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Worman v. Healey

United States District Court, D. Massachusetts

April 5, 2018

DAVID SETH WORMAN, ANTHONY LINDEN, JASON WILLIAM SAWYER, PAUL NELSON CHAMBERLAIN, GUN OWNERS' ACTION LEAGUE, INC., ON TARGET TRAINING, INC., and OVERWATCH OUTPOST, Plaintiffs,
v.
MAURA 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; and COLONEL KERRY GILPIN, in her official capacity as Superintendent of the Massachusetts State Police, Defendants.

          MEMORANDUM AND ORDER

          WILLIAM G. YOUNG, D.J.

         SECOND AMENDMENT, U.S CONSTITUTION

         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.

         I. THE CONTROLLING LAW

         For most of our history, mainstream scholarship considered the Second Amendment as nothing more than a guarantee that the several states can maintain "well regulated" militias. See, e.g., Lawrence H. Tribe, American Constitutional Law 226 n.6 (1978); Peter Buck Feller & Karl L. Gotting, The Second Amendment: A Second Look, 61 Nw. U. L. Rev. 46, 62 (1966); John Levin, The Right to Bear Arms: The Development of the American Experience, 48 Chi.-Kent L. Rev. 148, 159 (1971).

         Then, in 1999, a United States District Judge held that, in fact, the Second Amendment conferred upon our citizens an individual right to bear arms. See United States v. Emerson, 4 6 F.Supp.2d 598, 602 (N.D. Tex. 1999) (Cummings, J.), rev'd and remanded on other grounds, 270 F.3d 203 (5th Cir. 2001). This determination was upheld. See United States v. Emerson, 270 F.3d 203, 264 (5th Cir. 2001).

         Eventually, the issue found its way to the Supreme Court. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court struck down a District of Columbia provision that made it illegal to possess handguns in the home, holding that the core right guaranteed by the Second Amendment is "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635. Justice Scalia wrote for the five-member majority and his opinion is a tour de force example of his "original meaning" jurisprudence.[1] The Second Amendment, he explained, is comprised of a prefatory clause, "[a] well regulated Militia, being necessary to the security of a free State, ..." and an operative clause, ". . . the right of the people to keep and bear Arms, shall not be infringed." Speaking for the Supreme Court, he went on to offer extensive historical grounding for this interpretation. Id. at 579-600.

         Well aware that he was writing more than two centuries after the words the Supreme Court was interpreting had been adopted as part of our Constitution, Justice Scalia carefully defined the words "bear" and "arms, " giving them the meaning those words bore at the time of the Second Amendment's adoption. Id. at 581-92.

         Speaking for the Supreme Court and focusing on the word "arms, " he clarified that "the right secured by the Second Amendment is not unlimited." Id. at 626. It is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. For example, it is constitutional to prohibit "the possession of firearms by felons and the mentally ill." Id. "[L]aws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" are also presumptively proper under the Second Amendment. Id. at 626-27 & n.26. Another important limitation articulated by the Supreme Court is that the weapons protected under the Second Amendment "were those ' in common use at the time.'" Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)). More specifically, Justice Scalia explained that "weapons that are most useful in military service - M-16 rifles and the like" are not protected under the Second Amendment and "may be banned." Id.

         Justice Scalia well recognized that interpreting the Second Amendment such that military style weapons fell beyond its sweep could lead to arguments that "the Second Amendment right is completely detached from the prefatory clause." Id. He explained, however, that the Supreme Court's interpretation did not belie the prefatory clause because the consonance of the two clauses must be assessed "at the time of the Second Amendment's ratification, " when "the conception of the militia . . . was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty." Id. "Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks." Id. Yet the Supreme Court ruled that "the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right" could not "change [its] interpretation of the right." Id. at 627-28.

         When looking at the prohibition against possession of handguns in the home in Heller, the Supreme Court ruled it unconstitutional because the ban extended "to the home, where the need for self, family, and property is most acute." Id. at 628. The ban also troubled the Supreme Court because "[t]he handgun ban amount[ed] to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose." Id. Accordingly, "[u]nder any of the standards of scrutiny that [the Supreme Court has] applied to enumerated constitutional rights, banning from the home 'the most preferred firearm in the nation to "keep" and use for protection of one's home and family, ' would fail constitutional muster." Id. at 628-29 (quoting Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007)).

         Following Heller, the Supreme Court decided two other landmark Second Amendment cases. In McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court extended the reach of the Second Amendment and stated that "the Second Amendment right is fully applicable to the States" via the Due Process Clause of the Fourteenth Amendment. Id. at 744. In Caetano v. Massachusetts, 136 S.Ct. 1027 (2016) (per curiam), the Supreme Court reaffirmed its holding in Heller, reiterating that the Second Amendment "extends . . . to . . . arms . . . that were not in existence at the time of the founding" and does not protect only "those weapons useful in warfare." Id. at 1028 (quoting Heller, 554 U.S. at 582, 624).

