

The plaintiffs argue strict scrutiny is the appropriate standard of review
because, in holding the Fourteenth Amendment made the Second Amendment
applicable to the States, the Court in McDonald described the right "to keep and
bear arms [as] among those fundamental rights necessary to our system of ordered
liberty," 130 S. Ct. at 3042. The [*28] District responds that strict scrutiny
would be inappropriate because, among other reasons, the right to keep and carry
arms has always been heavily regulated; it argues we should adopt a
"reasonable-regulation test." The plaintiffs, in turn, contend Heller forecloses
a "reasonableness" test.

Heller clearly does reject any kind of "rational basis" or reasonableness
test, see 554 U.S. at 628 n.27, but it leaves open the question what level of
scrutiny we are to apply to laws regulating firearms. True, the Supreme Court
often applies strict scrutiny to legislation that impinges upon a fundamental
right. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988) ("classifications
affecting fundamental rights are given the most exacting scrutiny" (citation
omitted)). In applying strict scrutiny, the Court requires the Government to
prove its law "furthers a compelling interest and is narrowly tailored to
achieve that interest." Citizens United v. FEC, 130 S. Ct. 876, 898 (2010)
(internal quotation marks omitted). The Court has not said, however, and it does
not logically follow, that strict scrutiny is called for whenever a fundamental
right is at stake. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) [*29] (applying intermediate scrutiny to restrictions on "time, place,
or manner of protected speech"); Marzzarella, 614 F.3d at 96 ("Strict scrutiny
does not apply automatically any time an enumerated right is involved"); Chester
, 628 F.3d at 682 ("We do not apply strict scrutiny whenever a law impinges upon
a right specifically enumerated in the Bill of Rights"); Adam Winkler,
Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 697-98, 700 (2007)
("mere fact of 'fundamentality' does not answer the question of what would be
the appropriate standard of review for the right to bear arms" as "many of the
individual rights in the Bill of Rights do not trigger strict scrutiny,
including many that are incorporated," and "[e]ven among those incorporated
rights that do prompt strict scrutiny, such as the freedom of speech and of
religion, strict scrutiny is only occasionally applied"). Cf. Mills v.
Habluetzel, 456 U.S. 91, 98-99 (1982) (disabilities attendant to illegitimacy
are constitutional "to the extent they are substantially related to a legitimate
state interest"); Craig v. Boren, 429 U.S. 190, 197 (1976) ("classifications by
gender must serve important governmental objectives and [*30] must be
substantially related to achievement of those objectives").

As with the First Amendment, the level of scrutiny applicable under the
Second Amendment surely "depends on the nature of the conduct being regulated
and the degree to which the challenged law burdens the right." Chester, 628 F.3d
at 682; see also Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 642
(1994) ("regulations that are unrelated to the content of speech are subject to
an intermediate level of scrutiny because in most cases they pose a less
substantial risk of excising certain ideas or viewpoints from the public
dialogue" (citation omitted)); Zauderer v. Office of Disciplinary Counsel of
Supreme Court of Ohio, 471 U.S. 626, 651 (1985) ("We recognize that unjustified
or unduly burdensome disclosure requirements might offend the First Amendment by
chilling protected commercial speech. But we hold that an advertiser's rights
are adequately protected as long as disclosure requirements are reasonably
related to the State's interest in preventing deception of consumers."); Nelson
Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L.
Rev. 1343, 1376 (2009) ("The case law dealing with [*31] free speech and the
free exercise of religion provides a particularly good analogue" for Second
Amendment). That is, a regulation that imposes a substantial burden upon the
core right of self-defense protected by the Second Amendment must have a strong
justification, whereas a regulation that imposes a less substantial burden
should be proportionately easier to justify. See Turner I, 512 U.S. at 661
("must-carry provisions do not pose such inherent dangers to free expression ...
as to justify application of the most exacting level of First Amendment
scrutiny"; rather, "the appropriate standard ... is the intermediate level of
scrutiny applicable to content-neutral restrictions that impose an incidental
burden on speech"); Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S.
469, 477 (1989) ("commercial speech [enjoys] a limited measure of protection,
commensurate with its subordinate position in the scale of First Amendment
values" (internal quotation marks omitted)); Buckley v. Valeo, 424 U.S. 1, 44-45
(1976) ("expenditure limitations" are subject to "exacting scrutiny applicable
to limitations on core First Amendment rights of political expression" because
they impose a "great[] [*32] burden on basic freedoms"); Ezell, 2011 WL
2623511, at *13 (level of scrutiny "will depend on how close the law comes to
the core of the Second Amendment right and the severity of the law's burden on
the right"); see also Eugene Volokh, Implementing the Right to Keep and Bear
Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L.
Rev. 1443, 1471 (2009) ("Ballot access regulations are ... subject to strict
scrutiny if they 'impose a severe burden on associational rights,' but to a much
weaker level of scrutiny if they 'impose[] only modest burdens'" (quoting Wash.
State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1191-92 (2008)));
Winkler, supra, at 698 ("Strict scrutiny ... does not apply to fundamental,
preferred rights when the courts determine that the underlying burden is only
incidental").

As between strict and intermediate scrutiny, we conclude the latter is the
more appropriate standard for review of gun registration laws. As the Third
Circuit reasoned in Marzzarella with regard to a prohibition on possession of a
firearm with the serial numbers obliterated, registration requirements "do[] not
severely limit the possession of firearms." 614 F.3d at 97. [*33] Indeed, none
of the District's registration requirements prevents an individual from
possessing a firearm in his home or elsewhere, whether for self-defense or
hunting, or any other lawful purpose.

c. Intermediate scrutiny requires remand

As for the novel registration requirements, to pass muster under intermediate
scrutiny the District must show they are "substantially related to an important
governmental objective." Clark, 486 U.S. at 461; see also United States v.
Williams, 616 F.3d 685, 692-94 (7th Cir. 2010) (prohibition of firearm
possession by felons survives intermediate scrutiny). That is, the District must
establish a tight "fit" between the registration requirements and an important
or substantial governmental interest, a fit "that employs not necessarily the
least restrictive means but ... a means narrowly tailored to achieve the desired
objective." Fox, 492 U.S. at 480; see also Ward, 491 U.S. at 782-83 ("The
requirement of narrow tailoring is satisfied so long as the regulation promotes
a substantial governmental interest that would be achieved less effectively
absent the regulation, and the means chosen are not substantially broader than
necessary to achieve that interest"). [*34] We think the District has advanced,
albeit incompletely -- almost cursorily -- articulated, two important
governmental interests it may have in the registration requirements, viz., to
protect police officers and to aid in crime control. Cf. United States v.
Salerno, 481 U.S. 739, 750 (1987) ("the Government's general interest in
preventing crime is compelling"). The Council Committee on Public Safety
explained: "Registration is critical because it ... allows officers to determine
in advance whether individuals involved in a call may have firearms ... [and]
assists law enforcement in determining whether registered owners are eligible to
possess firearms or have fallen into a prohibited class."* Report on Bill
17-843, at 3-4 (Nov. 25, 2008).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* On
remand, the District will have an opportunity to explain in greater detail how
these governmental interests are served by the novel registration requirements.
The Committee also thought registration useful because it "gives [*35] law
enforcement essential information about firearm ownership, ... permits officers
to charge individuals with a crime if an individual is in possession of an
unregistered firearm, and permits officers to seize unregistered weapons."
Report on Bill 17-843, at 3-4 (Nov. 25, 2008). These rationales are circular,
however, and do not on their own establish either an important interest of the
Government or a substantial relationship between the registration of firearms
and an important interest.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

We cannot conclude, however, that the novel registration requirements -- or
any registration requirement as applied to long guns -- survive intermediate
scrutiny based upon the record as it stands because the District has not
demonstrated a close fit between those requirements and its governmental
interests. In support of the registration requirements, the District relies upon
the Committee Report on the FRA, along with testimony and written statements
submitted to the Committee at public hearings. Even so, the record is inadequate
for us confidently to hold the registration requirements are narrowly tailored.

For example, the Committee Report asserts "studies show" that "laws
restricting multiple purchases [*36] or sales of firearms are designed to
reduce the number of guns entering the illegal market and to stem the flow of
firearms between states," and that "handguns sold in multiple sales to the same
individual purchaser are frequently used in crime." Id. at 10. The Report
neither identifies the studies relied upon nor claims those studies showed the
laws achieved their purpose, nor in any other way attempts to justify requiring
a person who registered a pistol to wait 30 days to register another one. The
record does include testimony that offers cursory rationales for some other
requirements, such as safety training and demonstrating knowledge of gun laws,
see, e.g., Testimony of Cathy L. Lanier, Chief of Police, at 2 (Oct. 1, 2008),
but the District fails to present any data or other evidence to substantiate its
claim that these requirements can reasonably be expected to promote either of
the important governmental interests it has invoked (perhaps because it was
relying upon the asserted interests we have discounted as circular).

Although we do "accord substantial deference to the predictive judgments" of
the legislature, Turner Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 195
(1997) [*37] (quoting Turner I, 512 U.S. at 665) (internal quotation marks
omitted), the District is not thereby "insulated from meaningful judicial
review," Turner I, 512 U.S. at 666 (controlling opinion of Kennedy, J.); see
also City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 440 (2002)
(plurality opinion) (citing Turner I and "acknowledg[ing] that the Los Angeles
City Council is in a better position than the Judiciary to gather and evaluate
data on local problems"). Rather, we must "assure that, in formulating its
judgments, [the legislature] has drawn reasonable inferences based on
substantial evidence." Turner II, 520 U.S. at 195 (quoting Turner I, 512 U.S. at
666) (internal quotation marks omitted). Therefore, the District needs to
present some meaningful evidence, not mere assertions, to justify its predictive
judgments. On the present record, we conclude the District has not supplied
evidence adequate to show a substantial relationship between any of the novel
registration requirements and an important governmental interest.

Nor, however, do the plaintiffs present more meaningful contrary evidence
concerning handguns, and neither the District nor the plaintiffs present any
evidence [*38] at all concerning application of the registration requirements
to long guns. The parties' mutual failure in their briefs to distinguish between
handguns and long guns points up a significant deficiency in the present record.
* The Committee Report implicitly acknowledged the distinction between handguns
and long guns only back-handedly, quoting Heller to emphasize specifically "the
problem of handgun violence in this country" before discussing the proposed FRA.
Report on Bill 17-843, at 3 (Nov. 25, 2008). Handguns indeed appear to have been
the exclusive subject of the Committee's concern. Nowhere in the Report is there
even a single reference to the need for registration of rifles or shotguns. For
all the legislative record and the record in this case reveal, the provisions of
the FRA that deal specifically with registration of long guns might have been
written in invisible ink.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* while the
Court in Heller observed that the handgun is "the quintessential self-defense
weapon," 554 U.S. at 629, a rifle or shotgun is the firearm of choice for
hunting, which activity Heller recognized as providing one basis for the right
to keep and bear arms, albeit not the central one, id. at 599.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In the [*39] light of these evidentiary deficiencies and "the importance of
the issues" at stake in this case, taking our cue from the Supreme Court in
Turner I, we believe the parties should have an opportunity "to develop a more
thorough factual record." 512 U.S. at 664-68 (controlling opinion of Kennedy,
J.). In Turner I, the Court had determined intermediate scrutiny was appropriate
for the First Amendment challenge at issue. "On the state of the record
developed [that] far," however, the Government was unable to show the law was
narrowly tailored. Id. at 665. Rather than invalidate a legislative judgment
based upon that shortcoming, the Court remanded the case for development of "a
more thorough factual record." Id. at 668. We follow suit by remanding the novel
registration requirements, and all registration requirements as applied to long
guns, to the district court for further evidentiary proceedings.

4. Assault Weapons and Large-Capacity Magazines

Because the plaintiffs fail to present an argument in their briefs
questioning the constitutionality of the ban on semi-automatic pistols and
shotguns, see page 7 footnote * above, we construe the plaintiffs' challenge to
the ban on assault weapons [*40] as going only to the prohibition of certain
semi-automatic rifles. We are not aware of evidence that prohibitions on either
semi-automatic rifles or large-capacity magazines are longstanding and thereby
deserving of a presumption of validity.* For the court to determine whether
these prohibitions are constitutional, therefore, we first must ask whether they
impinge upon the right protected by the Second Amendment. That is, prohibiting
certain arms might not meaningfully affect "individual self-defense, [which] is
'the central component' of the Second Amendment right." McDonald, 130 S. Ct. at
3036 (quoting Heller, 554 U.S. at 599). Of course, the Court also said the
Second Amendment protects the right to keep and bear arms for other "lawful
purposes," such as hunting, but self-defense is the "core lawful purpose"
protected, Heller, 554 U.S. at 630.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* We know
of only two exceptions: the Act of July 8, 1932, ch. 465, §§ 1, 8, 47 Stat. 650,
650, 652, in which the Congress banned in D.C. "any firearm which shoots ...
semiautomatically more than twelve shots without reloading," and the Act of June
2, 1927, No. 372, § 3, 1927 Mich. Laws 887, 888, which prohibited the possession
of any "firearm [*41] which can be fired more than sixteen times without
reloading."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The Court in Heller, as mentioned above at pages 12-13, recognized yet
another "limitation on the right to keep and carry arms," namely that the "sorts
of weapons protected" are those "'in common use at the time' for lawful purposes
like self-defense." Id. at 624, 627. The Court found this limitation "fairly
supported by the historical tradition of prohibiting the carrying of 'dangerous
and unusual weapons.'" Id. at 627. Because the prohibitions at issue, unlike the
registration requirements, apply only to particular classes of weapons, we must
also ask whether the prohibited weapons are "typically possessed by law-abiding
citizens for lawful purposes," id. at 625; if not, then they are not the sorts
of "Arms" protected by the Second Amendment.

a. Do the prohibitions impinge upon the Second Amendment right?

The plaintiffs contend semi-automatic rifles, in particular the AR variants,
are commonly possessed for self-protection in the home as well as for sport.
They also argue magazines holding more than ten rounds are commonly possessed
for self-defense and for other lawful purposes and that the prohibition of such
magazines [*42] would impose a burden upon them. Specifically, they point out
that without a large-capacity magazine it would be necessary, in a stressful
situation, to pause in order to reload the firearm.

The District, by contrast, argues neither assault weapons nor weapons with
large-capacity magazines are among the "Arms" protected by the Second Amendment
because they are both "dangerous and unusual," Heller, 554 U.S. at 627 (internal
quotation marks omitted), and because prohibiting them minimally burdens the
plaintiffs; hence the District maintains the bans are constitutional. The
Committee on Public Safety received evidence that assault weapons are not useful
for the purposes of sporting or self-defense, but rather are "military-style"
weapons designed for offensive use. See generally Testimony of Brian J. Siebel,
Brady Center to Prevent Gun Violence (Oct. 1, 2008). The Committee concluded
assault weapons "have no legitimate use as self-defense weapons, and would in
fact increase the danger to law-abiding users and innocent bystanders if kept in
the home or used in self-defense situations." Report on Bill 17-843, at 7 (Nov.
25, 2008).

