GeorgiaCarry.Org, Inc. v. The State of Georgia

Case: 11-10387 Date Filed: 07/20/2012 Page: 1 of 40

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 11-10387
________________________
D.C. Docket No. 5:10-cv-00302-CAR

GEORGIACARRY.ORG, INC., THE BAPTIST
TABERNACLE OF THOMASTON GEORGIA INC.,
EDWARD STONE, JONATHAN WILKINS,

Plaintiffs-Appellants,

versus

THE STATE OF GEORGIA, UPSON COUNTY GEORGIA,
GOVERNOR OF GEORGIA,
COUNTY MANAGER KYLE HOOD,

Defendants-Appellants.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
________________________
(July 20, 2012)

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
 Case: 11-10387 Date Filed: 07/20/2012 Page: 2 of 40

TJOFLAT, Circuit Judge:

In 2010, the Georgia legislature, apparently concerned that the carrying of

weapons1 and long guns2 would likely present an unreasonable risk of harm to

people who assemble in eight specific locations, enacted a statute barring the

unrestricted carrying of weapons or long guns in those locations. O.C.G.A. § 16-

11-127(b) (this provision is hereinafter referred to as the “Carry Law”).3 This

1
A “weapon” is a “knife or handgun.” O.C.G.A. § 16-11-125.1(5). A knife is “a cutting
instrument designed for the purpose of offense and defense consisting of a blade that is greater
than five inches in length which is fastened to a handle.” Id. § 16-11-125.1(2). This case
involves the carrying of a handgun.
2
A “long gun” is a “firearm with a barrel length of at least 18 inches and overall length
of at least 26 inches designed . . . to be fired from the shoulder[.]” Id. § 16-11-125.1(4).
3
O.C.G.A. § 16-11-127 reads, in relevant part:

(b) A person shall be guilty of carrying a weapon or long gun in an unauthorized
location and punished as for a misdemeanor when he or she carries a weapon or
long gun while:

(1) In a government building;

(2) In a courthouse;

(3) In a jail or prison;

(4) In a place of worship;

(5) In a state mental health facility . . .;

(6) In a bar . . .;

(7) On the premises of a nuclear power facility . . .; or

(8) Within 150 feet of any polling place

2
 Case: 11-10387 Date Filed: 07/20/2012 Page: 3 of 40

statutory bar does not apply, however, to a license holder4 if, on arriving at one of

the eight locations, such person “approaches security or management personnel

upon arrival . . . and notifies such security or management personnel of the

presence of the weapon or long gun and explicitly follows the security or

management personnel’s direction for removing, securing, storing, or temporarily

surrendering such weapon or long gun.” Id. § 16-11-127 (d)(2). The refusal to

(c) Except as provided in Code Section 16-11-127.1, a license holder or person
recognized under subsection (e) of Code Section 16-11-126 shall be authorized to
carry a weapon as provided in Code Section 16-11-135 and in every location in
this state not listed in subsection (b) of this Code section; provided, however, that
private property owners or persons in legal control of property through a lease,
rental agreement, licensing agreement, contract, or any other agreement to control
access to such property shall have the right to forbid possession of a weapon or
long gun on their property, except as provided in Code Section 16-11-135. A
violation of subsection (b) of this Code section shall not create or give rise to a
civil action for damages.

(d) Subsection (b) of this Code section shall not apply:

...

(2) To a license holder who approaches security or management personnel
upon arrival at a location described in subsection (b) of this Code section
and notifies such security or management personnel of the presence of the
weapon or long gun and explicitly follows the security or management
personnel’s direction for removing, securing, storing, or temporarily
surrendering such weapon or long gun[.]

(emphasis added).
4
O.C.G.A. § 16-11-126 describes under what circumstances a person needs a weapons
carry license in order to possess and carry a weapon or long gun. In essence, the statute prohibits
carrying a weapon or long gun without a valid license, unless the carrying falls under one of
seven situations not relevant to this case.

3
 Case: 11-10387 Date Filed: 07/20/2012 Page: 4 of 40

approach security or management personnel or to comply with management’s

direction is a misdemeanor. Id. § 16-11-127 (b).

One of the eight locations designated in the Carry Law is a “place of

worship.” Id. § 16-11-127(b)(4). In this case, Edward Stone and Jonathan

Wilkins (“Plaintiffs”) each allege in their Amended Complaint that they regularly

attend religious services, possess a weapons carry license, and “would like to carry

a handgun” while in a place of worship. Plaintiffs seek a declaration that the

Carry Law is unconstitutional on its face and as applied to them because

compliance with § 16-11-127 will violate their First Amendment right to the free

exercise of their religion5 and their Second Amendment right to bear arms.6 The

United States District Court for the Middle District of Georgia found no merit in

either claim and dismissed the Amended Complaint with prejudice pursuant to

Federal Rule of Civil Procedure 12(b)(6).7 Plaintiffs now appeal the District

Court’s judgment, arguing that the allegations in the Amended Complaint are

5
The First Amendment provides, in pertinent part, “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const.
amend. I.
6
The Second Amendment reads, “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.
7
Federal Rule of Civil Procedure 12(b)(6) provides that a district court may grant a
motion to dismiss for a “failure to state a claim upon which relief can be granted.”

4
 Case: 11-10387 Date Filed: 07/20/2012 Page: 5 of 40

sufficient to make out a case that the Carry Law’s place of worship provision is

unconstitutional either on its face or as applied to Plaintiffs.8

I.

This case began on July 12, 2010, in the Superior Court of Upson County,

Georgia. Plaintiffs sued the State of Georgia and Upson County in a two-count

complaint presenting the constitutional claims referred to above and seeking

declaratory and injunctive relief under 42 U.S.C. § 1983 in the Superior Court of

Upson County.9 The State and the County removed the case to the District Court

pursuant to 28 U.S.C. §§ 1441 and 1446. Plaintiffs amended their complaint to

add two defendants, the Governor of Georgia and the Manager of Upson County,

and two counts. Their Amended Complaint then read as follows: Count 1, a

8
GeorgiaCarry.Org, Inc., and the Baptist Tabernacle of Thomaston, Georgia, Inc., co-
plaintiffs with Stone and Wilkins, also appeal the District Court’s judgment. GeorgiaCarry.Org
has members, who, like Stone and Wilkins, possess a weapons carry license, regularly attend
religious services, and “would like to carry a handgun” in “places of worship.” Baptist
Tabernacle “would like to have [its] members armed for the protection of its members attending
worship services.” Since the claims of GeorgiaCarry.Org and Baptist Tabernacle are essentially
identical to Stone’s and Wilkins’s, this opinion does not refer to these co-plaintiffs unless
necessary for context.
9
42 U.S.C. § 1983 states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .

5
 Case: 11-10387 Date Filed: 07/20/2012 Page: 6 of 40

“direct action,” asserted that the Carry Law “interfered with” Plaintiffs’ free

exercise of religion; Count 2, brought under § 1983, replicated Count 1; Count 3,

another “direct action,” asserted that the Carry Law infringes Plaintiffs’ right to

keep and bear arms; Count 4, brought under § 1983, replicated Count 3.10

The State of Georgia and the Governor jointly moved to dismiss the

Amended Complaint under Federal Rule of Civil Procedure 12(b)(1)11 on the

grounds of Eleventh Amendment immunity12 and Plaintiffs’ lack of standing to

sue, and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim

for relief. Upson County and the County Manager separately moved the court to

dismiss the Amended Complaint under Rule 12(b)(1) for Plaintiffs’s lack of

10
The Amended Complaint, contained a fifth count seeking an injunction against the
State’s expenditure of funds to enforce the Carry Law’s “place of worship” provision. The
District Court dismissed Count 5 because Plaintiffs’ claims on Counts 1 through 4 failed to state
a claim for relief. Plaintiffs appealed the District Court’s judgment dismissing the Amended
Complaint, but their brief contains no argument that the court erred in dismissing Count 5. The
appeal as to that count is accordingly abandoned. United States v. Jernigan, 341 F.3d 1273, 1283
n.8 (11th Cir. 2003) (considering an argument abandoned when “a party seeking to raise a claim
or issue on appeal [fails to] plainly and prominently so indicate.”).
11
Federal Rule of Civil Procedure 12(b)(1) permits a district court to dismiss for “lack of
subject-matter jurisdiction.”
12
See U.S. Const. amend. XI (“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”); see
also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908,
79 L. Ed. 2d 67 (1984) (“This Court’s decisions thus establish that ‘an unconsenting State is
immune from suits brought in federal courts by her own citizens as well as by citizens of another
state.’” (quoting Employees v. Missouri Public Health & Welfare Dep’t, 411 U.S. 279, 280, 93
S. Ct. 1614, 1616, 36 L. Ed. 2d 251 (1973))).

