Amicus Curiae Brief — Dominic Bianchi, et al., Petitioners v. Brian Frosh, Attorney General of Maryland, et al.

No. 21-902

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------DOMINIC BIANCHI, et al.,

Petitioners,

v.

BRIAN E. FROSH, in his official capacity as

Attorney General of Maryland, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

---------------------------------♦--------------------------------AMICI CURIAE BRIEF OF SAN DIEGO

COUNTY GUN OWNERS POLITICAL ACTION

COMMITTEE, CALIFORNIA GUN RIGHTS

FOUNDATION, POWAY WEAPONS AND GEAR,

JAMES MILLER, WENDY HAUFFEN, AND

JOHN PHILLIPS IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------JOHN W. DILLON

DILLON LAW GROUP APC

2647 Gateway Road

Suite 105, No. 255

Carlsbad, CA 92009

(760) 642-7150

jdillon@dillonlawgp.com

GEORGE M. LEE

Counsel of Record

SEILER EPSTEIN LLP

275 Battery Street

Suite 1600

San Francisco, CA 94111

(415) 979-0500

gml@seilerepstein.com

Counsel for Amici Curiae

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

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

ii

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

1

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

3

ARGUMENT ........................................................

5

I.

This Court Should Grant Review to Stop

Lower Courts from Ignoring Established

Precedent Set By Heller and McDonald ....

5

A. The District Court in Miller v. Bonta

Applied the Correct “Heller Test” to

Bans on Commonly Owned Arms ........

7

1. Numerical Analysis ........................ 12

2. Jurisdictional Analysis ................... 15

B. Modern Rifles Are Not “Dangerous

and Unusual” Arms but Are Ideal for

Self-Defense ......................................... 18

1. Modern Rifles Are Ideal for Women

and Those of Smaller Stature ......... 21

C. Modern Rifles Are Ideal for Militia

Service ................................................. 22

CONCLUSION..................................................... 25

ii

TABLE OF AUTHORITIES

Page

CASES

Caetano v. Massachusetts,

577 U.S. 411, 136 S.Ct. 1027 (2016) .................. passim

District of Columbia v. Heller,

554 U.S. 570 (2008) ......................................... passim

Duncan v. Becerra,

366 F. Supp.3d 1131 (S.D. Cal. 2019),

aff ’d, 970 F.3d 1133 (9th Cir. 2020) .................. 7, 8, 9

Friedman v. City of Highland Park,

784 F.3d 406 (7th Cir. 2015) ................................ 7, 10

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) (“Heller II”) .... passim

Kolbe v. Hogan,

849 F.3d 114 (4th Cir. 2017) ............................ passim

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................... 2, 3, 5, 6, 8

Miller v. Bonta,

542 F. Supp.3d 1009 (S.D. Cal. June 4, 2021) ... passim

New York State Rifle &

Pistol Ass’n, Inc. v. Cuomo,

804 F.3d 242 (2d Cir. 2015) (“NYSRPA I”).......... 8, 13

Staples v. United States,

511 U.S. 600 (1994) ............................................. 4, 16

United States v. Miller,

307 U.S. 174 (1939) ......................................... passim

iii

TABLE OF AUTHORITIES—Continued

Page

STATUTES

Md. Code Ann., Crim. Law § 4-302 ..............................3

Md. Code Ann., Crim. Law § 4-303(b) ..........................3

Violent Crime Control and Law Enforcement

Act of 1994 (Pub. L. 103-322), 103rd Cong.

(1994) .......................................................................16

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INTEREST OF AMICI CURIAE1

The San Diego County Gun Owners Political

Action Committee (SDCGO) is a diverse and inclusive 1,300+ member political organization. SDCGO is

dedicated to preserving and restoring citizens’ Second

Amendment rights. It has developed a strong, permanent foundation that focuses on changing the face of

firearm ownership and use by collaborating with volunteers in state and local activities and outreach.

Since its beginning in 2015, SDCGO has profoundly influenced and advanced policies protecting the Second

Amendment. SDCGO’s primary focus is on expanding

and restoring Second Amendment rights within San

Diego County and in California due to an aggressive

and largely successful legislative and regulatory effort

to significantly limit or eliminate the firearms industry

and the ownership and use of various arms at the

state, county, and municipal levels.

California Gun Rights Foundation (“CGRF”)

was founded by long-time civil rights activists in California to counter the marginalization of gun owners

and combat civilian disarmament. It is a 501(c)(3) nonprofit organization that serves its members, supporters, and the public through education, cultural, and

judicial efforts to advance Second Amendment and

1

Counsel of record for all parties received notice of amici curiaes’ intent to file at least ten days prior to this brief ’s due date

and provided written consent to the filing of this brief. See Sup.

