Amicus Curiae Brief — Ocean State Tactical, LLC, dba Big Bear Hunting and Fishing Supply, et al., Petitioners v. Rhode Island, et al.

No. 24-131

IN THE

Supreme Court of the United States

OCEAN STATE TACTICAL, LLC, ET AL.,

Petitioners,

v.

STATE OF RHODE ISLAND, ET AL.,

Respondents.

On Petition Of Certiorari

To The United States Court Of Appeals

For The First Circuit

BRIEF FOR AMICUS CURIAE NATIONAL

SHOOTING SPORTS FOUNDATION, INC.

IN SUPPORT OF PETITIONERS

LAWRENCE G. KEANE

NOEL J. FRANCISCO

SHELBY BAIRD SMITH

Counsel of Record

NATIONAL SHOOTING

ANTHONY J. DICK

SPORTS FOUNDATION, INC. HARRY S. GRAVER

400 N. Capitol St., NW

JONES DAY

Washington, DC 20001

51 Louisiana Ave., NW

Washington, DC 20001

ANDREW E. LELLING

(202) 879-3939

njfrancisco@jonesday.com

JONES DAY

100 High St., 21st Floor

Boston, MA 02110

Counsel for Amicus Curiae

i

CORPORATE DISCLOSURE STATEMENT

The National Shooting Sports Foundation, Inc.,

certifies that it has no parent corporation and no

publicly held company owns 10% or more of its stock.

ii

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ............. i

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I.

THE SECOND AMENDMENT PROHIBITS

TOTAL BANS ON ARMS THAT ARE IN

COMMON USE FOR LAWFUL PURPOSES. ............. 4

II.

“LARGE CAPACITY MAGAZINES” ARE ARMS

IN COMMON USE FOR LAWFUL PURPOSES........ 15

CONCLUSION ......................................................... 23

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Bevis v. City of Naperville,

85 F.4th 1175 (7th Cir. 2023) ........................ 11, 14

Bianchi v. Brown,

2024 WL 3666180 (4th Cir. 2024)

(en banc) ............................................ 8, 9, 11, 13-15

Caetano v. Massachusetts,

577 U.S. 411 (2016) .......................................... 7, 19

District of Columbia v. Heller,

554 U.S. 570, 636 (2008) .......................... 2, 4, 5, 12

Duncan v. Bonta,

19 F.4th 1087 (9th Cir. 2021) .............................. 17

Duncan v. Bonta,

83 F.4th 803 (9th Cir. 2023) ..................... 15-17, 21

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) ................................ 22

Friedman v. City of Highland Park, Ill.,

577 U.S. 1039 (2015) ........................ 7, 9, 12, 14, 19

Garland v. Cargill,

602 U.S. 406 (2024) ........................................ 17, 18

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) .... 2, 4-9, 12, 14, 15,

17, 19, 22

iv

Jackson v. City & County of San

Francisco,

746 F.3d 953 (9th Cir. 2014) ................................ 16

Luis v. United States,

578 U.S. 5 (2016) .................................................. 16

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................................ 4

New York State Rifle & Pistol Ass’n v.

Bruen,

597 U.S. 1 (2022) ................................ 3-7, 13-15, 19

Robertson v. Baldwin,

165 U.S. 275 (1897) ................................................ 9

Staples v. United States,

511 U.S. 603 (1994) .............................................. 17

United States v. Cruikshank,

92 U.S. 542 (1875) .................................................. 9

United States v. Rahimi,

144 S. Ct. 1889 (2024) .................................... 3, 4, 8

CONSTITUTIONAL AUTHORITIES

U.S. Const. amend. I ................................................. 14

U.S. Const. amend. II .................... 2-5, 7-16, 19, 20, 22

U.S. Const. amend. XIV ...................................... 20, 21

v

OTHER AUTHORITIES

Trench Coxe, “A Pennsylvanian III”

(Feb. 20, 1788) ...................................................... 11

Clayton E. Cramer & Joseph Edward

Olson, Pistols, Crime, and Public

Safety in Early America, 44

WILLAMETTE L. REV. 699 (2008)........................... 20

The Federalist ............................................................ 10

Heritage Foundation, Defensive Gun

Uses in the U.S. .................................................... 18

Dave Jordan, Victim of Home Invasion

Speaks; Credits Wife With Saving His

Life With AR-15, SpectrumNews

Florida (November 1, 2019, 4:37 PM).................. 19

David B. Kopel, The History of Firearm

Magazine Prohibitions, 78 ALB. L.

REV. 849 (2015)............................................... 18, 20

David B. Kopel & Joseph G.S. Greenlee,

The History of Bans on Types of Arms

Before 1900, 50 J. LEGISL. 223 (2024) .................. 15

Nat’l Shooting Sports Found.,

Detachable Magazine Report 19902021 (2024) ........................................................... 17

Harold L. Peterson, Arms and Armor in

Colonial America 1526-1783 (1956) ............... 19-21

vi

Mark W. Smith, NYSPRA v. Bruen, 24

HARVARD J. L. & PUB. POLICY, PER

CURIAM 8 (2022) ................................................... 15

Sup. Ct. R. 37.6 ............................................................ 1

William English, 2021 National

Firearms Survey: Analysis of

Magazine and Ownership and Use

(May 4, 2023) ........................................................ 17

William English, 2021 National

Firearms Survey: Updated Analysis

Including Types of Firearms Owned

(May 13, 2022) ...................................................... 17

INTEREST OF AMICUS CURIAE

The National Shooting Sports Foundation, Inc.

