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Case number 14-7071.

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Dick Anthony Heller at L. Appellants versus District of Columbia at L. Mr. Hallbrook for the appellants.

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Ms.

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Alican for the appellees.

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Let's let them get out.

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Wait till they're out.

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All right, Mr. Halbrook.

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Good morning.

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Thank you, Your Honor.

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Good morning.

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I'm Stephen Halbrook for the appellants.

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May the court please.

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This case involves the issue of whether the most restrictive burdens on Second Amendment rights nationwide are narrowly tailored and constitute a close fit for the goals, the governmental objectives of protection of police officers and crime control.

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This court remanded the case

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in 2011 for the district to provide meaningful evidence, not mere assertions, to justify its predictive judgments.

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And after going through this period of discovery and summary judgment, instead of providing meaningful evidence, the district has provided the same ipsy dixit that it provided before in the form of mere assertions without facts or data to justify it.

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I'll ask you one thing.

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Sometimes in other cases where we've had these types of remands, like Turner itself, the case actually goes to trial with fact-finding, a full record being made, and then the constitutional decision is based on that full

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record.

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Is it your view that part of the problem here is that summary judgment was wrong, that there should have been an actual trial and fact finding, or is your view that a trial wouldn't change anything and it's simply the decision itself?

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I don't think a trial would have changed anything, Judge Millett.

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I think what happened here was that in the first go-around, there were opinions with no data or facts to support them.

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The case was remanded.

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On summary judgment, it was the same thing.

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There were the expert reports filed.

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We objected to those because they lacked facts or data.

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They're basically on appeal to authority, the three law enforcement experts.

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I don't see what more a trial would have added to this process in terms of getting facts and data to back up the predictive judgments made by the district.

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That was the point.

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So you believe the district court took all the record facts in the light most favorable to you in making this decision?

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Well, no, I don't.

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We have the idea that the district... Do you think there are disputed facts?

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Do you dispute some of the facts of the district court and the government rely on?

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Well, the district court basically discounted the facts that we set forth.

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We had expert report.

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That normally sounds like a summary judgment problem, right?

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That's a summary judgment problem, yes.

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I don't see where, for example, credibility of witnesses, things like seeing them directly would have really helped.

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But the law enforcement experts testified they thought these were good ideas without any data to support them.

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And for them to say that orally in a trial would really not be any different in terms of the information that would be available for the district court to review.

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You don't need fact-finding on the burden, fact-finding on the fit.

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You don't need or want any of that.

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The fact finding on the burden was something, the case was not remanded so much for the burden as for the district to come forward and justify these regulations.

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The burdens were undisputed in this case.

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We filed declarations by the plaintiffs and the district took some depositions and never disputed any of the burdens.

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The burdens in terms of the time it takes to register guns,

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the fact that if they're deregistered, the chances that maybe you won't get the information or the trouble that you have to go through to re-register facts like that.

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In fact, that's a law that doesn't exist anywhere else in any state nationwide.

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But the burdens were really undisputed, so I'm not sure that in terms of what the district court did here, that there would have been any further information in a trial that would have been rendered.

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Is there still a facial challenge or is it just as applied?

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You have both, Joe?

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We have both challenges, yes, Your Honor.

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This is, as I say, it's a law that doesn't exist in any state nationwide.

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There were two jurisprudential issues, if I could mention very quickly.

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One was the

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The principle that the district, that a governmental body has to demonstrate that the harms are real and that in fact the means chosen to address those harms would alleviate the harms in a direct and material way,

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And that's from Turner 1.

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The district says that's a stray phrase.

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It's not binding.

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That was only a plurality opinion.

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But it's been established jurisprudence in this court and in the Supreme Court both before and after Turner 1, most recently in Edwards versus DC, which invalidated last year the tour guide requirement that they take a test in the District of Columbia.

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There was no real facts that justified it.

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The second jurisprudential issue that we have, which I'll just briefly mention, is the double deference theory that the district court set forth in terms of if it's gun policy, if it involves Second Amendment rights, then we doubly defer to the legislature.

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And in this case, there was no justification.

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That double deference theory, if you trace the

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cases back this in support of that it basically goes back to turner one and two which is not a double difference there we're talking about intermediate scrutiny for this right and that was the standard of review that this court chosen

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case here before and there's no special rule for Second Amendment rights.

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The McDonald case by the Supreme Court held that it's not a second class right and that one uses the same tools of interpretation as one would for the First Amendment or other rights.

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Do you agree that the fact that D.C.

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is filled with

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lots of diplomats and government officials, parades, those types of things, creates an increased vulnerability that the government can address.

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Absolutely.

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We don't contest that at all, and we think that law enforcement efforts should be directed to that.

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But there's no evidence, either in logic or in facts or data, that this registration requirement has anything to do with that.

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So DC could do something that maybe other cities

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or jurisdictions might not need to do.

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I know I got that you think they can't do this, but when you keep saying they have something different from every other jurisdiction, that by itself does not indict it, given its unique needs and concerns here.

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Right, Your Honor, but there's a floor, and that's what the Heller v. D.C.

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case by the Supreme Court held.

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The District made the same arguments that it made here about its unique character.

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And as a matter of fact, the Supreme Court invalidated the handgun ban.

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And it simply said this is not, well, it didn't do intermediate scrutiny.

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It did it as a matter of law.

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But there's no narrow tailoring here.

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There's just a disconnect completely between requiring law-abiding citizens to register guns, people who wouldn't misuse guns, whether they will register or not, and the requirements

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that exist in terms of, like a potential assassin, for example, would not be dissuaded in any way by a registration requirement.

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So throughout all the DC provisions, there's just a disconnect.

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They made a list of reasons why they think registration is necessary and the most critical reason that they

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set forth was officers can conduct checks to see whether there might be a gun on the scene when they go on a call.

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And it turns out that that was just a made up reason.

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It did not exist.

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The MPD does not do that.

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The other reasons that they gave in their list were things like, that way you can arrest people for unregistered guns, and this court held that that was just basically a duplicate of argument, that it didn't have any meaning.

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It was self-defining.

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you could arrest people if they have an unregistered gun that would serve no law enforcement purpose.

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In fact, the only law enforcement... Let me ask you about that, because it's been suggested that by requiring, as you said, if registration is required, only law-abiding citizens will register their guns, right?

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Yes, Your Honor.

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So if somebody then, if the police stops somebody, perhaps in a vehicle, and there's an unregistered gun,

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doesn't that suggest that they may not be a law-abiding citizen and have some reason for not having registered their gun that is just as well interdicted before they commit a crime?

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Your Honor, for lawyers of practice in the D.C.

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Superior Court, it's well known that most of the people arrested for unregistered guns are basically law-abiding people who didn't know about it.

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There are people passing through town.

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They're not criminals.

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The District suggests in their briefs that people who have unregistered guns are likely to be trafficking them or to be involved in robberies or things like that.

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It's totally unrealistic.

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No other jurisdiction nationwide requires all guns to be registered, except for the state of Hawaii.

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And just to simply find... Do you have any data about the Superior Court?

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Pardon?

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Do you have any data about what you just said?

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Your Honor, we don't have data about that.

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There's no data either.

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Well, there is a lot of data in the record.

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about the lack of criminal activity by persons with registered guns.

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There's also data that long guns, for example, are virtually never, ever used in crimes, whether registered or unregistered.

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There were, I think, three homicides out of 383 homicides.

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over a three-year period committed with long guns.

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98 some crimes were committed with hands or feet or with blunt instruments or sharp objects.

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So as this court held in the original opinion, long gun registration is novel, it's not historical, and there's no justification that's been set forth.

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I mean, Judge Millett's question about the unique characteristics of the district

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A person who would misuse a long gun would not be a person who would be dissuaded in any way by a registration law.

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And so there's just been no connection shown between long gun registration, the cancellation of registrations every three years.

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Last time around, we said that registration is not a significant burden.

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Handgun registration for certain simple facts and not the novel requirements that were involved in handgun registration.

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So we remanded it with respect, leaving open the question with respect to long guns.

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Yes, Your Honor.

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The district now comes in and says, well, look, if it wasn't burdensome to register handguns, it's not burdensome to register long guns.

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The district judge agreed with that.

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What's wrong with that civil judgment?

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Your Honor, we're talking about an exercise of a constitutional right.

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This is not a requirement for people who want to carry a gun on the street, a concealed weapon.

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This is basic keeping of a firearm in your own home, the basic Second Amendment right.

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And to require registration, the record does reflect the burdens in terms of hours and expense.

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There's also the fact that the rear is different for long guns than for handguns.

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There's no different requirements for either one.

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The burdens are the same.

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Right.

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And aren't we committed to the proposition that those burdens are not a significant imposition or burden on the Second Amendment right?

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For purposes of handguns, which have always been regulated much more tightly than long guns, and that was the point of the prior decision.

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Just in terms of the doctrinal framework, I'm trying to see where's your opening once we've said well the registration requirements for handguns are not burdensome for Second Amendment purposes, so de minimis.

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How do you get past that when you turn to long guns?

