IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION. ) Plaintiffs,

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1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION MICHAEL BATEMAN, et al., ) Case No. 5:10-CV-265-H ) Plaintiffs, ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN OPPOSITION TO v. ) DEFENDANTS MOTIONS FOR ) SUMMARY JUDGMENT BEVERLY PERDUE, et al., ) ) Defendants. ) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT COME NOW the Plaintiffs, Michael Bateman, Virgil Green, Forrest Minges, Jr., GRNC/FFE, Inc., and Second Amendment Foundation, Inc., by and through undersigned counsel, and submit their Memorandum of Points and Authorities in Opposition to Defendants Motions for Summary Judgment. Dated: January 10, 2011 Respectfully submitted, /s/ Alan Gura /s/ Andrew T. Tripp Alan Gura Kearns Davis Gura & Possessky, PLLC N.C. State Bar No N. Columbus Street, Suite 405 kdavis@brookspierce.com Alexandria, VA Andrew T. Tripp /Fax N.C. State Bar No atripp@brookspierce.com BROOKS, PIERCE, MCLENDON, Counsel for Plaintiffs HUMPHREY & LEONARD, L.L.P Wachovia Center 150 Fayetteville Street Raleigh, NC Telephone: Facsimile: Local Civil Rule 83.1 Counsel for Plaintiffs Case 5:10-cv H Document 73 Filed 01/10/11 Page 1 of 15

2 TABLE OF CONTENTS Table of Authorities ii Preliminary Statement Argument I. CONSTITUTIONAL RIGHTS CANNOT BE ABSOLUTELY PROHIBITED II. THE SECOND AMENDMENT IS NOT LIMITED TO THE HOME III. THE FOURTH CIRCUIT HAS HELD THAT THE SECOND AMENDMENT RIGHTS OF LAW-ABIDING, RESPONSIBLE INDIVIDUALS ARE SUBJECT TO STRICT SCRUTINY REVIEW Conclusion i Case 5:10-cv H Document 73 Filed 01/10/11 Page 2 of 15

3 TABLE OF AUTHORITIES Cases Ashcroft v. ACLU, 542 U.S. 656 (2004) Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) Commonwealth v. Blanding, 20 Mass. 304 (1825) District of Columbia v. Heller, 128 S. Ct (2008) , 4, 5, 7 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) McDonald v. City of Chicago, 130 S. Ct (2010) , 7 Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) Respublica v. Oswald, 1 U.S. (1 Dall.) 319 (Pa. 1788) United States v. Chester, 2010 U.S. App. LEXIS (4th Cir. Dec. 30, 2010) , 3, 6-8 United States v. Miller, 307 U.S. 174 (1939) United States v. Playboy Entm t Group, 529 U.S. 803 (2000) United States v. Salerno, 481 U.S. 739 (1987) ii Case 5:10-cv H Document 73 Filed 01/10/11 Page 3 of 15

4 Statutes 42 U.S.C D.C. Code (a) (2008) D.C. Code (2008) Other Authorities David Kopel & Clayton Cramer, State Court Standards of Review for the Right to Keep and Bear Arms, 50 SANTA CLARA L. REV. 1 (2010) iii Case 5:10-cv H Document 73 Filed 01/10/11 Page 4 of 15

5 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT PRELIMINARY STATEMENT Defendants Beverly Perdue and Reuben Young s ( State Defendants ) motion for summary judgment adds nothing new. The brief in support of that motion merely continues Defendants arguments with Plaintiffs position, incorporating by reference the Defendants earlier briefs (State Def. Br. at 2) and serving as little more than an additional reply on their motion to dismiss. For example, Defendants claim, without elaboration, that Plaintiffs fail[] to satisfy basic principles of ripeness, Id. at 7, but Plaintiffs have already briefed this issue extensively. See Opp. to Motion to Dismiss, at There is no need to repeat the material. The other Defendants summary judgment motions are no better, relying on nothing more than incorporation by reference of the State Defendants briefing, and their own earlier briefing 1 on the motions to dismiss. Given the brevity of new material, the opposition need not be extensive. But that is not to say that these motions are of no value. They present the Court an opportunity to consider the Fourth Circuit s recent published opinion in United States v. Chester, F.3d, 2010 U.S. App. LEXIS (4th Cir. Dec. 30, 2010), attached hereto as Exhibit A. Chester is the law of this circuit, and it completely dispenses with Defendants arguments and those of their amici, also addressed below. 1 Defendant County adds that it had nothing to do with the enactment of the challenged laws, a fact which is entirely irrelevant in this action brought pursuant to 42 U.S.C The issue is not who enacted the statute, but rather, which person, under color of state law, is violating the Plaintiffs rights. Case 5:10-cv H Document 73 Filed 01/10/11 Page 5 of 15

