Gould v. Morgan

United States Court of Appeals
For the First Circuit

No. 17-2202

MICHAEL GOULD, et al.,

Plaintiffs, Appellants,

v.

MARK MORGAN, in his Official Capacity as Acting Chief of the
Brookline Police Department; WILLIAM G. GROSS, in his Official
Capacity as Commissioner of the Boston Police Department; and
COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL,

Defendants, Appellees.

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

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Thompson, Selya, and Kayatta,
Circuit Judges.

David H. Thompson, with whom Peter A. Patterson, John D.
Ohlendorf, Cooper & Kirk, PLLC, David D. Jensen, and David Jensen
PLLC were on brief, for appellants.
Stephen P. Halbrook, John Parker Sweeney, James W. Porter,
III, T. Sky Woodward, and Bradley Arant Boult Cummings LLP on brief
for National Rifle Association of America, Inc., amicus curiae.


Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Commissioner William G. Gross has been substituted for former
Commissioner William B. Evans as respondent.
 Mark Brnovich, Attorney General of Arizona, Oramel H. (O.H.)
Skinner, Chief of Government Accountability & Special Litigation,
Dominic E. Draye, Solicitor General, and Angela Kebric Paton,
Assistant Solicitor General, Arizona Attorney General's Office, on
brief for states of Arizona, Alabama, Arkansas, Georgia, Idaho,
Indiana, Louisiana, Michigan, Missouri, Montana, Nebraska,
Oklahoma, South Carolina, South Dakota, Texas, Utah, West
Virginia, Wisconsin, and Wyoming, amici curiae.
Matthew M. McGarry, Assistant Corporation Counsel, City of
Boston Law Department, with whom Peter M. Geraghty, Assistant
Corporation Counsel, Office of Legal Advisor, Boston Police
Department, was on brief, for appellee Evans.
Jonathan E. Taylor, with whom John Buchheit, Office of Town
Counsel, Deepak Gupta, and Gupta Wessler PLLC were on brief, for
appellee Morgan.
Timothy J. Casey, Assistant Attorney General, Government
Bureau, with whom Maura Healey, Attorney General, was on brief,
for appellee Massachusetts Office of the Attorney General.
Gurbir S. Grewal, Attorney General of New Jersey, Andrew J.
Bruck, Executive Assistant Attorney General, Jeremy M. Feigenbaum,
Assistant Attorney General, Claudia Joy DeMitro and Adam D. Klein,
Deputy Attorneys General, on brief, for states of New Jersey,
California, Connecticut, Delaware, Hawaii, Illinois, Iowa,
Maryland, New York, Rhode Island, and Virginia, and District of
Columbia, amici curiae.
E. Ross Cohen, Mark C. Fleming, Tasha J. Bahal, and Wilmer
Cutler Pickering Hale and Dorr LLP on brief for Everytown for Gun
Safety, amicus curiae.
Ira M. Feinberg, Shaun M. Donnelly, and Hogan Lovells US LLP
on brief for various Professors of History and Constitutional Law,
amici curiae.
Simon J. Frankel, Nandini Singh, Allison M. Whelan, Covington
& Burling LLP, J. Adam Skaggs, and Hannah Shearer on brief for
Giffords Law Center to Prevent Gun Violence, amicus curiae.
Antonio J. Perez-Marques, David B. Toscano, Kevin Osowski,
Sushila Rao, Anne Burton-Walsh, and Davis Polk & Wardwell LLP for
Prosecutors Against Gun Violence, amicus curiae.

November 2, 2018
 SELYA, Circuit Judge. This case involves a

constitutional challenge to the Massachusetts firearms licensing

statute, as implemented in the communities of Boston and Brookline.

All of the individual plaintiffs sought and received licenses from

one of those two communities to carry firearms in public. The

licenses, though, were restricted: they allowed the plaintiffs to

carry firearms only in relation to certain specified activities

but denied them the right to carry firearms more generally.

The plaintiffs say that the Massachusetts firearms

licensing statute, as implemented in Boston and Brookline,

violates the Second Amendment. The district court disagreed, and

so do we. Mindful that "the right secured by the Second Amendment

is not unlimited," District of Columbia v. Heller, 554 U.S. 570,

626 (2008), we hold that the challenged regime bears a substantial

relationship to important governmental interests in promoting

public safety and crime prevention without offending the

plaintiffs' Second Amendment rights. Accordingly, we affirm the

district court's entry of summary judgment for the defendants. In

the last analysis, the plaintiffs simply do not have the right "to

carry arms for any sort of confrontation" or "for whatever purpose"

they may choose. Id. at 595, 626 (emphasis omitted).

I. BACKGROUND

We start by rehearsing the applicable statutory and

regulatory scheme and then recount the travel of the case. In

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Massachusetts, carrying a firearm in public without a license is

a crime. See Mass. Gen. Laws ch. 269, § 10(a); see also Hightower

v. City of Bos., 693 F.3d 61, 65 (1st Cir. 2012). The Massachusetts

firearms licensing statute "is part of a large regulatory scheme

to promote the public safety." Commonwealth v. Davis, 343 N.E.2d

847, 849 (Mass. 1976). Under its current incarnation, Mass. Gen.

Laws ch. 140, § 131, an individual may request a license to carry

a firearm in public by submitting an application to the appropriate

licensing authority, which is defined as either the applicant's

local "chief of police or the board or officer having control of

the police in a city or town, or persons authorized by them." Id.

§ 121; see § 131(d). Such a license allows the holder to:

purchase, rent, lease, borrow, possess and
carry: (i) firearms, including large capacity
firearms, and feeding devices and ammunition
therefor, for all lawful purposes, subject to
such restrictions relative to the possession,
use or carrying of firearms as the licensing
authority deems proper; and (ii) rifles and
shotguns, including large capacity weapons,
and feeding devices and ammunition therefor,
for all lawful purposes; provided, however,
that the licensing authority may impose such
restrictions relative to the possession, use
or carrying of large capacity rifles and
shotguns as it deems proper.

Id. § 131(a). For this purpose, a firearm is defined as "a stun

gun or a pistol, revolver or other weapon of any description,

loaded or unloaded, from which a shot or bullet can be discharged

and of which the length of the barrel or barrels is less than 16

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inches or 18 inches in the case of a shotgun as originally

manufactured." Id. § 121.

