Stephen Kolbe v. Lawrence Hogan, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1945

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,

v.

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.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:13-cv-02841-CCB)

Argued: March 25, 2015 Decided: February 4, 2016

Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.

2
Affirmed in part, vacated in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion for the court 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.

ARGUED: 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. ON BRIEF: 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

3
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

4
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.

5
TRAXLER, Chief Judge, wrote the opinion for the court as to
Parts I, II, and III, in which Judge Agee joined.

In April 2013, Maryland passed the Firearm Safety Act

(“FSA”), which, among other things, bans law-abiding citizens,

with the exception of retired law enforcement officers, from

possessing the vast majority of semi-automatic rifles commonly

kept by several million American citizens for defending their

families and homes and other lawful purposes. Plaintiffs raise

a number of challenges to the FSA, contending that the “assault

weapons” ban trenches upon the core Second Amendment right to

keep firearms in defense of hearth and home, that the FSA’s ban

of certain larger-capacity detachable magazines (“LCMs”)

likewise violates the Second Amendment, that the exception to

the ban for retired officers violates the Equal Protection

Clause, and that the FSA is void for vagueness to the extent

that it prohibits possession of “copies” of the specifically

identified semi-automatic rifles banned by the FSA. The

district court rejected Plaintiffs’ Second Amendment challenges,

concluding that the “assault weapons” and larger-capacity

magazine bans passed constitutional muster under intermediate

scrutiny review. The district court also denied Plaintiffs’

equal protection and vagueness claims.

In our view, Maryland law implicates the core protection of

the Second Amendment—“the right of law-abiding responsible

6
citizens to use arms in defense of hearth and home,” District of

Columbia v. Heller, 554 U.S. 570, 635 (2008), and we are

compelled by Heller and McDonald v. City of Chicago, 561 U.S.

742 (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.

I. Background

A.

The FSA substantially expanded Maryland’s gun control laws.

Prior to passage of the FSA, Maryland law permitted citizens in

good standing to possess semi-automatic 1 rifles after passing an

1
To fire a semi-automatic rifle, the shooter must pull the
trigger each time he wishes to discharge a round of ammunition.
In other words, a semi-automatic rifle fires “only one round
with a single trigger pull. . . . To fire a subsequent round,
the trigger must be released and pulled again.” J.A. 2254. By
(Continued)
7
extensive background check. 2 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). 3 The FSA

contrast, an automatic rifle, like an M-16, will continuously
discharge rounds “for as long as the trigger [is depressed or]
until the magazine is empty.” Id. at 2254-55. No party is
challenging the ban on automatic weapons.

2 Pre-ban Maryland law required a prospective purchaser of
what is now defined as an “assault weapon” to provide
information such as his “name, address, Social Security number,
place and date of birth, height, weight, race, eye and hair
color, signature, driver’s or photographic identification, [and]
occupation.” 2003 Maryland Laws Ch. 5, § 2. This information
is still required under current Maryland law for individuals
wishing to purchase regulated firearms. See Md. Code, Pub.
Safety § 5-118(b)(1).

3 The term “assault pistol” is defined by reference to a
list of 15 semi-automatic pistols, specified by make and model.
See Md. Code, Crim. Law § 4-301(c). Handguns are categorized
(Continued)
8
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). 4 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

separately by the FSA, see Md. Code, Pub. Safety Code § 5-
101(n)(1) (defining handgun as a “firearm with a barrel less
than 16 inches in length”), although there certainly are semi-
automatic handguns not listed as “assault pistols” under the
FSA.

“Copycat weapons” are semi-automatic rifles and shotguns
not specifically listed under section 5-102(r)(2) but similar in
terms of style and features to the listed weapons. See Md.
Code, Crim. Law § 4-301(e)(2) (“‘Copycat weapon’ does not
include an assault long gun or an assault pistol.”).

4 Maryland’s law does expressly permit its citizens to
possess a couple of semi-automatic rifles. For example, it
specifically exempts the WWII-era M1 Garand, see Md. Code, Pub.
Safety § 5-101(r)(2)(xxxvii), and the AR-15 “H-BAR”, see § 5-
101(r)(2)(xv), a heavy barrel iteration of the AR-15, neither of
which are popular home defense firearms. Citizens might also
legally possess other semi-automatic rifles that are not listed
under § 5-101(r)(2), presuming the citizen has sufficient
expertise to determine that the firearm does not constitute a
“copy” of one of the banned rifles or an “imitation” of the AR-
15 pattern semi-automatic rifle. One semi-automatic rifle that
apparently passes muster is the AR-10, see J.A. 210, a firearm
that is ill-suited to home defense for some smaller individuals
because of its heavy recoil which makes it difficult “to
reobtain the target and to quickly and accurately fire
subsequent shots if needed.” J.A. 2267.

9
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). 5 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

5 The statute defines a “detachable magazine” as “an
ammunition feeding device that can be removed readily from a
firearm without requiring disassembly of the firearm action or
without the use of a tool, including a bullet or cartridge.”
Md. Code, Crim. Law § 4-301(f).

10
contains a grandfather clause pursuant to which “[a] person who

lawfully possessed” or “completed an application to purchase” a

prohibited semi-automatic rifle “before October 1, 2013” may

lawfully continue to “possess and transport” it. See Md. Code,

Crim. Law § 4-303(b)(3)(i). And the FSA’s prohibitions do not

apply to several classes of individuals, such as active law

enforcement officers and licensed firearms dealers under certain

circumstances. See Md. Code, Crim. Law §§ 4-302(1), (3).

Another exception allows retired state or local law enforcement

agents to possess banned weapons and LCMs if the weapon or

magazine was “sold or transferred to the [retired agent] by the

law enforcement agency on retirement,” or the retired agent

“purchased or obtained” the weapon “for official use with the

law enforcement agency before retirement.” See Md. Code, Crim.

Law §§ 4-302(7)(i), (ii).

B.

Plaintiff Stephen Kolbe is a life-long resident of Maryland

who resides in Towson and owns a small business in Baltimore

County. Kolbe owns “one full-size semiautomatic handgun” that

is equipped with a standard detachable magazine that holds more

than 10 rounds. J.A. 1851. Various personal experiences,

including an incident in which an employee’s ex-boyfriend

threatened to come kill her at work but police did not respond

for thirty minutes, and Kolbe’s family’s close proximity to “a

11
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,

12
hunting and gun-owners’ rights organizations joined as

plaintiffs on their own behalf and on behalf of their members. 6

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.

6These include Associated Gun Clubs of Baltimore, Inc.;
Maryland Shall Issue, Inc.; Maryland State Rifle and Pistol
Association, Inc.; National Shooting Sports Foundation, Inc.;
and the Maryland Licensed Firearms Dealers Association, Inc.

13
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.

Plaintiffs appeal.

II. Standard of Review

As we noted above, the district court decided this case on

cross-motions for summary judgment. “When faced with 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, 337-38 (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.

14
 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 (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

15
challenged regulation burdens conduct that was within the scope

of the Second Amendment as historically understood, then we move

to the second step of applying an appropriate form of means-end

scrutiny.” Id.

A. Does the FSA’s Ban Implicate Second Amendment Rights?

We first address the threshold question of whether the bans

imposed by the FSA burden conduct that falls within the scope of

the Second Amendment. As is now well understood, Heller

affirmed that the Second Amendment protects a preexisting

“individual right to possess and carry weapons in case of

confrontation.” 554 U.S. at 592. “[D]eeply rooted in this

Nation’s history and tradition,” McDonald, 561 U.S. at 768

(internal quotation marks omitted), this right is among the

“fundamental rights necessary to our system of ordered liberty,”

id. at 778. The right to keep and bear arms historically has

been understood to encompass “self-defense and hunting,” Heller,

554 U.S. at 599, but Heller made clear “the central component of

the Second Amendment right” is “individual self-defense,”

McDonald, 561 U.S. at 767. Moreover, the right to keep arms is

at its greatest strength in “the home, where the need for

defense of self, family, and property is most acute.” Heller,

554 U.S. at 628.

The FSA makes it unlawful for any citizen “to possess, . .

. purchase, or receive” an “assault weapon.” Md. Code, Crim.

16
Law § 4-303(a). 7 The statute prohibits all forms of possession

of any weapon listed in section 5-101(r)(2)—a law-abiding

citizen cannot keep any of these weapons in the home for any

reason, including the defense of self and family. Accordingly,

the conduct being regulated by the FSA includes an individual’s

possession of a firearm in the home for self-defense.

The Supreme Court has already performed an historical

analysis of our traditional understanding of a citizen’s right

to keep a weapon at home for self-defense, concluding that “the

right of law-abiding, responsible citizens to use arms in

defense of hearth and home” lies at the core of the Second

Amendment. Heller, 554 U.S. at 635. Any prohibition or

restriction imposed by the government on the exercise of this

right in the home clearly implicates conduct protected by the

Second Amendment.

The right to keep and bear arms, as a matter of history and

tradition, “is not unlimited,” of course, as even law-abiding

citizens do not have “a right to keep and carry any weapon

whatsoever in any manner whatsoever and for whatever purpose.”

Id. at 626. Of particular relevance to this appeal is the

historical limitation upon which arms a citizen had the right to

bear, as the Second Amendment protects only “the sorts of

7 The same statutory prohibitions (except as to possession)
apply to LCMs. See Md. Code, Crim. Law § 4-305(b).

17
weapons . . . in common use at the time.” Id. at 627 (emphasis

added) (internal quotation marks omitted). “[The Second

Amendment] does not extend to all types of weapons, only to

those typically possessed by law-abiding citizens for lawful

purposes.” Marzzarella, 614 F.3d at 90. This limitation

reflects “the historical tradition of prohibiting the carrying

of dangerous and unusual weapons.” Id. (internal quotation

marks omitted; emphasis added).

Moreover, when the regulated conduct relates to a

particular class of weapons, we must address an additional issue

before we can say with assurance that the Second Amendment

applies and turn to the question of the appropriate level of

scrutiny. That is, we must determine whether the particular

class of weapons prohibited or regulated by the statute are

themselves protected by the Second Amendment. See Friedman v.

City of Highland Park, 784 F.3d 406, 414 (7th Cir. 2015)

(Manion, J., dissenting) (“[W]here, as here, the activity is

directly tied to specific classes of weapons, we are faced with

an additional threshold matter: whether the classes of weapons

regulated are commonly used by law-abiding citizens. If the

weapons in question (assault rifles and high-capacity magazines)

are not commonly used by law-abiding citizens, then our inquiry

ends as there is no Second Amendment protection . . . .”).

18
 In United States v. Miller, 307 U.S. 174 (1939), the Court

rejected a Second Amendment challenge to the defendants’

convictions for unlawful possession of a short-barreled shotgun

because there was no “evidence tending to show” that such a

weapon was related “to the preservation or efficiency of a well

regulated militia” or was “part of the ordinary military

equipment,” id. at 178. Significantly, however, Miller noted

that “ordinarily when called for [militia] service [able-bodied]

men were expected to appear bearing arms supplied by themselves

and of the kind in common use at the time.” Id. at 179; see

Heller, 554 U.S. at 624-25 (“The traditional militia was formed

from a pool of men bringing arms in common use at the time for

lawful purposes like self-defense. In the colonial and

revolutionary war era, small-arms weapons used by militiamen and

weapons used in defense of person and home were one and the

same.” (internal quotation marks and alteration omitted)).

Reading Miller’s passages together, the Heller Court clarified

Miller’s holding and explained that “the Second Amendment does

not protect those weapons not typically possessed by law-abiding

citizens for lawful purposes, such as short-barreled shotguns.”

Heller, 554 U.S. at 625 (emphasis added). Accordingly, the

Second Amendment extends only to those weapons “typically

possessed by law-abiding citizens for lawful purposes,” id.; see

Marzzarella, 614 F.3d at 90 (“[The Second Amendment extends] . .

19
. only to those [weapons] typically possessed by law-abiding

citizens for lawful purposes.”); Heller II, 670 F.3d at 1260

(“[W]e must also ask whether the prohibited weapons are

typically possessed by law-abiding citizens for lawful purposes;

if not, then they are not the sorts of Arms protected by the

Second Amendment.” (internal citation and quotation marks

omitted)); United States v. Fincher, 538 F.3d 868, 873 (8th Cir.

2008) (explaining there is no protection for “weapons not

typically possessed by law-abiding citizens for lawful purposes”

(internal quotation marks omitted)). Thus, we must determine

whether semi-automatic rifles and LCMs are commonly possessed by

law-abiding citizens for lawful purposes. See Fyock, 779 F.3d

at 998; Heller II, 670 F.3d at 1260-61.

