1153
C
ONSTITUTIONAL LAW — SECOND AMENDMENT — EN BANC
FOURTH CIRCUIT UPHOLDS MARYLAND ASSAULT WEAPONS BAN
UNDER BRUEN’S “TEXT AND HISTORY” TEST. — Bianchi v.
Brown, 111 F.4th 438 (4th Cir. 2024) (en banc).
“The AR-15 is the best-selling rifle in the United States,” with as
many as 16 million Americans owning an AR-15-style firearm.
1
“As-
sault weapons” like the AR-15 are also disproportionately the weapon
of choice “in mass public shootings and killings of law enforcement of-
ficers.”
2
Ten states and the District of Columbia have banned assault
weapons, including AR-15s and other comparable semiautomatic fire-
arms.
3
However, the Supreme Court’s 2022 decision in New York State
Rifle & Pistol Ass’n v. Bruen
4
cast doubt on the constitutionality of such
measures by establishing a new test for firearm regulations based on the
Second Amendment’s text and history.
5
Recently, in Bianchi v. Brown,
6
the Fourth Circuit upheld Maryland’s assault weapons ban under
Bruen, holding that the regulated arms were not protected by the Sec-
ond Amendment’s text and that the statute was consistent with a his-
torical tradition of “regulating excessively dangerous weapons.”
7
While
Bianchi exemplifies the confusion among lower courts attempting to ap-
ply Bruen’s “text and history” test, the Fourth Circuit’s interpretation of
Bruen presents a potential path forward for other courts.
In 2020, three Maryland residents, three gun rights organizations,
and a licensed Maryland firearms dealer sued the then–state Attorney
General and other law enforcement officials under 42 U.S.C. § 1983,
alleging that “enforcement of Maryland’s assault weapons regulations
was unconstitutional under the Second Amendment[].”
8
Maryland law
makes it illegal to “possess, sell, . . . transfer, purchase, or receive an as-
sault weapon,”
9
subject to limited exceptions.
10
The district court
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1
Emily Guskin et al., Why Do Americans Own AR-15s?, WASH. POST (Mar. 27, 2023, 6:12
AM), www.washingtonpost.com/nation/interactive/2023/american-ar-15-gun-owners [https://
perma.cc/L88Q-2D7Q].
2
The Effects of Bans on the Sale of Assault Weapons and High-Capacity Magazines, RAND
(July 16, 2024), www.rand.org/research/gun-policy/analysis/ban-assault-weapons.html [https://
perma.cc/6KCX-NMKK].
3
Id.
4
142 S. Ct. 2111 (2022).
5
Id. at 2129–30.
6
111 F.4th 438 (4th Cir. 2024) (en banc).
7
Id. at 441.
8
Id. at 443.
9
MD. CODE ANN., CRIM. LAW § 4-303(a)(2) (West 2024). “Assault weapon” is defined as “an
assault long gun,” “an assault pistol,” or “a copycat weapon.” Id. § 4-301(d). “Assault long gun”
encompasses forty-five enumerated semiautomatic rifles and shotguns. Id. § 4-301(b); P
UB.
SAFETY § 5-101(r)(2). “Assault pistol” includes fifteen semiautomatic pistols. CRIM. LAW § 4-
301(c). “Copycat weapon” is defined as any other firearm with certain characteristics such as large-
capacity magazines or folding stocks. Id. § 4-301(h)(1).
10
CRIM. LAW § 4-303(b).
1154 HARVARD LAW REVIEW [Vol. 138:1153
dismissed the complaint, as the Fourth Circuit had previously upheld
the constitutionality of the statute in 2017 under an intermediate scru-
tiny standard.
11
A panel of the Fourth Circuit affirmed,
12
and the plain-
tiffs subsequently appealed to the Supreme Court.
13
Before deciding the
petition for certiorari, the Court issued its opinion in Bruen, clarifying
the standard for assessing Second Amendment challenges.
14
The Court
had previously established that the Second Amendment protected “an
individual right to keep and bear arms” in District of Columbia v. Hel-
ler,
15
but declined to specify a level of scrutiny for evaluating gun regu-
lations.
16
Bruen disavowed the means-end scrutiny approach that had
developed in the lower courts post-Heller.
17
Instead, Bruen established
a new test, requiring a court to first assess whether the plain text of the
Second Amendment protects the conduct that the government seeks to
regulate.
18
If so, the burden shifts to the government to show that the
regulation “is consistent with the Nation’s historical tradition of firearm
regulation”
19
by identifying analogous historical regulations.
