From an amicus brief filed by the Firearms Policy Coalition, Second Amendment Foundation, and individual plaintiffs in Bianchi v. Frosh, a challenge to Maryland’s “assault weapons” ban . . .
Circuit court decisions upholding rifle bans like those in this this case rely on untenable reasoning. The Fourth Circuit’s rule, at issue here, would authorize prohibiting the most common arms of the colonial and Founding periods: the all-in-one American long gun that was made for hunting, personal defense, and militia use.
The Seventh Circuit purported to favor arms like those of the Founding Era. Yet the court upheld a ban on self-loading firearms, a type that preceded the Second Amendment by a century-and-a-half.
The Second Circuit employed an especially unfavorable version of intermediate scrutiny that considers only the government’s evidence, and that does not consider less restrictive alternatives. The First Circuit second-guessed law-abiding citizens’ personal choices of common defensive arms.
All four of this Court’s Second Amendment precedents on arms bans—Heller, McDonald, Caetano, and Miller—eschewed means-ends balancing. This Court’s approach has always been categorial.
The rifles at issue here are “in common use,” as lower courts have acknowledged. “Common use” is not determined by how often a gun is fired in self-defense. “Common use” encompasses all lawful uses, including hunting and self-defense. Arms bans do not become constitutional if they slice protected classes of arms into smaller subclasses. Dick Heller’s 9-shot .22 caliber revolver was not particularly common, but handguns are very common.
— David Kopel in Maryland Rifle Ban in the Supreme Court