Wrenn

USCA Case #16-7025 Document #1690130 Filed: 08/24/2017 Page 1 of 61
DECIDED ON JULY 25, 2017
No. 16-7025
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIAN WRENN, et al.,

APPELLANTS,
V.
DISTRICT OF COLUMBIA, et al.,

APPELLEES.
ON APPEAL FROM AN ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
PETITION OF THE DISTRICT OF COLUMBIA AND

METROPOLITAN POLICE DEPARTMENT CHIEF PETER NEWSHAM
FOR REHEARING EN BANC
KARL A. RACINE
Attorney General for the District of Columbia
TODD S. KIM
Solicitor General
LOREN L. ALIKHAN
Deputy Solicitor General
HOLLY M. JOHNSON
Assistant Attorney General
Office of the Solicitor General
Office of the Attorney General
441 4th Street, NW, Suite 600S
Washington, D.C. 20001
(202) 442-9890
[email protected]
INTRODUCTION AND RULE 35(b) STATEMENT

The District of Columbia and Metropolitan Police Chief Peter Newsham
seek rehearing en banc of a panel decision holding that the Second Amendment
forbids the District from allowing public carry of handguns only upon a showing of
good reason to fear injury or any other proper reason for carrying, as described
under District law. D.C. Code 22-4506(a). En banc rehearing is warranted under
Federal Rule of Appellate Procedure 35(b) both because the proceeding involves a
question of exceptional importance and because rehearing is needed to resolve
conflict with binding precedent.
The District of Columbia is unique. Unlike any state, it is entirely urban and
densely populated. Unlike any city, it is filled with thousands of high-ranking
federal officials and international diplomats, and it hosts hundreds of heavily
attended events each year, including political marches and protests. The Supreme
Court has recognized that the Second Amendment preserves, even if it limits, a
local jurisdictions ability to craft firearm regulations to suit its local needs and
values. The Council of the District of Columbia has done just that in a carefully
considered public-carrying law that addresses the Districts particular public-safety
challenges while preserving the ability of its most vulnerable citizens to publicly
carry a handgun when there is a special self-defense need. The panel majority,
however, held that the Constitution requires every jurisdiction in the nation
regardless of local needs and values or the public-safety consequencesto allow
anyone who meets threshold requirements to carry a handgun in populated public
places, and that the circuits that have unanimously concluded otherwise were
wrong.
Review by the full Court is necessary due to the importance of this question,
which affects the safety of every person who lives in, works in, or visits the
District. Through their elected representatives, District residents have decided that
public carrying without good reason is inconsistent with public safety. The
Councils decision was based on empirical studies, expert testimony, and the
reasoned analysis of other state legislatures and federal courts that have upheld
those legislative judgments. This Courts precedent mandates deference to these
findings, which indicate that, if left intact, the panel decision will increase crime
and cost lives.
While the importance of the question here would justify en banc review even
if the panel majority were correct, it is not. The majority misinterprets the
Supreme Courts decision in District of Columbia v. Heller, 554 U.S. 570 (2008)
(Heller I), which holds that, because the Second Amendment codified a pre-
existing right, the scope of the right it protects can only be determined by
examining the right as it existed at the time of the amendments ratification. The
majority declined to conduct this historical analysis as it applied to public carry,
2
incorrectly treating the relevant history as settled by Heller I, even though that
decision was limited to the historical contours of home possession. What is more,
in misinterpreting Heller I, the majority departed from this Courts well-
established two-step framework for assessing Second Amendment challenges to
firearm regulations. This Court first asks whether the regulation burdens conduct
within the scope of the Amendment, which requires the context-specific historical
analysis the panel majority did not conduct. If the regulation does burden
protected conduct, the Court then proceeds to consider the regulation under the
relevant level of scrutiny. Had the panel properly followed this Courts
precedents, it would have upheld the good reason law, or at minimum refrained
from ordering final judgment for plaintiffs on appeal from a preliminary-injunction
ruling. En banc review is warranted.
NATURE OF THE CASE

After a district judge invalidated the Districts longstanding prohibition on
public carrying in Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C.
2014), the Council enacted legislation to authorize the issuance of public-carry
licenses if, among other things, 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.
D.C. Code 22-4506(a). To show good reason, an applicant must show[] a
special need for self-protection distinguishable from the general community as
3
supported by evidence of specific threats or previous attacks that demonstrate a
special danger to the applicants life. D.C. Code 7-2509.11(1)(A). [O]ther
proper reason shall at a minimum include types of employment that require the
handling of cash or other valuable objects that may be transported upon the
applicants person. D.C. Code 7-2509.11(1)(B).
The identical rehearing petitions filed today arise out of two separate
lawsuits challenging this good reason standard. Plaintiffs in both cases moved to
preliminarily enjoin enforcement of the law. In Wrenn v. District of Columbia,
167 F. Supp. 3d 86 (D.D.C. 2016), Judge Kollar-Kotelly denied the motion,
finding that the plaintiffs were unlikely to prevail on the merits because, even
assuming the law implicates a Second Amendment right, it should be assessed
underand would likely surviveintermediate scrutiny. Id. at 94-95. In Grace v.
District of Columbia, 187 F. Supp. 3d 124 (D.D.C. 2016), Judge Leon granted a
preliminary injunction, finding a substantial[] burden[] on the Second
Amendments core right of self-defense meriting strict scrutiny. Id. at 143-47.
On July 25, 2017, in a split decision addressing both orders, a panel of this
Court found the good reason standard categorically unconstitutional. Opinion
(Op.) 27-28. In the majority, Judges Griffith and Williams declined to conduct a
historical analysis to determine the existence and scope of a Second Amendment
right to publicly carry a handgun, finding that Heller I had already held that such a
4
right exists and is on equal footing with home possession. Op. 15, 17, 22.
Concluding that the good reason standard effectively destroy[ed] this right, the
majority found the law categorically unconstitutional and ordered the district court
to permanently enjoin its enforcement. Op. 27; see also Op. 28, 31. Judge
Henderson dissented.
DISCUSSION
I. This Appeal Involves A Question Of Exceptional Importance Given The

