Case 1:15-cv-00162-CKK Document 54 Filed 03/07/16 Page 1 of 31

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
BRIAN WRENN, et al.,
Plaintiffs
v.

Civil Action No. 15-162 (CKK)

DISTRICT OF COLUMBIA, et al.,

Defendants
MEMORANDUM OPINION and ORDER
(March 7, 2016)
In this case, Plaintiffs Brian Wrenn, Joshua Akery, Tyler Whidby, and the Second
Amendment Foundation, Inc., challenge several provisions of the District of Columbias
licensing scheme for carrying handguns in public, including the permissive nature of the scheme
and the good reason/other proper reason requirement for obtaining a concealed carry handgun
license. Plaintiffs claim that the challenged requirements violate their rights under the Second
Amendment to the Constitution to keep and bear Arms. Before the Court is Plaintiffs [6]
Motion for Preliminary Injunction. Plaintiffs ask the Court to enter an order enjoining
Defendants District of Columbia and Cathy Lanier, Chief of Police of the District of Columbias
Metropolitan Police Department, from enforcing the good reason/other proper reason
requirement against the individual Plaintiffs and against the members of the Second Amendment
Foundation and from denying a concealed carry license to anyone who satisfies the applicable
statutory criteria for such licenses, such as those pertaining to the suitability of the license holder,
as explained in further depth below.

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Upon consideration of the pleadings, 1 the relevant legal authorities, and the record for
purposes of this motion, the Court DENIES Plaintiffs [6] Motion for Preliminary Injunction.
The Court concludes that, even assuming without deciding for the purposes of this motion alone
that the Second Amendment includes a right to carry arms publicly in the District of Columbia, 2
Plaintiffs have not met their burden of showing a likelihood of success on the merits. With
respect to the other equitable factors the Court must consider in evaluating a motion for a
preliminary injunction, the Court concludes that Plaintiffs have satisfied the irreparable harm
factor in light of their allegation of a constitutional violation, but that Plaintiffs have not met
their burden of showing that the equities tip in their favor or that the issuance of an injunction
would be in the public interest. Upon assessing these four factors taken together, the Court
determines that Plaintiffs have not met their burden of showing that a preliminary injunction is
warranted.

The Courts consideration has focused on the following documents:

Pls. Mot. for Preliminary Injunction (Pls. Mot.), ECF No. 6;

Defs. Oppn to Pls. Mot. (Defs. Oppn), ECF No. 48;
Pls. Mem. of Points & Auth. in Reply to Defs. Oppn (Pls. Reply), ECF No. 51; and
Defs. Surreply, ECF No. 53.
In addition, the Court acknowledges the amicus briefs of Everytown for Gun Safety (Everytown
Amicus Br.), ECF No. 49, and the Brady Center to Prevent Gun Violence (Brady Amicus Br.),
ECF No. 47, both in support of Defendants.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f). The Court notes that, because
Plaintiffs raised arguments in their Reply brief that they had not raised earlier, the Court provided
Defendants a short additional period to respond to those arguments in a surreply. The Court finds
that doing so is in the interest of justice and will not prejudice the parties. See LCvR 65.1(d).
2

The Court reiterates: this assumption has no implications regarding the merits of the arguments
regarding the scope of rights under Second Amendment.

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I. BACKGROUND
The Court provides a brief review of the background necessary to resolve the pending
motion for a preliminary injunction. Pursuant to District of Columbia law, [n]o person shall
carry within the District of Columbia either openly or concealed on or about their person, a
pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous
weapon. 3 D.C. Code 22-4504(a). A pistol is defined as any firearm originally designed to
be fired by use of a single hand or with a barrel less than 12 inches in length. Id.
7-2501.01(12); see id. 22-4501(6) (cross-reference). The terms pistol and handgun,
therefore, are used interchangeably in this opinion. Under the following provision of the District
of Columbia Code, which became effective on June 16, 2015, the Chief of Police may now issue
licenses for the concealed carrying of handguns in public:
The Chief of the Metropolitan Police Department (Chief) may, upon the
application of a person having a bona fide residence or place of business within
the District of Columbia, or of a person having a bona fide residence or place of
business within the United States and a license to carry a pistol concealed upon
his or her person issued by the lawful authorities of any State or subdivision of the
United States, issue a license to such person to carry a pistol concealed upon his
or her person within the District of Columbia for not more than 2 years from the
date of issue, if it appears that the applicant has good reason to fear injury to his
or her person or property or has any other proper reason for carrying a pistol,
and that he or she is a suitable person to be so licensed.
3

A person with a valid firearm registration is not barred from carrying that firearm in the
following circumstances:
(1) Within the registrants home;
(2) While it is being used for lawful recreational purposes;
(3) While it is kept at the registrants place of business; or
(4) While it is being transported for a lawful purpose as expressly authorized by
District or federal statute and in accordance with the requirements of that statute.
D.C. Code 22-4504.01. Similarly, D.C. law allows the transportation of firearms subject to
certain conditions not relevant here. See id. 22-4504.02.

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D.C. Code 22-4506(a) (emphasis added). It is the permissive nature of the licensing scheme
and the penultimate condition to the licensing schemeboth italicized abovethat are
challenged in this action. For reasons of verbal economy and simplicity, the Court refers to the
penultimate combined licensing condition as the good reason/other proper reason requirement
or simply as the good reason requirement. District of Columbia law further instructs the Chief
of Police to develop rules to implement the licensing provision. Id. 7-2509.11. Among other
categories of rules the Chief of Police is mandated to develop, the Chief of Police must
establish criteria for determining when an applicant has satisfied the criteria stated in section
22-4506(a). With respect to the requirement that an applicant has [d]emonstrated a good reason
to fear injury to his or her person, those rules shall at a minimum require a showing of a special
need for self-protection distinguishable from the general community as supported by evidence of
specific threats or previous attacks that demonstrate a special danger to the applicants life. Id.
7-2509.11(1)(A) (emphasis added). With respect to the alternative requirement that an
applicant has [d]emonstrated any other proper reason for carrying a concealed pistol, those
rules shall at a minimum include types of employment that require the handling of cash or other
valuable objects that may be transported upon the applicants person. Id. 7-2509.11(1)(B)
(emphasis added).
Pursuant to the parameters for the licensing scheme stated in the D.C. Code, Chief of
Police Cathy Lanier issued the following regulations elucidating the requirement of good reason
to fear injury to person or property:
2333.1

A person shall demonstrate a good reason to fear injury to his or her

person by showing a special need for self-protection distinguishable
from the general community as supported by evidence of specific
threats or previous attacks which demonstrate a special danger to the
applicants life.

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2333.2

For the purposes of satisfying the specifications of 2333.1, a person

shall allege, in writing, serious threats of death or serious bodily harm,
any attacks on his or her person, or any theft of property from his or
her person. The person shall also allege that the threats are of a nature
that the legal possession of a pistol is necessary as a reasonable
precaution against the apprehended danger.

