An opinion was released in case 23-7061, Andrew Hanson v. DC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2024 Decided October 29, 2024

No. 23-7061

ANDREW HANSON, ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA AND PAMELA A. SMITH,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cv-02256)

Edward M. Wenger argued the cause for appellants. With

him on the briefs were George L. Lyon, Jr. and Mateo Forero-

Norena.

Ashwin P. Phatak, Principal Deputy Solicitor General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellees. With him on the brief were

Brian L. Schwalb, Attorney General, Caroline S. Van Zile,

Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General,

and Sonya L. Lebsack, Assistant Attorney General.

2

Mary B. McCord was on the brief for amicus curiae United

States Conference of Mayors in support of appellees.

Matthew J. Platkin, Attorney General, Office of the

Attorney General for the State of New Jersey, Jeremy M.

Feigenbaum, Solicitor General, Andrea Joy Campbell,

Attorney General, Office of the Attorney General for the

Commonwealth of Massachusetts, Robert Toone, Chief,

Government Bureau, Rob Bonta, Attorney General, Office of

the Attorney General for the State of California, Philip J.

Weiser, Attorney General, Office of the Attorney General for

the State of Colorado, William Tong, Attorney General, Office

of the Attorney General for the State of Connecticut, Kathleen

Jennings, Attorney General, Office of the Attorney General for

the State of Delaware, Anne E. Lopez, Attorney General, Office

of the Attorney General for the State of Hawai‘i, Kwame Raoul,

Attorney General, Office of the Attorney General for the State

of Illinois, Aaron M. Frey, Attorney General, Office of the

Attorney General for the State of Maine, Anthony G. Brown,

Attorney General, Office of the Attorney General for the State

of Maryland, Dana Nessel, Attorney General, Office of the

Attorney General for the State of Michigan, Keith Ellison,

Attorney General, Office of the Attorney General for the State

of Minnesota, Aaron D. Ford, Attorney General, Office of the

Attorney General for the State of Nevada, Letitia James,

Attorney General, Office of the Attorney General for the State

of New York, Ellen F. Rosenblum, Attorney General, Office of

the Attorney General for the State of Oregon, Michelle A.

Henry, Attorney General, Office of the Attorney General for

the Commonwealth of Pennsylvania, Peter F. Neronha,

Attorney General, Office of the Attorney General for the State

of Rhode Island, Charity R. Clark, Attorney General, Office of

the Attorney General for the State of Vermont, and Robert W.

Ferguson, Attorney General, Office of the Attorney General

for the State of Washington, were on the brief for amici curiae

3

Massachusetts, et al. in support of appellees. Turner H. Smith,

Assistant Attorney General, Office of the Attorney General for

the Commonwealth of Massachusetts, entered an appearance.

Priyanka Gupta Sen was on the brief for amicus curiae

Everytown for Gun Safety in support of appellees.

Douglas N. Letter, Timothy C. Hester, and Ciara Wren

Malone were on the brief for amici curiae Brady Center to

Prevent Gun Violence, et al. in support of appellees.

Before: MILLETT and WALKER, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Dissenting opinion filed by Circuit Judge WALKER.

I. Factual and Procedural History ....................................... 5

II. Standard of Review ......................................................... 7

III. Likelihood of Success on the Merits ............................... 7

A. Plain Text of the Second Amendment ........................ 8

B. Historical Tradition of Firearm Regulation .............. 12

1. Historical Analogues to the Magazine Cap .......... 14

a. Storage of Gunpowder ...................................... 15

b. Time, Place, and Manner Restrictions .............. 16

c. Prohibition-Era Regulations.............................. 17

d. Restrictions on Weapons Particularly Capable of

Unprecedented Lethality .................................. 18

2. The Nuanced Approach to History Under Bruen . 25

a. Unprecedented Societal Concern ...................... 26

b. Dramatic Technological Change....................... 28

IV. Other Preliminary Injunction Factors ........................... 30

4

A. Irreparable Harm ....................................................... 32

B. Balance of the Equities ............................................. 36

V. Summary and Conclusion ............................................. 40

Appendix: Historical Firearms .............................................. 41

PER CURIAM: After the Supreme Court’s landmark ruling

in District of Columbia v. Heller, 554 U.S. 570 (2008), the

District of Columbia revised its firearms laws to cap the

capacity of firearm magazines at “10 rounds of ammunition.”

D.C. Code § 7-2506.01(b). Over a decade ago, applying the

then-prevailing intermediate scrutiny standard of review, we

held the magazine cap did not violate the right to bear arms

secured by the Second Amendment to the Constitution of the

United States, which 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.” See

Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1264

(D.C. Cir. 2011). Since then, the Supreme Court has rejected

“means-end scrutiny in the Second Amendment context,” in

favor of asking whether a challenged restriction is consistent

with “the Nation’s historical tradition of firearm regulation.”

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 19, 24

(2022).

Seeing a new opening, the Appellants have charged once

more unto the breach. They argue the District’s magazine cap

is unconstitutional under the test set forth in Bruen and moved

the district court for a preliminary injunction to prohibit en-

forcement of the magazine cap. The district court denied the

motion. Because the Appellants have failed to make the “clear

showing” required for a preliminary injunction on this early

and undeveloped record, Winter v. Nat. Res. Def. Council, 555

U.S. 7, 22 (2008), we affirm the denial of their motion.

5

I. Factual and Procedural History

After its “prohibition on the possession of usable handguns

in the home” was held to violate the Second Amendment in

Heller, 554 U.S. at 573, 635, the District of Columbia enacted

the Firearms Registration Amendment Act of 2008, D.C. Law

17-372. The Act makes it a felony to possess a magazine

capable of holding more than 10 rounds. Appellants wish to

possess magazines containing up to 17 bullets, which for

efficiency’s sake we will refer to as an extra-large capacity

magazine (ELCM) to distinguish it from a permitted large-

capacity ten-round magazine. 1

Each of the appellants, Andrew Hanson, Tyler Yzaguirre,

Nathan Chaney, and Eric Klun, keeps one or more firearm

magazines capable of holding more than ten rounds of ammu-

nition outside the District of Columbia and each alleges he

would use his magazines in the District for lawful purposes,

including self-defense, were the magazine cap imposed by the

Act not in effect. One appellant, Tyler Yzaguirre, attempted to

1

In full, D.C. Code § 7-2506.01(b)-(c), provides:

No person in the District shall possess, sell, or transfer any

large capacity ammunition feeding device regardless of

whether the device is attached to a firearm.

For the purposes of this subsection, the term ‘large capacity

ammunition feeding device’ means a magazine, belt, drum,

feed strip, or similar device that has a capacity of, or that can

be readily restored or converted to accept, more than 10

rounds of ammunition. The term ‘large capacity

ammunition feeding device’ shall not include an attached

tubular device designed to accept, and capable of operating

only with, .22 caliber rimfire ammunition.

6

register a firearm with a 12-round magazine in the District, but

the Metropolitan Police Department denied his application be-

cause of the magazine cap.

On August 1, 2022 — a little more than a month after

Bruen had been decided — the four appellants (hereinafter

Hanson) sued the District and the Chief of the D.C.

Metropolitan Police Department, seeking a declaratory judg-

ment that the magazine cap violates the Second Amendment.

Hanson also moved for preliminary and permanent injunctions

preventing the District and the MPD from enforcing the maga-

zine cap. The district court denied Hanson’s motion for a pre-

liminary injunction. Hanson v. District of Columbia, 671 F.

Supp. 3d 1, 3 (D.D.C. 2023).

Because Bruen had “rejected how the Courts of Appeals

interpreted and applied Heller,” the district court undertook a

“renewed analysis under the framework Bruen provides.” Id.

at 5. As applied to Hanson’s suit, the court distilled the Bruen

test into two questions: First, “whether the Second

Amendment covers [ELCM] possession”; and second, if so,

“whether the District’s [magazine cap] is relevantly similar to

an historical analogue” in the regulation of firearms. Id. at 8.

The court then subdivided the first question into two further

questions: “Whether ELCMs are ‘arms’ within the meaning of

the Second Amendment,” and “whether ELCMs are typically

possessed by law-abiding citizens for lawful purposes.” Id. at

8–9 (cleaned up).

The district court held ELCMs are “arms” within the

meaning of the Second Amendment and possession of an

ELCM is not within the scope of the Second Amendment right.

In the alternative, the court held the District’s magazine cap

would be “constitutional for the independent reason that the

District has shown that it is consistent with this country’s his-

7

torical tradition of firearm regulation.” Id. at 16. The court

reasoned the District’s justification for the magazine cap —

“mitigating the carnage of mass shootings in this country” —

matched that for Prohibition-era “laws restricting possession of

high-capacity weapons” because both aimed to reduce

violence, and each had a similarly modest burden on the

Second Amendment right to bear arms. Id. at 22 (cleaned up).

Accordingly, the court concluded Hanson had not shown a

likelihood of success on the merits and the district court denied

his motion for a preliminary injunction. Hanson timely

appealed. We now affirm the order of the district court.

II. Standard of Review

A preliminary injunction is “an extraordinary remedy that

may only be awarded upon a clear showing that the plaintiff is

entitled to such relief.” Winter, 555 U.S. at 22. To get a

preliminary injunction the movant must show: (1) “he is likely

to succeed on the merits,” (2) “he is likely to suffer irreparable

harm in the absence of preliminary relief,” (3) “the balance of

equities tips in his favor,” and (4) issuing “an injunction is in

the public interest.” Id. at 20. We review the district court’s

decision whether “to grant the Plaintiffs’ request for a

preliminary injunction for abuse of discretion, its legal conclu-

sions de novo, and its findings of fact for clear error.” Huisha-

Huisha v. Mayorkas, 27 F.4th 718, 726 (D.C. Cir. 2022).

III. Likelihood of Success on the Merits

To assess the merits of Hanson’s request for a preliminary

injunction, 2 we must determine whether the District’s maga-

2

Because the appellants conceded at oral argument that they had not

made the requisite showing for a facial challenge to the District’s

8

zine cap allowing ten but not seventeen rounds likely violates

Hanson’s Second Amendment rights. Bruen established a two-

step test for making that determination. First, we consider

whether “the Second Amendment’s plain text covers”

possession of an ELCM. Bruen, 597 U.S. at 17. If it does, then

we must determine whether the magazine cap is “consistent

with this Nation's historical tradition of firearm regulation” and

therefore constitutional. Id. The plaintiff bears the burden of

proof at the first step, whereas the Government bears the

burden of proof at the second step. See id. at 24; see also

Bianchi v. Brown, No. 21-1255, 111 F.4th 438, 445–46 (4th

Cir. 2024).

A. Plain Text of the Second Amendment

Under governing precedent, Bruen step one encompasses

two more precise questions: Do ELCMs “constitute bearable

arms,” Heller, 554 U.S. at 582, and, if so, are ELCMs “in ‘com-

mon use’” for a lawful purpose, such as self-defense? 3 Bruen,

magazine cap, see Oral Arg. Tr. at 9–14, we address their challenge

only as-applied and only to the type of weapons equipped with an

ELCM that appellants actually own and want to register in the

District, namely, handgun magazines holding between 12 and 17

rounds. See id. at 11:20–12:22 (counsel for Hanson explaining that

the largest magazine that Hanson “possess[es]” and “want[s] to carry

in the District” holds 17 bullets).

3

“There is no consensus on whether the common-use issue belongs

at Bruen step one or Bruen step two.” Bevis v. City of Naperville,

Ill., 85 F.4th 1175, 1198 (7th Cir. 2023) (assuming common use is

part of step two); see Teter v. Lopez, 76 F.4th 938, 949–50 (9th Cir.

2023) (resolving common use at step two), reh’g en banc granted,

opinion vacated, 93 F.4th 1150 (9th Cir. 2024); United States v.

Rahimi, 61 F.4th 443, 454 (5th Cir. 2023) (resolving common use at

9

597 U.S. at 47 (quoting Heller, 554 U.S. at 627). On the current

record, we think the answer to both questions is likely, as

Hanson maintains, to be in the affirmative.

As to the first question, Hanson is likely to succeed in

showing that ELCMs are “Arms” within the meaning of the

Second Amendment. “Constitutional rights . . . implicitly pro-

tect those closely related acts necessary to their exercise.” Luis

v. United States, 578 U.S. 5, 26 (2016) (Thomas, J., concur-

ing). A magazine is necessary to make meaningful an

individual’s right to carry a handgun for self-defense. To hold

otherwise would allow the government to sidestep the Second

Amendment with a regulation prohibiting possession at the

component level, “such as a firing pin.” Kolbe v. Hogan, 813

F.3d 160, 175 (4th Cir. 2016), rev’d en banc, 849 F.3d 114

(2017). We therefore agree with Hanson and the district court

that ELCMs very likely are “Arms” within the meaning of the

plain text of the Second Amendment.

Next, Hanson is likely to succeed in showing that ELCMs

are “in common use” for self-defense, see Heller, 554 U.S. at

627, a deceptively simple question. To start, it demands we

answer the antecedent question: What is the relevant

step one), rev’d, 602 U.S. ---, 144 S. Ct. 1889 (2024). We assume,

without deciding, this issue falls under Bruen step one because the

Bruen Court determined that handguns are in common use before

conducting its historical analysis. See 597 U.S. at 32 (“Nor does any

party dispute that handguns are weapons in common use today for

self-defense. We therefore turn to whether the plain text of the

Second Amendment protects [the petitioners’] proposed course of

conduct — carrying handguns publicly for self-defense.” (cleaned

up)); see also Heller II, 670 F.3d at 1296 n.20 (Kavanaugh, J.,

dissenting) (“In order to apply Heller’s test to this prohibition, we

must know whether magazines with more than 10 rounds have

traditionally been banned and are not in common use”).

10

geographic area, the District of Columbia, the District-

Maryland-Virginia Region, or the entire United States? We

think the relevant area is the United States because the source

of the right is the Constitution of the United States. It would

be anomalous for the protection offered by the Second

Amendment to vary from one state or place to another based

upon the local popularity of a particular firearm.

What, then, does “common use” mean? We agree with the

District that the answer is not to be found solely by looking to

the number of a certain weapon in private hands. Accord

Bianchi, 111 F.4th at 460 (“the Court’s choice of the phrase

common use instead of common possession suggests that only

instances of ‘active employment’ of the weapon should

count”). After all, there are more than 700,000 machine guns

registered with the federal government, Bureau of Alcohol,

Tobacco, Firearms, and Explosives, Firearms Commerce in the

United States: Annual Statistical Update 2021, at 16 (2021),

and only “approximately 200,000” stun guns owned by

civilians. Caetano v. Massachusetts, 577 U.S. 411, 420 (2016)

(Alito, J., concurring in the judgment) (cleaned up). Yet

possession of a stun gun is protected by the Second

Amendment, id. at 412, whereas possession of a machine gun

has generally been banned, see 18 U.S.C. § 922(o).

The district court erred, however, in reasoning (as the

District now argues) that ELCMs are outside the scope of the

Second Amendment because they are most useful in military

service. Heller contrasted weapons “in common use at the

time” of the Founding with “dangerous and unusual weapons,”

which are “most useful in military service.” 554 U.S. at 627

(cleaned up). The latter type of weapon “may be banned” not

because of its military use but because of the “historical tradi-

tion of prohibiting the carrying of dangerous and unusual

weapons.” Id.

11

The Supreme Court in Heller did not hold, however, that

Second Amendment protection does not extend to weapons that

are “most useful” in the military context. Rather, the Court

acknowledged that the Second Amendment protects those

weapons that are “in common use at the time,” but not “dan-

gerous and unusual weapons.” That means that some “weap-

ons that are most useful in military service” do not receive

Second Amendment protection. Heller, 554 U.S. at 627. The

Court conceded this differential treatment may mean that

“modern developments have limited the degree of fit between

the [Second Amendment’s] prefatory clause and the protected

right,” but was untroubled by that outcome, reasoning that

diminished fit could not “change [its] interpretation of the

right.” Id. at 627–628. In other words, the Court was not

saying “there is no Second Amendment protection for weapons

that are ‘most useful in military service.’” Br. of Appellee 23.

It was explaining that some “sophisticated” and “highly

unusual” military weapons, Heller, 554 U.S. at 627, may not

receive protection notwithstanding the Second Amendment

predicate regarding the necessity of a “well-regulated Militia,”

U.S. Const. amend. II.

The District argues ELCMs are not in common use for

self-defense because they are rarely used to fire more than a

couple rounds in self-defense. Hanson replies that one need

not fire every bullet in an ELCM in order to use it. Because

ELCMs are in sufficiently wide circulation and given the

disputed facts in the record about the role of ELCMs for self-

defense, we will presume for present purposes that ELCMs can

be used for self-defense. Accordingly, because Hanson has

shown it is likely that ELCMs are “arms” and are in common

use for self-defense today, it appears on this record that “the

Second Amendment's plain text covers” and therefore

12

presumptively protects the possession of ELCMs. See Bruen,

597 U.S. at 17.

Hanson would have us stop here, as would our dissenting

colleague, arguing that, under Bruen, to find an arm is in

common use renders any restriction of that arm

unconstitutional. As the District points out, however, Bruen

itself precludes this argument. Although no party there

disputed that “handguns are weapons in common use today for

self-defense,” id. at 32 (cleaned up), the bulk of what follows

in the Court’s opinion is an extended analysis of the

Government’s proposed historical analogues, hardly an obiter

dictum, see id. part III, at 31–70. 4 We therefore conclude that,

if an arm is “in common use for self-defense,” then it falls to

the Government, at the second step of the Bruen analysis, to

show its restriction on the right to keep and bear arms is

“consistent with this Nation's historical tradition of firearm

regulation.” Bruen, 597 U.S. at 17.

