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Wrenn v. District of Columbia

United States Court of Appeals, District of Columbia Circuit

July 25, 2017

Brian Wrenn, et al., Appellants
v.
District of Columbia, et al., Appellees Matthew Grace and Pink Pistols, Appellees
v.
District of Columbia and Peter Newsham, in his official capacity as Chief of Police for the Metropolitan Police Department, Appellants

          Argued September 20, 2016

         Appeal from the United States District Court for the District of Columbia (Nos. 1:15-cv-00162, 1:15-cv-02234)

          Alan Gura argued the cause and filed the briefs for appellants.

          Herbert W. Titus, Robert J. Olson, William J. Olson, Jeremiah L. Morgan, and John S. Miles were on the brief for amici curiae Gun Owners of America, Inc., et al. in support of appellants.

          Holly M. Johnson, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General. Richard S. Love, Assistant Attorney General, entered an appearance.

          Adam K. Levin and Jonathan E. Lowy were on the brief for amicus curiae The Brady Center to Prevent Gun Violence in support of appellees District of Columbia and Cathy L. Lanier.

          Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Joshua N. Auerbach, Assistant Attorney General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Douglas S. Chin, Attorney General, Office of the Attorney General for the State of Hawaii, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, and Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, were on the brief for amici curiae States of Maryland, California, Connecticut, Hawaii, Illinois, Iowa, Massachusetts, New York, Oregon, and Washington in support of appellees.

          Paul R.Q. Wolfson and Walter A. Smith, Jr. were on the brief for amici curiae DC Appleseed Center for Law & Justice, et al. in support of defendants-appellees.

          Deepak Gupta was on the brief for amicus curiae Everytown For Gun Safety in support of appellees.

          Loren L. AliKhan, Deputy Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellants. With her on the briefs were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Holly M. Johnson, Assistant Attorney General.

          Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Joshua N. Auerbach, Assistant Attorney General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Douglas S. Chin, Attorney General, Office of the Attorney General for the State of Hawaii, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, and Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, were on the brief for Maryland, California, Connecticut, Hawaii, Illinois, Iowa, Massachusetts, New York, Oregon, and Washington in support of appellants.

          Paul R.Q. Wolfson and Walter A. Smith, Jr. were on the brief for amici curiae DC Appleseed Center for Law & Justice, et al. in support of defendants-appellants.

          Deepak Gupta was on the brief for amicus curiae Everytown for Gun Safety in support of defendants-appellants.

          Adam K. Levin and Jonathan Lowy were on the brief for amicus curiae Brady Center to Prevent Gun Violence in support of appellants District of Columbia and Cathy L. Lanier.

          David H. Thompson argued the cause for appellees. With him on the brief was Charles J. Cooper, Howard C. Nielson, Jr., Peter A. Patterson, and John D. Ohlendorf.

          Mark Brnovich, Attorney General, Office of the Attorney General for the State of Arizona, John R. Lopez, IV, Solicitor General, Keith Miller, Assistant Solicitor General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, Marty J. Jackley, Attorney General, Office of the Attorney General for the State of South Dakota, Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, Brad D. Schimel, Attorney General, Office of the Attorney General for the State of Wisconsin, Peter K. Michael, Attorney General, Office of the Attorney General for the State of Wyoming, Luther Strange, Attorney General, Office of the Attorney General for the State of Alabama, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Gregory F. Zoeller, Attorney General, Office of the Attorney General for the State of Indiana, Chris Koster, Attorney General, Office of the Attorney General for the State of Missouri, Timothy C. Fox, Attorney General, Office of the Attorney General for the State of Montana, Adam Paul Laxalt, Attorney General, Office of the Attorney General for the State of Nevada, Michael DeWine, Attorney General, Office of the Attorney General for the State of Ohio, and E. Scott Pruitt, Attorney General, Office of the Attorney General for the State of Oklahoma were on the brief for Arizona, Alabama, Arkansas, Indiana, Missouri, Montana, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming in support of plaintiffs-appellees.

          Dan M. Peterson and C.D. Michel were on the brief for amici curiae Western States Sheriffs' Association, et al. in support of plaintiffs-appellees.

          Paul D. Clement, Erin E. Murphy, and Christopher G. Michel were on the brief for amicus curiae National Rifle Association of America, Inc. in support of plaintiffs-appellees.

          Herbert W. Titus, Robert J. Olson, William J. Olson, Jeremiah L. Morgan, and John S. Miles were on the brief for amicus curiae Gun Owners of America, Inc., et al. in support of plaintiffs-appellees.

          Before: Henderson and Griffith, Circuit Judges, and Williams, Senior Circuit Judge.

