Petition for Writ of Certiorari — Gabriel Gray, et al., Petitioners v. Kathy Jennings, Attorney General of Delaware, et al.

Supreme Court briefSep 16, 2024

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NO. ______

In the

Supreme Court of the United

States

________________

GABRIEL GRAY, et al.,

Petitioners,

KATHY JENNINGS, in her Official Capacity as

Attorney General of Delaware, et al.,

Respondents.

________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

DAVID H. THOMPSON

BRADLEY P. LEHMAN

Counsel of Record

GELLERT SEITZ

BUSENKELL & BROWN LLC PETER A. PATTERSON

JOHN D. OHLENDORF

1201 N. Orange Street,

COOPER & KIRK, PLLC

Ste. 300

1523 New Hampshire

Wilmington, DE 19801

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Petitioners

September 16, 2024

QUESTION PRESENTED

Whether the infringement of Second Amendment

rights constitutes per se irreparable injury.

PARTIES TO THE PROCEEDING

This petition arises from three cases consolidated

in the district court and the court of appeals.

In the first case, No. 23-1633 in the court of

appeals and No. 22-cv-1500 in the district court,

Petitioners are Gabriel Gray, William Taylor,

DJJAMS LLC, Firearms Policy Coalition, Inc., and

Second Amendment Foundation. Petitioners were

plaintiffs in the district court and appellants in the

court of appeals. The Respondent in the first case is

Kathy Jennings, in her official capacity as Attorney

General of Delaware, who was the defendant in the

district court and appellee in the court of appeals.

In the second case, No. 23-1634 in the court of

appeals and No. 23-cv-33 in the district court,

Petitioners are Christopher Graham, Owen Stevens,

Firearms Policy Coalition, Inc., and Second

Amendment Foundation. Petitioners were plaintiffs

in the district court and appellants in the court of

appeals. Respondent Jennings was also the defendant

in the district court and the appellee in the court of

appeals in this case.

These two cases were consolidated in the district

court and court of appeals with a third case, No. 231641 in the court of appeals and No. 22-cv-951 in the

district court. In this third case, the plaintiffs in the

district court and appellants in the court of appeals

were Delaware State Sportsmen’s Association, Inc.,

Bridgeville Rifle & Pistol Club, Ltd., Delaware Rifle

and Pistol Club, Delaware Association of Federal

Firearms Licensees, Madonna M. Nedza, Cecil Curtis

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

Vickie Lynn Prickett, and Frank M. Nedza. The

iii

Delaware Department of Safety and Homeland

Security, Nathanial McQueen Jr., in his official

capacity as Cabinet Secretary of the Delaware

Department of Safety and Homeland Security, and

Colonel Melizza A. Zebley, in her official capacity as

Superintendent of the Delaware State Police, were the

defendants in the district court and appellees in the

court of appeals in this case. Pursuant to this Court’s

Rule 12.6, these parties are deemed Respondents in

this proceeding.

CORPORATE DISCLOSURE STATEMENT

DJJAMS, LLC, has no parent corporation, and

there is no publicly held corporation that owns 10% or

more of its stock.

Firearms Policy Coalition, Inc., has no parent

corporation, and there is no publicly held corporation

that owns 10% or more of its stock.

Second Amendment Foundation has no parent

corporation, and there is no publicly held corporation

that owns 10% or more of its stock.

RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Gray v. Attorney General Delaware, No. 231633 (3d Cir.) (judgment entered July 15,

2024).

•

Graham v. Attorney General Delaware, No.

23-1634 (3d Cir.) (judgment entered July

15, 2024).

•

Delaware State Sportsmen’s Ass’n v.

Delaware Dep’t of Safety & Homeland Sec.,

No. 23-1641 (3d Cir.) (judgment entered

July 15, 2024).

•

Gray v. Jennings, No. 22-cv-1500 (D. Del.)

(preliminary injunction denied Mar. 27,

2023).

•

Graham v. Jennings, No. 23-cv-33 (D. Del.)

(preliminary injunction denied Mar. 27,

2023).

•

Delaware State Sportsmen’s Ass’n v.

Delaware Dep’t of Safety & Homeland Sec.,

No. 22-cv-951 (D. Del.) (preliminary

injunction denied Mar. 27, 2023).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... iv

RELATED PROCEEDINGS ....................................... v

TABLE OF AUTHORITIES.................................... viii

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 3

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED.................................... 3

STATEMENT .............................................................. 3

Delaware’s Bans on Common Firearms and

Magazines. ........................................................... 3

II.

The Bans’ Impact on Petitioners. ....................... 6

III. The Proceedings Below. ...................................... 7

REASONS FOR GRANTING THE WRIT ................ 11

The Federal Courts of Appeals Are Divided

over Whether The Infringement of Second

Amendment Rights Constitutes Per Se Irreparable Injury. .......................................................... 11

The Seventh and Ninth Circuits Have Held

that the Infringement of Second Amendment Rights Necessarily Constitutes Irreparable Injury. ............................................ 12

vii

II.

By contrast, the Decision Below held that

Infringement of Second Amendment Rights

Does Not Necessarily Amount to Irreparable Injury. .................................................. 14

The Decision Below Conflicts with this Court’s

Decisions by Subjecting the Second Amendment

to a Different, and Less Protective, Body of

Rules than Other Constitutional Rights. ......... 15

III. This Case Presents an Ideal Opportunity To Resolve the Conflict and Confusion in the Lower

Courts over the Extent to Which Constitutional

Violations Inflict Per Se Irreparable Harm. ..... 24

CONCLUSION .......................................................... 28

APPENDIX

Opinion of the United States Court of Appeals for the

Third Circuit, July 15, 2024...................................... 1a

Memorandum Opinion of the United States District

Court for the District of Delaware,

March 27, 2023 ........................................................ 53a

Constitutional Provisions and Statutes

Involved ................................................................... 93a

viii

TABLE OF AUTHORITIES

CASES

Page

ACLU of Ky. v. McCreary Cnty.,

354 F.3d 438 (6th Cir. 2003) .......................... 25

American Trucking Ass’ns v. City of Los Angeles,

559 F.3d 1046 (9th Cir. 2009) ........................ 25

Amoco Prod. Co. v. Village of Gambell,

480 U.S. 531 (1987)......................................... 23

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015)......................................... 28

Baird v. Bonta,

81 F.4th 1036 (9th Cir. 2023) ......... 2, 13, 14, 25

Brewer v. West Irondequoit Cent. Sch. Dist.,

212 F.3d 738 (2d Cir. 2000) ............................ 25

Bronx Household of Faith v. Board of Educ.

of N.Y.C.,

331 F.3d 342 (2d Cir. 2003) ...................... 26, 28

Brown v. California Dep’t of Transp.,

321 F.3d 1217 (9th Cir. 2003) ........................ 24

Campbell v. Miller,

373 F.3d 834 (7th Cir. 2004) .......................... 26

Caplin & Drysdale, Chartered v. United States,

491 U.S. 617 (1989)......................................... 23

Cate v. Oldham,

707 F.2d 1176 (11th Cir. 1983) ................ 24, 27

Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290 (D.C. Cir. 2006)................... 24, 27

Ciechon v. City of Chicago,

634 F.2d 1055 (7th Cir. 1980) ........................ 26

Covino v. Patrissi,

967 F.2d 73 (2d Cir. 1992) .............................. 25

Deerfield Med. Ctr. v. City of Deerfield Beach,

661 F.2d 328 (5th Cir. Unit B Nov. 1981)...... 25

District of Columbia v. Heller,

554 U.S. 570 (2008)............................. 20, 21, 22

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 214 (2022)............................. 13, 14, 25

eBay Inc. v. MercExchange, LLC,

547 U.S. 388 (2006)......................................... 27

Elrod v. Burns,

427 U.S. 347 (1976)........................... 1, 3, 21, 24

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) ... 2, 12, 13, 21, 25,

Grace v. District of Columbia,

187 F. Supp. 3d 124 (D.D.C. 2016)................. 20

Ingebretsen ex rel. Ingebretsen v. Jackson Pub.

Sch. Dist.,

88 F.3d 274 (5th Cir. 1996) ............................ 24

Iowa Right to Life Comm., Inc. v. Williams,

187 F.3d 963 (8th Cir. 1999) .......................... 24

Jolly v. Coughlin,

76 F.3d 468 (2d Cir. 1996) .............................. 25

McCreary Cnty., Ky v. ACLU of Ky.,

545 U.S. 844 (2005)......................................... 25

Mitchell v. Cuomo,

748 F.2d 804 (2d Cir. 1984) ...................... 25, 26

Monterey Mech. Co. v. Wilson,

125 F.3d 702 (9th Cir. 1997) .................... 25, 26

National People’s Action v. Village of Wilmette,

914 F.2d 1008 (7th Cir. 1990) ........................ 24

New York Mag. v. Metropolitan Transp. Auth.,

136 F.3d 123 (2d Cir. 1998) ............................ 24

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

597 U.S. 1 (2022) ............ 2, 8, 15, 16, 17, 22, 23

Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd.,

354 F.3d 249 (4th Cir. 2003) .......................... 24

Pacific Frontier v. Pleasant Grove City,

414 F.3d 1221 (10th Cir. 2005) .......... 24, 27, 28

Planned Parenthood of Minn., Inc. v. Citizens

for Cmty. Action,

558 F.2d 861 (8th Cir. 1977) .......................... 25

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) ............................ 2, 3, 16, 24

Siegel v. LePore,

234 F.3d 1163 (11th Cir. 2000) ...................... 25

Tandon v. Newsom,

593 U.S. 61 (2021) .................... 2, 16, 17, 26, 27

Tenafly Eruv Ass’n v. Borough of Tenafly,

309 F.3d 144 (3d Cir. 2002) ............................ 24

Tucker v. City of Fairfield,

398 F.3d 457 (6th Cir. 2005) .......................... 24

Uzuegbunam v. Preczewski,

592 U.S. 279, 141 S. Ct. 792 (2021) ........... 1, 19

Vaquería Tres Monjitas, Inc. v. Irizarry,

587 F.3d 464 (1st Cir. 2009) ........................... 24

Winter v. NRDC,

555 U.S. 7 (2008) ........................................ 1, 23

Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017)......................... 20

Zepeda v. INS,

753 F.2d 719 (9th Cir. 1983) .......................... 25

CONSTITUTIONAL PROVISIONS AND STATUTES

18 U.S.C.

§ 922(g)(1) ......................................................... 6

DEL. CODE ANN. tit. 11,

§ 1465 ................................................................ 4

§ 1465(2) ............................................................ 4

§ 1465(3) ............................................................ 4

§ 1465(4) ............................................................ 4

§ 1465(6)(a) ....................................................... 4

§ 1465(6)(c) .................................................... 4, 5

§ 1466 ................................................................ 4

§ 1466(a) ............................................................ 5

§ 1466(b) ............................................................ 5

§ 1466(c)(3) ........................................................ 5

§ 1466(d) ............................................................ 6

§ 1468(2) ............................................................ 5

§ 1469(a) ............................................................ 6

§ 1469(b) ............................................................ 6

§ 1469(c) ............................................................ 6

§ 1469(c)(7) ........................................................ 6

§ 1469(d) ............................................................ 6

§ 4205(b)(4) ....................................................... 6

§ 4205(b)(5) ....................................................... 6

xii

OTHER AUTHORITIES

1 ANNALS OF CONG. (1789) .......................................... 2

4 JOHN NORTON POMEROY, A TREATISE ON EQUITY

JURISPRUDENCE (3d ed. 1905)................... 17, 18

2 JOSEPH STORY, COMMENTARIES ON EQUITY

JURISPRUDENCE (13th ed. 1886) ... 17, 18, 19, 20

F.W. MAITLAND, EQUITY AND THE FORMS OF ACTION

(1920)............................................................... 18

PETITION FOR WRIT OF CERTIORARI

The Constitution guarantees individual rights

that are fundamental and inalienable; it does not

promulgate a schedule of compensation the Government must pay if it wishes to restrict speech, engage

in unreasonable searches, or ban the possession of

common firearms. This Court has accordingly recognized that the rights secured by our fundamental

charter belong to a class of “important, but not easily

quantifiable, nonpecuniary rights” that are “not readily reducible to monetary valuation.” Uzuegbunam v.

Preczewski, 592 U.S. 279, 141 S. Ct. 792, 800 (2021).

And from these two foundational principles a third follows: in a suit for the violation of one of these fundamental constitutional rights, the remedy at law—

money damages—is wholly inadequate, due to the intangible nature of the harm that has been suffered. As

this Court has stated in the context of the Freedom of

Speech, “[t]he loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.

347, 373 (1976) (plurality). And so long as the other

traditional factors are met, see Winter v. NRDC, 555

U.S. 7, 32 (2008), that irreparable injury will justify a

preliminary injunction putting a halt to the constitutional violation while the case progresses.

The panel below acknowledged that this is the

rule that applies under the First Amendment—in step

with every other federal court of appeals—but it somehow concluded that it does not apply to the Second

Amendment. It accordingly declined to enjoin Delaware’s bans on common firearms and magazines

(which the State dubs “assault weapons” and “large

capacity magazines”) without even inquiring into

whether those bans are likely unconstitutional, based

on Petitioners’ failure to establish an irreparable

harm other than the loss of their Second Amendment

rights. App.19a. That refusal to treat the harm inflicted by the loss of Second Amendment rights as per

se irreparable squarely conflicts with the decisions of

the Seventh and Ninth Circuits, which have held that

the irreparability analysis “does not change where the

constitutional violation at issue is a Second Amendment violation,” Baird v. Bonta, 81 F.4th 1036, 1046

(9th Cir. 2023), since “[t]he Second Amendment protects similarly intangible and unquantifiable interests,” Ezell v. City of Chicago, 651 F.3d 684, 699 (7th

Cir. 2011). And by treating violations of the First

Amendment as inherently irreparable but not violations of the Second, the decision below demotes the

right to keep and bear arms to “a second-class right,

subject to an entirely different body of rules than the

other Bill of Rights guarantees.” New York State Rifle

& Pistol Ass’n v. Bruen, 597 U.S. 1, 70 (2022) (quoting

McDonald v. City of Chicago, 561 U.S. 742, 780 (2010)

(plurality)).

No monetary damages can adequately compensate a plaintiff for the loss of his inalienable constitutional rights. The Framers charged this Court and the

Nation’s other “independent tribunals of justice” with

“resist[ing] every encroachment upon rights expressly

stipulated for in the Constitution by the declaration of

rights,” 1 ANNALS OF CONG. 439 (1789) (statement of

Rep. James Madison)—not with standing clear of

open encroachments so long as the Government pays

its way. This Court has repeatedly recognized this

principle in the context of the First Amendment, Tandon v. Newsom, 593 U.S. 61, 64 (2021) (per curiam);

Roman Catholic Diocese of Brooklyn v. Cuomo, 592

U.S. 14, 19 (2020) (per curiam); Elrod, 427 U.S. at 373

(plurality), but it has not explained its reasoning at

significant length. The brevity of this Court’s decisions on the subject has led to confusion—and now,

direct conflict—in the courts of appeals over the principle’s nature and scope. This Court should grant the

writ and clarify that the loss of Second Amendment

freedoms, too, necessarily constitutes irreparable injury.

OPINIONS BELOW

The panel of the Court of Appeals is reported at

108 F.4th 194 and reproduced at App.1a. The order of

the District Court declining to grant Petitioners’ motion for a preliminary injunction is reported at 664 F.

Supp. 3d 584 and reproduced at App.53a.

JURISDICTION

The Court of Appeals issued its judgment on July

15, 2024. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The relevant portions of Amendments II and XIV

to the United States Constitution and of the Delaware

Code are reproduced in the Appendix beginning at

App.93a.

STATEMENT

Delaware’s Bans on Common Firearms and

Magazines.

The State of Delaware deems scores of common

semiautomatic firearms “assault weapons”—and bans

them outright. DEL. CODE ANN. tit. 11, §§ 1465, 1466.

“The list of prohibited firearms is long. It includes (1)

forty-four enumerated semi-automatic ‘assault long

gun[s],’ including the AR-15, AK-47, and Uzi, (2) nineteen specifically identified semi-automatic ‘assault

pistol[s],’ and (3) ‘copycat weapon[s].’ ” App.57a (citations omitted); see DEL. CODE ANN. tit. 11, §§ 1465(2),

(3) & (4). “Copycat weapons” are defined to include

any semiautomatic, centerfire rifle that has at least

one of the following features:

A folding or telescoping stock.

2. Any grip of the weapon, including a pistol grip, a thumbhole stock, or any other

stock, the use of which would allow an individual to grip the weapon, resulting in any

finger on the trigger hand in addition to the

trigger finger being directly below any portion of the action of the weapon when firing.

A forward pistol grip.

A flash suppressor.

A grenade launcher or flare launcher.

DEL. CODE ANN. tit. 11, § 1465(6)(a). “Copycat weapons” also include any semiautomatic pistol that “can

accept a detachable magazine” and has at least one of

the following features:

1. [A]n ability to accept a detachable ammunition magazine that attaches at some location outside of the pistol grip.

2. A threaded barrel capable of accepting a

flash suppressor, forward pistol grip or silencer.

3. A shroud that is attached to, or partially

or completely encircles, the barrel and that

permits the shooter to fire the firearm without being burned, except a slide that encloses the barrel.

A second hand grip.

Id. § 1465(6)(c).

