Bianchi v. Brown

Full title: DOMINIC BIANCHI, an individual and resident of Baltimore County; DAVID…

Court: United States Court of Appeals, Fourth Circuit

Date published: Aug 6, 2024

111 F.4th 438 (4th Cir. 2024)

Opinion

No. 21-1255

08-06-2024

Dominic BIANCHI, an individual and resident of Baltimore County; David Snope, an individual and resident of Baltimore County; Micah Schaefer, an individual and resident of Anne Arundel County; Field Traders LLC, A resident of Anne Arundel County; Firearms Policy Coalition, Inc.; Second Amendment Foundation; Citizens Committee for the Right To Keep and Bear Arms, Plaintiffs-Appellants v. Anthony G. BROWN, in his official capacity as Attorney General of Maryland; Col. Woodrow W. Jones, III, in his official capacity as Secretary of State Police of Maryland; R. Jay Fisher, in his official capacity as Sheriff of Baltimore County, Maryland; Everett L. Sesker, in his official capacity as Sheriff of Anne Arundel County, Maryland, Defendants-Appellees. John CutonillI, Amicus Supporting Appellants and Giffords Law Center To Prevent Gun Violence; Brady Center To Prevent Gun Violence; March for Our Lives; Everytown for Gun Safety, Amici Supporting Appellees.

ARGUED: Peter A. Patterson, COOPER & KIRK, PLLC, Washington, D.C., for Appellants. Robert A. Scott, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Raymond M. DiGuiseppe, THE DIGUISEPPE LAW FIRM, P.C., Southport, North Carolina; Adam Kraut, FIREARMS POLICY COALITION, Sacramento, California; David H. Thompson, Tiernan B. Kane, COOPER & KIRK, PLLC, Washington, D.C., for Appellants. Brian E. Frosh, Attorney General, Ryan R. Dietrich, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, for Baltimore, Maryland, for Appellees. John Cutonilli, Garret Park, Maryland, for Amicus John Cutonilli. Esther Sanchez-Gomez, Leigh Rome, William T. Rome, GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE, San Francisco, California, for Amicus Giffords Law Center to Prevent Gun Violence. Douglas N. Letter, Shira Lauren Feldman, BRADY CENTER TO PREVENT GUN VIOLENCE, Washington, D.C., for Amicus Brady Center to Prevent Gun Violence. Ciara Wren Malone, MARCH FOR OUR LIVES, New York, New York, for Amicus March for Our Lives. Eric B. Bruce, Jennifer Loeb, Washington, D.C., Aaron R. Marcu, Brandt Henslee, Yulia Dernovsky, Daniel Hodgkinson, Susannah Benjamin, Taylor Jachman, FRESHFIELDS BRUCKHAUS DERINGER US LLP, New York, New York, for Amici Giffords Law Center to Prevent Gun Violence, Brady Center to Prevent Gun Violence, and March for Our Lives. Janet Carter, William J. Taylor, Jr., Priyanka Gupta Sen, EVERYTOWN LAW, New York, New York, for Amicus Everytown for Gun Safety.

WILKINSON, Circuit Judge

Appeal from the United States District Court for the District of Maryland at Baltimore. James K. Bredar, Senior District Judge. (1:20-cv-03495-JKB)

ARGUED: Peter A. Patterson, COOPER & KIRK, PLLC, Washington, D.C., for Appellants. Robert A. Scott, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Raymond M. DiGuiseppe, THE DIGUISEPPE LAW FIRM, P.C., Southport, North Carolina; Adam Kraut, FIREARMS POLICY COALITION, Sacramento, California; David

H. Thompson, Tiernan B. Kane, COOPER & KIRK, PLLC, Washington, D.C., for Appellants. Brian E. Frosh, Attorney General, Ryan R. Dietrich, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, for Baltimore, Maryland, for Appellees. John Cutonilli, Garret Park, Maryland, for Amicus John Cutonilli. Esther Sanchez-Gomez, Leigh Rome, William T. Rome, GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE, San Francisco, California, for Amicus Giffords Law Center to Prevent Gun Violence. Douglas N. Letter, Shira Lauren Feldman, BRADY CENTER TO PREVENT GUN VIOLENCE, Washington, D.C., for Amicus Brady Center to Prevent Gun Violence. Ciara Wren Malone, MARCH FOR OUR LIVES, New York, New York, for Amicus March for Our Lives. Eric B. Bruce, Jennifer Loeb, Washington, D.C., Aaron R. Marcu, Brandt Henslee, Yulia Dernovsky, Daniel Hodgkinson, Susannah Benjamin, Taylor Jachman, FRESHFIELDS BRUCKHAUS DERINGER US LLP, New York, New York, for Amici Giffords Law Center to Prevent Gun Violence, Brady Center to Prevent Gun Violence, and March for Our Lives. Janet Carter, William J. Taylor, Jr., Priyanka Gupta Sen, EVERYTOWN LAW, New York, New York, for Amicus Everytown for Gun Safety.

Before DIAZ, Chief Judge, and WILKINSON, NIEMEYER, KING, GREGORY, AGEE, WYNN, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, RUSHING, HEYTENS, BENJAMIN and BERNER, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Diaz, Judge King, Judge Wynn, Judge Thacker, Judge Harris, Judge Heytens, Judge Benjamin, and Judge Berner joined. Chief Judge Diaz wrote a concurring opinion, in which Judge King, Judge Wynn, Judge Thacker, Judge Benjamin, and Judge Berner joined. Judge Gregory wrote an opinion concurring in the judgment. Judge Richardson wrote a dissenting opinion, in which Judge Niemeyer, Judge Agee, Judge Quattlebaum, and Judge Rushing joined.

WILKINSON, Circuit Judge:

The elected representatives of the people of Maryland enacted the Firearms Safety Act of 2013 in the wake of mass shootings across the country and a plague of gun violence in the state. This case is about whether the Act's general prohibition on the sale and possession of certain military-style "assault weapons," including the AR-15, the AK-47, and the Barrett .50 caliber sniper rifle, is unconstitutional under the Second Amendment.

We considered this issue as an en banc court in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), where we held that Maryland's regulation of these assault weapons is consistent with the Second Amendment. However, in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), the Supreme Court clarified how courts are to resolve Second Amendment challenges and rejected part of our approach in Kolbe.

With the respectful consideration and benefit of Bruen, we now uphold the judgment below. The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense. Moreover, the Maryland law fits comfortably within our nation's tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once

their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.

For these reasons, we decline to wield the Constitution to declare that military-style armaments which have become primary instruments of mass killing and terrorist attacks in the United States are beyond the reach of our nation's democratic processes. In so holding, we offer no view on how a state should regulate firearms. Nor do we do anything to impose Maryland's regulations upon other states. We do hold, however, that Maryland was well within its constitutional prerogative to legislate as it did. We therefore reject the challenges of appellants and affirm the judgment of the district court.

Our friends in dissent would rule the Maryland statute unconstitutional. They would go so far as to uphold a facial challenge to the enactment, meaning that there is no conceivable weapon, no matter how dangerous, to which the Act's proscriptions can validly be applied. In so doing, they reject the centuries of common law that infused accommodation in the rights our founding generation recognized. And in creating a near absolute Second Amendment right in a near vacuum, the dissent strikes a profound blow to the basic obligation of government to ensure the safety of the governed. Arms upon arms would be permitted in what can only be described as a stampede toward the disablement of our democracy in these most dangerous of times. All this we shall explain.

The Supreme Court remanded this case for reconsideration in light of Bruen, a task which we shall, with great respect, perform. We conclude that Bruen did not mandate an abandonment of our faith in self-governance, nor did it leave the balance struck throughout our history of firearms regulation behind.

I.

Maryland law prohibits any person in the state from selling, purchasing, receiving, transporting, transferring, or possessing an "assault weapon," subject to limited exceptions. Md. Code, Crim. Law § 4-303. A violator of this statute faces up to three years' imprisonment. Id. § 4-306. Maryland law enforcement officers are authorized to seize and dispose of weapons sold, purchased, received, transported, transferred, or possessed in violation of the law. Id. § 4-304.

The statute defines "assault weapon" as "(1) an assault long gun; (2) an assault pistol; or (3) a copycat weapon." Id. § 4-301(d). The term "assault long gun," in turn, encompasses more than forty-five enumerated long guns "or their copies, regardless of which company produced and manufactured" the firearm. Id. § 4-301(b); see Md. Code, Pub. Safety § 5-101(r)(2). These proscribed guns include an assortment of military-style rifles and shotguns capable of semiautomatic fire, such as the AK-47, almost all models of the AR-15, the SPAS-12, and the Barrett .50 caliber sniper rifle. See Md. Code, Pub. Safety § 5-101(r)(2). The term "assault pistol" encompasses more than fifteen enumerated firearms and their copies. These include the TEC-9 and semiautomatic variants of the MAC-10, MP5K, UZI, and other military-style submachine guns. Md. Code, Crim. Law § 4-301(c).

"Copycat weapon" is defined as a firearm that is not an assault long gun or assault pistol yet is covered by at least one of the following six categories:

(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;

(iv) a semiautomatic pistol with a fixed magazine that can accept more than 10 rounds;

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

(vi) a shotgun with a revolving cylinder.

Id. § 4-301(h).

Appellants are three Maryland residents who allege that they are legally eligible to possess and acquire firearms, three nonprofit gun rights organizations to which the residents belong, and a licensed firearms dealer based in Maryland. On November 13, 2020, appellants filed a complaint under 42 U.S.C. § 1983 in the U.S. District Court for the District of Maryland against the then-Attorney General of Maryland and other state law enforcement officials. Appellants contended that these officials' enforcement of Maryland's assault weapons regulations was unconstitutional under the Second Amendment's right to keep and bear arms as applied to the states through the Fourteenth Amendment. They sought a declaratory judgment that the regulations prevented them from exercising their right to keep and bear arms, as well as an injunction to prohibit appellees from enforcing the statute.

In their complaint, however, appellants "acknowledge[d] that the result they seek is contrary to Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017)." J.A. 6. In Kolbe, we upheld against a constitutional challenge the very same Maryland statute at issue here insofar as it applied to "assault long guns and those copycat weapons that are rifles and shotguns." Kolbe, 849 F.3d at 122 n.2. Our en banc opinion rested on two distinct grounds. We first concluded that the assault weapons at issue were "not constitutionally protected arms." Id. at 130 (emphasis omitted). We then found that, even assuming the Second Amendment reached such weapons, the Maryland regulations survived intermediate scrutiny. Id.

In the instant case, appellees answered the complaint by citing Kolbe and arguing that the suit should be dismissed for failure to state a claim. The district court agreed and dismissed the case on March 3, 2021. It noted that Kolbe controlled and agreed with appellants' concession that the court "ha[d] no discretion but to dismiss [their] complaint." J.A. 42. Appellants timely appealed. Their brief focused on the statute's regulation of semiautomatic assault rifles, as opposed to the parts of the statute targeting semiautomatic assault pistols and shotguns.

We affirmed the district court in a per curiam opinion on September 14, 2021. We too noted that appellants had conceded their argument was "squarely foreclosed" by Kolbe, and we observed that a panel of our court is "not authorized to reconsider an en banc holding." Bianchi v. Frosh, 858 F. App'x 645, 646 (4th Cir. 2021) (internal quotation marks omitted).

Appellants petitioned the Supreme Court for writ of certiorari on December 16, 2021, arguing that our en banc decision in Kolbe should be overturned. See Petition for Writ of Certiorari, Bianchi v. Frosh, 142 S. Ct. 2898 (2022) (mem.) (No. 21-902). Appellees responded at the Court's request. See id.

On June 23, 2022, before ruling on the cert petition, the Supreme Court decided New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). In Bruen, the Court

disavowed as "one step too many" the two-step framework that our court used in Kolbe and that other federal circuit courts had nearly universally employed to assess Second Amendment claims in the wake of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Bruen, 597 U.S. at 19, 142 S.Ct. 2111. Although "[s]tep one of the predominant framework"—which was "rooted in the Second Amendment's text, as informed by history"—was "broadly consistent with Heller," the Court emphasized that the "means-end scrutiny" at the second step was improper. Id. Because "the Second Amendment ... codified a pre-existing right," courts were not to engage in interest balancing to determine whether a challenged regulation was constitutionally permissible. Id. at 20, 142 S.Ct. 2111 (quoting Heller, 554 U.S. at 592, 128 S.Ct. 2783). Instead, we were tasked with discerning the historical scope of the right and parsing whether the challenged regulation was consistent with it. Id. at 22-24, 142 S.Ct. 2111.

A week after Bruen was decided, the Supreme Court granted appellants' petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Bruen. See Bianchi v. Frosh, 142 S. Ct. at 2898-99. We ordered the parties to provide supplemental briefing, and a panel of this court heard oral argument on December 6, 2022. Before an opinion issued, however, our court voted to rehear the case en banc. We received additional supplemental briefing from the parties, and heard oral argument as a full court on March 20, 2024. Now, with the benefit of Bruen, we can proceed to decide this case.

II.

The Second Amendment instructs, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. This single sentence provides us with a lofty command, but little concrete guidance. In the past two decades, the Supreme Court has stepped in to provide this guidance, offering a methodological framework by which to structure our inquiry.

The development of this framework began with District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In Heller, the Supreme Court held that the Second Amendment safeguards the right to possess a firearm within one's home for self-defense. Id. at 635, 128 S.Ct. 2783. To reach that conclusion, the Court distilled the Second Amendment into its constituent parts, engaged in linguistic and historical analysis to interpret the original meaning of each, and determined that the Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Id. at 592, 128 S.Ct. 2783. The Court recognized that the Amendment "codified a pre-existing right" to keep and bear arms, id., which, at the time of the nation's founding, was understood by Americans to be a "right of self-preservation," id. at 595, 128 S.Ct. 2783 (quoting 2 Blackstone's Commentaries: With Notes of Reference 145 n.42 (St. George Tucker ed. 1803) [hereinafter Tucker's Blackstone]). The Court therefore found that "self-defense" is "the central component of the right." Id. at 599, 128 S.Ct. 2783. In rejecting the "argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment," the Court in Heller stated that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Id. at 582, 128 S.Ct. 2783. The Court clarified this statement later in the opinion, where it emphasized that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Id. at 626, 128 S.Ct. 2783.

There, the Court explained that the Second Amendment does not guarantee "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. Indeed, the Court found it would be "startling" to read the Second Amendment such that "the National Firearms Act's restrictions on machineguns... might be unconstitutional." Id. at 624, 128 S.Ct. 2783. Thus, the Court acknowledged that it was not in serious dispute that "weapons that are most useful in military service—M-16 rifles and the like—may be banned." Id. at 627, 128 S.Ct. 2783.

The Court recognized an additional limitation on the types of arms that the Second Amendment protects. It interpreted the holding of a previous Second Amendment decision, United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), to stand for the proposition "that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Heller, 554 U.S. at 625, 128 S.Ct. 2783. In other words, "dangerous and unusual weapons" that are not "in common use" can be prohibited. Id. at 627, 128 S.Ct. 2783.

In the wake of Heller's recognition of the individual right to keep and bear arms and its limitations, circuit courts across the nation—including ours—interpreted Heller to permit a means-end approach for assessing the constitutionality of firearms regulations. See, e.g., Kolbe, 849 F.3d at 133; N.Y. State Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242, 254 & n.49 (2d Cir. 2015); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng'rs, 788 F.3d 1318, 1322 (11th Cir. 2015). In evaluating such regulations against Second Amendment challenges, a court would first inquire "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." Kolbe, 849 F.3d at 133. If the challenged law did so, the court would then apply either intermediate or strict scrutiny, "depend[ing] on the nature of the conduct being regulated and the degree to which the challenged law burdens the right." Id.

As this approach percolated in the lower courts, the Supreme Court's subsequent Second Amendment opinions did little to alter the status quo. In McDonald v. City of Chicago , the Court held that "the Second Amendment right is fully applicable to the States," but otherwise endorsed Heller as is. 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). And in Caetano v. Massachusetts , a per curiam Court reaffirmed two aspects of Heller: that "the Second Amendment extends ... to ... arms ... that were not in existence at the time of the founding"; and that the Second Amendment may protect arms beyond "weapons useful in warfare." 577 U.S. 411, 412, 136 S.Ct. 1027, 194 L.Ed.2d 99 (2016) (internal quotation marks omitted) (quoting Heller, 554 U.S. at 582, 128 S.Ct. 2783).

Then came Bruen. Rejecting the means-end approach of the lower courts, the Bruen Court set out a two-step methodology oriented towards text, history, and tradition. Under this approach, a court first looks to the text of the Second Amendment

to see if it encompasses the desired conduct at issue. 597 U.S. at 24, 142 S.Ct. 2111. If the text does not extend to the desired conduct, that conduct falls outside the ambit of the Second Amendment, and the government may regulate it. But if a court finds that the text does encapsulate the desired conduct, the analysis moves to the second step, where the burden shifts to the government to "justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Id. Only if such consistency is shown can a court conclude that the regulation is constitutionally permissible. Id.

The Court in Bruen found that the New York regulation at issue, which required an individual to "demonstrate a special need for self-protection distinguishable from that of the general community" before he could carry a handgun outside of his home, did not satisfy this history-and-tradition test. Id. at 70, 142 S.Ct. 2111. The Court first determined that the plaintiffs' "proposed course of conduct—carrying handguns publicly for self-defense" readily fell within the plain text of the Second Amendment. Id. at 32, 142 S.Ct. 2111. Thus, the burden shifted to New York to show that its regulation was "consistent with this Nation's historical tradition of firearm regulation." Id. at 33-34, 142 S.Ct. 2111.

After examining multiple historical regulations on the public carry of weapons, the Bruen Court determined that none of them was sufficiently analogous to the regulation at issue. See id. at 38-70, 142 S.Ct. 2111. Specifically, the Court held that the New York regulation was unconstitutional because, "[a]part from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense," nor have these governments "required law-abiding, responsible citizens to demonstrate a special need ... in order to carry arms in public." Id. at 70, 142 S.Ct. 2111 (internal quotation marks omitted).

In so holding, the Bruen Court was clear that it was "apply[ing]" the "test that [it] set forth in Heller." Id. at 26, 142 S.Ct. 2111. It reiterated that "the right secured by the Second Amendment is not unlimited," and, as such, it is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 21, 142 S.Ct. 2111 (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783). Justice Alito further elaborated on this point in his concurrence, explaining that the majority's "holding decides nothing... about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald... about restrictions that may be imposed on the possession or carrying of guns." Id. at 72, 142 S.Ct. 2111 (Alito, J., concurring).

III.

With this background in mind, we proceed to our analysis of the assault weapons regulations at issue. We hold that the covered firearms are not within the scope of the constitutional right to keep and bear arms for self-defense, and thus Maryland's regulation of them can peaceably coexist with the Second Amendment. Moreover, even if the text of the Second Amendment were read to encompass the covered firearms, the statutory provisions at issue would nonetheless be constitutional. Our nation has a strong tradition of regulating excessively dangerous weapons once it becomes clear that they are exacting an inordinate toll on public safety and societal wellbeing.

This conclusion that the Maryland regulation is consistent with the Constitution is not some sort of edict to the rest of the states, obligating them to follow suit.

States may take a variety of approaches to address the nation's mass shooting crisis beyond the regulation of firearms, such as expanding mental health services or bolstering law enforcement's capacity to respond. We make no comment on the effectiveness of these or any other measures. We simply recognize that Maryland acted well within the scope of its own police powers in responding to the demands of its own citizens. Nothing in our opinion foists the values of Maryland upon, say, South Carolina, or those of South Carolina upon Maryland. We choose to honor the worthy virtues of federalism and democracy, not to stifle them. To do otherwise would unduly impede the workings of legislative bodies across our country as they struggle to meet the challenges of today and tomorrow.