2333.3

The person shall provide all evidence of contemporaneous reports to

the police of such threats or attacks, and disclose whether or not the
applicant has made a sworn complaint to the police or the courts of the
District of Columbia concerning any threat or attack.

2333.4

The fact that a person resides in or is employed in a high crime area

shall not by itself establish a good reason to fear injury to person or
property for the issuance of a concealed carry license.

D.C. Mun. Regs., tit. 24, 24-2333.1-4 (2015); see 62 D.C. Reg. 9781 (July 17, 2015). The
Chief of Police also promulgated the following regulation elucidating the other proper reason
alternative criterion:
A person may allege any other proper reason that the Chief may accept for
obtaining a concealed carry license which may include:
(a)
Employment of a type that requires the handling of large amounts
of cash or other highly valuable objects that must be transported upon the
applicants person; or
(b)
The need for a parent, son, daughter, sibling, or other adult
member of the immediate family to provide protection of a family member
who is physically or mentally incapacitated to a point where he or she
cannot act in defense of himself or herself, and the family member who is
physically or mentally incapacitated can demonstrate a good reason to fear
injury to his or her person by showing a special need for self-protection
distinguishable from the general community as supported by evidence of
specific threats or previous attacks which demonstrate a special danger to
the applicants life in the manner described in 2333.
D.C. Mun. Regs., tit. 24, 24-2334 (2015); see 62 D.C. Reg. 9781 (July 17, 2015). These
requirements are further implemented through the Concealed Carry Pistol Application developed
by the Metropolitan Police Department. See Pls. Mot., Ex. 6; see also Applying for a
Concealed Carry Pistol License, Metropolitan Police Department website, available at

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http://mpdc.dc.gov/page/applying-concealed-carry-pistol-license (including links to application

and associated instructions) (last visited March 2, 2016).
Essentially, the individual Plaintiffswho are members of the Second Amendment
Foundationclaim that they were denied concealed carry pistol licenses on the basis that they
did not demonstrate good reason to fear injury or other proper reason to justify such a
license. See Pls. Mot. at 6-9 (citing attached declarations). In addition, Plaintiffs state that other
members of the Second Amendment Foundation would qualify for a concealed carry license but
for the good reason/other proper reason requirement and that they have refrained from applying
for concealed carry licenses because they believe that doing so would be futile in light of the
applicable legal requirements. See Pls. Mot., Declaration of Alan Gottlieb, ECF No. 6-11, 7.
In this case, Plaintiffs argue that three aspects of the licensing scheme violate what they
claim is their Second Amendment right to carry handguns in public in the District of Columbia:
(1) the permissive nature of the schemethat the Chief of Police may issue a license rather than
being required to issue a license (e.g., shall issue) upon an applicants satisfaction of the
relevant statutory and regulatory criteria; (2) the good reason/other proper reason requirement;
and (3) the rules promulgated to elucidate the good reason/other proper reason requirement,
including those mandated by the applicable D.C. Code provisions, see D.C. Code 7-2509.11,
and those promulgated by the Chief of Police, see D.C. Mun. Reg., tit. 24, 24-2333, 2334.
Compl. 40. Plaintiffs claim that these requirements are unconstitutional on their face and as
applied to the individual Plaintiffs and to other members of the Second Amendment Foundation
that would qualify for a concealed carry license were it not for the good reason/other proper
reason requirement. Id.

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Through Plaintiffs motion for a preliminary injunction, they ask the Court to enter the
following two-pronged injunction:
[1] Defendants, their officers, agents, servants, employees, and all persons in
active concert or participation with them who receive actual notice of the
injunction, are enjoined from denying handgun carry licenses to applicants who
meet the requirements of D.C. Code 22-4506(a) and all other current
requirements for the possession and carrying of handguns under District of
Columbia law; moreover,
[2] Defendants, their officers, agents, servants, employees, and all persons in
active concert or participation with them who receive actual notice of the
injunction, are enjoined from enforcing the requirement of D.C. Code 224506(a) that handgun carry license applicants have a good reason to fear injury
to his or her person or property or has any other proper reason for carrying a
pistol, including, but not limited to, the manner in which that requirement is
defined by D.C. Code 7-2509.11 and 24 D.C.M.R. 2333.1, 2333.2, 2333.3,
2333.4 and 2334.1, against Brian Wrenn, Joshua Akery, Tyler Whidby, and other
[Second Amendment Foundation] members.
Pls. Mot., Proposed Order, ECF No. 6-12. In essence they seek first to enjoin Defendants from
enforcing the good reason/other proper reason requirement (as implemented in the Districts
regulations) against the individual Plaintiffs and against other members of the Second
Amendment Foundation. They also seek to enjoin Defendants from denying a concealed carry
license pistol application upon a showing that any applicant satisfies the requirements that
remain applicable to them, including those requirements regarding the applicants suitability, 4

Under the regulation promulgated pursuant to D.C. Code 24-5406(a), a person is suitable to
obtain a concealed carry license if that person meets all of the following requirements:
(a)
Meets all of the requirements for a person registering a firearm pursuant to
the Act;
(b)
Has completed a firearms training course, or combination of courses,
conducted by an instructor (or instructors) certified by the Chief;
(c)
Is not presently an alcoholic, addict, or habitual user of a controlled
dangerous substance, unless the habitual use of a controlled dangerous substance
is under licensed medical direction;
7

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place of residence, and licensure in other jurisdictions. In short, under the injunction sought by
Plaintiffs, the good reason/other proper reason requirement would not apply to the individual
Plaintiffs or to members of the Second Amendment Foundation; but it would apply to other
applicants. With respect to all applicants, as a result of the injunction Plaintiffs seek, Defendants
would be required to issue a license to any applicant upon a showing of compliance with the
applicable requirements, such as suitability, place of residence, and licensure in other
jurisdictions; that is, Defendants could not refuse to issue a license once an applicant has shown
that they have met all of those requirements.
Previously, Senior Judge Frederick J. Scullin, Jr., of the Northern District of New York,
was assigned to this case and issued the preliminary injunction sought by Plaintiffs. See Wrenn v.
D.C., 107 F. Supp. 3d 1, 14 (D.D.C. 2015) vacated, 808 F.3d 81 (D.C. Cir. 2015). That injunction
was vacated by the D.C. Circuit Court of Appeals in light of its conclusion that the assignment of
the case to Judge Scullin exceeded his jurisdictional authority under the applicable statutory
provisions. See Wrenn v. D.C., 808 F.3d 81, 84 (D.C. Cir. 2015). Upon the issuance of the Court
of Appeals mandate, this case was reassigned to this undersigned judge on February 9, 2016.
The Court provided the parties an opportunity to supplement and replace their original briefing

(d)
Has not exhibited a propensity for violence or instability that may
reasonably render the persons possession of a concealed pistol a danger to the
person or another; and
(e)
Does not currently suffer nor has suffered in the previous five (5) years
from any mental disorder, illness or condition that creates a substantial risk that he
or she is a danger to himself or herself or others, or if the Chief has determined
that the person is suitable based upon documentation provided by the person
pursuant to 2337.3.
D.C. Mun. Regs., tit. 24, 24-2335 (2015); see 62 D.C. Reg. 9781 (July 17, 2015). Plaintiffs do
not challenge these requirements in this action.
8

