Federal Judge Rejects Challenge to California’s “Ghost Gun” Regulations

After a hearing on October 24, a federal judge in the Central District of California issued an order denying a motion for preliminary injunction of two California statutes that regulate self-manufactured firearms, or ghost guns.  The judge’s order adopted the legal analysis in an 11-page tentative ruling issued on October 21.

The case, Defense Distributed v. Bonta, was filed in late August by Defense Distributed, a company that “sells products and software that allow consumers to self-manufacture some of the most popular firearms in the United States.”  Defense Distributed’s products include the Ghost Gunner, “a general-purpose Computerized Numerical Code milling machine . . . that gives purchasers the ability to complete unfinished frames and receivers for various types of firearms, including the AR-15 . . . and AK-47.” 

In June 2022, California passed AB 1621, which bans the self-manufacture of unserialized firearms and the sale and purchase of precursor parts not imprinted with a federal serial number.  AB 1621 also criminalizes the use or sale of CNC milling machines, such as the Ghost Gunner, by anyone who is not a federally licensed dealer.  The following month, California passed another law, SB 1327, authorizing private civil lawsuits to enforce several existing state gun restrictions including the state’s ban on buying and selling unserialized component parts.  SB 1327 is modeled after a Texas anti-abortion statute and seeks to evade pre-enforcement legal challenges in federal court, including by instituting rules that make it more likely that the party challenging the law will be forced to pay the state’s attorneys’ fees.  

Defense Distributed challenged both of these statutes under the Second Amendment, arguing in part that “no restrictions were placed on the ability to manufacture arms for personal use in America during the seventeenth, eighteenth, or nineteenth centuries” and, therefore, California’s restrictions are inconsistent with historical tradition of gun regulation under Bruen.  Defense Distributed also brought First Amendment and equal protection challenges to SB 1327.  

District Judge George Wu denied the motion for a preliminary injunction.  The judge emphasized that Bruen still contemplates an initial determination of whether the conduct at issue is encompassed by the “plain text” of the Second Amendment.  Indeed, he went further and noted that—in his view—Bruen “cannot possibly be understood as meaning that the ‘text’ of the Second Amendment is informed by a ‘historical understanding,’ at least not without rendering the Supreme Court’s repeated reference to ‘plain text’ entirely meaningless.”  The judge observed that “try as you might, you will not find a discussion of [self-manufacture of firearms or the sale of the tools and parts necessary to complete the self-manufacturing process] (or any such ‘right(s)’) in the ‘plain text’ of the Second Amendment.”  The judge found that Defense Distributed’s efforts to broaden the text to encompass a right to manufacture and purchase certain guns “perceives a penumbra” where there is none.  The judge also rejected Defense Distributed’s argument that historical analysis is contained within the first step of the test. 

Because the text does not protect this conduct, the judge held, the Second Amendment challenge “fail[ed] at the threshold stage of the inquiry” and the plaintiff was not likely to succeed on the merits.  In his order adopting the tentative ruling, the judge confirmed that Bruen’s historical-analogical approach “only applies in situations where the plain text of the Second Amendment covers an individual’s conduct that a government has attempted to regulate.”

The judge noted a recent decision from the District of Delaware, Rigby v. Jennings, which struck down portions of Delaware’s ghost-gun law.  Rigby held that the state’s ban on possessing unserialized guns and certain firearm component parts implicated conduct protected by the Second Amendment and that the regulations were not consistent with historical tradition.  Judge Wu found Rigby, which relied primarily on a pre-Bruen circuit case, unpersuasive, and agreed with the state’s contention that there is “no authority [showing] that the right to own a machine used to manufacture one’s own arms is encompassed by the plain text of the Second Amendment, which says nothing about ‘self-manufacture or assembly’ of one’s own firearms.”  The judge also rejected the motion as to SB 1327, finding that the state’s declaration that it would not see attorneys’ fees in the case mooted plaintiff’s standing to challenge that statute.

When comparing this outcome to the decision in Rigby last month, one distinction is that Delaware’s statute criminalizes possession of certain unserialized component parts by individuals who are not federally-licensed dealers, with no exceptions.  California’s law, while very similar, provides a grace period in which someone possessing a prohibited part is allowed to register for a serial number.  That said, the reasoning in Defense Distributed would almost certainly have produced a different result in Rigby—as Judge Wu recognizes.  Rigby found that possession of unserialized “frames and receivers” was “presumptively protected,” while the California decision found that such items were outside of the amendment’s textual scope.

Defense Distributed’s focus on a threshold plain-text inquiry is entirely consistent with Bruen: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”  And while Bruen confuses matters by attempting to shoehorn itself into “one part,” Judge Wu’s finding that history must play a separate role from plain text also seems correct.  If a plaintiff needs to invoke some kind of historical tradition to show that conduct is within the plain meaning of the Second Amendment, that necessarily takes us out of the realm of “plain text.”  It’s also worth appreciating, however, that courts pre-Bruen did hold that conduct such as firing guns at a training range was protected because that conduct “lies close to the core of the individual right of armed defense.”  Those decisions also seem correct, at least to some extent, because it would be thoroughly odd to recognize a right to possess and carry guns for self-defense if a state could then regulate in a way that completely removed the ability of gunowners to take their guns to the range for practice (a similar argument likely applies to ammunition restrictions, even though ammunition is not explicitly mentioned in the amendment).  

Bruen does not provide much clarity in this area, leaving open questions such as when a “law[] imposing conditions and qualifications on the commercial sale of arms” might rise to the level that it does implicate protected conduct.  Judge Wu’s opinion in Defense Distributed similarly doesn’t tackle this question head on—applying a simpler plain text analysis—but the issue seems likely to arise in future ghost-gun litigation.  An opinion issued in August by a federal judge in North Dakota rejected a challenge to the ATF’s ghost-gun rule (which recently took effect), finding that requiring serialization and channeling sales through federally-licensed dealers are commercial restrictions that are presumptively lawful even after Bruen.  And the Fourth Circuit, in a 2021 opinion, distinguished between “a hoop someone must jump through to sell a gun” (which a commercial qualification that does not implicate the Second Amendment) and “a total ban on buying a gun from a licensed dealer” applicable to certain groups (which would implicate the amendment’s plain text).  The requirement that frames, receivers, and other component parts receive a serial number before they are sold seems much closer to a “hoop” than a ban—the parts can still be bought and sold, so long as they bear a serial number.

Finally, one high-level issue at play in ghost-gun cases is the fact that there is a historical tradition of manufacturing firearms outside of any system of government tracking or mandated serialization.  For example, as Joseph Greenlee describes in a recent law review article, Americans have long built their own firearms—including to supplement industrial arms production during the Revolutionary War—and “restrictions on self-made arms have been rare throughout American history.”  Laws prohibiting groups like felons and the mentally ill from possessing guns were also rare or unknown during most of American history.  But common sense dictates that, if the U.S. is to continue to have a legal framework where certain groups (including violent felons, those convicted of domestic violence misdemeanor offenses, and the mentally ill) are prohibited from possessing guns, it must also restrict the self-manufacture of guns in ways that it has not historically.  The Internet has fundamentally changed the landscape in this area, making it vastly easier for individuals to obtain parts and assemble working guns—surely the type of “dramatic technological change[ that] may require a more nuanced approach,” per Bruen.  It is difficult, if not impossible, to prevent prohibited persons from possessing guns if those individuals can acquire component parts legally and build guns themselves.  Any coherent theory of how the Second Amendment protects self-manufactured firearms should recognize this reality. 

Public Nuisance Liability and the Irrelevance of the Second Amendment

1. Introduction

In 2005, the U.S. Congress bestowed on gun makers and sellers broad immunity from civil lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA). Congress explicitly based this immunity on the need to protect Second Amendment rights, pitting defenders of those rights against victims of criminal gun violence seeking to hold gun merchants accountable for their role in such violence. But a contest between civil liability for gun makers and sellers and respect for Second Amendment rights is neither inevitable nor necessary. As a new effort to ground civil liability in state legislation shows, the theory underlying the litigation that precipitated PLCAA has nothing to do with the rights secured by the Second Amendment. It may be politically expeditious or commercially advantageous for the gun industry to link the two, but the link is not legally sound.

States have begun to consider and pass statutes that codify the public nuisance theories of civil liability that animated a wave of litigation against gun industry actors in the late 1990s and early 2000s.  New York has already enacted such legislation.  A similar bill has been introduced in California.  The New York law identifies precise ways in which the conduct of gun makers and sellers can, in combination with unlawful use of their products, constitute a public nuisance. It therefore invites renewed attention to the issue that Congress identified as the central basis for PLCAA: whether there is any threat to Second Amendment rights from litigation premised on the theory that manufacturers who create an overabundance of guns with excessive criminal appeal create a public nuisance. By codifying the precise elements of a cause of action based on this theory, New York’s statute makes it easy to show it does not.

2. Public Nuisance Suits Before PLCAA

In the early 2000s, gun merchants got nervous. They were losing some appellate motions to dismiss suits claiming that they had created a public nuisance by channeling into particular localities streams of cheap handguns especially suitable for criminal use. These rulings brought cases to the brink of pretrial discovery and jury consideration as to whether gun makers and sellers were making public spaces excessively unsafe by encouraging criminals to obtain and use certain guns. If the answer was yes, injured plaintiffs would be entitled to remedies, including damages and injunctions requiring gun makers and sellers to change their conduct in specific ways.

Though some appellate courts ruled that plaintiffs bringing this sort of claim were failing to state claims under state law, the survival of other nuisance suits motivated the gun industry and its trade associations to lobby Congress to extinguish injured parties’ right to hold gun makers and sellers civilly accountable for their role in gun violence. The result was PLCAA. Upon its enactment, many courts — though not all of them —  dismissed pending public nuisance claims against gun merchants.

3. Making Public Nuisance Suits Compatible With PLCAA

PLCAA itself included some exceptions to its otherwise broad grant of immunity. One permits suit when a gun maker or seller has knowingly violated a statute applicable to the sale or marketing of a gun and thereby proximately causes a harm, even if a criminal actor also played a causal part.  This is sometimes referred to as the “predicate exception,” because to bring suit a plaintiff must first identify a “predicate statute” that governs the sale or marketing of the firearm used to inflict the harm. If a plaintiff can establish a gun maker’s or seller’s violation of the statute and show that the infraction was a legally significant cause of their harm, injured plaintiffs may avoid PLCAA’s prohibitions and possibly win a remedy from the maker or seller of the gun that caused their injuries, even if the gun was used by a criminal. Some courts have found that state statutory provisions barring unethical marketing and advertising practices supply the right sort of predicate. These provisions are part of state consumer protection legislation and are meant to prevent producers and sellers of goods from engaging in predatory and oppressive marketing and advertising.

Unlike these consumer protection laws, New York’s new public nuisance statute does not apply generally to makers and sellers of products. Instead, it pinpoints how the manufacturing, marketing, advertising, and distribution of guns can constitute a public nuisance, precisely codifying the public nuisance theories underlying the lawsuits that PLCAA cites as reason for its enactment. New York’s legislated nuisance cause of action resolves the concern about judicially developed doctrine stated in PLCAA. Furthermore, the specificity of the New York statute serves to insulate it from objections that it is not especially related or applicable to gun makers’ and sellers’ conduct. Finally, the statute’s particularity also makes clear that its public nuisance cause of action is divorced from anybody’s Second Amendment rights.

4. The Rights Secured by the Second Amendment and the Provisions of New York’s Law

In District of Columbia v. Heller, the U.S. Supreme Court decided that the right to bear arms encompasses the right to bear them for purposes of individual self-protection, particularly in the home, as well as the right to bear them for purposes of maintaining a well-regulated militia. Whatever the merits of this interpretation of the Second Amendment, I take it as a given in the following analysis.

Two substantive provisions are at the heart of New York’s gun industry public nuisance statute.

  1. No gun industry member, by conduct either unlawful in itself or unreasonable under all the circumstances shall knowingly or recklessly create, maintain or contribute to a condition in New York state that endangers the safety or health of the public through the sale, manufacturing, importing or marketing of a qualified product.
  1. All gun industry members who manufacture, market, import or offer for wholesale or retail sale any qualified product in New York state shall establish and utilize reasonable controls and procedures to prevent its qualified products from being possessed, used, marketed or sold unlawfully in New York state.

Together these detailed, interlocking provisions plainly have nothing to do with anybody’s right or ability to own any particular firearm for purposes of self-protection. They are exclusively concerned with public safety and public health, two canonical examples of the sort of common rights whose transgression is at the core of public nuisance. The provisions leave open to gun makers and sellers all manner of conduct in the pursuit of the business of making, marketing, and distributing guns. The statute allows any conduct that does not knowingly and recklessly endanger the public health and safety via unlawful or unreasonable manufacturing and marketing practices. New York’s new law thus targets those who make and produce guns, not those who bear them, for the exclusive purpose of minimizing the unlawful use of guns, an activity not protected by the Second Amendment, with the overall objective of securing common rights to public safety and public health, rights wholly compatible with individuals keeping guns in their homes and using them for self-protection or participating in well-regulated militias.

In addition to its substantive provisions, the statute explicitly deems violations a public nuisance, regardless of whether offending gun makers and sellers acted with the purpose of causing harm. It then authorizes the state attorney general or a city’s corporate counsel to bring public nuisance causes of action to address infractions of the substantive provisions. Finally, it creates a private cause of action for public nuisance for those who suffer injury due to such violations. None of these measures have any more to do with Second Amendment rights than the substantive content of the statute does. Neither state nor local attorneys are authorized to sue anybody bearing any kind of arms. The statute does not create any cause of action that could be brought against an individual gun owner for possessing or using arms. The private cause of action can only be brought against gun makers and sellers for their conduct.  While it might be the case that the Second Amendment would afford gun makers and sellers some protections from some governmental action, it is well-established that nothing in Second Amendment jurisprudence requires government to allow possession of every type of firearm. Even if it were true that holding gun merchants civilly liable for conduct that proximately interferes with public rights to health and safety would prompt merchants to withdraw some firearms from the marketplace, that would not support a Second Amendment objection to a statute like New York’s.

