Grace v. District of Columbia ( 2016 )

UNITED STATES DISTRICT C()UR'I``
FOR THE DISTRICT OF COLUMBIA
MATTHEW GRACE and PINK PISTOLS,
Plaintiffs,
v. Civil Case No. 15-2234 (RJL)
DISTRICT OF COLUMBIA and CATHY
LANIER, in her official capacity as
Chief of Police for the Metrop0litan Police
Department,
Defendants.
€S€\/%é\/%/§\J€&
v*b~
MEMoRANDUM oPIN1oN
(May 11 , 2016) [Dkt. #6]
In 2008, the Supreme Court recognized for the first time that "the Second
Amendment conferred an individual right to keep and bear arms." District of Columbz'a
v. Heller, 554 U.S. 570, 595 (2008). As such, it struck down as unconstitutional the
District of Columbia’s ("the District’s") total ban on handguns in the home. Ia’. at 635.
Since then, various courts have considered a multitude of challenges to gun laws,
charting the contours of a constitutional right that has been the people’s since the infancy
of our Nation. In this case, plaintiffs Matthew Grace ("Grace") and the Pink Pistols
challenge the constitutionality of yet another lavv, and set of regulations, enacted by the
District. ln particular, they contend that the District’s requirement that applicants for a
license to carry a concealed firearm demonstrate a "good reason to fear injury to his or
her person or property" or "any other proper reason for carrying a pistol," as further
defined by District law and regulations (collectively "the ‘ good reason’ requirement"), is
inconsistent with the individual right to bear arms under the Second Amendment and
therefore unconstitutional. See Compl. W 11-15 [Dkt. #l] (quoting D.C. Code
§ 22-4506(a)). Presently before the Court is plaintiffs’ Motion for a Preliminary and/or
Permanent Injunction to enjoin the District and Chief of Police Cathy Lanier
("defendants" or "the District") from enforcing the "good reason" requirement. Pls.’
Mot. for Prelim. and/or Permanent Inj. [Dkt. #6]. Upon consideration of the record, the
relevant law, and the pleadings, briefs, and oral arguments submitted and presented by
the parties and the amici curiae, l find that plaintiffs have demonstrated a substantial
likelihood of success on the merits of their claim that the District’s "good reason"
requirement is unconstitutional, that they will suffer irreparable harm absent preliminary
injunctive relief, and that the equities and the public interest weigh in plaintiffs’ favor. I
will therefore GRANT plaintiffs’ request for a preliminary injunction prohibiting the
District from requiring individuals to comply with the "good reason" requirement when
applying for a concealed carry permit.
Statutory and Regulatory Background
In Heller, the Supreme Court held that the District’s ban on the possession of
handguns in the home violated the Second Amendment. 554 U.S. at 635. Shortly
thereafter, the District adopted the Firearms Registration Amendment Act of 2008
("FRA"), 56 D.C. Reg. 1365-80 (Feb. 13, 2009), to conform to the Supreme Court’s
ruling and to provide a "new scheme for regulating firearms." Heller v. District of
2
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and is instead "enshrined with the scope [it was] understood to have when the people
adopted [it.]" Ia'. at 634-35. Thus, a "historical understanding of the scope of the right"
is critical to the analysis. Ia’. at 625.
The Supreme Court identified several "longstanding prohibitions on the
possession of firearms," and emphasized "nothing in [the] opinion should be taken to cast
doubt on" them. Ia’. at 626-27 (citing "prohibitions on the possession of firearms by
felons and the mentally ill, [] laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, [and] laws imposing conditions and
qualifications on the commercial sale of arnis"). The Court stated these laws are a non-
exhaustive set of "presumptively lawful regulatory measures," z``a'. at 627 n.26, but it "did
not explain why" that is so. United States v. Chester, 628 F.3d 673, 676 (4th Cir. 20l0).
In Heller II, our Circuit Court clarified that longstanding regulations are presumptively
lawful because they have "long been accepted by the public," and are therefore presumed
not to cover "activities . . . protected from regulation by the Second Amendment." 6 670
F.3d at l253. Although our Circuit Court has yet to address the issue of the burden of
proof, it seems only fair that the Government should bear the burden of demonstrating
" Of course, there is a familiar concept in First Amendment jurisprudence, where the classic examples of
longstanding regulations are "[l]aws punishing libel and obscenity." Nev. C0mm ’n on Elhics v. Carrigan,
564 U.S. ll7, 122 (20l l). Such laws do not implicate the freedom of speech, because they "existed in
l79l and have been in place ever since." la'. As the Supreme Court has explained, a "universal and long-
established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is
constitutional: Principles of liberty fundamental enough to have been embodied within constitutional
guarantees are not readily erased from the Nation’s consciousness." Id. (quoting Republican Parly of
Minn. v. White, 536 U.S. 765, 785 (2002)); cf Mclntyre v. Ohi0 Elections Comm’n, 514 U.S. 334, 375
(1995) (Scalia, J., dissenting) ("A governmental practice that has become general throughout the United
States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of
constitutionality.").
ll
that a challenged regulation is "longstanding" and therefore enjoys a presumption of
constitutionality. See, e.g., Kolbe v. Hogan, 813 F.3d 160, 176 (4th Cir. 2016) ("[I]t it is
the government’s burden to establish that a particular weapon or activity falls outside the
scope of the Second Amendment right."), reh ’g en banc granted, No. 14-1945, 2016 WL
851670 (4th Cir. Mar. 4, 20l6); Ezell v. Cz``ly ofChicago, 651 F.3d 684, 702»03 (7th Cir.
201 l) (stating the government does not establish a challenged regulation "fall[s] outside
the scope of the Second Amendment right . . . where the historical evidence is
inconclusive or suggests that the regulated activity is not categorically unprotected"). If
the Government meets this burden, a plaintiff in this Circuit may still rebut the
presumption by showing that "the regulation does have more than a de minimis effect
upon [his or her Second Amendment] right." Heller 11, 670 F.3d at 1253.
Here, the parties present two potentially dispositive questions. First, is the Second
Amendment’s applicability limited only to the home? Second, does the "good reason"
requirement enjoy a presumption of constitutionality that cannot be rebutted? If the
answer to either question is "yes," the plaintiffs lose at step one because the Second
Amendment has not been implicatcd.7 If the answer to both is "no," the Second
7 In their opening brief, plaintiffs took pains to answer the first question, but defendants responded that
plaintiffs’ arguments regarding the reach of the Second Amendment "defeat[] a straw man." Defs.’
Opp’n to Pls.’ Appl. for a Prelim. and/or Permanent Inj. 16 [Dkt #20] [hereinaf``ter "Def``s.’ Opp’n"].
Although defendants are not willing to concede the right to bear arms extends outside the home, Defs.’
Opp’n 17 n.9, they say the real issue here is whether the Second Amendment specifically protects a right
to bear arms in a "densely populated city, filled with unique, high-risk security targets, without any
specific self-defense reason." Defs.’ Opp’n l6. Because they address different questions, the parties
often talk past each other. l find it necessary to address each question separately, not only for the sake of
clarity and thoroughness, but because plaintiffs’ argument regarding the Second Amendment’s
applicability outside the home sets the stage for defendants’ opposition.
12
Amendment applies, and the Court must proceed to step two.
1. The Second Amendment’s Applicability ls Not Limited to the Home.
Plaintiffs rely on the text and history of the Second Amendment to argue that the
individual rights therein extend beyond the threshold of the home. Pls.’ Mem. 9~19. As
is the case with all constitutional provisions, the meaning of the Second Amendment "is
to be interpreted according to standard tools of statutory interpretation, beginning with its
text." Nuclear Energy Insl., Inc. v. EPA, 373 F.3d 1251, 1312 (D.C. Cir. 2004); see also
Noel Canm'ng v. NLRB, 705 F.3d 490, 495 (D.C. Cir. 2013) ("When interpreting a
constitutional provision, [a court] must look to the natural meaning of the text as it would
have been understood at the time of the ratification of the Constitution."). The Second
Amendment states, "A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be infringed." The
Supreme Court has explained that "[a]t the time of the founding, as now, to ‘bear’ meant
to ‘carry."’ Heller, 554 U.S. at 584. One does not typically think of "carrying" as an
activity exclusively done within the home. See Peruta, 742 F.3d at 1152 ("Speakers of
the English language will all agree: ‘bearing a weapon inside the home’ does not exhaust
this definition of ‘carry."’). Thus, reading the Second Amendment right to "bear" arms
as applying only in the home is forced or awkward at best, and more likely is counter-
textual. See Bonz``dy v. U.S. Postal Serv., 790 F.3d 1l2l, 1125 (l0th Cir. 20l5); Moore v.
Madz``gan, 702 F.3d 933, 936 (7th Cir. 2012). Moreover, the Supreme Court recognized
that when "bear" is used with "‘arms’ . . . the term has a meaning that refers to carrying
13
for a particular purpose-confrontation." Heller, 554 U.S. at 584; see also z'a’. (stating
that as used in the Second Amendment, the phrase to "bear arms" means to "wear, bear,
or carry [arms] upon the person or in the clothing or in a pocket, for the purpose of being
arrned and ready for offensive or defensive action in a case of conflict with another
person" (alterations omitted) (quoting Muscarello v. Unitea’ States, 524 U.S. 125, 143
(1998) (Ginsburg, J., dissenting))). Surely confrontations do not occur only in the home,
and therefore "[t]o confine the right to be armed to the home is to divorce the Second
Amendment from the right of self-defense described in Heller and McDonald." Moore,
702 F.3d at 937. Indeed, confrontations that might necessitate self-defense are less likely
to occur in the home than on the streets of a city with many dangerous neighborhoods.