A.

Pursuant to Bruen, we begin by asking whether the "plain text" of the Second Amendment guarantees the individual right to possess the assault weapons covered by the Maryland statute. 597 U.S. at 24, 142 S.Ct. 2111. At first blush, it may appear that these assault weapons fit comfortably within the term "arms" as used in the Second Amendment.

We know, however, that text cannot be read in a vacuum. See Biden v. Nebraska, 600 U.S. 477, 511, 143 S.Ct. 2355, 216 L.Ed.2d 1063 (2023) (Barrett, J., concurring) ("To strip a word from its context is to strip that word of its meaning."). Heller and Bruen confirmed the importance of reading the Amendment in context by repeatedly emphasizing that "it has always been widely understood that the Second Amendment ... codified a pre-existing right." Bruen, 597 U.S. at 20, 142 S.Ct. 2111 (quoting Heller, 554 U.S. at 592, 128 S.Ct. 2783); see also United States v. Price, No. 22-4609, 111 F.4th 392, 398-401 (4th Cir. Aug. 6, 2024) (majority opinion). In other words, the Second Amendment codified "the right to keep and bear arms": a specific entitlement with a particular meaning in the ratifying public's consciousness, with baked-in prerogatives and qualifications alike. See Bruen, 597 U.S. at 21, 142 S.Ct. 2111 ("[L]ike most rights, the right secured by the Second Amendment is not unlimited." (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783)).

This understanding of the text of the Second Amendment is consistent with the way we read other constitutional provisions. Take the First Amendment. See id. at 24-25, 142 S.Ct. 2111 (analogizing the Court's Second Amendment framework to "how we protect other constitutional rights" like "the freedom of speech in the First Amendment"). That provision establishes that "Congress shall make no law... abridging the freedom of speech." U.S. Const. amend. I. Reading the text devoid of its historical context, one might conclude that the Constitution prohibits governmental restrictions on libel, incitement, true threats, fighting words, or falsely shouting fire in a crowded theater. Such activity is, after all, "speech." But effective constitutional interpretation requires a recognition that the First Amendment was enacted against a backdrop of laws and societal understandings that circumscribed these types of communications because they did not advance the underlying purposes that the right to free speech was codified to protect. See United States v. Rahimi, ___ U.S. ___, 144 S. Ct. 1889, 1911-12, ___ L.Ed.2d ___ (2024) (Kavanaugh, J., concurring); Heller, 554 U.S. at 595, 128 S.Ct. 2783 ("[W]e do not read the First Amendment to protect the right of citizens to speak for any purpose."); Bruen, 597 U.S. at 15, 142 S.Ct. 2111 (same) (citing U.S. Const. amend. I). Thus,

inherent in the Speech Clause is the limitation that certain types of activity that fall within a literal reading of the word "speech" are not protected by the free speech right enshrined in the First Amendment.

The upshot is that the text of the Second Amendment, like the text of other constitutional provisions, must be interpreted against its historical and legal backdrop. See Bruen, 597 U.S. at 25, 142 S.Ct. 2111 (endorsing "reliance on history to inform the meaning of constitutional text— especially text meant to codify a pre-existing right"). What we must do under Bruen, then, is assess the historical scope of the right to keep and bear arms to determine whether the text of the Second Amendment encompasses the right to possess the assault weapons at issue. See Price, No. 22-4609, 111 F.4th at 401 (majority opinion) ("[W]e can only properly apply step one of the Bruen framework by looking to the historical scope of the Second Amendment right.").

B.

This was the question we earlier faced as an en banc court in Kolbe. Our primary holding in that case was that the assault weapons regulated by the statute were not within the scope of the Second Amendment. 849 F.3d at 136. Specifically, we resolved the case by finding that the covered weapons were "'like' 'M-16 rifles', i.e., 'weapons that are most useful in military service,' and thus outside the ambit of the Second Amendment." Id. (quoting Heller, 554 U.S. at 627, 128 S.Ct. 2783). It was only after "we affirm[ed] the district court's award of summary judgment in favor of the State" on those grounds that we turned to finding, "[i]n the alternative," that the assault weapons regulations survived intermediate scrutiny. Id. at 137-38.

It is true that Kolbe was decided before Bruen. But contrary to appellants' claims, Bruen did not abrogate Kolbe's entire holding. While the Court in Bruen held that the means-end balancing we conducted in our secondary, alternative analysis was "one step too many," it did not disturb our principal holding that the covered assault weapons were outside the ambit of the individual right to keep and bear arms. Bruen, 597 U.S. at 19, 142 S.Ct. 2111. The Court was careful to note that only "the Courts of Appeals' second step" was "inconsistent with Heller's historical approach and its rejection of means-end scrutiny." Id. at 24, 142 S.Ct. 2111. On the other hand, when it came to our primary approach, the Bruen Court did not reject this type of analysis, finding that it was "broadly consistent with Heller." Id. at 19, 142 S.Ct. 2111; see also Hanson v. District of Columbia, 671 F. Supp. 3d 1, 8 (D.D.C. 2023) ("Bruen did not disturb the analysis Courts of Appeals conducted under the first step of their framework."). We therefore respectfully reaffirm the conclusion we reached in Kolbe that the covered weapons "are not constitutionally protected arms." 849 F.3d at 130 (emphasis omitted).

C.

The validity of this conclusion becomes clear when viewed in light of the purpose of the individual right to keep and bear arms. Heller established that "the central component" of the individual right codified by the Second Amendment was "self-defense." 554 U.S. at 599, 128 S.Ct. 2783; see also Bruen, 597 U.S. at 32, 142 S.Ct. 2111; McDonald, 561 U.S. at 767, 130 S.Ct. 3020. The common-law right to self-defense, in turn, was understood by the founding generation to mean the right of "a citizen to 'repel force by force' when 'the intervention of society in his behalf, may be too

late to prevent an injury.'" Heller, 554 U.S. at 595, 128 S.Ct. 2783 (quoting 2 Tucker's Blackstone 145) (internal alteration omitted). The pre-existing right codified by the Second Amendment is thus about amplifying the power of individual citizens to project force greater than they can muster with their own bodies so that they may protect themselves when government cannot.

Limitations on this right to self-defense have been recognized in common law since before our nation's founding. One involves the necessity of imminence. A citizen cannot launch a preemptive assault against another when he faces solely the possibility of some threat hours or days away, or when he is seeking revenge for a harm already wrought by another. See 4 William Blackstone, Commentaries of the Laws of England 184 (1769) [hereinafter Blackstone] ("This right of natural defence does not imply a right of attacking: for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice."). Rather, force may only be used in self-defense when reasonably necessary. See id. (stating "the right of preventive defence" may only be exercised "when certain and immediate suffering would be the consequence of waiting for the assistance of the law"). A second limitation circumscribes who can be the object of force used in self-defense. A citizen generally cannot use force against an innocent bystander to protect himself from an assailant, such as by turning the bystander into a human shield. See id. at 30 "([T]hough a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person; this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent."). Yet another limitation is on the amount of force that may be used. Deadly force, for example, generally may not be used except against a person who poses an impending threat of death or serious bodily harm. See id. at 185 ("The party assaulted must therefore flee ... as far as the fierceness of the assault will permit him: for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm; and then in his defence he may kill his assailant instantly.").

The above limitations and qualifications do not undermine the importance of self-defense when one's person is imperiled. And the exact scope of the self-defense right has ebbed and flowed over time and across jurisdictions. Compare id. (requiring where possible a defender flee before using deadly force), with Tex. Penal Code § 9.31 (permitting a defender to stand his ground). But meaningful limits on the right have always existed. Our legal tradition has never seriously contemplated that a citizen may employ force against another whenever he chooses upon mere speculation that such person poses a prospective threat.

As these limitations on the right to self-defense demonstrate, there are societal interests that can prevail over the right to protect oneself with force. The imminence requirement, for example, ensures that the justice system, not the individual, is the preferred user of force to restrain unlawful action when that system has the time and capacity to act. See 4 Blackstone 184. And restrictions on how much force may be employed, and against whom force may be used, clarify that it is not just the rights to life and liberty of the defender that matter, but also those of other members of society. Else, how could we have any society at all?

These limitations inform the historical backdrop of the right ultimately enshrined

in our Constitution: to keep and bear arms for the purpose of self-defense. Just as the right to self-defense had limitations at the time of the founding, so too did the right to keep and bear arms that enabled it. As the Supreme Court recognized in Heller, the Second Amendment "is the very product of an interest balancing by the people." 554 U.S. at 635, 128 S.Ct. 2783. In crafting the Amendment, the Framers aimed to safeguard the right to individual self-preservation while recognizing appropriate limitations —including those already inherent in the common-law right to self-defense— that permitted the maintenance of an amicable and orderly society. Thus, courts are "not [to] read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation." Id. at 595, 128 S.Ct. 2783.

One qualification recognized by Heller is on who can keep and bear arms: there are "longstanding prohibitions on the possession of firearms by felons and the mentally ill." Id. at 626, 128 S.Ct. 2783. While these individuals maintain a right to self-preservation, society has concluded that the danger that they will misuse their armament-amplified power is too great to permit possession. See Rahimi, 144 S. Ct. at 1896-97; Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) ("History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns."). Another limitation involves where arms can be carried: "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" are permissible. Heller, 554 U.S. at 626, 128 S.Ct. 2783; accord Bruen, 597 U.S. at 30, 142 S.Ct. 2111. Again, citizens in these places have no less of a right to protect themselves. But our society has deemed that giving people the capacity to use large amounts of force at a moment's notice in a sensitive place is not worth the danger that they will unlawfully deploy such force against innocent civilians or public figures there. These limitations, ultimately, reflect a careful balancing of interests between individual self-defense and public protection from excessive danger that existed within the meaning of the phrase "the right to keep and bear arms" when the Second Amendment was ratified.

For our purposes, the most relevant limitation that emerged from this consideration of individual and societal interests is upon what arms may be kept and carried. As recognized in Heller, "the Second Amendment right ... extends only to certain types of weapons"; it is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 U.S. at 623, 626, 128 S.Ct. 2783. Arms typically used by average citizens for self-defense are generally within the ambit of the Second Amendment, presumably because these arms had proven over time to effectively amplify an individual's power to protect himself without empowering him to single-handedly reign terror upon a community. See id. at 624-25, 128 S.Ct. 2783. But other weapons—variously referred to as "dangerous or unusual," e.g., 4 Blackstone 148, or "dangerous and unusual," e.g., Heller, 554 U.S. at 627, 128 S.Ct. 2783; State v. Langford, 10 N.C. 381, 383 (1824)—could be banned without infringing upon the right to bear arms, see Heller, 554 U.S. at 627, 128 S.Ct. 2783; Bruen, 597 U.S. at 47, 142 S.Ct. 2111; 4 Blackstone 148-49; Langford, 10 N.C. at 383-84. Such excessively dangerous arms were not reasonably related or proportional to the end of self-defense—but rather were better suited for offensive criminal or military purposes—and were thus understood to fall outside the reach of the right. See Heller, 554 U.S. at 627, 128 S.Ct. 2783; Nat'l Ass'n for Gun Rts. v. Lamont, 685 F. Supp. 3d 63, 102-03 (D. Conn. 2023). This dichotomy between these two types of arms is reflected in the concrete examples of exempted arms that the Supreme Court offered us in Heller. A corollary to "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons,'" 554 U.S. at 627, 128 S.Ct. 2783, is that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns," id. at 625, 128 S.Ct. 2783. Further, the Court recognized that "weapons that are most useful in military service," such as "M-16 rifles and the like," can be "banned." Id. at 627, 128 S.Ct. 2783. The Heller Court placed such weapons of crime and war in explicit contradistinction to the handgun, "the quintessential self-defense weapon," which it emphasized was squarely within the ambit of the Second Amendment. Id. at 629, 128 S.Ct. 2783.

What brings all the weapons beyond the scope of the Second Amendment together, and what separates them from the handgun, is their ability to inflict damage on a scale or in a manner disproportionate to the end of personal protection. As such, they are weapons most suitable for criminal or military use. For instance, Congress began regulating sawed-off shotguns and short-barreled rifles after they became infamously associated with "notorious Prohibition-era gangsters like Bonnie Parker and Clyde Barrow." Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38, 47 (1st Cir. 2024). These firearms "are more easily concealable than long-barreled rifles but have more destructive power than traditional handguns," making them particularly desirable to malefactors and crooks. U.S. Dep't of Just., Justice Department Announces New Rule to Address Stabilizing Braces, Accessories Used to Convert Pistols into Short-Barreled Rifles (Jan. 13, 2023); see also Carson v. State, 241 Ga. 622, 247 S.E.2d 68, 73 (1978) (upholding ban on sawed-off shotguns and noting they "are of a size such as can easily be concealed and which are adapted to and commonly used for criminal purposes"); State v. LaChapelle, 234 Neb. 458, 451 N.W.2d 689, 691 (1990) (holding states may regulate sawed-off shotguns as "a weapon which is used almost exclusively for a criminal purpose"). And the M16 was adopted by the U.S. Army as the standard-issue infantry rifle "due to its phenomenal lethality and reliability, as well as its increased ability to penetrate helmets and body armor." Lamont, 685 F. Supp. 3d at 101 (internal quotation marks omitted); see also Kolbe, 849 F.3d at 124.

We also recognize that the Supreme Court, in the handful of Second Amendment cases that it has decided, has not yet had the opportunity to clarify the full array of weaponry that falls outside the ambit of the Second Amendment. For instance, consider arms that disable an adversary over time, such as those that release slow-acting poison. An umbrella gun that fires a ricin-laced pellet, while a bearable arm, is utterly ineffective at countering imminent threats for which the right to self-defense exists because it takes hours for ricin to have a debilitating effect. See Ricin and The Umbrella Murder, CNN (Oct. 23, 2003); Ctrs. for Disease Control and Prevention, Questions and Answers About Ricin (Apr. 4, 2018). Additionally, some bearable arms deliver force so excessive for self-defense that no reasonable person could posit that the Constitution guarantees civilian access to them. See, e.g., Bevis v. City of Naperville, 85 F.4th 1175, 1198 (7th Cir. 2023) ("Everyone can also agree, we hope, that a nuclear weapon such as the ... 51-pound W54 warhead, can be reserved for the military, even though it is light enough for one person to carry."), cert. denied sub nom. Harrel v. Raoul, ___

U.S. ___, 144 S.Ct. 2491, ___ L.Ed.2d ___ (2024); see also Heller, 554 U.S. at 627, 128 S.Ct. 2783.

As should be clear, these are not the modern equivalents of weapons that were commonly possessed and employed for self-preservation by your shopkeeper, or your butcher, or your blacksmith up the road in colonial America—the disarmament of whom the Second Amendment was ratified to prevent. See Heller, 554 U.S. at 598-99, 128 S.Ct. 2783. The Second Amendment, with its "central component" of "individual self-defense," is not concerned with ensuring citizens have access to military-grade or gangster-style weapons. Bruen, 597 U.S. at 29, 142 S.Ct. 2111 (emphasis omitted). In short, then, while the Second Amendment jealously safeguards the right to possess weapons that are most appropriate and typically used for self-defense, it emphatically does not stretch to encompass excessively dangerous weapons ill-suited and disproportionate to such a purpose.

Our friends in dissent argue that there is not simply a right to individual self-defense but to "collective" self-defense. Dissenting Op. at 492-93. This view has several problems. One, it contradicts both the purpose and language of Heller and Bruen quoted in the preceding paragraph. The second problem is one of self-contradiction. The dissent announces a right to "communal self-defense" and then proceeds directly to disregard the community's judgment as expressed in the Maryland statute as to how communal self-defense can be most effectively safeguarded. The third problem is the dissent's conversion of a right of self-defense to a right to possess arms whose uses on offense are all too prominent and apparent. Either alone or in combination these hurdles underscore the danger of expanding appellants' right far beyond the careful exposition of the Second Amendment that Heller and Bruen articulated.

D.

Having elucidated our understanding of the Second Amendment's text in its historical context, we turn to the Maryland regulations under challenge in the present case. Our analysis confirms that the covered weapons are not within the ambit of the "right to keep and bear arms" as codified within the plain text of the Second Amendment.

As an initial matter, we note that appellants have brought a facial challenge to the assault weapons regulations. The Supreme Court has instructed that facial challenges are "disfavored" because they "often rest on speculation," "short circuit the democratic process," and "run contrary to the fundamental principle of judicial restraint." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). A facial challenge is "the 'most difficult challenge to mount successfully.'" Rahimi, 144 S. Ct. at 1898 (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)); see also id. at 1907 (Gorsuch, J., concurring). "To succeed in a typical facial attack, [appellants] would have to establish 'that no set of circumstances exists under which [the statute at issue] would be valid,' or that the statute lacks any 'plainly legitimate sweep.'" United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. 2095; Washington v. Glucksberg, 521 U.S. 702, 740 n.7, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Stevens, J., concurring in judgments)).

Appellants have not met this high bar. Many of the firearms regulated by the Maryland statute are "dangerous and unusual weapons" that are not "in common

use today for self-defense." Bruen, 597 U.S. at 21, 32, 142 S.Ct. 2111 (internal quotation marks omitted). Rather, they are weapons "most useful in military service" with firepower far exceeding the needs of the typical self-defense situation. Heller, 554 U.S. at 627, 128 S.Ct. 2783. These weapons therefore do not fit within the Second Amendment's ambit and thus "may be banned." Id.

Consider, for example, the Barrett .50 caliber semiautomatic sniper rifle, one of the forty-five covered long guns. See Md. Code, Pub. Safety § 5-101(r)(2)(ix). This rifle fires bullets powerful enough to "to disable or destroy military targets such as armored personnel carriers, radar dishes, communications vehicles, missiles, aircraft, bulk fuel and ammunition storage sites." Am. Bar Ass'n, Bar Ass'n of S.F. Special Comm. on Gun Violence, Restriction of Sale of .50 Caliber Sniper Weapons (Aug. 7, 2005). Heralded as "[t]he most powerful sniper rifle in the U.S. military," the Barrett.50 cal. "is capable of long range destruction of military targets at distances exceeding a mile ... with the power of a rocket or mortar but with the precision of a sniper rifle." Id.; Caleb Larson, Barrett M82: The U.S. Military's Most Powerful Sniper Rifle, Real Clear Defense (Nov. 30, 2020). This extraordinary combination of power and precision has helped Mexican cartels outgun police, with the Barrett rifle becoming "a very symbolic weapon in the narco world" that "shows you're on the top of the game." Diego Oré and Drazen Jorgic, 'Weapon of War': The U.S. Rifle Loved by Drug Cartels and Feared by Mexican Police, Reuters (Aug. 6, 2021).

Appellants made no effort to present evidence that this sniper rifle is "in common use today for self-defense" and not a "dangerous and unusual" weapon outside of the Second Amendment's ambit. Bruen, 597 U.S. at 21, 32, 142 S.Ct. 2111. How could they? Common sense dictates that restricting the possession of this type of weapon is consistent with the original meaning of the Second Amendment as elucidated in Heller and Bruen. With its very limited ability to serve the defensive needs of the average citizen yet its extraordinary capability to advance the offensive purposes of criminals, terrorists, and soldiers, the Barrett .50 caliber sniper rifle is exactly the type of firearm that is "most useful in military service" and "may be banned" consistent with the Second Amendment. Heller, 554 U.S. at 627, 128 S.Ct. 2783.