Evidence That Laws Like This One Reduce Crime And Save Lives.
The primary concern of every government is the safety and indeed the
lives of its citizens. United States v. Salerno, 481 U.S. 739, 755 (1987). The
Council has determined that the good reason standard is critically important to
the public safety of those who live in, work in, and visit the District. As three
other circuits have recognized, it is the essential component of a scheme crafted to
balance public safety with the needs of individuals particularly at risk. Kachalsky
v. Cty. of Westchester, 701 F.3d 81, 97 n.22 (2d Cir. 2012), cert. denied, 133 S. Ct.
1806 (2013); Drake v. Filko, 724 F.3d 426, 438 (3d Cir. 2013), cert. denied, 134 S.
Ct. 2134 (2014); Woollard v. Gallagher, 712 F.3d 865, 880-81 (4th Cir. 2013),
cert. denied, 134 S. Ct. 422 (2012). Without this standard, the District becomes a
right-to-carry regime despite the Councils legislative judgment, based on
empirical studies, that such regimes are associated with substantially higher rates
of aggravated assault, rape, robbery and murder. Grace Joint Appendix (GJA)
5
135; Wrenn Joint Appendix (WJA) 66. A decision striking this critically
important public safety law should therefore be reviewed and decided by the entire
Court, sitting en banc, rather than by a two-judge panel majorityespecially
because this Court may well have the last word on the question, given the Supreme
Courts previous denials of certiorari in similar cases.
The risk inherent in firearms distinguishes the Second Amendment right
from other fundamental rights , which can be exercised without creating a direct
risk to others. Bonidy v. USPS, 790 F.3d 1121, 1126 (10th Cir. 2015). The
increased risk from a handgun in the home is largely borne by those who live in or
visit that home. Not so for public carrying, with its higher potential for carnage.
District residents, through the well-researched findings of their elected
representatives, have determined that public carrying without good reason
reduces public safety. That judgment is entitled to deference. Schrader v. Holder,
704 F.3d 980, 990 (D.C. Cir. 2013) (finding the legislature far better equipped
than the judiciary to make sensitive public policy judgments concerning the
dangers in carrying firearms and the manner to combat those risks).
The Council primarily relied on a 2014 Stanford University study led by
John Donohue III, an eminent economist, legal scholar, and empirical researcher,
who explained that [t]he totality of the evidence based on educated judgments
about the best statistical models suggests that right-to-carry laws are associated
6
with substantially higher rates of aggravated assault, rape, robbery and murder.
GJA135, WJA66 (Committee Report); see GJA251-358, WJA182-289 (Donohue,
The Impact of Right to Carry Laws and the NRC Report (2014)). The study
followed a decade of research and statistical analysistime spent developing
increasingly advanced models and gathering more reliable and updated crime data.
GJA271-325; WJA202-56. For each of the seven studied crime categories, at least
one of the most-favored models demonstrated a substantial increase in crime after
right-to-carry laws were enacted, and one model suggest[ed] that [right-to-carry]
laws increased every crime category [except murder] by at least 8 percent.
GJA330-32; WJA261-63.
The Council also relied on the predictive judgments of the legislatures of
New York, New Jersey, and Maryland, all of which have found the good reason
standard necessary to prevent crime (and had those findings upheld on appeal).
See GJA120, 127 & n.39; WJA51, 58 & n.39. This evidence applies with even
greater force in the District, which, unlike any state, is completely contained in a
dense urban setting, with correspondingly higher rates of violent crime than
suburbs and rural areas. GJA122, 125; WJA53, 56. And as the seat of the
federal government, with its multitude of critical official and symbolic buildings,
monuments, and events, and high-profile public officials, the District is filled
with sensitive places from a public safety perspective. GJA123; WJA54. As a
7
result, the likelihood of attack is higher than in any other city, and the
challenges are greater. GJA124; WJA55. Furthermore, a significant increase
in public carrying would force federal law enforcement to step up protection of
thousands of high-risk targets, which could interfere with daily life and the
exercise of other rights through, for instance, political protest in public spaces.
GJA125; WJA56.
Indeed, [a]n impressive body of empirical evidence now shows that state
laws making it easier to carry concealed weapons in public have had the net
effect of making those states more dangerous. Henigan, The Woollard Decision
and The Lessons of the Trayvon Martin Tragedy, 71 Md. L. Rev. 1188, 1201
(2012). In addition to the Donohue study, the District provided the panel with
studies showing that, rather than reduce crime, shall-issue laws have resulted, if
anything, in an increase in adult homicide rates, GJA359, WJA290 (Ludwig,
Concealed-Gun-Carrying Laws and Violent Crime: Evidence from State Panel
Data, 18 Intl L. Rev. L. & Econ. 239, 241 (1998)); and that [f]or robbery, many
states experience increases in crime after enacting right-to-carry laws, GJA380,
WJA311 (Dezhbakhsh & Rubin, Lives Saved or Lives Lost? The Effects of
Concealed-Handgun Laws on Crime, 88 Am. Econ. Rev. 468, 473 (1998)).
Moreover, Donohue has an updated and expanded study that uses crime data
through 2014, considers an additional 11 right-to-carry regimes, and employs new
8
statistical techniques to see if more convincing and robust conclusions can
emerge. Donohue, Right-to-Carry Laws and Violent Crime: A Comprehensive
Assessment Using Panel Data and a State-Level Synthetic Controls Analysis (June
2017), Abstract, available at http://www.nber.org/papers/w23510. Under each of
these new statistical models, right-to-carry laws are associated with higher
aggregate violent crime rates which climb[] over time, such that [t]en years
after the adoption of [right-to-carry] laws, violent crime is estimated to be 13-15%
percent higher than it would have been without [these] law[s]. Id.
These risks cannot be neutralized with rigorous screening of applicants,
because many of the risks of public carrying have nothing to do with the conduct
of law-abiding carriers. A 2009 study of Philadelphia residents found that those
who possessed a gun during an assault were 4.46 times more likely to be shot.
GJA398, WJA329 (Branas et al., Investigating the Link Between Gun Possession
and Gun Assault, 99 Amer. J. Pub. Health 2034, 2034 (2009)). Handguns often are
stolen and used against the carrier or to commit other crimesindeed, criminals
often target victims precisely because they possess handguns. Woollard, 712
F.3d at 879 (quoting a former Baltimore Police Commissioner); see Ayres &
Donohue, Shooting Down the More Guns, Less Crime Hypothesis, 55 Stan. L.
Rev. 1193, 1205 ([S]ome estimates suggest[] that as many as one million or more
guns are stolen each year.); Heller v. District of Columbia, 801 F.3d 264, 277
9
(D.C. Cir. 2015) (Heller III) (finding a requirement that firearm registrants bring
their weapons to the police station more likely to threat[en] public safety
due to a risk that the gun may be stolen en route). And an upswing in public
carrying may well encourage criminals to shift toward greater lethality.
GJA390, WJA321 (Cook & Ludwig, The Social Costs of Gun Ownership, 90 J.
Pub. Econ. 379 (2006)). Two-thirds of prisoners incarcerated for gun offenses
reported that the chance of running into an armed victim was very or somewhat
important in their own choice to use a gun. Cook, Gun Control After Heller, 56
UCLA L. Rev. 1041, 1081 (2009).
Public carrying also complicates the relationship between police officers and
the law-abiding public. As the Dallas Police Chief put it after his officers
struggled to identify a shooter targeting officers during a July 2016 protest, public
carrying makes it hard to know who the good guy is versus the bad guy.
Hennessy-Fiske, Dallas police chief: Open carry makes things confusing during
mass shootings, L.A. Times, July 11, 2016. And so, [i]f the number of legal
handguns on the streets increased significantly, [police] officers would have no
choice but to take extra precautions before engaging citizens, effectively treating
encounters that now are routine, friendly, and trusting, as high-risk stops.
Woollard, 712 F.3d at 880.
10
Indeed, licensed carriers with previously clean records do sometimes misuse
their weapons. Between May 2007 and June 2016, concealed-carry permit
holders ha[d] shot and killed at least 17 law enforcement officers and more than
800 private citizens, Peruta v. Cty. of San Diego, 824 F.3d 919, 943 (9th Cir.
2016) (en banc) (Graber, J., concurring), including 31 mass shootings such as the
2013 attack at the Districts Navy Yard and the June 2016 attack at an Orlando
nightclub, Concealed Carry Killers, Violence Policy Center, available at www.
concealedcarrykillers.org. By June 2017, the number of deaths had increased to
1,082. Id.
In her well-reasoned dissent, Judge Henderson underscored the exceptional
importance of this question:
At bottom, firearms regulation is serious business. We do not wish

to be even minutely responsible for some unspeakably tragic act of
mayhem because in the peace of our judicial chambers we
miscalculated as to Second Amendment rights . If ever there was
an occasion for restraint, this would seem to be it.
Dissent 7 (quoting United States v. Masciandaro, 638 F.3d 2011, 475-76 (4th Cir.
2011)). The panel majority did not disagree about the importance of the issue;
indeed, it bemoaned the scourge of handgun violence. Op. 31. Whether the
Second Amendment prevents the District from adopting a law that its legislature
reasonably believes is needed to address this scourge is a question meriting the full
Courts consideration.
11
II. The Majority Departed From Binding Precedent By Declining To

Engage In The Required Historical Analysis.
The need for rehearing is heightened by the fact that the panel majoritys
decision was incorrect. In particular, en banc consideration also is necessary to
correct the majoritys departure from the Supreme Courts decision in Heller I and
this Courts decisions in, inter alia, Heller v. District of Columbia, 670 F.3d 1244
(D.C. Cir. 2011) (Heller II), and Heller III, 801 F.3d 264.
In Heller I, the Supreme Court held that, because the Second Amendment
codified a pre-existing right, courts must look to Framing-era law to determine
the scope of the conduct it protects. 554 U.S. at 592; see id. at 579-619.
Consistent with Hellers mandate, this Court has adopted a two-step approach in
assessing Second Amendment challenges to firearm regulations. See, e.g., Heller
II, 670 F.3d at 1252-53; Heller III, 801 F.3d at 272. Initially, the Court looks to
the historical scope of the right codified in the Second Amendment to determine
whether a particular provision impinges upon a right it protects. Heller II, 670
F.3d at 1253; see id. at 1253-55. If the challenged regulation does implicate
conduct within the scope of the Second Amendment, the Court goes on to
determine whether the provision passes muster under the appropriate level of
constitutional scrutiny. Id. at 1253.
Rather than follow this well-worn path, the panel majority failed to conduct
its own historical analysis at the first step, instead drawing assumptions from
12
Heller Is historical analysis. Op. 14-17. And then the panel majority did not even
proceed to the second step of the Second Amendment inquiry, mistakenly finding
the Districts law categorically unconstitutional. Op. 25-29. These missteps
departed from established precedent and warrant en banc review.
The panel majority erroneously found that Heller I holds that by the time of
the Founding, the preexisting right enshrined by the Amendment had ripened to
include carrying more broadly than the District contends. Op. 15. But Heller I
does not hold that the Second Amendment protects carrying without good reason
on crowded city streets, and therefore this Court thus must conduct its own
historical analysis. Indeed, as Judge Posner acknowledged in Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012), the Supreme Court has not even addressed the
question whether the Second Amendment creates a right of self-defense outside the
home. Id. at 935. None of the seven circuits to consider the scope of public
carrying has found Heller I to do more than imply that a right to carry exists
somewhere outside the home. See Kachalsky, 701 F.3d at 88-89; Drake, 724 F.3d
at 430; Masciandaro, 638 F.3d at 467; Moore, 702 F.3d at 935; Peruta, 824 F.3d at
927; Bonidy, 790 F.3d at 1124-25; GeorgiaCarry.Org v. U.S. Army Corps of
Engrs, 788 F.3d 1318, 1323 (11th Cir. 2015). Not even the vacated Ninth Circuit
panel decision on which the majority relies, Op. 12, 13, 23, thought Heller I
addressed the question:
13
It doesnt take a lawyer to see that straightforward application of the

rule in Heller will not dispose of this case. It should be equally
obvious that neither Heller nor McDonald [v. City of Chicago, 561
U.S. 742 (2010),] speaks explicitly or precisely to the scope of the
Second Amendment right outside the home or to what it takes to
infringe it.
Peruta v. Cty. of San Diego, 742 F.3d 1144, 1150 (9th Cir. 2014), vacated, 781
F.3d 1155, 1156-63 (9th Cir. 2015) (en banc).
Heller I engaged in its historical inquiry to answer just two questions:
whether the Second Amendment codified an individual right unrelated to militia
service and, if so, whether a core right included possession of handguns in the
home. 554 U.S. at 579-619. And the decision itself warns readers not to treat [it]
as containing broader holdings than the Court set out to establish: that the Second
Amendment created individual rights, one of which is keeping operable handguns
at home for self-defense. United States v. Skoien, 614 F.3d 638, 640 (7th Cir.
2010) (en banc). To wit, it recognized that the right secured by the Second
Amendment is not unlimited and listed examples of presumptively lawful
regulatory measures, but expressly declined to clarify the entire field. Heller I,
554 U.S. at 626-27 & n.26. The Court wanted subsequent lower courts to analyze
serious issues like the scope of any right to public carry, not to consider those
issues decided already sub silentio.
The majoritys reliance on Heller Is inapplicable historical analysis thus
caused it to make flawed assumptions and ahistorical conclusions. For example,