The Massachusetts statute describes the circumstances in

which a license to carry may be granted, denied, revoked, or

restricted to particular uses. See id. § 131. Pertinently, a

local licensing authority "may issue [a license] if it appears

that the applicant is not a prohibited person . . . and that the

applicant has good reason to fear injury . . . or for any other

reason, including the carrying of firearms for use in sport or

target practice only." Id. § 131(d). An applicant is a

"prohibited person" if the licensing authority determines, inter

alia, that he is a convicted felon, that he is younger than twenty-

one years of age, or that he is otherwise unsuitable (by reason

of, say, mental illness or involvement in domestic violence) to

receive a license to carry. Id.; see generally Chief of Police of

Worcester v. Holden, 26 N.E.3d 715, 724 (Mass. 2015) (discussing

"suitable person" standard).

Once the licensing authority satisfies itself that the

applicant is not a prohibited person, it may issue a license to

carry as long as "the applicant can demonstrate a 'proper purpose'

for carrying a firearm." Ruggiero v. Police Comm'r of Bos., 464

N.E.2d 104, 107 (Mass. App. Ct. 1984). Refined to bare essence,

the statute identifies two pillars upon which the granting of a

license to carry may rest: (1) good reason to fear injury, and

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(2) other reasons (such as sport or target practice). See id.

Municipalities differ in their requirements for an applicant to

establish eligibility based on the first pillar. Boston and

Brookline have both promulgated policies requiring that an

applicant furnish some information to distinguish his own need for

self-defense from that of the general public. This requirement —

which is the focal point of the plaintiffs' challenge — means that

the applicant must identify a specific need, that is, a need above

and beyond a generalized desire to be safe. Cf. id. at 108 (finding

insufficient applicant's statement that he had no intention of

"spend[ing] his entire life behind locked doors [and was] a

potential victim of crimes against his person").

An applicant who does not demonstrate a good reason to

fear injury either to himself or to his property may still receive

a license to carry a firearm; subject, however, to such

restrictions as the licensing authority deems meet. See Mass.

Gen. Laws ch. 140, § 131(a), (d). The statutory scheme vests in

the licensing authority discretion to decide, on a case-by-case

basis, whether and to what extent a restricted license should be

issued. See id. Under this arrangement, a licensing authority

may issue a restricted license that permits the carrying of a

firearm only when the applicant is engaged in the particular

activities specified in his application. See Ruggiero, 464 N.E.2d

at 107 & n.5.

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 Not all communities offer the same types of restricted

licenses. Boston offers licenses restricted to employment,

hunting and target practice, or sport. For its part, Brookline

offers licenses subject to restrictions for employment, hunting,

target practice, sport, transport, domestic (use only in and around

one's home), or collecting. A license restricted to employment

allows the licensee to carry a firearm for all employment-related

purposes, that is, while working and while traveling to and from

work. A license restricted to hunting allows the licensee to carry

a firearm for lawful hunting of game and fowl. Similarly, a

license restricted to sport allows the licensee to carry a firearm

while partaking in hunting, target practice, and a wide variety of

outdoor recreational activities (such as hiking, camping, and

cross-country skiing).

In Boston, slightly more than forty percent of all

licenses are issued without restrictions of any kind. In

Brookline, the number shrinks to approximately thirty-five

percent.1 Every such license (whether or not restricted) permits

the licensee to keep and carry firearms for personal protection in

the home.

1 Boston and Brookline are not the only communities that make
prolific use of restricted licenses. In 2015, fourteen communities
(including Springfield, Lowell, New Bedford, Newton, and Medford)
imposed restrictions on more than half of the licenses that they
issued. Eleven other communities imposed restrictions on more
than one-third of the licenses that they issued.

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 Once issued, a license may be revoked or suspended "upon

the occurrence of any event that would have disqualified the holder

from being issued such license or from having such license renewed"

or "if it appears that the holder is no longer a suitable person

to possess such license." Mass. Gen. Laws ch. 140, § 131(f). Any

person "aggrieved by a denial, revocation, suspension or

restriction placed on a license" may seek judicial review. Id.;

see Hightower, 693 F.3d at 67. Such redress must be sought within

ninety days when challenging a denial, revocation, or suspension.

See Mass. Gen. Laws ch. 140, § 131(f). In contrast, judicial

review may be sought at "any time" when challenging a restriction.

Id.

Against this backdrop, we turn to the particulars of the

case at hand. The individual plaintiffs (none of whom is a

prohibited person) all reside in either Boston or Brookline. In

each community, the local licensing authority is the chief of

police.

For present purposes, the firearms licensing policies of

the two communities are not materially different. Both police

departments review applications for firearms licenses

individually, giving careful attention to each applicant and to

his stated reasons for wanting a license. Each police chief has

promulgated a policy to the effect that a generalized desire to

carry a firearm for self-defense, without more, will not constitute

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"good reason" sufficient to warrant the issuance of an unrestricted

license. Instead, Boston and Brookline require an applicant to

articulate a reason to fear injury to himself or his property that

distinguishes him from the general population. Applicants who are

employed in certain vocations (specifically, physicians,

attorneys, and police officers) are more likely to be granted

unrestricted licenses in both communities.2

The individual plaintiffs all sought and obtained

licenses to carry firearms, but those licenses were issued with a

variety of restrictions:

 Plaintiff Michael Gould is a professional

photographer who lives in Brookline. In 2014, the

Brookline Police Department granted him a license

to carry firearms, restricted to employment and

sport. These restrictions allow him to carry

firearms on his person at home and whenever he is

working with his high-priced photography equipment

or when engaged in a range of recreational

activities.

 Plaintiffs Christopher Hart, John Stanton, Danny

Weng, and Sarah Zesch live in Boston. Each of them

2 Boston (but not Brookline) also will grant unrestricted
licenses to applicants who already have been issued unrestricted
licenses by some other community in Massachusetts.

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 applied for an unrestricted firearms license but

received a restricted license (containing hunting

and target-practice restrictions).

The complaint alleges that each of the individual plaintiffs seeks

an unrestricted license to carry firearms in public for the purpose

of self-defense.

