An AR-15 rifle on display at the 2024 SHOT Show in Las Vegas, Nevada
An AR-15 rifle on display at the 2024 SHOT Show in Las Vegas, Nevada / Stephen Gutowski

Analysis: Why Gun-Rights Litigants Keep Losing Hardware Ban Challenges [Member Exclusive]

A federal appeals court last week dealt gun-rights advocates another blow in a lawsuit over a state arms ban.

The way states and the federal courts that oversee them have ideologically segregated themselves in the modern era of hyperpolarization means the losses are likely to continue piling up. That means a circuit split is unlikely to occur anytime soon. In turn, that reduces the chances the Supreme Court weighs in–though not to zero.

The Boston-based First Circuit Court of Appeals is the latest to uphold a modern gun hardware ban. A three-judge panel unanimously upheld Rhode Island’s total ban on “large capacity magazines” (LCMs) capable of holding more than ten rounds. The panel determined the prohibition fits within the country’s historical tradition of arms regulation.

“The justification for the law is a public safety concern comparable to the concerns justifying the historical regulation of gunpowder storage and of weapons like sawed-off shotguns, Bowie knives, M-16s and the like,” Judge William Kayatta, a Barack Obama appointee, wrote in Ocean State Tactical v. Rhode Island. “The analogical ‘how’ and ‘why’ inquiry that Bruen calls for therefore strongly points in the direction of finding that Rhode Island’s LCM ban does not violate the Second Amendment.”

That reading of the history has become commonplace among the federal judges who have upheld hardware bans in similar lawsuits.

Its basic formulation essentially states that even though there are no “directly on-point” traditions, as Judge Kayatta put it, of regulating arms like magazines and semi-automatic rifles around the time of the Founding, “unprecedented societal concerns” tied to these arms warrants “a more nuanced approach” to the historical analysis required by Bruen.

Under this more nuanced approach, judges have analogized more loosely to laws beyond the time of the Founding. This has typically involved pointing to things like late nineteenth-century Bowie knife bans or America’s first federal gun-control laws arriving in the twentieth century as evidence of a tradition of regulation brought about by new societal harms allegedly caused by technological innovations in commonly available weaponry.

These analyses have also tended to downplay the burden modern hardware bans place on the right of self-defense by declaring that popular rifles like the AR-15 or firearms equipped with magazines capable of holding more than ten rounds are “rarely” needed in self-defense situations. This looser reading of history and the purportedly modest self-defense burden have formed the basis for upholding modern arms bans.

Gun-rights advocates have heavily criticized this type of application of the history and tradition test as a misreading (intentional or otherwise) of the Supreme Court’s guidance in Heller and Bruen. However, thus far, such complaints have not met many sympathetic ears in court, particularly at the appellate level.

It’s also likely to remain that way based on a simple fact of political geography.

Bans on AR-15s and magazine capacity are currently concentrated among just a dozen or so progressive-leaning states. Those states, in turn, fall within just a few federal appeals court circuits—primarily the First, Second, Third, and Ninth—which have a track record of being more prone to uphold gun restrictions than other circuits.

There have only been three federal appeals court decisions dealing with hardware bans since Bruen. Two out of the First and Seventh Circuits have upheld bans, while a lone Ninth Circuit panel struck down Hawaii’s butterfly knife ban. Yet even that one appellate win, on non-firearms related hardware no less, is now in question after another Ninth Circuit panel vacated it to rehear the case en banc (a sign that bodes poorly for gun-rights advocates if history is any guide).

More hardware ban rulings will probably come soon from federal appeals courts elsewhere. However, once again, it does not look good for gun-rights advocates. The Third Circuit heard oral arguments last Monday in an appeal of the lower court decision upholding Delaware’s ban on AR-15s and magazines capable of holding more than 17 rounds. Oral arguments suggest the judges are skeptical of overturning the decision.

Meanwhile, an en banc panel of the Fourth Circuit just recently took the highly unusual step of agreeing to hear a lawsuit over Maryland’s “assault weapon” ban before the three-judge panel that previously heard the case could even issue an opinion—a move that signals yet another outcome gun-rights advocates are unlikely to be happy with.

Gun-rigths activists may still be able to secure lower court wins here and there or the occasional favorable panel decision. But the simple fact of the geographical sorting that has taken place with hardware bans means it’s difficult to see a circuit split ever emerging on the question. Meanwhile, judges in jurisdictions more receptive to hardware bans have coalesced around a common analytical framework for upholding them.

Until the Supreme Court steps in and says otherwise, those decisions will likely continue to set the standard for the constitutionality of modern gun bans. The Court can always take up a hardware ban case if it feels its direction isn’t being followed. But the lack of a circuit split, combined with the numerous other Second Amendment questions it is teed up to answer, may lead them to put the issue on the back burner.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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