Delaware bans any person from manufacturing,

selling, purchasing, receiving, possessing, or transporting into the State one of these firearms, unless

they belong to a narrow class of favored individuals

such as U.S. Government personnel, members of the

armed forces, and law enforcement officers. Id.

§ 1466(a), (b). Ordinary citizens may transport, possess, purchase, or receive the banned firearms only if

they lawfully possessed or purchased them before

June 30, 2022, and only in specified circumstances. Id.

§ 1466(c)(3).

Delaware also bans common, standard-sized firearm ammunition magazines. The state defines “any

ammunition feeding device capable of accepting, or

that can readily be converted to hold, more than 17

rounds of ammunition” as a so-called “Large-capacity

magazine.” Id. § 1468(2). Again, it is unlawful for anyone who does not fit within a narrow category of favored, exempt individuals to “manufacture, sell, offer

for sale, purchase, receive, transfer, or possess” one of

the banned magazines. Id. §§ 1469(a), (c). Unlike with

the banned semiautomatic firearms, even individuals

who lawfully owned one of the banned magazines before the ban took effect must now dispose of them—

by, for example, having the magazine “permanently

modified to accept 17 rounds of ammunition or less,”

or by relinquishing the magazine to the Delaware Department of Safety and Homeland Security through a

buyback program. See id. §§ 1469(c)(7), (d).

Violation of Delaware’s semiautomatic firearm

ban is punishable by up to 8 years in prison, see id.

§§ 1466(d), 4205(b)(4), and results in a lifetime disqualification from owning firearms and ammunition,

see 18 U.S.C. § 922(g)(1). Violation of Delaware’s magazine ban is punishable by a fine of $100 for the first

violation, forfeiture of the magazine, and penalties

ranging up to 5 years imprisonment for subsequent

violations. See DEL. CODE ANN. tit. 11, §§ 1469(b),

4205(b)(5).

II.

The Bans’ Impact on Petitioners.

Petitioners Gray, Taylor, Graham, and Stevens

are law-abiding United States citizens and residents

of Delaware. Pls’. App’x at 296–97, 621–22, 636–37,

DSSA v. Att’y Gen. of Del., No. 23-1633 (3d Cir. July

3, 2023), ECF No. 30-1 (“3d Cir. App’x”). Petitioners

Gray and Taylor wish to acquire, possess, and use for

lawful purposes the common semiautomatic firearms

Delaware bans, and they would do so were it not for

the State’s ban on that conduct. Id. at 296, 621–22.

Petitioners Graham and Stevens both own firearms

capable of being equipped with greater-than-seventeen-round magazines, and they wish to purchase

such magazines, yet they are forced to refrain from doing so solely because of the State’s ban on that conduct. Id. at 636–37.

Petitioner DJJAMS LLC is a federally licensed

firearm dealer operating in Delaware. Id. at 293, 622.

Many current and prospective customers wish to purchase the firearms Delaware bans as “assault weapons” from DJJAMS, and DJJAMS wishes to sell those

common semiautomatic firearms to them. Id. at 622–

23. It refrains from doing so only because it reasonably fears enforcement of Delaware’s ban on that conduct. Id. at 293, 622–23. As a result of the ban, it has

been forced to turn away prospective customers wishing to purchase the banned firearms, and it has experienced a notable decline in revenue. Id. at 293, 623.

Petitioners Firearms Policy Coalition and Second

Amendment Foundation are two associations organized for the purpose of promoting, preserving, and

defending constitutional rights, including the right to

keep and bear arms. Id. at 623–25, 637. Both associations have members in Delaware who wish to purchase and possess the banned semiautomatic firearms

and ammunition magazines and would do so but for

the challenged provisions. Id.

III. The Proceedings Below.

1. Petitioners Gray, Taylor, DJJAMS, Firearms

Policy Coalition, and Second Amendment Foundation

filed suit challenging Delaware’s ban on certain semiautomatic firearms on November 16, 2022. Id. at 600–

28. Petitioners Graham, Stevens, Firearms Policy Coalition, and Second Amendment Foundation filed suit

challenging Delaware’s magazine ban on January 12,

2023. Id. at 633–57. Both cases were consolidated

with Delaware State Sportsmen’s Ass’n v. Delaware

Department of Safety and Homeland Security, another

suit pending in the same court that challenged both

the firearms and magazine bans. The district court

had jurisdiction over all three consolidated actions under 28 U.S.C. §§ 1331 and 1343.

Prior to consolidation, Petitioners Gray, Taylor,

DJJAMS, Firearms Policy Coalition, and Second

Amendment Foundation, and the plaintiffs in the Delaware State Sportsmen’s Association case, had each

respectively sought preliminary injunctive relief

against the challenged bans. 3d Cir. App’x at 283–84,

629–30. And when their suit against the magazine

ban was likewise consolidated with the other two challenges, Petitioners Graham, Stevens, Firearms Policy

Coalition, and Second Amendment Foundation joined

the pending motion for a preliminary injunction

against that ban. Id. at 596. On March 27, 2023, the

district court entered an opinion and order refusing to

preliminarily enjoin either of the challenged bans.

The district court correctly concluded that both

the firearm and ammunition bans apply to firearms

and ammunition magazines that are protected by the

Second Amendment because they are “ ‘arms’ within

the meaning of the Second Amendment” and are “ ‘in

common use’ for lawful purposes that include self-defense.” App.66a–68a, 72a–75a. While these determinations should have mandated judgment for Petitioners under Heller and Bruen, the district court nonetheless went on to ask whether Delaware could “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” App.75a (quoting Bruen, 597 U.S. at

24).

It answered that question in the affirmative, concluding that the banned firearms and magazines “implicate dramatic technological change and unprecedented societal concerns,” due to the purported “rise

in the yearly rate of public mass shootings over the

past four decades” and the features that supposedly

render the banned arms “exceptionally dangerous.”

App.79a–82a. It further reasoned that Delaware’s ban

was “relevantly similar” to a cobbled-together collection of historical laws—including mid-nineteenth-century laws that restricted the carry (but not the possession) of “Bowie knives,” and mid–twentieth-century

restrictions on “[f]ully automatic” machine guns.

App.82a–83a, 85a. Accordingly, the court held that

Petitioners were unlikely to succeed on the merits. It

also concluded that Petitioners failed to show irreparable harm, rejecting their argument that the deprivation of Second Amendment rights necessarily constitutes an irreparable injury. App.89a–91a.

2. Petitioners and the Delaware State Sportsmen’s Association plaintiffs all appealed, and their appeals were consolidated in the Third Circuit. On July

14, 2024, that court affirmed. The principal opinion

for the panel “express[ed] no view of the merits” of Petitioners’ Second Amendment challenge. Instead, the

panel concluded that the district court had been correct to refuse a preliminary injunction based solely on

the non-merits injunction factors.

The panel primarily based its holding on the conclusion that the challengers failed to demonstrate irreparable harm. It began by recounting at length the

history of the preliminary injunction in the English

Court of Chancery and at the Founding, concluding

that it is “an extraordinary remedy” that, strictly

speaking, “is proper only in the rare case when a preliminary injunction is necessary to preserve the effectiveness of the ordinary adjudicatory process.”

App.9a, 11a (cleaned up). The panel acknowledged

that “our sister circuits have presumed harm in various settings,” including the infringement of Second

Amendment rights, but it concluded that those decisions “strayed from” the correct understanding of the

preliminary injunction. App.11a, 17a.

The panel also recognized that the Third Circuit

had indeed deemed “constitutional harms irreparable” in previous cases; but it insisted that those precedents all fell within an “exception to our rule: we presume that First Amendment harms are irreparable.”

App.17a–18a. That exception, according to the panel,

was justified by “[u]nique First Amendment doctrines” and does not apply in the context of any other

constitutional rights. Id. And given this reframing of

the highly limited availability of preliminary injunctive relief, the panel concluded that Petitioners “claim

of irreparable harm collapses.” App.19a. It further

concluded that the remaining equitable factors also

militated against preliminary relief, reasoning that

“[t]here is always a public interest in prompt execution of the laws” and that “[a]ny time a State is enjoined by a court from effectuating statutes enacted by

representatives of its people, it suffers a form of irreparable injury.” App.22a (cleaned up).

3. Judge Roth concurred. In addition to concluding that the non-merits injunction factors weighed

against preliminary relief, she would have held that

the challenged bans are likely constitutional under

the Second Amendment. In her view, “the ‘bearable

arms’ presumptively protected by the Second

Amendment are limited to weapons used explicitly for

self-defense,” such that if a challenger cannot show

that “the weapon in question is suitable for, owned for,

and actually used in self-defense,” it is not protected

at all. App.34a–36a. And even arms that are used for

self-defense according to these metrics, Judge Roth

maintained, are still not necessarily protected by the

Second Amendment: for “even though a weapon might

be useful in civilian and military contexts, a weapon

that is ‘most’ suited for military use falls outside the

scope of ‘Arms’ protected by the Second Amendment.”

App.41a. Judge Roth would have held that under this

interpretation of the Second Amendment, “none of

the” arms or magazines in question are “ ‘Arms’ presumptively protected by the Second Amendment” because they are “most useful as weapons of war.”

App.42a, 45a.

REASONS FOR GRANTING THE WRIT

The Federal Courts of Appeals Are Divided

Over Whether the Infringement of Second

Amendment Rights Constitutes Per Se Irreparable Injury.

The circuit courts of appeals have split over the

question presented, with two circuits holding that the

infringement of Second Amendment rights necessarily inflicts a harm that is irreparable, and the

Third Circuit, through the panel’s decision below,

holding that the deprivation of Second Amendment

freedoms does not inevitably amount to irreparable

injury.

The Seventh and Ninth Circuits Have

Held that the Infringement of Second

Amendment Rights Necessarily Constitutes Irreparable Injury.

In Ezell v. City of Chicago, the Seventh Circuit

preliminarily enjoined a Chicago ordinance that prohibited the construction of firing ranges within city

limits. Because “[t]he right to possess firearms for protection implies a corresponding right to acquire and

maintain proficiency in their use,” Ezell, 651 F.3d at

704, the court concluded that the city’s ban likely infringed the Second Amendment rights of individuals

who wished to train with firearms in Chicago. And it

followed that the plaintiffs also suffered irreparable

harm:

The loss of a First Amendment right is frequently presumed to cause irreparable

harm based on the intangible nature of the

benefits flowing from the exercise of those

rights; and the fear that, if those rights are

not jealously safeguarded, persons will be

deterred, even if imperceptibly, from exercising those rights in the future. The Second

Amendment protects similarly intangible

and unquantifiable interests. Heller held

that the Amendment’s central component is

the right to possess firearms for protection.

Infringements of this right cannot be compensated by damages.

Id. at 699 (cleaned up). “In short,” the Seventh Circuit

held, “for reasons related to the form of the claim and

the substance of the Second Amendment right, the

plaintiffs’ harm is properly regarded as irreparable

and having no adequate remedy at law.” Id. at 700.

The court thus remanded the case for proceedings on

the merits and “with instructions to enter a preliminary injunction.” Id. at 711.

The Ninth Circuit has similarly held that the infringement of Second Amendment rights constitutes

per se irreparable harm. In Baird v. Bonta, that court

considered a Second Amendment challenge to California’s handgun licensing regime, which “effectively establishes a statewide ban on open carry by ordinary

law-abiding Californians.” 81 F.4th at 1039. The district court denied the challengers’ request to preliminarily enjoin the ban, and in doing so it “declined to

undertake any inquiry into [the] likelihood of success

on the merits of their Second Amendment challenge,”

instead merely “concluding that, because the public

interest and balance of harms disfavored the issuance

of a preliminary injunction, it was ‘not necessary’ to

assess [the] likelihood of success on the merits.” Id. at

1044. The Ninth Circuit held that this refusal to consider likelihood of success was an abuse of discretion.

“The first [injunction] factor—likelihood of success on the merits—is the most important (and usually decisive) one in cases where a plaintiff brings a

constitutional claim,” the Ninth Circuit explained. Id.

at 1041–42. For “[i]f a plaintiff bringing such a claim

shows he is likely to prevail on the merits, that showing will almost always demonstrate he is suffering irreparable harm as well,” id. at 1042, since “ ‘the deprivation of constitutional rights unquestionably constitutes irreparable injury.’ ” Id. at 1042 (quoting

Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d

905, 911 (9th Cir. 2014), abrogated on other grounds

by Dobbs v. Jackson Women’s Health Org., 597 U.S.

214 (2022)). And “[t]his analysis does not change

where the constitutional violation at issue is a Second

Amendment violation because the right to peaceably

bear arms to defend oneself is not ‘a second-class

right, subject to an entirely different body of rules

than the other Bill of Rights guarantees.’ ” Id. at 1046

(quoting McDonald, 561 U.S. at 780 (plurality)).

By Contrast, the Decision Below Held

that Infringement of Second Amendment Rights Does Not Necessarily

Amount to Irreparable Injury.

The panel below expressly departed from the

Seventh and Ninth Circuit’s approach, holding that

the infringement of Second Amendment rights does

not necessarily inflict irreparable harm or warrant

preliminary injunctive relief. Citing the practice of the

English Court of Chancery and Alexander Hamilton’s

observation that equity acts “in extraordinary cases,”

the panel held that preliminary injunctions are generally only warranted when needed “to preserve the

court’s power to render a meaningful decision after a

trial on the merits.” App.5a–7a, 11a (cleaned up).

“Thus,” the panel concluded, “the threat of irreparable

harm does not automatically trigger a preliminary injunction.” App.12a. “Only when the threatened harm

would impair the court’s ability to grant an effective

remedy is there really a need for preliminary relief.”

Id. (cleaned up).

The panel accordingly rejected the proposition—

which it acknowledged was accepted by many of its

“sister circuits”—that “constitutional harms” are per

se “irreparable.” App.17a. That principle, it contended, “would trample on traditional principles of

equity,” “collapse[ ] the four [preliminary injunction]

factors into one,” and lead to “rushed judgment” on the

merits. App.14a–16a. While the panel conceded that

constitutional harms are indeed considered irreparable in the First Amendment context, it concluded that

this practice was an “exception to our rule” that is

“limit[ed] . . . to the First Amendment” and warranted

by “[u]nique First Amendment doctrines.” App.18a–

19a. No such principle, it held, applies in Second

Amendment cases.

The federal courts of appeals that have addressed this question have thus divided 2-1 over

whether the infringement of Second Amendment

rights per se constitutes irreparable harm. That split

in authority impacts the relief available in cases seeking to vindicate the fundamental right to keep and

bear arms, and it is intolerable. Given this division in

the lower courts, a law-abiding citizen who challenges

an Illinois or California law banning him from keeping or carrying common firearms may obtain preliminary relief allowing him to exercise his constitutional

right to protect his home and family while the case is

litigated, while a plaintiff in Delaware or New Jersey

may not. This Court should grant certiorari and resolve this conflict in the lower courts.

II.

The Decision Below Conflicts with this

Court’s Decisions by Subjecting the Second

Amendment to a Different, and Less Protective, Body of Rules than Other Constitutional Rights.

This Court established in McDonald and reaffirmed in Bruen that the Second Amendment may not

be treated as “a second-class right, subject to an

entirely different body of rules than the other Bill of

Rights guarantees.” Bruen, 597 U.S. at 70 (quoting

McDonald, 561 U.S. at 780 (plurality)). The decision

below explicitly flouts that principle, refusing to give

Second Amendment challengers the benefit of the

same principles that unquestionably apply under the

First Amendment. This Court should grant review

and repudiate this latest attempt to demote the Second Amendment to second-class status.

This Court has made clear that the infringement

of First Amendment rights constitutes a per se irreparable injury that, other things being equal, justifies

preliminary injunctive relief. The Court first established that principle in the plurality opinion in Elrod

v. Burns, concluding that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” 427 U.S.

at 373. And more recently, the Court reaffirmed the

principle in two per curiam opinions arising out of the

COVID-19 pandemic.

First, a majority of Justices in Roman Catholic

Diocese of Brooklyn v. Cuomo preliminarily enjoined

New York’s COVID-19 restrictions on public worship

after concluding that “[t]here can be no question that

the challenged restrictions, if enforced, will cause irreparable harm.” 592 U.S. at 19 (per curiam) (citing

Elrod, 427 U.S. at 373 (plurality)); accord id. at 26

(Gorsuch, J., concurring) (rejecting the argument that

even if the challenged restrictions “do violate the Constitution . . . we should stay our hand all the same”);

id. at 31 (Kavanaugh, J., concurring) (“the applicants

have shown[ ] . . . irreparable harm”). And likewise,

the Court enjoined California’s similar restrictions on

religious exercise during the pandemic in Tandon v.

Newsom, again concluding that the challengers were

“irreparably harmed by the loss of free exercise rights

for even minimal periods of time.” 593 U.S. at 64 (per

curiam) (cleaned up).

Indeed, the panel below acknowledged this rule,

conceding that “we presume that First Amendment

harms are irreparable,” yet it refused to apply the

same principle to Second Amendment harms.

App.18a. That result “subject[s]” the right to keep and

bear arms to a different and less protective “body of

rules than the other Bill of Rights guarantees,” Bruen,

597 U.S. at 70 (quoting McDonald, 561 U.S. at 780

(plurality)), contrary to this Court’s repeated instructions.