If neither the procedural nor substantive provisions of New York’s law relate to anybody’s right to bear arms, one might wonder why this law prompts any discussion of the Second Amendment at all. That takes us back to PLCAA.

5. PLCAA and the Second Amendment

The findings and purposes section of PLCAA itself puts the Second Amendment front and center. The first two findings state the Second Amendment and what became Heller’s interpretation of it. Subsequent clauses take notice of the first wave of public nuisance suits brought against gun producers and sellers. Then the statute maintains the necessity of immunizing the gun industry from civil liability in order to protect Second Amendment rights. If, however, both the previously judicially recognized public nuisance causes of action and the emerging legislatively created ones rest on the same substantive legal theory, and that theory does not implicate the Second Amendment, Congress was either confused or dishonest when it cited a need to protect Second Amendment rights as the purpose of PLCAA.  Moreover, by justifying gun merchant immunity as a matter of Second Amendment rights, PLCAA itself suggests that when there is no threat to such rights, we should be unconcerned about civil liability actions against gun maker and seller liability regardless of whether these actions arise from common law or by statute.

In other instances where Congress has limited the availability of civil causes of action against products manufacturers, Congress has specified policy objectives thereby served. For example, when Congress eliminated products liability and medical malpractice causes of action in favor of an administrative compensation program for those injured by certain vaccines, it did so to ensure an adequate supply of vaccines and to streamline the compensation process for those legitimately injured by them. For the sake of a public health objective, Congress shielded vaccine makers and sellers and physicians from some civil causes of action, thereby attempting to lower the costs of producing and distributing a product involved in the public health objective. Public health is a policy goal, not a constitutionally protected civil right.

By the same token, Congress could permissibly decide that the sale and manufacture of guns, like the sale of and manufacture of vaccines, rationally serves a desirable policy goal, including the goal of promoting gun ownership and the active exercise of Second Amendment rights to self-protection in the home and participation in well-regulated militias. Congress might decide that a citizenry armed with guns serves a broader public interest in public safety or national defense. All these policy goals could ground immunity from public nuisance civil suits for gun makers and sellers. Without the need to defend conduct that would otherwise give rise to damage awards or incentives to invest in new technology and marketing strategies, gun makers and sellers save money. They might pass their savings along to gun purchasers directly in the form of lower prices or reinvest the savings into improving their products, creating more competition, which could also yield lower prices for gun consumers.

Perhaps these rationales seem implausible, but Congress has the right to legislate on the basis of flimsy reasoning. So long as granting immunity from civil liability respects equal protection and due process and is a proper exercise of Congress’s commerce clause power, Congress may limit access to court for parties who would otherwise be entitled to bring civil actions and shield manufacturers and sellers from liability to them. Had Congress simply and clearly wanted to prevent courts from hearing public nuisance claims against gun makers and sellers, it could have given garden variety policy reasons for this choice. Injecting the Second Amendment into PLCAA just confuses the issue.

6. Second Amendment Politics and Gun Industry Profits

As part of their marketing and advertising strategies, gun makers regularly identify themselves, their businesses, and their products with the Second Amendment. But the Second Amendment does not protect the profit margins of those who produce and sell guns. Nor does it protect the sale and manufacture of every possible firearm. Even if liability for public nuisance puts a dent in gun industry profits or if manufacturers and sellers decline to produce or distribute certain firearms, there is no constitutional basis for shielding gun merchants from liability for creating public nuisance.

Even the cheap handguns and assault weapons favored by criminals and mass shooters could still be made and sold without furnishing any basis for the sort of nuisance suit delineated by the New York statute. If they refrain from advertising and marketing geared especially to criminal users, and if they take reasonable measures to keep their wares from being used by criminals, then gun makers and sellers can continue to put inexpensive handguns and assault weapons into the stream of commerce for lawful use without exposing themselves to claims for public nuisance under statutes like New York’s.

Safeguarding Second Amendment guarantees does not require bolstering manufacturers’ and sellers’ profits derived from endangering public health and safety by stoking the unlawful, lethal, and injurious use of guns. In fact, PLCAA’s framing as a civil liberties statute does a disservice to those committed to the rights protected by the Second Amendment. The profit motives that drove the gun industry to lobby for PLCAA have nothing to do with preserving the freedom to protect oneself in one’s home or to participate in a well-regulated militia. To cloak a policy choice to favor the gun industry in concern for civil rights cheapens the rights in question. It makes pawns of those who authentically believe that guns have an important place in securing individual freedom and well-being, harnessing their commitments for the financial gain of commercial actors who go out of their way to create an overabundance of guns with excessive appeal to individuals who obtain and use them to unlawfully threaten, injure, and kill other people.  

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]

Commonality Redux

Many Second Amendment questions remained open after Heller. The Court clarified that the right to keep and bear arms guarantees a private, individual right to have a handgun at home for purposes like self-defense, but it left open a host of questions about where people can take their weapons, what weapons can be restricted, and which persons can be precluded from exercising the right altogether. For example, it left open where one can carry their arms in public, including what restrictions a state can put on public carry permits and how a state can limit guns from specific places. The Court shed little light on what types of firearms can be barred to individuals (like weapons categorized as assault weapons or high-capacity magazines) and what non-firearm weapons enjoy constitutional protection. And it didn’t resolve questions about whether particular individuals, like noncitizens or those subject to domestic violence restraining orders, can be constitutionally prohibited from possessing arms.

In the case pending before it right now—New York State Rifle & Pistol Association v. Bruen—the Court is likely to answer at least some of the where questions, though an important set of questions about sensitive places will likely remain. By contrast, the Court has shown almost no interest in who questions, denying cert in all these types of questions that reach the Court, not even holding such petitions pending other cases it has taken (NYSRPA and Bruen). But the what questions appear to be on deck.

Of the two Second Amendment cert petitions the Court is holding for Bruen, one directly confronts this question, while the other is about another aspect of public carry. That what case—Association of New Jersey Rifle & Pistol Clubs v. Grewal—challenges New Jersey’s ban on magazines that hold more than 10 rounds of ammunition. Another new cert petition that has not yet completed briefing is Bianchi v. Frosh, a challenge to Maryland’s ban on select semi-automatic firearms that it classifies as assault weapons. The Fourth Circuit upheld the law in 2017 in Kolbe v. Hogan on the ground that the regulated assault weapons fall outside the scope of the Second Amendment. Bianchi challenges that conclusion and the lower courts’ broader approach to deciphering which weapons get constitutional protection.

In an amicus brief submitted at the certiorari stage, several Second Amendment experts and organizations (including several scholars I call friends, even though we don’t always see eye-to-eye) argue in favor of granting cert and against the lower court approaches. The brief addresses at length the signers’ understanding of the best way to flesh out the “common use” test. That test derives from Heller’s gloss on the Supreme Court’s 1939 decision in United States v. Miller. The Miller case upheld the National Firearms Act against a Second Amendment challenge, declaring short-barrel shotguns unprotected arms. In the course of discussing the purpose and scope of the Second Amendment, the unanimous Miller Court said:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. (emphasis added)

After quoting some of this language, Heller says, “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” But that was not all. Heller also leveraged Miller to create another caveat to its finding of an individual right:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the 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.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. (citations omitted)

Lower courts have had some difficulty deciphering just what this language covers. The amicus brief argues that Heller creates a presumption that all bearable arms are protected, which can be rebutted by showing that an arm is both dangerous and unusual. It then includes a variety of metrics (noting lower court disagreement among which to use) for deciding commonality: total number of weapons, the number of jurisdictions in which they can be lawfully possessed, and what percentage of the total “arms stock” the regulated weapon makes up. It argues that all these factors support a finding of commonality for the firearms designated as assault weapons under Maryland law.

The brief—as appropriate for an advocacy document—takes the Court’s common use test as a given. But there are serious conceptual issues with the test as formulated by the Heller Court and employed by the advocates, including the brief writers. For one, as Judge Frank Easterbook noted in a Seventh Circuit case, “it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.” So commonality—and thus constitutionality—seems dependent on how quickly states act to regulate, which is an odd way to think about how constitutional rights work. (See also Justice Breyer’s similar point in Heller: “On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.”).

Another related difficulty is the question of timing. When is commonality measured? If a particular type of weapon is popular today, a ban on its possession is unconstitutional. But that leaves open the possibility that the exact same ban might have been constitutional in the past when the particular weapon was not commonly possessed—or could possibly be constitutional again the future if the weapon falls out of favor. In this context, we could echo Justice Scalia’s question to those asserting a right to same-sex marriage: “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” Exasperated by the lack of a date, Justice Scalia emphasized: “It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.” So, to repurpose the question for originalist Second Amendment adherents, when did it become unconstitutional to ban AR-15s? 1791? 1868? 1881, when the brief suggests self-loading technology at heart of semiautomatics was perfected: “All semiautomatics ‘descend from’ the models of the1880s”? When AR-15s were first invented? When they reached the quantum of commonality?

Next, consider the issues of classification. The brief does address this question, arguing that legislatures cannot ban “classes” of arms that are in common use. And it states that lower courts—including the Fourth Circuit—are improperly slicing up classes of arms into small subgroups. Instead, it argues, “the Supreme Court performs the commonality analysis at the ‘sort,’ ‘kind,’ or ‘class’ level,” and so “lower courts should not have upheld prohibitions of a subclass (or subsort or subkind) of rifles.” Why “rifles” is the class rather than “long guns” is not entirely clear, but the signers do specify that “handguns” is how they understand the class of arms designed to be held with one hand and its subtypes (rather than their own classes) are revolvers and semi-automatic pistols.

Finally, consider the ambiguity in the commonality question. Is commonality a question of possession, so that a sufficiently commonly owned weapon is absolutely protected, or is it about use, so that a weapon has to be commonly used in some manner before the designation applies? And if the latter, which uses qualify? Only those that constitute uses protected by the Second Amendment or does any lawful use qualify? (The amicus brief argues for the latter.) Does carrying constitute use or does use mean use as a weapon, such as use for target shooting, hunting, or brandished or discharged in self-defense? And why, apart from arguments about the best reading of Heller, would the choice among any of these alternative formulations be theoretically justified?

The Supreme Court is unlikely to answer any of these questions in Bruen, but it will need to address them when it confronts a what question—whether in ANJRPC or Bianchi or another case.

Bump Stocks Remain a Hot Topic in the Federal Courts

A three judge panel of the Fifth Circuit upheld the federal bump stock ban yesterday. In a post last Wednesday, I noted how the Sixth Circuit en banc had split evenly on the legality of the bump stock ban, leaving in place the trial court’s decision upholding the regulation. The question doesn’t appear to be going away, with several circuits having weighed in during en banc sittings. And, as we’ve highlighted on the blog, there’s currently a cert petition on the topic pending with the Supreme Court. 

The Fifth Circuit’s opinion sidesteps some of the harder questions the case posed in other circuits. For example, one question raised in other contexts is whether an agency is entitled to Chevron deference when a statute carries a criminal penalty. Another is whether an agency may waive any entitlement to Chevron deference during the litigation. But those questions arise when a court considers a statute to be ambiguous and therefore affords (or not) the agency charged with implementing the statute some deference as it construes the statute. Here, the panel found that DOJ’s bump stock ban constituted the best reading of the statute, making any question of deference unnecessary. 

It’s not clear whether the challengers will seek en banc review in the Fifth Circuit or head straight to the Supreme Court, but it’s clear that if the Court wants to tackle this issue, it has a lot of cases to choose from. Here’s how the Fifth Circuit (helpfully) described the active litigation:

Three other circuits have also rejected challenges to the Bump Stock Rule. In April 2019, the D.C. Circuit denied a motion for a preliminary injunction against the Rule, concluding that the statutory definition of “machinegun” is ambiguous and that the Rule is entitled to Chevron deference. Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1 (D.C. Cir. 2019) (per curiam). One judge dissented, arguing that the Rule contradicts the statute’s plain language. Id. at 35 (Henderson, J., dissenting). The Supreme Court denied certiorari, 140 S. Ct. 789 (2020), though Justice Gorsuch issued a statement arguing that the Rule is not entitled to Chevron deference. Id. at 789-91 (Gorsuch, J., statement regarding denial of certiorari). In May 2020, the Tenth Circuit denied another motion to preliminarily enjoin the Rule, for similar reasons as the D.C. Circuit. Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020). Four months later, the Tenth Circuit vacated that opinion and granted a rehearing en banc, 973 F.3d 1151 (10th Cir. 2020) (en banc), but it subsequently reversed course, vacating the order granting rehearing en banc and reinstating the original panel opinion. Aposhian v. Wilkinson, 989 F.3d 890 (10th Cir. 2021) (en banc). Five judges dissented from the decision to vacate the en banc order. Id. at 891 (Tymkovich, C.J. dissenting, joined by Hartz, Holmes, Eid, and Carson, JJ.). The plaintiff in that case has filed a petition for certiorari in the Supreme Court. Petition for Writ of Certiorari, Aposhian v. Garland, No. 21-159 (U.S. Aug. 4, 2021). Finally, in March 2021, a Sixth Circuit panel granted a preliminary injunction against the Rule, holding that the Rule is not entitled to Chevron deference and is not the best interpretation of the NFA. Gun Owners of Am., Inc. v. Garland, 992 F.3d 446, 450 (6th Cir. 2021). However, the Sixth Circuit vacated that decision, 2 F.4th 576 (6th Cir. 2021) (en banc), and an evenly divided en banc court affirmed the district court’s judgment upholding the Rule. No. 19-1298, — F.4th —-, 2021 WL 5755300 (6th Cir. Dec. 3, 2021) (en banc); see Gun Owners of Am. v. Barr, 363 F. Supp. 3d 823, 826 (W.D. Mich. 2019).

