Volume 70Issue 3 Article 4
9-25-2025
Two Wrongs Don't Make a Right: The Fourth Circuit Sidesteps Two Wrongs Don't Make a Right: The Fourth Circuit Sidesteps
Supreme Court Precedent in Upholding an Assault Weapon Ban in Supreme Court Precedent in Upholding an Assault Weapon Ban in
Bianchi v. Brown Bianchi v. Brown
Gabriella Mudd
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Gabriella Mudd, Two Wrongs Don't Make a Right: The Fourth Circuit Sidesteps Supreme Court Precedent
in Upholding an Assault Weapon Ban in Bianchi v. Brown, 70 Vill. L. Rev. 557 (2025).
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(557)
TWO WRONGS DON’T MAKE A RIGHT: THE FOURTH CIRCUIT SIDE-
STEPS SUPREME COURT PRECEDENT IN UPHOLDING AN ASSAULT
WEAPON BAN IN BIANCHI V. BROWN *
Ga b r i e l l a Mu d d
**
“Courts are, after all, staffed by lawyers, not historians.”
1
i. Th e Ch o iCe beTw e e n wh aT i s riGhT a n d wh aT i s ea s y:
reCo nCi l i nG ri s k s o f Mo d e r n fi r e a rM TeCh n o l oGy w iTh Ca l l s
f o r a br o a d e r seCo n d aMe n dMe nT
In 2023, the United States experienced more mass shootings than
days of the year.
2
This frightening statistic is uniquely prevalent in the
U.S., which accounts for “76 percent of public mass shooting incidents
and 70 percent of victim fatalities” throughout thirty-five similarly situ-
ated countries.
3
From school shootings in Uvalde, Parkland, and Sandy
Hook, to the Tree of Life synagogue shooting, these massacres and more
have been facilitated by assault weapons, namely the AR-15.
4
Absent fed-
eral action, states respond to these events with assault weapon ban (AWB)
* J.k. rowlinG, harry PoTTer and The GobleT of fire (Scholastic Inc. 2000). The
titles and headings used throughout this Note are also based, in whole or in part,
on the
harry PoTTer series.
** J.D. Candidate, 2026, Villanova University Charles Widger School of Law;
B.S., 2023, Pennsylvania State University. This Note is dedicated to my parents
(Kevin and Beth), peers, and professors, without whom I would not be the writer,
student, or person I am today. I would also like to thank my fellow members of the
Villanova Law Review for making this publication possible.
1.
N.Y
. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 107 (2022) (Breyer, J.,
dissenting).
2.
See
Paul LeBlanc & Annette Choi, United States Tops 400 Mass Shootings in
2023, Cnn (July 24, 2023, 9:15 AM), www.cnn.com/2023/07/24/politics/
us-400-mass-shootings/index.html [https://perma.cc/23ZD-2KYK] (reporting, as
of July 24, 2023, there were already more than 400 mass shootings in the United
States for that year).
3.
Jason R.
Silva, Public Mass Shootings Around the World: Prevalence, Context,
and Prevention,
roCkefeller insT. of Gov’T (Feb. 20, 2024), rockinst.org/
blog/public-mass-shootings-around-the-world-prevalence-context-and-prevention
[https://perma.cc/KG2E-MUAP] (detailing the disparate impact firearms, includ-
ing assault weapons, have on the United States). For the purposes of the study,
similarly situated countries included 35 countries with governments and economies
most similar to the United States. Id. Further, the study illustrated that the United
States experiences far more mass shooting incidents than dissimilar countries. Id.
4. See Examples of Mass Shootings Involving Assault Weapons and/or Large Capacity
Magazines,
u.s. ConG., www.congress.gov/117/meeting/house/115244/
documents/HHRG-117-JU08-20221215-SD007.pdf
[
perma.cc/LW6D-
QKCQ] (last visited July 4, 2025) (providing examples of mass shootings perpe-
trated using assault weapons).
558 vi l l a n o va law re v i e w [Vol. 70: p. 557
legislation.
5
However, firearm regulations such as AWBs are becoming
increasingly difficult to uphold in light of a major shift in Second Amend-
ment jurisprudence by the Supreme Court.
6
In the Court’s view, both
legislators and judges are cabined to the actions of their counterparts at
the nation’s founding (Founding), with little regard for the soaring gun
violence the nation faces today.
7
The Second Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.”
8
For over two centuries, the Supreme
Court left Second Amendment questions untouched.
9
However, in recent
years, the Court has expanded the Second Amendment to encompass an
individual right to self-defense, permit public carry, end bump stock reg-
ulations, and more.
10
These decisions were achieved through a complete
5. See Assault Weapons and High-Capacity Magazines, everyTown suPPorT fund
(May 24, 2023), everytownresearch.org/report/assault-weapons-and-high-
capacity-magazines/ [https://perma.cc/9SYK-JAWS] (providing a detailed list of
which states have passed AWBs and similar regulations); see also Silva, supra note 3
(reporting when other countries such as Norway, New Zealand, and Canada have
faced public mass shootings involving assault weapons, they have responded
with federal AWBs); How Countries Have Legislated After Mass Shootings,
reuTers
(May 5, 2023, 9:20 AM), www.reuters.com/world/how-countries-have-legis-
lated-after-mass-shootings-2023-05-05/ [https://perma.cc/5FBA-4K89] (examining
additional countries that have passed AWBs following mass shootings, and their posi-
tive effect on lowering gun crime rates).
6.
See
Jacob D. Charles, Assault Weapon Regulations: New Legal Considerations
in Light of Bruen,
roCkefeller insT. of Gov’T (June 15, 2023), rockinst.
org/blog/assault-weapon-regulations-new-legal-considerations-in-light-of-bruen
[https://perma.cc/YWK3-QZSR] (detailing how, following New York State Rifle &
Pistol Association, Inc v. Bruen, many have disagreed whether AWBs are constitu-
tional because it is unclear if the Second Amendment encompasses assault weap-
ons, and the level of generality required when citing historical analogues); Ass’n
of N.J. Rifle & Pistol Clubs, Inc. v. Platkin, 742 F. Supp. 3d 421, 424 (D.N.J. 2024)
(“It is hard to accept the Supreme Court’s pronouncements that certain firearms
policy choices are ‘off the table’ when frequently, radical individuals possess and use
these same firearms for evil purposes.”). Judge Sheridan continued to emphasize
that “[t]his principle [stare decisis]—combined with the reckless inaction of our
governmental leaders to address the mass shooting tragedy afflicting our Nation—
necessitates the Court’s decision.” Id. For a detailed discussion on petitioners
attempting to overturn AWB legislation, see infra notes 36 & 161.
7.
See
Michael L. Smith, Historical Tradition: A Vague, Overconfident, and Mallea-
ble Approach to Constitutional Law, 88
brook. l. rev. 797, 798–99 (2023) (describing
how the text, history, and tradition test “abandons all considerations of government
interests” and was employed by the Supreme Court in Bruen to “rule[] that consider-
ations with the aim of harm reduction are irrelevant to the constitutional inquiry”).
8.
u.s. ConsT. amend. II (establishing the right to own firearms in the United
States).
9. See Clark Neily, District of Columbia v. Heller: The Second Amendment Is Back,
Baby, 2008
CaTo suP. CT. rev. 127, 127 (“For more than 200 years, the Second Amend-
ment was a sort of constitutional Loch Ness Monster: Despite occasional reported
sightings, many people—and certainly most judges—were inclined to believe it did
not really exist.”).
10.
See
District of Columbia v. Heller, 554 U.S. 570, 628 (2008) (holding “the
inherent right of self-defense has been central to the Second Amendment right”
and the right has always extended beyond military needs); N.Y. State Rifle & Pistol
2025] noTe 559
overhaul of the right, moving from a long-accepted interest-balancing
approach to the text, history, and tradition test (THT Test).
11
The Court introduced the THT Test in New York State Rifle & Pistol
Association, Inc. v. Bruen,
12
holding when the Second Amendment’s plain
text covers regulated conduct, the Constitution presumptively protects
it.
13
Further, for the government to justify a firearm regulation, it must
be consistent with the nation’s historical regulatory tradition.
14
While
Bruen’s central holding was sensible for its specific fact pattern, its ruling
is not easily applicable to the broad range of Second Amendment cases.
15
The decision opened floodgates nationwide for parties to contest vari-
ous types of firearm regulations, and lower courts struggled to answer.
16
Courts mainly grappled with questions concerning the level of generality
Bruen required, how to account for differences between 1791 and the
present, and how to perform these inquiries given their limited time and
resources.
17
Ass’n, Inc. v. Bruen, 597 U.S. 1, 32 (2022) (bolstering the right to public carry
of handguns by determining that the Second Amendment “naturally encompasses
public carry”); Garland v. Cargill, 602 U.S. 406, 410 (2024) (upholding a law that
protects use of “bump stocks,” which are essentially accessories that allow semiauto-
matic firearms to shoot at a high rate of fire comparable to a machinegun).
11.
See
Bruen, 597 U.S. at 26 (finding the interest-balancing tests and legislative
deference that are commonplace in other constitutional analyses are ill-suited to
Second Amendment questions).
12. 597 U.S. 1 (2022).
13.
See
id. at 17 (holding when the plain text of the Second Amendment covers
the challenged conduct, a court should assume that the conduct is protected by the
Constitution and cannot be regulated otherwise).
14.
See
id. (“To justify its regulation, the government may not simply posit
that the regulation promotes an important interest. Rather, the government must
demonstrate that the regulation is consistent with this Nation’s historical tradition
of firearm regulation.”).
15.
See
Note, Bruen’s Ricochet: Why Scored Live-Fire Requirements Violate the
Second Amendment, 136
harv. l. rev. 1412, 1418 (2023) [hereinafter: Bruen’s
Ricochet] (describing how “despite Bruen’s narrow facts, its holdings cast a wide
net”); Clara Fong, Kelly Percival & Thomas Wolf, Judges Find Supreme Court’s Bruen
Test Unworkable,
brennan CTr. for JusT. (June 26, 2023), www.brennancenter.
org/our-work/research-reports/judges-find-supreme-courts-bruen-test-unworkable
[https://perma.cc/8HDR-3SG6] (explaining how the THT Test is not workable for
many Second Amendment cases because of the drastically different circumstances
of today, modern firearm technology, and its ambiguity).
16. See Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights,
and the Shackles of History, 73
duke l.J. 67, 78 (2023) (detailing how more than two
dozen state and federal laws have been modified or completely struck down follow-
ing Bruen).
17.
See
Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amend-
ment Adjudication, 133
yale l.J. 99, 107 (2023) (identifying three main problems
likely to stem from Bruen’s THT Test); see also United States v. Love, 647 F. Supp. 3d
664, 670 (N.D. Ind. 2022) (discussing how Bruen’s confusing standard has resulted
in “mountains of work for district courts”); United States v. Bullock, No. 18-CR-165,
2022 WL 16649175, at *3 (S.D. Miss. Oct. 27, 2022) (questioning whether the district
court judge should appoint a historian to assist with administering the THT Test);
United States v. Kelly, No. 22-CR-00037, 2022 WL 17336578, at *4 n.6 (M.D. Tenn.
Nov. 16, 2022) (explaining why the analysis required by the THT Test is better suited
560 vi l l a n o va law re v i e w [Vol. 70: p. 557
Shortly after the inception of the THT Test, United States v. Rahimi
18
prompted the Court to confront these concerns.
