Amicus Curiae Brief — David Seth Worman, et al., Petitioners v. Maura T. Healey, Attorney General of Massachusetts, et al.

No. 19-404

In the

Supreme Court of the United States

____________________

David Seth Worman, et al.,

Petitioners,

v.

Maura T. Healey, et al.,

Respondents.

____________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the First Circuit

____________________

BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION

OF CHIEFS OF POLICE ET AL.

IN SUPPORT OF PETITIONERS

(AMICI LISTED INSIDE COVER)

____________________

C. D. MICHEL

SEAN BRADY

ANNA MARIE BARVIR

MICHEL & ASSOCIATES, P.C.

180 EAST OCEAN BLVD.

SUITE 200

LONG BEACH, CA 90802

(562) 216-4444

cmichel@michellawyers.com

October 25, 2019

DAN M. PETERSON*

DAN M. PETERSON PLLC

3925 CHAIN BRIDGE ROAD

SUITE 403

FAIRFAX, VIRGINIA 22030

(703) 352-7276

dan@danpetersonlaw.com

*Counsel of Record

The following law enforcement organizations and

firearms rights groups are amici curiae in this case:

National Association of Chiefs of Police

Western States Sheriffs’ Association

California State Sheriffs’ Association

California Reserve Peace Officers Association

New Mexico Sheriffs’ Association

International Law Enforcement Educators and

Trainers Association

Law Enforcement Legal Defense Fund

San Francisco Veteran Police Officers Association

International Association of Law Enforcement

Firearms Instructors

CRPA Foundation

Connecticut Citizens Defense League

Gun Owners of California

New York State Rifle & Pistol Association

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................... iii

INTEREST OF AMICI CURIAE ............................. 1

SUMMARY OF ARGUMENT.................................. 5

ARGUMENT ............................................................ 8

I. THE BANNED FIREARMS ARE

NO DIFFERENT FROM OTHER

COMMONLY POSSESSED SEMIAUTOMATIC FIREARMS....................................... 9

II. THE BANNED FIREARMS

ARE NOT MORE LETHAL

THAN OTHER RIFLES ......................................... 12

III. THE BANNED FIREARMS ARE

RARELY USED TO COMMIT CRIMES

AND ARE NOT DISPROPORTIONATELY

USED IN MASS SHOOTINGS.............................. 15

A. Only a very small percentage

of homicides are committed

with rifles of any kind ...................................... 15

B. The banned firearms are

not disproportionately used

in mass shootings.............................................. 17

ii

IV. IN APPLYING ITS BALANCING

TEST, THE COURT OF APPEALS GAVE

ALMOST NO WEIGHT TO THE

LEGITIMATE USE OF THE BANNED

FIREARMS AND MAGAZINES FOR

HOME AND SELF DEFENSE .............................. 18

A. Firearms are frequently

used to repel criminal attacks .......................... 18

B. AR-15 platform rifles are

suitable for home defense ................................ 22

C. AR-15 platform rifles are in fact

effectively used for home defense .................... 24

V. MAGAZINES WITH A CAPACITY

OF OVER TEN ROUNDS ARE STANDARD

CAPACITY, NOT LARGE CAPACITY,

AND ARE TYPICALLY POSSESSED

BY LAW ENFORCEMENT AND

LAW-ABIDING CITIZENS FOR

LAWFUL PURPOSES ........................................... 26

CONCLUSION ....................................................... 28

iii

TABLE OF AUTHORITIES

Page

CASES

District of Columbia v. Heller,

554 U.S. 570 (2008) .................................5, 18, 20, 28

Gould v. Morgan,

907 F.3d 659 (1st Cir. 2018) .................................. 19

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................................ 5, 28

Staples v. United States,

511 U.S. 600 (1994) ................................................ 10

Stenberg v. Carhart,

530 U.S. 914 (2000) ................................................ 11

CONSTITUTIONS AND STATUTES

U.S. CONST., AMEND. II ....................... 7, 8, 17, 19, 28

G.L. c. 140 § 121 ....................................................... 8

G.L. c. 140 §131M..................................................... 8

iv

OTHER AUTHORITIES

Massad Ayoob, Finding the

Right Glock, COMPLETE

BOOK OF HANDGUNS (2013) .................................... 27

Jennifer Brett, ‘He had an AR-15,

but so did I.' Sutherland Springs

hero hailed by NRA, THE ATLANTA

JOURNAL-CONSTITUTION

(May 6, 2018) .......................................................... 25

Mary Chastain, 15-Year Old Boy

Uses AR-15 to Defend Himself,

Sister Against Home Invaders,

BREITBART.COM (Jan. 10, 2013) ............................. 25

PHILIP COOK & JENS LUDWIG,

GUNS IN AMERICA: RESULTS OF

A COMPREHENSIVE NATIONAL

SURVEY OF FIREARMS

OWNERSHIP AND USE (1996) ................................... 21

Brian Doherty, A Second Look at

a Controversial Study About Defensive

Gun Use, REASON (Sep. 4, 2018) ............................ 21

FBI UCR (2015), Table 20, Murder

by State, Types of Weapons, 2015 ......................... 16

FBI UCR (2016), Table 12, Murder

by State, Types of Weapons, 2016 ......................... 16

v

FBI UCR (2017), Table 20, Murder

by State, Types of Weapons, 2017 ......................... 16

FBI UCR (2018), Table 20, Murder

by State, Types of Weapons, 2018 ......................... 16

FBI UCR (2018), Table 8, Murder

Victims by Weapon, 2014-2018 ............................. 15

FoxNews, Killed in her sleep: Illegal

immigrants suspected in Mass. grandma's

death faced deportation (July 20, 2015) ................ 16

Homeowner shoots intruder in Vance

County break-in, WRAL.COM

(May 12, 2014) ........................................................ 26

Gary Kleck & Marc Gertz, Armed

Resistance to Crime: The Prevalence

and Nature of Self-Defense with a Gun,

86 J. Crim. L. & Criminol. 150 (1995) ................... 21

Bruce H. Kobayashi & Joseph E. Olson,

In Re 101 California Street, 8 STANFORD

LAW & POLICY REV. 41 (1997) ................................ 11

vi

William J. Krouse and Daniel J.

