2nd Amendment Thread

[de officiis]

A First Amendment-Inspired Approach to Heller's 'Schools' and 'Government Buildings'

Jordan E. Pratt

92 Neb. L. Rev. 537 (2014)

Abstract:

This Article focuses on Heller’s enumerated “sensitive places” — “schools” and “government buildings” — and begins with the premise that these terms allow some room for interpretation. In affirming the likely constitutionality of laws prohibiting the carry of firearms in schools, did the Supreme Court mean to leave undisturbed gun bans in primary and secondary schools only, or also on university campuses? In its reference to government buildings, did the Court mean to suggest that the government may act with impunity whenever it bans the carry of firearms on its property, or are there some types of public property — particularly national parks and remote areas home to dangerous wildlife — where a combination of low security risks and historical practices limits the government’s authority as property owner? This Article demonstrates how lessons from First Amendment forum doctrine and student-speech jurisprudence caution against an expansive reading of Heller’s enumerated sensitive places, especially for those lower courts that have classified them as categorical Second Amendment exceptions. Bans on the carry of firearms on university campuses and undeveloped government land may well be constitutional, but courts should at least subject them to some form of heightened scrutiny to preserve Heller’s strongly suggested general rule in favor of armed self-defense.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2240555

[de officiis]

GOOD CAUSE REQUIREMENTS FOR CARRYING GUNS IN PUBLIC

Joseph Blocher

127 Harv. L. Rev. F. 218 (April 2014)

Can the government require a person to give reasons before lawfully carrying a gun in public? If so, what reasons must it accept?

The answers to these questions remain somewhat unclear, but their importance is difficult to overstate. Licensing requirements for public carrying -- especially concealed carrying -- are central to the regulation of guns in public spaces, which is perhaps the most important issue in contemporary gun law and policy. As a constitutional matter, that issue is the crux of recent cases that have found or assumed a right to carry guns in public for self-defense. As a statutory matter, some states have expanded the right to possess and use guns in public by liberalizing concealed carry laws, loosening restrictions on gun possession in bars and restaurants, and adopting of Stand Your Ground laws. 1

But some jurisdictions -- including populous states like California, New York, and New Jersey -- require applicants for certain kinds of public carrying licenses to show cause (such as Maryland's "good and substantial reason" 2 or New York's "special need for self-protection" 3 ) for public carrying, especially concealed public carrying. And the government interest underlying these laws is easy enough to identify, since the costs and benefits of gun use are very different in public areas than in one's home. One can support an individual right to keep and bear arms, and even support the extension of that right into public spaces, while still believing that the Second Amendment permits public carrying to constitutionally be regulated more stringently than gun possession in one's home.

Gun rights advocates have recently challenged these good cause requirements on Second Amendment grounds. If successful, their challenges could effectively compel states to issue public carrying licenses to anyone who is not a felon, mentally ill, or otherwise excluded from the scope of Second Amendment coverage. In gun law lingo, this would mean constitutionally mandating a "shall issue" regime for public carrying licenses. It is important, therefore, to understand the arguments both for and against the constitutionality of restrictions on public carrying.

The extreme position holds that any kind of good cause requirement is unconstitutional. As one district court judge put it, "[a] citizen may not be required to offer a 'good and substantial reason' why he should be permitted to exercise his rights. The right's existence is all the reason he needs." 4 When framed this way, the point is rhetorically powerful, but substantively weak. Surely not every "cause" is "good" enough to trigger Second Amendment coverage. If a person turned in a concealed-carry application with the explanation, "I need to carry a gun in public so that I can hijack a plane with it," few would think that denying the license would violate his Second Amendment rights. It is not clear why the result would be any different if the insufficient cause were conveyed through evidence other than an outright declaration.

It follows that some good cause requirements -- or at least some "not bad" cause requirements -- are constitutional. Or, to put it another way, the right to keep and bear arms does not encompass a right to carry guns in public for any reason whatsoever. It is equally clear, however, that some "causes" for gun ownership are constitutionally protected, and therefore cannot be excluded by a good cause requirement. If a person (we can call him Brad) wants a gun because he is in immediate danger of being killed by violent criminals -- and is not himself a felon, mentally ill, or otherwise subject to the categorical restrictions approved in District of Columbia v. Heller 5 -- then his claim to carry a weapon in public would fall squarely within the "core" interest of self-defense. 6

Separating these extreme cases, a host of harder questions remain. What if Brad is not actually in any danger, but simply paranoid about imagined threats? What if he wants the gun so that he can hunt squirrels, a generally lawful activity whose constitutional coverage is nevertheless unclear? What if his "bad" reason for gun ownership is not likely ever to manifest itself in illegal activity?

Full Article:http://scholarship.law.duke.edu/cgi/vie ... cholarship

[de officiis]

DOES THE SECOND AMENDMENT PROTECT FIREARMS COMMERCE?

David Kopel

127 Harv. L. Rev. F. 230 (April 2014)

The First Amendment protects both book buyers and booksellers. Does the Second Amendment protect only people who buy guns, or does it also protect people who sell guns? Though this question has divided the federal courts, the answer is quite clear: operating a business that provides Second Amendment services is protected by the Second Amendment. District of Columbia v. Heller 1 teaches that regulation of how firearms are commercially sold enjoys a presumption of constitutionality, which does not extend to prohibitions of firearms sales.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2431026

[de officiis]

THE VALUE OF LIFE: CONSTITUTIONAL LIMITS ON CITIZENS’ USE OF DEADLY FORCE

F. Patrick Hubbard

21 GEO. MASON L. REV. 623

INTRODUCTION

The shooting of Treyvon Martin by George Zimmerman has focused attention on governmental authorizations of citizens’ use of deadly force.1 This attention is long overdue because many “lawful” killings by citizens occur in situations where the victim posed no threat to the shooter or other persons.2 For example, Gregory Duncan “lawfully” shot Christopher Spicer on Duncan’s porch largely because Spicer was rude and unmannerly.3 In another case, Thomas Cooney and James Hall, two white men, staked out a wooded area where some copper tubing stolen from their business had been hidden.4 When Carlton Williams, an African American, arrived and went straight to the copper, they arrested him at gunpoint. When Williams ran away, Cooney “lawfully” shot and killed Williams with a pistol loaded with hollow-point bullets.5

This Article addresses the constitutionality of private citizens’ “lawful” uses of such deadly violence in terms of three situations: (1) implementing a citizen’s arrest and preventing crime; (2) protecting intrusions into one’s metaphorical “castle”; and (3) preventing crime and “standing one’s ground” in a confrontation with an attacker. Underlying all three situations is the issue of whether a particular use of deadly force (i.e., force sufficient to kill or seriously injure a person) is “legitimate.” Because a
state has a “monopoly of the legitimate use” of deadly force,6 the use of such force is only legitimate if the state has authorized that use. In the American constitutional system of legitimacy, there are limits on the state’s power to authorize the use of deadly force. Because the use of such force can deny a victim’s fundamental constitutional right to life, these limits require that authorizations of deadly force be narrowly tailored to serve a compelling state interest.

As a result, a state is prohibited from overbroad authorizations of the use of deadly force by governmental officials like police. However, some courts have ruled that these limits do not apply to authorizations of private citizens’ use of deadly force.7 This Article argues that, because of the unique nature of the state’s monopoly on deadly force, these cases are wrong. This Article also argues that most states have adopted similar unconstitutionally overbroad authorizations of citizens’ use of deadly force.
Part I of this Article develops the point that life is especially valuable in terms of: (1) the state’s monopoly on deadly force, (2) the two categories of deadly force—prohibited and authorized—and (3) the constitutional concern for the fundamental right to life. Part II addresses the constitutionality of state authorizations of citizens’ use of deadly force to prevent crime and to arrest a fleeing felon. Part III addresses the constitutionality of recent statutory expansions of authorizations of the use of deadly force to protect a citizen’s “castle.” Part IV addresses the right to “stand your ground,” rather than retreat when it is safe to do so, in the face of a deadly threat. Part V considers issues concerning the application of the constitutional limits on the authorization of deadly force. Part VI contains a short concluding summary.

Full Article: http://www.georgemasonlawreview.org/doc ... ersion.pdf

[de officiis]

TOP GUN: THE SECOND AMENDMENT, SELF-DEFENSE, AND PRIVATE PROPERTY EXCLUSION

Ethan T. Stowell

26 Regent U.L. Rev. 521 (2013-14)

INTRODUCTION

Few issues are as hotly contested in America as the Second Amendment to the Constitution. 1 Recently, the Supreme Court examined this issue in-depth due to a complete ban on handgun possession by private individuals within Washington D.C. 2 The regulation of firearms by different localities is nothing new in the United States, 3 and although there have been Supreme Court cases dealing with the Second Amendment, the Supreme Court has remained mostly silent on the issue of textual interpretation and legal meaning, touching on the Second Amendment as briefly as possible before moving on to its general analysis or holding in each case. 4 The Court never performed a detailed analysis until the recent decision and holding in District of Columbia v. Heller. 5 The Heller Court's in-depth analysis of the history of the Second Amendment and the individual right it protects is almost certain to have a ripple effect in future legislation and court cases, despite the dicta of the Court claiming that this decision will not upset years of judicial precedent. 6 That ripple effect was felt by the City of Chicago when the Court struck down its ban on firearms that was similar to the one in Heller. 7

With the right of citizens to keep arms within the home upheld as a constitutional right for the first time by the Supreme Court, it begs inquiry and discussion regarding how state legislatures, Congress, and the courts will begin to examine the second phrase of that well-known Second Amendment clause, "to keep and bear arms." 8 Several states have gone beyond the protection of an individual's right to keep arms in the home and have begun passing laws preventing various private property owners from forbidding the storage of firearms within parked cars on their property. 9 This Note will look at the possible ramifications of these laws in three parts.

Part I of this Note examines the holding of the Court in Heller to determine precisely what right is protected, explicitly and implicitly, by the Second Amendment. Within the examination of Heller, it also surveys the Supreme Court decisions that led up to Heller, including United States v. Cruickshank, 10 Presser v. Illinois, 11 and United States v. Miller. 12 The extension of Heller to the states in McDonald v. City of Chicago is also briefly examined for any nuggets that can help predict the future of legislation and judicial interpretation in this arena.

Part II briefly examines various state laws regarding the "bearing" of arms on public property in the form of concealed and open carry of handguns. The heart of this section reviews the laws of nineteen states that specifically purport to protect the ability of individuals to possess firearms through the passing of various parking lot laws, which allow individuals to store firearms in parked cars.

Lastly, Part III looks to the future of such legislation and discusses the constitutionality of preventing private property owners from excluding the possession of firearms on their property. At the time of this writing there have been few legal challenges to these laws, and none have gone to the Supreme Court. This Article, therefore, will look at how the Supreme Court has weighed other constitutionally protected rights against the rights' of property owners to exclude, specifically when dealing with freedom of speech and expression. Because most United States citizens currently live in urban areas 13 and must venture out of their homes in order to gain the basic necessities for living, 14 several questions must be asked. If the bearing of arms, not just the keeping, is a fundamental right guaranteed by the Constitution, can any one individual, corporation, or other entity effectively prevent a the public from exercising this right outside of their homes when the government cannot? It is unlikely that a right the government is unable to infringe upon can summarily be denied to individuals who merely set foot upon specific private properties. Further, though case law strongly supports the ability of states to expand constitutional rights, is it proper under the Fourteenth Amendment for the federal government to enjoin the states from enforcing private rules regarding the exclusion of firearms?

Full Article: http://issuu.com/regentlaw/docs/delete? ... 968#search

[de officiis]

Take Your Guns To Town: Expanding The Scope Of The Second Amendment Beyond The Home

Jackson Carter

83 Miss. L. J. Supra 1 (2014)

INTRODUCTION

In 2008, the Supreme Court of the United States concluded that the Second Amendment protects an individual right to keep and bear arms as applied to the federal District of Columbia.1 Two years later, the Court incorporated that individual right through the Fourteenth Amendment.2 Yet the statutes struck down in these two cases dealt only with the in-home possession of handguns; the question of whether the United States Constitution protects the right to keep and bear arms outside the home remains undecided. In both of the aforementioned decisions, the Supreme Court found that self-defense is at the core of the Second Amendment. While some lower courts maintain that the Second Amendment disappears at the threshold, others argue that the right to carry a firearm extends outside of a residence.

The courts remain undecided regarding what level of scrutiny should be applied to statutes which ban carrying a firearm in public. This Comment advances the idea that since this right is fundamental, strict scrutiny should be applied with differing applications based on varying state interests.
Drawing on parallels between the First, Second, and Fourth Amendments is a useful tool in constructing the Second Amendment’s boundaries outside the home. For instance, the protections of speech afforded by the First Amendment do not disappear once Americans venture outside their houses. Substantial speech protections exist in public, with even greater protections while inside of the home. Similarly, the Fourth Amendment, with the home also at its zenith, nonetheless provides citizens with substantial protections outside their homes. In keeping with both, the same principle should hold true with the Second Amendment; the right to self-defense should not disappear once outside the home. While the Second Amendment may not protect the open carrying of rocket launchers or bazookas in public, it certainly protects the law-abiding citizen’s right to carry a handgun for personal protection.

This Comment argues that the Second Amendment, while at its apex inside the home, offers substantial protections outside the home. Part I discusses the two seminal Supreme Court cases which set the groundwork for modern Second Amendment jurisprudence—District of Columbia v. Heller and McDonald v. City of Chicago. Part II analyzes two recent lower court decisions that expressly held that the Second Amendment’s core of self- defense protections extends outside the home.

Part III divides the argument into two main sections. Section A is separated into three parts: Text, Policy, and Precedent. The “Text” subsection examines the words of the Second Amendment and distinguishes “bear” from “keep” as two separate and distinct rights. The “Policy” subsection discusses the idea that self-defense is the core of the Second Amendment, with many states having expanded those rights beyond the Castle Doctrine and liberalizing when a law-abiding citizen can use deadly force in public. The “Precedent” subsection argues that comparing the Second Amendment to the First and Fourth Amendments is useful in determining the scope of the right to keep and bear arms. Particularly, both the First and Fourth Amendments offer substantial protections outside the home yet operate at their pinnacle inside the home.

Section B insists that since the Second Amendment is a fundamental right and applies outside the home, courts should apply strict scrutiny to any infringements of the right. Finally, Part IV applies a strict scrutiny test to hypothetical statutes that would prohibit certain types of weapons inside and outside the home.

Full Article: http://mississippilawjournal.org/2014/0 ... -the-home/

[de officiis]

People v. Cisneros, 2014 COA 49 (April 24, 2014)

¶1 Defendant, Leo J. Cisneros, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession with intent to distribute marijuana. He also appeals his enhanced sentence as a special offender. We affirm.