The proposition that the infringement of substantive constitutional rights inflicts harm that is per

se irreparable, far from “trampl[ing] on traditional

principles of equity,” App.16a, flows directly from

them. From the dawn of the English Court of Chancery onward, “[t]he universal test of the jurisdiction,

admitted alike by the courts of England and of the

United States, is the inadequacy of the legal remedy

of damages.” 4 JOHN NORTON POMEROY, A TREATISE

ON EQUITY JURISPRUDENCE § 1341 (3d ed. 1905). And

one paradigmatic scenario where the available remedies at law are inadequate has always been cases involving harm that is “intangible” in some sense, “the

pecuniary value of which cannot be certainly estimated.” Id. § 1347.

Thus, as Justice Story recounted in his influential treatise, injunctive relief would issue “in the case

of a copyright,” where infringement may “be injuring

[the holder] to an incalculable extent” and “mere

damages would give no adequate relief.” 2 JOSEPH

STORY, COMMENTARIES ON EQUITY JURISPRUDENCE

236–37 (13th ed. 1886). Likewise, “[a]nother intangible kind of property which will be protected from invasion by injunction is ‘good-will,’ ” where again “[t]he

legal remedy would be inadequate, for it would always

be very difficult, if not impossible, to estimate the pecuniary damages upon any certain basis.” POMEROY,

supra, at § 1355 & n.2. And similar reasoning has long

justified injunctive relief or specific performance in

cases involving the breach of contracts for unique parcels of land, F.W. MAITLAND, EQUITY AND THE FORMS

OF ACTION 237–38 (1920), unique goods such as “rare

china or the like,” id. at 239; see also POMEROY, supra,

at § 1402, or unique services, such as a performance

“by an eminent actor, singer, artist, and the like,” id.

§ 1343. In all such cases, the unique nature of the

property or service in question means that the harm

caused by the breach includes an intangible component—above and beyond the “market value” of the

goods, property, or services, MAITLAND, supra, at

238—making it “impossible to arrive at a legal measure of damages at all,” POMEROY, supra, at § 1403, and

thus rendering “the remedy at law of damages . . .

wholly inadequate,” id. § 1343.

The longstanding recognition by the courts that

the infringement of constitutional rights inflicts harm

that is per se irreparable flows from the very same

principles. The Constitution and its amendments

mark out rights that are intangible and inalienable in

nature; they do not set forth a table of monetary tariffs

that the Government must pay if it wishes to engage

in certain conduct. As this Court has explained, constitutional

rights

are

“noneconomic”

and

“nonpecuniary rights,” and their violation thus inflicts

a harm that is “not readily reducible to monetary valuation.” Uzuegbunam, 141 S. Ct. at 800. An American

citizen who is restricted from engaging in political

speech is obviously harmed, but the harm is an intangible one, not a sum certain.

The availability of preliminary injunctive relief

in constitutional rights cases also flows from the

longstanding principle that legal remedies are inadequate for continuing wrongs. As Justice Story explained, while repeated or ongoing violations could in

theory be “recompensed by repeated actions,” “yet a

Court of Equity will interpose” because of “the very

circumstance, that without such interposition the

party can do nothing but repeatedly resort to law.”

STORY, supra, at 211. Thus courts historically would

enjoin an ongoing public nuisance because legal remedies “can only dispose of the present nuisance, and

for future acts new prosecutions must be brought.” Id.

at 225. And equity would similarly interpose itself in

cases where a private trespass was not “only contingent [and] temporary” but was “continued so long as

to become a nuisance.” Id. at 229.

The harm inflicted by an ongoing constitutional

violation is irreparable in the very same way. A plaintiff restrained from engaging in protected speech, or

from worshiping freely, is not injured at a single, discrete point in time that could be remedied by a claim

for damages—even assuming that the injury was tangible and economic in nature. No, such a plaintiff is

injured continuously, every day that the unconstitutional restriction is in effect. “If indeed Courts of Equity did not interfere in cases of this sort, there would

. . . be a great failure of justice in the country.” Id. at

234.

The panel below thought that “[u]nique First

Amendment doctrines” justify “limit[ing] the principle

to the First Amendment,” App.18a–19a but that is not

so. The panel invoked the “heavy presumption against

prior restraints,” claiming that this indicated an understanding that “First Amendment activity, like

weekly worship and political speech, can be especially

time-sensitive.” App.18a (cleaned up). But even assuming that something like this consideration is part

of what underlies the principle that First Amendment

harms are per se irreparable, that does not justify refusing to grant the Second Amendment the benefit of

the same principle, since the rights protected by that

provision can also “be especially time-sensitive.” Id.

“The Second Amendment protects [the] right to

bear firearms for self-defense—a right that can be infringed upon whether or not plaintiffs are ever actually called upon to use their weapons to defend themselves.” Grace v. District of Columbia, 187 F. Supp. 3d

124, 150 (D.D.C. 2016), aff’d sub nom. Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017). Neither the plaintiffs challenging a law that likely violates the Second Amendment nor a court deciding

whether to enjoin it has any way of knowing when the

plaintiffs will be “called upon to use their weapons to

defend themselves.” Id. But such an occasion could

arise at any time—including during the pendency of

the suit—and if and when it does arise, it necessitates

the most acutely “time-sensitive” activity possible: immediate armed self-defense “of one’s home and family.” District of Columbia v. Heller, 554 U.S. 570, 629

(2008) (internal quotation marks omitted). A law-

abiding citizen facing a home invader will find little

comfort in the fact that he retains the possibility of

obtaining a permanent injunction allowing him to

keep and bear arms at the end of his lawsuit, or that

he (or his estate) may later be able to seek compensatory money damages.

The panel’s second reason for limiting the principle of per se irreparable harm to First Amendment

cases—the courts’ historic “deference to sincere religious belief,” App.19a—is even less persuasive. As an

initial matter, this consideration fails utterly to justify the principle in the context where it first arose:

the First Amendment’s Free Speech Clause. See Elrod, 427 U.S. at 373 (plurality). Moreover, the panel

majority never explains why this deference to the sincerity of religious belief has anything at all to do with

the availability of preliminary injunctive relief. Yes,

“courts will not second-guess the[ ] centrality” of “a believer’s religious scruples,” App.19a, but how does

that bear on the question whether the believer should

continue to suffer an infringement of those scruples

while the suit goes forward? In all events, whatever

weight this consideration has in rendering an injury

to First Amendment rights per se irreparable, similar

principles apply to the Second Amendment. The right

to keep and bear arms, too, is “intangible and unquantifiable” and “cannot be compensated by damages.”

Ezell, 651 F.3d at 699. And the Second Amendment,

too, “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.” Heller, 554 U.S. at 634.

Indeed, this final point illustrates perhaps the

most pernicious consequence of the panel’s decision: a

return to the subjective balancing approach applied

by the lower courts for over a decade after Heller until

it was finally interred by Bruen. Under that onceubiquitous “two-step approach,” courts routinely balanced away Second Amendment rights by “defer[ing]”

to the Government’s determinations about “the costs

and benefits of firearms restrictions,” Bruen, 597 U.S.

at 25–26 (quoting McDonald, 561 U.S. at 790–91 (plurality)), in open defiance of this Court’s instruction

that a Second Amendment “guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all,” Heller, 554 U.S. at 634. The

Court did away with this balancing approach in

Bruen, but the decision below affirmatively invites

courts to withhold relief in Second Amendment cases

based on precisely the same balancing exercise. Even

where a challenged restriction obviously burdens conduct protected by the Second Amendment’s text in a

way unjustified by history, all a court need do to justify denying an injunction is find that the challenger’s

Second Amendment rights are unimportant or not

time sensitive, invoke the supposed threat to public

safety that would ensue were the restriction enjoined,

and—hey Presto!—“arrive[ ] at [its] interest-balanced

answer” and decline relief. Id.

Worse still, the panel’s reasoning appears to lead

to the conclusion that such a balancing exercise could

justify even the refusal of a permanent injunction at

the conclusion of the case. The panel insisted that its

analysis “d[id] not decide . . . whether the challengers

should get a permanent injunction if they win on the

merits” and suggested that the test for “permanent injunctions” was somehow different because it “focus[es]

not on preserving the case and avoiding interim

harms, but on whether the remedy at law is adequate.” App.21a. But that attempt to create a cleavage

between the preliminary and permanent injunction

standards is flatly contrary to settled law.

As this Court has held time and again, “[t]he

standard for a preliminary injunction is essentially

the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of

success on the merits rather than actual success.”

Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531,

546 n.12 (1987); accord Winter, 555 U.S. at 32. And

because both types of injunction unquestionably require a showing of irreparable harm, the panel’s reasoning that Second Amendment harms cannot be

deemed per se irreparable would appear to lead inexorably to the denial of permanent injunctions as well

as preliminary ones, notwithstanding its empty protestations to the contrary.

The panel’s decision thus necessarily erects a “hierarchy among[ ] constitutional rights,” Caplin &

Drysdale, Chartered v. United States, 491 U.S. 617,

628 (1989)—treating the First Amendment as a cherished heir and relegating the Second to the status of

an ill-favored cousin. The Court should grant review

and repudiate this attempt to subject the Second

Amendment “to an entirely different body of rules

than the other Bill of Rights guarantees.” Bruen, 597

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

III. This Case Presents an Ideal Opportunity to

Resolve the Conflict and Confusion in the

Lower Courts Over the Extent to Which

Constitutional Violations Inflict Per Se Irreparable Harm.

This case also provides the Court with an opportunity to address a broader issue in constitutional litigation: how courts should analyze the irreparable

harm injunction factor in constitutional challenges

more generally. As noted, this Court has made clear

that First Amendment violations inflict per se irreparable harm, see Roman Catholic Diocese of Brooklyn,

592 U.S. at 19 (per curiam); Elrod, 427 U.S. at 373

(plurality), and all of the regional courts of appeals

have applied the principle in that context to at least

some extent, see Vaquería Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 484 (1st Cir. 2009); New York

Mag. v. Metropolitan Transp. Auth., 136 F.3d 123, 127

(2d Cir. 1998); Tenafly Eruv Ass’n v. Borough of

Tenafly, 309 F.3d 144, 178 (3d Cir. 2002); Newsom ex

rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d

249, 261 (4th Cir. 2003); Ingebretsen ex rel. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th

Cir. 1996); Tucker v. City of Fairfield, 398 F.3d 457,

464 (6th Cir. 2005); National People’s Action v. Village

of Wilmette, 914 F.2d 1008, 1013 (7th Cir. 1990); Iowa

Right to Life Comm., Inc. v. Williams, 187 F.3d 963,

970 (8th Cir. 1999); Brown v. California Dep’t of

Transp., 321 F.3d 1217, 1225 (9th Cir. 2003); Pacific

Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235

(10th Cir. 2005); Cate v. Oldham, 707 F.2d 1176, 1188

(11th Cir. 1983); Chaplaincy of Full Gospel Churches

v. England, 454 F.3d 290, 303 (D.C. Cir. 2006).

But this Court’s discussions of this proposition

have been relatively brief, and as a result, beyond this

clear and unanimous core principle, there is much

conflict and confusion in the lower federal courts.

Most prominently, the circuits disagree over which

constitutional rights benefit from the principle. The

panel below, of course, held that only First Amendment harms are necessarily irreparable, App.19a, and

the Eleventh Circuit has suggested that the principle

may be limited to the First Amendment and the right

to privacy, see Siegel v. LePore, 234 F.3d 1163, 1178

(11th Cir. 2000).

Other circuits, by contrast, have applied the principle in challenges under the Fourth Amendment, see

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

Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983), the

Eighth Amendment, see Jolly v. Coughlin, 76 F.3d

468, 482 (2d Cir. 1996), the right to privacy, see Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328,

338 (5th Cir. Unit B Nov. 1981), abrogated on other

grounds by Dobbs, 597 U.S. 214; Planned Parenthood

of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d

861, 867 (8th Cir. 1977), abrogated on other grounds

by Dobbs, 597 U.S. 214, the Equal Protection Clause,

see Brewer v. West Irondequoit Cent. Sch. Dist., 212

F.3d 738, 745–46 (2d Cir. 2000), the Supremacy

Clause, see American Trucking Ass’ns v. City of Los

Angeles, 559 F.3d 1046, 1058–59 (9th Cir. 2009), and

of course the Second Amendment, see Baird, 81 F.4th

1046; Ezell, 651 F.3d at 699–700. Indeed, a few cases

have stated that the principle applies universally in

any constitutional challenge. See Baird, 81 F.4th at

1050; ACLU of Ky. v. McCreary Cnty., 354 F.3d 438,

445 (6th Cir. 2003), aff’d, 545 U.S. 844 (2005);

Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th

Cir. 1997); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d

Cir. 1984).

The circuit courts also disagree over whether

only certain types of constitutional claims are per se

irreparable. Most cases state the principle as generally applicable. See, e.g., Tucker, 398 F.3d at 464; Cate,

707 F.2d at 1188. But the Second Circuit has held in

the First Amendment context that only “a rule or regulation that directly limits speech” triggers the principle, while “in instances where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must establish a

causal link between the injunction sought and the alleged injury.” Bronx Household of Faith v. Board of

Educ. of N.Y.C., 331 F.3d 342, 349–50 (2d Cir. 2003).

And the Seventh Circuit has declined to apply the

principle to constitutional claims that could in fact be

readily reduced to monetary damages—such as claims

arising out of the loss of tangible employment benefits, Ciechon v. City of Chicago, 634 F.2d 1055, 1057–

58 (7th Cir. 1980), or claims giving rise to “a constitutional tort [analogous] to (other) personal-injury litigation,” Campbell v. Miller, 373 F.3d 834, 835 (7th

Cir. 2004).

Finally, and perhaps most fundamentally, there

is confusion in the courts of appeals over the principle’s nature and justification. As discussed above, the

principle, correctly understood, flows from the recognition that the harm inflicted by the infringement of

substantive constitutional rights is intangible and

thus not reducible to a sum of money or compensable

by monetary damages. That is consistent with this

Court’s decisions, see, e.g., Tandon, 593 U.S. at 64 (per

curiam), and with the opinions of those circuits that

have most thoroughly articulated the principle’s rationale, see Chaplaincy of Full Gospel Churches, 454

F.3d at 303 (given the “inchoate, one-way nature of

Establishment Clause violations,” it “is unclear what,

exactly, movants alleging an Establishment Clause

violation could show to differentiate between establishments that inflict irreparable harm and those that

do not”); Pacific Frontier, 414 F.3d at 1236 (“Commercial speech merits First Amendment protection not

simply because it enables sellers to hawk their wares

and gain a profit, but because it equips consumers

with valuable information and because it contributes

to the efficiency of a market economy. . . . Therefore,

the injury incurred through the deprivation of commercial speech rights cannot be quantified solely in

terms of transaction costs and lost profits to a single

market participant.”); Cate, 707 F.2d at 1189 (presumption justified by “the intangible nature of the

benefits flowing from the exercise of those rights”); accord Ezell, 651 F.3d at 699.

But the panel below adopted a different understanding of the principle, one that casts it more as a

categorical “presumption” of the kind this Court rejected in eBay Inc. v. MercExchange, LLC as inconsistent with the “equitable discretion” historically possessed by the courts. 547 U.S. 388, 391–92 (2006); see

App.16a–17a. Under this view, rather than simply

recognizing the intangible and nonpecuniary nature

of constitutional rights, the principle deeming the violation of those rights irreparable at law instead represents some sort of evidentiary presumption that relieves plaintiffs of the burden of establishing irreparable harm in such cases, thereby “collaps[ing] the four

[injunction] factors into one” and rending injunctive

relief “automatic.” App.5a, 14a. And some other cases

also frame the principle as a “presumption,” in a way

that perhaps reflects, or at least lends itself to, this

misunderstanding. See, e.g., Pacific Frontier, 414 F.3d

at 1235–36; Bronx Household of Faith, 331 F.3d at

349.

This conflict and confusion among the lower

courts over the nature and contours of the principle

that the infringement of substantive constitutional

rights inflicts harm that is per se irreparable is perhaps unsurprising. This Court’s cases applying the

principle are terse, and the Court has not yet articulated its justification or scope at any length. Yet settling these questions is a matter of enormous import.

Ex parte Young actions seeking “to enjoin unconstitutional actions by state and federal officers” have become the standard model for vindication of constitutional rights in modern federal litigation, Armstrong

v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327

(2015), yet the courts remain divided over the proper

application in constitutional litigation of one of the

crucial elements necessary for injunctive relief. The

Court should grant the writ so that it can bring

needed clarity to this important area of law.

CONCLUSION

For the reasons set forth above, the Court should

grant the petition for writ of certiorari.