Commonly Possessed

Like a number of courts that have previously considered

this question, we have little difficulty in concluding that the

banned semi-automatic rifles are in common use by law-abiding

citizens. See, e.g., Heller II, 670 F.3d at 1261 (“We think it

clear enough in the record that semi-automatic rifles and

magazines holding more than ten rounds are indeed in ‘common

use,’ as the plaintiffs contend. Approximately 1.6 million AR–

15s alone have been manufactured since 1986, and in 2007 this

one popular model accounted for 5.5 percent of all firearms, and

14.4 percent of all rifles, produced in the U.S. for the

20
domestic market.”); Colorado Outfitters Ass’n v. Hickenlooper,

24 F. Supp. 3d 1050, 1068 (D. Colo. 2014) (concluding that

statute “affects the use of firearms that are both widespread

and commonly used for self-defense,” in view of the fact that

“lawfully owned semi-automatic firearms using a magazine with

the capacity of greater than 15 rounds number in the tens of

millions”); Shew v. Malloy, 994 F. Supp. 2d 234, 246 (D. Conn.

2014) (concluding that semi-automatic rifles such as the AR-15

as well as magazines with a capacity greater than 10 rounds “are

‘in common use’ within the meaning of Heller and, presumably,

used for lawful purposes”). We make the assessment based on the

present-day use of these firearms nationwide. See, e.g., Heller

II, 670 F.3d at 1261 (looking to present-day use to assess

common use); United States v. Tagg, 572 F.3d 1320, 1326 (11th

Cir. 2009) (same); United States v. Fincher, 538 F.3d 868, 874

(8th Cir. 2008) (same)

We think it is beyond dispute from the record before us,

which contains much of the same evidence cited in the

aforementioned decisions, that law-abiding citizens commonly

possess semi-automatic rifles such as the AR-15. Between 1990

and 2012, more than 8 million AR- and AK-platform semi-automatic

rifles alone were manufactured in or imported into the United

States. J.A. 1877. In 2012, semi-automatic sporting rifles

accounted for twenty percent of all retail firearms sales. J.A.

21
1880. For perspective, we note that in 2012, the number of AR-

and AK-style weapons manufactured and imported into the United

States was more than double the number of Ford F-150 trucks

sold, the most commonly sold vehicle in the United States. J.A.

1878.

Likewise, the record in this case shows unequivocally that

LCMs are commonly kept by American citizens, as there are more

than 75 million such magazines in circulation in the United

States. In fact, these magazines are so common that they are

standard. “[O]n a nationwide basis most pistols are

manufactured with magazines holding ten to 17 rounds.” J.A.

2122. Even more than 20 years ago, “fully 18 percent of all

firearms owned by civilians . . . were equipped with magazines

holding more than ten rounds.” Heller II, 670 F.3d at 1261.

Virtually every federal court to have addressed this question

has concluded that “magazines having a capacity to accept more

than ten rounds are in common use.” Fyock v. City of Sunnyvale,

25 F. Supp. 3d 1267, 1275 (N.D. Cal. 2014) (noting such

magazines comprise “approximately 47 percent of all magazines

owned” and number “in the tens-of-millions, even under the most

conservative estimates” (internal quotation marks omitted),

aff’d, 779 F.3d 991, 998 (9th Cir. 2015) (“[W]e cannot say that

the district court abused its discretion by inferring from the

evidence of record that, at a minimum, magazines are in common

22
use.”). “There may well be some capacity above which magazines

are not in common use but, if so, the record is devoid of

evidence as to what that capacity is; in any event, that

capacity surely is not ten.” Heller II, 670 F.3d at 1261; see

also Shew, 994 F. Supp. 2d at 245-46; New York State Rifle &

Pistol Ass’n, Inc. v. Cuomo, 990 F. Supp. 2d 349, 365 (W.D.N.Y.

2013).

In addition, we reject the State’s argument that the Second

Amendment does not apply to detachable magazines because

magazines are not firearms—that is, detachable magazines do not

constitute “bearable” arms that are expressly protected by the

Second Amendment. See U.S. Const. amend. II. By Maryland’s

logic, the government can circumvent Heller, which established

that the State cannot ban handguns kept in the home for self-

defense, simply by prohibiting possession of individual

components of a handgun, such as the firing pin. But of course,

without the ability to actually fire a gun, citizens cannot

effectively exercise the right to bear arms. See Jackson v.

City of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (“The

Second Amendment protects ‘arms,’ ‘weapons,’ and ‘firearms’; it

does not explicitly protect ammunition. Nevertheless, without

bullets, the right to bear arms would be meaningless.”). In our

view, “the right to possess firearms for protection implies a

corresponding right” to possess component parts necessary to

23
make the firearms operable. Id. (internal quotation marks

omitted); see Ezell, 651 F.3d at 704 (“The right to possess

firearms for protection implies a corresponding right to . . .

maintain proficiency in their use; the core right wouldn’t mean

much without the training and practice that make it

effective.”).

This reasoning applies to the magazines in question. To

the extent that firearms equipped with detachable magazines are

commonly possessed by law-abiding citizens for lawful purposes,

there must also be an ancillary right to possess the magazines

necessary to render those firearms operable. To the extent the

State can regulate these magazines, it is not because the

magazines are not bearable “arms” within the meaning of the

Second Amendment.

Our conclusion that these magazines constitute “arms” also

finds strong historical support. Heller looked to early

definitions of “arms” to determine what weapons implicated the

Second Amendment, and those definitions were broad, including

“weapons of offence, or armour of defence,” or anything “that a

man . . . takes into his hands, or useth in wrath to cast at or

strike another.” Heller, 554 U.S. at 581. Other dictionaries

of the time say the same. See, e.g., Nathan Bailey, An

Universal Etymological English Dictionary 47 (1756) (defining

“arm” as “to furnish with armour of defense, or weapons of

24
offence”). Obviously, magazines and the rounds they contain are

used to strike at another and inflict damage. Early American

provisions protecting the right to “arms” were also crafted

partly in response to British measures that, while not taking

away guns entirely, drastically impaired their utility --

suggesting “arms” should be read to protect all those items

necessary to use the weapons effectively. See Saul Cornell, The

Early American Origins of the Modern Gun Control Debate: The

Right to Bear Arms, Firearms Regulation, and the Lessons of

History, 17 Stan. L. & Pol’y Rev. 571, 577 (2006) (describing

British efforts to steal colonial Williamsburg’s store of

gunpowder, thereby rendering the firearms of citizens useless).

In short, magazines and other forms of ammunition have long been

recognized as arms.

Lawful Purposes

Plaintiffs Kolbe and Turner both seek to acquire and keep

semi-automatic rifles, equipped with LCMs, in their homes

primarily for self-defense. And, they proffered evidence

suggesting that they are not alone in this regard. For example,

Plaintiffs’ expert James Curcuruto presented survey evidence

showing that self-defense was a primary reason for the purchase

of weapons banned under the FSA, and a 1989 Report from the

Bureau of Alcohol, Tobacco, and Firearms indicated that self-

defense was a suitable purpose for semi-automatic rifles. The

25
State’s expert Daniel Webster even agreed that it is reasonable

to assume that a purpose for keeping one of the prohibited

weapons is self-defense in the home.

The State argues that even if ownership of the prohibited

weapons and magazines is common, nothing in the record reflects

that these weapons are commonly used for self-defense. More

specifically, the State’s position is premised on Plaintiffs’

lack of evidence that the banned semi-automatic rifles have ever

actually been used in self-defense in Maryland, as opposed to

being possessed for self-defense.

The State’s position flows from a hyper-technical, out-of-

context parsing of the Supreme Court’s statement in Heller “that

the sorts of weapons protected were those in common use at the

time.” Heller, 554 U.S. at 627 (emphasis added; internal

quotation marks omitted). The State misreads Heller, as Second

Amendment rights do not depend on how often the semi-automatic

rifles or regulated magazines are actually used to repel an

intruder. The proper standard under Heller is whether the

prohibited weapons and magazines are “typically possessed by

law-abiding citizens for lawful purposes” as a matter of history

and tradition, id. at 625 (emphasis added), not whether the

magazines are often actually employed in self-defense incidents.

Actual use in self-defense is a poor measure of whether a

particular firearm is “typically possessed by law-abiding

26
citizens” for self-defense, as it is unlikely most people will

ever need to actually discharge a firearm in self-defense. See

Fyock, 25 F. Supp. 3d at 1276 (“The fact that few people will

require a particular firearm to effectively defend themselves

should be celebrated and not seen as a reason to except [that

firearm] from Second Amendment protection. Evidence that such

magazines are typically possessed by law-abiding citizens for

lawful purposes is enough.”).

More importantly, it is the government’s burden to

establish that a particular weapon or activity falls outside the

scope of the Second Amendment right. See Ezell, 651 F.3d at

702-03 (“[I]f the government can establish that a challenged

firearms law regulates activity falling outside the scope of the

Second Amendment right as it was understood at the relevant

historical moment—1791 or 1868—then the analysis can stop

there.”). So far as we can tell, nothing in the record suggests

any such tradition with respect to semi-automatic rifles or

LCMs. In fact, the Supreme Court, in a pre-Heller decision,

hinted at the opposite, stating that “certain categories of

guns,” such as “machineguns, sawed-off shotguns, and artillery

pieces,” have a “quasi-suspect character,” but that “guns

falling outside those categories traditionally have been widely

accepted as lawful possessions.” Staples v. United States, 511

U.S. 600, 611-12 (1994). Heller reiterated that “the Second

27
Amendment does not protect those weapons not typically possessed

by law-abiding citizens for lawful purposes, such as short-

barreled shotguns.” 554 U.S. at 625 (emphasis added).

We find nothing in the record demonstrating that law-

abiding citizens have been historically prohibited from

possessing semi-automatic rifles and LCMs. See Friedman, 784

F.3d at 418 (Manion, J., dissenting) (“[O]utside of weapons

deemed dangerous or unusual, there is no historical tradition

supporting wholesale prohibitions of entire classes of

weapons.”). In fact, semi-automatic firearms have been in use

by the civilian population for more than a century.

“[I]nitially called ‘self-loading’ or ‘auto-loading’ firearms,”

J.A. 2254, semi-automatic weapons with detachable magazines

started to see significant advancements in the late 1800s. In

1893, the “Brochardt semi-auto pistol” was developed for the

civilian market. J.A. 2255. In 1905, Winchester produced a

semi-automatic rifle, equipped with either a five- or ten-round

detachable magazine. And, in 1963, Colt produced the SP-1 semi-

automatic rifle with a 20-round detachable magazine, later known

as the AR-15, a semi-automatic counterpart to the fully

automatic M-16. There is no record evidence or historical

documentation that these weapons were at all prohibited until

relatively recently.

Dangerous and Unusual Weapons

28
 Finally, the State argues that the banned semi-automatic

rifles are “unusually dangerous” and therefore do not fall

within the ambit of the Second Amendment. Heller makes clear

that “dangerous and unusual” weapons are not “weapons typically

possessed by law-abiding citizens for lawful purposes” that have

some degree of Second Amendment protection. But because all

firearms are dangerous by definition, the State reasons that

Heller must mean firearms that are “unusually dangerous” fall

altogether outside of the scope of the Second Amendment. The

State views the banned guns and LCMs as “unusually dangerous,”

rendering the Second Amendment inapplicable to the ban.

The State’s novel “unusually dangerous” standard reads too

much into Heller. As best we can tell, no statute or case has

mentioned, much less adopted, the State’s newly proffered

standard.

In distinguishing between protected and unprotected

weapons, Heller focused on whether the weapons were typically or

commonly possessed, not whether they reached or exceeded some

undefined level of dangerousness. Hand grenades, sawed-off

shotguns and fully automatic “M-16 rifles and the like,” Heller,

554 U.S. at 627, are unusual weapons that fall outside of the

Second Amendment because they are not in common use or typically

possessed by the citizenry, see id.; Fincher, 538 F.3d at 874

(“Machine guns are not in common use by law-abiding citizens for

29
lawful purposes and therefore fall within the category of

dangerous and unusual weapons that the government can prohibit

for individual use.”).

Nothing in Heller suggests that courts considering a Second

Amendment challenge must decide whether a weapon is “unusually

dangerous.” Moreover, the difficulties that would arise from

the application of such a standard are fairly apparent. How is

a court to determine which weapons are too dangerous to

implicate the Second Amendment? The district court believed

that semi-automatic rifles with LCMs are too dangerous based on

evidence that they unleash greater destructive force than other

firearms and appear to be disproportionately connected to mass

shootings. But if the proper judicial standard is to go by

total murders committed, then handguns should be considered far

more dangerous than semi-automatic rifles. “[M]ost murders in

America are committed with handguns. No other weapon is used

nearly as often. During 2006, handguns were used in 60% of all

murders while long guns . . . were used only in 7%.” Carl T.

Bogus, Gun Control & America’s Cities: Public Policy &

Politics, 1 Alb. Gov’t L. Rev. 440, 447 (2008) (footnote

omitted). And, the use of handguns in the number of overall

homicides is out of proportion to the ownership of handguns.

See id. at 447 (“[A]mong the 192 million guns in America only

35% are handguns. . . [H]andguns are used in 88% of all firearm

30
murders.” (footnote omitted)). Yet Heller has established that

handguns are constitutionally protected and therefore cannot be

too dangerous for Second Amendment purposes.

Furthermore, Heller refers to “dangerous” and “unusual”

conjunctively, suggesting that even a dangerous weapon may enjoy

constitutional protection if it is widely employed for lawful

purposes, i.e., not unusual. Founding era understandings of

what it means for something to be “unusual” reflect that the

firearm must be rare to be considered “unusual.” See Samuel

Johnson, A Dictionary of the English Language 717 (1768)

(defining “unusual” as “not common: not frequent: rare”);

Bailey, supra, at 641 (defining “unusualness” as “rareness, and

uncommonness”); accord Peruta v. Cnty. of San Diego, 742 F.3d

1144, 1154 (9th Cir. 2014) (suggesting that laws applicable to

“dangerous and unusual” weapons were “understood to cover

carriage of uncommon, frightening weapons only”). Scholars

often read “unusual” in the same way. See, e.g., Jordan Pratt,

Uncommon Firearms as Obscenity, 81 Tenn. L. Rev. 633, 637 (2014)

(equating “dangerous and unusual” firearms with “uncommon”

ones”); Dan Terzian, The Right to Bear (Robotic) Arms, 117 Penn

St. L. Rev. 755, 767 (2013) (“Most likely, common use is the

sole limiting principle.”). If the firearm in question is

commonly possessed for lawful purposes, it certainly isn’t

“rare” and thereby “unusual.” See, e.g., Fyock, 25 F. Supp. 3d

31
at 1275 (“To measure whether a weapon is dangerous and unusual,

the court looks at whether it is in common use . . . .”); In re

Wheeler, 81 A.3d 728, 750 (N.J. App. Div. 2013) (“[T]he

protection was not understood to extend to the keeping, carrying

or using of weapons that were deemed dangerous or unusual, in

the sense that they were not typically used by the law-abiding

and responsible for lawful purposes.”). Indeed, it was only a

dissent in Heller that focused on dangerousness alone. See

Heller, 554 U.S. at 711 (Breyer, J., dissenting). Thus, the

State’s “unusually dangerous” argument is of no avail. Our good

colleague in dissent would not reach this issue and therefore

assumes for analytical purposes that semi-automatic rifles like

the AR-15 are not “dangerous and unusual” but are commonly

possessed by law-abiding citizens for lawful purposes. 8

In sum, semi-automatic rifles and LCMs are commonly used

for lawful purposes, and therefore come within the coverage of

the Second Amendment. 9

8 Although the dissent faults our conclusion that the AR-15
and other semi-automatic rifles prohibited by Maryland law are
not so “dangerous and unusual” that they fall outside of the
scope of the Second Amendment, the dissent does not rest on
unusual dangerousness grounds.
9 Plaintiffs go too far in arguing that once we determine
that the prohibited firearms fall within the protective ambit of
the Second Amendment, the Act is unconstitutional and our
analysis is at an end. Although Heller indicated that the
District of Columbia’s ban on keeping operable handguns in the
home would fail any level of constitutional scrutiny, Heller did
(Continued)
32
 B. Appropriate Level of Scrutiny

Having determined that the Second Amendment covers the

prohibited semi-automatic rifles, we next consider whether the

district court erred in applying intermediate scrutiny.

We first consider which of the two relevant standards of

scrutiny (strict or intermediate scrutiny) should apply. 10 The

strict-scrutiny standard requires the government to prove its

restriction is “narrowly tailored to achieve a compelling

not do away with means-end scrutiny for Second Amendment
challenges. Heller simply found it unnecessary to decide the
applicable level of scrutiny because a ban of handguns, the
overwhelming choice of Americans for home defense, was clearly
unconstitutional regardless of the standard applied. See Heller
II, 670 F.3d at 1265 (“If the Supreme Court truly intended to
rule out any form of heightened scrutiny for all Second
Amendment cases, then it surely would have said at least
something to that effect.”). Accordingly, in most every post-
Heller case implicating the Second Amendment, we have assumed
that “an appropriate form of means-end scrutiny” will be applied
once we determine that a challenged law implicates the Second
Amendment. See United States v. Pruess, 703 F.3d 242, 245 (4th
Cir. 2012); United States v. Carpio-Leon, 701 F.3d 974, 978 (4th
Cir. 2012); United States v. Carter (“Carter I”), 669 F.3d 411,
416 (4th Cir. 2012); United States v. Chapman, 666 F.3d 220, 225
(4th Cir. 2012); United States v. Staten, 666 F.3d 154, 158 (4th
Cir. 2011); Chester II, 628 F.3d at 678. Unless the Supreme
Court directs us to the contrary, we will apply “an appropriate
means-end scrutiny” to determine whether firearm regulations can
apply to acts coming under the protection of the Second
Amendment.

10 In a Second Amendment challenge, we will not conduct
rational-basis review. See Heller, 554 U.S. at 628 n.27 (“If
all that was required to overcome the right to keep and bear
arms was a rational basis, the Second Amendment would be
redundant with the separate constitutional prohibitions on
irrational laws, and would have no effect.”).

33
governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82

(1997); see Citizens United v. Federal Election Comm’n, 558 U.S.

310, 340 (2010) (explaining strict scrutiny “requires the

Government to prove that the restriction furthers a compelling

interest and is narrowly tailored to achieve that interest”

(internal quotation marks omitted)). To be narrowly tailored,

the law must employ the least restrictive means to achieve the

compelling government interest. See United States v. Playboy

Entertainment Group, Inc., 529 U.S. 803, 813 (2000).

Conversely, intermediate scrutiny requires the government to

“demonstrate . . . that there is a reasonable fit between the

challenged regulation and a substantial government objective.”

Chester, 628 F.3d at 683. For several reasons, we find that the

Act’s firearms and magazine bans require strict scrutiny.

In Chester, we adopted a First-Amendment-like approach to

determining the appropriate level of scrutiny to apply to any

given Second Amendment challenge. To select the proper level of

scrutiny, we consider “the nature of the conduct being regulated

and the degree to which the challenged law burdens the right.”

628 F.3d at 682. “A less severe regulation -- a regulation that

does not encroach on the core of the Second Amendment --

requires a less demanding means-ends showing.” Nat’l Rifle

Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco & Firearms, 700

F.3d 185, 195 (5th Cir. 2012); see also United States v.

34
Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012) (“The right

to bear arms, however venerable, is qualified by what one might

call the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘why.’”).

First, the FSA’s ban on semi-automatic rifles and larger-

capacity magazines burdens the availability and use of a class

of arms for self-defense in the home, where the protection

afforded by the Second Amendment is at its greatest. It

implicates the “core” of the Second Amendment: “the right of

law-abiding, responsible citizens to use arms in defense of

hearth and home.” Heller, 554 U.S. at 634, 635; see Kachalsky

v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (“What

we know from [Heller and McDonald] is that Second Amendment

guarantees are at their zenith within the home.”). At stake

here is a “basic right,” McDonald, 561 U.S. at 767, “that the

Framers and ratifiers of the Fourteenth Amendment counted . . .

among those fundamental rights necessary to our system of

ordered liberty,” id. at 778. Indeed, “[t]he [Supreme] Court

[in Heller] went to great lengths to emphasize the special place

that the home—an individual's private property—occupies in our

society.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244,

1259 (11th Cir. 2012).

Second, we conclude that the challenged provisions of the

FSA substantially burden this fundamental right. The burden

imposed in this case is not merely incidental. Maryland law

35
imposes a complete ban on the possession by law-abiding citizens

of AR-15 style rifles—the most popular class of centerfire semi-

automatic rifles in the United States. As we explained in

Section III.A., these weapons are protected under the Second

Amendment. We therefore struggle to see how Maryland’s law

would not substantially burden the core Second Amendment right

to defend oneself and one’s family in the home with a firearm

that is commonly possessed by law-abiding citizens for such

lawful purposes. Moreover, the FSA also reaches every instance

where an AR-15 platform semi-automatic rifle or LCM might be

preferable to handguns or bolt-action rifles--for example

hunting, recreational shooting, or competitive marksmanship

events, all of which are lawful purposes protected by the

Constitution. See Friedman v. City of Highland Park, 136 S. Ct.

447 (Mem.) (December 7, 2015) (Thomas, J., dissenting from the

denial of cert.) (“[T]he ordinance criminalizes modern sporting

rifles (e.g., AR-style semiautomatic rifles), which many

Americans own for lawful purposes like self-defense, hunting,

and target shooting.”). Thus, the FSA completely prohibits,

not just regulates, an entire category of weaponry. 11 As Judge

11 Despite my good friend’s contrary suggestion, in
prohibiting the AR-15 platform or pattern rifles and its copies
or imitations, Maryland law is prohibiting an entire class of
semi-automatic rifles. Indeed, the district court recognized
that the Maryland firearm law “remove[s] a class of weapons”
(Continued)
36
Kavanaugh noted in dissent in Heller II, prohibiting this group

of weapons might be “equivalent to a ban on a category of

speech.” 670 F.3d at 1285.

Contrary to the district court’s conclusion, the fact that

handguns, bolt-action and other manually-loaded long guns, and,

as noted earlier, a few semi-automatic rifles are still

available for self-defense does not mitigate this burden. See,

e.g., Jackson v. City & Cnty. of San Fran., 135 S. Ct. 2799,

2801 (2015) (Thomas, J., dissenting from the denial of

certiorari) (“[N]othing in our decision in Heller suggested that

a law must rise to the level of the absolute prohibition at

issue in that case to constitute a ‘substantial burden’ on the

core of the Second Amendment right.”). Indeed, the Supreme

Court rejected essentially the same argument in Heller—that the

District of Columbia’s handgun ban did not unconstitutionally

that the plaintiffs want for home defense. J.A. 181 (emphasis
added). Even the State’s expert witness refers to the “AR-15
class” of firearms. J.A. 438, Modern sporting rifles using the
AR-15 platform or pattern are produced by numerous manufacturers
including Colt, Olympic Arms, DPMS, Eagle Arms, Bushmaster, SGW
Enterprises, Essential Arms, and Sendra. Although the FSA
specifically lists the “Colt AR-15” as a prohibited weapon, the
AR-15 style semi-automatic rifles produced by other
manufacturers would be prohibited as copies or imitations under
Md. Code, Pub. Safety § 5-101(r)(2)(xv). See Friedman v. City
of Highland Park, 136 S. Ct. 447 (Mem.) (December 7, 2015)
(Thomas, J., dissenting from the denial of cert.) (describing
similar “Assault Weapons” ordinance as “categorical[ly]
ban[ning] . . . firearms that millions of Americans commonly own
for lawful purposes”); see also J.A. 413.

37
burden the right to self-defense because the law permitted the

possession of long guns for home defense. See Heller, 554 U.S.

at 629 (“It is no answer to say, as petitioners do, that it is

permissible to ban the possession of handguns so long as the

possession of other firearms (i.e., long guns) is allowed.”);

accord Parker v. District of Columbia, 478 F.3d 370, 400 (D.C.

Cir. 2007) (rejecting the District’s argument that alternative

weapons rendered handgun ban lawful, calling it “frivolous,” and

noting that “[i]t could be similarly contended that all firearms

may be banned so long as sabers were permitted”); cf.

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556

(1975) (“[O]ne is not to have the exercise of liberty of

expression in appropriate places abridged on the plea that it

may be exercised in some other place.”). A semi-automatic rifle

may not be “the quintessential self-defense weapon,” as Heller

described the handgun, 554 U.S. at 629; nonetheless, as we

explained previously, AR-15s and the like are commonly possessed

by law-abiding citizens for self-defense and other lawful

purposes and are protected under the Second Amendment.

There are legitimate reasons for citizens to favor a semi-

automatic rifle over handguns in defending themselves and their

families at home. The record contains evidence suggesting that

“handguns are inherently less accurate than long guns” as they

“are more difficult to steady” and “absorb less of the recoil .

38
. . , reducing accuracy.” J.A. 2131. This might be an

important consideration for a typical homeowner, who “under the

extreme duress of an armed and advancing attacker is likely to

fire at, but miss, his or her target.” J.A. 2123. “Nervousness

and anxiety, lighting conditions, the presence of physical

obstacles . . . and the mechanics of retreat are all factors

which contribute to [the] likelihood” that the homeowner will

shoot at but miss a home invader. J.A. 2123. These factors

could also affect an individual’s ability to reload a firearm

quickly during a home invasion. Similarly, a citizen’s ability

to defend himself and his home is enhanced with an LCM.

