                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-1221


JAMES A. KODAK,

                  Plaintiff - Appellant,

             v.

ERIC H. HOLDER, JR., in his official capacity as Attorney
General of the United States, and his employees, agents and
successors in office,

                  Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:08-cv-02527-WMN)


Submitted:    August 10, 2009                 Decided:   August 26, 2009


Before KING, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James A. Kodak, Appellant Pro Se. Larry David Adams, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                James A. Kodak appeals the district court’s dismissal

of his First Amended Complaint against the U.S. Attorney General

seeking an injunction to prevent the enforcement of the federal

ban   on    armor-piercing         ammunition,          18   U.S.C.   § 922(a)(7),      (8)

(2006),         and     a   declaratory           judgment      that     the     ban     is

unconstitutional.           Finding no error, we affirm.

                In his informal brief, Kodak argues that the federal

ban on armor-piercing ammunition violates the Second Amendment

because “[i]t strikes at the very core of what the right to keep

and bear arms is all about; the necessity to provide for an

effective        citizens’       militia.”         Kodak      contends   that    banning

armor-piercing ammunition essentially renders a militia and its

weapons useless because the enemy will be wearing armor.                           Kodak

also contends that armor-piercing ammunition minimizes the risk

of death when used for self-defense.

                The Second Amendment provides that “[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.             In District of Columbia v.

Heller, 128 S. Ct. 2783, 2797 (2008), the Supreme Court held

that the Second Amendment “guarantee[s] the individual right to

possess and carry weapons in case of confrontation.”                             However,

that right is not unlimited.                  Id. at 2816.            The Heller Court

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clarified   that   “the   Second   Amendment    does   not   protect   those

weapons   not   typically   possessed    by    law-abiding   citizens    for

lawful purposes” and that “the sorts of weapons protected were

those in common use at the time” the Amendment was ratified.

Id. at 2815-17 (internal quotation marks and citation omitted).

Further, the Heller Court acknowledged that:

      It may be objected that if weapons that are most
      useful in military service-M-16 rifles and the like-
      may be banned, then the Second Amendment right is
      completely detached from the prefatory clause. But as
      we have said, the conception of the militia at the
      time of the Second Amendment’s ratification 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.       It may well be
      true today that a militia, to be as effective as
      militias   in   the    18th   century,    would   require
      sophisticated arms that are highly unusual in society
      at large.   Indeed, it may be true that no amount of
      small arms could be useful against modern-day bombers
      and tanks. But the fact that modern developments have
      limited the degree of fit between the prefatory clause
      and   the    protected    right   cannot     change   our
      interpretation of the right.

Id.   We find that this analysis forecloses Kodak’s argument that

armor-piercing ammunition is necessary for an effective present-

day militia.

            Additionally, the district court took judicial notice

that “armor-piercing ammunition is not in common use by law-

abiding citizens for lawful purposes,” noting that it “has no

application for hunters” and “is frequently referred to as ‘cop-

killer bullets.’”     Kodak argues that the proper question should


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be   whether    armor-piercing     ammunition      would       be   common    in   the

absence   of    the   federal    ban.       Even   if   possession      of    armor-

piercing ammunition would be more common were it not banned, it

does not necessarily follow that it would be commonly used by

law-abiding citizens for lawful purposes, considering the great

risk   such     ammunition      poses   to     law      enforcement      officers.

Therefore, we conclude that the federal ban on armor-piercing

ammunition, pursuant to 18 U.S.C. § 922(a)(7), (8), does not

violate the Second Amendment.

           Accordingly, we affirm the district court’s judgment.

We   dispense    with   oral    argument     because     the    facts   and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                                             AFFIRMED




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