September 16, 2024

Respectfully submitted,

DAVID H. THOMPSON

BRADLEY P. LEHMAN

Counsel of Record

GELLERT SEITZ

BUSENKELL & BROWN LLC PETER A. PATTERSON

JOHN D. OHLENDORF

1201 N. Orange Street,

COOPER & KIRK, PLLC

Ste. 300

Wilmington, DE 19801 1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Petitioners

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT, JULY 15, 2024 . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE,

FILED MARCH 27, 2023 . . . . . . . . . . . . . . . . . . . . .53a

APPENDIX C — CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED . . . . . . . . . . . . . . . .93a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT, JULY 15, 2024

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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

DELAWARE STATE SPORTSMEN’S

ASSOCIATION, INC.; BRIDGEVILLE RIFLE

& PISTOL CLUB, LTD.; DELAWARE RIFLE &

PISTOL CLUB; DELAWARE ASSOCIATION OF

FEDERAL FIREARMS LICENSEES; MADONNA

M. NEDZA; CECIL CURTIS CLEMENTS; JAMES

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

LYNN PRICKETT; FRANK M. NEDZA,

Appellants in No. 23-1641

DELAWARE DEPARTMENT OF SAFETY &

HOMELAND SECURITY; CABINET SECRETARY,

DELAWARE DEPARTMENT OF SAFETY &

HOMELAND SECURITY; SUPERINTENDENT,

DELAWARE STATE POLICE GABRIEL

GRAY; WILLIAM TAYLOR; DJJAMS LLC;

FIREARMS POLICY COALITION, INC.; SECOND

AMENDMENT FOUNDATION,

Appellants in No. 23-1633

Appendix A

ATTORNEY GENERAL OF DELAWARE

CHRISTOPHER GRAHAM; OWEN STEVENS;

FIREARMS POLICY COALITION, INC.; SECOND

AMENDMENT FOUNDATION,

Appellants in No. 23-1634

ATTORNEY GENERAL OF DELAWARE

On Appeal from the United States District

Court for the District of Delaware.

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

District Judge: Honorable Richard G. Andrews.

March 11, 2024, Argued

July 15, 2024, Filed

Before: BIBAS, MONTGOMERY-REEVES, and ROTH,

Circuit Judges.

OPINION OF THE COURT

BIBAS, Circuit Judge.

A preliminary injunction is not a shortcut to the

merits. Before granting one, a district court must also

weigh the equities, the public interest, and the threat of

irreparable harm. Yet the challengers here urge us to

Appendix A

leapfrog these careful considerations and just resolve the

case. They argue that, if a plaintiff will likely succeed on

the merits of a constitutional claim, a court must grant a

preliminary injunction. Not so. This equitable remedy is

never automatic: It always involves a district court’s sound

discretion. Key to that discretion is whether an alleged

injury jeopardizes the court’s ability to see a case through.

Delaware residents and organizations challenged a

pair of new state gun laws in federal court. Then they

moved to preliminarily enjoin enforcement of those laws.

But the injury they allege does not threaten the court’s

ability to decide the case or to give meaningful relief later

on. We will thus affirm the District Court’s order denying

a preliminary injunction.

A ppe l l a n t s C h a l l e n ge T wo D e l awa r e G u n

Restrictions

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

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

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

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

semiautomatic long guns and pistols, plus certain types

of “copycat weapon[s].” § 1465(2)-(6). Another law bans

having, making, buying, selling, or receiving a magazine

that can hold more than seventeen rounds. §§ 1468(2),

1469(a). The assault-weapon ban (though not the largemagazine ban) grandfathers in guns already owned but

limits carrying them publicly. § 1466(c)(3). Neither ban

applies to members of the military or law enforcement.

§§ 1466(b)(1), 1469(c)(1)-(4).

Appendix A

Soon after these bans became law, the Delaware State

Sportsmen’s Association challenged them in federal court.

Four months later, it sought a preliminary injunction

based on the Second and Fourteenth Amendments.

The next day, Gabriel Gray filed a similar suit and soon

sought a preliminary injunction. Two months after that,

Christopher Graham challenged only the large-magazine

ban.

After consolidating these three cases, the District

Court held a preliminary-injunction hearing. The

challengers put on no live witnesses, nor did they offer

any evidence that Delaware had tried to enforce these

laws or take away their magazines. All they submitted

were declarations from three Delaware residents and

one Delaware gun dealer who want to buy or sell assault

weapons and large magazines. They offered no details

about how they would be harmed.

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

the District Court denied the preliminary injunction. JA 8 &

n.2. It found that the challengers were not likely to succeed

on the merits because both bans “are consistent with the

Nation’s historical tradition of firearm regulation.” JA 34.

It also refused to presume that all Second Amendment

harms are irreparable. Rather, because Delaware’s laws

“regulate[ ] only a subset of semi-automatic weapons,”

the challengers “retain ample effective alternatives” to

defend themselves. JA 35. Because the challengers had

not borne their burden of showing a likelihood of success

or irreparable harm, the District Court did not reach the

other preliminary-injunction factors.

Appendix A

After denying the preliminary injunction, the District

Court started preparing for a November 2023 trial.

Instead of proceeding to trial, the challengers chose to

appeal and put the District Court proceedings on hold.

We heard argument in March 2024.

We review the District Court’s factual findings for

clear error, its legal rulings de novo, and its ultimate

decision for abuse of discretion. Del. Strong Fams. v.

Att’y Gen. of Del., 793 F.3d 304, 308 (3d Cir. 2015). At this

early stage, we review deferentially because the “denial

of a preliminary injunction is almost always based on an

abbreviated set of facts, requiring a delicate balancing

that is the responsibility of the district judge.” Marxe v.

Jackson, 833 F.2d 1121, 1125 (3d Cir. 1987) (cleaned up).

The challengers focus on the merits. If they are

right on those, they argue, they should get an injunction

because all constitutional harm is supposedly irreparable

and the equities and public interest track the merits. But

that is not how equity works. Preliminary injunctions

are not automatic. Rather, tradition and precedent have

long reserved them for extraordinary situations. We see

nothing extraordinary here.

II. P relimi na ry I nj u nctions A re E xt r aordi na ry

Remedies

Chancery’s limits at the Founding still cabin

equitable relief

The judicial power extends to cases in equity.

U.S. Const. art. III, § 2, cl. 1. During the debates over

Appendix A

ratifying the Constitution, Anti-Federalists worried that

equitable jurisdiction would give federal judges unchecked

discretion. Brutus, No. XI, N.Y. J., Jan. 31, 1788, reprinted

in 2 The Complete Anti-Federalist 417, 419-20 (Storing

ed., 1981) (¶¶ 2.9.137-38). The Federal Farmer thought

it “very dangerous” to give the same judge both legal

and equitable power, because “if the law restrain him,

he is only to step into his shoes of equity, and give what

judgment his reason or opinion may dictate.” Letter No.

3 (Oct. 10, 1787), reprinted in id. at 234, 244 (¶ 2.8.42). As

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

worried that granting the courts equitable power would

leave them unbounded by law.

In response, Alexander Hamilton assuaged those

legitimate concerns. He explained that “[t]he great

and primary use of a court of equity is to give relief in

extraordinary cases, which are exceptions to general

rules.” The Federalist No. 83, at 505 (Rossiter ed., 1961)

(footnote omitted). Looking to Blackstone’s Commentaries,

Hamilton insisted “that the principles by which that relief

is governed are now reduced to a regular system.” Id. at

505 n.*. By the Founding, that system had stabilized into

“the practice of the Court of Chancery in England.” Letter

from Timothy Pickering to Charles Tillinghast (Dec. 24,

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

Lerner eds., 1987).

Hamilton’s understanding of equity prevailed.

Congress gave Article III courts concurrent jurisdiction

with state courts over civil suits in equity. Judiciary Act

of 1789, ch. XX, § 11, 1 Stat. 73, 78. The Supreme Court

Appendix A

later described this equitable jurisdiction as constrained

by the “body of doctrine” that Chancery applied to “suits

in equity” at the Founding. Atlas Life Ins. Co. v. W.I.S.,

Inc., 306 U.S. 563, 568, 59 S. Ct. 657, 83 L. Ed. 987 (1939).

Even after the merger of law and equity, “the substantive

principles of Courts of Chancery remain unaffected” to this

day. Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 382,

69 S. Ct. 606, 93 L. Ed. 741 n.26 (1949); see also Petrella

v. MGM, Inc., 572 U.S. 663, 678, 134 S. Ct. 1962, 188 L.

Ed. 2d 979 (2014). “[W]hether the authority comes from

a statute or the Constitution, district courts’ authority

to provide equitable relief is meaningfully constrained.

This authority must comply with longstanding principles

of equity that predate this country’s founding.” Trump v.

Hawaii, 585 U.S. 667, 716, 138 S. Ct. 2392, 201 L. Ed. 2d

775 (2018) (Thomas, J., concurring).

B. For good reason, injunctions were and still are

extraordinary relief

Injunctions fall within this equitable framework. The

English Court of Chancery enjoined parties sparingly.

When a plaintiff’s claim did not fit within one of the narrow

commonlaw writs, he could petition the King for relief

through his chancellor. See Douglas Laycock, The Death

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

chancellor’s power developed into the Court of Chancery.

Id. To keep equity from swallowing up the common-law

courts, Chancery could enjoin parties only when there

was no adequate remedy at law. Id.

Appendix A

Following Chancery’s supplemental role, early

American law reserved injunctions for exceptional cases.

Justice Joseph Story, for instance, feared that because

injunction procedure is “summary,” it is “liab[le] to

abuse.” 2 Commentaries on Equity Jurisprudence as

Administered in England and America § 959a, at 227 (2d

ed. 1839). Courts must use “extreme caution” and “appl[y]

[injunctions] only in very clear cases.” Id. Professor

James P. Holcombe took an even narrower view. Because

injunctions can irreparably injure parties, courts must

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

[they are] clearly indispensable to the ends of justice.”

An Introduction to Equity Jurisprudence, on the Basis

of Story’s Commentaries 150 (1846) (emphasis added).

The Supreme Court largely agreed with Holcombe’s

narrow view. As it explained, “issuing an injunction”

requires “great[ ] caution, deliberation, and sound

discretion.” Truly v. Wanzer, 46 U.S. (5 How.) 141, 142,

12 L. Ed. 88 (1847) (quoting Bonaparte v. Camden &

A.R. Co., 3 F. Cas. 821, 827, F. Cas. No. 1617 (C.C.D.N.J.

1830)). Injunctions themselves can inflict harm. Thus, a

court should not grant an injunction unless the plaintiff’s

right is clear, his impending injury is great, and only an

injunction can avert that injury. Id. at 142-43.

Preliminary injunctions raise further problems.

For one, “many preliminary injunctions [are] granted

hurriedly and on the basis of very limited evidence.” O

Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft,

389 F.3d 973, 1015 (10th Cir. 2004) (en banc) (McConnell,

J., concurring). Time pressures limit adversarial testing.

Appendix A

Affidavits drafted by lawyers are poor substitutes for

discovery, live testimony, and cross-examination. And

when challengers sue to enjoin enforcement of a new law,

courts must forecast how the law will work.

Plus, this hasty process makes the district court jump

to conclusions. A preliminary injunction “forces a party

to act or desist from acting, not because the law requires

it, but because the law might require it.” Id. at 1014-15. In

this sense, it is like “judgment and execution before trial.”

Herman v. Dixon, 393 Pa. 33, 141 A.2d 576, 577 (Pa. 1958).

Finally, forecasting the merits risks prejudging

them. The trial process forces judges to keep open minds,

considering questions from every angle before deciding.

Preliminary relief short-circuits that process, freezing

first impressions in place. True, judges will not always

stick with those impressions—and the system trusts

judges to update them as a case proceeds—but this

flexibility becomes harder when an impression solidifies

into a preliminary ruling. Even if judges keep an open

mind, the parties and the public may see their tentative

forecasts as the writing on the wall.

For all these reasons, a preliminary injunction “is an

extraordinary remedy[ ] [that] should be granted only in

limited circumstances.” Mallet & Co. v. Lacayo, 16 F.4th

364, 391 (3d Cir. 2021) (internal quotation marks omitted).

Unless the need for one in a particular case outweighs

these risks, the court should not grant one.

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III. Preliminary Injunctions Protect Courts’ Power to

Adjudicate

Preliminary injunctions’ primary purpose is

to keep cases alive until trial

Despite these inherent risks, preliminary injunctions

are occasionally warranted. At this stage, “before

there has been a trial on the merits, the function of the

court is not to take whatever steps are necessary to

prevent irreparable harm, but primarily to keep things

as they were, until the court is able to determine the

parties’ respective legal rights.” O Centro, 389 F.3d

at 1012 (McConnell, J., concurring) (emphasis added).

“Traditional equity practice held that the sole purpose of

a preliminary injunction was to preserve the status quo

during the pendency of litigation.” Id. (collecting midnineteenth-through mid-twentieth-century cases).

The Supreme Court has recognized this limited

purpose, as have we. The “purpose of a preliminary

injunction is merely to preserve the relative positions

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

Starbucks Corp. v. McKinney, 144 S. Ct. 1570, 1576, 219

L. Ed. 2d 99 (2024) (quoting Univ. of Tex. v. Camenisch,

451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981));

see also Ortho Pharm. Corp. v. Amgen, Inc., 882 F.2d 806,

813-14 (3d Cir. 1989); Warner Bros. Pictures v. Gittone,

110 F.2d 292, 293 (3d Cir. 1940) (per curiam). The goal is

to ensure that, at the end of the case, the court can still

grant an adequate remedy.

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Our sister circuits concur. Preliminary injunctions

exist “ultimately to preserve the court’s ability to render a

meaningful judgment on the merits.” In re Microsoft Corp.

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

on other grounds by eBay Inc. v. MercExchange, L.L.C.,

547 U.S. 388, 126 S. Ct. 1837, 164 L. Ed. 2d 641 (2006);

accord Meis v. Sanitas Serv. Corp., 511 F.2d 655, 656 (5th

Cir. 1975). That relief is proper only in “the rare case

when a preliminary injunction is necessary to preserve

the effectiveness of the ordinary adjudicatory process.”

McKinney ex rel. NLRB v. S. Bakeries, LLC, 786 F.3d

1119, 1124 (8th Cir. 2015). In short, “the most compelling

reason” to grant a preliminary injunction is “to preserve

the court’s power to render a meaningful decision after a

trial on the merits.” 11A Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure

§ 2947, at 112, 114 (3d ed. 2013).

B. Preventing interim harm is at the service of

preserving the case

Though courts recognize this primary purpose,

they have strayed from it and started using preliminary

injunctions just to prevent harm. To be sure, harm

prevention has become a valid reason to grant a

preliminary injunction. See id. §§ 2948, 2948.1. But that

“is not [its] paramount purpose.” O Centro, 389 F.3d at

977 (Murphy, J., concurring) (citing 11A Wright & Miller

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

courts of equity has never been regarded as strictly

a matter of right, even though irreparable injury may

otherwise result to the plaintiff.” Yakus v. United States,

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321 U.S. 414, 440, 64 S. Ct. 660, 88 L. Ed. 834 (1944). “Only

when the threatened harm would impair the court’s ability

to grant an effective remedy is there really a need for

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

Thus, the threat of irreparable harm does not

automatically trigger a preliminary injunction. Sometimes,

harm threatens to moot a case, as when one party’s

conduct could destroy the property under dispute, kill the

other party, or drive it into bankruptcy, “for otherwise

a favorable final judgment might well be useless.” Doran

v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S. Ct. 2561, 45

L. Ed. 2d 648 (1975). Much more often, though, even

nonpecuniary injury does not rise to that level.

The recent drift from preserving cases to preventing

interim harm can stunt litigation. This extraordinary

remedy has become ordinary. A ll too often, “the

preliminary injunction [becomes] the whole ball game.”

Winter v. NRDC, 555 U.S. 7, 33, 129 S. Ct. 365, 172 L. Ed.

2d 249 (2008) (internal quotation marks omitted). That

shortcut exceeds injunctions’ limits. The “purpose of such

interim equitable relief is not to conclusively determine the

rights of the parties.” Trump v. Int’l Refugee Assistance

Project, 582 U.S. 571, 580, 137 S. Ct. 2080, 198 L. Ed. 2d

643 (2017) (citing Camenisch, 451 U.S. at 395). Rather, it

is supposed to be “only a prediction about the merits of

the case.” United States v. Loc. 560 (I.B.T.), 974 F.2d 315,

330 (3d Cir. 1992).

Case preservation is thus the main reason that the

benefits of a preliminary injunction may outweigh its

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risks. Courts may withhold this extraordinary remedy if

a plaintiff’s alleged injury does not threaten to moot the

case. That approach is often, perhaps usually, the wiser

course.

IV. T h e D i s t r i c t C o u r t P r o p e r ly D e n i e d t h e

Preliminary Injunction

Though district courts have sound discretion to grant

or deny preliminary injunctions, precedent guides this

discretion. Four canonical guideposts are (1) the likelihood

of success on the merits; (2) the risk of irreparable injury

absent preliminary relief; (3) the balance of equities; and

(4) the public interest. Winter, 555 U.S. at 20. The first

two factors are the “most critical.” Nken v. Holder, 556

U.S. 418, 434, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009). If

both are present, a court then balances all four factors. Id.

Because “a preliminary injunction is an extraordinary and

drastic remedy,” the movant bears the burden of making

“a clear showing.” Mazurek v. Armstrong, 520 U.S. 968,

972, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (per curiam)

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

Yet the challengers try to sidestep this framework.

They argue that in constitutional cases, a likelihood of

success on the merits is enough. It is not.

Likely success on the merits is not enough for

a preliminary injunction

The challengers and their amici argue that if they

win on the first factor, then the District Court abused its

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discretion by denying a preliminary injunction. After all,

they reason, constitutional rights are priceless, and the

government has no interest in enforcing unconstitutional

laws. As they readily admit, their argument collapses the

four factors into one. The Ninth Circuit has followed that

siren. Baird v. Bonta, 81 F.4th 1036, 1042 (9th Cir. 2023)

(reasoning that when a party shows the first factor, it

“almost always” shows irreparable harm and “the merged

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

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

First, “[a] preliminary injunction is an extraordinary

remedy never awarded as of right.” Winter, 555 U.S. at

24. Instead, it “is a matter of equitable discretion” that

“does not follow from success on the merits as a matter of

course.” Id. at 32. Contrary to the challengers’ position,

success on the first factor is not enough.

