*1 omitted); Cozzarelli, reject attempt Mr. Willner’s to marks also accord We (finding James Dimon liable for F.3d at 630-31 no of discre- hold Chase CEO abuse negligence. allega- “declining grant Mr. Willner makes two tion a motion [to (1) signed Dimon a against properly tions him: Con- that was never made” but amend] Comp- only opposition with the Office of-the raised sent Order to motion Currency, objections magistrate troller of the which Chase dismiss and in to the agreed problems judge’s report). to correct with its servic- (2) ing practices, foreclosure and Mrs. tried to reach Dimon to
Willner discuss III. only process foreclosure but was able For the affirm given, reasons we speak with one of his assistants. Mr. Will- judgment. district court’s allegations support liability ner’s do not AFFIRMED any theory. Dimon under Finally, we turn to whether the district addressing
court erred not the Will- requests complaint.
ners’ to amend their
C. Stephen KOLBE; Turner; V. Andrew C. argue The Willners that the dis Sporting Goods, Incorporated; Wink’s trict court abused its discretion not Guns, Incorporated; Atlantic Associat providing denying reason their re Baltimore, Incorpo ed Gun Clubs of quests to amend. We review a district rated; Maryland Issue, Incorpo Shall court’s denial of leave to a com amend rated; Maryland Rifle and State Pistol plaint for abuse of discretion. Cozzarelli v. Association, Incorporated; National Inc., Inspire Pharm. 549 F.3d Shooting Sports Foundation, Incorpo (4th 2008). Cir. rated; Maryland Licensed Firearms find no such We abuse on this Association, Incorporated, Dealers record. The Willners never filed a formal Plaintiffs-Appellants, amend, motion to but requested rather leave to amend the conclusions of three oppositions to motions to dismiss and one Tardy; Shawn J. Matthew surreply. Equally important, they’ve not Godwin, Plaintiffs, shown, appeal, even on how amendment v. would cure the deficiencies in their com “[W]here, here, plaint. plaintiff HOGAN, Jr., as fails Lawrence J. in his official formally capacity move to amend and fails to as Governor of the State of provide Maryland; any pro Frosh, the district court with Brian E. in his offi posed Attorney complaint capacity amended or other cial indica as General of make, tion of the Maryland; amendments he wishes to the State of Colonel Wil Pallozzi, the district court capac not abuse its dis liam M. [does] his official ity Secretary cretion” in denying Department leave to amend. Estrella Bank, N.A., v. Fargo Superintendent Wells 497 Fed. State Police and 2012) curiam) Appx. Maryland Police; Maryland (per State (second Police, in original) (quotation Defendants-Appellees. alteration State *2 Virginia; of West State of Law Violence; State Center to Prevent Ala Gun bama; Alaska; State of of Ari State Marylanders Violence, to Prevent Gun zona; Florida; Idaho; of State State of Incorporated; Brady Center to Pre Kansas; Louisiana; of State of State Violence; vent Gun State of New Michigan; Missouri; of of State State York; California; of State State of Montana; Nebraska; of State of State Connecticut; Hawaii; State of State of Mexico; of New of North State State Illinois; Iowa; of State State of Massa Dakota; Oklahoma; State of of State chusetts; Oregon; State of District of Carolina; of South State South Dako Columbia, Supporting Amici Appel ta; Texas; Utah; State of State of lees. Wyoming; State of Commonwealth of Kentucky; Youth Net Traditionalist No. 14-1945 LLC; work, National Rifle Associa United States Court of Appeals, America; Foundation; tion CRPA Fourth California; Circuit. Gun Owners of Colorado Shooting Association; State Idaho Argued: May Association; State Rifle & Pistol Illi Association; Rifle nois State Kansas February Decided: Association; League Rifle State Kentucky Sportsmen, Inc.; Nevada Coalition;
Firearms Association Jersey Clubs;
New Rifle & Pistol New Shooting Association; Sports
Mexico Association; York
New Rifle & Pistol Association;
Texas Rifle State Ver Sportsman’s
mont Federation
Clubs; Rifle Pistol Vermont & Associ
ation; America, Inc.; Gun Owners Foundation;
Gun Owners U.S. Justice
Foundation; The Lincoln Institute for Education;
Research and The Abra
ham Lincoln Foundation for Public Research,
Policy Inc.; Conservative
Legal Fund; and Education Defense Constitution;
Institute on the Con
gress Equality; of Racial National Policy Research;
Center for Public
Project 21; Pistols; Pink Women
Against Control; Gun The Disabled
Sportsmen America; of North Law Fund; Legal
Enforcement Defense Network;
Law Enforcement Action
Law Enforcement Alliance of Amer
ica; International Law Enforcement Association;
Educators and Trainers Association,
Western States Sheriffs’ Supporting Appellants,
Amici *4 Sweeney,
ARGUED: John Parker BRADLEY ARANT BOULT CUM- LLP, D.C., MINGS Washington, Ap- for Fader, pellants. Matthew John OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Woodward, Appellees. Sky BRIEF: ON T. Porter, III, Nardone, James W. Marc A. BRADLEY ARANT BOULT CUM- ta, Dakota, LLP, D.C., Bismarck, for Washington, Ap- for North Amicus MINGS Dakota; Frosh, E. Attorney of Scott Pruitt pellants. Brian E. General State North Oklahoma, Katz, Attorney L. Oklahoma Assistant General of Maryland, of Jennifer General, Oklahoma, City, OF THE AT- for Amicus State of Okla- OFFICE Attorney MARYLAND, homa; Wilson, Attorney of OF Alan General TORNEY GENERAL Columbia, Carolina, Carolina, Baltimore, Kyle for South Maryland, Appellees. South Carolina; PLLC, Bristow, LAW, J. BRISTOW for Amicus of South Martin State Jackley, of Clarkston, Michigan; Dyke, Attorney Jason General South Da- Van J. PLLC, kota, Pierre, Dakota, FIRM, for THE DYKE LAW South Amicus VAN ' Dakota; Abbott, Plano, Texas, Greg Amicus of At- for Traditionalist State South Texas, Austin, Texas, Network, Morrisey, torney for LLC. Patrick General of Youth Lin, Texas; General, Reyes, Amicus Attor- Elbert Solicitor State of Sean Attorney Blake, Utah, City, Utah, General, ney Pe- Lake Marie Erica N. General of Salt Julie Utah; terson, Dickey, Attor- for Peter K. Mi- Assistant Amicus State Gilbert chael, General, Attorney Wyoming, OF THE neys OFFICE ATTOR- General VIRGINIA, Cheyenne, Amicus Wyoming, OF WEST for State of NEY GENERAL Charleston, Attorney Virginia, Wyoming; Conway, Amicus West Jack General Frankfort, Virginia; Kentucky, Strange, Kentucky, Luther State of West Alabama, Kentucky. Amicus Attorney Montgom- General Commonwealth Alabama, H. ery, Cooper, Thompson, for Amicus State of Ala- Charles J. David *5 Patterson, Ohlendorf, bama; Geraghty, Attorney Peter A. D. C. Gen- John Michael Juneau, KIRK, PLLC, Alaska, Alaska, Washington, eral for Amicus COOPER & of D.C., Alaska; Horne, Thomas for Rifle C. Attor- Amicus National Associa- State of Arizona, Arizona, Michel, Phoenix, America, ney of of Inc. C.D. General Clinton tion Arizona; Barvir, Bondi, Monfort, for of Pam B. Anna M. MICHEL & Amicus State Beach, Florida, Tallahassee, ASSOCIATES, P.C., Long Attorney General of Califor- nia, Florida, Florida; Foundation, for Amicus State of Law- for Amici Gun CRPA California, Wasden, Attorney of Ida- Owners Colorado rence G. General of State ho, Idaho, Association, Boise, Shooting Amicus State for State of Ida- Idaho Rifle & ho;. Schmidt, Attorney Association, of Pistol Illinois State Rifle As- Derek General Kansas, sociation, Association, Kansas, for Rifle Topeka, Amicus State Kansas State Kansas; Caldwell, Inc., Attorney League Kentucky Sportsmen, of D. of Ne- James Louisiana, Coalition, Baton Rouge, General of Loui- vada Firearms Association of siana, Louisiana; Clubs, of Bill Jersey Amicus State New Rifle & Pistol New for Schuette, Association, Attorney Michigan, Shooting Sports General of Mexico New Association, Michigan, for Amicus of York & Pistol Tex- Lansing, State State Rifle Koster, Association, Attorney as State Vermont Michigan; Chris General Rifle Feder- Clubs, Missouri, City, Missouri, of for ation of and Vermont Sportsmen’s Jefferson Missouri; Fox, Rifle & Michael Timothy Amicus State of C. Pistol Association. Connel- Helena, FOUNDATION, Montana, Attorney ly, General of U.S. Ramo- JUSTICE Montana, Montana; na, California, for Amicus State of for Amicus U.S. Justice Foundation; Olson, Attorney Bruning, Jon General of Nebras- Robert J. Herbert W. ka, Lincoln, Nebraska, Titus, Olson, Miles, for of John S. Amicus State William J. Nebraska; Gary King, Attorney Morgan, of General Jeremiah L. WILLIAM J. OL- SON, Vienna, Mexico, Fe, Mexico, P.C., for Virginia, New Santa New for Amici Gun Mexico; Inc., America, Wayne Owners Gun Amicus State New Ste- Owners Foundation, nehjem, Attorney Foundation, General North Dako- U.S. Justice Illinois, Lincoln Institute for Research and Edu- Illinois, General of Chicago, for cation, Lincoln The Abraham Foundation Illinois; Amicus Miller,. State of Thomas J. Research, Inc., Policy for Public Conserva- Attorney Iowa, Moines, General of Des Fund, Legal Defense and Education tive Iowa, Iowa; for Amicus State Martha and Institute on the Constitution. Brian S. Coakley, Attorney General of Massachu- Koukoutchos, Mandeville, Louisiana; setts, Boston, Massachusetts, for Amicus Astrachan, B. James ASTRACHAN Massachusetts; Commonwealth of Ellen F. THOMAS, P.C., Baltimore, Mary- GUNST Rosenblum, Attorney Oregon, General of land, Amici Congress Equali- of Racial Salem, Oregon, for Amicus State of Ore- ty, Policy National Center for Public Re- Racine, gon; Karl A. Attorney General of search, Pistols, Project Pink Women Columbia, The District of Washington, Control, Against Gun and The Disabled D.C., for Amicus The District of Columbia. Sportsmen of North America. Dan Pe-M. Skaggs, Anthony Frasetto, J. Adam Mark terson, PETERSON, PLLC, DAN M. SAFETY, EVERYTOWN FOR GUN New Fairfax, Virginia, for Amici The En- Law York, York; Deepak New Gupta, Jonathan Fund, Legal forcement Defense Law En- Taylor, E. Neil K. Sawhney, GUPTA Network, forcement Action Law Enforce- PLLC, D.C., WESSLER Washington, America, ment Alliance International Everytown Amicus Safety. for Gun Law Enforcement Educators and Trainers Association, and States Western Sheriffs’ GREGORY, Before Judge, Chief Baum, Chicago, Association. Jonathan K. WILKINSON, NIEMEYER, MOTZ, Illinois, Ciani, Mark T. KATTEN MU- TRAXLER, KING, SHEDD, AGEE, LLP, York, CHIN ROSENMAN New KEENAN, WYNN, DIAZ, FLOYD, York, New for Amici Law Center to Pre- THACKER, HARRIS, Judges. Circuit Marylanders vent Gun Violence Violence, Prevent Gun Inc. Jonathan E.
Lowy, Kelly Sampson, BRADY CENTER *6 VIOLENCE,
TO PREVENT GUN Wash- D.C.; Schulder,
ington, Elliott Suzan F.
Charlton, Vora, Meade, Amit R. Catlin Kiehl,
Stephen COVINGTON & BUR- LLP, D.C., Washington,
LING for Amicus
Brady Center To Prevent Gun Violence. Underwood, General,
Barbara D. Solicitor Dasgupta, Deputy
Anisha S. Solicitor Gen-
eral, Platton, Claude S. Assistant Solicitor
General, Schneiderman, Eric T. Attorney York,
General of the State of New York;
Amicus of New State Kamala D.
