ANDREW HANSON, ET AL., APPELLANTS v. DISTRICT OF COLUMBIA AND PAMELA A. SMITH, APPELLEES
No. 23-7061
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2024 Decided October 29, 2024
Edward M. Wenger argued the cause for appellants. With him on the briefs were George L. Lyon, Jr. and Mateo Forero-Norena.
Ashwin P. Phatak, Principal Deputy Solicitor General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Brian L. Schwalb, Attorney General, Caroline S. Van Zile, Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General, and Sonya L. Lebsack, Assistant Attorney General.
Mary B. McCord was on the brief for amicus curiae United States Conference of Mayors in support of appellees.
Matthew J. Platkin, Attorney General, Office of the Attorney General for the State of New Jersey, Jeremy M. Feigenbaum, Solicitor General, Andrea Joy Campbell, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Robert Toone, Chief, Government Bureau, Rob Bonta, Attorney General, Office of the Attorney General for the State of California, Philip J. Weiser, Attorney General, Office of the Attorney General for the State of Colorado, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Anne E. Lopez, Attorney General, Office of the Attorney General for the State of Hawai‘i, Kwame Raoul,
Massachusetts, et al. in support of appellees. Turner H. Smith, Assistant Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, entered an appearance.
Priyanka Gupta Sen was on the brief for amicus curiae Everytown for Gun Safety in support of appellees.
Douglas N. Letter, Timothy C. Hester, and Ciara Wren Malone were on the brief for amici curiae Brady Center to Prevent Gun Violence, et al. in support of appellees.
Before: MILLETT and WALKER, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
Dissenting opinion filed by Circuit Judge WALKER.
I. Factual and Procedural History....................................... 5
II. Standard of Review......................................................... 7
III. Likelihood of Success on the Merits............................... 7
A. Plain Text of the Second Amendment ........................ 8
B. Historical Tradition of Firearm Regulation .............. 12
1. Historical Analogues to the Magazine Cap .......... 14
a. Storage of Gunpowder...................................... 15
b. Time, Place, and Manner Restrictions.............. 16
c. Prohibition-Era Regulations.............................. 17
d. Restrictions on Weapons Particularly Capable of Unprecedented Lethality.................................. 18
2. The Nuanced Approach to History Under Bruen . 25
a. Unprecedented Societal Concern...................... 26
b. Dramatic Technological Change....................... 28
IV. Other Preliminary Injunction Factors ........................... 30
A. Irreparable Harm....................................................... 32
B. Balance of the Equities ............................................. 36
V. Summary and Conclusion............................................. 40
Appendix: Historical Firearms.............................................. 41
PER CURIAM: After the Supreme Court‘s landmark ruling in District of Columbia v. Heller, 554 U.S. 570 (2008), the District of Columbia revised its firearms laws to cap the capacity of firearm magazines at “10 rounds of ammunition.”
Seeing a new opening, the Appellants have charged once more unto the breach. They argue the District‘s magazine cap is unconstitutional under the test set forth in Bruen and moved the district court for a preliminary injunction to prohibit enforcement of the magazine cap. The district court denied the motion. Because the Appellants have failed to make the “clear showing” required for a preliminary injunction on this early and undeveloped record, Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008), we affirm the denial of their motion.
I. Factual and Procedural History
After its “prohibition on the possession of usable handguns in the home” was held to violate the
Each of the appellants, Andrew Hanson, Tyler Yzaguirre, Nathan Chaney, and Eric Klun, keeps one or more firearm magazines capable of holding more than ten rounds of ammunition outside the District of Columbia and each alleges he would use his magazines in the District for lawful purposes, including self-defense, were the magazine cap imposed by the Act not in effect. One appellant, Tyler Yzaguirre, attempted to register a firearm with a 12-round magazine in the District, but the Metropolitan Police Department denied his application because of the magazine cap.
On August 1, 2022 — a little more than a month after Bruen had been decided — the four appellants (hereinafter Hanson) sued the District and the Chief of the D.C. Metropolitan Police Department, seeking a declaratory judgment that the magazine cap violates the
Because Bruen had “rejected how the Courts of Appeals interpreted and applied Heller,” the district court undertook a “renewed analysis under the framework Bruen provides.” Id. at 5. As applied to Hanson‘s suit, the court distilled the Bruen test into two questions: First, “whether the
The district court held ELCMs are “arms” within the meaning of the
II. Standard of Review
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. To get a preliminary injunction the movant must show: (1) “he is likely to succeed on the merits,” (2) “he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the balance of equities tips in his favor,” and (4) issuing “an injunction is in the public interest.” Id. at 20. We review the district court‘s decision whether “to grant the Plaintiffs’ request for a preliminary injunction for abuse of discretion, its legal conclusions de novo, and its findings of fact for clear error.” Huisha-Huisha v. Mayorkas, 27 F.4th 718, 726 (D.C. Cir. 2022).
III. Likelihood of Success on the Merits
To assess the merits of Hanson‘s request for a preliminary injunction,2 we must determine whether the District‘s maga-zine cap allowing ten but not seventeen rounds likely violates Hanson‘s
A. Plain Text of the Second Amendment
Under governing precedent, Bruen step one encompasses two more precise questions: Do ELCMs “constitute bearable arms,” Heller, 554 U.S. at 582, and, if so, are ELCMs “in ‘common use‘” for a lawful purpose, such as self-defense?3 Bruen,
597 U.S. at 47 (quoting Heller, 554 U.S. at 627). On the current record, we think the answer to both questions is likely, as Hanson maintains, to be in the affirmative.
As to the first question, Hanson is likely to succeed in showing that ELCMs are “Arms” within the meaning of the
Next, Hanson is likely to succeed in showing that ELCMs are “in common use” for self-defense, see Heller, 554 U.S. at 627, a deceptively simple question. To start, it demands we answer the antecedent question: What is the relevant geographic area, the District of Columbia, the District-Maryland-Virginia Region, or the entire United States? We think the relevant area is the United States because the source of the right is the Constitution of the United States. It would be anomalous for the protection offered by the
What, then, does “common use” mean? We agree with the District that the answer
The district court erred, however, in reasoning (as the District now argues) that ELCMs are outside the scope of the
The Supreme Court in Heller did not hold, however, that
The District argues ELCMs are not in common use for self-defense because they are rarely used to fire more than a couple rounds in self-defense. Hanson replies that one need not fire every bullet in an ELCM in order to use it. Because ELCMs are in sufficiently wide circulation and given the disputed facts in the record about the role of ELCMs for self-defense, we will presume for present purposes that ELCMs can be used for self-defense. Accordingly, because Hanson has shown it is likely that ELCMs are “arms” and are in common use for self-defense today, it appears on this record that “the
Hanson would have us stop here, as would our dissenting colleague, arguing that, under Bruen, to find an arm is in common use renders any restriction of that arm unconstitutional. As the District points out, however, Bruen itself precludes
B. Historical Tradition of Firearm Regulation
Is the District‘s magazine cap “relevantly similar” to a tradition of regulating firearms? Id. at 29 (quoting C. Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741, 773 (1993)). Although the Supreme Court has not “provided an exhaustive survey of the features that render regulations relevantly similar under the
analogical reasoning under the
Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not uphold every modern law that remotely resembles an historical analogue, because doing so risks endorsing outliers that our ancestors would never have accepted. On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
Bruen, 597 U.S. at 30 (cleaned up); see also Rahimi, 144 S. Ct. at 1903 (emphasizing the error of requiring a “twin” instead of an “analogue“).
Even with this guidance from Bruen, there is considerable uncertainty as to the degree of generality at which a court might properly find a relevantly similar historical analogue. At the pinnacle of abstraction, an historical analogue could be representative of “an unbroken tradition of regulating weapons to [protect communities].” Bevis, 85 F.4th at 1200. Conversely, one could read the history to find “no American tradition of limiting ammunition capacity.” Duncan v. Bonta, 695 F. Supp. 3d 1206, 1214 (S.D. Cal. 2023). We think these levels of generality and specificity exemplify, respectively, just the “regulatory blank check” and the “regulatory straightjacket” against which Bruen warns. 597 U.S. at 30; see id. (at a high enough level of generality, “everything is similar in infinite ways to everything else” (cleaned up)). We think the appropriate level of generalization is one that aligns the regulation in question with the “how” and “why” of the historical
1. Historical Analogues to the Magazine Cap
With this understanding in mind, we turn now to whether, on this preliminary record, the District has identified a “relevantly similar” historical analogue for its magazine cap. Bruen, 597 U.S. at 8. To do so, the District must identify an historical tradition of regulation that burdens the right to armed self-defense in a manner similar to the burden imposed by the magazine cap (the “how“) and does so for a similar reason (the “why“). As explained in greater detail below, we apply the “nuanced approach” under Bruen to this inquiry.
Here, our inquiry turns upon whether the District can identify an historical regulation that restricts possession of an arm based on a justification similar to that for the magazine cap, namely, to respond to “the growing use of [ELCMs] to facilitate crime and, specifically, to perpetrate mass shootings.” Br. of Appellee 46.
