The Volokh Conspiracy
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Second Amendment Roundup: A Double Shot of Oral Arguments
“Large-capacity” magazines and semiautomatic rifles are “bearable arms” in common use, no different from the handguns in Heller, but will two en banc courts agree?
Once it decided N.Y. State Rifle & Pistol Ass'n v. Bruen (2022), the Supreme Court acted on several Second Amendment cases it had been holding, granting petitions for writs of certiorari, vacating the judgments, and remanding the cases for reconsideration in light of Bruen. One was a challenge to California's ban on magazines holding over ten rounds, and another was Maryland's "assault weapon" ban. With sparks aplenty flying, these cases were argued en banc on March 19 and 20 before the Ninth and Fourth Circuits respectively.
These cases should be decided in favor of a straightforward application of the constitutional test for addressing challenges to "arms ban" laws set forth in District of Columbia v. Heller.
Bruen simply made more explicit the "plain text first, and then historical analogue laws second" methodology adopted by Heller when it declared that the District of Columbia's handgun ban violated the Second Amendment. Applying that methodology, Heller held that arms that are in common use by Americans for lawful purposes cannot be banned.
First, as a matter of plain text, Heller held that the Second Amendment extends, "prima facie, to all instruments that constitute bearable arms." And Heller made clear that "arms" includes all "weapons." If the instruments in question are bearable arms, the burden shifts to the government to provide a sufficient number of representative historical analogue laws (not the musings of anti-gun historians) from our early history to demonstrate that the challenged arms ban falls within the country's tradition of firearms regulation. In fact, the American tradition of firearms regulation is really a history of no or very limited prohibition of arms.
Second, Heller looked at two historical traditions that spoke to the arms ban question. At the outset, the Heller Court acknowledged the history of Americans bringing their own privately-owned firearms and ammunition with them to militia musters. These protected weapons were "in common use at the time" for lawful purposes such as self-defense. The Court further found that the "in common use" test was "fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"
Putting these two historical practices together, the Court held that arms that are "in common use," and therefore not "dangerous and unusual," cannot be banned. In other words, Heller already conducted the historical analysis for arms ban cases, and it concluded that once an arm is found to be "in common use" – and therefore by definition not "dangerous and unusual" – there is no more work to be done. That arm cannot be banned, period.
Because millions and millions of law-abiding Americans possess both the magazines banned by California and the rifles banned by Maryland, those bans are unconstitutional under a straightforward reading of Heller.
Unfortunately, the en banc Fourth and Ninth Circuits appear to be poised to defy Heller and hold that the California and Maryland laws are constitutional.
In Duncan v. Bonta, the Ninth Circuit after the Bruen remand sent the case back down to the Southern District of California, where Judge Roger T. Benitez found that the magazine ban violates the Second Amendment. Instead of allowing an appeal to a three-judge panel, which is the normal process, the Ninth Circuit ordered a hearing en banc before the same judges who had upheld the ban en banc before Bruen.
In Bianchi v. Brown, a Fourth Circuit panel heard arguments in December 2022. Before the panel could rule, a hearing en banc was ordered.
In both circuits, occasionally a panel has invalidated a firearm restriction under the Second Amendment, only to be overturned by the court en banc. In the Ninth Circuit in particular, it seems to be an automatic rule that a favorable Second Amendment panel decision will be overturned en banc. Indeed, Judge Van Dyke criticized his court for its "single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed." A skeptic might speculate that the majorities in each court voted to skip the panel stage in order to decide the cases "right" en banc.
Oral argument in Duncan took place on March 19. Michael Mongan's argument for California offered several reasons for sustaining California's magazine ban, but none have merit. Mongan first suggested that the ban was reasonable as it placed no limit on the number of ten-round magazines or the amount of ammunition a person could use. But that is irrelevant under Heller, where the Court rejected the argument that D.C.'s handgun ban could be sustained because individuals in the District could still possess long guns. The question is whether magazines holding over ten rounds are in common use, and there can be no dispute that they are.
