Gun Owners' Action League, Inc. v. Swift

United States Court of Appeals
For the First Circuit

No. 00-2357

GUN OWNERS' ACTION LEAGUE, INC.; OUTDOOR MESSAGE COOPERATIVE, INC.;
MASSACHUSETTS SPORTSMEN'S JUNIOR CONSERVATION CAMP INC.; A.G. GUNS &
AMMO, INC.; MARK COHEN; JOHN DOE II; JAMES F. GETTENS; DANA H. CROWE;
LORI CROWE; BRIAN E. DUNN; JOHN P. HEARSON; TOM LAROCHE; ANN D.
LAROCHE; ROBERT L. WALTER; JOHN DOE I; GOAL FOUNDATION, INC.,

Plaintiffs, Appellants,

v.

JANE SWIFT, Acting Governor, Commonwealth of Massachusetts; THOMAS F.
REILLY, Attorney General, Commonwealth of Massachusetts; JOHN DIFAVA,
Colonel, Massachusetts State Police; MARTHA COAKLEY, District
Attorney, Middlesex County, MA; EDWARD DAVIS, Superintendent, Police
Department, Lowell, MA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF MASSACHUSETTS

[Hon. George O'Toole, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Zobel,* District Judge.

Stephen P. Halbrook, with whom Edward F. George, Jr. was on
brief for appellants.
Edward J. DeAngelo, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General of Massachusetts, and Adam
Simms, Assistant Attorney General, were on brief for appellees.
 *Of the District of Massachusetts, sitting by designation.

Edward L. Morris on brief for appellee Edward Davis.
Michael Paris, Benjamin S. Albert, Randall E. Ravitz, and
Brown Rudnick Freed & Gesmer, on consolidated brief for The
Center to Prevent Handgun Violence, the International
Brotherhood of Police Officers, the American Academy of Child
and Adolescent Psychiatry, the American Association of
Suicidology, the American Medical Student Association, the
American Public Health Association, the Massachusetts Brain
Injury Association, and Stop Handgun Violence, Inc., amici
curiae.

March 25, 2002
 LIPEZ, Circuit Judge. This case requires us to consider the

constitutionality of "An Act Relative to Gun Control in the

Commonwealth," a law that placed new restrictions on guns classified as

"Large Capacity Weapons," and increased the penalties for unlicensed

possession. 1998 Mass. Acts ch. 180, §§ 1-80 (codified in Mass. Gen.

Laws ch. 140 et seq.) ("Act"). Plaintiffs allege that the Act is

unconstitutional because of the vagueness of important definitions

within the Act. They allege the same infirmity in a related furnishing

statute. They also assert that the Act's regulation of certain gun

clubs violates their rights to freedom of expression, equal protection

and freedom of association. In response to the Commonwealth's motion

to dismiss, the district court dismissed all of the counts. We affirm.

I. Background

A. Provisions of the Act

Given the facial challenge to the 1998 gun control law, we must

describe the law in some detail.

1. Licensing of "Large Capacity Weapons"

Owners of firearms in the Commonwealth of Massachusetts have long

needed to license these weapons. See 1906 Mass. Acts 172 (requiring

license for carrying loaded pistol). Before the Act went into effect,

a two-tiered licensing system prevailed, based on the categories of (1)

rifles and shotguns and (2) "firearms," including pistols, revolvers,

and other guns with short barrels. Mass. Gen. Laws ch. 140, § 121

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(1997). A citizen with a license could possess all these weapons,

while a citizen with a Firearms Identification Card ("FID Card") could

only possess rifles and shotguns. Mass. Gen. Laws ch. 140, §§ 121,

129C, 131 et seq. (1997).

The Act created a three-tiered licensing system by devising a new

classification for large capacity weapons. Mass. Gen. Laws ch. 140, §

121. A Class A license entitles its possessor to own any type of

weapon, including a large capacity weapon. Mass. Gen. Laws ch. 140, §

131(a). A person with a Class B license can possess only weapons, be

they rifles, shotguns, or firearms, that are not large capacity

weapons. Mass. Gen. Laws ch. 140, § 131(b). A person with an FID Card

has the same rights as someone with a Class B license except that he or

she cannot carry firearms. Mass. Gen. Laws ch. 140, § 129C. Again,

firearms are pistols, revolvers, and guns with short barrels. Id.

The Act defines a "large capacity weapon" as "any firearm, rifle

or shotgun:

(i) that is semiautomatic with a fixed large capacity feeding
device; (ii) that is semiautomatic and capable of accepting, or
readily modifiable to accept, any detachable large capacity
feeding device; (iii) that employs a rotating cylinder capable
of accepting more than ten rounds of ammunition in a rifle or
firearm and more than five shotgun shells in the case of a shotgun
or firearm; or (iv) that is an assault weapon.

Mass. Gen. Laws ch. 140, § 121. A "large capacity feeding device" is:

(i) a fixed or detachable magazine, box, drum, feed strip or
similar device capable of accepting, or that can be readily

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 converted to accept, more than ten rounds of ammunition or more
than five shotgun shells; or (ii) a large capacity ammunition
feeding device as defined in the federal Public Safety and
Recreational Firearms Use Protection Act, 18 U.S.C. § 921(a)(31).

Id. The statute also excludes certain weapons from the definition of

large capacity weapons:

The term "large capacity weapon" shall be a secondary designation
and shall apply to a weapon in addition to its primary designation
as a firearm, rifle or shotgun and shall not include: (i) any
weapon that was manufactured in or prior to the year 1899; (ii)
any weapon that operates by manual bolt, pump, lever or slide
action; (iii) any weapon that is a single-shot weapon; (iv) any
weapon that has been modified so as to render it permanently
inoperable or otherwise rendered permanently unable to be
designated a large capacity weapon; or (v) any weapon that is an
antique or relic, theatrical prop or other weapon that is not
capable of firing a projectile and which is not intended for use
as a functional weapon and cannot be readily modified through a
combination of available parts into an operable large capacity
weapon.

Id.

2. The Roster of Large Capacity Weapons

To ensure that its prohibitions are clarified as needed, the Act

provides that the Secretary of the Executive Office of Public Safety

("Secretary") shall publish and distribute a "roster" of weapons which

fit the statutory definition of "large capacity weapons." Mass. Gen.

Laws ch. 140, § 131 3/4. The Secretary has compiled and published the

roster. The roster is presently available on the web site of the

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Executive Office of Public Safety.1 The first roster was issued on

October 14, 1998, one week before the effective date of the Act.

