Worman v. Healey ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1545
DAVID SETH WORMAN; ANTHONY LINDEN; JASON WILLIAM SAWYER; PAUL
NELSON CHAMBERLAIN; GUN OWNERS' ACTION LEAGUE, INC.; ON TARGET
TRAINING, INC.; OVERWATCH OUTPOST,
Plaintiffs, Appellants,
v.
MAURA T. HEALEY, in her official capacity as Attorney General of
the Commonwealth of Massachusetts; DANIEL BENNETT, in his
official capacity as the Secretary of the Executive Office of
Public Safety and Security; KERRY GILPIN, in her official
capacity as Superintendent of the Massachusetts State Police,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
John Parker Sweeney, with whom James Michael Campbell,
Richard Paul Campbell, Campbell Campbell Edwards & Conroy PC, T.
Sky Woodward, James W. Porter, III, Marc A. Nardone, and Bradley
Arant Boult Cummings LLP, were on brief, for appellants.

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
Ilya Shapiro, Trevor Burrus, Matthew Larosiere, Joseph G.S.
Greenlee, and David B. Kopel on brief for Professors of Second
Amendment Law, Cato Institute, Second Amendment Foundation,
Citizens Committee for the Right to Keep and Bear Arms, Jews for
the Preservation of Firearms Ownership, Millennial Policy Center,
and Independence Institute, amici curiae.
Dan M. Peterson, Dan M. Peterson PLLC, C. D. Michel, Sean A.
Brady, Anna M. Barvir, and Michel & Associates, P.C., on brief for
Western States Sheriffs' Association, Law Enforcement Legal
Defense Fund, Law Enforcement Action Network, International
Association of Law Enforcement Firearms Instructors, CRPA
Foundation, International Law Enforcement Educators and Trainers
Association, and Law Enforcement Alliance of America, amici
curiae.
David H. Thompson, Peter A. Patterson, John D. Ohlendorf, and
Cooper & Kirk, PLLC, on brief for National Rifle Association of
America, Inc., amicus curiae.
Julia E. Kobick, Assistant Attorney General, with whom Maura
Healey, Attorney General, William W. Porter and Elizabeth Kaplan,
Assistant Attorneys General, and Gary Klein, Special Assistant
Attorney General, were on brief, for appellees.
Jonathan K. Baum, Mark T. Ciani, Katten Muchin Rosenman LLP,
J. Adams Skaggs, and Hannah Shearer on brief for Giffords Law
Center to Prevent Gun Violence, amicus curiae.
Mariel Goetz, Kimberly A. Mottley, Laura Stafford, and
Proskauer Rose LLP, on brief for Brady Center to Prevent Gun
Violence, amicus curiae.
Edward Notis-McConarty, M. Patrick Moore, Jr., Vanessa A.
Arslanian, and Hemenway & Barnes LLP on brief for Massachusetts
Chiefs of Police Association and Massachusetts Major City Chiefs
of Police Association, amici curiae.
Gurbir S. Grewal, Attorney General of New Jersey, Andrew J.
Bruck, Executive Assistant Attorney General, Jeremy M. Feigenbaum
and Glenn Moramarco, Assistant Attorneys General, Melissa Medoway,
Deputy Attorney General, Xavier Becerra, Attorney General of
California, George Jepsen, Attorney General of Connecticut,
Matthew P. Denn, Attorney General of Delaware, Russell A. Suzuki,
Attorney General of Hawai'i, Tom Miller, Attorney General of Iowa,
Brian E. Frosh, Attorney General of Maryland, Ellen F. Rosenblum,
Attorney General of Oregon, Josh Shapiro, Attorney General of
Pennsylvania, Peter F. Kilmartin, Attorney General of Rhode
Island, Mark R. Herring, Attorney General of Virginia, Thomas J.
Donovan, Jr., Attorney General of Vermont, Robert W. Ferguson,
Attorney General of Washington, Karl A. Racine, Attorney General
for the District of Columbia, on brief for states of New Jersey,
California, Connecticut, Delaware, Hawai'i, Iowa, Maryland,
Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington,
and the District of Columbia, amici curiae.
Eric Tirschwell, William J. Taylor, Jr., Mark Anthony
Frassetto, Deepak Gupta, Jonathan E. Taylor, and Gupta Wessler
PLLC, on brief for Everytown for Gun Safety, amicus curiae.
Albert W. Wallis, Elizabeth A. Ritvo, Tristan G. Axelrod,
Brown Rudnick LLP, Kenneth A. Sweder, and Sweder & Ross LLP, on
brief for Jewish Alliance for Law and Social Action, Greater Boston
Interfaith Organization, Episcopal Diocese of Massachusetts,
Episcopal Diocese of Western Massachusetts, Islamic Society of
Boston, Massachusetts Council of Churches, Union for Reform
Judaism, Central Conference of American Rabbis, Women of Reform
Judaism, and Men of Reform Judaism, amici curiae.