See, e.g., Pls.’ Supplemental Br. in Supp. of Their App. for a Prelim. and/or Permanent
Inj. 2 [Dkt. #40] (citing the Bureau of Justice Statistics and stating "18.4% of violent
crimes occur at or in the victim’s home, while 26.5% occur on the street or in a parking
lot or garage"). Thus, the textual analysis, when viewed with a touch of common sense
and logic, weighs heavily in favor of finding that the right to bear arms reaches beyond
one’s doorstep.g Finally, I would emphasize that a legitimate need to protect oneself can
8 indeed the Supreme Court, in undoubtedly carefully selected language, has hinted the Second
Amendment has application in settings other than the home, See McDonald, 56l U.S. at 780 (plurality
opinion) ("[T]he Second Amendment protects a personal right to keep and bear arms for lawful purposes,
most notably for self-defense within the home." (emphasis added)); Heller, 554 U.S. at 628 (stating the
"the need for defense of self, family, and property" that is "central to the Second Amendment right" is
"nzost acute" in the home (emphasis added)). Furthermore, the Supreme Court recently vacated and
remanded an opinion by the Massachusetts Supreme Judicial Court that held there is no Second
Amendment right to keep and carry stun guns. Caetano v. Massachusetts, 136 S. Ct. l027 (2016) (per
curiam). Without reading too much into what was left unsaid, I note that, as the petitioner there was
prosecuted for carrying a stun gun in a supermarket parking lot, the case certainly presented the
14
arise at the drop of a hat. Thus, the right to "carry weapons in case of confrontation,"
Heller, 554 U.S. at 592 (emphasis added), necessarily includes a right to carry firearms to
protect oneself against unanticipated and suddenly arising threats. Cf Heller, 554 U.S. at
679 (Stevens, J., dissenting) (acknowledging "the reality that the need to defend oneself
may suddenly arise in a host of locations outside the home").
Not surprisingly, such a reading is also supported by the historical record. The
Second Amendment "codified a pre-existing right," Heller, 554 U.S. at 592, and
therefore the first step in the historical inquiry is examining the right we inherited from
English and natural law. England’s Bill of Rights of 1689 provided that "the subjects
which are Protestants, may have arms for their defense suitable to their conditions, and as
allowed by law." 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. As William
Blackstone explained, "the subjects of England [were] entitled . . . to the right of having
and using arms for self-preservation and defence," which stems from "the natural right of
resistance and self-preservation." l William Blackstone, Commentaries *139-4(). Early
commentators on this side of the pond described the right in substantially similar terms.
See, e.g., 1 St. George Tucker, Blackstone’s Commentaries, App. 300 (1803) [hereinafter
"Tucker’s Blackstone"] (stating the that right to keep and bear arms "may be considered
the true palladium of liberty" and that "[t]he right of self defence is the first law of
nature"); Heller 554 U.S. at 585 ("Justice James Wilson interpreted the Pennsylvania
opportunity for any of the Justices to assert the view that the Second Amendment right does not extend to
public spaces. None did.
15
Constitution’s arms-bearing right . . . as a recognition of the natural right of defense ‘of
939
one’s person or house’_what he called the law of ‘self-preservation. (emphasis added)
(quoting 2 Collected Works of James Wilson ll42, and n. x (K. Hall & M. Hall eds.
2007))). Notably, these sources in no way suggest that the right to have and use arms in
self-defense was considered a domiciliary right.
Moreover, it is unquestionable that the public carrying of firearms was widespread
during the Colonial and Founding Eras. And although this fact alone does not directly
prove that the people had a right to do so, see Mc[nlyre, 514 U.S. at 360 (Thomas, J.
concurring) ("[T]he simple fact that the Framers engaged in certain conduct does not
necessarily prove that they forbade its prohibition by the govemment."), it does provide
an essential context for what the people who ratified the Second Amendment understood
bearing arms to entail. Indeed, in the Colonial Period, carrying arms publicly was not
only permitted~it was often required! "[A]bout half the colonies had laws requiring
arrns-carrying in certain circumstances." Nicholas J. Johnson et al., Firearms Law and
the Second Amendment 106 (2012). For example, in Virginia colonists were forbidden
from traveling unless they were well armed, and they were required to "bring their pieces
to church." Ia’. (citing William Walter Hening, l The Statutes at Large; Being a
Collection of all the Laws of Virginia from the First Session of the Legislature in the
Year l6l9, at 198 (1823)). In 1639, a Newport, Rhode Island law provided that "noe
man shall go two miles from the Towne unarmed, eyther with Gunn or Sword; and that
none shall come to any public Meeting without his weapon." Ia’. at 107 (citing l Records
16
of the Colony of Rhode Island and Providence Plantations, in New England 94 (John
Ressull Bartlett ed., 1856)).
St. George Tucker, an eminent legal scholar and jurist, observed in 1803 that "[i]n
many parts of the United States, a man no more thinks, of going out of his house on any
occasion, without his rifle or musket in hand, than an European fine gentleman without
his sword by his side." 5 Tucker’s Blackstone at App. 19. Plaintiffs’ brief and an amicus
brief filed by historians and legal scholars in the Wrenn litigation cite multiple instances
of our Founding Fathers carrying or advocating for carrying of firearms_including in
populated areas. See Pls.’ Mem. 15-l6; Br. of Amici Curiae Historians, Legal Scholars,
and CRPA Found. in Supp. of Appellees and in Supp. of Affinnance 20-23, Wrenn v.
District of Columbia, No. 15 7057 (D.C. Cir. Oct. 7, 2015) [hereinafter "Historians &
Scholars Br."]. For example, when George Washington traveled between Alexandria and
Mount Vernon he holstered pistols to his saddle, "[a]s was then the custom." Pls.’ Mem.
15 (quoting Benjamin Ogle Tayloe, In Memoriam 95 (1872)). Patrick Henry lived "just
north of Hanover town, but close enough for him to walk to court, his musket slung over
his shoulder to pick off small game . . . ." Historians & Scholars Br. 21 (quoting Harlow
Giles Unger, Lion of Liberty 30 (2010)). Thomas Jefferson, who in an oft~cited letter
advised his nephew to have his gun as a "constant companion on [his] walks," Pls.’ Mem.
15 (citing 1 The Writings of Thomas Jefferson 398 (H.A. Washington ed., 1853)), once
left his pistol at an inn between Monticello and Washington, D.C. and asked two
friends-both members of Congress-to retrieve it and bring it to him at the White
17
House, Historians & Scholars Br. 22-23. Regarding the Boston Massacre, John Adams
stated, "every private person is authorized to arm himself; and on the strength of this
authority l do not deny the inhabitants had a right to arm themselves at that time for their
defense." Pls.’ Mem. 15-16 (quoting John Adams, First Day’s Speech in Defense of the
British Soldiers Accused of Murdering Attucks, Gray, and Others, in the Boston Riot of
1770, in 6 Masterpieces ofE1oquence 2569, 2578 (Hazeltine et al. eds. 1905)).
Finally, and importantly, Antebellum Era jurisprudence confirms that the right to
bear arms includes a right to carry weapons in public for self-defense. See Noel Cannz``ng,
705 F.3d at 501 ("The interpretation of [a constitutional provision] in the years
immediately following [its] ratification is the most instructive historical analysis in
discerning the original meaning."). Nine state constitutional provisions were adopted
from the late eighteenth century to the early nineteenth century, "which enshrined a right
of citizens to ‘bear arms in defense of themselves and the state’ or ‘bear arms in defense
of himself and the state."’ Heller 554 U.S. at 584-85 (citing provisions).9 1n the early
nineteenth century, several jurisdictions enacted laws that regulated the manner in which
firearms could be carried in public by prohibiting the carrying of concealed weapons.
See Leider, 89 Ind. L.J. at 1601-06. When these concealed carry bans were challenged as
9 These provisions predate the Second Amendment’s application to the states through the Due Process
Clause of the Fourteenth Amendment. See McDonald, 561 U.S. at 79l. Nevertheless, their earliest
interpretations are evidence of the Second Amendment’s meaning, including its application outside the
home, because "nineteenth-century courts viewed the Second Amendment and state analogues as
codifying the same preexisting right to bear arms." Robert Leider, Our Non-Originalist Right to Bear
Arms, 89 lnd. L.J. 1587, 1591 n.l8 (2014). Moreover, nineteenth century courts at times invoked the
Second Amendment in their discussion of the right. See, e.g, Nunn v. State, 1 Ga. 243, 250-51 (1846);
Stale v. Chandler, 5 La. Ann. 489, 490 (1850).
18
antithetical to the right to bear arms, courts almost uniformly upheld them, provided that
open carry was not also prohibited.l° See, e.g., State v. Rez'a’, l Ala. 612, 619 (1840)
("[T]he Legislature cannot inhibit the citizen from bearing arms openly because [the state
constitution] authorizes him to bear them for the purposes of defending himself and the
State, and it is only when carried openly, that they can be efficiently used for defence.");
Nunn, 1 Ga. at 250 (stating a prohibition of concealed carry was constitutionally
permissible "inasmuch as it d[id] not deprive the citizen of his natural right of self-
defense, or of his constitutional right to keep and bear arms" but making clear that a
simultaneous "prohibition against bearing arms openly" would be "in conflict with the
Constitution, and voz``d"); Chana’ler, 5 La. Ann. at 490 (stating the right to carry arms
openly for self-defense "is the right guaranteed by the Constitution of the United
States").l‘ As the open carrying of weapons at issue was not occurring inside homes, see,
e.g., Rez'a’, l Ala. at 612-13, these cases are powerful evidence of a "publz'c
understanding," Heller, 554 U.S. at 605, that the right to bear arms includes a right to
carry arms outside the home for the purpose of self-defense.
‘° For outliers, see Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 91~92 (1822) (holding a prohibition of
concealed-but not open-carry of firearms impermissibly "restrain[ed] the full and complete exercise
of" the right to bear arms); State v. Buzzard, 4 Ark. 18, 27 (1842) (opinion of Ringo, C.J.) (endorsing the
state’s authority to prohibit the carrying of arrns, whether concealed or open, except that done "to defend
the[] free state and the established institutions of the country").