The District and the amici States proffer several candidates for historical analogues of the magazine cap: laws regulating the storage of gunpowder and ammunition; time, place, and manner restrictions on when arms may be carried or firearms discharged; Prohibition-era regulations of removable magazines and their capacity; and restrictions on dangerous and un-usual weapons, including weapons considered particularly dangerous or susceptible to unprecedented lethality.
a. Storage of Gunpowder
The District and the amici States advance various restrictions on the storage of gunpowder in the Founding era as a purportedly relevant historical tradition. A modern detachable magazine is similar to a colonial or Founding-era cache of gunpowder only insofar as it acts as a limit on the firepower available to a single household. Those regulations are not “relevantly similar” because they were purely fire prevention measures that affected firearm capacity only incidentally, if at all.5 The suggestion that they limited the
b. Time, Place, and Manner Restrictions
We also agree with Hanson that the various time, place, and manner restrictions identified by the District and the amici States fail to identify a “relevantly similar” analogue. They entail neither a
Take trap or spring guns: The District argues the tradition of banning the setting of guns as a trap indicates a tradition of regulating “unacceptable levels [of] risk of harm to innocent bystanders.” This analogy is too generalized and “comes too close to the means/end scrutiny that Bruen rejected.” Bevis, 85 F.4th at 1200. In any event, the burden imposed by trap guns does not align with the burden imposed by the District‘s magazine cap. “The liability for spring guns and mantraps arises from the fact that the defendant . . . expected the trespasser and prepared an injury that is no more justified than if he had held the gun and fired it.” United Zinc & Chem. Co. v. Britt, 258 U.S. 268, 275 (1922). In other words, restrictions on setting trap guns are justified because they target tortious activity that lies outside the realm of lawful self-defense.
Nor do prohibitions on concealed carry constitute a “relevantly similar” tradition; they lack a justification like the one animating the District‘s magazine cap. A prohibition on carrying a concealed weapon does nothing to limit the lethality of the weapon.
Laws that prohibit discharging a firearm within a city or after dark fare no better. See, e.g.,
For these reasons, on the abbreviated record before us, we cannot say the District has carried its burden of demonstrating that time, place, and manner restrictions on the use of firearms are “relevantly similar” historical analogues to the District‘s magazine cap.
c. Prohibition-Era Regulations
The district court held the magazine cap was consistent with an historical tradition of regulating magazine capacity based upon Prohibition-era bans and regulations. 671 F. Supp. 3d at 21-25. The comparison is somewhat helpful in documenting a history of limiting magazine capacity, at least when combined with rapid-firing capabilities. The district court identified bans “adopted by nearly half of all states.” Id. at 21. Some of those states also limited magazine capacity to even fewer than 10 rounds — including two that limited capacity to a single round. See, e.g., 1927 Mass. Acts 413, 413-14. But, keeping in mind the preliminary nature of this decision, those regulations alone may not suffice as a relevant analogue. Many of those laws did not regulate magazine capacity itself; rather, they addressed the combination of ELCMs and automatic fir-ing — effectively, and often explicitly, directed at machine guns.6
d. Restrictions on Weapons Particularly Capable of Unprecedented Lethality
Finally, the District and its amici argue that historical restrictions on particularly dangerous weapons and on the related category of weapons particularly capable of unprecedented lethality constitute a relevantly similar tradition. Those laws are commensurate with the District‘s justification of its magazine cap to counter “the growing use of [ELCMs] to facilitate crime and, specifically, to perpetrate mass shootings.” Therefore, on the limited record before us, we agree with the District that it has identified a relevant historical analogue and Hanson is not likely to succeed on the merits of his claim.
The District advances as an example the history of restrictions on Bowie knives or similar blades, and to a lesser extent pocket pistols. Together with the amici States, the District recounts that, in response to rising murder rates and an outpouring of public concern, “nearly every state in the Union restricted Bowie (or similar long-bladed) knives in some manner, whether by outlawing their possession, carry, sale, enhancing criminal penalties, or taxing their ownership.” Br. of Appellee 38.
Most of those laws merely list Bowie knives by name in the course of prohibiting the concealed carrying of dangerous weapons generally, and therefore are not indicative of a “relevantly similar” tradition. See, e.g., Acts of the General Assembly of Virginia, Passed at the Session of 1838, ch. 101, at 76 (“It is against the law to habitually or generally keep or carry about his person any pistol, dirk, bowie knife, or any other weapon of the like kind . . . hidden or concealed from common observation“). A handful, however, did ban the carrying, rather than only the concealment, of Bowie knives with no or narrow exceptions. See 1881 Ark. Acts 191, An Act to Preserve the Public Peace and Prevent Crime, ch. xcvi, § 1 (“That any person who shall wear or carry, in any manner whatever, as a weapon, any dirk or bowie knife, or a sword, or a spear in a cane, brass or metal knucks, razor, or any pistol of any kind whatever, except such pistols as are used in the army or navy of the United States, shall be guilty of a misdemeanor“); 1871 Tex. Laws 25 § 1(“[A]ny person carrying on or about his person, saddle, or in his saddle bags, any . . . bowie-knife . . . unless he had reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing . . . misdemeanor“); 1889 Ariz. Sess. Laws 16, An Act Defining And Punishing Certain Offenses Against The Public Peace, §§ 1-2 (“If any person . . . shall carry on or about his person . . . any bowie knife . . . he shall . . . forfeit to the County in which his is convicted, the weapon or weapons so carried,” but providing a limited exception for self-defense
Contemporaneous court decisions also upheld laws targeting Bowie knives against challenges based upon the
They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons . . . could not be employed advantageously in the common defence of the citizens. The right to keep and bear them is not, therefore, secured by the constitution.
As the Supreme Court of Texas put it in Cockrum v. State, 24 Tex. 394, 402-03 (1859):
The bowie-knife differs from [guns or swords] in its device and design; it is the instrument of almost certain death. He who carries such a weapon, for lawful defense, as he may, makes himself more dangerous to the rights of others, considering the frailties of human nature, than if he carried a less dangerous weapon. Now, is the legislature powerless to protect the rights of others thus the more endangered, by superinducing caution against yielding to such frailties? May the state not say, through its law, to the citizen, “this right which you exercise, is very liable to be dangerous to the rights of others, you must school your mind to forbear the abuse of your right, by yielding to sudden passion;
secure this necessary schooling of your mind, an increased penalty must be affixed to the abuse of this right, so dangerous to others.
We emphasize that our identification of a relevant historical tradition is based upon the regulation of weapons that are particularly capable of unprecedented lethality and not, as the dissent would have it, upon the regulation of Bowie knives specifically. Nor is our conclusion based upon statutes the dissent characterizes as “not only too little [but also] too late.” Dissent at 46.7
There are more people in the underworld today armed with deadly weapons, in fact, twice as many, as there are in the Army and the Navy of the United States combined. In other words, roughly speaking, there are at least 500,000 of these people who are warring against society and who are carrying about with them or have available at hand, weapons of the most deadly character.
National Firearms Act: Hearing(s) on H.R. 9066 Before the Comm. on Ways and Means, 73rd Cong. 45 (1934) (cleaned up); accord Andrews v. State, 50 Tenn. 165, 189 (1871) (“The law allows ample means of self-defense, without the use of the weapons which we have held may be rightfully proscribed by this statute. The object being to banish these weapons from the community by an absolute prohibition for the prevention of crime, no man‘s particular safety, if such case could exist, ought to be allowed to defeat this end.”); State v. Reid, 1 Ala. 612, 617 (1840) (“[A] law which is intended merely to promote personal security, and to put down lawless aggression and violence, and to that end inhibits the wearing of certain weapons, in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others, does not come in collision with the Constitution.”); see also Staples v. United States, 511 U.S. 600, 611–12 (1994) (“[W]e might surely classify certain categories of guns — no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to regulation — as items the ownership of which would have the same quasi-suspect character we attributed to owning hand grenades.”); Ocean State Tactical, 95 F.4th at 49 (“[O]ur nation‘s historical tradition recognizes the need to protect against the greater dangers posed by some weapons (as compared to, for example, handguns) as a sufficient justification for firearm regulation”).
Although these laws may target different crimes than does the magazine cap,
To summarize, we hold that, at this interlocutory juncture, the District has met its burden to show its magazine cap is “consistent with the Nation‘s historical tradition of firearm regulation,” Bruen, 597 U.S. at 24. Again, “the [magazine cap] must comport with the principles underlying the
2. The Nuanced Approach to History Under Bruen
Nevertheless, Hanson claims no historical tradition, including this one, can be relevant because weapons capable of holding or shooting more than ten rounds without reloading have existed since the Founding (true) and there is no historical tradition either of prohibiting them or of regulating the number of rounds a gun could hold (true). Therefore, he argues, the District’s magazine cap is unconstitutional. We agree there is no narrowly described tradition of banning weapons capable of holding or shooting more than ten rounds without reloading or, more generally, of regulating the number of rounds a gun may hold. The lack of such a tradition is to be expected, however, because firearms did not have the capacity to occasion a societal concern with mass shootings or other widespread homicidal criminality until dramatic technological changes vastly increased their capacity and the rapidity of firing; there simply is no relevantly similar historical analogue to a modern, semiautomatic handgun equipped with an ELCM. Accord Friedman v. City of Highland Park, Ill., 784 F.3d 406, 410 (7th Cir. 2015) (“Most guns available [in 1791] could not fire more than one shot without being reloaded; revolvers with rotating cylinders weren’t widely available until the early 19th century. Semiautomatic guns and large-capacity magazines are more recent developments”).
Again, Rahimi makes clear that “the
a. Unprecedented Societal Concern
Large capacity magazines have given rise to an unprecedented societal concern: mass shootings. As the First Circuit has observed, there is “no direct precedent for the contemporary and growing societal concern that [ELCMs] have become the preferred tool for murderous individuals intent on killing as many people as possible, as quickly as possible.” Ocean State Tactical 95 F.4th at 44. This comes as no surprise, because mass shootings themselves are a relatively recent phenomenon: “The first known mass shooting resulting in ten or more deaths did not occur in this country until 1949.” Id. (cleaned up).
