Delaware State Sportsmens Association Inc v. Delaware Department of Safety and Homeland Securit

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

Nos. 23-1633, 23-1634 & 23-1641

_______________

DELAWARE STATE SPORTSMEN’S ASSOCIATION,

INC.; BRIDGEVILLE RIFLE & PISTOL CLUB, LTD.;

DELAWARE RIFLE & PISTOL CLUB; DELAWARE

ASSOCIATION OF FEDERAL FIREARMS LICENSEES;

MADONNA M. NEDZA; CECIL CURTIS CLEMENTS;

JAMES E. HOSFELT, JR.; BRUCE C. SMITH; VICKIE

LYNN PRICKETT; FRANK M. NEDZA,

Appellants in No. 23-1641

v.

DELAWARE DEPARTMENT OF SAFETY & HOMELAND

SECURITY; CABINET SECRETARY, DELAWARE

DEPARTMENT OF SAFETY & HOMELAND SECURITY;

SUPERINTENDENT, DELAWARE STATE POLICE

GABRIEL GRAY; WILLIAM TAYLOR; DJJAMS LLC;

FIREARMS POLICY COALITION, INC.;

SECOND AMENDMENT FOUNDATION,

Appellants in No. 23-1633

v.

ATTORNEY GENERAL OF DELAWARE

CHRISTOPHER GRAHAM; OWEN STEVENS;

FIREARMS POLICY COALITION, INC.;

SECOND AMENDMENT FOUNDATION,

Appellants in No. 23-1634

v.

ATTORNEY GENERAL OF DELAWARE

_______________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Nos. 1:22-cv-00951; 1:22-cv-01500; 1:23-cv-00033)

District Judge: Honorable Richard G. Andrews

_______________

Argued: March 11, 2024

Before: BIBAS, MONTGOMERY-REEVES, and ROTH,

Circuit Judges

(Filed: July 15, 2024)

2

Erin E. Murphy [ARGUED]

CLEMENT & MURPHY

706 Duke Street

Alexandria, VA 22314

Francis G.X. Pileggi

LEWIS BRISBOIS BISGAARD & SMITH

500 Delaware Avenue, Suite 700

Wilmington, DE 19801

Counsel for Appellants Delaware State Sportsmen’s Associ-

ation Inc.; Bridgeville Rifle & Pistol Club Ltd.; Delaware

Rifle & Pistol Club; Delaware Association of Federal

Firearms Licensees; Madonna M. Nedza; Cecil Curtis

Clements; James E. Hosfelt, Jr.; Bruce C. Smith; Vickie

Lynn Prickett; and Frank M. Nedza

Paul D. Clement

Erin E. Murphy [ARGUED]

Mariel A. Brookins

Matthew Rowen

CLEMENT & MURPHY

706 Duke Street

Alexandria, VA 22314

Counsel for Amicus Appellant National Shooting Sports

Foundation

William V. Bergstrom

John D. Ohlendorf [ARGUED]

Peter A. Patterson

David H. Thompson

3

COOPER & KIRK

1523 New Hampshire Avenue, N.W.

Washington, DC 20036

Bradley Lehman

GELLERT SCALI BUSENKELL & BROWN

1201 N. Orange Street, Suite 300

Wilmington, DE 19801

Counsel for Appellants Gabriel Gray; William Taylor;

DJJams LLC; Firearms Policy Coalition, Inc.; Second

Amendment Foundation, Inc.; Christopher Graham; and

Owen Stevens

Stephen P. Halbrook

3925 Chain Bridge Road, Suite 403

Fairfax, VA 22030

Counsel for Amicus Appellant Delaware Association of

Second Amendment Lawyers II

David B. Kopel

INDEPENDENCE INSTITUTE

727 East 16th Avenue

Denver, CO 80203

Counsel for Amicus Appellants National Association of

Chiefs of Police, International Law Enforcement Educa-

tors & Trainers Association, Law Enforcement Legal

Defense Fund, Randy Barnett, Robert Cottrol, Lee Fran-

cis, Nicholas Johnson, Donald Kilmer, George Mocsary,

Joseph Muha, Joseph Olson, Michael O’Shea, Glenn

Reynolds, and Independence Institute

4

Anna M. Barvir

Carl D. Michel

MICHEL & ASSOCIATES

180 E. Ocean Boulevard, Suite 200

Long Beach, CA 90802

Counsel for Amicus Appellants Gun Owners of America,

Inc.; Second Amendment Law Center; California Rifle &

Pistol Association, Inc.; Gun Owners of California, Inc.;

Second Amendment Defense & Education Coalition; Guns

Save Life; Federal Firearms Licensees of Illinois; and

Gun Owners Foundation

Peter M. Torstensen, Jr.

MONTANA ATTORNEY GENERAL’S OFFICE

SOLICITOR GENERAL’S OFFICE

215 N. Sanders Street, P.O. Box 201401

Helena, MT 59620

Counsel for Amicus Appellants Montana, Alabama, Geor-

gia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Missis-

sippi, Missouri, Nebraska, New Hampshire, North

Dakota, South Carolina, South Dakota, Utah, Virginia,

West Virginia, and Wyoming

Garrett B. Moritz

David E. Ross [ARGUED]

ROSS ARONSTAM & MORITZ

1313 N. Market Street, Suite 1001

Wilmington, DE 19801

Kenneth L. Wan

DELAWARE ATTORNEY GENERAL’S OFFICE

5

DELAWARE DEPARTMENT OF JUSTICE

Carvel Office Building

820 N. French Street, 6th Floor

Wilmington, DE 19801

Counsel for Appellees Delaware Department of Safety &

Homeland Security; Cabinet Secretary, Delaware Depart-

ment of Safety & Homeland Security; Superintendent,

Delaware State Police; and Attorney General of Delaware

Jeremy Feigenbaum [ARGUED]

Angela Cai

NEW JERSEY ATTORNEY GENERAL’S OFFICE

Richard J. Hughes Justice Complex

25 Market Street, P.O. Box 112

Trenton, NJ 08625

Counsel for Amicus Appellees New Jersey, Massachusetts,

California, Colorado, Connecticut, District of Columbia,

Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota,

New York, Oregon, Pennsylvania, Rhode Island, Vermont,

and Washington

Janet Carter

EVERYTOWN LAW

450 Lexington Avenue, P.O. Box 4184

New York, NY 10163

Counsel for Amicus Appellee Everytown for Gun Safety

Scott A. Eisman

FRESHFIELDS BRUCKHAUS & DERINGER U.S.

3 World Trade Center

6

175 Greenwich Street, 51st Floor

New York, NY 10007

Counsel for Amicus Appellees Giffords Law Center to

Prevent Gun Violence, Brady Center to Prevent Gun Vio-

lence, and March for our Lives

_______________

OPINION OF THE COURT

_______________

BIBAS, Circuit Judge.

A preliminary injunction is not a shortcut to the merits.

Before granting one, a district court must also weigh the equi-

ties, the public interest, and the threat of irreparable harm. Yet

the challengers here urge us to leapfrog these careful consider-

ations and just resolve the case. They argue that, if a plaintiff

will likely succeed on the merits of a constitutional claim, a

court must grant a preliminary injunction. Not so. This equita-

ble remedy is never automatic: It always involves a district

court’s sound discretion. Key to that discretion is whether an

alleged injury jeopardizes the court’s ability to see a case

through.

Delaware residents and organizations challenged a pair of

new state gun laws in federal court. Then they moved to pre-

liminarily enjoin enforcement of those laws. But the injury

they allege does not threaten the court’s ability to decide the

case or to give meaningful relief later on. We will thus affirm

the District Court’s order denying a preliminary injunction.

7

I. APPELLANTS CHALLENGE TWO

DELAWARE GUN RESTRICTIONS

In mid-2022, Delaware passed a package of gun laws. One

law bans having, making, buying, selling, transporting, or

receiving an “assault weapon.” Del. Code Ann. tit. 11,

§ 1466(a). “[A]ssault weapon[s]” include dozens of specific

semiautomatic long guns and pistols, plus certain types of

“copycat weapon[s].” § 1465(2)–(6). Another law bans having,

making, buying, selling, or receiving a magazine that can hold

more than seventeen rounds. §§ 1468(2), 1469(a). The assault-

weapon ban (though not the large-magazine ban) grandfathers

in guns already owned but limits carrying them publicly.

§ 1466(c)(3). Neither ban applies to members of the military or

law enforcement. §§ 1466(b)(1), 1469(c)(1)–(4).

Soon after these bans became law, the Delaware State

Sportsmen’s Association challenged them in federal court.

Four months later, it sought a preliminary injunction based on

the Second and Fourteenth Amendments. The next day, Gabriel

Gray filed a similar suit and soon sought a preliminary injunc-

tion. Two months after that, Christopher Graham challenged

only the large-magazine ban.

After consolidating these three cases, the District Court

held a preliminary-injunction hearing. The challengers put on

no live witnesses, nor did they offer any evidence that Dela-

ware had tried to enforce these laws or take away their maga-

zines. All they submitted were declarations from three Dela-

ware residents and one Delaware gun dealer who want to buy

or sell assault weapons and large magazines. They offered no

details about how they would be harmed.

8

In March 2023, on that limited “evidentiary record,” the

District Court denied the preliminary injunction. JA 8 & n.2. It

found that the challengers were not likely to succeed on the

merits because both bans “are consistent with the Nation’s his-

torical tradition of firearm regulation.” JA 34. It also refused to

presume that all Second Amendment harms are irreparable.

