[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-13739

________________________

D.C. Docket No. 4:14-cv-00139-HLM

GEORGIACARRY.ORG, INC., 

DAVID JAMES, 

 Plaintiffs - Appellants,

versus

THE U.S. ARMY CORPS OF ENGINEERS, 

JON CHYTKA, 

in his official Capacity as Commander, 

Mobile District of the US Army Corps of Engineers, 

 Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(June 9, 2015)

Before MARCUS, ROSENBAUM, and GINSBURG,* Circuit Judges.

MARCUS, Circuit Judge: 

 * Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of Columbia, 

sitting by designation.

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This case involves a Second Amendment challenge to a federal regulation 

that bans loaded firearms and ammunition on property managed by the U.S. Army 

Corps of Engineers. The district court denied the plaintiffs’ motion for a 

preliminary injunction in a thorough and thoughtful order. Before this Court, the 

plaintiffs hang their hats on a single, sweeping argument: that the regulation 

completely destroys their Second Amendment rights, thereby obviating the need 

for a traditional scrutiny analysis. We disagree. The regulation does not 

completely destroy the plaintiffs’ right to bear arms because its effect is cabined to 

a limited geographic area designed for recreation. Whatever else the regulation 

does, it does not destroy the plaintiffs’ Second Amendment right to keep and bear 

arms altogether. Thus, we affirm the district court’s order and remand for further 

proceedings consistent with this opinion.

I.

The U.S. Army Corps of Engineers owns and manages various water 

resource development projects, such as dams and reservoirs, throughout the United 

States. These projects sometimes include recreational sites, such as parks and 

campgrounds, offered for public use. See 16 U.S.C. § 460d. The Corps prohibits 

the possession of loaded firearms or ammunition at any of these projects (except in 

designated hunting areas and shooting ranges) without the written permission of a 

district commander. The applicable federal regulation reads this way:

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(a) The possession of loaded firearms, ammunition, loaded projectile 

firing devices, bows and arrows, crossbows, or other weapons is 

prohibited unless:

(1) In the possession of a Federal, state or local law 

enforcement officer;

(2) Being used for hunting or fishing as permitted under 

§ 327.8, with devices being unloaded when transported 

to, from or between hunting and fishing sites;

(3) Being used at authorized shooting ranges; or

(4) Written permission has been received from the 

District Commander.

(b) Possession of explosives or explosive devices of any kind, 

including fireworks or other pyrotechnics, is prohibited unless written 

permission has been received from the District Commander.

36 C.F.R. § 327.13. A violation of this ban is punishable by a $5,000 fine, six 

months’ imprisonment, or both. Id. § 327.25(a).

The plaintiffs, GeorgiaCarry.Org (“GCO”) and David James, seek a 

preliminary injunction enjoining the enforcement of this regulation on the ground

that it violates their Second Amendment rights. GCO is a Georgia-based nonprofit organization whose mission is to “foster the rights of its members to keep 

and bear arms.” James is a Georgia resident (and GCO member) who possesses a 

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Georgia weapons carry license1 and regularly carries a handgun with him, where 

permitted, in case of confrontation.

James frequently visits and camps at Allatoona Lake, a recreational site 

managed by the Corps around the Allatoona Dam in northwest Georgia. James 

(and other members of the GCO) would like to carry their handguns with them 

while they visit and camp at Allatoona and other Corps property. In May 2014, 

James requested written permission from defendant Jon Chytka, Commander of the 

Mobile District of the Corps (which includes Allatoona), to carry a firearm at 

Allatoona, pursuant to 36 C.F.R. § 327.13(a)(4). On June 9, Commander Chytka 

denied the request.

