Delaware State Sportsmen’s Association, Inc. v. Delaware Department of Safety & Homeland Security

PRECEDENTIAL
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
v.
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
v.

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ATTORNEY GENERAL OF DELAWARE
CHRISTOPHER GRAHAM; OWEN STEVENS;
FIREARMS POLICY COALITION, INC.;
SECOND AMENDMENT FOUNDATION,
Appellants in No. 23-1634
v.
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
_______________
Argued: March 11, 2024
Before: BIBAS, MONTGOMERY-REEVES, and ROTH,
Circuit Judges
(Filed: July 15, 2024)

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Erin E. Murphy [ARGUED]
CLEMENT & MURPHY
706 Duke Street
Alexandria, VA 22314
Francis G.X. Pileggi
LEWIS BRISBOIS BISGAARD & SMITH
500 Delaware Avenue, Suite 700
Wilmington, DE 19801
Counsel for Appellants Delaware State Sportsmen’s Associ-
ation 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; and Frank M. Nedza
Paul D. Clement
Erin E. Murphy [ARGUED]
Mariel A. Brookins
Matthew Rowen
CLEMENT & MURPHY
706 Duke Street
Alexandria, VA 22314
Counsel for Amicus Appellant National Shooting Sports
Foundation
William V. Bergstrom
John D. Ohlendorf [ARGUED]
Peter A. Patterson
David H. Thompson

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COOPER & KIRK
1523 New Hampshire Avenue, N.W.
Washington, DC 20036
Bradley Lehman
GELLERT SCALI BUSENKELL & BROWN
1201 N. Orange Street, Suite 300
Wilmington, DE 19801
Counsel for Appellants Gabriel Gray; William Taylor;
DJJams LLC; Firearms Policy Coalition, Inc.; Second
Amendment Foundation, Inc.; Christopher Graham; and
Owen Stevens
Stephen P. Halbrook
3925 Chain Bridge Road, Suite 403
Fairfax, VA 22030
Counsel for Amicus Appellant Delaware Association of
Second Amendment Lawyers II
David B. Kopel
INDEPENDENCE INSTITUTE
727 East 16th Avenue
Denver, CO 80203
Counsel for Amicus Appellants National Association of
Chiefs of Police, International Law Enforcement Educa-
tors & Trainers Association, Law Enforcement Legal
Defense Fund, Randy Barnett, Robert Cottrol, Lee Fran-
cis, Nicholas Johnson, Donald Kilmer, George Mocsary,
Joseph Muha, Joseph Olson, Michael O’Shea, Glenn
Reynolds, and Independence Institute

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Anna M. Barvir
Carl D. Michel
MICHEL & ASSOCIATES
180 E. Ocean Boulevard, Suite 200
Long Beach, CA 90802
Counsel for Amicus Appellants Gun Owners of America,
Inc.; Second Amendment Law Center; California Rifle &
Pistol Association, Inc.; Gun Owners of California, Inc.;
Second Amendment Defense & Education Coalition; Guns
Save Life; Federal Firearms Licensees of Illinois; and
Gun Owners Foundation
Peter M. Torstensen, Jr.
MONTANA ATTORNEY GENERAL’S OFFICE
SOLICITOR GENERAL’S OFFICE
215 N. Sanders Street, P.O. Box 201401
Helena, MT 59620
Counsel for Amicus Appellants Montana, Alabama, Geor-
gia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Missis-
sippi, Missouri, Nebraska, New Hampshire, North
Dakota, South Carolina, South Dakota, Utah, Virginia,
West Virginia, and Wyoming
Garrett B. Moritz
David E. Ross [ARGUED]
ROSS ARONSTAM & MORITZ
1313 N. Market Street, Suite 1001
Wilmington, DE 19801
Kenneth L. Wan
DELAWARE ATTORNEY GENERAL’S OFFICE

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DELAWARE DEPARTMENT OF JUSTICE
Carvel Office Building
820 N. French Street, 6th Floor
Wilmington, DE 19801
Counsel for Appellees Delaware Department of Safety &
Homeland Security; Cabinet Secretary, Delaware Depart-
ment of Safety & Homeland Security; Superintendent,
Delaware State Police; and Attorney General of Delaware
Jeremy Feigenbaum [ARGUED]
Angela Cai
NEW JERSEY ATTORNEY GENERAL’S OFFICE
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, NJ 08625
Counsel for Amicus Appellees New Jersey, Massachusetts,
California, Colorado, Connecticut, District of Columbia,
Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota,
New York, Oregon, Pennsylvania, Rhode Island, Vermont,
and Washington
Janet Carter
EVERYTOWN LAW
450 Lexington Avenue, P.O. Box 4184
New York, NY 10163
Counsel for Amicus Appellee Everytown for Gun Safety
Scott A. Eisman
FRESHFIELDS BRUCKHAUS & DERINGER U.S.
3 World Trade Center

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175 Greenwich Street, 51st Floor
New York, NY 10007
Counsel for Amicus Appellees Giffords Law Center to
Prevent Gun Violence, Brady Center to Prevent Gun Vio-
lence, and March for our Lives
_______________
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 equi-
ties, the public interest, and the threat of irreparable harm. Yet
the challengers here urge us to leapfrog these careful consider-
ations 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 equita-
ble 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 pre-
liminarily 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.