Mongan then argued that a firearm with an over-ten-round magazine is not an "arm" because it will function with a ten-round magazine. It is true that it can function, but that is not the test. California's ban has the effect of banning an entire category of semiautomatic firearms: those firearms (both rifles and handguns) capable of firing more than ten rounds without reloading. And California's argument would have no logical stopping point. The same reasoning would lead to the conclusion that firearms could be limited to a single shot.
It was next suggested that numerosity cannot be the test because there are 700,000 registered machine guns in the country, and Heller suggested that machine guns can be banned. But the 700,000 number is inflated. As the Fifth Circuit explained in Hollis v. Lynch, only about 176,000 of those are eligible to be registered to civilians, with the rest being possessed by state and local law enforcement agencies or federally-licensed firearm dealers (FFLs). Regardless, 176,000 is not only below the 200,000 stun guns found to be "in common use" in Justice Alito's concurrence in Caetano v. Massachusetts, it is also a far cry from the tens if not hundreds of millions of magazines over ten rounds owned by Americans.
After Mongan concluded, Erin Murphy argued for the Duncan plaintiffs. She was asked whether "use" for purposes of common use requires the actual firing of a firearm in self-defense. The answer clearly is no, for two reasons. First, Heller equated use and possession in this context, explaining that a weapon may be unprotected if it is "not typically possessed by law-abiding citizens for lawful purposes." Second, as the same quote demonstrates, arms are protected if they are commonly possessed for any lawful purpose, not just self-defense.
But aren't "large capacity" magazines in common use because manufacturers push them onto the market? The answer is that no one forces consumers to buy them. They choose them for self-defense because of their capacity, not in spite of it. If marketing dollars made all the difference in popularity, no big-budgeted Hollywood movies would flop spectacularly at the box office. Moreover, no one ever complained about having too much ammunition, especially when they are in a life or death fight with a thug.
Finally, aren't the subject magazines used in horrific crimes? Any firearm is dangerous in the hands of a criminal. They are not dangerous in the hands of law-abiding citizens, whom the Second Amendment protects. The Heller Court invalidated the handgun ban despite Justice Breyer's dissent and an amicus brief highlighting misuse of handguns in crime. Justice Breyer's Bruen dissent likewise expatiated on the use of handguns in crime, including mass shootings.
As Professor Mark W. Smith explains in his article here, Heller's common use test cannot be escaped by pointing to technological developments or new trends in crime. Many of the same arguments were before the Court in Heller, which rejected them. In any event, the language in Bruen about "dramatic technological change" and "unprecedented societal concerns" is part of a description of the methodology that Bruen lays out for lower courts in deciding "other cases" not governed by Heller's "in common use" test or Bruen's principles about licensing systems.
On March 20, the day after the Duncan argument, the challenge to Maryland's "assault weapon" ban in Bianchi v. Brown was argued before the Fourth Circuit en banc. Opening for the appellants, Peter Patterson was immediately bombarded by the phrases "M-16s and the like" and "weapons of war," and the assertion that "the AR-15 is the M-16." Against the averment that a facial attack is improper because "some guns are more dangerous than others," he responded that all of the banned rifles are semiautomatic, just as in Heller the category was all handguns.
Some judges posed extreme hypotheticals. If Congress did not ban machine guns and they got popular, a state couldn't regulate them, right? How about bazookas and nuclear weapons? The questions kept getting more farfetched – it is entirely implausible that bazookas or nuclear weapons will ever be unregulated and possessed by millions of Americans, like the AR-15.
Judge Harvie Wilkinson, who in 2009 called Heller a form of "judicial activism" akin to Roe v. Wade, dominated much of the hearing. He said that he had fired an M16, that its kick was very powerful, and that very little was left of the targets when hit. Judge Wilkinson's statements are inconsistent with reality: the small-caliber 5.56/.223 cartridge used in M-16s and AR-15s is so underpowered that it is a crime in some states to use it for deer hunting (it would quite possibly only injure and not kill the deer). They are supposedly much more dangerous now than the early models. (They still use the same cartridge.) "I'm not familiar with all of the [banned] weapons, but I assume the Maryland legislature was," Judge Wilkinson opined. (Bad assumption.)