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regarding the pending motion, and that briefing was complete as of March 2, 2016. The motion
for preliminary injunction is now ripe for resolution.
II. LEGAL STANDARD
A preliminary injunction is an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief. Sherley v. Sebelius, 644 F.3d 388, 392
(D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see
also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) ([A] preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion. (emphasis in original; quotation marks omitted)). A
plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the
merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that
the balance of equities tips in his favor, and [4] that an injunction is in the public interest.
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392
(quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). When
seeking a preliminary injunction, the movant has the burden to show that all four factors, taken
together, weigh in favor of the injunction. Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir.
2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)).
The four factors have typically been evaluated on a sliding scale. Davis, 571 F.3d at 1291.
Under this sliding-scale framework, [i]f the movant makes an unusually strong showing on one
of the factors, then it does not necessarily have to make as strong a showing on another factor.
Id. at 1291-92.
The Court notes that it is not clear whether this Circuits sliding-scale approach to
assessing the four preliminary injunction factors survives the Supreme Courts decision in

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Winter. See Save Jobs USA v. U.S. Dept of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C.
2015). Several judges on the D.C. Circuit Court of Appeals have read Winter at least to suggest
if not to hold that a likelihood of success is an independent, free-standing requirement for a
preliminary injunction. Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring
opinion)). However, the Court of Appeals has yet to hold definitively that Winter has displaced
the sliding-scale analysis. See Sherley, 644 F.3d at 393; see also Save Jobs USA, 105 F. Supp. 3d
at 112. In any event, this Court need not resolve the viability of the sliding-scale approach today
as the Court determines that a preliminary injunction is not appropriate even under the less
demanding sliding-scale analysis. Sherley, 644 F.3d at 393. 5
III. DISCUSSION
The Court now applies the four-factor analysis for evaluating a motion for preliminary
injunction as stated above. The Court, in turn, considers (1) Plaintiffs likelihood of success on
the merits, (2) the likelihood of irreparable harm, (3) the balance of the equities, and (4) whether
an injunction is in the public interest. See Aamer, 742 F.3d at 1038. Each side in this case
contends that each of the four factors weighs in its favor. The Court begins with the first prong,
the likelihood of success on the merits.

The Court also notes that Defendants argue that a heightened standard applies because this case
concerns a mandatory rather prohibitory injunction and because Plaintiffs seek to change,
rather than maintain, the status quo. (Plaintiffs contest these characterizations.) This Circuit has
yet to adoptor to rejectthe applicability of a heightened standard. See Davis v. Billington, 76
F. Supp. 3d 59, 69 n.15 (D.D.C. 2014). In any event, because the Court finds that Plaintiffs have
failed to satisfy the unmodified standard for preliminary injunctions, there is no need to consider
the consequences of applying a heightened standard for mandatory injunctions in these
circumstances.
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A. Likelihood of Success on the Merits

In Heller v. District of Columbia (Heller II), the D.C. Circuit Court of Appeals adopted
a two-step approach to determining the constitutionality of the Districts gun laws, noting a
similar scheme had been adopted by other circuits. 670 F.3d 1244, 1252 (D.C. Cir. 2011) (citing
cases); see also Heller v. District of Columbia (Heller III), 801 F.3d 264, 272 (D.C. Cir. 2015).
The Court of Appeals described the framework as follows: We ask first whether a particular
provision impinges upon a right protected by the Second Amendment; if it does, then we go on to
determine whether the provision passes muster under the appropriate level of constitutional
scrutiny. Heller II, 670 F.3d at 1252. In turn, to determine whether a provision impinges on a
right protected by the Second Amendment, a court must identify whether a particular regulation
is longstanding, which would then be presumed not to burden conduct within the scope of the
Second Amendment. Id. at 1253. However, [a] plaintiff may rebut this presumption by
showing the regulation does have more than a de minimis effect upon his right. Id. This Court is
bound to apply that framework to the challenges raised in this action.
The parties vigorously dispute the history of regulations pertaining to the public carrying
of arms, spanning from the English Statute of Northampton of 1328 to regulations from early
American history and beyond. Defendants argue thateven if the Second Amendment has some
application outside the homethe regulatory scheme in question is beyond the scope of the
Second Amendment. The Court need not wade into that contentious dispute today. In order to
resolve this matter in an expeditious manner, the Court will assume, without deciding, solely for
the purposes of resolving the pending motion and without suggesting anything about the
underlying merits, that the Second Amendment protects a right to carry arms publicly in the
District of Columbia. The Court does so because, even if the Second Amendments protections
are applicable to that extent, the Court concludes that Plaintiffs have not met their burden of
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showing a likelihood of success on the merits. As such, the Court will reserve any consideration
of the scope of the Second Amendment, insofar as necessary, for a later date when the Court
considers this case on the merits. 6
1. Level of Scrutiny to Apply
As explained above, upon concluding that a particular regulatory provision impinges
upon a right protected by the Second Amendmentas the Court assumes without deciding
herethe Court must then determine whether the provision passes muster under the appropriate
level of constitutional scrutiny. Heller II, 670 F.3d at 1252. Guided by the Court of Appeals
analysis in Heller II and persuaded by the thorough analysis of other good reason licensing
schemes that has been conducted by other Circuit Courts of Appeals, this Court concludes that,
insofar as the challenged requirements of the Districts licensing scheme impinge on a Second
Amendment right, those requirements warrant intermediate scrutiny.
In Heller II, the D.C. Circuit Court of Appeals considered a series of gun registration
requirements that it described as mak[ing] it considerably more difficult for a person lawfully to
acquire and keep a firearm, including a handgun, for the purpose of self-defense in the home
the core lawful purpose protected by the Second Amendment. Id. at 1255 (quoting District of
Columbia v. Heller (Heller I), 554 U.S. 570, 630 (2008)). The D.C. Circuit explained that the
level of scrutiny applicable under the Second Amendment surely depends on the nature of the