(NSSF) is the firearm industry’s trade association.

Founded in 1961, NSSF’s mission is to promote,

protect, and preserve hunting and shooting sports.

NSSF has approximately 10,500 members—including

thousands of federally licensed manufacturers,

distributors, and sellers of firearms, ammunition, and

related products.

NSSF has a clear interest in this case. Its members

engage in the lawful production, distribution, and sale

of constitutionally protected arms. And when a state

like Rhode Island tries to categorically ban such an

arm, that action threatens NSSF members’ businesses

and infringes on their constitutional rights. Because

these harmful and unlawful bans will only continue

until this Court intervenes, NSSF submits this brief in

support of Petitioners, and urges the Court to take this

case and reverse the badly mistaken decision below. 1

1 All parties were timely notified of the filing of this brief.

No

counsel for any party authored this brief in whole or in part, and

no entity or person, aside from amicus curiae, its members, and

its counsel, made any monetary contribution toward its

preparation or submission. See Sup. Ct. R. 37.6.

2

SUMMARY OF ARGUMENT

In District of Columbia v. Heller this Court

established a clear constitutional rule: If an arm is in

common use for lawful purposes by the American

people, then an “absolute prohibition” is simply “off

the table” for the government. 554 U.S. 570, 636

(2008). In the years since, Justices Thomas, Alito, and

then-Judge Kavanaugh have all expressly affirmed

that Heller meant what it said: If an arm is in lawful

common use, it cannot be totally banned—full stop.

That should make this an easy case. What Rhode

Island calls “large-capacity magazines” (LCMs)—

those that hold more than ten rounds—are in reality

ordinary magazines that are a standard component of

the country’s most popular firearms. They are in

lawful and common use—i.e., they are “typically

possessed,” id. at 625—by millions of law-abiding

Americans seeking to defend themselves, their

families, and their communities. Hundreds of millions

of LCMs are in circulation today. Indeed, almost ten

percent of Americans have one—making them one of

the most popular products in the country.

Rhode Island’s categorical ban on “LCMs”—which,

again, are really standard-issue magazines—therefore

amounts to a ban on one of the most common arms

used by Americans for self-defense. And for that

reason alone, the law is unconstitutional: The Second

Amendment prohibits a government from completely

banning an arm that is in common use for lawful

purposes. While a government may regulate such

arms—e.g., taking them out of the hands of violent

felons—it cannot ban them outright for all citizens;

3

under the Second Amendment, a state cannot make

criminal what the people have made common.

Many lower courts, however, have not gotten the

message. As Petitioners catalog, the pre-Heller bad old

days are back in full force across the courts of appeals.

Instead of explicit interest balancing (where the

government always wins), many courts now engage in

a purportedly “nuanced” historical analysis (where the

government always wins).

This Court’s review is needed. Without it, a steady

cast of lower courts will continue to reject the notion

that the Second Amendment contains any bright-line

rules at all. Instead, these courts will continue to

divine ever-vague principles from history, giving

governments ever-more regulatory power over

firearms, all to the predictable consequence of an evereroding individual right. The Second Amendment

demands more. A law obscured by amber is no better

than one trapped in it. See United States v. Rahimi,

144 S. Ct. 1889, 1898 (2024).

In short, applying the Second Amendment requires

adherence to the country’s “regulatory tradition.” Id.

And while doing so may involve some hard cases that

turn on a “nuanced approach,” there are also

“straightforward” cases that rest on bright-line rules.

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S.

1, 26-27 (2022). This case is firmly in the latter camp.

Rhode Island’s law bans arms that are unquestionably

in common use for lawful purposes. And when an arm

is part of the American tradition of firearm ownership,

a complete ban is necessarily inconsistent with the

American tradition of firearm regulation. The

government may perhaps regulate who can carry it or

4

where, but a total ban is per se unlawful. It is

imperative the Court say so (again), and reject the

latest effort to hollow the Second Amendment’s core.

ARGUMENT

I.

THE SECOND AMENDMENT PROHIBITS TOTAL

BANS ON ARMS THAT ARE IN COMMON USE FOR

LAWFUL PURPOSES.

The Second Amendment states that “the right of the

people to keep and bear Arms, shall not be infringed.”

In Heller, the Court held that this amendment guards

“an individual right to keep and bear arms.” 554 U.S.

at 595. In McDonald v. City of Chicago, this Court

affirmed that this right is “fundamental to our scheme

of ordered liberty” and “deeply rooted in this Nation’s

history and tradition.” 561 U.S. 742, 767 (2010). And

in Bruen, this Court reiterated that the government

cannot limit the free exercise of this right, unless that

limit is consistent with “the historical tradition that

delimits the outer bounds of the right.” 597 U.S. at 19.