Richardson, Congressional

Research Service, Mass Murder with

Firearms: Incidents and Victims

1999-2013 (Jul. 30, 2015) ................................. 17, 18

MASSACHUSETTS MUNICIPAL POLICE

TRAINING COMMITTEE, BASIC

FIREARMS INSTRUCTOR COURSE:

PATROL RIFLE 3 (2007) ........................................... 22

Austin L. Miller, Summerfield

homeowner injured, kills 2 intruders

with AR-15, SARASOTA HERALD

TRIBUNE (Jul. 11, 2019) .......................................... 26

NSSF, MODERN SPORTING

RIFLE (MSR) COMPREHENSIVE

CONSUMER REPORT (2013) ...................................... 24

JOSH SUGARMANN, ASSAULT

WEAPONS AND ACCESSORIES

IN AMERICA (1988) ............................................ 11, 12

Tom W. Smith, A Call for

a Truce in the DGU War,

87 J. Crim. L. & Criminol. 1462 (1997) ................. 21

Avalon Zoppo, Oklahoma Man Uses

AR-15 to Kill Three Teen Home

Intruders, NBC NEWS (Mar. 28, 2017) .................. 25

1

INTEREST OF AMICI CURIAE1

National Association of Chiefs of Police

The mission of the National Association of Chiefs

of Police (“NACOP”), a non-profit organization

founded in 1967, is to promote and support the law

enforcement profession. Membership is limited to

command staff officers, and it currently has over

7,000 members. Among many other activities,

NACOP provides frequent handgun training for law

enforcement personnel and civilians.

Western States Sheriffs’ Association

The Western States Sheriffs’ Association was

established in 1993, and consists of more than three

hundred members from seventeen member states

throughout the Western United States. Its mission is

to assist sheriffs and their offices with federal and

state legislative issues, address policy and procedural

matters, and work together to keep the office of

sheriff strong.

California State Sheriffs’ Association

The California State Sheriffs’ Association is a

nonprofit professional organization that represents

1 No party’s counsel authored this brief in whole or in part.

No party or party’s counsel, and no person other than amici,

their members, or their counsel contributed money that was

intended to fund preparation or submission of this brief. Counsel

of record for all parties received timely notice of intent to file

this brief under Rule 37.2(a) and consent was granted by all

parties.

2

each of the fifty-eight California sheriffs. It was

formed to allow the sharing of information and

resources between sheriffs and departmental

personnel, in order to improve law enforcement

throughout the state.

California Reserve Peace Officers Association

The California Reserve Peace Officers Association

(“CRPOA”) was founded in 1974, and CRPOA

members dedicate their time to community service by

working as part-time employees with law

enforcement agencies both on a compensated and

non-compensated basis. Approximately 600 law

enforcement agencies currently employ more than

5,000 reserve law enforcement officers in California.

New Mexico Sheriffs’ Association

The New Mexico Sheriffs’ Association is a

professional and educational organization dedicated

to keeping the peace and to protecting the lives and

property of the citizens of New Mexico. The elected

New Mexico Sheriffs have the responsibility for

upholding the laws of the state of New Mexico and of

the United States of America, including the United

States Constitution and the Second Amendment. The

Association serves the people and communities of

New Mexico through professional assistance,

education, and unity.

International Law Enforcement Educators and

Trainers Association

The International Law Enforcement Educators

and Trainers Association (“ILEETA”) is an

3

association of 4,000 professional law enforcement

instructors committed to the reduction of law

enforcement risk, and to saving lives of police officers

and the general citizenry through the provision of

training enhancements for criminal justice

practitioners. ILEETA’s amicus briefs were cited in

District of Columbia v. Heller and in McDonald v.

Chicago.

Law Enforcement Legal Defense Fund

Law Enforcement Legal Defense Fund (“LELDF”)

is a 501(c)(3) non-profit organization, headquartered

in Alexandria, Virginia, that provides legal assistance

to law enforcement officers. LELDF has aided nearly

one hundred officers, many of whom have been

acquitted, mostly in cases where officers have faced

legal action for otherwise authorized and legal

activity in the line of duty.

San Francisco Veteran Police Officers

Association

The San Francisco Veteran Police Officers

Association is an organization that represents the

interests of veteran police officers in the City and

County of San Francisco, including the exercise of

their members’ rights to keep and bear arms under

the Second Amendment.

4

International Association of Law Enforcement

Firearms Instructors

The

International

Association

of

Law

Enforcement Firearms Instructors is a non-profit

association formed in 1981 whose 3,000-plus

members come from local, state, and federal law

enforcement agencies nationwide, including New

Jersey. It conducts approximately 20 police firearms

training events annually, and publishes authoritative

training standards and guidelines.

The following are groups that promote the

shooting sports, provide firearms safety training,

enhance marksmanship, educate the public about

firearms, and defend Second Amendment rights,

including the right of ordinary, law-abiding citizens

to obtain and use commonly-possessed firearms for

legitimate purposes such as self-defense: CRPA

Foundation, Connecticut Citizens Defense League,

Gun Owners of California, and New York State Rifle

& Pistol Association. These groups have numerous

members who are current or former law enforcement

officers.