The District likewise contends magazines holding more than [*43] ten rounds
are disproportionately involved in the murder of law enforcement officers and in
mass shootings, and have little value for self-defense or sport. It cites the
Siebel testimony, which relies upon a report of the federal Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) stating that semi-automatic rifles with
large-capacity magazines are not suitable for sporting purposes. The District
also reasons that the usefulness of large-capacity magazines for self-defense in
rare circumstances does not mean the burden imposed upon the plaintiffs is more
than minimal.

We think it clear enough in the record that semi-automatic rifles and
magazines holding more than ten rounds are indeed in "common use," as the
plaintiffs contend. Approximately 1.6 million AR-15s alone have been
manufactured since 1986, and in 2007 this one popular model accounted for 5.5
percent of all firearms, and 14.4 percent of all rifles, produced in the U.S.
for the domestic market. As for magazines, fully 18 percent of all firearms
owned by civilians in 1994 were equipped with magazines holding more than ten
rounds, and approximately 4.7 million more such magazines were imported into the
United States between [*44] 1995 and 2000. There may well be some capacity
above which magazines are not in common use but, if so, the record is devoid of
evidence as to what that capacity is; in any event, that capacity surely is not
ten.

Nevertheless, based upon the record as it stands, we cannot be certain
whether these weapons are commonly used or are useful specifically for
self-defense or hunting and therefore whether the prohibitions of certain
semi-automatic rifles and magazines holding more than ten rounds meaningfully
affect the right to keep and bear arms. We need not resolve that question,
however, because even assuming they do impinge upon the right protected by the
Second Amendment, we think intermediate scrutiny is the appropriate standard of
review and the prohibitions survive that standard.

b. Intermediate scrutiny is appropriate

As we did in evaluating the constitutionality of certain of the registration
requirements, we determine the appropriate standard of review by assessing how
severely the prohibitions burden the Second Amendment right. Unlike the law held
unconstitutional in Heller, the laws at issue here do not prohibit the
possession of "the quintessential self-defense weapon," to wit, [*45] the
handgun. 554 U.S. at 629. Nor does the ban on certain semi-automatic rifles
prevent a person from keeping a suitable and commonly used weapon for protection
in the home or for hunting, whether a handgun or a non-automatic long gun. See
Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of
Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 185 (1995) (revolvers
and semi-automatic pistols are together used almost 80% of the time in incidents
of self-defense with a gun); Dep't of Treasury, Study on the Sporting
Suitability of Modified Semiautomatic Assault Rifles 38 (1998) (semi-automatic
assault rifles studied are "not generally recognized as particularly suitable
for or readily adaptable to sporting purposes"). Although we cannot be confident
the prohibitions impinge at all upon the core right protected by the Second
Amendment, we are reasonably certain the prohibitions do not impose a
substantial burden upon that right. As the District points out, the plaintiffs
present hardly any evidence that semi-automatic rifles and magazines holding
more than ten rounds are well-suited to or preferred for the purpose of
self-defense or sport. Cf. Kleck & Gertz, supra, at 177 [*46] (finding that of
340,000 to 400,000 instances of defensive gun use in which the defenders
believed the use of a gun had saved a life, 240,000 to 300,000 involved
handguns). Accordingly, we believe intermediate rather than strict scrutiny is
the appropriate standard of review.

In this we agree with the reasoning of the Third Circuit in Marzzarella. The
court there applied intermediate scrutiny to the prohibition of unmarked
firearms in part because it thought the ban was similar to a regulation "of the
manner in which ... speech takes place," a type of regulation subject to
intermediate scrutiny "under the time, place, and manner doctrine" of the First
Amendment. 614 F.3d at 97. Notably, because the prohibition left a person "free
to possess any otherwise lawful firearm," the court reasoned it was "more
accurately characterized as a regulation of the manner in which persons may
lawfully exercise their Second Amendment rights." Id. Here, too, the prohibition
of semi-automatic rifles and large-capacity magazines does not effectively
disarm individuals or substantially affect their ability to defend themselves.
See Volokh, supra, at 1471 ("where content-neutral speech restrictions are
involved, [*47] restrictions that impose severe burdens (because they don't
leave open ample alternative channels) must be judged under strict scrutiny, but
restrictions that impose only modest burdens (because they do leave open ample
alternative channels) are judged under a mild form of intermediate scrutiny").

c. The prohibitions survive intermediate scrutiny

Recall that when subject to intermediate scrutiny the Government has the
burden of showing there is a substantial relationship or reasonable "fit"
between, on the one hand, the prohibition on assault weapons and magazines
holding more than ten rounds and, on the other, its important interests in
protecting police officers and controlling crime. The record evidence
substantiates that the District's prohibition is substantially related to those
ends.

The Committee on Public Safety relied upon a report by the ATF, which
described assault weapons as creating "mass produced mayhem." Assault Weapons
Profile 19 (1994). This description is elaborated in the Siebel testimony for
the Brady Center: "the military features of semiautomatic assault weapons are
designed to enhance their capacity to shoot multiple human targets very rapidly"
and "[p]istol grips [*48] on assault rifles ... help stabilize the weapon
during rapid fire and allow the shooter to spray-fire from the hip position."
The same source also suggests assault weapons are preferred by criminals and
place law enforcement officers "at particular risk ... because of their high
firepower," as does the ATF, see Dep't of Treasury, Study on the Sporting
Suitability of Modified Semiautomatic Assault Rifles 34-35, 38 (1998). See also
Christopher S. Koper et al., U. Penn. Jerry Lee Ctr. of Criminology, An Updated
Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun
Violence, 1994-2003, at 51, 87 (2004) (assault weapons "account for a larger
share of guns used in mass murders and murders of police, crimes for which
weapons with greater firepower would seem particularly useful," and "criminal
use of [assault weapons] ... declined after" the federal assault weapons ban
enacted in 1994 "independently of trends in gun crime"); id. at 11 ("AR-15 type
rifles are civilian weapons patterned after the U.S. military's M-16 rifle and
were the assault rifles most commonly used in crime before the ban" in federal
law from 1994 to 2004).

Heller suggests "M-16 rifles and the like" [*49] may be banned because they
are "dangerous and unusual," see 554 U.S. at 627. The Court had previously
described the "AR-15" as "the civilian version of the military's M-16 rifle."
Staples v. United States, 511 U.S. 600, 603 (1994). Although semi-automatic
firearms, unlike automatic M-16s, fire "only one shot with each pull of the
trigger," id. at 602 n.1, semi-automatics still fire almost as rapidly as
automatics. See Testimony of Brian J. Siebel, Brady Center to Prevent Gun
Violence, at 1 (Oct. 1, 2008) ("30-round magazine" of UZI "was emptied in
slightly less than two seconds on full automatic, while the same magazine was
emptied in just five seconds on semiautomatic"). Indeed, it is difficult to draw
meaningful distinctions between the AR-15 and the M-16. See Staples, 511 U.S. at
603 ("Many M-16 parts are interchangeable with those in the AR-15 and can be
used to convert the AR-15 into an automatic weapon"); Koper, supra, at 4 (AR-15
and other federally banned assault weapons "are civilian copies of military
weapons and accept ammunition magazines made for those military weapons"). In
short, the evidence demonstrates a ban on assault weapons is likely to promote
the Government's [*50] interest in crime control in the densely populated urban
area that is the District of Columbia. See Comm. on Pub. Safety, Report on Bill
17-593, at 4 (Nov. 25, 2008) ("The District shares the problem of gun violence
with other dense, urban jurisdictions").

The record also supports the limitation on magazine capacity to ten rounds.
The Committee relied upon Siebel's testimony that "[t]he threat posed by
military-style assault weapons is increased significantly if they can be
equipped with high-capacity ammunition magazines" because, "[b]y permitting a
shooter to fire more than ten rounds without reloading, they greatly increase
the firepower of mass shooters." See also Koper, supra, at 87 ("guns used in
shootings are 17% to 26% more likely to have [magazines holding more than ten
rounds] than guns used in gunfire cases resulting in no wounded victims"); id.
at 97 ("studies ... suggest that attacks with semiautomatics -- including
[assault weapons] and other semiautomatics with [magazines holding more than ten
rounds] -- result in more shots fired, persons wounded, and wounds per victim
than do other gun attacks"). The Siebel testimony moreover supports the
District's claim that high-capacity [*51] magazines are dangerous in
self-defense situations because "the tendency is for defenders to keep firing
until all bullets have been expended, which poses grave risks to others in the
household, passersby, and bystanders." Moreover, the Chief of Police testified
the "2 or 3 second pause" during which a criminal reloads his firearm "can be of
critical benefit to law enforcement." Overall the evidence demonstrates that
large-capacity magazines tend to pose a danger to innocent people and
particularly to police officers, which supports the District's claim that a ban
on such magazines is likely to promote its important governmental interests.

We conclude the District has carried its burden of showing a substantial
relationship between the prohibition of both semi-automatic rifles and magazines
holding more than ten rounds and the objectives of protecting police officers
and controlling crime. Accordingly, the bans do not violate the plaintiffs'
constitutional right to keep and bear arms.

III. Conclusion

For the reasons stated above, we affirm the judgment of the district court
with respect, first, to the requirement of mere registration as applied to
handguns and expressed in D.C. Code §§ 7-2502.01(a) [*52] and 7-2502.03(b), and
second, to the ban on "assault weapons" and large-capacity magazines, as they
are defined in §§ 7-2502.02(a)(6), 7-2501.01(3A)(A)(i)(I), (IV), and
7-2506.01(b). With respect to the registration requirements in §§
7-2502.03(a)(10), 7-2502.03(a)(11), 7-2502.03(a)(13)(A), 7-2502.03(d),
7-2502.03(e), 7-2502.04, and 7-2502.07a, and all the registration requirements
(including §§ 7-2502.01(a) and 7-2502.03(b)) as applied to long guns, see Part
II.B.3.c, the judgment is vacated and this matter is remanded to the district
court for further proceedings consistent with this opinion.

So ordered.

Appendix: Regarding the Dissent

Our colleague has issued a lengthy dissenting opinion explaining why he would
strike down both the District's registration requirements and its ban on
semi-automatic rifles. We respond to his main arguments below.

A. Interpreting Heller and McDonald

A substantial portion of the dissent is devoted to arguing Heller and
McDonald preclude the application of heightened (intermediate, or for that
matter, strict) scrutiny in all Second Amendment cases. The dissent reasons that
Heller rejected balancing tests and that heightened scrutiny is a type of
balancing [*53] test. As we read Heller, the Court rejected only Justice
Breyer's proposed "interest-balancing" inquiry, which would have had the Court
ask whether the challenged statute "burdens a protected interest in a way or to
an extent that is out of proportion to the statute's salutary effects upon other
important governmental interests." 554 U.S. at 689-90 (Breyer J., dissenting).
That is, Justice Breyer, rather than ask merely whether the Government is
promoting an important interest by way of a narrowly tailored means, as we do
here, would have had courts in Second Amendment cases decide whether the
challenged statute "imposes burdens that, when viewed in light of the statute's
legitimate objectives, are disproportionate." Id. at 693. Thus, although Justice
Breyer would have had us assess whether the District's handgun ban "further[s]
the sort of life-preserving and public-safety interests that the Court has
called 'compelling,'" id. at 705 (citation omitted), the key to his
"interest-balancing" approach was "proportionality"; that is, he would have had
us weigh this governmental interest against "the extent to which the District's
law burdens the interests that the Second Amendment seeks [*54] to protect," id
. at 706.

Our dissenting colleague asserts (at 25) heightened scrutiny is also "a form
of interest balancing" and maintains that strict and intermediate scrutiny
"always involve at least some assessment of whether the law in question is
sufficiently important to justify infringement on an individual constitutional
right." Although, as he points out, the Supreme Court has in a few opinions
applying heightened scrutiny -- out of scores if not hundreds of such opinions
-- used the word "balance," heightened scrutiny is clearly not the
"interest-balancing inquiry" proposed by Justice Breyer and rejected by the
Court in Heller. The Court there said, Justice Breyer's proposal did not
correspond to any of "the traditionally expressed levels (strict scrutiny,
intermediate scrutiny, rational basis)," 554 U.S. at 634, but was rather "a
judge-empowering 'interest-balancing inquiry'" that would have a court weigh the
asserted governmental interests against the burden the Government would place
upon exercise of the Second Amendment right, a balancing that is not part of
either strict or intermediate scrutiny.

The dissent further contends McDonald confirms the Supreme Court's rejection
[*55] of heightened scrutiny in Second Amendment cases because a plurality of
the Court there said "Justice Breyer is incorrect that incorporation will
require judges to assess the costs and benefits of firearms restrictions and
thus to make difficult empirical judgments in an area in which they lack
expertise." 130 S. Ct. at 3050. That observation was clearly and specifically
directed to Justice Breyer's interest-balancing inquiry, as the very next
sentence shows: "As we have noted, while his opinion in Heller recommended an
interest-balancing test, the Court specifically rejected that suggestion." Id.
Moreover, strict and intermediate scrutiny do not, as the dissent asserts (at
19), "obviously require assessment of the 'costs and benefits' of government
regulations." Rather, they require an assessment of whether a particular law
will serve an important or compelling governmental interest; that is not a
comparative judgment.

If the Supreme Court truly intended to rule out any form of heightened
scrutiny for all Second Amendment cases, then it surely would have said at least
something to that effect. Cf. Heller, 554 U.S. at 628 n.27 (expressly rejecting
rational basis review). The Court did [*56] not say anything of the sort; the
plaintiffs in this case do not suggest it did; and the idea that Heller
precludes heightened scrutiny has eluded every circuit to have addressed that
question since Heller was issued. See First Circuit: United States v. Booker,
644 F.3d 12, 25 (2011) (requiring "a substantial relationship between the
restriction and an important governmental objective"); Third Circuit:
Marzzarella, 614 F.3d at 97 (applying intermediate scrutiny); Fourth Circuit:
United States v. Masciandaro, 638 F.3d 458, 471 (2011) (same); Chester, 628 F.3d
at 683 (same); id. at 690 (Davis, J., concurring) (same); Seventh Circuit: Ezell
, 2011 WL 2623511, at *17 (applying "more rigorous showing" than intermediate
scrutiny, "if not quite 'strict scrutiny'"); id. at *21-22 (Rovner J.,
concurring) (endorsing intermediate scrutiny); Williams, 616 F.3d at 692-93
(applying intermediate scrutiny); United States v. Skoien, 614 F.3d 638, 641-42
(2010) (en banc) (upholding law upon assumption intermediate scrutiny applies);
Ninth Circuit: Nordyke, 644 F.3d at 786 n.9 (reserving "precisely what type of
heightened scrutiny applies to laws that substantially burden Second Amendment
rights"); id. at 795 [*57] (Gould J., concurring in part, "would subject to
heightened scrutiny only arms regulations falling within the core purposes of
the Second Amendment" and "would subject incidental burdens on the Second
Amendment right ... to reasonableness review"); Tenth Circuit: Reese, 627 F.3d
at 802 (applying intermediate scrutiny).