20
This
analysis turns on “how and why the regulations burden . . . [the] right
to armed self-defense.”
21
The Court then granted certiorari on Bianchi,
vacated the judgment, and remanded the case to the Fourth Circuit for
reconsideration in light of Bruen.
22
The Fourth Circuit affirmed.
23
Writing for the en banc court, Judge
Wilkinson held that assault weapons were not covered by the Second
Amendment’s text and that Maryland’s regulations were consistent with
a “tradition of regulating excessively dangerous weapons.”
24
Applying
the first step of Bruen, he determined that assault weapons did not fall
within the textual “right to keep and bear arms.”
25
Though acknowl-
edging that assault weapons might literally appear to be “arms,” he ar-
gued that the “text [could not] be read in a vacuum.”
26
To the contrary,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
11
Bianchi v. Frosh, No. JKB-20-3495, 2021 WL 12192789, at *1 (D. Md. Mar. 4, 2021); see
Kolbe v. Hogan, 849 F.3d 114, 121 (4th Cir. 2017) (en banc).
12
Bianchi v. Frosh, 858 F. App’x 645, 646 (4th Cir. 2021) (mem.) (per curiam).
13
Petition for Writ of Certiorari at 5, Bianchi v. Frosh, 142 S. Ct. 2898 (2022) (No. 21-902).
14
See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022).
15
554 U.S. 570, 595 (2008).
16
See id. at 634–35.
17
Bruen, 142 S. Ct. at 2127. Most circuits had adopted a two-step approach where courts first
evaluated whether the conduct fell within the scope of the Second Amendment and then applied
either strict or intermediate scrutiny, depending on the nature of the conduct and the burden of the
regulation. See, e.g., Kolbe v. Hogan, 849 F.3d 114, 132–33 (4th Cir. 2017) (en banc).
18
Bruen, 142 S. Ct. at 2129–30.
19
Id. at 2130.
20
Id. at 2131.
21
Id. at 2133.
22
Bianchi v. Frosh, 142 S. Ct. 2898, 2898–99 (2022) (mem.) (citing Bruen, 142 S. Ct. 2111).
23
Bianchi, 111 F.4th at 441.
24
Id. at 446. Judge Wilkinson was joined by Chief Judge Diaz and Judges King, Wynn,
Thacker, Harris, Heytens, Benjamin, and Berner. Id. at 441.
25
Id. at 452.
26
Id. at 447 (citing Biden v. Nebraska, 143 S. Ct. 2355, 2378 (2023) (Barrett, J., concurring)).
2025] RECENT CASES 1155
because “the Second Amendment . . . codified a pre-existing right”
27
and
“the central component” of this right was individual “self-defense,”
28
Judge Wilkinson wrote that the Amendment incorporates common law
limitations on the right to self-defense.
29
Hence, the amendment does
not guarantee a right to possess or use any weapon for any purpose;
instead, it protects only arms typically used for self-defense.
30
However,
“dangerous and unusual weapons” that are most suitable for criminal
and military use, as opposed to those “in common use . . . for self-
defense,” can be lawfully banned.
31
He then found that AR-15s and
similar firearms were unsuitable for self-defense given their “dangerous
and unusual” military characteristics and therefore could be banned.
32
Judge Wilkinson further held that even if assault weapons were cov-
ered by the Second Amendment’s text, Maryland’s regulations were con-
sistent with a historical tradition of state legislatures responding to
technological developments in weaponry by banning “dangerous and
unusual” new weapons.
33
He traced the development of weapons tech-
nology, finding historical examples of nineteenth- and twentieth-century
state laws regulating firearms and dangerous weapons such as Bowie
knives.
34
This trend continued into the later twentieth century with new
regulations of Tommy guns, machineguns, and semiautomatic fire-
arms.
35
Judge Wilkinson concluded that these regulations, enacted by
state legislatures in response to dangerous new weapons, were suffi-
ciently analogous to the Maryland statute regulating assault weapons
and therefore the Maryland statute satisfied the second step of Bruen.
36
Chief Judge Diaz concurred and wrote separately to criticize Bruen,
characterizing the methodological approach as “a labyrinth for lower
courts.”
37
He noted that both the Bianchi majority and dissent had
examined the same history, only to come to “diametrically opposed con-
clusions.”