6
 Case: 11-10387 Date Filed: 07/20/2012 Page: 7 of 40

standing, and under Rule 12(b)(6) because the Amended Complaint failed to state

a claim for relief.

In addressing the defendants’ motions, the District Court bypassed the

question of whether Plaintiffs had standing to sue and went straight to the question

of whether any of the counts of the Amended Complaint stated a claim for relief.

The court found that none of the counts stated a claim, and therefore dismissed the

respective counts on the merits. The court dismissed all counts against the State

on the additional ground of Eleventh Amendment immunity.13 Before we decide

whether the District Court erred in dismissing the four counts of the Amended

Complaint under Rule 12(b)(6), we must address an issue the District Court

bypassed: whether Plaintiffs lacked standing to sue.14 It is to that issue that we

turn now.

II.

13
In addition to arguing that the District Court erred in dismissing their claims under
Federal Rule of Civil Procedure 12(b)(6), Plaintiffs also challenge the court’s dismissal of the
claims against the State on the Eleventh Amendment ground. Because we conclude that none of
the counts of the Amended Complaint states a claim for relief, we need not, and do not, address
the Eleventh Amendment issue.
14
See Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1275 (11th Cir. 2012) (“We
have an independent obligation to determine whether jurisdiction exists in each case before us, so
we may consider questions of jurisdiction sua sponte even when, as here, the parties have not
raised jurisdictional challenges.” (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct.
1235, 1244, 163 L. Ed. 2d 1097 (2006))).

7
 Case: 11-10387 Date Filed: 07/20/2012 Page: 8 of 40

“The judicial Power [of the United States] shall extend to all Cases, in Law

and Equity, arising under this Constitution.” U.S. Const. art. III, § 2. To establish

an Article III “case,” see Summers v. Earth Island Inst., 555 U.S. 488, 492–93, 129

S. Ct. 1142, 1148–49, 173 L. Ed. 2d 1 (2009) (“In limiting the judicial power to

‘Cases’ and ‘Controversies,’ Article III of the Constitution restricts it to the

traditional role of Anglo-American courts, which is to redress or prevent actual or

imminently threatened injury to persons caused by private or official violation of

law.”), a plaintiff must establish standing, which requires a showing that

(1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180–181,

120 S. Ct. 693, 704, 145 L. Ed. 2d 610 (2000) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–561, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351

(1992)). Case law from both the Supreme Court and this court is clear: because

we must afford special protection for the exercise of constitutional rights, a

plaintiff does not always need to risk prosecution to obtain preventative relief

when his or her exercise of a constitutional right at stake. See Steffel v.

Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 1215, 39 L. Ed. 2d 505 (1974) (“[I]t

8
 Case: 11-10387 Date Filed: 07/20/2012 Page: 9 of 40

is not necessary that [the plaintiff] first expose himself to actual arrest or

prosecution to be entitled to challenge [the] statute that he claims deters the

exercise of his constitutional rights.”); Jacobs v. Florida Bar, 50 F.3d 901, 904

(11th Cir. 1995) (“A plaintiff stating that he ‘intends to engage in a specific course

of conduct arguably affected with a constitutional interest, . . . does not have to

expose himself to enforcement to be able to challenge the law.’” (quoting ACLU

v. Florida Bar, 999 F.2d 1486, 1492 (11th Cir. 1993))). Instead, a plaintiff with

the exercise of a constitutional right at stake may seek declaratory or injunctive

relief prior to the challenged statute’s enforcement. See Ex Parte Young, 209 U.S.

123, 150–51, 28 S. Ct. 441, 450, 52 L. Ed. 714 (1908) (concluding that state

officials may be enjoined by a federal court of equity and that a federal court may,

in appropriate circumstances, enjoin future state criminal prosecutions if the state

officials threaten to enforce an unconstitutional statute).

The “injury” in this pre-enforcement context is the well-founded fear that

comes with the risk of subjecting oneself to prosecution for engaging in allegedly

protected activity. Babbitt v. UFW, 442 U.S. 289, 298–99, 99 S. Ct. 2301, 2309,

60 L. Ed. 2d 895 (1979) (“When plaintiffs ‘do not claim that they have ever been

threatened with prosecution, that a prosecution is likely, or even that a prosecution

is remotely possible,’ they do not allege a dispute susceptible to resolution by a

9
 Case: 11-10387 Date Filed: 07/20/2012 Page: 10 of 40

federal court.” (quoting Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct. 746, 749, 27

L. Ed. 2d 669 (1971))); see also Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S.

383, 393, 108 S. Ct. 636, 643, 98 L. Ed. 2d 782 (1988) (finding that allegations

were sufficient when plaintiffs alleged “actual and well-founded fear that law will

be enforced against them.”).

This court has held that a risk of prosecution is sufficient if the plaintiff

alleges (1) that an actual threat of prosecution was made, (2) that prosecution is

likely, or (3) that a credible threat of prosecution exists based on the

circumstances. See Jacobs, 50 F.3d at 904. To show that a prosecution is likely or

a credible threat exists, a plaintiff must show that there is “a realistic danger of

sustaining direct injury as a result of the statute’s operation or enforcement.” Am.

Civil Liberties Union v. Florida Bar, 999 F.2d 1486, 1492 (11th Cir. 1993)

(quoting Babbitt v. United Farm Workers Nat. Union., 442 U.S. 289, 298, 99 S.

Ct. 2301, 2308, 60 L. Ed. 2d 895 (1979)). We look to see “whether the plaintiff is

seriously interested in disobeying, and the defendant seriously intent on enforcing

the challenged measure.” Id. at 1493 (quoting Int’l Soc’y for Krishna

Consciousness v. Eaves, 601 F.2d 809, 818 (5th Cir. 1979)).

Although the Amended Complaint is lacking in many respects, we believe

that Plaintiffs have alleged a credible threat of prosecution under the Carry Law

10
 Case: 11-10387 Date Filed: 07/20/2012 Page: 11 of 40

sufficient to establish standing to bring a facial challenge. They are license

holders who regularly attend services at a place of worship. Moreover, they

“would like to carry a handgun in such place of worship for the protection of

[their] family and [themselves], but [they are] in fear of arrest and prosecution.” It

thus seems clear that Plaintiffs are seriously interested in engaging in conduct that

is arguably prohibited by the Carry Law and that could give rise to prosecution by

state authorities. Nothing in the defendants’ answers suggests that the Carry Law

will not be vigorously enforced. Therefore, we cannot say that there exists only a

“speculative risk” of prosecution; rather, Plaintiffs appear to be subject to a

legitimate threat that they will be prosecuted for activity that, they believe, is

constitutionally protected. And, if the court granted the relief that Plaintiffs’ seek,

we would surely provide redress for the alleged constitutional infringement at

issue.

III.

Having concluded that Plaintiffs have standing to prosecute their claims, we

turn to the question of whether the District Court erred in dismissing Counts 1 and

2 of the Amended Complaint—the allegation that Plaintiffs’ forced compliance

with the Carry Law will infringe their right to the free exercise of their religion, in

violation of the First Amendment.

11
 Case: 11-10387 Date Filed: 07/20/2012 Page: 12 of 40

A.

