Amicus Curiae Brief — Andrew Hanson, et al., Petitioners v. District of Columbia, et al.

No. 24-936

In the Supreme Court of the United States

ANDREW HANSON, ET AL.,

Petitioners,

V.

DISTRICT OF COLUMBIA, ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 25 OTHER STATES

IN SUPPORT OF PETITIONERS

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

SPENCER J. DAVENPORT

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTION PRESENTED

Whether the Second Amendment to the United States

Constitution allows a categorical ban on arms that are

indisputably common throughout the United States and

overwhelmingly used for lawful purposes (generally) and

self-defense (specifically).

II

TABLE OF CONTENTS

Question Presented .............................................................. I

Introduction and Interests of Amici Curiae .................. III

Summary of Argument ........................................................ 3

Reasons for Granting the Petition...................................... 5

I.

Heller’s “In Common Use” Test Controls, And

It Shows That The District’s Ban Is

Unconstitutional ............................................................ 5

II. Courts Use Tortured Analogies As Means To

Covertly Engage In Interest Balancing ..................... 8

III. Courts Are Incorrectly Analogizing.......................... 11

A. The Second Amendment Goes Beyond The

Individual Right To Self-Defense......................... 12

B. Narrowing Heller To Only Self-Defense

Leads To Poor Analogical Reasoning .................. 15

C. Courts Must Better Scrutinize Their

Analogues ................................................................ 20

Conclusion ........................................................................... 22

III

TABLE OF AUTHORITIES

Page(s)

Cases

Alden v. Maine,

527 U.S. 706 (1999) ....................................................... 12

Aymette v. State,

21 Tenn. 154 (1840) ....................................................... 17

Bevis v. City of Naperville,

85 F.4th 1175 (7th Cir. 2023) ..................... 11, 15, 16, 19

Bianchi v. Brown,

111 F.4th 438 (4th Cir. 2024) ..............3, 9, 11, 15, 16, 19

Caetano v. Massachusetts,

577 U.S. 411 (2016) ................................................... 7, 10

Del. State Sportsmen’s Ass’n, Inc. v. Del.

Dep’t of Safety & Homeland Sec.,

108 F.4th 194 (3d Cir. 2024) ......................................... 15

Del. State Sportsmen’s Ass’n, Inc. v. Del.

Dep’t of Safety & Homeland Sec.,

664 F. Supp. 3d 584 (D. Del. 2023) ................ 8, 9, 15, 17

District of Columbia v. Heller,

554 U.S. 570 (2008) ......................... 2, 3, 4, 5, 6, 8, 10, 11,

12, 13, 14, 15, 18, 19, 21

Duncan v. Bonta,

19 F.4th 1087 (9th Cir. 2021) ..................................... 1, 3

Duncan v. Bonta,

695 F. Supp. 3d 1206 (S.D. Cal. 2023) ................... 20, 21

Duncan v. Bonta,

83 F.4th 803 (9th Cir. 2023) .......................................... 7

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

Duncan v. Bonta,

No. 23-55805, 2025 WL 867583

(9th Cir. Mar. 20, 2025) ...........................9, 10, 11, 16, 20

English v. State,

35 Tex. 473 (1872) ......................................................... 17

Fife v. State,

31 Ark. 455 (1876) ......................................................... 17

Friedman v. City of Highland Park,

784 F.3d 406 (7th Cir. 2015) ......................................... 15

Harrel v. Raoul,

144 S. Ct. 2491 (2024) ..................................................... 2

Hartford v. Ferguson,

676 F. Supp. 3d 897 (W.D. Wash. 2023) ................. 9, 16

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) .................................... 18

Hill v. State,

53 Ga. 472 (1874) ........................................................... 17

Kolbe v. Hogan,

849 F.3d 114 (4th Cir. 2017) ......................................... 15

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................................... 1, 13

N.Y. State Rifle & Pistol Ass’n, Inc. v.

Cuomo,

804 F.3d 242 (2d Cir. 2015) .......................................... 15

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ........................... 1, 2, 3, 4, 5, 6, 8, 9, 10,

11, 13, 14, 15, 20, 21, 22

V

TABLE OF AUTHORITIES

(continued)

Page(s)

Nunn v. State,

1 Ga. 243 (1846) ............................................................. 21

Silvester v. Becerra,

583 U.S. 1139 (2018) ....................................................... 1

State v. Smith,

11 La. Ann. 633 (1856) .................................................. 18

United States v. Cruikshank,

92 U.S. 542 (1875) ......................................................... 13

United States v. Grizzard,

No. CR-24-197, 2024 WL 4859104

(W.D. Okla. Nov. 21, 2024)........................................... 14

United States v. Miller,

307 U.S. 174 (1939) ................................................... 5, 18

United States v. Nutter,

624 F. Supp. 3d 636 (S.D.W. Va. 2022) ....................... 14

United States v. Rahimi,

602 U.S. 680 (2024) ................................................... 6, 16

Statutes

1837 Ga. Acts 90, § 1 ........................................................... 21

Act of May 8, 1792,

ch. 33, 1 Stat. 271 .......................................................... 19