Harris, California, Attorney General of
Sacramento, California, for Amicus State California; George Jepsen, Attorney Connecticut, Hartford,
General of Con-
necticut, Connecticut; for Amicus State of Suzuki, Attorney
Russell A. General of
Hawaii, Honolulu, Hawaii, for Amicus Hawaii; Madigan, Attorney
State of Lisa in wounded
killed and
least seventeen
(thirteen
2007)
Hood,
Fort
Texas
April
in
thirty wounded
killed and more than
2009),
Binghamton,
in
as well as
November
KING,
Judge:
Circuit
(thirteen
four wound-
York
killed and
New
morning of December
On the
center),
immigration
at an
April
ed in
Connecticut,
Newtown,
gunman
a
used
in
(six
Tucson,
killed and thir-
Arizona
rifle and de-
AR-15-type Bushmaster
an
a con-
January
in
2011 at
teen wounded
to murder
thirty-round magazines
tachable
meeting in
gresswoman’s constituent
in the
first-graders and six adults
twenty
lot).
parking
grocery store
Elementary School. Two addi-
Sandy Hook
other mass
response
In
to Newtown and
by gunfire, and
injured
were
tional adults
shootings,
duly
elected members
targeted
in the two
just
twelve children
fit to
Assembly Maryland
saw
General
not shot. Nine terrified
classrooms were
Safety
Firearm
Act of
enact the State’s
one of the classrooms
children ran from
(the “FSA”),
bans the AR-15
which
reload,
while
gunman paused
when
military-style rifles and shot-
and other
successfully hid
a rest-
youngsters
two
(referred
weapons”)
to as “assault
guns
other class-
Another child was the
room.
large-capacity magazines.
and detachable
all,
gunman
room’s sole survivor.
contest
plaintiffs
proceedings
these
rounds of ammunition
fired at least 155
constitutionality
pair
of the FSA with a
minutes, shooting each of his
within five
aimed
Amendment claims—one
Second
times.
multiple
victims
ban,
the other at
at the assault
Newtown,
and after
similar
Both before
mag-
prohibition against large-capacity
maga-
rifles and detachable
military-style
Amendment
plus
Fourteenth
azines—
perpetrate
used to
mass
zines have been
process
and due
claims.
equal protection
have
shootings
places
whose names
be-
summary judg
On cross-motions for
slaughters
with the
synonymous
come
ment,
distinguished judge
the District
Aurora, Colorado
occurred there —like
Maryland
August
ruled in
2014 that the
(twelve
fifty-eight
killed and
least
and thus awarded
FSA is constitutional
theater),
2012 in a movie
July
wounded
to the defendants. See Kolbe v.
judgment
(fourteen
Bernardino, California
and San
(D.
2014)
F.Supp.3d
768 Md.
O’Malley,
twenty wounded in
killed and more than
(the
plaintiffs’
“Opinion”). Addressing the
holiday
In the
party).
2015 at a
December
claims under the Su
Second Amendment
12, 2016, a
early morning hours of June
*7
decision in District
Co
preme Court’s
injured fifty-
forty-nine
killed
and
gunman
Heller,
570, 128 S.Ct.
lumbia v.
554 U.S.
Orlando,
nightclub
at the Pulse
three
(2008),
2783,
the district
Amendment to use arms for self- defense in the thereby home. We became I. only the first and appeals court of to rule that a on large- ban assault or A. capacity magazines deserves strict scruti- Meanwhile, ny. the panel affirmed the dis- The General Assembly Maryland plaintiffs’ trict court’s denial of the Four- passed 4, 2013, April FSA on the Gov- teenth Amendment claims. On March signed ernor it May into law that it panel’s decision was vacated in became effective several months later on entirety its grant our Court’s of rehear- provides October 1. The person FSA that a ing en banc in argu- this case. We heard may “transport neither an assault 11, 2016, May ment en banc on and the sell, into the State” nor “possess, offer to appeal ripe disposition. is now sell, transfer, purchase, or receive an as- below, explained As we are satisfied to Ann., sault weapon.” See Md. Code Crim. affirm the judgment, district court’s 4-303(a). § Law The banned weap- large part adopting Opinion’s cogent ons include “assault long gun[s]” and reasoning why as to the FSA contravenes 4-301(d). “copycat § weapon[s].” Id. neither the Second Amendment nor the an long gun FSA defines diverge Fourteenth. We from the district a rifle shotgun § “listed under 5- court on point: one notable conclude— We 101(r)(2) Article,” Safety the Public in- contrary to the now-vacated decision of our AR-15,” cluding the “Colt “Bushmaster prior panel the banned assault —that rifle,” semi-auto and “AK-47 all forms.” weapons and large-capacity magazines are *8 Ann., 4-301(b); § See Md. Code Crim. Law protected by not the Second Amendment. 5-101(r)(2). Ann., is, Safety § Md. Code Pub. That we are convinced that the banned The list prohibited shotguns assault rifles and large-capacity maga- among “specific zines are consists of those arms that are “like” assault or “weapons copies, regardless “M-16 their company are most of which rifles”— in military useful service”—which produced the Hel- and manufactured that assault Ann., Safety Pub. Md. Code weapon.” See added).1 (r)(2) (emphasis
§ 5-101 (v) that has a shotgun a semiautomatic stock; or folding definition separate a provides The FSA on a premised that is copycat for' a (vi) cylinder. revolving with a shotgun a characteristics, being than rather weapon’s Ann., § 4- Law Code Crim. See Md. firearms. In specific by a list identified 301(e)(1). long assault The FSA excludes weapon means: copycat a part, relevant 5- section guns enumerated —those (i) rifle that centerfire a semiautomatic 101(r)(2) Safety Article and the Public magazine a detachable accept can copy- of a the definition copies their —from following: any two of and has Ann., Crim. weapon. See Md. Code cat stock; folding a1. 4-301(e)(2).2 § Law flare grenade launcher 2. a magazines large-capacity banning launcher; or weapons, pro- the FSA along assault with suppressor; 3. a flash person may not manufac- that “[a] vides (cid:127) (ii) rifle receive, centerfire sell, sale, semiautomatic ture, purchase, offer capac- magazine a fixed with has magazine that has or transfer a detachable rounds; more than ity accept 10 rounds of am- of more than capacity Md. for a firearm.” See Code (iii) rifle that munition centerfire a semiautomatic 4-305(b). Ann., § A detachable than 29 Crim. Law length of less has an overall as “an ammunition magazine is defined inches; format; (xxviii) Manchester Arms shotguns specifically identi- The rifles and 1. MK-9; MK-45, (xxix) Mandell 5-101(r)(2) mostly "Commando” in section fied as banned — carbine; (xxx) Mossberg semi-auto TAC-1 rifles—are as follows: semiautomatic (xxxi) Bullpup shotgun; assault model 500 (i) Spectre Arms da Semiauto- American carbine; 6; (xxxii) Sterling P.A.W.S. Mark forms; (iii) carbine; (ii) in all AK-47 matic (xxxiii) folding Ruger stock model mini-14 semi-auto; (iv) type AR 100 Algimec AGM-1 caliber); (xxxiv) (.223 SIG assault 550/551 semi-auto; semi-auto; (v) type type AR 180 (.223 caliber); (xxxv) SKS with detach- rifle semi-auto; (vii) (vi) Austra- Argentine L.S.R. (xxxvi) magazine; Commando AP-74 able semi-auto; type Arms SAR lian Automatic semi-auto; (xxxvii) Springfield Armory type (viii) Thompson Ml and Auto-Ordnance SAR-48, G3, SAR-3, BM-59, sniper M-21 semi-automatics; (ix) light Barrett .50 Garand; rifle, MIA, excluding the Ml semi-auto; (x) type semi- Beretta AR70 cal. (xxxviii) sweeper type shot- Street rifle; (xii) auto; (xi) Bushmaster semi-auto (xxxix) shotgun in gun; Striker 12 assault M-900; (xiii) CIS M-100 and Calico models formats; (xl) type; Unique Fll semi-auto all semi-auto; (xiv) Claridge HI type SR 88 (xli) shotgun; Daewoo USAS 12 semi-auto CAR-15, carbines; AR-15, (xv) C-9 Colt TEC rifle; (xliii) (xlii) carbine or Val- UZI 9mm Spott- except Colt AR-15 and all imitations semi-auto; (xliv) Weav- met M-76 and M-78 rifle; (xvi) Daewoo MAX 1 er H-BAR carbine; or "Nighthawk” semi-auto er Arms 110C, K-l, K-2; AR MAX aka (xlv) Arms 9mm semi-auto "Ter- Wilkinson semi-auto; (xvii) Dragunov made Chinese ry-” (.223 caliber); (xix) (xviii) Famas semi-auto Ann., 5-101(r)(2). § Safety Code Pub. See Md. semi-auto; (xx) LAR and FN Feather AT-9 rifle; (xxi) Although "assault the'FSA also identifies FNC semi-auto FAL assault FN carbine; weapons, (xxii) pistol[s]” see Md. Code LAW as assault type F.I.E./Franchi Ann., 4-301(c), (d)(2), (xxiii) plain- § Steyr- Crim. Law shotgun; 12 assault and SPAS semi-auto; (xxiv) challenged prohibi- the FSA’s AR tiffs have not Galil models AUG-SA Thus, semi-auto; (xxv) against pistols. our discus- Heckler and tion ARM A3, A2, weapons is limited of the banned assault HK-94 A2 and sion Koch HK-91 HK-93 (xxvii) guns copycat weap- A3; (xxvi) long and those shotgun; to assault model 88 Holmes shotguns. are rifles and rifle in ons that Kalashnikov semiautomatic Avtomat *9 readily feeding Maryland. device that can be removed following day, The they re- requiring quested disas- a temporary from a firearm without restraining order court, sembly of the firearm action or without the from district seeking the to bar the tool, including car- defendants from enforcing challenged use of a a bullet or the 4-301(f). provisions § tridge.” Id. of the FSA once it took effect on October 2013. The court conducted a A person who violates the FSA is sub- denied, hearing on October and the re- ject prosecution imprison- to criminal and quested temporary restraining from order up years plus to three a fine not ment Thereafter, parties the bench. agreed $5,000. Ann., exceeding See Md. Code the court should proceed to resolve 4-306(a). § A longer prison Crim. Law litigation the merits of the on cross-mo- mandatory if a person term is uses an summary tions for judgment. weapon large-capacity magazine assault or felony the commission of a or crime of operative The Third Amended Com- violence, i.e., twenty years five to for a plaint, 22, 2013, filed on November asks violation, twenty years first and ten to for declaratory injunctive and It relief. al- § 4- subsequent each violation. See id. leges facially the FSA is unconstitutional 306(b). (1) respects: four the assault Amendment; ban contravenes the Second li- exceptions, Under the FSA’s “[a] (2) prohibition against large-capacity may censed firearms dealer continue to magazines also violates the Second sale, sell, possess, offer for or transfer an (3) Amendment; provision allowing re- long gun copycat weapon assault or a ceipt possession and of assault weapons lawfully the licensed pos- firearms dealer large-capacity by and magazines retired 1, 2013,” sessed on or before October and Maryland law enforcement contra- officers person lawfully has a possessed, “[a] who Equal venes the Protection Clause for, ari purchase completed appli- order or (4) Amendment; Fourteenth provi- purchase long gun cation to an assault or outlawing “copies” sion of the rifles and 1, 2013, copycat weapon before October (r)(2) shotguns enumerated section 5-101 may possess transport ... the assault Safety of the Public Article violates the long gun copycat weapon.” or Md. Fourteenth Amendment’s Due Process (3)(i). Ann., 4-303(b)(2), § Code Crim. Law by being vague provide Clause too ade- possession The not FSA does ban the of a quate proscribed. notice of the conduct Further, large-capacity magazine. explicitly receipt pos- FSA allows the plaintiffs Stephen include V. Kolbe weapon large- session or Turner, of.an Maryland and Andrew two resi- capacity by a magazine Maryland retired dents who have asserted would if law enforcement officer the assault purchase large-capac- large-capacity magazine or “is ity magazines but for the FSA. Other sold or person transferred plaintiffs Maryland are firearms dealers in agency law enforcement on retirement” and firearms-related associations: Wink’s purchased person “was or obtained Goods, Sporting Incorporated; Atlantic for official use with the law enforcement Guns, Incorporated; Associated Gun Clubs 4-302(7). § agency before retirement.” Id. Baltimore, Maryland Incorporated; Issue, Incorporated; Maryland Shall State B. Association, Incorporated; Rifle and Pistol 26, 2013, Foundation, September plaintiffs On National In- Shooting Sports Complaint corporated; Maryland filed their initial in the Licensed Fire- District *10 124 Staples Accord v. Unit Association, around the world. Incorporated.
