SCULLIN, Senior Judge.
Currently before the Court are Plaintiffs' motion for summary judgment and
In their complaint, Plaintiffs assert two claims for relief. In their first claim, Plaintiffs allege that, "[b]y requiring a permit to carry a handgun in public, yet refusing to issue such permits and refusing to allow the possession of any handgun that would be carried in public, Defendants maintain a complete ban on the carrying of handguns in public by almost all individuals." See Dkt. No. 1, Complaint at ¶ 39. Plaintiffs also contend that "Defendants' laws, customs, practices and policies generally banning the carrying of handguns in public violate the Second Amendment to the United States Constitution, facially and as applied against the individual plaintiffs in this action, damaging plaintiffs in violation of 42 U.S.C. § 1983." See id. at ¶ 40.
In their second claim for relief, Plaintiffs allege that "Defendants' laws, customs, practices and policies generally refusing the registration of firearms by individuals who live outside the District of Columbia violate the rights to travel and equal protection secured by the Due Process Clause of the Fifth Amendment to the United States Constitution, facially and as applied against the individual plaintiffs in this action, damaging plaintiffs in violation of 42 U.S.C. § 1983." See id. at ¶ 42.
Plaintiffs seek relief in the form of an Order permanently enjoining Defendants, "their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing D.C.Code § 7-2502.02(a)(4) to ban registration of handguns to be carried for self-defense by law-abiding citizens[.]" See id. at WHEREFORE Clause. Furthermore, Plaintiffs seek an Order permanently enjoining Defendants, "their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing D.C.Code § 22-4504(a), OR, in the alternative, ordering [D]efendants to issue licenses to carry handguns to all individuals who desire such licenses and who have satisfied the existing requirements, aside from residence requirements, for the registration of a handgun[.]" See id. Finally, Plaintiffs seek an Order permanently enjoining Defendants, "their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from denying firearm registration and handgun carry permit applications made by otherwise qualified individuals on account of lack of residence within the District of Columbia[.]" See id.
The parties do not dispute the basic facts that underlie this action. D.C.Code § 72502.01(a) provides that "no persons or organization in the District shall possess or control any firearm, unless the persons or organization holds a valid registration certificate for the firearm." D.C.Code § 7-2502.02(a)(4) provides that individuals who are not retired police officers may only register a handgun "for use in self-defense within that person's home." Pursuant to this statutory limitation, Defendants distribute handgun registration application forms requiring applicants to "give a brief statement of your intended use of the firearm and where the firearm will be kept."
D.C.Code § 22-4504(a) provides that "[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, or any deadly or dangerous weapon capable of being so concealed." The first violation of this section by a non-felon is punishable by a fine up to $5,000 and imprisonment of up to five years.
Former D.C.Code § 22-4506 empowered the District of Columbia's police chief to issue licenses to carry handguns to individuals, including to individuals not residing in the District of Columbia. However, it was Defendant District of Columbia's policy for many years not to issue such licenses. On December 16, 2008, the District of Columbia's City Council and Mayor repealed the Police Chief's authority to issue handgun carry licenses. Accordingly, the District of Columbia lacks any mechanism to issue handgun carry licenses to individuals.
Plaintiff Palmer, a resident of the District, would carry a functional handgun in public for self-defense but refrains from doing so because he fears arrest, prosecution, fine, and imprisonment as he does not possess a license to carry a handgun. Plaintiff Palmer sought to register a handgun in the District of Columbia so that he might carry it for self-defense. On or about May 12, 2009, Defendant Lanier denied Plaintiff Palmer's application to register a handgun for the following reason:
Defendant Lanier subsequently approved Plaintiff Palmer's application to register the handgun for home self-defense.
Plaintiff George Lyon, a resident of the District, would carry a functional handgun in public for self-defense but refrains from doing so because he fears arrest, prosecution, fine, and imprisonment as he does not possess a license to carry a handgun in Washington, D.C. Plaintiff Lyon is licensed to carry handguns in the states of Virginia, Utah, and Florida. He has approximately 240 hours of firearms training, of which approximately 140 hours relate specifically to handguns. Plaintiff Lyon sought to register a handgun in the District of Columbia so that he might carry it for self-defense. On or about April 8, 2009, Defendant Lanier denied Plaintiff Lyon's application to register a handgun for the following reason:
Defendant Lanier subsequently approved Plaintiff Lyon's application to register the handgun for home self-defense.
