Pursuant to its reading of Heller, the panel majority determined that the banned assault weapons and large-capacity magazines are indeed protected by the Second Amendment, and that the FSA substantially burdens the core Second Amendment right to use arms for self-defense in the home. We thereby became the first and only court of appeals to rule that a ban on assault weapons or large-capacity magazines deserves strict scrutiny. Meanwhile, the panel affirmed the district court's denial of the plaintiffs' Fourteenth Amendment claims. On March 4, 2016, the panel's decision was vacated in its entirety by our Court's grant of rehearing en banc in this case. We heard argument en banc on May 11, 2016, and the appeal is now ripe for disposition....
As explained below, we are satisfied to affirm the district court's judgment, in large part adopting the Opinion's cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth. We diverge from the district court on one notable point: We conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are "like" "M-16 rifles" — "weapons that are most useful in military service" — which the Heller Court singled out as being beyond the Second Amendment's reach. See 554 U.S. at 627, 128 S.Ct. 2783 (rejecting the notion that the Second Amendment safeguards "M-16 rifles and the like"). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. Nevertheless, we also find it prudent to rule that — even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection — the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review....
The Second Amendment's "core protection," the Heller Court announced, is "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." See 554 U.S. at 634-35, 128 S.Ct. 2783. Concomitantly, the Court emphasized that "the right secured by the Second Amendment is not unlimited," in that it is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 626, 128 S.Ct. 2783. The Court cautioned, for example, that it was not "cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id.
Of utmost significance here, the Heller Court recognized that "another important limitation on the right to keep and carry arms" is that the right "extends only to certain types of weapons." See 554 U.S. at 623, 627, 128 S.Ct. 2783 (discussing United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939)). The Court explained that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," including "short-barreled shotguns" and "machineguns." Id. at 624-25, 128 S.Ct. 2783. The Court elsewhere described "the sorts of weapons protected" as being "those in common use at the time," and observed that such "limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Id. at 627, 128 S.Ct. 2783 (internal quotation marks omitted) (citing, inter alia, 4 Blackstone 148-49 (1769)).[9]
Continuing on, the Heller Court specified that "weapons that are most useful in military service — M-16 rifles and the like — may be banned" without infringement upon the Second Amendment right. See 554 U.S. at 627, 128 S.Ct. 2783. The Court recognized that the lack of constitutional protection for today's military weapons might inspire the argument that "the Second Amendment right is completely detached from the prefatory clause." Id. The Court explained, however, that the fit between the prefatory and operative clauses is properly measured "at the time of the Second Amendment's ratification," when "the conception of the militia ... was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty." Id. The fit is not measured today, when a militia may "require sophisticated arms that are highly unusual in society at large," including arms that "could be useful against modern-day bombers and tanks." Id. It was therefore immaterial to the Court's interpretation of the Second Amendment that "modern developments have limited the degree of fit between the prefatory clause and the protected right." Id. at 627-28, 128 S.Ct. 2783. And thus, there was simply no inconsistency between the Court's interpretation of the Second Amendment and its pronouncement that some of today's weapons lack constitutional protection precisely because they "are most useful in military service."...
we first ask "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." See Chester, 628 F.3d at 680 (internal quotation marks omitted). If the answer is no, "then the challenged law is valid." Id. If, however, the challenged law imposes a burden on conduct protected by the Second Amendment, we next "apply[] an appropriate form of means-end scrutiny." Id. Because "Heller left open the level of scrutiny applicable to review a law that burdens conduct protected under the Second Amendment, other than to indicate that rational-basis review would not apply in this context," we must "select between strict scrutiny and intermediate scrutiny." Id. at 682. In pinpointing the applicable standard of review, we may "look[] to the First Amendment as a guide." Id. With respect to a claim made pursuant to the First or the Second Amendment, "the level of scrutiny we apply depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right." Id.
To satisfy strict scrutiny, the government must prove that the challenged law is "narrowly tailored to achieve a compelling governmental interest." See Abrams v. Johnson, 521 U.S. 74, 82, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997). Strict scrutiny is thereby "the most demanding test known to constitutional law." See City of Boerne v. Flores, 521 U.S. 507, 534, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The less onerous standard of intermediate scrutiny requires the government to show that the challenged law "is reasonably adapted to a substantial governmental interest." See United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011); see also Chester, 628 F.3d at 683 ("[T]he government must demonstrate under the intermediate scrutiny standard that there is a reasonable fit between the challenged regulation and a substantial governmental objective." (internal quotation marks omitted)). Intermediate scrutiny does not demand that the challenged law "be the least intrusive means of achieving the relevant government objective, or that there be no burden whatsoever on the individual right in question." See Masciandaro, 638 F.3d at 474. In other words, there must be "a fit that is `reasonable, not perfect.'" See Woollard v. Gallagher, 712 F.3d 865, 878 (4th Cir. 2013) (quoting United States v. Carter, 669 F.3d 411, 417 (4th Cir. 2012)).