6 ARGUMENT I. CONSTITUTIONAL RIGHTS CANNOT BE ABSOLUTELY PROHIBITED. Contrary to Defendants assertions, nowhere do Plaintiffs claim that they have an absolute right to carry guns, in the sense that the right to carry is not subject to regulation. Of course the right to carry a gun is subject to some regulation, and Plaintiffs briefs spell this out in some detail. But absolutism does have a role to play in the analysis, not in the sense of Plaintiffs entitlements, but in the sense of what the government may not do. The government may not absolutely prohibit the exercise of a constitutional right. That much is the Supreme Court s teaching, in finding that a ban on the use of firearms for self-defense, without more, conflicts with the constitutional guarantee and must therefore be struck down. District of Columbia v. Heller, 128 S. Ct. 2783, 2818 (2008). Whatever else the Defendants might do to regulate the right to carry firearms, they cannot ban the carrying of firearms by law abiding people for the purpose of self-defense when social order has broken down the absolute core of the Second Amendment s guarantee. Defendants amici Brady Center s derisive mis-characterization of Plaintiffs arguments, as seeking a right to form gangs or squads of vigilantes... arming themselves with assault weapons and patrolling a riot, or to become protestors carrying deadly weapons who take to the streets, Brady Br. at 2 and 6, are not well-taken. Neither is the irresponsible suggestion that Plaintiffs seek to enable individuals to take up arms against the authorities. Brady Br. at 18 n.8. Nothing in Plaintiffs complaint seeks to vindicate a right to engage in vigilante patrols, or armed protest during emergencies, and absolutely nothing in Plaintiffs complaint challenges the State s authority to disperse unlawful assemblies. The standards for restricting the First 2 Case 5:10-cv H Document 73 Filed 01/10/11 Page 6 of 15

7 Amendment right of assembly at a time of public emergency or riot are unquestioned by this case. This case has nothing to do with taking to the streets. Individuals participating in an unlawful assembly may be arrested, regardless of whether they are armed, and nothing in Plaintiffs arguments questions that proposition whatsoever. Anyone who would take up arms against the authorities would not look to this Court for permission to do so. To groups like the Brady Center, who believe that even the possession of guns inside the home may be banned, every armed individual is an incipient criminal or at least too unaccountably irresponsible to use firearms. But the Constitution requires the government to make a distinction between law-abiding individuals, who may have guns, and criminals, who may not. And that distinction must be honored wherever the right of self-defense is implicated, even, and indeed especially, during times of public emergency. II. THE SECOND AMENDMENT IS NOT LIMITED TO THE HOME. [T]he core right identified in Heller [is] the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense. United States v. Chester, F.3d, 2010 U.S. App. LEXIS at *26 (4th Cir. Dec. 30, 2010) (emphasis removed and added). This should be the end of the matter, confirming what Plaintiffs have detailed in their summary judgment brief: the Supreme Court has carefully considered the meaning of the term bear arms, and concluded it guarantees a right to carry arms subject to some obvious restrictions. For example, the state may regulate the manner of carrying guns, and may also impose time, place and manner restrictions on the right. 2 2 Contrary to Defendants suggestions, the time for suspending Second Amendment rights cannot be whenever people most urgently need to exercise the right of self-defense. 3 Case 5:10-cv H Document 73 Filed 01/10/11 Page 7 of 15

8 Nonetheless, and despite the Supreme Court s observation that the right to keep and bear arms protects activities such as hunting, Heller, 128 S. Ct. at 2801; McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 n.27 (2010), and may be restricted in some specific sensitive places presumably outside the home, Heller, 128 S. Ct. at 2817; McDonald, 130 S. Ct. at 3047 (there are no sensitive places inside a home), Defendants and their amici persist in maintaining that Heller s holding is limited to the home. The arguments are unavailing. Defendants and their amici s insistence that the Second Amendment extends no further than the home, because that is the only context in which the Supreme Court has yet to review the Second Amendment, not only contradicts the clear language of Heller and McDonald with respect to the meaning of bear arms and relating to sensitive places, but is also illogical. Under that reasoning, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) must have been limited to cases concerning the President s delivery of judicial commissions. Indeed, Heller begins by instructing that [i]n interpreting [the Second Amendment], we are guided by the principle that the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning. Heller, 128 S. Ct. at 2788 (citation and internal quotation marks omitted). Accordingly, if the Supreme Court has truly never discussed the Second Amendment s application beyond the home, the burden would be upon Defendants and their amici to explain how it is that eighteenth-century Americans understood their right to carry arms was so radically limited. Plaintiffs are unaware of any such historical record, and none is offered. Defendants and their amici offer absolutely no argument, let alone historical evidence, for the proposition that the right to arms was understood in 1791 as extending no further than one s door. 4 Case 5:10-cv H Document 73 Filed 01/10/11 Page 8 of 15