         Since Heller, circuit courts have wrestled with the proper standard of review to apply to Second Amendment claims. Most circuit courts apply a two-part approach. See, e.g., Kolbe v. Hogan, 849 F.3d 114, 138-47 (4th Cir. 2017) (en banc); New York State Rifle and Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); GeorgiaCarry.org, Inc. v. U.S. Army Corps of Eng'rs, 788 F.3d 1318, 1322 (11th Cir. 2015); Jackson v. City and Cty. of San Francisco, 746 F.3d 953, 962-63 (9th Cir. 2014); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Drake v. Filko, 724 F.3d 426, 429 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 874-75 (4th Cir. 2013); National Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 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, 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. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).

         Under the two-part approach, courts first consider whether the law "imposes a burden on conduct that falls within the scope'' of the Second Amendment. Powell v. Tompkins, 783 F.3d 332, 347 n.9 (1st Cir. 2015); see Kolbe, 849 F.3d at 133. If the answer is no, the analysis ends. If the answer is yes, the next step is to "determine the appropriate form of judicial scrutiny to apply (typically, some form of either intermediate scrutiny or strict scrutiny)" to test the constitutionality of the law. Powell, 783 F.3d at 347 n.9. Under strict scrutiny, "the government must prove that the challenged law is 'narrowly tailored to achieve a compelling governmental interest.'" Kolbe, 849 F.3d at 133 (quoting Abrams v. Johnson, 521 U.S. 74, 82 (1997)). Under intermediate scrutiny, the government must "show that the challenged law 'is reasonably adapted to a substantial governmental interest.'" Id. (quoting United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011)).

         II. THE CASE AT BAR

         In 1998, four years after the passage of the federal statute banning assault weapons, Massachusetts enacted "An Act Relative to Gun Control in the Commonwealth." 1998 Mass. Acts ch. 180, §§ 1-80 (codified in Mass. Gen. Laws ch. 140 et seq.) (the "Act"). Among other restrictions, the Act proscribes the transfer or possession of assault weapons and large capacity magazines ("LCMs"). Mass. Gen. Laws Ann. ch. 140, § 131M (2018). Though the Act largely was styled after the federal assault weapons ban and initially echoed the federal ban's 2004 expiration date, the Massachusetts Legislature declined to let the Act expire and instead made it permanent in that year.

         On January 23, 2017, a group comprised of Massachusetts firearm owners, prospective firearm owners, firearm dealers, and a firearm advocacy association (collectively, the "Plaintiffs") filed suit against Charles Baker, the Governor of the Commonwealth of Massachusetts; Maura Healey, the Attorney General of the Commonwealth of Massachusetts (the "Attorney General"); Daniel Bennett, the Secretary of the Executive Office of Public Safety and Security; Colonel Richard McKeon, the Superintendent of the Massachusetts State Police; and the Massachusetts State Police (collectively, the "Defendants").[2]

         The Plaintiffs filed this action against the Defendants alleging violations of their constitutional rights and seeking declaratory and injunctive relief. Compl. Decl. & Inj. Relief ("Compl."), ECF No. 1. Specifically, the Plaintiffs claim that the Act infringes their Second Amendment rights and violates their rights to due process afforded to them through the Fourteenth Amendment. Id. ¶¶ 72-107.

         On December 15, 2017, both parties cross-moved for summary judgment on all counts. Pls.' Mot. Summ. J. ("Pls.' Mot."), ECF No. 57; Pls.' Mem. Supp. Mot. Summ. J. ("Pls.' Mem."), ECF No. 58; Pls.' Statement of Undisputed Material Facts ("Pls.' Statement of Facts"), ECF No. 59; Defs.' Mot. Summ. J. ("Defs.' Mot."), ECF No. 61; Mem. Supp. Defs.' Mot. Summ. J. ("Defs.' Mem."), ECF No. 62; Defs.' Statement Material Facts ("Defs.' Statement of Facts"), ECF No. 63. The Plaintiffs also moved to strike certain witness declarations and expert opinions proffered by the Defendants. See Pls.' Mot. Strike Undisclosed Witness Decls., ECF No. 68; Pls.' Mot. Strike Ops. Defs.' Experts, ECF No. 75. On January 22, 2017, the Court allowed in part the motion to strike the witness declarations, ruling that the Defendants cannot rely on them in pressing their motion for summary judgment, but denied the motion as to all other purposes. See Elec. Order, ECF No. 85. The Court denied the motion to strike the challenged expert opinions "insofar as [they] are proffered in opposition to the Plaintiffs' motion for summary judgment, " expressing no opinion on whether the challenged affidavits may be considered in support of the Defendants' motion for summary judgment. Elec. Order, ECF No. 84.

         On February 9, 2018, this Court heard oral argument on the cross-motions for summary judgment and took the matter under advisement. See ECF No. 89.

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). For a movant to prevail, it "bears the initial responsibility" of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then "shifts to the nonmoving party, who must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010), "An issue is 'genuine' if the evidence of record permits a rational factfinder to resolve it in favor of either party." Id. at 4.

         In evaluating a motion for summary judgment, the Court must consider "all of the record materials on file, including the pleadings, depositions, and affidavits, " but it is not permitted to "evaluate the credibility of witnesses nor weigh the evidence." Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). All inferences, however, are to be drawn in favor of the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         III. THE UNDISPUTED FACTS[3]

         A. The Development of the AR-15 Rifle

         In 1957, after the United States Army had adopted the M14, a select fire full-auto military rifle, it "began searching for a .22 (centerfire) caliber lightweight select fire rifle" to best meet the needs of the military. Pls.' Statement of Facts, Ex. 13 at A-15, ECF No. 59-12. "Since the mid-1950's Armalite [a gun manufacturer] had been developing gas-operated rifles that differed substantially from traditional wood stock designs in the use of modern materials and ergonomics." Id. The Armalite Rifle ("AR")-10 was developed in 1956 for a 7.62x51 mm cartridge. Id. A smaller version designed for the military, with its specifications in mind, was developed and named the AR-15. The AR-15 was a scaled down version of the AR-10, with a .223 Remington (5.56x45mm) cartridge. Id. In 1964, the Army adopted the AR-15 and renamed it the M16. Id. Colt manufactured the M16 and also created a semi-automatic version of the weapon and named it the AR-15. Id.

         B. The Federal Ban and the Act

         In 1994, Congress enacted the Public Safety and Recreational Firearms Use Protection Act to decrease the spread of assault weapons similar to military weapons. Pub. L. No. 103-322, §§ 110101-06, 108 Stat. 1796, 1996-2010 (1994). While in effect from 1994 to 2004, the federal statute banned the manufacture, transfer and possession of nineteen models of semiautomatic weapons, and copies or duplicates of those firearms. §§ 110102-06, 108 Stat, at 1996-2010. It also banned any semiautomatic rifle, pistol, or shot gun that had two or more combat-style features, and rifles and pistols that had the ability to accept a detachable magazine, as well as LCMs that could hold more than ten rounds of ammunition. Id. The ban exempted assault weapons that were possessed lawfully on September 13, 1994, the date of its enactment, as well as hundreds of rifles and shotguns commonly used for hunting and target practice. Id.

         Four years later, Massachusetts enacted the Act, which tracked the language of the federal ban and adopted the same definition of "assault weapon.'' Mass. Gen. Laws ch. 140, § 121. The Act makes it a crime to sell or possess a number of assault weapons, including Colt AR-I5s, and copies and duplicates of those weapons. Id. § 131M. It also makes it a crime to sell or possess a fixed or detachable large capacity magazine that is capable of holding more than ten rounds of ammunition. Id.; see id. § 121. The Act makes an exception for weapons otherwise lawfully owned on September 13, 1994. Id. § 131M.

         On July 20, 2016, the Attorney General issued an "Enforcement Notice" to the public to "provide a framework to gun sellers and others for understanding the definition of *Assault weapon' contained in [the Act]." Pls.' Statement of Facts, Ex. 25 ("Enforcement Notice") at 1. The Enforcement Notice explained that a weapon is a "copy" or "duplicate" of an Enumerated Weapon if (i) the weapon's "internal functional components are substantially similar in construction and configuration to those of an Enumerated Weapon, " or (ii) the weapon "has a receiver that is the same as or interchangeable with the receiver of an Enumerated Weapon." Id. at 3-4.

         The Enforcement Notice declared that with respect to individuals, its guidance "will not be applied to possession, ownership or transfer of an Assault weapon obtained prior to July 20, 2016." Id. at 4. Proceeding to address firearms dealers, it stated that its guidance "will not be applied to future possession, ownership or transfer of Assault weapons by dealers, provided that the dealer has written evidence that the weapons were transferred to the dealer in the Commonwealth prior to July 20, 2016, and provided further that a transfer made after July 20, 2016, if any, is made to persons or businesses in states where such weapons are legal." Id.

         IV. APPLYING THE ...


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