Ct. R. 37.2(a). No counsel for any party authored this brief in

whole or in part. No person, other than amici curiae, contributed

money intended to fund the brief ’s preparation and submission.

2

related civil rights. CGRF has held governments accountable to the Constitution and the law in matters

that directly affect the rights of law-abiding gun owners through its legal action, education, and research

programs. CGRF has also filed important supporting

amicus briefs in lawsuits filed in court across the nation, including the landmark McDonald v. Chicago

case before the United States Supreme Court. CGRF

defends and advances freedom and individual liberties—including the fundamental right to keep and

bear arms—and promotes sound, principled, and constitutionally-based public policy. CGRF respectfully

believes that its substantial experience and expertise

in the Second Amendment field would aid this Court.

SDCGO, CGRF, James Miller, Wendy Hauffen, John Phillips, and Poway Weapons and Gear

(collectively “Amici”) are some of the plaintiffs in Miller v. Bonta, a Second Amendment challenge to California’s Assault Weapon Control Act (“AWCA”). 542

F. Supp.3d 1009 (S.D. Cal. June 4, 2021). There, Amici

successfully argued in the district court that, just like

Maryland’s assault weapon ban, California’s AWCA

was a categorical prohibition on commonly owned

arms with common characteristics, and thus was unconstitutional under both the “Heller test” and the

Ninth Circuit’s two-step levels-of-scrutiny test. Amici’s

case, now on appeal, has been stayed pending the outcome of Rupp v. Becerra and this Court’s decision in

New York State Rifle & Pistol Ass’n, Inc., et al. v. Bruen.

This case concerns Amici because it directly impacts

their own challenge to a state’s assault weapons ban,

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and their ability to exercise their right to keep and

bear arms. Amici had the benefit of litigating this specific Second Amendment issue through a bench trial

and believe that their experience and evidence would

aid this Court.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

At issue is Maryland’s categorical ban on common

semiautomatic rifles, dubiously deemed “assault weapons” pursuant to Md. Code Ann., Crim. Law §§ 4-302,

4-303(b). Like California’s Assault Weapons Control

Act (“AWCA”), Maryland bans so-called “assault weapons” based on their characteristics such as magazine

capacity, detachable magazines, folding stocks, flare

launchers, and flash suppressors. Maryland’s categorical prohibition was upheld en banc by the Fourth Circuit in Kolbe v. Hogan on the inaccurate assertion

that commercial, commonly owned AR-15 rifles were

deemed sufficiently like M-16 rifles, “i.e., weapons that

are most useful in military service,” to take them outside the protections of the Second Amendment. 849

F.3d 114, 136 (4th Cir. 2017).

The Fourth Circuit’s novel standard of review is

another addition to the number of lower federal court

cases that have affirmatively rejected the clear categorical analysis proscribed by this Court in District of

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

v. City of Chicago, 561 U.S. 742 (2010). In sharp contrast, the court in Amici’s case, Miller v. Bonta, applied

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proper review standard, using the “hardware test” and

asking the simple question: Does the law ban a firearm

commonly owned by law-abiding citizens for lawful

purposes? This test draws a distinction between commonly owned arms for lawful purposes and arms that

are both dangerous and unusual, such as arms solely

useful for military purposes (e.g., grenades, missiles).

If the law bans commonly owned arms, the law is unconstitutional. End of analysis. Miller v. Bonta, 542

F. Supp.3d 1009, 1021 (S.D. Cal. June 4, 2021).

This Court also identified the proper means for determining “common use” in Caetano v. Massachusetts,

577 U.S. 411 (2016). In Miller, Amici showed that modern rifles are commonly owned under every metric

used for determining common use. For example, a numerical analysis proved beyond doubt that modern rifles are commonly owned in the tens of millions, and a

jurisdictional analysis showed that modern rifles are

lawfully owned in the vast majority of states.

Like the assault weapons ban in California, Maryland’s ban prohibits common arms with common characteristics that make firearms safer, more accurate,

better suited for different statures and body types, and

ideal for both individual self-defense and militia service. These firearms are used for a variety of lawful

purposes including self-defense, recreation, hunting,

target shooting, and sport. They are legal in 44 states

and “traditionally have been widely accepted as lawful

possessions.” Staples v. United States, 511 U.S. 600, 612

(1994).