Three days later, the plaintiffs commenced this action in the United States

District Court for the Northern District of Georgia. The plaintiffs maintain that the

application of the Corps’ firearm prohibition against them violated the Second 

Amendment, and seek a declaratory judgment as well as both preliminary and 

permanent injunctions. On August 18, the district court denied the plaintiffs’ 

motion for a preliminary injunction. In determining whether the plaintiffs had 

demonstrated a substantial likelihood of success on the merits, the court first held 

that the restricted activity was not protected by the Second Amendment. It 

surveyed the history of the Corps and concluded that it was “[un]fathom[able] that 

 1 Such a license is required under Georgia law to carry a handgun outside one’s home, car, or 

business. See Ga. Code Ann. §§ 16-11-126, 16-11-129 (West 2015).

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the framers of the Constitution would have recognized a civilian’s right to carry 

firearms on property owned and operated by the United States military, especially 

when such property contained infrastructure projects central to our national 

security and well being.” GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs

(GeorgiaCarry.Org II), 38 F. Supp. 3d 1365, 1373 (N.D. Ga. 2014). The court 

noted that no appellate caselaw supported the plaintiffs. It reasoned that the 

regulation at issue fit within the Supreme Court’s explicit carve-out in District of 

Columbia v. Heller, 554 U.S. 570, 626-27 (2008), for “laws forbidding the 

carrying of firearms in sensitive places,” and observed that the Eleventh Circuit’s 

post-Heller decision GeorgiaCarry.Org v. Georgia (GeorgiaCarry.Org I), 687 F.3d 

1244 (11th Cir. 2012), supported the defendants insofar as it recognized the right 

of property owners (in this case, the federal government) to exclude firearms from 

their property. It then determined that the regulation at issue did not burden the 

plaintiffs’ Second Amendment right to self-defense, as it did not regulate firearm 

possession within the home and did not effectively eliminate the ability to bear 

arms outside the home.

The finding that the regulated conduct fell outside the scope of the Second 

Amendment was fatal to the plaintiffs’ motion. Nevertheless, “out of an 

abundance of caution” the district court went on to consider whether the regulation 

would withstand constitutional scrutiny if the Second Amendment were 

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implicated. GeorgiaCarry.Org II, 38 F. Supp. 3d at 1376. First, the court 

determined that the regulation would be evaluated under intermediate -- not strict -

- scrutiny, because the Corps’ regulation was merely “managerial action affecting 

only government owned lands,” it affected only “a finite amount of property . . . 

that plaintiffs arguably [did not] need to use on a regular basis,” and because the 

plaintiffs’ presence on the land was voluntary. Id. at 1376-77. The court then 

determined that the regulation withstood intermediate scrutiny. It reasoned that the 

Corps had a substantial interest in providing safe recreational sites while protecting 

its resources. Relying on record evidence indicating that potentially violent 

conflicts on Corps campgrounds were inevitable, it found that the firearm 

regulation was a reasonable fit to the Corps’ interests by contributing to visitor 

safety and protecting infrastructure projects -- particularly in light of the Corps’ 

limited ability to police its own property.2

 Thus, whether the conduct implicated 

the Second Amendment or not, the court found no substantial likelihood of success 

for the plaintiffs.

The court also determined that the plaintiffs failed the remaining prongs of 

the preliminary injunction standard. It found no irreparable injury because the 

plaintiffs had not shown a substantial likelihood of constitutional deprivation, and 

 2 Corps Park Rangers may issue citations, but they are not authorized by Congress to carry 

firearms, execute search warrants, or make arrests. See 16 U.S.C. § 460d; 36 C.F.R. § 327.25. 

As a result, the Corps must rely on cooperative agreements with local law enforcement agencies 

to provide increased patrols during peak visitation periods.

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it found that the balance of harms and the public interest did not favor the plaintiffs 

since an injunction could force the Corps to “remold the entire regulatory 

framework governing recreation” at its facilities. Id. at 1379.

The plaintiffs timely appealed.

II.

We review the district court’s denial of a preliminary injunction for abuse of 

discretion. Scott v. Roberts, 612 F.3d 1279, 1289 (11th Cir. 2010). Findings of 

fact are reviewed for clear error and legal conclusions are reviewed de novo. Id. 

