                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-1945


STEPHEN V. KOLBE; ANDREW C. TURNER; WINK’S SPORTING GOODS,
INCORPORATED; ATLANTIC GUNS, INCORPORATED; ASSOCIATED GUN
CLUBS OF BALTIMORE, INCORPORATED; MARYLAND SHALL ISSUE,
INCORPORATED; MARYLAND STATE RIFLE AND PISTOL ASSOCIATION,
INCORPORATED;    NATIONAL  SHOOTING   SPORTS    FOUNDATION,
INCORPORATED;     MARYLAND  LICENSED    FIREARMS    DEALERS
ASSOCIATION, INCORPORATED,

                Plaintiffs – Appellants,

          and

SHAWN J. TARDY; MATTHEW GODWIN,

                Plaintiffs,

          v.

LAWRENCE J. HOGAN, Jr., in his official capacity as
Governor of the State of Maryland; BRIAN E. FROSH, in his
official capacity as Attorney General of the State of
Maryland; COLONEL WILLIAM M. PALLOZZI, in his official
capacity as Secretary of the Department of State Police and
Superintendent of the Maryland State Police; MARYLAND STATE
POLICE,

                Defendants – Appellees.

---------------------------

STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ALASKA;
STATE OF ARIZONA; STATE OF FLORIDA; STATE OF IDAHO; STATE
OF KANSAS; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF
MISSOURI; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NEW
MEXICO; STATE OF NORTH DAKOTA; STATE OF OKLAHOMA; STATE OF
SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TEXAS;
STATE OF UTAH; STATE OF WYOMING; COMMONWEALTH OF KENTUCKY;
TRADITIONALIST   YOUTH   NETWORK,   LLC;   NATIONAL   RIFLE
ASSOCIATION OF AMERICA; CRPA FOUNDATION; GUN OWNERS OF
CALIFORNIA; COLORADO STATE SHOOTING ASSOCIATION; IDAHO
STATE RIFLE & PISTOL ASSOCIATION; ILLINOIS STATE RIFLE
ASSOCIATION; KANSAS STATE RIFLE ASSOCIATION; LEAGUE OF
KENTUCKY   SPORTSMEN,   INC.; NEVADA   FIREARMS   COALITION;
ASSOCIATION OF NEW JERSEY RIFLE & PISTOL CLUBS; NEW MEXICO
SHOOTING SPORTS ASSOCIATION; NEW YORK RIFLE & PISTOL
ASSOCIATION;   TEXAS   STATE  RIFLE   ASSOCIATION;   VERMONT
FEDERATION OF SPORTSMAN’S CLUBS; VERMONT RIFLE & PISTOL
ASSOCIATION; GUN OWNERS OF AMERICA, INC.; GUN OWNERS
FOUNDATION; U.S. JUSTICE FOUNDATION; THE LINCOLN INSTITUTE
FOR RESEARCH AND EDUCATION; THE ABRAHAM LINCOLN FOUNDATION
FOR PUBLIC POLICY RESEARCH, INC.; CONSERVATIVE LEGAL
DEFENSE AND EDUCATION FUND; INSTITUTE ON THE CONSTITUTION;
CONGRESS OF RACIAL EQUALITY; NATIONAL CENTER FOR PUBLIC
POLICY RESEARCH; PROJECT 21; PINK PISTOLS; WOMEN AGAINST
GUN CONTROL; THE DISABLED SPORTSMEN OF NORTH AMERICA; LAW
ENFORCEMENT LEGAL DEFENSE FUND; LAW ENFORCEMENT ACTION
NETWORK; LAW ENFORCEMENT ALLIANCE OF AMERICA; INTERNATIONAL
LAW ENFORCEMENT EDUCATORS AND TRAINERS ASSOCIATION; WESTERN
STATES SHERIFFS’ ASSOCIATION,

                Amici Supporting Appellants,

LAW CENTER TO PREVENT GUN VIOLENCE; MARYLANDERS TO PREVENT
GUN VIOLENCE, INCORPORATED; BRADY CENTER TO PREVENT GUN
VIOLENCE; STATE OF NEW YORK; STATE OF CALIFORNIA; STATE OF
CONNECTICUT; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF
IOWA; STATE OF MASSACHUSETTS; STATE OF OREGON; DISTRICT OF
COLUMBIA,

                Amici Supporting Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:13-cv-02841-CCB)


Argued:   May 11, 2016                 Decided:   February 21, 2017


Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
TRAXLER, KING, SHEDD, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER,
and HARRIS, Circuit Judges.


                                 2
Affirmed by published opinion. Judge King wrote the opinion for
the en banc majority, in which Chief Judge Gregory and Judges
Wilkinson, Motz, Keenan, Wynn, Floyd, Thacker, and Harris joined
in full; Judge Diaz joined in part as to the Second Amendment
claims and joined as to the Fourteenth Amendment equal
protection and due process claims; and Judges Niemeyer, Shedd,
and Agee joined as to the Fourteenth Amendment claims only.
Judge Wilkinson wrote a concurring opinion, in which Judge Wynn
joined.   Judge Diaz wrote an opinion concurring in part and
concurring in the judgment as to the Second Amendment claims.
Judge Traxler wrote a dissenting opinion as to the Second
Amendment claims, in which Judges Niemeyer, Shedd, and Agee
joined.   Judge Traxler also wrote an opinion dissenting as to
the Fourteenth Amendment equal protection claim and concurring
in the judgment as to the Fourteenth Amendment due process
claim.


ARGUED: John Parker Sweeney, BRADLEY ARANT BOULT CUMMINGS LLP,
Washington, D.C., for Appellants. Matthew John Fader, OFFICE OF
THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees.   ON BRIEF: T. Sky Woodward, James W. Porter, III,
Marc A. Nardone, BRADLEY ARANT BOULT CUMMINGS LLP, Washington,
D.C., for Appellants.     Brian E. Frosh, Attorney General of
Maryland, Jennifer L. Katz, Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees.    Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston,
Michigan; Jason Van Dyke, THE VAN DYKE LAW FIRM, PLLC, Plano,
Texas, for Amicus Traditionalist Youth Network, LLC.     Patrick
Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie
Marie Blake, Erica N. Peterson, Gilbert Dickey, Assistant
Attorneys General, OFFICE OF THE ATTORNEY GENERAL OF WEST
VIRGINIA, Charleston, West Virginia, for Amicus State of West
Virginia;   Luther  Strange,   Attorney   General  of   Alabama,
Montgomery, Alabama, for Amicus State of Alabama; Michael C.
Geraghty, Attorney General of Alaska, Juneau, Alaska, for Amicus
State of Alaska; Thomas C. Horne, Attorney General of Arizona,
Phoenix, Arizona, for Amicus State of Arizona; Pam Bondi,
Attorney General of Florida, Tallahassee, Florida, for Amicus
State of Florida; Lawrence G. Wasden, Attorney General of Idaho,
Boise, Idaho, for Amicus State of Idaho; Derek Schmidt, Attorney
General of Kansas, Topeka, Kansas, for Amicus State of Kansas;
James D. Caldwell, Attorney General of Louisiana, Baton Rouge,
Louisiana, for Amicus State of Louisiana; Bill Schuette,
Attorney General of Michigan, Lansing, Michigan, for Amicus
State of Michigan; Chris Koster, Attorney General of Missouri,

                               3
Jefferson City, Missouri, for Amicus State of Missouri; Timothy
C. Fox, Attorney General of Montana, Helena, Montana, for Amicus
State of Montana; Jon Bruning, Attorney General of Nebraska,
Lincoln, Nebraska, for Amicus State of Nebraska; Gary King,
Attorney General of New Mexico, Santa Fe, New Mexico, for Amicus
State of New Mexico; Wayne Stenehjem, Attorney General of North
Dakota, Bismarck, North Dakota, for Amicus State of North
Dakota; E. Scott Pruitt Attorney General of Oklahoma, Oklahoma
City, Oklahoma, for Amicus State of Oklahoma; Alan Wilson,
Attorney General of South Carolina, Columbia, South Carolina,
for Amicus State of South Carolina; Martin J. Jackley, Attorney
General of South Dakota, Pierre, South Dakota, for Amicus State
of South Dakota; Greg Abbott, Attorney General of Texas, Austin,
Texas, for Amicus State of Texas; Sean Reyes, Attorney General
of Utah, Salt Lake City, Utah, for Amicus State of Utah; Peter
K. Michael, Attorney General of Wyoming, Cheyenne, Wyoming, for
Amicus State of Wyoming; Jack Conway, Attorney General of
Kentucky, Frankfort, Kentucky, for Amicus Commonwealth of
Kentucky.     Charles J. Cooper, David H. Thompson, Peter A.
Patterson, John D. Ohlendorf, COOPER & KIRK, PLLC, Washington,
D.C., for Amicus National Rifle Association of America, Inc.
C.D. Michel, Clinton B. Monfort, Anna M. Barvir, MICHEL &
ASSOCIATES, P.C., Long Beach, California, for Amici CRPA
Foundation, Gun Owners of California, Colorado State Shooting
Association, Idaho State Rifle & Pistol Association, Illinois
State Rifle Association, Kansas State Rifle Association, League
of   Kentucky    Sportsmen,   Inc.,   Nevada   Firearms   Coalition,
Association of New Jersey Rifle & Pistol Clubs, New Mexico
Shooting Sports Association, New York State Rifle & Pistol
Association, Texas State Rifle Association, Vermont Federation
of Sportsmen’s Clubs, and Vermont Rifle & Pistol Association.
Michael Connelly, U.S. JUSTICE FOUNDATION, Ramona, California,
for Amicus U.S. Justice Foundation; Robert J. Olson, Herbert W.
Titus, William J. Olson, John S. Miles, Jeremiah L. Morgan,
WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Gun Owners
of   America,    Inc.,   Gun   Owners   Foundation,   U.S.   Justice
Foundation, The Lincoln Institute for Research and Education,
The Abraham Lincoln Foundation for Public Policy Research, Inc.,
Conservative Legal Defense and Education Fund, and Institute on
the Constitution.     Brian S. Koukoutchos, Mandeville, Louisiana;
James B. Astrachan, ASTRACHAN GUNST THOMAS, P.C., Baltimore,
Maryland, for Amici Congress of Racial Equality, National Center
for Public Policy Research, Project 21, Pink Pistols, Women
Against Gun Control, and The Disabled Sportsmen of North
America.    Dan M. Peterson, DAN M. PETERSON, PLLC, Fairfax,
Virginia, for Amici The Law Enforcement Legal Defense Fund, Law
Enforcement Action Network, Law Enforcement Alliance of America,

                                 4
International    Law   Enforcement    Educators   and   Trainers
Association, and Western States Sheriffs’ Association. Jonathan
K. Baum, Chicago, Illinois, Mark T. Ciani, KATTEN MUCHIN
ROSENMAN LLP, New York, New York, for Amici Law Center to
Prevent Gun Violence and Marylanders to Prevent Gun Violence,
Inc.   Jonathan E. Lowy, Kelly Sampson, BRADY CENTER TO PREVENT
GUN VIOLENCE, Washington, D.C.; Elliott Schulder, Suzan F.
Charlton, Amit R. Vora, Catlin Meade, Stephen Kiehl, COVINGTON &
BURLING LLP, Washington, D.C., for Amicus Brady Center To
Prevent Gun Violence.   Barbara D. Underwood, Solicitor General,
Anisha S. Dasgupta, Deputy Solicitor General, Claude S. Platton,
Assistant Solicitor General, Eric T. Schneiderman, Attorney
General of the State of New York, for Amicus State of New York;
Kamala D. Harris, Attorney General of California, Sacramento,
California, for Amicus State of California; George Jepsen,
Attorney General of Connecticut, Hartford, Connecticut, for
Amicus State of Connecticut; Russell A. Suzuki, Attorney General
of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lisa
Madigan, Attorney General of Illinois, Chicago, Illinois, for
Amicus State of Illinois; Thomas J. Miller, Attorney General of
Iowa, Des Moines, Iowa, for Amicus State of Iowa; Martha
Coakley,    Attorney    General    of   Massachusetts,   Boston,
Massachusetts, for Amicus Commonwealth of Massachusetts; Ellen
F. Rosenblum, Attorney General of Oregon, Salem, Oregon, for
Amicus State of Oregon; Karl A. Racine, Attorney General of The
District of Columbia, Washington, D.C., for Amicus The District
of Columbia.   J. Adam Skaggs, Mark Anthony Frasetto, EVERYTOWN
FOR GUN SAFETY, New York, New York; Deepak Gupta, Jonathan E.
Taylor, Neil K. Sawhney, GUPTA WESSLER PLLC, Washington, D.C.,
for Amicus Everytown for Gun Safety.




                               5
KING, Circuit Judge:

        On    the       morning         of      December         14,        2012,    in    Newtown,

Connecticut, a gunman used an AR-15-type Bushmaster rifle and

detachable thirty-round magazines to murder twenty first-graders

and    six     adults       in    the        Sandy       Hook    Elementary         School.        Two

additional         adults        were    injured          by    gunfire,       and     just     twelve

children in the two targeted classrooms were not shot.                                            Nine

terrified      children          ran     from     one      of    the        classrooms     when    the

gunman paused to reload, while two youngsters successfully hid

in a restroom.              Another child was the other classroom’s sole

survivor.           In all, the gunman fired at least 155 rounds of

ammunition within five minutes, shooting each of his victims

multiple times.

       Both        before    and        after        Newtown,        similar        military-style

rifles and detachable magazines have been used to perpetrate

mass shootings in places whose names have become synonymous with

the    slaughters        that      occurred          there      —      like    Aurora,     Colorado

(twelve killed and at least fifty-eight wounded in July 2012 in

a     movie    theater),          and     San    Bernardino,             California        (fourteen

killed       and    more    than        twenty       wounded        in      December    2015     at   a

holiday party).             In the early morning hours of June 12, 2016, a

gunman killed forty-nine and injured fifty-three at the Pulse

nightclub          in   Orlando,        Florida,          making       it    the    site    of    this

country’s          deadliest       mass       shooting          yet.         According     to     news

                                                     6
reports,      the     Orlando    gunman         used    a   Sig   Sauer     MCX,     a

semiautomatic rifle that was developed at the request of our

Army’s special forces and is known in some military circles as

the “Black Mamba.”           Other massacres have been carried out with

handguns equipped with magazines holding more than ten rounds,

including those at Virginia Tech (thirty-two killed and at least

seventeen wounded in April 2007) and Fort Hood, Texas (thirteen

killed and more than thirty wounded in November 2009), as well

as in Binghamton, New York (thirteen killed and four wounded in

April 2009 at an immigration center), and Tucson, Arizona (six

killed and thirteen wounded in January 2011 at a congresswoman’s

constituent meeting in a grocery store parking lot).

       In response to Newtown and other mass shootings, the duly

elected members of the General Assembly of Maryland saw fit to

enact the State’s Firearm Safety Act of 2013 (the “FSA”), which

bans   the    AR-15    and   other    military-style        rifles    and   shotguns

(referred to as “assault weapons”) and detachable large-capacity

magazines.       The    plaintiffs     in       these   proceedings    contest     the

constitutionality of the FSA with a pair of Second Amendment

claims — one aimed at the assault weapons ban, the other at the

prohibition against large-capacity magazines — plus Fourteenth

Amendment equal protection and due process claims.

       On    cross-motions      for   summary       judgment,     a   distinguished

judge in the District of Maryland ruled in August 2014 that the

                                            7
FSA     is    constitutional             and   thus      awarded           judgment       to     the

defendants.       See Kolbe v. O’Malley, 42 F. Supp. 3d 768 (D. Md.

2014)     (the    “Opinion”).              Addressing          the     plaintiffs’         Second

Amendment claims under the Supreme Court’s decision in District

of Columbia v. Heller, 554 U.S. 570 (2008), the district court

expressed grave doubt that the banned assault weapons and large-

capacity        magazines          are     constitutionally                protected           arms.

Nevertheless,          the     court       ultimately          assumed       that        the     FSA

implicates       the     Second      Amendment           and    subjected           it    to     the

“intermediate         scrutiny”      standard       of     review.          In   the      wake    of

Heller, four of our sister courts of appeals have also rejected

Second       Amendment       challenges        to   bans       on    assault     weapons         and

large-capacity magazines, including two (the Second and District

of Columbia Circuits) that utilized an analysis similar to the

district court’s.

      In early February of 2016, a divided three-judge panel of

this Court vacated the Opinion’s Second Amendment rulings and

remanded to the district court, directing the application of the

more restrictive standard of “strict scrutiny” to the FSA.                                       See

Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016).                                Pursuant to its

reading of Heller, the panel majority determined that the banned

assault       weapons        and    large-capacity              magazines        are       indeed

protected        by     the     Second         Amendment,            and     that        the     FSA

substantially burdens the core Second Amendment right to use

                                                8
arms for self-defense in the home.                     We thereby became the first

and only court of appeals to rule that a ban on assault weapons

or     large-capacity            magazines         deserves       strict           scrutiny.

Meanwhile, the panel affirmed the district court’s denial of the

plaintiffs’ Fourteenth Amendment claims.                    On March 4, 2016, the

panel’s decision          was    vacated     in    its   entirety       by    our    Court’s

grant of rehearing en banc in this case.                      We heard argument en

banc    on    May   11,        2016,   and       the   appeal     is     now       ripe    for

disposition.

       As explained below, we are satisfied to affirm the district

court’s judgment, in large part adopting the Opinion’s cogent

reasoning      as   to   why     the   FSA    contravenes        neither       the    Second

Amendment     nor   the    Fourteenth.            We   diverge    from       the    district

court on one notable point:             We conclude — contrary to the now-

vacated decision of our prior panel — that the banned assault

weapons and large-capacity magazines are not protected by the

Second Amendment.              That is, we are convinced that the banned

assault      weapons     and    large-capacity         magazines       are   among        those

arms that are “like” “M-16 rifles” — “weapons that are most

useful in military service” — which the Heller Court singled out

as being beyond the Second Amendment’s reach.                          See 554 U.S. at

627 (rejecting the notion that the Second Amendment safeguards

“M-16 rifles and the like”).                 Put simply, we have no power to

extend Second Amendment protection to the weapons of war that

                                             9
the   Heller    decision      explicitly        excluded    from    such    coverage.

Nevertheless, we also find it prudent to rule that — even if the

banned assault weapons and large-capacity magazines are somehow

entitled to Second Amendment protection — the district court

properly     subjected     the     FSA     to      intermediate       scrutiny      and

correctly upheld it as constitutional under that standard of

review.



                                          I.

                                          A.

      The General Assembly of Maryland passed the FSA on April 4,

2013, the Governor signed it into law that May 16, and it became

effective several months later on October 1.                       The FSA provides

that a person may neither “transport an assault weapon into the

State” nor “possess, sell, offer to sell, transfer, purchase, or

receive an assault weapon.”              See Md. Code Ann., Crim. Law § 4-

303(a).        The   banned    assault         weapons    include    “assault      long

gun[s]” and “copycat weapon[s].”               Id. § 4-301(d).

      The FSA defines an assault long gun as a rifle or shotgun

“listed    under     § 5-101(r)(2)        of    the   Public    Safety      Article,”

including the “Colt AR-15,” “Bushmaster semi-auto rifle,” and

“AK-47 in all forms.”          See Md. Code Ann., Crim. Law § 4-301(b);

Md.   Code     Ann.,    Pub.     Safety        § 5-101(r)(2).         The   list    of

prohibited     rifles   and    shotguns        consists    of   “specific     assault

                                          10
weapons or their copies, regardless of which company produced

and manufactured that assault weapon.”      See Md. Code Ann., Pub.