Bump Stock Ban Heading for the Supreme Court (Again)

As I mentioned earlier this week, the en banc Sixth Circuit failed to reach consensus on the legality of the Trump Administration’s ban on bump stock devices, which convert semi-automatic firearms into weapons that can approximate the rate of fire of an automatic firearm. (If you’re unfamiliar with the operation of bump stocks, I’ve found this YouTube video illustrating one helpful.) In Gun Owners of America v. Garland, the full court of appeals split evenly, 8-8, on the regulation’s validity and therefore the lower court decision upholding the law was affirmed. 

Key to the case, as administrative law scholar Jonathan Adler explained, are questions that often bedevil courts in the context of agency regulations: whether the regulation properly interprets the statutory provision it relies on and whether and when to defer to the agency’s views on the best interpretation. Here, the regulation re-interprets what qualifies as a machinegun under federal law, now including bump stocks in that definition. Because that federal law carries criminal penalties, some judges have argued that that Chevron deference–the deference courts generally afford an agency interpreting an ambiguous federal statute–does not apply at all. 

The Supreme Court was schedule to consider another case addressing the bump stock issue–this one from the Tenth Circuit–at its conference this Friday. Now, there is simply a notation on the docket saying “rescheduled.” With the GOA case coming down this week, it may put more pressure on the Court to resolve the issue once and for all. 

En Banc Ninth Circuit Upholds California’s Large-Capacity Magazine Ban

In a major decision issued yesterday, the en banc Ninth Circuit upheld California’s ban on large-capacity magazines. By a 7-4 vote in Duncan v. Bonta, the court ruled that intermediate scrutiny applied to California’s law and that the provision was a reasonable fit with the government’s goal of preventing gun violence. I’ve previously written about the district court decision striking down the ban here and the original appellate panel affirming that decision here and here. The Supreme Court is already holding one case concerning large-capacity magazines, and Duncan may increase the chances the Court decides to hear that case.

We’ll be writing more about the case, and especially the interesting back-and-forth over the merits of the Two Part Framework vs. the Text, History, and Tradition test, but for now here is the Ninth Circuit’s description of its holding in the case:

[W]e hold:

(1) Under the Second Amendment, intermediate scrutiny applies, and section 32310 is a reasonable fit for the important government interest of reducing gun violence. The statute outlaws no weapon, but only limits the size of the magazine that may be used with firearms, and the record demonstrates (a) that the limitation interferes only minimally with the core right of self-defense, as there is no evidence that anyone ever has been unable to defend his or her home and family due to the lack of a large-capacity magazine; and (b) that the limitation saves lives. About three-quarters of mass shooters possess their weapons and large-capacity magazines lawfully. In the past half-century, large-capacity magazines have been used in about three-quarters of gun massacres with 10 or more deaths and in 100 percent of gun massacres with 20 or more deaths, and more than twice as many people have been killed or injured in mass shootings that involved a large-capacity magazine as compared with mass shootings that involved a smaller-capacity magazine. Accordingly, the ban on legal possession of large-capacity magazines reasonably supports California’s effort to reduce the devastating damage wrought by mass shootings.

(2) Section 32310 does not, on its face, effect a taking. The government acquires nothing by virtue of the limitation on the capacity of magazines, and because owners may modify or sell their nonconforming magazines, the law does not deprive owners of all economic use.

(3) Plaintiffs’ due process claim essentially restates the takings claim, and it fails for the same reasons.

Observations Regarding the Interpretation and Legacy of the Statute of Northampton in Anglo-American Legal History

The Statute of Northampton of 1328 remains central to the current debate surrounding the limits and protections the Second Amendment provides to carry arms in public.[1] The Statute provided that “no man great nor small, of what condition soever he be, except the king’s servants in his presence…come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers” (2 Edw. 3, c.3). Certain Second Amendment scholars hold that the Statute was “not interpreted literally” and was only enforced when weapons were carried with the intent to terrify or threaten or when dangerous and unusual weapons were carried.[2] While the Statute has been much studied, some key sources remain neglected, namely the reliance of Sir. Edward Coke on 13th Century English legal scholar Henry de Bracton in Coke’s interpretation of the Statute. Coke’s quotations from de Bracton, which have usually been ignored because they are written almost entirely in Latin, offer additional evidence that the Statute of Northampton was understood to be a broad-based prohibition on the carrying of arms.

As one of the most respected and celebrated jurists of the Elizabethan and Jacobean eras, Edward Coke’s interpretation of laws has remained influential in the understanding of both British and American constitutional law. In his Institutes of the Lawes of England, written between 1628 to 1644 as a series of legal treatises, Coke offers his understanding of a wide variety of legal issues that bear relevance to contemporary law, including the definition of monopolies and regulation of abortion. Coke also provides an analysis of the Statute of Northampton. In his explanation of the prohibition on coming before royal officials with “force and armes,” he refers to the interpretation of different types of forces by the 13th-century jurist Henry de Bracton, citing vis armata, or armed force as “pertinent to our people,” and therefore relevant to the interpretation of the statute. Coke goes on to cite verbatim Volume 3, p.20 of de Bracton’s On the Laws and Customs of England, which describes the various types of forces (in Latin, vis) and what constitutes these forces. De Bracton particularly focuses on what constitutes “vis armata [armed force].” A text and translation of Coke’s interpretation of the Statute of Northampton and his interpolation of de Bracton are provided below:

“[To come before the Kings Justices, or other the Kings ministers doing their office with force and armes.] Bracton doth notably write of the diversity of forces; viz; that is to say expulsive force, pertaining to pertnbativa [force], pertaining to disquieting [force], ablative force, compulsive force and others, which you may read in him. And then (which is pertinent to our people) he saith: There is also armed force ([one] is deprived of arms, I say, if there was armed force of any kind) not only if one comes with weapons, but truly also we designate those armed, who have something with which they are able to harm. All things by which individual people are able to harm are accepted by the name of weapons: but if someone should come without arms and in a brawl itself pick up wood, sticks and stones, such things it is said armed force; If someone comes with arms, but puts them down without using them, armed force is said to have happened; Even the threat of arms suffices as it seems to be force with arms. Agreeing with that of the poet, ‘And now fire and rocks fly, fury provides weapons’”

De Bracton, as cited by Coke, explains what constitutes armed force both in regard to the intent and types of weapons, two central issues in interpreting the Statute of Northampton. De Bracton understood the term weapon very broadly, explaining that  armed force existed “not only if one comes with weapons, but truly also we designate those armed, who have something with which they are able to harm.” De Bracton’s interpretation is that the mere presence of any weapon was considered armed force, regardless of the type of weapon at hand. Indeed, de Bracton takes this a step further opining that “if someone should come without arms and in a brawl itself picks up wood, sticks, and stones, such things it is said armed force.” De Bracton thus suggests that nearly anything could be considered a weapon and be used for armed force, and Coke by extension in quoting de Bracton suggests that the Statute of Northampton’s jurisdiction is not limited to certain strange or unusual weapons.

De Bracton also addresses the issue of whether armed force is dependent on the intentions of the user. He explains that “If someone comes with arms, but puts them down without using them, armed force is said to have happened; Even the threat of arms suffices as it seems to be force with arms.” To de Bracton and Coke, the usage of armed force is clearly not limited by an intent requirement. The presence of weapons is sufficient to constitute the conduct of armed force. Coke, therefore, uses this broad understanding of the meaning of armed force to explain the scope of the Statute of Northampton’s prohibition.

This understanding of the Statute of Northampton is consistent with examples of the enforcement of the Statute which I newly uncovered in archival research that have been preserved and recorded online in the British National Archives, as well as the Old Bailey and other smaller libraries and archives. For example, in a 1478 case, a writ was authorized under the authority of the Statute of Northampton to gather nearby men to “proclaim at Dalton near Rotherham against assemblies of armed men….in consequence of recent attacks on dwellings.”[3] In a later case, a plaintiff [Agnes Newman] used a writ “based upon the Statute of Northampton de armis non portandis [about not carrying arms]” to sue for an unlawful ejection from her land that she was tending.[4] Even later in 1602, a writ was issued by Elizabeth I to arrest “John Fitzwilliam, of London, esq. and certain other evil-doers, armed and arrayed for war, [who] have forcibly entered the park of William Fitzwilliam esq. and seized etc his goods, rents…contrary to the Statute of King Edw.III. against carrying arms against the peace.”[5]  Although the first case of the 1478 writ was probably drawn up in response to a malicious threat, there is otherwise little evidence to suggest that the issue of malicious intent or dangerous weapons was central to the enforcement and practice of the Statute of Northampton. Instead, these cases suggest that the Statute likely adhered closely to the broad prohibitory interpretation of Coke and de Bracton.

We can see based on these enforcement and jurisprudential documents that the historical and socio-legal context of the Statute of Northampton suggests that the Statute’s enforceability was wide-ranging across an array of different types of armed force and intentions. Barring the exception of the King’s servants and officials specifically stated in the Statute, the Statute and its enforcement made no exception for any types of armed force to be permissible, nor did it make any distinction between the motives of the user of armed force. These additional documents and cases solidify the idea that the Statute of Northampton was a broad prohibition on the carrying of arms in public. As the Supreme Court considers the issue of the public carrying of arms in the New York State Rifle & Pistol Association Inc. v. Bruen, the court should look no further than the Statute of Northampton, its interpretation by Coke and de Bracton, and the Statute’s enforcement.[6] In so doing, the court should find that the 1689 English Bill of Rights did not guarantee the absolute right to bear arms, and governmental authorities and bodies were within their right by means of the Statute of Northampton and later legislation to restrict and prosecute the carrying of arms in public by private citizens.


[1] Jennifer Tucker, Barton C. Hacker, and Margaret Vining, eds., A Right to Bear Arms?: The Contested Role of History in Contemporary Debates on the Second Amendment (Washington, D.C: Smithsonian Institution Scholarly Press, 2019).

[2] David Kopel, “Opinion | English Legal History and the Right to Carry Arms,” Washington Post, accessed August 25, 2021, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/10/31/wrenn-history/.

[3] Catalogue description, “Warrant of Rob. Ryther, kt., upon Crown writ, authorizing John Leek, Thos. Boswell and…” (October 31, 1478), DD/FJ/5/8/6, Nottinghamshire Archives. https://discovery.nationalarchives.gov.uk/details/r/7be1ef9f-a047-4082-b2c8-e17179c4462a

[4] Catalogue Description “Short Title: Newman v Newdygate. Plaintiffs: Agnes Newman, Widow, Guardian in Socage Of…” (1529-1518), C 1/548/29, The National Archives, Kew. https://discovery.nationalarchives.gov.uk/details/r/7be1ef9f-a047-4082-b2c8-e17179c4462a

[5] Catalogue Description, “Writ of Eliz I to the Guardians of the King’s Peace and the Sheriff of Essex That -…” (July 14, 1602), F(M) Charter/1745, Northamptonshire Archives. http://discovery.nationalarchives.gov.uk/details/r/c79f7b72-f282-4f1c-8bce-e8d7bcea01ae

[6] New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al. No. 20-843. https://www.supremecourt.gov/docket/docketfiles/html/public/20-843.html

The Continuing Relevance of the Saturday Night Special

Mister Saturday Night Special / Got a barrel that’s blue and cold / It ain’t good for nothing but puttin’ men six feet in a hole

“Saturday Night Special,” Lynard Skynyrd, 1975

Today, reference to a “Saturday Night Special” is rarely heard outside of old films or perhaps among vintage firearms enthusiasts. Rather than a specific make or model, Saturday Night Special is a catch-all term used to refer to a small, cheap, and usually small-caliber handgun often associated with criminality. While hardly mentioned today, these firearms were at one point at the forefront of American gun debates. This post will describe the background of federal restrictions on Saturday Night Specials enacted as part of the Gun Control Act of 1968. It will then discuss why this interesting chapter of American gun law history—which was even discussed in a recent Supreme Court amicus brief—remains relevant to modern observers.

The Gun Control Act of 1968

One of the many policies debated and included in the final version of the Gun Control Act (GCA) of 1968 was a provision intended to ban the importation of Saturday Night Special-type weapons. While the ultimately successful restrictions on interstate firearm purchases and multiple failed gun registration proposals garnered the most vociferous debates, members of Congress from both parties railed against the scourge posed by Saturday Night Special handguns. Although some opponents would eventually question the logic of the importation ban as well as its impact on gun violence, there appeared to be widespread consensus that these weapons were uniquely dangerous in one way or another. Senator Tydings of Maryland portrayed Saturday Night Special ownership as an urban blight distinct from “good” gun ownership, invoking a then-widely covered Chicago area street gang associated with black nationalism. “It is a far different problem when a member of the Blackstone Rangers gang in a big city purchases a Saturday-night special for $5.50 than when a rural citizen living on the Eastern Shore of Maryland or Idaho or Montana wants to purchase a gun,” Tydings claimed. Many cited alarming figures from law enforcement sources, such as Sen. Dodd’s claim that “the chief of police of Atlanta, Georgia, said that more than 80 percent of criminal guns confiscated from arrestees were foreign made, cheap $5 or $10 Saturday Night Specials, as they call them.” Others were even more direct in their frightening characterizations, such as Sen. Pastore’s description of Saturday Night Specials as “cheap guns which can be bought by cheap hoodlums to kill people with.” Summarizing the discussions of Saturday Night Specials in his comprehensive legislative history and assessment of the GCA of 1968, Professor Franklin Zimring succinctly noted that

Testimony before Congress suggests three themes associated with these guns: (1) they were cheap and plentiful; (2) they were low-quality and unsafe; (3) they were used in violent crimes. The image projected was not just that of a gun but of a gun and a user class. And the goal implicit in the legislation was to reduce access to guns for high-risk groups by restricting the supply of cheap guns, particularly cheap handguns.