Assize of Arms 1181,

27 Hen. 2 (Eng.) ............................................................ 19

Statute of Winchester 1285,

13 Edw. 1 Stat. Wynton c. 6 (Eng.) ............................ 19

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

Bertrall L. Ross II,

Inequality, Anti-Republicanism, and

Our Unique Second Amendment,

135 HARV. L. REV. F. 491 (2022) ................................. 13

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

The History of Bans on Types of Arms

Before 1900,

50 J. LEGIS. 223 (2024) ........................................... 21, 22

David B. Kopel,

The History of Firearm Magazines

and Magazine Prohibitions,

78 ALB. L. REV. 849 (2015)....................................... 7, 20

David B. Kopel,

The Natural Right of Self-Defense:

Heller’s Lesson For The World,

59 SYRACUSE L. REV. 235 (2008)................................. 12

Douglas Walker, Jr.,

Necessary to the Security of Free

States: The Second Amendment as the

Auxiliary Right of Federalism,

56 AM. J. LEGAL HIST. 365 (2016) ............................... 12

Samuel R. Vasilopulos, Trouble Bruen for

Assault Weapon Bans: A FeatureBased Analysis of the Second

Amendment, 45 N. ILL. U.L. REV. 135,

166-67 (2024).............................................................. 7, 20

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

William Baude & Robert Leider,

The General-Law Right to Bear Arms,

99 NOTRE DAME L. REV. 1467 (2024) ............. 17, 18, 19

INTRODUCTION AND INTERESTS

OF AMICI CURIAE*

Sometimes, old habits die hard. For too long, the

Second Amendment went dormant, offering only limited

rights in a narrow universe of cases in a way inconsistent

with history. But in recent years, the Court has

recognized again that the Amendment is a “fundamental”

preexisting right that is “deeply rooted in this Nation’s

history and tradition.” McDonald v. City of Chicago, 561

U.S. 742, 750, 767 (2010). Now, constitutional text and

history are the polestar for reviewing firearm regulations.

This historical inquiry will often require courts to

“reason[] by analogy.” N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 28 (2022). What it doesn’t require is

“means-end scrutiny,” id. at 19, which is “just window

dressing for judicial policymaking,” Duncan v. Bonta, 19

F.4th 1087, 1148 (9th Cir. 2021) (en banc) (Bumatay, J.,

dissenting).

While this Court has pushed for renewed respect

toward the Second Amendment, things have played out

differently below. Amici States have seen firsthand how

courts across the country have struggled to “afford the

Second Amendment the respect due [to] an enumerated

constitutional right.” Silvester v. Becerra, 583 U.S. 1139,

1140 (2018) (Thomas, J., dissenting from denial of

certiorari). And courts upholding local bans on so-called

assault weapons and standard-capacity magazines

(relabeled as large-capacity magazines) are especially

prone to “contorting” traditional constitutional principles

and subordinating genuine Second Amendment interests.

Under Supreme Court Rule 37.2, amici timely notified counsel of

record of their intent to file this brief.

*

2

Harrel v. Raoul, 144 S. Ct. 2491, 2492 (2024) (statement of

Thomas, J., concerning denial of certiorari).

That story repeats here. The majority below started

on the right track, finding that “the Second Amendment’s

plain text covers” plus-ten magazines and “are in common

use for self-defense today.” Pet.App.12a. But it still

concluded that banning these weapons is consistent with

our Nation’s tradition of firearm ownership. In so

deciding, the court below analogized the District’s plusten magazine ban to nineteenth-century restrictions on

Bowie knives, a uniquely dangerous blade that came to be

associated with dueling and frontier violence. The

majority found this analogy appropriate because both sets

of laws shared the “same [supposed] basic purpose.”

Pet.App.24a. Both laws were thought to “inhibit then

unprecedentedly lethal criminal activity by restricting or

banning weapons that are particularly susceptible to, and

were widely used for, multiple homicides and mass

injuries.” Pet.App.24a-25a.

But by rewriting Heller’s “in common use” test to add

a dangerousness element, lower courts have continued to

interest balance under a different name. At bottom, lower

courts have decided that criminal misuses of firearms (as

in mass shootings) justify complete bans on certain arms.

They then use questionable analogical reasoning to justify

that result. Both Heller and Bruen already rejected that

sort of “subjective dangerousness” reasoning, and the

Court should do so again here. And while the majority

below said that the plus-ten magazine ban was comparable

to laws that addressed weapons capable of unprecedented

lethality, it could only get there by limiting the Second

Amendment solely to individual self-defense. Viewing the

Second Amendment through the correct lens—that it

protects the right to bear arms for community defense,

3

too—the historical analogues the majority relied on below

fail.

The decision here shows that analogies under Bruen

are helpful only when courts have an underlying theory

about how to identify the relevant similarity.

Unfortunately, many courts still don’t grasp the

underlying principles of the Second Amendment. In these

courts, the Second Amendment has become uniquely

“subject to the whimsical discretion of federal judges.”

Bianchi v. Brown, 111 F.4th 438, 483 (4th Cir. 2024)

(Richardson, J., dissenting), petition for cert. filed, Snope

v. Brown, No. 24-203 (Aug. 21, 2024). So “[i]f the Second

Amendment is ever going to provide any real protection,

something needs to change.” Duncan, 19 F.4th at 1160

(9th Cir. 2021) (VanDyke, J., dissenting).

SUMMARY OF ARGUMENT

I. Heller recognized an individual right to possess and

carry arms. Although the right is not unlimited,

exceptions must be based on history and tradition. The

country has no history and tradition of banning arms in

common use for lawful purposes. So the District’s ban on

plus-ten magazines is unconstitutional under Heller.

