Opinion · Court of Appeals for the Fourth Circuit
Stephen Kolbe v. Lawrence Hogan, Jr.
849 F.3d 114
- Type
- Opinion
- Court
- Court of Appeals for the Fourth Circuit
- Jurisdiction
- Federal
- Date
- 2017-02-21
- Topic
- general
holding that retired law enforcement officers "are not similarly situated to the general public with respect to the assault weapons and large-capacity magazines banned" | holding that retired law enforcement officers “are not similarly situated to the general public with respect to the assault weapons and large-capacity magazines banned” | holding that retired law enforcement officers “are not similarly situated to the general public with respect to the assault weapons and large-capacity magazines banned” | holding that a law that did not have this disarming effect was subject to intermediate scrutiny | observing that "rounds from assault weapons have the ability to easily penetrate most materials used in standard home construction, car doors, and similar materials" | noting that a "criminal statute need not ... spell out every possible factual scenario with celestial precision" (internal quotes omitted) | explaining that “the handgun’s status as ‘the quintessential self-defense weapon’ ” was “obviously and unquestionably important to the Heller Court.” | documenting that approximately 99 percent of the AIR program’s flights centered on the predominantly Black neighborhoods of East and West Baltimore | explaining that intermediate scrutiny is “less onerous” than strict scrutiny, requiring only a reasonable fit with a substantial governmental interest | noting that the law under review “does not ban the possession of a large- capacity magazine” | determining that because the banned assault weapons were “like M-16 rifles . . . they are among those arms that the Second Amendment does not shield” | noting that “intermediate scrutiny is the appropriate standard because [the statute] does not severely burden the core protection of the Second Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home” | applying intermediate scrutiny because challenged law did "not seriously impact a person's ability to defend himself in the home" (internal quotation marks omitted) | rejecting the notion that the Second Amendment should apply to “each and every weapon deemed sufficiently popular” | noting the “scant evidence . . . [that] large-capacity magazines are possessed, or even suitable, for self-protection” | applying intermediate scrutiny where the law “does not severely burden the core protection of the Second Amendment” | applying intermediate scrutiny where the law “does not severely burden the core protection of the Second Amendment” | upholding state ban on assault weapons and high-capacity magazines in spite of arguments against legislative rationale | “[A]ssuming the Second Amendment protects the FSA-banned assault weapons and large-capacity magazines, the FSA is subject to the intermediate scrutiny standard of review.” | noting the “scant evidence . . . [that] large-capacity magazines are possessed, or even suitable, for self-protection” | “Being satisfied that there is substantial evidence indicating that the FSA’s prohibitions against assault weapons and large-capacity magazines will advance Maryland’s goals, we conclude that the FSA survives intermediate scrutiny.” | listing several questions raised in light of Heller, including “Is not being ‘in common use at the time’ the same as being ‘dangerous and unusual’?”, but holding that the court need not answer those questions | noting the “evidence that, by reducing the availability of . . . [large-capacity] magazines overall, the [challenged law] will curtail their availability to criminals and lessen their use in mass shootings, other crimes, and firearms accidents” | noting the “evidence that, by reducing the availability of . . . [large-capacity] magazines overall, the [challenged law] will curtail their availability to criminals and lessen their use in mass shootings, other crimes, and firearms accidents” | rejecting the dissent’s “popularity test” for deciding whether weapons are unusual | internal quotation 10 NEW YORK STATE RIFLE
Citator
- Cited by
- 51 opinions
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1945
STEPHEN V. KOLBE; ANDREW C. TURNER; WINK’S SPORTING GOODS,
INCORPORATED; ATLANTIC GUNS, INCORPORATED; ASSOCIATED GUN
CLUBS OF BALTIMORE, INCORPORATED; MARYLAND SHALL ISSUE,
INCORPORATED; MARYLAND STATE RIFLE AND PISTOL ASSOCIATION,
INCORPORATED; NATIONAL SHOOTING SPORTS FOUNDATION,
INCORPORATED; MARYLAND LICENSED FIREARMS DEALERS
ASSOCIATION, INCORPORATED,
Plaintiffs – Appellants,
and
SHAWN J. TARDY; MATTHEW GODWIN,
Plaintiffs,
v.
LAWRENCE J. HOGAN, Jr., in his official capacity as
Governor of the State of Maryland; BRIAN E. FROSH, in his
official capacity as Attorney General of the State of
Maryland; COLONEL WILLIAM M. PALLOZZI, in his official
capacity as Secretary of the Department of State Police and
Superintendent of the Maryland State Police; MARYLAND STATE
POLICE,
Defendants – Appellees.
---------------------------
STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ALASKA;
STATE OF ARIZONA; STATE OF FLORIDA; STATE OF IDAHO; STATE
OF KANSAS; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF
MISSOURI; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NEW
MEXICO; STATE OF NORTH DAKOTA; STATE OF OKLAHOMA; STATE OF
SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TEXAS;
STATE OF UTAH; STATE OF WYOMING; COMMONWEALTH OF KENTUCKY;
TRADITIONALIST YOUTH NETWORK, LLC; NATIONAL RIFLE
ASSOCIATION OF AMERICA; CRPA FOUNDATION; GUN OWNERS OF
CALIFORNIA; COLORADO STATE SHOOTING ASSOCIATION; IDAHO
STATE RIFLE & PISTOL ASSOCIATION; ILLINOIS STATE RIFLE
ASSOCIATION; KANSAS STATE RIFLE ASSOCIATION; LEAGUE OF
KENTUCKY SPORTSMEN, INC.; NEVADA FIREARMS COALITION;
ASSOCIATION OF NEW JERSEY RIFLE & PISTOL CLUBS; NEW MEXICO
SHOOTING SPORTS ASSOCIATION; NEW YORK RIFLE & PISTOL
ASSOCIATION; TEXAS STATE RIFLE ASSOCIATION; VERMONT
FEDERATION OF SPORTSMAN’S CLUBS; VERMONT RIFLE & PISTOL
ASSOCIATION; GUN OWNERS OF AMERICA, INC.; GUN OWNERS
FOUNDATION; U.S. JUSTICE FOUNDATION; THE LINCOLN INSTITUTE
FOR RESEARCH AND EDUCATION; THE ABRAHAM LINCOLN FOUNDATION
FOR PUBLIC POLICY RESEARCH, INC.; CONSERVATIVE LEGAL
DEFENSE AND EDUCATION FUND; INSTITUTE ON THE CONSTITUTION;
CONGRESS OF RACIAL EQUALITY; NATIONAL CENTER FOR PUBLIC
POLICY RESEARCH; PROJECT 21; PINK PISTOLS; WOMEN AGAINST
GUN CONTROL; THE DISABLED SPORTSMEN OF NORTH AMERICA; LAW
ENFORCEMENT LEGAL DEFENSE FUND; LAW ENFORCEMENT ACTION
NETWORK; LAW ENFORCEMENT ALLIANCE OF AMERICA; INTERNATIONAL
LAW ENFORCEMENT EDUCATORS AND TRAINERS ASSOCIATION; WESTERN
STATES SHERIFFS’ ASSOCIATION,
Amici Supporting Appellants,
LAW CENTER TO PREVENT GUN VIOLENCE; MARYLANDERS TO PREVENT
GUN VIOLENCE, INCORPORATED; BRADY CENTER TO PREVENT GUN
VIOLENCE; STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF
CONNECTICUT; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF
IOWA; STATE OF MASSACHUSETTS; STATE OF OREGON; DISTRICT OF
COLUMBIA,
Amici Supporting Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:13-cv-02841-CCB)
Argued: May 11, 2016 Decided: February 21, 2017
Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
TRAXLER, KING, SHEDD, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER,
and HARRIS, Circuit Judges.
2
Affirmed by published opinion. Judge King wrote the opinion for
the en banc majority, in which Chief Judge Gregory and Judges
Wilkinson, Motz, Keenan, Wynn, Floyd, Thacker, and Harris joined
in full; Judge Diaz joined in part as to the Second Amendment
claims and joined as to the Fourteenth Amendment equal
protection and due process claims; and Judges Niemeyer, Shedd,
and Agee joined as to the Fourteenth Amendment claims only.
Judge Wilkinson wrote a concurring opinion, in which Judge Wynn
joined. Judge Diaz wrote an opinion concurring in part and
concurring in the judgment as to the Second Amendment claims.
Judge Traxler wrote a dissenting opinion as to the Second
Amendment claims, in which Judges Niemeyer, Shedd, and Agee
joined. Judge Traxler also wrote an opinion dissenting as to
the Fourteenth Amendment equal protection claim and concurring
in the judgment as to the Fourteenth Amendment due process
claim.
ARGUED: John Parker Sweeney, BRADLEY ARANT BOULT CUMMINGS LLP,
Washington, D.C., for Appellants. Matthew John Fader, OFFICE OF
THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. ON BRIEF: T. Sky Woodward, James W. Porter, III,
Marc A. Nardone, BRADLEY ARANT BOULT CUMMINGS LLP, Washington,
D.C., for Appellants. Brian E. Frosh, Attorney General of
Maryland, Jennifer L. Katz, Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston,
Michigan; Jason Van Dyke, THE VAN DYKE LAW FIRM, PLLC, Plano,
Texas, for Amicus Traditionalist Youth Network, LLC. Patrick
Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie
Marie Blake, Erica N. Peterson, Gilbert Dickey, Assistant
Attorneys General, OFFICE OF THE ATTORNEY GENERAL OF WEST
VIRGINIA, Charleston, West Virginia, for Amicus State of West
Virginia; Luther Strange, Attorney General of Alabama,
Montgomery, Alabama, for Amicus State of Alabama; Michael C.
Geraghty, Attorney General of Alaska, Juneau, Alaska, for Amicus
State of Alaska; Thomas C. Horne, Attorney General of Arizona,
Phoenix, Arizona, for Amicus State of Arizona; Pam Bondi,
Attorney General of Florida, Tallahassee, Florida, for Amicus
State of Florida; Lawrence G. Wasden, Attorney General of Idaho,
Boise, Idaho, for Amicus State of Idaho; Derek Schmidt, Attorney
General of Kansas, Topeka, Kansas, for Amicus State of Kansas;
James D. Caldwell, Attorney General of Louisiana, Baton Rouge,
Louisiana, for Amicus State of Louisiana; Bill Schuette,
Attorney General of Michigan, Lansing, Michigan, for Amicus
State of Michigan; Chris Koster, Attorney General of Missouri,
3
Jefferson City, Missouri, for Amicus State of Missouri; Timothy
C. Fox, Attorney General of Montana, Helena, Montana, for Amicus
State of Montana; Jon Bruning, Attorney General of Nebraska,
Lincoln, Nebraska, for Amicus State of Nebraska; Gary King,
Attorney General of New Mexico, Santa Fe, New Mexico, for Amicus
State of New Mexico; Wayne Stenehjem, Attorney General of North
Dakota, Bismarck, North Dakota, for Amicus State of North
Dakota; E. Scott Pruitt Attorney General of Oklahoma, Oklahoma
City, Oklahoma, for Amicus State of Oklahoma; Alan Wilson,
Attorney General of South Carolina, Columbia, South Carolina,
for Amicus State of South Carolina; Martin J. Jackley, Attorney
General of South Dakota, Pierre, South Dakota, for Amicus State
of South Dakota; Greg Abbott, Attorney General of Texas, Austin,
Texas, for Amicus State of Texas; Sean Reyes, Attorney General
of Utah, Salt Lake City, Utah, for Amicus State of Utah; Peter
K. Michael, Attorney General of Wyoming, Cheyenne, Wyoming, for
Amicus State of Wyoming; Jack Conway, Attorney General of
Kentucky, Frankfort, Kentucky, for Amicus Commonwealth of
Kentucky. Charles J. Cooper, David H. Thompson, Peter A.
Patterson, John D. Ohlendorf, COOPER & KIRK, PLLC, Washington,
D.C., for Amicus National Rifle Association of America, Inc.
C.D. Michel, Clinton B. Monfort, Anna M. Barvir, MICHEL &
ASSOCIATES, P.C., Long Beach, California, for Amici CRPA
Foundation, Gun Owners of California, Colorado State Shooting
Association, Idaho State Rifle & Pistol Association, Illinois
State Rifle Association, Kansas State Rifle Association, League
of Kentucky Sportsmen, Inc., Nevada Firearms Coalition,
Association of New Jersey Rifle & Pistol Clubs, New Mexico
Shooting Sports Association, New York State Rifle & Pistol
Association, Texas State Rifle Association, Vermont Federation
of Sportsmen’s Clubs, and Vermont Rifle & Pistol Association.
Michael Connelly, U.S. JUSTICE FOUNDATION, Ramona, California,
for Amicus U.S. Justice Foundation; Robert J. Olson, Herbert W.
Titus, William J. Olson, John S. Miles, Jeremiah L. Morgan,
WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Gun Owners
of America, Inc., Gun Owners Foundation, U.S. Justice
Foundation, The Lincoln Institute for Research and Education,
The Abraham Lincoln Foundation for Public Policy Research, Inc.,
Conservative Legal Defense and Education Fund, and Institute on
the Constitution. Brian S. Koukoutchos, Mandeville, Louisiana;
James B. Astrachan, ASTRACHAN GUNST THOMAS, P.C., Baltimore,
Maryland, for Amici Congress of Racial Equality, National Center
for Public Policy Research, Project 21, Pink Pistols, Women
Against Gun Control, and The Disabled Sportsmen of North
America. Dan M. Peterson, DAN M. PETERSON, PLLC, Fairfax,
Virginia, for Amici The Law Enforcement Legal Defense Fund, Law
Enforcement Action Network, Law Enforcement Alliance of America,
4
International Law Enforcement Educators and Trainers
Association, and Western States Sheriffs’ Association. Jonathan
K. Baum, Chicago, Illinois, Mark T. Ciani, KATTEN MUCHIN
ROSENMAN LLP, New York, New York, for Amici Law Center to
Prevent Gun Violence and Marylanders to Prevent Gun Violence,
Inc. Jonathan E. Lowy, Kelly Sampson, BRADY CENTER TO PREVENT
GUN VIOLENCE, Washington, D.C.; Elliott Schulder, Suzan F.
Charlton, Amit R. Vora, Catlin Meade, Stephen Kiehl, COVINGTON &
BURLING LLP, Washington, D.C., for Amicus Brady Center To
Prevent Gun Violence. Barbara D. Underwood, Solicitor General,
Anisha S. Dasgupta, Deputy Solicitor General, Claude S. Platton,
Assistant Solicitor General, Eric T. Schneiderman, Attorney
General of the State of New York, for Amicus State of New York;
Kamala D. Harris, Attorney General of California, Sacramento,
California, for Amicus State of California; George Jepsen,
Attorney General of Connecticut, Hartford, Connecticut, for
Amicus State of Connecticut; Russell A. Suzuki, Attorney General
of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lisa
Madigan, Attorney General of Illinois, Chicago, Illinois, for
Amicus State of Illinois; Thomas J. Miller, Attorney General of
Iowa, Des Moines, Iowa, for Amicus State of Iowa; Martha
Coakley, Attorney General of Massachusetts, Boston,
Massachusetts, for Amicus Commonwealth of Massachusetts; Ellen
F. Rosenblum, Attorney General of Oregon, Salem, Oregon, for
Amicus State of Oregon; Karl A. Racine, Attorney General of The
District of Columbia, Washington, D.C., for Amicus The District
of Columbia. J. Adam Skaggs, Mark Anthony Frasetto, EVERYTOWN
FOR GUN SAFETY, New York, New York; Deepak Gupta, Jonathan E.
Taylor, Neil K. Sawhney, GUPTA WESSLER PLLC, Washington, D.C.,
for Amicus Everytown for Gun Safety.
5
KING, Circuit Judge:
On the morning of December 14, 2012, in Newtown,
Connecticut, a gunman used an AR-15-type Bushmaster rifle and
detachable thirty-round magazines to murder twenty first-graders
and six adults in the Sandy Hook Elementary School. Two
additional adults were injured by gunfire, and just twelve
children in the two targeted classrooms were not shot. Nine
terrified children ran from one of the classrooms when the
gunman paused to reload, while two youngsters successfully hid
in a restroom. Another child was the other classroom’s sole
survivor. In all, the gunman fired at least 155 rounds of
ammunition within five minutes, shooting each of his victims
multiple times.
Both before and after Newtown, similar military-style
rifles and detachable magazines have been used to perpetrate
mass shootings in places whose names have become synonymous with
the slaughters that occurred there — like Aurora, Colorado
(twelve killed and at least fifty-eight wounded in July 2012 in
a movie theater), and San Bernardino, California (fourteen
killed and more than twenty wounded in December 2015 at a
holiday party). In the early morning hours of June 12, 2016, a
gunman killed forty-nine and injured fifty-three at the Pulse
nightclub in Orlando, Florida, making it the site of this
country’s deadliest mass shooting yet. According to news
6
reports, the Orlando gunman used a Sig Sauer MCX, a
semiautomatic rifle that was developed at the request of our
Army’s special forces and is known in some military circles as
the “Black Mamba.” Other massacres have been carried out with
handguns equipped with magazines holding more than ten rounds,
including those at Virginia Tech (thirty-two killed and at least
seventeen wounded in April 2007) and Fort Hood, Texas (thirteen
killed and more than thirty wounded in November 2009), as well
as in Binghamton, New York (thirteen killed and four wounded in
April 2009 at an immigration center), and Tucson, Arizona (six
killed and thirteen wounded in January 2011 at a congresswoman’s
constituent meeting in a grocery store parking lot).
In response to Newtown and other mass shootings, the duly
elected members of the General Assembly of Maryland saw fit to
enact the State’s Firearm Safety Act of 2013 (the “FSA”), which
bans the AR-15 and other military-style rifles and shotguns
(referred to as “assault weapons”) and detachable large-capacity
magazines. The plaintiffs in these proceedings contest the
constitutionality of the FSA with a pair of Second Amendment
claims — one aimed at the assault weapons ban, the other at the
prohibition against large-capacity magazines — plus Fourteenth
Amendment equal protection and due process claims.
On cross-motions for summary judgment, a distinguished
judge in the District of Maryland ruled in August 2014 that the
7
FSA is constitutional and thus awarded judgment to the
defendants. See Kolbe v. O’Malley, 42 F. Supp. 3d 768
(D. Md. 2014) (the “Opinion”). Addressing the plaintiffs’ Second Amendment claims under the Supreme Court’s decision in District of Columbia v. Heller,554 U.S. 570
(2008), the district court
expressed grave doubt that the banned assault weapons and large-
capacity magazines are constitutionally protected arms.
Nevertheless, the court ultimately assumed that the FSA
implicates the Second Amendment and subjected it to the
“intermediate scrutiny” standard of review. In the wake of
Heller, four of our sister courts of appeals have also rejected
Second Amendment challenges to bans on assault weapons and
large-capacity magazines, including two (the Second and District
of Columbia Circuits) that utilized an analysis similar to the
district court’s.
