Dominic Bianchi, an individual v. Anthony G. Brown

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1255
DOMINIC BIANCHI, an individual and resident of Baltimore County; DAVID
SNOPE, an individual and resident of Baltimore County; MICAH SCHAEFER, an
individual and resident of Anne Arundel County; FIELD TRADERS LLC, A
resident of Anne Arundel County; FIREARMS POLICY COALITION, INC.;
SECOND AMENDMENT FOUNDATION; CITIZENS COMMITTEE FOR THE
RIGHT TO KEEP AND BEAR ARMS
Plaintiffs - Appellants
v.
ANTHONY G. BROWN, in his official capacity as Attorney General of Maryland;
COL. WOODROW W. JONES, III, in his official capacity as Secretary of State
Police of Maryland; R. JAY FISHER, in his official capacity as Sheriff of Baltimore
County, Maryland; EVERETT L. SESKER, in his official capacity as Sheriff of
Anne Arundel County, Maryland
Defendants - Appellees
-------------------------------------
JOHN CUTONILLI
Amicus Supporting Appellants
and
GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE; BRADY CENTER
TO PREVENT GUN VIOLENCE; MARCH FOR OUR LIVES; EVERYTOWN
FOR GUN SAFETY
Amici Supporting Appellees.

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Appeal from the United States District Court for the District of Maryland at Baltimore.
James K. Bredar, Senior District Judge. (1:20−cv−03495−JKB)
Argued: March 20, 2024 Decided: August 6, 2024
Before DIAZ, Chief Judge, and WILKINSON, NIEMEYER, KING, GREGORY, AGEE,
WYNN, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, RUSHING,
HEYTENS, BENJAMIN and BERNER, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge
Diaz, Judge King, Judge Wynn, Judge Thacker, Judge Harris, Judge Heytens, Judge
Benjamin, and Judge Berner joined. Chief Judge Diaz wrote a concurring opinion, in which
Judge King, Judge Wynn, Judge Thacker, Judge Benjamin, and Judge Berner joined. Judge
Gregory wrote an opinion concurring in the judgment. Judge Richardson wrote a dissenting
opinion, in which Judge Niemeyer, Judge Agee, Judge Quattlebaum, and Judge Rushing
joined.
ARGUED: Peter A. Patterson, COOPER & KIRK, PLLC, Washington, D.C., for
Appellants. Robert A. Scott, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Raymond M.
DiGuiseppe, THE DIGUISEPPE LAW FIRM, P.C., Southport, North Carolina; Adam
Kraut, FIREARMS POLICY COALITION, Sacramento, California; David H. Thompson,
Tiernan B. Kane, COOPER & KIRK, PLLC, Washington, D.C., for Appellants. Brian E.
Frosh, Attorney General, Ryan R. Dietrich, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, for Baltimore, Maryland, for Appellees.
John Cutonilli, Garret Park, Maryland, for Amicus John Cutonilli. Esther Sanchez-Gomez,
Leigh Rome, William T. Rome, GIFFORDS LAW CENTER TO PREVENT GUN
VIOLENCE, San Francisco, California, for Amicus Giffords Law Center to Prevent Gun
Violence. Douglas N. Letter, Shira Lauren Feldman, BRADY CENTER TO PREVENT
GUN VIOLENCE, Washington, D.C., for Amicus Brady Center to Prevent Gun Violence.
Ciara Wren Malone, MARCH FOR OUR LIVES, New York, New York, for Amicus
March for Our Lives. Eric B. Bruce, Jennifer Loeb, Washington, D.C., Aaron R. Marcu,
Brandt Henslee, Yulia Dernovsky, Daniel Hodgkinson, Susannah Benjamin, Taylor
Jachman, FRESHFIELDS BRUCKHAUS DERINGER US LLP, New York, New York,
for Amici Giffords Law Center to Prevent Gun Violence, Brady Center to Prevent Gun
Violence, and March for Our Lives. Janet Carter, William J. Taylor, Jr., Priyanka Gupta
Sen, EVERYTOWN LAW, New York, New York, for Amicus Everytown for Gun Safety.

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WILKINSON, Circuit Judge:
The elected representatives of the people of Maryland enacted the Firearms Safety
Act of 2013 in the wake of mass shootings across the country and a plague of gun violence
in the state. This case is about whether the Act’s general prohibition on the sale and
possession of certain military-style “assault weapons,” including the AR-15, the AK-47,
and the Barrett .50 caliber sniper rifle, is unconstitutional under the Second Amendment.
We considered this issue as an en banc court in Kolbe v. Hogan, 849 F.3d 114 (4th
Cir. 2017) (en banc), where we held that Maryland’s regulation of these assault weapons
is consistent with the Second Amendment. However, in New York State Rifle & Pistol
Ass’n v. Bruen, 597 U.S. 1 (2022), the Supreme Court clarified how courts are to resolve
Second Amendment challenges and rejected part of our approach in Kolbe.
With the respectful consideration and benefit of Bruen, we now uphold the judgment
below. The assault weapons at issue fall outside the ambit of protection offered by the
Second Amendment because, in essence, they are military-style weapons designed for
sustained combat operations that are ill-suited and disproportionate to the need for self-
defense. Moreover, the Maryland law fits comfortably within our nation’s tradition of
firearms regulation. It is but another example of a state regulating excessively dangerous
weapons once their incompatibility with a lawful and safe society becomes apparent, while
nonetheless preserving avenues for armed self-defense.
For these reasons, we decline to wield the Constitution to declare that military-style
armaments which have become primary instruments of mass killing and terrorist attacks in
the United States are beyond the reach of our nation’s democratic processes. In so holding,

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we offer no view on how a state should regulate firearms. Nor do we do anything to impose
Maryland’s regulations upon other states. We do hold, however, that Maryland was well
within its constitutional prerogative to legislate as it did. We therefore reject the challenges
of appellants and affirm the judgment of the district court.
Our friends in dissent would rule the Maryland statute unconstitutional. They would
go so far as to uphold a facial challenge to the enactment, meaning that there is no
conceivable weapon, no matter how dangerous, to which the Act’s proscriptions can
validly be applied. In so doing, they reject the centuries of common law that infused
accommodation in the rights our founding generation recognized. And in creating a near
absolute Second Amendment right in a near vacuum, the dissent strikes a profound blow
to the basic obligation of government to ensure the safety of the governed. Arms upon arms
would be permitted in what can only be described as a stampede toward the disablement
of our democracy in these most dangerous of times. All this we shall explain.
The Supreme Court remanded this case for reconsideration in light of Bruen, a task
which we shall, with great respect, perform. We conclude that Bruen did not mandate an
abandonment of our faith in self-governance, nor did it leave the balance struck throughout
our history of firearms regulation behind.
I.
Maryland law prohibits any person in the state from selling, purchasing, receiving,
transporting, transferring, or possessing an “assault weapon,” subject to limited exceptions.
Md. Code, Crim. Law § 4-303. A violator of this statute faces up to three years’
imprisonment. Id. § 4-306. Maryland law enforcement officers are authorized to seize and

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dispose of weapons sold, purchased, received, transported, transferred, or possessed in
violation of the law. Id. § 4-304.
The statute defines “assault weapon” as “(1) an assault long gun; (2) an assault
pistol; or (3) a copycat weapon.” Id. § 4-301(d). The term “assault long gun,” in turn,
encompasses more than forty-five enumerated long guns “or their copies, regardless of
which company produced and manufactured” the firearm. Id. § 4-301(b); see Md. Code,
Pub. Safety § 5-101(r)(2). These proscribed guns include an assortment of military-style
rifles and shotguns capable of semiautomatic fire, such as the AK-47, almost all models of
the AR-15, the SPAS-12, and the Barrett .50 caliber sniper rifle. See Md. Code, Pub. Safety
§ 5-101(r)(2). The term “assault pistol” encompasses more than fifteen enumerated
firearms and their copies. These include the TEC-9 and semiautomatic variants of the
MAC-10, MP5K, UZI, and other military-style submachine guns. Md. Code, Crim. Law
§ 4-301(c).
“Copycat weapon” is defined as a firearm that is not an assault long gun or assault
pistol yet is covered by at least one of the following six categories:
(i) a semiautomatic centerfire rifle that can accept a detachable magazine
and has any two of the following:
1. a folding stock;
2. a grenade launcher or flare launcher; or
3. a flash suppressor;
(ii) a semiautomatic centerfire rifle that has a fixed magazine with the
capacity to accept more than 10 rounds;

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(iii) a semiautomatic centerfire rifle that has an overall length of less than 29
inches;
(iv) a semiautomatic pistol with a fixed magazine that can accept more than
10 rounds;
(v) a semiautomatic shotgun that has a folding stock; or
(vi) a shotgun with a revolving cylinder.
Id. § 4-301(h).
Appellants are three Maryland residents who allege that they are legally eligible to
possess and acquire firearms, three nonprofit gun rights organizations to which the
residents belong, and a licensed firearms dealer based in Maryland. On November 13,
2020, appellants filed a complaint under 42 U.S.C. § 1983 in the U.S. District Court for the
District of Maryland against the then-Attorney General of Maryland and other state law
enforcement officials. Appellants contended that these officials’ enforcement of
Maryland’s assault weapons regulations was unconstitutional under the Second
Amendment’s right to keep and bear arms as applied to the states through the Fourteenth
Amendment. They sought a declaratory judgment that the regulations prevented them from
exercising their right to keep and bear arms, as well as an injunction to prohibit appellees
from enforcing the statute.
In their complaint, however, appellants “acknowledge[d] that the result they seek is
contrary to Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017).” J.A. 6. In Kolbe, we upheld
against a constitutional challenge the very same Maryland statute at issue here insofar as it
applied to “assault long guns and those copycat weapons that are rifles and shotguns.”
Kolbe, 849 F.3d at 122 n.2. Our en banc opinion rested on two distinct grounds. We first

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concluded that the assault weapons at issue were “not constitutionally protected arms.” Id.
at 130 (emphasis omitted). We then found that, even assuming the Second Amendment
reached such weapons, the Maryland regulations survived intermediate scrutiny. Id.
In the instant case, appellees answered the complaint by citing Kolbe and arguing
that the suit should be dismissed for failure to state a claim. The district court agreed and
dismissed the case on March 3, 2021. It noted that Kolbe controlled and agreed with
appellants’ concession that the court “ha[d] no discretion but to dismiss [their] complaint.”
J.A. 42. Appellants timely appealed. Their brief focused on the statute’s regulation of
semiautomatic assault rifles, as opposed to the parts of the statute targeting semiautomatic
assault pistols and shotguns.
We affirmed the district court in a per curiam opinion on September 14, 2021. We
too noted that appellants had conceded their argument was “squarely foreclosed” by Kolbe,
and we observed that a panel of our court is “not authorized to reconsider an en banc
holding.” Bianchi v. Frosh, 858 F. App’x 645, 646 (4th Cir. 2021) (internal quotation
marks omitted).
Appellants petitioned the Supreme Court for writ of certiorari on December 16,
2021, arguing that our en banc decision in Kolbe should be overturned. See Petition for
Writ of Certiorari, Bianchi v. Frosh, 142 S. Ct. 2898 (2022) (mem.) (No. 21-902).
Appellees responded at the Court’s request. See id.
On June 23, 2022, before ruling on the cert petition, the Supreme Court decided
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). In Bruen, the Court
disavowed as “one step too many” the two-step framework that our court used in Kolbe

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and that other federal circuit courts had nearly universally employed to assess Second
Amendment claims in the wake of District of Columbia v. Heller, 554 U.S. 570 (2008).
Bruen, 597 U.S. at 19. Although “[s]tep one of the predominant framework”—which was
“rooted in the Second Amendment’s text, as informed by history”—was “broadly
consistent with Heller,” the Court emphasized that the “means-end scrutiny” at the second
step was improper. Id. Because “the Second Amendment . . . codified a pre-existing right,”
courts were not to engage in interest balancing to determine whether a challenged
regulation was constitutionally permissible. Id. at 20 (quoting Heller, 554 U.S. at 592).
Instead, we were tasked with discerning the historical scope of the right and parsing
whether the challenged regulation was consistent with it. Id. at 22–24.
A week after Bruen was decided, the Supreme Court granted appellants’ petition for
writ of certiorari, vacated the judgment, and remanded the case for further consideration in
light of Bruen. See Bianchi v. Frosh, 142 S. Ct. at 2898–99. We ordered the parties to
provide supplemental briefing, and a panel of this court heard oral argument on December
6, 2022. Before an opinion issued, however, our court voted to rehear the case en banc. We
received additional supplemental briefing from the parties, and heard oral argument as a
full court on March 20, 2024. Now, with the benefit of Bruen, we can proceed to decide
this case. 1
1 We thank our friend Judge Richardson for his dissenting opinion. The procedural
history to which he alludes, see Dissenting Op. at 87 n.2, reflects nothing more than the
good-faith efforts of every member of our court to reach a well-reasoned decision in a
challenging set of cases.

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II.
The Second Amendment instructs, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. This single sentence provides us with a lofty command,
but little concrete guidance. In the past two decades, the Supreme Court has stepped in to
provide this guidance, offering a methodological framework by which to structure our
inquiry.
The development of this framework began with District of Columbia v. Heller, 554
U.S. 570 (2008). In Heller, the Supreme Court held that the Second Amendment safeguards
the right to possess a firearm within one’s home for self-defense. Id. at 635. To reach that
conclusion, the Court distilled the Second Amendment into its constituent parts, engaged
in linguistic and historical analysis to interpret the original meaning of each, and
determined that the Amendment “guarantee[s] the individual right to possess and carry
weapons in case of confrontation.” Id. at 592. The Court recognized that the Amendment
“codified a pre-existing right” to keep and bear arms, id., which, at the time of the nation’s
founding, was understood by Americans to be a “right of self-preservation,” id. at 595
(quoting 2 Blackstone’s Commentaries: With Notes of Reference 145 n.42 (St. George
Tucker ed. 1803) [hereinafter Tucker’s Blackstone]). The Court therefore found that “self-
defense” is “the central component of the right.” Id. at 599.
In rejecting the “argument, bordering on the frivolous, that only those arms in
existence in the 18th century are protected by the Second Amendment,” the Court in Heller
stated that “the Second Amendment extends, prima facie, to all instruments that constitute

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bearable arms, even those that were not in existence at the time of the founding.” Id. at 582.
The Court clarified this statement later in the opinion, where it emphasized that “[l]ike
most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626.
There, the Court explained that the Second Amendment does not guarantee “a right
to keep and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose.” Id. Indeed, the Court found it would be “startling” to read the Second
Amendment such that “the National Firearms Act’s restrictions on machineguns . . . might
be unconstitutional.” Id. at 624. Thus, the Court acknowledged that it was not in serious
dispute that “weapons that are most useful in military service—M-16 rifles and the like—
may be banned.” Id. at 627.
The Court recognized an additional limitation on the types of arms that the Second
Amendment protects. It interpreted the holding of a previous Second Amendment decision,
United States v. Miller, 307 U.S. 174 (1939), to stand for the proposition “that the Second
Amendment does not protect those weapons not typically possessed by law-abiding
citizens for lawful purposes, such as short-barreled shotguns.” Heller, 554 U.S. at 625. In
other words, “dangerous and unusual weapons” that are not “in common use” can be
prohibited. Id. at 627.
In the wake of Heller’s recognition of the individual right to keep and bear arms and
its limitations, circuit courts across the nation—including ours—interpreted Heller to
permit a means-end approach for assessing the constitutionality of firearms regulations.
See, e.g., Kolbe, 849 F.3d at 133; N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242,
254 & n.49 (2d Cir. 2015); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d

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1318, 1322 (11th Cir. 2015). In evaluating such regulations against Second Amendment
challenges, a court would first inquire “whether the challenged law imposes a burden on
conduct falling within the scope of the Second Amendment’s guarantee.” Kolbe, 849 F.3d
at 133. If the challenged law did so, the court would then apply either intermediate or strict
scrutiny, “depend[ing] on the nature of the conduct being regulated and the degree to which
the challenged law burdens the right.” Id.
As this approach percolated in the lower courts, the Supreme Court’s subsequent
Second Amendment opinions did little to alter the status quo. In McDonald v. City of
Chicago, the Court held that “the Second Amendment right is fully applicable to the
States,” but otherwise endorsed Heller as is. 561 U.S. 742, 791 (2010). And in Caetano v.
Massachusetts, a per curiam Court reaffirmed two aspects of Heller: that “the Second
Amendment extends . . . to . . . arms . . . that were not in existence at the time of the
founding”; and that the Second Amendment may protect arms beyond “weapons useful in
warfare.” 577 U.S. 411, 412 (2016) (internal quotation marks omitted) (quoting Heller,
554 U.S. at 582).
Then came Bruen. Rejecting the means-end approach of the lower courts, the Bruen
Court set out a two-step methodology oriented towards text, history, and tradition. Under
this approach, a court first looks to the text of the Second Amendment to see if it
encompasses the desired conduct at issue. 597 U.S. at 24. If the text does not extend to the
desired conduct, that conduct falls outside the ambit of the Second Amendment, and the
government may regulate it. But if a court finds that the text does encapsulate the desired
conduct, the analysis moves to the second step, where the burden shifts to the government

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to “justify its regulation by demonstrating that it is consistent with the Nation’s historical
tradition of firearm regulation.” Id. Only if such consistency is shown can a court conclude
that the regulation is constitutionally permissible. Id.
The Court in Bruen found that the New York regulation at issue, which required an
individual to “demonstrate a special need for self-protection distinguishable from that of
the general community” before he could carry a handgun outside of his home, did not
satisfy this history-and-tradition test. Id. at 70. The Court first determined that the
plaintiffs’ “proposed course of conduct—carrying handguns publicly for self-defense”
readily fell within the plain text of the Second Amendment. Id. at 32. Thus, the burden
shifted to New York to show that its regulation was “consistent with this Nation’s historical
tradition of firearm regulation.” Id. at 33–34.
After examining multiple historical regulations on the public carry of weapons, the
Bruen Court determined that none of them was sufficiently analogous to the regulation at
issue. See id. at 38–70. Specifically, the Court held that the New York regulation was
unconstitutional because, “[a]part from a few late-19th-century outlier jurisdictions,
American governments simply have not broadly prohibited the public carry of commonly
used firearms for personal defense,” nor have these governments “required law-abiding,
responsible citizens to demonstrate a special need . . . in order to carry arms in public.” Id.
at 70 (internal quotation marks omitted).
In so holding, the Bruen Court was clear that it was “apply[ing]” the “test that [it]
set forth in Heller.” Id. at 26. It reiterated that “the right secured by the Second Amendment
is not unlimited,” and, as such, it is “not a right to keep and carry any weapon whatsoever

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in any manner whatsoever and for whatever purpose.” Id. at 21 (quoting Heller, 554 U.S.
at 626). Justice Alito further elaborated on this point in his concurrence, explaining that the
majority’s “holding decides nothing . . . about the kinds of weapons that people may
possess. Nor have we disturbed anything that we said in Heller or McDonald . . . about
restrictions that may be imposed on the possession or carrying of guns.” Id. at 72 (Alito,
J., concurring).
III.
With this background in mind, we proceed to our analysis of the assault weapons
regulations at issue. We hold that the covered firearms are not within the scope of the
constitutional right to keep and bear arms for self-defense, and thus Maryland’s regulation
of them can peaceably coexist with the Second Amendment. Moreover, even if the text of
the Second Amendment were read to encompass the covered firearms, the statutory
provisions at issue would nonetheless be constitutional. Our nation has a strong tradition
of regulating excessively dangerous weapons once it becomes clear that they are exacting
an inordinate toll on public safety and societal wellbeing.
This conclusion that the Maryland regulation is consistent with the Constitution is
not some sort of edict to the rest of the states, obligating them to follow suit. States may
take a variety of approaches to address the nation’s mass shooting crisis beyond the
regulation of firearms, such as expanding mental health services or bolstering law
enforcement’s capacity to respond. We make no comment on the effectiveness of these or
any other measures. We simply recognize that Maryland acted well within the scope of its
own police powers in responding to the demands of its own citizens. Nothing in our opinion

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foists the values of Maryland upon, say, South Carolina, or those of South Carolina upon
Maryland. We choose to honor the worthy virtues of federalism and democracy, not to
stifle them. To do otherwise would unduly impede the workings of legislative bodies across
our country as they struggle to meet the challenges of today and tomorrow.
A.
Pursuant to Bruen, we begin by asking whether the “plain text” of the Second
Amendment guarantees the individual right to possess the assault weapons covered by the
Maryland statute. 597 U.S. at 24. At first blush, it may appear that these assault weapons
fit comfortably within the term “arms” as used in the Second Amendment.
We know, however, that text cannot be read in a vacuum. See Biden v. Nebraska,
600 U.S. 477, 511 (2023) (Barrett, J., concurring) (“To strip a word from its context is to
strip that word of its meaning.”). Heller and Bruen confirmed the importance of reading
the Amendment in context by repeatedly emphasizing that “it has always been widely
understood that the Second Amendment . . . codified a pre-existing right.” Bruen, 597 U.S.
at 20 (quoting Heller, 554 U.S. at 592); see also United States v. Price, No. 22-4609, slip
op. at 8–12 (4th Cir. Aug. 6, 2024) (majority opinion). In other words, the Second
Amendment codified “the right to keep and bear arms”: a specific entitlement with a
particular meaning in the ratifying public’s consciousness, with baked-in prerogatives and
qualifications alike. See Bruen, 597 U.S. at 21 (“[L]ike most rights, the right secured by
the Second Amendment is not unlimited.” (quoting Heller, 554 U.S. at 626)).
This understanding of the text of the Second Amendment is consistent with the way
we read other constitutional provisions. Take the First Amendment. See id. at 24–25

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(analogizing the Court’s Second Amendment framework to “how we protect other
constitutional rights” like “the freedom of speech in the First Amendment”). That provision
establishes that “Congress shall make no law . . . abridging the freedom of speech.” U.S.
Const. amend. I. Reading the text devoid of its historical context, one might conclude that
the Constitution prohibits governmental restrictions on libel, incitement, true threats,
fighting words, or falsely shouting fire in a crowded theater. Such activity is, after all,
“speech.” But effective constitutional interpretation requires a recognition that the First
Amendment was enacted against a backdrop of laws and societal understandings that
circumscribed these types of communications because they did not advance the underlying
purposes that the right to free speech was codified to protect. See United States v. Rahimi,
144 S. Ct. 1889, 1911–12 (2024) (Kavanaugh, J., concurring); Heller, 554 U.S. at 595
(“[W]e do not read the First Amendment to protect the right of citizens to speak for any
purpose.”); Bruen, 597 U.S. at 15 (same) (citing U.S. Const. amend. I). Thus, inherent in
the Speech Clause is the limitation that certain types of activity that fall within a literal
reading of the word “speech” are not protected by the free speech right enshrined in the
First Amendment.
The upshot is that the text of the Second Amendment, like the text of other
constitutional provisions, must be interpreted against its historical and legal backdrop. See
Bruen, 597 U.S. at 25 (endorsing “reliance on history to inform the meaning of
constitutional text—especially text meant to codify a pre-existing right”). What we must
do under Bruen, then, is assess the historical scope of the right to keep and bear arms to
determine whether the text of the Second Amendment encompasses the right to possess the

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assault weapons at issue. See Price, No. 22-4609, slip op. at 12–13 (majority opinion)
(“[W]e can only properly apply step one of the Bruen framework by looking to the
historical scope of the Second Amendment right.”).
B.
This was the question we earlier faced as an en banc court in Kolbe. Our primary
holding in that case was that the assault weapons regulated by the statute were not within
the scope of the Second Amendment. 849 F.3d at 136. Specifically, we resolved the case
by finding that the covered weapons were “‘like’ ‘M-16 rifles’, i.e., ‘weapons that are most
useful in military service,’ and thus outside the ambit of the Second Amendment.” Id.
(quoting Heller, 554 U.S. at 627). It was only after “we affirm[ed] the district court’s award
of summary judgment in favor of the State” on those grounds that we turned to finding,
“[i]n the alternative,” that the assault weapons regulations survived intermediate scrutiny.
Id. at 137–38.
It is true that Kolbe was decided before Bruen. But contrary to appellants’ claims,
Bruen did not abrogate Kolbe’s entire holding. While the Court in Bruen held that the
means-end balancing we conducted in our secondary, alternative analysis was “one step
too many,” it did not disturb our principal holding that the covered assault weapons were
outside the ambit of the individual right to keep and bear arms. Bruen, 597 U.S. at 19. The
Court was careful to note that only “the Courts of Appeals’ second step” was “inconsistent
with Heller’s historical approach and its rejection of means-end scrutiny.” Id. at 24. On the
other hand, when it came to our primary approach, the Bruen Court did not reject this type
of analysis, finding that it was “broadly consistent with Heller.” Id. at 19; see also Hanson

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v. District of Columbia, 671 F. Supp. 3d 1, 8 (D.D.C. 2023) (“Bruen did not disturb the
analysis Courts of Appeals conducted under the first step of their framework.”). We
therefore respectfully reaffirm the conclusion we reached in Kolbe that the covered
weapons “are not constitutionally protected arms.” 849 F.3d at 130 (emphasis omitted).
C.
The validity of this conclusion becomes clear when viewed in light of the purpose
of the individual right to keep and bear arms. Heller established that “the central
component” of the individual right codified by the Second Amendment was “self-defense.”
554 U.S. at 599; see also Bruen, 597 U.S. at 32; McDonald, 561 U.S. at 767. The common-
law right to self-defense, in turn, was understood by the founding generation to mean the
right of “a citizen to ‘repel force by force’ when ‘the intervention of society in his behalf,
may be too late to prevent an injury.’” Heller, 554 U.S. at 595 (quoting 2 Tucker’s
Blackstone 145) (internal alteration omitted). The pre-existing right codified by the Second
Amendment is thus about amplifying the power of individual citizens to project force
greater than they can muster with their own bodies so that they may protect themselves
when government cannot.
Limitations on this right to self-defense have been recognized in common law since
before our nation’s founding. One involves the necessity of imminence. A citizen cannot
launch a preemptive assault against another when he faces solely the possibility of some
threat hours or days away, or when he is seeking revenge for a harm already wrought by
another. See 4 William Blackstone, Commentaries of the Laws of England 184 (1769)
[hereinafter Blackstone] (“This right of natural defence does not imply a right of attacking:

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for, instead of attacking one another for injuries past or impending, men need only have
recourse to the proper tribunals of justice.”). Rather, force may only be used in self-defense
when reasonably necessary. See id. (stating “the right of preventive defence” may only be
exercised “when certain and immediate suffering would be the consequence of waiting for
the assistance of the law”). A second limitation circumscribes who can be the object of
force used in self-defense. A citizen generally cannot use force against an innocent
bystander to protect himself from an assailant, such as by turning the bystander into a
human shield. See id. at 30 “([T]hough a man be violently assaulted, and hath no other
possible means of escaping death, but by killing an innocent person; this fear and force
shall not acquit him of murder; for he ought rather to die himself, than escape by the murder
of an innocent.”). Yet another limitation is on the amount of force that may be used. Deadly
force, for example, generally may not be used except against a person who poses an
impending threat of death or serious bodily harm. See id. at 185 (“The party assaulted must
therefore flee . . . as far as the fierceness of the assault will permit him: for it may be so
fierce as not to allow him to yield a step, without manifest danger of his life, or enormous
bodily harm; and then in his defence he may kill his assailant instantly.”).
The above limitations and qualifications do not undermine the importance of self-
defense when one’s person is imperiled. And the exact scope of the self-defense right has
ebbed and flowed over time and across jurisdictions. Compare id. (requiring where
possible a defender flee before using deadly force), with Tex. Penal Code § 9.31
(permitting a defender to stand his ground). But meaningful limits on the right have always
existed. Our legal tradition has never seriously contemplated that a citizen may employ

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force against another whenever he chooses upon mere speculation that such person poses
a prospective threat.
As these limitations on the right to self-defense demonstrate, there are societal
interests that can prevail over the right to protect oneself with force. The imminence
requirement, for example, ensures that the justice system, not the individual, is the
preferred user of force to restrain unlawful action when that system has the time and
capacity to act. See 4 Blackstone 184. And restrictions on how much force may be
employed, and against whom force may be used, clarify that it is not just the rights to life
and liberty of the defender that matter, but also those of other members of society. Else,
how could we have any society at all?
These limitations inform the historical backdrop of the right ultimately enshrined in
our Constitution: to keep and bear arms for the purpose of self-defense. Just as the right to
self-defense had limitations at the time of the founding, so too did the right to keep and
bear arms that enabled it. As the Supreme Court recognized in Heller, the Second
Amendment “is the very product of an interest balancing by the people.” 554 U.S. at 635.
In crafting the Amendment, the Framers aimed to safeguard the right to individual self-
preservation while recognizing appropriate limitations—including those already inherent
in the common-law right to self-defense—that permitted the maintenance of an amicable
and orderly society. Thus, courts are “not [to] read the Second Amendment to protect the
right of citizens to carry arms for any sort of confrontation.” Id. at 595.
One qualification recognized by Heller is on who can keep and bear arms: there are
“longstanding prohibitions on the possession of firearms by felons and the mentally ill.”

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Id. at 626. While these individuals maintain a right to self-preservation, society has
concluded that the danger that they will misuse their armament-amplified power is too
great to permit possession. See Rahimi, 144 S. Ct. at 1896–97; Kanter v. Barr, 919 F.3d
437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (“History is consistent with common sense:
it demonstrates that legislatures have the power to prohibit dangerous people from
possessing guns.”). Another limitation involves where arms can be carried: “laws
forbidding the carrying of firearms in sensitive places such as schools and government
buildings” are permissible. Heller, 554 U.S. at 626; accord Bruen, 597 U.S. at 30. Again,
citizens in these places have no less of a right to protect themselves. But our society has
deemed that giving people the capacity to use large amounts of force at a moment’s notice
in a sensitive place is not worth the danger that they will unlawfully deploy such force
against innocent civilians or public figures there. These limitations, ultimately, reflect a
careful balancing of interests between individual self-defense and public protection from
excessive danger that existed within the meaning of the phrase “the right to keep and bear
arms” when the Second Amendment was ratified.
For our purposes, the most relevant limitation that emerged from this consideration
of individual and societal interests is upon what arms may be kept and carried. As
recognized in Heller, “the Second Amendment right . . . extends only to certain types of
weapons”; it is “not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” 554 U.S. at 623, 626. Arms typically used by
average citizens for self-defense are generally within the ambit of the Second Amendment,
presumably because these arms had proven over time to effectively amplify an individual’s

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power to protect himself without empowering him to singlehandedly reign terror upon a
community. See id. at 624–25. But other weapons—variously referred to as “dangerous or
unusual,” e.g., 4 Blackstone 148, or “dangerous and unusual,” e.g., Heller, 554 U.S. at 627;
State v. Langford, 10 N.C. 381, 383 (1824)—could be banned without infringing upon the
right to bear arms, see Heller, 554 U.S. at 627; Bruen, 597 U.S. at 47; 4 Blackstone 148–
49; Langford, 10 N.C. at 383–84. Such excessively dangerous arms were not reasonably
related or proportional to the end of self-defense—but rather were better suited for
offensive criminal or military purposes—and were thus understood to fall outside the reach
of the right. See Heller, 554 U.S. at 627; Nat’l Ass’n for Gun Rts. v. Lamont, 685 F. Supp.
3d 63, 102–03 (D. Conn. 2023).
This dichotomy between these two types of arms is reflected in the concrete
examples of exempted arms that the Supreme Court offered us in Heller. A corollary to
“the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’”
554 U.S. at 627, is that “the Second Amendment does not protect those weapons not
typically possessed by law-abiding citizens for lawful purposes, such as short-barreled
shotguns,” id. at 625. Further, the Court recognized that “weapons that are most useful in
military service,” such as “M-16 rifles and the like,” can be “banned.” Id. at 627. The Heller
Court placed such weapons of crime and war in explicit contradistinction to the handgun,
“the quintessential self-defense weapon,” which it emphasized was squarely within the
ambit of the Second Amendment. Id. at 629.
What brings all the weapons beyond the scope of the Second Amendment together,
and what separates them from the handgun, is their ability to inflict damage on a scale or

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in a manner disproportionate to the end of personal protection. As such, they are weapons
most suitable for criminal or military use. For instance, Congress began regulating sawed-
off shotguns and short-barreled rifles after they became infamously associated with
“notorious Prohibition-era gangsters like Bonnie Parker and Clyde Barrow.” Ocean State
Tactical, LLC v. Rhode Island, 95 F.4th 38, 47 (1st Cir. 2024). These firearms “are more
easily concealable than long-barreled rifles but have more destructive power than
traditional handguns,” making them particularly desirable to malefactors and crooks. U.S.
Dep’t of Just., Justice Department Announces New Rule to Address Stabilizing Braces,
Accessories Used to Convert Pistols into Short-Barreled Rifles (Jan. 13, 2023); see also
Carson v. State, 247 S.E.2d 68, 73 (Ga. 1978) (upholding ban on sawed-off shotguns and
noting they “are of a size such as can easily be concealed and which are adapted to and
commonly used for criminal purposes”); State v. LaChapelle, 451 N.W.2d 689, 691 (Neb.
1990) (holding states may regulate sawed-off shotguns as “a weapon which is used almost
exclusively for a criminal purpose”). And the M16 was adopted by the U.S. Army as the
standard-issue infantry rifle “due to its phenomenal lethality and reliability, as well as its
increased ability to penetrate helmets and body armor.” Lamont, 685 F. Supp. 3d at 101
(internal quotation marks omitted); see also Kolbe, 849 F.3d at 124.
We also recognize that the Supreme Court, in the handful of Second Amendment
cases that it has decided, has not yet had the opportunity to clarify the full array of
weaponry that falls outside the ambit of the Second Amendment. For instance, consider
arms that disable an adversary over time, such as those that release slow-acting poison. An
umbrella gun that fires a ricin-laced pellet, while a bearable arm, is utterly ineffective at

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countering imminent threats for which the right to self-defense exists because it takes hours
for ricin to have a debilitating effect. See Ricin and The Umbrella Murder, CNN (Oct. 23,
2003); Ctrs. for Disease Control and Prevention, Questions and Answers About Ricin (Apr.
4, 2018). Additionally, some bearable arms deliver force so excessive for self-defense that
no reasonable person could posit that the Constitution guarantees civilian access to them.
See, e.g., Bevis v. City of Naperville, 85 F.4th 1175, 1198 (7th Cir. 2023) (“Everyone can
also agree, we hope, that a nuclear weapon such as the . . . 51-pound W54 warhead, can be
reserved for the military, even though it is light enough for one person to carry.”), cert.
denied sub nom. Harrel v. Raoul, No. 23-1010, 2024 WL 3259606 (U.S. July 2, 2024); see
also Heller, 554 U.S. at 627.
As should be clear, these are not the modern equivalents of weapons that were
commonly possessed and employed for self-preservation by your shopkeeper, or your
butcher, or your blacksmith up the road in colonial America—the disarmament of whom
the Second Amendment was ratified to prevent. See Heller, 554 U.S. at 598–99. The
Second Amendment, with its “central component” of “individual self-defense,” is not
concerned with ensuring citizens have access to military-grade or gangster-style weapons.
Bruen, 597 U.S. at 29 (emphasis omitted). In short, then, while the Second Amendment
jealously safeguards the right to possess weapons that are most appropriate and typically
used for self-defense, it emphatically does not stretch to encompass excessively dangerous
weapons ill-suited and disproportionate to such a purpose.
Our friends in dissent argue that there is not simply a right to individual self-defense
but to “collective” self-defense. Dissenting Op. at 103–04. This view has several problems.