Rather, because Delaware’s laws “regulate[ ] only a subset of

semi-automatic weapons,” the challengers “retain ample effec-

tive alternatives” to defend themselves. JA 35. Because the

challengers had not borne their burden of showing a likelihood

of success or irreparable harm, the District Court did not reach

the other preliminary-injunction factors.

After denying the preliminary injunction, the District Court

started preparing for a November 2023 trial. Instead of pro-

ceeding to trial, the challengers chose to appeal and put the

District Court proceedings on hold. We heard argument in

March 2024.

We review the District Court’s factual findings for clear

error, its legal rulings de novo, and its ultimate decision for

abuse of discretion. Del. Strong Fams. v. Att’y Gen. of Del.,

793 F.3d 304, 308 (3d Cir. 2015). At this early stage, we review

deferentially because the “denial of a preliminary injunction is

almost always based on an abbreviated set of facts, requiring a

delicate balancing that is the responsibility of the district

judge.” Marxe v. Jackson, 833 F.2d 1121, 1125 (3d Cir. 1987)

(cleaned up).

The challengers focus on the merits. If they are right on

those, they argue, they should get an injunction because all

constitutional harm is supposedly irreparable and the equities

9

and public interest track the merits. But that is not how equity

works. Preliminary injunctions are not automatic. Rather, tra-

dition and precedent have long reserved them for extraordinary

situations. We see nothing extraordinary here.

II. PRELIMINARY INJUNCTIONS ARE

EXTRAORDINARY REMEDIES

A. Chancery’s limits at the Founding still cabin

equitable relief

The judicial power extends to cases in equity. U.S. Const.

art. III, § 2, cl. 1. During the debates over ratifying the Consti-

tution, Anti-Federalists worried that equitable jurisdiction

would give federal judges unchecked discretion. Brutus,

No. XI, N.Y. J., Jan. 31, 1788, reprinted in 2 The Complete

Anti-Federalist 417, 419–20 (Storing ed., 1981) (¶¶ 2.9.137–

38). The Federal Farmer thought it “very dangerous” to give

the same judge both legal and equitable power, because “if the

law restrain him, he is only to step into his shoes of equity, and

give what judgment his reason or opinion may dictate.” Letter

No. 3 (Oct. 10, 1787), reprinted in id. at 234, 244 (¶ 2.8.42).

As equity was a royal power to absolve violations of law, they

worried that granting the courts equitable power would leave

them unbounded by law.

In response, Alexander Hamilton assuaged those legitimate

concerns. He explained that “[t]he great and primary use of a

court of equity is to give relief in extraordinary cases, which

are exceptions to general rules.” The Federalist No. 83, at 505

(Rossiter ed., 1961) (footnote omitted). Looking to Black-

stone’s Commentaries, Hamilton insisted “that the principles

by which that relief is governed are now reduced to a regular

10

system.” Id. at 505 n.*. By the Founding, that system had sta-

bilized into “the practice of the Court of Chancery in England.”

Letter from Timothy Pickering to Charles Tillinghast (Dec. 24,

1787), in 4 The Founders’ Constitution 231 (Kurland & Lerner

eds., 1987).

Hamilton’s understanding of equity prevailed. Congress

gave Article III courts concurrent jurisdiction with state courts

over civil suits in equity. Judiciary Act of 1789, ch. XX, § 11,

1 Stat. 73, 78. The Supreme Court later described this equitable

jurisdiction as constrained by the “body of doctrine” that Chan-

cery applied to “suits in equity” at the Founding. Atlas Life Ins.

Co. v. W.I.S., Inc., 306 U.S. 563, 568 (1939). Even after the

merger of law and equity, “the substantive principles of Courts

of Chancery remain unaffected” to this day. Stainback v. Mo

Hock Ke Lock Po, 336 U.S. 368, 382 n.26 (1949); see also

Petrella v. MGM, Inc., 572 U.S. 663, 678 (2014). “[W]hether

the authority comes from a statute or the Constitution, district

courts’ authority to provide equitable relief is meaningfully

constrained. This authority must comply with longstanding

principles of equity that predate this country’s founding.”

Trump v. Hawaii, 585 U.S. 667, 716 (2018) (Thomas, J.,

concurring).

B. For good reason, injunctions were and still are

extraordinary relief

Injunctions fall within this equitable framework. The Eng-

lish Court of Chancery enjoined parties sparingly. When a

plaintiff’s claim did not fit within one of the narrow common-

law writs, he could petition the King for relief through his

chancellor. See Douglas Laycock, The Death of the

11

Irreparable Injury Rule 19–20 (1991). Over time, the chancel-

lor’s power developed into the Court of Chancery. Id. To keep

equity from swallowing up the common-law courts, Chancery

could enjoin parties only when there was no adequate remedy

at law. Id.

Following Chancery’s supplemental role, early American

law reserved injunctions for exceptional cases. Justice Joseph

Story, for instance, feared that because injunction procedure is

“summary,” it is “liab[le] to abuse.” 2 Commentaries on Equity

Jurisprudence as Administered in England and America

§ 959a, at 227 (2d ed. 1839). Courts must use “extreme cau-

tion” and “appl[y] [injunctions] only in very clear cases.” Id.

Professor James P. Holcombe took an even narrower view.

Because injunctions can irreparably injure parties, courts must

use “great caution,” granting them “only in cases[ ] where [they

are] clearly indispensable to the ends of justice.” An Introduc-

tion to Equity Jurisprudence, on the Basis of Story’s Commen-

taries 150 (1846) (emphasis added).

The Supreme Court largely agreed with Holcombe’s nar-

row view. As it explained, “issuing an injunction” requires

“great[ ] caution, deliberation, and sound discretion.” Truly v.

Wanzer, 46 U.S. (5 How.) 141, 142 (1847) (quoting Bonaparte

v. Camden & A.R. Co., 3 F. Cas. 821, 827 (C.C.D.N.J. 1830)).

Injunctions themselves can inflict harm. Thus, a court should

not grant an injunction unless the plaintiff’s right is clear, his

impending injury is great, and only an injunction can avert that

injury. Id. at 142–43.

Preliminary injunctions raise further problems. For one,

“many preliminary injunctions [are] granted hurriedly and on

12

the basis of very limited evidence.” O Centro Espirita Benefi-

ciente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1015 (10th

Cir. 2004) (en banc) (McConnell, J., concurring). Time pres-

sures limit adversarial testing. Affidavits drafted by lawyers

are poor substitutes for discovery, live testimony, and cross-

examination. And when challengers sue to enjoin enforcement

of a new law, courts must forecast how the law will work.

Plus, this hasty process makes the district court jump to

conclusions. A preliminary injunction “forces a party to act or

desist from acting, not because the law requires it, but because

the law might require it.” Id. at 1014–15. In this sense, it is like

“judgment and execution before trial.” Herman v. Dixon, 141

A.2d 576, 577 (Pa. 1958).

Finally, forecasting the merits risks prejudging them. The

trial process forces judges to keep open minds, considering

questions from every angle before deciding. Preliminary relief

short-circuits that process, freezing first impressions in place.

True, judges will not always stick with those impressions—and

the system trusts judges to update them as a case proceeds—

but this flexibility becomes harder when an impression solidi-

fies into a preliminary ruling. Even if judges keep an open

mind, the parties and the public may see their tentative fore-

casts as the writing on the wall.

For all these reasons, a preliminary injunction “is an extra-

ordinary remedy[ ] [that] should be granted only in limited cir-

cumstances.” Mallet & Co. v. Lacayo, 16 F.4th 364, 391 (3d

Cir. 2021) (internal quotation marks omitted). Unless the need

for one in a particular case outweighs these risks, the court

should not grant one.

13

III. PRELIMINARY INJUNCTIONS PROTECT

COURTS’ POWER TO ADJUDICATE

A. Preliminary injunctions’ primary purpose is to keep

cases alive until trial

Despite these inherent risks, preliminary injunctions are

occasionally warranted. At this stage, “before there has been a

trial on the merits, the function of the court is not to take what-

ever steps are necessary to prevent irreparable harm, but pri-

marily to keep things as they were, until the court is able to

determine the parties’ respective legal rights.” O Centro, 389

F.3d at 1012 (McConnell, J., concurring) (emphasis added).

“Traditional equity practice held that the sole purpose of a pre-

liminary injunction was to preserve the status quo during the

pendency of litigation.” Id. (collecting mid-nineteenth-

through mid-twentieth-century cases).

The Supreme Court has recognized this limited purpose, as

have we. The “purpose of a preliminary injunction is merely to

preserve the relative positions of the parties until a trial on the

merits can be held.” Starbucks Corp. v. McKinney, 144 S. Ct.

1570, 1576 (2024) (quoting Univ. of Tex. v. Camenisch, 451

U.S. 390, 395 (1981)); see also Ortho Pharm. Corp. v. Amgen,

Inc., 882 F.2d 806, 813–14 (3d Cir. 1989); Warner Bros. Pic-

tures v. Gittone, 110 F.2d 292, 293 (3d Cir. 1940) (per curiam).

The goal is to ensure that, at the end of the case, the court can

still grant an adequate remedy.