II. But the majority below—like other courts before

it—circumvented Heller and struck down the law. It did

so by seizing on a single sentence in Bruen that says that

“cases implicating unprecedented societal concerns or

dramatic technological changes may require a more

nuanced approach.” Pet.App.27a (quoting Bruen, 597

U.S. at 27). In the majority’s view, improvements in

firearms technology, such as the development of

semiautomatic weapons, are “dramatic technological

changes”; likewise, mass shootings are “unprecedented

societal concerns” that did not exist at the Founding. See

4

Pet.App.26a-31a. But Heller set the level of generality at

“dangerous and unusual arms,” 554 U.S. at 627, which

means that this Court already accounted for technological

changes and societal concerns in firearms. By adding a

separate dangerousness element to Bruen, courts have

continued to balance subjective, judge-driven interests

under a different name.

III. Making matters worse, courts are incorrectly

analogizing. To analogize well, courts need to start with

what the Second Amendment covers. And although this

Court has said (on several occasions) that the Second

Amendment protects more than just the individual right

to self-defense, lower courts have limited the Second

Amendment to protect only that one right—excluding

firearms that (in their view) resemble firearms used in

military service.

In finding that the plus-ten magazine ban is consistent

with the Nation’s tradition of firearm ownership, the

majority below analogized the law to restrictions on Bowie

knives because both sets of laws addressed “weapons

capable of unprecedented lethality.” Pet.App.25a. But

laws banning Bowie knives and the like targeted weapons

that were useful for criminal purposes and had no publicdefense value. So Bowie-knife bans might be an apt

comparator only if courts ignore the public-defense aspect

and improperly limit the Second Amendment’s purpose to

individual self-defense against crime.

The decision below also doesn’t engage with history in

the right way. In looking to history, this Court has said

that “not all history is created equal.” Bruen, 597 U.S. at

34. Nineteenth-century Bowie-knife bans were less

common than handgun bans. Yet Bruen said that the

handgun bans were insufficient to establish a national

tradition allowing a ban on carrying handguns. What’s

5

more, courts below have forgotten to consider whether

their selected analogues were constitutional at the time

they were enacted.

REASONS FOR GRANTING THE PETITION

I.

Heller’s “In Common Use” Test Controls, And It

Shows

That

The

District’s

Ban

Is

Unconstitutional.

Heller recognized that courts cannot categorically ban

arms that are in common use. To do that, Heller “began

with a ‘textual analysis’ focused on the ‘normal and

ordinary’ meaning of the Second Amendment’s language.”

Bruen, 597 U.S. at 20 (quoting District of Columbia v.

Heller, 554 U.S. 570, 576-77, 578 (2008)). That analysis

suggested that the Amendment’s operative clause—“the

right of the people to keep and bear Arms, shall not be

infringed”—“guarantee[s] the individual right to possess

and carry weapons in case of confrontation” that does not

depend on service in the militia. Heller, 554 U.S. at 592.

And the Second Amendment has an expansive scope: “the

Second Amendment extends, prima facie, to all

instruments that constitute bearable arms, even those

that were not in existence at the time of the founding.” Id.

at 582; see also id. at 581 (relying on founding-era “source

[that] stated that all firearms constituted ‘arms”’).

After holding that the Second Amendment protected

an individual right to self-defense, Heller “relied on the

historical understanding of the Amendment to demark the

limits on the exercise of that right.” Bruen, 597 U.S. at 21.

The Court read United States v. Miller, 307 U.S. 174

(1939), as recognizing that a historical tradition that

prohibited “the carrying of ‘dangerous and unusual

weapons.’” Heller, 554 U.S. at 627. This historical

6

tradition dovetailed with the historical practice of the

militia “bring[ing] the sorts of lawful weapons that they

possessed at home to militia duty”—weapons that were

“in common use at the time.” Id. at 627 (cleaned up).

Taken together, Heller said that the Second Amendment

protects arms “in common use,” so those arms cannot be

banned. That’s why the Court held that the District’s ban

on handguns was unconstitutional. Id. at 636.

Bruen and Rahimi built on Heller’s framework,

directing courts to examine the Nation’s “historical

tradition of firearm regulation” to help delineate the

right’s contours. Bruen, 597 U.S. at 17. If a “new law is

relevantly similar to laws that our tradition is understood

to permit, applying faithfully the balance struck by the

founding generation to modern circumstances,” then the

regulation is lawful under the Second Amendment.

United States v. Rahimi, 602 U.S. 680, 692 (2024) (cleaned

up). Although the Court did not provide an “exhaustive

survey” of relevant similarities, it did identify two

indicators that should guide analogical reasoning: “how”

and “why” the regulations burden the right to keep and

bear arms. Bruen, 597 U.S. at 29. In other words,

whether past and present regulations impose a

“comparable burden” (how) and whether that burden is

“comparably justified” (why) are “central” considerations

when reasoning by analogy. Id. So a historical precursor

does not need to be a “dead ringer” or a “historical twin,”

but it needs to be “analogous enough to pass constitutional

muster.” Id. at 30.

Under a straightforward application of Heller, Bruen,

and Rahimi, then, the District’s ban on magazines holding

more than ten rounds of ammunition is unconstitutional.

Both the majority and dissent below found that “plus-ten

magazines are arms in common use by law-abiding

7

citizens for the lawful purpose of self-defense.”