The dissent (at 30-31) takes us to task for suggesting a restriction on a
core enumerated constitutional right can be subjected to intermediate scrutiny.
This assertion, true or false, is simply misplaced; we apply intermediate
scrutiny precisely because the District's laws do not affect the core right
protected by the Second Amendment. See supra at 22-24, 31-32.

Unlike our dissenting colleague, we read Heller straightforwardly: The
Supreme Court there left open and untouched even by implication the issue
presented in this case. The Court held the ban on handguns unconstitutional
without at the same time adopting any particular level of scrutiny for Second
Amendment cases because it concluded that "[u]nder any of the standards of
scrutiny that we have applied to enumerated constitutional rights, banning from
the home the most preferred firearm in the nation to keep and [*58] use for
protection of one's home and family would fail constitutional muster." Id. at
628-29 (internal quotation marks and citation omitted); McDonald, 130 S. Ct. at
3036 (quoting Heller, 554 U.S. at 628-30). Nothing in Heller suggests a case
involving a restriction significantly less severe than the total prohibition of
handguns at issue there could or should be resolved without reference to one or
another of the familiar constitutional "standards of scrutiny." On the contrary,
the Supreme Court was explicit in cautioning that because Heller was its "first
in-depth examination of the Second Amendment, one should not expect it to
clarify the entire field." Heller, 554 U.S. at 635; see also, e.g., Ezell, 2011
WL 2623511, at *13 (with the exception of "broadly prohibitory laws restricting
the core Second Amendment right," courts are "left to choose an appropriate
standard of review from among the heightened standards of scrutiny the Court
applies to governmental actions alleged to infringe enumerated constitutional
rights"); Chester, 628 F.3d at 682 ("Heller left open the level of scrutiny
applicable to review a law that burdens conduct protected under the Second
Amendment, other than [*59] to indicate that rational-basis review would not
apply in this context"); Volokh, supra, at 1456 ("The Court [in Heller] did not
discuss what analysis would be proper for less 'severe' restrictions, likely
because it had no occasion to").

Having rejected the possibility of heightened scrutiny, the dissent (at 31)
goes on to find in Heller this proposition: "Gun bans and gun regulations that
are not longstanding or sufficiently rooted in text, history, and tradition are
not consistent with the Second Amendment individual right." We do not see this
purportedly "up-front" test "announced" anywhere in the Court's opinion. The
Court in Heller said certain "longstanding" regulations are "presumptively
lawful," 554 U.S. at 626-27 & n.26, but it nowhere suggested, nor does it follow
logically, that a regulation must be longstanding or "rooted in text, history,
and tradition" in order to be constitutional. As we have said, the Court struck
down the handgun ban because it so severely restricted the core Second Amendment
right of self-defense in the home that it "would fail constitutional muster"
under any standard of scrutiny. Likewise, the Court invalidated the District's
requirement that handguns [*60] "in the home be rendered and kept inoperable"
because that requirement "makes it impossible for citizens to use them for the
core lawful purpose of self-defense." Id. at 630. The Court in Heller did
consider whether there were historical analogues to the handgun ban, but only to
note, primarily in response to Justice Breyer's dissent, that because earlier
laws were far less restrictive, they did not support the constitutionality of a
ban on handguns. See id. at 632 ("Nothing about [the] fire-safety laws" cited by
Justice Breyer "undermines our analysis; they do not remotely burden the right
of self-defense as much as an absolute ban on handguns"); id. ("other
founding-era laws" cited by Justice Breyer "provide no support for the severe
restriction in the present case"). In any event, we think it clear Heller did
not announce the "up-front" test applicable to all Second Amendment cases that
our dissenting colleague goes to great lengths to "divine" from that opinion.

In sum, Heller explicitly leaves many questions unresolved and says nothing
to cast doubt upon the propriety of the lower courts applying some level of
heightened scrutiny in a Second Amendment challenge to a law significantly
[*61] less restrictive than the outright ban on all handguns invalidated in that
case. Although Heller renders longstanding regulations presumptively
constitutional, it nowhere suggests a law must be longstanding or rooted in
text, history, and tradition to be constitutional.

B. Registration Requirements

Our dissenting colleague contends (at 47) the historical registration laws we
cite do not support the District's basic registration requirement because to
rely upon those laws as historical precedents "is to conduct the Heller analysis
at an inappropriately high level of generality." In fact, however, the
historical regulations and the District's basic registration requirement are not
just generally alike, they are practically identical: They all require gun
owners to give an agent of the Government basic information about themselves and
their firearm.

In any event, we do not decide, but rather remand to the district court, the
question whether the District's novel registration requirements and all its
registration requirements as applied to long guns withstand intermediate
scrutiny. See supra at 28. Accordingly, those registration requirements will be
deemed constitutional only if the District [*62] shows they serve its
undoubtedly important governmental interests in preventing crimes and protecting
police officers.

C. Assault Weapons

In arguing Heller requires holding unconstitutional the District's ban on
certain semi-automatic rifles, the dissent relies heavily upon the idea that
Heller held possession of semi-automatic handguns is "constitutionally
protected." The Court's holding in Heller was in fact narrower, condemning as
unconstitutional a prohibition of all handguns, that is, a ban on the "entire
class of 'arms' that is overwhelmingly chosen by American society for [the]
lawful purpose" of self-defense. 554 U.S. at 628. A narrower prohibition, such
as a ban on certain semi-automatic pistols, may also "fail constitutional
muster," id., but that question has not yet been decided by the Supreme Court.*
Therefore, the dissent (at 32-33) mischaracterizes the question before us as
whether "the Second Amendment protects semi-automatic handguns but not
semi-automatic rifles." The dissent at (38 n.16) insists it is "implausible" to
read Heller as "protect[ing] handguns that are revolvers but not handguns that
are semi-automatic." We do not, however, hold possession of semi-automatic
[*63] handguns is outside the protection of the Second Amendment. We simply do
not read Heller as foreclosing every ban on every possible sub-class of handguns
or, for that matter, a ban on a sub-class of rifles. See Marzzarella, 614 F.3d
at 101 (upholding prohibition on possession of handguns with serial numbers
obliterated); cf. Joseph Blocher, Categoricalism and Balancing in First and
Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 422 (2009) (Heller
"avoided--perhaps in part because it had little cause to
consider--categorization at the level of classification: that is, the creation
of subcategories that may warrant only intermediate protection").**

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -* Indeed,
as we noted in Part I, the present plaintiffs, whilst in the district court,
separately and specifically challenged the ban on certain semi-automatic
pistols.
** Moreover, despite the dissent's contrary assertion (at 36), a number of
states and municipalities, representing over one fourth of the Nation's
population, ban semi-automatic rifles or assault weapons, and these bans are by
no means "significantly narrower" than the District's ban. See N.Y. Penal Law §§
265.00(22), 265.02(7), 265.10 (prohibiting possession, manufacture, disposal,
[*64] and transport of assault weapons, including AR-15); Conn. Gen. Stat. §§
53-202a, 53-202c (prohibiting possession of semiautomatic firearms, including
AR-15); Cal. Penal Code §§ 12276-12282 (same); Haw. Rev. Stat. §§ 134-1, 134-4,
134-8 (banning assault pistols); Mass. Gen. Laws ch. 140, §§ 121-123 (banning
assault weapons as defined in expired federal law); Md. Code, Criminal Law, §§
4-301-4-306 (prohibiting assault pistols); N.J. Stat. Ann. §§ 2C:39-1(w),
2C:39-5 (prohibiting assault firearms, including AR-15); Legal Cmty. Against
Violence, Regulating Guns in America: An Evaluation and Comparative Analysis of
Federal, State, and Selected Local Guns Laws, 25-26 (Feb. 2008),
http://www.lcav.org/publications-briefs/reports_analyses/RegGuns.entire....
df (Boston, Cleveland, Columbus, and New York City prohibit assault weapons,
including semi-automatic rifles); Aurora, Ill., Code of Ordinances § 29-49
(prohibiting assault weapons, including AR-15); City Code of Buffalo N.Y. §
180-1 (prohibiting assault weapons, including assault rifles); Denver Colo. Mun.
Code § 38-130 (same); City of Rochester Code § 47-5 (same). In fact, the
District's prohibition is very similar to the nationwide [*65] ban on assault
weapons that was in effect from 1994 to 2004. See 18 U.S.C. §§ 921(a)(30),
922(v)(1) (prohibiting possession of semi-automatic rifles and pistols,
including AR-15).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The dissent, indulging us by assuming some level of heightened scrutiny
applies, maintains (at 37) "D.C. cannot show a compelling interest in banning
semi-automatic rifles." Why not? "[B]ecause the necessary implication of the
decision in Heller is that D.C. could not show a sufficiently compelling
interest to justify its banning semi-automatic handguns." That conclusion,
however, is neither to be found in nor inferred from Heller. As we explain
above, the Court in Heller held the District's ban on all handguns would fail
constitutional muster under any standard of scrutiny because the handgun is the
"quintessential" self-defense weapon. See 554 U.S. at 629 ("There are many
reasons that a citizen may prefer a handgun for home defense: It is easier to
store in a location that is readily accessible in an emergency; it cannot easily
be redirected or wrestled away by an attacker; it is easier to use for those
without the upper-body strength to lift and aim a long gun; it can be pointed at
a burglar with one hand [*66] while the other hand dials the police"). The same
cannot be said of semi-automatic rifles.

Finally, in criticizing our application of intermediate scrutiny to the ban
on assault weapons, our dissenting colleague says (at 33, 40) "it is difficult
to make the case that semi-automatic rifles are significantly more dangerous
than semi-automatic handguns" "because handguns can be concealed." It is not our
place, however, to determine in the first instance whether banning
semi-automatic rifles in particular would promote important law-enforcement
objectives. Our role is narrower, viz., to determine whether the District has
presented evidence sufficient to "establish the reasonable fit we require"
between the law at issue and an important or substantial governmental interest.
Fox, 492 U.S. at 480.

DISSENT BY: KAVANAUGH

DISSENT

Kavanaugh, Circuit Judge, dissenting: The Second Amendment to the
Constitution provides: "A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall
not be infringed." In District of Columbia v. Heller, the Supreme Court held
that the Second Amendment confers "an individual right to keep and bear arms."
554 U.S. 570, 595 (2008). [*67] In McDonald v. City of Chicago, the Court added
that the right to keep and bear arms is a "fundamental" constitutional right
implicit in our scheme of ordered liberty and "deeply rooted in this Nation's
history and tradition." 130 S. Ct. 3020, 3036, 3042 (2010).

In Heller, the Court ruled that the District of Columbia's ban on the
possession of handguns violated the Second Amendment. 554 U.S. at 635. In the
wake of Heller, the District of Columbia enacted a new gun law. As relevant
here, D.C. bans possession of most semi-automatic rifles and requires
registration of all guns possessed in the District of Columbia. See D.C. Code §§
7-2501.01(3A)(A)(i), 7-2502.01-.10.

In this case, we are called upon to assess those provisions of D.C.'s law
under Heller. In so doing, we are of course aware of the longstanding problem of
gun violence in the District of Columbia. In part for that reason, Heller has
engendered substantial controversy. See, e.g., J. Harvie Wilkinson III, Of Guns,
Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253 (2009); Richard A.
Posner, In Defense of Looseness, The New Republic, Aug. 27, 2008, at 32. As a
lower court, however, it is not our role to re-litigate [*68] Heller or to bend
it in any particular direction. Our sole job is to faithfully apply Heller and
the approach it set forth for analyzing gun bans and regulations.

In my judgment, both D.C.'s ban on semi-automatic rifles and its gun
registration requirement are unconstitutional under Heller.

In Heller, the Supreme Court held that handguns -- the vast majority of which
today are semi-automatic -- are constitutionally protected because they have not
traditionally been banned and are in common use by law-abiding citizens. There
is no meaningful or persuasive constitutional distinction between semi-automatic
handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic
handguns, have not traditionally been banned and are in common use by
law-abiding citizens for self-defense in the home, hunting, and other lawful
uses. Moreover, semi-automatic handguns are used in connection with violent
crimes far more than semi-automatic rifles are. It follows from Heller's
protection of semi-automatic handguns that semi-automatic rifles are also
constitutionally protected and that D.C.'s ban on them is unconstitutional. (By
contrast, fully automatic weapons, also known as machine guns, have [*69]
traditionally been banned and may continue to be banned after Heller.)1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 A
semi-automatic gun "fires only one shot with each pull of the trigger" and
"requires no manual manipulation by the operator to place another round in the
chamber after each round is fired." Staples v. United States, 511 U.S. 600, 602
n.1 (1994). A fully automatic gun -- also known as a machine gun -- "fires
repeatedly with a single pull of the trigger. That is, once its trigger is
depressed, the weapon will automatically continue to fire until its trigger is
released or the ammunition is exhausted." Id.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

D.C.'s registration requirement, which is significantly more stringent than
any other federal or state gun law in the United States, is likewise
unconstitutional. Heller and later McDonald said that regulations on the sale,
possession, or use of guns are permissible if they are within the class of
traditional, "longstanding" gun regulations in the United States. Registration
of all lawfully possessed guns -- as distinct from licensing of gun owners or
mandatory record-keeping by gun sellers -- has not traditionally been required
in the United States and even today remains highly unusual. Under Heller's
history-and [*70] tradition-based test, D.C.'s registration requirement is
therefore unconstitutional.2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2
Plaintiffs also challenge D.C.'s ban on magazines of more than 10 rounds. I
would remand that issue for further factual development in the District Court.
See infra note 20.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

It bears emphasis that Heller, while enormously significant
jurisprudentially, was not revolutionary in terms of its immediate real-world
effects on American gun regulation. Indeed, Heller largely preserved the status
quo of gun regulation in the United States. Heller established that traditional
and common gun laws in the United States remain constitutionally permissible.
The Supreme Court simply pushed back against an outlier local law -- D.C.'s
handgun ban -- that went far beyond the traditional line of gun regulation. As
Heller emphasized: "Few laws in the history of our Nation have come close to the
severe restriction of the District's" law. 554 U.S. at 629.3

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3 In that
sense, Heller was similar in its overarching practical and real-world
ramifications to recent Supreme Court decisions such as Brown v. Entertainment
Merchants Ass'n, 131 S. Ct. 2729 (2011); Graham v. Florida, 130 S. Ct. 2011
(2010); Kennedy v. Louisiana, 554 U.S. 407 (2008); [*71] and Romer v. Evans,
517 U.S. 620 (1996). Those decisions disapproved novel or uncommon state
legislative efforts to regulate beyond traditional boundaries in areas that
affected enumerated individual constitutional rights -- California's law banning
sale of violent video games, Florida's law permitting life without parole for
certain juvenile crimes, Louisiana's law permitting the death penalty for
certain rapes, and Colorado's law prohibiting gay people from receiving
protection from discrimination. Because those laws were outliers, the decisions
invalidating them did not cause major repercussions throughout the Nation.
Heller was a decision in that same vein, in terms of its immediate practical
effects in the United States. By contrast, of course, some Supreme Court
decisions interpreting the Constitution's individual rights provisions not only
are significant jurisprudentially but also have substantial practical impacts on
common federal or state practices. See, e.g., Melendez-Diaz v. Massachusetts,
129 S. Ct. 2527 (2009); Arizona v. Gant, 556 U.S. 332 (2009); United States v.
Booker, 543 U.S. 220 (2005). Heller was not a decision of that kind.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

After Heller, however, D.C. seemed not [*72] to heed the Supreme Court's
message. Instead, D.C. appeared to push the envelope again, with its new ban on
semi-automatic rifles and its broad gun registration requirement. D.C.'s public
safety motivation in enacting these laws is worthy of great respect. But the
means D.C. has chosen are again constitutionally problematic. The D.C. gun
provisions at issue here, like the ban at issue in Heller, are outliers that are
not traditional or common in the United States. As with D.C.'s handgun ban,
therefore, holding these D.C. laws unconstitutional would not lead to nationwide
tumult. Rather, such a holding would maintain the balance historically and
traditionally struck in the United States between public safety and the
individual right to keep arms -- a history and tradition that Heller affirmed
and adopted as determining the scope of the Second Amendment right.