38
Judge Gregory concurred in the judgment, disagreeing with
both the majority’s and dissent’s interpretations of Bruen and arguing
“that the Second Amendment presumptively protects all bearable arms,
but history supports regulation of arms that are dangerous and unusual,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
27
Id. (alteration in original) (quoting Bruen, 142 S. Ct. at 2127).
28
Id. at 448 (quoting District of Columbia v. Heller, 554 U.S. 570, 599 (2008)) (citing Bruen, 142
S. Ct. at 2135; McDonald v. City of Chicago, 561 U.S. 742, 767 (2010)).
29
Id. at 448–49.
30
Id. at 450 (quoting Heller, 554 U.S. at 626).
31
Id. at 452–53 (quoting Bruen, 142 S. Ct. at 2128, 2134).
32
Id. at 458–59.
33
See id. at 462.
34
Id. at 465–67 (citing Robert J. Spitzer, Gun Law History in the United States and Second
Amendment Rights, 80 L
AW & CONTEMP. PROBS., no. 2, 2017, at 55, 62–68).
35
Id. at 469–71.
36
Id. at 471–72.
37
Id. at 473 (Diaz, C.J., concurring). Chief Judge Diaz was joined by Judges King, Wynn,
Thacker, Benjamin, and Berner. Id.
38
Id. at 474.
1156 HARVARD LAW REVIEW [Vol. 138:1153
including but not limited to, those arms not presently in common use.”
39
While criticizing the majority for employing the means-end scrutiny for-
bidden by Bruen,
40
he concluded that Maryland’s laws fell within a his-
torical tradition of regulating excessively dangerous weapons.
41
Judge Richardson wrote for the dissenters, concluding that the stat-
ute was unconstitutional.
42
He first argued that assault weapons are
literally “bearable arms”
43
and therefore presumptively protected by the
Second Amendment’s plain text.
44
He rejected the notion that Heller
limited the amendment’s text to exclude “dangerous and unusual” weap-
ons, instead locating that analysis in Bruen’s second step.
45
He then
reviewed English common law and Founding-era history,
46
determining
that the government could ban only weapons that are either “particu-
larly useful for criminal activity” or not in common use for lawful pur-
poses.
47
However, he argued that arms in common usage for lawful
purposes could not be banned, even if dangerous.
48
He then asserted
that because assault weapons like the AR-15 are commonly used for
lawful purposes, such as recreation or self-defense, they are constitution-
ally protected.
49
He disputed the majority’s characterization of AR-15s
as inappropriate for self-defense, pointing to their ease of use, accuracy,
and stopping power.
50
He also rejected the majority’s historical ana-
logues, finding that they banned only arms “that were both dangerous
and unusual,” but not those in common use.
51
Bianchi exemplifies the judicial confusion generated by Bruen. Both
critics and supporters of Bruen have noted the difficulties faced by
courts attempting to apply its “text and history” approach.
52
Courts are
divided over how to determine the scope of the Second Amendment’s
plain text, how to understand Heller’s presumptive protection of arms
“in common use,” and how to analyze analogous regulations in finding
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
39
Id. at 477 (Gregory, J., concurring in the judgment) (citing District of Columbia v. Heller, 554
U.S. 570, 582 (2008)).
40
Id. at 479 (citing N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2127, 2133 n.7
(2022)).
41
Id. at 482.
42
Id. at 483 (Richardson, J., dissenting). Judge Richardson was joined by Judges Niemeyer,
Agee, Quattlebaum, and Rushing. Id.
43
Id. at 500 (quoting Heller, 554 U.S. at 582).
44
Id. at 501.
45
Id. at 502 (quoting Heller, 554 U.S. at 627).
46
Id. at 515.
47
Id. at 514 (citing William Baude & Robert Leider, The General-Law Right to Bear Arms, 99
N
OTRE DAME L. REV. 1467, 1499–500 (2024)).
48
Id. at 516.
49
Id. at 518–19.
50
Id. at 525–26.
51
Id. at 532.
52
Compare Baude & Leider, supra note 47, at 1469 (criticizing “confusion and misapplication
[of Bruen] in the lower courts”), with Jacob D. Charles, The Dead Hand of a Silent Past: Bruen,
Gun Rights, and the Shackles of History, 73 D
UKE L.J. 67, 78 (2023) (characterizing post-Bruen
rulings as “scattered, unpredictable, and often internally inconsistent”).
2025] RECENT CASES 1157
a historical tradition. The way that Bianchi overcomes these doctrinal
puzzles offers a path forward for other courts grappling with Bruen.
