JACKSON GILLESPIE—Gino Recchia, a firearms dealer, filed suit in Massachusetts federal court on October 4th, alleging that a state law that went into effect on October 2nd, which bans the possession and sale of assault-style firearms and large capacity feeding devices (LCMs), violates his Second Amendment right to bear arms. Recchia’s complaint is just one of many to follow the Supreme Court’s decision in Bruen two years ago. One recurring question in these complaints is whether categorical bans on assault weapons are constitutional under the Second Amendment.
The Supreme Court outlined a framework in Bruen for addressing Second Amendment challenges, but as Circuit Courts begin applying it, it is apparent that Bruen provides little actual guidance. Analyzing the majority and dissenting opinions in three recent Circuit Court decisions aptly illustrates the challenges that the framework presents.
Bruen held that if the regulated conduct is covered by the plain text of the Second Amendment, it is presumptively protected. But answering this relatively straightforward question is no easy task.
The Fourth Circuit in Bianchi and the Seventh Circuit in Bevis interpreted Bruen as excluding “dangerous and unusual weapons” from Second Amendment protection. The Bevis majorityreasoned that assault weapons are dangerous and unusual military-style weaponry outside the scope of the right to bear arms. Similarly, the Bianchi majority concluded that assault weapons, ill-suited for the average citizen’s self-defense needs but particularly useful for criminal, terrorist, and military purposes, are not protected by the Second Amendment. In contrast, Judge Brennan’s dissent in Bevis argued that dangerous and unusual weapons are “arms” covered by the plain text of the Second Amendment and presumptively protected. This interpretation profoundly changes the rest of the Bruen analysis in that it determines whether the government bears the burden to show that the challenged law has a historical analogue demonstrating its constitutionality.
Even the “dangerousness” evaluation is disputed. Judge Brennan emphasized the mechanical similarities between handguns and AR-15s, asserting that handguns are no less dangerous. However, the Bianchi and Bevis majorities focused on the similarities between assault weapons and military firearms in terms of their killing power, concluding that they are dangerous weapons uncovered by the Second Amendment. The Bianchi dissent maintained that for a weapon to be considered both dangerous and unusual, it must not be commonly possessed for lawful purposes and must be especially useful for criminal activity. Ultimately, courts are divided on how Bruen directs them to approach these issues.
If the conduct is presumptively protected, the government must demonstrate that the ban is sufficiently analogous to traditional gun regulations. Two questions aide in the inquiry: (1) How does the regulation burden the right to bear arms for self-defense? (2) Is the law’s justification similar to those in the historical tradition of firearm regulation?
The First Circuit in Ocean State concluded that Rhode Island’s ban on LCMs simply did not burden the right to bear arms for self-defense. Relevant here (though its application at this step is also disputed) is whether the regulated weapon is “in common use.” The First Circuit noted that citizens have almost never used more than ten shots—the act that LCMs enable, and that the ban aims to restrict—in self-defense. Thus, there was no actual burden on the right at all. But Judge Brennan read “in common use” to mean commonly owned and capable of use for lawful purposes, and accordingly found that the regulation was burdensome. But the Bevis majority distinguished the banned firearms from guns actually used in self-defense. Is the proper inquiry whether the weapon is capable of use for self-defense, or whether it is actually used for that purpose? Is the right burdened by banning weapons that can be used for self-defense or only those weapons that are used for self-defense? The Supreme Court in Bruen did not provide a clear answer.
The Bevis majority found that the ban on assault weapons was no more burdensome than traditional regulations of dangerous Bowie knives and explosives, and found that the justification for those laws was the same as for the ban on assault weapons: protecting the community from harm. The Bianchi majority pointed to the same regulations and found that they were justified on the grounds of regulating weapons that pose an exceptional danger to civilians. All three majorities concluded that the laws were no more burdensome than traditional regulations of similar weapons. But Judge Brennan explained that none of those regulations were categorical bans on possession and sale like the Illinois law, arguing that the tradition should be analogous to the regulation, not the weapon regulated.
All sides agree that there is a line between an overly general reading of traditional regulations and insisting on a historical twin, but where that line should be drawn is highly disputed. The majorities take a more expansive view, while Judge Brennan demands a much closer historical fit. Without further clarification from the Supreme Court, the answer to how-similar-is-similar-enough is anything but obvious.
In short, the outcome of Recchia’s claim will likely depend on which interpretation of Bruen the District of Massachusetts applies. While current rulings and First Circuit precedent suggest that categorical bans on assault weapons may be upheld, the issue is far from settled. The contours of the Bruen analysis remain to be seen, but as demonstrated by its early applications, there is certainly a need for clarity in Second Amendment jurisprudence.
