Andrew Hanson v. District of Columbia and Pamela A. Smith

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2024 Decided October 29, 2024
No. 23-7061
ANDREW HANSON, ET AL.,
APPELLANTS
v.
DISTRICT OF C OLUMBIA AND P AMELA A. S MITH ,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-02256)
Edward M. Wenger argued the cause for appellants. With
him on the briefs were George L. Lyon, Jr. and Mateo Forero-
Norena.
Ashwin P. Phatak, Principal Deputy Solicitor General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees. With him on the brief were
Brian L. Schwalb, Attorney General, Caroline S. Van Zile,
Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General,
and Sonya L. Lebsack, Assistant Attorney General.

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Mary B. McCord was on the brief for amicus curiae United
States Conference of Mayors in support of appellees.
Matthew J. Platkin, Attorney General, Office of the
Attorney General for the State of New Jersey, Jeremy M.
Feigenbaum, Solicitor General, Andrea Joy Campbell,
Attorney General, Office of the Attorney General for the
Commonwealth of Massachusetts, Robert Toone, Chief,
Government Bureau, Rob Bonta, Attorney General, Office of
the Attorney General for the State of California, Philip J.
Weiser, Attorney General, Office of the Attorney General for
the State of Colorado, William Tong, Attorney General, Office
of the Attorney General for the State of Connecticut, Kathleen
Jennings, Attorney General, Office of the Attorney General for
the State of Delaware, Anne E. Lopez, Attorney General, Office
of the Attorney General for the State of Hawai‘i, Kwame Raoul,
Attorney General, Office of the Attorney General for the State
of Illinois, Aaron M. Frey, Attorney General, Office of the
Attorney General for the State of Maine, Anthony G. Brown,
Attorney General, Office of the Attorney General for the State
of Maryland, Dana Nessel, Attorney General, Office of the
Attorney General for the State of Michigan, Keith Ellison,
Attorney General, Office of the Attorney General for the State
of Minnesota, Aaron D. Ford, Attorney General, Office of the
Attorney General for the State of Nevada, Letitia James,
Attorney General, Office of the Attorney General for the State
of New York, Ellen F. Rosenblum, Attorney General, Office of
the Attorney General for the State of Oregon, Michelle A.
Henry, Attorney General, Office of the Attorney General for
the Commonwealth of Pennsylvania, Peter F. Neronha,
Attorney General, Office of the Attorney General for the State
of Rhode Island, Charity R. Clark, Attorney General, Office of
the Attorney General for the State of Vermont, and Robert W.
Ferguson, Attorney General, Office of the Attorney General
for the State of Washington, were on the brief for amici curiae

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Massachusetts, et al. in support of appellees. Turner H. Smith,
Assistant Attorney General, Office of the Attorney General for
the Commonwealth of Massachusetts, entered an appearance.
Priyanka Gupta Sen was on the brief for amicus curiae
Everytown for Gun Safety in support of appellees.
Douglas N. Letter, Timothy C. Hester, and Ciara Wren
Malone were on the brief for amici curiae Brady Center to
Prevent Gun Violence, et al. in support of appellees.
Before: M ILLETT and WALKER , Circuit Judges, and
GINSBURG , Senior Circuit Judge.
Opinion for the Court filed P ER C URIAM.
Dissenting opinion filed by Circuit Judge WALKER .
I. Factual and Procedural History ....................................... 5
II. Standard of Review ......................................................... 7
III. Likelihood of Success on the Merits ............................... 7
A. Plain Text of the Second Amendment ........................ 8
B. Historical Tradition of Firearm Regulation .............. 12
1. Historical Analogues to the Magazine Cap .......... 14
a. Storage of Gunpowder ...................................... 15
b. Time, Place, and Manner Restrictions .............. 16
c. Prohibition-Era Regulations.............................. 17
d. Restrictions on Weapons Particularly Capable of
Unprecedented Lethality .................................. 18
2. The Nuanced Approach to History Under Bruen . 25
a. Unprecedented Societal Concern ...................... 26
b. Dramatic Technological Change....................... 28
IV. Other Preliminary Injunction Factors ........................... 30

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A. Irreparable Harm ....................................................... 32
B. Balance of the Equities ............................................. 36
V. Summary and Conclusion ............................................. 40
Appendix: Historical Firearms .............................................. 41
P ER C URIAM: After the Supreme Court’s landmark ruling
in District of Columbia v. Heller, 554 U.S. 570 (2008), the
District of Columbia revised its firearms laws to cap the
capacity of firearm magazines at “10 rounds of ammunition.”
D.C. Code § 7-2506.01(b). Over a decade ago, applying the
then-prevailing intermediate scrutiny standard of review, we
held the magazine cap did not violate the right to bear arms
secured by the Second Amendment to the Constitution of the
United States, which 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.” See
Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1264
(D.C. Cir. 2011). Since then, the Supreme Court has rejected
“means-end scrutiny in the Second Amendment context,” in
favor of asking whether a challenged restriction is consistent
with “the Nation’s historical tradition of firearm regulation.”
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 19, 24
(2022).
Seeing a new opening, the Appellants have charged once
more unto the breach. They argue the District’s magazine cap
is unconstitutional under the test set forth in Bruen and moved
the district court for a preliminary injunction to prohibit en-
forcement of the magazine cap. The district court denied the
motion. Because the Appellants have failed to make the “clear
showing” required for a preliminary injunction on this early
and undeveloped record, Winter v. Nat. Res. Def. Council, 555
U.S. 7, 22 (2008), we affirm the denial of their motion.

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I. Factual and Procedural History
After its “prohibition on the possession of usable handguns
in the home” was held to violate the Second Amendment in
Heller, 554 U.S. at 573, 635, the District of Columbia enacted
the Firearms Registration Amendment Act of 2008, D.C. Law
17-372. The Act makes it a felony to possess a magazine
capable of holding more than 10 rounds. Appellants wish to
possess magazines containing up to 17 bullets, which for
efficiency’s sake we will refer to as an extra-large capacity
magazine (ELCM) to distinguish it from a permitted large-
capacity ten-round magazine.1
Each of the appellants, Andrew Hanson, Tyler Yzaguirre,
Nathan Chaney, and Eric Klun, keeps one or more firearm
magazines capable of holding more than ten rounds of ammu-
nition outside the District of Columbia and each alleges he
would use his magazines in the District for lawful purposes,
including self-defense, were the magazine cap imposed by the
Act not in effect. One appellant, Tyler Yzaguirre, attempted to
1 In full, D.C. Code § 7-2506.01(b)-(c), provides:
No person in the District shall possess, sell, or transfer any
large capacity ammunition feeding device regardless of
whether the device is attached to a firearm.
For the purposes of this subsection, the term ‘large capacity
ammunition feeding device’ means a magazine, belt, drum,
feed strip, or similar device that has a capacity of, or that can
be readily restored or converted to accept, more than 10
rounds of ammunition. The term ‘large capacity
ammunition feeding device’ shall not include an attached
tubular device designed to accept, and capable of operating
only with, .22 caliber rimfire ammunition.

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register a firearm with a 12-round magazine in the District, but
the Metropolitan Police Department denied his application be-
cause of the magazine cap.
On August 1, 2022 — a little more than a month after
Bruen had been decided — the four appellants (hereinafter
Hanson) sued the District and the Chief of the D.C.
Metropolitan Police Department, seeking a declaratory judg-
ment that the magazine cap violates the Second Amendment.
Hanson also moved for preliminary and permanent injunctions
preventing the District and the MPD from enforcing the maga-
zine cap. The district court denied Hanson’s motion for a pre-
liminary injunction. Hanson v. District of Columbia, 671 F.
Supp. 3d 1, 3 (D.D.C. 2023).
Because Bruen had “rejected how the Courts of Appeals
interpreted and applied Heller,” the district court undertook a
“renewed analysis under the framework Bruen provides.” Id.
at 5. As applied to Hanson’s suit, the court distilled the Bruen
test into two questions: First, “whether the Second
Amendment covers [ELCM] possession”; and second, if so,
“whether the District’s [magazine cap] is relevantly similar to
an historical analogue” in the regulation of firearms. Id. at 8.
The court then subdivided the first question into two further
questions: “Whether ELCMs are ‘arms’ within the meaning of
the Second Amendment,” and “whether ELCMs are typically
possessed by law-abiding citizens for lawful purposes.” Id. at
8–9 (cleaned up).
The district court held ELCMs are “arms” within the
meaning of the Second Amendment and possession of an
ELCM is not within the scope of the Second Amendment right.
In the alternative, the court held the District’s magazine cap
would be “constitutional for the independent reason that the
District has shown that it is consistent with this country’s his-

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torical tradition of firearm regulation.” Id. at 16. The court
reasoned the District’s justification for the magazine cap —
“mitigating the carnage of mass shootings in this country” —
matched that for Prohibition-era “laws restricting possession of
high-capacity weapons” because both aimed to reduce
violence, and each had a similarly modest burden on the
Second Amendment right to bear arms. Id. at 22 (cleaned up).
Accordingly, the court concluded Hanson had not shown a
likelihood of success on the merits and the district court denied
his motion for a preliminary injunction. Hanson timely
appealed. We now affirm the order of the district court.
II. Standard of Review
A preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.” Winter, 555 U.S. at 22. To get a
preliminary injunction the movant must show: (1) “he is likely
to succeed on the merits,” (2) “he is likely to suffer irreparable
harm in the absence of preliminary relief,” (3) “the balance of
equities tips in his favor,” and (4) issuing “an injunction is in
the public interest.” Id. at 20. We review the district court’s
decision whether “to grant the Plaintiffs’ request for a
preliminary injunction for abuse of discretion, its legal conclu-
sions de novo, and its findings of fact for clear error.” Huisha-
Huisha v. Mayorkas, 27 F.4th 718, 726 (D.C. Cir. 2022).
III. Likelihood of Success on the Merits
To assess the merits of Hanson’s request for a preliminary
injunction,2 we must determine whether the District’s maga-
2 Because the appellants conceded at oral argument that they had not
made the requisite showing for a facial challenge to the District’s

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zine cap allowing ten but not seventeen rounds likely violates
Hanson’s Second Amendment rights. Bruen established a two-
step test for making that determination. First, we consider
whether “the Second Amendment’s plain text covers”
possession of an ELCM. Bruen, 597 U.S. at 17. If it does, then
we must determine whether the magazine cap is “consistent
with this Nation's historical tradition of firearm regulation” and
therefore constitutional. Id. The plaintiff bears the burden of
proof at the first step, whereas the Government bears the
burden of proof at the second step. See id. at 24; see also
Bianchi v. Brown, No. 21-1255, 111 F.4th 438, 445–46 (4th
Cir. 2024).
A. Plain Text of the Second Amendment
Under governing precedent, Bruen step one encompasses
two more precise questions: Do ELCMs “constitute bearable
arms,” Heller, 554 U.S. at 582, and, if so, are ELCMs “in ‘com-
mon use’” for a lawful purpose, such as self-defense?3 Bruen,
magazine cap, see Oral Arg. Tr. at 9–14, we address their challenge
only as-applied and only to the type of weapons equipped with an
ELCM that appellants actually own and want to register in the
District, namely, handgun magazines holding between 12 and 17
rounds. See id. at 11:20–12:22 (counsel for Hanson explaining that
the largest magazine that Hanson “possess[es]” and “want[s] to carry
in the District” holds 17 bullets).
3 “There is no consensus on whether the common-use issue belongs
at Bruen step one or Bruen step two.” Bevis v. City of Naperville,
Ill., 85 F.4th 1175, 1198 (7th Cir. 2023) (assuming common use is
part of step two); see Teter v. Lopez, 76 F.4th 938, 949–50 (9th Cir.
2023) (resolving common use at step two), reh’g en banc granted,
opinion vacated, 93 F.4th 1150 (9th Cir. 2024); United States v.
Rahimi, 61 F.4th 443, 454 (5th Cir. 2023) (resolving common use at

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597 U.S. at 47 (quoting Heller, 554 U.S. at 627). On the current
record, we think the answer to both questions is likely, as
Hanson maintains, to be in the affirmative.
As to the first question, Hanson is likely to succeed in
showing that ELCMs are “Arms” within the meaning of the
Second Amendment. “Constitutional rights . . . implicitly pro-
tect those closely related acts necessary to their exercise.” Luis
v. United States, 578 U.S. 5, 26 (2016) (Thomas, J., concur-
ing). A magazine is necessary to make meaningful an
individual’s right to carry a handgun for self-defense. To hold
otherwise would allow the government to sidestep the Second
Amendment with a regulation prohibiting possession at the
component level, “such as a firing pin.” Kolbe v. Hogan, 813
F.3d 160, 175 (4th Cir. 2016), rev’d en banc, 849 F.3d 114
(2017). We therefore agree with Hanson and the district court
that ELCMs very likely are “Arms” within the meaning of the
plain text of the Second Amendment.
Next, Hanson is likely to succeed in showing that ELCMs
are “in common use” for self-defense, see Heller, 554 U.S. at
627, a deceptively simple question. To start, it demands we
answer the antecedent question: What is the relevant
step one), rev’d, 602 U.S. ---, 144 S. Ct. 1889 (2024). We assume,
without deciding, this issue falls under Bruen step one because the
Bruen Court determined that handguns are in common use before
conducting its historical analysis. See 597 U.S. at 32 (“Nor does any
party dispute that handguns are weapons in common use today for
self-defense. We therefore turn to whether the plain text of the
Second Amendment protects [the petitioners’] proposed course of
conduct — carrying handguns publicly for self-defense.” (cleaned
up)); see also Heller II, 670 F.3d at 1296 n.20 (Kavanaugh, J.,
dissenting) (“In order to apply Heller’s test to this prohibition, we
must know whether magazines with more than 10 rounds have
traditionally been banned and are not in common use”).

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geographic area, the District of Columbia, the District-
Maryland-Virginia Region, or the entire United States? We
think the relevant area is the United States because the source
of the right is the Constitution of the United States. It would
be anomalous for the protection offered by the Second
Amendment to vary from one state or place to another based
upon the local popularity of a particular firearm.
What, then, does “common use” mean? We agree with the
District that the answer is not to be found solely by looking to
the number of a certain weapon in private hands. Accord
Bianchi, 111 F.4th at 460 (“the Court’s choice of the phrase
common use instead of common possession suggests that only
instances of ‘active employment’ of the weapon should
count”). After all, there are more than 700,000 machine guns
registered with the federal government, Bureau of Alcohol,
Tobacco, Firearms, and Explosives, Firearms Commerce in the
United States: Annual Statistical Update 2021, at 16 (2021),
and only “approximately 200,000” stun guns owned by
civilians. Caetano v. Massachusetts, 577 U.S. 411, 420 (2016)
(Alito, J., concurring in the judgment) (cleaned up). Yet
possession of a stun gun is protected by the Second
Amendment, id. at 412, whereas possession of a machine gun
has generally been banned, see 18 U.S.C. § 922(o).
The district court erred, however, in reasoning (as the
District now argues) that ELCMs are outside the scope of the
Second Amendment because they are most useful in military
service. Heller contrasted weapons “in common use at the
time” of the Founding with “dangerous and unusual weapons,”
which are “most useful in military service.” 554 U.S. at 627
(cleaned up). The latter type of weapon “may be banned” not
because of its military use but because of the “historical tradi-
tion of prohibiting the carrying of dangerous and unusual
weapons.” Id.

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The Supreme Court in Heller did not hold, however, that
Second Amendment protection does not extend to weapons that
are “most useful” in the military context. Rather, the Court
acknowledged that the Second Amendment protects those
weapons that are “in common use at the time,” but not “dan-
gerous and unusual weapons.” That means that some “weap-
ons that are most useful in military service” do not receive
Second Amendment protection. Heller, 554 U.S. at 627. The
Court conceded this differential treatment may mean that
“modern developments have limited the degree of fit between
the [Second Amendment’s] prefatory clause and the protected
right,” but was untroubled by that outcome, reasoning that
diminished fit could not “change [its] interpretation of the
right.” Id. at 627–28. In other words, the Court was not saying
“there is no Second Amendment protection for weapons that
are ‘most useful in military service.’” Br. of Appellee 23. It
was explaining that some “sophisticated” and “highly unusual”
military weapons, Heller, 554 U.S. at 627, may not receive
protection notwithstanding the Second Amendment predicate
regarding the necessity of a “well-regulated Militia,” U.S.
Const. amend. II.
The District argues ELCMs are not in common use for
self-defense because they are rarely used to fire more than a
couple rounds in self-defense. Hanson replies that one need
not fire every bullet in an ELCM in order to use it. Because
ELCMs are in sufficiently wide circulation and given the
disputed facts in the record about the role of ELCMs for self-
defense, we will presume for present purposes that ELCMs can
be used for self-defense. Accordingly, because Hanson has
shown it is likely that ELCMs are “arms” and are in common
use for self-defense today, it appears on this record that “the
Second Amendment's plain text covers” and therefore

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presumptively protects the possession of ELCMs. See Bruen,
597 U.S. at 17.
Hanson would have us stop here, as would our dissenting
colleague, arguing that, under Bruen, to find an arm is in
common use renders any restriction of that arm
unconstitutional. As the District points out, however, Bruen
itself precludes this argument. Although no party there
disputed that “handguns are weapons in common use today for
self-defense,” id. at 32 (cleaned up), the bulk of what follows
in the Court’s opinion is an extended analysis of the
Government’s proposed historical analogues, hardly an obiter
dictum, see id. part III, at 31–70.4 We therefore conclude that,
if an arm is “in common use for self-defense,” then it falls to
the Government, at the second step of the Bruen analysis, to
show its restriction on the right to keep and bear arms is
“consistent with this Nation's historical tradition of firearm
regulation.” Bruen, 597 U.S. at 17.
B. Historical Tradition of Firearm Regulation
Is the District’s magazine cap “relevantly similar” to a tra-
dition of regulating firearms? Id. at 29 (quoting C. Sunstein,
On Analogical Reasoning, 106 HARV . L. R EV. 741, 773
(1993)). Although the Supreme Court has not “provided an
4 Indeed, Bruen itself explains that, even where an individual’s
conduct is “presumptively protec[ed]” because the “Second
Amendment’s plain text covers” it, the government can “justify its
regulation by demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” Id. at 24. Our dissenting
colleague says Bruen’s historical analysis is dicta; it is not, but even
if it were, under this court’s practice, “carefully considered language
of the Supreme Court, even if technically dictum, generally must be
treated as authoritative.” See United States v. Dorcely, 454 F.3d 366,
375 (D.C. Cir. 2006).