The roster is not intended as an exhaustive list of weapons deemed

"large capacity" under the terms of the Act, but it does list dozens of

weapons considered "large capacity weapons" under the Act. Executive

Office of Public Safety, Large Capacity Weapon Roster Effective

February 15, 2002. The Secretary also prefaced the roster with

clarifications of some elements of the statutory definition of large

capacity weapons, including the terms "capable of accepting" and

"readily modifiable to accept" a large capacity feeding device. Id.

3. The Licensing Process

Anyone seeking a Class A or B license may apply either to the

local chief of police or the Colonel of the State Police. Mass. Gen.

Laws ch. 140, § 131(d). The licensing authority may issue the license

if 1) the applicant is not automatically disqualified by reasons listed

in the statute (such as prior conviction of certain crimes) and 2) the

licensing authority determines that the applicant is a "suitable

person" and has reason for the license. Id. A person seeking an FID

card may apply to the local chief of police. Mass. Gen. Laws ch. 140,

§ 129B. The chief of police must issue the license unless a listed

reason disqualifies the applicant. Id. Anyone denied either a Class

1See http://www.state.ma.us/eops/download/large_cap.pdf (last
visited Feb. 20, 2002).

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A or B license or an FID card may challenge that denial in the courts

of the Commonwealth. Mass. Gen. Laws ch. 140, §§ 129B(5), 131(f).

4. Criminal Provisions

Both before and after the Act, anyone who "knowingly" possessed

weapons without proper state licensing could be punished by

imprisonment. Mass. Gen. Laws ch. 260, § 10(a) (1997). The Act

provided for a specific term of punishment for knowing unlicensed

possession of a large capacity weapon: between two-and-a-half and ten

years in prison. Mass. Gen. Laws ch. 269, § 10(m). The Act also

increased existing penalties for firearms dealers who sell weapons to

persons who do not have the license necessary to possess such weapons.

Mass. Gen. Laws ch. 269, § 10F.

The Act also amended existing restrictions on the selling or

furnishing of weapons to persons under a certain age. Massachusetts

law prohibits selling or furnishing a rifle or shotgun to anyone under

the age of 18, and prohibits selling or furnishing a firearm or large

capacity weapon to anyone under 21 years of age. Mass. Gen. Laws ch.

140, § 130. The Act updated the furnishing statute so that it would

reflect the new three-tier licensing scheme. Id. It also increased

the penalties for selling or furnishing such weapons to underage

individuals. Id.

5. Class A-Licensed Gun Clubs

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 Like individuals, organizations (such as gun clubs) can also

possess weapons. There is no statutory requirement that a gun club not

using large capacity weapons obtain a license. However, a gun club

which possesses and stores large capacity weapons must obtain a Class

A license. According to the Act, a gun club with a Class A license can

possess, store, and use large capacity weapons. Mass. Gen. Laws ch.

140, § 131(a). A member of a Class A-licensed gun club may use large

capacity weapons, even if the member does not possess a Class A

license, provided that the member has at least a Class B license or an

FID card. Id. A Class A licensed gun club can permit non-members

without a license or an FID card to use large capacity weapons,

provided that such non-members fire under the supervision of a

certified firearms safety instructor or a properly licensed club

member. Id.

Gun clubs which want to possess and store large capacity weapons

must apply to the Colonel of the State Police in order to obtain a

Class A license. Id. According to the statute, "[t]he colonel of

state police may, after an investigation, grant a Class A license to a

club or facility with an on-site shooting range or gallery . . .

provided, however, that not less than one shareholder of such club

shall be qualified and suitable to be issued such license." Id.

The Act also regulates target-shooting at Class A-licensed clubs.

Plaintiffs challenge a regulation preventing such gun clubs from

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permitting "shooting at targets that depict human figures, human

effigies, human silhouettes or any human images thereof, except by

public safety personnel performing in line with their official duties."

Id. A person lawfully licensed and shooting in a place where it is

lawful to fire weapons (other than a Class A-licensed club) may shoot

at a target depicting a human figure.

B. The Plaintiffs and their Challenges to the Act

The sixteen plaintiffs who have filed suit to enjoin enforcement

of the Act may be divided into three classes. The business plaintiffs,

all of whom are licensed by the Commonwealth of Massachusetts and the

United States as firearms dealers, are A.G. Guns & Ammo, Inc., Mark

Cohen (d/b/a The Powderhorn), and John Doe II (a state trooper). The

individual plaintiffs include an attorney, an engineering manager,

parents of juveniles involved in shooting sports, software engineers,

a minister, and retired Army officers (one of whom is disabled and

participates in wheelchair competitive shooting). Four Massachusetts

corporations are associational plaintiffs: the Gun Owners Action

League ("GOAL") (which consists of 9,000 individuals and 200 clubs),

Outdoor Message Cooperative, Inc. (which publishes a newspaper for GOAL

members), the Masachusetts Sportsmen's Junior Conservation Camp, Inc.

(which trains youth in outdoor skills, including shooting), and GOAL

Foundation, Inc. (which promotes gun safety programs for children).

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 These businesses, individuals, and associations have challenged

the constitutionality of the Act by suing the Governor and Attorney

General of Massachusetts, and other officials who enforce it. Their

original complaint consisted of ten counts. The district court granted

the defendants' motion to dismiss with respect to all ten counts.

Appellants appeal only the dismissal of Counts 1, 3, 4, 6, and 10. The

counts may be grouped as follows:

Vagueness Counts: Count 4 alleges that the Act's definition of a

large capacity weapon is unconstitutionally vague; Count 6 alleges the

same regarding the Act's definition of large capacity feeding device.

The plaintiffs claim that these vague definitions leave thousands of

gun owners in Massachusetts unable to determine whether they need to

license their guns as large capacity weapons. Count 10 alleges that the

Act's definition of "furnishing" weapons and ammunition to persons

under 21 is also vague.

Freedom of Expression Count: Count 1 alleges that the Act's

"censorship of target images violates free speech and equal

protection." The statute prohibits shooting at human-shaped targets or

human images at Class A gun clubs. The plaintiffs believe that this

regulation either is designed to curtail the expressive conduct of

shooting at human images, or, even if not intended to do so,

nevertheless impermissibly limits that conduct.