More on point, Judge Paul Niemeyer read Bruen's holding that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms," adding that common use trumps any purported historical analogues. Once an item is identifiable as a bearable arm, the burden shifts to the government to show any limits. "If we don't like Bruen," he continued, "we shouldn't be on the court. We don't have to like it."
Next up was Robert Scott from the Maryland Attorney General's office, who insisted on the familiar refrain that "dangerous and unusual" means "dangerous or unusual." Asked whether he would use an AR-15 if five people were to break into his home, he responded that it "would not be well suited." The AR-15 would be in a safe, and by contrast a handgun would be easy to use.
Counsel's refrain that the AR-15 is not "suitable for self-defense," it was pointed out by one judge, ignored the step one presumption that it is a bearable arm. The state may regulate it only if it is dangerous and unusual. The burden is on the state to show that nearly thirty million such rifles are not in common use. Counsel insisted that "assault weapons" are excluded from protected "arms" in the first step.
In rebuttal, Mr. Patterson analogized how all speech is presumptively protected under the First Amendment at step one, but obscenity and defamation have historically been restricted under step two. Judge Wilkinson interjected again at length, pointing to dramatic leaps in weapon technology over centuries, creating new dangers and new regulations. Neither Heller nor Bruen, he continued, handcuffed states from restricting new lethal weapons. Of course, Judge Wilkinson's questions seemed unconnected to either the fact that Heller already decided the constitutional test for arms ban cases or that Heller, Caetano, and Bruen all make clear that modern arms that did not previously exist are also protected by the Second Amendment.
Counsel responded that common use keeps up with technological development. There is zero history of banning firearms with narrow exceptions like machine guns. As to semiautomatics being more accurate than machine guns, supposedly making them more dangerous, firearms may not be banned on the basis that they are accurate.
But how is common use decided? Is it mere popularity? May a state ban a firearm as dangerous and unusual even if it is in common use? Counsel again pushed back. A firearm in common use cannot be "unusual." As to "dangerous," rifles are used in 350 murders per year, handguns are used in 6500 murders per year, and yet those "dangerousness" figures do not support a handgun ban.
In both the Duncan and Bianchi arguments, one can see a uniform pattern of arguments in support of upholding the respective bans on magazines holding over ten rounds and semiautomatic rifles with certain features. First, what are undeniably "bearable arms" because they are arms that may be borne by a person for offense or defense are somehow not "arms" under the Second Amendment because they are not "suitable" for self-defense and are "weapons of war."
Second, "common use" cannot mean literal common use, and arms may nonetheless be banned because they are "dangerous and unusual." "Common" is apparently not the opposite of "unusual."
Third, commonly-possessed arms may be banned based on supposed historical analogues as far-fetched as Henry VIII's ban on crossbows, 19th century restrictions on carrying Bowie knives concealed, and laws on the setting of trap guns that fire when the owner is not even present. (No matter that Bruen recognized protection of "weapons 'in common use' today…."). And most of those were regulations on the "use" of these weapons and were not "arm bans" of the sort imposed by California and Maryland.
Before Heller, some courts appealed to the "collective rights" theory to deny Second Amendment rights to any individual human being. After Heller trounced that make-believe theory and held arms in common use to be protected, most courts conceded that the subject magazines and firearms are in common use, but added what Bruen called "one step too many" – watered-down intermediate scrutiny, under which the state always won. Painted into a corner, what's left now to uphold bans on common arms, but to claim that these arms are not arms?
When the Supreme Court says "check-mate," the losing chess players invariably try to invent new rules under which it was not check-mate at all. What Article III of the Constitution calls "inferior courts" will continue playing the game until reined in again by the Supreme Court. As to arms in common use, Heller was Act One, and Bruen was Act Two. Stay tuned for Act Three.