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One, it contradicts both the purpose and language of Heller and Bruen quoted in the
preceding paragraph. The second problem is one of self-contradiction. The dissent
announces a right to “communal self-defense” and then proceeds directly to disregard the
community’s judgment as expressed in the Maryland statute as to how communal self-
defense can be most effectively safeguarded. The third problem is the dissent’s conversion
of a right of self-defense to a right to possess arms whose uses on offense are all too
prominent and apparent. Either alone or in combination these hurdles underscore the
danger of expanding appellants’ right far beyond the careful exposition of the Second
Amendment that Heller and Bruen articulated.
D.
Having elucidated our understanding of the Second Amendment’s text in its
historical context, we turn to the Maryland regulations under challenge in the present case.
Our analysis confirms that the covered weapons are not within the ambit of the “right to
keep and bear arms” as codified within the plain text of the Second Amendment.
As an initial matter, we note that appellants have brought a facial challenge to the
assault weapons regulations. The Supreme Court has instructed that facial challenges are
“disfavored” because they “often rest on speculation,” “short circuit the democratic
process,” and “run contrary to the fundamental principle of judicial restraint.” Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 450–51 (2008). A facial challenge
is “the ‘most difficult challenge to mount successfully.’” Rahimi, 144 S. Ct. at 1898
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)); see also id. at 1907 (Gorsuch,
J., concurring). “To succeed in a typical facial attack, [appellants] would have to establish

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‘that no set of circumstances exists under which [the statute at issue] would be valid,’ or
that the statute lacks any ‘plainly legitimate sweep.’” United States v. Stevens, 559 U.S.
460, 472 (2010) (quoting Salerno, 481 U.S. at 745; Washington v. Glucksberg, 521 U.S.
702, 740 n.7 (1997) (Stevens, J., concurring in judgments)).
Appellants have not met this high bar. Many of the firearms regulated by the
Maryland statute are “dangerous and unusual weapons” that are not “in common use today
for self-defense.” Bruen, 597 U.S. at 21, 32 (internal quotation marks omitted). Rather,
they are weapons “most useful in military service” with firepower far exceeding the needs
of the typical self-defense situation. Heller, 554 U.S. at 627. These weapons therefore do
not fit within the Second Amendment’s ambit and thus “may be banned.” Id.
Consider, for example, the Barrett .50 caliber semiautomatic sniper rifle, one of the
forty-five covered long guns. See Md. Code, Pub. Safety § 5-101(r)(2)(ix). This rifle fires
bullets powerful enough to “to disable or destroy military targets such as armored personnel
carriers, radar dishes, communications vehicles, missiles, aircraft, bulk fuel and
ammunition storage sites.” Am. Bar Ass’n, Bar Ass’n of S.F. Special Comm. on Gun
Violence, Restriction of Sale of .50 Caliber Sniper Weapons (Aug. 7, 2005). Heralded as
“[t]he most powerful sniper rifle in the U.S. military,” the Barrett .50 cal. “is capable of
long range destruction of military targets at distances exceeding a mile . . . with the power
of a rocket or mortar but with the precision of a sniper rifle.” Id.; Caleb Larson, Barrett
M82: The U.S. Military’s Most Powerful Sniper Rifle, Real Clear Defense (Nov. 30, 2020).
This extraordinary combination of power and precision has helped Mexican cartels outgun
police, with the Barrett rifle becoming “a very symbolic weapon in the narco world” that

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“shows you’re on the top of the game.” Diego Oré and Drazen Jorgic, ‘Weapon of War’:
The U.S. Rifle Loved by Drug Cartels and Feared by Mexican Police, Reuters (Aug. 6,
2021).
Appellants made no effort to present evidence that this sniper rifle is “in common
use today for self-defense” and not a “dangerous and unusual” weapon outside of the
Second Amendment’s ambit. Bruen, 597 U.S. at 21, 32. How could they? Common sense
dictates that restricting the possession of this type of weapon is consistent with the original
meaning of the Second Amendment as elucidated in Heller and Bruen. With its very limited
ability to serve the defensive needs of the average citizen yet its extraordinary capability
to advance the offensive purposes of criminals, terrorists, and soldiers, the Barrett .50
caliber sniper rifle is exactly the type of firearm that is “most useful in military service”
and “may be banned” consistent with the Second Amendment. Heller, 554 U.S. at 627.
Nor do appellants seek to overcome this barrier with respect to many other long
guns regulated by the statute, such as the Striker-12 and other street sweeper shotguns. See
Md. Code, Pub. Safety § 5-101(r)(2)(xxxviii)-(xxxix). These shotguns each have a twelve-
round revolving cylinder most useful for riot control and military combat, and their
possession has been highly restricted by the federal government under the National
Firearms Act for over three decades. See ATF Rul. 94-2 (regulating Striker-12 and street
sweeper shotguns under the “destructive device” provision of 26 U.S.C. § 5845(f)(2));
United States v. White, 2017 WL 11528245, at *3 (W.D. Mo. Oct. 13, 2017). Perhaps
recognizing the steep uphill climb that such an argument would face, appellants did not

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devote even a page of their complaint or briefing to posit how these specific prohibitions
are unconstitutional.
In short, appellants have failed to show that each firearm regulated by the Maryland
statute is within the ambit of the Second Amendment. And so the broad relief their facial
challenge seeks is not ours to grant.
E.
We do recognize, however, that the parties thoroughly briefed the issue of whether
the Second Amendment protects a citizen’s ability to purchase and possess an AR-15,
which appellants refer to as the “paradigmatic semiautomatic rifle targeted by ‘assault
weapons’ laws.” Appellants’ Suppl. Opening Br. 25. This is also the question we primarily
considered at our en banc oral argument. Because it has been fully briefed and considered
after a remand from the Supreme Court, we find the question of whether the AR-15 is
within the ambit of the Second Amendment appropriate to address here. Not to address it
would be to bypass the very heart of the dispute in this proceeding.
1.
The intertwined origins of the AR-15 and its military version, the M16, show that
these weapons were intended for offensive combat applications rather than individual self-
defense. See Lamont, 685 F. Supp. 3d at 101. In the late 1950s, the U.S. Army was seeking
an improved infantry weapon. General Willard G. Wyman called upon firearms
manufacturers to develop a lightweight yet lethal combat rifle that would penetrate a steel
helmet at 500 yards. See Dallas T. Durham, The M-16: Tradition, Innovation, and
Controversy, U.S. Army Command & Gen. Staff Coll. (2021). Armalite Corporation

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responded by developing the AR-15, which originally was a selective-fire rifle with both
semiautomatic and automatic firing capability. See Lamont, 685 F. Supp. 3d at 74.
The AR-15 quickly gained popularity with the U.S. military, which, by the end of
1963, had purchased over 100,000 AR-15s and had begun to combat test them in Vietnam.
O.P. Bruno et al., M16 Rifle Sys.: Reliability and Quality Assurance Eval., U.S. Army
Materiel Command Aberdeen Rsrch. and Dev. Ctr., at App. II-1–II-2 (July 1968). Early
testing “discovered that a 7- or even 5-man squad armed with AR-15s could do as well or
better in hit-and-kill potential . . . than the traditional 11-man squad armed with M14
rifles,” the U.S. military’s standard-issue rifle during the late 1950s. See Kolbe, 849 F.3d
at 124. Further testing by the military and CIA concluded that the AR-15 was “superior in
virtually all respects to the – a. M-1 rifle, b. M-1 and M-2 Carbines, c. Thompson Sub-
machine gun and d. Browning Automatic rifle.” Advanced Rsch. Projects Agency, Field
Test Rep., AR-15 Armalite Rifle (Aug. 20, 1962). The AR-15 also became popular in
Vietnam, where the military found that it was a “more desirable weapon” than any of the
alternative military rifles, carbines, or submachineguns. Advanced Rsch. Projects Agency,
Rep. of Task No. 13A, Test of Armalite Rifle, AR-15, at 4 (July 31, 1962). The military
designated the AR-15 rifle the “M16” and adopted it as the standard-issue infantry rifle in
the late 1960s. See M16 Rifle Sys., at App. II-4; Encyc. Britannica, M16 Rifle (July 15,
2024).
During this same period, Colt, which had obtained the trademark and patents for the
AR-15 from Armalite, created a semiautomatic version of the rifle for the civilian market.
See Lamont, 685 F. Supp. 3d at 74. In 1977, the patents to the AR-15 expired, and a number

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of manufacturers started selling semiautomatic rifles built on the AR-15 platform. See
Emily Witt, How the AR-15 Became an American Brand, New Yorker (Sept. 27, 2023);
Greg Myre, A Brief History of the AR-15, Nat’l Pub. Radio (Feb. 28, 2018).
The civilian versions of the AR-15 have not strayed far from the rifle’s military
origin. The AR-15 continues to use the same internal piston firing system and the same
ammunition as the M16. See Bevis, 85 F.4th at 1195–96 & n.9; Adams Arms, Inc. v. Sig
Sauer, Inc., 2010 WL 3119777, at *1 (M.D. Fla. Aug. 2, 2010). Its bullets leave the muzzle
at a similar velocity of around 3000 feet per second, have a similar effective area target
range of up to 875 yards, and deliver a similar amount of kinetic energy upon impact. See
Bevis, 85 F.4th at 1196. Contemporary versions of the AR-15 and M16 have both
incorporated additional combat-functional features. These include a flash suppressor that
conceals the shooter’s position and facilitates night combat operations, and a pistol grip
that enables fast reloading and accuracy during sustained firing. See Kolbe, 849 F.3d at
125; Lamont, 685 F. Supp. 3d at 75; Rupp v. Bonta, 2024 WL 1142061, at *12 (C.D. Cal.
Mar. 15, 2024). Most versions of the AR-15, like the M16, use detachable 20-round or 30-
round magazines that increase the weapon’s effective rate of fire and are most useful in
prolonged firefights with enemy combatants. See N.Y. State Rifle & Pistol Ass’n v. Cuomo,
990 F. Supp. 2d 349, 365 (W.D.N.Y. 2013). Both weapons are also compatible with up to
100-round magazines. See Kolbe, 849 F.3d at 125. Other combat-functional features that
the AR-15 and M16 share include a threaded barrel for the affixing of a flash suppressor,
recoil compensator, or silencer; a barrel shroud to protect the shooter’s hands from
excessive heat during sustained firing; and a rail integration system for the mounting of

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sights, scopes, slings, flashlights, lasers, foregrips, bipods, bayonets, and under-barrel
grenade launchers or shotguns. See id. at 137; U.S. Army FM 3-22.9, at 2-7 (Aug. 12,
2008).
The firepower of the AR-15 and M16 is a key component of their “phenomenal
lethality.” Lamont, 685 F. Supp. 3d at 101. Built to generate “maximum wound effect” and
to pierce helmets and body armor, id. at 100, AR-15 bullets discharge at around “three
times the velocity of a typical handgun,” Rupp, 2024 WL 1142061, at *11. These higher
velocity rounds “hit fast and penetrate deep into the body,” creating severe damage. Bevis
v. City of Naperville, 657 F. Supp. 3d 1052, 1073 (N.D. Ill. 2023). When a bullet fired from
an AR-15 impacts human tissue, it typically “yaws” or turns sideways. Del. State
Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec., 664 F. Supp. 3d 584, 599 (D.
Del. 2023). As it passes through the body, the rotated bullet creates a large, “temporary
cavity” or “blast wave” that can be “up to 11-12.5 times larger than the bullet itself,” id.
(internal quotation marks omitted)—an effect known as “cavitation,” Capen v. Campbell,
2023 WL 8851005, at *15 (D. Mass. Dec. 21, 2023). So, while a “typical 9mm [bullet]
wound to the liver” from a commonly used handgun like the Glock 19 “will produce a
pathway of tissue destruction in the order of one inch to two inches,” an AR-15 wound
“will literally pulverize the liver, perhaps best described as dropping a watermelon onto
concrete.” Id. (internal alterations omitted). The “catastrophic” damage caused by AR-15
rounds means that the injuries they leave in their wake—such as “multiple organs
shattered,” bones “exploded,” and “soft tissue absolutely destroyed”—“often cannot be
repaired” by trauma surgeons. Del. State Sportsmen’s Ass’n, 664 F. Supp. 3d at 599–600

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(internal quotation marks omitted); see also Kolbe, 849 F.3d at 124; N. Kirkpatrick et al.,
The Blast Effect: This Is How Bullets from an AR-15 Blow the Body Apart, Wash. Post
(Mar. 27, 2023).
Another key aspect of the destructiveness of the AR-15 and M16 is their pairing of
high muzzle velocity with a comparative lack of recoil. AR-15s can fire rounds “in rapid
succession on a precise target, even while standing or moving, because a shooter’s position
is relatively unaffected by the recoil of each shot.” Capen, 2023 WL 8851005, at *15. This
lower recoil makes the AR-15 “uniquely dangerous” compared to other high-powered
rifles, which tend to have greater recoil that “necessarily disrupts follow-on shots.” Id.
The primary difference between the M16 and AR-15—the M16’s capacity for
automatic fire, burst fire, or both, depending on the model—pales in significance compared
to the plethora of combat-functional features that makes the two weapons so similar. The
U.S. Army Field Manual instructs that semiautomatic fire is “[t]he most important firing
technique during fast-moving, modern combat” because it “is the most accurate technique
of placing a large volume of fire on . . . multiple, or moving targets.” U.S. Army FM 3-
22.9, at 7-8 (Aug. 12, 2008); see also Rupp, 2024 WL 1142061, at *10. Indeed, a decorated
former U.S. Navy SEAL stated that he “[n]ever once fired full auto in combat” during a
decade of special operations combat deployments, including the 2011 Osama Bin Laden
raid. @mchooyah, Twitter (Oct. 3, 2017, 5:04 PM), https://perma.cc/7JXA-YK97.
Moreover, the AR-15’s rate of fire can “be easily converted to . . . mimic military-grade
machine guns” with devices like bump stocks, trigger cranks, and binary triggers. Bevis,
657 F. Supp. 3d at 1074; see also Del. State Sportsmen’s Ass’n, 664 F. Supp. 3d at 600. In

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Garland v. Cargill, the Court recently emphasized that “[s]hooters have devised techniques
for firing semiautomatic firearms at rates approaching those of some machine guns.” 602
U.S. 406, 411 (2024); see also id. at 429 (Alito, J., concurring) (“[A] semiautomatic rifle
with a bump stock can have the same lethal effect as a machinegun.”). Additionally,
nothing in Cargill evinced any affirmative endorsement of bump stocks. The case rested
on a close reading of statutory text and regulatory deviation from it, which is not before us
here. See id. at 415 (majority opinion).
Between its firepower, accuracy, and modifiability, the “net effect” of the AR-15’s
“military combat features is a capability for lethality.” Kolbe, 849 F.3d at 144. All this is a
far cry from any notion of civilian self-defense.
2.
Illicit uses of the AR-15 have demonstrated just how much destruction the weapon
can cause in the wrong hands. When used for criminal purposes, the AR-15 and other
assault rifles “result in more numerous wounds, more serious wounds, and more victims.”
Id. at 140 (quoting Cuomo, 804 F.3d at 262). AR-15s are disproportionately used in mass
shootings: one recent examination found that although AR-platform rifles constituted about
5% of the firearms in the United States, they were used in 25% of mass shootings. Rupp,
2024 WL 1142061, at *11. Moreover, in a grim testament to the gun’s deadliness, mass
shootings are over 60% more deadly when an AR-15 or similar assault rifle is used. See id.
(“[O]ver the past ten years, there have been 12.9 fatalities per shooting when an assault
rifle is used in a mass shooting, as opposed to 7.8 fatalities per shooting where an assault
rifle is not used.”). Four of every five “mass shootings that resulted in more than 24 deaths

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involved the use of assault rifles,” id., as did every single mass shooting involving more
than 40 deaths, see The Violence Project, Mass Shooter Database (database updated Jan.
2024). In short, the AR-15 and other assault rifles are the preferred weapons for those bent
on wreaking death and destruction upon innocent civilians.
Their utility for mass killing has made the AR-15 and similar assault rifles the most
popular arms for terrorist attacks in the United States. The perpetrator of the Pulse
nightclub shooting—which was “the deadliest terrorist attack in the United States since
September 11, 2001”—used an assault rifle similar to the AR-15 that is covered by the
“copycat weapon” provision of Maryland’s assault weapons regulation. See Frank Straub
et al., Rescue, Response, and Resilience, U.S. Dep’t of Just. Cmty. Oriented Policing
Servs., at 1, 7 (2017). With his rifle in hand, the ISIS-aligned perpetrator walked into the
Orlando nightclub and fired approximately 200 rounds in five minutes. Id. at 18, 23–24.
Despite a police detective being on scene who called in the shooting as soon as it began,
and despite the SWAT team arriving six minutes later, the terrorist was able to shoot 102
innocent people, killing 49 of them. Id. at x, 77. Police found so many people lying shot
and bleeding on the dance floor that one officer—in a desperate attempt to triage casualties
and save lives—shouted, “if you’re alive, raise your hand.” Id. at 22. Another responding
officer who had served three combat tours in the U.S. military described his experience in
the nightclub: “I was a platoon sergeant again. I stepped out of being a cop and back into
being a platoon sergeant. We were in a war zone.” Id. at 21.
Indeed, AR-15 or AK-47 type assault rifles covered by the Maryland regulations
have been used in every major terrorist attack on U.S. soil in the past decade: the 2015 San

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Bernardino office attack (14 victims killed, 24 injured), the 2016 Pulse nightclub shooting
(49 victims killed, 58 injured), the 2018 Pittsburgh synagogue shooting (11 victims killed,
6 injured), the 2019 El Paso Walmart shooting (23 victims killed, 22 injured), and the 2022
Buffalo supermarket shooting (10 victims killed, 3 injured). See id. at vii, 7; U.S. Dep’t of
Just. Cmty. Oriented Policing Servs., Bringing Calm to Chaos: A Critical Incident Rev. of
the San Bernardino Pub. Safety Response, at xiii, 39 (2016); Campbell Robertson et al., 11
Killed in Synagogue Massacre; Suspect Charged With 29 Counts, N.Y. Times (Oct. 27,
2018); Kayla McCormick & Phil Helsel, El Paso Walmart Mass Shooter Sentenced to 90
Consecutive Life Terms, NBC News (July 7, 2023); Emily Mae Czachor, Gunman in
Buffalo Supermarket Shooting Pleads Guilty, CBS News (Nov. 28, 2022). As modern
information technologies have increasingly shifted the terrorism threat towards “lone
offenders” who are often driven to extremism “by a mix of conspiracy theories;
personalized grievances; and enduring racial, ethnic, religious, and anti-government
ideologies,” AR-15s will likely remain a crucial instrument of terrorism in the United
States so long as they are widely available. U.S. Dep’t of Homeland Sec., Homeland Threat
Assessment 2024 at v, 3 (Sept. 14, 2023).
In addition to being the weapons of choice for mass killing and terrorism, AR-15s
and similar assault rifles are “uniquely dangerous to law enforcement.” Capen, 2023 WL
8851005, at *13. These firearms place law enforcement officers “at particular risk” because
“their high firepower” causes their bullets to readily penetrate police body armor. Heller v.
District of Columbia, 670 F.3d 1244, 1263 (D.C. Cir. 2011); see also Del. State
Sportsmen’s Ass’n, 664 F. Supp. 3d at 600; Lamont, 685 F. Supp. 3d at 98–99. AR-15s also

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“allow criminals to effectively engage law enforcement officers from great distances,”
giving them a “military-style advantage.” Kolbe, 849 F.3d at 127.
The impact of these dangers is starkly displayed in the statistics of slain law
enforcement officers. Despite the relative rarity of assault weapons, studies have estimated
that they have been used to gun down between 13% to 20% of those officers killed in the
line of duty. See Lamont, 685 F. Supp. 3d at 99. Moreover, assault rifles have been used in
the deadliest recent attacks on law enforcement officers, such as the 2016 killing of five
Dallas police officers and the 2024 murder of four officers, including three U.S. Marshals
task force members, in Charlotte. See Sopan Deb et al., 8 Officers Are Shot, 4 Fatally,
While Serving Warrant in Charlotte, N.Y. Times (Apr. 29, 2024).
As criminals and terrorists have increasingly turned to AR-15s and similar assault
rifles, there have been “multiple incidents in which [they] outgun police.” Del. State
Sportsmen’s Ass’n, 664 F. Supp. 3d at 600. One of these instances was again the Pulse
nightclub terrorist attack. The detective who was on scene when the shooting began
“recognized that his Sig Sauer P226 9mm handgun . . . was no match for the .223 caliber
rifle being fired inside the club and moved to a position that afforded him more cover in
the parking lot.” See Frank Straub et al., Rescue, Response, and Resilience, at 16. The first
police officers on scene at the Uvalde, Texas elementary school shooting that left 19
students and two teachers dead similarly “concluded they were outgunned[, a]nd that they
could die” after identifying the shooter’s gun as an “AR,” and thus “opted to wait for the
arrival of a Border Patrol SWAT team . . . based more than 60 miles away.” Zach Despart,
“He Has a Battle Rifle”: Police Feared Uvalde Gunman’s AR-15, Tex. Tribune (Mar. 20,

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2023). Time after time, the sheer power of AR-15 style rifles has contributed to hesitation
by police in confronting mass shooters, exacerbating the bloodshed and trauma that result.
See, e.g., Mirna Alsharif and David K. Li, Parkland Shooting Verdict: School Security
Officer Scot Peterson Acquitted Over Failure to Confront Gunman, NBC News (June 29,
2023); Faith Karimi & Chris Boyette, Las Vegas Police Fires an Officer Who ‘Froze’ in
Hotel Hallway During 2017 Massacre, CNN (July 4, 2019).
3.
We have described the AR-15’s capacities in abundant detail to demonstrate just
how far outside the animating purposes of the Second Amendment this weapon lies. While
we know that the AR-15 thrives in combat, mass murder, and overpowering police,
appellants have failed to demonstrate that the weapon is suitable for self-defense. This is
likely because such a showing would be difficult to make. Indeed, many of the weapon’s
combat-functional features make it ill-suited for the vast majority of self-defense situations
in which civilians find themselves.
To wit: the heightened firepower of AR-15s “pose[s] a serious risk of ‘over-
penetration’—that is, [bullets] passing through their intended target and impacting a point
beyond it.” Capen, 2023 WL 8851005, at *15. For example, AR-15 rounds “can pass
through most construction materials, even at ranges of 350 yards,” thereby threatening the
lives of “bystanders, family members, or other innocent persons well outside the intended
target area.” Id.; see also Kolbe, 849 F.3d at 127 (“[R]ounds from assault weapons have
the ability to easily penetrate most materials used in standard home construction, car doors,
and similar materials.”). Overpenetration poses a grave risk in the home—“where the need

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for defense of self, family, and property is most acute,” Heller, 554 U.S. at 628—because
firing an AR-15 in close quarters will often put the safety of cohabitants and neighbors in
jeopardy, see Worman v. Healey, 922 F.3d 26, 37 (1st Cir. 2019).
The large magazines that are integral to the AR-15’s effectiveness in combat and
mass murder are also ill-suited for typical self-defense scenarios. As the First Circuit has
noted, “civilian self-defense rarely—if ever—calls for the rapid and uninterrupted
discharge of many shots.” Ocean State Tactical, 95 F.4th at 45. Indeed, “most homeowners
only use two to three rounds of ammunition in self-defense,” Ass’n of N.J. Rifle & Pistol
Clubs v. Att’y Gen. N.J., 910 F.3d 106, 121 n.25 (3d Cir. 2018), with one study finding that
when citizens fire shots in self-defense, they fire an average of two shots and, 97% of the
time, fire five shots or fewer, Lamont, 685 F. Supp. 3d at 96; see also Kolbe, 849 F.3d at
127; Worman, 922 F.3d at 37; Hanson, 671 F. Supp. 3d at 14–16.
The AR-15 also does not have any of the advantages that the Supreme Court
identified in Heller as establishing the handgun as the “quintessential self-defense
weapon . . . for home defense.” 554 U.S. at 629. Compared to a handgun, the AR-15 is
heavier, longer, harder to maneuver in tight quarters, less readily accessible in an
emergency, and more difficult to operate with one hand. See id.; see also Capen, 2023 WL
8851005, at *15.
Outside the home, the AR-15 has even less utility for self-defense. It is significantly
less concealable than a handgun and much more difficult to carry while conducting daily
activities. See Capen, 2023 WL 8851005, at *15. When shot in cities, towns, or other
densely populated areas where armed confrontations most often occur, the AR-15 presents

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at least as great a risk as it does in the home of harming innocent bystanders due to
overpenetration. See id.; Kolbe, 849 F.3d at 127; Worman, 922 F.3d at 37. Moreover, public
carry of an AR-15 in modern-day America may well “spread[] ‘fear’ or ‘terror’ among the
people” due to its frequent and devastating use in mass shootings of innocent civilians—
an effect that our common-law tradition has long regarded as incompatible with lawful
carry for self-defense. Bruen, 597 U.S. at 50.
In sum, the AR-15—with its military origination, combat-functional features, and
extraordinary lethality—has “the same basic characteristics, functionality, capabilities, and
potential for injury as the” M16. Capen, 2023 WL 8851005, at *14. And its all too frequent
use in terrorism, mass killing, and police murder shows that the AR-15 offers firepower ill-
suited and disproportionate to fulfilling the Second Amendment’s purpose of armed self-
defense. Therefore, just like the M16, the AR-15 is “most useful in military service” and
“may be banned” consistent with the Second Amendment. Id.
F.
Appellants take umbrage with our method of analysis, contending that “arms that
are ‘in common use today’ are constitutionally protected and cannot be banned.”
Appellants’ Suppl. Opening Br. 2 (quoting Bruen, 597 U.S. at 47). According to their
reading of Heller and Bruen, the covered assault rifles are “unquestionably arms within the
meaning of the Second Amendment” because they are “‘instruments that constitute
bearable arms.’” Id. at 18 (quoting Heller, 554 U.S. at 582). Therefore, say appellants, the
possession of the covered rifles cannot be prohibited because they are “in common use,”
with “millions of law-abiding citizens choos[ing] to possess” them, and thus “by definition

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will not fit into” the “historical tradition of prohibiting the carrying of dangerous and
unusual weapons” acknowledged in Heller and Bruen. Id. at 19, 27 (internal quotation
marks omitted). Under this view, so long as enough law-abiding citizens own a type of
firearm, that type of firearm cannot be prohibited.
As an initial matter, this argument misreads Heller and Bruen. In those cases the
Supreme Court did not posit that a weapon’s common use is conclusive evidence that it
cannot be banned. Rather, the Court instructed that “the Second Amendment protects only
the carrying of weapons that are those ‘in common use at the time,’ as opposed to those
that ‘are highly unusual in society at large.’” Bruen, 597 U.S. at 47 (quoting Heller, 554
U.S. at 627) (emphasis added). In other words, weapons that are not in common use can
safely be said to be outside the ambit of the Second Amendment. But the logic does not
work in reverse. Just because a weapon happens to be in common use does not guarantee
that it falls within the scope of the right to keep and bear arms.
Appellants’ argument also does not resolve the difficulties in determining which
weapons would pass its ill-conceived popularity test. Appellants posit that a weapon need
only be in common use today for lawful purposes, but Bruen implies that a weapon must
be “in common use today for self-defense” to be within the ambit of the Second
Amendment. 597 U.S. at 32 (internal quotation marks omitted); see Bevis, 85 F.4th at 1192;
Price, No. 22-4609, slip op. at 19–20 (majority opinion). Appellants contend that mere
possession of a firearm by a requisite quantity of Americans is sufficient, but 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, and perhaps only active

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employment in self-defense. See, e.g., Bailey v. United States, 516 U.S. 137, 143–45
(1995). Appellants further contend that all semiautomatic rifles should be categorized as
the same type of firearm when conducting a common use inquiry, and thereby disregard
the exponential differences in firepower between a small-bore rimfire rifle and a .50 caliber
sniper rifle. What is more, appellants do not provide a clear threshold for the number of
firearms they believe must be possessed to be in common use. Cf. United States v. Berger,
2024 WL 449247, at *7 (E.D. Pa. Feb. 6, 2024) (“[A]pproximately 740,000 machineguns
[were] registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives as of May
2021.”).
Most importantly, appellants’ proposed common use inquiry leads to absurd
consequences because it totally detaches the Second Amendment’s right to keep and bear
arms from its purpose of individual self-defense. We have noted that certain bearable
arms—such as the M16, the short-barreled shotgun, the ricin pellet-firing umbrella gun,
and the W54 nuclear warhead—are not protected by the Second Amendment. But under
appellants’ common use inquiry, any one of these or similarly dangerous weapons could
gain constitutional protection merely because it becomes popular before the government
can sufficiently regulate it. Appellants admitted as much when they conceded at oral
argument that the government could not prohibit possession of a “machine gun,” a
“bazooka,” or “any firearm” so long as the weapon was “in common use.” Oral Argument
at 14:00–14:58, Bianchi v. Brown, No. 21-1255 (4th Cir. 2024).
Such a trivial counting exercise makes a mockery of the careful interest balancing
between individual self-defense and societal order that our legal tradition has carved into

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the heart of the right to keep and bear arms. It also ignores the reality that weapons may
well proliferate before lawmakers comprehend that they are ill-suited or disproportionate
to self-defense. Indeed, dangerousness and unusualness need not be static concepts. That
would foreclose the ability of legislators to assess these characteristics and to enhance their
knowledge through observation and experience. We cannot reasonably expect our
representatives to be fortune tellers, anticipating the score of dangers posed by advances in
weapons technology. This is particularly true as the pace of weapons manufacturing and
distribution has continued to accelerate in recent years. See, e.g., What Is a Ghost Gun?,
CBS News (Apr. 11, 2022). We decline to hold that arms manufacturers can secure
constitutional immunity for their products so long as they distribute a sufficient quantity
before legislatures can react. A constitutional right with a “meaning . . . fixed according to
the understandings of those who ratified it” cannot be read to expand or contract based on
nothing more than contemporary market trends. Bruen, 597 U.S. at 28.
Bruen’s admonition that the right to keep and bear arms extends only to those
weapons “‘in common use’ today for self-defense” reflects the fact that the Second
Amendment protects only those weapons that are typically possessed by average
Americans for the purpose of self-preservation and are not ill-suited and disproportionate
to achieving that end. 597 U.S. at 32, 47; see also Lamont, 685 F. Supp. 3d at 71. As

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demonstrated above, the AR-15 is a combat rifle that is both ill-suited and disproportionate
to self-defense. It thereby lies outside the scope of the Second Amendment. 2
IV.
In Bruen, the Supreme Court emphasized the importance of using history and
tradition in determining whether a firearms regulation is permissible under the Second
Amendment. See 597 U.S. at 25 (stressing that “reliance on history to inform the meaning
of constitutional text—especially text meant to codify a pre-existing right—is, in our view,
more legitimate, and more administrable” than means-end scrutiny); id. at 17 (noting that
“[o]nly if a firearm regulation is consistent with this Nation’s historical tradition may a
court conclude that the individual’s conduct falls outside the Second Amendment’s
unqualified command” (internal quotation marks omitted)). Out of respect for the Supreme
Court’s order remanding this case after Bruen, we think it appropriate to reckon with the
tradition of weapons regulation in this country and assess whether the Maryland statute is
2 Because appellants have not shown that the AR-15 or any of the other assault
weapons at issue are within the scope of the Second Amendment, there is no need to
remand the case to the district court for further proceedings. Neither party preferred a
remand, and for good reason. As appellants themselves argued, remand “is neither
necessary nor appropriate” because, to decide this case, we “need only consult ‘legislative
facts’ . . . [those] ‘that bear on the justification for legislation, as distinct from’ adjudicative
facts, which are facts ‘concerning the conduct of parties in a particular case.’” Appellants’
Suppl. Opening Br. 33 (quoting Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012)).
Our thorough review of such legislative facts has made plain that the covered assault
weapons are not within the protection of the Second Amendment. To return the case to the
district court for further proceedings would accomplish nothing other than to leave the
Maryland law in limbo while the litigation yo-yos along a perpetual string of remands and
appeals. The Supreme Court acknowledged as much by concluding that a case-specific
factual record was unnecessary to decide Bruen. See 597 U.S. at 11. The Court has done
its job in Bruen, and the Maryland legislature has done its job in enacting the statute. Now
it is time that we do ours.

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harmonious with it. In light of that analysis, we find that the Maryland regulation is readily
“consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S.
at 34.
The statute is one of many in a storied tradition of legislatures perceiving threats
posed by excessively dangerous weapons and regulating commensurately. Indeed, the arc
of weapons regulation in our nation has mimicked a call and response composition, in
which society laments the harm certain excessively dangerous weapons are wreaking, and
the state, pursuant to its police power, legislates in kind. The Maryland statute is but another
example of this constructive, indeed indispensable, dialogue.
A.
Under Bruen, we must engage in “reasoning by analogy” to “determin[e] whether a
historical regulation is a proper analogue for a distinctly modern firearm regulation.” 597
U.S. at 28–29. To do so, we consider “whether [the] modern and historical regulations
impose a comparable burden on the right of armed self-defense and whether that burden is
comparably justified.” Id. at 29. The analogue need not be “a historical twin,” but must be
“a well-established and representative historical analogue.” Id. at 30. Thus, “even if a
modern-day regulation is not a dead ringer for historical precursors, it still may be
analogous enough to pass constitutional muster.” Id.
Second Amendment analysis is heavily historical, and to bypass an inquiry into
history here would be an inexplicable omission. The Court in United States v. Rahimi
reaffirmed Bruen’s approach to history. As Chief Justice Roberts wrote for the Rahimi
majority, “The law must comport with the principles underlying the Second Amendment,

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but it need not be a ‘dead ringer’ or a ‘historical twin.’” Rahimi, 144 S. Ct. at 1898 (quoting
Bruen, 597 U.S. at 30); see also id. at 1907 (Gorsuch, J., concurring) (“To prevail, the
government need not show that the current law is a ‘dead ringer’ for some historical
analogue.” (quoting Bruen, 597 U.S. at 30)); id. at 1904–05 (Sotomayor, J., joined by
Kagan, J., concurring) (noting that “the Court rejects [a] rigid approach to the historical
inquiry” and that a “shared principle” between the old and new laws “is sufficient”).
The use of history is thus important not just to remain consistent with the drafters’
understanding but also to acquaint Americans with the glories and flaws of our own history
and founding generation. It is vital to appreciate that while history may fix the date on
which certain events occur, the understanding of history is not frozen in time. See id. at
1897 (majority opinion) (explaining that Heller and Bruen “were not meant to suggest a
law trapped in amber”). This understanding deepens as new sources become available and
new insights are advanced. Such ongoing learning compels consultation with the historical
record, without at the same time using history as a set of minute instructions or a
“straightjacket.” Bruen, 597 U.S. at 30. This is what we think Justice Barrett meant when
she recently wrote that “[h]istorical regulations reveal a principle, not a mold.” Rahimi,
144 S. Ct. at 1925 (Barrett, J., concurring). We take it as such here. This use of history does
not update the Constitution, but rather enriches our view of the Framers’ understanding of
it.
Bruen further instructs that “when a challenged regulation addresses a general
societal problem that has persisted since the 18th century, the lack of a distinctly similar
historical regulation addressing that problem is relevant evidence that the challenged

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regulation is inconsistent with the Second Amendment.” 597 U.S. at 26. But if a case
“implicat[es] unprecedented societal concerns or dramatic technological changes,” courts
may need to take “a more nuanced approach.” Id. at 27.
B.
This case calls for such a nuanced approach. The ripples of fear reverberating
throughout our nation in the wake of the horrific mass shootings in, for example, Las
Vegas, Orlando, Blacksburg, Sandy Hook, Sutherland Springs, El Paso, Uvalde, Lewiston,
Parkland, San Bernardino, Binghamton, Fort Hood, Thousand Oaks, Virginia Beach,
Washington, D.C., Aurora, Monterey Park, Pittsburgh, Geneva County, Boulder, Buffalo,
Covina, Dayton, Red Lake, Roseburg, San Jose, Santa Fe, Allen, Charleston, Indianapolis,
Manchester, Omaha, and Plano—each of which occurred in the 21st century and resulted
in at least nine fatalities—stem from a crisis unheard of and likely unimaginable at the
founding. See The Violence Project, Mass Shooter Database (database updated Jan. 2024).
Certainly it would have been shocking to the Framers to witness the mass shootings
of our day, to see children’s bodies “stacked up . . . like cordwood” on the floor of a church
in Sutherland Springs, Texas; to hear a Parkland, Florida high school student describe her
classroom as a “war zone” with “blood everywhere”; to be at a movie in Aurora, Colorado
when suddenly gunfire erupted, leaving “bodies” strewn and “blood on seats, blood on the
wall, blood on the emergency exit door”; to run past “shoes scattered, blood in the street,
bodies in the street” while bullets blazed through the sky in Dayton, Ohio; to watch law
enforcement officers encounter “a pile of dead children” in Sandy Hook, Connecticut; to
stand next to one of those officers as he tried to count the dead children, but “kept getting

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confused,” as his “mind would not count beyond the low teens.” Silvia Foster-Frau et al.,
Terror on Repeat: A Rare Look at the Devastation Caused by AR-15 Shootings, Wash. Post
(Nov. 16, 2023).
What did our forebears have by way of comparison, when they were drafting the
Second and Fourteenth Amendments? Nothing even close. “[T]here is no known
occurrence of a mass shooting resulting in double-digit fatalities from the Nation’s
founding in 1776 until . . . 1949.” Oregon Firearms Fed’n, Inc. v. Brown, 644 F. Supp. 3d
782, 803 (D. Ore. 2022). Yet, in modern mass shootings involving assault weapons, the
death toll is often in the dozens.
Rapid advancements in gun technology are a central cause of this mass carnage.
“[W]hile mass murder has been a fact of life in the United States since the mid-nineteenth
century, it was a group activity through the nineteenth century because of the limits of
existing technologies.” Lamont, 685 F. Supp. 3d at 105 (internal quotation marks omitted).
Back then, “[t]he only way to kill a large number of people was to rally like-minded
neighbors and go on a rampage” using the firearms and melee weapons available at the
time. Id. These weapons were “certainly lethal but did not provide individuals or small
groups of people the means to inflict mass casualties on their own.” Id.
In sharp contrast, AR-15s and the like are designed to empower an individual soldier
to kill as many people in as little time as possible, as we demonstrated above. It took only
32 seconds for a lone shooter to murder nine people and shoot 17 others in Dayton, Ohio.
Emily Shapiro, 26 Shot in 32 Seconds: New Details, Videos Released in Dayton Mass
Shooting, ABC News (Aug. 13, 2019). It took about two minutes for a single shooter to

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kill ten people and injure three at a supermarket in Buffalo, New York. N. Kirkpatrick et
al., The Blast Effect: This Is How Bullets from an AR-15 Blow the Body Apart, Wash. Post
(Mar. 27, 2023). It took less than three minutes for a married couple to murder 14 people
and injure 24 at an office in San Bernardino, California. Id.
These are not our forebears’ arms, and these are not our forebears’ calamities. We
thus take the instruction of Bruen to engage in a “more nuanced approach” to address these
“unprecedented societal concerns.” 597 U.S. at 27.
C.
Upon canvassing the historical record of arms regulations, and relying with
gratitude on the careful work of professional historians, what we deduce is this:
legislatures, since the time of our founding, have responded to the most urgent and visible
threats posed by excessively harmful arms with responsive and proportional legislation.
They have devised well-tailored solutions to the most salient issues plaguing their
communities, while nonetheless protecting the core right of their citizens to defend
themselves with arms in pressing circumstances. When a weapon’s potential for
widespread criminal abuse or unreasonable capacity to inflict casualties became apparent
to lawmakers, they did not hesitate to regulate in response. We hold that the Maryland
statute fits comfortably within this venerable tradition.
On the cusp of the Revolutionary War, firearms were a common fixture in the
American home, but they were not used often in homicides. Randolph Roth, Why Guns Are
and Aren’t the Problem: The Relationship Between Guns and Homicide in American
History, in A Right to Bear Arms? The Contested Role of History in Contemporary Debates

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on the Second Amendment 116 (Jennifer Tucker et al. eds., 2019). And this small slice of
homicides committed with firearms was cut from a relatively small pie, as interpersonal
violence among colonists and early Americans rarely resulted in death. See id.; Baird v.
Bonta, 2023 WL 9050959, at *31 (E.D. Cal. Dec. 29, 2023).
The reason firearms were so infrequently used in homicides in the 18th century was
because they had limited utility for such a purpose. Many early Americans owned a musket
or a fowling piece, but these weapons were prone to misfiring and needed to be reloaded
after each shot, a time-consuming process that required acumen and experience. Roth, Why
Guns Are and Aren’t the Problem, at 116–17; Joseph Blocher & Eric Ruben, Originalism-
by-Analogy and Second Amendment Adjudication, 133 Yale L.J. 99, 153 (2023). Keeping
firearms preemptively loaded was difficult, as the gunpowder of the day readily absorbed
moisture and could corrode the gun’s metal barrel and firing mechanism. Roth, Why Guns
Are and Aren’t the Problem, at 117; Baird, 2023 WL 9050959, at *31. “Guns thus generally
were not kept or carried loaded in 1791.” Blocher & Ruben, Originalism-by-Analogy, 133
Yale L.J. at 153. Early Americans instead engaged in impromptu fights with their hands
and feet, or used melee weapons such as “whips, sticks, hoes, shovels, axes, [or] knives.”
Roth, Why Guns Are and Aren’t the Problem, at 117. Pre-Revolution, then, there was little
regulation of firearms in America, as they were seldom used in “homicides that grew out
of the tensions of daily life.” Id.
One exception to this early lack of regulation was the restriction on gunpowder.
Aggregation of gunpowder concerned colonists as large amounts of the substance “could
kill many people at once if ignited.” Ocean State Tactical, 95 F.4th at 49. In response to

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this danger—which resulted from the accumulation of firepower disproportionate to the
lawful purpose of individual self-defense—a handful of American cities and states
restricted the quantity of gunpowder that an individual could possess.3
During the 19th century, the nation saw a surge in interpersonal violence. Starting
in the South and then sprawling northward, eastward, and westward, homicide rates
swelled. See Randolph Roth, American Homicide 180, 199–201, 299–302, 337 (2009). The
proportion of killings committed with firearms increased as well. See Randolph Roth,
American Homicide Supplemental Volume: Weapons Figures, Figures 25, 29, 34, 38
(2009); Roth, Why Guns Are and Aren’t the Problem, at 122.
Improvements in weapons technology contributed to this rise in interpersonal
violence. In the mid-19th century, gunmakers like Samuel Colt greatly improved the
designs of percussion-cap repeating pistols, and “breech-loading revolvers, shotguns, and
rifles” became widely available to consumers. Roth, Why Guns Are and Aren’t the
Problem, at 121; see also Brian DeLay, The Myth of Continuity in American Gun Culture,
113 Calif. L. Rev. (forthcoming 2025) (manuscript at 41, 44). Repeating pistols and most
breech-loading guns could fire multiple rounds without reloading. Roth, Why Guns Are
and Aren’t the Problem, at 120–21; DeLay, The Myth of Continuity, at 41, 44. Breech-
3 See, e.g., 1784 N.Y. Laws 627 (mitigating “Danger Arising from the Pernicious
Practice of Lodging Gun Powder” in New York City by limiting the amount of gunpowder
in one place to 28 pounds, separated into four canisters); Act of Dec. 6, 1783, chap. 1059,
11 Pa. Stat. 209; 1786 N.H. Laws 383–84; An Act Relative to the Keeping Gun-Powder in
the Town of Providence, 1798–1813 R.I. Pub. Laws 85, § 2; 1801 Mass. Acts 507; 1806
Ky. Acts 122 § 3; 1811 N.J. Laws 300, § 1. We appreciate the good work of the Duke
Center for Firearms Law in building its Repository of Historical Gun Laws.

