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Worman v. Healey

United States Court of Appeals, First Circuit

April 26, 2019

MAURA T. HEALEY, in her official capacity as Attorney General of the Commonwealth of Massachusetts; DANIEL BENNETT, in his official capacity as the Secretary of the Executive Office of Public Safety and Security; KERRY GILPIN, in her official capacity as Superintendent of the Massachusetts State Police, Defendants, Appellees.


          John Parker Sweeney, with whom James Michael Campbell, Richard Paul Campbell, Campbell Campbell Edwards & Conroy PC, . Sky Woodward, James W. Porter, III, Marc A. Nardone, and Bradle T Arant Boult Cummings LLP, were on brief, for appellants.

          Ilya Shapiro, Trevor Burrus, Matthew Larosiere, Joseph G.S. Greenlee, and David B. Kopel on brief for Professors of Second Amendment Law, Cato Institute, Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms, Jews for the Preservation of Firearms Ownership, Millennial Policy Center, and Independence Institute, amici curiae.

          Dan M. Peterson, Dan M. Peterson PLLC, C. D. Michel, Sean A. Brady, Anna M. Barvir, and Michel & Associates, P.C., on brief for Western States Sheriffs' Association, Law Enforcement Legal Defense Fund, Law Enforcement Action Network, International Association of Law Enforcement Firearms Instructors, CRPA Foundation, International Law Enforcement Educators and Trainers Association, and Law Enforcement Alliance of America, amici curiae.

          David H. Thompson, Peter A. Patterson, John D. Ohlendorf, and Cooper & Kirk, PLLC, on brief for National Rifle Association of America, Inc., amicus curiae.

          Julia E. Kobick, Assistant Attorney General, with whom Maura Healey, Attorney General, William W. Porter and Elizabeth Kaplan, Assistant Attorneys General, and Gary Klein, Special Assistant Attorney General, were on brief, for appellees.

          Jonathan K. Baum, Mark T. Ciani, Katten Muchin Rosenman LLP, J. Adams Skaggs, and Hannah Shearer on brief for Giffords Law Center to Prevent Gun Violence, amicus curiae.

          Mariel Goetz, Kimberly A. Mottley, Laura Stafford, and Proskauer Rose LLP, on brief for Brady Center to Prevent Gun Violence, amicus curiae.

          Edward Notis-McConarty, M. Patrick Moore, Jr., Vanessa A. Arslanian, and Hemenway & Barnes LLP on brief for Massachusetts Chiefs of Police Association and Massachusetts Major City Chiefs of Police Association, amici curiae.

          Gurbir S. Grewal, Attorney General of New Jersey, Andrew J. Bruck, Executive Assistant Attorney General, Jeremy M. Feigenbaum and Glenn Moramarco, Assistant Attorneys General, Melissa Medoway, Deputy Attorney General, Xavier Becerra, Attorney General of California, George Jepsen, Attorney General of Connecticut, Matthew P. Denn, Attorney General of Delaware, Russell A. Suzuki, Attorney General of Hawai'i, Tom Miller, Attorney General of Iowa, Brian E. Frosh, Attorney General of Maryland, Ellen F. Rosenblum, Attorney General of Oregon, Josh Shapiro, Attorney General of Pennsylvania, Peter F. Kilmartin, Attorney General of Rhode Island, Mark R. Herring, Attorney General of Virginia, Thomas J. Donovan, Jr., Attorney General of Vermont, Robert W. Ferguson, Attorney General of Washington, Karl A. Racine, Attorney General for the District of Columbia, on brief for states of New Jersey, California, Connecticut, Delaware, Hawai'i, Iowa, Maryland, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia, amici curiae.

          Eric Tirschwell, William J. Taylor, Jr., Mark Anthony Frassetto, Deepak Gupta, Jonathan E. Taylor, and Gupta Wessler PLLC, on brief for Everytown for Gun Safety, amicus curiae.

          Albert W. Wallis, Elizabeth A. Ritvo, Tristan G. Axelrod, Brown Rudnick LLP, Kenneth A. Sweder, and Sweder & Ross LLP, on brief for Jewish Alliance for Law and Social Action, Greater Boston Interfaith Organization, Episcopal Diocese of Massachusetts, Episcopal Diocese of Western Massachusetts, Islamic Society of Boston, Massachusetts Council of Churches, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, and Men of Reform Judaism, amici curiae.

