Stephen Kolbe v. Lawrence Hogan, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1945
STEPHEN V. KOLBE; ANDREW C. TURNER; WINK'S SPORTING GOODS,
INCORPORATED; ATLANTIC GUNS, INCORPORATED; ASSOCIATED GUN
CLUBS OF BALTIMORE, INCORPORATED; MARYLAND SHALL ISSUE,
INCORPORATED; MARYLAND STATE RIFLE AND PISTOL ASSOCIATION,
INCORPORATED; NATIONAL SHOOTING SPORTS FOUNDATION,
INCORPORATED; MARYLAND LICENSED FIREARMS DEALERS
ASSOCIATION, INCORPORATED,
Plaintiffs - Appellants,
and
SHAWN J. TARDY; MATTHEW GODWIN,
Plaintiffs,
v.
LAWRENCE J. HOGAN, JR., in his official capacity as Governor
of the State of Maryland; BRIAN E. FROSH, in his official
capacity as Attorney General of the State of Maryland;
COLONEL WILLIAM M. PALLOZZI, in his official capacity as
Secretary of the Department of State Police and
Superintendent of the Maryland State Police; MARYLAND STATE
POLICE,
Defendants - Appellees.
------------------------------
STATE OF WEST VIRGINIA: STATE OF ALABAMA; STATE OF ALASKA;
STATE OF ARIZONA; STATE OF FLORIDA; STATE OF IDAHO; STATE OF
KANSAS; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF
MISSOURI; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NEW
MEXICO; STATE OF NORTH DAKOTA; STATE OF OKLAHOMA; STATE OF
SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE
OF UTAH; STATE OF WYOMING; COMMONWEALTH OF KENTUCKY;
TRADITIONALIST YOUTH NETWORK, LLC; NATIONAL RIFLE
ASSOCIATION OF AMERICA; CRPA FOUNDATION; GUN OWNERS OF
CALIFORNIA; COLORADO STATE SHOOTING ASSOCIATION; IDAHO STATE
RIFLE & PISTOL ASSOCIATION; ILLINOIS STATE RIFLE
ASSOCIATION; KANSAS STATE RIFLE ASSOCIATION; LEAGUE OF
KENTUCKY SPORTSMEN, INC.; NEVADA FIREARMS COALITION;
ASSOCIATION OF NEW JERSEY RIFLE & PISTOL CLUBS; NEW MEXICO
SHOOTING SPORTS ASSOCIATION; NEW YORK RIFLE & PISTOL
ASSOCIATION; TEXAS STATE RIFLE ASSOCIATION; VERMONT
FEDERATION OF SPORTSMAN'S CLUBS; VERMONT RIFLE & PISTOL
ASSOCIATION; GUN OWNERS OF AMERICA, INC.; GUN OWNERS
FOUNDATION; U.S. JUSTICE FOUNDATION; THE LINCOLN INSTITUTE
FOR RESEARCH AND EDUCATION; THE ABRAHAM LINCOLN FOUNDATION
FOR PUBLIC POLICY RESEARCH, INC.; CONSERVATIVE LEGAL DEFENSE
AND EDUCATION FUND; INSTITUTE ON THE CONSTITUTION; CONGRESS
OF RACIAL EQUALITY; NATIONAL CENTER FOR PUBLIC POLICY
RESEARCH; PROJECT 21; PINK PISTOLS; WOMEN AGAINST GUN
CONTROL; THE DISABLED SPORTSMEN OF NORTH AMERICA; LAW
ENFORCEMENT LEGAL DEFENSE FUND; LAW ENFORCEMENT ACTION
NETWORK; LAW ENFORCEMENT ALLIANCE OF AMERICA; INTERNATIONAL
LAW ENFORCEMENT EDUCATORS AND TRAINERS ASSOCIATION; WESTERN
STATES SHERIFFS' ASSOCIATION,
Amici Supporting Appellants,
LAW CENTER TO PREVENT GUN VIOLENCE; MARYLANDERS TO PREVENT
GUN VIOLENCE, INCORPORATED; BRADY CENTER TO PREVENT GUN
VIOLENCE; STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF
CONNECTICUT; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF
IOWA; STATE OF MASSACHUSETTS; STATE OF OREGON; DISTRICT OF
COLUMBIA,
Amici Supporting Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:13-cv-02841-CCB)
Argued: March 25, 2015 Decided: February 4, 2016
Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.
2
Affirmed in part, vacated in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion for the court as
to Parts I, II, III, V, and VI, in which Judge Agee joined.
Judge Agee wrote separately as to Part IV. Judge King wrote an
opinion dissenting as to Part III and concurring in the judgment
as to Parts IV and V. Chief Judge Traxler wrote a dissenting
opinion as to Part IV.
ARGUED: John Parker Sweeney, BRADLEY ARANT BOULT CUMMINGS LLP,
Washington, D.C., for Appellants. Matthew John Fader, OFFICE OF
THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. ON BRIEF: T. Sky Woodward, James W. Porter, III,
Marc A. Nardone, BRADLEY ARANT BOULT CUMMINGS LLP, Washington,
D.C., for Appellants. Douglas F. Gansler, Attorney General of
Maryland, Jennifer L. Katz, Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston,
Michigan; Jason Van Dyke, THE VAN DYKE LAW FIRM, PLLC, Plano,
Texas, for Amicus Traditionalist Youth Network, LLC. Patrick
Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie
Marie Blake, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus
State of West Virginia; Luther Strange, Attorney General of
Alabama, Montgomery, Alabama, for Amicus State of Alabama;
Michael C. Geraghty, Attorney General of Alaska, Juneau, Alaska,
for Amicus State of Alaska; Thomas C. Horne, Attorney General of
Arizona, Phoenix, Arizona, for Amicus State of Arizona; Pam
Bondi, Attorney General of Florida, Tallahassee, Florida, for
Amicus State of Florida; Lawrence G. Wasden, Attorney General of
Idaho, Boise, Idaho, for Amicus State of Idaho; Derek Schmidt,
Attorney General of Kansas, Topeka, Kansas, for Amicus State of
Kansas; James D. Caldwell, Attorney General of Louisiana, Baton
Rouge, Louisiana, for Amicus State of Louisiana; Bill Schuette,
Attorney General of Michigan, Lansing, Michigan, for Amicus
State of Michigan; Chris Koster, Attorney General of Missouri,
Jefferson City, Missouri, for Amicus State of Missouri; Timothy
C. Fox, Attorney General of Montana, Helena, Montana, for Amicus
State of Montana; Jon Bruning, Attorney General of Nebraska,
Lincoln, Nebraska, for Amicus State of Nebraska; Gary King,
Attorney General of New Mexico, Santa Fe, New Mexico, for Amicus
State of New Mexico; Wayne Stenehjem, Attorney General of North
Dakota, Bismarck, North Dakota, for Amicus State of North
Dakota; E. Scott Pruitt Attorney General of Oklahoma, Oklahoma
City, Oklahoma, for Amicus State of Oklahoma; Alan Wilson,
Attorney General of South Carolina, Columbia, South Carolina,
for Amicus State of South Carolina; Martin J. Jackley, Attorney
3
General of South Dakota, Pierre, South Dakota, for Amicus State
of South Dakota; Greg Abbott, Attorney General of Texas, Austin,
Texas, for Amicus State of Texas; Sean Reyes, Attorney General
of Utah, Salt Lake City, Utah, for Amicus State of Utah; Peter
K. Michael, Attorney General of Wyoming, Cheyenne, Wyoming, for
Amicus State of Wyoming; Jack Conway, Attorney General of
Kentucky, Frankfort, Kentucky, for Amicus Commonwealth of
Kentucky. Charles J. Cooper, David H. Thompson, Peter A.
Patterson, COOPER & KIRK, PLLC, Washington, D.C., for Amicus
National Rifle Association of America, Inc. C.D. Michel,
Clinton B. Monfort, Anna M. Barvir, MICHEL & ASSOCIATES, P.C.,
Long Beach, California, for Amici CRPA Foundation, Gun Owners of
California, Colorado State Shooting Association, Idaho State
Rifle & Pistol Association, Illinois State Rifle Association,
Kansas State Rifle Association, League of Kentucky Sportsmen,
Inc., Nevada Firearms Coalition, Association of New Jersey Rifle
& Pistol Clubs, New Mexico Shooting Sports Association, New York
State Rifle & Pistol Association, Texas State Rifle Association,
Vermont Federation of Sportsmen's Clubs, and Vermont Rifle &
Pistol Association. Michael Connelly, U.S. JUSTICE FOUNDATION,
Ramona, California, for Amicus U.S. Justice Foundation; Robert
J. Olson, Herbert W. Titus, William J. Olson, John S. Miles,
Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia,
for Amici Gun Owners of America, Inc., Gun Owners Foundation,
U.S. Justice Foundation, The Lincoln Institute for Research and
Education, The Abraham Lincoln Foundation for Public Policy
Research, Inc., Conservative Legal Defense and Education Fund,
and Institute on the Constitution. Brian S. Koukoutchos,
Mandeville, Louisiana; James B. Astrachan, ASTRACHAN GUNST
THOMAS, P.C., Baltimore, Maryland, for Amici Congress of Racial
Equality, National Center for Public Policy Research, Project
21, Pink Pistols, Women Against Gun Control, and The Disabled
Sportsmen of North America. Dan M. Peterson, DAN M. PETERSON,
PLLC, Fairfax, Virginia, for Amici The Law Enforcement Legal
Defense Fund, Law Enforcement Action Network, Law Enforcement
Alliance of America, International Law Enforcement Educators and
Trainers Association, and Western States Sheriffs' Association.
Jonathan K. Baum, Chicago, Illinois, Mark T. Ciani, KATTEN
MUCHIN ROSENMAN LLP, New York, New York, for Amici Law Center to
Prevent Gun Violence and Marylanders to Prevent Gun Violence,
Inc. Jonathan E. Lowy, Kelly Sampson, BRADY CENTER TO PREVENT
GUN VIOLENCE, Washington, D.C.; Elliott Schulder, Suzan F.
Charlton, Amit R. Vora, Catlin Meade, Stephen Kiehl, COVINGTON &
BURLING LLP, Washington, D.C., for Amicus Brady Center To
Prevent Gun Violence. Barbara D. Underwood, Solicitor General,
Anisha S. Dasgupta, Deputy Solicitor General, Claude S. Platton,
Assistant Solicitor General, Eric T. Schneiderman, Attorney
4
General of the State of New York, for Amicus State of New York;
Kamala D. Harris, Attorney General of California, Sacramento,
California, for Amicus State of California; George Jepsen,
Attorney General of Connecticut, Hartford, Connecticut, for
Amicus State of Connecticut; Russell A. Suzuki, Attorney General
of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lisa
Madigan, Attorney General of Illinois, Chicago, Illinois, for
Amicus State of Illinois; Thomas J. Miller, Attorney General of
Iowa, Des Moines, Iowa, for Amicus State of Iowa; Martha
Coakley, Attorney General of Massachusetts, Boston,
Massachusetts, for Amicus Commonwealth of Massachusetts; Ellen
F. Rosenblum, Attorney General of Oregon, Salem, Oregon, for
Amicus State of Oregon; Karl A. Racine, Attorney General of The
District of Columbia, Washington, D.C., for Amicus The District
of Columbia.
5
TRAXLER, Chief Judge, wrote the opinion for the court as to
Parts I, II, and III, in which Judge Agee joined.
In April 2013, Maryland passed the Firearm Safety Act
(“FSA”), which, among other things, bans law-abiding citizens,
with the exception of retired law enforcement officers, from
possessing the vast majority of semi-automatic rifles commonly
kept by several million American citizens for defending their
families and homes and other lawful purposes. Plaintiffs raise
a number of challenges to the FSA, contending that the “assault
weapons” ban trenches upon the core Second Amendment right to
keep firearms in defense of hearth and home, that the FSA’s ban
of certain larger-capacity detachable magazines (“LCMs”)
likewise violates the Second Amendment, that the exception to
the ban for retired officers violates the Equal Protection
Clause, and that the FSA is void for vagueness to the extent
that it prohibits possession of “copies” of the specifically
identified semi-automatic rifles banned by the FSA. The
district court rejected Plaintiffs’ Second Amendment challenges,
concluding that the “assault weapons” and larger-capacity
magazine bans passed constitutional muster under intermediate
scrutiny review. The district court also denied Plaintiffs’
equal protection and vagueness claims.
In our view, Maryland law implicates the core protection of
the Second Amendment—“the right of law-abiding responsible
6
citizens to use arms in defense of hearth and home,” District of
Columbia v. Heller, 554 U.S. 570, 635 (2008), and we are
compelled by Heller and McDonald v. City of Chicago, 561 U.S.
742 (2010), as well as our own precedent in the wake of these
decisions, to conclude that the burden is substantial and strict
scrutiny is the applicable standard of review for Plaintiffs’
Second Amendment claim. Thus, the panel vacates the district
court’s denial of Plaintiffs’ Second Amendment claims and
remands for the district court to apply strict scrutiny. The
panel affirms the district court’s denial of Plaintiffs’ Equal
Protection challenge to the statutory exception allowing retired
law enforcement officers to possess prohibited semi-automatic
rifles. And, the panel affirms the district court’s conclusion
that the term “copies” as used by the FSA is not
unconstitutionally vague.
I. Background
A.
The FSA substantially expanded Maryland’s gun control laws.
Prior to passage of the FSA, Maryland law permitted citizens in
good standing to possess semi-automatic 1 rifles after passing an
1
To fire a semi-automatic rifle, the shooter must pull the
trigger each time he wishes to discharge a round of ammunition.
In other words, a semi-automatic rifle fires “only one round
with a single trigger pull. . . . To fire a subsequent round,
the trigger must be released and pulled again.” J.A. 2254. By
(Continued)
7
extensive background check. 2 The FSA made it a crime after
October 1, 2013, to “possess, sell, offer to sell, transfer,
purchase, or receive” or to transport into Maryland any firearm
designated as an “assault weapon.” Md. Code, Crim. Law § 4-
303(a). Under the FSA, the term “assault weapon” includes
“assault long gun[s],” “assault pistol[s],” and “copycat
weapon[s].” Id. at § 4-301(d). Plaintiffs’ challenge in this
appeal is limited to the ban on “assault long guns,” i.e., most
semi-automatic rifles. An “assault long gun” is defined as any
one of the more than 60 semi-automatic rifle or shotgun models
specifically listed in section 5-101(r)(2) of the Maryland
Public Safety Code, see Md. Code, Crim. Law § 4-301(b), “or
their copies,” Md. Code, Pub. Safety § 5-101(r)(2). 3 The FSA
contrast, an automatic rifle, like an M-16, will continuously
discharge rounds “for as long as the trigger [is depressed or]
until the magazine is empty.” Id. at 2254-55. No party is
challenging the ban on automatic weapons.