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loading guns could also be kept loaded with minimal risk of corrosion and were more
accurate than their flintlock and percussion-lock predecessors. See Roth, Why Guns Are
and Aren’t the Problem, at 121; Robert J. Spitzer, Understanding Gun Law History After
Bruen: Moving Forward by Looking Back, 51 Fordham Urb. L.J. 57, 81–82 (2023).
“Americans scrambled to buy” these weapons, which were “ideal for killing in the heat of
the moment.” Roth, Why Guns Are and Aren’t the Problem, at 121. Once people got their
hands on these guns, “they kept them everywhere: in their homes, in their wagons, in saddle
bags, purses, and pockets.” Id. As a result, civilians had easy access to more portable and
precise firearms than ever before.
Knives, too, advanced in lethality. Designed for the express purpose of fighting,
dirks and Bowie knives generally had longer blades than ordinary knives, crossguards to
protect users’ hands, and clip points that made it easier to stab an opponent. See Declaration
of Prof. Randolph Roth at 19, Nat’l Ass’n for Gun Rts. v. Lamont, 685 F. Supp. 3d 63 (D.
Conn. Aug. 3, 2023) [hereinafter Roth Declaration]; David B. Kopel et al., Knives and the
Second Amendment, 47 U. Mich. J.L. Reform 167, 180 (2013). Bowie knives “were widely
used in fights and duels, especially at a time when single-shot pistols were often unreliable
and inaccurate.” Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 89. As
the Supreme Court of Texas explained, “The gun or pistol may miss its aim, and when
discharged, its dangerous character is lost, or diminished at least,” but “[t]he bowie-knife
differs from these in its device and design; it is the instrument of almost certain death.”
Cockrum v. State, 24 Tex. 394, 402 (1859).

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The country set out to do something about the surge in homicides that had been
driven, in part, by the development of these more effective arms. Citizens and lawmakers
alike recognized that deadly yet concealable weapons—especially pistols, revolvers, and
fighting knives—were the primary culprits in a large proportion of the homicides and
assaults of the day. In 1834, for instance, the grand jurors of Jasper County, Georgia,
denounced the lack of restrictions on concealable weapons. Roth, American Homicide, at
218–19. They told their lawmakers that it was “common” practice among the more
violently inclined to “arm themselves with Pistols, dirks knives sticks & spears under the
specious pretence of protecting themselves,” which resulted in the “stabbing shooting &
murdering so many of our citizens.” Id.
When confronted with these “public safety concerns over the increase in gun
violence and the proliferation of concealable weapons,” legislatures responded in kind.
They passed restrictions on carry, and, in some cases, outright bans on the possession of
certain more dangerous weapons. See DeLay, The Myth of Continuity, at 41, 52. Indeed,
over the course of the 19th century and into the early 20th century, nearly every single state
would either regulate the carry of certain firearms or place severe restrictions on their
possession.4
4 Act of Feb. 1, 1839, No. 77, 1838 Ala. Laws 67; An Act to Define and Publish
Crimes in the District of Alaska, ch. 429, § 114, 117, 30 Stat. 1253, 1270 (1899); Act of
Mar. 18, 1889, No. 13, § 1, 1889 Ariz. Sess. Laws 16; Ark. Stat. Rev. ch. XLIV, § 13
(1837); Act of Apr. 16, 1850, ch. 99, § 127, 1850 Cal. Stat. 229, 245; Act of Aug. 14, 1862,
1862 Colo. Sess. Law 56; Act of June 2, 1923, ch. 252, § 3, 1923 Conn. Pub. Acts 3707,
3707; Del. Rev. Code tit. 15, ch. 97, § 13 (1852); Act of Nov. 18, 1858, § 1, The Laws of
the Corporation of the City of Washington 418 (William B. Webb, ed., 1868); A Digest of
(Continued)

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the Laws of the State of Florida 403 (James F. McClellan, ed., 1881); Act of Dec. 25, 1837,
1837 Ga. Laws 90; Act of Mar. 19, 1913, No. 22, 1913 Haw. Sess. Laws 25; Act of Feb.
17, 1909, H.B. No. 62, 1909 Idaho Sess. Laws 6; Act of Apr. 16, 1881, § 4, 1881 Ill. Laws
73, 74; Act of Apr. 19, 1913, ch. 297, 1913 Iowa Acts 307; Act of Jan. 14, 1820, ch. XXIII,
1819 Ind. Acts 39; Act of March 4, 1881, ch. XXXVII, § 23, 1881 Kan. Sess. Laws 79, 92;
Act of Mar. 25, 1813, 1812 La. Acts 172; Me. Stat. Rev. tit. XII, ch. 169, § 16 (1840); Act
of Feb. 26, 1872, ch. 42, 1872 Md. Laws 56; Act of May 31, 1887, No. 129, 1887 Mich.
Pub. Acts 144; Minn. Penal Code § 334 (1889); Act of Feb. 28, 1878, ch. XLVI, 1878
Miss. Laws 175; Act of Mar. 5, 1883, 1883 Mo. Laws 76; Act of Jan. 11, 1865, 1864 Mont.
Laws 355; An Act to Adopt and Establish a Criminal Code for the Territory of Nebraska,
ch. 1, § 135, 1858 Neb. Laws 41, 69; Act of Jan. 14, 1853, 1852 N.M. Laws 67; Act of
Mar. 27, 1891, ch. 105, § 209, 1891 N.Y. Laws 127, 176–77; N.D. Rev. Code § 7313
(1895); Act of Mar. 18, 1859, 1859 Ohio Laws 56; Penal Code of the Territory of
Oklahoma, ch. XXV, art. 39, § 20, 1890 Okla. Sess. Laws 412, 476; Act of Dec. 22, 1853,
ch. XVI, § 17, 1853 Or. Laws 184, 220; Act of Apr. 8, 1851, No. 239, § 4, 1851 Pa. Laws
381, 382; Act of May 3, 1893, ch. 1180, 1893 R.I. Pub. Laws 231; Act of Dec. 24, 1880,
No. 362, § 1, 1880 S.C. Acts 447; S.D. Rev. Penal Code § 471 (1903); Act of Oct. 19,
1821, ch. XIII, 1821 Tenn. Pub. Acts 15; Act of Apr. 12, 1871, ch. XXXIV, § 1, 1871 Tex.
Gen. Laws 25 (1st Sess.); Wash. Rev. Code § 929 (1881); W. Va. Code ch. CXLVIII, § 7
(1870); Wis. Stat. Rev. tit. XXVII, ch. 175, § 18 (1858); Wyo. Stat. ch. XXXV, § 127
(1876). Some 19th-century laws also banned the sale or exchange of certain arms, including
most pistols. See, e.g., Act of Apr. 1, 1881, ch. XCVI, § 3, 1881 Ark. Acts 191, 192; Act
of Mar. 17, 1879, ch. XCVI, 1879 Tenn. Pub. Acts 135. These Acts have been carefully
laid forth in Robert J. Spitzer, Gun Law History in the United States and Second
Amendment Rights, 80 Law & Contemp. Probs. 55, 62 nn.34, 36, 63 n.48, 64 n.49 (2017).

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In addition to regulating firearms, legislatures targeted excessively dangerous
weapons such as Bowie knives,5 dirks, 6 sword canes,7 metal knuckles, 8 slungshots,9 and
5 See, e.g., Act of Jan. 27, 1838, ch. CXXXVII, 1837 Tenn. Pub. Acts 200
(forbidding sale or transfer of “any Bowie knife or knives, or Arkansas tooth picks, or any
knife or weapon that shall in form, shape, or size resemble a Bowie knife or any Arkansaw
tooth pick”); Act of Feb. 1, 1839, No. 77, § 1, 1838 Ala. Laws 67, 67 (outlawing concealed
carry of “any species of fire arms, or any bowie knife, Arkansaw [sic] tooth-pick, or any
other knife of the like kind, dirk, or any other deadly weapon”); Act of Feb. 28, 1878, ch.
XLVI, § 1, 1878 Miss. Laws 175, 175 (prohibiting concealed carry of “any bowie knife,
pistol, brass knuckles, slung shot or other deadly weapon of like kind or description” with
a self-defense exception); Act of Jan. 30, 1889, ch. 37, 1889 Tex. Gen. Laws 33 (outlawing
open and concealed carry of “any pistol, dirk, dagger, slung-shot, sword-cane, spear, or
knuckles made of any metal or any hard substance, bowie-knife, or any other kind of knife
manufactured or sold for purposes of offense or defense”). A full survey of laws regulating
Bowie knives is available in Section V(B) of David B. Kopel & Joseph G. S. Greenlee, The
History of Bans on Types of Arms Before 1900, 50 J. Legis. 223, 298–328 (2024).
6 Dirks are “fighting knives” that “come in a variety of sizes and shapes.” Kopel &
Greenlee, The History of Bans, at 328. See id. at 328–35 for a full range of dirk legislation
from the 19th century. Laws ranged from complete bans on carry; to bans on open and
concealed carry in certain locations and with bad intent; to bans on only concealed carry.
7 A sword cane is a “sword concealed in a walking stick.” Kopel & Greenlee, The
History of Bans, at 289. For a list of sword cane regulations from the 19th century, see id.
at 335–38. These included outright sales bans, bans on carry, and prohibitions on
brandishing in a threatening manner unless in self-defense.
8 Metal knuckles are “devices attached to one’s second through fifth fingers to make
the fist a more powerful weapon,” often made of brass. Kopel & Greenlee, The History of
Bans, at 359. Like with other excessively dangerous weapons, restrictions included bans
on sales and manufacture, as well as restrictions on carry and brandishing. See id. at 360–
64.
9 A slungshot comprises a weight fastened to the end of a chain or rope that can be
swung around to apply blunt force to an opponent. Kopel & Greenlee, The History of Bans,
at 344. Restrictions on slungshots were more severe and widespread than restrictions on
other excessively dangerous weapons, as more states banned the sale and possession of
slungshots than of any other weapon. Id. at 346–47, 351. Other states regulated manner of
carry and forbade brandishing. See id. at 347–50.

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sand clubs. 10 See Robert J. Spitzer, Gun Law History in the United States and Second
Amendment Rights, 80 Law & Contemp. Probs. 55, 62–68 (2017). These weapons were
particularly suitable for fighting and “popular[] with street criminals.” David B. Kopel &
Joseph G. S. Greenlee, The History of Bans on Types of Arms Before 1900, 50 J. Legis.
223, 345 (2024). Those who carried clubs, for instance, were called “devils and lurking
highwaymen.” Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 96.
Slungshots, too, “were a regular part of criminal weaponry,” and “gangsters could be
merciless in their use.” Id. at 97. Laws addressing these weapons ranged from outright bans
on their manufacture, sale, and possession; to enhanced criminal penalties for those who
used the weapons to commit crimes; to prohibitions on both open and concealed carry. See
supra nn.4–9. At least three-quarters of states also enacted brandishing laws, 11 which
generally barred “exhibit[ing]” these dangerous weapons “in a rude, angry or threatening
manner.” 12 A number of these regulations did, however, make exceptions for those who
10 A sand club “is a small bag of sand attached to a short handle” that was often used
by law enforcement officers and criminals. Kopel & Greenlee, The History of Bans, at 355–
56. States and localities enacted numerous restrictions on sand clubs, including categorical
bans on their manufacture and sale and bans on concealed carry. See id. at 356–57.
11 Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 99.
12 E.g., Act of Sept. 30, 1867, § 1, 1867 Ariz. Sess. Laws 21, 21; see also Act of
Mar. 13, 1875, ch. XVII, § 1, 1875 Ind. Acts 62 (Spec. Sess.).

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could demonstrate they had carried or brandished the weapon in reasonable anticipation of
being attacked.13
A handful of state supreme courts found these statutory regulations on especially
dangerous weapons to be consistent with the right to keep and bear arms. In Aymette v.
State, the Supreme Court of Tennessee sustained the conviction of a man who illegally
concealed a Bowie knife under his clothes, emphasizing that “[t]he Legislature . . . ha[s] a
right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the
citizens.” 21 Tenn. 154, 159 (1840). The state law was justified, in the court’s view, as it
existed “to preserve the public peace, and protect our citizens from the terror which a
wanton and unusual exhibition of arms might produce, or their lives from being endangered
by desperadoes with concealed arms.” Id.; see also Haynes v. Tennessee, 24 Tenn. 120,
122 (1844) (upholding conviction of concealed carrying of a “Mexican pirate-knife” and
noting that “[t]he design of the statute was to prohibit the wearing of bowie-knives, and
others of a similar description, which the experience of the country had proven to be
extremely dangerous and destructive to human life; the carrying of which by truculent and
evil-disposed persons but too often ended in assassination”); Cockrum, 24 Tex. at 402–03
13 See, e.g., 1880–1881 Ala. Laws 38, ch. 44 (banning concealed carry of bowie
knives, pistols, and air guns, but allowing “evidence, that the defendant has good reason to
apprehend an attack [to] be admitted . . . in justification of the offense”); 1871 Tex. Gen.
Laws 25, ch. 34 (banning all carry of “any pistol, dirk, dagger, slung-shot, sword-cane,
spear, brass-knuckles, [or] bowie knife,” with an exception for “immediate and pressing”
fear of unlawful attack); 1877 Mo. Laws 240 (forbidding the exhibit of “deadly weapon[s]
in a rude, angry, or threatening manner, not in the necessary defence of his family, person,
or property”). These and a variety of other laws with similar exceptions are documented in
Kopel & Greenlee, The History of Bans, at 287–368.

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(upholding penalty enhancement for homicides committed with a Bowie knife after noting
that the it was “an exceeding[ly] destructive weapon” and “the most deadly of all weapons
in common use”).
In sum, then, 18th and 19th century legislatures “passed laws in a number of states
that restricted the use or ownership of certain types of weapons,” once it “became obvious
that those weapons . . . were being used in crime by people who carried them concealed on
their persons and were thus contributing to rising crime rates.” Roth Declaration at 20.
These legislatures—in balancing individual rights and public peacekeeping—permitted
individuals to defend themselves with firearms, while ridding the public sphere of
excessively dangerous and easily concealable weapons that were primarily to blame for an
increase in violent deaths.
At the end of the 19th century, a different type of homicide began to emerge: mass
murder spurred by the commercial availability of weaponry that empowered individuals to
kill many people quickly. Dynamite, invented in 1866, was one such example. Lamont,
685 F. Supp. 3d at 109. Because it was rather cheap yet very destructive, it was favored by
violent activists and anarchists and was employed in a number of infamous bombings
between 1919 and 1920, including “the murder of 38 people and the wounding of 143 in
an attack on Wall Street, 36 dynamite bombs mailed to justice officials, newspaper editors,
and businessmen (including John D. Rockefeller), and a failed attempt to kill Attorney
General A. Mitchell Palmer and his family.” Roth Declaration at 38–39.
Another weapon that surfaced during the turn of the century was the semiautomatic
firearm, which became available to consumers in the 1890s. DeLay, The Myth of

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Continuity, at 49. Colt began marketing increasingly effective semiautomatic pistols,
culminating in the release of the M1911. Id. at 51. Fully automatic weapons quickly
followed, with the Thompson submachine gun being patented in 1920. Spitzer,
Understanding Gun Law History, 51 Fordham Urb. L.J. at 61. While the “Tommy gun”
was initially created for use in World War I as “‘purely a military weapon,’” it arrived on
the battlefield too late to gain any real traction during that conflict. Id. (quoting William J.
Helmer, The Gun That Made the Twenties Roar 75 (1st ed. 1969)). The Tommy gun was
marketed to civilians and police forces with little success, in part due to its expense and
lack of controllability. Id. at 61–62; Roth Declaration at 38. It instead became popular
during the interwar period “with criminals, especially bootleggers.” Kopel & Greenlee, The
History of Bans, at 287 n.490; Spitzer, Gun Law History, 80 Law & Contemp. Probs. at
68; Helmer, The Gun That Made the Twenties Roar, at 126 (“As a criminal’s weapon, the
Tommygun was an unqualified success. As a police weapon, it was such a flop that many
law-enforcement officials wished sincerely that it had never come off the drawing board.”).
Other military firearms that had been developed for World War I, such as the Browning
Automatic Rifle, similarly “found favor among criminals and gangsters in the 1920s and
early 1930s.” Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 63.
The upshot was that early 20th-century criminals gained access to weapons with
firepower not seen before in civilian life. Some models of the Tommy gun could “go
through a 100-round drum magazine in four seconds.” Id. at 61. The Browning Automatic
Rifle was a heavy machine gun that could fire up to ten rounds per second. See id. at 63.
Moreover, these firearms’ detachable magazines “empowered individual shooters to inflict

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far more damage on more people than had been possible with earlier technologies.” DeLay,
The Myth of Continuity, at 52. When the guns were used, “they exacted a devastating toll
and garnered extensive national attention,” becoming inextricably linked to notorious
crimes including the St. Valentine’s Day Massacre (seven gang members and associates
killed) and the Kansas City Massacre (four law enforcement officers and one prisoner
killed). Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 63; Roth
Declaration at 39; Encyc. Britannica, St. Valentine’s Day Massacre (Feb. 7, 2024); Fed.
Bureau of Investigation, Kansas City Massacre and “Pretty Boy” Floyd (last visited May
12, 2024). These national tragedies put pressure on government to do something about
machine guns.
Once again, legislatures responded. And though they enacted regulations in a later
century than the ratification of the Second and Fourteenth Amendments, the tide of
legislative responses to technological advances in weaponry has persisted throughout our
history. So, while we acknowledge that “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,” we see these 20th-century enactments as steps trod along a
well-worn path. Bruen, 597 U.S. at 36. These later-in-time regulations remain relevant in
tracing the broader and consistent story of our nation’s regulation of excessively dangerous
weaponry.
The Federal Explosives Act of 1917 regulated possession of dynamite and a wide
array of other explosives—regulations that were later expanded by the Organized Crime
Control Act of 1970. Pub. L. 65-68, 40 Stat. 385 (1917); Pub. L. 91-452, 84 Stat. 922

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(1970). As for semiautomatic and automatic weapons, a great number of jurisdictions took
action. At least 29 states enacted anti-machine-gun laws between 1925 and 1934, 14 and ten
states restricted semiautomatic weapons between 1927 and 1934. 15 At the federal level,
Congress banned possession in the District of Columbia of “any firearm which shoots
automatically or semiautomatically more than twelve shots without reloading.” Pub. L. No.
14 See Act of July 29, 1927, ch. 552, 1927 Cal. Stat. 938; Act of Feb. 25, 1931, ch.
249, 37 Del. Laws 813; Act of July 8, 1932, Pub. L. No. 72-275, 47 Stat. 650, 651–52
(D.C.); An Act to Regulate the Hunting of Wild Deer etc., ch. 6621, § 8, 1913 Fla. Laws
116, 117; Act of June 6, 1933, ch. 16111, § 1, 1933 Fla. Laws 623, 623; Act of Apr. 27,
1933, No. 26, § 7, 1933 Haw. Sess. Laws 35, 38–39 (Spec. Sess.); Act of July 2, 1931, S.B.
No. 18, 1931 Ill. Laws 452; Act of Mar. 9, 1927, ch. 156, 1927 Ind. Acts 469; Act of Apr.
19, ch. 234, 1927 Iowa Acts 201; Act of Nov. 28, 1933, ch. 62, 1933 Kan. Sess. Laws 76
(Spec. Sess.); Act of July 7, 1932, No. 80, 1932 La. Acts 336; Act of Apr. 27, 1927, ch.
326, 1927 Mass. Acts 413; Act of June 2, 1927, No. 372, § 3–4, 1927 Mich. Pub. Acts 887,
888–89; Act of Apr. 10, 1933, ch. 190, 1933 Minn. Laws 231; Act of June 1, 1929, H.B.
No. 498, 1929 Mo. Laws 170; Act of Apr. 29, 1929, ch. 190, 1929 Neb. Laws 673; Act of
Mar. 19, 1927, ch. 95, 1927 N.J. Laws 180; Act of Apr. 15, 1931, ch. 435, 1931 N.Y. Laws
1033; Act of Mar. 9, 1931, ch. 178, 1931 N.D. Laws 305; Act of Apr. 8, 1933, No. 64,
1933 Ohio Laws 189; Act of Mar. 10, 1933, ch. 315, 1933 Or. Laws 488; Act of Apr. 25,
1929, No. 329, 1929 Pa. Laws 777; Act of Apr. 22, 1927, ch. 1052, 1927 R.I. Pub. Laws
256; Act of Mar. 2, 1934, No. 731, 1934 S.C. Acts 1288; Uniform Machine Gun Act, ch.
206, 1933 S.D. Sess. Laws 245; Act of Oct. 25, 1933, ch. 82, 1933 Tex. Gen. Laws 219
(1st Called Sess.); Act of Mar. 22, 1923, No. 130, § 1, 1923 Vt. Acts & Resolves 127; Act
of Mar. 7, 1934, ch. 96, 1934 Va. Acts 137; Act of Mar. 6, 1933, ch. 64, 1933 Wash. Sess.
Laws 335; Act of June 5, 1925, ch. 3, 1925 W. Va. Acts 24, 30–32 (1st Extraordinary
Sess.); Act of May 28, 1929, ch. 132, 1928–1929 Wis. Sess. Laws 157. These laws are
compiled in Spitzer, Understanding Gun Law History, 51 Fordham Urb. L.J. at 64 n.38.
15 Act of Apr. 27, 1927, ch. 326, 1927 Mass. Acts 413; Act of June 2, 1927, No.
372, 1927 Mich. Pub. Acts 887, 888–89; Act of Apr. 10, 1933, ch. 190, § 1(a)–(b), 1933
Minn. Laws 231, 232; Act of Apr. 8, 1933, No. 64, 1933 Ohio Laws 189; Act of Apr. 22,
1927, ch. 1052, 1927 R.I. Pub. Laws 256; Uniform Machine Gun Act, ch. 206, 1933 S.D.
Sess. Laws 245; Act of Mar. 7, 1934, ch. 96, 1934 Va. Acts 137; Act of July 2, 1931, S.B.
No. 18, 1931 Ill. Laws 452; Act of July 7, 1932, No. 80, 1932 La. Acts 336; Act of Mar. 2,
1934, No. 731, 1934 S.C. Acts 1288. We thank Spitzer, Gun Law History, 80 Law &
Contemp. Probs. at 68, 70–71, for this compilation.

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72-275, 47 Stat. 650 (1932). The National Rifle Association endorsed the ban, announcing
its “desire [that] this legislation be enacted for the District of Columbia, in which case it
can then be used as a guide throughout the States of the Union.” S. Rep. No. 72-575, at 4–
6 (1932). Two years later, Congress enacted the National Firearms Act of 1934, which
severely curtailed the civilian possession and general circulation of automatic weapons, as
well as sawed-off shotguns, short-barreled rifles, and silencers. Pub. L. No. 73-474, 48
Stat. 1236 (1934). As Judge Wynn’s fine opinion in United States v. Price explained, and
as the Supreme Court recognized in Miller and Heller, such regulation accorded with the
historical understanding of the scope of the Second Amendment right. No. 22-4609, slip
op. at 9–11 (majority opinion).
Over the course of the 20th century, the dangers posed by semiautomatic weapons
began to manifest more potently as “a new generation of more expensive and more deadly
guns[] entered the criminal market.” Spitzer, Understanding Gun Law History, 51 Fordham
Urb. L.J. at 102. In the mid-to-late 20th century, a profound uptick in crime occurred. Law
enforcement at the time lamented that “[t]he ready availability of and easy access to assault
weapons by criminals has increased . . . dramatically”—a particular problem given that
standard-issue police weapons were “no match against a criminal armed with a semi-
automatic assault weapon.” H.R. Rep. No. 103-489, at 13–14 (1994). Simultaneously, the
nation’s mass shooting crisis was beginning to emerge, with a 1989 killing of five
schoolchildren in Stockton, California prompting public outcry about assault rifles. See
Charles Mohr, U.S. Bans Imports of Assault Rifles in Shift by Bush, N.Y. Times (Mar. 15,
1989). In response, President George H.W. Bush temporarily banned the import of assault

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rifles in 1989, and California became the first state to restrict the possession of assault
weapons that same year. See id. As the excessively dangerous nature of these weapons
became apparent, Congress enacted a ten-year ban on assault weapons and large-capacity
magazines in 1994. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No.
103-322, 108 Stat. 1796 (1994). Once again, citizens had called for something to be done
about the illicit use of excessively dangerous arms, and their elected representatives
responded. See DeLay, The Myth of Continuity, at 55 (“Technological changes provoking
social concerns that lead to public safety legislation. That is the nation’s tradition of
firearms regulation.”).
* * *
Taking a long view of this history, a definable arc of technological innovation and
corresponding arms regulation begins to emerge. Whether these laws and regulations were
wise or effective is surely a matter of debate. The point is, however, that legislatures were
not disabled constitutionally from enacting them. Spurred often by the demands of the
military for use in international armed conflict, weapons became progressively
sophisticated and capable of inflicting enormous offensive harm. Arms, for example, were
far more advanced at the end of The Great War and World War II than they were at the
start of those conflicts. Once introduced to stop an oncoming battlefield foe, firearms
frequently transitioned to civilian use and became capable of inflicting greater harms in a
lessened time period. The Cold War and contemporary competition between great powers
have not diminished arms competition. To the contrary, if the pace of innovation today is
any indication, this is just the beginning.

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Throughout this history lies a strong tradition of regulating those weapons that were
invented for offensive purposes and were ultimately proven to pose exceptional dangers to
innocent civilians. In documenting the course of weapons regulations, we see states and
localities responding to the calls of their citizens to do something about the horrors wrought
by excessively dangerous weapons, while preserving the core right of armed self-defense.
When violence surged in the public square, states and localities responded by regulating
the manner of carry; forbidding brandishing; and banning the sale, manufacture, and
possession of weapons that were particularly useful for offensive and criminal purposes.
And as some modern firearms became capable of inflicting mass horrors, government did
not hesitate to circumscribe their possession while leaving intact the right to own weapons
more suitable to the Second Amendment’s purpose of personal protection.
The Maryland statute at issue is yet another chapter in this chronicle. It only
regulates weapons that are ill-suited for and disproportionate to the objective of self-
defense, while honoring the right of Americans to possess arms more compatible with the
Second Amendment’s purpose. The legislation is a direct response to the calls of citizens
who fear it is only a matter of time before mass violence will afflict their communities
absent government intervention. In heeding their outcry, Maryland is in the company of
centuries of state governments that have done the same.
The Supreme Court has made clear that the Second Amendment is an integral
component of the Bill of Rights. But as our nation’s history has shown, it is “neither a
regulatory straightjacket nor a regulatory blank check.” Bruen, 597 U.S. at 30. The
Amendment has not disabled the ability of representative democracy to respond to an

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urgent public safety crisis. To disregard this tradition today—when mass slaughters
multiply and the innovation of weaponry proceeds apace—could imperil both the
perception and reality of well-being in our nation. We therefore hold that Maryland’s
regulation of assault weapons is fully consistent with our nation’s long and dynamic
tradition of regulating excessively dangerous weapons whose demonstrable threat to public
safety led legislatures to heed their constituents’ calls for help.
V.
When our Founders bravely coalesced around that revolutionary piece of
parchment, quill pens in hand, they certainly sought to protect the citizenry’s inherent
liberties from the often oppressive hand of government. At the same time, though, our
Founders organized their fellow countrymen into a civilized society with an elected
government, which necessarily entailed the ceding of unadulterated freedom for the
nation’s common good. See John Locke, Two Treatises of Government (1689). Much as
the branch of a willow offers a gentle bend so that the wind may blow and the birds may
nest, so too did our predecessors craft a political community in which rights must
sometimes bend to better accommodate the rights of others.
One way in which our nation agreed to temper our individual liberties was by
accepting that the pre-existing rights codified within our Constitution came with inherent
qualifications crafted through centuries of common law. The Second Amendment was no
exception. The right to keep and bear arms must be read within the context of how the
Framers conducted this balancing of individual rights with societal prerogatives when they
enacted the Second Amendment. Far from disturbing this basic balance, Heller and Bruen

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reaffirmed it, making clear that lower courts are duty bound to apply the terms of the
balance enshrined in the Constitution’s text, not to dictate such terms themselves. The
language of entitlement is qualified by the language of limitation in those opinions, and we
are bound to respect both.
The founding generation’s understanding that the Second Amendment codified a
right that is less than absolute is all the more important today, when modern armaments are
increasingly used for crimes so mean and vile that it is difficult even to read about them.
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. The Second Amendment, as elucidated by Heller and Bruen, does not
require courts to turn their backs to democratic cries—to pile hopelessness on top of grief.
We shudder to imagine the hubris with which a court would disable representative
government at the very moment that lethal technologies are proceeding at an accelerated
and indeed unprecedented pace. In 79 A.D., the Roman Emperor Vespasian proclaimed,
“Woe is me, I think I am becoming a god.” Oxford Concise Dictionary of Quotations 386
(Susan Ratcliffe ed., 6th ed. 2011). The Supreme Court, in alluding to the balance struck
by our own founding generation, has avoided a judicial environment where Vespasian
would fit right in.
The Framers recognized they could not foresee all the dangers that novel weaponry
would someday pose, or the circumstances that would invoke the basic power of

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government to protect the governed. Maryland is a testament to their prescience, though
other states with other characteristics and other approaches to this problem may be as well.
We have before us nothing more or less than a challenge to one state’s regulation of assault
weapons. Following Heller and Bruen, we hold that the Maryland statute is plainly a
constitutional enactment.
VI.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.

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DIAZ, Chief Judge, with whom Judges KING, WYNN, THACKER, BENJAMIN, and
BERNER join, concurring:
In the wake of one of this country’s most horrific mass shootings, Maryland’s
legislature acted. Using the considerable police power afforded to it by our Constitution,
and heeding the pleas for action of its constituents, the State banned the type of weapon
(and similar weapons) that had been used to gun down twenty children and six staff
members at Sandy Hook Elementary School.
Judge Wilkinson’s masterful and eloquent opinion for the majority (which I join in
full) explains why Maryland’s ban “peaceably coexist[s]” with the Second Amendment’s
text, Majority Op. at 13, adheres to our Nation’s “strong tradition of regulating excessively
dangerous weapons,” id., and satisfies well-understood notions of federalism meant to be
abridged only sparingly and with good reason. I write briefly to comment on how this case
lays Bruen’s challenges bare.
As my colleagues have explained, Bruen “[r]eject[ed] the means-end approach”
many lower courts had used after Heller in favor of a “two-step methodology oriented
towards text, history, and tradition.” 1 Majority Op. at 11; see also Dissenting Op. at 109–
10. First, a court “looks to the text of the Second Amendment to see if it encompasses the
desired conduct at issue.” Majority Op. at 11 (citing Bruen, 597 U.S. at 24). If it doesn’t,
then we all go home. But if it does, then “the analysis moves to the second step, where the
1 Bruen appears to have rejected the post-Heller two-step test as “one step too
many,” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 19 (2022), only to replace
it with another two-step test.

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burden shifts to the government to ‘justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm regulation.’” Id. at 11–12
(quoting Bruen, 597 U.S. at 24). Easy enough.
Except that it hasn’t been. Bruen has proven to be a labyrinth for lower courts,
including our own, 2 with only the one-dimensional history-and-tradition test as a compass.
Questions abound at the framework’s two steps, so that “courts, operating in good faith,
are struggling at [each] stage of the Bruen inquiry.”3 Others have well summarized many
of these consequential gaps, so I won’t belabor them here.4 But courts, tasked with sifting
through the sands of time, are asking for help. And the Supreme Court’s recent attempt to
decipher the Bruen standard in United States v. Rahimi, 144 S. Ct. 1889 (2024), offered
little instruction or clarity about how to answer these persistent (and often, dispositive)
questions.
Look no further for a front row seat to this confusion than the principal opinions
authored today. Each was written by a thoughtful colleague, who engaged in an exhaustive
2 See, e.g., United States v. Price, No. 22-4609, slip op. at 39 (Quattlebaum, J.,
concurring) (acknowledging a “puzzle” in whether courts assess a firearm’s “common
use”—a “limit to the Second Amendment[’s]” protection—“at Bruen’s first or second
step”).
3 United States v. Daniels, 77 F.4th 337, 358 (5th Cir. 2023) (Higginson, J.,
concurring), cert. granted, judgment vacated, No. 23-376, 2024 WL 3259662 (U.S. July 2,
2024).
4 See, e.g., id.; see also Rahimi, 144 S. Ct. at 1926–30 (Jackson, J., concurring).

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sweep of history, only to reach diametrically opposed conclusions about what that history
means.
I think my friend Judge Wilkinson has the far better of the argument. His robust
textual analysis and nuanced historical survey each offer—at least in this case—“a way to
bring discipline to the increasingly erratic and unprincipled body of law that is emerging
after Bruen.” Id. at 1929 (Jackson, J., concurring) (cleaned up).
But if courts are to apply and replicate precedent consistently, then either the Bruen
framework is failing, or we are. And if the cacophony of decisions we’ve seen post-Bruen
is any indication,5 then confusion isn’t simply a bug of the framework—it’s a feature, even
if unintended. Hewing true to our oaths, we’ve done our best to apply Bruen faithfully, but
the law shouldn’t work like this.
Particularly so given the horrific consequences. Gun violence generally is, and mass
shootings specifically are, on the rise. 6 In fact, gun violence is seen by at least some experts
as an epidemic.7 Technological advances in guns have moved them ever farther from the
5 See, e.g., Jacob D. Charles, The Dead Hands of a Silent Past: Bruen, Gun Rights,
and the Shackles of History, 73 Duke L.J. 67, 129–45 (2023) (describing common obstacles
courts face in implementing Bruen and the “divergent conclusions” those courts have
reached).
6 John Gramlich, What the data says about gun deaths in the U.S., Pew Research
Center (Apr. 26, 2023), https://www.pewresearch.org/short-reads/2023/04/26/what-the-
data-says-about-gun-deaths-in-the-u-s/ [https://perma.cc/U8B8-KGWR]; see also The
Violence Project, Mass Shooter Database (database updated Jan. 2024).
7 Ellen Barry, Surgeon General Declares Gun Violence a Public Health Crisis, N.Y.
Times (June 24, 2024); see also Firearm Violence in the United States, Johns Hopkins
Bloomberg School of Public Health, Center for Gun Violence Solutions,
(Continued)

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Second Amendment’s revolutionary-era musket to something unrecognizably faster, more
accessible, and more lethal. 8 One such weapon, whose popularity seemingly knows no
bounds, is the AR-15.
The court’s principal opinions describe the AR-15’s history, its popularity, its
firepower, its destructiveness, its lawful uses, and its unlawful ones. They illustrate, quite
persuasively, why the AR-15 has become the chosen weapon of mass shooters and
terrorists. See, e.g., Dissenting Op. at 164–65 (describing the AR-15’s superiority to a
handgun and other rifles because of its balance of force, accuracy, controlled recoil, and
maneuverability); see also id. at 165 (“The AR-15’s perceived superiority is aided by many
features that make it wieldable for people of all ages and sizes.”). “Indeed,” as Judge
Wilkinson explains, the “AR-15 or AK-47 type assault rifles covered by the Maryland
regulations have been used in every major terrorist attack on U.S. soil in the past decade.”
Majority Op. at 33–34 (recounting terrorist incidents in San Bernadino, Orlando,
Pittsburgh, El Paso, and Buffalo).9
https://publichealth.jhu.edu/center-for-gun-violence-solutions/research-reports/firearm-
violence-in-the-united-states [https://perma.cc/U9LL-U3MS] (last accessed July 19,
2024).
8 A gun owner might say that more advanced weapons may better serve self-defense
ends. It’s a fair point, and is exactly why history alone cannot and should not dictate the
outcome in a case such as this, and why the legislature, as here, can balance competing
public safety and self-defense interests in a democratic forum.
9 We saw the cycle repeat itself on Saturday, July 13, when a former President of
the United States, at a crowded campaign event and protected by the Secret Service, was
nearly assassinated by an AR-15. Tragically, one man was killed, and two others were
(Continued)

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The “history-only” view of my dissenting colleagues, while cleaving to all of
Bruen’s strictures and none of its oxygen, would dismiss these public safety concerns of
today as untethered to the discernible legislative footprints of 250 years ago.10 In their
mind, because the modern regulation addressing those public safety concerns has cosmetic
differences with its historical precursor, or imposes a slightly different burden, the
legislature is helpless to act. 11
That cannot be. Why even have a ballot box when our laws are fossilized in a history
book? That’s no way to foster a democracy, but it’s an effective way to paralyze one.
Of course, the Court doesn’t require “a law trapped in amber,” Rahimi, 144 S. Ct.
at 1897, demanding only a historical “principle, not a mold,” id. at 1925 (Barrett, J.,
concurring). Whatever those instructions mean on the ground, Maryland has responded to
current public safety concerns, consistent with historical principles supporting the
regulation of dangerous weapons.
critically wounded. The Assassination Attempt Against Donald Trump, N.Y. Times (July
14, 2024).
10 My dissenting colleagues insist that the Second Amendment’s mandate is
“absolute” and “unequivocal.” Dissenting Op. at 85. That may describe their approach to
modern firearms regulation, but it’s not the one dictated in Bruen. 597 U.S. at 21 (“Like
most rights, the right secured by the Second Amendment is not unlimited.” (quoting Dist.
of Columbia v. Heller, 554 U.S. 570, 626 (2008) (decapitalization removed)). The Second
Amendment isn’t a second-class right, but neither is it sacrosanct.
11 And if the retort is that a state may act in other ways to protect its citizens, the
dissent’s author struck down just such an attempt—a handgun licensing regime passed by
the Maryland legislature. Maryland Shall Issue, Inc. v. Moore, 86 F.4th 1038, 1040 (4th
Cir. 2023), reh’g en banc granted, No. 21-2017(L), 2024 WL 124290 (4th Cir. Jan. 11,
2024).

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Although we “offer no view,” Majority Op. at 4, on whether Maryland’s legislative
approach is the right one, we do conclude that its representatives acted with both its
constituents, and our country’s history, in proper view.
* * * *
At a June 12 high school graduation in Newtown, Connecticut, twenty names were
called, though no student crossed the stage. 12 They had never left their first-grade
classrooms. All because of one man, six minutes, and an AR-15. This chilling episode
(and many like it) should give us pause.13 It gave the people of Maryland pause and
propelled its legislature to act.
It is neither a “trope[]” nor “hyperbole,” Dissenting Op. at 166, to recite truthfully
the carnage wrought by such weapons. And we refuse today to shackle Maryland’s
representatives as they work in good faith to stop the bloodshed.
History should guide. The Constitution should anchor. But neither should drown
us.
12 Claire Fahy, Sandy Hook Victims are Remembered on Day They Would Have
Graduated, N.Y. Times (June 13, 2024).
13 The majority describes similar such massacres that required even less time to
exact a devastating toll. See Majority Op. at 46–47 (detailing that a lone shooter needed
only thirty-two seconds to murder nine people and injure seventeen in Dayton, Ohio, and
that another needed only two minutes to kill ten people and injure three in Buffalo, New
York).