14
its conclusion that the Second Amendment preserves a core right to carry on
crowded urban streets rests entirely on its assumption that protection of
keep[ing] and bear[ing] are of equal importance, and must be kept on equal
footing and on par with each other. Op. 11, 22, 23, 24, 28. It based this
assumption on the seemingly equal treatments to the right to keep and to bear
in Heller Is historical analysis. Op. 11. But Heller I had no reason to consider the
relative scope of each part of the Second Amendment rightit analyzed the
historical meaning of each part only as necessary to determine that they are
individually held.
And the overwhelming historical evidence demonstrates that public carrying
has never been on equal legal footing with home possession. The District and
amici presented a rich history of the law regulating public carrying, demonstrating
that residents of cities, through their elected officials, have always had authority to
restrict public carrying to promote public safety. Not only was this evidence
irrelevant to the issues raised in Heller I, much of the underlying research was
conducted after (and as a result of) its issuance. Moreover, Heller I itself
contradicts the majoritys assumption, going to great lengths to emphasize the
special place that the homean individuals private propertyoccupies in our
society. GeorgiaCarry.Org v. Georgia, 687 F.3d 1244, 1259 (11th Cir. 2012);
see Heller I, 554 U.S. at 635 ([W]hatever else [the Second Amendment] leaves to
15
future evaluation, it surely elevates above all other interests the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.).
The panel majoritys exclusive reliance on Heller Is historical analysis also
led to its rejection of historical evidence far more probative to the scope of public
carrying. This led the majority to disregard Framing-era laws governing more than
half of the original States and the District that facially barred public carrying in
populated areas, and to reject four centuries of historical documents and treatises
shedding light on the development and interpretation of those laws. Op. 15-17; see
Statutory Addendum 34-76. The majority instead relied on a handful of
Antebellum Southern cases cited in Heller Is individual-right analysis. Op. 12-13.
These cases were not even central to Heller Is conclusions, and are even less
relevant here. See Ruben & Cornell, Firearm Regionalism and Public Carry, 125
Yale L.J. F. 121, 125, 128 (2015). Moreover, unlike the Framing-era laws cited by
the District, these cases did not address the specific regulation challenged here,
which applies only in this densely populated urban jurisdiction. SA 34-76; see
also Blocher, Firearm Localism, 123 Yale L.J. 82, 120 (2013) (Urban gun control
was a nationwide phenomenon, reaching from the harbors of Boston to the
dusty streets of Tombstone.).
Even if Heller Is historical analysis did imply something about the scope of
public carry in general, it did not hold anything about whether the pre-existing
16
right codified in the Second Amendment included a right to publicly carry firearms
on crowded city streets in the nations capital with no particularized self-defense
reasonlet alone do so clearly enough to warrant the entry of judgment on appeal
from a preliminary-injunction ruling. This Court should grant en banc review to
correct the error and consider the Districts law using the appropriate analysis
dictated by Heller I, II, and III.
CONCLUSION
The Court should rehear this appeal en banc.
Respectfully submitted,
KARL A. RACINE
Attorney General for the District of Columbia
TODD S. KIM
Solicitor General
LOREN L. ALIKHAN
Deputy Solicitor General
/s/ Holly M. Johnson

HOLLY M. JOHNSON
Assistant Attorney General
Bar Number 476331
Office of the Solicitor General
Office of the Attorney General

441 4th Street, NW, Suite 600S
Washington, D.C. 20001
(202) 442-9890
(202) 715-7713 (fax)
August 2017 [email protected]
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ADDENDUM
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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2016 Decided July 25, 2017
No. 16-7025
BRIAN WRENN, ET AL.,

APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,

APPELLEES
Appeal from the United States District Court

for the District of Columbia
(No. 1:15-cv-00162)
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
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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.
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No. 16-7067
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
Appeal from the United States District Court

for the District of Columbia
(No. 1:15-cv-02234)
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
Washington, Kamala D. Harris, Attorney General, Office of
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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,
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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
Missouri, Timothy C. Fox, Attorney General, Office of the
Attorney General for the State of Montana, Adam Paul Laxalt,
of Nevada, Michael DeWine, Attorney General, Office of the
Attorney General for the State of Ohio, and E. Scott Pruitt,
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.
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Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge HENDERSON.
Before: HENDERSON and GRIFFITH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.
GRIFFITH, Circuit Judge: Constitutional challenges to gun

laws create peculiar puzzles for courts. In other areas, after all,
a laws 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 goalsaving liveswhile 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 Columbias limits on carrying guns in
public.
These cases involve the Districts 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
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(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 Districts

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 pronga good

reason to fear injuryapplicants 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 applicants life. Id.
7-2509.11(1)(A). The police chiefs 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 applicants 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,
1
The District currently allows some very limited carrying even
without a permit. For example, owners may carry registered
handguns for lawful recreational purposes and within their homes
and places of business. D.C. Code 22-4504.01.
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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 Districts 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).
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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 Districts 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 Amendments 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
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apply intermediate scrutiny on the ground that the laws burden
is not substantial or falls outside the Amendments core.
Whichever path we take, we must determine if the good-

reason law impinges on a core Second Amendment right. So
we begin there. The District argues that the Amendments core
does not cover public carrying at all, or that it does not protect
carrying in densely populated areas like D.C., or that it does
not extend to carrying unless there is a special need for self-
defense. We take these three arguments in turn before
considering the analysis of other circuit courts. Having thus
judged whether the regulation impinges on core Second
Amendment conduct, we will turn in Part III to determining
and applying the proper form of review for these cases.
The core or central component of the Second

Amendment right to keep and bear arms protects individual
self-defense, McDonald v. City of Chicago, 561 U.S. 742,
767-78 (2010) (internal quotation mark omitted), by law-
abiding, responsible citizens, Heller I, 554 U.S. at 635
though subject to certain longstanding regulations that limit
the Amendments scope, such as bans on possession by felons
and the mentally ill, id. No one doubts that under Heller I this
core protection covers the right of a law-abiding citizen to keep
in the home common firearms for self-defense.
Our first question is whether the Amendments core

extends to publicly carrying guns for self-defense. The District
argues that it does not, citing Heller Is observation that the
need for defense of self, family, and property is most acute in
the home. Id. at 628. But the fact that the need for self-defense
is most pressing in the home doesnt mean that self-defense at
home is the only right at the Amendments core. After all, the
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Amendments core lawful purpose is self-defense, id. at 630,
and the need for that might arise beyond as well as within the
home. Moreover, the Amendments text protects the right to
bear as well as keep arms. For both reasons, its more
natural to view the Amendments core as including a law-
abiding citizens right to carry common firearms for self-
defense beyond the home (subject again to relevant
longstanding regulations like bans on carrying in sensitive
places). Id. at 626.
This reading finds support in parts of Heller I that speak

louder than the Courts aside about where the need for guns is
most acute. That remark appears when Heller I turns to the
particular ban on possession at issue there. By then the Court
has spent over fifty pages giving independent and seemingly
equal treatments to the right to keep and to bear, first
defining those phrases and then teasing out their
implications. See id. at 570-628. In that long preliminary
analysis, the Court elaborates that to bear means to 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. Id. at 584 (quoting Muscarello v. United States, 524
U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). That
definition shows that the Amendments core must span, in the
Courts own words, the right to possess and carry weapons in
case of confrontation. Id. at 592 (emphasis added).
This first gloss on the Amendments text and Heller Is

reasoning is reinforced by the history that Heller I deems
essential for tracing the pre-existing right embodied by the
Amendment. Id. at 592. Heller I pores over early sources to
show that while preventing Congress from eliminating state
militias was the purpose that prompted the [Amendments]
codification, that purpose did not limit the rights substance,
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which encompassed the personal right to armed self-defense.
Id. at 599-600. Crucially, Heller I winds its way to this
conclusion through a parade of early English, Founding-era,
antebellum, and late-nineteenth century cases and
commentaries. Those same sources attest that the Second
Amendment squarely covers carrying beyond the home for
self-defense.
Most of the relevant nineteenth-century cases, for