The individual plaintiffs are joined by plaintiff

Commonwealth Second Amendment, Inc. (Comm2A), a non-profit

organization dedicated to advancing the right to keep and bear

arms. All of the individual plaintiffs are members of Comm2A.

Although all of the individual plaintiffs wish to have

unrestricted firearms licenses for personal protection, none of

them has tried to show that his or her fear of injury is in any

way distinct from that of the general population. Thus, none of

them has been able to satisfy Boston's or Brookline's "good reason"

standard.

Invoking 42 U.S.C. § 1983, the plaintiffs brought suit

in the United States District Court for the District of

Massachusetts against the chiefs of police of Boston and Brookline.

They alleged that these officials, acting under color of state

law, infringed their Second Amendment rights. To remedy this

infringement, the plaintiffs sought a declaration that the

Massachusetts firearms licensing statute, as administered in

Boston and Brookline, transgressed the Second Amendment by

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allowing licensing authorities to deny unrestricted licenses to

otherwise qualified individuals who lack a particularized reason

to fear injury. See 28 U.S.C. §§ 2201, 2202. They also sought

injunctive relief directing the defendants to remove all

restrictions from the licenses held by the individual plaintiffs

and barring the defendants from issuing restricted licenses in the

future.

On motion, the district court allowed the Office of the

Attorney General of the Commonwealth of Massachusetts to join the

fray as an intervenor-defendant. See Fed. R. Civ. P. 24(a)(1).

After the close of discovery, the parties cross-moved for summary

judgment. The district court, in a thoughtful rescript, granted

summary judgment for the defendants. See Gould v. O'Leary, 291 F.

Supp. 3d 155, 174 (D. Mass. 2017). In its ruling, the district

court first assumed (without deciding) that the challenged

statutory and regulatory scheme burdened the Second Amendment

right to bear arms. See id. at 169. Next, it determined that

intermediate scrutiny comprised the appropriate lens through which

to view the constitutionality of the challenged law. See id. at

170. Finally, the court concluded that the challenged statutory

and regulatory scheme passed intermediate scrutiny: it bore a

substantial relationship to the important governmental interests

of promoting public safety and preventing crime. See id. at 173.

In reaching this conclusion, the court ceded some deference to the

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predictive judgments of the legislature "regarding matters that

are beyond the competence of" courts. Id. at 171 (quoting

Kachalsky v. Cty. of Westchester, 701 F.3d 81, 97 (2d Cir. 2012)).

This timely appeal ensued. The parties have filed

exemplary briefs, and those submissions have been supplemented by

a myriad of helpful amicus briefs.

II. FRAMING THE ISSUE

Before plunging into the merits of the plaintiffs'

claims, we pause for some additional stage-setting. To begin, we

note that the plaintiffs' appeal hinges on the answers to two

central questions: Does the Second Amendment protect the right to

carry a firearm outside the home for self-defense? And if they

prevail on that question, may the government condition the exercise

of the right to bear arms on a showing that a citizen has a "good

reason" (beyond a generalized desire for self-defense) for

carrying a firearm outside the home? Undergirding the plaintiffs'

proposed answers to these questions is their claim that the manner

in which Boston and Brookline have interpreted the Massachusetts

"good reason" requirement offends the Second Amendment.

Importantly, though, the plaintiffs do not challenge the

Massachusetts firearms licensing statute as a whole, nor do they

challenge the Commonwealth's requirement that an individual must

have a license to carry firearms in public.

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 Because the plaintiffs' appeal is based exclusively upon

the Second Amendment, our analysis follows suit. Consequently, we

do not consider — let alone foreclose — any other potential

challenges to the manner in which Boston and Brookline have chosen

to exercise their discretion under the Massachusetts firearms

licensing statute. By the same token, even though we recognize

that the majority of Massachusetts communities have firearms

licensing policies that are more permissive than those adopted in

Boston and Brookline, we do not regard those policies as relevant

to our analysis.

Next, we think it is useful to draw a distinction between

two types of firearms licensing regulations. Location-based

regulations limit where firearms may be carried. In contrast,

applicant-based regulations identify prohibited persons (such as

felons) who may be barred from carrying firearms anywhere. The

policies at issue here fall into the former category. Thus, we do

not pass upon the validity of "prohibited person" regulations.

After all, the plaintiffs have not challenged the Commonwealth's

requirement, followed fastidiously in Boston and Brookline, that

a license to carry firearms may be issued only to a suitable

person.

Finally, we deem it helpful to offer a glossary of sorts,

defining certain terms as those terms are used in this opinion.

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 When we say the "Massachusetts statute," we mean

(unless otherwise indicated) the "good reason"

requirement of the Massachusetts firearms licensing

statute.

 When we refer to the "Boston and Brookline

policies," we mean the administration and

implementation of the "good reason" requirement by

those two municipalities.

 When we say "firearm," we mean a conventional

handgun. See Mass. Gen. Laws ch. 140, § 121

(defining "firearm" as "a stun gun or a pistol,

revolver or other weapon of any description, loaded

or unloaded, from which a shot or bullet can be

discharged and of which the length of the barrel or

barrels is less than 16 inches or 18 inches in the

case of a shotgun as originally manufactured"). We

do not use this term to refer to assault weapons,

which have a separate definition under

Massachusetts law. See id.

 When we say in "public," we mean outside of one's

home, excluding "sensitive places such as schools

and government buildings," where the Supreme Court

has cautioned that the regulation of firearms is

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 "presumptively lawful." Heller, 554 U.S. at 626-

27 & n.26.

 The terms "carry" and "carriage" refer to

"wear[ing], bear[ing], or carry[ing]" a firearm

"upon the person or in the clothing or in a pocket,

for the purpose . . . of being armed and ready for

offensive or defensive action in a case of conflict

with another person." Id. at 584 (quoting

Muscarello v. United States, 524 U.S. 125, 143

(1998) (Ginsburg, J., dissenting)). Unless

otherwise specified, we use these terms to include

both open and concealed carriage. We caution,

however, that laws restricting concealed carriage

alone may call for a somewhat different analysis.

See Hightower, 693 F.3d at 73-74 (finding

"[l]icensing of the carrying of concealed weapons"

to be "presumptively lawful").

III. ANALYSIS

The plaintiffs mount two principal claims of error.