arms Dealers 603, States, 600, 114 768, 511 U.S. S.Ct. F.Supp.3d 42 ed O’Malley, Kolbe v. See (1994) 2014) 1793, (observing 608 (D. that “a 128 L.Ed.2d (concluding Md. 774 n.3 AR-15 is the civilian version the prosecution “[t]he under threat of credible rifle, is, unless military’s M-16 individual standing on confers [FSA]” modified, Turner, “ju- weapon”). a semiautomatic and thus Kolbe and plaintiffs ... whether or not the is secure risdiction imparts evidence The State’s standing” (citing plaintiffs have additional II developed after AR-15 was World War Metro. Hous. Arlington Heights v. Vill. of military. designed It as a for the U.S. was 252, n.9, & 97 429 U.S. Corp., Dev. that can be fired selective-fire rifle—one (1977))). 555, 50 L.Ed.2d S.Ct. continuously (firing either automatic mode against claims are made plaintiffs’ depressed) or long trigger as the capacities: in their official four defendants (firing mode one round of semiautomatic Jr., of the Hogan, Governor Lawrence J. pull trigger for each of the ammunition Martin Maryland, as successor to State of fired, and, round is automatical- after each Frosh, E. the State’s O’Malley; Brian J. next). combat-style In test- ly loading the General, Douglas Attorney as successor it was “discovered ing conducted Pallozzi, Gansler; William M. F. Colonel squad even 5-man armed with that a 7- or Po- Secretary Department of the of State in hit- could do as well or better AR-15s Maryland of the Superintendent lice and ... than potential and-kill the traditional Police, as successor to Colonel Mar- State rifles,” squad armed with M14 11-man Brown; Maryland State L. cus rifles were the heavier selective-fire which refer to the defen- Police. We hereafter Army. in the by then used soldiers See collectively as the “State.” dants testing in Subsequent 930.4 field Viet- J.A. nam, “to revealed the AR-15 be
C. very weapon” combat that was lethal light ... for its size and recoil.” “well-liked 1. Reports testing from that indi- Id. 968. summary of its motion for support very high-velocity “the AR-15 cated that proffered extensive judgment, the State projectiles” “imputations had caused demonstrating uncontroverted evidence wounds, limbs, decapita- body massive by outlawed that the assault tions.” Id. exceptionally lethal FSA are years, Depart- the next few example A of the State’s evi- Within prime war.3 more than pro- purchased ment of Defense popular is that the most dence 100,000 Army rifles for the and the AR-15—is AR-15 hibited assault —the Force, military changed Air and the version of the simply the semiautomatic time, By “AR-15” to “M16.” military our and others name M16 rifle used 22, 2014, rulings rely August explain- we those on evidence By Opinion of affirm properly declined to exclude. summary judgment that the court ing its award of to the Architects, State, L.P. v. plain- Humphreys & Partners denied the the district court also Inc., Design, 790 F.3d Lessard exclude certain of the State's tiffs' motion to 2015). Kolbe, expert and fact evidence. See appeal, F.Supp.3d 777-82. In this _” plaintiffs challenge evidentiary rul- "J.A. refer to the the court’s 4. Citations herein to Appendix filed ings. the court did not abuse its contents of the Joint Because evidentiary rulings, parties appeal. making the in this discretion in already former Soviet Union was produc- cooling the barrel and providing the shoot- AK-47, which, ing the a selective-fire rifle er a grip.” “convenient Id. at 1121. Addi- *11 AR-15/M16, like the was tional developed military for of- features include folding and telescoping stocks, fensive use and has been mili- adopted by pistol grips, grenade launchers, night taries around the world. sights, Various firearms ability and the to accept companies bayonets have since manufactured civil- and large-capacity maga- zines. ian versions of the AR-15 and AK-47 that are semiautomatic but otherwise retain the Several manufacturers of the banned as-
military capabilities features and sault weapons, in advertising them to the fully automatic M16 and AK-47. Several market, civilian products’ tout their battle- other FSA-banned assault weapons are— prowess. field Colt’s Manufacturing Com- like the AR-15 and semiautomatic AK-47— pany boasts that its AR-15 rifles are man- semiautomatic versions of maehineguns ufactured “based on the same military initially See, designed military e.g., use. specifications standards and as the United (UZI rifles); J.A. 1257 and Galil id. at 1260 States issue Colt M16 rifle and M4 car- (“FN”) (Fabrique rifles); National assault bine.” See J.A. 1693. Bushmaster describes rifles). (Steyr id. at 1261 AUG Adaptive its Combat Rifle as “the ultimate military combat weapons system” that is The fully difference between the auto- specifically “[b]uilt for law enforcement matic and semiautomatic versions of those and tactical markets.” Id. at 1697. is, slight. firearms is That the automatic firing of all the ammunition in a large- short, fully like their automatic coun- capacity thirty-round magazine takes terparts, weapons banned assault “are seconds, about two whereas a semiauto- battlefield, firearms designed for the matic rifle can empty magazine the same the soldier to be able to shoot a large See, in as little as five seconds. e.g., J.A. number of rounds across a battlefield at a (“[S]emiautomatic weapons can be high speed.” rate of See J.A. 206. Their fired at rates of 300 per to 500 rounds design capability results “a for lethali- minute, making them virtually indistin- ty wounds, serious, more in more —-more guishable practical effect from machine- beyond victims—far that of other firearms Moreover, guns.”). police soldiers and offi- general, including other semiautomatic cers are often advised to choose and use guns.” Id. at 1121-22. fire, semiautomatic because it is more ac- Correspondingly, large-capacity curate and lethal than automatic fire magazines prohibited by the FSA allow a
many combat and law enforcement situa- shooter to fire more than ten rounds with- tions. reload, out having pause to and thus AR-15, AK-47, particularly semiautomatic “are designed and most suit- other assault banned military the FSA able for ap- law enforcement a designed have number of features plications.” magazines See J.A. 891. Such principal achieve their purpose “killing “designed to enhance” a shooter’s “ca- — disabling enemy” on pacity multiple the battlefield. to shoot human targets example, See J.A. 735. For very rapidly.” some of the Id. at 1151. Large-capacity common, banned assault incorporate magazines flash are a feature but not suppressors, designed which are to help unique, weapons, to the banned assault a position by many conceal shooter’s dispersing capable accepting of which are possess muzzle flash. Others magazines thirty, fifty, barrel or even 100 shrouds, “spray-firing” by which enable rounds. ban, Maryland had enact- and other exceptions, limited M16s
With
banned nationwide
machineguns
prohibiting
pistols
have been
a state law
ed
922(o)(l) (ren-
§
1986. See 18 U.S.C.
since
with a ca-
magazines
and the transfer of
any person
it “unlawful for
to trans-
dering
twenty
in excess of
rounds. The
pacity
possess machinegun”);
a
26 U.S.C.
fer or
regulated what the FSA
same state law
5845(b) (defining
“machinegun”
§
long guns by re-
now identifies as assault
shoots,
“any weapon
designed
which
an
quiring
purchasers
complete
first
shoot,
shoot,
readily
or can be
restored
application
undergo
background
shot,
automatically more than one
without
Maryland replaced that
law with
check.
*12
reloading, by
single
a
function of
manual
2013,
and
spurred
the
in
Newtown
FSA
time,
trigger”). By
private
that
the
shootings.5
other mass
machineguns was substantial-
ownership of
accepting
The State has calculated that —
heavy
of
taxes
ly circumscribed as a result
that there were at
plaintiffs’
estimate
regulations imposed
fifty
almost
and strict
weap-
million
assault
least 8
FSA-banned
by the National Firearms Act
years earlier
ons in circulation in the United States
Miller,
v.
of 1934. See United States
than
weapons comprised
2013—those
less
174,
816, 83 L.Ed.
U.S.
3% of the more than 300 million firearms
(1939) (outlining 1934 Act’s requirements
Moreover,
country.
premised
in
on the
this
firearms,
transferring
registering
and
that owners of the
plaintiffs’ evidence
shotguns and ma-
including short-barreled
weapons possessed
assault
an av-
banned
chineguns,
rejecting
and
Second Amend-
2013,
in
has
erage of 3.1 of them
State
thereto).
challenge
There have also
ment
reckoned that less than 1% of Americans
prohibitions
and local
been various state
year.
owned such
and trans-
against
receipt, possession,
machineguns.
fer of
time, according
At
to the
the same
evidence,
State’s
the FSA-banned assault
1994, Congress
In
enacted a ban on
disproportionate-
used
weapons have been
military-style.weap-
certain semiautomatic
shootings
in
ly
ownership
to their
mass
magazines capable
holding
ons and
offi-
and the murders of law enforcement
than ten rounds. The federal ban
more
frequently,
cers. Even more
such incidents
only
maga-
and
applied
weapons
to assault
large-capacity magazines.
have involved
13,
September
zines manufactured after
study
sixty-two
shootings
One
mass
be-
1994, however,
expired
and it
a decade
2012,
example,
tween 1982 and
found
September
on
2004. Just months
later
Congress passed
perpetrators
the 1994 federal
were armed with
before
maga-
Christopher Koper,
respect
large-capacity
5. Dr.
a social scientist
362. With
"LCMs,”
zines,
who has studied the effects of the
feder-
their
or
the FSA does not bar
ban,
weapons
explained
al
in these
(Contin-
assault
transport
Maryland,
into
but "is still
proceedings that the federal
had several
ban
ban,
ued)
stringent
more
than the federal
may
efficacy
have limited its
and
features
only
possession
which not
allowed the
present Maryland’s
that are not
in
FSA. One
LCMs,
(i)
existing
importation
but also:
feature was the federal ban’s broader
such
large
stocks of LCMs from other
for sale
clause, rendering
prohibi-
"grandfather”
its
countries;
sale, transfer,
(ii)
ongoing
applicable solely
weapons
tions
to assault
receipt
existing
of both
stocks of LCMs
large-capacity magazines manufactured after
newly-imported
LCMs.” Id. at 363.
September
effective date of
the ban’s
ban, Koper’s
weapons
in
The federal assault
contrast,
grandfathers only
the FSA
words,
preclude
"did not even
individuals
prior
assault
date,
owned
to its effective
gun
going
store around the corner
from
sale,
and "does not allow
further
magazine].”
purchase
[large-capacity
Id.
transfer,
receipt
or
of those firearms.” See J.A.
depriving
rifles in 21% of the massacres and while
victims and law enforce-
magazines in
large-capacity
with
50% or
opportunities
ment officers of
escape
(as it
to the
more
was unknown
research-
overwhelm the shooters while
reload
large-capacity magazines
ers whether
were
their
in
weapons. Even
the hands of law-
cases).
many
involved in
Another
citizens,
abiding
large-capacity magazines
study determined that assault weapons,
particularly dangerous.
The State’s ev-
including long guns
handguns,
were
that,
idence demonstrates
when inade-
on-duty
used
16% the murders of
law quately trained civilians
fire
enforcement officers in
and that
equipped
large-capacity magazines,
with
large-capacity magazines were
used
31% they tend to fire more rounds than neces-
to 41% of those murders. The banned as-
sary and
endanger
bystanders.
thus
more
sault
have also been used
other
has
State
also underscored the lack
crimes, including the infamous “D.C. Sni-
of evidence that the banned
weap
per” shootings
which an AR-15-
large-capacity magazines
ons and
are well-
type Bushmaster rifle was used to kill and
suited to self-defense.
plain
Neither the
critically injure more than a
ran-
dozen
*13
Maryland
tiffs nor
law
victims,
enforcement offi
domly
including
in
selected
several
identify
single
cials could
a
Maryland.6
incident in
Marylander
which a
military-
has used a
that,
emphasized
The State has
when
style rifle
shotgun,
to fire
or.needed
weapons
large-
the banned assault
rounds,
more
protect
than ten
herself.
used,
capacity magazines are
more shots
Although self-defense is a conceivable use
injuries
are fired and more fatalities and
of the
weapons,
banned assault
the State’s
result than when shooters use other fire-
evidence reflects —consistent with the Su
magazines.
arms and
The banned assault
preme Court’s Heller decision—that most
weapons
pose heightened
further
a
risk to
keep
individuals choose to
other firearms
in
civilians
that “rounds from assault
purpose.
for that
See District
Columbia
weapons
ability
easily pene-
have the
570, 628, 128
v.
