Clark et al v. Shawnee, Kansas, City of, No. 5:2015cv04965 - Document 140 (D. Kan. 2017)

Court Description: MEMORANDUM AND ORDER denying 86 , 128 Motions for Partial Summary Judgment; denying 124 , 134 Motions for Review; denying 130 Motion to Strike; granting 108 Motion for Summary Judgment. Signed by U.S. District Senior Judge Sam A. Crow on 1/5/17. Mailed to pro se parties Eric Clark, Jonathan Clark by regular mail (msb)

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Clark et al v. Shawnee, Kansas, City of Doc. 140 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS JONATHAN CLARK and ERI C S. CLARK, Plaint iffs, vs. Case No. 15- 4965- SAC THE CI TY OF SHAWNEE, KANSAS, Defendant . MEMORANDUM AND ORDER The case com es before t he court on t he following m ot ions t hat are ripe for decision: t he m ot ion for part ial sum m ary j udgm ent ( Dk. 86) by t he plaint iffs Jonat han and Eric Clark; t he defendant Cit y of Shawnee’s, ( “ Cit y’s” ) , m ot ion for sum m ary j udgm ent ( Dk. 108) ; t he plaint iffs’ m ot ion for review ( Dk. 124) ; t he plaint iffs’ second m ot ion for part ial sum m ary j udgm ent ( Dk. 128) ; t he Cit y’s m ot ion t o st rike ( Dk. 130) ; and t he plaint iffs’ m ot ion t o review ( Dk. 134) . While docket ed as a m ot ion for review, t he plaint iffs’ filing ( Dk. 124) sim ply asks t he court t o subst it ut e “ prim ary” for “ second” on page four of t heir filed response ( Dk. 120) t o t he defendant ’s sum m ary j udgm ent m ot ion. The defendant does not oppose t his change. The court sum m arily grant s t he plaint iffs’ m ot ion ( Dk. 124) request ing t his change. The court also sum m arily denies t he Cit y’s m ot ion t o st rike ( Dk. 130) , because m any of t he argum ent s are sim ilar t o t hose subst ant ively rej ect ed in t he court ’s prior order of Oct ober 4, 2016, ( Dk. 107) , and Dockets.Justia.com because a decision on t he ot her argum ent s will not m at erially advance t he disposit ion of t he case. Finally, t he court sum m arily denies t he plaint iffs’ last m ot ion for review ( Dk. 138) , because it fails t o m ake an arguable showing t hat t he m agist rat e’s order denying t heir m ot ion t o com pel was erroneous or cont rary t o law. Thus, t he court will decide t he t hree pending sum m ary j udgm ent m ot ions by narrowing it s focus t o t he com m on disposit ive issues. SUM M ARY JUD GM EN T STAN D ARD S “ Sum m ary j udgm ent is appropriat e only if ‘t he m ovant shows t hat t here is no genuine issue as t o any m at erial fact and t he m ovant is ent it led t o j udgm ent as a m at t er of law.’” Tolan v. Cot t on, ––– U.S. ––––, 134 S.Ct . 1861, 1866, 188 L.Ed.2d 895 ( 2014) ( quot ing Fed. R. Civ. P. 56( a) ) . A fact ual disput e is “ m at erial” only if it “ m ight affect t he out com e of t he suit under t he governing law.” Anderson v. Libert y Lobby, 477 U.S. 242, 248 ( 1986) . A “ genuine” fact ual disput e requires m ore t han a m ere scint illa of evidence in support of a part y's posit ion. I d. at 252. The m oving part y has t he init ial burden of show ing “ t he absence of a genuine issue of m at erial fact ,” and, if carried, t he non- m oving part y t hen “ m ust bring forward specific fact s showing a genuine issue for t rial as t o t hose disposit ive m at t ers for which [ it ] carries t he burden of proof.” Nat ional Am erican I ns. Co. v. Am erican Re- I nsurance Co., 358 F.3d 736, 739 ( 10t h Cir. 2004) ( int ernal quot at ion m arks and cit at ion om it t ed) . At t he sum m ary j udgm ent st age, t he court is not t o be weighing evidence, credit ing 2 som e over ot her, or det erm ining t he t rut h of disput ed m at t ers, but is only t o be deciding if a genuine issue for t rial exist s. Tolan, 134 S. Ct . at 1866. The court perform s t his t ask wit h a view of t he evidence t hat favors m ost t he part y opposing sum m ary j udgm ent . I d. Sum m ary j udgm ent m ay be grant ed if t he nonm oving part y's evidence is m erely colorable or is not significant ly probat ive. Libert y Lobby, 477 U.S. at 250–51. Essent ially, t he inquiry is “ whet her t he evidence present s a sufficient disagreem ent t o require subm ission t o t he j ury or whet her it is so one- sided t hat one part y m ust prevail as a m at t er of law.” I d. at 251–52. STATEM EN T OF FACTS On Decem ber 2, 2013, wit hin t he lim it s of t he Cit y of Shawnee, Kansas, t he defendant Jonat han Clark was driving his t ruck which was pulling a t railer loaded wit h wooden pallet s. Nat han Karlin, a police officer wit h t he Cit y of Shawnee, was driving his pat rol car when he saw Jonat han’s t ruck and t railer ahead. As it began t o pull over t o t he side of t he road, Officer Karlin act ivat ed his em ergency light s and st opped behind Jonat han’s t ruck and t railer. Officer Karlin st opped because t he t railer’s load was not secured. Officer Karlin also believed t he t railer w as one t hat required a license plat e, and he saw none. Officer Karlin asked Jonat han t o produce proof of insurance. When Jonat han opened t he driver’s- side door of his t ruck, Officer Karlin saw a handgun in t he door well. The handgun was not encased, but holst ered, 3 and it appeared t o be loaded. At t his point , Officer Karlin grabbed t he handgun from t he door well and ordered Jonat han who was in t he cab t o put his hands up. Thinking t he sit uat ion was t hreat ening, Officer Karlin ordered Jonat han t o go t o t he front of t he t ruck and t o get on t he ground. Jonat han com plied, and Officer Karlin handcuffed him wit hout incident and asked him if he had a concealed carry perm it . Jonat han t old t he officer t hat he did not have a perm it . Jonat han was lat er placed in a second officer’s vehicle while his t ruck was searched. Officer Karlin found in t he t ruck cab anot her loaded handgun which also was not encased. Officer Karlin provided Jonat han wit h a not ice t o appear for t hree ordinance violat ions: ( 1) unlawful use of a firearm ; ( 2) spilling loads on highway due t o failure t o secure load, and ( 3) no regist rat ion on t he t railer. About 50 m inut es aft er t he init ial st op, Officer Karlin released Jonat han at t he scene, but Jonat han’s firearm s were seized by Officer Karlin. The court has previously sum m arized t he procedural disposit ion of t hese violat ions in a prior order. ( Dk. 16, pp. 10- 11) . I n short , Jonat han was convict ed in m unicipal court of t he firearm and spilling violat ions. Before t he dist rict court , Jonat han was convict ed of t he spilling violat ion but t he cit y dism issed t he firearm violat ion. Eric Clark was not a passenger in t he t ruck, was not at t he scene of t he arrest , and was not wit h Jonat han im m ediat ely before, during or aft er t he t raffic st op, arrest and search. Eric has never been det ained or charged 4 wit h violat ing t he firearm ordinance in quest ion. Eric does not have a conceal carry perm it . Eric st at ed in his deposit ion t hat t here was “ about a dozen” t im es when he did not carry any firearm while in t he Cit y of Shawnee during t he period bet ween Decem ber 2, 2013, t he dat e of Jonat han’s t raffic st op, and August 25, 2014, t he repeal dat e of t he firearm ordinance. ( Dk. 109- 3, p. 6) . Eric also t est ified t hat “ once or t wice” during t he sam e t im e period he “ carried a loaded unencased firearm [ ] in t he Cit y of Shawnee.” I d. at p. 5. The firearm ordinance in quest ion is t he Cit y of Shawnee’s § 9.13.040 Crim inal Possession of a Firearm ( “ Ordinance” ) , t hat was in force on Decem ber 2, 2013, and t hat m ade it an unlawful act prohibit ed wit hin t he Cit y t o crim inally possess a firearm by “ Transport ing a Firearm in any air, land, or wat er vehicle, unless t he Firearm is unloaded and encased in a cont ainer which com plet ely encloses t he Firearm .” ( Dk. 87- 1, pp. 9- 10) . This Ordinance was repealed on August 25, 2014, as a result of a st at e law m aking all ordinances null and void which were adopt ed prior t o July 1, 2014, and which governed t he “ t ransport ing of firearm s or am m unit ion.” ( Dk. 87- 1, p. 21) . STAN D I N G OF ERI C CLARK This will be t he court ’s t hird chance t o consider t his issue. The plaint iff Eric has been afforded a full opport unit y t o present t he fact ual and legal m erit s t o his som ewhat unusual posit ion. I n effect , Eric is bringing “ a pre- enforcem ent challenge t o a cit y crim inal ordinance t hat has since been 5 repealed.” ( Dk. 16, p. 6) . The uncont est ed record fully est ablishes t hat he no longer faces any credible t hreat of prosecut ion under t he ordinance. St at e law now forecloses t he Cit y from having an ordinance t hat governs t he t ransport at ion of firearm s. Consequent ly, t he plaint iffs’ second am ended com plaint seeks relief only in t he form of com pensat ory dam ages and m akes no claim for inj unct ive or declarat ory relief. I n t he sam e vein, t he plaint iffs’ sum m ary j udgm ent filings reit erat e t hat t hey “ are not seeking t o have any ordinance or regulat ion de cla r e d as unconst it ut ional, nor seeking inj unct ive or prospect ive relief.” ( Dk. 87, p. 29) ( em phasis in original) . Eric’s st anding, t herefore, is det erm ined solely by his claim of com pensat ory dam ages for inj uries allegedly sust ained because t he ordinance was in effect from Decem ber 2, 2013, t hrough August 24, 2014, even t hough it was never enforced against him . Count one of t he second am ended com plaint does allege t hat t he “ plaint iff Uncle Eric . . . has suffered dam ages including em ot ional dist ress, m ent al anguish, and loss of enj oym ent of life.” ( Dk. 45, ¶ 42) . I n his sum m ary j udgem ent filings, Eric explains his inj uries t o result from t he ordinance’s im pact on his decisions t o act and on his relat ed em ot ional experiences. He has t est ified t hat t here were “ about a dozen” t im es when t he ordinance influenced or chilled his behavior so t hat he did not carry any firearm while in t he Cit y of Shawnee. ( Dk. 111- 3, p. 7) . There also were one or t wo t im es when, not w it hst anding t he ordinance, he decided 6 t o carry a loaded and non- encased firearm while in t he Cit y of Shawnee. ( Dk. 109- 3, pp. 5- 6) . Eric expands his allegat ions of a chilling im pact by arguing t hat he even felt com pelled t o not carry a loaded firearm from his house across his curt ilage before clim bing int o his vehicle and driving away. ( Dk. 118- 1, pp. 3- 6) . 