Amicus Curiae Brief — Dominic Bianchi, et al., Petitioners v. Anthony G. Brown, in His Official Capacity as Attorney General of Maryland, et al.

No. 23-863

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In The

Supreme Court of the United States

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

Petitioners,

v.

ANTHONY G. BROWN, et al.,

Respondents.

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

Before Judgment To The

United States Court Of Appeals

For The Fourth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE

INTERNATIONAL LAW ENFORCEMENT

EDUCATORS & TRAINERS ASSOCIATION, JOHN

LOCKE FOUNDATION, AND INDEPENDENCE

INSTITUTE IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------E. GREGORY WALLACE

CAMPBELL UNIVERSITY

SCHOOL OF LAW

225 Hillsborough Street

Raleigh, NC 27603

(919) 696-3057

wallaceg@campbell.edu

DAVID B. KOPEL

INDEPENDENCE INSTITUTE

727 East 16th Avenue

Denver, CO 80203

(303) 279-6536

david@i2i.org

Counsel of Record

JONATHAN D. GUZE

JOHN LOCKE FOUNDATION

4800 Six Forks Rd., Ste. 220

Raleigh, NC 27609

(919) 828-3876

jguze@lockehq.org

March 13, 2024

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

i

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

iii

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

1

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

2

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

3

I.

II.

Law enforcement officers choose rifles like

those at issue because those rifles are often best for defense of self and others .......

3

The rifles at issue fire at the same rate as

most common handguns ............................

8

A. Because semiautomatic rifles cannot

fire automatically, they are not used

by any military ....................................

8

B. Semiautomatic rifles fire at the same

rate as common handguns, much

slower than automatic rifles ............... 10

III.

The rifles at issue are more powerful than

handguns and less powerful than most

other rifles ................................................. 13

A. Because AR bullets are small, their

terminal performance is inferior to

many other long guns .......................... 13

B. The ARs’ wounding power is no more

severe than non-banned long guns ..... 16

C. There are longstanding complaints

within the military about the relatively weak stopping power of AR bullets ....................................................... 18

ii

TABLE OF CONTENTS – Continued

Page

D. Reports of the AR-15’s massive

wounding power in Vietnam were

proven false by subsequent testing ..... 21

E. AR ammunition is safer than other

types because it is less likely to penetrate a wall .......................................... 24

IV.

The deadliest firearms in mass shootings

are handguns ............................................. 25

V.

Maryland’s ban implicitly disparages law

enforcement officers and harms community relations ............................................. 27

CONCLUSION..................................................... 29

iii

TABLE OF AUTHORITIES

Page

SUPREME COURT CASES

Staples v. United States, 511 U.S. 600 (1994) .......... 8, 9

LOWER COURT CASES

Bevis v. City of Naperville, 85 F.4th 1175 (7th

Cir. 2023) ........................................................3, 10-12

Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) ....... 3-5, 9,

................................................................ 10-13, 21, 25

Viramontes v. Cook County, 2024 WL 897455

(N.D. Ill., Mar. 1, 2024) ............................................11

EXPERT DECLARATIONS

Buford Boone Decl., in Kolbe v. Hogan, 849 F.3d

114 (4th Cir. 2017) ............................................5-6, 24

Harold Johnson Decl., in Heller v. District of Columbia, 698 F. Supp. 2d 179 (D.D.C. Sept. 14,

2009) ...................................................................... 8-9

Gary Roberts Decl., in Kolbe v. Hogan, 849 F.3d

114 (4th Cir. 2017) ...................................................17

Guy Rossi Decl., in Kolbe v. Hogan, 849 F.3d 114

(4th Cir. 2017)............................................................9

REGULATIONS

27 C.F.R. §179.11 ........................................................12

2 Code of Colo. Reg. §406-2-I-203(A)(1)......................16

iv

TABLE OF AUTHORITIES – Continued

Page

4 Va. Admin. Code §15-270-10 ....................................16

Wash. Admin. Code §220-414-020(1)(c) .....................16

BOOKS

Mark Bowden, BLACK HAWK DOWN: A STORY OF

MODERN WAR (1999) .......................................... 20, 21

C.J. Chivers, THE GUN (2010) ............................... 22, 23

Louis Klarevas, RAMPAGE NATION: SECURING

AMERICA FROM MASS SHOOTINGS (2016) ............ 11-12

Massachusetts Municipal Police Training Committee, BASIC FIREARMS INSTRUCTOR COURSE:

PATROL RIFLE (Sept. 2007).......................................24

Blake Stevens & Edward Ezell, THE BLACK RIFLE: M16 RETROSPECTIVE (1994) ........................ 22-23

Gabriel Suarez, THE TACTICAL RIFLE: THE PRECISION TOOL FOR URBAN POLICE OPERATIONS

(1999) ................................................................. 24-25

W. Todd Woodward (ed.), CARTRIDGES OF THE

WORLD (17th ed. 2022) ............................................13

JOURNAL ARTICLES

Glenn Dean & David LaFontaine, Small Caliber

Lethality: 5.56mm Performance in Close Quarters Battle, WSTIAC Q., Jan. 2008 .........................20

Martin L. Fackler, Gunshot Wound Review, 28

Annals of Emergency Medicine 194 (Aug.

1996) ........................................................................23

v

TABLE OF AUTHORITIES – Continued

Page

Martin L. Fackler, Civilian Gunshot Wounds

and Ballistics: Dispelling the Myths, 16

Emerg. Med. Clin. North Am. 17 (1998) .................14

Martin L. Fackler, Literature Review, 5 Wound

Ballistics Rev. 39 (Fall 2001) ............................ 16, 24

Martin L. Fackler, Wound Profiles, 5 Wound Ballistics Rev. 25 (Fall 2001) ........................................17

Martin L. Fackler, Questions and Comments, 5

Wound Ballistics Rev. 5 (Fall 2001) .................. 17-18

Babak Sarani, et al., Wounding Patterns Based

on Firearm Type in Civilian Public Mass

Shootings in the United States, 228 J. Amer.