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exhaustive survey of the features that render regulations
relevantly similar under the Second Amendment, . . . Heller
and McDonald point toward at least two metrics: how and why
the regulations burden a law-abiding citizen's right to armed
self-defense.” Id. (emphases added) (cleaned up). As the
Court has explained,
analogical reasoning under the Second Amendment is
neither a regulatory straightjacket nor a regulatory blank
check. On the one hand, courts should not uphold every
modern law that remotely resembles an historical
analogue, because doing so risks endorsing outliers that
our ancestors would never have accepted. On the other
hand, analogical reasoning requires only that the
government identify a well-established and representative
historical analogue, not a historical twin. So even if a
modern-day regulation is not a dead ringer for historical
precursors, it still may be analogous enough to pass
constitutional muster.
Bruen, 597 U.S. at 30 (cleaned up); see also Rahimi, 144 S. Ct.
at 1903 (emphasizing the error of requiring a “twin” instead of
an “analogue”).
Even with this guidance from Bruen, there is considerable
uncertainty as to the degree of generality at which a court might
properly find a relevantly similar historical analogue. At the
pinnacle of abstraction, an historical analogue could be repre-
sentative of “an unbroken tradition of regulating weapons to
[protect communities].” Bevis, 85 F.4th at 1200. Conversely,
one could read the history to find “no American tradition of
limiting ammunition capacity.” Duncan v. Bonta, 695 F. Supp.
3d 1206, 1214 (S.D. Cal. 2023). We think these levels of
generality and specificity exemplify, respectively, just the
“regulatory blank check” and the “regulatory straightjacket”

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against which Bruen warns. 597 U.S. at 30; see id. (at a high
enough level of generality, “everything is similar in infinite
ways to everything else” (cleaned up)). We think the
appropriate level of generalization is one that aligns the
regulation in question with the “how” and “why” of the
historical analogue. Id.; see also Rahimi, 144 S. Ct. at 1898
(“As we explained in Bruen, the appropriate analysis involves
considering whether the challenged regulation is consistent
with the principles that underpin our regulatory tradition”).
1. Historical Analogues to the Magazine Cap
With this understanding in mind, we turn now to whether,
on this preliminary record, the District has identified a “rele-
vantly similar” historical analogue for its magazine cap.
Bruen, 597 U.S. at 8. To do so, the District must identify an
historical tradition of regulation that burdens the right to armed
self-defense in a manner similar to the burden imposed by the
magazine cap (the “how”) and does so for a similar reason (the
“why”). As explained in greater detail below, we apply the
“nuanced approach” under Bruen to this inquiry.
Here, our inquiry turns upon whether the District can iden-
tify an historical regulation that restricts possession of an arm
based on a justification similar to that for the magazine cap,
namely, to respond to “the growing use of [ELCMs] to facili-
tate crime and, specifically, to perpetrate mass shootings.” Br.
of Appellee 46.
The District and the amici States proffer several candidates
for historical analogues of the magazine cap: laws regulating
the storage of gunpowder and ammunition; time, place, and
manner restrictions on when arms may be carried or firearms
discharged; Prohibition-era regulations of removable maga-
zines and their capacity; and restrictions on dangerous and un-

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usual weapons, including weapons considered particularly dan-
gerous or susceptible to unprecedented lethality.
a. Storage of Gunpowder
The District and the amici States advance various re-
strictions on the storage of gunpowder in the Founding era as a
purportedly relevant historical tradition. A modern detachable
magazine is similar to a colonial or Founding-era cache of
gunpowder only insofar as it acts as a limit on the firepower
available to a single household. Those regulations are not
“relevantly similar” because they were purely fire prevention
measures that affected firearm capacity only incidentally, if at
all.5 The suggestion that they limited the Second Amendment
right to keep and bear arms is silly.
5 “As Massachusetts's 1780 gunpowder statute put it, its goal was to
‘deter[] the Inhabitants thereof from keeping certain Quantities of
Powder in Houses and Ware-Houses, &c. to the great Inconvenience,
Discouragement and Danger of Persons assisting in Time of Fire.’”
Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early
American Origins of Gun Control, 73 FORDHAM L. REV. 487, 512
(2004) (quoting ch. V, 1780 Mass. Acts 326); see also, e.g., Act of
June 26, 1792, ch. X, 1792 Mass. Acts 208 (requiring gunpowder in
excess of the legal limit to be transported “in a waggon [sic] or
carriage, closely covered with leather or canvas, and without iron on
any part thereof, to be first approbated by the Firewards of said
town”); Act of Apr. 13, 1784, ch. 28, 1784 N.Y. Laws 627
(gunpowder in a home must be stored “into four stone jugs or tin
cannisters, which shall not contain more than seven pounds each”);
§ XLII, 1781-1782 Pa. Laws 41 (gunpowder “in any house, shop,
cellar, store or other place within the said borough” must be kept “in
the highest story of the house . . . unless it be at least fifty yards from
any dwelling house”).

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b. Time, Place, and Manner Restrictions
We also agree with Hanson that the various time, place,
and manner restrictions identified by the District and the amici
States fail to identify a “relevantly similar” analogue. They
entail neither a justification nor a burden commensurate with
those of the magazine cap.
Take trap or spring guns: The District argues the tradition
of banning the setting of guns as a trap indicates a tradition of
regulating “unacceptable levels [of] risk of harm to innocent
bystanders.” This analogy is too generalized and “comes too
close to the means/end scrutiny that Bruen rejected.” Bevis, 85
F.4th at 1200. In any event, the burden imposed by trap guns
does not align with the burden imposed by the District’s
magazine cap. “The liability for spring guns and mantraps
arises from the fact that the defendant . . . expected the
trespasser and prepared an injury that is no more justified than
if he had held the gun and fired it.” United Zinc & Chem. Co.
v. Britt, 258 U.S. 268, 275 (1922). In other words, restrictions
on setting trap guns are justified because they target tortious
activity that lies outside the realm of lawful self-defense.
Nor do prohibitions on concealed carry constitute a “rele-
vantly similar” tradition; they lack a justification like the one
animating the District’s magazine cap. A prohibition on carry-
ing a concealed weapon does nothing to limit the lethality of
the weapon.
Laws that prohibit discharging a firearm within a city or
after dark fare no better. See, e.g., Ga. Code § 16-11-103
(2022) (prohibiting the discharge of firearms within 50 yards
of a public highway). Unlike the burden the magazine cap
imposes upon the right to bear arms, modest though it is, we
doubt city and nighttime prohibitions burden the right to armed

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self-defense at all; self-defense surely would be a complete
defense to a charge under those statutes. Indeed, the purpose
of these laws is akin to a prohibition on breach of the peace.
See, e.g., Commonwealth v. Wing, 26 Mass. 1, 3–4 (1829)
(noting “the discharging of guns unnecessarily . . . is an offense
against the public peace and security” (cleaned up)).
Delaware’s colonial-era prohibition on firing guns in urban
areas, for example, had an exception for “days of public
rejoicing.” Robert H. Churchill, Gun Regulation, the Police
Power, and the Right to Keep Arms in Early America: The
Legal Context of the Second Amendment, 25 L AW & HIST. R EV.
139, 163 (2007).
For these reasons, on the abbreviated record before us, we
cannot say the District has carried its burden of demonstrating
that time, place, and manner restrictions on the use of firearms
are “relevantly similar” historical analogues to the District’s
magazine cap.
c. Prohibition-Era Regulations
The district court held the magazine cap was consistent
with an historical tradition of regulating magazine capacity
based upon Prohibition-era bans and regulations. 671 F. Supp.
3d at 21-25. The comparison is somewhat helpful in docu-
menting a history of limiting magazine capacity, at least when
combined with rapid-firing capabilities. The district court
identified bans “adopted by nearly half of all states.” Id. at 21.
Some of those states also limited magazine capacity to even
fewer than 10 rounds — including two that limited capacity to
a single round. See, e.g., 1927 Mass. Acts 413, 413–14. But,
keeping in mind the preliminary nature of this decision, those
regulations alone may not suffice as a relevant analogue. Many
of those laws did not regulate magazine capacity itself; rather,
they addressed the combination of ELCMs and automatic fir-

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18
ing — effectively, and often explicitly, directed at machine
guns.6
This is to be expected, as those laws were enacted largely
in response to the then-novel Thompson submachine gun in-
vented in 1918. The regulation of machine guns through
restrictions on capacity and automatic firing together targets a
combination that renders a weapon significantly more lethal
than a weapon equipped with an ELCM alone.
d. Restrictions on Weapons Particularly
Capable of Unprecedented Lethality
Finally, the District and its amici argue that historical re-
strictions on particularly dangerous weapons and on the related
category of weapons particularly capable of unprecedented
lethality constitute a relevantly similar tradition. Those laws
are commensurate with the District’s justification of its
magazine cap to counter “the growing use of [ELCMs] to
facilitate crime and, specifically, to perpetrate mass shootings.”
Therefore, on the limited record before us, we agree with the
District that it has identified a relevant historical analogue and
Hanson is not likely to succeed on the merits of his claim.
6 See, e.g., 1933 Cal. Stat. 1169 §§ 2–3 (“[E]very person . . . who
within the State of California sells, offers for sale, possesses or
knowingly transports any . . . machine gun . . . is guilty of a public
offense,” defining machine gun as “all firearms known as machine
rifles, machine guns, or submachine guns capable of discharging
automatically and continuously loaded ammunition . . . auto-
matically fed after each discharge from or by means of clips, discs,
drums, belts or other separable mechanical device having a capacity
greater than ten cartridges” (emphases added)); 1932 La. Acts 337-
38 § 1 (defining machine gun in part as being “capable of
automatically discharging more than eight cartridges successively
without reloading”); 1934 S.C. Acts 1288 § 1 (same).

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19
The District advances as an example the history of re-
strictions on Bowie knives or similar blades, and to a lesser ext-
ent pocket pistols. Together with the amici States, the District
recounts that, in response to rising murder rates and an outpour-
ing of public concern, “nearly every state in the Union re-
stricted Bowie (or similar long-bladed) knives in some manner,
whether by outlawing their possession, carry, sale, enhancing
criminal penalties, or taxing their ownership.” Br. of Appellee
38.
Most of those laws merely list Bowie knives by name in
the course of prohibiting the concealed carrying of dangerous
weapons generally, and therefore are not indicative of a “rele-
vantly similar” tradition. See, e.g., Acts of the General
Assembly of Virginia, Passed at the Session of 1838, ch. 101,
at 76 (“It is against the law to habitually or generally keep or
carry about his person any pistol, dirk, bowie knife, or any
other weapon of the like kind . . . hidden or concealed from
common observation”). A handful, however, did ban the
carrying, rather than only the concealment, of Bowie knives
with no or narrow exceptions. See 1881 Ark. Acts 191, An Act
to Preserve the Public Peace and Prevent Crime, ch. xcvi, § 1
(“That any person who shall wear or carry, in any manner
whatever, as a weapon, any dirk or bowie knife, or a sword, or
a spear in a cane, brass or metal knucks, razor, or any pistol of
any kind whatever, except such pistols as are used in the army
or navy of the United States, shall be guilty of a mis-
demeanor”); 1871 Tex. Laws 25 § 1(“[A]ny person carrying
on or about his person, saddle, or in his saddle bags, any . . .
bowie-knife . . . unless he had reasonable grounds for fearing
an unlawful attack on his person, and that such ground of attack
shall be immediate and pressing . . . misdemeanor”); 1889
Ariz. Sess. Laws 16, An Act Defining And Punishing Certain
Offenses Against The Public Peace, §§ 1–2 (“If any person . . .

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20
shall carry on or about his person . . . any bowie knife . . . he
shall . . . forfeit to the County in which his is convicted, the
weapon or weapons so carried,” but providing a limited
exception for self-defense from an “imminent and threatening”
danger).
Contemporaneous court decisions also upheld laws
targeting Bowie knives against challenges based upon the
Second Amendment or a state equivalent. In Aymette v. State,
21 Tenn. 154, 158 (1840), for example, the Supreme Court of
Tennessee concluded:
They need not, for such a purpose, the use of those weap-
ons which are usually employed in private broils, and
which are efficient only in the hands of the robber and the
assassin. These weapons . . . could not be employed ad-
vantageously in the common defence of the citizens. The
right to keep and bear them is not, therefore, secured by
the constitution.
As the Supreme Court of Texas put it in Cockrum v. State, 24
Tex. 394, 402–03 (1859):
The bowie-knife differs from [guns or swords] in its device
and design; it is the instrument of almost certain death. He
who carries such a weapon, for lawful defense, as he may,
makes himself more dangerous to the rights of others, con-
sidering the frailties of human nature, than if he carried a
less dangerous weapon. Now, is the legislature powerless
to protect the rights of others thus the more endangered, by
superinducing caution against yielding to such frailties?
May the state not say, through its law, to the citizen, “this
right which you exercise, is very liable to be dangerous to
the rights of others, you must school your mind to forbear
the abuse of your right, by yielding to sudden passion; to

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21
secure this necessary schooling of your mind, an increased
penalty must be affixed to the abuse of this right, so dan-
gerous to others.
We emphasize that our identification of a relevant histori-
cal tradition is based upon the regulation of weapons that are
particularly capable of unprecedented lethality and not, as the
dissent would have it, upon the regulation of Bowie knives
specifically. Nor is our conclusion based upon statutes the
dissent characterizes as “not only too little [but also] too late.”
Dissent at 46.7
7 The dissent states that “the original meaning that controls [the
District’s magazine cap] is undoubtedly the original meaning [of the
Second Amendment] in 1791,” rather than its meaning in 1868,
taking no position on whether the same is true for state laws. Dissent
at 46 n.203. We see three reasons, however, to believe analogues
after 1791 are still relevant. First, the limitations on the Second
Amendment listed in Heller (involving a D.C. regulation) were based
on examples that occurred throughout the 19th century. See Heller,
554 U.S. at 626–27. Second, the Supreme Court has relied on early
19th-century (and still earlier) history to overturn state laws that
implicate the Second Amendment even though the Second
Amendment had not yet been incorporated through the Due Process
Clause, noting that “individual rights enumerated in the Bill of
Rights and made applicable against the States through the Fourteenth
Amendment have the same scope as against the Federal
Government.” Bruen, 597 U.S. at 38; see also, e.g., Rahimi, 144 S.
Ct. at 1899–902; Bruen, 597 U.S. at 33–59; id. at 38. Third, the
Supreme Court has similarly emphasized that our inquiry is “not
meant to suggest a law trapped in amber” and that “the Second
Amendment permits more than just those regulations identical to the
ones that could be found in 1791.” Rahimi, 144 S. Ct. at 1897–98.
On the limited record before us, we believe that this evidence
demonstrates a relevant historical tradition, as required by Bruen and
Rahimi.

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22
The broader regulation of weapons that are particularly
capable of unprecedented lethality includes other prominent
examples, such as the ban on sawed-off shotguns held constitu-
tional by the Supreme Court in Miller and implicitly approved
in Heller. See 554 U.S. at 627; see also Ocean State Tactical
v. Rhode Island, 95 F.4th 38, 47 (1st Cir. 2024) (The “Congress
began regulating sawed-off shotguns in 1934, after they
became popular with the mass shooters of their day —
notorious Prohibition-era gangsters like Bonnie Parker and
Clyde Barrow.” (quotations omitted)). The examples above
regarding Prohibition-era bans on machine guns, although
insufficient to support a tradition of regulating magazines in
and of themselves, fit nicely into the tradition of regulating
weapons particularly capable of unprecedented lethality, as
then-Attorney General Homer Cummings testified in 1934 dur-
Finally, the dissent states that “the Supreme Court’s subsequent cases
“confirm that ‘the relative dangerousness of a weapon is irrelevant
when the weapon belongs to a class of arms commonly used for
lawful purposes.’” Dissent at 43 (quoting Caetano, 577 U.S. at 418
(Alito, J., concurring) (emphasis added)). This statement of a single
justice is obviously not controlling. We also think there is merit in
the District’s argument that Heller’s reference to “dangerous and
unusual weapons,” 554 U.S. at 627 means “uncommonly dangerous”
weapons. All arms are self-evidently “dangerous”; in this context,
therefore, “dangerous” must mean something other than its standard
definition or the word would do no work delineating the category.
From the canonical example in the case law — the sawed-off
shotguns at issue in United States v. Miller, 307 U.S. 174 (1939) —
we can infer that dangerous in the phrase “dangerous and unusual”
means “uncommonly dangerous.” See Samuel L. Bray, “Necessary
and Proper” and “Cruel and Unusual”: Hendiadys in the Consti-
tution, 102 Va. L. Rev. 687, 695 (2016) (explaining a “hendiadys,”
a figure of speech involving “two terms, separated by a conjunction,
[that] are melded together to form a single complex expression”).

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23
ing hearings regarding the bill that became the National
Firearms Act:
There are more people in the underworld today armed with
deadly weapons, in fact, twice as many, as there are in the
Army and the Navy of the United States combined. In
other words, roughly speaking, there are at least 500,000
of these people who are warring against society and who
are carrying about with them or have available at hand,
weapons of the most deadly character.
National Firearms Act: Hearing(s) on H.R. 9066 Before the
Comm. on Ways and Means, 73rd Cong. 45 (1934) (cleaned
up); accord Andrews v. State, 50 Tenn. 165, 189 (1871) (“The
law allows ample means of self-defense, without the use of the
weapons which we have held may be rightfully proscribed by
this statute. The object being to banish these weapons from the
community by an absolute prohibition for the prevention of
crime, no man's particular safety, if such case could exist, ought
to be allowed to defeat this end.”); State v. Reid, 1 Ala. 612,
617 (1840) (“[A] law which is intended merely to promote per-
sonal security, and to put down lawless aggression and vio-
lence, and to that end inhibits the wearing of certain weapons,
in such a manner as is calculated to exert an unhappy influence
upon the moral feelings of the wearer, by making him less re-
gardful of the personal security of others, does not come in col-
lision with the Constitution.”); see also Staples v. United
States, 511 U.S. 600, 611–12 (1994) (“[W]e might surely
classify certain categories of guns — no doubt including the
machineguns, sawed-off shotguns, and artillery pieces that
Congress has subjected to regulation — as items the ownership
of which would have the same quasi-suspect character we
attributed to owning hand grenades.”); Ocean State Tactical,
95 F.4th at 49 (“[O]ur nation's historical tradition recognizes
the need to protect against the greater dangers posed by some

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24
weapons (as compared to, for example, handguns) as a
sufficient justification for firearm regulation”).
Although these laws may target different crimes than does
the magazine cap, they share the same basic purpose: To in-
hibit then unprecedentedly lethal criminal activity by
restricting or banning weapons that are particularly susceptible
to, and were widely used for, multiple homicides and mass
injuries. Because many of the preceding examples are also
outright bans on an entire class of weapons, they impose a
burden on the right to armed self-defense comparable to (if nor
greater than) the burden imposed by the District’s magazine
cap.8
To summarize, we hold that, at this interlocutory juncture,
the District has met its burden to show its magazine cap is “con-
sistent with the Nation's historical tradition of firearm regula-
tion,” Bruen, 597 U.S. at 24. Again, “the [magazine cap] must
comport with the principles underlying the Second
Amendment, but it need not be a dead ringer or a historical
8 The dissent argues that the District’s law is different from
permissible regulations because it is a “ban.” Dissent at, e.g., 1 n.4,
31, 36-37, 45. But the dissent acknowledges that the only merits
question on this preliminary motion is whether the District erred in
capping magazine capacity at 10 rounds rather than 17. Dissent at
36 n.169. Treating every line-drawing regulation, including in areas
where appellants do not even dispute that a line can constitutionally
be drawn at some point, gilds the lily, rather than undertakes a
nuanced analysis. In any event, we view the dissent’s distinction
between an “outright ban” and a “regulation” of arms to be of
dubious utility. One could, for example, easily reframe the law at
issue in Rahimi — which “prohibit[ed]” individuals shown to be a
credible threat to the physical safety of an intimate partner from
possessing a firearm, Rahimi, 144 S. Ct. at 1894 — as an outright
ban on the possession of firearms by this class of individuals.