Safety § 5-101(r)(2) (emphasis added). 1


     1 The rifles and shotguns specifically identified as banned
in section 5-101(r)(2) — mostly semiautomatic rifles — are as
follows:

     (i) American Arms Spectre da Semiautomatic carbine;
     (ii) AK-47 in all forms; (iii) Algimec AGM-1 type
     semi-auto; (iv) AR 100 type semi-auto; (v) AR 180 type
     semi-auto;      (vi) Argentine       L.S.R.      semi-auto;
     (vii) Australian Automatic Arms SAR type semi-auto;
     (viii) Auto-Ordnance    Thompson    M1   and  1927     semi-
     automatics; (ix) Barrett light .50 cal. semi-auto;
     (x) Beretta AR70 type semi-auto; (xi) Bushmaster semi-
     auto rifle; (xii) Calico models M-100 and M-900;
     (xiii) CIS SR 88 type semi-auto; (xiv) Claridge HI TEC
     C-9   carbines;   (xv) Colt   AR-15,    CAR-15,    and   all
     imitations except Colt AR-15 Sporter H-BAR rifle;
     (xvi) Daewoo MAX 1 and MAX 2, aka AR 100, 110C, K-1,
     and K-2; (xvii) Dragunov Chinese made semi-auto;
     (xviii) Famas semi-auto (.223 caliber); (xix) Feather
     AT-9 semi-auto; (xx) FN LAR and FN FAL assault rifle;
     (xxi) FNC         semi-auto           type          carbine;
     (xxii) F.I.E./Franchi LAW 12 and SPAS 12 assault
     shotgun; (xxiii) Steyr-AUG-SA semi-auto; (xxiv) Galil
     models AR and ARM semi-auto; (xxv) Heckler and Koch
     HK-91 A3, HK-93 A2, HK-94 A2 and A3; (xxvi) Holmes
     model    88    shotgun;    (xxvii) Avtomat      Kalashnikov
     semiautomatic rifle in any format; (xxviii) Manchester
     Arms “Commando” MK-45, MK-9; (xxix) Mandell TAC-1
     semi-auto carbine; (xxx) Mossberg model 500 Bullpup
     assault     shotgun;      (xxxi) Sterling       Mark      6;
     (xxxii) P.A.W.S.    carbine;     (xxxiii) Ruger      mini-14
     folding   stock   model   (.223    caliber);    (xxxiv) SIG
     550/551 assault rifle (.223 caliber); (xxxv) SKS with
     detachable magazine; (xxxvi) AP-74 Commando type semi-
     auto; (xxxvii) Springfield Armory BM-59, SAR-48, G3,
     SAR-3, M-21 sniper rifle, M1A, excluding the M1
     Garand; (xxxviii) Street sweeper assault type shotgun;
     (xxxix) Striker 12 assault shotgun in all formats;
     (xl) Unique F11 semi-auto type; (xli) Daewoo USAS 12
(Continued)
                                  11
       The FSA provides a separate definition for a copycat weapon

that   is     premised   on   a   weapon’s    characteristics,   rather   than

being identified by a list of specific firearms.                 In relevant

part, a copycat weapon means:

       (i)         a semiautomatic centerfire rifle that can
                   accept a detachable magazine and has any two
                   of the following:

                   1.    a folding stock;

                   2.    a grenade launcher or flare launcher;
                   or

                   3.    a flash suppressor;

       (ii)        a semiautomatic centerfire rifle that has a
                   fixed magazine with the capacity to accept
                   more than 10 rounds;

       (iii)       a semiautomatic centerfire rifle that has an
                   overall length of less than 29 inches;

                                      * * *

       (v)         a semiautomatic shotgun that has a folding
                   stock; or

       (vi)        a shotgun with a revolving cylinder.

See Md. Code Ann., Crim. Law § 4-301(e)(1).               The FSA excludes

assault long guns — those enumerated in section 5-101(r)(2) of




       semi-auto shotgun; (xlii) UZI 9mm carbine or rifle;
       (xliii) Valmet M-76 and M-78 semi-auto; (xliv) Weaver
       Arms “Nighthawk” semi-auto carbine; or (xlv) Wilkinson
       Arms 9mm semi-auto “Terry.”

See Md. Code Ann., Pub. Safety § 5-101(r)(2).



                                       12
the Public Safety Article and their copies — from the definition

of   a       copycat    weapon.        See   Md.        Code   Ann.,     Crim.          Law   § 4-

301(e)(2). 2

         In    banning       large-capacity        magazines       along      with       assault

weapons, the FSA provides that “[a] person may not manufacture,

sell,         offer    for     sale,   purchase,          receive,       or      transfer       a

detachable magazine that has a capacity of more than 10 rounds

of ammunition for a firearm.”                See Md. Code Ann., Crim. Law § 4-

305(b).         A     detachable   magazine        is    defined    as     “an    ammunition

feeding        device    that    can   be    removed       readily       from       a    firearm

without requiring disassembly of the firearm action or without

the use of a tool, including a bullet or cartridge.”                                    Id. § 4-

301(f).

         A    person    who    violates      the    FSA    is   subject        to       criminal

prosecution and imprisonment for up to three years plus a fine

not exceeding $5,000.              See Md. Code Ann., Crim. Law § 4-306(a).

A longer prison term is mandatory if a person uses an assault

weapon or large-capacity magazine in the commission of a felony

or crime of violence, i.e., five to twenty years for a first


         2
       Although the FSA also identifies “assault pistol[s]” as
assault weapons, see Md. Code Ann., Crim. Law § 4-301(c),
(d)(2), the plaintiffs have not challenged the FSA’s prohibition
against assault pistols.    Thus, our discussion of the banned
assault weapons is limited to assault long guns and those
copycat weapons that are rifles and shotguns.



                                             13
violation,       and       ten        to    twenty       years         for    each       subsequent

violation.       See id. § 4-306(b).

     Under the FSA’s exceptions, “[a] licensed firearms dealer

may continue to possess, sell, offer for sale, or transfer an

assault long gun or a copycat weapon that the licensed firearms

dealer lawfully possessed on or before October 1, 2013,” and

“[a] person who lawfully possessed, has a purchase order for, or

completed an application to purchase an assault long gun or a

copycat weapon before October 1, 2013, may . . . possess and

transport the assault long gun or copycat weapon.”                                     See Md. Code

Ann., Crim. Law § 4-303(b)(2), (3)(i).                             The FSA does not ban the

possession       of    a     large-capacity            magazine.             Further,        the   FSA

explicitly       allows       the      receipt         and    possession          of    an   assault

weapon    or    large-capacity              magazine         by    a   retired      Maryland       law

enforcement          officer      if       the   assault          weapon     or   large-capacity

magazine       “is    sold       or    transferred           to    the     person       by   the   law

enforcement agency on retirement” or “was purchased or obtained

by the person for official use with the law enforcement agency

before retirement.”              Id. § 4-302(7).

                                                  B.

     On September 26, 2013, the plaintiffs filed their initial

Complaint in the District of Maryland.                              The following day, they

requested a temporary restraining order from the district court,

seeking    to    bar       the    defendants           from       enforcing       the    challenged

                                                  14
provisions of the FSA once it took effect on October 1, 2013.

The   court    conducted        a     hearing     on    October    1     and     denied     the

requested        temporary           restraining        order      from         the     bench.

Thereafter, the parties agreed that the court should proceed to

resolve    the        merits    of    the    litigation       on    cross-motions           for

summary judgment.

      The operative Third Amended Complaint, filed on November

22,   2013,      asks    for    declaratory        and    injunctive           relief.       It

alleges the FSA is facially unconstitutional in four respects:

(1) the assault weapons ban contravenes the Second Amendment;

(2) the     prohibition          against        large-capacity           magazines          also

violates      the      Second        Amendment;        (3) the     provision          allowing

receipt    and      possession        of   assault      weapons    and     large-capacity

magazines        by     retired        Maryland         law     enforcement           officers

contravenes       the     Equal       Protection        Clause     of     the     Fourteenth

Amendment;       and     (4) the       provision       outlawing        “copies”       of   the

rifles and shotguns enumerated in section 5-101(r)(2) of the

Public Safety Article violates the Fourteenth Amendment’s Due

Process Clause by being too vague to provide adequate notice of

the conduct proscribed.

      The plaintiffs include Stephen V. Kolbe and Andrew Turner,

two   Maryland         residents       who   have       asserted        that    they     would

purchase assault weapons and large-capacity magazines but for

the FSA.      Other plaintiffs are firearms dealers in Maryland and

                                             15
firearms-related          associations:                 Wink’s     Sporting        Goods,

Incorporated; Atlantic Guns, Incorporated; Associated Gun Clubs

of Baltimore, Incorporated; Maryland Shall Issue, Incorporated;

Maryland    State        Rifle    and     Pistol    Association,        Incorporated;

National Shooting Sports Foundation, Incorporated; and Maryland

Licensed Firearms Dealers Association, Incorporated.                         See Kolbe

v.    O’Malley,     42    F.     Supp.     3d    768,    774     n.3   (D.   Md.     2014)

(concluding that “a credible threat of prosecution under the

[FSA]”    confers     standing       on    individual       plaintiffs       Kolbe    and

Turner, and thus “jurisdiction is secure . . . whether or not

the    additional        plaintiffs       have    standing”       (citing     Vill.     of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264

& n.9 (1977))).

      The plaintiffs’ claims are made against four defendants in

their official capacities:               Lawrence J. Hogan, Jr., Governor of

the State of Maryland, as successor to Martin J. O’Malley; Brian

E. Frosh, the State’s Attorney General, as successor to Douglas

F.    Gansler;    Colonel        William    M.     Pallozzi,      Secretary     of    the

Department of State Police and Superintendent of the Maryland

State Police, as successor to Colonel Marcus L. Brown; and the

Maryland State Police.              We hereafter refer to the defendants

collectively as the “State.”




                                            16
                                 C.

                                 1.

     In support of its motion for summary judgment, the State

proffered extensive uncontroverted evidence demonstrating that

the assault weapons outlawed by the FSA are exceptionally lethal

weapons of war. 3   A prime example of the State’s evidence is that

the most popular of the prohibited assault weapons — the AR-15

— is simply the semiautomatic version of the M16 rifle used by

our military and others around the world.        Accord Staples v.

United States, 511 U.S. 600, 603 (1994) (observing that “[t]he

AR-15 is the civilian version of the military’s M-16 rifle, and

is, unless modified, a semiautomatic weapon”).

     The State’s evidence imparts that the AR-15 was developed

after World War II for the U.S. military.     It was designed as a

selective-fire rifle — one that can be fired in either automatic

mode (firing continuously as long as the trigger is depressed)

or semiautomatic mode (firing one round of ammunition for each


     3 By the Opinion of August 22, 2014, explaining its award of
summary judgment to the State, the district court also denied
the plaintiffs’ motion to exclude certain of the State’s expert
and fact evidence.    See Kolbe, 42 F. Supp. 3d at 775, 777-82.
In this appeal, the plaintiffs challenge the court’s evidentiary
rulings.   Because the court did not abuse its discretion in
making the evidentiary rulings, we affirm those rulings and rely
on evidence that the court properly declined to exclude.      See
Humphreys & Partners Architects, L.P. v. Lessard Design, Inc.,
790 F.3d 532, 538 (4th Cir. 2015).



                                 17
pull       of   the     trigger     and,    after      each   round     is     fired,

automatically         loading     the   next).       In    combat-style        testing

conducted in 1959, it was “discovered that a 7- or even 5-man

squad armed with AR-15s could do as well or better in hit-and-

kill potential . . . than the traditional 11-man squad armed

with M14 rifles,” which were the heavier selective-fire rifles

then used by soldiers in the Army.                  See J.A. 930. 4      Subsequent

field testing in Vietnam, in 1962, revealed the AR-15 “to be a

very lethal combat weapon” that was “well-liked . . . for its

size and light recoil.”            Id. at 968.       Reports from that testing

indicated that “the very high-velocity AR-15 projectiles” had

caused      “[a]mputations        of    limbs,   massive      body     wounds,    and

decapitations.”         Id.

       Within     the    next     few   years,   the      Department    of     Defense

purchased more than 100,000 AR-15 rifles for the Army and the

Air Force, and the military changed the name “AR-15” to “M16.”

By that time, the former Soviet Union was already producing the

AK-47, a selective-fire rifle which, like the AR-15/M16, was

developed for offensive use and has been adopted by militaries

around      the   world.        Various     firearms      companies     have     since

manufactured civilian versions of the AR-15 and AK-47 that are



       4
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.



                                           18
semiautomatic     but    otherwise       retain    the        military      features     and

capabilities     of    the   fully    automatic         M16    and    AK-47.      Several

other   FSA-banned       assault     weapons      are    —     like     the    AR-15     and

semiautomatic     AK-47      —   semiautomatic           versions      of     machineguns

initially designed for military use.                    See, e.g., J.A. 1257 (UZI

and Galil rifles); id. at 1260 (Fabrique National (“FN”) assault

rifles); id. at 1261 (Steyr AUG rifles).

       The    difference         between        the       fully        automatic         and

semiautomatic versions of those firearms is slight.                             That is,

the automatic firing of all the ammunition in a large-capacity

thirty-round     magazine        takes     about        two    seconds,        whereas    a

semiautomatic rifle can empty the same magazine in as little as

five seconds.          See, e.g., J.A. 1120 (“[S]emiautomatic weapons

can be fired at rates of 300 to 500 rounds per minute, making

them    virtually       indistinguishable          in     practical         effect     from

machineguns.”).          Moreover,     soldiers         and    police       officers     are

often advised to choose and use semiautomatic fire, because it

is more accurate and lethal than automatic fire in many combat

and law enforcement situations.

       The AR-15, semiautomatic AK-47, and other assault weapons

banned by the FSA have a number of features designed to achieve

their principal purpose — “killing or disabling the enemy” on

the battlefield.        See J.A. 735.          For example, some of the banned

assault      weapons     incorporate       flash        suppressors,          which      are

                                          19
designed    to   help    conceal     a    shooter’s      position    by    dispersing

muzzle    flash.        Others    possess       barrel    shrouds,    which    enable

“spray-firing” by cooling the barrel and providing the shooter a

“convenient grip.”          Id. at 1121.          Additional military features

include folding and telescoping stocks, pistol grips, grenade

launchers, night sights, and the ability to accept bayonets and

large-capacity magazines.

     Several     manufacturers       of     the    banned   assault       weapons,    in

advertising them to the civilian market, tout their products’

battlefield prowess.          Colt’s Manufacturing Company boasts that

its AR-15 rifles are manufactured “based on the same military

standards and specifications as the United States issue Colt M16

rifle and M4 carbine.”           See J.A. 1693.          Bushmaster describes its

Adaptive Combat Rifle as “the ultimate military combat weapons

system” that is “[b]uilt specifically for law enforcement and

tactical markets.”        Id. at 1697.

     In    short,    like    their       fully    automatic    counterparts,         the

banned     assault      weapons      “are        firearms     designed      for      the

battlefield, for the soldier to be able to shoot a large number

of rounds across a battlefield at a high rate of speed.”                             See

J.A. 206.    Their design results in “a capability for lethality —

more wounds, more serious, in more victims — far beyond that of

other firearms in general, including other semiautomatic guns.”

Id. at 1121-22.

                                           20
       Correspondingly, the large-capacity magazines prohibited by

the FSA allow a shooter to fire more than ten rounds without

having to pause to reload, and thus “are particularly designed

and     most      suitable       for      military        and        law     enforcement

applications.”          See J.A. 891.        Such magazines are “designed to

enhance” a shooter’s “capacity to shoot multiple human targets

very rapidly.”          Id. at 1151.            Large-capacity magazines are a

feature common, but not unique, to the banned assault weapons,

many    of    which    are   capable   of    accepting        magazines      of   thirty,

fifty, or even 100 rounds.

       With limited exceptions, M16s and other machineguns have

been banned nationwide since 1986.                     See 18 U.S.C. § 922(o)(1)

(rendering it “unlawful for any person to transfer or possess a

machinegun”); 26 U.S.C. § 5845(b) (defining a “machinegun” as

“any    weapon       which   shoots,   is    designed         to    shoot,   or   can    be

readily restored to shoot, automatically more than one shot,

without manual reloading, by a single function of the trigger”).

By     that    time,     the    private      ownership         of     machineguns       was

substantially         circumscribed    as        a   result    of    heavy    taxes     and

strict regulations imposed almost fifty years earlier by the

National Firearms Act of 1934.               See United States v. Miller, 307

U.S.     174     (1939)      (outlining      1934       Act’s       requirements        for

transferring and registering firearms, including short-barreled

shotguns       and     machineguns,       and        rejecting      Second    Amendment

                                            21
challenge         thereto).         There     have   also       been     various      state    and

local prohibitions against the receipt, possession, and transfer

of machineguns.

       In 1994, Congress enacted a ban on certain semiautomatic

military-style            weapons       and   magazines      capable         of    holding    more

than       ten    rounds.         The    federal     ban    applied          only   to   assault

weapons      and        magazines      manufactured        after       September     13,     1994,

however, and it expired a decade later on September 13, 2004.

Just       months       before    Congress     passed       the    1994      federal     assault

weapons          ban,    Maryland       had   enacted       a     state      law    prohibiting

assault pistols and the transfer of magazines with a capacity in

excess of twenty rounds.                  The same state law regulated what the

FSA    now       identifies       as     assault     long       guns    by    requiring       that

purchasers          first        complete      an    application             and     undergo     a

background check.                Maryland replaced that law with the FSA in

2013, spurred by Newtown and other mass shootings. 5


       5
       Dr. Christopher Koper, a social scientist who has studied
the effects of the 1994 federal assault weapons ban, explained
in these proceedings that the federal ban had several features
that may have limited its efficacy and that are not present in
Maryland’s FSA. One such feature was the federal ban’s broader
“grandfather” clause, rendering its prohibitions applicable
solely   to   assault  weapons   and   large-capacity  magazines
manufactured after the ban’s effective date of September 13,
1994.   In contrast, the FSA grandfathers only assault weapons
owned prior to its effective date, and “does not allow the
further sale, transfer, or receipt of those firearms.” See J.A.
362.   With respect to large-capacity magazines, or “LCMs,” the
FSA does not bar their transport into Maryland, but “is still
(Continued)
                                                22
     The State has calculated that — accepting the plaintiffs’

estimate that there were at least 8 million FSA-banned assault

weapons in circulation in the United States by 2013 — those

weapons comprised less than 3% of the more than 300 million

firearms in this country.         Moreover, premised on the plaintiffs’

evidence that owners of the banned assault weapons possessed an

average of 3.1 of them in 2013, the State has reckoned that less

than 1% of Americans owned such a weapon that year.

     At the same time, according to the State’s evidence, the

FSA-banned assault weapons have been used disproportionately to

their   ownership     in   mass    shootings    and   the     murders     of   law

enforcement officers.       Even more frequently, such incidents have

involved large-capacity magazines.            One study of sixty-two mass

shootings between 1982 and 2012, for example, found that the

perpetrators   were    armed      with    assault   rifles    in    21%   of   the

massacres and with large-capacity magazines in 50% or more (as

it   was   unknown    to    the    researchers      whether    large-capacity

magazines were involved in many of the cases).                     Another study



more stringent than the federal ban, which not only allowed the
possession of any existing LCMs, but also: (i) the importation
for sale of large stocks of LCMs from other countries; and
(ii) the ongoing sale, transfer, and receipt of both existing
stocks of LCMs and the newly-imported LCMs.”    Id. at 363. The
federal assault weapons ban, in Koper’s words, “did not even
preclude individuals from going to the gun store around the
corner to purchase a [large-capacity magazine].” Id.



                                         23
determined      that     assault      weapons,      including      long     guns    and

handguns,      were    used    in   16%    of   the    murders     of    on-duty     law

enforcement officers in 1994, and that large-capacity magazines

were used in 31% to 41% of those murders.                    The banned assault

weapons    have   also       been   used   in   other    crimes,        including    the

infamous “D.C. Sniper” shootings in 2002, in which an AR-15-type

Bushmaster rifle was used to kill and critically injure more

than a dozen randomly selected victims, including several in

Maryland. 6

     The      State    has    emphasized    that,     when   the    banned    assault

weapons and large-capacity magazines are used, more shots are

fired and more fatalities and injuries result than when shooters

use other firearms and magazines.                 The banned assault weapons

further pose a heightened risk to civilians in that “rounds from

assault    weapons      have    the    ability    to    easily     penetrate        most

materials used in standard home construction, car doors, and

similar materials.”            See J.A. 279.          Criminals armed with the

banned assault weapons possess a “military-style advantage” in

firefights with law enforcement officers, as such weapons “allow

     6 Tragic events involving assault weapons continue to occur.
On July 7, 2016, a shooter armed with a semiautomatic assault
rifle killed five law enforcement officers and injured nine
others, plus two civilians, in Dallas, Texas.      Just ten days
later, on July 17, 2016, another shooter armed with a
semiautomatic assault rifle shot six police officers in Baton
Rouge, Louisiana, killing three of them.



                                           24
criminals to effectively engage law enforcement officers from

great distances” and “their rounds easily pass through the soft

body armor worn by most law enforcement officers.”                            See id. at

227, 265.