example, assume the importance of carrying as well as
possessing. Each puts another crack in the Districts argument
that carrying was peripheral to the right protected by the
Amendment. See Heller I, 554 U.S. at 611-14, 629 (citing State
v. Reid, 1 Ala. 612, 616-17 (1840) (allowing restrictions on the
manner of bearing arms but not limits on carrying so severe
as to render [arms] wholly useless for the purpose of
defence); Nunn v. State, 1 Ga. 243, 251 (1846) (invalidating a
ban on carrying insofar as it prohibited bearing arms openly);
State v. Chandler, 5 La.Ann. 489 (1850) (observing that the
Amendment shields a right to open carry); Johnson v.
Tompkins, 13 F. Cas. 840, 852 (C.C. Pa. 1833) (finding in the
Second Amendment and a state analogue a right to carry arms
in defence of [ones] property or person, and to use them, if . .
. assailed with such force, numbers, or violence as made it
necessary for [ones] protection or safety); Andrews v. State,
50 Tenn. 165, 187 (1871) (invalidating a ban on carrying
pistols publicly or privately, without regard to time or place,
or circumstances)); see also Peruta v. Cty. of San Diego, 742
F.3d 1144, 1174 (9th Cir. 2014), vacated, 781 F.3d 1155, 1156-
63 (9th Cir. 2015) (citing Bliss v. Commonwealth, 12 Ky. (2
Litt.) 90, 93 (1822) (striking down a prohibition on wearing
concealed arms); Cockrum v. State, 24 Tex. 394, 403 (1859)
(allowing bans on the carrying of exceeding[ly] destructive
weapon[s], but not total bans)). Indeed, the few nineteenth-
century cases that upheld onerous limits on carrying against
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challenges under the Second Amendment or close analogues
are sapped of authority by Heller I because each of them
assumed that the Amendment was only about militias and not
personal self-defense. So Heller I rejects their crucial premise.
And with these cases off the table, the remaining cases speak
with one voice on the Amendments coverage of carrying as
well as keeping arms. Peruta, 742 F.3d at 1174. Under Heller
Is treatment of these and earlier cases and commentaries,
history matters, and here it favors the plaintiffs.
The District retorts that self-defense in public must fall

outside the Amendments core protections because the
Amendment was codified in order to keep Congress from
eliminating state militias, a purpose that doesnt require
allowing people to carry guns in times of peace. But again, it
was Heller Is central holding that the reason for the
Amendments passage did not narrow the sweep of its
protections. See 554 U.S. at 598-600. Whatever motivated the
Amendment, at its core was the right to self-defense. Id. at 630.
Thus, the Amendments core generally covers carrying in
public for self-defense.
We say generally because, as noted, the Supreme Court

has taught in Heller I that legal regulations of possession or
carrying that are longstandingincluding bans on
possession by felons or bans on carrying near sensitive sites
reflect limits to the preexisting right protected by the
Amendment. Id. at 626, 635. The District contends that this
doctrine rescues the good-reason law. In the Districts telling,
Anglo-American history reveals two longstanding practices
that so shrank the right later enshrined by the Amendment as to
leave good-reason laws beyond its reach: so-called
Northampton laws and surety laws.
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B
Whatever the right to carry might cover, the District

contends, it does not protect carrying in densely populated or
urban areas like Washington, D.C. That is because the English
right to bear arms had for centuries been fenced in by the
Statute of Northampton, a law that banned carrying firearms in
crowded areas. Indeed, Northampton-like laws had migrated to
some colonies by the late 1700s, and then to several states in
the mid-to-late 1800s. Thus, the District argues, the preexisting
right codified by the Second Amendment did not (or did not at
its core2) cover carrying in densely populated areas like D.C.
That argument pulls usand both parties and several

scholarsinto dense historical weeds. The original
Northampton statute took effect in 1328. Its language will
faintly remind Anglophiles of studying Canterbury Talesin
the original. The rest of us may rest assured that the details of
the text will matter less here than they did in English Lit:
[I]t is enacted, that no man . . . of what condition

soever he be, except the kings servants in his
presence, and his ministers . . . and such as be in
their company assisting them, and also [upon a
cry made for arms to keep the peace, and the
same in such places where such acts happen,] be
so hardy to come before the Kings justices, or
other of the Kings ministers doing their office,
with force and arms, nor bring no force in affray
of the peace, nor to go nor ride armed by night
nor by day, in fairs, markets, nor in the presence
2
It is not clear whether the District believes Northampton laws
show that carrying in densely populated areas falls outside the
Amendments protection altogether, or merely outside its core.
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of the justices or other ministers, nor in no part
elsewhere, upon pain to forfeit their armour to
the King, and their bodies to prison at the Kings
pleasure.
S.A. 36. The District argues that by forbidding all but the kings
servants and ministers to bring force in affray of the peace or
to go [or] ride armed by night or by day in fairs or
markets, this statute banned carrying in densely populated
areas. So carrying in urban areas like D.C., the argument goes,
falls beyond the Amendments perimeter or at least its core.
The plaintiffs answer that the Supreme Court neutralized

this argument in Heller I by citing Blackstones understanding
that Northampton banned only the carrying of dangerous and
unusual weapons. 554 U.S. at 627 (internal quotation marks
omitted); see also 4 William Blackstone, Commentaries on the
Laws of England *149. Plaintiffs and amici also point to an
English case suggesting that by the 1600s, Northampton was
understood to ban only the wielding of arms with evil intent or
in such a way as to terrify the Kings subjects. Sir John
Knights Case, 87 Eng. Rep. 75, 76 (K.B. 1686). The District
offers its replies, to which the plaintiffs issue sur-replies, and
on and on, until for every point there is an equal and opposite
counterpoint.
Happily, though, the state of the law in Chaucers

Englandor for that matter Shakespeares or Cromwellsis
not decisive here. Heller I holds that by the time of the
Founding, the preexisting right enshrined by the Amendment
had ripened to include carrying more broadly than the District
contends based on its reading of the 14th-century statute.
For one thing, the history showcased in Heller I

contradicts the main scholar whose work the District cites for
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the idea that Northampton banned all carrying in crowded areas
(as opposed to carrying dangerous arms or carrying so as to
terrify). On that scholars view, Northampton so narrowed the
English right embodied by the Amendment that individual
self-defense beyond the home deserves only minimalist
protection or categorical exclusion. Patrick J. Charles, The
Faces of the Second Amendment Outside the Home: History
Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1,
43 (2012). This view runs headlong into the history cited by the
Supreme Court to show that the English right secured in 1689
. . . was by the time of the founding understood to be an
individual right protecting against both public and private
violence, Heller I, 554 U.S. at 594, so that the resulting
Amendment guarantees the right to possess and carry
weapons in case of confrontation, id. at 592 (emphasis added).
Early commentators seem to confirm that whatever

Northampton banned on the shores of England or colonial
America, the right to bear arms by the time of the Founding
was thought to protect carrying for self-defense generally.
Thus, Heller I cites the view of James Wilsonearly
commentator, virtual coauthor of the Constitution, and member
of the Supreme Courts first cohortthat Founding-era
Northampton laws banned only the carrying of dangerous and
unusual weapons, in such a manner, as will naturally diffuse a
terrour among the people. James Wilson, The Works of the
Honourable James Wilson 79 (1804); see also Heller I, 554
U.S. at 627. Even more explicit (if less prominent) is one early
commentarys observation that while
[r]iding or going armed with dangerous or

unusual weapons, is a crime against the public
peace, by terrifying the people of the land . . . it
should be remembered, that in this country the
constitution guaranties to all persons the right to
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bear arms; then it can only be a crime to exercise
this right in such a manner, as to terrify the
people unnecessarily.
Charles Humphreys, A Compendium of the Common Law in

Force in Kentucky 482 (Lexington, Ky., William Gibbes Hunt
1822); see also 1 William Hawkins, A Treatise of the Pleas of
the Crown 135, ch. 63, 4, at 135 (1716) ([N]o wearing of
arms is within the meaning of this statute, unless it be
accompanied with such circumstances as are apt to terrify the
people.).
So in light of Heller I, we can sidestep the historical debate

on how the first Northampton law might have hindered
Londoners in the Middle Ages. Common-law rights developed
over time, and American commentaries spell out what early
cases imply: the mature right captured by the Amendment was
not hemmed in by longstanding bans on carrying in densely
populated areas. Its protections today dont give out inside the
Beltway.
The District argues for one other limit to the Amendment:

that its core excludes carrying absent special self-defense needs
because carrying was always cabined by English surety laws.
These laws provided that if Oliver carried a pistol and Thomas
said he reasonably feared that Oliver would injure him or
breach the peace, Oliver had to post a bond to be used to cover
any damage he might do, unless he proved he had reason to fear
injury to his person or family or property. Grace S.A. 21-22.
The District cites these laws as early precursors of its good-
reason law to show that the conduct it blocks lies outside the
Amendments core.
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But surety laws did not deny a responsible person carrying
rights unless he showed a special need for self-defense. They
only burdened someone reasonably accused of posing a threat.
And even he could go on carrying without criminal penalty. He
simply had to post money that would be forfeited if he breached
the peace or injured othersa requirement from which he was
exempt if he needed self-defense. Under surety laws, put
simply, everyone started out with robust carrying rights. Those
reasonably accused were then burdened. And only then did
self-defense needs make a difference, by exempting even the
accused from that burden. A showing of special need did not
expand carrying for the responsible; it shrank burdens on
carrying by the (allegedly) reckless.
More importantly, even if surety laws had made

responsible citizens freedom to carry turn on their need for
self-defense, these laws would do little for the Districts case.
The Supreme Court has denied that indirect or purely civil
burdens shed much light on the historical right embedded by
the Amendment. In his Heller I dissent, Justice Breyer cited
several laws to contradict the majoritys reading of the
Amendment, but the Court set them aside on the ground that
[a]ll of them involved only a small fine and forfeiture of the
weapon (or in a few cases a very brief stay in the local jail)
rather than significant criminal penalties. Such regulations,
the Court reasoned, are akin to modern penalties for minor
public-safety infractions like speeding or jaywalking, which
makes them (in the Courts view) poor evidence of limits on
the Amendments scope. 554 U.S. at 633-34.
Reading the Amendment, applying Heller Is reasoning,