Ben T. Clements and Clements & Pineault, LLP, on brief for
Stop Handgun Violence, MA Coalition to Prevent Gun Violence, and
Massachusetts General Hospital Gun Violence Prevention Coalition,
amici curiae.
James Murray, pro se, on brief for James Murray, amicus
curiae.
April 26, 2019
SELYA, Circuit Judge. This high-profile case involves
a constitutional challenge to a Massachusetts law proscribing the
sale, transfer, and possession of certain semiautomatic assault
weapons and large-capacity magazines (LCMs). See Mass. Gen. Laws
ch. 140, §§ 121, 131M (the Act). The plaintiffs assert that they
have an unfettered Second Amendment right to possess the proscribed
assault weapons and LCMs in their homes for self-defense.1 The
district court granted summary judgment in favor of the defendants
(a phalanx of state officials). See Worman v. Healey, 293 F. Supp.
3d 251, 271 (D. Mass. 2018). Although our reasoning differs in
certain respects from that of the court below, we affirm.
We assume, without deciding, that the proscribed weapons
have some degree of protection under the Second Amendment. We
further assume, again without deciding, that the Act implicates
the core Second Amendment right of self-defense in the home by
law-abiding, responsible individuals. We hold, however, that the
Act's burden on that core right is minimal and, thus, the Act need
only withstand intermediate scrutiny — which it does.
I. BACKGROUND
We start by rehearsing the background and travel of the
case. The Massachusetts legislature modeled the Act on the 1994
1
Throughout this opinion, we use the terms "proscribed
assault weapons and LCMs" and "proscribed weapons" interchangeably
to describe the semiautomatic assault weapons and LCMs targeted by
the Act.
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federal Public Safety and Recreational Firearms Use Protection Act
(the federal regulation), Pub. L. No. 103-322, §§ 110101-06, 108
Stat. 1796, 1996-2010 (1994), which is no longer in effect. The
federal regulation prohibited the manufacture, transfer, and
possession of "semiautomatic assault weapons" and the transfer and
possession of "large capacity ammunition feeding devices." Id.
§§ 110102-03, 108 Stat. at 1996-2000. For purposes of the federal
regulation, the term "semiautomatic assault weapon" was defined to
include nineteen specific models, as well as any semiautomatic
rifle, pistol, or shotgun with two or more combat-style features
or the ability to accept a detachable magazine. Id. § 110102(b),
108 Stat. at 1997-98. The term "large capacity ammunition feeding
device" encompassed any magazine or other feeding device that could
accept more than ten rounds of ammunition. Id. § 110103(b), 108
Stat. at 1999. The federal regulation specifically exempted, inter
alia, assault weapons that were lawfully possessed on the date of
its enactment (September 13, 1994), semiautomatic rifles that
could not hold more than five rounds of ammunition or accept a
detachable magazine holding more than five rounds of ammunition,
and a specific list of "long guns most commonly used in hunting
and recreational sports." H.R. Rep. No. 103-489, at 20 (1994);
see Pub. L. No. 103-322, § 110102(a), 108 Stat. at 1996-97. In
explicating the purpose of the federal regulation, Congress stated
that semiautomatic assault weapons have "a capability for
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lethality — more wounds, more serious, in more victims — far beyond
that of other firearms in general, including other semiautomatic
guns." H.R. Rep. No. 103-489, at 19-20.
Four years after Congress enacted the federal
regulation, the Massachusetts legislature passed a counterpart
statute, which made it a crime to sell, transfer, or possess
semiautomatic assault weapons as defined by the federal
regulation, copies or duplicates of those weapons, and LCMs capable
of holding more than ten rounds of ammunition. See Mass. Gen.
Laws ch. 140, §§ 121, 131M. The Act contained the same exceptions
as the federal regulation, including free passes for weapons
lawfully owned on September 13, 1994, and for sundry automatic
rifles commonly used for hunting and sport. See id.
Congress allowed the federal regulation to expire in
2004, but the Massachusetts legislature struck out in a different
direction and made the Massachusetts assault weapons regulation
permanent that year. In signing the bill into law, then-Governor
Romney declared that semiautomatic assault weapons and LCMs "are
not made for recreation or self-defense. They are instruments of
destruction with the sole purpose of hunting down and killing
people."
We fast-forward to 2016 when the Massachusetts Attorney
General, Maura Healey, issued a public enforcement notice designed
to "provide[] guidance on the identification of weapons that are
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'copies' or 'duplicates' of the enumerated Assault weapons that
are banned under Massachusetts law." Approximately six months
later, the plaintiffs — a diverse group consisting of Massachusetts
firearm owners, prospective firearm owners, firearm dealers, and
a firearm advocacy association — brought suit in the federal
district court, alleging constitutional violations and seeking
declaratory and injunctive relief. They named an array of
defendants including (as relevant here) various state officials in
their representative capacities; claimed that the Act, as
interpreted and enforced by those officials, abridged both the
Second Amendment and the Due Process Clause; and prayed for
declaratory and injunctive relief.