      For their part, large-capacity magazines enable shooters to

inflict     mass        casualties    while       depriving         victims     and      law

enforcement officers of opportunities to escape or overwhelm the

shooters while they reload their weapons.                       Even in the hands of

law-abiding citizens, large-capacity magazines are particularly

dangerous.          The     State’s    evidence            demonstrates      that,      when

inadequately trained civilians fire weapons equipped with large-

capacity magazines, they tend to fire more rounds than necessary

and thus endanger more bystanders.

      The State has also underscored the lack of evidence that

the   banned      assault    weapons    and      large-capacity          magazines       are

well-suited        to     self-defense.          Neither        the    plaintiffs        nor

Maryland     law    enforcement       officials         could    identify      a     single

incident in which a Marylander has used a military-style rifle

or shotgun, or needed to fire more than ten rounds, to protect

herself.       Although      self-defense        is    a    conceivable      use   of    the

banned     assault        weapons,    the     State’s         evidence       reflects     —

consistent with the Supreme Court’s Heller decision — that most

individuals choose to keep other firearms for that purpose.                              See

District     of    Columbia     v.    Heller,         554    U.S.     570,   628     (2008)

                                            25
(emphasizing     that     handguns      are        “overwhelmingly           chosen    by

American society for [self-defense]”).                      Moreover, the State’s

evidence substantiates “that it is rare for a person, when using

a firearm in self-defense, to fire more than ten rounds.”                             See

J.A. 649.      Studies of “armed citizen” stories collected by the

National    Rifle     Association,     covering        1997-2001       and    2011-2013,

found that the average number of shots fired in self-defense was

2.2 and 2.1, respectively.           Id. at 650.

     In support of the FSA, the State garnered evidence showing

that the prohibitions against assault weapons and large-capacity

magazines      will     promote       public       safety       by     reducing        the

availability     of    those     armaments       to    mass    shooters       and    other

criminals,     by     diminishing       their         especial       threat     to    law

enforcement     officers,      and    by        hindering      their    unintentional

misuse by civilians.             The State does not expect the FSA to

eradicate all gun crimes and accidents, but rather to curtail

those   that   result     in   more    shots       fired      and    more    deaths   and

injuries because they are committed with military-style firearms

and magazines.

     The State’s evidence indicates that the FSA will reduce the

availability of the banned assault weapons and large-capacity

magazines to criminals by “reducing their availability overall.”

See J.A. 228.         That is because criminals usually obtain their

firearms     through     straw     purchases,         by    buying      them    on    the

                                           26
secondary market, or by stealing them from law-abiding persons,

and    most    criminals     “are   simply     not     dedicated         enough    to    a

particular type of firearm or magazine to go to great lengths to

acquire something that is not readily available.”                    Id. at 232.

       The State has also pointed to an important lesson learned

from   Newtown      (where   nine   children     were    able       to    run     from   a

targeted      classroom    while    the   gunman      paused   to    change        out   a

large-capacity thirty-round magazine), Tucson (where the shooter

was finally tackled and restrained by bystanders while reloading

his firearm), and Aurora (where a 100-round drum magazine was

emptied without any significant break in the firing).                           That is,

reducing      the   number    of    rounds     that    can     be    fired        without

reloading increases the odds that lives will be spared in a mass

shooting.      For example, a shooter’s use of ten-round magazines —

rather than those that hold thirty, fifty, or 100 rounds — would

for every 100 rounds fired afford

       six to nine more chances for bystanders or law
       enforcement to intervene during a pause in firing, six
       to nine more chances for something to go wrong with a
       magazine during a change, six to nine more chances for
       the shooter to have problems quickly changing a
       magazine under intense pressure, and six to nine more
       chances for potential victims to find safety during a
       pause in firing.

See J.A. 266.         Thus, the State has justified the FSA on the

ground that limiting a shooter to a ten-round magazine could




                                          27
“mean the difference between life and death for many people.”

Id.

                                              2.

        For their part, the plaintiffs have purported to dispute

the    State’s    evidence      equating       the    FSA-banned       assault    weapons

with     the     M16,     but       have   not       produced        evidence    actually

demonstrating that the banned assault weapons are less dangerous

than     or     materially          distinguishable        from        military     arms.

Otherwise, the plaintiffs have emphasized the popularity of the

banned    assault       weapons,     particularly       the     AR-15,    semiautomatic

AK-47, and their copies.              Those weapons are often referred to by

the    plaintiffs,       and    in    their    evidence,        as    “modern    sporting

rifles.”

        As previously mentioned, the plaintiffs have asserted that

there    were    at   least     8    million       FSA-banned    assault    weapons    in

circulation in the United States by 2013.                       Rifles based on the

AR-15 and AK-47 accounted for approximately 20% of firearm sales

in the United States in 2012, and the banned assault weapons

comprised between 18% and 30% of all regulated firearm transfers

in Maryland in 2013.                The plaintiffs’ evidence reflects that,

since it was first marketed to the public in 1963, “[t]he AR-15

has become the most popular civilian rifle design in America,

and is made in many variations by many companies.”                               See J.A.

2259.

                                              28
        The        plaintiffs        have   also     focused             on    the    popularity       of

large-capacity magazines, tendering evidence that in the United

States between 1990 and 2012, magazines capable of holding more

than        ten    rounds    numbered        around          75    million,          or   46%   of    all

magazines owned.                Most pistols are manufactured with magazines

holding ten to seventeen rounds, and many popular rifles are

manufactured          with      magazines       holding           twenty        or    thirty    rounds.

Firearms           capable      of     firing      more           than        ten    rounds     without

reloading may have existed since the late sixteenth century, and

magazines with a capacity of between ten and twenty rounds have

been on the civilian market for more than a hundred years.

        Individual plaintiffs Kolbe and Turner have averred that

they        wish    to    own    banned      assault          weapons          and    large-capacity

magazines for self-defense.                     The plaintiffs have more generally

asserted           that     many      owners       of        assault          weapons      cite      home

protection as a reason for keeping those weapons, along with

other        lawful       purposes          such        as        hunting           and   competitive

marksmanship. 7           The plaintiffs regard large-capacity magazines as


        7
       Prior to the en banc argument, we allowed the plaintiffs
to file a supplemental appendix containing two reports published
in 2015 by the National Shooting Sports Foundation (the “NSSF”),
including a “Firearms Retailer Survey Report” outlining the
results of an online survey of more than 500 firearms retailers
across the country. Relevant to the issue of self-defense, one
survey question asked: “Of your annual firearm sales [for each
year from 2011 to 2014], please report the percentages you think
were sold primarily for hunting, target-shooting and personal-
(Continued)
                                                   29
especially useful for self-defense, because it is difficult for

a   civilian       to    change     a    magazine        while    under      the   stress   of

defending    herself        and     her    family        from    an     unexpected   attack.

Moreover,      a        civilian        firing        rounds     in     self-defense    will

frequently     miss        her     assailant,           rendering       it   “of    paramount

importance that [she] have quick and ready access to ammunition

in quantities sufficient to provide a meaningful opportunity to

defend herself and/or her loved ones.”                         See J.A. 2123.

      To    refute        the      theory        that     the     FSA     will     effectuate

Maryland’s goal of protecting its citizens and law enforcement

officers, the plaintiffs have pointed to a variety of evidence.

For example, the FSA does not disallow the Colt AR-15 Sporter H-

BAR rifle, which the plaintiffs’ evidence suggests “could be

made into a compact lightweight short-barrel AR pattern rifle

identical to the restricted models” while remaining “exempted

from the restrictions of the law.”                             See J.A. 2270-71.            The

plaintiffs’ evidence also indicates that rounds from firearms

not prohibited by the FSA are capable of penetrating building

materials and soft body armor; that “[t]he banned firearms are




protection purposes.” See J.A. 3063. The respondents indicated
that they “think” between 28.1% and 30.5% of “AR-style/modern
sporting rifles” were sold primarily for personal protection.
Id.    The NSSF report, however, does not reveal why the
respondents “think” that.



                                                 30
almost     never   used    in   crimes”;    that,   “in   2012,    there   was   a

greater probability that a person in the United States would be

killed by someone strangling them than by an assault rifle in a

mass   shooting”;    and    that   “[m]ore    officers    are     killed   in   car

accidents than with the banned firearms.”                  See id. at 2160,

2280-81, 2371-97.         Additionally, the plaintiffs have emphasized

that, because the FSA does not prohibit the possession of large-

capacity     magazines,     a    criminal    can    legally     purchase    those

magazines in another state and return with them to Maryland. 8



                                      II.

       On appeal, the plaintiffs contend that the district court

erred in ruling in favor of the State on the parties’ cross-

motions for summary judgment.          More specifically, the plaintiffs


       8
       Further attacking Maryland’s justification for the FSA,
the plaintiffs have endeavored to show that the 1994 federal ban
on assault weapons and large-capacity magazines was ineffective,
and thus that the FSA will be a failure, too. In so doing, the
plaintiffs rely on snippets from the studies of the State’s
expert, Dr. Koper.    See supra note 5.     Dr. Koper ultimately
concluded, however, that — despite features of the federal ban
that may have limited its efficacy (including its grandfather
clause   for  assault   weapons  and   large-capacity  magazines
manufactured prior to its effective date) — the federal ban had
some success and could have had more had it remained in effect.
Additionally, Dr. Koper opined that Maryland’s stricter FSA has
“the potential to prevent and limit shooting injuries in the
state over the long-run” and thereby “advance Maryland’s
interest in reducing the harms caused by gun violence.”      See
J.A. 364.



                                       31
seek reversal of the adverse summary judgment award and entry of

judgment in their favor.              We review de novo the district court’s

summary   judgment          decision.       See    Libertarian        Party    of    Va.    v.

Judd, 718 F.3d 308, 312 (4th Cir. 2013).                        With respect to each

side’s    motion,      “we     are    required      to   view    the    facts       and    all

justifiable      inferences          arising      therefrom      in    the    light       most

favorable to the nonmoving party, in order to determine whether

‘there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.’”                                 Id. at

312-13 (quoting Fed. R. Civ. P. 56(a)).



                                            III.

       We begin with the plaintiffs’ claims that the FSA’s assault

weapons ban and its prohibition against large-capacity magazines

contravene the Second Amendment.                    According to the plaintiffs,

they are entitled to summary judgment on the simple premise that

the   banned     assault       weapons      and    large-capacity           magazines      are

protected       by    the    Second     Amendment        and,    thus,       the    FSA     is

unconstitutional per se.              We conclude, to the contrary, that the

banned    assault      weapons       and    large-capacity          magazines       are    not

constitutionally        protected          arms.      Even      assuming      the    Second

Amendment reaches those weapons and magazines, however, the FSA

is    subject    to    —      and    readily       survives     —     the     intermediate

scrutiny standard of review.                   Consequently, as to the Second

                                             32
Amendment claims, we must affirm the district court’s award of

summary judgment to the State.

                                           A.

       The Second Amendment provides, “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.”                          See

U.S. Const. amend. II.          In District of Columbia v. Heller, the

Supreme Court recognized that the Second Amendment is divided

into    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.”).                      See 554 U.S. 570, 577

(2008).      The   Heller     majority      rejected       the   proposition    that,

because of its prefatory clause, the Second Amendment “protects

only the right to possess and carry a firearm in connection with

militia service.”         Id.     Rather, the Court determined that, by

its    operative    clause,     the   Second       Amendment      guarantees        “the

individual     right     to   possess      and     carry    weapons   in     case    of

confrontation.”        Id. at 592.        The Court also explained that the

operative clause “fits perfectly” with the prefatory clause, in

that creating the individual right to keep and bear arms served

to preserve the militia that consisted of self-armed citizens at

the time of the Second Amendment’s ratification.                   Id. at 598.



                                           33
      The Second Amendment’s “core protection,” the Heller Court

announced, is “the right of law-abiding, responsible citizens to

use arms in defense of hearth and home.”                      See 554 U.S. at 634-

35.   Concomitantly, the Court emphasized that “the right secured

by the Second Amendment is not unlimited,” in that it is “not a

right to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose.”                    Id. at 626.            The Court

cautioned,    for    example,   that     it     was     not    “cast[ing]        doubt    on

longstanding       prohibitions    on     the      possession        of    firearms       by

felons and the mentally ill, or laws 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.”         Id.

      Of utmost significance here, the Heller Court recognized

that “another       important   limitation         on    the    right      to    keep    and

carry arms” is that the right “extends only to certain types of

weapons.”     See 554 U.S. at 623, 627 (discussing United States v.

Miller, 307 U.S. 174 (1939)).                 The Court explained that “the

Second Amendment does not protect those weapons not typically

possessed     by     law-abiding        citizens        for     lawful          purposes,”

including “short-barreled shotguns” and “machineguns.”                             Id. at

624-25.      The Court elsewhere described “the sorts of weapons

protected”    as    being   “those   in    common        use    at   the    time,”       and

observed     that    such   “limitation       is      fairly     supported        by     the

                                         34
historical tradition of prohibiting the carrying of dangerous

and    unusual       weapons.”         Id.   at     627   (internal   quotation      marks

omitted) (citing, inter alia, 4 Blackstone 148-49 (1769)). 9

       Continuing         on,    the   Heller       Court   specified   that       “weapons

that are most useful in military service — M-16 rifles and the

like       —   may   be   banned”      without       infringement     upon   the     Second

Amendment right.             See 554 U.S. at 627.              The Court recognized

that the lack of constitutional protection for today’s military

weapons might inspire the argument that “the Second Amendment

right is completely detached from the prefatory clause.”                                 Id.

The Court explained, however, that the fit between the prefatory

and operative clauses is properly measured “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.      The    fit    is   not

measured today, when a militia may “require sophisticated arms

that are highly unusual in society at large,” including arms

that “could be useful against modern-day bombers and tanks.”

Id.     It was therefore immaterial to the Court’s interpretation

       9
       Although the Heller Court invoked Blackstone for the
proposition   that   “dangerous  and   unusual”    weapons  have
historically been prohibited, Blackstone referred to the crime
of carrying “dangerous or unusual weapons.”     See 4 Blackstone
148-49 (1769) (emphasis added).



                                               35
of the Second Amendment that “modern developments have limited

the degree of fit between the prefatory clause and the protected

right.”       Id.    at    627-28.         And     thus,    there      was    simply     no

inconsistency between the Court’s interpretation of the Second

Amendment and its pronouncement that some of today’s weapons

lack constitutional protection precisely because they “are most

useful in military service.”

       Deciding the particular Second Amendment issues before it,

the Heller Court deemed the District of Columbia’s prohibition

against      the    possession       of     handguns       in    the     home    to     be

unconstitutional.          See 554 U.S. at 628-29.               Without identifying

and utilizing a particular standard for its review, the Court

concluded that, “[u]nder any of the standards of scrutiny that

we    have   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. (footnote and internal quotation

marks omitted).

       The Heller Court clearly was concerned that the District of

Columbia’s ban extended “to the home, where the need for defense

of self, family, and property is most acute.”                       See 554 U.S. at

628.    Significantly, however, the Court also was troubled by the

particular type of weapon prohibited — handguns.                             Indeed, the

Court     repeatedly       made   comments         underscoring        the    status     of

                                            36
handguns as “the most preferred firearm in the nation to keep

and use for protection of one’s home and family,” including the

following:

     ●     “The handgun ban amounts to a prohibition of an
           entire class of arms that is overwhelmingly
           chosen by American society for [the] lawful
           purpose [of self-defense]”;

     ●     “It is no answer to say . . . that it is
           permissible to ban the possession of handguns so
           long as the possession of other firearms (i.e.,
           long guns) is allowed.     It is enough to note
           . . . that the American people have considered
           the handgun to be the quintessential self-defense
           weapon”; and,

     ●     “Whatever the reason, handguns are the most
           popular weapon chosen by Americans for self-
           defense in the home, and a complete prohibition
           of their use is invalid.”

See id. at 628-29 (internal quotation marks omitted).

     As explained therein, the Heller decision was not intended

“to clarify the entire field” of Second Amendment jurisprudence.

See 554 U.S. at 635.      Since then, the Supreme Court decided in

McDonald v. City of Chicago “that the Second Amendment right is

fully applicable to the States,” but did not otherwise amplify

Heller’s   analysis.      See   561    U.S.   742,    750    (2010).     Just

recently, in Caetano v. Massachusetts, the Court reiterated two

points   made   by   Heller:    first,     “that     the    Second   Amendment

‘extends . . . to . . . arms . . . that were not in existence at

the time of the founding’”; and, second, that there is no merit

to “the proposition ‘that only those weapons useful in warfare

                                      37
are protected.’”        See Caetano, 136 S. Ct. 1027, 1028 (2016) (per

curiam) (alterations in original) (quoting Heller, 554 U.S. at

582,    624-25)      (remanding   for   further        consideration       of   whether

Second Amendment protects stun guns).

       The lower courts have grappled with Heller in a variety of

Second    Amendment     cases.       Like       most   of   our   sister    courts    of

appeals, we have concluded that “a two-part approach to Second

Amendment claims seems appropriate under Heller.”                          See United

States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (citing

United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010));

see also N.Y. State Rifle & Pistol Ass’n 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); United States v.

Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Nat’l 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) (“Heller II”);

Ezell v. City of Chicago, 651 F.3d 684, 703-04 (7th Cir. 2011);

United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010).

       Pursuant to that two-part approach, we first ask “whether

the challenged law imposes a burden on conduct falling within

the scope of the Second Amendment’s guarantee.”                        See Chester,

628 F.3d at 680 (internal quotation marks omitted).                             If the

                                           38
answer is no, “then the challenged law is valid.”                                        Id.    If,

however,     the       challenged      law    imposes          a     burden         on    conduct

protected     by       the    Second     Amendment,            we     next      “apply[]         an

appropriate form of means-end scrutiny.”                            Id.    Because “Heller

left open the level of scrutiny applicable to review a law that

burdens conduct protected under the Second Amendment, other than

to indicate that rational-basis review would not apply in this

context,”     we       must     “select       between          strict          scrutiny          and

intermediate       scrutiny.”          Id.    at       682.          In    pinpointing          the

applicable    standard        of   review,        we     may   “look[]         to    the       First

Amendment    as    a    guide.”        Id.        With    respect         to   a    claim      made

pursuant to the First or the Second Amendment, “the level of

scrutiny we apply depends on the nature of the conduct being

regulated and the degree to which the challenged law burdens the

right.”    Id.

     To satisfy strict scrutiny, the government must prove that

the challenged law is “narrowly tailored to achieve a compelling

governmental interest.”             See Abrams v. Johnson, 521 U.S. 74, 82

(1997).      Strict scrutiny is thereby “the most demanding test

known to constitutional law.”                See City of Boerne v. Flores, 521

U.S. 507, 534 (1997).           The less onerous standard of intermediate

scrutiny requires the government to show that the challenged law

“is reasonably adapted to a substantial governmental interest.”

See United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir.

                                             39
2011); see also Chester, 628 F.3d at 683 (“[T]he government must

demonstrate under the intermediate scrutiny standard that there

is    a    reasonable      fit   between   the    challenged       regulation      and   a

substantial governmental objective.” (internal quotation marks

omitted)).             Intermediate    scrutiny      does    not    demand      that    the

challenged law “be the least intrusive means of achieving the

relevant         government      objective,     or   that    there      be    no   burden

whatsoever         on     the    individual      right      in     question.”           See

Masciandaro, 638 F.3d at 474.              In other words, there must be “a

fit       that    is    ‘reasonable,    not     perfect.’”         See       Woollard    v.

Gallagher, 712 F.3d 865, 878 (4th Cir. 2013) (quoting United

States v. Carter, 669 F.3d 411, 417 (4th Cir. 2012)).

          Until this Second Amendment challenge to the FSA’s bans on

assault weapons and large-capacity magazines, we have not had

occasion to identify the standard of review applicable to a law

that bars law-abiding citizens from possessing arms in their

homes.       In Masciandaro, we “assume[d] that any law that would

burden the ‘fundamental,’ core right of self-defense in the home

by a law-abiding citizen would be subject to strict scrutiny.”

See 638 F.3d at 470.               Thereafter, in Woollard, we noted that

Masciandaro         had    “‘assume[d]’”      any    inside-the-home          regulation

would      be    subject    to    strict   scrutiny,        and    we    described      the

plaintiff’s related — and unsuccessful — contention that “the

right to arm oneself in public [is] on equal footing with the

                                           40
right to arm oneself at home, necessitating that we apply strict

scrutiny    in   our     review    of   [an     outside-the-home         regulation].”

See Woollard, 712 F.3d at 876, 878 (4th Cir. 2013) (quoting

Masciandaro,       638   F.3d     at    470).       Notably,     however,        neither

Masciandaro nor Woollard purported to, or had reason to, decide

whether strict scrutiny always, or even ever, applies to laws

burdening the right of self-defense in the home.                              See also,

e.g., United States v. Hosford, 843 F.3d 161, 168 (4th Cir.

