Litigation Highlight: First Circuit Upholds Rhode Island Large-Capacity Magazine Ban

On March 7, a three-judge panel of the First Circuit Court of Appeals issued a decision in Ocean State Tactical v. Rhode Island upholding Rhode Island’s ban on large capacity magazines (LCMs) capable of holding more than ten rounds of ammunition—which was enacted in June 2022 just days before the Bruen decision.  A Rhode Island district judge had previously denied a motion to enjoin the law as violating the Second Amendment in a December 2022 opinion (we covered that ruling here).  The First Circuit affirmed the judgment, albeit based on a slightly different legal analysis than the district judge.  The decision highlights how crucial Supreme Court guidance on class-of-arms restrictions is at the current moment, as other similar challenges work their way up to the appellate level and the Supreme Court.

The district court decision in Ocean Tactical was somewhat unusual for making its substantive determination of constitutionality at the threshold coverage step of the Bruen inquiry.  The judge found that “magazines” are not “arms” within the historical meaning of the Second Amendment, that magazines are not in common use for self-defense, and that there was therefore no “need [to] investigate whether the LCM Ban’s restrictions are consistent with the regulations of history.”  This is a relatively similar approach to Bevis, where a Seventh Circuit panel held last November that the semiautomatic weapons and LCMs Illinois banned were weapons and accessories that “can lawfully be reserved for military use” and thus are not protected “arms” under pre-Bruen circuit precedent.[1]  As discussed in this recent SCOTUS update, the challengers in the Illinois case have filed cert petitions asking for Supreme Court review of the Seventh Circuit’s decision—the government’s responses are now due on April 15.  Ocean State is only the second class-of-arms decision on assault weapons or magazines from a federal appellate court applying Bruen (the other categorical ban case is the Ninth Circuit's butterfly knife decision, which Jake Charles previously summarized here), and the First Circuit takes a different approach from both Bevis and the Rhode Island district judge.

The First Circuit “assume[d] that LCMs are ‘arms’ within the scope of the Second Amendment and proceed[ed] to consider whether HB 6614 is consistent with our history and tradition.”  In an opinion by Judge William Kayatta, Jr., the court first observed that “cases like this one ‘implicating unprecedented societal concerns . . . may require a more nuanced approach’ to historical analysis.”  As Bruen instructs, the court noted that this analogical comparison requires an investigation into how and why the modern law and potential historical comparators burden the right to armed self-defense.  In determining how Rhode Island’s modern LCM prohibition burdens self-defense, the opinion found that “that civilian self-defense rarely – if ever – calls for the rapid and uninterrupted discharge of many shots, much less more than ten.”[2]  The court found that, in contrast to the minimal burden imposed by the LCM ban, historical bans on sawed-off shotguns and Bowie knives placed a greater burden on Americans’ right to armed self-defense at the time those laws were enacted.

Judge Kayatta next compared the “why” (or the legislative justification) for Rhode Island’s LCM ban to historical comparators.  He identified the concern underlying the LCM ban as a threat to public safety, specifically tied to mass shooting events where shooters tend to use semiautomatic firearms outfitted with LCMs.  The court held that historical laws—the sawed-off shotgun and Bowie knife regulations relied upon by the state—were similarly instances of “legislators respond[ing] to a growing societal concern about violent crime by severely restricting the weapons favored by its perpetrators, even though those same weapons could conceivably be used for self-defense.” Going further back in time, the court asserted that the Founding-era corollary to a mass shooting was the “risk[] posed by the aggregation of large quantities of gunpowder, which could kill many people at once if ignited,” and to which some states responded by “limit[ing] the quantity of gunpowder that a person could possess, and/or limit[ing] the amount that could be stored in a single container.”  The opinion also observed that “[t]here is no question that semiautomatic weapons fitted with LCMs much more closely resemble the proscribable ‘M-16 rifles and the like’ than they do traditional handguns,” quoting Bevis approvingly in the process.  Thus, Judge Kayatta held that “the burden on self-defense imposed by HB 6614 is no greater than the burdens of longstanding, permissible arms regulations, and its justification compares favorably with the justification for prior bans on other arms found to pose growing threats to public safety.”

The opinion also addressed three primary counter-arguments raised by Ocean State and other plaintiffs in the case.  The court first noted that, even if LCMs are more widely possessed but not necessarily used for self-defense purposes, the burden on self-defense should be measured primarily by the likelihood that the devices will actually be used in self-defense.  Second, the court rejected common use as the sole metric for determining whether a category of weapons may be banned—the opinion observed that this test would necessarily be somewhat circular, that the law “must [] be able to respond when the ramifications of a technological development become more apparent over time,” and that prior class-of-weapons bans like the National Firearms Act did not explicitly consider how many of the banned weapons were lawfully owned at the time of the ban.  The court also rejected plaintiffs’ reliance on Justice Alito’s Caetano concurrence and its suggestion that 200,000 privately-owned stun guns sufficed to make the weapons “in common use”—rather, the court found this comparison nonsensical because “[s]tun guns were specifically designed as non-lethal weapons, making them far less dangerous than semiautomatic firearms.”  Third and finally, the court brushed aside the plaintiffs’ argument that many of the states’ preferred historical analogues date from too far after ratification of the Second Amendment, noting that Bruen itself left that question open.  