9 Indeed, the Brady Center has long championed the erroneous, now-rejected view the Second Amendment guarantees only a right to have arms in connection with state-sanctioned or directed military service. Accepting Brady s interpretation of the Second Amendment, it can hardly describe a right limited to one s home. But the claim that the Supreme Court has never examined the Second Amendment in a public context is also factually incorrect. The Second Amendment s application outside the home dates back to United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court remanded for further proceedings the question of whether a sawed-off shotgun qualified as a constitutionally-protected arm. The shotgun came within federal purview because it had allegedly been transported from Claremore, Oklahoma to Siloam Springs, Arkansas, id. at 175 obviously outside Miller s home, yet potentially under the Second Amendment s protection. Finally with respect to this point, Brady s emphasized citation of the Supreme Court s command that the District of Columbia issue Heller a license to carry [his handgun] in the home, Brady Br. at 7-8 (quoting Heller, 128 S. Ct. at 2822) (footnote omitted), is at best disingenuous. Heller challenged former D.C. Code (a) (2008), which provided that carrying a gun in one s home without a permit constituted a misdemeanor offense, separate and apart from the felony offense of carrying a gun in public. Former D.C. Code (2008) provided for a license to carry issued at the police chief s discretion, although licenses were never issued. Heller did not seek a permit to carry a handgun in public. See Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007), aff d sub nom Heller. 5 Case 5:10-cv H Document 73 Filed 01/10/11 Page 9 of 15

10 III. THE FOURTH CIRCUIT HAS HELD THAT THE SECOND AMENDMENT RIGHTS OF LAW-ABIDING, RESPONSIBLE INDIVIDUALS ARE SUBJECT TO STRICT SCRUTINY REVIEW. [W]e agree with those who advocate looking to the First Amendment as a guide in developing a standard of review for the Second Amendment. Chester, 2010 U.S. App. LEXIS at *24 (citations omitted). Turning to the available First Amendment standards, the Fourth Circuit applied intermediate, rather than strict scrutiny, to a domestic violence misdemeanant only because it viewed the Second Amendment s core as reaching law-abiding, responsible citizen[s]. Id. at *26 (emphasis original). As Plaintiff here are law-abiding, responsible citizens, the law must be subjected to strict scrutiny review, in the event the Court believes a standard of review analysis is even necessary for a law that literally and directly conflicts with the core of the Second Amendment right. Of course, Chester s adoption of strict and intermediate scrutiny standards in Second Amendment cases vitiates Defendants proposed no set of circumstances test, drawn from United States v. Salerno, 481 U.S. 739, 745 (1987), as well as the Brady Center s quixotic reasonable regulation test. Each merits little consideration. With regards to the Salerno test, it is notable that Judge Davis dissented from the Fourth Circuit s adoption of a First Amendment framework for the Second Amendment specifically 3 The Fourth Circuit stands on strong historical footing following this trend. Abuse of First and Second Amendment rights have long been viewed as similar. See Commonwealth v. Blanding, 20 Mass. 304, 314 (1825) ( The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction. ); Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 330 n.* (Pa. 1788) ( The right of publication, like every other right, has its natural and necessary boundary; for, though the law allows a man the free use of his arm, or the possession of a weapon, yet it does not authorize him to plunge a dagger in the breast of an inoffensive neighbour. ). 6 Case 5:10-cv H Document 73 Filed 01/10/11 Page 10 of 15

11 because he wanted to preserve Salerno s application to Second Amendment cases. Chester, 2010 U.S. App. LEXIS at *40-42 (Davis, J., concurring in judgment). As noted previously by Plaintiffs, Salerno by its own terms is incompatible with a First Amendment framework, Salerno, 481 U.S. at 745. Indeed, Salerno is incompatible with any test that, like strict scrutiny, requires that there be no less restrictive alternative, Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); or that like intermediate scrutiny, requires the government demonstrate a reasonable fit between the challenged regulation and a substantial government objective. Chester, 2010 U.S. App. LEXIS at *27 (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). Under both tests, a law that permissibly reaches some valid applications is nonetheless unconstitutional where room remains to narrow its impact. Since Chester explicitly joins other circuits in adopting a First Amendment framework for the Second Amendment, the Brady Center s proposed test, based on supposed key differences between the First and Second Amendments, Brady Br. at 21, need not detain the 4 Court for long. Chester, in adopting both strict and intermediate scrutiny, the latter of which it applied, also flatly rejected Brady s theory that the Supreme Court foreclosed any form of heightened scrutiny that would require the government to ensure that firearms legislation has a tight fit between means and ends. Brady Br. at 20. Brady claims that [g]iven the grave risks posed by guns, requiring that the government demonstrate a tight fit would unduly restrict the 4 The Supreme Court also rejected Brady s contention that the Second Amendment is entitled to less protection because guns are uniquely dangerous. The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and the prosecution of crimes fall into the same category. McDonald, 130 S. Ct. at Like the First, [the Second Amendment] is the very product of an interest-balancing by the people... Heller, 128 S. Ct. at 2821 (emphasis original). 7 Case 5:10-cv H Document 73 Filed 01/10/11 Page 11 of 15

