STEPHEN V. KOLBE
ANDREW C. TURNER; WINK'S SPORTING GOODS, INCORPORATED; ATLANTIC GUNS, INCORPORATED; ASSOCIATED GUN CLUBS OF BALTIMORE, INCORPORATED; MARYLAND SHALL ISSUE, INCORPORATED; MARYLAND STATE RIFLE AND PISTOL ASSOCIATION, INCORPORATED; NATIONAL SHOOTING SPORTS FOUNDATION, INCORPORATED; MARYLAND LICENSED FIREARMS DEALERS ASSOCIATION, INCORPORATED, Plaintiffs - Appellants, and SHAWN J. TARDY; MATTHEW GODWIN, Plaintiffs,
LAWRENCE J. HOGAN, JR., in his official capacity as Governor of the State of Maryland; BRIAN E. FROSH, in his official capacity as Attorney General of the State of Maryland; COLONEL WILLIAM M. PALLOZZI, in his official capacity as Secretary of the Department of State Police and Superintendent of the Maryland State Police; MARYLAND STATE POLICE, Defendants - Appellees. STATE OF WEST VIRGINIA: STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF FLORIDA; STATE OF IDAHO; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF MISSOURI; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NEW MEXICO; STATE OF NORTH DAKOTA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF WYOMING; COMMONWEALTH OF KENTUCKY; TRADITIONALIST YOUTH NETWORK, LLC; NATIONAL RIFLE ASSOCIATION OF AMERICA; CRPA FOUNDATION; GUN OWNERS OF CALIFORNIA; COLORADO STATE SHOOTING ASSOCIATION; IDAHO STATE RIFLE & PISTOL ASSOCIATION; ILLINOIS STATE RIFLE ASSOCIATION; KANSAS STATE RIFLE ASSOCIATION; LEAGUE OF KENTUCKY SPORTSMEN, INC.; NEVADA FIREARMS COALITION; ASSOCIATION OF NEW JERSEY RIFLE & PISTOL CLUBS; NEW MEXICO SHOOTING SPORTS ASSOCIATION; NEW YORK RIFLE & PISTOL ASSOCIATION; TEXAS STATE RIFLE ASSOCIATION; VERMONT FEDERATION OF SPORTSMAN'S CLUBS; VERMONT RIFLE & PISTOL ASSOCIATION; GUN OWNERS OF AMERICA, INC.; GUN OWNERS FOUNDATION; U.S. JUSTICE FOUNDATION; THE LINCOLN INSTITUTE FOR RESEARCH AND EDUCATION; THE ABRAHAM LINCOLN FOUNDATION FOR PUBLIC POLICY RESEARCH, INC.; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; INSTITUTE ON THE CONSTITUTION; CONGRESS OF RACIAL EQUALITY; NATIONAL CENTER FOR PUBLIC POLICY RESEARCH; PROJECT 21; PINK PISTOLS; WOMEN AGAINST GUN CONTROL; THE DISABLED SPORTSMEN OF NORTH AMERICA; LAW ENFORCEMENT LEGAL DEFENSE FUND; LAW ENFORCEMENT ACTION NETWORK; LAW ENFORCEMENT ALLIANCE OF AMERICA; INTERNATIONAL LAW ENFORCEMENT EDUCATORS AND TRAINERS ASSOCIATION; WESTERN STATES SHERIFFS' ASSOCIATION, Amici Supporting Appellants, LAW CENTER TO PREVENT GUN VIOLENCE; MARYLANDERS TO PREVENT GUN VIOLENCE, INCORPORATED; BRADY CENTER TO PREVENT GUN VIOLENCE; STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF CONNECTICUT; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF IOWA; STATE OF MASSACHUSETTS; STATE OF OREGON; DISTRICT OF COLUMBIA, Amici Supporting Appellees
Argued March 25, 2015
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Appeal from the United States District Court for the District of Maryland, at Baltimore. (1:13-cv-02841-CCB). Catherine C. Blake, District Judge.