19
In Rahimi, the Court
faced the challenge of reconciling the THT Test’s history-based frame-
work with the delicate issue of disarming domestic abusers to reach a
common sense holding due to a lack of historically similar regulations.
20
Instead, to reach its desired conclusion, the Court broadened the level
of generality under which analogues can be found.
21
While this decision
loosened the constraints of the THT Test and allowed courts to uphold
more common sense firearm regulations, it did little to address the
seemingly limitless attenuation permitted between current and historical
laws.
22
Courts across the country have continued to struggle with the
difficult circumstances effectuated by the THT Test as they attempt to
evaluate common sense firearms restrictions, without accounting for the
unique needs of their state.
23
This Note analyzes one of these cases, Bianchi v. Brown,
24
in which the
Fourth Circuit held that AWBs are constitutional, finding assault weapons
are not protected by the Second Amendment and that the United States
to historians rather than litigants); Fraser v. Bureau of Alcohol, Tobacco, Firearms
& Explosives, 672 F. Supp. 3d 118, 137 n.20 (E.D. Va. 2023) (noting how the THT
Analysis is difficult to apply for non-historians); State v. Philpotts, 194 N.E.3d 371,
373 (Ohio 2022) (Brunner, J., dissenting) (opining appellate courts should not be
the fact-finders when applying the THT Test); cf. Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215, 253 (2022) (discussing the interaction of historical regulation
of an activity with the permissibility of regulating such activity in the modern day).
18.
602 U.S. 680 (2024).
19.
See id. at 698 (alluding to the idea that the Fifth Circuit neglected to follow
common sense when striking down a statute that disarmed domestic abusers).
20.
See
United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023), rev’d, 602 U.S.
680 (2024) (concluding the challenged statute was an “outlier[ ] that our ancestors
would never have accepted” (alteration in original) (quoting N.Y. State Rifle & Pis-
tol Ass’n, Inc. v. Bruen, 597 U.S. 1, 30 (2022) (discussing standards for comparing
a statute to historical analogues))); Note, United States v. Rahimi, 138
harv. l. rev.
325, 332 (2024) [hereinafter: Rahimi Note] (arguing Rahimi “is better read as a
course correction in the Court’s Second Amendment jurisprudence than the clari-
fication it purports to be” because Rahimi would likely have been decided differently
if the Court adhered to Bruen, and vice versa).
21.
See
Bianca Corgan, Conundrums of Constraint: United States v. Rahimi and
the Future of the Bruen Test,
harv. l. rev.: bloG (July 21, 2024), harvardlaw-
review.org/blog/2024/07/conundrums-of-constraint-united-states-v-rahimi-and-
the-future-of-the-bruen-test/ [https://perma.cc/N9BX-RSYK] (detailing how the
Rahimi Court broadened the scope of generality suggested by Bruen to find suffi-
cient historical analogues to uphold the statute).
22.
See
Rahimi Note, supra note 20, at 334 (discussing how although “Rahimi is
a victory for those who support more restrictive gun laws, it is clear that the larger
confrontation will persist”).
23.
For fur
ther discussion of post-Rahimi circuit court decisions, see infra
notes 34 & 160; see also Bill Frist, Clay Stauffer & Alex Jahangir, Gun Violence Is the
No. 1 Killer of Children. Here Are Commonsense Steps to Address It,
usa Today (Apr. 21,
2023, 5:00 AM), www.usatoday.com/story/opinion/voices/2023/04/21/
common-sense-steps-prevent-gun-violence-top-killer-kids/11688433002/ [https://
perma.cc/BG7M-2NKS] (identifying the term “commonsense” as the name for a set
of firearm policies that are more pragmatic and focused on current societal issues).
24.
111 F
.4th 438 (4th Cir. 2024).
2025] noTe 561
has a deeply rooted history of regulating such weapons.
25
Ultimately,
this Note argues that although the Fourth Circuit accounted for interest-
balancing considerations, it nevertheless correctly concluded that AWBs
do not violate the Second Amendment based on its examination of the
nation’s historical tradition and adherence to the Supreme Court’s
recent shift to a history-centered framework for Second Amendment
analysis.
26
Furthermore, this Note argues legislative deference should
act as a guidepost when the THT Test does not yield a clear result.
27
Part II summarizes the disparity in AWBs across the country and
Supreme Court precedent leading up to Bianchi. Part III provides the
facts and procedural history of Bianchi. Part IV offers an overview of the
irreconcilable approaches of the majority and dissent in Bianchi. Part V
acknowledges that while Bianchi incorrectly applied Supreme Court prec-
edent, it found sufficient historical analogues according to the reduced
standard of similarity permitted by Rahimi. Part VI discusses the impact
of Bianchi and why continuing with an attenuated history-based frame-
work for Second Amendment questions will prove deleterious for circuit
courts and the American people alike.
ii. as k us no Qu e sTi o n s, a n d we’l l Te l l yo u no li e s: hi sTo r y
o f awbs a n d seCo n d aMe n dMe nT Ju r i sPr u d e nCe
This Part summarizes the history of assault weapon regulations in
the United States and the broader landscape of Second Amendment
jurisprudence. Section A focuses on the history of AWBs, and section
B focuses on the Supreme Court’s interpretation of the Second Amend-
ment.
A. Time is Making Us Fools Again: History of Assault Weapon Regulation
Firearm regulations were not always hotly contested and highly
polarizing; just two decades ago there was a nationwide AWB: the Public
Safety and Recreational Firearms Use Protection Act.
28
However, since
25. See id. at 448 (holding AWBs are not covered by the plain text of the Sec-
ond Amendment and explaining the nation has a long tradition of regulating such
weapons). For a discussion of the Bianchi court’s reasoning in upholding Maryland’s
AWB, see infra Part IV.
26.
For a discussion of how
, although the Fourth Circuit found sufficient his-
torical analogues to satisfy the THT Test, it ultimately veered off course with its use
of interest-balancing considerations, see infra Part V.
27.
For a discussion of how legislative defer
ence can be a helpful tool for lower
courts until concerns surrounding the THT Test are addressed, see infra Part VI.
28.
See
Public Safety and Recreational Firearms Use Protection Act, H.R. 4296,
103d
Cong. (1994) (prohibiting the manufacture, transfer, or possession of semi-
automatic assault weapons as defined under the Act); Ron Elving, The U.S. Once
Had a Ban on Assault Weapons—Why Did It Expire?, nPr (Aug. 13, 2019, 1:57 PM),
www.npr.org/2019/08/13/750656174/the-u-s-once-had-a-ban-on-assault-
weapons-why-did-it-expire [https://perma.cc/LS6Q-7JF7] (noting how the Public
Safety and Recreational Firearms Use Protection Act was created in light of the
Stockton schoolyard shooting, in which a lone gunman shot and killed five children
562 vi l l a n o va law re v i e w [Vol. 70: p. 557
the Act expired in 2004, Congress has struggled to renew or otherwise
pass federal assault weapon legislation.
29
Accordingly, these decisions
are left to state legislators to decide how to tackle the problem, if at all.
30
Currently, ten states and the District of Columbia prohibit assault weap-
ons, while remaining states vary drastically in their regulation of assault
weapon ownership and usage.
31
While the term “assault weapon” is not
consistently defined, these bans typically prohibit the purchase and
possession of semi-automatic firearms such as the AR-15 and AK-47.
32
and wounded thirty-one others in less than three minutes using an assault rifle);
see also Richard Rosenfeld, Overview and Reflections, in
The 1994 CriMe bill: leGaCy
and lessons (2019), counciloncj.foleon.com/reports/crime-bill/over-
view-and-reflections [https://perma.cc/Q7SS-CE8A] (noting the federal AWB was
a part of the Violent Crime Control and Law Enforcement Act of 1994, the largest
crime bill in United States history).
29.
See
Elving, supra note 28 (explaining how the Act had a sundown provi-
sion in which it would need to be renewed after ten years). When the ban expired
in 2004, legislators put up little fight to renew the Act, likely due to decreased
crime, other pressing agendas, and the GOP’s control of the House. Id. Since
2004, many have attempted to pass federal firearm regulations, such as Repre-
sentative Feinstein and most recently President Biden, however none have come
close to being successful. Id.; see also Kierra Frazier, Biden Renews Push to Ban Assault
Weapons in Wake of Nashville Shooting,
PoliTiCo (Mar. 27, 2023, 3:27 PM), https://
www.politico.com/news/2023/03/27/biden-assault-weapons-ban-nashville-shoot-
ing-00089050 [https://perma.cc/V5F2-VFTA] (reporting on President Biden’s
unsuccessful attempts at passing an AWB). See Fact Sheet: Two Years of the Bipartisan
Safer Communities Act,
u.s. deP’T of JusT. (June 25, 2024), www.justice.gov/
opa/pr/fact-sheet-two-years-bipartisan-safer-communities-act [https://perma.cc/
LB6C-MB5S] (explaining the Bipartisan Safer Communities Act (BSCA), passed in
2022, enhanced background checks and placed stricter regulations on the firearm
market). However, the Act did not include regulations on assault weapons. Id.
30.
See
Assault Weapons,
Giffords l. CTr., giffords.org/lawcenter/gun-
laws/policy-areas/hardware-ammunition/assault-weapons/ [https://perma.cc/
FC82-VB99] (last visited July 4, 2025) (explaining how “[i]n the absence of federal
legislation regulating assault weapons, states must take it upon themselves to protect
their residents from mass shootings by regulating or banning the sale and manufac-
ture of these uniquely dangerous weapons”).
31.
See
Which States Prohibit Assault Weapons?,
everyTown suPPorT fund (Jan. 15,
2025), everytownresearch.org/rankings/law/assault-weapons-prohibited/
[https://perma.cc/9JFC-2529] (reporting California, Connecticut, Delaware, Illi-
nois, Massachusetts, New York, New Jersey, Maryland, Rhode Island, and Wash-
ington currently have AWBs in place); Assault Weapons in Washington DC,
Giffords
l. C
Tr. (Apr. 15, 2024), giffords.org/lawcenter/state-laws/assault-weap-
ons-in-washington-dc/ [https://perma.cc/N667-VSE3] (noting Washington D.C.
effectively has an AWB as it deems assault weapons unregistrable); Gun Safety Policies
Save Lives,
everyTown suPPorT fund (Jan. 15, 2025), everytownresearch.org/
rankings/ [https://perma.cc/2JB6-387U] (offering a comprehensive ranking of
states with the strongest to weakest firearm regulations).
32.
See
Assault Weapons and High-Capacity Magazines, supra note 5 (describ-
ing how AWBs typically focus on weapons that are semi-automatic and have high-
capacity magazines, defined as a magazine that can hold ten rounds of ammunition,
because they fire at four times the muzzle velocity of a handgun and allow users to
fire more rounds over short period without pausing to reload); see also Jeff Daniels,
Definition of What’s Actually an ‘Assault Weapon’ is a Highly Contentious Issue, CnbC
(Feb. 21, 2018, 7:08 PM), www.cnbc.com/2018/02/21/definition-of-whats-
an-assault-weapon-is-a-very-contentious-issue.html [https://perma.cc/PT94-L4C5]
2025] noTe 563
A survey of state assault weapon bans reveals a consistent driving force
behind their enactment: deadly mass shootings carried out by a lone
assailant.