Second, “no test for considering preliminary equitable

relief should be so rigid as to diminish, let alone disbar,

discretion.” Reilly v. City of Harrisburg, 858 F.3d 173,

178 (3d Cir. 2017). Yet the challengers’ test would do just

that, forcing judges to grant preliminary equitable relief

based on only a likelihood of success on the merits. That

cannot be right: “[A] federal judge sitting as chancellor

is not mechanically obligated to grant an injunction for

every violation of law.” Weinberger v. Romero- Barcelo,

456 U.S. 305, 313, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982).

Judges are not robots, especially in equity.

Third, “[c]rafting a preliminary injunction ... often

depend[s] as much on the equities of a given case as the

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substance of the legal issues it presents.” Int’l Refugee

Assistance Project, 582 U.S. at 579. The challengers ask

us to treat a preliminary injunction as rising and falling

with the merits. But the merits are just one piece of the

puzzle. This equitable remedy calls for courts to weigh

the equities, the public interest, and irreparable harm too.

Fourth, if the challengers were right, whenever

someone sought a preliminary injunction, courts would

always have to prejudge the merits; but they need not.

Even assuming irreparable injury, the Supreme Court

has overturned an injunction based solely on the balance

of equities and the public interest. Winter, 555 U.S. at

26, 32. In doing so, it “d[id] not address the underlying

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

approach too. See Weissbard v. Coty, Inc., 66 F.2d 559,

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

District Court would be better placed to rule on them

after a “final hearing”). The other factors are independent

grounds to deny relief.

Fifth, the challengers’ automatic approach presumes

clarity early on. They perceive a finished drawing,

while we see only the initial sketch. Early in a case, the

merits are seldom clear, even when they seem black and

white. The litigation process gradually adds hues to this

monochrome sketch, sharpening the issues until the trial

provides full color. Jumping to conclusions this early is like

finding guilt right after hearing each side’s key witness,

without keeping an open mind long enough to reflect on

their weaknesses. A rushed judgment is a dangerous one;

judges must be humble enough to stay their hands.

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Given the background of the rules of equity, we should

not treat the four-factor test as a mechanical algorithm.

Law sometimes uses such strict formulae, but equity sees

tests as guideposts only. They help the court balance the

risks of mootness against the perils of injunctions. Though

not all four factors must weigh heavily in every case, any

one factor may give a district court reason enough to

exercise its sound discretion by denying an injunction.

Reilly, 858 F.3d at 177-79 (not all factors required). “When

one factor is dispositive, a district court need not consider

the others.” D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 327

(6th Cir. 2019).

Because we must weigh all the factors before granting

relief, we may take the factors out of order, as Winter

and Weissbard did. We start by considering whether the

alleged harm is irreparable. We see no evidence that it

is. Plus, failing to grant interim relief would not moot

this case.

B. Except in First Amendment cases, we do not

presume constitutional harms irreparable

The challengers bear the burden of proving irreparable

injury; yet they ask us to lift that burden from their

shoulders by presuming all constitutional harms

irreparable. We will not. Presuming irreparable harm

is the exception, not the rule. Plus, the presumption they

propose would trample on traditional principles of equity.

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

supplements remedies at law only when needed. When

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lower courts have tried to harden equitable standards

into rules, the Supreme Court has rebuked them. For

example, a district court presumed that patent holders

who do not practice their patents and are willing to license

them cannot suffer irreparable injury. eBay, 547 U.S. at

393. In response, the Federal Circuit tilted to the other

extreme, adopting a rule that made patent-infringement

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

Court, however, rejected both such “broad classifications”

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

courts must apply their equitable discretion to the facts

of each case, guided by “traditional principles of equity.”

Id. at 394.

True, our sister circuits have presumed harm in

various settings. See Baird, 81 F.4th at 1042 (Second

Amendment); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.

1992) (Fourth Amendment); Mitchell v. Cuomo, 748 F.2d

804, 806 (2d Cir. 1984) (Eighth Amendment).

We respectfully decline to do the same. As we have

explained, “[c]onstitutional harm is not necessarily

synonymous with the irreparable harm necessary for

issuance of a preliminary injunction.” Hohe v. Casey, 868

F.2d 69, 73 (3d Cir. 1989). We explicitly refused to presume

that an alleged equal-protection violation irreparably

injured the plaintiff. Constructors Ass’n of W. Pa. v.

Kreps, 573 F.2d 811, 819-20 (3d Cir. 1978). Even as some

courts presumed constitutional harms irreparable, we still

favored “traditional prerequisites for injunctive relief”

over categorical presumptions. Anderson v. Davila, 125

F.3d 148, 164, 37 V.I. 496 (3d Cir. 1997).

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The challengers suggest that we applied such a

presumption to Fourth Amendment violations in Lewis

v. Kugler, 446 F.2d 1343 (3d Cir. 1971). We did not. That

case did deal with an unreasonable search and seizure.

Id. at 1344. But the irreparable harm there came because

the plaintiffs had “alleged that First Amendment rights

have been chilled as a result of government action.” Id. at

1350 n.12 (capitalization added).

That case highlights the exception to our rule: we

presume that First Amendment harms are irreparable.

Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14,

19, 141 S. Ct. 63, 208 L. Ed. 2d 206 (2020) (per curiam);

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

99, 113 (3d Cir. 2013); Chaplaincy of Full Gospel Churches

v. England, 454 F.3d 290, 300, 372 U.S. App. D.C. 94 (D.C.

Cir. 2006) (collecting cases).

Unique First Amendment doctrines warrant that

exception. Take the “heavy presumption” against prior

restraints on speech. Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 70, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963). First

Amendment activity, like weekly worship and political

speech, can be especially time-sensitive. See Roman

Cath. Diocese, 592 U.S. at 19; Elrod v. Burns, 427 U.S.

347, 374 n.29, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)

(plurality opinion). We thus presume that prior restraints

are unconstitutional because we fear “communication will

be suppressed ... before an adequate determination that

it is unprotected by the First Amendment.” Pittsburgh

Press Co. v. Pittsburgh Comm’n on Hum. Rels., 413 U.S.

376, 390, 93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973). As a rule,

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then, the government may not preliminarily enjoin speech.

Mark A. Lemley & Eugene Volokh, Freedom of Speech

and Injunctions in Intellectual Property Cases, 48 Duke

L.J. 147, 169-72 (1998).

Or take courts’ deference to sincere religious belief.

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

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

religious scruples are sincere, courts will not second-guess

their centrality. See Holt v. Hobbs, 574 U.S. 352, 361-62,

135 S. Ct. 853, 190 L. Ed. 2d 747 (2015); Thomas v. Rev.

Bd. of the Ind. Emp. Sec. Div., 450 U.S. 707, 716, 101 S.

Ct. 1425, 67 L. Ed. 2d 624 (1981). This deference comes

from the longstanding principle that “the judges of the

civil courts” are not as “competent in the ecclesiastical

law and religious faith.” Watson v. Jones, 80 U.S. 679,

729, 20 L. Ed. 666 (1871). This history, though, limits the

principle to the First Amendment.

Thus, when weighing preliminary injunctions, courts

may presume that suppressing speech or worship inflicts

irreparable injury. But this presumption is the exception,

not the rule. We will not extend it.

At this early stage, the challengers have failed

to show irreparable harm

Without a presumption in their favor, the challengers’

claim of irreparable harm collapses. They must show that,

without a preliminary injunction, they will more likely

than not suffer irreparable injury while proceedings

are pending. Reilly, 858 F.3d at 179. To satisfy that

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burden, they submitted only four declarations from

Delaware residents who “wish to obtain these firearms

and magazines.” Oral Arg. Tr. 5:9-10. They do not even

allege that Delaware has tried to enforce the disputed laws

against them or to seize the guns or magazines that they

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

such guns or magazines. This status quo shows no signs

of changing. Thus, the challengers have not shown that a

preliminary “injunction is required to preserve the status

quo” while litigation is pending. Warner Bros., 110 F.2d

at 293.

Plus, given preliminary injunctions’ inherent risks,

the challengers’ generalized claim of harm is hardly

enough to call for this “extraordinary and drastic remedy.”

Mazurek, 520 U.S. at 972. The harm they allege is a

far cry from “media companies hav[ing] to alter their

editorial policies and posting practices to comply with [a]

new speech law” or “businesses hav[ing] to restructure

their operations or build new facilities to comply with the

new [environmental] regulations” for years while they

challenge these regulations. Labrador v. Poe ex rel. Poe,

144 S. Ct. 921, 929, 218 L. Ed. 2d 400 (2024) (Kavanaugh,

J., concurring). What is more, the challengers offered

no evidence that without a preliminary injunction, the

District Court will be unable to decide the case or give

them meaningful relief. Thus, the court properly found

no irreparable harm.

We rule only on the record before us. The challengers

have shown no harms beyond ones that can be cured after

final judgment. That finding alone suffices to support

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the District Court’s denial of a preliminary injunction.

Pennsylvania ex rel. Creamer v. U.S. Dep’t of Agric., 469

F.2d 1387, 1388 (3d Cir. 1972) (per curiam). We do not hold

that Second Amendment harms, or constitutional harms

generally, cannot be irreparable. Still, the scant evidence

before us here hardly shows that the challengers’ harm is.

We also limit our analysis of irreparable injury to this

preliminary injunction. For permanent injunctions, courts

focus not on preserving the case and avoiding interim

harms, but on whether the remedy at law is adequate.

Emily Sherwin & Samuel L. Bray, Ames, Chafee, and

Re on Remedies 653 (3d ed. 2020). We do not decide here

whether the challengers should get a permanent injunction

if they win on the merits.

The other factors also support denying the

injunction

Even if the challengers had shown an irreparable

injury, the third and fourth factors would weigh against a

preliminary injunction, as in Winter. Those factors, harm

to the opposing party and the public interest, “merge

when the Government is the opposing party.” Nken, 556

U.S. at 435. They call for caution because this injunction

threatens federalism and the separation of powers—“[t]wo

clear restraints on the use of the equity power.” Missouri

v. Jenkins, 515 U.S. 70, 131, 115 S. Ct. 2038, 132 L. Ed. 2d

63 (1995) (Thomas, J., concurring).

The challengers seek to enjoin enforcement of two

democratically enacted state laws. Courts rightly hesitate

22a

Appendix A

to interfere with exercises of executive or legislative

authority. Rathke v. MacFarlane, 648 P.2d 648, 651

(Colo. 1982) (en banc); cf. Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 635-38, 72 S. Ct. 863, 96 L. Ed. 1153,

62 Ohio Law Abs. 417 (1952) (Jackson, J., concurring).

“There is always a public interest in prompt execution”

of the laws. Nken, 556 U.S. at 436.

That is doubly true when federal courts are asked to

block states from enforcing their laws. See, e.g., Younger

v. Harris, 401 U.S. 37, 53-54, 91 S. Ct. 746, 27 L. Ed. 2d

669 (1971). A federal court must weigh how best to deal

with state laboratories of democracy. On a complete

record, the duty of the federal court sometimes includes

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

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

though, we must err on the side of respecting state

sovereignty. Delaware’s legislature passed these bills,

and Delaware’s governor signed them into law. “Any time

a State is enjoined by a court from effectuating statutes

enacted by representatives of its people, it suffers a form

of irreparable injury.” Maryland v. King, 567 U.S. 1301,

1303, 133 S. Ct. 1, 183 L. Ed. 2d 667 (2012) (Roberts, C.J.,

in chambers) (brackets and internal quotation marks

omitted).

Plus, Delaware Sportsmen delayed seeking a

preliminary injunction. A classic maxim of equity is that

it “assists the diligent, not the tardy.” Sherwin & Bray

441. The logic behind preliminary injunctions follows

the general logic of equity: “[T]here is an urgent need

for speedy action to protect the plaintiffs’ rights. Delay

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Appendix A

in seeking enforcement of those rights, however, tends

to indicate at least a reduced need for such drastic,

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

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

delay suggests that it felt little need to move quickly.

Its continuing delay as it chooses not to hasten to trial

does not help its case. Thus, the final two factors support

denying a preliminary injunction as well.

V. The Challengers Had Other Ways to Get Relief

Promptly

Our decision today leaves open several ways to

vindicate constitutional rights promptly. First, a district

court may move up the trial to consolidate it with the

preliminary-injunction hearing. Fed. R. Civ. P. 65(a)(2).

Second, the court may convert a preliminary-injunction

motion into a summary-judgment motion if they first give

the parties enough notice. See Air Line Pilots Assn.,

Int’l v. Alaska Airlines, Inc., 898 F.2d 1393, 1397 n.4 (9th

Cir. 1990). Third, rather than move for a preliminary

injunction, the parties may agree to an accelerated trial.

See 11A Wright & Miller § 2948.1 & n.1.

Those approaches have many advantages. Often, “it

would be more efficient to consolidate the trial on the merits

with the motion for a preliminary injunction under Rule

65(a)(2).” Morton Denlow, The Motion for a Preliminary

Injunction: Time for a Uniform Federal Standard, 22

Rev. Litig. 495, 534 (2003). Here, for instance, the trial

would have happened in November 2023. Final rulings

on the merits would resolve issues definitively and let us

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Appendix A

review legal rulings de novo on fully developed records.

This preliminary posture, by contrast, just encourages

snap judgments in the abstract.

****

A preliminary injunction is not a first bite at the

merits. Rather, it is an extraordinary, equitable remedy

designed to protect the court’s ability to see the case

through. It risks cementing hasty first impressions. We

trust district courts to reserve this drastic remedy for

drastic circumstances. Because the District Court did so

here, we affirm its order denying a preliminary injunction.

We express no view of the merits.

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Appendix A

ROTH, Circuit Judge, concurrence

Although I concur with the result reached by the

Majority, I write separately to address the plaintiffs’

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

of the equities and public interest. These additional

thoughts may guide future litigants in formulating any

steps that they may take following this decision.

As the Majority observes, a court may deny a

preliminary injunction under “any one” of the four

factors.1 The District Court did so because plaintiffs failed

to establish a likelihood of success on the merits2 —the

first of the two “most critical” 3 factors—and addressed

irreparable harm “for thoroughness only.”4 By contrast,

the Majority affirms the denial of injunctive relief solely

based on a lack of irreparable harm. 5 While I agree

that plaintiffs failed to demonstrate irreparable harm, I

believe it would be helpful to future litigants to present a

full discussion. As the District Court held, I believe that

plaintiffs are not likely to succeed on the merits of their

constitutional claim.

1. Maj. Op. 19.

2. See Delaware State Sportsmen’s Ass’n, Inc. v. Delaware

Dep’t of Safety & Homeland Sec., 664 F. Supp. 3d 584, 590-603

(D. Del. 2023).

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

129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009)).

n.17.

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

5. Maj. Op. 26-27.

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Appendix A

Moreover, because I also believe that none of the

assault weapons and LCMs at issue are “Arms” protected

by the Second Amendment, I would hold that plaintiffs’

challenge to Delaware’s laws fails at Bruen’s first step,

not its second.6

Governing Law

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

Amendment provides: “A well regulated Militia, being

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

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

interpreting its meaning, we are guided by the principle

that “the Constitution was written to be understood by the

voters; its words and phrases were used in their normal

and ordinary as distinguished from technical meaning.” 9

“Normal and ordinary meaning” is that which would

“have been known to ordinary citizens in the founding

generation.”10 Therefore, our interpretation of the Second

Amendment—and our understanding of the “Arms” it

protects in the present moment—is necessarily informed

6. The District Court determined that assault long guns

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

assault pistols and copycat weapons are not. See Delaware State

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

7. Bevis v. City of Naperville, 85 F.4th 1175, 1188 (7th Cir. 2023).

8. U.S. Const. amend. II.

9. D.C. v. Heller, 554 U.S. 570, 576, 128 S. Ct. 2783, 171 L.

Ed. 2d 637 (2008) (cleaned up).

10. Id. at 577.

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Appendix A

and cabined by history and Supreme Court precedent

discussing the same.11

We thus turn to the “normal and ordinary” meaning

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

Second Amendment.12 The Supreme Court’s decision in

District of Columbia v. Heller is our north star.13 In Heller,

the Court instructed that the founding-era meaning

of the word “Arms” “is no different from the meaning

today.”14 Contemporaneous dictionaries defined “arms”

as “weapons of offence, or armour of defence,” or “any

thing that a man wears for his defence, or takes into his

hands, or useth in wrath to cast at or strike another.”15

Most importantly, the term was applied “to weapons

that were not specifically designed for military use and

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

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

the basis of both text and history, that the Second Amendment

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

added). As used herein, the term “Arms” refers to weapons that

are protected under the Second Amendment while “arms” refers

to weapons generally.

12. Id. at 576.

13. 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).

14. Id. at 581.

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

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

Cunningham’s important 1771 legal dictionary”).

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

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

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Appendix A

then went on to explain that the most natural reading of

“keep Arms” is simply to have or possess weapons.17 By

contrast, “bear Arms” means something else. By itself,

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

with “Arms,” “bear” referred “to carrying for a particular

purpose—confrontation.”19 Accordingly, to “bear Arms”

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

armed and ready for offensive or defensive action in a case

of conflict with another person.” 20

At first blush—especially in light of the prefatory

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

seem nonsensical that the Arms referred to in the Second

Amendment do not include those “specifically designed for

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

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

historical sources).