Thus, “Bruen’s guidance in this case le[d] [the court] to conclude that HB 6614 is likely both consistent with our relevant tradition of gun regulation and permissible under the Second Amendment.”  In a brief concluding section, the court rejected plaintiffs’ claims under the Fifth and Fourteenth Amendments.  Rhode Island’s law did not constitute a taking requiring compensation, the court said, because “LCM owners have the option to sell, transfer, or modify their magazines.”  And the court found that plaintiffs had failed to make a sufficient showing on Fourteenth Amendment claims based on retroactivity or vagueness.

Second Amendment challenges to LCM restrictions and assault weapon bans (AWBs) are often grouped together because the legal analysis, especially under the Bruen test, is similar.  First, similar arguments about common use are often made in both contexts.  The plaintiffs in Ocean State argued that “approximately 39 million Americans—more than 10% of the nation’s total population and more than 15% of American adults—own or have owned ammunition feeding devices that hold more than ten rounds.”  And the plaintiffs in Bevis similarly contended that both the banned semiautomatic firearms at issue there are in common use; the dissent, for example, observed that “[m]ore than 24 million AR rifles are estimated to be in circulation.”  In both cases, the plaintiffs argued that these numbers established definitively that the relevant category of firearms or accessories is in common use for lawful purposes and cannot be banned.  Second, at the historical tradition step of the Bruen inquiry, the state will often rely on similar analogues in AWB and LCM litigation.  States tend to argue, as Rhode Island did in Ocean State, that the firearms or accessories “implicat[e] unprecedented societal concerns or dramatic technological changes” under Bruen, require more nuanced analogizing, and that historical bans on Bowie knives or Prohibition-era machine gun restrictions are thus appropriate analogues.

Ocean State is now the second federal appellate decision in this category since Bruen, following Bevis.  As Jake Charles summarized in this prior post, other assault weapon ban challenges are pending in Maryland, California, Connecticut, Massachusetts, New Jersey, Washington, and Colorado.  Several of those cases are at the appellate level.  After a lengthy post-argument delay, the Fourth Circuit took the Maryland case (Bianchi v. Brown) directly en banc and the full circuit court will hear argument on March 20.  District Judge Roger Benitez struck down California’s AWB in an October decision in Miller v. Bonta and invalidated the state’s LCM ban in an earlier ruling in Duncan v. Bonta.  Those rulings were stayed by the Ninth Circuit pending the state’s appeal (with the Duncan stay issued by an en banc court).  Miller was argued on January 24, 2024, but the three-judge panel in the case then issued an order holding that case in abeyance (with the stay intact) pending an en banc decision in Duncan where oral argument is set for March 19. 

A Third Circuit panel heard argument in a Second Amendment challenge to Delaware’s AWB and LCM ban on March 11 in Delaware State Sportsmen’s Association (the district court decision in that case relied on Bowie knife laws and machine-gun bans, in a similar manner as Ocean Tactical).  Washington, D.C.’s LCM ban was upheld last spring, that ruling was appealed, and a D.C. Circuit panel held oral argument on February 13.  We covered the D.C. and Delaware district court opinions in this prior post.  A district judge upheld Massachusetts’ AWB in December in Capen v. Campbell—that case is now on appeal to the First Circuit and will be fully briefed at the end of April, although the decision in Ocean State perhaps signals the likely outcome.  Proceedings in the challenge to Washington’s AWB are stayed pending the Ninth Circuit’s en banc decision in Duncan.  Oregon’s LCM restriction (which was enacted by ballot initiative in 2022) was upheld by a district judge last July and is on appeal with proceedings similarly on hold while Duncan is argued and decided.    

One interesting aspect of this ongoing litigation is that, because about 12-15 states have AWBs or LCM bans in place (with a lot of overlap), there are only certain circuit courts that could even conceivably pass on a Second Amendment challenge to such a law.  The states with such laws in place are overwhelmingly concentrated in the First, Second, Third, Ninth, and D.C. Circuits.  The only other circuits with even a chance of fielding such cases are the Fourth Circuit (due to Maryland), the Seventh Circuit (due to Illinois) and the Tenth Circuit (due to Colorado’s LCM ban[3]); the Fifth, Sixth, Eighth and Eleventh Circuits will never deal with these challenges in the current regulatory landscape.  I think that likely means that the Supreme Court may well take up an AWB or LCM ban case sooner rather than later, even without a direct circuit split.