`
`
`
`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 21-1255
`
`
`DOMINIC BIANCHI, an individual and resident of Baltimore County; DAVID
`SNOPE, an individual and resident of Baltimore County; MICAH SCHAEFER, an
`individual and resident of Anne Arundel County; FIELD TRADERS LLC, A
`resident of Anne Arundel County; FIREARMS POLICY COALITION, INC.;
`SECOND AMENDMENT FOUNDATION; CITIZENS COMMITTEE FOR THE
`RIGHT TO KEEP AND BEAR ARMS
`
` Plaintiffs - Appellants
`
`v.
`
`ANTHONY G. BROWN, in his official capacity as Attorney General of Maryland;
`COL. WOODROW W. JONES, III, in his official capacity as Secretary of State
`Police of Maryland; R. JAY FISHER, in his official capacity as Sheriff of Baltimore
`County, Maryland; EVERETT L. SESKER, in his official capacity as Sheriff of
`Anne Arundel County, Maryland
`
` Defendants - Appellees
`
`-------------------------------------
`
`JOHN CUTONILLI
`
` Amicus Supporting Appellants
`
`and
`
`GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE; BRADY CENTER
`TO PREVENT GUN VIOLENCE; MARCH FOR OUR LIVES; EVERYTOWN
`FOR GUN SAFETY
`
`
` Amici Supporting Appellees.
`
`
`

`

`
`Appeal from the United States District Court for the District of Maryland at Baltimore.
`James K. Bredar, Senior District Judge. (1:20−cv−03495−JKB)
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`
`
`
`Argued: March 20, 2024
`
`
`Decided: August 6, 2024
`
`
`Before DIAZ, Chief Judge, and WILKINSON, NIEMEYER, KING, GREGORY, AGEE,
`WYNN, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, RUSHING,
`HEYTENS, BENJAMIN and BERNER, Circuit Judges.
`
`
`
`Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge
`Diaz, Judge King, Judge Wynn, Judge Thacker, Judge Harris, Judge Heytens, Judge
`Benjamin, and Judge Berner joined. Chief Judge Diaz wrote a concurring opinion, in which
`Judge King, Judge Wynn, Judge Thacker, Judge Benjamin, and Judge Berner joined. Judge
`Gregory wrote an opinion concurring in the judgment. Judge Richardson wrote a dissenting
`opinion, in which Judge Niemeyer, Judge Agee, Judge Quattlebaum, and Judge Rushing
`joined.
`
`
`
`ARGUED: Peter A. Patterson, COOPER & KIRK, PLLC, Washington, D.C., for
`Appellants. Robert A. Scott, OFFICE OF THE ATTORNEY GENERAL OF
`MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Raymond M.
`DiGuiseppe, THE DIGUISEPPE LAW FIRM, P.C., Southport, North Carolina; Adam
`Kraut, FIREARMS POLICY COALITION, Sacramento, California; David H. Thompson,
`Tiernan B. Kane, COOPER & KIRK, PLLC, Washington, D.C., for Appellants. Brian E.
`Frosh, Attorney General, Ryan R. Dietrich, Assistant Attorney General, OFFICE OF THE
`ATTORNEY GENERAL OF MARYLAND, for Baltimore, Maryland, for Appellees.
`John Cutonilli, Garret Park, Maryland, for Amicus John Cutonilli. Esther Sanchez-Gomez,
`Leigh Rome, William T. Rome, GIFFORDS LAW CENTER TO PREVENT GUN
`VIOLENCE, San Francisco, California, for Amicus Giffords Law Center to Prevent Gun
`Violence. Douglas N. Letter, Shira Lauren Feldman, BRADY CENTER TO PREVENT
`GUN VIOLENCE, Washington, D.C., for Amicus Brady Center to Prevent Gun Violence.