Our sister circuits concur. Preliminary injunctions exist

“ultimately to preserve the court’s ability to render a meaning-

ful judgment on the merits.” In re Microsoft Corp. Antitrust

Litig., 333 F.3d 517, 525 (4th Cir. 2003), abrogated on other

14

grounds by eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388

(2006); accord Meis v. Sanitas Serv. Corp., 511 F.2d 655, 656

(5th Cir. 1975). That relief is proper only in “the rare case when

a preliminary injunction is necessary to preserve the effective-

ness of the ordinary adjudicatory process.” McKinney ex rel.

NLRB v. S. Bakeries, LLC, 786 F.3d 1119, 1124 (8th Cir.

2015). In short, “the most compelling reason” to grant a pre-

liminary injunction is “to preserve the court’s power to render

a meaningful decision after a trial on the merits.” 11A Charles

Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice and Procedure § 2947, at 112, 114 (3d ed. 2013).

B. Preventing interim harm is at the service of preserving

the case

Though courts recognize this primary purpose, they have

strayed from it and started using preliminary injunctions just to

prevent harm. To be sure, harm prevention has become a valid

reason to grant a preliminary injunction. See id. §§ 2948,

2948.1. But that “is not [its] paramount purpose.” O Centro,

389 F.3d at 977 (Murphy, J., concurring) (citing 11A Wright

& Miller § 2947). “The award of an interlocutory injunction by

courts of equity has never been regarded as strictly a matter of

right, even though irreparable injury may otherwise result to

the plaintiff.” Yakus v. United States, 321 U.S. 414, 440 (1944).

“Only when the threatened harm would impair the court’s abil-

ity to grant an effective remedy is there really a need for pre-

liminary relief.” 11A Wright & Miller § 2948.1, at 129.

Thus, the threat of irreparable harm does not automatically

trigger a preliminary injunction. Sometimes, harm threatens to

moot a case, as when one party’s conduct could destroy the

15

property under dispute, kill the other party, or drive it into

bankruptcy, “for otherwise a favorable final judgment might

well be useless.” Doran v. Salem Inn, Inc., 422 U.S. 922, 932

(1975). Much more often, though, even nonpecuniary injury

does not rise to that level.

The recent drift from preserving cases to preventing interim

harm can stunt litigation. This extraordinary remedy has become

ordinary. All too often, “the preliminary injunction [becomes]

the whole ball game.” Winter v. NRDC, 555 U.S. 7, 33 (2008)

(internal quotation marks omitted). That shortcut exceeds injunc-

tions’ limits. The “purpose of such interim equitable relief is

not to conclusively determine the rights of the parties.” Trump

v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017)

(citing Camenisch, 451 U.S. at 395). Rather, it is supposed to

be “only a prediction about the merits of the case.” United

States v. Loc. 560 (I.B.T.), 974 F.2d 315, 330 (3d Cir. 1992).

Case preservation is thus the main reason that the benefits

of a preliminary injunction may outweigh its risks. Courts may

withhold this extraordinary remedy if a plaintiff’s alleged injury

does not threaten to moot the case. That approach is often, per-

haps usually, the wiser course.

IV. THE DISTRICT COURT PROPERLY DENIED

THE PRELIMINARY INJUNCTION

Though district courts have sound discretion to grant or

deny preliminary injunctions, precedent guides this discretion.

Four canonical guideposts are (1) the likelihood of success on

the merits; (2) the risk of irreparable injury absent preliminary

relief; (3) the balance of equities; and (4) the public interest.

Winter, 555 U.S. at 20. The first two factors are the “most

16

critical.” Nken v. Holder, 556 U.S. 418, 434 (2009). If both are

present, a court then balances all four factors. Id. Because “a

preliminary injunction is an extraordinary and drastic remedy,”

the movant bears the burden of making “a clear showing.”

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)

(quoting and emphasizing 11A Wright & Miller § 2948).

Yet the challengers try to sidestep this framework. They

argue that in constitutional cases, a likelihood of success on the

merits is enough. It is not.

A. Likely success on the merits is not enough for a

preliminary injunction

The challengers and their amici argue that if they win on

the first factor, then the District Court abused its discretion by

denying a preliminary injunction. After all, they reason, con-

stitutional rights are priceless, and the government has no inter-

est in enforcing unconstitutional laws. As they readily admit,

their argument collapses the four factors into one. The Ninth

Circuit has followed that siren. Baird v. Bonta, 81 F.4th 1036,

1042 (9th Cir. 2023) (reasoning that when a party shows the

first factor, it “almost always” shows irreparable harm and “the

merged third and fourth factors [tip] decisively in [its] favor”).

For five reasons, though, we plug our ears to that siren song.

First, “[a] preliminary injunction is an extraordinary rem-

edy never awarded as of right.” Winter, 555 U.S. at 24. Instead,

it “is a matter of equitable discretion” that “does not follow

from success on the merits as a matter of course.” Id. at 32.

Contrary to the challengers’ position, success on the first factor

is not enough.

17

Second, “no test for considering preliminary equitable relief

should be so rigid as to diminish, let alone disbar, discretion.”

Reilly v. City of Harrisburg, 858 F.3d 173, 178 (3d Cir. 2017).

Yet the challengers’ test would do just that, forcing judges to

grant preliminary equitable relief based on only a likelihood of

success on the merits. That cannot be right: “[A] federal judge

sitting as chancellor is not mechanically obligated to grant an

injunction for every violation of law.” Weinberger v. Romero-

Barcelo, 456 U.S. 305, 313 (1982). Judges are not robots, espe-

cially in equity.

Third, “[c]rafting a preliminary injunction … often depend[s]

as much on the equities of a given case as the substance of the

legal issues it presents.” Int’l Refugee Assistance Project, 582

U.S. at 579. The challengers ask us to treat a preliminary injunc-

tion as rising and falling with the merits. But the merits are just

one piece of the puzzle. This equitable remedy calls for courts

to weigh the equities, the public interest, and irreparable harm

too.

Fourth, if the challengers were right, whenever someone

sought a preliminary injunction, courts would always have to

prejudge the merits; but they need not. Even assuming irrepa-

rable injury, the Supreme Court has overturned an injunction

based solely on the balance of equities and the public interest.

Winter, 555 U.S. at 26, 32. In doing so, it “d[id] not address the

underlying merits of plaintiffs’ claims.” Id. at 31. We have

taken this approach too. See Weissbard v. Coty, Inc., 66 F.2d

559, 560 (3d Cir. 1933) (not opining on the merits because the

District Court would be better placed to rule on them after a

“final hearing”). The other factors are independent grounds to

deny relief.

18

Fifth, the challengers’ automatic approach presumes clarity

early on. They perceive a finished drawing, while we see only

the initial sketch. Early in a case, the merits are seldom clear,

even when they seem black and white. The litigation process

gradually adds hues to this monochrome sketch, sharpening the

issues until the trial provides full color. Jumping to conclusions

this early is like finding guilt right after hearing each side’s key

witness, without keeping an open mind long enough to reflect

on their weaknesses. A rushed judgment is a dangerous one;

judges must be humble enough to stay their hands.

Given the background of the rules of equity, we should not

treat the four-factor test as a mechanical algorithm. Law some-

times uses such strict formulae, but equity sees tests as guide-

posts only. They help the court balance the risks of mootness

against the perils of injunctions. Though not all four factors

must weigh heavily in every case, any one factor may give a

district court reason enough to exercise its sound discretion by

denying an injunction. Reilly, 858 F.3d at 177–79 (not all fac-

tors required). “When one factor is dispositive, a district court

need not consider the others.” D.T. v. Sumner Cnty. Schs., 942

F.3d 324, 327 (6th Cir. 2019).

Because we must weigh all the factors before granting relief,

we may take the factors out of order, as Winter and Weissbard

did. We start by considering whether the alleged harm is irrep-

arable. We see no evidence that it is. Plus, failing to grant interim

relief would not moot this case.

19

B. Except in First Amendment cases, we do not

presume constitutional harms irreparable

The challengers bear the burden of proving irreparable injury;

yet they ask us to lift that burden from their shoulders by

presuming all constitutional harms irreparable. We will not.

Presuming irreparable harm is the exception, not the rule. Plus,

the presumption they propose would trample on traditional

principles of equity.

Equity is contextual. It turns on the facts, and it supple-

ments remedies at law only when needed. When lower courts

have tried to harden equitable standards into rules, the Supreme

Court has rebuked them. For example, a district court presumed

that patent holders who do not practice their patents and are

willing to license them cannot suffer irreparable injury. eBay,

547 U.S. at 393. In response, the Federal Circuit tilted to the

other extreme, adopting a rule that made patent-infringement

injunctions all but automatic. Id. at 393–94. The Supreme

Court, however, rejected both such “broad classifications” as

foreign to equity. Id. at 393. Rather, it held that district courts

must apply their equitable discretion to the facts of each case,

guided by “traditional principles of equity.” Id. at 394.

True, our sister circuits have presumed harm in various set-

tings. See Baird, 81 F.4th at 1042 (Second Amendment);

Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (Fourth

Amendment); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.

1984) (Eighth Amendment).

We respectfully decline to do the same. As we have explained,

“[c]onstitutional harm is not necessarily synonymous with the

irreparable harm necessary for issuance of a preliminary

20

injunction.” Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989).

We explicitly refused to presume that an alleged equal-protection

violation irreparably injured the plaintiff. Constructors Ass’n

of W. Pa. v. Kreps, 573 F.2d 811, 819–20 (3d Cir. 1978). Even

as some courts presumed constitutional harms irreparable, we

still favored “traditional prerequisites for injunctive relief”

over categorical presumptions. Anderson v. Davila, 125 F.3d

148, 164 (3d Cir. 1997).