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If the registration is de minimis, it's de minimis, right?

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That's what this is in terms of.

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Right, and this court made no finding that it was de minimis for long guns.

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The court said that would be a question of remand.

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I understand that, but now it turns out that the registration requirements are exactly the same.

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They're the same.

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I mean, that was known before, but in terms of the object being regulated,

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we would make that distinction that there's more, this court found there was more justification for registering handguns and for requiring the burdens that do exist, and there's less justification on long guns.

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This court said it might as well have been written in invisible ink in terms of justification for that.

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And we think you can distinguish between the burdens required for something that has more risk versus the same burden that might be required for something that has virtually no risk, and particularly where there's been no.

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So you're saying we can take account of.

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the risk in asking the threshold question of whether this is a burden, a significant burden.

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Yes, Your Honor.

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Instead of, as the framework seemed to suggest, first you have to get past the, you have to determine that it's a significant burden and then determine whether it's justified by the risk.

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The burden is the same and the reason for the burden is a lot less in regard to long guns and I think that's what we got out of the first opinion and I think that's still the case now.

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That it's a burden that

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In terms of lost employment, expense, there's a number of things.

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It's not a burden that's imposed anywhere else in the country.

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And for that reason, we think that it just doesn't meet the requirement of narrow tailoring.

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There's been no justification for it in terms of, if we look at rule of evidence 702, for example, the witnesses for the district just say it's a good idea.

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If they require registration of handguns, it's a good idea to register long guns.

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What if they said they just, again, given the unique needs of DC, we just want to know who owns, you know, when we're designing a prairie route, we want to know, or a travel route for a motorcade, we just want to know what buildings we're going by that have long guns in them.

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Well, the district never set forth that as a justification for this.

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It is.

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It's in the report.

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It's in the report.

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And in fact, one could assume that in any residence, there could be a gun.

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And as a matter of fact, that the kind of people who... Well, they gave that justification, which I found from the report.

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I'm not smart enough to think of this stuff myself.

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But that was in their report.

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Would that be a justification that would then

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trigger the ability to put on a de minimis burden?

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It would not be a justification, because the kind of people who would actually misuse a gun would not register the gun.

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But that same argument could have been applied with the handgun registration.

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That's no different, because we started with the basic registration for handguns, bound by prior precedent.

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and the argument that criminals won't do it anyhow was rejected there and that wouldn't be any different here with respect to long guns.

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I thought your argument with respect to long guns was

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Maybe the burden's no different, but the justification is absolute.

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You've got to have something to make us go.

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You know, something outweighs nothing every time.

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And if you've got no justification, you can't make us even do a de minimis registration of a perfect guy justification.

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As this court said before, that registration of long guns is novel, not historic.

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And when we do the calculus, intermediate scrutiny,

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We don't just look at firearm, I mean, handgun registration.

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This court held to be long standing in terms of the restrictions.

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And to make a hypothetical that somehow the police would know where an assassin was in a building because a motorcade might be going by and to fantasize that a registration record would get any information for that.

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It's just not something that would justify this law.

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And then on the registration, you distinguish between, I guess, ordinary registration and additional aspects of registration that D.C.

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imposes.

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Is that right?

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Well, there's this court called novel provisions.

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Yes, Your Honor.

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Right.

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And I guess I have a couple steps.

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Can you please break down for me exactly what you think is routine registration and what is novel?

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And then, can you tell me, do we look at registration, do we look at their package as a whole, or do we look at it piece by piece and analyze it?

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And if it's a latter, do we have to do some sort of severability argument?

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I'm sorry, it's a three-part question.

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I think the Court should do both, because I think, first of all, long-gun registration, as the Court said before, might be unjustified.

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But then if that's upheld,

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Things like canceling your registration every three years is a significant burden.

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It could leave you in a criminal status.

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Things like taking the gun to the DC police department where you're taking it on the street and you're taking chances of being robbed or maybe being mistaken by a person who is up to no good and being arrested or worse.

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That would be harder for long guns than handguns, I should take it, right?

[00:19:30] Speaker 03:
Trying to get it to the police station?

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Getting it to the police station, but also once you're there and you tell the police you have a gun.

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I mean, there's been police stations that have been bad guys that have come in and started shooting.

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And to require that you suddenly appear with either a handgun or a long gun.

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And if it's a long gun, the case will be recognized.

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This is a significant risk and a burden, and the district didn't do anything to show any justification for it.

[00:19:57] Speaker 03:
I'm trying to understand, so you're saying that at least that aspect of registration is more on a risk for long guns than for hand guns, or it's essentially the same problem?

[00:20:04] Speaker 03:
You're showing up at police stations with a gun.

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It's the same problem in terms of if you're caught with a gun, you might spend two nights in the DC jail.

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Or if you go by a gun-free zone, you're subject to 10 years incarceration.

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So we think the court should look both at

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Long gun registration as a whole, we think, is novel, not historic, and should be invalidated.

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But if it's upheld, there are certain provisions here that we've pointed out that there's been no showing of narrow tailoring.

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There's been no justification, whatever, for some of these provisions.

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Another example would be the prohibition on registering more than one handgun within a 30-day period.

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One of our plaintiffs wanted to register two handguns within a 30-day period.

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And there's been no showing that the district tried to argue this would facilitate gun trafficking, but Chief Lanier testified it would be highly unlikely any gun trafficker would ever go there, would ever register a gun, register multiple guns and then traffic them.

[00:21:01] Speaker 03:
I'm sure which plaintiff was it that tried to register too?

[00:21:03] Speaker 06:
Yes.

[00:21:04] Speaker 03:
Which one?

[00:21:04] Speaker 06:
That would be Axlon Jordan.

[00:21:08] Speaker 03:
And can I go back to the registration taking the guns to the police station?

[00:21:15] Speaker 03:
So I read the statute.

[00:21:16] Speaker 03:
It said that may be required.

[00:21:18] Speaker 03:
Yes, Your Honor.

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It didn't mandate it.

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And then I just didn't see, are there regulations?

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How does someone know whether they have to fulfill that or not?

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Is there anything in the record?

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I was confused about that.

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I didn't see regulations or anything saying who does when, other than I thought there was something that sort of said

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They're worried about how it operates.

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It didn't make sense to me.

[00:21:38] Speaker 06:
All of our plans, except one, had to do that.

[00:21:41] Speaker 06:
And the district council can correct me if I'm wrong, but I think the status is that if you move here with a gun and you want to register it, that it's required.

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And otherwise, if you purchase it through a dealer, like there's one DC dealer, then it's not required.

[00:22:00] Speaker 06:
But my council can correct me on that if that's not correct.

[00:22:05] Speaker 03:
And how many handguns in D.C.

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are purchased through that deal?

[00:22:07] Speaker 03:
Do you mean the people who sort of transfer them through it or actually just initially purchased through it?

[00:22:11] Speaker 06:
People who move here from out of state.

[00:22:13] Speaker 06:
Those would be the ones, as my understanding, who would have to take them to D.C.

[00:22:18] Speaker 03:
What about people who live here but have their guns stored outside the state and want to move them into D.C.?

[00:22:22] Speaker 06:
They would have to do the same.

[00:22:24] Speaker 06:
They would have to bring them to the MPD headquarters.

[00:22:30] Speaker 05:
There was a reference to some 900 and some applications, I think, in one year.

[00:22:36] Speaker 05:
Is that probably right?

[00:22:38] Speaker 05:
How many people have applied or have registered or sought to register guns?

[00:22:42] Speaker 06:
Your Honor, I don't have the data right at hand.

[00:22:44] Speaker 06:
It's in the record.

[00:22:46] Speaker 06:
There are hundreds or thousands who have registered.

[00:22:50] Speaker 06:
There's data in the record on long guns versus handguns.

[00:22:55] Speaker 06:
There's virtually no one gets turned down for registration because they're all law-abiding people coming forward.

[00:23:01] Speaker 06:
But the figure you state would not be out of the ballpark.

[00:23:05] Speaker 05:
The registration requirements have changed, I think.

[00:23:07] Speaker 05:
Well, you tell me, I think Heller 2 was decided in August of 2011.

[00:23:13] Speaker 06:
Yes, Your Honor.

[00:23:14] Speaker 05:
And it appears the regulations for registration changed the fact of January 1, 2011.

[00:23:22] Speaker 06:
Well, the last amendments were in 2012, the Farm Amendments Act.

[00:23:28] Speaker 06:
There were several temporary and permanent provisions that kept changing from the 2008 provision that was here before.

[00:23:35] Speaker 05:
At least one thing seems to have changed in the direction of being less onerous than it was when we had the case here before, and that was the amount of training and safety instruction required.

[00:23:46] Speaker 06:
Your Honor, there's still some training that's required.

[00:23:50] Speaker 06:
There's still a test requirement.

[00:23:54] Speaker 06:
Previously, the district said you had to go get training from some private individual, and they gave you this list, and they didn't vet these people.

[00:24:01] Speaker 06:
So that's changed, and it seems to be less on the wrist.

[00:24:04] Speaker 06:
That part is, yes, Your Honor.