“A party seeking a preliminary injunction bears the burden of establishing its 

entitlement to relief.” Id. To obtain such relief, the moving party must show: (1) a 

substantial likelihood of success on the merits; (2) that it will suffer irreparable 

injury unless the injunction is issued; (3) that the threatened injury outweighs 

possible harm that the injunction may cause the opposing party; and (4) that the 

injunction would not disserve the public interest. Burk v. Augusta-Richmond 

Cnty., 365 F.3d 1247, 1262-63 (11th Cir. 2004). “[A] preliminary injunction is an 

extraordinary and drastic remedy that should not be granted unless the movant 

clearly carries its burden of persuasion on each of these prerequisites.” Suntrust 

Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001) (per curiam).

In analyzing a Second Amendment claim, this Court has followed a two-step 

analysis: “first, we ask if the restricted activity is protected by the Second 

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Amendment in the first place; and then, if necessary, we . . . apply the appropriate 

level of scrutiny.” GeorgiaCarry.Org I, 687 F.3d at 1260 n.34; accord Heller v. 

District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. 

City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011); United States v. Chester, 

628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 

(10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).

III.

A.

We begin by asking whether the plaintiffs have established a substantial 

likelihood of success on their claim that the application3 of the Corps firearms 

regulation violated their Second Amendment rights. The Second Amendment 

provides, “A well regulated Militia, being necessary to the security of a free State, 

the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. 

amend. II. The Supreme Court recently revolutionized Second Amendment 

jurisprudence in its landmark cases District of Columbia v. Heller, 554 U.S. 570 

(2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010). In Heller, the 

 3 The plaintiffs characterize their challenge as both facial and as-applied, but we agree with the 

district court that it must be considered as-applied. See GeorgiaCarry.Org II, 38 F. Supp. 3d at

1371 n.3. The plaintiffs never explain why the regulation would be unconstitutional even if the 

district commander had granted permission to carry a weapon pursuant to 36 C.F.R. § 

327.13(a)(4). Thus, as the district court explained, the “[p]laintiffs do not attempt to establish 

that no set of circumstances exists under which the [regulation] would be valid,” as required for a 

facial challenge. Id. (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)) (internal 

quotation marks omitted).

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Court held for the first time that the Second Amendment “codified a pre-existing 

individual right to keep and bear arms,” GeorgiaCarry.Org I, 687 F.3d at 1259 

(quoting Heller, 554 U.S. at 592) (internal quotation marks omitted), for the “core 

lawful purpose of self-defense,” Heller, 554 U.S. at 630, at least in the home, see

id. at 628. The Court identified the content of the Second Amendment right by 

examining the original public meaning of the Amendment’s text and the 

understanding of the right to bear arms in the eighteenth and nineteenth centuries. 

Id. at 576-619. But the Heller Court was careful to note that the Second 

Amendment right was “not unlimited.” Id. at 626. In particular, the Court 

cautioned:

[N]othing in our opinion should be taken to cast doubt on 

longstanding prohibitions on the possession of firearms by felons and 

the mentally ill, or laws forbidding the carrying of firearms in 

sensitive places such as schools and government buildings, or laws 

imposing conditions and qualifications on the commercial sale of 

arms.

Id. at 626-27. The Court identified this dictum as a non-exhaustive list of 

“presumptively lawful regulatory measures.” Id. at 627 n.26.

Having set out the basic contours of the Second Amendment right to bear 

arms, the Court struck down a District of Columbia firearm law that “totally 

ban[ned] handgun possession in the home” and “require[d] that any lawful firearm 

in the home be disassembled or bound by a trigger lock at all times, rendering it 

inoperable.” Id. at 628. The Court did not identify the applicable tier of 

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constitutional scrutiny, holding that the prohibition was so severe that it failed 

under any version of heightened scrutiny. See Heller, 554 U.S. at 628-29, 628 

n.27. In finding that the ban “fail[ed] constitutional muster,” the Court noted in 

particular that the D.C. ban extended “to the home, where the need for defense of 

self, family, and property is most acute.” Id. at 628.