College Surgeons 228 (Mar. 2019) .................... 25, 26

Jim Schatz, Do We Need a New Service Rifle Cartridge? End User Perspective and Lessons

Learned, Small Arms Def. J. 119 (Spring

2011) .................................................................. 19-20

P.K. Stefanopoulos, et al., Wound Ballistics of

Firearm-Related Injuries – Part 1: Missile

Characteristics and Mechanisms of Soft Tissue Wounding, 43 Int. J. Oral Maxillofac. Surg.

1445 (2014) ..............................................................18

E. Gregory Wallace, “Assault Weapon” Lethality,

88 Tenn. L. Rev. 1 (2020) ........................ 12, 14-15, 17

E. Gregory Wallace, “Assault Weapon” Myths, 43

S. Ill. U.L.J. 193 (2018) ........................................ 8, 11

vi

TABLE OF AUTHORITIES – Continued

Page

OTHER FEDERAL SOURCES

Department of the Army, FIELD MANUAL 3-22.9,

RIFLE MARKSMANSHIP: M16/M4-SERIES WEAPONS (2008) ................................................................10

Department of Defense, Advanced Research

Projects Agency (DARPA), Test of Armalite

Rifle, AR-15 (July 31, 1962) ....................................22

Department of Defense, Defense Intelligence

Agency, Harold Johnson, SMALL ARMS IDENTIFICATION AND OPERATION GUIDE – EURASIAN

COMMUNIST COUNTRIES (various editions.)................9

Department of Defense, C. Todd Lopez, Army

Announces 2 New Rifles for Close-Combat Soldiers (Apr. 22, 2022) ................................................21

Department of Justice, National Inst. of Justice,

Guide: Body Armor (2014) ......................................25

H.R. Rep. No. 103-489 (1994) .....................................11

Senate Committee on Armed Services, Subcommittee on Airland, Hearing on United States

Military Small Arms Requirements, Cong. S.

Hrg. 115-425 (May 17, 2017)...................................19

OTHER SOURCES

Carolyn Crist, Handguns More Lethal Than

Rifles in Mass Shootings, Reuters (Dec. 31,

2018) ..................................................................... 26

The Violence Project, Mass Shooter Database

(vers. 8.0 Jan. 2024) .......................................... 26-27

1

INTEREST OF AMICI CURIAE1

The International Law Enforcement Educators

and Trainers Association (ILEETA) comprises 4,000

professional law enforcement instructors, committed

to reducing risk and saving lives of law enforcement

officers and citizens. ILEETA members train officers

in proper use of firearms and other force, and many

other topics, including control and safety. ILEETA

provides training for trainers at its annual conference, and through the ILEETA Journal, quarterly

ILEETA Digest, ILEETA E-Bulletin, and ILEETA

Learning Lab. ILEETA’s amicus briefs were cited by

Justice Breyer in Heller and by Justices Alito and Stevens in McDonald.

The John Locke Foundation was founded in

1990 as a nonprofit think tank in North Carolina. It

employs research, journalism, and outreach to promote

liberty and limited constitutional government as the

cornerstones of a society in which individuals, families,

and institutions can freely shape their own destinies.

The Independence Institute is a public policy

research organization based in Denver, Colorado,

founded in 1985 on the eternal truths of the Declaration of Independence. The briefs and scholarship of Research Director David Kopel have been cited in seven

opinions from this Court. The Institute’s Senior Fellow

1

No party’s counsel authored this brief. No one other than

amici, their members, or their counsel contributed money to it. All

counsel of record received notice of intent to file this brief at least

10 days prior to the deadline.

2

in Constitutional Studies, law professor Robert Natelson, has been cited in a dozen such opinions.

All amici strongly support the Constitution, including the Second Amendment, and wish to describe

to this Court how the Maryland statute endangers lawabiding citizens and law enforcement officers.

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

SUMMARY OF ARGUMENT

The rifles banned by Maryland are excellent arms

for lawful defense of self and others. Because the

banned rifles fire ammunition that is less powerful

than most other rifle ammunition, the recoil is lower.

Hence, accuracy and comfort are greater. For accuracy,

ergonomics, and other safety-related reasons, the

banned arms are often chosen by law enforcement officers and by law-abiding citizens for lawful defense of

self and others.

The rifles are not machine guns; they fire at the

same rate as common handguns. They are less powerful than most other rifles. The wounds they cause are

generally less severe than wounds from other long

guns.

By mischaracterizing these firearms, the Fourth

Circuit implicitly disparaged law enforcement officers.

In America, the ordinary arms of civil peace officers are

not weapons of war, and peace officers not an army of

occupation.

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

3

ARGUMENT

The en banc Fourth Circuit in Kolbe v. Hogan

called the AR-15 and other banned semiautomatic rifles “exceptionally lethal weapons of war,” unsuitable

for self-defense, and with “a capability for lethality –

more wounds, more serious, in more victims – far beyond that of other firearms in general, including other

semiautomatic guns.” Kolbe v. Hogan, 849 F.3d 114,

125, 137 (4th Cir. 2017) (en banc).

After Bruen, lower courts that had previously upheld gun bans under other rationales have shifted to

the Kolbe theory. For example, the Seventh Circuit declared the rifles are not “arms” protected by the Second

Amendment because they are “almost the same” as

machine guns “exclusively or predominantly useful in

military service” or “reserved to the military.” Bevis v.

City of Naperville, 85 F.4th 1175, 1194-97 (7th Cir.

2023).