12 State s broad police power authority to protect the public from harm. Brady Br. at 22. But the Fourth Circuit in Chester explicitly demanded that the government must demonstrate under the intermediate scrutiny standard that there is a reasonable fit between the challenged regulation and a substantial government objective. Chester, 2010 U.S. App. LEXIS at *27. Brady s proposition of a reasonable regulation test is based on the manner in which 5 state courts have allegedly applied analogous state right to arms provisions. Plaintiffs would disagree with this assessment of how state courts evaluate right to arms provisions. See, e.g. David Kopel & Clayton Cramer, State Court Standards of Review for the Right to Keep and Bear Arms, 50 SANTA CLARA L. REV. 1 (2010). But having federal courts defer to state authorities on the question of how to best secure a federal constitutional right contradicts the very logic of the Fourteenth Amendment, which was ratified precisely because state courts were not upholding basic civil rights, including the right to keep and bear arms. Brady errs in claiming that the federal Constitution sets the lower not upper limits of constitutional rights. Brady Br. at 16. Obviously, the Fourteenth Amendment was ratified upon the contrary proposition. In any event, the reasonable regulation standard is precluded by Heller s explicit rejection of rational basis. There is simply no difference between rational basis review and amici s description of this allegedly new test makes it clear that it speaks of rational basis review. Amici offer that this test presumes the lawfulness of a wide gamut of gun laws, Brady Br. at 21, and that whatever a legislature deems reasonable should be upheld: firearm regulation is best suited for the legislative arena, not the courts. Id. at 26. Brady believes that only a law 5 Ironically, Brady fabricates a test based on interpretations of state constitutions, yet claims Plaintiffs commit the error of reading state and federal constitutions coterminously. Brady Br. at Case 5:10-cv H Document 73 Filed 01/10/11 Page 12 of 15

13 completely banning the exercise of Second Amendment rights would fail reasonable regulation review, but this is hardly consistent with the level of protection afforded fundamental rights. As the Supreme Court recognized in the First Amendment context, [i]t is of no moment that the statute does not impose a complete prohibition. The distinction between laws burdening and laws banning speech is but a matter of degree. United States v. Playboy Entm t Group, 529 U.S. 803, 812 (2000). What Brady does not notice is that if there is a right to have and carry guns for selfdefense, then the challenged laws would fail its proposed reasonable regulation test, since they flatly prohibit the carrying of guns, and permit the prohibition of firearm and ammunition sales. To the extent a means-ends level of scrutiny is required to resolve this case, Chester mandates that the proper standard would be strict scrutiny. Defendants would thus be required to demonstrate that the challenged provisions are narrowly tailored to achieve a compelling government purpose, and that no less restrictive alternative is available. Pltfs. Summary Judgment Br. at 16. As Defendants and their amici capably demonstrate, the government has many valid means at its disposal to control assembly and travel during a state of emergency, achieving all of its interests without infringing upon Second Amendment rights. Anyone who engages in criminal activity, fails to disperse in response to a valid order, or intentionally ventures out in areas subject to legitimate emergency traffic control may be arrested regardless of whether he or she is armed. There is simply no need to deprive responsible, peaceful people of the means of self-defense to satisfy the state s interests during an emergency. 6 6 Defendants affidavits speculate that gun possession by law abiding individuals would make the government s efforts to keep the peace more difficult, but this merely restates the generalized objection to Second Amendment rights. 9 Case 5:10-cv H Document 73 Filed 01/10/11 Page 13 of 15

14 CONCLUSION Defendants and their amici s arguments were wrong before the Fourth Circuit issued its opinion in Chester. They are now clearly foreclosed. Defendants motions for summary judgment, like their motions to dismiss the complaint, must be denied. Dated: January 10, 2011 Respectfully submitted, /s/ Alan Gura /s/ Andrew T. Tripp Alan Gura Kearns Davis Gura & Possessky, PLLC N.C. State Bar No N. Columbus Street, Suite 405 kdavis@brookspierce.com Alexandria, VA Andrew T. Tripp /Fax N.C. State Bar No atripp@brookspierce.com BROOKS, PIERCE, MCLENDON, Counsel for Plaintiffs HUMPHREY & LEONARD, L.L.P Wachovia Center 150 Fayetteville Street Raleigh, NC Telephone: Facsimile: Local Civil Rule 83.1 Counsel for Plaintiffs 10 Case 5:10-cv H Document 73 Filed 01/10/11 Page 14 of 15

15 CERTIFICATE OF SERVICE th I hereby certify that on this the 10 day of January, 2011, I electronically filed the foregoing Memorandum with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Andrew T. Tripp Walter W. Pitt, Jr. Kearns Davis Kevin G. Williams Brooks, Pierce, McLendon Bell, Davis & Pitt Humphrey & Leonard, L.L.P. P.O. Box P.O. Box 1800 Winston-Salem, NC Raleigh, NC Henry W. Jones, Jr. Mark A. Davis Lori P. Jones Special Deputy Attorney General Jordan Price Wall Gray Jones & North Carolina Dept. of Justice Carlton, PLLC P. O. Box Clark Avenue Raleigh, NC P.O. Box Raleigh, NC /s/alan Gura Counsel for Plaintiffs Case 5:10-cv H Document 73 Filed 01/10/11 Page 15 of 15