The challengers suggest that we applied such a presumption

to Fourth Amendment violations in Lewis v. Kugler, 446 F.2d

1343 (3d Cir. 1971). We did not. That case did deal with an

unreasonable search and seizure. Id. at 1344. But the irrepara-

ble harm there came because the plaintiffs had “alleged that

First Amendment rights have been chilled as a result of gov-

ernment action.” Id. at 1350 n.12 (capitalization added).

That case highlights the exception to our rule: we presume

that First Amendment harms are irreparable. Roman Cath. Dio-

cese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (per curiam);

K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99,

113 (3d Cir. 2013); Chaplaincy of Full Gospel Churches v.

England, 454 F.3d 290, 300 (D.C. Cir. 2006) (collecting

cases).

Unique First Amendment doctrines warrant that exception.

Take the “heavy presumption” against prior restraints on

speech. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).

First Amendment activity, like weekly worship and political

speech, can be especially time-sensitive. See Roman Cath. Dio-

cese, 592 U.S. at 19; Elrod v. Burns, 427 U.S. 347, 374 n.29

(1976) (plurality opinion). We thus presume that prior restraints

21

are unconstitutional because we fear “communication will be

suppressed … before an adequate determination that it is unpro-

tected by the First Amendment.” Pittsburgh Press Co. v. Pitts-

burgh Comm’n on Hum. Rels., 413 U.S. 376, 390 (1973). As a

rule, then, the government may not preliminarily enjoin

speech. Mark A. Lemley & Eugene Volokh, Freedom of

Speech and Injunctions in Intellectual Property Cases, 48

Duke L.J. 147, 169–72 (1998).

Or take courts’ deference to sincere religious belief. Courts

are ill-suited to weigh religious harms, much less assess

whether they would be irreparable. If a believer’s religious

scruples are sincere, courts will not second-guess their central-

ity. See Holt v. Hobbs, 574 U.S. 352, 361–62 (2015); Thomas

v. Rev. Bd. of the Ind. Emp. Sec. Div., 450 U.S. 707, 716

(1981). This deference comes from the longstanding principle

that “the judges of the civil courts” are not as “competent in the

ecclesiastical law and religious faith.” Watson v. Jones, 80 U.S.

679, 729 (1871). This history, though, limits the principle to

the First Amendment.

Thus, when weighing preliminary injunctions, courts may

presume that suppressing speech or worship inflicts irreparable

injury. But this presumption is the exception, not the rule. We

will not extend it.

C. At this early stage, the challengers have failed to

show irreparable harm

Without a presumption in their favor, the challengers’ claim

of irreparable harm collapses. They must show that, without a

preliminary injunction, they will more likely than not suffer

irreparable injury while proceedings are pending. Reilly, 858

22

F.3d at 179. To satisfy that burden, they submitted only four

declarations from Delaware residents who “wish to obtain

these firearms and magazines.” Oral Arg. Tr. 5:9–10. They do

not even allege that Delaware has tried to enforce the disputed

laws against them or to seize the guns or magazines that they

already own. Nor do they allege a time-sensitive need for such

guns or magazines. This status quo shows no signs of chang-

ing. Thus, the challengers have not shown that a preliminary

“injunction is required to preserve the status quo” while litiga-

tion is pending. Warner Bros., 110 F.2d at 293.

Plus, given preliminary injunctions’ inherent risks, the

challengers’ generalized claim of harm is hardly enough to call

for this “extraordinary and drastic remedy.” Mazurek, 520 U.S.

at 972. The harm they allege is a far cry from “media compa-

nies hav[ing] to alter their editorial policies and posting prac-

tices to comply with [a] new speech law” or “businesses

hav[ing] to restructure their operations or build new facilities

to comply with the new [environmental] regulations” for years

while they challenge these regulations. Labrador v. Poe ex rel.

Poe, 144 S. Ct. 921, 929 (2024) (Kavanaugh, J., concurring).

What is more, the challengers offered no evidence that without

a preliminary injunction, the District Court will be unable to

decide the case or give them meaningful relief. Thus, the court

properly found no irreparable harm.

We rule only on the record before us. The challengers have

shown no harms beyond ones that can be cured after final judg-

ment. That finding alone suffices to support the District

Court’s denial of a preliminary injunction. Pennsylvania ex rel.

Creamer v. U.S. Dep’t of Agric., 469 F.2d 1387, 1388 (3d Cir.

1972) (per curiam). We do not hold that Second Amendment

23

harms, or constitutional harms generally, cannot be irreparable.

Still, the scant evidence before us here hardly shows that the

challengers’ harm is.

We also limit our analysis of irreparable injury to this pre-

liminary injunction. For permanent injunctions, courts focus

not on preserving the case and avoiding interim harms, but on

whether the remedy at law is adequate. Emily Sherwin & Sam-

uel L. Bray, Ames, Chafee, and Re on Remedies 653 (3d ed.

2020). We do not decide here whether the challengers should

get a permanent injunction if they win on the merits.

D. The other factors also support denying the injunction

Even if the challengers had shown an irreparable injury, the

third and fourth factors would weigh against a preliminary

injunction, as in Winter. Those factors, harm to the opposing

party and the public interest, “merge when the Government is

the opposing party.” Nken, 556 U.S. at 435. They call for cau-

tion because this injunction threatens federalism and the sepa-

ration of powers—“[t]wo clear restraints on the use of the equity

power.” Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas,

J., concurring).

The challengers seek to enjoin enforcement of two demo-

cratically enacted state laws. Courts rightly hesitate to interfere

with exercises of executive or legislative authority. Rathke v.

MacFarlane, 648 P.2d 648, 651 (Colo. 1982) (en banc); cf.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–

38 (1952) (Jackson, J., concurring). “There is always a public

interest in prompt execution” of the laws. Nken, 556 U.S. at 436.

24

That is doubly true when federal courts are asked to block

states from enforcing their laws. See, e.g., Younger v. Harris,

401 U.S. 37, 53–54 (1971). A federal court must weigh how

best to deal with state laboratories of democracy. On a com-

plete record, the duty of the federal court sometimes includes

correcting a state that goes beyond the U.S. Constitution’s

bounds. Without the clarity of a full trial on the merits, though,

we must err on the side of respecting state sovereignty. Dela-

ware’s legislature passed these bills, and Delaware’s governor

signed them into law. “Any time a State is enjoined by a court

from effectuating statutes enacted by representatives of its peo-

ple, it suffers a form of irreparable injury.” Maryland v. King,

567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers)

(brackets and internal quotation marks omitted).

Plus, Delaware Sportsmen delayed seeking a preliminary

injunction. A classic maxim of equity is that it “assists the dil-

igent, not the tardy.” Sherwin & Bray 441. The logic behind

preliminary injunctions follows the general logic of equity:

“[T]here is an urgent need for speedy action to protect the

plaintiffs’ rights. Delay in seeking enforcement of those rights,

however, tends to indicate at least a reduced need for such dras-

tic, speedy action.” Citibank, N.A. v. Citytrust, 756 F.2d 273,

276 (2d Cir. 1985). Delaware Sportsmen’s four-month delay

suggests that it felt little need to move quickly. Its continuing

delay as it chooses not to hasten to trial does not help its case.

Thus, the final two factors support denying a preliminary injunc-

tion as well.

25

V. THE CHALLENGERS HAD OTHER WAYS

TO GET RELIEF PROMPTLY

Our decision today leaves open several ways to vindicate

constitutional rights promptly. First, a district court may move

up the trial to consolidate it with the preliminary-injunction

hearing. Fed. R. Civ. P. 65(a)(2). Second, the court may con-

vert a preliminary-injunction motion into a summary-judgment

motion if they first give the parties enough notice. See Air Line

Pilots Ass’n, Int’l v. Alaska Airlines, Inc., 898 F.2d 1393, 1397

n.4 (9th Cir. 1990). Third, rather than move for a preliminary

injunction, the parties may agree to an accelerated trial. See

11A Wright & Miller § 2948.1 & n.1.

Those approaches have many advantages. Often, “it would

be more efficient to consolidate the trial on the merits with the

motion for a preliminary injunction under Rule 65(a)(2).” Mor-

ton Denlow, The Motion for a Preliminary Injunction: Time

for a Uniform Federal Standard, 22 Rev. Litig. 495, 534

(2003). Here, for instance, the trial would have happened in

November 2023. Final rulings on the merits would resolve issues

definitively and let us review legal rulings de novo on fully

developed records. This preliminary posture, by contrast, just

encourages snap judgments in the abstract.

*****

A preliminary injunction is not a first bite at the merits.

Rather, it is an extraordinary, equitable remedy designed to pro-

tect the court’s ability to see the case through. It risks cementing

hasty first impressions. We trust district courts to reserve this

drastic remedy for drastic circumstances. Because the District

26

Court did so here, we affirm its order denying a preliminary

injunction. We express no view of the merits.

27

ROTH, Circuit Judge, concurrence

Although I concur with the result reached by the

Majority, I write separately to address the plaintiffs’ likelihood

of success on the merits and, briefly, the balance of the equities

and public interest. These additional thoughts may guide

future litigants in formulating any steps that they may take

following this decision.