The First Amendment provides, “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof[.]” U.S. Const.

amend. I (emphasis added). The Free Exercise Clause of the First Amendment is

applicable to the States through the Due Process Clause of the Fourteenth

Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903,

84 L. Ed. 1213 (1940). The protections afforded by the Free Exercise Clause

prevent the government from discriminating against the exercise of religious

beliefs or conduct motivated by religious beliefs. See Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S. Ct. 2217, 2226, 124

L. Ed. 2d 472 (1993) (“At a minimum, the protections of the Free Exercise Clause

pertain if the law at issue discriminates against some or all religious beliefs or

regulates or prohibits conduct because it is undertaken for religious reasons.”).

1.

Counts 1 and 2 allege that the Carry Law “interferes with the free exercise

of religion by Plaintiffs by prohibiting them from engaging in activities in a place

of worship when those activities are permitted throughout the state.” Count 1,

labeled a “direct action,” purports to state a cause of action directly under the First

Amendment. The Amended Complaint, however, does not cite the statutory

12
 Case: 11-10387 Date Filed: 07/20/2012 Page: 13 of 40

source of the District Court’s jurisdiction to entertain Count 1; nor does the

District Court’s order dismissing it. The District Court ruled on the merits of

Count 1; thus, we assume that the court found jurisdiction under 28 U.S.C. § 1331,

which gives the district courts “original jurisdiction of all civil actions arising

under the Constitution . . . of the United States.” The First Amendment does not

explicitly create the cause of action Count 1 attempts to assert, and we are aware

of no case holding that such cause of action is implied when the relief a plaintiff

seeks is plainly available through a mechanism created by Congress.15 In light of

this, the District Court did not err in dismissing Count 1 pursuant to Rule 12(b)(6)

for failure to state a claim for relief.

Count 2 asserts a claim under 42 U.S.C. § 1983.16 Once again, neither the

Amended Complaint nor the District Court’s order cites the source of the District

Court’s jurisdiction to consider the claim. Because the court addressed Count 2 on

the merits, we assume that it found jurisdiction under § 1331 and 28 U.S.C.

15
Where a statute provides an adequate remedy, we will not imply a judicially created
cause of action directly under the Constitution. See Bush v. Lucas, 462 U.S. 367, 390, 103 S. Ct.
2404, 2417, 76 L. Ed. 2d 648 (1983); Schweiker v. Chilicky, 487 U.S. 412, 414, 425, 108 S. Ct.
2460, 2468–69, 101 L. Ed. 2d 370 (1988); see also Williams v. Bennett, 689 F.2d 1370, 1390
(11th Cir. 1982).
16
See 42 U.S.C. § 1983 (“Every person who . . . subjects . . . any citizen of the United
States . . . to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”).

13
 Case: 11-10387 Date Filed: 07/20/2012 Page: 14 of 40

§ 1343, which gives the District Courts “original jurisdiction of any civil action

authorized by law to be commenced by any person . . . [t]o redress the deprivation,

under color of any State law . . . of any right . . . secured by the Constitution of the

United States.” 28 U.S.C. § 1343.

Section 1983 gives a party who claims to have suffered the deprivation of a

constitutional right at the hands of a person acting “under color of” state law “an

action at law [or] suit in equity” against such person “for redress.” 42 U.S.C.

§ 1983. In this case, the redress Plaintiffs seek is a declaration that the “place of

worship” provision is unconstitutional on its face and as applied to them. The

State of Georgia, however, is not a “person” subject to suit under § 1983. See Will

v. Michigan Dept. of State Police, 491 U.S. 58, 65–66, 109 S. Ct. 2304, 2309, 105

L. Ed. 2d 45 (1989) (concluding that a State is not a “person” under § 1983). The

District Court dismissed the State under the Eleventh Amendment, but could have

dismissed it on the ground that it is not amenable to § 1983 liability. Upson

County would be subject to § 1983 liability, though, if it caused through the

enforcement of County policy the constitutional deprivation Plaintiffs say they

would suffer, but the Amended Complaint fails to allege that their prosecution for

14
 Case: 11-10387 Date Filed: 07/20/2012 Page: 15 of 40

refusing to comply with the Carry Law would be pursuant to County policy.17

Hence, the District Court properly dismissed Count 2 against the County. The

County Manager is amenable to § 1983 liability, but Count 2 contains no

allegation of wrongdoing specific to him. Accordingly, the court did not err in

dismissing Count 2 as to the Manager.

This brings us to the Governor. Part of the Governor’s job is to ensure the

enforcement of Georgia’s statutes.18 He is subject to suit under § 1983, and the

District Court properly entertained Plaintiffs’ Count 2 allegations against him. We

now address the question of whether Count 2 states a claim for declaratory relief

against the Governor sufficient to survive a motion to dismiss.

17
Municipalities can serve as a “person” for the purposes of a suit under § 1983. See
Monell v. Dep’t of Social Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035–36, 56 L. Ed. 2d 611
(1978). To hold a municipality liable, however, a plaintiff must point to a policy of the
municipality, the enforcement of which will infringe a constitutional right. Bd. of Cnty.
Comm’rs v. Brown, 520 U.S. 397, 415, 117 S. Ct. 1382, 1394, 137 L. Ed. 2d 626 (1997)
(“Congress did not intend municipalities to be held liable unless deliberate action attributable to
the municipality directly caused a deprivation of federal rights.”). Plaintiffs here have not done
so. See Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (“A policy is a decision that is
officially adopted by the municipality, or created by an official of such rank that he or she could
be said to be acting on behalf of the municipality . . . . A custom is a practice that is so settled and
permanent that it takes on the force of law.” (quoting Sewell v. Town of Lake Hamilton, 117
F.3d 488, 489 (11th Cir. 1997))).
18
Georgia law arguably endows the Governor with law enforcement authority, although
other officials, who are charged specifically to enforce the law, would certainly be more
appropriate defendants. See Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir. 1988) (“According
to the Georgia constitution, the governor is responsible for law enforcement in that state and is
charged with executing the laws faithfully.” (citing Ga. Const. art. 5, § 2)).

15
 Case: 11-10387 Date Filed: 07/20/2012 Page: 16 of 40

2.

To survive a motion to dismiss, a plaintiff must “plead factual matter that, if

taken as true, states a claim” that is plausible on its face. Ashcroft v. Iqbal, 556

U.S. 662, 666, 129 S. Ct. 1937, 1942–43, 173 L. Ed. 2d 868 (2009). This

necessarily requires that a plaintiff include factual allegations for each essential

element of his or her claim. Randall v. Scott, 610 F.3d 701, 707 n.2 (11th Cir.

2010) (“[C]omplaints . . . must now contain either direct or inferential allegations

respecting all the material elements necessary to sustain a recovery under some

viable legal theory.” (internal quotations omitted)); Am. Dental Ass’n v. Cigna

Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)).

Plaintiffs allege that the Carry Law “interferes with the free exercise of

religion by Plaintiffs by prohibiting them from engaging in activities in a place of

worship when those activities are generally permitted throughout the state.” Am.