After some procedural skirmishing, not relevant here,
the parties cross-moved for summary judgment. The district court
heard arguments of counsel and reserved decision. The court
subsequently handed down a rescript in which it rejected the
plaintiffs' challenges and explained why it was granting the
defendants' summary judgment motion. See Worman, 293 F. Supp. 3d
at 258-71. This timely appeal ensued. In it, the plaintiffs
challenge only the district court's rejection of their Second
Amendment claims.
II. ANALYSIS
We review the grant of a motion for summary judgment de
novo, taking the facts and all reasonable inferences therefrom to
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the behoof of the non-moving parties (here, the plaintiffs). See
Hightower v. City of Boston, 693 F.3d 61, 70 (1st Cir. 2012);
Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st
Cir. 1999). "We will affirm only if the record reveals 'that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.'" Avery v. Hughes, 661
F.3d 690, 693 (1st Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
This standard applies unabated to appeals — like this one — arising
out of a district court's disposition of cross-motions for summary
judgment. See Blackie v. Maine, 75 F.3d 716, 720-21 (1st Cir.
1996). In applying the standard here, we have the benefit not
only of able briefing by the parties but also of a myriad of
thoughtful amicus briefs (for which we are grateful).
A. The Legal Framework.
The Second Amendment states 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. In a seminal decision, the Supreme Court held
that the Second Amendment protects an individual's right to keep
and bear arms (unconnected to service in the militia). See
District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Two
years later, the Court made pellucid that the Second Amendment
applies to the states through the Fourteenth Amendment. See
McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).
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The law challenged in Heller constituted an "absolute
prohibition of handguns held and used for self-defense in the
home," which (the Court ruled) transgressed the Second Amendment.2
554 U.S. at 635-36. Although the Court did not have occasion to
examine "the full scope of the Second Amendment" right, it
cautioned that the right "is not unlimited." Id. at 626. In
furtherance of this cautionary language, the Court admonished that
"nothing in our opinion should be taken to cast 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. at 626-27. The Court added that the Second Amendment
does not confer "a right to keep and carry any weapon whatsoever
in any manner whatsoever and for whatever purpose." Id. at 626.
We glean from the teachings of Heller that four data
points determine the level of protection, if any, that the Second
2 Although the present plaintiffs attempt to characterize the
Act as an "absolute prohibition" on an entire class of firearms,
that characterization is inapt. The Act applies only to a set of
enumerated semiautomatic assault weapons, to semiautomatic assault
weapons with particular features, and to magazines of a specific
capacity. Seen in this light, the plaintiffs' "absolute
prohibition" argument is circular: essentially, it amounts to a
suggestion that whatever group of weapons a regulation prohibits
may be deemed a "class." By this logic — which we squarely reject
— virtually any regulation could be considered an "absolute
prohibition" of a class of weapons.
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Amendment provides. The first data point involves the person who
is asserting the right; the second data point involves the purpose
for which the right is being asserted; the third data point
involves the place where the right is being asserted; and the
fourth data point involves the type of weapon. Heller's most
meaningful message touches all four data points. Refined to bare
essence, its message is that the Second Amendment "elevates above
all other interests the right of law-abiding, responsible citizens
to use arms in defense of hearth and home." Id. at 635.
As applied here, this message checks off the first three
data points. It is undisputed that the individual plaintiffs are
not prohibited persons but, rather, law-abiding, responsible
citizens. Similarly, it is undisputed that they seek to use the
proscribed assault weapons and LCMs for self-defense. And,
finally, it is undisputed that they seek to effectuate this usage
in their homes. We are, therefore, left to focus on the fourth
data point: the arms proscribed and the extent (if at all) that
those arms are protected by the Second Amendment.
In conducting this inquiry, we do not write on an
entirely pristine page. Our recent decision in Gould v. Morgan
mapped out a two-step approach for analyzing Second Amendment
challenges. See 907 F.3d 659, 668-69 (1st Cir. 2018), petition
for cert. filed, ___ U.S.L.W. ___ (U.S. April 1, 2019) (No. 18-
1272). Under this approach, we first ask whether the challenged
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law burdens conduct that is protected by the Second Amendment.
See id. This inquiry is "backward-looking" and "seeks to determine
whether the regulated conduct 'was understood to be within the
scope of the right at the time of ratification.'" Id. at 669
(quoting United States v. Chester, 628 F.3d 673, 680 (4th Cir.
2010)). If that step is successfully negotiated so we can say
that the challenged law "burdens conduct falling within the scope
of the Second Amendment, [we] then must determine what level of
scrutiny is appropriate and must proceed to decide whether the
challenged law survives that level of scrutiny." Id. We follow
this approach in determining whether the Act withstands the
plaintiffs' Second Amendment onslaught.