The problems begin at the first step of Bruen: Which “Arms” are
covered by the plain text of the Second Amendment?
53
Heller defined
“Arms” as “[w]eapons of offence,”
54
including “all instruments that con-
stitute bearable arms.”
55
However, Heller also stated that the amend-
ment protects only weapons “in common use at the time”
56
as opposed
to “weapons not typically possessed by law-abiding citizens for lawful
purposes,”
57
such as “dangerous and unusual weapons” and those “most
useful in military service.”
58
Bruen did not clarify whether courts
should interpret “Arms” literally, as Judge Richardson did,
59
or instead
incorporate Heller’s limitations on arms “in common use”
60
versus “dan-
gerous and unusual” arms, as Judge Wilkinson did.
61
Other courts are
undecided about whether this distinction is part of the plain text analysis
in Bruen’s first step or the historical tradition analysis in the second
step.
62
But a literal reading of “Arms” would apparently offer prima
facie protection to even military weapons like the M16 rifle or small
nuclear warheads,
63
a seemingly absurd outcome that Judge Wilkinson
avoids.
64
Such an approach would also diverge from how courts have
incorporated common law historical context from the Founding era in
interpreting other rights, like the First Amendment.
65
By incorporating
preexisting historical limitations, the Bianchi majority appropriately
read the Second Amendment in its historical context, consistent with
Heller’s and Bruen’s ostensibly originalist methodologies.
66
Regardless of whether “common use” is relevant to the plain text
interpretation, the term itself is undefined. Neither Heller nor Bruen
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
53
U.S. CONST. amend. II.
54
District of Columbia v. Heller, 554 U.S. 570, 581 (2008) (quoting Arms, 1 SAMUEL JOHNSON,
A DICTIONARY OF THE ENGLISH LANGUAGE (London, W. Strahan 4th ed. 1773) (alteration
added)).
55
Id. at 582.
56
Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)).
57
Id. at 625.
58
Id. at 627.
59
Bianchi, 111 F.4th at 500 (Richardson, J., dissenting).
60
Id. at 453 (majority opinion) (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct.
2111, 2134 (2022)).
61
Id. (quoting Bruen, 142 S. Ct. at 2128).
62
Bevis v. City of Naperville, 85 F.4th 1175, 1198 (7th Cir. 2023) (“There is no consensus on
whether the common-use issue belongs at Bruen step one or Bruen step two.”). This lack of clarity
is problematic as the party challenging the regulation would bear the burden of showing “common
use” if it were a step one issue, whereas the government would bear the burden if it belonged to
step two. See Jamie G. McWilliam, The Relevance of “In Common Use” After Bruen, H
ARV. J.L.
& PUB. POL’Y: PER CURIAM, Fall 2023, at 1, 8.
63
See Charles, supra note 52, at 95–96.
64
See Bianchi, 111 F.4th at 460.
65
Id. at 447–48 (analogizing to First Amendment jurisprudence, where activity that is literally
“speech” such as defamation or perjury nevertheless falls outside the Amendment’s protection).
66
See id. at 448.
1158 HARVARD LAW REVIEW [Vol. 138:1153
specifies a test for whether an arm is “in common use.”
67
Judge Rich-
ardson argued that so long as a weapon is “widely owned”
68
for any
lawful purpose, then it is “in common use”
69
and constitutionally pro-
tected.
70
Hence, a legislature could constitutionally regulate a new
weapon only before it became too popular.
71
But such an approach
would be self-undermining and depend on arbitrary numerical thresh-
olds.
72
And, contrary to the way that legislatures have traditionally re-
sponded to new weapons,
73
they would instead have to choose between
immediately banning new weapons as soon as they were invented (with-
out the benefit of “observation and experience”), or forgoing regulation
entirely once the weapon reached some indeterminate threshold of own-
ership.
74
This confusion is unsurprising, given that Heller provided lit-
tle guidance on how to operationalize “common use” and Bruen
provided no further clarity.
75
By contrast, the Bianchi majority dis-
claimed numerical thresholds, instead focusing on whether the arms are
in “common use today for self-defense.”
76
Analyzing the characteristics
of the weapon itself, and its suitability for self-defense, sidesteps any
self-undermining and arbitrary numerical thresholds. It also respects
the realities of how legislatures respond to public safety threats.
77
Fur-
thermore, such an approach is consistent with Heller’s own language
placing military-style weapons beyond the protection of the Second
Amendment.