As the Majority observes, a court may deny a

preliminary injunction under “any one” of the four factors.1

The District Court did so because plaintiffs failed to establish

a likelihood of success on the merits2—the first of the two

“most critical”3 factors—and addressed irreparable harm “for

thoroughness only.”4 By contrast, the Majority affirms the

denial of injunctive relief solely based on a lack of irreparable

harm.5 While I agree that plaintiffs failed to demonstrate

irreparable harm, I believe it would be helpful to future

litigants to present a full discussion. As the District Court held,

I believe that plaintiffs are not likely to succeed on the merits

of their constitutional claim.

Moreover, because I also believe that none of the assault

weapons and LCMs at issue are “Arms” protected by the

1

Maj. Op. 19.

2

See Delaware State Sportsmen’s Ass’n, Inc. v. Delaware Dep’t

of Safety & Homeland Sec., 664 F. Supp. 3d 584, 590-603 (D.

Del. 2023).

3

Maj. Op. 16-17 (quoting Nken v. Holder, 556 U.S. 418, 434

(2009)).

4

Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at 603

n.17.

5

Maj. Op. 26-27.

1

Second Amendment, I would hold that plaintiffs’ challenge to

Delaware’s laws fails at Bruen’s first step, not its second.6

I. Governing Law

“In a crisp, if not enigmatic, way,”7 the Second

Amendment provides: “A well regulated Militia, being

necessary to the security of a free state, the right of the people

to keep and bear Arms, shall not be infringed.”8 In interpreting

its meaning, we are guided by the principle that “the

Constitution was written to be understood by the voters; its

words and phrases were used in their normal and ordinary as

distinguished from technical meaning.”9 “Normal and

ordinary meaning” is that which would “have been known to

ordinary citizens in the founding generation.”10 Therefore, our

interpretation of the Second Amendment—and our

understanding of the “Arms” it protects in the present

moment—is necessarily informed and cabined by history and

Supreme Court precedent discussing the same.11

6

The District Court determined that assault long guns and

LCMs are “Arms” protected by the Second Amendment, but

assault pistols and copycat weapons are not. See Delaware

State Sportsmen’s Ass’n, 664 F. Supp. 3d at 593-97.

7

Bevis v. City of Naperville, 85 F.4th 1175, 1188 (7th Cir.

2023).

8

U.S. Const. amend. II.

9

D.C. v. Heller, 554 U.S. 570, 576 (2008) (cleaned up).

10

Id. at 577.

11

See, e.g., id. at 595 (“There seems to us no doubt, on the

basis of both text and history, that the Second Amendment

conferred an individual right to keep and bear arms.”)

(emphasis added). As used herein, the term “Arms” refers to

2

We thus turn to the “normal and ordinary” meaning of

the phrase “keep and bear Arms” as it is used in the Second

Amendment.12 The Supreme Court’s decision in District of

Columbia v. Heller is our north star.13 In Heller, the Court

instructed that the founding-era meaning of the word “Arms”

“is no different from the meaning today.”14 Contemporaneous

dictionaries defined “arms” as “weapons of offence, or armour

of defence,” or “any thing that a man wears for his defence, or

takes into his hands, or useth in wrath to cast at or strike

another.”15 Most importantly, the term was applied “to

weapons that were not specifically designed for military use

and were not employed in a military capacity.”16 The Court

then went on to explain that the most natural reading of “keep

Arms” is simply to have or possess weapons.17 By contrast,

“bear Arms” means something else. By itself, to “bear” meant,

then as now, to “carry.”18 But when used with “Arms,” “bear”

referred “to carrying for a particular purpose—

weapons that are protected under the Second Amendment

while “arms” refers to weapons generally.

12

Id. at 576.

13

554 U.S. 570 (2008).

14

Id. at 581.

15

Id. (alterations omitted) (citing definitions of “arms” from

“[t]he 1773 edition of Samuel Johnson’s dictionary” and

“Timothy Cunningham’s important 1771 legal dictionary”).

16

Id. (“Cunningham’s legal dictionary gave us as an example

of usage: ‘Servants and labourers shall use bows and arrows

on Sundays, &c. and not bear other arms.’”) (emphasis in

original).

17

Id. at 582-83 (confirming this reading by consulting

historical sources).

18

Id. at 584.

3

confrontation.”19 Accordingly, to “bear Arms” means to carry

weapons “for the purpose . . . of being armed and ready for

offensive or defensive action in a case of conflict with another

person.”20

At first blush—especially in light of the prefatory

clause’s reference to “[a] well-regulated Militia”—it might

seem nonsensical that the Arms referred to in the Second

Amendment do not include those “specifically designed for

military use.”21 The Court’s discussions of founding-era

history in United States v. Miller and Heller clear things up.22

When the Second Amendment was ratified, the term “Militia”

referred to “all males physically capable of acting in concert

for the common defense.”23 At that time, the “Militia” was “set

in contrast with Troops which [States] were forbidden to keep

without the consent of Congress.”24 “Troops” were “standing

19

Id.

20

Id. Heller expressly endorsed the definition Justice Ginsburg

set forth in her dissent in Muscarello v. United States, 524 U.S.

125 (1998). In analyzing the meaning of the phrase “carries a

firearm” as it was used in a federal criminal statute, Justice

Ginsburg observed that “[s]urely a most familiar meaning is,

as the Constitution’s Second Amendment (“keep and bear

Arms”) . . . indicate[s]: ‘wear, bear, or carry . . . upon the person

or in the clothing or in a pocket, for the purpose . . . of being

armed and ready for offensive or defensive action in a case of

conflict with another person.” Muscarello, 524 U.S. at 143

(quoting Black’s Law Dictionary 214 (6th ed. 1990)).

21

Heller, 554 U.S. at 581.

22

U.S. v. Miller, 307 U.S. 174 (1939); Heller, 554 U.S. 570.

23

Miller, 307 U.S. at 179.

24

Id. at 178-79.

4

armies” made up of soldiers, while the “Militia” was made up

of ordinary citizens who would “appear bearing arms supplied

by themselves and of the kind in common use at the time” when

called to serve.25 As a result, the “small-arms weapons” used

by the “Militia” and the weapons “used in defense of person

and home were one and the same.”26

Heller held that the Second Amendment confers an

individual right to keep and bear “Arms” for self-defense—

weapons akin to those to those that ordinary citizen-militiamen

would keep at home and bring when called to duty—and thus

protected respondent’s right to keep and bear a handgun.

However, Heller also made clear that “the right [is] not a right

to keep and carry any weapon whatsoever and for whatever

purpose.”27 Most importantly for our purposes, Heller

recognized that right “extends only to certain types of

weapons.”28 While “the Second Amendment extends, prima

facie, to all instruments that constitute bearable arms,” it does

not protect “dangerous and unusual weapons.”29 Among the

“dangerous and unusual weapons” outside its scope are (1)

25

Id.; see also id. at 179 (“In a militia, the character of the

labourer, artificer, or tradesman, predominates over that of the

soldier: in a standing army, that of the soldier predominates

over every other character; and in this distinction seems to

consist the essential difference between those two different

species of military force.”) (quoting Adam Smith, Wealth of

Nations, Book V. Ch. 1).

26

Heller, 554 U.S. at 625 (quoting State v. Kessler, 614 P.2d

94, 98 (Or. 1980)).

27

Id. at 626.

28

Id. at 623 (discussing Miller, 307 U.S. 174).

29

Id. at 582, 627.

5

weapons that are “not typically possessed by law-abiding

citizens for lawful purposes,” such as short-barreled

shotguns;30 and (2) weapons that are “most useful in military

service,” such as “M-16 rifles and the like.”31 Heller’s

discussion of the latter is worth revisiting in full:

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

30

Id. at 625. In Miller, the Supreme Court held that the Second

Amendment does not protect the right to keep and bear short-

barreled shotguns “[i]n the absence of any evidence tending to

show that the possession or use of a [short-barreled shotgun] at

this time has some reasonable relationship to the preservation

or efficiency of a well-regulated militia[.]” Miller, 307 U.S. at

178. See also Heller, 554 U.S. at 622-23 (explaining that

Miller’s “basis for saying that the Second Amendment did not

apply was not that the defendants were ‘bear[ing] arms’ not ‘for

. . . military purposes’ but for ‘nonmilitary use’ . . . Rather, it

was that the type of weapon at issue was not eligible for Second

Amendment protection[.]”) (emphases and alterations in

original) (internal citation omitted).

31

Heller, 554 U.S. at 627.

6

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.32

In other words, the fact that a militia member no longer

brings along his or her own weapon to militia duty, does not

prevent us from recognizing the significance of the words used

in the 18th century to create the Second Amendment.

Two years after Heller, the Court in McDonald v.

Chicago expanded Heller’s scope by confirming that the

Second Amendment applies to the states through incorporation

under the Fourteenth Amendment.33 McDonald said nothing

new about the kinds of Arms protected by the Second

Amendment; as in Heller, the weapons at issue in McDonald

were handguns.34 McDonald reiterated that self-defense is the

“central component” of the Second Amendment right and the

32

Id. at 627-28.

33

McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).

34

Id. at 750.

7

“core lawful purpose” for which the weapons it protects are

used.35

Twelve years after McDonald, the Court made “more

explicit” a two-step analytical approach for evaluating Second

Amendment claims in New York State Rifle & Pistol Ass’n, Inc.

v. Bruen.36 At step one, the court determines whether the

Second Amendment’s “plain text” covers the “conduct” at

issue.37 If it does, the court proceeds to step two to determine

whether the challenged laws are “consistent with the Nation’s

historical tradition of firearm regulation.”38 At step two, the

government must show that that the modern regulation is

35

Id. at 767-68 (quoting Heller, 554 U.S. at 599, 630).