B. The Scope of the Second Amendment Right.
This brings us to the question of whether the conduct
restricted by the Act falls under the protective carapace of the
Second Amendment. To answer this question, we must determine
whether possession of the proscribed assault weapons and LCMs in
the home for self-defense is safeguarded by the Second Amendment.3
3
One of the amici advances the clever argument that LCMs,
like other magazines, are not "arms" at all because they are not
themselves "[w]eapons of offense, or armour of defence." Heller,
554 U.S. at 581 (alteration in original) (quoting 1 Dictionary of
the English Language 106 (4th ed.) (reprinted 1978)). The
defendants, though, have not proffered such an argument. We
ordinarily refuse to entertain arguments advanced by amici but not
by the parties, see, e.g., In re Sony BMG Music Entm't, 564 F.3d
1, 3 (1st Cir. 2009); Lane v. First Nat'l Bank of Bos., 871 F.2d
166, 175 (1st Cir. 1989), and we see no reason to depart from that
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Our first task is to consider whether the proscribed
weapons are the type of arms "understood to be within the scope of
the [Second Amendment] right at the time of ratification." Id.
(quoting Chester, 628 F.3d at 680). Heller is the beacon by which
we must steer. There, the Court explained that "[t]he traditional
militia was formed from a pool of men bringing arms 'in common use
at the time' for lawful purposes like self-defense." 554 U.S. at
624 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)).4
The Court's earlier decision in Miller (which held that a short-
barreled shotgun was not protected by the Second Amendment)
furnishes further context. See 307 U.S. at 175-83. There, the
Court surveyed state laws regulating militias at the time of the
founding and explained that many states, including Massachusetts,
had specified the types of weapons that citizens were required to
bring to militia service. See id. at 180-82. The Court concluded
prudential principle here. We note, moreover, that the parties do
not argue that the Second Amendment analysis differs with respect
to LCMs as opposed to semiautomatic assault weapons, and so we
consider both objects of the Act together.
4 Here, however, there is a wrinkle. Because the plaintiffs'
challenge is directed at a state statute, Gould points to 1868
(when the Fourteenth Amendment was ratified) as the date for any
necessary historical inquiry. See 907 F.3d at 669. Heller, in
contrast, does not deal with a state law and thus locates the
benchmark at 1791 (the date of ratification of the Constitution
itself). Since no party here has argued that this distinction is
either material or sufficient to render Heller's analysis
inoperative, we need not parse this distinction as "our conclusion
with respect to the historical record would be the same regardless
of which ratification date was used." Id. at 669 n.3.
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that although "[m]ost if not all of the States have adopted
provisions touching the right to keep and bear arms," id. at 182,
none has suggested that a short-barreled shotgun was the type of
weapon that "could contribute to the common defense," id. at 178.
With this historical background in place, the Heller Court
determined that the Second Amendment "extends only to certain types
of weapons." 554 U.S. at 623. One corollary of this determination
is that an "important limitation on the right to keep and carry
arms" is that "the sorts of weapons protected were those 'in common
use at the time.'" Id. at 627 (quoting Miller, 307 U.S. at 179).
The Court added that such a "limitation is fairly supported by the
historical tradition of prohibiting the carrying of 'dangerous and
unusual weapons.'" Id. (citing 4 William Blackstone, Commentaries
on the Laws of England 148-49 (1769)); see id. at 623 (referencing
"the prohibition on terrorizing people with dangerous or unusual
weapons").
That the proscribed weapons were not in existence, let
alone in common use, at the time of ratification, does not end the
matter. Heller left no doubt that "the Second Amendment extends,
prima facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the founding."
Id. at 582. The Court reaffirmed this principle some eight years
later, when it reversed a decision of the Massachusetts Supreme
Judicial Court (SJC), which had held that stun guns were not
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protected by the Second Amendment. See Caetano v. Massachusetts,
136 S. Ct. 1027, 1027-28 (2016) (per curiam). Pertinently, the
Caetano Court debunked the notion that stun guns were unprotected
because they "were not in common use at the time of the Second
Amendment's enactment," id. at 1027 (quoting Commonwealth v.
Caetano, 26 N.E.3d 688, 693 (Mass. 2015)), finding that notion
"inconsistent with Heller's clear statement that the Second
Amendment 'extends . . . to . . . arms that were not in existence
at the time of the founding,'" id. at 1028 (alteration in original)
(quoting Heller, 554 U.S. at 582); see id. (rejecting conclusion
"that stun guns are 'unusual' because they are 'a thoroughly modern
invention'" (quoting Caetano, 26 N.E.3d at 693-94)).
Relatedly, the Heller Court acknowledged that "if
weapons that are most useful in military service — M-16 rifles and
the like — may be banned," it might be argued that "the Second
Amendment right is completely detached from the prefatory clause."
554 U.S. at 627. After all, militias today "require sophisticated
arms that are highly unusual in society at large." Id. But the
Court pointed out that "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." Id. Thus,
"the fact that modern developments have limited the degree of fit
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between the prefatory clause and the protected right cannot change
[judicial] interpretation of the right." Id. at 627-28.