          OPINION

          GRIFFITH, CIRCUIT JUDGE

         Constitutional challenges to gun laws create peculiar puzzles for courts. In other areas, after all, a law's validity might turn on the value of its goals and the efficiency of its means. But gun laws almost always aim at the most compelling goal-saving lives-while evidence of their effects is almost always deeply contested. On top of that, the Supreme Court has offered little guidance. Its "first in-depth examination of the Second Amendment" is younger than the first iPhone. District of Columbia v. Heller (Heller I), 554 U.S. 570, 634 (2008). And by its own admission, that first treatment manages to be mute on how to review gun laws in a range of other cases. See id. at 634. But listening closely to Heller I reveals this much at least: the Second Amendment erects some absolute barriers that no gun law may breach. This lesson will prove crucial as we consider the challenges presented in these cases to the District of Columbia's limits on carrying guns in public.

         I

         These cases involve the District's third major attempt in forty years at managing what the D.C. Council sees as the tension between public safety and the Second Amendment. In 1976, the District banned all handgun possession. D.C. Code §§ 7-2502.01(a), 7-2502.02(a)(4) (2001). When that ban was struck down in Heller I, the Council followed it with a ban on carrying. Id. § 22-4504 (2009). And when that was struck down in Palmer v. District of Columbia, 59 F.Supp.3d 173 (D.D.C. 2014), the Council responded with the law challenged here, which confines carrying a handgun in public to those with a special need for self-defense.

         The challenged D.C. Code provisions direct the District's police chief to promulgate regulations limiting licenses for the concealed carry of handguns (the only sort of carrying the Code allows) to those showing a "good reason to fear injury to [their] person or property" or "any other proper reason for carrying a pistol." Id. § 22-4506(a)-(b).[1] The Code also limits what the police chief may count as satisfying these two criteria, in the course of promulgating regulations and issuing licenses.

         To receive a license based on the first prong-a "good reason to fear injury"-applicants must show a "special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant's life." Id. § 7-2509.11(1)(A). The police chief's regulations further limit licenses granted on this basis to those who "allege, in writing, serious threats of death or serious bodily harm, any attacks on [their] person, or any theft of property from [their] person." D.C. Mun. Regs. tit. 24 § 2333.2-3.

         For those seeking to establish some "other proper reason for carrying, " the D.C. Code provides that an applicant's need to carry around cash or valuables as part of her job is sufficient. D.C. Code § 7-2509.11(1)(B). Two regulations implementing this criterion also specify that living or working "in a high crime area shall not by itself establish a good reason" to carry, D.C. Mun. Regs. tit. 24 § 2333.4 (emphasis added), but that having a close relative who is unable to meet his own special need for self-defense does. Id. § 2334.1.

         We will refer to this ensemble of Code provisions and police regulations simply as the "good-reason" law or regulation. The D.C. Council thought this scheme justified in light of studies suggesting that expansive right-to-carry laws are associated with higher rates of crime and injury to innocents. The Council also cited the District's status as an urban area teeming with officials, diplomats, and major landmarks.

         Before us are conflicting rulings in two cases before different district judges. Both cases involve plaintiffs denied a concealed-carry license solely for failing to show a special need for self-defense. Bringing the first case are Brian Wrenn, the Second Amendment Foundation, Inc., and two of its other members. The second case features Matthew Grace and the Pink Pistols, an organization in which Grace and other members champion the right of sexual minorities to carry guns for self-defense.

         In each case, the plaintiffs sought a preliminary injunction barring the District from enforcing the good-reason regulation. In March 2016, a district judge denied the Wrenn plaintiffs' motion. Two months later, another district judge granted the Grace plaintiffs a preliminary injunction barring the District from enforcing the good-reason law against anyone. We combine the two appeals, over which we have jurisdiction under 28 U.S.C. § 1292(a)(1), and must consider all legal issues de novo, see Abdullah v. Obama, 753 F.3d 193, 197-98 (D.C. Cir. 2014).

         II

         We begin by asking if Grace and Wrenn have met their burden to show their Second Amendment challenges are likely to prevail. That question has several components in this case. In many areas of constitutional law, regulations that impose on rights are subject to one of three tests that are more or less stringent depending on the right and the burden at stake. So-called rational-basis review requires the challenged law to bear a rational link to a legitimate public interest. Intermediate scrutiny looks for a substantial link to an important interest. And strict scrutiny demands that a law be narrowly tailored to a compelling public interest. See generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 U.C.L.A. L. Rev. 1267 (2007).

         Whether we need that three-tiered framework here is one issue we will address. Grace and Wrenn hope we can consider their challenge without bothering to decide which level of scrutiny to apply to the District's regulation. In fact, the District shares that hope. For their part, Grace and Wrenn argue that we should deem the good-reason regulation invalid without applying tiers of scrutiny because this regulation is analogous to the "total ban" that the Supreme Court struck down in Heller I without pausing to weigh its benefits. The District, by contrast, thinks the law warrants no particular scrutiny because it does not burden protected rights at all.

         The parties split on what we should do if we ultimately decide to apply tiers of scrutiny. Under our precedent, if we apply tiers of scrutiny at all, the proper level to apply would turn on whether a gun law imposes "substantial[ly]" on the Second Amendment's "core." Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1257 (D.C. Cir. 2011); see also id. at 1253, 1256-57. The plaintiffs say the good-reason law does so, thus inviting strict scrutiny. The District would have us apply ...


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