36

597 U.S. 1, 31 (2022).

37

Id. at 17. Although Bruen does not expressly hold that

plaintiffs bear the burden at step one, it necessarily implies that

they do. In disposing of the means-ends scrutiny that courts

previously applied to Second Amendment claims, the Court

explained that its new two-step analysis “accords with how we

protect other constitutional rights,” such as those guaranteed

by the First Amendment. Bruen, 597 U.S. at 24. If a plaintiff

alleging a violation of their First Amendment rights must

“bear[] certain burdens,” only after which “the focus then shifts

to the defendant to show that its actions were nonetheless

justified[,]” then the same must be true here. Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 524 (2022); see also Bevis

v. City of Naperville, Illinois, 85 F.4th 1175, 1194 (7th Cir.

2023) (“In order to show a likelihood of success on the merits,

the plaintiffs in each of the cases before us have the burden of

showing that the weapons addressed in the pertinent legislation

are Arms”).).

38

Bruen, 597 U.S. at 24.

8

“relevantly similar” to historical regulation in “how and why

the regulations burden a law-abiding citizen’s right to armed

self-defense.”39

II. Discussion

A. Plaintiffs failed to establish a

likelihood of success on the merits.

The laws challenged here restrict having, making,

buying, selling, and receiving “assault weapons” and “large

capacity magazines.”40 “Assault weapons” include: (1) forty-

four semi-automatic “assault long guns,” including the AR-15,

AK-47, and Uzi; (2) nineteen semi-automatic “assault pistols”;

and (3) “copycat weapons.”41 “Large capacity magazines”

(LCMs), are magazines “capable of accepting, or that can

readily be converted to hold, more than 17 rounds of

ammunition.”42

We must first decide whether these assault weapons and

LCMs are “Arms” that individuals are entitled to “keep and

bear” under the plain text of the Second Amendment. If they

are not properly characterized as “Arms,” then Delaware is free

to regulate them as it chooses. If they are properly

characterized as “Arms,” we proceed to Bruen’s second step

39

Id. at 29.

40

See Del. Code Ann. tit. 11, §§ 1464-69; id. § 1465(4) (assault

weapons); id. § 1468(2) (LCMs).

41

Id. § 1465(2) (assault long guns); Id. § 1465(3) (assault

pistols); Id. § 1465(6) (copycat weapons).

42

Id. § 1468(2).

9

and determine whether the laws are “consistent with the

Nation’s historical tradition of firearm regulation.”43

Three principles, the contours of which are disputed by

the parties, guide our analysis at Bruen step one. First, the

Second Amendment extends to “all instruments that constitute

bearable arms,”44 meaning weapons that “are in common use

for self-defense today.”45 Second, for purposes of assessing

whether a given weapon is in common use for self-defense,

what matters is whether the weapon in question is suitable for,

owned for, and actually used in self-defense. Third, the Second

Amendment does not protect “dangerous and unusual

weapons,” meaning those weapons that are “not typically

possessed by law-abiding citizens for lawful purposes”46 or are

“most useful” as weapons of war.47

i. “Bearable arms” are those that

are commonly used for self-

defense.

The parties disagree about the kinds of “bearable arms”

presumptively protected by the Second Amendment. Plaintiffs

contend that weapons used for any lawful purpose including

self-defense are protected, while Delaware argues that only

weapons that are commonly used for self-defense are

protected. Delaware’s argument proves stronger.

43

597 U.S. at 24.

44

Heller, 554 U.S. at 582.

45

Bruen, 597 U.S. at 47 (internal quotations omitted).

46

Id. at 625.

47

Heller, 554 U.S. at 627.

10

Limiting the scope of “bearable arms” to those that are

used for self-defense comports with the “normal and ordinary”

meaning of “bear arms.”48 Heller made clear that to “bear

arms” means to carry weapons “for the purpose . . . of being

armed and ready for offensive or defensive action in a case of

conflict with another person.” Thus, the phrase “bearable

arms” necessarily refers to weapons that are carried for that

same express purpose.49

To be sure, weapons can be (and are) used for lawful

purposes besides self-defense. Recreational target shooting,

hunting, and pest-control all come to mind.50 But Heller holds,

and its progeny affirms, that self-defense is “the core lawful

purpose” protected by the Second Amendment.51 While these

other uses may be lawful, the Supreme Court has never

recognized them as “core” purposes protected by the Second

Amendment.52 Until it might do so, the “bearable arms”

48

Heller, 554 U.S. at 576.

49

Id. at 584.

50

See Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at

594; Ass’n of New Jersey Rifle and Pistol Clubs, Inc. v. Att’y

Gen. New Jersey (ANJRPC), 910 F.3d 106, 116 (3d Cir. 2018),

abrogated on other grounds by Bruen, 597 U.S. 1 (2022).;

Bevis, 85 F.4th at 1192.

51

Heller, 554 U.S. at 630 (emphasis added); see also Bruen,

597 U.S. at 29 (“As we stated in Heller and repeated in

McDonald, ‘individual self-defense is ‘the central component’

of the Second Amendment right.’”) (emphasis in original)

(quoting McDonald, 561 U.S. at 767)).

52

Heller, 554 U.S. at 630.

11

presumptively protected by the Second Amendment are limited

to weapons used explicitly for self-defense.53

ii. Whether a weapon is “in

common use for self-defense”

hinges on more than its

popularity.

The parties dispute (1) when common use should be

assessed (at Bruen step one or two), (2) what type of common

use matters, and (3) how common use should be measured.

“When” is a question easily answered. Bruen

acknowledged that the handguns at issue were “‘in common

use’ today for self-defense” before conducting its historical

analysis, thereby indicating that “common use” comes into

play at step one.54

“What type” can also be resolved by reference to Bruen.

As the latest in a line of decisions holding that “individual self-

defense is ‘the central component’ of the Second Amendment

right,” Bruen confirms that the only weapons protected by the

right are those that are commonly used for self-defense--not for

any lawful purpose like self-defense.55

“How” is more complicated. The Supreme Court has

yet to address exactly how we should assess whether a weapon

is “in common use today for self-defense.”56 The District

53

Id.

54

See Bruen, 597 U.S. at 32.

55

Id. at 29 (quoting McDonald, 561 U.S. at 767).

56

Id. (internal quotations omitted).

12

Court did so only by considering whether the assault weapons

and LCMs were popular.57 But the plain meaning of “common

use,” the frameworks of other constitutional rights, and the

problems that might flow from the District Court’s approach

all point toward additional metrics: a weapon’s objective

suitability for self-defense and whether it is commonly used in

self-defense.

Consider the plain meaning of “common use.”

“Common” is defined as “occurring, found, or done often; in

general use; usual, prevalent.”58 “Use” is defined as “a long-

continued possession and employment of a thing for the

purpose for which it is adapted[.]”59 Read together, a weapon

is in common use for self-defense if evidence shows it is (1)

well adapted for self-defense and (2) widely possessed and

employed for self-defense. However, evidence that a weapon

is widely possessed or that a widely possessed weapon is

occasionally used in self-defense is not, alone, enough to show

it is in common use for self-defense—not if we want to heed

the phrase’s plain meaning.

57

See Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at

595.

58

Common, Adj., Sense II.9.a, Oxford English Dictionary (Feb.

2024) (online ed.), https://doi.org/10.1093/OED/1740514823.

59

Use, Black's Law Dictionary (11th ed. 2019). The complete

definition reads: “The application or employment of

something; esp., a long-continued possession and employment

of a thing for the purpose for which it is adapted, as

distinguished from a possession and employment that is merely

temporary or occasional.” Id.; see also Voisine v. United States,

579 U.S. 686, 692 (2016) (“Dictionaries consistently define the

noun ‘use’ to mean ‘the act of employing’ something.”).

13

Beyond plain meaning, Bruen says that its two-step

standard “accords with how we protect other constitutional

rights.”60 We frequently define the boundaries of these rights

with objective standards.61 There is no reason not to do the

same in the Second Amendment context.62 By taking into

account whether a weapon is objectively suitable for self-

defense, we ensure that the Second Amendment right to self-

defense is not “subject to an entirely different body of rules

than the other Bill of Rights guarantees.”63

60

Bruen, 597 U.S. at 24.

61

Id. For example, in the Fourth Amendment context, we

assess the constitutionality of an arrest by determining whether

“the circumstances, viewed objectively, justify [the

challenged] action.” Ashcroft v. al-Kidd, 563 U.S. 731, 736

(2011) (alterations in original). In determining whether an

individual was subject to an unreasonable search, we consider

whether the person being searched had an objectively

reasonable expectation of privacy and the objective effect of

the officer’s actions. Bond v. United States, 529 U.S 334, 338,

338 n.2 (2000). In the Sixth Amendment context, a criminal

defendant claiming ineffective assistance of counsel “must

show that counsel’s representation fell below an objective

standard of reasonableness.” Strickland v. Washington, 466

US. 668, 688 (1984).

62

Indeed, even Bruen suggests that an objective standard is

relevant for judging whether a Second Amendment violation

has occurred. The Court specifically held that New York’s

proper-cause requirement was unconstitutional “in that it

prevents law-abiding citizens with ordinary self-defense needs

from exercising their right to keep and bear arms.” Bruen, 597

U.S. at 71 (emphasis added).