I

A key threshold question in this case concerns the constitutional test we
should employ to assess the challenged provisions of the D.C. gun law. The
Heller Court held that the Second Amendment guarantees an individual right to
possess guns. But the Court emphasized that the Second Amendment does not
protect "a right to keep and [*73] carry any weapon whatsoever in any manner
whatsoever and for whatever purpose." District of Columbia v. Heller, 554 U.S.
570, 626 (2008). "Like most rights, the right secured by the Second Amendment is
not unlimited." Id.

In light of that limiting language in Heller, constitutional analysis of
D.C.'s new law raises two main questions. Under Heller, what kinds of firearms
may the government ban? And what kinds of regulations may the government impose
on the sale, possession, or use of firearms?

Put in simple terms, the issue with respect to what test to apply to gun bans
and regulations is this: Are gun bans and regulations to be analyzed based on
the Second Amendment's text, history, and tradition (as well as by appropriate
analogues thereto when dealing with modern weapons and new circumstances, see
infra Part I.B)? Or may judges re-calibrate the scope of the Second Amendment
right based on judicial assessment of whether the law advances a sufficiently
compelling or important government interest to override the individual right?
And if the latter, is the proper test strict scrutiny or intermediate scrutiny?

As I read Heller, the Supreme Court was not silent about the answers to those
[*74] questions. Rather, the Court set forth fairly precise guidance to govern
those issues going forward.

A

In my view, Heller and McDonald leave little doubt that courts are to assess
gun bans and regulations based on text, history, and tradition, not by a
balancing test such as strict or intermediate scrutiny. To be sure, the Court
never said something as succinct as "Courts should not apply strict or
intermediate scrutiny but should instead look to text, history, and tradition to
define the scope of the right and assess gun bans and regulations." But that is
the clear message I take away from the Court's holdings and reasoning in the two
cases.

As to bans on categories of guns, the Heller Court stated that the government
may ban classes of guns that have been banned in our "historical tradition" --
namely, guns that are "dangerous and unusual" and thus are not "the sorts of
lawful weapons that" citizens typically "possess[] at home." 554 U.S. at 627.
The Court said that "dangerous and unusual weapons" are equivalent to those
weapons not "in common use," as the latter phrase was used in United States v.
Miller, 307 U.S. 174, 179 (1939). Heller, 554 U.S. at 627. Thus, the "Second
Amendment [*75] does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes, such as short-barreled shotguns" or
automatic "M-16 rifles and the like." Id. at 625, 627. That interpretation, the
Court explained, "accords with the historical understanding of the scope of the
right." Id. at 625. "Constitutional rights," the Court said, "are enshrined with
the scope they were understood to have when the people adopted them, whether or
not future legislatures or (yes) even future judges think that scope too broad."
Id. at 634-35. The scope of the right is thus determined by "historical
justifications." Id. at 635. And tradition (that is, post-ratification history)
also matters because "examination of a variety of legal and other sources to
determine the public understanding of a legal text in the period after its
enactment or ratification" is a "critical tool of constitutional
interpretation." Id. at 605 (emphasis omitted).

Because the D.C. law at issue in Heller banned handguns (including
semi-automatic handguns), which have not traditionally been banned and are in
common use by law-abiding citizens, the Court found that the D.C. ban on handgun
possession violated [*76] the Second Amendment. Stressing the D.C. law's
inconsistency with our "historical tradition," id. at 627, the Court stated that
"[f]ew laws in the history of our Nation have come close to the severe
restriction of the District's" law, id. at 629.

As to regulations on the sale, possession, or use of guns, Heller similarly
said the government may continue to impose regulations that are traditional,
"longstanding" regulations in the United States. Id. at 626-27. In McDonald, the
Court reiterated that "longstanding regulatory measures" are permissible.
McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (controlling opinion
of Alito, J.). Importantly, the Heller Court listed several examples of such
longstanding (and therefore constitutionally permissible) regulations, such as
laws against concealed carry and laws prohibiting possession of guns by felons.
554 U.S. at 626. The Court stated that analysis of whether other gun regulations
are permissible must be based on their "historical justifications." Id. at 635.4

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4 The Court
in Heller stated as follows:

Like most rights, the right secured by the Second Amendment is not
unlimited. From Blackstone through the 19th-century cases,
commentators [*77] and courts routinely explained that the right was
not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. For example, the majority of the
19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or
state analogues. Although we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amendment, nothing in
our opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep
and carry arms. Miller said, as we have explained, that the sorts of
weapons protected were those "in common use at the time." We think
that limitation is fairly supported by the historical tradition of
prohibiting the carrying of "dangerous and unusual weapons."

554 U.S. at 626-27 (citations and footnote omitted). The Court in McDonald
reiterated:
As [*78] evidence that the Fourteenth Amendment has not
historically been understood to restrict the authority of the States
to regulate firearms, municipal respondents and supporting amici cite
a variety of state and local firearms laws that courts have upheld.
But what is most striking about their research is the paucity of
precedent sustaining bans comparable to those at issue here and in
Heller. . . . We made it clear in Heller that our holding did not cast
doubt on such longstanding regulatory measures as "prohibitions on the
possession of firearms by felons and the mentally ill," "laws
forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms."

130 S. Ct. at 3047 (controlling opinion of Alito, J.) (quoting Heller, 554 U.S.
at 626-27).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In disapproving D.C.'s ban on handguns, in approving a ban on machine guns,
and in approving longstanding regulations such as concealed-carry and
felon-in-possession laws, Heller established that the scope of the Second
Amendment right -- and thus the constitutionality of gun bans and regulations --
is determined by reference to text, history, [*79] and tradition. As to the ban
on handguns, for example, the Supreme Court in Heller never asked whether the
law was narrowly tailored to serve a compelling government interest (strict
scrutiny) or substantially related to an important government interest
(intermediate scrutiny). If the Supreme Court had meant to adopt one of those
tests, it could have said so in Heller and measured D.C.'s handgun ban against
the relevant standard. But the Court did not do so; it instead determined that
handguns had not traditionally been banned and were in common use -- and thus
that D.C.'s handgun ban was unconstitutional.

Moreover, in order for the Court to prospectively approve the
constitutionality of several kinds of gun laws -- such as machine gun bans,
concealed-carry laws, and felon-in-possession laws -- the Court obviously had to
employ some test. Yet the Court made no mention of strict or intermediate
scrutiny when approving such laws. Rather, the test the Court relied on - as it
indicated by using terms such as "historical tradition" and "longstanding" and
"historical justifications" -- was one of text, history, and tradition. Id. at
626-27, 635; see Eugene Volokh, Implementing the Right to Keep [*80] and Bear
Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L.
Rev. 1443, 1463 (2009) ("Absent [from Heller] is any inquiry into whether the
law is necessary to serve a compelling government interest in preventing death
and crime, though handgun ban proponents did indeed argue that such bans are
necessary to serve those interests and that no less restrictive alternative
would do the job."); Joseph Blocher, Categoricalism and Balancing in First and
Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 380 (2009) ("Rather than
adopting one of the First Amendment's many Frankfurter-inspired balancing
approaches, the majority endorsed a categorical test under which some types of
'Arms' and arms-usage are protected absolutely from bans and some types of
'Arms' and people are excluded entirely from constitutional coverage."); id. at
405 (Heller "neither requires nor permits any balancing beyond that accomplished
by the Framers themselves.").5

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5 The
Court's failure to employ strict or intermediate scrutiny appears to have been
quite intentional and well-considered. Cf. Tr. of Oral Arg. at 44, Heller, 554
U.S. 570 (No. 07-290) (Chief Justice Roberts: "Well, these various [*81]
phrases under the different standards that are proposed, 'compelling interest,'
'significant interest,' 'narrowly tailored,' none of them appear in the
Constitution . . . . I mean, these standards that apply in the First Amendment
just kind of developed over the years as sort of baggage that the First
Amendment picked up.").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

B

Before addressing the majority opinion's contrary analysis of Heller and
McDonald, it is important to underscore two points regarding Heller's focus on
text, history, and tradition.

First, just because gun regulations are assessed by reference to history and
tradition does not mean that governments lack flexibility or power to enact gun
regulations. Indeed, governments appear to have more flexibility and power to
impose gun regulations under a test based on text, history, and tradition than
they would under strict scrutiny. After all, history and tradition show that a
variety of gun regulations have co-existed with the Second Amendment right and
are consistent with that right, as the Court said in Heller.6 By contrast, if
courts applied strict scrutiny, then presumably very few gun regulations would
be upheld. Indeed, Justice Breyer made this point in his dissent [*82] in
Heller when he noted that the majority opinion had listed certain permissible
gun regulations "whose constitutionality under a strict-scrutiny standard would
be far from clear." 554 U.S. at 688 (Breyer, J., dissenting).7

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -6 It is not
uncommon for courts to look to post-ratification history and tradition to inform
the interpretation of a constitutional provision. For example, when interpreting
the scope of the President's Article II power, the Court has relied on such
history and tradition. See Dames & Moore v. Regan, 453 U.S. 654, 679 n.8 (1981).
So, too, the Court looked to traditional practice when analyzing an
Establishment Clause issue related to legislative prayer. See Marsh v. Chambers,
463 U.S. 783, 786-92 (1983). That said, post-ratification adoption or acceptance
of laws that are inconsistent with the original meaning of the constitutional
text obviously cannot overcome or alter that text. The Court in Marbury found
unconstitutional a law passed by the First Congress. See Marbury v. Madison, 5
U.S. 137 (1803). The practice of separate but equal was inconsistent with and
repugnant to the text and original meaning of the Equal Protection Clause. See
Brown v. Bd. of Education, 347 U.S. 483 (1954); [*83] Strauder v. West Virginia
, 100 U.S. 303 (1880). The existence of post-ratification examples of
congressional exclusion of elected members did not persuade the Court in Powell
v. McCormack: "That an unconstitutional action has been taken before surely does
not render that same action any less unconstitutional at a later date." 395 U.S.
486, 546-47 (1969).
7 The fact that fewer gun laws might pass muster under strict scrutiny than
under a history- and tradition-based approach is no doubt why the plaintiffs in
Heller and here have advocated strict scrutiny.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

So the major difference between applying the Heller history- and
tradition-based approach and applying one of the forms of scrutiny is not
necessarily the number of gun regulations that will pass muster. Instead, it is
that the Heller test will be more determinate and "much less subjective" because
"it depends upon a body of evidence susceptible of reasoned analysis rather than
a variety of vague ethico-political First Principles whose combined conclusion
can be found to point in any direction the judges favor." McDonald, 130 S. Ct.
at 3058 (Scalia, J., concurring).

To be sure, analyzing the history and tradition of gun laws in the United
[*84] States does not always yield easy answers. Justice Scalia, the author of
the Heller majority opinion, thus acknowledged in his concurrence in McDonald:
"No fundamental right -- not even the First Amendment -- is absolute. The
traditional restrictions go to show the scope of the right, not its lack of
fundamental character. . . . Historical analysis can be difficult; it sometimes
requires resolving threshold questions, and making nuanced judgments about which
evidence to consult and how to interpret it. I will stipulate to that." Id. at
3056-57. That said, the range of potential answers will be far more focused
under an approach based on text, history, and tradition than under an
interest-balancing test such as intermediate scrutiny. See id. at 3057 n.9.

Second, when legislatures seek to address new weapons that have not
traditionally existed or to impose new gun regulations because of conditions
that have not traditionally existed, there obviously will not be a history or
tradition of banning such weapons or imposing such regulations. That does not
mean the Second Amendment does not apply to those weapons or in those
circumstances. Nor does it mean that the government is powerless to [*85]
address those new weapons or modern circumstances. Rather, in such cases, the
proper interpretive approach is to reason by analogy from history and tradition.
See Parker v. District of Columbia, 478 F.3d 370, 398 (D.C. Cir. 2007) ("[J]ust
as the First Amendment free speech clause covers modern communication devices
unknown to the founding generation, e.g., radio and television, and the Fourth
Amendment protects telephonic conversation from a 'search,' the Second Amendment
protects the possession of the modern-day equivalents of the colonial pistol.")
(emphasis added), aff'd sub nom. Heller, 554 U.S. 570; Tr. of Oral Arg. at 77,
Heller, 554 U.S. 570 (No. 07-290) (Chief Justice Roberts: "[Y]ou would define
'reasonable' in light of the restrictions that existed at the time the amendment
was adopted. . . . [Y]ou can't take it into the marketplace was one restriction.
So that would be -- we are talking about lineal descendents of the arms but
presumably there are lineal descendents of the restrictions as well."); cf.
Kyllo v. United States, 533 U.S. 27, 31-35 (2001) (applying traditional Fourth
Amendment standards to novel thermal imaging technology); California v. Ciraolo,
476 U.S. 207, 213 (1986) [*86] (allowing government to view property from
airplanes based on common-law principle that police could look at property when
passing by homes on public thoroughfares).

The Constitution is an enduring document, and its principles were designed
to, and do, apply to modern conditions and developments. The constitutional
principles do not change (absent amendment), but the relevant principles must be
faithfully applied not only to circumstances as they existed in 1787, 1791, and
1868, for example, but also to modern situations that were unknown to the
Constitution's Framers. To be sure, applying constitutional principles to novel
modern conditions can be difficult and leave close questions at the margins. But
that is hardly unique to the Second Amendment. It is an essential component of
judicial decisionmaking under our enduring Constitution.

C

The majority opinion here applies intermediate scrutiny and contends that
intermediate scrutiny is consistent with Heller and McDonald. The majority
opinion employs history and tradition only as a threshold screen to determine
whether the law in question implicates the individual right; if so, the majority
opinion then subjects the individual right to [*87] balancing under the
intermediate scrutiny test. As explained above, I disagree with that approach. I
read Heller and McDonald as setting forth a test based wholly on text, history,
and tradition. Deeper examination of the two Supreme Court opinions -- and, in
particular, how the Court's opinions responded to the dissents in the two cases
-- buttresses my conclusion.

