{"id":96563,"date":"2023-10-06T20:57:21","date_gmt":"2023-10-07T01:57:21","guid":{"rendered":"https:\/\/milesfortis.com\/?p=96563"},"modified":"2023-10-06T21:30:05","modified_gmt":"2023-10-07T02:30:05","slug":"96563","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=96563","title":{"rendered":""},"content":{"rendered":"

2A says ‘right to keep and bear arms’<\/em><\/strong><\/span>
\nThat’s anything<\/em> to do with weaponry<\/p>\n

Analysis: Pistol Brace Ruling Implies Second Amendment Protects AR-15s, Ammo Mags, and Silencers<\/a><\/p>\n

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\u201c[T]he Court finds that braced pistols regulated under the Final Rule are commonly used by law-abiding citizens for lawful purposes.\u201d<\/span><\/p>\n

That may be the most influential finding in Judge Reed O\u2019Connor\u2019s decision enjoining the ATF\u2019s pistol brace rule. It strikes at a key part of the fight over gun and accessory bans across the country. And how Judge O\u2019Connor reached his conclusion provides new insight into the threshold other courts may employ to determine whether the Second Amendment protects a banned item.<\/span><\/p>\n

Working off of Supreme Court precedent in 2008\u2019s\u00a0<\/span>District of Columbia v. Heller<\/span><\/em>, 2010\u2019s\u00a0<\/span>McDonald v. Chicago<\/span><\/em>, and 2022\u2019s\u00a0<\/span>New York State Rifle and Pistol Association v. Bruen<\/span><\/em>, Judge O\u2019Connor established the test for whether the Constitution protects an arm is whether it\u2019s in lawful common use or not. And he said the Court had already determined modern handguns fit the bill.<\/span><\/p>\n

\u201cA weapon is in \u2018common use\u2019 rather than \u2018dangerous and unusual\u2019 if it is \u2018commonly possessed by law-abiding citizens for lawful purposes today,’\u201d he wrote. \u201cThe relevant inquiry under this standard is the current total number of a particular weapon that is in lawful possession, ownership, and circulation throughout the United States. As a per se matter, semiautomatic pistols are commonly used weapons for lawful self-defense purposes across the United States today.\u201d<\/span><\/p>\n

From there, he found adding a brace to a pistol \u201cdoes not somehow alter that status and effectively strip these pistols of their Second Amendment protection.\u201d Then he argued the ATF\u2019s own estimate for how many braced pistols have been legally purchased over the years directly undercut its argument they could be banned or significantly restricted.<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/section>\n

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\u201cThe Government Defendants\u2019 assertion to the contrary\u2014that pistols do become dangerous and unusual as soon as stabilizing braces are attached to them\u2014does not survive its own administrative record,\u201d Judge O\u2019Connor wrote. \u201cThe ATF\u2019s regulatory analysis concludes that there are between 3 and 7 million, with a fifty percentile estimate of 5 million, braced pistols under the ownership of law-abiding individuals for lawful purposes throughout the United States.\u201d<\/p>\n

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That estimate comes from the agency\u2019s\u00a0<\/span><\/span>impact assessment for the rule<\/span><\/a>. But those numbers are actually on the lower end of the spectrum. The Congressional Research Service\u00a0<\/span>found<\/span><\/a>\u00a0braced pistols are even more common, estimating there are between 10 to 40 million in civilian hands. Regardless, Judge O\u2019Connor argued the fact that everyone agrees there are at least millions of these guns puts them squarely in the \u201ccommon use\u201d category.<\/span><\/p>\n

\u201cIn the Final Rule publication as well, ATF did not dispute noteworthy public comments pointing out that \u2018millions of \u2018braces\u2019 are in use\u2019 and that braced pistols are \u2018commonly used by millions of law-abiding Americans for various reasons,’\u201d he wrote. \u201cOn the other hand, ATF even conceded that since 2012, \u2018the variety of available \u2018stabilizing braces\u2019 or similar \u2018brace\u2019 devices and pistols equipped with \u2018braces\u2019 has grown significantly.\u2019 Supreme Court guidance and sister circuit precedent postulate that this record is dispositive of the matter.\u201d<\/span><\/p>\n

Judge O\u2019Connor isn\u2019t alone in this determination either. When a Fifth Circuit Court of Appeals panel reviewed the ATF\u2019s rule, it blocked it after finding the agency exceeded its statutory power. However, Judge Don Willett\u00a0<\/span>wrote a concurrence<\/span><\/a>\u00a0where he also argued that braced pistols are in common use and protected by the Second Amendment.<\/span><\/p>\n

\u201cRearward attachments, besides<\/span><\/span>\u00a0making a pistol less concealable, improve a pistol\u2019s stability, and thus a user\u2019s accuracy. Accuracy, in turn, promotes safety,\u201d Willett\u00a0<\/span>wrote in a concurrence<\/span><\/a>. \u201cIn my view, protected Second Amendment\u2019 conduct\u2019 likely includes making common, safety-improving modifications to otherwise lawfully bearable arms.\u201d<\/span><\/p>\n

Supreme Court Justice Samuel Alito has also opined on this point in a concurrence. While 2016\u2019s\u00a0<\/span>Caetano v. Massachusetts<\/span><\/em>\u00a0was primarily about establishing the Second Amendment extended to modern-day arms, he argued the existence of as little as 200,000 stun guns made them protected.<\/span><\/p>\n