554 U.S.
S.Ct.
in
trate most materials used
standard
(2008)
construction,
doors,
(emphasizing
For their enable shooters to inflict mass casualties 650. las, later, Tragic involving weapons days July
6. events assault Texas. Just ten on 7, 2016, July 2016,' continue to occur. On a shooter another armed with a semiauto- shooter a armed with semiautomatic assault rifle police matic assault rifle shot six officers killed five law enforcement and in- officers Louisiana, Rouge, killing three of them. Baton others, civilians, jured plus nine two in Dal- every FSA, rounds —would for gar- fifty, or 100 of the the State support rounds fired afford showing prohibi- that the nered evidence large- against tions bystanders to nine more chances for six magazines promote public will capacity during to intervene or law enforcement availability of those safety by reducing the firing, six to nine more pause a go wrong to mass shooters and other with something armaments chances for criminals, especial change, their a six to nine by diminishing magazine during a officers, to have more chances for the shooter threat to law enforcement changing magazine a problems quickly unintentional misuse ci- hindering their and six to nine pressure, under intense expect does not FSA vilians. State victims to potential more chances for accidents, gun all crimes and to eradicate safety during pause firing. find to curtail those that result but rather more fired and more deaths shots Thus, justified .and 266. the State has See J.A. injuries they are committed with because ground limiting the FSA on the magazines. military-style firearms and magazine to a ten-round could shooter difference between life and “mean the that the evidence indicates The State’s many people.” Id. death for availability will reduce FSA large-capacity banned assault by “reducing criminals their magazines to plaintiffs pur- have part, For their That is availability overall.” See J.A. 228. evidence ported dispute State’s usually fire- criminals obtain their because equating FSA-banned through purchases, by buying straw arms M16, produced but have not evi- with market, secondary byor steal- them on the *14 actually demonstrating dence .that law-abiding persons, and ing them from danger- weapons banned assault are less simply most criminals “are not dedicated materially distinguishable from ous than or enough particular to a of firearm or type Otherwise, military plaintiffs arms. go great lengths acquire to to magazine emphasized popularity have something readily that not available.” Id. weapons, particularly banned assault at 282. AR-15, AK-47, and their semiautomatic Those are often referred copies. pointed impor- also to an The State has evidence, in by plaintiffs, and their (where from tant lesson learned Newtown sporting as “modern rifles.” run from a nine children were able to targeted gunman classroom while the mentioned, plaintiffs previously As change large-capacity out a thir- paused to that there were at least 8 have asserted (where ty-round magazine), Tucson weapons in million FSA-banned assault finally tackled and restrained shooter was by in circulation the United States firearm), by bystanders reloading while his AK-47 ac- Rifles based on the AR-15 and (where mag- and Aurora a 100-round drum 20% of firearm approximately counted for emptied any significant 2012, azine was without in in the States and the sales United is, firing). reducing break in the That weapons comprised be- banned assault of rounds that can be fired without regulated number and 30% of all fire- tween 18% reloading increases the odds that lives will in Maryland arm transfers in 2013. The that, shooting. in a For exam- since it spared plaintiffs’ be mass evidence reflects maga- public to the ple, a shooter’s use of ten-round was first marketed popular the most thirty, zines—rather than those that hold AR-15 has become “[t]he America, design assailant, civilian rifle and is her rendering paramount it “of in many by many compa- importance made variations 'quick [she] have ready nies.” See J.A. 2259. access to ammunition in quantities sufficient provide a meaningful opportu- plaintiffs The have also focused on the nity to defend herself her loved and/or popularity of large-capacity magazines, ones.” See J.A. 2123. tendering evidence that the United To theory that the refute.the FSA will States between 1990 and magazines effectuate Maryland’s goal of protecting capable holding of than more ten rounds its officers, citizens and law enforcement million, numbered around 75 or 46% all plaintiffs pointed have variety magazines pistols owned. Most are manu- example, evidence. For the FSA does not magazines factured with holding ten to Sporter disallow the Colt AR-15 H-BAR rounds, many seventeen popular rifles rifle, plaintiffs’ which the sug- evidence are manufactured with magazines holding gests “could be made into a compact twenty thirty capable rounds. Firearms lightweight AR pattern short-barrel rifle firing more than ten rounds without identical to the restricted models” while reloading may have existed since the late remaining “exempted from the restric- sixteenth century, magazines with a tions of the law.” See J.A. 2270-71. The capacity of between ten twenty rounds plaintiffs’ evidence also indicates have been on the civilian market for more rounds from prohibited firearms not by years. than a hundred capable the FSA are penetrating build- plaintiffs Individual Kolbe and Turner ing body armor; materials and soft have averred that wish to own banned “[t]he banned firearms are almost never and large-capacity maga- crimes”; that, used “in there was zines for plaintiffs self-defense. The have greater probability person that a in the generally many more asserted that owners United States would be killed someone cite home protection as strangling them than an assault rifle in keeping a reason for those weapons, along shooting”; a mass and that offi- “[m]ore with purposes hunting other lawful such as cers are killed car accidents than with competitive marksmanship.7 plain- the banned firearms.” See id. at regard tiffs large-capacity magazines as 2280-81, Additionally, plain- 2871-97. *15 especially self-defense, useful for because that, emphasized tiffs have because the it is difficult for a civilian change to a prohibit FSA does not the possession of magazine while under the of defend- stress large-capacity magazines, a criminal can ing family herself and her from an unex- legally purchase magazines those in an- Moreover, pected attack. firing civilian other state and return with them to Ma- frequently rounds self-defense will ryland.8 miss argument, you
7. Prior to the en banc we primarily hunting, allowed think were sold target-shooting personal-(Continued) plaintiffs supplemental pro- the and appendix to file a purposes.” respon- tection See J.A. 3063. The containing reports published two in 2015 dents indicated that "think” between (the Shooting Sports the National Foundation "AR-style/modern sport- and 28.1% ing 30.5% "NSSF”), including a "Firearms Retailer Sur- primarily personal rifles” were sold vey Report” outlining the results of an online however, protection. report, Id. The NSSF survey of more than 500 firearms retailers why respondents does not reveal the “think” country. across the Relevant to the issue of that. self-defense, survey question one asked: "Of your year annual firearm sales each [for from attacking Maryland's justification 8. Further 2014], please report 2011 to percentages the FSA, plaintiffs for the the have endeavored to — zines, however, subject to the FSA is
II.
intermediate
readily
and
survives—the
appeal,
plaintiffs
the
contend
On
Consequently,
scrutiny standard of review.
ruling
district court erred
that the
claims,
Amendment
we
as to the Second
parties’
the
cross-
of the State on
favor
court’s award
must affirm the district
summary judgment.
spe
More
motions for
to the
summary judgment
State.
of the
plaintiffs
the
seek reversal
cifically,
and en
summary judgment award
adverse
A.
review
judgment in their favor. We
try of
summary judg
court’s
novo the district
de
“A
provides,
Amendment
The Second
Party
Libertarian
ment decision. See
Militia,
to
being necessary
regulated
well
Judd, 718 F.3d
Va. v.
State,
right
the
security
the
free
2013).
motion,
respect to each side’s
With
Arms, shall
people
keep
to
and bear
facts and all
required to view the
“we are
Const, amend.
infringed.”
not be
See U.S.
arising therefrom in
justifiable inferences
Columbia v.
II.
District of
nonmoving
to the
light
most favorable
Supreme
recognized that
Second
Court
whether
party,
in order
to determine
prefatory
is divided into a
Amendment
as to
genuine dispute
is no
‘there
(“A
Militia, being
regulated
clause
well
to
fact and the movant is entitled
material
State,
security of a free
necessary to the
”
a matter of law.’ Id. at 312-
judgment as
(“...
”)
operative
...
and an
clause
56(a)).
Fed. R.
P.
(quoting
Civ.
Arms,
people
keep
to
and bear
right
infringed.”). See 554 U.S.
shall not be
III.
2783,
tion,”
announced,
the Heller
on,
Court
is “the
Continuing
the Heller
speci-
Court
right
law-abiding, responsible
citizens to
“weapons
fied that
that are most useful in
use arms in defense of hearth and home.” military service—M-16 rifles and the
634-35,
See
tion
clarify
“to
the entire
554
not intended
unconstitutional. See
was
to be
the home
jurispru
Amendment
628-29,
2783. Without
field” of Second
128 S.Ct.
U.S.
635,
133
II”);
City Chicago,
ler
Ezell v.
651 F.3d
terest.” See United States v. Mascianda
(7th
684,
2011);
ro,
(4th
703-04
Cir.
458,
United States
638 F.3d
2011);
471
Cir.
see
(10th
Reese,
792,
v.
627 F.3d
800-01
Chester,
(“[T]he
Cir.
also
To
strict scrutiny,
inside-the-home regulation would be sub
government
prove
ject
must
scrutiny,
chal
to strict
and we described
lenged
“narrowly
law is
tailored to
plaintiff’s
achieve
related —and unsuccessful—
compelling governmental
interest.” See
right
contention that “the
to arm
oneself
Johnson,
74, 82,
Abrams v.
521 U.S.
public
equal
on
footing
[is]
with the
(1997).
S.Ct.
home,
dening
right
the
recognized that
ruling,
In so
the court
also,
v. Hos
790.
States
e.g., United
home. See
2016)
quintessential
not ban the
the FSA “does
F.3d
ford, 848
self-de-
handgun
for
scrutiny
weapon
to a fire
strict
(declining
apply
—used
—the
“prevent
home” or
an individ-
only con
fense
the
“addresses
that
prohibition
arms
home,”
a
keeping
ual from
suitable
the
without
occurring outside
duct
Finally,
home'.”Id. at 790.
scrutiny applies
protection
the
strict
deciding if or when
home).
scrutiny
the intermediate
stan-
applying
the
reaching
a law
inside
dard,
recognized that
the
Opinion
interest
Maryland possesses
B.
an
State
just
compel-
substantial —but
that
is not
to Sec-
two-part approach
our
Guided
safety
and
ling:
providing
public
—“in
claims,
lacking prece-
but
Amendment
ond
A
crime.” Id. at 792.
reasonable
preventing
Supreme
or the
Court
dent of this Court
that interest and the FSA was
fit between
constitutionality of a law
examining
shown,
by evi-
according
Opinion,
to the
FSA,
to the
the dis-
substantively similar
that
heightened
risks
dence
analysis by question-
began its
trict court
weapons
large-capacity
and
banned assault
weapons
the banned assault
ing whether
pose to civilians and law en-
magazines
protect-
are
large-capacity magazines
Ac-
See id. at 793-97.
forcement officers.
Addressing
Amendment.
by the Second
ed
court concluded that
cordingly, the district
Opinion
particular,
“does not violate the Second
the FSA
to find
court’s “inclin[ation]
disclosed the
Amendment.” Id. at 797.
Amend-
weapons fall outside Second
dangerous and unusu-
protection
ment
analysis,
the district court relied
its
[they]
that
al,”
on
doubts
“serious[ ]
based
District
on the 2011 decision of the
part
pur-
commonly possessed for lawful
are
in Heller II. The Hel-
of Columbia Circuit
in the
self-defense
poses, particularly
II court
the District’s
ler
assumed
O’Malley, 42
Kolbe v.
home.” See
against military-style assault
prohibitions
2014).
(D.
The
Md.
F.Supp.3d
im-
large-capacity magazines
rifles
that, “[g]iven
further observed
Opinion
upon the Second Amendment
pinge
like the AR-15 are es-
that assault rifles
under the inter-
upheld
and then
bans
of M-
sentially
equivalent
the functional
scrutiny standard. See 670 F.3d at
mediate
more effective—the
arguably
16s—and
After the district court issued its
1261-64.
that M-16s could be
[reasoning of Heller
on the AR-15 and
Opinion, statewide bans
dangerous and
would
unusual]
banned as
AK-47,
weap-
other assault
semiautomatic
(citing
n.29
here.” Id. at 789
apply
seem
ons,
large-capacity magazines
New
2783).
554 U.S.
similarly sus-
York and Connecticut were
however,
2015 deci-
court
tained
the Second Circuit’s
Ultimately,
the district
Pistol Ass’n.
sion in N.Y. State
&
to assume that the banned
elected
Rifle
There,
appeals proceeded
“on
the court
large-capacity magazines
challenged]
laws
assumption
[the
constitutionally protected, and thus
by the Second
weapons protected
ban
“places
some burden on
Sec-
FSA
Amendment”;
Kolbe,
“that intermedi-
determined
right.”
Amendment
ond
strict,
ate,
scrutiny
appro-
rather than
F.Supp.3d
Opinion
then identi-
“that New York
priate”; and concluded
scrutiny
appropri-
intermediate
as the
fied
review,
adequately
have
estab-
the FSA and Connecticut
ate
because
standard
relationship between
seriously impact person’s
abili-
lished
substantial
“does not
prohibition
of both semiautomatic as-
C.
large-capacity maga-
sault
We could resolve the Second Amend-
important
indeed, compel-
zines and the
—
aspects
ment
of this appeal by adopting
ling
in controlling
interest
crime.”
—state
the district court’s sound analysis and
Ass’n,
See N.Y. State
& Pistol
Rifle
thereby follow the lead of our distin-
257, 260,
Supreme
F.3d at
264. The
Court
guished colleagues on the Second and Dis-
*20
recently denied the Connecticut plaintiffs’
is,
trict of Columbia Circuits. That
we
petition for a
of
writ
certiorari
in that
simply
could
assume that the
weap-
assault
—
Malloy,
——,
matter. See
v.
Shew
U.S.
ons arid large-capacity magazines outlawed
(2016).
2486,
136 S.Ct.
779 F.3d 998-99
Thereafter, City High Friedman v. Park, land the Seventh upheld pro Circuit against weapons
hibitions assault and On the issue of whether the banned large-capacity magazines, weapons albeit without and large-capacity maga applying protected by either intermediate or strict scru zines are the Second Amend tiny. ment, “in reasoning, Under Friedman’s the Heller decision raises various trying stead of to decide what questions. many ‘level’ of Those include: How as works,” scrutiny applies, weapons and how it it is large-capacity maga sault regulation more suitable “to ask whether a zines must there be to consider them “in weapons bans that were common at the common use at the time”? In resolving issue, time of ratification or those that some should we many have focus on how relationship reasonable to the preservation large-capacity maga efficiency militia, owned; or regulated of a well zines are or many on how owners are; and whether law-abiding many citizens retain ad there or on how of the weapons equate merely means of self-defense.” 784 magazines are circulation? Cir.) (internal 406, F.3d 410 quotation magazines Do we count the — omitted), denied, marks in Maryland only, cert. U.S. or in all of the United -, “in being S.Ct. L.Ed.2d 483 States? Is common use at the (2015). being “typically time” coextensive with 1948) (2d ed. Dictionary 1431 law-abiding citizens for law national
possessed
same, or
“[h]aving
as
(defining
the assault
“like”
purposes”?
ful
Must
same,
or
possessed
appearance, qualities,
magazines
nearly
be
and'large-capacity
or,
similar”);
partic
characteristics;
more
The New
purpo.se[
“lawful
]”
Oxford
2005)
(2d
importantly,
“protection
Dictionary
ed.
ularly and
American
being “in
family”? Is not
same char-
(defining
“having
one’s home and
“like” as
to”).
as;
at the time” the same
Al-
qualities
common use
similar
acteristics
unusual”? Is the
“dangerous
fully
being
capable
M16 rifle is
though an
unusual,” or
it
“dangerous and
standard
fire and the AR-15 is limited
automatic
(two
See Hel
actually “dangerous or unusual”?
fire,
fire
their rates of
semiautomatic
ler,
seconds,
554 U.S.
re-
and as little as five
seconds
2783;
N.Y. State
& Pistol
see also
thirty-round maga-
empty
spectively,
Rifle
254-57; Friedman,
Ass’n,
Moreover,
804 F.3d at
zine)
nearly
identical.