" Defendants argue "judicial decisions in the l800s by courts in the Southem States" should be excluded
from the analysis because they "come from ‘a time, place, and culture where slavery, honor, violence, and
the public carrying of weapons were intertwined."’ Defs.’ Opp’n 13 (quoting Eric M. Ruben & Saul
Cornell_, Firearm Regionalism and Public Carry: Placing Southem Antebellum Case Law in Context, 125
Yale L.J. Forum 121, 129 (2015)). The Southem cases’ relevance is indeed the subject of an academic
debate, but the practical reality is that Heller relied on these very cases as probative of the Second
Amendment’s original meaning See 554 U.S. at 612 (citing, inter alia, Nunn and Chandler). 1 am in no
position to entertain arguments to the contrary.
19
Given the textual and historical evidence, 1 have little trouble concluding that
under its original meaning the Second Amendment protects a right to carry arms for self-
defense in public. Of course, Judge Scu1lin already reached this same conclusion in
Palmer. 59 F. Supp. 3d at 182. And, not surprisingly, the Court of Appeals panels that
have directly addressed the issue have also reached the same conclusion. See Moore, 702
F.3d at 936 ("A right to bear arms thus implies a right to carry a loaded gun outside the
home."); Peruta, 742 F.3d at 1166 ("T]he carrying of an operable handgun outside the
home for the lawful purpose of self-defense, though subject to traditional restrictions,
constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.") (alteration
in original). And other circuits have at least been willing to so assume. See Bonz'a’y, 790
F.3d at 1l25; Woollara’ v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2014); Drake v. Fz``lko,
724 F.3d 426, 431 (3d Cir. 2013); Kachalsky v. Counly of Westchester, 701 F.3d 81, 89
(2d Cir. 2012). Indeed, no Court of Appeals to date has found to the contrary.
2. Defendants Are Unlikely to Demonstrate an Unrebutted
Presumption of Constitutionality for the District’s "G00d Reas0n"
Requirement.
Concluding that there is a right to carry arms in self-defense in public places, of
course, does not resolve the extent of that right. Just as it is inside the home, the Second
Amendment right outside the home is not unlimited, see Heller, 554 U.S. at 626, and is
“subject to traditional restrictions." Palmer, 59 F. Supp. 3d at 181 (D.D.C. 2014). In this
vein, the District persists that the conduct governed by the "good reason" requirement
falls outside the scope of the Second Amendment because pursuant to an alleged
20
Columbia ("Heller 11"), 670 F.?>d 1244, 1249 (D.C. Cir. 20ll). The FRA required
registration of handguns but provided that individuals who were not retired police
officers could only obtain "registration of pistols for use in self-defense within the
registrant’s home" and, therefore, could not carry firearms outside the home. 56 D.C.
Reg. l365. Six years later, in Palmer v. District of Columbz'a, visiting Judge Frederick J.
Scullin, Jr.,' sitting by designation, ruled that "the carrying of an operable handgun
outside the home for the lawful purpose of self-defense, though subject to traditional
restrictions, constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment."
59 F. Supp. 3d 173, 181-82 (D.D.C. 20l4) (quoting Peruta v. Cnly. ofSan Diego, 742
F.3d 1144, ll66 (9th Cir. 2014)) (alteration in original).z He went on to hold that the
District’s "complete ban on the carrying of handguns in public [was] unconstitutional."
Id. at 183.
Undaunted, the District went back to the drawing board and, mimicking legislation
in New York, l\/laryland, and New Jersey, see Council of the District of Columbia,
Comm. on the Judiciary and Pub. Safety, Report on Bill 20-930, at 9 (2014), enacted a
concealed carry licensing scheme that became effective June l6, 2015. License to Carry
a Pistol Amendment Act of 2014, 62 D.C. Reg. 1944-57 (Feb. 6, 20l5). Under the
1 Judge Scullin is a Senior Judge of the Northem District of New York who was at that time serving as a
visiting judge in the District of Columbia by designation of the Chief Justice of the United States. See
Wrenn v. District ofColumbia, 808 F.3d 81, 83 (D.C. Cir. 20l5).
2 The Ninth Circuit Court of Appeals has since ordered that Peruta be reheard en banc. Peruta v. Cly. of
San Dz``ego, 781 F.3d l l06, l 107 (9th Cir. 20l5). Therefore, the three-judge panel’s opinion no longer has
precedential value, see ia’., but it nevertheless retains its persuasive authority, cf Coal. to End Permanent
Cong. v. Runyon, 979 F.2d 2l9, 221 (D.C. Cir. l992) ("[E]ven a vacated opinion, while no longer the law
of the case, still may carry persuasive authority.") (internal quotation marks omitted).
3
longstanding tradition, the right to bear arms does not encompass any right to carry arms
in populated, public places_including the entire District of Columbia. ’2 Defs.’ Opp’n
9-ll. indeed defendants maintain that the longstanding tradition of banning public
carrying in urban areas is so broad that the District’s comparatively less restrictive "good
reason" requirement does not even infringe upon a Second Amendment right.” Defs.’
Opp’n 9. Please. Put simply, this argument strains credulity and flies in the face of prior
litigation. Not only is it severely undercut by the historical record of public carrying of
firearms discussed above, but it was already rejected by Judge Scullin who ruled in
Palmer that the District’s complete ban on carrying firearms outside the home runs afoul
of the Second Amendment. 59 F. Supp. 3d at 182-83. Notwithstanding the fact that the
District voluntarily ivithdrew its appeal of Judge Scullin’s order, Unopposed Mot. to
Dismiss Case Voluntarily, Palmer v. District of Columbia, No. 14-7180 (D.C. Cir. Apr. 2,
2015), it is now essentially renewing this argument that was already fully litigated and
rejected by him. Moreover, defendants do not cite a single Colonial Era, Founding Era,
'ZI note that defendants certainly do not have to put forth a "longstanding tradition" to demonstrate certain
conduct falls outside the Second Amendment’s scope. While "the widespread and longstanding traditions
of our people" are among "the most weighty" evidence of a constitutional guarantee’s meaning, they are
not the only such evidence. Mclnlyre, 514 U.S. 375 (Scalia, J., dissenting). Here, however, defendants
have rested on the longstanding tradition theory, and l therefore evaluate their arguments under it.
'3 Unfortunately for defendants, the Supreme Court in Heller expressly rejected the notion that the
Districts’ ban on keeping handguns in the home was constitutionally permissible because it was "limited
to an urban area." 554 U.S. at 634. Here, defendants emphasize the District’s unique nature in that
"compared to other large cities, the District has greater public safety and national security concerns."
Defs.’ Opp’n 4. Even so, this point does not help defendants on questions of the Second Amendment’s
scope. Heller made abundantly clear that one does not surrender his or her Second Amendment rights
upon crossing the Key Bridge. Although the District may impose firearms regulations "that suit local
needs and values," its authority to do so is circumscribed by the guarantees of the Second Amendment.
McDonald, 561 U.S. at 784~85.
21
or nineteenth-century commentator, let alone jurist, espousing an urban/rural divide on
the right to carry arms."‘ Instead, defendants’ rely on the Statute of Northampton, 2 Edw. Ch.
3 (Eng. 1328), which forbade, inter alz``a, "go[ing or] rid[ing] armed by night or by day, in
Fairs, Markets." Defendants contend the Statute of Northampton and its American
analogues imposed a near-total ban on the carrying of firearms in populated, public
places from medieval times until the mid-nineteenth century. Defs.’ Opp’n 9-l2.
Unfortunately for the District, the weight of the historical evidence demonstrates that the
statute forbade only carrying weapons in a terrifying manner that threatened a breach of
the peace and not the ordinary carrying of weapons for self-defense.“
Defendants next argue that our Nation has a longstanding tradition of "strictly
regulat[ing]" the carrying of firearms by requiring an individual to set forth a specific and
"‘ To be sure, defendants were able to find eleven examples of ordinances from the late l800’s prohibiting
public carrying of weapons within city limits, almost exclusively from the frontier and Wild West. Defs.’
Opp’n l3. In addition, Everytown points to a few state and territory-wide provisions either largely
prohibiting public carrying in populated areas or giving cities the option to do so. Everytown Br. l5; see
also Unlawfully Carrying Arms, Art. 3 l7, in The Penal Code of the State of Texas 42-43 (1879). These
laws, however, are needles in a legal haystack and come nowhere close to establishing a "universal and
long-established tradition," Carrz``gan, 564 U.S. at l22, of prohibiting the carrying of firearms in
populated areas. They were in place in only an infinitesimal fraction of American jurisdictions, governed
a minute portion of the Nation’s population, and were found almost entirely in a particular, homogenous
region. Contrast with Heller 1I, 670 F.3d at 1254 (finding regulations in force in "diverse states and
cities" and "now applicable to more than one fourth of the Nation by population" to be "longstanding in
American law"). Moreover, defendants fail to establish the "standing" of "longstanding." Nowhere do
they argue that it is the norm in the United States today for the carrying of weapons in populated or public
places to be prohibited Cf Carrigan, 564 U.S. at l22 (noting libel and obscenity laws "have been in
place ever since" the Founding Era).
‘5 For American jurisprudence and commentary supporting this conclusion, see, for example, State v.
Hunlley, 25 N.C. 418, 422~23 (1843); Simpson v. Stale, 13 Tenn. 356, 358-60 (1833); Conductor
Generalis, Or, the Office, Duty, and Authority of the Justice of the Peace ll-l 2 (James Parker, ed. 1764).
For English sources see, for example, 1162; Sir John Knight’s Case, (1686) 87 Eng. Rep. 75 (K.B.) 76,
90 Eng. Rep. 330 (K.B.) 330, Comberbach,; Chune v. Piott, (l6l5) 80 Eng. Rep. ll6l (K.B.) 39; l Sir
William Oldnall Russell, A Treatise on Crimes and Indictable Misdemeanors 27l-72 (2d ed. 1826); l
William Hawkins, A Treatise of the Pleas of the Crown 489 (l824 ed.); 4 William Blackstone,
Commentaries *148-49.