[00:24:05] Speaker 05:
Is there any other changes material to the case?

[00:24:07] Speaker 06:
The so-called ballistic test, where you bring the gun to police headquarters, and they take a sample of the casing.

[00:24:14] Speaker 06:
But in terms of bringing it to headquarters, that's still there for the people that we've talked about, so that would not have changed.

[00:24:21] Speaker 06:
Whether they took the ballistic test or not would be kind of immaterial.

[00:24:24] Speaker 05:
Okay, so those changes eventually have all been in the direction of lessening the burden.

[00:24:29] Speaker 06:
They have, Your Honor.

[00:24:30] Speaker 05:
Anything that's increased since the case was... Nothing's increased.

[00:24:33] Speaker 06:
I mean, the main thing that's so different than everywhere else is the long gun registration and the cancellation of registrations.

[00:24:40] Speaker 05:
Right.

[00:24:40] Speaker 05:
Right.

[00:24:41] Speaker 05:
You need the three-year limit.

[00:24:43] Speaker 05:
Yes, Your Honor, that's correct.

[00:24:46] Speaker 03:
And looking at the registration, can, just as a matter of law, do we have to take their registration package as a whole, or do we have the capacity to say name and address okay, bring it to the station not okay?

[00:25:02] Speaker 06:
The latter, Your Honor.

[00:25:03] Speaker 03:
as a matter of severability analysis?

[00:25:05] Speaker 06:
Normally, you know, legislatures write laws and then we... We have an argued non-severability, and in fact, if it was no longer required that you bring the gun to the station, no longer required that the registration gets cancelled every three years, that wouldn't affect the overall scheme.

[00:25:22] Speaker 06:
So we've not made the argument.

[00:25:24] Speaker 03:
Is there a severability clause anywhere in the law, or how do we know that?

[00:25:28] Speaker 03:
that they would have wanted it all or nothing or they would be okay with splitting it up into pieces.

[00:25:33] Speaker 06:
I'm just doing that in terms of the logic of if you have a basic registration scheme like this court upheld before for handguns, and you have these novel provisions that are very unusual for any jurisdiction that would have registration, I believe there is a severability clause, but on the other hand, we've not made an argument that

[00:25:55] Speaker 06:
by throwing out some of those novel provisions that would invalidate the other provisions.

[00:25:59] Speaker 06:
By the same token, if long gun registration was not upheld, this court has already upheld basic handgun registration, and we've not made an argument that would be a severability issue.

[00:26:12] Speaker 03:
Do you object to the photograph with the registration?

[00:26:14] Speaker 03:
Because I think that was required before for licensing, which wasn't challenged.

[00:26:19] Speaker 06:
Well, what we object to is the following.

[00:26:22] Speaker 06:
The National Criminal Incident Background Check System, it's a federal law that exists in every state.

[00:26:28] Speaker 06:
You buy a gun, you show government-issued photograph already, you identify yourself.

[00:26:34] Speaker 06:
There's a background check that goes through the FBI's NCIC IIII, and then there's a NICS index.

[00:26:41] Speaker 06:
It's the most comprehensive background check nationwide.

[00:26:44] Speaker 06:
And once you've done all of that, it simply duplicates matters to make you come into the district police headquarters and get photographed and fingerprinted there.

[00:26:53] Speaker 06:
So our contention is if we're looking at narrow tailoring... The photograph itself so that you have a photograph on your registration certificate so when the...

[00:27:02] Speaker 03:
The police are somewhere and need to see your registration certificate.

[00:27:05] Speaker 03:
They can see right away that it's you that is registered to have that hand done.

[00:27:09] Speaker 03:
But just the photograph.

[00:27:10] Speaker 03:
I don't want to talk about the other aspects of it.

[00:27:12] Speaker 06:
The photograph is something new.

[00:27:14] Speaker 06:
DC had registration starting in 1969 and never had a photograph.

[00:27:18] Speaker 03:
But the old licensing requirement, the Supreme Court said you weren't objecting to when Heller 1 included a photograph requirement.

[00:27:27] Speaker 03:
So I'm trying to figure out why it's different if it's a licensed photograph versus a registration photograph.

[00:27:32] Speaker 06:
There was a separate law that you needed a license to carry a gun even in your own home.

[00:27:38] Speaker 06:
I think the district now exempts that from the licensing requirement.

[00:27:42] Speaker 06:
I don't think that law is in place anymore.

[00:27:45] Speaker 06:
But you didn't object to the photograph itself.

[00:27:48] Speaker 06:
Well, Your Honor, I wasn't counsel in that case.

[00:27:51] Speaker 06:
I didn't object to anything in that case.

[00:27:55] Speaker 06:
So.

[00:27:58] Speaker 05:
Mr. Hultberg, in Heller 2, I think we analogized the, in thinking about the burden, we analogized the registration process to that required for getting a driver's license.

[00:28:11] Speaker 05:
So with the changes now that have occurred, what greater burden is there, what elements of this scheme are there for guns that would not be applicable also for a driver's license?

[00:28:29] Speaker 05:
And that is a photograph, obviously.

[00:28:31] Speaker 06:
Yes, Your Honor.

[00:28:33] Speaker 06:
And our position on that is you don't need a driver's license just to keep a car in a garage in your own home without driving it.

[00:28:40] Speaker 06:
In terms of traditional gun regulations, most places need a permit to carry a gun concealed outside of the home.

[00:28:49] Speaker 06:
And so the distinction is there.

[00:28:51] Speaker 06:
The burden would not be that different.

[00:28:53] Speaker 06:
But in terms of narrow tailoring, nexus, tight fit, all of that between merely exercising the basic right to keep a gun in your own home versus carrying it,

[00:29:05] Speaker 06:
Generally speaking, nationwide, you need a permit to carry a gun.

[00:29:09] Speaker 06:
You do not need a permit to keep a gun in your home.

[00:29:11] Speaker 06:
And it's the same with an automobile.

[00:29:12] Speaker 06:
You do not need a permit.

[00:29:14] Speaker 06:
It's not a crime to own a car without a driver's license.

[00:29:18] Speaker 06:
You just can't drive it.

[00:29:22] Speaker 05:
Right.

[00:29:22] Speaker 05:
Okay.

[00:29:23] Speaker 05:
I take that point, but I'm still looking into, in terms of measuring burden, I'm still trying to see, my question's unanswered.

[00:29:31] Speaker 05:
What is the difference in the registration processes?

[00:29:34] Speaker 06:
We would concede, in terms of the time one would take or the fact that you take a test and so forth, that the burden is not that different.

[00:29:43] Speaker 05:
Is there fingerprinting for a driver's license in the district?

[00:29:45] Speaker 06:
Not that I know of, but I'm not familiar with that.

[00:29:49] Speaker 06:
The previous opinion also compared the registration to voting registration, firearm registration to voting registration.

[00:29:57] Speaker 06:
These are different concepts.

[00:29:58] Speaker 06:
I mean, with voting registration, you'd never allow a poll tax.

[00:30:02] Speaker 06:
And we have equivalent to that here.

[00:30:04] Speaker 06:
You would never allow a literacy test.

[00:30:07] Speaker 06:
And we have testing here.

[00:30:10] Speaker 06:
So sometimes these comparisons just aren't exact.

[00:30:14] Speaker 06:
But in terms of burdens, in some cases, the burden might not be that different.

[00:30:19] Speaker 03:
On the car and the driveway, though, I take it that your clients don't just want the gun.

[00:30:25] Speaker 03:
But they actually want the ability to use it if needed for self-defense in their home?

[00:30:29] Speaker 06:
In their own home, yes, Your Honor.

[00:30:31] Speaker 03:
So it's not like a gun that's just sitting there.

[00:30:32] Speaker 03:
They actually do plan to use the guns if needed, or they want to be in a position to use the guns if needed, even in their homes.

[00:30:40] Speaker 06:
I mean, people would keep guns for many different purposes for self-defense.

[00:30:45] Speaker 03:
This is a facial challenge, I take it.

[00:30:46] Speaker 03:
Some of your clients, if not all of them, would like the ability to use these guns if needed.

[00:30:52] Speaker 03:
Hopefully no one ever has to, but if needed for self-defense.

[00:30:57] Speaker 06:
Certainly all of them would be in that category.

[00:30:59] Speaker 06:
There may be others who would keep guns for hunting or for target feeding or whatever outside the district.

[00:31:06] Speaker 05:
Is there anything in the ordinance, the statute, that says this is a license to keep the gun in your home only?

[00:31:17] Speaker 05:
It seems to me there was an expensive provision about transportation.

[00:31:21] Speaker 06:
You can take it outside the district to a place where it would be lawful to use it.

[00:31:25] Speaker 06:
If you have a shotgun, you can shoot, trap, and skeet in Prince George's County.

[00:31:29] Speaker 06:
And there's rules for how it has to be transported, inaccessible in a trunk, unloaded, and so forth.

[00:31:36] Speaker 06:
So you can keep it in your home and you can transport it, and that's all.

[00:31:40] Speaker 05:
You couldn't take it to your place of business?