John Parker Sweeney, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants.
Matthew John Fader, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
T. Sky Woodward, James W. Porter, III, Marc A. Nardone, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants.
Douglas F. Gansler, Attorney General of Maryland, Jennifer L. Katz, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan; Jason Van Dyke, THE VAN DYKE LAW FIRM, PLLC, Plano, Texas, for Amicus Traditionalist Youth Network, LLC.
Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie Marie Blake, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Luther Strange, Attorney General of Alabama, Montgomery, Alabama, for Amicus State of Alabama; Michael C. Geraghty, Attorney General of Alaska, Juneau, Alaska, for Amicus State of Alaska; Thomas C. Horne, Attorney General of Arizona, Phoenix, Arizona, for Amicus State of Arizona; Pam Bondi, Attorney General of Florida, Tallahassee, Florida, for Amicus State of Florida; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; James D. Caldwell, Attorney General of Louisiana, Baton Rouge, Louisiana, for Amicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing, Michigan, for Amicus State of Michigan; Chris Koster, Attorney General of Missouri, Jefferson City, Missouri, for Amicus State of Missouri; Timothy C. Fox, Attorney General of Montana, Helena, Montana, for Amicus State of Montana; Jon Bruning, Attorney General of Nebraska, Lincoln, Nebraska, for Amicus State of Nebraska; Gary King, Attorney General of New Mexico, Santa Fe, New Mexico, for Amicus State of New Mexico; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota; E. Scott Pruitt Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Amicus State of Oklahoma; Alan Wilson, Attorney General of South Carolina, Columbia, South Carolina, for Amicus State of South Carolina; Martin J. Jackley, Attorney General of South Dakota, Pierre, South Dakota, for Amicus State of South Dakota; Greg Abbott, Attorney General of Texas, Austin, Texas, for Amicus State of Texas; Sean Reyes, Attorney General of Utah, Salt Lake City, Utah, for Amicus State of Utah; Peter K. Michael, Attorney General of Wyoming, Cheyenne, Wyoming, for Amicus State of Wyoming; Jack Conway, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus Commonwealth of Kentucky.
Charles J. Cooper, David H. Thompson, Peter A. Patterson, COOPER & KIRK, PLLC, Washington, D.C., for Amicus National Rifle Association of America, Inc.
C.D. Michel, Clinton B. Monfort, Anna M. Barvir, MICHEL & ASSOCIATES, P.C., Long Beach, California, for Amici CRPA Foundation, Gun Owners of California, Colorado State Shooting Association, Idaho State Rifle & Pistol Association, Illinois State Rifle Association, Kansas State Rifle Association, League of Kentucky Sportsmen, Inc., Nevada Firearms Coalition, Association of New Jersey Rifle & Pistol Clubs, New Mexico Shooting Sports Association, New York State Rifle & Pistol Association, Texas State Rifle Association, Vermont Federation of Sportsmen's Clubs, and Vermont Rifle & Pistol Association.
Michael Connelly, U.S. JUSTICE FOUNDATION, Ramona, California, for Amicus U.S. Justice Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson, John S. Miles, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Conservative Legal Defense and Education Fund, and Institute on the Constitution.
Brian S. Koukoutchos, Mandeville, Louisiana; James B. Astrachan, ASTRACHAN GUNST THOMAS, P.C., Baltimore, Maryland, for Amici Congress of Racial Equality, National Center for Public Policy Research, Project 21, Pink Pistols, Women Against Gun Control, and The Disabled Sportsmen of North America.
Dan M. Peterson, DAN M. PETERSON, PLLC, Fairfax, Virginia, for Amici The Law Enforcement Legal Defense Fund, Law Enforcement Action Network, Law Enforcement Alliance of America, International Law Enforcement Educators and Trainers Association, and Western States Sheriffs' Association.