Viewed against this backdrop, the relevant question is
neither whether the proscribed weapons were commonly used at the
time of ratification nor whether they are among the types of
weapons used by today's militias. Instead, the question is whether
the proscribed weapons are in common use for lawful purposes like
self-defense.
As to this question, Heller provides only meager
guidance. Heller made plain that handguns, which the Court
described as "the most popular weapon chosen by Americans for self-
defense in the home," are protected. Id. at 629. Conversely,
"the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns." Id. at 625. But as to the middle ground
— and particularly, as to how to plot the dividing line between
common and uncommon use — the Court was silent.5
5 We agree with the Seventh Circuit that measuring "common
use" by the sheer number of weapons lawfully owned is somewhat
illogical. See Friedman v. City of Highland Park, 784 F.3d 406,
409 (7th Cir. 2015) ("Machine guns aren't commonly owned for lawful
purposes today because they are illegal; semi-automatic weapons
with large-capacity magazines are owned more commonly because,
until recently (in some jurisdictions), they have been legal. Yet
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.").
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The parties strive mightily to fill this void. On the
one hand, the plaintiffs have shown that, as of 2013, nearly
5,000,000 people owned at least one semiautomatic assault weapon.
They also have shown that between 1990 and 2015, Americans owned
approximately 115,000,000 LCMs. On the other hand, the defendants
have shown that only three percent of guns in the United States
are assault weapons and only one percent of Americans own such a
weapon. In all events, the record evidence is sparse as to actual
use of any of the proscribed weapons or LCMs for self-defense in
the home.
The district court avoided this question entirely. It
abjured the "in common use" test, concluding that "Heller . . .
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?"
Worman, 293 F. Supp. 3d at 264 (quoting Kolbe v. Hogan, 849 F.3d
114, 136 (4th Cir.) (en banc), cert. denied, 138 S. Ct. 469
(2017)). The court went on to find that the proscribed weapons
fit within this taxonomy, noting by way of example that one of the
proscribed weapons (the Colt AR-15) is virtually identical to the
M-16 (save for the fact that the AR-15 does not allow for fully
automatic fire). See id. at 264-66. The plaintiffs argue that
this approach is doubly flawed: they calumnize both the district
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court's conclusion that "weapons that are most useful in military
service" are excepted from Second Amendment coverage and its
determination that the proscribed weapons are "like" "M-16
rifles."
Mindful that "[d]iscretion is often the better part of
valor," United States v. Gonzalez, 736 F.3d 40, 40 (1st Cir. 2013),
we are reluctant to plunge into this factbound morass. In the
end, "courts should not rush to decide unsettled issues when the
exigencies of a particular case do not require such definitive
measures." Privitera v. Curran (In re Curran), 855 F.3d 19, 22
(1st Cir. 2017). For present purposes, we simply assume, albeit
without deciding, that the Act burdens conduct that falls somewhere
within the compass of the Second Amendment.
C. The Level of Scrutiny.
The next phase of our inquiry "requires us to evaluate
the [Act] under an appropriate level of scrutiny." Gould, 907
F.3d at 670. The appropriate level of scrutiny "turn[s] on how
closely a particular law or policy approaches the core of the
Second Amendment right and how heavily it burdens that right."
Id. at 670-71. We previously established "that the core Second
Amendment right is limited to self-defense in the home" on the
part of "responsible, law-abiding individuals." Id. at 671. Given
this understanding, we concluded that the law challenged in Gould
(which concerned public carriage of firearms) fell outside the
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core of the Second Amendment right. See id. at 672. In contrast
to the plaintiffs in Gould, the present plaintiffs contend that
the Act affects their ability to defend themselves in their homes.
Assuming (favorably to the plaintiffs) that the Act implicates the
core of the Second Amendment right, we must train the lens of our
inquiry on "how heavily it burdens that right." Id. at 671.
As is true in many Second Amendment inquiries, our
starting point is Heller. There, the Court unequivocally rebuffed
the argument "that it is permissible to ban the possession of
handguns so long as the possession of other firearms (i.e., long
guns) is allowed." 544 U.S. at 629. The Court's rationale was
based on the premise that "the American people have considered the
handgun to be the quintessential self-defense weapon." Id. In
fashioning this rationale, the Court repeatedly emphasized the
unique popularity of the handgun as a means of self-defense. See
id. at 628 (calling handguns a "class of 'arms' . . .
overwhelmingly chosen by American society for [self-defense]");
id. at 628-29 (identifying the handgun as "the most preferred
firearm in the nation to 'keep' and use for protection of one's
home and family"); id. at 629 (declaring that "handguns are the
most popular weapon chosen by Americans for self-defense in the
home"). Building on this foundation, the Court made clear that
banning this quintessential self-defense weapon would heavily
burden the core right of self-defense in the home. See id. at
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629; see also id. at 632 (describing eighteenth-century gunpowder
storage laws and noting that such laws did "not remotely burden
the right of self-defense as much as an absolute ban on handguns").