Nor do appellants seek to overcome this barrier with respect to many other long guns regulated by the statute, such as the Striker-12 and other street sweeper shotguns. See Md. Code, Pub. Safety § 5-101(r)(2)(xxxviii)-(xxxix). These shotguns each have a twelve-round revolving cylinder most useful for riot control and military combat, and their possession has been highly restricted by the federal government under the National Firearms Act for over three decades. See ATF Rul. 94-2 (regulating Striker-12 and street sweeper shotguns under the "destructive device" provision of 26 U.S.C. § 5845(f)(2)); United States v. White, 2017 WL 11528245, at *3 (W.D. Mo. Oct. 13, 2017). Perhaps recognizing the steep uphill climb that such an argument would face, appellants did not devote even a page of their complaint or briefing to posit how these specific prohibitions are unconstitutional.

In short, appellants have failed to show that each firearm regulated by the Maryland statute is within the ambit of the Second Amendment. And so the broad relief their facial challenge seeks is not ours to grant.

E.

We do recognize, however, that the parties thoroughly briefed the issue of whether

the Second Amendment protects a citizen's ability to purchase and possess an AR-15, which appellants refer to as the "paradigmatic semiautomatic rifle targeted by 'assault weapons' laws." Appellants' Suppl. Opening Br. 25. This is also the question we primarily considered at our en banc oral argument. Because it has been fully briefed and considered after a remand from the Supreme Court, we find the question of whether the AR-15 is within the ambit of the Second Amendment appropriate to address here. Not to address it would be to bypass the very heart of the dispute in this proceeding.

1.

The intertwined origins of the AR-15 and its military version, the M16, show that these weapons were intended for offensive combat applications rather than individual self-defense. See Lamont, 685 F. Supp. 3d at 101. In the late 1950s, the U.S. Army was seeking an improved infantry weapon. General Willard G. Wyman called upon firearms manufacturers to develop a lightweight yet lethal combat rifle that would penetrate a steel helmet at 500 yards. See Dallas T. Durham, The M-16: Tradition, Innovation, and Controversy, U.S. Army Command & Gen. Staff Coll. (2021). Armalite Corporation responded by developing the AR-15, which originally was a selective-fire rifle with both semiautomatic and automatic firing capability. See Lamont, 685 F. Supp. 3d at 74.

The AR-15 quickly gained popularity with the U.S. military, which, by the end of 1963, had purchased over 100,000 AR-15s and had begun to combat test them in Vietnam. O.P. Bruno et al., M16 Rifle Sys.: Reliability and Quality Assurance Eval., U.S. Army Materiel Command Aberdeen Rsrch. and Dev. Ctr., at App. II-1-II-2 (July 1968). Early testing "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," the U.S. military's standard-issue rifle during the late 1950s. See Kolbe, 849 F.3d at 124. Further testing by the military and CIA concluded that the AR-15 was "superior in virtually all respects to the — a. M-1 rifle, b. M-1 and M-2 Carbines, c. Thompson Sub-machine gun and d. Browning Automatic rifle." Advanced Rsch. Projects Agency, Field Test Rep., AR-15 Armalite Rifle (Aug. 20, 1962). The AR-15 also became popular in Vietnam, where the military found that it was a "more desirable weapon" than any of the alternative military rifles, carbines, or submachine guns. Advanced Rsch. Projects Agency, Rep. of Task No. 13A, Test of Armalite Rifle, AR-15, at 4 (July 31, 1962). The military designated the AR-15 rifle the "M16" and adopted it as the standard-issue infantry rifle in the late 1960s. See M16 Rifle Sys., at App. II-4; Encyc. Britannica, M16 Rifle (July 15, 2024).

During this same period, Colt, which had obtained the trademark and patents for the AR-15 from Armalite, created a semiautomatic version of the rifle for the civilian market. See Lamont, 685 F. Supp. 3d at 74. In 1977, the patents to the AR-15 expired, and a number of manufacturers started selling semiautomatic rifles built on the AR-15 platform. See Emily Witt, How the AR-15 Became an American Brand, New Yorker (Sept. 27, 2023); Greg Myre, A Brief History of the AR-15, Nat'l Pub. Radio (Feb. 28, 2018).

The civilian versions of the AR-15 have not strayed far from the rifle's military origin. The AR-15 continues to use the same internal piston firing system and the same ammunition as the M16. See Bevis, 85 F.4th at 1195-96 & n.9; Adams Arms, Inc. v. Sig Sauer, Inc., 2010 WL 3119777, at *1 (M.D. Fla. Aug. 2, 2010). Its bullets

leave the muzzle at a similar velocity of around 3000 feet per second, have a similar effective area target range of up to 875 yards, and deliver a similar amount of kinetic energy upon impact. See Bevis, 85 F.4th at 1196. Contemporary versions of the AR-15 and M16 have both incorporated additional combat-functional features. These include a flash suppressor that conceals the shooter's position and facilitates night combat operations, and a pistol grip that enables fast reloading and accuracy during sustained firing. See Kolbe, 849 F.3d at 125; Lamont, 685 F. Supp. 3d at 75; Rupp v. Bonta, ___ F.Supp.3d ___, ___, 2024 WL 1142061, at *12 (C.D. Cal. Mar. 15, 2024). Most versions of the AR-15, like the M16, use detachable 20-round or 30-round magazines that increase the weapon's effective rate of fire and are most useful in prolonged firefights with enemy combatants. See N.Y. State Rifle & Pistol Ass'n v. Cuomo, 990 F. Supp. 2d 349, 365 (W.D.N.Y. 2013). Both weapons are also compatible with up to 100-round magazines. See Kolbe, 849 F.3d at 125. Other combat-functional features that the AR-15 and M16 share include a threaded barrel for the affixing of a flash suppressor, recoil compensator, or silencer; a barrel shroud to protect the shooter's hands from excessive heat during sustained firing; and a rail integration system for the mounting of sights, scopes, slings, flashlights, lasers, foregrips, bipods, bayonets, and under-barrel grenade launchers or shotguns. See id. at 137; U.S. Army FM 3-22.9, at 2-7 (Aug. 12, 2008).

The firepower of the AR-15 and M16 is a key component of their "phenomenal lethality." Lamont, 685 F. Supp. 3d at 101. Built to generate "maximum wound effect" and to pierce helmets and body armor, id. at 100, AR-15 bullets discharge at around "three times the velocity of a typical handgun," Rupp, ___ F.Supp.3d at ___, 2024 WL 1142061, at *11. These higher velocity rounds "hit fast and penetrate deep into the body," creating severe damage. Bevis v. City of Naperville, 657 F. Supp. 3d 1052, 1073 (N.D. Ill. 2023). When a bullet fired from an AR-15 impacts human tissue, it typically "yaws" or turns sideways. Del. State Sportsmen's Ass'n v. Del. Dep't of Safety & Homeland Sec., 664 F. Supp. 3d 584, 599 (D. Del. 2023). As it passes through the body, the rotated bullet creates a large, "temporary cavity" or "blast wave" that can be "up to 11-12.5 times larger than the bullet itself," id. (internal quotation marks omitted)—an effect known as "cavitation," Capen v. Campbell, ___ F.Supp.3d ___, ___, 2023 WL 8851005, at *15 (D. Mass. Dec. 21, 2023). So, while a "typical 9mm [bullet] wound to the liver" from a commonly used handgun like the Glock 19 "will produce a pathway of tissue destruction in the order of one inch to two inches," an AR-15 wound "will literally pulverize the liver, perhaps best described as dropping a watermelon onto concrete." Id. (internal alterations omitted). The "catastrophic" damage caused by AR-15 rounds means that the injuries they leave in their wake—such as "multiple organs shattered," bones "exploded," and "soft tissue absolutely destroyed"—"often cannot be repaired" by trauma surgeons. Del. State Sportsmen's Ass'n, 664 F. Supp. 3d at 599-600 (internal quotation marks omitted); see also Kolbe, 849 F.3d at 124; N. Kirkpatrick et al., The Blast Effect: This Is How Bullets from an AR-15 Blow the Body Apart, Wash. Post (Mar. 27, 2023).

Another key aspect of the destructiveness of the AR-15 and M16 is their pairing of high muzzle velocity with a comparative lack of recoil. AR-15s can fire rounds "in rapid succession on a precise target, even while standing or moving, because a shooter's position is relatively unaffected by the recoil of each shot." Capen, ___ F.Supp.3d

at ___, 2023 WL 8851005, at *15. This lower recoil makes the AR-15 "uniquely dangerous" compared to other high-powered rifles, which tend to have greater recoil that "necessarily disrupts follow-on shots." Id.

The primary difference between the M16 and AR-15—the M16's capacity for automatic fire, burst fire, or both, depending on the model—pales in significance compared to the plethora of combat-functional features that makes the two weapons so similar. The U.S. Army Field Manual instructs that semiautomatic fire is "[t]he most important firing technique during fast-moving, modern combat" because it "is the most accurate technique of placing a large volume of fire on ... multiple, or moving targets." U.S. Army FM 3-22.9, at 7-8 (Aug. 12, 2008); see also Rupp, ___ F.Supp.3d at ___, 2024 WL 1142061, at *10. Indeed, a decorated former U.S. Navy SEAL stated that he "[n]ever once fired full auto in combat" during a decade of special operations combat deployments, including the 2011 Osama Bin Laden raid. @mchooyah, Twitter (Oct. 3, 2017, 5:04 PM), https://perma.cc/7JXA-YK97. Moreover, the AR-15's rate of fire can "be easily converted to ... mimic military-grade machine guns" with devices like bump stocks, trigger cranks, and binary triggers. Bevis, 657 F. Supp. 3d at 1074; see also Del. State Sportsmen's Ass'n, 664 F. Supp. 3d at 600. In Garland v. Cargill , the Court recently emphasized that "[s]hooters have devised techniques for firing semiautomatic firearms at rates approaching those of some machine guns." 602 U.S. 406, 411, 144 S.Ct. 1613, 219 L.Ed.2d 151 (2024); see also id. at 429, 144 S.Ct. 1613 (Alito, J., concurring) ("[A] semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun."). Additionally, nothing in Cargill evinced any affirmative endorsement of bump stocks. The case rested on a close reading of statutory text and regulatory deviation from it, which is not before us here. See id. at 415, 144 S.Ct. 1613 (majority opinion).

Between its firepower, accuracy, and modifiability, the "net effect" of the AR-15's "military combat features is a capability for lethality." Kolbe, 849 F.3d at 144. All this is a far cry from any notion of civilian self-defense.

2.

Illicit uses of the AR-15 have demonstrated just how much destruction the weapon can cause in the wrong hands. When used for criminal purposes, the AR-15 and other assault rifles "result in more numerous wounds, more serious wounds, and more victims." Id. at 140 (quoting Cuomo, 804 F.3d at 262). AR-15s are disproportionately used in mass shootings: one recent examination found that although AR-platform rifles constituted about 5% of the firearms in the United States, they were used in 25% of mass shootings. Rupp, ___ F.Supp.3d at ___, 2024 WL 1142061, at *11. Moreover, in a grim testament to the gun's deadliness, mass shootings are over 60% more deadly when an AR-15 or similar assault rifle is used. See id. ("[O]ver the past ten years, there have been 12.9 fatalities per shooting when an assault rifle is used in a mass shooting, as opposed to 7.8 fatalities per shooting where an assault rifle is not used."). Four of every five "mass shootings that resulted in more than 24 deaths involved the use of assault rifles," id., as did every single mass shooting involving more than 40 deaths, see The Violence Project, Mass Shooter Database (database updated Jan. 2024). In short, the AR-15 and other assault rifles are the preferred weapons for those bent on wreaking death and destruction upon innocent civilians.

Their utility for mass killing has made the AR-15 and similar assault rifles the

most popular arms for terrorist attacks in the United States. The perpetrator of the Pulse nightclub shooting—which was "the deadliest terrorist attack in the United States since September 11, 2001"—used an assault rifle similar to the AR-15 that is covered by the "copycat weapon" provision of Maryland's assault weapons regulation. See Frank Straub et al., Rescue, Response, and Resilience, U.S. Dep't of Just. Cmty. Oriented Policing Servs., at 1, 7 (2017). With his rifle in hand, the ISIS-aligned perpetrator walked into the Orlando nightclub and fired approximately 200 rounds in five minutes. Id. at 18, 23-24. Despite a police detective being on scene who called in the shooting as soon as it began, and despite the SWAT team arriving six minutes later, the terrorist was able to shoot 102 innocent people, killing 49 of them. Id. at x, 77. Police found so many people lying shot and bleeding on the dance floor that one officer—in a desperate attempt to triage casualties and save lives—shouted, "if you're alive, raise your hand." Id. at 22. Another responding officer who had served three combat tours in the U.S. military described his experience in the nightclub: "I was a platoon sergeant again. I stepped out of being a cop and back into being a platoon sergeant. We were in a war zone." Id. at 21.

Indeed, AR-15 or AK-47 type assault rifles covered by the Maryland regulations have been used in every major terrorist attack on U.S. soil in the past decade: the 2015 San Bernardino office attack (14 victims killed, 24 injured), the 2016 Pulse nightclub shooting (49 victims killed, 58 injured), the 2018 Pittsburgh synagogue shooting (11 victims killed, 6 injured), the 2019 El Paso Walmart shooting (23 victims killed, 22 injured), and the 2022 Buffalo supermarket shooting (10 victims killed, 3 injured). See id. at vii, 7; U.S. Dep't of Just. Cmty. Oriented Policing Servs., Bringing Calm to Chaos: A Critical Incident Rev. of the San Bernardino Pub. Safety Response, at xiii, 39 (2016); Campbell Robertson et al., 11 Killed in Synagogue Massacre; Suspect Charged With 29 Counts, N.Y. Times (Oct. 27, 2018); Kayla McCormick & Phil Helsel, El Paso Walmart Mass Shooter Sentenced to 90 Consecutive Life Terms, NBC News (July 7, 2023); Emily Mae Czachor, Gunman in Buffalo Supermarket Shooting Pleads Guilty, CBS News (Nov. 28, 2022). As modern information technologies have increasingly shifted the terrorism threat towards "lone offenders" who are often driven to extremism "by a mix of conspiracy theories; personalized grievances; and enduring racial, ethnic, religious, and anti-government ideologies," AR-15s will likely remain a crucial instrument of terrorism in the United States so long as they are widely available. U.S. Dep't of Homeland Sec., Homeland Threat Assessment 2024 at v, 3 (Sept. 14, 2023).

In addition to being the weapons of choice for mass killing and terrorism, AR-15s and similar assault rifles are "uniquely dangerous to law enforcement." Capen, ___ F.Supp.3d at ___, 2023 WL 8851005, at *13. These firearms place law enforcement officers "at particular risk" because "their high firepower" causes their bullets to readily penetrate police body armor. Heller v. District of Columbia, 670 F.3d 1244, 1263 (D.C. Cir. 2011); see also Del. State Sportsmen's Ass'n, 664 F. Supp. 3d at 600; Lamont, 685 F. Supp. 3d at 98-99. AR-15s also "allow criminals to effectively engage law enforcement officers from great distances," giving them a "military-style advantage." Kolbe, 849 F.3d at 127.

The impact of these dangers is starkly displayed in the statistics of slain law enforcement officers. Despite the relative rarity of assault weapons, studies have estimated that they have been used to gun down between 13% to 20% of those officers

killed in the line of duty. See Lamont, 685 F. Supp. 3d at 99. Moreover, assault rifles have been used in the deadliest recent attacks on law enforcement officers, such as the 2016 killing of five Dallas police officers and the 2024 murder of four officers, including three U.S. Marshals task force members, in Charlotte. See Sopan Deb et al., 8 Officers Are Shot, 4 Fatally, While Serving Warrant in Charlotte, N.Y. Times (Apr. 29, 2024).

As criminals and terrorists have increasingly turned to AR-15s and similar assault rifles, there have been "multiple incidents in which [they] outgun police." Del. State Sportsmen's Ass'n, 664 F. Supp. 3d at 600. One of these instances was again the Pulse nightclub terrorist attack. The detective who was on scene when the shooting began "recognized that his Sig Sauer P226 9mm handgun ... was no match for the .223 caliber rifle being fired inside the club and moved to a position that afforded him more cover in the parking lot." See Frank Straub et al., Rescue, Response, and Resilience, at 16. The first police officers on scene at the Uvalde, Texas elementary school shooting that left 19 students and two teachers dead similarly "concluded they were outgunned[, a]nd that they could die" after identifying the shooter's gun as an "AR," and thus "opted to wait for the arrival of a Border Patrol SWAT team ... based more than 60 miles away." Zach Despart, "He Has a Battle Rifle": Police Feared Uvalde Gunman's AR-15, Tex. Tribune (Mar. 20, 2023). Time after time, the sheer power of AR-15 style rifles has contributed to hesitation by police in confronting mass shooters, exacerbating the bloodshed and trauma that result. See, e.g., Mirna Alsharif and David K. Li, Parkland Shooting Verdict: School Security Officer Scot Peterson Acquitted Over Failure to Confront Gunman, NBC News (June 29, 2023); Faith Karimi & Chris Boyette, Las Vegas Police Fires an Officer Who 'Froze' in Hotel Hallway During 2017 Massacre, CNN (July 4, 2019).

3.

We have described the AR-15's capacities in abundant detail to demonstrate just how far outside the animating purposes of the Second Amendment this weapon lies. While we know that the AR-15 thrives in combat, mass murder, and overpowering police, appellants have failed to demonstrate that the weapon is suitable for self-defense. This is likely because such a showing would be difficult to make. Indeed, many of the weapon's combat-functional features make it ill-suited for the vast majority of self-defense situations in which civilians find themselves.

To wit: the heightened firepower of AR-15s "pose[s] a serious risk of 'over-penetration' —that is, [bullets] passing through their intended target and impacting a point beyond it." Capen, ___ F.Supp.3d at ___, 2023 WL 8851005, at *15. For example, AR-15 rounds "can pass through most construction materials, even at ranges of 350 yards," thereby threatening the lives of "bystanders, family members, or other innocent persons well outside the intended target area." Id.; see also Kolbe, 849 F.3d at 127 ("[R]ounds from assault weapons have the ability to easily penetrate most materials used in standard home construction, car doors, and similar materials."). Overpenetration poses a grave risk in the home—"where the need for defense of self, family, and property is most acute," Heller, 554 U.S. at 628, 128 S.Ct. 2783—because firing an AR-15 in close quarters will often put the safety of cohabitants and neighbors in jeopardy, see Worman v. Healey, 922 F.3d 26, 37 (1st Cir. 2019).

The large magazines that are integral to the AR-15's effectiveness in combat and mass murder are also ill-suited for typical

self-defense scenarios. As the First Circuit has noted, "civilian self-defense rarely—if ever—calls for the rapid and uninterrupted discharge of many shots." Ocean State Tactical, 95 F.4th at 45. Indeed, "most homeowners only use two to three rounds of ammunition in self-defense," Ass'n of N.J. Rifle & Pistol Clubs v. Att'y Gen. N.J., 910 F.3d 106, 121 n.25 (3d Cir. 2018), with one study finding that when citizens fire shots in self-defense, they fire an average of two shots and, 97% of the time, fire five shots or fewer, Lamont, 685 F. Supp. 3d at 96; see also Kolbe, 849 F.3d at 127; Worman, 922 F.3d at 37; Hanson, 671 F. Supp. 3d at 14-16.