The GCA of 1968 sought to achieve this restriction in supply through § 925(d) of the enacted GCA of 1968, which established new limits on the importation of firearms into the United States. Specifically, § 925(d)(3) allowed importation of a weapon for commercial sale only if the Secretary of the Treasury determined that it “is of a type that does not fall within the definition of a firearm as defined in section 5845(a) of the Internal Revenue Code of 1954 [the revised National Firearms Act] and is generally recognized as particularly suitable or readily adaptable to sporting purposes, excluding surplus military firearms.”

The problem, however, was that the legislation neglected to offer any further definition or even guidance as to what specific characteristics made an imported weapon “particularly suitable for or readily adaptable to sporting purposes.” As such, the IRS, the agency tasked with implementing and administering most of the act’s key provisions, developed its own system of assessment for imported handguns, which it eventually documented in Form 4590, “Factoring Criteria for Weapons” (Zimring p. 165). Factors considered included barrel length, type of construction, weight, and safety features, as well as a minimum size. Potential imports were scored based on these factors; to be eligible for importation, revolvers required a score of 45 or above and automatics a score of 75 or above.

Unsurprisingly, this grading system allowed for arbitrary determinations of importability; comparing two nearly identical handguns, one could be deemed a Saturday Night Special unfit for import and the other deemed “suitable for sporting purposes” simply because of a one-ounce weight difference. Adding to this sense of arbitrariness, the IRS never explained its factoring criteria or the logic behind them in any public documents (Zimring, p. 166). In his assessment of the law several years after its passage, Professor Zimring described “the persistent nondefinition of the key terms in the controlling federal law” as “remarkable;” in his assessment, however, “a major share of the responsibility for this state of affairs belongs to the draftsmen of section 935(d) and to Congress” rather than IRS officials alone (p. 166).

Section 925(d) failed to significantly curb the numbers of Saturday Night Special-type handguns imported into the United States. While observers noted that the IRS’ new import criteria “obviously hit the cheaper foreign handguns the hardest,” handguns of all types continued to enter the United States in large volumes.  After briefly dipping in 1969-70, handgun import data show that imports started to exceed pre-1968 volumes by 1971. (Zimring, p. 169). The law also appears to have contributed to a significant uptick in domestic manufacture of handguns, especially cheaper ones, which helped offset the imports lost to the IRS’ factoring criteria (p. 169-70). Some of this domestic manufacturing was enabled by the fact that § 925(d) did not limit the importation of Saturday Night Special parts, enabling some firms to assemble foreign parts in American production facilities; by 1973, imports of Saturday Night Special parts had risen from a volume of 18,000 parts in 1968 to 568,500 parts, enough to assemble more than 1 million handguns per year (The Saturday Night Special, p. 304). This production would continue for decades, most notably through six Los Angeles-area manufacturers known as “the Ring of Fire” that by 1992 produced 34% of all American-made handguns.

Congressional gun control advocates attempted to pass further legislation to remedy § 925(d), even holding a series of hearings on Saturday Night Specials in fall 1971. Several approaches were considered, including extending the import criteria to domestic handguns or establishing a  national testing protocol for domestically produced handguns, but none came close to enactment (Zimring, p. 173).

Continued Relevance

Today, Saturday Night Specials are no longer a hot topic in the national firearms debate. However, the history may nonetheless be relevant to modern firearms law observers for several reasons.

First, the history of Saturday Night Special restrictions raises questions about gun restrictions that appear to target a certain class of gun user. As scholars and advocates seek to emphasize the history of gun control as a tool of racial discrimination, the saga of the Saturday Night Special may serve as a compelling case study. A recent Supreme Court amicus brief filed by Black Guns Matter in support of the petitioners in New York State Rifle & Pistol Association v. Bruen explored this line of argument, describing Saturday Night Special restrictions as “one more thread in [the] deeply discriminatory tapestry” of American gun law history:

This unspoken intent [to exclude ‘unsavory’ groups from owning firearms] seeped into the federal regulation of firearms by 1968, following the assassinations of Robert Kennedy and Martin Luther King, Jr… [t]he new federal laws targeted so-called “Saturday Night Specials,” which were small affordable handguns popularized in African American and minority communities. (citation omitted)

It is difficult to escape the conclusion that the “Saturday night special” is emphasized because it is cheap and is being sold to a particular class of people.’” (citation omitted).

How such arguments might factor into how courts assess Second Amendment cases remains an open question. However, in recent years several Justices have authored opinions expressing an interest in the discriminatory history of some of the laws under review even when it is unclear how that history is relevant under existing doctrine, such as Justice Thomas’ concurrence in Box v. Planned Parenthood of Indiana and Kentucky (recounting the historical links between 20th century eugenicists and early abortion advocates in a case over new abortion restrictions) or Justice Alito’s concurrence in Espinoza v. Montana (describing the history of anti-Catholic sentiment and 19th century Nativism in an education voucher case). Given this trend, it seems quite possible that one or more Justices will incorporate some discussion of discriminatory firearms laws into an opinion in Bruen.  

Second, the Saturday Night Special saga illustrates the difficulties of statutorily defining a nebulous style of firearm, particularly when that style of firearm carries with it a range of strong connotations. Disagreement over statutory definitions continues to this day, most notably with respect to firearms classified as “assault weapons.” Assault weapons have for some time been a lightning rod in gun control debates, and like the Saturday Night Special, these firearms have become a key target for gun control advocates who view them as a uniquely dangerous class of firearm. Also like the Saturday Night Special, defining what exactly constitutes an assault weapon has been the subject of fierce debate that carries important implications. The 1994 assault weapons ban, which expired in 2004, defined assault weapons as a “semiautomatic rifle that has an ability to accept a detachable box magazine” and at least two of five listed features including “a folding or telescoping stock,” “a pistol grip that protrudes conspicuously beneath the action of the weapon,” a threaded barrel or flash suppressor, and more. Like the IRS Factoring Criteria for Saturday Night Specials, however, these criteria resulted in arguably arbitrary classifications, and minor design modifications by manufacturers could render otherwise prohibited weapons permissible. Furthermore, critics have argued that many of the features that legally render a firearm an assault weapon are “cosmetic” in nature and that there is little meaningful difference between weapons designated as assault weapons and other semi-automatic rifles. 

Third, the history of Saturday Night Special regulation illustrates the perils of enacting restrictions focused on a certain type of firearm without a rational articulation of why that type warrants special regulation. The core premise that Saturday Night Specials were more dangerous or lethal than other handguns does not bear much scrutiny. While they may have been concealable, so were many other more expensive handguns; furthermore, other key characteristics such as their low caliber, cheap construction, and lack of reliability could reasonably be said to make these guns less lethal, not more. As Professor Zimring concluded, “the attack against cheap imported handguns was powerful but pitifully underinclusive. Handguns retailing for under $50 are a major public safety problem—but so are those retailing for over $50.” (p. 166). Another contemporary assessment from journalist Robert Sherrill, himself a vocal gun control proponent, was even more scathing, predicting that “history will not support the snooty caste-consciousness in gun traffic. All guns are terrible, no doubt, but one kind no more than others” (The Saturday Night Special, p. 321).

Because § 925(d) was never the subject of any high-profile litigation, such criticism of the rationale behind it was largely limited to observers like Zimring and Sherrill rather than the courts. Post-Heller, however, the bar for such a rationale to survive judicial scrutiny appears to be even higher. While the poor drafting and muddled rationale of § 925(d) might make the provision more questionable today today, the U.S. District Court for the Southern District of California’s recent decision in Miller v. Bonta raises questions about whether policy-makers can enact blanket restrictions on certain types of commonly-owned guns at all. That decision, which overturned California’s 30-year-old ban on assault weapons, held that governments bear the burden of proving that a type of firearm is sufficiently “uncommon and dangerous” to warrant restriction, before which such firearms are presumptively lawful to own. The court went on to hold not only that California’s proffered evidence failed to demonstrate that assault weapons were disproportionately used in crime, but that “more importantly, disproportionality is not a constitutional test.” Should Miller become widely-cited precedent, restrictions on a type of weapon predicated on disproportionate use in crime may soon seem as anachronistic as the initial furor over Saturday Night Specials.

On Cedar Point Nursery and Firearm Regulations

On June 22, the Ninth Circuit heard oral arguments in Duncan v. Bonta. The bulk of the arguments regarded the challengers’ claim that California’s large capacity magazine (LCM) ban violates their second amendment rights. Judge Paul Watford, however, focused on their takings claim, training all six of his questions to both sides on the subject. The next day, on June 23, the Supreme Court issued its Cedar Point Nursery decision – altering (or clarifying, depending how you view it) existing takings jurisprudence.

The statute at issue in Bonta, California Penal Code’s § 32310, bans the possession of LCMs, and it does not exempt those who already lawfully owned one. California required preexisting owners to take one of four actions: remove their LCMs from the state, sell them to a licensed dealer, submit them to law enforcement, or modify them to comply with the regulation.

The challengers argued that the regulation constitutes a per se physical taking. They liken the case to Horne v. Department of Agriculture, in which the Supreme Court held that a state regulation compelling raisin farmers to surrender a portion of their raisins to the government was a per se physical taking. The challengers argued in their briefs that the forced surrender of property, even to a private dealer or to a different state, is equivalent to a government seizure for takings purposes. Furthermore, they argued that LCM owners who comply by limiting the capacity of their magazines is akin to the raisin farmers turning their grapes into wine in Horne; the Supreme Court there determined that this option for compliance did not forestall the takings issue because property rights “cannot be so easily manipulated.”

The state, in briefing and oral arguments, underscored the variety of ways that LCM owners can comply with the regulation short of surrendering possession. During oral arguments, Judge Watford asked the Assistant Attorney General about the process of modifying LCMs to comply with the law; he noted the existence of do-it-yourself videos online and the low cost of fillers that reduce magazine capacity to the legal limit (approximately six to seven dollars). Furthermore, the state distinguished Horne because modifying the size of the magazine doesn’t affect the owners’ ability to retain and use their property for the same lawful purposes.

It should be noted that the Third Circuit rejected a takings claim in a factually similar case, Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey.

Judge Watford did not specifically invoke the then-pending decision in Cedar Point Nursery, but the Court’s decision will nonetheless bear significantly on the parties’ arguments in Bonta. In Cedar Point Nursery, the petitioners challenged a California regulation which required agricultural employers to allow union organizers onto their farm on a limited, but substantial basis. Until now, the Court has distinguished between physical occupations which are temporary/limited and those which are permanent; only permanent physical occupations have been per se takings and have required just compensation. Though California’s access regulation was limited, the Court in Cedar Point Nursery found that it was a taking because it “appropriate[d] a right to invade the growers’ property.” The decision in Cedar Point Nursery thus expanded this category of per se takings to include appropriations of core property rights.

This doctrinal development likely supports a new argument for the challengers beyond Horne. Following Cedar Point Nursery, California’s LCM regulation might “appropriate” preexisting owners’ rights to possess their property without damage or seizure. Takings jurisprudence is currently unclear whether the distinction between real property (as in Cedar Point Nursery) and chattel (as in Bonta) is significant for takings purposes, but Chief Justice Roberts’ majority opinion in Horne seems to support the notion that they should be treated the same: “[t]he Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.”

To be clear, a ruling that § 32310 is a taking would not make the LCM ban unconstitutional, it would merely require payment of “just compensation” to all preexisting owners. The implications are potentially vast, however. States frequently ban items when their use is determined too dangerous: notable examples include bump stocks, Four Loco, and anabolic steroids. Furthermore, the bundle of entitlements that property owners possess is wide and somewhat nebulous; if “appropriation” of a core property right is grounds for a taking, these cases might grow ubiquitous. Bans such as California’s may have just become much more onerous for the taxpayer.

“Nomological Desperation”: What’s Common in Second and Eighth Amendment Doctrines?

As interpreted by the Supreme Court in Heller, the Second Amendment protects arms that are in common use by law-abiding citizens for lawful purposes. Yesterday, an en banc panel of the Ninth Circuit heard oral arguments in Duncan v. Bonta, a Second Amendment challenge to California’s ban on ammunition magazines that hold more than 10 rounds—also known as large-capacity magazines or LCMs (see my earlier posts on the case here & here). Counsel for the challengers stressed that constitutional protection (absolute, in her view) attaches once an “arm” reaches commonality. When an arm is chosen by the American people in sufficient numbers, a state cannot ban it. After listening to the arguments, Joseph, Darrell, and I—along with one of the Center’s fantastic summer research assistants, Noah Levine—tried to brainstorm other contexts in which the threshold question in a constitutional case—the question of whether the Constitution comes into play—relies on counting or commonality. One analogy we found was to the Eighth Amendment’s bar on cruel and unusual punishment. The more we talked about it, the more some interesting parallels began to surface.

The “common use” test derived from Heller is intuitive, but becomes hard to parse in particular situations. Although I have not seen an answer to the question be determinative in a major Second Amendment case, the test alone opens a can of worms about what counts as common use. As some of the Ninth Circuit judges asked in Duncan, what is the relevance of the fact (assuming it is a fact) that the average number of bullets a person uses when discharging a gun in self-defense is two or three? Does that mean that an LCM is not commonly used in self-defense and so not presumptively entitled to protection? Or is it enough, as the challengers’ counsel argued, that LCMs are commonly possessed by law-abiding citizens? One further question this raises, as Judge VanDyke stressed, is what the denominator is: what instances do we count when figuring out whether the use is common. He noted that it’s very uncommon to need even a single bullet given that a vanishingly small number of individuals will discharge a gun in self-defense. (Although researchers disagree wildly about the prevalence of defensive gun uses—DGUs—they all agree that whatever the total number of DGUs, far more of them involve brandishing a firearm than shooting one.) The oral arguments did not resolve these difficulties.