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25
twin.” Rahimi, 144 S. Ct. at 1898 (cleaned up). On a more
developed record, evidence disputing the linkage between
ELCMs and mass shootings may render inapposite the tradition
of banning weapons capable of unprecedented lethality. On the
present record, however, we think the District’s magazine cap
sufficiently parallels a relevantly similar historical analogue to
foreclose a finding that appellants are likely to succeed on the
merits.
2. The Nuanced Approach to History Under Bruen
Nevertheless, Hanson claims no historical tradition, in-
cluding this one, can be relevant because weapons capable of
holding or shooting more than ten rounds without reloading
have existed since the Founding (true) and there is no historical
tradition either of prohibiting them or of regulating the number
of rounds a gun could hold (true). Therefore, he argues, the
District’s magazine cap is unconstitutional. We agree there is
no narrowly described tradition of banning weapons capable of
holding or shooting more than ten rounds without reloading or,
more generally, of regulating the number of rounds a gun may
hold. The lack of such a tradition is to be expected, however,
because firearms did not have the capacity to occasion a socie-
tal concern with mass shootings or other widespread homicidal
criminality until dramatic technological changes vastly in-
creased their capacity and the rapidity of firing; there simply is
no relevantly similar historical analogue to a modern, semiau-
tomatic handgun equipped with an ELCM. Accord Friedman
v. City of Highland Park, Ill., 784 F.3d 406, 410 (7th Cir. 2015)
(“Most guns available [in 1791] could not fire more than one
shot without being reloaded; revolvers with rotating cylinders
weren’t widely available until the early 19th century. Semi-
automatic guns and large-capacity magazines are more recent
developments”).

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26
Again, Rahimi makes clear that “the Second Amendment
permits more than just those regulations identical to ones that
could be found in 1791.” 144 S. Ct. at 1897–98; see also id. at
*30 (Barrett, J., concurring) (cautioning against “assum[ing]
that founding-era legislatures maximally exercised their power
to regulate”). Moreover, as Bruen explained, “cases implicat-
ing unprecedented societal concerns or dramatic technological
changes may require a more nuanced approach.” 597 U.S. at
27. Because these criteria are in the disjunctive, the govern-
ment may demonstrate a constitutionally adequate historical
analogue for a regulation or ban of an arm implicating either
criterion. We agree with the District that ELCMs implicate
both.
a. Unprecedented Societal Concern
Large capacity magazines have given rise to an unprece-
dented societal concern: mass shootings. As the First Circuit
has observed, there is “no direct precedent for the contempo-
rary and growing societal concern that [ELCMs] have become
the preferred tool for murderous individuals intent on killing as
many people as possible, as quickly as possible.” Ocean State
Tactical 95 F.4th at 44. This comes as no surprise, because
mass shootings themselves are a relatively recent phenomenon:
“The first known mass shooting resulting in ten or more deaths
did not occur in this country until 1949.” Id. (cleaned up).
Mass shootings have become ever more common since
then.9 A Congressional Research Service report notes the
9 “The definition of mass shooting varies by source.” Office of the
U.S. Surgeon General, The U.S. Surgeon General’s Advisory on
Firearm Violence: A Public Health Crisis in America 11 (2024). The
Surgeon General’s Advisory defines a mass shooting as “four or
more shot or killed, not including the shooter,” which it borrows

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27
steady increase in the frequency of mass shootings, from an
average of 1.1 per year during the 1970s, to an average of 4.5
per year from 2010 through 2013, Krouse & Richardson,
above, at 14, and “more than 600 . . . each year between 2020
and 2023,” according to data published by Gun Violence
Archive and cited in the Surgeon General’s Advisory, above,
at 11. “Despite accounting for a relatively small number of
firearm deaths, mass shooting incidents cause outsized
collective trauma on society and have a strong negative effect
on the public’s perception of safety.” Id. “Mass shootings that
involve a firearm with a large-capacity magazine result in
significantly more injuries and deaths than shootings that do
not involve such magazines.” Id. at 30 (citing Koper, 19 Crim.
& Pub. Pol’y at 152–53). There can be little doubt that mass
shootings are an unprecedented societal concern.
from the Gun Violence Archive. Id. The Congressional Research
Service defines it as “a multiple homicide incident in which four or
more victims are murdered with firearms — not including the
offender(s) — within one event, and in one or more locations
relatively near one another.” William J. Krouse & Daniel J.
Richardson, Congressional Research Service, Mass Murder with
Firearms: Incidents and Victims, 1999–2013, at 2 (2015). Another
study similarly defines mass shootings as “incidents in which at least
four persons were killed, not including the shooter if applicable and
irrespective of the number of additional victims shot but not killed.”
Christopher S. Koper, Assessing the potential to reduce deaths and
injuries from mass shootings through restrictions on assault
weapons and other high-capacity semiautomatic firearms, 19 Crim.
& Pub. Pol’y 147, 150 (2020). The Congress, meanwhile, has
defined “mass killing” to mean “3 or more killings in a single
incident.” 28 U.S.C. § 530C(b)(1)(M)(i)(I).

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28
b. Dramatic Technological Change
A nuanced approach is also appropriate for the analysis of
historical analogues to the District’s magazine cap because
large-capacity, detachable magazines for semiautomatic
handguns are a relatively modern invention. They are different
in form and in kind from arms in common use during the
Founding and Reconstruction eras, the relevant periods for
assessing the original understanding of the Second and the
Fourteenth Amendments, respectively.10
Compared to the historical analogues Hanson offers, mod-
ern firearms equipped with ELCMs do not have the propensity
to jam or misfire that plagued many historical weapons.
ELCMs also have significantly larger capacities and can fire
multiple rounds in a shorter time. Indeed, a handgun with an
ELCM can fire more than 10 rounds in a few seconds. The
Glock 17 handgun, for example, can fire 30 rounds in five sec-
onds. Add to that the ease with which one detachable magazine
can be swapped for another, and a handgun with an ELCM can
fire scores of shots in a matter of seconds.
There were no remotely comparable arms in common use
even when the Fourteenth Amendment was ratified. As a
result, modern firearms equipped with ELCMs have enabled
10 See Bruen, 597 U.S. at 82 (Barrett, J., concurring) (there is an
“ongoing scholarly debate on whether courts should primarily rely
on the prevailing understanding of an individual right when the
Fourteenth Amendment was ratified in 1868 or when the Bill of
Rights was ratified in 1791” (cleaned up)). Because the choice
would not alter our conclusion, we take no position regarding
whether the relevant period for analysis is 1791 or 1868. See, e.g.,
Rahimi, 144 S. Ct. at 1898 n.1 (“under the circumstances, resolving
the dispute [is] unnecessary to decide the case”).

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29
mass shootings to a degree impossible with Founding or
Reconstruction era weapons.
To bolster his argument to the contrary, Hanson offers sev-
eral pre-Fourteenth Amendment examples of weapons capable
of holding or shooting more than ten rounds without reloading,
see Appendix: Historical Firearms, some of which are irrele-
vant and none of which is persuasive. Most of his examples
were never in common use — indeed, some were no more than
one-offs or prototypes — and therefore have no bearing on the
scope of the Second Amendment, which “protects only the
carrying of weapons that are those in common use at the time.”
Bruen, 597 U.S. at 47 (cleaned up). Of the four that are
arguably relevant (the Jennings, Pepperbox, Colt, and
Winchester), there is no evidence any could be fired as rapidly
as a modern handgun. All but the Jennings were also prone to
jamming or to misfiring. As a result, none had nearly the same
potential for mass shootings as does an ELCM.
Contrary to Hanson’s assertions, none of his examples is a
functional analogue to a modern gun with a detachable ELCM.
We do not expect to find an historical tradition of regulating
handguns with detachable magazines before ratification of the
Fourteenth Amendment, much less ratification of the Second
Amendment, because there was then no “relevantly similar”
weapon “in common use,” until the late 19th or early 20 th cen-
tury, when the Mauser C96 semi-automatic pistol entered cir-
culation.11
11 Although the Mauser C96 semi-automatic pistol is relevantly
similar to a modern handgun with an ELCM, it and similar weapons
that postdate the ratification of the Fourteenth Amendment represent
dramatic technological advances over Founding- and
Reconstruction-era firearms.

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30
* * *
Because ELCMs implicate unprecedented societal con-
cerns and dramatic technological changes, the lack of a “pre-
cise match” does not preclude finding at this preliminary junc-
ture an historical tradition “analogous enough to pass constitu-
tional muster.” Therefore, we hold Hanson is not sufficiently
likely to succeed on the merits of his claim to warrant the entry
of a preliminary injunction against enforcement of the maga-
zine cap.
IV. Other Preliminary Injunction Factors
In addition to establishing a likelihood of success on the
merits, a party seeking a preliminary injunction must make a
“clear showing” that “it will likely suffer irreparable harm be-
fore the district court can resolve the merits of the case,” that
“the balance of equities favors preliminary relief,” and that “an
injunction is in the public interest.” Singh v. Berger, 56 F.4th
88, 95 (D.C. Cir. 2022); see also Winter, 555 U.S. 7, 32 (“An
injunction is a matter of equitable discretion; it does not follow
from success on the merits as a matter of course.” (citing
Weinberger v. Romero–Barcelo, 456 U.S. 305, 313 (1982))).
Those factors enforce a vital, structural limitation on the role
of courts. Unlike the Political Branches, courts are
institutionally reactive. Our authority to alter legal rights and
obligations generally derives from — rather than precedes —
our determination of the merits. Said another way, “[t]he
judicial power is inseparably connected with the judicial duty
to decide cases and controversies by determining the parties’
legal rights and obligations,” and a “preliminary injunction is
remarkable because it imposes a constraint on the enjoined
party’s actions in advance of any such determination.” O
Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389
F.3d 973, 1014 (10th Cir. 2004) (McConnell, J., concurring);

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31
see Delaware State Sportsmen’s Ass’n, Inc. v. Delaware Dep’t
of Safety & Homeland Sec., 108 F.4th 194, 199 (3d Cir. 2024)
(“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”) (cleaned up).
On the record before us, Hanson has failed to show that the
preliminary injunction factors warrant the “extraordinary rem-
edy” of a preliminary injunction that would alter a 15-year sta-
tus quo and effectively grant him the same relief he would ob-
tain at the end of trial before that trial even starts.
The dissent analyzes none of the normal preliminary
injunction factors, instead invoking the narrow exception for
when “the merits of the plaintiffs’ challenge are certain and
don’t turn on disputed facts.” Dissent at 53 n.234 (citing
Wrenn v. D.C., 864 F.3d 650, 667 (D.C. Cir. 2017)). But that
exception does not apply here, even if the dissent is right and
we are wrong about the merits. No precedent dictates with
certainty that, in confronting the unprecedented criminal and
lethal misuse ELCMs have allowed, the District erred in
capping magazine capacity at 10 rather than 17. Appellants,
after all, do not argue in this motion that the Second
Amendment prohibits any cap on magazine capacity for
semiautomatic weapons. Nor does the dissent.
Instead, we assess all the preliminary injunction factors to
determine whether we should act despite our uncertainty on an
undeveloped record and amid factual disputes, rather than
deciding before trial simply because we believe we must be
right. After all, a preliminary injunction “is not a shortcut to
the merits.” Delaware State Sportsmen’s Assn, 108 F.4th at
197.

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32
A. Irreparable Harm
To begin, we note that irreparable harm, even when
demonstrated, may be insufficient on its own to warrant a
preliminary injunction. “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). The purpose of a preliminary injunction
is not to prevent all harm but “merely to preserve the relative
positions of the parties until a trial on the merits can be held.”
Starbucks Corp. v. McKinney, 602 U.S. ---, 144 S. Ct. 1570,
1576, (2024).
Nor does the alleged deprivation of a constitutional right
constitute irreparable harm. Even in the sensitive areas of
freedom of speech and religion, where the risk of chilling
protected conduct is especially high, we do not “axiomatically”
find that a plaintiff will suffer irreparable harm simply because
it alleges a violation of its rights. Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 302 (D.C. Cir. 2006).
Rather, a plaintiff must show why the court will be unable to
grant meaningful relief following trial. Thus, far from treating
the Second Amendment as a “second-class right,” McDonald
v. City of Chicago, Ill., 561 U.S. 742, 780 (2010), we assess
Hanson’s claim of irreparable harm using the same standard we
apply to all fundamental rights.
Hanson has not come forward with a factual record
showing that he will be irreparably harmed if he is required to
wait until the court hears his case before obtaining larger-
capacity magazines for his firearms. “Irreparable harm,” in this
context, refers to harm within a specific timeframe. That is,
Hanson must demonstrate injury that is sufficiently certain,
persuasively demonstrated, and so clearly irremediable that it

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33
warrants a court reaching out to alter the status quo before the
merits are resolved. See O Centro Espirita, 389 F.3d at 1013
(“[T]here are cases in which preservation of the status quo may
so clearly inflict irreparable harm on the movant, with so little
probability of being upheld on the merits, that a preliminary
injunction may be appropriate even though it requires a
departure from the status quo”).
Hanson rests his entire irreparable harm showing on the
argument that the District’s magazine cap burdens his Second
Amendment right to use magazines of between 11 and 17
rounds for self-defense. See Oral Arg. Tr. 11:20–12:22 (coun-
sel for Hanson explaining that the largest magazine that Han-
son “possess[es]” and “want[s] to carry in the District” holds
17 bullets); Oral Arg. Tr. 14:17–25 (similar); see also id. at
9:20–13:13 (counsel for Hanson acknowledging that the re-
quested preliminary injunction is limited to Hanson’s as-ap-
plied challenge); id. at 77:20–23 (“[T]he imposition, the actual
threat to the right here is the ability for my clients to bear an
arm that they’ve decided is necessary for their self-defense pur-
poses.”); id. at 20:9–21:3 (counsel for Hanson acknowledging
that self-defense is the operative Second Amendment interest
for their preliminary-injunction request). But Hanson does not
offer any factual showing of irreparable harm to his self-de-
fense interest.
First, Hanson has not provided any specific explanation of
the irreparable harm he faces from having the ability to fire 11,
but not 18, rounds without pausing during the pendency of this
litigation. 12 In fact, each of the appellants owns at least one
12 The District’s magazine cap permits Hanson to fire 11 rounds
without pausing — 10 rounds in the magazine, plus one round in the
chamber. Hanson seeks to use 17-round magazines that would
enable him to fire 18 rounds without pausing — 17 rounds in the
magazine, plus one round in the chamber.

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34
handgun for which the standard-issue magazine contains 10 or
fewer rounds. See J.A. 181–185. And the standard-issue mag-
azine for six of the 13 firearms at issue in this as-applied chal-
lenge likewise contains no more than 10 rounds. See J.A. 181–
185. Hanson, having limited his injunctive request to his as-
applied challenge, does not allege that he faces difficulty ob-
taining such standard-issue magazines, and he does not identify
any irreparable harm to his self-defense that will arise if he is
limited to using the magazines that he already owns while the
merits of his constitutional challenge to the District’s magazine
cap are resolved.
Hanson protests that he faces irreparable harm from the
District’s magazine cap because it prevents him from “be[ing]
prepared for th[e] unthinkable circumstance where [he] might
need to use more than [10] rounds.” Oral Arg. Tr. 75:22–23;
see id. at 75:22–76:6; see also id. at 72:23–78:1. But Hanson
concedes that such circumstances are, at most, “rare” and “un-
usual.” Id. at. 74:25, 75:6; see id. at 76:17–24. The Supreme
Court has held that “simply showing some possibility of irrep-
arable injury” is not sufficient to make the irreparable harm
showing needed to obtain preliminary relief. Nken v. Holder,
556 U.S. 418, 434 (2009) (emphasis added; quotations
omitted). Yet in Hanson’s own words, he has raised only re-
mote conjecture. See Oral Arg. Tr. 75:22–23, 74:25, 75:6.
Highlighting that point, Hanson himself has explained
that, “[i]n most self-defense circumstances, pulling out a
weapon and brandishing it will scare off somebody else.” Oral
Arg. Tr. 75:9–10. In addition, Hanson’s own evidence in sup-
port of a preliminary injunction shows that “the average
amount of rounds fired in self-defense is usually less than 10”
and “generally only two or three.” J.A. 721 (Decl. of John
Murphy); see id. at 1039–1040 (district court noting that a prior
study conducted by one of Hanson’s experts “concluded that

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35
the average number of shots a civilian fired in a self-defense
incident [between 1997 and 2001] was 2.2”). Hanson, in short,
has not shown that there will be any “time-sensitive” actual
effect on his ability to engage in self-defense while this
litigation proceeds. See Del. State Sportsmen’s Ass’n., 108
F.4th at 205 (declining preliminarily to enjoin a similar
magazine-size cap when there was “scant evidence” of any
“time-sensitive need” for larger magazines than the law
allowed).
Second, Hanson himself does not argue that any restriction
on magazine capacity would inflict irreparable harm on his
Second Amendment rights. He, in fact, agrees with the District
that the Second Amendment does not protect magazines of all
sizes, and he concedes that there is a magazine capacity that the
District can constitutionally limit. See Oral Arg. Tr. 7:23–
10:24 (counsel for Hanson conceding that the District could
ban magazines not in common use for self-defense). He simply
disagrees with where the District has drawn that line. But that
type of close line-drawing regarding how many bullets to per-
mit in a magazine while litigation is pending does not, without
something more concrete than fear of the “unthinkable,” be-
speak irreparable harm. Cf. Ayotte v. Planned Parenthood of
N. New England, 546 U.S. 320, 330 (2006) (“Making distinc-
tions . . . where line-drawing is inherently complex, may call
for a far more serious invasion of the legislative domain than
we ought to undertake.”) (cleaned up).
Third, Hanson has evidenced no urgency in obtaining relief
in this litigation. He consented to a stay of district court pro-
ceedings pending resolution of this appeal while at the same
time failing to seek expedited review from this court. “[A]
party requesting a preliminary injunction must generally show
reasonable diligence.” Benisek v. Lamone, 585 U.S. 155, 159
(2018). Although consenting to a stay or declining to seek

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36
expedited review on appeal will not always establish lack of
diligence on the part of the party seeking injunctive relief, such
action, when unexplained, undercuts claims of irreparable
harm. Hanson’s unhurried litigation tactics counsel against a
finding of irreparable harm here.
B. Balance of the Equities
Finally, the balance of equities also weighs against granting
a preliminary injunction at this time. A party seeking a prelim-
inary injunction must show that “the balance of equities favors
preliminary relief” and that “an injunction is in the public in-
terest.” Singh, 56 F.4th at 95. In analyzing this record, we
must carefully balance the equities by weighing the harm to the
moving party and the public if there is no injunction against the
harm to the government and the public if there is. See League
of Women Voters of the U.S. v. Newby, 838 F.3d 1, 12–14 (D.C.
Cir. 2016).
On the District’s side of the balance is the governmental
interest in enforcing its duly enacted law, and the likelihood of
“concrete harm to [the District’s] law enforcement and public
safety interests” were we to grant a preliminary injunction.
Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J.,
in chambers). The District has demonstrated that it will likely
suffer irreparable harm if an injunction issues. Even at this pre-
liminary stage, the record contains evidence that the District
would experience an influx of ELCMs if this court were to pre-
liminarily enjoin the District’s magazine cap. See J.A. 119.
The District notes that over one million ELCMs “flooded into
California in the brief [one-week] period after [California’s
ELCM cap] was enjoined but before the ruling was stayed by
the district court.” District Br. 51 (citing Matthew Green, Gun
Groups: More Than a Million High-Capacity Magazines
Flooded California During Weeklong Ban Suspension, KQED