Thus, amici are all organizations with members

who are law enforcement officers or that support law

enforcement officers and agencies. Amici believe that

the perspective of front line law enforcement

personnel should be of assistance to this Court in

evaluating whether any interest in public safety is

served by Massachusetts’ ban on widely possessed

semi-automatic firearms and standard capacity

magazines.

5

SUMMARY OF ARGUMENT

The court below refused to follow Heller and

McDonald, and wrongly employed an intermediate

scrutiny balancing test. This brief demonstrates that,

in utilizing that erroneous test, the First Circuit

opinion also made fundamental errors about the

nature of the banned firearms and magazines.

The ordinary, commonly possessed semiautomatics that Massachusetts mischaracterizes as

“assault weapons” function no differently than other

commonly possessed semi-automatic firearms that

have been lawfully possessed for well over a century.

They are not machine guns. Machine guns fire

continuously as long as the trigger is pulled or until

the gun runs out of ammunition. Semi-automatics, by

contrast, fire only a single shot with each pull of the

trigger, and require that the trigger be released and

pulled again to fire a second shot. Unlike machine

guns and a few other items regulated by the National

Firearms Act, AR-15s are among those firearms that,

under this Court’s jurisprudence, “traditionally have

been widely accepted as lawful possessions....”

So-called “assault weapons” are not defined as

such according to their function, but because their

military appearance is more likely to scare and

confuse the public (and perhaps even legislators) and

thus make them easier to ban. The name is a political

term, developed by anti-firearms activists.

The banned rifles do not pose “unique dangers”

and are not more lethal than other centerfire rifles.

Compared to rifle ammunition used to hunt deer and

6

other big game, the power of the .223/5.56mm

cartridge typically used in AR platform rifles is on the

low side for centerfire rifle cartridges. The .30-06

cartridge, used in WWI, WWII, and Korea, and which

remains a popular deer hunting cartridge, has over

twice the muzzle energy of the .223/5.56mm.

The banned firearms are rarely used to commit

crimes and are not disproportionately used in mass

shootings. In 2018, only 2.1% of homicides in the

United States were committed with rifles of any kind,

and “assault weapons” will constitute only a portion

of these. Far more homicides were committed that

year with blunt objects (3.1%), hands, fists, and feet

(4.8%), and knives and cutting instruments (10.7%).

In Massachusetts, one homicide was committed with

a rifle in 2015, and it was with a bolt-action hunting

rifle. In 2016, 2017, and 2018 the number of

homicides committed with a rifle of any kind was

zero.

A recent report by the Congressional Research

Service examined mass shooting data over a period of

15 years. It found that in only 31 out of 317 mass

shootings were firearms that “could” be characterized

as “assault weapons” used or even carried. That is

9.7%, or less than one in ten mass shootings, which

does not make them the “weapon of choice” as the

court below contended.

The court below discussed only the misuse of the

banned firearms, and did not even consider their

usefulness for legitimate defense. But the use of

firearms by ordinary people to repel criminal assaults

7

and thereby save innocent lives is a frequent

occurrence. Estimates of the frequency of defensive

gun uses range from several hundred thousand per

year to roughly two and a half million defensive uses.

AR platform rifles are suitable for home defense,

and are frequently superior to shotguns and

handguns, due to accuracy, sufficient power, less

overpenetration, greater ammunition capacity, ease

of handling, relatively mild recoil, and less muzzle

flash and muzzle blast. There are numerous reports

of ordinary citizens defending themselves and loved

ones from criminal home invasions using AR-15s.

The magazines that Massachusetts defines as

“large capacity” are in fact standard capacity.

According to data from the BATFE, the majority of

pistols (approximately 62%) currently manufactured

each year in the U.S. are designed to use magazines

with a standard capacity greater than 10 rounds.

About half of the 230 million magazines made in the

U.S. between 1990 and 2015 could hold more than 10

rounds. These magazines are clearly of the kind

typically possessed by law-abiding citizens for lawful

purposes, and are thus protected under the Second

Amendment.

8

ARGUMENT

This case challenges statutes that ban common

semi-automatic

firearms

that

Massachusetts

arbitrarily categorizes as “assault weapons,” and also

ban common magazines that are capable of holding

more than ten rounds of ammunition. G.L. c. 140 §§

121, 131M.

The court below refused to follow District of

Columbia v. Heller, 554 U.S. 570 (2008), and

McDonald v. City of Chicago, 561 U.S. 742 (2010), by

employing a two part balancing test to “balance away”

the Second Amendment rights of residents of

Massachusetts. Heller and McDonald should be

followed, and certiorari granted, for reasons stated in

the petition for certiorari.

In addition, as this brief demonstrates, in applying

an intermediate scrutiny balancing test the First

Circuit opinion made fundamental errors about the

nature of the banned firearms and magazines. Other

circuits, by utilizing intermediate scrutiny and

mistaken information, have similarly failed to protect

Second Amendment rights, including the right to own

commonly-possessed rifles and standard magazines.

Because of widespread misinformation broadcast by

interest groups and the media that claims that socalled “assault weapons” are somehow uniquely

dangerous, it is easy to form a misconception about

the nature of these firearms. It is the purpose of this

brief to show that the assertions and suppositions

employed by the court below to uphold the bans under

9

intermediate scrutiny are themselves incorrect and

fundamentally flawed.