At the time Plaintiffs filed this action, Plaintiff Raymond was not a resident of the District, was enrolled as a student in the Franklin Pierce Law Center in New Hampshire, was employed as a Patent Examiner and owned a home in Waldorf, Maryland. Plaintiff Raymond holds a Master of Business Administration degree as well as a Master of Science degree in Electrical Engineering. He has started various successful businesses and is an honorably discharged Navy veteran.
On April 6, 2007, District of Columbia Police stopped Plaintiff Raymond for allegedly speeding. At that time, Plaintiff Raymond held valid permits to carry a handgun issued by the states of Maryland and Florida and still holds those permits. Although Plaintiff Raymond was never charged with a traffic violation, he was charged with carrying a pistol without a license because his loaded handgun was located in his car's center console. Plaintiff Raymond subsequently pled guilty to misdemeanor possession of an unregistered firearm and unregistered ammunition. He successfully completed a sentence of probation.
Plaintiff Raymond would carry a functional handgun in public for self-defense while visiting and traveling through the District of Columbia but refrains from doing so because he fears another arrest and prosecution as well as fine and imprisonment as he does not possess a license to carry a handgun in the District of Columbia. On June 26, 2009, Plaintiff Raymond sought to register a handgun in the District of Columbia, but he was refused an application form because of his lack of residence in the District.
Plaintiff Amy McVey, a resident of the District, would carry a functional handgun in public for self-defense but refrains from doing so because she fears arrest, prosecution, fine, and imprisonment as she does not possess a license to carry a handgun in the District of Columbia. Plaintiff McVey is licensed by the state of Virginia to publicly carry a handgun.
Plaintiff McVey sought to register a handgun in the District of Columbia so that she could carry it for self-defense. On July 7, 2009, Defendant Lanier denied her application to register a handgun for the following reason:
Plaintiff Second Amendment Foundation, Inc. ("SAF") is a non-profit membership organization incorporated under the laws of Washington with its principal place of business in Bellevue, Washington. SAF has more than 650,000 members and supporters nationwide, including in the District of Columbia. The purposes of SAF include education, research, publishing and legal action focusing on the Constitutional right to privately own and possess firearms and the consequences of gun control. SAF expends its resources encouraging the exercise of the right to bear arms and advising and educating its members, supporters, and the general public about the law with respect to carrying handguns in the District of Columbia. The issues raised by, and consequences of, Defendants' policies are of great interest to
The Supreme Court's decisions in Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), direct the Court's analysis of Plaintiffs' claims. In Heller, the plaintiffs mounted a Second Amendment challenge to a District of Columbia law that "totally ban[ned] handgun possession in the home" and "require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock[.]" Heller, 554 U.S. at 603, 628, 128 S.Ct. 2783. The validity of the challenged measures depended, as a preliminary matter, on whether the Second Amendment codified an individual right or a collective right. See id. at 577, 128 S.Ct. 2783. After consulting the text's original public meaning, the Court concluded that the Second Amendment codified a pre-existing, individual right to keep and bear arms and that the "central component of the right" was self-defense. See id. at 592, 599, 128 S.Ct. 2783. Furthermore, the Court held that, because "the need for defense of self, family, and property is most acute in the home," the D.C. ban on the home use of handguns "the most preferred firearm in the nation" failed "constitutional muster" under any standard of heightened scrutiny. Id. at 628-29, 128 S.Ct. 2783 & n. 27. The same was true for the trigger-lock requirement. See id. at 635, 128 S.Ct. 2783. The Heller Court concluded that it did not need to "undertake an exhaustive historical analysis ... of the full scope of the Second Amendment" to dispose of the case. Id. at 626, 128 S.Ct. 2783. Nor did the Court have a reason to specify, for future cases, which burdens on the Second Amendment right triggered which standards of review, or whether a tiered-scrutiny approach was even appropriate in the first place. See id. at 628-29, 128 S.Ct. 2783. By any measure, the Court found that the District of Columbia statute overreached.
Two years later, in McDonald, the Court evaluated a similar handgun ban that the City of Chicago had enacted. The question presented in McDonald, however, was not whether the ban infringed the Chicago's residents' Second Amendment rights, but, rather, whether a state government could even be subject to the strictures of the Second Amendment. The answer to that question depended on whether the right was "`deeply rooted in this Nation's history and tradition'" and "fundamental to our scheme of ordered liberty[.]" McDonald, 130 S.Ct. at 3036. The Court stated that its "decision in Heller point[ed] unmistakably to the answer." Id. The Court explained that self-defense, recognized since ancient times as a "basic right," was the "central component" of the Second Amendment guarantee. Id. Thus, the Court concluded that that right restricted not only the federal government but, under the Fourteenth Amendment, also the states. See id. at 3026. Having reached that conclusion, the Court remanded the case to the Seventh Circuit for an analysis of whether, in light of Heller, the Chicago handgun ban infringed the Second Amendment right. See id. at 3050.