Compl. at ¶¶ 39, 42. This so-called prohibition applies to anyone who enters a

place of worship—regardless of the person’s religious preference. Count 2 is

styled as both a facial challenge, see United States v. Salerno, 481 U.S. 739, 745,

107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697 (1987) (holding that, to succeed on a

facial challenge, a plaintiff must prove “that no set of circumstances exists under

16
 Case: 11-10387 Date Filed: 07/20/2012 Page: 17 of 40

which the [statute] would be valid,” or in other words, that the law is

unconstitutional in all of its applications.”),19 and an as-applied challenge.20

We conclude that the Amended Complaint fails to state a Free Exercise

Clause challenge because Plaintiffs omit any factual matter showing how the

Carry Law burdens a sincerely held religious belief. Plaintiffs argue that such an

allegation is unnecessary if a law is subject to strict scrutiny because it is not

19
While Salerno is often criticized, its holding remains binding precedent, which we
faithfully apply here. See Gulf Power Co. v. United States, 187 F.3d 1324, 1336 n.9 (11th Cir.
1999) (noting that three current or former Supreme Court Justices— retired Justice Souter,
Justice Ginsburg, and retired Justice Stevens— have questioned Salerno’s “no set of
circumstances” formulation of the facial challenge standard); see also Fla. League of Prof’l
Lobbyists, Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir. 1996) (discussing “how high the threshold
for facial invalidation should be set” and recognizing the substantial disagreement among the
Court over whether a facial challenge should require proof that a law is unconstitutional in all
applications or merely most of its applications).
20
The Amended Complaint does not state an as-applied challenge. Plaintiffs argue that
the Carry Law, as applied to them, violates their constitutional rights, even though the Carry Law
has not yet been applied to them. To us, this appears to be an inherent contradiction. Compare
Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009) (“Because [an as-
applied] challenge asserts that a statute cannot be constitutionally applied in particular
circumstances, it necessarily requires the development of a factual record for the court to
consider.” (citing Siegel v. LePore, 234 F.3d 1163, 1171 (11th Cir. 2000))) with Am. Charities
for Reasonable Fundraising Reg., Inc. v. Pinellas County, 221 F.3d 1211, 1214 (11th Cir. 2000)
(“To establish their standing to bring an as-applied challenge [in the context of a pre-enforcement
challenge], [p]laintiffs need to demonstrate that a ‘credible threat of an injury exists,’ not just a
speculative threat which would be insufficient for Article III purposes.” (quoting Kirby v.
Siegelman, 195 F.3d 1285, 1290 (11th Cir. 1999)). Even taking the language in American
Charities at face value—that somehow it is possible to bring an as-applied challenge in a pre-
enforcement review of a statute that has yet to be applied—we believe that there are few
situations where that type of challenge would prevail. Such a situation could arise when the
factual context of the challenge is so clear and uncontroverted that there is no question as to how
the statute will be applied. If this is the case, a plaintiff’s complaint must include all of the
factual allegations necessary to clearly illustrate the context in which the statute will be applied,
which Plaintiffs certainly failed to do here.

17
 Case: 11-10387 Date Filed: 07/20/2012 Page: 18 of 40

neutral or generally applicable.21 The problem with that argument is that it

misconstrues clear, well-established First Amendment precedent from both the

21
As Plaintiffs correctly observe, the Supreme Court has identified two standards of
review that are to be used, depending on the type of law at issue in a First Amendment challenge.
If a law is one that is neutral and generally applicable, then rational basis scrutiny should be
applied, requiring that the plaintiff show that there is not a legitimate government interest or that
the law is not rationally related to protect that interest. See Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217, 2226, 124 L. Ed. 2d 472 (1993) (“In
addressing the constitutional protection for free exercise of religion, our cases establish the
general proposition that a law that is neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the incidental effect of burdening a
particular religious practice.” (citing Empl’t Div., Dept. of Human Res. of Ore. v. Smith, 494
U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990)). If, however, a law is not neutral or
generally applicable, either because the law is facially discriminatory or, alternatively, because
“the object of [the] law is to infringe upon or restrict practices because of their religious
motivation,” then strict scrutiny is the proper framework, which would then require the State to
show there is a compelling governmental interest and that the law is narrowly tailored. See id. at
531–32, 113 S. Ct. at 2225 (“Neutrality and general applicability are interrelated, and, as
becomes apparent in this case, failure to satisfy one requirement is a likely indication that the
other has not been satisfied. A law failing to satisfy these requirements must be justified by a
compelling governmental interest and must be narrowly tailored to advance that interest.”).

18
 Case: 11-10387 Date Filed: 07/20/2012 Page: 19 of 40

Supreme Court and this court.22 Given that precedent, they have failed to state a

plausible First Amendment claim.

B.

1.

First Amendment Free Exercise Clause precedent is clear: a plaintiff must

allege a constitutionally impermissible burden on a sincerely held religious belief

to survive a motion to dismiss. This is so because, as a threshold issue—before a

court even considers whether a law is subject to the rational basis test or,

alternatively, strict scrutiny—a court must be able to determine that the protection

of the Free Exercise Clause is triggered.23

22
Plaintiffs consistently maintained, both before the District Court and this court, that
they need not allege that a sincerely held religious belief was burdened in any way. Appellants’
Br. at 15. In fact, before the District Court, Plaintiffs expressly denied that they were alleging
any impact on their religious beliefs:

Defendants insist that free exercise challenges must involve a statute that
“impermissibly burden[s] one of [a plaintiff’s] sincerely held religious beliefs.”
The cases that apply Defendants’ argument involve laws that are neutral and of
general applicability. Defendants admit their law is neither neutral nor generally
applicable, but they have failed to cite a single case where a law that is not neutral
toward religion required a showing of a burden on a sincerely held religious
belief. In cases where the law at issue is not neutral, there is no burden test.

Pls. Resp. to Supplemental Br. Defs. State of Georgia and Gov. Sonny Perdue in Supp. of Defs.
Mot. to Dismiss at 13–14; see also Pls. Br. Supp. Mot. Prelim. Inj. at 10 (“[I]t is true that
Plaintiffs do not assert that their religious beliefs require them to carry guns to ‘places of
worship’[.]”).
23
We need not, and do not, decide whether the Carry Law is subject to strict scrutiny, as
Plaintiffs suggest, or rational basis scrutiny. We merely conclude that even if strict scrutiny did

19
 Case: 11-10387 Date Filed: 07/20/2012 Page: 20 of 40

The Supreme Court has reiterated time and time again that personal

preferences and secular beliefs do not warrant the protection of the Free Exercise

Clause. See Frazee v. Illinois Dep’t of Employment Sec., 489 U.S. 829, 833, 109

S. Ct. 1514, 1517, 103 L. Ed. 2d 914 (1989) (“There is no doubt that ‘[o]nly

beliefs rooted in religion are protected by the Free Exercise Clause[.]’ Purely

secular views do not suffice.” (quoting Thomas v. Review Bd. of Ind. Emp’t. Sec.

Div., 450 U.S. 707, 713, 101 S. Ct. 1425, 1430, 67 L.Ed.2d 624 (1981)));

Wisconsin v. Yoder, 406 U.S. 205, 215–216, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15

(1972). Put another way, a complaint fails to state a Free Exercise claim if it does

not allege that (1) the plaintiff holds a belief, not a preference, that is sincerely

held and religious in nature, not merely secular; and (2) the law at issue in some

way impacts the plaintiff’s ability to either hold that belief or act pursuant to that

belief. See Church of the Lukumi Babalu Aye, 508 U.S. at 532, 113 S. Ct. at 2226

(“At a minimum, the protections of the Free Exercise Clause pertain if the law at

issue discriminates against some or all religious beliefs or regulates or prohibits

conduct because it is undertaken for religious reasons.”).

apply to this challenge, Plaintiffs would not prevail.

20
 Case: 11-10387 Date Filed: 07/20/2012 Page: 21 of 40

Despite Plaintiffs’ arguments to the contrary, the Supreme Court’s Church

of the Lukumi Babalu24 decision reaffirms that to survive a motion to dismiss all

Free Exercise Clause challenges must include allegations that the law at issue

creates a constitutionally impermissible burden on a sincerely held religious

belief.25 This court has followed the Supreme Court’s lead, see Watts v. Fla. Int’l

24
In Church of the Lukumi Babalu, the Court, applying strict scrutiny, held that a city
ordinance that prohibited the sacrifice of animals violated the Free Exercise Clause of petitioners
who were members of a Santeria religion. See Church of the Lukumi Babalu Aye, 508 U.S. at
524, 113 S. Ct. at 2222. The Court found that the Santeria religion employs animal sacrifice as a
principal form of devotion. Id. Because the ordinance had an impermissible object to burden the
sincerely held religious beliefs of the Santeria religion, it violated the protections of the First
Amendment. Id.
25
We focus on the opinion’s introduction to part II. In this introduction the Court
concludes, “We must consider petitioners’ First Amendment claim.” Church of the Lukumi
Babalu Aye, 508 U.S. at 531, 113 S. Ct. at 2226. This, in turn, leads us to ask another question:
what threshold issues did the Supreme Court decide in order to reach its conclusion that the Free
Exercise Clause was sufficiently implicated such that it needed to consider the petitioners’ First
Amendment claim? We start by quoting the introduction in its entirety:

The Free Exercise Clause of the First Amendment, which has been applied to the
States through the Fourteenth Amendment, provides that “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof . . . .” The city does not argue that Santeria is not a “religion” within the
meaning of the First Amendment. Nor could it. Although the practice of animal
sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable,
logical, consistent, or comprehensible to others in order to merit First Amendment
protection.” Given the historical association between animal sacrifice and
religious worship, petitioners’ assertion that animal sacrifice is an integral part of
their religion “cannot be deemed bizarre or incredible.” Neither the city nor the
courts below, moreover, have questioned the sincerity of petitioners’ professed
desire to conduct animal sacrifices for religious reasons. We must consider
petitioners’ First Amendment claim.