`Ciara Wren Malone, MARCH FOR OUR LIVES, New York, New York, for Amicus
`March for Our Lives. Eric B. Bruce, Jennifer Loeb, Washington, D.C., Aaron R. Marcu,
`Brandt Henslee, Yulia Dernovsky, Daniel Hodgkinson, Susannah Benjamin, Taylor
`Jachman, FRESHFIELDS BRUCKHAUS DERINGER US LLP, New York, New York,
`for Amici Giffords Law Center to Prevent Gun Violence, Brady Center to Prevent Gun
`Violence, and March for Our Lives. Janet Carter, William J. Taylor, Jr., Priyanka Gupta
`Sen, EVERYTOWN LAW, New York, New York, for Amicus Everytown for Gun Safety.
`
`
`
`
`2
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`

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`WILKINSON, Circuit Judge:
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`
`
`The elected representatives of the people of Maryland enacted the Firearms Safety
`
`Act of 2013 in the wake of mass shootings across the country and a plague of gun violence
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`in the state. This case is about whether the Act’s general prohibition on the sale and
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`possession of certain military-style “assault weapons,” including the AR-15, the AK-47,
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`and the Barrett .50 caliber sniper rifle, is unconstitutional under the Second Amendment.
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`
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`We considered this issue as an en banc court in Kolbe v. Hogan, 849 F.3d 114 (4th
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`Cir. 2017) (en banc), where we held that Maryland’s regulation of these assault weapons
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`is consistent with the Second Amendment. However, in New York State Rifle & Pistol
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`Ass’n v. Bruen, 597 U.S. 1 (2022), the Supreme Court clarified how courts are to resolve
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`Second Amendment challenges and rejected part of our approach in Kolbe.
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`With the respectful consideration and benefit of Bruen, we now uphold the judgment
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`below. The assault weapons at issue fall outside the ambit of protection offered by the
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`Second Amendment because, in essence, they are military-style weapons designed for
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`sustained combat operations that are ill-suited and disproportionate to the need for self-
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`defense. Moreover, the Maryland law fits comfortably within our nation’s tradition of
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`firearms regulation. It is but another example of a state regulating excessively dangerous
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`weapons once their incompatibility with a lawful and safe society becomes apparent, while
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`nonetheless preserving avenues for armed self-defense.
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`For these reasons, we decline to wield the Constitution to declare that military-style
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`armaments which have become primary instruments of mass killing and terrorist attacks in
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`the United States are beyond the reach of our nation’s democratic processes. In so holding,
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`

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`we offer no view on how a state should regulate firearms. Nor do we do anything to impose
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`Maryland’s regulations upon other states. We do hold, however, that Maryland was well
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`within its constitutional prerogative to legislate as it did. We therefore reject the challenges
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`of appellants and affirm the judgment of the district court.
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`Our friends in dissent would rule the Maryland statute unconstitutional. They would
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`go so far as to uphold a facial challenge to the enactment, meaning that there is no
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`conceivable weapon, no matter how dangerous, to which the Act’s proscriptions can
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`validly be applied. In so doing, they reject the centuries of common law that infused
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`accommodation in the rights our founding generation recognized. And in creating a near
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`absolute Second Amendment right in a near vacuum, the dissent strikes a profound blow
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`to the basic obligation of government to ensure the safety of the governed. Arms upon arms
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`would be permitted in what can only be described as a stampede toward the disablement
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`of our democracy in these most dangerous of times. All this we shall explain.
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`The Supreme Court remanded this case for reconsideration in light of Bruen, a task
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`which we shall, with great respect, perform. We conclude that Bruen did not mandate an
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`abandonment of our faith in self-governance, nor did it leave the balance struck throughout
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`our history of firearms regulation behind.
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`I.
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`
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`Maryland law prohibits any person in the state from selling, purchasing, receiving,
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`transporting, transferring, or possessing an “assault weapon,” subject to limited exceptions.
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`Md. Code, Crim. Law § 4-303. A violator of this statute faces up to three years’
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`imprisonment. Id. § 4-306. Maryland law enforcement officers are authorized to seize and
`4
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`

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`dispose of weapons sold, purchased, received, transported, transferred, or possessed in
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`violation of the law. Id. § 4-304.