First, they contend that the right to carry firearms in public for

self-defense lies at the core of the Second Amendment and, thus,

admits of no regulation. Second, they contend that the Boston and

Brookline policies fail under any level of scrutiny that might

arguably apply. We approach these claims of error mindful that

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our review of the district court's entry of summary judgment is de

novo. See id. at 70; see also Watchtower Bible & Tract Soc'y of

N.Y., Inc. v. Sagardía de Jesús, 634 F.3d 3, 10 (1st Cir. 2011)

(reviewing constitutional challenge to state law de novo). This

standard is unchanged where, as here, an appeal follows the

district court's disposition of cross-motions for summary

judgment. See Blackie v. Maine, 75 F.3d 716, 720-21 (1st Cir.

1996). The task at hand is simplified by the parties' agreement

that there are no genuine issues of material fact and that the

critical constitutional questions are purely legal inquiries.

A. Legal Framework.

The Second Amendment 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." U.S.

Const. amend. II. For over two centuries, the Supreme Court said

very little either about the meaning of these words or about the

scope of the guaranteed right. In 2008, though, the Court made

pellucid that the Second Amendment protects the right of an

individual to keep and bear arms (unconnected to service in the

militia). See Heller, 554 U.S. at 592. Two years later, the Court

confirmed that the Second Amendment applies with full force to the

states through the Fourteenth Amendment. See McDonald v. City of

Chicago, 561 U.S. 742, 784-85 (2010).

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 These decisions merely scratched the surface: they did

not provide much clarity as to how Second Amendment claims should

be analyzed in future cases. In Heller, for example, the Court

considered the District of Columbia's near-complete ban on keeping

operable handguns in the home. See 554 U.S. at 574-75. The Court

concluded that this law infringed "the right of law-abiding,

responsible citizens to use arms in defense of hearth and home" —

an interest that the Court described as "elevate[d] above all other

[Second Amendment] interests." Id. at 635. The Court observed

that "[f]ew laws in the history of our Nation have come close to

the severe restriction of the District's handgun ban." Id. at

629. Starting from this premise, the Court decided that the

challenged law was so restrictive of the Second Amendment right

that it would fail to pass muster "[u]nder any of the standards of

scrutiny that we have applied to enumerated constitutional

rights." Id. at 628-29.

In the plaintiffs' view, it follows directly from Heller

that the Second Amendment guarantees them an unconditional right

to carry firearms in public for self-defense. On this basis, they

urge us to find that the Boston and Brookline policies are

unconstitutional. We are not so sanguine: Heller simply does not

provide a categorical answer to whether the challenged policies

violate the Constitution. Put another way, nothing in Heller

"impugn[s] legislative designs that comprise . . . public welfare

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regulations aimed at addressing perceived inherent dangers and

risks surrounding the public possession of loaded, operable

firearms." Powell v. Tompkins, 783 F.3d 332, 346 (1st Cir. 2015).

This conclusion is reinforced by McDonald — a case in which the

Court plainly read Heller in this way, observing that Heller "does

not imperil every law regulating firearms." 561 U.S. at 786.

Indeed, Heller itself made precisely this point. The

majority opinion there stated that "[l]ike most rights, the right

secured by the Second Amendment is not unlimited" and thus does

not protect "a right to keep and carry any weapon whatsoever in

any manner whatsoever and for whatever purpose" or "for any sort

of confrontation." 554 U.S. at 595, 626 (emphasis omitted). The

Court went on to provide a non-exhaustive list of "presumptively

lawful regulatory measures," including "longstanding prohibitions

on the possession of firearms by felons and the mentally ill,"

"laws forbidding the carrying of firearms in sensitive places such

as schools and government buildings," and "laws imposing

conditions and qualifications on the commercial sale of arms."

Id. at 626-27 & n.26.

Even so, the Heller Court never presumed "to clarify the

entire field" of permissible Second Amendment regulation. Id. at

635. Of particular pertinence for present purposes, Heller was

silent about both "the scope of [the Second Amendment] right beyond

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the home and the standards for determining when and how the right

can be regulated by a government." Kachalsky, 701 F.3d at 89.

In the decade since Heller was decided, courts have

adopted a two-step approach for analyzing claims that a statute,

ordinance, or regulation infringes the Second Amendment right.

See, e.g., Young v. Hawaii, 896 F.3d 1044, 1051 (9th Cir. 2018);

Drake v. Filko, 724 F.3d 426, 429 (3d Cir. 2013); Woollard v.

Gallagher, 712 F.3d 865, 874-75 (4th Cir. 2013); Nat'l Rifle Ass'n

of Am., Inc. v. Bureau of ATFE (NRA), 700 F.3d 185, 194 (5th Cir.

2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012);

Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252

(D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 701-04

(7th Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01 (10th

Cir. 2010); see also Powell, 783 F.3d at 347 n.9. Under this

approach, the court first asks whether the challenged law burdens

conduct that falls within the scope of the Second Amendment's

guarantee. See NRA, 700 F.3d at 194. This is a backward-looking

inquiry, which seeks to determine whether the regulated conduct

"was understood to be within the scope of the right at the time of

ratification." United States v. Chester, 628 F.3d 673, 680 (4th

Cir. 2010). Because the challenge here is directed at a state

law, the pertinent point in time would be 1868 (when the Fourteenth

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Amendment was ratified).3 See Greeno, 679 F.3d at 518. If the

challenged law imposes no such burden, it is valid. If, however,

it burdens conduct falling within the scope of the Second

Amendment, the court then must determine what level of scrutiny is

appropriate and must proceed to decide whether the challenged law

survives that level of scrutiny. See Drake, 724 F.3d at 429;

Woollard, 712 F.3d at 875.

Although we have not yet explicitly adopted this two-

step approach,4 we do so today. This approach results in a workable

framework, consistent with Heller, for evaluating whether a

challenged law infringes Second Amendment rights.