B. Historical Tradition of Firearm Regulation

Is the District’s magazine cap “relevantly similar” to a tra-

dition of regulating firearms? Id. at 29 (quoting C. Sunstein,

On Analogical Reasoning, 106 HARV. L. REV. 741, 773

(1993)). Although the Supreme Court has not “provided an

4

Indeed, Bruen itself explains that, even where an individual’s

conduct is “presumptively protec[ed]” because the “Second

Amendment’s plain text covers” it, the government can “justify its

regulation by demonstrating that it is consistent with the Nation’s

historical tradition of firearm regulation.” Id. at 24. Our dissenting

colleague says Bruen’s historical analysis is dicta; it is not, but even

if it were, under this court’s practice, “carefully considered language

of the Supreme Court, even if technically dictum, generally must be

treated as authoritative.” See United States v. Dorcely, 454 F.3d 366,

375 (D.C. Cir. 2006).

13

exhaustive survey of the features that render regulations

relevantly similar under the Second Amendment, . . . Heller

and McDonald point toward at least two metrics: how and why

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

self-defense.” Id. (emphases added) (cleaned up). As the

Court has explained,

analogical reasoning under the Second Amendment is

neither a regulatory straightjacket nor a regulatory blank

check. On the one hand, courts should not uphold every

modern law that remotely resembles an historical

analogue, because doing so risks endorsing outliers that

our ancestors would never have accepted. On the other

hand, analogical reasoning requires only that the

government identify a well-established and representative

historical analogue, not a historical twin. So even if a

modern-day regulation is not a dead ringer for historical

precursors, it still may be analogous enough to pass

constitutional muster.

Bruen, 597 U.S. at 30 (cleaned up); see also Rahimi, 144 S. Ct.

at 1903 (emphasizing the error of requiring a “twin” instead of

an “analogue”).

Even with this guidance from Bruen, there is considerable

uncertainty as to the degree of generality at which a court might

properly find a relevantly similar historical analogue. At the

pinnacle of abstraction, an historical analogue could be repre-

sentative of “an unbroken tradition of regulating weapons to

[protect communities].” Bevis, 85 F.4th at 1200. Conversely,

one could read the history to find “no American tradition of

limiting ammunition capacity.” Duncan v. Bonta, 695 F. Supp.

3d 1206, 1214 (S.D. Cal. 2023). We think these levels of

generality and specificity exemplify, respectively, just the

“regulatory blank check” and the “regulatory straightjacket”

14

against which Bruen warns. 597 U.S. at 30; see id. (at a high

enough level of generality, “everything is similar in infinite

ways to everything else” (cleaned up)). We think the

appropriate level of generalization is one that aligns the

regulation in question with the “how” and “why” of the

historical analogue. Id.; see also Rahimi, 144 S. Ct. at 1898

(“As we explained in Bruen, the appropriate analysis involves

considering whether the challenged regulation is consistent

with the principles that underpin our regulatory tradition”).

1. Historical Analogues to the Magazine Cap

With this understanding in mind, we turn now to whether,

on this preliminary record, the District has identified a “rele-

vantly similar” historical analogue for its magazine cap.

Bruen, 597 U.S. at 8. To do so, the District must identify an

historical tradition of regulation that burdens the right to armed

self-defense in a manner similar to the burden imposed by the

magazine cap (the “how”) and does so for a similar reason (the

“why”). As explained in greater detail below, we apply the

“nuanced approach” under Bruen to this inquiry.

Here, our inquiry turns upon whether the District can iden-

tify an historical regulation that restricts possession of an arm

based on a justification similar to that for the magazine cap,

namely, to respond to “the growing use of [ELCMs] to facili-

tate crime and, specifically, to perpetrate mass shootings.” Br.

of Appellee 46.

The District and the amici States proffer several candidates

for historical analogues of the magazine cap: laws regulating

the storage of gunpowder and ammunition; time, place, and

manner restrictions on when arms may be carried or firearms

discharged; Prohibition-era regulations of removable maga-

zines and their capacity; and restrictions on dangerous and un-

15

usual weapons, including weapons considered particularly dan-

gerous or susceptible to unprecedented lethality.

a. Storage of Gunpowder

The District and the amici States advance various re-

strictions on the storage of gunpowder in the Founding era as a

purportedly relevant historical tradition. A modern detachable

magazine is similar to a colonial or Founding-era cache of

gunpowder only insofar as it acts as a limit on the firepower

available to a single household. Those regulations are not

“relevantly similar” because they were purely fire prevention

measures that affected firearm capacity only incidentally, if at

all. 5 The suggestion that they limited the Second Amendment

right to keep and bear arms is silly.

5

“As Massachusetts's 1780 gunpowder statute put it, its goal was to

‘deter[] the Inhabitants thereof from keeping certain Quantities of

Powder in Houses and Ware-Houses, &c. to the great Inconvenience,

Discouragement and Danger of Persons assisting in Time of Fire.’”

Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early

American Origins of Gun Control, 73 FORDHAM L. REV. 487, 512

(2004) (quoting ch. V, 1780 Mass. Acts 326); see also, e.g., Act of

June 26, 1792, ch. X, 1792 Mass. Acts 208 (requiring gunpowder in

excess of the legal limit to be transported “in a waggon [sic] or

carriage, closely covered with leather or canvas, and without iron on

any part thereof, to be first approbated by the Firewards of said

town”); Act of Apr. 13, 1784, ch. 28, 1784 N.Y. Laws 627

(gunpowder in a home must be stored “into four stone jugs or tin

cannisters, which shall not contain more than seven pounds each”);

§ XLII, 1781-1782 Pa. Laws 41 (gunpowder “in any house, shop,

cellar, store or other place within the said borough” must be kept “in

the highest story of the house . . . unless it be at least fifty yards from

any dwelling house”).

16

b. Time, Place, and Manner Restrictions

We also agree with Hanson that the various time, place,

and manner restrictions identified by the District and the amici

States fail to identify a “relevantly similar” analogue. They

entail neither a justification nor a burden commensurate with

those of the magazine cap.

Take trap or spring guns: The District argues the tradition

of banning the setting of guns as a trap indicates a tradition of

regulating “unacceptable levels [of] risk of harm to innocent

bystanders.” This analogy is too generalized and “comes too

close to the means/end scrutiny that Bruen rejected.” Bevis, 85

F.4th at 1200. In any event, the burden imposed by trap guns

does not align with the burden imposed by the District’s

magazine cap. “The liability for spring guns and mantraps

arises from the fact that the defendant . . . expected the

trespasser and prepared an injury that is no more justified than

if he had held the gun and fired it.” United Zinc & Chem. Co.

v. Britt, 258 U.S. 268, 275 (1922). In other words, restrictions

on setting trap guns are justified because they target tortious

activity that lies outside the realm of lawful self-defense.

Nor do prohibitions on concealed carry constitute a “rele-

vantly similar” tradition; they lack a justification like the one

animating the District’s magazine cap. A prohibition on carry-

ing a concealed weapon does nothing to limit the lethality of

the weapon.

Laws that prohibit discharging a firearm within a city or

after dark fare no better. See, e.g., Ga. Code § 16-11-103

(2022) (prohibiting the discharge of firearms within 50 yards

of a public highway). Unlike the burden the magazine cap

imposes upon the right to bear arms, modest though it is, we

doubt city and nighttime prohibitions burden the right to armed

17

self-defense at all; self-defense surely would be a complete

defense to a charge under those statutes. Indeed, the purpose

of these laws is akin to a prohibition on breach of the peace.

See, e.g., Commonwealth v. Wing, 26 Mass. 1, 3–4 (1829)

(noting “the discharging of guns unnecessarily . . . is an offense

against the public peace and security” (cleaned up)).

Delaware’s colonial-era prohibition on firing guns in urban

areas, for example, had an exception for “days of public

rejoicing.” Robert H. Churchill, Gun Regulation, the Police

Power, and the Right to Keep Arms in Early America: The

Legal Context of the Second Amendment, 25 LAW & HIST. REV.

139, 163 (2007).

For these reasons, on the abbreviated record before us, we

cannot say the District has carried its burden of demonstrating

that time, place, and manner restrictions on the use of firearms

are “relevantly similar” historical analogues to the District’s

magazine cap.

c. Prohibition-Era Regulations

The district court held the magazine cap was consistent

with an historical tradition of regulating magazine capacity

based upon Prohibition-era bans and regulations. 671 F. Supp.

3d at 21-25. The comparison is somewhat helpful in docu-

menting a history of limiting magazine capacity, at least when

combined with rapid-firing capabilities. The district court

identified bans “adopted by nearly half of all states.” Id. at 21.

Some of those states also limited magazine capacity to even

fewer than 10 rounds — including two that limited capacity to

a single round. See, e.g., 1927 Mass. Acts 413, 413–14. But,

keeping in mind the preliminary nature of this decision, those

regulations alone may not suffice as a relevant analogue. Many

of those laws did not regulate magazine capacity itself; rather,

they addressed the combination of ELCMs and automatic fir-

18

ing — effectively, and often explicitly, directed at machine

guns. 6

This is to be expected, as those laws were enacted largely

in response to the then-novel Thompson submachine gun in-

vented in 1918. The regulation of machine guns through

restrictions on capacity and automatic firing together targets a

combination that renders a weapon significantly more lethal

than a weapon equipped with an ELCM alone.

d. Restrictions on Weapons Particularly

Capable of Unprecedented Lethality

Finally, the District and its amici argue that historical re-

strictions on particularly dangerous weapons and on the related

category of weapons particularly capable of unprecedented

lethality constitute a relevantly similar tradition. Those laws

are commensurate with the District’s justification of its

magazine cap to counter “the growing use of [ELCMs] to

facilitate crime and, specifically, to perpetrate mass shootings.”

Therefore, on the limited record before us, we agree with the

District that it has identified a relevant historical analogue and

Hanson is not likely to succeed on the merits of his claim.

6

See, e.g., 1933 Cal. Stat. 1169 §§ 2–3 (“[E]very person . . . who

within the State of California sells, offers for sale, possesses or

knowingly transports any . . . machine gun . . . is guilty of a public

offense,” defining machine gun as “all firearms known as machine

rifles, machine guns, or submachine guns capable of discharging

automatically and continuously loaded ammunition . . . auto-

matically fed after each discharge from or by means of clips, discs,

drums, belts or other separable mechanical device having a capacity

greater than ten cartridges” (emphases added)); 1932 La. Acts 337-

38 § 1 (defining machine gun in part as being “capable of

automatically discharging more than eight cartridges successively

without reloading”); 1934 S.C. Acts 1288 § 1 (same).

19

The District advances as an example the history of re-

strictions on Bowie knives or similar blades, and to a lesser ext-

ent pocket pistols. Together with the amici States, the District

recounts that, in response to rising murder rates and an outpour-

ing of public concern, “nearly every state in the Union re-

stricted Bowie (or similar long-bladed) knives in some manner,

whether by outlawing their possession, carry, sale, enhancing

criminal penalties, or taxing their ownership.” Br. of Appellee

38.

Most of those laws merely list Bowie knives by name in

the course of prohibiting the concealed carrying of dangerous

weapons generally, and therefore are not indicative of a “rele-

vantly similar” tradition. See, e.g., Acts of the General

Assembly of Virginia, Passed at the Session of 1838, ch. 101,

at 76 (“It is against the law to habitually or generally keep or

carry about his person any pistol, dirk, bowie knife, or any

other weapon of the like kind . . . hidden or concealed from

common observation”). A handful, however, did ban the

carrying, rather than only the concealment, of Bowie knives

with no or narrow exceptions. See 1881 Ark. Acts 191, An Act

to Preserve the Public Peace and Prevent Crime, ch. xcvi, § 1

(“That any person who shall wear or carry, in any manner

whatever, as a weapon, any dirk or bowie knife, or a sword, or

a spear in a cane, brass or metal knucks, razor, or any pistol of

any kind whatever, except such pistols as are used in the army

or navy of the United States, shall be guilty of a mis-

demeanor”); 1871 Tex. Laws 25 § 1(“[A]ny person carrying

on or about his person, saddle, or in his saddle bags, any . . .

bowie-knife . . . unless he had reasonable grounds for fearing

an unlawful attack on his person, and that such ground of attack

shall be immediate and pressing . . . misdemeanor”); 1889

Ariz. Sess. Laws 16, An Act Defining And Punishing Certain

Offenses Against The Public Peace, §§ 1–2 (“If any person . . .

20

shall carry on or about his person . . . any bowie knife . . . he

shall . . . forfeit to the County in which his is convicted, the

weapon or weapons so carried,” but providing a limited

exception for self-defense from an “imminent and threatening”

danger).

Contemporaneous court decisions also upheld laws

targeting Bowie knives against challenges based upon the

Second Amendment or a state equivalent. In Aymette v. State,

21 Tenn. 154, 158 (1840), for example, the Supreme Court of

Tennessee concluded:

They need not, for such a purpose, the use of those weap-

ons which are usually employed in private broils, and

which are efficient only in the hands of the robber and the

assassin. These weapons . . . could not be employed ad-

vantageously in the common defence of the citizens. The

right to keep and bear them is not, therefore, secured by

the constitution.

As the Supreme Court of Texas put it in Cockrum v. State, 24

Tex. 394, 402–03 (1859):

The bowie-knife differs from [guns or swords] in its device

and design; it is the instrument of almost certain death. He

who carries such a weapon, for lawful defense, as he may,

makes himself more dangerous to the rights of others, con-

sidering the frailties of human nature, than if he carried a

less dangerous weapon. Now, is the legislature powerless

to protect the rights of others thus the more endangered, by

superinducing caution against yielding to such frailties?

May the state not say, through its law, to the citizen, “this

right which you exercise, is very liable to be dangerous to

the rights of others, you must school your mind to forbear

the abuse of your right, by yielding to sudden passion; to

21

secure this necessary schooling of your mind, an increased

penalty must be affixed to the abuse of this right, so dan-

gerous to others.

We emphasize that our identification of a relevant histori-

cal tradition is based upon the regulation of weapons that are

particularly capable of unprecedented lethality and not, as the

dissent would have it, upon the regulation of Bowie knives

specifically. Nor is our conclusion based upon statutes the

dissent characterizes as “not only too little [but also] too late.”

Dissent at 46. 7

7

The dissent states that “the original meaning that controls [the

District’s magazine cap] is undoubtedly the original meaning [of the

Second Amendment] in 1791,” rather than its meaning in 1868,

taking no position on whether the same is true for state laws. Dissent

at 46 n.203. We see three reasons, however, to believe analogues

after 1791 are still relevant. First, the limitations on the Second

Amendment listed in Heller (involving a D.C. regulation) were based

on examples that occurred throughout the 19th century. See Heller,

554 U.S. at 626-627. Second, the Supreme Court has relied on early

19th-century (and still earlier) history to overturn state laws that

implicate the Second Amendment even though the Second

Amendment had not yet been incorporated through the Due Process

Clause, noting that “individual rights enumerated in the Bill of

Rights and made applicable against the States through the Fourteenth

Amendment have the same scope as against the Federal

Government.” Bruen, 597 U.S. at 38; see also, e.g., Rahimi, 144 S.

Ct. at 1899–902; Bruen, 597 U.S. at 33–59; id. at 38. Third, the

Supreme Court has similarly emphasized that our inquiry is “not

meant to suggest a law trapped in amber” and that “the Second

Amendment permits more than just those regulations identical to the

ones that could be found in 1791.” Rahimi, 144 S. Ct. at 1897–98.

On the limited record before us, we believe that this evidence

demonstrates a relevant historical tradition, as required by Bruen and

Rahimi.

22

The broader regulation of weapons that are particularly

capable of unprecedented lethality includes other prominent

examples, such as the ban on sawed-off shotguns held constitu-

tional by the Supreme Court in Miller and implicitly approved

in Heller. See 554 U.S. at 627; see also Ocean State Tactical

v. Rhode Island, 95 F.4th 38, 47 (1st Cir. 2024) (The “Congress

began regulating sawed-off shotguns in 1934, after they

became popular with the mass shooters of their day —

notorious Prohibition-era gangsters like Bonnie Parker and

Clyde Barrow.” (quotations omitted)). The examples above

regarding Prohibition-era bans on machine guns, although

insufficient to support a tradition of regulating magazines in

and of themselves, fit nicely into the tradition of regulating

weapons particularly capable of unprecedented lethality, as

then-Attorney General Homer Cummings testified in 1934 dur-

Finally, the dissent states that “the Supreme Court’s subsequent cases

“confirm that ‘the relative dangerousness of a weapon is irrelevant

when the weapon belongs to a class of arms commonly used for

lawful purposes.’” Dissent at 43 (quoting Caetano, 577 U.S. at 418

(Alito, J., concurring) (emphasis added)). This statement of a single

justice is obviously not controlling. We also think there is merit in

the District’s argument that Heller’s reference to “dangerous and

unusual weapons,” 554 U.S. at 627 means “uncommonly dangerous”

weapons. All arms are self-evidently “dangerous”; in this context,

therefore, “dangerous” must mean something other than its standard

definition or the word would do no work delineating the category.

From the canonical example in the case law — the sawed-off

shotguns at issue in United States v. Miller, 307 U.S. 174 (1939) —

we can infer that dangerous in the phrase “dangerous and unusual”

means “uncommonly dangerous.” See Samuel L. Bray, “Necessary

and Proper” and “Cruel and Unusual”: Hendiadys in the Consti-

tution, 102 Va. L. Rev. 687, 695 (2016) (explaining a “hendiadys,”

a figure of speech involving “two terms, separated by a conjunction,

[that] are melded together to form a single complex expression”).