I. Background

¶2 At around 10:30 p.m. on November 26, 2007, defendant was at home with his wife, four children, brother, and mother when there was a knock on his front door. The knock came from a group of five acquaintances who were armed and intending to rob defendant. When defendant’s brother answered the door, one of the robbers pushed the door open and pointed a gun into the apartment. At that point, gunfire erupted. The robbers fired shots into the apartment and defendant grabbed a handgun and fired shots toward the door. Defendant’s ten-year-old daughter, who was caught in the crossfire, was shot in the head and died at the scene. It was not apparent who shot first or who fired the fatal shot.

¶3 Police and emergency services arrived shortly after the shooting. Officers entered the apartment and observed the victim’s body on the floor in the living room, spent shell casings near the body, and a tray on the living room floor containing suspected marijuana. An officer spoke with defendant at the scene and, subsequently, a detective interviewed defendant at the police department several times. During the initial interview with the detective, defendant admitted that he owned a handgun and that he possessed and sold marijuana.

¶4 Police obtained a warrant and searched defendant’s apartment. In addition to the items officers previously observed, the search recovered a bag of marijuana in the victim’s hand, which was thrust into her pocket; $1145 in cash in a bedroom closet; the handgun and another gun on an armoire in a bedroom; a safe that had been under defendant’s bed and which contained sixteen baggies of marijuana; a dresser drawer containing several boxes of live cartridge ammunition; and a gun-cleaning kit found on top of an armoire.

¶5 The People charged defendant with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana – eight ounces or more, and one special offender count under the special offender statute’s deadly weapon provision, Ch. 71, sec. 1, § 18-18-407(1)(f), 1992 Colo. Sess. Laws 362 (hereinafter section 18-18-407(1)(f)). The People alleged that defendant was an armed drug dealer who sold drugs out of his home, thereby placing his daughter in a situation that posed a threat of injury to her life or health and resulted in her death. Regarding the special offender count, the People alleged that defendant possessed the handgun in connection with his drug dealing business.

¶6 The defense contended that the armed robbers, rather than defendant, were responsible for creating the unreasonably dangerous situation in which defendant’s daughter was placed. They also argued that defendant purchased the handgun not to further his drug business but for self-defense, asserting that defendant lived in a dangerous neighborhood and had purchased the gun for protection.

¶7 After a jury trial, defendant was acquitted of the child abuse charge but found guilty of possession with intent to distribute marijuana. The jury also determined that he was a special offender because he “use[d], possess[ed], or ha[d] available for use a deadly weapon during the commission of and in connection with the crime of Possession With Intent to Distribute Marihuana.” Based on the jury’s determination, defendant received an enhanced sentence of fifteen years in the custody of the Department of Corrections. This appeal followed.

II. Section 18-18-407(1)(f)

¶8 Section 18-18-407(1)(f), under which defendant was sentenced, provides that when an offender is guilty of possession of a controlled substance and the prosecution has pursued a special offender count, the jury must determine whether the offender “used, displayed, possessed, or had available for use a deadly weapon.” If so, that determination constitutes an extraordinary aggravating circumstance, and the court is required “to sentence the defendant to the department of corrections for a term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony.” § 18-18-407(1)(f).1

A. Deadly Weapon Instruction

¶9 Defendant contends that the trial court erroneously denied his request for an elemental jury instruction concerning possession of a deadly weapon under section 18-18-407(1)(f) and, instead, provided an instruction that omitted necessary elements. He argues that by refusing to provide an elemental instruction, the court (1) deprived him of his right to have a jury finding on each element of the greater offense; (2) misled the jury into thinking a different standard of proof applied to the special offender instruction because its form differed from the child abuse and possession instructions; (3) failed to “link the right to bear arms to the elemental special offender instruction so the jurors understood [that] liability under the special offender statute is limited”; and (4) confused the jury by providing an instruction that conflicted with the deadly weapon interrogatory on the possession with intent to distribute verdict form.

¶10 Defendant also argues that the verdict form did not require the jury to determine whether the prosecution proved beyond a reasonable doubt that defendant did not possess, display, or use the gun for the purpose of self-defense.

1. Preservation

¶11 Initially, we conclude defendant preserved his claim that an elemental instruction was required by objecting during the jury instruction conference that the deadly weapon special offender provision should be presented “as a separate offense with its own elements.”2 However, as to the contents of the elemental instructions and verdict forms, defense counsel’s proposed language regarding the date of the offense and nexus to the marijuana offense was incorporated. Therefore, we perceive defendant’s allegations of error on appeal to pertain only to the form of the special offender instruction, and not its contents.

2. Analysis

¶12 Section 18-18-407(1)(f) acts as a sentence enhancement provision and not a substantive offense. People v. Whitley, 998 P.2d 31, 33 (Colo. App. 1999). Nevertheless, any fact, other than a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

¶13 The plain language of section 18-18-407(1)(f) indicates that it is triggered only after a felony drug conviction. Its effect, after the fact finder has entered a special finding as to the existence of the special offender circumstance, is to increase the required sentencing range. See Whitaker v. People, 48 P.3d 555, 560 (Colo. 2002) (interpreting the importation provision of section 18-18-407).

¶14 Here, although the trial court denied defendant’s request for an elemental instruction for the special offender count, it instructed the jury to find the presence or absence of the special offender deadly weapon fact only if it found defendant guilty of the underlying offense of possession with intent to distribute:

If you find defendant not guilty of possession with intent to distribute marihuana, you should disregard this instruction and fill out the verdict form reflecting your not guilty verdict. If, however, you find the defendant guilty of possession with intent to distribute marihuana, you should fill out the verdict form reflecting your guilty verdict, and then answer the following question:

On November 26, 2007, did the defendant use, possess, or have available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana?

It is the Prosecution’s burden to prove beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana.

After considering all the evidence if you decide the prosecution has failed to prove beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana, you should indicate “no” on the verdict form that has been provided.

After considering all the evidence if you decide the prosecution has proven beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana, you should indicate “yes” on the verdict form that has been provided.

Your answer to the above question must be unanimous.

¶15 The jury verdict form for the possession with intent to distribute charge contained a special offender interrogatory that read: “Did [defendant] use, possess, or have available for use a deadly weapon during the commission of and in connection with the crime of Possession With Intent to Distribute Marihuana[?]”

¶16 We conclude the verdict form was not misleading because the instructions as a whole properly informed the jury of the elements of the sentence aggravator and the proof beyond a reasonable doubt burden. The special offender instruction required the jury to find,beyond a reasonable doubt, that the weapon was possessed “during the commission of and in connection with” the drug offense, thereby notifying the jury of the standard of proof and identifying a nexus requirement between the weapon and the drugs. Thus, the instructions contained the elements that the jury was required to find, although not in an elemental format. No error has been shown.

B. Sufficiency of the Evidence

¶17 Defendant also asserts that the trial evidence was legally insufficient to prove he possessed or used the gun on November 26, 2007, for the purpose of facilitating the drug offense and not for self-defense. We conclude the evidence was sufficient to support the jury’s determination that defendant “used, displayed, possessed, or had available for use a deadly weapon” in connection with the commission of a drug offense.

¶18 In addressing a claim of insufficient evidence, we must uphold a conviction if the verdict is supported by substantial evidence, viewed in the light most favorable to the prosecution. Mata-Medina v. People, 71 P.3d 973, 983 (Colo. 2003). Evidence is sufficient when a rational trier of fact might accept the evidence, taken as awhole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Warner, 251 P.3d 556, 564 (Colo. App. 2010).

¶19 After trial, defendant moved for a judgment of acquittal on the grounds that there was no “showing of purposive conduct with that gun linking it to the marijuana and his possession of it with intent to distribute.” The trial court denied his motion, and we agree with that determination.

¶20 Here, it was undisputed that defendant possessed a handgun. And, as the trial court noted, the People presented evidence that (1) one of defendant’s stated purposes in owning the gun was to protect his property, which included nearly one pound of marijuana he held with an admitted intent to distribute it; and (2) the gun was found near a tray of marijuana and within feet of defendant, thus showing that this gun was available for use. Accordingly, there is sufficient evidence to support the jury’s findings that defendant possessed both a controlled substance and a deadly weapon, and to infer a nexus between the controlled substance and the weapon. See People v. Tweedy, 126 P.3d 303, 308 (Colo. App. 2005) (close spatialproximity between a weapon and drugs is sufficient for the jury to infer the required nexus).

C. Constitutionality of Section 18-18-407(1)(f)

1. Section 18-18-407(1)(f) Does Not Violate the Right to Bear Arms in Self-Defense

¶21 Defendant contends that section 18-18-407(1)(f) violates the fundamental Second Amendment right to bear arms in self-defense, as recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), and also article II, section 13 of the Colorado Constitution. Because we conclude that the United States and Colorado Constitutions do not protect the unlawful purpose of possessing a firearm in furtherance of a drug offense, we disagree that section 18-18­407(1)(f) infringes on the constitutionally protected right to bear arms.

¶22 Prior to trial, the trial court denied defendant’s motion to declare section 18-18-407(1)(f) unconstitutional on grounds that it infringed on his fundamental state and federal rights. According to defendant’s argument below and on appeal, he falls within the “central component” of the Second Amendment, which is the individual right to bear arms in self-defense. He asserts that“constitutional rights are not reserved only for law-abiding people,” and that, regardless, he was not a criminal when he used the handgun for self-defense. He further argues that article II, section 13 of the Colorado Constitution provides even greater protection for the right to bear arms than the Second Amendment. Proceeding from the premise that he has a fundamental right to possess a weapon for self-defense, defendant urges that section 18-18­407(1)(f) must be subject to strict scrutiny, which he contends it cannot survive.

¶23 We review the constitutionality of statutes de novo. Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007). Statutes are presumed to be constitutional and the party challenging a statute’s constitutionality must show the statute is unconstitutional beyond a reasonable doubt. Id.

a. United States Constitution

¶24 First, we consider and reject defendant’s contention that section 18-18-407(1)(f) prohibits conduct that is protected under the Second Amendment to the United States Constitution.

¶25 The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of thepeople to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

¶26 In Heller, the Supreme Court held for the first time that the Second Amendment secures an individual right to keep and bear arms. 554 U.S. at 595; see also McDonald v. City of Chicago, 561 U.S. __, 130 S. Ct. 3020 (2010) (extending the Second Amendment’s reach to the states). The Court explained that, “whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635. The Second Amendment right as identified in Heller is limited in scope and subject to some regulation. Id. at 625. For example, the Heller court identified a non-exhaustive, illustrative list of “longstanding prohibitions on the possession of firearms” as “presumptively lawful regulatory measures.” Id. at 626-27 n.26.

¶27 Numerous federal courts have interpreted Heller in upholding the deadly weapon provision’s federal counterpart, 18 U.S.C. § 924(c) (2014), which provides for a five-year prison sentence for any defendant who uses or carries a firearm in furtherance of a drug trafficking crime. See United States v. Bryant, 711 F.3d 364, 368-70 (2d Cir. 2013) (addressing 18 U.S.C. § 924(c) in light of Heller and discussing other federal courts’ decisions that have recognized limits on the exercise of Second Amendment rights under Heller).

¶28 In Bryant, for example, the United States Court of Appeals for the Second Circuit held that a defendant’s conviction for unlawful possession of a firearm in furtherance of a drug trafficking crime did not violate his Second Amendment right to possess a firearm for self-defense in his home. Id. at 370. The court interpreted Heller as providing “an implicit limitation on the exercise of the Second Amendment right to bear arms for ‘lawful purpose,’” and a limitation on ownership to that of “‘law-abiding, responsible citizens.’” Id. at 369 (quoting Heller, 554 U.S. at 628, 630).

¶29 We agree with the federal circuit courts that the Second Amendment entitles citizens to keep and bear arms for self-protection, but not for all self-protection. Id.; see also United States v. Jackson, 555 F.3d 635, 636 (7th Cir. 2009). Here, defendant was distributing illegal drugs out of his home. Although defendant contends that he lived in a dangerous neighborhood and purchased the handgun for self-defense, “his decision to operate an illegal[drug] business [out of his home] also matters.” Jackson, 555 F.3d at 636. In Jackson, the court addressed a challenge to 18 U.S.C. § 924(c) on grounds similar to those presented in this case. Id. at 635. We find the court’s reasoning in that case persuasive:

The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer’s stash. . . . Suppose a . . . statute said: “Anyone who chooses to possess a firearm in the home for self-protection is forbidden to keep or distribute illegal drugs there.” Such a statute would be valid . . . [a]nd if [the legislature] may forbid people who possess guns to deal drugs, it may forbid people who deal drugs to possess guns.

Id. at 636.

¶30 We conclude that the fundamental right conferred under the Second Amendment is the right for law-abiding, responsible citizens to bear arms for lawful purposes. Because section 18-18-407(1)(f) applies only to possession of a firearm in connection with a person’s commission of a felony drug offense, it does not apply to law-abiding citizens and, thus, does not infringe on the SecondAmendment right to bear arms. See id. (“there is no constitutional problem with separating guns from drugs”).3

b. Colorado Constitution

¶31 We next consider whether section 18-18-407(1)(f) implicates the right to bear arms as guaranteed by the Colorado Constitution, and hold that it does not.

¶32 Colorado’s constitution includes a provision in its bill of rights establishing a right to keep and bear arms in defense of one’s home, person, and property:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

...

2. Section 18-18-407(1)(f) Is Not Unconstitutionally Overbroad

¶38 We next address defendant’s argument that section 18-18­407(1)(f) is unconstitutionally overbroad on its face and as applied to him. Defendant argues that “[t]he deadly weapon provision, as currently interpreted [in Colorado], criminalizes the use or possession of a gun unrelated to a drug transaction and is, thus, unconstitutional.” He also contends that the nexus requirement, as articulated in Atencio, is insufficient to protect the right to bear arms in self-defense because “people are adjudicated special offenders even if they possess a gun for self-defense.”

¶39 Whether a statute is unconstitutionally overbroad is a question of law that we review de novo. People v. Martinez, 165 P.3d 907, 912 (Colo. App. 2007). “A statute which proscribes conduct which can be prohibited under the police power of the state is overbroad if it also purports to proscribe conduct which cannot validly be prohibited under that power.” People v. Sequin, 199 Colo. 381, 384, 609 P.2d 622, 624 (1980). A statute is facially overbroad if it sweeps within its reach constitutionally protected, as well as unprotected, activities. Robertson, 874 P.2d at 330. However, facial challenges are disfavored and a person to whom a statute was constitutionally applied “‘will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.’” Sequin, 199 Colo. at 384, 609 P.2d at 624 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)); see also United States v. Salerno, 481 U.S. 739, 745 (1987) (noting the Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment). Because we conclude that the deadly weapon provision was constitutionally applied in this case, we decline to address defendant’s facial challenge.