*21
997-98;
408-10; Fyock, 779 F.3d at
F.3d at
situations,
many
the semiautomatic fire of
II,
at 1260-61.
Heller
670 F.3d
and lethal than
an AR-15 is more accurate
Otherwise,
an M16.
the automatic fire of
however,
not an-
Thankfully,
we need
military
the AR-15 shares the
features—
today,
questions
all
difficult
swer
those
characteristics —that
very qualities
with a
presents
Heller also
us
because
devastating
a
and lethal
make the M16
relatively easy inquiry: Are
dispositive and
war.
weapon of
weapons
large-
assault
banned
rifles,”
“M-16
capacity magazines “like”
event,
rely solely on
any
we need not
i.e.,
in mili-
“weapons that are most useful
definitions,
dictionary
because Heller itself
service,”
tary
and thus outside the ambit
it means to be “like” the
expounds on what
at
Amendment? See 554 U.S.
of the Second
it,
plaintiffs
have Heller
M16. As
would
to that
Whatever very rapidly”; “contribute to unique AR-15, including self-defense—the other function of assault to deliver weapons, large-capacity maga- assault -and extraordinary firepower”; and are prohibited by unques- zines the FSA are “uniquely military of both the feature[]” tionably military most useful in service. banned and other fire- is, That banned they may arms to which be attached. See designed enemy” “kill[ ] disabl[e] id. on the battlefield. The very See J.A. 735. qualify
features that
a firearm as a banned
Because the
banned assault
*22
assault
suppres-
as flash
and large-capacity magazines
clearly
are
—such
sors,
shrouds, folding
barrel
telescop-
service,
military
most useful in
we are
stocks,
launchers,
ing
pistol grips, grenade
compelled by Heller
to recognize that
night sights,
ability
bayo-
and the
to accept
weapons
those
magazines
are not con-
nets and large-capacity magazines
stitutionally protected.
basis,
On that
we
—“serve
specific, combat-functional ends.”
at
See id.
the district court’s award of sum-
affirm
“[tjhe
And,
1120.
net effect of
mili-
these
mary judgment in favor of the State with
tary
capability
combat features is a
respect
plaintiffs’
to the
Second Amend-
wounds,
lethality
serious,
more
in ment claims.12
—more
support
Supreme
11. As further
for the
Court's
should be taken to cast doubt on [certain]
longstanding prohibitions”).
purported
fully
But the issue ac-
line between
automatic and
tually
firearms,
Staples
before us is one that the
Court
plaintiffs rely
semiautomatic
on
Whether,
did not address:
because of its like-
States,
600,
Staples v. United
511 U.S.
rifle,
ness to the Ml6
the AR-15 lacks Second
1793,
(1994). There,
S.Ct.
[a]t
overall,
their availabil-
ban,
the FSA will curtail
semiauto-
assault-weapons
federal
in
their use
ity to criminals and lessen
weapons have been under-
assault
matic
crimes, and firearms
used,
shootings,
mass
other
unusual risks. When
pose
stood
accidents.
in more
weapons tend to result
these
wounds,
wounds,
serious
more
numerous
As
judgment
made
the.General
These
are
more victims.
and
is
sembly Maryland
enacting
of
in
FSA
crime,
in
and
used
disproportionately
legisla
precisely
type
judgment
shootings
in criminal mass
particularly
to make without second-
tures are allowed
They
are
attack
Newtown.
like the
is,
by a court. That
is
guessing
“[i]t
to kill law
used
disproportionately
also
ours,
job,
weigh
con
legislature’s
not
officers.
enforcement
judg
flicting
policy
evidence and make
Woollard,
at
Ass’n,
712 F.3d
881
ments.” See
Pistol
N.Y. State
&
See
Rifle
Westchester,
(footnotes
Kachalsky Cty.
v.
omitted);
(quoting
see also id.
F.3d
(2d
2012)). And,
81, 99
“we
(“The
701 F.3d
Cir.
suggests
evidence
at 263
record
deference to the
must ‘accord substantial
may present
magazines
large-capacity
”
legislature].’
predictive judgments
[the
dangers to crime and violence
greater
even
Ass’n v.
See Satellite Broad. & Commc’ns
alone,
part
be
than assault
2001)
FCC, 275 F.3d
prevalent
more
and can be
cause
FCC,
Inc. v.
(quoting
Sys.,
Turner Broad.
weapons and
used in both assault
and are
622, 666, 114 S.Ct.
512 U.S.
alteration,
(footnote,
weapons.”
non-assault
/”)).
(1994) (“Turner
Our obli
L.Ed.2d 497
omitted)).
marks
quotation
internal
and
that,
“to
in formu
gation
simply
assure
fault
Although
plaintiffs
the FSA
legislature] has
lating
judgments, [the
its
the firearms most used
targeting
not
inferences based on sub
drawn reasonable
thereby
promising
and for not
crime
I,
Turner
512 U.S.
stantial evidence.” See
overall,
Maryland
gun crimes
reduce
2445;
666, 114
accord Turner
S.Ct.
Rather, as
purpose.
that is not the FSA’s
180, 195,
FCC,
Sys.,
Broad.
Inc. v.
520 U.S.
it,
primary
the State has described
(1997)
141 (internal Maryland’s in protecting omitted). FSA and interest quotation marks And, That public safety. is our alternative basis entirely it is an irrelevance if “some affirming the district court’s award of court concludes [an AR-15 other banned summary judgment in favor of the State weapon] militarily has useful features or is respect plaintiffs’ with to the Second dangerous too possess.” civilians to Id. Amendment claims. at 157. test, Under popularity dissent’s
D.
whether an arm is constitutionally protect-
are
approach
We
confident that our
here
depends
ed
not on the
danger-
extent of its
entirely
ousness,
faithful
is
to the Heller decision
widely
but on how
it is circulated
appropriately protective
and
of the core
law-abiding
by
citizens
the time a bar on
contrast,
right.
Second Amendment
In
our
private possession
its
has been enacted
dissenting colleagues
expand
Consider,
would
challenged.
for example,
protection
exception-
constitutional
to even
short-barreled shotguns
machineguns.
ally
lethal
of war and then decree But for the statutes that have long circum-
scrutiny
that strict
applicable
any
possession,
scribed their
they too could be
prohibition against
possession
of those
sufficiently popular to find safe haven in
protected weapons
or other
in the home.
the Second Amendment. Consider further
bottom,
At
the dissent concludes that the
a
extraordinarily
state-of-the-art and
lethal
popularity
so-called
weapon.
banned assault
new
That
weapon
new
would need
by
were owned
only
less than
prior
be flooded on the market
any
—which
1% of Americans
recently
governmental
as 2013—
prohibition in order to en-
by
inhibits
efforts
the other 99% to
protection.
sure it constitutional
stop those weapons
being
again
from
used
out,
As the
points
dissent
the same con-
again
perpetrate
slaughters.
mass
popularity
cerns about the
test were raised
simply
agree.
cannot
We
by
Breyer
four-justice
Justice
in his
Heller
Heller,
post
(citing
dissent. See
at 153
720-21,
J.,
(Breyer,
U.S. at
To start the dissent dissenting)). dissenting colleagues’ would extend our view, protection majority Second Amendment to each and obviously “the Heller was every dissent],” weapon sufficiently popu Breyer’s deemed unmoved [Justice lar—no dangerous indicating matter how violent or thus adopted Heller (Trax- post however, is. See popularity Actually, 152-60 test. Id. Jus- ler, J., Therefore, dissenting). Breyer simply expressed it is some tice that it was significance how of majority immense to the dissent not “at all clear to how the [him] that, “in of AR- AK- number decides which loaded ‘arms’ a homeowner style weapons may manufactured imported keep,” explained why and then he popularity into the United States was than dou more is not standard that makes Heller, 720-21, commonly ble the number of the most sold sense. See U.S. U.S., J., (Breyer, dissenting).15 vehicle the Ford F-150.” Id. at S.Ct. 2783 that, Breyer’s explained reasoning.” 15. Justice dissent un- 554 U.S. at test, J., popularity majority (Breyer, dissenting). popu- der the "the deter- S.Ct. 2783 regulations permissible by larity mines what test also has been characterized as "cir- Circuit, looking existing regulations per- to see what the Seventh which conclud- cular” mit,” although say "[t]here is no basis for believ- ed that “it would be absurd to that the ing why particular weapon that the Framers intended such circular reason can be *26 seeking impugn ruling our on Sec- Meanwhile, majority said the Heller . the dissent ac- protection, ond Amendment sponsoring it to confirm that was nothing majority laundry of a list cuses the en banc Nevertheless, our dis- popularity the test. improp- That list includes of misfeasance. support also claim senting colleagues up “a heretofore unknown erly conjuring two- test from the recent popularity the ” question the firearm in ‘test’ of “whether Caetano, in justice concurring opinion military in flout- ‘most useful service’ is that, Heller, “the propounded under which an by affording neither ing “basic fairness” ir- dangerousness weapon of a is relative opportunity parties (particularly to the weapon belongs to a relevant when the squarely “to meet the issue” nor plaintiffs) commonly used for lawful class of arms. court to address remanding for the district Caetano, at 1031 See 136 S.Ct. purposes.” instance; employing in the first the issue (Alito, J., concurring judgment). in the Of “military opinion” to conclude that our own course, reading that of Heller failed large-capacity majority in garner a Court Caetano. by Maryland’s FSA magazines prohibited constitutionally protected; and are not reject interpretation We summary judgment “abandoning] by dissenting our col Heller embraced based reaching] standard and a conclusion leagues incompatible because it is with favorable light on facts viewed most Hellers, dispositive pronounce clear post at 155-56 & nn.4-5. to the State.” See pro is no Amendment ment: There Second like,” i.e., and the tection for “M-16 rifles are respect, With all those accusations military useful in “weapons that are most entirely Although ruling our ón unfounded. at See 554 U.S. 128 S.Ct. service.” may protection Amendment seem Second incongruous say 2783. It would be quarters, solidly predi- it is novel some exception weap an for such Heller makes plain language cated on the of Heller and is, sufficiently That they popular. if are ons argued by the State both was raised today to re although we do not endeavor proceedings ap- and this the district court questions the difficult raised Hel solve Specifically, note 10. peal. supra See interplay of “in common concerning ler consistently asserted that —be- State has time,” “typically possessed by use at the weapons and cause the banned assault purposes,” law-abiding citizens lawful “like” “M-16 large-capacity magazines are unusual,” “dangerous military see id. ser- rifles” and “most useful 625, 627, entirely “dangerous we are are and unusual vice”— weapons” beyond that the correct answers to such the reach of the Second convinced and do not culminate in Amendment. 554 U.S. at inquiries cannot See 2783; Appellees see also Br. of popularity the dissent’s test.16 S.Ct. it, typically pos- banning banned is that there is a statute so because no such law-abiding today. post commonly A citizens See that it isn’t owned. law’s exis- sessed specifically constitu- identifies tence can’t be source its own at 156-57. The dissent validity.” Friedman, mortars, bazookas, "Gatling guns, 784 F.3d at etc.” and tional could claim these items asserts that "no one commonly possessed for Second were ever purposes.” Id. at 156. But the Amendment reject theory 16. We must the dissent’s also test, that, militarily list of useful popularity dissent's consistent with the very a critical omission: the categorically makes Heller Court could exclude large-capacity magazines military weapons and “weapons most useful satisfy popularity protection, test. from Amendment the dissent insists service” Second