Mass shootings have become ever more common since then.9 A Congressional Research Service report notes the steady increase in the frequency of mass shootings, from an average of 1.1 per year during the 1970s, to an average of 4.5 per year from 2010 through 2013, Krouse & Richardson, above, at 14, and “more than 600 . . . each year between 2020 and 2023,” according to data published by Gun Violence Archive and cited in the Surgeon General’s Advisory, above, at 11. “Despite accounting for a relatively small number of firearm deaths, mass shooting incidents cause outsized collective trauma on society and have a strong negative effect on the public’s perception of safety.” Id. “Mass shootings that involve a firearm with a large-capacity magazine result in significantly more injuries and deaths than shootings that do not involve such magazines.” Id. at 30 (citing Koper, 19 Crim. & Pub. Pol’y at 152–53). There can be little doubt that mass shootings are an unprecedented societal concern.
b. Dramatic Technological Change
A nuanced approach is also appropriate for the analysis of historical analogues to the District’s magazine cap because large-capacity, detachable magazines for semiautomatic handguns are a relatively modern
Compared to the historical analogues Hanson offers, modern firearms equipped with ELCMs do not have the propensity to jam or misfire that plagued many historical weapons. ELCMs also have significantly larger capacities and can fire multiple rounds in a shorter time. Indeed, a handgun with an ELCM can fire more than 10 rounds in a few seconds. The Glock 17 handgun, for example, can fire 30 rounds in five seconds. Add to that the ease with which one detachable magazine can be swapped for another, and a handgun with an ELCM can fire scores of shots in a matter of seconds.
There were no remotely comparable arms in common use even when the
To bolster his argument to the contrary, Hanson offers several pre-Fourteenth Amendment examples of weapons capable of holding or shooting more than ten rounds without reloading, see Appendix: Historical Firearms, some of which are irrelevant and none of which is persuasive. Most of his examples were never in common use — indeed, some were no more than one-offs or prototypes — and therefore have no bearing on the scope of the
Contrary to Hanson’s assertions, none of his examples is a functional analogue to a modern gun with a detachable ELCM. We do not expect to find an historical tradition of regulating handguns with detachable magazines before ratification of the
* * *
Because ELCMs implicate unprecedented societal concerns and dramatic technological changes, the lack of a “precise match” does not preclude finding at this preliminary juncture an historical tradition “analogous enough to pass constitutional muster.” Therefore, we hold Hanson is not
IV. Other Preliminary Injunction Factors
In addition to establishing a likelihood of success on the merits, a party seeking a preliminary injunction must make a “clear showing” that “it will likely suffer irreparable harm before the district court can resolve the merits of the case,” that “the balance of equities favors preliminary relief,” and that “an injunction is in the public interest.” Singh v. Berger, 56 F.4th 88, 95 (D.C. Cir. 2022); see also Winter, 555 U.S. 7, 32 (“An injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course.” (citing Weinberger v. Romero–Barcelo, 456 U.S. 305, 313 (1982))). Those factors enforce a vital, structural limitation on the role of courts. Unlike the Political Branches, courts are institutionally reactive. Our authority to alter legal rights and obligations generally derives from — rather than precedes — our determination of the merits. Said another way, “[t]he judicial power is inseparably connected with the judicial duty to decide cases and controversies by determining the parties’ legal rights and obligations,” and a “preliminary injunction is remarkable because it imposes a constraint on the enjoined party’s actions in advance of any such determination.” O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 1014 (10th Cir. 2004) (McConnell, J., concurring); see Delaware State Sportsmen’s Ass’n, Inc. v. Delaware Dep’t of Safety & Homeland Sec., 108 F.4th 194, 199 (3d Cir. 2024) (“Because injunctions can irreparably injure parties, courts must use great caution, granting them only in cases where they are clearly indispensable to the ends of justice”) (cleaned up).
On the record before us, Hanson has failed to show that the preliminary injunction factors warrant the “extraordinary remedy” of a preliminary injunction that would alter a 15-year status quo and effectively grant him the same relief he would obtain at the end of trial before that trial even starts.
The dissent analyzes none of the normal preliminary injunction factors, instead invoking the narrow exception for when “the merits of the plaintiffs’ challenge are certain and don’t turn on disputed facts.” Dissent at 53 n.234 (citing Wrenn v. D.C., 864 F.3d 650, 667 (D.C. Cir. 2017)). But that exception does not apply here, even if the dissent is right and we are wrong about the merits. No precedent dictates with certainty that, in confronting the unprecedented criminal and lethal misuse ELCMs have allowed, the District erred in capping magazine capacity at 10 rather than 17. Appellants, after all, do not argue in this motion that the
Instead, we assess all the preliminary injunction factors to determine whether we should act despite our uncertainty on an undeveloped record and amid factual disputes, rather than deciding before trial simply because we believe we must be right. After all, a preliminary injunction “is not a shortcut to the merits.” Delaware State Sportsmen’s Assn, 108 F.4th at 197.
A. Irreparable Harm
To begin, we note that irreparable harm, even when demonstrated, may be insufficient on its own to warrant a preliminary injunction. “The award of an
Nor does the alleged deprivation of a constitutional right constitute irreparable harm. Even in the sensitive areas of freedom of speech and religion, where the risk of chilling protected conduct is especially high, we do not “axiomatically” find that a plaintiff will suffer irreparable harm simply because it alleges a violation of its rights. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 302 (D.C. Cir. 2006). Rather, a plaintiff must show why the court will be unable to grant meaningful relief following trial. Thus, far from treating the
Hanson has not come forward with a factual record showing that he will be irreparably harmed if he is required to wait until the court hears his case before obtaining larger-capacity magazines for his firearms. “Irreparable harm,” in this context, refers to harm within a specific timeframe. That is, Hanson must demonstrate injury that is sufficiently certain, persuasively demonstrated, and so clearly irremediable that it warrants a court reaching out to alter the status quo before the merits are resolved. See O Centro Espirita, 389 F.3d at 1013 (“[T]here are cases in which preservation of the status quo may so clearly inflict irreparable harm on the movant, with so little probability of being upheld on the merits, that a preliminary injunction may be appropriate even though it requires a departure from the status quo”).
Hanson rests his entire irreparable harm showing on the argument that the District’s magazine cap burdens his
First, Hanson has not provided any specific explanation of the irreparable harm he faces from having the ability to fire 11, but not 18, rounds without pausing during the pendency of this litigation.12 In fact, each of the appellants owns at least one
Hanson protests that he faces irreparable harm from the District’s magazine cap because it prevents him from “be[ing] prepared for th[e] unthinkable circumstance where [he] might need to use more than [10] rounds.” Oral Arg. Tr. 75:22–23; see id. at 75:22–76:6; see also id. at 72:23–78:1. But Hanson concedes that such circumstances are, at most, “rare” and “unusual.” Id. at. 74:25, 75:6; see id. at 76:17–24. The Supreme Court has held that “simply showing some possibility of irreparable injury” is not sufficient to make the irreparable harm showing needed to obtain preliminary relief. Nken v. Holder, 556 U.S. 418, 434 (2009) (emphasis added; quotations omitted). Yet in Hanson’s own words, he has raised only remote conjecture. See Oral Arg. Tr. 75:22–23, 74:25, 75:6.
Highlighting that point, Hanson himself has explained that, “[i]n most self-defense circumstances, pulling out a weapon and brandishing it will scare off somebody else.” Oral Arg. Tr. 75:9–10. In addition, Hanson’s own evidence in support of a preliminary injunction shows that “the average amount of rounds fired in self-defense is usually less than 10” and “generally only two or three.” J.A. 721 (Decl. of John Murphy); see id. at 1039–1040 (district court noting that a prior study conducted by one of Hanson’s experts “concluded that the average number of shots a civilian fired in a self-defense incident [between 1997 and 2001] was 2.2”). Hanson, in short, has not shown that there will be any “time-sensitive” actual effect on his ability to engage in self-defense while this litigation proceeds. See Del. State Sportsmen’s Ass’n., 108 F.4th at 205 (declining preliminarily to enjoin a similar magazine-size cap when there was “scant evidence” of any “time-sensitive need” for larger magazines than the law allowed).
Second, Hanson himself does not argue that any restriction on magazine capacity would inflict irreparable harm on his
Third, Hanson has evidenced no urgency in obtaining relief in this litigation. He consented to a stay of district court proceedings pending resolution of this appeal while at the same time failing
B. Balance of the Equities
Finally, the balance of equities also weighs against granting a preliminary injunction at this time. A party seeking a preliminary injunction must show that “the balance of equities favors preliminary relief” and that “an injunction is in the public interest.” Singh, 56 F.4th at 95. In analyzing this record, we must carefully balance the equities by weighing the harm to the moving party and the public if there is no injunction against the harm to the government and the public if there is. See League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 12–14 (D.C. Cir. 2016).
On the District’s side of the balance is the governmental interest in enforcing its duly enacted law, and the likelihood of “concrete harm to [the District’s] law enforcement and public safety interests” were we to grant a preliminary injunction. Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers). The District has demonstrated that it will likely suffer irreparable harm if an injunction issues. Even at this preliminary stage, the record contains evidence that the District would experience an influx of ELCMs if this court were to preliminarily enjoin the District’s magazine cap. See J.A. 119. The District notes that over one million ELCMs “flooded into California in the brief [one-week] period after [California’s ELCM cap] was enjoined but before the ruling was stayed by the district court.” District Br. 51 (citing Matthew Green, Gun Groups: More Than a Million High-Capacity Magazines Flooded California During Weeklong Ban Suspension, KQED (Apr. 12, 2019), https://perma.cc/65NQ-Z6D6). Hanson has not offered any evidence that rebuts this claim or that shows the District would not face similar harm were an injunction to issue here.