1 As far as t ransport ing a firearm in com pliance wit h t he form er ordinance, Eric opines t hat t ransport ing an unloaded and encased firearm w ould have been m ore det rim ent al t o his safet y t han t ransport ing no weapon. I d. Eric at t ribut es his inj uries not only from not carrying a firearm under t he t hreat of being arrest ed but also from t he “ suffering of m ent al anguish sim ilar t o t hose of being held against your will ( or worse) which is never a pleasant feeling and when it is backed by t hreat of arrest w hich m eans pot ent ial deat h during t he process, it exacerbat es t he m ent al anguish all t he m ore.” I d. at p. 6. Eric’s filings are replet e wit h his conj ect ure over fears, apprehensions, t hreat s and inj uries t hat t his ordinance caused him during t his nine- m ont h period. Art icle I I I lim it s federal court j urisdict ion t o cases and cont roversies in t he underst anding t hat “ t he t radit ional role of AngloAm erican court s, . . . is t o redress or prevent act ual or im m inent ly t hreat ened inj ury t o persons caused by privat e or official violat ion of law.” 1 As t he Cit y point s out , Eric has failed t o show t hat he lived in t he Cit y of Shawnee during t he relevant period, and he list s his current address as being in William sburg, Kansas. The court agrees wit h t he Cit y t hat Eric’s use of “ second hom e” t o describe Jonat han Clark’s residence in Shawnee is a conclusion t hat lacks m eaning and needs evident iary support and explanat ion, and none has been provided. 7 Sum m ers v. Eart h I sland I nst it ut e, 555 U.S. 488, 492 ( 2009) . This doct rine of st anding dem ands t hat a federal court sat isfy it self “ t hat t he plaint iff has alleged such a personal st ake in t he out com e of t he cont roversy as t o warrant his invocat ion of federal- court j urisdict ion.” I d. at 493 ( int ernal quot at ion m arks, cit at ions, and it alics om it t ed) . The burden rest s wit h t he plaint iff t o show “ st anding for each t ype of relief sought .” I d. ( cit at ion om it t ed) . For ret rospect ive relief like com pensat ory dam ages, st anding is based on past inj uries. Dias v. Cit y and Count y of Denver, 567 F.3d 1169, 1176 ( 10t h Cir. 2009) ; PETA, Et hical Treat m ent of Anim als v. Rasm ussen, 298 F.3d 1198, 1201- 03 ( 10t h Cir. 2002) ( St anding for com pensat ory dam ages result ing from officers direct ly t hreat ening t he plaint iff prot est ors at t he scene wit h arrest if t hey did not cease, and t he prot est ors left ) . “ A plaint iff seeking ret rospect ive relief, on t he ot her hand, sat isfies t he ‘inj ury in fact ’ requirem ent if she suffered a past inj ury t hat is concret e and part icularized.” Tandy v. Wichit a, 380 F.3d 1277, 1284 ( 10t h Cir. 2004) ( cit ing Adarand Const ruct ors, I nc. v. Pena, 515 U.S 200, 210- 11 ( 1995) ) ( St anding for com pensat ory dam ages result ing from t he act ual past invasion of st at ut ory right s in having been denied access t o public t ransport at ion) . Eric’s burden ent ails “ t hree showings: t hat . . . [ he] suffered an inj ury in fact which is concret e and part icularized, and act ual or im m inent ; second, t hat t here is a causal connect ion bet ween t he inj ury and t he challenged conduct ; and t hird, t hat t he inj ury is likely t o be redressed by a 8 favorable decision.” Dias v. Cit y and Count y of Denver, 567 F.3d at 1176 ( cit at ion om it t ed) ; see Susan B. Ant hony List v. Driehaus, ––– U.S. ––––, 134 S.Ct . 2334, 2341 ( 2014) . The plaint iff's inj ury, m oreover, m ust be “ act ual or im m inent , not conj ect ural or hypot het ical.” Luj an v. Defenders of Wildlife, 504 U.S. 555, 560 ( 1992) ( int ernal quot at ion m arks and cit at ions om it t ed) . “ Since t hey are not m ere pleading requirem ent s but rat her an indispensable part of t he plaint iff’s case, each elem ent m ust be support ed in t he sam e way as any ot her m at t er on which t he plaint iff bears t he burden of proof, i.e., wit h t he m anner and degree of evidence required at t he successive st ages of t he lit igat ion.” Luj an, 504 U.S. at 561 ( cit at ions om it t ed) . Thus, on a sum m ary j udgm ent m ot ion, t he plaint iff “ m ust set fort h by affidavit or ot her evidence specific fact s, . . ., which for purposes of t he sum m ary j udgm ent m ot ion will be t aken t o be t rue.” I d. As t his court has recent ly said, “ ’[ f] ederal court s scrupulously guard t he boundaries of t heir j urisdict ion; t hey are dut y- bound not t o perm it a st anding det erm inat ion t o rest on speculat ion or conj ect ure.’” Clark v. Lynch, - - - F. Supp. 3d- - - , 2016 WL 5466389 at * 3 ( D. Kan. Sep. 29, 2016) ( quot ing New Mexico Off– Highway Vehicle Alliance v. U.S. Forest Service, 645 Fed. Appx. 795, 804 ( 10t h Cir. 2016) ) . St anding is analyzed from t he fact s exist ing when t he com plaint is filed. Tandy v. Wichit a, 380 F.3d at 1284. Based on t he ordinance’s repeal, t he Cit y cont ends t hat Eric cannot show any exist ing credible t hreat of prosecut ion for purposes of pre- 9 enforcem ent challenge and cannot show an inj ury in fact . I ndeed, t he repeal of a challenged law generally m oot s a const it ut ional challenge and claim for declarat ory or inj unct ive relief. See, e.g., Markadonat os v. Village of Woodridge, 760 F.3d 545, 546 ( 7t h Cir. 2014) ; Coalit ion for Abolit ion of Mar. v. Cit y of At lant a, 219 F.3d 1301, 1310 ( 11t h Cir. 2000) . The Cit y sum m arily denies t hat Eric sust ained an inj ury in fact because t he ordinance was never enforced against him . Eric, however, claim s t hat he act ually experienced “ a credible im m inent t hreat ” of arrest during t he relevant period and t hat t his rest rained him from exercising his Second Am endm ent right . ( Dk. 87, p. 28) . Eric’s writ t en argum ent s work at blurring t he legal concept s involved: While “ credible im m inent t hreat ” is oft en t ied t o fu t u r e ( prospect ive) relief claim s, in t he present case it is t ied t o a pa st inj ury because wit hout physical rest raint , a credible im m inent t hreat had t o exist at t he t im e of t he inj ury. That credible im m inent t hreat was a t hreat of physical rest raint init iat ed because of exercising a fundam ent al right and is support ed by cont em poraneous physical rest raint of Plaint iff Jonat han Clark. I n ot her words, “ credible im m inent t hreat ” does not represent a fut ure possibilit y but a past act ualit y. Ment ion of prior rest raint as it applies t o past inj uries can undoubt edly be less t han clear, but “ past act ualit y” is t he int ended m eaning for plaint iff’s st at em ent s, such as, “ erect ing a t hreat of arrest [ i.e., prior rest raint ] for bot h Plaint iffs” ( See Doc. # 1 at ¶ 36) and; such m ent ions should be int erpret ed as ret rospect ive claim s only, t hat is, as act ing as a prior rest raint at specific t im e( s) in t he pa st ( i.e. bet ween Dec. 2, 2013 and August 24, 2014) . A prior rest raint is analogous in m any ways t o a seizure under t he Fourt h Am endm ent in t hat it occurs w hen governm ent act ors have, “ by m eans of physical force or show of a u t h or it y, . . . in som e way rest rained t he libert y of a cit izen,” . . . except excluding t he m eans of physical force and t he libert y not necessarily being freedom of m ovem ent but freedom t o exercise any fundam ent al right . 10 ( Dk. 87, pp. 28- 29) . I n sum , t he court underst ands Eric t o base his st anding on having experienced what he alleges t o be a credible im m inent t hreat creat ed by a com binat ion of circum st ances. First , t he Cit y had t he aut horit y t o enforce t his Ordinance against anyone t raveling wit hin it s Cit y lim it s. Second, Eric occasionally t raveled in t he Cit y of Shawnee. Finally, upon learning of t he firearm charges against his nephew, Eric felt rest rained from exercising his Second Am endm ent right s t o carry a loaded and non- encased firearm in his vehicle. Despit e m ult iple pending disposit ive m ot ions, t he Cit y has avoided addressing t his specific st anding argum ent by Eric. Nevert heless, because st anding “ requires federal court s t o sat isfy t hem selves t hat t he plaint iff has alleged such a personal st ake in t he out com e of t he cont roversy as t o warrant invocat ion of federal- court j urisdict ion,” Sum m ers, 555 U.S. at 492–93, t he court will address t his issue. Ot her t han learning about t he ordinance from his nephew’s charges, Eric grounds his st anding and seeks dam ages on having experienced t he sam e general enforcem ent t hreat t hat faced anyone in t he Cit y of Shawnee t ransport ing a firearm in a vehicle. Besides not com ing forward w it h any legal aut horit y t hat recognizes st anding/ dam ages on t he basis of t his general t hreat alone, Eric does not have t he fact s t o support a sufficient im m inent t hreat here. On t he inj ury- in- fact requirem ent in a preenforcem ent set t ing, t he Suprem e Court has said t here m ust be, 11 “ circum st ances t hat render t he t hreat ened enforcem ent sufficient ly im m inent ,” and t he plaint iff m ust dem onst rat e, ( 1) “ an int ent ion t o engage in a course of conduct arguably affect ed wit h a const it ut ional int erest , but proscribed by [ t he challenged] st at ut e,” and ( 2) “ t here exist s a credible t hreat of prosecut ion t hereunder.” Susan B. Ant hony List , 134 S.Ct . at 2342 ( quot ing Babbit t v. Unit ed Farm Workers Nat 'l Union, 442 U.S. 289, 298 ( 1979) ) . A credible t hreat of prosecut ion cannot rest on fears t hat are “ ‘im aginary or speculat ive.’” Unit ed Farm Workers, 442 U.S. at 298 ( int ernal quot at ion m arks and cit at ion om it t ed) . On t he ot her hand, “ an act ual arrest , prosecut ion, or ot her enforcem ent act ion is not a prerequisit e t o challenging” a law on const it ut ional grounds. Susan B. Ant hony List , 134 S.Ct . at 2342. On t hose occasions when he did t ravel in t he Cit y of Shawnee wit hout t ransport ing a firearm in violat ion of t he ordinance, Eric’s only burden was his com pliance wit h t he ordinance. “ [ P] laint iffs can’t sat isfy t he credible- t hreat - of- prosecut ion t est by relying on evidence of t heir com pliance wit h t he challenged st at ut e.” Colorado Out fit t ers Ass’n v. Hickenlooper, 823 F.3d 537, 548 ( 10t h Cir. 2016) ( cit ing Susan B. Ant hony List , 134 S.Ct . at 2342) . Eric does not point t o any cognizable inj ury or cost s associat ed wit h having t raveled on t hese occasions in com pliance wit h t he ordinance. As for t he t wo t im es when he did t ravel wit h a firearm in violat ion of t he ordinance, Eric has not com e forward wit h specific fact s 12 showing a genuine issue for t rial t hat he faced a credible t hreat of t his ordinance being enforced against him . The fact s are uncont rovert ed t hat Eric was never st opped, t hreat ened wit h arrest , arrest ed, charged or prosecut ed under t he ordinance. There is not hing about t he circum st ances of Eric’s occasional t ravels in t he Cit y t hat m akes enforcem ent of t his ordinance against him a credible im m inent t hreat . Eric’s alleged inj uries are m erely conj ect ural and hypot het ical and will not sat isfy t he inj ury- in- fact requirem ent . See Clapper v. Am nest y I nt ern. USA, - - - U.S.