Stephen Halbrook | 4.3.2024 10:01 PM

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........

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