In early February of 2016, a divided three-judge panel of
this Court vacated the Opinion’s Second Amendment rulings and
remanded to the district court, directing the application of the
more restrictive standard of “strict scrutiny” to the FSA. See
Kolbe v. Hogan, 813 F.3d 160
(4th Cir. 2016). Pursuant to its
reading of Heller, the panel majority determined that the banned
assault weapons and large-capacity magazines are indeed
protected by the Second Amendment, and that the FSA
substantially burdens the core Second Amendment right to use
8
arms for self-defense in the home. We thereby became the first
and only court of appeals to rule that a ban on assault weapons
or large-capacity magazines deserves strict scrutiny.
Meanwhile, the panel affirmed the district court’s denial of the
plaintiffs’ Fourteenth Amendment claims. On March 4, 2016, the
panel’s decision was vacated in its entirety by our Court’s
grant of rehearing en banc in this case. We heard argument en
banc on May 11, 2016, and the appeal is now ripe for
disposition.
As explained below, we are satisfied to affirm the district
court’s judgment, in large part adopting the Opinion’s cogent
reasoning as to why the FSA contravenes neither the Second
Amendment nor the Fourteenth. We diverge from the district
court on one notable point: We conclude — contrary to the now-
vacated decision of our prior panel — that the banned assault
weapons and large-capacity magazines are not protected by the
Second Amendment. That is, we are convinced that the banned
assault weapons and large-capacity magazines are among those
arms that are “like” “M-16 rifles” — “weapons that are most
useful in military service” — which the Heller Court singled out
as being beyond the Second Amendment’s reach. See 554 U.S. at 627
(rejecting the notion that the Second Amendment safeguards
“M-16 rifles and the like”). Put simply, we have no power to
extend Second Amendment protection to the weapons of war that
9
the Heller decision explicitly excluded from such coverage.
Nevertheless, we also find it prudent to rule that — even if the
banned assault weapons and large-capacity magazines are somehow
entitled to Second Amendment protection — the district court
properly subjected the FSA to intermediate scrutiny and
correctly upheld it as constitutional under that standard of
review.
I.
A.
The General Assembly of Maryland passed the FSA on April 4,
2013, the Governor signed it into law that May 16, and it became
effective several months later on October 1. The FSA provides
that a person may neither “transport an assault weapon into the
State” nor “possess, sell, offer to sell, transfer, purchase, or
receive an assault weapon.” See Md. Code Ann., Crim. Law § 4
- 303(a). The banned assault weapons include “assault long gun[s]” and “copycat weapon[s].”Id.
§ 4-301(d).
The FSA defines an assault long gun as a rifle or shotgun
“listed under § 5-101(r)(2) of the Public Safety Article,”
including the “Colt AR-15,” “Bushmaster semi-auto rifle,” and
“AK-47 in all forms.” See Md. Code Ann., Crim. Law § 4-301
(b);Md. Code Ann., Pub. Safety § 5-101
(r)(2). The list of
prohibited rifles and shotguns consists of “specific assault
10
weapons or their copies, regardless of which company produced
and manufactured that assault weapon.” See Md. Code Ann., Pub. Safety § 5-101
(r)(2) (emphasis added). 1
1 The rifles and shotguns specifically identified as banned
in section 5-101(r)(2) — mostly semiautomatic rifles — are as
follows:
(i) American Arms Spectre da Semiautomatic carbine;
(ii) AK-47 in all forms; (iii) Algimec AGM-1 type
semi-auto; (iv) AR 100 type semi-auto; (v) AR 180 type
semi-auto; (vi) Argentine L.S.R. semi-auto;
(vii) Australian Automatic Arms SAR type semi-auto;
(viii) Auto-Ordnance Thompson M1 and 1927 semi-
automatics; (ix) Barrett light .50 cal. semi-auto;
(x) Beretta AR70 type semi-auto; (xi) Bushmaster semi-
auto rifle; (xii) Calico models M-100 and M-900;
(xiii) CIS SR 88 type semi-auto; (xiv) Claridge HI TEC
C-9 carbines; (xv) Colt AR-15, CAR-15, and all
imitations except Colt AR-15 Sporter H-BAR rifle;
(xvi) Daewoo MAX 1 and MAX 2, aka AR 100, 110C, K-1,
and K-2; (xvii) Dragunov Chinese made semi-auto;
(xviii) Famas semi-auto (.223 caliber); (xix) Feather
AT-9 semi-auto; (xx) FN LAR and FN FAL assault rifle;
(xxi) FNC semi-auto type carbine;
(xxii) F.I.E./Franchi LAW 12 and SPAS 12 assault
shotgun; (xxiii) Steyr-AUG-SA semi-auto; (xxiv) Galil
models AR and ARM semi-auto; (xxv) Heckler and Koch
HK-91 A3, HK-93 A2, HK-94 A2 and A3; (xxvi) Holmes
model 88 shotgun; (xxvii) Avtomat Kalashnikov
semiautomatic rifle in any format; (xxviii) Manchester
Arms “Commando” MK-45, MK-9; (xxix) Mandell TAC-1
semi-auto carbine; (xxx) Mossberg model 500 Bullpup
assault shotgun; (xxxi) Sterling Mark 6;
(xxxii) P.A.W.S. carbine; (xxxiii) Ruger mini-14
folding stock model (.223 caliber); (xxxiv) SIG
550/551 assault rifle (.223 caliber); (xxxv) SKS with
detachable magazine; (xxxvi) AP-74 Commando type semi-
auto; (xxxvii) Springfield Armory BM-59, SAR-48, G3,
SAR-3, M-21 sniper rifle, M1A, excluding the M1
Garand; (xxxviii) Street sweeper assault type shotgun;
(xxxix) Striker 12 assault shotgun in all formats;
(xl) Unique F11 semi-auto type; (xli) Daewoo USAS 12
(Continued)
11
The FSA provides a separate definition for a copycat weapon
that is premised on a weapon’s characteristics, rather than
being identified by a list of specific firearms. In relevant
part, a copycat weapon means:
(i) a semiautomatic centerfire rifle that can
accept a detachable magazine and has any two
of the following:
1. a folding stock;
2. a grenade launcher or flare launcher;
or
3. a flash suppressor;
(ii) a semiautomatic centerfire rifle that has a
fixed magazine with the capacity to accept
more than 10 rounds;
(iii) a semiautomatic centerfire rifle that has an
overall length of less than 29 inches;
* * *
(v) a semiautomatic shotgun that has a folding
stock; or
(vi) a shotgun with a revolving cylinder.
See Md. Code Ann., Crim. Law § 4-301
(e)(1). The FSA excludes
assault long guns — those enumerated in section 5-101(r)(2) of
semi-auto shotgun; (xlii) UZI 9mm carbine or rifle;
(xliii) Valmet M-76 and M-78 semi-auto; (xliv) Weaver
Arms “Nighthawk” semi-auto carbine; or (xlv) Wilkinson
Arms 9mm semi-auto “Terry.”
See Md. Code Ann., Pub. Safety § 5-101
(r)(2).
12
the Public Safety Article and their copies — from the definition
of a copycat weapon. See Md. Code Ann., Crim. Law § 4
-
301(e)(2). 2
In banning large-capacity magazines along with assault
weapons, the FSA provides that “[a] person may not manufacture,
sell, offer for sale, purchase, receive, or transfer a
detachable magazine that has a capacity of more than 10 rounds
of ammunition for a firearm.” See Md. Code Ann., Crim. Law § 4
- 305(b). A detachable magazine is defined as “an ammunition feeding device that can be removed readily from a firearm without requiring disassembly of the firearm action or without the use of a tool, including a bullet or cartridge.”Id.
§ 4-
301(f).
A person who violates the FSA is subject to criminal
prosecution and imprisonment for up to three years plus a fine
not exceeding $5,000. See Md. Code Ann., Crim. Law § 4-306
(a).
A longer prison term is mandatory if a person uses an assault
weapon or large-capacity magazine in the commission of a felony
or crime of violence, i.e., five to twenty years for a first
2
Although the FSA also identifies “assault pistol[s]” as
assault weapons, see Md. Code Ann., Crim. Law § 4-301
(c),
(d)(2), the plaintiffs have not challenged the FSA’s prohibition
against assault pistols. Thus, our discussion of the banned
assault weapons is limited to assault long guns and those
copycat weapons that are rifles and shotguns.
13
violation, and ten to twenty years for each subsequent
violation. See id.
§ 4-306(b).
Under the FSA’s exceptions, “[a] licensed firearms dealer
may continue to possess, sell, offer for sale, or transfer an
assault long gun or a copycat weapon that the licensed firearms
dealer lawfully possessed on or before October 1, 2013,” and
“[a] person who lawfully possessed, has a purchase order for, or
completed an application to purchase an assault long gun or a
copycat weapon before October 1, 2013, may . . . possess and
transport the assault long gun or copycat weapon.” See Md. Code Ann., Crim. Law § 4-303
(b)(2), (3)(i). The FSA does not ban the possession of a large-capacity magazine. Further, the FSA explicitly allows the receipt and possession of an assault weapon or large-capacity magazine by a retired Maryland law enforcement officer if the assault weapon or large-capacity magazine “is sold or transferred to the person by the law enforcement agency on retirement” or “was purchased or obtained by the person for official use with the law enforcement agency before retirement.”Id.
§ 4-302(7).
B.
On September 26, 2013, the plaintiffs filed their initial
Complaint in the District of Maryland. The following day, they
requested a temporary restraining order from the district court,
seeking to bar the defendants from enforcing the challenged
14
provisions of the FSA once it took effect on October 1, 2013.
The court conducted a hearing on October 1 and denied the
requested temporary restraining order from the bench.
Thereafter, the parties agreed that the court should proceed to
resolve the merits of the litigation on cross-motions for
summary judgment.
The operative Third Amended Complaint, filed on November
22, 2013, asks for declaratory and injunctive relief. It
alleges the FSA is facially unconstitutional in four respects:
(1) the assault weapons ban contravenes the Second Amendment;
(2) the prohibition against large-capacity magazines also
violates the Second Amendment; (3) the provision allowing
receipt and possession of assault weapons and large-capacity
magazines by retired Maryland law enforcement officers
contravenes the Equal Protection Clause of the Fourteenth
Amendment; and (4) the provision outlawing “copies” of the
rifles and shotguns enumerated in section 5-101(r)(2) of the
Public Safety Article violates the Fourteenth Amendment’s Due
Process Clause by being too vague to provide adequate notice of
the conduct proscribed.
The plaintiffs include Stephen V. Kolbe and Andrew Turner,
two Maryland residents who have asserted that they would
purchase assault weapons and large-capacity magazines but for
the FSA. Other plaintiffs are firearms dealers in Maryland and
15
firearms-related associations: Wink’s Sporting Goods,
Incorporated; Atlantic Guns, Incorporated; Associated Gun Clubs
of Baltimore, Incorporated; Maryland Shall Issue, Incorporated;
Maryland State Rifle and Pistol Association, Incorporated;
National Shooting Sports Foundation, Incorporated; and Maryland
Licensed Firearms Dealers Association, Incorporated. See Kolbe
v. O’Malley, 42 F. Supp. 3d 768
, 774 n.3 (D. Md. 2014) (concluding that “a credible threat of prosecution under the [FSA]” confers standing on individual plaintiffs Kolbe and Turner, and thus “jurisdiction is secure . . . whether or not the additional plaintiffs have standing” (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,429 U.S. 252
, 264
& n.9 (1977))).
The plaintiffs’ claims are made against four defendants in
their official capacities: Lawrence J. Hogan, Jr., Governor of
the State of Maryland, as successor to Martin J. O’Malley; Brian
E. Frosh, the State’s Attorney General, as successor to Douglas
F. Gansler; Colonel William M. Pallozzi, Secretary of the
Department of State Police and Superintendent of the Maryland
State Police, as successor to Colonel Marcus L. Brown; and the
Maryland State Police. We hereafter refer to the defendants
collectively as the “State.”
16 C. 1
.
In support of its motion for summary judgment, the State
proffered extensive uncontroverted evidence demonstrating that
the assault weapons outlawed by the FSA are exceptionally lethal
weapons of war. 3 A prime example of the State’s evidence is that
the most popular of the prohibited assault weapons — the AR-15
— is simply the semiautomatic version of the M16 rifle used by
our military and others around the world. Accord Staples v.
United States, 511 U.S. 600, 603
(1994) (observing that “[t]he
AR-15 is the civilian version of the military’s M-16 rifle, and
is, unless modified, a semiautomatic weapon”).
The State’s evidence imparts that the AR-15 was developed
after World War II for the U.S. military. It was designed as a
selective-fire rifle — one that can be fired in either automatic
mode (firing continuously as long as the trigger is depressed)
or semiautomatic mode (firing one round of ammunition for each
3 By the Opinion of August 22, 2014, explaining its award of
summary judgment to the State, the district court also denied
the plaintiffs’ motion to exclude certain of the State’s expert
and fact evidence. See Kolbe, 42 F. Supp. 3d at 775, 777-82
. In this appeal, the plaintiffs challenge the court’s evidentiary rulings. Because the court did not abuse its discretion in making the evidentiary rulings, we affirm those rulings and rely on evidence that the court properly declined to exclude. See Humphreys & Partners Architects, L.P. v. Lessard Design, Inc.,790 F.3d 532, 538
(4th Cir. 2015).
17
pull of the trigger and, after each round is fired,
automatically loading the next). In combat-style testing
conducted in 1959, it was “discovered that a 7- or even 5-man
squad armed with AR-15s could do as well or better in hit-and-
kill potential . . . than the traditional 11-man squad armed
with M14 rifles,” which were the heavier selective-fire rifles
then used by soldiers in the Army. See J.A. 930. 4 Subsequent
field testing in Vietnam, in 1962, revealed the AR-15 “to be a
very lethal combat weapon” that was “well-liked . . . for its
size and light recoil.” Id. at 968. Reports from that testing
indicated that “the very high-velocity AR-15 projectiles” had
caused “[a]mputations of limbs, massive body wounds, and
decapitations.” Id.
Within the next few years, the Department of Defense
purchased more than 100,000 AR-15 rifles for the Army and the
Air Force, and the military changed the name “AR-15” to “M16.”
By that time, the former Soviet Union was already producing the
AK-47, a selective-fire rifle which, like the AR-15/M16, was
developed for offensive use and has been adopted by militaries
around the world. Various firearms companies have since
manufactured civilian versions of the AR-15 and AK-47 that are
4
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
18
semiautomatic but otherwise retain the military features and
capabilities of the fully automatic M16 and AK-47. Several
other FSA-banned assault weapons are — like the AR-15 and
semiautomatic AK-47 — semiautomatic versions of machineguns
initially designed for military use. See, e.g., J.A. 1257 (UZI
and Galil rifles); id. at 1260 (Fabrique National (“FN”) assault
rifles); id. at 1261 (Steyr AUG rifles).
The difference between the fully automatic and
semiautomatic versions of those firearms is slight. That is,
the automatic firing of all the ammunition in a large-capacity
thirty-round magazine takes about two seconds, whereas a
semiautomatic rifle can empty the same magazine in as little as
five seconds. See, e.g., J.A. 1120 (“[S]emiautomatic weapons
can be fired at rates of 300 to 500 rounds per minute, making
them virtually indistinguishable in practical effect from
machineguns.”). Moreover, soldiers and police officers are
often advised to choose and use semiautomatic fire, because it
is more accurate and lethal than automatic fire in many combat
and law enforcement situations.
The AR-15, semiautomatic AK-47, and other assault weapons
banned by the FSA have a number of features designed to achieve
their principal purpose — “killing or disabling the enemy” on
the battlefield. See J.A. 735. For example, some of the banned
assault weapons incorporate flash suppressors, which are
19
designed to help conceal a shooter’s position by dispersing
muzzle flash. Others possess barrel shrouds, which enable
“spray-firing” by cooling the barrel and providing the shooter a
“convenient grip.” Id. at 1121. Additional military features
include folding and telescoping stocks, pistol grips, grenade
launchers, night sights, and the ability to accept bayonets and
large-capacity magazines.
Several manufacturers of the banned assault weapons, in
advertising them to the civilian market, tout their products’
battlefield prowess. Colt’s Manufacturing Company boasts that
its AR-15 rifles are manufactured “based on the same military
standards and specifications as the United States issue Colt M16
rifle and M4 carbine.” See J.A. 1693. Bushmaster describes its
Adaptive Combat Rifle as “the ultimate military combat weapons
system” that is “[b]uilt specifically for law enforcement and
tactical markets.” Id. at 1697.
In short, like their fully automatic counterparts, the
banned assault weapons “are firearms designed for the
battlefield, for the soldier to be able to shoot a large number
of rounds across a battlefield at a high rate of speed.” See
J.A. 206. Their design results in “a capability for lethality —
more wounds, more serious, in more victims — far beyond that of
other firearms in general, including other semiautomatic guns.”
Id. at 1121-22.
20
Correspondingly, the large-capacity magazines prohibited by
the FSA allow a shooter to fire more than ten rounds without
having to pause to reload, and thus “are particularly designed
and most suitable for military and law enforcement
applications.” See J.A. 891. Such magazines are “designed to
enhance” a shooter’s “capacity to shoot multiple human targets
very rapidly.” Id. at 1151. Large-capacity magazines are a
feature common, but not unique, to the banned assault weapons,
many of which are capable of accepting magazines of thirty,
fifty, or even 100 rounds.
With limited exceptions, M16s and other machineguns have
been banned nationwide since 1986. See 18 U.S.C. § 922
(o)(1) (rendering it “unlawful for any person to transfer or possess a machinegun”);26 U.S.C. § 5845
(b) (defining a “machinegun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger”). By that time, the private ownership of machineguns was substantially circumscribed as a result of heavy taxes and strict regulations imposed almost fifty years earlier by the National Firearms Act of 1934. See United States v. Miller,307 U.S. 174
(1939) (outlining 1934 Act’s requirements for
transferring and registering firearms, including short-barreled
shotguns and machineguns, and rejecting Second Amendment
21
challenge thereto). There have also been various state and
local prohibitions against the receipt, possession, and transfer
of machineguns.
In 1994, Congress enacted a ban on certain semiautomatic
military-style weapons and magazines capable of holding more
than ten rounds. The federal ban applied only to assault
weapons and magazines manufactured after September 13, 1994,
however, and it expired a decade later on September 13, 2004.
Just months before Congress passed the 1994 federal assault
weapons ban, Maryland had enacted a state law prohibiting
assault pistols and the transfer of magazines with a capacity in
excess of twenty rounds. The same state law regulated what the
FSA now identifies as assault long guns by requiring that
purchasers first complete an application and undergo a
background check. Maryland replaced that law with the FSA in
2013, spurred by Newtown and other mass shootings. 5
5
Dr. Christopher Koper, a social scientist who has studied
the effects of the 1994 federal assault weapons ban, explained
in these proceedings that the federal ban had several features
that may have limited its efficacy and that are not present in
Maryland’s FSA. One such feature was the federal ban’s broader
“grandfather” clause, rendering its prohibitions applicable
solely to assault weapons and large-capacity magazines
manufactured after the ban’s effective date of September 13,
1994. In contrast, the FSA grandfathers only assault weapons
owned prior to its effective date, and “does not allow the
further sale, transfer, or receipt of those firearms.” See J.A.