If the claims were true, and the rifles were actually super-guns useful only for mass slaughter, typical

American peace officers would not choose them, nor

could they be allowed to.

I.

Law enforcement officers choose rifles

like those at issue because those rifles are

often best for defense of self and others.

Most law enforcement patrol cars carry a rifle, a

shotgun, or both. The patrol rifle usually is a semiautomatic AR-type, or another type that Maryland also

4

bans. Kolbe labels them “exceptionally lethal weapons

of war.” 849 F.3d at 124.

The “AR-15” was invented in 1956 by ArmaLite

Corp., a pioneer in lighter-weight materials in arms

manufacture. The rifle was ArmaLite’s 15th gun

model.

ArmaLite built the ArmaLite Rifle-15 as an automatic weapon (in federal statutory terms, “machinegun”), and sold the patent to Colt’s Manufacturing Co.,

which won a military contract early in the Vietnam

War. The gun’s name was changed to M16, and it has

been partly succeeded by the smaller M4 carbine.

In 1965, Colt’s introduced a civilian semiautomatic model (only one shot per trigger pull, in contrast

to an automatic). Because the patent has expired,

many manufacturers now make guns on the AR platform. But none of them are called “AR-15,” because

Colt’s still owns the trade name. This brief uses the

term “AR,” except where a source said “AR-15.”

Kolbe found “scant evidence” that the banned rifles “are possessed, or even suitable, for self-protection.” 849 F.3d at 138. To the contrary, ARs have

exceptional utility for lawful defense of self and others,

as demonstrated by the routine choices of law enforcement officers. One typical use is close-quarters operations inside buildings, a similar situation to that faced

by many citizen defenders.

Prudently, American citizens have always looked

to law enforcement for guidance in choosing defensive

5

firearms, because law enforcement firearms are selected with care. Officers choose their duty arms for

one purpose: lawful defense of self and others.

The most important reason why citizens often do

and should copy law enforcement officers’ firearms selections is to ensure that citizens will have reliable firearms for defense. Officers’ arms are well-suited for

defense against violent criminals; and they are appropriate for use in civil society.2

Buford Boone, one of plaintiffs’ firearms and ballistics experts in Kolbe, explained why AR platform rifles are particularly suitable for defensive purposes.

See Boone Decl. at J.A. 2176-2183, in Kolbe v. Hogan,

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

Effective self-defense requires incapacitating the

attacker as quickly as possible – delivering a “threatstopping hit.” Such a hit requires two things: first, the

defender’s shot must hit the attacker. Second, the shot

must be powerful enough to knock the attacker down.

Id. at 2176-77.

2

In a typical law enforcement agency, only a small number

of officers possess genuinely military arms, such as machine guns

or stun grenades. These arms are deployed only for unusual situations, such as hostage scenarios or high-risk warrant service.

These are certainly not the arms that a citizen would see an officer carrying during standard patrol. Most law enforcement leaders, and the public, would not tolerate such military equipment

for routine law enforcement.

3

Boone directed the FBI Ballistic Research Facility for 15

years.

6

There is an inherent tension between the two. The

less powerful the gun, the easier it is to shoot accurately. The more powerful the gun, the better the

chance that a hit will stop the attacker. For many defensive users, including law enforcement, the AR platform is an excellent compromise.

Like all centerfire rifles, ARs are more powerful

than any handgun.4 Among rifles, ARs are among the

least powerful. Because ARs are rifles, they are large,

and so are better at absorbing recoil than are handguns. Because AR ammunition is low power compared

to other rifles, recoil is also lower.

Less recoil makes a gun easier to shoot accurately.

So does the lesser weight of the AR. All the more so for

persons who do not have great upper body strength.

Additionally, the AR platform is built for best ergonomics. The telescoping stock can adjust for a precise

fit to the user’s size. The customizable forward grip

provides stability. Surrounding the barrel are rails

(sometimes called the handguard or forend) that make

it easy to add optics, such as scopes, red dots, and/or

flashlights – all for greater accuracy. Id. at 2182.

4

The very small .22 caliber rimfire cartridge, which is used

in both rifles and handguns, is less powerful than other ammunition. In a “rimfire” cartridge, such as the .22LR, the primer is contained in the rim of the cartridge base. Except in .22 caliber or

smaller, rimfire ammunition is rarely used today. In a centerfire

cartridge, the gunpowder explosion is initiated by the gun’s firing

pin striking the primer in the center of the cartridge base. References in this brief to “rifles” are to centerfire rifles, except as

otherwise noted.

7

The AR’s superior accuracy over handguns means

that there will be fewer missed shots, thus posing less

danger to bystanders. As discussed in Part III.E, for

defense in the home, the most common AR ammunition

calibers (.223 inches or 5.56mm) are less likely to penetrate walls than are handguns, other rifles, or shotguns.

An AR rifle is superb for putting a bullet on target.

The trade-off is that the AR is inferior to most other

rifles in being able to stop an attacker with one hit.

Law enforcement officers do not rely solely on the

AR, nor do many law-abiding citizens. Handguns are

superior in portability and maneuverability, and can

be fired one-handed. But they require a higher degree

of skill to shoot accurately.

A 12-gauge shotgun (the largest very common

size) is most likely to deliver a threat-stopping hit at

close range. But it has much greater recoil, making it

more difficult to control. It is harder to reload, especially under the life-or-death conditions of self-defense.

There is no “best” type of gun for self- or home-defense. Different guns are best in different situations for

different defenders. That is why law enforcement officers usually have a handgun in a holster and different

arms in the patrol car. Many citizens also have more

than one type of firearm. The Second Amendment

guarantees citizens the individual right to choose any

common arm.

8

II.

The rifles at issue fire at the same rate as

most common handguns.