Pet.App.83a; see Pet.App.11a. As the dissent noted,

“Americans have in their hands and homes an estimated

100 million plus-ten magazines,” and these magazines

come standard with many of the Nation’s most popular

firearms. Pet.App.84a. Indeed, during a week-long

period in which California’s magazine capacity ban was

ruled unconstitutional, law-abiding gun owners likely

purchased more than a million of these magazines—far

more than the 200,000 stun guns that convinced at least

some Justices that stun guns are in common use. See

Samuel R. Vasilopulos, Trouble Bruen for Assault

Weapon Bans: A Feature-Based Analysis of the Second

Amendment, 45 N. ILL. U.L. REV. 135, 166-67 (2024); see

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

J., concurring in the judgment) (“While less popular than

handguns, stun guns are widely owned and accepted as a

legitimate means of self-defense across the country.”).

Heller’s survey of history and tradition also confirms

that “[t]here is no history and tradition of banning arms in

common use for lawful purposes.” Pet.App.77a. If that

weren’t enough, the Nation’s historical tradition shows

that “[f]irearms with greater than ten round capacities

existed even before our Nation’s founding, and the

common use of [so-called large-capacity magazines] for

self-defense is apparent in our shared national history.”

Duncan v. Bonta, 83 F.4th 803, 814 (9th Cir. 2023)

(Bumatay, J., dissenting) (en banc). And rifle magazines

of more than ten rounds had become common by the time

the States ratified the Fourteenth Amendment.

Vasilopulos, supra, at 167; David B. Kopel, The History of

Firearm Magazines and Magazine Prohibitions, 78 ALB.

L. REV. 849, 851 (2015).

8

In sum, Heller said that because handguns are “in

common use,” the District’s “complete prohibition of their

use is invalid.” 554 U.S. at 629. That’s true too for the

District’s ban on plus-ten magazines. Especially given the

prevalence of similar anti-historical bans, the Court

should grant the petition to say as much.

II.

Courts Use Tortured Analogies As Means To

Covertly Engage In Interest Balancing.

A. The majority acknowledged Heller’s “in common

use” test,” Pet.App.12a, as well as the lack of any tradition

of regulating plus-ten magazines. Pet.App.26a. But the

court still decided that right-on-point history was

irrelevant because of the “societal concern with mass

shootings or other widespread homicidal criminality”

supported by “dramatic technological changes [that have]

vastly increased [firearms’] capacity and the rapidity of

firing.” Pet.App.26a. And so it considered the District’s

proposed historical analogues to see if the regulation was

consistent with the Nation’s alleged historical tradition of

restricting

“weapons

particularly

capable

of

unprecedented lethality.” Pet.App.19a.

By continuing to analogize even after finding common

use, the majority went off course. This Court explained in

Bruen that its two-step approach is aimed at determining

whether a challenged law is “consistent with this Nation’s

historical tradition of firearm regulation.” 597 U.S. at 17.

Historical analogues are in service of this objective. By

continuing to analogize after it had already found that

plus-ten bans are inconsistent with the Nation’s historical

tradition, the majority made analogical reasoning the

objective rather than a tool to determine the relevant

historical tradition. See also Del. State Sportsmen’s Ass’n,

Inc. v. Del. Dep’t of Safety & Homeland Sec., 664 F. Supp.

9

3d 584, 599 (D. Del. 2023) (dismissing existence of multishot firearms during the founding eras in favor of

unprecedented societal concerns), aff’d, 108 F.4th 194 (3d

Cir. 2024), cert. denied sub nom., Gray v. Jennings, No.

24-309, 2025 WL 76443 (U.S. Jan. 13, 2025). The majority

viewed analogical reasoning as the tail that wags the dog.

This reasoning gets things backwards. By Bruen’s

express terms, any test that would justify a ban on

magazines possessed in the hundreds of millions cannot be

consistent with the Second Amendment.

B. Worse, while Bruen expressly repudiated interest

balancing, lower courts—like the majority below—

continue to balance interests under the guise of analogical

reasoning. These courts have latched on to the “dramatic

technological changes” and “unprecedented societal

concerns” language from Bruen to justify complete bans

on assault weapons and certain magazines.

See

Pet.App.27a-31a; Bianchi, 111 F.4th at 463-64; Duncan v.

Bonta, No. 23-55805, 2025 WL 867583, at *13 (9th Cir.

Mar. 20, 2025) (en banc); Hartford v. Ferguson, 676 F.

Supp. 3d 897, 907 (W.D. Wash. 2023); Del. State

Sportsmen’s Ass’n, Inc., 664 F. Supp. 3d at 598.

The logic in these cases is as simple as it is wrong:

Bruen says to account for “unprecedented societal

concerns.” Lower courts think mass shootings are

“unprecedented.” Pet.App.27a-28a. And they note how

modern firearms “do not have the propensity to jam or

misfire,” which makes them a “dramatic technological

change.” Pet.App.27a-28a; but see, e.g., Duncan, 2025 WL

867583, at *13 n.5 (“The Founders likely could not have

imagined the weaponry available today, so in that

sense every Second Amendment case involves dramatic

technological changes.”). So bans on items dubbed

10

“assault weapons” and “large-capacity magazines” are

said to be constitutional.