The AR-15 also does not have any of the advantages that the Supreme Court identified in Heller as establishing the handgun as the "quintessential self-defense weapon... for home defense." 554 U.S. at 629, 128 S.Ct. 2783. Compared to a handgun, the AR-15 is heavier, longer, harder to maneuver in tight quarters, less readily accessible in an emergency, and more difficult to operate with one hand. See id.; see also Capen, ___ F.Supp.3d at ___, 2023 WL 8851005, at *15.

Outside the home, the AR-15 has even less utility for self-defense. It is significantly less concealable than a handgun and much more difficult to carry while conducting daily activities. See Capen, ___ F.Supp.3d at ___, 2023 WL 8851005, at *15. When shot in cities, towns, or other densely populated areas where armed confrontations most often occur, the AR-15 presents at least as great a risk as it does in the home of harming innocent bystanders due to overpenetration. See id.; Kolbe, 849 F.3d at 127; Worman, 922 F.3d at 37. Moreover, public carry of an AR-15 in modern-day America may well "spread[] 'fear' or 'terror' among the people" due to its frequent and devastating use in mass shootings of innocent civilians—an effect that our common-law tradition has long regarded as incompatible with lawful carry for self-defense. Bruen, 597 U.S. at 50, 142 S.Ct. 2111.

In sum, the AR-15—with its military origination, combat-functional features, and extraordinary lethality—has "the same basic characteristics, functionality, capabilities, and potential for injury as the" M16. Capen, ___ F.Supp.3d at ___, 2023 WL 8851005, at *14. And its all too frequent use in terrorism, mass killing, and police murder shows that the AR-15 offers firepower ill-suited and disproportionate to fulfilling the Second Amendment's purpose of armed self-defense. Therefore, just like the M16, the AR-15 is "most useful in military service" and "may be banned" consistent with the Second Amendment. Id.

F.

Appellants take umbrage with our method of analysis, contending that "arms that are 'in common use today' are constitutionally protected and cannot be banned." Appellants' Suppl. Opening Br. 2 (quoting Bruen, 597 U.S. at 47, 142 S.Ct. 2111). According to their reading of Heller and Bruen, the covered assault rifles are "unquestionably arms within the meaning of the Second Amendment" because they are "'instruments that constitute bearable arms.'" Id. at 18 (quoting Heller, 554 U.S. at 582, 128 S.Ct. 2783). Therefore, say appellants, the possession of the covered rifles cannot be prohibited because they are "in common use," with "millions of law-abiding citizens choos[ing] to possess" them, and thus "by definition will not fit into" the "historical tradition of prohibiting the carrying of dangerous and unusual weapons" acknowledged in Heller and Bruen. Id. at 19, 27 (internal quotation marks omitted). Under this view, so long as enough law-abiding citizens own a type

of firearm, that type of firearm cannot be prohibited.

As an initial matter, this argument misreads Heller and Bruen. In those cases the Supreme Court did not posit that a weapon's common use is conclusive evidence that it cannot be banned. Rather, the Court instructed that "the Second Amendment protects only the carrying of weapons that are those 'in common use at the time,' as opposed to those that 'are highly unusual in society at large.'" Bruen, 597 U.S. at 47, 142 S.Ct. 2111 (quoting Heller, 554 U.S. at 627, 128 S.Ct. 2783) (emphasis added). In other words, weapons that are not in common use can safely be said to be outside the ambit of the Second Amendment. But the logic does not work in reverse. Just because a weapon happens to be in common use does not guarantee that it falls within the scope of the right to keep and bear arms.

Appellants' argument also does not resolve the difficulties in determining which weapons would pass its ill-conceived popularity test. Appellants posit that a weapon need only be in common use today for lawful purposes, but Bruen implies that a weapon must be "in common use today for self-defense" to be within the ambit of the Second Amendment. 597 U.S. at 32, 142 S.Ct. 2111 (internal quotation marks omitted); see Bevis, 85 F.4th at 1192; Price, No. 22-4609, 111 F.4th at 404-06 (majority opinion). Appellants contend that mere possession of a firearm by a requisite quantity of Americans is sufficient, but the Court's choice of the phrase common use instead of common possession suggests that only instances of "active employment" of the weapon should count, and perhaps only active employment in self-defense. See, e.g., Bailey v. United States, 516 U.S. 137, 143-45, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Appellants further contend that all semiautomatic rifles should be categorized as the same type of firearm when conducting a common use inquiry, and thereby disregard the exponential differences in firepower between a small-bore rimfire rifle and a .50 caliber sniper rifle. What is more, appellants do not provide a clear threshold for the number of firearms they believe must be possessed to be in common use. Cf. United States v. Berger, ___ F.Supp.3d ___, ___, 2024 WL 449247, at *7 (E.D. Pa. Feb. 6, 2024) ("[A]pproximately 740,000 machineguns [were] registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives as of May 2021.").

Most importantly, appellants' proposed common use inquiry leads to absurd consequences because it totally detaches the Second Amendment's right to keep and bear arms from its purpose of individual self-defense. We have noted that certain bearable arms—such as the M16, the short-barreled shotgun, the ricin pellet-firing umbrella gun, and the W54 nuclear warhead—are not protected by the Second Amendment. But under appellants' common use inquiry, any one of these or similarly dangerous weapons could gain constitutional protection merely because it becomes popular before the government can sufficiently regulate it. Appellants admitted as much when they conceded at oral argument that the government could not prohibit possession of a "machine gun," a "bazooka," or "any firearm" so long as the weapon was "in common use." Oral Argument at 14:00-14:58, Bianchi v. Brown, No. 21-1255 (4th Cir. 2024).

Such a trivial counting exercise makes a mockery of the careful interest balancing between individual self-defense and societal order that our legal tradition has carved into the heart of the right to keep and bear arms. It also ignores the reality that weapons may well proliferate before lawmakers comprehend that they are ill-suited

or disproportionate to self-defense. Indeed, dangerousness and unusualness need not be static concepts. That would foreclose the ability of legislators to assess these characteristics and to enhance their knowledge through observation and experience. We cannot reasonably expect our representatives to be fortune tellers, anticipating the score of dangers posed by advances in weapons technology. This is particularly true as the pace of weapons manufacturing and distribution has continued to accelerate in recent years. See, e.g., What Is a Ghost Gun?, CBS News (Apr. 11, 2022). We decline to hold that arms manufacturers can secure constitutional immunity for their products so long as they distribute a sufficient quantity before legislatures can react. A constitutional right with a "meaning ... fixed according to the understandings of those who ratified it" cannot be read to expand or contract based on nothing more than contemporary market trends. Bruen, 597 U.S. at 28, 142 S.Ct. 2111.

Bruen's admonition that the right to keep and bear arms extends only to those weapons "'in common use' today for self-defense" reflects the fact that the Second Amendment protects only those weapons that are typically possessed by average Americans for the purpose of self-preservation and are not ill-suited and disproportionate to achieving that end. 597 U.S. at 32, 47, 142 S.Ct. 2111; see also Lamont, 685 F. Supp. 3d at 71. As demonstrated above, the AR-15 is a combat rifle that is both ill-suited and disproportionate to self-defense. It thereby lies outside the scope of the Second Amendment.

IV.

In Bruen, the Supreme Court emphasized the importance of using history and tradition in determining whether a firearms regulation is permissible under the Second Amendment. See 597 U.S. at 25, 142 S.Ct. 2111 (stressing that "reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable" than means-end scrutiny); id. at 17, 142 S.Ct. 2111 (noting that "[o]nly if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command" (internal quotation marks omitted)). Out of respect for the Supreme Court's order remanding this case after Bruen, we think it appropriate to reckon with the tradition of weapons regulation in this country and assess whether the Maryland statute is harmonious with it. In light of

that analysis, we find that the Maryland regulation is readily "consistent with this Nation's historical tradition of firearm regulation." Bruen, 597 U.S. at 34, 142 S.Ct. 2111.

The statute is one of many in a storied tradition of legislatures perceiving threats posed by excessively dangerous weapons and regulating commensurately. Indeed, the arc of weapons regulation in our nation has mimicked a call and response composition, in which society laments the harm certain excessively dangerous weapons are wreaking, and the state, pursuant to its police power, legislates in kind. The Maryland statute is but another example of this constructive, indeed indispensable, dialogue.

A.

Under Bruen, we must engage in "reasoning by analogy" to "determin[e] whether a historical regulation is a proper analogue for a distinctly modern firearm regulation." 597 U.S. at 28-29, 142 S.Ct. 2111. To do so, we consider "whether [the] modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified." Id. at 29, 142 S.Ct. 2111. The analogue need not be "a historical twin," but must be "a well-established and representative historical analogue." Id. at 30, 142 S.Ct. 2111. Thus, "even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster." Id.

Second Amendment analysis is heavily historical, and to bypass an inquiry into history here would be an inexplicable omission. The Court in United States v. Rahimi reaffirmed Bruen's approach to history. As Chief Justice Roberts wrote for the Rahimi majority, "The law must comport with the principles underlying the Second Amendment, but it need not be a 'dead ringer' or a 'historical twin.'" Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 30, 142 S.Ct. 2111); see also id. at 1907 (Gorsuch, J., concurring) ("To prevail, the government need not show that the current law is a 'dead ringer' for some historical analogue." (quoting Bruen, 597 U.S. at 30, 142 S.Ct. 2111)); id. at 1904-05 (Sotomayor, J., joined by Kagan, J., concurring) (noting that "the Court rejects [a] rigid approach to the historical inquiry" and that a "shared principle" between the old and new laws "is sufficient").

The use of history is thus important not just to remain consistent with the drafters' understanding but also to acquaint Americans with the glories and flaws of our own history and founding generation. It is vital to appreciate that while history may fix the date on which certain events occur, the understanding of history is not frozen in time. See id. at 1897 (majority opinion) (explaining that Heller and Bruen "were not meant to suggest a law trapped in amber"). This understanding deepens as new sources become available and new insights are advanced. Such ongoing learning compels consultation with the historical record, without at the same time using history as a set of minute instructions or a "straightjacket." Bruen, 597 U.S. at 30, 142 S.Ct. 2111. This is what we think Justice Barrett meant when she recently wrote that "[h]istorical regulations reveal a principle, not a mold." Rahimi, 144 S. Ct. at 1925 (Barrett, J., concurring). We take it as such here. This use of history does not update the Constitution, but rather enriches our view of the Framers' understanding of it.

Bruen further instructs that "when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing

that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment." 597 U.S. at 26, 142 S.Ct. 2111. But if a case "implicat[es] unprecedented societal concerns or dramatic technological changes," courts may need to take "a more nuanced approach." Id. at 27, 142 S.Ct. 2111.

B.

This case calls for such a nuanced approach. The ripples of fear reverberating throughout our nation in the wake of the horrific mass shootings in, for example, Las Vegas, Orlando, Blacksburg, Sandy Hook, Sutherland Springs, El Paso, Uvalde, Lewiston, Parkland, San Bernardino, Binghamton, Fort Hood, Thousand Oaks, Virginia Beach, Washington, D.C., Aurora, Monterey Park, Pittsburgh, Geneva County, Boulder, Buffalo, Covina, Dayton, Red Lake, Roseburg, San Jose, Santa Fe, Allen, Charleston, Indianapolis, Manchester, Omaha, and Plano—each of which occurred in the 21st century and resulted in at least nine fatalities—stem from a crisis unheard of and likely unimaginable at the founding. See The Violence Project, Mass Shooter Database (database updated Jan. 2024).

Certainly it would have been shocking to the Framers to witness the mass shootings of our day, to see children's bodies "stacked up ... like cordwood" on the floor of a church in Sutherland Springs, Texas; to hear a Parkland, Florida high school student describe her classroom as a "war zone" with "blood everywhere"; to be at a movie in Aurora, Colorado when suddenly gunfire erupted, leaving "bodies" strewn and "blood on seats, blood on the wall, blood on the emergency exit door"; to run past "shoes scattered, blood in the street, bodies in the street" while bullets blazed through the sky in Dayton, Ohio; to watch law enforcement officers encounter "a pile of dead children" in Sandy Hook, Connecticut; to stand next to one of those officers as he tried to count the dead children, but "kept getting confused," as his "mind would not count beyond the low teens." Silvia Foster-Frau et al., Terror on Repeat: A Rare Look at the Devastation Caused by AR-15 Shootings, Wash. Post (Nov. 16, 2023).

What did our forebears have by way of comparison, when they were drafting the Second and Fourteenth Amendments? Nothing even close. "[T]here is no known occurrence of a mass shooting resulting in double-digit fatalities from the Nation's founding in 1776 until ... 1949." Oregon Firearms Fed'n, Inc. v. Brown, 644 F. Supp. 3d 782, 803 (D. Ore. 2022). Yet, in modern mass shootings involving assault weapons, the death toll is often in the dozens.

Rapid advancements in gun technology are a central cause of this mass carnage. "[W]hile mass murder has been a fact of life in the United States since the mid-nineteenth century, it was a group activity through the nineteenth century because of the limits of existing technologies." Lamont, 685 F. Supp. 3d at 105 (internal quotation marks omitted). Back then, "[t]he only way to kill a large number of people was to rally like-minded neighbors and go on a rampage" using the firearms and melee weapons available at the time. Id. These weapons were "certainly lethal but did not provide individuals or small groups of people the means to inflict mass casualties on their own." Id.

In sharp contrast, AR-15s and the like are designed to empower an individual soldier to kill as many people in as little time as possible, as we demonstrated above. It took only 32 seconds for a lone shooter to murder nine people and shoot 17 others in Dayton, Ohio. Emily Shapiro, 26 Shot in 32 Seconds: New Details, Videos Released

in Dayton Mass Shooting, ABC News (Aug. 13, 2019). It took about two minutes for a single shooter to kill ten people and injure three at a supermarket in Buffalo, New York. N. Kirkpatrick et al., The Blast Effect: This Is How Bullets from an AR-15 Blow the Body Apart, Wash. Post (Mar. 27, 2023). It took less than three minutes for a married couple to murder 14 people and injure 24 at an office in San Bernardino, California. Id.

These are not our forebears' arms, and these are not our forebears' calamities. We thus take the instruction of Bruen to engage in a "more nuanced approach" to address these "unprecedented societal concerns." 597 U.S. at 27, 142 S.Ct. 2111.

C.

Upon canvassing the historical record of arms regulations, and relying with gratitude on the careful work of professional historians, what we deduce is this: legislatures, since the time of our founding, have responded to the most urgent and visible threats posed by excessively harmful arms with responsive and proportional legislation. They have devised well-tailored solutions to the most salient issues plaguing their communities, while nonetheless protecting the core right of their citizens to defend themselves with arms in pressing circumstances. When a weapon's potential for widespread criminal abuse or unreasonable capacity to inflict casualties became apparent to lawmakers, they did not hesitate to regulate in response. We hold that the Maryland statute fits comfortably within this venerable tradition.

On the cusp of the Revolutionary War, firearms were a common fixture in the American home, but they were not used often in homicides. Randolph Roth, Why Guns Are and Aren't the Problem: The Relationship Between Guns and Homicide in American History, in A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment 116 (Jennifer Tucker et al. eds., 2019). And this small slice of homicides committed with firearms was cut from a relatively small pie, as interpersonal violence among colonists and early Americans rarely resulted in death. See id.; Baird v. Bonta, ___ F.Supp.3d ___, ___, 2023 WL 9050959, at *31 (E.D. Cal. Dec. 29, 2023).

The reason firearms were so infrequently used in homicides in the 18th century was because they had limited utility for such a purpose. Many early Americans owned a musket or a fowling piece, but these weapons were prone to misfiring and needed to be reloaded after each shot, a time-consuming process that required acumen and experience. Roth, Why Guns Are and Aren't the Problem, at 116-17; Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L.J. 99, 153 (2023). Keeping firearms preemptively loaded was difficult, as the gunpowder of the day readily absorbed moisture and could corrode the gun's metal barrel and firing mechanism. Roth, Why Guns Are and Aren't the Problem, at 117; Baird, ___ F.Supp.3d at ___, 2023 WL 9050959 at *31. "Guns thus generally were not kept or carried loaded in 1791." Blocher & Ruben, Originalism-by-Analogy, 133 Yale L.J. at 153. Early Americans instead engaged in impromptu fights with their hands and feet, or used melee weapons such as "whips, sticks, hoes, shovels, axes, [or] knives." Roth, Why Guns Are and Aren't the Problem, at 117. Pre-Revolution, then, there was little regulation of firearms in America, as they were seldom used in "homicides that grew out of the tensions of daily life." Id.

One exception to this early lack of regulation was the restriction on gunpowder. Aggregation of gunpowder concerned colonists

as large amounts of the substance "could kill many people at once if ignited." Ocean State Tactical, 95 F.4th at 49. In response to this danger—which resulted from the accumulation of firepower disproportionate to the lawful purpose of individual self-defense—a handful of American cities and states restricted the quantity of gunpowder that an individual could possess.

During the 19th century, the nation saw a surge in interpersonal violence. Starting in the South and then sprawling northward, eastward, and westward, homicide rates swelled. See Randolph Roth, American Homicide 180, 199-201, 299-302, 337 (2009). The proportion of killings committed with firearms increased as well. See Randolph Roth, American Homicide Supplemental Volume: Weapons Figures, Figures 25, 29, 34, 38 (2009); Roth, Why Guns Are and Aren't the Problem, at 122.

Improvements in weapons technology contributed to this rise in interpersonal violence. In the mid-19th century, gunmakers like Samuel Colt greatly improved the designs of percussion-cap repeating pistols, and "breech-loading revolvers, shotguns, and rifles" became widely available to consumers. Roth, Why Guns Are and Aren't the Problem, at 121; see also Brian DeLay, The Myth of Continuity in American Gun Culture, 113 Calif. L. Rev. (forthcoming 2025) (manuscript at 41, 44). Repeating pistols and most breech-loading guns could fire multiple rounds without reloading. Roth, Why Guns Are and Aren't the Problem, at 120-21; DeLay, The Myth of Continuity, at 41, 44. Breech-loading guns could also be kept loaded with minimal risk of corrosion and were more accurate than their flintlock and percussion-lock predecessors. See Roth, Why Guns Are and Aren't the Problem, at 121; Robert J. Spitzer, Understanding Gun Law History After Bruen: Moving Forward by Looking Back, 51 Fordham Urb. L.J. 57, 81-82 (2023). "Americans scrambled to buy" these weapons, which were "ideal for killing in the heat of the moment." Roth, Why Guns Are and Aren't the Problem, at 121. Once people got their hands on these guns, "they kept them everywhere: in their homes, in their wagons, in saddle bags, purses, and pockets." Id. As a result, civilians had easy access to more portable and precise firearms than ever before.

Knives, too, advanced in lethality. Designed for the express purpose of fighting, dirks and Bowie knives generally had longer blades than ordinary knives, cross-guards to protect users' hands, and clip points that made it easier to stab an opponent. See Declaration of Prof. Randolph Roth at 19, Nat'l Ass'n for Gun Rts. v. Lamont, 685 F. Supp. 3d 63 (D. Conn. Aug. 3, 2023) [hereinafter Roth Declaration]; David B. Kopel et al., Knives and the Second Amendment, 47 U. Mich. J.L. Reform 167, 180 (2013). Bowie knives "were widely used in fights and duels, especially at a time when single-shot pistols were often unreliable and inaccurate." Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 89. As the Supreme Court of Texas explained, "The gun or pistol may miss its aim, and when discharged, its dangerous character is lost, or diminished at least," but "[t]he bowie-knife differs from these in its device and design;

it is the instrument of almost certain death." Cockrum v. State, 24 Tex. 394, 402 (1859).