23

ing hearings regarding the bill that became the National

Firearms Act:

There are more people in the underworld today armed with

deadly weapons, in fact, twice as many, as there are in the

Army and the Navy of the United States combined. In

other words, roughly speaking, there are at least 500,000

of these people who are warring against society and who

are carrying about with them or have available at hand,

weapons of the most deadly character.

National Firearms Act: Hearing(s) on H.R. 9066 Before the

Comm. on Ways and Means, 73rd Cong. 45 (1934) (cleaned

up); accord Andrews v. State, 50 Tenn. 165, 189 (1871) (“The

law allows ample means of self-defense, without the use of the

weapons which we have held may be rightfully proscribed by

this statute. The object being to banish these weapons from the

community by an absolute prohibition for the prevention of

crime, no man's particular safety, if such case could exist, ought

to be allowed to defeat this end.”); State v. Reid, 1 Ala. 612,

617 (1840) (“[A] law which is intended merely to promote per-

sonal security, and to put down lawless aggression and vio-

lence, and to that end inhibits the wearing of certain weapons,

in such a manner as is calculated to exert an unhappy influence

upon the moral feelings of the wearer, by making him less re-

gardful of the personal security of others, does not come in col-

lision with the Constitution.”); see also Staples v. United

States, 511 U.S. 600, 611–12 (1994) (“[W]e might surely

classify certain categories of guns — no doubt including the

machineguns, sawed-off shotguns, and artillery pieces that

Congress has subjected to regulation — as items the ownership

of which would have the same quasi-suspect character we

attributed to owning hand grenades.”); Ocean State Tactical,

95 F.4th at 49 (“[O]ur nation's historical tradition recognizes

the need to protect against the greater dangers posed by some

24

weapons (as compared to, for example, handguns) as a

sufficient justification for firearm regulation”).

Although these laws may target different crimes than does

the magazine cap, they share the same basic purpose: To in-

hibit then unprecedentedly lethal criminal activity by

restricting or banning weapons that are particularly susceptible

to, and were widely used for, multiple homicides and mass

injuries. Because many of the preceding examples are also

outright bans on an entire class of weapons, they impose a

burden on the right to armed self-defense comparable to (if nor

greater than) the burden imposed by the District’s magazine

cap. 8

To summarize, we hold that, at this interlocutory juncture,

the District has met its burden to show its magazine cap is “con-

sistent with the Nation's historical tradition of firearm regula-

tion,” Bruen, 597 U.S. at 24. Again, “the [magazine cap] must

comport with the principles underlying the Second

Amendment, but it need not be a dead ringer or a historical

8

The dissent argues that the District’s law is different from

permissible regulations because it is a “ban.” Dissent at, e.g., 1 n.4,

31, 36-37, 45. But the dissent acknowledges that the only merits

question on this preliminary motion is whether the District erred in

capping magazine capacity at 10 rounds rather than 17. Dissent at

36 n.169. Treating every line-drawing regulation, including in areas

where appellants do not even dispute that a line can constitutionally

be drawn at some point, gilds the lily, rather than undertakes a

nuanced analysis. In any event, we view the dissent’s distinction

between an “outright ban” and a “regulation” of arms to be of

dubious utility. One could, for example, easily reframe the law at

issue in Rahimi — which “prohibit[ed]” individuals shown to be a

credible threat to the physical safety of an intimate partner from

possessing a firearm, Rahimi, 144 S. Ct. at 1894 — as an outright

ban on the possession of firearms by this class of individuals.

25

twin.” Rahimi, 144 S. Ct. at 1898 (cleaned up). On a more

developed record, evidence disputing the linkage between

ELCMs and mass shootings may render inapposite the tradition

of banning weapons capable of unprecedented lethality. On the

present record, however, we think the District’s magazine cap

sufficiently parallels a relevantly similar historical analogue to

foreclose a finding that appellants are likely to succeed on the

merits.

2. The Nuanced Approach to History Under Bruen

Nevertheless, Hanson claims no historical tradition, in-

cluding this one, can be relevant because weapons capable of

holding or shooting more than ten rounds without reloading

have existed since the Founding (true) and there is no historical

tradition either of prohibiting them or of regulating the number

of rounds a gun could hold (true). Therefore, he argues, the

District’s magazine cap is unconstitutional. We agree there is

no narrowly described tradition of banning weapons capable of

holding or shooting more than ten rounds without reloading or,

more generally, of regulating the number of rounds a gun may

hold. The lack of such a tradition is to be expected, however,

because firearms did not have the capacity to occasion a socie-

tal concern with mass shootings or other widespread homicidal

criminality until dramatic technological changes vastly in-

creased their capacity and the rapidity of firing; there simply is

no relevantly similar historical analogue to a modern, semiau-

tomatic handgun equipped with an ELCM. Accord Friedman

v. City of Highland Park, Ill., 784 F.3d 406, 410 (7th Cir. 2015)

(“Most guns available [in 1791] could not fire more than one

shot without being reloaded; revolvers with rotating cylinders

weren’t widely available until the early 19th century. Semi-

automatic guns and large-capacity magazines are more recent

developments”).

26

Again, Rahimi makes clear that “the Second Amendment

permits more than just those regulations identical to ones that

could be found in 1791.” 144 S. Ct. at 1897–98; see also id. at

*30 (Barrett, J., concurring) (cautioning against “assum[ing]

that founding-era legislatures maximally exercised their power

to regulate”). Moreover, as Bruen explained, “cases implicat-

ing unprecedented societal concerns or dramatic technological

changes may require a more nuanced approach.” 597 U.S. at

27. Because these criteria are in the disjunctive, the govern-

ment may demonstrate a constitutionally adequate historical

analogue for a regulation or ban of an arm implicating either

criterion. We agree with the District that ELCMs implicate

both.

a. Unprecedented Societal Concern

Large capacity magazines have given rise to an unprece-

dented societal concern: mass shootings. As the First Circuit

has observed, there is “no direct precedent for the contempo-

rary and growing societal concern that [ELCMs] have become

the preferred tool for murderous individuals intent on killing as

many people as possible, as quickly as possible.” Ocean State

Tactical 95 F.4th at 44. This comes as no surprise, because

mass shootings themselves are a relatively recent phenomenon:

“The first known mass shooting resulting in ten or more deaths

did not occur in this country until 1949.” Id. (cleaned up).

Mass shootings have become ever more common since

then. 9 A Congressional Research Service report notes the

9

“The definition of mass shooting varies by source.” Office of the

U.S. Surgeon General, The U.S. Surgeon General’s Advisory on

Firearm Violence: A Public Health Crisis in America 11 (2024). The

Surgeon General’s Advisory defines a mass shooting as “four or

more shot or killed, not including the shooter,” which it borrows

27

steady increase in the frequency of mass shootings, from an

average of 1.1 per year during the 1970s, to an average of 4.5

per year from 2010 through 2013, Krouse & Richardson,

above, at 14, and “more than 600 . . . each year between 2020

and 2023,” according to data published by Gun Violence

Archive and cited in the Surgeon General’s Advisory, above,

at 11. “Despite accounting for a relatively small number of

firearm deaths, mass shooting incidents cause outsized

collective trauma on society and have a strong negative effect

on the public’s perception of safety.” Id. “Mass shootings that

involve a firearm with a large-capacity magazine result in

significantly more injuries and deaths than shootings that do

not involve such magazines.” Id. at 30 (citing Koper, 19 Crim.

& Pub. Pol’y at 152–53). There can be little doubt that mass

shootings are an unprecedented societal concern.

from the Gun Violence Archive. Id. The Congressional Research

Service defines it as “a multiple homicide incident in which four or

more victims are murdered with firearms — not including the

offender(s) — within one event, and in one or more locations

relatively near one another.” William J. Krouse & Daniel J.

Richardson, Congressional Research Service, Mass Murder with

Firearms: Incidents and Victims, 1999–2013, at 2 (2015). Another

study similarly defines mass shootings as “incidents in which at least

four persons were killed, not including the shooter if applicable and

irrespective of the number of additional victims shot but not killed.”

Christopher S. Koper, Assessing the potential to reduce deaths and

injuries from mass shootings through restrictions on assault

weapons and other high-capacity semiautomatic firearms, 19 Crim.

& Pub. Pol’y 147, 150 (2020). The Congress, meanwhile, has

defined “mass killing” to mean “3 or more killings in a single

incident.” 28 U.S.C. § 530C(b)(1)(M)(i)(I).

28

b. Dramatic Technological Change

A nuanced approach is also appropriate for the analysis of

historical analogues to the District’s magazine cap because

large-capacity, detachable magazines for semiautomatic

handguns are a relatively modern invention. They are different

in form and in kind from arms in common use during the

Founding and Reconstruction eras, the relevant periods for

assessing the original understanding of the Second and the

Fourteenth Amendments, respectively. 10

Compared to the historical analogues Hanson offers, mod-

ern firearms equipped with ELCMs do not have the propensity

to jam or misfire that plagued many historical weapons.

ELCMs also have significantly larger capacities and can fire

multiple rounds in a shorter time. Indeed, a handgun with an

ELCM can fire more than 10 rounds in a few seconds. The

Glock 17 handgun, for example, can fire 30 rounds in five sec-

onds. Add to that the ease with which one detachable magazine

can be swapped for another, and a handgun with an ELCM can

fire scores of shots in a matter of seconds.

There were no remotely comparable arms in common use

even when the Fourteenth Amendment was ratified. As a

result, modern firearms equipped with ELCMs have enabled

10

See Bruen, 597 U.S. at 82 (Barrett, J., concurring) (there is an

“ongoing scholarly debate on whether courts should primarily rely

on the prevailing understanding of an individual right when the

Fourteenth Amendment was ratified in 1868 or when the Bill of

Rights was ratified in 1791” (cleaned up)). Because the choice

would not alter our conclusion, we take no position regarding

whether the relevant period for analysis is 1791 or 1868. See, e.g.,

Rahimi, 144 S. Ct. at 1898 n.1 (“under the circumstances, resolving

the dispute [is] unnecessary to decide the case”).

29

mass shootings to a degree impossible with Founding or

Reconstruction era weapons.

To bolster his argument to the contrary, Hanson offers sev-

eral pre-Fourteenth Amendment examples of weapons capable

of holding or shooting more than ten rounds without reloading,

see Appendix: Historical Firearms, some of which are irrele-

vant and none of which is persuasive. Most of his examples

were never in common use — indeed, some were no more than

one-offs or prototypes — and therefore have no bearing on the

scope of the Second Amendment, which “protects only the

carrying of weapons that are those in common use at the time.”

Bruen, 597 U.S. at 47 (cleaned up). Of the four that are

arguably relevant (the Jennings, Pepperbox, Colt, and

Winchester), there is no evidence any could be fired as rapidly

as a modern handgun. All but the Jennings were also prone to

jamming or to misfiring. As a result, none had nearly the same

potential for mass shootings as does an ELCM.

Contrary to Hanson’s assertions, none of his examples is a

functional analogue to a modern gun with a detachable ELCM.

We do not expect to find an historical tradition of regulating

handguns with detachable magazines before ratification of the

Fourteenth Amendment, much less ratification of the Second

Amendment, because there was then no “relevantly similar”

weapon “in common use,” until the late 19th or early 20th cen-

tury, when the Mauser C96 semi-automatic pistol entered cir-

culation. 11

11

Although the Mauser C96 semi-automatic pistol is relevantly

similar to a modern handgun with an ELCM, it and similar weapons

that postdate the ratification of the Fourteenth Amendment represent

dramatic technological advances over Founding- and

Reconstruction-era firearms.

30

* * *

Because ELCMs implicate unprecedented societal con-

cerns and dramatic technological changes, the lack of a “pre-

cise match” does not preclude finding at this preliminary junc-

ture an historical tradition “analogous enough to pass constitu-

tional muster.” Therefore, we hold Hanson is not sufficiently

likely to succeed on the merits of his claim to warrant the entry

of a preliminary injunction against enforcement of the maga-

zine cap.

IV. Other Preliminary Injunction Factors

In addition to establishing a likelihood of success on the

merits, a party seeking a preliminary injunction must make a

“clear showing” that “it will likely suffer irreparable harm be-

fore the district court can resolve the merits of the case,” that

“the balance of equities favors preliminary relief,” and that “an

injunction is in the public interest.” Singh v. Berger, 56 F.4th

88, 95 (D.C. Cir. 2022); see also Winter, 555 U.S. 7, 32 (“An

injunction is a matter of equitable discretion; it does not follow

from success on the merits as a matter of course.” (citing

Weinberger v. Romero–Barcelo, 456 U.S. 305, 313 (1982))).

Those factors enforce a vital, structural limitation on the role

of courts. Unlike the Political Branches, courts are

institutionally reactive. Our authority to alter legal rights and

obligations generally derives from — rather than precedes —

our determination of the merits. Said another way, “[t]he

judicial power is inseparably connected with the judicial duty

to decide cases and controversies by determining the parties’

legal rights and obligations,” and a “preliminary injunction is

remarkable because it imposes a constraint on the enjoined

party’s actions in advance of any such determination.” O

Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389

F.3d 973, 1014 (10th Cir. 2004) (McConnell, J., concurring);

31

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

of Safety & Homeland Sec., 108 F.4th 194, 199 (3d Cir. 2024)

(“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”) (cleaned up).

On the record before us, Hanson has failed to show that the

preliminary injunction factors warrant the “extraordinary rem-

edy” of a preliminary injunction that would alter a 15-year sta-

tus quo and effectively grant him the same relief he would ob-

tain at the end of trial before that trial even starts.

The dissent analyzes none of the normal preliminary

injunction factors, instead invoking the narrow exception for

when “the merits of the plaintiffs’ challenge are certain and

don’t turn on disputed facts.” Dissent at 53 n.234 (citing

Wrenn v. D.C., 864 F.3d 650, 667 (D.C. Cir. 2017)). But that

exception does not apply here, even if the dissent is right and

we are wrong about the merits. No precedent dictates with

certainty that, in confronting the unprecedented criminal and

lethal misuse ELCMs have allowed, the District erred in

capping magazine capacity at 10 rather than 17. Appellants,

after all, do not argue in this motion that the Second

Amendment prohibits any cap on magazine capacity for

semiautomatic weapons. Nor does the dissent.

Instead, we assess all the preliminary injunction factors to

determine whether we should act despite our uncertainty on an

undeveloped record and amid factual disputes, rather than

deciding before trial simply because we believe we must be

right. After all, a preliminary injunction “is not a shortcut to

the merits.” Delaware State Sportsmen’s Assn, 108 F.4th at

197.

32

A. Irreparable Harm

To begin, we note that irreparable harm, even when

demonstrated, may be insufficient on its own to warrant a

preliminary injunction. “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). The purpose of a preliminary injunction

is not to prevent all harm but “merely to preserve the relative

positions of the parties until a trial on the merits can be held.”

Starbucks Corp. v. McKinney, 602 U.S. ---, 144 S. Ct. 1570,

1576, (2024).

Nor does the alleged deprivation of a constitutional right

constitute irreparable harm. Even in the sensitive areas of

freedom of speech and religion, where the risk of chilling

protected conduct is especially high, we do not “axiomatically”

find that a plaintiff will suffer irreparable harm simply because

it alleges a violation of its rights. Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 302 (D.C. Cir. 2006).

Rather, a plaintiff must show why the court will be unable to

grant meaningful relief following trial. Thus, far from treating

the Second Amendment as a “second-class right,” McDonald

v. City of Chicago, Ill., 561 U.S. 742, 780 (2010), we assess

Hanson’s claim of irreparable harm using the same standard we

apply to all fundamental rights.

Hanson has not come forward with a factual record

showing that he will be irreparably harmed if he is required to

wait until the court hears his case before obtaining larger-

capacity magazines for his firearms. “Irreparable harm,” in this

context, refers to harm within a specific timeframe. That is,

Hanson must demonstrate injury that is sufficiently certain,

persuasively demonstrated, and so clearly irremediable that it

33

warrants a court reaching out to alter the status quo before the

merits are resolved. See O Centro Espirita, 389 F.3d at 1013

(“[T]here are cases in which preservation of the status quo may

so clearly inflict irreparable harm on the movant, with so little

probability of being upheld on the merits, that a preliminary

injunction may be appropriate even though it requires a

departure from the status quo”).

Hanson rests his entire irreparable harm showing on the

argument that the District’s magazine cap burdens his Second

Amendment right to use magazines of between 11 and 17

rounds for self-defense. See Oral Arg. Tr. 11:20–12:22 (coun-

sel for Hanson explaining that the largest magazine that Han-

son “possess[es]” and “want[s] to carry in the District” holds

17 bullets); Oral Arg. Tr. 14:17–25 (similar); see also id. at

9:20–13:13 (counsel for Hanson acknowledging that the re-

quested preliminary injunction is limited to Hanson’s as-ap-

plied challenge); id. at 77:20–23 (“[T]he imposition, the actual

threat to the right here is the ability for my clients to bear an

arm that they’ve decided is necessary for their self-defense pur-

poses.”); id. at 20:9–21:3 (counsel for Hanson acknowledging

that self-defense is the operative Second Amendment interest

for their preliminary-injunction request). But Hanson does not

offer any factual showing of irreparable harm to his self-de-

fense interest.

First, Hanson has not provided any specific explanation of

the irreparable harm he faces from having the ability to fire 11,

but not 18, rounds without pausing during the pendency of this

litigation. 12 In fact, each of the appellants owns at least one

12

The District’s magazine cap permits Hanson to fire 11 rounds

without pausing — 10 rounds in the magazine, plus one round in the

chamber. Hanson seeks to use 17-round magazines that would

enable him to fire 18 rounds without pausing — 17 rounds in the

magazine, plus one round in the chamber.