2016)     (declining      to    apply      strict     scrutiny      to    a     firearms

prohibition that “addresses only conduct occurring outside the

home,” without deciding if or when strict scrutiny applies to a

law reaching inside the home).

                                           B.

       Guided by our two-part approach to Second Amendment claims,

but    lacking     precedent      of    this    Court   or    the    Supreme       Court

examining the constitutionality of a law substantively similar

to the FSA, the district court began its analysis by questioning

whether the banned assault weapons and large-capacity magazines

are    protected    by    the     Second    Amendment.         Addressing        assault

weapons     in   particular,        the     Opinion     disclosed        the     court’s

“inclin[ation] to find the weapons fall outside Second Amendment

protection as dangerous and unusual,” based on “serious[] doubts

that    [they]     are     commonly        possessed    for      lawful        purposes,

particularly self-defense in the home.”                  See Kolbe v. O’Malley,

                                           41
42 F. Supp. 3d 768, 788 (D. Md. 2014).              The Opinion further

observed that, “[g]iven that assault rifles like the AR-15 are

essentially the functional equivalent of M-16s — and arguably

more effective — the [reasoning of Heller that M-16s could be

banned as dangerous and unusual] would seem to apply here.”           Id.

at 789 n.29 (citing Heller, 554 U.S. at 627).

       Ultimately, however, the district court elected to assume

that the banned assault weapons and large-capacity magazines are

constitutionally protected, and thus that the FSA “places some

burden on the Second Amendment right.”           See Kolbe, 42 F. Supp.

3d at 789.     The Opinion then identified intermediate scrutiny as

the appropriate standard of review, because the FSA “does not

seriously impact a person’s ability to defend himself in the

home.”    Id. at 790.    In so ruling, the court recognized that the

FSA “does not ban the quintessential weapon — the handgun —

used for self-defense in the home” or “prevent an individual

from keeping a suitable weapon for protection in the home.”           Id.

at 790.      Finally, applying the intermediate scrutiny standard,

the Opinion recognized that the State of Maryland possesses an

interest that is not just substantial — but compelling — “in

providing for public safety and preventing crime.”           Id. at 792.

A reasonable fit between that interest and the FSA was shown,

according to the Opinion, by evidence of the heightened risks

that   the   banned   assault   weapons   and   large-capacity   magazines

                                    42
pose to civilians and law enforcement officers.                        See id. at 793-

97.     Accordingly,        the    district         court    concluded   that        the   FSA

“does not violate the Second Amendment.”                      Id. at 797.

      In its analysis, the district court relied in part on the

2011 decision of the District of Columbia Circuit in Heller II.

The Heller II court assumed that the District’s prohibitions

against        military-style          assault        rifles     and     large-capacity

magazines       impinge     upon       the   Second     Amendment      right    and        then

upheld the bans under the intermediate scrutiny standard.                                   See

670   F.3d     at    1261-64.          After    the    district     court   issued         its

Opinion, statewide bans on the AR-15 and semiautomatic AK-47,

other assault weapons, and large-capacity magazines in New York

and Connecticut were similarly sustained by the Second Circuit’s

2015 decision in N.Y. State Rifle & Pistol Ass’n.                              There, the

court     of    appeals         proceeded      “on    the      assumption      that        [the

challenged] laws ban weapons protected by the Second Amendment”;

determined “that intermediate, rather than strict, scrutiny is

appropriate”; and concluded “that New York and Connecticut have

adequately      established        a    substantial         relationship    between        the

prohibition         of   both    semiautomatic        assault     weapons      and    large-

capacity magazines and the important — indeed, compelling —

state interest in controlling crime.”                        See N.Y. State Rifle &

Pistol Ass’n, 804 F.3d at 257, 260, 264.                           The Supreme Court

recently denied the Connecticut plaintiffs’ petition for a writ

                                               43
of certiorari in that matter.                   See Shew v. Malloy, 136 S. Ct.

2486 (2016).

      In the time period between Heller II and N.Y. State Rifle &

Pistol Ass’n, two other courts of appeals refused to enjoin or

strike down bans on assault weapons or large-capacity magazines.

Affirming the denial of a preliminary injunction in Fyock v.

City of Sunnyvale, the Ninth Circuit concluded that the district

court neither “clearly err[ed] in finding, based on the record

before it, that a regulation restricting possession of [large-

capacity magazines] burdens conduct falling within the scope of

the Second Amendment,” nor “abused its discretion by applying

intermediate       scrutiny        or    by     finding    that     [the       regulation]

survived intermediate scrutiny.”                    See 779 F.3d 991, 998-99 (9th

Cir. 2015).       Thereafter, in Friedman v. City of Highland Park,

the Seventh Circuit upheld prohibitions against assault weapons

and   large-capacity        magazines,         albeit     without    applying         either

intermediate or strict scrutiny.                     Under Friedman’s reasoning,

“instead of trying to decide what ‘level’ of scrutiny applies,

and   how   it    works,”     it    is    more      suitable   “to       ask    whether   a

regulation       bans   weapons         that    were    common      at    the    time     of

ratification or those that have some reasonable relationship to

the preservation or efficiency of a well regulated militia, and

whether     law-abiding      citizens          retain   adequate     means       of    self-



                                               44
defense.”         See 784 F.3d 406, 410 (7th Cir.) (internal quotation

marks omitted), cert. denied, 136 S. Ct. 447 (2015).

                                                 C.

        We    could      resolve     the    Second          Amendment    aspects           of   this

appeal       by    adopting     the       district      court’s       sound     analysis        and

thereby follow the lead of our distinguished colleagues on the

Second and District of Columbia Circuits.                               That is, we could

simply       assume      that      the     assault          weapons    and    large-capacity

magazines         outlawed      in   Maryland         are     protected       by     the     Second

Amendment         and    then      deem    the        FSA     constitutional         under      the

intermediate            scrutiny      standard         of      review.          It      is      more

appropriate, however, in light of the dissent’s view that such

constitutional protection exists, that we first acknowledge what

the Supreme Court’s Heller decision makes clear:                                   Because the

banned assault weapons and large-capacity magazines are “like”

“M-16    rifles”         —   “weapons       that       are    most    useful       in   military

service” — they are among those arms that the Second Amendment

does not shield.             See Heller, 554 U.S. at 627 (recognizing that

“M-16 rifles and the like” are not constitutionally protected).

                                                 1.

        On   the    issue     of     whether     the        banned    assault      weapons      and

large-capacity magazines are protected by the Second Amendment,

the Heller decision raises various questions.                                 Those include:

How many assault weapons and large-capacity magazines must there

                                                 45
be to consider them “in common use at the time”?                    In resolving

that issue, should we focus on how many assault weapons and

large-capacity magazines are owned; or on how many owners there

are; or on how many of the weapons and magazines are merely in

circulation?     Do we count the weapons and magazines in Maryland

only, or in all of the United States?              Is being “in common use

at the time” coextensive with being “typically possessed by law-

abiding citizens for lawful purposes”?          Must the assault weapons

and   large-capacity    magazines      be   possessed         for   any    “lawful

purpose[]”     or,    more     particularly        and        importantly,       the

“protection of one’s home and family”?             Is not being “in common

use at the time” the same as being “dangerous and unusual”?                      Is

the   standard    “dangerous     and    unusual,”        or    is   it    actually

“dangerous or unusual”?        See Heller, 554 U.S. at 625, 627, 629;

see also N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 254-57;

Friedman, 784 F.3d at 408-10; Fyock, 779 F.3d at 997-98; Heller

II, 670 F.3d at 1260-61.

      Thankfully, however, we need not answer all those difficult

questions    today,    because   Heller     also     presents       us    with    a

dispositive and relatively easy inquiry:            Are the banned assault

weapons and large-capacity magazines “like” “M-16 rifles,” i.e.,

“weapons that are most useful in military service,” and thus

outside the ambit of the Second Amendment?               See 554 U.S. at 627.



                                       46
The answer to that dispositive and relatively easy inquiry is

plainly in the affirmative. 10

     Simply put, AR-15-type rifles are “like” M16 rifles under

any standard definition of that term.       See, e.g., Webster’s New

International Dictionary 1431 (2d ed. 1948) (defining “like” as

“[h]aving the same, or nearly the same, appearance, qualities,

or   characteristics;   similar”);    The    New   Oxford   American

Dictionary 982 (2d ed. 2005) (defining “like” as “having the

same characteristics or qualities as; similar to”).      Although an

     10 Our ruling on Second Amendment protection is in line with
the State’s argument that — because the banned assault weapons
and large-capacity magazines are “like” “M-16 rifles” and “most
useful in military service” — they are “dangerous and unusual
weapons” that are beyond the Second Amendment’s reach.          See
Heller, 554 U.S. at 627; see also Br. of Appellees at 2-4, 16-
23; Defs.’ Mem. in Supp. of Summ. J. at 3-10, 32-37, Kolbe v.
O’Malley, No. 1:13-cv-02841 (D. Md. Feb. 14, 2014), ECF No. 44.
We find it unnecessary under Heller, however, to include the
term “dangerous and unusual weapons” in the relevant inquiry.
That is because the Heller Court plainly pronounced that
“weapons that are most useful in military service — M-16 rifles
and the like — may be banned” without infringement upon the
Second Amendment right.      See 554 U.S. at 627.        Meanwhile,
although the Heller Court suggested that those particular
weapons are “dangerous and unusual,” the Court did not elaborate
on what being “dangerous and unusual” entails.      Id.    In these
circumstances, we deem it prudent and appropriate to simply rely
on   the   Court’s    clear  pronouncement   that   there    is  no
constitutional protection for weapons that are “like” “M-16
rifles”   and   “most   useful  in   military   service,”   without
needlessly endeavoring to define the parameters of “dangerous
and unusual weapons.” Questions about that term and the phrases
“in common use at the time” and “typically possessed by law-
abiding citizens for lawful purposes” are best left for cases
involving other sorts of weapons, such as the stun guns at issue
in Caetano.



                                 47
M16 rifle is capable of fully automatic fire and the AR-15 is

limited to semiautomatic fire, their rates of fire (two seconds

and as little as five seconds, respectively, to empty a thirty-

round       magazine)       are    nearly      identical.        Moreover,        in   many

situations, the semiautomatic fire of an AR-15 is more accurate

and lethal than the automatic fire of an M16.                             Otherwise, the

AR-15 shares the military features — the very qualities and

characteristics — that make the M16 a devastating and lethal

weapon of war.

       In     any    event,       we    need   not     rely   solely      on    dictionary

definitions, because Heller itself expounds on what it means to

be “like” the M16.            As the plaintiffs would have it, Heller drew

a     “bright       line”    between        fully    automatic      and    semiautomatic

firearms, and thus the AR-15 cannot be considered “like” the M16

for    purposes       of    the    Second      Amendment.        That     contention     is

baseless, however, because Heller did not restrict the meaning

of “M-16 rifles and the like” to only fully automatic weapons.

Rather,       Heller       described        “M-16    rifles   and    the       like”   more

broadly, specifically identifying them as being those “weapons

that    are     most    useful         in   military    service.”         Therefore,     we

identify the line that Heller drew as not being between fully




                                               48
automatic and semiautomatic firearms, but between weapons that

are most useful in military service and those that are not. 11

     Whatever    their      other   potential       uses    —     including     self-

defense — the AR-15, other assault weapons, and large-capacity

magazines prohibited by the FSA are unquestionably most useful

in military service.          That is, the banned assault weapons are

designed to “kill[] or disabl[e] the enemy” on the battlefield.

See J.A. 735.        The very features that qualify a firearm as a

banned    assault    weapon     —   such    as    flash     suppressors,       barrel

shrouds, folding and telescoping stocks, pistol grips, grenade

launchers, night sights, and the ability to accept bayonets and

large-capacity      magazines   —    “serve       specific,      combat-functional

ends.”     See   id.   at   1120.     And,       “[t]he    net   effect   of   these


     11 As further support for the Supreme Court’s purported line
between   fully   automatic  and   semiautomatic  firearms,   the
plaintiffs rely on Staples v. United States, 511 U.S. 600
(1994).   There, the Court invalidated Staples’s conviction for
failing to register a machinegun, because the government had not
been required to prove that Staples knew his AR-15 had been
modified to be capable of fully automatic fire.     In explaining
its decision, the Court noted that AR-15s “traditionally have
been widely accepted as lawful possessions” in this country.
See Staples, 511 U.S. at 612. That statement might be pertinent
to this dispute if the State were arguing that the FSA is a
“longstanding prohibition[]” against assault weapons and thus
presumptively valid.    See Heller, 554 U.S. at 626 (cautioning
that “nothing in our opinion should be taken to cast doubt on
[certain] longstanding prohibitions”).    But the issue actually
before us is one that the Staples Court did not address:
Whether, because of its likeness to the M16 rifle, the AR-15
lacks Second Amendment protection.



                                       49
military combat features is a capability for lethality — more

wounds, more serious, in more victims — far beyond that of other

firearms in general, including other semiautomatic guns.”                       Id.

at 1121-22.

     Likewise,       the     banned       large-capacity          magazines    “are

particularly designed and most suitable for military and law

enforcement applications.”               See J.A. 891 (noting that large-

capacity magazines are meant to “provide[] soldiers with a large

ammunition supply and the ability to reload rapidly”).                        Large-

capacity    magazines      enable    a    shooter    to    hit    “multiple    human

targets very rapidly”; “contribute to the unique function of any

assault weapon to deliver extraordinary firepower”; and are a

“uniquely military feature[]” of both the banned assault weapons

and other firearms to which they may be attached.                      See id. at

1151.

     Because       the   banned     assault    weapons      and     large-capacity

magazines are clearly most useful in military service, we are

compelled     by    Heller    to    recognize       that    those    weapons     and

magazines are not constitutionally protected.                    On that basis, we

affirm the district court’s award of summary judgment in favor




                                          50
of the State with respect to the plaintiffs’ Second Amendment

claims. 12

                                           2.

     In the alternative, assuming that the assault weapons and

large-capacity       magazines         prohibited     by   the     FSA    are    somehow

entitled to Second Amendment protection, we conclude that the

district court properly upheld the FSA as constitutional under

the intermediate scrutiny standard of review.

                                           a.

     First     of   all,        intermediate     scrutiny     is    the   appropriate

standard     because      the    FSA    does    not   severely     burden       the    core

protection    of    the    Second      Amendment,     i.e.,   the    right       of    law-

abiding, responsible citizens to use arms for self-defense in

the home.     See N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 260

(“Heightened scrutiny need not . . . be akin to strict scrutiny

when a law burdens the Second Amendment — particularly when that

burden     does     not    constrain       the    Amendment’s        core       area    of

     12 In light of our ruling today, we need not reach the
State’s alternative contention that large-capacity magazines
lack constitutional protection because they are not “arms”
within the meaning of the Second Amendment.  See Heller, 554
U.S. at 582 (observing that the Second Amendment extends to
“bearable arms”); Br. of Appellees at 26 (“A large-capacity
detachable magazine is not an ‘arm’ . . . .   Indeed, large-
capacity magazines are not even ammunition, but instead are
devices used for feeding ammunition into firearms that can
easily be switched out for other devices that are of lower
capacity . . . .”).



                                           51
protection.” (internal quotation marks omitted)); Chester, 628

F.3d at 682 (“A severe burden on the core Second Amendment right

of armed self-defense should require strong justification.                                   But

less    severe       burdens    on     the    right     . . .      may     be    more    easily

justified.” (quoting United States v. Skoien, 587 F.3d 803, 813-

14    (7th    Cir.     2009),      rev’d     en    banc,    614    F.3d        638    (7th   Cir.

2010))).

       The     FSA     bans     only      certain      military-style            weapons      and

detachable       magazines,            leaving       citizens           free     to     protect

themselves with a plethora of other firearms and ammunition.

Those        include       magazines         holding        ten     or     fewer        rounds,

nonautomatic         and    some     semiautomatic          long    guns,       and     —    most

importantly       —     handguns.            The    handgun,       of    course,       is    “the

quintessential self-defense weapon.”                        See Heller, 554 U.S. at

629.     In contrast, there is scant evidence in the record before

us     that    the     FSA-banned         assault      weapons      and        large-capacity

magazines are possessed, or even suitable, for self-protection.

See Kolbe, 42 F. Supp. 3d at 791 (observing that, although the

FSA prohibits “a class of weapons that the plaintiffs desire to

use     for    self-defense          in    the      home,    there        is     no    evidence

demonstrating their removal will significantly impact the core

protection       of    the     Second      Amendment”        (emphasis          and    citation

omitted)).



                                               52
       Notably, the plaintiffs invoke the district court’s passing

reference to “a class of weapons” in an effort to frame the AR-

15 and other FSA-banned assault weapons as a “class” entitled to

the same treatment afforded handguns in Heller.                  See Heller, 554

U.S. at 628 (deeming the District of Columbia’s handgun ban to

be unconstitutional because it prohibited “an entire class of

arms   that   is     overwhelmingly      chosen    by   American      society    for

[self-defense]”       (internal     quotation      marks    omitted)).           The

initial weakness in the plaintiffs’ theory is that the banned

assault weapons cannot fairly be said to be a “class” like that

encompassing all handguns, in that the banned assault weapons

are    just   some    of   the   semiautomatic     rifles       and   shotguns    in

existence.     Accord N.Y. State Rifle & Pistol Ass’n, 804 F.3d at

260 (explaining that “New York and Connecticut have not banned

an entire class of arms,” but rather “only a limited subset of

semiautomatic      firearms,     which   contain    one    or    more   enumerated

military-style features”).

       The more critical flaw in the plaintiffs’ theory is that it

ignores the status of handguns as not merely “an entire class of

arms,” but as “an entire class of arms that is overwhelmingly

chosen by American society for [self-defense].”                  See Heller, 554

U.S. at 628 (emphasis added) (internal quotation marks omitted).

As the Third Circuit recently explained, “Heller gives special

consideration to the District of Columbia’s categorical ban on

                                         53
handguns because they ‘are the most popular weapon chosen by

Americans for self-defense in the home.’                 This does not mean

that a categorical ban on any particular type of bearable arm is

unconstitutional.”         See United States v. One (1) Palmetto State

Armory PA-15 Machinegun Receiver/Frame, Unknown Caliber Serial

No.: LW001804, 822 F.3d 136, 144 (3d Cir. 2016) (quoting Heller,

554 U.S. at 629).

      At bottom, the FSA’s prohibitions against assault weapons

and large-capacity magazines simply do “not effectively disarm

individuals    or    substantially     affect    their   ability   to    defend

themselves.”      See N.Y. State Rifle & Pistol Ass’n, 804 F.3d at

260 (quoting Heller II, 670 F.3d at 1262).               Nor can the FSA be

compared to the handgun ban struck down as unconstitutional in

Heller.   Hence, assuming the Second Amendment protects the FSA-

banned assault weapons and large-capacity magazines, the FSA is

subject to the intermediate scrutiny standard of review.

                                       b.

      Turning to the application of intermediate scrutiny, the

FSA   survives      such   review     because    its   prohibitions     against

assault weapons and large-capacity magazines are — as they must

be    —   “reasonably       adapted     to   a   substantial    governmental

interest.”       See Masciandaro, 638 F.3d at 471.             To be sure,

Maryland’s interest in the protection of its citizenry and the

public safety is not only substantial, but compelling.                  See id.

                                       54
at 473 (noting that, “[a]lthough the government’s interest need

not    be    ‘compelling’     under      intermediate         scrutiny,   cases    have

sometimes described the government’s interest in public safety

in that fashion” (citing cases)).

       The     plaintiffs     have       acknowledged     that     Maryland    has     a

compelling interest in protecting the public, but argue that

such purpose cannot be advanced by the FSA.                        In support, the

plaintiffs      have   pointed      to    evidence   that       non-banned    firearms

have    some    of   the    same    attributes      as   the    FSA-banned     assault

weapons,       including      the     capability         to     penetrate     building

materials and soft body armor; that the banned assault weapons

are used in few crimes, especially compared to handguns; and

that    the    FSA   will    not    prevent      criminals      from   obtaining     the

banned assault weapons and large-capacity magazines from other

states. 13

       For its part, the State contends that there is a reasonable

fit between the FSA and Maryland’s interest in public safety.