Until this Second Amendment challenge to the FSA's bans on assault weapons and large-capacity magazines, we have not had occasion to identify the standard of review applicable to a law that bars law-abiding citizens from possessing arms in their homes. In Masciandaro, we "assume[d] that any law that would burden the `fundamental,' core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny." See 638 F.3d at 470. Thereafter, in Woollard, we noted that Masciandaro had "`assume[d]'" any inside-the-home regulation would be subject to strict scrutiny, and we described the plaintiff's related — and unsuccessful — contention that "the right to arm oneself in public [is] on equal footing with the right to arm oneself at home, necessitating that we apply strict scrutiny in our review of [an outside-the-home regulation]." See Woollard, 712 F.3d at 876, 878 (4th Cir. 2013) (quoting Masciandaro, 638 F.3d at 470). Notably, however, neither Masciandaro nor Woollard purported to, or had reason to, decide whether strict scrutiny always, or even ever, applies to laws burdening 134*134 the right of self-defense in the home. See also, e.g., United States v. Hosford, 843 F.3d 161, 168 (4th Cir. 2016) (declining to apply strict scrutiny to a firearms prohibition that "addresses only conduct occurring outside the home," without deciding if or when strict scrutiny applies to a law reaching inside the home)....
the district court elected to assume that the banned assault weapons and large-capacity magazines are constitutionally protected, and thus that the FSA "places some burden on the Second Amendment right."...
he district court relied in part on the 2011 decision of the District of Columbia Circuit in Heller II. The Heller II court assumed that the District's prohibitions against military-style assault rifles and large-capacity magazines impinge upon the Second Amendment right and then upheld the bans under the intermediate scrutiny standard....
We could resolve the Second Amendment aspects of this appeal by adopting the district court's sound analysis and thereby follow the lead of our distinguished colleagues on the Second and District of Columbia Circuits. That is, we could simply assume that the assault weapons and large-capacity magazines outlawed in Maryland are protected by the Second Amendment and then deem the FSA constitutional under the intermediate scrutiny standard of review. It is more appropriate, however, in light of the dissent's view that such constitutional protection exists, that we first acknowledge what the Supreme Court's Heller decision makes clear: Because the banned assault weapons and large-capacity magazines are "like" "M-16 rifles" — "weapons that are most useful in military service" — they are among those arms that the Second Amendment does not shield. ...
On the issue of whether the banned assault weapons and large-capacity magazines are protected by the Second Amendment, the Heller decision raises various questions. Those include: How many assault weapons and large-capacity magazines must there be to consider them "in common use at the time"? In resolving that issue, should we focus on how many assault weapons and large-capacity magazines are owned; or on how many owners there are; or on how many of the weapons and magazines are merely in circulation? Do we count the weapons and magazines in Maryland only, or in all of the United States? Is being "in common use at the time" coextensive with being "typically 136*136 possessed by law-abiding citizens for lawful purposes"? Must the assault weapons and large-capacity magazines be possessed for any "lawful purpose[]" or, more particularly and importantly, the "protection of one's home and family"? Is not being "in common use at the time" the same as being "dangerous and unusual"? Is the standard "dangerous and unusual," or is it actually "dangerous or unusual"....
Thankfully, however, we need not answer all those difficult questions today, because Heller also presents us with a dispositive and relatively easy inquiry: Are the banned assault weapons and large-capacity magazines "like" "M-16 rifles," i.e., "weapons that are most useful in military service," and thus outside the ambit of the Second Amendment? See 554 U.S. at 627, 128 S.Ct. 2783. The answer to that dispositive and relatively easy inquiry is plainly in the affirmative....
Whatever their other potential uses — including self-defense — the AR-15, other assault weapons, and large-capacity magazines prohibited by the FSA are unquestionably most useful in military service. That is, the banned assault weapons are designed to "kill[] or disabl[e] the enemy" on the battlefield. See J.A. 735. The very features that qualify a firearm as a banned assault weapon — such as flash suppressors, barrel shrouds, folding and telescoping stocks, pistol grips, grenade launchers, night sights, and the ability to accept bayonets and large-capacity magazines — "serve specific, combat-functional ends." See id. at 1120. And, "[t]he net effect of these military combat features is a capability for lethality — more wounds, more serious, in more victims — far beyond that of other firearms in general, including other semiautomatic guns." Id. at 1121-22.
Likewise, the banned large-capacity magazines "are particularly designed and most suitable for military and law enforcement applications." See J.A. 891 (noting that large-capacity magazines are meant to "provide[] soldiers with a large ammunition supply and the ability to reload rapidly"). Large-capacity magazines enable a shooter to hit "multiple human targets very rapidly"; "contribute to the unique function of any assault weapon to deliver extraordinary firepower"; and are a "uniquely military feature[]" of both the banned assault weapons and other firearms to which they may be attached. ...
Because the banned assault weapons and large-capacity magazines are clearly most useful in military service, we are compelled by Heller to recognize that those weapons and magazines are not constitutionally protected. On that basis, we affirm the district court's award of summary judgment in favor of the State with respect to the plaintiffs' Second Amendment claims...
In contrast, there is scant evidence in the record before us that the FSA-banned assault weapons and large-capacity magazines are possessed, or even suitable, for self-protection...
Our ruling on Second Amendment protection is limited and clear: Because the FSA-banned assault weapons and large-capacity magazines are like M16s, in that they are most useful in military service, they are not protected by the Second Amendment. ... We also take notice of the scant evidence in the record that the banned assault weapons and large-capacity magazines are possessed or suitable for self-protection....
Ultimately, the dissent would leave it to individual citizens — and disempower legislators — to determine whether a weapon may be possessed for self-defense. ...
Affirmed.
AWB SCOTUS case - here we go (maybe)
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