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This Court should grant review. For over a decade,

lower courts have ignored or misconstrued the text of

the Constitution, the binding precedent of this Court,

and the relevant history and tradition to improperly

uphold bans on constitutionally protected arms in common use. This case presents the Court with the opportunity to instruct the lower courts on the proper

standard of review in Second Amendment cases challenging the constitutionality of laws prohibiting commonly-possessed firearms. With federal circuit courts

and state courts producing at least five separate and

conflicting ways of analyzing laws that ban arms in

common use for lawful purposes, it is imperative that

this Court grant the petition, and apply the categorical

test under Heller to prevent any further erosion of this

Court’s holdings.

---------------------------------♦---------------------------------

ARGUMENT

I.

This Court Should Grant Review to Stop

Lower Courts from Ignoring Established

Precedent Set By Heller and McDonald.

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. It “guarantees the right to carry weapons ‘typically possessed

by law-abiding citizens for lawful purposes.’ ” Caetano,

136 S.Ct. at 1030 (Alito, J., concurring). “A weapon

may not be banned unless it is both dangerous and unusual.” Id. at 1031. When analyzing whether an arm or

6

weapon is “unusual,” Justice Alito emphasized 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 1030 (Alito, J., concurring) (quoting Heller, 554

U.S. at 582). Thus, even if an arm was not in existence

during the Founding era, it does not mean the weapon

is “unusual.” The Second Amendment guarantee also

includes a right to keep and bear arms that have “some

reasonable relationship to the preservation or efficiency of a well-regulated militia.” United States v. Miller, 307 U.S. 174, 178 (1939).2 Importantly, where a

“weapon belongs to a class of arms commonly used for

lawful purposes,” “the relative dangerousness of a

weapon is irrelevant.” Caetano, 136 S.Ct. at 1031

(Alito, J., concurring) (citing Heller, 554 U.S. at 627,

emphasis added).

Despite this Court’s precedent in Heller and

McDonald, lower courts have established their own

standards of review when analyzing bans on commonly

owned arms. For example, the Ninth Circuit implements a two-step level of scrutiny test most akin to a

sliding-scale interest balancing test. The Seventh Circuit determines the constitutionality of categorical

bans on arms by asking whether a law bans weapons

that were common at the time of ratification or those

that have some reasonable relationship to the preservation or efficiency of a well-regulated militia, and

2

United States v. Miller supports the common use test, as it

would imply protection of the right to keep firearms in common

use that are useful for militia purposes.

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whether law-abiding citizens retain adequate means of

self-defense. Friedman v. City of Highland Park, 784

F.3d 406, 410 (7th Cir. 2015). The Fourth Circuit asks

whether the arms “are ‘like’ M16 rifles” and “clearly

most useful in military service.” Kolbe, 849 F.3d at 126,

137. Not only were these tests not applied in Heller,

they explicitly contradict the analysis in Heller. In contrast to other lower courts, the district court in Amici’s

case, Miller v. Bonta, properly applied the appropriate

test to categorical bans on common arms after a full

trial on the merits. Using the “Heller test,” the court

found that bans on commonly owned arms are categorically unconstitutional. This Court should grant Petitioners’ writ, apply the “Heller test” to Maryland’s

“assault weapons” ban, and correct the inconsistent

and grasping standards applied to Second Amendment

claims in the lower courts.

A. The District Court in Miller v. Bonta

Applied the Correct “Heller Test” to

Bans on Commonly Owned Arms.

“The Second Amendment extends, prima facie, to

all instruments that constitute bearable arms.” Heller, 554 U.S. at 582 (emphasis added). As stated in Heller, the right to keep and bear arms is a right enjoyed

by all law-abiding citizens to keep and bear arms that

are “in common use” “for lawful purposes like selfdefense.” Heller, 554 U.S. at 624. The district court in

Duncan described this analysis as “a hardware test.”

“Is the firearm hardware commonly owned? Is the

hardware commonly owned by law-abiding citizens? Is

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the hardware owned by those citizens for lawful purposes? If the answers are ‘yes,’ the test is over. The

hardware is protected.” Duncan v. Becerra, 366 F. Supp.3d

1131, 1142 (S.D. Cal. 2019), aff ’d, 970 F.3d 1133 (9th

Cir. 2020); see also Miller v. Bonta, 542 F. Supp.3d at

1020-21. “In other words, it identifies a presumption in

favor of Second Amendment protection, which the

State bears the initial burden of rebutting.” New York

State Rif le & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d

242, 257 n.73 (2d Cir. 2015) (“NYSRPA I”). Thus, in

NYSRPA I, the Second Circuit struck a ban on a pumpaction rifle because the state focused exclusively on

semiautomatic weapons and “the presumption that the

Amendment applies remain[ed] unrebutted.” Id.