¶40 Here, we perceive no overbreadth in the statute as applied. See Sequin, 199 Colo. at 384, 609 P.2d at 624. The conduct here could validly be prohibited under the state’s police power; it did not involve a substantial amount of activity that is constitutionally protected.

¶41 First, as previously discussed, the right to bear arms may be regulated by the state under its police power in a reasonable manner. Id. Section 18-18-407(1)(f) does not implicate the right of a law-abiding citizen to bear arms for lawful purposes — it applies only to persons who possess guns during the commission of a drug offense. Once defendant possessed drugs with the intent to sell them in his home and had a gun available for use in connection with that offense, he was no longer simply a law-abiding citizen using the handgun for a lawful purpose.

¶42 Section 18-18-407(1)(f) requires a relationship between the deadly weapon and the drug offense. Atencio, 878 P.2d at 149-50 (The language of section 18-18-407(1)(f), “used, displayed, possessed, or had available for use a deadly weapon,” includes “nexus terms” and “[t]hus, by the express language of the statute itself, the People are required to show some nexus between the deadly weapon and the drug offense upon which the enhanced sentence is based.”). Consequently, the restriction in section 18­18-407(1)(f) does not implicate the constitutionally protected right of a law-abiding citizen to bear arms for lawful purposes because the possession or use of the deadly weapon must be connected to the illegal drug offense.

¶43 Here, defendant argues that his possession of the handgun upon which his enhanced sentence was based was unrelated to the drug offense, and that the special offender conviction therefore punished him for exercising his right to possess and use a gun in self-defense. However, by returning the special verdict form containing nexus language, the jury found, contrary to defendant’s contentions, that his possession of the handgun was related to his drug offense. Both the special offender instruction and jury verdict form directed the jury to determine whether defendant “use[d], possess[ed], or ha[d] available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana.” Thus, because defendant possessed a deadly weapon in connection with his commission of a felony drug offense, his conviction under section 18-18-407(1)(f) did not infringe on any constitutionally protected activities, and as applied here, is not unconstitutionally overbroad.

3. Section 18-18-407(1)(f) Is Not Unconstitutionally Vague

¶44 We also reject defendant’s assertion that section 18-18­407(1)(f) is unconstitutionally vague. A statute is unconstitutionally vague if it: (1) does not give fair notice of the conduct prohibited and (2) does not supply adequate standards for those enforcing it in order to prevent arbitrary and discriminatory enforcement. See People v. Holmes, 959 P.2d 406, 414 (Colo. 1998).

¶45 Section 18-18-407(1)(f) requires a finding that the defendant “used, displayed, possessed or had available for use, a deadly weapon.” This language is the same language held valid against a vagueness challenge by a division of this court in Atencio. 878 P.2d at 150-51 (concluding that section 18-18-407(1)(f) was not unconstitutionally vague with regard to either the definition of “deadly weapon” or its prohibition on the use, display, possession, or availability of use of such weapons). There, the enhanced sentence was based on firearms found in the defendant’s residence. The division concluded that section 18-18-407(1)(f) was not vague with respect to the term “deadly weapon” because firearms arecapable of producing death or bodily harm in the manner they are used or intended to be used. Id. at 150. The division also reasoned that the ordinary and commonplace definitions of the terms “used,” “displayed,” “possessed,” or “available for use” provide fair notice and are in accord with previous decisions of the court of appeals and supreme court. Id. at 151. We agree with the reasoning in Atencio and conclude that section 18-18-407(1)(f) is facially valid for the same reasons.

¶46 Defendant’s vagueness challenge to section 18-18-407(1)(f) as applied to him also fails. The terms of the provision provide fair notice of the conduct prohibited and set forth adequate standards for enforcement so as to prevent arbitrary application.

¶47 Defendant urges that because the robbers possessed firearms while committing a separate drug offense prior to the robbery, they too should have been charged with possession of a controlled substance and subjected to the deadly weapons provision, and the prosecution’s failure to do so was arbitrary and discriminatory. We are not persuaded — the prosecution’s decision in this case regarding whether to charge the robbers as special offenders does not establish that the statute is unconstitutionally vague or wasarbitrarily or discriminatorily applied. See People v. Kurz, 847 P.2d 194, 196 (Colo. App. 1992) (noting that “[a] district attorney has wide discretion in determining who to prosecute for criminal activity and on what charge”). Defendant was convicted of a controlled substance offense and the jury also determined that he used, possessed, or had available for use a deadly weapon. Thus, defendant was properly subject to an enhanced sentence pursuant to section 18-18-407(1)(f).

D. Defendant Was Not Entitled to a Right to Bear Arms Instruction

¶48 Defendant next contends that the trial court erred by refusing his tendered right to bear arms instruction. We perceive no error.

¶49 The defendant tendered, and the court rejected, the following instruction regarding the right to bear arms:

Constitutional Right to Keep and Bear Arms — Defendant not a Prohibited Person — Firearms Registration

The Second Amendment to the United States Constitution and Article II, Section 13 of the Colorado Constitution guarantee to [defendant] the right to possess, carry, and use a firearm, including a handgun, in defense of his home and for the safety of himself and his family.

You are instructed that on the date charged in this case [defendant] was not prohibited from purchasing, owning, possessing, or using a firearm, including a handgun, by virtue of having been convicted of any criminal offense under state or federal law.

You are also instructed that there is no legal requirement in the State of Colorado or under federal law to register a handgun.

¶50 We conclude that the trial court did not abuse its discretion by refusing this tendered instruction.

¶51 A defendant’s use or possession of a gun can simultaneously be for the purpose of self-defense against intruders, and also for the purpose of protecting a drug supply from intruders. Even if the use of the gun for self-defense would ordinarily be constitutionally protected, the simultaneous use of the gun to protect drugs is punishable through an enhanced sentence for drug possession with the intent to distribute.

¶52 Here, the jury would not have been able to find that the weapon was used solely for a constitutional self-defense purpose, because in order to make the special offender finding, the jury was required to find that the gun was used, possessed, or available for use during the commission of and in connection with the crime of possession with intent to distribute marihuana. Thus, the nexus requirement eliminated any violation of a defendant’s right to bear arms because a defendant has no such right “in connection with” drug-dealing. Even if defendant kept or used his gun to protect his family, he was subject to enhanced punishment because it was also connected to his possession with intent to distribute marijuana.

. . .

¶54 In light of our prior determination that defendant had no state or federal constitutional right to bear arms during the commission of his drug offense, we find no error in the court’s denial of defendant’s proposed instruction on the right to bear arms.

[de officiis]

Louisiana v. Webb, NO. 2013-KK-1681 (La. Supreme Court May 7, 2014)

We granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const. art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.

According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional. Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict judicial scrutiny, and the entire statute must be declared unconstitutional.

We disagree. Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.

Under longstanding constitutional authorities, on its face, the challenged statute does not restrict the legitimate exercise of the fundamental right to bear arms. Instead, the statute enhances the penalty for possessing illegal drugs while in carrying a firearm. When a defendant carries a firearm while possessing illegal drugs, La. R.S. 14:95(E) is facially constructed such that the possession of a firearm under those circumstances is illicit and is made illicit as a result of defendant's own illegal activities. Further, the illicit possession of a firearm may be used to enhance the penalty for possessing illegal drugs. Our own jurisprudence, and that of the United States Supreme Court, demonstrates the existence in La. R.S. 14:95(E) of a compelling state interest, which is narrowly tailored to restrict firearm possession by those who possess illegal drugs.

The legislature's criminalization of the possession of illegal drugs with the illicit possession of a firearm, therefore, passes strict judicial scrutiny. Thus, on its face, there is nothing in La. R.S. 14:95(E) that requires this court to declare that statute to be unconstitutional.

Full decision: http://www.lasc.org/opinions/2014/13KK1681.opn.pdf

[de officiis]

Heller v. District of Columbia, Civil Action No. 08-1289 (JEB), (D.D.C. May 15, 2014)

Opinion Link: https://ecf.dcd.uscourts.gov/cgi-bin/sh ... 8cv1289-83

JUDGES: JAMES E. BOASBERG, United States District Judge.

MEMORANDUM OPINION

The District of Columbia knows gun violence. Notorious for a time as the "murder capital" of the United States, it recorded over 400 homicides annually in the early 1990s — more than one for every 1500 residents. While safety in the District has improved markedly in this millennium, residents will not soon forget the violence of the more recent past: the wounding of seven children outside the National Zoo on Easter Monday in 2000, the triple murder at Colonel Brooks' Tavern in 2003, the five killed in the South Capitol Street shootings in 2010, and the twelve shot to death inside the Washington Navy Yard only a few months ago. These number just a few of the lives lost to guns in our city's recent memory.

In an effort to stem this violence and promote public safety, the District of Columbia has, over the last several decades, passed some of the most restrictive gun laws in the nation. In fact, it was the District's handgun ban that the Supreme Court struck down in District of Columbia v. Heller (Heller I), 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), where the Court concluded that the Second Amendment protected handgun possession for self-defense in the home. Seeking to accommodate that constitutional right while also protecting the community from gun violence, the District responded by enacting a law that banned assault weapons and large-capacity magazines but merely imposed registration requirements for handguns and long guns. Plaintiffs believe that such a law still infringes their Second Amendment rights and have brought this action to challenge it.

A prior district court initially upheld the constitutionality of the law, but on appeal, the D.C. Circuit offered a mixed response. Although it affirmed the bans on assault weapons and large-capacity magazines, as well as the handgun-registration requirement, it remanded the case to this Court to permit the parties to develop a more thorough factual record in relation to the lion's share of the regulations. Having done so, both sides now cross-move for summary judgment, asking the Court to consider their constitutional arguments in light of the new evidence adduced.

The Second Amendment requires the District to justify its firearm-registration requirements by presenting substantial evidence that they will achieve important governmental interests and that they are narrowly tailored to such ends. The Court ultimately concludes that the government has met that burden and that the regulations pass constitutional scrutiny.

The people of this city, acting through their elected representatives, have sought to combat gun violence and promote public safety. The Court finds that they have done so in a constitutionally permissible manner.

I. Background

In 2008, the Supreme Court struck down the District of Columbia's handgun law as violating the Second Amendment right to keep and bear arms. That landmark decision, Heller I, announced that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635. The Court thus voided the District's total ban on handgun possession as well as its requirement that D.C. residents store their lawfully owned firearms disassembled or bound by a trigger lock. See id. at 574-75. Because a handgun is "the quintessential self-defense weapon" and because storing firearms disassembled or locked "makes it impossible for citizens to use them for the core lawful purpose of self-defense," the Court found that these two regulations contravened the Second Amendment. Id. at 629-30, 635.

A few months after Heller I, the D.C. Council enacted the Firearms Registration Amendment Act of 2008, which amended what remained of the District's gun laws in order to create a new and constitutionally compliant scheme for regulating firearms. See D.C. Law 17-372; 56 D.C. Reg. 3438 (May 1, 2009 The Council adjusted this scheme again in 2012. See D.C. Law 19-170; 59 D.C. Reg. 5691 (May 15, 2012). When the Council considered both the 2008 FRA and the 2012 amendments, it held several days of public hearings during which it received oral and written testimony supporting and opposing the legislation. See Def. Mot., Exh. A (Appendix) at 33-49 (Council of the District of Columbia Committee on Public Safety and the Judiciary, Report on Bill 17-1843, "Firearms Registration Amendment Act of 2008") ("2008 Report"); id. at 120-48 (Council of the District of Columbia Committee on the Judiciary, Report on Bill 19-614, "Firearms Amendment Act of 2012") ("2012 Report").

The FRA establishes a city-wide gun registry, which requires that all gun owners in the District individually register each of their firearms with the city government. See D.C. Code § 7-2502.01. It then ties a host of obligations, limitations, and prohibitions to that basic registration mandate. See § 7-2502.02-.11.

More specifically, the regulatory regime adopted by the Council works as follows: To possess a firearm within the District, the owner must register that weapon with the city. See § 7-2502.01(a). This basic registration requirement applies equally to handguns and to long guns. See § 7-2501.01(9) (defining "firearm" without distinguishing between handguns and long guns). The firearm-registration system is run by the District's Metropolitan Police Department, which processes registrants' applications and maintains a database of firearm registrations. See Def. Mot., Exh. B (Declaration of Lieutenant Jon Shelton), ¶¶ 3, 9, 13. The District bars the registration — and thus the possession — of certain kinds of firearms, including sawed-off shotguns, machine guns, and assault weapons. See § 7-2502.02(a). The District also bars blind people from registering — and thus possessing — any firearm at all. See § 7-2502.03(a)(11). Finally, the District does not allow gun owners to register more than one pistol per month, although a new D.C. resident may grandfather in multiple pistols that he owned prior to moving here. See § 7-2502.03(e). Given that this provision refers only to "pistols," the limitation presumably does not apply to other types of firearms, such as rifles or shotguns.

To register a firearm, the owner must appear in person at MPD headquarters with the weapon he seeks to register. See § 7-2502.04(c). He must be photographed and fingerprinted, see § 7-2502.04(a) & (b), complete a background check, see § 7-2502.03(a), and provide, among other things, his current place of employment and his residences going back five years. See § 7-2502.03(b). The background check queries a number of sources, including the Federal Bureau of Investigation, the Washington Area Law Enforcement System, the National Criminal Information Center, and the D.C. Superior Court. See Shelton Decl., ¶¶ 11-12. According to MPD policy, "personally identifiable information provided by applicants on firearms-registration forms is exempt from disclosure to the public . . . as a clearly unwarranted invasion of personal privacy." Id., ¶ 13. The prospective registrant must also take and pass a test demonstrating knowledge of the District's firearms regulations as well as complete a firearms-training and safety course provided free of charge by the District. See D.C. Code § 7-2502.03(a)(10) & (13)(A). After the registrant has passed the test and completed the course, he need not do so again in order to register additional weapons. See id. Lastly, the registrant must pay a fee to reimburse the District for its registration expenses. See § 7-2502.05(b).

The owner of a registered firearm must keep the registration certificate with him whenever he is in possession of the weapon and he must produce it upon the demand of a law enforcement officer. See § 7-2502.08(c). If the firearm is lost, stolen, or destroyed, he must immediately notify MPD; if he sells or transfers the weapon, he must notify District police within two days; and if he changes his name or address, he must notify the police within 30 days. See § 7-2502.08(a). Registration certificates expire after three years, so gun owners must continually renew the certificates for the firearms in their possession. See § 7-2502.07a. Penalties for violating the District's registration requirements may include fines, revocation of registration certificates, prohibition from possessing firearms, and prison time. See §§ 7-2502.08(e) & 7-2507.06.