But arguments about “dramatic technological

changes” are incompatible with Heller’s “in common use”

test. The “in common use” test looks at arms that are in

common use by Americans now, which necessarily

includes advancements in firearm technology. Bruen put

this commonsense notion into action by rejecting

historical “laws [that] prohibited the carrying of handguns

because they were considered ‘dangerous and unusual

weapons”’ at that time; those laws would “provide no

justification for laws restricting the public carry of

weapons that are unquestionably in common use today.”

Bruen, 597 U.S. at 47. And Heller set the level of

generality for bannable arms at “dangerous and unusual

weapons”—note the conjunction there. 554 U.S. at 627. It

did so even though “the Court was told that the handguns

at issue there are used in an extraordinary percentage of

this country’s well-publicized shootings, including the

large majority of mass shootings.” Pet.App.88a-89a

(cleaned up). So “the relative dangerousness of a weapon

is irrelevant when the weapon belongs to a class of arms

commonly used for lawful purposes.” Caetano, 577 U.S. at

418 (Alito, J., concurring in the judgment).

Underlying the “in common use” test is the idea that

the American people—not the government—choose their

desired arm. In Heller, it mattered that “the American

people have considered the handgun to be the

quintessential self-defense weapon.” Heller, 554 U.S. at

629. In the same way, Americans have chosen firearms

whose magazines hold more than ten rounds of

ammunition for many lawful purposes. See Duncan, 2025

WL 867583, at *29 (Bumatay, J., dissenting) (noting that

11

“magazines holding more than ten rounds are the most

common magazines in the country”).

By adding a dangerousness test designed to override

the “in common use” test, courts have adopted “the very

sort of means-end scrutiny that Bruen explicitly forbids

courts from applying in the Second Amendment context.”

Bianchi, 111 F.4th at 479 (Gregory, J., concurring).

Nothing has changed except that courts now “cloak[]

interest balancing under the guise of ‘tradition.’” Duncan,

2025 WL 867583, at *47 (Bumatay, J., dissenting)

(comparing Ninth Circuit’s analysis pre- and post-Bruen

and noting “little” change). Worse, “even the regulations

that failed in Heller or Bruen would survive” the lower

courts’ dangerousness test. Id. at *52 (VanDyke, J.,

dissenting).

The Court should grant the petition to remind them of

what analogies are meant to do—and repudiate any effort

to use them to backdoor old, flawed logic back into the test.

III.

Courts Are Incorrectly Analogizing.

Even if analogies were necessary here, they weren’t

used correctly. To analogize well, courts need to know the

Second Amendment’s purpose. Heller confirmed that the

Second Amendment “guarantee[s] the individual right to

possess and carry weapons in case of confrontation.” 554

U.S. at 592. Although Heller clarified that the Second

Amendment covers individual self-defense, it noted other

lawful purposes for keeping and bearing arms, such as

preserving the militia and hunting. Id. at 599. But after

Heller and Bruen, courts have narrowed the Second

Amendment to protect only keeping and bearing arms for

individual self-defense against crime. E.g., Pet.App.11a;

Bianchi, 111 F.4th 438; Bevis v. City of Naperville, 85

F.4th 1175 (7th Cir. 2023), cert. denied, Harrel v. Raoul,

12

No. 23-880, 144 S. Ct. 2491 (July 2, 2024). Narrowing the

scope of the right to personal self-defense alone results in

inapt analogies that limit Second Amendment rights. And

courts shouldn’t be allowed to read the Amendment’s

expressly stated purpose of preserving the militia out of

the Constitution.

A. The Second Amendment Goes Beyond The

Individual Right To Self-Defense.

The Second Amendment right is not a right “granted

by the Constitution” but “is a pre-existing natural right

which is recognized and protected by the Constitution.”

David B. Kopel, The Natural Right of Self-Defense:

Heller’s Lesson For The World, 59 SYRACUSE L. REV. 235,

236 (2008). “The very text of the Second Amendment

implicitly recognizes the pre-existence of the right and

declares only that it ‘shall not be infringed.”’ Heller, 554

U.S. at 592.

The right is preexisting because it provides the means

to protect all other rights. Legal theorists such as William

Blackstone have described it as an “auxiliary” right that

“serve[s] principally” as a “barrier[] to protect and

maintain inviolate the three great and primary rights[] of

personal security, personal liberty, and private property.”

2 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES:

WITH NOTES OF REFERENCE TO THE CONSTITUTION AND

LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED

STATES; AND OF THE COMMONWEALTH OF VIRGINIA 140

(1803); see also Alden v. Maine, 527 U.S. 706, 715

(1999) (citing Blackstone’s works as the “preeminent

authority on English law for the founding generation”). In

that way, the right to keep and bear arms “serve[s] the

purpose of protecting the people against governmental

oppression or tyrannical usurpation of power.” Douglas

13

Walker, Jr., Necessary to the Security of Free States: The

Second Amendment as the Auxiliary Right of

Federalism, 56 AM. J. LEGAL HIST. 365, 368 (2016).

Indeed, the right has sometimes been seen as a protection

for the States themselves from the same threat. See

Bertrall L. Ross II, Inequality, Anti-Republicanism, and

Our Unique Second Amendment, 135 HARV. L. REV.