The State emphasizes the military-style features of the banned

       13
        The plaintiffs also assert that the purported failure of
the 1994 federal assault weapons ban demonstrates that the FSA
cannot advance Maryland’s interest in public safety.          As
previously explained, see supra note 8, the premise of the
plaintiffs’ assertion — that the federal ban was wholly
ineffective — is not supported by the record.      Moreover, the
plaintiffs ignore differences between the federal ban and the
FSA that strengthen the potential efficacy of the FSA’s
prohibitions.



                                            55
assault weapons and large-capacity magazines that render them

particularly attractive to mass shooters and other criminals,

including    those   targeting   police.        The    same     military-style

features pose heightened risks to innocent civilians and law

enforcement officers — certainly because of the capability to

penetrate    building    materials   and    soft     body   armor,     but   also

because of an amalgam of other capabilities that allow a shooter

to cause mass devastation in a very short amount of time.

      Upholding    the   prohibitions      against    assault    weapons     and

large-capacity magazines in New York and Connecticut, the Second

Circuit summarized that,

      [a]t least since the enactment of the federal assault-
      weapons ban, semiautomatic assault weapons have been
      understood to pose unusual risks.    When used, these
      weapons tend to result in more numerous wounds, more
      serious wounds, and more victims.   These weapons are
      disproportionately used in crime, and particularly in
      criminal mass shootings like the attack in Newtown.
      They are also disproportionately used to kill law
      enforcement officers.

See N.Y. State Rifle & Pistol Ass’n, 804 F.3d at 262 (footnotes

omitted); see also id. at 263 (“The record evidence suggests

that large-capacity magazines may present even greater dangers

to   crime   and   violence   than   assault    weapons       alone,   in    part

because they are more prevalent and can be and are used in both

assault weapons and non-assault weapons.” (footnote, alteration,

and internal quotation marks omitted)).



                                     56
      Although the plaintiffs fault the FSA for not targeting the

firearms most used in crime and for not thereby promising to

reduce gun crimes in Maryland overall, that is not the FSA’s

purpose.       Rather, as the State has described it, the primary

goal of the FSA “is to reduce the availability of assault long

guns and large-capacity magazines so that when a criminal acts,

he   does    so    with    a        less    dangerous       weapon      and    less     severe

consequences.”          See Br. of Appellees 42.                  Another objective is

to   prevent      the    unintentional            misuse    of    assault      weapons       and

large-capacity          magazines          by   otherwise        law-abiding        citizens.

Maryland relied on evidence that, by reducing the availability

of   such   weapons      and        magazines     overall,       the   FSA     will    curtail

their availability to criminals and lessen their use in mass

shootings, other crimes, and firearms accidents.

      The judgment made by the General Assembly of Maryland in

enacting     the     FSA       is     precisely       the   type       of    judgment        that

legislatures are allowed to make without second-guessing by a

court.      That is, “[i]t is the legislature’s job, not ours, to

weigh    conflicting       evidence         and      make   policy     judgments.”           See

Woollard,      712      F.3d     at     881     (quoting     Kachalsky         v.     Cty.     of

Westchester, 701 F.3d 81, 99 (2d Cir. 2012)).                                 And, “we must

‘accord     substantial         deference       to    the   predictive         judgments       of

[the legislature].’”                See Satellite Broad. & Commc’ns Ass’n v.

FCC, 275 F.3d 337, 356 (4th Cir. 2001) (quoting Turner Broad.

                                                57
Sys., Inc. v. FCC, 512 U.S. 622, 666 (1994) (“Turner I”)).                                Our

obligation       is     simply    “to     assure       that,       in   formulating       its

judgments,       [the       legislature]      has     drawn       reasonable    inferences

based on substantial evidence.”                    See Turner I, 512 U.S. at 666;

accord Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997)

(“Turner II”). 14

      Being      satisfied        that        there     is        substantial     evidence

indicating that the FSA’s prohibitions against assault weapons

and large-capacity magazines will advance Maryland’s goals, we

conclude that the FSA survives intermediate scrutiny.                               Simply

put, the State has shown all that is required:                          a reasonable, if

not   perfect,        fit    between    the    FSA    and     Maryland’s       interest    in

protecting public safety.                That is our alternative basis for

affirming       the    district    court’s         award     of    summary     judgment    in

favor      of   the    State     with    respect       to    the    plaintiffs’     Second

Amendment claims.

      14The plaintiffs contend that, under Turner I, Turner II,
and subsequent decisions of the courts of appeals, the evidence
on which the General Assembly of Maryland relied at the time of
the FSA’s enactment cannot be deemed “substantial” because the
legislative record was too sparse and the State only later
amassed evidence for this litigation.       We disagree on the
grounds that there was ample evidence in the legislative record,
and that, in any event, it was appropriate for the State to
supplement that evidence in these proceedings.       See, e.g.,
Satellite Broad. & Commc’ns Ass’n, 275 F.3d at 357 (“We may
. . . look to evidence outside the legislative record in order
to   confirm    the   reasonableness  of   [the   legislature’s]
predictions.”).



                                              58
                                        D.

      We   are    confident     that    our    approach    here     is    entirely

faithful to the Heller decision and appropriately protective of

the core Second Amendment right.               In contrast, our dissenting

colleagues would expand that constitutional protection to even

exceptionally lethal weapons of war and then decree that strict

scrutiny is applicable to any prohibition against the possession

of those or other protected weapons in the home.                  At bottom, the

dissent concludes that the so-called popularity of the banned

assault weapons — which were owned by less than 1% of Americans

as recently as 2013 — inhibits any efforts by the other 99% to

stop those weapons from being used again and again to perpetrate

mass slaughters.      We simply cannot agree.

                                        1.

      To start with, the dissent would extend Second Amendment

protection to each and every weapon deemed sufficiently popular

— no matter how violent or dangerous that weapon is.                      See post

at 89-107 (Traxler, J., dissenting).               Therefore, it is somehow

of   immense     significance   to     the    dissent   that,   “in      2012,   the

number of AR- and AK- style weapons manufactured and imported

into the United States was more than double the number of the

most commonly sold vehicle in the U.S., the Ford F-150.”                    Id. at

92 (internal quotation marks omitted).              And, it is entirely an

irrelevance if “some court concludes [an AR-15 or other banned

                                        59
weapon] has militarily useful features or is too dangerous for

civilians to possess.”          Id. at 102.

     Under      the    dissent’s       popularity     test,    whether     an     arm    is

constitutionally        protected       depends   not     on   the   extent       of    its

dangerousness, but on how widely it is circulated to law-abiding

citizens by the time a bar on its private possession has been

enacted and challenged.              Consider, for example, short-barreled

shotguns and machineguns.               But for the statutes that have long

circumscribed their possession, they too could be sufficiently

popular to find safe haven in the Second Amendment.                             Consider

further   a     state-of-the-art          and     extraordinarily          lethal       new

weapon.       That new weapon would need only be flooded on the

market prior to any governmental prohibition in order to ensure

it constitutional protection.

     As   the    dissent       points    out,   the   same     concerns     about       the

popularity      test    were    raised    by    Justice    Breyer     in    his     four-

justice Heller dissent.           See post at 91 (citing Heller, 554 U.S.

at   720-21     (Breyer,       J.,     dissenting)).           In    our    dissenting

colleagues’ view, “the Heller majority was obviously unmoved by

[Justice Breyer’s dissent],” thus indicating that Heller adopted

the popularity test.             Id.      Actually, however, Justice Breyer

simply expressed that it was not “at all clear to [him] how the

majority decides which loaded ‘arms’ a homeowner may keep,” and

then he explained why popularity is not a standard that makes

                                           60
sense.           See   Heller,       554   U.S.    at      720-21       (Breyer,       J.,

dissenting). 15

     Meanwhile, the Heller majority said nothing to confirm that

it   was    sponsoring        the    popularity    test.          Nevertheless,        our

dissenting colleagues also claim support for the popularity test

from the recent two-justice concurring opinion in Caetano, which

propounded that, under Heller, “the relative dangerousness of a

weapon is irrelevant when the weapon belongs to a class of arms

commonly used for lawful purposes.”                See Caetano, 136 S. Ct. at

1031 (Alito, J., concurring in the judgment).                       Of course, that

reading of Heller failed to garner a Court majority in Caetano.

     We     reject     the    interpretation      of     Heller    embraced       by   our

dissenting colleagues because it is incompatible with Heller’s

clear      and    dispositive       pronouncement:         There        is   no    Second

Amendment        protection    for    “M-16     rifles    and     the    like,”     i.e.,

“weapons that are most useful in military service.”                               See 554



     15 Justice Breyer’s dissent explained that, under the
popularity test, “the majority determines what regulations are
permissible by looking to see what existing regulations permit,”
although “[t]here is no basis for believing that the Framers
intended such circular reasoning.” See Heller, 554 U.S. at 721
(Breyer, J., dissenting).    The popularity test also has been
characterized as “circular” by the Seventh Circuit, which
concluded that “it would be absurd to say that the reason why a
particular weapon can be banned is that there is a statute
banning it, so that it isn’t commonly owned. A law’s existence
can’t be the source of its own constitutional validity.”     See
Friedman, 784 F.3d at 409.



                                           61
U.S. at 627.           It would be incongruous to say that Heller makes

an exception for such weapons if they are sufficiently popular.

That    is,    although         we    do    not     endeavor         today    to    resolve   the

difficult questions raised by Heller concerning the interplay of

“in common use at the time,” “typically possessed by law-abiding

citizens for lawful purposes,” and “dangerous and unusual,” see

id. at 625, 627, we are entirely convinced that the correct

answers to such inquiries cannot and do not culminate in the

dissent’s popularity test. 16

       In     seeking      to    impugn        our       ruling       on     Second    Amendment

protection,          the   dissent         accuses       the    en    banc     majority    of   a

laundry     list      of   misfeasance.                 That   list    includes       improperly

conjuring       up    “a   heretofore          unknown         ‘test’”       of    “whether   the

firearm       in   question          is    ‘most    useful      in     military       service’”;

flouting “basic fairness” by neither affording an opportunity to

the parties (particularly the plaintiffs) “to squarely meet the



       16
       We must also reject the dissent’s theory that, consistent
with the popularity test, the Heller Court could categorically
exclude “weapons that are most useful in military service” from
Second Amendment protection, because no such weapon is typically
possessed by law-abiding citizens today.     See post at 98-99.
The dissent specifically identifies “Gatling guns, mortars,
bazookas, etc.” and asserts that “no one could claim these items
were ever commonly possessed for Second Amendment purposes.”
Id. at 99. But the dissent’s list of militarily useful weapons
makes a critical omission: the very assault weapons and large-
capacity magazines that the dissent insists satisfy the
popularity test.



                                                   62
issue” nor remanding for the district court to address the issue

in the first instance; employing our own “military opinion” to

conclude that the assault weapons and large-capacity magazines

prohibited by Maryland’s FSA are not constitutionally protected;

and “abandon[ing] the summary judgment standard and reach[ing] a

conclusion based on facts viewed in the light most favorable to

the State.”      See post at 96-97 & nn.4-5.

     With all respect, those accusations are entirely unfounded.

Although   our    ruling   on   Second    Amendment   protection   may   seem

novel in some quarters, it is solidly predicated on the plain

language of Heller and was raised and argued by the State in

both the district court proceedings and this appeal.               See supra

note 10.   Specifically, the State has consistently asserted that

—   because      the   banned    assault    weapons    and   large-capacity

magazines are “like” “M-16 rifles” and “most useful in military

service” — they are “dangerous and unusual weapons” beyond the

reach of the Second Amendment.           See Heller, 554 U.S. at 627; see

also Br. of Appellees at 2-4, 16-23; Defs.’ Mem. in Supp. of

Summ. J. at 3-10, 32-37, Kolbe v. O’Malley, No. 1:13-cv-02841

(D. Md. Feb. 14, 2014), ECF No. 44.              That very argument was

acknowledged and discussed both in the district court’s Opinion

and in the dissent to our panel majority’s now-vacated Second

Amendment decision.        See Kolbe v. Hogan, 813 F.3d 160, 194, 196

(4th Cir. 2016) (King, J., dissenting in part and concurring in

                                     63
the    judgment       in     part)     (expressing      a       strong     inclination    to

“proclaim that the Second Amendment is not implicated by the

FSA,” in that there is no “reasonable basis for saying that,

although the M16 is a dangerous and unusual weapon, the AR-15

and similar arms are not”); id. at 195 n.2 (recognizing that

large-capacity        magazines        also   “could       be     deemed    dangerous    and

unusual,       in    view     of     evidence      that,     inter       alia,   they    are

particularly designed and most suitable for military and law

enforcement applications” (internal quotation marks omitted));

Kolbe, 42 F. Supp. 3d at 789 n.29 (observing that, “[g]iven that

assault rifles like the AR-15 are essentially the functional

equivalent      of     M-16s       —   and    arguably       more    effective       —   the

[reasoning of Heller that M-16s could be banned as dangerous and

unusual] would seem to apply here” (citing Heller, 554 U.S. at

627)).

       In our analysis, we simply de-emphasize the term “dangerous

and    unusual,”       more        directly     concluding         under    Heller      that,

because the banned assault weapons and large-capacity magazines

are “like” “M-16 rifles” and “most useful in military service,”

they     are        beyond     the      reach      of       the     Second       Amendment.

Consequently, the problem for the plaintiffs is not that they

have been deprived of an ample opportunity to squarely meet the

issue of whether the banned assault weapons and large-capacity

magazines are most useful in military service.                               Instead, the

                                              64
plaintiffs’ problem is that, despite full notice of the issue,

they have not and apparently cannot forecast evidence adequately

helpful to their cause.            Meanwhile, the State’s evidence readily

establishes that the banned assault weapons and large-capacity

magazines are most useful in military service, causing us to

neither    employ    our     own    “military      opinion”         nor   abandon        the

summary judgment standard to rule as we do.

     Our       distinguished         dissenting          colleagues          just         as

ineffectively       attack    the     merits      of    our     ruling       on    Second

Amendment protection, chiefly complaining that we do not adopt

the dissent’s illogical popularity test.                     Elsewhere, the dissent

strategically removes the word “most” from Heller’s enunciation

of the “most useful in military service” inquiry.                           The dissent

thereby    incorrectly       insists      that    we    are     foreclosing        Second

Amendment    protection      for    weapons      that    may    have      some    use     in

military service, including the stun guns at issue in Caetano

and even the handguns at issue in Heller.                      The dissent goes so

far as to claim that we “would remove nearly all firearms from

Second Amendment protection as nearly all firearms can be useful

in military service.”          See post at 100.              At another point, the

dissent acknowledges the critical distinction that the Heller

Court   drew    between      military     weapons       at    the    time    of    Second

Amendment’s      ratification        (arms       entitled       to     constitutional

protection     because     they    were    otherwise         possessed      at    home    by

                                          65
citizen       militia    members       for      self-defense)               and    the        military

weapons    of    today    (sophisticated              arms      like    the       M16     that      were

developed       for     modern    warfare            and     thus      lack       constitutional

protection).          But the dissent inconsistently reckons that we

have placed a settler’s musket outside the ambit of the Second

Amendment.

       Taking     a    last     shot       at   our    ruling          on       Second    Amendment

protection,       the    dissent       endeavors           to    make       the    case       for    the

plaintiffs       that     the    FSA-banned           assault          weapons          and     large-

capacity magazines are not, in fact, most useful in military

service.        In so doing, the dissent simply resorts to further

obfuscation.          For example, the dissent underscores that the AR-

15 and other prohibited semiautomatic rifles are not themselves

“in    regular    use    by     any    military        force,       including            the    United

States    Army,       whose   standard-issue               weapon      has       been    the     fully

automatic M16- and M4-series rifles.”                           See post at 102; see also

id. at 106 (“If these firearms were such devastating weapons of

war,    one    would    think     that      they      would       be    standard         issue      for

military forces across the globe.”).                            The dissent characterizes

the    relevant        inquiry        as    being          whether          a    weapon’s        “only

legitimate purpose is to lay waste to a battlefield full of

combatants,” id. at 102-03 (emphasis added), and then invokes

evidence that there are citizens who possess and use the banned

assault weapons for sporting purposes and self-defense, id. at

                                                66
106-07.        The    dissent      also      treats      rate       of   fire   as    the    sole

determinative factor and proffers its own evidence that an M16

in semiautomatic mode cannot fire as rapidly — at least not

“effectively” — as the State’s evidence reflects.                                  Id. at 103-

04; see also id. at 105 n.6 (noting that fully automatic and

semiautomatic firearms do not “spray-fire” in precisely the same

manner).          Additionally,        the    dissent      parses          other     individual

features of the banned assault weapons, pointing out that some

features are shared by non-banned firearms, do not on their own

make weapons “more lethal or battle-ready,” and can actually

render firearms “easier and safer to operate.”                               Id. at 104-06.

The dissent even emphasizes evidence opining that “[t]he semi-

automatic      AR15      carbine       is   likely       the    most       ergonomic,       safe,

readily     available       and     effective         firearm        for    civilian        self-

defense.”          Id.    at     107    (alteration            in    original)       (internal

quotation marks omitted).

       As   the    dissent     would        have   it,    we    groundlessly          deem    the

banned assault weapons to be military-style weapons of war when

they     are    actually       nothing       of    the     sort,         thereby     welcoming

prohibitions against a multitude of other firearms.                                      On that

score, however, the dissent is patently alarmist and wrong.

       Our ruling on Second Amendment protection is limited and

clear:         Because     the     FSA-banned         assault        weapons       and    large-

capacity magazines are like M16s, in that they are most useful

                                              67
in    military       service,      they    are     not   protected        by     the    Second

Amendment.           The    relevant      question       is   not    whether         they    are

themselves M16s or other arms used by a military; or whether

they are useful at all or only useful in military service; or

whether they have this or that single feature in common with a

non-banned firearm.               Rather, the issue is whether the banned

assault weapons and large-capacity magazines possess an amalgam

of features that render those weapons and magazines like M16s

and    most     useful      in    military         service.         The    uncontroverted

evidence here is that they do.                      See, e.g., J.A. 735, 1121-22

(reflecting         that    the   banned     assault      weapons     are       designed         to

“kill[] or disabl[e] the enemy” on the battlefield, and that

“[t]he    net    effect      of     [their]      military     combat       features         is    a

capability for lethality — more wounds, more serious, in more

victims     —    far       beyond    that     of     other     firearms         in   general,

including       other       semiautomatic           guns”);     id.       at     891,       1151

(indicating         that    large-capacity          magazines       “are        particularly

designed      and    most    suitable       for     military    and       law    enforcement

applications,” as well as a “uniquely military feature[]” of

both the banned assault weapons and other firearms to which they

may be attached).                Nothing in our decision today affects or

calls into question the Second Amendment protection of weapons

that are not most useful in military service — including, of

course, Heller’s handguns.

                                              68
                                           2.

     Finally,     unlike      us,    our    esteemed        dissenting     colleagues

would subject the FSA’s prohibitions against assault weapons and

large-capacity magazines to the ultra-demanding strict scrutiny

standard.     See post at 107-15.           Indeed, the dissent would apply

strict scrutiny to any ban on in-home possession of any weapon

that satisfies the dissent’s popularity test.                         Meanwhile, we

conclude that no more than intermediate scrutiny applies here,

in   part    because    the    FSA    leaves        citizens     free    to   protect

themselves     with    handguns      and    plenty     of    other      firearms   and

ammunition, and thus does not severely burden the core Second

Amendment right to use arms for self-defense in the home.                            We

also take notice of the scant evidence in the record that the

banned      assault    weapons       and        large-capacity       magazines     are

possessed or suitable for self-protection.

     The dissent has no good answer to our analysis.                      First, the

dissent mischaracterizes our Court’s recent decision in United

States v. Hosford, 843 F.3d 161 (4th Cir. 2016), as holding

“that strict scrutiny applies when a law restricting possession

of a firearm applies to conduct inside of the home and touches

on self-defense concerns.”           See post at 110.           The Hosford panel

consisted of three judges in today’s en banc majority.                             What

Hosford actually decided is that strict scrutiny does not apply

where — as there — a “prohibition does not touch on the Second

                                           69
Amendment’s core protections,” e.g., where the law “addresses

only conduct occurring outside the home[] and does not touch on

self-defense          concerns.”         See     843     F.3d    at    168.         We    did    not

determine        in    Hosford     whether       strict     scrutiny         always       or    ever

applies     to    laws      infringing      on    the     Second      Amendment          right    of

self-defense in the home, and we had no reason to do so.                                         In

these circumstances, the Hosford decision is not pertinent, and

the dissent is simply wrong in arguing otherwise.