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I. APPELLANTS CHALLENGE TWO
DELAWARE GUN 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 large-magazine 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).
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 injunc-
tion. 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 Dela-
ware had tried to enforce these laws or take away their maga-
zines. All they submitted were declarations from three Dela-
ware 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.

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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 his-
torical 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 effec-
tive 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.
After denying the preliminary injunction, the District Court
started preparing for a November 2023 trial. Instead of pro-
ceeding 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

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and public interest track the merits. But that is not how equity
works. Preliminary injunctions are not automatic. Rather, tra-
dition and precedent have long reserved them for extraordinary
situations. We see nothing extraordinary here.
II. PRELIMINARY INJUNCTIONS ARE
EXTRAORDINARY REMEDIES
A. 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 ratifying the Consti-
tution, 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 Black-
stone’s Commentaries, Hamilton insisted “that the principles
by which that relief is governed are now reduced to a regular

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system.” Id. at 505 n.*. By the Founding, that system had sta-
bilized 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 later described this equitable
jurisdiction as constrained by the “body of doctrine” that Chan-
cery applied to “suits in equity” at the Founding. Atlas Life Ins.
Co. v. W.I.S., Inc., 306 U.S. 563, 568 (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 Lock Po, 336 U.S. 368, 382 n.26 (1949); see also
Petrella v. MGM, Inc., 572 U.S. 663, 678 (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 (2018) (Thomas, J.,
concurring).
B. For good reason, injunctions were and still are
extraordinary relief
Injunctions fall within this equitable framework. The Eng-
lish Court of Chancery enjoined parties sparingly. When a
plaintiff’s claim did not fit within one of the narrow common-
law writs, he could petition the King for relief through his
chancellor. See Douglas Laycock, The Death of the

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Irreparable Injury Rule 19–20 (1991). Over time, the chancel-
lor’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.
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 cau-
tion” 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 Introduc-
tion to Equity Jurisprudence, on the Basis of Story’s Commen-
taries 150 (1846) (emphasis added).
The Supreme Court largely agreed with Holcombe’s nar-
row view. As it explained, “issuing an injunction” requires
“great[ ] caution, deliberation, and sound discretion.” Truly v.
Wanzer, 46 U.S. (5 How.) 141, 142 (1847) (quoting Bonaparte
v. Camden & A.R. Co., 3 F. Cas. 821, 827 (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

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the basis of very limited evidence.” O Centro Espirita Benefi-
ciente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1015 (10th
Cir. 2004) (en banc) (McConnell, J., concurring). Time pres-
sures limit adversarial testing. 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, 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 solidi-
fies into a preliminary ruling. Even if judges keep an open
mind, the parties and the public may see their tentative fore-
casts as the writing on the wall.
For all these reasons, a preliminary injunction “is an extra-
ordinary remedy[ ] [that] should be granted only in limited cir-
cumstances.” 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
A. 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 what-
ever steps are necessary to prevent irreparable harm, but pri-
marily 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 pre-
liminary injunction was to preserve the status quo during the
pendency of litigation.” Id. (collecting mid-nineteenth-
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 (2024) (quoting Univ. of Tex. v. Camenisch, 451
U.S. 390, 395 (1981)); see also Ortho Pharm. Corp. v. Amgen,
Inc., 882 F.2d 806, 813–14 (3d Cir. 1989); Warner Bros. Pic-
tures 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.
Our sister circuits concur. Preliminary injunctions exist
“ultimately to preserve the court’s ability to render a meaning-
ful judgment on the merits.” In re Microsoft Corp. Antitrust
Litig., 333 F.3d 517, 525 (4th Cir. 2003), abrogated on other

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grounds by eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388
(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 effective-
ness 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 pre-
liminary 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, 321 U.S. 414, 440 (1944).
“Only when the threatened harm would impair the court’s abil-
ity to grant an effective remedy is there really a need for pre-
liminary 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

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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
(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. All too often, “the preliminary injunction [becomes]
the whole ball game.” Winter v. NRDC, 555 U.S. 7, 33 (2008)
(internal quotation marks omitted). That shortcut exceeds injunc-
tions’ 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 (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 risks. Courts may
withhold this extraordinary remedy if a plaintiff’s alleged injury
does not threaten to moot the case. That approach is often, per-
haps usually, the wiser course.
IV. THE DISTRICT COURT PROPERLY DENIED
THE 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

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critical.” Nken v. Holder, 556 U.S. 418, 434 (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 (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.
A. 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 discretion by
denying a preliminary injunction. After all, they reason, con-
stitutional rights are priceless, and the government has no inter-
est 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 rem-
edy 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.

