Worma v. Healey

293 F.Supp.3d 251

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.

CIVIL ACTION NO. 1:17–10107–WGY

United States District Court, D. Massachusetts.

Filed April 5, 2018

Connor M. Blair, Bradley Arant Boult Cummings LLP, Nashville, TN, James M. Campbell, Eric M. Apjohn, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, James W. Porter, III, John Parker Sweeney, Marc A. Nardone, T. Sky Woodward, Bradley Arant Boult Cummings LLP, Washington, DC, for Plaintiffs.

Jeffrey T. Collins, William W. Porter, Office of the Attorney General, Elizabeth A. Kaplan, Gary E. Klein, Massachusetts Attorney General's Office, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

WILLIAM G. YOUNG, DISTRICT JUDGE

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, 46 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, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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, 128 S.Ct. 2783. 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, 128 S.Ct. 2783.

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, 128 S.Ct. 2783.

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, 128 S.Ct. 2783. 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, 128 S.Ct. 2783 & 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, 128 S.Ct. 2783 (quoting United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 (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, 128 S.Ct. 2783.

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, 128 S.Ct. 2783. 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, 128 S.Ct. 2783 (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, 130 S.Ct. 3020, 177 L.Ed.2d 894 (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, 130 S.Ct. 3020. In Caetano v. Massachusetts, ––– U.S. ––––, 136 S.Ct. 1027, 194 L.Ed.2d 99 (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, 128 S.Ct. 2783 ).

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, 117 S.Ct. 1925, 138 L.Ed.2d 285 (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...