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GREGORY, Circuit Judge, concurring in the judgment:
In the interim between the Supreme Court’s decisions in District of Columbia v.
Heller, 554 U.S. 570 (2008) and New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597
U.S. 1 (2022), our Circuit assessed Second Amendment challenges under a two-part
framework that considered the history of the Second Amendment right as well as the
government’s interests in protecting its citizens. Kolbe v. Hogan, 849 F.3d 114, 133 (4th
Cir. 2017), abrogated in part by Bruen, 597 U.S. 1. In Bruen, the Supreme Court rejected
the latter portion of that framework as “one step too many,” and held that the government
may not justify a firearms regulation on the basis that it promotes an important interest.
Bruen, 597 U.S. at 17. Rather, the Court said, a regulation can survive a Second
Amendment challenge only if the government can demonstrate that the challenged
regulation is consistent with our country’s historical tradition of firearm regulation. Id.
As I read it, that binding precedent instructs that we refrain from balancing the right
guaranteed by the Second Amendment against the general governmental interests of safety
and order, and instead confine our analysis to history and tradition. Id. at 17, 19. Because
I believe the majority did not adhere to that instruction, I cannot join the majority’s opinion.
But because Maryland’s statute is relevantly similar to historic weapons prohibitions, I
concur in the judgment.
I.
My colleagues in the majority suggest that, under Bruen, the plain text of the Second
Amendment limits its purview to weapons “in common use today for self-defense.” Majority

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Op. at 39, 41. In their estimation, only “those weapons that are typically possessed by
average Americans for the purpose of self-preservation and are not ill-suited and
disproportionate to achieving that end” are entitled to constitutional protection. Id. at 41.
At the other end of the spectrum, my colleagues in the dissent read Bruen much
more broadly and posit that any weapon in common use for lawful purposes is necessarily
not dangerous and unusual at step two, and is, therefore, automatically protected by the
Second Amendment. Dissenting Op. at 144. Based on that interpretation, the dissent
maintains that because millions of people across the country own the semiautomatic rifles
challenged here, the Constitution prohibits Maryland from banning those weapons. Id. at
153.
I disagree with both positions. I do not read Bruen to define “arms” as narrowly as
the majority does or to otherwise cabin the Second Amendment right to effectively cover
only handguns and the like. Nor do I share in the dissent’s view that under Bruen a
legislature may only prohibit weapons that are not in common use for lawful purposes and
particularly useful for criminal activity. Dissenting Op. at 145. Rather, as I see it, Supreme
Court precedent and the historical tradition require courts to examine a firearm with regard
to more than its utility for self-defense or lawless behavior in determining whether the
weapon is dangerous and unusual.
The Supreme Court has not yet defined the purview or instructed on the proper
placement of the dangerous and unusual analysis. In that vacuum, courts have struggled
to interpret the scope of the constitutional right to bear arms as informed by Bruen and
other Supreme Court precedent. Bruen itself bears much of the responsibility for that

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Herculean exercise. In determining that New York could not prohibit possession of
handguns under the tradition of prohibiting dangerous and unusual weapons the Supreme
Court explained:
Whatever the likelihood that handguns were considered “dangerous and
unusual” during the colonial period, they are indisputably in “common use”
for self-defense today. They are, in fact, “the quintessential self-defense
weapon.” Thus, even if these colonial laws prohibited the carrying of
handguns because they were considered “dangerous and unusual weapons”
in the 1690s, they provide no justification for laws restricting the public carry
of weapons that are unquestionably in common use today.
Bruen, 597 U.S. at 47. As a threshold matter, the Supreme Court’s conclusion, as expressed
in that portion of the opinion, must be read with the understanding that (1) the statute at
issue in Bruen prohibited most New Yorkers from possessing any firearm, and (2) the
Supreme Court had previously recognized handguns as the “quintessential self-defense
weapon.” See id. at 47; see also Heller, 554 U.S. at 629 (stating that “the American people
have considered the handgun to be the quintessential self-defense weapon).
With that context in mind, I understand the Supreme Court’s statement as simply
clarifying that if the Second Amendment is to have any teeth, firearms regulations cannot
completely prohibit citizens from possessing handguns generally, which New York’s
statute effectively did. Nothing in that quote, elsewhere in Bruen, or in any other
precedential Second Amendment case forecloses the conclusion that a class of firearms in
common use can be prohibited because they are dangerous and unusual, or that a person
may possess a weapon that is not in common use for self-defense.
Rather, I interpret the Supreme Court’s precedent to date as establishing that the
Second Amendment presumptively protects all bearable arms, but history supports

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regulation of arms that are dangerous and unusual, including but not limited to, those arms
not presently in common use. See Heller, 554 U.S. at 582 (explaining that the Second
Amendment “extends, prima facie, to all instruments that constitute bearable arms, even
those that were not in existence at the time of the founding.”); id. at 627 (recognizing that
the historical tradition of prohibiting “dangerous and unusual” weapons “fairly support[s]”
excluding weapons “not in common use at the time” from Second Amendment protection);
see also Bruen, 597 U.S. at 21.
Under that interpretation, a statute that prohibits possession of a weapon in common
use for a lawful purpose is not per se unconstitutional. Similarly, a statute that regulates
weapons not in common use for self-defense does not automatically fall outside of the
Second Amendment’s protection. Our analysis therefore does not necessarily begin and
end with determining whether the weapon or weapons covered under a challenged statute
are in common use—be it for lawful purposes or self-defense—as my colleagues suggest.
Majority Op. at 39, 41; Dissenting Op. at 145–46, 153. Rather, whether a weapon is in
common use is but one factor that we must consider in the Second Amendment analysis.
II.
As the dissent notes, data indicates that AR-style semiautomatic rifles represented
20% of all firearms sold in 2020, that at least 16 million Americans owned a semiautomatic
rifle at some point, and that over 50% of semiautomatic rifle owners indicated that they
own the weapon for self-defense, hunting, or another lawful purpose. Dissenting Op. at
149–50. That data suggests that these arms are widely circulated and possessed by millions

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of people throughout the nation for lawful purposes, including self-defense. Our Court
also acknowledged the popularity of AR-15s and similar semiautomatic rifles years ago in
Kolbe, and that popularity has only increased since. See Kolbe, 849 F.3d at 128–29
(acknowledging that “[t]he plaintiffs’ evidence reflect[ed] that, since it was first marketed
to the public in 1963, ‘[t]he AR-15 has become the most popular civilian rifle design in
America and is made in many variations by many companies’”). Given those facts, it is
clear that semiautomatic rifles are in common use for lawful purposes today.
* * *
I pause to note that despite “reaffirm[ing] the conclusion we reached in Kolbe that
[semiautomatic rifles covered under Maryland’s statute] are not constitutionally protected
arms,” presumably at step one, the majority conducted a Bruen step two analysis during
which it assessed whether semiautomatic rifles can be prohibited as dangerous and unusual.
In that analysis, the majority took liberty to extensively discuss mass shootings and other
criminal uses of semiautomatic rifles of the type covered under Maryland’s statute. See
e.g. Majority Op. at 32–36, 45–47. The majority also referred to “a strong tradition of
regulating those weapons that were invented for offensive purposes and were ultimately
proven to pose exceptional dangers to innocent civilians.” Id. at 62.
Elsewhere, the majority claimed that “our society has deemed that giving people the
capacity to use large amounts of force at a moment’s notice in a sensitive place is not worth
the danger that they will unlawfully deploy such force against innocent civilians or public
figures there.” Id. at 20. According to the majority, those limitations, “reflect a careful
balancing of interests between individual self-defense and public protection from excessive

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danger that existed within the meaning of the phrase the right to keep and bear arms” when
the Second Amendment was ratified. Id. The majority again mentioned the “careful
interest balancing between individual self-defense and societal order” immediately before
discussing its view of “dangerousness and unusualness” later in its opinion. Id. at 40–41.
In my view, the majority’s analysis is comprised of the very sort of means-end
scrutiny that Bruen explicitly forbids courts from applying in the Second Amendment
context. Bruen, 597 U.S. at 19; see also id. at 29 n.7 (stating that the step two analysis
does not give courts license to “engage in independent means-end scrutiny under the guise
of an analogical inquiry . . . Analogical reasoning requires judges to apply faithfully the
balance struck by the founding generation to modern circumstances . . . It is not an
invitation to revise that balance through means-end scrutiny”). Indeed, as one of our sister
circuits recently put it, “Bruen makes clear that the question whether a burden is
comparably justified cannot be answered by pointing to the gravity of the harms the
legislation was designed to avert and the appropriateness of the mechanism they adopt.”
Bevis v. City of Naperville, Illinois, 85 F.4th 1175, 1200 (7th Cir. 2023) (internal quotation
and citation omitted), cert. denied sub nom. Harrel v. Raoul, 144 S. Ct. 2491 (2024).
That said, we cannot ignore the horrific tragedies the majority highlights in its
opinion. Over the past two decades, our nation has in fact suffered at the hands of those
who elected to inflict turmoil on innocent victims, communities, and our society overall.
Unfortunately, our nation’s citizens are faced with the fear that we, or our loved ones, may
be harmed while shopping for groceries, enjoying outside entertainment, taking a class,
attending a religious service, or otherwise engaging in what should be a safe activity. I am

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sympathetic to the very troubling realities on which the majority sheds light. However, I
believe that binding precedent prohibits us from considering those tragedies, or a
legislature’s interest in limiting or preventing them, when assessing the validity of a statute
that implicates the Second Amendment.
To me, Bruen dictates that, despite the concerns plaguing society, in determining
whether Maryland’s statute is constitutional, we must limit our consideration to history and
tradition to determine whether the government has demonstrated that Maryland’s statute is
analogous to a historic weapons prohibition. Bruen, 597 U.S. at 19 (stating that Supreme
Court precedent “do[es] not support applying means-end scrutiny in the Second
Amendment context”); see also id. at 22 (recognizing that the Court has “rejected the
application of any judge-empowering interest-balancing inquiry that asks whether the
statute burdens a protected interest in a way or to an extent that is out of proportion to the
statute’s salutary effects upon other important governmental interests”). Against that
backdrop, I now proceed to the step two analysis.
III.
Under Bruen, if a statute regulates conduct covered by the Second Amendment, the
government must justify the challenged statute at step two by proving that it “comport[s]
with the principles underlying the Second Amendment.” United States v. Rahimi, 144 S.
Ct. 1889, 1898 (2024) (citing Bruen, 597 U.S. at 30). Notably, the government is not
required to identify a historical prohibition that is a “dead ringer” or a “historical twin” to
survive a Second Amendment challenge. Id. Rather, the government need only

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demonstrate that its prohibition “is consistent with the principles that underpin our
regulatory tradition.” Id.
How and why the challenged statute burdens the Second Amendment right are
significant considerations in determining whether the law is “relevantly similar” to a
historical analogue though they are not the only factors a court may consider in its
assessment. Id.; see also id. (“Why and how the regulation burdens the right are central to
this inquiry.”); Bruen, 597 U.S. at 29 (stating that the Court was not undertaking to
“provide an exhaustive survey of the features that render regulations relevantly similar
under the Second Amendment” but that Supreme Court precedent directs us to consider
“how and why” the regulation burdens the right).
Although our Court disagrees about much regarding the parameters of the Second
Amendment right and analysis, we all seem to agree that there is a historical tradition in
our nation of prohibiting dangerous and unusual weapons based on characteristics and
functions that caused the lawmakers of those times to classify them as dangerous and
unusual when compared to other weapons. Majority Op 20–21, 41; Dissenting Op. at 144.
In first recognizing that tradition, Justice Scalia cited several sources∗ documenting “affray
∗ See 4 Blackstone 148–149 (1769) (“The offense of riding or going armed, with
dangerous or unusual weapons, is a crime against the public peace, by terrifying the good
people of the land; and is particularly prohibited by the statute of Northampton, 2 Edw. III.
c. 3. upon pain of forfeiture of the arms, and imprisonment during the king’s pleasure: in
like manner as, by the laws of Solon, every Athenian was finable who walked about the
city in armor.”); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804) (“[T]here
may be an affray, where there is no actual violence; as where a man arms himself with
dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among
the people.”); J. Dunlap, The New–York Justice 8 (1815) (“It is likewise said to be an
(Continued)

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laws” and laws prohibiting “riding or going armed” with dangerous and unusual weapons.
Heller, 554 U.S. at 627. Notably, and contrary to the dissent’s focus on the term “carrying,”
Justice Scalia recognized protecting only weapons in common use as an “important
limitation on the right to keep and carry arms.” Id. (emphasis added). In my view, those
laws demonstrate that our nation has always permitted legislation regulating certain aspects
of the way in which an individual chooses to exercise his Second Amendment right. In
other words, although we all have the right to bear arms, a legislature may prohibit us from
exercising that right in a manner that could cause harm to or terror in others. Thus, at
minimum, the government could meet its burden in this case by analogizing the manner
affray, at common law, for a man to arm himself with dangerous and unusual weapons, in
such manner as will naturally cause terror to the people.”); C. Humphreys, A Compendium
of the Common Law in Force in Kentucky 482 (1822) (“Riding or going armed with
dangerous or unusual weapons, is a crime against the public peace, by terrifying the people
of the land which is punishable by forfeiture of the arms, and fine and imprisonment. But
here it should be remembered, that in this country the constitution guaranties to all persons
the right to bear arms; then it can only be a crime to exercise this right in such a manner,
as to terrify the people unnecessarily.”); 1 W. Russell, A Treatise on Crimes and Indictable
Misdemeanors 271 (1826) (“[I]t seems certain that in some cases there may be an affray
where there is no actual violence; as where persons arm themselves with dangerous and
unusual weapons in such a manner as will naturally cause a terror to the people; which is
said to have been always an offence at common law and is strictly prohibited by several
statutes.”); H. Stephen, Summary of the Criminal Law 48 (1840) (“Riding or going armed
with dangerous or unusual weapons . . . is a misdemeanor punishable with forfeiture of the
arms and imprisonment during the king’s pleasure”); E. Lewis, An Abridgment of the
Criminal Law of the United States 64 (1847) (“[W]here persons openly arm themselves
with dangerous and unusual weapons, in such a manner as will naturally cause a terror to
the people. Which is said to have always been an offence at common law, an affray may
be committed without actual violence.”); F. Wharton, A Treatise on the Criminal Law of
the United States 726 (1852) (“[T]here may be an affray where there is no actual violence;
as where a man arms himself with dangerous and unusual weapons, in such a manner as
will naturally cause a terror to the people which is said to have been always an offence at
common law, and is strictly prohibited by the statute.”).

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and reasoning that underscores Maryland’s statute to historical prohibitions of dangerous
and unusual weapons for reasons unrelated to their common use. But the dissent disagrees
that such an analogy would satisfy the government’s burden.
According to the dissent, in order to justify the challenged statute under the
historical tradition of regulating dangerous and unusual weapons, the government must
prove that semiautomatic rifles are not typically possessed by law-abiding citizens for
lawful purposes. Dissenting Op. at 144. That test is too narrow in that it equates common
use (which it seems to define based on the prevalence of the firearms in the public domain)
with usualness and cabins the Second Amendment analysis to determining whether a
weapon is in common use based on its utility for lawful and lawless purposes. I do not
believe that the Court’s precedents support such a limitation.
In fact, the Supreme Court has never said (or even implied) that weapons in common
use are necessarily not dangerous and unusual, that “not in common use” and “dangerous
and unusual” are synonymous, or that legislation that covers a weapon in common use is
per se unconstitutional. The Court has, however, said that according the protections of the
“right to keep and carry arms” only to those weapons “in common use at the time” is “fairly
supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual
weapons.’” Heller, 554 U.S. at 627; Bruen, 597 U.S. at 21. That guidance indicates that
those weapons not in common use may be banned under the tradition of prohibiting the
carrying of dangerous and unusual weapons. But it does not shield weapons in common
use from scrutiny concerning their dangerousness and unusualness. Thus, while a weapon
not in common use is deemed dangerous and unusual, it does not follow that a weapon in

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common use is not dangerous and unusual. Instead, “not in common use” is one criteria
that may be used to ban a weapon under the “dangerous and unusual” umbrella.
So what else falls under the umbrella? Given that neither the Supreme Court’s
precedents nor history clarify how we should interpret “dangerous and unusual” in
connection with the Second Amendment, I look to the ordinary meaning of the words at
the time the Second Amendment was ratified for guidance.
The 1773 edition of Samuel Johnson’s dictionary defined “dangerous” as
“Hazardous; perilous; full of danger,” and defined “unusual” as “Not common; not
frequent; rare.” Dangerous, 1 Dictionary of the English Language 106 (4th ed.) (reprinted
1978); Unusual, 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978).
Notably, nothing in these definitions directs our attention to the legality of the object to
which they refer, nor to the destruction in the wake of its usage. Rather, both individually
and collectively, dangerous and unusual, are used to describe the object to which they refer,
in its entirety and considering its characteristics. I see no reason why these words should
not be interpreted in connection with the Second Amendment in a manner consistent with
their ordinary meanings at the time the Amendment was ratified.
Moreover, it “would be a startling reading,” see Heller, 554 U.S. at 624, of those
definitions to assume that they do not apply to the object in its entirety—including its
characteristics, features, and functions. A firearm may therefore be dangerous for reasons
other than its suitability for unlawful purposes, such as its firing capability; or unusual for
reasons other than its rarity or numerosity as a whole, such as the object’s rare potency,
potentiality, or other unique function. And a legislature may ban a weapon equipped with

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functions that render it dangerous and unusual, irrespective of how many people own it.
That is exactly what the Maryland legislature elected to do here.
Maryland’s statute bans AR-15s and other semiautomatic rifles with characteristics
that make them excessively dangerous and highly unusual in society. We previously
considered the lethality of these sorts of weapons in Kolbe where we noted that the weapons
have “features designed to achieve their principal purpose—killing or disabling the enemy.”
Kolbe, 849 F.3d at 125 (internal quotations omitted). There, we recognized that these
weapons could shoot a large number of rounds at far distances at a high rate of speed, are
often capable of accepting large-capacity magazines, and use rounds that can pierce body
armor and most materials. Id. at 125, 127. We also determined that many of the features of
these weapons increase their utility for lethality. Id. at 137. We said:
flash suppressors, barrel shrouds, folding and telescoping stocks, pistol grips,
grenade launchers, night sights, and the ability to accept bayonets and large-
capacity magazines serve specific, combat-functional ends . . . the net effect
of [which] is a capability for lethality—more wounds, more serious, in more
victims—far beyond that of other firearms in general, including other
semiautomatic guns.
Id. We further noted that, despite only being a semiautomatic weapon (which requires
repeated trigger engagement), the AR-15’s rate of fire enables it to empty a thirty-round
magazine in as little as five seconds. Id. at 136.
The Seventh Circuit recently discussed the AR-15’s characteristics in assessing
challenges to an Illinois statute that prohibits weapons like those at issue here. Bevis, 85
F.4th at 1175. According to that court, the AR-15 has a semiautomatic rate of 300 rounds
per minute, an effective range (distance a bullet will travel with accuracy) of 602 to 875

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yards, a muzzle velocity (speed a bullet travels when fired) of 2800 to 3100 feet per second
and delivers the kinetic energy (energy transferred to the target on impact) of 1220 to 1350
foot-pounds. Id. at 1196. In layman’s terms, the AR-15 can hit a target several hundred
yards away in seconds and cause massive damage on impact. Additionally, given the
weapon’s features and the distance it can fire with accuracy, a shooter using this type of
weapon may be undetectable. The ability of these weapons to cause grave damage, from
a great distance, without detection make them dangerous and unusual in society at large.
Maryland’s ban is therefore consistent with the principles that underlie our nation’s
historical tradition of prohibiting dangerous and unusual weapons.
IV.
As courts continue to grapple with Bruen, unfortunately in the midst of successive
tragedies, we will no doubt see the boundaries of the historical tradition of regulating
dangerous and unusual weapons being defined. At this juncture, I would simply hold that
Maryland’s ban on certain semiautomatic rifles falls within the boundaries of our nation’s
historical tradition of regulating dangerous and unusual weapons, wherever those
boundaries may ultimately lie. I therefore concur in the judgment.

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RICHARDSON, Circuit Judge, with whom Judges NIEMEYER, AGEE,
QUATTLEBAUM, and RUSHING join, dissenting:
After the Supreme Court decided New York State Rifle and Pistol Ass’n v. Bruen,
597 U.S. 1 (2022), it remanded this case for us to determine whether Maryland’s “assault
weapons” ban violates the Second Amendment. Yet before the panel could issue its
opinion, our court voted to take the case en banc. Now, the majority decides that
Maryland’s ban is perfectly consistent with the Second Amendment. But the majority’s
rationale disregards the Second Amendment and controlling precedent. Rather than
considering the Amendment’s plain text, the majority sidesteps it altogether and concocts
a threshold inquiry divorced from the right’s historic scope. To make matters worse, it
then misconstrues the nature of the banned weapons to demean their lawful functions and
exaggerate their unlawful uses. Finally, to top it all off, the majority cherry-picks various
regulations from the historical record and pigeonholes them into its preferred—yet
implausible—reading of our Nation’s historical tradition of firearms regulation.
I respectfully dissent. The Second Amendment is not a second-class right subject
to the whimsical discretion of federal judges. Its mandate is absolute and, applied here,
unequivocal. Appellants seek to own weapons that are indisputably “Arms” within the
plain text of the Second Amendment. While history and tradition support the banning of
weapons that are both dangerous and unusual, Maryland’s ban cannot pass constitutional
muster as it prohibits the possession of arms commonly possessed by law-abiding citizens
for lawful purposes. In holding otherwise, the majority grants states historically
unprecedented leeway to trammel the constitutional liberties of their citizens.

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I. Background
Appellants challenge the constitutionality of Maryland’s ban on the possession, sale,
purchase, transfer, or receipt of an “assault weapon,” with some minor exceptions not
relevant here. Md. Code Ann., Crim. Law § 4-303. The ban defines “assault weapon” to
include both a specific list of centerfire rifles and all semiautomatic centerfire rifles that
have one of three criteria: (1) a fixed magazine that can hold more than ten rounds; (2) an
overall rifle length under twenty-nine inches; or (3) a detachable magazine and at least two
of a folding stock, grenade or flare launcher, or flash suppressor. Id. § 4-301(h); Md. Code
Ann., Pub. Safety § 5-101(r)(2). 1 Our Court, sitting en banc, held that this ban did not
violate the Second Amendment in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc).
When Appellants filed their complaint in 2020, their challenge was foreclosed by
Kolbe. They admitted as much, acknowledging that they sought to have Kolbe overturned
by us or the Supreme Court. Maryland filed an answer and sought to proceed to discovery,
but the district court sua sponte dismissed the complaint for failure to state a claim because
Kolbe was binding, on-point precedent. We affirmed. Bianchi v. Frosh, 858 F. App’x 645
(4th Cir. 2021). Appellants then petitioned for certiorari and, after the Supreme Court
decided Bruen, the Court granted the petition, vacated our panel opinion, and remanded
the case for reconsideration. Bianchi v. Frosh, 142 S. Ct. 2898 (2022).
1 The ban also prohibits the ownership of “assault pistols” and certain shotguns.
Md. Code Ann., Crim. Law §§ 4-301(d), (h), 4-303; Md. Code Ann., Pub. Safety § 5-
101(r)(2). In their complaint, Appellants challenged these provisions as violating the
Second Amendment. But in this appeal, Appellants only challenge the ban on
semiautomatic rifles.

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On remand, we ordered the parties to provide supplemental briefing addressing
Bruen’s impact on the case. A panel then heard oral argument on December 6, 2022. But
after more than thirteen months of delay, the judges of this Court took the case from the
assigned panel and granted initial hearing en banc. 2 We then requested more briefing, and
we held en banc oral argument on March 20, 2024.
II. Maryland’s ban violates the Second Amendment.
This case is our en banc Court’s first attempt to implement the Supreme Court’s
decision in Bruen. It is incumbent on us to do so correctly and faithfully to our original
law. So I begin by examining the historical background of the Second Amendment before
turning to the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570
(2008), Bruen, and, most recently, United States v. Rahimi, 144 S. Ct. 1889 (2024). Next,
I explain why our decision in Kolbe departed from Heller and was abrogated by Bruen. I
then examine the tradition of prohibiting dangerous and unusual weapons and conclude
2 This unorthodox procedural posture bears some explanation. After hearing the
case in December 2022, the initial panel majority reached a decision and promptly
circulated a draft opinion. Yet for more than a year, no dissent was circulated. The panel
thus held the proposed opinion in accordance with our custom that majority and dissenting
opinions be published together. A year later—as the proposed opinion sat idle—a different
panel heard arguments in United States v. Price (No. 22-4609), which also involved
interpreting and applying Bruen. The Price panel quickly circulated a unanimous opinion
that reached a conclusion at odds with the Bianchi majority’s year-old proposed opinion.
Facing two competing proposed published opinions, the Court declined to let the earlier
circulated opinion control. Rather, in January 2024, we “invoked the once-extraordinary
mechanism of initial-en-banc review.” Mayor of Balt. v. Azar, 799 F. App’x 193, 195–96
(4th Cir. 2020) (Richardson, J., dissenting). I hope that we will not find ourselves in this
posture again soon. Cf. United States v. Gibbs, 905 F.3d 768, 770 (4th Cir. 2018) (Wynn,
J., voting separately) (suggesting that majority opinions may be issued without awaiting
dissenting opinions to prohibit those dissenting opinions from exercising a “pocket veto”
to “deny or delay fairness and justice”).

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that Maryland’s ban is not justified by this tradition, since the tradition does not support a
complete ban on the possession of weapons that are commonly used for lawful purposes.
Finally, I respond to the majority’s novel and unfounded construction of the Second
Amendment and its application to this case.
A. The Second Amendment and Supreme Court Precedent
1. Historical Background of the Second Amendment
The Second Amendment provides: “A well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. Like many amendments, this text codified a preexisting
right. Heller, 554 U.S. at 592. Grasping its scope thus depends on an understanding of its
historical development.
For much of England’s history, the country had neither a standing professional army
nor a regular police force. Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of
an Anglo-American Right 2 (1994). The responsibility for maintaining peace, order, and
safety in the community fell primarily on the people themselves. Townsfolk would take
turns patrolling and keeping watch over the town by day and by night.3 When a felony
occurred, villagers were expected to raise the “hue and cry,” which would require all
3 The “watch and ward,” as this duty was called, was to be performed “by men able
of body, and sufficiently weaponed,” though persons unfit to serve could hire a substitute.
Malcolm, To Keep and Bear Arms, supra, at 4. It was first imposed on householders by a
1233 ordinance and was later consolidated by the Statute of Winchester in 1285. Id. at 4
n.6. Anyone who failed to perform this duty would be punished. Id. at 4.

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neighbors to pursue the fleeing suspect until he was captured.4 Local sheriffs could also
summon the posse comitatus—composed of every able-bodied male from ages fifteen to
sixty—to help pursue lawbreakers, suppress riots, and keep the public peace.5 Finally, for
large-scale emergencies like invasion or insurrection, the civilian militia could be
mobilized. 6 From everyday safeguards to emergency responses, the English people
4 The hue and cry dates back as far as the early Middle Ages, but, like the watch and
ward, it was formalized by the Statute of Winchester. Malcolm, To Keep and Bear Arms,
supra, at 2; David A. Sklansky, The Private Police, 46 UCLA L. Rev. 1165, 1196–97
(1999). When the cry was raised, all villagers—men, women, and children—were
expected to answer it, and anyone who failed to participate could be fined or imprisoned.
John H. Langbein, Renée Lettow Lerner & Bruce P. Smith, The History of the Common
Law: The Development of Anglo-American Legal Institutions 21–22 (2009); Joyce Lee
Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition,
10 Hastings Const. L.Q. 285, 291 (1983). Townsfolk would arrive with whatever weapons
they were required to keep and could use deadly force if necessary to prevent escape.
David B. Kopel, The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned
to the Aid of Law Enforcement, 104 J. Crim. L. & Criminology 761, 788–89 (2015).
5 Literally the “power and force of the country,” Kopel, The Posse Comitatus, supra,
at 789, the posse comitatus was a body of “uncompensated, temporarily deputized citizens
assisting law enforcement officers,” Gautham Rao, The Federal Posse Comitatus
Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America, 26 L.
& Hist. Rev. 1, 2 (2008). Although trained militia forces became the preferred mode of
keeping the peace by the seventeenth century, posses were still deployed occasionally until
the nineteenth century. Malcolm, To Keep and Bear Arms, supra, at 3; Kopel, The Posse
Comitatus, supra, at 791.
6 Sir William Blackstone claimed that King Alfred first organized the Anglo-Saxon
militia, 1 William Blackstone, Commentaries on the Laws of England *397, though some
recent scholarship suggests that it may have arisen earlier, Robert Leider, The State’s
Monopoly of Force and the Right to Bear Arms, 116 N.W. U. L. Rev. 35, 49 (2021). The
Statute of Winchester required every able-bodied man between fifteen and sixty to enroll
in the militia. Id. The militia was mostly a defensive force used to repel invasion and
suppress internal conflict, and it could not be taken outside the realm. Malcolm, To Keep
and Bear Arms, supra, at 4–5. (England traditionally enlisted or impressed professional
troops for foreign wars, or employed mercenaries, though it began to maintain a standing
(Continued)

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themselves were largely responsible for protecting the realm from internal and external
threats.
The people could only fulfill these duties if they owned arms and were skilled in
their use. Hence, English monarchs took great steps to ensure that the general populace
had the necessary armaments and skill to be mobilized when the need arose. Nathaniel
Bacon, A Historical and Political Discourse of the Laws and Government of England 40
(1682) (“[A]ll were bound upon call under peril of Fine, and were bound to keep Arms for
the preservation of the Kingdom, their Lords, and their own persons.”). For instance, the
Assize of Arms, enacted in 1181 during the reign of Henry II, classified the population by
income and required members of each class to own certain military weapons and armor.
See 27 Hen. 2, §§ 1–2 (1181). The Statute of Winchester later recodified these
requirements in 1285 and imposed mandatory militia service on all able-bodied males. See
13 Edw. St. 2 c. 6 (1285). Besides requiring private ownership of military weapons, the
Crown also obliged members of the militia to report for muster and military duty and to
engage in mandatory training sessions. Malcolm, To Keep and Bear Arms, supra, at 5–6;
Granville Sharp, Tracts Concerning the Ancient and Only True Legal Means of National
Defence, by a Free Militia 18 (3d ed. 1782) (“And indeed the laws of England always
required the people to be armed, and not only to be armed, but to be expert in arms . . . .”).
army in the seventeenth century. Leider, The State’s Monopoly of Force, supra, at 50.)
Starting in the late seventeenth century, it became common to raise and rely on smaller
militia groups with special training. Malcolm, To Keep and Bear Arms, supra, at 4–5.

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In England, then, arms keeping was a duty that facilitated the people’s responsibility to
protect their communities.
For our purposes, the pivotal period in English history is that between the
Restoration and the Glorious Revolution. Upon the return of the Stuart dynasty in 1660,
King Charles II recognized the need to secure his power against a population that had
recently beheaded his father. So he formed both a special militia and a private army of
loyal volunteers, which he then used to police opponents of his regime and confiscate their
weapons. Stephen Halbrook, That Every Man Be Armed: The Evolution of a
Constitutional Right 42 (rev. ed. 2013). The king’s efforts to disarm the broader population
were aided by the enactment of the Militia Act of 1662, which empowered royal officers
to search the homes and seize the arms of any person considered dangerous to the peace of
the kingdom, and the Game Act of 1671, which effectively disqualified most of the
population from keeping arms. Malcolm, The Right of the People, supra, at 301–05;
Heller, 554 U.S. at 592–93. Charles II’s successor, the Catholic James II, would later use
these same statutes to disarm his Protestant subjects and quarter his standing army among
them. Aymette v. State, 21 Tenn. (2 Hum.) 154, 157 (1840).
The tyrannical reign of the Stuarts brought about the Glorious Revolution, which
saw James II abdicate the throne for William of Orange and his wife, Mary. But the
experience under the Stuarts had revealed the danger of military force concentrated in the
Crown’s hands and the importance of having an armed populace to resist government
oppression. Heller, 554 U.S. at 593; Aymette, 21 Tenn. at 157. So the English people
sought and obtained assurances of their fundamental rights and liberties from their new

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monarchs. The Declaration of Rights, codified as the English Bill of Rights, lamented
James II’s attempt to overthrow “the Laws and Liberties of this Kingdom” by “causing
severall good Subjects being Protestants to be disarmed at the same time when Papists were
both Armed and Imployed contrary to law.” 1 W. & M., Sess. 2, c. 2 (1688). It then
declared as one of the thirteen “true, auntient and indubitable Rights and Liberties” that
“the Subjects which are Protestants may have Arms for their Defence suitable to their
Condition and as allowed by Law.” Id. The English Bill of Rights thus ensured that the
English people would be allowed “to defend their just rights[] and compel their rulers to
respect the laws.” Aymette, 21 Tenn. at 157.
By the American Founding, the English Bill of Rights was understood to enshrine
an individual right to keep arms for protection against public and private violence. Heller,
554 U.S. at 594. Blackstone explained that the right “of having arms”—declared by the
English Bill of Rights and derived from “the natural right of resistance and self-
preservation”—was an “auxiliary right” which “serve[d] principally as [a] barrier[] to
protect and maintain inviolate the three great and primary rights, of personal security,
personal liberty, and private property.” 1 Blackstone, supra, at *136, *139; 2 J.L. de
Lolme, The Rise and Progress of the English Constitution 886–87 (1784) (A. Stephens ed.,
1838). It ensured that Englishmen possessed arms “for their own defence” and could fulfill
their duty to assist “in the execution of the laws and the preservation of the public peace.”
William Blizard, Desultory Reflections on Police 60 (1785); Sharp, supra, at 27 (explaining
that the right to have arms existed “for mutual as well as private defence”). But it also
allowed them to defend against government violations of their rights, such as “when the

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sanctions of society and laws are found insufficient to restrain the violence of oppression.”
1 Blackstone, supra, at *139; Sharp, supra, at 27. The right to arms thus ensured that the
English people had adequate means to defend themselves against private violence and
public oppression.
This English backdrop informed the public’s understanding of the right to keep arms
in the American colonies. Living thousands of miles from their homeland, with neither a
professional police force nor a standing army, the colonists were forced to rely on
themselves to keep the peace and defend against external threats. Leider, The State’s
Monopoly of Force, supra, at 51. Unsurprisingly, they resorted to familiar institutions, like
the hue and cry and the posse comitatus, to fight crime and respond to other public
emergencies.7 They also relied heavily on the militia; every colony except Pennsylvania 8
7 Describing the posse comitatus, James Wilson explained that “[n]o man above
fifteen and under seventy years of age, ecclesiastical or temporal,” was exempt from
service. James Wilson, Lectures on Law, in 2 Collected Works of James Wilson 1017
(Kermit L. Hall & Mark David Hall eds., 2007). Similarly, during the trial of British
soldiers involved in the Boston massacre, the court instructed the jury about the duty to
muster force in response to the hue and cry: “It is the duty of all persons (except women,
decrepit persons, and infants under fifteen) to aid and assist the peace officers to suppress
riots &c. when called upon to do it. They may take with them such weapons as are
necessary to enable them effectually to do it.” 3 John Adams, Legal Papers of John Adams
285 (L. Kinvin Wroth & Hiller B. Kobel eds., 1965).
8 Because its Assembly was dominated by Quakers, who were pacificists,
Pennsylvania did not have a compulsory militia until the Revolution. Robert Churchill,
Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 L. &
Hist. Rev. 139, 146 (2007); Clayton E. Cramer, Colonial Firearm Regulation, 16 J.
Firearms & Pub. Pol’y 1, 10 (2004). Hence, when its frontiers were attacked by Indians in
the 1750s, citizens organized voluntary military organizations to defend themselves.
Nathan Kozushanich, Defending Themselves: The Original Understanding of the Right to
Bear Arms, 38 Rutgers L.J. 1041, 1047–51 (2007).

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required most able-bodied, free, white men, usually those between ages sixteen and sixty,
to enlist in the militia. Churchill, supra, at 145. Militias served many important public
functions during this time: They “protected communities from bandits and vigilantes,
guarded prisoners, served as patrols, prevented lynchings when unpopular executions were
scheduled, had riot duty, helped settle land-related disputes, and helped manage public
ceremonies and parades, providing domestic security of the state.” Michael J. Golden, The
Dormant Second Amendment: Exploring the Rise, Fall, and Potential Resurrection of
Independent State Militias, 21 Wm. & Mary Bill Rts. J. 1021, 1044 (2013); see also Akhil
Amar, Heller, HLR, and Holistic Legal Reasoning, 122 Harv. L. Rev. 145, 164 (2008).
Domestic security in the colonies, like in Medieval England, was a community endeavor.
None of this would have been possible without ready access to arms. So it is no
surprise that firearm possession was widespread in the colonies. Those who departed for
the New World received express assurances from the Crown that they could keep and use
weapons for their defense.9 To ensure sufficient arms, most colonies required members of
the militia to keep certain arms—usually one “cutting weapon” (like a sword or bayonet)
9 Many colonial charters expressly guaranteed the right to have arms. David B.
Kopel & Joseph G.S. Greenlee, The History of Bans on Types of Arms Before 1900, 50 J.
Leg. 223, 236–37 (2024). The colonists were also guaranteed the liberties and rights of
English subjects, which soon came to include the right to keep arms secured by the English
Bill of Rights. Id. at 237–38; Malcolm, To Keep and Bear Arms, supra, at 138; see, e.g.,
Thomas Jefferson, Notes on the State of Virginia (1788), reprinted in The Portable Thomas
Jefferson 23, 157–60 (Merrill D. Peterson ed., 1975) (recounting how Virginian colonists,
following armed resistance to abuses by Oliver Cromwell and Parliament, secured a written
convention in 1651 guaranteeing “that they shall have & enjoy such freedomes and
priviledges as belong to the free borne people of England”).

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and at least one firearm—that would be useful for defense of the community. 10
Additionally, many colonies required even those exempt from militia service to keep
10 Commonly required firearms included the musket (a heavy military gun), the
firelock (a type of musket), and the “fusee” or “fuzee” (a gun of smaller size and caliber).
See Kopel & Greenlee, supra, at 247–49; The General Laws and Liberties of the
Connecticut Colonie: Revised and Published by Order of the General Court 49, 49 (1672)
(requiring “a good Musquet, Carbine or other Gun” and “a Sword”); An Act for Ordering
& Regulating the Militia of this Province & for the Better Security and Defence Thereof
(1678), in 7 Proceedings and Acts of the General Assembly, October 1678–November
1683, at 53, 54 (1889) (Maryland) (requiring “one good serviceable fixed Gunn”); An Act
for Regulating of the Militia § 5 (1693), in Massachusetts—Acts, Laws and Orders 1692–
1694, at 48, 49 (requiring “a well fixt Firelock Musket” and “a good Sword or Cutlash”);
An Act for the Better Settling and Regulating the Militia, and Appointing Look Outs § 5
(1703), in 9 The Statutes at Large of South Carolina: Containing the Acts Relating to
Roads, Bridges and Ferries, with an Appendix, Containing the Militia Acts Prior to 1794,
at 618, 618 (David J. McCord ed., 1841) (requiring “a good sufficient gun, well fixed” and
“a sword, bayonet or hatchet”); An Act for Settling the Militia (1705), in 3 William Waller
Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia, From the
First Session of the Legislature, in the Year 1619, at 335, 338 (1823) (requiring “a firelock,
musket or fusee well fixed” and “a good sword”); An Act for Settling the Militia of this
Province (1713), in The Laws and Acts of the General Assembly of His Majesties Province
of Nova Casarea or New-Jersey 17, 17 (1717) (requiring “one good sufficient Musquet or
Fuzee well fixed” and “a Sword or Bagonet”); An Act for the Regulation of the Militia § 5
(1718), in 2 Albert Stillman Batchellor, Laws of New Hampshire, Province Period 284,
285 (1913) (requiring “a well fix’d, Firelock Musket, of Musket or Bastard-Musket bore”
and “a good Sword or Cutlash”); Act of 1719, in The Charter and the Acts and Laws of
His Majesties Colony of Rhode-Island, and Providence-Plantations in America 85, 87
(Sidney S. Rider ed., 1895) (requiring “one good Musket or Fuzee” and “one good Sword,
or Baionet”); An Act for Establishing a Militia Within this Government (1742), in Laws of
the Government of New Castle, Kent and Sussex upon Delaware 171, 172 (1741) (requiring
“Muskets or Firelocks”); An Act for the Better Regulating the Militia of this Government,
§ 4, 1746 N.C. Acts 244, 244 (requiring “a Gun, fit for service” and “a Sword, Cutlass, or
Hanger”); An Act for Regulating the Militia of the Colony of New York (1755), in 3 The
Colonial Laws of New York From the Year 1664 to the Revolution 1051, 1053 (Charles Z.
Lincoln et al., eds., 1894) (requiring “a well fixed Musket or Fuzee” and “a good Sword”);
An Act for the Better Ordering of the Militia (1773), in 19:1 Allen D. Candler, The Colonial
Records of the State of Georgia 291, 296 (1911) (requiring “one Gun or Musket fit for
Service” and “a Bayonet Sword or Hatchet”); An Act for Forming and Regulating the
Militia; and for Encouragement of Military Skill, for the Better Defence of this State
(Continued)

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weapons in their homes in case of emergency, such as a sudden attack on the settlement. 11
Yet because most colonists could not afford to own an array of arms, particularly firearms,
they typically satisfied these requirements by keeping weapons that were common for
individual self-defense or hunting. 12 Arms keeping in the colonies was thus a privilege and
(1779), in Vermont State Papers, Being a Collection of Records and Documents,
Connected with the Assumption and Establishment of Government by the People of
Vermont; Together with the Journal of the Council of Safety, the First Constitution, the
Early Journals of the General Assembly, and the Laws from the Year 1779 to 1786,
Inclusive 305, 307 (1823) (requiring “a well fixed firelock . . . or other good fire-arms, . . .
a good sword, cutlass, tomahawk or bayonet”).
11 See Kopel & Greenlee, supra, at 242–43; An Act for Military Discipline (1639),
in 1 Proceedings and Acts of the General Assembly January 1637/8–September 1664, at
77, 77–78 (1883) (Maryland) (requiring “every house keeper or house keepers” to keep
arms “within his her or their house”); Acts and Orders of 1647, § 29, in Colonial Origins
of the American Constitution: A Documentary History 183, 183–84 (Donald S. Lutz ed.,
1998) (Rhode Island) (“every Inhabitant of the Island above sixteen and under sixty years
old”); The General Laws and Liberties of the Connecticut Colonie, supra, at 49 (“every
Male person within this Jurisdiction above the age of sixteen”); Bill for the Settlement of
the Militia (1684), in 1 The Colonial Laws of New York, supra, at 161, 161 (“[A]ll persons
though freed from Training by the Law yet that they be obliged to Keep Convenient armes
and ammunition in Their houses as the Law directs to others.”); An Act for Regulating the
Militia (1693), supra, § 5 (every soldier “and other Householder”); An Act for Settling the
Militia of this Province (1713), supra, at 17 (all men between sixteen and sixty, even those
exempt from militia service); An Act for the Regulation of the Militia (1718), supra, § 5
(every “Listed Souldier or Householder”); An Act for Establishing a Militia Within this
Government (1742), supra, at 171 (“every Freeholder and taxable Person”); An Act for
Amending and Further Continuing the Act for the Better Regulating and Disciplining the
Militia § 5 (1762), in 9 Hening, supra, at 534, 535 (“[E]very person so exempted shall
always keep in his house or place of abode such arms, accoutrements, and ammunition, as
are by the said act required to be kept by the militia of this colony . . . .”); An Act for
Forming and Regulating the Militia; and for Encouragement of Military Skill, for the Better
Defence of this State (1779), supra, at 307 (“every listed soldier or other householder”).
12 Harold L. Peterson, Arms and Armor in Colonial America 1526–1783, at 179
(1956); George C. Neumann, Swords & Blades of the American Revolution 6–15, 252–54
(1973); Churchill, supra, at 167; United States v. Miller, 307 U.S. 174, 179 (1939).