The country set out to do something about the surge in homicides that had been driven, in part, by the development of these more effective arms. Citizens and lawmakers alike recognized that deadly yet concealable weapons—especially pistols, revolvers, and fighting knives—were the primary culprits in a large proportion of the homicides and assaults of the day. In 1834, for instance, the grand jurors of Jasper County, Georgia, denounced the lack of restrictions on concealable weapons. Roth, American Homicide, at 218-19. They told their lawmakers that it was "common" practice among the more violently inclined to "arm themselves with Pistols, dirks knives sticks & spears under the specious pretence of protecting themselves," which resulted in the "stabbing shooting & murdering so many of our citizens." Id.

When confronted with these "public safety concerns over the increase in gun violence and the proliferation of concealable weapons," legislatures responded in kind. They passed restrictions on carry, and, in some cases, outright bans on the possession of certain more dangerous weapons. See DeLay, The Myth of Continuity, at 41, 52. Indeed, over the course of the 19th century and into the early 20th century, nearly every single state would either regulate the carry of certain firearms or place severe restrictions on their possession.

In addition to regulating firearms, legislatures targeted excessively dangerous

weapons such as Bowie knives, dirks, sword canes, metal knuckles, slungshots, and sand clubs. See Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 Law & Contemp. Probs. 55, 62-68 (2017). These weapons were particularly suitable for fighting and "popular[] with street criminals." David B. Kopel & Joseph G. S. Greenlee, The History of Bans on Types of Arms Before 1900, 50 J. Legis. 223, 345 (2024). Those who carried clubs, for instance, were called "devils and lurking highwaymen." Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 96. Slungshots, too, "were a regular part of criminal weaponry," and "gangsters could be merciless in their use." Id. at 97. Laws addressing these weapons ranged from outright bans on their manufacture, sale, and possession; to enhanced criminal penalties for those who used the weapons to commit crimes; to prohibitions on both open and concealed carry. See supra nn.4-9. At least three-quarters of states also enacted brandishing laws, which generally

barred "exhibit[ing]" these dangerous weapons "in a rude, angry or threatening manner." A number of these regulations did, however, make exceptions for those who could demonstrate they had carried or brandished the weapon in reasonable anticipation of being attacked.

A handful of state supreme courts found these statutory regulations on especially dangerous weapons to be consistent with the right to keep and bear arms. In Aymette v. State , the Supreme Court of Tennessee sustained the conviction of a man who illegally concealed a Bowie knife under his clothes, emphasizing that "[t]he Legislature ... ha[s] a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens." 21 Tenn. 154, 159 (1840). The state law was justified, in the court's view, as it existed "to preserve the public peace, and protect our citizens from the terror which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms." Id.; see also Haynes v. Tennessee, 24 Tenn. 120, 122 (1844) (upholding conviction of concealed carrying of a "Mexican pirate-knife" and noting that "[t]he design of the statute was to prohibit the wearing of bowie-knives, and others of a similar description, which the experience of the country had proven to be extremely dangerous and destructive to human life; the carrying of which by truculent and evil-disposed persons but too often ended in assassination"); Cockrum, 24 Tex. at 402-03 (upholding penalty enhancement for homicides committed with a Bowie knife after noting that the it was "an exceeding[ly] destructive weapon" and "the most deadly of all weapons in common use").

In sum, then, 18th and 19th century legislatures "passed laws in a number of states that restricted the use or ownership of certain types of weapons," once it "became obvious that those weapons ... were being used in crime by people who carried them concealed on their persons and were thus contributing to rising crime rates." Roth Declaration at 20. These legislatures —in balancing individual rights and public peacekeeping—permitted individuals to defend themselves with firearms, while ridding the public sphere of excessively dangerous and easily concealable weapons that were primarily to blame for an increase in violent deaths.

At the end of the 19th century, a different type of homicide began to emerge: mass murder spurred by the commercial availability of weaponry that empowered individuals to kill many people quickly. Dynamite, invented in 1866, was one such example. Lamont, 685 F. Supp. 3d at 109. Because it was rather cheap yet very destructive, it was favored by violent activists and anarchists and was employed in a number of infamous bombings between 1919 and 1920, including "the murder of 38 people and the wounding of 143 in an

attack on Wall Street, 36 dynamite bombs mailed to justice officials, newspaper editors, and businessmen (including John D. Rockefeller), and a failed attempt to kill Attorney General A. Mitchell Palmer and his family." Roth Declaration at 38-39.

Another weapon that surfaced during the turn of the century was the semiautomatic firearm, which became available to consumers in the 1890s. DeLay, The Myth of Continuity, at 49. Colt began marketing increasingly effective semiautomatic pistols, culminating in the release of the M1911. Id. at 51. Fully automatic weapons quickly followed, with the Thompson submachine gun being patented in 1920. Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 61. While the "Tommy gun" was initially created for use in World War I as "'purely a military weapon,'" it arrived on the battlefield too late to gain any real traction during that conflict. Id. (quoting William J. Helmer, The Gun That Made the Twenties Roar 75 (1st ed. 1969)). The Tommy gun was marketed to civilians and police forces with little success, in part due to its expense and lack of controllability. Id. at 61-62; Roth Declaration at 38. It instead became popular during the interwar period "with criminals, especially bootleggers." Kopel & Greenlee, The History of Bans, at 287 n.490; Spitzer, Gun Law History, 80 Law & Contemp. Probs. at 68; Helmer, The Gun That Made the Twenties Roar, at 126 ("As a criminal's weapon, the Tommygun was an unqualified success. As a police weapon, it was such a flop that many law-enforcement officials wished sincerely that it had never come off the drawing board."). Other military firearms that had been developed for World War I, such as the Browning Automatic Rifle, similarly "found favor among criminals and gangsters in the 1920s and early 1930s." Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 63.

The upshot was that early 20th-century criminals gained access to weapons with firepower not seen before in civilian life. Some models of the Tommy gun could "go through a 100-round drum magazine in four seconds." Id. at 61. The Browning Automatic Rifle was a heavy machine gun that could fire up to ten rounds per second. See id. at 63. Moreover, these firearms' detachable magazines "empowered individual shooters to inflict far more damage on more people than had been possible with earlier technologies." DeLay, The Myth of Continuity, at 52. When the guns were used, "they exacted a devastating toll and garnered extensive national attention," becoming inextricably linked to notorious crimes including the St. Valentine's Day Massacre (seven gang members and associates killed) and the Kansas City Massacre (four law enforcement officers and one prisoner killed). Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 63; Roth Declaration at 39; Encyc. Britannica, St. Valentine's Day Massacre (Feb. 7, 2024); Fed. Bureau of Investigation, Kansas City Massacre and "Pretty Boy" Floyd (last visited May 12, 2024). These national tragedies put pressure on government to do something about machine guns.

Once again, legislatures responded. And though they enacted regulations in a later century than the ratification of the Second and Fourteenth Amendments, the tide of legislative responses to technological advances in weaponry has persisted throughout our history. So, while we acknowledge that "post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text," we see these 20th-century enactments as steps trod along a well-worn path. Bruen, 597 U.S. at 36, 142 S.Ct. 2111. These later-in-time regulations remain relevant in tracing the broader and consistent

story of our nation's regulation of excessively dangerous weaponry.

The Federal Explosives Act of 1917 regulated possession of dynamite and a wide array of other explosives—regulations that were later expanded by the Organized Crime Control Act of 1970. Pub. L. 65-68, 40 Stat. 385 (1917); Pub. L. 91-452, 84 Stat. 922 (1970). As for semiautomatic and automatic weapons, a great number of jurisdictions took action. At least 29 states enacted anti-machine-gun laws between 1925 and 1934, and ten states restricted semiautomatic weapons between 1927 and 1934. At the federal level, Congress banned possession in the District of Columbia of "any firearm which shoots automatically or semiautomatically more than twelve shots without reloading." Pub. L. No. 72-275, 47 Stat. 650 (1932). The National Rifle Association endorsed the ban, announcing its "desire [that] this legislation be enacted for the District of Columbia, in which case it can then be used as a guide throughout the States of the Union." S. Rep. No. 72-575, at 4-6 (1932). Two years later, Congress enacted the National Firearms Act of 1934, which severely curtailed the civilian possession and general circulation of automatic weapons, as well as sawed-off shotguns, short-barreled rifles, and silencers. Pub. L. No. 73-474, 48 Stat. 1236 (1934). As Judge Wynn's fine opinion in United States v. Price explained, and as the Supreme Court recognized in Miller and Heller, such regulation accorded with the historical understanding of the scope of the Second Amendment right. No. 22-4609, 111 F.4th at 399-400 (majority opinion).

Over the course of the 20th century, the dangers posed by semiautomatic weapons

began to manifest more potently as "a new generation of more expensive and more deadly guns[] entered the criminal market." Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 102. In the mid-to-late 20th century, a profound uptick in crime occurred. Law enforcement at the time lamented that "[t]he ready availability of and easy access to assault weapons by criminals has increased ... dramatically"—a particular problem given that standard-issue police weapons were "no match against a criminal armed with a semi-automatic assault weapon." H.R. Rep. No. 103-489, at 13-14 (1994). Simultaneously, the nation's mass shooting crisis was beginning to emerge, with a 1989 killing of five schoolchildren in Stockton, California prompting public outcry about assault rifles. See Charles Mohr, U.S. Bans Imports of Assault Rifles in Shift by Bush, N.Y. Times (Mar. 15, 1989). In response, President George H.W. Bush temporarily banned the import of assault rifles in 1989, and California became the first state to restrict the possession of assault weapons that same year. See id. As the excessively dangerous nature of these weapons became apparent, Congress enacted a ten-year ban on assault weapons and large-capacity magazines in 1994. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994). Once again, citizens had called for something to be done about the illicit use of excessively dangerous arms, and their elected representatives responded. See DeLay, The Myth of Continuity, at 55 ("Technological changes provoking social concerns that lead to public safety legislation. That is the nation's tradition of firearms regulation.").

* * *

Taking a long view of this history, a definable arc of technological innovation and corresponding arms regulation begins to emerge. Whether these laws and regulations were wise or effective is surely a matter of debate. The point is, however, that legislatures were not disabled constitutionally from enacting them. Spurred often by the demands of the military for use in international armed conflict, weapons became progressively sophisticated and capable of inflicting enormous offensive harm. Arms, for example, were far more advanced at the end of The Great War and World War II than they were at the start of those conflicts. Once introduced to stop an oncoming battlefield foe, firearms frequently transitioned to civilian use and became capable of inflicting greater harms in a lessened time period. The Cold War and contemporary competition between great powers have not diminished arms competition. To the contrary, if the pace of innovation today is any indication, this is just the beginning.

Throughout this history lies a strong tradition of regulating those weapons that were invented for offensive purposes and were ultimately proven to pose exceptional dangers to innocent civilians. In documenting the course of weapons regulations, we see states and localities responding to the calls of their citizens to do something about the horrors wrought by excessively dangerous weapons, while preserving the core right of armed self-defense. When violence surged in the public square, states and localities responded by regulating the manner of carry; forbidding brandishing; and banning the sale, manufacture, and possession of weapons that were particularly useful for offensive and criminal purposes. And as some modern firearms became capable of inflicting mass horrors, government did not hesitate to circumscribe their possession while leaving intact the right to own weapons more suitable to the Second Amendment's purpose of personal protection. The Maryland statute at issue is yet another chapter in this chronicle. It only regulates weapons that are ill-suited for and disproportionate to the objective of self-defense, while honoring the right of Americans to possess arms more compatible with the Second Amendment's purpose. The legislation is a direct response to the calls of citizens who fear it is only a matter of time before mass violence will afflict their communities absent government intervention. In heeding their outcry, Maryland is in the company of centuries of state governments that have done the same.

The Supreme Court has made clear that the Second Amendment is an integral component of the Bill of Rights. But as our nation's history has shown, it is "neither a regulatory straightjacket nor a regulatory blank check." Bruen, 597 U.S. at 30, 142 S.Ct. 2111. The Amendment has not disabled the ability of representative democracy to respond to an urgent public safety crisis. To disregard this tradition today— when mass slaughters multiply and the innovation of weaponry proceeds apace— could imperil both the perception and reality of well-being in our nation. We therefore hold that Maryland's regulation of assault weapons is fully consistent with our nation's long and dynamic tradition of regulating excessively dangerous weapons whose demonstrable threat to public safety led legislatures to heed their constituents' calls for help.

V.

When our Founders bravely coalesced around that revolutionary piece of parchment, quill pens in hand, they certainly sought to protect the citizenry's inherent liberties from the often oppressive hand of government. At the same time, though, our Founders organized their fellow countrymen into a civilized society with an elected government, which necessarily entailed the ceding of unadulterated freedom for the nation's common good. See John Locke, Two Treatises of Government (1689). Much as the branch of a willow offers a gentle bend so that the wind may blow and the birds may nest, so too did our predecessors craft a political community in which rights must sometimes bend to better accommodate the rights of others.

One way in which our nation agreed to temper our individual liberties was by accepting that the pre-existing rights codified within our Constitution came with inherent qualifications crafted through centuries of common law. The Second Amendment was no exception. The right to keep and bear arms must be read within the context of how the Framers conducted this balancing of individual rights with societal prerogatives when they enacted the Second Amendment. Far from disturbing this basic balance, Heller and Bruen reaffirmed it, making clear that lower courts are duty bound to apply the terms of the balance enshrined in the Constitution's text, not to dictate such terms themselves. The language of entitlement is qualified by the language of limitation in those opinions, and we are bound to respect both.

The founding generation's understanding that the Second Amendment codified a right that is less than absolute is all the more important today, when modern armaments are increasingly used for crimes so mean and vile that it is difficult even to read about them. Imagine, then, living through these recent tragedies. Imagine the sense of loss that afflicts not only the moment, but the lifetimes of those families and friends affected. And then imagine that you mobilize and lobby your representatives to pass preventative legislation, only to be told by a court that your Constitution renders you powerless to save others from your family's fate. The Second

Amendment, as elucidated by Heller and Bruen, does not require courts to turn their backs to democratic cries—to pile hopelessness on top of grief. We shudder to imagine the hubris with which a court would disable representative government at the very moment that lethal technologies are proceeding at an accelerated and indeed unprecedented pace. In 79 A.D., the Roman Emperor Vespasian proclaimed, "Woe is me, I think I am becoming a god." Oxford Concise Dictionary of Quotations 386 (Susan Ratcliffe ed., 6th ed. 2011). The Supreme Court, in alluding to the balance struck by our own founding generation, has avoided a judicial environment where Vespasian would fit right in.

The Framers recognized they could not foresee all the dangers that novel weaponry would someday pose, or the circumstances that would invoke the basic power of government to protect the governed. Maryland is a testament to their prescience, though other states with other characteristics and other approaches to this problem may be as well. We have before us nothing more or less than a challenge to one state's regulation of assault weapons. Following Heller and Bruen, we hold that the Maryland statute is plainly a constitutional enactment.

VI.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.

DIAZ, Chief Judge, with whom Judges KING, WYNN, THACKER, BENJAMIN, and BERNER join, concurring:

In the wake of one of this country's most horrific mass shootings, Maryland's legislature acted. Using the considerable police power afforded to it by our Constitution, and heeding the pleas for action of its constituents, the State banned the type of weapon (and similar weapons) that had been used to gun down twenty children and six staff members at Sandy Hook Elementary School.

Judge Wilkinson's masterful and eloquent opinion for the majority (which I join in full) explains why Maryland's ban "peaceably coexist[s]" with the Second Amendment's text, Majority Op. at 446, adheres to our Nation's "strong tradition of regulating excessively dangerous weapons," id., and satisfies well-understood notions of federalism meant to be abridged only sparingly and with good reason. I write briefly to comment on how this case lays Bruen's challenges bare.

As my colleagues have explained, Bruen "[r]eject[ed] the means-end approach" many lower courts had used after Heller in favor of a "two-step methodology oriented towards text, history, and tradition."¹ Majority Op. at 445; see also Dissenting Op. at 496-97. First, a court "looks to the text of the Second Amendment to see if it encompasses the desired conduct at issue." Majority Op. at 445-46 (citing Bruen, 597 U.S. at 24, 142 S.Ct. 2111). If it doesn't, then we all go home. But if it does, then "the analysis moves to the second step, where the burden shifts to the government to 'justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.'" Id. at 446 (quoting Bruen, 597 U.S. at 24, 142 S.Ct. 2111). Easy enough.

Except that it hasn't been. Bruen has proven to be a labyrinth for lower courts,

including our own,² with only the one-dimensional history-and-tradition test as a compass. Questions abound at the framework's two steps, so that "courts, operating in good faith, are struggling at [each] stage of the Bruen inquiry."³ Others have well summarized many of these consequential gaps, so I won't belabor them here.⁴ But courts, tasked with sifting through the sands of time, are asking for help. And the Supreme Court's recent attempt to decipher the Bruen standard in United States v. Rahimi, ___ U.S. ___, 144 S. Ct. 1889, ___ L.Ed.2d ___ (2024), offered little instruction or clarity about how to answer these persistent (and often, dispositive) questions.

Look no further for a front row seat to this confusion than the principal opinions authored today. Each was written by a thoughtful colleague, who engaged in an exhaustive sweep of history, only to reach diametrically opposed conclusions about what that history means.

I think my friend Judge Wilkinson has the far better of the argument. His robust textual analysis and nuanced historical survey each offer—at least in this case—"a way to bring discipline to the increasingly erratic and unprincipled body of law that is emerging after Bruen." Id. at 1929 (Jackson, J., concurring) (cleaned up).

But if courts are to apply and replicate precedent consistently, then either the Bruen framework is failing, or we are. And if the cacophony of decisions we've seen post-Bruen is any indication,⁵ then confusion isn't simply a bug of the framework— it's a feature, even if unintended. Hewing true to our oaths, we've done our best to apply Bruen faithfully, but the law shouldn't work like this.

Particularly so given the horrific consequences. Gun violence generally is, and mass shootings specifically are, on the rise.⁶ In fact, gun violence is seen by at least some experts as an epidemic.⁷ Technological advances in guns have moved them ever farther from the Second Amendment's revolutionary-era musket to something unrecognizably faster, more accessible, and more lethal.⁸ One such weapon,

whose popularity seemingly knows no bounds, is the AR-15.

The court's principal opinions describe the AR-15's history, its popularity, its firepower, its destructiveness, its lawful uses, and its unlawful ones. They illustrate, quite persuasively, why the AR-15 has become the chosen weapon of mass shooters and terrorists. See, e.g., Dissenting Op. at 525-26 (describing the AR-15's superiority to a handgun and other rifles because of its balance of force, accuracy, controlled recoil, and maneuverability); see also id. at 526 ("The AR-15's perceived superiority is aided by many features that make it wieldable for people of all ages and sizes."). "Indeed," as Judge Wilkinson explains, the "AR-15 or AK-47 type assault rifles covered by the Maryland regulations have been used in every major terrorist attack on U.S. soil in the past decade." Majority Op. at 457 (recounting terrorist incidents in San Bernadino, Orlando, Pittsburgh, El Paso, and Buffalo).⁹

The "history-only" view of my dissenting colleagues, while cleaving to all of Bruen's strictures and none of its oxygen, would dismiss these public safety concerns of today as untethered to the discernible legislative footprints of 250 years ago.¹⁰ In their mind, because the modern regulation addressing those public safety concerns has cosmetic differences with its historical precursor, or imposes a slightly different burden, the legislature is helpless to act.¹¹

That cannot be. Why even have a ballot box when our laws are fossilized in a history book? That's no way to foster a democracy, but it's an effective way to paralyze one.