Turning first to Heller: The back and forth between the Heller majority
opinion and Justice Breyer's dissent underscores that the proper Second
Amendment test focuses on text, history, and tradition. In his dissent, Justice
Breyer suggested that the Court should follow the lead of certain First
Amendment cases, among others, that had applied a form of intermediate-scrutiny
interest balancing:

The fact that important interests lie on both sides of the
constitutional equation suggests that review of gun-control regulation
is not a context in which a court should effectively presume either
constitutionality (as in rational-basis review) or unconstitutionality
(as in strict scrutiny). Rather, "where a law significantly implicates
competing constitutionally protected interests in complex ways," the
Court generally asks whether the [*88] statute burdens a protected
interest in a way or to an extent that is out of proportion to the
statute's salutary effects upon other important governmental
interests. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377,
402 (2000) (Breyer, J., concurring). . . .

In particular this Court, in First Amendment cases applying
intermediate scrutiny, has said that our "sole obligation" in
reviewing a legislature's "predictive judgments" is "to assure that,
in formulating its judgments," the legislature "has drawn reasonable
inferences based on substantial evidence." Turner, 520 U.S., at 195
(internal quotation marks omitted). And judges, looking at the
evidence before us, should agree that the District legislature's
predictive judgments satisfy that legal standard. . . .

There is no cause here to depart from the standard set forth in
Turner, for the District's decision represents the kind of empirically
based judgment that legislatures, not courts, are best suited to make.
See Nixon, 528 U.S., at 402 (Breyer, J., concurring). . . .

The upshot is that the District's objectives are compelling; its
predictive judgments as to its law's tendency to achieve those
objectives are adequately supported; [*89] the law does impose a
burden upon any self-defense interest that the Amendment seeks to
secure; and there is no clear less restrictive alternative.

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

Justice Breyer expressly rejected strict scrutiny and rational basis review.
Instead, he explicitly referred to intermediate scrutiny and relied on cases
such as Turner Broadcasting that had applied intermediate scrutiny. See Turner
Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189-225 (1997). And he discussed
the strength of the government's interest and the fit between the law and those
interests, as the Court does when applying heightened scrutiny. It is thus
evident that Justice Breyer's Heller dissent advocated a form of intermediate
scrutiny.8

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -8 The
Heller majority stated that Justice Breyer was not proposing any of the
traditional forms of scrutiny "explicitly at least." 554 U.S. at 634 (emphasis
added). Justice Breyer ruled out strict scrutiny and rational basis review and
relied heavily on Turner Broadcasting, which had applied a form of intermediate
scrutiny. But he was not explicit about the label for his test, as the Heller
majority opinion noted. In that regard, [*90] it bears mention that strict
scrutiny and intermediate scrutiny can take on different forms in different
contexts that are sometimes colloquially referred to as, for example,
strict-scrutiny-light or intermediate-scrutiny-plus or the like. How strong the
government interest must be, how directly the law must advance that interest,
how reasonable the alternatives must be -- those questions are not always framed
with precision in two clearly delineated categories, as opposed to points on a
sliding scale of heightened scrutiny approaches. See, e.g., Nixon v. Shrink
Missouri Government PAC, 528 U.S. 377, 387-88 (2000) ("a contribution limit
involving significant interference with associational rights could survive if
the Government demonstrated that contribution regulation was closely drawn to
match a sufficiently important interest") (citations and internal quotation
marks omitted); United States v. Virginia, 518 U.S. 515, 531, 533 (1996)
(referring to "skeptical scrutiny" and "heightened review" of gender-based law).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The Court responded to Justice Breyer by rejecting his "judge-empowering
'interest-balancing inquiry' that 'asks whether the statute burdens a protected
interest in a way [*91] or to an extent that is out of proportion to the
statute's salutary effects upon other important governmental interests.'" Heller
, 554 U.S. at 634 (quoting id. at 689-90 (Breyer, J., dissenting)). The Court
stated rather emphatically: "We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding 'interest-balancing'
approach. The very enumeration of the right takes out of the hands of government
-- even the Third Branch of Government -- the power to decide on a case-by-case
basis whether the right is really worth insisting upon. A constitutional
guarantee subject to future judges' assessments of its usefulness is no
constitutional guarantee at all." Id.

In rejecting a judicial interest-balancing approach, the Court explained that
the Second Amendment "is the very product of an interest balancing by the
people" that judges should not "now conduct for them anew." Id. at 635. The
Court added that judges may not alter the scope of the Amendment because
"[c]onstitutional rights are enshrined with the scope they were understood to
have when the people adopted them, whether or not future legislatures or (yes)
even future judges think that scope [*92] too broad." Id. at 634-35. The Court
emphasized that the scope of the right was determined by "historical
justifications." Id. at 635. And the Court stated that tradition (that is,
post-ratification history) matters because "examination of a variety of legal
and other sources to determine the public understanding of a legal text in the
period after its enactment or ratification" is a "critical tool of
constitutional interpretation." Id. at 605 (emphasis omitted).

To be sure, the Court noted in passing that D.C.'s handgun ban would fail
under any level of heightened scrutiny or review the Court applied. Id. at
628-29. But that was more of a gilding-the-lily observation about the extreme
nature of D.C's law -- and appears to have been a pointed comment that the
dissenters should have found D.C.'s law unconstitutional even under their own
suggested balancing approach -- than a statement that courts may or should apply
strict or intermediate scrutiny in Second Amendment cases. We know as much
because the Court expressly dismissed Justice Breyer's Turner Broadcasting
intermediate scrutiny approach and went on to demonstrate how courts should
consider Second Amendment bans and regulations -- [*93] by analysis of text,
history, and tradition. Id. at 626-27, 634-35.

Is it possible, however, that the Heller Court was ruling out intermediate
scrutiny but leaving open the possibility that strict scrutiny might apply? That
seems highly unlikely, for reasons Justice Breyer himself pointed out in
dissent:

Respondent proposes that the Court adopt a "strict scrutiny" test,
which would require reviewing with care each gun law to determine
whether it is "narrowly tailored to achieve a compelling governmental
interest." Abrams v. Johnson, 521 U.S. 74, 82 (1997); see Brief for
Respondent 54-62. But the majority implicitly, and appropriately,
rejects that suggestion by broadly approving a set of laws --
prohibitions on concealed weapons, forfeiture by criminals of the
Second Amendment right, prohibitions on firearms in certain locales,
and governmental regulation of commercial firearm sales -- whose
constitutionality under a strict-scrutiny standard would be far from
clear.

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

Justice Breyer thus perceived that the Court's history-and tradition-based
approach would likely permit governments to enact more gun laws and regulations
than a strict scrutiny approach would [*94] allow. History and tradition
establish that several gun regulations have co-existed with the Second Amendment
right and are consistent with that right, as the Court determined in Heller. If
courts applied strict scrutiny, however, very few gun regulations would
presumably be constitutional.

Even more to the point, as Justice Breyer also noted, the Court in Heller
affirmatively approved a slew of gun laws -- machine gun bans, concealed-carry
laws, felon-in-possession laws, and the like -- without analyzing them under
strict scrutiny. The Court approved them based on a history- and tradition-based
test, not strict scrutiny. Indeed, these laws might not have passed muster under
a strict scrutiny analysis.

The Court's later decision in McDonald underscores that text, history, and
tradition guide analysis of gun laws and regulations. There, the Court again
precluded the use of balancing tests; furthermore, it expressly rejected
judicial assessment of "the costs and benefits of firearms restrictions" and
stated that courts applying the Second Amendment thus would not have to make
"difficult empirical judgments" about the efficacy of particular gun
regulations. 130 S. Ct. at 3050 (controlling [*95] opinion of Alito, J.).

That language from McDonald is critically important because strict and
intermediate scrutiny obviously require assessment of the "costs and benefits"
of government regulations and entail "difficult empirical judgments" about their
efficacy -- precisely what McDonald barred. McDonald's rejection of such
inquiries, which was even more direct than Heller's, is flatly incompatible with
a strict or intermediate scrutiny approach to gun regulations.

That conclusion is fortified by a careful examination of the back and forth
in McDonald between Justice Alito's controlling opinion and Justice Breyer's
dissent.

In his McDonald dissent, Justice Breyer explained at some length that he was
concerned about the practical ramifications of Heller and McDonald because
judges would have great difficulty assessing gun regulations under heightened
scrutiny (whether it might be called strict or intermediate or something else on
that heightened scrutiny spectrum). He stated that determining the
constitutionality of a gun regulation would "almost always require the weighing
of the constitutional right to bear arms against the primary concern of every
government -- a concern for the safety [*96] and indeed the lives of its
citizens." 130 S. Ct. at 3126 (Breyer, J., dissenting) (internal quotation marks
omitted). "Given the competing interests, courts will have to try to answer
empirical questions of a particularly difficult kind." Id. He listed a variety
of possible gun laws that would raise such difficult empirical questions,
including laws regulating semi-automatic rifles and laws imposing registration
requirements. Id. Justice Breyer asserted that assessing the constitutionality
of those laws under heightened scrutiny would require difficult judicial
evaluations of the effectiveness of particular gun laws. Justice Breyer asked:
"How can the Court assess the strength of the government's regulatory interests
without addressing issues of empirical fact? How can the Court determine if a
regulation is appropriately tailored without considering its impact? And how can
the Court determine if there are less restrictive alternatives without
considering what will happen if those alternatives are implemented?" Id. at
3127.

The questions identified by Justice Breyer are of course the kinds of
questions that courts ask when applying heightened scrutiny. So how did the
Court respond to [*97] Justice Breyer? The Court simply rejected the premise of
Justice Breyer's criticism. Those kinds of difficult assessments would not need
to be made, the Court said, because courts would not be applying that kind of
test or scrutiny: "Justice Breyer is incorrect that incorporation will require
judges to assess the costs and benefits of firearms restrictions and thus to
make difficult empirical judgments in an area in which they lack expertise. As
we have noted, while his opinion in Heller recommended an interest-balancing
test, the Court specifically rejected that suggestion. 'The very enumeration of
the right takes out of the hands of government -- even the Third Branch of
Government -- the power to decide on a case-by-case basis whether the right is
really worth insisting upon.'" Id. at 3050 (controlling opinion of Alito, J.)
(citation omitted) (quoting Heller, 554 U.S. at 684). The Court also reiterated
that "longstanding" gun regulations were constitutionally permissible. Id. at
3047.

The McDonald Court's response to Justice Breyer is quite telling for our
purposes: The Court dismissed the suggestion that courts in Second Amendment
cases would need to assess the strength of the government's [*98] regulatory
interests, or determine whether the regulation was appropriately tailored, or
consider the alternatives. In other words, the Court declined to conduct the
kinds of inquiries that would need to be conducted under a form of strict or
intermediate scrutiny.

But Justice Breyer then asked: From where did the Court derive the exceptions
the Court listed in Heller and McDonald allowing laws that ban concealed carry,
possession by a felon, and the like? Justice Breyer suggested that the Court
"simply invented rules that sound sensible." Id. at 3127 (Breyer, J.,
dissenting). But the Court responded that, no, it was not inventing rules but
rather was holding that the scope of the right was determined by text, history,
and tradition -- and that "longstanding regulatory measures" were therefore
permissible. Id. at 3047 (controlling opinion of Alito, J.). As the Court had
explained in Heller, the scope of the right was determined by text, history, and
tradition, and such longstanding laws were within the historical understanding
of the scope of the right. See also McDonald, 130 S. Ct. at 3050, 3056 (Scalia,
J., concurring) (Court's approach "makes the traditions of our people
paramount"; [*99] "traditional restrictions" on the right are permissible).

D

Although Heller and McDonald rejected judicial interest balancing, the
majority opinion here applies intermediate scrutiny. The majority opinion does
so because it says that heightened scrutiny tests are not actually balancing
tests and thus were not precluded by the Supreme Court's rejection of balancing
tests. I disagree with the majority opinion's attempt to distinguish Heller and
McDonald in this way.

To begin with, as explained above, the Court in my view went further in
Heller and McDonald than just rejecting the concept of balancing tests. The
Court emphasized the role of history and tradition; it rejected not only
balancing but also examination of costs and benefits; it disclaimed the need for
difficult empirical judgments; it specifically rejected Justice Breyer's
approach, which was a form of intermediate scrutiny as applied in Turner
Broadcasting; and it prospectively blessed certain laws for reasons that could
be (and were) explained only by history and tradition, not by analysis under a
heightened scrutiny test.

It is ironic, moreover, that Justice Breyer's dissent explicitly advocated an
approach based on Turner [*100] Broadcasting; that the Heller majority flatly
rejected that Turner Broadcasting-based approach; and that the majority opinion
here nonetheless turns around and relies expressly and repeatedly on Turner
Broadcasting. See Heller, 554 U.S. at 690, 704-05 (Breyer, J., dissenting)
(citing Turner Broadcasting, 520 U.S. 180); Heller, 554 U.S. at 634-35; Maj. Op.
at 22-23, 26-28 (citing Turner Broadcasting, 520 U.S. 180; Turner Broadcasting
System, Inc. v. FCC, 512 U.S. 622 (1994)).

In addition, the premise of the majority opinion's more general point -- that
Heller's rejection of balancing tests does not mean it rejected strict and
intermediate scrutiny -- is incorrect. Strict and intermediate scrutiny are
balancing tests and thus are necessarily encompassed by Heller's more general
rejection of balancing.

The heightened scrutiny approach largely took hold as a First Amendment
principle -- articulated most prominently by Justices Frankfurter and Harlan --
to uphold laws that infringed free speech rights but were deemed to be justified
by an overriding public purpose, often in cases involving speech by Communists.
See Konigsberg v. State Bar of California, 366 U.S. 36, 49-52 (1961); Barenblatt
v. United States, 360 U.S. 109, 126-27, 134 (1959); [*101] Sweezy v. New
Hampshire, 354 U.S. 234, 265-67 (1957) (Frankfurter, J., concurring in
judgment). From the beginning, it was recognized that those tests were balancing
tests. In Barenblatt, for example, one of the early cases applying a form of
what we now call strict scrutiny, the Court stated that First Amendment rights
may be overcome based on "a balancing by the courts of the competing private and
public interests at stake in the particular circumstances shown," and that the
"subordinating interest of the State must be compelling in order to overcome the
individual constitutional rights at stake." 360 U.S. at 126-27 (internal
quotation marks omitted). In Konigsberg, the Court similarly explained that laws
limiting speech could be justified by "valid governmental interests, a
prerequisite to constitutionality which has necessarily involved a weighing of
the governmental interest involved." 366 U.S. at 50-51. Writing for the Court,
Justice Harlan noted that the test required an "appropriate weighing of the
respective interests involved." Id. at 51. In dissent, Justice Black objected to
a "doctrine that permits constitutionally protected rights to be 'balanced' away
whenever a majority [*102] of this Court thinks that a State might have
interest sufficient to justify abridgment of those freedoms." Id. at 61 (Black,
J., dissenting).

