On April 28, a judge in the Southern District of Illinois issued a decision in Barnett v. Raoul granting a preliminary injunction of Illinois’ ban on assault weapons and large-capacity magazines (LCMs) enacted earlier this year—the Protect Illinois Communities Act, or PICA. Two federal judges in the Northern District of Illinois had previously denied motions for injunctive relief and upheld the law. In February, Judge Virginia Kendall upheld the law in Bevis v. Naperville after finding that “[t]he history of firearm regulation . . . establishes that governments enjoy the ability to regulate highly dangerous arms (and related dangerous accessories).” On April 25, Judge Lindsay Jenkins largely adopted the analysis in Bevis and similarly denied a motion to enjoin the statute. In Barnett, Judge Stephen McGlynn split with these Northern District decisions and found that “PICA seems to be written in spite of the clear directives in Bruen and Heller, not in conformity with them.”
In assessing the plaintiffs’ likelihood of success on the merits of their Second Amendment challenge, Judge McGlynn first reviewed the legal framework and Bruen’s rejection of the two-step test that had previously prevailed in the Courts of Appeal. At Bruen’s “plain text” step, the judge held that accessories banned by PICA (such as large-capacity detachable magazines and braces) are integral to the exercise of Second Amendment rights and protected by the amendment because “the ‘meaningful exercise’ of the right to armed self-defense is wholly dependent on the ability of citizens to utilize their arms and hit their intended target.” Finding that the banned items were covered by the text of the Second Amendment, Judge McGlynn proceeded to analyze whether there was any historical tradition that could support the law. The judge described the inquiry here as follows:
[T]o bear its burden, Defendants must: (1) demonstrate that the “arms” PICA bans are not in “common use;” and (2) “identify a well-established and representative historical analogue” to PICA.
Judge McGlynn found that the state could not meet its burden under part 1 of this inquiry because the semiautomatic weapons and LCMs banned by PICA are in common use. On this point, the judge observed that “[t]wenty-four (24) million firearms [the number of AR-15 style rifles owned nationwide by one count] dwarfs the 200,000 stun guns which the Supreme Court found sufficient to meet the ‘common use’ test,” and that about 39 million individuals own the type of high-capacity magazines banned by PICA. Judge McGlynn also relied on survey data suggesting that “34.6% of owners utilize [banned] rifles for self-defense outside of their home and 61.9% utilize them for self-defense at home,” to hold that the weapons are in common use for self-defense. The judge found the commonality of these weapons and magazines “dispositive,” but also dismissed the argument that historical concealed-carry regulations constituted an analogous historical tradition. Judge McGlynn noted that potential analogues offered by the state regulated only concealed carry, not sale or possession, and thus were not relevantly similar.
Illinois moved to stay Judge McGlynn’s injunction pending appeal to the Seventh Circuit, arguing both that the judge’s opinion improperly found that LCMs are “necessary to operate arms in common use for self-defense” and that the opinion misapplied Heller and Bruen by holding “that mere commonality is all that is required for regulations of weapons to be unconstitutional.” On May 4, Judge Frank Easterbrook of the Seventh Circuit Court of Appeals entered a stay of the Barnett injunction “pending further order of the court.”
Barnett takes a very expansive view of the “common use” test. In Heller, the Supreme Court held that:
[T]he sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
Bruen references the “common use” standard in its initial, textual inquiry before conducting any historical analysis (“Nor does any party dispute that handguns are weapons ‘in common use’ today for self-defense.”). While the Court has not clearly explained how this standard operates because it has never squarely decided a case dealing with a ban on certain types of weapons, its past opinions appear to place the “common use” inquiry at the initial step. When weapons are in common use and the Second Amendment extends to cover those weapons, the Constitution presumptively protects the keeping and bearing of those weapons unless the government can point to an analogous tradition of regulation. Justice Kavanaugh expressed this clearly in his Heller II dissent applying a text, history and tradition framework (emphasis added):
[T]he Second Amendment as construed in Heller protects weapons that have not traditionally been banned and are in common use by law-abiding citizens. Semi-automatic rifles have not traditionally been banned and are in common use today, and are thus protected under Heller.
To me at least, these decisions indicate that the “common use” inquiry cannot itself be dispositive of a Second Amendment challenge as Barnett suggests (unless, of course, a weapon is not in common use for lawful purposes—then, the lack of common use would be the end of the inquiry because the regulation would not implicate the Second Amendment). Rather, the historical-analogical step should still be part of the inquiry in challenges to categorical bans on commonly used weapons. The excerpt of Justice Kavanaugh’s Heller II dissent, notably, uses “and” not “or”—the lack of a similar tradition of banning weapons, then, is a necessary piece of the legal analysis. Although the government’s burden will certainly be much tougher to meet than in cases where the regulation is something less than a ban, this shouldn’t preclude the government from arguing by analogy to historical bans on weapons such as Bowie knives (as a recent opinion from Delaware observed, “the record [in that case] demonstrate[d] that Bowie knives proliferated in civil society” in the early 1800s before they were broadly restricted by some states). In other words, it’s possible—though likely rare—for a commonly used weapon to be regulated historically even through a broad ban similar to Illinois’ law.