- - - , 133 S.Ct . 1138, 1147 ( 2013) ( “ Alt hough im m inence is concededly a som ewhat elast ic concept , it cannot be st ret ched beyond it s purpose, which is t o ensure t hat t he alleged inj ury is not t oo speculat ive for Art icle I I I purposes—t hat t he inj ury is cert ainly im pending.” ( int ernal quot at ion m arks and cit at ion om it t ed) ; Hickenlooper, 823 F.3d at 554 ( “ ’persons having no fears of st at e prosecut ion except t hose t hat are im aginary or speculat ive, are not be accept ed as appropriat e plaint iffs’” ) ( quot ing Babbit t , 442 U.S. at 298) . The plaint iff Eric's alleged fear and anxiet y here over t he ordinance’s possible enforcem ent against him when he visit ed t he Cit y are t oo speculat ive t o sat isfy t he inj ury- in- fact prong of t he st anding requirem ent . There is not hing about Eric’s t ravels in t he Cit y or about his com m unicat ions wit h t he Cit y t hat would suggest he ever received a warning or t hreat or ever faced a credible t hreat of arrest or prosecut ion. This is not a First Am endm ent case in which st anding m ay arise from forced self- censorship. For t hat m at t er, 13 Eric cannot m eet t he high hurdles for bringing a facial challenge. See Dias v. Cit y and Count y of Denver, 567 F.3d at 1179- 80. This is not a case t hat warrant s relaxing t he st anding requirem ent s in order t o facilit at e a const it ut ional challenge t hat would not ot herwise be m ade. The plaint iff Jonat han rem ains in t he case and has st anding as he was arrest ed, charged and prosecut ed under t he challenged ordinance. I n sum , t he court finds t hat as a m at t er of law t he plaint iff Eric cannot sat isfy t he inj ury- in- fact requirem ent for st anding on His Second Am endm ent claim for com pensat ory dam ages. On t his issue, t he plaint iffs’ m ot ions for sum m ary j udgm ent are denied, and t he defendant ’s m ot ion is grant ed. COUN TS 2 - 4 These t hree count s t urn on t he const it ut ionalit y of t he Cit y’s firearm Ordinance. Count t wo claim s Jonat han’s Second Am endm ent right s were violat ed by t he Ordinance. Count t hree claim s t he Cit y’s enforcem ent of t he unconst it ut ional Ordinance result ed in a prolonged det ent ion t hat violat ed Jonat han’s Fourt h Am endm ent right . Sim ilarly, count four claim s t he Cit y’s enforcem ent of t he unconst it ut ional Ordinance result ed in an unreasonable search t hat violat ed Jonat han’s Fourt h Am endm ent right . All of t hese claim s t urn on t he const it ut ionalit y of t he Cit y’s Ordinance. Jonat han alleges t he Ordinance is unconst it ut ional and eit her direct ly violat es his right under t he Second Am endm ent or eviscerat es t he Cit y’s j ust ificat ion for det aining and searching him in violat ion of his Fourt h Am endm ent right s. 14 PRE- EMPTI ON Jonat han first cont ends t hat his Fourt h Am endm ent right s were violat ed in t hat t he Ordinance was unenforceable, t hat is, null and void, because st at e law had pre- em pt ed it prior t o Decem ber 2, 2013. Jonat han has no viable aut horit y for his argum ent . The governing Kansas st at ut e in 2013, K.S.A. § 12- 16,124, prohibit ed a cit y or count y from adopt ing an ordinance governing t he t ransfer of firearm s except t hat a cit y or count y was not prohibit ed: from adopt ing an ordinance, resolut ion or regulat ion requiring a firearm t ransport ed in any air, land or wat er vehicle t o be unloaded and encased in a cont ainer which com plet ely encloses t he firearm or any less rest rict ive provision governing t he t ransport ing of firearm s, provided such ordinance, resolut ion or regulat ion shall not apply t o persons licensed or recognized under t he personal and fam ily prot ect ion act . K.S.A. 12- 16,124 ( 2013) . I f a st at e st at ut e cont ains express except ions, a cit y m ay also regulat e wit hin t he subj ect area as long as t he cit y's ordinance does not conflict wit h t he st at e law. Johnson Count y Wat er Dist . No. 1 v. Cit y Council of Kansas Cit y, 255 Kan. 183, 194, 871 P.2d 1256 ( 1994) . The Cit y’s Ordinance in quest ion here m at ches t he express except ion allowed in st at e law by m aking it a crim e t o “ t ransport [ . . .] a firearm in any air , land, or wat er vehicle, unless t he Firearm is unloaded and encased in a cont ainer which com plet ely encloses t he firearm .” Cit y of Shawnee, Ordinance No. 3003, § 9.13.040( A) ( 4) , ( Dk. 87- 1, p. 10) . Paragraph B exem pt s a person who is in possession of a current and valid license under t he Kansas Personal 15 and Fam ily Prot ect ion Act . I d. The court finds no conflict bet ween t he Ordinance and t he st at e law, because it does not aut horize som et hing t hat t he st at ut e forbids and it does not forbid som et hing t hat t he st at ut e aut horizes. The plaint iff’s cursory reading of t he Kansas At t orney General Opinions does not support any finding of a conflict . I n fact , t he cit ed Opinion No. 2011- 024 subm it t ed by t he plaint iff act ually support s t he conclusion of no preem pt ion. ( Dk. 118- 1, pp. 63- 64) . The defendant is ent it led t o sum m ary j udgm ent on t his claim . Equal Prot ect ion and Due Process The plaint iff here is arguing t he Ordinance im pact s a fundam ent al right t o self- defense, nam ely, his “ ’im m ediat e’ access t o ‘loaded’ firearm s.” ( Dk. 87, p. 39) . The plaint iff’s prem ise is t hat his const it ut ional right t o self- defense includes having im m ediat e access t o an uncased and loaded firearm while t raveling in a vehicle. The court will address t his part of t he plaint iff’s argum ent in it s lat er discussion of t he Second Am endm ent and, in part icular, t he Suprem e Court ’s st at em ent s in Dist rict of Colum bia v. Heller, 554 U.S. 570, 626 ( 2008) , t hat “ t he right secured by t he Second Am endm ent is not unlim it ed” and is “ not a right t o keep and carry any weapon what soever in any m anner what soever and for what ever purpose.” For now, t he court briefly addresses t he plaint iff’s unusual argum ent s t hat t he Ordinance violat es t he equal prot ect ion clause in exem pt ing persons who have an opt ional license and violat es t he due 16 process clause in requiring licenses from t hose who already have experience and t raining wit h firearm s. The Ordinance at issue creat es t he offense of “ Crim inal Possession of a Firearm ” as defined in five separat e paragraphs. ( Dk. 87- 1, pp. 9- 10) . As relevant here, paragraph four list s as an offense t he “ [ t ] ransport ing a Firearm in any air, land, or wat er vehicle, unless t he Firearm is unloaded and encased in a cont ainer which com plet ely encloses t he Firearm .” I d. For t he offenses in paragraphs four and five, t he Ordinance recognizes nine separat e paragraphs of exem pt ions for law enforcem ent officers, for people on t heir land or in t heir dwelling, for various public and privat e officers engaged in public safet y act ivit ies, and for “ [ p] ersons . . .in possession of a current and valid License” as defined by t he Kansas Personal and Fam ily Prot ect ion Act ( “ KPFPA” ) . I d. The plaint iff argues t he KPFPA license exem pt ion t o t he Ordinance result s in an unconst it ut ional different iat ion involving t wo discret e set s: first , non- resident t ravelers who are denied t he opport unit y for a KPFPA license, and second, Kansas resident s who are t rained and experienced in handling firearm s but who choose not t o have a KPFPA license. Under t he heading of due process, t he plaint iff argues t he Ordinance is in violat ion for requiring licenses from persons who already have experience wit h firearm s. He curiously argues t hat a license applicant 17 would be forced t o com m it perj ury if he com plied wit h t he requirem ent of saying t hat he “ desired” a license when he act ually did not “ desire” a license. The dist inct ion bet ween t hese claim s is im port ant : The Equal Prot ect ion and Due Process clauses prot ect dist inct ly different int erest s. On t he one hand, t he “ subst ant ive com ponent ” of t he Due Process Clause “ provides height ened prot ect ion against governm ent int erference wit h cert ain fundam ent al right s and libert y int erest s,” Washingt on v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct . 2258, 138 L.Ed.2d 772 ( 1997) , even when t he challenged regulat ion affect s all persons equally. I n cont rast , “ t he essence of t he equal prot ect ion requirem ent is t hat t he st at e t reat all t hose sim ilarly sit uat ed sim ilarly,” Bart ell v. Aurora Pub. Schs., 263 F.3d 1143, 1149 ( 10t h Cir.2001) ( quot at ions om it t ed) , wit h it s “ cent ral purpose [ being] t he prevent ion of official conduct discrim inat ing on t he basis of race [ or ot her suspect classificat ions,] ” Washingt on v. Davis, 426 U.S. 229, 239, 96 S.Ct . 