Id. at 531, 113 S. Ct. at 2225–26 (internal references omitted) (internal quotations omitted).

21
 Case: 11-10387 Date Filed: 07/20/2012 Page: 22 of 40

Univ., 495 F.3d 1289, 1294 (11th Cir. 2007) (Carnes, J.) (“To plead a valid free

exercise claim, [a plaintiff] must allege that the government has impermissibly

burdened one of his ‘sincerely held religious beliefs.’” (quoting Frazee v. Ill.

Dep’t of Emp’t. Sec., 489 U.S. 829, 834, 109 S. Ct. 1514, 1517, 103 L. Ed. 2d 914

By deconstructing this paragraph sentence by sentence, we see that the Supreme Court
engaged in exactly the analysis that Plaintiffs claim is inapposite to a law subject to strict
scrutiny. The Court first cites the overarching rule at issue—the First Amendment. Id. (“The
Free Exercise Clause of the First Amendment, which has been applied to the States through the
Fourteenth Amendment, provides that ‘Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof[.]’” (internal references omitted)). Next, the
Court sets out that what is at issue is religious in nature, id. (“The city does not argue that
Santeria is not a “religion” within the meaning of the First Amendment. Nor could it.”), and that
there is a religious belief, not merely a preference at stake, id. (“Although the practice of animal
sacrifice may seem abhorrent to some, ‘religious beliefs need not be acceptable, logical,
consistent, or comprehensible to others in order to merit First Amendment protection.’” (quoting
Thomas, 450 U.S. at 714, 101 S. Ct. at 1430. The Court then establishes that this religious belief
is sincerely held. Id. (“Neither the city nor the courts below, moreover, have questioned the
sincerity of petitioner’ professed desire to conduct animal sacrifices for religious reasons.”).
Finally, the Court illustrates how the sincerely held religious belief at issue (animal sacrifice) is
burdened by the governmental regulation (prohibiting animal sacrifice). Id. at 526–31, 113 S. Ct.
at 2222–25 (explaining the Santeria religion and, in light of the conflict of these beliefs with the
ordinances described by the court immediately preceding the introduction, turning to the merits
of the First Amendment claim).

22
 Case: 11-10387 Date Filed: 07/20/2012 Page: 23 of 40

(1989))), and our sister circuits are in accord with our position.26 With this

pleading issue now clear, we turn to Plaintiffs’ Amended Complaint.

2.

To be brief, the Amended Complaint fails to state a claim for relief under

the First Amendment. See Iqbal, 556 U.S. at —, 129 S. Ct. at 1949. We searched

the Amended Complaint to no avail in an attempt to find factual allegations that

could possibly be construed as alleging that the Carry Law imposes a

constitutionally impermissible burden on one of Plaintiffs’ sincerely held religious

beliefs. At various points, Plaintiffs allege that they would like to carry a handgun

in a place of worship for the protection either of themselves, their family, their

flock, or other members of the Tabernacle. Plaintiffs conclude by alleging that the

Carry Law interferes with their free exercise of religion by prohibiting them from

26
See Parker v. Hurley, 514 F.3d 87, 99 (1st Cir. 2008) (“Even if [Employment Division,
Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L .Ed.
2d 876 (1990),] largely set aside in free exercise jurisprudence, at least in some contexts, ‘the
balancing question—whether the state’s interest outweighs the plaintiff’s interest in being free
from interference,’ it did not alter the standard constitutional threshold question. That question is
‘whether the plaintiff’s free exercise is interfered with at all.’” (citation omitted)); Levitan v.
Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (“[T]he First Amendment is implicated when a
law or regulation imposes a . . . burden on the litigant’s religious practice. Our cases make clear
that this threshold showing must be made before the First Amendment is implicated.”);
Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542, 557 (10th Cir. 1997) (“To state a
claim for relief under the Free Exercise Clause, [a plaintiff] must allege something more than the
fact the song lyrics and performance sites offended her personal religious beliefs. She must
allege facts demonstrating the challenged action created a burden on the exercise of her
religion.”).

23
 Case: 11-10387 Date Filed: 07/20/2012 Page: 24 of 40

engaging in activities in a place of worship when those activities are generally

permitted throughout the State. That Plaintiffs “would like” to carry a firearm in

order to be able to act in “self-defense” is a personal preference, motivated by a

secular purpose. As we note supra, there is no First Amendment protection for

personal preferences; nor is there protection for secular beliefs. United States v.

DeWitt, 95 F.3d 1374, 1375 (8th Cir. 1996) (“Nevertheless, the Free Exercise

Clause does not protect purely secular views or personal preferences.” (citing

Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S. at 833, 109 S. Ct. at 1517)). The

allegations in the Amended Complaint, as Plaintiffs chose to frame their case, do

not state a Free Exercise claim.27

In sum, conclusory allegations that the Carry Law interferes with Plaintiffs’

free exercise of religion are not sufficient to survive a motion to dismiss. Their

27
After arguing before the District Court on numerous occasions that they did not have
to allege a constitutionally impermissible burden on a sincerely held religious belief, Plaintiffs
chose to include additional facts with their motion for summary judgment. These additional facts
do not appear in the Amended Complaint. It is well-settled in this circuit that a plaintiff may not
amend the complaint through argument at the summary judgment phase of proceedings. See
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam) (“A
plaintiff may not amend [his or her] complaint through argument in a brief opposing summary
judgment.”); see also Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th
Cir. 2006) (“At the summary judgment stage, the proper procedure for plaintiffs to assert a new
claim is to amend the complaint in accordance with Fed. R. Civ. P. 15(a).” (quoting Gilmour,
382 F.3d at 1315)).

24
 Case: 11-10387 Date Filed: 07/20/2012 Page: 25 of 40

Free Exercise claim is not plausible, see Iqbal, 556 U.S. —, 129 S. Ct. at 1949,

and the District Court correctly dismissed it.28

IV.

We now consider Plaintiffs’ Second Amendment claims, in Counts 3 and 4,

that the Carry Law infringed on their right to bear arms. The Second Amendment

reads, “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. The Supreme Court drastically changed the impact of the Second

Amendment in the wake of two of its recent decisions: District of Columbia v.

Heller29 and McDonald v. City of Chicago.30

In Heller, the Court held for the first time that the Second Amendment

“codified a pre-existing” individual right to keep and bear arms. 554 U.S. at 592,

128 S. Ct. at 2797. In so holding, the Court struck down a prohibition of the

possession of operable handguns in one’s home.31 The Court reached its holding

28
The District Court addressed, and dismissed, the Tabernacle’s claim that the Carry
Law impermissibly encroaches on its ability to manage its internal affairs. The Tabernacle failed
to include in its brief on appeal an argument that the District Court erred in dismissing the claim.
We therefore consider that argument abandoned.
29
554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
30
— U.S. —, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).
31
The District of Columbia Code provision at issue in Heller prohibited handgun
possession in two ways: the District of Columbia (1) required the registration of all firearms and

25
 Case: 11-10387 Date Filed: 07/20/2012 Page: 26 of 40

after an extensive discussion of the background of the Second Amendment at the

time of drafting, reasoning that, while “self-defense had little to do with

codification; it was the central component of the right itself.” Id. at 599, 128 S.