As in their original formulations, the successor strict and intermediate
scrutiny tests applied today remain quintessential balancing inquiries that
focus ultimately on whether a particular government interest is sufficiently
compelling or important to justify an infringement on the individual right in
question. Cf. Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S.
727, 740-41 (1996) (the Court's application of varying levels of scrutiny is a
process of "restat[ing] and refin[ing] . . . basic First Amendment principles,
adopting them more particularly to the balance of competing interests and the
special circumstances of each field of application"); Employment Div., Dep't of
Human Res. of Or. v. Smith, 494 U.S. 872, 889 n.5 (1990) (applying strict
scrutiny to general laws that burden religious practice would require judges to
"regularly balance against the importance of general laws the significance of
religious practice"); Mario L. Barnes & Erwin Chemerinsky, The Once and Future
Equal Protection Doctrine?, 43 Conn. L. Rev. 1059, 1080 (2011) [*103] ("The
levels of scrutiny are essentially balancing tests -- each test determines how
the weights on the scale are to be arranged. Strict scrutiny puts the weights
strongly against the government and rational basis places the weights in its
favor."); Alan Brownstein, The Religion Clauses as Mutually Reinforcing Mandates
, 32 Cardozo L. Rev. 1701, 1721-22 (2011) (though strict scrutiny is not as "ad
hoc, subjective and indeterminate" as a "multi-factor balancing test" or
"intermediate level scrutiny," even under strict scrutiny "there will be some
cases, where the state's interest is authentic and substantial, which will
require balancing"); Stephen A. Siegel, The Origin of the Compelling State
Interest Test and Strict Scrutiny, 48 Am. J. Legal Hist. 355, 375 (2006)
("compelling state interest doctrine" is a "balancing test") (internal quotation
marks omitted); Darrell A.H. Miller, Retail Rebellion and the Second Amendment,
86 Ind. L.J. 939, 967 (2011) ("both Heller and McDonald indicate strongly that
standards of scrutiny are just shorthand for unguided interest balancing").

To be sure, application of the strict and intermediate scrutiny tests yields
categorical results and rules over [*104] time. And strict scrutiny in
particular places a heavy thumb on the scale in favor of the individual right in
question, meaning the balance is often struck against the government. But the
tests are undoubtedly balancing tests that require a contemporary judicial
assessment of the strength of the asserted government interests in imposing a
particular regulation. If that interest is deemed sufficiently strong, and the
law is deemed to be appropriately tailored to serving that interest given the
potential alternatives, then the law generally overcomes the individual right.
That is a form of interest balancing. It is true that strict and intermediate
scrutiny come in a variety of flavors and are not always applied in the exact
same way in all settings (as illustrated by Justice Breyer's extensive
explanation in his Heller dissent). But they always involve at least some
assessment of whether the law in question is sufficiently important to justify
infringement on an individual constitutional right. That's balancing. And Heller
and McDonald rejected the use of balancing tests -- including, therefore, strict
or intermediate scrutiny -- in fleshing out the scope of the Second Amendment
[*105] right.

Of course, as noted above, Heller and McDonald didn't just reject interest
balancing. The Court went much further by expressly rejecting Justice Breyer's
intermediate scrutiny approach, disclaiming cost-benefit analysis, and denying
the need for empirical inquiry. By doing so, the Court made clear, in my view,
that strict and intermediate scrutiny are inappropriate.

In short, I do not see how Heller and McDonald can be squared with
application of strict or intermediate scrutiny to D.C.'s gun laws. The majority
opinion here refers to the levels of scrutiny as "familiar." Maj. Op. at 40. As
one commentator has stated, however, "the search for the familiar may be leading
courts and commentators astray: The central disagreement in Heller was a debate
not about strict scrutiny and rational basis review but rather about
categoricalism and balancing." Blocher, Categoricalism and Balancing in First
and Second Amendment Analysis, 84 N.Y.U. L. Rev. at 379.9 That disagreement in
Heller was resolved in favor of categoricalism -- with the categories defined by
text, history, and tradition -- and against balancing tests such as strict or
intermediate scrutiny or reasonableness.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9 I
recognize that [*106] some other courts of appeals have adopted approaches
similar to the majority opinion's approach here. Based on my reading of Heller
and McDonald, I respectfully have come to a different conclusion.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

E

It might be objected that the Supreme Court could not have intended a test
cabined by text, history, and tradition (and analogues thereto when addressing
modern weapons or conditions) given the prevalence of strict and intermediate
scrutiny tests in the Court's jurisprudence regarding some other constitutional
rights. I disagree with that suggestion and think it is based on too narrow a
view of the Court's overall constitutional jurisprudence.

Taking a step back, we know the Supreme Court has developed an array of
rules, tests, and standards specific to each right. Particularly for a lower
court, it is difficult therefore to apply an overarching interpretive approach
to questions of constitutional law that are necessarily guided by decades of
precedent interpreting different provisions of the Constitution under different
methodologies. Some individual constitutional rights are analyzed under
heightened (strict or intermediate) scrutiny, some under categorical tests
divined from text, history, [*107] and tradition, some by reasonableness tests,
some in other ways.

Strict and intermediate scrutiny today are primarily used in substantive due
process and equal protection cases, and for certain aspects of First Amendment
free speech doctrine. Strict and intermediate scrutiny tests are not employed in
the Court's interpretation and application of many other individual rights
provisions of the Constitution.

For example, the Court has not typically invoked strict or intermediate
scrutiny to analyze the Jury Trial Clause, the Establishment Clause, the
Self-Incrimination Clause, the Confrontation Clause, the Cruel and Unusual
Punishments Clause, or the Habeas Corpus Clause, to name a few. See, e.g.,
Kennedy v. Louisiana, 554 U.S. 407 (2008); Boumediene v. Bush, 553 U.S. 723
(2008); United States v. Booker, 543 U.S. 220 (2005); Lee v. Weisman, 505 U.S.
577 (1992); Lefkowitz v. Turley, 414 U.S. 70 (1973). In a recent landmark case
concerning the Confrontation Clause, the Court stated in language quite similar
to Heller's that by "replacing categorical constitutional guarantees with
open-ended balancing tests, we do violence to their design. Vague standards are
manipulable." Crawford v. Washington, 541 U.S. 36, 67-68 (2004).

Even [*108] in the First Amendment case law, which the majority opinion here
looks to for guidance, the Court has not used strict or intermediate scrutiny
when considering bans on categories of speech. In United States v. Stevens, the
Court echoed Heller: "The First Amendment's guarantee of free speech does not
extend only to categories of speech that survive an ad hoc balancing of relative
social costs and benefits. The First Amendment itself reflects a judgment by the
American people that the benefits of its restrictions on the Government outweigh
the costs. Our Constitution forecloses any attempt to revise that judgment
simply on the basis that some speech is not worth it. The Constitution is not a
document 'prescribing limits, and declaring that those limits may be passed at
pleasure.'" 130 S. Ct. 1577, 1585 (2010) (quoting Marbury v. Madison, 5 U.S.
137, 178 (1803)); see also Simon & Schuster, Inc. v. Members of the N.Y. State
Crime Victims Bd., 502 U.S. 105, 125 (1991) (Kennedy, J., concurring) (When the
"regulated content has the full protection of the First Amendment," that "is
itself a full and sufficient reason for holding the statute unconstitutional. In
my view it is both unnecessary [*109] and incorrect to ask whether the State
can show that the statute is necessary to serve a compelling state interest and
is narrowly drawn to achieve that end.") (internal quotation marks omitted).

In short, it would hardly have been unusual or unthinkable for the Supreme
Court to set forth a Second Amendment test based on text, history, and tradition
-- rather than a heightened scrutiny approach. (Indeed, in Heller, the Supreme
Court affirmed this Court's decision, which similarly declined to adopt a strict
or intermediate scrutiny test.) Therefore, I would take the Supreme Court's
words in Heller and McDonald at face value and not superimpose on those opinions
a strict or intermediate scrutiny test that the Court declined to apply.

F

To sum up so far: Because the Supreme Court in Heller did not adopt a strict
or intermediate scrutiny test and rejected judicial interest balancing, I must
disagree with the majority opinion's decision in this case to adopt the
intermediate scrutiny balancing test. In my view, it is a severe stretch to read
Heller, as the majority opinion does, as consistent with an intermediate
scrutiny balancing test. The Supreme Court struck down D.C.'s handgun ban
because [*110] handguns have not traditionally been banned and are in common
use by law-abiding citizens, not because the ban failed to serve an important
government interest and thus failed the intermediate scrutiny test. And the
Court endorsed certain gun laws because they were rooted in history and
tradition, not because they passed the intermediate scrutiny test.

One final aside about the appropriate test to apply: Even if it were
appropriate to apply one of the levels of scrutiny after Heller, surely it would
be strict scrutiny rather than the intermediate scrutiny test adopted by the
majority opinion here. Heller ruled that the right to possess guns is a core
enumerated constitutional right and rejected Justice Breyer's suggested Turner
Broadcasting intermediate scrutiny approach. And McDonald later held that "the
right to keep and bear arms" is "among those fundamental rights necessary to our
system of ordered liberty." 130 S. Ct. at 3042.

For those fundamental substantive constitutional rights that the Court has
subjected to a balancing test and analyzed under one of the levels of scrutiny
-- for example, the First Amendment freedom of speech and the rights protected
by substantive due process [*111] -- the Court has generally employed strict
scrutiny to assess direct infringements on the right. See, e.g., Citizens United
v. FEC, 130 S. Ct. 876, 898 (2010) (First Amendment strict scrutiny in context
of infringement on "political speech"); Boy Scouts of America v. Dale, 530 U.S.
640, 648 (2000) (First Amendment strict scrutiny in context of infringement on
freedom of association); United States v. Playboy Entertainment Group, Inc., 529
U.S. 803, 813 (2000) (First Amendment strict scrutiny in context of
content-based speech regulation); Washington v. Glucksberg, 521 U.S. 702, 721
(1997) (substantive due process doctrine "forbids the government to infringe
fundamental liberty interests . . . unless the infringement is narrowly tailored
to serve a compelling state interest") (internal quotation marks and alteration
omitted); see generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54
UCLA L. Rev. 1267, 1271 (2007) ("the Supreme Court adopted the strict scrutiny
formula as its generic test for the protection of fundamental rights").

Strict scrutiny requires the government to show that a law is narrowly
tailored to serve a compelling state interest. See Citizens United, 130 S. Ct.
at 898 [*112] (strict scrutiny "requires the Government to prove that the
restriction furthers a compelling interest and is narrowly tailored to achieve
that interest") (internal quotation marks omitted). This test strongly favors
the individual right in question. See Brown v. Entertainment Merchants Ass'n,
131 S. Ct. 2729, 2738 (2011) (strict scrutiny "is a demanding standard"); Vieth
v. Jubelirer, 541 U.S. 267, 294 (2004) (plurality opinion) (strict scrutiny
imposes "a strong presumption of invalidity" with a "thumb on the scales" in
favor of the individual right); Dunn v. Blumstein, 405 U.S. 330, 343 (1972)
(under strict scrutiny, "a heavy burden of justification is on the State").

It is especially inappropriate for the majority opinion here to apply
intermediate scrutiny rather than strict scrutiny to D.C.'s ban on
semi-automatic rifles. No court of appeals decision since Heller has applied
intermediate scrutiny to a ban on a class of arms that have not traditionally
been banned and are in common use. A ban on a class of arms is not an
"incidental" regulation. It is equivalent to a ban on a category of speech. Such
restrictions on core enumerated constitutional protections are not subjected to
[*113] mere intermediate scrutiny review. The majority opinion here is in
uncharted territory in suggesting that intermediate scrutiny can apply to an
outright ban on possession of a class of weapons that have not traditionally
been banned.

G

In sum, our task as a lower court here is narrow and constrained by
precedent. We need not squint to divine some hidden meaning from Heller about
what tests to apply. Heller was up-front about the role of text, history, and
tradition in Second Amendment analysis -- and about the absence of a role for
judicial interest balancing or assessment of costs and benefits of gun
regulations. Gun bans and gun regulations that are longstanding -- or, put
another way, sufficiently rooted in text, history, and tradition -- are
consistent with the Second Amendment individual right. Gun bans and gun
regulations that are not longstanding or sufficiently rooted in text, history,
and tradition are not consistent with the Second Amendment individual right. Our
role as a lower court is simply to apply the test announced by Heller to the
challenged provisions of D.C.'s new gun laws.

II

Whether we apply the Heller history- and tradition-based approach or strict
scrutiny or even [*114] intermediate scrutiny, D.C.'s ban on semi-automatic
rifles fails to pass constitutional muster. D.C.'s registration requirement is
likewise unconstitutional.

A

The first issue concerns D.C.'s ban on most semi-automatic rifles.10 A
semi-automatic gun "fires only one shot with each pull of the trigger" and
"requires no manual manipulation by the operator to place another round in the
chamber after each round is fired." Staples v. United States, 511 U.S. 600, 602
n.1 (1994). That is in contrast to an automatic gun -- also known as a machine
gun -- which "fires repeatedly with a single pull of the trigger. That is, once
its trigger is depressed, the weapon will automatically continue to fire until
its trigger is released or the ammunition is exhausted." Id.11

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -10 D.C.'s
law bans semi-automatic rifles by listing specific guns that, as relevant here,
share the characteristics of being a long gun and firing in a semi-automatic
manner, and typically have features such as protruding pistol grips. D.C. Code §
7-2501.01(3A)(A)(i)(I). The statute also includes a catchall provision covering
semi-automatic rifles that have certain additional features such as protruding
pistol grips. Id. § 7-2501.01(3A)(A)(i)(IV).
11 Under [*115] federal law, the "term 'machinegun' means any weapon which
shoots, is designed to shoot, or can be readily restored to shoot, automatically
more than one shot, without manual reloading, by a single function of the
trigger." 26 U.S.C. § 5845(b).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The vast majority of handguns today are semi-automatic.12 In Heller, the
Supreme Court ruled that D.C.'s law banning handguns, including semi-automatic
handguns, was unconstitutional. District of Columbia v. Heller, 554 U.S. 570,
628-29 (2008). This case concerns semi-automatic rifles.13 As with handguns, a
significant percentage of rifles are semi-automatic. D.C. asks this Court to
find that the Second Amendment protects semi-automatic handguns but not
semi-automatic rifles.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -12 See
Christopher S. Koper, Report to the Nat'l Inst. of Justice, U.S. Dep't of
Justice 81 (2004) (80% of handguns produced in 1993 were semi-automatic); Dep't
of Justice, Guns Used in Crime 3 (1995) ("Most new handguns are pistols rather
than revolvers.").
13 Rifles are within a broader category referred to as "long guns." Long guns,
such as rifles and shotguns, are intended to be fired from the shoulder instead
of with a single hand and are generally defined as being at least [*116] 16 to
18 inches long.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

There is no basis in Heller for drawing a constitutional distinction between
semi-automatic handguns and semi-automatic rifles.