Two years later, in McDonald, the Court considered a challenge to a 

Chicago law that “effectively ban[ned] handgun possession by almost all private

citizens who reside in the City.” 561 U.S. at 750. The Court ruled that the 

Fourteenth Amendment incorporated the Second Amendment, making it applicable 

against the states, and remanded for further proceedings. Id. at 791. In so doing, 

the Court reiterated that “individual self-defense is the central component of the 

Second Amendment right,” and that “citizens must be permitted to use handguns

for the core lawful purpose of self-defense.” Id. at 767-68 (alteration omitted) 

(quoting Heller, 554 U.S. at 599, 630) (internal quotation marks omitted). 

This Court has ventured onto the terrain of post-Heller Second Amendment 

jurisprudence on three notable occasions. In United States v. White, 593 F.3d 

1199 (11th Cir. 2010), we upheld against Second Amendment challenge the federal 

prohibition on the possession of firearms by persons convicted of the misdemeanor 

crime of domestic violence, 18 U.S.C. § 922(g)(9). We noted that the Heller Court 

had specifically identified the federal prohibition on the possession of firearms by 

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felons, § 922(g)(1), as “presumptively lawful,” and that § 922(g)(9) had been 

enacted to close the “dangerous loophole” that placed many violent domestic 

abusers outside the scope of § 922(g)(1) because they were never charged with or 

convicted of felonies. Id. at 1205. We noted that § 922(g)(9) was also narrower 

than § 922(g)(1), as it required a predicate act of violence for a conviction, whereas 

“an armed robber and [a] tax evader” were treated equally under § 922(g)(1). Id. at 

1206. Thus, by analogy, we saw “no reason to exclude § 922(g)(9) from the list of 

longstanding prohibitions on which Heller does not cast doubt.” Id. Three months 

after White, we considered a challenge to § 922(g)(1) itself in United States v. 

Rozier, 598 F.3d 768 (11th Cir. 2010) (per curiam). We again relied on Heller’s 

self-limiting dictum that it should not “be taken to cast doubt on longstanding 

prohibitions on the possession of firearms by felons,” 554 U.S. at 626, and upheld 

the law. See Rozier, 598 F.3d at 770-71.

Finally, in GeorgiaCarry.Org I, we upheld a Georgia law barring the 

unrestricted carrying of firearms in eight specific locations, including “place[s] of 

worship.” 687 F.3d at 1248-49. For the first time we joined our sister circuits in 

extrapolating from Heller and McDonald a two-step inquiry for evaluating Second 

Amendment claims: “first, we ask if the restricted activity is protected by the 

Second Amendment in the first place; and then, if necessary, we . . . apply the 

appropriate level of scrutiny.” Id. at 1260 n.34. We resolved the case at the first 

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step. In applying that step, we followed Heller’s “command[]” to consider “the 

historical background of the Second Amendment.” Id. at 1261. We surveyed 

nineteenth century property law, tort law, and criminal law and concluded that “the 

pre-existing right codified in the Second Amendment does not include protection 

for a right to carry a firearm in a place of worship against the owner’s wishes.” Id.

at 1264. Specifically, we reasoned that one common application of Georgia’s 

statute would be to vindicate the private owner of a place of worship who did not 

want a visitor to bring a firearm on to his property. We held that any Second 

Amendment right “must be limited by the equally fundamental right of a private 

property owner to exercise exclusive dominion and control over its land.” Id. at 

1265. The plaintiffs had brought a facial challenge, id. at 1260, and because “[o]ne 

common application of the [statute] would be when [an individual] wants to carry a 

firearm in a place of worship where management of the place of worship prohibits 

carrying,” id. at 1261, the facial challenge failed.

None of these cases is dispositive of the issue before us today, but they 

provide the necessary background for our decision.

B.