B. Scope of Second Amendment Right.

The framework requires that we start by pondering

"whether the conduct at issue was understood to be within the scope

3This date contrasts with the date of ratification of the
Second Amendment itself (1791). It is not at all clear to us that
the scope of the Second Amendment should be different when
analyzing a federal law than when analyzing a state law. Here,
however, we need not probe this point: our conclusion with respect
to the historical record would be the same regardless of which
ratification date was used.
4 On occasion, though, we have employed an analysis that

resembled some part of the framework. Thus, in United States v.
Rene E., we traced the historical roots of laws prohibiting minors
from possessing firearms from the founding era through the early
twentieth century and concluded that the challenged law was of a
type historically understood to be consistent with the Second
Amendment. See 583 F.3d 8, 14-16 (1st Cir. 2009). So, too, in
United States v. Booker, we employed a form of means-end scrutiny
to find the law at issue substantially related to an important
governmental interest. See 644 F.3d 12, 25-26 (1st Cir. 2011).

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of the right at the time of ratification." Woollard, 712 F.3d at

875 (quoting Chester, 628 F.3d at 680). After a diligent search

for the answer to this question, we find — as have several of our

sister circuits — that there is no national consensus, rooted in

history, concerning the right to public carriage of firearms. See

Drake, 724 F.3d at 431; Kachalsky, 701 F.3d at 91. The available

guideposts point in conflicting directions and leave the indelible

impression "that states often disagreed as to the scope of the

right to bear arms." Kachalsky, 701 F.3d at 91. Courts that have

found the history conclusive relied primarily on historical data

derived from the antebellum South. See, e.g., Young, 896 F.3d at

1054-57; Wrenn v. District of Columbia, 864 F.3d 650, 660-61 (D.C.

Cir. 2017). But we find it unconvincing to argue that practices

in one region of the country reflect the existence of a national

consensus about the implications of the Second Amendment for public

carriage of firearms. After all, our nation is built upon its

diversity — and there is no principled way that we can assume that

practices in one region are representative of all regions. We

must use a wider-angled lens.

The view through this wider-angled lens tells a

different tale. A comprehensive survey of the historical record

— including the laws of Massachusetts, which "first adopted a good

cause statute in 1836" — reveals that "states and their predecessor

colonies and territories have taken divergent approaches to the

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regulation of firearms." Young, 896 F.3d at 1076, 1078 (Clifton,

J., dissenting).

The short of it is that the national historical inquiry

does not dictate an answer to the question of whether the Boston

and Brookline policies burden conduct falling within the scope of

the Second Amendment. Since we have previously exhibited

considerable hesitancy to extend the Second Amendment right beyond

the home, see Powell, 783 F.3d at 348; Hightower, 693 F.3d at 72

n.8, this phase of our inquiry brings us into uncharted waters.

The Supreme Court's seminal decision in Heller guides

our voyage. The Heller Court left no doubt that the right to bear

arms "for defense of self, family, and property" was "most acute"

inside the home. 554 U.S. at 628. If the right existed solely

within the home, the Court's choice of phrase would have been

peculiar. See Moore v. Madigan, 702 F.3d 933, 935-36 (7th Cir.

2012). So, too, the Heller Court stated that prohibitions on

carrying firearms in "sensitive places" are "presumptively

lawful," 554 U.S. at 626-27 & n.26 — a pronouncement that would

have been completely unnecessary if the Second Amendment right did

not extend beyond the home at all. Reading these tea leaves, we

view Heller as implying that the right to carry a firearm for self-

defense guaranteed by the Second Amendment is not limited to the

home.

- 22 -
 Withal, Heller did not supply us with a map to navigate

the scope of the right of public carriage for self-defense. For

example, Heller did not answer whether every citizen has such a

right, or whether (as Boston and Brookline have concluded) the

right is more narrowly circumscribed to those citizens who can

establish an individualized reason to fear injury. In the absence

of such guidance, we decline to parse this distinction today and

proceed on the assumption that the Boston and Brookline policies

burden the Second Amendment right to carry a firearm for self-

defense.

C. Level of Scrutiny.

This conclusion brings into sharp relief the next step

in our inquiry, which requires us to evaluate the challenged

policies under an appropriate level of scrutiny. The plaintiffs

argue that any law regulating the carriage of firearms for self-

defense should be subject to strict scrutiny because the Second

Amendment right is specifically articulated in the Constitution.

This argument bites off more than the plaintiffs reasonably can

expect to chew. Strict scrutiny does not automatically attach to

every right enumerated in the Constitution. See, e.g., Kelo v.

City of New London, 545 U.S. 469, 480 (2005) (refusing to apply

strict scrutiny in Takings Clause context); Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989) (applying intermediate scrutiny

to content-neutral time, place, and manner restriction challenged

- 23 -
on First Amendment grounds). Even though the Second Amendment

right is fundamental, the plaintiffs have offered us no valid

reason to treat it more deferentially than other important

constitutional rights. Consequently, we decline the plaintiffs'

invitation to take a one-size-fits-all approach to laws that burden

the Second Amendment right to any extent. See NRA, 700 F.3d at

198; see also Heller II, 670 F.3d at 1256 ("The [Supreme] Court

has not said, however, and it does not logically follow, that

strict scrutiny is called for whenever a fundamental right is at

stake.").

In our judgment, the appropriate level of scrutiny must

turn on how closely a particular law or policy approaches the core

of the Second Amendment right and how heavily it burdens that

right. See NRA, 700 F.3d at 195; Ezell, 651 F.3d at 703. A law

or policy that burdens conduct falling within the core of the

Second Amendment requires a correspondingly strict level of

scrutiny, whereas a law or policy that burdens conduct falling

outside the core of the Second Amendment logically requires a less

demanding level of scrutiny.

This gets us to the heart of the matter: whether public

carriage of firearms for self-defense is a core Second Amendment

right? In an earlier case, we identified the core of the Second

Amendment right as "the possession of operative firearms for use

in defense of the home" by responsible, law-abiding individuals.

- 24 -
Hightower, 693 F.3d at 72. We went on to hold "that the interest

. . . in carrying concealed weapons outside the home is distinct

from th[e] core interest emphasized in Heller." Id. As the court

below observed, "[a]lthough Hightower did not consider the

constitutionality of regulating the open carrying of weapons

outside the home, the authority it cited did not distinguish

between [concealed and open carry], suggesting that the operative

distinction [between the core and the periphery of the Second

Amendment] was whether the individual asserted his Second

Amendment right outside or inside the home." Gould, 291 F. Supp.

3d at 169.