18. Id. at 584.

19. Id.

20. Id. Heller expressly endorsed the definition Justice

Ginsburg set forth in her dissent in Muscarello v. United States,

524 U.S. 125, 118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998). In analyzing

the meaning of the phrase “carries a firearm” as it was used in a

federal criminal statute, Justice Ginsburg observed that “[s]urely a

most familiar meaning is, as the Constitution’s Second Amendment

(“keep and bear Arms”) . . . indicate[s]: ‘wear, bear, or carry . . .

upon the person or in the clothing or in a pocket, for the purpose

. . . of being armed and ready for offensive or defensive action in a

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

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

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Appendix A

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

history in United States v. Miller and Heller clear things

up. 22 When the Second Amendment was ratified, the term

“Militia” referred to “all males physically capable of acting

in concert for the common defense.” 23 At that time, the

“Militia” was “set in contrast with Troops which [States]

were forbidden to keep without the consent of Congress.”24

“Troops” were “standing armies” made up of soldiers,

while the “Militia” was made up of ordinary citizens who

would “appear bearing arms supplied by themselves and

of the kind in common use at the time” when called to

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

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

and home were one and the same.” 26

Heller held that the Second Amendment confers

an individual right to keep and bear “Arms” for self21. Heller, 554 U.S. at 581.

22. U.S. v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206,

1939-1 C.B. 373 (1939); Heller, 554 U.S. 570.

23. Miller, 307 U.S. at 179.

24. Id. at 178-79.

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

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

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

every other character; and in this distinction seems to consist the

essential difference between those two different species of military

force.”) (quoting Adam Smith, Wealth of Nations, Book V. Ch. 1).

26. Heller, 554 U.S. at 625 (quoting State v. Kessler, 289 Ore.

359, 614 P.2d 94, 98 (Or. 1980)).

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Appendix A

defense—weapons akin to those to those that ordinary

citizen-militiamen would keep at home and bring when

called to duty—and thus protected respondent’s right

to keep and bear a handgun. However, Heller also made

clear that “the right [is] not a right to keep and carry

any weapon whatsoever and for whatever purpose.” 27

Most importantly for our purposes, Heller recognized

that right “extends only to certain types of weapons.” 28

While “the Second Amendment extends, prima facie, to

all instruments that constitute bearable arms,” it does

not protect “dangerous and unusual weapons.” 29 Among

the “dangerous and unusual weapons” outside its scope

are (1) weapons that are “not typically possessed by

law-abiding citizens for lawful purposes,” such as shortbarreled shotguns;30 and (2) weapons that are “most useful

27. Id. at 626.

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

29. Id. at 582, 627.

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

Second Amendment does not protect the right to keep and bear

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

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

this time has some reasonable relationship to the preservation or

efficiency of a well-regulated militia[.]” Miller, 307 U.S. at 178. See

also Heller, 554 U.S. at 622-23 (explaining that Miller’s “basis for

saying that the Second Amendment did not apply was not that the

defendants were ‘bear[ing] arms’ not ‘for . . . military purposes’

but for ‘nonmilitary use’ . . . Rather, it was that the type of weapon

at issue was not eligible for Second Amendment protection[.]”)

(emphases and alterations in original) (internal citation omitted).

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Appendix A

in military service,” such as “M-16 rifles and the like.” 31

Heller’s discussion of the latter is worth revisiting in full:

It may be objected that if weapons that are

most useful in military service—M-16 rifles

and the like—may be banned, then the Second

Amendment right is completely detached from

the prefatory clause. But as we have said,

the conception of the militia at the time of

the Second Amendment’s ratification was the

body of all citizens capable of military service,

who would bring the sorts of lawful weapons

that they possessed at home to militia duty. It

may well be true today that a militia, to be as

effective as militias in the 18th century, would

require sophisticated arms that are highly

unusual in society at large. Indeed, it may be

true that no amount of small arms could be

useful against modern-day bombers and tanks.

But the fact that modern developments have

limited the degree of fit between the prefatory

clause and the protected right cannot change

our interpretation of the right. 32

In other words, the fact that a militia member no

longer brings along his or her own weapon to militia duty,

does not prevent us from recognizing the significance of

the words used in the 18th century to create the Second

Amendment.

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

32. Id. at 627-28.

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Appendix A

Two years after Heller, the Court in McDonald v.

Chicago expanded Heller’s scope by confirming that

the Second Amendment applies to the states through

incorporation under the Fourteenth Amendment. 33

McDonald said nothing new about the kinds of Arms

protected by the Second Amendment; as in Heller,

the weapons at issue in McDonald were handguns. 34

McDonald reiterated that self-defense is the “central

component” of the Second Amendment right and the

“core lawful purpose” for which the weapons it protects

are used. 35

Twelve years after McDonald, the Court made “more

explicit” a two-step analytical approach for evaluating

Second Amendment claims in New York State Rif le

& Pistol Ass’n, Inc. v. Bruen. 36 At step one, the court

determines whether the Second Amendment’s “plain

text” covers the “conduct” at issue. 37 If it does, the court

33. McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S.

Ct. 3020, 177 L. Ed. 2d 894 (2010).

34. Id. at 750.

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

36. 597 U.S. 1, 31, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022).

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

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

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

previously applied to Second Amendment claims, the Court

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

protect other constitutional rights,” such as those guaranteed by

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

33a

Appendix A

proceeds to step two to determine whether the challenged

laws are “consistent with the Nation’s historical tradition

of firearm regulation.” 38 At step two, the government

must show that that the modern regulation is “relevantly

similar” to historical regulation in “how and why the

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

self-defense.” 39

II. Discussion

Plaintiffs failed to establish a likelihood of

success on the merits.

The laws challenged here restrict having, making,

buying, selling, and receiving “assault weapons” and

“large capacity magazines.”40 “Assault weapons” include:

(1) forty-four semi-automatic “assault long guns,” including

the AR-15, AK-47, and Uzi; (2) nineteen semi-automatic

a violation of their First Amendment rights must “bear[] certain

burdens,” only after which “the focus then shifts to the defendant

to show that its actions were nonetheless justified[,]” then the same

must be true here. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507,

524, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022); see also Bevis v.

City of Naperville, Illinois, 85 F.4th 1175, 1194 (7th Cir. 2023) (“In

order to show a likelihood of success on the merits, the plaintiffs

in each of the cases before us have the burden of showing that

the weapons addressed in the pertinent legislation are Arms”).).

38. Bruen, 597 U.S. at 24.

39. Id. at 29.

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

weapons); id. § 1468(2) (LCMs).

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Appendix A

“assault pistols”; and (3) “copycat weapons.”41 “Large

capacity magazines” (LCMs), are magazines “capable of

accepting, or that can readily be converted to hold, more

than 17 rounds of ammunition.”42

We must first decide whether these assault weapons

and LCMs are “Arms” that individuals are entitled

to “keep and bear” under the plain text of the Second

Amendment. If they are not properly characterized as

“Arms,” then Delaware is free to regulate them as it

chooses. If they are properly characterized as “Arms,” we

proceed to Bruen’s second step and determine whether the

laws are “consistent with the Nation’s historical tradition

of firearm regulation.”43

Three principles, the contours of which are disputed

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

First, the Second Amendment extends to “all instruments

that constitute bearable arms,”44 meaning weapons that

“are in common use for self-defense today.”45 Second,

for purposes of assessing whether a given weapon is in

common use for self-defense, what matters is whether the

weapon in question is suitable for, owned for, and actually

used in self-defense. Third, the Second Amendment does

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

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

42. Id. § 1468(2).

43. 597 U.S. at 24.

44. Heller, 554 U.S. at 582.

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

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Appendix A

not protect “dangerous and unusual weapons,” meaning

those weapons that are “not typically possessed by lawabiding citizens for lawful purposes”46 or are “most useful”

as weapons of war.47

“Bearable arms” are those that are

commonly used for self-defense.

The parties disagree about the kinds of “bearable

arms” presumptively protected by the Second Amendment.

Plaintiffs contend that weapons used for any lawful

purpose including self-defense are protected, while

Delaware argues that only weapons that are commonly

used for self-defense are protected. Delaware’s argument

proves stronger.

Limiting the scope of “bearable arms” to those that

are used for self-defense comports with the “normal and

ordinary” meaning of “bear arms.”48 Heller made clear

that to “bear arms” means to carry weapons “for the

purpose . . . of being armed and ready for offensive or

defensive action in a case of conflict with another person.”

Thus, the phrase “bearable arms” necessarily refers to

weapons that are carried for that same express purpose.49

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

46. Id. at 625.

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

48. Heller, 554 U.S. at 576.

49. Id. at 584.

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Appendix A

purposes besides self-defense. Recreational target

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

Heller holds, and its progeny affirms, that self-defense

is “the core lawful purpose” protected by the Second

Amendment. 51 While these other uses may be lawful,

the Supreme Court has never recognized them as “core”

purposes protected by the Second Amendment. 52 Until it

might do so, the “bearable arms” presumptively protected

by the Second Amendment are limited to weapons used

explicitly for self-defense. 53

ii.

Whether a weapon is “in common use

for self-defense” hinges on more than its

popularity.

The parties dispute (1) when common use should

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

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

measured.

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

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

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

on other grounds by Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed.

2d 387 (2022).; Bevis, 85 F.4th at 1192.

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

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

‘individual self-defense is ‘the central component’ of the Second

Amendment right.’”) (emphasis in original) (quoting McDonald,

561 U.S. at 767)).

52. Heller, 554 U.S. at 630.

53. Id.

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Appendix A

“ W hen” is a question easily answered. Bruen

acknowledged that the handguns at issue were “’in

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

historical analysis, thereby indicating that “common use”

comes into play at step one. 54

“What type” can also be resolved by reference to

Bruen. As the latest in a line of decisions holding that

“individual self-defense is ‘the central component’ of

the Second Amendment right,” Bruen confirms that

the only weapons protected by the right are those that

are commonly used for self-defense--not for any lawful

purpose like self-defense. 55

“How” is more complicated. The Supreme Court has

yet to address exactly how we should assess whether

a weapon is “in common use today for self-defense.”56

The District Court did so only by considering whether

the assault weapons and LCMs were popular. 57 But

the plain meaning of “common use,” the frameworks of

other constitutional rights, and the problems that might

flow from the District Court’s approach all point toward

additional metrics: a weapon’s objective suitability for selfdefense and whether it is commonly used in self-defense.

54. See Bruen, 597 U.S. at 32.

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

56. Id. (internal quotations omitted).

595.

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

38a

Appendix A

Consider the plain meaning of “common use.”

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

in general use; usual, prevalent.” 58 “Use” is defined

as “a long-continued possession and employment of a

thing for the purpose for which it is adapted[.]”59 Read

together, a weapon is in common use for self-defense

if evidence shows it is (1) well adapted for self-defense

and (2) widely possessed and employed for self-defense.

However, evidence that a weapon is widely possessed or

that a widely possessed weapon is occasionally used in

self-defense is not, alone, enough to show it is in common

use for self-defense—not if we want to heed the phrase’s

plain meaning.

Beyond plain meaning, Bruen says that its two-step

standard “accords with how we protect other constitutional

rights.”60 We frequently define the boundaries of these

rights with objective standards.61 There is no reason not to

58. Common, Adj., Sense II.9.a, Oxford English Dictionary

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

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

definition reads: “The application or employment of something;

esp., a long-continued possession and employment of a thing for the

purpose for which it is adapted, as distinguished from a possession

and employment that is merely temporary or occasional.” Id.; see

also Voisine v. United States, 579 U.S. 686, 692, 136 S. Ct. 2272,

195 L. Ed. 2d 736 (2016) (“Dictionaries consistently define the noun

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

60. Bruen, 597 U.S. at 24.

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

assess the constitutionality of an arrest by determining whether

39a

Appendix A

do the same in the Second Amendment context.62 By taking

into account whether a weapon is objectively suitable for

self-defense, we ensure that the Second Amendment right

to self-defense is not “subject to an entirely different body

of rules than the other Bill of Rights guarantees.”63

Finally, a “common use” analysis that hinges solely

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

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

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

When the Ban first went into effect in 1994, few civilians

“the circumstances, viewed objectively, justify [the challenged]

action.” Ashcroft v. al-Kidd, 563 U.S. 731, 736, 131 S. Ct. 2074,

179 L. Ed. 2d 1149 (2011) (alterations in original). In determining

whether an individual was subject to an unreasonable search, we

consider whether the person being searched had an objectively

reasonable expectation of privacy and the objective effect of the

officer’s actions. Bond v. United States, 529 U.S 334, 338, 338 n.2,

120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000). In the Sixth Amendment

context, a criminal defendant claiming ineffective assistance of

counsel “must show that counsel’s representation fell below an

objective standard of reasonableness.” Strickland v. Washington,

466 US. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

62. Indeed, even Bruen suggests that an objective standard

is relevant for judging whether a Second Amendment violation

has occurred. The Court specifically held that New York’s propercause requirement was unconstitutional “in that it prevents lawabiding citizens with ordinary self-defense needs from exercising

their right to keep and bear arms.” Bruen, 597 U.S. at 71 (emphasis

added).

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

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

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Appendix A

owned AR-15s.65 When it expired in 2004, AR-15s “began

to occupy a more significant share of the market.”66 Today,

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

semiautomatic rifle” and “the second-most common type

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

popularity alone, the Ban would have been constitutional

before 2004 but unconstitutional thereafter.68 A law’s

constitutionality cannot be contingent on the results of a

popularity contest.69

iii. “Dangerous and unusual weapons” is a

category, not a test.

Though the Second Amendment presumptively

protects “Arms” that are in common use for self-defense,

it does not extend to “dangerous and unusual weapons.” 70

The District Court likened this to a “test,” and concluded

that a weapon must “check both boxes” to qualify as

65. Bevis, 85 F.4th at 1199.

66. Id.

67. Gray Br. 19-20.

68. See Bevis, 85 F. 4th at 1199.

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

3d 63, 102 (D. Conn. 2023) (“[W]hile constitutional protections

adapt to the constant evolution of societal norms and technology,

no other constitutional right waxes and wanes based solely on

what manufacturers choose to sell and how Congress chooses to

regulate what is sold, and the Second Amendment should be no

exception.”).

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

41a

Appendix A

“dangerous and unusual.” 71 But Heller instructs that

“dangerous and unusual” is best understood as a two-part

category unto itself.72 As discussed above, “dangerous

and unusual weapons” are either (1) weapons that are

“not typically possessed by law-abiding citizens for

lawful purposes, such as short-barreled shotguns,” or

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

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

worth noting that “most” is a superlative descriptor.74

Therefore, even though a weapon might be useful in

civilian and military contexts, a weapon that is “most”

suited for military use falls outside the scope of “Arms”

protected by the Second Amendment.75

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

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

concurrence in Caetano v. Massachusetts, 577 U.S. 411, 417, 136

S. Ct. 1027, 194 L. Ed. 2d 99 (per curiam) (Alito, J., concurring)

(“[T]his is a conjunctive test: A weapon may not be banned unless

it is both dangerous and unusual.”). Moreover, and as discussed

in greater detail below, affording “great weight” to the Caetano

concurrence is unwarranted. Delaware State Sportsmen’s Ass’n,

664 F. Supp. 3d at 595.

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

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

Heller, 554 U.S. at 627).

75. Even Delaware acknowledges that each of the assault

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

or recreational firearm”; however, that potential is “substantially

outweighed by the danger that it can be used to kill and injure

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

42a

Appendix A

While the District Court concluded that the assault

weapons and LCMs at issue are typically possessed by

lawabiding citizens for lawful purposes, it did not consider

whether any of the assault weapons and LCMs at issue

“are most useful in military service” and therefore “may

be banned” without infringing the Second Amendment

right (as Heller tells us).76 That was error.

iv.

None of the assault weapons and LCMs

are “Arms” protected by the Second

Amendment.

The District Court concluded that assault long guns

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

pistols and copycat weapons are not.77 However, its

analysis rested on an incomplete assessment of “common

use” and a misunderstanding of what makes a weapon

“dangerous and unusual.” Analyzed correctly, the record

shows that none of the assault weapons and LCMs are

“Arms” protected by the Second Amendment.

Assault long guns: The assault long guns set forth

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

nonetheless best categorized as weapons that are most

useful in military service and are therefore unprotected

by the Second Amendment.78 Generally speaking, assault

long guns derive from weapons of war and retain nearly

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

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

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

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

78. Del. Code Ann. tit. 11, § 1465(2).

43a

Appendix A

all of the features of their military counterparts.79 These

“famed” military features—designed to increase lethality

and allow shooters to inflict severe damage over great

distances—serve as civilian selling points. 80 But while

these features may be useful in military contexts, they

make assault long guns ill-suited for self-defense. 81 Unlike

79. The only meaningful distinction between the assault

long guns sold to civilians and the assault long guns reserved for

military use appears to be firing capability: civilian versions are

only capable of semi-automatic operation while military versions

can operate both ways. However, the ease with which semiautomatic rifles can be modified to fire at rates approaching that

of their fully automatic counterparts reinforces the concept that

the design of an assault long gun is a design for a weapon of war.

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

(citing evidence of “numerous inexpensive products, available for

purchase in most states, that allow AR-style rifles to fire at rates

comparable to fully automatic weapons.”); Garland v. Cargill,

602 U.S. 406, 410-12, 144 S. Ct. 1613, 219 L. Ed. 2d 151 (2024)

(describing the ease with which a semi-automatic rifle can be

converted to fire at a rate approaching that of a machine gun).