I. THE

BANNED

FIREARMS

ARE

NO

DIFFERENT FROM OTHER COMMONLY

POSSESSED SEMI-AUTOMATIC FIREARMS.

So-called “assault weapons,” as Massachusetts

defines them, are not more dangerous or lethal than

other centerfire semi-automatic rifles.2 That is

because they are no different in the way in which they

function; the difference is in their appearance.

They are not machine guns. Machine guns fire

continuously as long as the trigger is pulled or until

the gun runs out of ammunition. Semi-automatics, by

contrast, fire only a single shot with each pull of the

trigger, and require that the trigger be released and

pulled again to fire a second shot. Semi-automatics,

whether rifles, shotguns, or pistols, have been in

common use for well over a century, JA470, and the

banned firearms function in the same manner as all

semi-automatics.

The banned AR and AK platform firearms are

merely an arbitrary subset of semi-automatic rifles.

As noted by firearms expert Jim Supica:

a semiautomatic firearm will fire only one

round with a single trigger pull, the same as

a single shot, double barrel, bolt action, pump

2

Of the firearms defined as “assault weapons” by

Massachusetts, rifles constitute the overwhelming majority in

terms of numbers of firearms in circulation.

10

action, lever action or revolving firearm. To

fire a subsequent round, the trigger must be

released and pulled again. These are not

military-style firearms--they are civilian

firearms. Although many semiautomatic

rifles look like fully automatic rifles, they are

functionally identical to other more

traditional

looking

commercial

semiautomatic rifles.

JA0471.

What Massachusetts calls “assault weapons” have

traditionally been considered to be firearms that can

be owned in perfect innocence. In Staples v. United

States, 511 U.S. 600, 603 (1994), this Court recognized

the fundamental distinction between machine guns

and semiautomatics:

The AR-15 is the civilian version of the

military's M-16 rifle, and is, unless modified,

a semiautomatic weapon. The M-16, in

contrast, is a selective fire rifle that allows

the operator, by rotating a selector switch, to

choose semiautomatic or automatic fire.

As the Staples court observed, machine guns are

heavily regulated and must be registered with the

federal government under pain of severe penalties.

Id. at 602-03. However, “guns generally can be owned

in perfect innocence.” Id. at 611. Unlike machine guns

and a few other items regulated by the National

Firearms Act, AR-15s are among those firearms that

“traditionally have been widely accepted as lawful

possessions....” Id. at 612.

11

So-called “assault weapons” are not defined as

such according to their function, but because their

military appearance is more likely to scare the public

(and perhaps even legislators) and thus make them

easier to ban. As Justice Thomas has noted in another

context, “Prior to 1989, the term ‘assault weapon’ did

not exist in the lexicon of firearms. It is a political

term, developed by anti-gun publicists….” Stenberg v.

Carhart, 530 U.S. 914, 1001 n.16 (2000) (Thomas, J.,

dissenting) (quoting Bruce H. Kobayashi & Joseph E.

Olson, In Re 101 California Street, 8 STANFORD LAW

& POLICY REV. 41, 43 (1997)).

In 1988, Josh Sugarmann, a firearms control

activist who is Executive Director of the Violence

Policy Center, explained why it would be easier to

demonize certain semi-automatics based on their

appearance and other extraneous factors:

[H]andgun restriction is simply not viewed as

a priority. Assault weapons … are a new

topic. The weapons’ menacing looks, coupled

with the public’s confusion over fully

automatic machine guns versus semiautomatic assault weapons—anything that

looks like a machine gun is assumed to be a

machine gun—can only increase the chance of

public support for restrictions on these

weapons.

JOSH

SUGARMANN,

ASSAULT

WEAPONS

AND

ACCESSORIES IN AMERICA, unpaginated Conclusion

(1988) (emphasis added). Mr. Sugarmann also

conceded that the “assault weapons” that he wanted

12

to ban were indistinguishable (except by appearance)

from ordinary semi-automatic firearms:

Defining an assault weapon—in legal

terms—is not easy. It’s not merely a matter of

going after guns that are “black and wicked

looking.”… [I]t’s extremely difficult to

develop a legal definition that restricts the

availability of assault weapons without

affecting legitimate semi-automatic guns.

Id. That is because there is no functional difference

between ordinary semi-automatic rifles and those

banned by some jurisdictions as so-called “assault

weapons.”

II. THE BANNED FIREARMS ARE NOT MORE

LETHAL THAN OTHER RIFLES.

The court below referenced the “unique dangers”

posed by the so-called “assault weapons.” App. 25. It

further referred to “the extensive evidence regarding

the lethality of the proscribed weapons….” App. 27.

The court’s opinion cited articles in which

physicians

were

interviewed,

and

provided

sensationalistic descriptions of the damage caused to

human bodies by so-called “assault weapons.” For

example, one physician was quoted as saying that:

“The tissue destruction is almost unimaginable.

Bones are exploded, soft tissue is absolutely

destroyed. The injuries to the chest or abdomen – it’s

like a bomb went off.” App. 26. However, the article

from which that statement is taken reveals that the

physician in question had “served in Iraq and

Afghanistan and is a lieutenant colonel in the Air

13

Force Reserve.” His observations were apparently

about wounds sustained in combat; there was no

indication he was talking about domestic shootings,

and no indication of what kinds of weapons inflicted

the wounds he was talking about.

More importantly, the lower court’s opinion almost

completely ignored the real basis for the severe

wounds that were described: these were wounds

inflicted by rifle rounds rather than pistol rounds.