22
personal reason to fear for his or her safety before being authorized to carry a firearm in
public. Defs. Br. ll-l2. In support thereof they point to defendants cite an obsolete
District law that provided:
If any person shall go armed with a dirk, dagger, sword, pistol, or other
offensive and dangerous weapon, without reasonable cause to fear an
assault or other injury or violence to his person, or to his family or property,
he may, on complaint of any person having reasonable cause to fear an
injury or breach of the peace be required to find sureties for keeping the
peace for a term not exceeding six months . . . .
Of Proceedings to Prevent the Commission of Crimes, § 16, in The Revised Code of the
District of Columbia 567, 570 (1857) [hereinafter "D.C. Surety Law"]. From 1836 to
1891, similar surety laws were adopted in Massachusetts, Wisconsin, Maine, Michigan,
Virginia, Minnesota, Oregon, Pennsylvania, and West Virginia.m Defendants maintain
these statutes were "precursor[s]" to the "good reason" requirement and that the
jurisdictions that adopted them permitted public carrying of firearms only when an
individual had "reasonable cause to fear an assault or other injury or violence to his
person." Defs.’ Opp’n ll. l disagree.
"’ Of Proceedings to Prevent the Commission of Crimes, § l6, in Revised Statutes of the Commonwealth
of Massachusetts 748, 750 (l836); An Act to Prevent the Commission of Crimes, § l6, in Statutes of the
Territory of Wisconsin 379, 381 (1839); Of Proceedings for Prevention of Crimes, § l6 (1840), in The
Revised Statutes of the State of Maine 707, 709 (1841); Of Proceedings to Prevent the Commission of
Crimes, § l6, in The Revised Statutes of the State of Michigan 690, 692 (1846); For Preventing the
Commission of Crimes, § 8, in Code of Virginia 755, 756 (l849); Of Proceedings to Prevent the
Commission of Crimes, § l8, in The Revised Statutes of the Territory of Minnesota 526, 528 (l85l);
Proceedings to Prevent Commission of Crimes, § 17, in The Statutes of Oregon 2l8, 220 (1854);
Proceedings to Detect the Commission of Crimes, § 6 , in A Digest of the Laws of Pennsylvania 248, 250
(John Purdon comp., 1862); For Preventing the Commission of Crimes, § 8, in The Code of West
Virginia 702, 703 (l870).
" Defendants also use these statutes to support their argument that public carrying of firearms was almost
entirely prohibited in the Northern United States and those prohibitions went unchallenged in that region.
23
The District’s law was located in the section of the Code regarding the
recognizance system under which magistrates could order certain individuals to pay a
surety guaranteeing they would "keep the peace towards all the people of this District."
D.C. Surety Law § 4. The provision’s language and context, however, strongly suggest
that it did not criminalize public carrying of weapons absent "reasonable cause," but
instead provided a mechanism for preventing crimes under which individuals with reason
to believe another person was likely to breach the peace or injure someone with a weapon
could seek law enforcement intervention. See z``d. § 1 (providing that judges and justices
of the peace "shall have the power to cause all laws made for the preservation of the
public peace to be kept, and, in the execution of that power, may require persons to give
security to keep the peace, or for their good behavior, or both . . .").‘8 lt also seems a fair
inference that a respondent could defend himself by demonstrating the complainant had
no grounds to fear he would cause an injury or breach the peace. The statutes from other
jurisdictions referenced by defendants were almost all virtually identical to the District’s
Defs.’ Opp’n l3. Defendants contend that plaintiffs cannot demonstrate a "widely understood national
consensus that individuals had a pre-existing right to carry in populated areas" by pointing to the "fact
that some [Southern] states wanted broader public-carrying rights" than those afforded in the North.
Defs.’s Opp’n 13. Defendants conf|ate the burden. Plaintifs have a right to bear arms, and defendants
seek to prove that carrying weapons in public places without a specific "good" or "proper" self-defense
need is somehow outside the purview of that right. If they are to prevail, it is defendants who must bear
the burden of demonstrating such conduct has long been understood throughout the Nation to be
unprotected by the right to bear arms.
‘8 Everytown makes much of section headings in these statutes; for example, the Minnesota provision was
located next to the heading "Persons carrying offensive weapons, how punished." Of Proceedings to
Prevent the Commission of Crimes, § 18, in The Revised Statutes of the Territory of Minnesota 526, 528
(185 l). But "the heading of a section cannot limit the plain meaning of the text." Trat'nmen v. Baltt``more
& Oht``o R. Co., 331 U.S. 5l9, 528-29 (1947).
24
in language and context.” l am therefore skeptical, at best, of defendants’ interpretation
of the surety laws as providing for public carrying only upon a showing of a specific
reason to fear for one’s safety. Regardless, the consequence imposed by the surety laws
was merely the payment of a bond guaranteeing one would not breach the peace. See,
e.g., D.C. Surety Law § l6. In contrast, those who carry a firearm in the District today
without a license, which would be issued only upon satisfaction of the "good reason"
requirement, face not only hefty fines but also up to five years in prz'son! D.C. Code
§22-4504(3)(1). This dramatic disparity in penalties leads me to believe the "good
reason" requirement is not "truly the heir[] to" the surety laws. Jonathan Meltzer, Open
Carry for All: Heller and Our Nineteenth-Century Second Amendment, 123 Yale L.J.
1436,1510n.101(2014).
Even assuming arguerzdo, however, that defendants are correct and that the "good
reason" requirement qualifies as a longstanding regulation,zo under our Circuit Court’s
framework it would only be afforded a presumption of constitutionality. Heller II, 670
'° But see For Preventing the Commission of Crimes, § 8, in Code of Virginia 755, 756 (1849) (omitting
the language requiring the complainant to have "reasonable cause to fear an injury or breach of the
peace"); For Preventing the Commission of Crimes, § 8, in The Code of West Virginia 702, 703 (l 870)
(same).
20 Setting the surety laws aside, defendants hint at, but do not develop, the argument that the "good
reason" requirement itself could squeak in to qualify as a "longstanding" regulation under Heller II. The
first such requirement was enacted in New York in l9l3, and New Jersey’s statute has existed "in some
form for nearly 90 years." Drake, 724 F.3d at 432; compare Hel/er II, 670 F.3d at 1253-54 (finding
registration requirements enacted between 1881 and l927 to be longstanding). Defendants further state
that currently twenty-three percent of the Nation’s population is governed by a "good reason" statute.
Defs.’ Opp’n l5-l6 (referencing New York, New Jersey, Maryland, and California); compare Heller II,
670 F.3d at 1253-54 (finding basic registration requirements to be "longstanding" in part because they are
applicable to approximately twenty-five percent of the Nation’s population but also noting such
requirements were traditionally accepted in "diverse" jurisdictions throughout the country).
25
F.3d at 1253. Plaintiffs could then rebut that presumption "by showing the regulation
does have more than a de miminis effect upon" their Second Amendment right to bear
arms for self-defense. Id. This they could do, because the "good reason" requirement
covers the precise conduct, carrying arms, for the precise reason, self-defense, that the
text and historical record make clear the Second Amendment was intended to protect.
Further, it is simply beyond dispute that requiring individuals to possess certain self-
defense needs that the District deems worthy before they are permitted to carry a firearm
"meaningfully affect[s] individual self-defense, which is the central component of the
Second Amendment right." Ia’. at 1260 (internal quotation and alteration marks omitted).
The "good reason" requirement therefore imposes more than a de minimis burden on that
right. See id. at 1255 (stating a burden that “make[s] it considerably more difficult" for
individuals to exercise their Second Amendment rights is not de minimis).
Thus, l easily conclude that the plaintiffs are substantially likely to succeed on the
merits in step one. While defendants have not yet put forth all their evidence, nothing
they have presented to date leads me to believe plaintiffs are at all unlikely to prevail on
the question of whether the Second Amendment is implicated. Instead, the record
strongly indicates that even if the "good reason" requirement has a robust heritage in the
United States, it nevertheless governs-and always has governed-conduct protected by
the Second Amendment. Whether or not the District’s "good reason" requirement does
so in a constitutionally permissible manner is, of course, the subject of step two.
26
B. Step Two: The District’s Concealed Carry Scheme Is Likely
Unc0nstituti0nal.
Having found that the District’s "good reason" requirement implicates conduct
protected by the Second Amendment, I turn now to determining whether the provision
places an unconstitutional burden on that right. To make this determination, I must
decide first the appropriate level of constitutional scrutiny to apply to the District’s law,
and then whether the law passes muster under that framework. See Heller II, 670 F.3d at
1252.
1. Strict Scrutiny ls Likely the Appropriate Level of Constitutional
Scrutiny.
Although there has been some debate regarding the constitutional framework that
applies to laws burdening conduct protected by the Second Amendment, our Circuit
Court has indicated that the means-end analysis often employed in the First Amendment
context is also appropriate in analyzing Second Amendment challenges. See Heller II,
670 F.3d at 1257. Within this framework, there are three levels of scrutiny that may be
applied: strict scrutiny, intermediate scrutiny, and rational basis review. However, the
Supreme Court in Heller specifically rejected rational basis review for laws that burden
protected Second Amendment conduct, and with it the presumption that these laws are
constitutional. Ia’. at 1256 (citing Heller, 554 U.S. at 628 n.27). This necessarily means,
of course, that the District is required to justify its law under some level of heighted
Scrutiny. As to whether strict or intermediate scrutiny should apply, our Circuit Court
approaches the question, as it does in First Amendment cases, by examining "the nature
27
of the conduct being regulated and the degree to which the challenged law burdens the
right." Id. at 1257. "[A] regulation that imposes a substantial burden upon the core right
of self-defense protected by the Second Amendment must have a strong justification,
whereas a regulation that imposes a less substantial burden should be proportionately
easier to justify." Ia’. ln other words, the former receives strict scrutiny, while the latter
receives intermediate scrutiny. See z``a’. at 1266 (stating intermediate scrutiny applies to
"laws [that] do not affect the core right protected by the Second Amendment"). For the
following reasons, l have concluded that the "good reason" requirement substantially
burdens the "core right of self-defense protected by the Second Amendment," z``d. at 1257,
and l will therefore subject it to strict scrutiny.
a) The District’s "G00d Reas0n" Requirement Burdens Core
Second Amendment Conduct.