Most AR platform citizen semiautomatic rifles

have an appearance similar to the automatic, military

M16. As this Court has explained, a semiautomatic

firearm fires one bullet (or “round”) for each pull of the

trigger, while an automatic weapon (machine gun) fires

continuously so long as the shooter presses and holds

the trigger. Staples v. United States, 511 U.S. 600, 602

n.1 (1994). “The AR-15 is the civilian version of the

military’s M-16 rifle, and is . . . 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.” Id. at 603.

That is why semiautomatics, specifically including the

AR, “traditionally have been widely accepted as lawful

possessions,” whereas machine guns have not. Id. at

612.

A. Because semiautomatic rifles cannot

fire automatically, they are not used by

any military.

Because the AR-15 lacks automatic-fire capability,

the U.S. military does not use it. See Gregory Wallace,

“Assault Weapon” Myths, 43 S. Ill. U.L.J. 193, 207-11

(2018). No military force in the world uses a service rifle that is semiautomatic only. Harold Johnson Decl.,

9

in Heller v. District of Columbia, 698 F. Supp. 2d 179

(D.D.C. Sept. 14, 2009).5

As one of plaintiffs’ experts in Kolbe explained:

The defining characteristic of military weapons designed for combat – the characteristic

that separates military weapons from civilian

firearms – is the functional ability to fire in

fully automatic mode, 3-round burst mode [a

type of automatic fire], or select fire mode [the

user can switch between automatic and semiautomatic]. The significance of this functional

difference . . . [is] civilian firearms like the

AR-15 cannot fire in fully automatic mode and

therefore cannot be considered military weapons. The ability to fire in fully automatic mode

is a military function.

Guy Rossi Decl. at J.A. 2129, in Kolbe v. Hogan.6

Thus, this Court in Staples used a descriptor that

accurately differentiates the AR-15: it is the civilian

version of the M16 rifle. Staples, 511 U.S. at 603. The

semiautomatic AR-15 is not a military weapon and

never has been.

5

Johnson is author of the Defense Intelligence Agency’s

SMALL ARMS IDENTIFICATION AND OPERATION GUIDE – EURASIAN

COMMUNIST COUNTRIES (editions in 1969, 1970, 1973, 1976, 1983).

6

Rossi is a former law enforcement officer who specialized in

field training and defensive tactics instruction. He is a nationally

recognized law enforcement trainer (including at ILEETA’s annual training conference) and expert witness on use of force, defensive tactics, and firearms.

10

Although Kolbe called the semiautomatic AR-15

“most useful” in military service, 849 F.3d at 137, in

reality it is never used in military service.

Relying on Kolbe, the Seventh Circuit labeled ARs

“almost the same” as machine guns and other weapons

“exclusively or predominantly useful in military service” or “reserved to the military.” Bevis, 85 F.4th at

1194-97. According to the Seventh Circuit, the AR-15

is “indistinguishable” from the M16. Id. at 1197. But

the Seventh Circuit overlooked that one rifle fires

much faster than the other, and so the slower one is

never adopted by any military.

B. Semiautomatic rifles fire at the same

rate as common handguns, much

slower than automatic rifles.

The U.S. military’s M16/M4 rifles have a cyclic

rate-of-fire of 700-to-900 rounds-per-minute in automatic mode. U.S. Dep’t of the Army, FIELD MANUAL 322.9, RIFLE MARKSMANSHIP: M16/M4-SERIES WEAPONS,

Table 2-1 (2008).7 That is a rate of 12-to-15 rounds per

second.

Kolbe asserted the semiautomatic-only AR-15

rate-of-fire is “nearly identical.” 849 F.3d at 136. The

cited authority was a 1994 congressional report stating

that “[s]emiautomatic weapons can be fired at rates of

300 to 500 rounds per minute, making them virtually

7

https://www.moore.army.mil/infantry/DoctrineSupplement/

ATP3-21.8/PDFs/fm3_22x9.pdf.

11

indistinguishable in practical effect from machine

guns.” Id. at 125 (quoting H.R. Rep. No. 103-489, at 18

(1994) (internal quotations omitted)). Bevis claimed

ARs can fire 300 rounds-per-minute. 85 F.4th at 119697. It found no relevant difference between that rate

and the 700 rounds-per-minute automatic rate-of-fire

for the military M16/M4. Id. See also Viramontes v.

Cook County, 2024 WL 897455, at *8 (N.D. Ill., Mar. 1,

2024) (following Bevis and calling the difference in automatic and semiautomatic rates-of-fire “truly a distinction without a difference”).

The above claims are impossible. Because any

semiautomatic fires only one round for each trigger

pull, the user would have to pull the trigger five-toeight times per second for an entire minute. That

would take a superhuman trigger finger, especially

when pulling against the several pounds of force required to press a trigger. The 300-to-500-rounds-perminute pseudo-fact came from an unsourced claim by

a gun-control advocate in 1991. See Wallace, Myths at

214-22.

All semiautomatics fire at about the same rate.

The rate of fire of an AR or other semiautomatic rifle is

like the rate of fire of common semiautomatic handguns, such as those made by Glock, Smith & Wesson,

or Sig Sauer.

Louis Klarevas, one of the government experts in

current “assault weapon” litigation, sets the average

shooter’s rates-of-fire for semiautomatic handguns

and semiautomatic “assault rifles” at an identical two

12

rounds per second; an expert shooter can fire both

weapons at three rounds per second. Louis Klarevas,

RAMPAGE NATION: SECURING AMERICA FROM MASS

SHOOTINGS 212 (2016); see also Gregory Wallace, “Assault Weapon” Lethality, 88 Tenn. L. Rev. 1, 18-27

(2020) (rate-of-fire comparisons for AR-15, M16/M4,

and handguns).