In evaluating a Second Amendment claim like the one before us, we would 

typically engage in the two-step analysis adopted in GeorgiaCarry.Org I: (1) Is the 

restricted activity protected by the Second Amendment in the first place? (2) If so, 

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does it pass muster under the appropriate level of scrutiny? But in the case before 

us, we need not venture down that road for two reasons. First, the plaintiffs have 

raised only a single argument that fails on its own terms, contending that the 

burden on their constitutional right is so severe that no scrutiny analysis is 

necessary. Second, the case reaches us on a scant preliminary injunction record, 

and we lack the factual context needed to answer a variety of questions critical to 

the constitutional inquiry. We have no reason to and we do not today address 

whether the Corps’ firearms regulation would pass muster under any form of 

elevated scrutiny. Therefore, we uphold the district court’s denial of the plaintiffs’ 

motion for a preliminary injunction and return the matter to the district court for 

further factual development and consideration of the plaintiffs’ request for a 

permanent injunction and declaratory relief.

1.

The plaintiffs in this appeal swing for the fences. Before this Court they 

advance only one constitutional argument: that the Corps’ firearms regulation is 

“unconstitutional per se” because it “destroys the Second Amendment right 

altogether on Corps property.” The plaintiffs contend that, as in Heller, the 

regulation in this case is so destructive of the right to bear arms that no scrutiny

analysis is required.

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In making this argument, the plaintiffs lean heavily on a recent decision of

the Ninth Circuit, Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014), 

reh’g en banc granted, 781 F.3d 1106 (9th Cir. 2015). In that case, the court 

considered a challenge to San Diego County’s concealed-carry license regime, in 

which an individual’s “concern for [his own] personal safety alone [was] not 

considered good cause” sufficient to obtain a license to carry a firearm outside the 

home, unless the individual could “document specific threats against [him].” 742 

F.3d at 1148 (internal quotation marks omitted). After extensive textual and 

historical analysis, a divided panel concluded that “the right to bear arms includes 

the right to carry an operable firearm outside the home for the lawful purpose of 

self-defense.” Id. at 1166. The San Diego County policy, the court found,

prevented “the typical responsible, law-abiding citizen” from exercising that right,

because the only way such a citizen could carry a weapon in public for self-defense 

was with a concealed-carry permit,

4 and merely fearing for one’s public safety 

could not establish the “good cause” required to obtain a permit. See id. at 1169. 

Thus, the court concluded that the permitting scheme was “the rare law that 

‘destroys’ the [Second Amendment] right” altogether, thereby obviating any need 

for scrutiny analysis and “requiring Heller-style per se invalidation.” Id. at 1170.

 4 California law prohibits the open carriage of firearms, so concealed carry was the only lawful

option for a citizen wishing to carry a gun in public. See Peruta, 742 F.3d at 1172 (citing Cal. 

Penal Code § 26350).

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The plaintiffs in this case claim that the same analysis applies. They argue 

that because the Corps’ regulation permits only unloaded firearms and prohibits 

ammunition, their right to bear arms in self-defense at Allatoona has been 

completely destroyed, and thus the regulation “cannot be upheld under any 

[constitutional] standard.” This argument carried the day in the District of Idaho, 

where the court relied on Peruta in permanently enjoining the Corps from 

enforcing its firearms regulation in Idaho. See Morris v. U.S. Army Corps of 

Eng’rs, No. 3:13-CV-00336-BLW, 2014 WL 5177343 (D. Idaho Oct. 13, 2014), 

appeal filed sub. nom. Nesbitt v. U.S. Army Corps of Eng’rs, No. 14-36049 (9th 

Cir. Dec. 10, 2014).

Before this Court, however, the plaintiffs strike out. Of course, we are in no 

way bound (as the Idaho district court was) by Peruta,

5 and we need not take a 

stand on Peruta’s persuasiveness because, even accepting that the right to bear 

arms extends outside the home, the plaintiffs’ argument fails on its own terms. 

Peruta and Heller -- the cases the plaintiffs rely on in which the Second 

Amendment right was “destroyed” -- involved vastly broader firearms regulations

than the restriction at issue here. The law in Heller “totally ban[ned] handgun 

possession in the home” throughout the District of Columbia, 554 U.S. at 628, 

while the policy in Peruta generally banned the carriage of firearms everywhere 

 5 Incidentally, Peruta is no longer binding law even in the Ninth Circuit now that en banc review 

has been granted. See 781 F.3d at 1106.