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 Equal Protection and Freedom of Association Count: Count 3 alleges

that restricting Class A licenses to "incorporated clubs with

shareholders. . . . irrationally discriminates against incorporated

clubs without shareholders and their members and violates the right to

freedom of association." The plaintiffs allege that the shareholder

requirement bears no rational relationship to the statute's purported

aims. They also argue that the "Act offends freedom of association by

granting special privileges to members of stock-corporation clubs and

denying such privileges to persons who are not members of such clubs

and cannot obtain a Class A license."

C. The Decision Below

The District Court dismissed appellants' vagueness challenge on

ripeness grounds, finding that "none of these claims is ripe as to any

of the plaintiffs." The court added that, even if ripe, the vagueness

challenges were not "meritorious" because "the definitions for the

purposes of the Act's licensing requirements do not regulate or limit

constitutionally protected conduct . . . . [and are] not impermissibly

vague in all applications."2 The district court dismissed the freedom

of expression claim (Count 1) on the ground that the Act regulated

2 The Supreme Court has held that a facial vagueness challenge to
a statute may only succeed if the plaintiff "demonstrate[s] that the
law is impermissibly vague in all of its applications." Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497
(1982) (upholding anti-drug paraphernalia ordinance); see also Whiting
v. Town of Westerly, 942 F.2d 18, 21-22 (1st Cir. 1991) (upholding town
ban on sleeping in public place).

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conduct, not speech. It also summarily dismissed the freedom of

association claim (Count 3) "for the reasons the defendants have

pointed out;" namely, that gun clubs do not need to obtain Class A

licenses and that Class A licenses do not require their possessors to

espouse any viewpoint. "We will affirm the dismissal of the

complaint if, and only if, accepting all well-pleaded facts as true and

drawing all reasonable inferences in favor of the plaintiff, the

complaint 'fail[s] to state a claim upon which relief can be granted.'"

Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24,

30 (1st Cir. 2000) (quoting Fed. R. Civ. P. 12(b)(6)). Therefore, "the

complaint is properly dismissed only when the allegations are such that

'the plaintiff can prove no set of facts to support [the] claim for

relief.'" Id. (quoting Rockwell v. Cape Cod Hosp., 26 F.3d 254, 260

(1st Cir.1994)). We review below each element of the dismissal,

considering the vagueness challenges in Part II, the First Amendment

challenge to the prohibition on shooting at human-shaped targets in

Part III, the equal protection challenge to the licenses for Class A

gun clubs and facilities in Part IV, and the freedom of association

claim in Part V.

II. Vagueness

In appealing the dismissal of the vagueness counts (Counts 4, 6,

10), the appellants argue that they cannot determine whether they own

the types of weapons regulated by the Act, putting them at risk of a

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violation of a criminal law. Hence, they claim that the statutory

prohibitions on owning large capacity weapons and furnishing weapons to

persons under 21 are facially unconstitutional.

The first statutory definition of a large capacity weapon is "any

firearm, rifle or shotgun: (i) that is semiautomatic with a fixed large

capacity feeding device."3 Mass. Gen. Laws ch. 140, § 121. The Act

further defines a "large capacity feeding device" to include a magazine

or similar device "capable of accepting, or that can be readily

converted to accept, more than ten rounds of ammunition or more than

five shotgun shells." Id. According to their complaint, "[s]everal

plaintiffs . . . possess semiautomatics with fixed tubular feeding

devices that accept no more than 10 rounds of the ammunition they

3 A "firearm" is defined in the statute as

a pistol, revolver or other weapon of any description, loaded or
unloaded, from which a shot or bullet can be discharged and of
which the length of the barrel or barrels is less than 16 inches
or 18 inches in the case of a shotgun as originally manufactured;
provided, however, that the term firearm shall not include any
weapon that is: (i) constructed in a shape that does not resemble
a handgun, short-barreled rifle or short-barreled shotgun
including, but not limited to, covert weapons that resemble key-
chains, pens, cigarette- lighters or cigarette-packages; or (ii)
not detectable as a weapon or potential weapon by x-ray machines
commonly used at airports or walk- through metal detectors.

Mass. Gen. Laws ch. 140, § 121. A "rifle" is a weapon having "a rifled
bore with a barrel length equal to or greater than 16 inches and
capable of discharging a shot or bullet for each pull of the trigger."
Id. A "Shotgun" is a weapon having "a smooth bore with a barrel length
equal to or greater than 18 inches with an overall length equal to or
greater than 26 inches, and capable of discharging a shot or bullet for
each pull of the trigger." Id.

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possess or no more than five of the shotgun shells they possess.

However, such persons have no way of knowing if these feeding devices

will accept more rounds or shells of shorter lengths." In other words,

the plaintiffs complain that they cannot determine the scope of the

definition without ascertaining (and continuing to ascertain) the exact

dimensions of available ammunition.

The second statutory definition of large capacity weapon includes

any weapon "that is semiautomatic and capable of accepting, or readily

modifiable to accept, any detachable large capacity feeding device."

Id. According to the plaintiffs:

The term "capable of accepting" a feeding device that will accept
more than ten rounds could be interepreted at least five ways: (1)
the owner must actually possess such a device; (2) the owner does
not possess the device, but the weapon as manufactured and sold
included such a device; (3) such a device is not possessed but is
available in the ordinary channels of commerce; (4) such a device
is not available but someone on the planet has made at least one;
or (5) no such device has ever been made, but would fit the weapon
if it existed and was possessed by the owner.

The plaintiffs argue that they could only comply with the statute if it

made clear which of these five interpretations is correct.

A. Ripeness Doctrine

When citizens cannot determine what conduct a law proscribes, the

law's vagueness may raise constitutional due process concerns. "The

constitutional requirement of definiteness is violated by a criminal

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statute that fails to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by the statute."

United States v. Harriss, 347 U.S. 612, 617 (1954). The principle

underlying the doctrine is that "no man shall be held criminally

responsible for conduct which he could not reasonably understand to be

proscribed." Id.

Alleging that the Act is unconstitutionally vague, the plaintiffs

complain about the threat of enforcement, but not any particular

instances of enforcement. Such facial challenges raise special

justiciability concerns. Particularly relevant here is the doctrine of

ripeness, which "asks whether an injury that has not yet happened is

sufficiently likely to happen" to warrant judicial review. 13A Charles

Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice

and Procedure, § 3531.12, at 50 (2d ed. 1984) (citing Warth v. Seldin,

422 U.S. 490, 499 n.10 (1975) (defining ripeness inquiry as "whether

the harm asserted has matured sufficiently to warrant judicial

intervention.")). The requirement of ripeness is "particularly

relevant in the context of actions for preenforcement review of

statutes," because it "focuses on the timing of the action." Navegar,

Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997).