In sum, for a law-abiding citizen who, for whatever reason,

chooses to protect his home with a semi-automatic rifle instead

of a semi-automatic handgun, or possesses an LCM for use in

firearms kept in the home, the FSA significantly burdens the

exercise of the right to arm oneself at home. “The right to

self-defense is largely meaningless if it does not include the

right to choose the most effective means of defending oneself.”

Friedman, 784 F.3d at 418 (Manion, J., dissenting); see id. at

413 (“[T]he ultimate decision for what constitutes the most

effective means of defending one’s home, family, and property

resides in individual citizens and not the government. . . .

The extent of danger—real or imagined—that a citizen faces at

home is a matter only that person can assess in full.”). The

39
FSA “restrict[s] the right[] of [Maryland’s] citizens to select

the means by which they defend their homes and families.” Id.

at 419.

As we have noted on previous occasions, “any law that would

burden the ‘fundamental,’ core right of self-defense in the home

by a law-abiding citizen would be subject to strict scrutiny.

But, as we move outside the home, firearm rights have always

been more limited.” United States v. Masciandaro, 638 F.3d 458,

470 (4th Cir. 2011). “[T]his longstanding out-of-the-home/in-

the-home distinction bears directly on the level of scrutiny

applicable,” id., with strict scrutiny applying to laws

restricting the right to self-defense in the home, see Woollard

v. Gallagher, 712 F.3d 865, 878 (4th Cir. 2013) (observing that

restrictions on “the right to arm oneself at home” necessitates

the application of strict scrutiny). Strict scrutiny, then, is

the appropriate level of scrutiny to apply to the ban of semi-

automatic rifles and magazines holding more than 10 rounds. See

Friedman, 784 F.3d at 418 (Manion, J., dissenting); cf. Heller

II, 670 F.3d at 1284 (Kavanaugh, J., dissenting) (reading Heller

as departing from traditional scrutiny standards but stating

that “[e]ven if it were appropriate to apply one of the levels

of scrutiny after Heller, surely it would be strict scrutiny

rather than . . . intermediate scrutiny”).

40
 We recognize that other courts have reached different

outcomes when assessing similar bans, but we ultimately find

those decisions unconvincing.

The Seventh Circuit, for instance, recently upheld a ban on

“assault weapons” and LCMs by dispensing with levels of scrutiny

entirely. See Friedman, 784 F.3d at 410. Instead, that court

conjured its own test, asking “whether a regulation bans weapons

that were common at the time of ratification or those that have

some reasonable relationship to the preservation or efficiency

of a well regulated militia, and whether law-abiding citizens

retain adequate means of self-defense.” Id. (internal quotation

marks and citations omitted). The Seventh Circuit’s approach

cannot be reconciled with Heller, which looked to present-day

use to assess whether handguns are in common use (and

consequently protected). See 554 U.S. at 629; see also id. at

582 (“Some have made the argument, bordering on the frivolous,

that only those arms in existence in the 18th century are

protected by the Second Amendment.” (emphasis added)).

Friedman, on the other hand, ignores the Supreme Court’s

specification of present-day focus and asks instead whether

certain features of the weapons in question were common at the

time of the Founding, effectively elevating a Heller dissent to

constitutional canon. Compare Friedman, 784 F.3d at 408-09

(suggesting that present day common use cannot be the relevant

41
test because machine guns were in common use when they were

federally banned in 1934 and are now uncommon because of the

ban), with Heller, 554 U.S. at 720-21 (Breyer, J., dissenting)

(same).

Friedman’s problems stretch beyond its direct contradiction

of Heller. For instance, the Friedman opinion defines the scope

of the Second Amendment right by reference to militias -- but it

then declares that states, “which are in charge of militias,”

should determine what weapons are rightfully held for militia-

related purposes. Friedman, 784 F.3d at 410-11. That course

effectively permits states to opt-out of the Second Amendment.

But see McDonald, 561 U.S. at 750 (“[T]he Second Amendment right

is fully applicable to states.”). Friedman also concludes that

the “dangerousness” of the regulated weapons should not be

decisive, Friedman, 784 F.3d at 409, but nevertheless dismisses

the self-defense-related benefits of those same weapons because

they “can fire more shots, faster, and thus can be more

dangerous in aggregate,” id. at 411. And it recognizes that the

restriction must be supported by some genuine state interest,

but then finds such an interest in the fact that bans might

“reduce[] the perceived risk from a mass shooting.” Id. at 412

(emphasis added). In other words, under the Seventh Circuit’s

view, a significant restriction on a fundamental right might be

justified by benefits that are quite literally imagined into

42
existence. Needless to say, we see much to question in the

Seventh Circuit’s decision.

Two courts of appeal have applied the standard of

intermediate scrutiny to restrictions like Maryland’s. See

Fyock, 779 F.3d at 999 (applying intermediate scrutiny to an LCM

ban); Heller II, 670 F.3d at 1262 (applying intermediate

scrutiny to a semi-automatic weapon and LCM ban). Both did so

after rather conclusorily determining that the bans in those

cases did not impose any significant burden on the Second

Amendment right. For its part, the D.C. Circuit was “reasonably

certain” that the challenged laws didn’t impose a substantial

burden, Heller II, 670 F.3d at 1262, while the Ninth Circuit

found that the district court did not “abuse [its] discretion”

at the preliminary injunction stage in finding much the same,

Fyock, 779 F.3d at 999.

For example, the D.C. Circuit in Heller II, with de minimis

analysis, simply concluded that prohibitions of the arms in

question would meet intermediate scrutiny because “the ban on

certain semi-automatic rifles [does not] prevent a person from

keeping a suitable and commonly used weapon for protection in

the home or for hunting[.]” 670 F.3d at 332. As noted earlier,

this genre of judicial conclusion seems plainly contrary to the

Supreme Court’s logic and statements in Heller: “It is no answer

to say . . . that it is permissible to ban the possession of

43
handguns so long as the possession of other firearms (i.e., long

guns) is allowed.” 554 U.S. at 629. Notwithstanding this

guidance from the Supreme Court, the Heller II court went on to

also summarily conclude that “the prohibition of semi-automatic

rifles and large-capacity magazines does not effectively disarm

individuals or substantially affect their ability to defend

themselves.” 670 F.3d at 1262. This holding seems to directly

contradict the Supreme Court’s statement in Heller that the

Second Amendment “surely elevates above all other interests the

right of law-abiding, responsible citizens to use arms in

defense of hearth and home.” 554 U.S. at 635. Thus, we find

Heller II and Fyock without persuasive reasoning and simply

incorrect.

Whatever may be said about the bans at issue in Fyock and

Heller II, it should be obvious by this point that we view

Maryland’s ban quite differently. A wholesale ban on an entire

class of common firearms is much closer to the total handgun ban

at issue in Heller than more incidental restrictions that might

be properly subject to intermediate scrutiny. The law here

“goes beyond mere regulation” and is instead “a total

prohibition of possession of certain types of arms.” Arnold v.

Cleveland, 616 N.E.2d 163, 176 (Ohio 1993) (Hoffman, J.,

concurring in part and dissenting in part) (addressing assault-

weapons ban); see also Marzzarella, 614 F.3d at 97 (stressing

44
that the ban in Heller was subject to most scrutiny because

“[i]t did not just regulate possession of handguns; it

prohibited it”). In this way, Maryland’s outright ban on LCMs

and “assault weapons” is akin to a law that “foreclose[s] an

entire medium of expression.” City of Ladue v. Gilleo, 512 U.S.

43, 55 (1994). Such laws receive exceptionally rigorous review

in the analogous context of the First Amendment, id., and we see

no reason for a different method here.

Our distinguished dissenting colleague asserts that we have

imprudently and unnecessarily broken with our sister courts of

appeal and infers that we will bear some responsibility for

future mass shootings. In our view, inferences of this nature

have no place in judicial opinions and we will not respond

beyond noting this. The meaning of the Constitution does not

depend on a popular vote of the circuits and it is neither

improper nor imprudent for us to disagree with the other

circuits addressing this issue. We are not a rubber stamp. We

require strict scrutiny here not because it aligns with our

personal policy preferences but because we believe it is

compelled by the law set out in Heller and Chester.

Because the district court did not evaluate the challenged

provisions of the FSA under the proper standard of strict

scrutiny, and the State did not develop the evidence or

arguments required to support the FSA under the proper standard,

45
we vacate the district court’s order as to Plaintiffs’ Second

Amendment challenge and remand for the court to apply strict

scrutiny in the first instance. This is not a finding that

Maryland’s law is unconstitutional. It is simply a ruling that

the test of its constitutionality is different from that used by

the district court. The State should be afforded the

opportunity to develop its case in light of this more demanding

standard, and Plaintiffs should be permitted to do so as well.

In doing so, the parties may look to “a wide range of sources,

such as legislative text and history, empirical evidence, case

law, and common sense, as circumstances and context require.”

Carter I, 669 F.3d at 418. 12

IV. Equal Protection

12 In light of our decision to remand the Second Amendment
claim, we need not address Plaintiffs’ arguments that the
district court committed error by granting summary judgment to
the State when there were several material facts in dispute,
and, by the same token, denying summary judgment to Plaintiffs
when the record contained various undisputed material facts that
required entry of judgment as a matter of law in favor of
Plaintiffs.

Plaintiffs also contest the district court’s denial of
their motion to exclude expert and fact testimony offered by the
State. Having carefully considered these arguments, we conclude
that the district court did not abuse its wide discretion in
evidentiary matters by denying the motions and considering the
testimony. See United States v. Min, 704 F.3d 314, 324-25 (4th
Cir. 2013) (decisions under Rule of Evidence 701 reviewed for
abuse of discretion); United States v. Wilson, 484 F.3d 267, 273
(4th Cir. 2007) (Rule of Evidence 702).

46
AGEE, Circuit Judge, wrote a separate opinion as to Part IV, in
which Judge King concurred in the judgment:

The Equal Protection Clause guarantees that no state shall

“deny to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, § 1. 13 It does not

follow, however, that all classifications are forbidden.

Instead, the Equal Protection Clause is designed to “keep[]

governmental decisionmakers from treating differently persons

who are in all relevant respects alike.” Nordlinger v. Hahn,

505 U.S. 1, 10 (1992). In our view, the district court

correctly determined that retired police officers are not

similarly situated with the public at large for purposes of the

Maryland Firearm Safety Act (“FSA”). Therefore, granting those

officers certain rights under the FSA does not violate the Equal

Protection Clause.

A.

1.

To succeed on an equal-protection claim, “a plaintiff must

first demonstrate that he has been treated differently from

others with whom he is similarly situated.” Sandlands C & D LLC

v. Cnty. of Horry, 737 F.3d 45, 55 (4th Cir. 2013). “Generally,

in determining whether persons are similarly situated for equal

13This portion of the opinion omits internal marks,
alterations, citations, emphasis, or footnotes from quotations
unless otherwise noted.

47
protection purposes, a court must examine all relevant factors.”

United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)

(emphasis added). The court applies an appropriate level of

constitutional scrutiny to the challenged governmental act only

after the plaintiff makes this initial showing of similarity,

along with a showing that the government acted purposefully or

intentionally. Sandlands C & D LLC, 737 F.3d at 55.

The “similarly situated” standard requires a plaintiff to

identify persons materially identical to him or her who has

received different treatment. Different courts describe this

requirement in different ways. The Seventh Circuit, for

example, has said that the two compared groups must be

“identical or directly comparable in all material respects.”

LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937, 942

(7th Cir. 2010). The Eleventh Circuit indicates that different

groups must be “prima facie identical” to provide the relevant

comparison. Grider v. City of Auburn, Ala., 618 F.3d 1240, 1264

(11th Cir. 2010). The First Circuit, meanwhile, takes a more

colloquial approach, stressing that “apples should be compared

to apples.” Barrington Cove Ltd. P’ship v. R.I. Hous. & Mortg.

Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001). However the test is

written, the basic point is the same: the “evidence must show an

extremely high degree of similarity.” Willis v. Town of

Marshall, N.C., 275 F. App’x 227, 233 (4th Cir. 2008); see also

48
LaBella, 628 F.3d at 942 (“The similarly situated analysis is

not a precise formula, but . . . what is clear is that similarly

situated individuals must be very similar indeed.”).

2.

A retired officer enjoys two privileges under the FSA that

the public does not. First, he may possess an “assault weapon”

as long as it was “sold or transferred to the [officer] by the

law enforcement agency on retirement” or the officer “purchased

or obtained” it “for official use with the law enforcement

agency before retirement.” Md. Code, Crim. Law § 4-302(7).

Second, he is not subject to any of the restrictions on larger-

capacity magazines. Id. § 4-305(a)(2).