As an initial matter, considering just the public safety rationale invoked by
D.C., semi-automatic handguns are more dangerous as a class than semi-automatic
rifles because handguns can be concealed. As was noted by the dissent in Heller,
handguns "are the overwhelmingly favorite weapon of armed criminals." 554 U.S.
at 682 (Breyer, J., dissenting); see also FBI, Crime in the United States, 2009
tbl.20 (2010). So it would seem a bit backwards -- at least from a public safety
perspective -- to interpret the Second Amendment to protect semi-automatic
handguns but not semi-automatic rifles. Indeed, at oral argument, the excellent
Solicitor General for D.C. acknowledged that "an argument could be made that the
government interest in banning handguns is just as compelling, if not more
compelling" than the government interest in banning semi-automatic rifles. Tr.
of Oral Arg. at 35. He added that "the government's interest may be more
compelling with regard to handgun[s]." Id. at 36. Counsel's frank acknowledgment
highlights the serious hurdle that [*117] Heller erects in the way of D.C.'s
attempt to ban semi-automatic rifles. Put simply, it would strain logic and
common sense to conclude that the Second Amendment protects semi-automatic
handguns but does not protect semi-automatic rifles.14

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -14 Some
would respond that the Second Amendment should not protect semi-automatic
handguns either. But that option is not open to us after Heller. The question
therefore is whether a sensible and principled constitutional line can be drawn
between semi-automatic handguns and semi-automatic rifles. I think not. Such a
line might be drawn out of a bare desire to restrict Heller as much as possible
or to limit it to its facts, but that is not a sensible or principled
constitutional line for a lower court to draw or a fair reading of the Heller
opinion, in my view.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

More to the point for purposes of the Heller analysis, the Second Amendment
as construed in Heller protects weapons that have not traditionally been banned
and are in common use by law-abiding citizens. Semi-automatic rifles have not
traditionally been banned and are in common use today, and are thus protected
under Heller.

The first commercially available semi-automatic rifles, the Winchester
[*118] Models 1903 and 1905 and the Remington Model 8, entered the market
between 1903 and 1906. See John Henwood, The 8 and the 81: A History of
Remington's Pioneer Autoloading Rifles 5 (1993); John Henwood, The Forgotten
Winchesters: A History of the Models 1905, 1907, and 1910 Self-Loading Rifles
2-6 (1995). (The first semi-automatic shotgun, designed by John Browning and
manufactured by Remington, hit the market in 1905 and was a runaway commercial
success. See Henwo, 8 and the 81, at 4.) Other arms manufacturers, including
Standard Arms and Browning Arms, quickly brought their own semi-automatic rifles
to market. See id. at 64-69. Five-shot magazines were standard, but as early as
1907, Winchester was offering the general public ten-shot magazines for use with
its .351 caliber semi-automatic rifles. See Henwood, The Forgotten Winchesters
22-23. Many of the early semi-automatic rifles were available with pistol grips.
See id. at 117-24. These semi-automatic rifles were designed and marketed
primarily for use as hunting rifles, with a small ancillary market among law
enforcement officers. See Henwood, 8 and the 81, at 115-21.

By contrast, full automatics were developed for the battlefield [*119] and
were never in widespread civilian use in the United States. Rifle-caliber
machine guns (excluding the Gatling gun, which required hand cranking) first saw
widespread use in the European colonial powers' African conquests of the 1890s.
See John Ellis, The Social History of the Machine Gun 79-107 (1986). Automatic,
pistol-caliber machine guns were fielded by European militaries toward the end
of World War I. The Thompson machine gun (commonly known as the "Tommy gun")
entered commercial sale in the United States in the mid-1920s but saw very
limited civilian use outside of organized crime and law enforcement. See Lee
Kennett & James LaVerne Anderson, The Gun in America 203-04 (1975). Within less
than a decade, the Tommy gun and other automatic weapons had been subjected to
comprehensive federal regulation. National Firearms Act, ch. 757, 48 Stat. 1236
(1934); see also 18 U.S.C. § 922(o).

Semi-automatic rifles remain in common use today, as even the majority
opinion here acknowledges. See Maj. Op. at 30 ("We think it clear enough in the
record that semi-automatic rifles . . . are indeed in 'common use,' as the
plaintiffs contend."). According to one source, about 40 percent of rifles
[*120] sold in 2010 were semi-automatic. See Nicholas J. Johnson et al.,
Firearms Law and the Second Amendment: Regulation, Rights, and Policy ch. 1
(forthcoming 2012). The AR-15 is the most popular semi-automatic rifle; since
1986, about two million semi-automatic AR-15 rifles have been manufactured. J.A.
84 (Declaration of Firearms Researcher Mark Overstreet). In 2007, the AR-15
alone accounted for 5.5 percent of firearms and 14.4 percent of rifles produced
in the United States for the domestic market. Id. A brief perusal of the website
of a popular American gun seller underscores the point that semi-automatic
rifles are quite common in the United States. See, e.g., Cabela's,
http://www.cabelas.com. Semi-automatic rifles are commonly used for self-defense
in the home, hunting, target shooting, and competitions. J.A. 137 (Declaration
of Firearms Expert Harold E. Johnson). And many hunting guns are semi-automatic.
Id.

Although a few states and municipalities ban some categories of
semi-automatic rifles, most of the country does not, and even the bans that
exist are significantly narrower than D.C.'s. What the Supreme Court said in
Heller as to D.C.'s handgun ban thus applies just as well to [*121] D.C.'s new
semi-automatic rifle ban: "Few laws in the history of our Nation have come close
to the severe restriction of the District's" law. 554 U.S. at 629.

What is more, in its 1994 decision in Staples, the Supreme Court already
stated that semi-automatic weapons "traditionally have been widely accepted as
lawful possessions." 511 U.S. at 612. Indeed, the precise weapon at issue in
Staples was the AR-15. The AR-15 is the quintessential semi-automatic rifle that
D.C. seeks to ban here. Yet as the Supreme Court noted in Staples, the AR-15 is
in common use by law-abiding citizens and has traditionally been lawful to
possess. By contrast, as the Court stated in Staples and again in Heller,
short-barreled shotguns and automatic "M-16 rifles and the like" are not in
common use and have been permissibly banned by Congress. Heller, 554 U.S. at
625, 627; see also Staples, 511 U.S. at 611-12 ("certain categories of guns --
no doubt including the machineguns, sawed-off shotguns, and artillery pieces
that Congress has subjected to regulation -- . . . have the same quasi-suspect
character we attributed to owning hand grenades," but "guns falling outside
those categories traditionally have been [*122] widely accepted as lawful
possessions"); 18 U.S.C. § 922(o)(1) ("it shall be unlawful for any person to
transfer or possess a machinegun").15

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -15 In our
decision in Parker, we similarly stated that handguns, shotguns, and rifles have
traditionally been possessed by law-abiding citizens and are within the
protection of the Second Amendment. Parker v. District of Columbia, 478 F.3d
370, 398 (D.C. Cir. 2007), aff'd sub nom. Heller, 554 U.S. 570.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The Supreme Court's statement in Staples that semi-automatic rifles are
traditionally and widely accepted as lawful possessions further demonstrates
that such guns are protected under the Heller history- and tradition-based test.
The government may still ban automatic firearms (that is, machine guns), which
traditionally have been banned. But the government may not generally ban
semi-automatic guns, whether semi-automatic rifles, shotguns, or handguns.

Even if it were appropriate to apply some kind of balancing test or level of
scrutiny to D.C.'s ban on semi-automatic rifles, the proper test would be strict
scrutiny, as explained above. See supra Part I.F. That is particularly true
where, as here, a court is analyzing a ban on a class of arms within [*123] the
scope of Second Amendment protection. If we are to apply strict scrutiny, we
must do so in a manner consistent with Heller's holding that D.C.'s handgun ban
was unconstitutional. But D.C. cannot show a compelling interest in banning
semi-automatic rifles because the necessary implication of the decision in
Heller is that D.C. could not show a sufficiently compelling interest to justify
its banning semi-automatic handguns.

For its part, the majority opinion analyzes D.C.'s ban on semi-automatic
rifles under an intermediate scrutiny balancing test. Even if the majority
opinion were right that intermediate scrutiny is the proper test, the majority
opinion's application of intermediate scrutiny here is unconvincing: The
fundamental flaw in the majority opinion is that it cannot persuasively explain
why semi-automatic handguns are constitutionally protected (as Heller held) but
semi-automatic rifles are not.

In attempting to distinguish away Heller's protection of semi-automatic
handguns, the majority opinion suggests that semi-automatic rifles are almost as
dangerous as automatic rifles (that is, machine guns) because semi-automatic
rifles fire "almost as rapidly." Maj. Op. at 34. Putting [*124] aside that the
majority opinion's data indicate that semi-automatics actually fire
two-and-a-half times slower than automatics, id., the problem with the
comparison is that semi-automatic rifles fire at the same general rate as
semi-automatic handguns. And semi-automatic handguns are constitutionally
protected under the Supreme Court's decision in Heller. So the majority opinion
cannot legitimately distinguish Heller on that basis. See Eugene Volokh,
Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical
Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1484 (2009) ("The laws
generally define assault weapons to be a set of semiautomatic weapons (fully
automatic weapons have long been heavily regulated, and lawfully owned fully
automatics are very rare and very expensive) that are little different from
semiautomatic pistols and rifles that are commonly owned by tens of millions of
law-abiding citizens. 'Assault weapons' are no more 'high power' than many other
pistols and rifles that are not covered by the bans.") (footnote omitted).16

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -16 In
passing, the majority opinion here tosses out the possibility that Heller might
protect handguns that are revolvers but [*125] not handguns that are
semi-automatic pistols. See Maj. Op. at 43. I find that an utterly implausible
reading of Heller given the Court's many blanket references to handguns and
given that most handguns are semi-automatic.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The majority opinion next contends that semi-automatic handguns are good
enough to meet people's needs for self-defense and that they shouldn't need
semi-automatic rifles. But that's a bit like saying books can be banned because
people can always read newspapers. That is not a persuasive or legitimate way to
analyze a law that directly infringes an enumerated constitutional right.
Indeed, Heller itself specifically rejected this mode of reasoning: "It is no
answer to say, as petitioners do, that it is permissible to ban the possession
of handguns so long as the possession of other firearms (i.e., long guns) is
allowed." 554 U.S. at 629; see also Parker v. District of Columbia, 478 F.3d
370, 400 (D.C. Cir. 2007) ("The District contends that since it only bans one
type of firearm, 'residents still have access to hundreds more,' and thus its
prohibition does not implicate the Second Amendment because it does not threaten
total disarmament. We think that argument frivolous. [*126] It could be
similarly contended that all firearms may be banned so long as sabers were
permitted."), aff'd sub nom. Heller, 554 U.S. 570. Furthermore, the majority
opinion's assertion does not sufficiently account for the fact that rifles, but
typically not handguns, are used for hunting. Cf. Heller, 554 U.S. at 599 (most
founding-era Americans "undoubtedly" thought right to own firearms "even more
important for self-defense and hunting" than for militia service).

In support of its law, D.C. suggests that semi-automatic rifles are
"offensive" and not just "defensive." But that is plainly true of semi-automatic
handguns as well (after all, handguns are far and away the guns most often used
in violent crimes), and yet the Supreme Court held semi-automatic handguns to be
constitutionally protected. Moreover, it's hard to see why, if a gun is
effective for "offense," it might not also be effective for "defense." If a gun
is employed by criminals on the offense who are willing to violate laws and
invade homes, for example, their potential victims will presumably want to be
armed with similarly effective weapons for their defense. Cf. Heller, 554 U.S.
at 711 (Breyer, J., dissenting) ("the [*127] very attributes that make handguns
particularly useful for self-defense are also what make them particularly
dangerous"). There is no reason to think that semi-automatic rifles are not
effective for self-defense in the home, which Heller explained is a core purpose
of the Second Amendment right. The offense/defense distinction thus doesn't
advance the analysis here, at least in part because it is the person, not the
gun, who determines whether use of the gun is offensive or defensive. Perhaps
D.C. -- by referring to the offense/defense distinction -- is simply intending
to say that semi-automatic rifles are especially dangerous. But it is difficult
to make the case that semi-automatic rifles are significantly more dangerous
than semi-automatic handguns, and the Supreme Court has already held
semi-automatic handguns to be constitutionally protected.

D.C. repeatedly refers to the guns at issue in this case as "assault
weapons." But if we are constrained to use D.C.'s rhetoric, we would have to say
that handguns are the quintessential "assault weapons" in today's society; they
are used far more often than any other kind of gun in violent crimes. See Bureau
of Justice Statistics, Pub. No. [*128] 194820, Weapon Use and Violent Crime 3
(2003) (87% of violent crimes committed with firearms between 1993 and 2001 were
committed with handguns). So using the rhetorical term "assault weapon" to refer
to semi-automatic rifles does not meaningfully distinguish semi-automatic rifles
from semi-automatic handguns. Nor does the rhetorical term "assault weapon" help
make the case that semi-automatic rifles may be banned even though
semi-automatic handguns are constitutionally protected.

Under intermediate scrutiny, yet another problem with D.C.'s law is its
tailoring. The law is not sufficiently tailored even with respect to the
category of semi-automatic rifles. It bans certain semi-automatic rifles but not
others -- with no particular explanation or rationale for why some made the list
and some did not. The list appears to be haphazard. It does not reflect the kind
of tailoring that is necessary to justify infringement of a fundamental right,
even under the more relaxed intermediate scrutiny test.

In short, the majority opinion cannot persuasively explain why semi-automatic
handguns are constitutionally protected but semi-automatic rifles are not. In
Heller, D.C. argued that it could ban [*129] handguns because individuals could
still own rifles. That argument failed. Here, D.C. contends that it can ban
rifles because individuals can still own handguns. D.C.'s
at-least-you-can-still-possess-other-kinds-of-guns argument is no more
persuasive this time around. Under the Heller history- and tradition-based test,
or the strict scrutiny test, or even the majority opinion's own intermediate
scrutiny test, the D.C. ban on semi-automatic rifles is unconstitutional.

B

The second main issue on appeal concerns D.C.'s gun registration regime. D.C.
requires registration of all guns lawfully possessed in D.C. The Supreme Court
in Heller expressly allowed "longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms." 554 U.S.
at 626-27 (emphasis added). The Court added that regulations and exceptions
should be judged based on their "historical justifications." Id. at 635. In
McDonald, the Court summarized the point this way: "We made it clear in Heller
that our holding did not cast [*130] doubt on such longstanding regulatory
measures as 'prohibitions on the possession of firearms by felons and the
mentally ill,' 'laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.'" McDonald v. City of Chicago,
130 S. Ct. 3020, 3047 (2010) (controlling opinion of Alito, J.) (quoting Heller,
554 U.S. at 626-27).17

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -17 With
respect to guns that the government has the constitutional authority to ban --
namely, those classes of weapons that have traditionally been banned and are not
in common use by law-abiding citizens -- the government may of course impose
registration as a lesser step. See United States v. Miller, 307 U.S. 174, 175
n.1 (1939) (describing federal statute requiring registration of short-barreled
rifles and shotguns, machine guns, and silencers transported in interstate
commerce). But D.C.'s registration requirement applies to all guns, not just
those it has the authority to ban.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The fundamental problem with D.C.'s gun registration law is that registration
of lawfully possessed guns is not "longstanding." Registration of all guns
lawfully possessed [*131] by citizens in the relevant jurisdiction has not been
traditionally required in the United States and, indeed, remains highly unusual
today.

