D.C. Circuit Upholds Ban on Assault Rifles

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Kate Hooker | Bloomberg Law Heller v. District of Columbia, No. 10-7036, 2011 BL 256035 (D.C. Cir. Oct. 4, 2011) A panel of the U.S. Court of the Appeals for the District of Columbia Circuit ruled that certain portions of the District's gun control legislation did not violate theSecond Amendment rights of gun owners on October 4, 2011. Specifically, the Court upheld the laws requiring a basic firearms registration scheme for handguns, as well as an outright ban on semi-automatic rifles and magazines capable of holding more than ten rounds of ammunition. In 2008, the U.S. Supreme Court struck down D.C. legislation banning handgun possession in the home as a violation of the Second Amendment right of individuals to keep and bear arms. District of Columbia v. Heller, 554 U.S. 570 (2008). In response to the decision, the District passed the Firearms Regulation Amendment Act of 2008 (FRA), D.C. Law 17-372, in December 2008. Under the new statutory scheme, which imposes extensive gun registration requirements, every owner of a firearm is required to (1) disclose his or her name, address, and occupation, as well as certain information about each gun that he or she owns; (2) submit each gun for ballistics testing; (3) appear in person at the Metropolitan Police Department (MPD); (4) register no more than one gun in a given 30-day period; and (5) renew his or her registration every three years. In addition, gun owners will not be able to obtain the required registration unless they (1) meet the vision requirements necessary for a driver's license; (2) demonstrate knowledge of gun safety practices and the applicable laws pertaining to guns; (3) pass a background check every six years; and (4) attend a firearms safety course. The FRA also prohibits semi automatic rifles, or "assault weapons," as well as magazines that are capable of holding more than ten rounds of ammunition. A group of gun owners who had varying degrees of success complying with the FRA's registration requirements, filed a lawsuit in the U.S. District Court for the District of Columbia attempting to invalidate the law. The district court granted summary judgment in favor of the District, and plaintiffs filed a timely appeal.

Registration Requirements Remanded to District Court

Under The Act of June 30, 1906 (the 1906 Act), ch. 3932, 34 Stat. 808, 809, the Board of Commissioners of the District of Columbia was authorized to regulate firearms within the District, so long as the laws are "usual and reasonable police regulations." The District of Columbia Home Rule Act of 1973 (HRA), however, provides that "the legislative power of the District shall extend to all rightful subjects of legislation within the District consistent with the Constitution of the United States." District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774. According to plaintiffs, the District's authority to regulate firearms was still constrained by the 1906 Act, and the new gun laws were invalid because they were both unusual and unreasonable. The D.C. Circuit disagreed, holding that the HRA superseded the 1906 Act and, therefore, the District had the statutory authority to enact laws regulating firearms. Having established that the HRA authorized the District to regulate firearms, the Court turned to the question of whether the FRA was consistent with the Second Amendment, which 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." According to the Supreme Court's opinion in Heller, the Second Amendment "codified a pre-existing individual right to keep and bear arms, which was important to Americans not only to maintain the militia, but also for self-defense and hunting." (Internal quotation omitted.) The Supreme Court noted, however, that the right to bear arms is not unlimited and that "longstanding" regulations—such as the historical prohibition of "dangerous and unusual weapons"—are "presumptively lawful." Within this framework, the Court applied a two-step test to determine the constitutionality of D.C.'s gun laws, first asking whether the challenged provisions of the law impinged on plaintiffs' Second Amendment rights and then, if any did, deciding "whether the provision passes muster under the appropriate level of constitutional scrutiny." According to the Court, the "basic registration of handguns is deeply enough rooted in our history to support the presumption that a registration requirement is constitutional." The fact that handgun registration began over a century ago and is now applicable to more than one quarter of the population was enough to render it "longstanding," in the Court's view, and there was no evidence to rebut the presumption that it is lawful. The impact on the rights of plaintiffs of D.C.'s basic registration scheme was de minimus, as it mimicked other common registration processes, such as those for voting or obtaining a driver's license. The early registration requirements applied only to handguns, however, so the Court noted that insofar as the new registration rules applied to long guns, they were novel and not longstanding. The Court also found that the ballistics testing provision of D.C.'s new scheme, the one-pistol-per-30-days rule, and the requirements that the applicant appear in person and renew his registration every three years were novel requirements. In addition, some of the provisions that were targeted at licensing the gun owner as opposed to registering the gun, such as "the requirement that an applicant demonstrate knowledge about firearms, be fingerprinted and photographed, take a firearms training or safety course, meet a vision requirement, and submit to a background check every six years," were found to lack sufficient precedent to be considered presumptively lawful. (Internal citations omitted.) As the Court explained, the requirements that it found to be not "longstanding" were also not de minimus, as each would "make it considerably more difficult for a person lawfully to acquire and keep a firearm, including a handgun, for the purpose of self-defense in the home—the 'core lawful purpose' protected by the Second Amendment." Thus, having determined that the novel requirements impinged on plaintiffs' Second Amendment rights, the Court next considered their constitutionality, which necessitated deciding the appropriate level of scrutiny to apply. Although plaintiffs argued that the registration requirements should be subject to strict scrutiny, which would mean that the District would have to show that the laws "further[] a compelling interest and [are] narrowly tailored to achieve that interest," the Court disagreed, holding that gun registration laws that "do not severely limit the possession of firearms" are more appropriately reviewed under intermediate scrutiny. (Internal alteration omitted.) None of the District's registration requirements, the Court explained, "prevent[] an individual from possessing a firearm in his home or elsewhere, whether for self-defense or hunting, or any other lawful purpose." In order to pass intermediate scrutiny, a law that impinges on constitutional rights must be "substantially related to an important governmental objective." In this case, the Court found that the District had identified two important governmental interests that were potentially served by the gun registration laws: the protection of police officers and crime control. On the basis of the record before it, however, the Court determined that the District failed to demonstrate a "close fit" between achieving those policy goals and the legislation at issue. For example, the District explained that similar laws had been designed to reduce the number of illegal guns, but failed to identify those laws or show that they were successful. Accordingly, the Court ruled that the District needed to "present some meaningful evidence, not mere assertions, to justify its predictive judgments." Nonetheless, the Court noted, plaintiffs fared no better at producing contrary evidence rebutting the District's assertions. Moreover, both parties ignored the significant distinction between handguns and long guns (e.g., rifles and shotguns) in their briefs, and there was no reference to the registration of long guns in any of the legislative history presented. The Court thus remanded the question of the constitutionality of the registration requirements it had deemed to be novel, including all registration requirements for long guns, to the district court in order to give the parties the opportunity to thoroughly develop the factual record.