16 Page 1 1 of 228 DOCUMENTS UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM SAMUEL CHESTER, JR., Defendant-Appellant. No UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 2010 U.S. App. LEXIS December 4, 2009, Argued December 30, 2010, Decided PRIOR HISTORY: [*1] Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. (2:08-cr ). John T. Copenhaver, Jr., District Judge. DISPOSITION: VACATED AND REMANDED. COUNSEL: ARGUED: Edward Henry Weis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Elizabeth Dorsey Collery, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Gerald M. Titus, III, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. JUDGES: Before TRAXLER, Chief Judge, and AGEE and DAVIS, Circuit Judges. Chief Judge Traxler wrote the majority opinion, in which Judge Agee joined. Judge Davis wrote a separate opinion concurring in the judgment. OPINION BY: TRAXLER OPINION TRAXLER, Chief Judge: The sole issue presented in this appeal is whether William Samuel Chester's conviction for illegal possession of a firearm under 18 U.S.C. 922(g)(9) abridges his right to keep and bear arms under the Second Amendment in light of District of Columbia v. Heller, 128 S. Ct (2008). [*2] We vacate the decision below and remand for further proceedings. I. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Heller resolved a decades-long debate between those who interpreted the text to guarantee a private, individual right to bear arms and those who generally read it to secure a collective right to bear arms in connection with service in the state militia. 1 See Heller, 128 S. Ct. at See generally Parker v. District of Columbia, 478 F.3d 370, 379 (D.C. Cir. 2007) (explaining the collective right and individual right positions in the Second Amendment debate); United States v. Emerson, 270 F.3d 203, (5th Cir. 2001) (same). Interpreting the text in light of how it would have been understood by "ordinary citizens in the founding Case 5:10-cv H Document 73-1 Filed 01/10/11 Page 1 of 16

17 2010 U.S. App. LEXIS 26508, *2 Page 2 generation," Heller, 128 S. Ct. at 2788, the Supreme Court sided with proponents of the individual right view and held that the Second Amendment guaranteed protection of an individual right to possess and carry arms without regard to militia service. See id. at There are two basic manifestations [*3] of the collective-right view of the Second Amendment. The first model understands the Second Amendment simply to "empower state governments to arm militias," while the second model "argues that individuals have a right to own and possess firearms under the Second Amendment, but only insofar as it is connected with state militia service." See Kenneth A. Klukowski, Armed By Right: The Emerging Jurisprudence of the Second Amendment, 18 Geo. Mason U. Civ. Rts. L.J. 167, (2008). The Court began its textual analysis by explaining that the function of the Second Amendment's prefatory clause ("A well regulated Militia, being necessary to the security of a free State") is merely to announce a purpose for the command given by the operative clause ("the right of the people to keep and bear Arms, shall not be infringed")--"apart from that clarifying function, [the] prefatory clause does not limit or expand the scope of the operative clause." Id. at The operative clause, Heller concluded, "guarantee[s] the individual right to possess and carry weapons in case of confrontation," a meaning that "is strongly confirmed by the historical background of the Second Amendment." Id. at [*4] Consideration of the historical sources was important because, as Heller explained, "the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right." Id. Finally, the Court explained why the prefatory clause was consistent with an individual right interpretation of the operative clause: The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution.... It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. Id. at It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy [*5] the citizens' militia by taking away their arms was the reason that right-unlike some other English rights-was codified in a written Constitution. 2 The collective versus individual right debate turned largely on the relationship between the two clauses. "[I]ndividual right theorists say that the operative clause's effect is unmodified by the civic purpose announced in the prefatory clause,... while collective right theorists claim that the prefatory clause limits the scope of the Amendment... [to] the perpetuation of the militia system." See Klukowski, Armed by Right, supra, at Significantly, Heller recognized that the right to keep and bear arms, like other Constitutional rights, is limited in scope and subject to some regulation: "[W]e do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." Id. at 2799; see id. at 2816 ("From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever [*6] and for whatever purpose."). One specific limitation recognized in Heller concerned the types of weapons protected by the Second Amendment. In accordance "with the historical understanding of the scope of the right," the Second Amendment protected only weapons "typically possessed by law-abiding citizens for lawful purposes." Id. at 2816; see id. at 2817 (explaining that the Second Amendment protected "the right to keep and carry arms... in common use at the time") (internal quotation marks omitted). Case 5:10-cv H Document 73-1 Filed 01/10/11 Page 2 of 16

