Bruen Step 1: The Plain Text Covers Plaintiffs’ Conduct

The “textual analysis focuse[s] on the normal and ordinary meaning of the Second Amendment’s language.” Bruen, 142 S. Ct. at 2127 (citing Heller, 554 U.S. at 576–577, 578) (internal quotation marks omitted). Plaintiffs desire to acquire and possess the banned “assault weapons” and magazines. Thus, the first issue is whether the plain text of the Second Amendment covers this conduct. The plain text 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. In Heller, the Court held that a handgun is an “arm” within the meaning of the Second Amendment. 554 U.S. at 581, 628–29. In reaching that conclusion, the Court noted that, as a general matter, the “18th-century meaning” of the term “arms” is “no different from the meaning today.” Id. at 581. Then, as now, the Court explained, the term generally referred to “weapons of offence, or armour of defence.” Id. (cleaned up). The Court further noted that all relevant sources of the original public meaning of “arms” agreed that “all firearms constituted ‘arms’” within the then-understood meaning of that term. Id. And, just as the scope of protection afforded by other constitutional rights extends to modern variants, so too 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. Thus, the banned firearms are obviously “arms” covered by the plain text and thus prima facia protected. (Whether they are actually protected is a matter resolved at the second step.)

In addition to the obvious case of firearms, the general definition of “arms” in the Second Amendment, “covers modern instruments that facilitate armed self-defense.” Bruen, 142 S. Ct. at 2132. The magazines banned by the State fit neatly within this definition because they are essential to the operation of modern semi-automatic firearms. See Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v. Att’y Gen. New Jersey, 910 F.3d 106, 116 (3d Cir. 2018), abrogated on other grounds by Bruen.

In summary, the Plaintiffs’ conduct in seeking to acquire and possess the banned “assault weapons” and magazines is covered by the plain text of the Second Amendment. Their conduct is, therefore, presumptively protected by the Constitution.

Bruen Step 2: Because the Banned Arms are in Common Use, the State Cannot Meet its Burden

The State retained Dr. Louis Klarevas as an expert in this matter. Dr. Klarevas estimated that there are approximately 24.4 million “assault weapons” in circulation in American society. Dr. Klarevas also stated that in 2022 in the United States, 63 people were killed in seven mass shootings. Thus, according to Defendants’ own expert, at least 23,999,999,937 of the 24.4
million “assault weapons” in circulation were not used in mass shootings last year. Defendants insist that the 99.9999% of such weapons that were not used in mass shootings last year may be banned because of the .0001% that were. Defendants are wrong.

The panel used the AR-15 semi-automatic rifle as the paradigmatic example of the kind of weapon banned by the Act. Slip op. 6. The State’s own expert acknowledged that Americans own tens of millions of AR-15 and similar rifles, and the overwhelming majority of those weapons are used for lawful purposes. Under the Supreme Court’s precedents, particularly Heller, “that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.” Friedman v. City of Highland Park, Ill., 577 U.S. 1039 (2015) (Thomas, J., joined by Scalia, J., dissenting from denial of certiorari) (emphasis added). The same is true for the so-called “large capacity magazines” banned by the Act. Duncan v. Bonta, 83 F.4th 803, 816 (9th Cir. 2023) (Bumatay, J., dissenting from order granting stay) (quoting Justice Thomas’s dissent in Friedman).

Indeed, this is Heller’s central holding. The Court performed an exhaustive search of the historical record and concluded that no Founding-era regulation “remotely burden[ed] the right of self-defense as much as an absolute ban” on a weapon in common use. Id., 554 U.S. at 632. Thus, laws that ban weapons in common use for lawful purposes are categorically unconstitutional. Id., at 628. This necessarily means that the State cannot carry its burden under Bruen’s step two (the history and tradition step). After an exhaustive search, Heller concluded that it is impossible to demonstrate that a ban of a weapon in common use is consistent with the Nation’s history and tradition of firearms regulation. It follows that the State’s ban on weapons in common use for lawful purposes, like the ban at issue in Heller, is categorially unconstitutional.
—id. at 1–8