63

Id. at 70 (quoting McDonald, 561 U.S. at 780).

14

Finally, a “common use” analysis that hinges solely on

a weapon’s popularity produces absurd results. Take, for

example, the AR-15 and the Federal Assault Weapons Ban,

which made civilian possession of AR-15s unlawful.64 When

the Ban first went into effect in 1994, few civilians owned AR-

15s.65 When it expired in 2004, AR-15s “began to occupy a

more significant share of the market.”66 Today, plaintiffs

describe the AR-15 as “America’s most popular semi-

automatic rifle” and “the second-most common type of firearm

sold[.]”67 If we looked to evidence of the AR-15’s popularity

alone, the Ban would have been constitutional before 2004 but

unconstitutional thereafter.68 A law’s constitutionality cannot

be contingent on the results of a popularity contest.69

iii. “Dangerous and unusual

weapons” is a category, not a

test.

Though the Second Amendment presumptively protects

“Arms” that are in common use for self-defense, it does not

64

Pub. L. No. 103-322 § 110102, 108 Stat. 1796.

65

Bevis, 85 F.4th at 1199.

66

Id.

67

Gray Br. 19-20.

68

See Bevis, 85 F. 4th at 1199.

69

See also Nat’l Ass’n for Gun Rts. v. Lamont, 685 F. Supp. 3d

63, 102 (D. Conn. 2023) (“[W]hile constitutional protections

adapt to the constant evolution of societal norms and

technology, no other constitutional right waxes and wanes

based solely on what manufacturers choose to sell and how

Congress chooses to regulate what is sold, and the Second

Amendment should be no exception.”).

15

extend to “dangerous and unusual weapons.”70 The District

Court likened this to a “test,” and concluded that a weapon

must “check both boxes” to qualify as “dangerous and

unusual.”71 But Heller instructs that “dangerous and unusual”

is best understood as a two-part category unto itself. 72 As

discussed above, “dangerous and unusual weapons” are either

(1) weapons that are “not typically possessed by law-abiding

citizens for lawful purposes, such as short-barreled shotguns,”

or (2) weapons that “are most useful in military service,” such

as “M-16 rifles and the like.”73 For the latter, it is worth noting

that “most” is a superlative descriptor.74 Therefore, even

though a weapon might be useful in civilian and military

contexts, a weapon that is “most” suited for military use falls

outside the scope of “Arms” protected by the Second

Amendment.75

70

Heller, 554 U.S. at 627.

71

Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at 595.

72

We are bound by Heller and its progeny, not Justice Alito’s

concurrence in Caetano v. Massachusetts, 577 U.S. 411, 417

(per curiam) (Alito, J., concurring) (“[T]his is a conjunctive

test: A weapon may not be banned unless it is both dangerous

and unusual.”). Moreover, and as discussed in greater detail

below, affording “great weight” to the Caetano concurrence is

unwarranted. Delaware State Sportsmen’s Ass’n, 664 F. Supp.

3d at 595.

73

Heller, 554 U.S. at 625, 627.

74

Hanson v. D.C., 671 F. Supp. 3d 1, 12 (D.D.C. 2023) (citing

Heller, 554 U.S. at 627).

75

Even Delaware acknowledges that each of the assault

weapons it seeks to regulate may “potential[l]y function as a

sports or recreational firearm”; however, that potential is

16

While the District Court concluded that the assault

weapons and LCMs at issue are typically possessed by law-

abiding citizens for lawful purposes, it did not consider

whether any of the assault weapons and LCMs at issue “are

most useful in military service” and therefore “may be banned”

without infringing the Second Amendment right (as Heller

tells us).76 That was error.

iv. None of the assault weapons and

LCMs are “Arms” protected by

the Second Amendment.

The District Court concluded that assault long guns and

LCMs are fairly characterized as “Arms,” but assault pistols

and copycat weapons are not.77 However, its analysis rested

on an incomplete assessment of “common use” and a

misunderstanding of what makes a weapon “dangerous and

unusual.” Analyzed correctly, the record shows that none of

the assault weapons and LCMs are “Arms” protected by the

Second Amendment.

Assault long guns: The assault long guns set forth at §

1465(2) may be commonly owned, but they are nonetheless

best categorized as weapons that are most useful in military

service and are therefore unprotected by the Second

“substantially outweighed by the danger that it can be used to

kill and injure human beings.” Del. Code Ann. tit. 11, § 1464.

76

Heller, 554 U.S. at 627.

77

See Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at

595-96 (addressing assault long guns); Id. at 596-97

(addressing LCMs); Id. at 593 (addressing assault pistols and

copycat weapons).

17

Amendment.78 Generally speaking, assault long guns derive

from weapons of war and retain nearly all of the features of

their military counterparts.79 These “famed” military

features—designed to increase lethality and allow shooters to

inflict severe damage over great distances—serve as civilian

selling points.80 But while these features may be useful in

78

Del. Code Ann. tit. 11, § 1465(2).

79

The only meaningful distinction between the assault long

guns sold to civilians and the assault long guns reserved for

military use appears to be firing capability: civilian versions

are only capable of semi-automatic operation while military

versions can operate both ways. However, the ease with which

semi-automatic rifles can be modified to fire at rates

approaching that of their fully automatic counterparts

reinforces the concept that the design of an assault long gun is

a design for a weapon of war. Cf. Delaware State Sportsmen’s

Ass’n, 664 F. Supp. 3d at 600 (citing evidence of “numerous

inexpensive products, available for purchase in most states,

that allow AR-style rifles to fire at rates comparable to fully

automatic weapons.”); Garland v. Cargill, 602 U.S. 406, 410-

12 (2024) (describing the ease with which a semi-automatic

rifle can be converted to fire at a rate approaching that of a

machine gun).

80

See, e.g., SA 680 (advertising AR-15s as follows: “Out of

the jungles of Vietnam comes a powerful, battle-proven rifle

ready for sale to civilians for hunting and target use. It’s the

Army’s rakish AR-15, famed for its success in guerilla fighting.

The sport version is an exact duplicate of the military weapon

. . .”); SA 455-56 ¶¶ 57-58 (“Colt sought to capitalize on the

military acceptance of the AR-15 / M16 and [] proposed

production of these rifles for sale to the civilian market . . . The

sole difference between the military and civilian versions was

18

military contexts, they make assault long guns ill-suited for

self-defense.81 Unlike wartime offensives, home and self-

defense scenarios rarely, if ever, involve lengthy shootouts at

long ranges or extensive exchanges of gunfire. Moreover,

projectiles traveling at velocities as high as a 5.66 mm or .223

caliber cartridge can easily penetrate most home construction

materials, posing a serious risk of harm to bystanders in

adjacent rooms or even outside the home entirely.82

The lethality of an assault long gun is best illustrated by

way of comparison. Take the damage inflicted by a handgun

(Heller’s “quintessential self-defense weapon”) and the

damage inflicted by an assault rifle.83 A common caliber

handgun cartridge (9 mm or .38) travels at a muzzle velocity

removal of fully automatic capability . . . All of the other

features on these rifles that enhanced their capability as combat

military firearms remained.”).

81

These features also make assault weapons “a counterintuitive

choice” for other lawful purposes like hunting and target

shooting. SA 474-75 ¶ 88.

82

SA 472-73 ¶¶ 83-84 (discussing results of penetration tests

wherein nine different types of .223 / 5.56 mm ammunition

were fired through simulated wall sections made of gypsum

board, sheet rock, and wooden 2x4 studs, and noting that “all

nine (including “frangible” rounds designed to disintegrate

when hitting a hard surface) easily penetrated the wall section

as well as water jugs placed three feet behind.”). In addition to

materials commonly used in home construction, .223 caliber

ammunition can penetrate 3/8” hardened steel from 350 yards

away, while 5.56 mm can penetrate up to 3mm of non-hardened

steel.

83

Heller, 554 U.S. at 629.

19

of roughly 1,600 feet per second. When it hits tissue, it strikes

directly, producing “a small temporary cavity” in tissue that

“plays little or no role in the extent of wounding.”84 By

contrast, a 5.66 mm or .223 caliber cartridge—the kind

typically used in assault weapons—travels at double the

speed.85 And unlike a handgun cartridge, it turns sideways

when it hits tissue, creating a cavity over ten times larger than

the cartridge itself and resulting in “catastrophic” wounding.86

Doctors who have treated people shot by assault rifles have

witnessed “multiple organs shattered, bones exploded, soft

tissue absolutely destroyed, and exit wounds a foot wide.”87

The record is clear: the assault long guns at issue are

most useful as weapons of war. As such, they fall outside the

scope of “Arms” presumptively protected by the Second

Amendment.

LCMs: The District Court explained it was “bound” by

our pre-Bruen decision in ANJRPC in two ways.88 First,

because ANJRPC “broadly held that ‘magazines are arms,’”

the District Court assumed the LCMs at issue here must also

be “arms.”89 Second, because plaintiffs in both cases proffered

similar “common use” evidence, the District Court determined

that these LCMs must also be “in common use for self-defense

84

Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at 600.

85

SA 472 ¶ 83.

86

Id.

87

Id.

88

Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at 596

(discussing ANJRPC, 910 F.3d at 106).

89

Id. (quoting ANJRPC, 910 F.3d at 106).

20

today.”90 As a result, the District Court held that the LCMs

Delaware seeks to regulate are “Arms” presumptively

protected by the Second Amendment. While the District

Court’s reliance on ANJRPC was understandable, it read our

decision too broadly.