33
Courts presiding over these states consistently uphold these
bans and face backlash similar to the Fourth Circuit following its Bianchi
decision.
34
B. The Best Way to Predict the Future is to Create It: Second Amendment
Jurisprudence of the Supreme Court
The Supreme Court began its overhaul of Second Amendment juris-
prudence in District of Columbia v. Heller,
35
a 2008 case striking down
Washington D.C.’s ban on handguns.
36
Courts had minimal guidance on
how to analyze Second Amendment questions before Heller was decided,
though many defaulted to the standard articulated in United States v. Miller,
37
(describing how there is not a clear, agreed-upon definition of “assault weapons”
and how its terms vary between gun and gun control advocates, as well as by state).
33.
See
The AR-15 is the Weapon of Choice for Mass Shooters. It’s Time to Reinstate the
Bipartisan Congressional Assault Weapons Ban.,
everyTown (May 12, 2023), https://
www.everytown.org/press/the-ar-15-is-the-weapon-of-choice-for-mass-shooters-
its-time-to-reinstate-the-bipartisan-congressional-assault-weapons-ban/ [https://
perma.cc/8HXJ-BCB3] (describing how assault weapons have become the premier
choice for assailants because they fire substantially more shots in short periods
of time, and are extremely threatening to police officers); Examples of Mass Shoot-
ings Involving Assault Weapons and/or Large Capacity Magazines, supra note 4 (citing
recent mass shootings including the Aurora, Sandy Hook, Pulse nightclub, Suther-
land Springs church, Tree of Life synagogue, Parkland school, Uvalde school, and
Walmart shootings that were all perpetrated by an assault weapon); see also Alex Lars
Lundberg, James Alan Fox, Hassan Mohammad, Maryann Mason, Doreen Salina,
David Victorson, Ruben Parra-Cardona & Lori Ann Post,
Public Mass Shootings: Coun-
terfactual Trend Analysis of the Federal Assault Weapons Ban,
JMir Pub. healTh & sur-
veillanCe, Sept. 2024, at 1, 6 (noting gun violence fatalities have increased since the
expiration of the Federal Assault Weapon Ban (FAWB) due, at least in part, to the
fractured state of assault weapons regulation). The authors conclude that “a con-
tinuation of the FAWB would have reduced the rate of public mass shootings.” Id.
34.
See
Ocean State Tactical, LLC v. Rhode Island, 95 F.4th 38, 41 (1st Cir.
2024) (upholding Rhode Island’s ban on large capacity magazines (LCMs)); Del.
State Sportsmen’s Ass’n, Inc. v. Del. Dep’t of Safety & Homeland Sec., 108 F.4th
194, 197 (3d Cir. 2024) (denying request for preliminary injunction on Delaware’s
ban of assault weapons and LCMs); Bevis v. City of Naperville, 657 F. Supp. 3d 1052,
1077 (N.D. Ill. 2023), aff’d, 85 F.4th 1175 (7th Cir. 2023), cert. denied sub nom., Harrel
v. Raoul, 144 S. Ct. 2491 (2024) (upholding municipal AWB); Viramontes v. Cook
Cnty., No. 24-1437, 2025 WL 1553896, at *1 (7th Cir. June 2, 2025) (affirming dis-
trict court’s dismissal of petitioner’s constitutional challenge to a county’s AWB).
The noted case arose as a challenge to the Maryland Firearm Safety Act of 2013, a
state AWB enacted by Maryland legislators in the absence of federal regulation. See
Bianchi v. Brown, 111 F.4th 438, 441 (4th Cir. 2024) (upholding Maryland’s AWB).
35.
554 U.S. 570 (2008).
36.
See
id. at 635 (finding the Second Amendment protects an individual’s right
to own a firearm for self-defense and other lawful purposes, and therefore striking
down Washington D.C.’s ban on handguns); see also Bruen’s Ricochet, supra note 15,
at 1416 (describing how lower courts interpreted Heller to prescribe a “means-end
scrutiny” evaluation of Second Amendment questions (quoting United States v.
Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010))).
37.
307 U.S. 174 (1939).
564 vi l l a n o va law re v i e w [Vol. 70: p. 557
which focused on “reasonableness.”
38
Under this standard, courts would
analyze whether the regulation had a reasonable relationship to preserv-
ing a militia.
39
In Heller, the Court completely altered this framework,
holding the Second Amendment protects an individual’s right to possess
firearms for historically lawful purposes, centering around the right of
self-defense inside of the home.
40
As for the types of weapons the Sec-
ond Amendment protects, Heller built upon the idea that weapons must
be in “common use” as first discussed in Miller, and went further to clar-
ify that “dangerous and unusual weapons” fall outside the scope of the
amendment.
41
38. See id. at 178 (holding because owning a sawed-off double barrel shotgun
does not have a reasonable relationship to preserving a well-regulated militia, the
weapons were outside the protection of the Second Amendment); see also Patrick
J. Charles, Second Amendment,
briTanniCa (July 25, 2025), www.britannica.
com/topic/Second-Amendment [https://perma.cc/M8BH-8AW9] (noting how,
even in Miller, the Court “avoided addressing the constitutional scope of the Second
Amendment,” narrowly holding that a shotgun having a barrel of less than eighteen
inches in length was not covered by the right).
39.
See
Adam Winkler, Scrutinizing the Second Amendment, 105
MiCh. l. rev. 683,
716–19 (2007) (describing how the reasonable regulation standard was distinguish-
able from the rational basis review standard common in Equal Protection cases
because it focused on the reasonableness of the relationship to military use, rather
than governmental interest). The author notes the reasonableness standard was
arguably more rigorous than rational basis review, but still very deferential in prac-
tice. Id.; see also William Reach, Note, The Collective Right Endures: Pre-Heller Precedent
and Our Understanding of the Modern Second Amendment, 31
wM. & Mary bill rTs. J.
607, 608 (2022) (explaining how Miller gave “individuals and states a justification to
challenge federal assault weapons bans and other regulations, so long as the parties
can present a reasonable relationship to a militia function”).
40.
See
Heller, 554 U.S. at 599 (finding self-defense “was the central component of
the right itself”). The Court held the right “surely elevates above all other interests
the right of law-abiding, responsible citizens to use arms in defense of hearth and
home.” Id. at 635. In light of this expansive understanding of the Second Amend-
ment, the Court clarified that the right is not unlimited, stating that its opinion
“should [not] be taken to cast doubt on longstanding prohibitions on the posses-
sion of firearms by felons and the mentally ill, or laws forbidding the carrying of fire-
arms in sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms.” Id. at 626–27. Fur-
ther, the Heller Court held that the handgun ban in question was prohibited by the
Second Amendment. Id. at 629; see also Emma Long, Why So Silent? The Supreme Court
and the Second Amendment Debate After DC v. Heller,
eur. J. aM. sTud., Summer 2017,
at 1, 10–12 (arguing the Court’s reluctance to hearing Second Amendment cases
following Heller likely stemmed from the decision creating more confusion than
clarity, the complex nature of the topic, and resistance to entrenching polarizing
viewpoints into federal law).
41. See Heller, 554 U.S. at 627 (first quoting Miller, 307 U.S. at 179; and then
quoting 4
williaM blaCksTone, CoMMenTaries *148–49) (expanding on the limita-
tions to the Second Amendment, the Court expressed “the sorts of weapons pro-
tected were those ‘in common use at the time’” (quoting Miller, 307 U.S. at 179)).
The Court continued to discuss the role of historical tradition: “We think that lim-
itation is fairly supported by the historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons.’” Id. (quoting 4
williaM blaCksTone, CoMMenTaries
*148–49).
2025] noTe 565
Shortly after Heller, in McDonald v. City of Chicago,
42
the Court deter-
mined that the Second Amendment applies to state and local government
through the Fourteenth Amendment and is accordingly a “fundamental
right[].”
43
Following Heller and McDonald, circuit courts interpreted the
Supreme Court’s decisions to set forth a two-step analysis akin to means-
end scrutiny.
44
First, a court would consider whether the burdened
person, firearm, or place fell under the Second Amendment.
45
If it did,
the court would assess how burdensome the regulation was in order to
determine the appropriate level of scrutiny—and, subsequently, whether
the regulation passed constitutional muster.
46
Courts typically applied
intermediate scrutiny, meaning the fit between the challenged regula-
tion and governmental interest needed “to be reasonable,” but “a perfect
fit [was] not required.”
47
This method of analysis continued uninter-
rupted for almost a decade, until the Supreme Court offered substantial
42. 561 U.S. 742 (2010).
43.
See
id. at 778 (“[I]t is clear that the Framers and ratifiers of the Fourteenth
Amendment counted the right to keep and bear arms among those fundamental
rights necessary to our system of ordered liberty.”). Ultimately, the McDonald Court
remanded the case back to the Seventh Circuit to determine whether Chicago’s
handgun ban violated an individual’s right to keep and bear arms for self-defense.
Id. at 791.
44. See
sarah herMan PeCk, ConG. rsCh. serv., R44618, PosT-Heller seCond
a
MendMenT JurisPrudenCe 12–13 (2019) (explaining how circuit courts widely applied
this two-step approach post-Heller).
45.
See
id. at 13–15 (summarizing courts mostly engaged in a textual and histor-
ical analysis of the right to determine whether the challenged regulation burdened
protected activity). Regardless of whether courts found that the Second Amend-
ment applied to the challenged regulation, some continued on to the means-end
analysis out of an “abundance of caution.” Id. at 13 (quoting Nat’l Rifle Ass’n of
Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 204
(5th Cir. 2012)).
46.
See
id. at 15–16 (emphasizing Heller did not provide guidance on how to
analyze Second Amendment questions, nor what standard would be most appro-
priate). Though most circuit courts applied the means-end approach, some simply
considered whether the challenged regulation was “longstanding” or “presump-
tively lawful,” and concluded their analysis there. Id. at 14; see also N.Y. State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 18 (2022) (detailing the widely accepted use
of means-end analysis and intermediate scrutiny). Heller did not specify what degree
of scrutiny was appropriate in deciding Second Amendment cases, so courts would
determine this based on the degree to which the regulation burdened the right.
PeCk, supra note 44, at 16. While this framework was the predominant method of
analysis employed by courts, some sidestepped the means-end aspect by considering
whether the regulation was “presumptively lawful” according to Heller, implicating
inquiries surrounding the weapon’s “common use” and “dangerous and unusual”
status. Id. at 14. Further, other courts have attempted to pair Second Amendment
analysis with the First Amendment’s framework to develop a more cohesive stan-
dard of review. Id. at 16.
47.
United States v
. Staten, 666 F.3d 154, 162 (4th Cir. 2011) (describing how
“intermediate scrutiny does not require that a regulation be the least intrusive
means of achieving the relevant government objective, or that there be no bur-
den whatsoever on the individual right in question” (quoting United States v. Mas-
ciandaro, 638 F.3d 458, 474 (4th Cir. 2011))); see Bruen, 597 U.S. at 19 (explaining
intermediate scrutiny was largely agreed upon as the correct standard of review);
Bruen’s Ricochet, supra note 15, at 1416–17 (describing how courts typically applied
566 vi l l a n o va law re v i e w [Vol. 70: p. 557
clarifications in Bruen on how it intended Heller to be read and the proper
framework to be used moving forward.