143 2-4, 16-23; Supp. Defs.’ Mem. in of Summ. cast adequately evidence helpful to their 3-10, 32-37, O’Malley, at Kolbe v. No. Meanwhile, J. cause. the State’s evidence (D. 14, 2014), 1:13-cv-02841 Md. Feb. ECF readily establishes that the banned assault very argument No. 44. That was acknowl weapons and large-capacity magazines are edged and discussed both the district service, most useful in military causing us Opinion court’s and the dissent to our to neither employ our own “military opin- panel majority’s now-vacated Second ion” nor abandon the summary judgment Hogan, Amendment decision. See Kolbe v. standard to rule as we do. 2016) 160, 194, 813 F.3d 196 distinguished Our dissenting colleagues J., (King, dissenting part and concurring just ineffectively as attack the merits of judgment in the in part) (expressing a ruling our on Second Amendment protec- strong “proclaim inclination to that tion, chiefly complaining that we do not implicated by Second Amendment is not adopt the illogical dissent’s popularity test. FSA,” in that there is no “reasonable Elsewhere, the dissent strategically re- that, saying although basis for the M16 is moves the word “most” from Heller's a dangerous weapon, and unusual the AR- enunciation of the in military “most useful not”); 15 and similar arms are at id. inquiry. service” thereby in- dissent (recognizing n.2 large-capacity maga- correctly insists that foreclosing we are dangerous zines also “could be deemed and Second protection Amendment for weap- unusual, that, alia, in view of evidence inter may ons that have some use in military they particularly designed are and most service, including guns the stun at issue in military suitable for law and enforcement Caetano and even the handguns at issue in (internal applications” quotation marks Heller. The goes dissent so far as to claim omitted)); Kolbe, F.Supp.3d at n.29 nearly we “would remove all firearms that, (observing “[gjiven that assault rifles from protection Second Amendment essentially like the AR-15 are the function- nearly all can firearms be useful in mili- equivalent arguably al of M-16s—and more tary post service.” See at 157. At another [reasoning effective—the of Heller that M- point, acknowledges the dissent the critical 16s could dangerous be banned as and distinction that the Heller Court drew be- apply (citing would seem to here” unusual] military weapons tween at the time of 2783)). U.S. (arms Second Amendment’s ratification en- analysis, In our simply de-emphasize we titled to constitutional protection because unusual,” “dangerous the term more they possessed were otherwise at home that, directly concluding under Heller be-' self-defense) citizen militia for members cause the banned assault military weapons today (sophis- and the large-capacity magazines are “like” “M-16 ticated arms like the M16 that were devel- military rifles” and “most useful in ser- oped for modern warfare thus lack vice,” they beyond are the reach of the protection). constitutional But the dissent Consequently, Second Amendment. inconsistently placed reckons we have plaintiffs problem they is not that a settler’s musket the ambit of the outside deprived ample opportuni- have been of an Second Amendment. ty squarely meet the issue of whether Taking ruling last shot our on Sec- large- the banned assault capacity magazines- protection, in mili- ond Amendment the dissent en- are most useful Instead, deavors to tary plaintiffs’ prob- plaintiffs service. make the case that, issue, lem full that the despite notice of the FSA-banned assault they not, fact, apparently large-capacity magazines have not and cannot fore- are sort, actually nothing of the military doing, service. so
most useful prohibitions against a thereby welcoming simply resorts to further obfus- the dissent score, firearms. On that multitude of other example, the dissent under- cation. For however, patently the dissent is alarmist prohibited that the AR-15 and other scores *28 wrong. and “in are not themselves rifles semiautomatic force, by any military includ- regular use pro- ruling on Second Amendment Our Army, whose stan- ing the United States tection is limited and clear: Because fully auto- large- has been and weapons dard-issue assault FSA-banned M16s, post rifles.” like in that capacity magazines matic M16- and M4-series are service, (“If military useful in 158; they at these fire- are most at see also id. 159 they protected by are not the Second devastating weapons of were such arms not question Amendment. The relevant is war, they that would be one would think they are themselves M16s or oth- whether military issue for forces across standard by military; used a or whether er arms characterizes the globe.”). The dissent in they only are useful at all or useful being weap- as whether inquiry relevant service; they have this military or whether legitimate purpose lay is to “only on’s in with a single or that feature common combatants,” full of waste to a battlefield Rather, issue is non-banned firearm. added), in- (emphasis at and then id. weapons and whether the banned assault that there are citizens who vokes evidence an amal- large-capacity magazines possess weap- possess and use the banned assault weapons features that render those gam of self-defense, sporting purposes ons magazines like M16s and most useful The dissent also treats rate id. at 159-60. military uncontroverted ev- in service. The as the sole determinative factor and of fire See, e.g., that idence here is do. J.A. an its own evidence that M16 proffers (reflecting 1121-22 that the banned rapid- mode cannot fire as semiautomatic weapons designed or “kill[ ] “effectively” not ly least —as —at battlefield, enemy” on the disabl[e] 158; reflects. Id. at see State’s evidence military that net effect of “[t]he [their] fully auto- (noting id. at 159 n.6 also lethali- capability combat features is a firearms do not matic and semiautomatic wounds, serious, more in more ty—more manner). the same “spray-fire” precisely beyond that of other firearms victims—far Additionally, parses other indi- the dissent in general, including other semiautomatic the banned assault vidual features of (indicating that guns”); id. at weapons, pointing out that some features magazines “are large-capacity particularly firearms, not are shared non-banned do designed military and most suitable for own make “more lethal on their applications,” and law enforcement as well actually battle-ready,” and can render “uniquely military of both feature[ ]” operate.” firearms “easier and safer to Id. weapons and other fire- the banned assault emphasizes even evi- at 159. The dissent attached). they may be arms to which opining dence semi-automatic “[t]he today Nothing in our decision affects or likely ergonomic, the most AR15 carbine question calls into the Second Amendment safe, readily available and effective firearm that are not most protection (altera- for civilian self-defense.” Id. military including, useful service— (internal original) quotation marks tion Heller's, course, handguns. omitted). it, ground- the dissent would have we As us, weapons to
lessly
Finally,
deem the banned assault
unlike
our esteemed dissent-
subject
would
the FSA’s
military-style weapons
ing colleagues
of war when
be
prohibitions against
The dissent also asserts that our “line
of thought was
large-capacity magazines
expressly rejected
to the
ultra-de-
Supreme Court in Heller” when it “dis
manding
scrutiny
post
strict
standard. See
missed the District of Columbia’s reverse
Indeed,
at 159-63.
the dissent would apply
contention that
handgun
its
ban
con
[was
scrutiny
pos-
strict
ban on in-home
long guns
stitutional] because
were still
any weapon
session of
that satisfies the
permitted for home
post
defense.” See
Meanwhile,
popularity
dissent’s
test.
we
omitted)
161 (emphasis
(citing
than
conclude
no more
intermediate
2783).
U.S. at
The dissent’s
here,
scrutiny applies
part
because the
equation of this case
wholly
and Heller is
protect
FSA leaves citizens free to
them-
n
untenable, however,
depends
because it
o
handguns
plenty
selves with
of other
*29
discounting the relevance of
handgun’s
ammunition,
firearms and
and thus does
quintessential
status as “the
self-defense
-severely
not
burden the core Second
weapon”
status that was obviously and
—a
right
Amendment
to use arms for self-
unquestionably important
to the Heller
in
defense
the home. We also take notice
628-29,
Court. See
554 U.S. at
of the scant evidence in
the record
Nevertheless,
S.Ct. 2783.
the dissent next
banned
weapons
large-capacity
and
that,
insists
in rejecting its reading of
magazines
possessed
are
or suitable for Heller,
“any
we allow that
state ‘would be
self-protection.
free to ban all weapons except handguns,
handguns
because
are
popular
the most
The dissent has
good
no
answer to our
weapon
chosen
Americans for self-de-
First,
analysis.
the dissent mischaracter-
”
(em-
in
fense
the home.’
post
at 161
izes our
in
Court’s recent decision United
omitted)
phasis
Caetano,
(quoting
Hosford,
States v.
people large-capacity maga- its citi- say little about whether sault very has homes for keep previously explained, it their the relevant zens should zines. As dissent, is, That under the receipt protection.”)- provision of the FSA allows possession of a on the in-home ban weapon of an assault possession sufficiently weapon would have to popular magazine by a retired Ma- large-capacity scrutiny to be allowed to strict withstand officer if such ryland law enforcement not, however, The Heller Court did stand. magazine “is sold or transferred weapon or legislative trampling such a ordain person by the law enforcement regulations to enact firearms prerogative purchased on retirement” or “was agency Rather, it all the protect people. by the for official use person or obtained here, scrutiny ap- can be the intermediate agency before with the law enforcement assessing the con- standard for propriate Ann., retirement.” See Md. Code Crim. against the stitutionality prohibition of a 4-302(7). §Law in the home. And of a possession scrutiny, intermediate the FSA survives recog Supreme Court has large- assuming the assault essentially a equal protection nized that “is prohibits it capacity magazines similarly persons direction that all situated *30 pro- to Second Amendment even entitled City should be treated alike.” See Cle of tection. Ctr., Inc., Living v. 473 burne Cleburne 432, 439, L.Ed.2d U.S. 105 S.Ct. 87 IV. (1985). Thus, plaintiff challenging 313 plaintiffs’ Four- next address the We equal protection on an state statute basis claims, pur- are teenth Amendment which demonstrate that he has been “must first Protection under the Clause Equal sued differently from others' with whom treated “denying] from to (barring a state similarly he is situated and that the un jurisdiction equal person within its result of inten equal treatment was the laws”), as well as the Due protection purposeful or discrimination.” See tional (prohibiting a state from Process Clause Garraghty, Morrison v. 239 F.3d life, any person liberty, of “depriv[ing] 2001) Cleburne, (citing City of law”). process without due of See property, 3249). 439-40, If that U.S. at Const, XIV, § 1. are satis- amend. We U.S. made, showing initial has been “the court the district court’s of fied to affirm award dispar proceeds to determine whether summary judgment to the State with re- justified ity in can be under the treatment to those claims. spect scrutiny.” Id. At that requisite level of that the step, generally presumes a court
A.
reject
the chal
statute is valid and will
“if
drawn
lenge
the classification
plaintiffs’
The first of the
Four
rationally
legitimate
to a
statute is
related
Amendment claims is that the FSA
teenth
Cleburne,
City
interest.”
state
See
Equal
contravenes the
Protection Clause
440, 105
S.Ct. 3249.17
by allowing
Maryland
retired
law enforce- U.S.
circumstances,
higher
scrutiny apply
suspect
general pre-
levels of
clas-
17. In certain
sumption
statutory validity "gives way”
sifications).
no contention that a
There is
judicial scrutiny
challenged
and stricter
of a
heightened
scrutiny applies to the
level of.
Cleburne,
City
law is warranted. See
protection challenge
equal
in this case.
440-41,
(observing
The record O’Malley, F.Supp.3d ly. See Kolbe v. required officers are also enforcement 2014) (“The (D. Md. court cannot in specialized training order complete Maryland is the State of conclude are carry weapons. assault Officers use or are in all treating differently persons who on and when to utilize assault trained how alike, respects plaintiffs’ and the relevant taught the tech- weapons,. and fail.”).18 challenge must equal protection of harm to niques that minimize the risks exception an as- retired officer pursuing equal protection chal- ed that a their 18. Equal weapons ban contravened the lenge, plaintiffs rely primarily Silveira sault on 1052, 1089- Protection Clause. See 312 F.3d Lockyer, the Ninth Circuit conclud- v. wherein “copies,” B. The term as used section 5- 101(r)(2), Maryland’s is not new to fire- Fourteenth plaintiffs’ The second Indeed, Maryland regu- arms statutes. has that the ban on Amendment claim is FSA’s sale, sale, “possession, lated the offer for weapons identified “copies” of the assault transfer, purchase, receipt, transport” 5-101(r)(2) Maryland section cop- certain assault and “their Safety unconstitu Code’s Public Article is ies” for more than two decades. face, in tionally vague on its contravention Laws, Md. ch. In May Mary- 456. particular, of the Due Process Clause. In Attorney opin- land’s General rendered an they maintain that the statute fails to in explaining “copies” ion the term as used person form a reasonable of what consti 5-101(r)(2). section He therein observed “cop[y]” particular a of a assault tutes ordinary meaning of the word Ann., weapon. Safety Pub. See Md. Code copy reproduction is “a or imitation of an 5-101(r)(2) § (defining “[r]egulated a fire original.” Attorney See J.A. 681. The Gen- any arm” “a firearm that is that, law, explained Maryland eral under following specific assault or their copy designated weapon “a of a assault regardless copies, company pro of which must be similar in its internal components duced and manufactured that and function to designated weapon.” weapon”). “[cjosmetic Thus, similarity Id.
an
enumerated assault
alone would
Supreme
recently
As the
Court
not bring weapon
regulated
within the
explained,
void-for-vagueness
doctrine
later,
firearms law.” Id. Six months
precludes the
of a
enforcement
criminal
2010, Maryland
November
State Police
it
vague
give
statute “so
fails to
ordi
issued a
explaining
bulletin
that it consid-
nary people fair notice of the conduct it
ers a firearm that
cosmetically
similar to
punishes, or
that it
so standardless
invites
an assault
weapon identified
section 5-
arbitrary enforcement.” See Johnson v. 101(r)(2)
if
copy only
possesses
to be
it
—
States,
-,
United
U.S.
