Dangerous, But Not Unusual: Mistakes Commonly Made by Courts in Post-Bruen Litigation MARK W. SMITH

Dangerous, but not Unusual: Mistakes Commonly
Made by Courts in Post-Bruen Litigation

MARK W. SMITH*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
I. PLAIN TEXT ANALYSIS: THE SECOND AMENDMENT’S UNQUALIFIED

TEXTUAL COMMAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
II. THE BURDEN SHIFTS: ONCE THE TEXT OF THE SECOND

AMENDMENT IS IMPLICATED, THE BURDEN SHIFTS TO THE
GOVERNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604
III. THE FORK IN THE CONSTITUTIONAL ROAD: HAS THE SUPREME

COURT ALREADY SET FORTH THE CONSTITUTIONAL TEST THAT
GOVERNS THE MODERN FIREARMS LAW AT ISSUE? . . . . . . . . . . . . 605
A. Path 1: Cases where the Supreme Court has Already Decided
the Governing Constitutional Test . . . . . . . . . . . . . . . . . . . . . 606
B. Path 2: Cases where the Supreme Court Has Not Yet Decided
the Constitutional Test to be Applied . . . . . . . . . . . . . . . . . . . 607
1. Analogues Must Be Government Regulations and Not
Generic Historical Narratives or Other Secondary
Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
2. Not All History Is Created Equal: Analogues Must Be
From the Relevant Time Period . . . . . . . . . . . . . . . . . . . . . . 609
3. Racist or Unconstitutional Laws Cannot Be Analogues . . . 612
4. Analogues must be sufficiently “well-established” and
“representative” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
5. The “Why” and the “How” Of A Proposed Analogue and
the “Why” and “How” of the Challenged Modern Law
Must Match Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
* Mark W. Smith is a Visiting Fellow in Pharmaceutical Public Policy and Law in the Department of
Pharmacology, Oxford University and a Distinguished Scholar and Senior Fellow of Law and Public
Policy, Ave Maria School of Law. He hosts the Four Boxes Diner YouTube Channel (https://www.
youtube.com/@TheFourBoxesDiner), which addresses Second Amendment scholarship, history and
issues, and whose educational videos have been viewed over 37 million times. His scholarship has been
cited by federal courts and by attorneys before the United States Supreme Court in NYSRPA v. Bruen and
in United States v. Rahimi. He is also a graduate of the NYU School of Law. © 2024, Mark W. Smith.
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600 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 22:599
6. A Lack of Historical Regulations Favors the Second

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616
7. Dicta cannot save the government from its burden of
supplying actual historical analogue laws . . . . . . . . . . . 618
IV. CONTEMPORARY TYPES OF PENDING SECOND AMENDMENT

CHALLENGES AND THE CONSTITUTIONAL QUESTIONS THEY
PRESENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619
A. Arms-Ban Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619
B. Restrictions Imposed on 18-20 Year Olds. . . . . . . . . . . . . . . . 621
C. Government-Mandated Gun Free Zones or Sensitive Places. . . 621
D. Licensing Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 622
E. Gun and Ammunition Tax Challenges . . . . . . . . . . . . . . . . . . 623
V. COMMON MISTAKES MADE BY LOWER COURTS AFTER HELLER

AND BRUEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 624
A. Common mistakes made in arms ban cases . . . . . . . . . . . . . . 624
1. Heller’s “in common use” test governs in all arms ban cases
and cannot be ignored, changed, or circumvented . . . . . . . . 624
2. The burden is on the government to prove that an arm is
unusual and not “in common use” . . . . . . . . . . . . . . . . . . . . 626
3. The Test Is Not “In Common Use for Self-Defense” .... 627
4. The language from Bruen regarding technological
changes and societal concerns is not a legal test . . . . . . . 630
5. In arms ban cases, “in common use” is the test and lower
courts err when they ignore that test and then engage in
the Bruen historical methodology anew . . . . . . . . . . . . . . . 633
6. Courts are not justified in ignoring or altering the “in
common use” test simply because they disagree with it,
or in short-circuiting it by importing empirical tests into
the “plain text” inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636
7. It is improper to import substantive, empirical tests into
the initial threshold “plain text” inquiry . . . . . . . . . . . . . . . 638
B. Discretionary Licensing Regimes. . . . . . . . . . . . . . . . . . . . . . 639
C. Mistakes in Cases Challenging Gun Restrictions Imposed on
Young Adults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 643
2024] DANGEROUS, BUT NOT UNUSUAL 601
D. Government-Mandated Gun Free Zones a/k/a “Sensitive

Places” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 644
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653
INTRODUCTION
When the U.S. Supreme Court decided New York State Rifle & Pistol
Association v. Bruen, it provided the lower courts with a detailed roadmap to
ensure proper application of the text-first and history-second methodology
employed by the Court in the Second Amendment context since District of
Columbia v. Heller. Yet notwithstanding the Court’s explicit directions, many
lower courts fail to follow Bruen and either take a wrong turn or implement their
own shortcuts when deciding constitutional challenges to modern-day firearm
restrictions. Some of these cases arose as challenges to gun control laws enacted
pre-Bruen; other cases are challenges to laws enacted after Bruen and in seeming
defiance of that decision. This article seeks to clarify some of the confusion that
has arisen post-Bruen, and to explain how the Supreme Court’s clear reasoning
and instructions in Bruen—and Heller before it—provide direct and simple guid-
ance that lower courts are bound to follow in cases implicating the constitutional
right to bear arms.
At the outset, the Bruen decision marks a dramatic move by the Supreme
Court to put Second Amendment jurisprudence back on the right track.
Following the Heller decision in 2008, which embraced an originalist text-first,
history-second interpretive approach, many lower courts declined to follow
Heller’s originalist methodology. Instead, those courts imported interest bal-
ancing tests, such as intermediate scrutiny, from the context of the First
Amendment. By balancing the government’s asserted interest in “public
safety” against the degree that a law infringes on the right to keep and bear
arms, it was possible to guarantee that in virtually every case the government
would win, and fundamental constitutional rights would be eroded. That hap-
pened even though Heller expressly rejected interest-balancing.
Fourteen years later, Bruen made it clear beyond any doubt that interest balanc-
ing cannot be used to decide Second Amendment cases. It instructed that the plain
text of the Second Amendment must be faithfully followed, and that the govern-
ment bears the burden to justify any modern regulations, if it can, using historical
analogue laws. In applying Bruen, the Court in United States v. Rahimi again
rejected interest-balancing as an acceptable Second Amendment framework for
the lower courts to apply.
Part I of this article identifies the principles and holdings to be followed in all
Second Amendment cases faithfully applying Heller’s and Bruen’s text-first and
history-second methodology. It also describes what the Court meant when it ref-
erenced the Second Amendment’s “unqualified command.”
Part II discusses the burden imposed on the government to justify a modern

firearms law once the plain text of the Second Amendment covers an individual’s
conduct. Some courts pay lip service to the government’s burden while others
erroneously place the burden on the Second Amendment plaintiff, or improperly
elevate historical questions to the textual level of the Bruen analysis. But Bruen
instructs repeatedly that the government bears the burden to prove the existence
of a robust regulatory historical tradition justifying its regulation of the right to
keep and bear arms.
Part III identifies the constitutional fork in the road that lower courts will en-
counter as they apply Bruen’s text-first and history-second methodology. This
fork arises after a determination is made that the Second Amendment presump-
tively protects the conduct being regulated by a modern firearms restriction, but
before a court engages in any of the historical analysis required under Bruen. It is
at this juncture that the lower courts must ask whether the Supreme Court itself
has already done the necessary historical research and analysis, and formulated a
specific constitutional test to be applied. If the answer is yes, then the lower
court’s analysis must be controlled by that specific test. For example, in cases
challenging arms-ban laws, the lower courts need only determine whether the
government has met its burden under the “in common use” test set forth by the
Court in Heller that governs such challenges. In cases where the Supreme Court
has not already performed the historical spadework and articulated the applicable
constitutional test, the government must perform the historical legal work neces-
sary to prove that its modern firearms regulation does not tread on the Second
Amendment.
To meet its burden, the government must come forward with a sufficient num-
ber of analogous historical firearm regulations. It cannot meet its burden through
imaginative historical narratives, or amorphous general understandings about
dangerousness or preserving the peace. Nor can it meet its burden by citing com-
mentaries, anecdotes, or newspaper articles about laws that could have been
passed but weren’t, or by submitting minutes from state ratifying conventions.
Part III summarizes the rules established by Bruen that the lower courts must
follow when evaluating the quality of historical analogues proffered by the gov-
ernment. This part concludes with a discussion of the proper standard to be
applied when evaluating such analogues. Here, the lower courts must decide
whether the government’s proposed historical analogues should be evaluated
under the considerably tougher “distinctly similar” standard or whether reasoning
by analogy will be permitted to determine whether proposed historical analogues
are “relevantly similar” to a modern gun law.
Part IV of the article summarizes the various types of Second Amendment
challenges being litigated post-Bruen in the courts, and the constitutional ques-
tions they present.
Part V addresses some of the basic errors the lower courts are making after
Bruen, with an emphasis on arms-ban cases, cases regarding who can possess or
carry weapons, and lawsuits over where one can carry.
I. PLAIN TEXT ANALYSIS: THE SECOND AMENDMENT’S UNQUALIFIED TEXTUAL

COMMAND
The Constitution’s text is the highest legal norm in our system of government;
it is the supreme law of the land. And as the Supreme Court put it in Bruen, the
Second Amendment itself contains an “unqualified command.”1 Thus, the first
task in interpreting that command is to examine its plain text. Fortunately, the
Supreme Court has already defined (expansively) almost every term found with
that amendment’s text—thus eliminating the need for lower courts to crack open
Founding-era dictionaries.
Bruen requires lower courts to follow the “plain text” of the Second Amendment,
which requires being able to answer at least three textual questions:
� whether the plaintiffs are “part of ‘the people’ whom the Second Amendment
protects,”
� whether their proposed course of conduct is encapsulated by the definition
of the verbs “keep and bear,” and
� whether the implements being kept or borne are “arms,” which “extends,
prima facie, to all instruments that constitute bearable arms.”2
The Supreme Court has defined all of the relevant terms in the operative
clause of the Second Amendment, except for “infringed.”3 “The people” means,
in general, “all Americans.”4 Heller approved the following language for who
constitutes “the people”:
“[T]he people” seems to have been a term of art employed in select parts of the
Constitution. . . [and it] 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.5
1. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 17.
2. Bruen, 597 U.S. at 19, 28 and 32. See, e.g., Antonyuk v. Hochul, 639 F. Supp. 3d 232, 297 (N.D.N.
Y. 2022), aff’d in part, vacated in part, remanded sub nom., Antonyuk v. Chiumento, 89 F.4th 271 (2d
Cir. 2023) (court finds that “the Second Amendment’s plain text covers the conduct in question: carrying
(or applying for a license to carry) a concealed handgun in public for self-defense”; plaintiff “is part of
‘the People’ protected by the amendment”; and “the regulated conduct (i.e., bearing a handgun in public
for self-defense falls under the phrase ‘keep and bear’”).
3. Two Courts of Appeals recently defined “infringe” as “to hinder,” which encompasses lesser
burdens on the right even if those burdens do not destroy the exercise of the right. See Frein v. Pa. State
Police, 47 F.4th 247, 254 (3d Cir. 2022); Maryland Shall Issue, Inc. v. Moore, 86 F.4th 1038, 1044 n.8
(4th Cir. 2023). This makes sense because commonly used dictionaries relied on by Heller defined “to
infringe” as meaning “to hinder” or “to destroy.” To Infringe, SAMUEL JOHNSON, 1 DICTIONARY OF
ENGLISH LANGUAGE 1101 (4th ed. 1773); see also Infringe, NOAH WEBSTER, AMERICAN DICTIONARY OF
THE ENGLISH LANGUAGE 872 (1828) (defining “infringe” as “[t]o destroy or hinder”); Nunn v. State, 1
Ga. 243, 251 (1846) (cited in District of Columbia v. Heller, 554 U.S. 570, 612 (2008) (using
“infringed” synonymously with “curtailed, or broken in upon[] in the smallest degree”)).
4. See Heller, 554 U.S. at 581.
5. Id. at 580 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)).
“Arms” include all weapons of offense and defense that “constitute bearable
arms, even those that were not in existence at the time of the founding.”6 “To
Keep” means to possess, and “to bear” includes to carry.7
These definitions make the challengers’ role under Bruen’s initial inquiry into
textual meaning quite simple in virtually all cases. If an American seeks to pos-
sess or carry a bearable arm and is hindered from doing so by a governmental
restriction, he need only point to the Supreme Court’s definition of these phrases
to satisfy his burden. Because of its subordinate position in our judicial system, a
lower “inferior” court has no discretion to depart from these controlling defini-
tions, so the initial inquiry into text is at an end. Of course, as described below,
that does not automatically mean that the challenged restriction is invalid—but it
does shift the burden to the government to justify the restriction in the “historical
tradition” aspect of Bruen’s inquiry.
II. THE BURDEN SHIFTS: ONCE THE TEXT OF THE SECOND AMENDMENT IS
IMPLICATED, THE BURDEN SHIFTS TO THE GOVERNMENT
If the plain text of the Second Amendment covers the conduct in question, the
conduct is “presumptively protect[ed]” by the Constitution.8 The burden then
shifts to the government to prove that the regulation is constitutional.9 To satisfy
its burden, the government must prove that the challenged regulation is “consist-
ent with the Nation’s historical tradition of firearm regulation.”10
Justice Thomas’s Bruen opinion reiterated this point again and again:
� “[T]he government must affirmatively prove that its firearms regulation is

part of the historical tradition.”11
� “The government must then justify its regulation by demonstrating that it
is consistent with the Nation’s historical tradition of firearm regulation.”12
� “[T]he burden falls on respondents [the government] to show that New
York’s proper-cause requirement is consistent with this Nation’s historical
6. Id. at 582; see also United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (finding it “mistaken” to
“apply[] the protections of the [Second Amendment] right only to muskets and sabers.”).
7. Heller, 554 U.S. at 582–84 (citation omitted).
8. Bruen, 597 U.S. at 17.
9. The Supreme Court’s Second Amendment interpretive methodology is sometimes described by
the shorthand of “text, history, and tradition.” But it is important to understand the role of each element
of this description to avoid confusion and error. It is more accurate to describe the Court’s methodology
as a “text and then historical tradition of regulation” methodology. “Text” is the plain text meaning of
the Second Amendment’s terms: “arms,” “bear,” “keep,” etc. That is what is relevant to implicating the
Second Amendment and shifting the burden to the government. At that point, the government must
demonstrate a historical tradition of regulation in existence at ratification to justify a challenged law.
Historical events that occur or traditions that develop after ratification cannot narrow the presumptive,
plain text scope of the Second Amendment’s protection. See Bruen, 597 U.S. at 36 (explaining that “to
the extent later history contradicts what the text says, the text controls”).
10. Bruen, 597 U.S. at 17 and 24.
11. Id. at 19.
12. Id. at 17 and 24.
tradition of firearm regulation. Only if respondents carry that burden can

they show that the pre-existing right codified in the Second Amendment . . .
does not protect petitioners’ proposed course of conduct.”13
� “[T]he government must demonstrate that the regulation is consistent with
this Nation’s historical tradition of firearm regulation.”14
� “[A]nalogical reasoning requires . . . that the government identify a well-
established and representative historical analogue. . . .”15
� “[New York has] failed to meet their burden to identify an American tradi-
tion justifying New York’s proper-cause requirement.”16
� “Of course, we are not obliged to sift the historical materials for evidence
to sustain New York’s statute. That is [New York States’s] burden.”17
The Supreme Court could not have been clearer: the burden is on the govern-
ment, and the burden is very real.
If, of course, the constitutional test for a certain class of cases has already been
decided by the Supreme Court, such as the “in common use” test, which was rec-
ognized in Heller for determining what kinds of arms are protected, then it is not
only unnecessary for a lower court to go through the Bruen historical methodol-
ogy; it is also error. Accordingly, the next Part explains how that works, and why.
III. THE FORK IN THE CONSTITUTIONAL ROAD: HAS THE SUPREME COURT ALREADY
SET FORTH THE CONSTITUTIONAL TEST THAT GOVERNS THE MODERN FIREARMS LAW
AT ISSUE?
When an individual’s conduct is covered by the Second Amendment’s text, the

Second Amendment is implicated and the burden shifts to the government to
prove that the challenged gun law is consistent with an identifiable and longstand-
ing historical tradition of regulating firearms. If no such historical tradition of reg-
ulation exists, then the government loses and the challenged gun control law is
unconstitutional.
Before engaging in any historical analysis, however, lower courts must first
ask whether the Supreme Court has already decided the constitutional test to be
applied given the nature of the regulation being challenged. If the answer is yes,
then the lower court must directly apply that constitutional test to the case before
it. If the answer is no, then the lower court must instead apply Bruen’s historical
methodology to decide whether the government has proven that the challenged
firearms law comports with our national historical tradition of firearm regulation.
13. Id. at 34.

14. Id. at 17.
15. Id. at 30 (emphasis omitted).
16. Id. at 38-39.
17. Id. at 60.
A. Path 1: Cases where the Supreme Court has Already Decided the Governing
Constitutional Test
The Supreme Court has issued five significant Second Amendment opinions in
the 21st century. These decisions have given rise to clear precedents and constitu-
tional tests that provide binding guidance concerning some of the most important
constitutional questions pending today.
For example, cases involving what arms are protected or can be banned are
directly controlled by Heller. For challenges to these types of laws, Heller itself
conducted the text-first and history-second methodological analysis to develop a
specific constitutional test: bearable arms cannot be banned if they are in com-
mon use today by Americans for lawful purposes. Lower courts may not substi-
tute a constitutional test in arms ban cases different from Heller’s “in common
use” test. Nothing in Bruen opened the door to lower courts deviating from the
holdings and rationales set forth in Heller. Bruen explained that it was simply
making “the constitutional standard endorsed in Heller more explicit,” not pre-
scribing a new standard.18 And in light of Bruen, it is readily apparent how the
Court applied that constitutional standard to arrive at the common use test. First,
the Court examined the “textual elements” of the Second Amendment and con-
cluded that “they guarantee the individual right to possess and carry weapons.”19
There is nothing in the plain text that distinguishes between different types of
weapons. As the Court explained, as a “prima facie” matter, the right extends “to
all instruments that constitute bearable arms.”20 Second, after completing its tex-
tual analysis, the Court turned to historical “limitation[s] on the right to keep and
carry arms.”21 One such limitation was “the historical tradition of prohibiting the
carrying of ‘dangerous and unusual’ weapons,” which the Court held “fairly sup-
ported” the conclusion that “the sorts of weapons protected were those ‘in com-
mon use at the time.’”22 Therefore, under Heller, only dangerous and unusual
weapons can be banned, and it follows that arms that are in common use—which
by definition are not unusual—cannot be banned. Because the burden is on the
government to prove that a law is consistent with historical tradition, it is the gov-
ernment’s burden to prove that any particular arm is dangerous and unusual.
In contexts such as these where the Supreme Court has already applied the
text-first and history-second approach and used it to articulate a specific control-
ling test, it is improper as a matter of stare decisis for lower courts to undertake
the historical analysis anew. The constitutional tests articulated by the Supreme
Court cannot be ignored or revised by the lower courts though, as illustrated
below, some lower courts have done just that.
18. 597 U.S. at 31.