      The   dissent         also    asserts       that    our     “line      of    thought       was

expressly        rejected     by    the    Supreme        Court       in    Heller”       when    it

“dismissed the District of Columbia’s reverse contention that

its   handgun         ban   [was    constitutional]             because      long      guns     were

still permitted for home defense.”                        See post at 111 (emphasis

omitted)     (citing        Heller,       554     U.S.    at     629).           The     dissent’s

equation of this case and Heller is wholly untenable, however,

because it depends on discounting the relevance of the handgun’s

status as “the quintessential self-defense weapon” — a status

that was obviously and unquestionably important to the Heller

Court.      See       Heller,      554    U.S.    at     628-29.           Nevertheless,         the

dissent next insists that, in rejecting its reading of Heller,

we allow that “any state ‘would be free to ban all weapons

except handguns, because handguns are the most popular weapon

chosen by Americans for self-defense in the home.’”                                 See post at

112 (emphasis          omitted)      (quoting         Caetano,     136      S.    Ct.     at    1032

                                                 70
(Alito, J., concurring in the judgment)).                         In reality, without

passing on the comparative burdensomeness of bans on any other

types of arms, we merely say that a prohibition against assault

weapons and large-capacity magazines is far less burdensome on

the    core    Second       Amendment     right       than    a     ban    on   handguns.

According      to     the     dissent,    we        thereby       improperly     discount

evidence of the utility of assault weapons and large-capacity

magazines for self-defense, but that assertion relies on the

same and similar points that fail to make the case for the

plaintiffs that such weapons and magazines are not, in fact,

most useful in military service.                   See id. at 112-14 & n.9.

       Ultimately,      the     dissent       would     leave       it    to    individual

citizens — and disempower legislators — to determine whether a

weapon may be possessed for self-defense.                     See post at 114 (“As

long   as     the   weapon     chosen    is    one    commonly      possessed      by   the

American people for lawful purposes[,] . . . the state has very

little say about whether its citizens should keep it in their

homes for protection.”).           That is, under the dissent, any ban on

the in-home possession of a sufficiently popular weapon would

have to withstand strict scrutiny to be allowed to stand.                               The

Heller Court did not, however, ordain such a trampling of the

legislative prerogative to enact firearms regulations to protect

all the people.             Rather, as it is here, intermediate scrutiny

can     be      the     appropriate           standard        for        assessing      the

                                              71
constitutionality of a prohibition against the possession of a

weapon in the home.        And the FSA survives intermediate scrutiny,

assuming the assault weapons and large-capacity magazines that

it prohibits are even entitled to Second Amendment protection.



                                         IV.

     We    next     address      the    plaintiffs’     Fourteenth          Amendment

claims,    which   are    pursued      under   the   Equal    Protection      Clause

(barring    a   state     from    “deny[ing]    to   any     person    within      its

jurisdiction the equal protection of the laws”), as well as the

Due Process Clause (prohibiting a state from “depriv[ing] any

person of life, liberty, or property, without due process of

law”).     See U.S. Const. amend. XIV, § 1.                We are satisfied to

affirm the district court’s award of summary judgment to the

State with respect to those claims.

                                         A.

     The first of the plaintiffs’ Fourteenth Amendment claims is

that the FSA contravenes the Equal Protection Clause by allowing

retired Maryland law enforcement officers to receive and possess

assault    weapons   and    large-capacity       magazines.       As    previously

explained, the relevant provision of the FSA allows the receipt

and possession of an assault weapon or large-capacity magazine

by a retired Maryland law enforcement officer if such weapon or

magazine    “is    sold   or     transferred    to   the     person    by    the   law

                                         72
enforcement agency on retirement” or “was purchased or obtained

by the person for official use with the law enforcement agency

before retirement.”          See Md. Code Ann., Crim. Law § 4-302(7).

     The Supreme Court has recognized that equal protection “is

essentially     a     direction    that      all   persons   similarly      situated

should be treated alike.”               See City of Cleburne v. Cleburne

Living Ctr., Inc., 473 U.S. 432, 439 (1985).                     Thus, a plaintiff

challenging a state statute on an equal protection basis “must

first     demonstrate    that     he   has     been   treated     differently     from

others with whom he is similarly situated and that the unequal

treatment      was     the     result     of       intentional      or     purposeful

discrimination.”        See Morrison v. Garraghty, 239 F.3d 648, 654

(4th Cir. 2001) (citing City of Cleburne, 473 U.S. at 439-40).

If that initial showing has been made, “the court proceeds to

determine whether the disparity in treatment can be justified

under the requisite level of scrutiny.”                  Id.      At that step, a

court     generally    presumes    that      the   statute   is    valid    and   will

reject the challenge “if the classification drawn by the statute

is rationally related to a legitimate state interest.”                      See City

of Cleburne, 473 U.S. at 440. 17


     17 In certain circumstances, the general presumption of
statutory validity “gives way” and stricter judicial scrutiny of
a challenged law is warranted.   See City of Cleburne, 473 U.S.
at 440-41 (observing that higher levels of scrutiny apply to
suspect classifications).     There is no contention that a
(Continued)
                                          73
      Applying the foregoing principles, we first assess whether

the   FSA   treats      similarly     situated       persons     differently.        See

Morrison,    239     F.3d   at   654.         More    specifically,       we   examine

whether retired Maryland law enforcement officers are similarly

situated to other members of the public with respect to the

banned assault weapons and large-capacity magazines.

      Maryland requires its law enforcement officers to maintain

competence relating to firearms.               For example, such officers are

not entitled to use or carry firearms in their work until they

have “successfully complete[d] the applicable firearms classroom

instruction, training, and qualification.”                  See Code of Maryland

Regulations        (“COMAR”)        12.04.02.03(A);            see      also        COMAR

12.04.02.06(B) (establishing minimum requirements for long gun

instruction, training, and qualification).                     Thereafter, officers

are   obliged      to    complete      annual        classroom       instruction     and

training for each firearm they are authorized to use or carry.

See COMAR 12.04.02.08(A).             The failure of an officer to complete

his annual training will cause the seizure of his firearms by

the Maryland Police Training Commission, or, if those firearms

are   personally        owned    by     the     officer,       the     loss    of     his

authorization to use them on the job.                  See COMAR 12.04.02.08(E).



heightened level of scrutiny applies to the equal protection
challenge in this case.



                                          74
Finally, officers are trained on the use of deadly force, plus

the safe handling and storage of firearms at work and at home.

See COMAR 12.04.02.10(C)–(D).

     The record shows that Maryland law enforcement officers are

also required to complete specialized training in order to use

or carry assault weapons.       Officers are trained on how and when

to utilize assault weapons, and they are taught the techniques

that minimize the risks of harm to innocent civilians.              After

receiving   assault   weapons   training,   officers    are   required   to

periodically requalify to use or carry such weapons in the line

of duty.

     As for large-capacity magazines, Maryland law enforcement

officers are taught to assess every shot from a firearm for

effectiveness and to fully evaluate a hostile situation before

firing multiple rounds.     The record shows that, at least within

four major police agencies — the Maryland State Police, the

Baltimore   County    Police    Department,    the     Baltimore   Police

Department, and the Prince George’s County Police Department —

the standard service weapons issued to law enforcement personnel

come with large-capacity magazines.         Consequently, officers who

retire from those departments have been properly trained on the

handling and use of such magazines.

     Because of the extensive training that Maryland requires of

its law enforcement officers, and in light of their experience

                                   75
in public safety, retired Maryland law enforcement officers are

not similarly situated to the general public with respect to the

assault weapons and large-capacity magazines banned by the FSA.

That is, retired officers are better equipped to safely handle

and store those weapons and magazines and to prevent them from

falling   into       the     wrong   hands.      Accordingly,   we   reject    the

plaintiffs’ equal protection challenge for lack of an initial

showing       that     the     FSA   treats   similarly     situated    persons

differently.         See Kolbe v. O’Malley, 42 F. Supp. 3d 768, 799 (D.

Md. 2014) (“The court cannot conclude that the State of Maryland

is treating differently persons who are in all relevant respects

alike,    and    the       plaintiffs’   equal    protection    challenge     must

fail.”). 18




     18  In pursuing their equal protection challenge, the
plaintiffs rely primarily on Silveira v. Lockyer, wherein the
Ninth Circuit concluded that a retired officer exception to an
assault weapons ban contravened the Equal Protection Clause.
See 312 F.3d 1052, 1089-92 (9th Cir. 2002).    We agree with the
district court, however, that the Silveira decision “is flawed,”
as it did not analyze whether there was differential treatment
of similarly situated persons. See Kolbe, 42 F. Supp. 3d at 798
n.39.  Otherwise, the plaintiffs insist that Maryland’s retired
law enforcement officers are similarly situated to the general
public, in that some individual officers might not have been
properly trained on assault weapons or large-capacity magazines.
That contention lacks merit because we must look at retired
officers as a broader class.



                                         76
                                       B.

      The plaintiffs’ second Fourteenth Amendment claim is that

the FSA’s ban on “copies” of the assault weapons identified in

section 5-101(r)(2) of the Maryland Code’s Public Safety Article

is unconstitutionally vague on its face, in contravention of the

Due   Process    Clause.      In    particular,    they   maintain      that   the

statute fails to inform a reasonable person of what constitutes

a “cop[y]” of a particular assault weapon.                See Md. Code Ann.,

Pub. Safety § 5–101(r)(2) (defining a “[r]egulated firearm” as

“a firearm that is any of the following specific assault weapons

or    their   copies,    regardless     of    which   company    produced      and

manufactured that assault weapon”).

      As   the   Supreme    Court    recently     explained,    the     void-for-

vagueness     doctrine     precludes    the    enforcement     of   a   criminal

statute “so vague that it fails to give ordinary people fair

notice of the conduct it punishes, or so standardless that it

invites arbitrary enforcement.”              See Johnson v. United States,

135 S. Ct. 2551, 2556 (2015). 19              A criminal statute need not,


      19 The Supreme Court’s Johnson decision — which was
rendered in June 2015, nearly a year after the district court’s
Opinion here — precludes the State’s contention that we should
uphold the FSA’s ban on “copies” under United States v. Salerno,
481 U.S. 739, 745 (1987) (observing that “[a] facial challenge
to a legislative Act” requires “the challenger [to] establish
that no set of circumstances exists under which the Act would be
valid”).    In Johnson, the Court rejected the notion that “a
vague provision is constitutional merely because there is some
(Continued)
                                       77
however,     “spell    out     every     possible      factual       scenario       with

celestial precision.”         See United States v. Hager, 721 F.3d 167,

183 (4th Cir. 2013) (internal quotation marks omitted).

      The term “copies,” as used in section 5–101(r)(2), is not

new   to   Maryland’s    firearms      statutes.         Indeed,       Maryland       has

regulated    the    “possession,       sale,    offer     for       sale,    transfer,

purchase, receipt, or transport” of certain assault weapons and

“their copies” for more than two decades.                     See 1994 Md. Laws,

ch. 456.     In May 2010, Maryland’s Attorney General rendered an

opinion    explaining    the    term     “copies”   as       used    in     section    5-

101(r)(2).    He therein observed that the ordinary meaning of the

word copy is “a reproduction or imitation of an original.”                            See

J.A. 681.     The Attorney General explained that, under Maryland

law, “a copy of a designated assault weapon must be similar in

its internal components and function to the designated weapon.”

Id.   at   678.     Thus,     “[c]osmetic      similarity       to    an    enumerated

assault    weapon     alone    would    not    bring     a    weapon       within     the

regulated firearms law.”           Id.        Six months later, in November

2010, the Maryland State Police issued a bulletin explaining

that it considers a firearm that is cosmetically similar to an

assault weapon identified in section 5–101(r)(2) to be a copy



conduct that clearly falls within the provision’s grasp.”                             See
135 S. Ct. at 2561.



                                         78
only    if   it      possesses     “completely      interchangeable      internal

components necessary for the full operation and function of any

one of the specifically enumerated assault weapons.”                       Id. at

676.     The Attorney General’s opinion, coupled with the State

Police bulletin, provide guidance on the term “copies,” and that

guidance remained in force after the FSA was enacted in 2013.

       The   Court    of   Appeals       of    Maryland    has   recognized    that

“legislative acquiescence in the administrative construction [of

a   statute]      gives    rise    to     a    strong     presumption   that   the

administrative interpretation is correct.”                   See Wash. Suburban

Sanitary Comm’n v. C.I. Mitchell & Best Co., 495 A.2d 30, 37

(Md. 1985).       Because the Attorney General’s 2010 opinion and the

subsequent bulletin of the State Police explain how to determine

whether a particular firearm is a copy of an identified assault

weapon, we cannot conclude that the term “copies” in section 5–

101(r)(2) is unconstitutionally vague.                    See Vill. of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 504

(1982) (explaining that a municipality may “adopt administrative

regulations that will sufficiently narrow potentially vague or

arbitrary interpretations of [an] ordinance”).

       In further support of their vagueness claim, the plaintiffs

argue that the typical gun owner would not know whether the

internal components of one firearm are interchangeable with the

internal     components    of     some   other    firearm.       That   contention

                                          79
misapprehends       the    vagueness    inquiry,          which    focuses    on   the

intractability of identifying the applicable legal standard, not

on the difficulty of ascertaining the relevant facts in close

cases.       See United States v. Williams, 553 U.S. 285, 306 (2008)

(“What renders a statute vague is not the possibility that it

will        sometimes     be   difficult       to        determine      whether    the

incriminating fact it establishes has been proved; but rather

the indeterminacy of precisely what that fact is.”); see also

Johnson, 135 S. Ct. at 2560 (emphasizing, in ruling that the

residual       clause     of   the     Armed        Career       Criminal    Act   was

unconstitutionally vague, the “pervasive disagreement about the

nature of the inquiry one is supposed to conduct and the kinds

of factors one is supposed to consider”).                        The legal standard

for    determining      what   qualifies       as    a    copy    of   an   identified

assault weapon is sufficiently clear, and we thus reject the

plaintiffs’ contention that the FSA’s ban on copies of assault

weapons is unconstitutionally vague.                 See Kolbe, 42 F. Supp. 3d

at 802 (“[T]he court cannot conclude that the [FSA] fails to

provide sufficient notice of banned conduct.”). 20


       20
       In the summary judgment proceedings below, the plaintiffs
also unsuccessfully sought to show that the FSA invites
arbitrary enforcement.    As the district court recognized in
disposing of that contention, “[w]hen the terms of a regulation
are clear and not subject to attack for vagueness, the plaintiff
bears a high burden to show that the standards used by officials
enforcing the statute nevertheless give rise to a vagueness
(Continued)
                                         80
                               V.

     Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                        AFFIRMED




challenge.” See Kolbe, 42 F. Supp. 3d at 802 (quoting Wag More
Dogs, L.L.C. v. Cozart, 680 F.3d 359, 372 (4th Cir. 2012)). The
court concluded that the plaintiffs failed to sustain that
substantial burden, in that they have not identified any arrests
or convictions resulting from a misunderstanding of the term
“copies,” as used in section 5–101(r)(2), nor have they
identified any acquittals based on the alleged vagueness of that
term. The plaintiffs did not endeavor on appeal to demonstrate
that there has been arbitrary enforcement of the “copies”
provision.



                               81
WILKINSON, Circuit Judge, with whom WYNN, Circuit Judge, joins,
concurring:

       I am happy to concur in Judge King’s fine opinion in this

case.

       No one really knows what the right answer is with respect

to    the    regulation      of    firearms.          It    may     be    that       relatively

unrestricted access to guns will diminish the incidence of crime

by providing a deterrent force against it. On the other hand, it

may    be    that   such     access      leads       only    to     a     proliferation         of

incidents      in    which       the    most    deadly       firearms          are    unleashed

against the public.

       The   question       before      us,    however,      is     not    what       the   right

answer is, but how we may best find it. The dissent aspires to

subject a host of firearm regulations to “strict scrutiny,” a

term of art deployed here to empower the judiciary and leave

Congress, the Executive, state legislatures, and everyone else

on    the    sidelines.      I    am     unable       to    draw     from      the     profound

ambiguities of the Second Amendment an invitation to courts to

preempt this most volatile of political subjects and arrogate to

themselves     decisions         that    have       been    historically         assigned       to

other, more democratic, actors. The fact that Heller exempted

from    legislative        infringement         handguns       broadly         utilized        for

self-defense        in     the    home    does       not     mean       that    it     disabled

legislatures        from    addressing         the    wholly       separate          subject    of


                                               82
assault weapons suitable for use by military forces around the

globe. See District of Columbia v. Heller, 544 U.S. 570, 626-28

(2008).

        Disenfranchising the American people on this life and death

subject would be the gravest and most serious of steps. It is

their community, not ours. It is their safety, not ours. It is

their     lives,     not   ours.   To   say     in    the    wake    of    so    many   mass

shootings in so many localities across this country that the

people themselves are now to be rendered newly powerless, that

all they can do is stand by and watch as federal courts design

their destiny – this would deliver a body blow to democracy as

we have known it since the very founding of this nation.

       In urging us to strike this legislation, appellants would

impair the ability of government to act prophylactically. More

and more under appellants’ view, preventive statutory action is

to   be    judicially      forbidden     and    we    must    bide    our       time    until

another tragedy is inflicted or irretrievable human damage has

once more been done. Leaving the question of assault weapons

bans      to   legislative     competence       preserves       the       latitude      that

representative        governments       enjoy    in    responding         to    changes    in

facts     on   the   ground.   Constitutionalizing             this       critical      issue

will place it in a freeze frame which only the Supreme Court

itself could alter. The choice is ultimately one of flexibility

versus rigidity, and beyond that, of whether conduct that has

                                           83
visited such communal bereavement across America will be left to

the communal processes of democracy for resolution.

       Providing for the safety of citizens within their borders

has long been state government’s most basic task. See, e.g.,

Boston    Beer      Co.    v.   Massachusetts,          97 U.S. 25,          32       (1877).    In

establishing the “right of law-abiding, responsible citizens to

use arms in defense of hearth and home,” Heller did not abrogate

that    core     responsibility.            554     U.S.    at    635.      Indeed,          Heller

stopped far short of the kind of absolute protection of assault

weapons      that     appellants        urge      on   us    today.        The    dissent,       by

contrast, envisions the Second Amendment almost as an embodiment

of unconditional liberty, thereby vaulting it to an unqualified

status    that      the    even    more     emphatic        expressions          in    the   First

Amendment      have       not   traditionally          enjoyed.       As    Judge       King    has

aptly    noted,      Heller       was   a   cautiously        written        opinion,        which

reserved specific subjects upon which legislatures could still

act. See id. at 626 (recognizing that the Second Amendment right

is “not a right to keep and carry any weapon whatsoever in any

manner whatsoever and for whatever purpose”). Had Heller in fact

failed to reserve those subjects, or had it been written more

ambitiously, it is not clear that it could have garnered the

critical five votes.

       The   weapons        that    Maryland        sought       to   regulate         here     are

emphatically not defensive in nature. Of course, no weapon is

                                               84
what    we    learned       long      ago    in     real     property      class    to    call     a

fixture.       Weapons         may    remain      at    home    for    a   while    but        their

station is not permanent. They can always be taken out on the

town. For what purpose? The Maryland legislature could readily

conclude that assault weapons, unlike handguns, are efficient

instruments of mass carnage, and in fact would serve as weapons

of choice for those who in a commando spirit wish to charge into

a public venue and open fire. Likewise, the legislature could

validly       determine          that       large      detachable       magazines        with     a

capacity          of    more     than       ten     rounds      of    ammunition         in     fact

facilitate assaults by those who seek to eliminate the need to

reload.

       If this statute is struck down, it is difficult to see what

class    of       non-automatic         firearms        could    ever      be   regulated.        If

these     weapons          are       outside      the        legislative        compass,       then

virtually all weapons will be. It is altogether fair, of course,

to argue that the assault weapons here should be less regulated,

but that is for the people of Maryland (and the Virginias and

the Carolinas) to decide.

       Appellants          claim,       however,        that     these      assault       weapons

cannot       be    banned      because       they      are    “in    common     use”     and    are

“typically             possessed       by     law-abiding            citizens      for        lawful

purposes.” Appellants’ Supp. Br. 20-23. This language was of

course employed in Heller, 554 U.S. at 624-28, but it did not

                                                  85
purport      to   make     any    inquiry      into    common     usage     and   typical

possession the exclusive province of the courts. The dissent’s

forays into the properties and usages of this or that firearm

are    the    kind    of    empirical      inquiries        routinely     reserved     for

legislative bodies which possess fact-finding capabilities far

superior to the scantily supported views now regularly proffered

from   the    bench.       In    fact,   legislators        are   uniquely    suited   to

discern popular habits and to understand regular usage within

the populace. The term “common use” was never meant to deal to

courts    the     sole     and   supreme    hand      in    a   political    controversy

where the combatants on both sides are robust, where they are

energized, and where they are well stocked with arguments they

can press before the public.