In its Eighth Amendment jurisprudence, the Supreme Court has often resorted to counting and commonality to determine whether the Constitution comes into play. There, it has concluded that “[t]o determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” That inquiry involves, among other things, looking at state laws and practices to discern whether a national consensus exists against a certain practice. In other words, do the numbers show that a practice is common or not. And questions about the denominator plague that line of cases just the same as in nascent Second Amendment jurisprudence. Here’s Justice Scalia dissenting in Roper v. Simmons, criticizing the majority’s decision to count states that have abolished the death penalty in its calculation of those that have rejected the death penalty for 16- and 17-year-olds:

None of our cases dealing with an alleged constitutional limitation upon the death penalty has counted, as States supporting a consensus in favor of that limitation, States that have eliminated the death penalty entirely. And with good reason. Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don’t like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing–absolutely nothing–about consensus that offenders under 18 deserve special immunity from such a penalty. . . . The attempt by the Court to turn its remarkable minority consensus into a faux majority by counting Amishmen is an act of nomological desperation.

It may not be nomological desperation, but arguments over the percentage of magazines that are LCMs today, or how widespread the adoption of the multi-shot puckle gun, or how many Winchester repeating rifles were manufactured in the 1860s do seem like an odd kind of nomological obsession for judges and advocates who purport to apply an originalist methodology. Indeed, conservative jurists and advocates often find themselves on opposite sides in the Second and Eighth Amendment contexts. In the former, these actors assert that choices of living Americans determine the scope of constitutional protection. In the latter, they criticize the Supreme Court’s doctrine enshrining an evolving standard that relies on the choices of living Americans. I’ve noted before this embrace of a Second Amendment “evolving-standards-of-utility view”—that whatever happens to be in common use today is protected. As Justice Alito said in a concurrence in Caetano: “the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today” (his emphasis). To me, that standard fits uncomfortably alongside a broader jurisprudential method that privileges the deeds of the dead over those of living. (As Justice Scalia liked to say, the Constitution is not a living document, it’s “dead, dead, dead”). Besides the conceptual difficulties with determining commonality, I think these broader jurisprudential concerns ought at least to provoke a response from the justices who rely on contemporary numerical figures as a guide to constitutional protection in Second Amendment cases, as did Justice Alito in Caetano (“hundreds of thousands” of stun guns owned today) and Justice Thomas in Highland Park (“roughly five million” AR-style rifles owned today).

Another similarity between the two Amendments is that the commonality test in both gets invoked to cut off the avenues of democratic decisionmaking. If a national consensus develops against a practice, the Eighth Amendment forbids it. If a consensus (it’s not yet clear whether local, regional, or national) develops in favor of an “arm,” the Second Amendment protects it. In another sense, though, commonality cuts in opposite directions. Commonality defeats a plaintiff’s Eighth Amendment claim while it vindicates a Second Amendment one. The Eighth Amendment forbids a state from imposing “cruel and unusual” punishment. The Second Amendment (as read by Heller) permits a state to bar “dangerous and unusual” weapons. The similar wording even in these formulations implies the reason for the resilience of the commonality test in both contexts. If unusual means uncommon, then a practice or arm that is widespread cannot by definition be unusual. To the extent that the Supreme Court is prepared to flesh out the common use test in future Second Amendment challenges, I suspect it will have to grapple with many of the same vexing problems with counting that have occurred in its Eighth Amendment jurisprudence.

Further Thoughts on Miller v. Bonta and “Assault Weapons”

Today I’m highlighting further thoughts on Miller v. Bonta, the California federal court decision striking down the state’s assault weapons ban, which I’ve written on several times already last week–here and here. This time, the analysis comes from my Duke Law colleague Charles J. Dunlap Jr., the former deputy judge advocate general of the United States Air Force, a professor of the practice of law at Duke and Executive Director of the Center on Law, Ethics and National Security. (Charlie was also kind enough to cross-post my blog posts on Miller on his Center’s very popular blog, Lawfire.) Given his expertise and background, Charlie’s perspective on this decision is well worth reading. Check it out below!


Missing the target? What you may not know about the complicated issue of gun control

Part II: Breaking the Assault Weapon Opinion Down Further

In yesterday’s post, I unpacked the court’s decision in Miller v. Bonta, striking down California’s assault weapons ban. In today’s post, I look at the case with a more critical eye. I first focus on matters of doctrine and then turn to style.

As a doctrinal matter, I see three important aspects to the case:

  1. A new quintessential self-defense weapon?

Heller famously called the handgun “the quintessential self-defense weapon” (QSDW). It gave a litany of reasons for why that might the case: “It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.” Ultimately, however, “[w]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home.”

Miller speaks in similar terms about the AR-15. Indeed, it might be the new paradigm for self-defense weaponry. “The AR-15 rifle is light in weight, and has good ergonomics, and is suitable for people of all statures and varying levels of strength.” It comes standard with a 30-round magazine to confront burglars and its common features are adapted to defensive use. “The gas piston design,” for example, “reduces the recoil so that the young or old or not-particularly-strong have better control.” One can hear echoes of Heller in nearly all of Miller’s description of the AR-15. It’s not yet clear whether there are doctrinal implications from the classifying a weapon as the QSDW, but as the next section suggests, I think there likely ought to be.

  1. “The Heller test”

Judge Benitez invoked “the Heller test” to judge constitutionality. This “test,” to my mind, badly misreads Heller and lacks any normative grounding. Heller made a descriptive statement about handguns—as commonly used by law-abiding citizens for lawful purposes—but did not lay down any sort of “test” like this opinion derives from it. Criticisms of Heller’s “common use” test abound (including by me), but even taking it on its own, the best reading of Heller is that common use is a question about coverage, not protection. It answers the question of whether a weapon falls within the scope of the Second Amendment, not the question about whether and how the government can regulate that weapon. (So it helps answer questions about whether regulations on stun guns, knives, nunchaku, etc. get Second Amendment scrutiny at all). I confess that that might be different for the QSDW, as I’ve puzzled through. And Joseph has also discussed the possibility of three levels of weapons review. But I can’t see Heller to create a test that entails absolute protection for any weapon in common use.

As a normative matter, why would the government’s regulatory authority be contingent on weapon popularity? The government can ban anything it wants as long as it does so before the weapon becomes commonly owned or used? And then so long as it continues the ban, it’s home free? Judge Easterbrook didn’t think much of this argument: “it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.” If the 1994 Assault Weapons ban were still in effect, there would be a heck of a lot fewer AR-15s. Why that law’s expiration should settle the constitutionality of California’s ban is not clear.

  1. The militia right again?

Heller interred the theory of the Second Amendment that made the right to keep and bear arms contingent on some connection with the militia. Judge Benitez seems to have resurrected one version of it. On his telling, a person has an individual constitutional right to keep and bear those weapons that would be useful in a modern militia, notwithstanding Heller’s admonition that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.” It’s not clear what separates an AR-15, that Judge Benitez finds useful for militia service, from an M-16. (Besides the obvious difference he stresses—one is a semi-automatic and the other is capable of automatic fire.) If an AR-15 cannot be banned for the independent reason that it’s useful in a militia, how is the machinegun ban in federal law constitutional? How are prohibitions on grenades and other explosives? Sure, they may have to meet some nebulous common-use test, but as of 2017, there were 630,019 machineguns lawfully registered nationwide. That sure seems like a lot. Maybe Judge Benitez would be fine discarding Heller’s dicta on the M-16 and allowing the proliferation of privately owned machineguns, but the militia route seems a strange path to get there.


The doctrinal impact of the opinion, however, will likely not be long-lasting. The Ninth Circuit will hear the case on appeal and will, like it did in the case affirming Judge Benitez’s ruling on large-capacity magazines, tighten up some of the theoretical and doctrinal arguments, even if it upholds the outcome. I doubt the Ninth Circuit will discard its two-part framework and adopt “the Heller test” or that it will vindicate an individual right to weapons useful in militia service. But only time will tell.

I’d be remiss in discussing the opinion if I did not also highlight the less substantive aspects. Whatever one thinks of assault weapons laws as a matter of policy or constitutional law—and there are interesting and important questions on both sides (Greg Wallace, for example, has written several in-depth law review articles criticizing bans on assault weapons, one of which I’ve interviewed him about)—the Miller decision is a disappointing opinion, full of overstatements, misplaced rhetoric, and doctrinal miscues. (Apparently concerns about his judicial temperament were voiced when Judge Benitez was first nominated for the bench.) As I said yesterday, my assessment of this style is not based on my underlying views of the merits of the ruling. I noted last round, for example, the contrast between Judge Lee’s measured opinion for the Ninth Circuit upholding Judge Benitez’s similarly strange opinion declaring California’s large-capacity magazine ban unconstitutional. The wide stylistic and tonal difference between those two opinions—which reach the same substantive outcome—shows the substance can be treated with greater care. The same goes for other opinions striking down laws on Second Amendment grounds, like (to add examples to the two I mentioned yesterday) Judge Griffith’s opinion for the D.C. Circuit in Wrenn or Judge Sykes’s several opinions for the Seventh Circuit in Ezell. It’s unfortunate that the Miller opinion reads more like a culture-war diatribe than a fair adjudication of an important legal and policy issue.

In fact, the opinion reads to me more like an overly enthusiastic advocate’s brief than a serious judicial opinion. All of the evidence, in the court’s telling, is on the side of the challengers. All of the plaintiffs’ experts are distinguished with impressive resumes, in the court’s telling, while the state’s experts credentials are unmentioned (at best) or slighted. The plaintiffs’ experts opinions are always credited; the state’s dismissed where they don’t support the through-line of the opinion. The case is “simple” (p.17) and “obvious” (p.17) with “an easy question and answer” (p.92). There are no complexities or difficult factual or legal questions. There is almost zero recognition of the harms these guns can cause (and an explicit downplaying of those harms, as in the egregious phrase “[e]ven if a mass shooting by assault rifle is a real harm . . .” (p.17)). The opinion is casually dismissal of countervailing views and jettisons a series of beliefs as “commonly espoused myths” (p.43) and as a “bromide” (p. 43) and “trope” (p.46) and “old saw” (p.47). There are several “aside[s]” where the court just seems to want to take a jab at the other side or other judges. (One such aside inaccurately disputes the origin of the phrase assault weapon; another suggests that the use of means-end scrutiny is problematic because it cannot be found in the Constitution.) And strange characters show up in the opinion that seem designed less to illuminate than to score political points or needle opponents: Korematsu, Fidel Castro, Ho Chi Minh, and the Taliban and Iraqi insurgents. The style is off-putting for anyone not already enthusiastic about gun rights and does not seem designed to explain or persuade.[1]

Second Amendment doctrine is still in its infancy. There are only 13 years of federal court engagement with questions about the state’s authority over private firearm possession and use. Whether the state can ban assault weapons is an important and serious issue. I’m looking forward to the appellate decision seriously discussing California’s ban, regardless of how it comes out. (Miller may not even be the vehicle the Ninth Circuit uses, as an appeal from the district court decision upholding the ban is already briefed.)


[1] In addition to the stylistic choices, the opinion’s organization is unclear, not intuitive, and does not follow the typical format for a judicial opinion. Subject headings range from descriptive (e.g. “Criminal Penalties”) to seeming non-sequiturs (e.g., “You don’t need more than 2.2 shots and you don’t need seat belts or smoke detectors”) and they do not clearly follow or relate to the other subject headings. For example, the Introduction heading is followed by 7 subheadings whose relation to one another and introductory nature is unclear. Discussion about the evidence of the law’s burden is couched in nesting subsections assessing the reasonableness of the law’s fit, not in the part of the opinion discussing the burden. Some of the analogies are poor or forced: “Like Victor Hugo’s Inspector Javert relentlessly searching for Jean Valjean, California continues to amend its statutes to prohibit more and more firearms” (p.17); banning weapons useful for the militia “may not be a severe burden today when the need for the militia is improbable. One could say the same thing about the improbable need for insurance policies.” (p. 81). There are grammatical errors aplenty, and the opinion was uploaded with redlining intact.

Miller v. Bonta and California’s Assault Weapons Ban

Last week, in Miller v. Bonta, Judge Roger T. Benitez of the United States District Court for the Southern District of California, struck down California’s assault weapons ban as unconstitutional under the Second Amendment. In today’s post, I’ll describe the doctrinal and theoretical moves the opinion makes, and tomorrow’s post will provide further analysis and critical engagement.

The opinion is fairly strange. One oddity is that Judge Benitez has also authored similar decisions striking down other California regulations under the Second Amendment. (Here’s my twopart summary of the Ninth Circuit’s opinion upholding his ruling on California’s large-capacity magazine ban.) The reason Judge Benitez has had so many of these challenges before him is important and does not get enough attention. It is due to a peculiar “related cases” rule in the Southern District of California. The rule is supposed to allow disposition of similar issues arising between parties to be adjudicated efficiently by a single judge, not to allow a plaintiff to funnel all of its constitutional challenges to the same judge. As the San Diego Union-Tribune reports, the district’s rule (unlike those in other federal districts, such as the one covering Los Angeles) does not even allow an opposing party to object that the cases don’t satisfy the rule. And, on the merits, it does not seem that anything ties the series of cases before Judge Benitez together other than the fact that they raise Second Amendment challenges to state laws. As applied in that broad way, the rule is a strong incentive for plaintiffs to shop for a favorable judge and have all their cases heard before her.

But the opinion itself is even more bizzare than the rule that landed the case in this courtroom. Some legal scholars have called the ruling “nutty,” others have described it as lacking nuance and “not very judicial,” and others still—including one commentator who has praised Heller as generally a “methodologically rigorous originalist opinion”—have argued that it is “a bad opinion that gives every impression of being driven by substantive policy rather than law.” I have some of my own thoughts on the opinion’s style, tone, rhetoric, and substance, but first let me lay out the case it makes.