Plaintiffs argue that Heller and McDonald make clear "that the core of the
Second Amendment guarantee is the right to keep and bear arms for the purpose[] of self-
defense," and "that the core of this right to self-defense applies both inside and outside
the home." Pls.’ Mem. 7. l agree, and conclude that the text and purpose of the Second
Amendment demonstrate that the right of law-abiding, responsible citizens to carry arms
in public for the purpose of self-defense does indeed lie at the core of the Second
Amendment.z‘ As discussed previously, see supra 13-14, the text of the Second
2‘ I recognize that several Courts of Appeals considering similar statutory schemes have found otherwise.
See Drake, 724 F.3d at 436 (stating "[i]f the Second Amendment protects the right to carry a handgun
outside the home for self-defense at all, that right is not part of the core of the Amendment"); see also
Woollara’, 712 F.3d at 876; Kachalslcy, 70l F.3d at 96. As my analysis makes clear, I do not find these
28
Amendment indicates its protections include "the individual right to possess and carry
weapons in case of confrontatz'on." Heller, 554 U.S. at 592 (emphasis added). The
District’s "good reason" requirement infringes on Second Amendment activity because it
does not allow individuals to obtain a license to carry a concealed firearm in public for
legitimate self-defense purposes, including for protecting themselves from non-
particularized threats faced by the general community and from unanticipated, suddenly
arising threats.
The question, then, is whether the right to carry arms in public for self-defense
lies at the "core" of the Second Amendment. ln Heller, the Supreme Court held that the
right to "l562 U.S. 443, 460 (201 l) ("Our holding today is narrow. We are required in First
Amendment cases to carefully review the record, and the reach of our opinion here is limited by the
particular facts before us. As we have noted, ‘the sensitivity and significance of the interests presented in
clashes between First Amendment and [state law] rights counsel relying on limited principles that sweep
no more broadly than the appropriate context of the instant case."’ (quoting Florida Star v. B.J. F., 491
U.S. 524, 533 (1989))).
30
current law, "[n]o person shall carry within the District of Columbia either openly or
concealed on or about their person, a pistol, without a license issued pursuant to District
of Columbia law . . . ." D.C. Code §22-4504(a). The law provides for a multi-hurdle
process for obtaining a concealed carry license, but the open carrying of firearms is, of
course, still prohibited. See ia’. § 7-2509.07(€); Transcript of Prelim. Inj. Proceedings at
48 [Dkt. #33]. Applicants for a concealed carry license must meet a variety of age,
criminal history, personal history, mental health, and physical requirements. D.C. Code
§§ 7-2502.03; 7-2509.02. Thereafter, they must satisfactorily complete a mandatory gun
training and safety program and an in-person interview with a member of the
Metropolitan Police Department to verify the information included in their application
forrn. D.C. Code §§ 7-2509.02(a)(4), (f). Of relevance here, however, is a different
hurdle embedded in a provision which states that the Chief of the Metropolitan Police
Department "may" issue otherwise suitable applicants a license to carry a concealed
firearm only if "it appears that the applicant has good reason to fear injury to his or her
person or property or has any other proper reason for carrying a pistol . . . ." Ia'.
§ 22-4506(a).
Chief Lanier was directed to issue rules establishing criteria for determining
whether an applicant has shown "good reason to fear injury to his or her person" or
another "proper reason for carrying a concealed pistol." D.C. Code § 7-2509.l l(l). The
criteria to determine "good reason to fear injury to his or her person" were "at a minimum
[to] require a showing of a special need for self-protection distinguishable from the
4
responsible citizens" whose Second Amendment rights are entitled to full protection
under Heller. As Heller made clear, "the Second Amendment right is exercised
individually and belongs to all Americans." 554 U.S. at 581. To the extent that historical
prohibitions excluded certain classes of people from the Second Amendment’s
protections, those classes do not include "law-abiding, responsible citizens." Ia’. at 635;
see also ia’. at 626 (noting that "longstanding prohibitions on the possession of firearms
by felons and the mentally ill" are presumptively constitutional). Moreover, there is
nothing about those excluded from the right to carry in public by the District’s "good
reason" requirement that would suggest that they somehow lie outside the core
protections of the Second Amendment. Cf Schrader v. Hola’er, 704 F.3d 980, 989 (D.C.
Cir. 2013) (finding common-law misdemeanants fall outside the Second Amendment’s
core protections because they "cannot be considered law-abiding and responsible").
Without citation to the text or to historical support, defendants respond by
arguing that a prohibition on bearing arms that is "completely contained in a dense urban
setting filled with critical official and symbolic buildings, monuments, and events, and
high-profile public officials" does not burden core Second Amendment conduct. Defs.’
Opp’n 17 (internal quotation marks omitted). Although a jurisdiction’s unique
characteristics could be relevant in the means-end analysis, on the record before me they
provide no guidance for the inquiry into what protections are at the core of the Second
Amendment. The District also makes reference to longstanding "laws that prohibit the
carrying of firearms in sensitive places such as schools and govemment buildings" and
31
seem to argue that the entire District of Columbia could be considered such a sensitive
place. Defs.’ Opp’n 17. But the District has already provided that citizens with
concealed carry licenses may not carry firearms in many sensitive places that require
extra regulation, belying the notion that the whole of the District falls into the same
category.” Again, defendants point to no textual or historical evidence as support for
their through-the-looking-glass view that a citizen’s right to carry a firearm for self-
defense falls outside the "core" of the Second Amendment because the citizen lives in a
densely populated and dangerous city where the need for self-protection is elevated. Nor
do they wrestle with how downgrading a citizen’s rights merely because he or she lives in
the same 68 square mile city as many of our Nation’s leaders is consistent with our
Constitution. I therefore reject these arguments wholesale.
b) The District’s "G00d Reason" Requirement Imposes a
Substantial Burden on Core Second Amendment Conduct.
If, as l fmd, the District’s "good reason" requirement burdens core Second
Amendment conduct, then the question remains whether it "substantial[ly]" burdens such
conduct and therefore must withstand strict scrutiny. See Heller II, 670 F.3d at 1256-57
(noting strict scrutiny is not always required when a fundamental right is at stake). For
the following reasons, l have concluded: it surely does.
23 Concealed carry licensees are precluded from carrying their firearms in many sensitive areas including
government buildings, school and university buildings and campuses, hospitals, polling places while
voting is occurring, public transportation vehicles including the Metrorail transit system and its stations,
stadiums and arenas, the public memorials on the National Mall and along the Tidal Basin, the area
around the White House, the U.S. Capitol buildings and grounds, and the U.S. Naval Observatory and its
perimeter. D.C. Code §7-2509.07(a). Plaintiffs do not challenge these limitations, Pls.’ Mem. 26, and an
injunction in this case would not affect them.
32
Plaintiffs argue that the District’s public carry law, although disguised as "a
licensing requirement," actually "amounts to a total ban on the exercise of the Second
Amendment right to bear anns by typical, law-abiding citizens." Pls.’ Mem. 2l.
Defendants, not surprisingly, could not disagree more. F ar from a "wholesale ban,"
defendants liken the District’s "good reason" requirement to "time, place, manner
restrictions" of protected speech. Defs.’ Opp’n 17; see Clark v. Cmly. for Creatz``ve Non-
Vz'olence, 468 U.S. 288, 293 (1984) ("We have often noted that [reasonable time, place,
and manner restrictions] are valid provided that they are justified without reference to the
content of the regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels for
communication of the information."). Indeed, in the District’s view, the requirement
"speaks not to who may carry a handgun, but when a handgun may be carried: after the
applicant develops a non-speculative need for armed self-defense." Defs.’ Opp’n 18. As
such, defendants argue the law does not "destroy" any particular person’s right to carry a
gun for self-defense because any person could, at some point, face a threat that rises to
the level necessary to be issued a license under the District’s "good reason" requirement.
Ia’. Unfortunately for the District, such arguments border on the frivolousl How so?
Turning first to defendants’ "insignificance argument," l cannot possibly agree
that the burden imposed by the statute at issue is as insignificant as that of a "time, place,
and manner restrictions" on speech that leave open "ample alternative channels of
communication." See, e.g., Ward v. R0ck Against Racz``sm, 491 U.S. 781, 791 (1989)
33
(upholding sound amplification guideline designed to control noise levels at open-air
bandshell events); Hef]?on v. Int’l S0c. for Krz``shna Conscz``ousness, Inc., 452 U.S. 640(1981) (upholding state fair rule, prohibiting sale or distribution on fair grounds of any
merchandise including printed or written material, except from a fixed location). To the
contrary, the law at issue is a far cry from the regulations that have been upheld by other
courts under intermediate scrutiny as similar to time, place, and manner restrictions,
including registration requirements and regulations banning the carrying of certain types
of guns.