This same logic leads us to conclude that the Act's
restriction on semiautomatic assault weapons and LCMs does not
heavily burden the core right of self-defense in the home. As an
initial matter, the Act does not ban all semiautomatic weapons and
magazines. Instead, it proscribes only a set of specifically
enumerated semiautomatic assault weapons, magazines of a
particular capacity, and semiautomatic assault weapons that have
certain combat-style features. Furthermore, the record shows that
semiautomatic assault weapons do not share the features that make
handguns well-suited to self-defense in the home. Cf. id. at 629
(explaining that "a citizen may prefer a handgun for home defense"
because, inter alia, "[i]t is easier to store in a location that
is readily accessible in an emergency; it cannot easily be
redirected or wrestled away by an attacker; it is easier to use
for those without the upper-body strength to lift and aim a long
gun; it can be pointed at a burglar with one hand while the other
hand dials the police"). Equally as important is what the record
does not show: it offers no indication that the proscribed weapons
have commonly been used for home self-defense purposes. In fact,
when asked directly, not one of the plaintiffs or their six experts
could identify even a single example of the use of an assault
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weapon for home self-defense, nor could they identify even a single
example of a self-defense episode in which ten or more shots were
fired. Viewed as a whole, the record suggests that wielding the
proscribed weapons for self-defense within the home is tantamount
to using a sledgehammer to crack open the shell of a peanut. Thus,
we conclude that the Act does not heavily burden the core Second
Amendment right of self-defense within the home.
This conclusion fits seamlessly with our decision in
Hightower. Although that opinion did not directly address what
restrictions may be deemed to heavily burden the core Second
Amendment right, we stated that the fact that the plaintiff sought
a license that "allowed carrying of large capacity weapons
weaken[ed] the Second Amendment claim, as [Heller] was concerned
with weapons of the type characteristically used to protect the
home." Hightower, 693 F.3d at 71 (holding that revocation of
license to carry concealed, large-capacity firearm based on false
statements in renewal application did not violate Second
Amendment). So, too, our conclusion is reinforced by the fact
that — unlike the use of handguns — the use of semiautomatic
assault weapons, even in the home, does not "implicate[] the safety
only of those who live or visit there." Gould, 907 F.3d at 672.
Rather, the use of semiautomatic assault weapons implicates the
safety of the public at large. After all, such weapons can fire
through walls, risking the lives of those in nearby apartments or
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on the street. Cf. Kolbe, 849 F.3d at 127 (observing that "rounds
from assault weapons have the ability to easily penetrate most
materials used in standard home construction, car doors, and
similar materials").
We have yet to consider what level of scrutiny applies
to a law that implicates the core of the Second Amendment right,
but does not "heavily . . . burden[] that right." Gould, 907 F.3d
at 671. Heller does state that a handgun ban would "fail
constitutional muster" under "any of the standards of scrutiny
that [the Court has] applied to enumerated constitutional rights."
554 U.S. at 628-29. But we do not read Heller to suggest that a
regulation of arms that only modestly burdens the core Second
Amendment right must be subject to the strictest form of
constitutional review. See Gould, 900 F.3d at 673 ("The Heller
Court . . . implie[d] that there is a role for some level of
scrutiny less rigorous than strict scrutiny."); see also Ezell v.
City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011) ("[A] severe
burden on the core Second Amendment right of armed self-defense
will require an extremely strong public-interest justification and
a close fit between the government's means and its end. . . .
[L]aws that merely regulate rather than restrict, and modest
burdens on the right may be more easily justified.").
In our view, intermediate scrutiny is appropriate as
long as a challenged regulation either fails to implicate the core
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Second Amendment right or fails to impose a substantial burden on
that right. See Fyock v. Sunnyvale, 779 F.3d 991, 998-99 (9th
Cir. 2015). It follows that intermediate scrutiny is the
appropriate level of scrutiny for evaluating a law — like the Act
— that arguably implicates the core Second Amendment right to self-
defense in the home but places only a modest burden on that right.
This holding aligns us with a number of our sister circuits, which
have applied intermediate scrutiny to laws restricting
semiautomatic assault weapons and LCMs. See, e.g., Ass'n of N.J.
Rifle & Pistol Clubs v. Att'y Gen. N.J., 910 F.3d 106, 117 (3d
Cir. 2018) (applying intermediate scrutiny because "[t]he Act here
does not severely burden the core Second Amendment right to self-
defense in the home"); Kolbe, 849 F.3d at 134 (applying
intermediate scrutiny because challenged law did "not seriously
impact a person's ability to defend himself in the home" (internal
quotation marks omitted)); N.Y. State Rifle & Pistol Ass'n v.