“completely interchangeable internal com-
(2015).19
2551, 2556,
broader class.
clearly
there is some conduct that
falls within
provision’s grasp.”
the
See
149
in force after
guidance
vague
remained
the FSA ders a statute
is not
possibility
the
in 2013.
was enacted
that it will sometimes be difficult to deter-
mine whether the incriminating fact it es-
Appeals Maryland
The Court of
has
proved;
tablishes has been
but rather the
in
recognized
“legislative acquiescence
that
indeterminacy of precisely what that fact
[of
the administrative construction
a stat
is.”);
Johnson,
see also
interchangeable with
internal compo-
WILKINSON,
Judge,
Circuit
with
nents of some other firearm. That conten-
WYNN,
joins,
Judge,
whom
Circuit
misapprehends
vagueness inquiry,
tion
concurring:
intractability
which focuses on the
of iden-
concur,
I am
happy
Judge King’s
standard,
tifying
applicable legal
not
opinion
fine
this case.
difficulty
ascertaining
on the
the rele-
really
No one
knows what the
an-
vant facts
close cases. See United States
Williams,
285, 306,
respect
regulation
v.
swer is with
to the
U.S.
(2008) (“What
1830,
In urging legislation, pur us to strike this ner whatsoever and for whatever impair ability appellants gov- pose”). would Had Heller fact failed to reserve *34 more subjects, possess fact-finding capabilities superi- or had it been written far those ambitiously, scantily it is not clear that it could or to the supported views now critical garnered regularly proffered have five votes. from the bench. In fact, legislators uniquely are suited to dis- Maryland sought to weapons The popular cern to reg- habits and understand not defen- regulate emphatically here are usage ular within populace. The term course, in nature. Of is sive no. “common use” was meant never to deal to long ago property in real what we learned courts the sole supreme hand in a Weapons may class to call a fixture. re- political controversy where the combatants main at home for a while but their station robust, on both sides are they where are permanent. They always is not can be energized, they and where are well stocked purpose? taken out on the town. For what arguments they with can press before the Maryland legislature readily could public. weapons, conclude that unlike handguns, are efficient instruments of recognized, (cid:127)As Heller there is a balance in fact carnage, mass would serve to struck be here. While courts exist "to for those in a com- weapons of choice who protect rights, individual we are not the charge public to into a spirit mando wish anyone’s political instruments of agenda, Likewise, open legisla- fire. venue and empowered we are not to court mass con- validly large ture could determine that de- sequences predict, we cannot and we are magazines capacity tachable with a indefinitely not to impaneled add to the rounds of ammunition in more than ten growing subjects list of on which the states by those who seek to fact facilitate assaults of our Union and the citizens of our coun- to eliminate the need reload. try longer any meaningful say. no have down, If this statute is struck it is diffi- my good colleagues all respect With cult to see what class of non-automatic important differently, matter who see this If regulated. firearms could ever be these uphold Maryland I law in its would weapons legislative are outside the com- entirety. It
pass,
virtually
then
all
will be.
DIAZ,
Judge, concurring
part:
Circuit
fair,
course,
altogether
argue
the assault
here should be less
join
majority
I
pleased
am
people
is for the
regulated, but
affirming
judgment.
the district court’s
(and
Maryland
Virginias
and the Car-
court,
But
the district
I think it unnec-
like
olinas) to decide.
essary
weap-
the assault
decide whether
large-capacity magazines
ons and
at issue
claim, however, that
Appellants
these
Amend-
protected
here are
the Second
cannot be banned because
Rather,
this
ment.
I am content
decide
“in
“typical-
are
common use” and are
solely
majority’s
case
on the
alternative
ly possessed by law-abiding citizens for
(and
if
compelling) rationale —that even
Appellants’ Supp. Br. 20-
purposes.”
lawful
Maryland’s
implicates
statute
the Second
language
employed
This
was of course
Amendment,
passes
it nonetheless
consti-
624-28,
S.Ct.
in.
554 U.S.
tutional muster.
purport
but it did not
to make
inquiry
usage
typical
into common
TRAXLER,
Judge, with whom
Circuit
possession
province
the exclusive
AGEE,
NIEMEYER, SHEDD, and
forays
prop-
courts. The dissent’s
into the
Judges, join, dissenting:
Circuit
usages of this or that firearm
erties and
majority
that the Gov-
Today the
holds
empirical inquiries
the kind of
routine-
which
ernment can take semiautomatic rifles
ly
legislative
reserved for
bodies
*35
away
law-abiding
from
American citizens.
ern semiautomatic
or magazines
rifles
Carolina,
Carolina, Virgi-
In
North
South
so,
holding more than
In doing
ten rounds.
nia,
Maryland,
Virginia
West
the Gov-
majority
the
stands alone from all the
you
you
now tell
that
ernment can
cannot
other courts to have considered this issue.
hunt
these rifles. The
with
Government
scope
But the
of the Second Amendment is
you
you
that
can tell
cannot shoot at tar-
regard
broad with
to the kinds of arms
And,
gets
importantly,
with them.
most
protection, “extending],
that fall within its
you
you
can tell
that
cannot
Government
facie,
prima
to all instruments that consti-
yourself
your fami-
use them to defend
tute bearable arms.” District
Columbia
ly in
In
your
concluding
home.
that
Heller,
570, 582,
2783,
v.
554 U.S.
128 S.Ct.
apply,
Second Amendment does not even
(2008).
course,
possessed by law-abiding citizens. conjunctive al test “is a A weapon test: may not be banned unless it is both dan- majority says The first that the Second unusual”) (Alito, J., Amendment does not even apply gerous to mod- concur- a weapon popular enough of this rule is “whether ring). significance *36 weapon of a is in dangerousness be considered common use has relied on “the relative belongs form, to a statistical data of some creating irrelevant when a commonly for lawful common objective arms used class of consensus use is an in Simply put, if the firearm largely Id. purposes.” inquiry.” statistical Hollis v. 2016) for lawful commonly possessed 436, question Lynch, is 827 F.3d 449 protection (internal omitted). it falls within the purposes, quotation marks It is Heller, 554 Amendment. See Second beyond any dispute reasonable from the 627, 128 at S.Ct. U.S. statistically signifi- record before us that a cant possess number American citizens majority reject in My colleagues (and magazines semiautomatic rifles hold- analysis, use” charac- foregoing “common rounds) ing pur- more than 10 for lawful test” founded “popularity it as a terizing poses. Between 1990 and more than that “a reasoning “circular” such state- on platform million AR- and AK- semiauto- extraordinarily lethal new of-the-art and matic alone in rifles were manufactured only need be flooded on weapon ... would In imported into United States. any governmental pro- prior the market sporting semiautomatic accounted for rifles it constitutional in order to ensure hibition twenty percent of all retail firearms sales. majority’s not But the beef is protection.” fact, the number of AR- and Supreme me—it is with the Court with style weapons AK- manufactured im- Breyer Justice raised a the United States. ported into the United States was “more objection “popularity to this quite similar than number of double the the most com- dissent: test” his Heller U.S., F- monly sold vehicle the Ford lift re- Congress and States [I]f 150.” J.A. 1878. In terms of absolute num- possession on the and use strictions bers, statistics lead to the these unavoid- people buy machine- machineguns, and popular conclusion that semiautomatic able ... will have to reverse guns Court commonly rifles such as the AR-15 are course and find that the Second Amend- possessed by American citizens for lawful fact, does, protect the individual ment meaning of Heller. purposes within possess self-defense-related majority’s reason- machinegun. On the jurisdictions pos- The number of where par- if invents a ing, tomorrow someone of semiautomatic rifles is lawful is session useful, ticularly highly dangerous self- also an consideration in deter- appropriate Congress and the weapon, defense mining purposes. use for lawful common immediately, ban it States had better Caetano, (Alito, J., at 1032-33 See popular Congress it will once becomes 200,000 concurring) (explaining that the constitutional au- longer possess no in the guns tasers and stun United States There no basis thority to do so.... pur- for lawful commonly possessed are believing that the Framers intended poses “widely accepted owned and reasoning. circular such legitimate means of self-defense across the 720-21, S.Ct. 2783. Justice 554 U.S. their country” permit where 45 states law- my colleagues’ Breyer effectively raised ful The semiautomatic rifle possession). in his Heller dissent and precise criticism at least the has been existence since majority obviously un- the Heller was Century. Today, turn of the Twentieth moved it. years after these firearms more than 100 indeed, use, may pos- And, almost ev- came into individual citizens following like the AR-15 have considered sess semiautomatic rifles ery federal court states, large-capacity in at least 44 which ‘in magazines semiautomatic issue are widely common use’ as that term was used in that these establishes Heller.”); accepted country across the as firearms Colorado Ass’n v. Outfitters (D. Hickenlooper, F.Supp.3d may legitimately possessed for be 2014) (concluding Colo. that statute “af Robert J. purposes. lawful Cottrol Guns, Feathers, fects the use firearms are both Mocsary, Bird George A. (cid:127) widespread commonly used for self- Why and Overcriminalization: Courts defense,” in “lawfully view of the fact that Amendment Should Take the Second Seri- *37 owned semiautomatic using- firearms a 17, Pol’y 14 L. & 36 ously, Geo. J. Pub. magazine capacity greater with the of than (2016) states, the (noting that Dis- “[s]even millions”), 15 rounds number in the tens of Golumbia, regu- trict of and a few localities part grounds, vacated in on other 823 F.3d weapons”); or see late ban so-called (10th 2016). 537 Cir. (“The [banning id. at 36 n.106 states or are regulating weapons”] “assault Califor- unequivocally record also shows nia, Connecticut, Hawaii, Maryland, Mas- magazines that with a capacity greater of York.”).1 sachusetts, Jersey, and New New than commonly by 10 rounds are kept citizens, American as there are more than significant popularity view of the of magazines by 75 million such owned them firearms, these courts -have had little diffi- in the magazines United States. These are concluding in ri- culty semiautomatic so common that are standard on are in fles such as the AR-15 common use many firearms: a nationwide “[0]n basis See, e.g., by law-abiding citizens. Heller v. pistols most maga manufactured with (“Heller II”), District Columbia 670 of holding zines ten to 17 rounds.” J.A. 2122. (D.C. 2011) (“We 1244, F.3d 1261 Cir. years ago, “fully Even more than 20 18- enough think it clear the record that percent all by firearms owned civilians magazines semi-automatic rifles and hold- ... equipped magazines with holding were ing more than ten rounds are indeed in II, more than ten rounds.” Heller 670 F.3d use,’ plaintiffs ‘common as the contend. 1261; Fyock v. City Sunnyvale, see Approximately 1.6 million AR-15s alone (9th 2015) (“[W]e 779 F.3d Cir. have been manufactured since and say cannot that the district court abused popular 2007 this one model accounted for by inferring its discretion from the evi firearms, percent 5.5 of all 14.4 per- that, minimum, dence of record at a [such] rifles, all produced cent of the U.S. for use.”)2 magazines are in common market.”); the domestic New York State Ass’n, Cuomo, Inc. & Pistol v. keep Millions of Americans semiauto- Rifle (2d 2015) (“This F.3d Cir. much is lawful, matic rifles and use them for non- clear: Americans own millions of activities, the fire- including criminal as a means to challenged legislation pro- arms that the defend their homes. Plaintiffs Kolbe and accepting hibits. ... Even the most con- acquire keep Turner both seek to rifles, servative estimates cited the parties equipped semi-automatic maga- with amici, rounds, the assault weapons and zines able to hold more than 10 listed, Although Hawaii is it bans assault tute bearable arms entitled to Second Amend 1. rifles, pistols only; semiautomatic such as the protection, magazines quite clearly ment such permitted AR-15 are still in Hawaii. See Haw. constitute for the reasons arms set forth in the 134-1, 134-4, §§ Rev. Stat. 134-8. panel opinion. now vacated See Kolbe v. Ho 2016). gan, 813 F.3d Although majority 2. does not reach the magazines issue of whether detachable consti- for self-defense—a primarily applies particular their homes Second Amendment to a common legitimate purpose pos- type weapon magazine, majority sessing expert these firearms. Plaintiffs’ “test,” creates a heretofore unknown which presented survey evi- James Cureuruto is whether the firearm in question is “most pri- that self-defense was a showing dence military useful service.”4 Under this mary purchase reason for the test, newly-birthed which seems to be a FSA, Report banned under the and a 1989 inquiry, stand-alone the Second Amend- Alcohol, Tobacco, from the Bureau apply ment does not if a court deems was a Firearms indicated self-defense weapon “most useful” in combat opera- purpose suitable for semiautomatic rifles. today, tions. And in the case before us expert The State’s Daniel Webster even majority concludes the Second agreed that it is reasonable to assume that apply Amendment does not at all because keeping prohibit- one of the purpose rifles, in military opin- semiautomatic weapons is in the home.” ed “self-defense majority, ion of the are more useful as J.A. military weapons than as for indi- *38 clearly
Because the evidence before us self-defense, hunting target vidual or popular weapons demonstrates that these shooting. Majority sport Op. See at 137 commonly possessed pur- are for lawful (“Whatever potential their other uses— poses dangerous and are therefore not AR-15, including self-defense—the other unusual, they by are covered the Second weapons, large-capacity maga- holding majority Amendment. The errs prohibited by unques- zines the FSA are otherwise.3 service.”). military tionably most useful in analysis clearly This is at odds with the Balancing Majority’s
B. The Test Supreme approach Court’s Heller set- contrary to Heller. is courts, majori- ting including out how ty, go to about a Amendment are Second Supreme apply Rather than Court’s inquiry.5 whether the common-use test to determine majority previously my good friends in the 4. Since the has not artic- It is evident that interpretation ulated this novel majority simply like Heller s determi- do not neither side in the district court focused its commonly possessed for nation that firearms legal arguments proving evidence or on purposes by the lawful are covered Second disproving as that semiautomatic rifles such view, majority's Amendment. In the Heller s military as the AR-15 are “most useful” produces “commonly possessed” test unac- qual- weapons question of whether or on the case, ceptable providing Second results in this ifying "militarily would remove as useful” coverage Amendment for semiautomatic rifles pro- weapon Amendment from Second by public owned less than of the American 1% district court likewise did tection. And the thwarting the other questions. “efforts If this is the 99%” not address these standard, requires new then basic fairness Majority Op. ban them. at 141. This assertion opportunity plaintiffs have an that every premise American rests on false squarely Chester, States v. meet the issue. See United who does not own a semiautomatic rifle 2010) 628 F.3d quite to ban them. That is a stretch. In wishes ("Having appropriate established the stan- fact, Gallup poll public a recent shows review, we think it best to remand dard of support for a so-called assault ban government oppor- afford the an this case to worth, Thus, at for what it is substantial- 36%. tunity shoulder its burden and Chester an oppose ly a ban than favor it. more Americans respond. opportunity to Both sides should www.gallup.com/poll/196658/support- opportunity present an their evi- have (last assault-weapons-ban-record-low.aspx arguments to the district dence and their instance.”). 13, 2017). court in the first visited Feb.