34

handgun for which the standard-issue magazine contains 10 or

fewer rounds. See J.A. 181–185. And the standard-issue mag-

azine for six of the 13 firearms at issue in this as-applied chal-

lenge likewise contains no more than 10 rounds. See J.A. 181–

185. Hanson, having limited his injunctive request to his as-

applied challenge, does not allege that he faces difficulty ob-

taining such standard-issue magazines, and he does not identify

any irreparable harm to his self-defense that will arise if he is

limited to using the magazines that he already owns while the

merits of his constitutional challenge to the District’s magazine

cap are resolved.

Hanson protests that he faces irreparable harm from the

District’s magazine cap because it prevents him from “be[ing]

prepared for th[e] unthinkable circumstance where [he] might

need to use more than [10] rounds.” Oral Arg. Tr. 75:22–23;

see id. at 75:22–76:6; see also id. at 72:23–78:1. But Hanson

concedes that such circumstances are, at most, “rare” and “un-

usual.” Id. at. 74:25, 75:6; see id. at 76:17–24. The Supreme

Court has held that “simply showing some possibility of irrep-

arable injury” is not sufficient to make the irreparable harm

showing needed to obtain preliminary relief. Nken v. Holder,

556 U.S. 418, 434 (2009) (emphasis added; quotations

omitted). Yet in Hanson’s own words, he has raised only re-

mote conjecture. See Oral Arg. Tr. 75:22–23, 74:25, 75:6.

Highlighting that point, Hanson himself has explained

that, “[i]n most self-defense circumstances, pulling out a

weapon and brandishing it will scare off somebody else.” Oral

Arg. Tr. 75:9–10. In addition, Hanson’s own evidence in sup-

port of a preliminary injunction shows that “the average

amount of rounds fired in self-defense is usually less than 10”

and “generally only two or three.” J.A. 721 (Decl. of John

Murphy); see id. at 1039–1040 (district court noting that a prior

study conducted by one of Hanson’s experts “concluded that

35

the average number of shots a civilian fired in a self-defense

incident [between 1997 and 2001] was 2.2”). Hanson, in short,

has not shown that there will be any “time-sensitive” actual

effect on his ability to engage in self-defense while this

litigation proceeds. See Del. State Sportsmen’s Ass’n., 108

F.4th at 205 (declining preliminarily to enjoin a similar

magazine-size cap when there was “scant evidence” of any

“time-sensitive need” for larger magazines than the law

allowed).

Second, Hanson himself does not argue that any restriction

on magazine capacity would inflict irreparable harm on his

Second Amendment rights. He, in fact, agrees with the District

that the Second Amendment does not protect magazines of all

sizes, and he concedes that there is a magazine capacity that the

District can constitutionally limit. See Oral Arg. Tr. 7:23–

10:24 (counsel for Hanson conceding that the District could

ban magazines not in common use for self-defense). He simply

disagrees with where the District has drawn that line. But that

type of close line-drawing regarding how many bullets to per-

mit in a magazine while litigation is pending does not, without

something more concrete than fear of the “unthinkable,” be-

speak irreparable harm. Cf. Ayotte v. Planned Parenthood of

N. New England, 546 U.S. 320, 330 (2006) (“Making distinc-

tions . . . where line-drawing is inherently complex, may call

for a far more serious invasion of the legislative domain than

we ought to undertake.”) (cleaned up).

Third, Hanson has evidenced no urgency in obtaining relief

in this litigation. He consented to a stay of district court pro-

ceedings pending resolution of this appeal while at the same

time failing to seek expedited review from this court. “[A]

party requesting a preliminary injunction must generally show

reasonable diligence.” Benisek v. Lamone, 585 U.S. 155, 159

(2018). Although consenting to a stay or declining to seek

36

expedited review on appeal will not always establish lack of

diligence on the part of the party seeking injunctive relief, such

action, when unexplained, undercuts claims of irreparable

harm. Hanson’s unhurried litigation tactics counsel against a

finding of irreparable harm here.

B. Balance of the Equities

Finally, the balance of equities also weighs against granting

a preliminary injunction at this time. A party seeking a prelim-

inary injunction must show that “the balance of equities favors

preliminary relief” and that “an injunction is in the public in-

terest.” Singh, 56 F.4th at 95. In analyzing this record, we

must carefully balance the equities by weighing the harm to the

moving party and the public if there is no injunction against the

harm to the government and the public if there is. See League

of Women Voters of the U.S. v. Newby, 838 F.3d 1, 12–14 (D.C.

Cir. 2016).

On the District’s side of the balance is the governmental

interest in enforcing its duly enacted law, and the likelihood of

“concrete harm to [the District’s] law enforcement and public

safety interests” were we to grant a preliminary injunction.

Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J.,

in chambers). The District has demonstrated that it will likely

suffer irreparable harm if an injunction issues. Even at this pre-

liminary stage, the record contains evidence that the District

would experience an influx of ELCMs if this court were to pre-

liminarily enjoin the District’s magazine cap. See J.A. 119.

The District notes that over one million ELCMs “flooded into

California in the brief [one-week] period after [California’s

ELCM cap] was enjoined but before the ruling was stayed by

the district court.” District Br. 51 (citing Matthew Green, Gun

Groups: More Than a Million High-Capacity Magazines

Flooded California During Weeklong Ban Suspension, KQED

37

(Apr. 12, 2019), https://perma.cc/65NQ-Z6D6). Hanson has

not offered any evidence that rebuts this claim or that shows

the District would not face similar harm were an injunction to

issue here.

The District’s harm, moreover, encompasses not only the

likely proliferation of ELCMs, but also the uses to which those

magazines can be put. The District submitted expert testimony

that ELCMs are “extraordinarily lethal” when used in combi-

nation with semiautomatic firearms, increasing the number of

individuals killed in mass shootings and other criminal activity.

J.A. 477; see id. (“Without extended magazines, semiautomatic

rifles cause an average of 40 percent more deaths and injuries

in mass shootings than regular firearms, and semiautomatic

handguns [cause] 11 percent more than regular firearms. But

with extended magazines, semiautomatic rifles cause an aver-

age of 299 percent more deaths and injuries than regular fire-

arms, and semiautomatic handguns [cause] 184 percent more

than regular firearms.”). The District has a particular and

unique interest in reducing that lethality “given homeland se-

curity issues in the District” as the seat of the federal govern-

ment and the location of countless sensitive governmental in-

stitutions and protected personnel. Br. of Appellee 4 (quoting

Committee on Pub. Safety and the Judiciary, D.C. Council,

Report on Bill 17-843, at 9 (2008)).

Hanson, for his part, asserts the public’s interest in exer-

cising the Second Amendment right to bear constitutionally

protected arms. Cf. Singh, 56 F.4th at 107 (“On the Plaintiffs’

side of the balance is the weighty public interest in the free ex-

ercise of religion that RFRA protects”).

Yet the mere fact that Hanson seeks to enjoin the District’s

magazine cap on constitutional grounds does not decide our

balance-of-the-equities inquiry. To the contrary, this court

38

must balance the equities of the parties and the public even

when a party seeks to restrain the enforcement of an allegedly

unconstitutional law. See Singh, 56 F.4th at 107–109;

Archdiocese of Wash. v. Washington Metro. Area Transit

Auth., 897 F.3d 314, 334–335 (D.C. Cir. 2018). Furthermore,

we have stated that the public interest in such cases “rises and

falls with the strength of [the moving party’s] showing” on the

merits. Archdiocese of Wash., 897 F.3d at 335. While “[t]he

public interest favors the protection of constitutional rights,”

Hanson would need to establish a likely violation of his consti-

tutional rights to establish that the public interest outweighs the

District’s unrebutted showing of substantial harm, a showing

he has not made. Id. (explaining the parties’ relative equities

might balance differently if the plaintiffs had established a

likelihood of success on the merits of their constitutional claim

and, in turn, that the public interest favored an injunction).

In addition, Hanson is seeking at this preliminary stage a

longstanding-status-quo-altering injunction that effectively

gives him the full relief he would receive if he won on the mer-

its. Preliminary injunctions, though, “are generally a ‘stopgap

measure’ meant only to ‘preserve the relative positions of the

parties’ until trial.” Singh, 56 F.4th at 95 (quoting Sherley v.

Sebelius, 689 F.3d 776, 781–782 (D.C. Cir. 2012)). “After all,

‘deciding whether to grant a preliminary injunction is normally

to make a choice under conditions of grave uncertainty.’” Id.

(quoting O Centro Espirita, 389 F.3d at 1015). Because “a

grant of preliminary relief could prove to be mistaken once the

merits are finally decided,” courts must be “institutionally wary

of granting relief that disrupts, rather than preserves, the status

quo, especially when that relief cannot be undone if the non-

movant ultimately wins on the merits.” Id. (quotations

omitted). At bottom, that “reluctance to disturb the status quo

prior to trial on the merits is an expression of judicial humility.”

O Centro Espirita, 389 F.3d at 1015.

39

Concern about so materially altering the status quo has

particular purchase on the record of this case. For 15 years,

District law enforcement has operated and been resourced with

the magazine cap in place. The District has also shown that an

erroneously issued preliminary injunction suspending its law

could drastically compromise the District’s ability to enforce

its magazine cap far into the future — long beyond the term of

the preliminary injunction itself — because of the likelihood

that ELCMs will flood into the District during any such injunc-

tive relief. Hanson, in contrast, would suffer from an erroneous

preliminary analysis of his claim for a far shorter time while

the merits of this case are resolved. Those unequal conse-

quences carry material weight in the equitable preliminary-in-

junction calculus. Cf. Singh, 56 F.4th at 97 (“The public con-

sequences of employing the extraordinary remedy of injunction

necessarily include the risk that the relief requested will cause

unusual disruption if granted in error, for example by disturb-

ing the status quo in a way that cannot readily be undone.”)

(cleaned up).

Finally, we cannot simply rebalance the equities by limit-

ing injunctive relief to the four appellants in this case. Were

this court to direct the issuance of such a preliminary injunc-

tion, a follow-on class-action suit seeking the same relief would

inevitably follow and almost inevitably have to be granted.

Allowing preliminary injunctive relief in such a case would ul-

timately result in the very harms to the public interest detailed

above. As a result, the balance of the equities in this case does

not favor a preliminary injunction, no matter the injunction’s

scope.

In sum, a “judicial version of Hippocrates’ ancient injunc-

tion to physicians — above all, to do no harm — counsels

against forcing changes before there has been a determination

40

of the parties’ legal rights” and in favor of maintaining the sta-

tus quo. O Centro Espirita, 389 F.3d at 1012. Hanson has not,

on the record before us, shown the type of irreparable harm and

favorable balancing of equities and interests that can warrant

the exceptional relief of a status-quo-altering injunction

handing him the same relief he would ordinarily obtain only

after prevailing on the merits.

V. Summary and Conclusion

Because Hanson has failed to demonstrate a likelihood of

success on the merits or that he has suffered irreparable harm,

and because the balance of equities does not weigh in his favor,

the order of the district court is

Affirmed.

41

Appendix: Historical Firearms

Hanson offers a plethora of historical examples to argue

that extra-large capacity magazines (ELCMs) are nothing new.

For the reasons given below, each of his examples misses the

mark.

His first example is a 16-shot wheellock created around

1580. See David B. Kopel, The History of Firearm Magazines

and Magazine Prohibitions, 78 ALB. L. REV. 849, 852 & n.21

(2015) (citing Lewis Winant, Firearms Curiosa 168–70 (Ishi

Press Int’l 2009) (1954)). The wheellock lacks both the rapid-

reloading capability and the trigger control of a modern semi-

automatic handgun with a detachable magazine, which limited

its potential lethality. One wheel lock would ignite a fuse and

fire the ten upper charges without stopping and another wheel

lock would fire the remaining six lower charges. This gun was

“very rare,” however; indeed, it may have been a one-off, arti-

sanal curiosity. Winant, above, at 168–70; see A 16-Shot

Wheel Lock, America’s 1st Freedom (June 2014),

https://web.archive.org/web/20140702092902/https:/www.nra

publications.org/index.php/17739/a-16-shot-wheel-lock/

(noting the “highly decorated” and “unique rifle” had

“achieved a multi-shot capability that would not be reached

again until the American Civil War”).

Hanson also directs us to the “Puckle Gun,” patented in

1718, which he describes as one of “the more successful of the

early designs” of multi-shot firearms. But the Puckle Gun

never entered commercial production; only two prototypes

were made; and they suffered from mechanical problems. Br.

of Amici Curiae Brady Center to Prevent Gun Violence et al.

(Brady Br.) at 10–11. Even if it had entered commercial

production, however, the Puckle Gun still would not be a

“relevantly similar” analogue: It was mounted on a tripod and

42

operated by hand crank, making it more akin to a Gatling gun

than to a semiautomatic handgun with an ELCM.

U.K. Patent No. 418 (issued May 15, 1718).

Hanson next proffers the Girandoni air rifle, invented in

1779. The Girandoni rifle was never in common use: Only

around 1,500 were produced and even fewer made their way to

America. Robert J. Spitzer, Understanding Gun Law History

after Bruen: Moving Forward by Looking Back, 51 FORDHAM

URB. L.J. 57, 76–77 (2023); see also John Plaster, The History

of Sniping & Sharpshooting 70 (2008). It remained such a

curiosity that, in 1792, one museum proprietor in New York

charged visitors six pence to see it discharge a shot. Gardiner

Baker, To the Curious, The Weekly Museum (New York, NY),

Feb. 11, 1792.

43

Hanson’s next example, the Jennings multi-shot flintlock

rifle, was beset by “technical challenges.” Ass’n of N.J. Rifle

& Pistol Clubs v. Att’y Gen. N.J., 974 F.3d 237, 255 (3d Cir.

2020) (Matey, J., dissenting) (cleaned up), cert. granted, judg-

ment vacated sub nom. Ass’n of N.J. Rifle & Pistol Clubs v.

Bruck, 142 S. Ct. 2894 (2022). The rifle has a “complicated

mechanism” with a moving hopper and swivel covers that

required a hammer to be pulled back for each shot. Corey R.

Wardrop, A Close-up Look at the Ellis-Jennings Repeating

Flintlock Rifle, THE FIREARM BLOG (July 27, 2017),

https://web.archive.org/web/20220402053233/https://www.th

efirearmblog.com/blog/2017/07/27/close-look-ellis-jennings-

repeating-flintlock-rifle/. Moreover, most of these rifles had a

capacity of only four shots, and only 521 were ever made. Id.

Hanson also points to “Pepperbox” pistols, which were ca-

pable of firing only “five or six rounds without reloading,” and

therefore are not comparable in lethality to a modern ELCM.

Brady Br. at 13 (citing Wheelgun Wednesday: A Closer Look

at Pepperbox Pistols, THE FIREARM BLOG (Dec. 8, 2021),

https://perma.cc/2Z2U-RJ62)) (cleaned up). Pepperbox pistols

were also prone to “chain-firing," that is, all barrels firing at

once. Id.

Next is the Colt revolver, introduced in 1836. See

Improvement in Fire-Arms, U.S. Patent No. 9430X (issued

Feb. 25, 1836). The Colt revolver “was the first widely used

multishot weapon,” Jim Rasenberger, Revolver: Sam Colt and

the Six-Shooter that Changed America 401 (2020), but the

shooter was required to cock the hammer before firing each

round; the gun was limited to six shots; it was prone to

jamming; and, unlike a handgun with an ELCM, it could not be

rapidly reloaded. The six-shooter is not a relevant comparator

because the District allows six-shooters. Its magazine cap is

set at 10 (plus one in the chamber).

44

Hanson next points to the Bennet & Haviland Revolving

Rifle, which began circulating in 1838, as well as the similar

Porter and Hall rifles of the 1850s. There is no evidence that

any of these rifles were in common use. John Paul Jarvis,

Bennet & Havilland Revolving Rifle: A Link in the Repeating

Rifle Chain, GUNS.COM (Apr. 3, 2012 5:44 PM),

https://perma.cc/6FLX-AE5G (“experts believe that Bennett &

Havilland made fewer than 10 full-scale” rifles); Ian

McCollum, RIA: Porter Turret Rifle, FORGOTTEN WEAPONS

BLOG (Feb. 7, 2016), https://perma.cc/N5J5-R93H (only

“several thousand examples” of the Porter rifle were made);

Norm Flayderman, Flayderman’s Guide to Antique American

Firearms and their Values 713 (9th ed. 2007) (noting an

unknown quantity were made and the rifle is “[v]ery rare”).

The other antebellum firearms Hanson identifies — the

Enouy Ferris wheel revolver, the Jarre harmonica pistol, and

pin-fire revolvers — all have similar limitations. None was

ever in common use — indeed, the Enouy Ferris wheel

revolver may have been a one-off curiosity. Dan Zimmerman,

Is the 48-Shot Enouy the Most Unusual Revolver in History?,

THE TRUTH ABOUT GUNS (Oct. 18, 2015),

https://perma.cc/6FW9-J27J (noting “[t]here are no records of

it ever being manufactured or sold commercially”). Those that

were capable of firing more than six shots tended to be

cumbersome and unwieldy, limiting their potential lethality.

45

Lewis Winant, Firearms Curiosa 207 (Greenberg 1955) (1954)

(depicting the Ferris wheel revolver). Although one version of

the Jarre harmonica pistol did have a detachable magazine, it

still required the hammer to be cocked before firing each round,

id. at 244–45, and “[t]he particularly awkward design of the

pinfire cartridge made it difficult to deploy in a repeating pis-

tol.” Unique Handgun Detail, THE HANDGUN INFORMATION

RESOURCE (2024), https://perma.cc/6PVH-LWDD.