That historical tradition reveals certain “principles”

that all firearm laws must follow. Rahimi, 144 S. Ct.

at 1898. But as this Court’s precedent confirms, those

principles compel different analyses for regulations on

arms, versus outright bans. As for the former—e.g.,

who may possess an arm, where it may be carried—

their constitutional validity turns on whether “the

new law is ‘relevantly similar’ to laws that our

tradition is understood to permit.” Rahimi, 144 S. Ct.

at 1898. But for categorical bans, our regulatory

tradition establishes a more “straightforward” rule: If

an arm is in common use for lawful purposes, it cannot

be banned. Bruen, 597 U.S. at 26. A government still

may regulate to a degree its purchase, possession, or

5

use; but it cannot draw one regulatory arrow from the

quiver—a total prohibition.

1. Heller already adopted this bright-line rule.

While this Court spilled much ink on the meaning of

the Second Amendment, it needed only a few short

paragraphs to explain why D.C.’s “handgun ban” was

unconstitutional. 554 U.S. at 628.

It was “enough,” this Court held, that D.C. had tried

a “complete prohibition” on the “most popular weapon

chosen by Americans [today] for self-defense in the

home.” 554 U.S. at 629. There was zero historical

justification for a categorical ban on an arm that was

in common use for lawful purposes. Id. at 628-29. It

thus did not matter that some handguns are used

unlawfully; or that D.C. permitted other firearms for

self-defense (like long guns). Id. at 629. Americans had

decided that the handgun was the “quintessential selfdefense weapon”—and for that reason alone, a total

ban on that class of arms was unconstitutional. Id. at

629. Although the Second Amendment left

governments with “a variety of tools” for “regulating

handguns,” an “absolute prohibition” on such an arm

was the sort of “policy choice[]” that the Constitution

had taken “off the table.” Id. at 636 (emphases added).

2. Since Heller, three Justices have confirmed that

this Court meant what it said: If an arm is in common

use for lawful purposes, it cannot be totally banned.

Start with then-Judge Kavanaugh. In the follow-on

to Heller, Judge Kavanaugh applied the above rule in

a case challenging D.C.’s total ban on semi-automatic

rifles—in a dissenting opinion whose historical

approach soon became the law of the land, endorsed in

letter and logic by this Court in Bruen. 597 U.S. at 31

6

(quoting Heller v. District of Columbia, 670 F.3d 1244,

1275 (D.C. Cir. 2011) (Heller II) (Kavanaugh, J.)).

Interpreting Heller, Judge Kavanaugh detailed how

the Second Amendment’s text, history, and tradition

require different methods of analysis for “regulations

on the sale, possession, or use of guns,” as opposed to

total “bans on categories of guns.” 670 F.3d at 1271-72.

As to the former—regulations like where an arm

may be used, or who is allowed to have a firearm—the

government may “impose regulations” that track

“traditional, longstanding regulations in the United

States.” Id. at 1273. This inquiry typically requires

courts to “reason by analogy from history and

tradition.” Id. at 1275; see also Bruen, 597 U.S. at 28.

But categorical bans are a different animal. The

“historical tradition” of American firearm regulation

reveals that “bans on categories of [arms]” are allowed

only for “[arms] that are ‘dangerous and unusual.’”

Heller II, 670 F.3d at 1271-72 (Kavanaugh, J.,

dissenting) (quoting Heller, 554 U.S. at 627). The

flipside of this settled tradition is that “bans” cannot

extend to arms that are “in common use by lawabiding citizens,” which are by definition not unusual

at all. Id. at 1272.

Applying this bright-line rule, Judge Kavanaugh

had little trouble concluding that D.C.’s total ban on

semi-automatic rifles was illegal. All agreed “a

significant percentage of rifles [that] are semiautomatic” are “in common use today” for lawful

purposes. Id. at 1286-87. And that alone was

dispositive. “Heller protects weapons that have not

traditionally been banned and are in common use by

law-abiding citizens. Semi-automatic rifles have not

7

traditionally been banned and are in common use

today, and are thus protected under Heller.” Id. at

1287. That did not mean such arms are entirely

immune from regulation. “But the government may

not generally ban semi-automatic guns, whether semiautomatic rifles, shotguns, or handguns.” Id. at 1288

(emphasis added).

Next up, in 2015, the author of Bruen (joined by the

author of Heller) endorsed the exact same reasoning.

Dissenting from denial in a case challenging a similar

semi-automatic rifle ban (except originating out of a

city in Illinois), Justice Thomas explained that the

Second Amendment bars a government from enacting

a “categorical ban[]” on arms “commonly own[ed] for

lawful purposes.” Friedman v. City of Highland Park,

Ill., 577 U.S. 1039, 1039 (2015) (Thomas, J., dissenting

from denial). When it comes to an absolute prohibition

on a category of arm, the singular question under

Heller is “whether the law bans types of firearms

commonly used for a lawful purpose—regardless of

whether alternatives exist.” Id. at 1042. And since

semi-automatic rifles were obviously in common use

for lawful purposes, that was “all that is needed” under

this Court’s cases to hold the ban unlawful. Id.

