Dick Anthony Heller v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
F ILED: FEBRUARY 26, 2016
No. 14-7071
D ICK ANTHONY HELLER , ET AL.,
APPELLANTS
v.
D ISTRICT OF C OLUMBIA , ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01289)
On Petition for Rehearing En Banc
Before: GARLAND , Chief Judge; HENDERSON, R OGERS ,
TATEL, BROWN, GRIFFITH , KAVANAUGH , S RINIVASAN ,
M ILLETT,* P ILLARD, and W ILKINS , Circuit Judges
O R D E R
Appellees= petition for rehearing en banc and the
response thereto were circulated to the full court, and a vote
was requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
consideration of the foregoing, it is

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ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken Meadows
Deputy Clerk
* A statement by Circuit Judge Millett, concurring in the
denial of rehearing en banc, is attached.

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M ILLETT, C IRCUIT J UDGE, concurring in the denial of
rehearing en banc. In response to the District of Columbia’s
petition for rehearing en banc, it bears emphasizing the
procedural posture of this case and the shortcomings in the
record. The District, as a summary-judgment movant, elected
both to face summary judgment, and to fend off Heller’s own
cross-motion for summary judgment, on a record of the
District’s own choosing. Given our prior remand order,
moreover, the District had a full opportunity to develop a
record and come forward with summary-judgment-qualifying
evidence to substantiate the difficult policy judgments that it
presses on rehearing, and to do so to the degree necessary to
survive the intermediate scrutiny that our precedent requires,
see Heller v. District of Columbia, 670 F.3d 1244, 1252–1253
(D.C. Cir. 2011). As the majority opinion explains, with
respect to those provisions that this court could not sustain,
and especially with respect to the District’s testing of
knowledge about local firearms laws, the District failed that
task. Slip op. 10–11, 25–26 & n.4. In my view, given those
omissions in the District’s summary judgment record, this
case simply does not present the broadside on regulatory
authority to promote public safety that the en banc petition
asserts.

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