Once it is determined that the Second Amendment

applies to a particular type of arm, it is unconstitutional for the government to ban it. This flows directly

from Heller, which categorically struck down the District of Columbia’s handgun ban. Indeed, this is precisely how this Court described Heller’s holding in

McDonald: because “we found that [the Second Amendment] right applies to handguns,” the Court explained,

“we concluded, citizens must be permitted to use handguns for the core lawful purposes of self-defense.”

McDonald, 561 U.S. at 767 (cleaned up).

Here, the arms that Maryland bans are presumptively protected under Heller’s analysis, and the State

could not rebut that presumption. Citizens must be

permitted to possess and use those arms for the core

lawful purpose of self-defense, and Maryland’s ban

of those arms is unconstitutional. In Caetano v.

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Massachusetts, Justice Alito’s concurring opinion

stated that “[t]he more relevant statistic is that ‘[h]undreds of thousands of Tasers and stun guns have been

sold to private citizens,’ who it appears may lawfully

possess them in 45 States. [ . . . ] While less popular

than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the

country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.” 136

S.Ct. at 1032-33.

Thus, this Court’s test for commonality involves a

nationwide inquiry. Indeed, the Second Amendment

does not mean different things in different parts of

the United States. The Heller analysis asks simply

whether the arms are “both dangerous and unusual,”

Caetano, 136 S.Ct. at 1031 (Alito, J., joined by Thomas,

J., concurring) (italics original), and if they are not

both, it determines if the category of arms are in common use for lawful purposes. Duncan v. Becerra, 366

F. Supp.3d at 1142. The text of the Second Amendment, as it is informed by history and tradition, all

point in the same direction because “the pertinent Second Amendment inquiry is whether [the banned weapons] are commonly possessed by law-abiding citizens

for lawful purposes today.” Caetano, supra, at 1032

(italics original).

The arms banned as “assault weapons” under

Maryland law are not both dangerous and unusual, as

the Supreme Court defined in Heller. To the contrary,

they are common in all respects: (1) they are common

functionally, as they are all semiautomatic in their

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operation; (2) they are common characteristically, as

they are all commercially popular types of arms with

various common characteristics like detachable magazines and folding stocks; and (3) they are common jurisdictionally, available in the vast majority of states.

As further proof, they are common numerically, in that

they are owned by tens of millions of citizens throughout the United States.

While numerical data are entirely sufficient to

determine if a particular weapon is commonly used

for lawful purposes (especially considering the overwhelming numbers of modern rifles in the U.S.), it

must be acknowledged that the constitutionally protected status of arms cannot turn on fact-bound sales

numbers of specific makes, models, or even specific configurations. Said differently, courts must be aware that

a pure statistical analysis can be misleading; in the

context of the Second Amendment, an unchallenged

unconstitutional law prohibiting arms may be the sole

cause that an arm is not common in the first place. “[I]t

would be absurd to say that the reason a particular

weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional

validity.”) Friedman, 784 F.3d at 409. Thus, when an

arm is numerically uncommon because of a government bans, or even a new market technology/design,

the government bears the burden of demonstrating

that there is something about that arm that makes it

qualitatively more dangerous than typical firearms.

Thus, this Court can also consider the number of

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jurisdictions that allow for the lawful possession and

carrying of such arms and their lawful use for all lawful purposes, including but not limited to, self-defense.

The question should focus on a categorical analysis of type and function, set against a backdrop of permissibility and availability throughout the United

States. “While less popular than handguns, stun guns

are widely owned and accepted as a legitimate means

of self-defense across the country.” Caetano, 136 S.Ct.

at 1033 (2016) (Alito, J., concurring). So too are semiautomatic modern rifles in various configurations and

characteristics which Maryland prohibits. These firearms are commonly used by responsible, law-abiding

citizens for various lawful purposes such as selfdefense, hunting, recreation, competition, and collecting. Miller v. Bonta, 542 F. Supp.3d at 1020-23, 1033-37.