The next year, Justice Alito (joined by Justice

Thomas) added his voice to the chorus in a case

involving an absolute prohibition on stun guns: If an

arm is “widely owned and accepted as a legitimate

means of self-defense across the country,” it cannot be

subject to a “categorical ban” under Heller. Caetano v.

Massachusetts, 577 U.S. 411, 420 (2016) (Alito, J.,

concurring in the judgment). The “pertinent Second

Amendment inquiry” is thus whether a given arm is

“commonly possessed … for lawful purposes today.” Id.

8

If so, a ban is unlawful—no further information

needed.

3. Justices Thomas, Alito, and Kavanaugh have it

right. And that is so not just as a matter of Heller, but

also as a matter of history. The common-use test is the

byproduct of centuries of unbroken historical practice.

As Judge Richardson exhaustively catalogued in a

recent tour de force opinion, the American tradition of

firearm regulation has drawn a consistent and marked

distinction between bans on dangerous and unusual

arms, versus arms that are in common use for lawful

purposes—with bans allowed on the former, but not

the latter. Bianchi v. Brown, 2024 WL 3666180, at *58

(4th Cir. 2024) (en banc) (Richardson, J., dissenting).

That follows from the core of the historic right that the

Second Amendment secured: a government may at

times “ban dangerous and unusual weapons,” but not

“weapons commonly used for lawful purposes.” Id.; see

also Rahimi, 144 S. Ct. at 1897 (observing that

historical bans on classes of arms have extended only

to “dangerous and unusual weapons”).

On this score, history paints with clear strokes. The

right of a free people to hold “common weapons” for

private and public defense had deep roots in English

law and practice. Bianchi, 2024 WL 3666180, at *52

(Richardson, J., dissenting). That tradition carried

across the Atlantic, and soon became well-established

within the American colonies. Id. at *53. And when

King George tried to strip Americans of this basic civil

right—i.e., when he tried to ban and confiscate

common arms—it helped spark a revolution. Id. at

*41.

9

After that revolution succeeded, the Founders

refused to give the new government the power to strip

its citizens of the very arms that had just won them

their independence. Instead, they enshrined in the

Constitution the right of the people to possess

“common weapons.” Id. at *52.

Indeed, the right to keep and bear arms in lawful

common use was perhaps the central guarantee of the

Second Amendment. Again, that amendment did not

“lay down any novel principles of government.”

Robertson v. Baldwin, 165 U.S. 275, 281 (1897). It

codified a “pre-existing right,” Heller, 554 U.S. at

592—the right of a free people to maintain “arms for

lawful ends like self-defense” and “militia service.”

Bianchi, 2024 WL 3666180, at *58 (Richardson, J.,

dissenting).

And critically, the “scope” of that right—i.e., what

arms the people could lawfully bear in service of their

civic duties—was never something the government

determined on its own. Friedman, 577 U.S. at 1039

(Thomas, J., dissenting from denial). The right existed

“[in]dependent” of the government. United States v.

Cruikshank, 92 U.S. 542, 553 (1875). Its scope was

instead decided “by what private citizens” themselves

chose to “commonly possess” for their own defense.

Friedman, 577 U.S. at 1041 (Thomas, J., dissenting

from denial). In other words, the people had a direct

and unalterable say in their own defense. And that is

exactly what the Second Amendment protects: Its very

object was to “take[] out of the hands of government”

the “power” to decide for itself what the people “really”

need for their own protection. Heller, 554 U.S. at 634.

10

That is all the more true because the Founders saw

the right to keep and bear arms as an essential check

upon government. Shaped by their experience under

the thumb of King George, the Founders were resolute

that America would not be a nation that was “afraid to

trust the people with arms.” The Federalist No. 46, at

321 (Madison) (Cooke ed., 1961). The opposite. The

Founders had seen firsthand on the battlefield that

having an “armed” citizenry was one of our defining

“advantage[s]”—one that “Americans possess[ed] over

the people of almost every other nation.” Id. And they

trusted this citizenry to “defend their own rights and

those of their fellow citizens” against any inchoate

tyranny that might arise within the new nation. The

Federalist No. 29, at 184 (Hamilton) (Cooke ed., 1961).

By these lights, the proposition that a government

could totally ban an arm that the people had chosen

for their own lawful defense would have been

anathema to the Founders. If the Second Amendment

was to work as a check on government, it would be

nonsensical that the content of that right could then be

purely dictated by governmental grace. Put otherwise,

if the people were supposed to be a counterbalance to

government, the last thing the Framers would have

wanted is for the government to have the authority to

totally ban those arms commonly held by the people.

A ban on weapons nobody owns does little to alter the

balance of power; taking common arms from the hands

of the people is a different matter entirely. As such,

the Second Amendment guaranteed that the people

would retain their right to keep and bear common

arms—and in turn, would bar the government from

stripping law-abiding Americans of the arms that they

had commonly chosen for their own defense.