Ban on Semi-Automatic Rifles and Large-Capacity Magazines Upheld

Next, the Court concluded that there were no longstanding prohibitions on semi-automatic rifles or large-capacity ammunition magazines that would render the District's laws banning those weapons presumptively valid. Therefore, it was necessary to ask whether the laws were constitutional. The Supreme Court noted in Heller that the right to bear arms is limited by "the historical tradition of prohibiting the carrying of dangerous and unusual weapons," and the District presented evidence that semi-automatic weapons and magazines holding more than ten rounds of ammunition fell into that category. According to reports put forth by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and other groups, assault weapons "are 'military-style' weapons designed for offensive use," and large-capacity magazines "are disproportionately involved in the murder of law enforcement officers and in mass shootings, and have little value for self-defense." Based on the record, the Court held that it could not determine whether barring such weapons impinged on plaintiffs' Second Amendment rights, but that it need not resolve that question because the prohibitions survived intermediate scrutiny. According to the Court, the District's prohibitions on semi-automatic guns and large-capacity magazines did not severely impact Second Amendment rights because they did not affect the possession of "the quintessential self-defense weapon, to wit, the handgun" or "suitable and commonly used" weapons for home protection and hunting. (Internal quotation omitted.) Although it was unclear on the record whether the prohibitions impinged on the "core right" guaranteed by the Second Amendment, the Court concluded that it was "reasonably certain the prohibitions [did] not impose a substantial burden upon that right." Therefore, intermediate scrutiny was a more appropriate standard of review than strict scrutiny. Based on an ATF report that characterized assault weapons as agents of "mass produced mayhem" that are preferred by criminals and place police at higher risk, the Court determined that there was a "close fit" between banning the weapons and "the Government's interest in crime control in the densely populated urban area that is the District of Columbia." Similarly, the Court was persuaded that prohibiting large-capacity magazines would likely advance the District's interests in light of evidence that such magazines are uniquely dangerous. Accordingly, the Court held that the District showed a substantial relationship between the laws banning semi-automatic rifles and magazines holding more than ten rounds and the dual goals of protecting police officers and controlling crime, which meant that plaintiffs' Second Amendment rights were not violated by the legislation.


In a lengthy dissent, Judge Brett M. Kavanaugh argued that both the District's ban on semi-automatic weapons and its gun registration requirements were unconstitutional under Heller. The District's law banning semi-automatic rifles but not semi-automatic handguns was nonsensical, Kavanaugh contended, in light of the fact that both are in common use for self-defense and hunting and "semiautomatic [sic] handguns are used in connection with violent crimes far more than semi-automatic rifles are." In addition, according to Kavanaugh, D.C.'s registration requirement for all lawfully owned guns was "highly unusual," unprecedented, and unconstitutional. Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy. ©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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