We make explicit today what was implicit in Hightower:

that the core Second Amendment right is limited to self-defense in

the home. This holding finds support in a number of out-of-circuit

cases. See, e.g., United States v. Focia, 869 F.3d 1269, 1285

(11th Cir. 2017); Tyler v. Hillsdale Cty. Sheriff's Dep't, 837

F.3d 678, 685 (6th Cir. 2016) (en banc); Drake, 724 F.3d at 436;

Wollard, 712 F.3d at 876; NRA, 700 F.3d at 206; Kachalsky, 701

F.3d at 93; Reese, 627 F.3d at 800.

To be sure, some courts have formulated broader

conceptions of the core of the Second Amendment — conceptions that

include carrying firearms in public for self-defense. See Young,

896 F.3d at 1070; Wrenn, 864 F.3d at 661. Each of these decisions,

though, was reached by a divided panel over a cogent dissent. See

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Young, 896 F.3d at 1074 (Clifton, J., dissenting); Wrenn, 864 F.3d

at 668 (Henderson, J., dissenting).

We think that the weight of circuit court authority has

correctly identified the core of the Second Amendment, and our own

precedent fits comfortably within those boundaries. We think,

too, that this configuration of the Second Amendment's core

interest is consistent with Heller, in which the Court declared

that the home is where "the need for defense of self, family, and

property is most acute," such that the Second Amendment "elevates

above all other interests the . . . defense of hearth and home."

554 U.S. at 628, 635; see GeorgiaCarry.Org, Inc. v. Georgia, 687

F.3d 1244, 1259 (11th Cir. 2012) (explaining that the Heller Court

"went to great lengths to emphasize the special place that the

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

society").

Societal considerations also suggest that the public

carriage of firearms, even for the purpose of self-defense, should

be regarded as falling outside the core of the Second Amendment

right. The home is where families reside, where people keep their

most valuable possessions, and where they are at their most

vulnerable (especially while sleeping at night). Outside the home,

society typically relies on police officers, security guards, and

the watchful eyes of concerned citizens to mitigate threats. This

same panoply of protections is much less effective inside the home.

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Police may not be able to respond to calls for help quickly, so an

individual within the four walls of his own house may need to

provide for the protection of himself and his family in case of

emergency. Last — but surely not least — the availability of

firearms inside the home implicates the safety only of those who

live or visit there, not the general public.

Viewed against this backdrop, the right to self-defense

— upon which the plaintiffs rely — is at its zenith inside the

home. This right is plainly more circumscribed outside the home.

"[O]utside the home, firearm rights have always been more limited,

because public safety interests often outweigh individual

interests in self-defense." United States v. Masciandaro, 638

F.3d 458, 470 (4th Cir. 2011). These truths are especially evident

in densely populated urban areas like Boston and Brookline. See

Joseph Blocher, Firearm Localism, 123 Yale L.J. 82, 108 (2013)

(explaining that "American cities have traditionally had much more

stringent gun control than rural areas").

This sort of differentiation is not unique to Second

Amendment rights. Many constitutional rights are virtually

unfettered inside the home but become subject to reasonable

regulation outside the home. See, e.g., Lawrence v. Texas, 539

U.S. 558, 567 (2003); Stanley v. Georgia, 394 U.S. 557, 565 (1969);

see also Payton v. New York, 445 U.S. 573, 596 (1980) (declaring

that "a man's house is his castle").

- 27 -
 To sum up, we hold that the core right protected by the

Second Amendment is — as Heller described it — "the right of law-

abiding, responsible citizens to use arms in defense of hearth and

home." 554 U.S. at 635. Public carriage of firearms for self-

defense falls outside the perimeter of this core right.

This holding does not end our journey. Heller left open

— and we have yet to address — what level of scrutiny applies to

laws that burden the periphery of the Second Amendment right but

not its core. For the reasons that follow, we decide today that

intermediate scrutiny supplies the appropriate test.

To begin, our decision in Booker points us toward this

conclusion. There, we applied an unnamed level of scrutiny in

evaluating the constitutionality of a law prohibiting domestic

violence misdemeanants from possessing firearms. See 644 F.3d at

13, 25-26. Although we abjured any label, the standard that we

articulated was indistinguishable from intermediate scrutiny.

Compare id. at 25 (requiring "a substantial relationship between

the restriction and an important governmental objective"), with

Clark v. Jeter, 486 U.S. 456, 461 (1988) (explaining that "[t]o

withstand intermediate scrutiny, a statutory classification must

be substantially related to an important governmental objective").

Other courts have not minced words but, rather, have affixed the

label of "intermediate scrutiny" to the level of scrutiny employed

in Booker. See, e.g., Schrader v. Holder, 704 F.3d 980, 990 (D.C.

- 28 -
Cir. 2013); Kachalsky, 701 F.3d at 93 n.17. Nor have our sister

circuits shied away from a conclusion that intermediate scrutiny

is the appropriate test for evaluating firearms regulations that

burden conduct falling outside the core of the Second Amendment

(including "good reason" laws similar to the Massachusetts

statute). See Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126

(10th Cir. 2015); Drake, 724 F.3d at 435; Woollard, 712 F.3d at

876; Kachalsky, 701 F.3d at 96; NRA, 700 F.3d at 196; Ezell, 651

F.3d at 708; see also Tyler, 837 F.3d at 692 (noting "near

unanimous preference for intermediate scrutiny" in such cases).

Finally, our conclusion that intermediate scrutiny is

appropriate to evaluate firearms regulations that burden rights on

the periphery of the Second Amendment fits comfortably in the

lacuna left by Heller. The Heller Court found that the District

of Columbia's ban on handguns in the home failed under "any of the

standards of scrutiny" historically applied by the Court "to

enumerated constitutional rights." 554 U.S. at 628-29. This

statement implies that there is a role for some level of scrutiny

less rigorous than strict scrutiny. Even so, the Court made clear

that rational basis review would not be sufficient. See id. at

628 n.27.

Here, all roads lead to Rome. Following this roadmap,

we find that a law or policy that restricts the right to carry a

firearm in public for self-defense will withstand a Second

- 29 -
Amendment challenge so long as it survives intermediate scrutiny.

To pass constitutional muster in this case, then, the defendants

must show that the Massachusetts firearms licensing statute, as

implemented by the Boston and Brookline policies, substantially

relates to one or more important governmental interests. It is to

this question that we now turn.