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37
(Apr. 12, 2019), https://perma.cc/65NQ-Z6D6). Hanson has
not offered any evidence that rebuts this claim or that shows
the District would not face similar harm were an injunction to
issue here.
The District’s harm, moreover, encompasses not only the
likely proliferation of ELCMs, but also the uses to which those
magazines can be put. The District submitted expert testimony
that ELCMs are “extraordinarily lethal” when used in combi-
nation with semiautomatic firearms, increasing the number of
individuals killed in mass shootings and other criminal activity.
J.A. 477; see id. (“Without extended magazines, semiautomatic
rifles cause an average of 40 percent more deaths and injuries
in mass shootings than regular firearms, and semiautomatic
handguns [cause] 11 percent more than regular firearms. But
with extended magazines, semiautomatic rifles cause an aver-
age of 299 percent more deaths and injuries than regular fire-
arms, and semiautomatic handguns [cause] 184 percent more
than regular firearms.”). The District has a particular and
unique interest in reducing that lethality “given homeland se-
curity issues in the District” as the seat of the federal govern-
ment and the location of countless sensitive governmental in-
stitutions and protected personnel. Br. of Appellee 4 (quoting
Committee on Pub. Safety and the Judiciary, D.C. Council,
Report on Bill 17-843, at 9 (2008)).
Hanson, for his part, asserts the public’s interest in exer-
cising the Second Amendment right to bear constitutionally
protected arms. Cf. Singh, 56 F.4th at 107 (“On the Plaintiffs’
side of the balance is the weighty public interest in the free ex-
ercise of religion that RFRA protects”).
Yet the mere fact that Hanson seeks to enjoin the District’s
magazine cap on constitutional grounds does not decide our
balance-of-the-equities inquiry. To the contrary, this court

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38
must balance the equities of the parties and the public even
when a party seeks to restrain the enforcement of an allegedly
unconstitutional law. See Singh, 56 F.4th at 107–109;
Archdiocese of Wash. v. Washington Metro. Area Transit
Auth., 897 F.3d 314, 334–335 (D.C. Cir. 2018). Furthermore,
we have stated that the public interest in such cases “rises and
falls with the strength of [the moving party’s] showing” on the
merits. Archdiocese of Wash., 897 F.3d at 335. While “[t]he
public interest favors the protection of constitutional rights,”
Hanson would need to establish a likely violation of his consti-
tutional rights to establish that the public interest outweighs the
District’s unrebutted showing of substantial harm, a showing
he has not made. Id. (explaining the parties’ relative equities
might balance differently if the plaintiffs had established a
likelihood of success on the merits of their constitutional claim
and, in turn, that the public interest favored an injunction).
In addition, Hanson is seeking at this preliminary stage a
longstanding-status-quo-altering injunction that effectively
gives him the full relief he would receive if he won on the mer-
its. Preliminary injunctions, though, “are generally a ‘stopgap
measure’ meant only to ‘preserve the relative positions of the
parties’ until trial.” Singh, 56 F.4th at 95 (quoting Sherley v.
Sebelius, 689 F.3d 776, 781–782 (D.C. Cir. 2012)). “After all,
‘deciding whether to grant a preliminary injunction is normally
to make a choice under conditions of grave uncertainty.’” Id.
(quoting O Centro Espirita, 389 F.3d at 1015). Because “a
grant of preliminary relief could prove to be mistaken once the
merits are finally decided,” courts must be “institutionally wary
of granting relief that disrupts, rather than preserves, the status
quo, especially when that relief cannot be undone if the non-
movant ultimately wins on the merits.” Id. (quotations
omitted). At bottom, that “reluctance to disturb the status quo
prior to trial on the merits is an expression of judicial humility.”
O Centro Espirita, 389 F.3d at 1015.

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39
Concern about so materially altering the status quo has
particular purchase on the record of this case. For 15 years,
District law enforcement has operated and been resourced with
the magazine cap in place. The District has also shown that an
erroneously issued preliminary injunction suspending its law
could drastically compromise the District’s ability to enforce
its magazine cap far into the future — long beyond the term of
the preliminary injunction itself — because of the likelihood
that ELCMs will flood into the District during any such injunc-
tive relief. Hanson, in contrast, would suffer from an erroneous
preliminary analysis of his claim for a far shorter time while
the merits of this case are resolved. Those unequal conse-
quences carry material weight in the equitable preliminary-in-
junction calculus. Cf. Singh, 56 F.4th at 97 (“The public con-
sequences of employing the extraordinary remedy of injunction
necessarily include the risk that the relief requested will cause
unusual disruption if granted in error, for example by disturb-
ing the status quo in a way that cannot readily be undone.”)
(cleaned up).
Finally, we cannot simply rebalance the equities by limit-
ing injunctive relief to the four appellants in this case. Were
this court to direct the issuance of such a preliminary injunc-
tion, a follow-on class-action suit seeking the same relief would
inevitably follow and almost inevitably have to be granted.
Allowing preliminary injunctive relief in such a case would ul-
timately result in the very harms to the public interest detailed
above. As a result, the balance of the equities in this case does
not favor a preliminary injunction, no matter the injunction’s
scope.
In sum, the ancient principle primum non nocere — first,
do no harm — “counsels against forcing changes before there
has been a determination of the parties’ legal rights” and in

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40
favor of maintaining the status quo. O Centro Espirita, 389
F.3d at 1012. Hanson has not, on the record before us, shown
the type of irreparable harm and favorable balancing of equities
and interests that can warrant the exceptional relief of a status-
quo-altering injunction handing him the same relief he would
ordinarily obtain only after prevailing on the merits.
V. Summary and Conclusion
Because Hanson has failed to demonstrate a likelihood of
success on the merits or that he has suffered irreparable harm,
and because the balance of equities does not weigh in his favor,
the order of the district court is
Affirmed.

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41
Appendix: Historical Firearms
Hanson offers a plethora of historical examples to argue
that extra-large capacity magazines (ELCMs) are nothing new.
For the reasons given below, each of his examples misses the
mark.
His first example is a 16-shot wheellock created around
1580. See David B. Kopel, The History of Firearm Magazines
and Magazine Prohibitions, 78 ALB . L. R EV. 849, 852 & n.21
(2015) (citing Lewis Winant, Firearms Curiosa 168–70 (Ishi
Press Int’l 2009) (1954)). The wheellock lacks both the rapid-
reloading capability and the trigger control of a modern semi-
automatic handgun with a detachable magazine, which limited
its potential lethality. One wheel lock would ignite a fuse and
fire the ten upper charges without stopping and another wheel
lock would fire the remaining six lower charges. This gun was
“very rare,” however; indeed, it may have been a one-off, arti-
sanal curiosity. Winant, above, at 168–70; see A 16-Shot
Wheel Lock, America’s 1 st Freedom (June 2014),
https://web.archive.org/web/20140702092902/https:/www.nra
publications.org/index.php/17739/a-16-shot-wheel-lock/
(noting the “highly decorated” and “unique rifle” had
“achieved a multi-shot capability that would not be reached
again until the American Civil War”).
Hanson also directs us to the “Puckle Gun,” patented in
1718, which he describes as one of “the more successful of the
early designs” of multi-shot firearms. But the Puckle Gun
never entered commercial production; only two prototypes
were made; and they suffered from mechanical problems. Br.
of Amici Curiae Brady Center to Prevent Gun Violence et al.
(Brady Br.) at 10–11. Even if it had entered commercial
production, however, the Puckle Gun still would not be a
“relevantly similar” analogue: It was mounted on a tripod and

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42
operated by hand crank, making it more akin to a Gatling gun
than to a semiautomatic handgun with an ELCM.
U.K. Patent No. 418 (issued May 15, 1718).
Hanson next proffers the Girandoni air rifle, invented in
1779. The Girandoni rifle was never in common use: Only
around 1,500 were produced and even fewer made their way to
America. Robert J. Spitzer, Understanding Gun Law History
after Bruen: Moving Forward by Looking Back, 51 F ORDHAM
URB . L.J. 57, 76–77 (2023); see also John Plaster, The History
of Sniping & Sharpshooting 70 (2008). It remained such a
curiosity that, in 1792, one museum proprietor in New York
charged visitors six pence to see it discharge a shot. Gardiner
Baker, To the Curious, The Weekly Museum (New York, NY),
Feb. 11, 1792.

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43
Hanson’s next example, the Jennings multi-shot flintlock
rifle, was beset by “technical challenges.” Ass’n of N.J. Rifle
& Pistol Clubs v. Att’y Gen. N.J., 974 F.3d 237, 255 (3d Cir.
2020) (Matey, J., dissenting) (cleaned up), cert. granted, judg-
ment vacated sub nom. Ass’n of N.J. Rifle & Pistol Clubs v.
Bruck, 142 S. Ct. 2894 (2022). The rifle has a “complicated
mechanism” with a moving hopper and swivel covers that
required a hammer to be pulled back for each shot. Corey R.
Wardrop, A Close-up Look at the Ellis-Jennings Repeating
Flintlock Rifle, THE F IREARM B LOG (July 27, 2017),
https://web.archive.org/web/20220402053233/https://www.th
efirearmblog.com/blog/2017/07/27/close-look-ellis-jennings-
repeating-flintlock-rifle/. Moreover, most of these rifles had a
capacity of only four shots, and only 521 were ever made. Id.
Hanson also points to “Pepperbox” pistols, which were ca-
pable of firing only “five or six rounds without reloading,” and
therefore are not comparable in lethality to a modern ELCM.
Brady Br. at 13 (citing Wheelgun Wednesday: A Closer Look
at Pepperbox Pistols, T HE F IREARM B LOG (Dec. 8, 2021),
https://perma.cc/2Z2U-RJ62)) (cleaned up). Pepperbox pistols
were also prone to “chain-firing," that is, all barrels firing at
once. Id.
Next is the Colt revolver, introduced in 1836. See
Improvement in Fire-Arms, U.S. Patent No. 9430X (issued
Feb. 25, 1836). The Colt revolver “was the first widely used
multishot weapon,” Jim Rasenberger, Revolver: Sam Colt and
the Six-Shooter that Changed America 401 (2020), but the
shooter was required to cock the hammer before firing each
round; the gun was limited to six shots; it was prone to
jamming; and, unlike a handgun with an ELCM, it could not be
rapidly reloaded. The six-shooter is not a relevant comparator
because the District allows six-shooters. Its magazine cap is
set at 10 (plus one in the chamber).

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44
Hanson next points to the Bennet & Haviland Revolving
Rifle, which began circulating in 1838, as well as the similar
Porter and Hall rifles of the 1850s. There is no evidence that
any of these rifles were in common use. John Paul Jarvis,
Bennet & Havilland Revolving Rifle: A Link in the Repeating
Rifle Chain, GUNS .COM (Apr. 3, 2012 5:44 PM),
https://perma.cc/6FLX-AE5G (“experts believe that Bennett &
Havilland made fewer than 10 full-scale” rifles); Ian
McCollum, RIA: Porter Turret Rifle, F ORGOTTEN WEAPONS
B LOG (Feb. 7, 2016), https://perma.cc/N5J5-R93H (only
“several thousand examples” of the Porter rifle were made);
Norm Flayderman, Flayderman’s Guide to Antique American
Firearms and their Values 713 (9th ed. 2007) (noting an
unknown quantity were made and the rifle is “[v]ery rare”).
The other antebellum firearms Hanson identifies — the
Enouy Ferris wheel revolver, the Jarre harmonica pistol, and
pin-fire revolvers — all have similar limitations. None was
ever in common use — indeed, the Enouy Ferris wheel
revolver may have been a one-off curiosity. Dan Zimmerman,
Is the 48-Shot Enouy the Most Unusual Revolver in History?,
THE TRUTH ABOUT GUNS (Oct. 18, 2015),
https://perma.cc/6FW9-J27J (noting “[t]here are no records of
it ever being manufactured or sold commercially”). Those that
were capable of firing more than six shots tended to be
cumbersome and unwieldy, limiting their potential lethality.

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45
Lewis Winant, Firearms Curiosa 207 (Greenberg 1955) (1954)
(depicting the Ferris wheel revolver). Although one version of
the Jarre harmonica pistol did have a detachable magazine, it
still required the hammer to be cocked before firing each round,
id. at 244–45, and “[t]he particularly awkward design of the
pinfire cartridge made it difficult to deploy in a repeating pis-
tol.” Unique Handgun Detail, THE HANDGUN I NFORMATION
R ESOURCE (2024), https://perma.cc/6PVH-LWDD.
Hanson’s next example, the Josselyn belt-fed chain pistol
(patented in 1866), was likewise unwieldy and was likely never
in common use. As with the Colt revolver, the need to cock
the hammer before firing each round limited the rate of fire and
therefore the potential lethality of the weapon. Chain Guns—
I, F IREARMS HISTORY, TECHNOLOGY & DEVELOPMENT B LOG
(July 23, 2014 1:35 AM), https://perma.cc/MT7P-JP5L.

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46
Improvement in Revolving Fire-Arms, U.S. Patent No. 52,248
(issued Jan. 24, 1866).
Hanson also argues the Winchester Repeater rifle of 1866
is analogous to an ELCM. Although it had a magazine capable
of firing more than ten rounds without reloading, it required
manual manipulation of a lever in between each shot. Ryan
Hodges, The 1866 Rifle, TAYLOR ’S & C OMPANY (Aug. 26,
2020), https://perma.cc/7STW-8WMS. The magazine was
also exposed, which made it susceptible to jamming. Id. For
this reason, the rifle lacks the potential lethality of a modern
weapon equipped with an ELCM.

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W ALKER, Circuit Judge, dissenting:
In District of Columbia v. Heller, the Supreme Court held
that the government cannot categorically ban an arm in
common use for lawful purposes. Magazines holding more
than ten rounds of ammunition are arms in common use for
lawful purposes. Therefore, the government cannot ban them.
I. Background
In 2003, Dick Heller and five other plaintiffs alleged that
the District of Columbia’s ban on handguns violated their
Second Amendment right to “keep and bear Arms.”1 Five
years later, the Supreme Court agreed.2 It held D.C.’s law
unconstitutional because the law banned an arm “in common
use” for lawful purposes.3
A month after Heller’s victory, he returned to federal
court.4 This time, in Heller II, he challenged D.C.’s felony
prohibition on possessing what D.C. calls a “large capacity
ammunition feeding device” — defined as “a magazine, belt,
1 U.S. Const. amend. II.
2 District of Columbia v. Heller, 554 U.S. 570, 635-36 (2008).
3 Id. at 624, 627 (cleaned up); see also id. at 629.
When I refer to a ban on arms in common use for lawful purposes,
I mean a complete ban that covers everyone, everywhere — not, for
example, targeted “prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms,” id. at 626-27, or “prohibitions on carrying
concealed weapons,” id. at 626, or the disarming of individuals who
pose “a credible threat to the physical safety of others,” United States
v. Rahimi, No. 22-915, 602 U.S. ___, slip op. at 15 (June 21, 2024).
4 Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)
(Heller II).

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2
drum, feed strip, or similar device that has a capacity of, or that
can be readily restored or converted to accept, more than 10
rounds of ammunition.” 5 D.C.’s ban on these plus-ten
magazines is categorical; it extends to every purpose (even
self-defense) and to every location (even inside the home).6
Heller lost his second suit before a divided panel of this
court. It upheld D.C.’s ban on plus-ten magazines because the
ban was substantially related to an important government
interest.7 But this court’s decision in Heller II was effectively
overruled in New York State Rifle & Pistol Association, Inc. v.
Bruen.8 There, the Supreme Court reaffirmed its holding in
Heller I and repudiated “means-end scrutiny in the Second
Amendment context.”9
5 D.C. Code § 7-2506.01(b) (2009); see Heller II, 670 F.3d at 1249.
Heller II also included challenges to D.C.’s ban on semi-automatic
rifles and its gun registration and licensing requirements. 670 F.3d
at 1248-49.
6 The prohibited magazines are neither unusually “large,” D.C. Code
§ 7-2506.01(b) (2013), nor “extra-large,” Majority Op. at 5. See
infra Part III.A. So I will simply call them “plus-ten magazines.”
Cf. Duncan v. Bonta, 19 F.4th 1087, 1140 n.1 (9th Cir. 2021)
(Duncan II) (en banc) (Bumatay, J., dissenting) (“we would be more
correct to refer to” plus-ten magazines as “standard-capacity
magazines,” rather than “large-capacity magazine[s]” (cleaned up)),
cert. granted, judgment vacated, and remanded, 142 S. Ct. 2895
(2022), and vacated and remanded by Duncan v. Bonta, 49 F.4th
1228 (9th Cir. 2022).
7 Heller II, 670 F.3d at 1263-64; cf. Heller v. District of Columbia,
801 F.3d 264, 274-80 (D.C. Cir. 2015) (Heller III) (applying means-
end scrutiny to D.C.’s gun registration regime).
8 142 S. Ct. 2111 (2022).
9 Id. at 2127; see id. at 2125-27.

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3
After Bruen, Andrew Hanson and three other D.C.
residents filed this suit. They own handguns, as well as
magazines that hold up to 17 rounds of ammunition. Because
of D.C.’s ban on plus-ten magazines, they must store those
magazines outside of D.C., away from their homes.
These gun owners sought a permanent injunction and a
declaration that D.C.’s ban is unconstitutional.
Simultaneously, they requested a preliminary injunction
permitting them to keep their up-to-17-round magazines with
their handguns in D.C. while this suit proceeded.
The district court found that the gun owners were not
likely to succeed on the merits.10 So it denied the preliminary
injunction without assessing any other equitable factors.11 The
gun owners appealed, requesting a preliminary or permanent
injunction.
Because the district court’s decision depended entirely on
a legal conclusion — that the government can categorically
ban an arm in common use for lawful purposes — review is de
novo.12
10 Hanson v. District of Columbia, 671 F. Supp. 3d 1, 3 (D.D.C.
2023).
11 Id.; see Winter v. Natural Resources Defense Council, Inc., 555
U.S. 7, 20 (2008) (a party seeking a preliminary injunction must
show that (1) “he is likely to succeed on the merits,” (2) “he is likely
to suffer irreparable harm in the absence of preliminary relief,”
(3) “the balance of equities tips in his favor,” and (4) “an injunction
is in the public interest”).
12 Huisha-Huisha v. Mayorkas, 27 F.4th 718, 726 (D.C. Cir. 2022).