Exceptions for retired law enforcement officers like these

are common in firearms regulations. See, e.g., Cal. Penal Code

§§ 25450, 26015; D.C. Code § 7-2502.01(a)(2); N.Y. Penal Law

§ 265.20.e (McKinney 2015); see also Public Safety and

Recreational Firearms Use Protection Act, Pub. L. No. 103-322,

§ 110102(a)(4)(C), 108 Stat. 1796, 1996 (1994) (repealed 2004).

But according to Plaintiffs, the differentiation found in

Maryland’s law renders the entire FSA unconstitutional. See

Opening Br. 44 n.8.

B.

Plaintiffs argue that, when it comes to owning semi-

automatic weapons and larger-capacity magazines, retired law

49
enforcement officers and the public at large are “similarly

situated.” In our view, that argument fails because retired law

enforcement officers are different from the public in several

fundamental respects. Three dissimilarities are particularly

relevant.

1.

First, retired police officers possess a unique combination

of training and experience related to firearms. See Shew v.

Malloy, 994 F. Supp. 2d 234, 252 (D. Conn. 2014); Pineiro v.

Greene, 937 F. Supp. 2d 161, 176 (D. Mass. 2013). All Maryland

police officers undergo comprehensive training and qualification

on their firearms. See Code of Md. Admin. Regs. 12.04.02.03–

.10. This training incorporates live-fire exercises and

academic study. Moreover, it covers not just how to fire a

weapon accurately, but also when a given firearm is

appropriately used, how to minimize harm, and how to safely

store the firearm -- among many other subjects. After initial

qualification, officers must then undergo additional training

every year.

The officers do not just participate in some “general” form

of firearms training. Rather, the officers that carry assault

weapons on duty -- and thus, those most likely to obtain those

weapons upon retirement -- must receive further training and

certification tests that pertain specifically to those weapons.

50
An officer who wishes to carry an AR-15, for instance, must fire

at least 350 rounds of ammunition with that weapon during

initial training and qualification. See id. 12.04.02.06B(3)(c).

The same officer must also spend at least 14 hours in the

classroom discussing the appropriate use of such weapons. See

id. 12.04.02.06B(2)(c). If an officer fails to meet any one of

these requirements, he may not carry that weapon.

On a day-to-day basis, through their years of employment,

police officers gain further practical experience with their

weapons -- experience that few, if any, private civilians can

claim to possess in equal measure. For “[u]nlike most employees

in the workforce, peace officers carry firearms because their

occupation requires them on occasion to confront people who have

no respect either for the officers or for the law.” Gonzalez v.

City of Anaheim, 747 F.3d 789, 799 (9th Cir. 2014) (Trott, J.,

dissenting in part and concurring in part); see also United

States v. Fernandez, 121 F.3d 777, 780 (1st Cir. 1997) (“[L]aw

enforcement officers usually carry weapons[.]”). Indeed, perhaps

except for military personnel, police officers likely have more

experience with a firearm than any other profession in America.

And retired police officers are eligible to possess

prohibited firearms under the FSA only when those firearms come

directly from their employer upon retirement. In other words,

the FSA does not grant open permission to acquire prohibited

51
firearms at will. The officers will therefore have special

familiarity and training with the specific weapons they are

permitted to obtain. It is significant that the FSA exceptions

for retired police officers contain this clear nexus to their

professional law enforcement employment and training.

2.

Second, because they are granted a “special degree of

trust,” O’Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir.

1998), police officers are instilled with what might be called

an unusual ethos of public service. “[Police forces] must

demand a high level of discipline and duty of their members in

order to function effectively for the good of all members of

society.” Vorbeck v. Schnicker, 660 F.2d 1260, 1263 (8th Cir.

1981). Officers swear to uphold the law and serve the public

from the very start. Indeed, they most often take such an oath

on their first day as an officer. Once employed, they agree to

“serve mankind,” and “to safeguard lives and property; to

protect the innocent against deception; the weak against

oppression or intimidation, and the peaceful against violence or

disorder.” John Kleinig, The Ethics of Policing 236 (1996)

(quoting International Association of Chiefs of Police’s Law

Enforcement Code of Ethics); see also Seegmiller v. LaVerkin

City, 528 F.3d 762, 765 (10th Cir. 2008) (describing a law

enforcement code of ethics); Thaeter v. Palm Beach Cty.

52
Sheriff’s Office, 449 F.3d 1342, 1345-46 (11th Cir. 2006)

(same).

The officers’ responsibilities go beyond mere pledges and

oaths, as the law requires police officers to meet the highest

standards of conduct in acting to protect the public. For

example, a police officer “owe[s] a fiduciary duty to the public

to make governmental decisions in the public’s best interests.”

United States v. Woodard, 459 F.3d 1078, 1086 (11th Cir. 2006).

Likewise, “police have a duty to protect both the lives and the

property of citizens.” United States v. Markland, 635 F.2d 174,

176 (2d Cir. 1980). The law then grants officers the authority

to arrest, detain, and use force to fulfill these essential

responsibilities.

Given these publicly oriented responsibilities, law

enforcement officers -- retired and active alike -- are “not to

be equated with a private person engaged in routine public

employment or other common occupations of the community.” Foley

v. Connelie, 435 U.S. 291, 298 (1978); see also Peña v. Lindley,

No. 2:09–CV–01185–KJM–CKD, 2015 WL 854684, at *17 (E.D. Cal.

Feb. 26, 2015) (holding that police officers’ charge to protect

the public differentiated them from the public); Shew, 994 F.

Supp. 2d at 252 (same); cf. Detroit Police Officers Ass’n v.

City of Detroit, 190 N.W.2d 97, 98 (Mich. 1971) (“The police

force is a semi-military organization subject at all times to

53
immediate mobilization, which distinguishes this type of

employment from every other in the classified service.”).

Retired and active police officers are used to acting in the

public interest in a way that does not apply to the public at

large.

3.

Third, retired police officers face special threats that

private citizens do not. Most obviously, “retired law

enforcement officers often have to defend themselves . . . from

criminals whom they have arrested.” H.R. Rep. 108-560, at 4

(2004), reprinted in 2004 U.S.C.C.A.N. 805, 806; see, e.g.,

Alison Gendar, Ex-Con with Grudge Busted in Bashing, N.Y. Daily

News, July 1, 2007, at 13 (“Armed with a grudge and a set of

brass knuckles, an ex-con pummeled a retired cop last week as

payback for a minor arrest in 2002, authorities said.”). This

“greater risk of retaliatory violence,” which continues

“following retirement,” makes law enforcement officers different

even from other public employees. In re Wheeler, 81 A.3d 728,

763 (N.J. App. Div. 2013); see also Nichols v. Brown, No. CV 11–

09916 SJO, 2013 WL 3368922, at *6 (C.D. Cal. July 3, 2013); Mehl

v. Blanas, No. Civ. S 03-2682 MCE KHM, slip op. at 11 (E.D. Cal.

Sept. 3, 2004) (“While an officer’s duty to respond to the

public’s calls for help stops when he retires, the threat of

danger from enemies he might have made during his service does

54
not.”); cf. Williams v. Puerto Rico, 910 F. Supp. 2d 386, 399

(D.P.R. 2012) (noting that current and former government

officials have a greater need for firearms because “[t]he

sensitive nature of many of their jobs . . . subjects them to

additional risks of danger”).

What’s more, the same public spirit and sense of civic duty

that motivated retired law enforcement officers when they were

active might also lead them to intervene more often in dangerous

situations in retirement. Just recently, for example, a retired

police officer was injured when he allegedly interrupted a

robbery at his neighbor’s house. See Matthew J. Coyne, Charges

for 2 in Ex-Cop’s Shooting, J. News (Westchester, N.Y.), July

15, 2015, at A1. Other examples are easy to find. See, e.g.,

Kevin K. Ivesmillard, Cops: Evidence Doesn’t Support Teen

Burglar’s Account of How He Was Shot, Daily Commercial

(Leesburg, Fla.), Aug. 12, 2015, at A1 (describing a retired

police officer’s shooting of a burglar who allegedly attacked

him); Andrew Dys, Suspect Linked to Chester Councilman’s Killing

Pleads Guilty to Drug Charge, Herald (Rock Hill, S.C.), Mar. 17,

2015, at 521 (describing how a retired police officer was

allegedly shot after he followed gang members en route to a

robbery).

* * * *

55
 Thus, in light of their special training, their extensive

experience, their commitment to public service, and their unique

need for protection in the face of post-retirement violence,

retired law enforcement officers are not similarly situated to

other Maryland citizens. That should end the equal-protection

analysis. See Brown v. Montoya, 662 F.3d 1152, 1173 (10th Cir.

2011) (“[T]o assert a viable equal protection claim, plaintiffs

must first make a threshold showing that they were treated

differently from others who were similarly situated to them.”).

C.

Chief Judge Traxler, in dissent on this issue, concedes

that retired police officers are not similarly situated, but

nonetheless deems that fact irrelevant -- positing that the

differences between retired officers and private citizens are

not sufficiently tied to the FSA’s perceived objectives to be

decisive. Plaintiffs never made this sort of argument; they

argued instead that retired police and private citizens are

equally well-trained and, consequently, similarly situated. The

dissent also focuses on a characteristic that Plaintiffs never

discuss: the “responsibility or authority . . . to protect” that

a retired police officer can (or cannot) be said to possess.

But even if Plaintiffs had pressed such a position, we should

not embrace it.

1.

56
 When passed, the FSA had a number of objectives. Among

other things, it sought to “keep guns away from criminals” and

lower the rate of gun deaths from incidents like “murders,

suicides, and accidents,” all while “protect[ing] legal gun

ownership.” See J.A. 1183-84. It did so by amending or

repealing 31 separate sections of the Maryland Code covering

matters as diverse as hunting areas, mental health, police

training, and state record-keeping requirements. See 2013 Md.

Laws Ch. 427. The sheer breadth of the legislation makes it

obvious that the legislation was meant to balance many,

sometimes-competing objectives.

The provisions permitting retired officers to obtain

restricted firearms and magazines are directly related to these

broad objectives. Police officers’ experience and training

makes it less likely that retired officers will harm others

through the unskilled use of their firearms. See Shew, 994 F.

Supp. 2d at 252; Pineiro, 937 F. Supp. 2d at 176. Given their

years in public service, retired police officers would also be

more likely use their firearms in ways consistent with the

public’s interests, not simply private ones. Retired police

officers would further be expected to exercise special care to

ensure that their firearms and magazines are not acquired for

criminal purposes. And permitting retired police officers these

particular firearms and magazines could deter the unique

57
retaliatory violence that only those officers face. Thus,

retired police officers have “distinguishing characteristics

relevant to the interests” that Maryland intended to serve in

enacting the FSA. City of Cleburne, Tex. v. Cleburn Living

Ctr., 473 U.S. 432, 441 (1985).

2.

In finding to the contrary, the dissent defines the FSA’s

legislative objectives too narrowly. It assumes that the

General Assembly intended the Act to eliminate all of the

restricted weapons, such that most any exception to a wholesale

ban would be inconsistent with that objective (regardless of the

characteristics of those who stand to benefit). But the General

Assembly’s intent seems more nuanced than that: to limit the

prevalence of purportedly dangerous firearms and magazines

except in those instances where (1) certain facts ameliorated

the expected harms from the restricted items, or (2) other

public interests justified the continuing risk.

This approach is entirely acceptable under the Equal

Protection Clause. “[T]here is no mandate that a state must

address its problems wholesale.” Helton v. Hunt, 330 F.3d 242,

246 (4th Cir. 2003); accord FCC v. Beach Commc’ns, Inc., 508

U.S. 307, 316 (1993) (“[T]he legislature must be allowed leeway

to approach a perceived problem incrementally.”). “[S]tates are

free to regulate by degree, one step at a time, addressing the

58
phase of the problem which seems most acute to the legislative

mind.” Helton, 330 F.3d at 246; accord Williamson v. Lee

Optical of Okla. Inc., 348 U.S. 483, 489 (1955) (“Evils in the

same field may be of different dimensions and proportions,

requiring different remedies. Or so the legislature may

think.”). The FSA is more appropriately characterized as such a

step-by-step attempt.

The dissent also casts its lot with the Ninth Circuit,

resting much of its analysis on an abrogated decision from that

court, Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002),

abrogated by District of Columbia v. Heller, 554 U.S. 570

(2008). But Silveira never engaged with the question before us,

namely, whether retired police officers are “similarly situated”

to private citizens. Instead, the Ninth Circuit ignored that

threshold issue and jumped straight to rational-basis review of

a California statute that granted retired police the right to

carry semi-automatic weapons despite a ban. See Silveira, 312

F.3d at 1090-91. The Ninth Circuit then established the

California statute’s objectives by relying on legislative

history and public statements specific to that statute, all of

which indicated that the California law was intended to

“eliminate the availability of the [restricted] weapons

generally.” Id. at 1091. In contrast, the record here contains

59
no evidence that the Maryland General Assembly had any similarly

prohibitionist intent.