It leads off with an introduction that invokes the utility of the Swiss Army Knife as an analogy for the adaptability and utility of the AR-15, the firearm that serves as the exemplar for the opinion’s discussion of the prototypical type of weapon prohibited under California law. Though it spans 94 pages, the core of the court’s rationale is contained in one paragraph from the introduction:

This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned “assault weapons” are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed “assault weapons” are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes. (p.2)

That, ultimately, is the legal conclusion the court reaches: the Second Amendment precludes a prohibition on a weapon commonly possessed by law-abiding citizens for lawful uses (more on this specific rationale later).

Facts and Legal Framework

The opinion recounts the origin of the law in 1989 (as a response to a school shooting that killed five students and left nearly 30 others wounded) and its revision in 2000. At the time, the court says, the law “was a policy choice unencumbered by constitutional considerations” because courts in that pre-Heller context had construed the Second Amendment as inapplicable to private firearm possession for private purposes. The plaintiffs challenged the current version of the law barring rifles meeting one of three conditions: (1) a semiautomatic centerfire rifle with detachable magazine and one additional feature: a pistol grip that protrudes conspicuously beneath the action of the rifle, a thumbhole stock, a folding or telescoping stock, a grenade or flare launcher, a flash suppressor, or a forward pistol grip; (2) a semiautomatic centerfire rifle that has a fixed magazine able to hold more than 10 rounds; or (3) a semiautomatic centerfire rifle that has an overall length of less than 30 inches.[1]

The court describes two tests it will use to judge the law: (1) “the Heller test,” and (2) the Ninth Circuit’s two-part framework. (The Ninth Circuit, in an opinion by Judge Lee upholding Judge Benitez’s prior ruling on large-capacity magazines, already rejected Judge Benitez’s use of the “the Heller test”).

The Heller Test

For “the Heller test,” the opinion reads Heller to require only an inquiry into the commonality and lawful use of a piece of hardware.

As applied to [the assault weapon ban], the Heller test asks: is a modern rifle commonly owned by law-abiding citizens for a lawful purpose? For the AR-15 type rifle the answer is “yes.” The overwhelming majority of citizens who own and keep the popular AR-15 rifle and its many variants do so for lawful purposes, including self-defense at home. Under Heller, that is all that is needed. Using the easy to understand Heller test, it is obvious that the California assault weapon ban is unconstitutional. Under the Heller test, judicial review can end right here. (p.13).

The opinion recites statistics about the (undeniable) popularity of the AR-15 and similar rifles, even remarking that “[t]here are probably more modern rifles in circulation than there are Ford F-150 pickup trucks.” (p.15). The case is “simple” because California bars a common lawfully used weapon. That’s fatal under “the Heller test.”

The Two-Part Framework

Despite his disagreement with the Ninth Circuit’s framework (the court of appeals “has yet to adopt the easy to grasp Heller test,” he notes), the judge applies it next. That framework has two steps: step one looks to whether the law burdens protected conduct and step two tests the law against an appropriate form of means-end scrutiny. At step one, the court finds the regulation to burden protected conduct and that there is no historical analogue to this law that would indicate it regulated conduct not understood to be within the scope of the Second Amendment. “Prior to the 1990’s, there was no national history of banning weapons because they were equipped with furniture like pistol grips, collapsible stocks, flash hiders, flare launchers, or barrel shrouds.” (p.19).

At step two, the court helpfully describes Ninth Circuit precedent as using “a sort-of bull’s eye test” (p.20) to determine the level of scrutiny a law gets. (I’ve used a similar analogy in teaching this framework.) If the law severely burdens conduct lying close to the core of the Second Amendment, then strict scrutiny applies. If the burden is slight or the conduct is peripheral and not core, intermediate scrutiny applies.[2] But if the burden turns into a “destruction” of the right, the law is categorically unconstitutional.[3] The court says the case could be decided right there. But it proceeds to assume that some lower level of scrutiny applies because, it concludes, the law fails even under intermediate scrutiny.

In assessing intermediate scrutiny, the court first notes that the state’s interests is very important, but limits that interest to “reducing gun crime.” (p.23). As Joseph and Reva Siegel have explained, the state’s interest in gun regulation extends far beyond just reducing death and injury from guns. The court then moves on to assessing whether the law is a “reasonable fit” with that gun-crime suppression goal, either in general or as applied to mass shootings. (The court doesn’t miss an opportunity to criticize Ninth Circuit precedent on what’s required for a reasonable fit and bizarrely and incomprehensibly—to me, at least—says that “[u]nder this relaxed test a state could enter a person’s home without a warrant and seize him or his guns in violation of the Fourth Amendment prohibition on searches and seizures without a warrant or the Due Process Clause of the Fourteenth Amendment.” (p.23).

To judge reasonable fit, the court then marches through a long review of the evidence. First, it describes the AR-15’s utility for home defense. It mentions several examples of individuals using such a firearm to fend off home invaders. The first and primary example is the use by “a pregnant wife and mother to defend her family from two armed, hooded, and masked home intruders” (p.33). (Stranger rape is a constant backdrop throughout the opinion’s discussion of the need for an AR-15 to protect oneself in the home, including in the discussion of this example—“[i]t does not require much imagination to guess what would have happened next if the wife and mother did not have the firearm” (p.34).) And it describes the prohibited features as what make the gun particularly useful for self-defense, in no small part because they make the weapon more accurate. Here, the court highlights what it appropriately calls “[t]he accuracy conundrum.” (p.40). What makes a gun accurate for criminals also makes it accurate for self-defenders. The accuracy that makes an attack more lethal in a mass shooting incident also makes a home defender more accurate in shooting an intruder.

The court dismisses the notion that a weapon’s disproportionate use in crime is relevant to the analysis. After all, it says, handguns were prime crime guns at the time Heller was decided and the Court did not take that into account. “If use by criminals could justify a weapon’s ban, it would amount to something like a disfavored ‘heckler’s veto.’ We might call it the ‘criminal’s veto.’” (p.44). And anyway, says the court, the evidence does not show that assault weapons are used disproportionately in mass shootings (p.47), or even that mass shootings are much of a problem. “Recall,” the court says, that intermediate scrutiny requires the state to try to solve a real problem in a real way. But the “harm” (it’s in quotation marks in the opinion) of an assault weapon in a mass shooting is an “infinitesimally rare event.” (p.47). “More people have died from the Covid-19 vaccine than mass shootings in California. Even if a mass shooting by assault rifle is a real harm, the evidence also shows that AWCA’s prohibited features ban has not alleviated the harm in any material way.” (p.47) (emphases added). Despite this sentence coming in the Evidence section of the opinion, there’s no citation to the suggestion that more people have died from Covid shots than mass shootings in California; perhaps it was an inadvertent mistake meant to simply say more people died from Covid. If so, it’s one of the many signs of sloppiness in the opinion (along with the fact that the opinion retained redlined track-changes), not to mention the revolting suggestion that mass shooting deaths with an assault rifle might not be a “real harm.”

The court also discounts the notion that a person need not use an assault weapon because a home defender only uses an average of 2.2. shots in self-defense. The court spends a lot of time taking apart the genesis of this claim and rejecting the analysis by Lisa Allen, the state’s expert. He calls Allen’s analysis “incomprehensible” (p.50) and suggests it’s the result of “statistical manipulation” (p.51), and that she simply produces whatever results the state wants “on cue” (p.55). Even assuming that 2.2 shots is the average, the court says, sometimes people need more than average. Thus, while the burden may be minimal much of the time, “[a] law that bans seat belts or smoke detectors would impose a minimal burden much of the time” (p. 54). For good measure, the court again recites statistics about the number of victims of violent crime in the country. (Rape is invoked once more here to remind readers of the danger of forgoing home defense with an AR-15.) “It begs the question, are the lives of home invasion victims worth less than the lives of mass shooting victims?” (p.55).

Next, the court goes through the evidence of assault weapon use in mass shootings, finding the state’s experts unpersuasive. One problem, the judge notes, is the fact that there’s no commonly agreed definition of a mass shooting and no uniform government database tracking them. Yet the court tries to make sense of the competing pictures and then draws this strange causal inference:

How well has the California ban on assault weapons worked? Before AWCA, twice in a decade, an assault weapon was used in a mass shooting. On average, since AWCA, twice a decade, an assault weapon was used in a mass shooting. The assault weapon ban has had no effect. California’s experiment is a failure. (p.60).

Rape makes another appearance when discussing national statistics on assault weapons bans based on information from the experts’ data:

Had laws been in place that prevented acquisition of assault weapons during the years 2003 to 2007, 38 people may have been spared being shot with an assault weapon (although they may or may not have been shot with a non-assault weapon). In contrast, during the same five years, 7,700 women may not have been raped and 266,560 homeowners may not have suffered a violent victimization during the burglary of their homes had they been armed with an assault weapon. (p.61).

“Put simply,” the court says in summarizing the case, “the evidence indicates gun bans are ineffective at reducing gun crimes. Plaintiffs’ expert, economist John R. Lott, Jr., opines that ‘all credible evidence shows that assault weapon bans have little to no effect in reducing mass shootings, homicides, or violent crime in general.’” (p.69). (John Lott, it should be emphasized, is a very controversial gun-rights economist whose conclusions and methodology other scholars have often criticized.)

Every federal court of appeals to consider the question before Miller has upheld similar laws as constitutional, including the First, Second, Fourth, Seventh and D.C. Circuits (as well as a sister California district court addressing the same law). But the court dismisses their relevance for various reasons, some based on the differences in procedural posture or nature of the law at issue, others because of substantive disagreement with their arguments. One big difference is what the court calls “the jurisprudence of firearms alternatives” (p.74) that looks, in part, at whether the law leaves open sufficient alternative means of self-defense. Judge Benitez finds such an analysis inconsistent with Heller, which is not an outlandish reading of the opinion.

Finally, after detailing its effect on self-defense, the court advances a novel argument. I have not seen this in any court before. It holds—independent of that conclusion—that the law also fails intermediate scrutiny because it “imposes a burden on the Second Amendment right to own a firearm that is the ideal weapon for use in the militia.” (p.81). As a matter of first impression, it says that under intermediate scrutiny, “the ‘fit’ of a total ban is judged on its application to all aspects of exercising the Second Amendment right: home defense, militia use, sporting competitions, hunting, target practice, and other lawful uses.” (p.81). Because the AR-15 is good for militia use, the state can’t ban it. “Because it is a weapon of light warfare that is commonly owned, commonly trained, with common characteristics, and common interchangeable parts, it is protected for militia use by the Second Amendment.” (p.85). Citizen militias, the opinion asserts, “are not irrelevant.” (p.88).

It concludes: “The Second Amendment is about America’s freedom: the freedom to protect oneself, family, home, and homeland.” (p.92).

In tomorrow’s post, I offer some thoughts on several interesting doctrinal takeaways from the case and criticize some aspects of the opinion, including its tone and rhetoric. None of that stylistic criticism rests on my underlying views of the court’s conclusion. I have no similar qualms about the style or tone of Judge Manion’s dissent in the Seventh Circuit or then-Judge Kavanuagh’s dissent in the D.C. Circuit, to name just two examples of other opinions that consider assault weapons ban unconstitutional. But, in my view, this is an important question of law, and it deserves more serious consideration than this opinion.


[1] At this point, the opinion invokes an inaccurate gun-rights talking point: “As an aside,” it says, the “epithet” assault weapon is a misnomer, citing a dissent by Justice Thomas for the notion that the term was made up in 1989 “by anti-gun publicists to expand the category of ‘assault rifles’ so as to allow an attack on as many additional firearms as possible on the basis of undefined ‘evil’ appearance.” (p.8 n.17). But that’s just not true. The phrase was around before 1989, and in the materials for gun-buyers, not gun-banners, as this 1986 edition of Jack Lewis’s “The Gun Digest Book of Assault Weapons” shows quite clearly. The judge says the banned weapons could be more accurately called “home defense rifles” or “anti-crime guns” (p.8), but settles for the rest of the opinion on “modern rifles” (even dismissing the industry’s and advocates’ preferred term “modern sporting rifle” as too narrow because such weapons, the judge insists, are useful for more than sporting). He recognizes these modern rifles look different from the typical long guns envisioned in television and movies. “Parts once made of solid wood on guns of the past are gone.” (p.11).

[2] Curiously, and another point I’ll return to, the court notes that “court[s] have yet to address the subject of arms for militia use. Is the right to keep an assault rifle reasonably-related to militia use also a core right at the center of the bull’s eye or does it fall on the periphery of Second Amendment concerns? In view of the importance of keeping militia arms at the founding of the nation, and its continuing importance as a means of national self-preservation, this Court deems it to be a core right.” (pp.20-21 n.36) (emphasis added).

[3] The court says that, other than Heller and McDonald, “no federal court has applied this top tier of scrutiny.” (p.22). That’s not accurate. The D.C. Circuit in Wrenn struck down D.C.’s may-issue permit regime as categorically unconstitutional for just this reason. So did the two since-vacated Ninth Circuit panel opinions in Peruta and Young.

Scholarship Highlight: New Student Notes on Guns

A few new student notes about firearms law have been published recently or will be soon. Once again, it’s great to see the field growing!

Danny Li, The First Amendment Weaponized: When Guns Become Public Discourse, William & Mary Bill of Rights. J. (forthcoming)

Here’s the Abstract:

This Article discusses First Amendment challenges asserted against laws regulating the open carry of firearms—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms—using armed protests as a test case. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and social norms. This Article speaks to judicial and non-judicial interlocutors, mapping a doctrinal path that judges should take to reject these challenges while providing a conceptual language for bystanders to reassert and reclaim their rights to public safety and participation from open carriers trying to weaponize the First Amendment.

