Assault Weapons Bans after Bruen

  • Date:
  • August 22, 2022

Assault weapons bans are certain to receive a great deal of attention post-Bruen.  Already, a federal judge in Colorado granted an emergency TRO application and enjoined the assault weapons ban in Superior, Colorado until November—albeit without argument from the town.  The House also passed a federal assault weapons ban earlier this month, although the bill is unlikely to make progress in the Senate.

Seven states and the District of Columbia have assault weapons bans in place, as do a number of towns and cities across the country (including, notably, Highland Park and Highwood, IL).  As we can expect to see challenges to many of these bans after Bruen, it’s worth reviewing the two-step analysis that will now apply.  The first step for a court is to determine whether the banned weapons are covered by the text of the Second Amendment, which covers only those weapons that are “in common use” for lawful purposes (Bruen affirmed this test from Heller).  If a court decides that a ban applies only to weapons not in common use by law-abiding citizens for self-defense—like, presumably, a machine gun ban—that is the end of the inquiry, and the prohibition is lawful.  If the ban covers at least some weapons in common use for self-defense, then the government must come forward with analogous historical laws showing that the ban is consistent with America’s historical tradition of firearms regulation.  There’s not even a possibility of finding a historical “twin” in these cases, because assault weapons were not commonly commercially available until relatively recently.  Rather, one would expect governments to analogize to historical bans on especially dangerous or novel categories of weapons.

Courts that considered assault weapons bans under the old two-step framework often punted the first step of the analysis.  Because they found that the bans met intermediate scrutiny, appellate courts frequently assumed (without deciding) that the weapons were covered by the Second Amendment.  For example, in Heller II, a D.C. Circuit panel noted that semi-automatic weapons and guns with large magazines were almost certainly “in common use,” but that it was not clear “whether these weapons . . . are useful specifically for self-defense or hunting.”  The court didn’t need to resolve that question, though, because it assumed that the guns were used for lawful purposes and upheld D.C.’s ban under intermediate scrutiny (over a dissent from then-Judge Kavanaugh).  Similarly, in NYSRPA v. Cuomo, Worman v. Healey, and Fyock v. Sunnyvale, appellate courts ultimately assumed the “common use” prong and upheld bans under intermediate scrutiny.[1] 

The Seventh and Fourth Circuits took slightly different approaches.  In Kolbe v. Hagan, Judge King of the Fourth Circuit—writing for an en banc majority—decided the case at step one, finding that “the banned assault weapons and large-capacity magazines are clearly most useful in military service” and therefore “are not constitutionally protected.”  But Judge King went on to do the intermediate scrutiny analysis anyway, in the alternative.[2]  In Friedman v. City of Highland Park, Judge Easterbrook (writing for a divided Seventh Circuit panel) applied a slightly different test:  he asked “whether [the] regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia,’ and whether law-abiding citizens retain adequate means of self-defense.”  Judge Easterbrook’s analysis is ultimately not all that different from the approach of assuming coverage and then upholding under means-ends scrutiny.  He conceded that assault weapons “can be beneficial for self-defense” and then relied on statistical and empirical evidence of the law’s benefits to uphold it (which looks a lot like intermediate scrutiny).  

What will happen when additional challenges to state and local assault weapons bans start to arrive in court, or when existing challenges are reevaluated under Bruen?  There are likely four possible outcomes.  At Bruen “step one,” a court might (1) decide that banned assault weapons are not actually in common use because—although the absolute number of guns owned is high—the ownership is concentrated and is a small percentage of the total U.S. adult population; or (2) decide that banned assault weapons are in common use but not for lawful purposes, as the Fourth Circuit did in Kolbe.  At Bruen “step two,” a court might (3) uphold the ban because it finds that historical laws prohibiting certain categories of weapons establish a tradition of analogous regulation; or (4) strike down the ban because there is no historical tradition of similar regulation. 

One thing is for certain:  while courts frequently sidestepped the coverage analysis previously by assuming coverage and applying intermediate scrutiny, that is no longer an option.  Even though “reliable empirical evidence of lawful possession for lawful purposes [may be] elusive, beyond ownership statistics” (as the Second Circuit noted in Cuomo), we can expect courts to grapple in much more depth with this part of the inquiry.  If “in common use” requires more than a cursory examination of absolute sales data, it might mean looking at the number of people who actually own such weapons.  But, under any analysis, some assault weapons are likely to be in “common use.”  More likely, courts will examine in closer detail whether these weapons are used for “lawful purposes.”  The Fourth Circuit held that “AR-15-type rifles” were “unquestionably most useful in military service . . . whatever their other potential uses.”  Even though they are commonly owned, Judge King found them beyond the scope of the Second Amendment.   

Going forward, we are likely to see courts develop this analysis further:  How do people use assault weapons in practice?  Is the relevant inquiry whether people buy these weapons intending to use them for self-defense, or whether they are actually useful for self-defense?  How many recorded instances are there of such weapons being used successfully in a self-defense scenario?[3]  And in what specific ways are they similar or different from “weapons that are most useful in military service—M–16 rifles and the like”?  Another outstanding question is whether a weapon can be commonly used for self-defense in some contexts, but not others.  Consider that an assault weapon may be useful for self-defense in the home but not outside of it—it is relatively difficult to conceal, and may be unwieldy to actually use in the event of an attack.  If armed self-defense is the core of the Second Amendment right, the amendment may only protect the right to have such a gun in the home for self-defense and not the right to carry it outside of the home other than for purposes such as hunting.  General public carry of such rifles may be “dangerous and unusual,” while keeping them at home may not.

Moving on to step two, the best guide we have for how this analysis might look in practice is likely a passage from Judge Benitez’s 2021 decision in Miller v. Bonta—which, as Jake previously described, struck down California’s assault weapons ban and also made some unusual observations about the relevance of modern citizen-militias.  At step one, Miller briefly considered whether there was a historical tradition of banning guns such as semiautomatic weapons and rejected several historical laws put forward by the state as possible analogues, including “firing-capacity regulations from the 1920’s and 1930’s.”  The opinion also considered a 1932 D.C. law that restricts possession of any “firearm that shoots automatically or semiautomatically more than twelve shots without reloading.”  Given Bruen’s rejection of 20th century history, what other analogues might state and local governments rely upon at this step?  Modern-day machine guns and assault weapons became commercially available on a broad scale only recently; but, of course, Bruen is clear that a “twin” or “dead ringer” is not necessary.  Consider historical bans on spring guns, which were passed in the early and mid-19th century.  If the justification for banning this class of weapons was comparable to the justification for modern assault weapons bans, this may be one way to argue that today’s bans (or certain portions thereof) are grounded in historical tradition.

[1] Note that some of these decisions expressed serious doubts about whether the subject weapons were in common use for lawful purposes such as self-defense, but found it unnecessary to resolve that issue because the case could be decided under intermediate scrutiny.

[2] Rupp v. Becerra (a district court decision vacated by the Ninth Circuit after Bruen) took a similar tack.

[3] In Kolbe, the majority opinion noted that the plaintiffs had failed to submit evidence that the banned weapons had ever “been used in self-defense in Maryland, as opposed to being possessed for self-defense.”