and crediting key early sources, we conclude: the individual
right to carry common firearms beyond the home for self-
defenseeven in densely populated areas, even for those
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lacking special self-defense needsfalls within the core of the
Second Amendments protections.
Other circuits reviewing good-reason regulations have

disagreed, holding that burdens on carrying trigger only
intermediate scrutiny because the right to carry merits less
protection than the right to possess in Heller I. Each circuit
court justifying this modest review of good-reason laws has
relied on an inference from the tolerance in American law for
certain other carrying regulations. But each of these courts has
also dispensed with the historical digging that would have
exposed that inference as faultydigging that Heller I makes
essential to locating the Amendments edge, or at least its core.
The hasty inference appears in a Second Circuit opinion

on New Yorks good-reason law, where the court reasons that
the right to bear must count for less than the right to keep arms
since the former has been regulated more rigorously.
Kachalsky v. Cty. of Westchester, 701 F.3d 81, 94-97 (2d Cir.
2012). 3 The court cites, for example, Heller Is approval of
longstanding bans on carrying near sensitive sites. 701 F.3d at
94. But such traditional limits dont prove that the right to bear
arms is weaker in our tradition since the right to keep arms has
3
The Second Circuit also finds that carrying outside the home
matters less based on analogies to other individual rights. Thus, it
asks: if our law [t]reat[s] the home as special when it comes to
sexual privacy rights, why not when enforcing the right to use a gun?
Kachalsky, 701 F.3d at 94. But of course, sex is different. In Judge
Posners wry understatement, the interest in having sex inside ones
home is much greater than the interest in having sex on the sidewalk
in front of ones home, while the need to fend off violence might
arise on sidewalks and in bedrooms alike. Moore v. Madigan, 702
F.3d 933, 941 (7th Cir. 2012).
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also been subject to longstanding regulations: Heller I itself
cites bans on possession by felons. 554 U.S. at 626.
Kachalsky also notes that while several nineteenth-century

courts may have struck down total bans on carrying, three
upheld bans on bearing concealed or concealable weapons. 701
F.3d at 90, 94. The Fourth Circuit makes a similar point in
applying intermediate scrutiny to another good-reason law. See
Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013)
(quoting United States v. Masciandaro, 638 F.3d 458, 470-71
(4th Cir. 2011) for the proposition that as we move outside the
home, firearm rights have always been more limited, as shown
by court decisions upholding bans on concealed carry).
There is, however, an easy way to explain the many cases

tolerating limits on bearing, despite the parity of keeping and
bearing in the Amendments text, in Heller Is textual analysis,
in early commentaries, and in most early cases. The rights to
keep and to bear, to possess and to carry, are equally important
inasmuch as regulations on each must leave alternative
channels for both. See Heller II, 670 F.3d at 1262 (analogizing
certain gun laws deserving modest review to regulations that
leave ample alternative channels for speech). Its simply that
traditional carrying restrictions have generally left ample
opportunities for bearing arms. To address an example cited by
the Second Circuit, bans on carrying only in small pockets of
the outside world (e.g., near sensitive sites, Heller I, 554 U.S.
at 626-27) impose only lightly on most peoples right to bear
arms in public. As Judge Posner writes: [W]hen 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 . . . . Moore, 702 F.3d at 940. By
contrast, a ban on owning or storing guns at home leaves no
alternative channels for keeping arms.
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The idea that the government must leave ample channels
for keeping and for carrying arms explains much of the analysis
in Heller I. It explains why Heller I saw no need to bother with
any of the [familiar] standards of scrutiny in reviewing a ban
on ownership that left no means of defense by handguns at
home. 554 U.S. at 628. It explains why the Court favorably
treated cases allowing bans on concealed carry only so long as
open carry was allowed. 4 The Court itself highlighted this
feature of those cases, see id. at 612-13, 629, explicitly
describing one of them as limiting only the manner of
exercising gun rights, id. at 626. The ample alternative
channels principle also explains the Courts approval of bans
on some types of guns so long as those most useful for self-
defense remained accessible. Id. at 627. Indeed, this same
principle makes an appearance in Heller II where we cite
Professor Eugene Volokhs suggestion that courts applying the
Second Amendment borrow from the law of content neutral
speech, which looks askance at restrictions that impose
severe burdens (because they dont leave open ample
alternative channels) for speech. 670 F.3d at 1262 (quoting
Eugene Volokh, Implementing the Right to Keep and Bear
Arms for Self-Defense: An Analytical Framework and a
Research Agenda, 56 U.C.L.A. L. Rev. 1443, 1471 (2009)).
4
See State v. Chandler, 5 La.Ann. 489, 489-90 (1850)
(describing a law against the carrying of concealed weapons as one
that interfered with no mans right to carry arms . . . in full view,
which places men upon an equality); Nunn v. State, 1 Ga. 243, 251
(1846) ([S]o far as the act of 1837 seeks to suppress the practice of
carrying certain weapons secretly, . . . it is valid, inasmuch as it does
not deprive the citizen of his natural right of self-defence, or of his
constitutional right to keep and bear arms. But that so much of it, as
contains a prohibition against bearing arms openly, is in conflict with
the Constitution, and void . . . .).
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These points confirm that the rights to keep and bear arms
are on equal footingthat the law must leave responsible, law-
abiding citizens some reasonable means of exercising each.
The prevalence of, say, bans on carrying near sensitive sites
would prove that the right to bear arms mattered less only if our
law would reject equally modest burdens on keeping arms (e.g.,
bans on storing them on open surfaces at home). Neither the
Second nor the Fourth Circuit has suggested that it would. So
each was too quick to infer that our legal tradition demotes the
right to bear arms relative to its Constitutional twin.
Finally, the Third Circuit relied on the reasoning of the

Second and Fourth Circuits for its decision to submit good-
reason laws to intermediate scrutiny. See Drake v. Filko, 724
F.3d 426, 430 (3d Cir. 2013). The only other circuit to address
the issue, the Ninth, reasoned that a good-reason limit on
concealed carry must be lawful since outright bans on
concealed carry have been upheld. 5 Relying on this whole-
includes-its-parts reasoning, the Ninth Circuit expressly
sidestepped our question of whether the [Amendment]
protects some ability to carry firearms in public, such as open
carry. Peruta v. Cty. of San Diego, 824 F.3d 919, 927 (9th Cir.
2016) (en banc).
Indeed, all of the circuits settling on a level of scrutiny to

apply to good-reason laws explicitly declined to use Heller Is
historical method to determine how rigorously the Amendment
5
We do not agree with the Ninth Circuit that a ban on concealed
carry can be assessed in isolation from the rest of a jurisdictions gun
regulations. As weve noted, text and history and precedent urge that
the Second Amendment requires governments to leave responsible
citizens ample means for self-defense at home and outside. So a
regulations validity may turn partly on whether surrounding laws
leave ample options for keeping and carrying.
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applies beyond the home. 6 Each simply assumed for
arguments sake that the Amendment covers some carrying.
Though meant to be generous to the plaintiffs, by granting a
premise in their favor, this move ultimately weakened the
plaintiffs case. It excused courts from sifting through sources
pointing to the equal importance of the right to bear:
[T]he Second, Third, and Fourth Circuits . . .

declined to undertake a complete historical
analysis of the scope and nature of the Second
Amendment right outside the home. . . . As a
result, they misapprehend both the nature of the
Second Amendment right and the implications
of state laws that prevent the vast majority of
responsible, law-abiding citizens from carrying
in public for lawful self-defense purposes. . . .
[They] failed to comprehend that carrying
weapons in public for the lawful purpose of self
defense is a central component of the right to
bear arms.
Peruta, 742 F.3d at 1173-75. Indeed, that conclusion is shared

by the only other circuit that has surveyed the relevant history
through the lens of Heller I: the Seventh. See Moore, 702 F.3d
at 935-37 (striking down a more widely applicable carrying
ban).
So we do not gainsay our sister circuits considered

judgmentsonly the assumptions that some of them made for
6
Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (declining to
engag[e] in a round of full-blown historical analysis); Woollard,
712 F.3d at 874-76 (eschewing a definitive ruling on the
Amendments scope); Kachalsky, 701 F.3d at 91 (deciding not to
plumb highly ambiguous history and tradition to determine the
meaning of the Amendment).
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arguments sakewhen we conclude that (longstanding
exceptions aside) carrying beyond the home, even in populated
areas, even without special need, falls within the Amendments
coverage, indeed within its core.
III
Having determined that the good-reason law impinges on

core Second Amendment conduct, we now consider whether
we should subject it to the tiers of scrutiny familiar from other
realms of constitutional law. Grace and Wrenn argue that we
should strike down the good-reason law without applying any
such analysis, following the Supreme Courts approach to a
total ban on gun ownership in Heller I. The District thinks
the good-reason law is rather more mundanenot a total ban
on carrying but a mere hurdle for individuals to clear before
getting to carry. Thus, the District argues, we should apply
intermediate scrutiny under Heller II.
We begin by revisiting Heller I to see why total bans are

always invalid and what makes for a total ban in the first place.
Doing so will make it hard to believe that the Heller I Court
which dispensed with tiers of scrutiny in striking down a ban
on possession by almost everyonewould have gone easier on
a law banning possession by everyone but that small minority
with a special need to possess. Since possession and carrying
are on par with each other, it will follow that the same
categorical treatment should apply to the Districts ban on
carrying by all but the few who prove a special reason to carry.
Recall that under Heller I, the Second Amendment

protects an individual right of responsible, law-abiding citizens
to defend themselves. In particular, then, the right to carry is a
right held by responsible, law-abiding citizens for self-defense.
But self-defense against what? The most natural answer is that
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the Amendment enables self-defense at least against the level
of threat generally faced by those covered by the Amendment:
responsible and law-abiding citizens. Likewise, responsible
must include those who are no more dangerous with a gun than
law-abiding citizens generally are. Cf. Heller v. District of
Columbia (Heller III), 801 F.3d 264, 280 (D.C. Cir. 2015)
(faulting a cap on gun registrations for trying to reduce gun
ownership indiscriminately rather than zero in on likely
abuses). At a minimum, then, the Second Amendment must
enable armed self-defense by commonly situated citizens:
those who possess common levels of need and pose only
common levels of risk.
This analysis reflects the most sensible way of spelling out