For example, a future model of a semiautomatic

handgun, rifle, or shotgun, though when first released

will not be numerically common based on sales (because it has not yet been sold), will nonetheless be

constitutionally protected because it is categorically

common—that is to say, it will be an iterative semiautomatic handgun, rifle, or shotgun, which are categorically common and protected bearable arms. The same

goes for firearms that Maryland bans based on one or

more characteristics, and their evolutionary and technological successors. Just like the argument “that only

those arms in existence in the 18th century are protected by the Second Amendment [is] not merely

wrong, but bordering on the frivolous,” the “Second

Amendment extends, prima facie, to all instruments

12

that constitute bearable arms . . . ” Caetano, 136 S.Ct.

at 1030 (internal quotations omitted). The fact that the

Maryland may act to ban thousands of discrete configurations of common semiautomatic arms held in respectively smaller numbers than the over-arching

category of “assault weapons” is irrelevant to the constitutional inquiry under Heller.

1. Numerical Analysis

Today, semiautomatic firearms with one or more

common characteristics are among the most popular

firearms in the United States. Miller v. Bonta, 542

F. Supp.3d at 1020-23. Indeed, the district court in Miller found that in 2018 alone, 1,954,000 modern rifles

were either manufactured in or imported into the U.S.

for sale. Miller, 542 F. Supp.3d at 1022. Over the last

30 years, 19,797,000 modern rifles have been manufactured or imported into the United States. Id. “For female gun buyers in 2018, after a handgun, a modern

rifle was the next most popular choice. The same was

true of all first-time gun buyers in 2018.” Id. (citations

omitted). Again in 2018, “approximately 18,327,314

people participated nationally in in target and sport

shooting specifically with modern rifles.” Id.

The popularity of these banned firearms is undeniable. For example, California was the first state to

ever implement an assault weapon ban and arguably

the state with the most expansive assault weapons

regulations. However, despite being banned for 20 to

30 years, the court in Miller found that according to

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the State’s own evidence, there were 185,569 “assault

weapons” registered with the California Department of

Justice. Miller, 542 F. Supp.3d at 1021. The Court also

found that another 52,000 assault weapon registrations were backlogged and left unregistered when the

last California registration period closed in 2018. Id.

The district court in Miller determined that of the

1,345,367 firearms that were purchased in California

from January 2020 to March 2021, it is reasonable to

infer that 176,801 of those firearms were modern rifles.

Id., at 1022.

Modern rifles are indeed popular. Almost one-half

of all rifles (48%) produced in 2018 were modern rifles—or 664,360 rifles. Miller v. Bonta, 542 F. Supp.3d

at 1022. At this point, they are likely more popular

than the Ford F-150 truck. Id., at 1022-23. Other

courts agree. “Even accepting the most conservative

estimates cited by the parties and by amici, the assault

weapons . . . at issue are ‘in common use’ as that term

was used in Heller.” NYSRPA I, 804 F.3d at 255. “We

think it clear enough in the record that semi-automatic

rifles . . . are indeed in ‘common use.’ ” Heller v. District

of Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011) (“Heller II”).

Notably, this Court indicated that as few as

200,000 stun guns owned nationwide by law-abiding

citizens was enough to show common ownership and

receive constitutional protection. Caetano, 577 U.S. at

420 (Alito, J., and Thomas, J., concurring) (approximately 200,000 civilians owned stun guns as of 2009)

(“While less popular than handguns, stun guns are

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widely owned and accepted as a legitimate means of

self-defense across the country.”). Amici in Miller

were able to show that based on the evidence presented at trial, that upwards of 1,000,000 modern rifles

are owned in California alone. Miller v. Bonta, 542

F. Supp.3d at 1023. Common sense dictates that modern rifles are indeed common. They are common in California, common in Maryland, and common throughout

the United States. As such, they are fully protected by

the Second Amendment.

Not only did the court in Miller find overwhelming

data supporting the commonality of modern rifles, it

also found that the State failed to present evidence at

trial that modern rifles—or “assault weapons”—are often used in crime. To the contrary, the evidence showed

that most modern rifles are owned by law-abiding citizens who use them for lawful purposes. The district

court in Miller found that in 2018, “34% of buyers purchased a modern rifle for personal protection, while

36% purchased for target practice or informal shooting,

and 29% purchased for hunting.” Miller v. Bonta, 542

F. Supp.3d at 1022. “For female gun buyers in 2018, after a handgun, a modern rifle was the next most popular choice.” Id. The same was true of all first-time gun

buyers in 2018. Id. Nationally, the sport of 3-gun shooting—in which modern rifles are one of the three classes

of arms used—is the activity with the highest mean

days of participation (23.8 days). The next highest activity is target shooting with a modern rifle (15.3 days).

Id. “In the west region, target shooting with a modern

rifle is the top activity.” Id.