78
As for Bruen’s second step, the analysis of “history and tradition”
has proven especially confusing.
79
Bruen itself dismissed administrabil-
ity concerns, arguing that the test was no different from the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
67
See id. at 460.
68
Id. at 518 (Richardson, J., dissenting).
69
Id. at 519.
70
See id. at 518–20. But see Mike McIntire & Jodi Kantor, The Gun Lobby’s Hidden Hand in
the
2nd Amendment Battle, N.Y. TIMES (June 18, 2024), www.nytimes.com/2024/06/18/us/
gun-laws-georgetown-professor.html [https://perma.cc/2X4G-EAHA] (criticizing survey data cited
by dissent).
71
Bianchi, 111 F.4th at 460.
72
See Bevis v. City of Naperville, 85 F.4th 1175, 1190 (7th Cir. 2023) (“[I]t would be absurd to
say that the reason why a particular weapon can be banned is that there is a statute banning it, so
that it isn’t commonly owned.” (quoting Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th
Cir. 2015))).
73
Robert J. Spitzer, Understanding Gun Law History After Bruen: Moving Forward by Looking
Back, 51 F
ORDHAM URB. L.J. 57, 104 (2023) (“New gun laws are not enacted when firearm tech-
nologies are invented or conceived. They are enacted when those technologies circulate sufficiently
in society to spill over into criminal or other harmful use, presenting public safety concerns that
governments attempt to address through their police and policy-making powers.”).
74
Bianchi, 111 F.4th at 461.
75
McWilliam, supra note 62, at 3–4.
76
111 F.4th at 460 (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2134
(2022)) (citing Bevis, 85 F.4th at 1192; United States v. Price, 111 F.4th 392, 404–06 (4th Cir. 2024)).
77
See Spitzer, supra note 73, at 104.
78
District of Columbia v. Heller, 554 U.S. 570, 627–28 (2008).
79
See Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudi-
cation, 133 Y
ALE L.J. 99, 107–08 (2023).
2025] RECENT CASES 1159
“commonplace task” of lawyers’ analogical reasoning.
80
However,
anachronism poses a fundamental problem to Bruen’s demand for his-
torical analogues.
81
Neither semiautomatic firearms nor mass public
shootings existed at the time of the Founding; there cannot have been
regulations addressing these issues in that era.
82
Hence, the absence of
regulations is not probative of their constitutionality, as eighteenth- and
nineteenth-century legislatures could not have regulated weapons that
had not yet been invented to address a problem that did not then exist.
Nevertheless, this quandary can be partially addressed by moving to
“a higher level of generality” — that is, identifying a more abstract prin-
ciple underlying the regulations.
83
In Bianchi, Judge Wilkinson gener-
alized from regulations on weapons like Bowie knives and Tommy guns
to find a historical tradition of regulatory responses to weaponry inno-
vation.
84
Bruen itself left the level of generality unspecified, even
though this choice is often outcome determinative.
85
However, the Su-
preme Court in United States v. Rahimi
86
seemed to endorse a higher
level of generality in upholding a federal law prohibiting individuals
subject to a domestic violence restraining order from possessing a fire-
arm.
87
Eight Justices found that the principle of disarming dangerous
individuals was consistent with the nation’s regulatory tradition, even if
the historical analogues operated differently in implementation.
88
The
Court reiterated that Bruen did not require an exact “historical twin.”
89
Still, Rahimi declined to specify the precise level of generality for
Bruen’s history and tradition analysis.
90
Moving to a higher level of
generality may nevertheless be a promising way for courts to overcome
anachronism by drawing broader principles from the historical record
instead of focusing narrowly on individual analogues.
Furthermore, while detractors have criticized decisions like Bianchi
for improperly narrowing the Supreme Court’s precedents to uphold
gun safety measures,
91
“narrowing from below” could be seen as a
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
80
Bruen, 142 S. Ct. at 2132.
81
See Blocher & Ruben, supra note 79, at 150–51.
82
Bianchi, 111 F.4th at 463–64 (“These are not our forebears’ arms, and these are not our fore-
bears’ calamities.” Id. at 464.).
83
Blocher & Ruben, supra note 79, at 164.
84
111 F.4th at 466–70.
85
See Charles, supra note 52, at 139–40; Blocher & Ruben, supra note 79, at 162–64.
86
144 S. Ct. 1889 (2024).
87
Id. at 1896–97.
88
See id. at 1894, 1901–02.
89
Id. at 1898 (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022)).
