Lead Opinion
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 citizens to use arms in defense of hearth and home,” District of Columbia v. Heller,
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 semiautomatic
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).
The FSA provides a few exceptions to the ban on possessing semi-automatic rifles or LCMs. For example, the statute 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 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 “possesses] 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 semiautomatic 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 semiautomatic 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, hunting and gun-owners’ rights organizations joined as plaintiffs on their own behalf and on behalf of their members.
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. O’Malley,
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 crossmotions 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,
Plaintiffs challenge each of the district court’s rulings. We address these challenges seriatim.
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
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.”
The FSA makes it unlawful for any citizen “to possess, ... purchase, or receive” an “assault weapon.” Md.Code, Crim. Law § 4-303(a).
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,
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,
Moreover, when the regulated conduct relates to a particular class of weapong, 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,
In United States v. Miller,
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,
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. 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. “[0]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,
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,
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 de-fence,” or anything “that a man ... takes into his hands, or useth in wrath to cast at or strike another.” Heller,
Lawful Purposes
Plaintiffs Kolbe and Turner both seek to acquire and keep semi-automatic rifles, equipped with LCMs, in their homes pri
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,
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,
We find nothing in the record demonstrating that law-abiding citizens have been historically prohibited from possessing semi-automatic rifles and LCMs. See
Dangerous and Unusual Weapons
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,
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 & Poli
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, swpra, at 641 (defining “unusualness” as “rareness, and uncommonness”); accord Peruta v. Cnty. of San Diego,
In sum, semi-automatic rifles and LCMs are commonly used for lawful purposes, and therefore come within the coverage of the Second Amendment.
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.
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.”
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
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 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 flrearm 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, — U.S. —,
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., — U.S. —,
There are legitimate reasons for citizens to favor a semiautomatic 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 ..., 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,
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
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,
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,
Two courts of appeal have applied the standard of intermediate scrutiny to restrictions like Maryland’s. See Fyock,
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[.]”
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,
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
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, 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,
IV. Equal Protection
Notes
. 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 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.
. Pre-ban Maryland law required a prospective purchaser of what is now defined as an
. 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 separately by the FSA, see Md.Code, Pub. Safety Code § 5-101(n)(l) (defining handgun as a "firearm with a barrel less than 16 inches in length”), although there certainly are semiautomatic 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.”).
. Maryland’s law does expressly permit its citizens to possess a couple of semi-automatic rifles. For example, it specifically exempts the WWII-era Ml 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-IO, 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.
.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).
. These include Associated Gun Clubs of Baltimore, Inc.; Maryland Shall Issue, Inc.; Ma-
. The same statutory prohibitions (except as to possession) apply to LCMs. See Md.Code, Crim. Law § 4-305(b).
. 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.
. 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 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,
. In a Second Amendment challenge, we will not conduct rational-basis review. See Heller,
. 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” 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, Modem 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, — U.S.—,
. 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,
Concurrence Opinion
wrote a separate opinion as to Part TV, 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, § l.
A.
1.
To succeed on an equal-protection claim, “a plaintiff must first demon
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,
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., CaLPenal 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 semiautomatic weapons and larger-capacity magazines, retired law 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,
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. 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 “[ujnlike 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,
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 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,
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,
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,
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,
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 Al. Other examples are easy to find. See, e.g., Kevin K. Ivesmillard, Cops: Evi
Hi Hí Hí H* H* Hí
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,
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.
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 “protecting] 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,
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,
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,
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,
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
wrote the opinion for the court as to Parts V and VI, in which Judge AGEE joined:
V. Vagueness
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,
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.”
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 prohibited. Cf. United States v. Fontaine,
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 “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,
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
We reject Plaintiffs’ vagueness argument. A statute need only have a “legitimate sweep,” Martin,
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 semiautomatic 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
. This portion of the opinion omits internal marks, alterations, citations, emphasis, or footnotes from quotations unless otherwise noted.
Concurrence Opinion
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 unreservedly. See Kolbe v. O’Malley,
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,
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.
• 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 mur*194 ders 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.
• 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 177-78. 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,
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,
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 weap*195 ons 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 nu-merosity threshold, but less dangerous firearms 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,
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 Second Amendment protects the banned large-capacity detachable magazines, or “LCMs.”
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, — U.S. —,
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,
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 168. 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,
Furthermore, our post-Heller decisions — particularly United States v. Mas-ciandaro,
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
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 180. Nor “might [the FSA] be ‘equivalent to a ban on a category of speech.’ ” See id. at 180 (quoting Heller II,
Moreover, despite what the panel majority says, it does matter that the FSA
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,
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 178 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,
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
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.
. 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,
. 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,
. In affirming the denial of a preliminary injunction in Fyock v. City of Sunnyvale, the v 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
Dissenting Opinion
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 decisionmak-ers from treating differently persons who are in all relevant respects alike.” Nord-linger v. Hahn,
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,
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 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,
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 re
The Ninth Circuit did not explicitly address the threshold question of whether the plaintiffs and retired law enforcement 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,
Therefore, the only remaining question is “whether the disparity in treatment can be justified under the requisite level of scrutiny.” Morrison,
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