       As Heller recognized, there is a balance to be struck here.

While courts exist to protect individual rights, we are not the

instruments of anyone’s political agenda, we are not empowered

to court mass consequences we cannot predict, and we are not

impaneled to add indefinitely to the growing list of subjects on

which the states of our Union and the citizens of our country no

longer have any meaningful say.

       With     all   respect      for    my   good        colleagues   who    see   this

important matter differently, I would uphold the Maryland law in

its entirety.



                                            86
DIAZ, Circuit Judge, concurring in part:

     I am pleased to join the majority in affirming the district

court’s   judgment.   But   like   the   district   court,   I   think   it

unnecessary to decide whether the assault weapons and large-

capacity magazines at issue here are protected by the Second

Amendment.   Rather, I am content to decide this case solely on

the majority’s alternative (and compelling) rationale--that even

if   Maryland’s   statute   implicates    the   Second   Amendment,      it

nonetheless passes constitutional muster.




                                   87
TRAXLER, Circuit Judge, with whom NIEMEYER, SHEDD, and AGEE,
Circuit Judges, join, dissenting:

      Today      the     majority       holds    that        the     Government      can       take

semiautomatic         rifles     away    from        law-abiding        American     citizens.

In South Carolina, North Carolina, Virginia, West Virginia and

Maryland, the Government can now tell you that you cannot hunt

with these rifles.              The Government can tell you that you cannot

shoot     at    targets     with        them.          And,      most      importantly,         the

Government       can     tell    you    that    you        cannot    use    them     to    defend

yourself and your family in your home.                           In concluding that the

Second Amendment does not even apply, the majority has gone to

greater        lengths     than        any   other         court      to    eviscerate          the

constitutionally guaranteed right to keep and bear arms.

      In addition, the majority holds that even if it is wrong

when it says that the Second Amendment does not cover these

commonplace       rifles,       Maryland       can     still       lawfully     forbid         their

purchase, even for self defense in one’s home-the core Second

Amendment right.           My friends do not believe this ruling impairs

the     rights        citizens     have      under         the      Constitution          to    any

significant       degree.         In    my   view,         the   burden     imposed       by    the

Maryland law is considerable and requires the application of

strict scrutiny, as is customary when core values guaranteed by

the Constitution are substantially affected.                               I recognize that

after    such     a    judicial     review,          the    result      could   be    that      the


                                                88
Maryland law is constitutional.                   I make no predictions on that

issue.      I simply say that we are obligated by                       Supreme Court

precedent    and    our    own    to    treat       incursions    into    our   Second

Amendment rights the same as we would restrictions on any other

right guaranteed us by our Constitution.

      Therefore I respectfully dissent.

            I.   The Second Amendment Protects Semiautomatic
                   Rifles and Large Capacity Magazines

            A.   Semiautomatic rifles are commonly possessed
                         by law-abiding citizens.

      The majority says first that the Second Amendment does not

even apply to modern semiautomatic rifles or magazines holding

more than ten rounds.            In doing so, the majority stands alone

from all the other courts to have considered this issue.                            But

the scope of the Second Amendment is broad with regard to the

kinds of arms that fall within its protection, “extend[ing],

prima facie, to all instruments that constitute bearable arms.”

District of Columbia v. Heller, 554 U.S. 570, 582 (2008).                            Of

course, like other constitutionally protected rights, “the right

secured by the Second Amendment is not unlimited.”                        Id. at 626.

Of   particular     importance        here    are    the   historical     limitations

that apply to the types of arms a law-abiding citizen may bear.

In   that   regard,      the   Second    Amendment         protects     those   weapons

“typically       possessed       by    law-abiding          citizens      for   lawful

purposes.”         Id.    at   625.          By    contrast,     “the    carrying   of

                                             89
‘dangerous and unusual weapons’” has been prohibited as a matter

of    “historical    tradition.”              Id.          at    627;    see     Caetano      v.

Massachusetts, 136 S. Ct. 1027, 1028 (2016) (per curiam).                                  If a

weapon is one “typically possessed by law-abiding citizens for

lawful purposes,” Heller, 554 U.S. at 625, then it cannot also

be a “dangerous and unusual” weapon in a constitutional sense,

id. at 627 (weapons “in common use at the time” did not include

“dangerous    and    unusual        weapons”           (internal         quotation        marks

omitted)).       Indeed, Heller refers to “dangerous and unusual”

conjunctively,      so     that     even          a    “dangerous”            weapon    enjoys

constitutional      protection        if     it       is    widely       held    for    lawful

purposes.    See Caetano, 136 S. Ct. at 1031 (explaining that the

dangerous and unusual test “is a conjunctive test:                              A weapon may

not be banned unless it is both dangerous and unusual”) (Alito,

J., concurring).          The significance of this rule is that “the

relative dangerousness of a weapon is irrelevant when the weapon

belongs to a class of arms commonly used for lawful purposes.”

Id.     Simply     put,    if     the      firearm         in    question       is     commonly

possessed for lawful purposes, it falls within the protection of

the Second Amendment.        See Heller, 554 U.S. at 627.

      My colleagues in the majority reject the foregoing “common

use” analysis, characterizing it as a “popularity test” founded

on    “circular”    reasoning         such        that      “a       state-of-the-art         and

extraordinarily     lethal      new     weapon        .     .    .    would    need    only   be

                                             90
flooded on the market prior to any governmental prohibition in

order   to     ensure     it   constitutional        protection.”           But   the

majority’s beef is not with me—it is with the Supreme Court of

the   United    States.        Justice   Breyer      raised     a   quite    similar

objection to this “popularity test” in his Heller dissent:

           [I]f Congress and the States lift restrictions on
      the possession and use of machineguns, and people buy
      machineguns . . . the Court will have to reverse course
      and find that the Second Amendment does, in fact,
      protect the individual self-defense-related right to
      possess a machinegun.   On the majority's reasoning, if
      tomorrow someone invents a particularly useful, highly
      dangerous self-defense weapon, Congress and the States
      had better ban it immediately, for once it becomes
      popular   Congress   will   no   longer   possess   the
      constitutional authority to do so. . . .    There is no
      basis for believing that the Framers intended such
      circular reasoning.

554   U.S.   at   720–21.       Justice       Breyer    effectively     raised     my

colleagues’     precise    criticism     in    his     Heller   dissent     and   the

Heller majority was obviously unmoved by it.

      And, indeed, following Heller, almost every federal court

to have considered “whether a weapon is popular enough to be

considered in common use has relied on statistical data of some

form, creating a consensus that common use is an objective and

largely statistical inquiry.”             Hollis v. Lynch, 827 F.3d 436,

449 (5th Cir. 2016) (internal quotation marks omitted).                       It is

beyond any reasonable dispute from the record before us that a

statistically     significant     number      of   American     citizens     possess

semiautomatic rifles (and magazines holding more than 10 rounds)

                                         91
for lawful purposes.           Between 1990 and 2012, more than 8 million

AR-    and   AK-        platform      semiautomatic         rifles       alone   were

manufactured in or imported into the United States.                         In 2012,

semiautomatic sporting rifles accounted for twenty percent of

all retail firearms sales.            In fact, in 2012, the number of AR-

and AK- style weapons manufactured and imported into the United

States was “more than double the number of the most commonly

sold vehicle in the U.S., the Ford F-150.”                   J.A. 1878.     In terms

of absolute numbers, these statistics lead to the unavoidable

conclusion that popular semiautomatic rifles such as the AR-15

are commonly possessed by American citizens for lawful purposes

within the meaning of Heller.

      The    number       of      jurisdictions           where     possession    of

semiautomatic       rifles       is    lawful       is     also     an   appropriate

consideration      in   determining        common    use    for    lawful   purposes.

See   Caetano,   136     S.    Ct.    at   1032-33       (Alito,   J.,   concurring)

(explaining that the 200,000 tasers and stun guns in the United

States are commonly possessed for lawful purposes and “widely

owned and accepted as a legitimate means of self-defense across

the country” where 45 states permit their lawful possession).

The semiautomatic rifle has been in existence since at least the

turn of the Twentieth Century.              Today, more than 100 years after

these firearms came into use, individual citizens may possess

semiautomatic rifles like the AR-15 semiautomatic in at least 44

                                           92
states, which establishes that these weapons are widely accepted

across     the    country    as   firearms        that    may     be    legitimately

possessed for lawful purposes.             See Robert J. Cottrol and George

A. Mocsary, Guns, Bird Feathers, and Overcriminalization: Why

Courts Should Take the Second Amendment Seriously, 14 Geo. J. L.

& Pub. Pol’y 17, 36 (2016) (noting that “[s]even states, the

District of Columbia, and a few localities regulate or ban so-

called   assault     weapons”);      see    id.   at     36    n.106    (“The   states

[banning     or    regulating     “assault        weapons”]       are    California,

Connecticut,      Hawaii,    Maryland,      Massachusetts,        New    Jersey,   and

New York.”). 1

     In view of the significant popularity of these firearms,

courts     have     had     little     difficulty         in     concluding        that

semiautomatic rifles such as the AR-15 are in common use by law-

abiding citizens.           See, e.g., Heller v. District of Columbia

(“Heller II”), 670 F.3d 1244, 1261 (D.C. Cir. 2011) (“We think

it clear enough in the record that semi-automatic rifles and

magazines holding more than ten rounds are indeed in ‘common

use,’ as the plaintiffs contend.                Approximately 1.6 million AR-

15s alone have been manufactured since 1986, and in 2007 this

one popular model accounted for 5.5 percent of all firearms, and

     1 Although Hawaii is listed, it bans assault pistols only;
semiautomatic rifles such as the AR-15 are still permitted in
Hawaii. See Haw. Rev. Stat. §§ 134-1, 134-4, 134-8.


                                           93
14.4    percent       of    all   rifles,        produced      in    the    U.S.       for    the

domestic market.”); New York State Rifle & Pistol Ass’n, Inc. v.

Cuomo, 804 F.3d 242, 255 (2d Cir. 2015) (“This much is clear:

Americans      own    millions      of     the      firearms      that     the   challenged

legislation       prohibits.        .    .     .       Even       accepting        the       most

conservative estimates cited by the parties and by amici, the

assault weapons and large-capacity magazines at issue are ‘in

common    use’       as    that   term     was      used     in     Heller.”);         Colorado

Outfitters Ass’n v. Hickenlooper, 24 F. Supp. 3d 1050, 1068 (D.

Colo.    2014)       (concluding        that       statute     “affects      the       use    of

firearms that are both widespread and commonly used for self-

defense,” in view of the fact that “lawfully owned semiautomatic

firearms using a magazine with the capacity of greater than 15

rounds number in the tens of millions”), vacated in part on

other grounds, 823 F.3d 537 (10th Cir. 2016).

       The record also shows unequivocally that magazines with a

capacity of greater than 10 rounds are commonly kept by American

citizens, as there are more than 75 million such magazines owned

by them in the United States.                       These magazines are so common

that they are standard on many firearms:                             “[O]n a nationwide

basis most pistols are manufactured with magazines holding ten

to 17 rounds.” J.A. 2122.                Even more than 20 years ago, “fully

18   percent     of       all   firearms     owned     by    civilians       .     .    .    were

equipped with magazines holding more than ten rounds.”                                   Heller

                                               94
II, 670 F.3d at 1261; see Fyock v. City of Sunnyvale, 779 F.3d

991, 998 (9th Cir. 2015) (“[W]e cannot say that the district

court abused its discretion by inferring from the evidence of

record that, at a minimum, [such] magazines are in common use.”) 2

     Millions    of    Americans    keep     semiautomatic     rifles    and   use

them for lawful, non-criminal activities, including as a means

to defend their homes.        Plaintiffs Kolbe and Turner both seek to

acquire and keep semi-automatic rifles, equipped with magazines

able to hold more than 10 rounds, in their homes primarily for

self-defense – a common and legitimate purpose for possessing

these firearms.        Plaintiffs’ expert James Curcuruto presented

survey evidence showing that self-defense was a primary reason

for the purchase of weapons banned under the FSA, and a 1989

Report   from   the    Bureau      of   Alcohol,    Tobacco,       and   Firearms

indicated   that      self-defense       was    a   suitable       purpose     for

semiautomatic    rifles.     The   State's     expert   Daniel     Webster     even

agreed   that   it    is   reasonable    to    assume   that   a    purpose    for

keeping one of the prohibited weapons is “self-defense in the

home.”   J.A. 2291.




     2 Although the majority does not reach the issue of whether
detachable magazines constitute bearable arms entitled to Second
Amendment protection, such magazines quite clearly constitute
arms for the reasons set forth in the now vacated panel opinion.
See Kolbe v. Hogan, 813 F.3d 160, 175 (4th Cir. 2016).


                                        95
     Because the evidence before us clearly demonstrates that

these popular weapons are commonly possessed for lawful purposes

and are therefore not dangerous and unusual, they are covered by

the Second Amendment.       The majority errs in holding otherwise. 3

    B.    The Majority’s Balancing Test is contrary to Heller.

     Rather than apply the Supreme Court’s common-use test to

determine whether the Second Amendment applies to a particular

type of weapon or magazine, the majority creates a heretofore

unknown   “test,”   which    is   whether   the    firearm   in   question   is

“most useful in military service.” 4              Under this newly-birthed



     3  It is evident that my good friends in the majority simply
do not like Heller’s determination that firearms commonly
possessed for lawful purposes are covered by the Second
Amendment. In the majority’s view, Heller’s “commonly possessed”
test produces unacceptable results in this case, providing
Second Amendment coverage for semiautomatic rifles owned by less
than 1% of the American public and thwarting “efforts by the
other 99%” to ban them.     Majority Op. at 60.    This assertion
rests on the false premise that every American who does not own
a semiautomatic rifle wishes to ban them.       That is quite a
stretch.    In fact, a recent Gallup poll shows that public
support for a so-called assault weapons ban is at 36%.      Thus,
for what it is worth, substantially more Americans oppose a ban
than favor it.    See www.gallup.com/poll/196658/support-assault-
weapons-ban-record-low.aspx (last visited Feb. 13, 2017).
     4 Since the majority has not previously articulated this
novel interpretation of Heller, neither side in the district
court focused its evidence or legal arguments on proving or
disproving that semiautomatic rifles such as the AR-15 are “most
useful” as military weapons or on the question of whether
qualifying as “militarily useful” would remove the weapon from
Second Amendment protection.    And the district court likewise
did not address these questions.   If this is the new standard,
then basic fairness requires that the plaintiffs have an
(Continued)
                                     96
test,     which   seems        to   be   a     stand-alone        inquiry,     the   Second

Amendment does not apply if a court deems a weapon “most useful”

in combat operations.               And in the case before us today, the

majority concludes that the Second Amendment does not apply at

all because semiautomatic rifles, in the military opinion of the

majority, are more useful as military weapons than as weapons

for     individual       self-defense,          hunting       and     target    or   sport

shooting.         See    Majority        Op.      at    47   (“Whatever      their    other

potential uses—including self-defense—the AR-15, other assault

weapons, and large-capacity magazines prohibited by the FSA are

unquestionably          most    useful       in        military     service.”).       This

analysis is clearly at odds with the Supreme Court’s approach in

Heller setting out how courts, including the majority, are to go

about a Second Amendment inquiry. 5




opportunity to squarely meet the issue.     See United States v.
Chester, 628 F.3d 673, 683 (4th Cir. 2010) (“Having established
the appropriate standard of review, we think it best to remand
this case to afford the government an opportunity to shoulder
its burden and Chester an opportunity to respond. Both sides
should have an opportunity to present their evidence and their
arguments to the district court in the first instance.”).
      5In articulating and then applying its novel military
usefulness test, not only has the majority failed to afford
plaintiffs an opportunity to respond, but it has abandoned the
summary judgment standard and reached a conclusion based on
facts viewed in the light most favorable to the State, the
proponent of the summary judgment motion, and not the plaintiffs
as the non-movants.   See Woollard v. Gallagher, 712 F.3d 865,
873 (4th Cir. 2013) (applying Fed. R. Civ. P. 56(a) in Second
(Continued)
                                               97
       First, the majority simply ignores “the pertinent Second

Amendment inquiry”—“whether [the firearms at issue] are commonly

possessed by law-abiding citizens for lawful purposes today.”

Caetano,    136   S.   Ct.    1032    (Alito,      J.,    concurring)   (emphasis

omitted).     But, this omission is understandable in light of the

millions of law-abiding Americans who possess the semiautomatic

rifles at issue, as explained previously.                 It is beyond debate.

       Second, the majority makes no attempt to demonstrate that

semiautomatic     rifles       have   been     historically       prohibited     as

“dangerous and unusual” weapons.               Instead, our court today has

adopted an ad hoc analysis that excludes a weapon from Second

Amendment protection if it appears to be “like” an M-16 or “most

useful   in   military       service.”        Under      this   approach,   it   is

irrelevant that a firearm may have been commonly possessed and

widely accepted as a legitimate firearm for law-abiding citizens

for hundreds of years; such a weapon could be removed from the

scope of the Second Amendment so long as a court says it is

“like” an M-16 or, even easier, just calls it a “weapon of war.”

Indeed, Justice Alito pointed out in his Caetano concurrence

that   even   a   stun   gun    capable       of   only    non-lethal   force    is




Amendment context and “viewing the facts and inferences
reasonably drawn therefrom in the light most favorable to the
nonmoving party”).


                                         98
suitable   for    military      use.       See   id.      Obviously,      what   the

majority   ignores    from      Heller    is   that    “weapons   that    are    most

useful in military service-–M-16 rifles and the like”-–are not

“typically possessed by law-abiding citizens” today.                       Heller,

554 U.S. at 625, 627.             While the majority’s quoted reference

from   Heller    would    exclude      weapons    “most    useful    in   military

service” such as Gatling guns, mortars, bazookas, etc., no one

could claim these items were ever commonly possessed for Second

Amendment purposes.        Indeed, such “M-16 rifles and the like” are

outside the Second Amendment because they “are highly unusual in

society at large.”        Id. at 627.

       Third,    Heller    in    no      way   suggests    that     the   military

usefulness of a weapon disqualifies it from Second Amendment

protection.      That is the majority’s singular concoction.                On the

contrary, the Second Amendment has always been understood to

cover weapons useful in military operations.                Indeed, the Second

Amendment at the Founding was grounded in the need to safeguard

the commonly possessed weapons of citizens for military service.

“[A]t the time of the Second Amendment’s ratification,” it was

understood that “all citizens capable of military service . . .

would bring the sorts of lawful weapons that they possessed at

home to militia duty.”           Heller, 554 U.S. at 627.            “‘Ordinarily

when called for militia service able-bodied men were expected to

appear bearing arms supplied by themselves and of the kind in

                                          99
common use at the time.’”       Id. at 624 (quoting United States v.

Miller, 307 U.S. 174, 179 (1939)) (alterations omitted).                 Under

the majority’s analysis, a settler’s musket, the only weapon he

would likely own and bring to militia service, would be most

useful   in   military   service—undoubtedly     a     weapon    of    war—and

therefore not protected by the Second Amendment.               This analysis

turns Heller on its head.       Indeed, the Court in Heller found it

necessary to expressly reject the view that “only those weapons

useful   in   warfare    are   protected.”      Id.    (emphasis       added).

Weapons useful in warfare are obviously protected by the Second

Amendment; if this were not so, the Court would have had no

reason   to   caution    against    the   assumption    that     the   Second

Amendment protects only weapons useful in military operations.

     Read in context, Heller’s reference to “weapons that are

most useful in military service” clearly does not provide some

alternative to the “in common use” query for determining whether

the Second Amendment applies.         If it were otherwise, the “most

useful   in   military   service”   rubric    would    remove    nearly   all

firearms from Second Amendment protection as nearly all firearms

can be useful in military service.           Heller settled “a decades-

long debate between those who interpreted the text to guarantee

a private, individual right to bear arms and those who generally

read it to secure a collective right to bear arms in connection

with service in the state militia.”          Chester, 628 F.3d at 674–

                                    100
75.    Heller determined that the prefatory clause of the Second

Amendment, which refers to the militia, does not limit the right

to “keep and bear Arms” set forth in the operative clause, 554

U.S. at 578, and therefore that the Second Amendment “protects

an    individual    right    to   possess   a    firearm   unconnected    with

service in a militia,” id. at 577.              In addressing the criticism

that the Court had simply read the prefatory clause out of the

Second Amendment, the Court explained:

           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.   at   627-28    (emphasis    added).       Thus,   because    the   Second

Amendment “protects an individual right to possess a firearm

unconnected with service in a militia,” id. at 577, “whether a

weapon has a nexus to military utility is not the test as to

whether    that     weapon   receives   Second      Amendment     protection,”

Hollis, 827 F.3d at 446.