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

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

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

rakish AR-15, famed for its success in guerilla fighting. The sport

version is an exact duplicate of the military weapon . . .”); SA 455-56

¶¶ 57-58 (“Colt sought to capitalize on the military acceptance of

the AR-15 / M16 and [] proposed production of these rifles for sale

to the civilian market . . . The sole difference between the military

and civilian versions was removal of fully automatic capability

. . . All of the other features on these rifles that enhanced their

capability as combat military firearms remained.”).

81. T he se fe at u r e s a l so m a ke a s sau lt we ap on s “a

counterintuitive choice” for other lawful purposes like hunting

and target shooting. SA 474-75 ¶ 88.

44a

Appendix A

wartime offensives, home and self-defense scenarios

rarely, if ever, involve lengthy shootouts at long ranges

or extensive exchanges of gunfire. Moreover, projectiles

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

cartridge can easily penetrate most home construction

materials, posing a serious risk of harm to bystanders in

adjacent rooms or even outside the home entirely. 82

The lethality of an assault long gun is best illustrated

by way of comparison. Take the damage inflicted by a

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

and the damage inflicted by an assault rifle. 83 A common

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

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

tissue, it strikes directly, producing “a small temporary

cavity” in tissue that “plays little or no role in the extent

of wounding.”84 By contrast, a 5.66 mm or .223 caliber

cartridge—the kind typically used in assault weapons—

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

wherein nine different types of .223 / 5.56 mm ammunition were

fired through simulated wall sections made of gypsum board, sheet

rock, and wooden 2x4 studs, and noting that “all nine (including

“frangible” rounds designed to disintegrate when hitting a hard

surface) easily penetrated the wall section as well as water jugs

placed three feet behind.”). In addition to materials commonly used

in home construction, .223 caliber ammunition can penetrate 3/8”

hardened steel from 350 yards away, while 5.56 mm can penetrate

up to 3mm of non-hardened steel.

83. Heller, 554 U.S. at 629.

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

45a

Appendix A

travels at double the speed. 85 And unlike a handgun

cartridge, it turns sideways when it hits tissue, creating

a cavity over ten times larger than the cartridge itself

and resulting in “catastrophic” wounding. 86 Doctors who

have treated people shot by assault rifles have witnessed

“multiple organs shattered, bones exploded, soft tissue

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

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

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

the scope of “Arms” presumptively protected by the

Second Amendment.

LCMs: The District Court explained it was “bound”

by our pre-Bruen decision in ANJRPC in two ways. 88

First, because ANJRPC “broadly held that ‘magazines

are arms,’” the District Court assumed the LCMs at issue

here must also be “arms.”89 Second, because plaintiffs in

both cases proffered similar “common use” evidence, the

District Court determined that these LCMs must also

be “in common use for self-defense today.”90 As a result,

the District Court held that the LCMs Delaware seeks

to regulate are “Arms” presumptively protected by the

85. SA 472 ¶ 83.

86. Id.

87. Id.

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

(discussing ANJRPC, 910 F.3d at 110).

89. Id. (quoting ANJRPC, 910 F.3d at 116).

90. Id. at 596-97.

46a

Appendix A

Second Amendment. While the District Court’s reliance

on ANJRPC was understandable, it read our decision too

broadly.

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

insofar as they “feed ammunition into certain guns,

and ammunition is necessary for such a gun to function

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

proposition that all magazines are categorically protected

Arms under the Second Amendment. Indeed, we expressly

assumed without deciding that the LCMs at issue (those

with 10 or more rounds of ammunition) were “commonly

owned and typically possessed by law-abiding citizens for

lawful purposes.” 92 Other courts took a similar approach

pre-Bruen.93 But we now have the benefit of Bruen, which

confirms that only “weapons ‘in common use’ today for

self-defense,” as opposed to generally “lawful purposes,”

are protected by the Second Amendment.94 As a result,

the evidence that sufficed for the sake of argument in

ANJRPC—evidence showing magazines are “typically

possessed by law-abiding citizens for hunting, pestcontrol, and occasionally self-defense”—does not suffice

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

Second Amendment, nor are all magazines.

91. ANJRPC, 910 F.3d at 116.

92. Id. (internal citations omitted).

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

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

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

94. Bruen, 597 U.S. at 48.

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

47a

Appendix A

Plaintiffs show that LCMs are widely owned but

otherwise offer no evidence that the LCMs at issue here—

magazines that can hold seventeen or more rounds—are

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

Delaware offered evidence showing that LCMs are most

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

were designed for military use to allow a soldier to “fire

an increased quantity of cartridges without reloading.” 96

They are marketed to civilians for the same express

purpose (“Twice the violence of action. Half the reloads.

Win-win”), but that purpose is plainly most useful in

combat. 97 The record shows it is “extremely rare” for

a person to fire even ten rounds, let alone more than

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

of “armed citizen” stories collected by the National Rifle

Association from 2011 to 2017 found that the average

number of shots fired in self-defense was 2.2.99

Based on the record presented, the LCMs Delaware

seeks to regulate are most useful as military weapons and

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

Assault pistols: Plaintiffs offered no evidence that

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

are best adapted for self-defense, commonly owned for

96. SA 454-55 ¶ 55.

up).

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

98. SA 331 ¶ 9.

99. Id.

48a

Appendix A

self-defense, or commonly used for self-defense. Plaintiffs’

sole argument is that that the Supreme Court has already

“clarifi[ed]” that assault pistols listed “are in common

use,” citing Justice Alito’s concurrence in Caetano v.

Massachusetts.100 Not so. Although Justice Alito observed

that “revolvers and semiautomatic pistols” are “the

weapons most commonly used today for self-defense,” the

Court’s per curiam opinion pertained only to stun guns

and simply affirmed Heller’s holding that a weapon need

not have existed at the time of the founding to receive

Second Amendment protection.101 Moreover, Justice Alito’s

broad observation about “revolvers and semiautomatic

pistols” tells us nothing about the nineteen specific assault

pistols Delaware seeks to regulate.102

Dictum from Justice Alito’s Caetano’s concurrence

notwithstanding, and based on the record presented, the

assault pistols at issue are not “Arms” presumptively

protected by the Second Amendment.

Copycat weapons: Plaintiffs claim that the assault

long guns and assault pistols listed at §§ 1465(2) and (3) are

100. Delaware State Br. 12 (citing Caetano, 577 U.S. at 41617 (Alito, J., concurring), Heller v. D.C. (“Heller II”), 670 F.3d

1244, 1269, 399 U.S. App. D.C. 314 (D.C. Cir. 2011) (Kavanaugh,

J., dissenting), and New York State Rifle & Pistol Ass’n, Inc. v.

Cuomo, 804 F.3d 242, 255 (2d Cir. 2015)); Del. Code Ann. tit. 11,

§ 1465(3).

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

id. at 411-12.

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

49a

Appendix A

no different from the copycat weapons listed at § 1465(6).

According to plaintiffs, because assault long guns and

assault pistols are widely owned and therefore protected

under the Second Amendment, the same is true for copycat

weapons. However, as discussed above, plaintiffs failed to

demonstrate that assault long guns and assault pistols are

in common use for self-defense. By plaintiffs’ own logic,

our analysis of copycat weapons ends there. Moreover, the

only evidence plaintiffs submitted was a survey regarding

the ownership and use of the “AR-15 or similarly styled

rifles.”103 These statistics, by themselves, do not establish

that copycat weapons are commonly used for self-defense.

Accordingly, copycat weapons are not “Arms” protected

by the Second Amendment.

Because I would hold that none of the assault weapons

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

step one, it is unnecessary to consider whether Delaware

met its burden at Bruen step two. But even assuming

that the assault weapons and LCMs at issue fall within

the ambit of Arms protected by the Second Amendment,

the District Court’s careful analysis leaves no doubt that

Delaware’s laws are consistent with the nation’s historical

traditional of firearm regulation.104 Either way, plaintiffs

103. William English, 2021 Nat’l Firearms Survey: Updated

Analysis Including Types of Firearms Owned 33 (May 13, 2022)

(Georgetown McDonough School of Business Research Paper No.

4109494), https://bit.ly/3yPfoHw.

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

3d at 597-603. Based on a record “almost entirely supplied by”

Delaware, the District Court decided that Delaware met its Bruen

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

50a

Appendix A

failed to demonstrate a likelihood of success on the merits

of their Second Amendment claim, and the District Court

correctly denied injunctive relief.

B. The balance of the equities and the public

interest also weigh in favor of denying the

preliminary injunction.

Finally, I turn briefly to the balance of the equities

and the public interest.105 I agree with the Majority that

neither factor weighs in plaintiffs’ favor. However, I believe

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

narrowly. While the Majority rightly identifies Delaware’s

interest in the execution of its democratically enacted

laws,106 the state has an equally important interest in the

safety of its citizens.

In recent years, the United States has experienced an

exponential increase in the frequency of mass shootings.

Scholars estimate that only twenty-five mass shootings

105. See Winter v. NRDC, 555 U.S. 7, 26, 32, 129 S. Ct.

365, 172 L. Ed. 2d 249 (2008); Reilly, 858 F.3d at 177-79. There

is no tension between our consideration of the public interest

and Bruen’s disavowal of means-end scrutiny. 597 U.S. at

19. The former is a threshold inquiry that cabins our use of

preliminary injunctions, while the latter concerns the merits of

the constitutional claim. These inquiries are also substantively

different: means-end scrutiny concerns the tailoring of a law to

advance a government objective, while the final two preliminary

injunction factors consider the consequences for the parties and

the public. Cf. Bevis, 85 F.4th at 1203-04.

106. Maj. Op. 24-25.

51a

Appendix A

occurred between 1900 and 1965.107 By contrast, the

United States now endures more than 600 mass shootings

per year—nearly two per day. Assault weapons and LCMs

have been the weapons of choice in many of these mass

shootings, and unsurprisingly, mass shootings involving

assault weapons and LCMs result in far more fatalities

and injuries than those that do not.108 The Delaware

legislature recognized that assault weapons and LCMs

pose a grave “threat to the health, safety, and security”

of Delawareans and acted accordingly.109

107. See Bonnie Berkow itz & Chris A lcantara, Mass

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

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

is a shooting in which four or more people, not including the

perpetrator, are injured or killed, where victims are selected

indiscriminately, and where the shootings are not attributable to

any other underlying criminal activity or circumstance.

108. For example, Delaware submitted a study of 179 mass

shootings that have occurred between 1982 and October 2022. Of

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

capacity (115) were known, 24% involved assault weapons and

63% involved LCMs capable of holding ten or more rounds. Mass

shootings involving assault weapons had an average of 36 fatalities

or injuries per shooting, while those that did not involve assault

weapons had an average number of 10. Similarly, mass shootings

involving LCMs had an average of 25 fatalities or injuries per

shooting, whereas those that did not involve LCMs had an average

of 9. Shooters fired more than 17 rounds in 92% of mass shootings

known to have been committed with an assault weapon and an

average of 116 shots in mass shootings involving LCMs.

109. Del. Code Ann. tit. 11, § 1464.

52a

Appendix A

Confronted with unprecedented violence, Delaware

determined it was in the public interest to address the

proliferation of assault weapons and LCMs—instruments

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

as possible. It is clear to me that the Second Amendment

does not compel Delaware to turn a blind eye to the safety

of its citizens. Moreover, Delaware’s interest in public

safety is relevant to the propriety of denying injunctive

relief.

****

For the above reasons, I agree that we should affirm

the District Court’s order denying injunctive relief, but I

urge that these other relevant factors be kept in mind by

future courts in future cases.

53a

APPENDIX B — Appendix

MEMORANDUM

OPINION

OF THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF DELAWARE, FILED

MARCH 27, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

Civil Action No. 22-951-RGA (Consolidated)

DELAWARE STATE SPORTSMEN’S

ASSOCIATION, INC; BRIDGEVILLE RIFLE &

PISTOL CLUB, LTD.; DELAWARE RIFLE AND

PISTOL CLUB; DELAWARE ASSOCIATION OF

FEDERAL FIREARMS LICENSEES; MADONNA

M. NEDZA; CECIL CURTIS CLEMENTS; JAMES

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

LYNN PRICKETT; and FRANK M. NEDZA,

Plaintiffs,

DELAWARE DEPARTMENT OF SAFETY AND

HOMELAND SECURITY, et al.,

Defendants.

March 27, 2023, Decided

March 27, 2023, Filed

MEMORANDUM OPINION

54a

Appendix B

ANDREWS, UNITED STATES DISTRICT JUDGE:

Before me are Plaintiffs’ motions for a preliminary

injunction. (D.I. 10; Gabriel Gray et al. v. Kathy Jennings,

C.A. No. 1:22-cv-01500, D.I. 4).1 The motions have been

fully briefed. (D.I. 11, 37, 44; Gabriel Gray et al. v. Kathy

Jennings, C.A. No. 1:22-cv-01500, D.I. 5). 2 I heard lengthy

and helpful oral argument on February 24, 2023. (D.L 54).

For the reasons set forth below, the motions are DENIED.

BACKGROUND

Nature and Stage of the Proceedings

On June 30, 2022, the State of Delaware enacted a

package of gun safety bills, two of which are challenged

here. One of them, House Bill 450 (“HB 450”), regulates

assault weapons. 3 An Act to Amend the Delaware Code

1. Unless otherwise indicated, docket citations are to the

docket in No. 22-951.

2. The evidentiary record is limited. Defendants present a

robust evidentiary record, including declarations from five expert

witnesses. (D.I. 38-42). Plaintiffs do not challenge Defendants’

evidence with any testimonial evidence of their own. I note that

nothing I find at this stage will bind my decisions that come later,

once the parties have had more time to develop the evidentiary

record.

3. Plaintiffs call the designation “assault weapons” a

“complete misnomer” that anti-gun publicists developed “in

their crusade against lawful firearm ownership.” (DSSA Br. at

8; Gray Br. at 5-6). Defendants argue that, to the contrary, the

term “assault weapon” derives from the name of the first assault

55a

Appendix B

Relating to Deadly Weapons, H.B. 450, 151st Gen. Assemb.

(Del. 2022) (codified at 11 Del. C. §§ 1464-1467). The other,

Senate Substitute 1 for Senate Bill 6 (“SS 1 for SB 6”),

regulates large-capacity magazines (“LCMs”). An Act to

Amend Title 11 of the Delaware Code Relating to Deadly

Weapons, Senate Substitute 1 for Senate Bill 6, 151st

Gen. Assemb. (Del. 2022) (codified at 11 Del. C. §§ 1441,

1468-1469A).

On July 20, 2022, Plaintiffs in Delaware State

Spor tsmen’s Association , Inc. et al. v. Delaware

Department of Safety and Homeland Security et al,

C.A. No. l:22-cv-00951 (the “DSSA Action”) filed suit

challenging HB 450 under the Second, Fifth, and

Fourteenth Amendments of the U.S. Constitution, the

Commerce Clause, and the Delaware Constitution.4 (D.I.

1). Plaintiffs also alleged preemption. (Id.). On September

9, 2022, Plaintiffs filed an Amended Complaint that added

claims challenging SS 1 for SB 6. (D.I. 5). On November

15, 2022, Plaintiffs moved for a preliminary injunction

barring the enforcement of the statutes, on the basis

weapon—the German “Strumgewehr,” which translates to “storm

rifle”—and that the term has long been used by the gun industry

and government agencies. (D.I. 37 at 11).

As to who is right, I express no opinion. I will nevertheless

refer to the semi-automatic firearms regulated under HB 450 as

“assault weapons,” as that is the term employed by the statute.

4. There is no doubt that some of the defendants in this

action are properly named. Defendants have not raised the issue

of whether this is true of all defendants. Therefore, I do not

address it here.

56a

Appendix B

that the statutes violate their right to keep and bear

arms under the Second and Fourteenth Amendments

and Article I, § 20 of the Delaware Constitution. (D.I. 10

(“DSSA Br.”)). On March 14, 2023, Plaintiffs voluntarily

dismissed without prejudice the Delaware state law claims

brought pursuant to Article I, § 20. (D.I. 56).

On November 16, 2022, Plaintiffs in Gabriel Gray et

al. v. Kathy Jennings, C.A. No. 1:22-cv-01500 (the “Gray

Action”) filed suit challenging HB 450 under the Second

and Fourteenth Amendments. (Gray Action, D.I. 1). On

November 22, 2022, Plaintiffs moved for a preliminary

and permanent injunction barring the enforcement of the

statute, on the basis that the statutes violate their right

to keep and bear arms under the Second and Fourteenth

Amendments. (Gray Action, D.I. 4 (“Gray Br.”)).

On January 12, 2023, Plaintiffs in Christopher

Graham, et al. v. Kathy Jennings, C.A. No. 1:23-00033

(the “Graham Action”) filed suit challenging SS 1 for SB 6

under the Second and Fourteenth Amendments. (Graham

Action, D.I. 1).

On December 20, 2022 , the Gray Action was

consolidated with the DSSA Action. (D.I. 24; Gray

Action, D.I. 12). On March 6, 2023, the Graham Action

was consolidated with the DSSA Action as well. (D.I. 52;

Graham Action, D.I. 8). Trial has been set for November

13-17, 2023. (D.I. 25).