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The same is true for the Fourth Circuit. In fact, the

Fourth Circuit relied on assumptions and figures that

were specifically proven false at trial in Miller. For example, the Fourth Circuit stated that rounds from assault weapons “easily pass through the soft body

armor worm by most law enforcement officers.” Kolbe,

849 F.3d at 127. However, most rifle rounds will defeat

police body armor as it is designed only to resist lower

caliber ammunition fired from a handgun. Miller v.

Bonta, 542 F. Supp.3d at 1053. The district court in

Miller also specifically refuted the state’s contention

that only 2.2 shots are fired on average in self-defense.

Id. at 1041-46. In fact, many of the arguments relied

on by the Court in Kolbe were specifically refuted at

trial in Miller. Such weak, and frankly non-existent evidence cannot be permitted to be relied on by the lower

courts to cripple fundamental Second Amendment

rights.

2. Jurisdictional Analysis

In contrast to the strong historical support for the

constitutional protection of the arms at issue here,

there is no historical support for laws prohibiting firearms with the characteristics prohibited under Maryland’s ban. Amici in Miller v. Bonta showed at trial that

semiautomatic rifles, pistols, shotguns, and detachable

magazines have been in existence since the late 1800s

and early 1900s. Characteristics such as the ergonomic pistol-style grip and thumbhole stock, collapsible stock, flash suppressor, and forward vertical grips

have been commercially available and offered on

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semiautomatic firearms for up to, and in some instances, over a century. Yet these characteristics were

not regulated. Miller v. Bonta, 542 F. Supp.3d at 102425. As early as 1779, firearms had ammunition capacities greater than 10 rounds. During World War I,

detachable magazines with capacities of up to 32

rounds were introduced and available in the commercial market. These early firearms were equipped with

many of Maryland’s currently banned characteristics

such as “large-capacity” magazines, detachable magazines, and adjustable/folding stocks.

Notably, the only federal regulation on semiautomatic firearms having characteristics at issue here did

not occur until 1994 in the Public Safety and Recreational Firearms Use Protection Act (the “Federal Assault Weapons Ban”) (103rd Congress (1993-1994)), a

subsection of the Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. 103-322). This prohibition was allowed to sunset 10 years later due to its lack

of effect on crime. Miller v. Bonta, 542 F. Supp.3d at

1031.

The few other state bans on “assault weapons”

have an even shorter “historical pedigree.” Such lateadopted restrictions by a small handful of jurisdictions

do not qualify as the historically presumptive limits

mentioned in Heller. Cf. Heller II, 670 F.3d at 1260

(“We are not aware of evidence that prohibitions on either semiautomatic rifles or large-capacity magazines

are longstanding and thereby deserving of a presumption of validity”); Staples, 511 U.S. at 603 n.1, 612 (discussing the AR-15 and stating that weapons that fire

17

“only one shot with each pull of the trigger” “traditionally have been widely accepted as lawful possessions”).

In fact, the first state “assault weapons” ban was enacted in 1989 by the State of California. Since 1989,

the definition of what constitutes an “assault weapon”

has changed at least four separate times, each time expanding the definition to encompass more firearms.

In addition, unconstitutional prohibitions are extremely rare and only implemented in a small minority

of states. Specifically, forty-four (44) states do not ban

semiautomatic rifles that are unlawful to purchase,

possess, and use under Maryland’s ban. Forty-one (41)

states do not ban semiautomatic firearms with or without characteristics like pistol grips, collapsible stocks,

threaded barrels, and flash suppressors, whether they

are semiautomatic rifles, pistols, or shotguns. Thus,

these firearms have been sold to and owned by private

citizens for over a century throughout the United

States and continue to be sold to this day in most

places without additional restrictions.

There is no genuine question―the semiautomatic

firearms banned by Maryland are common, not prohibited in the vast majority of States, and have been used

for almost a century by millions of responsible, lawabiding people for various lawful purposes such as selfdefense, hunting, recreation, competition, and collecting. The only rarity regarding such firearms is the very

few States that seek to restrict them by wrongly recasting them as “assault weapons.”

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B. Modern Rifles Are Not “Dangerous and

Unusual” Arms but Are Ideal for SelfDefense.

In Miller, the district court found that “[l]ike the

Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and

battle, the AR-15 is the kind of versatile gun that lies

at the intersection of the kinds of firearms protected

under [Heller] and United States v Miller[.]” Miller,

542 F. Supp.3d at 1014.

While the Fourth Circuit claimed a “lack of evidence that the banned assault weapons and largecapacity magazines are well-suited to self-defense,”

this was not the case in Miller. See Kolbe, 849 F.3d at

127. Amici in Miller successfully showed that the common firearms banned under the California’s AWCA

(and also banned under Maryland’s ban) are not only

in common use, but ideal for self-defense. Miller, 542

F. Supp.3d at 1033-37. The court in Miller found that

“without question, there is clear evidence that AR-15

rifles are and have been used for self-defense.” Id., at

1033.