Skeptical of the lawfulness of this post-Heller I regulatory regime, Plaintiffs sued the District. They claimed, first, that the D.C. Council lacked the regulatory authority to enact this scheme and, second, that the regulations once again violated the Second Amendment. See Second Am. Compl., ¶¶ 68-80. Judge Ricardo Urbina granted summary judgment for the District on both points. See Heller v. District of Columbia, 698 F. Supp. 2d 179, 181 (D.D.C. 2010).

On appeal, the D.C. Circuit rejected Plaintiffs' first argument but did not completely decide the second, remanding the case to this Court for further consideration. See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1264, 399 U.S. App. D.C. 314 (D.C. Cir. 2011). On the question of the Council's regulatory authority, the court found that the District of Columbia Home Rule Act, D.C. Code § 1-201.01 et seq., empowered the Council to enact the challenged gun laws. See Heller II, 670 F.3d at 1251. On the Second Amendment question, the court upheld the District's basic registration requirement as applied to handguns as well as its ban on assault weapons and large-capacity magazines. See id. at 1253-58, 1260-64. As to the remaining aspects of the regime, however — the basic registration requirement as applied to long guns and the other requirements as applied to all firearms — the panel majority found the record "inadequate," noting that the District had failed "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." Id. at 1258-59. The D.C. Circuit therefore vacated the judgment below and remanded the case for this Court, Judge Urbina having since retired, "to develop a more thorough factual record" and so that the District could present "some meaningful evidence" to justify these laws. Id. at 1259-60 (quoting Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 664-68, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994)).

Following the Heller II decision, the parties engaged in discovery. The District provided opinion testimony in support of its gun laws from four expert witnesses: Cathy L. Lanier, Mark D. Jones, Joseph J. Vince, Jr., and Daniel W. Webster. See Def. Mot., Exhs. G, D, H, and I (Declarations of Cathy L. Lanier, Mark D. Jones, Joseph J. Vince, Jr., and Daniel W. Webster). Plaintiffs presented one expert witness opposing the law: Gary Kleck. See Pl. Mot., Exh. 7 (Declaration of Gary Kleck, Ph.D.). As this Opinion cites extensively to the conclusions of these witnesses, their impressive credentials are worth recounting in some detail.

The District's first expert witness, Chief Lanier, has served since 2007 as the Chief of Police of D.C.'s Metropolitan Police Department. See Lanier Decl., ¶ 4. She has worked for MPD since 1990. See id. Lanier received her Bachelor's and Master's Degrees from Johns Hopkins University, and a Master's Degree in National Security Studies from the Naval Postgraduate School in Monterey, California. See id., ¶ 9. She is also a graduate of the FBI National Academy and the federal Drug Enforcement Administration's Drug Unit Commanders Academy. See id. Prior to her service as Chief, Lanier worked as Commander of MPD's Special Operations Division, as the first Commanding Officer of MPD's Office of Homeland Security and Counter-Terrorism, and as a uniformed patrol officer, including time as Commander of D.C.'s Fourth District. See id., ¶¶ 6-8. As Chief, Lanier has spearheaded a number of efforts to prevent gun violence in the District, including the reinstitution of MPD's Gun Recovery Unit and the creation of a "collaborative information-sharing process among local criminal justice agencies, including police, prosecutors, Superior Court, . . . the Court Services and Offender Supervision Agency . . . and the D.C. Pretrial Services Agency." Id., ¶ 5. Lanier testified before the D.C. Council Committees considering the gun laws at issue here in both 2008 and 2012. See id., ¶ 3.

The District's next witness, Mark Jones, is currently employed as a Senior Law Enforcement Advisor at the University of Illinois's Crime Lab. See Jones Decl., ¶ 3. Before joining the University, Jones spent twenty years as an ATF agent. See id. He received his Bachelor's in Criminal Justice from the University of Illinois and his Master's in Management at Johns Hopkins. See id. at 15. Jones's most recent assignment was as the Regional Firearms Advisor to several Central American governments, which he helped develop policies to reduce gun violence. See id., ¶¶ 3-4. Based in El Salvador, Jones "led a team of experts who conducted detailed assessments of the regulatory and enforcement environments in six of the seven countries of Central America, . . . [and then] formulate[d] a training plan to help the public security agencies in each of those countries to better focus and use their resources to deter illegal small-arms trafficking." Id., ¶ 4. Before that, Jones served in a variety of capacities at ATF, including seven years in the District. See id., ¶ 3. Jones has participated in over 100 arrests involving firearms-related crimes and in investigations across the country and around the world. See id. Jones was trained as a firearms instructor by the U.S. Diplomatic Security Service and later received additional firearms training at the Federal Law Enforcement Training Center. See id., ¶ 7. He has since trained numerous law-enforcement personnel in the safe use, care, and storage of firearms. See id.

Joseph Vince heads the Criminal Justice Program at Mount St. Mary's University, where he teaches courses on criminal justice and law enforcement. See Vince Decl., ¶ 4. He is also the President of Crime Guns Solutions, LLC, a consulting firm that provides training and advice to law enforcement on how to reduce gun-related crime. See id. Vince received his Bachelor's in Criminal Justice from Youngstown State University and his Master's in Criminal Justice from the University of Detroit. See id. at 13. He spent nearly 30 years as an agent with ATF, where he served as Chief of the Bureau's Firearms Enforcement Division and as Chief of its Crime Gun Analysis Branch. See id., ¶ 4. Given his expertise in investigating gun-related crime, Jones was appointed as the U.S. representative to the United Nations Working Group on Small Arms Proliferation and also served as a member of the U.S. negotiating team that, under the direction of the Office of National Drug Policy, attempted to reach an agreement with Mexico to halt the cross-border trade in drugs and guns. See id., ¶ 5. Jones is a member of the Firearms Committee of the International Association of Chiefs of Police and the American Bar Association's National Task Force on Stand Your Ground Laws. See id., ¶ 6. He has testified as an expert on firearms-related crime in numerous cases and provided a statement to D.C.'s Committee on the Judiciary when it considered amendments to the District's gun laws in 2012. See id., ¶¶ 3, 6-7.

The District's last witness, Daniel Webster, is the Director of the Johns Hopkins Center for Gun Policy. See Webster Decl., ¶ 5. He also serves as Deputy Director for Research at the Johns Hopkins Center for the Prevention of Youth Violence. See id. Webster received his Bachelor's Degree from the University of Northern Colorado, his Master's in Public Health from the University of Michigan, and his Doctorate in Health Policy and Management from Johns Hopkins. See id. at 15. At the Johns Hopkins School of Public Health, Webster is a tenured Professor of Health Policy and Management; he also has a joint appointment in the School of Education's Division of Public Safety Leadership. See id., ¶ 7. He teaches graduate courses on violence prevention as well as research and evaluation methods, and his research over the past 23 years has focused primarily on gun-related injuries and violence. See id., ¶¶ 6-7. Webster has published nearly 70 articles in peer-reviewed, scientific journals, the majority of which address gun-related violence and its prevention. See id., ¶ 8. He is the lead editor of the book Reducing Gun Violence in America: Informing Policy with Evidence and Analysis, to which he contributed two chapters as a lead author and three chapters as a co-author. See id. Webster provided a written statement and oral testimony to the D.C. Committee on the Judiciary when it considered amendments to the District's gun laws in 2012. See id., ¶ 3.

Finally, Plaintiffs' expert witness, Gary Kleck, is a Professor of Criminology and Criminal Justice at Florida State University. See Kleck Decl., ¶ 6. Kleck received his Bachelor's, Master's, and Doctorate in Sociology all at the University of Illinois. See id. at 56. He has worked as a consultant to the National Research Council, the National Academy of Sciences Panel on the Understanding and Prevention of Violence, and Canada's Department of Justice. See id., ¶ 10. He has also served as a member of the U.S. Sentencing Commission's Drug-Violence Task Force and of the Institute of Medicine and National Research Council Committee on Priorities for a Public Health Research Agenda to Reduce the Threat of Firearm-Related Violence. See id. Kleck has authored or co-authored four books on guns and violence, among them Point Blank: Guns and Violence in America, Targeting Guns, The Great American Gun Debate, and Armed. See id., ¶ 7. He has also published scholarly research in numerous professional journals, addressing subjects such as the relationship between crime rates and gun ownership, gun-control laws, and gun trafficking. See id., ¶¶ 8-9.

As both sides have now cross-moved for summary judgment, the Court turns to the substance of their arguments.

…

III. Analysis

To analyze Plaintiffs' Second Amendment challenge to the District's gun laws, the Court begins by defining the appropriate constitutional inquiry. This is no easy task, as the parties dispute exactly what is required of the District in order for it to demonstrate the lawfulness of its firearms regulations. After setting forth the constitutional framework, the Court will then apply this standard to each challenged provision of the D.C. scheme.

A. The Second Amendment Inquiry

1. The Constitutional Framework

In Heller II, the D.C. Circuit followed several of its sister circuits in adopting a two-step approach to resolving Second Amendment cases. See Heller II, 670 F.3d at 1252 (citing Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 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); and United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)). It proceeds as follows:

In the first step of the inquiry, the Court asks whether the challenged law "impinges upon a right protected by the Second Amendment." Id. A historically "longstanding" regulation is "presumed not to burden conduct within the scope of the Second Amendment." Id. at 1253 (citing Heller I, 554 U.S. at 626-27 & n.26 and McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3047, 177 L. Ed. 2d 894 (2010)). That presumption is based on the notion that a gun regulation that has "long been accepted by the public . . . is not likely to burden a constitutional right" and therefore that a court may assume that "the activities [it] cover . . . [are] not protected from regulation by the Second Amendment." Id. "A plaintiff may rebut this presumption," however, "by showing the regulation does have more than a de minimis effect upon his [Second Amendment] right." Id. If the court determines that a challenged law does not burden the right to bear arms — either because it is longstanding and the plaintiff has failed to rebut the presumption of Second Amendment compatibility or because it simply does not burden the right — then there is no constitutional violation. The court may uphold the law without going further.

If, instead, the challenged law does burden the Second Amendment right, then in the second step of the analysis, the Court must determine "whether the provision passes muster under the appropriate level of constitutional scrutiny." Id. at 1252. Because the Supreme Court has not yet stated what level of scrutiny should apply to laws that burden the right to bear arms, see Heller I, 554 U.S. at 628 & n.27; Heller II, 670 F.3d at 1256, the Heller II panel considered whether strict or intermediate scrutiny was appropriate for judicial review of the gun-registration laws at issue here. See Heller II, 670 F.3d at 1256-58. Comparing the Second Amendment to the First, the panel reasoned that "the level of scrutiny . . . [should] depend[] on the nature of the conduct being regulated and the degree to which the challenged law burdens that right." Id. at 1257 (internal quotation marks and citations omitted). Because "registration requirements do not severely limit the possession of firearms" and "none of the District's registration requirements prevent[] an individual from possessing a firearm in his home or elsewhere," the D.C. Circuit determined that the more deferential, intermediate level of scrutiny was the better choice. Id. at 1257-58 (internal quotation marks and citation omitted). This Court is bound to follow that lead.

2. The Meaning of "Intermediate Scrutiny"

On all of this, the parties are in agreement. Their disagreement centers on what "intermediate scrutiny" actually means.

The basic language used to describe the standard is familiar enough: To satisfy intermediate scrutiny, the District must show that the challenged regulation is "substantially related to an important governmental objective." Id. at 1258 (quoting Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988)). In other words, "the District must establish a tight 'fit' between the registration requirements and an important or substantial governmental interest, a fit 'that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective." Id. (quoting Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 480, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989)). "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." Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). "[T]he fit between the challenged regulation and the asserted objective [need only] be reasonable, not perfect." Schrader v. Holder, 704 F.3d 980, 990, 403 U.S. App. D.C. 284 (D.C. Cir. 2013).

So far, so good. The parties part ways, however, on what exactly the District must do to survive this inquiry — in other words, what it must show to establish that the challenged gun regulations are "substantially related" to its important interests.

According to the District, it need only provide "'some meaningful evidence' demonstrating that the challenged registration requirements 'can reasonably be expected to promote' an important government interest." Def. Reply at 6 (quoting Heller II, 670 F.3d at 1259) (emphasis added). The District further contends that the "meaningful evidence" it provides "is not required to . . . [be] empirical data, but rather may . . . [comprise] any evidence that is 'reasonably believed to be relevant.'" Id. at 7 (quoting Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986)) (emphasis added).

Plaintiffs claim, by contrast, that the District must establish that the challenged regulations will "actually achieve the governmental interest to a significant degree." Pl. Reply at 6 (emphasis added); see also Pl. Mot. at 48. Plaintiffs, contend, furthermore, that the District must provide "empirical evidence" to substantiate its argument — "[t]he test is evidentiary and objective, and is not dependent on unsupported 'expectations.'" Id. at 7.

This may appear a subtle point. But because it will set the terms of the Court's merits analysis, it is worth considering in detail. There are essentially two issues in contention here. First, whether the District need only show that the D.C. Council "could reasonably believe that the laws" would serve its important interests or if it must establish that the laws "will have th[o]se effects." Def. Reply at 2; Pl. Reply at 6 (emphasis added). And second, whether the District may meet its burden by citing to sources other than empirical data or if it is limited exclusively to statistical evidence. Both parties have excised snippets of language from prior cases that seem to support their side over the other. At the end of the day, however, the District has the better of the argument on both issues.

a. Predictions versus Proof

As to the first point, the Supreme Court has stated explicitly that the government satisfies intermediate scrutiny if its predictions about the effect of a challenged law are rational and based on substantial evidence — it need not establish with certitude that the law will actually achieve its desired end. When applying the intermediate-scrutiny standard, "[t]he question is not whether [the legislature], as an objective matter, was correct[;] . . . [r]ather, the question is whether the legislative conclusion was reasonable and supported by substantial evidence in the record." Turner II, 520 U.S. at 211; see also Turner I, 512 U.S. at 666 (to survive intermediate scrutiny, government must show that "in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence"). The Court has emphasized that "[the legislature's] predictive judgments are entitled to substantial deference" because "ound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable." Turner I, 512 U.S. at 665 (emphasis added); see also Turner II, 520 U.S. at 212 ("Congress is allowed to make a rational predication [sic] of the consequences of inaction and of the effects of regulation in furthering governmental interests.") (internal quotation mark and citation omitted); 84 Video/Newsstand, Inc. v. Sartini, 455 Fed. Appx. 541, 551 (6th Cir. 2011) ("This court has repeatedly held that [under intermediate scrutiny] governments are not required to demonstrate empirically that [their] proposed regulations will or are likely to [have their intended effects;] . . . the touchstone is whether the legislature 'reasonably believed [the evidence it relied on] to be reasonable' and whether the evidence 'fairly support the [legislature's] rationale' for the law.") (internal quotation marks and citations omitted)). The Court has stressed, furthermore, that when the evidence regarding a law's probable effect is in conflict, the judiciary should defer to the legislature. See Turner II, 520 U.S. at 199, 207-08, 211; see also City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 437, 122 S. Ct. 1728, 152 L. Ed. 2d 670 (2002) (government "does not bear the burden of providing evidence that rules out every theory . . . that is inconsistent with its own").