Most fundamentally, Silveira appears to have been animated

by a hostility toward so-called “assault weapons” in general.

Id. (holding that there is no “legitimate state interest” in

permitting retired police officers -- and apparently anyone --

to “possess and use” “military-style weapons” “for their

personal pleasure”); cf. Nordyke v. King, 319 F.3d 1185, 1192

n.4 (9th Cir. 2003) (criticizing “the Silveira panel’s

unnecessary historical disquisition” in which it “took it upon

itself” to advance a limited reading of the Second Amendment).

Silveira’s equal-protection analysis should be put aside as a

legally unsound and factually distinguishable discussion that

lacks any persuasive authority.

D.

For all these reasons, we affirm the district court’s

decision on the equal-protection issue. Retired police officers

and the public are not similarly situated, and dissimilar

treatment of these dissimilar groups does not violate the Equal

Protection Clause.

TRAXLER, Chief Judge, wrote the opinion for the court as to
Parts V and VI, in which Judge Agee joined:

V. Vagueness

60
 Finally, Plaintiffs contend that the FSA is

unconstitutionally vague on its face because it is not drafted

with sufficient clarity to allow an ordinary citizen to

understand when a firearm qualifies as a “copy” of a banned

semi-automatic rifle. As previously explained, the FSA

prohibits possession of “assault long guns,” which are defined

by reference to the list of specific “assault weapons or their

copies” set forth in § 5-101(r)(2). The statute does not define

the term “copies,” and there is no state regulatory definition.

The FSA has not been enforced against Plaintiffs, and they do

not claim that they were forced to forego their Second Amendment

rights because they were uncertain whether weapons they wished

to acquire were prohibited. Nonetheless, Plaintiffs ask us to

invalidate this portion of the FSA under the Due Process Clause.

“Due process requires that a criminal statute provide

adequate notice to a person of ordinary intelligence that his

contemplated conduct is illegal, for no man shall be held

criminally responsible for conduct which he could not reasonably

understand to be proscribed.” United States v. Sun, 278 F.3d

302, 309 (4th Cir. 2002) (internal quotation marks omitted).

“[T]he void-for-vagueness doctrine requires that a penal statute

define the criminal offense with sufficient definiteness that

ordinary people can understand what conduct is prohibited and in

a manner that does not encourage arbitrary and discriminatory

61
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); see

United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993).

Our task is to determine “whether the government’s policy is set

out in terms that the ordinary person exercising ordinary common

sense can sufficiently understand and comply with.” Imaginary

Images, Inc. v. Evans, 612 F.3d 736, 749 (4th Cir. 2010)

(internal quotation marks omitted). In order to succeed on a

vagueness challenge, therefore, a litigant must “prove that the

enactment is vague not in the sense that it requires a person to

conform his conduct to an imprecise but comprehensible normative

standard, but rather in the sense that no standard of conduct is

specified at all.” Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982). Put another

way, he must demonstrate that the “provision simply has no

core.” Id. (internal quotation marks omitted).

The State urges us to apply the rule set forth in United

States v. Salerno, requiring Plaintiffs to establish that “no

set of circumstances exists under which the Act would be valid.”

481 U.S. 739, 745 (1987). We have noted previously that the

continuing validity of the “no set of circumstances” formulation

is unclear, see United States v. Comstock, 627 F.3d 513, 518

(4th Cir. 2010), and our concern was validated further in the

Supreme Court’s recent decision in Johnson v. United States, 135

S. Ct. 2551, 2561 (2015) (“[O]ur holdings squarely contradict

62
the theory that a vague provision is constitutional merely

because there is some conduct that clearly falls within the

provision’s grasp.”). Regardless, “at the very least, a facial

challenge cannot succeed if a statute has a ‘plainly legitimate

sweep.’” Comstock, 627 F.3d at 518 (quoting Crawford v. Marion

Cnty. Election Bd., 553 U.S. 181, 202 (2008); Martin v. Lloyd,

700 F.3d 132, 135 (4th Cir. 2012) (“[A] facial challenge is

ineffective if the statute has a plainly legitimate sweep.”

(internal quotation marks omitted)).

The phrase “assault weapons and their copies” has a plainly

legitimate sweep and is not unconstitutionally vague. Although

the Act does not specifically define “copy,” the plain meaning

of the word—“something that is or looks exactly or almost

exactly like something else: a version of something that is

identical or almost identical to the original”—is not beyond the

grasp of an ordinary citizen. Merriam-Webster online

dictionary. The word is a familiar one in Maryland state law,

Md. Code Pub. Safety § 5-101(r)(2), and even federal law, 18

U.S.C. § 921(a)(30)(A)(i) (1994 & Supp. V 1999). When read

together with the specific list of prohibited firearms, “copies”

is sufficiently definite to give notice to an ordinary person of

the conduct that would subject him to criminal sanctions—

possession of any firearm that is identical or almost identical

to any of the 60-plus semi-automatic rifles listed in the Act is

63
prohibited. Cf. United States v. Fontaine, 697 F.3d 221, 226-27

(3d Cir. 2012) (finding that statute prohibiting possession of

an imitation firearm during crime of violence was not

unconstitutionally vague).

Additionally, in 2010, Maryland’s Attorney General provided

guidance on the meaning of “copy” under section 5-101(r)(2) of

the Public Safety Code: “[A] copy of a designated assault weapon

must be similar in its internal components and function to the

designated weapon. Cosmetic similarity to an enumerated assault

weapon alone would not bring a weapon within the regulated

firearms law.” 95 Op. Att’y Gen. 101. J.A. 678. Following the

Attorney General’s issuance of this opinion, the Maryland State

Police issued a bulletin indicating that a firearm was subject

to regulation under the Act if it was “cosmetically similar to a

specifically enumerated assault weapon” and “has completely

interchangeable internal components necessary for the full

operation and function of any one of the specifically enumerated

assault weapons.” J.A. 676.

Plaintiffs argue that the typical gun owner would have no

way of knowing whether the internal components of one firearm

are interchangeable with the internal components of another.

This argument has a commonsense appeal; nonetheless, Plaintiffs

have not identified any firearm that they would not risk

possessing because of any uncertainty over the meaning of

64
“copies.” Although it is possible to invent “scenarios in which

a regulation might be subject to a successful vagueness

challenge,” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 371

(4th Cir. 2012), “speculation about possible vagueness in

hypothetical situations not before the Court will not support a

facial attack on a statute when it is surely valid in the vast

majority of its intended applications,” id. (internal quotation

marks omitted). It is telling that the weapons that Plaintiffs,

according to their own testimony, wish to acquire are all

clearly prohibited by the FSA. Section 5-101(r)(2) is therefore

“surely valid in the vast majority of its intended

applications.”

Finally, we note that this same list of “assault weapons or

their copies” has been on the books in Maryland for more than 20

years. Although possession of these weapons was not banned

prior to passage of the FSA, an individual could not acquire any

of the specifically listed “assault weapons” or their “copies”

without submitting to a background check. The failure to comply

with the regulations was subject to criminal sanctions. Yet,

Plaintiffs have not identified, and we are unaware of any

instance, where the term “copy” created uncertainty or was

challenged as too vague.

We reject Plaintiffs’ vagueness argument. A statute need

only have a “legitimate sweep,” Martin, 700 F.3d at 135, that

65
identifies a “core” of prohibited conduct, Hoffman Estates, 455

U.S. at 495 n.7. “A failure by a statute to define all of its

terms does not necessarily render it impermissibly vague,”

Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 191 n.4 (4th

Cir. 2013), and a “statute need not spell out every possible

factual scenario with celestial precision to avoid being struck

down on vagueness grounds,” United States v. Hager, 721 F.3d

167, 183 (4th Cir. 2013). In short, “[v]agueness review is

quite deferential.” United States v. Runyon, 707 F.3d 475, 502

(4th Cir. 2013). The challenged provisions of the Act

sufficiently demarcate a core of prohibited conduct under the

Act to survive that deferential test.

VI.

To sum up, the panel vacates the district court’s summary

judgment order on Plaintiffs’ Second Amendment claims and

remands for the district court to apply strict scrutiny. The

panel affirms the district court’s summary judgment order on

Plaintiffs’ Equal Protection claim with respect to the FSA’s

exception permitting retired law enforcement officers to possess

semi-automatic rifles. Finally, the panel affirms the district

court’s conclusion that the FSA is not unconstitutionally vague.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

66
KING, Circuit Judge, wrote an opinion dissenting as to Part III
and concurring in the judgment as to Parts IV and V:

There is sound reason to conclude that the Second Amendment

affords no protection whatsoever to the assault rifles and

shotguns, copycat weapons, and large-capacity detachable

magazines that are banned by the State of Maryland. Assuming,

however, that Maryland’s Firearm Safety Act (the “FSA”) burdens

the Second Amendment right, it is, put most succinctly, subject

to nothing more than intermediate scrutiny. Indeed, no

precedent of the Supreme Court or our own Court compels us to

rule otherwise. And the suitability of intermediate scrutiny is

confirmed by cogent decisions of other courts of appeals. I

therefore dissent insofar as the panel majority — charting a

course today that divides us from our sister circuits — vacates

the district court’s denial of the Plaintiffs’ Second Amendment

claims and remands for an application of strict scrutiny.

Although I am dissenting from the panel majority’s

reinstatement of the Second Amendment claims pressed by the

Plaintiffs, I concur in the judgment to the extent that we

affirm the district court’s denial of the Plaintiffs’ claims

that the FSA violates the Equal Protection Clause of the

Fourteenth Amendment and is unconstitutionally vague. I would,

in sum, wholly affirm the judgment of the district court on the

basis of its summary judgment decision, which I commend

67
unreservedly. See Kolbe v. O’Malley, 42 F. Supp. 3d 768 (D. Md.

2014). 1

I.

A.

Let’s be real: The assault weapons banned by Maryland’s

FSA are exceptionally lethal weapons of war. In fact, the most

popular of the prohibited semiautomatic rifles, the AR-15,

functions almost identically to the military’s fully automatic

M16. Significantly, the Supreme Court in its seminal Heller

decision singled out “M-16 rifles and the like,” i.e., arms

“that are most useful in military service,” as being “dangerous

and unusual weapons” not even protected by the Second Amendment.

See District of Columbia v. Heller, 554 U.S. 570, 624-25, 627

(2008) (recognizing “that the Second Amendment does not protect

those weapons not typically possessed by law-abiding citizens

1
In addition to a thoughtful and compelling analysis of the
Second Amendment claims, the district court provided all the
reasons needed to reject the equal protection and vagueness
claims. See Kolbe, 42 F. Supp. 3d at 797-99 (concluding that
the FSA does not violate the Equal Protection Clause by
excepting retired law enforcement officers from the assault-
weapon and large-capacity-magazine bans, in “that retired law
enforcement officers are differently situated by virtue of their
experiences ensuring public safety and their extensive training
on the use of firearms”); id. at 799-803 (ruling that, because
it imparts “sufficient notice of banned conduct,” including
“what constitutes a ‘copy’ of the banned assault long guns,” the
FSA is not unconstitutionally vague). As my good colleagues
recognize, see ante at 46 n.12, the district court also properly
denied the Plaintiffs’ motion to exclude certain expert and fact
evidence offered by the State.

68
for lawful purposes, such as short-barreled shotguns [and

machineguns]”). Similar to the district court — and unlike the

panel majority — I am far from convinced that the Second

Amendment reaches the AR-15 and other assault weapons prohibited

under Maryland law, given their military-style features,

particular dangerousness, and questionable utility for self-

defense. See Kolbe, 42 F. Supp. 3d at 788 (“Upon review of all

the parties’ evidence, the court seriously doubts that the

banned assault long guns are commonly possessed for lawful

purposes, particularly self-defense in the home, . . . and is

inclined to find the weapons fall outside Second Amendment

protection as dangerous and unusual.”).

That the banned assault weapons are not constitutionally

protected finds considerable support in the record, which

includes the following evidence:

● The AR-15 and other banned assault weapons, like
their military counterparts, “are firearms
designed for the battlefield, for the soldier to
be able to shoot a large number of rounds across
a battlefield at a high rate of speed.” See J.A.
206. The military-style features of those
weapons include folding or telescoping stocks,
pistol grips, flash suppressors, grenade
launchers, night sights, and the ability to
accept detachable magazines and bayonets. Their
design results in “a capability for lethality —
more wounds, more serious, in more victims — far
beyond that of other firearms in general,
including other semiautomatic guns.” See id. at
1121-22.

69
● The sole difference between the M16 and the AR-15
is that the M16 is capable of automatic fire
while the AR-15 is semiautomatic. That
difference is slight, in that automatic firing of
all the ammunition in a thirty-round magazine
takes two seconds, whereas a semiautomatic rifle
can empty the same magazine in about five
seconds. Moreover, soldiers and police officers
are often advised to choose semiautomatic fire,
because it is more accurate and lethal than
automatic fire in many combat and law enforcement
situations.