Neither Heller nor McDonald speaks explicitly or precisely to the scope of the Second Amendment right outside the home or to what it takes to "infringe" that right. However, both opinions, at the very least, "point[ed] in a general direction." Ezell v. City of Chicago, 651 F.3d 684, 700
Id. at 1150.
In analyzing the issues in this case, the Court must apply the two-step approach that the District of Columbia Circuit set forth in Heller v. Dist. of Columbia (Heller II), 670 F.3d 1244 (D.C.Cir. 2011). The first question requires this Court to decide whether the restricted activity, in this case, a restriction on a responsible, law-abiding citizen's ability to carry a gun outside the home for self-defense falls within the Second Amendment right to keep and bear arms for the purpose of self defense. See Peruta, 742 F.3d at 1150 (citing Ezell, 651 F.3d at 701; Kachalsky v. County of Westchester, 701 F.3d 81, 90 (2d Cir. 2012)). To determine the precise methods by which that right's scope is discerned, the Supreme Court has directed, in both Heller and McDonald, that courts must consult "both text and history." Heller, 554 U.S. at 595, 128 S.Ct. 2783, McDonald, 130 S.Ct. at 3047).
As the Court noted in Heller, "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad." Heller, 554 U.S. at 634-35, 128 S.Ct. 2783. To arrive at the original understanding of the right, "we are guided by the principle that `[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning'" unless evidence suggests that the language was used idiomatically. Id. at 576, 128 S.Ct. 2783 (quoting United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220,
As the court noted in Peruta, "[t]he Second Amendment secures the right not only to `keep' arms but also to `bear' them[,]" Peruta, 742 F.3d at 1151; and, as the Supreme Court explained in Heller, "[a]t the time of the founding, as now, to `bear' meant to `carry[,]'" Heller, 554 U.S. at 584, 128 S.Ct. 2783. "Yet, not `carry' in the ordinary sense of `convey[ing] or transport[ing]' an object, as one might carry groceries to the check-out counter or garments to the laundromat, but `carry for a particular purpose confrontation.'" Peruta, 742 F.3d at 1151-52 (quoting [Heller, 554 U.S. at 584, 128 S.Ct. 2783]). According to the Heller majority, the "natural meaning of `bear arms'" was the one that Justice Ginsburg provided in her dissent in Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), that is "`wear, bear, or carry... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person.'" Heller, 554 U.S. at 584, 128 S.Ct. 2783 (quoting Muscarello, 524 U.S. at 143, 118 S.Ct. 1911) (Ginsburg, J., dissenting) (quoting Black's Law Dictionary 214 (6th ed. 1998)).
Furthermore, "`bearing a weapon inside the home' does not exhaust this definition of `carry.' For one thing, the very risk occasioning such carriage, `confrontation,' is `not limited to the home.'" Peruta, 742 F.3d at 1152 (quoting Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012)). Moreover, it is beyond dispute that "the prospect of conflict at least, the sort of conflict for which one would wish to be `armed and ready' is just as menacing (and likely more so) beyond the front porch as it is in the living room." Id. Thus, "`[t]o speak of "bearing" arms within one's home would at all times have been an awkward usage.'" Id. (quotation omitted). In addition, the Heller Court stated that the Second Amendment secures "the right to `protect[ ] [oneself] against both public and private violence,' ... thus extending the right in some form to wherever a person could become exposed to public or private violence." United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011) (Niemeyer, J., specially concurring) (quoting [Heller, 128 S.Ct.] at 2798, 2799). Moreover, the Heller Court emphasized that the need for the right was "most acute" in the home, Peruta, 742 F.3d at 1153 (citing Heller, 554 U.S. at 628, 128 S.Ct. 2783), "thus implying that the right exists outside the home, though the need is not always as "`acute.'" Id. (citing McDonald, 130 S.Ct. at 3044 (2010) ("[T]he Second Amendment protects a personal right to keep and bear arms for lawful
This Court agrees with the Ninth Circuit's statement in Peruta that "[t]hese passages alone, though short of dispositive, strongly suggest that the Second Amendment secures a right to carry a firearm in some fashion outside the home." Peruta, 742 F.3d at 1153. "Reading those lines in light of the plain meaning definition of `bear Arms' elucidated above makes matters even clearer; the Second Amendment right `could not rationally have been limited to the home.'" Id. (quoting Moore, 702 F.3d at 936). Although "people may `keep Arms' (or, per Heller's definition, `have weapons,' 554 U.S. at 582, 128 S.Ct. 2783), in the home for defense of self, family, and property, they are more sensibly said to `bear Arms' (or, Heller's gloss: `carry [weapons] ... upon the person or in the clothing or in a pocket,' id. at 584, 128 S.Ct. 2783) in nondomestic settings." Id. (citing Kachalsky, 701 F.3d at 89 n. 10 ("The plain text of the Second Amendment does not limit the right to bear arms to the home."); Drake v. Filko, 724 F.3d 426, 444 (3d Cir. 2013) (Hardiman, J., dissenting) ("To speak of `bearing' arms solely within one's home not only would conflate `bearing' with `keeping,' in derogation of the Court's holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court.")) (footnote omitted).