19. Heller, 554 U.S. at 592 (emphasis added).
20. Id. at 582.
21. Id. at 626-27.
22. Id. at 627.
B. Path 2: Cases where the Supreme Court Has Not Yet Decided the
Constitutional Test to be Applied
In cases in which the Supreme Court has not yet decided the constitutional test
to be applied in a particular type of Second Amendment challenge, the govern-
ment has some historical work to do. In these sorts of cases, the government must
prove that the modern firearms regulation being challenged is “consistent with
the Nation’s historical tradition of firearm regulation.”23
To meet its burden, the government must identify historical analogues (enacted
laws or binding court decisions) from the proper historical time period, which is
the time of America’s Founding. To constitute a historical tradition of regulation,
the historical analogues proffered by the government must constitute evidence of a
longstanding practice at the Founding, be sufficiently “well-established” and “rep-
resentative,” and must have had legal force. This type of work, i.e., the discovery
and identification of actual laws on the books enforceable against Americans, is
particularly well-suited for lawyers who engage in legal research every day—
including by applying that over-200-year-old binding legal document known as
the U.S. Constitution. Moreover, reasoning by analogy from older laws to modern
legal controversies is the bread and butter of the legal profession.
Bruen identifies, either directly or indirectly, a series of rules that the courts
must employ when evaluating whether the proposed historical analogues prof-
fered by the government are an appropriate (or inappropriate) basis for historical
reasoning. If an analogue flunks any of these rules, courts must disregard it.
1. Analogues Must Be Government Regulations and Not Generic Historical

Narratives or Other Secondary Sources
A proposed historical analogue must be an actual “regulation”; that is, the pro-
vision in question must be a law (as evidenced by constitutions, statutes or the
common law), it must have had binding effect, and it cannot be a mere discussion,
statement of opinion, or a proposal never adopted.24 The Supreme Court requires
the government to prove a historical tradition of “firearm regulation,” which
means a binding legal obligation that, upon violation, may give rise to a legal
penalty.
The exclusive focus of this inquiry should be primary legal sources. One thing
that should not be relied on is the biased testimony of so-called modern-day
experts on history, including those who purport to opine on so-called “sensitive
places” or who raise speculative concerns about collateral damage from firearm
usage. When Bruen rejected application of the tiers of scrutiny in the Second
Amendment context, it put these “experts” out of business; no longer is there a
23. Bruen, 597 U.S. at 24 (emphasis added).

24. Proper analogues under the Heller/Bruen methodology are federal and state constitutions and
statutes, plus the common law, which prominent commentators such as William Blackstone and Joseph
Story also help to illuminate. Under Bruen’s reasoning, judicial decisions can also provide evidence of
the contours of the common law.
need to “balance” the effects of competing public policy choices as many lower
courts had erroneously done after Heller.
Judge Carlton Reeves of the District Court for the Southern District of
Mississippi made a name for himself in the summer of 2022 when he complained
that Bruen required him to “play historian in the name of constitutional adjudica-
tion.”25 He ordered the United States Department of Justice to brief him on
whether to appoint a historian in a case concerning the federal statute prohibiting
felons from possessing firearms. Lawyers for the Justice Department rightly con-
cluded that they didn’t need any experts to tackle the historical research required
by Bruen. The Department stated that “even where a comprehensive application
of the Supreme Court’s text-and-history standard is necessary” to address a
Second Amendment challenge to a gun-related law, the “correct[]” course is for
the court to “resolve[]” the case “based on materials compiled by the parties.”26
Courts routinely decide constitutional questions without testifying experts and
there is no reason why a different rule should apply to the Second Amendment.
The Supreme Court has resolved all five of the 21st century gun cases without the
use of experts.27 Bruen called analogical reasoning “a commonplace task” for any
lawyer or judge—historical or other experts need not apply.28 That is because
questions of constitutional law are a combination of legal questions and “legis-
lative facts” rather than facts about the immediate activities of the parties.
Legislative facts “have relevance to legal reasoning . . . in the formulation of a
legal principle or ruling by a judge or court.”29 It is those facts that matter
under Bruen’s methodology.
Judge Kathryn Mizelle from the Middle District of Florida recently expressed
this concept quite clearly in striking down a federal law criminalizing firearm car-
riage at a post office. She wrote: “[T]he relevant inquiries are interpretive and . . .
the questions at bottom are legal. Nothing differs about constitutional cases—the
Supreme Court did not require expert testimony to determine the original meaning
of the Confrontation Clause in Crawford or the Vesting Clause of Article II in Seila
Law.30 After all, it is the judicial function—not that of an expert witness—‘to say
what the law is.’”31 And judges are more than capable of identifying older legal
25. United States v. Bullock, 679 F. Supp. 3d 501, 508 (S.D. Miss. 2023). Ariane de Vogue, Federal
judge blasts the Supreme Court for its Second Amendment opinion, CNN POLITICS (Nov. 1, 2022) -
CNNPolitics, https://www.cnn.com/2022/11/01/politics/second-amendment-opinion-supreme-court-
judge-carlton-reeves/index.html [https://perma.cc/HL5B-ZVBP].
26. Submission Addressing the Need for a Court-Appointed Historian at 8, United States v. Bullock,
No. 3:18-CR-165-CWR-FKB, Doc. 71, (S.D. Miss. Dec. 12, 2022) (“USG Bullock Br.”).
27. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010); Caetano v.
Massachusetts, 577 U.S. 411 (2016); Bruen, 597 U.S. 1 (2022); Rahimi, 144 S. Ct. 1889 (2024).
28. Bruen, 597 U.S. at 28.
29. Fed. R. Evid. 201, Advisory Committee Note.
30. See Crawford v. Washington, 541 U.S. 36, 42-43 (2004); Seila Law LLC v. Consumer Fin. Prot.
Bureau, 591 U.S. 197, 227 (2020).
31. United States v. Ayala, 2024 WL 132624, at *13 (M.D. Fla. Jan. 12, 2024) (quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803)) (emphasis omitted).
precedents including older laws and then applying them to present-day cases. It
is not an argument to mouth the words “judges are not historians” when judges
apply historical legal precedents literally every day of their professional lives,
and all government officials swear an oath to the U.S. Constitution, which is the
ultimate historical legal document applied every day by lawyers and judges
across the land.32 Indeed, just in June 2024, the Court decided Rahimi and upheld
a firearms regulation after extensive briefing and argument. Its opinion cited zero
expert opinions, relied on briefing, research, and argument, and showed that
every member of the Court was clearly able to embark on the basic legal enter-
prise of drawing relevant principles from historical enactments and case law and
reasoning therefrom to modern circumstances.33
It is also an open question whether so-called “experts” would add any value, as
most are left-wing academics who have an agenda of their own. Anyone can
examine the public statements of many of the government’s “experts” and tell im-
mediately that they are staunchly opposed to Second Amendment rights. They
thus offer their “expertise” with a heavy dose of advocacy, so judges should view
their submissions critically, and be confident that they can find legislative facts
themselves and reason by analogy to reach sound conclusions.34
2. Not All History Is Created Equal: Analogues Must Be From the Relevant
Time Period
The Supreme Court in Heller made clear that the proper time-period for deter-
mining the meaning of the Second Amendment is around 1791, when the Bill of
Rights was adopted.35 “Constitutional rights are enshrined with the scope they
were understood to have when the people adopted them.”36 That is 1791, when
the Bill of Rights was ratified. According to Heller: the words of the Constitution
must be given their “normal and ordinary” meaning, not “secret or technical
meanings that would not have been known to ordinary citizens in the founding
32. See generally Hawai’i v. Wilson, 543 P.3d 440, 453 (Haw. 2024) (“Judges are not historians.
Excavating 18th and 19th century experiences to figure out how old times control 21st century life is not
a judge’s forte.”).
33. Rahimi, 144 S. Ct. at 1899.
34. A strong legal brief making arguments against so-called experts who have a record of supporting
gun control can be found in an amicus brief filed in the U.S. Supreme Court in Rahimi. See Brief for
Professors of Second Amendment Law, The Second Amendment Law Center, And The Independence
Institute as Amici Curiae Supporting Respondent And Affirmance, No. 22-915, at 32-35.
35. For a more complete discussion of why the Founding Era is the correct period for searching for any
possible historical analogue laws, see two articles by this author. The most detailed article is Mark W.
Smith, “Not All History Is Created Equal”: In the Post-Bruen World, the Critical Period for Historical
Analogues Is when the Second Amendment Was Ratified in 1791, and not 1868 (Oct. 1, 2022) (working
paper) (available at https://ssrn.com/abstract=4248297 or http://dx.doi.org/10.2139/ssrn.4248297 [https://
perma.cc/TSZ5-RY2Z]). A condensed version is Mark W. Smith, Attention Originalists: The Second
Amendment Was Adopted in 1791, Not 1868, 31 HARV. J.L. & PUB. POL’Y Per Curiam (Fall 2022). The
discussion in this section draws on both, but the author recommends consulting the articles themselves for
supporting details.
36. Heller, 554 U.S. at 634–35.
generation.”37 To shed light on the original meaning of the Second Amendment,

therefore, any analogues that are proposed to limit the scope of its plain text,
based on an alleged historical tradition, must come from the Founding era.
In Bruen, the Court reiterated that the Constitution’s “meaning is fixed according
to the understandings of those who ratified it. . . .”38 Noting that the “Constitution
can, and must, apply to circumstances beyond those the Founders specifically
anticipated,”39 Bruen quoted from United States v. Jones,40 which concluded that
installation of a tracking device on a vehicle was “a physical intrusion [that] would
have been considered a ‘search’ within the meaning of the Fourth Amendment
when it was adopted.”41
As an aside, Justice Thomas in Bruen observed that there is an “ongoing schol-
arly debate” as to whether 1868, when the Fourteenth Amendment was ratified
and thus enabled incorporation of the Bill of Rights against the states, should be
viewed as the proper time for determining the Second Amendment’s original
meaning, rather than 1791. This observation has led some proponents of firearm
restrictions to argue for the use of historical analogue laws enacted after the Civil
War. However, that position is contrary to Supreme Court precedent interpreting
other Bill of Rights provisions, and the Supreme Court has repeatedly cautioned
against using analogues too far removed in time from the Founding.42 Justice
Thomas himself wrote in Bruen that “As we recognized in Heller itself, because
post-Civil War discussions of the right to keep and bear arms ‘took place 75 years
after the ratification of the Second Amendment, they do not provide as much
insight into its original meaning as earlier sources.’”43 He continued:
And we made clear in Gamble that Heller’s interest in mid- to late-19th-century

commentary was secondary. Heller considered this evidence “only after
surveying what it regarded as a wealth of authority for its reading—including
the text of the Second Amendment and state constitutions.” In other words, this
19th-century evidence was “treated as mere confirmation of what the Court
thought had already been established.”44
37. Id. at 576–77 (emphasis added).

38. Bruen, 597 U.S. at 28.
39. Id. (emphasis added).
40. United States v. Jones, 565 U.S. 400, 405 (2012).
42. Additionally, such an interpretation would mean that the Second Amendment’s meaning changes
throughout history. For example, if the key is the public understanding when the right became applicable,
then the Second Amendment carries a 1959 meaning for Hawaii and Alaska, and any new state entering
the union tomorrow would be subject to 2024 understandings of the Second Amendment. To the extent
government parties seek to use 1868 as the key date to analyze for then-contemporary gun control law—
on the theory that this was the year the Second Amendment became applicable to the states—then, it is not
clear why the answer for later-added states would not then be when they were added, as that is when the
Second Amendment became applicable to them.
43. Bruen, 597 U.S. at 36-37.
44. Id. (citing Gamble v. United States, 139 S. Ct. 1960, 1975–1976 (2019) (majority opinion)).
Bruen itself also concluded that “late-19th-century evidence cannot provide

much insight into the meaning of the Second Amendment when it contradicts
earlier evidence.”45 And the Court refused to even entertain any 20th-century evi-
dence proffered by New York and its amici.46
Justice Amy Coney Barrett, concurring, was careful to point out the dubious
relevance of late 19th-century history, noting that if 1791 is the benchmark:
New York’s appeals to Reconstruction-era history would fail for the independ-
ent reason that this evidence is simply too late (in addition to too little). Cf.
Espinoza v. Montana Dept. of Revenue, 140 S. Ct. 2246, 2258–2259 (2020) (a
practice that “arose in the second half of the 19th century . . . cannot by itself
establish an early American tradition” informing our understanding of the
First Amendment) [parallel citations omitted]. So today’s decision should not
be understood to endorse freewheeling reliance on historical practice from the
mid-to-late 19th century to establish the original meaning of the Bill of Rights.
On the contrary, the Court is careful to caution “against giving postenactment
history more weight than it can rightly bear.”47
The Court in United States v. Rahimi observed once again the academic debate
on whether the relevant historical timeframe for analogous laws was 1791 or
1868, finding the resolution of that debate in Rahimi “unnecessary to decide the
case” and therefore rendering any such resolution mere dictum.48 But the concur-
rences of Justice Kavanaugh49 and Justice Barrett50 in that case strongly rein-
forced the notion that 1791 was the appropriate benchmark for the Second
Amendment.
In Espinoza, a case involving the First Amendment, Chief Justice John Roberts
discounted laws from more than 30 states—certainly a widespread practice of
regulation—that adopted no-aid provisions for religious schools in the second
half of the 19th century. “Such evidence,” he concluded “may reinforce an early
practice but cannot create one.” He went on to say: “The no-aid provisions of the
19th century hardly evince a tradition that should inform our understanding of the
Free Exercise Clause.”51 The same is as true of the Second Amendment as it is of
the First Amendment.
45. Bruen, 597 U.S. at 66 n.28 (emphasis added).

46. Id.
47. Bruen, 597 U.S. at 82-83 (Barrett, J., concurring).
48. Rahimi, 144 S. Ct. at 1898 n.1 (2024).
49. Id. at 1913 (Kavanaugh, J., concurring) (“Especially for the original Constitution and the Bill of
Rights . . . . the Court pays particular attention to the historical laws and practices in the United States
from Independence in 1776 until ratification in 1788 or 1791.”).
50. Id. at 1925 (Barrett, J., concurring) (“[E]vidence of “tradition” unmoored from original meaning
is not binding law . . . ‘Original history’—i.e., the generally dispositive kind— plays two roles in the
Second Amendment context. It elucidates how contemporaries understood the text—for example, the
meaning of the phrase “bear Arms.” It also plays the more complicated role of determining the scope of
the pre-existing right that the people enshrined in our fundamental law.”).
51. Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2259 (2020).
3. Racist or Unconstitutional Laws Cannot Be Analogues

Just after Bruen, governments attempting to defend gun control laws with histor-
ical analogues realized that there were very few gun control laws throughout most
of American history; this is especially true during the time period leading up to and
immediately following the Constitution’s ratification,52 a time period ending at or
around 1800.53 Because there is a dearth of analogues to modern day gun control,
proponents of such measures have begun citing to laws that are undeniably racist,
noxious, and unconstitutional by today’s standards. These laws cannot properly
form a basis for analogical reasoning seeking to justify modern gun laws.
In Bruen, the Court disregarded discriminatory laws, noting that before the
Civil War, the Supreme Court and States had wrongfully withheld from free
blacks the rights of citizenship (including the right to keep and bear arms).54 And
after the Civil War, Bruen explained, “the exercise of this fundamental right by
freed slaves was systematically thwarted. This Court has already recounted some
of the Southern abuses violating blacks’ right to keep and bear arms.”55 The
Bruen Court did not credit such laws as informing the meaning of the Second
Amendment.56
These laws have been rightly rejected by courts. Judge Roger Benitez in the
U.S. District Court of the Southern District of California reached that conclusion
in a case arising from California’s ban on semi-automatic rifles. Judge Benitez
wrote:
Incredibly, the State asks this Court to treat as analogues 38 laws on the State’s
list which applied only to particular disfavored people groups, such as slaves,
Blacks, or Mulattos. Those laws are not relevant to the “assault weapon” ban
challenged in this case. Even if they were, this Court would give such discrimi-
natory laws little or no weight.57
Judge Benitez yet again rejected the use of laws with racist and noxious under-
pinnings in a case involving California’s novel background check system for the
purchase of ammunition:
The State’s compilation lists 48 laws which made it a crime to possess a gun
and ammunition by Negros, Mulattos, slaves, or persons of color, and two
laws that prohibited sales to Indians. For example, the Attorney General lists a
52. See generally STEPHEN P. HALBROOK, THE RIGHT TO BEAR ARMS: A CONSTITUTIONAL RIGHT OF
THE PEOPLE OR A PRIVILEGE OF THE RULING CLASS? Chapters 4-6 (2021) (describing the American right
to bear arms in the late 18th and early 19th centuries).
53. See Bruen, 579 U.S. at 46–50 (discussing “the history of the Colonies and the early Republic,”
ending with “an 1801 Tennessee statute”).
54. Bruen, 597 U.S. at 60.
55. Id. at 60–61.
56. See id. at 63 n.26 (disregarding analogue because it violated the Seventh Amendment’s right to a
jury trial).
57. Miller v. Bonta, 699 F. Supp. 3d 956, 978 (S.D. Cal. 2023).
1798 Kentucky law which prohibited any “Negro, mulatto, or Indian” from
possessing any gun or ammunition. An 1846 North Carolina law offers another
example wherein it was prohibited to sell or deliver firearms to “any slave.”
This is the third time the Attorney General has cited these laws in support for
its laws and restrictions implicating the Second Amendment. These fifty laws
identified by the Attorney General constitute a long, embarrassing, disgusting,
insidious, reprehensible list of examples of government tyranny towards our
own people.58
He added that:
These laws that disarmed slaves and Indians were targeted at groups excluded
from the political community—“i.e., written out of ‘the people’ altogether.”
At the time these laws existed, neither people of color, nor native Americans
were considered citizens of the United States. So, it makes little sense to argue,
as the Attorney General implicitly does, that historical restrictions placed on
non-citizens, who were not accorded constitutional protections, now justify
placing similar modern restrictions on citizens who do enjoy constitutional
rights.59
It is noteworthy that the U.S. Department of Justice relied on such laws in the
Fifth Circuit in the Rahimi60 case but subsequently disavowed any such reliance
during oral argument before the Court.61 It is error for the government and the
lower courts to rely on bigoted or discriminatory laws, or laws aimed at enemies
of the then-new Republic or persons or groups outside the polity, to justify a mod-
ern-day firearms regulation. These types of laws are not considered part of our
historical tradition for purposes of Bruen because the individuals who were the
subject of these laws were not considered part of “the people” who enjoyed any
constitutional rights. Indeed, as Justice Kavanaugh wrote separately to stress in
his Rahimi concurrence, “courts must exercise care” to not rely on “the history
that the Constitution left behind” through the ratification of either the original
Constitution or the Reconstruction Amendments, which “sought to reject the
Nation’s history of racial discrimination, not to backdoor incorporate racially dis-
criminatory and oppressive historical practices and laws into the Constitution.”62
58. Rhode v. Bonta, 2024 WL 374901, at *12 (S.D. Cal. Jan. 30, 2024).
59. Id. Other similar examples of courts rejecting such laws as analogues abound. See, e.g., United
States v. Harrison, 654 F. Supp. 3d 1191, 1216–17 (W.D. Okla. Feb. 3, 2023) (rejecting reliance on
analogues restricting the ability of slaves and Indians to carry firearms).
60. Rahimi, 61 F.4th 443, 457 (5th Cir. 2023); See Rahimi v. United States, Suppl. Br. for Appellee
the United States, United States v. Rahimi at 23, Doc. No. 109 (2022).
61. Trans. of Oral Argument, United States v. Rahimi, No. 22-915 at 7 (Nov. 7, 2023) (“We haven’t
invoked those laws at this stage of the proceedings because we think that they speak to a distinct
principle and the textual hook at that particular time those categories of people were viewed as being not
among the people protected by the Second Amendment in the first instance.”).
62. Rahimi, 144 S. Ct. at 1915 (Kavanaugh, J., concurring).
When they rely on bigoted laws to justify modern ones, governments impermissi-
bly resurrect prejudices long and firmly rejected by the American people.
4. Analogues must be sufficiently “well-established” and “representative”

