Instant Analysis: DC v. Heller II (D.C. Circuit 2011)

October 4th, 2011

Dick’s back! But this time he lost at the D.C. Circuit, and I don’t suspect he’ll far much better at the Supreme Court, even if they take the case. Writing for Judge Henderson, (recently announced Senior) Judge Ginsburg found that DC’s new firearm law requiring registration of all firearms was permissible, as was the ban on so-called “assault weapons.”

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

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

Judge Kavanaugh issued a long dissent that began thusly:

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

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


Ginsburg Majority

The majority adopted the same approach used in Ezell, Chester, Marzzarella, and others, to arrive at intermediate scrutiny.

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. 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.

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.

The court elucidates the longstanding prohibition jig, reasoning that if it’s been around for a while, it is likely constitutional (weak reasoning in light of the fact that the federal constitution only realistically protected the Second Amendment since 2008)

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.

Based on this history, handgun registration is kosher:, but not for long gun

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. . . .

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.

The Court settles on intermediate scrutiny, reasoning that less exacting scrutiny is required where the regulation imposes a less substantial burden (there really should be a Blocher cite here).

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. . . .As between strict and intermediate scrutiny, we conclude the latter is the more appropriate standard for review of gun registration laws.

With respect to the “novel requirements” (such as the ban on long guns), the court does not defer to the predictive judgments of the legislature.

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.

But the court remands on these grounds for further factual development (and to give DC time to make up some reasons why their citizens should be disarmed).

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.

With respect to “assault” weapons and magazines larger than 10 rounds, the court finds the restrictions survive scrutiny.

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. . . . 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.

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.


Interestingly, the court attaches an “Appendix: Regarding the Dissent” to reply to Kavanaughs’ 60 page dissent (analyzed here).

Kavanaugh Dissent

Here is how Kavanaugh tees up the issue:

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

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

Kavanaugh reads Heller as looking to “history and tradition: to determine whether the enforcement of a firearm law is constitutional.

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.

In contrast to a comment Judge Easterbrook made in the en banc rehearing of Skoien,

“[Heller tells] us that statutory prohibitions on the possession of weapons by some persons are proper—and, importantly for current purposes, that the legisla‐ tive role did not end in 1791. That some categorical limits are proper is part of the original meaning, leaving to the people’s elected representatives the filling in of details.”

Judge Kavanaugh contends that a history and tradition approach permits flexibility than strict scrutiny!

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 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  . . .

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.

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.

This is a very astute point, though as I have argued elsewhere in the context of Adam Winkler’s book, looking to the history of the right to keep and bear arms in America before Heller from a constitutional point of view is a somewhat unsatisfying excursion. The Second Amendment didn’t mean anything. Any traditions we had were not constitutional. Kavanaugh addresses just this point in a footnote:

That said, post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text. The Court in Marbury found unconstitutional a law passed by the First Congress. See Marbury v. Madison, 5 U.S. 137 (1803). The practice of separate but equal was inconsistent with and repugnant to the text and original meaning of the Equal Protection Clause. See Brown v. Bd. of Education, 347 U.S. 483 (1954); Strauder v. West Virginia, 100 U.S. 303 (1880). The existence of post-ratification examples of congressional exclusion of elected members did not persuade the Court in Powell v. McCormack: “That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date.” 395 U.S. 486, 546-47 (1969).

I’ll have to digest that footnote further.

Kavanaugh also makes a broad point about applying the Constitution’s principles to modern-day circumstances (very Breyer-esque)

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.

In noting that Breyer’s dissent adopted a form of intermediate scrutiny–exactly what the Heller and McDonald courts rejected–Kavanaugh reasons that intermediate scrutiny cannot be appropriate, and further opines that terminology and labeling of scrutiny is inconsistent–and I would add, misleading. Scrutiny is a question of burdens. How you label it is largely irrelevant.

In that regard, it bears mention that strict scrutiny and intermediate scrutiny can take on different forms in different contexts that are sometimes colloquially referred to as, for example, strict-scrutiny-light or intermediate-scrutiny-plus or the like. How strong the government interest must be, how directly the law must advance that interest, how reasonable the alternatives must be – those questions are not always framed with precision in two clearly delineated categories, as opposed to points on a sliding scale of heightened scrutiny approaches. See, e.g., Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 387-88 (2000) (“a contribution limit involving significant interference with associational rights could survive if the Government demonstrated that contribution regulation was closely drawn to match a sufficiently important interest”) (citations and internal quotation marks omitted); United States v. Virginia, 518 U.S. 515, 531, 533 (1996) (referring to “skeptical scrutiny” and “heightened review” of gender-based law).

This passage hammers in Kavanaugh’s point that strict scrutiny cannot be the appropriate standard of review:

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.

After reciting Breyer’s list of questions, Kavanaugh notes that these are the question that courts routinely consider–a point I made in the Constitutionality of Social Cost.

The questions identified by Justice Breyer are of course the kinds of questions that courts ask when applying heightened scrutiny. So how did the Court respond to Justice Breyer? The Court simply rejected the premise of Justice Breyer’s criticism. Those kinds of difficult assessments would not need to be made, the Court said, because courts would not be applying that kind of test or scrutiny:

I like this line, and is similar to a bit Judge Sykes wrote in Ezell about requiring a Chicago resident to go across town to Evanston to attend a journalism school at Northwestern if a similar class was banned in the Windy City:

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.

Ha! Kavanaugh brings up the Kennedy v. Louisiana national consensus rubbish.

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 the strictest in the Nation…