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`
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`The statute defines “assault weapon” as “(1) an assault long gun; (2) an assault
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`pistol; or (3) a copycat weapon.” Id. § 4-301(d). The term “assault long gun,” in turn,
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`encompasses more than forty-five enumerated long guns “or their copies, regardless of
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`which company produced and manufactured” the firearm. Id. § 4-301(b); see Md. Code,
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`Pub. Safety § 5-101(r)(2). These proscribed guns include an assortment of military-style
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`rifles and shotguns capable of semiautomatic fire, such as the AK-47, almost all models of
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`the AR-15, the SPAS-12, and the Barrett .50 caliber sniper rifle. See Md. Code, Pub. Safety
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`§ 5-101(r)(2). The term “assault pistol” encompasses more than fifteen enumerated
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`firearms and their copies. These include the TEC-9 and semiautomatic variants of the
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`MAC-10, MP5K, UZI, and other military-style submachine guns. Md. Code, Crim. Law
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`§ 4-301(c).
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`“Copycat weapon” is defined as a firearm that is not an assault long gun or assault
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`pistol yet is covered by at least one of the following six categories:
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`
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`(i) a semiautomatic centerfire rifle that can accept a detachable magazine
`and has any two of the following:
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`1. a folding stock;
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`2. a grenade launcher or flare launcher; or
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`3. a flash suppressor;
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`(ii) a semiautomatic centerfire rifle that has a fixed magazine with the
`capacity to accept more than 10 rounds;
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`5
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`(iii) a semiautomatic centerfire rifle that has an overall length of less than 29
`inches;
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`(iv) a semiautomatic pistol with a fixed magazine that can accept more than
`10 rounds;
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`(v) a semiautomatic shotgun that has a folding stock; or
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`(vi) a shotgun with a revolving cylinder.
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`Id. § 4-301(h).
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`Appellants are three Maryland residents who allege that they are legally eligible to
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`possess and acquire firearms, three nonprofit gun rights organizations to which the
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`residents belong, and a licensed firearms dealer based in Maryland. On November 13,
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`2020, appellants filed a complaint under 42 U.S.C. § 1983 in the U.S. District Court for the
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`District of Maryland against the then-Attorney General of Maryland and other state law
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`enforcement officials. Appellants contended that these officials’ enforcement of
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`Maryland’s assault weapons regulations was unconstitutional under the Second
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`Amendment’s right to keep and bear arms as applied to the states through the Fourteenth
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`Amendment. They sought a declaratory judgment that the regulations prevented them from
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`exercising their right to keep and bear arms, as well as an injunction to prohibit appellees
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`from enforcing the statute.
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`In their complaint, however, appellants “acknowledge[d] that the result they seek is
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`contrary to Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017).” J.A. 6. In Kolbe, we upheld
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`against a constitutional challenge the very same Maryland statute at issue here insofar as it
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`applied to “assault long guns and those copycat weapons that are rifles and shotguns.”
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`Kolbe, 849 F.3d at 122 n.2. Our en banc opinion rested on two distinct grounds. We first
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`6
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`concluded that the assault weapons at issue were “not constitutionally protected arms.” Id.
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`at 130 (emphasis omitted). We then found that, even assuming the Second Amendment
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`reached such weapons, the Maryland regulations survived intermediate scrutiny. Id.
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`In the instant case, appellees answered the complaint by citing Kolbe and arguing
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`that the suit should be dismissed for failure to state a claim. The district court agreed and
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`dismissed the case on March 3, 2021. It noted that Kolbe controlled and agreed with
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`appellants’ concession that the court “ha[d] no discretion but to dismiss [their] complaint.”
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`J.A. 42. Appellants timely appealed. Their brief focused on the statute’s regulation of
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`semiautomatic assault rifles, as opposed to the parts of the statute targeting semiautomatic
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`assault pistols and shotguns.