Of course, the Court doesn't require "a law trapped in amber," Rahimi, 144 S. Ct. at 1897, demanding only a historical "principle, not a mold," id. at 1925 (Barrett, J., concurring). Whatever those instructions mean on the ground, Maryland has responded to current public safety concerns, consistent with historical principles supporting the regulation of dangerous weapons.

Although we "offer no view," Majority Op. at 442, on whether Maryland's legislative approach is the right one, we do conclude that its representatives acted with both its constituents, and our country's history, in proper view.

* * * *

At a June 12 high school graduation in Newtown, Connecticut, twenty names were called, though no student crossed the

stage.¹² They had never left their first-grade classrooms. All because of one man, six minutes, and an AR-15. This chilling episode (and many like it) should give us pause.¹³ It gave the people of Maryland pause and propelled its legislature to act.

It is neither a "trope[]" nor "hyperbole," Dissenting Op. at 526-27, to recite truthfully the carnage wrought by such weapons. And we refuse today to shackle Maryland's representatives as they work in good faith to stop the bloodshed.

History should guide. The Constitution should anchor. But neither should drown us.

GREGORY, Circuit Judge, concurring in the judgment:

In the interim between the Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), our Circuit assessed Second Amendment challenges under a two-part framework that considered the history of the Second Amendment right as well as the government's interests in protecting its citizens. Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017), abrogated in part by Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387. In Bruen, the Supreme Court rejected the latter portion of that framework as "one step too many," and held that the government may not justify a firearms regulation on the basis that it promotes an important interest. Bruen, 597 U.S. at 17, 142 S.Ct. 2111. Rather, the Court said, a regulation can survive a Second Amendment challenge only if the government can demonstrate that the challenged regulation is consistent with our country's historical tradition of firearm regulation. Id.

As I read it, that binding precedent instructs that we refrain from balancing the right guaranteed by the Second Amendment against the general governmental interests of safety and order, and instead confine our analysis to history and tradition. Id. at 17, 19, 142 S.Ct. 2111. Because I believe the majority did not adhere to that instruction, I cannot join the majority's opinion. But because Maryland's statute is relevantly similar to historic weapons prohibitions, I concur in the judgment.

I.

My colleagues in the majority suggest that, under Bruen, the plain text of the Second Amendment limits its purview to weapons "in common use today for self-defense." Majority Op. at 459-60, 460-61. In their estimation, only "those weapons that are typically possessed by average Americans for the purpose of self-preservation and are not ill-suited and disproportionate to achieving that end" are entitled to constitutional protection. Id. at 461.

At the other end of the spectrum, my colleagues in the dissent read Bruen much more broadly and posit that any weapon in common use for lawful purposes is necessarily not dangerous and unusual at step two, and is, therefore, automatically protected by the Second Amendment. Dissenting

Op. at 515. Based on that interpretation, the dissent maintains that because millions of people across the country own the semiautomatic rifles challenged here, the Constitution prohibits Maryland from banning those weapons. Id. at 520-21.

I disagree with both positions. I do not read Bruen to define "arms" as narrowly as the majority does or to otherwise cabin the Second Amendment right to effectively cover only handguns and the like. Nor do I share in the dissent's view that under Bruen a legislature may only prohibit weapons that are not in common use for lawful purposes and particularly useful for criminal activity. Dissenting Op. at 515-16. Rather, as I see it, Supreme Court precedent and the historical tradition require courts to examine a firearm with regard to more than its utility for self-defense or lawless behavior in determining whether the weapon is dangerous and unusual.

The Supreme Court has not yet defined the purview or instructed on the proper placement of the dangerous and unusual analysis. In that vacuum, courts have struggled to interpret the scope of the constitutional right to bear arms as informed by Bruen and other Supreme Court precedent. Bruen itself bears much of the responsibility for that Herculean exercise. In determining that New York could not prohibit possession of handguns under the tradition of prohibiting dangerous and unusual weapons the Supreme Court explained:

Whatever the likelihood that handguns were considered "dangerous and unusual" during the colonial period, they are indisputably in "common use" for self-defense today. They are, in fact, "the quintessential self-defense weapon." Thus, even if these colonial laws prohibited the carrying of handguns because they were considered "dangerous and unusual weapons" in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.

Bruen, 597 U.S. at 47, 142 S.Ct. 2111. As a threshold matter, the Supreme Court's conclusion, as expressed in that portion of the opinion, must be read with the understanding that (1) the statute at issue in Bruen prohibited most New Yorkers from possessing any firearm, and (2) the Supreme Court had previously recognized handguns as the "quintessential self-defense weapon." See id. at 47, 142 S.Ct. 2111; see also Heller, 554 U.S. at 629, 128 S.Ct. 2783 (stating that "the American people have considered the handgun to be the quintessential self-defense weapon).

With that context in mind, I understand the Supreme Court's statement as simply clarifying that if the Second Amendment is to have any teeth, firearms regulations cannot completely prohibit citizens from possessing handguns generally, which New York's statute effectively did. Nothing in that quote, elsewhere in Bruen, or in any other precedential Second Amendment case forecloses the conclusion that a class of firearms in common use can be prohibited because they are dangerous and unusual, or that a person may possess a weapon that is not in common use for self-defense.

Rather, I interpret the Supreme Court's precedent to date as establishing that the Second Amendment presumptively protects all bearable arms, but history supports regulation of arms that are dangerous and unusual, including but not limited to, those arms not presently in common use. See Heller, 554 U.S. at 582, 128 S.Ct. 2783 (explaining that the Second Amendment "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."); id. at 627, 128 S.Ct. 2783 (recognizing that the historical tradition of prohibiting "dangerous and unusual"

weapons "fairly support[s]" excluding weapons "not in common use at the time" from Second Amendment protection); see also Bruen, 597 U.S. at 21, 142 S.Ct. 2111.

Under that interpretation, a statute that prohibits possession of a weapon in common use for a lawful purpose is not per se unconstitutional. Similarly, a statute that regulates weapons not in common use for self-defense does not automatically fall outside of the Second Amendment's protection. Our analysis therefore does not necessarily begin and end with determining whether the weapon or weapons covered under a challenged statute are in common use—be it for lawful purposes or self-defense—as my colleagues suggest. Majority Op. at 459-60, 460-61; Dissenting Op. at 515-16, 520. Rather, whether a weapon is in common use is but one factor that we must consider in the Second Amendment analysis.

II.

As the dissent notes, data indicates that AR-style semiautomatic rifles represented 20% of all firearms sold in 2020, that at least 16 million Americans owned a semiautomatic rifle at some point, and that over 50% of semiautomatic rifle owners indicated that they own the weapon for self-defense, hunting, or another lawful purpose. Dissenting Op. at 517-19. That data suggests that these arms are widely circulated and possessed by millions of people throughout the nation for lawful purposes, including self-defense. Our Court also acknowledged the popularity of AR-15s and similar semiautomatic rifles years ago in Kolbe, and that popularity has only increased since. See Kolbe, 849 F.3d at 128-29 (acknowledging that "[t]he plaintiffs' evidence reflect[ed] 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'"). Given those facts, it is clear that semiautomatic rifles are in common use for lawful purposes today.

* * *

I pause to note that despite "reaffirm[ing] the conclusion we reached in Kolbe that [semiautomatic rifles covered under Maryland's statute] are not constitutionally protected arms," presumably at step one, the majority conducted a Bruen step two analysis during which it assessed whether semiautomatic rifles can be prohibited as dangerous and unusual. In that analysis, the majority took liberty to extensively discuss mass shootings and other criminal uses of semiautomatic rifles of the type covered under Maryland's statute. See e.g. Majority Op. at 456-58, 463-64. The majority also referred to "a strong tradition of regulating those weapons that were invented for offensive purposes and were ultimately proven to pose exceptional dangers to innocent civilians." Id. at 471.

Elsewhere, the majority claimed that "our society has deemed that giving people the capacity to use large amounts of force at a moment's notice in a sensitive place is not worth the danger that they will unlawfully deploy such force against innocent civilians or public figures there." Id. at 450. According to the majority, those limitations, "reflect a careful balancing of interests between individual self-defense and public protection from excessive danger that existed within the meaning of the phrase the right to keep and bear arms" when the Second Amendment was ratified. Id. The majority again mentioned the "careful interest balancing between individual self-defense and societal order" immediately before discussing its view of "dangerousness and unusualness" later in its opinion. Id. at 460-461. In my view, the majority's analysis is comprised of the very sort of means-end scrutiny that Bruen explicitly forbids courts from applying in the Second Amendment context. Bruen, 597 U.S. at 19, 142 S.Ct. 2111; see also id. at 29 n.7 142 S.Ct. 2111 (stating that the step two analysis does not give courts license to "engage in independent means-end scrutiny under the guise of an analogical inquiry ... Analogical reasoning requires judges to apply faithfully the balance struck by the founding generation to modern circumstances... It is not an invitation to revise that balance through means-end scrutiny"). Indeed, as one of our sister circuits recently put it, "Bruen makes clear that the question whether a burden is comparably justified cannot be answered by pointing to the gravity of the harms the legislation was designed to avert and the appropriateness of the mechanism they adopt." Bevis v. City of Naperville, Illinois, 85 F.4th 1175, 1200 (7th Cir. 2023) (internal quotation and citation omitted), cert. denied sub nom. Harrel v. Raoul, ___ U.S. ___, 144 S. Ct. 2491, ___ L.Ed.2d ___ (2024).

That said, we cannot ignore the horrific tragedies the majority highlights in its opinion. Over the past two decades, our nation has in fact suffered at the hands of those who elected to inflict turmoil on innocent victims, communities, and our society overall. Unfortunately, our nation's citizens are faced with the fear that we, or our loved ones, may be harmed while shopping for groceries, enjoying outside entertainment, taking a class, attending a religious service, or otherwise engaging in what should be a safe activity. I am sympathetic to the very troubling realities on which the majority sheds light. However, I believe that binding precedent prohibits us from considering those tragedies, or a legislature's interest in limiting or preventing them, when assessing the validity of a statute that implicates the Second Amendment.

To me, Bruen dictates that, despite the concerns plaguing society, in determining whether Maryland's statute is constitutional, we must limit our consideration to history and tradition to determine whether the government has demonstrated that Maryland's statute is analogous to a historic weapons prohibition. Bruen, 597 U.S. at 19, 142 S.Ct. 2111 (stating that Supreme Court precedent "do[es] not support applying means-end scrutiny in the Second Amendment context"); see also id. at 22, 142 S.Ct. 2111 (recognizing that the Court has "rejected the application of any judge-empowering interest-balancing inquiry that asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests"). Against that backdrop, I now proceed to the step two analysis.

III.

Under Bruen, if a statute regulates conduct covered by the Second Amendment, the government must justify the challenged statute at step two by proving that it "comport[s] with the principles underlying the Second Amendment." United States v. Rahimi, ___ U.S. ___, 144 S. Ct. 1889, 1898, ___ L.Ed.2d ___ (2024) (citing Bruen, 597 U.S. at 30, 142 S.Ct. 2111). Notably, the government is not required to identify a historical prohibition that is a "dead ringer" or a "historical twin" to survive a Second Amendment challenge. Id. Rather, the government need only demonstrate that its prohibition "is consistent with the principles that underpin our regulatory tradition." Id.

How and why the challenged statute burdens the Second Amendment right are significant considerations in determining

whether the law is "relevantly similar" to a historical analogue though they are not the only factors a court may consider in its assessment. Id.; see also id. ("Why and how the regulation burdens the right are central to this inquiry."); Bruen, 597 U.S. at 29, 142 S.Ct. 2111 (stating that the Court was not undertaking to "provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment" but that Supreme Court precedent directs us to consider "how and why" the regulation burdens the right).

Although our Court disagrees about much regarding the parameters of the Second Amendment right and analysis, we all seem to agree that there is a historical tradition in our nation of prohibiting dangerous and unusual weapons based on characteristics and functions that caused the lawmakers of those times to classify them as dangerous and unusual when compared to other weapons. Majority Op. 450-51, 460-61; Dissenting Op. at 515. In first recognizing that tradition, Justice Scalia cited several sources documenting "affray laws" and laws prohibiting "riding or going armed" with dangerous and unusual weapons. Heller, 554 U.S. at 627, 128 S.Ct. 2783. Notably, and contrary to the dissent's focus on the term "carrying," Justice Scalia recognized protecting only weapons in common use as an "important limitation on the right to keep and carry arms." Id. (emphasis added). In my view, those laws demonstrate that our nation has always permitted legislation regulating certain aspects of the way in which an individual chooses to exercise his Second Amendment

right. In other words, although we all have the right to bear arms, a legislature may prohibit us from exercising that right in a manner that could cause harm to or terror in others. Thus, at minimum, the government could meet its burden in this case by analogizing the manner and reasoning that underscores Maryland's statute to historical prohibitions of dangerous and unusual weapons for reasons unrelated to their common use. But the dissent disagrees that such an analogy would satisfy the government's burden.

According to the dissent, in order to justify the challenged statute under the historical tradition of regulating dangerous and unusual weapons, the government must prove that semiautomatic rifles are not typically possessed by law-abiding citizens for lawful purposes. Dissenting Op. at 515. That test is too narrow in that it equates common use (which it seems to define based on the prevalence of the firearms in the public domain) with usualness and cabins the Second Amendment analysis to determining whether a weapon is in common use based on its utility for lawful and lawless purposes. I do not believe that the Court's precedents support such a limitation.

In fact, the Supreme Court has never said (or even implied) that weapons in common use are necessarily not dangerous and unusual, that "not in common use" and "dangerous and unusual" are synonymous, or that legislation that covers a weapon in common use is per se unconstitutional. The Court has, however, said that according the protections of the "right to keep and carry arms" only to those weapons "in common use at the time" is "fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Heller, 554 U.S. at 627, 128 S.Ct. 2783; Bruen, 597 U.S. at 21, 142 S.Ct. 2111. That guidance indicates that those weapons not in common use may be banned under the tradition of prohibiting the carrying of dangerous and unusual weapons. But it does not shield weapons in common use from scrutiny concerning their dangerousness and unusualness. Thus, while a weapon not in common use is deemed dangerous and unusual, it does not follow that a weapon in common use is not dangerous and unusual. Instead, "not in common use" is one criteria that may be used to ban a weapon under the "dangerous and unusual" umbrella.

So what else falls under the umbrella? Given that neither the Supreme Court's precedents nor history clarify how we should interpret "dangerous and unusual" in connection with the Second Amendment, I look to the ordinary meaning of the words at the time the Second Amendment was ratified for guidance.

The 1773 edition of Samuel Johnson's dictionary defined "dangerous" as "Hazardous; perilous; full of danger," and defined "unusual" as "Not common; not frequent; rare." Dangerous, 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978); Unusual, 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978). Notably, nothing in these definitions directs our attention to the legality of the object to which they refer, nor to the destruction in the wake of its usage. Rather, both individually and collectively, dangerous and unusual, are used to describe the object to which they refer, in its entirety and considering its characteristics. I see no reason why these words should not be interpreted in connection with the Second Amendment in a manner consistent with their ordinary meanings at the time the Amendment was ratified.

Moreover, it "would be a startling reading," see Heller, 554 U.S. at 624, 128 S.Ct. 2783, of those definitions to assume that they do not apply to the object in its

entirety—including its characteristics, features, and functions. A firearm may therefore be dangerous for reasons other than its suitability for unlawful purposes, such as its firing capability; or unusual for reasons other than its rarity or numerosity as a whole, such as the object's rare potency, potentiality, or other unique function. And a legislature may ban a weapon equipped with functions that render it dangerous and unusual, irrespective of how many people own it. That is exactly what the Maryland legislature elected to do here.

Maryland's statute bans AR-15s and other semiautomatic rifles with characteristics that make them excessively dangerous and highly unusual in society. We previously considered the lethality of these sorts of weapons in Kolbe where we noted that the weapons have "features designed to achieve their principal purpose—killing or disabling the enemy." Kolbe, 849 F.3d at 125 (internal quotations omitted). There, we recognized that these weapons could shoot a large number of rounds at far distances at a high rate of speed, are often capable of accepting large-capacity magazines, and use rounds that can pierce body armor and most materials. Id. at 125, 127. We also determined that many of the features of these weapons increase their utility for lethality. Id. at 137. We said:

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 ... the net effect of [which] 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. We further noted that, despite only being a semiautomatic weapon (which requires repeated trigger engagement), the AR-15's rate of fire enables it to empty a thirty-round magazine in as little as five seconds. Id. at 136.

The Seventh Circuit recently discussed the AR-15's characteristics in assessing challenges to an Illinois statute that prohibits weapons like those at issue here. Bevis, 85 F.4th at 1175. According to that court, the AR-15 has a semiautomatic rate of 300 rounds per minute, an effective range (distance a bullet will travel with accuracy) of 602 to 875 yards, a muzzle velocity (speed a bullet travels when fired) of 2800 to 3100 feet per second and delivers the kinetic energy (energy transferred to the target on impact) of 1220 to 1350 foot-pounds. Id. at 1196. In layman's terms, the AR-15 can hit a target several hundred yards away in seconds and cause massive damage on impact. Additionally, given the weapon's features and the distance it can fire with accuracy, a shooter using this type of weapon may be undetectable. The ability of these weapons to cause grave damage, from a great distance, without detection make them dangerous and unusual in society at large. Maryland's ban is therefore consistent with the principles that underlie our nation's historical tradition of prohibiting dangerous and unusual weapons.

IV.

As courts continue to grapple with Bruen, unfortunately in the midst of successive tragedies, we will no doubt see the boundaries of the historical tradition of regulating dangerous and unusual weapons being defined. At this juncture, I would simply hold that Maryland's ban on certain semiautomatic rifles falls within the boundaries of our nation's historical tradition of regulating dangerous and unusual weapons, wherever those boundaries may ultimately lie. I therefore concur in the judgment. RICHARDSON, Circuit Judge, with whom Judges NIEMEYER, AGEE, QUATTLEBAUM, and RUSHING join, dissenting:

After the Supreme Court decided New York State Rifle and Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), it remanded this case for us to determine whether Maryland's "assault weapons" ban violates the Second Amendment. Yet before the panel could issue its opinion, our court voted to take the case en banc. Now, the majority decides that Maryland's ban is perfectly consistent with the Second Amendment. But the majority's rationale disregards the Second Amendment and controlling precedent. Rather than considering the Amendment's plain text, the majority sidesteps it altogether and concocts a threshold inquiry divorced from the right's historic scope. To make matters worse, it then misconstrues the nature of the banned weapons to demean their lawful functions and exaggerate their unlawful uses. Finally, to top it all off, the majority cherry-picks various regulations from the historical record and pigeonholes them into its preferred—yet implausible—reading of our Nation's historical tradition of firearms regulation.

I respectfully dissent. The Second Amendment is not a second-class right subject to the whimsical discretion of federal judges. Its mandate is absolute and, applied here, unequivocal. Appellants seek to own weapons that are indisputably "Arms" within the plain text of the Second Amendment. While history and tradition support the banning of weapons that are both dangerous and unusual, Maryland's ban cannot pass constitutional muster as it prohibits the possession of arms commonly possessed by law-abiding citizens for lawful purposes. In holding otherwise, the majority grants states historically unprecedented leeway to trammel the constitutional liberties of their citizens.