A mere handful of purported analogues that existed (a) only for a short time or
(b) were not representative of the state of the law in most jurisdictions, also will
not suffice. Outliers do not serve to establish our “Nation’s historical tradition of
firearm regulation.”63
It is incorrect to say that a historical “tradition” can be based on the existence
of one or two historical analogues, even if they are relevantly similar in “how”
and “why” they burden Second Amendment rights. Bruen makes clear that any
analogues must be sufficiently “well-established and representative,”64 meaning
that they must affect substantial swaths of the population during their time in
force. This conclusion is bolstered by Bruen’s statement that “we will not stake
our interpretation of the Second Amendment upon a law in effect in a single
State, or a single city,”65 and its skepticism that three historical analogues could
evince a tradition.66 True, Bruen did not say whether there is a numerical thresh-
old for analogues to be considered “representative,” but the decision is clear that
one or two historical regulations are woefully insufficient.
Consider also Bruen’s discussion about territorial laws, which used relative
population as a probative metric. Bruen dismissed territorial restrictions because
they were too “localized.”67 In doing so, it discussed the “miniscule territorial
populations who would have lived under [these laws],” by analyzing census data
from territorial jurisdictions.68 And the Court concluded that “these western
restrictions were irrelevant to more than 99% of the American population,” there-
fore rejecting them as probative of any historical tradition.69 In short, Bruen
teaches that local laws enacted by a few cities, towns and villages cannot be con-
sidered evidence of a historical analogue because ordinances from a handful of
cities are not persuasive of an American tradition.70
Bruen further teaches that the 19th century laws of the Western Territories are
also not instructive as historical analogues because they are “most unlikely to
reflect ‘the origins and continuing significance of the Second Amendment.’”71
Bruen instructs that “we will not stake our interpretation on a handful of tempo-
rary territorial laws that were enacted nearly a century after the Second
63. Bruen, 597 U.S. at 17.

64. Id. at 30.
65. Id. at 67.
66. Id. at 46 (“[W]e doubt that three colonial regulations could suffice to show a tradition of public-
carry regulation.”).
67. Id. at 67.
68. Id.
69. Id.
70. Id. at 67-68 (quoting Heller, 554 U.S. at 632).
71. Id. at 67 (quoting Heller, 554 U.S. at 614).
Amendment’s adoption, governed less than 1% of the American population, and

also ‘contradic[t] the overwhelming weight’ of other, more contemporaneous his-
torical evidence.”72 Territorial laws are also disanalogous because these sorts of
laws were rarely subject to judicial scrutiny and were often temporary.73
Finally, these territorial restrictions deserve little weight because they were—
consistent with the transitory nature of territorial government—short lived. Some
were held unconstitutional shortly after passage.74 Others did not survive a
Territory’s admission to the Union as a State.75 “Thus, they appear more as pass-
ing regulatory efforts by not-yet-mature jurisdictions on the way to statehood,
rather than part of an enduring American tradition of state regulation.”76
5. The “Why” and the “How” Of A Proposed Analogue and the “Why” and
“How” of the Challenged Modern Law Must Match Up
Bruen instructs that before they may be considered, alleged historical analogue
laws must be either “distinctly” or “relevantly” similar to a challenged firearms
regulation. Whether analogues are evaluated under the “distinctly similar” or
“relevantly similar” criteria impacts the degree of fit required between the mod-
ern gun law and its alleged historical analogues.
If a modern gun law is meant to address “a general societal problem that has
persisted since the 18th century,” then “the lack of a distinctly similar historical
regulation addressing that problem is relevant evidence that the challenged regu-
lation is inconsistent with the Second Amendment.”77 Here, the level of similarity
required as between the modern gun law and any proposed historical analogues is
higher than in those situations where a modern gun law addresses “unprecedented
societal concerns or dramatic technological changes.”78 In the latter scenario, “a
more nuanced approach” may be allowed.79
Relying on Heller and McDonald, the Bruen Court identified two metrics to
determine whether a purported analogue is relevantly similar to the challenged
72. Id. (quoting Heller, 554 U.S. at 632).

73. Id. at 59; see Amicus Brief of FPC American Victory Fund, et al. at 25, NYSRPA v. Bruen, No.
20-843 (2022).
74. See In re Brickey, 70 P. 609, 609 (Idaho 1902) (holding unconstitutional a law “which prohibits
private persons from carrying deadly weapons within the limits or confines of any city, town, or village
in Idaho”).
75. See Law of Jan. 14, 1890, ch. 73, § 96, 1890 Wyo. Terr. Laws (1890 territorial law enacted upon
statehood prohibiting public carry only when combined with “intent, or avowed purpose, of injuring
[one’s] fellow-man”).
76. Bruen, 597 U.S. at 69.
77. Id. at 26. Humans committing violence against each other has been a societal problem going
back to the 18th century, and all the way back to at least when Cain killed Abel. Just some of the types of
general violence Americans experienced in the 18th century and which continue through the present
include: murder, mass violence, riots, rampant street crime, foreign invasions, insurrections, violence
against vulnerable places like churches, violence at places where constitutional rights were exercised,
and domestic violence.
78. Id. at 27.
79. Id.
regulation: “how and why the regulations burden a law-abiding citizen’s right to
armed self-defense.”80 Because individual self-defense is the central component
of the Second Amendment, “whether modern and historical regulations impose a
comparable burden on the right of armed self-defense and whether that burden is
comparably justified are ‘central’ considerations when engaging in an analogical
inquiry.”81 It is important to understand that before a proffered historical ana-
logue may be considered, both the “why” and the “how” must line up.
If the “whys” do not line up, then a proposed historical analogue may not be
used to prove that a modern gun control law arises from a longstanding tradition
of the country’s firearms regulation. A good example of such a disanalogous sce-
nario arose in Heller, when the District of Columbia sought to justify their hand-
gun ban by citing Founding-era laws limiting the quantity of highly-flammable
black powder that could be stored in homes.82 The Supreme Court rejected that
analogue because the “whys” did not line up: specifically, the purpose of that
Founding-era black powder storage law was to protect cities against fires burning
down large portions of the city, as happened in the Great London Fire of 1666.
Black powder storage laws had nothing to do with fighting crime.83 In short, the
“whys” behind these laws were far different.
For the “hows” to line up, the way the proffered historical analogue law was
deployed and enforced must be consistent with how the modern-day gun control
law is deployed and enforced. For example, if a modern statute imposes a lifelong
ban on arms possession for an individual who has threatened others, the “how”
would be different from an alleged analogue that did not disarm the individual,
but only required a surety bond to be posted.84 The burden on the right of armed
self-defense imposed by a lifetime ban is much different and much greater than
the mere posting of a bond.
6. A Lack of Historical Regulations Favors the Second Amendment

Simply put, the government needs an actual historical tradition of legal regula-
tion to establish a historical tradition of regulation. A history of non-regulation
cannot establish a historical tradition of regulation, which is what the government
needs to demonstrate.
To illustrate how one court concluded that a lack of historical evidence of regu-
lation did not preclude upholding an otherwise unconstitutional gun control law
80. Id. at 29. Whether the “relevantly similar” or the “distinctly similar” approach applies in a case
does not alter the mandate that historical analogues must be supplied by the government in order for the
government to justify a modern gun-control law.
81. Id.
82. See Heller, 554 U.S. at 631-32.
83. Id.
84. See, e.g., Rahimi, 144 S. Ct. at 1902 (finding significant the temporary nature of disarmaments
under the surety laws in holding those laws sufficiently analogous to the temporary disarmaments of
those presenting credible threats to the physical safety of others).
one should look to a recent Second Circuit opinion. One major error committed
by the Second Circuit in Antonyuk v. Chiumento was reasoning that “the absence
of a distinctly similar historical regulation in the presented record, though
undoubtedly relevant, can only prove so much. Legislatures past and present
have not generally legislated to their constitutional limits. Reasoning from histor-
ical silence is thus risky[.]”85
At the threshold, it is important to remember that the Second Amendment codi-
fied a pre-existing right, so in the absence of regulation, the right can be exercised
consistent with the text. Additionally, the Second Circuit’s explanation directly
contradicts Bruen. As already described, Bruen’s methodology compels courts to
first look to the plain text and then look to history for exceptions to what the plain
text covers.86 And it is in this context that Bruen says: “to the extent later history
contradicts what the text says, the text controls.”87 Period. This focus on the
Second Amendment’s text—which Bruen called an “unqualified command”88—
shows why later history cannot overcome Founding-era silence. In other words,
historical silence is always to be construed in favor of the Second Amendment.
For absent historical regulation, there is no affirmative basis for limiting the tex-
tual coverage of the right.
Because governmental inaction, by definition, cannot evince a tradition of reg-
ulation to limit the plain-text scope of the Amendment, in the presence of a lack
of regulation, the plain text controls. This conclusion is confirmed by Bruen’s
reasoning about what to do with historical ambiguity. In analyzing the English
history New York offered, the Bruen Court stated that it was “ambiguous at
best.”89 During that discussion, it also referenced Sir John Knight’s Case from
England, which dealt with the Statute of Northampton.90 And Bruen reasoned
that in the case of historical ambiguity—such as whether Sir John Knight’s Case
required an evil intent mens rea to satisfy the Statute of Northampton—“we will
favor the [interpretation] that is more consistent with the Second Amendment’s
85. Antonyuk v. Chiumento, 89 F.4th 271, 301 (2d Cir. 2023), cert. granted, judgment vacated sub
nom. Antonyuk v. James, ——S. Ct.——, 2024 WL 3259671 (Mem.) July 2, 2024.
86. Bruen, 597 U.S. at 24.
87. Id. at 36 (emphasis added).
88. Id. at 17, 24.
89. Id. at 39.
90. Id. at 43-44 n.11. Notably, Bruen also dismissed the Statute of Northampton as having “little
bearing on the Second Amendment adopted in 1791.” 597 U.S. at 41. First, the Court explained that it is
too old to inform the meaning of the Second Amendment at the Founding. See id. Second, the Court
noted that its prohibition on going or riding armed centered on large weapons used in combat, not on the
smaller medieval weapons (like daggers) most analogous to modern handguns, which were not yet
invented. See id. at 41–42. Third, the Court reasoned that the Statute of Northampton confirmed and
echoed the common law “affray” tradition that individuals cannot go armed with evil intent to terrify
others. See id. Fourth, Bruen held that by the Founding, this statute and American statutes modeled after
it were understood to bar carry in fairs, markets, and other public places only when individuals carried
arms to terrify others. See id. at 49–51.
command.”91 In other words, if the historical record is ambiguous, the tie goes to
the Second Amendment and favors the private (textual) individual right to keep
and bear arms.
7. Dicta cannot save the government from its burden of supplying actual
historical analogue laws
Since the 2008 decision in Heller, an oft-repeated argument in favor of uphold-
ing modern firearm restrictions is that the Supreme Court has already placed its
thumb on the scale in favor of such laws. Some courts and litigants quote as a
magic talisman the following language from Heller: “Although we do not under-
take an exhaustive historical analysis today of the full scope of the Second
Amendment, nothing in our opinion should be taken to cast doubt on longstand-
ing prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.”92 Nothing about this language should be taken as tip-
ping the scales in favor of whatever firearm restrictions may be at issue.
First, this language is clearly dicta, which by definition is not part of the bind-
ing holding of the Court.93 Nothing about this language spoke to the Court’s hold-
ing or the legal rationale (ratio decidendi) undergirding the holding that the
District of Columbia could not ban handguns because modern handguns were in
common use by Americans for lawful purposes. The Supreme Court itself humor-
ously wrote in a different context about “unnecessary” dicta: “Is the Court having
once written dicta calling a tomato a vegetable bound to deny that it is a fruit for-
ever after?”94
Second, at most, this language was only signaling that the Heller decision
should not be interpreted as deciding questions about who may possess firearms
or where a person may be allowed to legally carry a firearm in public. That is all.
Third, Heller referred to the examples of “longstanding” laws as only “presump-
tively lawful regulatory measures,” meaning that the presumptions are capable of
being rebutted.95 And fourth, it goes without saying that many contemporary fire-
arm restrictions are not “longstanding” but are of recent vintage.
Then-Judge Amy Coney Barrett understood these principles when she wrote
that she was “reluctant to place more weight on these passing references than the
Court itself did,” adding that “because [Heller] explicitly deferred analysis of this
issue, the scope of its assertion is unclear.”96
91. Id. at 44 n.11.

92. Heller, 554 U.S. 570, 626–27.
93. Cole Energy Dev. Co. v. Ingersoll-Rand Co., 8 F.3d 607, 609 (7th Cir. 1993).
94. Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013).
95. See Heller, 554 U.S. at 627 n.26.
96. Kanter v. Barr, 919 F.3d 437, 453 (7th Cir. 2019) (Barrett, J., dissenting), abrogated by Bruen,
597 U.S. 1 (2023).
Yet, we have seen multiple mostly pre-Bruen courts cite to Heller’s dicta as if
it resolved the constitutional questions presented in the case pending before
them.97 That is not appropriate. Nothing about Heller’s dicta excuses a lower
court from engaging in the legal spadework required by Heller and Bruen.
Bruen made clear that every restriction is subject to the following methodol-
ogy, and that obviously includes those argued to be longstanding: “When the
Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regula-
tion by demonstrating that it is consistent with the Nation’s historical tradition of
firearm regulation.”98 In Bruen, Justice Kavanaugh, joined by the Chief Justice,
repeated the Heller dicta about “presumptively lawful” restrictions,99 but added
nothing to suggest that any such restriction was not subject to the history and tra-
dition test.
IV. CONTEMPORARY TYPES OF PENDING SECOND AMENDMENT CHALLENGES AND THE
CONSTITUTIONAL QUESTIONS THEY PRESENT
Before discussing common errors committed by courts in specific cases, it is
useful to identify the kinds of cases currently being litigated. Each category of
cases will often turn on specific Supreme Court precedents (or lack thereof), and
thus the errors for cases within the category will often be similar. The major cate-
gories of cases, and the essential questions presented for each, are identified
below.100
A. Arms-Ban Laws
The laws at issue here concern what arms are protected by the Second
Amendment, and what arms are not. The most common arm-bans are state or
local laws prohibiting the sale, transfer, or possession of so-called “assault weap-
ons,” which are just ordinary, and very widely possessed, semiautomatic weap
97. See, e.g., United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010); United States v.
Rozier, 598 F.3d 768, 771 n.6 (11th Cir. 2010).
98. Bruen, 597 U.S. at 24.
99. Id. at 81 (Kavanaugh, J., concurring).
100. While this article will not dwell on those cases arising from many as applied and facial
challenges to the federal gun control statute defining who are “Prohibited Persons” under 18 U.S.C. 922
(g), it bears noting that the Supreme Court unanimously applied Bruen and found, 8-1, that the historical
tradition of firearms regulation supported temporarily disarming “individuals who pose a credible threat
to the physical safety of others.” Rahimi, 144 S. Ct. at 1898. As Justice Gorsuch, who joined the Court’s
opinions in both Bruen and Rahimi explained the latter opinion, “The Court reinforces the focus on text,
history, and tradition, following exactly the path we described in Bruen.” Rahimi, 144 S. Ct. at 1910
(Gorsuch, J., concurring).
ons, mostly rifles, such as AR-15 and AK platform rifles.101 The phrase “assault
weapon” is a political propaganda term with no real meaning.102 Many of these
bans were litigated before Bruen, but because the courts almost uniformly applied
some form of interest balancing, older decisions upholding these bans are no lon-
ger good law. At present, ten states, as well as a handful of local jurisdictions,
have such bans.103 Most states with “assault weapon” bans also prohibit so-
called “large capacity” magazines that hold more than a specified number of
rounds. Several states ban so-called “large capacity” magazines only, but not
“assault weapons.”104
There are other firearms bans as well, such as states that have adopted a “hand-
gun roster,” which allows only certain approved handguns to be sold and bans all
others.105 Non-firearm weapons are also often banned or restricted. These include
such items as certain knives, tasers, pepper spray, clubs, batons, metal knuckles,
and martial arts weapons such as nunchucks.106
The critical thing to understand for all these cases is that all bans on arms are
governed by the “in common use” test under Heller. Arms that are “in common
use” by Americans for lawful purposes today cannot be banned.107 Phrased some-
what differently, only “those weapons not typically possessed by law-abiding
citizens for lawful purposes”108 have the potential to be considered “dangerous
and unusual” and, by extension, have the potential to be unprotected by the
Second Amendment. Of course, if a weapon is “in common use” it is by definition
not “unusual.”
101. See, e.g., Garland v. Cargill, 602 U.S. 406, 429-430 (2024) (Sotomayor, J., dissenting)
(recognizing that AR-15 and AR-10 firearms are “commonly available, semiautomatic rifles”).
102. Mark W. Smith, “Assault Weapon” Bans: Unconstitutional Laws for a Made-Up Category of
Firearms, 43 HARV. J.L. & PUB. POL’Y 357, 363 (2020).
103. At the time of this writing, the states with bans on “assault weapons” are California,
Connecticut, Delaware, Hawaii (so-called “assault pistols”), Illinois, Maryland, Massachusetts, New
Jersey, New York, and Washington, plus the District of Columbia. Rebecca Goldman, Assault Weapons:
What Is Their Legality and Impact?, LEAGUE OF WOMEN VOTERS (Nov. 9, 2023), https://www.lwv.org/
blog/assault-weapons-what-their-legality-and-impact [https://perma.cc/3KG4-BW45].
104. See id.
105. States with handgun rosters include California, Maryland, and Massachusetts, plus the District
of Columbia. Design Safety Standards, GIFFORDS L. CTR. TO PREVENT GUN VIOLENCE, https://giffords.
org/lawcenter/gun-laws/policy-areas/child-consumer-safety/design-safety-standards/ (last visited Feb.
27, 2024) [https://perma.cc/8624-LWZZ]. A handgun is an “arm” within the meaning of the Second
Amendment. A so-called “handgun roster”, which bans handguns not approved of by the government, is
by definition an arms ban. That a roster leaves certain non-banned firearms available to individuals who
want to exercise their Second Amendment right does not make that law less of a ban, or save it from
unconstitutionality. In Heller, the Court found the District of Columbia’s handgun ban unconstitutional
notwithstanding the fact that the District argued that its residents could still acquire rifles and shotguns
under the challenged ban.
106. See, e.g., CAL. PENAL CODE § 22210.
107. See Heller, 554 U.S. at 624-25.
108. Id.
B. Restrictions Imposed on 18-20 Year Olds