First,
majority simply ignores
“the
from Heller would exclude
“most
military
useful in
such
inquiry”—
Gatling
Amendment
service”
as
pertinent Second
mortars, bazookas, etc.,
guns,
one
no
could
firearms at
issue]
“whether
com-
[the
claim
commonly
these items were ever
monly possessed
law-abiding citizens
possessed
pur
for Second Amendment
Caetano,
today.”
purposes
for lawful
Indeed,
poses.
such “M-16 rifles and the
(em-
(Alito, J., concurring)
at
S.Ct.
like” are outside the Second Amendment
omitted). But,
phasis
this omission is un-
highly
society
because
“are
unusual
light
derstandable in
of the millions of law-
627, 128
large.”
Id.
S.Ct. 2783.
abiding
possess
Americans who
the sem-
issue,
explained pre-
iautomatic rifles at
Third,
way suggests
Heller in no
viously.
beyond
It is
debate.
military
usefulness of a
dis-
qualifies it from
pro-
Second Amendment
Second,
majority
attempt
makes no
majority’s singular
tection. That is the
con-
to demonstrate that semiautomatic rifles
contrary,
coction. On the
the Second
historically prohibited
have been
as “dan
always
Amendment has
been understood
Instead,
gerous
weapons.
and unusual”
our
military opera-
to cover
useful in
today
adopted
analysis
court
has
an ad hoc
Indeed,
tions.
the Second Amendment at
a weapon
that excludes
from Second
Founding
grounded
was
the need to
if
protection
appears
Amendment
it
to be
safeguard
commonly possessed weap-
“like” an M-16 or
in military
“most useful
military
ons
citizens for
service. “[A]t
approach,
service.” Under this
it is irrele
the time of the Second Amendment’s ratifi-
may
vant that a firearm
have been com
cation,” it was
that “all
understood
citizens
*39
monly possessed
widely
accepted as a
capable military
of
service ... would bring
legitimate firearm for law-abiding citizens
the
they pos-
sorts of lawful
that
years;
weapon
hundreds of
such a
duty.”
sessed at home to militia
“
scope
could be removed from the
627,
at
‘Ordinarily
U.S.
C. Alcohol, Tobacco, sporting rifles Explo- semiautomatic Firearms and (“BATF”) “weapons well, are of war.” might surprised sives be as light testimony of the submitted to Con- that the majority The concludes semiau- gress on behalf of BATF: by Maryland rifles banned law are tomatic weapon capa- The AK-47 is a select fire service, military useful even most firing per ble of 600 rounds minute on by any though they regular are not use per full automatic and 40 rounds minute force, military including the United States on semi-automatic. The AKS and AK-47 Army, weapon whose standard-issue has appearance. are similar in The AK-47 fully M4- been the automatic Ml 6- and ... been manufactured as a ma- [has] Hollis, series rifles. See 827 F.3d at gun.... chine The AKS is a semi-auto- n.2. that, deadly except military matic for its In its effort to show that semiautomatic appearance, is no different from other devastating weapons rifles war of. semi-automatic rifles. only legitimate purpose lay whose is to Hearings on S. 386 Before the Subcomm. combatants, waste to a battlefield full of Comm, on the Constitution of the Senate majority first states that the rates of (1989). Judiciary, Cong. on the 101st 28-29 fully fire between the automatic M16 ser course, majority vice rifle and the semiautomatic AR-15 if Of is correct that sporting “nearly rifle are identical.” This the semiautomatic AR-15’s rate of fire claim seems counter-intuitive because sem makes it a of war outside the Amendment, iautomatic require scope firearms that the shoot of the Second then all fired, pull trigger er for each shot including semiautomatic firearms — fully majority while automatic vast of semiautomatic hand- —otherwise guns” require guns enjoy known as “machine protection not no constitutional —do — a pull trigger any for each shot and will since the rate of fire for semiautomat- every discharge magazine round in the ic firearm is determined how fast the long trigger depressed. as the is squeeze trigger. See Sta shooter can Such a States, n.1, ples v. obviously United U.S. conclusion flies the face of (1994). S.Ct. L.Ed.2d 608 which never mentions rate of fire Likewise, of a The rate of fire semiautomatic firearm as a relevant consideration. simply suggestion ability determined how fast that the to accept large- squeeze trigger. capacity magazines shooter can facilitates firearm’s military to all applies usefulness semiauto- majority’s might surprise assertion matic weapons, including constitutionally- Army, the United States which sets the protected handguns, since firearm that maximum effective rates of M4- and Mi- *41 magazine theoretically can hold a can hold operating series rifles semi-automatic of one size. per only mode at 45 to 65 rounds minute — (not about five rounds in five majority suggests seconds The also that other believes). majority rounds as the This is features of semiautomatic rifles like the far slower than 150 to 200 per devastating military rounds AR-15 make them may effectively by weapons. minute that be fired the But several of the features iden- operating fully same arms automatic tified do not make the firearms more lethal Dep’t Army, mode. See United States of or battle-ready, but easier to use. On the 3-22.9, Field Marksmanship, contrary, many Manual Rifle “military-style” of the com- Weapons, Table 2-1 ponents accuracy improve “increase M16-/M4-Series A that make a telescoping J.A. 2100. features firearm easier and ergonomics.” stock, operator to example, permits operate prow- safer to add to its battlefield according adjust length stock ess.7 size so that the rifle can physical
his or her In deciding that the banned semiauto- Likewise, comfortably. J.A. 2182. a be held unquestionably matic rifles “are most use- comfort, provides stability, and pistol grip service,” military ful in majority cavali- accuracy, Kopel, B. Rational see David erly potential dismisses “their other uses” Weapon” Pro- Analysis Basis “Assault mil- irony without discussion. is that (1994) hibition, L. Contemp. 20 J. law-abiding lions of actually Americans grip, the shooter (“By holding pistol guns, use these versatile while there do rising from after the first keeps the barrel any military not seem to be forces that shot, thereby stays target on for a routinely carry an AR-15 or other semiau- follow-up application shot. The defensive sporting officially-is- tomatic rifles as an obvious, public safety advantage as is the weapon majority sued service least the —at shots.”), stray and barrel preventing any. has If not identified these firearms operator burning from keep shrouds war, devastating weapons were such one upon himself or herself contact with they would think that would standard be although suppressors barrel.6 And flash military globe. issue for forces across the position— conceal a shooter’s can indeed potential military Whatever the usefulness advantage an for someone which is also weapons, of these millions of American defending night his or her home at — actually sporting citizens use them for primary preventing function of serve purposes possess them to defend being from in low- the shooter blinded themselves, their and their families homes. (“Re- lighting Kopel, conditions. See at 397 Indeed, plaintiffs’ suggests evidence shooter’s blind- duced flash decreases semi-automatic AR15 carbine is like- “[t]he momentary by blindness caused ness—the safe, ly ergonomic, readily the most avail- light explo- from the the sudden flash effective firearm for civilian self- able and The flash reduction is gunpowder. sion of defense.” J.A. 2091.8 important shooting at dawn especially by firearms banned dusk.”). The semiautomatic None of these features con- Maryland commonly by “chosen Amer- vert a semiautomatic rifle into in the home” and are icans for self-defense machinegun war like a carried into battle by the why clearly protected actual soldiers. It is unclear to me thus Second features, hunting majority suggests, pared civilian rifles....” 6. These enable to common everywhere. "spray-fire” a shooter to rounds J.A. 2095. "Spray-firing” only accomplished can be with fully rifle like an M4 car- automatic assault "military majority’s utilization of the 8.The bine; possible "[i]n semiautomatic mode it is theory use” instead of the common use test shoot, point to either aim fire or to but it is example, produces ironic results. For the law possible spray fire in the manner not my colleagues uphold today permits Maryland fully one would in automatic mode.” J.A. rifle, possess the Ml Garand residents to 2128. rifle for which was the standard-issue battle troops War II and the American in World appear AR-15-style it that an rifle Nor does holding in this Korean War. The result greater that create a risk to civil- fires rounds legal Maryland possess a it is case is that hunting than rounds fired a standard ians military actually by our on fact, rifle that was used just opposite is true. The AR- rifle. *42 battlefield, illegal possess a rifle but mm ammunition is 15’s standard .223/5.56 military. "quite penetration capability by anemic in never used our capacity pale[s] destructive' when com- in 160 “[wjhatever the reason” for of self-defense has been central to the
Amendment —
Heller,
Amendment,”
628,
629, Second
at
popularity.
their
554 U.S. at
id.
128 S.Ct.
added),
(emphasis
2783
and that this cen
question
The real
Id. at 1033. long as the weapon chosen is one common- ly possessed by people the American Finally, we are told that the ban on purposes lawful the rifles at issue not semiautomatic rifles is burdensome be- —and certainly here most are—the state has cause these are not even well- very say little about whether its citizens suited for defense of hearth and home— keep protec- should it their homes for handguns are and that is all better law- question tion. “The under Heller is abiding need.9 not patently citizens This is First, adequate whether citizens have alterna- wrong. legitimate there are reasons Rather, tives available for self-defense. for citizens to favor semiautomatic rifles Heller types asks whether the law bans handguns defending over themselves commonly firearms pur- used for a lawful their families home. The record pose regardless of whether alternatives evidence, summary contains which on — City Highland exist.” Friedman v.
judgment
light
was to be viewed in the
-
Park,
-,
447, 449,
U.S.
plaintiffs, suggesting
most favorable to the
(2015) (Thomas, J.,
ones with one of State thinks The Reverend Charles G. VON perhaps handgun, or a should ROSENBERG, individually his use— hunting rifle or a slow-to-load bolt-action capacity Bishop as Provisional shotgun heavy recoil. “The with Episcopal Protestant Church *45 meaningless if it largely self-defense is Carolina, Diocese of South Plaintiff- right not include the to choose the does Appellant, defending most effective means of oneself.” Park, City Highland v. Friedman v. (7th 2015) (Manion, J., F.3d Cir. Right Reverend Mark J. LAW Indeed, “the ultimate dissenting). decision RENCE; Does, 1-10, being John ficti for what constitutes the most effective pres tious defendants whose names home, defending family, means of one’s ently are unknown to Plaintiff resides in individual citizens property will be added amendment when government.... and not the The extent of ascertained, Defendants-Appellees. danger imagined a citizen- —real —that only person faces at home is matter No. 15-2284 in full.” can assess Id. 418. who,' law-abiding For a citizen for what- Appeals, United States Court reason, protect chooses to his home ever Fourth Circuit. of a
with a semi-automatic rifle instead handgun, Maryland’s law semi-automatic Argued: December clearly significant burden on the imposes February Decided: to arm oneself at exercise home, subjected and it should at least be scrutiny review before it is al- strict
lowed to stand. forth, I
For the reasons I have set re-
spectfully dissent.
TRAXLER, dissenting Judge, Circuit concurring Part as to Part IV.A
IV.B: forth in the
For the reasons set now- I panel opinion,
vacated dissent from the
majority’s opinion equal protection on the Hogan,
claim.’See Kolbe v. 813 F.3d 2016).
199-202
I concur in the result reached
majority respect vagueness to the with
challenge, expressed for the reasons panel opinion.
now-vacated See id. at 190-