I. Background

Appellants challenge the constitutionality of Maryland's ban on the possession, sale, purchase, transfer, or receipt of an "assault weapon," with some minor exceptions not relevant here. Md. Code Ann., Crim. Law § 4-303. The ban defines "assault weapon" to include both a specific list of centerfire rifles and all semiautomatic centerfire rifles that have one of three criteria: (1) a fixed magazine that can hold more than ten rounds; (2) an overall rifle length under twenty-nine inches; or (3) a detachable magazine and at least two of a folding stock, grenade or flare launcher, or flash suppressor. Id. § 4-301(h); Md. Code Ann., Pub. Safety § 5-101(r)(2).¹ Our Court, sitting en banc, held that this ban did not violate the Second Amendment in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc).

When Appellants filed their complaint in 2020, their challenge was foreclosed by Kolbe. They admitted as much, acknowledging that they sought to have Kolbe overturned by us or the Supreme Court. Maryland filed an answer and sought to proceed to discovery, but the district court sua sponte dismissed the complaint for failure to state a claim because Kolbe was binding, on-point precedent. We affirmed. Bianchi v. Frosh, 858 F. App'x 645 (4th Cir. 2021). Appellants then petitioned for certiorari and, after the Supreme Court decided Bruen, the Court granted the petition, vacated our panel opinion, and remanded

the case for reconsideration. Bianchi v. Frosh, ___ U.S. ___, 142 S. Ct. 2898, 213 L.Ed.2d 1111 (2022).

On remand, we ordered the parties to provide supplemental briefing addressing Bruen's impact on the case. A panel then heard oral argument on December 6, 2022. But after more than thirteen months of delay, the judges of this Court took the case from the assigned panel and granted initial hearing en banc.² We then requested more briefing, and we held en banc oral argument on March 20, 2024.

II. Maryland's ban violates the Second Amendment.

This case is our en banc Court's first attempt to implement the Supreme Court's decision in Bruen. It is incumbent on us to do so correctly and faithfully to our original law. So I begin by examining the historical background of the Second Amendment before turning to the Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), Bruen, and, most recently, United States v. Rahimi, ___ U.S. ___, 144 S. Ct. 1889, ___ L.Ed.2d ___ (2024). Next, I explain why our decision in Kolbe departed from Heller and was abrogated by Bruen. I then examine the tradition of prohibiting dangerous and unusual weapons and conclude that Maryland's ban is not justified by this tradition, since the tradition does not support a complete ban on the possession of weapons that are commonly used for lawful purposes. Finally, I respond to the majority's novel and unfounded construction of the Second Amendment and its application to this case.

A. The Second Amendment and Supreme Court Precedent

1. Historical Background of the Second Amendment

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." U.S. Const. amend. II. Like many amendments, this text codified a preexisting right. Heller, 554 U.S. at 592, 128 S.Ct. 2783. Grasping its scope thus depends on an understanding of its historical development.

For much of England's history, the country had neither a standing professional army nor a regular police force. Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 2 (1994). The responsibility for maintaining peace, order, and safety in the community fell primarily on the people themselves.

Townsfolk would take turns patrolling and keeping watch over the town by day and by night.³ When a felony occurred, villagers were expected to raise the "hue and cry," which would require all neighbors to pursue the fleeing suspect until he was captured.⁴ Local sheriffs could also summon the posse comitatus—composed of every able-bodied male from ages fifteen to sixty—to help pursue lawbreakers, suppress riots, and keep the public peace.⁵ Finally, for large-scale emergencies like invasion or insurrection, the civilian militia could be mobilized.⁶ From everyday safeguards to emergency responses, the English people themselves were largely responsible for protecting the realm from internal and external threats.

The people could only fulfill these duties if they owned arms and were skilled in their use. Hence, English monarchs took great steps to ensure that the general populace had the necessary armaments and skill to be mobilized when the need arose. Nathaniel Bacon, A Historical and Political Discourse of the Laws and Government of England 40 (1682) ("[A]ll were bound upon call under peril of Fine, and were bound to keep Arms for the preservation of the Kingdom, their Lords, and

their own persons."). For instance, the Assize of Arms, enacted in 1181 during the reign of Henry II, classified the population by income and required members of each class to own certain military weapons and armor. See 27 Hen. 2, §§ 1-2 (1181). The Statute of Winchester later recodified these requirements in 1285 and imposed mandatory militia service on all able-bodied males. See 13 Edw. St. 2 c. 6 (1285). Besides requiring private ownership of military weapons, the Crown also obliged members of the militia to report for muster and military duty and to engage in mandatory training sessions. Malcolm, To Keep and Bear Arms, supra, at 5-6; Granville Sharp, Tracts Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 18 (3d ed. 1782) ("And indeed the laws of England always required the people to be armed, and not only to be armed, but to be expert in arms...."). In England, then, arms keeping was a duty that facilitated the people's responsibility to protect their communities.

For our purposes, the pivotal period in English history is that between the Restoration and the Glorious Revolution. Upon the return of the Stuart dynasty in 1660, King Charles II recognized the need to secure his power against a population that had recently beheaded his father. So he formed both a special militia and a private army of loyal volunteers, which he then used to police opponents of his regime and confiscate their weapons. Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 42 (rev. ed. 2013). The king's efforts to disarm the broader population were aided by the enactment of the Militia Act of 1662, which empowered royal officers to search the homes and seize the arms of any person considered dangerous to the peace of the kingdom, and the Game Act of 1671, which effectively disqualified most of the population from keeping arms. Malcolm, The Right of the People, supra, at 301-05; Heller, 554 U.S. at 592-93, 128 S.Ct. 2783. Charles II's successor, the Catholic James II, would later use these same statutes to disarm his Protestant subjects and quarter his standing army among them. Aymette v. State, 21 Tenn. 154, 157 (1840).

The tyrannical reign of the Stuarts brought about the Glorious Revolution, which saw James II abdicate the throne for William of Orange and his wife, Mary. But the experience under the Stuarts had revealed the danger of military force concentrated in the Crown's hands and the importance of having an armed populace to resist government oppression. Heller, 554 U.S. at 593, 128 S.Ct. 2783; Aymette, 21 Tenn. at 157. So the English people sought and obtained assurances of their fundamental rights and liberties from their new monarchs. The Declaration of Rights, codified as the English Bill of Rights, lamented James II's attempt to overthrow "the Laws and Liberties of this Kingdom" by "causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to law." 1 W. & M., Sess. 2, c. 2 (1688). It then declared as one of the thirteen "true, auntient and indubitable Rights and Liberties" that "the Subjects which are Protestants may have Arms for their Defence suitable to their Condition and as allowed by Law." Id. The English Bill of Rights thus ensured that the English people would be allowed "to defend their just rights[] and compel their rulers to respect the laws." Aymette, 21 Tenn. at 157.

By the American Founding, the English Bill of Rights was understood to enshrine an individual right to keep arms for protection against public and private violence. Heller, 554 U.S. at 594, 128 S.Ct. 2783. Blackstone explained that the right "of having arms"—declared by the English

Bill of Rights and derived from "the natural right of resistance and self-preservation" —was an "auxiliary right" which "serve[d] principally as [a] barrier[] to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property." 1 Blackstone, supra, at *136, *139; 2 J.L. de Lolme, The Rise and Progress of the English Constitution 886-87 (1784) (A. Stephens ed., 1838). It ensured that Englishmen possessed arms "for their own defence" and could fulfill their duty to assist "in the execution of the laws and the preservation of the public peace." William Blizard, Desultory Reflections on Police 60 (1785); Sharp, supra, at 27 (explaining that the right to have arms existed "for mutual as well as private defence"). But it also allowed them to defend against government violations of their rights, such as "when the sanctions of society and laws are found insufficient to restrain the violence of oppression." 1 Blackstone, supra, at *139; Sharp, supra, at 27. The right to arms thus ensured that the English people had adequate means to defend themselves against private violence and public oppression.

This English backdrop informed the public's understanding of the right to keep arms in the American colonies. Living thousands of miles from their homeland, with neither a professional police force nor a standing army, the colonists were forced to rely on themselves to keep the peace and defend against external threats. Leider, The State's Monopoly of Force, supra, at 51. Unsurprisingly, they resorted to familiar institutions, like the hue and cry and the posse comitatus, to fight crime and respond to other public emergencies.⁷ They also relied heavily on the militia; every colony except Pennsylvania⁸ required most able-bodied, free, white men, usually those between ages sixteen and sixty, to enlist in the militia. Churchill, supra, at 145. Militias served many important public functions during this time: They "protected communities from bandits and vigilantes, guarded prisoners, served as patrols, prevented lynchings when unpopular executions were scheduled, had riot duty, helped settle land-related disputes, and helped manage public ceremonies and parades, providing domestic security of the state." Michael J. Golden, The Dormant Second Amendment: Exploring the Rise, Fall, and Potential Resurrection of Independent State Militias, 21 Wm. & Mary Bill Rts. J. 1021, 1044 (2013); see

also Akhil Amar, Heller, HLR, and Holistic Legal Reasoning, 122 Harv. L. Rev. 145, 164 (2008). Domestic security in the colonies, like in Medieval England, was a community endeavor.

None of this would have been possible without ready access to arms. So it is no surprise that firearm possession was widespread in the colonies. Those who departed for the New World received express assurances from the Crown that they could keep and use weapons for their defense.⁹ To ensure sufficient arms, most colonies required members of the militia to keep certain arms—usually one "cutting weapon" (like a sword or bayonet) and at least one firearm—that would be useful for defense of the community.¹⁰ Additionally, many colonies

required even those exempt from militia service to keep weapons in their homes in case of emergency, such as a sudden attack on the settlement.¹¹ Yet because most colonists could not afford to own an array of arms, particularly firearms, they typically satisfied these requirements by keeping weapons that were common for individual self-defense or hunting.¹² Arms keeping in the colonies was thus a privilege and duty of all individuals that facilitated both "defense of one-self and one's community." Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407, 427 (4th Cir. 2021)¹³; Amar, supra, at 164 ("[I]ndividual self-protection and community defense were not wholly separate spheres.").

Defense of one's community was not limited to protecting against criminals or hostile foreign forces, though. Social contract theory hypothesized that individuals voluntarily entered political society to protect their rights, including their right to self-defense, from violation by others.¹⁴ The body politic then delegated political authority for its protection to the government

via a constitution.¹⁵ But the people remained constantly wary that the government would abuse its political authority and invade their rights. Indeed, the English experience under the Stuarts demonstrated that this was a real danger. So the people reserved a degree of military power for themselves and exercised it through institutions like the militia and the posse comitatus. Maintaining a decentralized and dispersed force in this way would mitigate the need for a standing army, which was commonly feared to have interests separate from those of the community and to be a ready instrument of tyranny. And it ensured that if the government ever did turn armed force upon the people, they could readily resist. The keeping of arms in the colonies thus facilitated self-defense not only against acts of private violence and foreign threats, but also against any despotic government that tried to invade the colonists' liberties.

The colonists' fear of tyranny ultimately materialized in the leadup to the American Revolution. Concerned by growing colonial resistance to British policies, King George III and his royal officials imposed an embargo on all incoming arms and ammunition shipments, obstructed access to colonial magazines, and even ordered soldiers to confiscate arms and ammunition. David Kopel, How the British Gun Control Program Precipitated the American Revolution, 6 Charleston L. Rev. 283, 291-301 (2012). The colonists responded by organizing special militias free from royal control

and invoking their right to keep arms for their defense. Id. at 301-12. And when British troops marched on Lexington and Concord in 1775 to seize the colonists' military supplies, they were met by militiamen bearing their own arms and willing to sacrifice their lives to defend their liberties. Malcolm, To Keep and Bear Arms, supra, at 145.

Over a decade later, concerns about a tyrannical federal government would dominate debates over the proposed Constitution. Antifederalists feared that the lack of a bill of rights and increased national powers would allow Congress to disarm the populace and rule by standing army or select militia. In response, Federalists argued that Congress would be given no authority to infringe the fundamental right of the people to keep arms and that, if Congress ever attempted to do so, the widespread ownership of arms would enable the people to resist. For example,

James Madison explained that Americans had the "advantage of being armed" over European nations, which, together with the existence of subordinate governments, would form a "barrier" against tyranny. The Federalist No. 46, at 321-22 (James Madison) (Jacob E. Cooke ed., 1961); see also id. at 321 (noting that a standing army turned against the people "would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence"). Alexander Hamilton echoed these same sentiments, insisting that if Congress ever threatened the people with a standing army, "that army [could] never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens." The Federalist No. 29, at 184 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

The Federalists eventually managed to persuade Americans to ratify the Constitution. Yet they failed to assuage the people's concerns over the lack of specifically enumerated rights. So when the First Congress convened, Madison proposed a bill of rights to be added to the Constitution. After various revisions, the First Congress eventually approved, and the states ratified, ten amendments to the Constitution, the second of which secured for the people the right to keep and bear arms.

The Second Amendment can be understood only in light of the centuries of history that preceded it. It did not create a fundamental right anew. Rather, as has long been recognized, it secured a preexisting right that developed over centuries in the Anglo-American tradition. At its most basic level, that right guarantees that "the people" can have and carry arms in defense of themselves and their communities. Self-defense, in other words, is its

foundational purpose. But self-defense can be individual or collective. And the Second Amendment expressly ensures that the people can preserve "the security of a free State"—that is, a "free country" or "free polity"—should their government ever threaten their inviolable liberties. Individual and communal self-defense against both foreign and domestic threats were thus the purposes enshrined in the Second Amendment upon ratification. That text still being law, they remain the Amendment's purposes to this day.

2. Heller, Bruen, and Rahimi

For many years, the Second Amendment lay dormant as a sort of second son among other constitutional rights. But that changed with the Supreme Court's decision in Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637. Heller not only established that the Second Amendment secures an individual right that extends to keeping a handgun in the home for self-defense, but also elucidated the Amendment's aforenoted purposes and the principle that the Amendment protects the possession of weapons in common use for lawful purposes today. Heller involved a Second Amendment challenge to the District of Columbia's prohibition on possessing handguns in the home. Id. at 573, 128 S.Ct. 2783. In rejecting the claim that the Second Amendment has no role outside of formal militia service, the Court began its analysis by examining the ordinary meaning of the constitutional text. Id. at 576-77, 128 S.Ct. 2783. Starting with the words "right of the people," the Court determined that the Second Amendment secures an individual right, rather than a collective right, for "all members of the political community, not an unspecified subset." Id. at 579-81, 128 S.Ct. 2783. It then found that the word "Arms" refers to all "[w]eapons of offence, or armour of defence" or "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." Id. at 582, 128 S.Ct. 2783 (first quoting 1 Samuel Johnson, Dictionary of the English Language 106 (4th ed. 1773); and then quoting 1 Timothy Cunningham, A New and Complete Law Dictionary (1771)). From these sources, the Court concluded that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Id. Finally, the Court found that to "keep arms" meant to "have" or "possess" weapons, while to "bear arms" meant to "carry" them. Id. at 582-92, 128 S.Ct. 2783. Putting all this together, the Court held that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Id. at 592, 128 S.Ct. 2783.

The Court then canvassed various historical sources to confirm its semantic interpretation of the Amendment's plain text. See Rahimi, 144 S. Ct. at 1925 (Barrett, J., concurring) (explaining Heller's use of history to understand the text). First, it examined the "historical background" of the right, including English history from the late 1600s onwards, establishing the importance of arms keeping in the American colonies. Heller, 554 U.S. at 592-95, 128 S.Ct. 2783 ("[T]he Second Amendment, like the First and Fourth Amendments, codified a pre-existing right."). It then compared the Second Amendment's language to similar provisions in state constitutions from before and after the Amendment's adoption. Id. at 600-03, 128 S.Ct. 2783. Lastly, it canvassed various post-ratification sources, such as writings by Founding-era jurists, nineteenth-century case law, public and Congressional discussions, and post-Civil War commentary. Id. at 605-19, 128 S.Ct. 2783 (explaining that post-ratification evidence can be used "to determine the public understanding" of the constitutional text). These sources confirmed the Court's initial interpretation of the plain text: The Second Amendment protects an individual right to keep and bear arms, independent of militia service.

Along the way, the Court explained the purposes for which the Second Amendment right was secured. Based on its reading of the historical record, the Court concluded that the "central component" of the Second Amendment is the right to keep and bear arms for individual self-defense. Id. at 599, 128 S.Ct. 2783. But the Court did not hold that this is its only purpose. See McDonald v. City of Chicago, 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (explaining that Heller's "central holding" was that "the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home" (emphasis added)); Cruikshank, 92 U.S. at 553 (explaining that the right protects "bearing arms for a lawful purpose" (internal quotation marks omitted)). To the contrary, the Court also identified other lawful purposes,

like hunting and—important to our case—defense of the community at large against violence and government tyranny. Heller, 554 U.S. at 599, 128 S.Ct. 2783. Drawing on the right's historical background, the Court found that "the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence." Id. at 594, 128 S.Ct. 2783 (emphasis added). Later, the Court recognized that the right existed to preserve a "citizens' militia"—not merely an "organized militia"—that would serve "as a safeguard against tyranny." Id. at 600, 128 S.Ct. 2783. The Court thus reaffirmed that the right to keep and bear arms exists for several lawful purposes besides individual self-defense.

The Court next examined its precedents, particularly United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206. In Miller, the Court upheld an indictment against two men charged with unlawfully transporting a short-barreled shotgun in violation of the National Firearms Act, 48 Stat. 1236 (1934), which imposes strict taxation and registration requirements on owners of especially dangerous firearms, including short-barreled shotguns and machine guns. Miller, 307 U.S. at 176, 59 S.Ct. 816. In its brief before the Court, the government argued that the regulated weapons had "no legitimate use in the hands of private individuals" and "frequently constitute[d] the arsenal of the 'public enemy' and the 'gangster.'" Brief of the United States at 20, Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (No. 696). The Court began its opinion by explaining that the Second Amendment was adopted to preserve the militia and therefore "must be interpreted and applied with that end in view." Miller, 307 U.S. at 178, 59 S.Ct. 816. And it found that, at the Founding, the militia consisted of ordinary citizens who "were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Id. at 179, 59 S.Ct. 816 (emphasis added). Yet the defendants had provided no evidence that short-barreled shotguns were "part of the ordinary military equipment" or "could contribute to the common defense." Id. at 177, 59 S.Ct. 816. So the Court rejected their challenge, finding that the possession or use of such weapons had no "reasonable relationship to the preservation or efficiency of a well regulated militia." Id.

Although Justice Stevens argued that Miller supports a militia-based interpretation of the Second Amendment, Heller, 554 U.S. at 637, 128 S.Ct. 2783 (Stevens, J., dissenting), the Court in Heller read Miller to establish "the type of weapon ... not eligible for Second Amendment protection," id. at 622, 128 S.Ct. 2783 (majority op.). It acknowledged that Miller could be read to hold that "only those weapons useful in warfare are protected." Id. at 624, 128 S.Ct. 2783. But this language, the Court clarified, must be read alongside Miller's finding that the traditional militia included men "bringing arms 'in common use at the time' for lawful purposes like self-defense." Id. (quoting Miller, 307 U.S. at 179, 59 S.Ct. 816). In other words, weapons the people commonly used at the Founding were precisely those that were also useful in civilized warfare. So the Court in Heller concluded that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns"—even if such weapons happen to be useful in warfare. Id. at 625, 128 S.Ct. 2783.