Hanson’s next example, the Josselyn belt-fed chain pistol

(patented in 1866), was likewise unwieldy and was likely never

in common use. As with the Colt revolver, the need to cock

the hammer before firing each round limited the rate of fire and

therefore the potential lethality of the weapon. Chain Guns—

I, FIREARMS HISTORY, TECHNOLOGY & DEVELOPMENT BLOG

(July 23, 2014 1:35 AM), https://perma.cc/MT7P-JP5L.

46

Improvement in Revolving Fire-Arms, U.S. Patent No. 52,248

(issued Jan. 24, 1866).

Hanson also argues the Winchester Repeater rifle of 1866

is analogous to an ELCM. Although it had a magazine capable

of firing more than ten rounds without reloading, it required

manual manipulation of a lever in between each shot. Ryan

Hodges, The 1866 Rifle, TAYLOR’S & COMPANY (Aug. 26,

2020), https://perma.cc/7STW-8WMS. The magazine was

also exposed, which made it susceptible to jamming. Id. For

this reason, the rifle lacks the potential lethality of a modern

weapon equipped with an ELCM.

WALKER, Circuit Judge, dissenting:

In District of Columbia v. Heller, the Supreme Court held

that the government cannot categorically ban an arm in

common use for lawful purposes. Magazines holding more

than ten rounds of ammunition are arms in common use for

lawful purposes. Therefore, the government cannot ban them.

I. Background

In 2003, Dick Heller and five other plaintiffs alleged that

the District of Columbia’s ban on handguns violated their

Second Amendment right to “keep and bear Arms.”1 Five

years later, the Supreme Court agreed.2 It held D.C.’s law

unconstitutional because the law banned an arm “in common

use” for lawful purposes.3

A month after Heller’s victory, he returned to federal

court.4 This time, in Heller II, he challenged D.C.’s felony

prohibition on possessing what D.C. calls a “large capacity

ammunition feeding device” — defined as “a magazine, belt,

1

U.S. Const. amend. II.

2

District of Columbia v. Heller, 554 U.S. 570, 635-36 (2008).

3

Id. at 624, 627 (cleaned up); see also id. at 629.

When I refer to a ban on arms in common use for lawful purposes,

I mean a complete ban that covers everyone, everywhere — not, for

example, targeted “prohibitions on the possession of firearms by

felons and the mentally ill, or laws forbidding the carrying of

firearms in sensitive places such as schools and government

buildings, or laws imposing conditions and qualifications on the

commercial sale of arms,” id. at 626-27, or “prohibitions on carrying

concealed weapons,” id. at 626, or the disarming of individuals who

pose “a credible threat to the physical safety of others,” United States

v. Rahimi, No. 22-915, 602 U.S. ___, slip op. at 15 (June 21, 2024).

4

Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)

(Heller II).

2

drum, feed strip, or similar device that has a capacity of, or that

can be readily restored or converted to accept, more than 10

rounds of ammunition.”5 D.C.’s ban on these plus-ten

magazines is categorical; it extends to every purpose (even

self-defense) and to every location (even inside the home).6

Heller lost his second suit before a divided panel of this

court. It upheld D.C.’s ban on plus-ten magazines because the

ban was substantially related to an important government

interest.7 But this court’s decision in Heller II was effectively

overruled in New York State Rifle & Pistol Association, Inc. v.

Bruen.8 There, the Supreme Court reaffirmed its holding in

Heller I and repudiated “means-end scrutiny in the Second

Amendment context.”9

5

D.C. Code § 7-2506.01(b) (2009); see Heller II, 670 F.3d at 1249.

Heller II also included challenges to D.C.’s ban on semi-automatic

rifles and its gun registration and licensing requirements. 670 F.3d

at 1248-49.

6

The prohibited magazines are neither unusually “large,” D.C. Code

§ 7-2506.01(b) (2013), nor “extra-large,” Majority Op. at 5. See

infra Part III.A. So I will simply call them “plus-ten magazines.”

Cf. Duncan v. Bonta, 19 F.4th 1087, 1140 n.1 (9th Cir. 2021)

(Duncan II) (en banc) (Bumatay, J., dissenting) (“we would be more

correct to refer to” plus-ten magazines as “standard-capacity

magazines,” rather than “large-capacity magazine[s]” (cleaned up)),

cert. granted, judgment vacated, and remanded, 142 S. Ct. 2895

(2022), and vacated and remanded by Duncan v. Bonta, 49 F.4th

1228 (9th Cir. 2022).

7

Heller II, 670 F.3d at 1263-64; cf. Heller v. District of Columbia,

801 F.3d 264, 274-80 (D.C. Cir. 2015) (Heller III) (applying means-

end scrutiny to D.C.’s gun registration regime).

8

142 S. Ct. 2111 (2022).

9

Id. at 2127; see id. at 2125-27.

3

After Bruen, Andrew Hanson and three other D.C.

residents filed this suit. They own handguns, as well as

magazines that hold up to 17 rounds of ammunition. Because

of D.C.’s ban on plus-ten magazines, they must store those

magazines outside of D.C., away from their homes.

These gun owners sought a permanent injunction and a

declaration that D.C.’s ban is unconstitutional.

Simultaneously, they requested a preliminary injunction

permitting them to keep their up-to-17-round magazines with

their handguns in D.C. while this suit proceeded.

The district court found that the gun owners were not

likely to succeed on the merits.10 So it denied the preliminary

injunction without assessing any other equitable factors.11 The

gun owners appealed, requesting a preliminary or permanent

injunction.

Because the district court’s decision depended entirely on

a legal conclusion — that the government can categorically

ban an arm in common use for lawful purposes — review is de

novo.12

10

Hanson v. District of Columbia, 671 F. Supp. 3d 1, 3 (D.D.C.

2023).

11

Id.; see Winter v. Natural Resources Defense Council, Inc., 555

U.S. 7, 20 (2008) (a party seeking a preliminary injunction must

show that (1) “he is likely to succeed on the merits,” (2) “he is likely

to suffer irreparable harm in the absence of preliminary relief,”

(3) “the balance of equities tips in his favor,” and (4) “an injunction

is in the public interest”).

12

Huisha-Huisha v. Mayorkas, 27 F.4th 718, 726 (D.C. Cir. 2022).

4

II. The Government Cannot Ban Arms in Common Use

for Lawful Purposes

The Second Amendment guarantees law-abiding citizens

a right against categorical bans of an arm in common use for

lawful purposes. What follows is the story of how the Supreme

Court came to affirm that right — and then reaffirm it over and

over and over again.

A. Text and History

I begin with a much-abbreviated version of the history that

informs the Second Amendment.13 My hope here is to provide

any readers new to this topic with a prologue to the Supreme

Court’s Second Amendment jurisprudence. Later, I’ll explain

why that jurisprudence holds that the government cannot ban

an arm in common use for lawful purposes.

1. The English Bill of Rights and Colonial History

(1689-1775)

In the 1660s, Britain’s Stuart king began to disarm

Protestants and other politically disfavored subjects.14 After

the Stuarts’ ouster and exile in 1688, King William and Queen

Mary assented to a parliamentary declaration that became the

13

Some of the finest judges in the country have written detailed

accounts of that history, which I commend to the interested reader.

The most recent example is Judge Richardson’s excellent dissent in

Bianchi v. Brown, No. 21-1255, 111 F.4th __, slip op. at 85-183 (4th

Cir. Aug. 6, 2024) (en banc). Others are cited throughout this

opinion.

14

Heller, 554 U.S. at 592-93.

5

1689 English Bill of Rights.15 It “explicitly protected a right to

keep arms for self-defense.”16

“As English subjects,” American “colonists considered

themselves to be vested with the same fundamental rights as

other Englishmen.”17 That included the “right of self-

preservation” to “repel force by force.”18 So when King

George III tried “to disarm the colonists just as the Stuarts

attempted to disarm Protestants,” his attempts “provoked

polemical reactions by Americans invoking their rights as

Englishmen to keep arms.”19

Then, in 1775, the “spark that ignited the American

Revolution was struck at Lexington and Concord, when the

15

Id. at 593; Duncan v. Becerra, 970 F.3d 1133, 1144 (9th Cir. 2020)

(Duncan I) (panel), reh’g en banc granted, opinion vacated, 988 F.3d

1209 (9th Cir. 2021), and on reh’g en banc sub nom. Duncan II, 19

F.4th 1087.

16

McDonald v. City of Chicago, 561 U.S. 742, 768 (2010); see also

1 W. & M., ch. 2 (1689) (“That the Subjects which are Protestants,

may have Arms for their Defence suitable to their Conditions, and as

allowed by Law.”), in 6 Statutes of the Realm at 143.

In a reversal of the Stuart Era, the English Bill of Rights extended

gun rights only to Protestants. But by 1765, though anti-Catholic

politics and prejudice persisted, “the right to keep and bear arms was

one of the fundamental rights of Englishmen.” McDonald, 561 U.S.

at 768 (cleaned up) (noting that Blackstone recognized this

fundamental right in 1765).

17

McDonald, 561 U.S. at 816 (Thomas, J., concurring in part and

concurring in the judgment).

18

Heller, 554 U.S. at 595 (cleaned up) (citing 1 William Blackstone,

Commentaries at *145 n.42 (1803) (notes of St. George Tucker)).

19

First quoting Duncan I, 970 F.3d at 1153; then quoting McDonald,

561 U.S. at 768 (cleaned up).

6

British governor dispatched soldiers to seize the local farmers’

arms and powder stores.”20

2. The Second Amendment, State-Constitution Analogues,

and the “Palladium of the Liberties of a Republic”

(1775-1833)

The American Revolution led to Western Civilization’s

“seminal era of constitution writing.”21 The thirteen states

“created the first thirteen constitutions in this country, indeed

many of the first constitutions in the world.”22 Almost

immediately, four of them guaranteed gun rights.23

By 1787, the nation was debating whether to ratify the

United States Constitution, proposed by that summer’s

Philadelphia Convention.24 In that debate, “the fear that the

Federal Government would disarm the people in order to

impose rule through a standing army or select militia was

pervasive in Antifederalist rhetoric.”25 “In response, the

Federalists agreed to include a Bill of Rights, which, of course,

20

Rahimi, slip op. at 5; Duncan I, 970 F.3d at 1153.

21

Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making

of American Constitutional Law 11 (2018).

22

Id. at 10.

23

Heller, 554 U.S. at 600-02; see also McDonald, 561 U.S. at 769.

24

Heller, 554 U.S. at 598-99 (discussing ratification debates).

25

Id. (citing Letters from The Federal Farmer III (Oct. 10, 1787), in

2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981), and

2 Documentary History of the Ratification of the Constitution 508-

09 (M. Jensen ed. 1976) (comments of John Smilie at the

Pennsylvania ratifying convention)).

7

featured the right to bear arms.”26 Its 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.27

In the three decades that followed ratification of the Bill of

Rights, nine more states guaranteed gun rights in their

constitutions.28 After that, as new states joined the Union,

many of their constitutions made similar guarantees.29 They

reflected what Joseph Story observed in 1833: “The right of the

26

Duncan I, 970 F.3d at 1144.

27

U.S. Const. amend. II.

28

See McDonald, 561 U.S. at 769.

29

See, e.g., An Act to Provide for the Due Execution of the Laws of

the United States Within the State of Michigan, ch. 239, sec. 1, 5 Stat

61, 61 (1836) (applying United States law to Michigan); An Act to

Admit the State of Michigan into the Union, upon an Equal Footing

with the Original States, ch. 6, sec. 1, 5 Stat. 144, 144 (1837)

(formally admitting Michigan as a state); Mich. Const. of 1835, art. I,

§ 13 (“right to bear arms”); An Act for the Admission of the State of

Arkansas into the Union, and to Provide for the Due Execution of the

Laws of the United States, Within the Same, and for Other Purposes,

ch. 100, secs. 1 & 3, 5 Stat. 50, 50-51 (1836) (admitting Arkansas);

Ark. Const. of 1836, art. II, § 21 (“right to keep and to bear arms”);

An Act to Extend the Laws of the United States over the State of

Texas, and for Other Purposes, ch. 1, sec. 1, 6 Stat. 1, 1 (1845)

(annexing Texas); Tex. Const. of 1845, art. I, § 13 (“right to keep

and bear arms”); An Act for the Admission of Iowa and Florida into

the Union, ch. 48, sec. 1, 6 Stat. 742, 742 (1845) (admitting Florida);

An Act Supplemental to the Act for the Admission of Florida and

Iowa into the Union, and for Other Purposes, ch. 75, sec. 2, 6 Stat.

788, 788 (1845) (formally applying United States law to Florida);

Fla. Const. of 1838, art. I, § 21 (“right to keep and to bear arms”).

8

citizens to keep and bear arms has justly been considered, as

the palladium of the liberties of a republic . . . .”30

3. The Fourteenth Amendment

(1868)

Just as guns were often the difference between life and

death for “the remote settler” who needed “to defend himself

and his family against hostile Indian tribes and outlaws, wolves

and bears,”31 guns were often the only defense for African-

Americans against night riders and lynch mobs after the Civil

War.32 So when states “of the old Confederacy” engaged in

“systematic efforts . . . to disarm” recently freed slaves and

“many of the over 180,000 African-Americans who served in

the Union Army,” Congress passed the Freedmen’s Bureau Act

30

3 Joseph Story, Commentaries on the Constitution of the United

States § 1890, at 746 (1833); see also McDonald, 561 U.S. at 769-

70 (citing “Founding-era legal commentators” including Joseph

Story, St. George Tucker, and William Rawle).

31

Oral Arg. Tr. at 8 (comment of Kennedy, J.), District of Columbia

v. Heller, 554 U.S. 570 (2008) (No. 07-290), 2008 WL 731297.

32

McDonald, 561 U.S. at 855-58 (Thomas, J., concurring in part and

concurring in the judgment); see also Duncan I, 970 F.3d at 1154

(The NAACP’s co-founder once wrote of a year plagued by racial

lynchings in the late nineteenth century, “the only case where the

proposed lynching did not occur, was where the men armed

themselves . . . and prevented it. The only times an Afro-American

who was assaulted [and] got away has been when he had a gun and

used it in self-defense.” (quoting Ida B. Wells, Southern Horrors and

Other Writings: The Anti-Lynching Campaign of Ida B. Wells, 1892-

1900, at 70 (Jacqueline Jones Royster ed., 1997))).

9

of 1866.33 It guaranteed “the constitutional right to bear arms”

to all citizens “without respect to race or color.”34

That same year, Congress enacted the Civil Rights Act.35

Its “principal proponents . . . meant to end the disarmament of

African-Americans in the South.”36 Then, “to provide a

constitutional basis for protecting the rights set out in the Civil

Rights Act of 1866,” Congress passed and the states ratified the

Fourteenth Amendment.37 Its first section provides:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.38

4. Takeaways from the Second Amendment’s Text and

History

D.C. has offered no reason to doubt that throughout all of

this history, no federal or state legislature enacted a blanket ban

on a gun in common use for lawful purposes. Yes, there could

33

McDonald, 561 U.S. at 771.

34

Ch. 200, § 14, 14 Stat. 173, 176-177 (1866).

35

Ch. 31, 14 Stat. 27 (1866).

36

McDonald, 561 U.S. at 774 n.23.

37

Id. at 775.

38

U.S. Const. amend. 14 § 1; see also id. § 5 (granting Congress

enforcement power).

10

be limits on who possesses a gun.39 Yes, there could be limits

on where and how you carry a gun.40 And yes, there could be

limits on owning and carrying unusual guns.41 But D.C. has

failed to identify any categorical ban on a gun in common use

for lawful purposes in the first century of our nation’s history.42

B. Supreme Court Precedents

The Supreme Court’s first notable application of the

Second Amendment did not occur until 1939 — when it

distinguished unusual weapons from those in common use.43

And its first extensive consideration of the Amendment’s

meaning did not come until 2008 — when it relied on this

distinction to hold that the government cannot completely ban

an arm in common use for lawful purposes. In the 16 years

since then, the Court has invariably reaffirmed that principle.

39

Rahimi, slip op. at 10-13 (citing Founding-era “regulations

targeting individuals who physically threatened others”).

40

Bruen, 142 S. Ct. at 2133 (citing examples of “sensitive places”

where weapons were historically prohibited).

41

Heller, 554 U.S. at 627 (explaining that there is an “historical

tradition of prohibiting the carrying of dangerous and unusual

weapons” (cleaned up)).

42

See Bruen, 142 S. Ct. at 2126 (it is the government’s burden to

“demonstrate that [its] regulation is consistent with this Nation’s

historical tradition of firearm regulation”).

43

“For most of our history, the Bill of Rights was not thought

applicable to the States, and the Federal Government did not

significantly regulate the possession of firearms by law-abiding

citizens.” Heller, 554 U.S. at 625.

11

1. United States v. Miller

(1939)

In 1934, Congress enacted the National Firearms

Act — the first significant federal gun law.44 It regulated a

special class of unusual firearms.45 This class included fully

automatic machine guns, sawed-off shotguns, and short-

barreled rifles.46

The National Firearms Act required pre-existing owners to

register those firearms.47 It also compelled sellers and

transferors to pay special taxes.48 So obtaining a covered arm

became expensive, but not illegal.

The Supreme Court upheld the National Firearms Act in

United States v. Miller.49 There, “two washed-up Oklahoma

bank robbers” had been charged with transporting an

unregistered sawed-off shotgun in interstate commerce.50 The

44

National Firearms Act, Pub. L. No. 73-474, 48 Stat. 1236 (1934).