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outside the home throughout San Diego County, see 742 F.3d at 1170. The Corps’

firearms regulation, in sharp contrast, applies only to Corps property: it is narrowly 

cabined to a specific area, and in this case that area is specifically designated for 

recreation. The plaintiffs can freely exercise their right to bear arms for selfdefense elsewhere, whether in the home or on the streets, without running afoul of 

this regulation. Cf. Moore v. Madigan, 702 F.3d 933, 940 (7th Cir. 2012) (“A 

blanket prohibition on carrying gun[s] in public prevents a person from defending 

himself anywhere except inside his home . . . . In contrast, when a state bans guns 

merely in particular places . . . a person can preserve an undiminished right of selfdefense by not entering those places . . . .”). And as the district court noted, the 

plaintiffs’ presence at Allatoona was voluntary -- they did not “need to use [the 

Allatoona campgrounds] on a regular basis.” GeorgiaCarry.Org II, 38 F. Supp. 3d 

at 1377. Other areas for camping and recreation are available to the plaintiffs 

where their Second Amendment rights would be undisturbed by 36 C.F.R. § 

327.13, including national parks6 and Georgia state parks.7

 The limited scope of 

 6 Although firearms were once restricted in national parks, see United States v. Masciandaro, 638 

F.3d 458, 467 (4th Cir. 2011) (upholding a federal regulation that prohibited carrying a loaded 

weapon in a motor vehicle within national parks), as of 2010 visitors are permitted to possess 

firearms in national parks to whatever extent they are allowed under state law. See Credit Card 

Accountability Responsibility and Disclosure Act of 2009, Pub. L. No. 111-24, § 512(b), 123 

Stat. 1734, 1765 (2009) (“The Secretary of the Interior shall not promulgate or enforce any 

regulation that prohibits an individual from possessing a firearm . . . in any unit of the National 

Park System . . . if . . . the individual is not otherwise prohibited by law from possessing the 

firearm; and . . . the possession of the firearm is in compliance with the law of the State in which 

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the regulation provides a powerful distinction from the cases on which the 

plaintiffs rely; so narrow a restriction on so limited a geographic expanse cannot 

fairly be said to destroy the plaintiffs’ Second Amendment rights altogether. The 

Corps’ firearms regulation does not reach nearly as far as the regulations at issue in 

Heller or Peruta, and the plaintiffs cannot prevail simply by arguing that this case 

must reach the same result.8 This regulation does not gut the plaintiffs’ general 

right to keep and bear arms in self-defense.

The plaintiffs advance only a single, all-or-nothing argument -- as their 

counsel conceded at the lectern. Thus, the only question squarely before us is 

whether the plaintiffs demonstrated a substantial likelihood of success on the 

merits under this theory. They did not. 

2.

 

the unit of the National Park System . . . is located.”).

7 See Ga. Code Ann. § 12-3-10(o)(3) (West 2015) (“It shall be unlawful for any person to use or 

possess in any park, historic site, or recreational area any handgun without a valid weapons carry 

license issued pursuant to Code Section 16-11-129.”); Ga. Dep’t of Natural Res., Park Rules and 

Regulations, State Parks and Historic Sites, http://gastateparks.Org/rules (last visited June 1, 

2015) (“A person possessing a valid weapon-carry license to carry a firearm valid in this state 

may carry such firearm on Georgia State Parks and Historic Sites . . . .”).

8 The cases the plaintiffs cite from the District Court for the District of Columbia, Palmer v. 

District of Columbia, 59 F. Supp. 3d 173 (D.D.C. 2014), and Wrenn v. District of Columbia, No. 

1:15-cv-162-FJS, 2015 WL 3477748 (D.D.C. May 18, 2015), are similarly distinguishable. Each 

relied extensively on Peruta and each involved licensing regimes that regulated the carrying of 

handguns throughout the District, not cabined to specific recreational areas.