Later, the Court clarified the historical basis of the "common use" limitation recognized in Miller. See id. ("[Miller] accords with the historical understanding of the scope of the right...."). This limitation,

the Court found, "is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Id. The Court then explained that, because of this limitation, the Second Amendment does not protect "arms that are highly unusual in society at large"— such as "M-16 rifles and the like"—even though such arms are "most useful for militia service." Id. These weapons are therefore unprotected not because they aren't "Arms" under the plain text, but because they fall within the historical tradition of regulating dangerous and unusual weapons.

B. Kolbe is demonstrably inconsistent with Heller and has been abrogated by Bruen.

This case requires us to consider the viability of our decision in Kolbe after Bruen, a question that implicates two important relationships: our horizontal relationship to past Circuit precedent and our vertical relationship to Supreme Court precedent.

Horizontal stare decisis is a well-settled doctrine in the courts of appeals that varies in strength based on the level of review. When a panel of our Court considers past panel or en banc precedents, it ordinarily must apply them "as a mechanical mandate." Payne v. Taslimi, 998 F.3d 648, 654 (4th Cir. 2021). Our en banc Court, by contrast, may overrule prior panel or en banc precedents. McMellon v. United States, 387 F.3d 329, 333-34 (4th Cir. 2004) (en banc). In determining whether to overrule a past decision, we are guided by traditional stare decisis considerations, Payne, 998 F.3d at 654, the most important of which is whether a past decision is "demonstrably erroneous," Gamble v. United States, 587 U.S. 678, 717-18, 139 S.Ct. 1960, 204 L.Ed.2d 322 (2019) (Thomas, J., concurring); see also Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 21-48 (2001) (explaining the traditional doctrine of stare decisis at the Founding).

Even greater than our obligation to follow our own precedent, however, is our obligation to follow decisions of the Supreme Court. So even if horizontal stare decisis would otherwise dictate that we follow past Circuit precedent, we cannot do so "if its reasoning or holding is inconsistent with a Supreme Court decision." United States v. Banks, 29 F.4th 168, 175 (4th Cir. 2022); Rose v. PSA Airlines, Inc., 80 F.4th 488, 504 (4th Cir. 2023). This is especially so when "'a superseding contrary decision of the Supreme Court' ... specifically rejected the reasoning on which our decision was based." Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090-91 (4th Cir. 1993) (quoting Busby v. Crown Supply, Inc., 896 F.2d 833, 840-41 (4th Cir. 1990)).

Kolbe had two holdings. It first held that the rifles Maryland bans are not protected by the Second Amendment because they are "'like' 'M-16 rifles,'" in that both are "'weapons that are most useful in military service.'" 849 F.3d at 121 (quoting Heller, 554 U.S. at 627, 128 S.Ct. 2783). In the

alternative, Kolbe held that, even if the banned rifles are protected by the Second Amendment, Maryland's ban passes constitutional muster under intermediate scrutiny. See id.

The latter holding obviously conflicts with Heller and does not survive Bruen. The Court in Bruen explained that means-end scrutiny has no place under the Second Amendment. See Bruen, 597 U.S. at 19, 142 S.Ct. 2111. And it cited Kolbe's second holding as an example of the analysis it was rejecting. See id. (citing Kolbe, 849 F.3d at 133). So that holding is no longer good law.

C. Maryland's ban violates the Second Amendment.

Since Kolbe no longer controls, I must assess whether Maryland's ban is constitutional under Bruen's two-part analysis. I first ask whether the Second Amendment's plain text covers Appellants' proposed course of conduct. Bruen, 597 U.S. at 17, 142 S.Ct. 2111. If so, then the regulation is unconstitutional unless Appellees can show that it "is consistent with the Nation's historical tradition of firearm regulation." Id.

Applying this framework, it is evident that Maryland's semiautomatic-rifle ban violates the Second Amendment. Maryland's

law regulates conduct protected by the plain text of the Second Amendment, since it prohibits "the people" from "keep[ing]" certain "Arms." And Appellees have failed to justify Maryland's ban under history and tradition. The proscribed arms are indisputably in common use by law-abiding citizens for lawful purposes. So they are not "dangerous and unusual" weapons and cannot be prohibited consistent with the Second Amendment.

1. Maryland's law regulates conduct protected by the plain text of the Second Amendment.

2. Maryland's ban on certain semiautomatic rifles violates the Second Amendment because these arms are in common use for lawful purposes.

At Bruen's second step, Appellees must prove that our Nation's historical tradition justifies Maryland's ban on semiautomatic rifles. Heller already identified one such tradition: the tradition prohibiting the carry of "dangerous and unusual weapons." See 554 U.S. at 627, 128 S.Ct. 2783. So a straightforward application of Heller would seemingly require us to determine whether the banned weapons are dangerous and unusual. If they are, then they can be prohibited. But if they either are not dangerous or not unusual, then their prohibition would violate the Second Amendment.

Rather than following in Heller's footsteps, Appellees try to blaze their own path through the historical record. Drawing mostly from nineteenth- and twentieth-century regulations on the carry of certain weapons, Appellees argue that our Nation's historical tradition allows the government to ban "extraordinarily dangerous weapons that pose heightened risks" to public safety. Appellee's Br. at 37 (decapitalized). And Appellees seem to think that such weapons can be banned even if they are commonly possessed for lawful purposes. In other words, Appellees seem to think that our history and tradition support two kinds of arms bans: (1) bans on weapons that are dangerous and unusual, and (2) bans on weapons that are exceptionally dangerous.

But the historic laws Appellees cite do not represent a new and previously unknown tradition. Rather, when properly understood, they represent the same principle already identified in Heller: The Second Amendment protects weapons commonly used for lawful purposes but does not protect dangerous and unusual weapons. As I will demonstrate, this principle extends back far before the Second Amendment and forward long after its enactment.

Accordingly, I begin by extrapolating support for and examining the contours of this tradition. Then, I apply my findings to Maryland's ban on certain semiautomatic rifles, concluding that the challenged ban violates the Second Amendment because it prohibits possession of weapons commonly possessed by law-abiding citizens for lawful purposes.

But first, some ground rules. My goal is to discern the original law of the Second Amendment. William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457-58 (2019); see Heller, 554 U.S. at 634-35, 128 S.Ct. 2783 (indicating that courts should interpret constitutional rights according to "the scope they were understood to have when the people adopted them"). The Second Amendment's plain text is the best evidence of this original law. See Heller, 554 U.S. at 576, 128 S.Ct. 2783. So the fact that a challenger's conduct falls within the plain text is enough to presume that it is constitutionally protected. Bruen, 597 U.S. at 17, 142 S.Ct. 2111. Yet we know that the Second Amendment codified "a pre-existing right" that originated in historical customary law. Heller, 554 U.S. at 592, 128 S.Ct. 2783. And though it adopts this preexisting right, the text of the Second Amendment does not spell out its historic contours in full detail. See id. at 626-27,

128 S.Ct. 2783. Therefore, we look to history and tradition to grasp the full scope of the right as it was ratified in 1791 and incorporated against the states in 1868.

a. History and tradition support the banning of dangerous and unusual weapons, but not weapons commonly used for lawful purposes.

I begin by considering the English history of regulating the right to keep or carry certain arms. This is, after all, where Heller and Bruen started. 554 U.S. at 592-93, 128 S.Ct. 2783; 597 U.S. at 39-46, 142 S.Ct. 2111. At the same time, I am mindful of Bruen's admonition that "not all history is created equal." 597 U.S. at 34, 142 S.Ct. 2111. "'[T]he language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted,' not as they existed in the Middle Ages." Id. at 39, 142 S.Ct. 2111 (quoting Ex parte Grossman, 267 U.S. 87, 108-09, 45 S.Ct. 332, 69 L.Ed. 527 (1925)). Accordingly, I only rely on English tradition insofar as it bears on the original scope of the Second Amendment in America.

Appellees do not cite any English history or custom from before the Founding that supports a ban on possessing certain firearms. This is probably because Bruen already covered this ground and found it lacking. See id. at 39-46, 142 S.Ct. 2111; see also Kopel & Greenlee, supra, at 228-31. As detailed above, English subjects were required for much of England's history to possess military weapons. And what arms bans did exist were scarce. For example, in 1383, King Richard II outlawed the possession of "launcegays"—a kind of lightweight lance—but did not ban the heavier war lance. 7 Rich. 2 c. 8 (1383); Kopel & Greenlee, supra, at 230. Likewise, in 1541, Henry VIII prohibited anyone under a certain 124 income level from owning and using handguns shorter than a yard unless he had a license. 33 Hen. 8 c. 6, §§ 1-2 (1541). But rather than reflecting a fear of dangerous weapons, that statute ensured that Englishmen would not quickly replace the reliable military longbow with novel—but less effective—handguns. Bruen, 597 U.S. at 42, 142 S.Ct. 2111. Regardless, this statute gradually fell into disuse, and the last recorded prosecutions under it occurred in the late seventeenth century. See id. at 43 n.10 142 S.Ct. 2111; Kopel & Greenlee, supra, at 231. Finally, in 1616, James I outlawed "dags"—a type of small handgun—yet this decree seems to have been disregarded. See A Proclamation Against Steelets, Pocket Daggers, Pocket Dagges and Pistols (Robert Barket ed., 1616); Kopel & Greenlee, supra, at 10.

All in all, I know of no longstanding English practice lasting until the Revolution of prohibiting the possession of types of arms, extraordinarily dangerous or otherwise.

English history is more ambiguous when it comes to regulating the carry of certain weapons. When Edward III assumed the throne in 1327, the country was in a state of unrest, as bands of knights and other malefactors roved the land committing acts of violence. Bruen, 597 U.S. at 40, 142 S.Ct. 2111. Parliament responded by enacting the Statute of Northampton in 1328, which provided that most Englishmen could not "come before the King's Justices, or other of the King's Ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King's pleasure." 2 Edw. 3 c. 3 (1328). Exactly how often the statute was enforced, however, is less apparent. As Bruen explained, it had become basically obsolete by the late seventeenth century, and it was interpreted narrowly to prescribe only actions done with evil intent or malice. See 597 U.S. at 43-44, 142 S.Ct. 2111 (discussing the prosecution of Sir John Knight).

b. Maryland's ban prohibits weapons that are commonly used for lawful purposes.

Having canvassed the historical record, I now apply my findings to this dispute. Appellees indirectly attempt to place their law within the historical tradition of regulating dangerous and unusual weapons, but to do so they must prove two things. First, Appellees must show that the banned weapons are "not typically possessed by law-abiding citizens for lawful purposes." Heller, 554 U.S. at 625, 128 S.Ct. 2783. Second, Appellees must show that the banned weapons are particularly useful for criminal activity. If Appellees make both showings, then Maryland's ban is constitutional. But if the prohibited weapons are commonly possessed for lawful purposes, or if they are not dangerous, then they cannot be banned consistent with the Second Amendment.

I start with common usage because it turns out to be dispositive. A thing is "common" if it has "the quality of being public or generally used." Bryan Garner, Garner's Dictionary of Legal Usage 179 (3d ed. 2011). Whether a type of weapon is in common use is thus largely an "objective

and largely statistical inquiry" that examines broad patterns of usage and the reasons behind that usage. Kolbe, 849 U.S. at 153 (Traxler, J., dissenting) (quoting Hollis v. Lynch, 827 F.3d 436, 449 (5th Cir. 2016)); Duncan v. Becerra, 970 F.3d 1133, 1147 (9th Cir. 2020); see also Heller, 554 U.S. at 628-29, 128 S.Ct. 2783 (noting that handguns are common because they are "overwhelmingly chosen by American society for [self-defense]"); Caetano v. Massachusetts, 577 U.S. 411, 420, 136 S.Ct. 1027, 194 L.Ed.2d 99 (2016) (Alito, J., concurring) (explaining that tasers and stun guns are common because hundreds of thousands of them have been sold to private citizens and they are considered a legitimate means of self-defense). Importantly, we assess common usage based on usage patterns today, not those at the time of the Founding. See Heller, 554 U.S. at 582, 128 S.Ct. 2783; Caetano, 577 U.S. at 411-12, 136 S.Ct. 1027 (reversing a state court for examining whether stun guns were in common use at the Founding); Bruen, 597 U.S. at 47, 142 S.Ct. 2111 ("Whatever the likelihood that handguns were considered 'dangerous and unusual' during the colonial period, they are indisputably in 'common use' for self-defense today."). And in conducting this inquiry, we consider the practices of all Americans, not simply those within the state of Maryland. See Heller, 554 U.S. at 628, 128 S.Ct. 2783 (explaining that handguns are "overwhelmingly chosen by American society for [self-defense]" (emphasis added)); Bruen, 597 U.S. at 26, 142 S.Ct. 2111 (describing the Second Amendment as a balance "struck by the traditions of the American people" (emphasis added)); see also Caetano, 577 U.S. at 420, 136 S.Ct. 1027 (Alito, J., concurring) (examining taser and stun gun usage "across the country").

III. The Majority

Faced with this mountain of evidence, what does the majority do? It ignores it completely. In its place, the majority first constructs a "plain-text" inquiry that has no basis in the Second Amendment's plain text or the Supreme Court's precedents. It then applies this test in an exaggerated and hyperbolic fashion divorced from actual facts about the firearms at issue. Finally, the majority offers a cursory account of the relevant history that crumbles under the slightest scrutiny.

A. The majority concocts a threshold inquiry divorced from the Second Amendment's plain text.

The majority begins its analysis by reaffirming our decision in Kolbe. Yet rather than taking isolated statements from Heller out of context, as we did in Kolbe, the majority gallantly attempts to ground Kolbe's holding in the Second Amendment's plain text. The Second Amendment's plain text, the majority explains, must be read "in context" according to its central (and seemingly lone) purpose: the right of individual self-defense. Majority Op. at 447-48, 448-49. Drawing from the common law of self-defense, the majority concludes that the right only protects weapons that are "most appropriate and typically used for self-defense," but not "excessively dangerous weapons ill-suited and disproportionate to such a purpose" and "most suitable for criminal or military use." Id. at 448-52. The majority then applies this novel framework and concludes that the banned weapons are not even protected by the Second Amendment's plain text, because they are military-style, criminal weapons that are, in my good friend's expert opinion, "ill-suited and disproportionate to self-defense." Id. at 461.

It is remarkable that the majority, for all its claimed fidelity to the Second Amendment's plain text, barely mentions that text at all, let alone Heller's construction of it. Heller already conducted a "textual analysis" of the Second Amendment based on its "normal and ordinary meaning" and confirmed its interpretation against "the historical background" of the right. 554 U.S. at 576-78, 592, 128 S.Ct. 2783 (internal quotation marks omitted). It found that the term "Arms" includes all "[w]eapons of offence" and therefore "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Id. at 581-82, 128 S.Ct. 2783 (internal quotation marks omitted). And it concluded that the right codified by the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Id. at 592, 128 S.Ct. 2783. Under this definition, semiautomatic rifles obviously qualify as "Arms." Before deftly ripping the rug out from under the ordinary reader, even the majority seems to agree. See Majority Op. at 447 ("At first blush, it may appear that these assault weapons fit comfortably within the

term 'arms' as used in the Second Amendment.").

Instead of analyzing this text, however, the majority pivots to reading it in light of its alleged sole purpose: the right of individual self-defense. It then contrives limits on the constitutional text based on how the majority thinks this purpose is best fulfilled. But the Supreme Court rejected this exact approach to constitutional interpretation in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). There, the Court warned against deriving exceptions to constitutional rights based on judicial notions of the text's underlying "policies," "purposes," or "values." Id. at 374-75, 128 S.Ct. 2678 (internal quotation marks omitted). It explained that "[i]t is not the role of courts to extrapolate from the words of [a constitutional right] to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values." Id. at 375, 128 S.Ct. 2678. Rather, judges must honor the "specific means" chosen by the people to achieve those underlying purposes. Id. And in the Second Amendment context, we derive those means using text and history—not by speculating how we as judges would have conducted that original balance today.

Even if I were to ignore the Supreme Court's warning and interpret the plain text in this fashion, the majority still errs by adopting an overly cramped view of the Second Amendment's original purpose. The majority thinks that the Second Amendment exists solely to protect individual self-defense. Tellingly, however, the majority cites no evidence that the "ratifying public's consciousness" ever read the Second Amendment in such a cramped fashion. Majority Op. at 447. Nor does the majority cite anywhere in Heller, Bruen, or Rahimi where the Court adopted such a limiting construction. That would have been an odd reading, indeed, seeing as the ratifying population widely agreed that the Second Amendment served larger purposes than individual self-defense, including the defense of the body politic and the prevention of tyranny.

B. Even under the majority's concocted test, semiautomatic rifles would be protected by the Second Amendment, because they are useful and appropriate for self-defense and are neither "military weapons" nor more useful for criminal activity than handguns.

Even if the majority's novel framework were correct, however, Maryland's ban would still be unconstitutional. If you're going to manufacture a test that turns on a weapon's functionality and utility, you must look at actual evidence of its functions and uses, rather than speculate about both. And the facts show that semiautomatic rifles like the AR-15 are useful and appropriate for self-defense. They are not "military-style" weapons; they are civilian versions with meaningfully different functionalities. Not to mention, they are used far less for criminal ends than other protected weapons like handguns.

Before I begin, it's important to establish the basics of individual self-defense. Lawful self-defense is not and has never been a one-size-fits-all endeavor. The goal in self-defense situations is stopping attackers in their tracks. Buford Boone Declaration

at J.A. 2176, Kolbe, 849 F.3d 114 (No. 14-1945). This means that a defender needs a weapon accurate enough to strike the attacker, powerful enough to knock him down, and maneuverable enough to get on target. Unfortunately, tradeoffs exist between these variables. A more powerful weapon can generate greater recoil and muzzle climb, making each shot less accurate. Maximizing accuracy, meanwhile, can reduce stopping power. And a weapon's size and style often affect not only maneuverability but also accuracy and stopping power. Thus, there is no magic bullet when it comes to self-defense. Anyone who desires a weapon to defend himself must weigh these variables and judge which weapon best maximizes them for his particular circumstances.

As Heller observed, many Americans believe that handguns strike this balance best. 554 U.S. at 629, 128 S.Ct. 2783. Indeed, handguns offer many features that are conducive to individual self-defense in the home. Handguns are easier to store and more readily accessible in case of emergency. Id. They cannot easily be knocked aside or taken by a would-be attacker. Id. They require less strength to carry than your typical rifle. Id. And they can be wielded with one hand in case of injury or to call the police. Id. It is consequently no surprise that "handguns are the most popular weapon chosen by Americans for self-defense in the home." Id.

But there are drawbacks to handguns, too, ones that meaningfully curtail their utility for self-defense in the home. The most important of these is their inferior stopping power. A bullet's wounding power is based mainly on the kinetic energy it generates when it strikes a target, which in turn depends on the combination of the bullet's mass and its exit velocity (½ × M × V2, to be precise). E. Gregory Wallace, "Assault Weapon" Lethality, 88 Tenn. L. Rev. 1, 44 (2020). As handguns generally have significantly lower exit velocity, the average handgun is less likely to halt an aggressor than a rifle. Boone Declaration, supra, at J.A. 2131; Gary Roberts Declaration at J.A. 2098-99, Kolbe, 849 F.3d 114.

Inferior stopping power isn't the only problem. Handguns are also less accurate than most rifles. Unlike rifles, handguns lack a shoulder stock, so it is harder to hold them steady and aim them accurately. Guy Rossi Declaration at J.A. 2131, Kolbe, 849 F.3d 114. This also means that they absorb less recoil from the propulsion of the bullet and generate more kick and muzzle climb. Id. The net combination of these features is that handguns, though compact and easily maneuvered, are less accurate than rifles. Roberts Declaration, supra, at J.A. 2097-98.