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`We affirmed the district court in a per curiam opinion on September 14, 2021. We
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`too noted that appellants had conceded their argument was “squarely foreclosed” by Kolbe,
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`and we observed that a panel of our court is “not authorized to reconsider an en banc
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`holding.” Bianchi v. Frosh, 858 F. App’x 645, 646 (4th Cir. 2021) (internal quotation
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`marks omitted).
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`Appellants petitioned the Supreme Court for writ of certiorari on December 16,
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`2021, arguing that our en banc decision in Kolbe should be overturned. See Petition for
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`Writ of Certiorari, Bianchi v. Frosh, 142 S. Ct. 2898 (2022) (mem.) (No. 21-902).
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`Appellees responded at the Court’s request. See id.
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`On June 23, 2022, before ruling on the cert petition, the Supreme Court decided
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`New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). In Bruen, the Court
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`disavowed as “one step too many” the two-step framework that our court used in Kolbe
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`and that other federal circuit courts had nearly universally employed to assess Second
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`Amendment claims in the wake of District of Columbia v. Heller, 554 U.S. 570 (2008).
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`Bruen, 597 U.S. at 19. Although “[s]tep one of the predominant framework”—which was
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`“rooted in the Second Amendment’s text, as informed by history”—was “broadly
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`consistent with Heller,” the Court emphasized that the “means-end scrutiny” at the second
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`step was improper. Id. Because “the Second Amendment . . . codified a pre-existing right,”
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`courts were not to engage in interest balancing to determine whether a challenged
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`regulation was constitutionally permissible. Id. at 20 (quoting Heller, 554 U.S. at 592).
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`Instead, we were tasked with discerning the historical scope of the right and parsing
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`whether the challenged regulation was consistent with it. Id. at 22–24.
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`A week after Bruen was decided, the Supreme Court granted appellants’ petition for
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`writ of certiorari, vacated the judgment, and remanded the case for further consideration in
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`light of Bruen. See Bianchi v. Frosh, 142 S. Ct. at 2898–99. We ordered the parties to
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`provide supplemental briefing, and a panel of this court heard oral argument on December
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`6, 2022. Before an opinion issued, however, our court voted to rehear the case en banc. We
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`received additional supplemental briefing from the parties, and heard oral argument as a
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`full court on March 20, 2024. Now, with the benefit of Bruen, we can proceed to decide
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`this case.1
`
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`1 We thank our friend Judge Richardson for his dissenting opinion. The procedural
`history to which he alludes, see Dissenting Op. at 87 n.2, reflects nothing more than the
`good-faith efforts of every member of our court to reach a well-reasoned decision in a
`challenging set of cases.
`
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`
`8
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`II.
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`The Second Amendment instructs, “A well regulated Militia, being necessary to the
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`security of a free State, the right of the people to keep and bear Arms, shall not be
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`infringed.” U.S. Const. amend. II. This single sentence provides us with a lofty command,
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`but little concrete guidance. In the past two decades, the Supreme Court has stepped in to
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`provide this guidance, offering a methodological framework by which to structure our
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`inquiry.
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`
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`The development of this framework began with District of Columbia v. Heller, 554
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`U.S. 570 (2008). In Heller, the Supreme Court held that the Second Amendment safeguards
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`the right to possess a firearm within one’s home for self-defense. Id. at 635. To reach that
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`conclusion, the Court distilled the Second Amendment into its constituent parts, engaged
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`in linguistic and historical analysis to interpret the original meaning of each, and
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`determined that the Amendment “guarantee[s] the individual right to possess and carry
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`weapons in case of confrontation.” Id. at 592. The Court recognized that the Amendment
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`“codified a pre-existing right” to keep and bear arms, id., which, at the time of the nation’s
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`founding, was understood by Americans to be a “right of self-preservation,” id. at 595
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`(quoting 2 Blackstone’s Commentaries: With Notes of Reference 145 n.42 (St. George
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`Tucker ed. 1803) [hereinafter Tucker’s Blackstone]). The Court therefore found that “self-
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`defense” is “the central component of the right.” Id. at 599.