In considering D.C.'s registration requirement, it's initially important to
distinguish registration laws from licensing laws. Licensing requirements
mandate that gun owners meet certain standards or pass certain tests before
owning guns or using them in particular ways. Those laws can advance gun safety
by ensuring that owners understand how to handle guns safely, particularly
before guns are carried in public. For example, many jurisdictions that permit
the carrying of concealed weapons have traditionally imposed licensing
requirements on persons who wish to carry such weapons. Registration
requirements, by contrast, require registration of individual guns and do not
meaningfully serve the purpose of ensuring that owners know how to operate guns
safely in the way certain licensing requirements can. For that reason,
registration requirements are often seen as half-a-loaf measures aimed at
deterring gun ownership. It is true that registration requirements also provide
a hook to convict (and potentially flip) criminals who are suspected of having
[*132] committed other illegal acts, but as the majority opinion recognizes,
that is a "circular" and constitutionally unacceptable rationale for requiring
registration with respect to a core enumerated constitutional right. Maj. Op. at
25 n.*.

Likewise, it's also important at the outset to distinguish registration
requirements imposed on gun owners from record-keeping requirements imposed on
gun sellers. Some record-keeping requirements on gun sellers are traditional and
common. Thus, the government may constitutionally impose certain record-keeping
requirements on the sellers of guns. See Heller, 554 U.S. at 627 (listing
"conditions and qualifications on the commercial sale of arms" as being within
category of traditional gun regulations).

The issue here, however, is registration of all guns owned by people in the
District of Columbia. As D.C. acknowledges, there is not, and never has been, a
"comprehensive federal system of firearm registration." Council Comm. on Pub.
Safety & the Judiciary, Comm. Rep. on B. 17-843, at 3 (D.C. 2008). Similarly,
the vast majority of states have not traditionally required registration of
lawfully possessed guns. The majority opinion cites several state laws [*133]
that have existed since the beginning of the 20th Century. Maj. Op. at 16-17.
But those state laws generally required record-keeping by gun sellers, not
registration of all lawfully possessed guns by gun owners. There certainly is no
tradition in the United States of gun registration imposed on all guns. And laws
regulating gun sellers provide no support for D.C.'s registration requirement,
which compels every gun owner to register every gun he or she lawfully
possesses.

Even if modern laws alone could satisfy Heller's history-and tradition-based
test, there presumably would have to be a strong showing that such laws are
common in the states. Cf. Kennedy v. Louisiana, 554 U.S. 407, 423-26 (2008)
(only six states permitting death penalty for child rapists shows national
consensus against it). Such a showing cannot be made with respect to
registration requirements. Today, most states require no registration for any
firearms; only seven states require registration for some firearms; and only
Hawaii requires registration for all firearms. And even Hawaii does not impose
all of the onerous requirements associated with registration that D.C. does.18
Put simply, D.C.'s registration law is [*134] the strictest in the Nation, by
D.C.'s own admission. See Firearms Control: Hearing of the H.C. Comm. on Home
Aff. (U.K. 2010) (statement of Peter Nickles, D.C. Att'y Gen.) (acknowledging
common view that D.C. has "the strictest gun laws in the United States"); see
also Haw. Rev. Stat. § 134-3(a)-(b); Cal. Penal Code §§ 11106, 12276, 12276.1,
12276.5, 12280, 12285(a) (registration of handguns and certain rifles that are
otherwise banned); Conn. Gen. Stat. § 53-202d(a) (registration of grandfathered
rifles that are otherwise banned); Md. Code Ann., Crim. Law § 4-303(b)
(registration of grandfathered pistols that are otherwise banned); N.J. Stat.
Ann. §§ 2C:39-5(f), 2C:58-12 (registration of grandfathered weapons that are
otherwise banned); La. Rev. Stat. Ann. §§ 40:1781, 40:1783 (registration of
limited types of firearms); Mich. Comp. Laws § 28.422 (de facto registration of
pistols).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -18 The D.C.
law at issue here requires far more than basic registration of guns. It
mandates, among other things, that a gun owner submit every pistol for a
"ballistics identification procedure," D.C. Code § 7-502.03(d); appear in person
to register a gun, § 7-2502.04; register only one pistol every 30 days, [*135]
§ 7-2502.03(e); and renew each registration certificate every three years, §
7-2502.07a(a). It is undisputed in this case that D.C.'s myriad
registration-related requirements are unique -- and uniquely burdensome -- among
laws in the United States. These additional registration-related requirements
find even less support in history and tradition than the basic registration
requirement.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Because the vast majority of states have not traditionally required and even
now do not require registration of lawfully possessed guns, D.C.'s registration
law -- which is the strictest in the Nation and mandates registration of all
guns -- does not satisfy the history- and tradition-based test set forth in
Heller and later McDonald.

D.C. contends that registration is a longstanding requirement in American law
because early militia laws required militiamen to submit arms for inspection.
See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep
Arms in Early America, 25 Law & Hist. Rev. 139, 161 (2007). But D.C.'s attempt
to analogize its registration law to early militia laws is seriously flawed for
two reasons. First, those early militia laws applied only to militiamen, not to
all [*136] citizens. In general, men over age 45 and women did not have to
comply with such laws. See Heller, 554 U.S. at 580 ("the militia in colonial
America consisted of a subset of the people -- those who were male, able bodied,
and within a certain age range") (internal quotation marks omitted). Second,
militia members were required to submit for inspection only one or a few
firearms, not all of their firearms. That's because the purpose of those early
militia requirements was not registration of firearms, but rather simply to
ensure that the militia was well-equipped. See, e.g., An Act for Amending the
Several Laws for Regulating and Disciplining the Militia, and Guarding Against
Invasions and Insurrections (1784), in 11 The Statutes at Large; Being a
Collection of All the Laws of Virginia 476, 476-79 (William Waller Hening ed.,
Richmond, George Cochran 1823) (The "defence and safety of the commonwealth
depend upon having its citizens properly armed and taught the knowledge of
military duty . . . . [E]very of the said officers, non-commissioned officers,
and privates, shall constantly keep the aforesaid arms, accoutrements and
ammunition ready to be produced whenever called for by his commanding [*137]
officer.").

Those militia requirements were a far cry from a registration requirement for
all firearms. Those laws therefore provide no meaningful support for D.C.'s
broad and unprecedented registration law. Nor has D.C. been able to find any
other historical antecedents for its registration requirement. Yet again, what
the Supreme Court said in Heller with respect to D.C.'s handgun ban applies as
well to D.C.'s registration requirement: "Few laws in the history of our Nation
have come close to the severe restriction of the District's" law. 554 U.S. at
629.

The Supreme Court's 1939 decision in Miller further suggests that
registration of all lawfully possessed guns is not permissible under the Second
Amendment. See United States v. Miller, 307 U.S. 174 (1939). Miller involved a
defendant's conviction for possessing an unregistered firearm. If registration
were constitutionally permissible for all lawfully possessed guns, the Court
could simply have affirmed the conviction on that ground. Instead, the Miller
Court analyzed whether the kind of gun Miller possessed -- a sawed-off shotgun
-- was within the class of weapons protected by the Second Amendment. The
Court's approach suggested that [*138] the government could require
registration only of guns that were outside the protection of the Second
Amendment -- namely, those classes of guns that the government had traditionally
banned and that were not in common use, such as machine guns and sawed-off
shotguns. Id. at 178; see also Heller, 554 U.S. at 622 (emphasizing that Miller
turned on the "type of weapon at issue") (emphasis omitted). After all, if
registration could be required for all guns, the Court could have just said so
and ended its analysis; there would have been no need to go to the trouble of
considering whether the gun in question was the kind protected under the Second
Amendment.

Perhaps recognizing the dearth of historical or precedential support for its
registration law, D.C. says that licensing laws are "conceptually similar" to
registration requirements. D.C. Br. at 19. D.C. also advances a similar argument
when citing the record-keeping laws for sellers as support for its registration
requirement. But to rely on those laws to support registration requirements on
gun owners for all of their guns is to conduct the Heller analysis at an
inappropriately high level of generality -- akin to saying that because the
[*139] government traditionally could prohibit defamation, it can also prohibit
speech criticizing government officials.

D.C.'s law requiring registration of all lawfully possessed guns in D.C. is
not part of the tradition of gun regulation in the United States; it is the most
stringent such law in the Nation; and it is significantly more onerous than
traditional licensing requirements or record-keeping requirements imposed only
on gun sellers. Registration requirements of the kind enacted by D.C. thus do
not satisfy the Supreme Court's history- and tradition-based test.

Even if it were proper to apply strict or intermediate scrutiny to D.C.'s
registration law (as the majority opinion does), the registration requirement
still would run into serious constitutional problems. If we were applying one of
those balancing tests, however, I would remand: The current record is
insufficient to render a final evaluation of the registration law under those
balancing tests.

To begin with, it would be hard to persuasively say that the government has
an interest sufficiently weighty to justify a regulation that infringes
constitutionally guaranteed Second Amendment rights if the Federal Government
and the [*140] states have not traditionally imposed -- and even now do not
commonly impose -- such a regulation. Cf. Brown v. Entertainment Merchants Ass'n
, 131 S. Ct. 2729, 2736 (2011) (considering First Amendment challenge to ban on
sale of violent video games: "California's argument would fare better if there
were a longstanding tradition in this country of specially restricting
children's access to depictions of violence, but there is none.") (emphasis
added); United States v. Stevens, 130 S. Ct. 1577, 1585 (2010) (considering
First Amendment challenge to ban on depictions of animal cruelty: "we are
unaware of any . . . tradition excluding depictions of animal cruelty from 'the
freedom of speech' codified in the First Amendment") (emphasis omitted); Romer
v. Evans, 517 U.S. 620, 633 (1996) ("It is not within our constitutional
tradition to enact laws of this sort.").

Moreover, D.C.'s articulated basis for the registration requirement is that
police officers, when approaching a house to execute a search or arrest warrant
or take other investigative steps, will know whether the residents have guns.
But that is at best a Swiss-cheese rationale because police officers obviously
will assume the occupants [*141] might be armed regardless of what some central
registration list might say. So this asserted rationale leaves far too many
false negatives to satisfy strict or intermediate scrutiny with respect to
burdens on a fundamental individual constitutional right.19 D.C.'s registration
law thus does not appear to be sufficiently tailored to advance a compelling or
important government interest for purposes of the heightened scrutiny tests.
That said, D.C. alludes to the possibility that other rationales might be
asserted to support a registration requirement. Therefore, if I were applying a
form of heightened scrutiny to the registration requirement, I would remand for
further analysis of the interests that might be asserted. (It is possible,
moreover, that the registration law might pass intermediate but not strict
scrutiny.)

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -19
Moreover, citizens may not be forced to register in order to exercise certain
other constitutionally recognized fundamental rights, such as to publish a blog
or have an abortion. See Volokh, Implementing the Right to Keep and Bear Arms
for Self-Defense, 56 UCLA L. Rev. at 1546 (discussing impermissibility of
registration requirements applied to free speech and abortion [*142] rights).
In concluding that D.C.'s handgun registration requirement might satisfy
intermediate scrutiny, the majority opinion notes that the government may
require registration for voting. See Maj. Op. at 18. But those laws serve the
significant government interest of preventing voter fraud. The majority opinion
also cites car registration laws. Id. Of course, there is no enumerated
constitutional right to own a car. Perhaps more to the point, those laws help
prevent theft and assist recovery of stolen cars. No similar interest justifies
gun registration laws.

Oddly, the majority opinion says that a registration requirement is
permissible for handguns but might be impermissible for rifles or other long
guns. See id. That approach gives potentially greater constitutional protection
to long guns than to handguns even though Heller held that handguns warrant the
highest constitutional protection.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In any event, the proper test to apply is Heller's history-and
tradition-based test. Because most of the Nation has never required -- and even
now does not require -- registration of all lawfully possessed firearms, D.C.'s
strict registration law is not "longstanding" in the United States. After Heller
, [*143] some licensing requirements remain permissible, and some
record-keeping requirements on gun sellers remain permissible. But D.C.'s
registration law violates the Second Amendment as construed by the Supreme
Court.

* * *

This is a case where emotions run high on both sides of the policy issue
because of the vital public safety interests at stake. As one who was born here,
grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and
worked in this area almost all of his life, I am acutely aware of the gun, drug,
and gang violence that has plagued all of us. As a citizen, I certainly share
the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the
senseless violence that has persisted for too long and harmed so many. And I
greatly respect the motivation behind the D.C. gun laws at issue in this case.
So my view on how to analyze the constitutional question here under the relevant
Supreme Court precedents is not to say that I think certain gun registration
laws or laws regulating semi-automatic guns are necessarily a bad idea as a
matter of policy. If our job were to decree what we think is the best policy, I
would carefully consider the issues through [*144] that different lens and
might well look favorably upon certain regulations of this kind. But our task is
to apply the Constitution and the precedents of the Supreme Court, regardless of
whether the result is one we agree with as a matter of first principles or
policy. See Texas v. Johnson, 491 U.S. 397, 420-21 (1989) (Kennedy, J.,
concurring) ("The hard fact is that sometimes we must make decisions we do not
like. We make them because they are right, right in the sense that the law and
the Constitution, as we see them, compel the result."). A lower-court judge has
a special obligation, moreover, to strictly and faithfully follow the lead of
the "one supreme Court" established by our Constitution, regardless of whether
the judge agrees or disagrees with the precedent.

D.C. believes that its law will help it fight violent crime. Few government
responsibilities are more significant. That said, the Supreme Court has long
made clear that the Constitution disables the government from employing certain
means to prevent, deter, or detect violent crime. See, e.g., Mapp v. Ohio, 367
U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); City of Indianapolis
v. Edmond, 531 U.S. 32 (2000); Crawford v. Washington, 541 U.S. 36 (2004);
[*145] Kennedy v. Louisiana, 554 U.S. 407 (2008); District of Columbia v. Heller
, 554 U.S. 570 (2008). In the words of the Supreme Court, the courts must
enforce those constitutional rights even when they have "controversial public
safety implications." McDonald v. City of Chicago, 130 S. Ct. 3020, 3045 (2010)
(controlling opinion of Alito, J.).

As I read the relevant Supreme Court precedents, the D.C. ban on
semi-automatic rifles and the D.C. gun registration requirement are
unconstitutional and may not be enforced. We should reverse the judgment of the
District Court and remand for proceedings consistent with this opinion.20 I
respectfully dissent.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -20 The D.C.
ban on magazines of more than 10 rounds requires analysis in the first instance
by the District Court. In order to apply Heller's test to this prohibition, we
must know whether magazines with more than 10 rounds have traditionally been
banned and are not in common use. The parties here did not brief that question
in much detail. Evidence presented to the District Court on the history and
prevalence of magazines of more than 10 rounds would be helpful to the proper
disposition of that issue under the Heller test. Therefore, I would remand
[*146] to the District Court for analysis of that issue.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -