Gould v. Morgan , 907 F.3d 659 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2202
MICHAEL GOULD, et al.,
Plaintiffs, Appellants,
v.
MARK MORGAN, in his Official Capacity as Acting Chief of the
Brookline Police Department; WILLIAM G. GROSS, in his Official
Capacity as Commissioner of the Boston Police Department; and
COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
David H. Thompson, with whom Peter A. Patterson, John D.
Ohlendorf, Cooper & Kirk, PLLC, David D. Jensen, and David Jensen
PLLC were on brief, for appellants.
Stephen P. Halbrook, John Parker Sweeney, James W. Porter,
III, T. Sky Woodward, and Bradley Arant Boult Cummings LLP on brief
for National Rifle Association of America, Inc., amicus curiae.

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Commissioner William G. Gross has been substituted for former
Commissioner William B. Evans as respondent.
Mark Brnovich, Attorney General of Arizona, Oramel H. (O.H.)
Skinner, Chief of Government Accountability & Special Litigation,
Dominic E. Draye, Solicitor General, and Angela Kebric Paton,
Assistant Solicitor General, Arizona Attorney General's Office, on
brief for states of Arizona, Alabama, Arkansas, Georgia, Idaho,
Indiana, Louisiana, Michigan, Missouri, Montana, Nebraska,
Oklahoma, South Carolina, South Dakota, Texas, Utah, West
Virginia, Wisconsin, and Wyoming, amici curiae.
Matthew M. McGarry, Assistant Corporation Counsel, City of
Boston Law Department, with whom Peter M. Geraghty, Assistant
Corporation Counsel, Office of Legal Advisor, Boston Police
Department, was on brief, for appellee Evans.
Jonathan E. Taylor, with whom John Buchheit, Office of Town
Counsel, Deepak Gupta, and Gupta Wessler PLLC were on brief, for
appellee Morgan.
Timothy J. Casey, Assistant Attorney General, Government
Bureau, with whom Maura Healey, Attorney General, was on brief,
for appellee Massachusetts Office of the Attorney General.
Gurbir S. Grewal, Attorney General of New Jersey, Andrew J.
Bruck, Executive Assistant Attorney General, Jeremy M. Feigenbaum,
Assistant Attorney General, Claudia Joy DeMitro and Adam D. Klein,
Deputy Attorneys General, on brief, for states of New Jersey,
California, Connecticut, Delaware, Hawaii, Illinois, Iowa,
Maryland, New York, Rhode Island, and Virginia, and District of
Columbia, amici curiae.
E. Ross Cohen, Mark C. Fleming, Tasha J. Bahal, and Wilmer
Cutler Pickering Hale and Dorr LLP on brief for Everytown for Gun
Safety, amicus curiae.
Ira M. Feinberg, Shaun M. Donnelly, and Hogan Lovells US LLP
on brief for various Professors of History and Constitutional Law,
amici curiae.
Simon J. Frankel, Nandini Singh, Allison M. Whelan, Covington
& Burling LLP, J. Adam Skaggs, and Hannah Shearer on brief for
Giffords Law Center to Prevent Gun Violence, amicus curiae.
Antonio J. Perez-Marques, David B. Toscano, Kevin Osowski,
Sushila Rao, Anne Burton-Walsh, and Davis Polk & Wardwell LLP for
Prosecutors Against Gun Violence, amicus curiae.
November 2, 2018
SELYA, Circuit Judge. This case involves a
constitutional challenge to the Massachusetts firearms licensing
statute, as implemented in the communities of Boston and Brookline.
All of the individual plaintiffs sought and received licenses from
one of those two communities to carry firearms in public. The
licenses, though, were restricted: they allowed the plaintiffs to
carry firearms only in relation to certain specified activities
but denied them the right to carry firearms more generally.
The plaintiffs say that the Massachusetts firearms
licensing statute, as implemented in Boston and Brookline,
violates the Second Amendment. The district court disagreed, and
so do we. Mindful that "the right secured by the Second Amendment
is not unlimited," District of Columbia v. Heller, 554 U.S. 570,
626 (2008), we hold that the challenged regime bears a substantial
relationship to important governmental interests in promoting
public safety and crime prevention without offending the
plaintiffs' Second Amendment rights. Accordingly, we affirm the
district court's entry of summary judgment for the defendants. In
the last analysis, the plaintiffs simply do not have the right "to
carry arms for any sort of confrontation" or "for whatever purpose"
they may choose. Id. at 595, 626 (emphasis omitted).
I. BACKGROUND
We start by rehearsing the applicable statutory and
regulatory scheme and then recount the travel of the case. In
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Massachusetts, carrying a firearm in public without a license is
a crime. See Mass. Gen. Laws ch. 269, § 10(a); see also Hightower
v. City of Bos., 693 F.3d 61, 65 (1st Cir. 2012). The Massachusetts
firearms licensing statute "is part of a large regulatory scheme
to promote the public safety." Commonwealth v. Davis, 343 N.E.2d
847, 849 (Mass. 1976). Under its current incarnation, Mass. Gen.
Laws ch. 140, § 131, an individual may request a license to carry
a firearm in public by submitting an application to the appropriate
licensing authority, which is defined as either the applicant's
local "chief of police or the board or officer having control of
the police in a city or town, or persons authorized by them." Id.§ 121; see § 131(d). Such a license allows the holder to:
purchase, rent, lease, borrow, possess and
carry: (i) firearms, including large capacity
firearms, and feeding devices and ammunition
therefor, for all lawful purposes, subject to
such restrictions relative to the possession,
use or carrying of firearms as the licensing
authority deems proper; and (ii) rifles and
shotguns, including large capacity weapons,
and feeding devices and ammunition therefor,
for all lawful purposes; provided, however,
that the licensing authority may impose such
restrictions relative to the possession, use
or carrying of large capacity rifles and
shotguns as it deems proper.
Id. § 131(a). For this purpose, a firearm is defined as "a stun
gun or a pistol, revolver or other weapon of any description,
loaded or unloaded, from which a shot or bullet can be discharged
and of which the length of the barrel or barrels is less than 16
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inches or 18 inches in the case of a shotgun as originally
manufactured." Id. § 121.
The Massachusetts statute describes the circumstances in
which a license to carry may be granted, denied, revoked, or
restricted to particular uses. See id. § 131. Pertinently, a
local licensing authority "may issue [a license] if it appears
that the applicant is not a prohibited person . . . and that the
applicant has good reason to fear injury . . . or for any other
reason, including the carrying of firearms for use in sport or
target practice only." Id. § 131(d). An applicant is a
"prohibited person" if the licensing authority determines, inter
alia, that he is a convicted felon, that he is younger than twenty-
one years of age, or that he is otherwise unsuitable (by reason
of, say, mental illness or involvement in domestic violence) to
receive a license to carry. Id.; see generally Chief of Police of
Worcester v. Holden, 26 N.E.3d 715, 724 (Mass. 2015) (discussing
"suitable person" standard).
Once the licensing authority satisfies itself that the
applicant is not a prohibited person, it may issue a license to
carry as long as "the applicant can demonstrate a 'proper purpose'
for carrying a firearm." Ruggiero v. Police Comm'r of Bos., 464
N.E.2d 104, 107 (Mass. App. Ct. 1984). Refined to bare essence,
the statute identifies two pillars upon which the granting of a
license to carry may rest: (1) good reason to fear injury, and
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(2) other reasons (such as sport or target practice). See id.Municipalities differ in their requirements for an applicant to
establish eligibility based on the first pillar. Boston and
Brookline have both promulgated policies requiring that an
applicant furnish some information to distinguish his own need for
self-defense from that of the general public. This requirement —
which is the focal point of the plaintiffs' challenge — means that
the applicant must identify a specific need, that is, a need above
and beyond a generalized desire to be safe. Cf. id. at 108 (finding
insufficient applicant's statement that he had no intention of
"spend[ing] his entire life behind locked doors [and was] a
potential victim of crimes against his person").
An applicant who does not demonstrate a good reason to
fear injury either to himself or to his property may still receive
a license to carry a firearm; subject, however, to such
restrictions as the licensing authority deems meet. See Mass.
Gen. Laws ch. 140, § 131(a), (d). The statutory scheme vests in
the licensing authority discretion to decide, on a case-by-case
basis, whether and to what extent a restricted license should be
issued. See id. Under this arrangement, a licensing authority
may issue a restricted license that permits the carrying of a
firearm only when the applicant is engaged in the particular
activities specified in his application. See Ruggiero, 464 N.E.2d
at 107 & n.5.
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Not all communities offer the same types of restricted
licenses. Boston offers licenses restricted to employment,
hunting and target practice, or sport. For its part, Brookline
offers licenses subject to restrictions for employment, hunting,
target practice, sport, transport, domestic (use only in and around
one's home), or collecting. A license restricted to employment
allows the licensee to carry a firearm for all employment-related
purposes, that is, while working and while traveling to and from
work. A license restricted to hunting allows the licensee to carry
a firearm for lawful hunting of game and fowl. Similarly, a
license restricted to sport allows the licensee to carry a firearm
while partaking in hunting, target practice, and a wide variety of
outdoor recreational activities (such as hiking, camping, and
cross-country skiing).
In Boston, slightly more than forty percent of all
licenses are issued without restrictions of any kind. In
Brookline, the number shrinks to approximately thirty-five
percent.1 Every such license (whether or not restricted) permits
the licensee to keep and carry firearms for personal protection in
the home.
1 Boston and Brookline are not the only communities that make
prolific use of restricted licenses. In 2015, fourteen communities
(including Springfield, Lowell, New Bedford, Newton, and Medford)
imposed restrictions on more than half of the licenses that they
issued. Eleven other communities imposed restrictions on more
than one-third of the licenses that they issued.
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Once issued, a license may be revoked or suspended "upon
the occurrence of any event that would have disqualified the holder
from being issued such license or from having such license renewed"
or "if it appears that the holder is no longer a suitable person
to possess such license." Mass. Gen. Laws ch. 140, § 131(f). Any
person "aggrieved by a denial, revocation, suspension or
restriction placed on a license" may seek judicial review. Id.;
see Hightower, 693 F.3d at 67. Such redress must be sought within
ninety days when challenging a denial, revocation, or suspension.
See Mass. Gen. Laws ch. 140, § 131(f). In contrast, judicial
review may be sought at "any time" when challenging a restriction.
Id.Against this backdrop, we turn to the particulars of the
case at hand. The individual plaintiffs (none of whom is a
prohibited person) all reside in either Boston or Brookline. In
each community, the local licensing authority is the chief of
police.
For present purposes, the firearms licensing policies of
the two communities are not materially different. Both police
departments review applications for firearms licenses
individually, giving careful attention to each applicant and to
his stated reasons for wanting a license. Each police chief has
promulgated a policy to the effect that a generalized desire to
carry a firearm for self-defense, without more, will not constitute
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"good reason" sufficient to warrant the issuance of an unrestricted
license. Instead, Boston and Brookline require an applicant to
articulate a reason to fear injury to himself or his property that
distinguishes him from the general population. Applicants who are
employed in certain vocations (specifically, physicians,
attorneys, and police officers) are more likely to be granted
unrestricted licenses in both communities.2
The individual plaintiffs all sought and obtained
licenses to carry firearms, but those licenses were issued with a
variety of restrictions:
 Plaintiff Michael Gould is a professional
photographer who lives in Brookline. In 2014, the
Brookline Police Department granted him a license
to carry firearms, restricted to employment and
sport. These restrictions allow him to carry
firearms on his person at home and whenever he is
working with his high-priced photography equipment
or when engaged in a range of recreational
activities.
 Plaintiffs Christopher Hart, John Stanton, Danny
Weng, and Sarah Zesch live in Boston. Each of them
2 Boston (but not Brookline) also will grant unrestricted
licenses to applicants who already have been issued unrestricted
licenses by some other community in Massachusetts.
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applied for an unrestricted firearms license but
received a restricted license (containing hunting
and target-practice restrictions).
The complaint alleges that each of the individual plaintiffs seeks
an unrestricted license to carry firearms in public for the purpose
of self-defense.
The individual plaintiffs are joined by plaintiff
Commonwealth Second Amendment, Inc. (Comm2A), a non-profit
organization dedicated to advancing the right to keep and bear
arms. All of the individual plaintiffs are members of Comm2A.
Although all of the individual plaintiffs wish to have
unrestricted firearms licenses for personal protection, none of
them has tried to show that his or her fear of injury is in any
way distinct from that of the general population. Thus, none of
them has been able to satisfy Boston's or Brookline's "good reason"
standard.
Invoking 42 U.S.C. § 1983, the plaintiffs brought suit
in the United States District Court for the District of
Massachusetts against the chiefs of police of Boston and Brookline.
They alleged that these officials, acting under color of state
law, infringed their Second Amendment rights. To remedy this
infringement, the plaintiffs sought a declaration that the
Massachusetts firearms licensing statute, as administered in
Boston and Brookline, transgressed the Second Amendment by
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allowing licensing authorities to deny unrestricted licenses to
otherwise qualified individuals who lack a particularized reason
to fear injury. See 28 U.S.C. §§ 2201, 2202. They also sought
injunctive relief directing the defendants to remove all
restrictions from the licenses held by the individual plaintiffs
and barring the defendants from issuing restricted licenses in the
future.
On motion, the district court allowed the Office of the
Attorney General of the Commonwealth of Massachusetts to join the
fray as an intervenor-defendant. See Fed. R. Civ. P. 24(a)(1).
After the close of discovery, the parties cross-moved for summary
judgment. The district court, in a thoughtful rescript, granted
summary judgment for the defendants. See Gould v. O'Leary, 291 F.
Supp. 3d 155, 174 (D. Mass. 2017). In its ruling, the district
court first assumed (without deciding) that the challenged
statutory and regulatory scheme burdened the Second Amendment
right to bear arms. See id. at 169. Next, it determined that
intermediate scrutiny comprised the appropriate lens through which
to view the constitutionality of the challenged law. See id. at
170. Finally, the court concluded that the challenged statutory
and regulatory scheme passed intermediate scrutiny: it bore a
substantial relationship to the important governmental interests
of promoting public safety and preventing crime. See id. at 173.
In reaching this conclusion, the court ceded some deference to the
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predictive judgments of the legislature "regarding matters that
are beyond the competence of" courts. Id. at 171 (quoting
Kachalsky v. Cty. of Westchester, 701 F.3d 81, 97 (2d Cir. 2012)).
This timely appeal ensued. The parties have filed
exemplary briefs, and those submissions have been supplemented by
a myriad of helpful amicus briefs.
II. FRAMING THE ISSUE
Before plunging into the merits of the plaintiffs'
claims, we pause for some additional stage-setting. To begin, we
note that the plaintiffs' appeal hinges on the answers to two
central questions: Does the Second Amendment protect the right to
carry a firearm outside the home for self-defense? And if they
prevail on that question, may the government condition the exercise
of the right to bear arms on a showing that a citizen has a "good
reason" (beyond a generalized desire for self-defense) for
carrying a firearm outside the home? Undergirding the plaintiffs'
proposed answers to these questions is their claim that the manner
in which Boston and Brookline have interpreted the Massachusetts
"good reason" requirement offends the Second Amendment.
Importantly, though, the plaintiffs do not challenge the
Massachusetts firearms licensing statute as a whole, nor do they
challenge the Commonwealth's requirement that an individual must
have a license to carry firearms in public.
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Because the plaintiffs' appeal is based exclusively upon
the Second Amendment, our analysis follows suit. Consequently, we
do not consider — let alone foreclose — any other potential
challenges to the manner in which Boston and Brookline have chosen
to exercise their discretion under the Massachusetts firearms
licensing statute. By the same token, even though we recognize
that the majority of Massachusetts communities have firearms
licensing policies that are more permissive than those adopted in
Boston and Brookline, we do not regard those policies as relevant
to our analysis.
Next, we think it is useful to draw a distinction between
two types of firearms licensing regulations. Location-based
regulations limit where firearms may be carried. In contrast,
applicant-based regulations identify prohibited persons (such as
felons) who may be barred from carrying firearms anywhere. The
policies at issue here fall into the former category. Thus, we do
not pass upon the validity of "prohibited person" regulations.
After all, the plaintiffs have not challenged the Commonwealth's
requirement, followed fastidiously in Boston and Brookline, that
a license to carry firearms may be issued only to a suitable
person.
Finally, we deem it helpful to offer a glossary of sorts,
defining certain terms as those terms are used in this opinion.
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 When we say the "Massachusetts statute," we mean
(unless otherwise indicated) the "good reason"
requirement of the Massachusetts firearms licensing
statute.
 When we refer to the "Boston and Brookline
policies," we mean the administration and
implementation of the "good reason" requirement by
those two municipalities.
 When we say "firearm," we mean a conventional
handgun. See Mass. Gen. Laws ch. 140, § 121(defining "firearm" as "a stun gun or a pistol,
revolver or other weapon of any description, loaded
or unloaded, from which a shot or bullet can be
discharged and of which the length of the barrel or
barrels is less than 16 inches or 18 inches in the
case of a shotgun as originally manufactured"). We
do not use this term to refer to assault weapons,
which have a separate definition under
Massachusetts law. See id. When we say in "public," we mean outside of one's
home, excluding "sensitive places such as schools
and government buildings," where the Supreme Court
has cautioned that the regulation of firearms is
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"presumptively lawful." Heller, 554 U.S. at 626-
27 & n.26.
 The terms "carry" and "carriage" refer to
"wear[ing], bear[ing], or carry[ing]" a firearm
"upon the person or in the clothing or in a pocket,
for the purpose . . . of being armed and ready for
offensive or defensive action in a case of conflict
with another person." Id. at 584 (quoting
Muscarello v. United States, 524 U.S. 125, 143
(1998) (Ginsburg, J., dissenting)). Unless
otherwise specified, we use these terms to include
both open and concealed carriage. We caution,
however, that laws restricting concealed carriage
alone may call for a somewhat different analysis.
See Hightower, 693 F.3d at 73-74 (finding
"[l]icensing of the carrying of concealed weapons"
to be "presumptively lawful").
III. ANALYSIS
The plaintiffs mount two principal claims of error.
First, they contend that the right to carry firearms in public for
self-defense lies at the core of the Second Amendment and, thus,
admits of no regulation. Second, they contend that the Boston and
Brookline policies fail under any level of scrutiny that might
arguably apply. We approach these claims of error mindful that
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our review of the district court's entry of summary judgment is de
novo. See id. at 70; see also Watchtower Bible & Tract Soc'y of
N.Y., Inc. v. Sagardía de Jesús, 634 F.3d 3, 10 (1st Cir. 2011)
(reviewing constitutional challenge to state law de novo). This
standard is unchanged where, as here, an appeal follows the
district court's disposition of cross-motions for summary
judgment. See Blackie v. Maine, 75 F.3d 716, 720-21 (1st Cir.
1996). The task at hand is simplified by the parties' agreement
that there are no genuine issues of material fact and that the
critical constitutional questions are purely legal inquiries.
A. Legal Framework.
The Second Amendment provides that "[a] well regulated
Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed." U.S.
Const. amend. II. For over two centuries, the Supreme Court said
very little either about the meaning of these words or about the
scope of the guaranteed right. In 2008, though, the Court made
pellucid that the Second Amendment protects the right of an
individual to keep and bear arms (unconnected to service in the
militia). See Heller, 554 U.S. at 592. Two years later, the Court
confirmed that the Second Amendment applies with full force to the
states through the Fourteenth Amendment. See McDonald v. City of
Chicago, 561 U.S. 742, 784-85 (2010).
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These decisions merely scratched the surface: they did
not provide much clarity as to how Second Amendment claims should
be analyzed in future cases. In Heller, for example, the Court
considered the District of Columbia's near-complete ban on keeping
operable handguns in the home. See 554 U.S. at 574-75. The Court
concluded that this law infringed "the right of law-abiding,
responsible citizens to use arms in defense of hearth and home" —
an interest that the Court described as "elevate[d] above all other
[Second Amendment] interests." Id. at 635. The Court observed
that "[f]ew laws in the history of our Nation have come close to
the severe restriction of the District's handgun ban." Id. at
629. Starting from this premise, the Court decided that the
challenged law was so restrictive of the Second Amendment right
that it would fail to pass muster "[u]nder any of the standards of
scrutiny that we have applied to enumerated constitutional
rights." Id. at 628-29.
In the plaintiffs' view, it follows directly from Heller
that the Second Amendment guarantees them an unconditional right
to carry firearms in public for self-defense. On this basis, they
urge us to find that the Boston and Brookline policies are
unconstitutional. We are not so sanguine: Heller simply does not
provide a categorical answer to whether the challenged policies
violate the Constitution. Put another way, nothing in Heller
"impugn[s] legislative designs that comprise . . . public welfare
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regulations aimed at addressing perceived inherent dangers and
risks surrounding the public possession of loaded, operable
firearms." Powell v. Tompkins, 783 F.3d 332, 346 (1st Cir. 2015).
This conclusion is reinforced by McDonald — a case in which the
Court plainly read Heller in this way, observing that Heller "does
not imperil every law regulating firearms." 561 U.S. at 786.
Indeed, Heller itself made precisely this point. The
majority opinion there stated that "[l]ike most rights, the right
secured by the Second Amendment is not unlimited" and thus does
not protect "a right to keep and carry any weapon whatsoever in
any manner whatsoever and for whatever purpose" or "for any sort
of confrontation." 554 U.S. at 595, 626 (emphasis omitted). The
Court went on to provide a non-exhaustive list of "presumptively
lawful regulatory measures," including "longstanding prohibitions
on the possession of firearms by felons and the mentally ill,"
"laws forbidding the carrying of firearms in sensitive places such
as schools and government buildings," and "laws imposing
conditions and qualifications on the commercial sale of arms."
Id. at 626-27 & n.26.
Even so, the Heller Court never presumed "to clarify the
entire field" of permissible Second Amendment regulation. Id. at
635. Of particular pertinence for present purposes, Heller was
silent about both "the scope of [the Second Amendment] right beyond
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the home and the standards for determining when and how the right
can be regulated by a government." Kachalsky, 701 F.3d at 89.
In the decade since Heller was decided, courts have
adopted a two-step approach for analyzing claims that a statute,
ordinance, or regulation infringes the Second Amendment right.
See, e.g., Young v. Hawaii, 896 F.3d 1044, 1051 (9th Cir. 2018);
Drake v. Filko, 724 F.3d 426, 429 (3d Cir. 2013); Woollard v.
Gallagher, 712 F.3d 865, 874-75 (4th Cir. 2013); Nat'l Rifle Ass'n
of Am., Inc. v. Bureau of ATFE (NRA), 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 (Heller II), 670 F.3d 1244, 1252
(D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 701-04
(7th Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01 (10th
Cir. 2010); see also Powell, 783 F.3d at 347 n.9. Under this
approach, the court first asks whether the challenged law burdens
conduct that falls within the scope of the Second Amendment's
guarantee. See NRA, 700 F.3d at 194. This is a backward-looking
inquiry, which seeks to determine whether the regulated conduct
"was understood to be within the scope of the right at the time of
ratification." United States v. Chester, 628 F.3d 673, 680 (4th
Cir. 2010). Because the challenge here is directed at a state
law, the pertinent point in time would be 1868 (when the Fourteenth
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Amendment was ratified).3 See Greeno, 679 F.3d at 518. If the
challenged law imposes no such burden, it is valid. If, however,
it burdens conduct falling within the scope of the Second
Amendment, the court then must determine what level of scrutiny is
appropriate and must proceed to decide whether the challenged law
survives that level of scrutiny. See Drake, 724 F.3d at 429;
Woollard, 712 F.3d at 875.
Although we have not yet explicitly adopted this two-
step approach,4 we do so today. This approach results in a workable
framework, consistent with Heller, for evaluating whether a
challenged law infringes Second Amendment rights.
B. Scope of Second Amendment Right.
The framework requires that we start by pondering
"whether the conduct at issue was understood to be within the scope
3This date contrasts with the date of ratification of the
Second Amendment itself (1791). It is not at all clear to us that
the scope of the Second Amendment should be different when
analyzing a federal law than when analyzing a state law. Here,
however, we need not probe this point: our conclusion with respect
to the historical record would be the same regardless of which
ratification date was used.
4 On occasion, though, we have employed an analysis that
resembled some part of the framework. Thus, in United States v.
Rene E., we traced the historical roots of laws prohibiting minors
from possessing firearms from the founding era through the early
twentieth century and concluded that the challenged law was of a
type historically understood to be consistent with the Second
Amendment. See 583 F.3d 8, 14-16 (1st Cir. 2009). So, too, in
United States v. Booker, we employed a form of means-end scrutiny
to find the law at issue substantially related to an important
governmental interest. See 644 F.3d 12, 25-26 (1st Cir. 2011).
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of the right at the time of ratification." Woollard, 712 F.3d at
875 (quoting Chester, 628 F.3d at 680). After a diligent search
for the answer to this question, we find — as have several of our
sister circuits — that there is no national consensus, rooted in
history, concerning the right to public carriage of firearms. See
Drake, 724 F.3d at 431; Kachalsky, 701 F.3d at 91. The available
guideposts point in conflicting directions and leave the indelible
impression "that states often disagreed as to the scope of the
right to bear arms." Kachalsky, 701 F.3d at 91. Courts that have
found the history conclusive relied primarily on historical data
derived from the antebellum South. See, e.g., Young, 896 F.3d at
1054-57; Wrenn v. District of Columbia, 864 F.3d 650, 660-61 (D.C.
Cir. 2017). But we find it unconvincing to argue that practices
in one region of the country reflect the existence of a national
consensus about the implications of the Second Amendment for public
carriage of firearms. After all, our nation is built upon its
diversity — and there is no principled way that we can assume that
practices in one region are representative of all regions. We
must use a wider-angled lens.
The view through this wider-angled lens tells a
different tale. A comprehensive survey of the historical record
— including the laws of Massachusetts, which "first adopted a good
cause statute in 1836" — reveals that "states and their predecessor
colonies and territories have taken divergent approaches to the
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regulation of firearms." Young, 896 F.3d at 1076, 1078 (Clifton,
J., dissenting).
The short of it is that the national historical inquiry
does not dictate an answer to the question of whether the Boston
and Brookline policies burden conduct falling within the scope of
the Second Amendment. Since we have previously exhibited
considerable hesitancy to extend the Second Amendment right beyond
the home, see Powell, 783 F.3d at 348; Hightower, 693 F.3d at 72
n.8, this phase of our inquiry brings us into uncharted waters.
The Supreme Court's seminal decision in Heller guides
our voyage. The Heller Court left no doubt that the right to bear
arms "for defense of self, family, and property" was "most acute"
inside the home. 554 U.S. at 628. If the right existed solely
within the home, the Court's choice of phrase would have been
peculiar. See Moore v. Madigan, 702 F.3d 933, 935-36 (7th Cir.
2012). So, too, the Heller Court stated that prohibitions on
carrying firearms in "sensitive places" are "presumptively
lawful," 554 U.S. at 626-27 & n.26 — a pronouncement that would
have been completely unnecessary if the Second Amendment right did
not extend beyond the home at all. Reading these tea leaves, we
view Heller as implying that the right to carry a firearm for self-
defense guaranteed by the Second Amendment is not limited to the
home.
- 22 -
Withal, Heller did not supply us with a map to navigate
the scope of the right of public carriage for self-defense. For
example, Heller did not answer whether every citizen has such a
right, or whether (as Boston and Brookline have concluded) the
right is more narrowly circumscribed to those citizens who can
establish an individualized reason to fear injury. In the absence
of such guidance, we decline to parse this distinction today and
proceed on the assumption that the Boston and Brookline policies
burden the Second Amendment right to carry a firearm for self-
defense.
C. Level of Scrutiny.
This conclusion brings into sharp relief the next step
in our inquiry, which requires us to evaluate the challenged
policies under an appropriate level of scrutiny. The plaintiffs
argue that any law regulating the carriage of firearms for self-
defense should be subject to strict scrutiny because the Second
Amendment right is specifically articulated in the Constitution.
This argument bites off more than the plaintiffs reasonably can
expect to chew. Strict scrutiny does not automatically attach to
every right enumerated in the Constitution. See, e.g., Kelo v.
City of New London, 545 U.S. 469, 480 (2005) (refusing to apply
strict scrutiny in Takings Clause context); Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (applying intermediate scrutiny
to content-neutral time, place, and manner restriction challenged
- 23 -
on First Amendment grounds). Even though the Second Amendment
right is fundamental, the plaintiffs have offered us no valid
reason to treat it more deferentially than other important
constitutional rights. Consequently, we decline the plaintiffs'
invitation to take a one-size-fits-all approach to laws that burden
the Second Amendment right to any extent. See NRA, 700 F.3d at
198; see also Heller II, 670 F.3d at 1256 ("The [Supreme] Court
has not said, however, and it does not logically follow, that
strict scrutiny is called for whenever a fundamental right is at
stake.").
In our judgment, the appropriate level of scrutiny must
turn on how closely a particular law or policy approaches the core
of the Second Amendment right and how heavily it burdens that
right. See NRA, 700 F.3d at 195; Ezell, 651 F.3d at 703. A law
or policy that burdens conduct falling within the core of the
Second Amendment requires a correspondingly strict level of
scrutiny, whereas a law or policy that burdens conduct falling
outside the core of the Second Amendment logically requires a less
demanding level of scrutiny.
This gets us to the heart of the matter: whether public
carriage of firearms for self-defense is a core Second Amendment
right? In an earlier case, we identified the core of the Second
Amendment right as "the possession of operative firearms for use
in defense of the home" by responsible, law-abiding individuals.
- 24 -
Hightower, 693 F.3d at 72. We went on to hold "that the interest
. . . in carrying concealed weapons outside the home is distinct
from th[e] core interest emphasized in Heller." Id. As the court
below observed, "[a]lthough Hightower did not consider the
constitutionality of regulating the open carrying of weapons
outside the home, the authority it cited did not distinguish
between [concealed and open carry], suggesting that the operative
distinction [between the core and the periphery of the Second
Amendment] was whether the individual asserted his Second
Amendment right outside or inside the home." Gould, 291 F. Supp.
3d at 169.
We make explicit today what was implicit in Hightower:
that the core Second Amendment right is limited to self-defense in
the home. This holding finds support in a number of out-of-circuit
cases. See, e.g., United States v. Focia, 869 F.3d 1269, 1285
(11th Cir. 2017); Tyler v. Hillsdale Cty. Sheriff's Dep't, 837
F.3d 678, 685 (6th Cir. 2016) (en banc); Drake, 724 F.3d at 436;
Wollard, 712 F.3d at 876; NRA, 700 F.3d at 206; Kachalsky, 701
F.3d at 93; Reese, 627 F.3d at 800.
To be sure, some courts have formulated broader
conceptions of the core of the Second Amendment — conceptions that
include carrying firearms in public for self-defense. See Young,
896 F.3d at 1070; Wrenn, 864 F.3d at 661. Each of these decisions,
though, was reached by a divided panel over a cogent dissent. See
- 25 -
Young, 896 F.3d at 1074 (Clifton, J., dissenting); Wrenn, 864 F.3d
at 668 (Henderson, J., dissenting).
We think that the weight of circuit court authority has
correctly identified the core of the Second Amendment, and our own
precedent fits comfortably within those boundaries. We think,
too, that this configuration of the Second Amendment's core
interest is consistent with Heller, in which the Court declared
that the home is where "the need for defense of self, family, and
property is most acute," such that the Second Amendment "elevates
above all other interests the . . . defense of hearth and home."
554 U.S. at 628, 635; see GeorgiaCarry.Org, Inc. v. Georgia, 687
F.3d 1244, 1259 (11th Cir. 2012) (explaining that the Heller Court
"went to great lengths to emphasize the special place that the
home — an individual's private property — occupies in our
society").
Societal considerations also suggest that the public
carriage of firearms, even for the purpose of self-defense, should
be regarded as falling outside the core of the Second Amendment
right. The home is where families reside, where people keep their
most valuable possessions, and where they are at their most
vulnerable (especially while sleeping at night). Outside the home,
society typically relies on police officers, security guards, and
the watchful eyes of concerned citizens to mitigate threats. This
same panoply of protections is much less effective inside the home.
- 26 -
Police may not be able to respond to calls for help quickly, so an
individual within the four walls of his own house may need to
provide for the protection of himself and his family in case of
emergency. Last — but surely not least — the availability of
firearms inside the home implicates the safety only of those who
live or visit there, not the general public.
Viewed against this backdrop, the right to self-defense
— upon which the plaintiffs rely — is at its zenith inside the
home. This right is plainly more circumscribed outside the home.
"[O]utside the home, firearm rights have always been more limited,
because public safety interests often outweigh individual
interests in self-defense." United States v. Masciandaro, 638
F.3d 458, 470 (4th Cir. 2011). These truths are especially evident
in densely populated urban areas like Boston and Brookline. See
Joseph Blocher, Firearm Localism, 123 Yale L.J. 82, 108 (2013)
(explaining that "American cities have traditionally had much more
stringent gun control than rural areas").
This sort of differentiation is not unique to Second
Amendment rights. Many constitutional rights are virtually
unfettered inside the home but become subject to reasonable
regulation outside the home. See, e.g., Lawrence v. Texas, 539
U.S. 558, 567 (2003); Stanley v. Georgia, 394 U.S. 557, 565 (1969);
see also Payton v. New York, 445 U.S. 573, 596 (1980) (declaring
that "a man's house is his castle").
- 27 -
To sum up, we hold that the core right protected by the
Second Amendment is — as Heller described it — "the right of law-
abiding, responsible citizens to use arms in defense of hearth and
home." 554 U.S. at 635. Public carriage of firearms for self-
defense falls outside the perimeter of this core right.
This holding does not end our journey. Heller left open
— and we have yet to address — what level of scrutiny applies to
laws that burden the periphery of the Second Amendment right but
not its core. For the reasons that follow, we decide today that
intermediate scrutiny supplies the appropriate test.
To begin, our decision in Booker points us toward this
conclusion. There, we applied an unnamed level of scrutiny in
evaluating the constitutionality of a law prohibiting domestic
violence misdemeanants from possessing firearms. See 644 F.3d at
13, 25-26. Although we abjured any label, the standard that we
articulated was indistinguishable from intermediate scrutiny.
Compare id. at 25 (requiring "a substantial relationship between
the restriction and an important governmental objective"), with
Clark v. Jeter, 486 U.S. 456, 461 (1988) (explaining that "[t]o
withstand intermediate scrutiny, a statutory classification must
be substantially related to an important governmental objective").
Other courts have not minced words but, rather, have affixed the
label of "intermediate scrutiny" to the level of scrutiny employed
in Booker. See, e.g., Schrader v. Holder, 704 F.3d 980, 990 (D.C.
- 28 -
Cir. 2013); Kachalsky, 701 F.3d at 93 n.17. Nor have our sister
circuits shied away from a conclusion that intermediate scrutiny
is the appropriate test for evaluating firearms regulations that
burden conduct falling outside the core of the Second Amendment
(including "good reason" laws similar to the Massachusetts
statute). See Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126
(10th Cir. 2015); Drake, 724 F.3d at 435; Woollard, 712 F.3d at
876; Kachalsky, 701 F.3d at 96; NRA, 700 F.3d at 196; Ezell, 651
F.3d at 708; see also Tyler, 837 F.3d at 692 (noting "near
unanimous preference for intermediate scrutiny" in such cases).
Finally, our conclusion that intermediate scrutiny is
appropriate to evaluate firearms regulations that burden rights on
the periphery of the Second Amendment fits comfortably in the
lacuna left by Heller. The Heller Court found that the District
of Columbia's ban on handguns in the home failed under "any of the
standards of scrutiny" historically applied by the Court "to
enumerated constitutional rights." 554 U.S. at 628-29. This
statement implies that there is a role for some level of scrutiny
less rigorous than strict scrutiny. Even so, the Court made clear
that rational basis review would not be sufficient. See id. at
628 n.27.
Here, all roads lead to Rome. Following this roadmap,
we find that a law or policy that restricts the right to carry a
firearm in public for self-defense will withstand a Second
- 29 -
Amendment challenge so long as it survives intermediate scrutiny.
To pass constitutional muster in this case, then, the defendants
must show that the Massachusetts firearms licensing statute, as
implemented by the Boston and Brookline policies, substantially
relates to one or more important governmental interests. It is to
this question that we now turn.
D. Applying Intermediate Scrutiny.
The Massachusetts firearms licensing statute allows (but
does not compel) local licensing authorities to issue licenses to
applicants who "ha[ve] good reason to fear injury to [themselves]
or [their] property." Mass. Gen. Laws ch. 140, § 131(d). It also
allows local licensing authorities to issue licenses "for any other
reason," with such restrictions as those authorities "deem[]
proper." Id. § 131(a), (d). The legislative purpose behind the
statute is twofold: to promote public safety and to prevent crime.
See Chardin v. Police Comm'r of Bos., 989 N.E.2d 392, 403 (Mass.
2013); Commonwealth v. Seay, 383 N.E.2d 828, 833 (Mass. 1978). In
fashioning this regime, Massachusetts endeavored "to prevent the
temptation and the ability to use firearms to inflict harm, be it
negligently or intentionally, on another or on oneself."
Commonwealth v. Lee, 409 N.E.2d 1311, 1315 (Mass. App. Ct. 1980).
It cannot be gainsaid that Massachusetts has compelling
governmental interests in both public safety and crime prevention.
See, e.g., Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357,
- 30 -
376 (1997). In point of fact, few interests are more central to
a state government than protecting the safety and well-being of
its citizens. See United States v. Salerno, 481 U.S. 739, 755
(1987); Watchtower Bible, 634 F.3d at 12; see also United States
v. Morrison, 529 U.S. 598, 618 (2000) ("Indeed, we can think of no
better example of the police power . . . than the suppression of
violent crime . . . ."). Given the obvious importance of the
Commonwealth's governmental interests, the question before us
reduces to whether the "good reason" requirement is substantially
related to those interests.
In answering this question, we start with the premise
that courts ought to give "substantial deference to the predictive
judgments" of a state legislature engaged in the enactment of state
laws. Turner Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180,
195 (1997). This degree of deference forecloses a court from
substituting its own appraisal of the facts for a reasonable
appraisal made by the legislature. See Holder v. Humanitarian Law
Project, 561 U.S. 1, 34 (2010).
We caution, however, that deference should not be
confused with blind allegiance. There must be a fit between the
asserted governmental interests and the means chosen by the
legislature to advance those interests. See Woollard, 712 F.3d at
878. In assessing this fit, a perfect match is not required. See
id. Put another way, a legislature's chosen means need not be
- 31 -
narrowly tailored to achieve its ends: the fit between the
asserted governmental interests and the means chosen by the
legislature to advance them need only be substantial in order to
withstand intermediate scrutiny. See Kachalsky, 701 F.3d at 97;
cf. Booker, 644 F.3d at 26 (upholding law that "substantially
promote[d] an important government interest"). Courts have
described this requirement in various ways. A typical formulation
— with which we agree — describes it as "a reasonable fit . . .
such that the law does not burden more conduct than is reasonably
necessary." Drake, 724 F.3d at 436; see Woollard, 712 F.3d at
878.
Here, the fit between the asserted governmental
interests and the means chosen to advance them is close enough to
pass intermediate scrutiny. The challenged regime does not
infringe at all on the core Second Amendment right of a citizen to
keep arms in his home for the purpose of self-defense. Outside
the home, the regime arguably does burden a citizen's non-core
Second Amendment right. See supra Sections III.B, III.C. But in
allocating this burden, the Massachusetts legislature was
cognizant that firearms can present a threat to public safety.
Striving to strike a balance, the legislature took note that some
individuals might have a heightened need to carry firearms for
self-defense and allowed local licensing authorities to take a
case-by-case approach in deciding whether a particular "applicant
- 32 -
has good reason to fear injury." Mass. Gen. Laws ch. 140, §
131(d). In addition, the legislature made appropriate provisions
for restricted licenses, thus ensuring that individuals may carry
firearms while engaging in hunting, target-shooting, and a host of
other pursuits. Those same protections extend to individuals who
need to carry firearms for work-related reasons.
Nor do the Boston and Brookline policies result in a
total ban on the right to public carriage of firearms. In this
respect, the policies coalesce with the Massachusetts statute to
form a regime that is markedly less restrictive than the regimes
found unconstitutional by the Seventh and Ninth Circuits. The
Illinois ban on public carriage struck down by the Seventh Circuit
did not give the slightest recognition to the heightened need of
some individuals to arm themselves for self-protection, see Moore,
702 F.3d at 940 (noting that "[n]ot even Massachusetts has so flat
a ban as Illinois"), and the Hawaii law struck down by the Ninth
Circuit created a regime under which not a single unrestricted
license for public carriage had ever been issued, see Young, 896
F.3d at 1071 n.21. The Ninth Circuit took pains to distinguish
the Hawaii law from laws in which the "good cause" standard "did
not disguise an effective ban on the public carry of firearms."
Id. at 1072.
The Massachusetts regime is more akin to those regimes
upheld in the Second, Third, and Fourth Circuits. See Drake, 724
- 33 -
F.3d at 428-29, 439-40; Woollard, 712 F.3d at 868-70, 882;
Kachalsky, 701 F.3d at 85-87, 101. Those regimes — like the regime
at issue here — "provided for administrative or judicial review of
any license denial, . . . a safeguard conspicuously absent from
Hawaii's laws." Young, 896 F.3d at 1072.
The sockdolager, of course, is that the defendants have
forged a substantial link between the restrictions imposed on the
public carriage of firearms and the indisputable governmental
interests in public safety and crime prevention. Massachusetts
consistently has one of the lowest rates of gun-related deaths in
the nation, and the Commonwealth attributes this salubrious state
of affairs to its comprehensive firearms licensing regime. To
buttress this point, the defendants have cited several studies
indicating that states with more restrictive licensing schemes for
the public carriage of firearms experience significantly lower
rates of gun-related homicides and other violent crimes. See,
e.g., Cassandra K. Crifasi et al., Association Between Firearm
Laws and Homicide in Urban Counties, 95 J. Urban Health 383 (2018);
Michael Siegel et al., Easiness of Legal Access to Concealed
Firearm Permits and Homicide Rates in the United States, 107 Am.
J. Pub. Health 1923, 1923-29 (2017); John J. Donahue et al., Right-
to-Carry Laws and Violent Crime: A Comprehensive Assessment Using
Panel Data, the LASSO, and a State-Level Synthetic Controls
Analysis, 3, 63 (Nat'l Bureau of Econ. Research, Working Paper No.
- 34 -
23510, 2018). They also cite statistics indicating that gun owners
are more likely to be the victims of gun violence when they carry
their weapons in public. See Charles C. Branas et al.,
Investigating the Link Between Gun Possession and Gun Assault, 99
Amer. J. Pub. Health 2034 (2009). Finally, the defendants have
expressed a credible concern that civilians (even civilians who,
like the plaintiffs, are law-abiding citizens) might miss when
attempting to use a firearm for self-defense on crowded public
streets and, thus, create a deadly risk to innocent bystanders.5
Several other courts of appeals have conducted similar
inquiries and have concluded that "good reason" laws are
substantially related to the promotion of public safety and the
prevention of crime. See Drake, 724 F.3d at 439-40; Woollard, 712
F.3d at 879-80; Kachalsky, 701 F.3d at 98-99; see also Peruta v.
Cty. of San Diego, 824 F.3d 919, 942-45 (9th Cir. 2016) (en banc)
(Graber, J., concurring). Emblematic of these decisions is the
series of conclusions reached by the Fourth Circuit, which found
that such laws "protect[] citizens and inhibit[] crime by . . .
[d]ecreasing the availability of handguns to criminals via theft";
reduce "the likelihood that basic confrontations between
5
In support of this stated concern, the defendants cite a
study finding that highly trained New York City police officers
had an average accuracy rate of only eighteen percent in gunfights.
See Bernard D. Rostker et al., RAND Ctr. on Quality Policing,
Evaluation of the New York City Police Department Firearm Training
and Firearm-Discharge Review Process 14 (2008).
- 35 -
individuals would turn deadly"; deter "the 'potentially tragic
consequences' . . . that can result from the presence of a third
person with a handgun during a confrontation between a police
officer and a criminal suspect"; "[c]urtail[] the presence of
handguns during routine police-citizen encounters"; decrease "the
number of 'handgun sightings' that must be investigated"; and
"[f]aciliat[e] the identification of those persons carrying
handguns who pose a menace." Woollard, 712 F.3d at 879-80
(citations omitted). We agree.
Withal, there are two sides to the story. Fairly viewed,
the defendants' judgments about whether reasonable restrictions on
the public carriage of firearms advance public safety and prevent
crime are plausible, but not infallible. In short, those judgments
are open to legitimate debate.
To this end, the plaintiffs present a profusion of
countervailing studies and articles. Drawing on these materials,
they argue that the increased presence of firearms on public
streets would act as a deterrent to criminals, not as a menace to
public safety. They also laud the perceived benefits attendant to
the defensive use of firearms. See Gary Kleck & Marc Gertz, Armed
Resistance to Crime: The Prevalence and Nature of Self-Defense
With a Gun, 86 J. Crim. L. & Criminology 150, 164 (1995). Several
amici add their voices to the chorus, debating the findings and
- 36 -
credibility of a kaleidoscopic array of studies and articles. Some
support the plaintiffs; others support the defendants.
Taken in the ensemble, the disparate views expressed in
these studies, articles, and other submissions aptly illustrate
that we are dealing with matters of judgment, not with matters of
metaphysical certainty. To a large extent, choosing among these
disparate views is like choosing from a menu at a popular
restaurant: something can be found to suit every palate and the
diner's choice is more likely to reflect her particular taste than
the absolute quality of the dish. In the process of crafting sound
policy, a legislature often must sift through competing strands of
empirical support and make predictive judgments to reach its
conclusions. See Turner Broad. Sys., Inc. v. FCC (Turner I), 512
U.S. 622, 665 (1994) (opinion of Kennedy, J.). This is plainly an
inexact science, and courts must defer to a legislature's choices
among reasonable alternatives. Institutionally, a legislative
body is better equipped than a court to assess the compendium of
data bearing upon a particular issue and to reach predictive
judgments about what those data portend. See Turner II, 520 U.S.
at 195. This is especially true of fraught issues, such as gun
violence: "when it comes to collecting evidence and drawing
factual inferences in this area, 'the lack of competence on the
part of the courts is marked' and respect for the Government's
- 37 -
conclusions is appropriate." Humanitarian Law Project, 561 U.S.
at 34 (quoting Rostker v. Goldberg, 453 U.S. 57, 65 (1981)).
We conclude that this case falls into an area in which
it is the legislature's prerogative — not ours — to weigh the
evidence, choose among conflicting inferences, and make the
necessary policy judgments. In dealing with a complex societal
problem like gun violence, there will almost always be room for
reasonable minds to differ about the optimal solution. It follows,
we think, that a court must grant the legislature flexibility to
select among reasonable alternatives. It would be foolhardy — and
wrong — to demand that the legislature support its policy choices
with an impregnable wall of unanimous empirical studies. Instead,
the court's duty is simply "to assure that, in formulating its
judgments, [the legislature] has drawn reasonable inferences based
on substantial evidence." Turner I, 512 U.S. at 666 (opinion of
Kennedy, J.).
Let us be perfectly clear. The problems associated with
gun violence are grave. Shootings cut short tens of thousands of
American lives each year. Massachusetts has made a reasoned
attempt to reduce the risks of gun violence on public streets: it
has democratically adopted a firearms licensing statute that takes
account of the heightened needs of some individuals to carry
firearms for self-defense and balances those needs against the
- 38 -
demands of public safety. The Boston and Brookline policies fit
seamlessly with these objectives.
To cinch the matter, the defendants have adduced
evidence sufficient to show a substantial relationship between the
challenged regime and important governmental interests. Though
not incontrovertible, this evidence has considerable force — and
the legislature was entitled to rely on it to guide its policy
choices. The upshot is a "measured approach" that "neither bans
public handgun carrying nor allows public carrying by all firearm
owners . . . [leaving] room for public carrying by those citizens
who can demonstrate" good reason to do so. Drake, 724 F.3d at
440. Consequently, we hold that the Massachusetts firearms
licensing statute, as implemented by the Boston and Brookline
policies, passes muster under the Second Amendment.
IV. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the district court's entry of summary judgment in favor
of the defendants.
Affirmed.
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