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`
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`In rejecting the “argument, bordering on the frivolous, that only those arms in
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`existence in the 18th century are protected by the Second Amendment,” the Court in Heller
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`stated that “the Second Amendment extends, prima facie, to all instruments that constitute
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`bearable arms, even those that were not in existence at the time of the founding.” Id. at 582.
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`The Court clarified this statement later in the opinion, where it emphasized that “[l]ike
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`most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626.
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`There, the Court explained that the Second Amendment does not guarantee “a right
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`to keep and carry any weapon whatsoever in any manner whatsoever and for whatever
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`purpose.” Id. Indeed, the Court found it would be “startling” to read the Second
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`Amendment such that “the National Firearms Act’s restrictions on machineguns . . . might
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`be unconstitutional.” Id. at 624. Thus, the Court acknowledged that it was not in serious
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`dispute that “weapons that are most useful in military service—M-16 rifles and the like—
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`may be banned.” Id. at 627.
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`
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`The Court recognized an additional limitation on the types of arms that the Second
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`Amendment protects. It interpreted the holding of a previous Second Amendment decision,
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`United States v. Miller, 307 U.S. 174 (1939), to stand for the proposition “that the Second
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`Amendment does not protect those weapons not typically possessed by law-abiding
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`citizens for lawful purposes, such as short-barreled shotguns.” Heller, 554 U.S. at 625. In
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`other words, “dangerous and unusual weapons” that are not “in common use” can be
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`prohibited. Id. at 627.
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`
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`In the wake of Heller’s recognition of the individual right to keep and bear arms and
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`its limitations, circuit courts across the nation—including ours—interpreted Heller to
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`permit a means-end approach for assessing the constitutionality of firearms regulations.
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`See, e.g., Kolbe, 849 F.3d at 133; N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242,
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`254 & n.49 (2d Cir. 2015); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d
`10
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`1318, 1322 (11th Cir. 2015). In evaluating such regulations against Second Amendment
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`challenges, a court would first inquire “whether the challenged law imposes a burden on
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`conduct falling within the scope of the Second Amendment’s guarantee.” Kolbe, 849 F.3d
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`at 133. If the challenged law did so, the court would then apply either intermediate or strict
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`scrutiny, “depend[ing] on the nature of the conduct being regulated and the degree to which
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`the challenged law burdens the right.” Id.
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`
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`As this approach percolated in the lower courts, the Supreme Court’s subsequent
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`Second Amendment opinions did little to alter the status quo. In McDonald v. City of
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`Chicago, the Court held that “the Second Amendment right is fully applicable to the
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`States,” but otherwise endorsed Heller as is. 561 U.S. 742, 791 (2010). And in Caetano v.
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`Massachusetts, a per curiam Court reaffirmed two aspects of Heller: that “the Second
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`Amendment extends . . . to . . . arms . . . that were not in existence at the time of the
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`founding”; and that the Second Amendment may protect arms beyond “weapons useful in
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`warfare.” 577 U.S. 411, 412 (2016) (internal quotation marks omitted) (quoting Heller,
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`554 U.S. at 582).
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`
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`Then came Bruen. Rejecting the means-end approach of the lower courts, the Bruen
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`Court set out a two-step methodology oriented towards text, history, and tradition. Under
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`this approach, a court first looks to the text of the Second Amendment to see if it
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`encompasses the desired conduct at issue. 597 U.S. at 24. If the text does not extend to the
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`desired conduct, that conduct falls outside the ambit of the Second Amendment, and the
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`government may regulate it. But if a court finds that the text does encapsulate the desired
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`conduct, the analysis moves to the second step, where the burden shifts to the government
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`to “justify its regulation by demonstrating that it is consistent with the Nation’s historical
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`tradition of firearm regulation.” Id. Only if such consistency is shown can a court conclude
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`that the regulation is constitutionally permissible. Id.