2 Pre-ban Maryland law required a prospective purchaser of
what is now defined as an “assault weapon” to provide
information such as his “name, address, Social Security number,
place and date of birth, height, weight, race, eye and hair
color, signature, driver’s or photographic identification, [and]
occupation.” 2003 Maryland Laws Ch. 5, § 2. This information
is still required under current Maryland law for individuals
wishing to purchase regulated firearms. See Md. Code, Pub.
Safety § 5-118(b)(1).
3 The term “assault pistol” is defined by reference to a
list of 15 semi-automatic pistols, specified by make and model.
See Md. Code, Crim. Law § 4-301(c). Handguns are categorized
(Continued)
8
does not define the term “copies.” The list of prohibited
weapons includes the semi-automatic rifle models most popular by
far among American citizens, the AR-15 “and all imitations” and
the semi-automatic AK-47 “in all forms.” Id. at § 5-
101(r)(2)(ii) and (xv). 4 Anyone who possesses a prohibited semi-
automatic rifle or otherwise violates the FSA’s restrictions on
such rifles “is guilty of a misdemeanor” and is subject to a
separately by the FSA, see Md. Code, Pub. Safety Code § 5-
101(n)(1) (defining handgun as a “firearm with a barrel less
than 16 inches in length”), although there certainly are semi-
automatic handguns not listed as “assault pistols” under the
FSA.
“Copycat weapons” are semi-automatic rifles and shotguns
not specifically listed under section 5-102(r)(2) but similar in
terms of style and features to the listed weapons. See Md.
Code, Crim. Law § 4-301(e)(2) (“‘Copycat weapon’ does not
include an assault long gun or an assault pistol.”).
4 Maryland’s law does expressly permit its citizens to
possess a couple of semi-automatic rifles. For example, it
specifically exempts the WWII-era M1 Garand, see Md. Code, Pub.
Safety § 5-101(r)(2)(xxxvii), and the AR-15 “H-BAR”, see § 5-
101(r)(2)(xv), a heavy barrel iteration of the AR-15, neither of
which are popular home defense firearms. Citizens might also
legally possess other semi-automatic rifles that are not listed
under § 5-101(r)(2), presuming the citizen has sufficient
expertise to determine that the firearm does not constitute a
“copy” of one of the banned rifles or an “imitation” of the AR-
15 pattern semi-automatic rifle. One semi-automatic rifle that
apparently passes muster is the AR-10, see J.A. 210, a firearm
that is ill-suited to home defense for some smaller individuals
because of its heavy recoil which makes it difficult “to
reobtain the target and to quickly and accurately fire
subsequent shots if needed.” J.A. 2267.
9
prison term of up to three years. Md. Code, Crim. Law § 4-
306(a).
The FSA also imposed new limits on the acquisition of
detachable magazines in Maryland. Prior to the FSA, Maryland
law permitted the acquisition and transfer of detachable
magazines with a capacity of up to 20 rounds. See 2002
Maryland Laws Ch. 26, § 2. The FSA now makes it illegal to
“manufacture, sell, offer for sale, purchase, receive, or
transfer a detachable magazine that has a capacity of more than
10 rounds of ammunition for a firearm.” Md. Code, Crim. Law §
4-305(b). 5 The FSA, however, does not expressly prohibit the
transportation of magazines holding more than 10 rounds into
Maryland from out of state, as it does the transportation of
semi-automatic rifles. The same penalties that apply to a
violation of the statutory prohibitions against semi-automatic
rifles apply to a violation of the provisions regulating
magazines holding more than 10 rounds. See Md. Code, Crim. Law
§ 4-306(a).
The FSA provides a few exceptions to the ban on possessing
semi-automatic rifles or LCMs. For example, the statute
5 The statute defines a “detachable magazine” as “an
ammunition feeding device that can be removed readily from a
firearm without requiring disassembly of the firearm action or
without the use of a tool, including a bullet or cartridge.”
Md. Code, Crim. Law § 4-301(f).
10
contains a grandfather clause pursuant to which “[a] person who
lawfully possessed” or “completed an application to purchase” a
prohibited semi-automatic rifle “before October 1, 2013” may
lawfully continue to “possess and transport” it. See Md. Code,
Crim. Law § 4-303(b)(3)(i). And the FSA’s prohibitions do not
apply to several classes of individuals, such as active law
enforcement officers and licensed firearms dealers under certain
circumstances. See Md. Code, Crim. Law §§ 4-302(1), (3).
Another exception allows retired state or local law enforcement
agents to possess banned weapons and LCMs if the weapon or
magazine was “sold or transferred to the [retired agent] by the
law enforcement agency on retirement,” or the retired agent
“purchased or obtained” the weapon “for official use with the
law enforcement agency before retirement.” See Md. Code, Crim.
Law §§ 4-302(7)(i), (ii).
B.
Plaintiff Stephen Kolbe is a life-long resident of Maryland
who resides in Towson and owns a small business in Baltimore
County. Kolbe owns “one full-size semiautomatic handgun” that
is equipped with a standard detachable magazine that holds more
than 10 rounds. J.A. 1851. Various personal experiences,
including an incident in which an employee’s ex-boyfriend
threatened to come kill her at work but police did not respond
for thirty minutes, and Kolbe’s family’s close proximity to “a
11
high-traffic public highway,” J.A. 1852, have caused Kolbe to
conclude that he needs to keep firearms for the purpose of
“self-defense in [his] home.” J.A. 1851. But for the ban
imposed by the FSA, Kolbe would purchase a semi-automatic rifle,
which “possess[es] features which make[s] [it] ideal for self-
defense in the home.” J.A. 1851.
Plaintiff Andrew Turner is a Maryland resident who
currently owns three semi-automatic rifles, now banned as
assault weapons under the FSA, and a semi-automatic handgun, all
of which come with standard detachable magazines holding more
than 10 rounds. While on active duty in the United States Navy,
Turner suffered an injury that makes it difficult for him to
operate firearms and thus necessitates “access to full-capacity
magazines . . . to ensure,” among other things, his ability to
defend himself in his home. J.A. 1856. According to Turner, he
would purchase additional semi-automatic rifles with detachable
LCMs if Maryland law did not prohibit him from doing so.
Turner’s primary purpose for owning such firearms is self-
defense in his home, but he also uses his currently owned semi-
automatic rifles for target shooting and hunting.
Finally, Wink’s Sporting Goods, Inc., and Atlantic Guns,
Inc. -- two businesses that operate in the firearms, hunting,
and sport shooting industries -- joined the individual
plaintiffs in challenging the FSA. Likewise, several trade,
12
hunting and gun-owners’ rights organizations joined as
plaintiffs on their own behalf and on behalf of their members. 6
Just before the FSA took effect on October 1, 2013,
Plaintiffs filed a Motion for a Temporary Restraining Order and
sought declaratory and injunctive relief, arguing that the ban
on possession of assault rifles and the 10-round limitation on
detachable magazines abridges their rights under the Second
Amendment; that the exemption for retired law enforcement
officers under the FSA violates the Equal Protection Clause of
the Fourteenth Amendment; and that the term “copies” as it is
used in section 5-101(r)(2) of Maryland’s Public Safety Code is
unconstitutionally vague under the Due Process Clause of the
Fourteenth Amendment.
After the district court denied Plaintiffs’ Motion for a
Temporary Restraining Order, the parties filed cross motions for
summary judgment on the merits. The district court determined
that intermediate scrutiny applied to the Second Amendment
claims. In granting summary judgment to the State, the district
court concluded, under intermediate scrutiny, that Maryland’s
ban on “assault” rifles and LCMs met the applicable standards
and was thus valid under the Second Amendment. See Kolbe v.
6These include Associated Gun Clubs of Baltimore, Inc.;
Maryland Shall Issue, Inc.; Maryland State Rifle and Pistol
Association, Inc.; National Shooting Sports Foundation, Inc.;
and the Maryland Licensed Firearms Dealers Association, Inc.
13
O’Malley, 42 F. Supp. 3d 768, 797 (D. Md. 2014). The district
court also granted summary judgment for the State on Plaintiffs’
Equal Protection claim to the statutory exception for retired
law enforcement officers, holding that retired officers “are
differently situated” than ordinary citizens who wish to obtain
assault rifles. Id. at 798. Finally, the district court
granted summary judgment for the State on Plaintiffs’ vagueness
claim based on its conclusion that the ban on possessing assault
rifles “or their copies” sets forth “an identifiable core of
prohibited conduct.” Id. at 802.
Plaintiffs appeal.
II. Standard of Review
As we noted above, the district court decided this case on
cross-motions for summary judgment. “When faced with cross-
motions for summary judgment, we consider each motion separately
on its own merits to determine whether either of the parties
deserves judgment as a matter of law.” Bacon v. City of
Richmond, 475 F.3d 633, 337-38 (4th Cir. 2007) (internal
quotation marks omitted). In doing so, we apply the ordinary de
novo standard, while “resolving all doubts and inferences in
favor of the non-moving party.” Id.Plaintiffs challenge each of the district court’s rulings.
We address these challenges seriatim.
14
III. Second Amendment
We turn first to Plaintiffs’ Second Amendment challenge to
the FSA’s ban on semi-automatic rifles and LCMs. The Second
Amendment, of course, 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.” In
United States v. Chester, we fashioned a two-part approach to
resolving Second Amendment challenges, see 628 F.3d 673, 680
(4th Cir. 2010), much like the approach adopted by several of
our sister circuits in the wake of Heller, see, e.g., Fyock v.
Sunnyvale, 779 F.3d 991, 996 (9th Cir. 2015); Ezell v. City of
Chicago, 651 F.3d 684, 701-03 (7th Cir. 2011); Heller v.
District of Columbia (“Heller II”), 670 F.3d 1244, 1252 (D.C.
Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01 (10th
Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d
Cir. 2010). First, we ask “whether the challenged law imposes a
burden on conduct falling within the scope of the Second
Amendment’s guarantee.” Chester, 628 F.3d at 680 (internal
quotation marks omitted). The answer to this question requires
an “historical inquiry” into “whether the conduct at issue was
understood to be within the scope of the right at the time of
ratification.” Id.; see Heller, 554 U.S. at 626-27. If the
answer to this initial inquiry is no, “the challenged law is
valid.” Chester, 628 F.3d at 680. However, “[i]f the
15
challenged regulation burdens conduct that was within the scope
of the Second Amendment as historically understood, then we move
to the second step of applying an appropriate form of means-end
scrutiny.” Id.A. Does the FSA’s Ban Implicate Second Amendment Rights?
We first address the threshold question of whether the bans
imposed by the FSA burden conduct that falls within the scope of
the Second Amendment. As is now well understood, Heller
affirmed that the Second Amendment protects a preexisting
“individual right to possess and carry weapons in case of
confrontation.” 554 U.S. at 592. “[D]eeply rooted in this
Nation’s history and tradition,” McDonald, 561 U.S. at 768(internal quotation marks omitted), this right is among the
“fundamental rights necessary to our system of ordered liberty,”
id. at 778. The right to keep and bear arms historically has
been understood to encompass “self-defense and hunting,” Heller,
554 U.S. at 599, but Heller made clear “the central component of
the Second Amendment right” is “individual self-defense,”
McDonald, 561 U.S. at 767. Moreover, the right to keep arms is
at its greatest strength in “the home, where the need for
defense of self, family, and property is most acute.” Heller,
554 U.S. at 628.
The FSA makes it unlawful for any citizen “to possess, . .
. purchase, or receive” an “assault weapon.” Md. Code, Crim.
16
Law § 4-303(a). 7 The statute prohibits all forms of possession
of any weapon listed in section 5-101(r)(2)—a law-abiding
citizen cannot keep any of these weapons in the home for any
reason, including the defense of self and family. Accordingly,
the conduct being regulated by the FSA includes an individual’s
possession of a firearm in the home for self-defense.
The Supreme Court has already performed an historical
analysis of our traditional understanding of a citizen’s right
to keep a weapon at home for self-defense, concluding that “the
right of law-abiding, responsible citizens to use arms in
defense of hearth and home” lies at the core of the Second
Amendment. Heller, 554 U.S. at 635. Any prohibition or
restriction imposed by the government on the exercise of this
right in the home clearly implicates conduct protected by the
Second Amendment.
The right to keep and bear arms, as a matter of history and
tradition, “is not unlimited,” of course, as even law-abiding
citizens do not have “a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.”
Id. at 626. Of particular relevance to this appeal is the
historical limitation upon which arms a citizen had the right to
bear, as the Second Amendment protects only “the sorts of
7 The same statutory prohibitions (except as to possession)
apply to LCMs. See Md. Code, Crim. Law § 4-305(b).
17
weapons . . . in common use at the time.” Id. at 627 (emphasis
added) (internal quotation marks omitted). “[The Second
Amendment] does not extend to all types of weapons, only to
those typically possessed by law-abiding citizens for lawful
purposes.” Marzzarella, 614 F.3d at 90. This limitation
reflects “the historical tradition of prohibiting the carrying
of dangerous and unusual weapons.” Id. (internal quotation
marks omitted; emphasis added).
Moreover, when the regulated conduct relates to a
particular class of weapons, we must address an additional issue
before we can say with assurance that the Second Amendment
applies and turn to the question of the appropriate level of
scrutiny. That is, we must determine whether the particular
class of weapons prohibited or regulated by the statute are
themselves protected by the Second Amendment. See Friedman v.
City of Highland Park, 784 F.3d 406, 414 (7th Cir. 2015)
(Manion, J., dissenting) (“[W]here, as here, the activity is
directly tied to specific classes of weapons, we are faced with
an additional threshold matter: whether the classes of weapons
regulated are commonly used by law-abiding citizens. If the
weapons in question (assault rifles and high-capacity magazines)
are not commonly used by law-abiding citizens, then our inquiry
ends as there is no Second Amendment protection . . . .”).
18
In United States v. Miller, 307 U.S. 174 (1939), the Court
rejected a Second Amendment challenge to the defendants’
convictions for unlawful possession of a short-barreled shotgun
because there was no “evidence tending to show” that such a
weapon was related “to the preservation or efficiency of a well
regulated militia” or was “part of the ordinary military
equipment,” id. at 178. Significantly, however, Miller noted
that “ordinarily when called for [militia] service [able-bodied]
men were expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” Id. at 179; see
Heller, 554 U.S. at 624-25 (“The traditional militia was formed
from a pool of men bringing arms in common use at the time for
lawful purposes like self-defense. In the colonial and
revolutionary war era, small-arms weapons used by militiamen and
weapons used in defense of person and home were one and the
same.” (internal quotation marks and alteration omitted)).
Reading Miller’s passages together, the Heller Court clarified
Miller’s holding and explained that “the Second Amendment does
not protect those weapons not typically possessed by law-abiding
citizens for lawful purposes, such as short-barreled shotguns.”
Heller, 554 U.S. at 625 (emphasis added). Accordingly, the
Second Amendment extends only to those weapons “typically
possessed by law-abiding citizens for lawful purposes,” id.; see
Marzzarella, 614 F.3d at 90 (“[The Second Amendment extends] . .