[00:31:45] Speaker 06:
Your Honor, actually it was a pre-existing law that a registered gun could be kept in a place of business.

[00:31:51] Speaker 06:
And I'm not aware that that has changed in any way.

[00:31:54] Speaker 05:
So as far as you know, that's going on?

[00:31:55] Speaker 06:
Yes, Your Honor.

[00:31:56] Speaker 03:
Do some of your clients want to be able to transport their guns, or I don't think want to take them to their business or not, but want to be able to transport them?

[00:32:05] Speaker 03:
Nobody here that just wants a gun in the house just to lay around in the house?

[00:32:10] Speaker 06:
Primarily that would be the case, but Mr. Scott, one of the plaintiffs, owns long guns that one could use for hunting or for target shooting that would be done outside the District of Columbia.

[00:32:21] Speaker 06:
It's not in the record necessarily that they would be used for that purpose, but one could surmise.

[00:32:31] Speaker 02:
All right.

[00:32:32] Speaker 02:
We'll give you a couple minutes to reply.

[00:32:33] Speaker 02:
Thank you, Your Honor.

[00:32:44] Speaker 00:
Good morning and may it please the Court, Lauren Ollicon for the District of Columbia.

[00:32:48] Speaker 00:
The Second Amendment does not prevent legislatures from enacting gun laws, like those at issue here, that further important public safety interests without meaningfully burdening individual self-defense.

[00:32:58] Speaker 00:
When this Court remanded the registration requirements in Heller 2 for further consideration, it held that they would pass muster under intermediate scrutiny if they were substantially related to an important governmental objective.

[00:33:08] Speaker 00:
On demand, the district established two governmental interests, protecting police officers and promoting public safety.

[00:33:14] Speaker 00:
Plaintiffs cannot and do not challenge the legitimacy of those interests.

[00:33:18] Speaker 05:
And as a district... Will they challenge whether, as a factual matter, whether this is used to protect police officers?

[00:33:24] Speaker 00:
They challenge one aspect of whether or not this protects police officers.

[00:33:29] Speaker 00:
And they say that it was a central focus of the record, but it was not.

[00:33:32] Speaker 00:
In both the 2008 and 2012 legislative records, the council enumerated several reasons.

[00:33:37] Speaker 00:
And this is at JA 12425 and 2008 report and 163 through 166 in the 2012 report.

[00:33:43] Speaker 00:
And they involved things like

[00:33:45] Speaker 00:
Registration requirements facilitate the return of lost or stolen firearms to the rightful owners.

[00:33:50] Speaker 00:
They assist law enforcement in determining whether a registered owner has become ineligible to possess a firearm.

[00:33:55] Speaker 00:
And yes, one of these reasons was that it allows officers to determine in advance whether individuals involved in a call have access to a firearm.

[00:34:03] Speaker 05:
That's the way it seems to be without any significant empirical support.

[00:34:09] Speaker 05:
It's just not used that way.

[00:34:10] Speaker 00:
I take issue with that respectfully.

[00:34:13] Speaker 00:
So there was testimony in the record from Lieutenant Shelton that there were instances in which MPD officers did check to determine whether or not one had a gun in the home before responding to a call.

[00:34:22] Speaker 00:
But even if that never happened, that still doesn't detract from the interest in promoting public safety.

[00:34:27] Speaker 00:
And there are innumerable benefits to public safety through a registration scheme.

[00:34:32] Speaker 00:
So absolutely, this court can uphold the registration scheme purely on promoting public safety, but we also think that there is a sufficient justification for protecting police officers.

[00:34:42] Speaker 03:
I'm just trying to figure out, it seems like in almost any case where you're challenging firearm regulations,

[00:34:52] Speaker 03:
the government's going to have, it's going to win the interest side of the balance because they're always going to be able to say public safety, health and safety, law enforcement safety, and that these fights are always going to be about tailoring.

[00:35:09] Speaker 03:
Does the means justify the end?

[00:35:13] Speaker 03:
In particular, are you impinging, infringing on more than is necessary to accomplish those goals?

[00:35:22] Speaker 03:
And in this case, it seemed like

[00:35:24] Speaker 03:
With respect to some things, there's virtually nothing in the record.

[00:35:27] Speaker 03:
Or the district court was helping you out with things.

[00:35:30] Speaker 03:
It was relying on common sense and filling in a lot of gaps.

[00:35:34] Speaker 03:
There were a lot of disputes, I thought, about how exactly this would or would not advance an interest.

[00:35:42] Speaker 03:
And I'm just wondering why summary of judgment would be appropriate.

[00:35:46] Speaker 03:
It didn't seem like the district court was taking the record in the light most favorable to the plaintiffs in making these determinations.

[00:35:52] Speaker 03:
So what do I do with that?

[00:35:54] Speaker 00:
So I heard a lot of questions within that question, and so I have a few answers, if you'll permit me.

[00:35:59] Speaker 00:
First, yes, we have the interests on one side.

[00:36:02] Speaker 00:
And the question is that of narrow tailoring.

[00:36:03] Speaker 00:
And so this court in Heller 2 found that it wasn't strict scrutiny that would be applied, but intermediate scrutiny.

[00:36:09] Speaker 00:
And under intermediate scrutiny, the registration requirements need to be narrowly tailored to achieve the government interests.

[00:36:14] Speaker 00:
But what that means in the context of intermediate scrutiny is that the regulations serve aims of protecting police officers and promoting public safety.

[00:36:22] Speaker 00:
in a manner that would be achieved less effectively without the registration requirements.

[00:36:25] Speaker 03:
So you're not burdening more than necessary to accomplish that.

[00:36:31] Speaker 03:
I mean, there's supposed to be one intermediate scrutiny for all different kinds of constitutional rights and so that you don't want to water it down.

[00:36:41] Speaker 00:
And that was that it doesn't need to be the least restrictive means.

[00:36:43] Speaker 00:
That's a strict scrutiny test.

[00:36:44] Speaker 00:
But it needs to be a relationship between the interests and the ends.

[00:36:48] Speaker 00:
And so now I think to get at the meat of your question, we can turn to each of what I see as the five registration requirements at issue.

[00:36:54] Speaker 00:
I think first we can start with the registration requirement for long guns specifically.

[00:36:58] Speaker 00:
And this court can uphold that on two separate grounds.

[00:37:01] Speaker 00:
The first, as this court suggested in a footnote in Heller 2, and as the district court found when it dug into this, there's no second amendment right that's burdened in the general requirement that long guns be registered.

[00:37:11] Speaker 00:
And that is because the registration requirement for long guns is identical to the registration requirement for handguns, which this court previously found in Heller 2.

[00:37:18] Speaker 00:
But is the justification the same?

[00:37:20] Speaker 00:
Does that matter?

[00:37:22] Speaker 00:
It doesn't matter if you're determining whether or not the Second Amendment interest is burdened.

[00:37:26] Speaker 00:
If we are looking into intermediate scrutiny and determining how the interests are weighed, there was significant and ample evidence in the record about registration of long guns specifically and the harms that long guns caused.

[00:37:37] Speaker 00:
So we have, first, in the 2012 report, this is JA 177-79, an extensive discussion by the council about the unique nature of the district and its susceptibility to violence by long guns.

[00:37:50] Speaker 00:
So targeting of motorcades, the Holocaust shooting, the South Capitol Street shooting.

[00:37:54] Speaker 00:
There are numerous events in the district's recent history where long guns were used to perpetuate crimes.

[00:37:59] Speaker 00:
Are you sure that's not happening here?

[00:38:01] Speaker 03:
Is there any showing that there aren't the same

[00:38:04] Speaker 03:
use of handguns in other jurisdictions, or I'm sorry, long guns in other jurisdictions?

[00:38:08] Speaker 00:
Are the statistics different?

[00:38:10] Speaker 00:
Well, the statistics in terms of the rate of death of long guns, I think, are not particularly different.

[00:38:16] Speaker 00:
As Mr. Helberg cites, there were three deaths with long guns.

[00:38:18] Speaker 00:
Out of everything, there's 350-some.

[00:38:20] Speaker 00:
On the national rate, it's about 4,000 deaths.

[00:38:22] Speaker 00:
And so the district can rely on its own experience as the situs of government to have particular concerns about motorcades, political assassinations,

[00:38:29] Speaker 00:
things like that but the district can also rely on the fact that long gun violence does cause 4,000 deaths nationally and so that information would allow the council to determine the registration requirement for long guns is important.

[00:38:42] Speaker 05:
You're going to have in addition if you want to sit on this particular point stand on this particular point which I think you're going to have to connect

[00:38:52] Speaker 05:
potential assassins to the probability that they will register their guns.

[00:39:01] Speaker 00:
Absolutely.

[00:39:01] Speaker 00:
Thank you for talking about that, Judge Ginsburg.

[00:39:04] Speaker 00:
This notion that only law-abiding citizens register guns is red herring.

[00:39:08] Speaker 00:
Under that theory, municipalities would be limited from enacting only those firearms laws that everybody would abide by, and that's certainly not the case.