In determining ripeness, we apply a familiar test: "'the question

in each case is whether . . . there is a substantial controversy,

between parties having adverse legal interests, of sufficient immediacy

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and reality to warrant the issuance of a declaratory judgment.'" Lake

Carriers' Assn. v. MacMullan, 406 U.S. 498, 506 (1972) (quoting

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273

(1941)). There are several important reasons for a court to exercise

the "passive virtue"4 of waiting for a controversy to mature before

passing judgment on the merits:

[C]ourts should not render decisions absent a genuine need to
resolve a real dispute. Unnecessary decisions dissipate judicial
energies better conserved for litigants who have a real need for
official assistance. . . . Defendants, moreover, should not be
forced to bear the burdens of litigation without substantial
justification, and in any event may find themselves unable to
litigate intelligently if they are forced to grapple with
hypothetical possibilities rather than immediate facts.

Wright, Miller, and Cooper, § 3532.1, at 114-5; see also United States

v. Hilton, 167 F.3d 61 (1st Cir. 1999) (declining to entertain

overbreadth challenge to the Child Online Privacy Protection Act for

similar reasons). These concerns often militate against preenforcement

review.

Nevertheless, threats of enforcement of a vague statute can

support a facial challenge to a statute when certain conditions are

met. "'[O]ne does not have to await the consummation of threatened

injury to obtain preventive relief. If the injury is certainly

impending that is enough.'" Babbitt v. United Farm Workers Nat'l

4 See Alexander Bickel, The Least Dangerous Branch 111 (1962).

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Union, 442 U.S. 289, 298 (1979) (quoting Pennsylvania v. West Virginia,

262 U.S. 553, 593 (1923)); see also Wright, Miller & Cooper, § 3532.5,

at 183 (explaining that the opportunity to offer a constitutional

defense at a criminal proceeding "simply is not an adequate remedy.").

To determine whether the threat of enforcement of an allegedly vague

statute is ripe for judicial review, we examine "the fitness of the

issues for judicial decision and the hardship to the parties of

withholding court consideration." Abbott Labs. v. Gardner, 387 U.S.

136, 149 (1967). "[F]itness typically involves subsidiary queries

concerning finality, definiteness, and the extent to which resolution

of the challenge depends upon facts that may not yet be sufficiently

developed, whereas hardship typically turns upon whether the challenged

action creates a direct and immediate dilemma for the parties." Rhode

Island Ass’n of Realtors, Inc., v. Whitehouse, 199 F.3d 26, 33 (1st

Cir. 1999) (internal quotation marks omitted). We turn to these

hardship and fitness considerations.

1. Hardship

In all of the vagueness counts, the main hardship alleged by the

plaintiffs is the threat of prosecution. A threatened prosecution is

only immediate enough to satisfy the hardship prong of the ripeness

inquiry when "the challenged action creates a 'direct and immediate'

dilemma for the parties." W.R. Grace & Co. v. United States Envtl.

Prot. Agency, 959 F.2d 360, 364 (1st Cir., 1992) (quoting Abbott Labs.,

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387 U.S. at 152 (1967)). Such a dilemma exists when threatened

prosecution puts the party seeking preenforcement review "between a

rock and a hard place--absent the availability of preenforcement

review, she must either forego possibly lawful activity because of her

well-founded fear of prosecution, or willfully violate the statute,

thereby subjecting herself to criminal prosecution and punishment."

Navegar, 103 F.3d at 998 ( citing Babbitt, 442 U.S. at 298-99). The

plaintiffs allege that they face such a dilemma because they must

choose between costly compliance (giving up possession of all guns

that might be large capacity weapons) or risky noncompliance (keeping

their guns and worrying about prosecution for possessing large capacity

weapons).

That argument might have some force if the Act banned large

capacity weapons outright instead of licensing them. For example, in

People's Rights Organization, Inc. v. City of Columbus, 152 F.3d 522

(6th Cir. 1998), where the plaintiffs challenged succesfully on

vagueness grounds a municipal ordinance banning assault weapons, the

preenforcement challenge was ripe for review because the law presented

those plaintiffs with a "Hobson's choice[:] [t]hey [could] either

possess their firearms in Columbus and risk prosecution under the

City's law, or, alternatively, they [could] store their weapons outside

the City, depriving themselves of the use and possession of the

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weapons."5 People's Rights Org., 152 F.3d at 529 (holding that city

ordinance's ban on assault weapons was vague because the ordinance

lacked a scienter requirement and its definitions of assault weapons,

inter alia, unfairly required gun consumers to ascertain the

developmental history of particular weapons or monitor the precise

types of ammunition available for their weapons). Here, the

plaintiffs have a third option: obtaining a license for their weapons.6

Confronted with this licensing argument, the plaintiffs respond

that they do not know whether they need a license. However, we have

long held that all owners of firearms are on notice that they are

subject to regulation, including licensing. See United States v.

DeBartolo, 482 F.2d 312, 316 (1st Cir. 1973) (internal quotation marks

5 In Nat'l Rifle Assoc. v. Magaw 132 F.3d 272 (6th Cir. 1997) the
same court ruled that the facial challenge of certain gun manufacturers
to the federal Crime Control Act of 1994 was ripe because of the
economic harms suffered by businesses which sold guns. Like the
Columbus ordinance, the Crime Control Act also lacked a licensing
scheme, making Magaw distinguishable for the same reasons.
6 The plaintiffs cite only one case in which a facial challenge to
a state licensing scheme for guns has been held ripe. Coalition of New
Jersey Sportsmen, Inc. v. Whitman, 44 F. Supp.2d 666, 673 n.10 (D.N.J.
1999). Although this case ultimately repudiated the type of challenge
they propose here, the plaintiffs rely upon it because of its
justiciability holding. Again, the case is distinguishable. The New
Jersey law examined in Coalition was effectively a ban on assault
weapons. As an earlier decision evaluating the New Jersey law stated,
"the prohibition is de facto [because of the] . . . . extremely
rigorous qualification process required for receiving a license."
Coalition of New Jersey Sportsmen v. Florio, 744 F.Supp. 602, 608
(D.N.J. 1990). The plaintiffs have never alleged that the Massachusetts
licensing process amounts to a de facto ban.