There are laws on the books today that concern who can purchase, possess, or
carry firearms. They include licensing or permit laws for possession or carry,
such as the New York statute struck down in Bruen. “Permit to purchase” laws
also fall under this rubric. There are federal “disqualifiers” which bar dealers
from selling to prohibited persons such as individuals who are felons, who have
been involuntarily committed to a mental institution, who are non-resident aliens,
who have renounced their U.S. citizenship, or individuals convicted of misde-
meanor crimes of domestic violence, and others.109 Some states have additional
restrictions on who may purchase, possess, or carry firearms.110
Although Bruen speaks to whom may possess and carry firearms, it does not
address or resolve all issues concerning the subject. One such type of litigation
that has been particularly active are lawsuits involving bans or limitations on the
purchase or even possession of certain firearms by individuals who are over age
eighteen, the general age of majority, but who have not yet reached their twenty-
first birthday. Federal law prohibits licensed dealers from selling handguns to 18-
20 year-olds.111 Because Bruen does not address the issues relating to 18-20 year-
olds, courts grappling with these prohibitions or limitations must use Bruen’s his-
torical analogue methodology in deciding such cases.
C. Government-Mandated Gun Free Zones or Sensitive Places
The places where one can or cannot publicly carry firearms are also the subject
of current lawsuits. The Supreme Court in Heller noted, not as a holding but as an
aside, that “[a]lthough we do not undertake an exhaustive historical analysis
today of the full scope of the Second Amendment, nothing in our opinion should
be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings. . . .”112 Bruen revisited the topic
when New York attempted to characterize its “proper cause” requirement for
issuance of a public carry license as a “sensitive place” limitation. The Court
responded:
Although we have no occasion to comprehensively define “sensitive places” in

this case, we do think respondents err in their attempt to characterize New York’s
proper-cause requirement as a “sensitive-place” law. In their view, “sensitive
places” where the government may lawfully disarm law-abiding citizens
include all “places where people typically congregate and where law-enforce-
ment and other public-safety professionals are presumptively available.” . . . It
is true that people sometimes congregate in “sensitive places,” and it is
109. 18 U.S.C. § 922(g); 27 CFR § 478.21, 478.99.

110. See State Laws and Published Ordinances - Firearms (35th Edition), BUREAU OF ALCOHOL,
TOBACCO, FIREARMS AND EXPLOSIVES (Nov. 30, 2023), www.atf.gov/firearms/state-laws-and-published-
ordinances-firearms-35th-edition [https://perma.cc/9EVA-CNDG].
111. 18 U.S.C. § 922(b)(1).
112. Heller, 554 U.S. at 626.
likewise true that law enforcement professionals are usually presumptively

available in those locations. But expanding the category of “sensitive pla-
ces” simply to all places of public congregation that are not isolated from
law enforcement defines the category of “sensitive places” far too broadly.
Respondents’ argument would in effect exempt cities from the Second
Amendment and would eviscerate the general right to publicly carry arms
for self-defense that we discuss in detail below.113
The statement in Heller about schools and government buildings says nothing
about which restrictions on firearms in schools and government buildings may be
valid or which historical rationales support such restrictions. While Bruen adds a
bit more with its discussion of legislative assemblies, courthouses, and polling
places, it does not identify the historical tradition of regulation that would justify
these restrictions nor the principles underlying that tradition. Lower courts must
therefore engage in analogical reasoning in cases involving so-called “sensitive
places” laws under the standard announced in Bruen.
D. Licensing Regulations
Second Amendment challenges to licensing regimes post-Bruen tend to
address three common issues: (a) the licensing official is granted discretion to
decide whether the license should be issued114; (b) there are long delays in proc-
essing license applications115; or (c) the financial cost associated with procuring a
license is excessive.116
In Bruen, the Supreme Court flagged all three of these issues as likely being
problematic and unconstitutional. The Court noted that “shall issue” licensing
regimes, which “often require applicants to undergo a background check or pass
a firearms safety course, are designed to ensure only that those bearing arms in
the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”117 They are thus
consistent with the Second Amendment, to the extent they “contain only ‘narrow,
objective, and definite standards’ guiding licensing officials” rather than discre-
tionary standards that require the “exercise of judgment” on the part of the licens-
ing officer.118
Likewise, the Court also left open the door to constitutional challenges where
licensing regimes became overly costly or burdensome.119 Justice Kavanaugh’s
113. Bruen, 597 U.S. at 30-31.

114. Antonyuk, 89 F.4th at 300.
115. See Response to Order to Show Cause at 1, White v. Cox, 1:23-cv-12031 (D. Mass. Dec. 18,
2023).
116. Koons v. Platkin, 673 F. Supp. 3d 515, 579 (D.N.J. 2023), appeal filed, No. 23-1900 (3d Cir.
June 9, 2023).
117. Bruen, 597 U.S. at 38 n.9.
118. Id.
119. I discussed both the Supreme Court’s and Justice Kavanaugh’s concurrence as they pertain to
the importance of objective licensing criteria in an earlier article: Mark W. Smith, NYSRPA v. Bruen: A
Supreme Court Victory for the Right to Keep and Bear Arms—and a Strong Rebuke to “Inferior
Courts”, 24 HARV. J.L. PUB. POL’Y PER CURIUM 1, 5 (2022).
concurrence in Bruen, which was joined by Chief Justice Roberts, further demon-
strates the Court’s clear disapproval of the freewheeling inquisitions that states
like New York, New Jersey, and California now seek to launch.120 Justice
Kavanaugh doubled down on the majority’s rejection of discretionary licensing
regimes, writing that New York’s regime was “constitutionally problematic
because it grants open-ended discretion to licensing officials and authorizes
licenses only for those applicants who can show some special need apart from
self-defense.”121 Justice Kavanaugh deemed problematic—as did the majority
opinion in an important footnote122—any grant of “open-ended discretion to
licensing officials,” regardless of its connection to a good-cause requirement.
Justice Kavanaugh explained that “the 6 States including New York potentially
affected by today’s decision may continue to require licenses for carrying hand-
guns for self-defense so long as those States employ objective licensing require-
ments like those used by the 43 shall-issue States.”123 He also kept the door wide
open to as-applied challenges to state regimes that operate as anything but shall-
issue in practice—regardless of how they look on paper. Where excessive costs
of time and money are required to be expended by a concealed carry applicant, a
shall-issue scheme would be ripe for an as-applied challenge.124
E. Gun and Ammunition Tax Challenges
Finally, various jurisdictions have attempted to impose special taxes on the
firearms or ammunition a citizen buys. Such taxes are blatantly unconstitutional.
The 1983 Supreme Court case Minneapolis Star Tribune Co. v. Minnesota
Commissioner of Revenue recognized that you cannot single out fundamental
rights for special taxation, no matter how negligible the tax.125 That decision was
consistent with the Supreme Court’s 1966 decision in Harper v. Virginia Board
of Elections, which held a $1.50 poll tax unconstitutional.126 California recently
passed a tax law that is vulnerable to a similar challenge.127
120. Bruen, 597 U.S. at 79 (Kavanaugh, J., concurring). After Bruen was handed down, New York
passed a new background check law that required applicants to disclose their social media information.
N.Y. Penal L. § 400.00(1)(o)(iv).
121. Bruen, 597 U.S. at 79 (Kavanaugh, J., concurring) (emphasis added).
122. Id. at 38 n.9.
123. Id. at 79 (Kavanaugh, J., concurring) (emphasis added).
124. See also Bruen at 597 U.S. at 38 n.9 (“[B]ecause any permitting scheme can be put toward
abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example,
lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right
to public carry.”).
125. Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 581 (1983)
(distinguishing between generally applicable sales tax and “special tax that applies only to certain
publications protected by the First Amendment[,]” calling it “facially discriminatory” even though it
would have been less than the sales tax).
126. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966).
127. Gun Violence Prevention and School Safety Act, Cal. Assembly B. 28, Stats. 2023, Ch. 231.
V. COMMON MISTAKES MADE BY LOWER COURTS AFTER HELLER AND BRUEN

A. Common mistakes made in arms ban cases
1. Heller’s “in common use” test governs in all arms ban cases and cannot be
ignored, changed, or circumvented
Heller remains good law after Bruen.128 The Bruen decision merely built upon
the historical work done by Heller and reaffirmed the basic text-first and history-
second methodology applied in that case. As Bruen said, “[t]he test that we set
forth in Heller and apply today requires courts to assess whether modern firearms
regulations are consistent with the Second Amendment’s text and historical
understanding.”129
In Heller, the Court decided whether handguns fell within the scope of the
Second Amendment’s protection of “arms,” and thus could not be banned. To do
that, the Heller Court applied the same methodology later explicitly spelled out in
Bruen to decide the appropriate constitutional test. In the process, the Heller
Court expressly addressed what types of weapons are protected by the Second
Amendment, and what types are not. It relied on its opinion in the 1939 Miller
case130 to arrive at the constitutional test:
We may as well consider at this point (for we will have to consider eventually)
what types of weapons Miller permits. Read in isolation, Miller’s phrase “part
of ordinary military equipment” could mean that only those weapons useful in
warfare are protected.131
The Court rejected that interpretation, stating that:
Miller’s “ordinary military equipment” language must be read in tandem with

what comes after: “[O]rdinarily when called for [militia] service [able-bodied]
men were expected to appear bearing arms supplied by themselves and of the
kind in common use at the time.” [citing Miller, 307 U.S. at 179]. The tradi-
tional militia was formed from a pool of men bringing arms “in common use
at the time” for lawful purposes like self-defense. “In the colonial and revolu-
tionary war era, [small-arms] weapons used by militiamen and weapons used
in defense of person and home were one and the same.” [citation omitted]132
The methodology in Heller started with evaluating the plain text of the Second
Amendment, as described in Part I above. As noted, Heller defined the terms
128. Mark W. Smith, What Part of” In Common Use” Don’t You Understand?: How Courts Have
Defied Heller in Arms-Ban Cases—Again 41 HARV. J.L. & PUB. POL’Y PER Curium 1, 4 (2023), journals.
law.harvard.edu/jlpp/what-part-of-in-common-use-dont-you-understand-how-courts-have-defied-heller-in-
arms-ban-cases-again-mark-w-smith.
130. United States v. Miller, 307 U.S. 174 (1939).
131. Heller, 554 U.S. at 624 (emphasis added).
132. Id. at 624–25 (emphasis added).
“right of the people,” “keep,” “bear,” and “arms.”133 The plain text of the Second
Amendment is clear—it protects the right of Americans to “keep and bear arms.”
Bruen stated that “When the Second Amendment’s plain text covers an individu-
al’s conduct, the Constitution presumptively protects that conduct.”134 Heller
phrased the presumption in less general terms when describing what arms can or
cannot be banned: “the Second Amendment extends, prima facie, to all instru-
ments that constitute bearable arms, even those that were not in existence at the
time of the founding.”135
The Heller Court reviewed the historical record and identified a legal proposi-
tion that could fairly support a ban on possession of a type of arm: “the historical
tradition prohibiting the carrying of ‘dangerous and unusual weapons.’”136 The
Heller Court concluded that the government had the power to ban an arm only if
it was “dangerous and unusual.” That meant, however, that if an arm was “in
common use” by Americans for lawful purposes, then it could not be banned;137
the categories of “dangerous and unusual” and “in common use” are mutually
exclusive. Heller established the rule of decision or test for arms-ban cases: the
test is that arms which are “in common use” are protected by the Second
Amendment and cannot be banned. Full stop. No further analysis is necessary,
and it is improper for lower courts to substitute a test that differs from Heller’s
“in common use” test.
Thus, speaking of handguns, Heller said, “[w]hatever the reason, handguns are
the most popular weapon chosen by Americans for self-defense in the home, and
a complete prohibition of their use is invalid.”138 This is the governing principle
or test for all arms ban cases going forward: if an arm is in common use, it cannot
be banned without violating the Second Amendment.
Heller did all the historical work required under Bruen when it comes to arms
ban cases. Legal challenges to modern-day laws banning the possession or sale of
particular arms or the components that affect the functionality of arms are directly
controlled by Heller’s “in common use” test. That is the legal test in a challenge
to an arms ban law and there is nothing for the lower courts to do except apply
that test to the facts at issue. It is only in other, non-ban cases, or in cases not gov-
erned by Bruen’s holdings regarding discretionary licensing, that the historical
methodology described in Bruen must be followed to assess putative historical
analogues.
Yet, some courts have refused to apply the “in common use” constitutional
test, and instead have formulated their own tests, or revised Heller’s test, to deter-
mine whether a particular arm or class of arms is protected under the Second
Amendment. See Parts A.2 through A.6., infra.
133. Id at 579, 581-86.

134. Bruen, 597 U.S. at 24.
135. Heller, 554 U.S. at 582.
136. Id. at 627.
137. See id. at 624–25.
138. Id. at 629.
2. The burden is on the government to prove that an arm is unusual and not “in
common use”
A party challenging an arms ban is not required to prove that the firearms sub-
ject to the ban are in common use by Americans for lawful purposes. There is a
presumption that small arms are covered by the Second Amendment. In describ-
ing what arms are presumptively protected by that amendment, Heller held that
the “Second Amendment extends, prima facie, to all instruments that constitute
bearable arms. . . .”139
Since it is presumed that all bearable arms are protected by the Second
Amendment, that presumption stands unless rebutted. It is not the job of the indi-
vidual defending firearms rights to anticipate what arguments the government
might make in rebuttal and introduce evidence as part of its affirmative case to
counter the government’s rebuttal. Just as a defendant in a criminal case enjoys
the legal benefits of the presumption of innocence, so too does a challenge to a
gun control law enjoy the presumption of being correct. Thus, if the government
wants to rebut the presumption of protection for bearable arms, it has the burden
of proof to show that the arms in question are not “in common use.” That is, no
doubt, why Heller stated the test for unprotected weapons in the negative: the
“Second Amendment does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes.”140 If the government wants to take
away Second Amendment protection for a bearable arm or a class of bearable
arms, it must demonstrate that those weapons are “not typically possessed by
law-abiding citizens for lawful purposes.”141 In contrast, like a criminal defend-
ant, a Second Amendment plaintiff need only stare out the window at birds flying
by while the government works to meet its own burden. If the government fails,
the Second Amendment rights are vindicated, the government loses, and the gun
control law falls.
If an individual desires to possess a particular arm (such as an AR-platform
semi-automatic rifle), he need only show that the arm is presumptively protected
because it is an “arm.” The burden then shifts to the government to defend its law
by demonstrating that the arm or rifle is not “in common use” or, put another
way, is in the category of “dangerous and unusual” arms that may be banned
(which is comparable to the historical tradition step of Bruen’s methodology in
cases not involving arms bans). If the government fails to show the rifle is both
dangerous and unusual – that is a conjunctive and not a disjunctive test – the law
banning it is unconstitutional.
Unfortunately, the Supreme Court’s clear guidance has not prevented several
courts from improperly shifting the burden to the non-governmental party. For
example, a federal district court case regarding “assault weapons” found that
under Heller and Bruen, “Plaintiffs have the burden of making the initial showing
139. Id. at 582.

140. Id. at 625 (emphasis added).
141. Id.
that they are seeking to possess or carry firearms that are ‘“in common use” today
for self-defense’ and are typically possessed by law-abiding citizens for that pur-
pose.”142 The error with that statement is that neither Bruen nor Heller placed the
burden of proof on the plaintiffs in that regard, and the quoted language states
instead that “Nor does any party dispute that handguns are weapons ‘in common
use’ today for self-defense.”143 There is nothing at all regarding burden of proof.
In fact, the quoted language from Bruen proves the point being made here. There,
the Court said that because no one disputed that handguns are in common use, it
followed that handguns are protected—not presumptively protected as a matter
of plain text, but absolutely protected as a matter of text and history under the
binding test established by Heller.
Yet another district court in an arms ban case was similarly confused.
Discussing Bruen, it stated that “the burden is on the plaintiff, in the first instance,
to show that the challenged law implicates conduct covered by the plain text of
the Second Amendment.”144 While that may be true in cases employing the
Bruen methodology and not involving arms bans, it has no applicability in arms
ban cases, which are governed by Heller. But then the court’s discussion of the
burden goes seriously off the rails: “To determine whether the conduct at issue is
covered by the plain text of the Second Amendment, a court must determine
whether the weapon in question is a ‘bearable arm’ that is ‘in common use today
for self-defense.’”145 In other words, the court requires that a plaintiff must show
that a weapon is “in common use today for self-defense.” That requirement is
directly contrary to Heller, which creates a presumption of protection for all bear-
able arms. To defeat that presumption, it is the government’s burden to show that
the banned arms are not “in common use” for lawful purposes, including self-
defense.
3. The Test Is Not “In Common Use for Self-Defense”