11

This is all how the Second Amendment was

understood over the course of the nineteenth century.

Bianchi, 2024 WL 3666180 at *55-57 (Richardson, J.,

dissenting) (collecting laws and state court decisions).

During this period, there is no evidence on the other

side of the ledger—examples of banning common arms

are “simply nonexistent.” Id. at *74. Instead, there is

one pattern.

“The line between dangerous and

unusual weapons, on the one hand, and common

weapons, on the other, thus has deep roots in our

tradition.” Id. at *58.

In short, the Second Amendment sought to shield by

law what had already been enshrined by custom: A

country where the people had the freedom to decide for

themselves the arms best suited for their defense; and

where the government did not have the power to deny

law-abiding citizens “those arms customarily held by

[them] for lawful purposes.” Bianchi, 2024 WL 366180,

at *58 (Richardson, J., dissenting). That was simply

“the birth-right of an American”—a right that no

American government has the “power” to extinguish.

Trench Coxe, “A Pennsylvanian III” (Feb. 20, 1788).

4. The circuits, by contrast—including the one

below—have allowed just that. Pet.App.21-23; see

Bianchi, 2024 WL 3666180, at *16-17; Bevis v. City of

Naperville, 85 F.4th 1175, 1198-99 (7th Cir. 2023).

They have generally offered three unsound reasons for

bucking what precedent and history demand.

First, these courts have principally rejected the

common-use test as a bad idea. It “defies reason,” says

the First Circuit, for the lawfulness of a ban to turn on

whether an arm happens to be “owned by millions of

Americans.” Pet.App.21; see, e.g., Bianchi, 2024 WL

12

3666180, at *16 (labeling as “ill-conceived popularity

test”). On this view, Heller could not have possibly

meant what it said—and it is better read (or more

aptly, edited) to say that while categorical bans may

lawfully extend to “dangerous and unusual weapons,”

that does not mean they can “only” extend to such

weapons. Pet.App.21.

But this is wrong at both turns. For one, Heller could

not have been clearer. In the last part of the opinion—

which, again, concerned the propriety of a total ban on

a category of arms—this Court reasoned that it was

“enough” to resolve the constitutional question to

observe that the handgun is the “most popular weapon

chosen by Americans for self-defense in the home.” 554

U.S. at 629. And for that reason alone, “a complete

prohibition of their use is invalid.” Id. Whatever lower

courts may think of the brightline rule adopted by

Heller, there is no doubt it is what Heller said: A ban’s

constitutionality turns on “whether the law bans types

of firearms commonly used for a lawful purpose—

regardless of whether alternatives exist.” Friedman,

577 U.S. at 1042 (Thomas, J., dissenting from denial).

And far from “defying reason,” Heller was right.

Notwithstanding the scorn of the First Circuit, for the

Founding Fathers the “popularity test” was the entire

point. The Second Amendment codified a preexisting

right, and by tradition, the scope of that right was

shaped by the people themselves—they had a civic

responsibility to participate in the public and private

defense, and in turn a civil right to keep and bear those

arms that were “typically possessed by law-abiding

citizens.” Heller, 554 U.S. at 625. In codifying that

right, the Founders thus “t[ook] out of the hands of

government” the unfettered power to dictate what

13

categories of arms the people could lawfully bear.

Bruen, 597 U.S. at 23. The range of arms available to

Americans would not depend exclusively on the whims

of the government. Instead, it would be determined by

the collective wisdom of a free people in choosing

which arms to commonly use for lawful purposes.

Second, the anti-common-use circuits have insisted

that governments must have the capacity to ban arms

when they give rise to new dangers. See Pet.App.25.

For support, these courts read Bruen to hold that when

faced with “unprecedented social concerns or dramatic

technological changes,” a government must have freer

reign to regulate arms—including with bans, and even

if those arms happen to be commonly used for lawful

purposes. See Bianchi, 2024 WL 3666180, at *18

(quoting Bruen, 597 U.S. at 27).

But that is not what Bruen said. The (now oftquoted) phrase above comes from a part of the opinion

making the intuitive point that since the “regulatory

challenges posed by firearms today are not always the

same as those that preoccupied the Founders in 1791

or the Reconstruction generation in 1868,” there may

need to be “present-day firearm regulations” that are

“beyond those the Founders specifically anticipated.”

Bruen, 597 U.S. at 27-28. The Court made equally

clear, however, that the presence of new conditions is

not then a license for a “regulatory blank check.” Id. at

30. Nor are novel circumstances a predicate for

governments to adopt laws or regulations that the

Second Amendment otherwise forbids. See id.