Second Amendment rights absent contrary clues in the
Amendments history as understood by Heller I: if the
Amendment is for law-abiding citizens as a rule, then it must
secure gun access at least for each typical member of that class.
Indeed, this reading fits naturally with Heller Is holding about
the meaning of arms: just as the Amendment requires access
to weapons in common use, id. at 627 (quoting United States
v. Miller, 307 U.S. 174, 179 (1939)), including the most
popular self-defense weapon among citizens today, id. at 629,
so must the Amendment enable defense under the
circumstances common among citizens today. The reason for
both points is the same: the early cases cited in Heller I
envisioned that law-abiding citizens as a general rule would be
entitled to have and carry arms for self-defense. So the class of
arms protected must include guns in common use; and the class
of citizens who can wield them must include those with
common levels of competence and responsibilityand need.
Longstanding regulations aside, then, the Amendment

shields at least the ability to carry common arms in self-defense
for citizens who are commonly situated in the ways just
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mentioned. Yet the Districts good-reason law bars most
people from exercising this right at all. To be sure, the good-
reason law leaves each D.C. resident some remote chance of
one day carrying in self-defense, but that isnt the question. The
Second Amendment doesnt secure a right to have some chance
at self-defense. Again, at a minimum the Amendments core
must protect carrying given the risks and needs typical of law-
abiding citizens. That is a right that most D.C. residents can
never exercise, by the laws very design. In this way, the
Districts regulation completely prohibits most residents from
exercising the constitutional right to bear arms as viewed in the
light cast by history and Heller I.
And under Heller I, complete prohibition[s] of Second

Amendment rights are always invalid. Id. at 629. Its
appropriate to strike down such total ban[s] without
bothering to apply tiers of scrutiny because no such analysis
could ever sanction obliterations of an enumerated
constitutional right. Id. With this categorical approach to such
bans, Heller I ensured that judicial tests for implementing gun
rights would not be misused to swallow those rights whole.
Heller I essentially held that the right to keep and bear arms
must mean at an absolute minimum the right to own a gun, so
any acceptable standard of review would have to accommodate
that fact. By declining to apply tiers of scrutiny to a total ban
on ownership, Heller I closed off the possibility that courts
would erroneously find some benefits weighty enough to
justify other effective bans on the right to keep common arms.
We would flout this lesson of Heller I if we proceeded as if
some benefits could justify laws that necessarily destroy the
ordinarily situated citizens right to bear common armsa
right also guaranteed by the Amendment, on the most natural
reading of Heller I.
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Of course, the good-reason law isnt a total ban for the
D.C. population as a whole of the right to bear common arms
under common circumstances. After all, it allows some D.C.
residentsthose with a special needto defend against threats
both common to everyone and specific to themselves. But the
ban on ownership struck down in Heller I also made minor
exceptions for certain sorts of owners, who could then defend
their homes to the hilt. 554 U.S. at 570 n.1. That made no
difference to constitutional review of the ban, see id., for a
simple reason: the point of the Amendment isnt to ensure that
some guns would find their way into D.C., but that guns would
be available to each responsible citizen as a rule (i.e., at least to
those no more prone to misuse that access than anyone else).
So if Heller I dictates a certain treatment of total bans on
Second Amendment rights, that treatment must apply to total
bans on carrying (or possession) by ordinarily situated
individuals covered by the Amendment.
This point brings into focus the legally decisive fact: the
good-reason law is necessarily a total ban on most D.C.
residents right to carry a gun in the face of ordinary self-
defense needs, where these residents are no more dangerous
with a gun than the next law-abiding citizen. We say
necessarily because the law destroys the ordinarily situated
citizens right to bear arms not as a side effect of applying
other, reasonable regulations (like those upheld in Heller II and
Heller III), but by design: it looks precisely for needs
distinguishable from those of the community. So we neednt
pause to apply tiers of scrutiny, as if strong enough showings
of public benefits could save this destruction of so many
commonly situated D.C. residents constitutional right to bear
common arms for self-defense in any fashion at all. Bans on
the ability of most citizens to exercise an enumerated right
would have to flunk any judicial test that was appropriately
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written and applied, so we strike down the Districts law here
apart from any particular balancing test.
Indeed, as noted, it seems highly doubtful that the Heller I

Court would have acted any differently in reviewing a good-
reason regulation on possessionone limiting gun ownership
to that minority of residents with more-than-common needs for
self-defense at home. Yet possession and carryingkeeping
and bearingare on equal footing. So Heller Is language and
logic all but dictate that no tiers-of-scrutiny analysis could
deliver the good-reason law a clean bill of constitutional health.
Heller Is categorical approach is appropriate here even

though our previous cases have always applied tiers of scrutiny
to gun laws. To be sure, Heller II spoke generally of
adopt[ing] . . . a two-step approach for reviewing the
Districts gun laws, which would ask first whether a
particular provision burdens a Second Amendment right and
then, if it does, go on to determine whether the provision
passes muster under the appropriate level of constitutional
scrutiny. 670 F.3d at 1252 (emphasis added). Though
somewhat open-ended, this language standing alone would
suggest that we apply only intermediate or strict scrutiny to
every burdensome gun law we ever review. But another
passage in Heller II expressly limited the opinions framework
to laws significantly less severe than a total prohibition. Id.
at 1266. We believe this caveatwhich Heller II offered to
distinguish Heller Iwas in fact required by Heller Is
example. So we read this explicit limit in Heller II as
controlling that decisions more generic embrace of level[s]
of constitutional scrutiny. 670 F.3d at 1252; cf. Gerhardson v.
Gopher News Co., 698 F.2d 1052, 1059 (8th Cir. 2012) (We
will not interpret our precedent in a way that is inconsistent
with binding Supreme Court authority.). True, our gun cases
have never applied a more categorical approach, but then
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weve never been asked to review so much as a substantial
burden on a core protected right, to say nothing of a ban. That
is why we have always relied on the familiar tiers of scrutiny;
in fact, weve never applied more than intermediate scrutiny.
This is different. Here Heller Is approach is more fitting.

Indeed, it fits so tightly that this approach would rarely (if ever)
apply in cases we can imagine arising in the future. Most other
regulations wont deprive even ordinarily situated citizens of
all means of carrying (or possessing) handguns in self-defense,
as the good-reason law seems almost engineered to do.
So our approach, briefed by all the parties, is also urged by

Heller I and coheres with Heller II. Its narrower than any other
basis for decision but not ad hoc. And it would avoid
suggesting what Heller I implicitly denies: that some public
benefits could justify preventing people from exercising the
law-abiding citizens right to bear arms for self-defense given
the risk and needs typical of, well, law-abiding citizens.
We pause to draw together all the pieces of our analysis:

At the Second Amendments core lies the right of responsible
citizens to carry firearms for personal self-defense beyond the
home, subject to longstanding restrictions. These traditional
limits include, for instance, licensing requirements, but not
bans on carrying in urban areas like D.C. or bans on carrying
absent a special need for self-defense. In fact, the
Amendments core at a minimum shields the typically situated
citizens ability to carry common arms generally. The Districts
good-reason law is necessarily a total ban on exercises of that
constitutional right for most D.C. residents. Thats enough to
sink this law under Heller I.
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IV
Because they sought a preliminary injunction, plaintiffs

below had the burden to show that [they are] likely to succeed
on the merits, that [they are] likely to suffer irreparable harm
in the absence of preliminary relief, [and] that the balance of
equities, including the public interest, tips in [their] favor.
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). But
here the merits of the plaintiffs challenge are certain and dont
turn on disputed facts, so our analysis can stop at the first,
merits prong of this inquiry. See, e.g., Agency for Intl Dev. v.
Alliance for Open Socy Intl, Inc., 133 S. Ct. 2321, 2332
(2013) (affirming circuit courts affirmance of a grant of a
preliminary injunction based only on the merits of petitioners
constitutional challenge).
Indeed, since our holding at this stage makes a certain

outcome inevitable in these cases, we have power to dispose
[of it] as may be just under the circumstances, Gross v.
United States, 390 U.S. 62, 71 (1968) (quoting 28 U.S.C.
2106), and should do so to obviate further and entirely
unnecessary proceedings below, id. at 72; see also Indep.
Bankers Assn of Am. v. Heimann, 613 F.2d 1164, 1167 (D.C.
Cir. 1979) (Although the case could now be remanded to the
District Court for a decision on the merits, we have concluded
that such a course is unnecessary and indeed would be unduly
wasteful of judicial resources.) (citing 28 U.S.C. 2106).
Because the Districts good-reason law merits invalidation
under Heller I regardless of its precise benefits, we would be
wasting judicial resources if we remanded for the court to
develop the records in these cases. Cf. Moore, 702 F.3d at 942
(reversing denials of preliminary injunctions and remanding
with instructions to enter declarations of unconstitutionality
and permanent injunctions).
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***
To watch the news for even a week in any major city is to

give up any illusions about the problem of handgun violence
in this country. Heller I, 554 U.S. at 570. The District has
understandably sought to fight this scourge with every legal
tool at its disposal. For that long struggle against gun violence,
you might see in todays decision a defeat; you might see the
opposite. To say whether it is one or the other is beyond our
ken here. We are bound to leave the District as much space to
regulate as the Constitution allowsbut no more. Just so, our
opinion does little more than trace the boundaries laid in 1791
and flagged in Heller I. And the resulting decision rests on a
rule so narrow that good-reason laws seem almost uniquely
designed to defy it: that the law-abiding citizens right to bear
common arms must enable the typical citizen to carry a gun.
We vacate both orders below and remand with instructions

to enter permanent injunctions against enforcement of the
Districts good-reason law.
So ordered.
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KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