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Having addressed the plaintiff’s sole contention, we are not called upon to 

engage in a full constitutional scrutiny analysis -- nor should we do so on the basis 

of so limited a factual record and narrow argumentation. The district court 

performed a full constitutional analysis on the basis of a scant preliminary 

injunction record. After discovery, it will have an opportunity to reconsider its 

analysis against a fuller factual background and better developed arguments. 

First, although our caselaw instructs that we must look to history in 

evaluating a Second Amendment claim, none of the parties before this Court have 

provided any historical evidence to inform our analysis. Heller held that the 

Second Amendment “codified a pre-existing right,” so the courts must consider the 

Amendment’s historical background to understand its content. 554 U.S. at 592

(emphasis omitted); see GeorgiaCarry.Org I, 687 F.3d at 1261 (“Heller commands 

that, in passing on a Second Amendment claim, courts must read the challenged 

statute in light of the historical background of the Second Amendment.”). 

Moreover, Heller described the types of regulations on which it did not “cast 

doubt” as “longstanding.” 554 U.S. at 626-27. This has led some courts to 

consider the historical pedigree of challenged regulations in conducting a Second 

Amendment analysis. See, e.g., Nat’l Rifle Ass’n of Am. v. Bureau of Alcohol, 

Tobacco, Firearms, & Explosives, 700 F.3d 185, 196-97 (5th Cir. 2012); Heller II, 

670 F.3d at 1253-55.

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The district court made an admirable effort to undertake this historical 

inquiry on an accelerated preliminary injunction timeline. As it noted, the Corps 

has existed in some form as part of the Army since the Revolutionary War, and 

was formally established in 1802. See GeorgiaCarry.Org II, 38 F. Supp. 3d at 

1371-72 (citing U.S. Army Corps of Eng’rs Office of History, The U.S. Army 

Corps of Engineers: A History 1, 8 (2008), 

http://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlet

s/EP_870-1-68.pdf [hereinafter Army Corps History]). In its early days, the Corps 

was primarily concerned with constructing fortifications for defense purposes, but 

slowly began to take on additional civil responsibilities, including surveying, 

exploring, and cartography. See Army Corps History at 11-12, 22. From our 

research, it appears that the Corps began managing recreational areas in 1944. See

Act of Dec. 22, 1944, Pub. L. No. 78-534, 58 Stat. 887, 889 (“The Chief of 

Engineers, under the supervision of the Secretary of War, is authorized to 

construct, maintain, and operate public park and recreational facilities in reservoir 

areas under the control of the War Department . . . .”). The first Corps firearms 

restrictions appear to have been enacted in 1946. 11 Fed. Reg. 9278, 9279 § 301.8 

(Aug. 22, 1946) (“Firearms and explosives. Loaded rifles, loaded pistols, and 

explosives are prohibited in the reservoir area.”). Meanwhile, the first federal 

firearms restrictions for national parks -- similar federally managed recreational 

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sites -- seem to have been established in 1936, and to have appeared in the first 

edition of the Code of Federal Regulations at 36 C.F.R. § 2.9 in 1938. See 1 Fed.

Reg. 672, 674 (June 27, 1936) (“Firearms, explosives, traps, seines, and nets are 

prohibited within the parks and monuments, except upon written permission of the 

superintendent or custodian.”). But without any guidance from the parties, we 

have not had the opportunity for a thorough historical survey, and we are reluctant 

now to perform the historical analysis our caselaw requires. These are difficult 

questions that deserve the full benefit of our adversarial system.

Second, the preliminary injunction record does a limited job fleshing out a 

variety of factual issues that may bear upon a Second Amendment analysis. Thus, 

for example, as to the issue of whether the Corps property constitutes what Heller

called a “sensitive place,” we are missing basic information. Among others, we do 

not know the size of the Allatoona Dam, a major feature of the water resource 

development project and (all parties agree) a potential national security concern.