18 2010 U.S. App. LEXIS 26508, *6 Page 3 The other type of limitation identified in Heller involved what the Supreme Court termed "presumptively lawful regulatory measures," id. at 2817, n.26, although Heller did not explain why the listed regulations are presumptively lawful: [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Id. at Although the Court expressly declined to "undertake an exhaustive historical analysis... of the full scope [*7] of the Second Amendment," id. at 2816, it clearly staked out the core of the Second Amendment. Indeed, Heller explained that "whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at The Supreme Court reiterated, without further explanation, these presumptively valid limitations in McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010). In light of these principles, the Supreme Court invalidated two District of Columbia statutes at issue in Heller. First, Heller invalidated the District's total ban on the possession of handguns, concluding that such a complete ban--which extended "to the home, where the need for defense of self, family, and property is most acute[,]"--was incompatible with the Second Amendment "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." Id. at Although the Court acknowledged that rational-basis scrutiny would be inappropriate, see id. at 2817, n.27, it declined to choose the proper level of scrutiny for Second Amendment challenges. Second, Heller [*8] concluded that the District's requirement that citizens keep their firearms in an inoperable condition "[made] it impossible for citizens to use [firearms] for the core lawful purpose of self-defense." Id. at II. In October 2007, officers from the Kanawha County, West Virginia, Sheriff's Department responded to a 911 call reporting a domestic disturbance at Chester's residence. Chester's wife reported to the officers that Chester grabbed her throat and threatened to kill her after she caught him receiving the services of a prostitute on their property. In a subsequent search of the home, officers recovered a 12-gauge shotgun in the kitchen pantry and a 9mm handgun in the bedroom. Chester admitted both firearms belonged to him. In May 2008, as a result of this incident, Chester was indicted for possessing firearms after having been convicted "of a misdemeanor crime of domestic violence" in violation of 18 U.S.C. 922(g)(9). The indictment charged that in February 2005, Chester had been convicted in Kanawha County Magistrate Court of domestic assault and battery, a misdemeanor offense under West Virginia law. See W. Va. Code (a) and (b). Chester conceded that the 2005 domestic [*9] assault and battery offense qualified as a predicate "misdemeanor crime of domestic violence" under 922(g)(9). 4 4 For purposes of 18 U.S.C. 922(g)(9), a "misdemeanor crime of domestic violence" is defined as an offense that "is a misdemeanor under Federal, State, or Tribal law" and "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse... of the victim." 18 U.S.C. 921(a)(33)(a). Chester moved to dismiss the indictment, arguing that 922(g)(9), both on its face and as applied to him in this instance, violated his Second Amendment right to keep and bear arms under Heller. Seizing upon Heller's list of "presumptively lawful regulatory measures" including "longstanding prohibitions on the possession of firearms by felons and the mentally ill," 128 S. Ct. at 2817 & n.26, the district court reasoned by analogy that "the prohibition by Congress as embodied in 922(g)(9) of the possession of a firearm by a misdemeanant who has committed a crime of domestic violence is a lawful exercise by the government of its regulatory authority notwithstanding the Second Amendment." United States v. Chester, [*10] No. 2: , 2008 WL , at *2 (S.D.W.Va. Oct. 7, 2008). The district court concluded that, like the felon dispossession provision set forth in 922(g)(1), the prohibition of firearm possession Case 5:10-cv H Document 73-1 Filed 01/10/11 Page 3 of 16