Although there are several determinants regarding

how severe a gunshot wound may be, including bullet

(projectile) design and composition—which affect

penetration and expansion of the bullet—a

fundamental measure of power is the kinetic energy

of the bullet measured at the muzzle of the firearm,

commonly referred to as muzzle energy.3 

As shown by Mr. Supica’s expert report, muzzle

energy for standard size, centerfire handguns tends

to run at about 240 to 465 foot pounds. JA490. Muzzle

energy for AR platform rifles firing the .223 caliber

or 5.56mm cartridge is about 1180-1380 foot pounds.

Id.4 Compared to centerfire rifle ammunition used to

hunt deer and other big game, that muzzle energy is

actually on the low side. For example, the .30-06

cartridge, which was used in the main U.S. battle

3 Kinetic energy is usually measured in foot-pounds. Energy

at the muzzle (end of the barrel) is typically used because the

bullet sheds energy as it slows due to air resistance while

traveling downrange.

4 The difference between a .223 cartridge and a 5.56 x 45mm

cartridge is insignificant for purposes of this discussion.

14

rifles in WWI, WWII, and Korea, and which remains

a popular cartridge for deer hunting, tends to have

about 2,700 to 3,000 foot pounds of muzzle energy,

well over twice as much power as the .223 typically

used in AR platform rifles. Id. Far from being an

exceptionally lethal round, the .223 is substantially

less powerful than the cartridges used in most deer

hunting rifles.

The court’s opinion quoted an affidavit claiming

that semiautomatic assault weapons cause wounds

that “tend to be higher in complexity with higher

complication rates than those injuries from nonassault weapons. They tend to cause far greater

damage to the muscles, bones, soft tissue, and vital

organs.” App. 26. But just as there is no functional

definition of “assault weapon,” there is no functional

definition of “non-assault weapons.” Compared to the

.223 or 5.56mm cartridge typically used in AR-15

platform rifles, a bullet from a .22 caliber rimfire

cartridge (other things being equal) would generally

cause a less serious wound, as would a bullet from a

standard size handgun. But a bullet from a typical

deer hunting rifle (again, other things being equal)

would cause a greater wound, and a close range blast

from a 12 gauge shotgun loaded with buckshot would

cause an even greater and more complex wound yet.

In short, a comparison of “assault weapons” to “nonassault weapons” is meaningless.

15

III. THE BANNED FIREARMS ARE RARELY USED

TO COMMIT CRIMES AND ARE NOT

DISPROPORTIONATELY USED IN MASS

SHOOTINGS.

A. Only a very small percentage of homicides are

committed with rifles of any kind.

According to the Federal Bureau of Investigation,

the number of homicides committed in the United

States during 2018 was 14,123. Only 297, or 2.1%,

were committed with rifles of all types.5 Thus, though

commonly and legally possessed in the many millions,

rifles defined as “assault weapons” by Massachusetts

are probably used to commit less than 1% of the

homicides in this country. By contrast, far more

homicides were committed during that year with

“blunt objects” such as clubs and hammers (443, or

3.1%) than with all rifles. Id. More than twice as

many were committed with “personal weapons” such

as hands, fists, and feet (672, or 4.8%), and more than

five times as many using “knives or cutting

instruments” (1,515, or 10.7%), than were committed

with all rifles. Id.

Of the 136 murders committed in Massachusetts

in 2018, the number carried out with rifles of any

5 FBI UCR (2018), Table 8, Murder Victims by Weapon,

2014-2018, https://ucr.fbi.gov/crime-in-the-us/2018/crime-inthe-u.s.-2018/tables/expanded-homicide-data-table-8.xls. The

percentages for 2014-2017 are similar to 2018.

16

kind was zero.6 In 2017, of the 170 murders in

Massachusetts, the number carried out with rifles of

any kind was zero.7 In 2016, again there were zero

murders committed with rifles in Massachusetts, out

of 132 total.8 In 2015, there was one homicide with a

rifle.9 That rifle was reported to be a .270 caliber boltaction, which is not an “assault weapon” but a

traditional hunting rifle.10

It is no answer to say that this proves that the

Massachusetts ban has been effective. Substantial

numbers of the banned firearms were grandfathered.

In addition, according to respondents, “in 2015 alone,

between 8,000 and 10,000 assault weapons had been

sold in Massachusetts, despite the AWB” that were

nearly identical to the Colt AR-15 and AK47 but did

6 FBI UCR (2018), Table 20, Murder by State, Types of

Weapons, 2018, https://ucr.fbi.gov/crime-in-the-u.s/2018/crimein-the-u.s.-2018/tables/table-20.

7

FBI UCR (2017), Table 20, Murder by State, Types of

Weapons, 2017, https://ucr.fbi.gov/crime-in-the-u.s/2017/crimein-the-u.s.-2017/tables/table-20.

8

FBI UCR (2016), Table 12, Murder by State, Types of

Weapons, 2016, https://ucr.fbi.gov/crime-in-the-u.s/2016/crimein-the-u.s.-2016/tables/table-12.

9

FBI UCR (2015), Table 20, Murder by State, Types of

Weapons, 2015, https://ucr.fbi.gov/crime-in-the-u.s/2015/crimein-the-u.s.-2015/tables/table-20.

10 FoxNews, Killed in her sleep: Illegal immigrants suspected

in Mass. grandma's death faced deportation (July 20, 2015)

http://www.foxnews.com/us/2015/07/20/killed-in-her-sleepillegal-immigrants-suspected-in-mass-grandma-death-faced.

html.