In Miller, Amici showed at trial that the regulated

characteristics improve the control, accuracy, function,

and safety of firearms. Miller v. Bonta, 542 F. Supp.3d

at 1034-39. These characteristics also make them ideal

for lawful purposes such as sport and hunting. Id. The

characteristics Maryland uses to define “assault weapons,” individually and collectively, are neither unusual

19

nor dangerous. Instead, they provide material benefits

to millions of law-abiding firearm users, including improved ergonomics, enhanced control and accuracy

while firing, and safer operation. For example, a folding

or adjustable stock, is simply a stock that is readily adjustable “to properly fit the user” and does not significantly affect the firearm’s concealability. Id., at 1036.

Firearms with adjustable stocks can be safer and more

easily controlled by law-abiding users—and thus safer

for others—by allowing them to fit the firearm properly

to their size, stature, and other factors. Id. The “flash

suppressor” likewise improves safety by protecting the

user’s vision by mitigating muzzle flash directed at the

firearm user, though others could still see the flash

from other angles. “The use of a [firearm] without a

flash suppressor under [low-light] circumstances is

likely to temporarily blind the user, or at least seriously impair the user’s vision, placing the law-abiding

user at a disadvantage to a criminal attacker.” Id., at

1035-36. This characteristic would be important, for

example, to a homeowner defending against a home invasion at night, when much violent crime occurs. Id.

Far from the menacing hazards Maryland implies

when it categorizes firearms with such characteristics

as “assault weapons,” these firearms are instead a

meaningfully safer and controllable category of firearms in common use for lawful purposes. As such, the

court in Miller found these characteristics made the

modern rifle ideal for self-defense—and such firearms

are fully protected by the Second Amendment.

20

Standard characteristics that enhance accuracy,

control, and safety should be encouraged, not banned.

Rather than promoting safer firearm handling, Maryland’s regulatory scheme prevents firearm users from

maximizing the safe and controlled use of common

semiautomatic firearms. Unquestionably, the characteristics that trigger prohibition, in fact, improve the

safe and controlled use of such firearms. Miller v.

Bonta, 542 F. Supp.3d at 1033-37. Thus, they improve

public safety relating to the lawful use of such firearms.

As for unlawful use, there is no indication that

criminals are particularly concerned about avoiding

collateral or unintended damage through greater accuracy or control. In any event, there is no evidence that

criminals would be any less destructive using compliant firearms without the banned characteristics. Id., at

1037-39. The prohibited characteristics in Maryland’s

ban do not change the fundamental semiautomatic

function of the firearms, nor do they affect the ballistics of their projectiles.

More to the point, the court in Miller found the evidenced showed semiautomatic firearms with the regulated characteristics are not more deadly in the

hands of a criminal than a firearm without those characteristics. Miller, 542 F. Supp.3d at 1038-39. Many notable crimes have been committed by criminals with

semiautomatic firearms that did not have the regulated characteristics. In fact, some of the worst mass

shootings involved handguns.

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1. Modern Rifles Are Ideal for Women

and Those of Smaller Stature.

The same characteristics that make the modern

rifle so popular throughout the United States and ideal

for self-defense, also make it ideal for women and those

of smaller stature looking for a defensive firearm that

is easily operable and specifically fit to the size of the

user. In Miller, Amici submitted evidence stating that

many semiautomatic, centerfire firearms with listed

features, like the AR-15 rifle, are well-suited to women

shooters, because of its relatively light weight and because it can easily be customized to accommodate

smaller shooters. In particular, the collapsible/telescoping stock which is common on most AR-15 pattern

rifles makes it an ideal rifle with which to instruct and

train women, and for women to own and use for selfdefense and other purposes. In the firearms and training communities, this is a widely-held and accepted

understanding. The ability to easily adapt modern rifles, and to adjust them to fit the user makes them the

preferred firearm for many female gun owners and

those of smaller statures. See “Female Gun Owners:

We Prefer the AR-15,” Washington Free Beacon on November 10, 2019, available at https://freebeacon.com/

issues/female-gun-owners-we-prefer-the-ar-15/.3

3

See also “Benefits of the AR-15 For Female Shooters,” The

Well Armed Woman, available at: https://thewellarmedwoman.

com/about-guns/benefits-of-the-ar-15-for-female-shooters/; and “5

Reasons Why an AR is the Perfect Platform for Her,” NRA

Women, available at: https://www.nrawomen.com/content/5-reasonswhy-an-ar-is-the-perfect-platform-for-her/.