Taking this path through the issues presented is not breaking new ground. See Woollard v.
Gallagher, 712 F.3d 865, 876 (4th Cir. 2013) (We hew to a judicious course today, refraining
from any assessment of whether Marylands good-and-substantial-reason requirement for
obtaining a handgun permit implicates Second Amendment protections. That is, we merely
assume that the Heller right exists outside the home and that such right of Appellee Woollard has
been infringed. We are free to make that assumption because the good-and-substantial-reason
requirement passes constitutional muster under what we have deemed to be the applicable
standardintermediate scrutiny.)
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conduct being regulated and the degree to which the challenged law burdens the right. Id.
1257 (quoting United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010) and citing cases). After
canvassing other sources of authority regarding the choice of the level of scrutiny to apply, the
D.C. Circuit concluded that intermediate scrutiny was warranted for the gun registration laws in
question because they did not prevent[] an individual from possessing a firearm in his home or
elsewhere, whether for self-defense or hunting, or any other lawful purpose. Id. at 1258. It is
notable that the D.C. Circuit concluded that intermediate scrutiny was warranted for gun
registration laws which did not impinge on the ability of individuals to keep a firearm for the
purpose of self-defense in the homethe core lawful purpose protected by the Second
Amendment. Id. at 1255. This Court concludes that the same level of scrutiny is appropriate for
the regulations at issue in this case, whether or not the ability to carry handguns in public is
considered part of the core lawful purpose protected by the Second Amendment. Moreover, the
Supreme Court described the home in Heller I as the place where the need for defense of self,
family, and property is most acute, 554 U.S. at 628. The D.C. Circuit has reiterated this
emphasis on the home, stating that at the core of the Second Amendment is the right of lawabiding, responsible citizens to use arms in defense of hearth and home. Schrader v. Holder,
704 F.3d 980, 988 (D.C. Cir. 2013) (quoting Heller I, 554 U.S. at 635). Those descriptions give
strong support to the conclusion that the level of scrutiny for regulations governing public
carrying of handguns, including the good reason requirement at issue here, merit no higher level
of scrutiny than the intermediate scrutiny wielded by the D.C. Circuit in Heller II and Heller III.
In this case, the Court is considering a licensing scheme that restricts the ability of people
to carry handguns in public within the 68 square miles of the District of Columbia, but is in no
way a blanket prohibition on doing so. Cf. Moore v. Madigan, 702 F.3d 933, 941-42 (7th Cir.

13

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2012) (holding unconstitutional Illinoiss uniquely sweeping ban on carrying firearms in

public, characterized as the most restrictive gun law of any of the 50 states). Because the Court
is considering regulations on carrying firearms outside the home, rather than a prohibition on
doing so, the Court concludes that intermediate scrutiny is the appropriate level of scrutiny.
Indeed, three other Circuit Courts of Appeals have similarly concluded that intermediate scrutiny
is appropriate for good reason licensing schemes, if any level of scrutiny is warranted at all.
See Drake v. Filko, 724 F.3d 426, 435 (3d Cir. 2013) (applying intermediate scrutiny to New
Jerseys justifiable need requirement); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.
2013) (applying intermediate scrutiny to good-and-substantial-reason requirement for obtaining
Maryland handgun permit); Kachalsky v. Count of Westchester, 701 F.3d 81, 96-97 (2d Cir.
2012) (applying intermediate scrutiny to New York States proper cause requirement); see also
United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (holding that only intermediate
scrutiny is necessary with respect to laws that burden the right to keep and bear arms outside of
the home). Notably, the parties have characterized the licensing schemes at issue in these states
as may-issue licensing schemes in light of the discretion afforded to the respective licensing
authorities in issuing public carry licenses. 7 See Pls. Mot. at 12 n.1; Defs. Oppn, Defendants
Appx (DA) at 9. Moreover, Plaintiffs have not shown that the use of the language may in
the Districts licensing scheme, see D.C. Code 22-4506(a), has talismanic significance that

The Government Accountability Office has characterized may-issue states as ones where the
state applies discretion in granting permits to carry concealed handguns. Gun Control: States
Laws and Requirements for Concealed Carry Permits Vary Across the Nation, U.S. Government
Accountability Office, Report to Congressional Requesters, GAO-12-717, at 5 (July 2012)
(http://www.gao.gov/assets/600/592552.pdf). By contrast, the Government Accountability Office
characterizes shall-issue states as those where the [i]ssuing authorities are required to issue a
permit to an applicant that fulfills the objective statutory criteria if no statutory reason for denial
exists. Id.
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meaningfully distinguishes the scheme at issue in this case from the may-issue schemes
considered by Second Circuit, Third Circuit, and Fourth Circuit.
Critically, the Second Circuit, Third Circuit, and Fourth Circuit are the only Courts of
Appeals to have, thus far, addressed and definitively resolved the constitutionality of good
reason handgun licensing laws similar to the one at issue here. The Ninth Circuit Court of
Appeals has considered the constitutionality of the application of a good reason licensing
requirement but has not yet issued an opinion that is binding precedent at this time. In Peruta v.
County of San Diego, a panel of the Ninth Circuit Court of Appeals concluded that San Diegos
specific policy implementing the State of Californias good cause requirement violated the
Second Amendment right to bear arms in public under any level of scrutiny. 742 F.3d 1144, 1175
(9th Cir. 2014), rehg en banc granted, 781 F.3d 1106 (9th Cir. 2015). The full Ninth Circuit
subsequently granted rehearing en banc, instructing that the panel opinion shall not be cited as
precedent by or to any court of the Ninth Circuit. Peruta v. Cty. of San Diego, 781 F.3d 1106,
1106-07 (9th Cir. 2015). The en banc court heard oral argument on June 16, 2015, and has not
yet decided the case. The Court notes that Plaintiffs continue to rely on Peruta, even in their
recently submitted Reply brief as did the district court in Palmer v. District of Columbia, 59 F.
Supp. 3d 173 (D.D.C. 2014).
For all of these reasons, the Court concludes that, insofar as the challenged provisions of
the District of Columbias regulatory scheme burden Second Amendment rights, that scheme
regulating the public carrying of handguns in the District is subject to intermediate scrutiny. 8

Defendants argue that the long history of the regulation of public carrying of firearms further
supports the application of intermediate rather than strict scrutinyinsofar as public carrying is
within the scope of the Second Amendment right. See Kachalsky, 701 F.3d at 96 (history of
regulation of firearms in public supports application of intermediate scrutiny). However, the
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Before proceeding to the application of intermediate scrutiny, in order to determine whether

Plaintiffs have demonstrated a likelihood of success on the merits, the Court addresses arguments
made by Plaintiffs in support of standards other than intermediate scrutiny.
2. Plaintiffs Other Arguments
Plaintiffs present several arguments that suggest that intermediate scrutiny is not
applicable here. The Court addresses, and rejects, each in turn.
First, Plaintiffs argue that the Districts handgun licensing scheme is an unlawful prior
restraint. Defendants respond that first, the prior restraint doctrine is inapplicable outside of the
First Amendment context and second, even if applicable, it would not govern the challenged
scheme because the scheme does not vest the Chief of Police with unbridled discretion.
Because the Court agrees with Defendants that the prior restraint doctrine is not applicable in the
Second Amendment context, the Court need not consider Defendants alternative argument that
the challenged scheme does not give the Chief of Police unbridled discretion.
The authorities on which Plaintiffs rely do not support importing the prior restraint
doctrine into the Second Amendment context. Indeed, Plaintiffs acknowledge that no court has
applied the doctrine of prior restraint in the Second Amendment context. Pls. Reply at 23.
Plaintiffs argue that the absence of such case law is not surprising because Second Amendment
litigation is a relatively recent phenomenon. However, regardless of the merits of that
characterization, Plaintiffs have only raised this argument in a cursory manner, providing little
support for the Court to embrace this novel argument, particularly in the context of evaluating a
motion for a preliminary injunction. Nor do the sole authorities to which Plaintiffs cite support