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4
II. The Government Cannot Ban Arms in Common Use
for Lawful Purposes
The Second Amendment guarantees law-abiding citizens
a right against categorical bans of an arm in common use for
lawful purposes. What follows is the story of how the Supreme
Court came to affirm that right — and then reaffirm it over and
over and over again.
A. Text and History
I begin with a much-abbreviated version of the history that
informs the Second Amendment.13 My hope here is to provide
any readers new to this topic with a prologue to the Supreme
Court’s Second Amendment jurisprudence. Later, I’ll explain
why that jurisprudence holds that the government cannot ban
an arm in common use for lawful purposes.
1. The English Bill of Rights and Colonial History
(1689-1775)
In the 1660s, Britain’s Stuart king began to disarm
Protestants and other politically disfavored subjects.14 After
the Stuarts’ ouster and exile in 1688, King William and Queen
Mary assented to a parliamentary declaration that became the
13 Some of the finest judges in the country have written detailed
accounts of that history, which I commend to the interested reader.
The most recent example is Judge Richardson’s excellent dissent in
Bianchi v. Brown, No. 21-1255, 111 F.4th __, slip op. at 85-183 (4th
Cir. Aug. 6, 2024) (en banc). Others are cited throughout this
opinion.
14 Heller, 554 U.S. at 592-93.

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5
1689 English Bill of Rights.15 It “explicitly protected a right to
keep arms for self-defense.”16
“As English subjects,” American “colonists considered
themselves to be vested with the same fundamental rights as
other Englishmen.”17 That included the “right of self-
preservation” to “repel force by force.”18 So when King
George III tried “to disarm the colonists just as the Stuarts
attempted to disarm Protestants,” his attempts “provoked
polemical reactions by Americans invoking their rights as
Englishmen to keep arms.” 19
Then, in 1775, the “spark that ignited the American
Revolution was struck at Lexington and Concord, when the
15 Id. at 593; Duncan v. Becerra, 970 F.3d 1133, 1144 (9th Cir. 2020)
(Duncan I) (panel), reh’g en banc granted, opinion vacated, 988 F.3d
1209 (9th Cir. 2021), and on reh’g en banc sub nom. Duncan II, 19
F.4th 1087.
16 McDonald v. City of Chicago, 561 U.S. 742, 768 (2010); see also
1 W. & M., ch. 2 (1689) (“That the Subjects which are Protestants,
may have Arms for their Defence suitable to their Conditions, and as
allowed by Law.”), in 6 Statutes of the Realm at 143.
In a reversal of the Stuart Era, the English Bill of Rights extended
gun rights only to Protestants. But by 1765, though anti-Catholic
politics and prejudice persisted, “the right to keep and bear arms was
one of the fundamental rights of Englishmen.” McDonald, 561 U.S.
at 768 (cleaned up) (noting that Blackstone recognized this
fundamental right in 1765).
17 McDonald, 561 U.S. at 816 (Thomas, J., concurring in part and
concurring in the judgment).
18 Heller, 554 U.S. at 595 (cleaned up) (citing 1 William Blackstone,
Commentaries at *145 n.42 (1803) (notes of St. George Tucker)).
19 First quoting Duncan I, 970 F.3d at 1153; then quoting McDonald,
561 U.S. at 768 (cleaned up).

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6
British governor dispatched soldiers to seize the local farmers’
arms and powder stores.” 20
2. The Second Amendment, State-Constitution Analogues,
and the “Palladium of the Liberties of a Republic”
(1775-1833)
The American Revolution led to Western Civilization’s
“seminal era of constitution writing.”21 The thirteen states
“created the first thirteen constitutions in this country, indeed
many of the first constitutions in the world.”22 Almost
immediately, four of them guaranteed gun rights.23
By 1787, the nation was debating whether to ratify the
United States Constitution, proposed by that summer’s
Philadelphia Convention. 24 In that debate, “the fear that the
Federal Government would disarm the people in order to
impose rule through a standing army or select militia was
pervasive in Antifederalist rhetoric.”25 “In response, the
Federalists agreed to include a Bill of Rights, which, of course,
20 Rahimi, slip op. at 5; Duncan I, 970 F.3d at 1153.
21 Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making
of American Constitutional Law 11 (2018).
22 Id. at 10.
23 Heller, 554 U.S. at 600-02; see also McDonald, 561 U.S. at 769.
24 Heller, 554 U.S. at 598-99 (discussing ratification debates).
25 Id. (citing Letters from The Federal Farmer III (Oct. 10, 1787), in
2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981), and
2 Documentary History of the Ratification of the Constitution 508-
09 (M. Jensen ed. 1976) (comments of John Smilie at the
Pennsylvania ratifying convention)).

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featured the right to bear arms.”26 Its 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. 27
In the three decades that followed ratification of the Bill of
Rights, nine more states guaranteed gun rights in their
constitutions.28 After that, as new states joined the Union,
many of their constitutions made similar guarantees.29 They
reflected what Joseph Story observed in 1833: “The right of the
26 Duncan I, 970 F.3d at 1144.
27 U.S. Const. amend. II.
28 See McDonald, 561 U.S. at 769.
29 See, e.g., An Act to Provide for the Due Execution of the Laws of
the United States Within the State of Michigan, ch. 239, sec. 1, 5 Stat
61, 61 (1836) (applying United States law to Michigan); An Act to
Admit the State of Michigan into the Union, upon an Equal Footing
with the Original States, ch. 6, sec. 1, 5 Stat. 144, 144 (1837)
(formally admitting Michigan as a state); Mich. Const. of 1835, art. I,
§ 13 (“right to bear arms”); An Act for the Admission of the State of
Arkansas into the Union, and to Provide for the Due Execution of the
Laws of the United States, Within the Same, and for Other Purposes,
ch. 100, secs. 1 & 3, 5 Stat. 50, 50-51 (1836) (admitting Arkansas);
Ark. Const. of 1836, art. II, § 21 (“right to keep and to bear arms”);
An Act to Extend the Laws of the United States over the State of
Texas, and for Other Purposes, ch. 1, sec. 1, 6 Stat. 1, 1 (1845)
(annexing Texas); Tex. Const. of 1845, art. I, § 13 (“right to keep
and bear arms”); An Act for the Admission of Iowa and Florida into
the Union, ch. 48, sec. 1, 6 Stat. 742, 742 (1845) (admitting Florida);
An Act Supplemental to the Act for the Admission of Florida and
Iowa into the Union, and for Other Purposes, ch. 75, sec. 2, 6 Stat.
788, 788 (1845) (formally applying United States law to Florida);
Fla. Const. of 1838, art. I, § 21 (“right to keep and to bear arms”).

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citizens to keep and bear arms has justly been considered, as
the palladium of the liberties of a republic . . . .”30
3. The Fourteenth Amendment
(1868)
Just as guns were often the difference between life and
death for “the remote settler” who needed “to defend himself
and his family against hostile Indian tribes and outlaws, wolves
and bears,”31 guns were often the only defense for African-
Americans against night riders and lynch mobs after the Civil
War.32 So when states “of the old Confederacy” engaged in
“systematic efforts . . . to disarm” recently freed slaves and
“many of the over 180,000 African-Americans who served in
the Union Army,” Congress passed the Freedmen’s Bureau Act
30 3 Joseph Story, Commentaries on the Constitution of the United
States § 1890, at 746 (1833); see also McDonald, 561 U.S. at 769-
70 (citing “Founding-era legal commentators” including Joseph
Story, St. George Tucker, and William Rawle).
31 Oral Arg. Tr. at 8 (comment of Kennedy, J.), District of Columbia
v. Heller, 554 U.S. 570 (2008) (No. 07-290), 2008 WL 731297.
32 McDonald, 561 U.S. at 855-58 (Thomas, J., concurring in part and
concurring in the judgment); see also Duncan I, 970 F.3d at 1154
(The NAACP’s co-founder once wrote of a year plagued by racial
lynchings in the late nineteenth century, “the only case where the
proposed lynching did not occur, was where the men armed
themselves . . . and prevented it. The only times an Afro-American
who was assaulted [and] got away has been when he had a gun and
used it in self-defense.” (quoting Ida B. Wells, Southern Horrors and
Other Writings: The Anti-Lynching Campaign of Ida B. Wells, 1892-
1900, at 70 (Jacqueline Jones Royster ed., 1997))).

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9
of 1866. 33 It guaranteed “the constitutional right to bear arms”
to all citizens “without respect to race or color.” 34
That same year, Congress enacted the Civil Rights Act.35
Its “principal proponents . . . meant to end the disarmament of
African-Americans in the South.”36 Then, “to provide a
constitutional basis for protecting the rights set out in the Civil
Rights Act of 1866,” Congress passed and the states ratified the
Fourteenth Amendment. 37 Its first section provides:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the
equal protection of the laws.38
4. Takeaways from the Second Amendment’s Text and
History
D.C. has offered no reason to doubt that throughout all of
this history, no federal or state legislature enacted a blanket ban
on a gun in common use for lawful purposes. Yes, there could
33 McDonald, 561 U.S. at 771.
34 Ch. 200, § 14, 14 Stat. 173, 176-177 (1866).
35 Ch. 31, 14 Stat. 27 (1866).
36 McDonald, 561 U.S. at 774 n.23.
37 Id. at 775.
38 U.S. Const. amend. 14 § 1; see also id. § 5 (granting Congress
enforcement power).

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10
be limits on who possesses a gun.39 Yes, there could be limits
on where and how you carry a gun.40 And yes, there could be
limits on owning and carrying unusual guns.41 But D.C. has
failed to identify any categorical ban on a gun in common use
for lawful purposes in the first century of our nation’s history.42
B. Supreme Court Precedents
The Supreme Court’s first notable application of the
Second Amendment did not occur until 1939 — when it
distinguished unusual weapons from those in common use.43
And its first extensive consideration of the Amendment’s
meaning did not come until 2008 — when it relied on this
distinction to hold that the government cannot completely ban
an arm in common use for lawful purposes. In the 16 years
since then, the Court has invariably reaffirmed that principle.
39 Rahimi, slip op. at 10-13 (citing Founding-era “regulations
targeting individuals who physically threatened others”).
40 Bruen, 142 S. Ct. at 2133 (citing examples of “sensitive places”
where weapons were historically prohibited).
41 Heller, 554 U.S. at 627 (explaining that there is an “historical
tradition of prohibiting the carrying of dangerous and unusual
weapons” (cleaned up)).
42 See Bruen, 142 S. Ct. at 2126 (it is the government’s burden to
“demonstrate that [its] regulation is consistent with this Nation’s
historical tradition of firearm regulation”).
43 “For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did not
significantly regulate the possession of firearms by law-abiding
citizens.” Heller, 554 U.S. at 625.

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1. United States v. Miller
(1939)
In 1934, Congress enacted the National Firearms
Act — the first significant federal gun law.44 It regulated a
special class of unusual firearms.45 This class included fully
automatic machine guns, sawed-off shotguns, and short-
barreled rifles.46
The National Firearms Act required pre-existing owners to
register those firearms.47 It also compelled sellers and
transferors to pay special taxes.48 So obtaining a covered arm
became expensive, but not illegal.
The Supreme Court upheld the National Firearms Act in
United States v. Miller.49 There, “two washed-up Oklahoma
bank robbers” had been charged with transporting an
unregistered sawed-off shotgun in interstate commerce.50 The
44 National Firearms Act, Pub. L. No. 73-474, 48 Stat. 1236 (1934).
45 Id. § 1(a), 48 Stat. at 1236.
46 Id.
Machine guns are automatic weapons. Id. § 1(b), 48 Stat. at 1236
(defining “machine gun”). They fire “repeatedly with a single pull
of the trigger. That is, once its trigger is depressed, the weapon will
automatically continue to fire until its trigger is released or the
ammunition is exhausted.” Staples v. United States, 511 U.S. 600,
602 n.1 (1994).
47 National Firearms Act, § 5(a), 48 Stat. at 1238.
48 Id. §§ 2(a), 3(b), 48 Stat. at 1237.
49 307 U.S. 174, 183 (1939).
50 Brian L. Frye, The Peculiar Story of United States v. Miller, 3
N.Y.U. J.L. & Liberty 48, 48 (2008); see id. at 50 (describing how
Miller was a “test case arranged by the government and designed to
support the constitutionality of federal gun control”).

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12
Court held that the Second Amendment does not protect “the
right to keep and bear such an instrument.”51
In explaining why, Miller referred to Founding-Era
history. It observed that men called to serve in the militia
“were expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.”52 Therefore, in the
Court’s view, the Second Amendment did not protect the
weapon at issue in Miller, which was unusual at the time of the
bank robbers’ arrest.53
The Supreme Court has since “read Miller to say only that
the Second Amendment does not protect those weapons not
typically possessed by law-abiding citizens for lawful
purposes,”54 explaining (this time without the multiple
negatives) that “Miller said . . . the sorts of weapons protected
were those in common use at the time.”55
2. Staples v. United States
(1994)
Five and a half decades after Miller, the Supreme Court
considered another case about the National Firearms
Act — Staples v. United States.56
51 Miller, 307 U.S. at 178.
52 Id. at 179 (emphasis added); see id. at 179-82 (citing state laws
requiring men to keep and bear commonly used firearms for militia
service).
53 Id. at 178.
54 Heller, 554 U.S. at 625; see also id. at 623 (Miller recognizes that
“the Second Amendment right, whatever its nature, extends only to
certain types of weapons”).
55 Id. at 627 (cleaned up).
56 511 U.S. 600 (1994).

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13
Staples reversed a conviction under the National Firearms
Act for possession of an unregistered fully automatic machine
gun.57 The Court held that the government must (and did not)
prove the defendant knew his AR-15 rifle had been converted
to enable automatic fire.58 That’s because most modern guns
are “so commonplace and generally available” that a defendant
cannot be considered “on notice” of likely regulation just
because a gun is dangerous. 59
Consistent with Miller, Staples contrasted guns like a
semiautomatic AR-15 rifle that “traditionally have been widely
accepted as lawful possessions” with “certain categories” of
unusual guns like fully automatic “machineguns, sawed-off
shotguns, and artillery pieces.”60 So even though Staples was
not a constitutional decision, it confirmed a principle that
would matter in future cases about the Second Amendment:
Arms in common use for lawful purposes are legally distinct
from unusual, “quasi-suspect” arms.61
3. District of Columbia v. Heller
(2008)
D.C. has long been an anti-gun outlier in a nation where,
as Staples said, guns are “widely accepted as lawful
possessions.” 62 By 1976, D.C. had “banned all handgun
57 Id. at 602.
58 Id. at 603, 619.
59 Id. at 611.
60 Id. at 611-12.
61 See Heller II, 670 F.3d at 1288 (Kavanaugh, J., dissenting)
(cleaned up).
62 Staples, 511 U.S. at 612; see id. at 611-12.

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14
possession.”63 That ban was challenged by Dick Heller in a
suit decided by the Supreme Court in 2008. 64
During the litigation in Heller, D.C. made a series of
arguments designed to render the Second Amendment a dead
letter. For starters, D.C. argued that the Second Amendment
does not “entitle[ ] individuals to have guns for their own
private purposes.”65 Next, D.C. argued that there’s no right to
handguns when “the District allows residents to keep rifles and
shotguns.”66 Finally, D.C. argued that its “predictive judgment
about how best to reduce gun violence was reasonable” and
“entitled to substantial deference.”67
In District of Columbia v. Heller, the Supreme Court
rejected every one of D.C.’s arguments. 68 In so doing, it made
four increasingly specific holdings. Each was dependent on the
holding before it.
Heller’s first holding was its broadest: As a general
matter, the Second Amendment guarantees an “individual
right” to possess and carry “arms,” though that right is “not
unlimited.”69
63 Wrenn v. District of Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017)
(citing D.C. Code § 7-2502.01(a), 7-2502.02(a)(4)).
64 Heller, 554 U.S. at 574-76.
65 Petitioner Br. at 8, Heller, 554 U.S. at 570 (No. 07-290), 2008 WL
102223.
66 Id. at 10; see id. at 48, 54-55.
67 Id. at 11.
68 See 554 U.S. 570, 628-29, 629, 634-36 (2008).
69 Id. at 579-81, 581-92, 626-28.

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15
Heller’s second holding concerned how to discover the
Second Amendment’s limits: Courts must rely “on the
historical understanding of the Amendment to demark the
limits on the exercise of that right.”70 This historical approach
led Heller to distinguish D.C.’s law from “longstanding
prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial
sale of arms.” 71 Heller thus “exemplifies” a “straightforward
historical inquiry.”72
In adopting this historical approach, “Heller decline[d] to
engage in means-end scrutiny generally” and “specifically
ruled out the intermediate-scrutiny test.”73 The Court
explained:
We know of no other enumerated constitutional right
whose core protection has been subjected to a
freestanding “interest-balancing” approach. The very
enumeration of the right takes out of the hands of
government — even the Third Branch of
Government — the power to decide on a case-by-case
basis whether the right is really worth insisting
upon.74
70 Bruen, 142 S. Ct. at 2128 (describing Heller).
71 Heller, 554 U.S. at 626-27.
72 Bruen, 142 S. Ct. at 2131.
73 Id. at 2129.
74 Heller, 554 U.S. at 634; see also id. (“A constitutional guarantee
subject to future judges’ assessments of its usefulness is no
constitutional guarantee at all.”); id. at 635 (“Like the First, [the
Second Amendment] is the very product of an interest balancing by
the people . . . .”).

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16
Heller then applied that “straightforward historical
inquiry”75 to reach its third holding: Whereas the United
States has a “historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons,’ there is no historical
tradition of banning arms ‘in common use.’”76 So arms “in
common use” are “protected,” and “a complete prohibition of
their use is invalid.”77
Heller’s third holding confirmed the same critical
distinction on which Miller had relied in 1939 — the
distinction between “unusual” weapons versus weapons “in
common use” for lawful purposes.78 That distinction
“dovetailed with the historical practice of the militia bringing
‘the sorts of lawful weapons that they possessed at home to
75 Bruen, 142 S. Ct. at 2131 (describing Heller).
76 Heller, 554 U.S. at 627 (quoting Miller, 307 U.S. at 179) (cleaned
up).
77 Id. at 624, 627, 629; see also Heller II, 670 F.3d at 1269
(Kavanaugh, J., dissenting) (Heller held that the government cannot
ban arms when “they have not traditionally been banned and are in
common use by law-abiding citizens.”); id. at 1271-72 (Kavanaugh,
J., dissenting) (“As to bans on categories of guns, the Heller Court
stated that the government may ban classes of guns that have been
banned in our ‘historical tradition’ — namely, guns that are
‘dangerous and unusual’ and thus are not the sorts of
lawful weapons that citizens typically possess at home.” (cleaned
up)); id. at 1272 (Kavanaugh, J., dissenting) (“The [Heller] Court
said that ‘dangerous and unusual weapons’ are equivalent to those
weapons not ‘in common use,’ as the latter phrase was used in United
States v. Miller.”).
78 Heller, 554 U.S. at 623-25; supra Part II.B.1 (discussing Miller).

