David Codrea has a great find on a recent petition for writ of certiorari before the supreme court concerning D.C.’s limit on magazine capacity. Here is the document.
But by rewriting Heller’s “in common use” test to add a dangerousness element, lower courts have continued to interest balance under a different name. At bottom, lower courts have decided that criminal misuses of firearms (as in mass shootings) justify complete bans on certain arms. They then use questionable analogical reasoning to justify that result. Both Heller and Bruen already rejected that sort of “subjective dangerousness” reasoning, and the Court should do so again here. And while the majority below said that the plus-ten magazine ban was comparable to laws that addressed weapons capable of unprecedented lethality, it could only get there by limiting the Second Amendment solely to individual self-defense. Viewing the Second Amendment through the correct lens—that it protects the right to bear arms for community defense, too—the historical analogues the majority relied on below fail.
The decision here shows that analogies under Bruen are helpful only when courts have an underlying theory about how to identify the relevant similarity. Unfortunately, many courts still don’t grasp the underlying principles of the Second Amendment.
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By adding a dangerousness test designed to override the “in common use” test, courts have adopted “the very sort of means-end scrutiny that Bruen explicitly forbids courts from applying in the Second Amendment context.” Bianchi, 111 F.4th at 479 (Gregory, J., concurring). Nothing has changed except that courts now “cloak[] interest balancing under the guise of ‘tradition.’” Duncan, 2025 WL 867583, at *47 (Bumatay, J., dissenting) (comparing Ninth Circuit’s analysis pre- and post-Bruen and noting “little” change). Worse, “even the regulations that failed in Heller or Bruen would survive” the lower courts’ dangerousness test. Id. at *52 (VanDyke, J., dissenting).
Even if analogies were necessary here, they weren’t used correctly. To analogize well, courts need to know the Second Amendment’s purpose. Heller confirmed that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. Although Heller clarified that the Second Amendment covers individual self-defense, it noted other lawful purposes for keeping and bearing arms, such as preserving the militia and hunting. Id. at 599. But after Heller and Bruen, courts have narrowed the Second Amendment to protect only keeping and bearing arms for individual self-defense against crime.
This petition is very well written. I wish it had been written for AR-15 bans and they had petitioned the court to hear Snope.
I commend this for your reading today. It smashes the “in common use” test as applied only to individuals. It specifically states what we all know and need to be addressed. The court either recognizes the role of militia or it doesn’t. If so, then good. If not, then they will have completely given up any legitimacy to caring what the words of the 2A say.