D. Applying Intermediate Scrutiny.

The Massachusetts firearms licensing statute allows (but

does not compel) local licensing authorities to issue licenses to

applicants who "ha[ve] good reason to fear injury to [themselves]

or [their] property." Mass. Gen. Laws ch. 140, § 131(d). It also

allows local licensing authorities to issue licenses "for any other

reason," with such restrictions as those authorities "deem[]

proper." Id. § 131(a), (d). The legislative purpose behind the

statute is twofold: to promote public safety and to prevent crime.

See Chardin v. Police Comm'r of Bos., 989 N.E.2d 392, 403 (Mass.

2013); Commonwealth v. Seay, 383 N.E.2d 828, 833 (Mass. 1978). In

fashioning this regime, Massachusetts endeavored "to prevent the

temptation and the ability to use firearms to inflict harm, be it

negligently or intentionally, on another or on oneself."

Commonwealth v. Lee, 409 N.E.2d 1311, 1315 (Mass. App. Ct. 1980).

It cannot be gainsaid that Massachusetts has compelling

governmental interests in both public safety and crime prevention.

See, e.g., Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357,

- 30 -
376 (1997). In point of fact, few interests are more central to

a state government than protecting the safety and well-being of

its citizens. See United States v. Salerno, 481 U.S. 739, 755

(1987); Watchtower Bible, 634 F.3d at 12; see also United States

v. Morrison, 529 U.S. 598, 618 (2000) ("Indeed, we can think of no

better example of the police power . . . than the suppression of

violent crime . . . ."). Given the obvious importance of the

Commonwealth's governmental interests, the question before us

reduces to whether the "good reason" requirement is substantially

related to those interests.

In answering this question, we start with the premise

that courts ought to give "substantial deference to the predictive

judgments" of a state legislature engaged in the enactment of state

laws. Turner Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180,

195 (1997). This degree of deference forecloses a court from

substituting its own appraisal of the facts for a reasonable

appraisal made by the legislature. See Holder v. Humanitarian Law

Project, 561 U.S. 1, 34 (2010).

We caution, however, that deference should not be

confused with blind allegiance. There must be a fit between the

asserted governmental interests and the means chosen by the

legislature to advance those interests. See Woollard, 712 F.3d at

878. In assessing this fit, a perfect match is not required. See

id. Put another way, a legislature's chosen means need not be

- 31 -
narrowly tailored to achieve its ends: the fit between the

asserted governmental interests and the means chosen by the

legislature to advance them need only be substantial in order to

withstand intermediate scrutiny. See Kachalsky, 701 F.3d at 97;

cf. Booker, 644 F.3d at 26 (upholding law that "substantially

promote[d] an important government interest"). Courts have

described this requirement in various ways. A typical formulation

— with which we agree — describes it as "a reasonable fit . . .

such that the law does not burden more conduct than is reasonably

necessary." Drake, 724 F.3d at 436; see Woollard, 712 F.3d at

878.

Here, the fit between the asserted governmental

interests and the means chosen to advance them is close enough to

pass intermediate scrutiny. The challenged regime does not

infringe at all on the core Second Amendment right of a citizen to

keep arms in his home for the purpose of self-defense. Outside

the home, the regime arguably does burden a citizen's non-core

Second Amendment right. See supra Sections III.B, III.C. But in

allocating this burden, the Massachusetts legislature was

cognizant that firearms can present a threat to public safety.

Striving to strike a balance, the legislature took note that some

individuals might have a heightened need to carry firearms for

self-defense and allowed local licensing authorities to take a

case-by-case approach in deciding whether a particular "applicant

- 32 -
has good reason to fear injury." Mass. Gen. Laws ch. 140, §

131(d). In addition, the legislature made appropriate provisions

for restricted licenses, thus ensuring that individuals may carry

firearms while engaging in hunting, target-shooting, and a host of

other pursuits. Those same protections extend to individuals who

need to carry firearms for work-related reasons.

Nor do the Boston and Brookline policies result in a

total ban on the right to public carriage of firearms. In this

respect, the policies coalesce with the Massachusetts statute to

form a regime that is markedly less restrictive than the regimes

found unconstitutional by the Seventh and Ninth Circuits. The

Illinois ban on public carriage struck down by the Seventh Circuit

did not give the slightest recognition to the heightened need of

some individuals to arm themselves for self-protection, see Moore,

702 F.3d at 940 (noting that "[n]ot even Massachusetts has so flat

a ban as Illinois"), and the Hawaii law struck down by the Ninth

Circuit created a regime under which not a single unrestricted

license for public carriage had ever been issued, see Young, 896

F.3d at 1071 n.21. The Ninth Circuit took pains to distinguish

the Hawaii law from laws in which the "good cause" standard "did

not disguise an effective ban on the public carry of firearms."

Id. at 1072.

The Massachusetts regime is more akin to those regimes

upheld in the Second, Third, and Fourth Circuits. See Drake, 724

- 33 -
F.3d at 428-29, 439-40; Woollard, 712 F.3d at 868-70, 882;

Kachalsky, 701 F.3d at 85-87, 101. Those regimes — like the regime

at issue here — "provided for administrative or judicial review of

any license denial, . . . a safeguard conspicuously absent from

Hawaii's laws." Young, 896 F.3d at 1072.

The sockdolager, of course, is that the defendants have

forged a substantial link between the restrictions imposed on the

public carriage of firearms and the indisputable governmental

interests in public safety and crime prevention. Massachusetts

consistently has one of the lowest rates of gun-related deaths in

the nation, and the Commonwealth attributes this salubrious state

of affairs to its comprehensive firearms licensing regime. To

buttress this point, the defendants have cited several studies

indicating that states with more restrictive licensing schemes for

the public carriage of firearms experience significantly lower

rates of gun-related homicides and other violent crimes. See,

e.g., Cassandra K. Crifasi et al., Association Between Firearm

Laws and Homicide in Urban Counties, 95 J. Urban Health 383 (2018);

Michael Siegel et al., Easiness of Legal Access to Concealed

Firearm Permits and Homicide Rates in the United States, 107 Am.

