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Eugene Volokh links to the opinion in Shepard v. Madigan (S.D. Ill. Mar. 30, 2012).

The court found nothing in history to establish the claim:

The Court’s review of relevant history is such that the Court cannot find that history
supports plaintiffs’ claim that the Second Amendment necessarily extends the right to bear arms to the unfettered right to carry weapons in public 7In undertaking this review, the Court has considered decisions of courts which have preceded this Court’s inquiry and analysis on the issue of the application of the Heller decision to Second Amendment challenges outside of the home. Most notably, this Court finds the logic and analysis of the Central District of Illinois, on basically identical issues to those raised here, to be persuasive and adopts, but does not repeat, that court’s review of the historical approach to the issue of the Second Amendment rights raised here. See, Moore v. Madigan, No. 11-3134, 2012 WL 3447660, at *5 (C.D. Ill. Feb. 3, 2012). In addition, the Court finds instructive, the summary in Moore of other courts which have considered and rejected attempts to expand the decision in Heller to the right to bear arms outside of the home. Id. at *7 (collecting cases).

The court relied on Judge Wilkerson (it meant Wilkinson’s) opinion in Mascandaro:

Although Heller reviewed the historical underpinnings of the Second Amendment and found that this included the right to bear arms within the home, it simply did not go so far as to require the extension of those protected Second Amendment rights to include the vast area outside the home. As the Fourth Circuit stated in a post-Heller review, Heller creates a “dilemma faced by lower courts in the post-Heller world: how far to push Heller beyond its undisputed core holding[?]” 638 F.3d at 475 (Wilkerson, writing for the court as to Part III B).

Funny how courts cite or ignore Wilkinson’s controlling opinion.

The court, relying on Ezell, applies intermediate scrutiny:

Viewing the Second Amendment claim raised by plaintiffs, to carry the firearms in public for the purpose of general self-defense, through the intermediate scrutiny lens, the Court is aware that the state must establish that there is a reasonable fit between the statute and its restrictions and a substantial governmental interest. The Court notes that in making this review, it is aware that in cases involving federal statutes making it unlawful for a person who has a prior conviction to carry a firearm, 18 U.S.C. §922(g), the Seventh Circuit has upheld the statute’s constitutionality under a Heller challenge. See, e.g. United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (where the court upholding the federal statute challenged by a defendant in a criminal action who had been indicted for possessing a firearm, after a misdemeanor conviction pursuant to 18 U.S.C. §922(g), recognized that the goal of the statute, to prevent “armed mayhem” was “an important governmental objective.” 614 F.3d at 642.)

The defendants assert that the State of Illinois has significant governmental interests in protecting the safety of the public by restricting the availability and use of handguns in public. The Supreme Court has previously recognized that under intermediate scrutiny cases, the government’s interest need not be compelling. Schenck v. Pro-Choice Network, 519 U.S. 357, 376 (1997). As the Fourth Circuit noted in United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir. 2011), “[l]oaded firearms are surely more dangerous than unloaded firearms, as they could fire accidentally or be fired before a potential victim has the opportunity to flee.” The State of Illinois has determined that, for purposes of protection of its residents, a citizen’s interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm. This Court FINDS that the state has, therefore, established a substantial interest in the regulations at issue. . . .

action who had been indicted for possessing a firearm, after a misdemeanor conviction pursuant to 18 U.S.C. §922(g), recognized that the goal of the statute, to prevent “armed mayhem” was “an important governmental objective.” 614 F.3d at 642.) The defendants assert that the State of Illinois has significant governmental interests in protecting the safety of the public by restricting the availability and use of handguns in public. The Supreme Court has previously recognized that under intermediate scrutiny cases, the government’s interest need not be compelling. Schenck v. Pro-Choice Network, 519 U.S. 357, 376 (1997). As the Fourth Circuit noted in United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir. 2011), “[l]oaded firearms are surely more dangerous than unloaded firearms, as they could fire accidentally or be fired before a potential victim has the opportunity to flee.” The State of Illinois has determined that, for purposes of protection of its residents, a citizen’s interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm. This Court FINDS that the state has, therefore, established a substantial interest in the regulations at issue.