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duty of all individuals that facilitated both “defense of oneself and one’s community.”
Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407, 427 (4th
Cir. 2021)13; Amar, supra, at 164 (“[I]ndividual self-protection and community defense
were not wholly separate spheres.”).
Defense of one’s community was not limited to protecting against criminals or
hostile foreign forces, though. Social contract theory hypothesized that individuals
voluntarily entered political society to protect their rights, including their right to self-
defense, from violation by others.14 The body politic then delegated political authority for
its protection to the government via a constitution.15 But the people remained constantly
wary that the government would abuse its political authority and invade their rights.
Indeed, the English experience under the Stuarts demonstrated that this was a real danger.
So the people reserved a degree of military power for themselves and exercised it through
institutions like the militia and the posse comitatus. 16 Maintaining a decentralized and
13 Vacated as moot by Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco &
Explosives, 14 F.4th 322 (4th Cir. 2021).
14 John Locke, Two Treatises of Government 184 (1694) (Haffner Pub. 1947); James
Wilson, Of Municipal Law, in 1 Collected Works of James Wilson, supra, at 549, 553–54
see also Jud Campbell, Republicanism and Natural Rights at the Founding, 32 Const.
Comment 85, 88 (2017).
15 Locke, supra, at 186–88; Wilson, Lectures on Law, supra, at 556; see also
Campbell, supra, at 89.
16 See Tench Coxe, “An American Citizen IV” (Oct. 21, 1878), in 13 Documentary
History of the Ratification of the Constitution 431, 435 (John P. Kaminski & Gaspare J.
Saladino eds., 1981) (“The militia, who are in fact the effective part of the people at large,
will render many troops quite unnecessary.”); Federal Farmer, “Letter XVIII” (Jan. 25,
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dispersed force in this way would mitigate the need for a standing army, which was
commonly feared to have interests separate from those of the community and to be a ready
instrument of tyranny.17 And it ensured that if the government ever did turn armed force
upon the people, they could readily resist. The keeping of arms in the colonies thus
facilitated self-defense not only against acts of private violence and foreign threats, but also
against any despotic government that tried to invade the colonists’ liberties.
1788), in 17 Documentary History of the Ratification, supra, at 360, 362 (“A militia, when
properly formed, are in fact the people themselves, and render regular troops in a great
measure unnecessary.”); Jud Campbell, Natural Rights, Positive Rights, and the Right to
Keep and Bear Arms, 83 L. & Contemp. Probs. 31, 35 (2020) (“Citizens . . . played a key
role in executive functions through institutions like the posse comitatus and militia.”); Rao,
supra, at 10 (“In its migration to America, . . . colonists transformed the posse comitatus
from an instrument of royal prerogative to an institution of local self-governance.”); Akhil
R. Amar, The Bill of Rights 56 (1998) (“[T]he militia was a local institution, bringing
together representative citizens to preserve popular values of their society.”); Heller, 554
U.S. at 595–96.
17 “Brutus VIII” (Jan. 19, 1788), in The Anti-Federalist: Writings by Opponents of
the Constitution 150, 152 (Herbert J. Storing ed., 1985) (“[A] standing army is still a
standing army by whatever name it is called; they are a body of men distinct from the body
of the people; they are governed by different laws, and blind obedience, and an entire
submission to the orders of their commanding officer, is their only principle; the nations
around us, sir, are already enslaved, and have been enslaved by those very means; by means
of their standing armies they have every one lost their liberties; it is indeed impossible that
the liberties of the people in any country can be preserved where a numerous standing army
is kept up.”); Letter of Samuel Adams to James Warren (Jan. 7, 1776), in 3 The Writings
of Samuel Adams 1773–1777, at 250, 250–51 (Harry Alonzo Cushing ed., 1907) (“Men
who have been long subject to military Laws and inured to military Customs and Habits
may lose the Spirit and Feeling of Citizens. And even Citizens, having been used to admire
the Heroism which the Commanders of their own Army have displayed, and to look up to
them as their Saviors may be prevaild upon to surrender to them those Rights for the
protection of which against Invaders they had employd and paid them.”); see also Steven
J. Heyman, Natural Rights and the Second Amendment, 76 Chi.-Kent L. Rev. 237, 264–65
(2000); Leider, The State’s Monopoly, supra, at 51–52.

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The colonists’ fear of tyranny ultimately materialized in the leadup to the American
Revolution. Concerned by growing colonial resistance to British policies, King George III
and his royal officials imposed an embargo on all incoming arms and ammunition
shipments, obstructed access to colonial magazines, and even ordered soldiers to confiscate
arms and ammunition. David Kopel, How the British Gun Control Program Precipitated
the American Revolution, 6 Charleston L. Rev. 283, 291–301 (2012). The colonists
responded by organizing special militias free from royal control and invoking their right to
keep arms for their defense. 18 Id. at 301–12. And when British troops marched on
Lexington and Concord in 1775 to seize the colonists’ military supplies, they were met by
18 See, e.g., “A Watchman” (Jan. 13, 1775), in 1 American Archives, 4th ser. 1064–
65 (Peter Force ed., 1846) (“And I must here beg leave to recommend to the consideration
of the people on this Continent, whether, when we are by an arbitrary decree prohibited the
having Arms and Ammunition by importation, we have not, by the law of self-preservation,
a right to seize upon those within our power, in order to defend the liberties which God and
nature have given to us . . . .”); William Wirt, Sketches of the Life and Character of Patrick
Henry 141 (1826) (“Sir, we are not weak, if we make a proper use of those means which
the God of nature hath placed in our power. Three millions of people, armed in the holy
cause of liberty, and in such a country as that which we possess, are invincible by any force
which our enemy can send against us.”) (recording Patrick Henry’s speech at the Second
Virginia Convention meeting); George Mason, “Remarks on Annual Elections for the
Fairfax Independent Company” (Apr. 1775), in The Papers of George Mason 1725–1792,
at 229, 229 (Robert A. Rutland ed., 1970) (“This company is essentially different from a
common collection of mercenary soldiers. It was formed upon the liberal sentiments of
public good, for the great and useful purposes of defending our country, and preserving
those inestimable rights which we inherit from our ancestors; it was intended in these times
of extreme danger, when we are threatened with the ruin of that constitution under which
we were born, and the destruction of all that is dear to us, to rouse the attention of the
public, to introduce the use of arms and discipline, to infuse a martial spirit of emulation,
and to provide a fund of officers; that in case of absolute necessity, the people might be the
better enabled to act in defence of their invaded liberty.”).

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militiamen bearing their own arms and willing to sacrifice their lives to defend their
liberties. Malcolm, To Keep and Bear Arms, supra, at 145.
Over a decade later, concerns about a tyrannical federal government would
dominate debates over the proposed Constitution. Antifederalists feared that the lack of a
bill of rights and increased national powers would allow Congress to disarm the populace
and rule by standing army or select militia.19 In response, Federalists argued that Congress
would be given no authority to infringe the fundamental right of the people to keep arms
and that, if Congress ever attempted to do so, the widespread ownership of arms would
enable the people to resist. 20 For example, James Madison explained that Americans had
19 See, e.g., Federal Farmer, “Letter III” (Oct. 10, 1787), in 2 The Complete Anti-
Federalist 234, 242 (Herbert J. Storing ed., 1981) (“Should one fifth, or even one eighth
part of the men capable of bearing arms, be made a select militia, as has been proposed,
and those the young and ardent part of the community, possessed of but little or no property,
and all the others put upon a plan that will render them of no importance, the former will
answer all the purposes of an army, while the latter will be defenceless.”); The
Pennsylvania Convention (Dec. 6, 1787) (statement of John Smilie), in 2 Documentary
History of the Ratification, supra, at 507, 508–09 (“Congress may give us a select militia
which will, in fact, be a standing army—or Congress, afraid of a general militia, may say
there shall be no militia at all. . . . When a select militia is formed; the people in general
may be disarmed.”); Heller, 554 U.S. at 599.
20 Noah Webster, An Examination of the Leading Principles of the Federal
Constitution 43 (1787) (“The supreme power in America cannot enforce unjust laws by the
sword; because the whole body of the people are armed, and constitute a force superior to
any band of regular troops that can be, on any pretense, raised in the United States.”);
Tench Coxe, “A Pennsylvanian III” (Feb. 20, 1788), in The Origin of the Second
Amendment: A Documentary History of the Bill of Rights 275, 276 (David E. Young ed.,
2d ed. 2001) (“Who are the militia? are they not ourselves. Is it feared, then, that we shall
turn our arms each man against his own bosom. Congress have no power to disarm the
militia. Their swords, and every other terrible implement of the soldier, are the birth-right
of an American.”); Foreign Spectator, “Remarks on the Amendments to the Federal
Constitution” (Nov. 7, 1778), in id. at 556, 556 (“While the people have property, arms in
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the “advantage of being armed” over European nations, which, together with the existence
of subordinate governments, would form a “barrier” against tyranny. The Federalist No.
46, at 321–22 (James Madison) (Jacob E. Cooke ed., 1961); see also id. at 321 (noting that
a standing army turned against the people “would be opposed [by] a militia amounting to
near half a million of citizens with arms in their hands, officered by men chosen from
among themselves, fighting for their common liberties, and united and conducted by
governments possessing their affections and confidence”). Alexander Hamilton echoed
these same sentiments, insisting that if Congress ever threatened the people with a standing
army, “that army [could] never be formidable to the liberties of the people while there is a
large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who
stand ready to defend their own rights and those of their fellow-citizens.” The Federalist
No. 29, at 184 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
The Federalists eventually managed to persuade Americans to ratify the
Constitution. Yet they failed to assuage the people’s concerns over the lack of specifically
enumerated rights. So when the First Congress convened, Madison proposed a bill of rights
to be added to the Constitution. After various revisions, the First Congress eventually
approved, and the states ratified, ten amendments to the Constitution, the second of which
secured for the people the right to keep and bear arms.
their hands, and only a spark of a noble spirit, the most corrupt congress must be mad to
form any project of tyranny.”); Alexander White, “To the Citizens of Virginia” (Feb. 22,
1788), in 8 Documentary History of the Ratification, supra, at 401, 404–05.

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The Second Amendment can be understood only in light of the centuries of history
that preceded it. It did not create a fundamental right anew. Rather, as has long been
recognized, it secured a preexisting right that developed over centuries in the Anglo-
American tradition. 21 At its most basic level, that right guarantees that “the people” can
have and carry arms in defense of themselves and their communities. 22 Self-defense, in
21 See Thomas M. Cooley, The General Principles of Constitutional Law in the
United States of America 298 (1898) (explaining that the Second Amendment “was
adopted with some modification and enlargement from the English Bill of Rights”);
William Rawle, A View of the Constitution of the United States of America 126 (1829) (2d
ed. 2003) (explaining that the preexisting right was secured by the English Bill of Rights);
United States v. Cruikshank, 92 U.S. 542, 553 (1875) (concluding that the Second
Amendment is not “in any manner dependent upon [the Constitution] for its existence”);
see also Robertson v. Baldwin, 165 U.S. 275, 281 (1897) (“The law is perfectly well settled
that the first 10 amendments to the constitution, commonly known as the ‘Bill of Rights,’
were not intended to lay down any novel principles of government, but simply to embody
certain guaranties and immunities which we had inherited from our English ancestors
. . . .”).
22 2 St. George Tucker, Blackstone’s Commentaries *300 (1803) (tying the right to
have arms to “[t]he right of self defence,” which “is the first law of nature”); 2 Wilson,
Lectures on Law, supra, at 1142 (explaining that the right to keep and bear arms facilitates
“defence of one’s person or house,” which is “the great natural law of self-preservation”);
Joel Tiffany, A Treatise on the Unconstitutionality of American Slavery 117–18 (1849)
(“[T]he right to keep and bear arms also implies the right to use them if necessary in self
defence; without this right to use the guaranty would have hardly been worth the paper it
consumed.”); Johnson v. Tompkins, 13 F. Cas. 840, 852 (Baldwin, Circuit Justice, C.C.E.D.
Pa. 1833) (No. 7,416) (explaining that citizens have “a right to carry arms in defence of his
property or person, and to use them, if either were assailed with such force, numbers or
violence as made it necessary for the protection or safety of either”); State v. Reid, 1 Ala.
612, 619 (1840) (explaining that the right authorizes the bearing of arms “for the purposes
of defending himself and the State”); State v. Chandler, 5 La. Ann. 489, 490 (1850) (“This
is the right guaranteed by the Constitution of the United States, and which is calculated to
incite men to a manly and noble defence of themselves, if necessary, and of their country,
without any tendency to secret advantages and unmanly assassinations.”); Cockrum v.
State, 24 Tex. 394, 401 (1859) (“The right of a citizen to bear arms, in the lawful defense
of himself or the state, is absolute.”); State v. Duke, 42 Tex. 455, 458 (1875) (explaining
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other words, is its foundational purpose. But self-defense can be individual or collective.
And the Second Amendment expressly ensures that the people can preserve “the security
of a free State”—that is, a “free country” or “free polity”23—should their government ever
threaten their inviolable liberties.24 Individual and communal self-defense against both
foreign and domestic threats were thus the purposes enshrined in the Second Amendment
that the right protects the keeping and bearing of arms “in the defense of himself or the
State”).
23 Eugene Volokh, “Necessary to the Security of a Free State,” 83 Notre Dame L.
Rev. 1, 5 (2007); Heller, 554 U.S. at 597.
24 Tench Coxe, “A Pennsylvanian” (June 18, 1789), in The Complete Bill of Rights
296, 296 (Neil H. Cogan ed., 2d ed. 2015) (“As civil rulers, not having their duty to the
people duly before them, may attempt to tyrannize, and as the military forces which must
be occasionally raised to defend our country, might pervert their power to the injury of
their fellow citizens, the people are confirmed by the next article in their right to keep and
bear their private arms.”); 2 Tucker’s Blackstone, supra, at *300 (“Wherever standing
armies are kept up, and the right of the people to keep and bear arms is, under any colour
or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of
destruction.”); Rawle, supra, at 125–26 (“No clause in the constitution could by any rule
of construction be conceived to give congress a power to disarm the people. Such a
flagitious attempt could only be made under some general pretense by a state legislature.
But if in any blind pursuit of inordinate power, either should attempt it, this amendment
may be appealed to as a restraint on both.”); Joseph Story, Commentaries on the
Constitution of the United States § 1897, at 620 (4th ed. 1873) (“The right of the citizens
to keep and bear arms has justly been considered as the palladium of the liberties of a
republic, since it offers a strong moral check against the usurpation and arbitrary power of
rulers, and will generally, even if these are successful in the first instance, enable the people
to resist and triumph over them.”); Cockrum, 24 Tex. at 401–02 (“The object of the clause
first cited, has reference to the perpetuation of free government, and is based on the idea,
that the people cannot be effectively oppressed and enslaved, who are not first disarmed.”);
Cooley, supra, at 298 (“The right declared was meant to be a strong moral check against
the usurpation and arbitrary power of rulers, and as a necessary and efficient means of
retaining rights when temporarily overturned by usurpation.”).

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upon ratification. That text still being law, they remain the Amendment’s purposes to this
day.
2. Heller, Bruen, and Rahimi
For many years, the Second Amendment lay dormant as a sort of second son among
other constitutional rights. But that changed with the Supreme Court’s decision in Heller,
554 U.S. 570. Heller not only established that the Second Amendment secures an
individual right that extends to keeping a handgun in the home for self-defense, but also
elucidated the Amendment’s aforenoted purposes and the principle that the Amendment
protects the possession of weapons in common use for lawful purposes today.
Heller involved a Second Amendment challenge to the District of Columbia’s
prohibition on possessing handguns in the home. Id. at 573. In rejecting the claim that the
Second Amendment has no role outside of formal militia service, the Court began its
analysis by examining the ordinary meaning of the constitutional text. Id. at 576–77.
Starting with the words “right of the people,” the Court determined that the Second
Amendment secures an individual right, rather than a collective right, for “all members of
the political community, not an unspecified subset.” Id. at 579–81. It then found that the
word “Arms” refers to all “[w]eapons of offence, or armour of defence” or “any thing that
a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike
another.” Id. at 582 (first quoting 1 Samuel Johnson, Dictionary of the English Language
106 (4th ed. 1773); and then quoting 1 Timothy Cunningham, A New and Complete Law
Dictionary (1771)). From these sources, the Court concluded that “the Second Amendment
extends, prima facie, to all instruments that constitute bearable arms, even those that were

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not in existence at the time of the founding.” Id. Finally, the Court found that to “keep
arms” meant to “have” or “possess” weapons, while to “bear arms” meant to “carry” them.
Id. at 582–92. Putting all this together, the Court held that the Second Amendment
“guarantee[s] the individual right to possess and carry weapons in case of confrontation.”
Id. at 592.
The Court then canvassed various historical sources to confirm its semantic
interpretation of the Amendment’s plain text. See Rahimi, 144 S. Ct. at 1925 (Barrett, J.,
concurring) (explaining Heller’s use of history to understand the text). First, it examined
the “historical background” of the right, including English history from the late 1600s
onwards, establishing the importance of arms keeping in the American colonies. Heller,
554 U.S. at 592–95 (“[T]he Second Amendment, like the First and Fourth Amendments,
codified a pre-existing right.”). It then compared the Second Amendment’s language to
similar provisions in state constitutions from before and after the Amendment’s adoption.
Id. at 600–03. Lastly, it canvassed various post-ratification sources, such as writings by
Founding-era jurists, nineteenth-century case law, public and Congressional discussions,
and post-Civil War commentary. Id. at 605–19 (explaining that post-ratification evidence
can be used “to determine the public understanding” of the constitutional text). These
sources confirmed the Court’s initial interpretation of the plain text: The Second
Amendment protects an individual right to keep and bear arms, independent of militia
service.
Along the way, the Court explained the purposes for which the Second Amendment
right was secured. Based on its reading of the historical record, the Court concluded that

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the “central component” of the Second Amendment is the right to keep and bear arms for
individual self-defense. Id. at 599. But the Court did not hold that this is its only purpose.
See McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (explaining that Heller’s
“central holding” 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)); Cruikshank, 92 U.S. at 553 (explaining that the right protects “bearing arms for a
lawful purpose” (internal quotation marks omitted)). To the contrary, the Court also
identified other lawful purposes, like hunting and—important to our case—defense of the
community at large against violence and government tyranny. Heller, 554 U.S. at 599.
Drawing on the right’s historical background, the Court found that “the right secured in
1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an
individual right protecting against both public and private violence.” Id. at 594 (emphasis
added). Later, the Court recognized that the right existed to preserve a “citizens’ militia”—
not merely an “organized militia”—that would serve “as a safeguard against tyranny.” Id.
at 600. The Court thus reaffirmed that the right to keep and bear arms exists for several
lawful purposes besides individual self-defense.
The Court next examined its precedents, particularly United States v. Miller, 307
U.S. 174. In Miller, the Court upheld an indictment against two men charged with
unlawfully transporting a short-barreled shotgun in violation of the National Firearms Act,
48 Stat. 1236 (1934), which imposes strict taxation and registration requirements on
owners of especially dangerous firearms, including short-barreled shotguns and machine
guns. Miller, 307 U.S. at 176. In its brief before the Court, the government argued that

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the regulated weapons had “no legitimate use in the hands of private individuals” and
“frequently constitute[d] the arsenal of the ‘public enemy’ and the ‘gangster.’” Brief of
the United States at 20, Miller, 307 U.S. 174 (No. 696). The Court began its opinion by
explaining that the Second Amendment was adopted to preserve the militia and therefore
“must be interpreted and applied with that end in view.” Miller, 307 U.S. at 178. And it
found that, at the Founding, the militia consisted of ordinary citizens who “were expected
to appear bearing arms supplied by themselves and of the kind in common use at the time.”
Id. at 179 (emphasis added). Yet the defendants had provided no evidence that short-
barreled shotguns were “part of the ordinary military equipment” or “could contribute to
the common defense.” Id. at 177. So the Court rejected their challenge, finding that the
possession or use of such weapons had no “reasonable relationship to the preservation or
efficiency of a well regulated militia.” Id.
Although Justice Stevens argued that Miller supports a militia-based interpretation
of the Second Amendment, Heller, 554 U.S. at 637 (Stevens, J., dissenting), the Court in
Heller read Miller to establish “the type of weapon . . . not eligible for Second Amendment
protection,” id. at 622 (majority op.). It acknowledged that Miller could be read to hold
that “only those weapons useful in warfare are protected.” Id. at 624. But this language,
the Court clarified, must be read alongside Miller’s finding that the traditional militia
included men “bringing arms ‘in common use at the time’ for lawful purposes like self-
defense.” Id. (quoting Miller, 307 U.S. at 179). In other words, weapons the people
commonly used at the Founding were precisely those that were also useful in civilized
warfare. So the Court in Heller concluded that “the Second Amendment does not protect

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those weapons not typically possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns”—even if such weapons happen to be useful in warfare. Id. at 625.
Later, the Court clarified the historical basis of the “common use” limitation
recognized in Miller. See id. (“[Miller] accords with the historical understanding of the
scope of the right . . . .”). This limitation, the Court found, “is fairly supported by the
historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Id.
The Court then explained that, because of this limitation, the Second Amendment does not
protect “arms that are highly unusual in society at large”—such as “M-16 rifles and the
like”—even though such arms are “most useful for militia service.” Id. These weapons
are therefore unprotected not because they aren’t “Arms” under the plain text, but because
they fall within the historical tradition of regulating dangerous and unusual weapons.
Applying this framework, the Court held that the District of Columbia’s ban on
handguns violated the Second Amendment. “The handgun ban,” the Court explained,
amounted “to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by
American society for [self-defense]” and extended even to the home, “where the need for
defense of self, family, and property is most acute.” Id. at 628. And the Court found that
there is no historical justification in our Nation’s history for completely banning an arm
commonly owned for lawful purposes. Id. at 628–29. Nor did it matter that the District
permitted the possession of other weapons, like long guns. “It is enough to note,” the Court
explained, “that the American people have considered the handgun to be the quintessential
self-defense weapon,” likely due to its ready accessibility and ease of use, among other
things. Id. at 629. “Whatever the reason,” though, “handguns are the most popular weapon

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chosen by Americans for self-defense in the home, and a complete prohibition of their use
is invalid.” Id.25
In Heller’s wake, courts of appeals—including our own—created a two-step
framework for assessing Second Amendment challenges. United States v. Chester, 628
F.3d 673, 680–83 (4th Cir. 2010); see Bruen, 597 U.S. at 18–19 & n.4 (collecting cases).
We first asked whether a challenged regulation burdened conduct protected by the Second
Amendment, based on a historical inquiry into the scope of the right at the time of the
Founding. Chester, 628 F.3d at 680. If it did, then we would assess the regulation’s
constitutionality using means-end scrutiny, the strength of which turned on the severity of
the burden. Id.
The Supreme Court eventually rejected this approach in Bruen. 597 U.S. at 19.
Bruen involved a Second Amendment challenge to New York’s “may issue” licensing
scheme for the concealed carry of handguns. Id. at 10–18. “Heller and McDonald,” the
Court explained, “do not support applying means-end scrutiny in the Second Amendment
context.” Id. at 19. Indeed, these cases had already found that means-end scrutiny and
interest balancing, which require “judges to assess the costs and benefits of firearms
restrictions,” McDonald, 561 U.S. 790–91, are antithetical to the idea of an enumerated
Bill of Rights, for “[t]he very enumeration of the right takes out of the hand of the
government—even the Third Branch of Government—the power to decide on a case-by-
25 The Court also held that the District’s requirement that handguns in the home be
rendered and kept inoperable at all times violated the Second Amendment, since this
restriction made it “impossible for citizens to use them for the core lawful purpose of self-
defense.” Heller, 554 U.S. at 630.

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case basis whether the right is really worth protecting,” Heller, 554 U.S. at 634. These
cases rather established a “test rooted in the Second Amendment’s text, as informed by
history,” which requires the government to “prove that its firearms regulation is part of the
historical tradition that delineates the outer boundaries of the right to keep and bear arms.”
Bruen, 597 U.S. at 19.
The Court then articulated the test that governs all Second Amendment challenges.
“When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.” Id. at 24. At that point, the challenged
regulation is unconstitutional unless the government “demonstrate[s] that it is consistent
with the Nation’s historical tradition of firearm regulation.” Id. Only then “may a court
conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified
command.’” Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Recognizing that historical analysis is no easy matter, the Court clarified how courts
should assess whether a contemporary regulation tracks with historical forbears. Some
cases, the Court explained, are easy. “For instance, when a challenged regulation addresses
a general societal problem that has persisted since the 18th century, the lack of a distinctly
similar regulation addressing that problem is relevant evidence that the challenged
regulation is inconsistent with the Second Amendment.” Id. at 26. “Likewise,” the Court
clarified, “if earlier generations addressed the societal problem, but did so through
materially different means, that also could be evidence that a modern regulation is
unconstitutional.” Id. at 26–27. Or, finally, if earlier generations attempted to enact
analogous regulations but failed because of constitutional concerns, the fact of rejection

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would be probative of unconstitutionality. Id. at 27. Put simply, if a general societal
problem has never been successfully combatted through a materially similar firearm
regulation, that is strong evidence that the challenged regulation is unconstitutional.
That said, the Court recognized that other cases are not so simple, especially those
involving “unprecedented social concerns” or “dramatic technological changes.” Id. at 28.
Such cases demand a “more nuanced approach,” requiring courts to reason by analogy and
determine whether past and present regulations are “relevantly similar.” Id. at 28–29
(quoting Cass Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)).
Although the Court did not provide an “exhaustive survey” of relevant similarity, it did
identify two indicators that should guide analogical reasoning: “how” and “why” the
regulations burden the right to keep and bear arms. Id. at 29. In other words, whether past
and present regulations impose a “comparable burden” (“how”) and whether that burden is
“comparably justified” (“why”) are “central” considerations when reasoning by analogy.
Id. (quoting McDonald, 561 U.S. at 767).
Applying this framework, the Court held that New York’s “may issue” licensing
regime violated the Second Amendment. It first concluded that the Second Amendment’s
plain text “presumptively guarantees petitioners . . . a right to ‘bear’ arms in public for self-
defense.” Id. at 33. The Court then examined the government’s historical analogues and
found that it had failed to prove a historical tradition “of broadly prohibiting the public
carry of commonly used firearms for self-defense.” Id. at 38.
After our en banc Court heard argument in this case, the Supreme Court handed
down the latest installment in the Second Amendment saga, Rahimi. Rahimi involved a

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challenge to 18 U.S.C. § 922(g)(8), which prohibits an individual subject to a domestic
violence restraining order from possessing a firearm. 144 S. Ct. at 1894–96. The Court
began its analysis by reaffirming that, “when the Government regulates arms-bearing
conduct, as when the Government regulates other constitutional rights, it bears the burden
to ‘justify its regulation’” using history and tradition. Id. at 1897 (quoting Bruen, 597 U.S.
at 24). It nonetheless emphasized, as it had in Heller and Bruen, that “the Second
Amendment permits more than just those regulations identical to ones that could be found
in 1791.” Id. at 1897–98. “The law must comport with the principles underlying the
Second Amendment, but it need not be a ‘dead ringer’ or ‘historical twin.’” Id. at 1898
(quoting Bruen, 597 U.S. at 30 (emphasis added)). The Court then concluded that
§ 922(g)(8) was constitutional as applied to the defendant, against whom a restraining order
was issued upon a finding that he posed “a credible threat to the physical safety” of another,
§ 922(g)(8)(C)(i), since it was analogous to historical laws “preventing individuals who
threaten physical harm to others from misusing firearms,” Rahimi, 144 S. Ct. at 1896.
B. Kolbe is demonstrably inconsistent with Heller and has been abrogated by
Bruen.
This case requires us to consider the viability of our decision in Kolbe after Bruen,
a question that implicates two important relationships: our horizontal relationship to past
Circuit precedent and our vertical relationship to Supreme Court precedent.
Horizontal stare decisis is a well-settled doctrine in the courts of appeals that varies
in strength based on the level of review. When a panel of our Court considers past panel
or en banc precedents, it ordinarily must apply them “as a mechanical mandate.” Payne v.

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Taslimi, 998 F.3d 648, 654 (4th Cir. 2021). Our en banc Court, by contrast, may overrule
prior panel or en banc precedents. McMellon v. United States, 387 F.3d 329, 333–34 (4th
Cir. 2004) (en banc). In determining whether to overrule a past decision, we are guided by
traditional stare decisis considerations, Payne, 998 F.3d at 654, the most important of
which is whether a past decision is “demonstrably erroneous,” Gamble v. United States,
587 U.S. 678, 717–18 (2019) (Thomas, J., concurring); see also Caleb Nelson, Stare
Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 21–48 (2001)
(explaining the traditional doctrine of stare decisis at the Founding).
Even greater than our obligation to follow our own precedent, however, is our
obligation to follow decisions of the Supreme Court. So even if horizontal stare decisis
would otherwise dictate that we follow past Circuit precedent, we cannot do so “if its
reasoning or holding is inconsistent with a Supreme Court decision.” United States v.
Banks, 29 F.4th 168, 175 (4th Cir. 2022); Rose v. PSA Airlines, Inc., 80 F.4th 488, 504 (4th
Cir. 2023). This is especially so when “‘a superseding contrary decision of the Supreme
Court’ . . . specifically rejected the reasoning on which our decision was based.” Etheridge
v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090–91 (4th Cir. 1993) (quoting Busby v. Crown
Supply, Inc., 896 F.2d 833, 840–41 (4th Cir. 1990)).
Kolbe had two holdings. It first held that the rifles Maryland bans are not protected
by the Second Amendment because they are “‘like’ ‘M-16 rifles,’” in that both are
“‘weapons that are most useful in military service.’” 849 F.3d at 121 (quoting Heller, 554
U.S. at 627). In the alternative, Kolbe held that, even if the banned rifles are protected by

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the Second Amendment, Maryland’s ban passes constitutional muster under intermediate
scrutiny. See id.
The latter holding obviously conflicts with Heller and does not survive Bruen. The
Court in Bruen explained that means-end scrutiny has no place under the Second
Amendment. See Bruen, 597 U.S. at 19. And it cited Kolbe’s second holding as an
example of the analysis it was rejecting. See id. (citing Kolbe, 849 F.3d at 133). So that
holding is no longer good law.
Kolbe’s first holding cannot survive, either. Its “‘like’ ‘M-16 rifles’” test bears no
resemblance to either Bruen’s plain-text step or its historical-tradition step. Indeed, Kolbe
explicitly declined to engage with the historical tradition authorizing the ownership of
weapons commonly used for lawful purposes and prohibiting the ownership of “dangerous
and unusual” weapons. 849 F.3d at 135–36 & n.10. So its reasoning is nothing more than
a pre-Bruen anachronism. 26 See also Rahimi, 144 S. Ct. at 1897–98 (confirming that
Second Amendment challenges must be assessed against text and history).
Even without Bruen, we should readily overrule Kolbe because it is demonstrably
inconsistent with Heller. Heller did not establish a standalone exception to the Second
Amendment for weapons “most useful for military service.” Kolbe, 849 F.3d at 136.
Rather, the Court explained that “the Second Amendment extends, prima facie, to all
26 The majority argues that Bruen did not abrogate Kolbe because the Supreme Court
described step one of the prior two-step approach—which considered the Second
Amendment’s historical meaning—as “broadly consistent with Heller.” Majority Op. at
16–17 (quoting Bruen, 597 U.S. at 19). But Kolbe explicitly refused to consider the right’s
original scope and relied instead on isolated sentences from Heller divorced from context.
See 849 F.3d at 136 & n.10. So Bruen did not affirm the path we took in that case.

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instruments that constitute bearable arms, even those that were not in existence at the time
of the founding.” Heller, 554 U.S. at 582. It then identified an important “limitation” on
the right based on “the historical tradition of prohibiting the carry of ‘dangerous and
unusual weapons.’” Id. at 627. But, as I will soon explain, that limitation only extends to
weapons “commonly used by criminals,” id. at 623 (quoting Brief of the United States at
18–21, Miller, 307 U.S. 174), that are “highly unusual in society at large,” id. at 627. It
does not extend to weapons that are commonly used for lawful purposes, even if they
happen to be “most useful in military service.” See id. Kolbe explicitly refused to consider
whether Maryland’s ban prohibits weapons that are in common use or are dangerous and
unusual. This gross misreading of Heller is reason enough to abandon it.
C. Maryland’s ban violates the Second Amendment.
Since Kolbe no longer controls, I must assess whether Maryland’s ban is
constitutional under Bruen’s two-part analysis. I first ask whether the Second
Amendment’s plain text covers Appellants’ proposed course of conduct. Bruen, 597 U.S.
at 17. If so, then the regulation is unconstitutional unless Appellees can show that it “is
consistent with the Nation’s historical tradition of firearm regulation.” Id.
Applying this framework, it is evident that Maryland’s semiautomatic-rifle ban
violates the Second Amendment. Maryland’s law regulates conduct protected by the plain
text of the Second Amendment, since it prohibits “the people” from “keep[ing]” certain
“Arms.” And Appellees have failed to justify Maryland’s ban under history and tradition.
The proscribed arms are indisputably in common use by law-abiding citizens for lawful

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purposes. So they are not “dangerous and unusual” weapons and cannot be prohibited
consistent with the Second Amendment.
1. Maryland’s law regulates conduct protected by the plain text of the
Second Amendment.
The Second Amendment reads: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. To successfully launch a facial challenge against a
firearm regulation, a challenger must first show that the law regulates conduct that falls
within the Amendment’s plain text.27 Rahimi, 144 S. Ct. at 1897; Bruen, 597 U.S. at 24.
Accordingly, the challengers here must demonstrate three things: (1) Maryland’s law
applies to “the people” entitled to the right; (2) it covers “Arms”; and (3) it regulates the
“keep[ing]” or “bear[ing]” of those arms. Heller, 554 U.S. at 579–86; Bruen, 597 U.S. at
32–33.
Maryland’s law regulates conduct covered by the Second Amendment’s plain text.
First, it applies to “the people.” Heller explained that “the people” is a term that
“unambiguously refers to all members of the political community, not an unspecified
27 In Bruen, the Court focused on whether the challengers’ proposed course of
conduct fell within the plain text of the Amendment. See 597 U.S. at 31–33. But Bruen
seems to have involved an as-applied challenge. This case, by contrast, involves a facial
challenge, which requires a challenger “to ‘establish that no set of circumstances exists
under which the Act would be valid.’” Rahimi, 144 S. Ct. at 1898 (quoting United States
v. Salerno, 481 U.S. 739, 745 (1987)). It therefore seems that we must consider the conduct
Maryland’s law targets as a whole, instead of these challengers’ particular conduct. See
id. at 1907 (Gorsuch, J., concurring) (concluding that “the law Mr. Rahimi challenges
addresses individual conduct covered by the text of the Second Amendment”); id. at 1933
(Thomas, J., dissenting) (finding that the challenged law “targets conduct encompassed by
the Second Amendment’s plain text”).

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subset.” Heller, 554 U.S. at 580; see also United States v. Verdugo-Urquidez, 494 U.S.
259, 265 (1990) (explaining that “the people” referenced in the First, Second, Fourth,
Ninth, and Tenth Amendments “refers to a class of persons who are part of a national
community or who have otherwise developed sufficient connection with this country to be
considered part of that community”). Since Maryland’s ban applies to all “person[s],” with
limited exceptions, Md. Code Ann., Crim. Law § 4-303(a), it targets “the people” protected
by the Amendment’s plain text.
Second, Maryland’s law bans a class of semiautomatic rifles that fall within the
plain meaning of “Arms.” Relying on Founding-era dictionaries, Heller recognized an
expansive definition of “Arms” that includes all “weapons of offence, or armour of
defence” and “any thing that a man wears for his defence, or takes into his hands, or useth
in wrath to cast at or strike another.” Heller, 554 U.S. at 581 (quotations omitted). And
Heller clarified that the right is not limited to weapons that existed at the time of the
Founding, nor to certain classes of weapons, but “extends, prima facie, to all instruments
that constitute bearable arms, even those that were not found in existence at the time of the
Founding.” Id. at 582.
There is no question that the class of banned semiautomatic rifles meets this
definition. Rifles are instruments that can be borne and used to harm others. So it is no
surprise that they have been recognized as “Arms” covered by the Second Amendment
since the Founding. See, e.g., Miller, 307 U.S. at 182 (noting a 1785 state militia statute
that allowed citizens to carry “good rifles with proper accoutrements, in lieu [of
muskets]”); Andrews v. State, 50 Tenn. (3 Heisk.) 165, 178 (1871) (defining “arms” to

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include “rifle[s] of all descriptions”). Nor does it matter that these rifles, unlike those at the
Founding, are semiautomatic. That feature only enhances their ability to “cast at or strike
another” in “offence” or “defence”—the defining characteristics of “Arms.” Heller, 554
U.S. at 581 (citations omitted); see Rahimi, 144 S. Ct. at 1898 (emphasizing that the Second
Amendment’s protections are not limited to “muskets and sabers”). If it were otherwise,
then Heller could not have found modern semiautomatic handguns protected by the right.
554 U.S. at 628–29. Therefore, the class of banned semiautomatic rifles are “Arms” under
the Second Amendment’s plain text.
Third, Maryland’s law regulates conduct protected by the Second Amendment.
Heller confirmed that the Second Amendment “guarantee[s] the individual right to possess
and carry arms in case of confrontation.” Id. at 592. But Maryland prohibits Appellants
and others from keeping or bearing such arms at all, even “for self-defense and other lawful
purposes.” J.A. 17. So Maryland’s law targets conduct protected by the Second
Amendment’s plain text.
Appellees do not contest any of the above analysis. Instead, they argue that
Appellants should have to make one more showing at Bruen’s plain-text first step. Heller,
Appellees note, emphasized that “the Second Amendment right . . . extends only to certain
types of weapons,” i.e., those in common use by law-abiding citizens for lawful purposes.
554 U.S. at 623, 625–26. And Appellees contend that Heller, in saying this, was defining
what constitutes an “Arm” under the plain meaning of the Second Amendment. So
Appellees think that Appellants must prove at Bruen’s first step that the prohibited firearms
are in common use today.