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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 (1982). Judges are not robots, espe-
cially in equity.
Third, “[c]rafting a preliminary injunction … often depend[s]
as much on the equities of a given case as the 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 injunc-
tion 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 irrepa-
rable 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.

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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.
Given the background of the rules of equity, we should not
treat the four-factor test as a mechanical algorithm. Law some-
times uses such strict formulae, but equity sees tests as guide-
posts 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 fac-
tors 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 irrep-
arable. We see no evidence that it is. Plus, failing to grant interim
relief would not moot this case.

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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 supple-
ments remedies at law only when needed. When 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 set-
tings. 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

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21
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 (3d Cir. 1997).
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 irrepara-
ble harm there came because the plaintiffs had “alleged that
First Amendment rights have been chilled as a result of gov-
ernment 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. Dio-
cese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (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 (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 (1963).
First Amendment activity, like weekly worship and political
speech, can be especially time-sensitive. See Roman Cath. Dio-
cese, 592 U.S. at 19; Elrod v. Burns, 427 U.S. 347, 374 n.29
(1976) (plurality opinion). We thus presume that prior restraints

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22
are unconstitutional because we fear “communication will be
suppressed … before an adequate determination that it is unpro-
tected by the First Amendment.” Pittsburgh Press Co. v. Pitts-
burgh Comm’n on Hum. Rels., 413 U.S. 376, 390 (1973). As a
rule, 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 central-
ity. See Holt v. Hobbs, 574 U.S. 352, 361–62 (2015); Thomas
v. Rev. Bd. of the Ind. Emp. Sec. Div., 450 U.S. 707, 716
(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 (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.
C. 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

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23
F.3d at 179. To satisfy that 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 chang-
ing. Thus, the challengers have not shown that a preliminary
“injunction is required to preserve the status quo” while litiga-
tion 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 compa-
nies hav[ing] to alter their editorial policies and posting prac-
tices 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 (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 judg-
ment. That finding alone suffices to support 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

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24
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 pre-
liminary 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 & Sam-
uel 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.
D. 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 cau-
tion because this injunction threatens federalism and the sepa-
ration of powers—“[t]wo clear restraints on the use of the equity
power.” Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas,
J., concurring).
The challengers seek to enjoin enforcement of two demo-
cratically enacted state laws. Courts rightly hesitate 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 (1952) (Jackson, J., concurring). “There is always a public
interest in prompt execution” of the laws. Nken, 556 U.S. at 436.

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25
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 (1971). A federal court must weigh how
best to deal with state laboratories of democracy. On a com-
plete 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. Dela-
ware’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 peo-
ple, it suffers a form of irreparable injury.” Maryland v. King,
567 U.S. 1301, 1303 (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 dil-
igent, 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 in seeking enforcement of those rights,
however, tends to indicate at least a reduced need for such dras-
tic, 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 injunc-
tion as well.

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26
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 con-
vert a preliminary-injunction motion into a summary-judgment
motion if they first give the parties enough notice. See Air Line
Pilots Ass’n, 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).” Mor-
ton 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 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 pro-
tect 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

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27
Court did so here, we affirm its order denying a preliminary
injunction. We express no view of the merits.

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1
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.
Moreover, because I also believe that none of the assault
weapons and LCMs at issue are “Arms” protected by the
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
(2009)).
4 Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at 603
n.17.
5 Maj. Op. 26-27.

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2
Second Amendment, I would hold that plaintiffs’ challenge to
Delaware’s laws fails at Bruen’s first step, not its second.6
I. 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 and cabined by history and
Supreme Court precedent discussing the same.11
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 (2008) (cleaned up).
10 Id. at 577.
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

-- 29 of 54 --

3
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
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—
weapons that are protected under the Second Amendment
while “arms” refers to weapons generally.
12 Id. at 576.
13 554 U.S. 570 (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 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.

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4
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
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
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 (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)).
21 Heller, 554 U.S. at 581.
22 U.S. v. Miller, 307 U.S. 174 (1939); Heller, 554 U.S. 570.
23 Miller, 307 U.S. at 179.
24 Id. at 178-79.