Ct. at 2801 (emphasis in original). The Court concluded that the District of

Columbia’s ban made it impossible to use a handgun for the “core lawful purpose

of self-defense.” Id. at 630, 128 S. Ct. at 2818. The Court went to great lengths to

emphasize the special place that the home—an individual’s private

property—occupies in our society. See Heller, 554 U.S. at 628–29, 128 S. Ct. at

2817–18 (emphasizing that “the need for defense of self, family, and property is

most acute” in the home and emphasizing the special role of handguns as “the

most preferred firearm in the nation to ‘keep’ and use for protection of one’s home

and family” (internal quotation marks omitted)). McDonald made the “Second

Amendment binding on the States and their subdivisions,” through the Due

Process Clause of the Fourteenth Amendment. See McDonald, 130 S. Ct. 3046.32

prohibited the registration of handguns, and (2) enacted a ban on keeping an operable
firearm—the law stated that a firearm must be kept “unloaded and disassembled or bound by a
trigger lock or similar device.” Heller, 554 U.S. at 630, 128 S. Ct. at 2818.
32
Plaintiffs must establish that there is some type of state action at issue. The state
action in this case is the enactment of the Carry Law and that statute’s enforcement through the
arrest, criminal prosecution, and conviction of an individual. See Hines v. Davidowitz, 312 U.S.
52, 80, 61 S. Ct. 399, 411, 85 L. Ed. 581 (1941) (“The Fourteenth Amendment guarantees the
civil liberties of aliens as well as of citizens against infringement by state action in the enactment
of laws and their administration as well.”). A property owner who engages in self-help is not a
state actor. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157, 98 S. Ct. 1729, 56 L. Ed. 2d 185

26
 Case: 11-10387 Date Filed: 07/20/2012 Page: 27 of 40

In Counts 3 and 4 Plaintiffs allege that “[the Carry Law] infringes on the

rights of Plaintiffs to keep and bear arms, in violation of the Second Amendment,

by prohibiting them from possessing weapons in a place of worship.” Am. Compl.

at ¶¶ 45, 48. As with their First Amendment claims, Plaintiffs brought both a

“direct action,” in Count 3, and a § 1983 action, in Count 4. Many of the same

pleading deficiencies of the Amended Complaint that we found in Plaintiffs’ First

Amendment claims (Counts 1 and 2) also plague their Second Amendment claims

(Counts 3 and 4); we need not reiterate those problems.33 Our inquiry boils down

to whether Plaintiffs’ § 1983 claim entitles them to declaratory relief against the

Governor.

Plaintiffs frame their Second Amendment attack as both a facial and an as-

applied challenge in a pre-enforcement review. We view the Second Amendment

(1978) (concluding that a private party’s actions can be treated as state action only when the
function performed is “traditionally exclusively reserved to the State.” (internal quotation marks
omitted)); White v. Scrivner Corp., 594 F.2d 140, 142 (5th Cir. 1979) (denying that private
security personnel were acting under the color of state law in “detaining [plaintiffs] as suspected
shoplifters, in searching their purses, and in detaining them after the gun was found, even though
the defendants no longer had any reason to believe they were shoplifting” because the court
reasoned that “[a] merchant’s detention of persons suspected of stealing store property simply is
not an action exclusively associated with the state. Experience teaches that the prime
responsibility for protection of personal property remains with the individual.” (emphasis
added)). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
33
For a review of these deficiencies, see the introduction to part III, supra.

27
 Case: 11-10387 Date Filed: 07/20/2012 Page: 28 of 40

challenge as essentially raising only a facial challenge.34 As we stated with respect

to Plaintiffs’ Free Exercise claim, Plaintiffs must show that the Carry Law is

unconstitutional in all applications to prevail in their facial challenge. See United

States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). One

common application of the Carry Law would be when a license holder wants to

carry a firearm in a place of worship where management of the place of worship

34
We believe that the Amended Complaint fails to plead an as-applied Second
Amendment challenge for the same reason we rejected the as-applied First Amendment
challenge. The Carry Law has not been applied to Plaintiffs, and they have not included
sufficient allegations to show how the Carry Law would be applied in their specific case. See
supra note 20; Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009)
(“‘An as-applied challenge . . . addresses whether ‘a statute is unconstitutional on the facts of a
particular case or to a particular party.’ Because such a challenge asserts that a statute cannot be
constitutionally applied in particular circumstances, it necessarily requires the development of a
factual record for the court to consider.”). As a result, we view Plaintiffs as challenging the
Carry Law as void on its face only.
Like our sister circuits, we believe a two-step inquiry is appropriate: first, we ask if the
restricted activity is protected by the Second Amendment in the first place; and then, if necessary,
we would apply the appropriate level of scrutiny. See Heller v. District of Columbia, 670 F.3d
1244, 1252 (D.C. Cir. 2011) (adopting two-step inquiry); Ezell v. City of Chicago, 651 F.3d 684,
701–04 (7th Cir. 2011) (noting that “the threshold inquiry in some Second Amendment cases
will be a ‘scope’ question: Is the restricted activity protected by the Second Amendment in the
first place,” and then moving to a second step, if necessary, applying the appropriate level of
scrutiny); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (noting that “a two-part
approach to Second Amendment claims seems appropriate under Heller,” requiring first a
determination that the law at issue imposes a burden on conduct falling within the scope of the
Second Amendment, and then applying the requisite level of scrutiny); United States v. Reese,
627 F.3d 792, 800–01 (10th Cir. 2010) (adopting a similar two-step analytical framework);
United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010) (adopting a two-pronged approach
where “[f]irst, we ask whether the challenged law imposes a burden on conduct falling within the
scope of the Second Amendment’s guarantee. If it does not, our inquiry is complete. If it does,
we evaluate the law under some form of means-end scrutiny.”). In this case, we need only reach
the first step. In reaching this conclusion, we obviously need not, and do not, decide what level
of scrutiny should be applied, nor do we decide whether a place of worship is a “sensitive place”
under Heller, 554 U.S. at 626, 128 S. Ct. at 2817.

28
 Case: 11-10387 Date Filed: 07/20/2012 Page: 29 of 40

prohibits carrying. To state a facial challenge, therefore, Plaintiffs must take the

position that the Second Amendment protects a right to bring a firearm on the

private property of another against the wishes of the owner. Put another way,

Plaintiffs must argue that the individual right protected by the Second

Amendment, in light of Heller and McDonald, trumps a private property owner’s

right to exclusively control who, and under what circumstances, is allowed on his

or her own premises.35 In short, we read Plaintiffs’ claim to assume the following:

management of a place of worship is likely to bar license holders from carrying an

unsecured firearm on the premises; the license holders are unlikely to comply with

management’s instructions; management is likely to report such conduct to law

enforcement; the license holders are likely to be arrested by for their refusal to

comply with management’s instructions; and the arrest establishes a Second

Amendment violation.36

Heller commands that, in passing on a Second Amendment claim, courts

must read the challenged statute in light of the historical background of the

35
There is nothing in the record that would allow us to draw a conclusion that the
Tabernacle is anything other than a purely private religious organization that owns property in its
non-profit corporation legal form. We proceed under this assumption.
36
The plain language of the Carry Law belies any argument that all firearms are per se
prohibited from a place of worship; quite simply, this is not the “ban” that Plaintiffs make it out
to be. Appellants’ Br. at 14.

29
 Case: 11-10387 Date Filed: 07/20/2012 Page: 30 of 40

Second Amendment. See 554 U.S. at 592, 128 S. Ct. at 2797 (“We look to [the

historical background of the Second Amendment] because it has always been

widely understood that the Second Amendment, like the First and Fourth

Amendments, codified a pre-existing right. The very text of the Second

Amendment implicitly recognizes the pre-existence of the right and declares only

that it ‘shall not be infringed.’” (emphasis omitted)). Because a place of worship

is private property, not public property, it is particularly important that we

understand the individual right to bear arms in light of the historical background

of criminal law, tort law, and property law; for that body of law establishes the

rights of private property owners. In subpart A, we describe this historical

background. In subpart B, we identify the scope of any pre-existing right to bear

arms on the private property of another.