The District’s harm, moreover, encompasses not only the likely proliferation of ELCMs, but also the uses to which those magazines can be put. The District submitted expert testimony that ELCMs are “extraordinarily lethal” when used in combination with semiautomatic firearms, increasing the number of individuals killed in mass shootings and other criminal activity. J.A. 477; see id. (“Without extended magazines, semiautomatic rifles cause an average of 40 percent more deaths and injuries in mass shootings than regular firearms, and semiautomatic handguns [cause] 11 percent more than regular firearms. But with extended magazines, semiautomatic rifles cause an average of 299 percent more deaths and injuries than regular firearms, and semiautomatic handguns [cause] 184 percent more than regular firearms.”). The District has a particular and unique interest in reducing that lethality “given homeland security issues in the District” as the seat of the federal government and the location of countless sensitive governmental institutions and protected personnel. Br. of Appellee 4 (quoting Committee on Pub. Safety and the Judiciary, D.C. Council, Report on Bill 17-843, at 9 (2008)).
Hanson, for his part, asserts the public’s interest in exercising the
Yet the mere fact that Hanson seeks to enjoin the District’s magazine cap on constitutional grounds does not decide our balance-of-the-equities inquiry. To the contrary, this court must balance the equities of the parties and the public even when a party seeks to restrain the enforcement of an allegedly unconstitutional law. See Singh, 56 F.4th at 107–109; Archdiocese of Wash. v. Washington Metro. Area Transit Auth., 897 F.3d 314, 334–335 (D.C. Cir. 2018). Furthermore, we have stated that the public interest in such cases “rises and falls with the strength of [the moving party’s] showing” on the merits. Archdiocese of Wash., 897 F.3d at 335. While “[t]he public interest favors the protection of constitutional rights,” Hanson would need to establish a likely violation of his constitutional rights to establish that the public interest outweighs the District’s unrebutted showing of substantial harm, a showing he has not made. Id. (explaining the parties’ relative equities might balance differently if the plaintiffs had established a likelihood of success on the merits of their constitutional claim and, in turn, that the public interest favored an injunction).
In addition, Hanson is seeking at this preliminary stage a longstanding-status-quo-altering injunction that effectively gives him the full relief he would receive if he won on the merits. Preliminary injunctions, though, “are generally a ‘stopgap measure’ meant only to ‘preserve the relative positions of the parties’ until trial.” Singh, 56 F.4th at 95 (quoting Sherley v. Sebelius, 689 F.3d 776, 781–782 (D.C. Cir. 2012)). “After all, ‘deciding whether to grant a preliminary injunction is normally to make a choice under conditions of grave uncertainty.’” Id. (quoting O Centro Espirita, 389 F.3d at 1015). Because “a grant of preliminary relief could prove to be mistaken once the merits are finally decided,” courts must be “institutionally wary of granting relief that disrupts, rather than preserves, the status quo, especially when that relief cannot be undone if the nonmovant ultimately wins on the merits.” Id. (quotations omitted). At bottom, that “reluctance to disturb the status quo prior to trial on the merits is an expression of judicial humility.” O Centro Espirita, 389 F.3d at 1015.
Concern about so materially altering the status quo has particular purchase on the record of this case. For 15 years, District law enforcement has operated and been resourced with the magazine cap in place. The District has also shown that an erroneously issued preliminary injunction suspending its law could drastically compromise the District’s ability to enforce its magazine cap far into the future — long beyond the term of the preliminary injunction itself — because of the likelihood that ELCMs will flood into the District during any such injunctive relief. Hanson, in contrast, would suffer from an erroneous preliminary analysis of his claim for a far shorter time while the merits of this case are resolved. Those unequal consequences carry material weight in the equitable preliminary-injunction calculus. Cf. Singh, 56 F.4th at 97 (“The public consequences of employing the extraordinary remedy of injunction necessarily include the risk that the relief requested will cause unusual disruption if granted in error, for example by disturbing the status quo in a way that cannot readily be undone.”) (cleaned up).
Finally, we cannot simply rebalance the equities by limiting injunctive relief to the four appellants in this case. Were this court to direct the issuance of such a preliminary injunction, a follow-on class-action
In sum, the ancient principle primum non nocere — first, do no harm — “counsels against forcing changes before there has been a determination of the parties’ legal rights” and in favor of maintaining the status quo. O Centro Espirita, 389 F.3d at 1012. Hanson has not, on the record before us, shown the type of irreparable harm and favorable balancing of equities and interests that can warrant the exceptional relief of a status quo-altering injunction handing him the same relief he would ordinarily obtain only after prevailing on the merits.
V. Summary and Conclusion
Because Hanson has failed to demonstrate a likelihood of success on the merits or that he has suffered irreparable harm, and because the balance of equities does not weigh in his favor, the order of the district court is
Affirmed.
Appendix: Historical Firearms
Hanson offers a plethora of historical examples to argue that extra-large capacity magazines (ELCMs) are nothing new. For the reasons given below, each of his examples misses the mark.
His first example is a 16-shot wheellock created around 1580. See David B. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 ALB. L. REV. 849, 852 & n.21 (2015) (citing Lewis Winant, Firearms Curiosa 168-70 (Ishi Press Int‘l 2009) (1954)). The wheellock lacks both the rapid-reloading capability and the trigger control of a modern semi-automatic handgun with a detachable magazine, which limited its potential lethality. One wheel lock would ignite a fuse and fire the ten upper charges without stopping and another wheel lock would fire the remaining six lower charges. This gun was “very rare,” however; indeed, it may have been a one-off, artisanal curiosity. Winant, above, at 168-70; see A 16-Shot Wheel Lock, America‘s 1st Freedom (June 2014), https://web.archive.org/web/20140702092902/https:/www.nrapublications.org/index.php/17739/a-16-shot-wheel-lock/ (noting the “highly decorated” and “unique rifle” had “achieved a multi-shot capability that would not be reached again until the American Civil War“).
Hanson also directs us to the “Puckle Gun,” patented in 1718, which he describes as one of “the more successful of the early designs” of multi-shot firearms. But the Puckle Gun never entered commercial production; only two prototypes were made; and they suffered from mechanical problems. Br. of Amici Curiae Brady Center to Prevent Gun Violence et al. (Brady Br.) at 10-11. Even if it had entered commercial production, however, the Puckle Gun still would not be a “relevantly similar” analogue: It was mounted on a tripod and operated by hand crank, making it more akin to a Gatling gun than to a semiautomatic handgun with an ELCM.
Hanson next proffers the Girandoni air rifle, invented in 1779. The Girandoni rifle was never in common use: Only around 1,500 were produced and even fewer made their way to America. Robert J. Spitzer, Understanding Gun Law History after Bruen: Moving Forward by Looking Back, 51 FORDHAM URB. L.J. 57, 76-77 (2023); see also John Plaster, The History of Sniping & Sharpshooting 70 (2008). It remained such a curiosity that, in 1792, one museum proprietor in New York charged visitors six pence to see it discharge a shot. Gardiner Baker, To the Curious, The Weekly Museum (New York, NY), Feb. 11, 1792.
Hanson‘s next example, the Jennings multi-shot flintlock rifle, was beset by “technical challenges.” Ass‘n of N.J. Rifle & Pistol Clubs v. Att‘y Gen. N.J., 974 F.3d 237, 255 (3d Cir. 2020) (Matey, J., dissenting) (cleaned up), cert. granted, judgment vacated sub nom. Ass‘n of N.J. Rifle & Pistol Clubs v. Bruck, 142 S. Ct. 2894 (2022). The rifle has a “complicated mechanism” with a moving hopper and swivel covers that required a hammer to be pulled back for each shot. Corey R. Wardrop, A Close-up Look at the Ellis-Jennings Repeating Flintlock Rifle, THE FIREARM BLOG (July 27, 2017), https://web.archive.org/web/20220402053233/https://www.thefirearmblog.com/blog/2017/07/27/close-look-ellis-jennings-repeating-flintlock-rifle/. Moreover, most of these rifles had a capacity of only four shots, and only 521 were ever made. Id.
Hanson also points to “Pepperbox” pistols, which were capable of firing only “five or six rounds without reloading,” and therefore are not comparable in lethality to a modern ELCM. Brady Br. at 13 (citing Wheelgun Wednesday: A Closer Look at Pepperbox Pistols, THE FIREARM BLOG (Dec. 8, 2021), https://perma.cc/2Z2U-RJ62)) (cleaned up). Pepperbox pistols were
Next is the Colt revolver, introduced in 1836. See Improvement in Fire-Arms, U.S. Patent No. 9430X (issued Feb. 25, 1836). The Colt revolver “was the first widely used multishot weapon,” Jim Rasenberger, Revolver: Sam Colt and the Six-Shooter that Changed America 401 (2020), but the shooter was required to cock the hammer before firing each round; the gun was limited to six shots; it was prone to jamming; and, unlike a handgun with an ELCM, it could not be rapidly reloaded. The six-shooter is not a relevant comparator because the District allows six-shooters. Its magazine cap is set at 10 (plus one in the chamber).