[00:39:15] Speaker 00:
Also, there are other benefits through registration requirements for long guns.

[00:39:20] Speaker 05:
That's fine, but tell me why you would expect the problem of

[00:39:24] Speaker 05:
political assassination to be mitigated to any degree by the registration requirement for long guns.

[00:39:31] Speaker 00:
Well, I would point to the council record, the 2012 record, where they found that it allowed police to determine before motorcades went through who had weapons.

[00:39:39] Speaker 00:
And it also just allows district officers to know generally how many long guns are in the district.

[00:39:43] Speaker 03:
Is there evidence in the record that they actually do check the registrations to see if somebody in the building has a long gun?

[00:39:49] Speaker 03:
Or even a handgun before they set motorcades?

[00:39:51] Speaker 00:
The only evidence in the record about

[00:39:54] Speaker 00:
The checks that were conducted by MPD was Lieutenant Shelton's testimony, and I don't believe that he differentiated between long guns and hand guns.

[00:40:01] Speaker 03:
It was just whether or not police officers... But they did it before they set motorcade routes.

[00:40:04] Speaker 03:
They check these things and make motorcade routes based on that?

[00:40:07] Speaker 00:
I don't believe that there was any evidence in the record, but the mere fact that the executive does not choose to employ a particular means that they are authorized to do by the legislature does not detract from the fact that the council had good reason to empower the executive branch to undertake those checks should they think it necessary.

[00:40:21] Speaker 05:
That's a bit of tension with Mayor O'Taylor.

[00:40:24] Speaker 00:
I don't believe so.

[00:40:26] Speaker 00:
I mean, the Constitution permits a wide range of policy choices, and so the Council here was allowed to... Well, is it narrow or is it wide?

[00:40:33] Speaker 05:
I mean, I thought the word was narrow.

[00:40:35] Speaker 00:
Well, it's narrow-tailing, but it's not the least restrictive alternative.

[00:40:38] Speaker 00:
I understand that.

[00:40:39] Speaker 03:
And so here... If it's really in important enough interest, you think you all would do it.

[00:40:44] Speaker 03:
But the fact that you don't do it either suggests that this isn't something that's that important to you all, or that you think this is helpful in that, I mean, it's clearly an important interest to protect all lives.

[00:40:56] Speaker 00:
Well, I don't think there was any evidence in the record one way or the other.

[00:40:59] Speaker 00:
The record was silent on this.

[00:41:00] Speaker 00:
So this was a justification that the council had, but it was one among many.

[00:41:03] Speaker 05:
And if you look at the testimony from- But on this one, what you're saying is no more than that there's a rational relationship.

[00:41:08] Speaker 00:
That's about as much as- I'm not at all saying that there's a rational relationship.

[00:41:11] Speaker 00:
I'm saying that there is a substantial interest that is being furthered.

[00:41:14] Speaker 00:
Chief of Police Lanier did testify about what MPD's policies are, and she testified, I believe, that the type of firearm is largely irrelevant for purposes of registration, and that all firearms pose a threat to the public, and therefore all firearms should be registered similarly.

[00:41:31] Speaker 00:
You also have Lanier herself testifying, and this is at JA 396 and 97, about how long guns are more dangerous.

[00:41:38] Speaker 00:
A handgun requirement, a registration requirement, it doesn't impose burdens on the Constitution then, as well a long gun requirement.

[00:41:47] Speaker 00:
Now, if I can turn next to the requirements of a background check, fingerprinting, things like that, plaintiffs don't take issue or argue that background checks themselves are unconstitutional.

[00:41:57] Speaker 00:
They just would prefer one form of a check over another.

[00:41:59] Speaker 00:
They want this NICS check, which is the National Instant Criminal Background Check, over the local checks that the district conducts.

[00:42:07] Speaker 00:
But there was extensive testimony that local checks are actually more effective

[00:42:12] Speaker 00:
and jurisdictions that have local checks have lower rates of gun violence than ones that just rely solely on the national standards.

[00:42:21] Speaker 00:
Also there was, with regard to fingerprinting and photographing specifically, there was information in the record that fingerprinting is what allows a district to conduct a more comprehensive local check than the national check.

[00:42:32] Speaker 00:
The national NICS check is based on things like name, birth date, social security number.

[00:42:36] Speaker 00:
data that can be forged if someone wants to, whereas fingerprints are not as easily forged.

[00:42:40] Speaker 00:
Once you run those through the system, it checks a variety of law enforcement databases, it checks superior court dockets, and it ensures that an individual who is trying to register a weapon has not become ineligible to do so.

[00:42:51] Speaker 00:
And so the fingerprints allow the districts to undertake this more comprehensive check that they can then ensure that only individuals who are law-abiding citizens who are eligible to own weapons can register those weapons.

[00:43:04] Speaker 00:
The GAO also had a report that was relied upon, I believe this is JA 415, it was Webster's testimony, relying on the GAO's report that the use of fingerprints prevents things like prospective purchasers from broadening the office and trying to register weapons when they're not allowed to do so.

[00:43:23] Speaker 00:
Next, if we could turn to the, I guess actually it was staying on this broad swath of registration requirements about bringing the firearm to a BDHU register.

[00:43:34] Speaker 00:
My understanding of the way that it works is consistent with Mr. Halbrook's, that if you are buying a weapon through a federally licensed dealer and therefore you have a third party that's verifying what that weapon is, there's no need to bring in the weapon.

[00:43:46] Speaker 00:
But if you are bringing in a weapon that has not been the AR-24 had its

[00:43:51] Speaker 00:
credentials checked out by the district, then you may be required to bring that weapon in for an NPD officer to look at it.

[00:43:57] Speaker 03:
What do you mean, credentials checked out by the district?

[00:43:59] Speaker 00:
Well, so if it comes from a federally licensed dealer, you know, the district can trust that the federally licensed dealer is representing the gun to be the Megan model that... When they register, do they have to give you... When they register, do they have to give a serial number for the gun?

[00:44:12] Speaker 03:
I believe they do, but bringing in the weapon to the MPD... And is the serial number like a VIN number in a car?

[00:44:18] Speaker 00:
It will actually identify, I assume, precisely what make model year... Absolutely, but the only way that MPD can ensure that that serial number has not been forged, that someone's not providing a false one, is to bring the weapon in.

[00:44:29] Speaker 03:
Why on earth would somebody register

[00:44:32] Speaker 03:
I mean they accomplish nothing at that point.

[00:44:36] Speaker 03:
They haven't complied with registration requirements.

[00:44:38] Speaker 03:
If you're not going to do it, if you're going to violate the law, just don't come in at all.

[00:44:42] Speaker 03:
Do you have any evidence that anyone has ever tried to register a gun falsely?

[00:44:48] Speaker 00:
evidence, and albeit this was FBI sting operations that Webster alluded to, but also gun dealers themselves are not necessarily trained to look at false ID documents.

[00:44:58] Speaker 00:
So if you purchase a gun... I'm not talking about a false person.

[00:45:00] Speaker 03:
I'm talking about someone's come in, they're doing their fingerprints, they're getting the photograph taken, but ah, I'm going to give you the wrong serial number, so I'll register the handgun and not the long gun.

[00:45:11] Speaker 03:
What have they possibly accomplished at that point?

[00:45:15] Speaker 00:
Certainly I have nothing to point to in the record other than Webster's expert testimony on this, but it also prevents mistakes.

[00:45:21] Speaker 00:
And Webster says what?

[00:45:22] Speaker 00:
So if someone poses a serial number, then NPD can verify that it is precisely the weapon.

[00:45:26] Speaker 00:
NPD can also then assure that... I'm sorry, I really don't understand this thing.

[00:45:30] Speaker 00:
So if someone writes down on their application a serial number, and they write down the wrong application, or they write down the wrong serial number, NPD then can check the weapon against what's on the application and correct mistakes.

[00:45:41] Speaker 00:
Also, when MPD looks at the weapon... Is there any evidence that's happened?

[00:45:43] Speaker 03:
I'm really trying to ask, you all had a burden here to show a purpose for doing this and I'm having trouble understanding that.

[00:45:51] Speaker 03:
What evidence is there in the record that this is a real problem?

[00:45:54] Speaker 03:
I mean, you can bring guns in and clerks can write down wrong numbers too.

[00:45:57] Speaker 03:
So what exactly evidence is that this is a problem you need this aspect for?

[00:46:01] Speaker 00:
The district was not required to show that there was a rampant problem or wait until there is a rampant problem to take measures to prevent these problems from occurring.

[00:46:10] Speaker 03:
Is there any problem?

[00:46:11] Speaker 03:
Is there one problem?

[00:46:13] Speaker 03:
Not a rampant one.

[00:46:13] Speaker 03:
Was there one time it went bad?

[00:46:16] Speaker 00:
I don't believe there's anything in the record about a particular instance of a serial number being forged.

[00:46:21] Speaker 00:
No, there's not.

[00:46:22] Speaker 00:
I don't have that.