19
. only to those [weapons] typically possessed by law-abiding
citizens for lawful purposes.”); Heller II, 670 F.3d at 1260(“[W]e must also ask whether the prohibited weapons are
typically possessed by law-abiding citizens for lawful purposes;
if not, then they are not the sorts of Arms protected by the
Second Amendment.” (internal citation and quotation marks
omitted)); United States v. Fincher, 538 F.3d 868, 873 (8th Cir.
2008) (explaining there is no protection for “weapons not
typically possessed by law-abiding citizens for lawful purposes”
(internal quotation marks omitted)). Thus, we must determine
whether semi-automatic rifles and LCMs are commonly possessed by
law-abiding citizens for lawful purposes. See Fyock, 779 F.3d
at 998; Heller II, 670 F.3d at 1260-61.
Commonly Possessed
Like a number of courts that have previously considered
this question, we have little difficulty in concluding that the
banned semi-automatic rifles are in common use by law-abiding
citizens. See, e.g., Heller II, 670 F.3d at 1261 (“We think it
clear enough in the record that semi-automatic rifles and
magazines holding more than ten rounds are indeed in ‘common
use,’ as the plaintiffs contend. Approximately 1.6 million AR–
15s alone have been manufactured since 1986, and in 2007 this
one popular model accounted for 5.5 percent of all firearms, and
14.4 percent of all rifles, produced in the U.S. for the
20
domestic market.”); Colorado Outfitters Ass’n v. Hickenlooper,
24 F. Supp. 3d 1050, 1068 (D. Colo. 2014) (concluding that
statute “affects the use of firearms that are both widespread
and commonly used for self-defense,” in view of the fact that
“lawfully owned semi-automatic firearms using a magazine with
the capacity of greater than 15 rounds number in the tens of
millions”); Shew v. Malloy, 994 F. Supp. 2d 234, 246 (D. Conn.
2014) (concluding that semi-automatic rifles such as the AR-15
as well as magazines with a capacity greater than 10 rounds “are
‘in common use’ within the meaning of Heller and, presumably,
used for lawful purposes”). We make the assessment based on the
present-day use of these firearms nationwide. See, e.g., Heller
II, 670 F.3d at 1261 (looking to present-day use to assess
common use); United States v. Tagg, 572 F.3d 1320, 1326 (11th
Cir. 2009) (same); United States v. Fincher, 538 F.3d 868, 874
(8th Cir. 2008) (same)
We think it is beyond dispute from the record before us,
which contains much of the same evidence cited in the
aforementioned decisions, that law-abiding citizens commonly
possess semi-automatic rifles such as the AR-15. Between 1990
and 2012, more than 8 million AR- and AK-platform semi-automatic
rifles alone were manufactured in or imported into the United
States. J.A. 1877. In 2012, semi-automatic sporting rifles
accounted for twenty percent of all retail firearms sales. J.A.
21
1880. For perspective, we note that in 2012, the number of AR-
and AK-style weapons manufactured and imported into the United
States was more than double the number of Ford F-150 trucks
sold, the most commonly sold vehicle in the United States. J.A.
1878.
Likewise, the record in this case shows unequivocally that
LCMs are commonly kept by American citizens, as there are more
than 75 million such magazines in circulation in the United
States. In fact, these magazines are so common that they are
standard. “[O]n a nationwide basis most pistols are
manufactured with magazines holding ten to 17 rounds.” J.A.
2122. Even more than 20 years ago, “fully 18 percent of all
firearms owned by civilians . . . were equipped with magazines
holding more than ten rounds.” Heller II, 670 F.3d at 1261.
Virtually every federal court to have addressed this question
has concluded that “magazines having a capacity to accept more
than ten rounds are in common use.” Fyock v. City of Sunnyvale,
25 F. Supp. 3d 1267, 1275 (N.D. Cal. 2014) (noting such
magazines comprise “approximately 47 percent of all magazines
owned” and number “in the tens-of-millions, even under the most
conservative estimates” (internal quotation marks omitted),
aff’d, 779 F.3d 991, 998 (9th Cir. 2015) (“[W]e cannot say that
the district court abused its discretion by inferring from the
evidence of record that, at a minimum, magazines are in common
22
use.”). “There may well be some capacity above which magazines
are not in common use but, if so, the record is devoid of
evidence as to what that capacity is; in any event, that
capacity surely is not ten.” Heller II, 670 F.3d at 1261; see
also Shew, 994 F. Supp. 2d at 245-46; New York State Rifle &
Pistol Ass’n, Inc. v. Cuomo, 990 F. Supp. 2d 349, 365 (W.D.N.Y.
2013).
In addition, we reject the State’s argument that the Second
Amendment does not apply to detachable magazines because
magazines are not firearms—that is, detachable magazines do not
constitute “bearable” arms that are expressly protected by the
Second Amendment. See U.S. Const. amend. II. By Maryland’s
logic, the government can circumvent Heller, which established
that the State cannot ban handguns kept in the home for self-
defense, simply by prohibiting possession of individual
components of a handgun, such as the firing pin. But of course,
without the ability to actually fire a gun, citizens cannot
effectively exercise the right to bear arms. See Jackson v.
City of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (“The
Second Amendment protects ‘arms,’ ‘weapons,’ and ‘firearms’; it
does not explicitly protect ammunition. Nevertheless, without
bullets, the right to bear arms would be meaningless.”). In our
view, “the right to possess firearms for protection implies a
corresponding right” to possess component parts necessary to
23
make the firearms operable. Id. (internal quotation marks
omitted); see Ezell, 651 F.3d at 704 (“The right to possess
firearms for protection implies a corresponding right to . . .
maintain proficiency in their use; the core right wouldn’t mean
much without the training and practice that make it
effective.”).
This reasoning applies to the magazines in question. To
the extent that firearms equipped with detachable magazines are
commonly possessed by law-abiding citizens for lawful purposes,
there must also be an ancillary right to possess the magazines
necessary to render those firearms operable. To the extent the
State can regulate these magazines, it is not because the
magazines are not bearable “arms” within the meaning of the
Second Amendment.
Our conclusion that these magazines constitute “arms” also
finds strong historical support. Heller looked to early
definitions of “arms” to determine what weapons implicated the
Second Amendment, and those definitions were broad, including
“weapons of offence, or armour of defence,” or anything “that a
man . . . takes into his hands, or useth in wrath to cast at or
strike another.” Heller, 554 U.S. at 581. Other dictionaries
of the time say the same. See, e.g., Nathan Bailey, An
Universal Etymological English Dictionary 47 (1756) (defining
“arm” as “to furnish with armour of defense, or weapons of
24
offence”). Obviously, magazines and the rounds they contain are
used to strike at another and inflict damage. Early American
provisions protecting the right to “arms” were also crafted
partly in response to British measures that, while not taking
away guns entirely, drastically impaired their utility --
suggesting “arms” should be read to protect all those items
necessary to use the weapons effectively. See Saul Cornell, The
Early American Origins of the Modern Gun Control Debate: The
Right to Bear Arms, Firearms Regulation, and the Lessons of
History, 17 Stan. L. & Pol’y Rev. 571, 577 (2006) (describing
British efforts to steal colonial Williamsburg’s store of
gunpowder, thereby rendering the firearms of citizens useless).
In short, magazines and other forms of ammunition have long been
recognized as arms.
Lawful Purposes
Plaintiffs Kolbe and Turner both seek to acquire and keep
semi-automatic rifles, equipped with LCMs, in their homes
primarily for self-defense. And, they proffered evidence
suggesting that they are not alone in this regard. For example,
Plaintiffs’ expert James Curcuruto presented survey evidence
showing that self-defense was a primary reason for the purchase
of weapons banned under the FSA, and a 1989 Report from the
Bureau of Alcohol, Tobacco, and Firearms indicated that self-
defense was a suitable purpose for semi-automatic rifles. The
25
State’s expert Daniel Webster even agreed that it is reasonable
to assume that a purpose for keeping one of the prohibited
weapons is self-defense in the home.
The State argues that even if ownership of the prohibited
weapons and magazines is common, nothing in the record reflects
that these weapons are commonly used for self-defense. More
specifically, the State’s position is premised on Plaintiffs’
lack of evidence that the banned semi-automatic rifles have ever
actually been used in self-defense in Maryland, as opposed to
being possessed for self-defense.
The State’s position flows from a hyper-technical, out-of-
context parsing of the Supreme Court’s statement in Heller “that
the sorts of weapons protected were those in common use at the
time.” Heller, 554 U.S. at 627 (emphasis added; internal
quotation marks omitted). The State misreads Heller, as Second
Amendment rights do not depend on how often the semi-automatic
rifles or regulated magazines are actually used to repel an
intruder. The proper standard under Heller is whether the
prohibited weapons and magazines are “typically possessed by
law-abiding citizens for lawful purposes” as a matter of history
and tradition, id. at 625 (emphasis added), not whether the
magazines are often actually employed in self-defense incidents.
Actual use in self-defense is a poor measure of whether a
particular firearm is “typically possessed by law-abiding
26
citizens” for self-defense, as it is unlikely most people will
ever need to actually discharge a firearm in self-defense. See
Fyock, 25 F. Supp. 3d at 1276 (“The fact that few people will
require a particular firearm to effectively defend themselves
should be celebrated and not seen as a reason to except [that
firearm] from Second Amendment protection. Evidence that such
magazines are typically possessed by law-abiding citizens for
lawful purposes is enough.”).
More importantly, it is the government’s burden to
establish that a particular weapon or activity falls outside the
scope of the Second Amendment right. See Ezell, 651 F.3d at
702-03 (“[I]f the government can establish that a challenged
firearms law regulates activity falling outside the scope of the
Second Amendment right as it was understood at the relevant
historical moment—1791 or 1868—then the analysis can stop
there.”). So far as we can tell, nothing in the record suggests
any such tradition with respect to semi-automatic rifles or
LCMs. In fact, the Supreme Court, in a pre-Heller decision,
hinted at the opposite, stating that “certain categories of
guns,” such as “machineguns, sawed-off shotguns, and artillery
pieces,” have a “quasi-suspect character,” but that “guns
falling outside those categories traditionally have been widely
accepted as lawful possessions.” Staples v. United States, 511
U.S. 600, 611-12 (1994). Heller reiterated that “the Second
27
Amendment does not protect those weapons not typically possessed
by law-abiding citizens for lawful purposes, such as short-
barreled shotguns.” 554 U.S. at 625 (emphasis added).
We find nothing in the record demonstrating that law-
abiding citizens have been historically prohibited from
possessing semi-automatic rifles and LCMs. See Friedman, 784
F.3d at 418 (Manion, J., dissenting) (“[O]utside of weapons
deemed dangerous or unusual, there is no historical tradition
supporting wholesale prohibitions of entire classes of
weapons.”). In fact, semi-automatic firearms have been in use
by the civilian population for more than a century.
“[I]nitially called ‘self-loading’ or ‘auto-loading’ firearms,”
J.A. 2254, semi-automatic weapons with detachable magazines
started to see significant advancements in the late 1800s. In
1893, the “Brochardt semi-auto pistol” was developed for the
civilian market. J.A. 2255. In 1905, Winchester produced a
semi-automatic rifle, equipped with either a five- or ten-round
detachable magazine. And, in 1963, Colt produced the SP-1 semi-
automatic rifle with a 20-round detachable magazine, later known
as the AR-15, a semi-automatic counterpart to the fully
automatic M-16. There is no record evidence or historical
documentation that these weapons were at all prohibited until
relatively recently.
Dangerous and Unusual Weapons
28
Finally, the State argues that the banned semi-automatic
rifles are “unusually dangerous” and therefore do not fall
within the ambit of the Second Amendment. Heller makes clear
that “dangerous and unusual” weapons are not “weapons typically
possessed by law-abiding citizens for lawful purposes” that have
some degree of Second Amendment protection. But because all
firearms are dangerous by definition, the State reasons that
Heller must mean firearms that are “unusually dangerous” fall
altogether outside of the scope of the Second Amendment. The
State views the banned guns and LCMs as “unusually dangerous,”
rendering the Second Amendment inapplicable to the ban.
The State’s novel “unusually dangerous” standard reads too
much into Heller. As best we can tell, no statute or case has
mentioned, much less adopted, the State’s newly proffered
standard.
In distinguishing between protected and unprotected
weapons, Heller focused on whether the weapons were typically or
commonly possessed, not whether they reached or exceeded some
undefined level of dangerousness. Hand grenades, sawed-off
shotguns and fully automatic “M-16 rifles and the like,” Heller,
554 U.S. at 627, are unusual weapons that fall outside of the
Second Amendment because they are not in common use or typically
possessed by the citizenry, see id.; Fincher, 538 F.3d at 874(“Machine guns are not in common use by law-abiding citizens for
29
lawful purposes and therefore fall within the category of
dangerous and unusual weapons that the government can prohibit
for individual use.”).
Nothing in Heller suggests that courts considering a Second
Amendment challenge must decide whether a weapon is “unusually
dangerous.” Moreover, the difficulties that would arise from
the application of such a standard are fairly apparent. How is
a court to determine which weapons are too dangerous to
implicate the Second Amendment? The district court believed
that semi-automatic rifles with LCMs are too dangerous based on
evidence that they unleash greater destructive force than other
firearms and appear to be disproportionately connected to mass
shootings. But if the proper judicial standard is to go by
total murders committed, then handguns should be considered far
more dangerous than semi-automatic rifles. “[M]ost murders in
America are committed with handguns. No other weapon is used
nearly as often. During 2006, handguns were used in 60% of all
murders while long guns . . . were used only in 7%.” Carl T.
Bogus, Gun Control & America’s Cities: Public Policy &
Politics, 1 Alb. Gov’t L. Rev. 440, 447 (2008) (footnote
omitted). And, the use of handguns in the number of overall
homicides is out of proportion to the ownership of handguns.
See id. at 447 (“[A]mong the 192 million guns in America only
35% are handguns. . . [H]andguns are used in 88% of all firearm
30
murders.” (footnote omitted)). Yet Heller has established that
handguns are constitutionally protected and therefore cannot be
too dangerous for Second Amendment purposes.