The latter point is critical—and it is what the court

below (and those like it) have disregarded. Even if

modern problems warrant modern regulation, the

14

advent of a novel issue does not suddenly put all

“policy choice[s]” back on “the table.” Heller, 554 U.S.

at 636. That is, even if “unprecedented societal

concerns” could potentially justify new regulations on

an arm—e.g., how it is sold, who may possess it—they

cannot authorize the state to violate any of the Second

Amendment’s “fixed” rules. Bruen, 597 U.S. at 28. Just

as the First Amendment prohibits banning the

expression of political viewpoints no matter how

“dangerous,” the Second Amendment prohibits a total

“ban” on arms “commonly used for lawful purposes.”

Friedman, 577 U.S. at 1039 (Thomas, J., dissenting

from denial). Again, that does not mean firearm

regulation is an all-or-nothing task; governments may

issue narrower laws restricting the sale, use, or

possession of such arms, consistent with the nation’s

regulatory tradition. But once the people have put an

arm into common use for lawful purposes, it is beyond

the reach of a categorical ban.

Third, paying lip-service to Bruen, these courts have

claimed that total bans on common arms are actually

consistent with the American history and tradition of

firearm regulation. Pet.App.14-20. As support, these

courts often marshal the same subset of examples (e.g.,

regulations on sawed-off shotguns, bowie knives, or

gunpowder storage). But none of them is able to

withstand a moment’s examination, as Petitioners

explain. Pet. 23-24. All of them involve regulations

about where arms could be used (e.g., bowie knives); or

how they could be kept (e.g., gunpowder-storage rules);

or bans on weapons that were never in lawful common

use (e.g., sawed-off shotguns). See Bianchi, 2024 WL

3666180, at *72-74 (Richardson, J., dissenting)

(detailing all of this); Bevis v. City of Naperville, 85

15

F.4th 1175, 1217-19 (7th Cir. 2023) (Brennan, J.,

dissenting) (same); Duncan v. Bonta, 83 F.4th 803,

816-21 (9th Cir. 2023) (Bumatay, J., dissenting from

grant of stay pending appeal) (same).

Neither the First Circuit nor any other federal court

has identified one historic example of a ban on an arm

in common use for lawful purposes. And that is

because none exist. Indeed, two historians recently

surveyed every ban on arms in this country before

1900, and found zero. David B. Kopel & Joseph G.S.

Greenlee, The History of Bans on Types of Arms Before

1900, 50 J. LEGISL. 223, 383 (2024); see Mark W.

Smith, NYSPRA v. Bruen, 24 HARVARD J. L. & PUB.

POLICY, PER CURIAM 8 (2022) (“[T]here is zero

historical support from the Founding—or even the

Reconstruction era—for banning commonly possessed

arms; under the Bruen test, that is the end of the

matter.”). To borrow again from Judge Richardson:

The historical support in favor of such bans is “simply

nonexistent.” Bianchi, 2024 WL 3666180, at *74

(Richardson, J., dissenting).

The upshot: The government may not categorically

ban an arm that is in common use for lawful purposes.

That “principle” is based in a tradition “that stretched

back far before and extended far after the Second

Amendment’s adoption.” Id. at *59. It was faithfully

applied by this Court in Heller, when striking down

D.C’s handgun ban. And it is rightly the law of the

land—whether or not the lower federal courts approve.

II. “LARGE CAPACITY MAGAZINES” ARE ARMS IN

COMMON USE FOR LAWFUL PURPOSES.

Rhode Island’s ban thus plainly violates the Second

Amendment. A ban on LCMs is doubtless a ban on

16

“arms,” as Petitioners explain. Pet. 14-15. After all, the

Second Amendment does not arbitrarily prioritize one

piece of metal over another; it protects firearms

including all their component parts, because the right

to carry a firearm would mean nothing if the

government could ban bullets or triggers or

magazines. See Luis v. United States, 578 U.S. 5, 26

(2016) (Thomas, J., concurring in the judgment)

(“Constitutional rights thus implicitly protect those

closely related acts necessary to their exercise.”); see

also, e.g., Duncan, 83 F.4th at 813-14 (Bumatay, J.,

dissenting) (“Without protection of the components

that render a firearm operable, like magazines, the

Second Amendment right would be meaningless.”);

Jackson v. City & County of San Francisco, 746 F.3d

953, 967 (9th Cir. 2014) (similar point about “bullets”).

And there is no doubt that LCMs are in common use

by Americans for lawful purposes. While the commonuse test may well sometimes involve hard questions at

the margins, this is an easy case because LCMs are

one of the most popular magazines in America. They

are standard components of semi-automatic handguns

and rifles all across the country, and are owned for

lawful purposes by nearly ten percent of the

population. Moreover, LCMs are not some new

phenomenon, or overnight success. They have been a

standard feature of lawful American firearms since

before there was a United States. Indeed, they became

widespread in this country even before the telephone

did. If LCMs are not in common use, nothing is.