Kolbe asserted there is only a “slight” difference

between automatic and semiautomatic fire. 849 F.3d at

125. Bevis adopts this claim. 85 F.4th at 1196. However,

the rate of automatic fire is 700-to-900 rounds per minute, whereas the rate of semiautomatic fire is 120-to180. The semiautomatic rate is about five times slower

than the automatic rate.8

This difference is significant, not “slight.” An average shooter firing a military M16 in automatic mode

can fire 100 rounds in the same or less time than it

would take the same shooter firing a semiautomatic

AR-15 to fire 20 rounds. If the shooter fires indiscriminately into a crowded bar, church, or classroom, the

fully automatic M16 would launch some 80 more bullets into the crowd.

8

The Seventh Circuit asserted that even if the AR-15 is not

a machine gun, modifications like bump stocks and auto sears can

transform it into one. 85 F.4th at 1196. An “auto sear” is a type of

machine gun conversion kit. By federal law, it is treated the same

as a machine gun. 27 C.F.R. §179.11. Bump stocks do substantially increase a rifle’s rate of fire. Thus, some legislatures have

chosen to regulate them similarly to machine gun conversion kits.

13

III. The rifles at issue are more powerful than

handguns and less powerful than most

other rifles.

The Fourth Circuit thrice asserted in Kolbe that

the banned firearms have “a capability for lethality –

more wounds, more serious, in more victims – far beyond that of other firearms in general, including other

semiautomatic guns.” 849 F.3d at 125, 137, 144. This is

false.

A. Because AR bullets are small, their terminal performance is inferior to many

other long guns.

The wounding power of a bullet comes mainly

from the kinetic energy it imparts to the target. The

formula is: KE = ½ x M x V2. In words: one-half of the

Mass, times the square of the Velocity. In other words,

wounding power depends on a combination of bullet

weight and bullet speed.

Consider the wounding effects (“terminal performance”) of three common rounds of ammunition. The

diminutive .22LR rifle fires bullets weighing up to 40

grains; it is a favorite for plinking at cans. The .44 magnum revolver is a powerful defensive handgun, carried

by fictional Detective “Dirty Harry” Callahan. Its bullets weigh around 200 grains. See Todd Woodward

(ed.), CARTRIDGES OF THE WORLD 473, 638 (17th ed.

2022). The 12-gauge 00-buckshot shotgun cartridge is

so named because it is popular for deer hunting. It fires

nine pellets all at once, each weighing 54 grains.

14

Each of the nine shotgun pellets weighs more than

the single small .22 rifle bullet. Cumulatively, the shotgun rounds weigh 486 grains. So at short range, they

will cause much more tissue disruption than the 200

grain big handgun bullet; the big handgun bullet will

cause far more disruption than the tiny rifle bullet. See

Martin Fackler, Civilian Gunshot Wounds and Ballistics: Dispelling the Myths, 16 Emerg. Med. Clin. North

Am. 17, 23 (1998). Dr. Fackler, military trauma surgeon, served as director of the Army’s Ballistic Research Laboratory for 10 years. He was one of the

world’s foremost wound ballistics experts.

The following table compares the typical weight,

velocity, and kinetic energy of some modern handgun,

rifle, and shotgun projectiles, measured at the firearm’s muzzle and at a distance of 100 yards.

Table 1. Ballistics Data

Caliber

Handguns

9 mm

.357 Magnum

.40 S&W

10mm

.44 Magnum

.45 ACP +P

Long guns

.22LR Rimfire

.223/5.56

Bullet Velocity Velocity Energy Energy

Weight @Muzzle @100 yds @Muzzle@100 yds

(Grains) ft/s

ft/s

ft lbs

ft lbs

115

125

175

180

200

230

1140

1500

1010

1275

1500

950

954

1147

899

1052

1196

872

332

624

396

650

999

461

232

365

314

443

635

385

40

55

1070

3240

908

2854

102

1282

73

995

15

.243

Winchester

6.5

Creedmoor

.30-30

.308/7.62

.30-06

.300

Win. Mag

.338

Lapua Mag

.50 BMG

12-ga shotgun

slug9

90

3150

2911

1983

1693

143

2700

2557

2315

2076

160

165

178

2400

2700

2750

2151

2496

2582

2046

2670

2989

1643

2282

2635

180

2960

2766

3502

3058

270

2800

2680

4699

4304

750

2820

2728

13241

12388

438

1610

1139

2521

1262

Gregory Wallace, “Assault Weapon” Lethality, 88 Tenn.

L. Rev. 1, 44-45 (2020).

As the Table shows, rifles of all sorts (other than

.22 caliber) have more kinetic energy than handguns,

so they have more wounding power. AR rifles are more

powerful than handguns, and so are all other rifles

above .22 caliber.

Compared to other rifles, the .223/5.56 ammunition for AR rifles has slightly higher velocity, but uses

a smaller bullet. As a result, this AR ammunition imparts much less kinetic energy to the target than do

most other rifles. Compare the .223/5.56 to three

9

While shotguns most often use cartridges that fire multiple

small pellets, a “shotgun slug” is a single large lead projectile.

16

classic American hunting rifle cartridges, the .308, .3030, and .30-06. The AR has much less kinetic energy.

The AR’s bullets also strike with less energy than

a shotgun slug, which is often used for hunting deer

and similar game.

Throughout American history, the standard military cartridge has always been commonly used for

hunting and self-defense. This has also been true for

the .223, except that in some states, it is illegal to hunt

deer or larger game with the .223 because it is considered too underpowered to reliably cause immediate,

humane kills. See, e.g., 2 Code of Colo. Reg. §406-2-I203(A)(1); 4 Va. Admin. Code §15-270-10; Wash. Admin.

Code §220-414-020(1)(c). Dr. Fackler calls the .223

round “a ‘varmint’ cartridge, used effectively for shooting woodchucks, crows, and coyotes.” Martin Fackler,

Literature Review, 5 Wound Ballistics Rev. 39, 41 (Fall

2001).

B. The ARs’ wounding power is no more

severe than non-banned long guns.

In addition to calculating the kinetic energy of various types of ammunition, another method of studying

wound effects is to examine ammunition penetration

of various targets; these include wounds in human subjects, and test-firing projectiles into media such as ballistic gelatin.

The Army Ballistic Research Laboratory examines

all aspects of firearms wounds, including permanent

17

and temporary cavities in the target, penetration

depth, and deformation and fragmentation of bullets.

Compared to .223 and 5.56mm bullets, wound profiles

of bullets from very common rifle hunting calibers,

such as 308, .30-30, and .30-06, are at least as extensive and typically more so. Martin Fackler, Wound Profiles, 5 Wound Ballistics Rev. 25, 29-31, 33-34 (Fall

2001). See Wallace, Lethality at 43-56 (in-depth analysis of wound ballistics).

As one of the plaintiffs’ ballistic experts in Kolbe

explained:

AR15’s firing relatively weak .223/5.56 mm

ammunition . . . pale in destructive capacity

when compared to common civilian hunting

rifles firing calibers like .260 Rem, .270 Win, 7

mm Mag, .30-06, .300 Mag, .338 Mag, .375

H&H, 416 Rigby, .458 Lott, and .500 Nitro.

Even hunting rifles in older calibers from the

1800’s, like .30-30 and .45-70, penetrate much

deeper and are far more damaging than the

.223/5.56 mm ammunition fired by the AR15.

Gary Roberts Decl. at J.A. 2095, in Kolbe v. Hogan.10

Most gun crimes, including mass shootings, take

place at close range. So do most defensive gun uses. Dr.

Fackler observes that at close range “the 12 gauge

shotgun (using either buckshot or a rifled slug) is far

10

Roberts served on the Joint Service Wound Ballistic Integrated Product Team and was a consultant to the Joint FBIUSMC munitions testing program. He has performed military,

law enforcement, and privately funded wound ballistic testing

and analysis.

18

more likely to incapacitate than is a .223 rifle. The 12

gauge shotgun is simply a far more powerful weapon.”

Martin Fackler, Questions and Comments, 5 Wound

Ballistics Rev. 5 (Fall 2001).11

P.K. Stefanopoulos, trauma surgeon and former

career military officer who has written extensively on

wound ballistics, states that at distances of less than

10 feet “the shotgun produces the most devastating injuries of all small arms.” P.K. Stefanopoulos, et al.,

Wound Ballistics of Firearm-Related Injuries – Part 1:

Missile Characteristics and Mechanisms of Soft Tissue

Wounding, 43 Int. J. Oral Maxillofac. Surg. 1445, 1453

(2014).

C. There are longstanding complaints

within the military about the relatively

weak stopping power of AR bullets.

The Fourth Circuit’s comparisons between the civilian semiautomatic AR-15 and the military’s automatic M16/M4 assume that the military rifles

themselves are exceptionally lethal. That assumption

is wrong.

The automatic military M16/M4 and the civilian

semiautomatic AR-15 fire similar cartridges. The military uses the 5.56mm NATO round; civilians use that

round, and also the slightly smaller .223 (inches)

11

Because shotgun pellets are spheres, whereas bullets are

conoidal, pellets lose relatively more energy over distance, from

air friction.

19

caliber round. (Caliber is a measure of the bullet’s diameter.)

Both the .223 and the 5.56 rounds are smaller and

lighter, and hence less powerful, than the standard

rounds of previous standard American combat rifles.

The standard U.S. Army round in the Korean War for

the M14 automatic rifle was the 7.62mm (.308 inches).

During the first half of the twentieth century, the

standard was the .30-06 (.30 inches, adopted in 1906).

It was used in the semiautomatic M1 Garand of WWII,

and in bolt-action rifles before that.

The Army’s 1960s shift to smaller and lighter ammunition enabled soldiers to carry more. Additionally,

the smaller bullets need less gunpowder, so recoil is reduced. Less recoil means more accuracy.

The disadvantage of the newer, smaller ammunition compared to its predecessors is less stopping

power. Major General Robert Scales testified to the

Senate that the 5.56mm cartridge “is simply too small

for modern combat. . . . The civilian version of the

5.56-mm bullet was designed as a ‘varmint killer’ and

six states prohibit its use for deer hunting because it

is not lethal enough to ensure a quick kill.” Senate

Comm. on Armed Services, Subcomm. on Airland,

Hearing on United States Military Small Arms Requirements, Cong. S. Hrg. 115-425, at 12 (May 17,

2017).

Soldiers have complained that the small 5.56mm

round lacks sufficient effectiveness in incapacitating

the enemy. According to combat veteran and small

20

arms expert Jim Schatz, “The disturbing failure of the

5.56x45mm caliber to consistently offer adequate incapacitation has been known for nearly 20 years.” Jim

Schatz, Do We Need a New Service Rifle Cartridge? End

User Perspective and Lessons Learned, Small Arms

Def. J. 119 (Spring 2011).12

Schatz describes one Special Forces (SF) mission

in Afghanistan when an insurgent was shot seven or

eight times in the torso, got back up, climbed over a

wall, and reengaged other SF soldiers, killing a SF

medic. The insurgent then was shot another six-toeight times from about 20-30 yards before finally being

killed by a SF soldier with an M1911 handgun. Schatz

at 125. See also Glenn Dean & David LaFontaine,

Small Caliber Lethality: 5.56mm Performance in Close

Quarters Battle, WSTIAC Q., Jan. 2008, at 3 (describing multiple reports from soldiers in Afghanistan using 5.56mm rounds “experiencing multiple ‘throughand-through’ hits on an enemy combatant where the

target continued to fight”).13

Mark Bowden’s bestselling book Black Hawk

Down vividly recounts the less-than-lethal performance of the Army’s 5.56mm bullet in the Battle of

Mogadishu in 1993. One Delta operator’s rounds “were

passing right through his targets. . . . The bullet made

a small, clean hole, and unless it happened to hit the

heart or spine, it wasn’t enough to stop a man in his

12

https://www.yumpu.com/en/document/read/37272962/dowe-need-a-new-service-rifle-cartridge-hkprocom.

13

https://perma.cc/682N-7E6S.

21

tracks. [The operator] felt like he had to hit a guy five

or six times just to get his attention.” Mark Bowden,

BLACK HAWK DOWN: A STORY OF MODERN WAR 208

(1999).

Partly because of the above complaints, the U.S.

military has recently decided to adopt the larger-caliber 6.8mm rifle round. See C. Todd Lopez, Army Announces 2 New Rifles for Close-Combat Soldiers, U.S.

Dep’t of Defense (Apr. 22, 2022).14

D. Reports of the AR-15’s massive wounding power in Vietnam were proven

false by subsequent testing.

The Fourth Circuit’s Kolbe quotes a field test report from Vietnam describing the then-automatic AR15 as a “very lethal combat weapon” firing “very high

velocity” projectiles causing “[a]mputations of limbs,

massive body wounds, and decapitations.” Id. at 124.

This testing subsequently was shown to be irreproducible, and likely fabricated.

The 1962 military field testing in Vietnam was

part of Project AGILE, a research program of the Defense Department’s Advanced Research Projects

Agency (DARPA). At the time, the military was considering whether to replace the older M14 with the selectfire AR-15 as its primary combat rifle. Project AGILE

supplied rifles to South Vietnamese troops for field trials.

14

https://perma.cc/34NR-AGRW.

22

DARPA’s report claimed massive injuries from the

AR-15, including two amputations and a decapitation.

DARPA, Test of Armalite Rifle, AR-15, Annex A, at 5, 7

(July 31, 1962).15 Supposedly, the AR-15 inflicted “catastrophic wounds,” including one round that “took [the

head] completely off ” an enemy soldier, while another

round “in the right arm, took it completely off, too.”

Wounds to the torso caused “the abdominal cavity to

explode” and all wounds were fatal, including “extremity hits.”

Later, these gruesome anecdotes were exposed as

gross exaggerations designed to convince the military

to adopt the rifle. The Army’s Ballistic Research Laboratory tested the rifle in gelatin, animals, and cadavers

but could not duplicate the “theatrically grotesque

wounds” reported by Project AGILE. See C.J. Chivers,

THE GUN 283, 284-88 (2010); Blake Stevens & Edward

Ezell, THE BLACK RIFLE: M16 RETROSPECTIVE 110-16

(1994).

Attempting to reproduce the extreme results that

purportedly occurred in Vietnam, the Army Laboratory

even tried hollow-point rounds. While not used by the

military, hollow-points are very widely used by American law enforcement and citizens. Hollow-points generally produce more destructive wounds. Yet “even the

hollow-points failed to duplicate anything like the

spectacular effects recorded by the Vietnamese unit

commanders and their American advisors, which had

subsequently been taken as fact and much used in the

15

https://apps.dtic.mil/sti/pdfs/AD0343778.pdf.

23

. . . campaign to sell the AR-15.” Stevens & Ezell at

116.16

C.J. Chivers, a Pulitzer Prize-winning New York

Times journalist, extensively researched the testing for

his book The Gun. “No matter what they did, they were

unable to reproduce the effects that the participants in

Project AGILE claimed to have seen.” Chivers at 288.

The Ballistic Research Laboratory’s study was

kept secret for over four decades. As a result, “at the

most important time, during the early and mid-1960s,

the Project AGILE report, with its suspicious observations and false conclusions, remained uncontested. The

AR-15 continued to rise, boosted by a reputation for lethality and reliability that it did not deserve.” Id. at

289.

Dr. Fackler recounted how other claims in the

1960s and 1970s about the M16’s bullets causing “massive” and “devastating” injuries were disproven or contradicted by other reports. Martin Fackler, Gunshot

Wound Review, 28 Annals of Emergency Medicine 194,

194-95 (Aug. 1996). Delegates to war surgery conferences in the early 1970s “reported no unusual problems associated with ‘high-velocity’ bullet wounds in

Vietnam. There were no reports of rifle bullet wounds

causing traumatic amputations of an extremity.” Id.

According to Dr. Fackler, “In my experience and

16

Ezell served as Curator of the National Firearms Collection at the National Museum of American History, part of the

Smithsonian Institution. He founded the Institute for Research

on Small Arms in International Security.

24

research, at least as many M16 users in Vietnam concluded that [the M16 round] produced unacceptably

minimal, rather than ‘massive,’ wounds.” Martin Fackler, Literature Review at 40.

E. AR ammunition is safer than other

types because it is less likely to penetrate a wall.

Some gun ban advocates assert that AR rounds

are more likely to penetrate the walls within a building. To the contrary, AR bullets generally penetrate less

through building materials than do common handgun

rounds. That is one reason law enforcement officers often use ARs for raiding buildings and barricaded hostage situations. See Boone Decl. at J.A. 2168-69, in

Kolbe v. Hogan. A Massachusetts Municipal Police

training manual states that AR-15s are less dangerous

to bystanders because “the most popular patrol rifle

round, the 5.56mm NATO (.223 Remington) will penetrate fewer walls than service pistol rounds or 12

gauge slugs.” Massachusetts Municipal Police Training Committee, BASIC FIREARMS INSTRUCTOR COURSE:

PATROL RIFLE 3 (Sept. 2007).17

A founder and senior instructor of the Los Angeles Police Department’s Tactical Rifle Team explains

that “concerns about overpenetration and the danger

to the populace presented by missed rounds have

been greatly exaggerated. . . . [T]he 5.56mm/.223 is

relatively safer than pistol bullets for everyone in

17

https://perma.cc/M8VW-DUXR.

25

close-quarter-battle (CQB) application.” Gabriel Suarez, THE TACTICAL RIFLE: THE PRECISION TOOL FOR URBAN POLICE OPERATIONS 38 (1999).

AR rifle bullets do penetrate soft body armor,

which is designed only to stop handgun bullets. The

same is true for all other rifles, other than the tiny .22

rimfire. See U.S. Dep’t of Justice, National Inst. of Justice, Guide: Body Armor 12-13 (2014).18

IV. The deadliest firearms in mass shootings

are handguns.

Kolbe claimed that attacks with the banned semiautomatic rifles result in more deaths, more injuries,

and more severe injuries than attacks involving other

firearms. 849 F.3d at 125, 137, 144. Recent research on

mass shootings contradicts this claim.

Researchers led by Dr. Babak Sarani, founder and

chief of the Center for Trauma and Critical Care at

George Washington University Hospital, examined the

relationship between the type of firearm used, wounding characteristics, and probability of death in mass

shootings. Babak Sarani, et al., Wounding Patterns

Based on Firearm Type in Civilian Public Mass Shootings in the United States, 228 J. Amer. College Surgeons 228 (Mar. 2019). They studied firearm types and

autopsy reports for 232 victims from 23 mass shootings, including high-casualty shootings with “assault

weapons” at Orlando and Las Vegas.

18

https://www.ojp.gov/pdffiles1/nij/247281.pdf.

26

Surprisingly, the researchers found that mass

shootings with handguns are more lethal than those

with rifles because handguns result in more wounds

per victim and more injuries to vital organs. Id. at 22829, 232-33. “All of us were shocked,” Dr. Sarani said.

“We came to the table with our bias that an assault

weapon would be worse.” Carolyn Crist, Handguns

More Lethal Than Rifles in Mass Shootings, Reuters

(Dec. 31, 2018).19

Victims shot with a handgun were almost four

times more likely to have three or more wounds compared to those shot with a rifle. Thus “the probability

of death is higher for events involving a handgun than

a rifle.” Sarani at 232. Twenty-six percent of victims

shot with handguns and 16% shot with shotguns had

multiple fatal organ injuries; only 2% of those shot by

a rifle had two or more fatal organ injuries. Id. Wounds

to the brain and heart, which have the highest fatality

rates, were most likely when handguns were used. Id.

at 233. Victims shot with rifles were twice as likely to

have a preventable death (if medical care were rendered in time) than those shot with other firearms. Id.

at 231.

The handgun is the most common weapon used to

commit mass shootings. Criminals with handguns perpetrated high-casualty shootings at Virginia Tech (58),

Ft. Lauderdale (48), Killeen, Texas (45), Ft. Hood (45),

and Thousand Oaks (33), where the total casualties approximated or exceeded mass shootings with “assault

19

https://perma.cc/N9VY-CVUX.

27

weapons” at Highland Park (53), El Paso (49), Sutherland Springs (45), Uvalde (38), and Parkland (34). See

The Violence Project, Mass Shooter Database (vers. 8.0

January 2024).20 Overall, “assault weapons” have been

used in only 28% of mass shootings. Id.

V.

Maryland’s ban implicitly disparages law

enforcement officers and harms community relations.

Suppose the arguments about the AR’s “unusual

dangerousness” were accurate: the banned weapons

are useless for self-defense and instead are made solely

for mass homicide; every characteristic these arms

possess is designed for killing large numbers of people.

The rifles are so hideous – so useless for anything except carnage – that no one may have them. Except government law enforcement personnel.

Amici reject the libel that ordinary arms of American peace officers are weapons of mass killers. Consider the following descriptions:

•

“Officer Smith shot the suspect with a

common rifle, well-suited for lawful defense of self and others.”

•

“Officer Smith shot the suspect with a

weapon of war whose only purpose is

mass killing.”

20

https://www.theviolenceproject.org/mass-shooter-data-

base/.

28

The first statement is accurate. The second is the

Respondents’ view, and it inflames anger and hatred

against law-abiding law enforcement officers.

If Maryland prevails because AR rifles are held to

be mass murder weapons, police use of patrol rifles

may trigger complaints of excessive use of deadly force.

Although law enforcement officers are exempted from

the ban, they are not excused from the consequences of

using excessive force.

Law enforcement officers are not soldiers wielding

weapons of war, and their interactions with citizens

are not governed by rules of engagement for the battlefield. The challenged statute implicitly denigrates

peace officers by treating them like an occupying army.

Such negative attitudes make the public less willing to

cooperate with law enforcement and damage community relations.

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

29

CONCLUSION

ARs and other banned semiautomatic rifles are

superb for lawful defense of self and others. The assertions against them are implausible. The petition for

certiorari should be granted.

Respectfully submitted,

DAVID B. KOPEL

INDEPENDENCE INSTITUTE

727 East 16th Avenue

Denver, CO 80203

(303) 279-6536

david@i2i.org

Counsel of Record

E. GREGORY WALLACE

CAMPBELL UNIVERSITY

SCHOOL OF LAW

225 Hillsborough Street

Raleigh, NC 27603

(919) 696-3057

wallaceg@campbell.edu

JONATHAN D. GUZE

JOHN LOCKE FOUNDATION

4800 Six Forks Rd., Ste. 220

Raleigh, NC 27609

(919) 828-3876

jguze@lockehq.org