19 2010 U.S. App. LEXIS 26508, *10 Page 4 by domestic violence misdemeanants is a danger-reducing regulation designed "to protect family members and society in general from potential [violence]." Id. In fact, the district court believed that, if anything, "the need to bar possession of firearms by domestic violence misdemeanants" is "often far greater than that of the similar prohibition of 922(g)(1) on those who commit nonviolent felonies." Id. Thus, the district court denied the motion to dismiss the indictment, and Chester entered a conditional guilty plea, reserving his right to raise on appeal the application of the Second Amendment. Chester then filed this appeal. In February 2010, we vacated the judgment and remanded in an unpublished opinion. See United States v. Chester, No , 367 Fed. Appx. 392, 2010 WL (4th Cir. Feb. 23, 2010) (per curiam). We declined to find 922(g)(9) valid by analogy based on Heller's "presumptively lawful" language, and we remanded for the district court to conduct an analysis [*11] of whether 922(g)(9) could be "'independently justified'" in light of Heller. Id. at 398. Our approach followed that taken in United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), vacated, 614 F.3d 638 (7th Cir. 2010) (en banc), a panel decision that was vacated by the Seventh Circuit for en banc review at about the same time that we released our opinion in Chester. In Skoien, the defendant was convicted under 18 U.S.C. 922(g)(9) for illegally possessing a shotgun that he claimed to have kept for hunting purposes. The Skoien panel reasoned that because "the core right of self-defense identified in Heller [was] not implicated," intermediate scrutiny was the appropriate standard to apply to the defendant's Second Amendment challenge to 922(g)(9). Id. at 805. The panel voted to remand the case to give the government an opportunity to carry its burden imposed by the intermediate constitutional framework: Under intermediate scrutiny, the government need not establish a close fit between the statute's means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely [*12] on Heller's reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that 922(g)(9) therefore passes constitutional muster. That's not enough. Id. at Similarly, we remanded Chester's appeal for clarification of the precise contours of his Second Amendment claim--a necessary step in determining the appropriate standard of constitutional scrutiny to apply--and for development of the record under the appropriate means-end framework. See Chester, 2010 WL , at *6. We stopped short, however, of identifying the proper level of scrutiny, leaving that task to the district court on remand. After we issued the unpublished Chester opinion, the government filed a petition for panel rehearing in light of the fact that the Skoien panel decision had been vacated by the Seventh Circuit en banc. While Chester's petition for rehearing was pending, the Seventh Circuit issued its en banc decision in Skoien, rejecting the Second Amendment challenge to 922(g)(9) on the basis that "logic and data" demonstrate "a substantial relation between 922(g)(9) and [an important governmental] objective." 614 F.3d at 642. We now grant panel rehearing, vacate our initial [*13] opinion and reissue our decision to provide district courts in this Circuit guidance on the framework for deciding Second Amendment challenges. III. We turn first to the question of how to evaluate Chester's Second Amendment challenge to 922(g)(9). To the extent Heller provides an answer to this question, it would be found in the Court's truncated discussion of the limitations on the right to bear arms preserved by the Second Amendment. As noted previously, Heller recognized that the pre-existing right guaranteed by the Second Amendment "was not unlimited, just as the First Amendment's right of free speech was not." Heller, 128 S. Ct. at 2799; see id. at And because "it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a preexisting right," id. at 2797, determining the limits on the scope of the right is necessarily a matter of historical inquiry. Heller declined to "undertake an exhaustive historical analysis... of the full scope of the Second Amendment," id. at 2816, but did identify one specific historical limitation as to which arms a citizen had the right to bear. In accordance "with the historical understanding [*14] of the scope of the right," the Second Amendment protected only weapons "typically possessed by law-abiding Case 5:10-cv H Document 73-1 Filed 01/10/11 Page 4 of 16

20 2010 U.S. App. LEXIS 26508, *14 Page 5 citizens for lawful purposes." Id. at 2816; see id. at 2817 (explaining that the Second Amendment protected "the right to keep and carry arms.. in common use at the time") (internal quotation marks omitted). The Court found support for this limitation in "'the historical tradition of prohibiting the carrying of dangerous and unusual weapons.'" Id. at Thus, a citizen's right to carry or keep sawed-off shotguns, for instance, would not come within the ambit of the Second Amendment. See id. at Having acknowledged that the scope of the Second Amendment is subject to historical limitations, the Court cautioned that Heller should not be read "to cast doubt on longstanding prohibitions" such as "the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." Id. at Heller described its exemplary list of "longstanding prohibitions" as "presumptively lawful regulatory measures," id. at 2817, n.26, without alluding to any historical evidence that the right to keep [*15] and bear arms did not extend to felons, the mentally ill or the conduct prohibited by any of the listed gun regulations. It is unclear to us whether Heller was suggesting that "longstanding prohibitions" such as these were historically understood to be valid limitations on the right to bear arms or did not violate the Second Amendment for some other reason. See United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (concluding that Heller "identified limits deriving from various historical restrictions on possessing and carrying weapons," including the felon dispossession provision, that "were left intact by the Second Amendment"). Federal felon dispossession laws, for example, were not on the books until the twentieth century, and the historical evidence and scholarly writing on whether felons were protected by the Second Amendment at the time of its ratification is inconclusive. But even if the listed regulations were not historical limitations on the scope of the Second Amendment, the Court could still have viewed the regulatory measures as "presumptively lawful" if it believed they were valid on their face under any level of means-end scrutiny applied. 5 5 Other courts have found [*16] Heller's list of "presumptively lawful" firearm regulations susceptible to two meanings. See United States v. Marzzarella, 614 F.3d 85, 91 (3rd Cir. 2010) ("We recognize the phrase 'presumptively lawful' could have different meanings under newly enunciated Second Amendment doctrine. On the one hand, this language could be read to suggest the identified restrictions are presumptively lawful because they regulate conduct outside the scope of the Second Amendment. On the other hand, it may suggest the restrictions are presumptively lawful because they pass muster under any standard of scrutiny."); Skoien, 587 F.3d at 808 ("[I]t is not entirely clear whether this language should be taken to suggest that the listed firearms regulations are presumed to fall outside the scope of the Second Amendment right as it was understood at the time of the framing or that they are presumptively lawful under even the highest standard of scrutiny applicable to laws that encumber constitutional rights."). Some courts have treated Heller's listing of "presumptively lawful regulatory measures," for all practical purposes, as a kind of "safe harbor" for unlisted regulatory measures, such as 18 U.S.C. 922(g)(9), [*17] which they deem to be analogous to those measures specifically listed in Heller. See, e.g., United States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010) ("We see no reason to exclude 922(g)(9) from the list of long-standing prohibitions on which Heller does not cast doubt."). This approach, however, approximates rational-basis review, which has been rejected by Heller. See Heller, 128 S. Ct. at 2817, n.27. In fact, the phrase "presumptively lawful regulatory measures" suggests the possibility that one or more of these "longstanding" regulations "could be unconstitutional in the face of an as-applied challenge." United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010). In view of the fact that Heller ultimately found the District's gun regulations invalid "under any standard of scrutiny," it appears to us that the Court would apply some form of heightened constitutional scrutiny if a historical evaluation did not end the matter. The government bears the burden of justifying its regulation in the context of heightened scrutiny review; using Heller's list of "presumptively lawful regulatory measures" to find 922(g)(9) constitutional by analogy would relieve the government of its [*18] burden. Thus, a two-part approach to Second Amendment claims seems appropriate under Heller, as explained by the Third Circuit Court of Appeals, see Marzzarella, 614 Case 5:10-cv H Document 73-1 Filed 01/10/11 Page 5 of 16