Hanson next points to the Bennet & Haviland Revolving Rifle, which began circulating in 1838, as well as the similar Porter and Hall rifles of the 1850s. There is no evidence that any of these rifles were in common use. John Paul Jarvis, Bennet & Havilland Revolving Rifle: A Link in the Repeating Rifle Chain, GUNS.COM (Apr. 3, 2012 5:44 PM), https://perma.cc/6FLX-AE5G (“experts believe that Bennett & Havilland made fewer than 10 full-scale” rifles); Ian McCollum, RIA: Porter Turret Rifle, FORGOTTEN WEAPONS BLOG (Feb. 7, 2016), https://perma.cc/N5J5-R93H (only “several thousand examples” of the Porter rifle were made); Norm Flayderman, Flayderman‘s Guide to Antique American Firearms and their Values 713 (9th ed. 2007) (noting an unknown quantity were made and the rifle is “[v]ery rare“).
The other antebellum firearms Hanson identifies — the Enouy Ferris wheel revolver, the Jarre harmonica pistol, and pin-fire revolvers — all have similar limitations. None was ever in common use — indeed, the Enouy Ferris wheel revolver may have been a one-off curiosity. Dan Zimmerman, Is the 48-Shot Enouy the Most Unusual Revolver in History?, THE TRUTH ABOUT GUNS (Oct. 18, 2015), https://perma.cc/6FW9-J27J (noting “[t]here are no records of it ever being manufactured or sold commercially“). Those that were capable of firing more than six shots tended to be cumbersome and unwieldy, limiting their potential lethality.
Lewis Winant, Firearms Curiosa 207 (Greenberg 1955) (1954) (depicting the Ferris wheel revolver). Although one version of the Jarre harmonica pistol did have a detachable magazine, it still required the hammer to be cocked before firing each
Hanson‘s next example, the Josselyn belt-fed chain pistol (patented in 1866), was likewise unwieldy and was likely never in common use. As with the Colt revolver, the need to cock the hammer before firing each round limited the rate of fire and therefore the potential lethality of the weapon. Chain Guns—I, FIREARMS HISTORY, TECHNOLOGY & DEVELOPMENT BLOG (July 23, 2014 1:35 AM), https://perma.cc/MT7P-JP5L.
Improvement in Revolving Fire-Arms, U.S. Patent No. 52,248 (issued Jan. 24, 1866).
Hanson also argues the Winchester Repeater rifle of 1866 is analogous to an ELCM. Although it had a magazine capable of firing more than ten rounds without reloading, it required manual manipulation of a lever in between each shot. Ryan Hodges, The 1866 Rifle, TAYLOR‘S & COMPANY (Aug. 26, 2020), https://perma.cc/7STW-8WMS. The magazine was also exposed, which made it susceptible to jamming. Id. For this reason, the rifle lacks the potential lethality of a modern weapon equipped with an ELCM.
WALKER, Circuit Judge, dissenting:
In District of Columbia v. Heller, the Supreme Court held that the government cannot categorically ban an arm in common use for lawful purposes. Magazines holding more than ten rounds of ammunition are arms in common use for lawful purposes. Therefore, the government cannot ban them.
I. Background
In 2003, Dick Heller and five other plaintiffs alleged that the District of Columbia‘s ban on handguns violated their Second Amendment right to “keep and bear Arms.”1 Five years later, the Supreme
A month after Heller‘s victory, he returned to federal court.4 This time, in Heller II, he challenged D.C.‘s felony prohibition on possessing what D.C. calls a “large capacity ammunition feeding device” — defined as “a magazine, belt,
drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition.”5 D.C.‘s ban on these plus-ten magazines is categorical; it extends to every purpose (even self-defense) and to every location (even inside the home).6
Heller lost his second suit before a divided panel of this court. It upheld D.C.‘s ban on plus-ten magazines because the ban was substantially related to an important government interest.7 But this court‘s decision in Heller II was effectively overruled in New York State Rifle & Pistol Association, Inc. v. Bruen.8 There, the Supreme Court reaffirmed its holding in Heller I and repudiated “means-end scrutiny in the Second Amendment context.”9
After Bruen, Andrew Hanson and three other D.C. residents filed this suit. They own handguns, as well as magazines that hold up to 17 rounds of ammunition. Because of D.C.‘s ban on plus-ten magazines, they must store those magazines outside of D.C., away from their homes.
These gun owners sought a permanent injunction and a declaration that D.C.‘s ban is unconstitutional. Simultaneously, they requested a preliminary injunction permitting them to keep their up-to-17-round
The district court found that the gun owners were not likely to succeed on the merits.10 So it denied the preliminary injunction without assessing any other equitable factors.11 The gun owners appealed, requesting a preliminary or permanent injunction.
Because the district court‘s decision depended entirely on a legal conclusion — that the government can categorically ban an arm in common use for lawful purposes — review is de novo.12
II. The Government Cannot Ban Arms in Common Use for Lawful Purposes
The Second Amendment guarantees law-abiding citizens a right against categorical bans of an arm in common use for lawful purposes. What follows is the story of how the Supreme Court came to affirm that right — and then reaffirm it over and over and over again.
A. Text and History
I begin with a much-abbreviated version of the history that informs the Second Amendment.13 My hope here is to provide any readers new to this topic with a prologue to the Supreme Court‘s Second Amendment jurisprudence. Later, I‘ll explain why that jurisprudence holds that the government cannot ban an arm in common use for lawful purposes.
1. The English Bill of Rights and Colonial History (1689-1775)
In the 1660s, Britain‘s Stuart king began to disarm Protestants and other politically disfavored subjects.14 After the Stuarts’ ouster and exile in 1688, King William and Queen Mary assented to a parliamentary declaration that became the
1689 English Bill of Rights.15 It “explicitly protected a right to keep arms for self-defense.”16
“As English subjects,” American “colonists considered themselves to be vested with the same fundamental rights as other
Then, in 1775, the “spark that ignited the American Revolution was struck at Lexington and Concord, when the
British governor dispatched soldiers to seize the local farmers’ arms and powder stores.”20
2. The Second Amendment, State-Constitution Analogues, and the “Palladium of the Liberties of a Republic” (1775-1833)
The American Revolution led to Western Civilization‘s “seminal era of constitution writing.”21 The thirteen states “created the first thirteen constitutions in this country, indeed many of the first constitutions in the world.”22 Almost immediately, four of them guaranteed gun rights.23
By 1787, the nation was debating whether to ratify the United States Constitution, proposed by that summer‘s Philadelphia Convention.24 In that debate, “the fear that the Federal Government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.”25 “In response, the Federalists agreed to include a Bill of Rights, which, of course,
featured the right to bear arms.”26 Its 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.27
In the three decades that followed ratification of the Bill of Rights, nine more states guaranteed gun rights in their constitutions.28 After that, as new states joined the Union, many of their constitutions made similar guarantees.29 They reflected
citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic . . . .”30
3. The Fourteenth Amendment (1868)
Just as guns were often the difference between life and death for “the remote settler” who needed “to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears,”31 guns were often the only defense for African-Americans against night riders and lynch mobs after the Civil War.32 So when states “of the old Confederacy” engaged in “systematic efforts . . . to disarm” recently freed slaves and “many of the over 180,000 African-Americans who served in the Union Army,” Congress passed the Freedmen‘s Bureau Act
of 1866.33 It guaranteed “the constitutional right to bear arms” to all citizens “without respect to race or color.”34
That same year, Congress enacted the Civil Rights Act.35 Its “principal proponents . . . meant to end the disarmament of African-Americans in the South.”36 Then, “to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866,” Congress passed and the states ratified the Fourteenth Amendment.37 Its first section provides:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor
shall any person within its jurisdiction the equal protection of the laws.38
4. Takeaways from the Second Amendment‘s Text and History
D.C. has offered no reason to doubt that throughout all of this history, no federal or state legislature enacted a blanket ban on a gun in common use for lawful purposes. Yes, there could
be limits on who possesses a gun.39 Yes, there could be limits on where and how you carry a gun.40 And yes, there could be limits on owning and carrying unusual guns.41 But D.C. has failed to identify any categorical ban on a gun in common use for lawful purposes in the first century of our nation‘s history.42
B. Supreme Court Precedents
The Supreme Court‘s first notable application of the Second Amendment did not occur until 1939 — when it distinguished unusual weapons from those in common use.43 And its first extensive consideration of the Amendment‘s meaning did not come until 2008 — when it relied on this distinction to hold that the government cannot completely ban an arm in common use for lawful purposes. In the 16 years since then, the Court has invariably reaffirmed that principle.
1. United States v. Miller (1939)
In 1934, Congress enacted the
The
The Supreme Court upheld the
Court held that the Second Amendment does not protect “the right to keep and bear such an instrument.”51
In explaining why, Miller referred to Founding-Era history. It observed that men called to serve in the militia “were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”52 Therefore, in the Court‘s view, the Second Amendment did not protect the weapon at issue in Miller, which was unusual at the time of the bank robbers’ arrest.53
The Supreme Court has since “read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,”54 explaining (this time without the multiple negatives) that “Miller said . . . the sorts of weapons protected were those in common use at the time.”55
2. Staples v. United States (1994)
Five and a half decades after Miller, the Supreme Court considered another case about the
Staples reversed a conviction under the
Consistent with Miller, Staples contrasted guns like a semiautomatic AR-15 rifle that “traditionally have been widely accepted as lawful possessions” with “certain categories” of unusual guns like fully automatic “machineguns, sawed-off shotguns, and artillery pieces.”60 So even though Staples was not a constitutional decision, it confirmed a principle that would matter in future cases about the Second Amendment: Arms in common use for lawful purposes are legally distinct from unusual, “quasi-suspect” arms.61
3. District of Columbia v. Heller (2008)
D.C. has long been an anti-gun outlier in a nation where, as Staples said, guns are
possession.”63 That ban was challenged by Dick Heller in a suit decided by the Supreme Court in 2008.64
During the litigation in Heller, D.C. made a series of arguments designed to render the Second Amendment a dead letter. For starters, D.C. argued that the Second Amendment does not “entitle[] individuals to have guns for their own private purposes.”65 Next, D.C. argued that there‘s no right to handguns when “the District allows residents to keep rifles and shotguns.”66 Finally, D.C. argued that its “predictive judgment about how best to reduce gun violence was reasonable” and “entitled to substantial deference.”67
In District of Columbia v. Heller, the Supreme Court rejected every one of D.C.‘s arguments.68 In so doing, it made four increasingly specific holdings. Each was dependent on the holding before it.