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omitted) (rejecting a gun transferor's due process challenge to a

conviction for transferring a gun without a license because "where, as

here . . . dangerous or deleterious devices . . . are involved, the

probability of regulation is so great that anyone who is aware that he

is in possession of them or dealing with them must be presumed to be

aware of the regulation"). Here, the regulation of large capacity

weapons provides a process for resolving uncertainty about the scope of

the regulation--the application for a license. The hardship alleged by

the plaintiffs--being forced to dispose of possibly lawful weapons or

risking prosecution under the statute--dissolves in light of that

licensing option.

2. Fitness
The fitness component of ripeness addresses whether the factual

and legal dimensions of the challenge to the Act are developed enough

to permit adjudication of the plaintiffs' claim. The Act empowers an

agency of the Commonwealth--the Executive Office of Public Safety

("EOPS")--to promulgate regulations clarifying its meaning and to

publish a list of weapons proscribed by the statute. Mass. Gen. Laws

ch. 140, § 131 3/4. The statute charges the EOPS to publicize these

clarifications widely:

The secretary shall, not less than three times annually, publish
the roster in newspapers of general circulation throughout the
commonwealth, and shall send a copy thereof to all dealers
licensed in the commonwealth under the provisions of said section
122 of said chapter 140; and further, the licensing authority

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 shall furnish said roster to all cardholders and licensees upon
initial issuance and upon every renewal of the same.
Id.

The statute also provides for citizen input into the process of

promulgating and updating the roster: "The secretary may amend the

roster upon his own initiative or with the advice of [the Gun Control

Advisory Board]. A person may petition the secretary to place a weapon

on, or remove a weapon from, the roster, subject to the provisions of

this section." Id. The Gun Control Advisory board, appointed by the

Governor, has seven members, "one of whom shall be a member of the Gun

Owners Action League." Mass. Gen. Laws ch. 140, § 131 ½. Thus, one of

the members of the board must be a representative from the lead

associational plaintiff in this case, GOAL. Id..

Both the clarifying language and the roster assist law enforcement

officers and laymen in interpreting the statute. For example, the

plaintiffs complain that the term "'capable of accepting' does not

inform the owner whether she must actually possess the feeding device,

or whether the manufacture, somewhere in the world, of some feeding

device that her gun is capable of accepting" would suddenly render the

gun a large capacity weapon (and thus require its owner to obtain a

Class A license). The clarifying language issued with the roster

addresses this question:

"Capable of accepting" shall mean any firearm, rifle or shotgun
in which a large capacity feeding device is capable of being used

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 without alteration of the weapon; provided, however, that said
large capacity feeding device is fully or partially inserted into
the weapon or attached thereto, or is under the direct control of
a person who also has direct control of a weapon capable of
accepting said feeding device.

Executive Office of Public Safety, Large Capacity Weapon Roster

Effective February 15, 2002, available at

http://www.state.ma.us/chsb/download/frb/largecap_2002.pdf. Similar

administrative clarifications may well answer other questions raised by

the plaintiffs. Observing a similar clarification process on the

federal level, the Sixth Circuit in Magaw, 132 F.3d 272 (6th Cir.

1997), refused to review a statute (18 U.S.C. § 926) similar to the

Massachusetts law challenged by the plaintiffs, in part because the

plaintiffs there had not given the relevant rulemaking authority a

chance to clarify the statute:

[T]he Crime Control Act delegates rulemaking authority to the
Secretary of the Treasury. The Secretary, in turn, has delegated
that authority to the BATF, which has the authority to make rules
designating in greater specificity the requirements of the statute
. . . . We believe a federal court should not intervene and
determine whether a statute enacted by Congress is
unconstitutionally vague on its face before the agency with
rulemaking authority has had an opportunity to interpret the
statute.

Id. at 292. This reasoning applies to the Act as well. The process of

administrative clarification, begun even before the Act took effect,

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has continued during the pendency of this litigation.7 We see no basis

for precluding future good faith efforts by professionals in the

Executive Office of Public Safety to clarify the statute.

In summary, the opportunity for licensing minimizes the alleged

hardship, and the continuing administrative clarification of the Act

reduces uncertainty. Neither Count Four nor Count Six is ripe for

review.

B. Prohibitions on "Furnishing a Weapon" to a Minor (Count 10)

Count Ten of the plaintiffs' complaint (alleging that the

statutory ban on "furnishing" weapons to a minor is unconstitutionally

vague) is also unripe. Massachusetts law has banned the furnishing of

weapons to minors for many years. See, e.g., 1884 Mass. Acts 76.

Before the Act, the statute banned the furnishing of rifles or shotguns

to minors, and set the penalty for "furnishing" such weapons to minors

and aliens between $500 and $1,000 (with no provisions for

imprisonment). Mass. Gen. Laws ch. 140, § 130 (1997). The Act

updated this statutory language to reflect the new three-tier

classifications of weapons and increased the penalties for violation:

7 According to the statute, the "secretary may amend the roster
upon his own initiative or with the advice of [the Gun Control
Advisory] board. A person may petition the secretary to place a weapon
on, or remove a weapon from, the roster." Mass. Gen. Laws ch. 140, §
131 3/4. The secretary issued an updated version of the roster as
recently as February 15, 2002. See Executive Office of Public Safety,
Large Capacity Weapon Roster Effective February 15, 2002, available at
http://www.state.ma.us/chsb/download/frb/largecap_2002.pdf.

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 Whoever . . . sells or furnishes any alien or any person under
eighteen years of age a rifle, shotgun, machine gun or ammunition,
or whoever sells or furnishes to any person under 21 years of age
a firearm or large capacity rifle or shotgun or ammunition
therefor shall have his license to sell . . . revoked . . . and
shall be punished by a fine of not less than $1,000 nor more than
$ 10,000, or by imprisonment in a state prison for not more than
ten years or by imprisonment in a house of correction for not more
than two and one-half years, or by both such fine and
imprisonment.

Mass. Gen. Laws ch. 140, § 130. As it did before the Act, the statute

also provides several exceptions for parents and shooting instructors.8

In their challenge to Count Ten, the plaintiffs re-allege the

vagueness of the term "large capacity weapon." We have already

explained why this challenge is unripe for review. To the extent that

the plaintiffs' vagueness challenge in Count Ten depends on other

arguments, they spend less than one page of a fixty-six page brief

developing them. There they only allege that "[d]ue to the vagueness

of 'furnishes,' they must either risk prosecution or discontinue

teaching marksmanship and safety to the youngsters." They do not

8"Nothing in this section . . . shall be construed to prohibit a
parent or guardian from allowing his child or ward, who has not
attained age fifteen, the supervised use of a rifle or shotgun or
ammunition therefor . . . nor from furnishing such child or ward, who
has attained age fifteen, with a rifle or shotgun that is not a large
capacity weapon or ammunition; provided, however, that said child or
ward, being fifteen years of age or older, has been issued a valid
firearm identification card . . . . Nothing in this section shall be
construed to prohibit an instructor from furnishing rifles or shotguns
or ammunition therefor to pupils; provided, however, that said
instructor has the consent of a parent or guardian of a pupil under the
age of eighteen years." Mass. Gen. Laws ch. 140, § 130.