Nor do we know the size of the recreational area at issue in this case -- that is, 

where the plaintiffs seek to carry their weapons in this as-applied challenge. 

Moreover, we have no way of telling how far the recreational area extends beyond 

the dam, whether the recreational area is separated from the dam itself by a fence 

or perimeter, or to what extent the dam is policed. All this preliminary injunction 

record reveals is that the dam itself is a national security concern and that the 

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federal government (through the Corps) has opened a large parcel of nearby land 

for recreation.

Moreover, any constitutional elevated scrutiny analysis -- strict or 

intermediate -- would require us to consider the fit between the challenged 

regulation and its purpose. See, e.g., Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 775 

F.3d 308, 330 (6th Cir. 2014) (articulating strict scrutiny in the Second 

Amendment context as asking whether the government regulation “furthers a 

compelling interest and is narrowly tailored to achieve that interest” (quoting 

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010))), reh’g en 

banc granted & opinion vacated, No. 13-1876 (6th Cir. Apr. 21, 2015); Heller II, 

670 F.3d at 1258 (articulating intermediate scrutiny in the Second Amendment 

context as asking whether the government regulation is “substantially related to an 

important governmental objective” (quoting Clark v. Jeter, 486 U.S. 456, 461 

(1988))); cf. Eng’g Contractors Ass’n of S. Fla. v. Metro. Dade Cnty., 122 F.3d 

895, 906-07 (11th Cir. 1997) (articulating the same strict and intermediate scrutiny 

standards in the equal protection context). 

In this case, the government’s stated and plainly legitimate objective is 

promoting public safety on Corps property. But we lack much of the basic 

information we would need to assess the risks found at Allatoona Lake. For 

example, we do not know how heavily trafficked the relevant area is at various 

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times of the year,9 nor what types of activities the visitors engage in, nor how the 

visitors are distributed throughout the property. All we have before us is an 

affidavit from a single Corps Park Ranger that speaks in generalities about the 

presence of visitors and their potential sources of conflict. We also have no 

evidence about the dangers currently facing Allatoona visitors, including the 

frequency and nature of crimes committed or of altercations amongst visitors. And 

although we are told that the Corps has the authority to coordinate with local law 

enforcement to provide additional patrols during peak visitation periods, we do not 

know whether the Mobile District of the Corps has done so. In fact, other than a 

description of the general law enforcement limitations of Corps Park Rangers, we 

know almost nothing about the nature of the police presence at Allatoona Lake. In 

sum, we do not have before us any empirical data that might aid in assessing the fit 

between the challenged regulation and the government’s asserted objective. This 

slim preliminary injunction record does not provide nearly enough information to 

enable a court to fairly engage in a thorough constitutional analysis.

With a fuller record and more thorough briefing, the district court will have 

the opportunity again to engage in a complete constitutional analysis. We hold 

today only that the district court did not abuse its discretion in denying the 

 9 The plaintiffs asserted in their complaint that Allatoona Lake receives “over [six] million 

visitors per year,” a figure the district court repeated and that the government assumed to be true 

for purposes of its motion in opposition. Even assuming that number is correct, we still do not 

know how many visitors, on average, are present at Allatoona Lake at any given time of the year.

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plaintiffs’ request for a preliminary injunction on the basis of this limited record 

and in the face of the plaintiffs’ sweeping argument that the Corps’ firearms 

regulation was “per se unconstitutional” because it “destroy[ed] . . . altogether”

their Second Amendment right to keep and bear arms. We offer no opinion about

the ultimate disposition of this case -- whether the plaintiffs are entitled to a 

permanent injunction barring the enforcement of 36 C.F.R. § 327.13 or to 

declaratory relief.

Because the plaintiffs have not shown a substantial likelihood of success on 

the merits, we need not consider the remaining factors in the preliminary injunction 

test. See ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 

(11th Cir. 2009) (“Failure to show any of the four factors is fatal, and the most 

common failure is not showing a substantial likelihood of success on the merits.”) 

Accordingly, we AFFIRM.

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