Notably, the D.C. Circuit has instructed that courts should be especially deferential to legislative predictions when it comes to gun policy: "In the context of firearm regulation, the legislature is far better equipped than the judiciary to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those risks." Schrader, 704 F.3d at 990 (internal quotation marks and citation omitted).

Given that the Supreme Court urges judicial deference to legislative predictions as well as to legislative judgments regarding conflicting evidence, it is plain that Plaintiffs are mistaken about the burden of proof in this case. The District need not prove that the gun-registration laws will actually further its asserted interests in order to prevail. This is evident notwithstanding the fact that the Court has occasionally used language that, taken in isolation, might seem to support Plaintiffs. See, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 487, 115 S. Ct. 1585, 131 L. Ed. 2d 532 (1995) (intermediate scrutiny "is not satisfied by mere speculation or conjecture; rather, a governmental body . . . must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree"); Turner I, 512 U.S. at 664 (to survive intermediate scrutiny, government must demonstrate "that the regulation will in fact alleviate [the asserted] harms in a direct and material way"). This interpretation is consistent with Heller II itself, where the D.C. Circuit upheld the District's ban on assault weapons because "the evidence demonstrates [that it] is likely to promote the Government's interest in crime control." Heller II, 670 F.3d at 1263 (emphasis added).

While the legislature is entitled to make predictions about the effect of its chosen policies, especially in the context of firearm regulation, those predictions must still have a sound basis:
That Congress' predictive judgments are entitled to substantial deference does not mean . . . that they are insulated from meaningful judicial review altogether. On the contrary, we have stressed . . . that the deference afforded to legislative findings does not foreclose our independent judgment of the facts bearing on an issue of constitutional law. This obligation to exercise independent judgment . . . is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.
Turner I, 512 U.S. at 666 (internal quotation marks and citations omitted).

The D.C. Council may rely on predictions about the effect of the gun-registration laws, then, but its predictions must be reasonable ones drawn from "substantial evidence." The Supreme Court has emphasized that "substantiality is to be measured in this context by a standard more deferential than we accord to judgments of an administrative agency," Turner II, 520 U.S. at 195, but it has also made clear that the "substantial evidence" requirement has teeth, rejecting legislative predictions that were not backed by sufficient evidence. See, e.g., Turner I, 512 U.S. at 666-68. The Heller II court followed suit here, remanding this case for further consideration because the District had "fail[ed] to present any data or other evidence to substantiate its claim that these [gun-registration] requirements can reasonably be expected to promote either of the important governmental interests it has invoked." Heller II, 670 F.3d at 1259. To satisfy intermediate scrutiny, therefore, the District need not meet Plaintiffs' demanding standard by proving definitively that the challenged gun regulations will actually further its important interests. Instead, its predictions about the effect of the gun regulations are entitled to significant deference, and the District need only show that they reflect "reasonable inferences based on substantial evidence." Id. at 1259 (Turner II, 520 U.S. at 195) (internal quotation marks omitted).

b. Data versus Other Evidence

On the second point in contention — whether the District must rely only on hard data or if it may supplement the record with other forms of evidence — the government once again prevails. The Supreme Court has specifically addressed this matter: "[W]e have permitted litigants to justify . . . restrictions [under intermediate scrutiny] by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and simple common sense." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001) (emphasis added) (internal quotation marks omitted); see also Alameda Books, 535 U.S. at 439-40 ("A municipality considering an innovative solution may not have data that could demonstrate the efficacy of its proposal because the solution would, by definition, not have been implemented previously."); National Ass'n of Mfrs. v. Taylor, 582 F.3d 1, 15, 388 U.S. App. D.C. 190 (D.C. Cir. 2009) ("[Plaintiff] maintains that the congressional findings . . . are insufficient to support [the government's asserted interest] and thus to satisfy strict scrutiny. Rather, there must be 'studies, statistics, or empirical evidence . . . .' We disagree."); National Cable & Telecommunications Ass'n v. FCC, 555 F.3d 996, 1000, 384 U.S. App. D.C. 349 (D.C. Cir. 2009) ("The Supreme Court has found 'various unprovable assumptions' sufficient to support the constitutionality of state and federal laws.") (quoting Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973)).

The proper standard, the Supreme Court has suggested, is that the government may rely on "whatever evidence . . . is reasonably believed to be relevant to the problem that [the government is] address[ing]." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986); see also Alameda Books, 535 U.S. at 438-39. When the D.C. Circuit remanded this case for further factual development, it accordingly did not limit the District exclusively to statistics, but instructed only that "the District needs to present some meaningful evidence, not mere assertions, to justify its predictive judgments." Heller II, 670 F.3d at 1259 (emphasis added); see also id. (the District "fails to present any data or other evidence to substantiate its claim") (emphasis added). That is a much broader mandate than what Plaintiffs claim is required here.

Relatedly, Plaintiffs attempt to discredit three of the District's expert witnesses — Lanier, Jones, and Vince — whose opinions rely primarily on their personal experiences working in law enforcement. Plaintiffs urge that "formal training in statistical analysis and research design is necessary to evaluate the effectiveness of gun control measures, as is a thorough knowledge of the methods and findings of prior research on this topic. These witnesses have neither that training nor that knowledge." Pl. Mot. at 21 n.16. Plaintiffs therefore suggest that the Court "give little or no weight to the unsupported personal opinion testimony of these three witnesses." Id.

The Court will not disregard the District's expert testimony on that basis. While a police officer's personal experience may not always carry the same heft as a criminologist's data, this is no reason for the Court to entirely disregard the former in favor of the latter. Indeed, in some cases, the reverse might be true. Just as Justice Holmes once observed that "a page of history is worth a volume of logic," New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S. Ct. 506, 65 L. Ed. 963, T.D. 3267 (1921), so too, sometimes, a page of professional experience is worth a volume of statistics. That is hardly to say that an anecdote or two from "life on the beat" would suffice, yet in this case, the experience of the District's witnesses far exceeds that measure. The D.C. Circuit, moreover, routinely permits law-enforcement officers to testify as expert witnesses based on their professional experiences, without the kind of formal statistical training that Plaintiffs insist is indispensable to any legitimate policy judgment. See, e.g., Burkhart v. Washington Metropolitan Area Transit Authority, 112 F.3d 1207, 1211-12, 324 U.S. App. D.C. 241 (D.C. Cir. 1997); United States v. Spriggs, 996 F.2d 320, 325, 302 U.S. App. D.C. 54 (D.C. Cir. 1993). This is because Federal Rule of Evidence 702 allows a witness to qualify as an expert "by knowledge, skill, experience, training, or education," Fed. R. Evid. 702 (emphasis added), and "experience" includes "employment in the field as well as experience in performing tests or studies." Groobert v. President and Directors of Georgetown College, 219 F. Supp. 2d 1, 7 (D.D.C. 2002) (emphasis added).

Statistical data can, of course, be powerful validation for a particular position, and depending on the context, it may well be a practical necessity in order for the government to show that it had "substantial evidence" to support its policy judgments. As the Supreme Court has observed, "The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised." Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 391, 120 S. Ct. 897, 145 L. Ed. 2d 886 (2000). There is no per se rule, however, requiring the government to confine its justifications to objective evidence or empirical studies. So long as the District provides "meaningful evidence" that satisfies intermediate scrutiny, it will have met its burden under the law.

In sum, to survive intermediate scrutiny, the District must show that its predictions about the effect of its gun-registration laws reflect "reasonable inferences based on substantial evidence." Turner I, 512 U.S. at 666. The standard for substantiality is doubly deferential in this case, where the Court is reviewing a legislative judgment on firearms policy. See Turner II, 520 U.S. at 195 (substantiality requirement more deferential when reviewing legislative judgments); Schrader, 704 F.3d at 990 (courts should be especially deferential when reviewing legislative judgments on gun policy). "Substantial evidence," furthermore, is not limited solely to empirical data, but may also include all "meaningful evidence," Heller II, 670 F.3d at 1244, including "anecdotes . . . history, consensus, and simple common sense." Lorillard Tobacco, 533 U.S. at 555 (internal quotation marks omitted).

B. The District's "Substantial Interests"

Having lined the field for this Second Amendment inquiry, the Court may now referee the merits of the case. As the D.C. Circuit noted in Heller II, the challenged gun-registration requirements here are intended to further two "substantial government interests": "[P]rotect[ing] police officers" and "aid[ing] in crime control." Heller II, 670 F.3d at 1258. On remand, the District has slightly expanded the second interest to "promoting public safety." See Def. Mot. at 22. "Crime control" and "public safety" are not synonymous terms as they relate to guns, since the latter also incorporates suicides and firearm accidents. Plaintiffs have not disputed that these are indeed important interests, at least in the abstract. See Pl. Mot. at 7. The Court must now assess, however, whether those interests are actually in play in this case, before it moves on to analyze whether each of the challenged provisions is "substantially related" to such interests.

The first interest, the District says, is the protection of police officers. Gun registration allegedly provides law-enforcement officers with a centralized record system that "allows officers to determine in advance whether individuals involved in a call [for police assistance] may have firearms." Heller II, 670 F.3d at 1258; see also 2012 Report at 6; 2008 Report at 3-4; Lanier Decl., ¶ 17; Jones Decl., ¶ 11. Plaintiffs question this justification, however, noting that when D.C. police officers respond to a call, they do not routinely check registration records to determine if a firearm is present, see Pl. Mot., Exh. 3 (Plaintiffs' Excerpted Deposition of Cathy Lanier) at 36, and that, in fact, such record checks are cumbersome and relatively rare. See id., Exh. 1 (Plaintiffs' Excerpted Deposition of Lieutenant Jon Shelton) at 19; id., Exh. 2 (Plaintiffs' First Set of Interrogatories), Resp. No. 6. Still, these checks do occur, see Def. Reply, Exh. N (Defendant's Excerpted Deposition of Lieutenant Jon Shelton) at 3, and so the Court finds that this justification provides some, albeit limited, support for the District's registration policy.

Much more persuasive is the District's second, public-safety, justification for the gun registry. The registration system ostensibly serves this interest by allowing the city government to screen out dangerous or irresponsible people who try to obtain a firearm, to ensure that gun owners are familiar with gun safety and D.C. firearm regulations, and to inhibit the illegal trafficking of firearms. See 2012 Report at 6-8; Lanier Decl., ¶¶ 17-18; Jones Decl., ¶¶ 10-16. In other words, the basic registration requirement allows the District to keep track of who is responsible for which guns, while also acting as a "hook" onto which the District can attach additional public-safety regulations. This interest is particularly compelling in the District of Columbia, a "densely populated urban area" that "shares the problem of gun violence with other dense, urban jurisdictions." Heller II, 670 F.3d at 1263 (quoting Comm. On Pub. Safety, Report on Bill 17-593 (Nov. 25, 2008) at 4) (internal quotation marks omitted); see also Lanier Decl., ¶¶ 11-16; Vince Decl., ¶ 12. The empirical data bear this out: D.C.'s age-adjusted rate of firearm deaths, intentional and unintentional, is 14.62 per 100,000, significantly higher than the national rate (10.07) and the rate in neighboring jurisdictions (9.26 in Maryland and 10.69 in Virginia). Def. Mot. at 22 (citing Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Web-based Injury Statistics Query and Reporting System ("WISQARS"), available at http://www.cdc.gov/ncipc/wisqars). Approximately three-quarters of all homicides in the District involve firearms. See 2012 Report at 3. Plaintiffs do not appear to dispute that public safety is a substantial government interest that the registration requirements are at least intended to address, and, indeed, the Court finds that this is a powerful justification for the District's gun-registration regime.

C. Are the Challenged Provisions "Substantially Related" to the District's Interests?

Given that police protection and, especially, the promotion of public safety are significant government interests in this case, the Court now turns to the question of whether the various provisions of the District's gun registry challenged here are "substantially related" to those interests. As explained earlier, to prevail on these points, the District must show that its predictive judgments about the effect of each provision at issue reflect "reasonable inferences based on substantial evidence," Turner I, 512 U.S. at 666, and that the provisions are narrowly tailored to its important interests in this case.

In Heller II, the D.C. Circuit upheld two aspects of the District's gun-registration scheme: the basic registration requirement as applied to handguns and the prohibition on assault weapons and high-capacity magazines. See Heller II, 670 F.3d at 1264. The basic registration requirement as applied to handguns was "longstanding," according to the court, and thus presumptively lawful. Id. at 1254. There was no basis in the record to rebut that presumption, and so the Court upheld the requirement without further analysis. See id. at 1254-55. The ban on assault weapons and high-capacity magazines, by contrast, was not longstanding and did impose a burden on the Second Amendment right. See id. at 1260-64. The Heller II court nonetheless upheld that law as satisfying intermediate scrutiny. See id.

That leaves the remaining provisions of the District's gun-registration regime: the basic registration requirement as applied to long guns and the accompanying registration requirements as applied to all guns. The Heller II court found that these rules were "novel, not historic," and so remanded the case for further factual development and consideration under the remaining steps in the Second Amendment inquiry. Id. at 1255-1260. It is to that analysis that this Court now turns.

1. Basic Registration for Long Guns

The Court begins by examining the constitutionality of the District's basic registration requirement as applied to long guns. It first must determine whether long-gun registration imposes a burden on the right to keep and bear arms. If it does not, then the Court may uphold the requirement without going further, since it will fall outside the domain of the Second Amendment's protection. If the registration requirement does burden the Second Amendment right, then the Court must subject it to intermediate scrutiny in order to determine whether it passes constitutional muster.

a. Burden of Long-Gun Registration

While this perhaps represents Plaintiffs' most significant remaining challenge to the D.C. scheme, it is, ironically, practically foreclosed by Heller II, where the D.C. Circuit suggested strongly that long-gun registration does not burden the right to bear arms. There, in upholding the basic handgun-registration requirement as longstanding and thus presumptively lawful, the panel majority also observed that the law hardly imposed much of a burden on gun ownership: "asic 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." Id. at 1254-55. The court then added:
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 . . . the record is devoid of information concerning the application of registration requirements to long guns. On remand and with the benefit of additional evidence, the district court will be better able to address this question in the first instance.
Id. at 1255 n.**.