17

not have the “features” that would have allowed them

to be banned. Def. S.J. Mem. 4; JA0716. Comparable

numbers were sold in 2014 and 2013. JA0716. If

roughly 10,000 were being sold annually, the

aggregate number including preceding years must be

in the hundreds of thousands. Yet, despite these large

numbers, rifles of any kind are almost never used to

commit murders in Massachusetts. Rather than

presenting “unique dangers,” App. 25, the banned

firearms are of the kind “typically possessed by lawabiding citizens for lawful purposes” that are

protected by the Second Amendment. Heller, 554 U.S.

at 625.

B. The banned firearms are not disproportionately

used in mass shootings.

The court below relied heavily on the theory that

Massachusetts can ban these firearms because, in its

view, “AR-15s equipped with LCMs have been the

weapons of choice in many of the deadliest mass

shootings in recent history,” citing seven shootings

over a period of seven years. App. 25. However, when

actual data are examined, it turns out that AR-15s or

other putative “assault weapons” are not

disproportionately used in mass shootings.

A recent report by the Congressional Research

Service uses the FBI definition of “mass shooting”: a

“multiple homicide incident in which four or more

victims are murdered with firearms—not including

the offender(s)—within one event, and in one or more

locations in close geographical proximity.” William J.

Krouse and Daniel J. Richardson, Congressional

18

Research Service, Mass Murder with Firearms:

Incidents and Victims 1999-2013 13 (Jul. 30, 2015)

(“CRS Report”).

“Assault weapons,” despite their overall

prevalence, are infrequently used in mass shootings.

The CRS Report states that in only 31 out of 317 mass

shootings were firearms that “could” be characterized

as “assault weapons” used or even carried. That is

9.7%, or less than one in ten mass shootings, even if

the report’s apparently broad assumptions about

what constitutes an “assault weapon” are accepted.11

CRS Report 16, 29. Presence in less than one out of

ten mass shootings does not make them the “weapons

of choice” in such shootings.

IV. IN APPLYING ITS BALANCING TEST, THE

COURT OF APPEALS GAVE ALMOST NO

WEIGHT TO THE LEGITIMATE USE OF THE

BANNED FIREARMS AND MAGAZINES FOR

HOME AND SELF DEFENSE.

A. Firearms are frequently used to repel criminal

attacks.

One of the reasons, at least, that Heller rejected

the use of a balancing test—especially a watered

11 The report does not define “assault weapon.” The authors

cast the net widely, including instances in which the offenders

had firearms “that could be characterized as ‘assault weapons’

in that they carried rifles or pistols capable of accepting

detachable magazines that might have previously fallen under

the 10-year, now-expired federal assault weapons ban….” Id. at

16 (emphasis added).

19

down version such as the First Circuit employed—is

that it allows courts rather than the text of the

Constitution to determine whether an enumerated

constitutional right is worthy of protection.

The circuit court’s opinion seems to assume that

the principal use of the banned firearms is to conduct

criminal attacks.12 When plaintiffs suggested that AR

platform rifles are useful for home defense the court,

rather than taking that argument seriously, simply

dismissed it as “too facile by half.”

Indeed, the court’s language showed that, in its

view, whether the Second Amendment actually

protects ordinary firearms commonly possessed by

law-abiding citizens for lawful purposes is a policy

question that is still up for grabs. The opinion

observed that “[i]n dealing with a complex societal

problem like gun violence, there will almost always be

room for reasonable minds to differ about the optimal

solution….” (quoting Gould v. Morgan, 907 F.3d 659,

676 (1st Cir. 2018), petition for cert. pending sub nom

Gould v. Lipson, No. 18-1272). Quoting Gould again,

it noted that “the plaintiffs give unduly short shrift to

‘the legislature’s prerogative ... to weigh the evidence,

choose among conflicting inferences, and make the

necessary policy judgments.’ id.”

But the Second Amendment clearly states that the

“right of the people to keep and bear arms shall not

12 “Semiautomatic assault weapons permit a shooter to fire

multiple rounds very quickly, allowing him to hit more victims

in a shorter period of time.” App. 25 (emphasis added).

20

be infringed,” and as this Court has held, “the

enshrinement of constitutional rights necessarily

takes certain policy choices off the table.” Heller, 554

U.S. 636.

The very enumeration of the right takes out

of the hands of government—even the Third

Branch of Government—the power to decide

on a case-by-case basis whether the right is

really worth insisting upon. A constitutional

guarantee subject to future judges’

assessments of its usefulness is no

constitutional guarantee at all.

Id. at 634. The same is true of “policy judgments” by

state legislatures.

But even if balancing were to be allowed, the

opinion below discussed only the misuse of the

banned firearms, and did not even consider their

usefulness for legitimate defense.

As is well-known to law enforcement, the use of

firearms by ordinary people to repel criminal assaults

and thereby save innocent lives is a frequent

occurrence.

The number of these defensive gun uses (“DGUs”)

per year can only be estimated, but a number of

studies have tried to do just that. Gary Kleck and

Mark Gertz conducted an especially thorough survey

in 1993, with stringent safeguards to weed out

respondents who might misdescribe or misdate a

21

DGU report. Kleck and Gertz found results indicating

between 2.2 and 2.5 million DGUs annually.13

Philip Cook of Duke University and Jens Ludwig

of Georgetown University were skeptical of Kleck’s

results, so they conducted their own survey for the

Police Foundation. That survey produced an estimate

of 1.46 million DGUs.14 In the mid-1990s, the Centers

for Disease Control did well-designed research

(though they did not publicize the results) that

supports a finding of something over 1 million DGUs

a year.15 The National Opinion Research Center

argues that the actual annual DGU figure is in the

range of 256,500 to 1,210,000.16 In other words, by

almost all measures, the use of firearms in defense of

self, home, or others is very frequent.