Jonathan K. Baum, Chicago, Illinois, Mark T. Ciani, KATTEN MUCHIN ROSENMAN LLP, New York, New York, for Amici Law Center to Prevent Gun Violence and Marylanders to Prevent Gun Violence, Inc.
Jonathan E. Lowy, Kelly Sampson, BRADY CENTER TO PREVENT GUN VIOLENCE, Washington, D.C.; Elliott Schulder, Suzan F. Charlton, Amit R. Vora, Catlin Meade, Stephen Kiehl, COVINGTON & BURLING LLP, Washington, D.C., for Amicus Brady Center To Prevent Gun Violence.
Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Claude S. Platton, Assistant Solicitor General, Eric T. Schneiderman, Attorney General of the State of New York, for Amicus State of New York; Kamala D. Harris, Attorney General of California, Sacramento, California, for Amicus State of California; George Jepsen, Attorney General of Connecticut, Hartford, Connecticut, for Amicus State of Connecticut; Russell A. Suzuki, Attorney General of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois, for Amicus State of Illinois; Thomas J. Miller, Attorney General of Iowa, Des Moines, Iowa, for Amicus State of Iowa; Martha Coakley, Attorney General of Massachusetts, Boston, Massachusetts, for Amicus Commonwealth of Massachusetts; Ellen F. Rosenblum, Attorney General of Oregon, Salem, Oregon, for Amicus State of Oregon; Karl A. Racine, Attorney General of The District of Columbia, Washington, D.C., for Amicus The District of Columbia.
Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges. Chief Judge Traxler wrote the OPINION as to Parts I, II, III, V, and VI, in which Judge Agee joined. Judge Agee wrote separately as to Part IV. Judge King wrote an opinion dissenting as to Part III and concurring in the judgment as to Parts IV and V. Chief Judge Traxler wrote a dissenting opinion as to Part IV.
TRAXLER, Chief Judge, wrote the OPINION as to Parts I, II, and III, in which Judge Agee joined.
In April 2013, Maryland passed the Firearm Safety Act (" FSA" ), which, among other things, bans law-abiding citizens, with the exception of retired law enforcement officers, from possessing the vast majority of semi-automatic rifles commonly kept by several million American citizens for defending their families and homes and other lawful purposes. Plaintiffs raise a number of challenges to the FSA, contending that the " assault weapons" ban trenches upon the core Second Amendment right to keep firearms in defense of hearth and home, that the FSA's ban of certain larger-capacity detachable magazines (" LCMs" ) likewise violates the Second Amendment, that the exception to the ban for retired officers violates the Equal Protection Clause, and that the FSA is void for vagueness to the extent that it prohibits possession of " copies" of the specifically identified semi-automatic rifles banned by the FSA. The district court rejected Plaintiffs' Second Amendment challenges, concluding that the " assault weapons" and larger-capacity magazine bans passed constitutional muster under intermediate scrutiny review. The district court also denied Plaintiffs' equal protection and vagueness claims.
In our view, Maryland law implicates the core protection of the Second Amendment--" the right of law-abiding responsible citizens to use arms in defense of hearth and home," District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and we are compelled by Heller and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), as well as our own precedent in the wake of these decisions, to conclude that the burden is substantial and strict scrutiny is the applicable standard of review for Plaintiffs' Second Amendment claim. Thus, the panel vacates the district court's denial of Plaintiffs' Second Amendment claims and remands for the district court to apply strict scrutiny. The panel affirms the district court's denial of Plaintiffs' Equal Protection challenge to the statutory exception allowing retired law enforcement officers to possess prohibited semi-automatic rifles. And, the panel affirms the district court's conclusion that the term " copies" as used by the FSA is not unconstitutionally vague.