On remand, Plaintiffs have offered no evidence to suggest that the basic registration requirement — the mere fact of having to register one's gun, in isolation from the means prescribed by the District for doing so — is any more burdensome as applied to long guns than it is as applied to handguns. Indeed, if the basic registration requirement is "self-evidently de minimis" as applied to handguns, then the Court is at a loss to imagine how that same requirement could become anything more than de minimis as applied to long guns. Id. at 1254-55. The requirement appears to be identical for each kind of weapon, and in either case, it is "similar to other common registration or licensing schemes, such as those for voting or for driving a car, that cannot reasonably be considered onerous." Id. The language of the Heller II opinion, then, should compel this Court to find that the basic registration requirement as applied to long guns is de minimis, and to uphold it as constitutional on that basis alone.

Because the relevant language from Heller II is technically dicta, however, and because the District's justifications for the basic registration requirement are central to the legality of the rest of the firearm-registration regime, the Court will follow the Court of Appeals' lead by assuming that the requirement as applied to long guns burdens the Second Amendment right and then subjecting it to intermediate scrutiny. The Court has already established that the District has important interests in protecting police and promoting public safety, see Part III.B, supra, so it next must determine whether long-gun registration is "substantially related" to those interests.

b. Evidence Regarding Long-Gun Registration

The evidence suggesting that a basic registration requirement for long guns will promote public safety and protect police consists of expert testimony from Chief of Police Lanier, see Lanier Decl., ¶¶ 16-18, 21-22, 26-30, former ATF agent Jones, see Jones Decl., ¶¶ 10-16, former ATF agent and Professor Vince, see Vince Decl., ¶¶ 10-11, 26, and Professor Webster. See Webster Decl., ¶¶ 12-13, 19-26, 35; see also 2008 Report at 3-4; 2012 Report at 5-8.

(i) Gun Registration Generally

Lanier, Jones, and Vince recount that, in their professional opinions, firearm registration protects police and reduces gun-related crime. Lanier notes that mandatory gun registration helps keep guns away from felons and mentally ill individuals, who may pose a threat to the general public. See Lanier Decl., ¶ 18; see also Vince Decl., ¶ 10 (emphasizing "the many benefits of strong firearm-registration requirements, perhaps the main one being to keep weapons out of the hands of criminals or others who pose a safety risk to themselves or the public"). She further observes that registration allows law enforcement to monitor whether a gun owner subsequently became ineligible to possess a firearm — for instance, if he was later convicted of a felony or a domestic-violence offfense, or if he was committed by a court for mental-health treatment — and to ensure that the registrant surrenders the gun in accordance with the law. See Lanier Decl., ¶ 21. Registration, according to Lanier, also makes it easier for law enforcement to combat gun trafficking by tracking lost or stolen weapons. See id., ¶ 28.

Jones follows suit, endorsing the system based on his own personal experience:
Based on my experience, firearm registration provides necessary information for public safety agencies and first responders such as presence of documented firearms and ammunition in homes and businesses to which they answer calls for service, and the identity of citizens who legally possess firearms and ammunition at those homes and businesses. In my opinion, registration requirements also provide a framework within which public safety agencies may formulate firearms safety, training, and education programs focused on the needs of their constituent legal firearms owners. In my observation, a well-regulated firearms registration process also increases the likelihood that law enforcement may successfully trace guns they recover.
Jones Decl., ¶ 11. Vince does the same: "Registration has proven to be effective in keeping weapons away from criminals. For instance, since 1934, the National Firearms Act has required the registration of weapons like machine guns and sawed-off shotguns, and I learned at the ATF that NFA-registered weapons are very rarely used in crime." Vince Decl., ¶ 11. He adds that "[r]egistration also makes it easier to trace guns used in crime to their last known legal owner, and to investigate possible illegal transactions, providing law-enforcement officers with critical information to track firearms when investigating gun crimes and gun smuggling." Id.

[de officiis]

Heller v. District of Columbia, Civil Action No. 08-1289 (JEB), (D.D.C. May 15, 2014) (Cont'd.)

Opinion Link: https://ecf.dcd.uscourts.gov/cgi-bin/sh ... 8cv1289-83

Webster provides empirical evidence to back up these perspectives. He recounts a study he led finding that Missouri's repeal of a similar gun-registration scheme quickly led to a dramatic increase in illegal gun trafficking in that state. See Webster Decl., ¶¶ 14-18. Not only did trafficking increase, but also homicide — just one year after Missouri repealed its law, its firearm-homicide rate increased by approximately 30%. Id., ¶¶ 19-20. "This increase was out of synch with changes during that period in age-adjusted homicide rates nationally and in other states in the Midwest." Id. Webster also describes a study that compared the proportion of guns used in crimes "that were originally sold by a licensed retail gun seller inside the state versus outside the state" and found that the ratio "was significantly lower in the cities located in states with . . . licensing and handgun registration (33.7%) . . . than in states that had neither of those laws (84.2%)." Id., ¶ 23. States with firearm registration, in other words, saw comparatively fewer of their locally sold weapons used in crime. Webster further notes that the states with "permit-to-purchase licensing requiring prospective purchasers to apply directly with a law enforcement agency" — "the same firearm sales regulations used by the District of Columbia" —"have some of the lowest age-adjusted firearm morality rates . . . in the nation." Id., ¶¶ 22, 23. "[T]he three states that exported the fewest crime guns per capita," moreover, "had handgun registries and permit-to-purchase licensing." Id., ¶ 25. Relatedly, Webster recounts a study he led that "examined the association between state gun sales regulations and the diversion of guns to criminals" and found that "[d]iscretionary [permit-to-purchase] licensing was independently associated with lower levels of diversion of guns sold by in-state dealers." Id., ¶ 24.

(ii) Long-Gun Registration Specifically

There is also evidence to suggest that the basic registration requirement should be applied to long guns just as it is applied to handguns. Approximately 20% of the illegal firearms recovered by the District in 2010 were long guns, see 2012 Report at 19, and Plaintiffs' own expert, Professor Kleck, concedes that long guns are "more lethal" than handguns and should be regulated in the same way. Def. Mot., Exh. M (Defendant's Excerpted Deposition of Gary Kleck, Ph.D.) at 3. Between 2006 and 2010, 4,000 homicides were committed with long guns nationwide. 2012 Report at 19. Both Lanier and Jones affirm that "[a]ll firearms, be they rifles, shotguns[,] or handguns, pose a similar threat to public safety in the wrong hands and . . . should be regulated similarly." Jones Decl., ¶ 13; see also Lanier Decl., ¶¶ 31-35; 2012 Report at 20 ("The justifications that exist for registration of firearms in general . . . apply equally with regard to long arms."). The D.C. Council also observed that long guns are a significant concern in the nation's capital because their long-range accuracy "poses a special threat to government officials, diplomats, and motorcades." 2012 Report at 20; see also Lanier Decl., ¶ 32; Jones Decl., ¶ 15; 2008 Report at 3. Finally, as the District notes, leaving long guns outside the registration scheme would create a gap in the city's oversight system that might encourage criminals to use those weapons instead of handguns in order to cover their tracks from law enforcement. According to this evidence, then, the differences between long guns and handguns do not justify varied treatment with respect to the basic registration requirement.

Considered in total, this combination of professional opinion and empirical data suggesting that mandatory gun registration, including long guns, reduces gun crime and allows first responders to determine in advance the presence of registered firearms easily surpasses the "substantial evidence" threshold. The D.C. Council could reasonably infer from this evidence that the basic registration requirement would serve its interests in promoting public safety and protecting police and that the requirement should apply to long guns as well as handguns. Given the powerful evidence in favor of gun registration and the overwhelming consensus among the experts — even Plaintiffs' own — that long guns pose an equal danger to handguns and should be regulated in the same manner, basic registration of long guns is narrowly tailored to achieve the District's interests in this case. The provision therefore survives intermediate scrutiny.

c. Plaintiffs' Counterarguments

Plaintiffs put forward a number of reasons to reject the basic registration requirement —comprising both general attacks on all firearm registration and more focused critiques of the requirement as applied to long guns in particular. In the final analysis, however, none of their arguments is persuasive.

First, Plaintiffs suggest that firearm registration is not "narrowly tailored" to the government's interests in promoting public safety and protecting police because "criminals . . . circumvent the process[] by purchasing guns on the street and bypassing registration altogether. Only the law-abiding register their guns." Pl. Mot. at 29; see also Pl. Reply at 8. According to Plaintiffs, it seems, municipalities should be limited to enacting only those firearms regulations that lawbreakers will obey — a curious argument that would render practically any gun laws unconstitutional. This argument, moreover, misses several of the benefits to which the registry is tailored, such as helping the District to ensure that law-abiding gun owners are not subsequently rendered ineligible to possess their weapons, see Lanier Decl., ¶ 18; Vince Decl., ¶ 10, and allowing law enforcement to track recovered weapons and identify unregistered ones likely intended for trafficking or other crimes. See Lanier Decl., ¶ 28; Jones Decl., ¶ 11; Vince Decl., ¶ 11. Nor do Plaintiffs suggest a narrower approach to achieving the District's interests here.

Plaintiffs, in any event, overstate what narrow tailoring demands in these circumstances. "Narrow tailoring" in the context of intermediate scrutiny requires only that "the fit between the challenged regulation and the asserted objective [be] reasonable, not perfect." Schrader, 704 F.3d at 990. Although a few criminals may slip through the cracks of the registry, the significant evidence linking gun registration to crime reduction demonstrates that the "fit" is certainly reasonable in this case. As the Supreme Court has explained, "[T]he requirement of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Turner I, 512 U.S. at 662 (internal quotation marks and citation omitted) (emphasis added). Not all gun owners will register their weapons and the registry will not stop all gun violence, but there is more than enough evidence to support the District's conclusion that its goals of promoting public safety and protecting police would be "achieved less effectively" absent the basic registration requirement. Id. That is all the law requires.

Next, Plaintiffs question the methodology of Webster's empirical studies on gun registration. They contend, first, that "preventing 'diversion' [of guns] to criminals" — one subject on Webster's studies — "is not the same as causing an actual reduction in violent crime." Pl. Mot. at 28-29. That may well be true, but the relation of one to the other is not unreasonable, and the District may pursue its substantial interests in police protection and public safety not only by directly seeking to reduce violent crime, but also by striving to prevent the illegal gun trafficking that exacerbates it. Cf. 2012 Report at 8 ("The government's interest in preventing the trafficking of guns — i.e., the acquisition of guns by criminals — cannot be overstated.").

Plaintiffs also highlight several technical flaws in Webster's work, as described by Professor Kleck:
Webster's analysis of Missouri's permit-to-purchase licensing law is based on a fundamental misunderstanding of ATF trace data. He claims that the time from when a gun was first sold at retail to when it is recovered by police ("time-to-crime," or TTC) is "indicative of possible trafficking." . . . It is not. First, trace data cannot tell us whether a gun has been trafficked or otherwise "diverted." As a National Research Council panel concluded, "trace data cannot show whether a firearm has been illegally diverted from legitimate firearms commerce." . . . Second, and more specifically, the trace-based "short TTC" measure has been empirically shown to not be correlated with another, more widely accepted indicator of gun trafficking, the prevalence of obliterated serial numbers. . . . In fact, the share of traced guns with a short TTC is actually far more strongly correlated with gun theft rates . . . . D.C.'s registration laws do nothing to affect rates of gun theft . . . . Webster's analysis is therefore distorted by an outdated, discredited interpretation of the meaning of short TTC.
Kleck Decl., ¶¶ 27-28. Plaintiffs further note that Kleck questions Webster's conclusions linking Missouri's repeal of its permit-to-purchase law with an increase in homicides, claiming that his study was skewed by a brief increase in homicides in the state in 2008, that it failed to consider the fact that neighboring Iowa's homicide rate also increased over the same time period even though that state did not change its gun laws, and that his choice of control variables and control areas was arbitrary. See id., ¶¶ 31-35.

Kleck's testimony scores some blows against Webster's research. Yet his critique does not entirely vitiate Webster's endorsement of the D.C. gun-registration scheme. The testimony cited by Plaintiffs, if accurate, undermines only the part of Webster's research related to measuring gun trafficking and homicide rates; it does not affect the studies he cites examining the relationship between gun registration and the use of guns in crime. See Webster Decl., ¶¶ 22-25. Even without the criticized aspects of Webster's research, the expert testimony of Lanier, Jones, and Vince, and Webster's studies involving the effect of gun registration on the use of guns in crime exceed the "substantial evidence" threshold necessary to justify the District's policy.

The District, moreover, has provided additional research defending Webster's analyses and critiquing Kleck's, which data restore some credibility to Webster's findings regarding the relationship between firearm registration, gun trafficking, and homicide. See Def. Mot., Exh. A (Appendix) at 279-93 (Anthony A. Braga, et al., Interpreting the Empirical Evidence on Illegal Gun Market Dynamics, 89 J. Urban Health: Bull. of the New York Acad. of Med. 779 (2012)); Fact Sheet — National Tracing Center, ATF (Feb. 2013), available at http://goo.gl/LvZyi3 (last visited May 15, 2014). In the face of these "conflicting views" of Webster's work, the Court need not "put [its] imprimatur" on his research, but merely must decide whether the District has provided "substantial evidence for [the D.C. Council] making the judgment that it did." Turner II, 520 U.S. at 208; see also Gonzales v. Carhart, 550 U.S. 124, 163, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007) (courts should give legislatures "wide discretion to pass legislation in areas where there is . . . scientific uncertainty") (collecting cases). In the D.C. Circuit, furthermore, deference of this sort is considered especially appropriate when it comes to the regulation of firearms. See Schrader, 704 F.3d at 990. Despite Kleck's critiques, then, the Court finds that Webster's analyses, the accompanying defense of his methods, and the other expert testimony submitted by the District clears the substantial-evidence threshold.

Plaintiffs next train their fire on the necessity of the basic registration requirement as applied to long guns. They note that homicides in the District are rarely committed with long guns — just three out of a total of 383 area murders between 2009 and 2011. See Pl. Mot., Exh. 8 (Murder Statistics by State, Types of Weapons). They also highlight the fact that between July 2008 and October 2012, a paltry two registered shotguns and zero registered rifles were recovered from crime scenes in the District, see Def. Mot., Exh. J (D.C. Attorney General Letter of Dec. 5, 2012) at 2; Plaintiffs' Excerpted Deposition of Lieutenant Jon Shelton at 22-23, while during an only slightly longer time period, more than 12,000 unregistered firearms were recovered. See Plaintiffs' Excerpted Deposition of Cathy Lanier at 2. Plaintiffs add that most of the studies Webster describes either focused solely on handguns or did not distinguish between handguns and long guns. See Kleck Decl., ¶ 13. Finally, in a particularly macabre exhibit attached to their pleading, Plaintiffs observe that very few assassination attempts in the District were committed with long guns; rather, hand guns, bombs, and biological agents seem to be the assassin's weapons of choice. See Pl. Mot., Exh. 11 (Table of U.S. Political Assassinations and Attempts).