In addition to the textual analysis of the phrase "bear Arms," the Court in Heller looked to the original public understanding of the Second Amendment right as evidence of its scope and meaning, relying on the "important founding-era legal scholars." Heller, 554 U.S. at 600-03, 128 S.Ct. 2783 (examining the public understanding of the Second Amendment in the period after its ratification because "[t]hat sort of inquiry is a critical tool of constitutional interpretation"). Based on its historical review, the Court found support for the proposition that the Second Amendment secures an individual right to carry in case of confrontation means nothing if not the general right to carry a common weapon outside the home for self-defense. Furthermore, as the court in Peruta correctly pointed out, "with Heller on the books, the Second Amendment's original meaning is now settled in at least two relevant respects." Peruta, 742 F.3d at 1155. "First, Heller clarifies that the keeping and bearing of arms is, and has always been, an individual right. Id. (citing [Heller], 554 U.S. at 616, 128 S.Ct. 2783). "Second, the right is, and has always been, oriented to the end of self-defense." Id. (citation omitted). After an exhaustive summary of the text and history of the Second Amendment, the Ninth Circuit in Peruta concluded 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." Peruta, 742 F.3d at 1166. As the Ninth Circuit noted, this conclusion is not surprising in light of the fact that other circuits
Finally, as the Peruta court pointed out, "[u]nderstanding the scope of the right is not just necessary, it is key to [the court's] analysis [because,] if self-defense outside the home is part of the core right to `bear arms' and the [District of Columbia's] regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-end scrutiny can justify [the District of Columbia's] policy." Id. at 1167 (citing Heller, 554 U.S. at 634, 128 S.Ct. 2783 ("The very enumeration of the right takes out of the hands of government even the Third Branch of Government the power to decide on a case-by-case basis whether the right is really worth insisting upon.")). Thus, having concluded that carrying a handgun outside the home for self-defense comes within the meaning of "bear[ing] Arms" under the Second Amendment, the Court must now ask whether the District of Columbia's total ban on the carrying of handguns within the District "infringes" that right.
This question is not difficult to answer. As the Seventh Circuit stated in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), "[a] blanket prohibition on carrying gun[s] in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof that it would." Id. at 940. This does not mean that the government cannot place some reasonable restrictions on carrying of handguns; for example, "when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that's a lesser burden, the state doesn't need to prove so strong a need." Id. The District of Columbia appears to be the only jurisdiction that still has such a complete ban on the carrying of ready-to-use handguns outside the home. That does not mean that other jurisdictions are indifferent to the dangers that the widespread public carrying of guns; rather, those jurisdictions "have decided that a proper balance between the interest in self-defense and the dangers created by carrying guns in public is to limit the right to carry a gun to responsible persons rather than to ban public carriage altogether[.]" Id. at 940. In addition, to "the usual prohibitions of gun ownership by children, felons, illegal aliens, lunatics, and in sensitive places such as public schools, the propriety of which was not questioned in Heller ... some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms." Id. at 940-41 (internal parenthetical omitted). Some states "also permit private businesses and other private institutions (such as churches) to ban guns from their premises." Id. at 941.
In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the
Plaintiff Raymond, the only non-resident individual Plaintiff, and SAF, insofar as some of its members who are not residents of the District of Columbia who would like to carry a hand gun in the District when they are there, argue that Defendants' practice of refusing to issue a permit to carry a gun in the District based solely on the fact that a person is not a resident violates their right to travel and the equal protection clause of the Fourteenth Amendment.
Having reviewed the parties' submissions and the applicable law, and for the above-stated reasons, the Court hereby