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17
militia duty’; i.e., weapons that were ‘in common use at the
time.’”79
From there, Heller reached its fourth and final holding:
Because handguns are in common use today, law-abiding
citizens have a Second Amendment right to keep them in their
homes for self-defense.80 It didn’t matter whether D.C.
residents could already keep other guns — it only mattered that
handguns are in common use.81 Nor did it matter whether
handguns were once unusual — it only mattered that they are
common now. 82
Heller explained time and again that this fourth holding (a
right to handguns) depended on its third holding (a right to
possess arms “in common use” for lawful purposes):
 “It is enough to note, as we have observed, that the
American people have considered the handgun to be the
quintessential self-defense weapon.”83
79 Mark W. Smith, What Part of “In Common Use” Don't You
Understand?: How Courts Have Defied Heller in Arms-Ban
Cases — Again, Harv. J.L. & Pub. Pol’y Per Curiam, No. 41, at 4
(2023) (“Smith, How Courts Have Defied Heller”) (quoting Heller,
554 U.S. at 627).
80 Heller, 554 U.S. at 628-29; see also Bruen, 142 S. Ct. at 2143
(discussing Heller).
81 Heller, 554 U.S. at 629.
82 See id. at 582 (“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”).
83 Id. at 629.

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18
 “The handgun ban amounts to a prohibition of an entire
class of ‘arms’ that is overwhelmingly chosen by
American society for that lawful purpose.”84
 “Whatever the reason, handguns are the most popular
weapon chosen by Americans for self-defense in the
home, and a complete prohibition of their use is
invalid.”85
 “Under any of the standards of scrutiny that we have
applied to enumerated constitutional rights, banning
from the home the most preferred firearm in the nation
to keep and use for protection of one’s home and family
would fail constitutional muster.”86
In other words, Heller did not simply hold that the Second
Amendment is an individual right, then add a lot of dicta, and
then finally hold that D.C. cannot ban handguns. What came
between Heller’s first and last holdings is binding on lower
courts, because each of Heller’s four increasingly specific
holdings is dependent on the holding before it:
1) There is, in general, an individual right to keep and
bear arms;
2) Exceptions to that right depend on the history and
tradition of gun regulations;
3) There is no history and tradition of banning arms in
common use for lawful purposes; and
4) Handguns cannot be categorically banned precisely
because they are in common use for lawful purposes.
84 Id. at 628.
85 Id. at 629.
86 Id. at 628-29 (cleaned up).

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19
Of course, Heller did not ignore “the problem of handgun
violence in this country.”87 It took “seriously the concerns” of
those “who believe that prohibition of handgun ownership is a
solution.”88 But the Court was bound by the Second
Amendment’s command that the government may not ban arms
in common use for lawful purposes — whether good policy or
not. As this court later recognized: “Heller I closed off the
possibility” that we could “find some benefits weighty enough
to justify other effective bans on the right to keep common
arms.”89
4. McDonald v. City of Chicago
(2010)
Two years after Heller, in McDonald v. City of Chicago,
the Supreme Court confirmed that because of the Fourteenth
Amendment, “the Second Amendment right is fully applicable
to the States.”90 McDonald explained that “the right to keep
and bear arms is fundamental to our scheme of ordered
liberty.”91 It is “‘deeply rooted in this Nation’s history and
tradition.’”92
87 Id. at 636.
88 Id.
89 Wrenn, 864 F.3d at 665. But see Bianchi, slip op. at 64 (“Imagine,
then, living through these recent tragedies. Imagine the sense of loss
that afflicts not only the moment, but the lifetimes of those families
and friends affected. And then imagine that you mobilize and lobby
your representatives to pass preventative legislation, only to be told
by a court that your Constitution renders you powerless to save
others from your family’s fate.” (emphasis omitted)).
90 561 U.S. 742, 750 (2010).
91 Id. at 767 (emphasis omitted).
92 Id. at 768 (quoting Washington v. Glucksberg, 521 U.S. 702, 721
(1997)).

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20
At the same time, “McDonald underscore[d] that text,
history, and tradition guide analysis of gun laws and
regulations.” 93 It confirmed that exceptions to the general right
to keep and bear arms depend on “longstanding regulatory
measures,” not “judicial interest balancing,” which Heller had
“expressly rejected.”94 And like Heller, it held that “citizens
must be permitted to use handguns for the core lawful purpose
of self-defense” because handguns “are the most preferred
firearm in the nation to keep and use for protection of one’s
home and family.”95
In McDonald, the Supreme Court had a chance to back
away from Heller’s holdings. Instead, it doubled down.
5. “Defiance” of Heller
(2010-2022)
With Heller and McDonald, the Supreme Court left little
doubt about the validity of severe gun-control regimes. But
revanchist legislatures responded with “defiance.”96
D.C. led the way. After its ban on keeping handguns was
held unconstitutional, it followed “with a ban on carrying.”97
“And when that was struck down,” D.C. confined “carrying a
93 Heller II, 670 F.3d at 1278 (Kavanaugh, J., dissenting).
94 McDonald, 561 U.S. at 785-86 (plurality); see also id. at 803
(Scalia, J., concurring) (“traditional, historically focused method”).
95 Id. at 767-68 (cleaned up).
96 Silvester v. Becerra, 138 S. Ct. 945, 951 (2018) (Thomas, J.,
dissenting from denial of certiorari); cf. Cooper v. Aaron, 358 U.S.
1, 17 (1958) (“we should answer the premise of the actions of the
Governor and Legislature that they are not bound by our holding in
the Brown case”).
97 Wrenn, 864 F.3d at 655 (citing D.C. Code § 22-4504).

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21
handgun in public to those with a special need for self-
defense.”98 D.C. then lost in court again, this time after
arguing that the Second Amendment’s “core does not cover
public carrying at all.”99
D.C.’s unveiled contempt for Heller and McDonald was
not unique. For example, the Massachusetts Supreme Judicial
Court held that the Second Amendment does not protect stun
guns 100 — a decision that the unanimous Supreme Court
summarily reversed in Caetano v. Massachusetts.101 With a
terse, two-page opinion, the Court dispensed with the state
court’s thin reasoning as patently “inconsistent” with the
“clear” holdings of Heller and McDonald. 102
Caetano put lower courts on notice: Exceptions to gun
rights under the Second Amendment depend on a historical
tradition of analogous regulations, and there is no historical
tradition of banning arms in common use for lawful purposes.
Many state courts did not get the memo. Nor did some
federal circuit courts.
98 Id. (citing Palmer v. District of Columbia, 59 F. Supp. 3d 173
(D.D.C. 2014) and D.C. Code § 22-4506(a)-(b)).
99 Id. at 657.
100 Commonwealth v. Caetano, 26 N.E.3d 688, 692-94 (Mass. 2015).
101 577 U.S. 411, 412 (2016).
102 Id. at 412; see id. at 411-12 (swiftly rejecting each of the state
court’s three rationales for its holding, which were that (1) stun guns
“were not in common use at the time of the Second Amendment’s
enactment,” (2) stun guns are “unusual” because they are “a
thoroughly modern invention,” and (3) stun guns are not “readily
adaptable to use in the military” (cleaned up)).

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22
In particular, several federal circuits devised “a ‘two-step’
framework for analyzing Second Amendment challenges that
combines history with means-end scrutiny.”103 That approach
was “policy by another name,” and it “eviscerate[d] many of
the protections recognized in Heller and McDonald.” 104 In the
Ninth Circuit, for example, the government at one point
enjoyed an “‘undefeated, 50–0 record’” against Second
Amendment challenges.105
Meanwhile, a number of Supreme Court justices raised the
alarm:
 Justice Thomas (joined by Justice Scalia) lamented that
“[d]espite the clarity with which we described the Second
Amendment’s core protection for the right of self-defense,
lower courts . . . have failed to protect it.”106
 Justice Thomas (again joined by Justice Scalia) criticized
lower courts’ “crabbed reading of Heller” and
103 Bruen, 142 S. Ct. at 2125; see id. at 2125-27 & n.4 (citing cases).
104 First quoting Rahimi, slip op. at 18 (Kavanaugh, J., concurring);
then quoting Friedman v. City of Highland Park, 577 U.S. 1039,
1041 (2015) (Friedman II) (Thomas, J., dissenting from denial of
certiorari). Because I later refer to the Seventh Circuit opinion with
the same caption, I will cite this one as Friedman II.
105 Rahimi, slip op. at 5 (Gorsuch, J., concurring) (quoting Duncan II,
19 F.4th at 1167 n.8 (VanDyke, J., dissenting)); see also Bruen, 142
S. Ct. at 2131 (“If the last decade of Second Amendment litigation
has taught this Court anything, it is that federal courts tasked with
making such difficult empirical judgments regarding firearm
regulations under the banner of ‘intermediate scrutiny’ often defer to
the determinations of legislatures.”).
106 Jackson v. City and County of San Francisco, 135 S. Ct. 2799,
2799 (2015) (Thomas, J., dissenting from denial of certiorari).

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23
“noncompliance with our Second Amendment
precedents.”107
 Justice Thomas said that “lower courts are resisting this
Court’s decisions in Heller and McDonald and are failing
to protect the Second Amendment to the same extent that
they protect other constitutional rights.”108
 Justice Alito (joined by Justice Thomas) criticized lower-
court “reasoning” that “defies our decision in Heller.”109
 Justice Alito (joined by Justice Gorsuch) expressed
“concern” about “the way Heller has been treated in the
lower courts.”110
 Justice Kavanaugh shared a similar “concern that some
federal and state courts may not be properly applying
Heller and McDonald.”111
 Justice Thomas (joined by Justice Kavanaugh) again
accused the lower courts of “blatant defiance,” explaining
that means-end scrutiny was “entirely inconsistent with
Heller” and “appear[ed] to be entirely made up.” 112
These five justices did not chastise lower courts only for
ignoring Heller’s holding that history and tradition alone
107 Friedman II, 577 U.S. at 1039, 1041 (Thomas, J., dissenting from
denial of certiorari).
108 Silvester, 138 S. Ct. at 950 (Thomas, J., dissenting from denial of
certiorari).
109 Caetano, 577 U.S. at 414 (Alito, J., concurring in the judgment).
110 New York State Rifle & Pistol Association v. City of New York,
140 S. Ct. 1525, 1544 (2020) (Alito, J., dissenting).
111 Id. at 1527 (Kavanaugh, J., concurring).
112 Rogers v. Grewal, 140 S. Ct. 1865, 1867 (2020) (Thomas, J.,
dissenting from denial of certiorari).

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determine exceptions to the Second Amendment’s textual
baseline. They also chided lower courts for ignoring Heller’s
more specific holding — that there is no historical tradition of
categorical bans on arms “in common use” for lawful
purposes.113
Consider, for example, Friedman v. City of Highland
Park.114 The Court declined to take up a challenge to a city ban
on “many of the most commonly owned” semiautomatic rifles
and the plus-ten magazines commonly used with them.115
Justice Thomas dissented from the denial of certiorari, joined
by Justice Scalia. He explained that Heller and McDonald do
not allow “categorical bans on firearms that millions of
Americans commonly own for lawful purposes,”116 repeatedly
underscoring Heller’s third holding about arms in common use:
 “Heller asks whether the law bans types of firearms
commonly used for a lawful purpose — regardless of
whether alternatives exist.”117
 “Heller draws a distinction between such firearms [in
common use for a lawful purpose] and weapons specially
adapted to unlawful uses and not in common use, such as
sawed-off shotguns.”118
113 Heller, 554 U.S. at 627.
114 577 U.S. 1039, 1039 (2015) (Thomas, J., dissenting from denial
of certiorari).
115 Id. at 1039 (Thomas, J., dissenting from denial of certiorari).
116 Id. (Thomas, J., dissenting from denial of certiorari).
117 Id. at 1042 (Thomas, J., dissenting from denial of certiorari).
118 Id. (Thomas, J., dissenting from denial of certiorari).

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 Heller and McDonald “excluded from [Second
Amendment] protection only those weapons not typically
possessed by law-abiding citizens for lawful purposes.”119
 “Roughly 5 million Americans own AR-style
semiautomatic rifles. The overwhelming majority of
citizens who own and use such rifles do so for lawful
purposes, including self-defense and target shooting.
Under our precedents, that is all that is needed for citizens
to have a right under the Second Amendment to keep such
weapons.” 120
Consider also Caetano, the stun-gun case in which the
unanimous Supreme Court summarily reversed the
Massachusetts Supreme Judicial Court. There, Justice Alito
(joined by Justice Thomas) wrote separately to emphasize
Heller’s third holding about arms in common use:
 “[T]he pertinent Second Amendment inquiry is whether
[the arms] are commonly possessed by law-abiding
citizens for lawful purposes today.”121
 “A weapon may not be banned unless it is both dangerous
and unusual.” 122
119 Id. at 1040 (Thomas, J., dissenting from denial of certiorari)
(cleaned up).
120 Id. at 1042 (Thomas, J., dissenting from denial of certiorari)
(emphasis added).
121 Caetano, 577 U.S. at 420 (Alito, J., concurring in the judgment)
(emphasis omitted).
122 Id. at 417 (Alito, J., concurring in the judgment).

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 “[T]he relative dangerousness of a weapon is irrelevant
when the weapon belongs to a class of arms commonly
used for lawful purposes.” 123
 “While less popular than handguns, stun guns are widely
owned and accepted as a legitimate means of self-defense
across the country. Massachusetts’ categorical ban of such
weapons therefore violates the Second Amendment.”124
Supreme Court justices were not alone in objecting to
lower courts’ “eviscerat[ion]” of Heller and McDonald.125 “A
chorus” of district judges and dissenting circuit judges echoed
them.126 One was then-Judge Kavanaugh.
123 Id. at 418 (Alito, J., concurring in the judgment) (emphasis
added).
124 Id. at 420 (Alito, J., concurring in the judgment) (emphasis
added); see id. (Alito, J., concurring in the judgment) (noting “that
hundreds of thousands of Tasers and stun guns have been sold to
private citizens, who it appears may lawfully possess them in 45
States” (cleaned up)).
125 Friedman II, 577 U.S. at 1041 (Thomas, J., dissenting from denial
of certiorari).
126 Duncan II, 19 F.4th at 1147 (Bumatay, J., dissenting, joined by
Ikuta and Nelson, JJ.) (citing Mai v. United States, 974 F.3d 1082,
1083 (9th Cir. 2020) (Collins, J., dissenting from the denial of reh’g
en banc)); id. at 1097 (VanDyke, J., dissenting from the denial of
reh’g en banc); Association of New Jersey Rifle & Pistol Clubs, Inc.
v. Attorney General of New Jersey, 910 F.3d 106, 126 (3d Cir. 2018)
(Bibas, J. dissenting); Mance v. Sessions, 896 F.3d 390, 394 (5th Cir.
2018) (Elrod, J., joined by Jones, Smith, Willett, Ho, Duncan, and
Engelhardt, JJ., dissenting from the denial of reh’g en banc); Tyler v.
Hillsdale Cnty. Sheriff’s Department, 837 F.3d 678, 702 (6th Cir.
2016) (Batchelder, J., concurring in most of the judgment); id. at 710
(Sutton, J., concurring in most of the judgment)).

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Dissenting in Heller II, Judge Kavanaugh urged this court
to apply Heller I’s second and third holdings. He said, “Heller
and McDonald leave little doubt that courts are to assess gun
bans and regulations based on text, history, and tradition, not
by a balancing test such as strict or intermediate scrutiny.”127
And he added, “In Heller, the Supreme Court held that
handguns . . . are constitutionally protected because they have
not traditionally been banned and are in common use by law-
abiding citizens.”128
6. New York State Rifle & Pistol Association, Inc. v. Bruen
(2022)
In New York State Rifle & Pistol Association, Inc. v.
Bruen, the Supreme Court vindicated the chorus of circuit-
court dissenters, repudiated “means-end” scrutiny (again), and
(again) reaffirmed Heller’s second holding that “when the
Second Amendment’s plain text covers an individual’s
conduct,” exceptions to that right must be “consistent with this
Nation’s historical tradition of firearm regulation.”129
127 Heller II, 670 F.3d at 1271 (Kavanaugh, J., dissenting); see also
id. at 1272 (Kavanaugh, J., dissenting) (“The scope of the right is
thus determined by ‘historical justifications.’” (quoting Heller, 554
U.S. at 635)).
128 Id. at 1269 (Kavanaugh, J., dissenting) (emphasis added); see also
id. at 1288 (Kavanaugh, J., dissenting) (“the government may not
generally ban semi-automatic guns” because “semi-automatic
weapons ‘traditionally have been widely accepted as lawful
possessions’” (quoting Staples, 511 U.S. at 612)).
129 142 S. Ct. 2111, 2126-27 (2022); see also id. at 2131 (“The test
that we set forth in Heller and apply today requires courts to assess
whether modern firearms regulations are consistent with the Second
Amendment’s text and historical understanding.”); id. at 2128
(Heller “assessed the lawfulness of that handgun ban by scrutinizing
whether it comported with history and tradition”).

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At the same time, Bruen gave lower courts additional
guidance about how to apply Heller’s history-and-tradition
test. As in other constitutional contexts, the burden is on the
government to justify regulations that are “presumptively
protect[ed].”130 And the government satisfies that burden only
if it can “identify a well-established and representative
historical analogue” within our country’s historical tradition.131
Bruen applied that history-and-tradition test to a New
York law that conditioned licenses to carry handguns “on a
citizen’s showing of” a “special need for self-defense.”132
Bruen needed to conduct its own historical inquiry
“because . . . Bruen did not involve an arms ban” and so “could
not be resolved by applying Heller’s rule” that the government
cannot ban arms in common use for lawful purposes. 133 The
Court considered the history and held that New York’s law was
not “consistent with the Second Amendment’s text and
historical understanding.” 134
In addition, Bruen reaffirmed Heller’s third
holding — that, in view of our nation’s history and tradition,
the government cannot categorically ban a class of arms in
common use for lawful purposes: “[Heller] found it ‘fairly
supported by the historical tradition of prohibiting the carrying
of dangerous and unusual weapons’ that the Second
Amendment protects the possession and use of weapons that
are ‘in common use at the time.’”135 Heller’s “historical
130 Id. at 2129-30.
131 Id. at 2133 (emphasis omitted).
132 Id. at 2122.
133 Smith, How Courts Have Defied Heller, at 11 (emphasis omitted).
134 Bruen, 142 S. Ct. at 2131.
135 Id. at 2128 (quoting Heller, 554 U.S. at 627 (cleaned up)).

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analysis sufficed to show that the Second Amendment did not
countenance a complete prohibition on the use of the most
popular weapon chosen by Americans for self-defense in the
home.”136
So in summary, Bruen:
 Confirmed Heller’s second holding, which established
the history-and-tradition test;
 Described how to apply Heller’s history-and-tradition
test to types of gun regulations that the Supreme Court
has not already considered;
 Held that there is no historical tradition analogous to
New York’s public-carry regulation — which was a
time-place-manner regulation, not a categorical ban
controlled by Heller’s third holding that the
government cannot ban arms “in common use” for
lawful purposes; and
 Reaffirmed that third holding of Heller.
7. United States v. Rahimi
(2024)
Just two years after Bruen, the Supreme Court returned to
the Second Amendment in United States v. Rahimi. 137 It
reviewed a federal statute that “prohibits an individual subject
to a domestic violence restraining order from possessing a
firearm if that order includes a finding that he ‘represents a
136 Id. (cleaned up).
137 No. 22-915, 602 U.S. ___, slip op. (June 21, 2024).