Court need not assess that history at this stage of the litigation in order to conclude that
intermediate scrutiny is the proper variant of heightened scrutiny, if any, to apply in this case.
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the application of the doctrine of prior restraint in the Second Amendment context. In Staub v.
City of Baxley, the Supreme Court concluded that a municipal ordinance of the City of Baxley,
Georgia, that restricted freedom of speech impose[d] an unconstitutional prior restraint upon the
enjoyment of First Amendment. 355 U.S. 313, 325 (1958). The Supreme Court did characterize
the unconstitutional ordinance as lay[ing] a forbidden burden upon the exercise of liberty
protected by the Constitution. Id. (quoting Cantwell v. State of Connecticut, 310 U.S. 296, 307
(1940)). However, that general language in no way suggests the prior restraint doctrine ought to
be imported into every arena of liberties protected by the Constitution. 9
Moreover, it is highly persuasive that the three Circuit Courts of Appeals to have
considered the issue have rejected the application of the prior restraint doctrine to good reason
handgun licensing schemes. See Kachalsky, 701 F.3d at 91 (We are hesitant to import
substantive First Amendment principles wholesale into Second Amendment jurisprudence.)
(emphasis in original); Woollard, 712 F.3d at 883 n.11 (rejecting plaintiffs prior restraint
argument and citing analysis of Second Circuit in Kachalsky); Drake, 724 F.3d at 435 (rejecting
applicability of prior restraint doctrine). 10 Similarly, other courts have concluded that the
doctrine of prior restraint is inapplicable in the Second Amendment context. See Hightower v.
City of Boston, 693 F.3d 61, 80 (1st Cir. 2012) (concluding that First Amendment prior restraint
doctrine is a poor analogy for purposes of facial challenges under the Second Amendment and
9

Plaintiffs reliance on Kent v. Dulles, 357 U.S. 116, 123 (1958), is also misplaced. That case is
even farther afield: in Kent, the Supreme Court considered a statute that pertained to the
authority of the Secretary of State to issue passports, which implicated the rights of American
citizens to travel abroad. Id. at 117, 129. This case provides no support for Plaintiffs cursory
claim that the doctrine of prior restraint is applicable in the Second Amendment context.
10

As noted above, like the licensing scheme at issue here, the parties have characterized the
licensing schemes considered by the Second Circuit, the Third Circuit, and the Fourth Circuit in
these cases as may-issue schemes in light of the discretion afforded to the respective licensing
authorities in issuing public carry licenses.
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declining to apply prior restraint doctrine in Second Amendment context); Bolton v. Bryant, 71 F.
Supp. 3d 802, 817 (N.D. Ill. 2014) (declining to import prior restraint doctrine into Second
Amendment context); Young v. Hawaii, 911 F. Supp. 2d 972, 991 (D. Haw. 2012) (same).
Plaintiffs have not pointed to any authority suggesting a contrary conclusion, nor has the Court
found any.
Because the Court concludes that Plaintiffs have not presented any basis for applying the
doctrine of prior restraint in the Second Amendment context and because of the weight of the
case law against applying that doctrine in this context, the Court concludes that the prior restraint
doctrine simply has no applicability to the licensing scheme at issue. Accordingly, the Court need
not consider the parties arguments regarding the scope of discretion afforded to Defendants
under the challenged licensing scheme.
Second, Plaintiffs claim that the licensing is effectively a rationing scheme and therefore
must fail. The Court disagrees and concludes that there is no basis to conclude that the licensing
scheme is an unlawful rationing scheme. In Woollard, the Fourth Circuit explicitly rejected
Plaintiffs rationing argument, reasoning that it was not for the court to substitute [its] views for
the considered judgment of the General Assembly that the good-and-substantial-reason
requirement strikes an appropriate balance between granting handgun permits to those persons
known to be in need of self-protection and precluding a dangerous proliferation of handguns on
the streets of Maryland. 712 F.3d at 881. In their Reply, Plaintiffs primarily rely on the D.C.
Circuit Court of Appeals conclusion in Heller III that the Districts one-pistol-per month
purchasing limit did not survive intermediate scrutiny. See 801 F.3d at 280. However, the
conclusion that the one-pistol-per-month limit was unconstitutional resulted from the courts
assessment that [t]he District has not presented substantial evidence to support the conclusion

18

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that its prohibition on the registration of more than one pistol per registrant during any 30day
period, D.C. Code 72502.03(e), promotes a substantial governmental interest that would be
achieved less effectively absent the regulation. Heller III, 801 F.3d at 279-80 (quoting Rock
Against Racism, 491 U.S. at 782-83). In other words, the one-pistol-per-month limit was not
unconstitutional because any limitation on the rate at which people could purchase guns would
necessarily be unconstitutional; rather, the provision was unconstitutional simply because the
evidence presented did not support the fit of that rule with the ends identified by the District of
Columbia. See Heller v. D.C., No. 14-7071, 2016 WL 760940, at *1 (D.C. Cir. Feb. 26, 2016)
(Millett, J., concurring in denial of rehearing en banc) (emphasizing shortcomings in the record
before the Heller III court that undergirded that courts conclusions that certain provisions,
including the one-pistol-per-month provision, were unconstitutional). 11 In sum, the Court
concludes that the licensing scheme in question is not an unlawful rationing scheme. Therefore,
whether Plaintiffs claim regarding rationing is framed as a reason why intermediate scrutiny is
inapplicable or a reason why the licensing scheme does not survive intermediate scrutiny, their