Even when the “in common use” test is applied, it has still been the subject of
other mistakes. Lower courts have engaged in some sleight of hand by redefining
“in common use” for all lawful purposes to mean only “in common use for self-
defense.”
As Heller made clear, whether an arm is in common use is determined by
whether it is commonly possessed by law-abiding citizens for lawful purposes.146
But some lower courts have interpreted Heller’s test to require proof of common
use for self-defense; in other words, that the type of firearm subject to a
142. Nat’l Ass’n for Gun Rights. v. Lamont, 685 F. Supp. 3d 63, 88 (D. Conn. 2023) (citing Bruen,
597 U.S. at 32), appeal pending, No. 23-1162 (2d Cir. Aug. 16, 2023).
144. Oregon Firearms Federation, Inc. v. Kotek, 682 F. Supp. 3d 874, 888 (D. Oregon, 2023), appeal
pending, Azzopardi v. Rosenblum, No. 23-35479 (9th Cir. July 17, 2023).
145. Id. at 888 (citing Bruen, 597 U.S. at 12, 19).
146. Heller, 554 U.S. at 625.
challenged ban, for example, semi-automatic rifles, have often been actually fired
in self-defense.147 But that is not the test.
National Association for Gun Rights v. Lamont is illustrative.148 The district
court in that case opined, without any supporting citation, that “a weapon must
be both possessed for the purpose of and actually used for self-defense in order
to fall within the Second Amendment’s protection, meaning that if it is either
unusual for it to be possessed for self-defense or if it is used in a way that makes
it particularly dangerous, the weapon does not fall within the Second
Amendment’s purview.”149 Now, how can it be determined if a weapon is
“used in such a way that makes it particularly dangerous”? (The court lamented
what it viewed as the lack of good statistics about “assault weapon” use, while
making such use a centerpiece of its reasoning.)
But the “particularly dangerous” test cannot be squared with the common use
test of Heller, Caetano, or Bruen. It was apparently invented by the district court
itself, in its rejection of the “dangerous and unusual” test. The district court did
not like the Supreme Court’s conjunctive “dangerous and unusual” test, believing
that it should be disjunctive; that is, “dangerous or unusual.” Accordingly, the
court “read[] the term ‘unusual’ as implying that there must be some level of
lethality or capacity for injury beyond societally accepted norms that makes it
especially dangerous. . . .”150 The court criticized the district court of Delaware
for finding that it was constrained by precedent to apply the terms conjunctively,
and noted that the district court relied on only two cases: Bruen and Justice
Alito’s concurrence in Caetano.151 To justify its revision of Heller’s “dangerous
and unusual” test, the National Association for Gun Rights court relied on a dis-
trict court case from the Northern District of Indiana that concluded that “a
weapon can be banned if it is ‘uncommon or unusually dangerous.’”152
Oregon Firearms Federation v. Kotek153 was even more emphatic that the bur-
den is on plaintiffs to prove that a firearm or magazine is “in common use for
self-defense,” in the sense of actually being discharged in numerous self-defense
confrontations. That district court opined that, “[u]nder Bruen, a court must con-
sider whether a regulated firearm or firearm accessory is ‘in common use today
for self-defense.’”154 Accordingly, this court received evidence at trial regarding
147. See, e.g., Lamont, 685 F. Supp. 3d at 97. Attempts to rewrite the Heller test even made their
way into the Rahimi oral argument. There, the Solicitor General sought to define the test as “when
you’re looking at whether a weapon is dangerous and unusual, you should ask is this the kind of weapon
that a law-abiding, responsible citizen would need for self-defense.” Trans. of Oral Argument at 30:11-
17, United States v. Rahimi, No. 22-915 (Nov. 7, 2023).
148. Lamont, 685 F. Supp. 3d at 90-91.
149. Id.
150. Id.
151. Id. (citing Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec. (“DSSA”),
664 F. Supp. 3d 584 (D. Del. 2023)).
152. Id. (quoting United States v. Reyna, 2022 WL 17714376, at *3 (N.D. Ind. Dec. 15, 2022)).
153. Or. Firearms Fed’n v. Kotek, 682 F. Supp. 3d at 895.
154. Id.
the use of LCMs [large-capacity magazines] in self-defense.”155 According to the

court, “Plaintiffs offered only limited anecdotal evidence of LCMs actually being
used in self-defense,” whereas “Defendants presented substantial and highly
credible evidence at trial showing that ordinary civilians in self-defense situations
rarely fire more than ten rounds.”
When Heller found that handguns were not just in common use, but rather “the
quintessential self-defense weapon”156 it did not base that conclusion on any evi-
dence about how often handguns were actually fired, brandished, or otherwise
deployed in actual, active self-defense events.157 Rather, it simply listed some of
the reasons why Americans “may prefer” handguns.158 In Bruen, the Court picked
up where Heller left off. The Supreme Court stated that the Second Amendment
protects the right to “possess and carry weapons in case of confrontation.”159 The
right encompasses the right to be “armed and ready for offensive or defensive
action in a case of conflict with another person.”160 The right thus encompasses
the right to “‘keep’ firearms . . . at the ready for self-defense . . . beyond moments
of actual confrontation.”161 This means that to be constitutionally protected, it is
enough that the arms in question are commonly possessed for any and all lawful
purposes including, but not limited to, self-defense.
The weapon that rests on your nightstand may never be fired or brandished, but
because it is at the ready should the need for self-defense arise, it most certainly
is “in use.” This is no different than a courtroom bailiff or police officer who
“uses” his firearm when he carries it in the holster or a member of the NYPD car-
rying an AR-style rifle while patrolling New York City’s Times Square. The
mere possession of an arm is enough to establish its use, and lower courts are
wrong to require a party challenging a modern-day firearms restriction to make a
statistical showing of how frequently a challenged arm is actually fired in self-
defense.
Indeed, many items are considered “in use” or “in common use” even though
they are merely ready to be used or otherwise deployed. Fire extinguishers are “in
common use” in schools and office buildings, even though they may never
155. Id. Several courts, citing Bruen, state that the test is whether the firearm is “in common use for
self-defense.” But that is not the test. Heller, which set the common use standard, never stated that to be
protected a weapon must be in common use “for self-defense.” That is why so many courts erroneously
rely on the phrase in Bruen, at 32, regarding “‘in common use’ today for self-defense.” But Bruen was
not a case about what arms are protected, as Heller was, and Bruen was not purporting to provide a new
standard about what arms are protected. Instead, the quote at 32, after noting that petitioners Koch and
Nash are part of “the people,” merely observed that “Nor does any party dispute that handguns are
weapons “in common use” today for self-defense.” Koch and Nash had both stated that they wanted a
carry license for purposes of self-defense. Bruen, 597 U.S. at 15–16. The Court was simply noting
matters in the case that were not disputed. It was not establishing a novel constitutional test.
156. Heller, 554 U.S. 629.
157. Heller was decided on a motion to dismiss record. See Heller 554 U.S. at 576.
158. Heller, 554 U.S. at 629.
159. Id. at 592.
160. Id. at 584.
161. Bruen, 597 U.S. at 32.
actually be discharged to put out a fire. A security alarm is “in use” although it
may never be triggered. Umbrellas are in common use, even if they are merely
carried or possessed when it is not actually raining. Air bags are in common use
in automobiles, despite the fact that most are never deployed. So are smoke detec-
tors, even if there is no fire. Life jackets are in common use on ships and boats,
even when passengers are not actually required to wear them. Various forms of
insurance are in use even if no claim is ever made upon those policies. Likewise,
people use seat belts every day in motor vehicles even though they are rarely in
auto accidents. Handguns and rifles possessed by Americans—whether in the
home or carried in public—are “in common use” despite the fact that they may
never be or have never been fired in an act of self-defense.
A firearm is being “used” if it makes a person “ready” for a situation in which
they could need to fire the gun defensively.162 Of course, such situations (like
most life and death situations) are thankfully rare. Nevertheless, even when a fire-
arm is actually employed in a self-defense situation, over 80% of the time it is not
fired at all, but merely displayed or a verbal threat is made that the gun would be
used.163 The Second Amendment’s protection is not limited to the right to possess
only a firearm that will be absolutely necessary under unusual, life-threatening
conditions; it protects the right to possess all bearable arms, including firearms in
common use for any and all lawful purposes.164
4. The language from Bruen regarding technological changes and societal

concerns is not a legal test
Some lower courts have attempted to circumvent Heller’s “in common use” test
in arms ban cases by seizing upon a single sentence in Bruen that states that “[w]
hile the historical analogies here and in Heller are relatively simple to draw, other
cases implicating unprecedented societal concerns or dramatic technological
162. Heller indicated that “self-defense” was but a single example of lawful use of a firearm for
purposes of gauging common use, not that it was the only use for that purpose. See Heller, 554 U.S.
at 624. See also Mark W. Smith, “‘In Common Use’ Encompasses a Broad Range of Lawful
Activities Beyond Firing a Gun.” AmmoLand Shooting Sports News, Jan. 9, 2024, www.ammoland.
com/2024/01/in-common-use-encompasses-a-broad-range-of-lawful-activities-beyond-firing-a-gun-
video/#axzz8QvkLZxvR.
163. William English, 2021 National Firearms Survey: Updated Analysis Including Types of
Firearms Owned 14, (May 13, 2022), https://dx.doi.org/10.2139/ssrn.4109494.
164. In a dissent, Judge Lawrence VanDyke addressed the issue of “rarity” and the Second
Amendment when he wrote, “The reality is that essentially everything the Second Amendment is about
is rare, for which we all should be very grateful. Government tyranny of the sort to be met by force of
arms has been, in the short history of our country, fortunately rare. The actual need for any particular
person to use her firearm to defend herself is, again, extremely rare—most of us will thankfully never
need to use a gun to defend ourselves during our entire life. And in those rare instances where a firearm
is used in self-defense, the amount of ammunition needed is generally very little—oftentimes none at
all. It is certainly true that most of us will use exactly zero rounds of ammunition to defend ourselves—
ever. So if the Second Amendment protects anything, it is our right to be prepared for dangers that,
thankfully, very rarely materialize.” Duncan v. Bonta, 19 F.4th 1087, 1167 (9th Cir. 2021) (VanDyke, J.,
dissenting), vacated, 49 F.4th 1228 (Mem.) (9th Cir. 2022).
changes may require a more nuanced approach.”165 Gun-control advocates and a

number of lower courts have seized on this language to essentially gut the holdings
in Heller and Bruen. It is important to note at the outset, therefore, what this lan-
guage does and does not say.
First, by its very terms, that statement does not apply to issues covered by
Heller or Bruen. The analogies in those cases were “relatively simple to draw,”
and the statement applies only to “other cases.”166 More importantly, the histori-
cal analogies in those cases have already been examined and decided by the
Court in Heller and Bruen. That work has already been done. The lower courts
should not be re-examining historical analogies to come up with some test that is
different from what the Supreme Court has already decided.167 Thus, that state-
ment cannot be used to undermine the “in common use” test in Heller for arms
ban cases. Nor can the statement be used to undermine the findings in Bruen that
discretionary licensing systems are unconstitutional, that no “special need” must
be shown to obtain a license to own or carry a firearm, that individuals who have
only “ordinary” self-defense needs are entitled to own and carry a gun, and that
the right to do so extends outside the home. In cases concerning these issues, “un-
precedented societal concerns” or “dramatic technological changes” have no role
to play whatsoever.
Second, the language from Bruen regarding technological changes and societal
concerns is not a legal test that governs decisions either in arms-ban cases or in
non-arms-ban cases. It is part of a description of the methodology that Bruen lays
out for lower courts in deciding “other cases” not governed by Heller’s “in com-
mon use” test or by Bruen’s holdings regarding restrictive, discretionary licensing
schemes. This language is irrelevant in arms ban cases because the Supreme
Court has already evaluated the historical tradition of regulation and established
that the dangerous and unusual test is the test to be applied to determine the con-
stitutionality of arms bans.
Third, invoking the words “unprecedented societal concerns” or “dramatic
technological changes” is not a “get out of jail free” card that allows courts to jet-
tison the basic Bruen methodology, abandon careful use of historical analogue
laws, or engage in “interest balancing” by weighing the perceived benefits of a
current law against its effects on the right to keep and bear arms. The Court was
simply saying that sometimes analogical reasoning may need to be a little more
nuanced when technology and social conditions have changed since the founding.
For example, proponents of New York’s may-issue regime contended that colo-
nial laws restricting the carrying of dangerous and unusual weapons extended to
165. Bruen, 597 U.S. at 27. Much of the discussion in this section can also be found in Mark W.
Smith, What Part Of “In Common Use” Don’t You Understand? How Courts Have Defied Heller In
Arms-Ban Cases – Again, HARVARD J.L. & PUB. POL’Y, https://journals.law.harvard.edu/jlpp/what-part-
of-in-common-use-dont-you-understand-how-courts-have-defied-heller-in-arms-ban-cases-again-mark-
w-smith/ [https://perma.cc/N6HS-CKAS].
166. Bruen, 597 U.S. at 27.
167. See, e.g., Lamont, 685 F. Supp. 3d at 88.
handguns. Even if that were the case, the Court reasoned, that would not support
restricting the carrying of handguns today because handguns “are unquestionably
in common use today.”168 In every case, straightforward or more nuanced, the
Bruen methodology requires applying founding principles to modern circumstan-
ces; in no instance can the founding principles be disregarded.
Even though this language does not apply in arm ban cases, gun-control propo-
nents claim that improvements in firearms technology, such as the development
of semiautomatic weapons, are “dramatic technological changes” or that mass
shootings are an example of “unprecedented societal concerns” that did not exist
at the Founding. Some lower courts erroneously buy into these arguments, con-
ducting their own analyses to formulate new tests to determine what arms are
constitutionally protected and cannot be banned. These courts have found that
arms that are “exceptionally dangerous” or “particularly dangerous”—such as so-
called “assault weapons”—may be banned,169 even though they are unquestion-
ably “in common use.”170
But the Supreme Court has been aware of such contentions throughout the de-
velopment of its Second Amendment jurisprudence.171 Briefing in Heller pointed
out the alleged exceptionally dangerous nature of handguns, the rise of mass
shootings, and similar concerns about violence and public safety. Ironically, when
Heller was briefed in 2008, the District of Columbia and its amici argued that
handguns were particularly dangerous and lethal, while there were few, if any,
mentions of rifles such as “assault weapons” being “especially dangerous.”172 In
Heller, the District argued that its handgun ban “do[es] not disarm the District’s
citizens, who may still possess operational rifles and shotguns.”173 It further argued
that “the [D.C.] Council . . . adopted a focused statute that continues to allow pri-
vate home possession of shotguns and rifles, which some gun rights’ proponents
contend are actually the weapons of choice for home defense.”174 Today, gun ban
advocates argue that so-called “assault weapons”—in reality, semi-automatic
rifles—are unusually dangerous and must be banned.
Arguments about “dramatic technological changes” cannot affect the “in com-
mon use” test mandated by Heller. The “in common use” test looks at arms that
are in common use by Americans now, and that necessarily includes any modern
168. Bruen, 597 U.S. at 47.

169. See, e.g., DSSA, 664 F. Supp. 3d at 599; Or. Firearms Fed’n, 682 F. Supp. 3d at 888; Lamont,
685 F. Supp. 3d at 91.
170. See, e.g., Bevis v. City of Naperville, 85 F.4th 1175,1187 (7th Cir. 2023); Capen v. Campbell,
2023 WL 8851005 (D. Mass. Dec. 21, 2023), appeal pending, No. 24-1061 (1st Cir. Jan. 17, 2024).
171. For a fuller discussion, see Mark W. Smith, What Part Of “In Common Use” Don’t You
Understand? How Courts Have Defied Heller In Arms-Ban Cases – Again, 41 HARV. J. L. & PUB. POL’Y
(2023), available at https://journals.law.harvard.edu/jlpp/what-part-of-in-common-use-dont-you-understand-
how-courts-have-defied-heller-in-arms-ban-cases-again-mark-w-smith/ [https://perma.cc/BS9T-JZNL].
172. Br. of Pet’rs at 5, District of Columbia v. Heller, No. 07-290 (2008).
173. Id. at 11.
174. Id. at 54.
or new technology, which those firearms use.175 Even though technology may
have changed or improved over time, any form of modern firearm technology
that is currently “in common use” is constitutionally protected.176 Thus, the rela-
tive dangerousness of a weapon is irrelevant if it is commonly used for lawful
purposes.
Likewise, assertions that mass shootings constitute an “unprecedented societal
concern” that did not exist at the Founding are similarly misplaced. Mass killings
were commonplace at the Founding, and the Founders response was not to
restrict the Second Amendment rights of the law abiding.177 In fact, where vio-
lence was a real risk, the Founders often required the colonists to bring their own
weapons.178
Post-Bruen decisions that seek to circumvent Heller’s “in common use” test by
ignoring Heller and then smuggling in dangerousness arguments have resurrected
the discredited “interest balancing tests” rejected in Heller, expressly abrogated
in Bruen, and denied any relevance in Rahimi.
5. In arms ban cases, “in common use” is the test and lower courts err when they
ignore that test and then engage in the Bruen historical methodology anew
Another way in which lower courts have circumvented the “in common use”
test is by improperly redoing the full Bruen methodology themselves and substi-
tuting their own results in lieu of the Supreme Court’s “in common use” test
175. See Heller, 554 U.S. at 582 (“the Second Amendment extends, prima facie, to all instruments
that constitute bearable arms, even those that were not in existence at the time of the founding.”).
176. For arms ban questions, the Second Amendment protects weapons that are in common use
today. That necessarily implies that technological changes in arms between the Founding and now,
dramatic or otherwise, cannot be used to justify bans on arms that are now in common use. In common
use is the only constitutional test to apply in arms case cases. And the “dramatic technological changes”
and “unprecedented societal concerns” language does not even apply to arms ban cases. Bruen added
that language only for “other cases” where the analogies were not as straightforward as in Heller (arms
ban case) and Bruen.
177. See, e.g., the Enoch Brown school house massacre “Enoch Brown Incident.” National
Memorial to Fallen Educators, Mar. 15 2019, available at nthfmemorial.org/enoch-brown-incident
[https://perma.cc/VS4M-2VWJ]; see also the Boston Massacre mass shooting (Boston Massacre,
USHISTORY.ORG, available at. www.ushistory.org/declaration/related/massacre.html [https://perma.cc/
8L4A-8KYZ].). Of course the colonial experience with constant Indian attacks was well understood and
recognized to the point that the Declaration of Independence referred to their method of mass and brutal
attacks as being “merciless” and “savage[].” Mark W. Smith, Wolves and Grizzlies and Bears, Oh My!:
Exploring Historical and Contemporary Contexts for Justice Kennedy’s Founding Era Application of
the Personal Right to Bear Arms, 46 S.I.U. LAW R. 467 (2022).
178. See generally Benjamin Boyd, Take Your Guns to Church: The Second Amendment and Church
Autonomy, 8 LIBERTY UNIV. L. REV. 653, 697–99 (2014) (collecting colonial- and Founding-era
historical law for requiring firearms at church services).
reached by Heller.179 Often, they use the “unprecedented societal concerns” and
“dramatic technological change” as a gateway.
One particularly clear example of this error is the Delaware State Sportsmen’s
Ass’n case from the District of Delaware.180 The case considered that state’s newly
enacted ban on “assault weapons” and “large capacity magazines.” The plaintiffs,
relying on Heller as providing the constitutional rule of decision, correctly argued
that “once a weapon is found to be ‘in common use’ it cannot be regulated, and no
historical analysis is necessary.”181 The district court responded:
I disagree. As the Supreme Court made clear in Bruen, “the standard for apply-
ing the Second Amendment is as follows: When the Second Amendment’s
plain text covers an individual’s conduct, the Constitution presumptively pro-
tects that conduct. The government must then justify its regulation by demon-
strating that it is consistent with the Nation’s historical tradition of firearm
regulation.”182
That would be a true statement if a court was analyzing a non-ban firearms reg-
ulation ab initio. But the Delaware court was not analyzing a Second
Amendment question anew. The issue in that litigation was whether so-called
“assault weapons” and “large capacity magazines” are protected arms under the
Second Amendment. Heller had already done the historical analysis to determine
what kinds of arms are protected by the Second Amendment and had determined
that the test is whether they are “in common use.”183 Lower courts are not permit-
ted to do their own historical analysis, and then come up with a test that is differ-
ent from the Heller test. The only question presented in an arms-ban case is
whether the arms in question meet the “in common use” test. The Delaware dis-
trict court continued:
If the standard were as Plaintiffs propose, then Bruen need not have proceeded
beyond the first step of the analysis. Instead, however, after concluding that the
Second Amendment’s plain text “presumptively guarantee[d]” the plaintiffs a
179. This subject is considered at considerably greater length and detail in two articles by this
author. The most detailed is Smith, Mark W., What Part of ‘In Common Use’ Don’t You Understand?:
How Courts Have Defied Heller in Arms-ban Cases — Again (June 17, 2023), available at SSRN:
https://ssrn.com/abstract=4483206 or http://dx.doi.org/10.2139/ssrn.4483206 [https://perma.cc/8WG6-
X3VA]. A more condensed version is Mark W. Smith, What Part of ‘In Common Use’ Don’t You
Understand?: How Courts Have Defied Heller in Arms-ban Cases — Again, 41 HARV. J. L. & PUB.
POL’Y (2023), available at https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2023/09/
Smith-In-Common-Use-vf1-MM.pdf [https://perma.cc/7XG3-NUPK]. The discussion in this section
draws on the SSRN version.
180. See, e.g., DSSA, 664 F. Supp. 3d at 597.
181. Id.
182. Id. (citation omitted, emphasis added).
183. See Heller, 554 U.S. at 627.
right to bear arms in public for self-defense, the Supreme Court turned to the
question of historical tradition. Thus, so do I.184
That is simply incorrect. The reason Bruen proceeded to examine the historical
tradition is because the question in Bruen (a) did not involve an arms ban, and (b)
could not be resolved by applying Heller’s rule of decision. The question in
Bruen, for which it performed a historical review, was whether New York’s
highly restrictive licensing system for the public carry of firearms was justified
by historical analogues. That and related issues had never been decided by the
Supreme Court using the required historical methodology, whereas the question
of what arms are protected had already been addressed and settled in Heller.
The district court’s own analysis, substituted for the test articulated in Heller,
took the court right back into the interest balancing rejected in Bruen. “Defendants
argue that the instant regulations implicate ‘unprecedented societal concerns’ and
‘dramatic technological changes.’ I agree.”185 The court then adopts defendants’
view of the history of semiautomatic technology, arguing that “assault long guns
and LCMs represent recent advances in technology,” because they didn’t come
into widespread use until the early part of the twentieth century.186 The opinion
goes on to address “unprecedented societal concerns,” allegedly due to the rise in
public mass shootings over the past four decades. The district court concluded, “I
find that Defendants have sufficiently established that assault long guns and LCMs
implicate dramatic technological change and unprecedented societal concerns for
public safety.”187 It found that Defendants had demonstrated that “assault rifles
and LCMs are exceptionally dangerous.”188
The kinds of evidence the court cites is a dead giveaway that it is engaged in in-
terest balancing: a study showing the use of “assault weapons” in a quarter of
mass shootings; the involvement of LCMs in over half of those shootings (not
particularly surprising given that LCMs represent about half of the magazines in
circulation); assertions by so-called experts that “assault rifles and LCMs are
exceptionally dangerous” and that they have “military” features that allegedly
“increase their lethality” such as pistol grips, barrel shrouds, detachable maga-
zines, and “high velocity” rounds.189 The court also engages in a sensationalistic
listing of the purported lethal effects of “assault rifle bullets” that, frankly, strains
credulity.190 The opinion further contends that assault rifles pose a particularly
184. DSSA, 664 F. Supp. 3d at 597.

185. Id. at 598.
186. Id.
187. Id. at 599–600.
188. Id. at 599.
189. Id.
190. DSSA, 664 F. Supp. 3d at 599–600.
high risk to law enforcement officers because their body armor cannot withstand
these “high velocity” bullets.191
These claims are merely interest-balancing arguments smuggled back in and
dressed up as “dramatic technological change” and “unprecedented societal con-
cerns.” But those changes and concerns were never presented by Bruen as form-
ing a separate test or rule of decision, and they provide no excuse for a court to
engage in interest balancing instead of employing the Heller “in common use”
test.192
6. Courts are not justified in ignoring or altering the “in common use” test sim-
ply because they disagree with it, or in short-circuiting it by importing empirical
tests into the “plain text” inquiry
Sometimes the lower courts simply reject the “in common use” test outright.
They claim that a court cannot rely on a mere count of the numbers of weapons
already possessed to establish common use. Among other things, they claim that
the numbers are meaningless because such a test is “circular” and therefore, in a
common formulation, “absurd.” In the recent decision by the Massachusetts dis-
trict court in Capen v. Campbell, the court stated:
Plaintiffs contend that if a weapon is popular—that is, if thousands or even

millions of copies of that weapon have been sold—then, by definition, it is “in
common use” and is protected by the Second Amendment. Put simply, in their
view, if a firearm is currently in “common use,” its sale and possession are pro-
tected and no further analysis is required.193
The court then opined:
Whatever the meaning of “common use,” that contention cannot be correct.

Such a rule would lead to a host of absurd results. Among other things, the
constitutionality of the regulation of different firearms would ebb and flow
with their sales receipts. Weapons that unquestionably would have been con-
sidered within the ambit of the Second Amendment at the time of ratification
(such as a smooth-bore, muzzle-loading musket) would lose their protection
because of their relative rarity today. Conversely, an entirely novel weapon
that achieved rapid popularity could be rendered beyond the reach of regula-
tion if innovation and sales outstripped legislation.194
191. Id. at 600. Supporters of the District of Columbia’s handgun ban in Heller, summarized above,
condemned handguns because they can allegedly fire cartridges that can pierce body armor, thereby
jeopardizing police officers. Heller, Amicus Br. of Violence Policy Center et al. at 18.
192. Other cases erroneously conducting a Bruen-style historical review, to the exclusion of the in
common use test, include Hartford v. Ferguson, 676 F. Supp. 3d 897, 903 (W.D. Wash. 2023); Bevis,
657 F. Supp. 3d at 1190-91; Herrera v. Raoul, 670 F. Supp. 3d 665, 675 (N.D. Ill. 2023).
193. Capen, 2023 WL 8851005, at *8 (D. Mass. Dec. 21, 2023).
194. Id. (emphasis added).
There are several things to note about this passage. First, there is nothing
“absurd” about looking at the numerical prevalence of types of arms to determine
if they are in common use.195 It is the most natural way of answering that ques-
tion. It was the approach used by the author of Bruen, Justice Thomas, in dissent-
ing from the denial of certiorari in Friedman v. Highland Park, when he reasoned
that “under our precedents” the fact that “roughly five million Americans” owned
“AR-style semiautomatic rifles” for overwhelmingly lawful was “all that is
needed for citizens to have a right under the Second Amendment to keep such
weapons.”196 Furthermore, it is not the case that weapons within the ambit of the
Second Amendment at the time of ratification, such as smooth-bore muzzle-
loaders would lose their protection “because of their relative rarity today.”197 The
test is not relative rarity, but absolute numbers. Muzzleloading firearms, whether
smooth-bore or rifled, are owned in large numbers in the United States today.
Their popularity is attested by the fact that all 50 states have muzzleloader hunt-
ing seasons.198 The concern that “an entirely novel weapon that achieved rapid
popularity could be rendered beyond the reach of regulation if innovation and
sales outstripped legislation” is itself very telling of the court’s mindset.199 Why
run the risk of allowing the American people, through the marketplace, to deter-
mine what weapons they find useful or desirable, as opposed to legislatures and
courts telling them what they cannot have? Our Founders rightly deferred to the
American people to decide what firearms they themselves found valuable for
defense and other lawful purposes; they did not trust political elites—wearing
black robes or otherwise—to make those choices for them.
In Heller itself, Justice Breyer accused the Supreme Court of circularity in
adopting the “in common use” test. Justice Breyer wrote:
On the majority’s reasoning, if tomorrow someone invents a particularly use-

ful, highly dangerous self-defense weapon, Congress and the States had better
ban it immediately, for once it becomes popular Congress will no longer pos-
sess the constitutional authority to do so. In essence, the majority determines
what regulations are permissible by looking to see what existing regulations
permit. There is no basis for believing that the Framers intended such circular
reasoning.200
195. Another case that approves the term “absurd” for the “in common use” test, and calls it
“circular,” is Bevis, 85 F.4th at 1190 (quoting Friedman v. City of Highland Park, 784 F.3d 406, 409
(7th Cir. 2015)).
196. Friedman v. City of Highland Park, Ill., 136 S. Ct. 447, 449 (Thomas, J., and Scalia, J.,
dissenting from denial of certiorari).
197. Capen, 2023 WL 8851005, at *8 (D. Mass. Dec. 21, 2023).
198. Muzzleloader Regulations Chart, M UZZLE -LOADERS . COM (Oct. 14, 2021), https://muzzle-
loaders.com/blogs/muzzleloader-regulations/muzzleloader-regulations-chart [https://perma.cc/V7ZA-
GVQM].
199. Capen, 2023 WL 8851005, at *8.
200. Heller, 554 U.S. at 721 (Breyer, J., dissenting).
The Heller majority rejected the dissent’s argument. The Supreme Court affir-
matively adopted the “in common use” test despite the argument by Justice
Breyer that it was circular. The Court was clearly correct in doing so. Far from a
circular inquiry, asking the government to demonstrate that a banned arm is not
in common use today is an objective inquiry that is also administrable for courts.
7. It is improper to import substantive, empirical tests into the initial threshold

“plain text” inquiry
Another circumvention of the “in common use” test is on display in the
Seventh Circuit case of Bevis v. City of Naperville. The Seventh Circuit treated
the “in common use” test as a nullity. It instead invented its own test, holding that
the ordinary semiautomatic firearms that Illinois banned, and that Illinois labeled
“assault weapons,” are “military weapons” that “lie outside the class of Arms to
which the individual right applies.”201 The Seventh Circuit did this by importing
a substantive, empirical test into step one of the Bruen analysis, which should be
purely a linguistic analysis as to whether the weapons in question are “arms” as
defined in Heller.202 It then used that “military vs. civilian” test to claim that the
banned semiautomatic weapons do not qualify for Second Amendment protection
because they are “military,” rather than applying Heller’s “in common use” test.
The error is immediately apparent from the Seventh Circuit’s description of its
own method of analysis: “We begin by looking at the ‘plain text’ of the Second
Amendment to see whether the assault weapons and large-capacity magazines . . .
fall within the scope of the ‘Arms’ that individual persons are entitled to keep
and bear.”203 That is wrong out of the box. The plain text (or, more properly in
arms ban cases, whether the item is a “bearable arm” and thus prima facie pro-
tected) is consulted to see if its terms, as a matter of language, cover the conduct
in question; namely possession of the kinds of arms Illinois has banned. It is only
after deciding whether possession of rifles is covered by the plain text (or, again,
whether they are bearable arms), that it might have to be determined whether the
arms are of a kind “that individual persons are entitled to keep and bear.” In cases
of first impression, one might look to historical analogues supplied by the govern-
ment. But this is not a case of first impression. Whether rifles are protected under
the Second Amendment is determined by the “in common use” test of Heller,
which the Seventh Circuit does not rely on to decide the case, but instead
criticizes as “slippery” and (as noted above) “absurd.”204 It prefers to smuggle a
substantive test into the plain text analysis.
201. Bevis, 85 F.4th at 1203.

202. Although Bevis was an arms-ban case, and thus should have been analyzed solely under Heller,
the court apparently believed that it needed to apply the “plain text” threshold textual inquiry under
Bruen. But whether the initial threshold textual inquiry is “plain text” under Bruen or “bearable arms”
under Heller, the initial threshold inquiry is always linguistic and textual; there is no place at this
threshold textual inquiry for introducing substantive tests, empirical facts, or historical analogue laws.
203. Bevis, 85 F.4th at 1192 (emphasis added).
204. Id. at 1190, 1198.
The Seventh Circuit states, quoting Heller, that the term “arms” was “applied,
then as now, to weapons that were not specifically designed for military use and
were not employed in a military capacity.”205 From that, it concludes that only
certain “non-military” weapons, not military weapons, are protected by the
Second Amendment. Is the Seventh Circuit really contending that only weapons
not specifically designed for military use, and not so employed, are protected?
The quoted statement does not mean that the term “arms” is limited to non-mili-
tary weapons, but rather that the term includes non-military weapons as well as
military weapons. It would be strange indeed if an amendment designed to help
secure a well-regulated militia protected only weapons not useful for militia pur-
poses. Indeed, Heller explains that the founding-era militia was understood to be
“useful in repelling invasions and suppressing insurrections.”206 The notion that
such a body could be prevented from accessing arms useful in those very activ-
ities is nonsensical.
The Bevis court admits that “In discussing whether these assault weapons and
large-capacity magazines are Arms protected by the Second Amendment, we have
(as instructed by Bruen) confined ourselves to textual considerations.”207 First of
all, Heller, not Bruen, governs in arms-ban cases. Second, the court has not con-
fined itself to textual considerations. It has imported an empirical finding that
“assault weapons” are “much more like machineguns and military-grade weaponry
than they are like . . . firearms that are used for individual self-defense.”208
The Seventh Circuit’s “military vs. civilian” position is directly contradicted
by both Miller and Heller, which recognized that militia members brought with
them their own weapons that they already owned for private purposes, and then
used them for military (militia) purposes. In fact, the Seventh Circuit even quoted
Heller to the effect that “[t]he traditional militia was formed from a pool of men
bringing arms ‘in common use at the time’ for lawful purposes like self-
defense.”209 In other words, the weapons used by militia members for military
purposes, and by citizens for lawful purposes, were one and the same. The court’s
language about “not specifically designed for military use” and “not employed in
a military capacity” has no foundation in fact or history, and is directly refuted by
history, Heller itself, and elementary logic.
B. Discretionary Licensing Regimes
Another category of litigation that has become muddled by common errors in
some lower courts involves the standards that apply to licensing regimes. The dis-
tinction between may-issue and shall-issue licensing has become extremely im-
portant following Bruen, which signaled that licensing schemes may be
205. Id. at 1193.

206. Heller, 554 U.S. at 597.
207. Bevis, 85 F.4th at 1198.
208. Id. at 1195.
209. Id. at 1194 (quoting Heller, 554 U.S. at 624).
constitutional, provided that the application process is neither expensive nor

delayed, and the criteria for the permit is objective, i.e., does not permit any dis-
cretion by a government agent. While Bruen struck down a may-issue licensing
regime in New York that used subjective standards to determine whether some-
one could be issued a permit to own a firearm,210 states continue to create these
regimes in more covert ways. New York passed new licensing laws just after
Bruen that still gave vast discretion to licensing officials in determining who is
worthy of possessing a license.
New York law already contained a “good moral character” requirement,211 but
the State redefined it after Bruen to require “having the essential character, tem-
perament and judgment necessary to be entrusted with a weapon and to use it
only in a manner that does not endanger oneself or others.”212 A number of things
could apparently disqualify someone from meeting that requirement, including a
negative impression during an in-person meeting between the applicant and the
licensing officer. Furthermore, New York required the applicant to submit contact
information for the applicant’s current spouse or domestic partner, adult children,
and four other references for the licensing officer to contact.213 It also asked for a
list of social media accounts the applicant had used in the past three years, and
“such other information required by the licensing officer that is reasonably
necessary.”214
The onerous nature of these requirements underscore that some States will do
whatever it takes to circumvent the teaching that there is a “general right to pub-
licly carry arms for self-defense.”215 After all, it was New York Governor Kathy
Hochul who declared that “I’m prepared to go back to muskets.”216 These subjec-
tive licensing criteria are exactly what Bruen condemned. Discretionary regimes
are so pernicious because their subjective criteria are far too open to bias and
interpretation. The meaning of “special need” and “good moral character” can
easily be subjectively interpreted against the applicant. Additionally, discretion-
ary licensing regimes may become so restrictive that permits are granted simply
on the basis of politics and favoritism.
As historian and scholar Stephen Halbrook has written: “In January 1956,
Martin Luther King’s house was bombed. Rev. King said he was receiving threats
‘continuously’ when he sought permission for gun licenses from an Alabama
sheriff for himself and two other clergymen helping to protect him and his family.
210. Bruen, 597 U.S. at 70-71.

211. Id. at 11.
212. N. Y. Penal Law § 400.00(1)(b).
213. 2022 N.Y. Sess. Laws ch. 371 (1)(b).
214. Id. § 400.00(1)(f).
215. Bruen, 597 U.S. at 31, 33.
216. Video, Audio, and Rush Transcript: Governor Hochul Issues Response to Supreme Court
Ruling Striking Down New York’s Concealed Carry Restriction Governor Kathy Hochul, www.
governor.ny.gov/news/video-audio-rush-transcript-governor-hochul-issues-response-supreme-court-
ruling-striking-down#:�:text=And%20I%27m%20sorry%20this,to%20go%20back%20to%20muskets
[https://perma.cc/Q22Z-47ZD].
On page 3B of the February 4, 1956 Montgomery Advertiser the headline read,

‘Negro Leader Fails to Get Pistol Permit.’ Alabama’s then-may-issue regime,
which gave discretion to officials to issue a license to carry a pistol if the appli-
cant had ‘good reason to fear an injury’ or ‘other proper reason,’ left Reverend
King defenseless in the face of the innumerable threats against him and his fam-
ily.”217 In denying the license, King felt like the sheriff was essentially saying
that “you are at the disposal of the hoodlums.”218
Subjective licensing regimes trace their pedigree to racist episodes such as this,
and Bruen instructed that they are impermissible.219 Justice Kavanaugh’s concur-
rence (joined by Chief Justice Roberts) drives this point home. Justice Kavanaugh
lambasted New York’s licensing regime for being “constitutionally problematic
because it grants open-ended discretion to licensing officials and authorizes
licenses only for those applicants who can show some special need apart from
self-defense.”220 Just like the majority opinion, Justice Kavanaugh criticized the
“open-ended discretion” that is the result of may-issue licensing regimes.221
Furthermore, he wrote that “the 6 States including New York potentially affected
by today’s decision may continue to require licenses for carrying handguns for
self-defense so long as those States employ objective licensing requirements like
those used by the 43 shall-issue States.”222 While he allowed the possibility of as-
applied challenges to shall-issue licensing regimes, Justice Kavanaugh made clear
that subjective licensing criteria were proscribed by the Second Amendment.
Applying similar reasoning to New York City’s post-Bruen licensing regime,
federal district court Judge John Cronan struck it down. He correctly found under
Bruen that the licensing regime implicates a citizen’s right to keep and bear
arms.223 This is obvious, given that a licensing official in New York City can pre-
vent a citizen from owning or carrying a firearm on the flimsiest of grounds. But
the City must prove that its licensing criteria have a longstanding tradition in our
nation’s history. Just like with any may-issue licensing regimes, though, the City
fails miserably at this task. Judge Cronan notes that New York City does not
seem to “appreciate” that it has a burden to show historical analogues to its dis-
cretionary licensing criteria.224 The City confusedly says that “plaintiff’s memo-
randum is devoid of citations to source material statutes, historical analysis or
historical legal precedent to support the assertion that governments did not
217. Mark W. Smith, NYSRPA v. Bruen: A Supreme Court Victory For The Right To Keep And
Bear Arms—And A Strong Rebuke To “Inferior Courts, HARV. J. OF LAW & PUB. POL’Y PER CURIAM 4–
5 (2022).
218. Donald T. Ferron, Notes on MIA Executive Board Meeting (Feb. 2, 1956). https://kinginstitute.
stanford.edu/king-papers/documents/notes-mia-executive-board-meeting-donald-t-ferron-1 [https://perma.
cc/3D89-8W67].
219. See Bruen, 597 U.S. at 60-61. See also NICHOLAS JOHNSON, NEGROES AND THE GUN: THE
BLACK TRADITION OF ARMS at 262 (2014).
220. Bruen, 597 U.S. at 79 (Kavanaugh, J., concurring).
221. Id.
222. Id. at 80.
223. Srour v. New York City, 699 F. Supp. 3d 258, 268 (S.D.N.Y. Oct. 24, 2023).
224. Id. at 267 n.6.
require individuals to seek permission to keep and bear arms.”225 Of course, this
flips the script. It is the government’s burden to produce historical analogues.226
Judge Cronan found New York City’s licensing regime to be facially unconstitu-
tional in every application.227
Discretionary regimes took another blow in Judge Renée Marie Bumb’s opin-
ion in Koons v. Platkin, which challenged New Jersey’s post-Bruen may-issue
licensing regime.228 The judge noted that New Jersey’s licensing regime often
serves to harass law-abiding gun owners, just as all may-issue licensing regimes
do: it “is aimed primarily—not at those who unlawfully possess firearms—but at
law-abiding, responsible citizens who satisfy detailed background and training
requirements and whom the State seeks to prevent from carrying a firearm in pub-
lic for self-defense.”229 Judge Bumb goes on forcefully to note that “the State dis-
agrees with Bruen, but it cannot disobey the Supreme Court by declaring most of
New Jersey off limits for law-abiding citizens who have the constitutional right
to armed self-defense.”230
The proliferation of may-issue regimes since Bruen are less than transparent
attempts to flout the decision. As a result, Judge Bumb took aim at the require-
ment that applicants for a permit in New Jersey must interview in-person.231 In-
person interviews introduce an unlawful amount of discretion in the permitting
process, and there is little historical evidence showing that they form part of the
tradition of firearm regulation. Judge Bumb remarked that the in-person interview
was “unduly burdensome” and reasoned that “[t]he State has not justified this
requirement or explained how, after receiving the endorsers’ certifications, inter-
viewing them in-person (or even how that is achieved in a nonburdensome way)
will aid the licensing authority’s review of a Carry Permit application.”232 An
interview will not provide a licensing authority any more information regarding
whether a person can possess a firearm, but it could give rise to arbitrary (or dis-
criminatory) reasons to deny them.
All this goes to show that discretionary licensing regimes are expressly forbid-
den by Bruen: whether it’s an in-person interview, social media information, or
something similar, such factors cannot be part of an application process. The
Second Amendment is not a benefit for a few “virtuous” or supposedly morally
superior individuals, but rather a right that belongs to all Americans.233
225. Id.
226. Bruen, 597 U.S. at 24; see also Part II, infra, (collecting statements in Bruen about burden on
government to provide historical analogues).
227. Srour, 699 F. Supp. 3d at 258.
228. See Koons, 673 F. Supp. 3d at 543.
229. Id.
230. Id. at 544.
231. Id. at 573–74.
232. Id. at 574.
233. The Court in Rahimi soundly and unanimously rejected the Government’s argument that
Mr. Rahimi could “be disarmed simply because he is not responsible,” noting that such a qualification
was “vague,” that its effect was “unclear,” and that its provenance was unmoored from the precedents
C. Mistakes in Cases Challenging Gun Restrictions Imposed on Young Adults

Courts adjudicating whether 18-20-year-olds have a right to firearms also com-
mit several common errors.234 The first is quite basic. When the Framers wanted
to put age limits in the Constitution, they knew how to do so. For example,
Article II, Section 1, Clause 5 decrees that individuals running for President must
be at least 35 years old.235 The Second Amendment contains no similar age limi-
tation. There can thus be no doubt that the plain text of the Second Amendment
includes and protects 18-to-20-year-olds.
Another particularly pernicious error is holding that 19th century Reconstruction-
era evidence is more probative than Founding-era evidence. The Eleventh Circuit
made this mistake in its now-vacated opinion in National Rifle Association v.
Bondi.236 Other courts to address the issue have reached the correct conclusion,
which is that any historical tradition of firearms regulation must be grounded in the
Founding era.237 As the District of Minnesota held in Worth v. Harrington, “Bondi
declined to follow rather clear signs that the Supreme Court favors 1791 as the date
for determining the historical snapshot of ‘the people’ whose understanding of the
Second Amendment matters.”238 For all the reasons discussed elsewhere in this arti-
cle, 1791 should control the 18-to-20-year-old issue as well.
One of the most common errors is assuming that 18-to-20-year-olds were cate-
gorically entitled to no Second Amendment rights.239 For starters, this is mani-
festly false. When males aged 18 to 45 were required to serve in the militia at the
Founding, they were also required to acquire guns, and there were zero age-based
restrictions specifically directed toward their right to acquire firearms or what they
could do with those guns.240 Regardless, even if we assume that 18-to-20-year-olds
did not have Second Amendment rights at the Founding because of their minority
status for certain purposes, that would not support such regulation today because
18-to-20-year-olds are now considered adults.241
Another common error is holding that Heller’s use of the phrase “political
community” to describe people who have Second Amendment rights means that
that Heller and Bruen both drew on and established. Rahimi, 44 S. Ct. at 1903; see also id. at 1930
(Thomas, J., dissenting).
234. See, e.g., Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317 (11th Cir. 2023), reh’g en banc granted, op.
vacated, 72 F.4th 1346 (11th Cir. 2023).
235. U.S. CONST., art. II, cl. 5.
236. Bondi, 61 F.4th at 1322.
237. See, e.g., Worth v. Harrington, 666 F. Supp. 3d 902, 914 (D. Minn. 2023).
238. Worth, 666 F. Supp. 3d at 919.
239. See, e.g., Br. of Appellant in Reese v. BATFE, No. 23-30033 (5th Cir. Jan. 30, 2024).
240. Milita Act of 1792, Art. I (May 8, 1792), CONSTITUTION.ORG, https://www.constitution.org/1-
Activism/mil/mil_act_1792.htm [https://perma.cc/D4DQ-UUM3].
241. Although the age of majority was 21 at the founding, that does not mean that those under 21
lacked all legal rights. “While the full age of majority was 21, that only mattered for specific activities,”
and “constitutional rights were not generally tied to an age of majority, as the First and Fourth
Amendments applied to minors at the Founding as they do today.” Hirschfeld v. Bureau of Alcohol,
Tobacco & Explosives, 5 F.4th 407, 435 (4th Cir. 2021), vacated as moot 14 F.4th 322 (4th Cir. 2022).
“the people” is restricted to voters.242 This cannot be correct because Heller used
“national community” and “Americans” as synonyms.243 All these terms refer to
the polity—i.e., the people that make up the nation, and that includes all
Americans. Because it is undisputed that 18-to-20-year-olds are Americans, not
to mention that they have a right to vote under the 26th Amendment, they are
within “the people” whom the Second Amendment protects.
The Third Circuit did not fall into any of these traps when it recently held that
18-to-20-year-olds are fully protected by the Second Amendment.244 It focused
on the correct historical period and then held that the Second Amendment’s refer-
ence to “the people” covers all adult Americans, which includes 18-to-20-year-
olds today.245 The Third Circuit persuasively reasoned that 18-to-20-year-olds
are among “the people” for numerous other constitutional rights, such as the right
to vote, the right to speak freely, and the right to be free from unreasonable gov-
ernment searches and seizures.246 Thus, they are also within the ambit of the
Second Amendment’s protection.
D. Government-Mandated Gun Free Zones a/k/a “Sensitive Places”
Although the Supreme Court has not provided definitive guidance on “sensi-
tive places,” the following framework should assist in considering this issue. At
the outset, the phrase “sensitive place” is simply a euphemism for a government-
mandated “gun free zone”, i.e., a geographic area where government deprives by
law its citizens the right and ability to defend themselves with arms. In reality,
merely slapping a label on a geographic location does not make it “sensitive” –
whatever that vague word might mean.247
To determine the appropriate limits on those places that the government can
mandate to be gun free, we must identify the essential characteristics of a “sensi-
tive place”—as that concept was used by the Supreme Court in Bruen. This
242. Vincent v. Garland, 80 F.4th 1197, 1203 (10th Cir. 2023), cert. granted, judgment vacated,
——S. Ct.——, 2024 WL 3259668 (Mem.) (July 2, 2024).
243. See Heller, 554 U.S. at 580–81.
244. See Lara v. Comm’r Pa. State Police, 91 F.4th 122, 132 (3d Cir. 2024).
245. Id. at 127.
246. Id. at 131.
247. Take, for example, when Times Square was labelled a “sensitive place.” Aaron Katersky, New
York City’s Times Square Officially Becomes Gun-free Zone, ABC NEWS (Oct. 11, 2022), abcnews.
go.com/US/york-citys-times-square-officially-gun-free-zone/story?id=91332223 [https://perma.cc/
45K4-VRCU]. So, too was the New York City subway system with its 472 stations spread along 665
miles of track. See Matt Katz, New York City rolls out new gun-free zones, NPR (Sep. 2, 2022), https://
www.npr.org/2022/09/02/1120692933/new-york-city-rolls-out-new-gun-free-zones [https://perma.cc/
ZVW7-W34Z]; Riding the subway, MTA (Apr. 3, 2024), https://new.mta.info/guides/riding-the-subway
[https://perma.cc/82D6-9U8V]. That legislative declaration that the New York City subway system was
a “gun free zone” worked out so poorly that New York’s governor Kathy Hochul had to deploy the
National Guard to the subways in an attempt to thwart violent crime. Anthony Izaguirre, New York will
send National Guard to subways after a string of violent crimes, AP N EWS (Mar. 6, 2024), https://
apnews.com/article/new-york-city-subway-national-guard-crime-f046ecaac79601f6113efa8a0c8f25c7
[https://perma.cc/GR37-4JFS].
requires understanding historically what made “legislative assemblies, polling

places, and courthouses” sensitive at the Founding.248
Recently, some have defined sensitive places as those where “core government
functions” take place.249 This principle, presumably, was drawn from the list of
places that Bruen itself gave: polling places, courthouses, and legislatures.
However, the principle is nothing more than blind guesswork, and has no relation
to the purposes of the Second Amendment.
There are two problems with the “core government functions” principle. First,
it is far too manipulable and far too subjective. The government will have little to
no trouble defining every public space, whether big or small, as “sensitive”
because of supposed “core government functions” that occur there. Churches, for
example, are places people go to practice their First Amendment rights: therefore
they must be sensitive.250 Post offices could be considered sensitive because
delivering the mail could be a core government function given that elected offi-
cials use the mail to communicate with constituents and to raise campaign dona-
tions.251 Parks might provide a core government function because citizens stay
healthier when they can exercise in the parks and, thus, they are less likely to
become ill as often, which saves government-paid health care costs. When it
comes to interpreting constitutional rights, we must grant the government as little
latitude as possible in doing so; this test grants too much.
On the other hand, the “core government functions” test is underinclusive. The
case of airports demonstrates this well: there are no discernible government activ-
ities that take place at airports. At the same time, however, no one would claim
that firearms should be permitted in the sterile areas of airports past the area
where security screening takes place, or carried onto commercial airplanes. The
“core government function” theory fails to explain why firearms are not permitted
in such areas.252
Another argument being advanced to justify designating an area as a “sensitive
place” is the “collateral damage” test. The thinking here is that it is constitution-
ally permissible to designate as “gun free zones” locations where the misuse of a
firearm could cause death or injury to a significant number of innocent civilians.
While airports would arguably pass muster under the collateral damage test, it
leaves too much to the discretion of the courts, which is what Bruen forbids. It
also fails to explain why courthouses, legislative assemblies and polling places
248. Bruen, 597 U.S. at 30.

249. Trans. of Oral Argument at 62-63 in Koons v. Platkin, 23-1900 (3rd Cir. Feb. 5, 2024).
250. Darrell A. H. Miller, Constitutional Conflict and Sensitive Places, 28 WM. & MARY BILL RTS.
J. 459, 467 (2019), available at https://scholarship.law.wm.edu/wmborj/vol28/iss2/9 [https://perma.cc/
4YGH-N7YV].
251. Id. at 461.
252. Airports were not considered sensitive places where firearms could be banned until a series of
hijackings led the government to set up metal detectors there to protect travelers. See generally Stephen
P. Halbrook, Firearms, the Fourth Amendment, and Air Carrier Security, 52 J. OF AIR LAW &
COMMERCE 585 (1987).
are sensitive places and not other areas where the public congregates and inno-
cents could be harmed.
Another rationale that has been offered in support of sensitive place laws, and
drawn from Heller’s dictum that schools are a sensitive place, is that of “vulnera-
ble people.” In the school example, the argument goes that because children are a
population particularly vulnerable to violent attacks, armed individuals should be
kept as far away from them as possible. The Second Circuit endorsed this ration-
ale when it recognized what it called “this Nation’s tradition of firearm regulation
in locations where vulnerable populations are present,” which includes “the tradi-
tion of prohibiting firearms in places frequented by children.”253 However, such
logic is perverse and should be rejected because it puts the people the Second
Amendment was supposed to protect directly in harm’s way. Where vulnerable
people are present, the presence of law-abiding citizens with firearms is even
more necessary to protect them from threats.
Another justification that has been offered in favor of sensitive place laws is
that places where people exercise their constitutional rights need to be free of fire-
arms so that people can exercise their rights without fear. This justification has no
limiting principle, however—constitutional rights are exercised practically every-
where one goes. Whether it’s in their home, on the sidewalk, or on public transit,
citizens are exercising their enumerated and unenumerated rights everywhere.
Declaring an area sensitive on such a basis would lead to an entire jurisdiction
being sensitive. Take Manhattan, for example—there is nowhere in Manhattan
that constitutional rights aren’t being exercised. Yet, as Bruen told us, “there is
no historical basis for New York to effectively declare the island of Manhattan a
‘sensitive place.’”254 This rationale, then, must be rejected as being far too broad
and untethered from the text of the Second Amendment.
None of these proffered tests suffice to explain the commonality that histori-
cally united polling places, legislatures, and courthouses in Early America. The
answer is the presence of government-provided, comprehensive and armed secu-
rity.255 It is only when the government ensures with arms and more the safety of
those it requires to be disarmed can a venue or location be deemed a “sensitive
place.” If there is no such security and the government can make no such guaran-
tee, then it has no constitutional authority to declare a sensitive place and, by
extensive, take away Americans’ right to bear arms for self-defense.
Invoking this principle for the Second Amendment has several benefits. First,
it is an objective test that is easy for courts to administer. Second, it is the most
historically-grounded test. Third, it not only comports with history, but also with
the self-defense interests protected by the Second Amendment. Comprehensive
253. Antonyuk, 89 F.4th at 363 (2d Cir. 2023).