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credible threat to the physical safety of an intimate partner,’ or
a child of the partner or individual.”138
In Rahimi, the government proposed two traditional types
of laws to show that “the new law is relevantly similar to laws
that our tradition is understood to permit.”139 Because those
old laws (1) imposed burdens like the new law’s burdens for
reasons like the new law’s reasons, (2) were widespread, and
(3) were old enough to help illuminate the Second
Amendment’s original meaning, the Court upheld the new law.
It held that the nation’s “tradition of firearm regulation allows
the Government to disarm individuals who present a credible
threat to the physical safety of others.” 140
In so doing, Rahimi “carefully buil[t] on Heller,
McDonald, and Bruen.” 141 It reiterated the history-and-
tradition test already well established under Heller, McDonald,
and Bruen, while also reaffirming their distinction between
arms in common use versus “‘dangerous and unusual
weapons.’”142 In addition, its multiple opinions elaborated on
the standard for using analogical reasoning to determine
whether a modern law falls within a historical tradition.
8. Takeaways from the Supreme Court’s Precedents
Where do all these cases leave us? For starters, Heller’s
four holdings remain undisturbed: There is an individual
(though not unlimited) right to possess and carry arms.
138 Id. at 1 (quoting 18 U.S.C. § 922(g)(8) (cleaned up)).
139 Id. at 23 (Kavanaugh, J., concurring) (cleaned up).
140 Id. at 16 (majority).
141 Id. at 23 (Kavanaugh, J., concurring).
142 Id. at 6 (majority) (quoting Heller, 554 U.S. at 627).

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Exceptions to that right depend on history and tradition. There
is no history and tradition of banning arms in common use for
lawful purposes. D.C. cannot categorically ban handguns
because they are in common use.
To Heller’s final and most specific holding, we can add
the most specific holdings of McDonald, Bruen, and Rahimi.
Like the federal government and federal enclaves, states too
cannot categorically ban handguns because they are in common
use for lawful purposes — McDonald.143 The government also
cannot impose an unusually restrictive licensing regime like
New York’s because it is inconsistent with the nation’s
historical tradition — Bruen.144 In contrast, the government
can temporarily disarm people who present a credible threat of
violence because that type of law is consistent with the nation’s
historical tradition — Rahimi.145
None of those holdings should cause unusual “difficulty”
for “judges on the ground.”146 For example, in cases about
banning arms in common use, Heller and its progeny require
no “mad scramble for historical records”147 because they have
“already done the work and provided the test that [we] must
143 McDonald, 561 U.S. at 749-50.
144 Bruen, 142 S. Ct. at 2156.
145 Rahimi, slip op. at 5.
146 Id. at 1 (Jackson, J., concurring); see also id. at 2 (Jackson, J.,
concurring) (“The message that lower courts are sending now in
Second Amendment cases could not be clearer. They say there is
little method to Bruen’s madness.”); id. (citing many lower-court
judges’ complaints about the Supreme Court’s jurisprudence).
147 Id. at 5 n.3 (Jackson, J., concurring).

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apply.”148 And when we fail to apply their rule, “the blame”
lies “with us, not with them.”149
As for gun laws other than complete bans on arms in
common use for lawful purposes (Heller), unusually restrictive
licensing regimes (Bruen), and temporary disarmaments of
specific people who credibly threaten violence (Rahimi), the
government can defend laws regulating conduct covered by the
Second Amendment’s plain text only by identifying an
appropriate analogue from our nation’s historical tradition.150
Three considerations must inform that “analogical reasoning
under the Second Amendment.”151
First, “[w]hy and how the regulation burdens the right are
central to this inquiry.” 152 The government must identify
traditional laws that had a similar justification and imposed a
similar burden when compared to the challenged modern law.
“[I]f earlier generations addressed the [same] societal problem,
but did so through materially different means, that . . . could be
evidence that a modern regulation is unconstitutional.”153
(Spoiler alert: This is a problem for the majority’s two
analogues.)
Second, to establish a historical tradition, the government
needs analogues that represent the “collective understanding of
Americans.”154 So outliers don’t count. That’s why Bruen
148 Smith, How Courts Have Defied Heller, at 10.
149 Rahimi, slip op. at 1 (Jackson, J., concurring).
150 See Bruen, 142 S. Ct. at 2133.
151 Id.; see also Rahimi, slip op. at 7-8.
152 Rahimi, slip op. at 7; see also Bruen, 142 S. Ct. at 2132-33.
153 Bruen, 142 S. Ct. at 2131.
154 Rahimi, slip op. at 11 (Kavanaugh, J., concurring).

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dismissed “three colonial regulations” and “a few late-19th-
century outlier jurisdictions.”155 And it’s why Heller “would
not stake” its “interpretation of the Second Amendment upon a
single law, in effect in a single city, that contradicts the
overwhelming weight of other evidence.”156 (Spoiler alert:
This is a problem for the majority’s state-law analogue.)
Third, “when it comes to interpreting the Constitution, not
all history is created equal.”157 The “Second Amendment
‘codified a pre-existing right’ belonging to the American
people, one that carries the same ‘scope’ today that it was
‘understood to have when the people adopted’ it.”158 So its
scope “is pegged to the public understanding of the right when
the Bill of Rights was adopted in 1791.”159
That means “the history that matters most is the history
surrounding the ratification of the text.”160 For the Second
Amendment, the Founding Era matters more than the half-
century that followed it, which matters more than the late-
nineteenth and early-twentieth centuries, which matter more
than the late-twentieth and twenty-first centuries, which do not
155 Bruen, 142 S. Ct. at 2142 (emphasis omitted); id. at 2156; see also
id. at 2153 (“while we recognize the support that postbellum Texas
provides for [the government’s] view, we will not give
disproportionate weight to a single state statute and a pair of state-
court decisions”); Bevis v. City of Naperville, Illinois, 85 F.4th 1175,
1218 (7th Cir. 2023) (Brennan, J., dissenting) (“three analogues were
not enough in Bruen”).
156 Heller, 554 U.S. at 632.
157 Bruen, 142 S. Ct. at 2136.
158 Rahimi, slip op. at 2 (Gorsuch, J., concurring) (quoting Heller,
554 U.S. at 592).
159 Bruen, 142 S. Ct. at 2137.
160 Rahimi, slip op. at 2 (Barrett, J., concurring).

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matter much at all. (Spoiler alert: This too is a problem for the
majority.)
To be sure, “post-ratification history” can “be important,”
especially when it’s close in time to the Founding, the
constitutional text is vague, the Founding-Era history is
inconclusive, the post-Founding tradition is well-established,
and judicial precedents give no guidance.161 Put differently,
post-ratification history matters when the only alternative is
policymaking from the bench.162 But “evidence of tradition
unmoored from original meaning is not binding law. And
scattered cases or regulations pulled from history may have
little bearing on the meaning of the text.”163
Heller is, as ever, instructive. There, the Founding-Era
history mattered the most. The Court said that if discussions
“took place 75 years after the ratification of the Second
Amendment, they do not provide as much insight into its
original meaning as earlier sources.”164 That’s why “Heller’s
interest in mid- to late-19th-century commentary was
secondary.” 165 Heller’s “19th-century evidence was treated as
161 Id. at 10-11 (Kavanaugh, J., concurring).
162 See id. at 10 (Kavanaugh, J., concurring) (“there can be little else
to guide a judge deciding a constitutional case in that situation, unless
the judge simply defaults to his or her own policy preferences”).
163 Id. at 2-3 (Barrett, J., concurring) (cleaned up); see also Bruen,
142 S. Ct. at 2137 (“to the extent later history contradicts what the
text says, the text controls”); id. (“‘post-ratification adoption or
acceptance of laws that are inconsistent with the original meaning of
the constitutional text obviously cannot overcome or alter that text’”
(quoting Heller II, 670 F.3d at 1274 n.6 (Kavanaugh, J.,
dissenting))).
164 Heller, 554 U.S. at 614.
165 Bruen, 142 S. Ct. at 2137.

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mere confirmation of what the Court thought had already been
established,” 166 and it refused to give that “postenactment
history more weight than it can rightly bear.”167
So to sum up the history-and-tradition test, a historical
analogue need not be a “dead ringer” or “historical twin.”168
But analogues are strongest when (1) they burden gun rights
for a similar reason and in a similar way as the challenged
modern law; and (2) they represent the nation’s collective
understanding; and (3) they were enacted in an instructive
historical period, preferably around the Second Amendment’s
ratification in 1791. In Rahimi, the government won when it
hit that trifecta. In Heller, McDonald, and Bruen, the
government lost when it could not.
III. D.C.’s Ban on Plus-Ten Magazines Is Unconstitutional
D.C.’s ban on commonly used plus-ten magazines
conflicts with Heller’s holding that the government cannot ban
an arm in common use for lawful purposes. That alone decides
this case.
In addition, D.C. has failed to show that its ban is
consistent with the nation’s historical tradition — even
166 Id. (cleaned up).
167 Id. at 2136; see also id. at 2131 (“after considering ‘founding-era
historical precedent,’ including ‘various restrictive laws in the
colonial period,’ and finding that none was analogous to the
District’s ban, Heller concluded that the handgun ban was
unconstitutional” (emphasis added) (quoting Heller, 554 U.S. at
631)); Duncan II, 19 F.4th at 1158 (Bumatay, J., dissenting)
(“Prohibition-era laws of Michigan, Rhode Island, and Ohio . . .
aren’t nearly old enough to be longstanding”).
168 Bruen, 142 S. Ct. at 2133 (emphasis omitted).

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assuming Heller left it an open question. That too is a sufficient
reason to hold that D.C.’s ban is unconstitutional. 169
A. Applying Heller’s Common-Use Test to D.C.’s Ban on
Plus-Ten Magazines
The majority presumes that plus-ten magazines are arms
in common use by law-abiding citizens for the lawful purpose
of self-defense.170 On that, we agree.171
169 When I say D.C.’s ban is unconstitutional, I mean it is
unconstitutional as applied to magazines that hold up to 17 rounds.
Those are the only magazines at issue in this appeal, which concerns
the plaintiffs’ as-applied challenge. See Majority Op. at 7 n.2. We
are not asked to decide whether there is a right to magazines that hold
more than 17 rounds. Cf. Heller II, 670 F.3d at 1261 (“There may
well be some capacity above which magazines are not in common
use but, if so, the record is devoid of evidence as to what that capacity
is; in any event, that capacity surely is not ten.”).
170 Majority Op. at 11.
171 The majority uses the formulation “in common use for self-
defense,” see, e.g., id. (emphasis added), whereas I use the
formulation “in common use for lawful purposes,” cf. Bianchi, slip
op. at 87-88 (Richardson, J., dissenting) (“the tradition of prohibiting
dangerous and unusual weapons . . . does not support a complete ban
on the possession of weapons that are commonly used for lawful
purposes” (emphasis added)); Friedman v. City of Highland Park,
Illinois, 784 F.3d 406, 415 (7th Cir. 2015) (Friedman I) (Manion, J.,
dissenting) (“The ‘common use’ test . . . asks whether a particular
weapon is commonly used by law-abiding citizens for lawful
purposes.” (emphasis added)). For today’s case, the difference
doesn’t matter because the majority presumes that plus-ten
magazines are in common use by law-abiding citizens for “self-
defense,” which is a “lawful purpose.”

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37
That should not be a close question. Americans have in
their hands and homes an estimated 100 million plus-ten
magazines.172 They likely account for about half of all
Because the distinction may matter in future cases, I offer a quick
note on why it seems to me that the “lawful purposes” formulation is
more faithful to the Supreme Court’s precedents.
The Supreme Court has often noted other lawful purposes for
keeping and bearing arms, in addition to self-defense. Heller, 554
U.S. at 599 (“preserving the militia was [not] the only reason
Americans valued the ancient right; most undoubtedly thought it
even more important for self-defense and hunting” (emphasis
added)); id. at 636-37 (Stevens, J., dissenting) (framing the question
in Heller as “[w]hether [the Second Amendment] . . . protects the
right to possess and use guns for [lawful] nonmilitary purposes like
hunting and personal self-defense”); see also id. at 620 (majority)
(noting that the Court had previously “described the right protected
by the Second Amendment as bearing arms for a lawful purpose”
(cleaned up)). Though the Court has also often mentioned self-
defense, that’s because self-defense is the primary “lawful purpose”
for which Americans keep and bear arms. See id. at 630 (self-defense
is handguns’ “core lawful purpose”); id. at 624 (using the phrase “for
lawful purposes like self-defense” (emphasis added)); McDonald,
561 U.S. at 780 (plurality) (stating that the “central holding in
Heller” was “that the Second Amendment protects a personal right
to keep and bear arms for lawful purposes, most notably for self-
defense within the home” (emphasis added)); cf. Bianchi, slip op. at
175-76 (Richardson, J., dissenting) (cautioning against a framework
that “allows judges to decide just how important they think certain
firearms are for self-defense and then to weigh th[at] finding against
the threat they believe those arms pose to the public at large”).
172 See Duncan II, 19 F.4th at 1155 (Bumatay, J., dissenting); see also
William English, 2021 National Firearms Survey: Updated Analysis
Including Types of Firearms Owned, SSRN, at 20, 24 (May 13,
2022), https://perma.cc/PXN2-T3XG (“English Report”) (estimating
that Americans have, over time, owned more than 500 million plus-
ten magazines, including 269 million for handguns).

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38
magazines in circulation, 173 and nearly half of gun owners have
owned them.174 These magazines “come standard” with many
of the nation’s most popular firearms, including “[m]illions of
semiautomatic pistols, the ‘quintessential self-defense weapon’
for the American people.”175
I could say more.176 But if plus-ten magazines are (1) half
of America’s magazines, (2) owned by half of America’s gun
owners, and (3) often standard on Americans’ preferred
weapon for self-defense, what else needs to be said? That is
(more than) enough to show common use for lawful purposes.
173 See Duncan II, 19 F.4th at 1155 (Bumatay, J., dissenting); id. at
1097 (majority) (“experts estimate that approximately half of all
privately owned magazines in the United States have a capacity
greater than ten rounds”).
174 See English Report at 1-2, 20.
175 Duncan II, 19 F.4th at 1155 (Bumatay, J., dissenting) (quoting
Heller, 554 U.S. at 629); see also Duncan I, 970 F.3d at 1142
(“several variants of the Glock pistol — dubbed ‘America’s gun’ due
to its popularity — come standard with a seventeen-round
magazine”); Kolbe v. Hogan, 849 F.3d 114, 129 (4th Cir. 2017)
(“Most pistols are manufactured with magazines holding ten to
seventeen rounds . . . .”), abrogated by Bruen, 142 S. Ct. 2111, 2125-
27 (2022); David B. Kopel, The History of Firearm Magazines and
Magazine Prohibitions, 78 Alb. L. Rev. 849, 874 (2015) (“It is
indisputable in the modern United States that magazines of up to
thirty rounds for rifles and up to twenty rounds for handguns are
standard equipment for many popular firearms.”).
176 Plus-ten magazines also have “a long historical lineage.” Duncan
II, 19 F.4th at 1140 (Bumatay, J., dissenting). “They enjoyed
widespread use throughout the nineteenth and twentieth centuries,”
with “no longstanding prohibitions against them.” Id. (Bumatay, J.,
dissenting).

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In the context of a complete ban on a category of arms,
“that is all that is needed for citizens to have a right under the
Second Amendment to keep such weapons.” 177 Heller held
that because handguns are “in common use,” D.C.’s “complete
prohibition of their use is invalid.” 178 For the same reason,
D.C.’s ban on plus-ten magazines is unconstitutional.179
177 Friedman II, 577 U.S. at 1042 (Thomas, J., dissenting from denial
of certiorari) (emphasis added).
178 Heller, 554 U.S. at 624, 629; see also supra Part II.B.3.
179 See, e.g., Duncan II, 19 F.4th at 1140 (Bumatay, J., dissenting)
(“The state bans . . . [plus-ten] magazines [that] are lawfully owned
by millions of people nationwide and come standard on the most
popular firearms sold today. . . . But the Constitution protects the
right of law-abiding citizens to keep and bear arms typically
possessed for lawful purposes.”); Duncan I, 970 F.3d at 1169
(“California’s near-categorical ban of [plus-ten magazines] . . .
criminalizes the possession of half of all magazines in America
today. It makes unlawful magazines that are commonly used in
handguns by law-abiding citizens for self-defense. And it
substantially burdens the core right of self-defense guaranteed to the
people under the Second Amendment.”); New Jersey Rifle & Pistol
Clubs, 910 F.3d at 126-27, 130 (Bibas, J., dissenting) (“I would
enjoin this Act until New Jersey provides real evidence to satisfy its
burden of proving the Act constitutional. . . . People commonly
possess large magazines to defend themselves and their families in
their homes. That is exactly why banning them burdens the core
Second Amendment right.”); cf. Bianchi, slip op. at 152-53
(Richardson, J., dissenting) (The “evidence shows that millions of
Americans have chosen to equip themselves with semiautomatic
rifles, like the AR-15, for various lawful purposes. So Appellees
have failed to prove that these weapons are ‘unusual’ such that they
can be constitutionally outlawed. Maryland’s ban therefore violates
the Second Amendment.”).

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40
In other words:
Major Premise (explained at length above):
Heller held that the government cannot ban arms in
common use for lawful purposes.
Minor Premise (undisputed by the majority):
Plus-ten magazines are arms in common use for
lawful purposes.
Conclusion:
The government cannot ban plus-ten magazines.180
180 Before discussing in the next section my disagreement with the
majority, I digress here to note two areas where the majority and I
share common ground.
First, I agree with the majority’s decision to presume that it doesn’t
matter whether plus-ten magazines “are rarely used to fire more than
a couple rounds in self-defense.” Majority Op. at 11. A handgun
may be “used” without firing it, and a magazine may be “used”
without dispensing a single round (let alone depleting its capacity).
See Heller, 554 U.S. at 629, 636 (recognizing that handguns are
commonly “used for self-defense” (emphasis added)); English
Report at 14 (noting that “in the vast majority of defensive gun uses
(81.9%), the gun was not fired”). What matters, again, is that
millions of law-abiding Americans have chosen to arm themselves
with plus-ten magazines to use for a lawful purpose. Id. at 26-33
(survey responses commenting on the utility of plus-ten magazines
in self-defense situations); id. at 23 (62.4% of 39 million plus-ten
magazine owners — about 24 million — own them for home
defense). In any event, Americans do often fire more than ten rounds
at the shooting range, and target practice is a perfectly lawful,
common use. See id.

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B. Regarding the Majority
To repeat, I read Heller and its progeny to have already
held that the government cannot ban an arm in common use for
lawful purposes. But I also respect the good faith with which
my fellow panel members have concluded otherwise. In their
view, the validity of every ban on arms in common use is its
own open question, so D.C. deserves the chance to show its ban
“is consistent with this Nation’s historical tradition of firearm
regulation.”181
Even if that is in fact an open question, D.C. has identified
no “historical tradition” of any ban on an arm in common use
for lawful purposes. Neither has the majority. Instead, the
Second, though the majority says I argue that “any restriction” of
arms in common use is unconstitutional, that is not my position. See
Majority Op. at 12 (“Hanson would have us stop here, as would our
dissenting colleague, arguing that, under Bruen, to find an arm is in
common use renders any restriction of that arm unconstitutional.”).
I agree with the majority that some regulations of arms in common
use are constitutional — including some regulations of plus-ten
magazines. But that’s because some regulations are not outright
bans. Regulations of arms in common use — other than outright
bans — are constitutional if they are “consistent with this Nation’s
historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2126.
Heller lists some regulations — other than outright bans — that are
likely consistent with our nation’s history and tradition of firearms
regulation: “prohibitions on carrying concealed” arms in common
use; prohibitions on the possession of arms in common use “by
felons and the mentally ill”; “forbidding the carrying of” arms in
common use “in sensitive places such as schools and government
buildings”; and “laws imposing conditions and qualifications on the
commercial sale of arms” in common use. Heller, 554 U.S. at 626-
27 & n.26.
181 Bruen, 142 S. Ct. at 2126.