In Heller II, our Circuit Court considered several "novel" registration
requirements for firearm ownership, including requirements that applicants submit the
firearm for a ballistics-identification procedure, initially appear in person for registration
and re-register each firearm after three years, and a limitation that only one firearm be
registered per person in a 30-day period. Although our Circuit Court found that these
laws burdened core Second Amendment conduct, it subjected them to intermediate
scrutiny because the burden was not "substantial." 670 F.3d at 1257~58. To support this
view, our Circuit Court noted that "none of the District’s registration requirements
prevents an individual from possessing a firearm in his home or elsewhere, whether for
self-defense or hunting, or any other lawful purpose." Ia’. at 1258. The same cannot be
said, however, of the District’s "good reason" requirement, which precludes carrying a
handgun "without any specific self-defense reason." Defs.’ Opp’n 16. Indeed, the
requirement’s intended effect is to prohibit the typical citizen from carrying a firearm
34
outside his or her home for several legitimate and constitutionally protected purposes-
including when in dangerous neighborhoods, where the need for protection is as
undeniable as it is unfortunate, or for self-defense from unanticipated, suddenly arising
threats~notwithstanding the fact that he or she can successfully clear a multitude of
qualifying hurdles.
Nor can the reasoning employed to uphold bans on the possession of particular
types of firearms support the law at issue here. When a jurisdiction bans particular types
of guns, such as automatic rifles or guns with obliterated serial numbers, a law-abiding,
responsible person can preserve an undiminished right of self-defense by simply
choosing a type of gun that is permitted. Heller II, 670 F.3d at 1260~64 (applying
intermediate scrutiny to a ban on assault weapons and large-capacity magazines because
the law did not "effectively disarm individuals or substantially affect their ability to
defend themselves"); Marzzarella, 614 F.3d at 97 (finding a prohibition on possession of
unmarked firearms to be "more accurately characterized as a regulation on the manner in
which persons may lawfully exercise their Second Amendment rights" because it left a
CC
person "free to possess any otherwise lawful firearm"). Not so with the District’s good
reason" requirement. Unless a law-abiding, responsible person can predict and prove
some self-defense need beyond that of the typical person, he is wholly banned from
exercising his right to carry a gun for the purpose of self-defense outside his home. See
Peruta, 742 F.3d at 1171 (fmding prohibition on carrying in public not to be a time,
place, and manner restriction because "it precludes a responsible, law-abiding citizen
35
from carrying a weapon in public for the purpose of lawful self-defense in any manner").
As these examples reveal, the District’s "good reason" requirement places a far
more significant burden on core Second Amendment conduct than laws previously
upheld as akin to time, place, and manner restrictions. In fact, the burden is so substantial
that it is tempting, indeed, to agree with plaintiffs that the "good reason" requirement is
per se unconstitutional. The District continues to rely on the mantra "more guns equals
more crime" to prove the safety benefits of disarming typical law-abiding citizens like
Grace, who do not face a particularized threat. But there can be no doubt that at least
some of those citizens seek a carrying license for the legitimate purpose of protecting
against an unexpected confrontation. The District’s policy thus bans some citizens from
exercising their constitutional right to carry firearms outside the home for self-defense,
and no amount of proof of the negative effects of exercising a constitutional right can
justify a ban. Heller, 554 U.S. at 629 ("A statute which, under the pretence of regulating,
amounts to a destruction of the right . . . [is] unconstitutional." (quoting Reid, l Ala. at
6l6l-l7)). In the interest of judicial restraint, however, l will leave for another day the
question of whether the "good reason" requirement is per se unconstitutional. F or today,
I will simply assume that the requirement only incidentally sweeps in this sort of
protected activity and review the "good reason" requirement under the strict scrutiny
standard, which its substantial burden would most assuredly have to survive.
2. The District’s Concealed Carry Scheme Likely Fails Strict Scrutiny.
In order for the District’s law to pass muster under strict scrutiny, it must be
36
narrowly tailored to promote a compelling government interest. United States v. Playboy
Enlm ’l Grp., Inc., 529 U.S. 803, 813 (20()0); accord Heller II, 670 F.3d at 1256. Ifa less
restrictive alternative would serve the Government’s purpose, the legislature must use
that altemative. Ia’.; see also Sable Comn’cs of Cal., Inc. v. FCC, 492 U.S. 115, 126
(1989) ("The Government may . . . regulate the content of constitutionally protected
speech in order to promote a compelling interest if it chooses the least restrictive means
to further the articulated interest"). Notably, a court applying strict scrutiny must
presume the law is invalid, and "the Government bears the burden to rebut that
presumption." Plczyboy Entm ’t, 529 U.S. at 8l7.
This Court recognizes, as it must, that the District’s interests in preventing crime
and promoting public safety certainly qualify as "compelling government interests." See,
e.g., Schenck v. Pro-Choz'ce Network ofW. N.Y., 519 U.S. 357, 376 (1997) (referring to
"the significant governmental interest in public safety"); Heller 11, 670 F.3d at 1258
("[T]he Government’s general interest in preventing crime is compelling." (quoting
Unz``tea’ States v. Salerno, 481 U.S. 739, 750 (1987))). And this Court agrees with
defendants that the District’s interest in public safety is implicated by people carrying
guns in public, and certainly more so than when they keep guns within the confines of
their homes. But, unfortunately for defendants, it does not automatically follow that the
District has a compelling interest in reducing to the greatest extent possible the number of
law-abiding, responsible citizens eligible to carry guns in public, Rather, when the
District’s pursuit of public safety substantially burdens conduct protected by the Second
37
Amendment, as issuing licenses only in certain self-defense situations does, it must at the
very least prove that the policy achieves significant public safety gains and that those
gains would not be achieved by a more inclusive licensing policy.
Defendants have failed to meet these criteria, and I am skeptical that they can.
They waste much ink on the irrelevant contention that plaintiffs cannot prove that "more
guns equals less crime." In strict scrutiny review, however, defendants bear the burden
of justifying their policy. More important still, defendants do not even attempt to explain
why the District’s licensing scheme could not be broader and allow for more responsible,
law-abiding citizens to obtain concealed carry permits for their legitimate self-defense
needs, while simultaneously protecting public safety. All they offer by way of reasoning
is that all guns, even guns carried in self-defense, increase the incentive for criminals to
carry guns, or increase the chances for accidents. But as plaintiffs rightly emphasize, "it
is ‘not a permissible strategy’ to reduce the alleged negative effects of a constitutionally
protected right by simply reducing the number of people exercising the right." Pls.’
Mem. 28 (quoting City of Los Angeles v. Alamea'a Books, Inc., 535 U.S. 425, 445 (2002)
(Kennedy, J., concurring in judgment) (controlling opinion)); see also Alameda Books,
535 U.S. at 445 ("Though the inference may be inexorable that a city could reduce
secondary effects by reducing speech, . . . [t]he purpose and effect of a zoning ordinance
must be to reduce secondary effects and not to reduce speech."); Heller, 554 U.S. at 636
("[T]he enshrinement of constitutional rights necessarily takes certain policy choices off
the table.").
38
Rather, the District’s licensing restrictions would only be narrowly tailored to
achieve public safety if they were targeted at keeping guns away from the people who are
likely to misuse them or situations where they are likely to be misused. On the record
before me, I must agree with plaintiffs that defendants are unlikely to be able to show the
"good reason" requirement is narrowly tailored to this end.z" For a law to be "narrowly
tailored," it must actually advance the compelling interest it is designed to serve, see Eu
v. S.F. Counly Democratz``c Cent. Comm., 489 U.S. 2l4, 226 (1989), and it must be the
least-restrictive method of serving that interest_indeed, the burdening of a significant
amount of protected conduct not implicating the interest is evidence the regulation is
insufficiently tailored. See Ashcrofl‘ v. ACLU, 542 U.S. 656, 665-66 (2004).
Although the District’s "good reason" requirement likely does keep guns out of
the hands of some people likely to misuse them, it does so only by keeping guns out of
the hands of most people. The requirement that a person demonstrate a need for self-
defense beyond that of the typical citizen before being granted a concealed carry license
24 Defendants, for their part, do not attempt to show that the law is narrowly tailored to this end. In fact,
they concede that the "good reason" requirement was not designed to keep firearms out of the hands of
those who might be expected to misuse them, see Defs.’ Opp’n at 33~34 ("Plaintiffs argue that the ‘good
reason’ standard is ‘unrelated to the problem it intends to solve’ because ‘[t]he fact that one has a greater
need for self-defense tells us nothing about whether he is less likely to misuse or accidentally use
handguns.’ This criticism, however, misunderstands the purpose of the standard."). Rather, proceeding
on the theory that the compelling interest is in public safety generally and that more guns equal more
crime, defendants argue that the "good reason" requirement "offers a reasonable, balanced approach to
protecting the public safety and meeting an individual’s need for self-defense," ia'. at 36, and is "the result
of a ‘carefu| balancing of the interests involved’ and not a general animus towards guns." Ia'. at 38
(quoting Kachalsky, 701 F.3d at 97 n.22). Of course, such interest balancing squarely contradicts the
Supreme Court’s admonition that the "core protection" of enumerated constitutional rights should not be
"subjected to a freestanding ‘interest-balancing’ approach" because "[t]he very enumeration of the right
takes out of the hand of the government . . . the power to decide on a case-by-case basis whether the right
is really worth insisting upon." Heller, 554 U.S. at 634. Moreover, even if this type of interest-balancing
were perrnissible, it does nothing to demonstrate that the law is narrowly tailored.
39
invariably means most people will not qualify. But the fact that a person can demonstrate
a heightened need for self-defense says nothing about whether he or she is more or less
likely to misuse a gun. Pls.’ Mem. 28; see also Drake, 724 F.3d at 454 (Hardiman, J.,
dissenting) ("Put simply, the solution is unrelated to the problem it intends to solve.").
Therefore, by employing this standard, the District’s law is likely vastly over-inclusive,
burdening substantially more of the Second Amendment right than is necessary to
advance public safety. See Peruta, 742 F.3d at 1177 (explaining that a public carry
regulation is not narrowly tailored to achieve public safety if it would "not perform any
better than a random rationing system, wherein gun permits were limited to every tenth
applicant"). Because the District’s law is likely wholly disproportionate to the public
interest it could legitimately serve, there is a strong likelihood plaintiffs will ultimately
succeed in showing the law is not narrowly tailored and is, therefore, unconstitutional.