In ANJRPC, we held that “magazines are ‘arms’”

insofar as they “feed ammunition into certain guns, and

ammunition is necessary for such a gun to function as

intended[.]”91 But ANJRPC does not stand for the proposition

that all magazines are categorically protected Arms under the

Second Amendment. Indeed, we expressly assumed without

deciding that the LCMs at issue (those with 10 or more rounds

of ammunition) were “commonly owned and typically

possessed by law-abiding citizens for lawful purposes.”92

Other courts took a similar approach pre-Bruen.93 But we now

have the benefit of Bruen, which confirms that only “weapons

‘in common use’ today for self-defense,” as opposed to

generally “lawful purposes,” are protected by the Second

Amendment.94 As a result, the evidence that sufficed for the

sake of argument in ANJRPC—evidence showing magazines

are “typically possessed by law-abiding citizens for hunting,

pest-control, and occasionally self-defense”—does not suffice

90

Id. at 596-97.

91

ANJRPC, 910 F.3d at 116.

92

Id. (internal citations omitted).

93

See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. Cuomo,

804 F.3d 242, 256-57 (2d Cir. 2015); Worman v. Healey, 922

F.3d 26, 30 n.12 (1st Cir. 2019).

94

Bruen, 597 U.S. at 48.

21

here. 95 Not all guns are “Arms” protected under the Second

Amendment, nor are all magazines.

Plaintiffs show that LCMs are widely owned but

otherwise offer no evidence that the LCMs at issue here—

magazines that can hold seventeen or more rounds—are

suitable for or actually used in self-defense. By contrast,

Delaware offered evidence showing that LCMs are most useful

as weapons of war. Like assault long guns, LCMs were

designed for military use to allow a soldier to “fire an increased

quantity of cartridges without reloading.”96 They are marketed

to civilians for the same express purpose (“Twice the violence

of action. Half the reloads. Win-win”), but that purpose is

plainly most useful in combat.97 The record shows it is

“extremely rare” for a person to fire even ten rounds, let alone

more than seventeen, in self-defense.98 Quite the opposite. A

study of “armed citizen” stories collected by the National Rifle

Association from 2011 to 2017 found that the average number

of shots fired in self-defense was 2.2.99

Based on the record presented, the LCMs Delaware

seeks to regulate are most useful as military weapons and thus

are not “Arms” protected by the Second Amendment.

Assault pistols: Plaintiffs offered no evidence that the

nineteen types of assault pistols listed at § 1465(3) are best

adapted for self-defense, commonly owned for self-defense, or

95

ANJRPC, 910 F.3d at 116 (emphasis added).

96

SA 454-55 ¶ 55.

97

SA 96 (advertisement for 60-cartridge magazine) (cleaned

up).

98

SA 331 ¶ 9.

99

Id.

22

commonly used for self-defense. Plaintiffs’ sole argument is

that that the Supreme Court has already “clarifi[ed]” that

assault pistols listed “are in common use,” citing Justice Alito’s

concurrence in Caetano v. Massachusetts.100 Not so. Although

Justice Alito observed that “revolvers and semiautomatic

pistols” are “the weapons most commonly used today for self-

defense,” the Court’s per curiam opinion pertained only to stun

guns and simply affirmed Heller’s holding that a weapon need

not have existed at the time of the founding to receive Second

Amendment protection.101 Moreover, Justice Alito’s broad

observation about “revolvers and semiautomatic pistols” tells

us nothing about the nineteen specific assault pistols Delaware

seeks to regulate.102

Dictum from Justice Alito’s Caetano’s concurrence

notwithstanding, and based on the record presented, the assault

pistols at issue are not “Arms” presumptively protected by the

Second Amendment.

Copycat weapons: Plaintiffs claim that the assault long

guns and assault pistols listed at §§ 1465(2) and (3) are no

different from the copycat weapons listed at § 1465(6).

According to plaintiffs, because assault long guns and assault

pistols are widely owned and therefore protected under the

100

Delaware State Br. 12 (citing Caetano, 577 U.S. at 416-17

(Alito, J., concurring), Heller v. D.C. (“Heller II”), 670 F.3d

1244, 1269 (D.C. Cir. 2011) (Kavanaugh, J., dissenting), and

New York State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d

242, 255 (2d Cir. 2015)); Del. Code Ann. tit. 11, § 1465(3).

101

Caetano, 577 U.S. at 416-17 (Alito, J., concurring); see id.

at 411-12.

102

Id. at 416-17 (Alito, J., concurring).

23

Second Amendment, the same is true for copycat weapons.

However, as discussed above, plaintiffs failed to demonstrate

that assault long guns and assault pistols are in common use for

self-defense. By plaintiffs’ own logic, our analysis of copycat

weapons ends there. Moreover, the only evidence plaintiffs

submitted was a survey regarding the ownership and use of the

“AR-15 or similarly styled rifles.”103 These statistics, by

themselves, do not establish that copycat weapons are

commonly used for self-defense. Accordingly, copycat

weapons are not “Arms” protected by the Second Amendment.

Because I would hold that none of the assault weapons

or LCMs Delaware seeks to regulate are “Arms” at Bruen step

one, it is unnecessary to consider whether Delaware met its

burden at Bruen step two. But even assuming that the assault

weapons and LCMs at issue fall within the ambit of Arms

protected by the Second Amendment, the District Court’s

careful analysis leaves no doubt that Delaware’s laws are

consistent with the nation’s historical traditional of firearm

regulation.104 Either way, plaintiffs failed to demonstrate a

likelihood of success on the merits of their Second Amendment

claim, and the District Court correctly denied injunctive relief.

103

William English, 2021 Nat’l Firearms Survey: Updated

Analysis Including Types of Firearms Owned 33 (May 13,

2022) (Georgetown McDonough School of Business Research

Paper No. 4109494), https://bit.ly/3yPfoHw.

104

See Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at

597-603. Based on a record “almost entirely supplied by”

Delaware, the District Court decided that Delaware met its

Bruen step two burden. Id. at 597 n.13. Rightly so.

24

B. The balance of the equities and the

public interest also weigh in favor of

denying the preliminary injunction.

Finally, I turn briefly to the balance of the equities and

the public interest.105 I agree with the Majority that neither

factor weighs in plaintiffs’ favor. However, I believe the

Majority construes the state’s interest in this case too narrowly.

While the Majority rightly identifies Delaware’s interest in the

execution of its democratically enacted laws,106 the state has an

equally important interest in the safety of its citizens.

In recent years, the United States has experienced an

exponential increase in the frequency of mass shootings.

Scholars estimate that only twenty-five mass shootings

occurred between 1900 and 1965.107 By contrast, the United

105

See Winter v. NRDC, 555 U.S. 7, 26, 32 (2008); Reilly, 858

F.3d at 177-79. There is no tension between our consideration

of the public interest and Bruen’s disavowal of means-end

scrutiny. 597 U.S. at 19. The former is a threshold inquiry that

cabins our use of preliminary injunctions, while the latter

concerns the merits of the constitutional claim. These inquiries

are also substantively different: means-end scrutiny concerns

the tailoring of a law to advance a government objective, while

the final two preliminary injunction factors consider the

consequences for the parties and the public. Cf. Bevis, 85 F.4th

at 1203-04.

106

Maj. Op. 24-25.

107

See Bonnie Berkowitz & Chris Alcantara, Mass Shooting

Statistics in the United States, Wash. Post (May 9, 2021),

https://tinyurl.com/537ww9z4. As used here, a “mass

shooting” is a shooting in which four or more people, not

including the perpetrator, are injured or killed, where victims

25

States now endures more than 600 mass shootings per year—

nearly two per day. Assault weapons and LCMs have been the

weapons of choice in many of these mass shootings, and

unsurprisingly, mass shootings involving assault weapons and

LCMs result in far more fatalities and injuries than those that

do not.108 The Delaware legislature recognized that assault

weapons and LCMs pose a grave “threat to the health, safety,

and security” of Delawareans and acted accordingly.109

Confronted with unprecedented violence, Delaware

determined it was in the public interest to address the

proliferation of assault weapons and LCMs—instruments that

were purpose-built to kill as many people as quickly as

possible. It is clear to me that the Second Amendment does not

are selected indiscriminately, and where the shootings are not

attributable to any other underlying criminal activity or

circumstance.

108

For example, Delaware submitted a study of 179 mass

shootings that have occurred between 1982 and October 2022.

Of the mass shootings where the weapon type (153) and

magazine capacity (115) were known, 24% involved assault

weapons and 63% involved LCMs capable of holding ten or

more rounds. Mass shootings involving assault weapons had

an average of 36 fatalities or injuries per shooting, while those

that did not involve assault weapons had an average number of

10. Similarly, mass shootings involving LCMs had an average

of 25 fatalities or injuries per shooting, whereas those that did

not involve LCMs had an average of 9. Shooters fired more

than 17 rounds in 92% of mass shootings known to have been

committed with an assault weapon and an average of 116 shots

in mass shootings involving LCMs.

109

Del. Code Ann. tit. 11, § 1464.

26

compel Delaware to turn a blind eye to the safety of its citizens.

Moreover, Delaware’s interest in public safety is relevant to the

propriety of denying injunctive relief.

*****

For the above reasons, I agree that we should affirm the

District Court’s order denying injunctive relief, but I urge that

these other relevant factors be kept in mind by future courts in

future cases.

27