22

C. Modern Rifles Are Ideal for Militia Service.

In Miller, Amici were also able to show that California’s assault weapons ban could not stand, because

it prohibited, among other weapons, the AR-15 rifle in

its most common configurations, which make it particularly well-suited for militia service. Through the use

of expert testimony, Amici were specifically able to

show that the rifle’s use of standardized magazines, its

reliability, low cost, and light weight, would enable it

to serve the same purposes sought to be achieved by

the drafters of the founding era militia acts. Moreover,

the modularity and standardization of the AR-15,

along with its ubiquity, commonality, and widespread

ownership in common chamberings, and the interchangeability of parts, including magazines, makes it

the ideal weapon for militia service.

Thus, contrary to what the Fourth Circuit held in

Kolbe, that the AR-15 may have some military use

makes it a protected firearm precisely because it is useful for militia service, under United States v. Miller,

307 U.S. 174 (1939). The 1939 Miller case, now construed after Heller, implies that the Second Amendment protects an individual’s right to bear arms when

they are useful to militia service, and in common use

for other lawful purposes. In United States v. Miller,

Justice McReynolds stated that in the absence of any

evidence showing that possession of a short-barreled

shotgun had some “reasonable relationship to the

preservation or efficiency of a well regulated militia,”

the Court “cannot say that the Second Amendment

23

guarantees the right to keep and bear such an instrument. Certainly, it is not within judicial notice that this

weapon is any part of the ordinary military equipment

or that its use could contribute to the common defense.” 307 U.S. at 178, 59 S.Ct. at 818. Justice McReynolds then pointed out:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies

and States, and the writings of approved commentators. These show plainly enough that

the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military

discipline.’ And further, that ordinarily when

called for service these men were expected to

appear bearing arms supplied by themselves

and of the kind in common use at the time.

307 U.S. at 179 (emphasis added). The Court again

pointed out that many militia required periodical but

common musters of able-bodied male citizens, and that

these citizens were expected to keep and maintain

arms suitable for this purpose. 307 U.S. at 182. See also

Heller, 554 U.S. at 627, 128 S.Ct. at 2817.

Forwarding 82 years to the modern Miller case,

Amici were able to supply precisely what Justice

McReynolds required: Evidence establishing that the

AR-15 rifle has more than a “reasonable relationship”

to the preservation or efficiency of a well-regulated militia. The district court agreed, holding:

24

In this case, the evidence overwhelmingly

shows that AR-15 platform rifles are ideal for

use in both the citizens’ militia and a stateorganized militia. Quite apart from its practicality as a peacekeeping arm for home-defense, a modern rifle can also be useful for war.

In fact, it is an ideal firearm for militia service. Major General D. Allen Youngman, U.S.

Army (retired) testified credibly about the

usefulness for militia service of rifles built on

the AR-15 platform. [¶] He describes three tiers of militia service. General Youngman testified that a state may or may not have a

statute authorizing a state defense force. California does have a state defense force of approximately 1,000 members. During World

War II, California used a state defense force

much larger than 1,000 to secure critical infrastructure. For this type of militia use, the

AR-15 “would be absolutely the perfect weapon

for the individual member of that force to be

equipped for—for a variety of missions to include infrastructure protection and ones like

that.”

Miller v. Bonta, 542 F. Supp.3d at 1062.

The Fourth Circuit’s analysis in Kolbe turned this

upside-down. It found that because a firearm was “like”

an M-16, it was most useful in military service, and it

could therefore be banned on this ground alone, as being “beyond the Second Amendment’s reach.” Kolbe,

849 F.3d at 121.

25

Review should be granted to address the Fourth

Circuit’s holding which is directly contrary to both Heller and United States v. Miller.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, Amici respectfully request that this Court grant certiorari to review the decision below.

Respectfully submitted,

JOHN W. DILLON

DILLON LAW GROUP APC

2647 Gateway Road

Suite 105, No. 255

Carlsbad, CA 92009

(760) 642-7150

jdillon@dillonlawgp.com

GEORGE M. LEE

Counsel of Record

SEILER EPSTEIN LLP

275 Battery Street

Suite 1600

San Francisco, CA 94111

(415) 979-0500

gml@seilerepstein.com

Counsel for Amici Curiae

February 14, 2022