                                      101
     In sum, if a “weapon belongs to a class of arms commonly

used for lawful purposes,” Caetano, 136 S. Ct. at 1031 (Alito,

J., concurring), then it comes within the ambit of the Second

Amendment and our threshold inquiry is at an end.                    The fact that

a weapon is designed “for the purpose of bodily assault” and

“constructed to produce death or great bodily harm” “cannot be

used to identify arms that fall outside the Second Amendment.”

Id. (internal quotation marks omitted).                    That is, “the relative

dangerousness of a weapon is irrelevant” where the weapon is

“commonly      used      for   lawful   purposes.”          Id.    Under   Heller,

therefore,        even    a    weapon      that     some   court   concludes    has

militarily useful features or is too dangerous for civilians to

possess is covered by the Second Amendment if it is “commonly

used for lawful purposes.”

          C.      It is anything but clear that semiautomatic
                   sporting rifles are “weapons of war.”

     The majority concludes that the semiautomatic rifles banned

by Maryland law are most useful in military service, even though

they are not in regular use by any military force, including the

United States Army, whose standard-issue weapon has been the

fully automatic M16- and M4-series rifles.                   See Hollis, 827 F.3d

at 440 n.2.

     In     its    effort      to   show     that    semiautomatic     rifles   are

devastating weapons of war whose only legitimate purpose is to


                                           102
lay   waste    to     a    battlefield      full    of   combatants,    the    majority

first states that the rates of fire between the fully automatic

M16 service rifle and the semiautomatic AR-15 sporting rifle are

“nearly identical.”             This claim seems counter-intuitive because

semiautomatic firearms require that the shooter pull the trigger

for   each    shot        fired,   while    fully    automatic   weapons—otherwise

known as “machine guns”—do not require a pull of the trigger for

each shot and will discharge every round in the magazine as long

as the trigger is depressed.                See Staples v. United States, 511

U.S. 600, 602 n. 1 (1994).                 The rate of fire of a semiautomatic

firearm is determined simply by how fast the shooter can squeeze

the trigger.

       The majority’s assertion might surprise the United States

Army, which sets the maximum effective rates of M4- and M16-

series      rifles    operating      in     semi-automatic     mode    at     45   to   65

rounds per minute--only about five rounds in five seconds (not

30 rounds as the majority believes).                     This is far slower than

150 to 200 rounds per minute that may effectively be fired by

the   same    arms     operating     in     fully    automatic   mode.      See    United

States Dep’t of Army, Field Manual 3-22.9, Rifle Marksmanship,

M16-/M4-Series Weapons, Table 2-1 (2008).                     Some of the experts

at    the    Bureau       of   Alcohol,     Tobacco,     Firearms     and   Explosives

(“BATF”) might be surprised as well, in light of the testimony

submitted to Congress on behalf of BATF:

                                            103
      The AK-47 is a select fire weapon capable of firing
      600 rounds per minute on full automatic and 40 rounds
      per minute on semi-automatic.  The AKS and AK-47 are
      similar in appearance.   The AK-47 . . . [has] been
      manufactured as a machine gun. . . .    The AKS is a
      semi-automatic that, except for its deadly military
      appearance, is no different from other semi-automatic
      rifles.

Hearings on S. 386 Before the Subcomm. on the Constitution of

the Senate Comm. on the Judiciary, 101st Cong. 28-29 (1989).

      Of    course,     if     the     majority          is    correct       that     the

semiautomatic AR-15’s rate of fire makes it a weapon of war

outside     the     scope     of     the     Second        Amendment,        then     all

semiautomatic       firearms—including              the       vast       majority      of

semiautomatic handguns—enjoy no constitutional protection since

the rate of fire for any semiautomatic firearm is determined by

how fast the shooter can squeeze the trigger.                      Such a conclusion

obviously flies in the face of Heller, which never mentions rate

of fire as a relevant consideration.                     Likewise, the suggestion

that the ability to accept large–capacity magazines facilitates

a   firearm’s     military    usefulness         applies      to   all    semiautomatic

weapons,    including       constitutionally-protected               handguns,      since

any firearm that can hold a magazine can theoretically hold one

of any size.

      The   majority        also     suggests       that       other      features    of

semiautomatic      rifles     like    the        AR-15    make     them     devastating

military weapons.       But several of the features identified do not


                                           104
make the firearms more lethal or battle-ready, but easier to

use.       On the contrary, many of the “military-style” components

“increase       accuracy    and    improve      ergonomics.”         J.A.    2100.   A

telescoping stock, for example, permits the operator to adjust

the length of the stock according to his or her physical size so

that the rifle can be held comfortably.                  J.A. 2182.    Likewise, a

pistol grip provides comfort, stability, and accuracy, see David

B.     Kopel,     Rational        Basis    Analysis      of     “Assault      Weapon”

Prohibition, 20 J. Contemp. L. 381, 396 (1994) (“By holding the

pistol grip, the shooter keeps the barrel from rising after the

first shot, and thereby stays on target for a follow-up shot.

The defensive application is obvious, as is the public safety

advantage in preventing stray shots.”), and                   barrel shrouds keep

the operator from burning himself or herself upon contact with

the barrel. 6     And although flash suppressors can indeed conceal a

shooter’s       position—which       is    also    an    advantage    for     someone

defending       his   or   her    home    at    night—they    serve    the    primary

function of preventing the shooter from being blinded in low-

lighting      conditions.          See    Kopel,    at    397    (“Reduced      flash



       6
       These features, the majority suggests, enable a shooter to
“spray-fire” rounds everywhere.      “Spray-firing” can only be
accomplished with a fully automatic assault rifle like an M4
carbine; “[i]n semiautomatic mode it is possible to either aim
fire or to point shoot, but it is not possible to spray fire in
the manner as one would in fully automatic mode.” J.A. 2128.


                                          105
decreases shooter's blindness--the momentary blindness caused by

the sudden flash of light from the explosion of gunpowder.                             The

flash reduction is especially important for shooting at dawn or

at    dusk.”).     None     of    these    features     convert     a    semiautomatic

rifle into a weapon of war like a machinegun carried into battle

by actual soldiers.          It is unclear to me why features that make

a firearm easier and safer to operate add to its battlefield

prowess. 7

       In    deciding   that      the     banned      semiautomatic       rifles      “are

unquestionably most useful in military service,” the majority

cavalierly       dismisses       “their     other      potential        uses”    without

discussion.       The irony is that millions of law-abiding Americans

actually use these versatile guns, while there do not seem to be

any    military    forces       that    routinely     carry    an   AR-15       or   other

semiautomatic      sporting       rifles    as   an    officially-issued         service

weapon—at least the majority has not identified any.                            If these

firearms were such devastating weapons of war, one would think

that they would be standard issue for military forces across the

globe.       Whatever     the    potential       military     usefulness        of   these



       7
       Nor does it appear that an AR-15-style rifle fires rounds
that create a greater risk to civilians than rounds fired by a
standard hunting rifle.    In fact, just the opposite is true.
The AR-15’s standard .223/5.56 mm ammunition is “quite anemic in
penetration capability and pale[s] in destructive capacity when
compared to common civilian hunting rifles . . . .” J.A. 2095.


                                           106
weapons, millions of American citizens actually use them for

sporting purposes and possess them to defend themselves, their

families and their homes.             Indeed, plaintiffs’ evidence suggests

that       “[t]he   semi-automatic     AR15     carbine    is   likely   the    most

ergonomic,      safe,     readily   available     and     effective   firearm    for

civilian self-defense.”          J.A. 2091. 8

       The semiautomatic firearms banned by Maryland are commonly

“chosen by Americans for self-defense in the home” and are thus

clearly       protected    by   the     Second    Amendment--“[w]hatever         the

reason” for their popularity.                 Heller, 554 U.S. at 629.           The

real       question   is    whether     the    district     court     applied    the

appropriate level of scrutiny in determining any limitations on

Second Amendment protection.            As explained below and in the now-

vacated panel opinion, see Kolbe, 813 F.3d at 179-84, it did

not.

                          II.   Strict Scrutiny Applies

       To select the proper level of scrutiny, we consider “the

nature of the conduct being regulated and the degree to which

       8
       The majority’s utilization of the “military use” theory
instead of the common use test produces ironic results.      For
example, the law my colleagues uphold today permits Maryland
residents to possess the M1 Garand rifle, which was the
standard-issue battle rifle for American troops in World War II
and the Korean War. The result of the holding in this case is
that it is legal in Maryland to possess a rifle that was
actually used by our military on the battlefield, but illegal to
possess a rifle never used by our military.


                                         107
the challenged law burdens the right.”                     Chester, 628 F.3d at

682.     “A severe burden on the core Second Amendment right of

armed self-defense should require strong justification.”                        United

States    v.   Masciandaro,        638   F.3d    458,     470   (4th    Cir.     2011)

(internal quotation marks omitted).                However, “laws that do not

implicate      the      central    self-defense      concern       of   the     Second

Amendment[]       may    be    more   easily     justified.”        Id.    (internal

quotation marks omitted); see Nat’l Rifle Ass’n of Am., Inc. v.

Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185,

195 (5th Cir. 2012) (“A less severe regulation—a regulation that

does not encroach on the core of the Second Amendment—requires a

less demanding means-ends showing.”).

       Maryland’s ban on the AR-15 and other semiautomatic rifles

forbids     its      law-abiding      citizens     from     purchasing        commonly

possessed firearms for use in their homes for the protection of

self and family.              By reaching into private homes, where the

protection afforded by the Second Amendment is at its greatest,

Maryland’s     law      clearly   implicates      the     “core”   of     the   Second

Amendment: “the right of law-abiding, responsible citizens to

use arms in defense of hearth and home.”                    Heller, 554 U.S. at

635.     The Supreme Court in Heller made clear that the “inherent

right of self-defense has been central to the Second Amendment,”

id. at 628 (emphasis added), and that this central component of

the Second Amendment is at its strongest within “the home where

                                         108
the   need    for      defense      of   self,     family,      and    property         is    most

acute,” id. See also Kachalsky v. County of Westchester, 701

F.3d 81, 89 (2d Cir. 2012) (“What we know from [Heller and

McDonald v. City of Chicago] is that Second Amendment guarantees

are at their zenith within the home.”).                             At stake here is a

“basic right,” McDonald v. City of Chicago, 561 U.S. 742, 767

(2010),      “that      the    Framers      and    ratifiers          of   the    Fourteenth

Amendment counted . . . among those fundamental rights necessary

to our system of ordered liberty,” id. at 778.                              “The [Supreme]

Court [in Heller] went to great lengths to emphasize the special

place that the home-an individual’s private property-occupies in

our society.”          GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244,

1259 (11th Cir. 2012).

      The    majority         is    incredulous        that    we   would       apply       strict

scrutiny to a law prohibiting the possession of a commonly used

firearm to protect family and home.                           But, of course we would

apply   strict         scrutiny—we       have     no   other     alternative           in    these

circumstances.           Once it is determined that a given weapon is

covered      by   the    Second      Amendment,        then     obviously        the    in-home

possession        of    that       weapon   for     self-defense           is    core       Second

Amendment conduct and strict scrutiny must apply to a law that

prohibits it.          This position is not remarkable in the least, and

I am not alone in this circuit in adhering to it.                                  Indeed, a

panel of this court recently made very clear in United States v.

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Hosford    that     strict   scrutiny     applies     when      a   law     restricting

possession of a firearm applies to conduct inside of the home

and touches on self-defense concerns.                  See 843 F.3d 161, 168

(4th Cir. 2016).          In Hosford, which was decided after en banc

argument in this case, the defendant raised a Second Amendment

challenge      to   his   conviction     under   a    law       that    “impose[d]     a

licensing      requirement     on   those      who    wish[ed]         to   profit   by

regularly       selling       firearms      outside        of       their      personal

collection.”        Id.      In explaining why the law at issue there

should receive only intermediate scrutiny, the panel stated as

follows:

            Here,   even    assuming     that  the    prohibition
       implicates conduct protected by the Second Amendment,
       the   prohibition   does   not    touch  on   the   Second
       Amendment's core protections. Individuals remain free
       to possess firearms for self-defense. Individuals also
       remain free to purchase or sell firearms owned for
       personal, self-defensive use. . . . [The law] serves,
       not   as   a  prohibition,    but    as a   condition   or
       qualification.    The law, therefore, regulates rather
       than restricts, addresses only conduct occurring
       outside the home, and does not touch on self-defense
       concerns. It is thus subject to intermediate scrutiny.

Id. (emphasis added).          In this passage, the Hosford panel very

ably   shows    why   intermediate       scrutiny     is    required        there,   but

strict scrutiny is required here.                Under the Maryland law we

consider today, individuals do not remain free to purchase or

possess the banned firearms for self-defense inside of their

homes.     Thus, Maryland’s law restricts rather than regulates; it


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addresses conduct occurring inside the home; and it directly

touches    self-defense       concerns      in   the     home.      Maryland’s     law

imposes dramatic limitations on the core protections guaranteed

by   the   Second    Amendment       and,   as     implicitly     admitted    by   the

Hosford panel, requires the court to apply strict scrutiny.

      My friends in the majority do not apply strict scrutiny

because they do not believe that the Maryland law significantly

burdens    the    “core     lawful    purpose”      of    the    Second   Amendment.

Their reasoning?          Maryland left handguns (and other weapons) for

its residents to use to defend their homes, and this ought to be

enough.      This line of thought was expressly rejected by the

Supreme    Court     in    Heller,     which     dismissed       the   District    of

Columbia’s       reverse    contention      that    its    handgun     ban   did   not

unconstitutionally burden the right to self-defense because long

guns were still permitted for home defense.                       See Heller, 554

U.S. at 629 (“It is no answer to say, as petitioners do, that it

is permissible to ban the possession of handguns so long as the

possession of other firearms (i.e., long guns) is allowed.”);

accord Parker v. District of Columbia, 478 F.3d 370, 400 (D.C.

Cir. 2007) (rejecting the District’s argument that alternative

weapons rendered handgun ban lawful, calling it “frivolous,” and

noting that “[i]t could be similarly contended that all firearms

may be banned so long as sabers were permitted”).                         As long as

the firearms chosen are those commonly possessed by the American

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people for lawful purposes—and the rifles at issue here most

certainly      are—states         cannot       prohibit     their    residents      from

purchasing      them     for      self-defense       in    the    home    unless    that

restriction can meet strict scrutiny review.

       The majority, however, implies that this portion of Heller

does   not    apply    to    a    ban    of    commonly      possessed     firearms    if

handguns are still available to the homeowner because handguns

are “the quintessential self-defense weapon.”                       554 U.S. at 629.

If the majority were correct, then any state “would be free to

ban all weapons except handguns, because handguns are the most

popular      weapon    chosen      by    Americans     for      self-defense   in     the

home.”        Caetano,      136    S.    Ct.    1032      (Alito,   J.,    concurring)

(internal quotation marks omitted).                  Under the majority’s logic,

a state could similarly ban all shotguns, even those commonly

used in hunting, and not transgress the Second Amendment, so

long as handguns remained lawful to possess.                             The fact that

handguns are still available is irrelevant.                       If other firearms,

though    “less   popular         than   handguns,”       are    nonetheless   “widely

owned and accepted as a legitimate means of self-defense across

the country,” they cannot be banned simply because more popular

handguns are not.        Id. at 1033.

       Finally, we are told that the ban on semiautomatic rifles

is not burdensome because these weapons are not even well-suited

for defense of hearth and home—handguns are better and that is

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all law-abiding citizens need. 9              This is patently wrong.               First,

there are legitimate reasons for citizens to favor semiautomatic

rifles over handguns in defending themselves and their families

at    home.      The       record    contains     evidence,     which       on    summary

judgment was to be viewed in the light most favorable to the

plaintiffs,       suggesting         that    “handguns    are          inherently    less

accurate than long guns” as they “are more difficult to steady”

and    “absorb      less     of     the   recoil[,]   .   .    .       [thus]     reducing

accuracy.”       J.A. 2131. This can be an important consideration

for a typical homeowner, who “under the extreme duress of an

armed and advancing attacker is likely to fire at, but miss, his

or her target.” J.A. 2123. “Nervousness and anxiety, lighting

conditions, the presence of physical obstacles . . . , and the

mechanics of retreat are all factors which contribute to [the]

likelihood” that the homeowner will shoot at but miss a home

invader.      Id.      These factors could also affect an individual’s

ability    to    reload     a     firearm   quickly   during       a    home     invasion.




      9If, as the majority says, there is “scant evidence” that
the prohibited semiautomatic rifles are well-suited for home
defense, then there is even less reason to believe that these
weapons are best suited for combat operations.    After all, it
cannot be disputed that one reason non-criminal citizens
actually keep these weapons at home is for self-defense. I have
searched the record in vain for the statistics on how many
standing armies issue AR-15s or semiautomatic-only-weapons to
their troops. I do not believe there are any.


                                            113
Similarly, a citizen's ability to defend himself and his home is

enhanced with an LCM.

       Second, the means selected by citizens to defend themselves

and    their     families       at    home      is    an      intensely        personal      choice

dependent upon circumstances unique to each individual.                                         Not

everyone       who     would     bear      arms       in      defense         of   his   home    is

comfortable or confident using a handgun.                            As long as the weapon

chosen   is      one    commonly      possessed          by    the    American        people    for

lawful purposes—and the rifles at issue here most certainly are—

the state has very little say about whether its citizens should

keep it in their homes for protection.                                   “The question under

Heller     is     not    whether          citizens         have     adequate         alternatives

available for self-defense.                  Rather, Heller asks whether the law

bans    types     of    firearms      commonly         used        for    a    lawful       purpose—

regardless of whether alternatives exist.”                               Friedman v. City of

Highland        Park,    136     S.       Ct.     447,      449      (2015)        (Thomas,     J.,

dissenting       from     the    denial         of    certiorari).                 “[T]he    Second

Amendment       confers     rights         upon      individual           citizens—not        state

governments,” and it clearly does not “delegate to States and

localities       the     power       to    decide          which     firearms        people     may

possess.”        Id.    “The very enumeration of the right takes out of

the hands of government—even the Third Branch of Government—the

power to decide on a case-by-case basis whether the right is

really worth insisting upon.”                   Heller, 554 U.S. at 634.

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      Nevertheless, Maryland has taken the choice away from its

residents      and    simply     determined        that,    regardless     of     the

circumstances in any case, its people, whether living in a 700

square-foot apartment or a 50-acre farm, may only protect their

loved ones with one of the guns the State thinks they should

use—perhaps     a    handgun,    or   a   slow-to-load      bolt-action    hunting

rifle or a shotgun with heavy recoil.                      “The right to self-

defense is largely meaningless if it does not include the right

to    choose   the    most     effective    means     of    defending    oneself.”

Friedman v. City of Highland Park, 784 F.3d 406, 418 (7th Cir.

2015) (Manion, J., dissenting).                 Indeed, “the ultimate decision

for what constitutes the most effective means of defending one’s

home, family, and property resides in individual citizens and

not   the   government.      .   .    .     The    extent    of   danger—real      or

imagined—that a citizen faces at home is a matter only that

person can assess in full.”           Id. at 413.

      For a law-abiding citizen who, for whatever reason, chooses

to protect his home with a semi-automatic rifle instead of a

semi-automatic        handgun,       Maryland’s      law    clearly     imposes    a

significant burden on the exercise of the right to arm oneself

at home, and it should at least be subjected to strict scrutiny

review before it is allowed to stand.

       For the reasons I have set forth, I respectfully dissent.



                                          115
TRAXLER, Circuit Judge, dissenting       as   to   Part   IV.A   and
concurring as to Part IV.B:

     For the reasons set forth in the now-vacated panel opinion,

I dissent from the majority’s opinion on the equal protection

claim.   See Kolbe v. Hogan, 813 F.3d 160, 199-202 (4th Cir.

2016).

     I concur in the result reached by the majority with respect

to the vagueness challenge, for the reasons expressed in the

now-vacated panel opinion.   See id. at 190-92.




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