[00:46:23] Speaker 00:
But NPD can put its eyes on the weapon and make sure it hasn't been adult or changed in some way, that it hasn't become a solid-off shotgun, that it has been...

[00:46:32] Speaker 00:
that it is the weapon that it is represented to be.

[00:46:35] Speaker 00:
And so I think that also another important point is that this isn't a requirement.

[00:46:40] Speaker 00:
This is discretionary.

[00:46:40] Speaker 00:
MPD may require the individual to bring in the weapon.

[00:46:43] Speaker 03:
I'm not sure that helps because at least the standards, as I saw them, for when they make you bring them in or not seem entirely arbitrary.

[00:46:51] Speaker 00:
I don't think it's arbitrary.

[00:46:51] Speaker 00:
I mean, it's my understanding, which is that of Mr. Holbrook, is that when you are buying a weapon from a federally licensed firearm dealer, you will not be required to bring in the weapon.

[00:47:00] Speaker 00:
But if you are getting it from some other means, like you are relocating to the district with it or you're buying it from someone who's not a federally licensed firearm dealer, the district has an enhanced interest in making sure that you are registering the gun that you say that you are and that it is in the form that it is supposed to be.

[00:47:15] Speaker 00:
Now, if we could also move on to the renewal requirements.

[00:47:20] Speaker 05:
If you are somebody who's supposed to bring the weapon in, perhaps because you're moving here from out of state.

[00:47:33] Speaker 05:
You've explained the purpose, but what I don't understand is how the person who's bringing the gun into the MPD is protected, as it were, from being arrested for having an unregistered gun while on the way to the registration station.

[00:47:51] Speaker 00:
Judge Ginsburg, there is a safe harbor in the registration requirements that allows someone to bring a weapon into MPD for the purposes of registering the weapon.

[00:47:58] Speaker 05:
How do you show that that's what they're doing?

[00:48:00] Speaker 00:
Well, I suppose they would have their registration paperwork and they would have all the materials that they're supposed to bring with them when they're registering the weapon in addition to having the firearm in a case and concealed in the ways that it's supposed to be.

[00:48:12] Speaker 03:
What keeps them from getting shot on the way in?

[00:48:15] Speaker 03:
If they've got a big, you know, long gun, you can't hide.

[00:48:19] Speaker 03:
You're seen while approaching the police station and understandably in this modern world, police are going to at least become acutely cautious and protective if someone's approaching the police station with

[00:48:34] Speaker 03:
A long gun.

[00:48:35] Speaker 00:
Not at all, Judge Mallette.

[00:48:36] Speaker 00:
The gun has to be disassembled and carried in a case in order, I think, to take advantage of the safe hardware provision.

[00:48:41] Speaker 00:
So this isn't a choice of someone getting off the metro shotgun in hand.

[00:48:45] Speaker 00:
They are coming in with their gun disassembled in a case.

[00:48:49] Speaker 00:
They then present their information to the NPD when they get there and say, I'm here to register my weapon.

[00:48:54] Speaker 00:
I have my weapon with me.

[00:48:55] Speaker 00:
I mean, it's no different than when law enforcement officers with weapons come into any security checkpoint and say to the security officers there, you know, I have a gun, I am lawfully authorized to carry it for this purpose, and then they go on their way.

[00:49:06] Speaker 00:
I mean, there are administrative processes here to deal with these kinds of situations.

[00:49:09] Speaker 00:
But if we could turn to the registration or the re-registration requirement, there was ample testimony in the 2012 council record

[00:49:17] Speaker 00:
to show that the old law, which didn't require re-registration, was ineffective.

[00:49:22] Speaker 00:
There was testimony that thousands of registrants had moved, had died, had become ineligible to register weapons, or had even lost those weapons, and hadn't notified NPD of that fact.

[00:49:31] Speaker 00:
And so a simple, common sense way to approach this is to have a re-registration requirement every three years.

[00:49:36] Speaker 00:
where an individual who still resides in the district who is still eligible to purchase or to possess a gun will tell the MPD that they want to continue having a registration permit for that weapon in the district.

[00:49:49] Speaker 00:
And it's not a burdensome process because this is a process by which post-2011

[00:49:54] Speaker 00:
You are mailed the forms to register your gun.

[00:49:57] Speaker 00:
So it's not a case that you have to sit there marking the days off on your calendar lest you be caught unaware that your gun has fallen out of the registration window.

[00:50:03] Speaker 00:
You receive the paperwork from MPD and from the district.

[00:50:06] Speaker 00:
And then you can complete that paperwork online.

[00:50:08] Speaker 00:
In that way, it's much like renewing your registration for your driver's license or for your car.

[00:50:13] Speaker 00:
And so it's a process that takes care of a real and considered problem that the council identified and does so in a way that is not burdensome.

[00:50:21] Speaker 03:
How much does it capture that you wouldn't already capture just by running the checks yourself on the records you already have?

[00:50:26] Speaker 03:
What evidence is there that it does that?

[00:50:29] Speaker 00:
It would be inefficient to do so.

[00:50:31] Speaker 00:
The district is uniquely transient, and the people are always coming in and out, especially for political jobs.

[00:50:36] Speaker 00:
And so the district, to be short, could

[00:50:40] Speaker 00:
every three years run checks on everybody in their database, but they wouldn't need to because there are people that have moved out of the district, there are people who have sold their weapons, there are people who have left the district and registered their weapons elsewhere.

[00:50:50] Speaker 00:
And so this is really just about what is an efficient mechanism for allowing an individual to have a permit or to possess a gun registration.

[00:50:59] Speaker 00:
And then the final piece is the training and actually so for two more pieces.

[00:51:03] Speaker 00:
Penultimate is the training and safety requirements.

[00:51:06] Speaker 00:
And this is one where, yes, there was, it's common sense that someone who wants to possess a gun should know how to use it, should know how to keep it safely, and that is because a gun is a dangerous weapon.

[00:51:15] Speaker 00:
And all law enforcement agencies that require or authorize individuals to have weapons require some sort of training.

[00:51:23] Speaker 00:
And here the training, and I think this is an important point because Judge Ginsburg brought it up previously, the training and education requirements were actually reduced between the previous gun laws in 2008 and the 2012 laws.

[00:51:34] Speaker 00:
It used to be that there was a requirement of five hours of training, you had to use an approved person.

[00:51:39] Speaker 00:
Now it is a free course available online that takes between 30 minutes and an hour to complete that covers what the district thinks are the important things they would reasonably assume a gun owner should know about gun handling and gun safety.

[00:51:51] Speaker 00:
And the plaintiffs don't challenge those as being unduly burdensome.

[00:52:05] Speaker 00:
My understanding is that

[00:52:08] Speaker 00:
The one hour course covers everything the district wants you to know about gun laws and gun safety.

[00:52:15] Speaker 00:
And also the registration process itself was found by both the council and the experts to increase awareness about the gun laws in the district.

[00:52:23] Speaker 00:
So the requirement that guns be registered generally promotes people to understand what the laws are.

[00:52:28] Speaker 00:
And then there is this one hour free online course that people can do.

[00:52:32] Speaker 00:
They're required to do it once, but they can certainly do it at their leisure to refresh if they want to do so on a periodic basis.

[00:52:38] Speaker 05:
You don't need to do it to re-register.

[00:52:41] Speaker 00:
I don't believe you do.

[00:52:41] Speaker 00:
I believe it's a one-time course.

[00:52:43] Speaker 00:
Now, it's available and because it's free and online, you can do it as many times as you would like, but the district itself only requires you, I believe, to do it once.

[00:52:51] Speaker 00:
And then finally, the one pistol per month requirement.

[00:52:54] Speaker 00:
There were numerous empirical studies in the 2012 legislative record.

[00:52:57] Speaker 03:
It's not just pistol, right?

[00:52:58] Speaker 03:
It's one gun per month.

[00:53:00] Speaker 00:
The district court found that it was one pistol per month and that's not something that the plaintiffs contend on appeal.

[00:53:08] Speaker 00:
I do believe it is one pistol per month in which case it wouldn't involve long guns or guns of abuse and hunting.

[00:53:17] Speaker 00:
My understanding, and out of the district court, was that it applies to pistols only, and that it's one pistol per month.

[00:53:24] Speaker 00:
But there was ample evidence within the 2012 record, relying on the experiences of both Virginia and Maryland, that having limitations on the number of firearms that can be registered in a particular time reduces illegal trafficking of weapons, and that bulk purchasers are 33% more likely... It seems to me there's a difference between regulating

[00:53:46] Speaker 03:
commercial sales, which is what a purchasing requirement is.

[00:53:50] Speaker 03:
Um, and Scrivencourt and Heller specifically said we're not saying anything about the ability of government to regulate commercial sales.

[00:53:57] Speaker 03:
But the registration requirement regulates how many you can possess in your home.

[00:54:05] Speaker 03:
Doesn't it?

[00:54:06] Speaker 00:
Is that a difference?

[00:54:07] Speaker 00:
Well, so it limits the number that you are allowed to register at any given point.

[00:54:11] Speaker 00:
There's no requirement on the number of guns that one can amass at any given time.