11

Plaintiffs also rely on a statement of the Heller III court in support of their argument. There,
the court found that expert testimony that the most effective method of limiting misuse of
firearms is to limit the number of firearms present in a home does not justify restricting an
individuals undoubted constitutional right to keep arms (plural) in his or her home. 801 F.3d at
280. Notably, this expert testimony concerned firearms in the home generally and did not
specifically pertain to a monthly cap. As such, the Heller III court found the testimony
insufficient to justify a one-pistol-per-month cap. However, this statement does not support the
conclusion that it would be impossible to justify the monthly cap on the basis of different
evidence. Moreover, a right for a single individual to possess multiple weapons at home is
fundamentally different from the imposition of a good reason requirement on the licensing of
public carrying of concealed handguns. Therefore, the aforementioned statement in Heller III
addresses a completely different regulatory scheme from the one at issue here and does not
demonstrate that the regulations at issue here constitute an unlawful rationing scheme like the
one-pistol-per-month provision.
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rationing argument is unavailing. The Court, accordingly, proceeds to apply intermediate scrutiny
to the challenged licensing requirements.
3. Application of Intermediate Scrutiny
For the challenged rules to pass muster under intermediate scrutiny[,] the District must
show they are substantially related to an important governmental objective. Heller II, 670
F.3d at 1258 (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)). In other words, intermediate
scrutiny requires first, that [the challenged provision] promotes a substantial governmental
interest that would be achieved less effectively absent the regulation, and second, that the
means chosen are not substantially broader than necessary to achieve that interest. Heller III,
801 F.3d at 272 (quoting Heller II, 670 F.3d at 1258 (quoting Ward v. Rock Against Racism, 491
U.S. 781, 78283 (1989))). To meet the first requirement, the District must demonstrate that the
harms to be prevented by the regulation are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material way. Heller III, 801 F.3d at 272-73
(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 66264 (1994) (Turner I)). However, in
order to apply intermediate scrutiny with respect to the merits of a constitutional challenge, the
Court cannot review de novo the Districts evidence of the harm to be prevented and the likely
efficacy of the regulation in preventing that harm. Id. at 273. Rather, it is the Courts task to
determine only whether the District has drawn reasonable inferences based on substantial
evidence. Id. (quoting Turner I, 512 U.S. at 666). With respect to second requirement, the fit
between the challenged regulation and the asserted objective [need only] be reasonable, not
perfect. Schrader, 704 F.3d at 990 (quoting United States v. Marzzarella, 614 F.3d 85, 98 (3d
Cir. 2010) (alteration in original)).

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Defendants assert two interests in support of the challenged concealed carry licensing
scheme: preventing crime and promoting public safety. Defs. Oppn at 27. The D.C. Circuit has
already confirmed that both of these interests, which are in fact linked, qualify as substantial
governmental interests under the intermediate scrutiny standard. See Heller III, 801 F.3d at 274.
Therefore, upon reaching the merits, the question will be whether the District has, with regard
to each challenged [licensing] provision, offered substantial evidence from which it could
reasonably have concluded the provision will [prevent crime and promote public safety] in a
direct and material way. Id. at 275 (quoting Turner I, 512 U.S. at 664).
In considering Plaintiffs motion for a preliminary injunction, therefore, the Court must
assess whether Plaintiffs have shown that it is likely that Defendants will not be able to satisfy
that burden. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir.
2006) (It is an extraordinary remedy that should be granted only when the party seeking the
relief, by a clear showing, carries the burden of persuasion. (quoting Cobell v. Norton, 391
F.3d 251, 258 (D.C. Cir. 2004))). Before turning to the evidence that Defendants have identified
in support of the means-end fit in opposing the motion for preliminary injunction, the Court
notes that this standard effectively means that there is a high hurdle for Plaintiffs to surmount.
Indeed, as the D.C. Circuit has emphasized, this Court must ultimately assess the evidentiary
record assembled by the parties in order to determine whether the chosen means contribute to the
identified ends in a direct and material way, whether in one of the ways anticipated by the
D.C. Council or otherwise. Heller III, 801 F.3d at 275 (internal citation omitted). Indeed, in
Heller II, the Court of Appeals remanded the case to the district court in order to develop a fuller
record that would allow an assessment of the fit between means and ends. 670 F.3d at 1258.
Effectively, Plaintiffs must show that it is not likely that Defendants will be able to present

21

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evidence that will allow the Court to find that the District could have reasonably concluded that
the chosen means serve the identified ends in a direct and material way. Heller III, 801 F.3d at
275.
For present purposes, it is enough to say that Defendants have identified what appears to
be substantial evidence of connections between public carrying of gunsand associated
regulations on public carryingand impacts on crime and public safety. See Defs. Oppn at 2734; see also Brady Amicus Br. at 7-13 (discussing connections between public carrying of
firearms and public safety). However, the Court need not conduct an in-depth assessment of the
evidence of the means-ends fit presented by Defendants at this stage of the proceedings because,
while Plaintiffs assert that the challenged elements of the licensing scheme would not survive
intermediate scrutiny, see Pls. Mot. at 21, Plaintiffs submit only a cursory argument as to why
the scheme cannot survive intermediate scrutiny. See id. at 19-21; Pls. Reply at 23-24. But
Plaintiffs conclusory argument is insufficient to meet their burden at this phase of the
proceedings.
In Plaintiffs Reply, with the full panoply of Defendants arguments in support of the
licensing scheme before them, Plaintiffs only response in the context of intermediate scrutiny is
that Defendants are wrong to suggest deference to the legislature with respect to the fit between
the government interests identified and legislative means used to achieve those ends. Regardless
of the merits of the dispute on the precise quantum of legislative deference applicable, this
cursory argument is insufficient. Nowhere do Plaintiffs address the evidence on which the D.C.
Council relied in creating the licensing scheme or the additional evidence that Defendants have
identified that they would present in support of that scheme in this case. See Defs. Oppn at 2636. Instead, the gravamen of Plaintiffs argument appears to be that means-end scrutiny is

22

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inappropriate and that the licensing scheme is sufficiently destructive of Plaintiffs Second
Amendment rights that it cannot be countenanced at any level of scrutiny. 12 But the Court has
already concluded that intermediate scrutiny is appropriate and that it is necessary to examine the
ends identified by Defendants and the fit of the chosen means to those ends. Yet, Defendants
explanation of how the evidence supports their scheme is effectively met with silence from
Plaintiffs. In the end, without a substantive response to this evidence and its putative support for
the licensing, at this step, Plaintiffs cannot prevail on their claim that the licensing scheme fails
to survive intermediate scrutiny.
Although not dispositive of the issues before this Court, it is important that the Second
Circuit, the Third Circuit, and the Fourth Circuit have each concluded that the state versions of a
good reason requirement that each was consideringNew Yorks, New Jerseys, and
Marylands, respectivelysurvive intermediate scrutiny. Drake, 724 F.3d at 430; Woollard, 712
F.3d at 876; Kachalsky, 701 F.3d at 100-01. 13 The consistency of those results emphasizes the
steep hill that Plaintiffs have to climb at the preliminary injunction stage, where the burden is on
them to make a clear showing of the propriety of the extraordinary remedy of a preliminary
injunction. Winter, 555 U.S. at 22. By contrast, Plaintiffs cannot point to any countervailing
authority that persuades the Court that a different result is warranted. The Court reiterates that
Peruta, on which Plaintiffs rely, is no longer precedential, even in the Ninth Circuit, in light of
the full Ninth Circuit granting rehearing en banc in that case. 781 F.3d at 1106-07. Similarly, the

12

Insofar as Plaintiffs claim that the Districts licensing scheme is an unlawful rationing scheme,
the Court considered and rejected that argument above.
13

Notably, the Third Circuit concluded in Drake that New Jerseys justifiable need
requirement did not even burden conduct within the scope of the Second Amendments
guarantee, and only considered in the alternative the application of intermediate scrutiny. 724
F.3d at 429-30.
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opinion of the Seventh Circuit in Moore v. Madigan is also inapposite as it concerned Illinoiss
flat ban on carrying ready-to-use guns outside the home, 702 F.3d at 940, whereas this case
pertains to a licensing scheme not a flat ban. In sum, Plaintiffs have not shown that the
licensing scheme is unlikely to survive intermediate scrutiny, and, in light of all of the foregoing
analysis, the Court concludes that Plaintiffs have not met their burden of showing that they are
likely to succeed on the merits on the present record. Therefore, this factor weighs in favor of
Defendants.
*