1. The term “LCM” is pure branding: In reality, it

is the standard magazine that comes as part of the

most common firearms owned by everyday lawabiding Americans. Indeed, nearly half of American

17

gunowners possess at least one LCM. 2 That is close to

ten percent of the entire population. 3 And as a result,

there are hundreds of millions of LCMs in circulation

across the United States today—nearing one billion. 4

None of this should be remotely surprising, because

LCMs are a standard part of America’s most popular

firearms. That is so for semi-automatic handguns (like

the Glock pistol) as well as semi-automatic rifles (like

the AR-15). 5 In so many words, LCMs are the most

common component of America’s most common guns. 6

More important, LCMs are wildly popular among

Americans, because Americans rely on them for lawful

2 William English, 2021 National Firearms Survey: Analysis

of Magazine and Ownership and Use 20 (May 4, 2023),

https://perma.cc/DV55-QT88.

3 Nat’l Shooting Sports Found., Detachable Magazine Report

1990-2021, at 4 (2024), https://perma.cc/FV8E-DDKG.

4

Id. at 2; see also, e.g., William English, 2021 National

Firearms Survey: Updated Analysis Including Types of Firearms

Owned 20 (May 13, 2022), https://perma.cc/K9CR-JYZJ.

5 Duncan, 83 F.4th at 813 (Bumatay, J., dissenting from grant

of stay pending appeal) (handguns); Duncan v. Bonta, 19 F.4th

1087, 1155 & n.25 (9th Cir. 2021) (Bumatay, J., dissenting)

(rifles); see DOJ, Guns in America: National Survey on Private

Ownership and Use of Firearms, at 5 (May 1997) (growing trend

is for LCMs to become standard issue).

6 Heller II, 670 F.3d at 1261 (“We think it clear enough … that

semi-automatic rifles and magazines holding more than ten

rounds are indeed in ‘common use.’”); see Staples v. United States,

511 U.S. 603, 610-12 (1994) (semi-automatic rifles like AR-15s as

“commonplace,” “generally available,” and “widely accepted as

lawful possessions”); Garland v. Cargill, 602 U.S. 406, 429-30

(2024) (Sotomayor, J., dissenting) (“semiautomatic rifles” are

“commonly available”).

18

purposes. Surveys reveal that Americans have chosen

LCMs for a wide-ranging set of lawful objectives, such

as hunting (47%), recreational target shooting (64%),

and competitive shooting sports (27%). 7 But more than

anything else, the vast majority (71%) of LCM-owners

bought them for “defensive purposes … making [that]

the most common reason cited for [their] ownership.” 8

For good reason. It is proven that having sufficient

ammunition—and not having to reload—is critical to

not only repelling assailants, but also deterring those

attacks in the first place. 9 Every year, there are

hundreds, if not thousands, of cases where LCMs were

used by law-abiding Americans to defend themselves

and their families. 10 And a majority of such incidents

involved multiple attackers, where semi-automatic

handguns—the driving source of LCM-ownership

among Americans—are the primary tool of response. 11

These are not just statistics. Take just one example.

In 2019, two masked men broke into Jeremy King’s

home in Florida. They grabbed his 11-year-old

daughter, demanded money, and proceeded to beat

King within an inch of his life. Before they could kill

him (and perhaps his daughter), King’s eight-monthpregnant wife burst into the room with an AR-15 and

repelled the attackers. As King put it: They “came in

7 English, supra note 2, at 4.

8 Id.

9 See, e.g., David B. Kopel, The History of Firearm Magazine

Prohibitions, 78 ALB. L. REV. 849, 851-52 (2015).

10 See, e.g., Heritage Foundation, Defensive Gun Uses in the

U.S., https://perma.cc/UCM4-S8Y6 (Last Updated: Aug. 8, 2024)

11 English, supra note 4, at 26-33.

19

with two normal pistols and my AR stopped it. [My

wife] evened the playing field and kept them from

killing me.” But without an LCM firearm, there is no

telling what would have occurred. 12

In short, there is no serious doubt that LCMs are

today in common use for lawful purposes—indeed, it is

incontrovertible that they are among the “most

popular” magazines in the country, “chosen by

Americans for self-defense.” Heller, 554 U.S. at 629.

2. That settles the constitutional question. The

common-use test asks whether an arm is “commonly

possessed … for lawful purposes today.” Caetano, 577

U.S. at 420 (Alito, J., concurring in the judgment); see

also Heller, 554 U.S. at 582; Bruen, 597 U.S. at 47. And

by any criterion, the answer for LCMs is plainly yes. 13

But that is especially so in light of LCMs’ history:

These magazines are not just in common use today,

but they have been for generations. They are a part of

the American tradition of firearm ownership, which

only exacerbates how severely this ban offends the

Second Amendment.

Indeed, “[t]he desire … for repeating weapons is

almost as old as the history of firearms.” Harold L.

12 Dave Jordan, Victim of Home Invasion Speaks; Credits Wife

With Saving His Life With AR-15, SpectrumNews Florida

(November 1, 2019, 4:37 PM), https://perma.cc/F4AL-L2K8.

13 Again, the “common use” test asks what arms the people

have put to lawful use—not what arms they really need or, as

some courts ask here, how many bullets are really fired. Compare

Pet.App.10 (citing similar cases asking just that), with Friedman,

577 U.S. at 1042 (Thomas, J., dissenting from denial) (Second

Amendment prohibits “bans” on “firearms commonly used for a

lawful purpose—regardless of whether alternatives exist.”).