48
The Bruen Court ushered in a new era of Second Amendment
jurisprudence, clarifying both its limitations and the proper analytical
framework.
49
Bruen concerned a New York law that required individu-
als to show a special need for self-defense to obtain a license to carry
a concealed handgun in public.
50
The Court found the “special need”
requirement to be unconstitutional because it restricted conduct
expressly protected by the Second Amendment and lacked support in
historical firearm regulation.
51
In its analysis, the Court determined the
means-end approach popular in lower courts to be “one step too many,”
yet seemingly replaced it with a another two-part test.
52
Under Bruen’s THT Test, courts first must consider whether the
plain text of the Second Amendment protects the activities being regu-
lated.
53
If it does, then “the government must affirmatively prove that
intermediate scrutiny, though their deference varied greatly depending on the ide-
ology of the judge).
48.
See
Bruen, 597 U.S. at 17 (declining to adopt the two-part means-end
approach and opting for an analysis that considers the “Nation’s historical tradition
of firearm regulation,” rather than a governmental interest).
49.
Id.
at 60 (holding New York’s proper-cause requirement violated the Four-
teenth Amendment by preventing law-abiding citizens with ordinary self-defense
needs from exercising their Second Amendment right to keep and bear arms in
public for the purpose of self-defense). The Bruen Court opined that the second
step of the popular means-end approach was inconsistent with Heller and McDonald.
Id. at 19; see also id. at 10 (expanding the Second Amendment to cover carrying a
gun outside of the home for purposes of self-defense); Silvester v. Becerra, 138 S.
Ct. 945, 952 (2018) (Thomas, J., dissenting) (expressing concern that “[t]he right
to keep and bear arms is apparently this Court’s constitutional orphan” because the
Court did not grant certiorari in the case).
50.
See
Bruen, 597 U.S. at 12 (describing the challenged law, which provided:
“[T]o carry a firearm outside his home or place of business for self-defense, [an indi-
vidual] must obtain an unrestricted license to ‘have and carry’ a concealed ‘pistol or
revolver’” (quoting
n.y. Penal law § 400.00(2)(f) (Consol. 2022))). “If an applicant
cannot make that showing, he can receive only a ‘restricted’ license for public carry,
which allows him to carry a firearm for a limited purpose, such as hunting, target
shooting, or employment.” Id.
51.
See
id. at 39–40 (concluding New York citizens do not need to prove that
they are entitled to exercise their Second Amendment right). As for historical ana-
logues, the Court found that “[a]part from a few late-19th-century outlier jurisdic-
tions, American governments simply have not broadly prohibited the public carry
of commonly used firearms for personal defense.” Id. at 70.
52. See id. at 19 (concluding Heller and McDonald did not support applying
means-end scrutiny in the Second Amendment context). The Court then explained
that Heller should not be interpreted to elicit interest-balancing because the opinion
was rooted in textual analysis and historical canvassing. Id. at 20–23; see also id. at
29 (describing how the THT Test requires courts to examine the text of the Second
Amendment and the historical tradition of firearm regulation when assessing fire-
arm legislation, using “how and why the regulations burden a law-abiding citizen’s
right to armed self-defense” as key metrics).
53.
See
id. at 24 (explaining the first step purported by Heller is still applicable,
in which the Court first must determine whether the conduct is covered by the plain
text of the Second Amendment).
2025] noTe 567
its firearms regulation is part of the historical tradition” to justify the
law.
54
Most importantly, Bruen declared that interest-balancing has no
place in Second Amendment questions, as the Second Amendment “is
the very product of an interest balancing by the people.”
55
Even so, Bruen
acknowledged that determining whether modern firearm regulations are
consistent with the Second Amendment’s text and historical understand-
ing is no simple task, especially in cases where “unprecedented societal
concerns or dramatic technological changes” are present.
56
Bruen left judges and attorneys alike confused by its test, leading
many to expect clarification in Rahimi, the Court’s first opportunity to
apply the THT Test.
57
Rahimi reached the Supreme Court after the Fifth
Circuit Court of Appeals struck down a federal law barring persons sub-
ject to domestic violence orders from possessing firearms.
58
The Court
reversed the Fifth Circuit, holding that an extremely violent individual
with an extensive history of abusing his ex-girlfriend should not have
access to firearms.
59
Beyond this common sense conclusion, Rahimi did
54. Id. at 19 (determining this historical inquiry should replace the formerly
used interest-balancing analysis). Further, the Court clarified that “analogical rea-
soning under the Second Amendment is neither a regulatory straightjacket nor a
regulatory blank check,” attempting to strike a balance between upholding laws
that “our ancestors would never have accepted” and identifying historical analogues
rather than twins. Id. at 30 (quoting Drummond v. Robinson, 9 F.4th 217, 226 (3d
Cir. 2021)). The Court concluded that “even if a modern-day regulation is not a
dead ringer for historical precursors, it still may be analogous enough to pass consti-
tutional muster.” Id. In performing such historical analysis, the guideposts should
be “how and why the regulations burden a law-abiding citizen’s right to armed
self-defense.” Id. at 29 (emphasis added).
55. Id. at 26 (quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008))
(emphasizing intermediate scrutiny and judicial deference have no place in Second
Amendment analysis because the balancing done through the “tradition[] of the
American people” is what “demands our unqualified deference”).
56.
Id.
at 27 (explaining while the historical analogues in Bruen and Heller were
relatively straightforward, the inquiry in other situations may require more attenua-
tion through a reasoning-by-analogy approach). While the Court acknowledged anal-
ysis becomes much more difficult when these conditions are present, it did not offer
further guidance beyond stating that the approach becomes “more nuanced.” Id.
57.
See
United States v. Rahimi, 602 U.S. 680, 741 (2024) (Jackson, J., con-
curring) (illustrating the confusion occurring in lower courts attempting to apply
Bruen). Justice Jackson observed that inconsistency among lower courts—which had
“come to conflicting conclusions on virtually every consequential Second Amend-
ment issue to come before them”—suggested “there is little method to Bruen’s mad-
ness.” Id. at 742–43 (quoting Brief for Second Amendment Law Scholars as Amici
Curiae in Support of Petitioner at 4–5, United States v. Rahimi, 602 U.S. 680 (2024)
(No. 22-915)).
58. See United States v. Rahimi, 61 F.4th 443, 460–61 (5th Cir. 2023) (finding
despite domestic violence surely existing in the eighteenth century, there were
hardly any laws concerning the issue and distinctly no laws that disarmed domestic
abusers). Therefore, the Fifth Circuit struck down the law and vacated Rahimi’s
conviction. Id. at 461.
59. See Brief for the United States, United States v. Rahimi, 144 S. Ct. 1889 (No.
22-915), 2023 WL 5322645, at *2 (detailing the violent history of Rahimi, including
six different firearm crimes, in addition to threats to shoot several people, ranging
from ex-girlfriends to innocent bystanders).
568 vi l l a n o va law re v i e w [Vol. 70: p. 557
little to assuage concerns surrounding the new Second Amendment
framework.
60
Rather than directly address the shortcomings of the THT
Test, the Court tacitly expanded the scope of historical comparison to
account for a modern hardship such as armed domestic abusers.
61
The 8-1 majority found the Fifth Circuit took too narrow of an
approach, holding Bruen established a much broader level of generality.
62
The key takeaway from Rahimi is instead of being “consistent with the
Nation’s historical tradition of firearm regulation,” a regulation must
only be “consistent with the principles that underpin our regulatory tra-
dition.”
63
Justice Thomas, the author of Bruen, insisted in a lone dissent
that the Fifth Circuit applied the THT test as intended while the majority
got it wrong, emphasizing the cited historical analogues’ inability to meet
Bruen’s more stringent standard.
64
Overall, while Rahimi took steps to
loosen the constraints of Bruen, the THT Test remains just as malleable
as before, allowing for vastly different conclusions.
65
60. See Rahimi, 602 U.S. at 743 (Jackson, J., concurring) (asserting the test estab-
lished in Bruen is not only burdensome to already over-extended courts, but that
it has failed to produce “consistent, principled results” (quoting Brief for Second
Amendment Law Scholars, supra note 57, at 4)). Justice Jackson further cautioned
the Court: “Make no mistake: Today’s effort to clear up ‘misunderst[andings],’ is a
tacit admission that lower courts are struggling. In my view, the blame may lie with
us, not with them.” Id. at 741 (alteration in original) (citation omitted) (quoting id.
at 691 (majority opinion)).
61. See id. at 692 (majority opinion) (emphasizing the historical analogue only
needs to be “relevantly similar” to the challenged legislation (quoting Bruen, 597
U.S. at 29)). The court acknowledged that “some courts have misunderstood the
methodology of our recent Second Amendment cases. These precedents were not
meant to suggest a law trapped in amber. . . . Holding otherwise would be as mis-
taken as applying the protections of the right only to muskets and sabers.” Id. at
691–92. Further, the Court solidified the notion that “[w]hy and how the regulation
burdens the right are central to this inquiry.” Id. at 692.
62.
See
id. at 682 (citing surety and “going armed” laws as primary histori-
cal analogues, despite these analogues not being applicable to the proper cause
requirement in Bruen); Corgan, supra note 21 (analyzing the broader reading of
Bruen undertaken by the Rahimi Court and discussing the attenuated, piecemeal
approach used to uphold the challenged regulation).
63. Rahimi, 602 U.S. at 689, 692 (emphasis added) (quoting Bruen, 597 U.S. at
24) (discussing the attenuation permitted by the THT Test).
64.
See
id. at 752 (Thomas, J., dissenting) (finding “the Government does not
identify even a single regulation with an analogous burden and justification”). Jus-
tice Thomas argued surety laws were not analogous to the statute at issue as they
“imposed a materially different burden” and “did not alter an individual’s right to
keep and bear arms.” Id. at 764. In Justice Thomas’ eyes, the only way to disarm
violent offenders is through criminal prosecution. Id. at 777.
65. See Corgan, supra note 21 (emphasizing the seven opinions of Rahimi
hardly support a clear, easy to apply test); see also Smith, supra note 7, at 799 (noting
how “[t]he historical tradition approach also leaves multiple avenues for attorneys
and courts to frame and misrepresent historical evidence in ways that support their
preferred outcomes”). Smith further describes the malleability of the THT Test
in discussing the “multiple layers of discretion through which courts can pick and
choose.” Id. at 837–38. For further discussion of the effects of Rahimi on the THT
Test, see infra note 153.
2025] noTe 569
iii. i di d My wa iTi nG: is s u i nG iTs lo nG-awa iTe d en ba nC deCi s i o n
Over a decade ago, Maryland’s legislature enacted the Firearms
Safety Act of 2013 (Act) as a response to recent mass shootings and to
combat increasing gun violence in the state.
66
While the Act addressed
several aspects of Maryland’s Second Amendment jurisprudence, its
extensive regulations on assault weapons, specifically, were at issue in
Bianchi.
67
In November of 2020, a group of petitioners sued Maryland’s
Attorney General and Secretary of State Police under 42 U.S.C. § 1983,
alleging the Act to be unconstitutional in a facial challenge.
68
The
petitioners contended the Act’s general prohibition on the sale and pos-
session of certain military-style “assault weapons” was unconstitutional
under the Second Amendment because it infringed upon the right of
law-abiding citizens to keep and bear commonly possessed firearms for
defense of self and family.