45

Id. § 1(a), 48 Stat. at 1236.

46

Id.

Machine guns are automatic weapons. Id. § 1(b), 48 Stat. at 1236

(defining “machine gun”). They fire “repeatedly with a single pull

of the trigger. That is, once its trigger is depressed, the weapon will

automatically continue to fire until its trigger is released or the

ammunition is exhausted.” Staples v. United States, 511 U.S. 600,

602 n.1 (1994).

47

National Firearms Act, § 5(a), 48 Stat. at 1238.

48

Id. §§ 2(a), 3(b), 48 Stat. at 1237.

49

307 U.S. 174, 183 (1939).

50

Brian L. Frye, The Peculiar Story of United States v. Miller, 3

N.Y.U. J.L. & Liberty 48, 48 (2008); see id. at 50 (describing how

Miller was a “test case arranged by the government and designed to

support the constitutionality of federal gun control”).

12

Court held that the Second Amendment does not protect “the

right to keep and bear such an instrument.”51

In explaining why, Miller referred to Founding-Era

history. It observed that men called to serve in the militia

“were expected to appear bearing arms supplied by themselves

and of the kind in common use at the time.”52 Therefore, in the

Court’s view, the Second Amendment did not protect the

weapon at issue in Miller, which was unusual at the time of the

bank robbers’ arrest.53

The Supreme Court has since “read Miller to say only that

the Second Amendment does not protect those weapons not

typically possessed by law-abiding citizens for lawful

purposes,”54 explaining (this time without the multiple

negatives) that “Miller said . . . the sorts of weapons protected

were those in common use at the time.”55

2. Staples v. United States

(1994)

Five and a half decades after Miller, the Supreme Court

considered another case about the National Firearms

Act — Staples v. United States.56

51

Miller, 307 U.S. at 178.

52

Id. at 179 (emphasis added); see id. at 179-82 (citing state laws

requiring men to keep and bear commonly used firearms for militia

service).

53

Id. at 178.

54

Heller, 554 U.S. at 625; see also id. at 623 (Miller recognizes that

“the Second Amendment right, whatever its nature, extends only to

certain types of weapons”).

55

Id. at 627 (cleaned up).

56

511 U.S. 600 (1994).

13

Staples reversed a conviction under the National Firearms

Act for possession of an unregistered fully automatic machine

gun.57 The Court held that the government must (and did not)

prove the defendant knew his AR-15 rifle had been converted

to enable automatic fire.58 That’s because most modern guns

are “so commonplace and generally available” that a defendant

cannot be considered “on notice” of likely regulation just

because a gun is dangerous.59

Consistent with Miller, Staples contrasted guns like a

semiautomatic AR-15 rifle that “traditionally have been widely

accepted as lawful possessions” with “certain categories” of

unusual guns like fully automatic “machineguns, sawed-off

shotguns, and artillery pieces.”60 So even though Staples was

not a constitutional decision, it confirmed a principle that

would matter in future cases about the Second Amendment:

Arms in common use for lawful purposes are legally distinct

from unusual, “quasi-suspect” arms.61

3. District of Columbia v. Heller

(2008)

D.C. has long been an anti-gun outlier in a nation where,

as Staples said, guns are “widely accepted as lawful

possessions.”62 By 1976, D.C. had “banned all handgun

57

Id. at 602.

58

Id. at 603, 619.

59

Id. at 611.

60

Id. at 611-12.

61

See Heller II, 670 F.3d at 1288 (Kavanaugh, J., dissenting)

(cleaned up).

62

Staples, 511 U.S. at 612; see id. at 611-12.

14

possession.”63 That ban was challenged by Dick Heller in a

suit decided by the Supreme Court in 2008.64

During the litigation in Heller, D.C. made a series of

arguments designed to render the Second Amendment a dead

letter. For starters, D.C. argued that the Second Amendment

does not “entitle[ ] individuals to have guns for their own

private purposes.”65 Next, D.C. argued that there’s no right to

handguns when “the District allows residents to keep rifles and

shotguns.”66 Finally, D.C. argued that its “predictive judgment

about how best to reduce gun violence was reasonable” and

“entitled to substantial deference.”67

In District of Columbia v. Heller, the Supreme Court

rejected every one of D.C.’s arguments.68 In so doing, it made

four increasingly specific holdings. Each was dependent on the

holding before it.

Heller’s first holding was its broadest: As a general

matter, the Second Amendment guarantees an “individual

right” to possess and carry “arms,” though that right is “not

unlimited.”69

63

Wrenn v. District of Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017)

(citing D.C. Code § 7-2502.01(a), 7-2502.02(a)(4)).

64

Heller, 554 U.S. at 574-76.

65

Petitioner Br. at 8, Heller, 554 U.S. at 570 (No. 07-290), 2008 WL

102223.

66

Id. at 10; see id. at 48, 54-55.

67

Id. at 11.

68

See 554 U.S. 570, 628-29, 629, 634-36 (2008).

69

Id. at 579-81, 581-92, 626-28.

15

Heller’s second holding concerned how to discover the

Second Amendment’s limits: Courts must rely “on the

historical understanding of the Amendment to demark the

limits on the exercise of that right.”70 This historical approach

led Heller to distinguish D.C.’s law from “longstanding

prohibitions on the possession of firearms by felons and the

mentally ill, or laws forbidding the carrying of firearms in

sensitive places such as schools and government buildings, or

laws imposing conditions and qualifications on the commercial

sale of arms.”71 Heller thus “exemplifies” a “straightforward

historical inquiry.”72

In adopting this historical approach, “Heller decline[d] to

engage in means-end scrutiny generally” and “specifically

ruled out the intermediate-scrutiny test.”73 The Court

explained:

We know of no other enumerated constitutional right

whose core protection has been subjected to a

freestanding “interest-balancing” approach. The very

enumeration of the right takes out of the hands of

government — even the Third Branch of

Government — the power to decide on a case-by-case

basis whether the right is really worth insisting

upon.74

70

Bruen, 142 S. Ct. at 2128 (describing Heller).

71

Heller, 554 U.S. at 626-27.

72

Bruen, 142 S. Ct. at 2131.

73

Id. at 2129.

74

Heller, 554 U.S. at 634; see also id. (“A constitutional guarantee

subject to future judges’ assessments of its usefulness is no

constitutional guarantee at all.”); id. at 635 (“Like the First, [the

Second Amendment] is the very product of an interest balancing by

the people . . . .”).

16

Heller then applied that “straightforward historical

inquiry”75 to reach its third holding: Whereas the United

States has a “historical tradition of prohibiting the carrying of

‘dangerous and unusual weapons,’ there is no historical

tradition of banning arms ‘in common use.’”76 So arms “in

common use” are “protected,” and “a complete prohibition of

their use is invalid.”77

Heller’s third holding confirmed the same critical

distinction on which Miller had relied in 1939 — the

distinction between “unusual” weapons versus weapons “in

common use” for lawful purposes.78 That distinction

“dovetailed with the historical practice of the militia bringing

‘the sorts of lawful weapons that they possessed at home to

75

Bruen, 142 S. Ct. at 2131 (describing Heller).

76

Heller, 554 U.S. at 627 (quoting Miller, 307 U.S. at 179) (cleaned

up).

77

Id. at 624, 627, 629; see also Heller II, 670 F.3d at 1269

(Kavanaugh, J., dissenting) (Heller held that the government cannot

ban arms when “they have not traditionally been banned and are in

common use by law-abiding citizens.”); id. at 1271-72 (Kavanaugh,

J., dissenting) (“As to bans on categories of guns, the Heller Court

stated that the government may ban classes of guns that have been

banned in our ‘historical tradition’ — namely, guns that are

‘dangerous and unusual’ and thus are not the sorts of

lawful weapons that citizens typically possess at home.” (cleaned

up)); id. at 1272 (Kavanaugh, J., dissenting) (“The [Heller] Court

said that ‘dangerous and unusual weapons’ are equivalent to those

weapons not ‘in common use,’ as the latter phrase was used in United

States v. Miller.”).

78

Heller, 554 U.S. at 623-25; supra Part II.B.1 (discussing Miller).

17

militia duty’; i.e., weapons that were ‘in common use at the

time.’”79

From there, Heller reached its fourth and final holding:

Because handguns are in common use today, law-abiding

citizens have a Second Amendment right to keep them in their

homes for self-defense.80 It didn’t matter whether D.C.

residents could already keep other guns — it only mattered that

handguns are in common use.81 Nor did it matter whether

handguns were once unusual — it only mattered that they are

common now.82

Heller explained time and again that this fourth holding (a

right to handguns) depended on its third holding (a right to

possess arms “in common use” for lawful purposes):

 “It is enough to note, as we have observed, that the

American people have considered the handgun to be the

quintessential self-defense weapon.”83

79

Mark W. Smith, What Part of “In Common Use” Don't You

Understand?: How Courts Have Defied Heller in Arms-Ban

Cases — Again, Harv. J.L. & Pub. Pol’y Per Curiam, No. 41, at 4

(2023) (“Smith, How Courts Have Defied Heller”) (quoting Heller,

554 U.S. at 627).

80

Heller, 554 U.S. at 628-29; see also Bruen, 142 S. Ct. at 2143

(discussing Heller).

81

Heller, 554 U.S. at 629.

82

See id. at 582 (“the Second Amendment extends, prima facie, to

all instruments that constitute bearable arms, even those that were

not in existence at the time of the founding”).

83

Id. at 629.

18

 “The handgun ban amounts to a prohibition of an entire

class of ‘arms’ that is overwhelmingly chosen by

American society for that lawful purpose.”84

 “Whatever the reason, handguns are the most popular

weapon chosen by Americans for self-defense in the

home, and a complete prohibition of their use is

invalid.”85

 “Under any of the standards of scrutiny that we have

applied to enumerated constitutional rights, banning

from the home the most preferred firearm in the nation

to keep and use for protection of one’s home and family

would fail constitutional muster.”86

In other words, Heller did not simply hold that the Second

Amendment is an individual right, then add a lot of dicta, and

then finally hold that D.C. cannot ban handguns. What came

between Heller’s first and last holdings is binding on lower

courts, because each of Heller’s four increasingly specific

holdings is dependent on the holding before it:

1) There is, in general, an individual right to keep and

bear arms;

2) Exceptions to that right depend on the history and

tradition of gun regulations;

3) There is no history and tradition of banning arms in

common use for lawful purposes; and

4) Handguns cannot be categorically banned precisely

because they are in common use for lawful purposes.

84

Id. at 628.

85

Id. at 629.

86

Id. at 628-29 (cleaned up).

19

Of course, Heller did not ignore “the problem of handgun

violence in this country.”87 It took “seriously the concerns” of

those “who believe that prohibition of handgun ownership is a

solution.”88 But the Court was bound by the Second

Amendment’s command that the government may not ban arms

in common use for lawful purposes — whether good policy or

not. As this court later recognized: “Heller I closed off the

possibility” that we could “find some benefits weighty enough

to justify other effective bans on the right to keep common

arms.”89

4. McDonald v. City of Chicago

(2010)

Two years after Heller, in McDonald v. City of Chicago,

the Supreme Court confirmed that because of the Fourteenth

Amendment, “the Second Amendment right is fully applicable

to the States.”90 McDonald explained that “the right to keep

and bear arms is fundamental to our scheme of ordered

liberty.”91 It is “‘deeply rooted in this Nation’s history and

tradition.’”92

87

Id. at 636.

88

Id.

89

Wrenn, 864 F.3d at 665. But see Bianchi, slip op. at 64 (“Imagine,

then, living through these recent tragedies. Imagine the sense of loss

that afflicts not only the moment, but the lifetimes of those families

and friends affected. And then imagine that you mobilize and lobby

your representatives to pass preventative legislation, only to be told

by a court that your Constitution renders you powerless to save

others from your family’s fate.” (emphasis omitted)).

90

561 U.S. 742, 750 (2010).

91

Id. at 767 (emphasis omitted).

92

Id. at 768 (quoting Washington v. Glucksberg, 521 U.S. 702, 721

(1997)).

20

At the same time, “McDonald underscore[d] that text,

history, and tradition guide analysis of gun laws and

regulations.”93 It confirmed that exceptions to the general right

to keep and bear arms depend on “longstanding regulatory

measures,” not “judicial interest balancing,” which Heller had

“expressly rejected.”94 And like Heller, it held that “citizens

must be permitted to use handguns for the core lawful purpose

of self-defense” because handguns “are the most preferred

firearm in the nation to keep and use for protection of one’s

home and family.”95

In McDonald, the Supreme Court had a chance to back

away from Heller’s holdings. Instead, it doubled down.

5. “Defiance” of Heller

(2010-2022)

With Heller and McDonald, the Supreme Court left little

doubt about the validity of severe gun-control regimes. But

revanchist legislatures responded with “defiance.”96

D.C. led the way. After its ban on keeping handguns was

held unconstitutional, it followed “with a ban on carrying.”97

“And when that was struck down,” D.C. confined “carrying a

93

Heller II, 670 F.3d at 1278 (Kavanaugh, J., dissenting).

94

McDonald, 561 U.S. at 785-86 (plurality); see also id. at 803

(Scalia, J., concurring) (“traditional, historically focused method”).

95

Id. at 767-68 (cleaned up).

96

Silvester v. Becerra, 138 S. Ct. 945, 951 (2018) (Thomas, J.,

dissenting from denial of certiorari); cf. Cooper v. Aaron, 358 U.S.

1, 17 (1958) (“we should answer the premise of the actions of the

Governor and Legislature that they are not bound by our holding in

the Brown case”).

97

Wrenn, 864 F.3d at 655 (citing D.C. Code § 22-4504).

21

handgun in public to those with a special need for self-

defense.”98 D.C. then lost in court again, this time after

arguing that the Second Amendment’s “core does not cover

public carrying at all.”99

D.C.’s unveiled contempt for Heller and McDonald was

not unique. For example, the Massachusetts Supreme Judicial

Court held that the Second Amendment does not protect stun

guns100 — a decision that the unanimous Supreme Court

summarily reversed in Caetano v. Massachusetts.101 With a

terse, two-page opinion, the Court dispensed with the state

court’s thin reasoning as patently “inconsistent” with the

“clear” holdings of Heller and McDonald.102

Caetano put lower courts on notice: Exceptions to gun

rights under the Second Amendment depend on a historical

tradition of analogous regulations, and there is no historical

tradition of banning arms in common use for lawful purposes.

Many state courts did not get the memo. Nor did some

federal circuit courts.

98

Id. (citing Palmer v. District of Columbia, 59 F. Supp. 3d 173

(D.D.C. 2014) and D.C. Code § 22-4506(a)-(b)).

99

Id. at 657.

100

Commonwealth v. Caetano, 26 N.E.3d 688, 692-94 (Mass. 2015).

101

577 U.S. 411, 412 (2016).

102

Id. at 412; see id. at 411-12 (swiftly rejecting each of the state

court’s three rationales for its holding, which were that (1) stun guns

“were not in common use at the time of the Second Amendment’s

enactment,” (2) stun guns are “unusual” because they are “a

thoroughly modern invention,” and (3) stun guns are not “readily

adaptable to use in the military” (cleaned up)).

22

In particular, several federal circuits devised “a ‘two-step’

framework for analyzing Second Amendment challenges that

combines history with means-end scrutiny.”103 That approach

was “policy by another name,” and it “eviscerate[d] many of

the protections recognized in Heller and McDonald.”104 In the

Ninth Circuit, for example, the government at one point

enjoyed an “‘undefeated, 50–0 record’” against Second

Amendment challenges.105

Meanwhile, a number of Supreme Court justices raised the

alarm:

 Justice Thomas (joined by Justice Scalia) lamented that

“[d]espite the clarity with which we described the Second

Amendment’s core protection for the right of self-defense,

lower courts . . . have failed to protect it.”106

 Justice Thomas (again joined by Justice Scalia) criticized

lower courts’ “crabbed reading of Heller” and

103

Bruen, 142 S. Ct. at 2125; see id. at 2125-27 & n.4 (citing cases).

104

First quoting Rahimi, slip op. at 18 (Kavanaugh, J., concurring);

then quoting Friedman v. City of Highland Park, 577 U.S. 1039,

1041 (2015) (Friedman II) (Thomas, J., dissenting from denial of

certiorari). Because I later refer to the Seventh Circuit opinion with

the same caption, I will cite this one as Friedman II.

105

Rahimi, slip op. at 5 (Gorsuch, J., concurring) (quoting Duncan II,

19 F.4th at 1167 n.8 (VanDyke, J., dissenting)); see also Bruen, 142

S. Ct. at 2131 (“If the last decade of Second Amendment litigation

has taught this Court anything, it is that federal courts tasked with

making such difficult empirical judgments regarding firearm

regulations under the banner of ‘intermediate scrutiny’ often defer to

the determinations of legislatures.”).

106

Jackson v. City and County of San Francisco, 135 S. Ct. 2799,

2799 (2015) (Thomas, J., dissenting from denial of certiorari).

23

“noncompliance with our Second Amendment

precedents.”107

 Justice Thomas said that “lower courts are resisting this

Court’s decisions in Heller and McDonald and are failing

to protect the Second Amendment to the same extent that

they protect other constitutional rights.”108

 Justice Alito (joined by Justice Thomas) criticized lower-

court “reasoning” that “defies our decision in Heller.”109

 Justice Alito (joined by Justice Gorsuch) expressed

“concern” about “the way Heller has been treated in the

lower courts.”110

 Justice Kavanaugh shared a similar “concern that some

federal and state courts may not be properly applying

Heller and McDonald.”111

 Justice Thomas (joined by Justice Kavanaugh) again

accused the lower courts of “blatant defiance,” explaining

that means-end scrutiny was “entirely inconsistent with

Heller” and “appear[ed] to be entirely made up.” 112

These five justices did not chastise lower courts only for

ignoring Heller’s holding that history and tradition alone

107

Friedman II, 577 U.S. at 1039, 1041 (Thomas, J., dissenting from

denial of certiorari).