A.

We begin our review by describing the historical background of the Second

Amendment.

In the Commentaries on the Laws of England, William Blackstone

described a private property owner’s right to exclusive control over his or her own

property as a “sacred and inviolable right[].” 1 William Blackstone,

Commentaries *140. Blackstone wrote,

30
 Case: 11-10387 Date Filed: 07/20/2012 Page: 31 of 40

There is nothing which so generally strikes the imagination, and
engages the affections of mankind, as the right of property; or that
sole and despotic dominion which one man claims and exercises over
the external things of the world, in total exclusion of the right of any
other individual in the universe.

2 id. *2. Blackstone also discussed how a license holder who enters private

property does not have the same rights as a property owner. See id. (emphasizing

that the right of a property owner is in “total exclusion of the right of any other

individual in the universe”). In other words, a guest is able to enter or stay on

private property only with the owner’s permission. A guest is removable at the

owner’s discretion.37

Turning to common law tort principles, if a person enters upon the land of

another without the owner’s permission or if a person remains on the land against

the owner’s wishes, then the person becomes a trespasser. At common law, this

status implicated the law of torts—allowing the owner to initiate a civil action

37
As a matter of reference, it is worth pointing out that Georgia adopted this position.
Since at least the nineteenth century, Georgia courts have expressly recognized that property
owners possess a right to exclude others from one’s private land. See Fluker v. Ga. R.R. &
Banking Co., 8 S.E. 529, 530 (Ga. 1889) (noting that “the very nature of property involves a right
of exclusive dominion over it in the owner.”); see also Navajo Constr. v. Brigham, 608 S.E.2d
732, 733 (Ga. App. 2004) (stating that a private property owner “has the right ‘to possess, use,
enjoy, and dispose of it, and the corresponding right to exclude others from [its] use.’” (quoting
Woodside v. City of Atlanta, 103 S.E.2d 108, 115 (Ga. 1958)). These principles are reflected in
the Carry Law. See O.C.G.A. § 16-11-127(c) (noting that “private property owners or persons in
legal control of property through a lease, rental agreement, licensing agreement, contract, or any
other agreement to control access to such property” may forbid the possession of a weapon).

31
 Case: 11-10387 Date Filed: 07/20/2012 Page: 32 of 40

against the trespasser. See 2 Frederick Pollock & Frederic William Maitland, The

History of English Law 41 (Legal Classic Library special ed. 1982) (2d ed. 1899)

(noting that one should look to “the law of crimes” and “the law of torts and civil

injuries”).38 Blackstone elaborated on the private wrong of trespass:

But in the limited and confined sense, in which we are at present to
consider [the wrong of trespass], it signifies no more than an entry on
another man’s ground without a lawful authority, and doing some
damage, however inconsiderable, to his real property. For the right of
meum and tuum, or property, in lands being once established, it
follows as a necessary consequence, that this right must be exclusive;
that is, that the owner may retain to himself the sole use and
occupation of his soil: every entry therefore thereon without the
owner’s leave, and especially if contrary to his express order, is a
trespass or transgression.

38
Prosser and Keeton similarly embraces the exclusive right of a property owner:

The possessor of land has a legally protected interest in the exclusiveness of his
possession. In general, no one has any right to enter without his consent, and he is
free to fix the terms on which that consent will be given. Intruders who come
without his permission have no right to demand that he provide them with a safe
place to trespass, or that he protect them in their wrongful use of his property.

W. Page Keeton et al., Prosser and Keeton on Torts § 58, at 393 (5th ed. 1984).

32
 Case: 11-10387 Date Filed: 07/20/2012 Page: 33 of 40

3 William Blackstone, Commentaries *209.39 Implied in this private action, as

Blackstone explained it, is an exclusive right of an owner to eject an individual

from the owner’s property and initiate a civil trespass action.40

39
We also note that an owner may be subject to civil liability for their failure to protect
guests from harm. For example, depending on the place of worship’s knowledge of particular
risks posed by a license holder, the place of worship may be subject to tort liability if it fails to
take sufficient precautions to ensure that the other worshipers in attendance are not endangered.
The movement to impose liability on land owners—and thereby give some legal rights, even if
minimal, to persons entering another’s land—slowly gained steam both in England and in the
United States throughout the seventeenth, eighteenth, and early nineteenth centuries. See 2
Edward Coke, Institutes of the Laws of England *316 (recognizing, in treatises first published
from 1628 to 1644, that a tort action could lie against a landowner who used excessive force to
repel a trespasser); see also Townsend v. Wathen, (1808) 103 Eng. Rep. 579 (K.B.) (recognizing
that a landowner who set a trap that injured an entrant’s animal on his or her property could be
held liable); Bird v. Holbrook, (1828) 130 Eng. Rep. 911 (C.P.) (holding that an owner who left a
spring gun to injure a trespasser could be held liable). The common law eventually evolved into
a three-tiered framework: individuals were classified as either an invitee, a licensee, or a
trespasser. The landowner owed a duty that corresponded to the individual’s classification. Over
time, some states have moved away from these common law rules; it is safe to say, though, that
currently all states impose certain duties on a property owner (or its lessee). Georgia courts have
consistently held that a private property owner owes a duty of care to those on its property
pursuant to an “express or implied invitation” and to “licensees,” see O.C.G.A. §§ 51–3–1 to
51–3–2, and that this duty includes a legal obligation to protect such persons from the
foreseeable dangers posed by other invitees or licensees. See Moon v. Homeowners’ Ass’n of
Sibley Forest, Inc., 415 S.E.2d 654, 657 (Ga. App. 1992) (“‘An owner of premises is liable to a
guest . . . when the owner has reason to anticipate the misconduct of the guest inflicting the
injury.’” (alteration in original) (quoting Veterans Org. of Fort Oglethorpe v. Potter, 141 S.E.2d
230, 233 (Ga. App. 1965))).
40
Likewise, Georgia has long recognized a private action for trespass. See O.C.G.A.
§ 51-9-1 (“The right of enjoyment of private property being an absolute right of every citizen,
every act of another which unlawfully interferes with such enjoyment is a tort for which an action
shall lie.”); Neal v. Haygood, 1 Kelly 514, 1846 WL 1205 at *2 (Ga. 1846) (“Where the cause of
action is a tort, or arises, ex delicto, supposed to be by force and against the king’s peace, then
the action dies; as battery, false imprisonment, trespass, words, &c., escape against the sheriff,
and many others of the same kind.” (internal quotation marks omitted)).

33
 Case: 11-10387 Date Filed: 07/20/2012 Page: 34 of 40

In addition, criminal law principles drawn from the common law reinforce

the fundamental nature of a property owner’s rights. In The History of English

Law, Frederick Pollock & Frederic William Maitland note:

In the first place, the protection given to possession may be merely a
provision for the better maintenance of peace and quiet. It is a
prohibition of self-help in the interest of public order. The possessor
is protected, not on account of any merits of his, but because the
peace must be kept; to allow men to make forcible entries on land or
to seize goods without form of law, is to invite violence.

2 Pollock & Maitland, supra, at 41. Blackstone reiterates this position, describing

trespass as an “offence against the public peace.” 4 William Blackstone,

Commentaries *147 (emphasis added). The criminal offense of trespass, as set

forth in several ancient statutes, included “any forcible entry, or forcible detainer

after peaceable entry, into any lands.” Id. Pollack and Maitland offer a similar

view: “[T]here will be a trespass with force and arms if a man’s body, goods or

land have been unlawfully touched.” 2 Pollock & Maitland, supra, at 526.41

41
We note that Georgia has adopted these common law principles as cornerstone tenets
of its criminal code. To wit, the Georgia Code provides that

A person commits the offense of criminal trespass when he or she knowingly and
without authority:

(1) Enters upon the land or premises of another person . . . for an unlawful
purpose; [or]
...
(3) Remains upon the land or premises of another person . . . after
receiving notice from the owner, rightful occupant, or, upon proper

34
 Case: 11-10387 Date Filed: 07/20/2012 Page: 35 of 40

B.