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majority invents a regulatory category — “restrictions on . . .
weapons particularly capable of unprecedented lethality.”182
Then it says such restrictions are consistent with two historical
analogues.183
I agree with the majority that the history-and-tradition test
allows for historical analogues less specific than, say, bans on
plus-ten magazines. After all, “the Second Amendment
permits more than just those regulations identical to ones that
could be found in 1791.”184 But the history-and-tradition test
demands a level of generality more specific than the majority’s
preferred category of “restrictions on weapons particularly
capable of unprecedented lethality.”185
Heller never mentioned that category — 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.”186
Instead, Heller set the level of generality for bannable arms at
“dangerous and unusual” arms — i.e., arms not “in common
use” for lawful purposes.187 So did the Supreme Court’s
182 Majority Op. at 18.
183 See id. at 18-25.
184 See Rahimi, slip op. at 7.
185 See Majority Op. at 18; see also id. at 13 (considering “an
unbroken tradition of regulating weapons to protect communities”
(cleaned up) to be “the pinnacle of abstraction” and representative of
a “regulatory blank check”).
186 See Br. of Violence Policy Center et al. as Amici Curiae
Supporting Petitioners at 24, Heller, 554 U.S. 570 (No. 07-290),
2008 WL 136348; see also Smith, How Courts Have Defied Heller,
at 7-8.
187 Heller, 554 U.S. at 627 (emphasis added) (cleaned up).

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subsequent cases.188 They confirm that “the relative
dangerousness of a weapon is irrelevant when the weapon
belongs to a class of arms commonly used for lawful
purposes.”189
As for the two historical analogues proposed by the
majority, they do not show a historical tradition of laws like
D.C.’s ban of plus-ten magazines. The majority first points to
a “handful” of outlier state and territorial laws from the second
half of the nineteenth century that restricted the open carry of
Bowie knives.190 The majority’s second analogue — the
National Firearms Act of 1934 — regulated only “unusual”
weapons like fully automatic machine guns, not arms “in
common use” like the plus-ten magazines that D.C. has
banned. 191
1. Outlier State and Territory Bowie-Knife Regulation
(1871-1889)
In the 1870s and ‘80s, two states (Texas and Arkansas) and
a federal territory (Arizona) prohibited the open carry of Bowie
188 See supra Part II.B.4, 6-7.
189 Caetano, 577 U.S. at 418 (Alito, J., concurring in the judgment)
(emphasis added).
190 See Majority Op. at 19-20.
191 See id. at 22-24.

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knives.192 For the sake of argument, let’s suppose that Bowie
knives were arms in common use for lawful purposes.193
Even then, these three laws did not impose the “burden”
on arms that D.C.’s total ban imposes because none of these
laws banned Bowie knives from the home.194 Plus, two
expressly permitted keeping Bowie knives at one’s “place of
business,” and all of these laws allowed travelers to carry
Bowie knives.195 In contrast, D.C.’s plus-ten magazine ban
192 An Act to Regulate the Keeping and Bearing of Deadly Weapons,
1871 Tex. Gen. Laws 25, ch. 34, § 1 (prohibiting “any person” from
“carrying [a Bowie knife] on or about his person, saddle, or in his
saddle bags”); An Act to Preserve the Public Peace and Prevent
Crime, 1881 Ark. Acts 191, no. 96, § 1 (crime to “wear or carry”
Bowie knives “in any manner”); An Act Defining and Punishing
Certain Offenses Against the Public Peace, 1889 Ariz. Sess. Laws
30, no. 13, § 1 (no person may “carry [a Bowie knife] on or about his
person, saddle, or in his saddle bags”); see Majority Op. at 19-20
(citing these three laws as “ban[ning] the carrying, rather than only
the concealment, of Bowie knives”); An Act to Provide a Temporary
Government for the Territory of Arizona, Pub. L. No. 37-56, ch. 56,
§ 1, 12 Stat. 664, 665 (1863) (creating the “temporary” Arizona
territory government that enacted the Bowie-knife law).
193 But see Majority Op. at 20 (“those weapons . . . are usually
employed in private broils, and . . . are efficient only in the hands of
the robber and the assassin” (quoting Aymette v. State, 21 Tenn. 154,
158 (1840))).
194 Bruen, 142 S. Ct. at 2133.
195 See 1871 Tex. Gen. Laws 25, § 1 (“provided, that this section shall
not be so construed as to prohibit any person from keeping or bearing
arms on his or her own premises, or at his or her own place of
business, . . . nor to prohibit persons traveling in the State from
keeping or carrying arms with their baggage” (second and third
emphasis added)); 1881 Ark. Acts 191, § 1 (“Provided, further, That
nothing in this act be so construed as to prohibit any person from

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applies in the home and everywhere else. For that reason alone,
the three laws are not analogous to D.C.’s.
In addition, three laws passed nearly a century after the
Second Amendment’s ratification (plus a couple of state court
decisions)196 hardly constitute a “representative historical
analogue”197 that reflects the “collective understanding of
Americans.”198 Heller refused to “stake” its “interpretation of
the Second Amendment upon a single law, in effect in a single
city.”199 Bruen refused to “give disproportionate weight to a
single state statute” — or even to “three.”200
carrying any weapon when upon a journey, or upon his own
premises.” (second emphasis added)); 1889 Ariz. Sess. Laws 30, Act
No. 13, § 2 (“The preceding article shall not apply to . . . the carrying
of arms on ones [sic] own premises or place of business, nor to
persons traveling . . . .” (emphases added)).
196 See Majority Op. at 19-21.
197 Bruen, 142 S. Ct. at 2133 (emphasis omitted).
198 Rahimi, slip op. at 11 (Kavanaugh, J., concurring).
199 Heller, 554 U.S. at 632.
200 Bruen, 142 S. Ct. at 2153, 2156.
By the way, neither of the state court decisions quoted by the
majority addressed bans on Bowie knives. See Cockrum v. State, 24
Tex. 394, 401 (1859) (law enhancing the penalty for manslaughter
committed with Bowie knife); Aymette, 21 Tenn. at 156 (law
prohibiting concealed carry of Bowie knives). And in fact, both
courts conspicuously affirmed the right to possess Bowie knives. See
Cockrum, 24 Tex. at 403 (“The right to carry a bowie-knife for lawful
defense is secured, and must be admitted.”); Aymette, 21 Tenn. at
160 (noting that “citizens have the unqualified right to keep the
weapon,” while explaining that “the right to bear arms is not of that
unqualified character” (emphases original)); see also Bianchi, slip
op. at 140-41 (Richardson, J., dissenting) (Aymette and similar state
cases “determined whether the regulated weapon was in common use

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Three statutes from the late 1800s are not only too
little — they’re also too late. Recall that “Heller’s interest in
mid- to late-19th-century commentary was secondary.”201
Likewise, in Bruen, “post-Civil War discussions of the right”
did “not provide as much insight into its original meaning as
earlier sources” in part because they occurred “75 years after
the ratification of the Second Amendment.”202 So even if the
majority’s “handful” of states had gone further and completely
banned Bowie knives in the late 1800s, “scattered cases or
regulations pulled from history may have little bearing on the
meaning of the text” of the Second Amendment.203
for lawful purposes. If it was, then they held that the government
could regulate the possession or carry of that weapon, but that it
could not completely ban it. Yet if that weapon was not in common
use for lawful purposes, and if the weapon was particularly useful for
criminal activity, then the government could outlaw it.”).
201 Bruen, 142 S. Ct. at 2137.
202 Id. (cleaned up).
203 Rahimi, slip op. at 2-3 (Barrett, J., concurring).
Bruen left open the question of whether the right to keep and bear
arms, as applied against the states through the Fourteenth
Amendment, should be interpreted as it was understood in 1791,
when the Second Amendment was ratified, or in 1868, when the
Fourteenth Amendment was ratified. See 142 S. Ct. at 2138. I take
no position on that debate, or on mid- to late-19th-century
regulations’ relevance to analysis of modern laws enacted by a state,
rather than by the federal government or a federal enclave like D.C.
Here, because the Second Amendment applies directly to D.C., the
original meaning that controls is undoubtedly the original meaning
in 1791.

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2. The National Firearms Act
(1934)
As for the National Firearms Act of 1934, it regulated only
“unusual” weapons like fully automatic machine guns and
sawed-off shotguns, which were “not typically possessed by
law-abiding citizens for lawful purposes.”204 And to know that,
you don’t need to look beyond the United States Reports. The
Supreme Court “stated in Staples and again in Heller” that
“short-barreled shotguns and automatic ‘M-16 rifles and the
like’ are not in common use.”205
Therefore, even if the 1934 Act is representative of our
historical tradition of firearm regulation,206 it is not “relevantly
similar” to D.C.’s ban on plus-ten magazines.207 Unlike D.C.’s
ban, the 1934 Act did not regulate arms “in common use,” so it
did not “impose a comparable burden” on the right to keep and
bear arms.208 In fact, the 1934 Act might be affirmative
evidence against D.C. — Bruen said an old regulation “could
be evidence that a modern regulation is unconstitutional” if
204 Heller, 554 U.S. at 623, 625, 627 (emphasis added); see also
Heller II, 670 F.3d at 1287 (Kavanaugh, J., dissenting) (fully
automatic machine guns “were developed for the battlefield and were
never in widespread civilian use in the United States” (emphasis
added)).
205 Heller II, 670 F.3d at 1288 (Kavanaugh, J., dissenting) (emphasis
added) (quoting Heller, 554 U.S. at 627, and citing Staples, 511 U.S.
at 611-12).
206 See Heller, 554 U.S. at 624 (considering it “startling” to think
“that the National Firearms Act’s restrictions on machineguns . . .
might be unconstitutional”).
207 Bruen, 142 S. Ct. at 2132 (cleaned up).
208 Id. at 2133.

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“earlier generations addressed the [same] societal problem, but
did so through materially different means.”209
D.C. suggests that machine guns were in common use by
mobsters and outlaws in 1934.210 That could hardly matter
less.211 What matters is whether they were in common use “for
209 Id. at 2131; cf. Garland v. Cargill, No. 22-976, 602 U.S. __, slip
op. at 1 (June 14, 2024) (federal ban on machine guns does not cover
bump stocks, even though bump stocks enable a semiautomatic gun
to approach a rate of fire similar to a machine gun).
210 See Majority Op. at 22-23 (quoting then-Attorney General
Cummings’s estimate of “at least 500,000” criminals “who are
warring against society and who are carrying about with them or
have available at hand, weapons of the most deadly character,”
National Firearms Act: Hearing(s) on H.R. 9066 Before the Comm.
on Ways and Means, 73rd Cong. 45 (1934) (cleaned up)).
For two reasons, Cummings’ testimony is not best understood to
suggest (let alone prove) that 500,000 law-abiding citizens possessed
machine guns and sawed-off shotguns. First, he was talking about
criminals. Second, “weapons of the most deadly character” could be
anything from a switch blade to a Tommy gun. As for the latter, only
15,000 commercially available Tommy guns were produced; a hefty
price tag led to a “lack of demand” and “few sales.” Bruce N.
Canfield, The G.I. Thompson in World War II, Am. Rifleman (Feb.
20, 2019), https://perma.cc/UN9S-3UZE. So “the bulk of the
15,000 . . . Thompson submachine guns languished in the warehouse
with only a relatively small number trickling out periodically.” Id.;
see also Heller II, 670 F.3d at 1287 (Kavanaugh, J., dissenting) (“The
Thompson machine gun (commonly known as the ‘Tommy gun’)
entered commercial sale in the United States in the mid-1920s but
saw very limited civilian use outside of organized crime and law
enforcement.” (emphasis added)).
211 Friedman I, 784 F.3d at 416 (Manion, J., dissenting) (“it matters
not whether fifty or five thousand mob enforcers used a particular
weapon, the question is whether a critical mass of law-abiding
citizens did”).

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lawful purposes.”212 D.C. has not shown that fully automatic
machine guns were ever in common use by law-abiding
citizens, and I do not understand the majority to argue
otherwise.
In addition, although the Supreme Court has said Congress
could ban machine guns without violating the Second
Amendment, Congress did not actually do so in the 1934
Act.213 Instead, the Act merely imposed a registration
requirement, restricted transfers, and imposed special taxes.214
Then, about five decades later, Congress prohibited the
possession of machine guns made after 1986, while still
grandfathering in the possession and transfer of machine guns
made before then.215 So unlike D.C.’s magazine ban, the less
burdensome 1934 Act was not even a complete ban on a
category of arms.
* * *
Finally, a word on the majority’s “nuanced approach” to
“unprecedented societal concerns or dramatic technological
changes.”216 The phrase comes from dicta in Bruen — a
decision that did not involve “unprecedented societal concerns
or dramatic technological changes” and did not apply the
212 Heller, 554 U.S. at 624 (emphasis added); McDonald, 561 U.S. at
780 (plurality) (emphasis added).
213 See National Firearms Act, §§ 2, 3(a), 4, 5(a), (6), 10, 11, 48 Stat.
at 1237-38.
214 Id.; see also id. § 8(a) (requiring identification marks on restricted
firearms); id. § 9 (recordkeeping requirement for transfers).
215 See supra Part II.B.1; 18 U.S.C. § 922(o)(1) (making it “unlawful
for any person to transfer or possess a machinegun”); id.
§ 922(o)(2)(B) (grandfather provision).
216 Majority Op. at 26 (cleaned up); see id. at 25-30.

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“nuanced approach.”217 Heller, McDonald, and Rahimi didn’t
apply it either.
This single stray line of dicta from Bruen is the foundation
of the majority’s analysis — a slender reed compared to a
holding of Heller that the government cannot ban arms in
common use for lawful purposes, especially when Heller’s
distinction between common and uncommon arms was
reaffirmed again (McDonald) and again (Bruen) and again
(Rahimi). But even if “unprecedented societal concerns or
dramatic technological changes” can justify some limited
regulation of common arms, a law “may not be compatible with
the right if it [regulates] to an extent beyond what was done at
the founding.”218
Here, D.C. has not named a single Founding-Era law that
bans an arm in common use for lawful purposes. (The majority
does not say otherwise.) Nor has D.C. named a single such law
from the first hundred years of the nation’s independence.
(Again, the majority does not say otherwise.) And even to the
extent that later laws can be relevant, D.C. has identified no
“well-established and representative historical analogue” that
imposed a “burden” comparable to D.C.’s outright ban on an
arm in common use for lawful purposes.219
217 Bruen, 142 S. Ct. at 2132.
218 Rahimi, slip op. at 7; see also id. at 2 (Gorsuch, J., concurring)
(regardless of an analogue’s justification, “the government must
establish that, in at least some of its applications, the challenged law
‘imposes a comparable burden on the right of armed self-defense’ to
that imposed by a historically recognized regulation” (quoting
Bruen, 142 S. Ct. at 2133) (cleaned up)).
219 Bruen, 142 S. Ct. at 2133 (emphasis omitted).

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V. Conclusion
Mark Twain once told a story about an evening at church.
He said that at first the sermon was so inspiring that he planned
to put $400 into the collection plate: “I wanted to give that and
borrow more to give.”220 But then his opinion of the sermon
tapered off: “My enthusiasm went down, down, down — $100
at a time, till finally when the plate came round I stole 10 cents
out of it.”221
I agree with most of what the majority says in the first 18
pages of its clear, concise, and eloquent opinion.222 I agree that
plus-ten magazines are likely “‘Arms’ within the meaning of
the Second Amendment,”223 “in common use” for the lawful
purpose of “self-defense,”224 and covered by “the Second
Amendment’s plain text.” 225 And I agree that a ban on plus-
ten magazines is not analogous to regulations about the storage
of gunpowder; or to restrictions on the time, place, and manner
of carrying arms; or to state laws from the Prohibition Era
directed at machine guns. 226
But then I part ways with the majority in two respects.
220 See “Mark Twain Says Women Should Vote,” New York Times,
p.5 (Jan. 21, 1901).
221 Id.
222 I don’t mean to suggest that Twain’s experience is perfectly
analogous to mine. It’s no “dead ringer” or “historical twin.” Bruen,
142 S. Ct. at 2133 (emphasis omitted).
223 See Majority Op. at 9 (quoting U.S. Const. amend II).
224 Id. at 11.
225 Id. (cleaned up).
226 See id. at 15-18.

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First, the majority reads Heller to leave open the question
of whether the government can ever ban an arm in common use
for lawful purposes.227 In contrast, I read Heller to answer that
question. It held that “a complete prohibition of their use is
invalid.”228
Second, even assuming that the validity of those bans is an
open question, the majority gets the answer wrong. D.C. has
failed to “demonstrate that [its] regulation is consistent with
this Nation’s historical tradition of firearm regulation.”229
The majority’s contrary conclusion depends on two types
of regulations.230 But neither of them is analogous. The first
of them — a “handful” of laws enacted nearly a century after
the Second Amendment’s ratification in two outlier states and
a territory — did not cover arms kept at home or carried while
traveling; in addition, those laws are too little and too late to
establish a historical tradition.231 As for the second purported
analogue, it covered only “unusual” arms — not arms in
common use for lawful purposes.232 So neither demonstrates a
tradition of laws imposing a burden comparable to D.C.’s
complete ban on commonly possessed plus-ten magazines.
Because D.C.’s law violates the right to keep and bear
arms guaranteed by the Second Amendment, I would reverse
227 See Majority Op. at 12 (concluding that “Bruen . . . precludes th[e]
argument” that Heller prohibits bans on arms in common use for
lawful purposes, full stop).
228 Heller, 554 U.S. at 629; see also supra Part II.B.3.
229 Bruen, 142 S. Ct. at 2126.
230 See Majority Op. at 19-25.
231 See id. at 19-20.
232 See id. at 22-24.

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the district court’s decision and direct it to enter a permanent
injunction.233
I respectfully dissent.
233 If “our holding at this stage” — review of a denial or grant of a
preliminary injunction — “makes a certain outcome inevitable . . . ,
we have the power to dispose of it as may be just under the
circumstances, and should do so to obviate further and entirely
unnecessary proceedings below.” Wrenn, 864 F.3d at 667 (cleaned
up). Like the D.C. gun law in Wrenn, D.C.’s ban “merits invalidation
under Heller,” so it would “wast[e] judicial resources” to “remand[ ]
for the court to develop the record.” Id. (citing Moore v. Madigan,
702 F.3d 933, 942 (7th Cir. 2012) (reversing denials of preliminary
injunctions and remanding with instructions to enter declarations of
unconstitutionality and permanent injunctions)).

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