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`
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`The Court in Bruen found that the New York regulation at issue, which required an
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`individual to “demonstrate a special need for self-protection distinguishable from that of
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`the general community” before he could carry a handgun outside of his home, did not
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`satisfy this history-and-tradition test. Id. at 70. The Court first determined that the
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`plaintiffs’ “proposed course of conduct—carrying handguns publicly for self-defense”
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`readily fell within the plain text of the Second Amendment. Id. at 32. Thus, the burden
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`shifted to New York to show that its regulation was “consistent with this Nation’s historical
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`tradition of firearm regulation.” Id. at 33–34.
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`
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`After examining multiple historical regulations on the public carry of weapons, the
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`Bruen Court determined that none of them was sufficiently analogous to the regulation at
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`issue. See id. at 38–70. Specifically, the Court held that the New York regulation was
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`unconstitutional because, “[a]part from a few late-19th-century outlier jurisdictions,
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`American governments simply have not broadly prohibited the public carry of commonly
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`used firearms for personal defense,” nor have these governments “required law-abiding,
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`responsible citizens to demonstrate a special need . . . in order to carry arms in public.” Id.
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`at 70 (internal quotation marks omitted).
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`
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`In so holding, the Bruen Court was clear that it was “apply[ing]” the “test that [it]
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`set forth in Heller.” Id. at 26. It reiterated that “the right secured by the Second Amendment
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`is not unlimited,” and, as such, it is “not a right to keep and carry any weapon whatsoever
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`in any manner whatsoever and for whatever purpose.” Id. at 21 (quoting Heller, 554 U.S.
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`at 626). Justice Alito further elaborated on this point in his concurrence, explaining that the
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`majority’s “holding decides nothing . . . about the kinds of weapons that people may
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`possess. Nor have we disturbed anything that we said in Heller or McDonald . . . about
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`restrictions that may be imposed on the possession or carrying of guns.” Id. at 72 (Alito,
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`J., concurring).
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`III.
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`
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`With this background in mind, we proceed to our analysis of the assault weapons
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`regulations at issue. We hold that the covered firearms are not within the scope of the
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`constitutional right to keep and bear arms for self-defense, and thus Maryland’s regulation
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`of them can peaceably coexist with the Second Amendment. Moreover, even if the text of
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`the Second Amendment were read to encompass the covered firearms, the statutory
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`provisions at issue would nonetheless be constitutional. Our nation has a strong tradition
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`of regulating excessively dangerous weapons once it becomes clear that they are exacting
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`an inordinate toll on public safety and societal wellbeing.
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`This conclusion that the Maryland regulation is consistent with the Constitution is
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`not some sort of edict to the rest of the states, obligating them to follow suit. States may
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`take a variety of approaches to address the nation’s mass shooting crisis beyond the
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`regulation of firearms, such as expanding mental health services or bolstering law
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`enforcement’s capacity to respond. We make no comment on the effectiveness of these or
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`any other measures. We simply recognize that Maryland acted well within the scope of its
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`own police powers in responding to the demands of its own citizens. Nothing in our opinion
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`foists the values of Maryland upon, say, South Carolina, or those of South Carolina upon
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`Maryland. We choose to honor the worthy virtues of federalism and democracy, not to
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`stifle them. To do otherwise would unduly impede the workings of legislative bodies across
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`our country as they struggle to meet the challenges of today and tomorrow.
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`A.
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`Pursuant to Bruen, we begin by asking whether the “plain text” of the Second
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`Amendment guarantees the individual right to possess the assault weapons covered by the
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`Maryland statute. 597 U.S. at 24. At first blush, it may appear that these assault weapons
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`fit comfortably within the term “arms” as used in the Second Amendment.
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`We know, however, that text cannot be read in a vacuum. See Biden v. Nebraska,
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`600 U.S. 477, 511 (2023) (Barrett, J., concurring) (“To strip a word from its context is to
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`strip that word of its meaning.”). Heller and Bruen confirmed the importance of reading
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`the Amendment in context by repeatedly emphasizing that “it has always been widely
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`understood that the Second Amendment . . . codified a pre-existing right.” Bruen, 597 U.S.
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`at 20 (quoting Heller, 554 U.S. at 592); see also United States v. Price, No. 22-4609, slip
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`op. at 8–12 (4th Cir. Aug. 6, 2024) (majority opinion). In other words, the Second
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`Amendment codified “the right to keep and bear arms”: a specific entitlement with a
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`particular meaning in the ratifying public’s consciousness, with baked-in prerogatives and
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`qualifications alike. See Bruen, 597 U.S. at 21 (“[L]ike most rights, the right secured by
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`the Second Amendment is not unlimited.” (quoting Heller, 554 U.S. at 626)).
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`
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`This understanding of the text of the Second Amendment is consistent with the way
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`we read other constitutional provisions. Take the First Amendment. See id. at 24–25
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`(analogizing the Court’s Second Amendment framework to “how we protect other
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`constitutional rights” like “the freedom of speech in the First Amendment”). That provision
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`establishes that “Congress shall make no law . . . abridging the freedom of speech.” U.S.
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`Const. amend. I. Reading the text devoid of its historical context, one might conclude that
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`the Constitution prohibits governmental restrictions on libel, incitement, true threats,
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`fighting words, or falsely shouting fire in a crowded theater. Such activity is, after all,
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`“speech.” But effective constitutional interpretation requires a recognition that the First
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`Amendment was enacted against a backdrop of laws and societal understandings that
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`circumscribed these types of communications because they did not advance the underlying
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`purposes that the right to free speech was codified to protect. See United States v. Rahimi,
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`144 S. Ct. 1889, 1911–12 (2024) (Kavanaugh, J., concurring); Heller, 554 U.S. at 595
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`(“[W]e do not read the First Amendment to protect the right of citizens to speak for any
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`purpose.”); Bruen, 597 U.S. at 15 (same) (citing U.S. Const. amend. I). Thus, inherent in
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`the Speech Clause is the limitation that certain types of activity that fall within a literal
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`reading of the word “speech” are not protected by the free speech right enshrined in the
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`First Amendment.
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`The upshot is that the text of the Second Amendment, like the text of other
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`constitutional provisions, must be interpreted against its historical and legal backdrop. See
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`Bruen, 597 U.S. at 25 (endorsing “reliance on history to inform the meaning of
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`constitutional text—especially text meant to codify a pre-existing right”). What we must
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`do under Bruen, then, is assess the historical scope of the right to keep and bear arms to
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`determine whether the text of the Second Amendment encompasses the right to possess the
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`assault weapons at issue. See Price, No. 22-4609, slip op. at 12–13 (majority opinion)
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`(“[W]e can only properly apply step one of the Bruen framework by looking to the
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`historical scope of the Second Amendment right.”).
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`B.
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`This was the question we earlier faced as an en banc court in Kolbe. Our primary
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`holding in that case was that the assault weapons regulated by the statute were not within
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`the scope of the Second Amendment. 849 F.3d at 136. Specifically, we resolved the case
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`by finding that the covered weapons were “‘like’ ‘M-16 rifles’, i.e., ‘weapons that are most
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`useful in military service,’ and thus outside the ambit of the Second Amendment.” Id.
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`(quoting Heller, 554 U.S. at 627). It was only after “we affirm[ed] the district court’s award
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`of summary judgment in favor of the State” on those grounds that we turned to finding,
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`“[i]n the alternative,” that the assault weapons regulations survived intermediate scrutiny.
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`Id. at 137–38.