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explain why "furnishes" is vague, or suggest the different meanings it

might have. Their reply brief is also unhelpful on this issue. These

additional furnishing arguments on vagueness grounds are developed so

perfunctorily that we deem them waived. See United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are

deemed waived.").

The plaintiffs also argue that the furnishing provision violates

equal protection because it allows instructors, but not parents, to

furnish one under 21 years of age "with a large capacity rifle or

shotgun or ammunition therefor," and "no rational relation to any

legitimate purpose has been suggested for this discrimination against

parents and in favor of instructors." This argument ignores a basic

difference between parents and instructors: the latter are subject to

detailed training and licensing requirements. Mass. Gen. Laws ch. 140,

§ 131P. Admittedly, the statute is silent on whether the instructor

must supervise the minors after he or she has furnished them with

weapons. Nevertheless, the Commonwealth's classification

here--permitting instructors, but not parents, to furnish a large

capacity weapon to a minor--meets the rational basis test.

III. Freedom of Expression

The plaintiffs allege that one provision in the Act

unconstitutionally restricts their freedom of expression. According to

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the statute, gun clubs with Class A licenses "shall not permit shooting

at targets that depict human figures, human effigies, human silhouettes

or any human images thereof, except by public safety personnel

performing in line with their official duties." Mass. Gen. Laws ch.

140, § 131(a). The plaintiffs argue that the law "censors images

printed on targets . . . for the first time in world history." One

plaintiff, Outdoor Message, Inc., distributes a target with the image

of Adolph Hitler on its front, and an account of Hitler's restrictions

on firearm use on the back. Those who buy the target shoot at the

image of Hitler in order to express their opposition to tyranny and

restrictions on gun use, and other political messages.

First Amendment challenges to proscribed conduct usually require

a two-step inquiry; first, assessing whether the proscribed conduct is

sufficiently communicative to count as expression protected by the

First Amendment, and secondly, whether the challenged law is content-

neutral or content-based. However, a court may sometimes bracket the

initial analysis, assume arguendo that the conduct is expressive enough

to come within the ambit of First Amendment protection, and then

complete the second inquiry. For example, in the Supreme Court's

seminal treatment of the speech/conduct distinction, the Court decided

to "assum[e] for the sake of argument that 'the alleged communicative

element in O'Brien's conduct [was] sufficient to bring into play the

First Amendment.'" Bartnicki v. Vopper, 200 F.3d 109, 119

-27-
(3rd Cir. 1999) (quoting U.S. v. O'Brien, 391 U.S. 367, 376 (1968)

(upholding the defendant's criminal punishment for burning his draft

card)); see also AIDS Action Committee, Inc. v. Massachusetts Bay

Transp. Auth., 42 F.3d 1, 10 (1st Cir. 1994) (assuming " arguendo that

the MBTA has correctly characterized the AAC ads as sexually explicit

and/or patently offensive, that it has excluded them pursuant to its

written Policy, and that it may constitutionally proscribe sexually

explicit and/or patently offensive speech in its cars" in order to

"decide whether the content discrimination inherent in the MBTA's

decision to run the 'Fatal Instinct' ads, while not running the AAC

ads, is permissible").

No court has recognized target shooting as a constitutionally

protected form of expression. The plaintiffs argue that they are

engaged in "expressive conduct," like the flag-burning protected by the

Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989). Such conduct

is entitled to First Amendment protection when it evinces "[a]n intent

to convey a particularized message . . . [and] the likelihood [is]

great that the message would be understood by those who viewed it."

Id. at 404 (1989) (internal quotation marks omitted). In response to

this argument, we follow the lead of O'Brien and AIDS Action Committee,

assuming for the purpose of the content-neutral/content-based analysis

that the target shooting at human figures described by the defendants

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is expressive conduct entitled to some degree of First Amendment

protection.

"The principal inquiry in determining content neutrality . . . is

whether the government has adopted a regulation of speech because of

disagreement with the message it conveys." Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989). Here, the defendants assert that the Act's

purpose was to stop target practice that arguably increases the

practicer's capacity to shoot human beings, not to prevent the

potentially expressive conduct engaged in by some of the plaintiffs.

The plaintiffs argue that the government's expressed interest in

preventing gun fatalities is pretextual because the Act "does not ban

shooting at all targets, but only at targets printed with disfavored

images." The disfavored images here are images of humans, or targets

shaped like humans. There is an obvious connection between the

Commonwealth's interest in preventing gun fatalities and its decision

to restrict the shooting practices of certain gun clubs. A person who

has practiced shooting at a human-shaped target will likely be more

proficient at shooting humans than a person who has had to practice at

a circular target. This rationale is a believable, reasonable,

content-neutral justification for the provision.

The plaintiffs complain that they are specially burdened because

they are not allowed to shoot at pictures of tyrants. However,

supporters of tyrants are affected in the same way by the statute: they

-29-
cannot shoot at images of advocates of freedom. The restriction is

content-neutral, neither advancing nor impeding any particular

viewpoints, but simply regulating a particular mode of potentially

expressive conduct (target shooting) at a particular place (Class A-

licensed gun clubs). Of course, the restriction is more likely to

burden expressive conduct by those who shoot at targets because such

individuals are far more likely to shoot at effigies or images on

targets as a form of expression. Nevertheless, this law, "designed to

serve purposes unrelated to the content of protected speech [should be]

deemed content-neutral even if, incidentally, it has an adverse effect

on certain messages while leaving others untouched." McGuire v.

Reilly, 260 F.3d 36, 43 (1st Cir. 2001). As in O'Brien, "'the

governmental interest is unrelated to the suppression of free

expression.'" Johnson, 491 U.S. at 406 (quoting O'Brien, 391 U.S. at

377.). Therefore, the restriction here is content-neutral.

Since this restriction on the time, place, and manner of

expressive conduct is content-neutral, it "trigger[s] an intermediate

type of scrutiny . . . [and] will be upheld as long as [it is]

'narrowly tailored to serve a significant governmental interest, and

allow[s] for reasonable alternative channels of communication.'"