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The easiest way to assess this claim would be to determine where Bruen conducted
this inquiry. Yet Bruen is somewhat ambiguous on this point. On the one hand, when
determining whether the plaintiffs’ conduct fell within the plain text of the Second
Amendment, the Court mentioned that handguns are “weapons ‘in common use’ today for
self-defense.” Bruen, 597 U.S. at 32 (quoting Heller, 554 U.S. at 627). This could be read
to suggest that the “common use” inquiry defines what counts as an “Arm” within the plain
meaning of the text. On the other hand, the Court later explained that the tradition of
prohibiting the carry of “dangerous and unusual” weapons did not justify New York’s may-
issue regime, because handguns are “indisputably in ‘common use’ for self-defense today.”
Id. at 47. So Bruen alternatively could be read as making the “common use” question part
of the step-two inquiry. Unsurprisingly, Bruen’s invocation of this language at both steps
has generated confusion among the circuits. Compare United States v. Rahimi, 61 F.4th
443, 454 (5th Cir. 2023), rev’d, 144 S. Ct. 1889 (step one), and United States v. Alinez, 69
F.4th 1124, 1128 (9th Cir. 2023) (step one), with Teter v. Lopez, 76 F.4th 938, 949–50 (9th
Cir. 2023), vacated and reh’g en banc granted, No. 20-15048, 2024 WL 719051 (9th Cir.
Feb. 22, 2024) (step two); see also Bevis v. City of Naperville, 85 F.4th 1175, 1198 (7th
Cir. 2023) (“There is another aspect of the Bruen framework, which is whether the
regulated weapons are ‘in common use.’ There is no consensus on whether the common-
use issue belongs at Bruen step one or Bruen step two.”). 28
28 See also Jamie G. McWilliam, The Relevance of “In Common Use” After Bruen,
Harv. J.L. & Pub. Pol’y Per Curium (Fall 2023).

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When we take a wider view of Bruen’s framework, though, it is easier to fit the
pieces together. The Court explained that the step-one inquiry is based on whether the
“plain text” of the Second Amendment covers an individual’s conduct. 597 U.S. at 17.
That text protects the right to keep and bear “Arms”—“not ‘Arms in common use at the
time.’” Bevis, 85 F.4th at 1029 (Brennan, J., dissenting). And when considering this plain
text, the Court in Heller defined “Arms” to include “[w]eapons of offence” and “anything
that a man wears for his defence.” Heller, 554 U.S. at 581 (citations omitted). The Court
never mentioned the “common use” inquiry when discussing the Amendment’s plain text.
Instead, it was not until forty pages later, when dealing with other precedents, that
the Court first mentioned the “common use” limitation. See id. at 621–26. While
discussing Miller, the Court stated that “the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for lawful purposes.” Id. at 623,
626. But it never grounded this limitation in the Amendment’s text. Rather, the Court
derived it from “the historical tradition of prohibiting the carrying of ‘dangerous and
unusual weapons.’” Id. at 627. It was thus from our Nation’s historical tradition of firearm
regulation, and not the plain meaning of “Arms,” that Heller drew this limitation on the
scope of the right.
This being the case, the “common use” inquiry best fits at Bruen’s second step.
After all, that step concerns limitations drawn from historical regulations. Bruen, 597 U.S.
at 34. So a litigant challenging a weapons ban should be able to satisfy step one by showing
that he is part of “the people,” that his weapon is covered by the plain meaning of “Arms,”
and that he seeks to “keep” or “carry” those arms. Then, at step two, the burden ought to

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fall on the government to prove that the challenged regulation is relevantly analogous to
our Nation’s historical tradition of firearm regulation.29
Maryland’s ban thus regulates conduct covered by the plain text of the Second
Amendment. I therefore proceed to consider whether it resembles our Nation’s historical
tradition of firearm regulation.
2. Maryland’s ban on certain semiautomatic rifles violates the Second
Amendment because these arms are in common use for lawful
purposes.
At Bruen’s second step, Appellees must prove that our Nation’s historical tradition
justifies Maryland’s ban on semiautomatic rifles. Heller already identified one such
tradition: the tradition prohibiting the carry of “dangerous and unusual weapons.” See 554
U.S. at 627. So a straightforward application of Heller would seemingly require us to
determine whether the banned weapons are dangerous and unusual. If they are, then they
29 Why, then, did the Supreme Court mention “common use” at the plain-text step?
Most likely, the Court was simply recognizing that arms in common use, like handguns,
are “Arms” within the plain text. But this does not mean that weapons not in common use
are not “Arms” within the plain text. Indeed, Rahimi confirms this interpretation. Besides
mentioning that handguns are in common use, the Court in Bruen also noted that the
plaintiffs—“two ordinary, law-abiding, adult citizens”—were part of “the people.” 597
U.S. at 31–32. But when considering whether the defendant in Rahimi, a violent
lawbreaker, was entitled to possess a gun, the Court did not reject his claim from the jump
by holding that he was not part of “the people.” Rather, the Court proceeded immediately
to Bruen’s second step and upheld the restriction under history and tradition, thus heavily
implying that it considered him part of “the people” at Bruen’s first step. See Rahimi, 144
S. Ct. at 1898–1903; see also id. at 1907 (Gorsuch, J., concurring) (“In this case, no one
questions that the law Mr. Rahimi challenges addresses individual conduct covered by the
text of the Second Amendment.”); id. at 1933 (Thomas, J., dissenting) (explaining why
Rahimi was part of “the people”). So just as the term “the people” includes but is not
limited to ordinary, law-abiding, adult citizens, the term “Arms” includes but is not limited
to arms in common use.

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can be prohibited. But if they either are not dangerous or not unusual, then their prohibition
would violate the Second Amendment.
Rather than following in Heller’s footsteps, Appellees try to blaze their own path
through the historical record. Drawing mostly from nineteenth- and twentieth-century
regulations on the carry of certain weapons, Appellees argue that our Nation’s historical
tradition allows the government to ban “extraordinarily dangerous weapons that pose
heightened risks” to public safety. Appellee’s Br. at 37 (decapitalized). And Appellees
seem to think that such weapons can be banned even if they are commonly possessed for
lawful purposes. In other words, Appellees seem to think that our history and tradition
support two kinds of arms bans: (1) bans on weapons that are dangerous and unusual, and
(2) bans on weapons that are exceptionally dangerous.
But the historic laws Appellees cite do not represent a new and previously unknown
tradition. Rather, when properly understood, they represent the same principle already
identified in Heller: The Second Amendment protects weapons commonly used for lawful
purposes but does not protect dangerous and unusual weapons. As I will demonstrate, this
principle extends back far before the Second Amendment and forward long after its
enactment.
Accordingly, I begin by extrapolating support for and examining the contours of
this tradition. Then, I apply my findings to Maryland’s ban on certain semiautomatic rifles,
concluding that the challenged ban violates the Second Amendment because it prohibits
possession of weapons commonly possessed by law-abiding citizens for lawful purposes.

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But first, some ground rules. My goal is to discern the original law of the Second
Amendment. William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L.
Rev. 1455, 1457–58 (2019); see Heller, 554 U.S. at 634–35 (indicating that courts should
interpret constitutional rights according to “the scope they were understood to have when
the people adopted them”). The Second Amendment’s plain text is the best evidence of
this original law. See Heller, 554 U.S. at 576. So the fact that a challenger’s conduct falls
within the plain text is enough to presume that it is constitutionally protected. Bruen, 597
U.S. at 17. Yet we know that the Second Amendment codified “a pre-existing right” that
originated in historical customary law. Heller, 554 U.S. at 592. And though it adopts this
preexisting right, the text of the Second Amendment does not spell out its historic contours
in full detail. See id. at 626–27. Therefore, we look to history and tradition to grasp the
full scope of the right as it was ratified in 1791 and incorporated against the states in 1868. 30
Bruen, 597 U.S. at 34–35.
This background helps us understand the utility (and limits) of relying on history
and tradition. Our Nation’s historical tradition of firearms regulation is evidence of
enduring principles that fall within the original scope of the Second Amendment right. See
id. at 33–37. But it is just that—evidence—and nothing more. The mere fact that certain
regulations once existed does not itself prove a constitutional principle. Id. at 46. Nor is
the nonexistence of similar historical regulations conclusive proof of a present law’s
30 As in Rahimi and Bruen, I need not decide whether the Second Amendment
should be interpreted as understood in 1791 or 1868. History and tradition reveal a unitary
constitutional principle that spans both historical periods, as I will explain.

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unconstitutionality. Id. at 26–27. The end goal of our historical analysis is to unearth the
fundamental principles that “underpin our regulatory tradition,” not the regulations
themselves. Rahimi, 144 S. Ct. at 1898.
a. History and tradition support the banning of dangerous and
unusual weapons, but not weapons commonly used for lawful
purposes.
I begin by considering the English history of regulating the right to keep or carry
certain arms. This is, after all, where Heller and Bruen started. 554 U.S. at 592–93; 597
U.S. at 39–46. At the same time, I am mindful of Bruen’s admonition that “not all history
is created equal.” 597 U.S. at 34. “‘[T]he language of the Constitution cannot be
interpreted safely except by reference to the common law and to British institutions as they
were when the instrument was framed and adopted,’ not as they existed in the Middle
Ages.” Id. at 39 (quoting Ex parte Grossman, 267 U.S. 87, 108–09 (1925)). Accordingly,
I only rely on English tradition insofar as it bears on the original scope of the Second
Amendment in America.
Appellees do not cite any English history or custom from before the Founding that
supports a ban on possessing certain firearms. This is probably because Bruen already
covered this ground and found it lacking. See id. at 39–46; see also Kopel & Greenlee,
supra, at 228–31. As detailed above, English subjects were required for much of England’s
history to possess military weapons. And what arms bans did exist were scarce. For
example, in 1383, King Richard II outlawed the possession of “launcegays”—a kind of
lightweight lance—but did not ban the heavier war lance. 7 Rich. 2 c. 8 (1383); Kopel &
Greenlee, supra, at 230. Likewise, in 1541, Henry VIII prohibited anyone under a certain

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income level from owning and using handguns shorter than a yard unless he had a license.
33 Hen. 8 c. 6, §§ 1–2 (1541). But rather than reflecting a fear of dangerous weapons, that
statute ensured that Englishmen would not quickly replace the reliable military longbow
with novel—but less effective—handguns. Bruen, 597 U.S. at 42. Regardless, this statute
gradually fell into disuse, and the last recorded prosecutions under it occurred in the late
seventeenth century. See id. at 43 n.10; Kopel & Greenlee, supra, at 231. Finally, in 1616,
James I outlawed “dags”—a type of small handgun—yet this decree seems to have been
disregarded. See A Proclamation Against Steelets, Pocket Daggers, Pocket Dagges and
Pistols (Robert Barket ed., 1616); Kopel & Greenlee, supra, at 10. All in all, I know of no
longstanding English practice lasting until the Revolution of prohibiting the possession of
types of arms, extraordinarily dangerous or otherwise.
English history is more ambiguous when it comes to regulating the carry of certain
weapons. When Edward III assumed the throne in 1327, the country was in a state of
unrest, as bands of knights and other malefactors roved the land committing acts of
violence. Bruen, 597 U.S. at 40. Parliament responded by enacting the Statute of
Northampton in 1328, which provided that most Englishmen could not “come before the
King’s Justices, or other of the King’s Ministers doing their office, with force and arms,
nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in
Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part
elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the
King’s pleasure.” 2 Edw. 3 c. 3 (1328). Exactly how often the statute was enforced,
however, is less apparent. As Bruen explained, it had become basically obsolete by the

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late seventeenth century, and it was interpreted narrowly to prescribe only actions done
with evil intent or malice. See 597 U.S. at 43–44 (discussing the prosecution of Sir John
Knight).
For our purposes, the Statute of Northampton is relevant because of the kinds of
weapons it prohibited people from carrying with such ill intent. Blackstone explained that
the Statute codified the preexisting, common-law “crime against the public peace” of
“riding or going armed, with dangerous or unusual weapons,” which would “terrify[] the
good people of the land.”31 4 Blackstone, supra, at *148–49 (third emphasis added).
Serjeant William Hawkins similarly recognized that an individual violated the common-
law offense when he carried “dangerous and unusual Weapons, in such a Manner as will
naturally cause a Terror to the People.” 1 A Treatise of Pleas of the Crown 135 (3d ed.
1739) (emphasis added). By contrast, Hawkins explained, “Persons of Quality are in no
Danger of offending against this Statute by wearing common Weapons . . . for their
Ornament or Defence,” since then it would be apparent that they had no “Intention to
commit any Act of Violence or Disturbance of the Peace.” Id. at 136 (emphasis added);
see also Theodore Barlow, Justice of the Peace 12 (1745). The distinction undergirding
31 As this quote demonstrates, Blackstone described the offense as applying to
dangerous or unusual weapons. Several other sources borrowed this formulation. Still, as
the quotations illustrate, the overwhelming majority of English and American authorities
described the offense as applying to dangerous and unusual weapons. Nineteenth-century
state courts similarly required that a weapon have both qualities to fit within this tradition.
And lest there be any doubt on this question, Heller explained that the tradition applies to
“dangerous and unusual weapons.” 554 U.S. at 627 (emphasis added) (internal quotation
marks omitted). Accordingly, history and tradition require a weapon to be both dangerous
and unusual—not merely dangerous or unusual.

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the crime therefore seems to have been between the carry of dangerous and unusual
weapons, which would terrify the people, and the carry of common weapons, which would
not terrify the people. And this largely tracks the weapons that the Statute apparently
proscribed. As Bruen explained, likely the only weapons covered by the Statute were those
like launcegays, which were frequently worn to breach the peace. See 597 U.S. at 41. By
contrast, the Statute did not prohibit the wearing of those weapons commonly carried for
self-defense and other lawful purposes, like knives or daggers. Id. at 41–42.
When we cross the Atlantic, the picture in the colonies looks much the same.
Appellees do not identify any practice of prohibiting certain arms in the English colonies.
This should come as no surprise. As explained earlier, the colonists were guaranteed by
the Crown the right to have arms and needed those arms to protect themselves against
internal and external threats. For this reason, most colonies required their inhabitants—
whether they were members of the militia or not—to keep firearms in their homes. And
those same colonies resisted efforts by the British to deprive them of their arms,
recognizing that this posed an existential threat to their liberties. I am unaware of any laws
before the American Founding that deprived citizens of the right to possess certain
weapons.32 Kopel & Greenlee, supra, at 261.
32 Appellees do cite one late eighteenth- and several late nineteenth-century
regulations prohibiting the setting of “trap guns”—weapons rigged to fire on burglars or
game when a device was tripped. But these regulations did not prohibit the possession of
any type of firearm; they prohibited only certain dangerous uses of firearms. See Kopel &
Greenlee, supra, at 365–66. They therefore did not impose a relevantly similar burden on
the right to keep arms and cannot justify Maryland’s total ban on certain firearms. See
Bruen, 597 U.S. at 29.

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There were, however, similarities between English and early American practices
when it came to prohibiting the carry of weapons. Most notably, several colonies and states
recognized the common-law offense codified by the Statute of Northampton. Bruen, 597
U.S. at 47, 50. In the late seventeenth century, two colonies—Massachusetts (1692) and
New Hampshire (1699)—adopted their own versions of the Statute of Northampton.33 See
Act of Aug. 22, 1692, No. 6, 1692 Mass. Acts & Laws 10, 11–12; N.H. Acts & Laws 1, 2
(Fowle ed., 1761). Two states—Virginia (1786) and Massachusetts (1795)—followed suit
after the Revolution. See Act of Nov. 27, 1786, ch. XXII, 1792 Va. Acts 33, 33; Act of
Jan. 29, 1795, § 2, in 2 Laws of the Commonwealth of Massachusetts From November 28,
1780 to February 28, 1807, at 652, 653 (1807). And at least two other states—Delaware
(1852) and South Carolina (1870)—did the same during the nineteenth century. 1852 Del.
Stat. 330, 333, § 13; Act of Mar. 1, 1870, No. 288, § 4, 1869–70 S.C. Acts 402, 403.
Later sources confirm that in America, as in England, the common-law offense was
construed to cover the carry of dangerous and unusual weapons, but not the carry of
common ones. This is how antebellum courts understood the offense. See, e.g., State v.
Langford, 10 N.C. 381, 383–84 (1824) (explaining that an affray could occur “when a man
33 Additionally, a 1686 law in East New Jersey prohibited the concealed carry of
“unusual and unlawful Weapons” like pocket pistols, “Skeines,” “Stilladers,” daggers, or
dirks. An Act Against Wearing Swords, &c., ch. IX, in The Grants, Concessions, and
Original Constitutions of the Province of New Jersey 289, 290 (2d ed. 1881). It also
prohibited “planters”—farm or plantation owners—from carrying pistols except in narrow
circumstances. Id.; Bruen, 597 U.S. at 48–49. It did not, however, prohibit non-planters
from carrying weapons openly, nor planters from carrying long guns for self-defense.
Bruen, 597 U.S. at 48–49. This, again, imposed a very different burden on the right than
Maryland’s total prohibition does.

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arms himself with dangerous and unusual weapons, in such a manner as will naturally
cause a terror to the people” (emphasis added)); O’Neill v. State, 16 Ala. 65, 67 (1849)
(explaining that people were guilty of the offense if they “arm themselves with deadly or
unusual weapons for the purpose of an affray, and in such manner as to strike terror to the
people” (emphasis added)). It is also how treatise writers described it.34 See, e.g., Wilson,
Lectures on Law, supra, at 1138 (“In some cases, there may be an affray, where there is no
34 See William W. Hening, New Virginia Justice, Comprising the Office and
Authority of a Justice of the Peace, in the Commonwealth of Virginia 18 (1795) (“[T]he
wearing of common weapons . . . will not subject a person to the penalties of this act.”);
James Parker, Conductor Generalis: or the Office, Duty, and Authority of the Justices of
the Peace 11 (1788) (“[P]ersons of quality are in no danger of offending against this statute,
by wearing common weapons . . . for their ornament or defence . . . .”); John Haywood,
The Duty and Office of Justices of Peace 10 (1800) (“The riding or going armed with
dangerous or unusual weapons, is a crime against the public peace, by terrifying the good
people of the land . . . .”); Tucker’s Blackstone, supra, at *149 (“The offence of riding or
going armed, with dangerous or unusual weapons, is a crime against the public peace, by
terrifying the good people of the land; and is particularly prohibited by the statute of
Northampton . . . .”); John A. Dunlap, The New-York Justice 8 (1815) (“It is likewise said
to be an affray, at common law, for a man to arm himself with dangerous and unusual
weapons, in such manner as will naturally cause terror to the people.”); Henry Potter, The
Office and Duty of a Justice of the Peace 39 (1816) (explaining that justices of the peace
could “bind” all those who “go about with unusual weapons or attendance, to the terror of
the people”); Charles Humphreys, A Compendium of the Common Law in Force in
Kentucky 482 (1822) (“Riding or going armed with dangerous or unusual weapons, is a
crime against the public peace, by terrifying the people of the land, which is punishable by
forfeiture of the arms, and fine and imprisonment. But here it should be remembered, that
in this country, the constitution guarranties to all persons the right to bear arms; then it can
only be a crime to exercise this right in such a manner, as to terrify the people
unnecessarily.”); Henry J. Stephen, Summary of the Criminal Law 85 (1834); Ellis Lewis,
An Abridgment of the Criminal Law of the United States 64 (1847) (explaining that
“[r]iding or going armed with dangerous or unusual Weapons” was proscribed by the
Statute of Northampton); Francis Wharton, A Treatise on the Criminal Law of the United
States 527–28 (1852) (“[I]t seems certain that in some cases there may be an affray where
there is no actual violence; as where a man arms himself with dangerous and unusual
weapons, in such a manner as will naturally cause a terror to the people, which is said to
have been always an offence at common law, and is strictly prohibited by the statute.”).

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actual violence; as where a man arms himself with dangerous and unusual weapons, in
such a manner, as will naturally diffuse a terrour among the people” (emphasis added)); 1
William Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (2d ed.
1826) (explaining that the bearing of arms fell outside the offense “unless it be
accompanied with such circumstances as are apt to terrify the people; from whence it seems
clearly to follow, that persons of quality are in no danger of offending against the statute
by wearing common weapons” (emphasis added)). So in America, as in England, the
common-law offense was widely construed to distinguish between dangerous and unusual
weapons and common weapons.
It is worth pausing to summarize the ground I have covered so far. The above survey
of the relevant history reveals no longstanding or well-settled practice of prohibiting the
possession of certain weapons in England, colonial America, or the early American
Republic. To the contrary, both countries were permissive when it came to which arms
their citizens kept, since widespread arms ownership ensured public safety and served as a
buttress against tyrannical rulers. At the same time, both England and America did regulate
the carry of certain “dangerous and unusual weapons.” These weapons seem to have been
targeted because they were uncommon and inspired fear of lawbreaking or violence in the
general public. But the prohibitions on carry did not extend to “common” weapons.
Moving forward to consider nineteenth-century regulations, I recognize the need to
proceed with caution. On the one hand, both Heller and Bruen considered nineteenth-
century practice. See 554 U.S. at 629; 597 U.S. at 51–70. Indeed, Heller described “how
the Second Amendment was interpreted from immediately after its ratification through the

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end of the 19th century” as “a critical tool of constitutional interpretation.” 554 U.S. at
605. On other hand, Bruen cautioned that post-ratification practice, like pre-enactment
history, is only useful insofar as it informs the original scope of the Second Amendment.
597 U.S. at 35–36. So even though “open, widespread, and unchallenged” practices from
after 1791 can inform our understanding of an ambiguous text, id. at 36 (quoting NLRB v.
Noel Canning, 583 U.S. 513, 572 (2014) (Scalia, J., concurring in the judgment)), post-
ratification practice inconsistent with the text’s original meaning “obviously cannot
overcome or alter that text,” id. (quoting Heller v. District of Columbia (Heller II), 670
F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)). Thus, I must determine
whether the principles revealed by nineteenth-century evidence are consistent with
principles that predated that time.
As the majority helpfully explains, nineteenth-century America was a place of
improved weapons technologies and increased interpersonal violence. See Majority Op. at
49–51. This prompted widespread legislative responses to the dangers posed by the sale,
possession, and carry of weapon weapons considered particularly “dangerous” or “deadly.”
Between the start of the nineteenth century and the beginning of the Civil War, at least six
jurisdictions outlawed the possession, sale, or exchange of weapons like pistols, Bowie
knives, or slung-shots.35 At least four jurisdictions taxed the ownership or sale of such
35 Act of Dec. 25, 1837, § 1, 1837 Ga. Pub. Acts 90, 90 (possession or sale of Bowie
knives, pistols, dirks, sword canes, or spears); Act of Jan. 27, 1838, ch. CXXVII, § 1, 1837–
38 Tenn. Acts. 200, 200 (sale or exchange of Bowie knives, Arkansas tooth-picks, or
similar knives); Act of Nov. 12, 1849, No. 36, § 1, 1849 Vt. Pub. Acts 26, 26 (possession,
manufacture, sale, or exchange of slung shots); Act of Apr. 7, 1849, ch. 278, § 1, 1849
(Continued)

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weapons.36 Meanwhile, at least seven jurisdictions prohibited the concealed carry of
dangerous weapons in all or most circumstances,37 while about four jurisdictions prohibited
all carry—concealed or open—of dangerous weapons.38 Efforts to crack down on these
weapons only increased after the Civil War. From Reconstruction through the end of the
nineteenth century, at least nine jurisdictions enacted or reenacted statutes outlawing the
possession, sale, or exchange of dangerous weapons,39 while six jurisdictions taxed their
N.Y. Laws 403, 403 (manufacture, sale, or exchange of slung shots); Act of Apr. 15, 1850,
ch. 194, § 2, 1850 Mass. Acts & Resolves 401, 401 (manufacture or sale of slung shots);
Act of Mar. 10, 1856, ch. 636, § 1, 1855 Ky. Acts 96, 96 (buying or selling of Colts, brass
knuckles, or slung-shots).
36 Act of June 30, 1837, No. 11, §§ 1–2, 1837 Ala. Acts 7, 7 (sale of Bowie knives
and Arkansas tooth-picks); Act of Feb. 10, 1838, No. 21, § 1, 1838 Fla. Acts 36, 36 (sale
of dirks, pocket pistols, sword canes, and Bowie knives); Act of Jan. 28, 1851, ch. CXXL,
§ 5, 1850–51 N.C. Laws 241, 243 (property tax on pistols, Bowie knives, and sword canes,
but only if “worn or carried about the person of the owner”), Act of Mar. 2, 1854, ch. 1,
§ 1, 1854 Miss. Laws 49, 50 (property tax on Bowie knives, Arkansas tooth-picks, sword
canes, and dueling or pocket pistols).
37 Act of Mar. 25, 1813, § 1, 1813 La. Acts 172, 172; Act of Jan. 14, 1820, ch.
XXIII, § 1, 1819 Ind. Laws 39, 39; Act of Jan. 28, 1835, ch. 860, 1835 Fla. Acts 318, 318;
Revised Statutes of the State of Arkansas, Adopted at the October Session of the General
Assembly of Said State, A.D. 1837, at 280 (1838); Act of Feb. 2, 1838, ch. 101, § 1, 1838
Va. Acts 76, 76; Act of Feb. 1, 1839, No. 77, § 1, 1838 Ala. Acts 67, 67; Act of Mar. 18,
1859, § 1, 1859 Ohio Acts 56, 56.
38 Act of Feb. 3, 1813, in 2 A Digest of the Statute Law of Kentucky: Being a
Collection of all the Acts of the General Assembly of a Public and Permanent Nature, From
the Commencement of the Government to May Session 1822, at 1010, 1010 (William Littell
& Jacob Swigert eds., 1822); Act of Oct. 19, 1821, ch. XIII, 1821 Tenn. Acts. 15, 15; Act
of Dec. 25, 1837, § 1, 1837 Ga. Pub. Acts 90, 90; Act of Feb. 2, 1860, § 2, 1859–60 N.M.
Laws 94, 94.
39 Act of Aug. 6, 1868, No. 13, ch. VII, § 11, 1868 Fla. Acts 67, 95 (manufacture or
sale of slung shots); N.D. Rev. Code § 7313, N.D. Penal Code § 455 (1877) (manufacture,
sale, or exchange of slung shots); Act of Mar. 17, 1789, ch. XCVI, § 1, 1879 Tenn. Acts
(Continued)

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135, 135–36 (sale or exchange of belt pistols, pocket pistols, revolvers, or any other kind
of pistol except army or navy pistols); Act of July 26, 1881, ch. 676, § 408, 1881 N.Y.
Laws 1, 102 (manufacture, sale, or exchange of slung shots, billies, sand clubs, or metal
knuckles); Act of Apr. 1, 1881, No. XCVI, § 3, 1881 Ark. Acts 191, 192 (sale or exchange
of dirks, Bowie knives, swords, spears, brass or metal knucks, razors, or pistols (except
army or navy pistols)); 1881 Mass. Pub. Stats. 1132, 1164, Pt. IV, ch. 206, § 11
(manufacture or sale of slung shots or metal knuckles); Act of Apr. 16, 1881, § 1, 1881 Ill.
Laws 73, 73 (possession, sale, or exchange of slung shots, metallic knuckles, or other
deadly weapons); Minn. Penal Code § 333 (1886) (manufacture, sale, or exchange of slung
shots, sand clubs, or metal knuckles); 1890 Okla. Sess. Laws. 412, 476 (manufacture, sale,
or exchange of slung shots).

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ownership or sale.40 Additionally, at least twenty-three jurisdictions prohibited the
concealed carry of dangerous weapons,41 while at least ten jurisdictions prohibited all carry
of such weapons.42
40 Act of Feb. 22, 1866, § 11, 1865–66 Ala. Acts 3, 7 (property tax on pistols,
revolvers, Bowie knives, and knives of like description); Act of May 13, 1871, ch. 33, Art.
III, § 1, 1871 Miss. Laws 816, 819–20 (property tax on pistols, dirks, Bowie knives, and
sword-canes); Act of Mar. 31, 1875, ch. 230, Sch. B, § 18, 1874–75 Va. Acts 281, 282–83
(property tax on Bowie knives, dirks, rifles, muskets, and other firearms (except those
issued by the state to militia members)); Act of Dec. 9, 1882, Tit. II, No. 18, § 2, 1882–83
Ga. Acts 34, 37 (tax on dealers in pistols, revolvers, dirks, or Bowie knives); Act of Jan. 3,
1890, No. 1, § 1, 1889 Fla. Acts 1, 6 (tax on dealers in pistols, Bowie knives, or dirks); Act
of June 9, 1893, ch. 216, § 35, 1891–92 Ky. Acts 930, 1001 (tax on dealers in pistols,
Bowie knives, dirks, brass knuckles, or slung-shots).
41 Act of Mar. 1, 1864, ch. CXXVII, § 1, 1863–64 Cal. Stat. 115, 115–16; Act of
Jan. 11, 1865, § 1, 1864 Mont. Acts 355, 355; Act of Feb. 27, 1867, ch. XXX, § 1, 1867
Nev. Stat. 66, 66; Act of Jan. 9, 1868, ch. XXII, § 149, 1867 Colo. Rev. Stat. 191, 229;
1887–89 D.C. Stat. 154, 178, D.C. Crimes § 119; Act of Feb. 15, 1872, ch. 7, § 1, 1872
Wis. Gen. Laws 17, 17; Act of Feb. 26, 1872, ch. 42, § 246, 1872 Md. Laws 56, 57; Act of
Mar. 4, 1873, ch. 58, § 25, 1873 Nev. Stat. 719, 724; N.D. Rev. Code § 7313, N.D. Penal
Code § 457 (1877); Act of Feb. 28, 1878, ch. XLVI, § 1, 1878 Miss. Laws 175, 175; Act
of Mar. 5, 1879, ch. 127, § 1, 1879 N.C. Laws 231, 231; Act of Dec. 24, 1880, No. 361,
§ 1, 1880 S.C. Acts 447, 447–48; Act of Feb. 19, 1881, No. 44, § 1, 1880 Ala. Acts 38, 38;
1881 Wash. Code 157, 181, Wash. Crim. Code § 929; Act of Mar. 6, 1882, ch. 219, § 1,
1881–82 Va. Acts 233, 233; Act of Apr. 16, 1681, § 3, 1881 Ill. Laws 73, 74; Act of Mar.
5, 1883, § 1, 1883 Mo. Laws 76, 76; Act of Aug. 17, 1883, No. 93, § 1, 1882–88 Ga. Acts
48, 48–49; 1887 Ore. Code 886, 977, Ore. Crim. Code § 1969; Act of Apr. 22, 1875, No.
97, § 1, 1875 Mich. Acts. 136, 136; Act of Mar. 27, 1891, ch. 105, § 209, 1891 N.Y. Laws
127, 176; Act of May 3, 1893, ch. 1180, § 1, 1893 R.I. Acts 231, 231–32; Act of Mar. 3,
1899, § 117, 1867–1905 Ark. Acts 121, 139.
42 Act of Jan. 29, 1869, ch. XXXII, § 1, 1869 N.M. Laws 72, 72; Act of June 11,
1870, ch. XIII, § 1, 1869–70 Tenn. Acts. 28, 29; Act of Dec. 15, 1871, ch. XC, § 1, 1871
Tex. Acts 25, 25; Act of Dec. 2, 1875, ch. 52, § 1, 1876 Wyo. Laws 352, 352; Act of Mar.
4, 1881, ch. 37, § 23, 1881 Kan. Laws 79, 92; Act of Apr. 1, 1881, No. XCVI, § 1, 1891
Ark. Acts 191, 191; Act of Mar. 24, 1882, ch. CXXV, § 1, 1882 W. Va. Acts 421, 421–22;
Act of Mar. 18, 1889, No. 13, § 1, 1889 Ariz. Laws 16, 16; Act of Feb. 4, 1889, § 1, 1889
Idaho Laws 23, 23; 1890 Okla. Territory Stats. 495, 495, Art. 47, §§ 1–2.

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Relying on these statutes, Appellees argue that there is a historical tradition of
prohibiting the keeping or carrying of exceptionally dangerous weapons that are closely
associated with criminal activity. And as a matter of historical fact, this does seem to have
been the main problem these statutes addressed. See Robert Leider, Our Non-Originalist
Right to Bear Arms, 89 Ind. L.J. 1587, 1602 (2014) (explaining that the Antebellum
regulations were enacted because the presence of dangerous and deadly weapons could
turn “slight personal offenses” into “deadly conflicts”); Robert Spitzer, Understanding
Gun Law History After Bruen: Moving Forward by Looking Back, 51 Fordham Urb. L.J.
57, 90 (2023) (describing how the Bowie knife in particular was used widely in fights,
duels, brawls, and other criminal activities). But we must remember that historic
regulations are relevant only insofar as they evince constitutional principles that undergird
the right. Rahimi, 144 S. Ct. at 1898. And when determining what that principle is, we
ought to consider, when possible, how contemporary courts passed on the constitutionality
of those laws. See Bruen, 597 U.S. at 27 (“[I]f some jurisdictions actually attempted to
enact analogous regulations during this timeframe, but those proposals were rejected on
constitutional grounds, that rejection surely would provide some probative evidence of
constitutionality.”); id. at 68 (explaining that “judicial scrutiny” of past laws reveals “the
basis of their perceived legality”); id. (declining to consider some regulations “[a]bsent any
evidence explaining why [they] were understood to comport with the Second
Amendment”); cf. The Federalist No. 37, at 236 (James Madison) (Jacob E. Cooke ed.,
1961) (explaining that “a series of particular discussions and adjudications” can help
ascertain the meaning of constitutional provisions). Indeed, both Heller and Bruen relied

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extensively on state court decisions to understand the same laws Appellees put forth to
justify Maryland’s ban. See 554 U.S. at 629; 597 U.S. at 52–55, 64–66, 68 & n.30.
Fortunately, we do not lack reading material. Throughout the nineteenth century,
state courts often entertained challenges to the very statutes Appellees cite. Many of these
decisions upheld various statutes because they merely regulated the manner of carrying
these weapons, without considering whether their possession or carry could be completely
prohibited.43 Yet some decisions went a step further and considered the kinds of arms
citizens could be prohibited from keeping or carrying. And when drawing this line, courts
generally tracked a distinction we’ve seen before: that between dangerous and unusual
weapons and common weapons.
The best way to grasp this principle is to see it in action. I’ll start with two decisions
out of Tennessee. In Aymette v. State, a man was convicted for wearing a Bowie knife
concealed under his clothing, which violated Tennessee’s 1838 concealed carry ban. 21
Tenn. at 156; see Act of Jan. 27, 1838, ch. CXXVII, § 2, 1837–38 Tenn. Acts. 200, 200–
01. The Tennessee Supreme Court began its opinion by explaining that the right to keep
and bear arms was “adopted in reference” to the events of the Glorious Revolution and
exists for the “common defense” of “the people.” 21 Tenn. at 157–58. In light of this
43 See, e.g., State v. Mitchell, 3 Blackf. 229, 229 (Ind. 1833); Chandler, 5 La. Ann.
at 489–90; Pope’s Ex’r v. Ashley’s Ex’r, 13 Ark. 262, 267 (1853); State v. Jumel, 13 La.
Ann. 399, 400 (1858); Sutton v. State, 12 Fla. 135, 136–37 (1867); Carroll v. State, 28 Ark.
99, 101 (1872); State v. Speller, 86 N.C. 697, 700 (1882); State v. Bias, 37 La. Ann. 259,
260 (1885); State v. Shelby, 90 Mo. 302, 304–06 (1886); State v. Wilforth, 74 Mo. 528,
530–31 (1891); Commonwealth v. Murphy, 166 Mass. 171, 172–73 (1896); In re Brickey,
8 Idaho 597 (1902); but see Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 91–92 (1822)
(holding that a legislature could not even regulate the carry of weapons).

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purpose, the court found that the right protects those arms “usually employed in civilized
warfare[] and that constitute the ordinary military equipment.” Id. These being protected
arms, the court concluded that the legislature may “regulat[e] the manner in which [such]
arms may be employed,” but it may not totally prohibit their use. Id. at 159. By contrast,
it explained, the right does not protect “those weapons which are usually employed in
private broils, and which are efficient only in the hands of the robber and the assassin.” Id.
at 158. These weapons “would be useless in war” and “could not be employed
advantageously in the common defense of the citizens.” Id. “The legislature, therefore,
ha[s] a right to prohibit the wearing or keeping [of] weapons dangerous to the peace and
safety of the citizens, and which are not usual in civilized warfare, or would not contribute
to the common defense.” Id. at 159. Applying these principles, the court upheld the
conviction, since the statute prohibited concealed carry of a Bowie knife—a weapon the
court deemed uncommon for lawful purposes and closely associated with criminal activity.
See id. at 161–62.
After the Civil War, Tennessee went a step further and banned all carry of certain
dangerous weapons, including pistols and revolvers. Act of June 11, 1870, ch. XIII, § 1,
1869–70 Tenn. Acts 28, 28. This prompted new constitutional challenges. In Andrews v.
State, a defendant moved to quash an indictment against him for violating the statute
because it failed to specify what kind of pistol he was carrying. 50 Tenn. at 166. As in
Aymette, the Tennessee Supreme Court recognized that the right to keep and bear arms
only protects “the usual arms of the citizen of the country, and the use of which will
properly train and render him efficient in defense of his own liberties as well as of the

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State.” Id. at 179 (including “the rifle of all descriptions, the shot gun, the musket, and
[the] repeater”). And even though the uses of common arms could be regulated “to
subserve the general good” (such as to prevent crime), their keep and carry could not be
completely prohibited, for “[t]he power to regulate does not fairly mean the power to
prohibit; on the contrary, to regulate, necessarily involves the existence of the thing or act
to be regulated.” Id. at 179–81. The court then applied these principles to the statute before
it. It first upheld the prohibition on carrying dirks, sword canes, Spanish stilettos, and
pistols, since, under Aymette, these were uncommon for lawful purposes and closely
associated with criminal activity. Id. at 186. But the court found that the Act potentially
included military revolvers—i.e., weapons commonly owned for public defense—within
its reach. Id. If so, then “the prohibition of the statute is too broad to be allowed to stand,”
since it would completely prohibit the bearing of a protected arm. Id. at 187–88. The court
therefore quashed the indictment for failing to specify which weapon the defendant was
carrying. Id. at 192. 44
Next, consider the Texas Supreme Court’s decision in State v. Duke, 42 Tex. 455.
Duke involved a constitutional challenge to an 1871 Texas statute prohibiting the carry of
“deadly” weapons, including pistols, unless the person had reasonable grounds to fear an
44 One year later, the Tennessee legislature amended the statute to allow for the carry
of “an army pistol, or such as are commonly carried and used in the United States Army,”
openly in a person’s hands. Act of Dec. 14, 1871, ch. XC, § 1, 1871 Tenn. Acts 81, 81.
The Tennessee Supreme Court subsequently upheld the conviction of a man who carried a
military revolver concealed, concluding that “[t]his was a legitimate exercise of the power
to regulate the wearing of the weapon” and did “not interfere with the right of keeping the
arm, or of bearing it for common defense.” State v. Wilburn, 66 Tenn. 57, 63 (1872); see
also Porter v. State, 66 Tenn. 106, 108 (1874).