The FSA substantially expanded Maryland's gun control laws. Prior to passage of the FSA, Maryland law permitted citizens in good standing to possess semi-automatic rifles after passing an extensive background check. The FSA made it
a crime after October 1, 2013, to " possess, sell, offer to sell, transfer, purchase, or receive" or to transport into Maryland any firearm designated as an " assault weapon." Md. Code, Crim. Law § 4-303(a). Under the FSA, the term " assault weapon" includes " assault long gun[s]," " assault pistol[s]," and " copycat weapon[s]." Id. at § 4-301(d). Plaintiffs' challenge in this appeal is limited to the ban on " assault long guns," i.e., most semi-automatic rifles. An " assault long gun" is defined as any one of the more than 60 semi-automatic rifle or shotgun models specifically listed in section 5-101(r)(2) of the Maryland Public Safety Code, see Md. Code, Crim. Law § 4-301(b), " or their copies," Md. Code, Pub. Safety § 5-101(r)(2). The FSA does not define the term " copies." The list of prohibited weapons includes the semi-automatic rifle models most popular by far among American citizens, the AR-15 " and all imitations" and the semi-automatic AK-47 " in all forms." Id. at § 5-101(r)(2)(ii) and (xv). Anyone who possesses a prohibited semi-automatic rifle or otherwise violates the FSA's restrictions on such rifles " is guilty of a misdemeanor" and is subject to a prison term of up to three years. Md. Code, Crim. Law § 4-306(a).
The FSA also imposed new limits on the acquisition of detachable magazines in Maryland. Prior to the FSA, Maryland law permitted the acquisition and transfer of detachable magazines with a capacity of up to 20 rounds. See 2002 Maryland Laws Ch. 26, § 2. The FSA now makes it illegal to " manufacture, sell, offer for sale, purchase, receive, or transfer a detachable magazine that has a capacity of more than 10 rounds of ammunition for a firearm." Md. Code, Crim. Law § 4-305(b). The FSA, however, does not expressly prohibit
the transportation of magazines holding more than 10 rounds into Maryland from out of state, as it does the transportation of semi-automatic rifles. The same penalties that apply to a violation of the statutory prohibitions against semi-automatic rifles apply to a violation of the provisions regulating magazines holding more than 10 rounds. See Md. Code, Crim. Law § 4-306(a).
The FSA provides a few exceptions to the ban on possessing semi-automatic rifles or LCMs. For example, the statute contains a grandfather clause pursuant to which " [a] person who lawfully possessed" or " completed an application to purchase" a prohibited semi-automatic rifle " before October 1, 2013" may lawfully continue to " possess and transport" it. See Md. Code, Crim. Law § 4-303(b)(3)(i). And the FSA's prohibitions do not apply to several classes of individuals, such as active law enforcement officers and licensed firearms dealers under certain circumstances. See Md. Code, Crim. Law § § 4-302(1), (3). Another exception allows retired state or local law enforcement agents to possess banned weapons and LCMs if the weapon or magazine was " sold or transferred to the [retired agent] by the law enforcement agency on retirement," or the retired agent " purchased or obtained" the weapon " for official use with the law enforcement agency before retirement." See Md. Code, Crim. Law § § 4-302(7)(i), (ii).
Plaintiff Stephen Kolbe is a life-long resident of Maryland who resides in Towson and owns a small business in Baltimore County. Kolbe owns " one full-size semiautomatic handgun" that is equipped with a standard detachable magazine that holds more than 10 rounds. J.A. 1851. Various personal experiences, including an incident in which an employee's ex-boyfriend threatened to come kill her at work but police did not respond for thirty minutes, and Kolbe's family's close proximity to " a high-traffic public highway," J.A. 1852, have caused Kolbe to conclude that he needs to keep firearms for the purpose of " self-defense in [his] home." J.A. 1851. But for the ban imposed by the FSA, Kolbe would purchase a semi-automatic rifle, which " possess[es] features which make[s] [it] ideal for self-defense in the home." J.A. 1851.