362. With respect to large-capacity magazines, or “LCMs,” the
FSA does not bar their transport into Maryland, but “is still
(Continued)
22
The State has calculated that — accepting the plaintiffs’
estimate that there were at least 8 million FSA-banned assault
weapons in circulation in the United States by 2013 — those
weapons comprised less than 3% of the more than 300 million
firearms in this country. Moreover, premised on the plaintiffs’
evidence that owners of the banned assault weapons possessed an
average of 3.1 of them in 2013, the State has reckoned that less
than 1% of Americans owned such a weapon that year.
At the same time, according to the State’s evidence, the
FSA-banned assault weapons have been used disproportionately to
their ownership in mass shootings and the murders of law
enforcement officers. Even more frequently, such incidents have
involved large-capacity magazines. One study of sixty-two mass
shootings between 1982 and 2012, for example, found that the
perpetrators were armed with assault rifles in 21% of the
massacres and with large-capacity magazines in 50% or more (as
it was unknown to the researchers whether large-capacity
magazines were involved in many of the cases). Another study
more stringent than the federal ban, which not only allowed the
possession of any existing LCMs, but also: (i) the importation
for sale of large stocks of LCMs from other countries; and
(ii) the ongoing sale, transfer, and receipt of both existing
stocks of LCMs and the newly-imported LCMs.” Id. at 363. The
federal assault weapons ban, in Koper’s words, “did not even
preclude individuals from going to the gun store around the
corner to purchase a [large-capacity magazine].” Id.
23
determined that assault weapons, including long guns and
handguns, were used in 16% of the murders of on-duty law
enforcement officers in 1994, and that large-capacity magazines
were used in 31% to 41% of those murders. The banned assault
weapons have also been used in other crimes, including the
infamous “D.C. Sniper” shootings in 2002, in which an AR-15-type
Bushmaster rifle was used to kill and critically injure more
than a dozen randomly selected victims, including several in
Maryland. 6
The State has emphasized that, when the banned assault
weapons and large-capacity magazines are used, more shots are
fired and more fatalities and injuries result than when shooters
use other firearms and magazines. The banned assault weapons
further pose a heightened risk to civilians in that “rounds from
assault weapons have the ability to easily penetrate most
materials used in standard home construction, car doors, and
similar materials.” See J.A. 279. Criminals armed with the
banned assault weapons possess a “military-style advantage” in
firefights with law enforcement officers, as such weapons “allow
6 Tragic events involving assault weapons continue to occur.
On July 7, 2016, a shooter armed with a semiautomatic assault
rifle killed five law enforcement officers and injured nine
others, plus two civilians, in Dallas, Texas. Just ten days
later, on July 17, 2016, another shooter armed with a
semiautomatic assault rifle shot six police officers in Baton
Rouge, Louisiana, killing three of them.
24
criminals to effectively engage law enforcement officers from
great distances” and “their rounds easily pass through the soft
body armor worn by most law enforcement officers.” See id. at
227, 265.
For their part, large-capacity magazines enable shooters to
inflict mass casualties while depriving victims and law
enforcement officers of opportunities to escape or overwhelm the
shooters while they reload their weapons. Even in the hands of
law-abiding citizens, large-capacity magazines are particularly
dangerous. The State’s evidence demonstrates that, when
inadequately trained civilians fire weapons equipped with large-
capacity magazines, they tend to fire more rounds than necessary
and thus endanger more bystanders.
The State has also underscored the lack of evidence that
the banned assault weapons and large-capacity magazines are
well-suited to self-defense. Neither the plaintiffs nor
Maryland law enforcement officials could identify a single
incident in which a Marylander has used a military-style rifle
or shotgun, or needed to fire more than ten rounds, to protect
herself. Although self-defense is a conceivable use of the
banned assault weapons, the State’s evidence reflects —
consistent with the Supreme Court’s Heller decision — that most
individuals choose to keep other firearms for that purpose. See
District of Columbia v. Heller, 554 U.S. 570, 628
(2008)
25
(emphasizing that handguns are “overwhelmingly chosen by
American society for [self-defense]”). Moreover, the State’s
evidence substantiates “that it is rare for a person, when using
a firearm in self-defense, to fire more than ten rounds.” See
J.A. 649. Studies of “armed citizen” stories collected by the
National Rifle Association, covering 1997-2001 and 2011-2013,
found that the average number of shots fired in self-defense was
2.2 and 2.1, respectively. Id. at 650
.
In support of the FSA, the State garnered evidence showing
that the prohibitions against assault weapons and large-capacity
magazines will promote public safety by reducing the
availability of those armaments to mass shooters and other
criminals, by diminishing their especial threat to law
enforcement officers, and by hindering their unintentional
misuse by civilians. The State does not expect the FSA to
eradicate all gun crimes and accidents, but rather to curtail
those that result in more shots fired and more deaths and
injuries because they are committed with military-style firearms
and magazines.
The State’s evidence indicates that the FSA will reduce the
availability of the banned assault weapons and large-capacity
magazines to criminals by “reducing their availability overall.”
See J.A. 228. That is because criminals usually obtain their
firearms through straw purchases, by buying them on the
26
secondary market, or by stealing them from law-abiding persons,
and most criminals “are simply not dedicated enough to a
particular type of firearm or magazine to go to great lengths to
acquire something that is not readily available.” Id. at 232.
The State has also pointed to an important lesson learned
from Newtown (where nine children were able to run from a
targeted classroom while the gunman paused to change out a
large-capacity thirty-round magazine), Tucson (where the shooter
was finally tackled and restrained by bystanders while reloading
his firearm), and Aurora (where a 100-round drum magazine was
emptied without any significant break in the firing). That is,
reducing the number of rounds that can be fired without
reloading increases the odds that lives will be spared in a mass
shooting. For example, a shooter’s use of ten-round magazines —
rather than those that hold thirty, fifty, or 100 rounds — would
for every 100 rounds fired afford
six to nine more chances for bystanders or law
enforcement to intervene during a pause in firing, six
to nine more chances for something to go wrong with a
magazine during a change, six to nine more chances for
the shooter to have problems quickly changing a
magazine under intense pressure, and six to nine more
chances for potential victims to find safety during a
pause in firing.
See J.A. 266. Thus, the State has justified the FSA on the
ground that limiting a shooter to a ten-round magazine could
27
“mean the difference between life and death for many people.”
Id.
2.
For their part, the plaintiffs have purported to dispute
the State’s evidence equating the FSA-banned assault weapons
with the M16, but have not produced evidence actually
demonstrating that the banned assault weapons are less dangerous
than or materially distinguishable from military arms.
Otherwise, the plaintiffs have emphasized the popularity of the
banned assault weapons, particularly the AR-15, semiautomatic
AK-47, and their copies. Those weapons are often referred to by
the plaintiffs, and in their evidence, as “modern sporting
rifles.”
As previously mentioned, the plaintiffs have asserted that
there were at least 8 million FSA-banned assault weapons in
circulation in the United States by 2013. Rifles based on the
AR-15 and AK-47 accounted for approximately 20% of firearm sales
in the United States in 2012, and the banned assault weapons
comprised between 18% and 30% of all regulated firearm transfers
in Maryland in 2013. The plaintiffs’ evidence reflects that,
since it was first marketed to the public in 1963, “[t]he AR-15
has become the most popular civilian rifle design in America,
and is made in many variations by many companies.” See J.A.
2259.
28
The plaintiffs have also focused on the popularity of
large-capacity magazines, tendering evidence that in the United
States between 1990 and 2012, magazines capable of holding more
than ten rounds numbered around 75 million, or 46% of all
magazines owned. Most pistols are manufactured with magazines
holding ten to seventeen rounds, and many popular rifles are
manufactured with magazines holding twenty or thirty rounds.
Firearms capable of firing more than ten rounds without
reloading may have existed since the late sixteenth century, and
magazines with a capacity of between ten and twenty rounds have
been on the civilian market for more than a hundred years.
Individual plaintiffs Kolbe and Turner have averred that
they wish to own banned assault weapons and large-capacity
magazines for self-defense. The plaintiffs have more generally
asserted that many owners of assault weapons cite home
protection as a reason for keeping those weapons, along with
other lawful purposes such as hunting and competitive
marksmanship. 7 The plaintiffs regard large-capacity magazines as
7
Prior to the en banc argument, we allowed the plaintiffs
to file a supplemental appendix containing two reports published
in 2015 by the National Shooting Sports Foundation (the “NSSF”),
including a “Firearms Retailer Survey Report” outlining the
results of an online survey of more than 500 firearms retailers
across the country. Relevant to the issue of self-defense, one
survey question asked: “Of your annual firearm sales [for each
year from 2011 to 2014], please report the percentages you think
were sold primarily for hunting, target-shooting and personal-
(Continued)
29
especially useful for self-defense, because it is difficult for
a civilian to change a magazine while under the stress of
defending herself and her family from an unexpected attack.
Moreover, a civilian firing rounds in self-defense will
frequently miss her assailant, rendering it “of paramount
importance that [she] have quick and ready access to ammunition
in quantities sufficient to provide a meaningful opportunity to
defend herself and/or her loved ones.” See J.A. 2123.
To refute the theory that the FSA will effectuate
Maryland’s goal of protecting its citizens and law enforcement
officers, the plaintiffs have pointed to a variety of evidence.
For example, the FSA does not disallow the Colt AR-15 Sporter H-
BAR rifle, which the plaintiffs’ evidence suggests “could be
made into a compact lightweight short-barrel AR pattern rifle
identical to the restricted models” while remaining “exempted
from the restrictions of the law.” See J.A. 2270-71. The
plaintiffs’ evidence also indicates that rounds from firearms
not prohibited by the FSA are capable of penetrating building
materials and soft body armor; that “[t]he banned firearms are
protection purposes.” See J.A. 3063. The respondents indicated
that they “think” between 28.1% and 30.5% of “AR-style/modern
sporting rifles” were sold primarily for personal protection.
Id. The NSSF report, however, does not reveal why the
respondents “think” that.
30
almost never used in crimes”; that, “in 2012, there was a
greater probability that a person in the United States would be
killed by someone strangling them than by an assault rifle in a
mass shooting”; and that “[m]ore officers are killed in car
accidents than with the banned firearms.” See id. at 2160,
2280-81, 2371-97. Additionally, the plaintiffs have emphasized
that, because the FSA does not prohibit the possession of large-
capacity magazines, a criminal can legally purchase those
magazines in another state and return with them to Maryland. 8
II.
On appeal, the plaintiffs contend that the district court
erred in ruling in favor of the State on the parties’ cross-
motions for summary judgment. More specifically, the plaintiffs
8
Further attacking Maryland’s justification for the FSA,
the plaintiffs have endeavored to show that the 1994 federal ban
on assault weapons and large-capacity magazines was ineffective,
and thus that the FSA will be a failure, too. In so doing, the
plaintiffs rely on snippets from the studies of the State’s
expert, Dr. Koper. See supra note 5. Dr. Koper ultimately
concluded, however, that — despite features of the federal ban
that may have limited its efficacy (including its grandfather
clause for assault weapons and large-capacity magazines
manufactured prior to its effective date) — the federal ban had
some success and could have had more had it remained in effect.
Additionally, Dr. Koper opined that Maryland’s stricter FSA has
“the potential to prevent and limit shooting injuries in the
state over the long-run” and thereby “advance Maryland’s
interest in reducing the harms caused by gun violence.” See
J.A. 364.
31
seek reversal of the adverse summary judgment award and entry of
judgment in their favor. We review de novo the district court’s
summary judgment decision. See Libertarian Party of Va. v.
Judd, 718 F.3d 308, 312
(4th Cir. 2013). With respect to each side’s motion, “we are required to view the facts and all justifiable inferences arising therefrom in the light most favorable to the nonmoving party, in order to determine whether ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”Id.
at
312-13 (quoting Fed. R. Civ. P. 56(a)).
III.
We begin with the plaintiffs’ claims that the FSA’s assault
weapons ban and its prohibition against large-capacity magazines
contravene the Second Amendment. According to the plaintiffs,
they are entitled to summary judgment on the simple premise that
the banned assault weapons and large-capacity magazines are
protected by the Second Amendment and, thus, the FSA is
unconstitutional per se. We conclude, to the contrary, that the
banned assault weapons and large-capacity magazines are not
constitutionally protected arms. Even assuming the Second
Amendment reaches those weapons and magazines, however, the FSA
is subject to — and readily survives — the intermediate
scrutiny standard of review. Consequently, as to the Second
32
Amendment claims, we must affirm the district court’s award of
summary judgment to the State.
A.
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.” See
U.S. Const. amend. II. In District of Columbia v. Heller, the
Supreme Court recognized that the Second Amendment is divided
into a prefatory clause (“A well regulated Militia, being
necessary to the security of a free State, . . .”) and an
operative clause (“. . . the right of the people to keep and
bear Arms, shall not be infringed.”). See 554 U.S. 570, 577
(2008). The Heller majority rejected the proposition that, because of its prefatory clause, the Second Amendment “protects only the right to possess and carry a firearm in connection with militia service.”Id.
Rather, the Court determined that, by its operative clause, the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation.”Id. at 592
. The Court also explained that the operative clause “fits perfectly” with the prefatory clause, in that creating the individual right to keep and bear arms served to preserve the militia that consisted of self-armed citizens at the time of the Second Amendment’s ratification.Id. at 598
.
33
The Second Amendment’s “core protection,” the Heller Court
announced, is “the right of law-abiding, responsible citizens to
use arms in defense of hearth and home.” See 554 U.S. at 634
- 35. Concomitantly, the Court emphasized that “the right secured by the Second Amendment is not unlimited,” in that it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”Id. at 626
. The Court cautioned, for example, that it was not “cast[ing] 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.
Of utmost significance here, the Heller Court recognized
that “another important limitation on the right to keep and
carry arms” is that the right “extends only to certain types of
weapons.” See 554 U.S. at 623, 627
(discussing United States v. Miller,307 U.S. 174
(1939)). The Court explained that “the
Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes,”
including “short-barreled shotguns” and “machineguns.” Id. at
624-25. The Court elsewhere described “the sorts of weapons
protected” as being “those in common use at the time,” and
observed that such “limitation is fairly supported by the
34
historical tradition of prohibiting the carrying of dangerous
and unusual weapons.” Id. at 627 (internal quotation marks
omitted) (citing, inter alia, 4 Blackstone 148-49 (1769)). 9
Continuing on, the Heller Court specified that “weapons
that are most useful in military service — M-16 rifles and the
like — may be banned” without infringement upon the Second
Amendment right. See 554 U.S. at 627
. The Court recognized that the lack of constitutional protection for today’s military weapons might inspire the argument that “the Second Amendment right is completely detached from the prefatory clause.”Id.
The Court explained, however, that the fit between the prefatory and operative clauses is properly measured “at the time of the Second Amendment’s ratification,” when “the conception of the militia . . . was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”Id.
The fit is not measured today, when a militia may “require sophisticated arms that are highly unusual in society at large,” including arms that “could be useful against modern-day bombers and tanks.”Id.
It was therefore immaterial to the Court’s interpretation
9
Although the Heller Court invoked Blackstone for the
proposition that “dangerous and unusual” weapons have
historically been prohibited, Blackstone referred to the crime
of carrying “dangerous or unusual weapons.” See 4 Blackstone
148-49 (1769) (emphasis added).
35
of the Second Amendment that “modern developments have limited
the degree of fit between the prefatory clause and the protected
right.” Id. at 627-28
. And thus, there was simply no
inconsistency between the Court’s interpretation of the Second
Amendment and its pronouncement that some of today’s weapons
lack constitutional protection precisely because they “are most
useful in military service.”
Deciding the particular Second Amendment issues before it,
the Heller Court deemed the District of Columbia’s prohibition
against the possession of handguns in the home to be
unconstitutional. See 554 U.S. at 628-29
. Without identifying and utilizing a particular standard for its review, the Court concluded that, “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family would fail constitutional muster.”Id.
(footnote and internal quotation
marks omitted).
The Heller Court clearly was concerned that the District of
Columbia’s ban extended “to the home, where the need for defense
of self, family, and property is most acute.” See 554 U.S. at 628
. Significantly, however, the Court also was troubled by the
particular type of weapon prohibited — handguns. Indeed, the
Court repeatedly made comments underscoring the status of
36
handguns as “the most preferred firearm in the nation to keep
and use for protection of one’s home and family,” including the
following:
● “The handgun ban amounts to a prohibition of an
entire class of arms that is overwhelmingly
chosen by American society for [the] lawful
purpose [of self-defense]”;
● “It is no answer to say . . . that it is
permissible to ban the possession of handguns so
long as the possession of other firearms (i.e.,
long guns) is allowed. It is enough to note
. . . that the American people have considered
the handgun to be the quintessential self-defense
weapon”; and,
● “Whatever the reason, handguns are the most
popular weapon chosen by Americans for self-
defense in the home, and a complete prohibition
of their use is invalid.”
See id. at 628-29
(internal quotation marks omitted).
As explained therein, the Heller decision was not intended
“to clarify the entire field” of Second Amendment jurisprudence.
See 554 U.S. at 635
. Since then, the Supreme Court decided in McDonald v. City of Chicago “that the Second Amendment right is fully applicable to the States,” but did not otherwise amplify Heller’s analysis. See561 U.S. 742, 750
(2010). Just
recently, in Caetano v. Massachusetts, the Court reiterated two
points made by Heller: first, “that the Second Amendment
‘extends . . . to . . . arms . . . that were not in existence at
the time of the founding’”; and, second, that there is no merit
to “the proposition ‘that only those weapons useful in warfare
37
are protected.’” See Caetano, 136 S. Ct. 1027, 1028
(2016) (per curiam) (alterations in original) (quoting Heller,554 U.S. at 582, 624-25
) (remanding for further consideration of whether
Second Amendment protects stun guns).
The lower courts have grappled with Heller in a variety of
Second Amendment cases. Like most of our sister courts of
appeals, we have concluded that “a two-part approach to Second
Amendment claims seems appropriate under Heller.” See United
States v. Chester, 628 F.3d 673, 680
(4th Cir. 2010) (citing United States v. Marzzarella,614 F.3d 85, 89
(3d Cir. 2010)); see also N.Y. State Rifle & Pistol Ass’n v. Cuomo,804 F.3d 242, 254
(2d Cir. 2015); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs,788 F.3d 1318, 1322
(11th Cir. 2015); United States v. Chovan,735 F.3d 1127, 1136
(9th Cir. 2013); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives,700 F.3d 185, 194
(5th Cir. 2012); United States v. Greeno,679 F.3d 510, 518
(6th Cir. 2012); Heller v. District of Columbia,670 F.3d 1244, 1252
(D.C. Cir. 2011) (“Heller II”); Ezell v. City of Chicago,651 F.3d 684, 703-04
(7th Cir. 2011); United States v. Reese,627 F.3d 792, 800-01
(10th Cir. 2010).
Pursuant to that two-part approach, we first ask “whether
the challenged law imposes a burden on conduct falling within
the scope of the Second Amendment’s guarantee.” See Chester,
628 F.3d at 680
(internal quotation marks omitted). If the
38
answer is no, “then the challenged law is valid.” Id.
If, however, the challenged law imposes a burden on conduct protected by the Second Amendment, we next “apply[] an appropriate form of means-end scrutiny.”Id.
Because “Heller left open the level of scrutiny applicable to review a law that burdens conduct protected under the Second Amendment, other than to indicate that rational-basis review would not apply in this context,” we must “select between strict scrutiny and intermediate scrutiny.”Id. at 682
. In pinpointing the applicable standard of review, we may “look[] to the First Amendment as a guide.”Id.
With respect to a claim made pursuant to the First or the Second Amendment, “the level of scrutiny we apply depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.”Id.
To satisfy strict scrutiny, the government must prove that
the challenged law is “narrowly tailored to achieve a compelling
governmental interest.” See Abrams v. Johnson, 521 U.S. 74, 82
(1997). Strict scrutiny is thereby “the most demanding test known to constitutional law.” See City of Boerne v. Flores,521 U.S. 507, 534
(1997). The less onerous standard of intermediate scrutiny requires the government to show that the challenged law “is reasonably adapted to a substantial governmental interest.” See United States v. Masciandaro,638 F.3d 458, 471
(4th Cir.
39
2011); see also Chester, 628 F.3d at 683
(“[T]he government must demonstrate under the intermediate scrutiny standard that there is a reasonable fit between the challenged regulation and a substantial governmental objective.” (internal quotation marks omitted)). Intermediate scrutiny does not demand that the challenged law “be the least intrusive means of achieving the relevant government objective, or that there be no burden whatsoever on the individual right in question.” See Masciandaro,638 F.3d at 474
. In other words, there must be “a fit that is ‘reasonable, not perfect.’” See Woollard v. Gallagher,712 F.3d 865, 878
(4th Cir. 2013) (quoting United States v. Carter,669 F.3d 411, 417
(4th Cir. 2012)).
Until this Second Amendment challenge to the FSA’s bans on
assault weapons and large-capacity magazines, we have not had
occasion to identify the standard of review applicable to a law
that bars law-abiding citizens from possessing arms in their
homes. In Masciandaro, we “assume[d] that any law that would
burden the ‘fundamental,’ core right of self-defense in the home
by a law-abiding citizen would be subject to strict scrutiny.”
See 638 F.3d at 470
. Thereafter, in Woollard, we noted that
Masciandaro had “‘assume[d]’” any inside-the-home regulation
would be subject to strict scrutiny, and we described the
plaintiff’s related — and unsuccessful — contention that “the
right to arm oneself in public [is] on equal footing with the
40
right to arm oneself at home, necessitating that we apply strict
scrutiny in our review of [an outside-the-home regulation].”
See Woollard, 712 F.3d at 876, 878
(4th Cir. 2013) (quoting Masciandaro,638 F.3d at 470
). Notably, however, neither Masciandaro nor Woollard purported to, or had reason to, decide whether strict scrutiny always, or even ever, applies to laws burdening the right of self-defense in the home. See also, e.g., United States v. Hosford,843 F.3d 161, 168
(4th Cir.
2016) (declining to apply strict scrutiny to a firearms
prohibition that “addresses only conduct occurring outside the
home,” without deciding if or when strict scrutiny applies to a
law reaching inside the home).
B.
Guided by our two-part approach to Second Amendment claims,
but lacking precedent of this Court or the Supreme Court
examining the constitutionality of a law substantively similar
to the FSA, the district court began its analysis by questioning
whether the banned assault weapons and large-capacity magazines
are protected by the Second Amendment. Addressing assault
weapons in particular, the Opinion disclosed the court’s
“inclin[ation] to find the weapons fall outside Second Amendment
protection as dangerous and unusual,” based on “serious[] doubts
that [they] are commonly possessed for lawful purposes,
particularly self-defense in the home.” See Kolbe v. O’Malley,
41
42 F. Supp. 3d 768, 788
(D. Md. 2014). The Opinion further observed that, “[g]iven that assault rifles like the AR-15 are essentially the functional equivalent of M-16s — and arguably more effective — the [reasoning of Heller that M-16s could be banned as dangerous and unusual] would seem to apply here.”Id.
at 789 n.29 (citing Heller,554 U.S. at 627
).
Ultimately, however, the district court elected to assume
that the banned assault weapons and large-capacity magazines are
constitutionally protected, and thus that the FSA “places some
burden on the Second Amendment right.” See Kolbe, 42 F. Supp. 3d at 789
. The Opinion then identified intermediate scrutiny as the appropriate standard of review, because the FSA “does not seriously impact a person’s ability to defend himself in the home.”Id. at 790
. In so ruling, the court recognized that the FSA “does not ban the quintessential weapon — the handgun — used for self-defense in the home” or “prevent an individual from keeping a suitable weapon for protection in the home.”Id. at 790
. Finally, applying the intermediate scrutiny standard, the Opinion recognized that the State of Maryland possesses an interest that is not just substantial — but compelling — “in providing for public safety and preventing crime.”Id. at 792
.
A reasonable fit between that interest and the FSA was shown,
according to the Opinion, by evidence of the heightened risks
that the banned assault weapons and large-capacity magazines
42
pose to civilians and law enforcement officers. See id.
at 793- 97. Accordingly, the district court concluded that the FSA “does not violate the Second Amendment.”Id. at 797
.
In its analysis, the district court relied in part on the
2011 decision of the District of Columbia Circuit in Heller II.
The Heller II court assumed that the District’s prohibitions
against military-style assault rifles and large-capacity
magazines impinge upon the Second Amendment right and then
upheld the bans under the intermediate scrutiny standard. See
670 F.3d at 1261-64
. After the district court issued its Opinion, statewide bans on the AR-15 and semiautomatic AK-47, other assault weapons, and large-capacity magazines in New York and Connecticut were similarly sustained by the Second Circuit’s 2015 decision in N.Y. State Rifle & Pistol Ass’n. There, the court of appeals proceeded “on the assumption that [the challenged] laws ban weapons protected by the Second Amendment”; determined “that intermediate, rather than strict, scrutiny is appropriate”; and concluded “that New York and Connecticut have adequately established a substantial relationship between the prohibition of both semiautomatic assault weapons and large- capacity magazines and the important — indeed, compelling — state interest in controlling crime.” See N.Y. State Rifle & Pistol Ass’n,804 F.3d at 257, 260, 264
. The Supreme Court
recently denied the Connecticut plaintiffs’ petition for a writ
43
of certiorari in that matter. See Shew v. Malloy, 136 S. Ct. 2486
(2016).
In the time period between Heller II and N.Y. State Rifle &
Pistol Ass’n, two other courts of appeals refused to enjoin or
strike down bans on assault weapons or large-capacity magazines.
Affirming the denial of a preliminary injunction in Fyock v.
City of Sunnyvale, the Ninth Circuit concluded that the district
court neither “clearly err[ed] in finding, based on the record
before it, that a regulation restricting possession of [large-
capacity magazines] burdens conduct falling within the scope of
the Second Amendment,” nor “abused its discretion by applying
intermediate scrutiny or by finding that [the regulation]
survived intermediate scrutiny.” See 779 F.3d 991, 998-99
(9th
Cir. 2015). Thereafter, in Friedman v. City of Highland Park,
the Seventh Circuit upheld prohibitions against assault weapons
and large-capacity magazines, albeit without applying either
intermediate or strict scrutiny. Under Friedman’s reasoning,
“instead of trying to decide what ‘level’ of scrutiny applies,
and how it works,” it is more suitable “to ask whether a
regulation bans weapons that were common at the time of
ratification or those that have some reasonable relationship to
the preservation or efficiency of a well regulated militia, and
whether law-abiding citizens retain adequate means of self-
44
defense.” See 784 F.3d 406, 410
(7th Cir.) (internal quotation marks omitted), cert. denied,136 S. Ct. 447
(2015).
C.
We could resolve the Second Amendment aspects of this
appeal by adopting the district court’s sound analysis and
thereby follow the lead of our distinguished colleagues on the
Second and District of Columbia Circuits. That is, we could
simply assume that the assault weapons and large-capacity
magazines outlawed in Maryland are protected by the Second
Amendment and then deem the FSA constitutional under the
intermediate scrutiny standard of review. It is more
appropriate, however, in light of the dissent’s view that such
constitutional protection exists, that we first acknowledge what
the Supreme Court’s Heller decision makes clear: Because the
banned assault weapons and large-capacity magazines are “like”
“M-16 rifles” — “weapons that are most useful in military
service” — they are among those arms that the Second Amendment
does not shield. See Heller, 554 U.S. at 627
(recognizing that
“M-16 rifles and the like” are not constitutionally protected).
1.
On the issue of whether the banned assault weapons and
large-capacity magazines are protected by the Second Amendment,
the Heller decision raises various questions. Those include:
How many assault weapons and large-capacity magazines must there
45
be to consider them “in common use at the time”? In resolving
that issue, should we focus on how many assault weapons and
large-capacity magazines are owned; or on how many owners there
are; or on how many of the weapons and magazines are merely in
circulation? Do we count the weapons and magazines in Maryland
only, or in all of the United States? Is being “in common use
at the time” coextensive with being “typically possessed by law-
abiding citizens for lawful purposes”? Must the assault weapons
and large-capacity magazines be possessed for any “lawful
purpose[]” or, more particularly and importantly, the
“protection of one’s home and family”? Is not being “in common
use at the time” the same as being “dangerous and unusual”? Is
the standard “dangerous and unusual,” or is it actually
“dangerous or unusual”? See Heller, 554 U.S. at 625, 627, 629
; see also N.Y. State Rifle & Pistol Ass’n,804 F.3d at 254-57
; Friedman,784 F.3d at 408-10
; Fyock,779 F.3d at 997-98
; Heller II,670 F.3d at 1260-61
.
Thankfully, however, we need not answer all those difficult
questions today, because Heller also presents us with a
dispositive and relatively easy inquiry: Are the banned assault
weapons and large-capacity magazines “like” “M-16 rifles,” i.e.,
“weapons that are most useful in military service,” and thus
outside the ambit of the Second Amendment? See 554 U.S. at 627
.
46
The answer to that dispositive and relatively easy inquiry is
plainly in the affirmative. 10
Simply put, AR-15-type rifles are “like” M16 rifles under
any standard definition of that term. See, e.g., Webster’s New
International Dictionary 1431 (2d ed. 1948) (defining “like” as
“[h]aving the same, or nearly the same, appearance, qualities,
or characteristics; similar”); The New Oxford American
Dictionary 982 (2d ed. 2005) (defining “like” as “having the
same characteristics or qualities as; similar to”). Although an
10 Our ruling on Second Amendment protection is in line with
the State’s argument that — because the banned assault weapons
and large-capacity magazines are “like” “M-16 rifles” and “most
useful in military service” — they are “dangerous and unusual
weapons” that are beyond the Second Amendment’s reach. See
Heller, 554 U.S. at 627
; see also Br. of Appellees at 2-4, 16- 23; Defs.’ Mem. in Supp. of Summ. J. at 3-10, 32-37, Kolbe v. O’Malley, No. 1:13-cv-02841 (D. Md. Feb. 14, 2014), ECF No. 44. We find it unnecessary under Heller, however, to include the term “dangerous and unusual weapons” in the relevant inquiry. That is because the Heller Court plainly pronounced that “weapons that are most useful in military service — M-16 rifles and the like — may be banned” without infringement upon the Second Amendment right. See554 U.S. at 627
. Meanwhile, although the Heller Court suggested that those particular weapons are “dangerous and unusual,” the Court did not elaborate on what being “dangerous and unusual” entails.Id.
In these
circumstances, we deem it prudent and appropriate to simply rely
on the Court’s clear pronouncement that there is no
constitutional protection for weapons that are “like” “M-16
rifles” and “most useful in military service,” without
needlessly endeavoring to define the parameters of “dangerous
and unusual weapons.” Questions about that term and the phrases
“in common use at the time” and “typically possessed by law-
abiding citizens for lawful purposes” are best left for cases
involving other sorts of weapons, such as the stun guns at issue
in Caetano.
47
M16 rifle is capable of fully automatic fire and the AR-15 is
limited to semiautomatic fire, their rates of fire (two seconds
and as little as five seconds, respectively, to empty a thirty-
round magazine) are nearly identical. Moreover, in many
situations, the semiautomatic fire of an AR-15 is more accurate
and lethal than the automatic fire of an M16. Otherwise, the
AR-15 shares the military features — the very qualities and
characteristics — that make the M16 a devastating and lethal
weapon of war.
In any event, we need not rely solely on dictionary
definitions, because Heller itself expounds on what it means to
be “like” the M16. As the plaintiffs would have it, Heller drew
a “bright line” between fully automatic and semiautomatic
firearms, and thus the AR-15 cannot be considered “like” the M16
for purposes of the Second Amendment. That contention is
baseless, however, because Heller did not restrict the meaning
of “M-16 rifles and the like” to only fully automatic weapons.
Rather, Heller described “M-16 rifles and the like” more
broadly, specifically identifying them as being those “weapons
that are most useful in military service.” Therefore, we
identify the line that Heller drew as not being between fully
48
automatic and semiautomatic firearms, but between weapons that
are most useful in military service and those that are not. 11
Whatever their other potential uses — including self-
defense — the AR-15, other assault weapons, and large-capacity
magazines prohibited by the FSA are unquestionably most useful
in military service. That is, the banned assault weapons are
designed to “kill[] or disabl[e] the enemy” on the battlefield.
See J.A. 735. The very features that qualify a firearm as a
banned assault weapon — such as flash suppressors, barrel
shrouds, folding and telescoping stocks, pistol grips, grenade
launchers, night sights, and the ability to accept bayonets and
large-capacity magazines — “serve specific, combat-functional
ends.” See id. at 1120. And, “[t]he net effect of these
11 As further support for the Supreme Court’s purported line
between fully automatic and semiautomatic firearms, the
plaintiffs rely on Staples v. United States, 511 U.S. 600
(1994). There, the Court invalidated Staples’s conviction for failing to register a machinegun, because the government had not been required to prove that Staples knew his AR-15 had been modified to be capable of fully automatic fire. In explaining its decision, the Court noted that AR-15s “traditionally have been widely accepted as lawful possessions” in this country. See Staples,511 U.S. at 612
. That statement might be pertinent to this dispute if the State were arguing that the FSA is a “longstanding prohibition[]” against assault weapons and thus presumptively valid. See Heller,554 U.S. at 626
(cautioning
that “nothing in our opinion should be taken to cast doubt on
[certain] longstanding prohibitions”). But the issue actually
before us is one that the Staples Court did not address:
Whether, because of its likeness to the M16 rifle, the AR-15
lacks Second Amendment protection.
49
military combat features is a capability for lethality — more
wounds, more serious, in more victims — far beyond that of other
firearms in general, including other semiautomatic guns.” Id.
at 1121-22.
Likewise, the banned large-capacity magazines “are
particularly designed and most suitable for military and law
enforcement applications.” See J.A. 891 (noting that large-
capacity magazines are meant to “provide[] soldiers with a large
ammunition supply and the ability to reload rapidly”). Large-
capacity magazines enable a shooter to hit “multiple human
targets very rapidly”; “contribute to the unique function of any
assault weapon to deliver extraordinary firepower”; and are a
“uniquely military feature[]” of both the banned assault weapons
and other firearms to which they may be attached. See id. at
1151.
Because the banned assault weapons and large-capacity
magazines are clearly most useful in military service, we are
compelled by Heller to recognize that those weapons and
magazines are not constitutionally protected. On that basis, we
affirm the district court’s award of summary judgment in favor
50
of the State with respect to the plaintiffs’ Second Amendment
claims. 12
2.
In the alternative, assuming that the assault weapons and
large-capacity magazines prohibited by the FSA are somehow
entitled to Second Amendment protection, we conclude that the
district court properly upheld the FSA as constitutional under
the intermediate scrutiny standard of review.
a.
First of all, intermediate scrutiny is the appropriate
standard because the FSA does not severely burden the core
protection of the Second Amendment, i.e., the right of law-
abiding, responsible citizens to use arms for self-defense in
the home. See N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 260
(“Heightened scrutiny need not . . . be akin to strict scrutiny
when a law burdens the Second Amendment — particularly when that
burden does not constrain the Amendment’s core area of
12 In light of our ruling today, we need not reach the
State’s alternative contention that large-capacity magazines
lack constitutional protection because they are not “arms”
within the meaning of the Second Amendment. See Heller, 554 U.S. at 582
(observing that the Second Amendment extends to
“bearable arms”); Br. of Appellees at 26 (“A large-capacity
detachable magazine is not an ‘arm’ . . . . Indeed, large-
capacity magazines are not even ammunition, but instead are
devices used for feeding ammunition into firearms that can
easily be switched out for other devices that are of lower
capacity . . . .”).
51
protection.” (internal quotation marks omitted)); Chester, 628 F.3d at 682
(“A severe burden on the core Second Amendment right of armed self-defense should require strong justification. But less severe burdens on the right . . . may be more easily justified.” (quoting United States v. Skoien,587 F.3d 803
, 813- 14 (7th Cir. 2009), rev’d en banc,614 F.3d 638
(7th Cir.
2010))).
The FSA bans only certain military-style weapons and
detachable magazines, leaving citizens free to protect
themselves with a plethora of other firearms and ammunition.
Those include magazines holding ten or fewer rounds,
nonautomatic and some semiautomatic long guns, and — most
importantly — handguns. The handgun, of course, is “the
quintessential self-defense weapon.” See Heller, 554 U.S. at 629
. In contrast, there is scant evidence in the record before us that the FSA-banned assault weapons and large-capacity magazines are possessed, or even suitable, for self-protection. See Kolbe,42 F. Supp. 3d at 791
(observing that, although the
FSA prohibits “a class of weapons that the plaintiffs desire to
use for self-defense in the home, there is no evidence
demonstrating their removal will significantly impact the core
protection of the Second Amendment” (emphasis and citation
omitted)).
52
Notably, the plaintiffs invoke the district court’s passing
reference to “a class of weapons” in an effort to frame the AR-
15 and other FSA-banned assault weapons as a “class” entitled to
the same treatment afforded handguns in Heller. See Heller, 554 U.S. at 628
(deeming the District of Columbia’s handgun ban to be unconstitutional because it prohibited “an entire class of arms that is overwhelmingly chosen by American society for [self-defense]” (internal quotation marks omitted)). The initial weakness in the plaintiffs’ theory is that the banned assault weapons cannot fairly be said to be a “class” like that encompassing all handguns, in that the banned assault weapons are just some of the semiautomatic rifles and shotguns in existence. Accord N.Y. State Rifle & Pistol Ass’n,804 F.3d at 260
(explaining that “New York and Connecticut have not banned
an entire class of arms,” but rather “only a limited subset of
semiautomatic firearms, which contain one or more enumerated
military-style features”).
The more critical flaw in the plaintiffs’ theory is that it
ignores the status of handguns as not merely “an entire class of
arms,” but as “an entire class of arms that is overwhelmingly
chosen by American society for [self-defense].” See Heller, 554 U.S. at 628
(emphasis added) (internal quotation marks omitted).
As the Third Circuit recently explained, “Heller gives special
consideration to the District of Columbia’s categorical ban on
53
handguns because they ‘are the most popular weapon chosen by
Americans for self-defense in the home.’ This does not mean
that a categorical ban on any particular type of bearable arm is
unconstitutional.” See United States v. One (1) Palmetto State
Armory PA-15 Machinegun Receiver/Frame, Unknown Caliber Serial
No.: LW001804, 822 F.3d 136, 144
(3d Cir. 2016) (quoting Heller,554 U.S. at 629
).
At bottom, the FSA’s prohibitions against assault weapons
and large-capacity magazines simply do “not effectively disarm
individuals or substantially affect their ability to defend
themselves.” See N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 260
(quoting Heller II,670 F.3d at 1262
). Nor can the FSA be
compared to the handgun ban struck down as unconstitutional in
Heller. Hence, assuming the Second Amendment protects the FSA-
banned assault weapons and large-capacity magazines, the FSA is
subject to the intermediate scrutiny standard of review.
b.
Turning to the application of intermediate scrutiny, the
FSA survives such review because its prohibitions against
assault weapons and large-capacity magazines are — as they must
be — “reasonably adapted to a substantial governmental
interest.” See Masciandaro, 638 F.3d at 471
. To be sure, Maryland’s interest in the protection of its citizenry and the public safety is not only substantial, but compelling. Seeid.
54
at 473 (noting that, “[a]lthough the government’s interest need
not be ‘compelling’ under intermediate scrutiny, cases have
sometimes described the government’s interest in public safety
in that fashion” (citing cases)).
The plaintiffs have acknowledged that Maryland has a
compelling interest in protecting the public, but argue that
such purpose cannot be advanced by the FSA. In support, the
plaintiffs have pointed to evidence that non-banned firearms
have some of the same attributes as the FSA-banned assault
weapons, including the capability to penetrate building
materials and soft body armor; that the banned assault weapons
are used in few crimes, especially compared to handguns; and
that the FSA will not prevent criminals from obtaining the
banned assault weapons and large-capacity magazines from other
states. 13
For its part, the State contends that there is a reasonable
fit between the FSA and Maryland’s interest in public safety.
The State emphasizes the military-style features of the banned
13
The plaintiffs also assert that the purported failure of
the 1994 federal assault weapons ban demonstrates that the FSA
cannot advance Maryland’s interest in public safety. As
previously explained, see supra note 8, the premise of the
plaintiffs’ assertion — that the federal ban was wholly
ineffective — is not supported by the record. Moreover, the
plaintiffs ignore differences between the federal ban and the
FSA that strengthen the potential efficacy of the FSA’s
prohibitions.
55
assault weapons and large-capacity magazines that render them
particularly attractive to mass shooters and other criminals,
including those targeting police. The same military-style
features pose heightened risks to innocent civilians and law
enforcement officers — certainly because of the capability to
penetrate building materials and soft body armor, but also
because of an amalgam of other capabilities that allow a shooter
to cause mass devastation in a very short amount of time.
Upholding the prohibitions against assault weapons and
large-capacity magazines in New York and Connecticut, the Second
Circuit summarized that,
[a]t least since the enactment of the federal assault-
weapons ban, semiautomatic assault weapons have been
understood to pose unusual risks. When used, these
weapons tend to result in more numerous wounds, more
serious wounds, and more victims. These weapons are
disproportionately used in crime, and particularly in
criminal mass shootings like the attack in Newtown.
They are also disproportionately used to kill law
enforcement officers.
See N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 262
(footnotes omitted); see alsoid. at 263
(“The record evidence suggests
that large-capacity magazines may present even greater dangers
to crime and violence than assault weapons alone, in part
because they are more prevalent and can be and are used in both
assault weapons and non-assault weapons.” (footnote, alteration,
and internal quotation marks omitted)).
56
Although the plaintiffs fault the FSA for not targeting the
firearms most used in crime and for not thereby promising to
reduce gun crimes in Maryland overall, that is not the FSA’s
purpose. Rather, as the State has described it, the primary
goal of the FSA “is to reduce the availability of assault long
guns and large-capacity magazines so that when a criminal acts,
he does so with a less dangerous weapon and less severe
consequences.” See Br. of Appellees 42. Another objective is
to prevent the unintentional misuse of assault weapons and
large-capacity magazines by otherwise law-abiding citizens.
Maryland relied on evidence that, by reducing the availability
of such weapons and magazines overall, the FSA will curtail
their availability to criminals and lessen their use in mass
shootings, other crimes, and firearms accidents.
The judgment made by the General Assembly of Maryland in
enacting the FSA is precisely the type of judgment that
legislatures are allowed to make without second-guessing by a
court. That is, “[i]t is the legislature’s job, not ours, to
weigh conflicting evidence and make policy judgments.” See
Woollard, 712 F.3d at 881
(quoting Kachalsky v. Cty. of Westchester,701 F.3d 81, 99
(2d Cir. 2012)). And, “we must ‘accord substantial deference to the predictive judgments of [the legislature].’” See Satellite Broad. & Commc’ns Ass’n v. FCC,275 F.3d 337, 356
(4th Cir. 2001) (quoting Turner Broad.
57
Sys., Inc. v. FCC, 512 U.S. 622, 666
(1994) (“Turner I”)). Our obligation is simply “to assure that, in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence.” See Turner I,512 U.S. at 666
; accord Turner Broad. Sys., Inc. v. FCC,520 U.S. 180, 195
(1997)
(“Turner II”). 14
Being satisfied that there is substantial evidence
indicating that the FSA’s prohibitions against assault weapons
and large-capacity magazines will advance Maryland’s goals, we
conclude that the FSA survives intermediate scrutiny. Simply
put, the State has shown all that is required: a reasonable, if
not perfect, fit between the FSA and Maryland’s interest in
protecting public safety. That is our alternative basis for
affirming the district court’s award of summary judgment in
favor of the State with respect to the plaintiffs’ Second
Amendment claims.
14The plaintiffs contend that, under Turner I, Turner II,
and subsequent decisions of the courts of appeals, the evidence
on which the General Assembly of Maryland relied at the time of
the FSA’s enactment cannot be deemed “substantial” because the
legislative record was too sparse and the State only later
amassed evidence for this litigation. We disagree on the
grounds that there was ample evidence in the legislative record,
and that, in any event, it was appropriate for the State to
supplement that evidence in these proceedings. See, e.g.,
Satellite Broad. & Commc’ns Ass’n, 275 F.3d at 357
(“We may
. . . look to evidence outside the legislative record in order
to confirm the reasonableness of [the legislature’s]
predictions.”).
58
D.
We are confident that our approach here is entirely
faithful to the Heller decision and appropriately protective of
the core Second Amendment right. In contrast, our dissenting
colleagues would expand that constitutional protection to even
exceptionally lethal weapons of war and then decree that strict
scrutiny is applicable to any prohibition against the possession
of those or other protected weapons in the home. At bottom, the
dissent concludes that the so-called popularity of the banned
assault weapons — which were owned by less than 1% of Americans
as recently as 2013 — inhibits any efforts by the other 99% to
stop those weapons from being used again and again to perpetrate
mass slaughters. We simply cannot agree.
1.
To start with, the dissent would extend Second Amendment
protection to each and every weapon deemed sufficiently popular
— no matter how violent or dangerous that weapon is. See post
at 89-107 (Traxler, J., dissenting). Therefore, it is somehow
of immense significance to the dissent that, “in 2012, the
number of AR- and AK- style weapons manufactured and imported
into the United States was more than double the number of the
most commonly sold vehicle in the U.S., the Ford F-150.” Id. at
92 (internal quotation marks omitted). And, it is entirely an
irrelevance if “some court concludes [an AR-15 or other banned
59
weapon] has militarily useful features or is too dangerous for
civilians to possess.” Id. at 102.
Under the dissent’s popularity test, whether an arm is
constitutionally protected depends not on the extent of its
dangerousness, but on how widely it is circulated to law-abiding
citizens by the time a bar on its private possession has been
enacted and challenged. Consider, for example, short-barreled
shotguns and machineguns. But for the statutes that have long
circumscribed their possession, they too could be sufficiently
popular to find safe haven in the Second Amendment. Consider
further a state-of-the-art and extraordinarily lethal new
weapon. That new weapon would need only be flooded on the
market prior to any governmental prohibition in order to ensure
it constitutional protection.
As the dissent points out, the same concerns about the
popularity test were raised by Justice Breyer in his four-
justice Heller dissent. See post at 91 (citing Heller, 554 U.S. at 720-21
(Breyer, J., dissenting)). In our dissenting colleagues’ view, “the Heller majority was obviously unmoved by [Justice Breyer’s dissent],” thus indicating that Heller adopted the popularity test.Id.
Actually, however, Justice Breyer
simply expressed that it was not “at all clear to [him] how the
majority decides which loaded ‘arms’ a homeowner may keep,” and
then he explained why popularity is not a standard that makes
60
sense. See Heller, 554 U.S. at 720-21
(Breyer, J.,
dissenting). 15
Meanwhile, the Heller majority said nothing to confirm that
it was sponsoring the popularity test. Nevertheless, our
dissenting colleagues also claim support for the popularity test
from the recent two-justice concurring opinion in Caetano, which
propounded that, under Heller, “the relative dangerousness of a
weapon is irrelevant when the weapon belongs to a class of arms
commonly used for lawful purposes.” See Caetano, 136 S. Ct. at 1031
(Alito, J., concurring in the judgment). Of course, that
reading of Heller failed to garner a Court majority in Caetano.
We reject the interpretation of Heller embraced by our
dissenting colleagues because it is incompatible with Heller’s
clear and dispositive pronouncement: There is no Second
Amendment protection for “M-16 rifles and the like,” i.e.,
“weapons that are most useful in military service.” See 554
15 Justice Breyer’s dissent explained that, under the
popularity test, “the majority determines what regulations are
permissible by looking to see what existing regulations permit,”
although “[t]here is no basis for believing that the Framers
intended such circular reasoning.” See Heller, 554 U.S. at 721
(Breyer, J., dissenting). The popularity test also has been characterized as “circular” by the Seventh Circuit, which concluded that “it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.” See Friedman,784 F.3d at 409
.
61
U.S. at 627. It would be incongruous to say that Heller makes
an exception for such weapons if they are sufficiently popular.
That is, although we do not endeavor today to resolve the
difficult questions raised by Heller concerning the interplay of
“in common use at the time,” “typically possessed by law-abiding
citizens for lawful purposes,” and “dangerous and unusual,” see
id. at 625, 627, we are entirely convinced that the correct
answers to such inquiries cannot and do not culminate in the
dissent’s popularity test. 16
In seeking to impugn our ruling on Second Amendment
protection, the dissent accuses the en banc majority of a
laundry list of misfeasance. That list includes improperly
conjuring up “a heretofore unknown ‘test’” of “whether the
firearm in question is ‘most useful in military service’”;
flouting “basic fairness” by neither affording an opportunity to
the parties (particularly the plaintiffs) “to squarely meet the
16
We must also reject the dissent’s theory that, consistent
with the popularity test, the Heller Court could categorically
exclude “weapons that are most useful in military service” from
Second Amendment protection, because no such weapon is typically
possessed by law-abiding citizens today. See post at 98-99.
The dissent specifically identifies “Gatling guns, mortars,
bazookas, etc.” and asserts that “no one could claim these items
were ever commonly possessed for Second Amendment purposes.”
Id. at 99. But the dissent’s list of militarily useful weapons
makes a critical omission: the very assault weapons and large-
capacity magazines that the dissent insists satisfy the
popularity test.
62
issue” nor remanding for the district court to address the issue
in the first instance; employing our own “military opinion” to
conclude that the assault weapons and large-capacity magazines
prohibited by Maryland’s FSA are not constitutionally protected;
and “abandon[ing] the summary judgment standard and reach[ing] a
conclusion based on facts viewed in the light most favorable to
the State.” See post at 96-97 & nn.4-5.
With all respect, those accusations are entirely unfounded.
Although our ruling on Second Amendment protection may seem
novel in some quarters, it is solidly predicated on the plain
language of Heller and was raised and argued by the State in
both the district court proceedings and this appeal. See supra
note 10. Specifically, the State has consistently asserted that
— because the banned assault weapons and large-capacity
magazines are “like” “M-16 rifles” and “most useful in military
service” — they are “dangerous and unusual weapons” beyond the
reach of the Second Amendment. See Heller, 554 U.S. at 627
; see also Br. of Appellees at 2-4, 16-23; Defs.’ Mem. in Supp. of Summ. J. at 3-10, 32-37, Kolbe v. O’Malley, No. 1:13-cv-02841 (D. Md. Feb. 14, 2014), ECF No. 44. That very argument was acknowledged and discussed both in the district court’s Opinion and in the dissent to our panel majority’s now-vacated Second Amendment decision. See Kolbe v. Hogan,813 F.3d 160, 194, 196
(4th Cir. 2016) (King, J., dissenting in part and concurring in
63
the judgment in part) (expressing a strong inclination to
“proclaim that the Second Amendment is not implicated by the
FSA,” in that there is no “reasonable basis for saying that,
although the M16 is a dangerous and unusual weapon, the AR-15
and similar arms are not”); id.
at 195 n.2 (recognizing that large-capacity magazines also “could be deemed dangerous and unusual, in view of evidence that, inter alia, they are particularly designed and most suitable for military and law enforcement applications” (internal quotation marks omitted)); Kolbe,42 F. Supp. 3d at 789
n.29 (observing that, “[g]iven that assault rifles like the AR-15 are essentially the functional equivalent of M-16s — and arguably more effective — the [reasoning of Heller that M-16s could be banned as dangerous and unusual] would seem to apply here” (citing Heller,554 U.S. at 627
)).
In our analysis, we simply de-emphasize the term “dangerous
and unusual,” more directly concluding under Heller that,
because the banned assault weapons and large-capacity magazines
are “like” “M-16 rifles” and “most useful in military service,”
they are beyond the reach of the Second Amendment.
Consequently, the problem for the plaintiffs is not that they
have been deprived of an ample opportunity to squarely meet the
issue of whether the banned assault weapons and large-capacity
magazines are most useful in military service. Instead, the
64
plaintiffs’ problem is that, despite full notice of the issue,
they have not and apparently cannot forecast evidence adequately
helpful to their cause. Meanwhile, the State’s evidence readily
establishes that the banned assault weapons and large-capacity
magazines are most useful in military service, causing us to
neither employ our own “military opinion” nor abandon the
summary judgment standard to rule as we do.
Our distinguished dissenting colleagues just as
ineffectively attack the merits of our ruling on Second
Amendment protection, chiefly complaining that we do not adopt
the dissent’s illogical popularity test. Elsewhere, the dissent
strategically removes the word “most” from Heller’s enunciation
of the “most useful in military service” inquiry. The dissent
thereby incorrectly insists that we are foreclosing Second
Amendment protection for weapons that may have some use in
military service, including the stun guns at issue in Caetano
and even the handguns at issue in Heller. The dissent goes so
far as to claim that we “would remove nearly all firearms from
Second Amendment protection as nearly all firearms can be useful
in military service.” See post at 100. At another point, the
dissent acknowledges the critical distinction that the Heller
Court drew between military weapons at the time of Second
Amendment’s ratification (arms entitled to constitutional
protection because they were otherwise possessed at home by
65
citizen militia members for self-defense) and the military
weapons of today (sophisticated arms like the M16 that were
developed for modern warfare and thus lack constitutional
protection). But the dissent inconsistently reckons that we
have placed a settler’s musket outside the ambit of the Second
Amendment.
Taking a last shot at our ruling on Second Amendment
protection, the dissent endeavors to make the case for the
plaintiffs that the FSA-banned assault weapons and large-
capacity magazines are not, in fact, most useful in military
service. In so doing, the dissent simply resorts to further
obfuscation. For example, the dissent underscores that the AR-
15 and other prohibited semiautomatic rifles are not themselves
“in regular use by any military force, including the United
States Army, whose standard-issue weapon has been the fully
automatic M16- and M4-series rifles.” See post at 102; see also
id. at 106 (“If these firearms were such devastating weapons of
war, one would think that they would be standard issue for
military forces across the globe.”). The dissent characterizes
the relevant inquiry as being whether a weapon’s “only
legitimate purpose is to lay waste to a battlefield full of
combatants,” id. at 102-03 (emphasis added), and then invokes
evidence that there are citizens who possess and use the banned
assault weapons for sporting purposes and self-defense, id. at
66
106-07. The dissent also treats rate of fire as the sole
determinative factor and proffers its own evidence that an M16
in semiautomatic mode cannot fire as rapidly — at least not
“effectively” — as the State’s evidence reflects. Id. at 103-
04; see also id. at 105 n.6 (noting that fully automatic and
semiautomatic firearms do not “spray-fire” in precisely the same
manner). Additionally, the dissent parses other individual
features of the banned assault weapons, pointing out that some
features are shared by non-banned firearms, do not on their own
make weapons “more lethal or battle-ready,” and can actually
render firearms “easier and safer to operate.” Id. at 104-06.
The dissent even emphasizes evidence opining that “[t]he semi-
automatic AR15 carbine is likely the most ergonomic, safe,
readily available and effective firearm for civilian self-
defense.” Id. at 107 (alteration in original) (internal
quotation marks omitted).
As the dissent would have it, we groundlessly deem the
banned assault weapons to be military-style weapons of war when
they are actually nothing of the sort, thereby welcoming
prohibitions against a multitude of other firearms. On that
score, however, the dissent is patently alarmist and wrong.
Our ruling on Second Amendment protection is limited and
clear: Because the FSA-banned assault weapons and large-
capacity magazines are like M16s, in that they are most useful
67
in military service, they are not protected by the Second
Amendment. The relevant question is not whether they are
themselves M16s or other arms used by a military; or whether
they are useful at all or only useful in military service; or
whether they have this or that single feature in common with a
non-banned firearm. Rather, the issue is whether the banned
assault weapons and large-capacity magazines possess an amalgam
of features that render those weapons and magazines like M16s
and most useful in military service. The uncontroverted
evidence here is that they do. See, e.g., J.A. 735, 1121-22
(reflecting that the banned assault weapons are designed to
“kill[] or disabl[e] the enemy” on the battlefield, and that
“[t]he net effect of [their] military combat features is a
capability for lethality — more wounds, more serious, in more
victims — far beyond that of other firearms in general,
including other semiautomatic guns”); id. at 891, 1151
(indicating that large-capacity magazines “are particularly
designed and most suitable for military and law enforcement
applications,” as well as a “uniquely military feature[]” of
both the banned assault weapons and other firearms to which they
may be attached). Nothing in our decision today affects or
calls into question the Second Amendment protection of weapons
that are not most useful in military service — including, of
course, Heller’s handguns.
68
2.
Finally, unlike us, our esteemed dissenting colleagues
would subject the FSA’s prohibitions against assault weapons and
large-capacity magazines to the ultra-demanding strict scrutiny
standard. See post at 107-15. Indeed, the dissent would apply
strict scrutiny to any ban on in-home possession of any weapon
that satisfies the dissent’s popularity test. Meanwhile, we
conclude that no more than intermediate scrutiny applies here,
in part because the FSA leaves citizens free to protect
themselves with handguns and plenty of other firearms and
ammunition, and thus does not severely burden the core Second
Amendment right to use arms for self-defense in the home. We
also take notice of the scant evidence in the record that the
banned assault weapons and large-capacity magazines are
possessed or suitable for self-protection.
The dissent has no good answer to our analysis. First, the
dissent mischaracterizes our Court’s recent decision in United
States v. Hosford, 843 F.3d 161
(4th Cir. 2016), as holding
“that strict scrutiny applies when a law restricting possession
of a firearm applies to conduct inside of the home and touches
on self-defense concerns.” See post at 110. The Hosford panel
consisted of three judges in today’s en banc majority. What
Hosford actually decided is that strict scrutiny does not apply
where — as there — a “prohibition does not touch on the Second
69
Amendment’s core protections,” e.g., where the law “addresses
only conduct occurring outside the home[] and does not touch on
self-defense concerns.” See 843 F.3d at 168
. We did not
determine in Hosford whether strict scrutiny always or ever
applies to laws infringing on the Second Amendment right of
self-defense in the home, and we had no reason to do so. In
these circumstances, the Hosford decision is not pertinent, and
the dissent is simply wrong in arguing otherwise.
The dissent also asserts that our “line of thought was
expressly rejected by the Supreme Court in Heller” when it
“dismissed the District of Columbia’s reverse contention that
its handgun ban [was constitutional] because long guns were
still permitted for home defense.” See post at 111 (emphasis
omitted) (citing Heller, 554 U.S. at 629
). The dissent’s equation of this case and Heller is wholly untenable, however, because it depends on discounting the relevance of the handgun’s status as “the quintessential self-defense weapon” — a status that was obviously and unquestionably important to the Heller Court. See Heller,554 U.S. at 628-29
. Nevertheless, the dissent next insists that, in rejecting its reading of Heller, we allow that “any state ‘would be free to ban all weapons except handguns, because handguns are the most popular weapon chosen by Americans for self-defense in the home.’” See post at 112 (emphasis omitted) (quoting Caetano,136 S. Ct. at 1032
70
(Alito, J., concurring in the judgment)). In reality, without
passing on the comparative burdensomeness of bans on any other
types of arms, we merely say that a prohibition against assault
weapons and large-capacity magazines is far less burdensome on
the core Second Amendment right than a ban on handguns.
According to the dissent, we thereby improperly discount
evidence of the utility of assault weapons and large-capacity
magazines for self-defense, but that assertion relies on the
same and similar points that fail to make the case for the
plaintiffs that such weapons and magazines are not, in fact,
most useful in military service. See id.
at 112-14 & n.9.
Ultimately, the dissent would leave it to individual
citizens — and disempower legislators — to determine whether a
weapon may be possessed for self-defense. See post at 114 (“As
long as the weapon chosen is one commonly possessed by the
American people for lawful purposes[,] . . . the state has very
little say about whether its citizens should keep it in their
homes for protection.”). That is, under the dissent, any ban on
the in-home possession of a sufficiently popular weapon would
have to withstand strict scrutiny to be allowed to stand. The
Heller Court did not, however, ordain such a trampling of the
legislative prerogative to enact firearms regulations to protect
all the people. Rather, as it is here, intermediate scrutiny
can be the appropriate standard for assessing the
71
constitutionality of a prohibition against the possession of a
weapon in the home. And the FSA survives intermediate scrutiny,
assuming the assault weapons and large-capacity magazines that
it prohibits are even entitled to Second Amendment protection.
IV.
We next address the plaintiffs’ Fourteenth Amendment
claims, which are pursued under the Equal Protection Clause
(barring a state from “deny[ing] to any person within its
jurisdiction the equal protection of the laws”), as well as the
Due Process Clause (prohibiting a state from “depriv[ing] any
person of life, liberty, or property, without due process of
law”). See U.S. Const. amend. XIV, § 1. We are satisfied to
affirm the district court’s award of summary judgment to the
State with respect to those claims.
A.
The first of the plaintiffs’ Fourteenth Amendment claims is
that the FSA contravenes the Equal Protection Clause by allowing
retired Maryland law enforcement officers to receive and possess
assault weapons and large-capacity magazines. As previously
explained, the relevant provision of the FSA allows the receipt
and possession of an assault weapon or large-capacity magazine
by a retired Maryland law enforcement officer if such weapon or
magazine “is sold or transferred to the person by the law
72
enforcement agency on retirement” or “was purchased or obtained
by the person for official use with the law enforcement agency
before retirement.” See Md. Code Ann., Crim. Law § 4-302
(7).
The Supreme Court has recognized that equal protection “is
essentially a direction that all persons similarly situated
should be treated alike.” See City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439
(1985). Thus, a plaintiff challenging a state statute on an equal protection basis “must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” See Morrison v. Garraghty,239 F.3d 648, 654
(4th Cir. 2001) (citing City of Cleburne,473 U.S. at 439-40
). If that initial showing has been made, “the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.”Id.
At that step, a court generally presumes that the statute is valid and will reject the challenge “if the classification drawn by the statute is rationally related to a legitimate state interest.” See City of Cleburne,473 U.S. at 440
. 17
17 In certain circumstances, the general presumption of
statutory validity “gives way” and stricter judicial scrutiny of
a challenged law is warranted. See City of Cleburne, 473 U.S. at 440-41
(observing that higher levels of scrutiny apply to
suspect classifications). There is no contention that a
(Continued)
73
Applying the foregoing principles, we first assess whether
the FSA treats similarly situated persons differently. See
Morrison, 239 F.3d at 654
. More specifically, we examine
whether retired Maryland law enforcement officers are similarly
situated to other members of the public with respect to the
banned assault weapons and large-capacity magazines.
Maryland requires its law enforcement officers to maintain
competence relating to firearms. For example, such officers are
not entitled to use or carry firearms in their work until they
have “successfully complete[d] the applicable firearms classroom
instruction, training, and qualification.” See Code of Maryland
Regulations (“COMAR”) 12.04.02.03(A); see also COMAR
12.04.02.06(B) (establishing minimum requirements for long gun
instruction, training, and qualification). Thereafter, officers
are obliged to complete annual classroom instruction and
training for each firearm they are authorized to use or carry.
See COMAR 12.04.02.08(A). The failure of an officer to complete
his annual training will cause the seizure of his firearms by
the Maryland Police Training Commission, or, if those firearms
are personally owned by the officer, the loss of his
authorization to use them on the job. See COMAR 12.04.02.08(E).
heightened level of scrutiny applies to the equal protection
challenge in this case.
74
Finally, officers are trained on the use of deadly force, plus
the safe handling and storage of firearms at work and at home.
See COMAR 12.04.02.10(C)–(D).
The record shows that Maryland law enforcement officers are
also required to complete specialized training in order to use
or carry assault weapons. Officers are trained on how and when
to utilize assault weapons, and they are taught the techniques
that minimize the risks of harm to innocent civilians. After
receiving assault weapons training, officers are required to
periodically requalify to use or carry such weapons in the line
of duty.
As for large-capacity magazines, Maryland law enforcement
officers are taught to assess every shot from a firearm for
effectiveness and to fully evaluate a hostile situation before
firing multiple rounds. The record shows that, at least within
four major police agencies — the Maryland State Police, the
Baltimore County Police Department, the Baltimore Police
Department, and the Prince George’s County Police Department —
the standard service weapons issued to law enforcement personnel
come with large-capacity magazines. Consequently, officers who
retire from those departments have been properly trained on the
handling and use of such magazines.
Because of the extensive training that Maryland requires of
its law enforcement officers, and in light of their experience
75
in public safety, retired Maryland law enforcement officers are
not similarly situated to the general public with respect to the
assault weapons and large-capacity magazines banned by the FSA.
That is, retired officers are better equipped to safely handle
and store those weapons and magazines and to prevent them from
falling into the wrong hands. Accordingly, we reject the
plaintiffs’ equal protection challenge for lack of an initial
showing that the FSA treats similarly situated persons
differently. See Kolbe v. O’Malley, 42 F. Supp. 3d 768, 799
(D.
Md. 2014) (“The court cannot conclude that the State of Maryland
is treating differently persons who are in all relevant respects
alike, and the plaintiffs’ equal protection challenge must
fail.”). 18
18 In pursuing their equal protection challenge, the
plaintiffs rely primarily on Silveira v. Lockyer, wherein the
Ninth Circuit concluded that a retired officer exception to an
assault weapons ban contravened the Equal Protection Clause.
See 312 F.3d 1052, 1089-92
(9th Cir. 2002). We agree with the district court, however, that the Silveira decision “is flawed,” as it did not analyze whether there was differential treatment of similarly situated persons. See Kolbe,42 F. Supp. 3d at 798
n.39. Otherwise, the plaintiffs insist that Maryland’s retired
law enforcement officers are similarly situated to the general
public, in that some individual officers might not have been
properly trained on assault weapons or large-capacity magazines.
That contention lacks merit because we must look at retired
officers as a broader class.
76
B.
The plaintiffs’ second Fourteenth Amendment claim is that
the FSA’s ban on “copies” of the assault weapons identified in
section 5-101(r)(2) of the Maryland Code’s Public Safety Article
is unconstitutionally vague on its face, in contravention of the
Due Process Clause. In particular, they maintain that the
statute fails to inform a reasonable person of what constitutes
a “cop[y]” of a particular assault weapon. See Md. Code Ann.,
Pub. Safety § 5–101(r)(2) (defining a “[r]egulated firearm” as
“a firearm that is any of the following specific assault weapons
or their copies, regardless of which company produced and
manufactured that assault weapon”).
As the Supreme Court recently explained, the void-for-
vagueness doctrine precludes the enforcement of a criminal
statute “so vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.” See Johnson v. United States,
135 S. Ct. 2551, 2556
(2015). 19 A criminal statute need not,
19 The Supreme Court’s Johnson decision — which was
rendered in June 2015, nearly a year after the district court’s
Opinion here — precludes the State’s contention that we should
uphold the FSA’s ban on “copies” under United States v. Salerno,
481 U.S. 739, 745
(1987) (observing that “[a] facial challenge
to a legislative Act” requires “the challenger [to] establish
that no set of circumstances exists under which the Act would be
valid”). In Johnson, the Court rejected the notion that “a
vague provision is constitutional merely because there is some
(Continued)
77
however, “spell out every possible factual scenario with
celestial precision.” See United States v. Hager, 721 F.3d 167, 183
(4th Cir. 2013) (internal quotation marks omitted).
The term “copies,” as used in section 5–101(r)(2), is not
new to Maryland’s firearms statutes. Indeed, Maryland has
regulated the “possession, sale, offer for sale, transfer,
purchase, receipt, or transport” of certain assault weapons and
“their copies” for more than two decades. See 1994 Md. Laws,
ch. 456. In May 2010, Maryland’s Attorney General rendered an
opinion explaining the term “copies” as used in section 5-
101(r)(2). He therein observed that the ordinary meaning of the
word copy is “a reproduction or imitation of an original.” See
J.A. 681. The Attorney General explained that, under Maryland
law, “a copy of a designated assault weapon must be similar in
its internal components and function to the designated weapon.”
Id. at 678. Thus, “[c]osmetic similarity to an enumerated
assault weapon alone would not bring a weapon within the
regulated firearms law.” Id. Six months later, in November
2010, the Maryland State Police issued a bulletin explaining
that it considers a firearm that is cosmetically similar to an
assault weapon identified in section 5–101(r)(2) to be a copy
conduct that clearly falls within the provision’s grasp.” See
135 S. Ct. at 2561
.
78
only if it possesses “completely interchangeable internal
components necessary for the full operation and function of any
one of the specifically enumerated assault weapons.” Id. at
676. The Attorney General’s opinion, coupled with the State
Police bulletin, provide guidance on the term “copies,” and that
guidance remained in force after the FSA was enacted in 2013.
The Court of Appeals of Maryland has recognized that
“legislative acquiescence in the administrative construction [of
a statute] gives rise to a strong presumption that the
administrative interpretation is correct.” See Wash. Suburban
Sanitary Comm’n v. C.I. Mitchell & Best Co., 495 A.2d 30, 37
(Md. 1985). Because the Attorney General’s 2010 opinion and the subsequent bulletin of the State Police explain how to determine whether a particular firearm is a copy of an identified assault weapon, we cannot conclude that the term “copies” in section 5– 101(r)(2) is unconstitutionally vague. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,455 U.S. 489, 504
(1982) (explaining that a municipality may “adopt administrative
regulations that will sufficiently narrow potentially vague or
arbitrary interpretations of [an] ordinance”).
In further support of their vagueness claim, the plaintiffs
argue that the typical gun owner would not know whether the
internal components of one firearm are interchangeable with the
internal components of some other firearm. That contention
79
misapprehends the vagueness inquiry, which focuses on the
intractability of identifying the applicable legal standard, not
on the difficulty of ascertaining the relevant facts in close
cases. See United States v. Williams, 553 U.S. 285, 306
(2008) (“What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.”); see also Johnson,135 S. Ct. at 2560
(emphasizing, in ruling that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, the “pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider”). The legal standard for determining what qualifies as a copy of an identified assault weapon is sufficiently clear, and we thus reject the plaintiffs’ contention that the FSA’s ban on copies of assault weapons is unconstitutionally vague. See Kolbe,42 F. Supp. 3d at 802
(“[T]he court cannot conclude that the [FSA] fails to
provide sufficient notice of banned conduct.”). 20
20
In the summary judgment proceedings below, the plaintiffs
also unsuccessfully sought to show that the FSA invites
arbitrary enforcement. As the district court recognized in
disposing of that contention, “[w]hen the terms of a regulation
are clear and not subject to attack for vagueness, the plaintiff
bears a high burden to show that the standards used by officials
enforcing the statute nevertheless give rise to a vagueness
(Continued)
80
V.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
challenge.” See Kolbe, 42 F. Supp. 3d at 802
(quoting Wag More Dogs, L.L.C. v. Cozart,680 F.3d 359, 372
(4th Cir. 2012)). The
court concluded that the plaintiffs failed to sustain that
substantial burden, in that they have not identified any arrests
or convictions resulting from a misunderstanding of the term
“copies,” as used in section 5–101(r)(2), nor have they
identified any acquittals based on the alleged vagueness of that
term. The plaintiffs did not endeavor on appeal to demonstrate
that there has been arbitrary enforcement of the “copies”
provision.
81
WILKINSON, Circuit Judge, with whom WYNN, Circuit Judge, joins,
concurring:
I am happy to concur in Judge King’s fine opinion in this
case.
No one really knows what the right answer is with respect
to the regulation of firearms. It may be that relatively
unrestricted access to guns will diminish the incidence of crime
by providing a deterrent force against it. On the other hand, it
may be that such access leads only to a proliferation of
incidents in which the most deadly firearms are unleashed
against the public.
The question before us, however, is not what the right
answer is, but how we may best find it. The dissent aspires to
subject a host of firearm regulations to “strict scrutiny,” a
term of art deployed here to empower the judiciary and leave
Congress, the Executive, state legislatures, and everyone else
on the sidelines. I am unable to draw from the profound
ambiguities of the Second Amendment an invitation to courts to
preempt this most volatile of political subjects and arrogate to
themselves decisions that have been historically assigned to
other, more democratic, actors. The fact that Heller exempted
from legislative infringement handguns broadly utilized for
self-defense in the home does not mean that it disabled
legislatures from addressing the wholly separate subject of
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assault weapons suitable for use by military forces around the
globe. See District of Columbia v. Heller, 544 U.S. 570
, 626-28
(2008).
Disenfranchising the American people on this life and death
subject would be the gravest and most serious of steps. It is
their community, not ours. It is their safety, not ours. It is
their lives, not ours. To say in the wake of so many mass
shootings in so many localities across this country that the
people themselves are now to be rendered newly powerless, that
all they can do is stand by and watch as federal courts design
their destiny – this would deliver a body blow to democracy as
we have known it since the very founding of this nation.
In urging us to strike this legislation, appellants would
impair the ability of government to act prophylactically. More
and more under appellants’ view, preventive statutory action is
to be judicially forbidden and we must bide our time until
another tragedy is inflicted or irretrievable human damage has
once more been done. Leaving the question of assault weapons
bans to legislative competence preserves the latitude that
representative governments enjoy in responding to changes in
facts on the ground. Constitutionalizing this critical issue
will place it in a freeze frame which only the Supreme Court
itself could alter. The choice is ultimately one of flexibility
versus rigidity, and beyond that, of whether conduct that has
83
visited such communal bereavement across America will be left to
the communal processes of democracy for resolution.
Providing for the safety of citizens within their borders
has long been state government’s most basic task. See, e.g.,
Boston Beer Co. v. Massachusetts, 97 U.S. 25, 32
(1877). In establishing the “right of law-abiding, responsible citizens to use arms in defense of hearth and home,” Heller did not abrogate that core responsibility.554 U.S. at 635
. Indeed, Heller stopped far short of the kind of absolute protection of assault weapons that appellants urge on us today. The dissent, by contrast, envisions the Second Amendment almost as an embodiment of unconditional liberty, thereby vaulting it to an unqualified status that the even more emphatic expressions in the First Amendment have not traditionally enjoyed. As Judge King has aptly noted, Heller was a cautiously written opinion, which reserved specific subjects upon which legislatures could still act. Seeid. at 626
(recognizing that the Second Amendment right
is “not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose”). Had Heller in fact
failed to reserve those subjects, or had it been written more
ambitiously, it is not clear that it could have garnered the
critical five votes.
The weapons that Maryland sought to regulate here are
emphatically not defensive in nature. Of course, no weapon is
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what we learned long ago in real property class to call a
fixture. Weapons may remain at home for a while but their
station is not permanent. They can always be taken out on the
town. For what purpose? The Maryland legislature could readily
conclude that assault weapons, unlike handguns, are efficient
instruments of mass carnage, and in fact would serve as weapons
of choice for those who in a commando spirit wish to charge into
a public venue and open fire. Likewise, the legislature could
validly determine that large detachable magazines with a
capacity of more than ten rounds of ammunition in fact
facilitate assaults by those who seek to eliminate the need to
reload.
If this statute is struck down, it is difficult to see what
class of non-automatic firearms could ever be regulated. If
these weapons are outside the legislative compass, then
virtually all weapons will be. It is altogether fair, of course,
to argue that the assault weapons here should be less regulated,
but that is for the people of Maryland (and the Virginias and
the Carolinas) to decide.
Appellants claim, however, that these assault weapons
cannot be banned because they are “in common use” and are
“typically possessed by law-abiding citizens for lawful
purposes.” Appellants’ Supp. Br. 20-23. This language was of
course employed in Heller, 554 U.S. at 624-28
, but it did not
85
purport to make any inquiry into common usage and typical
possession the exclusive province of the courts. The dissent’s
forays into the properties and usages of this or that firearm
are the kind of empirical inquiries routinely reserved for
legislative bodies which possess fact-finding capabilities far
superior to the scantily supported views now regularly proffered
from the bench. In fact, legislators are uniquely suited to
discern popular habits and to understand regular usage within
the populace. The term “common use” was never meant to deal to
courts the sole and supreme hand in a political controversy
where the combatants on both sides are robust, where they are
energized, and where they are well stocked with arguments they
can press before the public.
As Heller recognized, there is a balance to be struck here.
While courts exist to protect individual rights, we are not the
instruments of anyone’s political agenda, we are not empowered
to court mass consequences we cannot predict, and we are not
impaneled to add indefinitely to the growing list of subjects on
which the states of our Union and the citizens of our country no
longer have any meaningful say.
With all respect for my good colleagues who see this
important matter differently, I would uphold the Maryland law in
its entirety.
86
DIAZ, Circuit Judge, concurring in part:
I am pleased to join the majority in affirming the district
court’s judgment. But like the district court, I think it
unnecessary to decide whether the assault weapons and large-
capacity magazines at issue here are protected by the Second
Amendment. Rather, I am content to decide this case solely on
the majority’s alternative (and compelling) rationale--that even
if Maryland’s statute implicates the Second Amendment, it
nonetheless passes constitutional muster.
87
TRAXLER, Circuit Judge, with whom NIEMEYER, SHEDD, and AGEE,
Circuit Judges, join, dissenting:
Today the majority holds that the Government can take
semiautomatic rifles away from law-abiding American citizens.
In South Carolina, North Carolina, Virginia, West Virginia and
Maryland, the Government can now tell you that you cannot hunt
with these rifles. The Government can tell you that you cannot
shoot at targets with them. And, most importantly, the
Government can tell you that you cannot use them to defend
yourself and your family in your home. In concluding that the
Second Amendment does not even apply, the majority has gone to
greater lengths than any other court to eviscerate the
constitutionally guaranteed right to keep and bear arms.
In addition, the majority holds that even if it is wrong
when it says that the Second Amendment does not cover these
commonplace rifles, Maryland can still lawfully forbid their
purchase, even for self defense in one’s home-the core Second
Amendment right. My friends do not believe this ruling impairs
the rights citizens have under the Constitution to any
significant degree. In my view, the burden imposed by the
Maryland law is considerable and requires the application of
strict scrutiny, as is customary when core values guaranteed by
the Constitution are substantially affected. I recognize that
after such a judicial review, the result could be that the
88
Maryland law is constitutional. I make no predictions on that
issue. I simply say that we are obligated by Supreme Court
precedent and our own to treat incursions into our Second
Amendment rights the same as we would restrictions on any other
right guaranteed us by our Constitution.
Therefore I respectfully dissent.
I. The Second Amendment Protects Semiautomatic
Rifles and Large Capacity Magazines
A. Semiautomatic rifles are commonly possessed
by law-abiding citizens.
The majority says first that the Second Amendment does not
even apply to modern semiautomatic rifles or magazines holding
more than ten rounds. In doing so, the majority stands alone
from all the other courts to have considered this issue. But
the scope of the Second Amendment is broad with regard to the
kinds of arms that fall within its protection, “extend[ing],
prima facie, to all instruments that constitute bearable arms.”
District of Columbia v. Heller, 554 U.S. 570, 582
(2008). Of course, like other constitutionally protected rights, “the right secured by the Second Amendment is not unlimited.”Id. at 626
. Of particular importance here are the historical limitations that apply to the types of arms a law-abiding citizen may bear. In that regard, the Second Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.”Id. at 625
. By contrast, “the carrying of
89
‘dangerous and unusual weapons’” has been prohibited as a matter
of “historical tradition.” Id. at 627
; see Caetano v. Massachusetts,136 S. Ct. 1027, 1028
(2016) (per curiam). If a weapon is one “typically possessed by law-abiding citizens for lawful purposes,” Heller,554 U.S. at 625
, then it cannot also be a “dangerous and unusual” weapon in a constitutional sense,id. at 627
(weapons “in common use at the time” did not include “dangerous and unusual weapons” (internal quotation marks omitted)). Indeed, Heller refers to “dangerous and unusual” conjunctively, so that even a “dangerous” weapon enjoys constitutional protection if it is widely held for lawful purposes. See Caetano,136 S. Ct. at 1031
(explaining that the dangerous and unusual test “is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual”) (Alito, J., concurring). The significance of this rule is that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.”Id.
Simply put, if the firearm in question is commonly possessed for lawful purposes, it falls within the protection of the Second Amendment. See Heller,554 U.S. at 627
.
My colleagues in the majority reject the foregoing “common
use” analysis, characterizing it as a “popularity test” founded
on “circular” reasoning such that “a state-of-the-art and
extraordinarily lethal new weapon . . . would need only be
90
flooded on the market prior to any governmental prohibition in
order to ensure it constitutional protection.” But the
majority’s beef is not with me—it is with the Supreme Court of
the United States. Justice Breyer raised a quite similar
objection to this “popularity test” in his Heller dissent:
[I]f Congress and the States lift restrictions on
the possession and use of machineguns, and people buy
machineguns . . . the Court will have to reverse course
and find that the Second Amendment does, in fact,
protect the individual self-defense-related right to
possess a machinegun. On the majority's reasoning, if
tomorrow someone invents a particularly useful, highly
dangerous self-defense weapon, Congress and the States
had better ban it immediately, for once it becomes
popular Congress will no longer possess the
constitutional authority to do so. . . . There is no
basis for believing that the Framers intended such
circular reasoning.
554 U.S. at 720–21. Justice Breyer effectively raised my
colleagues’ precise criticism in his Heller dissent and the
Heller majority was obviously unmoved by it.
And, indeed, following Heller, almost every federal court
to have considered “whether a weapon is popular enough to be
considered in common use has relied on statistical data of some
form, creating a consensus that common use is an objective and
largely statistical inquiry.” Hollis v. Lynch, 827 F.3d 436, 449
(5th Cir. 2016) (internal quotation marks omitted). It is
beyond any reasonable dispute from the record before us that a
statistically significant number of American citizens possess
semiautomatic rifles (and magazines holding more than 10 rounds)
91
for lawful purposes. Between 1990 and 2012, more than 8 million
AR- and AK- platform semiautomatic rifles alone were
manufactured in or imported into the United States. In 2012,
semiautomatic sporting rifles accounted for twenty percent of
all retail firearms sales. In fact, in 2012, the number of AR-
and AK- style weapons manufactured and imported into the United
States was “more than double the number of the most commonly
sold vehicle in the U.S., the Ford F-150.” J.A. 1878. In terms
of absolute numbers, these statistics lead to the unavoidable
conclusion that popular semiautomatic rifles such as the AR-15
are commonly possessed by American citizens for lawful purposes
within the meaning of Heller.
The number of jurisdictions where possession of
semiautomatic rifles is lawful is also an appropriate
consideration in determining common use for lawful purposes.
See Caetano, 136 S. Ct. at 1032-33
(Alito, J., concurring)
(explaining that the 200,000 tasers and stun guns in the United
States are commonly possessed for lawful purposes and “widely
owned and accepted as a legitimate means of self-defense across
the country” where 45 states permit their lawful possession).
The semiautomatic rifle has been in existence since at least the
turn of the Twentieth Century. Today, more than 100 years after
these firearms came into use, individual citizens may possess
semiautomatic rifles like the AR-15 semiautomatic in at least 44
92
states, which establishes that these weapons are widely accepted
across the country as firearms that may be legitimately
possessed for lawful purposes. See Robert J. Cottrol and George
A. Mocsary, Guns, Bird Feathers, and Overcriminalization: Why
Courts Should Take the Second Amendment Seriously, 14 Geo. J. L.
& Pub. Pol’y 17, 36 (2016) (noting that “[s]even states, the
District of Columbia, and a few localities regulate or ban so-
called assault weapons”); see id.
at 36 n.106 (“The states
[banning or regulating “assault weapons”] are California,
Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, and
New York.”). 1
In view of the significant popularity of these firearms,
courts have had little difficulty in concluding that
semiautomatic rifles such as the AR-15 are in common use by law-
abiding citizens. See, e.g., Heller v. District of Columbia
(“Heller II”), 670 F.3d 1244, 1261
(D.C. Cir. 2011) (“We think
it clear enough in the record that semi-automatic rifles and
magazines holding more than ten rounds are indeed in ‘common
use,’ as the plaintiffs contend. Approximately 1.6 million AR-
15s alone have been manufactured since 1986, and in 2007 this
one popular model accounted for 5.5 percent of all firearms, and
1 Although Hawaii is listed, it bans assault pistols only;
semiautomatic rifles such as the AR-15 are still permitted in
Hawaii. See Haw. Rev. Stat. §§ 134-1
, 134-4, 134-8.
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14.4 percent of all rifles, produced in the U.S. for the
domestic market.”); New York State Rifle & Pistol Ass’n, Inc. v.
Cuomo, 804 F.3d 242, 255
(2d Cir. 2015) (“This much is clear: Americans own millions of the firearms that the challenged legislation prohibits. . . . Even accepting the most conservative estimates cited by the parties and by amici, the assault weapons and large-capacity magazines at issue are ‘in common use’ as that term was used in Heller.”); Colorado Outfitters Ass’n v. Hickenlooper,24 F. Supp. 3d 1050, 1068
(D. Colo. 2014) (concluding that statute “affects the use of firearms that are both widespread and commonly used for self- defense,” in view of the fact that “lawfully owned semiautomatic firearms using a magazine with the capacity of greater than 15 rounds number in the tens of millions”), vacated in part on other grounds,823 F.3d 537
(10th Cir. 2016).
The record also shows unequivocally that magazines with a
capacity of greater than 10 rounds are commonly kept by American
citizens, as there are more than 75 million such magazines owned
by them in the United States. These magazines are so common
that they are standard on many firearms: “[O]n a nationwide
basis most pistols are manufactured with magazines holding ten
to 17 rounds.” J.A. 2122. Even more than 20 years ago, “fully
18 percent of all firearms owned by civilians . . . were
equipped with magazines holding more than ten rounds.” Heller
94
II, 670 F.3d at 1261
; see Fyock v. City of Sunnyvale,779 F.3d 991, 998
(9th Cir. 2015) (“[W]e cannot say that the district
court abused its discretion by inferring from the evidence of
record that, at a minimum, [such] magazines are in common use.”) 2
Millions of Americans keep semiautomatic rifles and use
them for lawful, non-criminal activities, including as a means
to defend their homes. Plaintiffs Kolbe and Turner both seek to
acquire and keep semi-automatic rifles, equipped with magazines
able to hold more than 10 rounds, in their homes primarily for
self-defense – a common and legitimate purpose for possessing
these firearms. Plaintiffs’ expert James Curcuruto presented
survey evidence showing that self-defense was a primary reason
for the purchase of weapons banned under the FSA, and a 1989
Report from the Bureau of Alcohol, Tobacco, and Firearms
indicated that self-defense was a suitable purpose for
semiautomatic rifles. The State's expert Daniel Webster even
agreed that it is reasonable to assume that a purpose for
keeping one of the prohibited weapons is “self-defense in the
home.” J.A. 2291.
2 Although the majority does not reach the issue of whether
detachable magazines constitute bearable arms entitled to Second
Amendment protection, such magazines quite clearly constitute
arms for the reasons set forth in the now vacated panel opinion.
See Kolbe v. Hogan, 813 F.3d 160, 175
(4th Cir. 2016).
95
Because the evidence before us clearly demonstrates that
these popular weapons are commonly possessed for lawful purposes
and are therefore not dangerous and unusual, they are covered by
the Second Amendment. The majority errs in holding otherwise. 3
B. The Majority’s Balancing Test is contrary to Heller.
Rather than apply the Supreme Court’s common-use test to
determine whether the Second Amendment applies to a particular
type of weapon or magazine, the majority creates a heretofore
unknown “test,” which is whether the firearm in question is
“most useful in military service.” 4 Under this newly-birthed
3 It is evident that my good friends in the majority simply
do not like Heller’s determination that firearms commonly
possessed for lawful purposes are covered by the Second
Amendment. In the majority’s view, Heller’s “commonly possessed”
test produces unacceptable results in this case, providing
Second Amendment coverage for semiautomatic rifles owned by less
than 1% of the American public and thwarting “efforts by the
other 99%” to ban them. Majority Op. at 60. This assertion
rests on the false premise that every American who does not own
a semiautomatic rifle wishes to ban them. That is quite a
stretch. In fact, a recent Gallup poll shows that public
support for a so-called assault weapons ban is at 36%. Thus,
for what it is worth, substantially more Americans oppose a ban
than favor it. See www.gallup.com/poll/196658/support-assault-
weapons-ban-record-low.aspx (last visited Feb. 13, 2017).
4 Since the majority has not previously articulated this
novel interpretation of Heller, neither side in the district
court focused its evidence or legal arguments on proving or
disproving that semiautomatic rifles such as the AR-15 are “most
useful” as military weapons or on the question of whether
qualifying as “militarily useful” would remove the weapon from
Second Amendment protection. And the district court likewise
did not address these questions. If this is the new standard,
then basic fairness requires that the plaintiffs have an
(Continued)
96
test, which seems to be a stand-alone inquiry, the Second
Amendment does not apply if a court deems a weapon “most useful”
in combat operations. And in the case before us today, the
majority concludes that the Second Amendment does not apply at
all because semiautomatic rifles, in the military opinion of the
majority, are more useful as military weapons than as weapons
for individual self-defense, hunting and target or sport
shooting. See Majority Op. at 47 (“Whatever their other
potential uses—including self-defense—the AR-15, other assault
weapons, and large-capacity magazines prohibited by the FSA are
unquestionably most useful in military service.”). This
analysis is clearly at odds with the Supreme Court’s approach in
Heller setting out how courts, including the majority, are to go
about a Second Amendment inquiry. 5
opportunity to squarely meet the issue. See United States v.
Chester, 628 F.3d 673, 683
(4th Cir. 2010) (“Having established
the appropriate standard of review, we think it best to remand
this case to afford the government an opportunity to shoulder
its burden and Chester an opportunity to respond. Both sides
should have an opportunity to present their evidence and their
arguments to the district court in the first instance.”).
5In articulating and then applying its novel military
usefulness test, not only has the majority failed to afford
plaintiffs an opportunity to respond, but it has abandoned the
summary judgment standard and reached a conclusion based on
facts viewed in the light most favorable to the State, the
proponent of the summary judgment motion, and not the plaintiffs
as the non-movants. See Woollard v. Gallagher, 712 F.3d 865, 873
(4th Cir. 2013) (applying Fed. R. Civ. P. 56(a) in Second
(Continued)
97
First, the majority simply ignores “the pertinent Second
Amendment inquiry”—“whether [the firearms at issue] are commonly
possessed by law-abiding citizens for lawful purposes today.”
Caetano, 136 S. Ct. 1032
(Alito, J., concurring) (emphasis
omitted). But, this omission is understandable in light of the
millions of law-abiding Americans who possess the semiautomatic
rifles at issue, as explained previously. It is beyond debate.
Second, the majority makes no attempt to demonstrate that
semiautomatic rifles have been historically prohibited as
“dangerous and unusual” weapons. Instead, our court today has
adopted an ad hoc analysis that excludes a weapon from Second
Amendment protection if it appears to be “like” an M-16 or “most
useful in military service.” Under this approach, it is
irrelevant that a firearm may have been commonly possessed and
widely accepted as a legitimate firearm for law-abiding citizens
for hundreds of years; such a weapon could be removed from the
scope of the Second Amendment so long as a court says it is
“like” an M-16 or, even easier, just calls it a “weapon of war.”
Indeed, Justice Alito pointed out in his Caetano concurrence
that even a stun gun capable of only non-lethal force is
Amendment context and “viewing the facts and inferences
reasonably drawn therefrom in the light most favorable to the
nonmoving party”).
98
suitable for military use. See id.
Obviously, what the majority ignores from Heller is that “weapons that are most useful in military service-–M-16 rifles and the like”-–are not “typically possessed by law-abiding citizens” today. Heller,554 U.S. at 625, 627
. While the majority’s quoted reference from Heller would exclude weapons “most useful in military service” such as Gatling guns, mortars, bazookas, etc., no one could claim these items were ever commonly possessed for Second Amendment purposes. Indeed, such “M-16 rifles and the like” are outside the Second Amendment because they “are highly unusual in society at large.”Id. at 627
.
Third, Heller in no way suggests that the military
usefulness of a weapon disqualifies it from Second Amendment
protection. That is the majority’s singular concoction. On the
contrary, the Second Amendment has always been understood to
cover weapons useful in military operations. Indeed, the Second
Amendment at the Founding was grounded in the need to safeguard
the commonly possessed weapons of citizens for military service.
“[A]t the time of the Second Amendment’s ratification,” it was
understood that “all citizens capable of military service . . .
would bring the sorts of lawful weapons that they possessed at
home to militia duty.” Heller, 554 U.S. at 627
. “‘Ordinarily
when called for militia service able-bodied men were expected to
appear bearing arms supplied by themselves and of the kind in
99
common use at the time.’” Id.
at 624 (quoting United States v. Miller,307 U.S. 174, 179
(1939)) (alterations omitted). Under the majority’s analysis, a settler’s musket, the only weapon he would likely own and bring to militia service, would be most useful in military service—undoubtedly a weapon of war—and therefore not protected by the Second Amendment. This analysis turns Heller on its head. Indeed, the Court in Heller found it necessary to expressly reject the view that “only those weapons useful in warfare are protected.”Id.
(emphasis added).
Weapons useful in warfare are obviously protected by the Second
Amendment; if this were not so, the Court would have had no
reason to caution against the assumption that the Second
Amendment protects only weapons useful in military operations.
Read in context, Heller’s reference to “weapons that are
most useful in military service” clearly does not provide some
alternative to the “in common use” query for determining whether
the Second Amendment applies. If it were otherwise, the “most
useful in military service” rubric would remove nearly all
firearms from Second Amendment protection as nearly all firearms
can be useful in military service. Heller settled “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.” Chester, 628 F.3d at 674–
100
75. Heller determined that the prefatory clause of the Second
Amendment, which refers to the militia, does not limit the right
to “keep and bear Arms” set forth in the operative clause, 554 U.S. at 578
, and therefore that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia,”id. at 577
. In addressing the criticism
that the Court had simply read the prefatory clause out of the
Second Amendment, the Court explained:
It may be objected that if weapons that are most
useful in military service—M–16 rifles and the like—
may be banned, then the Second Amendment right is
completely detached from the prefatory clause. But as
we have said, the conception of the militia at the
time of the Second Amendment’s ratification was the
body of all citizens capable of military service, who
would bring the sorts of lawful weapons that they
possessed at home to militia duty. It may well be true
today that a militia, to be as effective as militias
in the 18th century, would require sophisticated arms
that are highly unusual in society at large. Indeed,
it may be true that no amount of small arms could be
useful against modern-day bombers and tanks. But the
fact that modern developments have limited the degree
of fit between the prefatory clause and the protected
right cannot change our interpretation of the right.
Id. at 627-28
(emphasis added). Thus, because the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia,”id. at 577
, “whether a weapon has a nexus to military utility is not the test as to whether that weapon receives Second Amendment protection,” Hollis,827 F.3d at 446
.
101
In sum, if a “weapon belongs to a class of arms commonly
used for lawful purposes,” Caetano, 136 S. Ct. at 1031 (Alito,
J., concurring), then it comes within the ambit of the Second
Amendment and our threshold inquiry is at an end. The fact that
a weapon is designed “for the purpose of bodily assault” and
“constructed to produce death or great bodily harm” “cannot be
used to identify arms that fall outside the Second Amendment.”
Id. (internal quotation marks omitted). That is, “the relative
dangerousness of a weapon is irrelevant” where the weapon is
“commonly used for lawful purposes.” Id. Under Heller,
therefore, even a weapon that some court concludes has
militarily useful features or is too dangerous for civilians to
possess is covered by the Second Amendment if it is “commonly
used for lawful purposes.”
C. It is anything but clear that semiautomatic
sporting rifles are “weapons of war.”
The majority concludes that the semiautomatic rifles banned
by Maryland law are most useful in military service, even though
they are not in regular use by any military force, including the
United States Army, whose standard-issue weapon has been the
fully automatic M16- and M4-series rifles. See Hollis, 827 F.3d at 440
n.2.
In its effort to show that semiautomatic rifles are
devastating weapons of war whose only legitimate purpose is to
102
lay waste to a battlefield full of combatants, the majority
first states that the rates of fire between the fully automatic
M16 service rifle and the semiautomatic AR-15 sporting rifle are
“nearly identical.” This claim seems counter-intuitive because
semiautomatic firearms require that the shooter pull the trigger
for each shot fired, while fully automatic weapons—otherwise
known as “machine guns”—do not require a pull of the trigger for
each shot and will discharge every round in the magazine as long
as the trigger is depressed. See Staples v. United States, 511 U.S. 600
, 602 n. 1 (1994). The rate of fire of a semiautomatic
firearm is determined simply by how fast the shooter can squeeze
the trigger.
The majority’s assertion might surprise the United States
Army, which sets the maximum effective rates of M4- and M16-
series rifles operating in semi-automatic mode at 45 to 65
rounds per minute--only about five rounds in five seconds (not
30 rounds as the majority believes). This is far slower than
150 to 200 rounds per minute that may effectively be fired by
the same arms operating in fully automatic mode. See United
States Dep’t of Army, Field Manual 3-22.9, Rifle Marksmanship,
M16-/M4-Series Weapons, Table 2-1 (2008). Some of the experts
at the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“BATF”) might be surprised as well, in light of the testimony
submitted to Congress on behalf of BATF:
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The AK-47 is a select fire weapon capable of firing
600 rounds per minute on full automatic and 40 rounds
per minute on semi-automatic. The AKS and AK-47 are
similar in appearance. The AK-47 . . . [has] been
manufactured as a machine gun. . . . The AKS is a
semi-automatic that, except for its deadly military
appearance, is no different from other semi-automatic
rifles.
Hearings on S. 386 Before the Subcomm. on the Constitution of
the Senate Comm. on the Judiciary, 101st Cong. 28-29 (1989).
Of course, if the majority is correct that the
semiautomatic AR-15’s rate of fire makes it a weapon of war
outside the scope of the Second Amendment, then all
semiautomatic firearms—including the vast majority of
semiautomatic handguns—enjoy no constitutional protection since
the rate of fire for any semiautomatic firearm is determined by
how fast the shooter can squeeze the trigger. Such a conclusion
obviously flies in the face of Heller, which never mentions rate
of fire as a relevant consideration. Likewise, the suggestion
that the ability to accept large–capacity magazines facilitates
a firearm’s military usefulness applies to all semiautomatic
weapons, including constitutionally-protected handguns, since
any firearm that can hold a magazine can theoretically hold one
of any size.
The majority also suggests that other features of
semiautomatic rifles like the AR-15 make them devastating
military weapons. But several of the features identified do not
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make the firearms more lethal or battle-ready, but easier to
use. On the contrary, many of the “military-style” components
“increase accuracy and improve ergonomics.” J.A. 2100. A
telescoping stock, for example, permits the operator to adjust
the length of the stock according to his or her physical size so
that the rifle can be held comfortably. J.A. 2182. Likewise, a
pistol grip provides comfort, stability, and accuracy, see David
B. Kopel, Rational Basis Analysis of “Assault Weapon”
Prohibition, 20 J. Contemp. L. 381
, 396 (1994) (“By holding the
pistol grip, the shooter keeps the barrel from rising after the
first shot, and thereby stays on target for a follow-up shot.
The defensive application is obvious, as is the public safety
advantage in preventing stray shots.”), and barrel shrouds keep
the operator from burning himself or herself upon contact with
the barrel. 6 And although flash suppressors can indeed conceal a
shooter’s position—which is also an advantage for someone
defending his or her home at night—they serve the primary
function of preventing the shooter from being blinded in low-
lighting conditions. See Kopel, at 397 (“Reduced flash
6
These features, the majority suggests, enable a shooter to
“spray-fire” rounds everywhere. “Spray-firing” can only be
accomplished with a fully automatic assault rifle like an M4
carbine; “[i]n semiautomatic mode it is possible to either aim
fire or to point shoot, but it is not possible to spray fire in
the manner as one would in fully automatic mode.” J.A. 2128.
105
decreases shooter's blindness--the momentary blindness caused by
the sudden flash of light from the explosion of gunpowder. The
flash reduction is especially important for shooting at dawn or
at dusk.”). None of these features convert a semiautomatic
rifle into a weapon of war like a machinegun carried into battle
by actual soldiers. It is unclear to me why features that make
a firearm easier and safer to operate add to its battlefield
prowess. 7
In deciding that the banned semiautomatic rifles “are
unquestionably most useful in military service,” the majority
cavalierly dismisses “their other potential uses” without
discussion. The irony is that millions of law-abiding Americans
actually use these versatile guns, while there do not seem to be
any military forces that routinely carry an AR-15 or other
semiautomatic sporting rifles as an officially-issued service
weapon—at least the majority has not identified any. If these
firearms were such devastating weapons of war, one would think
that they would be standard issue for military forces across the
globe. Whatever the potential military usefulness of these
7
Nor does it appear that an AR-15-style rifle fires rounds
that create a greater risk to civilians than rounds fired by a
standard hunting rifle. In fact, just the opposite is true.
The AR-15’s standard .223/5.56 mm ammunition is “quite anemic in
penetration capability and pale[s] in destructive capacity when
compared to common civilian hunting rifles . . . .” J.A. 2095.
106
weapons, millions of American citizens actually use them for
sporting purposes and possess them to defend themselves, their
families and their homes. Indeed, plaintiffs’ evidence suggests
that “[t]he semi-automatic AR15 carbine is likely the most
ergonomic, safe, readily available and effective firearm for
civilian self-defense.” J.A. 2091. 8
The semiautomatic firearms banned by Maryland are commonly
“chosen by Americans for self-defense in the home” and are thus
clearly protected by the Second Amendment--“[w]hatever the
reason” for their popularity. Heller, 554 U.S. at 629
. The real question is whether the district court applied the appropriate level of scrutiny in determining any limitations on Second Amendment protection. As explained below and in the now- vacated panel opinion, see Kolbe,813 F.3d at 179-84
, it did
not.
II. Strict Scrutiny Applies
To select the proper level of scrutiny, we consider “the
nature of the conduct being regulated and the degree to which
8
The majority’s utilization of the “military use” theory
instead of the common use test produces ironic results. For
example, the law my colleagues uphold today permits Maryland
residents to possess the M1 Garand rifle, which was the
standard-issue battle rifle for American troops in World War II
and the Korean War. The result of the holding in this case is
that it is legal in Maryland to possess a rifle that was
actually used by our military on the battlefield, but illegal to
possess a rifle never used by our military.
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the challenged law burdens the right.” Chester, 628 F.3d at 682
. “A severe burden on the core Second Amendment right of armed self-defense should require strong justification.” United States v. Masciandaro,638 F.3d 458, 470
(4th Cir. 2011) (internal quotation marks omitted). However, “laws that do not implicate the central self-defense concern of the Second Amendment[] may be more easily justified.”Id.
(internal quotation marks omitted); see Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives,700 F.3d 185, 195
(5th Cir. 2012) (“A less severe regulation—a regulation that
does not encroach on the core of the Second Amendment—requires a
less demanding means-ends showing.”).
Maryland’s ban on the AR-15 and other semiautomatic rifles
forbids its law-abiding citizens from purchasing commonly
possessed firearms for use in their homes for the protection of
self and family. By reaching into private homes, where the
protection afforded by the Second Amendment is at its greatest,
Maryland’s law clearly implicates the “core” of the Second
Amendment: “the right of law-abiding, responsible citizens to
use arms in defense of hearth and home.” Heller, 554 U.S. at 635
. The Supreme Court in Heller made clear that the “inherent right of self-defense has been central to the Second Amendment,”id. at 628
(emphasis added), and that this central component of
the Second Amendment is at its strongest within “the home where
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the need for defense of self, family, and property is most
acute,” id.
See also Kachalsky v. County of Westchester,701 F.3d 81, 89
(2d Cir. 2012) (“What we know from [Heller and McDonald v. City of Chicago] is that Second Amendment guarantees are at their zenith within the home.”). At stake here is a “basic right,” McDonald v. City of Chicago,561 U.S. 742, 767
(2010), “that the Framers and ratifiers of the Fourteenth Amendment counted . . . among those fundamental rights necessary to our system of ordered liberty,”id. at 778
. “The [Supreme] Court [in Heller] went to great lengths to emphasize the special place that the home-an individual’s private property-occupies in our society.” GeorgiaCarry.Org, Inc. v. Georgia,687 F.3d 1244, 1259
(11th Cir. 2012).
The majority is incredulous that we would apply strict
scrutiny to a law prohibiting the possession of a commonly used
firearm to protect family and home. But, of course we would
apply strict scrutiny—we have no other alternative in these
circumstances. Once it is determined that a given weapon is
covered by the Second Amendment, then obviously the in-home
possession of that weapon for self-defense is core Second
Amendment conduct and strict scrutiny must apply to a law that
prohibits it. This position is not remarkable in the least, and
I am not alone in this circuit in adhering to it. Indeed, a
panel of this court recently made very clear in United States v.
109
Hosford that strict scrutiny applies when a law restricting
possession of a firearm applies to conduct inside of the home
and touches on self-defense concerns. See 843 F.3d 161, 168
(4th Cir. 2016). In Hosford, which was decided after en banc argument in this case, the defendant raised a Second Amendment challenge to his conviction under a law that “impose[d] a licensing requirement on those who wish[ed] to profit by regularly selling firearms outside of their personal collection.”Id.
In explaining why the law at issue there
should receive only intermediate scrutiny, the panel stated as
follows:
Here, even assuming that the prohibition
implicates conduct protected by the Second Amendment,
the prohibition does not touch on the Second
Amendment's core protections. Individuals remain free
to possess firearms for self-defense. Individuals also
remain free to purchase or sell firearms owned for
personal, self-defensive use. . . . [The law] serves,
not as a prohibition, but as a condition or
qualification. The law, therefore, regulates rather
than restricts, addresses only conduct occurring
outside the home, and does not touch on self-defense
concerns. It is thus subject to intermediate scrutiny.
Id.
(emphasis added). In this passage, the Hosford panel very
ably shows why intermediate scrutiny is required there, but
strict scrutiny is required here. Under the Maryland law we
consider today, individuals do not remain free to purchase or
possess the banned firearms for self-defense inside of their
homes. Thus, Maryland’s law restricts rather than regulates; it
110
addresses conduct occurring inside the home; and it directly
touches self-defense concerns in the home. Maryland’s law
imposes dramatic limitations on the core protections guaranteed
by the Second Amendment and, as implicitly admitted by the
Hosford panel, requires the court to apply strict scrutiny.
My friends in the majority do not apply strict scrutiny
because they do not believe that the Maryland law significantly
burdens the “core lawful purpose” of the Second Amendment.
Their reasoning? Maryland left handguns (and other weapons) for
its residents to use to defend their homes, and this ought to be
enough. This line of thought was expressly rejected by the
Supreme Court in Heller, which dismissed the District of
Columbia’s reverse contention that its handgun ban did not
unconstitutionally burden the right to self-defense because long
guns were still permitted for home defense. See Heller, 554 U.S. at 629
(“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.”); accord Parker v. District of Columbia,478 F.3d 370, 400
(D.C.
Cir. 2007) (rejecting the District’s argument that alternative
weapons rendered handgun ban lawful, calling it “frivolous,” and
noting that “[i]t could be similarly contended that all firearms
may be banned so long as sabers were permitted”). As long as
the firearms chosen are those commonly possessed by the American
111
people for lawful purposes—and the rifles at issue here most
certainly are—states cannot prohibit their residents from
purchasing them for self-defense in the home unless that
restriction can meet strict scrutiny review.
The majority, however, implies that this portion of Heller
does not apply to a ban of commonly possessed firearms if
handguns are still available to the homeowner because handguns
are “the quintessential self-defense weapon.” 554 U.S. at 629
. If the majority were correct, then any state “would be free to ban all weapons except handguns, because handguns are the most popular weapon chosen by Americans for self-defense in the home.” Caetano,136 S. Ct. 1032
(Alito, J., concurring) (internal quotation marks omitted). Under the majority’s logic, a state could similarly ban all shotguns, even those commonly used in hunting, and not transgress the Second Amendment, so long as handguns remained lawful to possess. The fact that handguns are still available is irrelevant. If other firearms, though “less popular than handguns,” are nonetheless “widely owned and accepted as a legitimate means of self-defense across the country,” they cannot be banned simply because more popular handguns are not.Id. at 1033
.
Finally, we are told that the ban on semiautomatic rifles
is not burdensome because these weapons are not even well-suited
for defense of hearth and home—handguns are better and that is
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all law-abiding citizens need. 9 This is patently wrong. First,
there are legitimate reasons for citizens to favor semiautomatic
rifles over handguns in defending themselves and their families
at home. The record contains evidence, which on summary
judgment was to be viewed in the light most favorable to the
plaintiffs, suggesting that “handguns are inherently less
accurate than long guns” as they “are more difficult to steady”
and “absorb less of the recoil[,] . . . [thus] reducing
accuracy.” J.A. 2131. This can be an important consideration
for a typical homeowner, who “under the extreme duress of an
armed and advancing attacker is likely to fire at, but miss, his
or her target.” J.A. 2123. “Nervousness and anxiety, lighting
conditions, the presence of physical obstacles . . . , and the
mechanics of retreat are all factors which contribute to [the]
likelihood” that the homeowner will shoot at but miss a home
invader. Id.
These factors could also affect an individual’s
ability to reload a firearm quickly during a home invasion.
9If, as the majority says, there is “scant evidence” that
the prohibited semiautomatic rifles are well-suited for home
defense, then there is even less reason to believe that these
weapons are best suited for combat operations. After all, it
cannot be disputed that one reason non-criminal citizens
actually keep these weapons at home is for self-defense. I have
searched the record in vain for the statistics on how many
standing armies issue AR-15s or semiautomatic-only-weapons to
their troops. I do not believe there are any.
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Similarly, a citizen's ability to defend himself and his home is
enhanced with an LCM.
Second, the means selected by citizens to defend themselves
and their families at home is an intensely personal choice
dependent upon circumstances unique to each individual. Not
everyone who would bear arms in defense of his home is
comfortable or confident using a handgun. As long as the weapon
chosen is one commonly possessed by the American people for
lawful purposes—and the rifles at issue here most certainly are—
the state has very little say about whether its citizens should
keep it in their homes for protection. “The question under
Heller is not whether citizens have adequate alternatives
available for self-defense. Rather, Heller asks whether the law
bans types of firearms commonly used for a lawful purpose—
regardless of whether alternatives exist.” Friedman v. City of
Highland Park, 136 S. Ct. 447, 449
(2015) (Thomas, J., dissenting from the denial of certiorari). “[T]he Second Amendment confers rights upon individual citizens—not state governments,” and it clearly does not “delegate to States and localities the power to decide which firearms people may possess.”Id.
“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller,554 U.S. at 634
.
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Nevertheless, Maryland has taken the choice away from its
residents and simply determined that, regardless of the
circumstances in any case, its people, whether living in a 700
square-foot apartment or a 50-acre farm, may only protect their
loved ones with one of the guns the State thinks they should
use—perhaps a handgun, or a slow-to-load bolt-action hunting
rifle or a shotgun with heavy recoil. “The right to self-
defense is largely meaningless if it does not include the right
to choose the most effective means of defending oneself.”
Friedman v. City of Highland Park, 784 F.3d 406, 418
(7th Cir. 2015) (Manion, J., dissenting). Indeed, “the ultimate decision for what constitutes the most effective means of defending one’s home, family, and property resides in individual citizens and not the government. . . . The extent of danger—real or imagined—that a citizen faces at home is a matter only that person can assess in full.”Id. at 413
.
For a law-abiding citizen who, for whatever reason, chooses
to protect his home with a semi-automatic rifle instead of a
semi-automatic handgun, Maryland’s law clearly imposes a
significant burden on the exercise of the right to arm oneself
at home, and it should at least be subjected to strict scrutiny
review before it is allowed to stand.
For the reasons I have set forth, I respectfully dissent.
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TRAXLER, Circuit Judge, dissenting as to Part IV.A and
concurring as to Part IV.B:
For the reasons set forth in the now-vacated panel opinion,
I dissent from the majority’s opinion on the equal protection
claim. See Kolbe v. Hogan, 813 F.3d 160, 199-202
(4th Cir.
2016).
I concur in the result reached by the majority with respect
to the vagueness challenge, for the reasons expressed in the
now-vacated panel opinion. See id. at 190-92
.
116