90
See id. at 1929 (Jackson, J., concurring) (describing the “level of generality at which a court
evaluates [historical] sources [under Bruen]” as “[not] yet adequately clarified”); id. at 1926 (Barrett,
J., concurring) (“Harder level-of-generality problems can await another day.”). See generally Lau-
rence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U.
CHI. L.
REV. 1057, 1092 (1990) (arguing that choosing a level of generality requires value judgments).
91
See, e.g., Duncan v. Bonta, 83 F.4th 803, 818–20 (9th Cir. 2023) (Bumatay, J., dissenting);
Baude & Leider, supra note 47, at 1468–69 (criticizing the narrowing of Heller).
1160 HARVARD LAW REVIEW [Vol. 138:1153
legitimate response to Bruen’s ambiguity.
92
Indeed, the absence of guid-
ance from the Court and its unwillingness to say more than what is
strictly necessary in each case may be understood as an implicit delega-
tion to the lower courts to interpret Bruen with greater discretion.
93
Such an approach errs on the side of deferring to legislative judgments
when the Court has provided an imprecise test like Bruen and allows
evolving regulations in response to new public safety threats.
94
This
point was further underscored by Rahimi’s rejection of the Fifth Cir-
cuit’s strict interpretation of Bruen and Rahimi’s apparent refusal to
further clarify Bruen’s test.
95
Viewed this way, Bianchi legitimately re-
sisted what otherwise would have been a disruptive decision by adopt-
ing a reasonable interpretation of Bruen’s broad and vague language.
96
When Judge Wilkinson criticized Heller in 2009,
97
he faced backlash
for attacking what many considered an originalist triumph.
98
Yet many
of his predictions have now been borne out: The Supreme Court’s Sec-
ond Amendment jurisprudence has led it into a political thicket and
empowered the judiciary to undermine legislative judgments and exper-
imentation among the states.
99
Courts have now reached divergent re-
sults regarding the constitutionality of laws regulating “ghost guns,”
100
firearms with obliterated serial numbers,
101
large-capacity magazines,
102
carrying of guns in “sensitive places,”
103
and other regulations.
104
Whether the Court chooses to approve Bianchi’s reasoning or reject it,
the future of gun regulations will likely remain unsettled.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
92
Cf. Richard M. Re, Narrowing Supreme Court Precedent from Below, 104 GEO. L.J. 921, 960–
63 (2016) (arguing that lower courts’ narrowing of Heller from below was legitimate because the
decision’s ambiguity was effectively a delegation of interpretive power to lower courts).
93
See id. at 962.
94
See Joseph Blocher & Reva B. Siegel, Guided by History: Protecting the Public Sphere from
Weapons Threats Under Bruen, 98 N.Y.U.
L. REV. 1795, 1800 (2023).
95
See Rahimi, 144 S. Ct. at 1903.
96
See Re, supra note 92, at 960.
97
J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV.
253, 256–57, 264–75 (2009).
98
E.g., Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and the
Faux Conservatism of J. Harvie Wilkinson III, 25 J.L.
& POL. 1, 1–2 (2009).
99
Wilkinson, supra note 97, at 288, 302, 315, 318.
100
Compare Def. Distributed v. Bonta, No. CV 22-6200, 2022 WL 15524977, at 2, 4–5 (C.D.
Cal. Oct. 21, 2022) (constitutional), adopted by 2022 WL 15524983 (C.D. Cal. Oct. 24, 2022), with
Rigby v. Jennings, 630 F. Supp. 3d 602, 608, 615 (D. Del. 2022) (unconstitutional).
101
Compare United States v. Reyna, No. 21-CR-41, 2022 WL 17714376, at *5 (N.D. Ind. Dec.
15, 2022) (constitutional), with United States v. Price, 635 F. Supp. 3d 455, 457 (S.D. W. Va. 2022)
(unconstitutional at the district court level), rev’d 111 F.4th 392 (4th Cir. 2024).
102
Compare Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38, 41 (1st Cir. 2024) (constitu-
tional), with Rocky Mountain Gun Owners v. Bd. of Cnty. Comm’rs, No. 22-cv-02113, 2022 WL
4098998, at *2 (D. Colo. Aug. 30, 2022) (unconstitutional).
103
Blocher & Ruben, supra note 79, at 146. See id. at 140–41 for a summary of conflicting rulings
on gun restrictions in places of worship, children’s summer camps, mass transit, and Times Square.
104
See id. at 106 & nn.25–33.