To judicial interlocutors, the Article argues that the practice of open carry is too divorced from the value of democratic self-governance to constitute public discourse deserving of First Amendment coverage. It also suggests that, to overcome radically divergent social interpretations of arms bearing, courts should engage in normative analysis that takes account of the constitutional values at stake in extending First Amendment coverage to public carry. Courts should deny First Amendment coverage to gun carry both because bearing arms in public does not facilitate the formation of public opinion and because doing so preserves the social and legal norms that exclude guns from the public sphere. These norms—encoded in commonplace gun control laws—serve important constitutional values and interests central to the First Amendment.

The Article suggests that these First Amendment challenges illustrate the extent to which pro-gun rights movements transcend the jurisprudential boundaries of the Second Amendment. Evolving popular beliefs about the right to bear arms trickle down into popular beliefs about other, adjacent constitutional rights like the First Amendment right to freedom of speech. Once we consider these First Amendment challenges to gun control measures and look beyond their lack of judicial success, we can begin to see how popular beliefs about the right to bear arms are gradually evolving to incorporate First Amendment values. Guns are transformed into public discourse—symbols and forms of political speech.

To non-judicial interlocutors, the Article concludes with a call for advocates of gun control to flip the script on these First Amendment claims and forcefully articulate the ways that guns in public spaces threaten the free and equal exercise of constitutional rights to free speech, assembly, and political participation more broadly.

Esther Ness, Moving Beyond Thoughts and Prayers: A New and Improved Federal Assault Weapons Ban, 44 Fordham Int’l L.J. 1087, 1087–88 (2021)

Here’s the Abstract:

The United States is infamous for its high levels of gun violence and a significant number of mass shootings. Each time the United States experiences a new mass shooting, public debates arise on changing US gun laws. Australia’s strict gun laws that were enacted in response to a 1996 mass shooting are often used as an example of what the United States could do. Recently, New Zealand has been added to the discussion because it implemented strict gun laws within a week of mass shootings at two mosques in 2019. Critics opposing similar large-scale changes to gun laws in the United States argue that the United States is too different from these other countries to create successful reforms because of the Second Amendment and a strong gun culture. Yet, the federal government was not always reluctant to reform gun laws in response to mass shootings. The United States tried implementing large-scale change when it passed the Federal Assault Weapons Ban in 1994, but since its expiration in 2004, attempts to enact similar measures have failed. This Note proposes a new federal assault weapons ban that incorporates lessons from Australia, New Zealand, and past attempts for reform in the United States. This Note analyzes how the different approaches to gun control in Australia and New Zealand will likely fare in the United States by discussing each country’s gun culture and history with guns, how these factors shape the various legal challenges to gun control in the United States, and considerations that must be accounted for when constructing a new ban. A new law formulated with these challenges in mind can achieve long-lasting success and make the United States safer.

Litigation Highlight: Vermont Supreme Court Upholds Magazine Limit

Earlier this week, in Vermont v. Misch, the Vermont Supreme Court rejected a state constitutional law challenge to the statutory prohibition on magazines that hold more than 10 rounds of ammunition for long guns and 15 rounds for handguns. Yesterday, the Ninth Circuit voted to grant rehearing en banc in a Second Amendment challenge to California’s very similar law, which a three-judge panel had earlier struck down. The issue is not likely going away anytime soon.

The Vermont challenge arose from a criminal prosecution brought against a man who hopped over the border into New Hampshire to buy 30-round magazines and bring them back into Vermont. As most relevant here, he argued that the law violates his state constitutional right to keep and bear arms; he did not raise a federal Second Amendment challenge.

Vermont’s state constitutional analogue to the Second Amendment—Article 16—provides that “the people have a right to bear arms for the defence of themselves and the State.” Surprisingly (to me, at least), the Vermont Supreme Court had never before defined the scope of the Article 16 right, nor established a standard to assess challenges under it. In considering the scope of the right, the Court first noted the ambiguity in the text and history about whether Article 16 was meant to protect arms possession for self-defense apart from service in a militia. With respect to the phrase “bear arms,” the Court relied on the recent corpus linguistics data that was unavailable at the time of Heller and which Darrell has written about here—the Court even cited Darrell’s work. It concluded that “[w]hile there was some contemporary use of the term ‘bear arms’ in a literal or individualistic sense, corpus data has revealed that ‘bear arms’ most often meant to serve in a military capacity.” The right to bear arms for defense of the State was therefore a right to bear arms for militia service. Article 16 also protects the people’s right to bear arms “for the defence of themselves,” but the Court concluded that text and history were unclear about whether that right protected individual private purposes such as self-defense or not. Instead, it suggested that its prior Article 16 cases, and precedent from sister states construing similar language, had assumed or found such an individual right.

The Court also held, however, that the Article 16 right is “subject to limitations and regulation.” In fleshing out a standard to govern challenges to the right, the Court looked at both the dominant test among the states—the reasonable regulation test—and the dominant test among federal courts of appeals—the two-part framework. Ultimately, the Court concluded that the reasonable regulation test “is most consistent with our case law, our interpretation of Article 16, the nature of the right to bear arms, and our constitutional doctrine as a whole.” In adopting the test, the Court recognized that “the right to bear arms is distinct from other individual rights in the degree to which its exercise is associated with serious risks of harm to self and others.” It thus described the reasonable regulation test as affording the legislature broad deference to exercise its police powers to protect public peace and safety. Drawing on how other courts articulated the test, the Court said:

In applying this test to restrictions on specific firearms, ammunition, or accessories, courts may consider, among other factors, characteristics of the particular weapon restricted, the typical use of the proscribed weapon, and the number and nature of the weapons subjected to the ban compared with the number and nature of the weapons that remain available for the vindication of the right. (citations, quotations marks, and alternations omitted)

The Court clearly distinguished the reasonable regulation test from ordinary rational basis review. The former looks to how the law serves the state’s actual purposes for the law. The latter allows hypothetical government interests to vindicate almost any law. Applying that test to the magazine limit, the Court concluded that the law serves the state’s interest in reducing harm from mass shootings and poses only a minimal burden on the right. In rejecting the reasoning of the (now vacated) Ninth Circuit panel decision in Duncan v. Becerra, the Court clarified that its test does not turn on the popularity of a weapon or magazine (such as whether or not it is in “common use”). “As long as the statute leaves available to Vermonters reasonable means to exercise the right to bear arms in self-defense, we will not question the Legislature’s reasonable policy judgments based on the prevalence of a weapon alone.”

The Biden Administration Gun Plan

On his campaign website, President-Elect Joe Biden lists several of his administration’s priorities for firearm regulation. Since the actual policy proposals are not spelled out in depth, it is hard to evaluate the precise details of his plan. And, of course, the ones that require congressional action are much less likely to pass if the Senate remains in Republican hands. As proposals get introduced and debated after the inauguration, we will be blogging about their legal merits. For now, we’re highlighting those of his proposals that touch on areas we’ve covered on the blog and collecting the posts discussing those topics.

Repeal the Protection of Lawful Commerce in Arms Act (PLCAA)

Ban Assault Weapons (AWs) and Large-Capacity Magazines (LCMs)

Regulate Existing AWs under the National Firearms Act (NFA)

Require Universal Background Checks / Close Other “Loopholes”

Create Firearm Relinquishment Program for Prohibited Possessors

Incentivize State Extreme Risk Laws

Incentivize Smart Guns

Reflections on the Ninth Circuit’s LCM Decision

Yesterday, I wrote about the Ninth’s Circuit’s decision in Duncan v. Becerra, striking down CA’s ban on large-capacity magazines (LCMs). Today I offer a few observations from my reading of the case.

First, I think the bulk of the majority’s analysis at step one of the two-part step is helpful and mostly accurate. It’s useful to have a court lay out all the analysis in step one, which helps to show the two-part framework is really that—a framework—and not a wooden or formal “test.” Many courts of appeals “assume without deciding” that certain conduct is covered at step one because they ultimately declare the law constitutional under step two. But because the panel here struck down the law, it had to do the analysis at step one. That, in turn, provides useful guidance for policymakers, advocates, scholars, and future courts.

Turning to the specifics of the step-one analysis, I think the court was correct that the “common use” test is not a standalone test for constitutionality, but simply one part of the step-one inquiry into whether an arm is “dangerous and unusual.” In other words, the common-use test is a coverage test, not (like the district court had it) a protection one. It tells you what falls within the scope of the Second Amendment, but does not end the inquiry into constitutionality. But I think the panel is not altogether convincing in its repeated invocation of the number of LCMs in existence as proof of this commonality point. After all, just because an accessory comes “standard” with a product doesn’t mean much about whether that accessory would be chosen by consumers if asked or whether that accessory was important or meaningful in their selection of the product. Besides, there’s something a little awkward about having constitutional coverage standards set by commercial manufacturing interests. There’s nothing stopping manufacturers from including 30-round magazines as standard; why the constitutional bar should vary with that decision is not entirely clear to me.

Second, I was much less persuaded by the panel’s discussion of step two. In my view, much of the panel’s language was far too broad. It cannot be the case—or at least it doesn’t seem to be in the rest of the country or the rest of the Ninth Circuit’s doctrine—that a law “adversely affecting” the right to home gun ownership strikes at the core of the Second Amendment. Even if the panel’s statement only applies to cases in which the weapon itself is regulated, as opposed to laws like the DV misdemeanor prohibitor that clearly “adversely affects” possession in the home (by prohibiting it), this doesn’t seem right. The panel doesn’t discuss or distinguish other instances that clearly do affect such rights, like the federal law prohibiting home possession of firearms with obliterated/altered serial numbers. The Third Circuit upheld that law ten years ago in United States v. Marzzarrella after applying intermediate scrutiny and in terms that make it seem like such a law doesn’t strike at the core self-defense purpose. In my view, not every regulation on an “arm” in the home strikes at the core.

Relatedly, I found the court’s discussion of substantial burden entirely unconvincing. It declined to assess how the ban impacted the right to armed self-defense. In my view, there’s just no way to talk about whether something is a substantial burden on the exercise of the right without talking about how it actually affects the right. That is not a “policy” argument, as the panel says, at least no more than any of constitutional law is (shout-out to Eric Segall). Inquiries into the degree of a burden happen everywhere. As Alan Brownstein put it in his comprehensive article cataloguing how constitutional rights are infringed:

Even a cursory survey of Supreme Court case law examining such diverse areas as the right to marry, the right of political association, property rights, the free exercise of religion, freedom from the establishment of religion, and procedural due process demonstrates that the Court has frequently employed a basic undue burden analysis to evaluate laws alleged to abridge a wide range of constitutionally protected interests.

The panel thinks these questions are off limits, but to me they are the heart of the inquiry. What the substantial-burden assessment really entails is an analysis of the extent to which the right is limited, restriction, or burdened. One can’t answer that at the level of conceptual analysis.

For example, suppose that a gun manufacturer runs a promotion in which it throws in a free 100-round magazine as a special incentive for consumers to purchase weapons during a particular sales period. Then assume that during that period millions of guns are sold and so millions of 100-round magazines become lawfully possessed (let’s assume the manufacturer only ships to the many states with no magazine restrictions). We might then conclude that under step one, those magazines fall within the Second Amendment’s scope because they are, by virtue of the promotional giveaway, commonly possessed by law-abiding citizens. After all, Justice Alito in his Caetano concurrence said that the “hundreds of thousands” of stun guns sold to private citizens meant those were common enough under this test. But suppose it turns out that no one uses a 100-round magazine for self-defense purposes–indeed, some gun-rights advocates note that certain types of 100-round magazines are “unpopular because of [their] weight, expense, and propensity to jam.” If that’s all true, then a ban on such a magazine would not be a substantial burden on the self-defense-infused Second Amendment right, no matter how commonly such magazines were possessed by law-abiding citizens. To me, the panel opinion’s discussion of substantial burden doesn’t deal with the real questions about what it means to actually restrict or infringe a right.

The Ninth Circuit Strikes Down California’s Ban on Large-Capacity Magazines

Last year a federal district court in California became the first federal court to conclude that a ban on magazines holding more than 10 rounds violates the Second Amendment. A few weeks ago, in Duncan v. Becerra, a panel of the Ninth Circuit became the first federal appellate court to do so. Before this decision, the six circuits that had addressed the question—the First, Second, Third, Fourth, Seventh, and D.C. Circuits—all upheld such bans. (Most recently, Colorado’s Supreme Court upheld a magazine ban against a state constitutional challenge in July.) This post lays out the important parts of the court’s decision. In one tomorrow, I offer some observations and thoughts on the court’s analysis.

The California legislature originally passed its ban on large-capacity magazines (“LCMs”) in July 1999, three months after the Columbine shootings. That first law banned only the manufacture, importation, and sale of LCMs, but the state slowly increased restrictions in later years. At issue in Duncan was a statute that, as a result of a 2016 amendment to the law, prohibited nearly all possession of LCMs in California and did not grandfather in LCMs lawfully owned prior to the ban.

The panel’s opinion striking down this law was not unanimous. Judge Kenneth Lee wrote the opinion for the majority, and he was joined by Judge Consuelo Callahan. Judge Barbara Lynn, Chief Judge for the Northern District of Texas, and sitting by designation, dissented.

Judge Lee’s opinion for the panel is notable for many reasons, but one of the more striking to me is the difference in style and tone from the district court’s order. Judge Lee’s opinion distilled three independent holdings from the district court’s opinion relevant to the appeal: (1) the LCM ban failed Heller’s “simple test” that (according to the district court) immunizes “common-use” weapons from prohibition, (2) the LCM ban fails strict scrutiny, and (3) even if intermediate scrutiny were the proper standard, the law would still fail.

The panel agreed with the district court on points (2) and (3), but dismissed the first ground. “We note that the district court’s ‘simple Heller test’ conflicts with our court’s two-step inquiry framework for the Second Amendment” (p15). (Judge Lee did nonetheless cite a dissent from Justice Thomas critiquing the two-step framework.)