J. Pub. Health 1923, 1923-29 (2017); John J. Donahue et al., Right-

to-Carry Laws and Violent Crime: A Comprehensive Assessment Using

Panel Data, the LASSO, and a State-Level Synthetic Controls

Analysis, 3, 63 (Nat'l Bureau of Econ. Research, Working Paper No.

- 34 -
23510, 2018). They also cite statistics indicating that gun owners

are more likely to be the victims of gun violence when they carry

their weapons in public. See Charles C. Branas et al.,

Investigating the Link Between Gun Possession and Gun Assault, 99

Amer. J. Pub. Health 2034 (2009). Finally, the defendants have

expressed a credible concern that civilians (even civilians who,

like the plaintiffs, are law-abiding citizens) might miss when

attempting to use a firearm for self-defense on crowded public

streets and, thus, create a deadly risk to innocent bystanders.5

Several other courts of appeals have conducted similar

inquiries and have concluded that "good reason" laws are

substantially related to the promotion of public safety and the

prevention of crime. See Drake, 724 F.3d at 439-40; Woollard, 712

F.3d at 879-80; Kachalsky, 701 F.3d at 98-99; see also Peruta v.

Cty. of San Diego, 824 F.3d 919, 942-45 (9th Cir. 2016) (en banc)

(Graber, J., concurring). Emblematic of these decisions is the

series of conclusions reached by the Fourth Circuit, which found

that such laws "protect[] citizens and inhibit[] crime by . . .

[d]ecreasing the availability of handguns to criminals via theft";

reduce "the likelihood that basic confrontations between

5
In support of this stated concern, the defendants cite a
study finding that highly trained New York City police officers
had an average accuracy rate of only eighteen percent in gunfights.
See Bernard D. Rostker et al., RAND Ctr. on Quality Policing,
Evaluation of the New York City Police Department Firearm Training
and Firearm-Discharge Review Process 14 (2008).

- 35 -
individuals would turn deadly"; deter "the 'potentially tragic

consequences' . . . that can result from the presence of a third

person with a handgun during a confrontation between a police

officer and a criminal suspect"; "[c]urtail[] the presence of

handguns during routine police-citizen encounters"; decrease "the

number of 'handgun sightings' that must be investigated"; and

"[f]aciliat[e] the identification of those persons carrying

handguns who pose a menace." Woollard, 712 F.3d at 879-80

(citations omitted). We agree.

Withal, there are two sides to the story. Fairly viewed,

the defendants' judgments about whether reasonable restrictions on

the public carriage of firearms advance public safety and prevent

crime are plausible, but not infallible. In short, those judgments

are open to legitimate debate.

To this end, the plaintiffs present a profusion of

countervailing studies and articles. Drawing on these materials,

they argue that the increased presence of firearms on public

streets would act as a deterrent to criminals, not as a menace to

public safety. They also laud the perceived benefits attendant to

the defensive use of firearms. See Gary Kleck & Marc Gertz, Armed

Resistance to Crime: The Prevalence and Nature of Self-Defense

With a Gun, 86 J. Crim. L. & Criminology 150, 164 (1995). Several

amici add their voices to the chorus, debating the findings and

- 36 -
credibility of a kaleidoscopic array of studies and articles. Some

support the plaintiffs; others support the defendants.

Taken in the ensemble, the disparate views expressed in

these studies, articles, and other submissions aptly illustrate

that we are dealing with matters of judgment, not with matters of

metaphysical certainty. To a large extent, choosing among these

disparate views is like choosing from a menu at a popular

restaurant: something can be found to suit every palate and the

diner's choice is more likely to reflect her particular taste than

the absolute quality of the dish. In the process of crafting sound

policy, a legislature often must sift through competing strands of

empirical support and make predictive judgments to reach its

conclusions. See Turner Broad. Sys., Inc. v. FCC (Turner I), 512

U.S. 622, 665 (1994) (opinion of Kennedy, J.). This is plainly an

inexact science, and courts must defer to a legislature's choices

among reasonable alternatives. Institutionally, a legislative

body is better equipped than a court to assess the compendium of

data bearing upon a particular issue and to reach predictive

judgments about what those data portend. See Turner II, 520 U.S.

at 195. This is especially true of fraught issues, such as gun

violence: "when it comes to collecting evidence and drawing

factual inferences in this area, 'the lack of competence on the

part of the courts is marked' and respect for the Government's

- 37 -
conclusions is appropriate." Humanitarian Law Project, 561 U.S.

at 34 (quoting Rostker v. Goldberg, 453 U.S. 57, 65 (1981)).

We conclude that this case falls into an area in which

it is the legislature's prerogative — not ours — to weigh the

evidence, choose among conflicting inferences, and make the

necessary policy judgments. In dealing with a complex societal

problem like gun violence, there will almost always be room for

reasonable minds to differ about the optimal solution. It follows,

we think, that a court must grant the legislature flexibility to

select among reasonable alternatives. It would be foolhardy — and

wrong — to demand that the legislature support its policy choices

with an impregnable wall of unanimous empirical studies. Instead,

the court's duty is simply "to assure that, in formulating its

judgments, [the legislature] has drawn reasonable inferences based

on substantial evidence." Turner I, 512 U.S. at 666 (opinion of

Kennedy, J.).

Let us be perfectly clear. The problems associated with

gun violence are grave. Shootings cut short tens of thousands of

American lives each year. Massachusetts has made a reasoned

attempt to reduce the risks of gun violence on public streets: it

has democratically adopted a firearms licensing statute that takes

account of the heightened needs of some individuals to carry

firearms for self-defense and balances those needs against the

- 38 -
demands of public safety. The Boston and Brookline policies fit

seamlessly with these objectives.

To cinch the matter, the defendants have adduced

evidence sufficient to show a substantial relationship between the

challenged regime and important governmental interests. Though

not incontrovertible, this evidence has considerable force — and

the legislature was entitled to rely on it to guide its policy

choices. The upshot is a "measured approach" that "neither bans

public handgun carrying nor allows public carrying by all firearm

owners . . . [leaving] room for public carrying by those citizens

who can demonstrate" good reason to do so. Drake, 724 F.3d at

440. Consequently, we hold that the Massachusetts firearms

licensing statute, as implemented by the Boston and Brookline

policies, passes muster under the Second Amendment.

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the district court's entry of summary judgment in favor

of the defendants.

Affirmed.

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