Furthermore, Heller refers to “dangerous” and “unusual”
conjunctively, suggesting that even a dangerous weapon may enjoy
constitutional protection if it is widely employed for lawful
purposes, i.e., not unusual. Founding era understandings of
what it means for something to be “unusual” reflect that the
firearm must be rare to be considered “unusual.” See Samuel
Johnson, A Dictionary of the English Language 717 (1768)
(defining “unusual” as “not common: not frequent: rare”);
Bailey, supra, at 641 (defining “unusualness” as “rareness, and
uncommonness”); accord Peruta v. Cnty. of San Diego, 742 F.3d
1144, 1154 (9th Cir. 2014) (suggesting that laws applicable to
“dangerous and unusual” weapons were “understood to cover
carriage of uncommon, frightening weapons only”). Scholars
often read “unusual” in the same way. See, e.g., Jordan Pratt,
Uncommon Firearms as Obscenity, 81 Tenn. L. Rev. 633, 637 (2014)
(equating “dangerous and unusual” firearms with “uncommon”
ones”); Dan Terzian, The Right to Bear (Robotic) Arms, 117 Penn
St. L. Rev. 755, 767 (2013) (“Most likely, common use is the
sole limiting principle.”). If the firearm in question is
commonly possessed for lawful purposes, it certainly isn’t
“rare” and thereby “unusual.” See, e.g., Fyock, 25 F. Supp. 3d
31at 1275 (“To measure whether a weapon is dangerous and unusual,
the court looks at whether it is in common use . . . .”); In re
Wheeler, 81 A.3d 728, 750 (N.J. App. Div. 2013) (“[T]he
protection was not understood to extend to the keeping, carrying
or using of weapons that were deemed dangerous or unusual, in
the sense that they were not typically used by the law-abiding
and responsible for lawful purposes.”). Indeed, it was only a
dissent in Heller that focused on dangerousness alone. See
Heller, 554 U.S. at 711 (Breyer, J., dissenting). Thus, the
State’s “unusually dangerous” argument is of no avail. Our good
colleague in dissent would not reach this issue and therefore
assumes for analytical purposes that semi-automatic rifles like
the AR-15 are not “dangerous and unusual” but are commonly
possessed by law-abiding citizens for lawful purposes. 8
In sum, semi-automatic rifles and LCMs are commonly used
for lawful purposes, and therefore come within the coverage of
the Second Amendment. 9
8 Although the dissent faults our conclusion that the AR-15
and other semi-automatic rifles prohibited by Maryland law are
not so “dangerous and unusual” that they fall outside of the
scope of the Second Amendment, the dissent does not rest on
unusual dangerousness grounds.
9 Plaintiffs go too far in arguing that once we determine
that the prohibited firearms fall within the protective ambit of
the Second Amendment, the Act is unconstitutional and our
analysis is at an end. Although Heller indicated that the
District of Columbia’s ban on keeping operable handguns in the
home would fail any level of constitutional scrutiny, Heller did
(Continued)
32
B. Appropriate Level of Scrutiny
Having determined that the Second Amendment covers the
prohibited semi-automatic rifles, we next consider whether the
district court erred in applying intermediate scrutiny.
We first consider which of the two relevant standards of
scrutiny (strict or intermediate scrutiny) should apply. 10 The
strict-scrutiny standard requires the government to prove its
restriction is “narrowly tailored to achieve a compelling
not do away with means-end scrutiny for Second Amendment
challenges. Heller simply found it unnecessary to decide the
applicable level of scrutiny because a ban of handguns, the
overwhelming choice of Americans for home defense, was clearly
unconstitutional regardless of the standard applied. See Heller
II, 670 F.3d at 1265 (“If the Supreme Court truly intended to
rule out any form of heightened scrutiny for all Second
Amendment cases, then it surely would have said at least
something to that effect.”). Accordingly, in most every post-
Heller case implicating the Second Amendment, we have assumed
that “an appropriate form of means-end scrutiny” will be applied
once we determine that a challenged law implicates the Second
Amendment. See United States v. Pruess, 703 F.3d 242, 245 (4th
Cir. 2012); United States v. Carpio-Leon, 701 F.3d 974, 978 (4th
Cir. 2012); United States v. Carter (“Carter I”), 669 F.3d 411,
416 (4th Cir. 2012); United States v. Chapman, 666 F.3d 220, 225
(4th Cir. 2012); United States v. Staten, 666 F.3d 154, 158 (4th
Cir. 2011); Chester II, 628 F.3d at 678. Unless the Supreme
Court directs us to the contrary, we will apply “an appropriate
means-end scrutiny” to determine whether firearm regulations can
apply to acts coming under the protection of the Second
Amendment.
10 In a Second Amendment challenge, we will not conduct
rational-basis review. See Heller, 554 U.S. at 628 n.27 (“If
all that was required to overcome the right to keep and bear
arms was a rational basis, the Second Amendment would be
redundant with the separate constitutional prohibitions on
irrational laws, and would have no effect.”).
33
governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82
(1997); see Citizens United v. Federal Election Comm’n, 558 U.S.
310, 340 (2010) (explaining strict scrutiny “requires the
Government to prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest”
(internal quotation marks omitted)). To be narrowly tailored,
the law must employ the least restrictive means to achieve the
compelling government interest. See United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
Conversely, intermediate scrutiny requires the government to
“demonstrate . . . that there is a reasonable fit between the
challenged regulation and a substantial government objective.”
Chester, 628 F.3d at 683. For several reasons, we find that the
Act’s firearms and magazine bans require strict scrutiny.
In Chester, we adopted a First-Amendment-like approach to
determining the appropriate level of scrutiny to apply to any
given Second Amendment challenge. To select the proper level of
scrutiny, we consider “the nature of the conduct being regulated
and the degree to which the challenged law burdens the right.”
628 F.3d at 682. “A less severe regulation -- a regulation that
does not encroach on the core of the Second Amendment --
requires a less demanding means-ends showing.” Nat’l Rifle
Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco & Firearms, 700
F.3d 185, 195 (5th Cir. 2012); see also United States v.
34
Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012) (“The right
to bear arms, however venerable, is qualified by what one might
call the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘why.’”).
First, the FSA’s ban on semi-automatic rifles and larger-
capacity magazines burdens the availability and use of a class
of arms for self-defense in the home, where the protection
afforded by the Second Amendment is at its greatest. It
implicates the “core” of the Second Amendment: “the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home.” Heller, 554 U.S. at 634, 635; see Kachalsky
v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (“What
we know from [Heller and McDonald] is that Second Amendment
guarantees are at their zenith within the home.”). At stake
here is a “basic right,” McDonald, 561 U.S. at 767, “that the
Framers and ratifiers of the Fourteenth Amendment counted . . .
among those fundamental rights necessary to our system of
ordered liberty,” id. at 778. Indeed, “[t]he [Supreme] Court
[in Heller] went to great lengths to emphasize the special place
that the home—an individual's private property—occupies in our
society.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244,
1259 (11th Cir. 2012).
Second, we conclude that the challenged provisions of the
FSA substantially burden this fundamental right. The burden
imposed in this case is not merely incidental. Maryland law
35
imposes a complete ban on the possession by law-abiding citizens
of AR-15 style rifles—the most popular class of centerfire semi-
automatic rifles in the United States. As we explained in
Section III.A., these weapons are protected under the Second
Amendment. We therefore struggle to see how Maryland’s law
would not substantially burden the core Second Amendment right
to defend oneself and one’s family in the home with a firearm
that is commonly possessed by law-abiding citizens for such
lawful purposes. Moreover, the FSA also reaches every instance
where an AR-15 platform semi-automatic rifle or LCM might be
preferable to handguns or bolt-action rifles--for example
hunting, recreational shooting, or competitive marksmanship
events, all of which are lawful purposes protected by the
Constitution. See Friedman v. City of Highland Park, 136 S. Ct.
447 (Mem.) (December 7, 2015) (Thomas, J., dissenting from the
denial of cert.) (“[T]he ordinance criminalizes modern sporting
rifles (e.g., AR-style semiautomatic rifles), which many
Americans own for lawful purposes like self-defense, hunting,
and target shooting.”). Thus, the FSA completely prohibits,
not just regulates, an entire category of weaponry. 11 As Judge
11 Despite my good friend’s contrary suggestion, in
prohibiting the AR-15 platform or pattern rifles and its copies
or imitations, Maryland law is prohibiting an entire class of
semi-automatic rifles. Indeed, the district court recognized
that the Maryland firearm law “remove[s] a class of weapons”
(Continued)
36
Kavanaugh noted in dissent in Heller II, prohibiting this group
of weapons might be “equivalent to a ban on a category of
speech.” 670 F.3d at 1285.
Contrary to the district court’s conclusion, the fact that
handguns, bolt-action and other manually-loaded long guns, and,
as noted earlier, a few semi-automatic rifles are still
available for self-defense does not mitigate this burden. See,
e.g., Jackson v. City & Cnty. of San Fran., 135 S. Ct. 2799,
2801 (2015) (Thomas, J., dissenting from the denial of
certiorari) (“[N]othing in our decision in Heller suggested that
a law must rise to the level of the absolute prohibition at
issue in that case to constitute a ‘substantial burden’ on the
core of the Second Amendment right.”). Indeed, the Supreme
Court rejected essentially the same argument in Heller—that the
District of Columbia’s handgun ban did not unconstitutionally
that the plaintiffs want for home defense. J.A. 181 (emphasis
added). Even the State’s expert witness refers to the “AR-15
class” of firearms. J.A. 438, Modern sporting rifles using the
AR-15 platform or pattern are produced by numerous manufacturers
including Colt, Olympic Arms, DPMS, Eagle Arms, Bushmaster, SGW
Enterprises, Essential Arms, and Sendra. Although the FSA
specifically lists the “Colt AR-15” as a prohibited weapon, the
AR-15 style semi-automatic rifles produced by other
manufacturers would be prohibited as copies or imitations under
Md. Code, Pub. Safety § 5-101(r)(2)(xv). See Friedman v. City
of Highland Park, 136 S. Ct. 447 (Mem.) (December 7, 2015)
(Thomas, J., dissenting from the denial of cert.) (describing
similar “Assault Weapons” ordinance as “categorical[ly]
ban[ning] . . . firearms that millions of Americans commonly own
for lawful purposes”); see also J.A. 413.
37
burden the right to self-defense because the law permitted the
possession of long guns for home defense. See Heller, 554 U.S.
at 629 (“It is no answer to say, as petitioners do, that it is
permissible to ban the possession of handguns so long as the
possession of other firearms (i.e., long guns) is allowed.”);
accord Parker v. District of Columbia, 478 F.3d 370, 400 (D.C.
Cir. 2007) (rejecting the District’s argument that alternative
weapons rendered handgun ban lawful, calling it “frivolous,” and
noting that “[i]t could be similarly contended that all firearms
may be banned so long as sabers were permitted”); cf.
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556
(1975) (“[O]ne is not to have the exercise of liberty of
expression in appropriate places abridged on the plea that it
may be exercised in some other place.”). A semi-automatic rifle
may not be “the quintessential self-defense weapon,” as Heller
described the handgun, 554 U.S. at 629; nonetheless, as we
explained previously, AR-15s and the like are commonly possessed
by law-abiding citizens for self-defense and other lawful
purposes and are protected under the Second Amendment.
There are legitimate reasons for citizens to favor a semi-
automatic rifle over handguns in defending themselves and their
families at home. The record contains evidence suggesting that
“handguns are inherently less accurate than long guns” as they
“are more difficult to steady” and “absorb less of the recoil .
38
. . , reducing accuracy.” J.A. 2131. This might be an
important consideration for a typical homeowner, who “under the
extreme duress of an armed and advancing attacker is likely to
fire at, but miss, his or her target.” J.A. 2123. “Nervousness
and anxiety, lighting conditions, the presence of physical
obstacles . . . and the mechanics of retreat are all factors
which contribute to [the] likelihood” that the homeowner will
shoot at but miss a home invader. J.A. 2123. These factors
could also affect an individual’s ability to reload a firearm
quickly during a home invasion. Similarly, a citizen’s ability
to defend himself and his home is enhanced with an LCM.
In sum, for a law-abiding citizen who, for whatever reason,
chooses to protect his home with a semi-automatic rifle instead
of a semi-automatic handgun, or possesses an LCM for use in
firearms kept in the home, the FSA significantly burdens the
exercise of the right to arm oneself at home. “The right to
self-defense is largely meaningless if it does not include the
right to choose the most effective means of defending oneself.”
Friedman, 784 F.3d at 418 (Manion, J., dissenting); see id. at
413 (“[T]he ultimate decision for what constitutes the most
effective means of defending one’s home, family, and property
resides in individual citizens and not the government. . . .
The extent of danger—real or imagined—that a citizen faces at
home is a matter only that person can assess in full.”). The
39
FSA “restrict[s] the right[] of [Maryland’s] citizens to select
the means by which they defend their homes and families.” Id.
at 419.
As we have noted on previous occasions, “any law that would
burden the ‘fundamental,’ core right of self-defense in the home
by a law-abiding citizen would be subject to strict scrutiny.
But, as we move outside the home, firearm rights have always
been more limited.” United States v. Masciandaro, 638 F.3d 458,
470 (4th Cir. 2011). “[T]his longstanding out-of-the-home/in-
the-home distinction bears directly on the level of scrutiny
applicable,” id., with strict scrutiny applying to laws
restricting the right to self-defense in the home, see Woollard
v. Gallagher, 712 F.3d 865, 878 (4th Cir. 2013) (observing that
restrictions on “the right to arm oneself at home” necessitates
the application of strict scrutiny). Strict scrutiny, then, is
the appropriate level of scrutiny to apply to the ban of semi-
automatic rifles and magazines holding more than 10 rounds. See
Friedman, 784 F.3d at 418 (Manion, J., dissenting); cf. Heller
II, 670 F.3d at 1284 (Kavanaugh, J., dissenting) (reading Heller
as departing from traditional scrutiny standards but stating
that “[e]ven if it were appropriate to apply one of the levels
of scrutiny after Heller, surely it would be strict scrutiny
rather than . . . intermediate scrutiny”).
40
We recognize that other courts have reached different
outcomes when assessing similar bans, but we ultimately find
those decisions unconvincing.
The Seventh Circuit, for instance, recently upheld a ban on
“assault weapons” and LCMs by dispensing with levels of scrutiny
entirely. See Friedman, 784 F.3d at 410. Instead, that court
conjured its own test, asking “whether a regulation bans weapons
that were common at the time of ratification or those that have
some reasonable relationship to the preservation or efficiency
of a well regulated militia, and whether law-abiding citizens
retain adequate means of self-defense.” Id. (internal quotation
marks and citations omitted). The Seventh Circuit’s approach
cannot be reconciled with Heller, which looked to present-day
use to assess whether handguns are in common use (and
consequently protected). See 554 U.S. at 629; see also id. at
582 (“Some have made the argument, bordering on the frivolous,
that only those arms in existence in the 18th century are
protected by the Second Amendment.” (emphasis added)).
Friedman, on the other hand, ignores the Supreme Court’s
specification of present-day focus and asks instead whether
certain features of the weapons in question were common at the
time of the Founding, effectively elevating a Heller dissent to
constitutional canon. Compare Friedman, 784 F.3d at 408-09
(suggesting that present day common use cannot be the relevant
41
test because machine guns were in common use when they were
federally banned in 1934 and are now uncommon because of the
ban), with Heller, 554 U.S. at 720-21 (Breyer, J., dissenting)
(same).
Friedman’s problems stretch beyond its direct contradiction
of Heller. For instance, the Friedman opinion defines the scope
of the Second Amendment right by reference to militias -- but it
then declares that states, “which are in charge of militias,”
should determine what weapons are rightfully held for militia-
related purposes. Friedman, 784 F.3d at 410-11. That course
effectively permits states to opt-out of the Second Amendment.