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immediate and pressing attack on his person. Id. at 456; Act of Dec. 15, 1871, ch. XC, § 1,
1871 Tex. Acts 25, 25. Unlike the Tennessee Supreme Court, the Texas Supreme Court
took a broader view of the Second Amendment right, explaining that it protects “such arms
as are commonly kept, according to the customs of the people, and are appropriate for open
and manly use in self-defense, as well as such as are proper for the defense of the State.”
Duke, 42 Tex. at 458. The court’s definition thus encompassed arms common for public
and private defense.45 The court then explained that, while the legislature could regulate
the right to carry such common arms, it could not so heavily regulate them as to “trespass[]
on the constitutional rights of the citizen.” Id. at 459. Yet the court ultimately concluded
that the Texas statute did not go so far as to infringe the right, since it still permitted
individuals to carry for self-defense when they had “reasonable grounds” to fear for their
safety. Id.
Finally, Fife v. State, 31 Ark. 455 (1876). In Fife, the Arkansas Supreme Court
upheld a man’s conviction for openly carrying a pocket pistol, in violation of Arkansas’
1875 ban on the carry of pistols. Id. at 456–57; Act of Feb. 16, 1875, § 1, 1874–75 Ark.
Acts 156, 156. Relying on Aymette, the court found that “the arms which [the Second
Amendment] guarantees American citizens the right to keep and to bear, are such as are
needful to, and ordinarily used by a well regulated militia, and such as are necessary and
45 This was an abrupt departure from the court’s earlier decision in English v. State,
where it had held that the Second Amendment only protects arms “useful and proper to an
armed militia.” 35 Tex. 473, 474 (1871); see Duke, 42 Tex. at 458 (“We acquiesce in the
[English] decision, but do not adopt the opinion expressed that the word ‘arms,’ in the Bill
of Rights, refers only to the arms of a militiaman or soldier.”).

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suitable to a free people, to enable them to resist oppression, prevent usurpation, [and] repel
invasion.” Fife, 31 Ark. at 458. Yet the pistol in question was no such arm. It was “not
such as is in ordinary use, and effective as a weapon of war, and useful and necessary for
‘the common defense.’” Id. at 461. And it was also “such as is usually carried in the
pocket, or of a size to be concealed about the person, and used in private quarrels and
brawls.” Id. Thus, the court concluded that the legislature could completely prohibit the
carry of such firearms “without any infringement of the constitutional right of the citizens
of the State to keep and bear arms for their common defense.”46 Id. at 462.
What do these four cases have in common? At a basic level, these state courts
disagreed over the underlying purposes of the Second Amendment: Aymette, Andrews,
and Fife thought that it only exists to provide for the public defense, while Duke held that
it also protects individual self-defense. (In hindsight, and with the benefit of Heller, we
now know that Duke got it right. Heller, 554 U.S. at 597–600.) Yet despite this preliminary
disagreement, all four courts assessed the challenged statutes according to the same
principle. Each of them determined whether the regulated weapon was in common use for
lawful purposes. If it was, then they held that the government could regulate the possession
46 The Arkansas Supreme Court reached a different result two years later in Wilson
v. State, 33 Ark. 557 (1878). This time, a defendant was charged and convicted for openly
carrying an army revolver “commonly used in warfare.” Id. at 569. The Arkansas Supreme
Court explained that, this being a protected “war arm[],” the legislature could only regulate
the way it was carried, such as prohibiting its carry concealed. Id. at 560. “But to prohibit
the citizen from wearing or carrying a war arm” the Court held, was “an unwarranted
restriction upon his constitutional right to keep and bear arms.” Id. “If cowardly and
dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must
be prevented by the penitentiary and gallows, and not by a general deprivation of a
constitutional privilege.” Id.

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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.
This reasoning was the rule, not the exception. With possibly two outliers, every
state court that considered the types of arms that could be prohibited coalesced around this
basic principle.47 These courts may have disagreed over the purposes for which the right
47 See Aymette, 21 Tenn. at 158; State v. Smith, 11 La. Ann. 633, 633–34 (1856)
(“The arms there spoken of are such as are borne by a people in war, or at least carried
openly. . . . This was never intended to prevent the individual States from adopting such
measures of police as might be necessary, in order to protect the orderly and well-disposed
citizens from the treacherous use of weapons not even designed for any purpose of public
defence, and used most frequently by evil-disposed men who seek an advantage over their
antagonists, in the disturbances and breaches of the peace which they are prone to
provide.”); Cockrum, 24 Tex. at 402–03 (holding that the legislature could regulate the use
of Bowie knives but could not completely prohibit their use, since these weapons were “in
common use” for, among other things, “lawful defense”); English, 35 Tex. at 474 (“[T]he
provision protects only the right to ‘keep’ such ‘arms’ as are used for purposes of war, in
distinction from those which are employed in quarrels and broils, and fights between
maddened individuals, since such only are properly known by the name ‘arms,’ and such
only are adapted to promote ‘the security of a free state.’”); Duke, 42 Tex. at 455; Andrews,
50 Tenn. at 179; Wilburn, 66 Tenn. at 59–63; Fife, 31 Ark. at 461; State v. Burgoyne, 75
Tenn. 173, 175–76 (1881) (reaffirming Aymette and Andrews); Dabs v. State, 39 Ark. 353,
355 (1882) (reaffirming Fife); State v. Workman, 35 W. Va. 367, 373 (1891) (“So, also, in
regard to the kind of arms referred to in the amendment, it must be held to refer to the
weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets,—
arms to be used in defending the state and civil liberty,—and not to pistols, bowie-knife,
brass knuckles, billies, and such other weapons as are usually employed in brawls, street
fights, duels, and affrays, and are only habitually carried by bullies, blackguards, and
desperadoes, to the terror of the community and the injury of the state.”); see also Reid, 1
Ala. at 619 (“[T]he Legislature cannot inhibit the citizen from bearing arms openly,
because it authorizes him to bear them for the purposes of defending himself and the State,
and it is only when carried openly, that they can be efficiently used for defence.”).
There are two potential outliers that merit discussion. In Nunn v. State, the Georgia
Supreme Court held that Georgia’s 1837 statute was unconstitutional insofar as it
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was secured, the line between a regulation and a prohibition, or how to categorize particular
weapons (e.g., is a Bowie knife dangerous and unusual?). Yet they widely concurred that
the government can prohibit particular weapons only if they are (1) particularly useful for
criminal activity, and (2) not common for lawful purposes. See William Baude & Robert
Leider, The General Law Right to Bear Arms, 99 Notre Dame L. Rev. (forthcoming 2024)
(manuscript at 28). By contrast, these same courts broadly concluded that the government
can regulate, but cannot prohibit, the keeping or bearing of arms commonly used for lawful
prohibited both the concealed and open carry of certain dangerous weapons. 1 Ga. 243,
251 (1846); Act of Dec. 25, 1837, supra, § 1, at 90. Along the way, the court explained
that the Second Amendment guarantees the right “to keep and bear arms of every
description, and not such as are merely used by the militia.” Nunn, 1 Ga. at 251. One
could read this decision as holding that the Second Amendment does not permit the
banning of any weapons, even dangerous and unusual ones. See Hill v. State, 53 Ga. 472,
475–76 (1874) (interpreting Nunn to establish that weapons like pocket-pistols, dirks,
sword-canes, toothpicks, Bowie knives, and other dangerous weapons were protected by
the Second Amendment). Insofar as this is what the Georgia Supreme Court held, it is
inconsistent with the overwhelming authority to the contrary.
The North Carolina Supreme Court arguably swung too far in the opposite direction
in State v. Huntly, 25 N.C. 418 (1843) (per curiam). In Huntly, the court found that North
Carolina common law incorporated the common-law offense recognized by the Statute of
Northampton. Id. at 421–22. It then concluded that all guns were “unusual” weapons
within the meaning of that offense, even though they were commonly owned at the time,
because they were not commonly carried. Id. at 422. But this position conflicts with that
of English and American treatise writers, which distinguished dangerous and unusual
weapons from “common” weapons without limiting the latter category to weapons
commonly carried. See, e.g., Hawkins, supra, at 136; 1 Russell, supra, at 271–272. It is
also inconsistent with the multitude of other state court decisions from this period that
focused on whether a weapon was commonly possessed or used, not carried. And it is
likewise at odds with Heller, which similarly focused on possession or usage. 554 U.S. at
624–25. So Huntly, like Nunn, is an outlier of little value in discerning the nature of
“dangerous and unusual” weapons in the Anglo-American legal tradition. See Bruen, 597
U.S. at 65 (“[W]e will not give disproportionate weight to . . . a pair of court decisions . . .
that contradicts the overwhelming majority of other evidence regarding the right to keep
and bear arms.” (internal quotation marks omitted)).

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purposes. See id. It was on this basis that nineteenth-century regulations were assessed,
and only on this basis that they withstood (or failed) constitutional scrutiny.48
We can now step back and view the whole historical picture.49 From English
common law to early American practice, many jurists contended that the carry of
48 Late nineteenth-century treatise writers agreed on this point, too, though they
typically held the view that the right only protects weapons commonly used for defense of
the body politic. See Cooley, supra, at 299 (“The arms intended by the Constitution are
such as are suitable for the general defence of the community against invasion or
oppression, and the secret carrying of those suited merely to deadly individual encounters
may be prohibited.”); 2 Joel Prentiss Bishop, Commentaries on the Criminal Law § 124, at
77–75 (1858) (“[T]he provision protects only the right to ‘keep’ such ‘arms’ as are used
for purposes of war, in distinction from those which are employed in quarrels and brawls
and fights between maddened individuals; since such, only, are properly known by the
name of ‘arms;’ and such, only, are adapted to promote ‘the security of a free State.’”); 2
Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes § 793, at 469 (1883)
(“[T]he keeping and bearing of arms has reference only to war, and possibly also to
insurrections wherein the forms of war as far as practicable observed; yet certainly not to
broils, bravado and tumult, disturbing the public repose, or to private assassination and
secret revenge.”); Henry Campbell Black, Handbook of American Constitutional Law,
§ 144, at 403 (1895) (“The ‘arms’ here meant are those of a soldier. They do not include
dirks, Bowie knives, and such other weapons as are used in brawls, fights, and riots. The
citizen has at all times the right to keep such arms of modern warfare, if without danger to
others, and for purposes of training and efficiency in their use, but not such weapons as are
only intended to be instruments of private feuds or vengeance.”); 2 Emlin McClain, A
Treatise on the Criminal Law as Now Administered in the United States § 1030, at 205
(1897) (“The constitutional provisions as to the right to bear arms relate to the arms of
warfare which the subject may keep and use for purposes of training and defense, and not
to such other weapons as are employed in riots and disorders.”).
49 As in Bruen, I will not consider twentieth-century historical evidence that may
conflict with earlier evidence. 597 U.S. at 66. But I do note in passing that my
understanding of the tradition is consistent with the Court’s decision in Miller. In its brief
before the Supreme Court, the government argued that the weapons regulated by the
National Firearms Act had “no legitimate use in the hands of private individuals” and
“frequently constitute[d] the arsenal of the ‘public enemy’ and the ‘gangster.’” Brief of
the United States at 20, Miller, 307 U.S. 174. In other words, the government seems to
have claimed that the weapons regulated by the National Firearms Act were dangerous and
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dangerous and unusual weapons, unlike common weapons, could be subject to heightened
regulation. Several colonies and states eventually enacted laws regulating the carry of such
weapons. Later, as state regulations and bans of dangerous weapons multiplied,
nineteenth-century state courts drew from the earlier tradition to assess the constitutionality
of the challenged regulations.50 They widely concluded that the Second Amendment
permits the government to ban dangerous and unusual weapons but that it does not permit
the government to ban weapons commonly used for lawful purposes. The line between
dangerous and unusual weapons, on the one hand, and common weapons, on the other, thus
has deep roots in our tradition.
Besides being deeply rooted, this principle also accords with the customary basis of
the Second Amendment. The Second Amendment recognizes a preexisting right rooted in
unusual. (Indeed, the government quoted extensively from the nineteenth-century state
court decisions, most notably Aymette. See id. at 18–20.) And the Court in Miller accepted
this argument, for it ultimately held, as explained in Heller, that dangerous weapons like
short-barreled shotguns were not in common use for lawful purposes. See 554 U.S. at 625.
50 Indeed, many state courts and treatise writers explicitly treated nineteenth-century
statutes as of the same tradition as the Statute of Northampton. See, e.g., 2 Bishop,
Statutory Crimes, supra, §§ 783–86, at 464–65 (“This common-law offence has also been
extended, regulated, and confirmed by statutes in some of our States.”); 2 Bishop, Criminal
Law, supra, §§ 120–21, at 73–74 (same); Humphreys, supra, at 482 (“Riding or going
armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying
the people of the land, which is punishable by forfeiture of arms, and fine and
imprisonment. . . . We have a statute on the subject, relating to concealed weapons.”);
Wharton, supra, at 527–28; Workman, 35 W. Va. at 372 (drawing from the Statute to justify
a carry regulation); English, 35 Tex. at 475–76 (same); see also Christpoher Gustavus
Tiedeman, Treatise on the Limitations of Police Power in the United States Considered
from Both a Civil and Criminal Standpoint § 143, at 503 (1886) (“It cannot be questioned
that the habit of carrying concealed weapons tends to engender strife . . . . The prohibition
of carrying concealed weapons is, therefore, an appropriate remedy for the suppression of
street affrays.”).

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the practices and usages of the American people. At the Founding, the people commonly
kept certain arms for lawful purposes like self-defense and brought those same arms to
perform militia service. Heller, 554 U.S. at 624–25. So it makes sense that, when
identifying the weapons that fall within the scope of the right, our tradition would at least
protect those arms customarily held by the people for lawful purposes. At the same time,
we know that “the right was not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.” Id. at 626. The government has an
obligation to combat lawlessness and deter violence. Our tradition thus permits the
government to prohibit weapons particularly useful for unlawful activity, so long as those
weapons are not of the kind common for lawful purposes. In this way, the government can
target lawbreaking and violence without trammeling the rights of the remaining, law-
abiding members of the body politic.
This, then, is the history underlying Heller’s “dangerous and unusual” limitation on
the right to possess or carry certain arms. The Supreme Court may not have “undertake[n]
an exhaustive historical analysis” of the exact details of this tradition. Heller, 554 U.S. at
626. But it nevertheless picked up on an enduring principle that stretched back far before
and extended far after the Second Amendment’s adoption. This principle reveals that the
Second Amendment permits the government to ban weapons that are not commonly
possessed for lawful purposes and are particularly useful for criminal activity. But it does
not permit the government to ban weapons that are not particularly useful for unlawful

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activity,51 nor weapons that are commonly possessed for lawful purposes, even if they
happen to be dangerous.
b. Maryland’s ban prohibits weapons that are commonly used for
lawful purposes.
Having canvassed the historical record, I now apply my findings to this dispute.
Appellees indirectly attempt to place their law within the historical tradition of regulating
dangerous and unusual weapons, but to do so they must prove two things. First, Appellees
must show that the banned weapons are “not typically possessed by law-abiding citizens
for lawful purposes.” Heller, 554 U.S. at 625. Second, Appellees must show that the
banned weapons are particularly useful for criminal activity. If Appellees make both
showings, then Maryland’s ban is constitutional. But if the prohibited weapons are
51 This conclusion might not seem obvious at first, but it follows necessarily from
the foregoing discussion. The tradition of regulating dangerous and unusual weapons
applied only to weapons that were unusual and “dangerous,” i.e., particularly useful for
unlawful activity. In other words, that a weapon was dangerous was a necessary, but not
sufficient, condition for it to fall within this tradition. It therefore follows that if a weapon
is not “dangerous,” as that term was historically understood, then it may not be prohibited
under this tradition. See Bruen, 597 U.S. at 29 (focusing on whether a historic regulation
was “comparably justified”); Rahimi, 144 S. Ct. at 1898 (instructing us to examine the
“reasons” a historic law was enacted). There might be other regulatory traditions that could
justify such a ban (I venture no opinion on this question today), but the tradition of
regulating dangerous and unusual traditions wouldn’t be one of them.
Consider an example. Suppose that, as firearms proliferate, hunting crossbows
become increasingly uncommon. Suppose further that Maryland subsequently banned all
hunting crossbows. If Maryland tried to justify its law by pointing to the tradition of
regulating dangerous and unusual weapons, it could not simply assert that hunting
crossbows are now unusual. Rather, Maryland would also have to show that hunting
crossbows are particularly useful for criminal activity. Otherwise, Maryland’s ban would
not be analogous to historic regulations of dangerous and unusual weapons, since it would
not “impose[] similar restrictions for similar reasons” as the laws within that tradition.
Rahimi, 144 S. Ct. at 1898.

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commonly possessed for lawful purposes, or if they are not dangerous, then they cannot be
banned consistent with the Second Amendment.
I start with common usage because it turns out to be dispositive. A thing is
“common” if it has “the quality of being public or generally used.” Bryan Garner, Garner’s
Dictionary of Legal Usage 179 (3d ed. 2011). Whether a type of weapon is in common
use is thus largely an “objective and largely statistical inquiry” that examines broad patterns
of usage and the reasons behind that usage. Kolbe, 849 U.S. at 153 (Traxler, J., dissenting)
(quoting Hollis v. Lynch, 827 F.3d 436, 449 (5th Cir. 2016)); Duncan v. Becerra, 970 F.3d
1133, 1147 (9th Cir. 2020); see also Heller, 554 U.S. at 628–29 (noting that handguns are
common because they are “overwhelmingly chosen by American society for [self-
defense]”); Caetano v. Massachusetts, 577 U.S. 411, 420 (2016) (Alito, J., concurring)
(explaining that tasers and stun guns are common because hundreds of thousands of them
have been sold to private citizens and they are considered a legitimate means of self-
defense). Importantly, we assess common usage based on usage patterns today, not those
at the time of the Founding. See Heller, 554 U.S. at 582; Caetano, 577 U.S. at 411–12
(reversing a state court for examining whether stun guns were in common use at the
Founding); Bruen, 597 U.S. at 47 (“Whatever the likelihood that handguns were considered
‘dangerous and unusual’ during the colonial period, they are indisputably in ‘common use’
for self-defense today.”). And in conducting this inquiry, we consider the practices of all
Americans, not simply those within the state of Maryland. See Heller, 554 U.S. at 628
(explaining that handguns are “overwhelmingly chosen by American society for [self-
defense]” (emphasis added)); Bruen, 597 U.S. at 26 (describing the Second Amendment as

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a balance “struck by the traditions of the American people” (emphasis added)); see also
Caetano, 577 U.S. at 420 (Alito, J., concurring) (examining taser and stun gun usage
“across the country”).
I have no difficulty concluding that the class of semiautomatic52 rifles banned by
Maryland’s law are in common use by law-abiding citizens today. The easiest way to see
why is to focus on one weapon within this class, the AR-15—the most popular (and most
polarizing) semiautomatic rifle in circulation today.53 The AR-15 was first developed as a
military rifle in the 1950s by ArmaLite. After limited success, ArmaLite sold the patent to
Colt, which rebranded it as the M-16 and sold it to the military for use in Vietnam in the
1960s. Later, Colt created a semiautomatic version of the AR-15 and began marketing it
52 A “semiautomatic” rifle is one “that fires only one shot with each pull of the
trigger, and which requires no manual manipulation by the operator to place another round
in the chamber after each round is fired.” Staples v. United States, 511 U.S. 600, 602 n.1
(1994). It is distinct from an “automatic” rifle, which “fires repeatedly with a single pull
of the trigger” and “continue[s] to fire until its trigger is released or the ammunition is
exhausted.” Id.; see also Garland v. Cargill, 602 U.S. 406, 410–11 (2024).
53 As I explain elsewhere, the tradition of regulating dangerous and unusual weapons
focused on types or classes of weapons, which it distinguished by their functional
characteristics. See United States v. Price, No. 22-4609, slip op. at 70–73 (4th Cir. Aug.
6, 2024) (Richardson, J., dissenting). Maryland’s law targets a class of semiautomatic
rifles that are distinguished by certain functional characteristics. See Md. Code Ann., Crim.
Law § 4-301(h); Md. Code Ann., Pub. Safety § 5-101(r)(2). The appropriate analysis,
therefore, is whether these weapons as a class are dangerous and unusual. And because
the AR-15 is one weapon within this class, if the AR-15 is in common use, it follows that
the class as a whole is in common use. Accordingly, I focus on the common usage of the
AR-15.

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to civilians and law enforcement. Colt’s patent expired in 1977, and other companies
began mass producing similar models for civilian use.54
Today, the AR-15 and its variants are one of the most popular and widely owned
firearms in the Nation. As of 2021, there are at least twenty-eight million AR-style
semiautomatic rifles in circulation.55 Roughly 2.8 million of those weapons entered the
market in 2020 alone, making up around 20% of all firearms sold that year. 56 For context,
this means that there are more AR-style rifles in the civilian market than there are Ford F-
Series pickup trucks on the road—the most popular truck in America.57 And when we look
at actual ownership statistics, the numbers tell the same story. Various studies estimate
54 For the history of the AR-15, see Greg Myre, A Brief History of the AR-15, NPR
(Feb. 28, 2018), https://www.npr.org/2018/02/28/588861820/a-brief-history-of-the-ar-15
[https://perma.cc/A6SK-8JYV]; Emily Witt, How the AR-15 Became an American Brand,
New Yorker (Sept. 27, 2023), https://www.newyorker.com/books/under-review/how-the-
ar-15-became-an-american-brand [https://perma.cc/J2Z4-JUBX]; Jon Schuppe, America’s
Rifle: Why So Many People Love the AR-15, NBC News (Dec. 27, 2017),
https://www.nbcnews.com/news/us-news/america-s-rifle-why-so-many-people-love-ar-
15-n831171 [https://perma.cc/9ELK-9857].
55 NSSF Releases Most Recent Firearm Production Figures, Nat’l Shooting Sports
Found. (Jan. 11, 2024), https://www.nssf.org/articles/nssf-releases-most-recent-firearm-
production-figures-2024/ [https://perma.cc/C533-T8TV].
56 Cong. Rsch. Serv., House-Passed Assault Weapons Ban of 2022 (H.R. 1808) 2
(Aug. 4, 2022); Nat’l Shooting Sports Found., Firearms Retailer Survey Report 9 (2021),
https://www3.nssf.org/share/PDF/pubs/Firearms-Retailer-Survey-Report-2021.pdf
[https://perma.cc/ZQC3-WNHH].
57 See Brett Foote, There Are Currently 16.1 Million Ford F-Series Pickups on U.S.
Roads, Ford Auth. (Apr. 9, 2021), https://fordauthority.com/2021/04/there-are-currently-
16-1-million-ford-f-series-pickups-on-u-s-roads/ [https://perma.cc/9DSQ-XMEE].

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that at least 16 million, but possibly up to 24.6 million, Americans own or have owned AR-
style rifles.58
Not only are these arms widely owned; they also are widely owned for many lawful
purposes. One survey from 2021 found that the most commonly reported reasons for
owning AR-style rifles are recreational target shooting (66% of respondents), 59 home
defense (61.9%),60 hunting (50.5%), defense outside the home (34.6%), and competitive
58 See Emily Guskin, Aadit Tambe & Jon Gerberg, Why Do Americans Own AR-
15s?, Wash. Post (Mar. 27, 2023), (estimating that about 16 million Americans—
approximately 20% of gun owners—own AR-15-style rifles); William English, 2021
National Firearms Survey: Updated Analysis Including Types of Firearms Owned 33
(May 13, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4109494
[https://perma.cc/9L8W-Y3HT] (estimating that 24.6 million Americans—approximately
30% of gun owners—have owned an AR-15 or similarly styled rifle); see also Nat’l
Shooting Sports Found., Sport Shooting Participation in the U.S. in 2020 iii (2020),
https://www3.nssf.org/share/PDF/pubs/Sport-Shooting-Participation-2020.pdf
[https://perma.cc/G353-9XME] (reporting that over 20 million American adults
participated in target shooting with AR-15-style rifles).
59 Target shooting is necessary for “maintain[ing] proficiency in firearm use,” which
is “an important corollary to . . . self-defense.” Ezell v. City of Chicago, 651 F.3d 684, 708
(7th Cir. 2011); see also Blizard, supra, at 60 (“From the proposition, that the possession
and the use of arms, to certain purposes, is lawful, it seems to follow, of necessary
consequence, that it cannot be unlawful to learn how to use them (for such lawful purposes)
with safety and effect.”); Andrews, 50 Tenn. at 178 (“[T]he right to keep arms . . . involves
the right to practice their use.”).
60 I pause to reject the majority’s distinction between “common use” and “common
possession,” Majority Op. at 39–40, and explain why “possession” is itself a “use.” As
stated, almost 62% of AR-15 owners point to self-defense of the home as their primary
reason for owning their weapons. But that does not mean those owners have ever had to
discharge their firearms for that purpose. On the contrary, keeping the arm is merely a
contingency. Yet in possessing the arm, those citizens are “using” it as a form of insurance.
The same can be said for those who possess firearms to be prepared in the event of hostile
invasion or tyrannical government. In those circumstances, keeping the arm functions both
as a backup plan and even as a deterrent. Though these might be passive “uses,” they are
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sports shooting (32.1%). English, supra, at 33–34. Another survey conducted in 2022
found that respondents reported self-defense (65%), target shooting (60%), the potential
breakdown of law and order (42%), and hunting (18%) as major reasons for owning AR-
15s. Guskin, Tambe & Gerberg, supra. 61 These are lawful purposes for owning weapons,
ones which have a long pedigree in our Nation’s tradition of firearm ownership and ones
recognized by Heller as protected by the Second Amendment.
It is therefore unsurprising that Appellees, faced with this overwhelming evidence,
do not contest that semiautomatic rifles like the AR-15 are common for lawful purposes. 62
Indeed, for many years now, this question has been “beyond debate.” Kolbe, 849 F.3d at
156 (Traxler, J., dissenting). In Staples v. United States, for example, the Supreme Court
contrasted semiautomatic rifles like AR-15s with “machineguns, sawed-off shotguns, and
artillery pieces,” finding that the former are “commonplace,” “generally available,” and
still uses. See Heller, 554 U.S. at 630 (using “ban the possession of handguns” and
“prohibition of their use” interchangeably and determining that handguns are commonly
used without discussing how often they’re fired).
61 See also Nat’l Shooting Sports Found., Modern Sporting Rifle Comprehensive
Consumer Report 18 (2022), https://www3.nssf.org/share/PDF/pubs/NSSF-MSR-
Comprehensive-Consumer-Report.pdf [https://perma.cc/GT6M-C97D] (finding that the
most commonly reported reasons for owning an AR-style rifle are recreational target
shooting and home and self-defense).
62 Appellees originally requested that we remand the case for further factfinding on
the common usage of semiautomatic rifles. The original panel would have honored that
request. Yet our Court has blazed ahead and resolved these issues before either the district
court or panel could take a first pass on them. So I must proceed using the best publicly
available information, ever mindful of the caution I must show in relying on legislative
facts. See Kadel v. Folwell, 100 F.4th 122, 204–06 (4th Cir. 2024) (Quattlebaum, J.,
dissenting).

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“widely accepted as lawful possessions.” 511 U.S. at 603, 610–12. After Heller, at least
two appellate courts reached this same conclusion, as did the authors of both Heller and
Bruen. See Heller II, 670 F.3d at 1261 (“We think it clear enough in the record that semi-
automatic rifles . . . are indeed in ‘common use . . . .’”); N.Y. State Rifle & Pistol Ass’n v.
Cuomo, 804 F.3d 242, 255 (2d Cir. 2015) (“Even accepting the most conservative estimates
cited by the parties and by amici, the assault weapons . . . at issue are ‘in common use’ as
that term was used in Heller.”); Friedman v. City of Highland Park, 577 U.S. 1039, 136 S.
Ct. 447, 449 (2015) (mem.) (Thomas, J., joined by Scalia, J., dissenting from the denial of
certiorari) (explaining that semiautomatic rifles like the AR-15 are commonly owned for
lawful purposes); see also Heller II, 670 F.3d at 1287 (Kavanaugh, J., dissenting) (“Semi-
automatic rifles have not traditionally been banned and are in common use today, and are
thus protected under Heller.”). Two of Bruen’s dissenters, and the replacement for the
Bruen dissent’s author, seem to agree. Cargill, 602 U.S. at 429–30 (Sotomayor, J., joined
by Kagan and Jackson, JJ., dissenting) (describing “semiautomatic rifles” as “commonly
available”). Plus, other branches of government have affirmed this conclusion. For
example, in 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives described
AR-15 style rifles as “one of the most popular firearms in the United States,” including for
“civilian use.” Definition of ‘Frame or Receiver’ and Identification of Firearms, 87 Fed.
Reg. 24652, 24652, 24655 (Apr. 26, 2022).
Thus, the evidence shows that millions of Americans have chosen to equip
themselves with semiautomatic rifles, like the AR-15, for various lawful purposes. So

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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.
III. The Majority
Faced with this mountain of evidence, what does the majority do? It ignores it
completely. In its place, the majority first constructs a “plain-text” inquiry that has no basis
in the Second Amendment’s plain text or the Supreme Court’s precedents. It then applies
this test in an exaggerated and hyperbolic fashion divorced from actual facts about the
firearms at issue. Finally, the majority offers a cursory account of the relevant history that
crumbles under the slightest scrutiny.
A. The majority concocts a threshold inquiry divorced from the Second
Amendment’s plain text.
The majority begins its analysis by reaffirming our decision in Kolbe. Yet rather
than taking isolated statements from Heller out of context, as we did in Kolbe, the majority
gallantly attempts to ground Kolbe’s holding in the Second Amendment’s plain text. The
Second Amendment’s plain text, the majority explains, must be read “in context” according
to its central (and seemingly lone) purpose: the right of individual self-defense. Majority
Op. at 14–16, 17. Drawing from the common law of self-defense, the majority concludes
that the right only protects weapons that are “most appropriate and typically used for self-
defense,” but not “excessively dangerous weapons ill-suited and disproportionate to such
a purpose” and “most suitable for criminal or military use.” Id. at 17–24. The majority
then applies this novel framework and concludes that the banned weapons are not even
protected by the Second Amendment’s plain text, because they are military-style, criminal

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weapons that are, in my good friend’s expert opinion, “ill-suited and disproportionate to
self-defense.” Id. at 42.
It is remarkable that the majority, for all its claimed fidelity to the Second
Amendment’s plain text, barely mentions that text at all, let alone Heller’s construction of
it. Heller already conducted a “textual analysis” of the Second Amendment based on its
“normal and ordinary meaning” and confirmed its interpretation against “the historical
background” of the right. 554 U.S. at 576–78, 592 (internal quotation marks omitted). It
found that the term “Arms” includes all “[w]eapons of offence” and therefore “extends,
prima facie, to all instruments that constitute bearable arms, even those that were not in
existence at the time of the founding.” Id. at 581–82 (internal quotation marks omitted).
And it concluded that the right codified by the Second Amendment “guarantee[s] the
individual right to possess and carry weapons in case of confrontation.” Id. at 592. Under
this definition, semiautomatic rifles obviously qualify as “Arms.” Before deftly ripping
the rug out from under the ordinary reader, even the majority seems to agree. See Majority
Op. at 14 (“At first blush, it may appear that these assault weapons fit comfortably within
the term ‘arms’ as used in the Second Amendment.”).
Instead of analyzing this text, however, the majority pivots to reading it in light of
its alleged sole purpose: the right of individual self-defense. It then contrives limits on the
constitutional text based on how the majority thinks this purpose is best fulfilled. But the
Supreme Court rejected this exact approach to constitutional interpretation in Giles v.
California, 554 U.S. 353 (2008). There, the Court warned against deriving exceptions to
constitutional rights based on judicial notions of the text’s underlying “policies,”

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“purposes,” or “values.” Id. at 374–75 (internal quotation marks omitted). It explained
that “[i]t is not the role of courts to extrapolate from the words of [a constitutional right] to
the values behind it, and then to enforce its guarantees only to the extent they serve (in the
courts’ views) those underlying values.” Id. at 375. Rather, judges must honor the
“specific means” chosen by the people to achieve those underlying purposes. Id. And in
the Second Amendment context, we derive those means using text and history—not by
speculating how we as judges would have conducted that original balance today.
Even if I were to ignore the Supreme Court’s warning and interpret the plain text in
this fashion, the majority still errs by adopting an overly cramped view of the Second
Amendment’s original purpose. The majority thinks that the Second Amendment exists
solely to protect individual self-defense. Tellingly, however, the majority cites no evidence
that the “ratifying public’s consciousness” ever read the Second Amendment in such a
cramped fashion. Majority Op. at 14. Nor does the majority cite anywhere in Heller,
Bruen, or Rahimi where the Court adopted such a limiting construction. That would have
been an odd reading, indeed, seeing as the ratifying population widely agreed that the
Second Amendment served larger purposes than individual self-defense, including the
defense of the body politic and the prevention of tyranny.
The idea that the Second Amendment serves purposes besides personal self-defense
is not some fantasy of a bygone era. Americans today rely on privately owned arms for
several lawful purposes beyond defending their individual persons. For example, many
states, including Florida, Georgia, and Texas, are being overrun by feral hogs that cause
massive agricultural damage and spread disease. Sam Chernikoff & Janet Loehrke,

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America’s Got a $2.5 Billion Wild Hog Problem. These States See the Worst of It, USA
Today (updated Nov. 27, 2023),
https://www.usatoday.com/story/news/nation/2023/11/21/which-states-have-the-worst-
wild-hog-problem/71658126007/ [https://perma.cc/8XJ9-MZSC]. Without adequate
means to quell this porcine invasion, the afflicted states rely heavily on private citizens to
hunt these animals and slow their spread.63 Id. Some states, meanwhile, still deploy
privately armed posses to aid law enforcement in maintaining public order and
apprehending wrongdoers.64 And when law and order break down and police fail to
provide aid, the duty for ensuring the safety of vulnerable communities falls on the people
who occupy them. See, e.g., Kyung Lah, The LA Riots Were a Rude Awakening for
Korean-Americans, CNN (updated Apr. 29, 2017),
https://www.cnn.com/2017/04/28/us/la-riots-korean-americans/index.html
[https://perma.cc/SP7C-HN9H]. All in all, though individual self-defense is an important
purpose of the Second Amendment right, the other historic purposes behind its enactment
remain relevant today.
Besides unduly narrowing the scope of the Second Amendment, the majority also
misapprehends the nature of historic “limitations” on the right. Majority Op. at 19.
Contrary to the majority’s claims, these limitations did not arise from abstract reflection on
63 Speaking from experience, many hog hunters deploy the exact weapons that
Maryland bans, including the AR-15.
64 For example, when serial killer Ted Bundy escaped from police custody in 1977,
Colorado law enforcement convened a posse, carrying private firearms, and deployed it to
successfully apprehend him. See Kopel, The Posse Comitatus, supra, at 812–13.

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the pros and cons of self-defense, nor from an idiosyncratic reading of the Second
Amendment’s plain text. Rather, these contours are “limits on the exercise of th[e] right”
drawn from our Nation’s historical tradition of firearms regulation—limits derived at
Bruen’s second step. Bruen, 597 U.S. at 21. Heller, Bruen, and Rahimi are clear on this
point. Heller identified the “presumptively lawful” limit on who can keep and bear arms
in “longstanding prohibitions on the possession of firearms by felons and the mentally ill.”
554 U.S. at 626, 627 n.26; see also Rahimi, 144 S. Ct. at 1898–1903 (analyzing a status-
based restriction at Bruen’s second step). It drew the limit on where arms can be borne
from longstanding “laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings.” Heller, 554 U.S. at 626; Bruen, 597 U.S. at 30. And
it derived the limit on what kinds of arms may be possessed from “the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.” Heller, 554 U.S. at 627
(internal quotation marks omitted); Bruen, 597 U.S. at 21. At no point did the Court ever
ground these qualifications in the Second Amendment’s plain text, let alone in vague
musings about the boundaries of individual self-defense. Reading the text in “context” is
no more than a Trojan Horse the majority uses to sneak its preferred values into the plain-
text inquiry.65
65 This is evident from the majority’s invocation of First Amendment doctrine. The
Supreme Court has indeed recognized that certain categories of speech are unprotected by
the First Amendment. See, e.g., Counterman v. Colorado, 600 U.S. 66, 73 (2024). But
such speech is unprotected because history and tradition tell us so, not because it falls
outside the plain meaning of “speech.” See United States v. Stephens, 559 U.S. 460, 468
(2010). That is why Bruen analogized the second step of its analysis to these historic First
Amendment limitations. 597 U.S. at 24–25. The majority even seems to acknowledge that
(Continued)

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When it comes to describing the substance of these limitations, the majority fares
no better. At no point did Heller instruct federal judges to decide whether a particular
weapon is “reasonably related or proportional to the end of self-defense.” Majority Op. at
21. That would be an odd mandate, indeed, as it would require federal judges to decide
which weapons are most suitable for a country of individuals with different needs and
abilities. Rather, the Supreme Court looked to the usage of the American people to
determine which weapons they deem most suitable for lawful purposes. Heller, 554 U.S.
at 629. And though the Court did mention several reasons why Americans prefer handguns
for self-defense, this was not dispositive to the Court’s analysis. “Whatever the reason,”
the Court explained, “handguns are the most popular weapon chosen by Americans for
self-defense in the home, and a complete prohibition of their use is invalid.” Id. It is thus
the customary practices of the American people—not the uninformed meditations of
federal judges—that determine which weapons are protected by the Second Amendment.
Equally perplexing is the majority’s construction (or deconstruction) of the category
of “dangerous and unusual” weapons. The majority is correct that weapons particularly
useful for criminal activity were historically considered “dangerous” within the meaning
of that phrase. But such dangerous weapons could be banned only if they were also
unusual. That is why Heller could say that laws banning weapons like short-barreled
shotguns and machine guns are constitutional. These weapons have long been linked to
historically unprotected speech can still “fall within a literal reading of the word ‘speech.’”
Majority Op. at 15. Yet when it comes to the right to keep and bear arms, it pretends that
its historical limitations are somehow rooted in the Second Amendment’s plain text.

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criminal activity, as the majority notes. See Majority Op. at 21–22; see also Heller, 554
U.S. at 623. And they also are “not typically possessed by law-abiding citizens for lawful
purposes,” and thus “highly unusual in society at large.” Heller, 554 U.S. at 625, 627.
Heller confirmed what history and tradition already established: A weapon must be both
dangerous and unusual in order to be banned.
Nor is there any support for the majority’s assertion that the term “dangerous,” at
least by the time of the Revolution, included within its ambit military weapons. As I have
explained, history and tradition establish the exact opposite. At the Founding, citizens
commonly possessed weapons useful for both self-defense and for militia service. Miller,
307 U.S. at 179; Heller, 554 U.S. at 624–25 (“In the colonial and revolutionary war era,
[small-arms] weapons used by militiamen and weapons used in defense of person and home
were one and the same.” (quoting State v. Kessler, 289 Ore. 359, 368 (1980)). And
throughout the nineteenth century, state courts and treatise writers widely and repeatedly
asserted that protected “Arms” included those commonly kept by citizens for public
defense. See, e.g., Andrews, 50 Tenn. at 179; Duke, 42 Tex. at 458; see also Heller, 554
U.S. at 618 (“[A] militia would be useless unless the citizens were enabled to exercise
themselves in the use of warlike weapons.” (quoting J. Pomeroy, An Introduction to the
Constitutional Law of the United States § 239, at 152–53 (1868))); id. at 619 (“Some
general knowledge of firearms is important to the public welfare; because it would be
impossible, in case of war, to organize promptly an efficient force of volunteers unless the
people had some familiarity with weapons of war.” (quoting B. Abbott, Judge and Jury:
A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880))). The

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idea that weapons useful for military purposes are “dangerous,” as that term was
historically understood, has no basis in our historical tradition.
Finally, the majority’s treatment of Heller’s common-use test is unclear and
perplexing. At various points, the majority seems to acknowledge that the Second
Amendment protects weapons in common use for lawful purposes. See Majority Op. at 20
(explaining that the Second Amendment protects “[a]rms typically used by average citizens
for self-defense”); id. at 23 (describing protected weapons as those “typically used for self-
defense”). And at one point, the majority seems to require Appellants to prove that each
individual banned firearm is in common use, see id. at 25–27, even though Heller
conducted this inquiry at a class-wide level, 66 see Heller, 554 U.S. at 628–29 (assessing
the common usage of “handguns” and contrasting them with “long guns”); see also Price,
slip op. at 70–73 (Richardson, J., dissenting). At other times, however, the majority seems
unenthusiastic about this inquiry, lambasting it as an “ill-conceived popularity test” that
leads to “absurd consequences.” Majority Op. at 39–40. And when it comes to AR-15s,
the majority refuses to consider their common usage at all, choosing instead to replace
Americans’ opinions of their utility with its own.
This flip-flopping is especially strange in light of this Court’s parallel holding in
United States v. Price, No. 22-4609, which also puts the common-use test at Bruen’s first
66 The majority’s qualms about conducting a facial analysis are a red herring.
Majority Op. at 24–25. Every semiautomatic rifle prohibited by Maryland is an “Arm”
under the plain text of the Second Amendment. So Maryland’s law is facially unlawful
unless Appellees prove that the banned weapons as a class are dangerous and unusual,
which, as I have already explained, they fail to do.