69
Petitioners sought a declaratory judgment
acknowledging Maryland residents have a fundamental right to possess
and use assault weapons and that the Act prevented them from exercis-
ing such right, and injunctive relief prohibiting enforcement of the Act
and related regulations.
70
66. See Bianchi v. Brown, 111 F.4th 438, 441 (4th Cir. 2024) (noting the rea-
soning underlying the challenged regulations); id. at 473 (J. Diaz, concurring)
(highlighting the Maryland legislature acted in response to the Sandy Hook School
Shooting, where twenty children and six staff members were gunned down by an
individual using an AR-15 style semi-automatic rifle).
67.
See
Md. Code ann., CriM. law § 4-303 (2025) (prohibiting the sale, purchase,
possession, transfer, or transportation of assault weapons in Maryland). The weap-
ons covered under the Act include assault long guns, assault pistols, and copycat
weapons that fall into six delineated categories.
CriM. § 4-301; see also Bianchi, 111
F.4th at 441 (“This case is about whether the Act’s general prohibition on the sale
and possession of certain military-style ‘assault weapons,’ including the AR-15, the
AK-47, and the Barrett .50 caliber sniper rifle, is unconstitutional under the Second
Amendment.”).
68.
See
Bianchi, 111 F.4th at 443 (noting the petitioners included “three Mary-
land residents who allege that they are legally eligible to possess and acquire fire-
arms, three nonprofit gun rights organizations to which the residents belong, and a
licensed firearms dealer based in Maryland”). Petitioners brought a § 1983 action for
a deprivation of civil rights and mounted a facial challenge to the Act, which the court
described as the “most difficult challenge to mount successfully.” Id. at 443, 452 (quot-
ing Rahimi, 602 U.S. at 693) (“To succeed in a typical facial attack, [appellants] would
have to establish ‘that no set of circumstances exists under which [the statute at issue]
would be valid,’ or that the statute lacks any ‘plainly legitimate sweep.’” (alterations in
original) (quoting United States v. Stevens, 559 U.S. 460, 472 (2010))).
69.
See
id. at 443 (citing the crux of the petitioners’ argument); Complaint
for Declaratory and Injunctive Relief at 16–19, Bianchi v. Frosh, No. 20-CV-03495
(D. Md. Dec. 1, 2020) (The petitioners argued that, through McDonald, the Second
Amendment is “is fully applicable to the States through the Fourteenth Amend-
ment” and is a fundamental right); id. at 2–3 (arguing the petitioners are “legally
eligible” and have a “fundamental, constitutionally guaranteed right” to possess the
firearms covered by the Act).
70.
See
Complaint for Declarator
y and Injunctive Relief, supra note 69, at
14–16 (outlining reasons why petitioners desired to own the banned weapons,
such as residing in dangerous areas, previous home robberies, and enjoyment of
570 vi l l a n o va law re v i e w [Vol. 70: p. 557
At the time of the initial filing, the petitioners’ argument was fore-
closed by Kolbe v. Hogan,
71
a pre-Bruen decision in which the Fourth
Circuit upheld the Act after concluding that the Second Amendment
did not reach the weapons in question.
72
Accordingly, the district court
dismissed the case, and the petitioners appealed.
73
Following the Fourth
Circuit Court of Appeals’ affirmance of the district court’s dismissal, the
petitioners filed for writ of certiorari to the Supreme Court in 2021.
74
The Court postponed remanding the case for over a year until one
week after it released its Bruen decision, pointedly calling for the Fourth
Circuit to reconsider Bianchi in light of the major changes to Second
Amendment analysis Bruen heralded.
75
The prolonged nature of Bianchi’s procedural history continued
upon its remand to the Fourth Circuit.
76
A panel of three Fourth Circuit
judges heard oral argument on December 6, 2022, but rather than issuing
an opinion, the court voted on January 12, 2024 to rehear the case en banc,
recreational shooting). Reasons such as these are among the most common lawful
uses of the regulated weapons. Id. at 13; see also id. at 20–21 (outlining the relief the
petitioners were seeking).
71.
849 F
.3d 114 (4th Cir. 2017).
72.
See
id. at 130 (finding that even if the Second Amendment reached the
weapons in question, the Act survived intermediate scrutiny); Bianchi v. Frosh, 858
F. App’x 645, 646 (4th Cir. 2021) (affirming the district court’s dismissal because
“[a]s Plaintiffs concede . . . their argument is squarely foreclosed by this court’s
decision in [Kolbe]”); Bianchi, 111 F.4th at 443 (explaining how the court previously
upheld the Act by finding that the government had a substantial interest in regu-
lating the weapons and conduct that is the subject of the Act). To determine this,
the Fourth Circuit first found that the “the assault weapons at issue were ‘not con-
stitutionally protected arms,’” and then, “even assuming the Second Amendment
reached such weapons, the Maryland regulations survived intermediate scrutiny.”
Id. (quoting Kolbe, 849 F.3d at 130). The court cited several cases where means-end
scrutiny was applied, including Kolbe, 849 F.3d at 133; N.Y. State Rifle & Pistol Ass’n
v. Cuomo, 804 F.3d 242, 254 & n.49 (2d Cir. 2015); and GeorgiaCarry.Org, Inc. v.
U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322 (11th Cir. 2015). Id. at 445.
73. See Bianchi v. Frosh, No. 20-3495, 2021 WL 12192789, at *1 (D. Md. Mar. 4,
2021) (dismissing plaintiff’s complaint for failure to state a claim as their theory of
liability was foreclosed on by Fourth Circuit jurisprudence); Bianchi, 111 F.4th at
443 (citing plaintiff’s appeal of the district court’s dismissal); Kolbe, 849 F.3d at 144
(holding the weapons banned in the Act were not protected by the Second Amend-
ment, and that the Act did not otherwise violate the Fourteenth Amendment).
74. See Petition for Writ of Certiorari, Bianchi v. Frosh, No. 21-902 (U.S.
Dec. 16, 2021) (demonstrating petitioners filed for writ of certiorari to the Supreme
Court on December 16, 2021).
75. See Bianchi v. Frosh, 142 S. Ct. 2898–99 (2022) (vacating and remanding
Bianchi to the Fourth Circuit Court of Appeals following Bruen). For a further dis-
cussion of how Bruen materially altered the approach to Second Amendment anal-
ysis, see supra notes 49–56.
76. See Bianchi, 111 F.4th at 484 n.2 (Richardson, J., dissenting) (emphasizing
Bianchi’s “unorthodox procedural posture”). Judge Richardson drew attention to
the fact that the majority quickly drafted and issued an opinion for the initial hear-
ing, but the dissent did not circulate its opinion for more than a year. Id. Further,
Judge Richardson alluded to the idea that the majority was attempting to use a
“pocket veto” to “deny or delay fairness and justice.” Id. (quoting United States v.
Gibbs, 905 F.3d 768, 770 (4th Cir. 2018)).
2025] noTe 571
and the parties gathered a second time for oral argument on March 20,
2024.
77
While awaiting the Fourth Circuit’s decision, the petitioners
once again filed for writ of certiorari to the Supreme Court, however it
was denied pending the circuit court’s decision.
78
On August 6, 2024,
the Fourth Circuit released a 10-5 decision holding the AWBs prescribed
by the Act are valid and constitutional.
79
iv. iT’s so rT o f exCiTi nG To br e a k Th e ru l e s: nav iGaTi nG
Br aHi m i’s la b y r i nTh
Affirming the District Court of Maryland in light of Bruen, the Bianchi
court held the covered assault weapons are not protected by the
Second Amendment as “arms” because they are extremely dangerous
military-style weapons “ill-suited and disproportionate to the need for
self-defense.”
80
Further, the court explained that the Act “fits comfort-
ably within our nation’s tradition of firearms regulation,” accounting
for the historical considerations newly required by Bruen.
81
Writing for
the majority, Judge Wilkinson clarified that the court had no intention
of influencing other states to enforce similar measures; rather, it simply
found that Maryland legislators were acting “within the scope of [their]
own police powers in responding to the demands of [their] own citi-
zens.”
82
The court began its analysis by delving into Supreme Court prec-
edent surrounding the Second Amendment, acknowledging the right
itself provides “a lofty command, but little concrete guidance.”
83
Judge
77. See id. at 444 (majority opinion) (detailing Bianchi’s procedural history);
Bianchi v. Brown, No. 21-1255, 2024 WL 163085, at *1 (4th Cir. Jan. 12, 2024) (grant-
ing a rehearing of oral arguments en banc). The Fourth Circuit “received additional
supplemental briefing from the parties, and heard oral argument as a full court on
March 20, 2024.” Bianchi, 111 F.4th at 444. In dissent, Judge Richardson observed
that “after more than thirteen months of delay, the judges of this Court took the
case from the assigned panel and granted initial hearing en banc.” Id. at 484 (Rich-
ardson, J., dissenting).
78.
See
Bianchi v. Brown, 144 S. Ct. 2573 (2024) (denying writ of certiorari on
May 20, 2024, before the Fourth Circuit issued a decision).
79. Bianchi, 111 F.4th at 441 (upholding the constitutionality of the Act and
affirming the district court’s decision). A petition for certiorari from the Fourth
Circuit’s latest decision was recently denied. See Snope v. Brown, 145 S. Ct. 1534,
1534 (2025) (denying certiorari on June 2, 2025).
80. Id. at 441–42 (finding the Act “is but another example of a state regulat-
ing excessively dangerous weapons once their incompatibility with a lawful and
safe society becomes apparent, while nonetheless preserving avenues for armed
self-defense”).
81. Id. at 441 (recognizing the changes brought about by Bruen for courts
tasked with analyzing Second Amendment questions).
82. Id. at 447 (“We choose to honor the worthy virtues of federalism and
democracy, not to stifle them. To do otherwise would unduly impede the workings
of legislative bodies across our country as they struggle to meet the challenges of
today and tomorrow.”).
83. Id. at 444 (highlighting the lack of guidance provided by the text of the
Second Amendment).
572 vi l l a n o va law re v i e w [Vol. 70: p. 557
Wilkinson summarized the Fourth Circuit’s understanding of Heller,
in which the Court held that the Second Amendment “safeguards the
right to possess a firearm within one’s home for self-defense.”
84
More
specifically, Judge Wilkinson noted self-preservation to be the core of
the right, and self-defense the “central component.”
85
While the Sec-
ond Amendment covers weapons that did not exist at the time of the
Founding, the right is not unlimited, such that “‘dangerous and unusual
weapons’ that are not ‘in common use’ can be prohibited.”
86
After the Bianchi court evaluated Bruen and its impact on Second
Amendment jurisprudence, it began its analysis of the regulations at
issue.
87
First, it determined the text of the Second Amendment does
not encompass the Act because the covered weapons fall outside of the
“right to keep and bear arms for self-defense.”
88
The court relied on its
Kolbe holding, which held weapons covered under the Act were those
“‘like’ ‘M-16 rifles’, i.e., ‘weapons that are most useful in military service,’
84. Id. (“To reach that conclusion, the Court distilled the Second Amendment
into its constituent parts, engaged in linguistic and historical analysis to interpret
the original meaning of each, and determined that the Amendment ‘guarantee[s]
the individual right to possess and carry weapons in case of confrontation.’” (alter-
ation in the original) (quoting District of Columbia v. Heller, 554 U.S. 570, 592
(2008))).
85.