Judge Lee first helpfully described the contours of the Ninth Circuit’s two-step framework. It requires the court to first determine whether the Second Amendment applies, and then, if so, determine the appropriate level of scrutiny. At the first step, Judge Lee identified four questions:  (1) is the product in question an “arm,” (2) is that arm “both dangerous and unusual,” (3) is the regulation “longstanding and thus presumptively lawful,” and (4) is there “any persuasive historical evidence in the record showing that the regulation affects rights that fall outside the scope of the Second Amendment” (pp18-19). If the answer to question one is “no,” the government wins; if the answer to questions two, three, or four are “yes,” the government wins. Any other answer moves to step two. At step two, the court asks two more questions to decide the proper level of scrutiny to apply: (1) does the regulation come close “to the core right of law-abiding citizens to defend hearth and home” (p19), and (2) does the law impose a substantial burden on that right. The answer to both questions must be “yes” before a court applies strict scrutiny. A “no” to either results in intermediate scrutiny.

Applying Step One

In applying step one of this analysis, the panel addressed each of the four questions.

  1. Arms? The panel concluded that magazines are “arms” because without them many weapons would be useless.
  2. Dangerous and Unusual? According to the panel, LCMs are common and typical, not dangerous and unusual. The panel relied fairly heavily on a concurrence by Justice Alito in Caetano (an opinion joined only by Justice Thomas) to flesh out this standard. Commonality is the key to whether arms are dangerous and unusual, and that “is determined largely by statistics” (p21). The panel then noted the prevalence of LCMs. Something like “half of all magazines in the United States hold more than ten rounds” (p22). They are legal in all states but a handful. And they come standard with many handguns. Although it concluded those facts were sufficient to answer the question, the panel also discussed at length the evolution of firearm technology to conclude that guns that could fire more than ten shots without reloading were known to the Founders—though this historical overview reached far past the founding. It included, for example, discussion of things like the Puckle Gun, pepperbox pistol, and development of the AR-15 after WWII. (My entirely speculative guess is that a clerk wrote a bench memo on the history of repeating firearms that was thought too good to leave out.) In short, the panel concluded, “[a]rms are not unusual if commonly owned and typically used by law-abiding citizens for lawful purposes” (p27). Because the panel found that LCMs are not unusual, it did not need to analyze dangerousness.
  3. Longstanding and Presumptively Lawful? The panel concluded that LCM prohibitions are not longstanding. The court noted the difficulty in figuring out how long a regulatory tradition must be to qualify as “longstanding,” but concluded that “[i]n our circuit, we have looked for evidence showing whether the challenged law traces its lineage to founding-era or Reconstruction-era regulations” (p28). Finding that regulations on LCMs are relatively recent, it concluded there’s no longstanding tradition.
  4. Historical Evidence? The panel finally concluded that there is no persuasive record of LCMs falling outside the scope of the Second Amendment.

Because the first step led to the conclusion that LCMs fall within the scope of the Second Amendment, the court moved to step two.

Applying Step Two

In applying the step-two analysis, the court addressed the two additional questions.

  1. Core of the Right? According to the panel, LCM possession for self-defense purposes in the home is prohibited, so the regulation strikes at the core of the Second Amendment right. The panel called this one easy: “If a law regulating arms adversely affects a law-abiding citizen’s right of defense of hearth and home, that law strikes at the core Second Amendment right” (p32).
  1. Substantial Burden? The panel found that the ban regulates core rights in a substantial way. Here, the court leveraged the (Heller-endorsed) purpose or underlying value of the Second Amendment: self-defense. In fact, in many places of this section, the panel seemed to equate the two. The panel emphasized—with another lengthy history—the importance of “the fundamental right to self-defense” for marginalized groups, including Black Americans, other communities of color, women who suffer intimate partner violence, and members of the LGBT community. Self-defense is essential and that, for the panel, means the Second Amendment is too. “[T]he Second Amendment is not a relic relevant only during the era of Publius and parchments. It is a right that is exercised hundreds of times on any given day.” (p39). The burden on this self-defense right is substantial, said the panel, because of the law’s “sweeping scope and breathtaking breadth” (p40). It bans all possession, even in the home. “It does not matter that these magazines are not unusual and are used commonly in guns for self-defense” (p40). The panel rejected as a “policy argument” the state’s rejoinder that the law imposes no substantial burden because citizens can defend themselves with non-LCMs. The panel said it would not “engage in a policy decision that weighs the pros and cons of an LCM ban to determine ‘substantial burden’” (pp41-42). Thus, concluded the panel, “a law that takes away a substantial portion of arms commonly used by citizens for self-defense imposes a substantial burden on the Second Amendment” (p 42).

Because it concluded that the law is a substantial burden on the core right, the panel applied strict scrutiny. And the law failed that test because it is not tailored to the government’s interest. The law provided no relevant exceptions and did not grandfather lawful possession in. “There is also no stopping point to the state’s argument. Under its logic, California could limit magazines to as few as three bullets and not substantially burden Second Amendment rights because, on average, 2.2 bullets are used in every defensive encounter according to one study” (p49).

The panel also concluded that, for essentially the same reasons of breadth and scope, the law would  have failed intermediate scrutiny. It also criticized other circuits for watering down what real intermediate requires. “Whatever its precise contours might be, intermediate scrutiny cannot approximate the deference of rational basis review” (61).

In her dissent, Judge Lynn parted ways with the majority most forcefully on whether the law imposed a substantial burden on the right. LCMs are not, according to the dissent, a “class of arms” and nothing in the law regulates or restricts the rights of Californians to use magazines with fewer than ten rounds. Although Heller might foreclose reliance on another class of arms to prove constitutionality—like rifles if handguns are banned—the dissent says intra-class alternatives are very relevant to the degree of the burden.

I suspect the state may be interested in seeking review before an en banc panel of the Ninth Circuit. Even though the majority of judges on the Ninth Circuit were appointed by Democratic presidents, the circuit’s unique way of handling en banc cases (in which fewer than all judges participate) means that it is possible for the en banc panel to still be populated with more Republican-president appointed judges. The case could be far from over, but it certainly signals an important development in the Second Amendment case law.

Unbannable Arms?

When it comes to the “Arms” protected by the Second Amendment, the conceptual space is typically divided into two categories. Some weapons, like those that are “dangerous and unusual,” can be banned without raising any constitutional problems. For those that are not dangerous and unusual, the government has to satisfy some requisite level of scrutiny. But—and I hate to do this again, having just made a conceptually similar argument about the Two Part test—there also seems to be a third category: Weapons that cannot be banned without categorically violating the Second Amendment.

Heller itself provides a ready example. The Court there applied no particular form of means-end scrutiny, instead writing that DC’s “handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” The Court concluded that handguns have a unique relationship to the core Second Amendment interest in self-defense, and no prohibition on them can be justified:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. . . . Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

The availability of other weapons for self-defense—long guns, for example—was therefore not enough to save DC’s law.

What arguably emerges from Heller, then, are not two but three categories of arms. “Dangerous and unusual” weapons are categorically excluded from coverage and can be banned without raising any constitutional concerns. They are the equivalent of libel or securities fraud under the First Amendment. Weapons “in common use” are covered by the Second Amendment, so bans involving them are subject to scrutiny—a prohibition on high-powered rifles or high capacity magazines, for example, must be appropriately tailored to a sufficient government interest. Finally, within the general set of constitutionally covered common-use weapons, some classes cannot be banned, regardless of the efficacy of the law or the government interests involved. This last category includes handguns, which Heller emphasized have a unique connection to self-defense. Are there other classes of arms that are similarly immune from bans? (I try to unpack that and related questions in “Bans,” which is forthcoming soon in the Yale Law Journal and from which some of this discussion is drawn.)

Some judges seem to have concluded that any arm (or “hardware”) in common use is immune to prohibition. In Duncan v. Becerra—an unusual opinion involving California’s restriction on high capacity magazines, which, it’s safe to say, will not be the last word on the subject—the district court concluded that Heller provides a test that is “simple” and “crystal clear.” According to the judge in that case, “It is a hardware test. Is the firearm hardware commonly owned? Is the hardware commonly owned by law-abiding citizens? Is the hardware owned by those citizens for lawful purposes? If the answers are ‘yes,’ then the test is over.”

The test is simply stated, perhaps, but hardly “crystal clear” in practice, for reasons that Eugene Volokh and many others have pointed out ever since Heller. What counts as “common”? For that matter how does one separate one set of “hardware” from another? For purposes of evaluating constitutionality in a case involving high-capacity magazines, does one count all magazines over 10 rounds? 20?

The definitional problems are even harder when one tries to apply them to firearms. Handguns might seem like a natural category, and maybe it is. But if one tries to get much more specific than that, the divisions feel less like a taxonomic exercise and more like an effort to list cosmetic features. Indeed, one common line of argument against assault weapons bans is that they are an irrational effort to target scary-looking guns. But that definitional argument cuts both ways. If would-be regulators can’t define a class of arms with requisite precision, can gun rights advocates do any better?

Fundamentally, though, the problem has less to do with definitions than it does with constitutional principle. Under what plausible account of the right to keep and bear arms should a weapon’s commonality render it immune to prohibition? What Second Amendment value does that protect? Adopting a rule that is “crystal clear” but tracks no underlying constitutional principle means not just elevating form over substance, but actually ignoring the latter.

In their concurring opinion in Caetano, Justices Alito and Thomas wrote that “the right to bear other weapons is ‘no answer’ to a ban on the possession of protected arms,” citing Heller. But the cited passage from Heller (the one quoted above) says only “[i]t is no answer to say … that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” And since Heller also emphasizes that “ the American people have considered the handgun to be the quintessential self-defense weapon,” the passage seems to be saying only that there is no adequate alternative to handguns, not that the Second Amendment forbids any consideration of adequate channels of self-defense.

If handguns are the quintessential self-defense weapon, then it seems clear that long guns—including semi-automatic rifles—cannot be. They might be important, and they might be constitutionally protected, but that doesn’t make them immune to prohibition. As the D.C. Circuit put it in Heller II:

We simply do not read Heller as foreclosing every ban on every possible sub-class of handguns or, for that matter, a ban on a sub-class of rifles. . . . [T]he Court in Heller held the District’s ban on all handguns would fail constitutional muster under any standard of scrutiny because the handgun is the “quintessential” self-defense weapon. The same cannot be said of semi-automatic rifles.

In short, the fact that the handgun ban in Heller went too far and was per se unconstitutional does not mean that all “class of arms” rules should be subject to the same treatment.

I suspect that per se rules will continue to gain support among some judges, especially those who see themselves as limiting judicial discretion and providing principled protection for gun rights. I have my doubts that invocation of “bans” will deliver on either of those values.

Two New Second Amendment Cert Petitions

In the last few weeks, two new cert petitions have been filed asking the Supreme Court to review recurrent issues in litigation over the right to keep and bear arms. Below are links to the petitions and excerpts of their Questions Presented. We’ll be watching these as the Court comes back to a new Term next week.

Medina v. Barr: this challenge from the D.C. Circuit focuses on 922(g)(1), the felon dispossession statute. The petition for certiorari was filed on August 30th. Alan Gura (who argued Heller) represents the challengers. The response is due November 4th. Here’s the QP:

Nearly thirty years ago, Jorge Medina was convicted of one felony count of making a false statement to a lending institution in violation of 18 U.S.C. § 1014.

Medina was not imprisoned. The bank sustained no loss, and would resume doing business with him.

Medina is a successful entrepreneur and family man, with no record of violence. Yet on account of his single false statement conviction, 18 U.S.C. § 922(g)(1) permanently bars Medina’s possession of firearms.

The Third, Seventh, and D.C. Circuits hold that individuals convicted of felonies may challenge the application of firearm dispossession laws under the Second Amendment, although the basis for such challenges remains disputed. The First, Eighth, and Ninth Circuits have expressed openness to such challenges, while the Fourth and Tenth Circuits bar them. The D.C. Circuit below reiterated that as-applied challenges to felony firearm dispossession laws are theoretically possible, but rejected Medina’s claim for such relief.

 The question presented is:

Whether the Second Amendment secures Jorge Medina’s right to possess arms, notwithstanding his conviction for making a false statement to a lending institution 29 years ago.

The other new one is Worman v. Healy: this challenge from the First Circuit attacks Massachusetts’ ban on assault-type weapons and high capacity magazines. The petition for certiorari was filed on Sept. 23rd. The firm Bradley Arant represents the challengers. The response is due Oct. 25th. Here’s the QP:

This Court exhaustively analyzed the text, history, and tradition of the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008), concluding that the Second Amendment enshrines an individual right of self-defense, id. at 595, and protects common firearms that are “typically possessed by law-abiding citizens for lawful purposes,” id. at 625. The Court struck down the District of Columbia’s ban on possession of handguns and operable rifles and shotguns, holding a ban on arms typically possessed for lawful purposes is inconsistent with the Second Amendment’s text, history, and tradition. Id. at 627–29. This Court confirmed Heller’s standard and applied it to the states in McDonald v. City of Chicago, 561 U.S. 742, 790–91 (2010). Six years later, the Court made clear the Heller standard was to be applied in reviewing the constitutionality of a state ban on possession of stun guns. Caetano v. Massachusetts, 136 S. Ct. 1027, 1027–28 (2016) (per curiam).

Massachusetts prohibits the possession of firearms and ammunition magazines that are typically possessed by law-abiding, responsible citizens for lawful purposes, including self-defense. The court of appeals rejected Heller’s text, history, and tradition standard, instead applying a two-part approach to uphold the ban under intermediate scrutiny. App. 11–28.

The question presented is:

Does Massachusetts’ ban unconstitutionally infringe the individual right to keep and bear arms under the Second Amendment?