Knights of Columbus v. Town of Lexington, 272 F.3d 25, 31 (1st Cir.

2001) (quoting Globe Newspaper Co. v. Beacon Hill Architectural Comm'n,

100 F.3d 175, 186 (1st Cir.1996)); see also Ward, 491 U.S. 781, 791

-30-
(1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293

(1984). The restriction does serve a "significant governmental

interest." Knights of Columbus, 272 F.3d at 31. It aims to prevent

those who do not have a license for using large capacity weapons from

refining their skills with such weapons by shooting at targets

depicting humans. The state has a particular interest in preventing

those unlicensed to use large capacity weapons from becoming proficient

at shooting humans with such weapons.9

The restriction on shooting at targets depicting human figures is

also narrowly tailored. As the defendants observe in their brief, the

restriction "applies only in Class A licensed clubs because those are

the only places where a person who does not have a license for large

capacity weapons may shoot such weapons."

The restriction challenged here "allows for reasonable alternative

channels of communication." Whatever messages the appellants seek to

9 The state's interest in regulating Class A licensed clubs also
answers the plaintiffs' equal protection challenge to this restriction
on human target shooting. The plaintiffs argue that "the provision .
. . denies the equal protection of the laws, in violation of the
Fourteenth Amendment, by treating persons who are in identical
circumstances dissimilarly. Everyone else in the Commonwealth is
entitled to shoot at such images except those shooting at a club with
a Class A license." However, the Equal Protection Clause of the
Fourteenth Amendment "embodies a general rule that States must treat
like cases alike but may treat unlike cases accordingly." Vacco v.
Quill, 521 U.S. 793, 799 (1997) (citations omitted). Given that only
Class A clubs can permit persons generally unauthorized to use large
capacity weapons to use such weapons on their premises, it is
reasonable that the state's restriction on shooting at human-shaped
targets only applies to them.

-31-
express by shooting at human images on targets, those messages may be

spread via writing, the Internet, word of mouth, or other communication

technologies. Similarly, if the destruction of an image of Hitler is

the "communication" at issue, they have reasonable alternative channels

for defacing that image, by hand or other physical means. If the

appellants' message can be conveyed only by shooting at such images,

the statute still "leave[s] open ample alternative channels" for

disseminating it: they may shoot at such images at any place where they

can lawfully shoot at targets, other than gun clubs with a Class A

license.

In summary, the Act's provisions on target shooting comply with

all constitutional requirements for content-neutral restrictions on

speech, and hence pass intermediate scrutiny.

IV. Equal Protection Challenge to Class A Licensing Provisions

Like individuals, certain clubs and facilities may possess, store,

and use large capacity weapons if they successfully apply for a Class

A license. Mass. Gen. Laws ch. 140, § 131(a).10 A club or facility

10 The statute reads as follows:

The colonel of state police may, after an investigation, grant a
Class A license to a club or facility with an on-site shooting
range or gallery, which club is incorporated under the laws of the
commonwealth for the possession, storage and use of large capacity
weapons, ammunition therefor and large capacity feeding devices
for use with such weapons on the premises of such club; provided,
however, that not less than one shareholder of such club shall be
qualified and suitable to be issued such license; and provided
further, that such large capacity weapons and ammunition feeding

-32-
with a Class A license may permit its members to use its large capacity

weapons, even if those members do not individually have Class A

licenses, if they have a Class B license or an FID card. Id. A Class

A licensed club or facility may also permit non-members to use its

large capacity weapons (as long as the non-member uses the large

capacity weapon under the supervision of a properly licensed club

member or a certified firearms instructor). Id.

Clubs and facilities which want to possess and store large

capacity weapons must apply to the Colonel of the State Police in order

to obtain a Class A license. Id. According to the statute, "[t]he

colonel of state police may, after an investigation, grant a Class A

license to a club or facility with an on-site shooting range or gallery

. . . provided, however, that not less than one shareholder of such

club shall be qualified and suitable to be issued such license." Id.

The term "shareholder" here denotes three distinct requirements for

devices may be used under such Class A club license only by such
members that possess a valid firearm identification card issued
under section 129B or a valid Class A or Class B license to carry
firearms, or by such other persons that the club permits while
under the direct supervision of a certified firearms safety
instructor or club member who, in the case of a large capacity
firearm, possesses a valid Class A license to carry firearms or,
in the case of a large capacity rifle or shotgun, possesses a
valid Class A or Class B license to carry firearms. Such club
shall not permit shooting at targets that depict human figures,
human effigies, human silhouettes or any human images thereof,
except by public safety personnel performing in line with their
official duties.

Mass. Gen. Laws ch. 140, § 131(a).

-33-
clubs or facilities which seek to obtain a Class A license. First,

they must be incorporated. Second, they must be corporations with at

least one shareholder. Third, at least one shareholder in such

corporations must hold individually a Class A license.

According to the appellants, these requirements violate equal

protection standards by irrationally discriminating against

unincorporated gun clubs and facilities, and those incorporated gun

clubs and facilities without any shareholders. Noting that equal

protection requires the government to afford similar treatment to

similarly situated persons, the plaintiffs observe that "[a]lmost all

gun clubs are membership corporations without shareholders," and that

several named plaintiffs belong to gun clubs which "meet every

requirement of the Act for the license except that they do not have

shareholders." They also argue that, within clubs with at least one

shareholder, a person other than a shareholder should be eligible to

fulfill the requirement that at least one person within the club "shall

be qualified and suitable to be issued a Class A License."

A. Applicable Legal Standards

The challenged classification is "subject only to . . . rational

basis review . . . . [I]n this subset of concerns, the Equal Protection

Clause requires 'that cities, states and the Federal Government must

exercise their powers so as not to discriminate between their

inhabitants except upon some reasonable differentiation fairly related

-34-
to the object of regulation.'" Mills v. Maine, 118 F.3d 37, 46-47 (1st

Cir. 1997) (quoting Ry. Express Agency, Inc. v. New York, 336 U.S. 106,

112 (1949) (Jackson, J., concurring)). A statute passes the rational

basis test "'if any reasonably conceivable set of facts could establish

a rational relationship between [it] and the . . . government's

legitimate ends.'" Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 978

(1st Cir. 1989) (quoting Tenoco Oil Co., Inc. v. Dep't of Consumer

Affairs, 876 F.2d 1013, 1021 (1st Cir. 1989)). We need not inquire

into the precise rationale of the legislature in enacting the statute.