See
id. (emphasis omitted) (quoting Heller, 554 U.S. at 599) (“The Court
recognized that the Amendment ‘codified a pre-existing right’ to keep and bear arms,
which, at the time of the nation’s founding, was understood by Americans to be
a ‘right of self-preservation.’” (citation omitted) (quoting Heller, 554 U.S. at 592,
595)). “The Court therefore found that ‘self-defense’ is ‘the central component of the
right.’” Id. (quoting Heller, 554 U.S. at 599).
86.
See
id. at 445 (quoting Heller, 554 U.S. at 627) (reporting the Heller Court
determined “the Second Amendment does not guarantee ‘a right to keep and carry
any weapon whatsoever in any manner whatsoever and for whatever purpose’”
(quoting Heller, 554 U.S. at 626)). Further, the court quoted Heller for the propo-
sition “that the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes.” Id. (quoting Heller, 554 U.S.
at 625).
87.
See
id. (addressing the changes brought about by Bruen). The Fourth
Circuit explained that “the Bruen Court was clear that it was ‘apply[ing]’ the ‘test
that [it] set forth in
Heller
’” and did not seek to abrogate anything said in Heller or
McDonald concerning the types of weapons that may be possessed nor their carry.
Id. at 446 (alterations in original) (quoting N.Y. State Rifle & Pistol Ass’n, Inc. v.
Bruen, 597 U.S. 1, 26 (2022)) (detailing how first the Bruen Court found the public
carry of handguns was conduct covered under the Second Amendment, and “Amer-
ican governments simply have not broadly prohibited the public carry of commonly
used firearms for personal defense” (quoting Bruen, 597 U.S. at 70)). In its survey of
historical regulations, the Bruen Court found that none were “sufficiently analogous
to the regulation at issue.” Id.
88.
See id.
at 446–47 (emphasizing the Second Amendment is not unlimited).
The court observed “text cannot be read in a vacuum” and emphasized the impor-
tance of considering context when examining the scope of the Second Amendment.
Id. at 447. The court justified this approach to constitutional analysis through com-
parison with the First Amendment, explaining that without appropriate context, it
would appear the government could not place limitations on speech such as libel
and threats. Id. at 447–48. However, the “backdrop of laws and societal understand-
ings” underlying the First Amendment provide requisite context for concluding
that some types of dangerous speech are not protected. Id.
2025] noTe 573
and thus outside the ambit of the Second Amendment.”
89
Further, it
opined that this conclusion fit squarely within Heller’s close association
of the Second Amendment with the right to self-defense and, in essence,
the imminence of a threat.
90
Limitations on the rights granted by the
Second Amendment “reflect a careful balancing of interests between
individual self-defense and public protection from excessive danger.”
91
The majority continued its analysis by turning to the “dangerous and
unusual” exception to the Second Amendment, taking a closer look at
various weapons covered under the Act.
92
It compared these weapons
to the handgun, “the quintessential self-defense weapon,” identifying
stark differences in their makeup and effect.
93
To that end, the court
emphasized that weapons prohibited under the Act are distinguishable
from handguns based on “their ability to inflict damage on a scale or in
a manner disproportionate to the end of personal protection,” such that
they are “most suitable for criminal or military use.”
94
Procedurally significant, the Bianchi court noted that the petitioners
brought a facial challenge to the Act—a very high bar—that had not been
met.
95
The majority narrowed in on AR-15s, the crux of the petitioners’
89. See id. at 448 (quoting Kolbe v. Hogan, 849 F.3d 114, 136 (4th Cir. 2017))
(finding “Bruen did not abrogate Kolbe’s entire holding,” and its “principal holding
that the covered assault weapons were outside the ambit of the individual right to
keep and bear arms” remained applicable to Bianchi).
90.
See
id. at 448–49 (“The pre-existing right codified by the Second Amend-
ment is thus about amplifying the power of individual citizens to project force
greater than they can muster with their own bodies so that they may protect them-
selves when government cannot.”). The Bianchi court continued to explain the key
role imminence plays in responding to threats, noting that the Second Amendment
does not protect “preemptive assault” due to “mere speculation.” Id. at 449.
91.
Id.
at 450 (asserting the Second Amendment does not encompass exces-
sively dangerous weapons that are ill-suited and disproportionate to the purpose
of self-defense). The Bianchi court offered comparisons to other areas of Second
Amendment jurisprudence where the Court has upheld limitations on firearm pos-
session, such as in “sensitive places” and by certain groups, including individuals
with mental health conditions and felons. Id.
92. See id. at 451 (quoting District of Columbia v. Heller, 554 U.S. 570, 627
(2008)) (“A corollary to ‘the historical tradition of prohibiting the carrying of “dan-
gerous and unusual weapons”’ is that ‘the Second Amendment does not protect
those weapons not typically possessed by law-abiding citizens for lawful purposes,
such as short-barreled shotguns.” (citation omitted) (quoting Heller, 554 U.S. at
627)).
93. See id. at 451–52 (quoting Heller, 554 U.S. at 629) (emphasizing weapons
banned under the Act “are not the modern equivalents of weapons that were com-
monly possessed and employed for self-preservation by your shopkeeper, or your
butcher, or your blacksmith up the road in colonial America”).
94. Id. at 451 (“For instance, Congress began regulating sawed-off shotguns
and short-barreled rifles after they became infamously associated with ‘notorious
Prohibition-era gangsters like Bonnie Parker and Clyde Barrow.’” (quoting Ocean
State Tactical, LLC v. Rhode Island, 95 F.4th 38, 47 (1st Cir. 2024))).
95.
See
id. at 452 (indicating “[a] facial challenge is ‘the “most difficult chal-
lenge to mount successfully”’” as to succeed the petitioners “would have to establish
‘that no set of circumstances exists under which [the statute at issue] would be
valid,’ or that the statute lacks any ‘plainly legitimate sweep.’” (second alteration in
original) (first quoting United States v. Rahimi, 602 U.S. 680, 693 (2024); and then
574 vi l l a n o va law re v i e w [Vol. 70: p. 557
briefs and oral argument, and their similarity to M-16s, a military grade
assault weapon.
96
Furthermore, Judge Wilkinson considered the AR-15’s
ramifications on policy and public safety, such as its origin as a military
weapon, disproportionate use in mass shootings and acts of terrorism,
and lethal consequences.
97
Overall, the court engaged this comparison
to emphasize that AR-15s are “a far cry from any notion of civilian self-
defense.”
98
Lastly, the majority addressed the petitioners’ “common use”
argument, explicating the difference between use and possession and
emphasizing that the weapon must actually be used for the purpose of
self-defense.
99
In sum, the court found the covered assault weapons, spe-
cifically AR-15s, were dangerous, unusual, and not in common use to
reach the conclusion that they were not protected by the plain text of the
Second Amendment.
100
quoting United States v. Stevens, 559 U.S. 460, 472 (2010))). Therefore, the peti-
tioners needed to show that each firearm regulated by the Act, including the sniper
rifle, fell within the protections of the Second Amendment. Id. at 453.
96.
See
id. at 454–55 (finding AR-15s sold on the civilian market “have not
strayed far from the rifle’s military origin” because they have “the same internal pis-
ton firing system and the same ammunition as the M16”). The Bianchi court cited
several other similarities between the AR-15 and M16, including their similar target
range, combat-functional features such as flash-suppressors, detachable 20-round
or 30-round magazines, and barrel shrouds. Id. at 455. “The primary difference
between the M16 and AR-15—the M16’s capacity for automatic fire, burst fire, or
both, depending on the model—pales in significance compared to the plethora of
combat-functional features that makes the two weapons so similar.” Id. at 456.
97.
For fur
ther discussion of the AR-15s “maximum wound effect,” gruesome
injuries, and disproportionate use in mass shootings and terrorist attacks, see infra
note 140.
98. Bianchi, 111 F.4th at 456 (“Between its firepower, accuracy, and modifiability,
the ‘net effect’ of the AR-15’s ‘military combat features is a capability for lethality.’”
(quoting Kolbe v. Hogan, 849 F.3d 114, 144 (4th Cir. 2017))). The Bianchi court
employed these interest-balancing considerations to show that AR-15s are not in line
with what the Second Amendment is intended to protect—a right to self-defense.
Id. at 458. The majority furthered its argument by detailing the size of AR-15s, which
makes them more difficult to maneuver and conceal and increases the likelihood
that their use will harm bystanders through “rapid and uninterrupted discharge of
many shots.” Id. at 458–59 (quoting Ocean State Tactical, 95 F.4th at 45).
99.
See
id. at 459–60 (declining to adopt petitioners’ argument that a firearm
owned by millions of Americans cannot be banned and illustrating the “absurd con-
sequences” that would follow from such an approach”). The Bianchi court explained
under this assumption a “dangerous weapon[] could gain constitutional protection
merely because it becomes popular before the government can sufficiently regulate
it.” Id. at 460. Further, the court explicated the difference between merely possess-
ing versus using the challenged firearms for self-defense, while questioning what the
petitioners believed would be an appropriate threshold for this inquiry. Id.
100. See id. (explaining how “[j]ust because a weapon happens to be in com-
mon use does not guarantee that it falls within the scope of the right to keep and
bear arms”). Further, the Bianchi court found the petitioners were lacking a clear
test to determine what weapons were in common use, so it could not definitively
determine that. Id. Even so, the majority concluded the weapons were outside the
scope of the Second Amendment because they are “ill-suited and disproportionate
to the need for self-defense.” Id. at 441.
2025] noTe 575
Despite concluding the covered weapons lie “outside the scope of
the Second Amendment,” the court moved onto the second step of anal-
ysis, which is informed by the history and tradition of firearm regulations
in the United States.
101
Adhering to recent Supreme Court precedent,
namely Bruen and Rahimi (Brahimi), the court employed a “reasoning by
analogy” formula, in which it must discern whether there is a historical
analogue to the modern regulation in question.
102
Due to “unprecedented societal concerns” and “dramatic techno-
logical changes” the majority determined it needed to take “a more
nuanced approach” to the THT analysis, citing to harm reduction prin-
ciples commonplace in interest-balancing-focused inquiries.
103
To assert
the need for this varied approach, the majority employed evidence of the
rise of mass shootings, rapid advancements in gun technology, and their
newfound use for destruction to demonstrate how the current state of
firearms is unprecedented and was unforeseen at the time of the Found-
ing.
104
To put it succinctly, the court found that “[t]hese are not our
forebears’ arms, and these are not our forebears’ calamities.”
105
The majority then turned to the “historical record of arms regula-
tions,” finding legislatures consistently respond to excessively dangerous
101. See id. at 461 (“Out of respect for the Supreme Court’s order remanding
this case after Bruen, we think it appropriate to reckon with the tradition of weapons
regulation in this country and assess whether the Maryland statute is harmonious
with it.”). The court found the “Maryland regulation is readily ‘consistent with this
Nation’s historical tradition of firearm regulation.’” Id. at 462 (quoting N.Y. State
Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 34 (2022)).
102.
See
id. at 461–62 (invoking Bruen to note “[t]he analogue need not be ‘a
historical
twin
,’ but must be ‘a well-established and representative historical ana-
logue’” (quoting Bruen, 597 U.S. at 30)). Further, the Bianchi court accounted for
the Supreme Court’s most recent treatment of the Second Amendment in Rahimi,
which explained “that Heller and Bruen ‘were not meant to suggest a law trapped
in amber,’” nor a “regulatory straightjacket.” Id. at 462, 472 (first quoting United
States v. Rahimi, 602 U.S. 680, 691 (2024); and then quoting Bruen, 597 U.S. at 30).
103.
See id.
at 462–63 (quoting Bruen, 597 U.S. at 26–27) (acknowledging while
Bruen suggested absence of historical analogues for a challenged regulation may
suggest it is inconsistent with the Second Amendment, this might not be the case if
the challenged regulation addresses a more recent societal problem). The Bianchi
court found that “[t]his case calls for such a nuanced approach” because it involved
both modern technology and unforeseen societal change. Id. at 463.
104.
See
id. (listing ample modern mass shootings in “Las Vegas, Orlando,
Blacksburg, Sandy Hook, Sutherland Springs, El Paso, Uvalde, Lewiston, Parkland,
San Bernardino, Binghamton, Fort Hood, Thousand Oaks, Virginia Beach, Wash-
ington, D.C., Aurora, Monterey Park, Pittsburgh, Geneva County, Boulder, Buf-
falo, Covina, Dayton, Red Lake, Roseburg, San Jose, Santa Fe, Allen, Charleston,
Indianapolis, Manchester, Omaha, and Plano”). The majority attributed “[r]apid
advancements in gun technology [as] a central cause of this mass carnage,” noting
that they allow lone gunmen to kill “as many people in as little time as possible.” Id.;
see infra notes 141–142 (detailing the destruction caused by mass shootings, specifi-
cally pertaining to children in schools).
105.
Id.
at 464 (“[T]here is no known occurrence of a mass shooting resulting
in double-digit fatalities from the Nation’s founding in 1776 until . . . 1949.” (alter-
ations in original) (quoting Or. Firearms Fed’n, Inc. v. Brown, 644 F. Supp. 3d 782,
803 (D. Or. 2022))).
576 vi l l a n o va law re v i e w [Vol. 70: p. 557
arms with proportionate regulations.
106
The court identified regulations
on weapons such as gunpowder, bowie knives, and dynamite as historical
analogues for the Act.
107
Addressing the weapons at issue more specif-
ically, the court discussed how legislators rarely focused on firearms as
they were not frequently used for homicide, let alone mass shootings.
108
Overall, Judge Wilkinson emphasized that when public concerns emerge
concerning rising rates of violence, legislators regularly respond.
109
In
closing, the court found the “Maryland statute at issue is yet another
chapter in this chronicle” of regulations addressing the current needs of
American communities, despite being unanticipated by Framers at the
time of the Second Amendment’s inception.
110
Two judges issued concurrences, with Judge Diaz fully endorsing the
majority but writing separately to discuss the challenges of Bruen, and
Judge Gregory agreeing with the majority’s holding but concluding its
analysis was not in line with Supreme Court precedent.
111
Judge Richardson authored a lengthy dissent, arguing that the Act
was unconstitutional because the firearms it prohibited were protected
by the Second Amendment and had not been historically regulated.
112
2025] noTe 577
In setting forth Supreme Court precedent, he explored the history
of the Second Amendment and the major changes brought about by
Bruen, emphasizing the complete rejection of any interest balancing
consideration.
113
He also concluded that weapons prohibited by the Act
are in common use for lawful purposes, and not otherwise dangerous
or unusual.
114
Lastly, Judge Richardson found none of the majority’s
proposed historical analogues nor analysis of the nation’s regulatory
tradition availing, asserting: “Our duty to enforce the Constitution does
not evaporate when the right at issue has ‘controversial public safety
implications.’”
115
v. do n’T leT Th e suPr eMe Co u rT GeT yo u do w n:
aCk n o w l e dGi nG Mo d e r n Pe r i l s wh i l e ad h e r i nG To
a hi sTo r y-foCu s e d fr aMe w o r k
This Part provides a critical analysis of the Bianchi court’s resistance
to Supreme Court precedent while acknowledging its considerations
are not unwarranted in Second Amendment inquiries. Section A exam-
ines how Bianchi exemplified the shortcomings of Brahimi’s analogical
approach. Section B details the impermissible interest-balancing and
legislative deference woven throughout Bianchi. Section C argues despite
the Fourth Circuit’s rejected policy-centered analysis, it ultimately cor-
rectly upheld the Act through finding sufficient historical analogues and
a consistent regulatory tradition.
ous and unusual, Maryland’s ban cannot pass constitutional muster as it prohibits the
possession of arms commonly possessed by law-abiding citizens for lawful purposes.”).
113.
See
id. at 494–99 (emphasizing how Heller, Bruen, and Rahimi prescribe
a history-focused test). Turning to Fourth Circuit precedent, Judge Richardson
argued Kolbe was fully abrogated by Bruen, unlike the majority that found the first
step of Kolbe to be applicable to Bianchi. Id. at 498.
114. See id. at 502 (arguing the “common use” inquiry best fits at Bruen’s sec-
ond step, rather than when analyzing whether the plain text of the Second Amend-
ment covers the conduct). As for how to decide whether a weapon is in common
use, Judge Richardson contended: “Whether a type of weapon is in common use is
. . . largely an ‘objective and largely statistical inquiry’ that examines broad patterns
of usage and the reasons behind that usage.” Id. at 516–17 (quoting
Kolbe
v. Hogan,
849 F.3d 114, 153 (4th Cir. 2017) (Traxler, J., dissenting)); see also id. at 520 (finding
the covered weapons were not solely for military use and it did not matter if the
weapons had utility beyond self-defense).
115.
See
id. at 535 (quoting McDonald v. City of Chicago, 561 U.S. 742, 783
(2010)) (acknowledging the majority’s finding of sufficient historical analogues,
such as gunpowder, bowie knives, and pistols, and arguing they are inapplicable to
the challenged weapons). Judge Richardson went on to find:
[T]here is no similar constitutional case to support restrictions on semi-
automatic firearms. . . . [S]emiautomatic rifles are less useful for crime
than . . . even handguns. . . . [T]hey are commonly possessed by millions
of law-abiding American citizens for many different lawful purposes. As a
result, there is no basis for banning these kinds of weapons. The majority’s
evidence to the contrary is simply nonexistent.
Id. at 534.
578 vi l l a n o va law re v i e w [Vol. 70: p. 557
A. Predicting the Future Is a Difficult Business: Facing the Inherent
Challenges of the THT Test
Bianchi exemplifies the shortcomings of Brahimi, making clear the
inadequacy of the “more nuanced,” “reasoning by analogy” approach in
practice.
116
The societal and technological changes inherent to most
modern firearm regulations render it nearly impossible to find clearly
analogous historical regulations.
117
This results in an inevitable increase
of judicial discretion and discomfort in performing these inquiries.
118
As evidenced by Bianchi, judges of all stripes find themselves at odds with
this ambiguous, malleable standard.
119
The historical analogues courts are supposed to cite to are often
too distant to meaningfully correlate to modern challenged regulations,
though this is hardly unexpected given the vast differences between then
and now.
120
The Supreme Court’s lack of guidance, the untethering of
116. See id. at 462–63 (majority opinion) (quoting N.Y. State Rifle & Pistol Ass’n,
Inc. v. Bruen, 597 U.S. 1, 27–28 (2022)) (noting the confusing framework set forth
by the Bruen Court). For a discussion of why the reasoning-by-analogy approach is
often inconclusive and misleading, see infra notes 140–144 and accompanying text.
117.
See
Bianchi, 111 F.4th at 463 (discussing the gruesome violence caused by
assault weapons as of late, stating: “What did our forebears have by way of compar-
ison, when they were drafting the Second and Fourteenth Amendments? Nothing
even close.”); Matt Valentine, Clarence Thomas Created a Confusing New Rule That’s
Gutting Gun Laws,
PoliTiCo (July 28, 2023, 4:31 AM), www.politico.com/
news/magazine/2023/07/28/bruen-supreme-court-rahimi-00108285 [https://
perma.cc/2T33-2JJ6] (illustrating how Bruen is “anti-innovation” because it prohib-
its “innovative responses to challenges today that deal with gun violence”). One
scholar explains why ignoring how dramatically firearms have changed since the
Founding is problematic, stating, “[s]killed users of guns in the founding era could
fire three shots in a minute, maybe. Unskilled users with guns today can fire as fast
as they can pull a trigger.” Id.
118.
See
Mark Anthony Frassetto, Judging History: How Judicial Discretion in
Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment
Cases, 29
wM. & Mary bill rTs. J. 413, 426 (2020) (“[U]sing such a broad array of his-
torical sources is inconsistent with the idea that the Second Amendment had a single,
fixed meaning at the time of its ratification.”). The author argues that introducing
this array of historical sources “raises the inevitability that some of the sources will
be inconsistent, allowing for the discretion of judges to replace the objectivity that
an originalist approach is intended to produce.” Id.; Joseph Blocher & Darrell A.
H. Miller, A Supreme Court Head-Scratcher: Is a Colonial Musket ‘Analogous’ to an AR-15?,
n.y. TiMes (July 1, 2022), www.nytimes.com/2022/07/01/opinion/guns-
supreme-court.html [https://perma.cc/A233-EBW6] (“Whether judges will read
the historical record narrowly or broadly is anybody’s guess.”).
119. See Nate Raymond, Judge Criticizes US Supreme Court’s Reliance on Historical
‘Tradition’,
reuTers (Feb. 20, 2024, 2:36 PM), www.reuters.com/legal/govern-
ment/judge-criticizes-us-supreme-courts-reliance-historical-tradition-2024-02-20/
[https://perma.cc/9ERP-9LMQ] (detailing how Trump-appointed U.S. Circuit
Judge Kevin Newsome finds the THT Test confusing and “risks leaving ‘too much to
individual judges’ discretion’”); Fong, Percival & Wolf, supra note 15 (summarizing
numerous federal judges’ negative opinions on the THT Test, namely Reagan and
Trump appointees who found Bruen’s standard to be dangerously manipulable and
insulting to the Founders’ foresight).
120.
See
Blocher & Ruben, supra note 17, at 150–51 (arguing, for example,
the absence of regulations on ghost guns at the Founding should not necessarily
2025] noTe 579
restraints common to originalist analysis, and the broad scope of gener-
ality permitted by Rahimi have cultivated this major obstacle.
121
These
factors coalesce to allow extremely attenuated historical links to serve as
sufficient analogies, and contemporaneously strike down similarly situ-
ated analogues due to arbitrary thresholds.
122
Further, while the dissent
in Bianchi would have courts accept that a lack of historical analogue
means that challenged legislation is outside the scope of the nation’s tra-
dition of regulating firearms, this is hardly the case.
123
More often, gaps
foreclose regulating them in in the present day). The authors offer an example
concerning whether a houseboat is more similar to a house or vessel to draw a
helpful comparison: “We might choose to group books on our personal bookshelves
according to how much we like them or when we bought them. But those principles
will be unintelligible to others; they could not be used to organize a library’s public
holdings.” Id. at 144.
121.
