Litigation Highlight: Rhode Island Federal Judge Rejects Challenge to State’s Large-Capacity Magazine Ban

In a December 14 decision in Ocean State Tactical v. Rhode Island, District Judge John J. McConnell, Jr. denied a motion to preliminarily enjoin Rhode Island’s recent statutory prohibition of “Large Capacity Feeding Devices,” or LCMs.  The Rhode Island law, which was passed and became effective in June, bans the possession of magazines that are capable of holding (or can be readily converted to hold) more than 10 rounds of ammunition.  The Ocean State plaintiffs brought claims under the Second Amendment, the Fifth Amendment takings clause, and the Fourteenth Amendment due process clause.

The judge first made findings of fact from the evidentiary record, which included opposing declarations by expert historians retained by the parties.  The judge stated that “the credentials of the proffered experts weigh heavily in the Court’s view of which opinions to accept where there is a conflict.”  According to the judge, the background and credentials of the plaintiffs’ experts suggested potential bias, whereas “[t]he State’s historians are more traditional neutral academics.” 

After summarizing Heller, McDonald, and Bruen, Judge McConnell conducted the initial “step” of the Bruen analysis and asked whether the plain text of the Second Amendment protects the conduct at issue.  The judge first addressed whether the prohibited magazines are “Arms.”  Noting that prior decisions, including the First Circuit’s 2019 decision in Worman v. Healey, merely assumed that magazines were protected by the Second Amendment without examining the question, the judge nevertheless found that it was the plaintiffs’ “burden to show that large-capacity magazines fall within the purview of the Second Amendment.”  Judge McConnell framed the inquiry in historical terms:  what was the ordinary meaning of the word “Arms” at the time of the Founding, and would it have included something akin to a modern magazine?  Observing that the plaintiffs had not, in his view, offered any expert testimony on the original public meaning of “Arms,” the judge concluded that “[t]he word ‘Arms’ was a general term for weapons such as swords, knives, rifles, and pistols, but it did not include ammunition, ammunition containers, flints, scabbards, holsters, or ‘parts’ of a weapon.”

The judge next considered whether large-capacity magazines are useful for self-defense.  Finding that the plaintiffs had failed to submit expert testimony regarding how any LCM analogues were actually used in the Founding Era, the judge relied upon evidence by the state that it was “unaware of any incident in which a civilian has ever fired as many as 10 rounds in self-defense” and that, in early America, “high-capacity firearms . . . were understood to be weapons of war or anti-insurrection, not weapons of individual self-defense.”  Therefore, the judge determined that such magazines, or their Founding Era equivalents, were not in common use for self-defense.

Having found LCMs outside of the originally-understood textual scope of the Second Amendment, the judge determined that he “need not investigate whether the LCM Ban’s restrictions are consistent with the regulations of history, regardless of which historical period is more apt.”  In other words, an item not covered by the text was “entitled to no presumptive protection.”

The opinion went on to assess the other legal factors relevant to preliminary relief.  The judge found that that “[t]he asserted governmental interest of public safety stemming from mass gun murders could not be more undeniably compelling,” that the law is reasonably designed to accomplish that purpose, and that the burden on owners of LCMs is “de minimis.”  The judge further deemed the LCM Ban “a valid exercise of the police power” that does not implicate the takings clause, and rejected the due process and vagueness challenges.  Finally, he found no irreparable harm because any magazines forfeited would be retained and returned to the owner in the event of a contrary legal ruling. 

The Ocean State decision takes a similar approach to a recent federal decision regarding Oregon’s large-capacity magazine ban, which was enacted by ballot initiative in November.  The Oregon judge focused more on “common use,” but ultimately concluded that possessing magazines capable of holding a certain amount of ammunition is not protected by the amendment’s plain text. 

As I’ve written previously, it’s no surprise that courts are placing more emphasis on the initial textual step of the inquiry after Bruen.  It was often easier under the means-ends test to assume textual coverage, and then apply the appropriate level of scrutiny.  While it’s theoretically still possible to follow that same pattern and skip to Bruen’s historical-analogical step, that sequencing seems to conduct the analysis backwards.  Prior decisions like Worman, therefore, are subject to some criticism for failing to develop a framework to determine textual coverage.  If a law doesn’t implicate the Second Amendment at all, courts should not be weighing costs and benefits or searching for historical analogues.  Ocean State appears to be correct on this point: if there’s no coverage, that is the end of the inquiry—why would a court apply a Second Amendment-specific legal test to conduct that doesn't raise any Second Amendment issue in the first place?  Moreover, as Jake Charles has observed, “it simply cannot be the case that every weapon is presumptively covered unless the government proves it is not in common use.”  In other words, the burden should be on the plaintiff to make an initial showing that the Second Amendment is even at issue, as is the case for other constitutional challenges (for example, in First Amendment cases, the plaintiff bears the initial burden of showing that the speech at issue actually implicates the Constitution).

Judge McConnell’s reliance on expert submissions also points to a growing divide in how federal courts are dealing with post-Bruen cases.  Some judges, including Judge Carlton Reeves in Mississippi, have independently raised the prospect of a court-appointed expert historian, while others (including Judge McConnell and Judge Suddaby in New York) have suggested that traditional expert testimony of opposing historians would be more useful.  For example, Judge Suddaby wrote in his preliminary injunction decision in Antonyuk v. Hochul that “[w]hat would be more helpful to this Court is the testimony of opposing historians with expertise in the time periods and regions that produced the laws” that were put forward as potential analogues.  A federal judge in Tennessee suggested that court-appointed experts might be useful, but expressed “doubts that [the approach] can be scaled to the level that would be required by the federal courts’ massive docket of gun prosecutions.”  For now, at least, the preference seems to be for opposing, rather than court-appointed, experts.  Despite Judge Reeves’ order suggesting that he was inclined to appoint his own expert, neither the government nor defense counsel in that case agreed. 

Opposing expert testimony seems both more feasible as a practical matter and, potentially, more faithful to Bruen and its exhortation that courts should rely on the adversarial process.  On the other hand, there are reasons to worry that the use of party-retained experts may result in incomplete, slanted presentations of the historical record.  For example, a 2003 NYU Law Review Note regarding expert testimony by historians in federal cases references the concern that a retained “[historian-]expert will necessarily have an individual perspective that colors his or her research and testimony, and that this perspective will be obscured by the expert's ‘false air of neutrality.’”  It could also be that, in discussions with a retaining party, an expert is pressured to modify his or her analysis or omit certain portions in ways that may not accord with best practices in a neutral, academic setting.