Indeed, "because we never require a legislature to articulate its

reasons for enacting a statute, it is entirely irrelevant for

constitutional purposes whether the conceived reason for the challenged

distinction actually motivated the legislature." FCC v. Beach

Communications, Inc., 508 U.S. 307, 315 (1993).

Rational basis review does not permit courts to pass judgment on

the effectiveness of the legislature's proposed classifications.

"These restraints on judicial review have added force [when the

legislature is] . . . defining the class of persons subject to a

regulatory requirement." Id. at 316 (1993). This process "'inevitably

requires that some persons who have an almost equally strong claim to

favored treatment be placed on different sides of the line, and the

fact [that] the line might have been drawn differently at some points

is a matter for legislative, rather than judicial, consideration.'"

-35-
Id. at 315-316 (quoting United States Railroad Retirement Bd. v. Fritz,

449 U.S. 166, 179 (1980)). Legislators may enact complex compromises

when addressing novel social and economic issues, and "it is for the

legislature, not the courts, to balance the advantages and

disadvantages of the new requirement." Williamson v. Lee Optical Co.,

348 U.S. 483, 487 (1955). Cognizant of these strictures on rational

basis review, we address each of the plaintiffs' equal protection

challenges to this portion of the statute.

B. The Incorporation Requirement

Incorporated entities are subject to different liability standards

and types of regulation than unincorporated entities. As the

defendants argue in their brief, "the Legislature could . . . have

concluded that the differences in scope of liability might make it

easier for corporations to obtain insurance against the risk of injury

on premises." Given that the Secretary of State and the Attorney

General regulate corporations, the legislature may also have concluded

that an incorporated gun club or shooting facility is more likely to

prevent the misuse of large capacity weapons than an unincorporated

association. Many federal and state laws legitimately treat

corporations differently than non-corporations. See, e.g., Town of

Brookline v. Gorsuch, 667 F.2d 215, 221 n.4 (1st Cir. 1981) (focusing

on the federal tax code); Semler v. Oregon State Bd. of Dental Exam'rs,

294 U.S. 608, 611 (1935) (denying corporations the right to practice

-36-
dentistry). The different treatment here easily meets the rational

basis test.

C. Requirement that Class A Licensed Corporations Have at Least one
Shareholder

Reflecting its preference for limiting Class A club or facility

licenses to entities that are subject to more formal legal

requirements, the legislature may have also concluded that extant state

law regulated the activities of stock corporations and their

shareholders more comprehensively than it regulated non-stock

corporations and their members. "Every state['s] statute[s include]

detailed provisions on the legal relations of shareholders toward each

other and the corporation." James D. Cox, Thomas Lee Hazen, & F. Hodge

O'Neal, Corporations § 1.5, at 1.15 (1999 Supp.). We find nothing

irrational in the legislative judgment that such detailed provisions

increase the likelihood that these stock corporations with Class A

licenses will be more responsible in their use of large capacity

weapons.

D. Requirement that a Shareholder "shall be qualified and suitable
to be issued a Class A License"

The legislature may have concluded that shareholders have a

greater stake in the affairs of a corporation than non-shareholders.

Since the legislature was willing to permit non-members of Class A

licensed clubs to use large capacity weapons on the premises of a club

under the supervision of a club member who holds a Class A license,

-37-
irrespective of whether those non-members hold a license to use a large

capacity weapon, the legislature may have further concluded that its

concern for the responsible use of large capacity weapons at a Class A

licensed gun club would be advanced if at least one of the potentially

supervising club members was also a shareholder in the corporation.

Although plaintiffs express considerable skepticism about the

rationality of this shareholder requirement, we cannot say that the

legislative requirement is irrational. In the realm of social and

economic regulation, a classification passes the rational basis test

"'if any reasonably conceivable set of facts could establish a rational

relationship between [it] and the . . . government's legitimate ends.'"

Montalvo-Huertas, 885 F.2d at 978 (quoting Tenoco Oil Co., Inc. v.

Dep't of Consumer Affairs, 876 F.2d 1013, 1021 (1st Cir. 1989)). We

find such a rational relationship between the shareholder requirement

and the Commonwealth's evident purpose to maximize the responsible use

of large capacity weapons on the premises of gun clubs with Class A

licenses.

V. Freedom of Association Challenge to Class A Licensing Provisions

Relying on the Supreme Court's recent decision in Boy Scouts of

America v. Dale, 530 U.S. 640 (2000), the plaintiffs also allege that

the restriction of Class A licenses to incorporated gun clubs with at

least one shareholder forces them to associate with members of such

clubs, in violation of their associational rights under the First

-38-
Amendment. The plaintiffs insist that "freedom of

association . . . plainly presupposes a freedom not to associate."

Id. at 648 (internal quotation marks omitted).

Dale is inapplicable here. In that case, the state of New Jersey

required the Boy Scouts to accept gay Scout leaders, which "would, at

the very least, force the organization to send a message, both to the

youth members and the world, that the Boy Scouts accepts homosexual

conduct as a legitimate form of behavior." Id. at 653. In this case

the Commonwealth is only imposing a procedural, formal requirement on

the structure of an organization. The statute neither requires nor

even suggests any forced association of gun owners with anyone of

differing views.

Furthermore, as the Commonwealth points out, requiring a club to

obtain a license in order to enjoy a narrow range of privileges

relating to large capacity weapons does not "implicate any

constitutionally protected right of association because it does not

involve . . . protected associative activity." Like an ordinance

restricting attendance at certain dance halls to persons of a certain

age, this regulation simply does not implicate the First Amendment.

See City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989) (holding that

the dancing regulated by the municipal ordinance "simply [does] not

involve the sort of expressive association that the First Amendment has

been held to protect"). The plaintiffs are not being forced to join

-39-
any association that espouses a political viewpoint, and are not

required to permit persons whose viewpoints they find objectionable to

join their own association. Therefore, their First Amendment challenge

to the Class A licensing provisions is meritless.

VI. Conclusion

Like many citizens trying to comply with a complex regulatory

scheme, the plaintiffs here describe difficulties in understanding the

Act. Without minimizing their concerns, we conclude that this

preenforcement challenge to the Act is not ripe for review for all of

the reasons stated. Although justiciable, their varied First Amendment

and Equal Protection challenges are meritless. We therefore affirm the

decision of the district court.

So ordered. Each side shall bear its own costs.

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