2040, 48 L.Ed.2d 597 ( 1976) . As such, equal prot ect ion only applies when t he st at e t reat s t wo groups, or individuals, different ly. Powers v. Harris, 379 F.3d 1208, 1215 ( 10t h Cir. 2004) , cert . denied, 544 U.S. 920 ( 2005) . First , as he is a resident of Kansas, t he plaint iff has not alleged st anding t o bring an equal prot ect ion claim alleging t he right s of non- resident s. I f t his is int ended t o be a facial challenge, t hen t he court ’s lat er ruling against all facial challenges also will apply here. Second, t he plaint iff has not com e forward wit h a viable equal prot ect ion claim based on t he licensing exem pt ion. The plaint iff does not show t hat t he licensing exem pt ion t reat s sim ilarly sit uat ed people different ly. The plaint iff does not assert t hat he was precluded from obt aining a KPFPA license. The plaint iff purport s t o argue t hat people who have t raining and experience wit h firearm s are sim ilarly sit uat ed t o t hose who have KPFPA licenses. The 18 plaint iff explains, “ t he m inim al t raining and experience required by t he KPFPA conceal carry License applicat ion process pales in com parison t o m any who have been in t he m ilit ary, hunt ed all t heir life, et c.” ( Dk. 87, p. 44) . The plaint iff proposes a less rest rict ive policy which would allow for persons having alt ernat ive t raining or experience t o prove t he sam e wit h docum ent at ion and receive a sim ilar exem pt ion. “ The Equal Prot ect ion Clause ‘keeps governm ent al decision m akers from t reat ing different ly persons who are in all relevant respect s alike.” Soskin v. Reinert son, 353 F.3d 1242, 1247 ( 10t h Cir. 2004) ( int ernal quot at ion m arks and cit at ion om it t ed) . The plaint iff cannot show t hat persons having t raining and experience wit h firearm s are in all relevant respect s sim ilarly sit uat ed t o t hose who have KPFPA licenses. Besides t he com plet ion of a safet y and t raining course, t he licensing requirem ent s also addressed qualificat ions relat ed t o residency, federal or st at e prohibit ions on firearm handling, age, crim inal hist ory, and m ent al healt h findings. K.S.A. 75- 7c04, 75- 7c05. The license applicat ion also required “ a st at em ent t hat t he applicant desires a concealed handgun license as a m eans of law ful selfdefense.” K.S.A. 75- 7c05( a) ( 5) ( 2011) . By being licensed, a person becom es part of a st at e dat abase. K.S.A. 75- 7c06( d) . All of t hese circum st ances cert ainly est ablish t hat a person wit h firearm t raining and experience is n ot for all relevant purposes sim ilarly sit uat ed t o a person having a KPFPA license. I ndeed, t he license exem pt ion m at ches up wit h t he Suprem e Court ’s 19 holding in Heller t hat it was not “ cast [ ing] doubt on longst anding prohibit ions on t he possession of firearm s by felons and t he m ent ally ill.” 554 U.S. at 626. I t also m at ches up wit h t he rem edy in Heller, “ [ a] ssum ing t hat Heller is not disqualified from t he exercise of Second Am endm ent right s, t he Dist rict m ust perm it him t o regist er his handgun and m ust issue him a license t o carry it in t he hom e.” 554 U.S. at 635. I n short , t he plaint iff has not alleged and shown discrim inat ory t reat m ent of persons sim ilarly sit uat ed by t he Ordinance’s exem pt ion for persons having a KPFPA license. For his due process claim , t he plaint iff’s argum ent s are equally lacking in m erit . He com plains about t he Second Am endm ent right being burdened by having t o go t hrough t he licensing process and disclosing personal inform at ion part icularly when a person already has firearm t raining and experience. As discussed earlier, t he court finds t hat t he Ordinance’s exem pt ion for licensed persons has a broader purpose t han insuring experience wit h firearm s. See Pet erson v. LaCabe, 783 F. Supp. 2d 1167, 1174- 75 ( D. Colo. 2011) ( “ Colorado has a subst ant ial int erest in rest rict ing perm it s t o t hose persons whose inform at ion [ from background checks and ongoing m onit oring t hat is relevant t o a disqualifying fact or] is m ore readily available; m oreover, t he rest rict ion is t ailored t o t hat need.” ) , aff’d on ot her grounds, 707 F.3d 1197 ( 10t h Cir. 2013) . Consist ent wit h Heller, t hese ot her purposes are undeniably valid and const it ut ional reasons for licensing and j ust ify t he licensing process and disclosures required under it . Moreover, t he 20 court const rues t he plaint iff’s argum ent as no m ore t han an indirect and duplicat ive Second Am endm ent challenge. The court rej ect s t his claim an effort t o raise a duplicat ive claim under subst ant ive due process grounds. See Count y of Sacram ent o v. Lewis, 523 U.S. 833, 843 ( 1998) ( quot ing Unit ed St at es v. Lanier, 520 U.S. 259, 272 n.7 ( 1997) ( “ [ I ] f a const it ut ional claim is covered by a specific const it ut ional provision, such as t he Fourt h or Eight h Am endm ent , t he claim m ust be analyzed under t he st andard appropriat e t o t hat specific provision, not under t he rubric of subst ant ive due process.” ) . The court finds no valid argum ent s here for a due process claim . Facial Challenge The plaint iff next m akes a facial challenge t o t he st at ut e and opines t hat , “ [ t ] here is no significant difference bet ween a facial challenge and an as- applied challenge except for t he num ber of people ( or set s of people) considered in t he challenge and t he pot ent ial out com e.” ( Dk. 87, p. 46) . The plaint iff t hen challenges t he Ordinance as unconst it ut ional in rest rict ing t he Second Am endm ent right s of t hose non- exem pt persons “ who are m em bers of t he people’s m ilit ia and engaged in m ilit ia dut ies or act ivit ies” or who are law- abiding resident s t ransport ing a loaded firearm “ for t he purpose of im m ediat e self defense.” ( Dk. 87, pp. 47- 48) . The plaint iff cont rast s t he Ordinance wit h Florida law which im poses licensing requirem ent s but exem pt s law enforcem ent which are defined as t o include st at e m ilit ia. Wit hout t his exem pt ion, t he plaint iff insist s t he Ordinance is 21 unconst it ut ional and null and void. As for law- abiding resident s, t he plaint iff argues t he Ordinance keeps t hem from having t he im m ediat e defense of a loaded firearm while at hom e because “ it is physically im possible t o unload and encase a firearm t he very inst ant one m oves from one’s hom e and ont o t he public road.” ( Dk. 87, p. 54) . None of t hese argum ent s m akes out a viable facial challenge t o t he Ordinance. “ Facial challenges are st rong m edicine.” Ward v. Ut ah, 398 F.3d 1239, 1246 ( 10t h Cir. 2005) . Consequent ly, t hey “ ’are disfavored,’ . . . , and generally fail if any ‘set of circum st ances exist s under which t he [ law] would be valid.’” Pet erson v. LaCabe, 783 F. Supp. 3d at 1173 ( quot ing Washingt on St at e Grange v. Washingt on St at e Republican Part y, 552 U.S. 442, 449- 450 ( 2008) ) . “ Facial overbreadt h challenges are disfavored and perm it t ed ‘in relat ively few set t ings, and, generally, on t he st rengt h of specific reasons weight y enough t o overcom e [ court s'] well- founded ret icence.’ Unit ed St at es v. Decast ro, 682 F.3d 160, 169 ( 2d Cir. 2012) ( quot ing Sabri v. Unit ed St at es, 541 U.S. 600, 609–10 ( 2004) ) , cert . denied, 133 S. Ct . 838 ( 2013) . The plaint iff’s facial challenges fail t o m eet t he above t hresholds. He has not shown t hat t he Ordinance lacks any “ plainly legit im at e sweep” in prohibit ing t he t ransport at ion of loaded or non- encased firearm s subj ect t o t he st at ed exem pt ions. Hight ower v. Cit y of Bost on, 693 F.3d 61, 77- 78 ( 1st Cir. 2012) . The plaint iff does not even at t em pt t o show t he Ordinance t o be lacking any lawful applicat ion. I nst ead, t he plaint iff want s t o show t he 22 st at ut e is overbroad in not exem pt ing m ilit ia and in im plicat ing hom e possession. As j udged by relat ed cit y ordinances set t ing fort h t he definit ion of a law enforcem ent officer, § 9.13.004 ( Dk. 87- 1, p. 5) ( “ any person who by virt ue of office . . . is vest ed by law wit h a dut y t o m aint ain public order” ) , and by t he exem pt ion for “ persons found on t heir land, in t heir dwelling, or fixed place of business,” § 9.13.040( B) ( 2) , t he plaint iff has not necessarily shown t he Ordinance t o be overbroad. Even if he had, t he court would follow t he Fourt h Circuit ’s approach and rej ect a facial challenge here: Wit hout ent ert aining t he novel not ion t hat an overbreat h challenge could be recognized “ out side t he lim it ed cont ext of t he First Am endm ent ,” Salerno, 481 U.S. at 745, 107 S.Ct . 2095, we conclude t hat a person, such as Masciandaro, t o whom a st at ut e was const it ut ionally applied, “ will not be heard t o challenge t hat st at ut e on t he ground t hat it m ay conceivably be applied unconst it ut ionally t o ot hers, in ot her sit uat ions not before t he Court .” Broadrick v. Oklahom a, 413 U.S. 601, 610, 93 S.Ct . 2908, 37 L.Ed.2d 830 ( 1973) . This conclusion “ reflect [ s] t he convict ion t hat under our const it ut ional syst em court s are not roving com m issions assigned t o pass j udgm ent on t he validit y of t he Nat ion's laws.” I d. at 610–11, 93 S.Ct . 2908; see also Gonzales v. Carhart , 550 U.S. 124, 167–68, 127 S.Ct . 1610, 167 L.Ed.2d 480 ( 2007) ( “ I t is neit her our obligat ion nor wit hin our t radit ional inst it ut ional role t o resolve quest ions of const it ut ionalit y wit h respect t o each pot ent ial sit uat ion t hat m ight develop.... For t his reason, ‘[ a] s- applied challenges are t he basic building blocks of const it ut ional adj udicat ion’ ” ( quot ing Richard H. Fallon, Jr., As– Applied and Facial Challenges and Third–Part y St anding, 113 Harv. L. Rev. 1321, 1328 ( 2000) ) ) ; Skoien, 614 F.3d at 645 ( “ [ a] person t o whom a st at ut e properly applies [ cannot ] obt ain relief based on argum ent s t hat a different ly sit uat ed person m ight present ” ) . Accordingly, we rej ect his facial challenge. Unit ed St at es v. Masciandaro, 638 F.3d 458, 474 ( 4t h Cir.) , cert . denied, 132 S. Ct . 756 ( 2011) ; Unit ed St at es v. Chest er, 514 Fed. Appx. 393, 395, 2013 WL 1189253, p. * 2 ( 4t h Cir. Mar. 25, 2013) ( “ [ N] o circuit has accept ed 23 an overbreadt h challenge in t he Second Am endm ent cont ext .” ) . As shown lat er, t he court will conclude t hat t he Ordinance had been applied properly and const it ut ionally t o t he plaint iff. Thus, t he court rej ect s t he plaint iff’s facial challenges as argued in all aspect s. Second Am endm ent I n it s prior order, t he court has sum m arized t he relevant law governing t he plaint iff’s claim s of unconst it ut ionalit y under t he Second Am endm ent . The part ies’ briefing on t his issue has not shown any error in t he court ’s sum m ary of law and it s approach. For ease of reference, t he court will quot e ext ensively from it s prior order: I n Dist rict of Colum bia v. Heller, 554 U.S. 570 ( 2008) , t he Suprem e Court recognized an individual Second Am endm ent right t o keep and bear arm s and cent ral t o it , “ t he inherent right of selfdefense,” and concluded t his right was violat ed by a st at ut e t hat effect ively banned all handgun possession in t he hom e and required any lawful firearm t o be rendered inoperable by disassem bly or t rigger lock: The handgun ban am ount s t o a prohibit ion of an ent ire class of “ arm s” t hat is overwhelm ingly chosen by Am erican societ y for t hat lawful purpose. The prohibit ion ext ends, m oreover t o t he hom e, where t he need for defense of self, fam ily, and propert y is m ost acut e. Under any of t he st andards of scrut iny t hat we have applied t o enum erat ed const it ut ional right s, banning from t he hom e “ t he m ost preferred firearm in t he nat ion t o ‘keep’ and use for prot ect ion of one’s hom e and fam ily,” . . ., would fail const it ut ional m ust er. 554 U.S. at 628 ( cit at ion om it t ed) . I n addressing t he st at ut e t hat required weapons t o be rendered inoperable, t he Court added, “ This m akes it im possible for cit izens t o use t hem for t he core lawful purpose of self- defense and is hence unconst it ut ional.” 554 U.S. at 630. The Court did not address t he licensing requirem ent and ordered, “ Assum ing t hat Heller is not disqualified from t he exercise of Second Am endm ent right s, t he Dist rict m ust perm it him t o regist er his 24 handgun and m ust issue him a license t o carry it in t he hom e.” 554 U.S. at 635. I n McDonald v. Cit y of Chicago, I ll., 130 S.Ct . 3020, 177 L.Ed.2d 894 ( 2010) , t he Court found t he Fourt eent h Am endm ent m ade t he Second Am endm ent right t o keep and bear arm s fully applicable t o t he St at es and st ruck down t wo I llinois cit ies’ ordinances t hat effect ively banned handgun possession by alm ost all privat e cit izens. One of t he cit ies had ordinances t hat required valid regist rat ion cert ificat es for any firearm possessed and t hat “ prohibit [ ed] regist rat ion of m ost handguns, t hus effect ively banning handgun possession by alm ost all privat e cit izens who reside in t he Cit y.” 177 L.Ed.2d at 904. The Tent h Circuit has agreed wit h ot her circuit s t hat Heller follows a “ t wo- pronged approach t o Second Am endm ent challenges” t hat ent ails: Heller t hus “ suggest s a t wo- pronged approach t o Second Am endm ent challenges” t o federal st at ut es. Unit ed St at es v. Marzzarella, 614 F.3d 85, 89 ( 3d Cir. 2010) ; see Unit ed St at es v. Skoien, 614 F.3d 638, 641- 42 ( 7t h Cir. 2010) ( en banc) . Under t his approach, a reviewing court first “ ask[ s] whet her t he challenged law im poses a burden on conduct falling wit hin t he scope of t he Second Am endm ent 's guarant ee.” Marzzarella, 614 F.3d at 89. “ I f it does not , [ t he court 's] inquiry is com plet e.” I d. “ I f it does, [ t he court ] m ust evaluat e t he law under som e form of m eans- end scrut iny.” I d. “ I f t he law passes m ust er under t hat st andard, it is const it ut ional.” I d. “ I f it fails, it is invalid.” I d. Unit ed St at es v. Reese, 627 F.3d 792, 800- 01 ( 10t h Cir. 2010) . I n Reese, t he circuit panel concluded t he federal law prohibit ing possession of a firearm while subj ect t o a dom est ic prot ect ion order im posed a burden on t he challenger’s right t o possess ot herwise legal firearm s. The answer t o t he first st ep dem ands “ an ‘hist orical inquiry’ int o ‘whet her t he conduct at issue was underst ood t o be wit hin t he scope of t he right at t he t im e of rat ificat ion.’” Kolbe v. Hogan, 813 F.3d 160, 172 ( 4t h Cir. 2016) ( quot ing Unit ed St at es v. Chest er, 628 F.3d 673, 680 ( 4t h Cir. 2010) and cit ing Heller, 554 U.S. at 626- 27) , rehearing en banc grant ed, 2016 WL 8511670 ( Mar. 4, 2016) . Thus, “ ’if t he challenged regulat ion burdens conduct t hat was wit hin t he scope of t he Second Am endm ent as hist orically underst ood, t hen we m ove t o t he second st ep of applying an appropriat e form of m eansend scrut iny.’” I d. The Court in Heller affirm at ively est ablishes t he “ guarant ee,” pre- exist ing t he Second Am endm ent , of “ t he individual right t o possess and carry weapons in case of confront at ion.” 554 U.S. at 592. The purpose for t his right was not j ust t o preserve t he m ilit ia 25 but ext ended t o “ self- defense and hunt ing.” 554 U.S. at 599. While Heller discussed t he purpose of self- defense wit hin t he hom e, t he Tent h Circuit recent ly acknowledged t hat , “ [ t ] he need for self- defense, albeit less acut e, cert ainly exist s out side t he hom e as well. Moore v. Madigan, 702 F.3d 933, 935–40 ( 7t h Cir. 2012) , rehearing en banc denied, 708 F.3d 901 ( 7t h Cir. 2013) . “ The right t o keep and bear arm s as a m at t er of hist ory and t radit ion, ‘is not unlim it ed,’ of course, as even law- abiding cit izens do not have ‘a right t o keep and carry any weapon what soever in any m anner what soever and for w hat ever purpose.’” Kolbe, 813 F.3d at 172 ( quot ing Heller, 554 U.S. at 626) . “ Accordingly, if t he governm ent can est ablish t hat a challenged firearm s law regulat es act ivit y falling out side t he scope of t he Second Am endm ent right as it was underst ood at t he relevant hist orical m om ent —1791 or 1868—t hen t he analysis can st op t here; t he regulat ed act ivit y is cat egorically unprot ect ed, and t he law is not subj ect t o furt her Second Am endm ent review.” Ezell v. Cit y of Chicago, 651 F.3d 684, 702- 703 ( 7t h Cir. 2011) . Com m on sense is apparent in t he Sevent h Circuit ’s lat est com m ent on t his t opic: Heller does not purport t o define t he full scope of t he Second Am endm ent . The Court has not t old us what ot her ent it lem ent s t he Second Am endm ent creat es or what kinds of gun regulat ions legislat ures m ay enact . I nst ead t he Court has alert ed ot her j udges, in Heller and again in McDonald, t hat t he Second Am endm ent “ does not im peril every law regulat ing firearm s.” McDonald, 561 U.S. at 786, 130 S.Ct . 3020 ( pluralit y opinion) ; Heller, 554 U.S. at 626–27 & n. 26, 128 S.Ct . 2783. Caut ionary language about what has been left open should not be read as if it were part of t he Const it ut ion or answered all possible quest ions. I t is enough t o say, as we did in [ Unit ed St at es v.] Skoien, 614 F.3d [ 638] at 641 [ ( 7t h Cir. 2010) ( en banc) ] , t hat at least som e cat egorical lim it s on t he kinds of weapons t hat can be possessed are proper, and t hat t hey need not m irror rest rict ions t hat were on t he books in 1791. Friedm an v. Cit y of Highland Park, I llinois, 784 F.3d 406, 410 ( 7t h Cir. 2015) cert . denied sub nom ., Friedm an v. Cit y of Highland Park, I ll., 136 S. Ct . 447 ( 2015) . The plaint iffs fram e t he right prot ect ed by t he Second Am endm ent and im plicat ed by t he ordinance as t he general public’s right t o t ransport in a vehicle a firearm t hat is eit her loaded or not encased. Reading § 9.13.040 in it s full cont ext suggest s a different fram ing of t his right . This ordinance act ually exem pt ed from t he t ransport at ion rest rict ion any person who was “ in possession of a 26 current and valid License” under “ t he Kansas Personal and Fam ily Prot ect ion Act , pursuant t o K.S.A. 75- 7c01 and K.S.A. 75- 7c17, t o encom pass t he ent ire act and all exem pt ions included t herein.” ( Dk. 13- 1, p. 7) . This st at ut ory license would perm it carrying a concealed handgun and would be issued only aft er m eet ing various requirem ent s including, m ost not ably, t he com plet ion of a safet y and t raining course and a crim inal background check. This exem pt ion of t hose licensed for conceal carry w ould cert ainly change t he right im plicat ed here, in t hat a person so licensed was not prohibit ed from t ransport ing in a vehicle a firearm t hat was loaded and t hat was not encased. See, e.g., Horsley v. Tram e, 61 F. Supp. 3d 788, 791- 93 ( S.D. I ll. 2014) , aff’d, 808 F.3d 1126 ( 7t h Cir. 2015) . Neit her side has incorporat ed t his exem pt ion int o t heir Second Am endm ent analysis offered in t his sum m ary j udgm ent proceeding. For purposes of t his m ot ion, t he court is going t o follow t he approach of som e circuit s and sim ply assum e Second Am endm ent applicat ion and m ove t o t he second st ep. The defendant t ook t his posit ion in it s brief. The court believes t his m akes sense here, as t he part ies have not separat ely analyzed t he first st ep and as t he right im plicat ed by t his repealed ordinance has not been fully defined by t he part ies and, t herefore, is subj ect t o som e deliberat ion. See Unit ed St at es v. Hosford, 82 F. Supp. 3d 660, 664- 65 ( D. Md. 2015) . Wit h t hat said, t he court recognizes t hat since Heller and McDonald, t he Tent h Circuit has observed t he “ narrowness” of t he holding in Heller and t he Court ’s recognit ion: “ Not hing in our opinion should be t aken t o cast doubt on longst anding prohibit ions on t he possession of firearm s by felons and t he m ent ally ill, or laws forbidding t he carrying of firearm s in sensit ive places such as schools and governm ent buildings, or laws im posing condit ions and qualificat ions on t he com m ercial side of arm s.” Bonidy v. U.S. Post al Service, 790 F.3d 1121, 1124 ( 10t h Cir. 2015) ( quot ing Heller, 554 U.S. at 626- 27) , cert . denied, 2016 WL 1078949 ( Mar. 21. 2016) . The Tent h Circuit also quot ed t he foot not e at t ached t o t his st at em ent in Heller, “ ’We ident ify t hese presum pt ively lawful regulat ory m easures only as exam ples; our list does not purport t o be exhaust ive.’” I d. at n.1 ( quot ing Heller, 554 U.S. at 627 n. 26) . These sam e assurances were repeat ed by t he Court in McDonald. Bonidy, 790 F.3d at 1124- 25. Thus, t he court in Bonidy concluded, “ t he Second Am endm ent right t o carry firearm s does not apply t o federal buildings and adj acent parking lot s. 790 F.3d at 1125. Assum ing t he right im plicat ed by t he full t ext of t he ordinance does com e wit hin t he Second Am endm ent , t he court will 27 evaluat e t he ordinance using a m eans- end scrut iny. The Tent h Circuit recent ly st at ed, “ I f Second Am endm ent right s apply out side t he hom e, we believe t hey would be m easured by t he t radit ional t est of int erm ediat e scrut iny. See Unit ed St at es v. Reese, 627 F.3d 792, 802 ( 10t h Cir. 2010) ( applying int erm ediat e scrut iny t o a Second Am endm ent as- applied challenged t o § 922( g) ( 8) ) .” Bonidy, 790 F.3d at 1126. The Bonidy panel expressed a rat ionale for t his t est t hat is on all fours wit h t he circum st ances here: I nt erm ediat e scrut iny m akes sense in t he Second Am endm ent cont ext . The right t o carry w eapons in public for self- defense poses inherent risks t o ot hers. Firearm s m ay creat e or exacerbat e accident s or deadly encount ers, as t he longst anding bans on privat e firearm s in airport s and court houses illust rat e. The risk inherent in firearm s and ot her weapons dist inguishes t he Second Am endm ent right from ot her fundam ent al right s t hat have been held t o be evaluat ed under a st rict scrut iny t est , such as t he right t o m arry and t he right t o be free from viewpoint discrim inat ion, which can be exercised wit hout creat ing a direct risk t o ot hers. I nt erm ediat e scrut iny appropriat ely places t he burden on t he governm ent t o j ust ify it s rest rict ions, while also giving governm ent s considerable flexibilit y t o regulat e gun safet y. 790 F.3d at 1126. The Tent h Circuit precedent com pels t his court t o apply t he t radit ional t est of int erm ediat e scrut iny. Thus, “ [ t ] o pass const it ut ional m ust er under int erm ediat e scrut iny, t he governm ent has t he burden of dem onst rat ing t hat it s obj ect ive is an im port ant one and t hat it s obj ect ive is advanced by m eans subst ant ially relat ed t o t hat obj ect ive.” Unit ed St at es v. Reese, 627 F.3d at 802 ( int ernal quot at ion m arks and cit at ion om it t ed) . The court is not convinced from reading t he part ies’ briefs t hat t he defendant will not be able t o carry it s burden at t his st ep as a m at t er of law. I ndeed, t he defendant argues several possible public safet y aim s t hat are im port ant , t hat seem t o be aim s of t he ordinance, and t hat seem t o be advanced by subst ant ially relat ed m eans. Point ing uncased firearm s and/ or using loaded firearm s during t he operat ion of vehicles on public roadways plainly carry safet y risks t hat go beyond t hose com m only associat ed wit h t he firearm it self. Addit ionally, t he defendant describes such conduct as associat ed wit h “ road rage” incident s so t hat prohibit ing t his conduct could prevent escalat ion int o t hese incident s and all t he safet y risks involved wit h t hem . The defendant borrows som e of t he reasoning from Unit ed St at es v. Masciandaro, 638 F.3d at 473- 74, which found no Second Am endm ent violat ion in t he applicat ion of a federal regulat ion t hat prohibit ed 28 carrying or possessing a loaded handgun in a m ot or vehicle wit hin a nat ional park: Loaded firearm s are surely m ore dangerous t han unloaded firearm s, as t hey could fire accident ally or be fired before a pot ent ial vict im has t he opport unit y t o flee. The Secret ary could have reasonably concluded t hat , when concealed wit hin a m ot or vehicle, a loaded weapon becom es even m ore dangerous. I n t his respect , § 2.4( b) is analogous t o t he lit any of st at e concealed carry prohibit ions specifically ident ified as valid in Heller. See 128 S. Ct . at 2816–17. By perm it t ing park pat rons t o carry unloaded firearm s wit hin t heir vehicles, § 2.4( b) leaves largely int act t he right t o “ possess and carry weapons in case of confront at ion.” Heller, 128 S.Ct . at 2797. While it is t rue t hat t he need t o load a firearm im pinges on t he need for arm ed selfdefense, see Volokh, I m plem ent ing t he Right for Self–Defense, 56 U.C.L.A. L. Rev. at 1518–19, int erm ediat e scrut iny does not require t hat a regulat ion be t he least int rusive m eans of achieving t he relevant governm ent obj ect ive, or t hat t here be no burden what soever on t he individual right in quest ion. See Unit ed St at es v. Baker, 45 F.3d 837, 847 ( 4t h Cir. 1995) . Moreover, because t he Unit ed St at es Park Police pat rol Daingerfield I sland, t he Secret ary could conclude t hat t he need for arm ed self- defense is less acut e t here t han in t he cont ext of one's hom e. 638 F.3d at 473- 74. The defendant highlight s t he increased danger of t ransport ing loaded firearm s and t he reduced need for self- defense as t he public roadways are pat rolled by law enforcem ent officers. The defendant also not es t hat t he ordinance does not ut t erly foreclose arm ed self- defense, nor m ust t he ordinance be t he least int rusive m eans of at t aining t he governm ent al obj ect ive. The ordinance perm it s t he possession of an unloaded and encased weapon, and not hing prevent s a person from pulling over a vehicle and t hen uncasing and loading a vehicle for self- defense use out side of t he vehicle. This would serve t he public safet y purpose of prevent ing t he exchange of gunfire bet ween vehicles operat ing on public roadways and all of t he safet y risks associat ed wit h t hese incident s. Thus, t he defendant asks t he court t o find t hat t he ordinance survives int erm ediat e scrut iny and t hat it does not violat e t he plaint iff’s Second Am endm ent right s. Because t he const it ut ionalit y issue had not been properly fram ed for t he court ’s final ruling at t his t im e, because t he part ies have not been afforded a full opport unit y t o brief all of t he m at t ers relat ed t o t his issue, som e of which are not ed above, and because t he 29 part ies now have a legal t em plat e for advancing t heir argum ent s, t he court will wit hhold it s ruling at t his t im e. ( Dk. 26, pp. 10- 19) . On t he first prong, t he defendant cont ends t he Ordinance does not burden conduct falling wit hin t he Second Am endm ent , because “ [ n] eit her t he Suprem e Court nor t he Tent h Circuit has ever acknowledged t hat Second Am endm ent right s exist out side of t he hom e.” ( Dk. 109, p. 11) . The defendant cont rast s t he Ordinance wit h t he rest rict ive laws essent ially banning handguns in t he hom e t hat were st ruck down in Heller. The Ordinance is “ hardly a serious burden” in t hat it allows som eone t o t ransport an unloaded firearm in an unlocked case wit h am m unit ion st ored right next t o t he gun. ( Dk. 109, p. 13) . Even assum ing t his t o be a const it ut ional burden, Ordinance gives one t he opt ion of obt aining a KPFPA conceal carry license so as t o be exem pt from t he burden. Finally, t he defendant proposes recognizing a correspondence bet ween t he t ransport at ion of firearm s in a vehicle and t he carrying of a concealed firearm . The defendant point s t o Heller’s observat ion t hat st at e law prohibit ions against t he carrying of concealed weapons have wit hst ood Second Am endm ent challenges and also point s t o t he Tent h Circuit holding t hat rej ect s a Second Am endm ent right t o carry a concealed weapon. The Tent h Circuit in Pet erson v. Mart inez, 707 F.3d 1197 ( 10t h Cir. 2013) , in const ruing and applying Heller, concluded on t he first prong t hat t he Second Am endm ent did not provide t he right t o carry a concealed 30 weapon. I d. at 1209. The Tent h Circuit explained it s conclusion in t hese t erm s: [ T] he Heller opinion not es t hat , “ [ l] ike m ost right s, t he right secured by t he Second Am endm ent is not unlim it ed. From Blackst one t hrough t he 19t h- cent ury cases, com m ent at ors and court s rout inely explained t hat t he right was not a right t o keep and carry any weapon what soever in any m anner what soever and for w hat ever purpose.” 554 U.S. at 626, 128 S.Ct . 2783. As an exam ple of t he lim it ed nat ure of t he Second Am endm ent right t o keep and carry arm s, t he Court observed t hat “ t he m aj orit y of t he 19t h- cent ury court s t o consider t he quest ion held t hat prohibit ions on carrying concealed weapons were lawful under t he Second Am endm ent or st at e analogues.” I d. And t he Court st ressed t hat “ not hing in our opinion should be t aken t o cast doubt on longst anding prohibit ions.” I d. There can be lit t le doubt t hat bans on t he concealed carrying of firearm s are longst anding. I n Heller, t he Suprem e Court cit ed several early cases in support of t he st at em ent t hat m ost ninet eent h cent ury court s approved of such prohibit ions. . . . . . . Given t his lengt hy hist ory of regulat ion, rest rict ions on concealed carry qualify as “ longst anding” and t hus “ presum pt ively lawful regulat ory m easures.” Heller, 554 U.S. at 626 & n. 26, 128 S.Ct . 2783; see also Nat ional Rifle Associat ion of Am erica, I nc. v. Bureau of Alcohol, Tobacco, Firearm s, & Explosives, 700 F.3d 185, 196 ( 5t h Cir. 2012) ( “ Heller dem onst rat es t hat a regulat ion can be deem ed ‘longst anding’ even if it cannot boast a precise founding- era analogue.... Heller considered firearm possession bans on felons and t he m ent ally ill t o be longst anding, yet t he current versions of t hese bans are of m id–20t h cent ury vint age.” ( cit at ions om it t ed) ) . . . . Given t he dict a in Robert son, 165 U.S. at 281–82, 17 S.Ct . 326, and t he Suprem e Court 's adm onit ion in Heller t hat “ not hing in our opinion should be t aken t o cast doubt on longst anding prohibit ions,” 554 U.S. at 626, 128 S.Ct . 2783, we conclude t hat Pet erson's Second Am endm ent claim fails at st ep one of our t wo- st ep analysis: t he Second Am endm ent does not confer a right t o carry concealed weapons. Pet erson v. Mart inez, 707 F.3d at 1210- 11. The Tent h Circuit lat er in Bonidy held “ t hat t he Second Am endm ent right t o carry firearm s does not apply t o federal buildings, such as post offices,” or t o t he parking lot t hat exclusively 31 served t he federal building and is t herefore “ part of” t he federal building. 790 F.3d at 1125- 26. As t he First Circuit has observed, t he Suprem e Court in Heller and McDonald, “ did not say, and t o dat e has not said, t hat publicly carrying a firearm unconnect ed t o defense of heart h and hom e and unconnect ed t o m ilit ia service is a definit ive right of privat e cit izens prot ect ed under t he Second Am endm ent .” Powell v. Tom pkins, 783 F.3d 332, 348 ( 1st Cir. 2015) ( “ Debat e cont inues am ong court s.” cit at ions om it t ed) , cert . denied, 136 S. Ct . 1448 ( 2016) . Recent ly, a federal dist rict court sum m arized t he st at e of t his debat e wit h t wo circuit s, t he Sevent h and Nint h, “ hav[ ing] expressly recognized a Second Am endm ent right t o bear arm s for self- defense t hat ext ends beyond t he hom e” while t he rem aining circuit s are cont ent wit h assum ing wit hout deciding t hat t his right exist s. Chesney v. Cit y of Jackson, 171 F. Supp. 3d 605, 622 ( E.D. Mich. 2016) . 2 As far as t his debat e, t he Tent h Circuit has t aken it s posit ion of assum ing wit hout deciding bot h in Pet erson when it rej ect ed t he m ore specific Second Am endm ent right t o carry out side of t he hom e a concealed weapon and in Bonidy when it rej ect ed t he right t o carry a firearm in federal buildings. At t he sam e t im e, t he court recognizes t he need for self- defense ext ends beyond t he hom e and im plicat es t he right t o bear arm s for t hat purpose. The Tent h Circuit recognizes t his point , as well, in Bonidy: 2 Since Chesney, t he Nint h Circuit sit t ing en banc changed it s posit ion t o t he “ Second Am endm ent m ay or m ay not prot ect , t o som e degree, a right of a m em ber of t he general public t o carry firearm s in public.” Perut a v. Count y of San Diego, 824 F.3d 919, 927 ( 9t h Cir. 2016) . 32 This alt ernat ive holding assum es t hat t he right t o bear arm s recognized in Heller in t he hom e would also apply, alt hough wit h less force, out side t he hom e. This seem s like a reasonable assum pt ion because t he Second Am endm ent right is “ t o keep and bear” arm s, and “ bear” cert ainly im plies t he possibilit y and even t he likelihood t hat t he arm s will be carried out side t he hom e. Also, t he Second Am endm ent right recognized by t he Suprem e Court is predicat ed on t he right of self- defense. Heller, 554 U.S. at 595, 128 S.Ct . 2783. The need for self- defense, albeit less acut e, cert ainly exist s out side t he hom e as well. Moore v. Madigan, 702 F.3d 933, 935–40 ( 7t h Cir.2012) Bonidy v. U.S. Post al Serv., 790 F.3d at 1125 ( foot not e om it t ed) . There is not hing in t he case law t o dat e t hat would j ust ify depart ing from Tent h Circuit precedent . Thus, t he court will assum e t he Second Am endm ent prot ect s t o som e degree a right t o bear arm s in public. This brings us t o t he m ore specific argum ent on applying t he Tent h Circuit ’s holding in Pet erson t hat t here is no Second Am endm ent right for m em bers of t he public t o carry concealed weapons in public. 707 F.3d at 1211; see Perut a v. Count y of San Diego, 824 F.3d 919, 927 ( 9t h Cir. 2016) . “ I f t he governm ent est ablishes t hat t he challenged law regulat es act ivit y out side t he scope of t he Second Am endm ent as underst ood at t he t im e of t he fram ing of t he Bill of Right s, t he act ivit y is unprot ect ed and t he law is not subj ect t o furt her const it ut ional scrut iny.” Tyler v. Hillsdale Count y Sheriff’s Dept ., 837 F.3d 678, 685- 86 ( 6t h Cir. 2016) . There is no quest ion t hat t he Ordinance here addresses t he public carry of firearm s, as wit h Pet erson. I n t hat cont ext , t he dist inct ion recognized is “ bet ween open carry of a handgun—such as in a visibly exposed belt holst er—and concealed carry—such as hidden from view under clot hing or in a pocket .” Drake v. 33 Filko, 724 F.3d 426, 440 ( 3rd Cir. 2013) , cert . denied, 134 S. Ct . 2134 ( 2014) . The Ordinance does not refer t o t he t ransport at ion offense as a concealed carry regulat ion, but it does recognize t hat som eone wit h a conceal carry license is exem pt from t his offense. Nor does t he Ordinance incorporat e an elem ent or m ake a dist inct ion based on whet her t he t ransport ed firearm is visible or not t o som eone out side of t he vehicle. Nonet heless, t here is no serious quest ion t hat firearm s being t ransport ed in a vehicle are m ost t ypically not visible t o ot hers out side of t he vehicle. Unit ed St at es v. Masciandaro, 648 F. Supp. 2d 779, 790 ( E.D. Va. 2009) ( “ Heller 's approval of concealed weapons bans provides furt her support for rej ect ing Masciandaro's as- applied challenge, as carrying a loaded weapon in a m ot or vehicle—an act which, by definit ion, is alm ost always out side t he view of t hose nearby—present s t he sort of com pelling safet y risk m ore adequat ely resolved by legislat ion t han j udicial ipse dixit .” ) , aff’d, 638 F.3d 45 ( 4t h Cir.) , cert . denied, 132 S. Ct . 756 ( 2011) . The court agrees t hat firearm s t ransport ed in vehicles will “ alm ost always” not be open but hidden from t he view of ot hers out side of t he vehicle. Thus, t he Ordinance fairly represent s t he defendant ’s effort t o regulat e act ivit y sim ilar t o or in kind wit h t he concealed carry of firearm s. This conclusion is support ed by t he Or dinance’s very operat ion. I t groups t ransport ing a firearm in a vehicle and carrying a firearm concealed on one’s 34 body in applying t he exem pt ions list ed in subsect ion B. There is not hing unusual about t his legislat ive grouping and t reat ing t oget her t he act ivit ies of firearm s being t ransport ed in vehicles and firearm s being carried concealed on one’s body. See, e.g., Unit ed St at es v. Bridges, 2016 WL 3922354, at * 6 ( E.D. Mich. Jul. 21, 2016) ; Banks v. Gallagher, 2010 WL 5862994 at * 10 ( M.D. Pa. Dec. 13, 2010) , adopt ed in part and rej ect ed in part , 2011 WL 718632 ( M.D. Pa. Feb. 22, 2011) . The Fourt h Circuit described a federal regulat ion prohibit ing t he possession of loaded weapons in a m ot or vehicle on nat ional park areas as “ analogous t o t he lit any of st at e concealed carry prohibit ions specifically ident ified as valid in Heller.” Unit ed St at es v. Masciandaro, 638 F.3d 458, 474 ( 4t h Cir. 2011) . On t he ot her hand, t he court realizes t he apparent policy int erest s behind t he Ordinance do not squarely m at ch up wit h t hose hist orically expressed for regulat ing concealed carry, Pet erson, 707 F.3d at 1210- 11. Yet , t he court is sat isfied in t hat t hey share a com m on concern for preserving t he right t o self- defense wit hout creat ing unt oward and unseem ly circum st ances t hat go beyond self- defense. As st at ed in Pet erson, t he right “ is calculat ed t o incit e m en t o a m anly and noble defence of t hem selves, if necessary, and of t heir count ry, wit hout any t endency t o secret advant ages and unm anly assassinat ions.” 707 F.3d at 1210 ( quot ing St at e v. Chandler, 5 La. Ann. 489, 490 ( 1850) ) . The Ordinance exem pt s som eone wit h a KPFPA license which is obt ained only aft er t he applicant st at es t hat t he concealed 35 handgun license is desired “ as a m eans of lawful self- defense.” K.S.A. 757c05( a) ( 5) ( 2013) . Thus, not unlike in Pet erson, t he Ordinance works t o preserve a person’s need t o have a firearm for self- defense t hrough licensing. And even if som eone does not want a license, t he Ordinance does not prevent t he self- defense use of a firearm , but only aft er t he serious risk from firearm s fired from vehicles on public roads is reduced by st opping and exit ing t he vehicle. The court finds t he sim ilarit ies bet ween concealed carry and vehicular t ransport at ion t o be sufficient in t erm s of regulat ory effect , kind and purpose as t o j ust ify applying Pet erson here. Thus, t he court concludes t hat t he fair, logical and reasonable applicat ion of Pet erson here m eans t hat t here is no Second Am endm ent right for m em bers of t he public t o t ransport loaded and non- encased firearm s in t heir vehicles wit hout a concealed carry perm it . I n sum , t he plaint iff has failed t o m ake a st rong showing t hat his circum st ances are sufficient ly dist inguishable “ from t hose of persons hist orically excluded from Second Am endm ent prot ect ions.” Binderup v. At t y. Gen. U.S. of Am erica, 836 F.3d 336, 347 ( 3rd Cir. 2016) . Assum ing t he right im plicat ed by t he Ordinance com es wit hin t he Second Am endm ent and j um ping over t his first prong, as appellat e court s have som et im es “ deem ed it prudent t o” do, Woollard v. Gallagher, 712 F.3d 865, 875 ( 4t h Cir.) , cert . denied, 134 S. Ct . 422 ( 2013) , t he court would evaluat e t he Ordinance using t he t radit ional t est of int erm ediat e scrut iny followed by Tent h Circuit precedent , Bonidy, 790 F.3d at 1126. The court 36 does not consider t his level of m eans- end scrut iny t o be an open quest ion, as t he Tent h Circuit ’s holding is clear and indist inguishable from t his case and is consist ent wit h it s precedent , Unit ed St at es v. Reese, 627 F.3d 792, 802 ( 10t h Cir. 2010) , cert . denied, 563 U.S. 990 ( 2011) , and wit h t hat of ot her circuit s, see, e.g., Tyler v. Hillsdale Count y Sheriff’s Dept ., 837 F.3d 678, 692- 93 ( 6t h Cir. 2016) ( “ Many of our sist er circuit s have also held t hat int erm ediat e scrut iny is applicable.” ) ; Binderup v. At t y. Gen. U.S. of Am erica, 836 F.3d 336, 353 ( 3rd Cir. 2016) ; Jackson v. Cit y and Count y of San Francisco, 746 F.3d 953, 963- 65 ( 9t h Cir. 2014) , cert . denied, 135 S. Ct . 2799 ( 2015) ; Woollard v. Gallagher, 712 F.3d 865, 875 ( 4t h Cir. 2013) ; Unit ed St at es v. Booker, 644 F.3d 12, 25 ( 1st Cir. 2011) , cert . denied, 132 S. Ct . 1538 ( 2012) . The Tent h Circuit found in Bonidy t hat t his level of scrut iny “ m akes sense” because firearm s creat e “ inherent risks t o ot hers.” 790 F.3d at 1126. This risk dist inguishes t he Second Am endm ent right from t he ot her fundam ent al const it ut ional right s t hat receive st rict scrut iny. I d. “ I nt erm ediat e scrut iny appropriat ely places t he burden on t he governm ent t o j ust ify it s rest rict ions, while also giving governm ent s considerable flexibilit y t o regulat e gun safet y.” I d. I nt erm ediat e scrut iny is appropriat e here, because it does not burden t he core Second Am endm ent right of responsible, law- abiding cit izens t o self- defense wit hin t heir hom es, see Tyler, 837 F.3d at 691- 92, and because t he burden here, in light of t he license exem pt ion, is anyt hing but subst ant ial. 37 Despit e som e varying vocabulary bet ween t he circuit s on int erm ediat e scrut iny in Second Am endm ent cases, t he Tent h Circuit generally follows ot her circuit s, “ ’To pass const it ut ional m ust er under int erm ediat e scrut iny, t he governm ent has t he burden of dem onst rat ing t hat it s obj ect ive is an im port ant one and t hat it s obj ect ive is advanced by m eans subst ant ially relat ed t o t hat obj ect ive.’” Unit ed St at es v. Reese, 627 F.3d at 802 ( quot ing Unit ed St at es v. William s, 616 F.3d 685, 692 ( 7t h Cir.) , cert . denied, 562 U.S. 1092 ( 2010) ) ; Unit ed St at es v Huit ron- Guizar, 678 F.3d 1164, 1169 ( 10t h Cir.) ( “ Under t his st andard a law is sust ained if t he governm ent shows t hat it is ‘subst ant ially relat ed’ t o an ‘im port ant ’ official end.” ) , cert . denied, 133 S. Ct . 289 ( 2012) . I n looking at t he governm ent ’s int erest , t he court s recognize t he generalizat ions involved wit h law- m aking on “ t hreat t o public safet y—but general laws deal in generalit ies.” Huit ronGuizar, 678 F.3d at 1170. “ The bot t om line is t hat crim e cont rol and public safet y are indisput ably ‘im port ant ’ int erest s.” I d. As far as t he relat ionship bet ween t he obj ect ive and t he m eans, “ ’[ a] ll t hat is required is “ a fit t hat is not necessarily perfect , but reasonable; t hat represent s not necessarily t he single best disposit ion but one whose scope is in proport ion t o t he int erest served.” ’” Tyler, 837 F.3d at 693 ( quot ing Neinast v. Bd. of Trs. of Colum bus Met ro. Library, 346 F.3d 585, 594 ( 6t h Cir. 2003) ( quot ing in t urn Bd. of Trs. of St at e Univ. of N.Y. v. Fox, 492 U.S. 469, 480 ( 1989) ) , cert . denied, 541 U.S. 990 ( 2004) ) . “ To be sure, subst ant ial relat ion does not require every 38 individual in t he class t o exem plify t he im port ant obj ect ive.” Bonidy, 790 F.3d at 1134 ( Tym kovich J., dissent ing) ( cit ing Huit ron v. Guizar, 678 F.3d at 1169 ( prohibit ion of firearm s t o illegal aliens passes int erm ediat e scrut iny even if t he illegal alien has been in t he Unit ed St at es for decades) . Put anot her way, “ [ i] nt erm ediat e scrut iny does not require a perfect fit bet ween a rule’s obj ect ives and t he circum st ances of each individual subj ect t o t he rule.” Bonidy, 790 F.3d at 1127. The defendant Cit y observes t hat t he Ordinance does not ban t he t ransport of firearm s in vehicles but regulat es t he t ransport for safet y purposes. More specifically, t he Ordinance m ay alleviat e fears of law enforcem ent officers t hat vehicle occupant s who have not been subj ect ed t o concealed carry perm it background checks also do not have im m ediat e access t o loaded firearm s. This would not only prot ect officers upon an init ial t raffic st op and but upon any escalat ion of danger during t he st op. Handling loaded firearm s in a m oving vehicle on a public roadway present s an obvious safet y risk not only t o t he occupant s of t he vehicle but also t o t he public t raveling on t he roadway. The safe and secure t ransport of firearm s would det er t hose im m ediat e and em ot ionally charged responses t hat m ark dangerous, even fat al, road rage incident s. The Cit y of Shawnee is not alone in recognizing t hese im port ant public int erest s. I ndeed, t he Legislat ure of t he St at e of Kansas cert ainly affirm ed t hese sam e apparent public int erest s by exem pt ing t his very 39 circum st ance from it s general prohibit ion on cit y and count y regulat ion of firearm s. See K.S.A. 12- 16,125( b) ( 4) . Safet y for t hose riding in a vehicle, for ot hers on t he road and for law enforcem ent officers is wit hout quest ion a significant , subst ant ial and im port ant governm ent al int erest . The anim at ing int erest s here are im port ant in ensuring firearm s are safely t ransport ed, in prot ect ing against loaded firearm s being im m ediat ely accessible t o vehicle occupant s who have not received firearm t raining and have not been subj ect ed t o a crim inal and m ent al background check as part of t he KPFPA licensing process, and in reducing t he risk of loaded firearm s becom ing a part of a t raffic st op or a road rage incident . The plaint iff Clark w ant s t o focus on what specific int ent was expressed by t he Cit y in enact ing t his Ordinance. The plaint iff also want s t o debat e whet her t hose having crim inal int ent would abide wit h t his Ordinance. Finally, t he plaint iff want s em pirical evidence from t he Cit y t o support t hat t his Ordinance will serve t hese st at ed obj ect ives. Because t his Ordinance expressly em bodies an exem pt ion creat ed by t he Kansas Legislat ure and because t his Ordinance plainly addresses subst ant ial and im port ant governm ent al int erest s, t he court deem s t his debat e unnecessary. As for proof t hat t he Ordinance em ploys m eans subst ant ially relat ed t o t he obj ect ives being advanced, t his is apparent from t he face of t he Ordinance, from t he evidence present ed in t he defendant ’s brief, and from ot her cases. 40 The court finds t he Ordinance is reasonably t ailored and adapt ed t o m eet it s obj ect ives. The licensing exem pt ion plainly serves t he safet y int erest s advanced by firearm t raining and background checks and also insures t hat t hose needing im m ediat e access t o loaded firearm s for selfdefense are able t o secure it . The balance of t he Ordinance im poses rest rict ions t hat are reasonable and have a scope in proport ion t o t he int erest s served. Firearm s, even if cased and unloaded, rem ain available for one’s self- defense and m ay st ill be t ransport ed in a vehicle. The Ordinance rest rict s only t he m anner in which t hey m ay be t ransport ed. The Ordinance reasonably addresses t he danger of carrying and firing loaded weapons from a vehicle on a public roadway. The Ordinance’s result ing delay t o im m ediat e access t o a loaded weapon is not unreasonable or disproport ionat e t o achieving t he im port ant governm ent al int erest s. The court also has considered t he defendant ’s st at ist ical evidence on officers killed and assault ed in t he line of dut y and during t raffic st ops. Finally, t he court is persuaded by t he Fourt h Circuit ’s analysis in Masciandaro upholding a federal regulat ion t hat prohibit ed carrying or possessing a loaded weapon in a m ot or vehicle wit hin t he nat ional park areas. The court found: We also conclude t hat § 2.4( b) 's narrow prohibit ion is reasonably adapt ed t o t hat subst ant ial governm ent al int erest . Under § 2.4( b) , nat ional parks pat rons are prohibit ed from possessing loaded firearm s, and only t hen wit hin t heir m ot or vehicles. 36 C.F.R. § 2.4( b) ( “ Carrying or possessing a loaded weapon in a m ot or vehicle, vessel, or ot her m ode of t ransport at ion is prohibit ed” ) . We have no occasion 41 in t his case t o address a regulat ion of unloaded firearm s. Loaded firearm s are surely m ore dangerous t han unloaded firearm s, as t hey could fire accident ally or be fired before a pot ent ial vict im has t he opport unit y t o flee. The Secret ary could have reasonably concluded t hat , when concealed wit hin a m ot or vehicle, a loaded weapon becom es even m ore dangerous. I n t his respect , § 2.4( b) is analogous t o t he lit any of st at e concealed carry prohibit ions specifically * 474 ident ified as valid in Heller. See 128 S.Ct . at 2816–17. By perm it t ing park pat rons t o carry unloaded firearm s wit hin t heir vehicles, § 2.4( b) leaves largely int act t he right t o “ possess and carry weapons in case of confront at ion.” Heller, 128 S.Ct . at 2797. While it is t rue t hat t he need t o load a firearm im pinges on t he need for arm ed self- defense, see Volokh, I m plem ent ing t he Right for Self– Defense, 56 U.C.L.A. L. Rev. at 1518–19, int erm ediat e scrut iny does not require t hat a regulat ion be t he least int rusive m eans of achieving t he relevant governm ent obj ect ive, or t hat t here be no burden what soever on t he individual right in quest ion. See Unit ed St at es v. Baker, 45 F.3d 837, 847 ( 4t h Cir. 1995) . Moreover, because t he Unit ed St at es Park Police pat rol Daingerfield I sland, t he Secret ary could conclude t hat t he need for arm ed self- defense is less acut e t here t han in t he cont ext of one's hom e. Accordingly, we hold t hat , on Masciandaro's as- applied challenge under t he Second Am endm ent , § 2.4( b) sat isfies t he int erm ediat e scrut iny st andard. Masciandaro, 638 F.3d at 473–74. The Fourt h Circuit ’s m eans- end scrut iny fairly parallels and support s t he court ’s evaluat ion of t he Ordinance here. The court concludes t hat t he Ordinance sat isfies t he int erm ediat e scrut iny st andard and prevails against Clark’s as- applied challenge on t his second prong t oo. Suffice it t o say, t his sam e analysis would necessarily sat isfy t he rat ional basis scrut iny as well. Finally, t o reit erat e an earlier point , t he court also follows Masciandaro in rej ect ing Clark’s facial overbreadt h challenge t o t he Ordinance. I d. at 474. I T I S THEREFORE ORDERED t hat t he plaint iffs’ m ot ion for part ial sum m ary j udgm ent ( Dk. 86) , t he plaint iffs’ second m ot ion for part ial 42 sum m ary j udgm ent ( Dk. 128) , t he plaint iffs’ m ot ions for review ( Dks. 124 and 134) , and t he Cit y’s m ot ion t o st rike ( Dk. 130) are denied; I T I S FURTHER ORDERED t hat t he Cit y’s m ot ion for sum m ary j udgm ent ( Dk. 108) is grant ed. The clerk of t he court shall ent er j udgm ent for t he defendant Cit y. Dat ed t his 5 t h day of January, 2017, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 43

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