● The banned assault rifles and shotguns constitute
no more than 3% of the civilian gun stock, and
ownership of such weapons is concentrated in less
than 1% of the U.S. population. At the same
time, assault weapons are used disproportionately
to their ownership in mass shootings and the
murders of police officers, and they cause more
fatalities and injuries than other firearms.

● Maryland was inspired to enact the FSA by the
December 14, 2012 mass shooting at Sandy Hook
Elementary School in Newtown, Connecticut, where
the gunman used an AR-15-style assault rifle to
shoot his way into the locked building and then
murder twenty first-graders and six educators in
less than eleven minutes. That horrific event
was preceded and has been followed by mass
shootings across the nation.

● Criminals armed with the banned assault weapons
possess a “military-style advantage” in
firefights with law enforcement, as such weapons
“allow criminals to effectively engage law
enforcement officers from great distances (far
beyond distances usually involved in civilian
self-defense scenarios),” “are more effective
than handguns against soft body armor,” and
“offer the capacity to fire dozens of highly-
lethal rounds without having to change
magazines.” See J.A. 265.

70
 ● The banned assault weapons also can be more
dangerous to civilians than other firearms. For
example, “rounds from assault weapons have the
ability to easily penetrate most materials used
in standard home construction, car doors, and
similar materials,” and, when they do so, are
more effective than rounds fired from handguns.
See J.A. 279. Additionally, untrained users of
assault weapons tend to fire more rounds than
necessary, increasing the risk to bystanders.

● Although self-defense is a conceivable use of the
banned assault weapons, most people choose to
keep other firearms for self-defense, and
assault-weapon owners generally cite reasons
other than self-defense for owning assault
weapons. There is no known incident of anyone in
Maryland using an assault weapon for self-
defense.

In these circumstances, I am entirely unable to discern a

reasonable basis for saying that, although the M16 is a

dangerous and unusual weapon, the AR-15 and similar arms are

not. As the panel majority would have it, since all firearms

are dangerous, the dangerous-and-unusual standard is really only

concerned with whether a given firearm is unusual, i.e., “not in

common use or typically possessed by the citizenry.” See ante

at 29-30. Pursuant to the majority’s view, because M16s have

long been outlawed while AR-15s have in some places been

allowed, the AR-15 enjoys Second Amendment protection that the

M16 is denied. Accord Friedman v. City of Highland Park, 784

F.3d 406, 416 (7th Cir. 2015) (Manion, J., dissenting) (“In the

case of machine guns, nobody has argued, before or since, that

71
ordinary citizens used these weapons for lawful purposes, and so

they have been rightly deemed not to fall within the ambit of

the Second Amendment. Had there been even a small amount of

citizens who used them for lawful purposes, then the Second

Amendment might have covered them.”).

There are significant problems with the panel majority’s

conception of the dangerous-and-unusual standard. First of all,

even accepting that an “unusual” weapon is one that is not

commonly possessed, “what line separates ‘common’ from

‘uncommon’ ownership is something the [Heller] Court did not

say.” See Friedman, 784 F.3d at 409 (Easterbrook, J., writing

for the court). Moreover,

relying on how common a weapon is at the time of
litigation would be circular . . . . Machine guns
aren’t commonly owned for lawful purposes today
because they are illegal; semi-automatic weapons with
large-capacity magazines are owned more commonly
because, until recently (in some jurisdictions), they
have been legal. Yet it would be absurd to say that
the reason why a particular weapon can be banned is
that there is a statute banning it, so that it isn’t
commonly owned. A law’s existence can’t be the source
of its own constitutional validity.

Id.; see also Br. of Appellees 17 (“Focusing . . . solely on the

number or popularity of firearms owned would make the

constitutionality of a ban dependent on the time at which it was

enacted, with particularly dangerous weapons suddenly becoming

entitled to constitutional protection upon reaching an imaginary

constitutional numerosity threshold, but less dangerous firearms

72
permitted to be forever restricted if banned early enough.”

(internal quotation marks omitted)). It follows that the term

“unusual” most likely does not have the meaning accorded to it

by my colleagues.

Another significant problem with the panel majority’s

conception of the dangerous-and-unusual standard is that it

renders the word “dangerous” superfluous, on the premise that

all firearms are dangerous. In the course of doing so, the

majority rejects the State’s contention that weapons lacking

Second Amendment protection are “unusually dangerous” ones.

More specifically, the majority asserts that the unusually

dangerous benchmark finds no support in Heller and would be too

difficult to apply. But the Heller Court surely had relative

dangerousness in mind when it repudiated Second Amendment

protection for short-barreled shotguns and “weapons that are

most useful in military service — M-16 rifles and the like.”

See Heller, 554 U.S. at 624-25, 627 (internal quotation marks

omitted). Furthermore, the unusually dangerous benchmark is no

more difficult to apply than, for example, the majority’s

dubious test of whether a weapon is “not in common use” and thus

“unusual.”

That is not to say that it is easy to answer the question

of whether the assault weapons prohibited by Maryland’s FSA are

protected by the Second Amendment. Nor is it clear whether the

73
Second Amendment protects the banned large-capacity detachable

magazines, or “LCMs.” 2

The Supreme Court recently declined to expound on those

issues when it denied certiorari in the Seventh Circuit’s

Friedman case. See Friedman v. City of Highland Park, 136 S.

Ct. 447 (2015). Other of the federal courts of appeals have

considered bans similar to Maryland’s, discussed the complexity

of the issue of Second Amendment coverage, and ultimately

assumed — but not decided — that constitutional protection may

be afforded to assault weapons and LCMs. See N.Y. State Rifle &

Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 257 (2d Cir. 2015);

Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir.

2011) (“Heller II”). The district court likewise resolved to

assume without deciding that the FSA “places some burden on the

2 The State proffers two substantial grounds for ruling that
LCMs are unprotected. First, LCMs could be deemed dangerous and
unusual, in view of evidence that, inter alia, they “are
particularly designed and most suitable for military and law
enforcement applications.” See J.A. 891; see also, e.g., Kolbe,
42 F. Supp. 2d at 787-88 (addressing the State’s evidence that
LCMs “can allow a criminal to cause mass casualties, while
depriving victims and law enforcement of an opportunity to
escape or overwhelm an assailant as he reloads his weapon”).
Second, it could be concluded that LCMs are not “arms” within
the meaning of the Second Amendment and thus not eligible for
its protection. See Heller, 554 U.S. at 582 (observing that the
Second Amendment extends to “bearable arms”); Br. of Appellees
26 (“A large-capacity detachable magazine is not an ‘arm’
. . . . Indeed, large-capacity magazines are not even
ammunition, but instead are devices used for feeding ammunition
into firearms that can easily be switched out for other devices
that are of lower capacity . . . .”).

74
Second Amendment right.” See Kolbe, 42 F. Supp. 3d at 789.

Although I am strongly inclined to instead proclaim that the

Second Amendment is not implicated by the FSA, I will, as

explained below, refrain from doing so.

B.

We need not decide today whether the banned assault weapons

and large-capacity detachable magazines are protected by the

Second Amendment, because — following the lead of our colleagues

on the Second and District of Columbia Circuits — we can assume

they are so protected and yet rule that Maryland’s FSA passes

constitutional muster under the highest appropriate level of

scrutiny: that is, the concept of intermediate scrutiny. See

N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 257-64; Heller II,

670 F.3d at 1261-64; see also Kolbe, 42 F. Supp. 3d at 789-97.

Notably, not a single court of appeals has ever — until now —

deemed strict scrutiny to be applicable to a firearms regulation

along the lines of the FSA. 3 Indeed, in the wake of Heller, only

3In affirming the denial of a preliminary injunction in
Fyock v. City of Sunnyvale, the Ninth Circuit concluded that the
district court neither “clearly err[ed] in finding . . . that a
regulation restricting possession of [LCMs] burdens conduct
falling within the scope of the Second Amendment,” nor “abused
its discretion by applying intermediate scrutiny or by finding
that [the regulation] survived intermediate scrutiny.” See 779
F.3d 991, 998 (9th Cir. 2015). Thereafter, in Friedman, the
Seventh Circuit upheld the City of Highland Park’s ban on
assault weapons and LCMs, albeit without applying either
intermediate or strict scrutiny. See 784 F.3d at 410
(Continued)
75
the Sixth Circuit has applied strict scrutiny to any firearms

regulation (there, a prohibition on the possession of firearms

by a person who has been committed to a mental institution), and

that decision was vacated by the court’s grant of rehearing en

banc. See Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 775 F.3d 308

(6th Cir. 2014), vacated, No. 13-1876 (6th Cir. Apr. 21, 2015),

ECF No. 50.

Employing no more than intermediate scrutiny in our

constitutional analysis of the FSA is not only counselled by

decisions of other courts of appeals, it is also entirely

consistent with binding precedent. Puzzlingly, however, the

panel majority deems itself “compelled by” the Supreme Court’s

decisions in Heller and McDonald v. City of Chicago, as well as

our own post-Heller decisions, to apply strict scrutiny. See

ante at 7. Of course, as our good Chief Judge previously

explained, “Heller left open the level of scrutiny applicable to

review a law that burdens conduct protected under the Second

Amendment, other than to indicate that rational-basis review

would not apply in this context.” See United States v. Chester,

(“[I]nstead of trying to decide what level of scrutiny applies,
and how it works, . . . we think it better to ask whether a
regulation bans weapons that were common at the time of
ratification or those that have some reasonable relationship to
the preservation or efficiency of a well regulated militia, and
whether law-abiding citizens retain adequate means of self-
defense.” (internal quotation marks omitted)).

76
628 F.3d 673, 682 (4th Cir. 2010); see also N.Y. State Rifle &

Pistol Ass’n, 804 F.3d at 253 (“The [Heller] Court did imply

that [Second Amendment] challenges are subject to one of ‘the

standards of scrutiny that we have applied to enumerated

constitutional rights,’ though it declined to say which . . . .”

(quoting Heller, 554 U.S. at 628)). McDonald did not amplify

Heller’s analysis, but instead illuminated only “that the Second

Amendment right is fully applicable to the States.” See 561

U.S. 742, 750 (2010). Consequently, neither Heller nor McDonald

can be read to require or demand strict scrutiny in this case.

Furthermore, our post-Heller decisions — particularly

United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), and

Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) — do not

compel an application of strict scrutiny to each and every

restriction on the right of self-defense in the home. According

to the panel majority, Masciandaro “noted” 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,’” ante at 40 (quoting Masciandaro, 638 F.3d at 470),

while Woollard “observ[ed]” that “restrictions on ‘the right to

arm oneself at home’ necessitate[] the application of strict

scrutiny,” id. (quoting Woollard, 712 F.3d at 878). Actually,

however, Masciandaro did not note, it merely “assume[d] that any

law that would burden the ‘fundamental,’ core right of self-

77
defense in the home by a law-abiding citizen would be subject to

strict scrutiny.” See 638 F.3d at 470 (emphasis added). And

Woollard did not observe, it simply described the plaintiffs’

(rejected) 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 712 F.3d at 878; see also

id. at 876 (reiterating that Masciandaro did nothing more than

“‘assume’” that an inside-the-home regulation would be subject

to strict scrutiny (quoting Masciandaro, 638 F.3d at 470)).

Neither Masciandaro nor Woollard purported to, or had reason to,

decide whether strict scrutiny always, or even ever, applies to

regulations burdening the right of self-defense in the home.

Those decisions do not provide even a smattering of support for

the majority’s position on the level-of-scrutiny question.

We are thus left to conduct the analysis spelled out in our

Chester decision for selecting between strict and intermediate

scrutiny. Analogizing the Second Amendment to the First,

Chester explained that “the level of scrutiny we apply depends

on the nature of the conduct being regulated and the degree to

which the challenged law burdens the right.” See 628 F.3d at

682. Here, too, I part ways with the panel majority. Although

I assume that the FSA implicates the “core protection” of the

Second Amendment — “the right of law-abiding, responsible

78
citizens to use arms in defense of hearth and home,” see Heller,

554 U.S. at 634-35 — I simply cannot agree that the FSA

sufficiently burdens that right to elicit strict scrutiny.

Contrary to the panel majority, the FSA does not, in

banning certain assault weapons and detachable magazines,

prohibit “an entire category of weaponry.” See ante at 36. Nor

“might [the FSA] be ‘equivalent to a ban on a category of

speech.’” See id. at 37 (quoting Heller II, 670 F.3d at 1285

(Kavanaugh, J., dissenting)). To support its theory, the

majority carves out the popular AR-15 and its copies as “an

entire class of semi-automatic rifles.” See id. at 36 n.11.

