The Supreme Court is already hanging on to two lawsuits dealing with bans on so-called assault weapons and “large capacity” magazines, but there are more cases that will soon be making their way to the High Court, including a challenge to Washington, D.C.’s prohibition on commonly owned semi-automatic long guns and ammunition magazines that can hold more than ten rounds.
The D.C. Circuit Court of Appeals did conclude in Hanson v. D.C. that the plaint text of Second Amendment covers those magazines, and even acknowledged they’re “in common use for self-defense today.” But the appellate court went on to conclude that D.C.’s ban is “consistent with our Nation’s tradition of firearm ownership”; pointing to 19th century laws prohibiting Bowie knives as historically analogous to the magazine ban in our nation’s capital.
Now a group of 26 Republican attorneys general, led by West Virginia AG JB McCuskey, is asking SCOTUS to grant cert to Hanson, and to strike down both the magazine ban at the heart of the litigation as well as the District’s ban on modern sporting rifles. In an amicus brief filed with the Supreme Court, the attorneys general argue that the “common use” test laid out in Heller is enough to invalidate D.C.’s restrictions, and say it’s up to SCOTUS to halt the trend of lower courts using “tortured analogies” as a way to covertly engage in interest balancing instead of adhering to the text, history, and tradition test SCOTUS says must be used when looking at modern day gun laws.
The majority acknowledged Heller’s “in common use” test,” as well as the lack of any tradition of regulating plus-ten magazines. 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.” 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.”
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.” 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.
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.
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.
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.” And they note how modern firearms “do not have the propensity to jam or misfire,” which makes them a “dramatic technological change.” So bans on items dubbed “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.” And Heller set the level of generality for bannable arms at “dangerous and unusual weapons”—note the conjunction there. 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.” 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. at418 (Alito, J., concurring in the judgment).
That’s a hugely important point that has been routinely ignored by appellate courts around the country who’ve upheld semi-auto and “large capacity” magazine bans by declaring that acts of mass violence are unprecedented societal concerns, and that virtually all semi-automatic long guns are a dramatic technological change over multi-shot lever action rifles or even semi-automatic long guns like the M1 Garand. Handguns are, by far, the most commonly used gun in violent crimes (including mass shootings), but the Supreme Court has already established that a handgun ban is off the table as far as the Constitution is concerned.
These AGs aren’t asking SCOTUS to come up with some new test or take its judicial reasoning in a new direction. They’re simply asking the justices to adhere to what they’ve previously said in Heller, McDonald, Caetano, and Bruen. If they do that, then D.C.’s magazine ban falls, along with the bans on so-called assault weapons in Washington, D.C., Maryland, California, New York, Illinois, and a handful of other states.
Of course, it’s an open question as to whether or not SCOTUS is willing to do that. They’ve been holding on to cases dealing with Maryland’s ban on “assault weapons” and Rhode Island’s ban on “large capacity” magazines for months now, and we have no reason why. The AGs have presented a compelling argument in favor of the justices taking up this challenge, but their rationale could just as easily apply to Snope and Ocean State Tactical as well.
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