Eugene reads Ezell differently:

I’m not claiming that Ezell clearly selected “a more rigorous” standard than intermediate scrutiny for law-abiding-citizen Second Amendment claims — it may be that its selection of that standard is limited to restrictions that interfere with gun possession in the home. (The Ezell plaintiffs “claim[ed] that the range ban impermissibly burdens the core Second Amendment right to possess firearms at home for protection because the Ordinance conditions lawful possession on range training but makes it impossible to satisfy this condition anywhere in the city.”) But I am saying that Ezell did not select “intermediate scrutiny” as the general standard for law-abiding citizen Second Amendment claims outside the home, and the district court was mistaken in concluding that Ezell did so. Rather, the district court should have recognized that the issue had not been decided by the Seventh Circuit, and the court should have accepted the responsibility for itself making the choice, rather than asserting that the choice was made for it

Eugene Volokh links to another Gura-Second-Amendment victory from the Eastern District of North Carolina in Bateman v. Perdue (E.D.N.C. Mar. 29, 2012). North Carolina had a statute on the books that banned the transportation of guns during a state of emergency. The Court found this statute facially unconstitutional.

A few observations. First, seeing how this case arose in the Fourth Circuit, it is fascinating how the Court effectively ignored Wilkinson’s controlling opinion in Masciandaro–something the district court of Maryland did in finding that the Second Amendment applies outside the home.

In Heller, the Supreme Court found that the Second Amendment includes right to ‘protect [] [onself] against both public and private violence,’ thus extending the right in some  form to wherever a person could become exposed to public or private violence.” United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011) (Niemeyer, J., writing separately as to Part III.B) (quoting Heller, 128 S. Ct. at 2799) (alterations in original) (citation omitted). “Moreover, the right to keep and bear arms was found to have been understood to exist not only for self-defense, but also for membership in a militia and for hunting, neither of which is a horne-bound activity.” Id. at 468 (citation omitted) . . .  Therefore, the Second Amendment right to keep and bear arms “is not strictly limited to the horne environment but extends in some form to wherever those activities or needs occur.” Masciandaro, 638 F.3d at 468 (Niemeyer, J., writing separately as to Part III.B)

Didn’t even bother distinguishing Wilkinson. So much for restraint.

Second, the court’s framework focused heavily on the fact that the people who would be disarmed here are “law abiding citizens.” That is, citizens who aren’t likely to harm others.

As in Masciandaro, the statutes involved in this case burden the rights of law abiding citizens. As such, they merit stricter scrutiny than would similar laws targeting felonsl domestic violence misdemeanants or other individuals posing public safety concerns. See Masciandarol 638 F.3d at 470 (noting differences between Masciandaro and Chesterl Masciandaro was law abiding citizen whereas Chester was not, but Chester was in his home whereas Masciandaro was not intermediate scrutiny found applicable in both cases) . . .  .

This prohibition applies equally to all individuals and to all classes of firearms, not just handguns. It is not limited to a certain manner of carrying weaspons or to particular times of the day. Most significantly, it prohibits law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense.  . . .

While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment.

This is a distinction I drew in Social Cost, and that I have seen in a few other opinions. Judges are less likely to be afraid of protecting the rights of those they deem less dangerous.

Third, the Court (unlike the court in Skoien) placed the burden on the state, and not the individual:

That being the case, the emergency declaration statutes are presumed invalid, and defendants bear the burden of rebutting that presumption by showing that the laws are narrowly tailored to serve a compelling government interest. This defendants have failed to do.

And the burden was quite high:

here is no dispute that defendants have a compelling interest in public safety and general crime prevention.  . . .

The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government’s interest in public safety. They do not target dangerous individuals or dangerous conduct.

As Eugene Volokh notes, regarding scrutiny, it is largely a distinction without a difference depending on how it is tailored:

Note that, as is often the case, the application of “strict scrutiny” can be quite rights-protective or not depending on what one understands “narrow tailoring” to mean. If narrow tailoring requires some plausible reason to believe that the law will on balance help prevent crime and injury, then that requirement will very often be satisfied. If it requires social science proof that the law will on balance help prevent crime and injury, then that requirement will rarely be satisfied, especially in situations such as this: There will rarely be solid studies of the effects of this particular kind of law.

And if, as here, “narrow tailoring” requires that the law not “excessively intrude” on rights, then that might be something like a rule of per se invalidation (at least as to very heavy burdens on the right): The premise of such an approach is that, regardless of whether the restrictions will reduce crime and injury, it is still unconstitutional if it interferes with the core of the right, since the constitutional recognition of the right expresses a judgment that the right must be protected despite the threat it may pose to compelling government interests.