254. Bruen, 597 U.S. at 31.
255. See Amicus Br. of The Ctr. for Human Liberty at 8–17, Antonyuk v. Hochul, No. 22-2972, Doc.
313 (2d Cir. Feb. 9, 2023) (collecting Colonial and Founding-era laws providing for and funding
security at polling places, legislatures, and courthouses).
security is consonant with self-defense, and the need for armed self-defense is
lessened when the government has taken on the physical and legal obligation of
security and ensured that there will be no criminals with firearms in a particular
location. And the prohibition of firearms in a location without comprehensive se-
curity is actually perverse, as it is only the law-abiding who will obey government
dictates on the possession of firearms. Those bent on committing horrific atroc-
ities are incentivized to seek out gun free zones over places where they might
face armed resistance.
Our Founders were aware that any attempts to restrict the rights of citizens to
bear arms will only harm law-abiding citizens, not criminals. They learned this
lesson from Cesare Beccaria, the Italian criminologist, who, as I have written
elsewhere, “found arms prohibitions to be not just useless—in that they criminal-
ize the perfectly orderly act of carrying a gun for self-protection—but actively
harmful.”256 Beccaria wrote in his work On Crimes and Punishments:
False is the idea of utility that sacrifices a thousand real advantages for one
imaginary or trifling inconvenience; that would take fire from men because it
burns, and water because one may drown in it; that has no remedy for evils,
except destruction. The laws that forbid the carrying of arms are laws of such a
nature. They disarm those only who are neither inclined nor determined to
commit crimes. Can it be supposed that those who have the courage to violate
the most sacred laws of humanity, the most important of the code, will respect
the less important and arbitrary [laws], which can be violated with ease and
impunity, and which, if strictly obeyed, would put an end to personal liberty—
so dear to men, so dear to the enlightened legislator—and subject innocent per-
sons to all the vexations that the guilty alone ought to suffer? Such laws make
things worse for the assaulted and better for the assailants; they serve rather
to encourage than to prevent homicides, for an unarmed man may be attacked
with greater confidence than an armed man.257
Beccaria realized that to “forbid the carrying of arms” effectively means to dis-
arm the law-abiding citizen while letting the criminal run riot. Criminals have
never respected restricted carry laws, and never will: both Beccaria and our
Founders understood this important truth.
We have learned this lesson too many times in the modern era, when psycho-
pathic mass shooters target gun-free zones in order to shoot as many unarmed
people as possible. Thus, they choose Virginia Tech, Stoneman Douglas High
School, and Robb Elementary School as their targets. These so-called “sensitive
256. Mark W. Smith, Enlightenment Thinker Cesare Beccaria and His Influence on the Founders:
Understanding the Meaning and Purpose of the Second Amendment’s Right to Keep and Bear Arms,
2020 PEPP. L. REV. 71, 83 (2020). This was cited in May v. Bonta, 2023 WL 8946212 at *18 (C.D. Cal.,
Dec. 23, 2023).
257. Smith, Enlightenment Thinker Cesare Beccaria and His Influence on the Founders at 83
(emphasis added).
places” are nothing more than sitting ducks in the eyes of potential mass shooters.
Take the following incidents:
� In 2023, a shooting in a Texas mall left multiple people dead. The mall
said that “no weapons” were allowed within its premises, but that didn’t
stop the perpetrator who was potentially a Mexican gang member.258
� A former employee shot up the Old National Bank in Louisville, KY, de-
spite the bank prohibiting both customers and employees from carrying
handguns inside the building.259
� Three people were shot at the Christiana Mall in Delaware, and as you
might expect, it did not allow firearms within the premises.260
� The Nashville Covenant School, like most schools, was also a gun-free
zone when the radical transgender activist committed a shooting there.261
� An Atlanta hospital that operates as a gun-free zone was attacked in
2023.262
� The shooting at Umpqua Community College occurred in a gun free
zone.263
There are endless examples of such shootings taking place in so-called “sensi-
tive places,” but how often do you hear of such a shooting taking place at an
armed police station, at the White House or at an airport beyond the TSA check-
point? Comprehensive, armed security prevents the latter from occurring while a
lack of such allows violent psychopaths to prey upon the innocent with deadly
effect.
Finally, our Founding Fathers were so insistent on the need to carry arms that
they often required people to carry them to places that would be considered
258. UPDATE: Texas Mall Shooting in yet ANOTHER Gun-free Zone, Though Not All Parts of the Mall
Might Have Been Properly Posted. Crime Prevention Research Center, May 6, 2023, crimeresearch.org/
2023/05/texas-mall-shooting-in-yet-another-gun-free-zone [https://perma.cc/5QZT-XU7Y].
259. Old National Bank Shooting in Louisville Was in yet ANOTHER Gun-free Zone, the Murderer
Was Another Left-winger. Crime Prevention Research Center, 11 April 2023, crimeresearch.org/2023/
04/old-national-bank-shooting-in-louisville-was-in-yet-another-gun-free-zone [https://perma.cc/3N5H-
TZJB].
260. Three People Were Shot at the Christiana Mall in Delaware, yet Another Gun-free Zone. Crime
Prevention Research Center, 8 Apr. 2023, crimeresearch.org/2023/04/three-people-were-shot-at-the-
christiana-mall-in-delaware-yet-another-gun-free-zone [https://perma.cc/Q9NJ-3XBM].
261. Nashville Covenant School Shooting Was in yet Another Gun-free Zone. Crime Prevention
Research Center, 27 Mar. 2023, crimeresearch.org/2023/03/nashville-covenant-school-shooting-was-in-
yet-another-gun-free-zone [https://perma.cc/RN9D-CWVV].
262. Active Shooter Attack in Atlanta Hospital Occurred in yet Another Gun-free Zone. Crime
Prevention Research Center, May 3 2023, crimeresearch.org/2023/05/active-shooter-attack-in-atlanta-
hospital-occurred-in-yet-another-gun-free-zone [https://perma.cc/NA2T-UU8G].
263. UPDATED: Umpqua Community College Is yet Another Mass Public Shooting in a Gun-free
Zone. Crime Prevention Research Center, 5 Apr. 2023, crimeresearch.org/2023/04/umpqua-community-
college-is-yet-another-gun-free-zone [https://perma.cc/4HM3-EDEA].
sensitive today, such as town meetings or churches. One Virginia statute said that
“ALL men that are fittinge to beare armes, shall bringe their peices to the
church.”264 Rhode Island required that “noe man shall go two miles from the
Towne unarmed, eyther with Gunn or Sword; and that none shall come to any
public Meeting without his weapon.’’265 Georgia even handed out fines to militia-
men who attended church unarmed.266 These examples show that the historical
tradition in America is not to disarm sensitive places, but to be armed in them.267
An important feature of the armed, comprehensive security test is that it is
objective and less subject to manipulation. By way of analogy, in Heller the
Court posited several reasons why citizens may prefer handguns for self-defense,
but ultimately said that whatever the reason the key point was that citizens did
choose them and therefore they were in common use.268 In the sensitive places
context, there may be a multitude of reasons why a place might be considered
sensitive - democratic deliberations taking place, high-value targets, vulnerable
people, high likelihood of collateral damage, etc. - but whatever the reason, the ir-
reducible minimum feature of a sensitive place is comprehensive government se-
curity. In other words, the question presented to a court is how does government
actually treat the supposed “sensitive place” versus has the government merely
slapped a “sensitive place” label on a particular location proclaiming it to be “gun
free.” Does the government put their money where their mouth is by virtue of
their actions? If not, the government may not disarm Americans and leave the
defenseless against predators, all in violation of their Second Amendment rights.
Comprehensive security entails, at a minimum, the presence of armed guards,
limited points of entry, and metal detectors. Founding-era practice illustrates that
sheriffs, constables, sergeant-at-arms, and others were provided by government
at “sensitive places” to secure the area. For instance, there are several examples
of state legislatures providing security:269
264. 1 WILLIAM WALLER HENING, THE STATUTES AT LARGE: BEING A COLLECTION

OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE 174
(1808) (enacted 1631).
265. 1 RECORDS OF THE COLONY OF RHODE ISLAND AND PROVIDENCE PLANTATIONS,
IN NEW ENGLAND 94 (John Russell Bartlett ed., 1856) (enacted 1639).
266. Vol. 19, Part 1 THE COLONIAL RECORDS OF THE STATE OF GEORGIA 137–40 (Allen
D. Candler ed., 1911) (enacted 1770).
267. See also Benjamin Boyd, Take Your Guns to Church: The Second Amendment and Church
Autonomy, 8 LIBERTY UNIV. L. REV. 653, 697–99 (2014) (collecting colonial- and Founding-era
historical law for requiring firearms at church services); NICHOLAS JOHNSON ET AL., FIREARMS LAW &
THE SECOND AMENDMENT 183–85 (2d ed. 2017) (summarizing laws from Virginia in 1619, 1632, and
1665; Connecticut in 1643 and 1644; Massachusetts Bay in 1637 and 1643; Rhode Island in 1639;
Maryland in 1642; South Carolina in 1740 and 1743; and Georgia in 1770).
268. See Heller, 554 U.S. at 629.
269. Historian Angus Kirk McClellan filed a comprehensive amicus brief providing considerable
historical support for this theory in a pending legal challenge to government-mandated gun free zones,
i.e., sensitive places. The Founding Era statutes set forth in this section were first identified by Dr.
McClellan and these laws can also be found in his brief. See Amicus Br. for Angus Kirk McClellan et
al., Wolford v. Lopez, No. 23-16164 (9th Cir. Nov. 9, 2023).
� In Rhode Island, sheriffs, town sergeants, and constables were paid for
attending the General Assembly. (“The Sheriffs,” “Town Sergeants, and
Constables” “shall be allowed” fees “[f]or attending the General
Assembly”).270
� Delaware provided for public payment of fees to the legislature’s ser-
geant-at-arms and door-keepers. (“[T]he fees belonging to the Sergeant at
Arms shall be as follow . . . Taking any person into custody, Thirty-three
Cents,” “Fees to the Door-keepers of the respective Houses—For every
day’s attendance, One Dollar”).271
� Pennsylvania appropriated funds for the assembly’s sergeant-at-arms and
door-keepers in 1781: “The sergeant-at-arms, for every day’s attendance,
the sum of ten shillings. The door-keeper of the council and the door-
keeper of the house of assembly, each the sum of ten shillings for every
day’s attendance.”272
� South Carolina provided for the payment of door-keepers in 1787. (“Two
Door-keepers £50 each per annum”).273
� New York legislated that “there shall also be allowed and paid to the ser-
jeant at arms and the door keepers of the senate and assembly, each the
sum of two dollars for every day they shall attend the legislature.”274
� Georgia appropriated funds for the legislature’s door-keepers in 1808: “[T]o
the messenger and door-keeper of the Senate, and messenger and door-
keeper of the House of Representatives, three dollars each per day.”275
� New Jersey provided for payment “[t]o the door keeper, the sum of five
shillings per diem, for each day that he hath or shall attend this
Congress.”276
� Virginia provided for “allowances” for the sergeant-at-arms and door-
keepers’ “services” to the General Assembly in 1783.277
� Vermont compensated sheriffs and constables “[f]or attendance on the
general assembly” in 1798.278
270. The Public Laws Of The State Of Rhode-Island 220, 222 (1798).
271. 2 Laws of the State of Delaware, From the Fourteenth Day of October, One Thousand Seven
Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-Seven, pp. 1100,
1118 (1797).
272. 10 The Statutes at Large of Pennsylvania From 1682 to 1801, pp. 376, 378 (1779–1781).
273. The Public Laws of the State of South-Carolina, pp. 426, 427 (1790).
274. An Act for the Support of Government, in 1 Laws of the State of New York, p. 532 (2nd ed.
1807).
275. A Compilation of the Laws of the State of Georgia, Passed by the Legislature Since the Political
Year 1800, to the Year 1810, Inclusive, pp. 372–73 (1812).
276. Provincial Congress, Journal of the Votes and Proceedings of the Provincial Congress of New
Jersey: Held at Trenton in the Month of October 1775, pp. 239, 240 (1835).
277. Virginia, Journal of the House of Delegates of the Commonwealth of Virginia, p.77 (Printed by
Thomas W. White, 1828).
278. The Laws of the State of Vermont, vol. II, pp. 382, 387 (1808).
The same goes for courthouses:
� South Carolina directed that “sheriffs shall by themselves, or their lawful

deputies respectively, attend all the courts hereby appointed, or directed to
be held, within their respective districts.”279
� Virginia enacted a 1792 law providing that “[t]he keeper of the public jail,
shall constantly attend the General Court, and execute the commands of
the Court,” and further providing that “the Sheriff, or so many of the
Under-Sheriffs as shall be thought necessary, of the County where such
Court may be held, shall attend the said Court during their Sessions.”280
� Delaware, in a 1793 law, directed that “the Sheriff of Kent county . . . shall
be attendant on the said High Court of Errors and Appeals during the sit-
ting thereof, and be the officer for the purpose of executing the orders and
process of the said court.”281
� New Jersey, in 1798, mandated that “the constables of the several town-
ships in such county shall be the ministerial officers of the said court” and
provided that the constable “shall be appointed to attend the jury.”282
� New York, in 1801, required “sheriffs and their officers” to attend court
proceedings “to do those things which to their officers shall appertain.”283
� Pennsylvania, in 1780, acknowledged the power of courts to Pennsylvania
to “compel the attendance of sheriffs, coroners, constables, and other min-
isterial officers....”284
� Connecticut’s legislative record includes a fee schedule for sheriffs and
constables attending court proceedings.285
� Georgia provided in a 1792 law for fees to sheriffs and constables for court
proceedings.286
� Maryland law provided for compensation “to the Sheriff,” including for
“Empanelling” and “Swearing” juries and for “Attendances, per day.”287
279. The Public Laws of the State of South Carolina, pp. 268, 271 (1790).
280. A Collection Of All Such Acts Of the General Assembly Of Virginia, pp. 69–71 (1803).
281. 2 Laws of the State of Delaware, From The Fourteenth Day Of October, One Thousand Seven
Hundred, To The Eighteenth Day Of August, One Thousand Seven Hundred And Ninety-Seven, pp.
1088, 1091 (1797).
282. New Jersey, Laws of the State of New Jersey, Compiled and Published, Under the Authority of
the Legislature, pp. 49, 50, 58 (Joseph Bloomfield, 1811).
283. 1 Laws of the State of New York, p. 172 (1807).
284. The Statutes at Large of Pennsylvania From 1682 to 1801, vol. X, p. 57 (Wm. Stanley Ray
1904).
285. Acts and Laws of the State of Connecticut, In America, pp. 63–65 (1784).
286. A Digest of the Laws of the State of Georgia, pp. 471, 473, 474, 478 (1800).
287. The Laws of Maryland to which are prefixed The Original Charter, with an English translation,
v. 1, ch. XXV (1799) (1779 law).
� Massachusetts provided for payment to “[e]very Constable who shall

attend the Supreme Judicial Court, or Court of General Sessions of the
Peace, or Common Pleas.”288
� New Hampshire law provided for “Sheriff’s fees” “[f]or every trial,”
“[f]or attending the grand jury,” and “[f]or attending the petit jury.”289
� North Carolina allocated payment to sheriffs “[f]or summoning, impann-
elling and attending on every jury in every cause in court” and “[f]or
attendance of a constable every court when summoned by the sheriff.”290
� Rhode Island directed that “[t]he Sheriffs,” “Town Sergeants, and Constables”
“shall be allowed” fees “[f]or attending the General Assembly, the Supreme
Judicial Court, and the Courts of Common Pleas, by the day.”291
� Vermont provided for payment of fees to sheriffs and constables “[f]or
attending before a justice’s court, when required,” “[f]or attending freehold-
ers’ courts,” and “[f]or attendance on the general assembly, or supreme or
county court.”292
And so too for polling places:
� Georgia law required sheriffs to attend elections “for the purpose of

enforcing the orders of the presiding magistrates in preserving good
order.”293
� Virginia provided in 1778 that “[t]he sheriff shall attend and take the poll
at such election, entering the names of the persons voted for.”294
� New Jersey provided in 1807 that constables and other elections officers
with authority to detain “riotous” or “disorderly” people for up to 24 hours
to preserve “good order” and “for the security of the election officers from
insult and personal abuse.”295
� Maryland’s constitution mandated that “the Sheriff of each county, or . . .
his Deputy . . . shall be the judges of the election” for the house of dele-
gates, and “the Sheriff of each county, or . . . his Deputy . . . shall hold and
be judge of the said election” for senate.”296
288. Acts and Resolves of Massachusetts, 1786–87, p. 235 (1893) (1786 law).
289. The Laws of the State of New-Hampshire, pp. 112–16 (1797).
290. A Manual of The Laws of North-Carolina, pp. 190, 191, 196 (3d ed. 1814).
291. The Public Laws of the State of Rhode-Island, pp. 220, 222 (1798).
292. The Laws of the State of Vermont, vol. II, pp. 382, 387 (1808) (1798 law).
293. A Digest of the Laws of the State of Georgia, p. 611 (1800).
294. Abridgement Of The Public Permanent Laws Of Virginia, p. 325 (1796).
295. Laws of the State of New Jersey, p. 36 (Bloomfield, ed. 1811).
296. Md. Const. art. 1, §§ 3 & 14 (1776).
� Delaware law authorized “the Sheriffs” and other officials “to attend, con-
duct, and regulate the election.”297
� South Carolina’s laws contain a “Table of Fees” that includes payment to
the sheriff for “publishing writs for electing members to the General
Assembly, taking the ballots and returning the writ.”298
In sum, the thread uniting the locations Bruen presumptively identified as “sen-
sitive” was that they were protected by government-provided comprehensive se-
curity at the Founding. Their sensitivity was never a matter of government fiat.299
CONCLUSION
Since the Supreme Court decided Bruen in June 2022, Second Amendment-
related litigation has exploded. Although this should be a positive trend to ensure
finally that the right to bear arms is given its full constitutional respect and protec-
tion, the reality is more mixed. As this article shows, many lower courts remain
in the mindset that the legal landscape is the same today as it was pre-Bruen, i.e.,
a landscape where the right to bear arms may be treated by the lower courts as a
second-class right. This should not be happening given the Supreme Court’s
Heller and Bruen decisions, and the clear guidance those rulings provide. But
lower courts are making obvious legal mistakes, and this article aims to put those
lower courts on the correct path. If lower courts do not self-correct, it will be up
to the Supreme Court to do so using the binding principles it has established in
Heller and Bruen.
297. 2 Laws of the State of Delaware, From The Fourteenth Day Of October, One Thousand Seven
Hundred, To The Eighteenth Day Of August, One Thousand Seven Hundred And Ninety-Seven, p. 984
(1797).
298. The Public Laws of the State of South Carolina, pp. 386–88 (1790).
299. This is not to say that such locations are necessarily sensitive today. In fact, they cannot be unless
the government provides security there. Conceptually, the comprehensive security standard for evaluating
whether a location is truly a “sensitive place” allowing the government to ban firearms for everyone, even
those with concealed-carry licenses, requires the government to “put its money where its mouth is.” If the
government does not act as if a place is sensitive by providing comprehensive, armed security, then that
location cannot be deemed sensitive. That is because, as Heller explained, self-defense is the central
component of the Second Amendment right. Unless a government is comprehensively securing a location,
that fundamental right to self-defense remains fully intact.

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Dangerous, but not Unusual: Mistakes Commonly

Made by Courts in Post-Bruen Litigation

I. PLAIN TEXT ANALYSIS: THE SECOND AMENDMENT’S UNQUALIFIED

II. THE BURDEN SHIFTS: ONCE THE TEXT OF THE SECOND

III. THE FORK IN THE CONSTITUTIONAL ROAD: HAS THE SUPREME

6. A Lack of Historical Regulations Favors the Second

IV. CONTEMPORARY TYPES OF PENDING SECOND AMENDMENT

V. COMMON MISTAKES MADE BY LOWER COURTS AFTER HELLER

D. Government-Mandated Gun Free Zones a/k/a “Sensitive

Part II discusses the burden imposed on the government to justify a modern

I. PLAIN TEXT ANALYSIS: THE SECOND AMENDMENT’S UNQUALIFIED TEXTUAL

� “[T]he government must affirmatively prove that its firearms regulation is

tradition of firearm regulation. Only if respondents carry that burden can

When an individual’s conduct is covered by the Second Amendment’s text, the

13. Id. at 34.

18. 597 U.S. at 31.

1. Analogues Must Be Government Regulations and Not Generic Historical

23. Bruen, 597 U.S. at 24 (emphasis added).

generation.”37 To shed light on the original meaning of the Second Amendment,

And we made clear in Gamble that Heller’s interest in mid- to late-19th-century

37. Id. at 576–77 (emphasis added).

Bruen itself also concluded that “late-19th-century evidence cannot provide

45. Bruen, 597 U.S. at 66 n.28 (emphasis added).

3. Racist or Unconstitutional Laws Cannot Be Analogues

4. Analogues must be sufficiently “well-established” and “representative”

63. Bruen, 597 U.S. at 17.

Amendment’s adoption, governed less than 1% of the American population, and

72. Id. (quoting Heller, 554 U.S. at 632).

6. A Lack of Historical Regulations Favors the Second Amendment

91. Id. at 44 n.11.

B. Restrictions Imposed on 18-20 Year Olds

Although we have no occasion to comprehensively define “sensitive places” in

109. 18 U.S.C. § 922(g); 27 CFR § 478.21, 478.99.

likewise true that law enforcement professionals are usually presumptively

113. Bruen, 597 U.S. at 30-31.

V. COMMON MISTAKES MADE BY LOWER COURTS AFTER HELLER AND BRUEN

The Court rejected that interpretation, stating that:

Miller’s “ordinary military equipment” language must be read in tandem with

133. Id at 579, 581-86.

139. Id. at 582.

3. The Test Is Not “In Common Use for Self-Defense”

the use of LCMs [large-capacity magazines] in self-defense.”155 According to the

4. The language from Bruen regarding technological changes and societal

changes may require a more nuanced approach.”165 Gun-control advocates and a

168. Bruen, 597 U.S. at 47.

184. DSSA, 664 F. Supp. 3d at 597.

Plaintiffs contend that if a weapon is popular—that is, if thousands or even

The court then opined:

Whatever the meaning of “common use,” that contention cannot be correct.

On the majority’s reasoning, if tomorrow someone invents a particularly use-

7. It is improper to import substantive, empirical tests into the initial threshold

201. Bevis, 85 F.4th at 1203.

205. Id. at 1193.

constitutional, provided that the application process is neither expensive nor

210. Bruen, 597 U.S. at 70-71.

On page 3B of the February 4, 1956 Montgomery Advertiser the headline read,

C. Mistakes in Cases Challenging Gun Restrictions Imposed on Young Adults

requires understanding historically what made “legislative assemblies, polling

248. Bruen, 597 U.S. at 30.