Although Plaintiffs have raised some important points, these are not enough to undermine the constitutionality of long-gun registration. The District notes, first of all, that there are reasons to be skeptical of Plaintiffs' numbers, see Plaintiffs' Excerpted Deposition of Cathy Lanier at 49-50 (questioning accuracy of Plaintiffs' homicide statistics), but that even if there were not, the D.C. Council is "entitled to rely on the experiences of . . . other cities" in setting its own policy, Renton, 475 U.S. at 51, and to take pre-emptive action to prevent potential harms before they occur. See Turner II, 520 U.S. at 212. In other words, the District could appropriately consider the nation's long-gun homicide rate — 4,000 between 2006 and 2010, 2012 Report at 19 — when setting its own local gun policy. Plaintiffs' homicide statistics, moreover, ignore the fact that long guns may pose a public-safety threat when used to perpetrate other kinds of violent crime, such as armed robbery and assault with a dangerous weapon, see 2012 Report at 3, and that the District was entitled to consider those concerns as well. While the studies cited by Webster do not always distinguish between handguns and long guns, it was not unreasonable for the District to extrapolate from them in determining its long-gun policy, especially given the opinion of multiple experts that long guns and handguns pose similar dangers and should be regulated similarly. See Jones Decl., ¶ 13; Lanier Decl., ¶¶ 31-35; Defendant's Excerpted Deposition of Gary Kleck, Ph.D. at 3. As for the debate over political assassins' preferred weaponry, the Court need not wade into that gruesome calculus — although it does note the recent long-gun shooting at the White House, see Ann E. Marimow, Man Admits Firing 8 Rounds at White House, Wash. Post, Sept. 19, 2013, at B3 — because the quotidian danger posed by long guns is sufficient on its own to justify the District's registration policy. The D.C. Council could reasonably conclude from the substantial evidence before it that long guns, as well as handguns, should be registered with the city government.

Finally, Plaintiffs point to contrary evidence suggesting that long-gun registration does not protect police or promote public safety. Canada established a long-gun registry in the mid-1990s but repealed it in 2012 because it found, as the Canadian Minister of Public Safety put it, that "the long-gun registry does . . . nothing to prevent crime or protect front-line officers." Pl. Mot., Exh. 12 (House of Commons Standing Committee on Public Safety and National Security, Tuesday, November 15, 2011, Transcript) at 1. Some empirical data backs up the Minister's insight: According to Kleck, "U.S.-based cross-sectional research [on] . . . [f]irearms registration laws show no statistically significant violence-reducing effect on any type of violence," and the one "serious empirical assessment of the impact of Canada's requirement that long guns (rifles and shotguns) be registered . . . found no evidence that the law had any beneficial effects, either immediate or lagged." Kleck Decl., ¶¶ 94-95.

Faced with this evidence, the District questions whether Canada's experience is relevant to its own, given that our northern neighbor comprises several sparsely populated, rural provinces while D.C. is a dense, entirely urban jurisdiction. It cannot be denied, however, that the Canadian example at the very least offers an important counterpoint to the District's own conclusions on this matter. Kleck, moreover, has offered a U.S.-based argument suggesting that gun registries are not as effective as the District might hope. These counterpoints, nevertheless, are better presented to the D.C. Council than to the federal judiciary. As noted earlier, a court applying intermediate scrutiny may invalidate a law only if the legislature lacked substantial evidence to support its ultimate conclusion on the matter — a circumstance not present here. When there is merely conflicting evidence in the record, the judiciary must defer to the legislature's choice. See Turner II, 520 U.S. at 199, 207-08, 211; Alameda Books, 535 U.S. at 437-38; see also Woollard v. Gallagher, 712 F.3d 865, 881 (4th Cir. 2012) ("t is the legislature's job, not ours, to weigh conflicting evidence and make policy judgments."). Here, the D.C. Council chose to go with the substantial evidence indicating that long-gun registration would promote public safety and protect police, rather than the data points suggesting otherwise. That is all the law requires.

In sum, the basic registration requirement as applied to long guns satisfies intermediate scrutiny and therefore does not violate the Second Amendment.

2. The Registration-Process Requirements: Appearing In Person, Bringing the Firearm, Photographing, and Fingerprinting

The constitutionality of the basic registration requirement as applied to long guns now established, the Court moves on to examine the associated registration requirements that Plaintiffs have challenged as applied to all firearms. The Court begins with the requirements related to the registration process itself. To register a weapon, the registrant must appear in person and in possession of the firearm to be registered, and he must submit to being photographed and fingerprinted. See D.C. Code § 7-2502.04. Plaintiffs claim that these four requirements are not substantially related to the District's interests in police protection and public safety. Once again, the Court will begin by determining whether these requirements burden the Second Amendment right, will then subject them to intermediate scrutiny, and will wrap up by addressing Plaintiffs' counterarguments.

a. Burden of the Registration Process

The District, highlighting Heller II's observation that the registration schemes for voting or driving a car "cannot reasonably be considered onerous," Heller II, 670 F.3d at 1255, notes that at least some of the provisions at issue here are also present in voter-registration or driver's-license schemes and that they thus impose only a de minimis burden on the Second Amendment right. In opposition, Plaintiffs emphasize the time and financial burden of traveling to the MPD office during business hours and fulfilling the various registration requirements. See Pl. Mot. at 25, 42-45; id., Exh. 16 (Declaration of Dick Anthony Heller), ¶¶ 5-10; id., Exh. 17 (Declaration of William Carter), ¶¶ 5-6, 8-10, 12, 14, 17; id., Exh. 19 (Declaration of Absalom Jordan), ¶¶ 4, 6, 8, 10; id., Exh. 20 (Declaration of William Scott), ¶¶ 5-7, 9. Either way, the issue has already been resolved by Heller II, which stated that the requirements in question "affect the Second Amendment right because they are not de minimis." Heller II, 670 F.3d at 1255. The Court, therefore, must apply intermediate scrutiny to determine the constitutionality of these four regulations.

b. Evidence Regarding the Registration Process

The requirements at issue allow the city government to verify the identity of each person who seeks to register a firearm, to run a background check on that person, and to tie that person's identity to the weapon's registration certificate. The District has presented substantial evidence that all this is necessary to ensure that the underlying registration scheme is effective in tracking who is eligible to own a firearm and who owns which weapons. That insight is backed not only by "simple common sense," Lorillard Tobacco, 533 U.S. at 555 (internal quotation marks omitted), but also by an impressive array of expert testimony.

To begin, all the District's experts are in consensus that requiring people to appear in person with the weapon to be registered and to submit to fingerprinting helps to avoid fraud and ensures the identity of each prospective registrant. Ensuring the integrity and accuracy of the registry, of course, is necessary for gun registration to achieve the District's substantial interests in protecting police and promoting public safety. Lanier affirms that in her "professional opinion, the District's requirement of an initial in-person registration and background check . . . is the best means to verify an applicant's eligibility." Lanier Decl., ¶ 19. She explains, "Identity theft is rampant, and gun dealers are not necessarily well trained in identifying false documents. The use of fingerprints provides MPD with a means of biometric identification, which ensures that the applicant is who he says he is." Id., ¶ 20. Jones echoes this assessment:
Requiring an individual to present him or herself to register a firearm allows District authorities to make a more thorough evaluation of that person, including an on-the-spot evaluation of behavior that might indicate the applicant is not being truthful . . . . An additional advantage to in-person registration is the indisputable identification of the aspiring registrant as the actual owner of the firearm in question, thus limiting the ability of one person to impersonate another to defeat the legal registration program. Simply stated, programs that do not require in-person registration and ID verification are potentially less effective at preventing the diversion of firearms from legitimate to illegal purposes.
Jones Decl., ¶¶ 21-22. Vince agrees: "One of the most effective ways to ensure that criminals do not circumvent the firearm-registration process is to require in-person appearance and ID verification as part of registration." Vince Decl., ¶ 19. Vince explains that in-person registration "provides an opportunity to verify the intentions and accuracy of information for [the] person obtaining a permit . . . . Without such a system, the District might just as well have kiosks dispense registration permits." Id., ¶¶ 20-21.

Webster, too, backs the District's registration process. He recounts a United States Government Accounting Office study that found that gun stores and pawn shops in states that do not requiring fingerprinting for firearms purchases were vulnerable to purchasers who used fake identification cards. See Webster Decl., ¶ 10. He adds that "the casual scrutiny given to firearm sales applications suggest that the system could also be vulnerable to other deceptive practices . . . . For example, prospective purchasers could more easily put inaccurate information on their application forms . . . in order to avoid a denial of the application." Id., ¶ 11. Although no expert specifically addresses the requirement that registrants bring the gun to be registered with them, it is a permissible, common-sense inference from this testimony that if in-person appearance is necessary to verify the identity of the registrant, then physically bringing the gun is similarly necessary to verify the character of the registered weapon. See Def. Mot. at 25 n.21.

The District's experts are in further agreement that a local background check, conducted using the prospective registrant's name and fingerprints, helps to keep guns out of the hands of unauthorized persons. As mentioned previously, MPD runs a background check on prospective registrants that queries several sources including the FBI database, the Washington Area Law Enforcement System, and the National Criminal Information Center. Shelton Decl., ¶¶ 11-12. This check is more comprehensive than the one already required of gun dealers under federal law. See Def. Reply, Exh. O (Declaration of Sergeant Colin Hall), ¶¶ 5-9; see also 18 U.S.C. § 922(t). Lanier endorses the District's broader approach to background checks, citing a 2008 study that "found that states that use local-level agencies — such as local police or sheriff's departments — to perform background checks for firearms have lower rates of homicide and suicide than states that simply rely on a federal background check." Lanier Decl., ¶ 19 (citing Steven A. Sumner, et al., Firearm Death Rates and Association with Level of Firearm Purchase Background Check, 35 Am. J. Prev. Med. 1-6 (2008)). She explains the importance of fingerprinting to this process:
[T]he criminal background check performed by MPD, which is based on fingerprints, is more effective than that performed by a gun dealer, which is merely based on a social security number. . . . The use of fingerprints provides MPD with a means of biometric identification, which ensures that the applicant is who he says he is and that MPD is performing a background check on the correct person.
Id., ¶ 20. Webster concurs, quoting the conclusion of the GAO study mentioned above: "[T]he instant background check" required by federal law "does not positively identify purchasers of firearms . . . [and it] cannot ensure that the prospective purchaser is not a felon." Webster Decl., ¶ 10.

Finally, the requirement that a potential registrant be photographed allows D.C. law enforcement to quickly verify an individual's identity when presented with his firearm-registration certificate. Much like a driver's license, each firearm-registration certificate includes the photograph of the registrant taken at the time of registration. See 24 D.C. Mun. Regs. § 2314.4 (2013). Lanier explains the importance of including a photograph in the registration certificate:
[A] registration certificate with photo identification . . . is critical to protecting the safety of police officers and the public. . . . A certificate with a photo helps to quickly and safely communicate a registrant's legal status to a law enforcement officer. Without this, in many instances it would be far more difficult for officers to readily distinguish between a registered owner legally transporting a firearm, and someone transporting an illegal firearm. This photo identification, in turn, helps to keep both the officer and the registrant safe.
Lanier Decl., ¶ 27; see also 2012 Report at 9. In other words, the photograph allows law enforcement to verify visually that the person in possession of a registration certificate is indeed its rightful holder.

The evidence shows, in sum, that the requirements that potential firearm registrants appear in person and in possession of the weapon to be registered and that they submit to fingerprinting and photographing help to effectuate the District's firearm-registration scheme by preventing fraud, enabling more comprehensive background checks, and allowing police to more easily verify the true owner of a registration certificate. This evidence is sufficiently substantial to justify the D.C. Council's predictions that the regulations in question will further the District's important interests in police protection and public safety.

The Court finds, moreover, that the requirements are narrowly tailored to achieve those interests. The fingerprinting and photographing requirements align directly with the District's need to verify the identity of gun registrants and perform background checks. Although it would be conceivably possible for the District to permit residents to register their guns remotely, the city is not required to use the least restrictive means to further its goals here, see Heller II, 670 F.3d at 1244, and in-person registration is obviously necessary for the District to ensure that the fingerprints and photographs that it processes are accurate. Asking registrants to bring their firearms with them, moreover, is the only surefire way to ensure the character of the weapon to be registered. The registration-process requirements, therefore, are not "substantially broader than necessary" to achieve the District's interests. Ward, 491 U.S. at 799. They satisfy intermediate scrutiny.

c. Plaintiffs' Counterarguments

Once again, Plaintiffs launch several broadsides against the District's proffered justifications. But once again, they miss the mark.

First, Plaintiffs contend that because MPD has not yet had a problem with individuals using fake identification cards to purchase or register firearms, see Plaintiffs' Excerpted Deposition of Lieutenant Jon Shelton at 4; Pl. Mot., Exh. 13 (Plaintiff's Excerpted Deposition of Daniel Webster) at 6-7, there is no need to combat fraud in the registration process. "A fundamental principle of legislation," however, is that the legislature "is under no obligation to wait until the entire harm occurs but may act to prevent it." Turner II, 520 U.S. at 212; see also Crawford v. Marion County Election Bd., 553 U.S. 181, 194, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008) (Indiana permitted to enact voter-ID law to combat voter fraud even though "[t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history"); Barry v. City of New York, 712 F.2d 1554, 1559-61 (2d Cir. 1983) (New York City permitted to enact a regulation requiring public officials to disclose personal financial information "despite its 'virtually corruption-free history'"). The fact that MPD has not detected identity fraud in firearm registration so far does not mean that the District is barred from taking preemptive action to thwart it.

Next, Plaintiffs reassert their argument that the regulations will fail to keep weapons out of the hands of wrongdoers because "criminals already circumvent the process[] by purchasing guns on the street and bypassing registration altogether. Only the law-abiding register their guns." Pl. Mot. at 29; see also Kleck Decl., ¶¶ 16-17, 26. This argument fails here for the same reason it did when directed, as discussed earlier in this Opinion, at the basic registration requirement for long guns. The premise itself makes little sense — since it would invalidate any and all gun regulations — and it fails to recognize the other important benefits of the gun registry. Intermediate scrutiny, moreover, requires only that the challenged regulation "promote[] a substantial government interest that would be achieved less effectively absent the regulation." Turner I, 512 U.S. at 662 (emphasis added) (internal quotation marks and citation omitted); see also Schrader, 704 F.3d at 990 (narrowly tailored in intermediate-scrutiny context means that "'the fit between the challenged regulation and the asserted objective [need only] be reasonable, not perfect.'"). Although the various registration requirements at issue will not prevent all criminals from obtaining firearms, it surely will prevent some from doing so. That is enough.