 

From Judge Niemeyer in United States v. Carter, some discussion on relying on empirical data to support the calculation of social cost:

To discharge its burden of establishing a reasonable fit between the important goal of reducing gun violence and the prohibition in § 922(g)(3), the government may not rely upon mere “anecdote and supposition.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 822 (2000). Indeed, in Chester, we remanded the case to the district court for fur- ther development of the record because the government attempted to justify the permanent disarmament of domestic violence misdemeanants with unsupported intuitions rather than tangible evidence. See Chester, 628 F.3d at 683. None- theless, the Constitution does not mandate a specific method by which the government must satisfy its burden under heightened judicial scrutiny. See, e.g., Satellite Broadcasting & Commc’ns Ass’n v. FCC, 275 F.3d 337, 355, 360 (4th Cir. 2001) (requiring minimal empirical evidence where interme- diate scrutiny applied and Congress’ justifications were “both familiar and plausible”). On the contrary, the nature and quan- tity of any showing required by the government “to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justifica- tion raised.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000). Even when applying strict scrutiny—requiring a more taxing proof threshold than the one we apply here—the government may, in appropriate circumstances, carry its bur- den by relying “solely on history, consensus, and ‘simple common sense.’” Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (quoting Burson v. Freeman, 504 U.S. 191, 211 (1992)). Thus, while the government must carry its burden to establish the fit between a regulation and a governmental interest, it may resort to a wide range of sources, such as leg- islative text and history, empirical evidence, case law, and common sense, as circumstances and context require. See Staten, ___ F.3d at ___, 2011 WL 6016976, at *5, *11.

In developing its record in this case, the government has chosen not to rely on academic research or other empirical data to demonstrate the connection between drug use and gun violence, even though such evidence is abundantly available. See Yancey, 621 F.3d at 686. To be sure, the record need not be as fulsome as that necessary to justify § 922(g)(9), which was the subject of Chester, because the statutory text of § 922(g)(3) contains an important limiting principle that is absent from § 922(g)(9), as well as from many of the other § 922(g) provisions. Section 922(g)(9) permanently disarms anyone convicted of a misdemeanor crime of domestic vio- lence, even if the defendant has only one remote conviction. Although we ultimately upheld § 922(g)(9) as constitutional in Staten, Chester understandably required the government to make a heightened evidentiary showing before upholding the measure. By contrast, § 922(g)(3) does not permanently dis- arm all persons who, at any point in their lives, were unlawful drug users or addicts. Instead, it only applies to persons who are currently unlawful users or addicts.

…

Nonetheless, the government still bears the burden of showing that §922(g)(3)’s limited imposition on Second Amendment rights proportionately advances the goal of pre- venting gun violence. And we conclude that in this case, the record it made is insufficient. Without pointing to any study, empirical data, or legislative findings, it merely argued to the district court that the fit was a matter of common sense. In view of our decisions in Chester and Staten, we therefore remand this issue to the district court to allow the government to develop a record sufficient to justify its argument that drug users and addicts possessing firearms are sufficiently danger- ous to require disarming them.

This burden should not be difficult to satisfy in this case, as the government has already asserted in argument several risks of danger from mixing drugs and guns. For example, it claimed that due to the illegal nature of their activities, drug users and addicts would be more likely than other citizens to have hostile run-ins with law enforcement officers, which would threaten the safety of the law enforcement officers when guns are involved. It claimed that because drug users and addicts would “necessarily interact with a criminal ele- ment when obtaining their drugs,” their transactions in the black market would present far greater risks of violence (including gun violence) than lawful commerce. While the government did not specifically list the risks, it might be able to show, as found by other courts, that the risks arise from drug dealers seeking to maintain distribution territories and networks, protecting their drugs from theft, enforcing pay- ment, and protecting themselves in a market with unrestrained participants. The government also claimed that the inflated price of illegal drugs on the black market could drive many addicts into financial desperation, with the common result that the addict would be “forced to obtain the wherewithal with which to purchase drugs through criminal acts either against the person or property of another or through acts of vice such as prostitution or sale of narcotics.” Finally, it observed that users of illicit drugs “impair their mental function . . . and thus subject others (and themselves) to irrational and unpredictable behavior,” arguing that persons who routinely subject them- selves to the erratic and irrational effects of mind-altering drugs cannot be entrusted with the responsible use of fire- arms.

The online citation provided by the government for the full-text version of this report requires a paid subscription to the Journal of the American Medical Association. Fortunately for the government, we were able to confirm the accuracy of the government’s citation to our full satisfaction by viewing an abstract of the report on the Internet website for the Journal of the American Medical Association and by observing that the Seventh Circuit, sitting en banc, cited the same report for the same statistic in Skoien II, 614 F.3d at 643. Nonetheless, we are hereby putting the government on notice that, while it caught a break under the circumstances this time, if a social science report, article, or raw data upon which it relies is not readily available free of charge on the Internet, the government must offer a paper copy in the district court for the record in order for it to be considered.

Meanwhile, that very document, were it attached to the record in the district court proceedings, would only be accessible via PACER for a cost! Pacer is a paywall for the federal government. What CHUTZPAH!

H/T How Appealing and Kevin Walsh.

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.