II. Plaintiffs Will Suffer Irreparable Harm Absent Injunctive Relief.
Having concluded that plaintiffs are substantially likely to succeed on their claim
that the District’s "good reason" requirement acts to deprive them of the rights
guaranteed to them by the Second Amendment, there is little need to belabor the
irreparable injury prong. Their Second Amendment rights are indeed being violated, and,
as our Circuit Court has itself made clear, "the loss of constitutional freedoms, ‘for even
minimal periods of time, unquestionably constitutes irreparable injury."’ Mz'lls v. Distrz``ct
of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elroa’ v. Burns, 427 U.S.
347, 373 (l976) (plurality opinion)); see also llA Wright, et al., Federal Practice and
40
general community as supported by evidence of specific threats or previous attacks that
demonstrate a special danger to the applicant’s life." Id. § 7-2509.1 l(l)(A). As to other
"proper reason[s]" the criteria were "at a minimum [to] include types of employment that
require the handling of cash or other valuable objects that may be transported upon the
applicant’s person." Ia’. § 7-2509.1 l(l)(B).
Chief Lanier issued regulations stating, "A person shall demonstrate a good reason
to fear injury to his or her person by showing a special need for self-protection
distinguishable from the general community as supported by evidence of specific threats
or previous attacks which demonstrate a special danger to the applicant’s life." D.C.
Mun. Regs. tit. 24, §2333.1. To satisfy this requirement, an applicant must "allege, in
writing, serious threats of death or serious bodily harm, any attacks on his or her person,
or any theft of property from his or her person" and must also "allege that the threats are
of a nature that the legal possession of a pistol is necessary as a reasonable precaution
against the apprehended danger." Id. § 2333.2. "The fact that a person resides in or is
employed in a high crime area shall not by itself establish a good reason to fear injury to
person or property for the issuance of a concealed carry license." Ia’. § 2333.4.
Furthermore, an applicant "may allege any other proper reason that the Chief may accept
for obtaining a concealed carry license," including that his or her employment "requires
the handling of large amounts of cash or other highly valuable objects that must be
transported upon the applicant’s person" or that the applicant has an immediate family
member "who is physically or mentally incapacitated to a point where he or she cannot
5
Procedure § 2948.1 (3d ed. 2013) ("When an alleged deprivation of a constitutional right
is involved, most courts hold that no further showing of irreparable injury is necessary.").
Defendants, not surprisingly, argue that this proposition should not apply to
Second Amendment harms because the right to keep and bear arms is "inherently
different" from other constitutional rights in that it "has no intrinsic value." Defs.’ Opp’n
39»40. In defendants’ view, "[i]f no occasion arises where a handgun is needed for self-
defense," the denial of the Second Amendment right to bear arms "cannot cause harm."
Defs.’ Opp’n 40. What poppycock! Just because present plaintiffs "have not identified a
single instance when their inability to carry a handgun caused them injury," does not
mean they have failed to demonstrate a likelihood of irreparable harm. Defs.’
Supplemental Br. l [Dkt. #39]. Once again, defendants, sadly, miss the point. The
Second Amendment protects plaintiffs’ right to bear firearms for self-defense~a right
that can be infringed upon whether or not plaintiffs are ever actually called upon to use
their weapons to defend themselves. See Ezell, 651 F.3d at 699 (explaining that, like
other constitutional rights, "[t]he Second Amendment protects . . . intangible and
unquantifiable interests," which "cannot be compensated by damages"). The right to bear
arms enables one to possess not only the means to defend oneself but also the self-
confidence_and psychic comfort_that comes with knowing one could protect oneself if
necessary. Moreover, while this Court is not permitted to recognize "a hierarchy
among. . . constitutional rights," Caplz'n & Drysdale, Chta’ v. Um``ted States, 491 U.S.
617, 628 (1989), the Supreme Court has nevertheless made clear that the Second
4l
Amendment is not a "second-class right," McDonald, 561 U.S. at 780-81 (plurality).
Thus, because plaintiffs are likely to succeed in showing their Second Amendment rights
are being infringed each and every day the District continues to enforce the "good
reason" requirement, they have more than adequately demonstrated irreparable injury.
III. The Balance of the Equities and the Public Interest Also Weigh in Plaintiffs’
Favor.
The final factors 1 must consider are the balance of the equities and public interest.
See Nken v. Holder, 556 U.S. 418, 435 (2009) (noting these two factors "merge when the
Government is the opposing party"). As a preliminary matter, l emphasize, as plaintiffs
have, that "enforcement of an unconstitutional law is always contrary to the public
interest." Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013); see also Hobby Lobby
Slores, Irzc. v. Sebelius, 723 F.3d 1114, 1145 (l0th Cir. 20l3) ("[I]t is always in the
public interest to prevent the violation of a party’s constitutional rights.") (internal
quotation marks omitted)), a]j"d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751 (20l4). This is the case even though it is otherwise presumed that, "any time a
State is enjoined by a court from effectuating statutes enacted by the representatives of its
people, it suffers a form of irreparable injury." Maryland v. King, 133 S. Ct. 1, 3 (20l2)
(Roberts, C.J., in chambers). Because plaintiffs are likely to prevail in showing that their
Second Amendment rights are being violated, the public interest weighs heavily in favor
of granting their requested injunction.
Undaunted, the District argues that granting the requested injunction "would
42
clearly have a negative impact on thousands of District residents and visitors, because of
the uncertain public impact of allowing untold numbers of concealed handguns to be
carried on the streets of the city." Defs.’ Opp’n 41. Defendants appear to reach this
conclusion based on the assumption that "automatic issuance of concealed-carry licenses"
would result from the requested injunction Defendants’ hyperbole, however, is not only
unwarranted but irresponsible. As plaintiffs point out, they are "not seek[ing] an
unfettered right to bear arms free from any regulation or oversight by the District." Pls.’
Mem. 38. Indeed, enjoining the District’s "good reason" requirement would have no
effect whatsoever on a veritable gauntlet of other licensing requirements which would
remain intact, including: (l) compliance with a wide range of requirements to even
qualify to register a firearm in the District_, e.g., age, criminal history, mental health,
personal history, and certain physical requirements; (2) successful completion thereafter
of a firearms training program; and (3) an in-person interview with the Metropolitan
Police Department. D.C. Code § 7-2509.02. One can only wonder what evidence, if any,
the District could muster to demonstrate that the type of people who would be willing and
able to successfully complete this regulatory gauntlet would nevertheless be likely to
pose a safety risk to the greater community. More importantly, perhaps, the requested
injunction would have no impact on the District’s complete prohibition of (l) carrying
without a license, D.C. Code § 22-4504(a); (2) carrying in specified places including
government buildings, schools, the National Mall, the area surrounding the White House,
public transportation vehicles, and stadiums, ia'. § 7-2509.07(a); and (3) carrying by
43
violent felons, drug addicts, and other prohibited persons, z'd. §§ 7-2502.03(a); 7-
2509.02(a); 22-4503. Under these circumstances, the Court finds that the public interest
and the balance of the equities weigh heavily in favor of granting plaintiffs’ request for a
preliminary injunction.
IV. Issuing a Permanent Injunction Would Be Imprudent.
Finally, in addition to a preliminary injunction, plaintiffs request a permanent
injunction. "[W]hen the eventual outcome on the merits is plain at the preliminary
injunction stage, the judge should, after due notice to the parties, merge the stages and
enter a final judgment." Morris v. District of Columbia, 38 F. Supp. 3d 57, 62 n.l
(D.D.C. 2014) (quoting Curtz's I()OO, Inc. v. Suess, 24 F.3d 941, 945 (7th Cir. l994)).
Plaintiffs argue a permanent injunction is appropriate now because the "final outcome of
this case does not depend on any facts that may be presented at trial, and because there is
no genuine uncertainty about what the outcome of this case will be on the merits." Pls.’
Mem. 40. Plaintiffs point to Moore, in which the Seventh Circuit remanded for issuance
of a permanent injunction after finding a Second Amendment challenge did not present
any evidentiary issues and that "another round of historical analysis" was unnecessary.
Pls.’ Mem. 40-41 (quoting Moore, 702 F.3d at 942). Defendants counter that the
important issues at stake here are deserving of a full record and additional briefing. They
state that "[i]t makes no sense to undertake this significant inquiry on consideration of a
preliminary injunction, where the parties and amici are constrained by an expedited
schedule and strict briefing limitations." Defs.’ Opp’n 44. Defendants request the
44
.-.-,-...~la,w~».~\s…,>. \i, l
opportunity to develop the facts supporting their argument that the "good reason"
requirement survives means-end scrutiny. Defs.’ Opp’n 44. They point out that our
Circuit Court remanded claims for additional factual development in Heller II, 670 F.3d
at 1259~60. Defs.’ Opp’n 44. l agree with defendants. Unlike the situation in Morrz``s,
the parties here did not come to an agreement that the resolution of the preliminary
injunction "also resolves the merits of the case." Morris, 38 F. Supp. 3d at 62. And
unlike the Court of Appeals for the Seventh Circuit, I have an obligation as a district
court judge to oversee the development of a full record, not only to inform my decision-
making process but to aid our Court of Appeals when they ultimately review the case.
Finally, while I believe plaintiffs are highly likely to succeed on the merits, this case
presents novel issues for our Circuit Court, issues on which other Courts of Appeal have
reached the contrary conclusion. As such, caution dictates that I pause before declaring
"there is n0 genuine uncertainty about what the outcome of this case will be on the
merits." Pls.’ Mem. 40 (emphasis added). Accordingly, I will DENY plaintiffs’ motion
for a permanent injunction.
CONCLUSION
In Heller, the Supreme Court’s unequivocally asserted that "the enshrinement of
constitutional rights necessarily takes certain policy choices off the table." Heller, 554
U.S. at 636. The District’s understandable, but overly zealous, desire to restrict the right
to carry in public a firearm for self-defense to the smallest possible number of law-
abiding, responsible citizensis exactly the type of policy choice the Justices had in mind.