13 Gary Kleck & Marc Gertz, Armed Resistance to Crime: The

Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L.

& Criminol. 150 (1995). The Kleck/Gertz survey found that a

large majority of defensive uses do not involve firing the weapon,

but merely displaying it to deter an attacker. Id. at 175

14 PHILIP COOK & JENS LUDWIG, GUNS IN AMERICA: RESULTS

OF A COMPREHENSIVE NATIONAL SURVEY OF FIREARMS

OWNERSHIP AND USE 73 (1996), https://www.Policefoundation

.org/wp-content/uploads/2015/06/Cook-et-al.-1996-Guns-inAmerica.pdf

15 Brian Doherty, A Second Look at a Controversial Study

About Defensive Gun Use, REASON (Sep. 4, 2018),

https://reason.com/2018/09/04/what-the-cdcs-mid-90s-surveyson-defensi.

16 Tom W. Smith, A Call for a Truce in the DGU War, 87 J.

Crim. L. & Criminol. 1462 (1997).

22

B. AR-15 platform rifles are suitable for home

defense.

AR-15 platform rifles are preferred by law

enforcement and civilians for several important

reasons. A training course in the Patrol Rifle (AR-15)

for Massachusetts Municipal Police states:

The [AR-15] rifle is a superior tool. It allows

the officer to either stand off from the threat

or, if the situation requires, advance to the

threat with the confidence that the tool in

their hands can deal with almost any

perceived threat.

MASSACHUSETTS MUNICIPAL POLICE TRAINING

COMMITTEE,

BASIC FIREARMS INSTRUCTOR

COURSE: PATROL RIFLE 3 (2007).

After noting that the AR-15 platform has

sufficient power and “a larger magazine capacity

than our service pistol or shotgun,” the course manual

states that: “The longer sight radius makes it

potentially a more accurate weapon which lowers the

liability to the department.” Id. The longer sight

radius resulting in increased accuracy also benefits

civilians. The AR-15 platform is also far easier to

shoot accurately than a handgun because it is

stabilized against the shoulder, and handguns

require more training and technique to shoot with

accuracy. App. 146.

Additional reasons that both law enforcement and

civilians prefer the AR-15 platform include:

23

The .223 (5.56mm) ammunition for which most AR

platform rifles are chambered is adequate but not too

powerful for home defense, and superior to most

pistol cartridges. App. 144-145, 160. Ballistics expert

Buford Boone III was for 15 years the primary

Supervisory Special Agent with oversight of the FBI’s

Ballistic Research Facility (BRF). App. 141. The BRF

is responsible for testing and evaluating all

ammunition, firearms, and body armor used

operationally by the FBI. Id. Mr. Boone notes:

The penetration range of … .223/5.56mm

ammunition, as shown in testing conducted

by the FBI and other agencies, is 12–18”. This

is the range which the FBI has determined is

the most desirable for effectiveness.

App. 145. At the same time, “as proven by numerous

tests, including those by the FBI and BATFE,

.223/5.56mm ammunition fired from a semiautomatic

rifle is less likely to over-penetrate human tissue or

intermediate barriers and then pose a hazard to

innocent bystanders compared to ammunition fired

from many other types of firearms, such as handguns

and those commonly used for hunting.” App. 161. It is

also less likely than effective shotgun ammunition to

overpenetrate. App. 147. This is an important

consideration in law enforcement work, and to

citizens acting in defense of their homes where there

may be other family members present.

AR platform rifles are relatively lightweight, App.

145, and may be shorter than many traditional woodstocked hunting rifles or most shotguns. That makes

24

them more maneuverable, for law enforcement

officers and civilian home defense, in the tight spaces

of a home. App. 145-46.

Recoil is relatively mild in its most common

chambering (.223/5.56mm). App. 146. Recoil, muzzle

flash (light from powder burning outside the barrel),

and muzzle blast (noise) will be less than with more

powerful rifles. This minimizes temporary blindness

in dark conditions and disorientation caused by a

firearm’s loud report in an enclosed area.

For reasons such as these, large numbers of law

enforcement officers purchase AR-15 platform or AK

pattern rifles for their own private ownership at

home. According to a large scale survey conducted by

the National Shooting Sports Foundation (“NSSF”),

11% of private owners of modern sporting rifles or

MSRs (a category that includes AR-15 and AK pattern

rifles) had a law enforcement background. NSSF,

MODERN SPORTING RIFLE (MSR) COMPREHENSIVE

CONSUMER REPORT 12 (2013). Of these, half were

active law enforcement officers, and half were

retired. Id. For respondents with a military or law

enforcement background, “home defense” was the

second most important reason (8.35 on a scale of 10)

for owning an MSR, just slightly lower than

“recreational target shooting” (8.86). Id. (unpaginated

cross-tabulation tables).

C. AR-15 platform rifles are in fact effectively

used for home defense.

The court below contended that “when asked

directly, not one of the plaintiffs or their six experts

25

could identify even a single example of the use of an

assault weapon for home self-defense….” App. 20.

But not only are AR-15 platform rifles suitable for

home defense, they are in fact effectively used for

that purpose. Following are some recent examples.

In a subdivision just outside Houston, a 15 year

old boy used an AR-15 to protect himself and his 13

year old sister against two intruders who had broken

into their home, hitting one adult invader with three

shots.17 Following the Sutherland Springs, Texas,

church shooting, a citizen retrieved his own AR-15,

ran to the scene, and shot the attacker (who later

died) as he exited the church.18

In Oklahoma, a homeowner’s 23 year old son with

an AR-15 shot and killed three home invaders dressed

in black with black masks and gloves, at least two of

whom were armed.19 A homeowner in Henderson,

North Carolina, grabbed his AR-15 from under the

17 Mary Chastain, 15-Year Old Boy Uses AR-15 to Defend

Himself, Sister Against Home Invaders, BREITBART.COM (Jan.