[00:54:15] Speaker 00:
It's just that they can register that.

[00:54:16] Speaker 00:
Well, I have to live here long enough.

[00:54:18] Speaker 00:
Or someone relocates to the district.

[00:54:19] Speaker 00:
They are allowed to register all of their weapons after they come into the district.

[00:54:23] Speaker 00:
Not relocating.

[00:54:23] Speaker 00:
They live here.

[00:54:23] Speaker 00:
They just, after Heller now, things have changed.

[00:54:26] Speaker 00:
They want to move guns in.

[00:54:26] Speaker 00:
But if they live here, they are restricted, we think, quite reasonably to registering one weapon.

[00:54:30] Speaker 03:
But you're not regulating commercial transactions at that point.

[00:54:33] Speaker 03:
Aren't you regulating the core right to possess guns?

[00:54:37] Speaker 00:
I think that the expert testimony of Mr. Vince is especially on point about this.

[00:54:42] Speaker 00:
He relied both on the studies, some of which I've cited, and his own personal observations from Virginia having a similar law.

[00:54:48] Speaker 03:
But what he said is that given the... Did they have a registration law or a gun sale purchase limit law?

[00:54:53] Speaker 03:
I thought Virginia had a purchase limit, not a registration a month.

[00:54:57] Speaker 00:
You may be right.

[00:55:00] Speaker 00:
The Virginia law has been repealed, but I think you may be right that it's about purchases rather than registrations.

[00:55:05] Speaker 00:
But what Vince said in his expert testimony, and this is a JA404-05, was that the unique nature of DC, where firearms are by and large coming from out of the jurisdiction,

[00:55:14] Speaker 00:
The district doesn't have any authority to regulate the guns that are being purchased elsewhere.

[00:55:18] Speaker 00:
So registration is the only way for the district to control since it can't legislate the purchases that take place in Maryland or D.C.

[00:55:24] Speaker 00:
And so the one gun a month registration requirement allows the district to know who is registering their weapons and to ensure that someone's not

[00:55:32] Speaker 00:
impermissibly registering, you know, multiple weapons when there's no need and, in fact, no protected secondary interest in having an arsenal of weapons.

[00:55:38] Speaker 03:
I guess it doesn't make a lot of sense.

[00:55:39] Speaker 03:
The whole justification for registration is we want to know what guns people have, maybe where they live with those guns, if a motorcade's going by.

[00:55:49] Speaker 03:
We want to know, we want to make sure people are conscious of the gun laws, have gone through the training if they have them,

[00:55:56] Speaker 03:
all of those way in favor of register all the ones you have and don't have to do it piecemeal over time.

[00:56:05] Speaker 03:
It just seems to me now you're saying registration is a means of stopping people from having the guns altogether.

[00:56:13] Speaker 00:
you can register all the weapons that you have.

[00:56:15] Speaker 00:
This may limit the amount of weapons that you purchase to one a month, because that's what you are allowed to register, but I don't think the district's interest in reducing the number of guns within the city's jurisdiction is somehow suspect as long as they are protecting the individual right to have a gun for self-defense.

[00:56:32] Speaker 00:
An individual doesn't need 15, 20, 30 guns for the individual right of self-defense.

[00:56:36] Speaker 03:
Well, someone wanted to register two here.

[00:56:38] Speaker 00:
If you register two, you have to do so in a period of 31 days or 32 days.

[00:56:44] Speaker 00:
You can do one a month.

[00:56:45] Speaker 00:
And so if you want to purchase a weapon, you can purchase your weapon, register it, and then wait, we think, a short time before it becomes re-registered.

[00:56:53] Speaker 03:
That might be a fine, rational basis.

[00:56:55] Speaker 03:
But I'm not sure why, given all the benefits you tout of registration, why you want to cap it, other than I think, because you said you can't regulate the sale process, which

[00:57:07] Speaker 03:
Heller and the Supreme Court said you could.

[00:57:10] Speaker 03:
It was leaving open for government to do.

[00:57:13] Speaker 03:
So why do you get to do this backwards thing when its sole effect is to limit the possession of guns in the home?

[00:57:21] Speaker 00:
Because under intermediate scrutiny, the district is allowed to carry out a gun policy that it thinks would increase public safety as long as it's not doing so in an unduly burdensome way.

[00:57:30] Speaker 00:
This doesn't need to be the least restrictive alternative.

[00:57:32] Speaker 00:
It just needs to be something that is substantially related to the government's interest.

[00:57:35] Speaker 00:
And the government has an interest here

[00:57:37] Speaker 00:
in ensuring that, yes, it's guns are registered, but also that individuals aren't amassing articles of weapons more than 12 a year.

[00:57:42] Speaker 03:
Well, it's not just that you come up with a good reason.

[00:57:43] Speaker 03:
It's are you infringing more than necessary?

[00:57:46] Speaker 03:
And so if you say, well, you know, we'd like to slow this process down, in the process, you're keeping somebody from having what the Supreme Court told us in Heller,

[00:57:56] Speaker 03:
Bound by that is that this is the core right of the Second Amendment.

[00:58:02] Speaker 03:
Wait 30 days to exercise your core right under the Constitution.

[00:58:05] Speaker 00:
There's no limitation.

[00:58:07] Speaker 00:
You can register that one gun immediately and thereby exercise your core right.

[00:58:11] Speaker 00:
If you would like a second pistol as opposed to a long gun, we think that a waiting requirement of 30 days to be registered that is not unduly burdensome under the Second Amendment.

[00:58:19] Speaker 03:
And do you have a position on the severability issue, if sort of parts of it seemed okay and parts of it didn't survive?

[00:58:26] Speaker 00:
Two responses to that.

[00:58:28] Speaker 00:
First, the Supreme Court in Heller presumed that there was a severability analysis because it did not strike down the entire scheme.

[00:58:34] Speaker 00:
And secondly, there is in the D.C.

[00:58:35] Speaker 00:
Code a general severability provision.

[00:58:37] Speaker 00:
So I did not check before this argument whether there's a particular and specific severability provision in the gun law, but there is generally in the D.C.

[00:58:44] Speaker 00:
Code.

[00:58:45] Speaker 00:
So we think that if this court is troubled by any of these regulations, we think that they shouldn't be because there's ample evidence both in the record and in the expert testimony that shows that these are reasonable restrictions that do not burden.

[00:58:54] Speaker 00:
But if this court felt like there were, it could sever those few that it found to be overly burdensome from the core of the law.

[00:59:02] Speaker 03:
And can they re-register all the guns at once?

[00:59:04] Speaker 03:
You don't have to do that.

[00:59:05] Speaker 00:
So you can re-register only if it's 12 at a time on the same form.

[00:59:09] Speaker 03:
Can you fill out two forms and just re-register them all?

[00:59:13] Speaker 00:
I don't believe there's anything in the record that speaks to that.

[00:59:15] Speaker 00:
I just know that the form allows you to do 12 at once.

[00:59:17] Speaker 00:
And so it may be that you need to sort of fill out successive forms or call in PD for guidance on how to do that.

[00:59:24] Speaker 00:
But I understand that you can do at least 12 on one form at one time.

[00:59:28] Speaker 05:
Council, where is the League of One Weapon Per Month prediction?

[00:59:34] Speaker 00:
So it's 7-2502.03e.

[00:59:35] Speaker 00:
Can you tell me where it is?

[00:59:47] Speaker 05:
This is not an easy statement.

[00:59:53] Speaker 00:
No, I apologize, but it's .03 subsection E.

[00:59:57] Speaker 05:
Ah, okay.

[00:59:59] Speaker 05:
The chief shall register no more than one pistol per register during any 30-day period.

[01:00:06] Speaker 05:
An exception for bringing them in for the first time.

[01:00:09] Speaker 00:
Exactly.

[01:00:09] Speaker 00:
It's not a state.

[01:00:10] Speaker 00:
So someone who really relocates to the district from Virginia or Maryland can register all of their weapons at once.

[01:00:14] Speaker 05:
So it's your view that there's no restriction on long guns?

[01:00:19] Speaker 00:
That's my view, and that was also the district court's view, that it really is limited to pistols.

[01:00:23] Speaker 05:
Well, the district court kept saying, in the relevant paragraph, it talks about firearms.

[01:00:27] Speaker 05:
It never says that.

[01:00:28] Speaker 05:
I couldn't find any use of a distinguishing term.

[01:00:32] Speaker 00:
I believe it was early on in the opinion.

[01:00:34] Speaker 00:
I don't have the exact page with me, but I can provide it to the court.

[01:00:37] Speaker 00:
The district court did address this and say that it was one pistol per month.

[01:00:40] Speaker 00:
But then I think it used firearm just as a synonym for going throughout.

[01:00:43] Speaker 05:
There's no other place where the number of long guns.

[01:00:46] Speaker 00:
Not to my knowledge, the plaintiffs haven't raised there being any.

[01:00:51] Speaker 05:
Does that suggest a lesser, I'm sorry.

[01:00:54] Speaker 00:
No, you go ahead.