45
Because the right to bear arms includes the right to carry firearms for self-defense both in
and outside the home, I find that the District’s "g0od reason" requirement likely places an
unconstitutional burden on this right. Accordingly, I hereby GRANT plaintiffs’ request
for a preliminary injunction and enter an order that enjoins the District of Co1umbia from
denying concealed carry licenses to applicants who meet all eligibility requirements other
than the "good reason" requirement. An order consistent with this decision accompanies
this Memorandum Opinion.
United States District Judge
46
act in defense of himself or herself’ and who "can demonstrate a good reason to fear
injury to his or her person by showing a special need for self-protection distinguishable
from the general community . . . ." Id. § 2334.1.
FACTUAL AND PROCEDURAL BACKGROUND
The laws and regulations at issue here were first challenged in Wrenn v. Distrz``ct of
Columbz'a, 107 F. Supp. 3d 1 (D.D.C. 2015). This Court’s calendar committee assigned
that case to visiting Senior Judge Scullin, and in granting the plaintiffs’ Motion for a
Preliminary injunction he held that the "good reason" requirement likely "r[an] afoul of
the Second Amendment." Id. at l2. On appeal, however, our Circuit Court ruled that
Judge Scullin’s designation to this Court "was limited to specific and enumerated cases"
and that Wrenn was "not one of those cases." Wrenn, 808 F.3d at 83. Accordingly, the
Circuit Court vacated Judge Scullin’s order.3 Ia’. at 84. Shortly thereafter, on December
22, 2()15, the plaintiffs in this case filed a challenge to these same laws in a new
complaint against defendants the District of Columbia and Chief Lanier, in her official
capacity. See Compl. On December 28, 2015, plaintiffs moved for a preliminary and/or
permanent injunction. See Pls.’ Mot. for a Prelim. and/or Permanent Inj.
Plaintiff Grace is a law-abiding, responsible United States citizen and resident of
the District. Compl. 11 2, l6. He owns four handguns and has lawfully registered them
with the District. Compl. 11 17. He would like to carry them outside his home for self-
3 The Circuit Court afflrmed, however, the validity of Judge Scullin’s designation to preside over Palmer.
See Wrenn, 808 F.3d at 83.
6
defense and has completed the firearm training required under District law to obtain a
concealed carry license. Compl. 11 17. Grace concedes he does not face any specific
threat that differentiates him from a typical resident of the District; however, several
events have contributed to his desire to carry a concealed handgun including his wife
being robbed on a public street, the discovery of shell casings in front of his home on the
sidewalk, and robberies at gunpoint that occurred in his neighborhood and for which
there has been no arrest. Compl. 11 18. ln August 2015, Grace applied for a District of
Columbia concealed carry license. Compl. 11 20. The application asked him to state his
"special need for self-protection distinguishable from the general community" or any
other "proper reason" to carry a firearm under District law. Compl. 11 20. Having none,
Grace cited the Second Amendment instead. Compl. 11 20. On October 19, 2015, his
application was denied on the grounds that he did not demonstrate a "good reason to fear
injury to person or property, or other proper reason for a concealed carry license."
Compl. 11 2l. This was the sole basis for the rejection of his application. Compl.
1111 21-22.
The Pink Pistols is a shooting group, of which Grace is a member. Compl. 1111 3,
l6. The group advocates for "the use of lawfully owned, lawfully concealed . . . firearms
for the self-defense of the sexual minority community." Compl. 11 3. The Pink Pistols
has dozens of chapters across the country and is open to all regardless of sexual
orientation. Compl. 11 3. The group believes, as Justice Alito recognized in McDonala’ v.
Cz``ly of Chicago, that “the right to keep and bear arms . . . is especially important for
7
3
women and members of other groups that may be especially vulnerable to violent crime.’
Compl. 1 3 (quoting 561 U.S. 742, 790 (2010) (controlling opinion)). The Pink Pistols
maintain that the District’s "restrictive carry laws are a direct affront to [its] central
mission." Compl.1l 3.
Arguing the District’s "good reason" requirement violates the Second
Amendment, plaintiffs request a preliminary and/or permanent injunction (l) forbidding
defendants from denying concealed carry licenses to applicants who meet all of the
District’s eligibility requirements other than the "good reason" requirement;
(2) forbidding defendants from enforcing the District’s laws and regulations establishing
and further defining the "good reason" requirement, and (3) directing defendants to issue
concealed carry licenses to Grace and other members of the Pink Pistols, who, apart from
the "good reason" requirement are eligible for a concealed carry license. Pls.’ Proposed
Order l-2 [Dkt. #6-2]. Plaintiffs do not challenge any other aspect of the District’s
licensing scheme. Mem. of P. & A. in Supp. Pls.’ Appl. for a Prelim. and/or Permanent
Inj. 7 [Dkt. #6-1] [hereinafter "Pls.’ Mem."].
On February 2, 2016, I heard arguments on plaintiffs’ motion from the parties and
from amici curiae the National Rifle Association, on behalf of plaintiffs, and Everytown
for Gun Safety ("Everytown"), on behalf of defendants. Those amici also submitted
briefs [Dkts. ##21, 22], as did amicus curiae the Brady Center to Prevent Gun Violence
[Dkt. #31]. Ultimately, our Court of Appeals issued its mandate in Wrenn on February 5,
2016, and, on February 9, 2016, that case was reassigned to my colleague Judge
8
Kollar-Kotelly. Wrenn v. District ofColumbz'a, 2016 WL 912174, at *5 (D.D.C. Mar. 7,
20l6). Following the reassignment, Judge Kollar-Kotelly chose not to hear oral
argument and instead, on March 7, 2016, issued an opinion denying the Wrenn plaintiffs’
motion for a preliminary injunction. Id. at *l5. Not surprisingly, the Wrenn plaintiffs
filed a notice of appeal as to that decision the same day. Notice of Appeal, Wrenn v.
District of Columbia, No. 15-162 (D.D.C. Mar. 7, 2()l6).
ANALYSIS
When ruling on a motion for preliminary injunction, the Court must consider
"whether (l) the plaintiff has a substantial likelihood of success on the merits; (2) the
plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction
would substantially injure other interested parties; and (4) the grant of an injunction
would further the public interest." Sottera, I)'ic. v. Fooa' & Drug Aa’min., 627 F.3d 891,
893 (D.C. Cir. 20l0) (intemal quotation marks omitted)." I will address each of these
factors in turri.§
"“The first component of the likelihood of success on the merits prong usually examines whether the
plaintiffs have standing in a given case." Kingman Park Civic Ass’n v. Gray, 956 F. Supp. 2d 230, 241
(D.D.C. 20l3). l find that Grace has demonstrated standing, as he "invoked his rights under the Second
Amendment to challenge the statutory classifications used to bar his [carrying] of a handgun under D.C.
law, and the formal process of application and denial, however routine, makes the injury to [Grace’s]
alleged constitutional interest concrete and particular." Parker v. District ofColumbia, 478 F.3d 370, 376
(D.C. Cir. 2007), ajj’d sub nom., Heller, 554 U.S. 570. lt is therefore unnecessary to address defendants’
argument that the Pink Pistols lacks standing See Common Cause v. Biden, 909 F. Supp. 2d 9, 17-18
(D.D.C. 20l2) ("If the Court finds that one of the Plaintiffs has standing, it need not consider the standing
of the other Plaintiffs.").
5 Our Circuit has traditionally applied a "sliding scale" approach to these four factors, Davis v. Pensz'on
Benefit Guar. Corp., 571 F.3d 1288, l29l (D.C. Cir. 2009), under which "a strong showing on one factor
could make up for a weaker showing on another." Sherley v. Sebelz``us, 644 F.3d 388, 392 (D.C. Cir.
201 l). Following the Supreme Court’s decision in Winter v. NRDC, Inc., 555 U.S. 7 (2008), however,
9
Mru»»~».-.i»s~¢~,t~., _ t
I. Plaintiffs Have Demonstrated a Substantial Likelihood of Success on the
Merits.
Our Circuit employs a two-step approach to determining the constitutionality of
gun laws, Heller II, 670 F.3d at 1252~53. The Court firsts asks "whether a particular
provision impinges upon a right protected by the Second Amendment." Ia'. at 1252. If it
does not, there is no reason for further inquiry. If it does, however, the Court then
"determine[s] whether the provision passes muster under the appropriate level of
constitutional scrutiny." Ia’.
A. Step One: The "Go0d Reason" Requirement Likely Impinges Upon A
Right Protected by the Second Amendment.
In Heller, the Supreme Court held the Second Amendment secures at least "the
right of law-abiding, responsible citizens to use arms in defense of hearth and home."
554 U.S. at 635. The Court did not, however, "undertake an exhaustive historical
analysis . . . of the full scope of the Second Amendment[.]" Ia’. at 626. lt therefore left
open the questions of whether, and to what extent, the Second Amendment protects a
right to carry arms for self-defense outside the home. Heller made clear, however, that
the Second Amendment right to keep and bear arms, like other constitutional rights, is
"not unlimited" and "include[s] exceptions." 554 U.S. at 595, 635. At the same time, it
is not a malleable provision that bends to "future judges’ assessments of its usefulness"
our Circuit Court "has suggested, without deciding, that Winler should be read to abandon the sliding-
scale analysis in favor of a ‘more demanding burden’ requiring Plaintiffs to independently demonstrate
both a likelihood of success on the merits and irreparable harm.” Smz``th v. Henderson, 944 F. Supp. 2d
89, 95-96 (D.D.C. 2013) (citing Sherley, 644 F.3d at 392). Regardless of how Winter is read, the Court’s
analysis here is unaffected because I conclude that plaintiffs have made a sufficient showing of both a
likelihood of success on the merits and irreparable harrn.
10