As noted above, if it is the case that a likelihood of success is an independent, freestanding requirement for a preliminary injunction, in light of the Supreme Courts decision in
Winter, then the Courts conclusion that Plaintiffs have not shown a likelihood of success on the
merits would be the end of the inquiry, and the Court would deny the motion for the preliminary
injunction without further analysis. Davis, 571 F.3d at 1296 (concurring opinion). However,
because the Court of Appeals has not yet definitively abandoned the sliding-scale approach, see
Sherley, 644 F.3d at 393, and because this Court concludes that a preliminary injunction is not
warranted even under the sliding-scale approach, the Court need not resolve the viability of the
sliding-scale analysis. Therefore, the Court proceeds to consider the remaining three factors: the
likelihood of irreparable harm, the balance of the equities, and the public interest.
B. Likelihood of Irreparable Harm
To show that a preliminary injunction is warranted, Plaintiffs must show that there is a
likelihood of irreparable harm. See Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (A
movants failure to show any irreparable harm is therefore grounds for refusing to issue a
preliminary injunction, even if the other three factors entering the calculus merit such relief.).

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The D.C. Circuit Court of Appeals has set a high standard for irreparable injury. Id. First, the
injury must be both certain and great; it must be actual and not theoretical. Id. (citation
omitted). Second, the injury must be beyond remediation. Id. In Plaintiffs Reply, they clarify
that the certain and great injury on which they rely is the deprivation of their claimed
constitutional right to carry arms in public in the District of Columbia. 14 Pls. Reply at 24-25.
The Court notes that there is a dearth of authority regarding preliminary injunctions in the
context of alleged Second Amendment violations. Accordingly, the Court looks to authority in
the context of alleged violations of other constitutional provisions to guide this Courts
consideration of the irreparable harm factor.
[S]uits for declaratory and injunctive relief against the threatened invasion of a
constitutional right do not ordinarily require proof of any injury other than the threatened
constitutional deprivation itself. Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)
(quoting Davis v. District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998)). Thus,
[a]lthough a plaintiff seeking equitable relief must show a threat of substantial and immediate
irreparable injury, a prospective violation of a constitutional right constitutes irreparable injury
for these purposes. Gordon, 721 F.3d at 653 (quoting Davis, 158 F.3d at 1346) (alteration and
internal citation omitted in original). With respect to the particular alleged constitutional

14

It is unclear whether Plaintiffs ever purported to rely on any direct injury outside of the
putative constitutional violation and, if so, whether they continue to rely on such an injury. See
Pls. Reply at 23-24 (discussing only putative constitutional violation as basis for irreparable
injury). In any event, insofar as Plaintiffs do continue to rely on such direct injuries, such as an
impact on their sense of security suggested obliquely in their Motion for Preliminary Injunction,
the Court concludes that such an impact, standing alone, is not a tangible injury that is
certain and great such that it could stand as the sole basis for a claim of irreparable injury.
Chaplaincy of Full Gospel Churches, 454 F.3d at 298. Insofar as Plaintiffs ever relied on the
likelihood of being harmed as crime victims deprived of the putative ability to defend themselves
with a firearm as a result of the challenged licensing scheme, the Court concludes that such an
injury is purely speculative and, therefore, fails to satisfy the standard for irreparable harm.
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violation, the parties present diametrically opposed perspectives on the harm embodied in the
putative violation and disagree, accordingly, about whether preliminary relief is warranted in
light of their assessment of the nature of the harm. Compare Pls. Mot. at 21-22 (No
constitutional right is so directly linked to ones immediate physical well-being as is the right to
keep and bear arms.) with Defs. Oppn at 38 (The right to keep and bear arms, however, has
no intrinsic valueit is not an end in itself. If no occasion arises where a handgun is needed
for self-defense, its absence cannot cause harm.). However, the Court sees no basis in the case
law to conclude that the particular alleged constitutional violation in this case is more or less of
an irreparable injury than the violations of other constitutional provisions discussed by the
parties. Cf. Chaplaincy of Full Gospel Churches, 454 F.3d at 303 (It is unclear what, exactly,
movants alleging an Establishment Clause violation could show to differentiate between
establishments that inflict irreparable harm and those that do not.).
Plaintiffs Wrenn, Akery, and Whidby argue that their Second Amendment rights were
violated when they were denied concealed carry licenses on the basis that they did not satisfy the
good reason/other proper reason requirement of the licensing scheme. 15 Pls. Mot. at 7-9.
Plaintiff Second Amendment Foundation asserts associational standing on behalf of its members,
who include the individual Plaintiffs. Plaintiffs argue that, in addition to the injury to the
individual Plaintiffs, other members of the Second Amendment Foundation were injured because
they would not be able to satisfy the good reason/other proper reason requirement and that they

15

It is of no consequence for this analysis that Defendants in fact issued concealed carry licenses
to the individual Plaintiffs after Judge Scullin issued an injunction requiring them to do so. See
Defendants Notice Regarding the Status of Plaintiffs Concealed-Carry Licenses, ECF No. 50.
Defendants have represented that, as of February 23, 2016, they were in the process of revoking
those licenses because there was no longer a legal basis for them as a result of the Court of
Appeals vacating Judge Scullins injunction. See id. Accordingly, for the purposes of the pending
motion, the individual Plaintiffs are situated as they were when they originally filed their motion.
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refrained from applying for concealed carry licenses as they believed that doing so would be
futile. See Pls. Mot. at 6.
Above, the Court concluded that Plaintiffs have not shown a likelihood of success on the
merits of their constitutional claims. However, [w]ithin the irreparable harm analysis itself
which assumes, without deciding, that the movant has demonstrated a likelihood that the nonmovants conduct violates the lawwe examine only whether [the alleged constitutional]
violation, if true, inflicts irremediable injury. Chaplaincy of Full Gospel Churches, 454 F.3d at
303; see also id. (Of course, this raises the question of the extent to which the disputed
government action actually violates the Establishment Clausebut this inquiry is addressed by
another prong of the preliminary injunction calculation, the likelihood of the movants success
on the merits.). The claim that Plaintiffs constitutional rights were violated by the denial of the
individual Plaintiffs license applications and by the alleged futility of the applications of other
members of the Second Amendment Foundation is, therefore, a sufficient basis for the Court to
conclude that Plaintiffs have satisfied the irreparable harm prong of the preliminary injunction
analysis.
Before addressing the remaining two equitable factors, the Court pauses to comment on
the impact of this finding as part of the four-factor analysis. It is worth quoting at some length
the assessment of the Court of Appeals on the impact of a finding of irreparable injury solely in
light of an allegation of a constitutional violation:
We stress that a finding of irreparable injury is but one of four elements that
comprise the preliminary injunction framework. The mere allegation that the
government is violating the Establishment Clause may suffice to satisfy the
irreparable harm prong, but a preliminary injunction will not issue unless the
moving party also shows, on the same facts, a substantial likelihood of success on
the merits, that the injunction would not substantially injure other interested
parties, and that the public interest would be furthered by the injunction. It is these
other prongs that will ultimately determine meritorious motions for preliminary
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injunctions in the face of purported Establishment Clause violations. Unsupported