[01:00:55] Speaker 05:
Does that suggest there's a lesser safety concern of migrants?

[01:00:58] Speaker 00:
I don't believe so.

[01:01:02] Speaker 00:
I think that it may very well be that people have, as a matter of history, I can't say I'm a hunting buff, but different types of long guns for different purposes and different types of hunting, whereas a pistol in the home for the poor right of self-defense, it is a handgun.

[01:01:16] Speaker 00:
And so there might be reasonable restrictions on limiting those one every 30 days, whereas long guns, since you might need one for pheasant shooting and one for geese or one for foxes, that you might have numerous guns.

[01:01:27] Speaker 05:
So does it follow from your reasoning then that the district could say one pistol per home?

[01:01:38] Speaker 00:
And it's an interesting question.

[01:01:40] Speaker 00:
I think it would be a much closer case if the district were to say only one pistol, I think, per individual.

[01:01:45] Speaker 00:
I don't think they could say, you know, per home necessarily.

[01:01:48] Speaker 00:
But that's not the restriction that we have here.

[01:01:50] Speaker 00:
Someone can amass 12 handguns in the course of a year, and they can also bring in as many handguns.

[01:01:55] Speaker 00:
They can move to a district with 100 handguns.

[01:01:57] Speaker 00:
For 30 days, the D.C.

[01:01:58] Speaker 00:
would say, yeah, one gun.

[01:02:00] Speaker 00:
And that one handgun is sufficient, in our estimation, to protect the individual right of self-defense within the home.

[01:02:06] Speaker 03:
Can you constitutionally do it for 30 days?

[01:02:08] Speaker 00:
You have to answer that question, I think.

[01:02:10] Speaker 00:
Right, and we think that we can.

[01:02:11] Speaker 00:
If the right that is protected is the right of individual self-defense within the home, one weapon allows someone to sufficiently protect that right.

[01:02:20] Speaker 05:
Well, then you could limit it to one per home.

[01:02:22] Speaker 00:
You just said it.

[01:02:24] Speaker 00:
I don't know, I don't want to take a position on what we'd argue that we're one per home.

[01:02:28] Speaker 00:
I think that here, we don't need to get into that much closer question.

[01:02:33] Speaker 00:
It's just about a 30-day requirement and doesn't limit the total number of weapons that one may amass or the total amount of weapons one may move to the district with.

[01:02:42] Speaker 03:
I don't understand that answer, though, because I thought you just said that, yeah, we could limit it to one in the home.

[01:02:46] Speaker 00:
I think that it is protected by the Second Amendment, that if you have a right to have a weapon in the home for purposes of self-defense, that a legislature could, if it had a sufficient basis to do so, and saw that there was a problem of too many guns, that they were getting lost at a higher rate, stolen at a higher rate, ending up in

[01:03:02] Speaker 00:
you know, illegal circumstances, that they could have a basis for articulating a requirement of only allowing the purchase of one gun or the possession of one gun in the home.

[01:03:10] Speaker 00:
But that's not the judgment that the Council here has made.

[01:03:13] Speaker 00:
The Council's made a much broader judgment, which just says... Does this record support that judgment?

[01:03:17] Speaker 00:
I think this record doesn't need to support the judgment in your hypothetical.

[01:03:21] Speaker 03:
It would if someone lives here for 30 days.

[01:03:23] Speaker 03:
You said it's a transient place.

[01:03:24] Speaker 03:
Someone moves in here.

[01:03:25] Speaker 03:
They're only living here for 30 days.

[01:03:26] Speaker 03:
They're working on a temporary special person and coming in for some Senate hearing.

[01:03:30] Speaker 03:
For 30 days, they're out.

[01:03:32] Speaker 03:
Their entire life in D.C.

[01:03:33] Speaker 03:
is 30 days.

[01:03:34] Speaker 03:
They're limited to one gun for self-defense.

[01:03:37] Speaker 00:
Yes, and I think the record here does support the Council's... If you do it for 30 days, you're gonna put 60 days.

[01:03:41] Speaker 00:
...consider judgment to which this fourth-ose deference, that having multiple guns increases suicides, homicides, illicit trafficking, and that having restrictions on the amount of guns that can be registered will...

[01:03:52] Speaker 00:
seek to prevent the misuse of firearms, especially when it comes to children, and I think that comes from Jones's testimony, and then it also, Vince's testimony, both on studies and on personal observation that limits on purchase and registration are one of the most effective methods of disrupting illegal interstate trafficking of firearms.

[01:04:09] Speaker 00:
So I think that on the narrow question that you have raised, the person that lives in the jurisdiction for 30 days, there is an ample record, both in the 2012 council legislative record and in the testimony of the three experts with a combined 70 years of law enforcement experience and Daniel Webster, who is our academic expert.

[01:04:28] Speaker 00:
Now I know I'm well over my time.

[01:04:30] Speaker 00:
If the court has no further questions, we would ask that the court affirm.

[01:04:34] Speaker 00:
Thank you.

[01:04:35] Speaker 02:
Does Mr. Halbrooke have any time?

[01:04:38] Speaker 02:
All right, why don't you take one minute.

[01:04:42] Speaker 02:
One minute.

[01:04:43] Speaker 06:
Thank you, your honor.

[01:04:46] Speaker 06:
Just back to basics.

[01:04:48] Speaker 06:
If I could just site to the record.

[01:04:52] Speaker 06:
Page 442.

[01:04:52] Speaker 06:
The district concedes that the registration records are not used to prevent a crime.

[01:04:57] Speaker 06:
They're not used to determine who committed a crime.

[01:05:00] Speaker 06:
And from Chief Lanier on page 615, they're not used to solve long gun crimes except for possessory offenses.

[01:05:08] Speaker 06:
And then one other site, 763 of the appendix, the district checked with other jurisdictions and no jurisdictions nationwide could be found where the law enforcement officers would check to see who had any kind of registered gun.

[01:05:23] Speaker 05:
Because they assume they're going into a dangerous situation.

[01:05:27] Speaker 06:
And the people who are committing crimes don't register their guns.

[01:05:32] Speaker 06:
It would be totally unrealistic to think that criminals would have registered guns and you would find out about them on the way to the scene.

[01:05:40] Speaker 06:
Judge Kavanaugh, in his vicinity opinion, made that point.

[01:05:43] Speaker 06:
And I think police departments generally recognize it, that nobody checks, nobody assumes a registration record would reflect that there would be no gun at the scene.

[01:05:55] Speaker 03:
What did you put in the record, if anything, to dispute that fingerprints allow them to run a more thorough check of local records than simply the social security number and the national check?

[01:06:07] Speaker 06:
First of all, the NICS, the national check, also checks local records.

[01:06:11] Speaker 06:
If it's unlawful locally to acquire a gun, the background check will be turned down.

[01:06:19] Speaker 06:
And of course, at the point of sale, the district's free to make any check that it wants.

[01:06:24] Speaker 06:
And in fact, this is what perplexes us about the re-registration.

[01:06:28] Speaker 06:
They tell us they constantly check records of the registered guns.

[01:06:32] Speaker 06:
And when they say that what makes it more efficient to have re-registrations so they can check to see whether there's a legal disability that's come up, we've never seen an answer either in the breeze or today.

[01:06:44] Speaker 06:
how that somehow makes it more efficient when they're checking records all along.

[01:06:47] Speaker 03:
Could you dispute the evidence that they had in the record that fingerprints identified a lot more folks that shouldn't have guns than just the national check based on a social security number?

[01:06:59] Speaker 06:
There's nothing in the record that that discovered more people who shouldn't buy guns.

[01:07:04] Speaker 06:
Those were theoretical arguments that were made in the declarations, but there was no evidence.

[01:07:09] Speaker 05:
You think that there was a lower rate of homicides in this jurisdiction?

[01:07:14] Speaker 06:
Well, the District of Columbia does fingerprints, and it's got a lot higher rate of homicide than jurisdictions like Maryland and Virginia that do not.

[01:07:25] Speaker 06:
I mean, they had some expert testimony about lower and higher homicides, but when you look at actual experience in the district, it doesn't pan out.

[01:07:34] Speaker 05:
But the data are there, you're right.

[01:07:36] Speaker 05:
And of course, you look at that and say it shows that the present requirements are not effective or useless.

[01:07:45] Speaker 05:
And the district looks at it and says, well, we just need a tighter requirement.

[01:07:49] Speaker 05:
And for a longer period of time.

[01:07:51] Speaker 06:
If something doesn't work, just keep trying it more.

[01:07:53] Speaker 06:
I think that came from Abraham Lincoln.

[01:07:55] Speaker 06:
There's just no nexus between registration and the crime.

[01:08:01] Speaker 06:
And I think with long gun registration, that's so clear.

[01:08:05] Speaker 06:
They're very rarely used.

[01:08:07] Speaker 06:
And elements of the novel registration requirements, like re-registration, cancellation, all of that, they just haven't made a showing here.

[01:08:16] Speaker 05:
As the King said about Humpty Dumpty, all that shows is I need more horses and more men.

[01:08:21] Speaker 04:
Thank you your honor.