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`It is true that Kolbe was decided before Bruen. But contrary to appellants’ claims,
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`Bruen did not abrogate Kolbe’s entire holding. While the Court in Bruen held that the
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`means-end balancing we conducted in our secondary, alternative analysis was “one step
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`too many,” it did not disturb our principal holding that the covered assault weapons were
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`outside the ambit of the individual right to keep and bear arms. Bruen, 597 U.S. at 19. The
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`Court was careful to note that only “the Courts of Appeals’ second step” was “inconsistent
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`with Heller’s historical approach and its rejection of means-end scrutiny.” Id. at 24. On the
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`other hand, when it came to our primary approach, the Bruen Court did not reject this type
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`of analysis, finding that it was “broadly consistent with Heller.” Id. at 19; see also Hanson
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`v. District of Columbia, 671 F. Supp. 3d 1, 8 (D.D.C. 2023) (“Bruen did not disturb the
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`analysis Courts of Appeals conducted under the first step of their framework.”). We
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`therefore respectfully reaffirm the conclusion we reached in Kolbe that the covered
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`weapons “are not constitutionally protected arms.” 849 F.3d at 130 (emphasis omitted).
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`C.
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`The validity of this conclusion becomes clear when viewed in light of the purpose
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`of the individual right to keep and bear arms. Heller established that “the central
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`component” of the individual right codified by the Second Amendment was “self-defense.”
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`554 U.S. at 599; see also Bruen, 597 U.S. at 32; McDonald, 561 U.S. at 767. The common-
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`law right to self-defense, in turn, was understood by the founding generation to mean the
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`right of “a citizen to ‘repel force by force’ when ‘the intervention of society in his behalf,
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`may be too late to prevent an injury.’” Heller, 554 U.S. at 595 (quoting 2 Tucker’s
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`Blackstone 145) (internal alteration omitted). The pre-existing right codified by the Second
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`Amendment is thus about amplifying the power of individual citizens to project force
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`greater than they can muster with their own bodies so that they may protect themselves
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`when government cannot.
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`Limitations on this right to self-defense have been recognized in common law since
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`before our nation’s founding. One involves the necessity of imminence. A citizen cannot
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`launch a preemptive assault against another when he faces solely the possibility of some
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`threat hours or days away, or when he is seeking revenge for a harm already wrought by
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`another. See 4 William Blackstone, Commentaries of the Laws of England 184 (1769)
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`[hereinafter Blackstone] (“This right of natural defence does not imply a right of attacking:
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`for, instead of attacking one another for injuries past or impending, men need only have
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`recourse to the proper tribunals of justice.”). Rather, force may only be used in self-defense
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`when reasonably necessary. See id. (stating “the right of preventive defence” may only be
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`exercised “when certain and immediate suffering would be the consequence of waiting for
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`the assistance of the law”). A second limitation circumscribes who can be the object of
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`force used in self-defense. A citizen generally cannot use force against an innocent
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`bystander to protect himself from an assailant, such as by turning the bystander into a
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`human shield. See id. at 30 “([T]hough a man be violently assaulted, and hath no other
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`possible means of escaping death, but by killing an innocent person; this fear and force
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`shall not acquit him of murder; for he ought rather to die himself, than escape by the murder
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`of an innocent.”). Yet another limitation is on the amount of force that may be used. Deadly
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`force, for example, generally may not be used except against a person who poses an
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`impending threat of death or serious bodily harm. See id. at 185 (“The party assaulted must
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`therefore flee . . . as far as the fierceness of the assault will permit him: for it may be so
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`fierce as not to allow him to yield a step, without manifest danger of his life, or enormous
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`bodily harm; and then in his defence he may kill his assailant instantly.”).
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`The above limitations and qualifications do not undermine the importance of self-
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`defense when one’s person is imperiled. And the exact scope of the self-defense right has
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`ebbed and flowed over time and across jurisdictions. Compare id. (requiring where
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`possible a defender flee before using deadly force), with Tex. Penal Code § 9.31
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`(permitting a defender to stand his ground). But meaningful limits on the right have always
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`e