Thus, property law, tort law, and criminal law provide the canvas on which

our Founding Fathers drafted the Second Amendment. A clear grasp of this

background illustrates that the pre-existing right codified in the Second

Amendment does not include protection for a right to carry a firearm in a place of

worship against the owner’s wishes. Quite simply, there is no constitutional

infirmity when a private property owner exercises his, her, or its—in the case of a

place of worship—right to control who may enter, and whether that invited guest

can be armed and the State vindicates that right. This situation, being a likely

application of the Carry Law, illustrates that Plaintiffs cannot show that all or most

applications of the Carry Law are unconstitutional. See United States v. Salerno,

481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).

A place of worship’s right, rooted in the common law, to forbid possession

of firearms on its property is entirely consistent with the Second Amendment.

Surely, given the Court’s pronouncement that the Second Amendment merely

“codified a pre-existing right,” Plaintiffs cannot contend that the Second

identification, an authorized representative of the owner or rightful
occupant to depart.

O.C.G.A. § 16-7-21(b)(3).

35
 Case: 11-10387 Date Filed: 07/20/2012 Page: 36 of 40

Amendment in any way abrogated the well established property law, tort law, and

criminal law that embodies a private property owner’s exclusive right to be king of

his own castle. By codifying a pre-existing right, the Second Amendment did not

expand, extend, or enlarge the individual right to bear arms at the expense of other

fundamental rights; rather, the Second Amendment merely preserved the status

quo of the right that existed at the time.42 Indeed, numerous colonial leaders, as

well as scholars whose work influenced the Founding Fathers, embraced the

concept that a man’s (or woman’s) right to control his (or her) own private

property occupied a special role in American society and in our freedom. See

William Tudor, Life of James Otis 66–67 (1823) (quoting a speech from 1761

given by James Otis, who stated that “one of the most essential branches of

English liberty is the freedom of one’s house. A man’s house is his castle.”); John

42
We acknowledge that certain colonies, including Georgia, enacted laws requiring the
possession of firearms in a place of worship at one point or another. The Georgia statute read as
follows: “WHEREAS it is necessary for the security and defence of this province from internal
dangers and insurrections, that all persons resorting to places of worship shall be obliged to carry
fire arms.” 19 Allen D. Candler, The Colonial Records of the State of Georgia 137–140 (1910).
Based on the language of Georgia’s statute, the primary motivation for requiring attendance at a
place of worship with a firearm was likely a practical one; that is, the colonial government
identified a time when much of the community would be gathered in one location—each Sunday
at a place of worship for services—to ensure that individuals both possessed the equipment
necessary for defense and kept it in a state of readiness should their services be called upon to
defend the community against an internal or external threat. That a statute such as this one
appeared on the books of several colonies at various times does not indicate that the Second
Amendment enshrined a constitutional right to preempt the wishes of a place of worship in order
to carry unsecured firearms in contravention of an owner’s wishes.

36
 Case: 11-10387 Date Filed: 07/20/2012 Page: 37 of 40

Locke, Two Treatises on Government, 209–10 (1821) (“[Property] being by him

removed from the common state nature hath placed it in, it hath by this labour

something annexed to it, that excludes the common right of other men.”).

An individual’s right to bear arms as enshrined in the Second Amendment,

whatever its full scope, certainly must be limited by the equally fundamental right

of a private property owner to exercise exclusive dominion and control over its

land. The Founding Fathers placed the right to private property upon the highest

of pedestals, standing side by side with the right to personal security that

underscores the Second Amendment. As Blackstone observed,

[T]hese [fundamental rights] may be reduced to three principal or
primary articles; the right of personal security, the right of personal
liberty; and the right of private property: because as there is no other
known method of compulsion, or of abridging man’s natural free will,
but by an infringement or diminution of one or other of these
important rights, the preservation of these, inviolate, may justly be
said to include the preservation of our civil immunities in their largest
and most extensive sense.

1 William Blackstone, Commentaries *129.

Blackstone talks not of sacrificing one of the “principal or primary” rights

for another, but rather of “preservation of these, inviolate.” Id. (emphasis added).

He concludes that all of the three fundamental rights of personal security, personal

liberty, and private property can, and must, coexist together to fully protect civil

37
 Case: 11-10387 Date Filed: 07/20/2012 Page: 38 of 40

liberties. Id. It is simply beyond rational dispute that the Founding Fathers,

through the Constitution and the Bill of Rights, sought to protect the fundamental

right of private property, not to eviscerate it. See John Adams, Defence of the

Constitutions of Government of the United States (1787), reprinted in 6 John

Adams, The Works of John Adams, 3, 9 (Charles Francis Adams ed., 1851) (“The

moment the idea is admitted into society that property is not as sacred as the laws

of God, and that there is not a force of law and public justice to protect it, anarchy

and tyranny commence.”); James Madison, Property (1792), reprinted in 6 The

Writings of James Madison 101, 102 (Gaillard Hunt ed., 1906) (“Government is

instituted to protect property of every sort; as well that which lies in the various

rights of individuals, as that which the term particularly expresses. This being the

end of government, that alone is a just government which impartially secures to

every man whatever is his own.” (emphasis in original)); Thomas Paine, Essay

dated December 23, 1776, reprinted in Thomas Paine, The Crisis 8 (2009 ed.)

(1776) (“[I]f a thief breaks into my house, burns and destroys my property, and

kills or threatens to kill me, or those that are in it, and to “bind me in all cases

whatsoever” to his absolute will, am I to suffer it? What signifies it to me, whether

he who does it is a king or a common man; my countryman or not my countryman;

whether it be done by an individual villain, or an army of them? If we reason to

38
 Case: 11-10387 Date Filed: 07/20/2012 Page: 39 of 40

the root of things we shall find no difference; neither can any just cause be

assigned why we should punish in the one case and pardon in the other.”).

Plaintiffs, in essence, ask us to turn Heller on its head by interpreting the

Second Amendment to destroy one cornerstone of liberty—the right to enjoy one’s

private property—in order to expand another—the right to bear arms. This we

will not do. If, as Blackstone argues, our concept of civil liberties depends on a

three-legged stool of rights—personal security, personal liberty, and private

property—it would be unwise indeed to cut off one leg entirely only to slightly

augment another. Rather, our task is to read the Second Amendment’s pre-

existing right alongside the equally important rights protected by the Constitution

in order to strengthen all three legs and thereby better secure the foundation of our

liberty. When the Second Amendment is understood in its proper historical

context, it becomes readily apparent that the Amendment codified a pre-existing

right that was circumscribed by the common law rights of an owner under property

law, tort law, and criminal law. Heller’s expounding of the pre-existing right

enshrined in the Second Amendment does nothing to change this.

In sum, to the extent Plaintiffs’ argument implies that the Second

Amendment—in light of the Court’s decisions in Heller and

McDonald—somehow abrogates the right of a private property owner—here, a

39
 Case: 11-10387 Date Filed: 07/20/2012 Page: 40 of 40

place of worship—to determine for itself whether to allow firearms on its premises

and, if so, under what circumstances, the argument badly misses the mark. We

conclude that the Second Amendment does not give an individual a right to carry a

firearm on a place of worship’s premises against the owner’s wishes because such

right did not pre-exist the Amendment’s adoption. Enforcing the Carry Law

against a license holder who carries a firearm on private property against the

owner’s instructions would therefore be constitutional. Plaintiffs’ facial challenge

fails because the Carry Law is capable of numerous constitutional applications.

See Salerno, 481 U.S. at 745, 107 S. Ct. at 2100.

V.

For the foregoing reasons, we AFFIRM the District Court’s Rule 12(b)(6)

dismissal of Counts 1 through 4 of the Amended Complaint.

SO ORDERED.

40