Heller‘s first holding was its broadest: As a general matter, the Second Amendment guarantees an “individual right” to possess and carry “arms,” though that right is “not unlimited.”69
Heller’s second holding concerned how to discover the Second Amendment’s limits: Courts must rely “on the historical understanding of the Amendment to demark the limits on the exercise of that right.”70 This historical approach led Heller to distinguish D.C.’s law from “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.”71 Heller thus “exemplifies” a “straightforward historical inquiry.”72
In adopting this historical approach, “Heller decline[d] to engage in means-end scrutiny generally” and “specifically ruled out the intermediate-scrutiny test.”73 The Court explained:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.74
Heller then applied that “straightforward historical inquiry”75 to reach its third holding: Whereas the United States has a “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’ there is no historical tradition of banning arms ‘in common use.’”76 So arms “in common use” are “protected,” and “a complete prohibition of their use is invalid.”77
Heller’s third holding confirmed the same critical distinction on which Miller had relied in 1939 — the distinction between “unusual” weapons versus weapons “in common use” for lawful purposes.78 That distinction “dovetailed with the historical practice of the militia bringing ‘the sorts of lawful weapons that they possessed at home to militia duty’; i.e., weapons that were ‘in common use at the time.’”79
From there, Heller reached its fourth and final holding: Because handguns are in common use today, law-abiding citizens have a Second Amendment right to keep them in their homes for self-defense.80 It didn’t matter whether D.C. residents could already keep other guns — it only mattered that handguns are in common use.81 Nor did it matter whether handguns were once unusual — it only mattered that they are common now.82
Heller explained time and again that this fourth holding (a right to handguns) depended on its third holding (a right to possess arms “in common use” for lawful purposes):
- “It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.”83
- “The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.”84
- “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”85
- “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family would fail constitutional muster.”86
In other words, Heller did not simply hold that the Second Amendment is an individual right, then add a lot of dicta, and then finally hold that D.C. cannot ban handguns. What came between Heller’s first and last holdings is binding on lower courts, because each of Heller’s four increasingly specific holdings is dependent on the holding before it:
- There is, in general, an individual right to keep and bear arms;
- Exceptions to that right depend on the history and tradition of gun regulations;
- There is no history and tradition of banning arms in common use for lawful purposes; and
- Handguns cannot be categorically banned precisely because they are in common use for lawful purposes.
Of course, Heller did not ignore “the problem of handgun violence in this country.”87 It took “seriously the concerns” of those “who believe that prohibition of handgun ownership is a solution.”88 But the Court was bound by the Second Amendment’s command that the government may not ban arms in common use for lawful purposes — whether good policy or not. As this court later recognized: “Heller I closed off the possibility” that we could “find some benefits weighty enough to justify other effective bans on the right to keep common arms.”89
4. McDonald v. City of Chicago (2010)
Two years after Heller, in McDonald v. City of Chicago, the Supreme Court confirmed that because of the Fourteenth Amendment, “the Second Amendment right is fully applicable to the States.”90 McDonald explained that “the right to keep and bear arms is fundamental to our scheme of ordered liberty.”91 It is “‘deeply rooted in this Nation’s history and tradition.’”92
At the same time, “McDonald underscore[d] that text, history, and tradition guide analysis of gun laws and regulations.”93 It confirmed that exceptions to the general right to keep and bear arms depend on “longstanding regulatory measures,” not “judicial interest balancing,”
In McDonald, the Supreme Court had a chance to back away from Heller’s holdings. Instead, it doubled down.
5. “Defiance” of Heller (2010-2022)
With Heller and McDonald, the Supreme Court left little doubt about the validity of severe gun-control regimes. But revanchist legislatures responded with “defiance.”96
D.C. led the way. After its ban on keeping handguns was held unconstitutional, it followed “with a ban on carrying.”97 “And when that was struck down,” D.C. confined “carrying a handgun in public to those with a special need for self-defense.”98 D.C. then lost in court again, this time after arguing that the Second Amendment’s “core does not cover public carrying at all.”99
D.C.’s unveiled contempt for Heller and McDonald was not unique. For example, the Massachusetts Supreme Judicial Court held that the Second Amendment does not protect stun guns100 — a decision that the unanimous Supreme Court summarily reversed in Caetano v. Massachusetts.101 With a terse, two-page opinion, the Court dispensed with the state court’s thin reasoning as patently “inconsistent” with the “clear” holdings of Heller and McDonald.102
Caetano put lower courts on notice: Exceptions to gun rights under the Second Amendment depend on a historical tradition of analogous regulations, and there is no historical tradition of banning arms in common use for lawful purposes.
Many state courts did not get the memo. Nor did some federal circuit courts.
In particular, several federal circuits devised “a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.”103
Meanwhile, a number of Supreme Court justices raised the alarm:
- Justice Thomas (joined by Justice Scalia) lamented that “[d]espite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts . . . have failed to protect it.”106
- Justice Thomas (again joined by Justice Scalia) criticized lower courts’ “crabbed reading of Heller” and “noncompliance with our Second Amendment precedents.”107
- Justice Thomas said that “lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights.”108
- Justice Alito (joined by Justice Thomas) criticized lower court “reasoning” that “defies our decision in Heller.”109
- Justice Alito (joined by Justice Gorsuch) expressed “concern” about “the way Heller has been treated in the lower courts.”110
- Justice Kavanaugh shared a similar “concern that some federal and state courts may not be properly applying Heller and McDonald.”111
- Justice Thomas (joined by Justice Kavanaugh) again accused the lower courts of “blatant defiance,” explaining that means-end scrutiny was “entirely inconsistent with Heller” and “appear[ed] to be entirely made up.”112
These five justices did not chastise lower courts only for ignoring Heller’s holding that history and tradition alone determine exceptions to the Second Amendment’s textual baseline. They also chided lower courts for ignoring Heller’s more specific
Consider, for example, Friedman v. City of Highland Park.114 The Court declined to take up a challenge to a city ban on “many of the most commonly owned” semiautomatic rifles and the plus-ten magazines commonly used with them.115 Justice Thomas dissented from the denial of certiorari, joined by Justice Scalia. He explained that Heller and McDonald do not allow “categorical bans on firearms that millions of Americans commonly own for lawful purposes,”116 repeatedly underscoring Heller’s third holding about arms in common use:
- “Heller asks whether the law bans types of firearms commonly used for a lawful purpose — regardless of whether alternatives exist.”117
- “Heller draws a distinction between such firearms [in common use for a lawful purpose] and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns.”118
- Heller and McDonald “excluded from [Second Amendment] protection only those weapons not typically possessed by law-abiding citizens for lawful purposes.”119
- “Roughly 5 million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”120
Consider also Caetano, the stun-gun case in which the unanimous Supreme Court summarily reversed the Massachusetts Supreme Judicial Court. There, Justice Alito (joined by Justice Thomas) wrote separately to emphasize Heller’s third holding about arms in common use:
- “[T]he pertinent Second Amendment inquiry is whether [the arms] are commonly possessed by law-abiding citizens for lawful purposes today.”121
- “A weapon may not be banned unless it is both dangerous and unusual.”122
- “[T]he relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.”123
- “While less popular than handguns, stun guns are widely owned and accepted
as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.”124
Supreme Court justices were not alone in objecting to lower courts’ “eviscerat[ion]” of Heller and McDonald.125 “A chorus” of district judges and dissenting circuit judges echoed them.126 One was then-Judge Kavanaugh.
Dissenting in Heller II, Judge Kavanaugh urged this court to apply Heller I’s second and third holdings. He said, “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”127 And he added, “In Heller, the Supreme Court held that handguns . . . are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.”128
6. New York State Rifle & Pistol Association, Inc. v. Bruen (2022)
In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court vindicated the chorus of circuit-court dissenters, repudiated “means-end” scrutiny (again), and (again) reaffirmed Heller’s second holding that “when the Second Amendment’s plain text covers an individual’s conduct,” exceptions to that right must be “consistent with this Nation’s historical tradition of firearm regulation.”129
At the same time, Bruen gave lower courts additional guidance about how to apply Heller’s history-and-tradition test. As in other constitutional contexts, the burden is on the government to justify regulations that are “presumptively protect[ed].”130
Bruen applied that history-and-tradition test to a New York law that conditioned licenses to carry handguns “on a citizen’s showing of” a “special need for self-defense.”132 Bruen needed to conduct its own historical inquiry “because . . . Bruen did not involve an arms ban” and so “could not be resolved by applying Heller’s rule” that the government cannot ban arms in common use for lawful purposes.133 The Court considered the history and held that New York’s law was not “consistent with the Second Amendment’s text and historical understanding.”134
In addition, Bruen reaffirmed Heller’s third holding — that, in view of our nation’s history and tradition, the government cannot categorically ban a class of arms in common use for lawful purposes: “[Heller] found it ‘fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons’ that the Second Amendment protects the possession and use of weapons that are ‘in common use at the time.’”135 Heller’s “historical analysis sufficed to show that the Second Amendment did not countenance a complete prohibition on the use of the most popular weapon chosen by Americans for self-defense in the home.”136
So in summary, Bruen:
- Confirmed Heller’s second holding, which established the history-and-tradition test;
- Described how to apply Heller’s history-and-tradition test to types of gun regulations that the Supreme Court has not already considered;
- Held that there is no historical tradition analogous to New York’s public-carry regulation — which was a time-place-manner regulation, not a categorical ban controlled by Heller’s third holding that the government cannot ban arms “in common use” for lawful purposes; and
- Reaffirmed that third holding of Heller.