My colleagues conclude that the Districts good reason
regulation is categorically barred by the Second Amendment. I
disagree.1
Assuming arguendo that the Second Amendments

individual right to keep and bear arms extends beyond the
home,2 see Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013)
(declining to definitively declare that the individual right to
bear arms for the purpose of self-defense extends beyond the
home); Peruta v. Cty. of San Diego, 824 F.3d 919, 927 (9th
Cir. 2016) (en banc) (same); Woollard v. Gallagher, 712 F.3d
865, 876 (4th Cir. 2013) (same); Kachalsky v. Cty. of
Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (same), the proper
standard of review depends on the nature of the conduct being
regulated and the degree to which the challenged law burdens
the right. Heller v. D.C. (Heller II), 670 F.3d 1244, 1257
(D.C. Cir. 2011) (quoting United States v. Chester, 628 F.3d
673, 682 (4th Cir. 2010)). Nothing in Heller [I] suggests a
case involving a restriction significantly less severe than the
total prohibition of handguns at issue there could or should be
resolved without reference to one or another of the familiar
constitutional standards of scrutiny. Id. at 1266 (internal
quotation marks omitted). Although a regulation that imposes
a substantial burden upon the core right of self-defense
protected by the Second Amendment must have a strong
1
I would affirm the denial of preliminary injunctive relief in
Wrenn v. District of Columbia, 167 F. Supp. 3d 86 (D.D.C. 2016),
and reverse the grant of preliminary injunctive relief in Grace v.
District of Columbia, 187 F. Supp. 3d 124 (D.D.C. 2016).
2
Although I assume that the Second Amendment extends to
some extent beyond the home, I am certain the core Second
Amendment right does not. The application of strict scrutinylet
alone my colleagues application of a categorical banis, in my
view, patently off-base.
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justification, . . . a regulation that imposes a less substantial
burden should be proportionately easier to justify. Id. at 1257.
The sole Second Amendment core right is the right to
possess arms for self-defense in the home. Drake, 724 F.3d at
431 ([T]he individual right to bear arms for the purpose of
self-defense [in] the home [is] the core of the right as
identified by Heller.); Kachalsky, 701 F.3d at 89 (Second
Amendment guarantees are at their zenith within the home.);
United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir.
2011) ([A] lesser showing is necessary with respect to laws
that burden the right to keep and bear arms outside of the
home.). This conclusion is evidenced, first and foremost, by
the United States Supreme Courts declarations in District of
Columbia v. Heller (Heller I) that the the need for defense of
self, family, and property is most acute in the home, 554 U.S.
570, 628 (2008) (emphasis added), and in McDonald v. City of
Chicago that the Second Amendment protects a personal
right to keep and bear arms for lawful purposes, most notably
for self-defense within the home, 561 U.S. 742, 780 (2010)
(emphasis added). By characterizing the Second Amendment
right as most notable and most acute in the home, the Supreme
Court necessarily implied that that right is less notable and less
acute outside the home. See Drake, 724 F.3d at 431; Woollard,
712 F.3d at 876; Kachalsky, 701 F.3d at 89; Masciandaro, 638
F.3d at 471. A right that is less notable and less acute cannot
reside at the Second Amendments core. My colleagues
attempt to minimize the Supreme Courts declarations by
insisting that the relevant history speaks with one voice on
the Amendments coverage of carrying as well as keeping
arms. Maj. Op. 12-13 (internal quotation marks omitted). But
their view of history is with blinders on as it is contradicted by
our sister circuits extensive review of the same historical
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record.3 Kachalsky, 701 F.3d at 91 (History and tradition do
not speak with one voice here. What history demonstrates is
that states often disagreed as to the scope of the right to bear
arms, whether the right was embodied in a state constitution or
the Second Amendment.); Drake, 724 F.3d at 431 (same);
Masciandaro, 638 F.3d at 470-71 ([A]s we move outside the
home, firearm rights have always been more limited, because
public safety interests often outweigh individual interests in
self-defense.); cf. Peruta, 824 F.3d at 939 (in U.S. history,
the Second Amendment right to keep and bear arms does not
include, in any degree, the right of a member of the general
public to carry concealed firearms in public). I would join
these circuits and find that the core Second Amendment
right does not extend beyond the home given the history
upholding public carry regulations, a history enshrined
with[in] the scope of the Second Amendment when it was
adopted. Kachalsky, 701 F.3d at 96 (alteration in original)
(The historical prevalence of the regulation of firearms in
public demonstrates that while the Second Amendments core
concerns are strongest inside hearth and home, states have
long recognized a countervailing and competing set of
3
The majority acknowledges that other circuits have identified
regulations, including bans, regarding the public bearing of arms
that were upheld by nineteenth-century courts. See Kachalsky, 701
F.3d at 94-96; accord Woollard, 712 F.3d at 876 (quoting
Masciandaro, 638 F.3d at 470-71). They then discount those
decisions as having applied a Second Amendment corollary to the
First Amendments ample alternative channels doctrine. Maj. Op.
20-22. I am not ready to revise history by asserting that nineteenth-
century courts used reasoning first articulated a century later. See
Peruta, 824 F.3d at 942.
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4
concerns with regard to handgun ownership and use in
public.). Regulations restricting public carrying are all the
more compelling in a geographically small but heavily
populated urban area like the District. See Joseph Blocher,
Firearm Localism, 123 YALE L.J. 82, 108 (2013) (American
cities have traditionally had much more stringent gun control
than rural areas.).
Because the Districts good reason regulation does not
affect firearm possession within the home and therefore does
not impose[] a substantial burden upon the core right of self-
defense protected by the Second Amendment, I believe the
correct standard of review is, at most, intermediate scrutiny.
Heller II, 670 F.3d at 1257; accord Woollard, 712 F.3d at 878
(recognizing longstanding out-of-the-home/in-the-home
distinction bear[ing] directly on the level of scrutiny
applicable); Kachalsky, 701 F.3d at 96 (Because our
tradition so clearly indicates a substantial role for state
regulation of the carrying of firearms in public, we conclude
that intermediate scrutiny is appropriate in this case.). For the
Districts challenged licensing regime to pass muster under
intermediate scrutiny, it must show that the regime is
substantially related to an important governmental
objective. Heller II, 670 F.3d at 1258 (quoting Clark v. Jeter,
486 U.S. 456, 461 (1988)). That is, the District must establish
a tight fit between the registration requirements and an
important or substantial governmental interest, a fit that
employs not necessarily the least restrictive means but . . . a
means narrowly tailored to achieve the desired objective. Id.
(quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,
480 (1989)). It essentially imposes a balancing test: the law
is constitutional if the governmental interest outweighs the
burden [on constitutional rights] and cannot be achieved by
means that do not infringe . . . rights as significantly. Heller
v. D.C. (Heller III), 801 F.3d 264, 282 (D.C. Cir. 2015)
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5
(Henderson, J., concurring in part and dissenting in part)
(quoting Minneapolis Star & Tribune Co. v. Minn. Commr of
Revenue, 460 U.S. 575, 585 n. 7 (1983)).
As I have previously written, two additional well-
grounded principles should guide the intermediate scrutiny
analysis of the Districts good reason regulation. Id. at 282-84.
First, the nature of firearms regulation requires ample
deference to the legislature. Id. at 282. Ample deference
stems from the recognition that gun laws involve a complex
and dynamic issue implicating vast amounts of data that the
legislature is far better equipped to gather and analyze. Id.
(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662-
64 (1994)); cf. Holder v. Humanitarian Law Project, 561 U.S.
1, 34 (2010) (in national security context, information can be
difficult to obtain and the impact of certain conduct difficult to
assess).
Second, the District of Columbia is unique. Heller III, 801
F.3d at 283 (Henderson, J., concurring in part and dissenting
in part). It is the seat of our national government, a city full
of high-level government officials, diplomats, monuments,
parades, protests and demonstrations and, perhaps most
pertinent, countless government buildings where citizens are
almost universally prohibited from possessing firearms. Id.
Accordingly, our analysis should reflect an appreciation of
the unique challenges that confront the District as it struggles
to regulate firearms in our Nations capital. Id. (citing City of
L.A. v. Alameda Books, Inc., 535 U.S. 425, 439-40 (2002)).
I believe the Districts good reason regulation passes
muster under intermediate scrutiny. The District identifies two
important government objectives underlying its licensing
regime: the prevention of crime and the promotion of public
safety. Wrenn Appellee Br. 41. In Heller III, we held,
unsurprisingly, that promoting public safety is indeed a
#1685640 Filed: 08/24/2017
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38
6
substantial government interest.4 Heller III, 801 F.3d at 274.
The District has provided evidence that its licensing regime
promotes [that] substantial governmental interest [in a way]
that would be achieved less effectively absent the regulation,
and, at the same time, is not substantially broader than
necessary. Id. at 272 (quoting Heller II, 670 F.3d at 1258).
Namely, the District highlights the empirical connection
between a profusion of guns and increased violent crime,
relying on, inter alia, the studies of leading researchers,
including the National Research Council, and of the
legislatures of New York, Maryland and New Jerseyall of
which have put in place similar licensing regimes. Wrenn
Appellee Br. 41-45. Moreover, the District points to the expert
testimony of District Police Chief Cathy Lanier as well as
commentary from the United States Secret Service and United
States Capitol Police explaining the Districts special security
concerns that warrant firearms restrictions. Id. at 44. The
Districts good reason regulation constitutes its legislatures
analysis of a complex and dynamic situation, an analysis
that examines vast amounts of data and considers the unique
needs of the District. Heller III, 801 F.3d at 283 (Henderson,
J., concurring in part and dissenting in part). The good reason
regulation that emerged deserves ample deference, id. at
282, that is, a deference that recognizes
[i]t is the legislatures job, not ours, to weigh
conflicting evidence and make policy judgments.
Indeed, assessing the risks and benefits of handgun
possession and shaping a licensing scheme to
maximize the competing public-policy objectives, as
[the District] did, is precisely the type of
discretionary judgment that officials in the
4
The Supreme Court has also referred to the significant
governmental interest in public safety. Schneck v. Pro-Choice
Network of W.N.Y., 519 U.S. 357, 376 (1997).
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7
legislative and executive branches of state
government regularly make.
Kachalsky, 701 F.3d at 99. At bottom, firearms regulation is
serious business. We do not wish to be even minutely
responsible for some unspeakably tragic act of mayhem
because in the peace of our judicial chambers we
miscalculated as to Second Amendment rights . . . . If ever
there was an occasion for restraint, this would seem to be it.
Masciandaro, 638 F.3d at 475-76.
I respectfully dissent.
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and amici.Brian Wrenn, Tyler Whidby, and the Second
Amendment Foundation, Inc., are appellants here and plaintiffs below. The
District of Columbia and Metropolitan Police Department Chief Peter Newsham
are appellees here and defendants below.
Amici curiae for appellants include Gun Owners of America, Inc., Gun
Owners Foundation, U.S. Justice Foundation, Conservative Legal Defense and
Education Fund, Heller Foundation, and Policy Analysis Center.
Amici curiae for appellees include The Brady Center to Prevent Gun
Violence, DC Appleseed Center for Law & Justice, DC for Democracy, D.C. Vote,
League of Women Voters of the District of Columbia, Anthony A. Williams,
Vincent C. Gray, Everytown for Gun Safety, and the States of Maryland,
California, Connecticut, Hawaii, Illinois, Iowa, Massachusetts, New York, Oregon,
and Washington.
Charles Nichols filed a notice that he would participate as amicus curiae but
does not support either party. He did not file a brief.
B. Rulings under review.The appellants appeal an order issued on March
7, 2016, by District Court Judge Colleen Kollar-Kotelly, denying their motion for a
preliminary injunction barring the District from enforcing D.C. Code 22-4506(a),
which requires that any applicant for a license to publicly carry a handgun
demonstrate good reason to fear injury to his or her person or property or any
other proper reason for carrying a pistol. District Court ECF Record Docket
(RD) 54.
C. Related cases.This is the second appeal to this Court arising out of this
lawsuit. In Wrenn v. District of Columbia, 808 F.3d 81 (D.C. Cir. 2015), the
District appealed an order entering a preliminary injunction barring enforcement of
the good reason standard. On December 15, 2015, this Court vacated the order
because it had been issued by a visiting judge whose designation did not extend to
this case. Id. at 84. The mandate issued on February 5, 2016, and the case was
assigned to Judge Kollar-Kotelly on February 9, 2016.
In the meanwhile, in Grace v. District of Columbia, a different group of
plaintiffs sued the District, raising the same claim and also seeking preliminary
relief. Grace RD 1, 6. Grace was assigned to Judge Richard Leon.
The District and the Wrenn plaintiffs notified the judges that Grace and
Wrenn were related. RD34; Wrenn RD42, 43. The Grace plaintiffs objected.
RD35 at 2. Judge Leon did not transfer the case to Judge Kollar-Kotelly, and the
two caseswith their pending motions for preliminary injunctionproceeded on
separate tracks.
On May 17, 2016, Judge Leon granted the Grace plaintiffs motion for a
preliminary injunction barring the District from enforcing the good reason
standard. Grace RD45, 46. The District appealed, and this Court expedited the
case and ordered argument to be held in September 2016. No. 16-7067, 6/8/16
Order. This Court held argument on this appeal and the Wrenn appeal on the same
date and before the same panel, and issued a single decision addressing both
appeals. 7/25/17 Opinion.