108

Silvester, 138 S. Ct. at 950 (Thomas, J., dissenting from denial of

certiorari).

109

Caetano, 577 U.S. at 414 (Alito, J., concurring in the judgment).

110

New York State Rifle & Pistol Association v. City of New York,

140 S. Ct. 1525, 1544 (2020) (Alito, J., dissenting).

111

Id. at 1527 (Kavanaugh, J., concurring).

112

Rogers v. Grewal, 140 S. Ct. 1865, 1867 (2020) (Thomas, J.,

dissenting from denial of certiorari).

24

determine exceptions to the Second Amendment’s textual

baseline. They also chided lower courts for ignoring Heller’s

more specific holding — that there is no historical tradition of

categorical bans on arms “in common use” for lawful

purposes.113

Consider, for example, Friedman v. City of Highland

Park.114 The Court declined to take up a challenge to a city ban

on “many of the most commonly owned” semiautomatic rifles

and the plus-ten magazines commonly used with them.115

Justice Thomas dissented from the denial of certiorari, joined

by Justice Scalia. He explained that Heller and McDonald do

not allow “categorical bans on firearms that millions of

Americans commonly own for lawful purposes,”116 repeatedly

underscoring Heller’s third holding about arms in common use:

 “Heller asks whether the law bans types of firearms

commonly used for a lawful purpose — regardless of

whether alternatives exist.”117

 “Heller draws a distinction between such firearms [in

common use for a lawful purpose] and weapons specially

adapted to unlawful uses and not in common use, such as

sawed-off shotguns.”118

113

Heller, 554 U.S. at 627.

114

577 U.S. 1039, 1039 (2015) (Thomas, J., dissenting from denial

of certiorari).

115

Id. at 1039 (Thomas, J., dissenting from denial of certiorari).

116

Id. (Thomas, J., dissenting from denial of certiorari).

117

Id. at 1042 (Thomas, J., dissenting from denial of certiorari).

118

Id. (Thomas, J., dissenting from denial of certiorari).

25

 Heller and McDonald “excluded from [Second

Amendment] protection only those weapons not typically

possessed by law-abiding citizens for lawful purposes.”119

 “Roughly 5 million Americans own AR-style

semiautomatic rifles. The overwhelming majority of

citizens who own and use such rifles do so for lawful

purposes, including self-defense and target shooting.

Under our precedents, that is all that is needed for citizens

to have a right under the Second Amendment to keep such

weapons.”120

Consider also Caetano, the stun-gun case in which the

unanimous Supreme Court summarily reversed the

Massachusetts Supreme Judicial Court. There, Justice Alito

(joined by Justice Thomas) wrote separately to emphasize

Heller’s third holding about arms in common use:

 “[T]he pertinent Second Amendment inquiry is whether

[the arms] are commonly possessed by law-abiding

citizens for lawful purposes today.”121

 “A weapon may not be banned unless it is both dangerous

and unusual.”122

119

Id. at 1040 (Thomas, J., dissenting from denial of certiorari)

(cleaned up).

120

Id. at 1042 (Thomas, J., dissenting from denial of certiorari)

(emphasis added).

121

Caetano, 577 U.S. at 420 (Alito, J., concurring in the judgment)

(emphasis omitted).

122

Id. at 417 (Alito, J., concurring in the judgment).

26

 “[T]he relative dangerousness of a weapon is irrelevant

when the weapon belongs to a class of arms commonly

used for lawful purposes.”123

 “While less popular than handguns, stun guns are widely

owned and accepted as a legitimate means of self-defense

across the country. Massachusetts’ categorical ban of such

weapons therefore violates the Second Amendment.”124

Supreme Court justices were not alone in objecting to

lower courts’ “eviscerat[ion]” of Heller and McDonald.125 “A

chorus” of district judges and dissenting circuit judges echoed

them.126 One was then-Judge Kavanaugh.

123

Id. at 418 (Alito, J., concurring in the judgment) (emphasis

added).

124

Id. at 420 (Alito, J., concurring in the judgment) (emphasis

added); see id. (Alito, J., concurring in the judgment) (noting “that

hundreds of thousands of Tasers and stun guns have been sold to

private citizens, who it appears may lawfully possess them in 45

States” (cleaned up)).

125

Friedman II, 577 U.S. at 1041 (Thomas, J., dissenting from denial

of certiorari).

126

Duncan II, 19 F.4th at 1147 (Bumatay, J., dissenting, joined by

Ikuta and Nelson, JJ.) (citing Mai v. United States, 974 F.3d 1082,

1083 (9th Cir. 2020) (Collins, J., dissenting from the denial of reh’g

en banc)); id. at 1097 (VanDyke, J., dissenting from the denial of

reh’g en banc); Association of New Jersey Rifle & Pistol Clubs, Inc.

v. Attorney General of New Jersey, 910 F.3d 106, 126 (3d Cir. 2018)

(Bibas, J. dissenting); Mance v. Sessions, 896 F.3d 390, 394 (5th Cir.

2018) (Elrod, J., joined by Jones, Smith, Willett, Ho, Duncan, and

Engelhardt, JJ., dissenting from the denial of reh’g en banc); Tyler v.

Hillsdale Cnty. Sheriff’s Department, 837 F.3d 678, 702 (6th Cir.

2016) (Batchelder, J., concurring in most of the judgment); id. at 710

(Sutton, J., concurring in most of the judgment)).

27

Dissenting in Heller II, Judge Kavanaugh urged this court

to apply Heller I’s second and third holdings. He said, “Heller

and McDonald leave little doubt that courts are to assess gun

bans and regulations based on text, history, and tradition, not

by a balancing test such as strict or intermediate scrutiny.”127

And he added, “In Heller, the Supreme Court held that

handguns . . . are constitutionally protected because they have

not traditionally been banned and are in common use by law-

abiding citizens.”128

6. New York State Rifle & Pistol Association, Inc. v. Bruen

(2022)

In New York State Rifle & Pistol Association, Inc. v.

Bruen, the Supreme Court vindicated the chorus of circuit-

court dissenters, repudiated “means-end” scrutiny (again), and

(again) reaffirmed Heller’s second holding that “when the

Second Amendment’s plain text covers an individual’s

conduct,” exceptions to that right must be “consistent with this

Nation’s historical tradition of firearm regulation.”129

127

Heller II, 670 F.3d at 1271 (Kavanaugh, J., dissenting); see also

id. at 1272 (Kavanaugh, J., dissenting) (“The scope of the right is

thus determined by ‘historical justifications.’” (quoting Heller, 554

U.S. at 635)).

128

Id. at 1269 (Kavanaugh, J., dissenting) (emphasis added); see also

id. at 1288 (Kavanaugh, J., dissenting) (“the government may not

generally ban semi-automatic guns” because “semi-automatic

weapons ‘traditionally have been widely accepted as lawful

possessions’” (quoting Staples, 511 U.S. at 612)).

129

142 S. Ct. 2111, 2126-27 (2022); see also id. at 2131 (“The test

that we set forth in Heller and apply today requires courts to assess

whether modern firearms regulations are consistent with the Second

Amendment’s text and historical understanding.”); id. at 2128

(Heller “assessed the lawfulness of that handgun ban by scrutinizing

whether it comported with history and tradition”).

28

At the same time, Bruen gave lower courts additional

guidance about how to apply Heller’s history-and-tradition

test. As in other constitutional contexts, the burden is on the

government to justify regulations that are “presumptively

protect[ed].”130 And the government satisfies that burden only

if it can “identify a well-established and representative

historical analogue” within our country’s historical tradition.131

Bruen applied that history-and-tradition test to a New

York law that conditioned licenses to carry handguns “on a

citizen’s showing of” a “special need for self-defense.”132

Bruen needed to conduct its own historical inquiry

“because . . . Bruen did not involve an arms ban” and so “could

not be resolved by applying Heller’s rule” that the government

cannot ban arms in common use for lawful purposes. 133 The

Court considered the history and held that New York’s law was

not “consistent with the Second Amendment’s text and

historical understanding.”134

In addition, Bruen reaffirmed Heller’s third

holding — that, in view of our nation’s history and tradition,

the government cannot categorically ban a class of arms in

common use for lawful purposes: “[Heller] found it ‘fairly

supported by the historical tradition of prohibiting the carrying

of dangerous and unusual weapons’ that the Second

Amendment protects the possession and use of weapons that

are ‘in common use at the time.’”135 Heller’s “historical

130

Id. at 2129-30.

131

Id. at 2133 (emphasis omitted).

132

Id. at 2122.

133

Smith, How Courts Have Defied Heller, at 11 (emphasis omitted).

134

Bruen, 142 S. Ct. at 2131.

135

Id. at 2128 (quoting Heller, 554 U.S. at 627 (cleaned up)).

29

analysis sufficed to show that the Second Amendment did not

countenance a complete prohibition on the use of the most

popular weapon chosen by Americans for self-defense in the

home.”136

So in summary, Bruen:

 Confirmed Heller’s second holding, which established

the history-and-tradition test;

 Described how to apply Heller’s history-and-tradition

test to types of gun regulations that the Supreme Court

has not already considered;

 Held that there is no historical tradition analogous to

New York’s public-carry regulation — which was a

time-place-manner regulation, not a categorical ban

controlled by Heller’s third holding that the

government cannot ban arms “in common use” for

lawful purposes; and

 Reaffirmed that third holding of Heller.

7. United States v. Rahimi

(2024)

Just two years after Bruen, the Supreme Court returned to

the Second Amendment in United States v. Rahimi.137 It

reviewed a federal statute that “prohibits an individual subject

to a domestic violence restraining order from possessing a

firearm if that order includes a finding that he ‘represents a

136

Id. (cleaned up).

137

No. 22-915, 602 U.S. ___, slip op. (June 21, 2024).

30

credible threat to the physical safety of an intimate partner,’ or

a child of the partner or individual.”138

In Rahimi, the government proposed two traditional types

of laws to show that “the new law is relevantly similar to laws

that our tradition is understood to permit.”139 Because those

old laws (1) imposed burdens like the new law’s burdens for

reasons like the new law’s reasons, (2) were widespread, and

(3) were old enough to help illuminate the Second

Amendment’s original meaning, the Court upheld the new law.

It held that the nation’s “tradition of firearm regulation allows

the Government to disarm individuals who present a credible

threat to the physical safety of others.”140

In so doing, Rahimi “carefully buil[t] on Heller,

McDonald, and Bruen.”141 It reiterated the history-and-

tradition test already well established under Heller, McDonald,

and Bruen, while also reaffirming their distinction between

arms in common use versus “‘dangerous and unusual

weapons.’”142 In addition, its multiple opinions elaborated on

the standard for using analogical reasoning to determine

whether a modern law falls within a historical tradition.

8. Takeaways from the Supreme Court’s Precedents

Where do all these cases leave us? For starters, Heller’s

four holdings remain undisturbed: There is an individual

(though not unlimited) right to possess and carry arms.

138

Id. at 1 (quoting 18 U.S.C. § 922(g)(8) (cleaned up)).

139

Id. at 23 (Kavanaugh, J., concurring) (cleaned up).

140

Id. at 16 (majority).

141

Id. at 23 (Kavanaugh, J., concurring).

142

Id. at 6 (majority) (quoting Heller, 554 U.S. at 627).

31

Exceptions to that right depend on history and tradition. There

is no history and tradition of banning arms in common use for

lawful purposes. D.C. cannot categorically ban handguns

because they are in common use.

To Heller’s final and most specific holding, we can add

the most specific holdings of McDonald, Bruen, and Rahimi.

Like the federal government and federal enclaves, states too

cannot categorically ban handguns because they are in common

use for lawful purposes — McDonald.143 The government also

cannot impose an unusually restrictive licensing regime like

New York’s because it is inconsistent with the nation’s

historical tradition — Bruen.144 In contrast, the government

can temporarily disarm people who present a credible threat of

violence because that type of law is consistent with the nation’s

historical tradition — Rahimi.145

None of those holdings should cause unusual “difficulty”

for “judges on the ground.”146 For example, in cases about

banning arms in common use, Heller and its progeny require

no “mad scramble for historical records”147 because they have

“already done the work and provided the test that [we] must

143

McDonald, 561 U.S. at 749-50.

144

Bruen, 142 S. Ct. at 2156.

145

Rahimi, slip op. at 5.

146

Id. at 1 (Jackson, J., concurring); see also id. at 2 (Jackson, J.,

concurring) (“The message that lower courts are sending now in

Second Amendment cases could not be clearer. They say there is

little method to Bruen’s madness.”); id. (citing many lower-court

judges’ complaints about the Supreme Court’s jurisprudence).

147

Id. at 5 n.3 (Jackson, J., concurring).

32

apply.”148 And when we fail to apply their rule, “the blame”

lies “with us, not with them.”149

As for gun laws other than complete bans on arms in

common use for lawful purposes (Heller), unusually restrictive

licensing regimes (Bruen), and temporary disarmaments of

specific people who credibly threaten violence (Rahimi), the

government can defend laws regulating conduct covered by the

Second Amendment’s plain text only by identifying an

appropriate analogue from our nation’s historical tradition.150

Three considerations must inform that “analogical reasoning

under the Second Amendment.”151

First, “[w]hy and how the regulation burdens the right are

central to this inquiry.”152 The government must identify

traditional laws that had a similar justification and imposed a

similar burden when compared to the challenged modern law.

“[I]f earlier generations addressed the [same] societal problem,

but did so through materially different means, that . . . could be

evidence that a modern regulation is unconstitutional.”153

(Spoiler alert: This is a problem for the majority’s two

analogues.)

Second, to establish a historical tradition, the government

needs analogues that represent the “collective understanding of

Americans.”154 So outliers don’t count. That’s why Bruen

148

Smith, How Courts Have Defied Heller, at 10.

149

Rahimi, slip op. at 1 (Jackson, J., concurring).

150

See Bruen, 142 S. Ct. at 2133.

151

Id.; see also Rahimi, slip op. at 7-8.

152

Rahimi, slip op. at 7; see also Bruen, 142 S. Ct. at 2132-33.

153

Bruen, 142 S. Ct. at 2131.

154

Rahimi, slip op. at 11 (Kavanaugh, J., concurring).

33

dismissed “three colonial regulations” and “a few late-19th-

century outlier jurisdictions.”155 And it’s why Heller “would

not stake” its “interpretation of the Second Amendment upon a

single law, in effect in a single city, that contradicts the

overwhelming weight of other evidence.”156 (Spoiler alert:

This is a problem for the majority’s state-law analogue.)

Third, “when it comes to interpreting the Constitution, not

all history is created equal.”157 The “Second Amendment

‘codified a pre-existing right’ belonging to the American

people, one that carries the same ‘scope’ today that it was

‘understood to have when the people adopted’ it.”158 So its

scope “is pegged to the public understanding of the right when

the Bill of Rights was adopted in 1791.”159

That means “the history that matters most is the history

surrounding the ratification of the text.”160 For the Second

Amendment, the Founding Era matters more than the half-

century that followed it, which matters more than the late-

nineteenth and early-twentieth centuries, which matter more

than the late-twentieth and twenty-first centuries, which do not

155

Bruen, 142 S. Ct. at 2142 (emphasis omitted); id. at 2156; see also

id. at 2153 (“while we recognize the support that postbellum Texas

provides for [the government’s] view, we will not give

disproportionate weight to a single state statute and a pair of state-

court decisions”); Bevis v. City of Naperville, Illinois, 85 F.4th 1175,

1218 (7th Cir. 2023) (Brennan, J., dissenting) (“three analogues were

not enough in Bruen”).

156

Heller, 554 U.S. at 632.

157

Bruen, 142 S. Ct. at 2136.

158

Rahimi, slip op. at 2 (Gorsuch, J., concurring) (quoting Heller,

554 U.S. at 592).

159

Bruen, 142 S. Ct. at 2137.

160

Rahimi, slip op. at 2 (Barrett, J., concurring).

34

matter much at all. (Spoiler alert: This too is a problem for the

majority.)

To be sure, “post-ratification history” can “be important,”

especially when it’s close in time to the Founding, the

constitutional text is vague, the Founding-Era history is

inconclusive, the post-Founding tradition is well-established,

and judicial precedents give no guidance.161 Put differently,

post-ratification history matters when the only alternative is

policymaking from the bench.162 But “evidence of tradition

unmoored from original meaning is not binding law. And

scattered cases or regulations pulled from history may have

little bearing on the meaning of the text.”163

Heller is, as ever, instructive. There, the Founding-Era

history mattered the most. The Court said that if discussions

“took place 75 years after the ratification of the Second

Amendment, they do not provide as much insight into its

original meaning as earlier sources.”164 That’s why “Heller’s

interest in mid- to late-19th-century commentary was

secondary.”165 Heller’s “19th-century evidence was treated as

161

Id. at 10-11 (Kavanaugh, J., concurring).

162

See id. at 10 (Kavanaugh, J., concurring) (“there can be little else

to guide a judge deciding a constitutional case in that situation, unless

the judge simply defaults to his or her own policy preferences”).

163

Id. at 2-3 (Barrett, J., concurring) (cleaned up); see also Bruen,

142 S. Ct. at 2137 (“to the extent later history contradicts what the

text says, the text controls”); id. (“‘post-ratification adoption or

acceptance of laws that are inconsistent with the original meaning of

the constitutional text obviously cannot overcome or alter that text’”

(quoting Heller II, 670 F.3d at 1274 n.6 (Kavanaugh, J.,

dissenting))).