57a

Appendix B

B. The Challenged Statutes

HB 450

HB 450 makes numerous “assault weapons” illegal,

subject to certain exceptions. 11 Del. C. §§ 1464-1467. The

list of prohibited firearms is long. It includes (1) fortyfour enumerated semi-automatic “assault long gun[s],”

including the AR-15, AK-47, and Uzi, 11 Del. C. § 1465(2) ,

(2) nineteen specifically identified semi-automatic “assault

pistol[s],” id. § 1465(3), and (3) “copycat weapon[s],” id.

§ 1465(4). “Copycat weapon[s]” include semi-automatic,

centerfire rifles that can accept a detachable magazine

and which have one of five features, 5 semi-automatic

pistols that can accept a detachable magazine and which

have certain similar enhanced characteristics, and certain

other semi-automatic weapons. Id. § 1465(6).

HB 450 prohibits the manufacture, sale, offer to sell,

purchase, receipt, transfer, possession or transportation

of these weapons, subject to certain exceptions, including

for military and law-enforcement personnel (including

qualified retired law-enforcement personnel). Id.

§§ 1466(a), (b). People who possessed or purchased assault

weapons before the statute became effective can continue

to possess and transport them under certain conditions,

including (i) at their residence and place of business, (ii) at

a shooting range, (iii) at gun shows, and (iv) while traveling

5. The features include a folding or telescoping stock, a

forward pistol grip, a flash suppressor, and a grenade launcher or

flare launcher. 11 Del. C. § 1465(6)(a). Defendants refer to these

features as “military features.” (D.I. 37 at 6).

58a

Appendix B

between any permitted places. Id. § 1466(c). They can also

transfer them to family members. Id.

SS 1 for SB 6

SS 1 for SB 6 makes it illegal “to manufacture, sell,

offer for sale, purchase, receive, transfer, or possess a

large-capacity magazine.” Id. § 1469(a). “Large-capacity

magazine[s]” are those “capable of accepting, or that

can readily be converted to hold, more than 17 rounds of

ammunition.” Id. § 1468(2). The statute exempts many of

the same individuals as HB 450, along with individuals

who have a valid concealed carry permit. Id. § 1469(c).

Unlike HB 450, SS 1 for SB 6 does not grandfather

any magazines. It does, however, require the State to

implement a buy-back program. Id. § 1469(d).

II. LEGAL STANDARD

A preliminary injunction is “an extraordinary remedy,”

and “should be granted only in limited circumstances.”

Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d

Cir. 2004). A movant seeking a preliminary injunction

must establish (1) “that he is likely to succeed on the

merits,” (2) “that he is likely to suffer irreparable harm in

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

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

the public interest.” Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). As

the Supreme Court has noted, a preliminary injunction is

“a drastic remedy, one that should not be granted unless

the movant, by a clear showing, carries the burden of

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Appendix B

persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972,

117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (emphasis in

original) (quoting 11A Charles A lan Wright & A rthur

R. Miller, Federal Practice & Procedure § 2948 at

129-130 (2d ed. 1995)).

The first two factors are the “most critical” factors.

Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir.

2017). The Third Circuit has explained that the first factor,

likelihood of success on the merits, “requires a showing

significantly better than negligible, but not necessarily

more likely than not.” Id. The second factor, irreparable

harm in the absence of preliminary relief, requires a

showing that irreparable harm is “more likely than not.”

Id. If the movant meets these “gateway factors,” “a court

then considers the remaining two factors and determines

in its sound discretion if all four factors, taken together,

balance in favor of granting the requested preliminary

relief.” Id.

III.

DISCUSSION

For the following reasons, I conclude that Plaintiffs

have failed to meet their burden of establishing the first

two preliminary injunction factors: (1) likelihood of success

on the merits, and (2) irreparable harm in the absence of a

preliminary injunction. Winter, 555 U.S. at 20. I therefore

deny Plaintiffs’ motions.6

6. Other district courts have reached the same conclusion

when faced with post-Bruen Second Amendment challenges to

similar statutes. See, e.g., Bevis v. City of Naperville Ill., 2023

U.S. Dist. LEXIS 27308, 2023 WL 2077392 (N.D. 111. Feb. 17,

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Appendix B

Likelihood of Success on the Merits

The governing case is New York State Rifle & Pistol

Association, Inc. v. Bruen, 142 S. Ct. 2111, 213 L. Ed.

2d 387 (2022). I must first determine whether “the

Second Amendment’s plain text covers an individual’s

conduct.” Id. at 2129-30. If the answer is no, then the

Second Amendment does not apply, and the regulation

is constitutional. But if the answer is yes, then “the

Constitution presumptively protects that conduct,” and it

is the government’s burden to “then justify its regulation

by demonstrating that it is consistent with the Nation’s

historical tradition of firearm regulation.” Id. at 2130. Only

after performing this second step “may a court conclude

that the individual’s conduct falls outside the Second

Amendment’s unqualified command.” Id. (cleaned up).

2023) (denying TRO and preliminary injunction where plaintiffs

challenged legislation prohibiting sale of assault weapons and

LCMs), appeal docketed, No. 23-1353 (7th Cir. Feb. 23, 2023);

Ocean State Tactical, LLC v. State of Rhode Island, 2022 U.S. Dist.

LEXIS 227097, 2022 WL 17721175 (D.R.I. Dec. 14, 2022) (denying

preliminary injunction where plaintiffs challenged legislation

prohibiting possession of LCMs), appeal docketed, No. 23-01072

(1st Cir. Jan. 13, 2023); Or. Firearms Fed’n, Inc. v. Brown, 2022

U.S. Dist. LEXIS 219391, 2022 WL 17454829 (D. Or. Dec. 6, 2022)

(denying TRO where plaintiffs challenged legislation prohibiting

sale and restricting use of LCMs), appeal voluntarily dismissed,

No. 22-36011, 2022 U.S. App. LEXIS 34277 (9th Cir. Dec. 12, 2022).

61a

Appendix B

LCMs and Assault Weapons are Protected

by the Second Amendment

The Second Amendment provides: “A well regulated

Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall

not be infringed.” U.S. Const. amend. II. “Like most

rights, the right secured by the Second Amendment is

not unlimited” and is “not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for

whatever purpose.” Bruen, 142 S. Ct. at 2128 (quoting

District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.

Ct. 2783, 171 L. Ed. 2d 637 (2008)). Only if “the Second

Amendment’s plain text covers an individual’s conduct,

[will] the Constitution presumptively protect[] that

conduct.” Id. at 2129-30. To meet this threshold burden,

which Plaintiffs concede is theirs (e.g., D.I. 44 at 2), a

plaintiff must demonstrate that the “textual elements”

of the Second Amendment’s operative clause apply to the

conduct being restricted. See 142 S. Ct. at 2134 (quoting

Heller, 554 U.S. at 592).

Driving the analysis at this step are several key

limitations to the scope of the Second Amendment’s

coverage. First, the Second Amendment “extends, prima

facie, to all instruments that constitute bearable arms.”

Heller, 554 U.S. at 582. Thus, Plaintiffs must show that

the statutes at issue regulate weapons that fall under

the Second Amendment’s definition of “bearable arms.”

Second, the Second Amendment extends only to bearable

arms that are “in ‘common use’ for self-defense today.”

Bruen, 142 S. Ct. at 2143. Thus, Plaintiffs must also show

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Appendix B

that the statutes at issue regulate such arms. Third, the

Second Amendment does not create a right to keep and

carry “dangerous and unusual weapons.” Heller, 554 U.S.

at 627. This limitation shares considerable overlap with

the “in common use” requirement. Whether a weapon is

“in common use” depends on whether it is “dangerous

and unusual.” See id. at 627 (cleaned up) (“[A]s we have

explained ... the sorts of weapons protected were those in

common use at the time. We think that limitation is fairly

supported by the historical tradition of prohibiting the

carrying of dangerous and unusual weapons.”); Bruen, 142

S. Ct. at 2143 (“[T]he Second Amendment protects only

the carrying of weapons that are those in common use at

the time, as opposed to those that are highly unusual in

society at large.” (cleaned up)).

As an initial matter, the parties dispute the scope of

the “common use” limitation described above. Plaintiffs

argue that they “only have to show that the restricted

arms are ... in common use today for lawful purposes” (D.I.

44 at 2), “of which self-defense is but one of many” (id. at

3). Defendants counter that “the Second Amendment does

not protect weapons simply because they are common.”

(D.I. 37 at 32). Instead, say Defendants, Plaintiffs must

show “that assault weapons and LCMs are in ‘common

use’ today for the lawful purpose of self-defense.” (Id.).

Although the Supreme Court has not spoken on

this question directly, it has repeatedly emphasized the

centrality of self-defense to the Second Amendment right.

Heller and McDonald v. Chicago, 561 U.S. 742, 130 S. Ct.

3020, 177 L. Ed. 2d 894 (2010) stand for the proposition

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Appendix B

“that the Second and Fourteenth Amendments protect an

individual right to keep and bear arms for self-defense.”

Bruen, 142 S. Ct. at 2125 (emphasis added) (characterizing

the holding of both cases). In Bruen, the Court held

“that the Second and Fourteenth Amendments protect

an individual’s right to carry a handgun for self-defense

outside the home.” Id. at 2122 (emphasis added). The Court

explained in Heller that self-defense is the “core” of the

Second Amendment right, 554 U.S. at 630, the right’s

“central component,” id. at 599 (emphasis in original), and

the motivation for the Second Amendment’s codification

in a written Constitution. Id. Self-defense was no less

essential in Bruen, which turned on the Court’s conclusion

that, “handguns ... are indisputably in ‘common use’ for

self-defense today.” 142 S. Ct. at 2143 (quoting Heller,

554 U.S. at 629). Notably, Bruen tethered its “common

use” analysis to self-defense. See 142 S. Ct. at 2134-35

(concluding that “[t]he Second Amendment’s plain text

thus presumptively guarantees petitioners Koch and

Nash a right to ‘bear’ arms in public for self-defense,” id.

at 2135); see also id. at 2134 (“Nor does any party dispute

that handguns are weapons ‘in common use’ today for

self-defense”).

Plaintiffs point to various instances in which the

Supreme Court addresses the “common use” requirement

without mentioning self-defense. For example, Plaintiffs

repeatedly highlight the Court’s statement that the

colonial laws at issue “provide no justification for

laws restricting the public carry of weapons that are

unquestionably in common use today,” id. at 2143, arguing

that this supports a broad reading of “in common use.”

64a

Appendix B

(D.I. 44 at 7, 15). But in context, it seems that the Court

was referring to “common use” for self-defense. Indeed,

in the sentence immediately preceding the sentence that

Plaintiffs cite, the Court concluded that “[handguns] are,

in fact, ‘the quintessential self-defense weapon.’” Bruen,

142 S. Ct. at 2143. Plaintiffs also point to an assertion by

the D.C. Circuit that the Supreme Court “said the Second

Amendment protects the right to keep and bear arms for

other lawful purposes, such as hunting.” Heller v. District

of Columbia, 670 F.3d 1244, 1260, 399 U.S. App. D.C.

314 (D.C. Cir. 2011) (citing Heller, 554 U.S. at 630). The

D.C. Circuit appeared to rely on the Court’s statement

in Heller that, in the colonial and revolutionary war era,

“[t]he traditional militia was formed from a pool of men

bringing arms ‘in common use at the time’ for lawful

purposes like self-defense.” Heller, 554 U.S. at 630. The

statement, although certainly favorable to Plaintiffs’ view,

is far from a clear pronouncement on the scope of the right.

As Defendants note, Plaintiffs’ formulation would

seem to “upend settled law.” (Id. at 33). One such law is

the National Firearms Act of 1934, 48 Stat. 1236, which

restricts civilian acquisition and circulation of fully

automatic weapons, such as machine guns. (D.I. 40 at 36).

At oral argument, Defendants presented evidence that,

as of 2016, there were nearly 176,000 legal civilian-owned

machine guns in the United States.7 (D.I. 50-1, Ex. A at

7. Defendants assert in their opposition brief that “there are

over 741,000 registered machine guns in the United States today.

(D.I. 37 at 32). As Defendants acknowledged at oral argument

(D.I. 54 at 99), the 176,000 figure is more precise, as it excludes,

for example, machine guns in law enforcement.

65a

Appendix B

2). That number comes close to the quantity of weapons

that Plaintiffs, in their reply brief, identify as sufficient

for “common use.” (See D.I. 44 at 9) (arguing that “the

sale of approximately 200,000 stun guns was enough for

them to be considered in common use by Justice Alito”

in his concurrence in Caetano v. Massachusetts, 577

U.S. 411, 420, 136 S. Ct. 1027, 194 L. Ed. 2d 99 (2016)

(Alito, J., concurring)). 8 Thus, under Plaintiffs’ logic, an

unqualified “common use” rule could render the National

Firearms Act’s machine gun restrictions constitutionally

suspect. The Supreme Court, however, has said that it

would be “startling” to suggest that those restrictions

might be unconstitutional. Heller, 554 U.S. at 624. The

Supreme Court’s confidence in the constitutionality of the

National Firearms Act therefore casts doubt on Plaintiffs’

argument.

The question is a close one. My sense is that Defendants

are correct, and the “in common use” inquiry turns on

whether a regulated weapon is “in common use” for selfdefense. For the purposes of this opinion, however, the

rule I choose does not affect the outcome of the analysis,

8. Plaintiffs’ characterization of Justice Alito’s concurrence

is slightly off the mark. The 200,000-figure was in reference to

the number of civilians who owned stun guns, not the number of

stun guns that had been sold. Caetano, 577 U.S at 420 (Alito, J.,

concurring). As Plaintiffs note (D.I. 44 at 9), in that concurrence,

“the touchstone for ‘common use’ was ownership.” See Caetano,

577 U.S. at 420 (Alito, J., concurring) (concluding that stun gun

ban violates Second Amendment because “stun guns are widely

owned and accepted as a legitimate means of self-defense across

the country”).

66a

Appendix B

as I conclude that Plaintiffs have shown that at least some

of the prohibited assault weapons and LCMs pass muster

under both versions of the “in common use” requirement.

Assault weapons

The parties do not dispute that assault weapons

belong to the broad category of weapons constituting

“bearable arms.” (See D.I. 54 at 111 (Defendants

acknowledging that, for example, a bazooka would fall

within this category); id. at 14 (Plaintiffs acknowledging

the same)). The sole question, then, is whether assault

weapons satisfy the “in common use” requirement and

are therefore presumptively entitled to constitutional

protection. I think that Defendants’ narrower view of

that requirement—that is, the view that a bearable arm

must be “in common use” for self-defense—is the correct

one. For the following reasons, however, I conclude that

Plaintiffs have established that some—but not all—of the

regulated assault weapons satisfy both Defendants’ and

Plaintiffs’ formulations of the requirement.

I begin with “assault pistols.” Plaintiffs do not devote

much argument to these weapons. In fact, between

Plaintiffs’ opening briefs and joint reply brief, only a

single paragraph specifically addresses whether the

banned assault pistols are “in common use.” In that

paragraph, Plaintiffs assert that the “assault pistols”

listed in HB 450 constitute “common handguns” that

are, per Bruen, undisputedly in common use today for

self-defense (DSSA Br. at 6 (citing Bruen’s recognition

of handguns as “the quintessential defense weapon,” 142

67a

Appendix B

S. Ct at 2119)). Plaintiffs do not, however, accompany this

assertion with any support. This is not enough to satisfy

Plaintiffs’ burden at the preliminary injunction stage. See

Mazurek, 520 U.S. at 972 (emphasizing that the movant

for a preliminary injunction carries a steep burden of

persuasion). I therefore decline to find that assault pistols

are “in common use” and thus “presumptively protect[ed]”

by the Second Amendment. Bruen, 142 S. Ct. at 2111.

Next, I turn to “copycat weapons.” Plaintiffs’

argument on these weapons is scant as well. Although

Plaintiffs assert that “[s]o-called ‘copycat weapons’ and

their specific features ... are also in common use” (Gray

Br. at 7), Plaintiffs do not go on to explain why this is so.

Consequently, I find that Plaintiffs have failed to satisfy

their burden of persuasion as to copycat weapons.

Finally, I turn to “assault long guns.” Here, Plaintiffs

provide ample support for their argument that such

weapons are “in common use” for lawful purposes that

include self-defense. 9 Plaintiffs show that AR-style

rifles—one of the types of “assault long guns” that HB 450

prohibits—are popular. According to one recent survey

of gun owners in the United States, 30.2 percent of gun

owners (approximately 24.6 million Americans) have

owned up to forty-four million AR-15 or similar rifles.

(Gray Br. at 5 (citing William English, 2021 Nat’l Firearms

9. Several of the authorities relied upon by Plaintiffs do

not appear to be publicly available. (E.g., Gray Br. at iv (“Nat ’l

Shooting Sports Found., Inc., Firearms Retailer Survey Report

(2013)”)). As Plaintiffs did not attach those authorities to any of

their briefs, I decline to consider them here.

68a

Appendix B

Survey: Updated Analysis Including Types of Firearms

Owned 1 (May 13, 2022) (Georgetown McDonough School

of Business Research Paper No. 4109494), https://bit.

ly/3yPfoHw)).10 Plaintiffs assert that the number of

assault rifles “in circulation” today “approaches twenty

million.”11 (DSSA Br. at 7). Gun owners seek such rifles

for a variety of lawful uses, including recreational target

shooting, self-defense, collecting, hunting, competition

shooting, and professional use. (Id. at 6 (citing Nat ’l

Shooting Sports F

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