CERTIFICATE OF SERVICE
I certify that on August 24, 2017, all parties who are required to be served
were served by the Courts ECF system.

HOLLY M. JOHNSON
CERTIFICATE OF COMPLIANCE
I further certify that this petition complies with the type-volume limitation in
Federal Rule of Appellate Procedure 35(b)(2) because the petition contains 3,889
words, excluding exempted parts. This petition complies with the typeface and
type style requirements of Federal Rule of Appellate Procedure 32(a)(5) and (6)
and (c)(2) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in Times New Roman 14 point.

HOLLY M. JOHNSON

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USCA Case #16-7025 Document #1690130 Filed: 08/24/2017 Page 1 of 61

DECIDED ON JULY 25, 2017

IN THE UNITED STATES COURT OF APPEALS

BRIAN WRENN, et al.,

DISTRICT OF COLUMBIA, et al.,

ON APPEAL FROM AN ORDER OF THE

PETITION OF THE DISTRICT OF COLUMBIA AND

INTRODUCTION AND RULE 35(b) STATEMENT

question of exceptional importance and because rehearing is needed to resolve

conflict with binding precedent.

densely populated. Unlike any city, it is filled with thousands of high-ranking

federal officials and international diplomats, and it hosts hundreds of heavily

considered public-carrying law that addresses the Districts particular public-safety

regardless of local needs and values or the public-safety consequencesto allow

anyone who meets threshold requirements to carry a handgun in populated public

those legislative judgments. This Courts precedent mandates deference to these

and cost lives.

majority declined to conduct this historical analysis as it applied to public carry,

in misinterpreting Heller I, the majority departed from this Courts well-

established two-step framework for assessing Second Amendment challenges to

from ordering final judgment for plaintiffs on appeal from a preliminary-injunction

ruling. En banc review is warranted.

NATURE OF THE CASE

public carrying in Palmer v. District of Columbia, 59 F. Supp. 3d 173 (D.D.C.

2014), the Council enacted legislation to authorize the issuance of public-carry

D.C. Code 22-4506(a). To show good reason, an applicant 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 applicants life. D.C. Code 7-2509.11(1)(A). [O]ther

applicants person. D.C. Code 7-2509.11(1)(B).

preliminarily enjoin enforcement of the law. In Wrenn v. District of Columbia,

167 F. Supp. 3d 86 (D.D.C. 2016), Judge Kollar-Kotelly denied the motion,

assuming the law implicates a Second Amendment right, it should be assessed

underand would likely surviveintermediate scrutiny. Id. at 94-95. In Grace v.

preliminary injunction, finding a substantial[] burden[] on the Second

Amendments core right of self-defense meriting strict scrutiny. Id. at 143-47.

Court found the good reason standard categorically unconstitutional. Opinion

historical analysis to determine the existence and scope of a Second Amendment

I. This Appeal Involves A Question Of Exceptional Importance Given The

other circuits have recognized, it is the essential component of a scheme crafted to

right-to-carry regime despite the Councils legislative judgment, based on

Court, sitting en banc, rather than by a two-judge panel majorityespecially

Courts previous denials of certiorari in similar cases.

The risk inherent in firearms distinguishes the Second Amendment right

District residents, through the well-researched findings of their elected

representatives, have determined that public carrying without good reason

reduces public safety. That judgment is entitled to deference. Schrader v. Holder,

dangers in carrying firearms and the manner to combat those risks).

The Council primarily relied on a 2014 Stanford University study led by

GJA135, WJA66 (Committee Report); see GJA251-358, WJA182-289 (Donohue,

followed a decade of research and statistical analysistime spent developing

one of the most-favored models demonstrated a substantial increase in crime after

laws increased every crime category [except murder] by at least 8 percent.

The Council also relied on the predictive judgments of the legislatures of

with sensitive places from a public safety perspective. GJA123; WJA54. As a

challenges are greater. GJA124; WJA55. Furthermore, a significant increase

in public carrying would force federal law enforcement to step up protection of

anything, in an increase in adult homicide rates, GJA359, WJA290 (Ludwig,

Concealed-Gun-Carrying Laws and Violent Crime: Evidence from State Panel

states experience increases in crime after enacting right-to-carry laws, GJA380,