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5
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 self-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)
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, 614 P.2d
94, 98 (Or. 1980)).
27 Id. at 626.
28 Id. at 623 (discussing Miller, 307 U.S. 174).
29 Id. at 582, 627.

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6
weapons that are “not typically possessed by law-abiding
citizens for lawful purposes,” such as short-barreled
shotguns;30 and (2) weapons that are “most useful 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
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).
31 Heller, 554 U.S. at 627.

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7
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.
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
32 Id. at 627-28.
33 McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).
34 Id. at 750.

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8
“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 Rifle & 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 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
35 Id. at 767-68 (quoting Heller, 554 U.S. at 599, 630).
36 597 U.S. 1, 31 (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 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 (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.

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9
“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
A. 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 “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
39 Id. at 29.
40 See Del. Code Ann. tit. 11, §§ 1464-69; id. § 1465(4) (assault
weapons); id. § 1468(2) (LCMs).
41 Id. § 1465(2) (assault long guns); Id. § 1465(3) (assault
pistols); Id. § 1465(6) (copycat weapons).
42 Id. § 1468(2).

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10
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 not protect “dangerous and unusual
weapons,” meaning those weapons that are “not typically
possessed by law-abiding citizens for lawful purposes”46 or are
“most useful” as weapons of war.47
i. “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.
43 597 U.S. at 24.
44 Heller, 554 U.S. at 582.
45 Bruen, 597 U.S. at 47 (internal quotations omitted).
46 Id. at 625.
47 Heller, 554 U.S. at 627.

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11
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
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”
48 Heller, 554 U.S. at 576.
49 Id. at 584.
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 (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.

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12
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.
“When” 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
53 Id.
54 See Bruen, 597 U.S. at 32.
55 Id. at 29 (quoting McDonald, 561 U.S. at 767).
56 Id. (internal quotations omitted).

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13
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 self-defense and whether it is commonly used in
self-defense.
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.
57 See Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at
595.
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 (2016) (“Dictionaries consistently define the
noun ‘use’ to mean ‘the act of employing’ something.”).

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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 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
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
“the circumstances, viewed objectively, justify [the
challenged] action.” Ashcroft v. al-Kidd, 563 U.S. 731, 736
(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 (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 (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
proper-cause requirement was unconstitutional “in that it
prevents law-abiding 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).

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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 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 semi-
automatic 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
64 Pub. L. No. 103-322 § 110102, 108 Stat. 1796.
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.”).

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16
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 “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
70 Heller, 554 U.S. at 627.
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
(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

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17
While the District Court concluded that the assault
weapons and LCMs at issue are typically possessed by law-
abiding 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
“substantially outweighed by the danger that it can be used to
kill and injure human beings.” Del. Code Ann. tit. 11, § 1464.
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).

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18
Amendment.78 Generally speaking, assault long guns derive
from weapons of war and retain nearly 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
78 Del. Code Ann. tit. 11, § 1465(2).
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
semi-automatic 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 (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

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19
military contexts, they make assault long guns ill-suited for
self-defense.81 Unlike 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
removal of fully automatic capability . . . All of the other
features on these rifles that enhanced their capability as combat
military firearms remained.”).
81 These features also make assault weapons “a counterintuitive
choice” for other lawful purposes like hunting and target
shooting. SA 474-75 ¶ 88.
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.

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20
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—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
84 Delaware State Sportsmen’s Ass’n, 664 F. Supp. 3d at 600.
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 106).
89 Id. (quoting ANJRPC, 910 F.3d at 106).

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21
today.”90 As a result, the District Court held that the LCMs
Delaware seeks to regulate are “Arms” presumptively
protected by the 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,
pest-control, and occasionally self-defense”—does not suffice
90 Id. at 596-97.
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.

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22
here. 95 Not all guns are “Arms” protected under the Second
Amendment, nor are all magazines.
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 self-defense, or
95 ANJRPC, 910 F.3d at 116 (emphasis added).
96 SA 454-55 ¶ 55.
97 SA 96 (advertisement for 60-cartridge magazine) (cleaned
up).
98 SA 331 ¶ 9.
99 Id.

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23
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 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
100 Delaware State Br. 12 (citing Caetano, 577 U.S. at 416-17
(Alito, J., concurring), Heller v. D.C. (“Heller II”), 670 F.3d
1244, 1269 (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).

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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 failed to demonstrate a
likelihood of success on the merits of their Second Amendment
claim, and the District Court correctly denied injunctive relief.
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.

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25
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
occurred between 1900 and 1965.107 By contrast, the United
105 See Winter v. NRDC, 555 U.S. 7, 26, 32 (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.
107 See Bonnie Berkowitz & Chris Alcantara, 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

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26
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
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
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.

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27
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.

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