An Update on Challenges to State Assault Weapon and Magazine Bans
In May 2023, Jake Charles published an overview of Second Amendment litigation challenging bans on certain kinds of semi-automatic firearms (often labeled assault weapons) at the state level. As the Court is preparing to confront its next assault weapons cert petition in Snope v. Brown (formerly Bianchi v. Brown)—a case challenging Maryland’s ban which was recently upheld by the en banc Fourth Circuit—this post rolls forward the earlier survey of ongoing litigation challenging both assault weapon and large-capacity magazine restrictions.
The procedural posture of these cases (captured in the status column) is potentially all the more important these days, as the Court rejected a petition in the challenge to Illinois’ ban earlier this year primarily because the case was only at the preliminary injunction stage and the factual record was insufficiently developed. In that case, NAGR v. Naperville, Justice Alito voted to grant the petition. Justice Thomas wrote separately to emphasize his view that “[t]he Seventh Circuit’s decision illustrates why this Court must provide more guidance on which weapons the Second Amendment covers” because “[i]t is difficult to see how the Seventh Circuit could have concluded that the most widely owned semiautomatic rifles are not ‘Arms’ protected by the Second Amendment.” Justice Thomas nevertheless thought it proper to deny the petition given the status of the case and wrote that the “Court is rightly wary of taking cases in an interlocutory posture.”
The justices decided Bruen at an early stage without full factual development regarding the operation of New York’s discretionary licensing system (including whether the law operated differently depending on geography). But they may be more reticent today to take a case without a fully developed factual record, especially one involving a topic as high profile as assault weapons. That said, Justice Thomas is certainly correct that the Court will ultimately need to clarify the scope of the “arms” protected by the Second Amendment. And an assault weapon or LCM challenge seems the most likely class-of-arms case to make its way onto the Court’s docket in the coming years.
Here is a quick update on the major ongoing cases. It focuses on the headline legal challenge to each state law but otherwise may not capture all litigation.
|
State |
Law challenged |
Circuit |
Case Caption |
Status |
Factfinding? |
|
California |
LCM ban (more than 10 rounds); enacted in 2010 |
9th Cir. |
Duncan v. Bonta (23-55805) |
|
Pre-Bruen case with a more developed lower-court factual record |
|
Colorado |
LCM ban (more than 15 rounds); enacted in 2013 |
10th Cir. |
Gates v. Polis (24-1209) |
|
No |
|
Connecticut |
AW and LCM ban (more than 10 rounds); enacted in 2013 |
2d Cir. |
NAGR v. Lamont (23-1162) |
|
No, decided on preliminary injunction |
|
Delaware |
AW and LCM ban (more than 17 rounds); enacted in 2022 |
3d Cir. |
Gray v. Jennings (24-309) |
|
No, decided on preliminary injunction |
|
Illinois |
AW and LCM ban (more than 10 rounds); enacted in 2023 |
7th Cir. |
NAGR v. Naperville (23-1353) formerly Bevis v. Naperville |
|
No / in progress |
|
Maryland |
AW ban; enacted in 2013 |
4th Cir. |
Snope v. Brown (21-1255) formerly Bianchi v. Brown |
|
Arguably yes, litigation has been ongoing since 2013 including summary judgment briefing |
|
Massachusetts |
AW and LCM ban (more than 10 rounds) |
1st Cir. |
Capen v. Campbell (24-1061) |
|
No, decided on preliminary injunction |
|
New Jersey |
LCM and AW ban (more than 10 rounds); AW ban enacted in 1990, LCM ban amended most recently in 2018 |
3d Cir. |
Association of N.J. Rifle & Pistol Clubs v. Platkin (24-2506) |
|
No, decided on preliminary injunction |
|
New York |
AW ban; originally enacted in 1994 and amended in 2013 |
2d Cir. |
Lane v. James (22-cv-10989)
|
|
Yes, once summary judgment decision is issued |
|
Oregon |
LCM ban (more than 10 rounds); enacted in 2022 by ballot initiative |
9th Cir. |
Oregon Firearms Federation v. Brown (23-35540) |
|
Bench trial held |
|
Rhode Island |
LCM ban (more than 10 rounds); enacted in 2022 |
1st Cir. |
Ocean State Tactical v. Rhode Island (23-1072) |
|
No, decided on preliminary injunction |
|
Vermont |
LCM ban (more than 10 rounds for a long gun and more than 15 rounds for a handgun); enacted in 2018 |
2d Cir. |
Vermont Federation of Sportsmen’s Clubs v. Birmingham (24-2026) |
|
No, decided on preliminary injunction |
|
Washington |
AW ban; enacted in 2023 |
9th Cir. |
Hartford v. Ferguson (23-cv-05364) |
|
No |
|
Washington, D.C. |
LCM ban (more than 10 rounds); enacted in 2008 |
D.C. Cir. |
Hanson v. D.C. (23-7061)
|
|
No, decided on preliminary injunction |
Four appellate courts have now rejected Second Amendment challenges to these laws. Two decisions turn solely on the second step of the Bruen test that requires a comparison to historical analogues. The First Circuit assumed (without detailed analysis) that LCMs are protected “arms,” and the D.C. Circuit found on its own analysis that the Second Amendment’s text “presumptively protects the possession of []LCMs.” By contrast, the Seventh and Fourth Circuits each resolved the case at “step one” by concluding that the banned weapons and magazines are not protected by the text of the amendment. But both courts nevertheless proceeded to conduct the historical analysis and also find the regulations consistent with history.
In terms of upcoming decisions, the big ones to watch are Duncan v. Bonta from the en banc 9th Circuit, NAGR v. Lamont from the Second Circuit, and Capen v. Campbell from the First Circuit. Duncan will likely come first, considering that it was argued eight months ago, while NAGR and Capen were just argued last month. All three cases involve prohibitions enacted over a decade ago where there has likely been sufficient lower court factfinding to avoid a cert denial on that basis alone. This means that, even if the Court declines to take up the pending Snope v. Brown petition, it will almost certainly see more petitions soon.