7. United States v. Rahimi (2024)
Just two years after Bruen, the Supreme Court returned to the Second Amendment in United States v. Rahimi.137 It reviewed a federal statute that “prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he ‘represents a credible threat to the physical safety of an intimate partner,’ or a child of the partner or individual.”138
In Rahimi, the government proposed two traditional types of laws to show that “the new law is relevantly similar to laws that our tradition is understood to permit.”139 Because those old laws (1) imposed
In so doing, Rahimi “carefully buil[t] on Heller, McDonald, and Bruen.”141 It reiterated the history-and-tradition test already well established under Heller, McDonald, and Bruen, while also reaffirming their distinction between arms in common use versus “‘dangerous and unusual weapons.’”142 In addition, its multiple opinions elaborated on the standard for using analogical reasoning to determine whether a modern law falls within a historical tradition.
8. Takeaways from the Supreme Court’s Precedents
Where do all these cases leave us? For starters, Heller’s four holdings remain undisturbed: There is an individual (though not unlimited) right to possess and carry arms. Exceptions to that right depend on history and tradition. There is no history and tradition of banning arms in common use for lawful purposes. D.C. cannot categorically ban handguns because they are in common use.
To Heller’s final and most specific holding, we can add the most specific holdings of McDonald, Bruen, and Rahimi. Like the federal government and federal enclaves, states too cannot categorically ban handguns because they are in common use for lawful purposes — McDonald.143 The government also cannot impose an unusually restrictive licensing regime like New York’s because it is inconsistent with the nation’s historical tradition — Bruen.144 In contrast, the government can temporarily disarm people who present a credible threat of violence because that type of law is consistent with the nation’s historical tradition — Rahimi.145
None of those holdings should cause unusual “difficulty” for “judges on the ground.”146 For example, in cases about banning arms in common use, Heller and its progeny require no “mad scramble for historical records”147 because they have “already done the work and provided the test that [we] must apply.”148 And when we fail to apply their rule, “the blame” lies “with us, not with them.”149
As for gun laws other than complete bans on arms in common use for lawful purposes (Heller), unusually restrictive licensing regimes (Bruen), and temporary
First, “[w]hy and how the regulation burdens the right are central to this inquiry.”152 The government must identify traditional laws that had a similar justification and imposed a similar burden when compared to the challenged modern law. “[I]f earlier generations addressed the [same] societal problem, but did so through materially different means, that . . . could be evidence that a modern regulation is unconstitutional.”153 (Spoiler alert: This is a problem for the majority’s two analogues.)
Second, to establish a historical tradition, the government needs analogues that represent the “collective understanding of Americans.”154 So outliers don’t count. That’s why Bruen dismissed “three colonial regulations” and “a few late-19th-century outlier jurisdictions.”155 And it’s why Heller “would not stake” its “interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence.”156 (Spoiler alert: This is a problem for the majority’s state-law analogue.)
Third, “when it comes to interpreting the Constitution, not all history is created equal.”157 The “Second Amendment ‘codified a pre-existing right’ belonging to the American people, one that carries the same ‘scope’ today that it was ‘understood to have when the people adopted’ it.”158 So its scope “is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.”159
That means “the history that matters most is the history surrounding the ratification of the text.”160 For the Second Amendment, the Founding Era matters more than the half-century that followed it, which matters more than the late-nineteenth and early-twentieth centuries, which matter more than the late-twentieth and twenty-first centuries, which do not matter much at all. (Spoiler alert: This too is a problem for the majority.)
To be sure, “post-ratification history” can “be important,” especially when it’s close in time to the Founding, the constitutional text is vague, the Founding-Era history is inconclusive, the post-Founding tradition is well-established, and judicial
Heller is, as ever, instructive. There, the Founding-Era history mattered the most. The Court said that if discussions “took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.”164 That’s why “Heller’s interest in mid- to late-19th-century commentary was secondary.”165 Heller’s “19th-century evidence was treated as
mere confirmation of what the Court thought had already been established,”166 and it refused to give that “postenactment history more weight than it can rightly bear.”167
So to sum up the history-and-tradition test, a historical analogue need not be a “dead ringer” or “historical twin.”168 But analogues are strongest when (1) they burden gun rights for a similar reason and in a similar way as the challenged modern law; and (2) they represent the nation‘s collective understanding; and (3) they were enacted in an instructive historical period, preferably around the Second Amendment‘s ratification in 1791. In Rahimi, the government won when it hit that trifecta. In Heller, McDonald, and Bruen, the government lost when it could not.
III. D.C.‘s Ban on Plus-Ten Magazines Is Unconstitutional
D.C.‘s ban on commonly used plus-ten magazines conflicts with Heller‘s holding that the government cannot ban an arm in common use for lawful purposes. That alone decides this case.
In addition, D.C. has failed to show that its ban is consistent with the nation‘s historical tradition — even assuming Heller left it an open question. That too is a sufficient reason to hold that D.C.‘s ban is unconstitutional.169
The majority presumes that plus-ten magazines are arms in common use by law-abiding citizens for the lawful purpose of self-defense.170 On that, we agree.171
That should not be a close question. Americans have in their hands and homes an estimated 100 million plus-ten magazines.172 They likely account for about half of all magazines in circulation,173 and nearly half of gun owners have owned them.174 These magazines “come standard” with many of the nation‘s most popular firearms, including “[m]illions of semiautomatic
I could say more.176 But if plus-ten magazines are (1) half of America‘s magazines, (2) owned by half of America‘s gun owners, and (3) often standard on Americans’ preferred weapon for self-defense, what else needs to be said? That is (more than) enough to show common use for lawful purposes.
In the context of a complete ban on a category of arms, “that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”177 Heller held that because handguns are “in common use,” D.C.‘s “complete prohibition of their use is invalid.”178 For the same reason, D.C.‘s ban on plus-ten magazines is unconstitutional.179
In other words:
Major Premise (explained at length above):
Heller held that the government cannot ban arms in common use for lawful purposes.
Minor Premise (undisputed by the majority):
Plus-ten magazines are arms in common use for lawful purposes.
Conclusion:
The government cannot ban plus-ten magazines.180
To repeat, I read Heller and its progeny to have already held that the government cannot ban an arm in common use for lawful purposes. But I also respect the good faith with which my fellow panel members have concluded otherwise. In their view, the validity of every ban on arms in common use is its own open question, so D.C. deserves the chance to show its ban “is consistent with this Nation‘s historical tradition of firearm regulation.”181
Even if that is in fact an open question, D.C. has identified no “historical tradition” of any ban on an arm in common use for lawful purposes. Neither has the majority. Instead, the majority invents a regulatory category — “restrictions on . . . weapons particularly capable of unprecedented lethality.”182 Then it says such restrictions are consistent with two historical analogues.183
I agree with the majority that the history-and-tradition test allows for historical analogues less specific than, say, bans on plus-ten magazines. After all, “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.”184 But the history-and-tradition test demands a level of generality more specific than the majority‘s preferred category of “restrictions on weapons particularly capable of unprecedented lethality.”185
As for the two historical analogues proposed by the majority, they do not show a historical tradition of laws like D.C.‘s ban of plus-ten magazines. The majority first points to a “handful” of outlier state and territorial laws from the second half of the nineteenth century that restricted the open carry of Bowie knives.190 The majority‘s second analogue — the National Firearms Act of 1934 — regulated only “unusual” weapons like fully automatic machine guns, not arms “in common use” like the plus-ten magazines that D.C. has banned.191
1. Outlier State and Territory Bowie-Knife Regulation (1871-1889)
In the 1870s and ‘80s, two states (Texas and Arkansas) and a federal territory (Arizona) prohibited the open carry of Bowie knives.192 For the sake of argument, let‘s suppose that Bowie knives were arms in common use for lawful purposes.193
Even then, these three laws did not impose the “burden” on arms that D.C.‘s total ban imposes because none of these laws banned Bowie knives from the home.194 Plus, two expressly permitted keeping Bowie knives at one‘s “place of business,” and all of these laws allowed travelers to carry Bowie knives.195 In contrast,
In addition, three laws passed nearly a century after the Second Amendment‘s ratification (plus a couple of state court decisions)196 hardly constitute a “representative historical analogue”197 that reflects the “collective understanding of Americans.”198 Heller refused to “stake” its “interpretation of the Second Amendment upon a single law, in effect in a single city.”199 Bruen refused to “give disproportionate weight to a single state statute” — or even to “three.”200
Three statutes from the late 1800s are not only too little — they‘re also too late. Recall that ”Heller‘s interest in mid- to late-19th-century commentary was secondary.”201 Likewise, in Bruen, “post-Civil War discussions of the right” did “not provide as much insight into its original meaning as earlier sources” in part because they occurred “75 years after the ratification of the Second Amendment.”202 So even if the majority‘s “handful” of states had gone further and completely banned Bowie knives in the late 1800s, “scattered cases or regulations pulled from history may have little bearing on the meaning of the text” of the Second Amendment.203
As for the National Firearms Act of 1934, it regulated only “unusual” weapons like fully automatic machine guns and sawed-off shotguns, which were “not typically possessed by law-abiding citizens for lawful purposes.”204 And to know that, you don‘t need to look beyond the United States Reports. The Supreme Court “stated in Staples and again in Heller” that “short-barreled shotguns and automatic ‘M-16 rifles and the like’ are not in common use.”205
Therefore, even if the 1934 Act is representative of our historical tradition of firearm regulation,206 it is not “relevantly similar” to D.C.‘s ban on plus-ten magazines.207 Unlike D.C.‘s ban, the 1934 Act did not regulate arms “in common use,” so it did not “impose a comparable burden” on the right to keep and bear arms.208 In fact, the 1934 Act might be affirmative evidence against D.C. — Bruen said an old regulation “could be evidence that a modern regulation is unconstitutional” if “earlier generations addressed the [same] societal problem, but did so through materially different means.”209
D.C. suggests that machine guns were in common use by mobsters and outlaws in 1934.210 That could hardly matter less.211 What matters is whether they were in common use “for lawful purposes.”212 D.C.
