Respectfully, there can be no doubt that the District has raised a very serious question onthe merits. Neither the Supreme Court nor the D.C. Circuit has determined that the Second
Amendment extends beyond the home. Plaintiffs appear to contend otherwise, see P.Mem. 4, but
refer only to the implications of various Supreme Court dicta and, subsequently, implicitly
concede the point by discussing what the Supreme Court “would” do in the future on that specific issue.
Id. at 6. See, e.g., Williams v. State, 10 A.3d 1167, 1177 (Md. 2011) (“t is clearthat prohibition of firearms in the home was the gravamen of the certiorari questions in both
[District of Columbia v. Heller, 554 U.S. 570 (2008) (“Heller I”)] and [McDonald v. Chicago,
130 S. Ct. 3020 (2010)] and their answers. If the Supreme Court, in this dicta, meant its holding
to extend beyond home possession, it will need to say so more plainly.”), cert. denied, 132 S. Ct.
93 (2011).2
Plaintiffs additionally argue that the District’s arguments regarding Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012), are “disingenuous.” P.Mem. at 6. Here, too, plaintiffs are incorrect.
Only one circuit—the Seventh—has extended the Second Amendment right beyond the home in
a jurisdiction (Illinois) that had not already, historically, recognized some form of public
carrying. No court has addressed a ban on public carrying as unique as the District’s—a point
plaintiffs do not rebut. The fact that the District’s law is “exceedingly rare” does not mean it is
unconstitutional.
The Court, ignoring the historical evidence regarding public carrying laws presented by
the District, see Doc. Nos. 33, 33-1, found that carrying handguns in public was not only within
the scope of the Second Amendment, but at its core, and then declined to engage in the second
step of the analysis, i.e., determining whether the prohibition withstands the appropriate level of
scrutiny. See Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (“Heller II”).This, respectfully, was error.
The historical evidence demonstrates that the Second Amendment’s right to keep and
bear arms, as understood at the time of ratification, did not include an unalloyed right to carry
operable firearms in public for the purpose of self-defense. See Doc. No. 33-1 at 8–14; Doc. No.
33-2 at 7–14. Centuries of British statutes and common law confirm that it was illegal to carry
firearms in public. Doc. No. 33 at 3–4. This was the understanding that prevailed at the time of
the founding and thereafter: hence because constitutional rights “are enshrined with the scope
they were understood to have when the people adopted them[,]”District of Columbia v. Heller,
554 U.S. at 634–5, the Second Amendment does not “at its core” encompass a right to carry an
operable firearm in public.
Rather, the “core” of the Second Amendment right is “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home[,]” id. at 635, not the right to
carry handguns in public. “At its core, the Second Amendment protects the right of law-abiding
citizens to possess non-dangerous weapons for self-defense in the home.” United States v.
Marzzarella, 614 F.3d 85, 92 (3rd Cir. 2010) (footnote omitted); accord United States v.
Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (“as we move outside the home, firearm rights
have always been more limited, because public safety interests often outweigh individual
interests in self defense.”).
Thus, even assuming some form of public carrying of handguns is protected by the
Second Amendment, it is not at the core of the right, and, accordingly, a court must examine the
strength of the government’s justifications for its regulation, pursuant to intermediate scrutiny.3
See Heller II, 670 F.3d at 1252. The Court here did not do so, ignoring the many, important
public safety and other reasons put forth for the District’s longstanding prohibition, many of
which are unique to the District of Columbia, a state-level jurisdiction with an almost completely
urban makeup that as the seat of the national government is home to the White House, the U.S.
Capitol, dozens of federal agencies, and hundreds of international diplomats and has, over the
years, experienced attempted as well as successful assassinations of Presidents and other officials
of national importance using firearms. These and the other important public safety concerns will
need to be considered by the D.C. Circuit in any appeal, and will present a serious question (even
assuming the Circuit concludes a balancing test is necessary), one that is of first impression in
this Circuit.
The District respectfully disagrees with the Court’s conclusion that “it is beyond dispute
that ‘the prospect of conflict . . . is just as menacing (and likely more so) beyond the front porch
as it is in the living room.’” Doc. No. 51 at 12 (quoting Peruta v. Cnty. of San Diego, 742 F.3d
1144, 1152 (9th Cir. 2014)).4 But the world outside of the home has something that the home
lacks—armed law-enforcement officers whose duty is to preserve public safety. Surely this must
be at least an implicit reason that the Supreme Court determined that the right to self-defense in
the Second Amendment is at its peak in the home. Heller I, 554 U.S. at 635.5
[all emphasis added]