164

Heller, 554 U.S. at 614.

165

Bruen, 142 S. Ct. at 2137.

35

mere confirmation of what the Court thought had already been

established,”166 and it refused to give that “postenactment

history more weight than it can rightly bear.”167

So to sum up the history-and-tradition test, a historical

analogue need not be a “dead ringer” or “historical twin.”168

But analogues are strongest when (1) they burden gun rights

for a similar reason and in a similar way as the challenged

modern law; and (2) they represent the nation’s collective

understanding; and (3) they were enacted in an instructive

historical period, preferably around the Second Amendment’s

ratification in 1791. In Rahimi, the government won when it

hit that trifecta. In Heller, McDonald, and Bruen, the

government lost when it could not.

III. D.C.’s Ban on Plus-Ten Magazines Is Unconstitutional

D.C.’s ban on commonly used plus-ten magazines

conflicts with Heller’s holding that the government cannot ban

an arm in common use for lawful purposes. That alone decides

this case.

In addition, D.C. has failed to show that its ban is

consistent with the nation’s historical tradition — even

166

Id. (cleaned up).

167

Id. at 2136; see also id. at 2131 (“after considering ‘founding-era

historical precedent,’ including ‘various restrictive laws in the

colonial period,’ and finding that none was analogous to the

District’s ban, Heller concluded that the handgun ban was

unconstitutional” (emphasis added) (quoting Heller, 554 U.S. at

631)); Duncan II, 19 F.4th at 1158 (Bumatay, J., dissenting)

(“Prohibition-era laws of Michigan, Rhode Island, and Ohio . . .

aren’t nearly old enough to be longstanding”).

168

Bruen, 142 S. Ct. at 2133 (emphasis omitted).

36

assuming Heller left it an open question. That too is a sufficient

reason to hold that D.C.’s ban is unconstitutional.169

A. Applying Heller’s Common-Use Test to D.C.’s Ban on

Plus-Ten Magazines

The majority presumes that plus-ten magazines are arms

in common use by law-abiding citizens for the lawful purpose

of self-defense.170 On that, we agree.171

169

When I say D.C.’s ban is unconstitutional, I mean it is

unconstitutional as applied to magazines that hold up to 17 rounds.

Those are the only magazines at issue in this appeal, which concerns

the plaintiffs’ as-applied challenge. See Majority Op. at 7 n.2. We

are not asked to decide whether there is a right to magazines that hold

more than 17 rounds. Cf. Heller II, 670 F.3d at 1261 (“There may

well be some capacity above which magazines are not in common

use but, if so, the record is devoid of evidence as to what that capacity

is; in any event, that capacity surely is not ten.”).

170

Majority Op. at 11.

171

The majority uses the formulation “in common use for self-

defense,” see, e.g., id. (emphasis added), whereas I use the

formulation “in common use for lawful purposes,” cf. Bianchi, slip

op. at 87-88 (Richardson, J., dissenting) (“the tradition of prohibiting

dangerous and unusual weapons . . . does not support a complete ban

on the possession of weapons that are commonly used for lawful

purposes” (emphasis added)); Friedman v. City of Highland Park,

Illinois, 784 F.3d 406, 415 (7th Cir. 2015) (Friedman I) (Manion, J.,

dissenting) (“The ‘common use’ test . . . asks whether a particular

weapon is commonly used by law-abiding citizens for lawful

purposes.” (emphasis added)). For today’s case, the difference

doesn’t matter because the majority presumes that plus-ten

magazines are in common use by law-abiding citizens for “self-

defense,” which is a “lawful purpose.”

37

That should not be a close question. Americans have in

their hands and homes an estimated 100 million plus-ten

magazines.172 They likely account for about half of all

Because the distinction may matter in future cases, I offer a quick

note on why it seems to me that the “lawful purposes” formulation is

more faithful to the Supreme Court’s precedents.

The Supreme Court has often noted other lawful purposes for

keeping and bearing arms, in addition to self-defense. Heller, 554

U.S. at 599 (“preserving the militia was [not] the only reason

Americans valued the ancient right; most undoubtedly thought it

even more important for self-defense and hunting” (emphasis

added)); id. at 636-37 (Stevens, J., dissenting) (framing the question

in Heller as “[w]hether [the Second Amendment] . . . protects the

right to possess and use guns for [lawful] nonmilitary purposes like

hunting and personal self-defense”); see also id. at 620 (majority)

(noting that the Court had previously “described the right protected

by the Second Amendment as bearing arms for a lawful purpose”

(cleaned up)). Though the Court has also often mentioned self-

defense, that’s because self-defense is the primary “lawful purpose”

for which Americans keep and bear arms. See id. at 630 (self-defense

is handguns’ “core lawful purpose”); id. at 624 (using the phrase “for

lawful purposes like self-defense” (emphasis added)); McDonald,

561 U.S. at 780 (plurality) (stating that the “central holding in

Heller” was “that the Second Amendment protects a personal right

to keep and bear arms for lawful purposes, most notably for self-

defense within the home” (emphasis added)); cf. Bianchi, slip op. at

175-76 (Richardson, J., dissenting) (cautioning against a framework

that “allows judges to decide just how important they think certain

firearms are for self-defense and then to weigh th[at] finding against

the threat they believe those arms pose to the public at large”).

172

See Duncan II, 19 F.4th at 1155 (Bumatay, J., dissenting); see also

William English, 2021 National Firearms Survey: Updated Analysis

Including Types of Firearms Owned, SSRN, at 20, 24 (May 13,

2022), https://perma.cc/PXN2-T3XG (“English Report”) (estimating

that Americans have, over time, owned more than 500 million plus-

ten magazines, including 269 million for handguns).

38

magazines in circulation,173 and nearly half of gun owners have

owned them.174 These magazines “come standard” with many

of the nation’s most popular firearms, including “[m]illions of

semiautomatic pistols, the ‘quintessential self-defense weapon’

for the American people.”175

I could say more.176 But if plus-ten magazines are (1) half

of America’s magazines, (2) owned by half of America’s gun

owners, and (3) often standard on Americans’ preferred

weapon for self-defense, what else needs to be said? That is

(more than) enough to show common use for lawful purposes.

173

See Duncan II, 19 F.4th at 1155 (Bumatay, J., dissenting); id. at

1097 (majority) (“experts estimate that approximately half of all

privately owned magazines in the United States have a capacity

greater than ten rounds”).

174

See English Report at 1-2, 20.

175

Duncan II, 19 F.4th at 1155 (Bumatay, J., dissenting) (quoting

Heller, 554 U.S. at 629); see also Duncan I, 970 F.3d at 1142

(“several variants of the Glock pistol — dubbed ‘America’s gun’ due

to its popularity — come standard with a seventeen-round

magazine”); Kolbe v. Hogan, 849 F.3d 114, 129 (4th Cir. 2017)

(“Most pistols are manufactured with magazines holding ten to

seventeen rounds . . . .”), abrogated by Bruen, 142 S. Ct. 2111, 2125-

27 (2022); David B. Kopel, The History of Firearm Magazines and

Magazine Prohibitions, 78 Alb. L. Rev. 849, 874 (2015) (“It is

indisputable in the modern United States that magazines of up to

thirty rounds for rifles and up to twenty rounds for handguns are

standard equipment for many popular firearms.”).

176

Plus-ten magazines also have “a long historical lineage.” Duncan

II, 19 F.4th at 1140 (Bumatay, J., dissenting). “They enjoyed

widespread use throughout the nineteenth and twentieth centuries,”

with “no longstanding prohibitions against them.” Id. (Bumatay, J.,

dissenting).

39

In the context of a complete ban on a category of arms,

“that is all that is needed for citizens to have a right under the

Second Amendment to keep such weapons.”177 Heller held

that because handguns are “in common use,” D.C.’s “complete

prohibition of their use is invalid.”178 For the same reason,

D.C.’s ban on plus-ten magazines is unconstitutional.179

177

Friedman II, 577 U.S. at 1042 (Thomas, J., dissenting from denial

of certiorari) (emphasis added).

178

Heller, 554 U.S. at 624, 629; see also supra Part II.B.3.

179

See, e.g., Duncan II, 19 F.4th at 1140 (Bumatay, J., dissenting)

(“The state bans . . . [plus-ten] magazines [that] are lawfully owned

by millions of people nationwide and come standard on the most

popular firearms sold today. . . . But the Constitution protects the

right of law-abiding citizens to keep and bear arms typically

possessed for lawful purposes.”); Duncan I, 970 F.3d at 1169

(“California’s near-categorical ban of [plus-ten magazines] . . .

criminalizes the possession of half of all magazines in America

today. It makes unlawful magazines that are commonly used in

handguns by law-abiding citizens for self-defense. And it

substantially burdens the core right of self-defense guaranteed to the

people under the Second Amendment.”); New Jersey Rifle & Pistol

Clubs, 910 F.3d at 126-27, 130 (Bibas, J., dissenting) (“I would

enjoin this Act until New Jersey provides real evidence to satisfy its

burden of proving the Act constitutional. . . . People commonly

possess large magazines to defend themselves and their families in

their homes. That is exactly why banning them burdens the core

Second Amendment right.”); cf. Bianchi, slip op. at 152-53

(Richardson, J., dissenting) (The “evidence shows that millions of

Americans have chosen to equip themselves with semiautomatic

rifles, like the AR-15, for various lawful purposes. So Appellees

have failed to prove that these weapons are ‘unusual’ such that they

can be constitutionally outlawed. Maryland’s ban therefore violates

the Second Amendment.”).

40

In other words:

Major Premise (explained at length above):

Heller held that the government cannot ban arms in

common use for lawful purposes.

Minor Premise (undisputed by the majority):

Plus-ten magazines are arms in common use for

lawful purposes.

Conclusion:

The government cannot ban plus-ten magazines.180

180

Before discussing in the next section my disagreement with the

majority, I digress here to note two areas where the majority and I

share common ground.

First, I agree with the majority’s decision to presume that it doesn’t

matter whether plus-ten magazines “are rarely used to fire more than

a couple rounds in self-defense.” Majority Op. at 11. A handgun

may be “used” without firing it, and a magazine may be “used”

without dispensing a single round (let alone depleting its capacity).

See Heller, 554 U.S. at 629, 636 (recognizing that handguns are

commonly “used for self-defense” (emphasis added)); English

Report at 14 (noting that “in the vast majority of defensive gun uses

(81.9%), the gun was not fired”). What matters, again, is that

millions of law-abiding Americans have chosen to arm themselves

with plus-ten magazines to use for a lawful purpose. Id. at 26-33

(survey responses commenting on the utility of plus-ten magazines

in self-defense situations); id. at 23 (62.4% of 39 million plus-ten

magazine owners — about 24 million — own them for home

defense). In any event, Americans do often fire more than ten rounds

at the shooting range, and target practice is a perfectly lawful,

common use. See id.

41

B. Regarding the Majority

To repeat, I read Heller and its progeny to have already

held that the government cannot ban an arm in common use for

lawful purposes. But I also respect the good faith with which

my fellow panel members have concluded otherwise. In their

view, the validity of every ban on arms in common use is its

own open question, so D.C. deserves the chance to show its ban

“is consistent with this Nation’s historical tradition of firearm

regulation.”181

Even if that is in fact an open question, D.C. has identified

no “historical tradition” of any ban on an arm in common use

for lawful purposes. Neither has the majority. Instead, the

Second, though the majority says I argue that “any restriction” of

arms in common use is unconstitutional, that is not my position. See

Majority Op. at 12 (“Hanson would have us stop here, as would our

dissenting colleague, arguing that, under Bruen, to find an arm is in

common use renders any restriction of that arm unconstitutional.”).

I agree with the majority that some regulations of arms in common

use are constitutional — including some regulations of plus-ten

magazines. But that’s because some regulations are not outright

bans. Regulations of arms in common use — other than outright

bans — are constitutional if they are “consistent with this Nation’s

historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2126.

Heller lists some regulations — other than outright bans — that are

likely consistent with our nation’s history and tradition of firearms

regulation: “prohibitions on carrying concealed” arms in common

use; prohibitions on the possession of arms in common use “by

felons and the mentally ill”; “forbidding the carrying of” arms in

common use “in sensitive places such as schools and government

buildings”; and “laws imposing conditions and qualifications on the

commercial sale of arms” in common use. Heller, 554 U.S. at 626-

27 & n.26.

181

Bruen, 142 S. Ct. at 2126.

42

majority invents a regulatory category — “restrictions on . . .

weapons particularly capable of unprecedented lethality.”182

Then it says such restrictions are consistent with two historical

analogues.183

I agree with the majority that the history-and-tradition test

allows for historical analogues less specific than, say, bans on

plus-ten magazines. After all, “the Second Amendment

permits more than just those regulations identical to ones that

could be found in 1791.”184 But the history-and-tradition test

demands a level of generality more specific than the majority’s

preferred category of “restrictions on weapons particularly

capable of unprecedented lethality.”185

Heller never mentioned that category — even though the

Court was told that the handguns at issue there “are used in an

extraordinary percentage of this country’s well-publicized

shootings, including the large majority of mass shootings.”186

Instead, Heller set the level of generality for bannable arms at

“dangerous and unusual” arms — i.e., arms not “in common

use” for lawful purposes.187 So did the Supreme Court’s

182

Majority Op. at 18.

183

See id. at 18-25.

184

See Rahimi, slip op. at 7.

185

See Majority Op. at 18; see also id. at 13 (considering “an

unbroken tradition of regulating weapons to protect communities”

(cleaned up) to be “the pinnacle of abstraction” and representative of

a “regulatory blank check”).

186

See Br. of Violence Policy Center et al. as Amici Curiae

Supporting Petitioners at 24, Heller, 554 U.S. 570 (No. 07-290),

2008 WL 136348; see also Smith, How Courts Have Defied Heller,

at 7-8.

187

Heller, 554 U.S. at 627 (emphasis added) (cleaned up).

43

subsequent cases.188 They confirm that “the relative

dangerousness of a weapon is irrelevant when the weapon

belongs to a class of arms commonly used for lawful

purposes.”189

As for the two historical analogues proposed by the

majority, they do not show a historical tradition of laws like

D.C.’s ban of plus-ten magazines. The majority first points to

a “handful” of outlier state and territorial laws from the second

half of the nineteenth century that restricted the open carry of

Bowie knives.190 The majority’s second analogue — the

National Firearms Act of 1934 — regulated only “unusual”

weapons like fully automatic machine guns, not arms “in

common use” like the plus-ten magazines that D.C. has

banned.191

1. Outlier State and Territory Bowie-Knife Regulation

(1871-1889)

In the 1870s and ‘80s, two states (Texas and Arkansas) and

a federal territory (Arizona) prohibited the open carry of Bowie

188

See supra Part II.B.4, 6-7.

189

Caetano, 577 U.S. at 418 (Alito, J., concurring in the judgment)

(emphasis added).

190

See Majority Op. at 19-20.

191

See id. at 22-24.

44

knives.192 For the sake of argument, let’s suppose that Bowie

knives were arms in common use for lawful purposes.193

Even then, these three laws did not impose the “burden”

on arms that D.C.’s total ban imposes because none of these

laws banned Bowie knives from the home.194 Plus, two

expressly permitted keeping Bowie knives at one’s “place of

business,” and all of these laws allowed travelers to carry

Bowie knives.195 In contrast, D.C.’s plus-ten magazine ban

192

An Act to Regulate the Keeping and Bearing of Deadly Weapons,

1871 Tex. Gen. Laws 25, ch. 34, § 1 (prohibiting “any person” from

“carrying [a Bowie knife] on or about his person, saddle, or in his

saddle bags”); An Act to Preserve the Public Peace and Prevent

Crime, 1881 Ark. Acts 191, no. 96, § 1 (crime to “wear or carry”

Bowie knives “in any manner”); An Act Defining and Punishing

Certain Offenses Against the Public Peace, 1889 Ariz. Sess. Laws

30, no. 13, § 1 (no person may “carry [a Bowie knife] on or about his

person, saddle, or in his saddle bags”); see Majority Op. at 19-20

(citing these three laws as “ban[ning] the carrying, rather than only

the concealment, of Bowie knives”); An Act to Provide a Temporary

Government for the Territory of Arizona, Pub. L. No. 37-56, ch. 56,

§ 1, 12 Stat. 664, 665 (1863) (creating the “temporary” Arizona

territory government that enacted the Bowie-knife law).

193

But see Majority Op. at 20 (“those weapons . . . are usually

employed in private broils, and . . . are efficient only in the hands of

the robber and the assassin” (quoting Aymette v. State, 21 Tenn. 154,

158 (1840))).

194

Bruen, 142 S. Ct. at 2133.

195

See 1871 Tex. Gen. Laws 25, § 1 (“provided, that this section shall

not be so construed as to prohibit any person from keeping or bearing

arms on his or her own premises, or at his or her own place of

business, . . . nor to prohibit persons traveling in the State from

keeping or carrying arms with their baggage” (second and third

emphasis added)); 1881 Ark. Acts 191, § 1 (“Provided, further, That

nothing in this act be so construed as to prohibit any person from

45

applies in the home and everywhere else. For that reason alone,

the three laws are not analogous to D.C.’s.

In addition, three laws passed nearly a century after the

Second Amendment’s ratification (plus a couple of state court

decisions)196 hardly constitute a “representative historical

analogue”197 that reflects the “collective understanding of

Americans.”198 Heller refused to “stake” its “interpretation of

the Second Amendment upon a single law, in effect in a single

city.”199 Bru

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