Third, Plaintiffs claim that the gun-dealer background checks mandated by federal law cover the same ground as the District's background checks and so render them redundant. Plaintiffs attempt to support this argument by noting that federal law prohibits firearm sales in a state if such sales would violate federal or that state's (including D.C.'s) law. See 18 U.S.C. §§ 921(a)(2) & 922(t)(2). But, as brief reflection makes clear, the first premise does not follow from the second. Although federal law prohibits firearm sales that violate D.C. law, that does not mean that the criminal-background checks mandated by federal law are as comprehensive as those required under the District's registration scheme. Indeed, the only expert testimony in the record on this subject suggests the contrary. See Hall Decl., ¶¶ 5-9. Not all gun sales, moreover — e.g., private transfers or gun-show sales — require a federal background check at all. Along the same lines, Plaintiffs challenge the study cited by Lanier for the proposition that local-level background checks reduce suicide and homicide rates. But even if, as Plaintiffs claim, this study is flawed, common sense alone is enough for the District to justify its desire to perform more comprehensive background checks than those required by federal law — obviously, more substantial background investigations should be more effective at screening out ineligible registrants.

Finally, Plaintiffs note that "[e]ven if the District wishes to conduct its own background checks, that does not require the permanent registration of the gun buyer, nor does it require recordation of the firearm." Pl. Mot. at 27. This argument ignores the District's independent reasons for establishing a firearm registry, discussed earlier. See Part III.C.1.b, supra. Incorporating background checks into the registration regime enhances the effectiveness of the city's registry — the registry does not exist to enable background checks.

To recap, the Court finds that the regulations associated with the registration process itself — that registrants appear in person, carrying the weapon to be registered, submit to fingerprinting, and have their photograph taken — are substantially related to the District's interests in police protection and public safety and narrowly tailored to achieving those interests. The requirements therefore satisfy intermediate scrutiny.

3. The Firearms-Safety, Training, and Knowledge Requirements

Next up is the requirement that registrants complete a firearms-training and safety class and pass a test demonstrating knowledge of the District's firearms laws in order to register a weapon. See D.C. Code § 7-2502.03(a)(10) & (13). The training and safety class is provided free of charge by MPD, see § 7-2502.03(a)(13)(A), and may be taken online or at MPD itself. See Def. Mot., Exh. C (Defendants' Responses to Plaintiffs' First Request for Production of Documents), Resp. 2. It takes from 30 minutes to one hour to complete. See Jones Decl., ¶ 26; MPD Firearms Safety Training Course, available at https://dcfst.mpdconline.com/ (last visited May 15, 2014). Once a registrant has taken the class and passed the test, he need not do so again in order to register additional weapons. See D.C. Code § 7-2502.03(a)(10) & (13)(A). By now, the analytic routine should be familiar: the Court starts by assessing the burden of the requirements, next applies intermediate scrutiny, and finally addresses Plaintiffs' counterarguments.

a. Burden of These Requirements

The District contends that these requirements are "minimally burdensome" and so should not be considered to impinge on Plaintiffs' Second Amendment rights. Def. Mot. at 28-29. The Court finds otherwise. First, Heller II plainly held that the required test demonstrating knowledge of the District's firearms laws was not merely a de minimis burden on the Second Amendment right. See Heller II, 670 F.3d at 1255. Second, that court found that a five-hour training and safety class — which was subsequently replaced with the current one-hour class —also qualified as a burden on the right to bear arms. See id. While it is possible, in theory, that the new, shorter training and safety class does not pose the same Second Amendment burden as the lengthier one addressed in Heller II, it would be a stretch to side with the District on this point. A mandatory hour-long class is at least as much of a burden as fingerprinting or photographing, both of which the D.C. Circuit found to constitute burdens on the Second Amendment right. See id. The Court therefore finds that both the test and the revised class burden Plaintiffs' Second Amendment rights and will accordingly subject both to intermediate scrutiny.

b. Evidence Regarding These Requirements

The District has presented substantial evidence that the test and class requirements will further its interests in protecting police and public safety by reducing the risk of firearm accidents and ensuring accountability for gun owners. Multiple expert witnesses testified to this effect. First, Lanier:
Anyone who possesses and registers a firearm should be aware of the laws and requirements for responsible gun ownership, as well as key safety principles. . . . Training with respect to safe handling and storage of a firearm is a requirement in most every law enforcement profession that requires the carrying of a firearm. Safe handling is one of the very first components of training, to reduce accidental discharges . . . . Moreover, in order to make registrants more clearly accountable under the law, it is important to be able to demonstrate that they were taught and aware of the requirements.
Lanier Decl., ¶¶ 23-24. Next, Jones:
In my opinion, requiring potential firearms owners to take a safety course addressing the safe handling, use, and storage of their firearms is a fundamental requirement encouraging responsible gun ownership. Understanding the risks inherent to firearms ownership is common sense and may assist in reducing unintentional discharges and injuries. . . . I believe that instructing District registrants in the widely accepted methods of safe storage, particularly in homes with children, is vitally important to both limiting access to the firearms only to authorized users and reducing theft, accidents, and other unintended consequences of bringing a firearm into the home.
Jones Decl., ¶¶ 25, 27. Finally, Vince:
Requiring citizens who want to register their firearms to take a course to learn about the safe use, handling, and storage of those firearms is just common sense. Every person who owns a gun should be required to take such a course. Because every firearm has the potential to seriously injure or kill, those who want to use such weapons should be trained in how to do so safely, to reduce the risk of accidental discharges. . . . Requiring gun owners to know how to safely handle and store their weapons clearly reduces the risk of potentially fatal accidents. I do not know of one firearm expert or law enforcement trainer who has not strongly recommended attending and successfully passing a safety course prior to owning or using a firearm.
Vince Decl., ¶ 23.

In sum, these three expert opinions comprise substantial evidence that the District's mandatory course on firearms safety and test on firearms regulation will help to prevent firearm accidents and ensure accountability under the law. It is also common sense to believe that mandatory training in firearm safety and testing in firearm regulations will encourage compliance and reduce accidents — accidental gun deaths, of course, are not even counted in homicide figures.

The Court finds, moreover, that these requirements are narrowly tailored to the District's interests here. The D.C. Council obviously attempted to lighten the burden of the safety course, reducing it from five hours to only one, and requirements such as these are not unfamiliar. It is standard practice, for example, to require motorists to demonstrate their knowledge of roadway laws and safety in order to obtain a driver's license. Asking gun owners to take a short class and pass a minor test — once — in order to wield deadly weapons fits the District's interests in public safety and police protection. The firearms-safety, training, and knowledge requirements therefore satisfy intermediate scrutiny.

c. Plaintiffs' Counterargument

Plaintiffs' only counterargument is to insist that "[n]o evidence exists that training or the test protects police officers or controls crime. . . . [T]he District's experts cite no studies showing that mandatory training or testing in gun safety reduce unintentional discharges." Pl. Mot. at 36-37. As already established in this Opinion, however, the District need not prove with empirical evidence that its firearm regulations will have their intended effect, see Part III.2.b, supra — it "may rely on any evidence that is 'reasonably believed to be relevant,'" Alameda Books, 535 U.S. at 438 (quoting Renton, 475 U.S. at 51-52), including "anecdotes . . . history, consensus, and simple common sense." Lorillard Tobacco, 533 U.S. at 555 (internal quotation marks omitted). The expert testimony here — as well as the commonsense notion that training gun owners in firearms safety and regulation will likely reduce accidents and increase accountability — is enough for the provisions at issue to survive intermediate scrutiny.

4. The One-Pistol-Per-Month Limit

The next provision Plaintiffs have challenged limits District residents to registering one pistol every 30 days. See D.C. Code § 7-2502.03(e). The rule includes an exception for new District residents, who may register multiple pistols in a single month "if those pistols were lawfully owned in another jurisdiction for a period of 6 months prior to the date of the application." Id. The Court proceeds as it did before: burden, intermediate scrutiny, Plaintiffs' counterarguments.

a. Burden of This Limit

Defendants argue that the one-pistol-per-month limit does not substantially burden the Second Amendment right, but since the Heller II court has already found otherwise, see 670 F.3d at 1255, the Court must accept that finding and subject the restriction to intermediate scrutiny.

b. Evidence Regarding This Limit

As it did for the three previously discussed challenges, the District has again put forward substantial evidence linking the one-pistol-per-month limit to a reduction in illegal gun trafficking. The D.C. Council's Committee on the Judiciary relied on a number of empirical studies linking multiple gun purchases to gun trafficking, including:
• A study showing that "handguns involved in bulk purchases were 33% more likely to be used in crime than handguns purchased individually," 2012 Report at 15 (citing Mona Wright et al., Factors Affecting a Recently Purchased Handgun's Risk for Use in Crime Under Circumstances that Suggest Gun Trafficking, 87 J. URBAN HEALTH: BULL. OF THE NEW YORK ACAD. OF MED. 352, 356 (2010));
• A study showing that in Maryland "multiple-gun sales were up to 64% likely to be used in crime," id. (citing Christopher S. Koper, Crime Gun Risk Factors: Buyer, Seller, Firearm, and Transaction Characteristics Associated with Gun Trafficking and Criminal Gun Use, Report to the National Institute of Justice 6, 83 (2007), available at https://www.ncjrs.gov/pdffiles1/nij/grants/221074.pdf (last visited May 15, 2014));
• A study showing that Virginia's one-pistol-per-month limit "reduced by 66% the odds that a crime gun was purchased in Virginia rather than elsewhere in the Southeast." Id. (citing Douglas Weil & Rebecca Knox, Effects Limiting Handgun Purchases on Interstate Transfer of Firearms, 275 J. AM. MED. ASS'N 1759, 1760 (1996)).


On remand, the District has further supplemented this already-impressive array of evidence with the testimony of several of its expert witnesses, who all support the one-pistol-per-month limit as a way to combat gun trafficking. Jones reflects: "In my experience, laws that limit the quantity of firearms that can be purchased or registered during a given time period make it more difficult for firearms traffickers to acquire and resell guns from that municipality or state." Jones Decl., ¶ 18. If gun registrations are capped, Jones explains, "llegal gun sellers must then travel farther to obtain their goods, limiting their ability to employ local straw purchasers and generally reducing or removing the illegal seller's capacity to profit from his or her gun sales." Id. Jones says that his experience as an ATF agent in the District confirmed these observations. See id., ¶¶ 19-20. Vince, too, backs the limitation on multiple handgun sales: "In my opinion, one of the most effective methods of disrupting illegal interstate trafficking of firearms are state and local laws that limit the quantity of firearms that can be purchased or registered during a given time period." Vince Decl., ¶ 17. He endorses the District's version of the limitation: "I believe that the District's current law, which limits an individual to registering no more than one pistol during a 30-day period, is an effective means of limiting the illegal trafficking of guns into (or out of) the District." Id., ¶ 18; see also Lanier Decl., ¶ 30 ("In my opinion, the District's prohibition on registering more than one newly acquired handgun per month provides important benefits in terms of deterring and controlling the trafficking of firearms into or out of the District."). The limit, in short, prevents gun trafficking by limiting the flow of new handguns into the community.

The Court notes, furthermore, that Jones's testimony suggests an additional justification for the restriction unrelated to gun trafficking: It is a way to limit misuse of firearms by limiting access to multiple firearms. See Jones Decl., ¶ 17. In backing the limitation on this basis, Jones explains that his experience and his research have convinced him that "the single greatest risk factor for being murdered with a firearm, committing suicide with a firearm, or being injured by unintentional discharge of a firearm, is the easy availability of a firearm." Id. Limiting District residents to one pistol each month, in other words, will reduce the overall number of firearms in circulation within city bounds and thereby decrease the risk that District residents will be killed or injured, or will kill themselves, with a firearm. That decrease is obviously related to the District's substantial interest in promoting public safety. Although the Second Amendment "protects a personal right to keep and bear arms," including handguns, "for lawful purposes, most notably for self-defense within the home," McDonald, 130 S. Ct. at 3044, the Amendment has not been read to protect the right to amass a personal armory with a single stop at the gun shop. While the District must respect the right of each resident to possess a handgun in his home for self-defense, it is also well within its constitutional powers to constrain the rate at which its residents accumulate deadly weapons. All in all, this combination of empirical research and expert testimony constitutes substantial evidence supporting the D.C. Council's judgment that a one-pistol-per-month registration limit will reduce illegal gun trafficking and promote public safety.

The limit, moreover, is narrowly tailored to those interests. The District has applied the rule only to pistols, rather than to all guns, and it permits new residents who own several pistols to grandfather all of them in at once. The District might have adopted a less restrictive limit on multiple-gun purchases — one pistol per week, for example — but intermediate scrutiny does not require it to use the least restrictive means possible, see Heller II, 670 F.3d at 1258, and even under the current limitation, District residents can still accumulate up to 12 new pistols each year. That is more than enough. The limitation is therefore not substantially broader than necessary to achieve the District's interests in this case and it survives intermediate scrutiny.

c. Plaintiffs' Counterarguments

Plaintiffs stand at the ready with two arguments against the District's evidence on this point — one empirical and the other more abstract. Neither is convincing.

First, Plaintiffs question the reliability of the studies cited by the District, noting that there is no evidence that the District's own one-pistol-per-month limit has had any beneficial effects since it was enacted in 2009 and that several of the studies to which the District cites addressed either individual states without firearm registries or multiple states without regard to whether they had firearm registries or not. Yet this objection does little to discredit the D.C. Council's judgment on the matter. Although the research cited by the District may not be perfect, it is clearly sufficient to support a reasonable inference that limitations on multiple gun registrations, such as the one at issue here, will help to reduce illegal gun trafficking.

Second, Plaintiffs question the theory behind the limitation, since, as Lanier concedes in her deposition, it does not seem likely that an aspiring gun trafficker would purchase multiple pistols in the District and then seek to register them before passing them along to his customers. See Pl. Reply, Exh. 24 (Plaintiffs' Excerpted Deposition of Cathy Lanier, Part II) at 5-7. Yet this critique, ironically, is practically an argument for the restriction in question: Precisely because gun traffickers are unlikely to attempt to register their wares, the one-pistol-per-month limitation allows D.C. law enforcement to identify and prosecute would-be criminals who have unregistered pistols in their possession. Plaintiffs, moreover, once again overstate the degree of "fit" required in this case. As explained earlier, intermediate scrutiny demands only that the challenged regulation fit its objectives reasonably, not perfectly. See Schrader, 704 F.3d at 990. The provision must "promote[] a substantial government interest that would be achieved less effectively absent the regulation." Turner I, 512 U.S. at 662 (emphasis added) (internal quotation marks and citation omitted). By making it harder to purchase multiple handguns in a short period of time, the limitation likely deters at least some potential traffickers in the District who would have continued to ply their trade in the absence of the regulation. This is all the law requires for the limitation to survive intermediate scrutiny.