Cuomo, 804 F.3d 242, 260 (2d Cir. 2015) (applying intermediate
scrutiny because "[t]he burden imposed by the challenged
legislation is real, but . . . not 'severe'"); Heller v. District
of Columbia (Heller II), 670 F.3d 1244, 1262 (D.C. Cir. 2011)
(applying intermediate scrutiny because challenged prohibition did
not "substantially affect" individuals' right of self-defense).6
6
After we heard oral argument in this case, the Illinois
Supreme Court held that a law prohibiting the carrying of tasers
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Consequently, we proceed to apply intermediate scrutiny to
determine whether the Act passes constitutional muster.
D. Applying Intermediate Scrutiny.
To survive intermediate scrutiny, a statute "must be
substantially related to an important governmental objective."
Gould, 907 F.3d at 672 (quoting Clark v. Jeter, 486 U.S. 456, 461
(1988)). To achieve this substantial relationship, there must be
a "reasonable fit" between the restrictions imposed by the law and
the government's valid objectives, "such that the law does not
burden more conduct than is reasonably necessary." Id. at 674
(quoting Drake v. Filko, 724 F.3d 426, 436 (3d Cir. 2013)).
The law that the plaintiffs challenge here — the Act —
restricts the sale, transfer, and possession of certain
semiautomatic assault weapons and LCMs. See Mass. Gen. Laws ch.
140, §§ 121, 131M. It does not ban the sale, transfer, or
possession of all semiautomatic weapons, nor does it impose any
restrictions on magazines that are designed to hold ten rounds or
and stun guns was a "categorical ban" and, thus, was "facially
unconstitutional under the [S]econd [A]mendment." Illinois v.
Webb, ___ N.E. 3d ___, ___ (Ill. 2019) [2019 WL 1291586 at *5].
The plaintiffs notified us of this decision pursuant to Federal
Rule of Appellate Procedure 28(j), asserting that it "provides
further support for [their] argument that a categorical ban on
bearable arms that are commonly kept for lawful purposes is per se
unconstitutional." We reject the plaintiffs' premise that the Act
is a categorical ban, see supra note 2, and disagree with the
Illinois Supreme Court's conclusion that any law that restricts a
certain type of arms is per se unconstitutional.
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fewer. The Act's manifest purpose is to "help keep the streets
and neighborhoods of Massachusetts safe" by "mak[ing] it harder
for criminals to get their hands on these dangerous guns."
We have said before, and today reaffirm, that "few
interests are more central to a state government than protecting
the safety and well-being of its citizens." Gould, 907 F.3d at
673. Since Massachusetts indubitably "has compelling governmental
interests in both public safety and crime prevention," id., the
only question that remains is whether the Act is substantially
related to those interests. The answer to this question depends
on whether the fit between those interests and the Act is
reasonable. See id. at 674.
In our view, the Act survives under intermediate
scrutiny. This view comports with the unanimous weight of circuit-
court authority analyzing Second Amendment challenges to similar
laws. See, e.g., Ass'n of N.J. Rifle & Pistol Clubs, 910 F.3d at
122; Kolbe, 849 F.3d at 139; N.Y. State Rifle & Pistol Ass'n, 804
F.3d at 261; Heller II, 670 F.3d at 1262.
The record contains ample evidence of the unique dangers
posed by the proscribed weapons. Semiautomatic assault weapons
permit a shooter to fire multiple rounds very quickly, allowing
him to hit more victims in a shorter period of time. LCMs
exacerbate this danger, allowing the shooter to fire more bullets
without stopping to reload. Cf. Heller II, 670 F.3d at 1264
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(noting that "the 2 or 3 second pause during which a criminal
reloads his firearm can be of critical benefit to law enforcement"
(internal quotation marks omitted)). It is, therefore, not
surprising that AR-15s equipped with LCMs have been the weapons of
choice in many of the deadliest mass shootings in recent history,
including horrific events in Pittsburgh (2018), Parkland (2018),
Las Vegas (2017), Sutherland Springs (2017), Orlando (2016),
Newtown (2012), and Aurora (2012).
The record also contains the affidavit of a seasoned
trauma surgeon, who has treated victims of several mass shootings.
This affidavit confirms what common sense suggests: semiautomatic
assault weapons cause wounds that "tend to be higher in complexity
with higher complication rates than those injuries from non-
assault weapons. They tend to cause far greater damage to the
muscles, bones, soft tissue, and vital organs." Cf. Panagiotis K.
Stefanopoulos, et al., Gunshot Wounds: A Review of Ballistics
Related to Penetrating Trauma, 3 J. Acute Disease 178, 181-82
(2014). A number of articles, written by physicians who have cared
for assault-weapon victims, substantiate the extreme damage that
such weapons are prone to cause. See, e.g., Gina Kolata & C.J.
Chivers, Wounds from Military-Style Rifles? 'A Ghastly Thing to
See', N.Y. Times (Mar. 4, 2018),
https://www.nytimes.com/2018/03/04/health/parkland-shooting-
victims-ar15.html ("The tissue destruction is almost unimaginable.