F. 491, 497 (2022).

Because of its importance, since our Nation’s founding,

the Second Amendment has sought to preserve the

“ancient right” to keep and bear arms. Heller, 554 U.S. at

599. And preservation is the Amendment’s only goal:

it “has no other effect than to restrict the powers of the

national government.” United States v. Cruikshank, 92

U.S. 542, 553 (1875). These restrictions are designed to

allow “individual self-defense,” which this Court has

explained is “the central component of the Second

Amendment.” McDonald, 561 U.S. at 767 (cleaned up).

And there is “no doubt, on the basis of both text and

history, that the Second Amendment conferred

an individual right.” Heller, 554 U.S. at 595 (emphasis

added). This Court has emphasized the individualized

nature of the right, too, declaring that there is no more

“acute” need than the “defense of self, family, and

property.” McDonald, 561 U.S. at 767. Indeed, the

individual right to arms for self-defense is “deeply rooted

in this Nation’s history and tradition.” Id. at

767 (quoting Washington v. Glucksberg, 521 U.S. 702, 721

(1997)).

While this Court has focused on the core individual

right to self-defense, see Bruen, 597 U.S. at 19-20; Heller,

554 U.S. at 599, it has never limited the right to individual

self-defense. “[P]reserving the militia” and “hunting” are

additional legitimate reasons “Americans valued the

14

ancient right.” Heller, 554 U.S. at 599; see also id. at 63637 (Stevens, J., dissenting) (framing the question in Heller

as “[w]hether [the Second Amendment] … protects the

right to possess and use guns for [lawful] nonmilitary

purposes like hunting and personal self-defense”). So “the

original public meaning of the Second Amendment”

contemplates “an individual right to possess firearms for

both self and collective defense.” United States v.

Grizzard, No. CR-24-197, 2024 WL 4859104, at *4 (W.D.

Okla. Nov. 21, 2024); see also, e.g., United States v. Nutter,

624 F. Supp. 3d 636, 644 (S.D.W. Va. 2022) (explaining how

bans can “reach the core purposes of the Second

Amendment, preventing individuals from using firearms

to defend themselves (and from engaging in collective

defense, should that become relevant to modern life)”).

Both Heller and Bruen confirm that the right to “bear

arms” includes the right “of being armed and ready for

offensive or defensive action in a case of conflict with

another person.” Heller, 554 U.S. at 584 (citation

omitted); Bruen, 597 U.S. at 31; see also Heller, 554 U.S.

at 581 (noting that the definition of “arms” included

“instruments of offence generally made use of in war”

(citation omitted)). As Heller explained, the right to keep

and bear arms “was by the time of the founding

understood to be an individual right protecting

against both public and private violence.” 554 U.S. at

594 (emphasis added). And the text’s prefatory clause

proclaims that one of its purposes was to preserve the

“militia.” The militia, of course, did not exist to promote

individual self-defense. Rather, it was “useful in repelling

invasions and suppressing insurrections,” “render[ed]

large standing armies unnecessary,” and enabled the

people to be “better able to resist tyranny,” id. at 597-98.

15

B. Narrowing Heller To Only Self-Defense

Leads To Poor Analogical Reasoning.

After Heller and Bruen, courts have narrowed the

Second Amendment to protect keeping and bearing arms

exclusively for individual self-defense against crime. See,

e.g., Pet.App.119a-120a (district court opinion); Bianchi,

111 F.4th at 451-52 (rejecting communal self-defense);

Bevis, 85 F.4th at 1199 (“[T]he relevant question is what

are the modern analogues to the weapons people used for

individual self-defense.”); Del. State Sportsmen’s Ass’n,

Inc., 664 F. Supp. 3d at 602; Kolbe v. Hogan, 849 F.3d 114,

137 (4th Cir. 2017); Friedman v. City of Highland Park,

784 F.3d 406 (7th Cir. 2015); N.Y. State Rifle & Pistol

Ass’n, Inc. v. Cuomo, 804 F.3d 242, 263 (2d Cir. 2015); see

also Del. State Sportsmen’s Ass’n, Inc. v. Del. Dep’t of

Safety & Homeland Sec., 108 F.4th 194, 207 (3d Cir. 2024)

(Roth, J., concurring).

When evaluating the

constitutionality of gun control laws, modern cases contain

virtually no discussion of the Second Amendment’s

military objective—the one aim provided in the

Amendment’s text.

Consider the Seventh Circuit, which said that firearms

used by the military may be banned, whether as a matter

of text or history. Bevis, 85 F.4th at 1197. This argument

flips Heller on its head. In Heller, this Court rejected the

argument that handguns could be banned from private use

because the Second Amendment protected only

ownership of firearms in connection with militia service.

The Court held that the Second Amendment did

not only protect the use of arms for militia purposes but

rather for all lawful purposes, including individual selfdefense. Heller, 554 U.S. at 581, 627.

The decision below, like other decisions embracing the

same rationale, reads Heller’s statement that the Second

16

Amendment protects individual self-defense as a silent

endorsement that self-defense limits the Amendment’s

protections, too. Pet.App.12a. That choice effectively

reads the Amendment’s stated purpose of preserving the

militia out of the Constitution altogether. The dissent

below rightly rebutted that this Court has “often noted

other lawful purposes for keeping and bearing arms, in

addition to self-defense,” but said that either formulation

worked fine in the case because the majority presumed

that plus-ten magazines are in common use by law-abiding

citizens for self-defense. Pet.App.83a & n.171.