A handful of states, for example, banned the sale of certain easily concealable weapons in the 19th century: Georgia in 1837, in a law subsequently struck down by a court that applied the Federal Second Amendment against state action despite Supreme Court precedent to the contrary, Tennessee in 1879; and Arkansas in 1881 (other states, like Alabama in 1837, enacted a prohibitively steep tax on the sale of Bowie knives and other concealable weapons). These laws may be insufficient in number to evince a historical tradition (Bruen isn’t clear), or they may be outliers or racially motivated and thus entitled to less weight, but there doesn’t seem to be any basis for carving them out of the legal analysis entirely as Judge McGlynn does. Moreover, for these laws to be true outliers, one would imagine that it would be important to know how other states at the time viewed the scope of their regulatory authority. For example, did other states consider similar bans but reject them; or did other states not consider such bans because social norms were different in those states at the time?
These laws may have covered types of weapons commonly owned and carried at the time they were enacted (that’s debatable, but the issue was never discussed in Barnett). A similar issue arises with regard to the National Firearms Act of 1934, which imposed a prohibitively steep tax and registration requirement for sawed-off shotguns, machine guns, and other firearms associated with criminal actors at the time. In testimony before the House Ways and Means Committee on the 1934 Act, Attorney General Homer Stillé Cummings observed (emphasis added):
[O]n the basis of the records of crimes of violence which have been perpetrated, taken with our statistics of the number of persons in prisons for crimes of violence, and such other collateral data as it is possible to secure, I am prepared to say that the statement which I made was exceedingly conservative. It would be much fairer to say that 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.
Cummings’ statement, of course, refers to individual criminals rather than weapons. However, it is followed closely by passages emphasizing the need to restrict access to sawed-off shotguns and machine guns.
It’s also worth noting that the decision in Barnett employs an exceptionally broad formulation of when weapons are in common use. Judge McGlynn seems to hold that Bruen does not limit the common use inquiry to self-defense or even to lawful purposes generally—rather, any weapon in common use is automatically protected. That doesn’t seem quite right to me, as Bruen observed that the parties there agreed “that handguns are weapons ‘in common use’ today for self-defense”—if the standard is simply common use, it’s not clear why the majority referred to self-defense. Moreover, Barnett holds that (if use for self-defense is required) AR-15-style rifles meet that requirement because large percentages of owners “utilize” the weapons for self-defense both inside and outside the home. But the figures the court relies upon are based on responses to a survey question for which owners of such firearms could select multiple reasons for ownership. Needless to say, it would be somewhat odd if such survey data alone could satisfy a constitutional-law standard, unaccompanied by any analysis of whether the firearms are actually used, or useful for, self-defense in some objective estimation.
Finally, Judge McGlynn writes that, “[u]nder the Caetano test, even 1% of the 24 million AR-15 style rifles held by citizens is sufficient to result in a finding that such arms are in common use.” The Court’s short per curiam opinion in Caetano, however, simply does not establish a numerical threshold for “common use.” In Caetano, the Court vacated and remanded a decision by the Massachusetts Supreme Court in part because that court had held that stun guns were not protected by the Second Amendment and were automatically “dangerous and unusual” since they did not exist in 1791. The Court observed that this was “inconsistent” with Heller’s statement that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” (emphasis added). The Court did not establish any cutoff for when a weapon is in common use, did not hold that 200,000 privately-owned weapons were sufficient to make a category of weapons commonly used, and did not even employ the phrase “common use” independently—the phrase only appears in quotations from the Massachusetts Supreme Court’s earlier decision. The Court repudiated the Massachusetts Supreme Court’s blinkered analysis of “common use” as of 1791 and instructed that court to re-decide the case. Justice Alito, joined by Justice Thomas, concurred in the judgment and expressed his view that the Massachusetts stun-gun ban violated the Second Amendment in part because approximately 200,000 civilians nationwide owned stun guns. Judge McGlynn’s 1% statement, then, is more accurately framed in terms of a test espoused by two Justices—we have little idea how the other seven Justices might approach the question (Justice Kavanaugh’s dissenting opinion in Heller II does not specify an exact numerical threshold, but suggests that 2 million privately-owned firearms nationwide would meet the cutoff for “common use” in his view).
 In addition to assault weapons (specific banned firearm models are listed) and LCMs, the law bans the possession and sale of certain firearm attachments including “any  device that is designed to and functions to increase the rate of fire of a semiautomatic firearm.”
 An emergency application to reverse the Bevis ruling pending an appeal is currently pending with the Supreme Court.