But see McDonald, 561 U.S. at 750 (“[T]he Second Amendment right
is fully applicable to states.”). Friedman also concludes that
the “dangerousness” of the regulated weapons should not be
decisive, Friedman, 784 F.3d at 409, but nevertheless dismisses
the self-defense-related benefits of those same weapons because
they “can fire more shots, faster, and thus can be more
dangerous in aggregate,” id. at 411. And it recognizes that the
restriction must be supported by some genuine state interest,
but then finds such an interest in the fact that bans might
“reduce[] the perceived risk from a mass shooting.” Id. at 412
(emphasis added). In other words, under the Seventh Circuit’s
view, a significant restriction on a fundamental right might be
justified by benefits that are quite literally imagined into
42
existence. Needless to say, we see much to question in the
Seventh Circuit’s decision.
Two courts of appeal have applied the standard of
intermediate scrutiny to restrictions like Maryland’s. See
Fyock, 779 F.3d at 999 (applying intermediate scrutiny to an LCM
ban); Heller II, 670 F.3d at 1262 (applying intermediate
scrutiny to a semi-automatic weapon and LCM ban). Both did so
after rather conclusorily determining that the bans in those
cases did not impose any significant burden on the Second
Amendment right. For its part, the D.C. Circuit was “reasonably
certain” that the challenged laws didn’t impose a substantial
burden, Heller II, 670 F.3d at 1262, while the Ninth Circuit
found that the district court did not “abuse [its] discretion”
at the preliminary injunction stage in finding much the same,
Fyock, 779 F.3d at 999.
For example, the D.C. Circuit in Heller II, with de minimis
analysis, simply concluded that prohibitions of the arms in
question would meet intermediate scrutiny because “the ban on
certain semi-automatic rifles [does not] prevent a person from
keeping a suitable and commonly used weapon for protection in
the home or for hunting[.]” 670 F.3d at 332. As noted earlier,
this genre of judicial conclusion seems plainly contrary to the
Supreme Court’s logic and statements in Heller: “It is no answer
to say . . . that it is permissible to ban the possession of
43
handguns so long as the possession of other firearms (i.e., long
guns) is allowed.” 554 U.S. at 629. Notwithstanding this
guidance from the Supreme Court, the Heller II court went on to
also summarily conclude that “the prohibition of semi-automatic
rifles and large-capacity magazines does not effectively disarm
individuals or substantially affect their ability to defend
themselves.” 670 F.3d at 1262. This holding seems to directly
contradict the Supreme Court’s statement in Heller that the
Second Amendment “surely elevates above all other interests the
right of law-abiding, responsible citizens to use arms in
defense of hearth and home.” 554 U.S. at 635. Thus, we find
Heller II and Fyock without persuasive reasoning and simply
incorrect.
Whatever may be said about the bans at issue in Fyock and
Heller II, it should be obvious by this point that we view
Maryland’s ban quite differently. A wholesale ban on an entire
class of common firearms is much closer to the total handgun ban
at issue in Heller than more incidental restrictions that might
be properly subject to intermediate scrutiny. The law here
“goes beyond mere regulation” and is instead “a total
prohibition of possession of certain types of arms.” Arnold v.
Cleveland, 616 N.E.2d 163, 176 (Ohio 1993) (Hoffman, J.,
concurring in part and dissenting in part) (addressing assault-
weapons ban); see also Marzzarella, 614 F.3d at 97 (stressing
44
that the ban in Heller was subject to most scrutiny because
“[i]t did not just regulate possession of handguns; it
prohibited it”). In this way, Maryland’s outright ban on LCMs
and “assault weapons” is akin to a law that “foreclose[s] an
entire medium of expression.” City of Ladue v. Gilleo, 512 U.S.
43, 55 (1994). Such laws receive exceptionally rigorous review
in the analogous context of the First Amendment, id., and we see
no reason for a different method here.
Our distinguished dissenting colleague asserts that we have
imprudently and unnecessarily broken with our sister courts of
appeal and infers that we will bear some responsibility for
future mass shootings. In our view, inferences of this nature
have no place in judicial opinions and we will not respond
beyond noting this. The meaning of the Constitution does not
depend on a popular vote of the circuits and it is neither
improper nor imprudent for us to disagree with the other
circuits addressing this issue. We are not a rubber stamp. We
require strict scrutiny here not because it aligns with our
personal policy preferences but because we believe it is
compelled by the law set out in Heller and Chester.
Because the district court did not evaluate the challenged
provisions of the FSA under the proper standard of strict
scrutiny, and the State did not develop the evidence or
arguments required to support the FSA under the proper standard,
45
we vacate the district court’s order as to Plaintiffs’ Second
Amendment challenge and remand for the court to apply strict
scrutiny in the first instance. This is not a finding that
Maryland’s law is unconstitutional. It is simply a ruling that
the test of its constitutionality is different from that used by
the district court. The State should be afforded the
opportunity to develop its case in light of this more demanding
standard, and Plaintiffs should be permitted to do so as well.
In doing so, the parties may look to “a wide range of sources,
such as legislative text and history, empirical evidence, case
law, and common sense, as circumstances and context require.”
Carter I, 669 F.3d at 418. 12
IV. Equal Protection
12 In light of our decision to remand the Second Amendment
claim, we need not address Plaintiffs’ arguments that the
district court committed error by granting summary judgment to
the State when there were several material facts in dispute,
and, by the same token, denying summary judgment to Plaintiffs
when the record contained various undisputed material facts that
required entry of judgment as a matter of law in favor of
Plaintiffs.
Plaintiffs also contest the district court’s denial of
their motion to exclude expert and fact testimony offered by the
State. Having carefully considered these arguments, we conclude
that the district court did not abuse its wide discretion in
evidentiary matters by denying the motions and considering the
testimony. See United States v. Min, 704 F.3d 314, 324-25 (4th
Cir. 2013) (decisions under Rule of Evidence 701 reviewed for
abuse of discretion); United States v. Wilson, 484 F.3d 267, 273
(4th Cir. 2007) (Rule of Evidence 702).
46
AGEE, Circuit Judge, wrote a separate opinion as to Part IV, in
which Judge King concurred in the judgment:
The Equal Protection Clause guarantees that no state shall
“deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1. 13 It does not
follow, however, that all classifications are forbidden.
Instead, the Equal Protection Clause is designed to “keep[]
governmental decisionmakers from treating differently persons
who are in all relevant respects alike.” Nordlinger v. Hahn,
505 U.S. 1, 10 (1992). In our view, the district court
correctly determined that retired police officers are not
similarly situated with the public at large for purposes of the
Maryland Firearm Safety Act (“FSA”). Therefore, granting those
officers certain rights under the FSA does not violate the Equal
Protection Clause.
A.
1.
To succeed on an equal-protection claim, “a plaintiff must
first demonstrate that he has been treated differently from
others with whom he is similarly situated.” Sandlands C & D LLC
v. Cnty. of Horry, 737 F.3d 45, 55 (4th Cir. 2013). “Generally,
in determining whether persons are similarly situated for equal
13This portion of the opinion omits internal marks,
alterations, citations, emphasis, or footnotes from quotations
unless otherwise noted.
47
protection purposes, a court must examine all relevant factors.”
United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)
(emphasis added). The court applies an appropriate level of
constitutional scrutiny to the challenged governmental act only
after the plaintiff makes this initial showing of similarity,
along with a showing that the government acted purposefully or
intentionally. Sandlands C & D LLC, 737 F.3d at 55.
The “similarly situated” standard requires a plaintiff to
identify persons materially identical to him or her who has
received different treatment. Different courts describe this
requirement in different ways. The Seventh Circuit, for
example, has said that the two compared groups must be
“identical or directly comparable in all material respects.”
LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937, 942
(7th Cir. 2010). The Eleventh Circuit indicates that different
groups must be “prima facie identical” to provide the relevant
comparison. Grider v. City of Auburn, Ala., 618 F.3d 1240, 1264
(11th Cir. 2010). The First Circuit, meanwhile, takes a more
colloquial approach, stressing that “apples should be compared
to apples.” Barrington Cove Ltd. P’ship v. R.I. Hous. & Mortg.
Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001). However the test is
written, the basic point is the same: the “evidence must show an
extremely high degree of similarity.” Willis v. Town of
Marshall, N.C., 275 F. App’x 227, 233 (4th Cir. 2008); see also
48
LaBella, 628 F.3d at 942 (“The similarly situated analysis is
not a precise formula, but . . . what is clear is that similarly
situated individuals must be very similar indeed.”).
2.
A retired officer enjoys two privileges under the FSA that
the public does not. First, he may possess an “assault weapon”
as long as it was “sold or transferred to the [officer] by the
law enforcement agency on retirement” or the officer “purchased
or obtained” it “for official use with the law enforcement
agency before retirement.” Md. Code, Crim. Law § 4-302(7).
Second, he is not subject to any of the restrictions on larger-
capacity magazines. Id. § 4-305(a)(2).
Exceptions for retired law enforcement officers like these
are common in firearms regulations. See, e.g., Cal. Penal Code
§§ 25450, 26015; D.C. Code § 7-2502.01(a)(2); N.Y. Penal Law
§ 265.20.e (McKinney 2015); see also Public Safety and
Recreational Firearms Use Protection Act, Pub. L. No. 103-322,
§ 110102(a)(4)(C), 108 Stat. 1796, 1996 (1994) (repealed 2004).
But according to Plaintiffs, the differentiation found in
Maryland’s law renders the entire FSA unconstitutional. See
Opening Br. 44 n.8.
B.
Plaintiffs argue that, when it comes to owning semi-
automatic weapons and larger-capacity magazines, retired law
49
enforcement officers and the public at large are “similarly
situated.” In our view, that argument fails because retired law
enforcement officers are different from the public in several
fundamental respects. Three dissimilarities are particularly
relevant.
1.
First, retired police officers possess a unique combination
of training and experience related to firearms. See Shew v.
Malloy, 994 F. Supp. 2d 234, 252 (D. Conn. 2014); Pineiro v.
Greene, 937 F. Supp. 2d 161, 176 (D. Mass. 2013). All Maryland
police officers undergo comprehensive training and qualification
on their firearms. See Code of Md. Admin. Regs. 12.04.02.03–
.10. This training incorporates live-fire exercises and
academic study. Moreover, it covers not just how to fire a
weapon accurately, but also when a given firearm is
appropriately used, how to minimize harm, and how to safely
store the firearm -- among many other subjects. After initial
qualification, officers must then undergo additional training
every year.
The officers do not just participate in some “general” form
of firearms training. Rather, the officers that carry assault
weapons on duty -- and thus, those most likely to obtain those
weapons upon retirement -- must receive further training and
certification tests that pertain specifically to those weapons.
50
An officer who wishes to carry an AR-15, for instance, must fire
at least 350 rounds of ammunition with that weapon during
initial training and qualification. See id. 12.04.02.06B(3)(c).
The same officer must also spend at least 14 hours in the
classroom discussing the appropriate use of such weapons. See
id. 12.04.02.06B(2)(c). If an officer fails to meet any one of
these requirements, he may not carry that weapon.
On a day-to-day basis, through their years of employment,
police officers gain further practical experience with their
weapons -- experience that few, if any, private civilians can
claim to possess in equal measure. For “[u]nlike most employees
in the workforce, peace officers carry firearms because their
occupation requires them on occasion to confront people who have
no respect either for the officers or for the law.” Gonzalez v.
City of Anaheim, 747 F.3d 789, 799 (9th Cir. 2014) (Trott, J.,
dissenting in part and concurring in part); see also United
States v. Fernandez, 121 F.3d 777, 780 (1st Cir. 1997) (“[L]aw
enforcement officers usually carry weapons[.]”). Indeed, perhaps
except for military personnel, police officers likely have more
experience with a firearm than any other profession in America.
And retired police officers are eligible to possess
prohibited firearms under the FSA only when those firearms come
directly from their employer upon retirement. In other words,
the FSA does not grant open permission to acquire prohibited
51
firearms at will. The officers will therefore have special
familiarity and training with the specific weapons they are
permitted to obtain. It is significant that the FSA exceptions
for retired police officers contain this clear nexus to their
professional law enforcement employment and training.
2.
Second, because they are granted a “special degree of
trust,” O’Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir.
1998), police officers are instilled with what might be called
an unusual ethos of public service. “[Police forces] must
demand a high level of discipline and duty of their members in
order to function effectively for the good of all members of
society.” Vorbeck v. Schnicker, 660 F.2d 1260, 1263 (8th Cir.
1981). Officers swear to uphold the law and serve the public
from the very start. Indeed, they most often take such an oath
on their first day as an officer. Once employed, they agree to
“serve mankind,” and “to safeguard lives and property; to
protect the innocent against deception; the weak against
oppression or intimidation, and the peaceful against violence or
disorder.” John Kleinig, The Ethics of Policing 236 (1996)
(quoting International Association of Chiefs of Police’s Law
Enforcement Code of Ethics); see also Seegmiller v. LaVerkin
City, 528 F.3d 762, 765 (10th Cir. 2008) (describing a law
enforcement code of ethics); Thaeter v. Palm Beach Cty.
52
Sheriff’s Office, 449 F.3d 1342, 1345-46 (11th Cir. 2006)
(same).
The officers’ responsibilities go beyond mere pledges and
oaths, as the law requires police officers to meet the highest
standards of conduct in acting to protect the public. For
example, a police officer “owe[s] a fiduciary duty to the public
to make governmental decisions in the public’s best interests.”
United States v. Woodard, 459 F.3d 1078, 1086 (11th Cir. 2006).
Likewise, “police have a duty to protect both the lives and the
property of citizens.” United States v. Markland, 635 F.2d 174,
176 (2d Cir. 1980). The law then grants officers the authority
to arrest, detain, and use force to fulfill these essential
responsibilities.
Given these publicly oriented responsibilities, law
enforcement officers -- retired and active alike -- are “not to
be equated with a private person engaged in routine public
employment or other common occupations of the community.” Foley
v. Connelie, 435 U.S. 291, 298 (1978); see also Peña v. Lindley,
No. 2:09–CV–01185–KJM–CKD, 2015 WL 854684, at *17 (E.D. Cal.
Feb. 26, 2015) (holding that police officers’ charge to protect
the public differentiated them from the public); Shew, 994 F.
Supp. 2d at 252 (same); cf. Detroit Police Officers Ass’n v.
City of Detroit, 190 N.W.2d 97, 98 (Mich. 1971) (“The police
force is a semi-military organization subject at all times to
53
immediate mobilization, which distinguishes this type of
employment from every other in the classified service.”).
Retired and active police officers are used to acting in the
public interest in a way that does not apply to the public at
large.
3.