Plaintiff Andrew Turner is a Maryland resident who currently owns three semi-automatic rifles, now banned as assault weapons under the FSA, and a semi-automatic handgun, all of which come with standard detachable magazines holding more than 10 rounds. While on active duty in the United States Navy, Turner suffered an injury that makes it difficult for him to operate firearms and thus necessitates " access to full-capacity magazines . . . to ensure," among other things, his ability to defend himself in his home. J.A. 1856. According to Turner, he would purchase additional semi-automatic rifles with detachable LCMs if Maryland law did not prohibit him from doing so. Turner's primary purpose for owning such firearms is self-defense in his home, but he also uses his currently owned semi-automatic rifles for target shooting and hunting.
Finally, Wink's Sporting Goods, Inc., and Atlantic Guns, Inc. -- two businesses that operate in the firearms, hunting, and sport shooting industries -- joined the individual plaintiffs in challenging the FSA. Likewise, several trade, hunting and gun-owners' rights organizations joined as plaintiffs on their own behalf and on behalf of their members.
Just before the FSA took effect on October 1, 2013, Plaintiffs filed a Motion for a Temporary Restraining Order and sought declaratory and injunctive relief, arguing that the ban on possession of assault rifles and the 10-round limitation on detachable magazines abridges their rights under the Second Amendment; that the exemption for retired law enforcement officers under the FSA violates the Equal Protection Clause of the Fourteenth Amendment; and that the term " copies" as it is used in section 5-101(r)(2) of Maryland's Public Safety Code is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment.
After the district court denied Plaintiffs' Motion for a Temporary Restraining Order, the parties filed cross motions for summary judgment on the merits. The district court determined that intermediate scrutiny applied to the Second Amendment claims. In granting summary judgment to the State, the district court concluded, under intermediate scrutiny, that Maryland's ban on " assault" rifles and LCMs met the applicable standards and was thus valid under the Second Amendment. See Kolbe v. O'Malley, 42 F.Supp.3d 768, 797 (D. Md. 2014). The district court also granted summary judgment for the State on Plaintiffs' Equal Protection claim to the statutory exception for retired law enforcement officers, holding that retired officers " are differently situated" than ordinary citizens who wish to obtain assault rifles. Id. at 798. Finally, the district court granted summary judgment for the State on Plaintiffs' vagueness claim based on its conclusion that the ban on possessing assault rifles " or their copies" sets forth " an identifiable core of prohibited conduct." Id. at 802.
II. Standard of Review
As we noted above, the district court decided this case on cross-motions for summary judgment. " When faced with cross-motions for summary judgment, we consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Bacon v. City of Richmond, 475 F.3d 633, 637-38 (4th Cir. 2007) (internal quotation marks omitted). In doing so, we apply the ordinary de novo standard, while " resolving all doubts and inferences in favor of the non-moving party." Id.
Plaintiffs challenge each of the district court's rulings. We address these challenges seriatim.
III. Second Amendment
We turn first to Plaintiffs' Second Amendment challenge to the FSA's ban on semi-automatic rifles and LCMs. The Second Amendment, of course, provides that " [a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In United States v. Chester, we fashioned a two-part approach to resolving Second Amendment challenges, see 628 F.3d 673, 680 (4th Cir. 2010), much like the approach adopted by several of our sister circuits in the wake of Heller, see, e.g., Fyock v. Sunnyvale, 779 F.3d 991, 996 (9th Cir. 2015); Ezell v. City of Chicago, 651 F.3d 684, 701-03 (7th Cir. 2011); Heller v. District of Columbia (" Heller II" ), 670 F.3d 1244, 1252, 399 U.S.App.D.C. 314 (D.C. Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). First, we ask " whether the challenged law imposes a burden on conduct
falling within the scope of the Second Amendment's guarantee." Chester, 628 F.3d at 680 (internal quotation marks omitted). The answer to this question requires an " historical inquiry" into " whether the conduct at issue was understood to be within the scope of the right at the time of ratification." Id.; see Heller, 554 U.S. at 626-27. If the answer to this initial inquiry is no, " the challenged law is valid." Chester, 628 F.3d at 680. However, " [i]f the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically ...