United States District Court, D. Massachusetts
DAVID SETH WORMAN, ANTHONY LINDEN, JASON WILLIAM SAWYER, PAUL NELSON CHAMBERLAIN, GUN OWNERS' ACTION LEAGUE, INC., ON TARGET TRAINING, INC., and OVERWATCH OUTPOST, Plaintiffs,
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.
AMENDMENT, U.S CONSTITUTION
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.
THE CONTROLLING LAW
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).
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.
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. 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.
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.
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."
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.
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.
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
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).
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)).
THE CASE AT BAR
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.
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
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.
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.
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.
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.
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
THE UNDISPUTED FACTS
The Development of the AR-15 Rifle
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.
The Federal Ban and the Act
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.
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.
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.
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.
APPLYING THE ...