That’s right as far as the “in common use” test goes,

but it matters what the Second Amendment protects for

the analogical inquiry. “Why and how the regulation

burdens the right are central to this inquiry.” Rahimi,

602 U.S. at 692. So a court that believes that the Second

Amendment exclusively protects individual self-defense

against crime will be more likely to find a “reasonable

regulation” than a court who recognizes that the

Amendment additionally protects the right to bear arms

for community defense.

The majority below shows why. After rejecting many

analogues, the majority upheld the plus-ten magazine ban

because it viewed the regulation as analogous to

“historical restrictions on particularly dangerous weapons

and on the related category of weapons particularly

capable of unprecedented lethality.” Pet.App.19. The

specific laws to which the court pointed included

restrictions on Bowie knives, sawed-off shotguns, and

machine guns. Pet.App.19, 23. Other courts have used

those same analogies to uphold similar laws. See Bianchi,

111 F.4th at 467-71; Bevis, 85 F.4th at 1199-1202; Duncan,

2025 WL 867583, at *16-17; Hartford, 676 F. Supp. 3d at

17

904; Del. State Sportsmen’s Ass’n, Inc., 664 F. Supp. 3d at

600.

While at first this analogy seems reasonable, they get

the laws regulating Bowie knives and the like backwards.

These weapons were banned for two reasons: “(1) these

weapons were particularly useful for criminal purposes,

and (2) these weapons had no military or public defense

value.” William Baude & Robert Leider, The GeneralLaw Right to Bear Arms, 99 NOTRE DAME L. REV. 1467,

1499-1500 (2024) (emphasis added). For instance, the

majority below cited a Tennessee case that sustained a

conviction of a man who concealed a Bowie knife.

Pet.App.20a-21a. The majority relied on one paragraph

from the case for its analogue analysis: “the use of those

weapons which are usually employed in private broils, and

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

assassin. These weapons … could not be employed

advantageously in the common defence of the citizens.”

Pet.App.21a (quoting Aymette v. State, 21 Tenn. 154, 158

(1840)). But the majority omitted a key part of the

Tennessee court’s statement—that “[t]hese weapons

would be useless in war.” Aymette, 21 Tenn. at 158; accord

Hill v. State, 53 Ga. 472, 475 (1874) (calling a Bowie knife

a “relic[] of past barbarism” that would not be “necessary

for a militiaman”); English v. State, 35 Tex. 473, 477 (1872)

(“Were a soldier on duty found with [a Bowie knife] about

his person, he would be punished for an offense against

discipline.”), abrogated on other grounds by Bruen, 597

U.S. at 64-67.

Aymette wasn’t an outlier in acknowledging the

collective-defense aspect of the Second Amendment.

Aymette’s view that arms useful for militia service fell

within the core of the Second Amendment is consistent

with other nineteenth-century courts. See, e.g., Fife v.

18

State, 31 Ark. 455, 458 (1876) (“[T]he arms which [the

Second Amendment] guarantees American citizens the

right to keep and to bear, are such as are needful to, and

ordinarily used by a well regulated militia.”); State v.

Smith, 11 La. Ann. 633, 633 (1856) (“The arms there [in

the Second Amendment] spoken of are such as are borne

by a people in war, or at least carried openly.”). Legal

treatises agreed that the Second Amendment protected

arms useful for militia service. See Baude, supra, at 1500

(collecting treatises). While courts debated whether

handguns were arms or how far States could go in

regulating public carry, “not even the most restrictive

courts debated whether rifles and muskets designed for

military use fell within the ‘arms’ protected by the right to

keep and bear arms.” Id. at 1500-01.

This Court also understood that the right to keep and

bear arms includes at least those arms appropriate for

militia service. “[W]hen called for service [able-bodied]

men were expected to appear bearing arms supplied by

themselves and … in common use at the time.” Miller,

307 U.S. at 179 (emphasis added); see also Heller, 554 U.S.

at 636 (Stevens, J., dissenting) (noting that it is “clear that

[the Second Amendment] does encompass the right to use

weapons for certain military purposes”). The inquiry then

is not whether the weapon is dangerous but whether it is

“dangerous and unusual.” Heller, 554 U.S. at 627. So

M-16 rifles and the like have been permissibly banned

because they are dangerous and not in common use, see

Heller v. District of Columbia, 670 F.3d 1244, 1288 (D.C.

Cir. 2011) (Kavanaugh, J., dissenting), while AR-15s and

other plus-ten arms cannot be categorically banned

because they are in common use, id.

Despite this, both the Fourth and Seventh Circuits

have declared that so-called assault weapon bans are

19

constitutional because they prohibit weapons that are

useful for military service. See Bevis, 85 F.4th 1175;

Bianchi, 111 F.4th 438. Both courts understood Heller to

divide arms into two categories: military arms (the M-16

rifle) and civilian arms for self-defense (a handgun).

Bevis, 85 F.4th at 1195; Bianchi, 111 F.4th at 450-51. And

both courts found that semiautomatic rifles were closer to

military arms than to self-defense arms, so those weapons

were categorically unprotected by the Constitution.

Bevis, 85 F.4th at 1195; Bianchi, 111 F.4th at 461.

But neither the Fourth nor the Seventh Circuit

grappled with caselaw or treatises that found that military

arms were within the core of the right. Nor did they look

at “legislative precedents, from the Assize of Arms in 1181

through the Militia Act of 1792, all of which compelled

ordinary citizens to have military arms at the ready.”