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Bones are exploded, soft tissue is absolutely destroyed. The
injuries to the chest or abdomen — it's like a bomb went off.");
Tim Craig et al., As the Wounded Kept Coming, Hospitals Dealt with
Injuries Rarely Seen in U.S., Wash. Post (Oct. 3, 2017),
https://www.washingtonpost.com/national/health-science/as-the-
wounded-kept-coming-hospitals-dealt-with-injuries-rarely-seen-
in-the-us/2017/10/03/06210b86-a883-11e7-b3aa-
c0e2e1d41e38_story.html?utm_term=.5a659eec267b ("If a 9mm bullet
strikes someone in the liver . . . that person might suffer a wound
perhaps an inch wide, . . . [b]ut if you're struck in the liver
with an AR-15, it would be like dropping a watermelon onto the
cement. It just is disintegrated." (internal quotation marks
omitted)).
The defendants proffered evidence that the majority of
individuals who have perpetrated mass shootings obtain their semi-
automatic assault weapons legally. See, e.g., Larry Buchanan et
al., How They Got Their Guns, N.Y. Times (updated Feb. 16, 2018),
https://www.nytimes.com/interactive/2015/10/03/us/how-mass-
shooters-got-their-guns.html; Mayors Against Illegal Guns,
Analysis of Recent Mass Shootings (2013). This evidence lends
support to the legislature's conclusion that a law proscribing
semiautomatic assault weapons and LCMs — like the Act — will help
curtail outbreaks of mass violence.
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The plaintiffs do not dispute the extensive evidence
regarding the lethality of the proscribed weapons and the frequency
of their use in mass shootings. Instead, they argue that "[e]ven
assuming the [Act] may curb criminal misuse of the Banned Firearms
and Magazines," the Act fails intermediate scrutiny because it
"make[s] no exception for law-abiding, responsible citizens to
keep these arms for lawful purposes like self-defense in the home."
According to the plaintiffs, the forbidden assault weapons and
LCMs are "ideal" for domestic self-defense for many of the same
reasons that such weapons are ideal for mass shootings — they are
easier to hold and shoot, require less user accuracy, and allow a
shooter to fire many times without reloading. Thus, the plaintiffs
assert, any regulation prohibiting law-abiding, responsible
citizens from possessing such weapons sweeps too broadly.
This assertion is too facile by half, and we reject it.
Although we acknowledge that "[i]n dealing with a complex societal
problem like gun violence, there will almost always be room for
reasonable minds to differ about the optimal solution," Gould, 907
F.3d at 676, the plaintiffs give unduly short shrift to "the
legislature's prerogative . . . to weigh the evidence, choose among
conflicting inferences, and make the necessary policy judgments,"
id. The role of a reviewing court is limited to ensuring "that,
in formulating its judgments, [the legislature] has drawn
reasonable inferences based on substantial evidence," id.
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(alteration in original) (quoting Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 666 (1994) (opinion of Kennedy, J.)), and that "the
fit between the asserted governmental interests and the means
chosen to advance them is close enough to pass intermediate
scrutiny," id. at 674.
Here, the Massachusetts legislature's conclusion that
the Commonwealth's legitimate interests are best served by
proscribing semiautomatic assault weapons and LCMs rests on
substantial (although not incontrovertible) evidence regarding the
inordinate dangers associated with the proscribed weapons. What
is more, it strains credulity to argue that the fit between the
Act and the asserted governmental interest is unreasonable. As we
have said, the Act does not outlaw all semiautomatic firearms and
magazines. Nor does it circumscribe in any way the fundamental
right of law-abiding, responsible citizens to possess handguns in
their homes for self-defense. Accordingly, we hold that although
the Act may well "touch[] the right to keep and bear arms," Miller,
307 U.S. at 182, it does not impermissibly intrude upon that right
because it withstands intermediate scrutiny.
III. CONCLUSION
This case concerns an issue of paramount importance. In
the wake of increasingly frequent acts of mass violence committed
with semiautomatic assault weapons and LCMs, the interests of state
and local governments in regulating the possession and use of such
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weapons are entitled to great weight. Even so, we recognize that
such interests must be balanced against the time-honored right of
individuals to bear arms in self-defense — a right that is
protected in varying degrees by the Second Amendment.
Holding this delicate balance steady and true is
difficult but necessary work. Here, we find that even if the Act
implicates the core of the Second Amendment right, it (at most)
minimally burdens that right. Consequently, we are obliged to
cede some degree of deference to the decision of the Massachusetts
legislature about how best to regulate the possession and use of
the proscribed weapons.
In this instance, that decision rests on a web of
compelling governmental interests, and the fit between those
interests and the restrictions imposed by the Act is both close
and reasonable. It follows that the Act withstands intermediate
scrutiny — and no more is exigible to blunt the plaintiffs' Second
Amendment challenge.
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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