Third, retired police officers face special threats that
private citizens do not. Most obviously, “retired law
enforcement officers often have to defend themselves . . . from
criminals whom they have arrested.” H.R. Rep. 108-560, at 4
(2004), reprinted in 2004 U.S.C.C.A.N. 805, 806; see, e.g.,
Alison Gendar, Ex-Con with Grudge Busted in Bashing, N.Y. Daily
News, July 1, 2007, at 13 (“Armed with a grudge and a set of
brass knuckles, an ex-con pummeled a retired cop last week as
payback for a minor arrest in 2002, authorities said.”). This
“greater risk of retaliatory violence,” which continues
“following retirement,” makes law enforcement officers different
even from other public employees. In re Wheeler, 81 A.3d 728,
763 (N.J. App. Div. 2013); see also Nichols v. Brown, No. CV 11–
09916 SJO, 2013 WL 3368922, at *6 (C.D. Cal. July 3, 2013); Mehl
v. Blanas, No. Civ. S 03-2682 MCE KHM, slip op. at 11 (E.D. Cal.
Sept. 3, 2004) (“While an officer’s duty to respond to the
public’s calls for help stops when he retires, the threat of
danger from enemies he might have made during his service does
54
not.”); cf. Williams v. Puerto Rico, 910 F. Supp. 2d 386, 399
(D.P.R. 2012) (noting that current and former government
officials have a greater need for firearms because “[t]he
sensitive nature of many of their jobs . . . subjects them to
additional risks of danger”).
What’s more, the same public spirit and sense of civic duty
that motivated retired law enforcement officers when they were
active might also lead them to intervene more often in dangerous
situations in retirement. Just recently, for example, a retired
police officer was injured when he allegedly interrupted a
robbery at his neighbor’s house. See Matthew J. Coyne, Charges
for 2 in Ex-Cop’s Shooting, J. News (Westchester, N.Y.), July
15, 2015, at A1. Other examples are easy to find. See, e.g.,
Kevin K. Ivesmillard, Cops: Evidence Doesn’t Support Teen
Burglar’s Account of How He Was Shot, Daily Commercial
(Leesburg, Fla.), Aug. 12, 2015, at A1 (describing a retired
police officer’s shooting of a burglar who allegedly attacked
him); Andrew Dys, Suspect Linked to Chester Councilman’s Killing
Pleads Guilty to Drug Charge, Herald (Rock Hill, S.C.), Mar. 17,
2015, at 521 (describing how a retired police officer was
allegedly shot after he followed gang members en route to a
robbery).
* * * *
55
Thus, in light of their special training, their extensive
experience, their commitment to public service, and their unique
need for protection in the face of post-retirement violence,
retired law enforcement officers are not similarly situated to
other Maryland citizens. That should end the equal-protection
analysis. See Brown v. Montoya, 662 F.3d 1152, 1173 (10th Cir.
2011) (“[T]o assert a viable equal protection claim, plaintiffs
must first make a threshold showing that they were treated
differently from others who were similarly situated to them.”).
C.
Chief Judge Traxler, in dissent on this issue, concedes
that retired police officers are not similarly situated, but
nonetheless deems that fact irrelevant -- positing that the
differences between retired officers and private citizens are
not sufficiently tied to the FSA’s perceived objectives to be
decisive. Plaintiffs never made this sort of argument; they
argued instead that retired police and private citizens are
equally well-trained and, consequently, similarly situated. The
dissent also focuses on a characteristic that Plaintiffs never
discuss: the “responsibility or authority . . . to protect” that
a retired police officer can (or cannot) be said to possess.
But even if Plaintiffs had pressed such a position, we should
not embrace it.
1.
56
When passed, the FSA had a number of objectives. Among
other things, it sought to “keep guns away from criminals” and
lower the rate of gun deaths from incidents like “murders,
suicides, and accidents,” all while “protect[ing] legal gun
ownership.” See J.A. 1183-84. It did so by amending or
repealing 31 separate sections of the Maryland Code covering
matters as diverse as hunting areas, mental health, police
training, and state record-keeping requirements. See 2013 Md.
Laws Ch. 427. The sheer breadth of the legislation makes it
obvious that the legislation was meant to balance many,
sometimes-competing objectives.
The provisions permitting retired officers to obtain
restricted firearms and magazines are directly related to these
broad objectives. Police officers’ experience and training
makes it less likely that retired officers will harm others
through the unskilled use of their firearms. See Shew, 994 F.
Supp. 2d at 252; Pineiro, 937 F. Supp. 2d at 176. Given their
years in public service, retired police officers would also be
more likely use their firearms in ways consistent with the
public’s interests, not simply private ones. Retired police
officers would further be expected to exercise special care to
ensure that their firearms and magazines are not acquired for
criminal purposes. And permitting retired police officers these
particular firearms and magazines could deter the unique
57
retaliatory violence that only those officers face. Thus,
retired police officers have “distinguishing characteristics
relevant to the interests” that Maryland intended to serve in
enacting the FSA. City of Cleburne, Tex. v. Cleburn Living
Ctr., 473 U.S. 432, 441 (1985).
2.
In finding to the contrary, the dissent defines the FSA’s
legislative objectives too narrowly. It assumes that the
General Assembly intended the Act to eliminate all of the
restricted weapons, such that most any exception to a wholesale
ban would be inconsistent with that objective (regardless of the
characteristics of those who stand to benefit). But the General
Assembly’s intent seems more nuanced than that: to limit the
prevalence of purportedly dangerous firearms and magazines
except in those instances where (1) certain facts ameliorated
the expected harms from the restricted items, or (2) other
public interests justified the continuing risk.
This approach is entirely acceptable under the Equal
Protection Clause. “[T]here is no mandate that a state must
address its problems wholesale.” Helton v. Hunt, 330 F.3d 242,
246 (4th Cir. 2003); accord FCC v. Beach Commc’ns, Inc., 508
U.S. 307, 316 (1993) (“[T]he legislature must be allowed leeway
to approach a perceived problem incrementally.”). “[S]tates are
free to regulate by degree, one step at a time, addressing the
58
phase of the problem which seems most acute to the legislative
mind.” Helton, 330 F.3d at 246; accord Williamson v. Lee
Optical of Okla. Inc., 348 U.S. 483, 489 (1955) (“Evils in the
same field may be of different dimensions and proportions,
requiring different remedies. Or so the legislature may
think.”). The FSA is more appropriately characterized as such a
step-by-step attempt.
The dissent also casts its lot with the Ninth Circuit,
resting much of its analysis on an abrogated decision from that
court, Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002),
abrogated by District of Columbia v. Heller, 554 U.S. 570(2008). But Silveira never engaged with the question before us,
namely, whether retired police officers are “similarly situated”
to private citizens. Instead, the Ninth Circuit ignored that
threshold issue and jumped straight to rational-basis review of
a California statute that granted retired police the right to
carry semi-automatic weapons despite a ban. See Silveira, 312
F.3d at 1090-91. The Ninth Circuit then established the
California statute’s objectives by relying on legislative
history and public statements specific to that statute, all of
which indicated that the California law was intended to
“eliminate the availability of the [restricted] weapons
generally.” Id. at 1091. In contrast, the record here contains
59
no evidence that the Maryland General Assembly had any similarly
prohibitionist intent.
Most fundamentally, Silveira appears to have been animated
by a hostility toward so-called “assault weapons” in general.
Id. (holding that there is no “legitimate state interest” in
permitting retired police officers -- and apparently anyone --
to “possess and use” “military-style weapons” “for their
personal pleasure”); cf. Nordyke v. King, 319 F.3d 1185, 1192
n.4 (9th Cir. 2003) (criticizing “the Silveira panel’s
unnecessary historical disquisition” in which it “took it upon
itself” to advance a limited reading of the Second Amendment).
Silveira’s equal-protection analysis should be put aside as a
legally unsound and factually distinguishable discussion that
lacks any persuasive authority.
D.
For all these reasons, we affirm the district court’s
decision on the equal-protection issue. Retired police officers
and the public are not similarly situated, and dissimilar
treatment of these dissimilar groups does not violate the Equal
Protection Clause.
TRAXLER, Chief Judge, wrote the opinion for the court as to
Parts V and VI, in which Judge Agee joined:
V. Vagueness
60
Finally, Plaintiffs contend that the FSA is
unconstitutionally vague on its face because it is not drafted
with sufficient clarity to allow an ordinary citizen to
understand when a firearm qualifies as a “copy” of a banned
semi-automatic rifle. As previously explained, the FSA
prohibits possession of “assault long guns,” which are defined
by reference to the list of specific “assault weapons or their
copies” set forth in § 5-101(r)(2). The statute does not define
the term “copies,” and there is no state regulatory definition.
The FSA has not been enforced against Plaintiffs, and they do
not claim that they were forced to forego their Second Amendment
rights because they were uncertain whether weapons they wished
to acquire were prohibited. Nonetheless, Plaintiffs ask us to
invalidate this portion of the FSA under the Due Process Clause.
“Due process requires that a criminal statute provide
adequate notice to a person of ordinary intelligence that his
contemplated conduct is illegal, for no man shall be held
criminally responsible for conduct which he could not reasonably
understand to be proscribed.” United States v. Sun, 278 F.3d
302, 309 (4th Cir. 2002) (internal quotation marks omitted).
“[T]he void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory
61
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); see
United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993).
Our task is to determine “whether the government’s policy is set
out in terms that the ordinary person exercising ordinary common
sense can sufficiently understand and comply with.” Imaginary
Images, Inc. v. Evans, 612 F.3d 736, 749 (4th Cir. 2010)
(internal quotation marks omitted). In order to succeed on a
vagueness challenge, therefore, a litigant must “prove that the
enactment is vague not in the sense that it requires a person to
conform his conduct to an imprecise but comprehensible normative
standard, but rather in the sense that no standard of conduct is
specified at all.” Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982). Put another
way, he must demonstrate that the “provision simply has no
core.” Id. (internal quotation marks omitted).
The State urges us to apply the rule set forth in United
States v. Salerno, requiring Plaintiffs to establish that “no
set of circumstances exists under which the Act would be valid.”
481 U.S. 739, 745 (1987). We have noted previously that the
continuing validity of the “no set of circumstances” formulation
is unclear, see United States v. Comstock, 627 F.3d 513, 518
(4th Cir. 2010), and our concern was validated further in the
Supreme Court’s recent decision in Johnson v. United States, 135
S. Ct. 2551, 2561 (2015) (“[O]ur holdings squarely contradict
62
the theory that a vague provision is constitutional merely
because there is some conduct that clearly falls within the
provision’s grasp.”). Regardless, “at the very least, a facial
challenge cannot succeed if a statute has a ‘plainly legitimate
sweep.’” Comstock, 627 F.3d at 518 (quoting Crawford v. Marion
Cnty. Election Bd., 553 U.S. 181, 202 (2008); Martin v. Lloyd,
700 F.3d 132, 135 (4th Cir. 2012) (“[A] facial challenge is
ineffective if the statute has a plainly legitimate sweep.”
(internal quotation marks omitted)).
The phrase “assault weapons and their copies” has a plainly
legitimate sweep and is not unconstitutionally vague. Although
the Act does not specifically define “copy,” the plain meaning
of the word—“something that is or looks exactly or almost
exactly like something else: a version of something that is
identical or almost identical to the original”—is not beyond the
grasp of an ordinary citizen. Merriam-Webster online
dictionary. The word is a familiar one in Maryland state law,
Md. Code Pub. Safety § 5-101(r)(2), and even federal law, 18
U.S.C. § 921(a)(30)(A)(i) (1994 & Supp. V 1999). When read
together with the specific list of prohibited firearms, “copies”
is sufficiently definite to give notice to an ordinary person of
the conduct that would subject him to criminal sanctions—
possession of any firearm that is identical or almost identical
to any of the 60-plus semi-automatic rifles listed in the Act is
63
prohibited. Cf. United States v. Fontaine, 697 F.3d 221, 226-27
(3d Cir. 2012) (finding that statute prohibiting possession of
an imitation firearm during crime of violence was not
unconstitutionally vague).
Additionally, in 2010, Maryland’s Attorney General provided
guidance on the meaning of “copy” under section 5-101(r)(2) of
the Public Safety Code: “[A] copy of a designated assault weapon
must be similar in its internal components and function to the
designated weapon. Cosmetic similarity to an enumerated assault
weapon alone would not bring a weapon within the regulated
firearms law.” 95 Op. Att’y Gen. 101. J.A. 678. Following the
Attorney General’s issuance of this opinion, the Maryland State
Police issued a bulletin indicating that a firearm was subject
to regulation under the Act if it was “cosmetically similar to a
specifically enumerated assault weapon” and “has completely
interchangeable internal components necessary for the full
operation and function of any one of the specifically enumerated
assault weapons.” J.A. 676.
Plaintiffs argue that the typical gun owner would have no
way of knowing whether the internal components of one firearm
are interchangeable with the internal components of another.
This argument has a commonsense appeal; nonetheless, Plaintiffs
have not identified any firearm that they would not risk
possessing because of any uncertainty over the meaning of
64
“copies.” Although it is possible to invent “scenarios in which
a regulation might be subject to a successful vagueness
challenge,” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 371
(4th Cir. 2012), “speculation about possible vagueness in
hypothetical situations not before the Court will not support a
facial attack on a statute when it is surely valid in the vast
majority of its intended applications,” id. (internal quotation
marks omitted). It is telling that the weapons that Plaintiffs,
according to their own testimony, wish to acquire are all
clearly prohibited by the FSA. Section 5-101(r)(2) is therefore
“surely valid in the vast majority of its intended
applications.”
Finally, we note that this same list of “assault weapons or
their copies” has been on the books in Maryland for more than 20
years. Although possession of these weapons was not banned
prior to passage of the FSA, an individual could not acquire any
of the specifically listed “assault weapons” or their “copies”
without submitting to a background check. The failure to comply
with the regulations was subject to criminal sanctions. Yet,
Plaintiffs have not identified, and we are unaware of any
instance, where the term “copy” created uncertainty or was
challenged as too vague.
We reject Plaintiffs’ vagueness argument. A statute need
only have a “legitimate sweep,” Martin, 700 F.3d at 135, that
65
identifies a “core” of prohibited conduct, Hoffman Estates, 455
U.S. at 495 n.7. “A failure by a statute to define all of its
terms does not necessarily render it impermissibly vague,”
Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 191 n.4 (4th
Cir. 2013), and a “statute need not spell out every possible
factual scenario with celestial precision to avoid being struck
down on vagueness grounds,” United States v. Hager, 721 F.3d
167, 183 (4th Cir. 2013). In short, “[v]agueness review is
quite deferential.” United States v. Runyon, 707 F.3d 475, 502
(4th Cir. 2013). The challenged provisions of the Act
sufficiently demarcate a core of prohibited conduct under the
Act to survive that deferential test.
VI.