\u201cThe more relevant statistic is that \u2018[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,\u2019 who it appears may lawfully possess them in 45 States,\u201d he\u00a0<\/span>wrote<\/span><\/a>. \u201cWhile less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts\u2019 categorical ban of such weapons therefore violates the Second Amendment.\u201d<\/span><\/p>\n

But even if you back off to Judge O\u2019Connor\u2019s standard that millions of the affected arms have to be in civilian hands to be protected, that has massive implications for some of the most contentious gun laws in the country. Nearly every high-profile hardware ban would likely be affected because of how popular their targets are with Americans.<\/span><\/p>\n

The prevalence of different guns and accessories is often challenging to quantify because most aren\u2019t registered. Estimates are generally inexact at best. For instance, nobody keeps track of how many ammunition magazines are produced each year, and estimates of their popularity are probably among the least reliable. The disparate nature of various state magazine bans, with different states setting capacity limits at 10 or 15 or 17 rounds, also limits how accurate estimates of affected arms can be.<\/span><\/p>\n

Still, so-called high-capacity magazines are probably the most common of the banned arms out there today. The vast majority of modern handguns and semi-automatic rifles come standard with multiple magazines that at least hold more than 10 rounds of ammunition. Plaintiffs in one suit against Rhode Island\u2019s ban estimated there are 115 million in circulation,\u00a0<\/span>according to Courthouse News Service<\/span><\/a>. Even if they\u2019re off by an order of magnitude, that still puts the magazines comfortably in the realm of protected arms under Judge O\u2019Connor\u2019s reasoning (of course, there\u2019s also a live legal debate over whether they qualify as arms at all).<\/span><\/p>\n

A number of federal judges have already come to this conclusion since last year\u2019s Bruen ruling. Most recently, Judge Roger Benitez\u00a0<\/span>determined California can\u2019t ban magazines<\/span><\/a>\u00a0because they are in common use.<\/span><\/p>\n

\u201cThis case is<\/span><\/span>\u00a0about a California state law that makes it a crime to keep and bear common firearm magazines typically possessed for lawful purposes,\u201d Judge Benitez\u00a0<\/span>wrote in<\/span><\/a>\u00a0Duncan v. Bonta.<\/span><\/em>\u00a0\u201cBased on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.\u201d<\/span><\/p>\n

The estimate for how many AR-15s and similar firearms, often targeted in \u201cassault weapon\u201d bans, is smaller than that of magazines but also a bit more reliable. The National Shooting Sports Foundation, the gun industry\u2019s trade group, reported last year that\u00a0<\/span>more than 24.4 million AR-15s and AK-47s are in civilian hands<\/span><\/a>. That number was pulled from decades of ATF manufacturing reports, which don\u2019t track specific models but do give a general overview of firearm type.<\/span><\/p>\n

That puts ARs comfortably into the millions, even if it ends up being an extreme overcount. The number of rifles in circulation hasn\u2019t been key thus far in the post-<\/span>Bruen<\/span><\/em>\u00a0assault weapon ban cases, most of which haven\u2019t gotten as far as similar magazine challenges, but it\u2019s likely to determine whether those bans ultimately stand or fall.<\/span><\/p>\n

The number of silencers in circulation is smaller still than AR-15s, but the estimate of how many exist is also more reliable. As of May 2021, Americans have\u00a0<\/span>registered 2,664,774 silencers<\/span><\/a>\u00a0with the ATF under the National Firearms Act (NFA). That\u2019s a very reliable count because the NFA requires civilians to register all of their sound suppressors with the agency or face potential prosecution. That puts the number of silencers slightly below the ATF\u2019s estimate for the number of braced pistols. But not by much.<\/span><\/p>\n

That could make a future challenge of the NFA\u2019s registration requirements viable, at least as they apply to silencers.<\/span><\/p>\n

Of course, gun-rights activists have been pushing courts to adopt this line of thinking since\u00a0<\/span>Heller<\/span><\/em>\u00a0was handed down 15 years ago. And Judge O\u2019Connor is just a district court judge. His ruling isn\u2019t binding on anyone but the parties to the case. Other federal judges don\u2019t have to follow his reasoning. The same is true of single-judge concurrences, even all the way up at the Supreme Court.<\/span><\/p>\n

But, if Judge O\u2019Connor\u2019s standard for determining \u201ccommon use\u201d proves to be influential, it will upend gun policy in the ways gun-rights advocates have been hoping, and gun-control advocates have been dreading, for a generation.<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/section>\n","protected":false},"excerpt":{"rendered":"

2A says ‘right to keep and bear arms’ That’s anything to do with weaponry Analysis: Pistol Brace Ruling Implies Second Amendment Protects AR-15s, Ammo Mags, and Silencers \u201c[T]he Court finds that braced pistols regulated under the Final Rule are commonly used by law-abiding citizens for lawful purposes.\u201d That may be the most influential finding in … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,8],"tags":[],"class_list":["post-96563","post","type-post","status-publish","format-standard","hentry","category-courts","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/96563","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=96563"}],"version-history":[{"count":3,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/96563\/revisions"}],"predecessor-version":[{"id":96566,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/96563\/revisions\/96566"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=96563"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=96563"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=96563"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}