          Ben T. Clements and Clements & Pineault, LLP, on brief for Stop Handgun Violence, MA Coalition to Prevent Gun Violence, and Massachusetts General Hospital Gun Violence Prevention Coalition, amici curiae.

          James Murray, pro se, on brief for James Murray, amicus curiae.

          Before Barron, Circuit Judge, Souter, [*] Associate Justice, and Selya, Circuit Judge.


         This high-profile case involves a constitutional challenge to a Massachusetts law proscribing the sale, transfer, and possession of certain semiautomatic assault weapons and large-capacity magazines (LCMs). See Mass. Gen. Laws ch. 140, §§ 121, 131M (the Act). The plaintiffs assert that they have an unfettered Second Amendment right to possess the proscribed assault weapons and LCMs in their homes for self-defense.[1] The district court granted summary judgment in favor of the defendants (a phalanx of state officials). See Worman v. Healey, 293 F.Supp.3d 251, 271 (D. Mass. 2018). Although our reasoning differs in certain respects from that of the court below, we affirm.

         We assume, without deciding, that the proscribed weapons have some degree of protection under the Second Amendment. We further assume, again without deciding, that the Act implicates the core Second Amendment right of self-defense in the home by law-abiding, responsible individuals. We hold, however, that the Act's burden on that core right is minimal and, thus, the Act need only withstand intermediate scrutiny - which it does.

         I. BACKGROUND

         We start by rehearsing the background and travel of the case. The Massachusetts legislature modeled the Act on the 1994 federal Public Safety and Recreational Firearms Use Protection Act (the federal regulation), Pub. L. No. 103-322, §§ 110101-06, 108 Stat. 1796, 1996-2010 (1994), which is no longer in effect. The federal regulation prohibited the manufacture, transfer, and possession of "semiautomatic assault weapons" and the transfer and possession of "large capacity ammunition feeding devices." Id. §§ 110102-03, 108 Stat. at 1996-2000. For purposes of the federal regulation, the term "semiautomatic assault weapon" was defined to include nineteen specific models, as well as any semiautomatic rifle, pistol, or shotgun with two or more combat-style features or the ability to accept a detachable magazine. Id. § 110102(b), 108 Stat. at 1997-98. The term "large capacity ammunition feeding device" encompassed any magazine or other feeding device that could accept more than ten rounds of ammunition. Id. § 110103(b), 108 Stat. at 1999. The federal regulation specifically exempted, inter alia, assault weapons that were lawfully possessed on the date of its enactment (September 13, 1994), semiautomatic rifles that could not hold more than five rounds of ammunition or accept a detachable magazine holding more than five rounds of ammunition, and a specific list of "long guns most commonly used in hunting and recreational sports." H.R. Rep. No. 103-489, at 20 (1994); see Pub. L. No. 103-322, § 110102(a), 108 Stat. at 1996-97. In explicating the purpose of the federal regulation, Congress stated that semiautomatic assault weapons have "a capability for lethality - more wounds, more serious, in more victims - far beyond that of other firearms in general, including other semiautomatic guns." H.R. Rep. No. 103-489, at 19-20.

         Four years after Congress enacted the federal regulation, the Massachusetts legislature passed a counterpart statute, which made it a crime to sell, transfer, or possess semiautomatic assault weapons as defined by the federal regulation, copies or duplicates of those weapons, and LCMs capable of holding more than ten rounds of ammunition. See Mass. Gen. Laws ch. 140, §§ 121, 131M. The Act contained the same exceptions as the federal regulation, including free passes for weapons lawfully owned on September 13, 1994, and for sundry automatic rifles commonly used for hunting and sport. See id.

         Congress allowed the federal regulation to expire in 2004, but the Massachusetts legislature struck out in a different direction and made the Massachusetts assault weapons regulation permanent that year. In signing the bill into law, then-Governor Romney declared that semiautomatic assault weapons and LCMs "are not made for recreation or self-defense. ...

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