20

Peterson, Arms and Armor in Colonial America 15261783, at 215 (1956). And given this demand, firearms

capable of firing more than ten rounds have been in

circulation for centuries. The first such firearm able to

fire over ten rounds without reloading was a sixteenshooter invented during the first Queen Elizabeth. See

David B. Kopel, The History of Firearm Magazine

Prohibitions, 78 ALB. L. REV. 849, 852 (2015). And this

sort of firearm rapidly grew in popularity across

England—and soon after, its colonies. Id. at 852-53.

It did not take long for firearms with ten-plus-round

capacities to become prevalent in America. In 1722,

there was the first mention of a firearm here that

“though loaded but once … was discharged eleven

times following, with bullets, in the space of two

minutes.” Peterson, supra, at 215. At the Founding,

the premier firearm was the Girandoni rifle—an air

rifle with a twenty-two-shot magazine capacity, then

known for being at the side of Merriweather Lewis on

his journey west. Kopel, supra, at 853. And in the

period between the ratifications of the Second and

Fourteenth Amendments, firearms with ten-plusround capacities proliferated. Id. at 853-56 (describing

advances in firearms, such as the “pepperbox” pistol,

which was able to fire 24-rounds without reloading);

see also Clayton E. Cramer & Joseph Edward Olson,

Pistols, Crime, and Public Safety in Early America, 44

WILLAMETTE L. REV. 699, 716 (2008) (“It is certainly

true that firearms technology has advanced since

1791—but not as much as some would like to think.”).

By the time of Reconstruction, “magazines of more

than ten rounds [were] very commonly possessed in

the United States.” Kopel, supra, at 871. And that

trend continued unabated for decades. Id. at 857-59 &

21

nn. 82, 88 (“The twentieth century saw improvements

on the designs pioneered in the 1800s and expanding

popularity for firearms with more than ten rounds.”).

Revealingly, during this entire period, there is not a

single example—not one—of any ban on any magazine

(to say nothing of one in common use). “From the

colonial period to the dawn of American independence

on July 4, 1776, and through the ratification of the

Fourteenth Amendment, there were no prohibitions

on magazines. Indeed, the first magazine prohibition

did not appear until the alcohol prohibition era in

1927.” Id. at 870. (And of those prohibition-era bans,

all-but-one of them has since been repealed.) Even

today, Rhode Island’s ban is a serious outlier: LCMs

are legal in a super-majority of the states, as well as

under federal law. Duncan, 83 F.4th at 814 (Bumatay,

J., dissenting from the grant of stay pending appeal).

***

This case presents an opportunity to vindicate a

fundamental constitutional principle: the government

may not totally ban an arm that the people have put

into common use for lawful purposes.

And this case presents an ideal vehicle to do so. By

any definition, LCMs are in lawful common use: They

are exceedingly popular today; and have been since the

Lincoln Administration. This case thus cleanly tees up

the legal issue—whether a ban on an arm in common

use is constitutional—without any threshold fight as

to whether the at-issue arm is actually in common use.

There is also no reason for this Court to wait a Term

more to address this issue. While the federal circuits

are not yet split on the question here, that is a product

of geography more than law; it just so happens that

22

states that are more willing to enact bans, sit within

circuits that are more willing to uphold them. But this

issue has still fiercely divided panels’ worth of judges,

who have aired out the competing legal positions in

scholarly opinions. Supra at 14-15 (collecting

dissents). Simply put, there is nothing left to percolate:

The competing views have been presented; it now falls

to this Court to say which camp is correct.

As a practical matter, the only consequence of delay

will be that millions upon millions of law-abiding

Americans will continue to be deprived of their Second

Amendment rights—the precise sort of irreparable

constitutional injury that warrants the immediate

relief sought here. See, e.g., Ezell v. City of Chicago,

651 F.3d 684, 699 (7th Cir. 2011) (deprivation of

Second Amendment rights constitutes irreparable

harm). States are increasingly adopting categorical

bans on arms that Americans have a right to possess.

And these states have received the blessing of the

federal courts, who—in the more candid parts of their

opinions—have just insisted that Americans simply

don’t need arms like AR-15s or LCMs. See, e.g.,

Pet.App.10. But that is precisely the sort of judgment

call that the Second Amendment “take[s] out of the

hands of government”—including its judges—and

places with the people. Heller, 554 U.S. at 634.

23

CONCLUSION

This Court should grant the petition and reverse.

September 5, 2024

Respectfully submitted,

LAWRENCE G. KEANE

SHELBY BAIRD SMITH

NATIONAL SHOOTING

SPORTS FOUNDATION, INC.

400 N. Capitol St., NW

Washington, DC 20001

NOEL J. FRANCISCO

Counsel of Record

ANTHONY J. DICK

HARRY S. GRAVER

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

njfrancisco@jonesday.com

ANDREW E. LELLING

JONES DAY

100 High St., 21st Floor

Boston, MA 02110

Counsel for Amicus Curiae