To sum up, the panel vacates the district court’s summary
judgment order on Plaintiffs’ Second Amendment claims and
remands for the district court to apply strict scrutiny. The
panel affirms the district court’s summary judgment order on
Plaintiffs’ Equal Protection claim with respect to the FSA’s
exception permitting retired law enforcement officers to possess
semi-automatic rifles. Finally, the panel affirms the district
court’s conclusion that the FSA is not unconstitutionally vague.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
66
KING, Circuit Judge, wrote an opinion dissenting as to Part III
and concurring in the judgment as to Parts IV and V:
There is sound reason to conclude that the Second Amendment
affords no protection whatsoever to the assault rifles and
shotguns, copycat weapons, and large-capacity detachable
magazines that are banned by the State of Maryland. Assuming,
however, that Maryland’s Firearm Safety Act (the “FSA”) burdens
the Second Amendment right, it is, put most succinctly, subject
to nothing more than intermediate scrutiny. Indeed, no
precedent of the Supreme Court or our own Court compels us to
rule otherwise. And the suitability of intermediate scrutiny is
confirmed by cogent decisions of other courts of appeals. I
therefore dissent insofar as the panel majority — charting a
course today that divides us from our sister circuits — vacates
the district court’s denial of the Plaintiffs’ Second Amendment
claims and remands for an application of strict scrutiny.
Although I am dissenting from the panel majority’s
reinstatement of the Second Amendment claims pressed by the
Plaintiffs, I concur in the judgment to the extent that we
affirm the district court’s denial of the Plaintiffs’ claims
that the FSA violates the Equal Protection Clause of the
Fourteenth Amendment and is unconstitutionally vague. I would,
in sum, wholly affirm the judgment of the district court on the
basis of its summary judgment decision, which I commend
67
unreservedly. See Kolbe v. O’Malley, 42 F. Supp. 3d 768 (D. Md.
2014). 1
I.
A.
Let’s be real: The assault weapons banned by Maryland’s
FSA are exceptionally lethal weapons of war. In fact, the most
popular of the prohibited semiautomatic rifles, the AR-15,
functions almost identically to the military’s fully automatic
M16. Significantly, the Supreme Court in its seminal Heller
decision singled out “M-16 rifles and the like,” i.e., arms
“that are most useful in military service,” as being “dangerous
and unusual weapons” not even protected by the Second Amendment.
See District of Columbia v. Heller, 554 U.S. 570, 624-25, 627
(2008) (recognizing “that the Second Amendment does not protect
those weapons not typically possessed by law-abiding citizens
1
In addition to a thoughtful and compelling analysis of the
Second Amendment claims, the district court provided all the
reasons needed to reject the equal protection and vagueness
claims. See Kolbe, 42 F. Supp. 3d at 797-99 (concluding that
the FSA does not violate the Equal Protection Clause by
excepting retired law enforcement officers from the assault-
weapon and large-capacity-magazine bans, in “that retired law
enforcement officers are differently situated by virtue of their
experiences ensuring public safety and their extensive training
on the use of firearms”); id. at 799-803 (ruling that, because
it imparts “sufficient notice of banned conduct,” including
“what constitutes a ‘copy’ of the banned assault long guns,” the
FSA is not unconstitutionally vague). As my good colleagues
recognize, see ante at 46 n.12, the district court also properly
denied the Plaintiffs’ motion to exclude certain expert and fact
evidence offered by the State.
68
for lawful purposes, such as short-barreled shotguns [and
machineguns]”). Similar to the district court — and unlike the
panel majority — I am far from convinced that the Second
Amendment reaches the AR-15 and other assault weapons prohibited
under Maryland law, given their military-style features,
particular dangerousness, and questionable utility for self-
defense. See Kolbe, 42 F. Supp. 3d at 788 (“Upon review of all
the parties’ evidence, the court seriously doubts that the
banned assault long guns are commonly possessed for lawful
purposes, particularly self-defense in the home, . . . and is
inclined to find the weapons fall outside Second Amendment
protection as dangerous and unusual.”).
That the banned assault weapons are not constitutionally
protected finds considerable support in the record, which
includes the following evidence:
● The AR-15 and other banned assault weapons, like
their military counterparts, “are firearms
designed for the battlefield, for the soldier to
be able to shoot a large number of rounds across
a battlefield at a high rate of speed.” See J.A.
206. The military-style features of those
weapons include folding or telescoping stocks,
pistol grips, flash suppressors, grenade
launchers, night sights, and the ability to
accept detachable magazines and bayonets. Their
design results in “a capability for lethality —
more wounds, more serious, in more victims — far
beyond that of other firearms in general,
including other semiautomatic guns.” See id. at
1121-22.
69
● The sole difference between the M16 and the AR-15
is that the M16 is capable of automatic fire
while the AR-15 is semiautomatic. That
difference is slight, in that automatic firing of
all the ammunition in a thirty-round magazine
takes two seconds, whereas a semiautomatic rifle
can empty the same magazine in about five
seconds. Moreover, soldiers and police officers
are often advised to choose semiautomatic fire,
because it is more accurate and lethal than
automatic fire in many combat and law enforcement
situations.
● The banned assault rifles and shotguns constitute
no more than 3% of the civilian gun stock, and
ownership of such weapons is concentrated in less
than 1% of the U.S. population. At the same
time, assault weapons are used disproportionately
to their ownership in mass shootings and the
murders of police officers, and they cause more
fatalities and injuries than other firearms.
● Maryland was inspired to enact the FSA by the
December 14, 2012 mass shooting at Sandy Hook
Elementary School in Newtown, Connecticut, where
the gunman used an AR-15-style assault rifle to
shoot his way into the locked building and then
murder twenty first-graders and six educators in
less than eleven minutes. That horrific event
was preceded and has been followed by mass
shootings across the nation.
● Criminals armed with the banned assault weapons
possess a “military-style advantage” in
firefights with law enforcement, as such weapons
“allow criminals to effectively engage law
enforcement officers from great distances (far
beyond distances usually involved in civilian
self-defense scenarios),” “are more effective
than handguns against soft body armor,” and
“offer the capacity to fire dozens of highly-
lethal rounds without having to change
magazines.” See J.A. 265.
70
● The banned assault weapons also can be more
dangerous to civilians than other firearms. For
example, “rounds from assault weapons have the
ability to easily penetrate most materials used
in standard home construction, car doors, and
similar materials,” and, when they do so, are
more effective than rounds fired from handguns.
See J.A. 279. Additionally, untrained users of
assault weapons tend to fire more rounds than
necessary, increasing the risk to bystanders.
● Although self-defense is a conceivable use of the
banned assault weapons, most people choose to
keep other firearms for self-defense, and
assault-weapon owners generally cite reasons
other than self-defense for owning assault
weapons. There is no known incident of anyone in
Maryland using an assault weapon for self-
defense.
In these circumstances, I am entirely unable to discern a
reasonable basis for saying that, although the M16 is a
dangerous and unusual weapon, the AR-15 and similar arms are
not. As the panel majority would have it, since all firearms
are dangerous, the dangerous-and-unusual standard is really only
concerned with whether a given firearm is unusual, i.e., “not in
common use or typically possessed by the citizenry.” See ante
at 29-30. Pursuant to the majority’s view, because M16s have
long been outlawed while AR-15s have in some places been
allowed, the AR-15 enjoys Second Amendment protection that the
M16 is denied. Accord Friedman v. City of Highland Park, 784
F.3d 406, 416 (7th Cir. 2015) (Manion, J., dissenting) (“In the
case of machine guns, nobody has argued, before or since, that
71
ordinary citizens used these weapons for lawful purposes, and so
they have been rightly deemed not to fall within the ambit of
the Second Amendment. Had there been even a small amount of
citizens who used them for lawful purposes, then the Second
Amendment might have covered them.”).
There are significant problems with the panel majority’s
conception of the dangerous-and-unusual standard. First of all,
even accepting that an “unusual” weapon is one that is not
commonly possessed, “what line separates ‘common’ from
‘uncommon’ ownership is something the [Heller] Court did not
say.” See Friedman, 784 F.3d at 409 (Easterbrook, J., writing
for the court). Moreover,
relying on how common a weapon is at the time of
litigation would be circular . . . . 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. A law’s existence can’t be the source
of its own constitutional validity.
Id.; see also Br. of Appellees 17 (“Focusing . . . solely on the
number or popularity of firearms owned would make the
constitutionality of a ban dependent on the time at which it was
enacted, with particularly dangerous weapons suddenly becoming
entitled to constitutional protection upon reaching an imaginary
constitutional numerosity threshold, but less dangerous firearms
72
permitted to be forever restricted if banned early enough.”
(internal quotation marks omitted)). It follows that the term
“unusual” most likely does not have the meaning accorded to it
by my colleagues.
Another significant problem with the panel majority’s
conception of the dangerous-and-unusual standard is that it
renders the word “dangerous” superfluous, on the premise that
all firearms are dangerous. In the course of doing so, the
majority rejects the State’s contention that weapons lacking
Second Amendment protection are “unusually dangerous” ones.
More specifically, the majority asserts that the unusually
dangerous benchmark finds no support in Heller and would be too
difficult to apply. But the Heller Court surely had relative
dangerousness in mind when it repudiated Second Amendment
protection for short-barreled shotguns and “weapons that are
most useful in military service — M-16 rifles and the like.”
See Heller, 554 U.S. at 624-25, 627 (internal quotation marks
omitted). Furthermore, the unusually dangerous benchmark is no
more difficult to apply than, for example, the majority’s
dubious test of whether a weapon is “not in common use” and thus
“unusual.”
That is not to say that it is easy to answer the question
of whether the assault weapons prohibited by Maryland’s FSA are
protected by the Second Amendment. Nor is it clear whether the
73
Second Amendment protects the banned large-capacity detachable
magazines, or “LCMs.” 2
The Supreme Court recently declined to expound on those
issues when it denied certiorari in the Seventh Circuit’s
Friedman case. See Friedman v. City of Highland Park, 136 S.
Ct. 447 (2015). Other of the federal courts of appeals have
considered bans similar to Maryland’s, discussed the complexity
of the issue of Second Amendment coverage, and ultimately
assumed — but not decided — that constitutional protection may
be afforded to assault weapons and LCMs. See N.Y. State Rifle &
Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 257 (2d Cir. 2015);
Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir.
2011) (“Heller II”). The district court likewise resolved to
assume without deciding that the FSA “places some burden on the
2 The State proffers two substantial grounds for ruling that
LCMs are unprotected. First, LCMs could be deemed dangerous and
unusual, in view of evidence that, inter alia, they “are
particularly designed and most suitable for military and law
enforcement applications.” See J.A. 891; see also, e.g., Kolbe,
42 F. Supp. 2d at 787-88 (addressing the State’s evidence that
LCMs “can allow a criminal to cause mass casualties, while
depriving victims and law enforcement of an opportunity to
escape or overwhelm an assailant as he reloads his weapon”).
Second, it could be concluded that LCMs are not “arms” within
the meaning of the Second Amendment and thus not eligible for
its protection. See Heller, 554 U.S. at 582 (observing that the
Second Amendment extends to “bearable arms”); Br. of Appellees
26 (“A large-capacity detachable magazine is not an ‘arm’
. . . . Indeed, large-capacity magazines are not even
ammunition, but instead are devices used for feeding ammunition
into firearms that can easily be switched out for other devices
that are of lower capacity . . . .”).
74
Second Amendment right.” See Kolbe, 42 F. Supp. 3d at 789.
Although I am strongly inclined to instead proclaim that the
Second Amendment is not implicated by the FSA, I will, as
explained below, refrain from doing so.
B.
We need not decide today whether the banned assault weapons
and large-capacity detachable magazines are protected by the
Second Amendment, because — following the lead of our colleagues
on the Second and District of Columbia Circuits — we can assume
they are so protected and yet rule that Maryland’s FSA passes
constitutional muster under the highest appropriate level of
scrutiny: that is, the concept of intermediate scrutiny. See
N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 257-64; Heller II,
670 F.3d at 1261-64; see also Kolbe, 42 F. Supp. 3d at 789-97.
Notably, not a single court of appeals has ever — until now —
deemed strict scrutiny to be applicable to a firearms regulation
along the lines of the FSA. 3 Indeed, in the wake of Heller, only
3In affirming the denial of a preliminary injunction in
Fyock v. City of Sunnyvale, the Ninth Circuit concluded that the
district court neither “clearly err[ed] in finding . . . that a
regulation restricting possession of [LCMs] burdens conduct
falling within the scope of the Second Amendment,” nor “abused
its discretion by applying intermediate scrutiny or by finding
that [the regulation] survived intermediate scrutiny.” See 779
F.3d 991, 998 (9th Cir. 2015). Thereafter, in Friedman, the
Seventh Circuit upheld the City of Highland Park’s ban on
assault weapons and LCMs, albeit without applying either
intermediate or strict scrutiny. See 784 F.3d at 410
(Continued)
75
the Sixth Circuit has applied strict scrutiny to any firearms
regulation (there, a prohibition on the possession of firearms
by a person who has been committed to a mental institution), and
that decision was vacated by the court’s grant of rehearing en
banc. See Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 775 F.3d 308(6th Cir. 2014), vacated, No. 13-1876 (6th Cir. Apr. 21, 2015),
ECF No. 50.
Employing no more than intermediate scrutiny in our
constitutional analysis of the FSA is not only counselled by
decisions of other courts of appeals, it is also entirely
consistent with binding precedent. Puzzlingly, however, the
panel majority deems itself “compelled by” the Supreme Court’s
decisions in Heller and McDonald v. City of Chicago, as well as
our own post-Heller decisions, to apply strict scrutiny. See
ante at 7. Of course, as our good Chief Judge previously
explained, “Heller left open the level of scrutiny applicable to
review a law that burdens conduct protected under the Second
Amendment, other than to indicate that rational-basis review
would not apply in this context.” See United States v. Chester,
(“[I]nstead of trying to decide what level of scrutiny applies,
and how it works, . . . we think it better to ask whether a
regulation bans weapons that were common at the time of
ratification or those that have some reasonable relationship to
the preservation or efficiency of a well regulated militia, and
whether law-abiding citizens retain adequate means of self-
defense.” (internal quotation marks omitted)).
76
628 F.3d 673, 682 (4th Cir. 2010); see also N.Y. State Rifle &
Pistol Ass’n, 804 F.3d at 253 (“The [Heller] Court did imply
that [Second Amendment] challenges are subject to one of ‘the
standards of scrutiny that we have applied to enumerated
constitutional rights,’ though it declined to say which . . . .”
(quoting Heller, 554 U.S. at 628)). McDonald did not amplify
Heller’s analysis, but instead illuminated only “that the Second
Amendment right is fully applicable to the States.” See 561
U.S. 742, 750 (2010). Consequently, neither Heller nor McDonald
can be read to require or demand strict scrutiny in this case.