But, of course, a ban on one type of semi-automatic rifle does

not equate to a prohibition on “an entire category of weaponry”

in the same sense that, using the Heller example, a blanket ban

on all handguns does. That fact — that the FSA does “not ban

‘an entire class of arms’” — renders “the restrictions

substantially less burdensome.” See N.Y. State Rifle & Pistol

Ass’n, 804 F.3d at 260 (quoting Heller, 554 U.S. at 628).

Moreover, despite what the panel majority says, it does

matter that the FSA leaves handguns, as well as nonautomatic and

some semiautomatic long guns, available for self-defense in the

home. According to the majority, Heller “rejected essentially

the same argument” when it dismissed the contention “‘that it is

permissible to ban the possession of handguns so long as the

79
possession of other firearms (i.e., long guns) is allowed.’”

See ante at 37-38 (quoting Heller, 554 U.S. at 629). The

majority’s equation of this case and Heller is wholly untenable,

because it depends on discounting the relevance of the handgun’s

status as “the quintessential self-defense weapon” — a status

that was obviously and unquestionably important to the Supreme

Court. See Heller, 554 U.S. at 628-29 (emphasizing that

handguns are “overwhelmingly chosen by American society for

[self-defense]”). To be sure, a ban on the possession of

handguns is far more burdensome on the right of self-defense in

the home than a prohibition on the possession of AR-15s and

similar arms.

At bottom, I agree with the Second and District of Columbia

Circuits “that ‘the prohibition of semi-automatic rifles and

large-capacity magazines does not effectively disarm individuals

or substantially affect their ability to defend themselves.’

The burden imposed by the challenged legislation is real, but it

is not ‘severe.’” See N.Y. State Rifle & Pistol Ass’n, 804 F.3d

at 260 (quoting Heller II, 670 F.3d at 1262). Accordingly, I

would apply intermediate scrutiny and, in an analysis like that

of the district court, uphold Maryland’s FSA as constitutional,

in that it is reasonably adapted to a substantial government

interest. See Kolbe, 42 F. Supp. 3d at 791-97 (concluding,

inter alia, “that the ban on assault weapons is likely to

80
further the government’s interest in protecting public safety by

removing weapons that cause greater harm when used — to both

civilians and police — and create greater obstacles for law

enforcement in stopping and detaining criminals who are using

them”). Simply put, the State has shown all that should be

required: a reasonable, if not perfect, fit between the FSA and

Maryland’s substantial interest in protecting the public safety

and deterring criminal activity.

II.

To their credit, my colleagues declare their rejection of

the Plaintiffs’ contention that, “once we determine that the

prohibited firearms fall within the protective ambit of the

Second Amendment, the [FSA] is unconstitutional and our analysis

is at an end.” See ante at 32 n.9. I fear, however, that by

liberally extending constitutional protection to unusually

dangerous arms and then decreeing strict scrutiny applicable to

every ban on law-abiding citizens’ in-home possession of

protected weapons, the panel majority has guaranteed the demise

of the FSA and other sensible gun-control measures within this

Circuit. After all, though strict scrutiny may not be “strict

in theory, but fatal in fact,” see Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 237 (1995), it is at least “the most

demanding test known to constitutional law,” see City of Boerne

v. Flores, 521 U.S. 507, 534 (1997).

81
 This grave matter calls to mind the thoughtful words of our

esteemed colleague Judge Wilkinson, recognizing in Masciandaro

the “serious business” of adjudicating the Second Amendment’s

breadth: “We do not wish to be even minutely responsible for

some unspeakably tragic act of mayhem because in the peace of

our judicial chambers we miscalculated as to Second Amendment

rights.” See 638 F.3d at 475. To put it mildly, it troubles me

that, by imprudently and unnecessarily breaking from our sister

courts of appeals and ordering strict scrutiny here, we are

impeding Maryland’s and others’ reasonable efforts to prevent

the next Newtown — or Virginia Tech, or Binghamton, or Fort

Hood, or Tucson, or Aurora, or Oak Creek, or San Bernardino. In

my view, any burden imposed by the FSA on the Second Amendment

is far from severe. On the other hand, the State’s paramount

interest in the protection of its citizenry and the public

safety is profound indeed. Unfortunately, however, I find

myself outvoted today.

In these circumstances, and because I strongly agree with

the excellent decision of our distinguished district court

colleague upholding the constitutionality of the FSA, I

wholeheartedly dissent.

82
TRAXLER, Chief Judge, wrote a dissenting opinion as to Part IV:

Plaintiffs contend that the FSA violates the Equal

Protection Clause by creating an exception for retired law

enforcement officers allowing them to acquire and possess banned

firearms and LCMs. Unlike other citizens, retired officers are

permitted under the Act to receive these weapons upon

retirement. See Md. Code, Crim. Law §§ 4-302(7)(i), 4-

305(a)(2). Plaintiffs argue that Maryland arbitrarily and

irrationally grants a privilege to retired law enforcement

officers that it denies to them and other similarly situated

citizens.

The Equal Protection Clause provides that “[n]o State shall

. . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1. The

Equal Protection Clause “keeps governmental decisionmakers from

treating differently persons who are in all relevant respects

alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The Clause,

however, “does not take from the States all power of

classification,” Personnel Adm’r v. Feeney, 442 U.S. 256, 271

(1979); “[l]awmaking by its nature requires that legislatures

classify, and classifications by their nature advantage some and

disadvantage others.” Helton v. Hunt, 330 F.3d 242, 245 (4th

Cir. 2003). Since “classification is the very essence of the

art of legislation,” a challenged classification is “presumed to

83
be constitutional under the equal protection clause.” Moss v.

Clark, 886 F.2d 686, 689 (4th Cir. 1989). To survive a

constitutional challenge under the Equal Protection Clause, the

classification in question “need only be rationally related to a

legitimate state interest unless it violates a fundamental right

or is drawn upon a suspect classification such as race,

religion, or gender.” Giarratano v. Johnson, 521 F.3d 298, 303

(4th Cir. 2008).

Plaintiffs do not suggest that we are presented with a

suspect classification or a classification that impinges upon

fundamental rights. Therefore, rational-basis scrutiny applies

to determine whether the exception for retired law enforcement

officers to possess prohibited semi-automatic rifles and

magazines comports with Equal Protection.

An equal protection plaintiff first must “demonstrate that

he has been treated differently from others with whom he is

similarly situated and that the unequal treatment was the result

of intentional or purposeful discrimination.” Morrison v.

Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). To be “similarly

situated” means to be “similar in all aspects relevant to

attaining the legitimate objectives of legislation.” Van Der

Linde Housing, Inc. v. Rivanna Solid Waste Auth., 507 F.3d 290,

293 (4th Cir. 2007) (emphasis added). “Once this showing is

made, the court proceeds to determine whether the disparity in

84
treatment can be justified under the requisite level of

scrutiny.” Morrison, 239 F.3d at 654; see e.g., City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-40

(1985).

In rejecting the equal protection claim, the district court

proceeded no further than the threshold question of whether

retired law enforcement officers in Maryland are similarly

situated to law-abiding citizens who wish to possess weapons

prohibited by the FSA. The district court concluded that

retired law enforcement officers as a class are not similarly

situated to the citizenry at large because of their firearms

training and experience. The district court noted that officers

who carry firearms are required to receive continuing classroom

instruction, complete firearms training and qualify periodically

with their firearms; that officers are trained how to store

firearms and ammunition safely in the home; and that law

enforcement officers, by virtue of their duty and authority to

protect public safety by use of force if need be, are more

experienced in the handling of firearms. Additionally, those

officers who use one of the prohibited weapons during the course

of duty are required to have received specialized training and

instruction on these weapons.

Plaintiffs respond that retired officers have varying

levels of training on these weapons, noting that most officers

85
in fact do not have specialized training on a prohibited weapon

during their employment and the FSA does not require retired

officers who obtain prohibited weapons under the exception to

have specialized training. Plaintiffs suggest that the training

and experience thus does not differentiate retired officers in

Maryland from Plaintiffs or other individuals, some of whom are

trained on the handling of semi-automatic rifles and some of

whom are not. Maryland believes the general firearms training

received by all law enforcement officers while on the job is

sufficient to set them apart as a class from ordinary citizens.

Plaintiffs urge us to follow Silveira v. Lockyer, 312 F.3d

1052 (9th Cir. 2002), abrogated on other grounds, District of

Columbia v. Heller, 554 U.S. 570 (2008), * in which the Ninth

Circuit invalidated a similar statutory provision under the

Equal Protection Clause. I find this case instructive. In

Silveira, the plaintiffs raised an equal protection challenge to

a California statute banning “assault weapons” but “allowing the

possession of assault weapons by retired peace officers who

acquire them from their employers at the time of their

retirement.” Id. at 1059. California’s law also contained an

* Silveira v. Lockyer reaffirmed the Ninth’s Circuit
position at the time that the Second Amendment does not confer
an individual right to bear arms. See 312 F.3d 1052, 1060-61
(9th Cir. 2002). The Supreme Court, of course, rejected this
view in District of Columbia v. Heller, 554 U.S. 570, 592
(2008).

86
exception for active off-duty officers to use assault weapons

“only for law enforcement purposes.” Id. at 1089 (internal

quotation marks omitted). The court concluded that the

exception for off-duty officers passed muster because it was

rationally related to the statutory objective of preserving

public safety:

We presume that off-duty officers may find
themselves compelled to perform law enforcement
functions in various circumstances, and that in
addition it may be necessary that they have their
weapons readily available. Thus, the provision is
designed to further the very objective of preserving
the public safety that underlies the [statute].

Id. By contrast, the court “discern[ed] no legitimate state

interest in permitting retired peace officers to possess and use

[assault weapons] for their personal pleasure” while denying it

to others. Id. at 1091 (emphasis added). The court explained

that because the retired officer exception “does not require

that the transfer [of the weapon to the officer upon retirement]

be for law enforcement purposes, and the possession and use of

the weapons is not so limited,” the exception bears no rational

relationship and in fact is “directly contrary to the act’s

basic purpose of eliminating the availability of . . . military-

style weapons and thereby protecting the people of California

from the scourge of gun violence.” Id. at 1090.

The Ninth Circuit did not explicitly address the threshold

question of whether the plaintiffs and retired law enforcement

87
officers were similarly situated; however, the court rejected

the notion that retired officers should be allowed to possess

assault weapons for non-law enforcement purposes simply because

they “receive more extensive training regarding the use of

firearms than do members of the public.” Id. at 1091. As the

Ninth Circuit explained, “[t]his justification . . . bears no

reasonable relationship to the stated legislative purpose of

banning the possession and use of assault weapons in California

. . . . The object of the statute is not to ensure that assault

weapons are owned by those most skilled in their use; rather, it

is to eliminate the availability of the weapons generally.” Id.

The district court is likely correct that law enforcement

officers receive greater firearms training and have more

experience in the handling of firearms than an ordinary citizen

and, in that respect, are not “similarly situated” to

individuals who are not permitted to possess firearms banned

under the Act. But, in my view, these differences are not

“relevant to attaining the legitimate objectives of

legislation.” Van Der Linde Housing, 507 F.3d at 293.

Maryland’s Act was passed as part of “a comprehensive effort to

promote public safety and save lives.” Brief of Appellees at 9.

Like the Ninth Circuit in Silveira, I see the general firearms

training a retired officer received while on active police duty

as having only attenuated relevance to an overarching objective

88
of the FSA—to preserve the safety of the public. A retired

officer has no greater responsibility or authority than an

ordinary citizen to protect the general public. I cannot

discern how a retired officer’s ability to wield a semi-

automatic weapon with great adeptness for his personal use would

promote public safety through the elimination of semi-automatic

rifles like the AR-15. See Silveira, 312 F.3d at 1091 (“The

object of the statute is not to ensure that assault weapons are

owned by those most skilled in their use; rather, it is to

eliminate the availability of the weapons generally.”). For

purposes of this particular provision, I conclude that retired

law enforcement officers who are no longer charged with

protecting the public are similarly situated to Plaintiffs who

also wish to possess the prohibited weapons for personal uses

such as self-defense.

Therefore, the only remaining question is “whether the

disparity in treatment can be justified under the requisite

level of scrutiny.” Morrison, 239 F.3d at 654. In this case,

the requisite level of scrutiny is rational basis review. This

is hardly an imposing barrier for a statute to surmount.

Nonetheless, I think the best course, especially in light of our

decision to remand the Second Amendment claim for the

application of strict scrutiny review, is to remand the equal

protection claim as well for reconsideration in light of this

89
opinion. The parties on appeal focused their arguments on

whether citizens like Plaintiffs and retired law enforcement

officers are “similarly situated.” I would remand and havethe

parties focus on whether the FSA’s exception permitting retired

law enforcement personnel to possess semi-automatic rifles and

LCMs can be justified.

90