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step. While this case’s majority describes the common-use inquiry as ill-conceived and
absurd, the Price majority (composed of many of the same judges) describes it as “an
inquiry that courts are equipped to apply consistently.” Price, slip op. at 20. And it
articulates a common-use framework broadly similar to the one I developed above.67 Id.
at 19–20 (examining the degree of widespread usage and considering the purposes behind
that usage). It is odd that the same Court would malign an inquiry in one case that it praises
in a different case issued on the same day. This inconsistency is sure to perplex district
courts and litigants in future cases.
In the end, the majority’s plain-text inquiry is anything but that. It has no basis in
the text of the Second Amendment. It has zero support in the Amendment’s historical
background. And it misconstrues the Supreme Court’s binding precedent already
interpreting these two sources. For a decision purporting to faithfully apply Heller and
Bruen, today’s majority departs from their commands.
B. Even under the majority’s concocted test, semiautomatic rifles would be
protected by the Second Amendment, because they are useful and
appropriate for self-defense and are neither “military weapons” nor more
useful for criminal activity than handguns.
Even if the majority’s novel framework were correct, however, Maryland’s ban
would still be unconstitutional. If you’re going to manufacture a test that turns on a
weapon’s functionality and utility, you must look at actual evidence of its functions and
67 I say “broadly similar” because the Price majority believes we should hypothesize
about a weapon’s lawful uses, while I think we should examine the reasons shared by the
people for owning certain weapons. See Price, slip op. at 77–78 (Richardson, J.,
dissenting).

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uses, rather than speculate about both. And the facts show that semiautomatic rifles like
the AR-15 are useful and appropriate for self-defense. They are not “military-style”
weapons; they are civilian versions with meaningfully different functionalities. Not to
mention, they are used far less for criminal ends than other protected weapons like
handguns.
Before I begin, it’s important to establish the basics of individual self-defense.
Lawful self-defense is not and has never been a one-size-fits-all endeavor. The goal in
self-defense situations is stopping attackers in their tracks. Buford Boone Declaration at
J.A. 2176, Kolbe, 849 F.3d 114 (No. 14-1945). This means that a defender needs a weapon
accurate enough to strike the attacker, powerful enough to knock him down, and
maneuverable enough to get on target. Unfortunately, tradeoffs exist between these
variables. A more powerful weapon can generate greater recoil and muzzle climb, making
each shot less accurate. Maximizing accuracy, meanwhile, can reduce stopping power.
And a weapon’s size and style often affect not only maneuverability but also accuracy and
stopping power. Thus, there is no magic bullet when it comes to self-defense. Anyone
who desires a weapon to defend himself must weigh these variables and judge which
weapon best maximizes them for his particular circumstances.
As Heller observed, many Americans believe that handguns strike this balance best.
554 U.S. at 629. Indeed, handguns offer many features that are conducive to individual
self-defense in the home. Handguns are easier to store and more readily accessible in case
of emergency. Id. They cannot easily be knocked aside or taken by a would-be attacker.
Id. They require less strength to carry than your typical rifle. Id. And they can be wielded

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with one hand in case of injury or to call the police. Id. It is consequently no surprise that
“handguns are the most popular weapon chosen by Americans for self-defense in the
home.” Id.
But there are drawbacks to handguns, too, ones that meaningfully curtail their utility
for self-defense in the home. The most important of these is their inferior stopping power.
A bullet’s wounding power is based mainly on the kinetic energy it generates when it
strikes a target, which in turn depends on the combination of the bullet’s mass and its exit
velocity (⅟2 x M x V 2 , to be precise). E. Gregory Wallace, “Assault Weapon” Lethality,
88 Tenn. L. Rev. 1, 44 (2020). As handguns generally have significantly lower exit
velocity, the average handgun is less likely to halt an aggressor than a rifle. Boone
Declaration, supra, at J.A. 2131; Gary Roberts Declaration at J.A. 2098–99, Kolbe, 849
F.3d 114.
Inferior stopping power isn’t the only problem. Handguns are also less accurate
than most rifles. Unlike rifles, handguns lack a shoulder stock, so it is harder to hold them
steady and aim them accurately. Guy Rossi Declaration at J.A. 2131, Kolbe, 849 F.3d 114.
This also means that they absorb less recoil from the propulsion of the bullet and generate
more kick and muzzle climb. Id. The net combination of these features is that handguns,
though compact and easily maneuvered, are less accurate than rifles. Roberts Declaration,
supra, at J.A. 2097–98.
Given these limitations, many Americans choose other weapons to protect
themselves and their homes against unlawful aggressors. To them, the AR-15 strikes a
superior balance of force and accuracy. For one, the AR-15 is more powerful than a

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handgun; though it typically uses a smaller bullet than many handguns, it generates greater
exit velocity and thus imparts significantly more force upon striking its target. Wallace,
“Assault Weapon” Lethality, supra, at 44–45.68 Yet it is simultaneously more accurate
than a handgun, thanks to features like a shoulder stock for absorbing recoil. Roberts
Declaration, supra, at J.A. 2098. At the same time, the AR-15 can be more accurate than
many other rifles, too, since it shoots a smaller bullet and generates less recoil. Wallace,
“Assault Weapon” Lethality, supra, at 35, 45. Many Americans therefore believe that the
AR-15 thus strikes an optimal balance between stopping power and accuracy, making it,
for them, a superior instrument of lawful self-defense.69
68 The traditional AR-15 shoots a 5.56mm round. Some AR-15 rifles use a larger
barrel bore to shoot the heavier .300 Blackout, which provides a different set of tradeoffs
from the lighter 5.56mm round. But suffice to say, experts can debate the relative merits,
in a given set of circumstances, of rifles shooting 5.56mm or .300 Blackout rounds, as well
as compare those rifles with handguns firing .38 or .45 caliber rounds.
69 The majority, relying on Kolbe, claims that the AR-15’s increased stopping power
risks over-penetration and threatens innocent bystanders. Majority Op. at 36–37. In
reality, the opposite is true. Handgun rounds are more likely to over-penetrate structures
like walls than an AR-15’s 5.56mm rounds because the latter more often fragment or lose
stability as they pass through structures. Wallace, “Assault Weapon” Lethality, supra, at
37–38; see also Mass. Mun. Police Training Comm., Basic Firearms Instructor Course:
Patrol Rifle 3 (2007),
http://www.mlefiaa.org/files/MPTC_NEWS/Patrol_Rifle_Student_Manual_2010.pdf
[https://perma.cc/ZX3X-LQCQ] (“[T]he 5.56mm NATO (.233 Remington) will penetrate
fewer walls than service pistol rounds or 12 gauge slugs.”); Roberts Declaration, supra, at
J.A. 2101 (describing an FBI study concluding that AR-15 bullets “had no over-penetration
issues compared with the other service caliber handgun, shotgun, or rifle ammunition”).
And because handguns are less accurate than AR-15s, especially at longer range, they pose
a greater threat of stray fire to innocent bystanders. For these reasons, law enforcement
has long found the AR-15 to be an effective weapon for urban building raids and hostage
situations. Boone Declaration, supra, at J.A. 2168–69.

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The AR-15’s perceived superiority is aided by many features that make it wieldable
for people of all ages and sizes. The AR’s pistol grip, for example, controls recoil and
enhances accuracy. David B. Kopel, Rational Basis Analysis of “Assault Weapon”
Prohibition, 20 J. Contemp. L. 381, 396 (1994). Likewise, the telescoping stock allows
users to adjust the weapon’s length based on their size and enhances maneuverability in
tight spaces. Boone Declaration, supra, at J.A. 2182. The flash suppressor, meanwhile,
prevents blindness in low-light conditions (such as a nighttime home invasion) and protects
the barrel from dirt and other obstructions. Jim Supica Declaration at J.A. 2264, Kolbe,
849 F.3d 114. And the barrel shroud guards the shooter’s hand from the hot barrel and
protects the barrel from damage. E. Gregory Wallace, “Assault Weapon” Myths, 43 S. Ill.
U. L.J. 193, 231 (2018). This combination of features makes the AR-15, for many, a useful
tool for self-defense that is in many ways superior to a typical handgun.70
Thus, the mere fact that the AR-15 lacks some advantages of the handgun does not
make it unsuitable for self-defense. The majority seems to think that Heller created a one-
size-fits-all list of factors for determining whether a gun is proportional and appropriate for
self-defense. But the Court did no such thing. Rather, it simply identified the reasons why
70 The majority claims that the large-capacity magazines compatible with the AR-
15 are unnecessary for self-defense because homeowners typically fire a low volume of
shots to incapacitate intruders. Majority Op. at 37. But this implies that homeowners are
not entitled to prepare for the worst just in case they need more bullets than are normally
necessary. The majority’s complaint also “applies to all semiautomatic weapons, including
constitutionally-protected handguns, [since] any firearm that can hold a magazine can
theoretically hold one of any size.” Kolbe, 849 F.3d at 158 (Traxler, J., dissenting); Roberts
Declaration, supra, at J.A. 2096.

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many Americans choose handguns for self-defense while leaving open the possibility that
many other Americans choose different weapons for this purpose. See Heller, 554 U.S. at
629. And the evidence shows that the AR-15 is abundantly useful and appropriate for
individual self-defense.
The majority’s treatment of the AR-15’s utility for lawful self-defense is bad
enough. Yet just as bad is the majority’s claim that this weapon is “better suited” for
military and criminal purposes. See Majority Op. at 21, 27–36. Rather than engaging with
the actual facts, the majority trades in tropes and hyperbole to portray the AR-15 as a
menacing weapon with no other utility than the slaughtering of enemy combatants and
innocents. Not only is this picture untrue, but it also demonizes the millions of Americans
who lawfully keep these weapons to defend themselves and their communities.71
The majority begins by detailing the AR-15’s military origins. Majority Op. at 27–
30. But this is nothing unique to the AR-15; most popular civilian firearms were first
designed for military use. Wallace, “Assault Weapon” Myths, supra, at 200; Gary Kleck,
Point Blank: Guns and Violence in America 70 (1991) (“Most firearms, no matter what
their current uses, derive directly or indirectly from firearms originally designed for the
military.”). The Glock 17—the most popular handgun in the world—was designed for the
Austrian military and police. The Remington Model 30 bolt-action sporting rifle is a
71 What must the majority think of the millions of Americans who own these
weapons? Either they must be fools, completely ignorant of what is required to defend
themselves and their homes, or they are secret mass murderers. Or perhaps there’s a third
option. Maybe, just maybe, these law-abiding citizens understand something that the
majority doesn’t.

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derivative of the M1917 Enfield rifle deployed by American troops in the First World War.
The Winchester Model 1873, which was popular with cowboys, soldiers, and law
enforcement alike because of its reliability and accuracy, evolved from repeating rifles first
used in the Civil War. And the Browning 1911, today widely in civilian use, was first
designed to provide greater stopping power for members of the United States military. Far
from inhabiting separate spheres, civilian and military uses of particular firearms often go
hand in hand.72
This fact should surprise no one. Firearms are supposed to be effective—that is why
civilians use them for self-defense. The very functions that make a weapon useful for
military purposes—lethality, accuracy, durability, and maneuverability, to name a few—
are functions that make a weapon useful for lawful self-defense, too. So in choosing a
firearm for that purpose, civilians naturally gravitate toward weapons that have already
proved capable of repelling attackers.
72 For information about the military origins of these popular civilian firearms, see
How the Glock Became America’s Weapon of Choice, NPR (Jan. 24, 2012),
https://www.npr.org/2012/01/24/145640473/how-the-glock-became-americas-weapon-
of-choice [https://perma.cc/U292-5ZJG]; John F. Lacy, Remington Model 30 Bolt Action,
High Power Rifles, Remington Soc’y of Am.,
https://www.remingtonsociety.org/remington-model-30-bolt-action-high-power-rifles/
[https://perma.cc/S2NL-BBMA]; The Rifle That Won the West: A History of the
Winchester Model 1873, Field & Stream (Jan. 5, 2021),
https://www.fieldandstream.com/story/guns/winchester-model-1873-gun-that-won-the-
west/ [https://perma.cc/JAS5-6RB7]; The History of the 1911 Pistol, Browning (Jan. 24,
2011), https://www.browning.com/news/articles/historical/history-1911-pistol.html
[https://perma.cc/5F7P-YU5P].

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Moreover, the majority’s argument fails for the simple fact that the AR-15 is not a
military weapon. The defining feature of a military rifle is its “selective-fire” capability,
which allows the user to toggle between semiautomatic, burst, and fully automatic modes
of fire. Rossi Declaration, supra, at J.A. 2189. Weapons like the M-16 and the M-4, for
instance, are selective-fire rifles. But the AR-15 is not a selective-fire rifle. Rather, it can
only fire semiautomatically, which is why the Supreme Court once described it as “the
civilian version of the military’s M-16 rifle.” Staples, 511 U.S. at 603 (emphasis added).
The ability to fire in automatic or burst mode is thus the defining feature of a military rifle,
and this is the feature that the AR-15 lacks. 73
The majority dismisses this distinction as irrelevant because it believes that there
are supposedly few, if any, tactical advantages to having a selective-fire rifle. Majority
Op. at 31. Its primary evidence? A single tweet from a former Navy Seal, who stated that
firing in fully automatic mode is “not always necessary.” Robert J. O’Neill (@mchooyah),
Twitter (Oct. 3, 2017, 5:04 PM), https://x.com/mchooyah/status/915321621908508673
[https://perma.cc/7JXA-YK97]. But if the majority is correct, then why is there not one
military in the world that uses purely semiautomatic rifles? Nelson Lund, Fourth Circuit
Shootout: “Assault Weapons” and the Second Amendment, 24 Geo. Mason L. Rev. 1233,
1238 (2017); Wallace, “Assault Weapon” Myths, supra, at 205. And why does the
National Firearms Act heavily regulate automatic weapons, but not semiautomatic rifles?
73 The majority notes that the AR-15’s rate of fire can be increased with devices like
bump stocks, trigger cranks, and binary triggers. Majority Op. at 31–32. But the solution
to this problem is to regulate the modifications, not the weapons themselves. Cf. Cargill,
602 U.S. at 429 (Alito, J., concurring).

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The obvious answer is that there are significant tactical advantages to having a weapon
that can shoot in automatic mode, even if these features are not deployed regularly. The
very same U.S. Army Field Manual cited by the majority later explains that “[i]n some
combat situations, the use of automatic or burst fire can improve survivability and enhance
mission accomplishment.” U.S. Army FM 3-22.9, at 7-13 (Aug. 12, 2008). These
situations include clearing buildings, launching final assaults, engaging in close-quarters
combat, gaining initial firing superiority, laying down suppressive fire, and warding off
surprise enemy attacks. See id. at 7-13, 7-16, 7-19. Only selective-fire rifles can perform
these important functions. It is therefore no surprise that the military has shunned the AR-
15 for selective-fire rifles like the M-16 and M-4. 74
The majority then touts the AR-15’s criminal uses, portraying it as a destructive
device which is only useful for slaughtering innocents and police officers. Majority Op. at
32–36. Not only are these claims exaggerated, but they also can and have been made about
handguns. Yet when faced with these same arguments, the Court in Heller concluded that
public-safety concerns cannot justify disarming millions of law-abiding citizens of the
handguns they commonly own for lawful purposes. See 554 U.S. at 636. The millions of
Americans who similarly own semiautomatic rifles are entitled to the same treatment.
74 The irony of the majority’s position is that the United States military is now
phasing out the M-16 and M-4 rifles for some infantry units because their smaller rounds
make them less lethal against improved body armor technology. See Kyle Mizokami, The
Army’s Next-Gen Infantry Weapons Will Be More Lethal and More Accurate, Popular
Mechs. (Apr. 21, 2022); Todd South, Army Chooses Sig Sauer to Build Its Next Generation
Squad Weapon, Army Times (Apr. 19, 2022).

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If proportional use in crime is the correct metric, then handguns pose a greater threat
to public safety than semiautomatic rifles. Compared to handguns, rifles of all kinds are
used in far fewer crimes. For example, the FBI estimates that there were about 152,969
homicides committed between 2013 and 2022. Expanded Homicide Data, Fed. Bureau of
Investigation Crime Data Explorer (last visited June 21, 2024). Of these, approximately
3,560 (just over 2%) were committed with rifles (of any kind), while roughly 67,431 (about
44%) were committed with handguns. Id. More broadly, a 2018 study suggests that
“assault weapons” account for only 2–9% of gun crimes in general. See Christopher S.
Koper et al., Criminal Use of Assault Weapons and High-Capacity Semiautomatic
Firearms: An Updated Examination of Local and National Sources, 95 J. Urb. Health 313,
318 (2018). And a 2016 survey by the Bureau of Justice Statistics found that only 1.5% of
state and federal prisoners reported possessing a rifle during the offense for which they
were incarcerated, and only 0.8% reported actually showing, pointing, or discharging it.
Mariel Alper & Lauren Glaze, Source and Use of Firearms Involved in Crimes: Survey of
Prison Inmates, 2016, at 5 (Jan. 2019) (U.S. Department of Justice, Bureau of Justice
Statistics).. At the macro level, therefore, semiautomatic rifles seem to be used in only a
small proportion of crimes compared to handguns.
Perhaps because it recognizes these overall trends, the majority focuses instead on
statistically narrower categories of criminal activity. First, the majority claims that assault
rifles are “uniquely dangerous to law enforcement.” Majority Op. at 34 (quoting Capen v.
Campbell, No. 22-11431, 2023 WL 8851005, at *13 (D. Mass. Dec. 31, 2023)). Yet once
again, the majority overstates the facts and elides nuance. It is true that the banned

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semiautomatic rifles have a higher firepower that allows perpetrators to engage officers at
a long distance and potentially penetrate body armor. But this is true of basically all rifles,
not simply the banned ones. Wallace, “Assault Weapon” Lethality, supra, at 38.
Moreover, in claiming that “assault weapons” are used to kill between 13% to 20% of all
officers killed in the line of duty, the majority combines two studies conducted over
different time periods. Majority Op. at 35. One study, conducted over twenty years ago,
found that “assault weapons” were used in at least 20% of officer killings. See Nat’l Ass’n
for Gun Rights v. Lamont, 685 F. Supp. 3d 63, 99 (D. Conn. 2023). The other study found
that, between 2009 and 2013, “assault weapons” were used in only 13.2% of police
murders. Id. at 99. But whichever number is more accurate, the majority never mentions
that the murder of police officers is statistically rare. For example, the second study found
that 219 firearms were used to kill police officers between 2009 and 2013. Koper et al.,
supra, at 318. At a rate of 13%, this means that only around 29 of those 219 weapons were
“assault weapons.” I do not want to be misunderstood. Any death of our first responders
is tragic. But our natural outrage over such deaths should not cause us to overlook actual
facts. Twenty-nine is an extremely small number of murders when compared to the overall
number of homicides or the overall number of assault rifles owned in America.75
75 For a more updated count, the FBI estimates that sixty law-enforcement officers
were feloniously killed in the line of duty in 2022. Fed. Bureau of Investigation, Law
Enforcement Officers Killed and Assaulted 1 (Spring 2023). Of those sixty, forty-nine
were killed with firearms. Id. at 3. And of those forty-nine, only six were confirmed to
have been killed with rifles of any kind. Id.

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Second, the majority invokes the use of AR-15s and similar rifles in several recent
mass public shootings.76 Majority Op. at 32–34. Like shootings of police officers, mass
public shootings are terribly tragic events, but they are also statistically far rarer than other
shootings. The Violence Project estimates that between 1966 and 2023, there have been
193 mass public shootings, which have resulted in 1,391 deaths. The Violence Project,
76 When discussing this topic, it’s important use the right terminology. Scholars
who study this area typically distinguish between “mass shootings” and “mass public
shootings.” The Congressional Research Service defines a “mass shooting” 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 in close
geographical proximity.” William J. Crouse & Daniel J. Richardson, Mass Murder with
Firearms: Incidents and Victims, 1999–2013, at 10 (2015),
https://sgp.fas.org/crs/misc/R44126.pdf [https://perma.cc/H2NZ-TJ3V]. It meanwhile
defines a “public mass shooting” as “a multiple homicide incident in which four or more
victims are murdered with firearms—not including the offender(s)—within one event, and
at least some of the murders occurred in a public location or locations in close geographical
proximity (e.g., a workplace, school, restaurant, or other public settings), and the murders
are not attributable to any other underlying criminal activity or commonplace circumstance
(armed robbery, criminal competition, insurance fraud, argument, or romantic triangle).”
Id.
These terminological differences matter for analyzing the data. Studies generally
show that “assault weapons” (predominately rifles) are used in just over 25% of mass
public shootings. See Crouse & Richardson, supra, at 16 (27.5%); Key Findings, The
Violence Project (last visited June 4, 2024), https://www.theviolenceproject.org/key-
findings/ [https://perma.cc/FYY6-HVTM] (28%). By contrast, studies typically show that
assault weapons are used in a smaller proportion of mass shootings. See Crouse &
Richardson, supra, at 29 (9.78%); Koper et al., supra, at 317 (estimating that assault
weapons are used in somewhere between 10% and 36% of mass shootings but clarifying
that the latter number is likely attenuated). So when the majority claims that AR-style
rifles are used in 25% of “mass shootings,” it presumably is referring to narrower category
of mass public shootings, not the broader category of all mass shootings. See Majority Op.
at 32–33.

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supra.77 To put that in perspective, mass public shootings accounted for fewer than 1% of
all firearm-related homicides in the United States over this period. Sharon Shahid &
Megan Duzor, History of Mass Shooters, Voice of Am. (last updated June 1, 2021),
https://projects.voanews.com/mass-shootings/ [https://perma.cc/DRJ8-92Y5]; see also
Cong. Rsch. Serv., Public Mass Shootings, supra, at 1 (“[P]ublic mass shootings account
for few of the murders related to firearms that occur annually in the United States.”). Plus,
the majority glosses over the utility of handguns for mass public shooters. If assault
weapons are only used in 25% of mass public shootings, this means that other weapons
like handguns are used in almost 75% of those shootings. And some studies indicate that
the use of handguns in these situations can actually pose unique risks not associated with
semiautomatic rifles.78
In no sense do I intend to minimize the value of the lives lost in these shootings.
Far from it. But it is necessary to place the majority’s claims in context. There is little
basis for claiming that semiautomatic rifles are more useful for or more used in criminal
77 See also Cong. Rsch. Serv., Public Mass Shootings in the United States: Selected
Implications for Federal Public Health and Safety Policy 6 (2013), (estimating that mass
public shootings accounted for 547 deaths between 1983 and 2012); Crouse & Richardson,
supra, at 15 (estimating that mass public shootings accounted for 446 deaths between 1999
and 2013).
78 For example, a 2018 study of wounding patterns found that a victim’s probability
of death is higher in shootings involving a handgun than in shootings involving a rifle.
Babak Sarani et al., Wounding Patterns Based on Firearm Type in Civilian Public Mass
Shootings in the United States, 228 J. Am. Coll. Surgeons 228, 232 (2019) (basing this
conclusion on the finding that handgun victims are four times more likely to have three or
more bullet wounds than rifle victims, possibly because the greater kinetic energy from a
rifle bullet is more likely to knock the victim down before they can be hit by a successive
bullet).

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activity than other weapons. The data shows the exact opposite: Handguns are by far a
greater existential threat to the peace and safety of our communities. Yet rather than
assessing these facts, the majority spends pages upon pages describing mass shootings in
graphic detail. This is not judicial reasoning; it is fearmongering designed to invoke the
reader’s passions and mask lack of substance.
It is noteworthy that the majority’s arguments against semiautomatic rifles are
nothing new. In Heller, the District of Columbia argued that it prohibited handgun
possession because these were “particularly dangerous types of weapons.” Brief for
Petitioners at 45, Heller, 554 U.S. 570 (No. 07-290); see also Oral Argument at 18:53–
19:08, Heller, 554 U.S. 570 (“especially dangerous”); id. at 37:05–17 (“inherently
dangerous weapons”). It presented statistics showing that handguns “are
disproportionately linked to violent and deadly crime,” including murder, robbery, and
assault, and that “[a] crime committed with a pistol is 7 times more likely to be lethal than
a crime committed with any other weapon.” Brief for Petitioners at 4, Heller, 554 U.S.
570 (internal quotation marks omitted). And it asserted that handguns are uniquely
dangerous to law-enforcement officers, since they account for the vast majority of law-
enforcement murders and “pose particular dangers” to officers performing everyday duties.
Id. at 4, 51.
The dissenting Justices in Heller, McDonald, and Bruen echoed these same claims.
In Heller, Justice Breyer argued that “[h]andguns are involved in a majority of firearm
deaths and injuries in the United States,” 554 U.S. at 697 (Breyer, J., dissenting), and that
they “appear to be a very popular weapon among criminals,” id. at 698. Later, in

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McDonald, both Justice Stevens and Justice Breyer extolled the unique dangers posed by
handgun violence in urban environments and opposed incorporating the Second
Amendment against the states. 561 U.S. at 902, 907 (Stevens, J., dissenting); id. at 924
(Breyer, J., dissenting). And in Bruen, Justice Breyer lamented rising mass shootings, 597
U.S. at 85–86 (Breyer, J., dissenting), noted the exceptional danger firearms pose to police
officers, id. at 88–89, and described handguns as “the most popular weapon chosen by
perpetrators of violent crimes,” id. at 90.
Yet faced with these constant invocations of the unique dangers of handguns, the
Supreme Court refused to cast aside the constitutional liberties of millions to prevent the
unlawful actions of the few. In McDonald, for instance, the Court emphasized that the
Second Amendment “is not the only constitutional right that has controversial public safety
implications” and declined to withhold its protections from state citizens simply because
“the right at issue has disputed public safety implications.” 561 U.S. at 783. Similarly, in
Bruen, the Court underscored that “[t]he constitutional right to bear arms in public for self-
defense is not ‘a second-class right, subject to an entirely different body of rules than the
other Bill of Rights guarantees.’” 597 U.S. at 70 (quoting McDonald, 561 U.S. at 780).
Despite these repeated admonitions, today’s majority chooses to balance away
Second Amendment freedoms because it judges their value to be outweighed by their
public safety implications. And make no mistake about it, the majority is engaging today
in precisely the kind of interest balancing that Heller, McDonald, and Bruen rejected. The
majority’s new framework allows judges to decide just how important they think certain
firearms are for self-defense and then to weigh this finding against the threat they believe

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those arms pose to the public at large. Indeed, the entire concept of “proportionality” is
merely a license for unelected judges to usurp the public’s role in determining whether a
particular weapon is sufficiently tailored to the important interest of self-defense. Sound
familiar? Whereas the Supreme Court has instructed that constitutional claims live or die
based on the original scope of the Second Amendment, the majority places them at the feet
of federal judges who are ill-suited to deciding what is “most” suitable and proportionate
to defend one’s person and one’s home.
C. History and tradition do not support the banning of dangerous arms that
are in common use for lawful purposes.
Finally, I turn to the majority’s historical arguments. The majority claims to identify
a historical tradition of prohibiting “excessively dangerous weapons,” whether or not those
weapons are in common use for lawful purposes. Majority Op. at 43. Yet the majority
simply retells the same death-and-destruction story it told at the plain-text stage, waxing
poetic about the dangers of gun violence and the blood of children. This is a far cry from
Bruen’s careful consideration of our Nation’s history and tradition.
Start with the majority’s evidence (or lack thereof) from the Founding era. The
majority does not identify any laws from this period limiting the possession of especially
dangerous weapons. See id. at 48 (“Pre-Revolution, then, there was little regulation of
firearms in America . . . .”). Nor does it mention the English and early American
restrictions on the carry of “dangerous and unusual” weapons. This is probably because
these regulations cut against the majority’s stated principle. The common-law offense
codified by the Statute of Northampton only applied to weapons that were both dangerous

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and unusual, which is why commentators repeatedly explained that it did not prohibit the
carry of “common” weapons. See, e.g., Hawkins, supra, at 136; Barlow, supra, at 12; 1
Russell, supra, at 271–72. The fact that a weapon was especially harmful was necessary
but not sufficient to limit its possession or carry.
The majority’s only Founding-era evidence is several gunpowder regulations from
the early Republic. Contrary to the majority’s claims, these laws did not limit the quantity
of gunpowder a person could possess, nor did they aim to mitigate “the accumulation of
firepower disproportionate to the lawful purpose of individual self-defense.” Majority Op.
at 48–49. Rather, they just restricted the amount of powder a person could store in any
single location and required excess powder to be kept in the public magazine.79 And their
stated purpose was to prevent the outbreak of fires, not to prevent people from amassing
enough firepower to commit acts of violence. See Heller, 554 U.S. at 632; Saul Cornell &
Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73
79 Act of Dec. 6, 1783, ch. MLIX, § 1, 11 Pa. Stat. 209, 209–10 (prohibiting anyone
within two miles of the city from “keep[ing] in any house, shop or cellar, store or place
whatsoever, . . . other than in the said public magazines, any more or greater quantity at
any one time than thirty pounds weight of gun-powder” (emphasis added)); Act of Apr. 18,
1784, ch. 28, 1784 N.Y. Laws 627, 627 (prohibiting any person from “hav[ing] or
keep[ing] any quantity of gun powder exceeding twenty-eight pounds weight, in any one
place, less than one mile to the northward of the city hall of the said city, except in the
public magazine” (emphasis added)); Act of Feb. 28, 1786, § 1, 1786 N.H. Laws 383, 383–
84 (ten pounds); An Act Relative to Keeping Gun-Powder in the Town of Providence,
1798–1813 R.I. Pub. Laws 85, § 2 (twenty-eight pounds); Act of June 19, 1801, § 2, 1801
Mass. Acts 507, 508 (twenty-five pounds); Act of Dec. 27, 1803, § 3, 1806 Ky. Acts 121,
122 (“any quantity of gun powder which might in case of fire be dangerous”). The majority
also cites an 1811 New Jersey statute that prohibited manufacturing gunpowder or setting
up a powder magazine near a town. See Act of Feb. 7, 1811, §§ 1–2, 1811 N.J. Laws 300.
But that too is merely a regulation regarding location, not an outright ban on possession.

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Fordham L. Rev. 487, 510–12 (2004). For these reasons, the Court in Heller rejected these
exact laws when offered to justify the District’s handgun ban because they did “not
remotely burden the right of self-defense as much as an absolute ban on handguns.” 554
U.S. at 632. Historic gunpowder regulations therefore offer no support for a tradition of
prohibiting the possession of especially dangerous, but commonly held, weapons.
The majority next invokes the many nineteenth-century restrictions on the
possession and carry of deadly weapons like pistols and Bowie knives. Once again, the
majority never considers why these laws were consistent with the Second Amendment.
States certainly enacted these laws because they wanted to limit possession or carry of
weapons commonly used by criminals. But to restate yet again, they were considered
constitutional only insofar as they applied to weapons that were both dangerous and
unusual. See, e.g., Smith, 11 La. Ann. at 633; Fife, 31 Ark. at 461. By contrast, courts
repeatedly explained that these laws were unconstitutional insofar as they prohibited the
keeping or carrying of “such arms as are commonly kept, according to the customs of the
people, and are appropriate for open and manly use in self-defense, as well as such as are
proper for the defense of the State.” Duke, 42 Tex. at 458; see also Andrews, 50 Tenn. at
179.
The majority tries to invoke several of these decisions to support its position, yet it
selectively quotes them in a way that obscures their full reasoning. Aymette did not simply
hold that “[t]he Legislature . . . ha[s] a right to prohibit the wearing or keeping weapons
dangerous to the peace and safety of the citizens.” Majority Op. at 55 (quoting Aymette,
21 Tenn. at 159). Rather, the full quotation reads: “The legislature . . . ha[s] a right to

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prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens,
and which are not usual in civilized warfare, and would not contribute to the common
defence.” Aymette, 21 Tenn. at 159 (emphasis added). In other words, Aymette adopted
the longstanding distinction between dangerous and unusual weapons and common
weapons, and it upheld Tennessee’s statute after determining that the regulated weapons
fell into the former category. 80 Id. at 158 (describing the regulated weapons as “usually
employed in private broils,” “efficient only in the hands of the robber and the assassin,”
“useless in war,” and incapable of being “employed advantageously in the common
defence of the citizens”).
The majority then correctly notes that the Texas Supreme Court in Cockrum v. State
upheld a penalty enhancement for manslaughters committed with Bowie knives because
such arms were “an exceeding[ly] destructive weapon” and “the most deadly of all
weapons.” Majority Op. at 55–56 (quoting Cockrum, 24 Tex. at 402–03). But in that same
opinion, the court clarified that, because it judged that the Bowie knife was “in common
use,” “[t]he right to carry a bowie-knife for lawful defense [was] secured” and the
80 The majority also cites Haynes v. Tennessee, 24 Tenn. 120 (1844). But Haynes
was about whether a “Mexican pirate knife” fell within the “spirit” of the statutory
prohibition, not whether the statute was constitutional. Id. at 122–23. Every Tennessee
case that considered the constitutional question found that the legislature could prohibit the
keeping or carrying of dangerous and unusual weapons but that it could not prohibit the
keeping or carrying of weapons common for lawful purposes. See Aymette, at 159;
Andrews, 50 Tenn. at 179–80; Wilburn, 66 Tenn. at 59; Burgoyne, 75 Tenn. at 176.

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legislature could not penalize its carry so as to “deter the citizen from its lawful exercise.” 81
Cockrum, 24 Tex. at 402–403. The court then upheld the conviction only because the
legislature had merely punished the use of a Bowie knife to kill someone and had not
prohibited carrying Bowie knives altogether. Id. Thus, neither Aymette nor Cockrum stand
for the idea that the government may ban any weapon so long as it is exceedingly
dangerous. Rather, both establish that weapons common for lawful purposes, even
especially deadly ones, cannot be prohibited.
Finally, the majority relies on twentieth-century regulations on automatic and
semiautomatic rifles. 82 But as the majority rightly notes, this evidence is probative only if
it is consistent with the tradition that came before it. See Bruen, 597 U.S. at 56 n.28. The
mere fact that semiautomatic and automatic rifles were regulated during this time cannot
alone establish that Maryland’s law is constitutional. We must judge the constitutionality
of these bans in light of the longstanding tradition allowing the outlawing of dangerous and
unusual weapons.
81 The Texas Supreme Court later held in English that the Second Amendment did
not protect the keeping or bearing of Bowie knives. 35 Tex. at 475–77. But this was not
based on disagreement with the underlying principle espoused in Cockrum. Rather, the
court determined that Bowie knives were unprotected because they were only “employed
in quarrels and broils, and fights between maddened individuals” and were not commonly
used for lawful purposes. See id. It was thus disagreement over the application of the
principle, and not with the principle itself, that caused their divergent treatment of Bowie
knives.
82 No one here is arguing that explosives like dynamites are protected by the Second
Amendment. But see Majority Op. at 56, 58–59. But were such a challenge to arise, a
court would have to consider whether such instruments are bearable “Arms” under the
Second Amendment’s plain text and whether they are dangerous and unusual.

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Some of these regulations may pass constitutional muster. Heller suggested that
sawed-off shotguns and machine guns are unprotected by the Second Amendment because
they are “commonly used by criminals,” 554 U.S. at 623 (quoting Brief for United States
at 18–21, Miller, 307 U.S. 174), and are “not typically possessed by law-abiding citizens
for lawful purposes,” id. at 625; see id. at 627 (explaining that these weapons “are highly
unusual in society at large”); see also Miller, 307 U.S. at 178. So Heller indicates that laws
like the National Firearms Act fit within the historical tradition of prohibiting dangerous
and unusual weapons.
But there is no similar constitutional case to support restrictions on semiautomatic
firearms. Relatively speaking, semiautomatic rifles are less useful for crime than short-
barreled shotguns, automatic rifles, or even handguns. More importantly, they are
commonly possessed by millions of law-abiding American citizens for many different
lawful purposes. As a result, there is no basis for banning these kinds of weapons. The
majority’s evidence to the contrary is simply nonexistent.
* * *
In Heller, the Supreme Court held that the Second Amendment prohibits the
government from banning firearms that are commonly possessed today by law-abiding
citizens for lawful purposes. 554 U.S. at 628–30. Soon after, the citizens of Maryland
asked us to vindicate their right to own a type of firearms routinely chosen for individual
self-defense and other lawful purposes. But rather than applying Heller’s clear mandate,
we balked and created a “heretofore unknown test” based on stray dicta, taken out of
context, from the Court’s opinion. Kolbe, 849 F.3d at 155 (Traxler, J., dissenting) (internal

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quotation marks omitted). Then, adding insult to injury, we held that, even if they did have
a right to own such weapons, that right was defeasible because of broader societal problems
for which they were not responsible.
Eventually, the Supreme Court intervened and corrected course. Bruen reaffirmed
that the Second Amendment does not license federal judges to balance away precious
liberties for the sake of broader societal interests. 597 U.S. at 22. And it reiterated that
when it comes to “defining the character of the right,” “suggesting the outer limits of the
right,” “or assessing the constitutionality of a particular regulation,” courts must rely on
text and history. Id.
Once again, Maryland citizens ask us to protect their right to keep and bear arms,
secured to them by the Second Amendment. Yet once again, our Court rejects their claim,
this time substituting one previously unknown test for another. Now, to trigger Second
Amendment scrutiny at all, a litigant must first prove that the precise model of firearm he
seeks to own (and only that model) is in common use for personal self-defense (and only
personal self-defense). He then must convince federal judges that his preferred firearm is
more useful for self-defense than it is for criminal or military purposes (whatever that
means). But even if he somehow makes this showing, all the government has to do is
gesture toward the weapon’s dangerous capabilities and argue that the weapon is just too
good at being a weapon. As soon as it does, our Court will bend his right like a willow
branch to accommodate societal interests it deems more important.
This is not how constitutional rights are supposed to work. I, like the majority,
revere the authority of the people to govern themselves. But in our system, the ultimate

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expression of “We the People” is the Constitution of the United States. And the act of
enforcing it over contrary legislation implies no superiority of judicial over legislative
power. Rather, as Hamilton once explained, “[i]t only supposes that the power of the
people is superior to both; and that where the will of the legislature declared in its statutes,
stands in opposition to that of the people declared in the constitution, the judges ought to
be governed by the fundamental laws.” The Federalist No. 78, at 525 (Alexander
Hamilton) (Jacob E. Cooke ed., 1961). “This is of the very essence of judicial duty.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).
Our duty to enforce the Constitution does not evaporate when the right at issue has
“controversial public safety implications.” McDonald, 561 U.S. at 783. The Second
Amendment was adopted to ensure that the people are equipped to protect themselves
against both public and private violence. It is a weighty responsibility, undoubtedly, and
one that other nations deem unworthy of entrusting to their citizens. Yet our system does
so all the same. The Founders learned from experience that the people are most vulnerable
to abuse when they lack the means to defend themselves, so they guaranteed that the people
would always have adequate means to safeguard their liberties. Today, the majority
disregards the Founders’ wisdom and replaces it with its own. “But before popping the
champagne on the [Fourth Circuit’s] latest edict, maybe someone should wonder whether
we purchase today’s victory at the cost of tomorrow’s freedom.” J. Harvie Wilkinson III,
Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 257 (2009).
I respectfully dissent.

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