Furthermore, our post-Heller decisions — particularly
United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), and
Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) — do not
compel an application of strict scrutiny to each and every
restriction on the right of self-defense in the home. According
to the panel majority, Masciandaro “noted” that “‘any law that
would burden the “fundamental,” core right of self-defense in
the home by a law-abiding citizen would be subject to strict
scrutiny,’” ante at 40 (quoting Masciandaro, 638 F.3d at 470),
while Woollard “observ[ed]” that “restrictions on ‘the right to
arm oneself at home’ necessitate[] the application of strict
scrutiny,” id. (quoting Woollard, 712 F.3d at 878). Actually,
however, Masciandaro did not note, it merely “assume[d] that any
law that would burden the ‘fundamental,’ core right of self-
77
defense in the home by a law-abiding citizen would be subject to
strict scrutiny.” See 638 F.3d at 470 (emphasis added). And
Woollard did not observe, it simply described the plaintiffs’
(rejected) contention that “the right to arm oneself in public
[is] on equal footing with the right to arm oneself at home,
necessitating that we apply strict scrutiny in our review of [an
outside-the-home regulation].” See 712 F.3d at 878; see also
id. at 876 (reiterating that Masciandaro did nothing more than
“‘assume’” that an inside-the-home regulation would be subject
to strict scrutiny (quoting Masciandaro, 638 F.3d at 470)).
Neither Masciandaro nor Woollard purported to, or had reason to,
decide whether strict scrutiny always, or even ever, applies to
regulations burdening the right of self-defense in the home.
Those decisions do not provide even a smattering of support for
the majority’s position on the level-of-scrutiny question.
We are thus left to conduct the analysis spelled out in our
Chester decision for selecting between strict and intermediate
scrutiny. Analogizing the Second Amendment to the First,
Chester explained that “the level of scrutiny we apply depends
on the nature of the conduct being regulated and the degree to
which the challenged law burdens the right.” See 628 F.3d at
682. Here, too, I part ways with the panel majority. Although
I assume that the FSA implicates the “core protection” of the
Second Amendment — “the right of law-abiding, responsible
78
citizens to use arms in defense of hearth and home,” see Heller,
554 U.S. at 634-35 — I simply cannot agree that the FSA
sufficiently burdens that right to elicit strict scrutiny.
Contrary to the panel majority, the FSA does not, in
banning certain assault weapons and detachable magazines,
prohibit “an entire category of weaponry.” See ante at 36. Nor
“might [the FSA] be ‘equivalent to a ban on a category of
speech.’” See id. at 37 (quoting Heller II, 670 F.3d at 1285(Kavanaugh, J., dissenting)). To support its theory, the
majority carves out the popular AR-15 and its copies as “an
entire class of semi-automatic rifles.” See id. at 36 n.11.
But, of course, a ban on one type of semi-automatic rifle does
not equate to a prohibition on “an entire category of weaponry”
in the same sense that, using the Heller example, a blanket ban
on all handguns does. That fact — that the FSA does “not ban
‘an entire class of arms’” — renders “the restrictions
substantially less burdensome.” See N.Y. State Rifle & Pistol
Ass’n, 804 F.3d at 260 (quoting Heller, 554 U.S. at 628).
Moreover, despite what the panel majority says, it does
matter that the FSA leaves handguns, as well as nonautomatic and
some semiautomatic long guns, available for self-defense in the
home. According to the majority, Heller “rejected essentially
the same argument” when it dismissed the contention “‘that it is
permissible to ban the possession of handguns so long as the
79
possession of other firearms (i.e., long guns) is allowed.’”
See ante at 37-38 (quoting Heller, 554 U.S. at 629). The
majority’s equation of this case and Heller is wholly untenable,
because it depends on discounting the relevance of the handgun’s
status as “the quintessential self-defense weapon” — a status
that was obviously and unquestionably important to the Supreme
Court. See Heller, 554 U.S. at 628-29 (emphasizing that
handguns are “overwhelmingly chosen by American society for
[self-defense]”). To be sure, a ban on the possession of
handguns is far more burdensome on the right of self-defense in
the home than a prohibition on the possession of AR-15s and
similar arms.
At bottom, I agree with the Second and District of Columbia
Circuits “that ‘the prohibition of semi-automatic rifles and
large-capacity magazines does not effectively disarm individuals
or substantially affect their ability to defend themselves.’
The burden imposed by the challenged legislation is real, but it
is not ‘severe.’” See N.Y. State Rifle & Pistol Ass’n, 804 F.3d
at 260 (quoting Heller II, 670 F.3d at 1262). Accordingly, I
would apply intermediate scrutiny and, in an analysis like that
of the district court, uphold Maryland’s FSA as constitutional,
in that it is reasonably adapted to a substantial government
interest. See Kolbe, 42 F. Supp. 3d at 791-97 (concluding,
inter alia, “that the ban on assault weapons is likely to
80
further the government’s interest in protecting public safety by
removing weapons that cause greater harm when used — to both
civilians and police — and create greater obstacles for law
enforcement in stopping and detaining criminals who are using
them”). Simply put, the State has shown all that should be
required: a reasonable, if not perfect, fit between the FSA and
Maryland’s substantial interest in protecting the public safety
and deterring criminal activity.
II.
To their credit, my colleagues declare their rejection of
the Plaintiffs’ contention that, “once we determine that the
prohibited firearms fall within the protective ambit of the
Second Amendment, the [FSA] is unconstitutional and our analysis
is at an end.” See ante at 32 n.9. I fear, however, that by
liberally extending constitutional protection to unusually
dangerous arms and then decreeing strict scrutiny applicable to
every ban on law-abiding citizens’ in-home possession of
protected weapons, the panel majority has guaranteed the demise
of the FSA and other sensible gun-control measures within this
Circuit. After all, though strict scrutiny may not be “strict
in theory, but fatal in fact,” see Adarand Constructors, Inc. v.
Pena, 515 U.S. 200, 237 (1995), it is at least “the most
demanding test known to constitutional law,” see City of Boerne
v. Flores, 521 U.S. 507, 534 (1997).
81
This grave matter calls to mind the thoughtful words of our
esteemed colleague Judge Wilkinson, recognizing in Masciandaro
the “serious business” of adjudicating the Second Amendment’s
breadth: “We do not wish to be even minutely responsible for
some unspeakably tragic act of mayhem because in the peace of
our judicial chambers we miscalculated as to Second Amendment
rights.” See 638 F.3d at 475. To put it mildly, it troubles me
that, by imprudently and unnecessarily breaking from our sister
courts of appeals and ordering strict scrutiny here, we are
impeding Maryland’s and others’ reasonable efforts to prevent
the next Newtown — or Virginia Tech, or Binghamton, or Fort
Hood, or Tucson, or Aurora, or Oak Creek, or San Bernardino. In
my view, any burden imposed by the FSA on the Second Amendment
is far from severe. On the other hand, the State’s paramount
interest in the protection of its citizenry and the public
safety is profound indeed. Unfortunately, however, I find
myself outvoted today.
In these circumstances, and because I strongly agree with
the excellent decision of our distinguished district court
colleague upholding the constitutionality of the FSA, I
wholeheartedly dissent.
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TRAXLER, Chief Judge, wrote a dissenting opinion as to Part IV:
Plaintiffs contend that the FSA violates the Equal
Protection Clause by creating an exception for retired law
enforcement officers allowing them to acquire and possess banned
firearms and LCMs. Unlike other citizens, retired officers are
permitted under the Act to receive these weapons upon
retirement. See Md. Code, Crim. Law §§ 4-302(7)(i), 4-
305(a)(2). Plaintiffs argue that Maryland arbitrarily and
irrationally grants a privilege to retired law enforcement
officers that it denies to them and other similarly situated
citizens.
The Equal Protection Clause provides that “[n]o State shall
. . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. The
Equal Protection Clause “keeps governmental decisionmakers from
treating differently persons who are in all relevant respects
alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The Clause,
however, “does not take from the States all power of
classification,” Personnel Adm’r v. Feeney, 442 U.S. 256, 271
(1979); “[l]awmaking by its nature requires that legislatures
classify, and classifications by their nature advantage some and
disadvantage others.” Helton v. Hunt, 330 F.3d 242, 245 (4th
Cir. 2003). Since “classification is the very essence of the
art of legislation,” a challenged classification is “presumed to
83
be constitutional under the equal protection clause.” Moss v.
Clark, 886 F.2d 686, 689 (4th Cir. 1989). To survive a
constitutional challenge under the Equal Protection Clause, the
classification in question “need only be rationally related to a
legitimate state interest unless it violates a fundamental right
or is drawn upon a suspect classification such as race,
religion, or gender.” Giarratano v. Johnson, 521 F.3d 298, 303
(4th Cir. 2008).
Plaintiffs do not suggest that we are presented with a
suspect classification or a classification that impinges upon
fundamental rights. Therefore, rational-basis scrutiny applies
to determine whether the exception for retired law enforcement
officers to possess prohibited semi-automatic rifles and
magazines comports with Equal Protection.
An equal protection plaintiff first must “demonstrate that
he has been treated differently from others with whom he is
similarly situated and that the unequal treatment was the result
of intentional or purposeful discrimination.” Morrison v.
Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). To be “similarly
situated” means to be “similar in all aspects relevant to
attaining the legitimate objectives of legislation.” Van Der
Linde Housing, Inc. v. Rivanna Solid Waste Auth., 507 F.3d 290,
293 (4th Cir. 2007) (emphasis added). “Once this showing is
made, the court proceeds to determine whether the disparity in
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treatment can be justified under the requisite level of
scrutiny.” Morrison, 239 F.3d at 654; see e.g., City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-40
(1985).
In rejecting the equal protection claim, the district court
proceeded no further than the threshold question of whether
retired law enforcement officers in Maryland are similarly
situated to law-abiding citizens who wish to possess weapons
prohibited by the FSA. The district court concluded that
retired law enforcement officers as a class are not similarly
situated to the citizenry at large because of their firearms
training and experience. The district court noted that officers
who carry firearms are required to receive continuing classroom
instruction, complete firearms training and qualify periodically
with their firearms; that officers are trained how to store
firearms and ammunition safely in the home; and that law
enforcement officers, by virtue of their duty and authority to
protect public safety by use of force if need be, are more
experienced in the handling of firearms. Additionally, those
officers who use one of the prohibited weapons during the course
of duty are required to have received specialized training and
instruction on these weapons.
Plaintiffs respond that retired officers have varying
levels of training on these weapons, noting that most officers
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in fact do not have specialized training on a prohibited weapon
during their employment and the FSA does not require retired
officers who obtain prohibited weapons under the exception to
have specialized training. Plaintiffs suggest that the training
and experience thus does not differentiate retired officers in
Maryland from Plaintiffs or other individuals, some of whom are
trained on the handling of semi-automatic rifles and some of
whom are not. Maryland believes the general firearms training
received by all law enforcement officers while on the job is
sufficient to set them apart as a class from ordinary citizens.
Plaintiffs urge us to follow Silveira v. Lockyer, 312 F.3d
1052 (9th Cir. 2002), abrogated on other grounds, District of
Columbia v. Heller, 554 U.S. 570 (2008), * in which the Ninth
Circuit invalidated a similar statutory provision under the
Equal Protection Clause. I find this case instructive. In
Silveira, the plaintiffs raised an equal protection challenge to
a California statute banning “assault weapons” but “allowing the
possession of assault weapons by retired peace officers who
acquire them from their employers at the time of their
retirement.” Id. at 1059. California’s law also contained an
* Silveira v. Lockyer reaffirmed the Ninth’s Circuit
position at the time that the Second Amendment does not confer
an individual right to bear arms. See 312 F.3d 1052, 1060-61
(9th Cir. 2002). The Supreme Court, of course, rejected this
view in District of Columbia v. Heller, 554 U.S. 570, 592
(2008).
86
exception for active off-duty officers to use assault weapons
“only for law enforcement purposes.” Id. at 1089 (internal
quotation marks omitted). The court concluded that the
exception for off-duty officers passed muster because it was
rationally related to the statutory objective of preserving
public safety:
We presume that off-duty officers may find
themselves compelled to perform law enforcement
functions in various circumstances, and that in
addition it may be necessary that they have their
weapons readily available. Thus, the provision is
designed to further the very objective of preserving
the public safety that underlies the [statute].
Id. By contrast, the court “discern[ed] no legitimate state
interest in permitting retired peace officers to possess and use
[assault weapons] for their personal pleasure” while denying it
to others. Id. at 1091 (emphasis added). The court explained
that because the retired officer exception “does not require
that the transfer [of the weapon to the officer upon retirement]
be for law enforcement purposes, and the possession and use of
the weapons is not so limited,” the exception bears no rational
relationship and in fact is “directly contrary to the act’s
basic purpose of eliminating the availability of . . . military-
style weapons and thereby protecting the people of California
from the scourge of gun violence.” Id. at 1090.
The Ninth Circuit did not explicitly address the threshold
question of whether the plaintiffs and retired law enforcement
87
officers were similarly situated; however, the court rejected
the notion that retired officers should be allowed to possess
assault weapons for non-law enforcement purposes simply because
they “receive more extensive training regarding the use of
firearms than do members of the public.” Id. at 1091. As the
Ninth Circuit explained, “[t]his justification . . . bears no
reasonable relationship to the stated legislative purpose of
banning the possession and use of assault weapons in California
. . . . The object of the statute is not to ensure that assault
weapons are owned by those most skilled in their use; rather, it
is to eliminate the availability of the weapons generally.” Id.
The district court is likely correct that law enforcement
officers receive greater firearms training and have more
experience in the handling of firearms than an ordinary citizen
and, in that respect, are not “similarly situated” to
individuals who are not permitted to possess firearms banned
under the Act. But, in my view, these differences are not
“relevant to attaining the legitimate objectives of
legislation.” Van Der Linde Housing, 507 F.3d at 293.
Maryland’s Act was passed as part of “a comprehensive effort to
promote public safety and save lives.” Brief of Appellees at 9.
Like the Ninth Circuit in Silveira, I see the general firearms
training a retired officer received while on active police duty
as having only attenuated relevance to an overarching objective
88
of the FSA—to preserve the safety of the public. A retired
officer has no greater responsibility or authority than an
ordinary citizen to protect the general public. I cannot
discern how a retired officer’s ability to wield a semi-
automatic weapon with great adeptness for his personal use would
promote public safety through the elimination of semi-automatic
rifles like the AR-15. See Silveira, 312 F.3d at 1091 (“The
object of the statute is not to ensure that assault weapons are
owned by those most skilled in their use; rather, it is to
eliminate the availability of the weapons generally.”). For
purposes of this particular provision, I conclude that retired
law enforcement officers who are no longer charged with
protecting the public are similarly situated to Plaintiffs who
also wish to possess the prohibited weapons for personal uses
such as self-defense.
Therefore, the only remaining question is “whether the
disparity in treatment can be justified under the requisite
level of scrutiny.” Morrison, 239 F.3d at 654. In this case,
the requisite level of scrutiny is rational basis review. This
is hardly an imposing barrier for a statute to surmount.
Nonetheless, I think the best course, especially in light of our
decision to remand the Second Amendment claim for the
application of strict scrutiny review, is to remand the equal
protection claim as well for reconsideration in light of this
89
opinion. The parties on appeal focused their arguments on
whether citizens like Plaintiffs and retired law enforcement
officers are “similarly situated.” I would remand and havethe
parties focus on whether the FSA’s exception permitting retired
law enforcement personnel to possess semi-automatic rifles and
LCMs can be justified.
90