21 2010 U.S. App. LEXIS 26508, *18 Page 6 F.3d at 89, and Judge Sykes in the now-vacated Skoien panel opinion, see 587 F.3d at The first question is "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." Id. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. See Heller, 128 S. Ct. at If it was not, then the challenged law is valid. See Marzzarella, 614 F.3d at 89. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny. See id. Heller left open the issue of the standard of review, rejecting only rational-basis review. Accordingly, unless the conduct at issue is not protected by the Second Amendment at all, the Government bears the burden of justifying the constitutional validity of the law. A. Under this approach, the first question is whether [*19] 922(g)(9) burdens or regulates conduct that comes within the scope of the Second Amendment--i.e., whether the possession of a firearm in the home by a domestic violence misdemeanant is protected by the Second Amendment. Cf. Marzzarella, 615 F.3d at 89 ("Our threshold inquiry, then, is whether [the challenged law] regulates conduct that falls within the scope of the Second Amendment. In other words, we must determine whether the possession of an unmarked firearm in the home is protected by the right to bear arms."). Section 922(g)(9), like the felon-dispossession provision set forth in 922(g)(1), permanently disarms an entire category of persons. Thus, we are seeking to determine whether a person, rather than the person's conduct, is unprotected by the Second Amendment. See Skoien, 614 F.3d at 649 (Sykes, J., dissenting) (framing the threshold question as "whether persons convicted of a domestic-violence misdemeanor are completely 'outside the reach' of the Second Amendment as a matter of founding-era history and background legal tradition"). In this case, the government has not taken the position that persons convicted of misdemeanors involving domestic violence were altogether excluded [*20] from the Second Amendment as it was understood by the founding generation. Moreover, it appears to us that the historical data is not conclusive on the question of whether the founding era understanding was that the Second Amendment did not apply to felons. See Williams, 616 F.3d at 692 (noting that "[t]he academic writing on the subject of whether felons were excluded from firearm possession at the time of the founding is inconclusive at best" (internal quotation marks omitted)); Skoien, 614 F.3d at (Sykes, J., dissenting) ("[S]cholars disagree about the extent to which felons-let alone misdemeanants-were considered excluded from the right to bear arms during the founding era.... We simply cannot say with any certainty that persons convicted of a domestic-violence misdemeanor are wholly excluded from the Second Amendment right as originally understood."); United States v. McCane, 573 F.3d 1037, 1048 (10th Cir. 2009) (Tymkovich, J., concurring) ("[T]he felon dispossession dictum may lack the 'longstanding' historical basis that Heller ascribes to it. Indeed, the scope of what Heller describes as 'longstanding prohibitions on the possession of firearms by felons'... is [*21] far from clear."). Of course, we are dealing in this appeal not with felons but people who have been convicted of domestic-violence misdemeanors. If the historical evidence on whether felons enjoyed the right to possess and carry arms is inconclusive, it would likely be even more so with respect to domestic-violence misdemeanants. The federal provision disarming domestic-violence misdemeanants is of recent vintage, having been enacted in 1996 as part of the Lautenberg Amendment to the Gun Control Act of See Pub. L. No , 658, 110 Stat. 3009, to -372 (1996). By contrast, the federal felon dispossession provision has existed in some form or another since the 1930s, and thus there is a much larger body of scholarly work considering the question of whether felons were originally excluded from the protection afforded by the Second Amendment. Commentators are nonetheless divided on the question of the categorical exclusion of felons from Second Amendment protection. Compare C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol'y 695, 714 (2009) (reviewing founding-era precedents and explaining that, "much like the American authorities for [*22] a century and a half after the Second Amendment's adoption, the actual English antecedents point against lifetime total disarmament of all 'felons,' but do support lesser limitations"), and Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1376 (2009) (explaining that because state and federal "felon Case 5:10-cv H Document 73-1 Filed 01/10/11 Page 6 of 16