10, 2013); https://www.breitbart.com/politics/2013/01/10/15year-old-boy-uses-ar-15-to-defend-house-against-burglars/.

18 Jennifer Brett, ‘He had an AR-15, but so did I.' Sutherland

Springs hero hailed by NRA, THE ATLANTA JOURNALCONSTITUTION (May 6, 2018), https://www.ajc.com/blog/buzz/had

-but-did-sutherland-springs-hero-hailed-nra/QAO2FwB8GcBB

Ndrax 24lGO/.

19 Avalon Zoppo, Oklahoma Man Uses AR-15 to Kill Three

Teen Home Intruders, NBC NEWS (Mar. 28, 2017), https://www.

nbcnews.com/news/us-news/oklahoma-man-uses-ar-15-killthree-teen-home-intruders-n739541.

26

bed and surprised an armed intruder who had kicked

in the door to his house. Both men fired but the

homeowner connected, and the intruder ran outside

and collapsed across the street where he and an

accomplice were apprehended by police.20

In July of 2019, a 61 year old disabled veteran was

attacked in his home by four armed intruders who

intended to rob him. The homeowner was shot once

and hospitalized in stable condition, but he killed two

of the attackers with his AR-15 and the police

apprehended the two who survived.21

It is erroneous to dismiss out of hand, as the court

below did, the fact that firearms of this kind are

useful for defense of home and innocent life.

V. MAGAZINES WITH A CAPACITY OF OVER TEN

ROUNDS ARE STANDARD CAPACITY, NOT

LARGE CAPACITY, AND ARE TYPICALLY

POSSESSED BY LAW ENFORCEMENT AND

LAW-ABIDING CITZENS FOR LAWFUL

PURPOSES.

Beginning in the 1970s, law enforcement agencies

and civilians alike began to replace revolvers as their

20

Homeowner shoots intruder in Vance County break-in,

WRAL.COM (May 12, 2014), https://www.wral.com/homeownershoots-intruder-in-vance-county-break-in/13638825/.

21 Austin L. Miller, Summerfield homeowner injured, kills 2

intruders with AR-15, SARASOTA HERALD TRIBUNE (Jul. 11,

2019), https://www.heraldtribune.com/news/20190711/summer

field-homeowner-injured-kills-2-intruders-with-ar-15.

27

preferred sidearms with semi-automatic pistols.

Firearms, tactics, and police expert Massad Ayoob

notes that the first Glock, the Glock 17 chambered for

9mm ammunition, established itself as “a ‘service

pistol’ par excellence.”22 The Glock 17 holds 17 rounds

“in its standard magazine.” Id. Not long after, the

Glock 22 was introduced, chambered for the .40

caliber S & W round. “Its standard magazine capacity

is 15.” Id. At the time Mr. Ayoob was writing, it was

“believed to be in use by more American police

departments than any other….” Id.

Besides being “the most popular police handgun in

America,” the Glock pistol is also “hugely popular for

action pistol competition and home and personal

defense.” Id. at 90. Nearly all major handgun

manufacturers produce semi-automatic handguns

with standard magazine capacities over 10 rounds—

Ruger, Smith & Wesson, Glock, Beretta, Heckler &

Koch, Springfield Armory, CZ, SIG-Sauer, Browning,

and others.

According to data from the BATFE, the majority

of

pistols

(approximately

62%)

currently

manufactured each year in the U.S. are designed to

use magazines with a standard capacity (the number

of cartridges the firearm was designed to operate

with) greater than 10 rounds. App. 164. Magazines

holding over ten rounds are also standard capacity for

the AR-15 platform rifle. App. 176-77; JA0706.

22 Massad Ayoob, Finding the Right Glock, COMPLETE BOOK

OF HANDGUNS 87 (2013).

28

As stated by FBI firearms expert Boone:

I am unaware of any US law enforcement

agency that issues AR-15 magazines of less

than 20 round capacity. And, in my

experience, 20 round magazines are the

exception; 30 round magazines are the norm.

It can only be concluded that US law

enforcement believes that 30 round

magazines are the most appropriate choice

for defensive purposes when using an AR-15

rifle.

App. 148-49.

Between 1990 and 2015, Americans owned

approximately 114,700,000 of these magazines of

over 10 round capacity, accounting for approximately

50% of all magazines owned during this time

(approximately 230,000,000).

In brief, Massachusetts has banned half or more

of existing magazines for rifles and pistols by calling

them “large capacity” when in fact they are standard

capacity. They are commonly possessed by lawabiding citizens for lawful purposes in the vast

majority of states, and are thus protected under the

Second Amendment as interpreted by this Court in

Heller and McDonald.

CONCLUSION

The petition for certiorari should be granted.

29

Respectfully submitted,

DAN M. PETERSON*

DAN M. PETERSON PLLC

3925 CHAIN BRIDGE ROAD

SUITE 403

FAIRFAX, VIRGINIA 22030

(703) 352-7276

dan@danpetersonlaw.com

*Counsel of Record

C. D. MICHEL

SEAN BRADY

ANNA MARIE BARVIR

MICHEL & ASSOCIATES, P.C.

180 EAST OCEAN BLVD.

SUITE 200

LONG BEACH, CA 90802

(562) 216-4444

cmichel@michellawyers.com

October 25, 2019