Litigation Highlight: United States v. Class (D.C. Cir. 2019)

Last Friday, the D.C. Circuit decided a big Second Amendment case, in which a defendant challenged his conviction for violating the federal law banning firearms on “Capitol Grounds.” In United States v. Class, the panel upheld the regulation against Second Amendment and Due Process challenges. The decision adds important context to the “sensitive places” doctrine that Heller first established, and which the Tenth Circuit previously applied in Bonidy v. United States. But the Class decision also does much more.

In 2013, Rodney Class went to visit the Capitol. He parked in a publicly-accessible, open-air lot on Maryland Avenue, but that particular lot is reserved for employees of the House of Representatives—which Class was not. He left several of his firearms in the car as he strolled around the Capitol. Unfortunately for Class, the lot is designated as Capitol Grounds. And 40 U.S.C § 5104(e) provides in relevant part that:

An individual or group of individuals . . .

(i) may not carry on or have readily accessible to any individual on the Grounds or in any of the Capitol Buildings a firearm, a dangerous weapon, explosives, or an incendiary device;

(ii) may not discharge a firearm or explosives, use a dangerous weapon, or ignite an incendiary device, on the Grounds or in any of the Capitol Buildings; or

(iii) may not transport on the Grounds or in any of the Capitol Buildings explosives or an incendiary device . . .

Class returned to his car to find officers peering inside, and he admitted he had guns inside. He was charged with, and pled guilty to, violating § 5104(e). On appeal Class argued that (1) the Capitol Grounds are not the “sensitive places” where Heller recognized permissible regulations, (2) the ban at § 5104(e) is not “longstanding” under Heller, and (3) the difficulty of determining what qualifies as “Capitol Grounds” makes the prohibition unlawful under the Due Process Clause for failing to provide sufficient notice. The Court rejected all three arguments—and in so doing importantly clarified Second Amendment and related firearms law.

First, the Court explained that the “sensitive places” doctrine extends not just to the inside of government buildings or to secured access areas closed to the public, like the White House Lawn. Instead, it extends to those areas where the concerns that justify the categorical exception exist. In this instance, “sensitive places” are Second Amendment carve-outs not because threats are lower there (e.g. because of increased security or limited access), but because of what takes place in those spaces or who is found there. After all, “[m]any ‘schools’ and ‘government buildings’—the paradigmatic ‘sensitive places’ identified in Heller I—are open to the public, without any form of special security or screening.” Because House employees need safety traveling to and from their offices, the sensitive place carve-out extends to the parking lot.

Second, the Court rejected the argument that because the Maryland Ave. lot was not included in the definition of Capitol Grounds until 1980 that it could not claim the “longstanding” mantle Heller attached to permissible regulations. The question is not, the panel said, whether the specific challenged law is longstanding. Rather,

The relevant inquiry is whether a particular type of regulation has been a ‘longstanding’ exception to the right to bear arms. A new post office is no less a government building than one built in 1789, just as a new wing of the Capitol is still part of that building.

Because the prohibition qualified as a longstanding, presumptively lawful regulation, Class had to show it had “more than a de minimis effect upon his right to bear arms” to rebut the presumption. He could not do so, given that all Class had to do was avoid the Grounds to keep his rights intact.

Third, the Court held that the statute provided Class all the notice necessary under the Due Process Clause. Due Process claims like these are long shots, and the challenger usually has to show some indeterminacy in the law or that it invites or allows arbitrary enforcement. Class, instead, tried to show that the law’s complexity rendered it unconstitutional. At the outset, the Court acknowledged the difficulty of someone in Class’s position, which he argued made it nearly impossible for the average citizen to discern unlawful conduct:

Class relies on the circuitous route an individual must take to determine whether the lot is part of the Capitol Grounds. First, a person must look to the U.S. Code, which defines the grounds by reference to a 1946 map on file in the Office of the Surveyor of the District of Columbia. 40 U.S.C. § 5102. The map does not contain the Maryland Avenue lot. However, the statute goes on to say that the boundaries of the Grounds “includ[e] all additions added by law” after the map was recorded. Id. So the second step a person must take is to find Public Law 96-432, which in 1980 expanded the Grounds to include “that portion of Maryland Avenue Southwest from the west curb of First Street Southwest to the east curb of Third Street Southwest.” Act to Amend the Act of July 31, 1946, as amended, Relating to the United States Capitol Grounds, and for Other Purposes, Pub. L. No. 96-432, (5), 94 Stat. 1851, 1851 (1980).

Despite that circuity, all the average citizen needs to understand the proscribed conduct is a statute book and a map. The difficulty of figuring out where the ban applies does not make the law unconstitutional.

The Court did recognize that its review had to be more searching in a case where the law (1) imposes criminal penalties, (2) threatens to inhibit the exercise of constitutionally protected conduct, and (3) lacks a scienter requirement. And, as to the last factor, the District Court had concluded the statute required no mens rea for the defendant’s location, and Class did not appeal that ruling, so the panel accepted that construction. (The Court, however, noted that the Supreme Court’s recent mens rea decision in Rehaif v. United States may suggest more caution if the statutory question was squarely presented. I’ve written about Rehaif here and here.)

These factors did not, however, warrant overturning the law (or Class’s conviction). Even without a mens rea requirement, the statute was not so vague that it failed to give fair notice of the conduct it prohibited.