or undeveloped allegations of government establishment, for example, while
sufficient to make out irreparable injury, will not withstand scrutiny concerning
the movants likelihood of success on the merits, thereby defeating a request for a
preliminary injunction. Likewise, demands for preliminary relief that inflict
untoward detriment on persons not party to the case will meet a similar fate, as
will motions that do not further the public interest. Thus we do not believe that
our decision today in any way lessens the burden for parties seeking preliminary
injunctive relief against purported Establishment Clause violations. It merely
focuses greater attention on the three other factors that indisputably enter into the
preliminary injunction determination.
Chaplaincy of Full Gospel Churches, 454 F.3d at 304 (emphasis added). In other words, an
alleged constitutional violation may be enough to satisfy the irreparable injury prong. However,
such an allegation is not determinative of the Courts assessment of the balance of the equities or
of the impact on the public interest or, ultimately, of the outcome of the preliminary injunction
analysis. The Court now proceeds to consider the final two factors.
C. Balance of the Equities
With respect to the third factor, Plaintiffs must show that the balance of the equities tips
in [their] favor. Gordon, 721 F.3d at 644 (citation and quotation marks omitted). In support of
this factor, Plaintiffs rely on their allegation of a constitutional violation. However, the Court
already concluded above that Plaintiffs have not shown a likelihood of success on the merits, and
as such, Plaintiffs have not demonstrated at this stage of the proceedings that continued
enforcement of the Districts licensing scheme will infringe on their constitutional rights. See
Chaplaincy of Full Gospel Churches, 454 F.3d at 304 (success on allegation of constitutional
violation not presumed for assessment of the balance of the equities). Moreover, Defendants
have presented equitable interests weighing in their favor: the promotion of public safety and the
prevention of crime. Not only does the District itself have a strong interest in those objectives,
see Heller III, 801 F.3d at 274, but the members of the public themselves have a strong interest in

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public safety and crime prevention. That interest is heightened here where the alleged
constitutional violation pertains to the public carrying of operable handguns, which poses a
potential risk to otherscarriers and non-carriers alikefar greater than the risk of possessing a
handgun within the home. See Woollard, 712 F.3d at 882; Kachalsky, 701 F.3d at 99. On the
basis of these factors alone, the Court concludes that Plaintiffs have not met their burden of
showing that the balance of the equities tips in their favor.
Moreover, the Court views this factor in light of the area that the contested licensing
scheme affects, the densely populated jurisdiction of Washington, D.C. 16 Because the entirety of
the District of Columbia is an urban area, the carrying of operable handguns in public may
further tip this factor in Defendants favor. Accordingly, the Court concludes that, for this
additional reason, Plaintiffs have not borne their burden of showing that the equities tip in their
favor.

16

The Court takes judicial notice that according to data provided by the United States Census
Bureau, the District of Columbia had a population density of 9,856.5 people per square mile of
land area in 2010. See U.S. Census Quickfacts: District of Columbia, available at
http://www.census.gov/quickfacts/table/PST045215/11 (last visited March 6, 2016). By contrast,
the population density of the United States as a whole, as of 2010, was 87.4 people per square
mile of land area, and that the population density of the District of Columbia was notably higher
than that of all of the states in the Union. See id. (charts of population density of the states and of
the United States). For the sake of relative comparison, the Court notes that the population
density of New Jersey was 1,195.5; that of Rhode Island was 1,018.1; and that of New York
(State) was 411.2. By contrast, that of Alaska was 1.2; that of Idaho was 19.0; and that of New
Hampshire was 147.0.While state populations have changed between 2010 and the present, a
comparison of population data from July 2015 and from April 2010 does not reveal any material
changes in the orders of magnitude of the respective population densities in the intervening
years. See U.S. Census Quickfacts: District of Columbia, available at
http://www.census.gov/quickfacts/table/PST045215/11 (last visited March 3, 2016) (chart
comparing statewide population data for July 1, 2015, and April 2010).
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D. Public Interest
With respect to this factor, on the one hand, Plaintiffs assert that enforcing an
unconstitutional law is not in the public interest, but on the other hand, Defendants assert the
Districts interest in avoiding the dangers associated with the public carrying of handguns for
those who live in, work in, and travel through it. Defendants also emphasize that Plaintiffs have
yet to prevail on their constitutional claim. The Courts analysis with respect to the balance of the
equities above is equally applicable to this fourth factor. Cf. Nken v. Holder, 556 U.S. 418, 435
(2009) (with respect to application for a stay, the balance of the equities and public interest
factors merge when the Government is the opposing party); United States Assn of Reptile
Keepers, Inc. v. Jewell, 103 F. Supp. 3d 133, 164 (D.D.C. 2015) (applying Nken merger doctrine
to preliminary injunction context); FBME Bank Ltd. v. Lew, No. 15-CV-01270 (CRC), 2015 WL
5081209, at *13 (D.D.C. Aug. 27, 2015) (same). Because the Court determined above that
Plaintiffs have not shown a likelihood of success on the merits of their claim that the Districts
licensing scheme is unconstitutional,17 and because of the interest that Defendants have
identified in reducing risks posed to members of the public in the District of Columbia as a result
of concealed weapons carried in public, to which Plaintiffs have not adequately responded, as
well as for all the reasons stated above with respect to the balance of the equities, the Court
concludes that Plaintiffs have not met their burden of showing that the issuance of a preliminary
injunction would be in the public interest.
*

17

As with the Courts assessment of the balance of the equities, the Court is not bound to assume
success on the merits of Plaintiffs constitutional claim in order to analyze this factor. See
Chaplaincy of Full Gospel Churches, 454 F.3d at 304.
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In sum, the Court has concluded that, on this record, Plaintiffs have not established a
likelihood of success on the merits, that the equities tip in their favor, or that the issuance of an
injunction would be in the public interest. Therefore, notwithstanding the fact that Plaintiffs have
satisfied the irreparable injury factor as a result of their allegation of a Second Amendment
violation alone, the Court concludes that the factors, taken together, favor denial of Plaintiffs
motion for preliminary injunction. The Court concludes that Plaintiffs have not made the clear
showing that the extraordinary remedy of a preliminary injunction is warranted in these
circumstances. Winter, 555 U.S. at 22.
IV. CONCLUSION
For the foregoing reasons, the Court hereby ORDERS that Plaintiffs [6] Motion for
Preliminary Injunction is DENIED.
The Court will set a date for an Initial Scheduling Conference by a separate Order.
Dated: March 7, 2016
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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