In addition, although the Supreme Court has said Congress could ban machine guns without violating the Second Amendment, Congress did not actually do so in the 1934 Act.213 Instead, the Act merely imposed a registration requirement, restricted transfers, and imposed special taxes.214 Then, about five decades later, Congress prohibited the possession of machine guns made after 1986, while still grandfathering in the possession and transfer of machine guns made before then.215 So unlike D.C.‘s magazine ban, the less burdensome 1934 Act was not even a complete ban on a category of arms.
* * *
Finally, a word on the majority‘s “nuanced approach” to “unprecedented societal concerns or dramatic technological changes.”216 The phrase comes from dicta in Bruen — a decision that did not involve “unprecedented societal concerns or dramatic technological changes” and did not apply the “nuanced approach.”217 Heller, McDonald, and Rahimi didn‘t apply it either.
This single stray line of dicta from Bruen is the foundation of the majority‘s analysis — a slender reed compared to a holding of Heller that the government cannot ban arms in common use for lawful purposes, especially when Heller‘s distinction between common and uncommon arms was reaffirmed again (McDonald) and again (Bruen) and again (Rahimi). But even if “unprecedented societal concerns or dramatic technological changes” can justify some limited regulation of common arms, a law “may not be compatible with the right if it [regulates] to an extent beyond what was done at the founding.”218
Here, D.C. has not named a single Founding-Era law that bans an arm in common use for lawful purposes. (The majority does not say otherwise.) Nor has D.C. named a single such law from the first hundred years of the nation‘s independence. (Again, the majority does not say otherwise.) And even to the extent that later laws can be relevant, D.C. has identified no “well-established and representative historical analogue” that imposed a “burden” comparable to D.C.‘s outright ban on an arm in common use for lawful purposes.219
V. Conclusion
Mark Twain once told a story about an evening at church. He said that at first the sermon was so inspiring that he planned to put $400 into the collection plate: “I wanted to give that and borrow more to
I agree with most of what the majority says in the first 18 pages of its clear, concise, and eloquent opinion.222 I agree that plus-ten magazines are likely “‘Arms’ within the meaning of the Second Amendment,”223 “in common use” for the lawful purpose of “self-defense,”224 and covered by “the Second Amendment‘s plain text.”225 And I agree that a ban on plus-ten magazines is not analogous to regulations about the storage of gunpowder; or to restrictions on the time, place, and manner of carrying arms; or to state laws from the Prohibition Era directed at machine guns.226
But then I part ways with the majority in two respects.
First, the majority reads Heller to leave open the question of whether the government can ever ban an arm in common use for lawful purposes.227 In contrast, I read Heller to answer that question. It held that “a complete prohibition of their use is invalid.”228
Second, even assuming that the validity of those bans is an open question, the majority gets the answer wrong. D.C. has failed to “demonstrate that [its] regulation is consistent with this Nation‘s historical tradition of firearm regulation.”229
The majority‘s contrary conclusion depends on two types of regulations.230 But neither of them is analogous. The first of them — a “handful” of laws enacted nearly a century after the Second Amendment‘s ratification in two outlier states and a territory — did not cover arms kept at home or carried while traveling; in addition, those laws are too little and too late to establish a historical tradition.231 As for the second purported analogue, it covered only “unusual” arms — not arms in common use for lawful purposes.232 So neither demonstrates a tradition of laws imposing a burden comparable to D.C.‘s complete ban on commonly possessed plus-ten magazines.
Because D.C.‘s law violates the right to keep and bear arms guaranteed by the Second Amendment, I would reverse the district court‘s decision and direct it to enter a permanent injunction.233
I respectfully dissent.
Notes
In full,
No person in the District shall possess, sell, or transfer any large capacity ammunition feeding device regardless of whether the device is attached to a firearm.
For the purposes of this subsection, the term “large capacity ammunition feeding device” means a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition. The term “large capacity ammunition feeding device” shall not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.
The Supreme Court has often noted other lawful purposes for keeping and bearing arms, in addition to self-defense. Heller, 554 U.S. at 599 (“preserving the militia was [not] the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting” (emphasis added)); id. at 636-37 (Stevens, J., dissenting) (framing the question in Heller as “[w]hether [the Second Amendment] . . . protects the right to possess and use guns for [lawful] nonmilitary purposes like hunting and personal self-defense“); see also id. at 620 (majority) (noting that the Court had previously “described the right protected by the Second Amendment as bearing arms for a lawful purpose” (cleaned up)). Though the Court has also often mentioned self-defense, that‘s because self-defense is the primary “lawful purpose” for which Americans keep and bear arms. See id. at 630 (self-defense is handguns’ “core lawful purpose“); id. at 624 (using the phrase “for lawful purposes like self-defense” (emphasis added)); McDonald, 561 U.S. at 780 (plurality) (stating that the “central holding in Heller” was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home” (emphasis added)); cf. Bianchi, slip op. at 175-76 (Richardson, J., dissenting) (cautioning against a framework that “allows judges to decide just how important they think certain firearms are for self-defense and then to weigh th[at] finding against the threat they believe those arms pose to the public at large“).
First, I agree with the majority‘s decision to presume that it doesn‘t matter whether plus-ten magazines “are rarely used to fire more than a couple rounds in self-defense.” Majority Op. at 11. A handgun may be “used” without firing it, and a magazine may be “used” without dispensing a single round (let alone depleting its capacity). See Heller, 554 U.S. at 629, 636 (recognizing that handguns are commonly “used for self-defense” (emphasis added)); English Report at 14 (noting that “in the vast majority of defensive gun uses (81.9%), the gun was not fired“). What matters, again, is that millions of law-abiding Americans have chosen to arm themselves with plus-ten magazines to use for a lawful purpose. Id. at 26-33 (survey responses commenting on the utility of plus-ten magazines in self-defense situations); id. at 23 (62.4% of 39 million plus-ten magazine owners — about 24 million — own them for home defense). In any event, Americans do often fire more than ten rounds at the shooting range, and target practice is a perfectly lawful, common use. See id.
By the way, neither of the state court decisions quoted by the majority addressed bans on Bowie knives. See Cockrum v. State, 24 Tex. 394, 401 (1859) (law enhancing the penalty for manslaughter committed with Bowie knife); Aymette, 21 Tenn. at 156 (law prohibiting concealed carry of Bowie knives). And in fact, both courts conspicuously affirmed the right to possess Bowie knives. See Cockrum, 24 Tex. at 403 (“The right to carry a bowie-knife for lawful defense is secured, and must be admitted.“); Aymette, 21 Tenn. at 160 (noting that “citizens have the unqualified right to keep the weapon,” while explaining that “the right to bear arms is not of that unqualified character” (emphases original)); see also Bianchi, slip op. at 140-41 (Richardson, J., dissenting) (Aymette and similar state cases “determined whether the regulated weapon was in common use for lawful purposes. If it was, then they held that the government could regulate the possession or carry of that weapon, but that it could not completely ban it. Yet if that weapon was not in common use for lawful purposes, and if the weapon was particularly useful for criminal activity, then the government could outlaw it.“).
Bruen left open the question of whether the right to keep and bear arms, as applied against the states through the Fourteenth Amendment, should be interpreted as it was understood in 1791, when the Second Amendment was ratified, or in 1868, when the Fourteenth Amendment was ratified. See 142 S. Ct. at 2138. I take no position on that debate, or on mid- to late-19th-century regulations’ relevance to analysis of modern laws enacted by a state, rather than by the federal government or a federal enclave like D.C. Here, because the Second Amendment applies directly to D.C., the original meaning that controls is undoubtedly the original meaning in 1791.
For two reasons, Cummings’ testimony is not best understood to suggest (let alone prove) that 500,000 law-abiding citizens possessed machine guns and sawed-off shotguns. First, he was talking about criminals. Second, “weapons of the most deadly character” could be anything from a switch blade to a Tommy gun. As for the latter, only 15,000 commercially available Tommy guns were produced; a hefty price tag led to a “lack of demand” and “few sales.” Bruce N. Canfield, The G.I. Thompson in World War II, Am. Rifleman (Feb. 20, 2019), https://perma.cc/UN9S-3UZE. So “the bulk of the 15,000 . . . Thompson submachine guns languished in the warehouse with only a relatively small number trickling out periodically.” Id.; see also Heller II, 670 F.3d at 1287 (Kavanaugh, J., dissenting) (“The Thompson machine gun (commonly known as the ‘Tommy gun‘) entered commercial sale in the United States in the mid-1920s but saw very limited civilian use outside of organized crime and law enforcement.” (emphasis added)).