Baude, supra, at 1501; see, e.g., Assize of Arms 1181, 27

Hen. 2 (Eng.); Statute of Winchester 1285, 13 Edw. 1 Stat.

Wynton c. 6 (Eng.); Act of May 8, 1792, ch. 33, 1 Stat. 271.

Instead, these cases focus on the Second Amendment

right of individual self-defense to the exclusion of other

aspects of the right. From there, courts focus on the

“dangerous and unusual” dicta in Heller to find that AR15s and the like could be banned. Bevis, 85 F.4th at 1190.

This wayward analysis begins at the foundational level—

the historical understanding of the right to keep and bear

arms.

The majority below at least rejected the district court’s

view that the Second Amendment does not protect

weapons that are “most useful” in the military context.

See Pet.App.11a. But the majority’s proper view of the

Second Amendment on that matter did not carry over to

its analogical inquiry. It missed that Bowie knives were

poor analogues precisely because they had no military or

20

public defense value. And it missed that machineguns

were never in common use.

C. Courts Must

Analogues.

Better

Scrutinize

Their

Cherry-picked history doesn’t help anybody. In

Bruen, this Court explained that “when it comes to

interpreting the Constitution, not all history is created

equal.” 597 U.S. at 34. The same is true for analogues.

What principle lies behind the historical analogue also

matters. Pet.21-22. Drawing historical principles at too

high a level of generality would “swallow[] the entire

Second Amendment.” Duncan, 2025 WL 867583, at *46

(Bumatay, J., dissenting). In practice, the majority below

and courts elsewhere hunt for a historical analogue to

validate a regulation even if it is a poor fit and ignore

historical analogues that confirm the invalidity of the

restriction.

Start with the relevant history, which shows that

repeating arms with greater than 10-round capacities

predate the Second Amendment and were common by the

ratification of the Fourteenth Amendment.

See

Vasilopulos, supra, at 167; Kopel, The History of Firearm

Magazines, supra, at 851. That should end the historical

analysis. This Court in Bruen considered only historical

regulations on the carrying of handguns—it did not

consider any laws regulating any other non-handgun for

which carry was historically restricted. That’s because

“historical firearm regulations are obviously more likely

to be relevant analogues for modern firearm restrictions.”

Duncan v. Bonta, 695 F. Supp. 3d 1206, 1250 (S.D. Cal.

2023). And so when a regulation has a dead ringer that

speaks conclusively to the regulation’s constitutionality,

the analysis ends.

21

Next, the relevant historical analogues the majority

identified do not rescue the District’s law. While dozens

of state and territorial legislatures enacted laws about

Bowie knives, “[p]rohibitory laws for these blades are

fewer than the number of bans on carrying handguns.”

David B. Kopel & Joseph G.S. Greenlee, The History of

Bans on Types of Arms Before 1900, 50 J. LEGIS. 223, 382

(2024). And Bruen found that the handgun laws were

insufficient to establish a national tradition allowing a ban

on carrying handguns. Bruen, 597 U.S. at 38-39. What’s

more, even in the jurisdictions where Bowie knives were

banned, there was “little evidence of actual prosecutions

for simply possessing a bowie knife … [the] law was

generally disregarded.” Duncan, 695 F. Supp. 3d at 1251

(citing Day v. State, 37 Tenn. 496, 499 (1858) (“It is a

matter of surprise that these sections of this act [a law

prohibiting the concealed carrying of Bowie knives], so

severe in their penalties, are so generally disregarded in

our cities and towns.”) (emphasis added)).

A larger issue with determining a relevant historical

analogue is that courts do not consider whether their

chosen historical governmental regulation honored

constitutional rights. One example is an 1837 Georgia law

banning most handguns and “Bowie or any other kinds of

knives, manufactured and sold for the purpose of wearing

or carrying the same as arms of offence or defence; pistols,

dirks, sword-canes, spears.” 1837 Ga. Acts 90, § 1. The

Supreme Court of Georgia declared the 1837 statute

unconstitutional to the extent it limited one’s

constitutional right to carry arms openly. Nunn v. State,

1 Ga. 243, 251 (1846). Heller relied on Nunn in recognizing

the scope of the Second Amendment. See Heller, 554 U.S.

at 612. Add on top of that, the States that “entirely banned

carry of Bowie knives, daggers, or other arms are almost

entirely the same as the few that excessively restricted

22

handgun carry.” Kopel and Greenlee, supra, at 386. And

Bruen, of course, shows that those sorts of laws are

unconstitutional. So an historical analogue can only be

useful if it itself would have been constitutional—

something the majority below didn’t even consider.

So the Court should grant the petition to remind lower

courts that it’s not enough just to find a ban or two that’s

arguably similar. Courts must also consider their

pervasiveness, their constitutionality, and the degree to

which more similar weapons and firearms were permitted.

* * *

Since Bruen, courts have purported to use text,

history, and tradition to determine whether firearm law

restrictions are consistent with this Nation’s historical

tradition of firearm regulation. In practice, however,

lower courts have continued to use whatever means

necessary to uphold laws that have prevented most

citizens in those jurisdictions from exercising the right to

bear arms. Until this Court steps in, this will continue

happening.

CONCLUSION

The Court should grant the petition for certiorari.

23

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

SPENCER J. DAVENPORT

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

24

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