See
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 29 (2022)
(declining to “provide an exhaustive survey of the features that render regula-
tions relevantly similar under the Second Amendment”); Eric J. Segall, Original-
ism, Bruen, and Constitutional Insanity, 51
fordhaM urb. l.J. online 1, 4 (2023)
(emphasizing how Bruen is not actually originalist and fails to limit or constrain
judges). Further, the author argues “Bruen is completely anti-originalist because” it
exiles public policy concerns, whereas the Founders “did not treat legally protected
rights that way.” Id. at 3; see also Blocher & Ruben, supra note 17, at 111 (describing
the differences and implications between Bruen’s new “originalism by analogy” ver-
sus the well-accepted originalism by public meaning doctrine); Saul Cornell, Clar-
ence Thomas’ Latest Guns Decision Is Ahistorical and Anti-Originalist,
slaTe (June 24,
2022, 9:26 AM), slate.com/news-and-politics/2022/06/clarence-thomas-
gun-decision-bruen-anti-originalist.html [https://perma.cc/28N6-QQN3] (“The
old originalism of Robert Bork and Chief Justice William Rehnquist sought to use
history to constrain judicial discretion and activism. The new originalism favored
by Thomas and his fellow originalists has embraced judicial activism on steroids.”
(emphasis omitted)); Corgan, supra note 21 (detailing how Rahimi broadened the
scope of generality permissible following Bruen and noting “if the desired end for
the
Bruen
test is judicial restraint, it is unclear whether originalism-by-analogy effec-
tively advances this goal”).
122. 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) (discuss-
ing how Rahimi is illustrative of “how judges weaponize Bruen to invalidate laws that
are consistent with the nation’s traditions of weapons regulation”); see also Cornell,
supra note 121 (“[T]he court’s current use of originalism more clearly resembles
an act of ventriloquism in which old texts are pressed into the service of modern
agendas with little regard to how they were read at the time they were written.”).
The author further argues, “[t]he new originalism, including the Bruen decision,
turns historical actors into little more than stage dummies for the justices to project
their own modern values and ideas onto the past.” Id.; United States v. Rahimi, 602
U.S. 680, 745 (2024) (Jackson, J., concurring) (“Consistent analyses and outcomes
are likely to remain elusive because whether Bruen’s test is satisfied in a particular
case seems to depend on the suitability of whatever historical sources the parties can
manage to cobble together, as well as the level of generality at which a court evalu-
ates those sources—neither of which we have as yet adequately clarified.”); Blocher
& Reuben, supra note 17, at 172 (referring to the Bruen Court’s pointed canvassing
of the record, stating, “[t]he majority’s flexibility in accepting arguments about the
high burden of the modern regulation, however, was in stark contrast to its willing-
ness to minimize the burdens imposed by historical regulations”).
123.
Compare
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 253 (2022)
(overruling Roe v. Wade and observing just because “many States in the late 18th and
early 19th century did not criminalize pre-quickening abortions does not mean that
580 vi l l a n o va law re v i e w [Vol. 70: p. 557
in the historical record are the result of an absence of need to regulate
certain weapons and archaic views on civil rights and liberties.
124
Because
the THT Test does not factor for how circumstances at the Founding dif-
fered from the present day, nor the urgent need to address the perils of
modern firearm use, courts are cabined to the following analysis: “(1)
Consult text, history, and tradition; (2) ?; (3) Decision.”
125
The vague standard set forth by Brahimi allows for heightened judi-
cial discretion in assessing the historical record.
126
When there is not a
anyone thought the States lacked the authority to do so”), with Bruen, 597 U.S. at
26 (stating “for instance, when a challenged regulation addresses a general societal
problem that has persisted since the 18th century, the lack of a distinctly similar his-
torical regulation addressing that problem is relevant evidence that the challenged
regulation is inconsistent with the Second Amendment”). See Charles, supra note
16, at 115 (“Whether inaction results from lack of necessity, impracticality, limited
foresight or ingenuity, disregard for marginalized populations, or other reasons
altogether is irrelevant.”).
124.
See
Charles, supra note 16, at 110–11 (asserting Bruen’s extreme deference
given to the absence of positive law has severe implications as it suggests that if a
government did not regulate something at the Founding, it endorsed the activity).
Further, Charles draws attention to the many assumptions Bruen ensnares, including
that government historically acted to the furthest extent of its constitutional capac-
ity and that historical laws were exhaustive of what was understood to be permissible
at that time. See id. at 113–15; Rahimi, 602 U.S. at 739–40 (Barrett, J., concurring)
(asserting a strictly historical-based test “assumes that founding-era legislatures max-
imally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view
of legislative authority” and further, that “[s]uch assumptions are flawed”); Jacob D.
Charles, On Sordid Sources in Second Amendment Litigation, 76
sTan. l. rev. online 30,
32–33 (2023) (exploring the checkered past of American history, specifically the
negative effect of discriminatory laws, and conversely the lack of laws protecting
marginalized groups, on the THT Test); see also Valentine, supra note 117 (compar-
ing semiautomatic assault weapons to jet packs to emphasize why it was impractical
at the Founding to consider strictly regulating devices that were narrowly used and,
even further, used for different purposes).
125. See Brannon P. Denning & Glenn H. Reynolds, Retconning Heller: Five
Takes on New York State Rifle & Pistol Association, Inc. v. Bruen, 65
wM. & Mary l.
r
ev. 79, 107 (2023) (comparing the THT Test to a South Park episode to emphasize
the difficulties courts face when filling the gaps between history and challenged
regulations); Jonathan R. Siegel, Habeas, History, and Hermeneutics, 64
ariz. l. rev.
505, 509 (2022) (“One must, however, always remember that ‘the past is a foreign
country; they do things differently there.’ Historical statements must be under-
stood in their historical context.” (footnote omitted) (quoting
l.P. harTley, The Go
b
eTween 9 (1953))); United States v. Kelly, No. 22-CR-00037, 2022 WL 17336578, at
*4 n.6 (M.D. Tenn. Nov. 16, 2022) (“Attempting to reconstruct past constitutional
understandings through a litigation-driven process of keyword searches seems to
rely on the assumption that the past was little more than a differently-dressed ver-
sion of the present, ripe for easy one-to-one comparisons without regard for deep
changes in political structure, unspoken institutional arrangements, or language.
As far as the court can tell, that is not what actual historians, as opposed to litigants
and litigators, believe.”); see also Blocher & Ruben, supra note 17, at 109 (“It is thus
unsurprising that many post-Bruen opinions look like conclusions accompanied by
historical citations, with little connecting the two.”).
126. See Rebecca L. Brown, Lee Epstein & Mitu Gulati, The Constraining Effect of
“History and Tradition”: A Test (Va. Pub. L. & Legal Theory Rsch. Paper No. 2024-63,
2024) (sharing findings from a comprehensive study done on all gun rights cases
seen in lower courts from 2000 to 2023 to examine whether the means-end test or
THT Test allowed for more judicial discretion). The authors found that the THT
2025] noTe 581
clear historical analogue, courts are left to pick and choose whether to
deem past regulations relevantly similar in a “game of historical Where’s
Waldo.”
127
The Bianchi dissent accused the majority of “cherry-pick[ing]”
from the historical record to uphold the Act, though neither side is insu-
lated from these claims.
128
Without clear guidance to adhere to, courts
inevitably side with historical analogues that are more in line with their
own policy views.
129
These concerns have demonstrably materialized in
the few short years since Bruen was decided.
130
In short, while the Court’s
Test is less restraining on judges and resulting holdings were highly correlated to
partisanship, disproportionately so with regard to Trump-appointed judges. Id. at 32
fig.4. The authors concluded their findings were “consistent with the view that the
Bruen approach increased, not decreased, individual judges’ discretion.” Id. at 27;
see also After the Highland Park Attack: Protecting Our Communities from Mass Shootings:
Hearing Before the S. Judiciary Comm., 117th Cong. 8 (2022) (written testimony of
Joseph Blocher, Lanty L. Smith Professor of Law, Duke University Law School)
(“[A]nalogical test[s] like Bruen’s raise[] serious problems of administrability and
invite[] judicial discretion and ideology to seep into decision-making.”).
127. See United States v. Love, 647 F. Supp. 3d 664, 670 (N.D. Ind. 2022)
(referring to the problems district courts face due to Bruen’s unclear standard as
a “game of historical Where’s Waldo”); Blocher & Miller, supra note 118 (“It is an
‘I know it when I see it’ approach to historical analogy.”).
128.
See
Bianchi v. Brown, 111 F.4th 438, 483 (4th Cir. 2024) (Richardson, J., dis-
senting) (“Finally, to top it all off, the majority cherry-picks various regulations from
the historical record and pigeonholes them into its preferred—yet implausible—
reading of our Nation’s historical tradition of firearms regulation.”). Further, Judge
Richardson argued that “[t]he Second Amendment is not a second-class right sub-
ject to the whimsical discretion of federal judges.” Id.; see also Blocher & Miller,
supra note 118 (“Whether judges will read the historical record narrowly or broadly
is anybody’s guess. But what is certain is that the fate of gun laws will depend more
than ever on the whims of federal judges.”). While Joseph Blocher and Darrell A.
H. Miller, co-directors of the Duke Center for Firearms Law, also caution against
increasing judges’ discretion, they are more concerned about gun control laws being
struck down, and discuss how the Second Amendment enjoys “more insulation from
modern regulatory demands than almost any other constitutional provision.” Id.
129.
See
Darrell A. H. Miller & Joseph Blocher, Manufacturing Outliers, 2022
suP.
C
T. rev. 49, 79 (asserting historical outliers that were determined to be insufficiently
analogous were not necessarily found, but rather chosen by the Court for reasons
lacking in transparency and rigor). The authors explain: “A central defect of Bruen
is the suggestion that its ‘outliers’ were simply found. They weren’t. They were
created. Bruen’s outliers are the product of decisions both inside and outside the
Court, motivated by express and assumed judgments . . . .” Id. at 64; see also Charles,
supra note 16, at 106 (noting without a clear framework for evaluating historical
regulations, “lower courts [are] floundering for guidance”).
130.
See
Rebecca L. Brown, Lee Epstein & Mitu Gulati, Guns, Judges, and
Trump 23 (Va. Pub. L. & Legal Theory Rsch. Paper No. 2024-51, 2024) (concluding
through a comprehensive study of Second Amendment decisions post-Bruen that
the controversial decision “has fueled, rather than settled, partisan divide over a
fundamental constitutional right”). The authors proceed to argue Rahimi did little
to improve Bruen’s confusing framework because it did not address issues at the
root of the THT Test such as questions of generality and the proper scope of the
historical analogues. Id. at 123; Lee Epstein, Partisanship “All the Way Down” on the
U.S. Supreme Court, 51
PePP. l. rev. 489, 492 (2024) (illustrating the increasing parti-
sanship of judges on the Supreme Court and its effect on judicial decision-making);
see also Blocher & Miller, supra note 118 (suggesting Bruen is effectively “a one-way
ratchet in favor of ever more expansive gun rights”).
582 vi l l a n o va law re v i e w [Vol. 70: p. 557
professed intention was to limit judicial activism in Second Amendment
jurisprudence, this approach has only curtailed initiatives championed
by its progressive counterparts.
131
Even when courts attempt to apply the Brahimi framework in good
faith, judges at every level express their confusion and discomfort.
132
The bottom-line is this: “Courts are . . . staffed by lawyers, not histori-
ans.”
133
Lower courts and their judges are ill-equipped to perform the
analysis required by the THT Test due to lack of Second Amendment
expertise and high-volume dockets.
134
To alleviate confusion and con-
cerns about their own predilections affecting holdings, judges have gone
so far as to ask to appoint historians as expert witnesses, though this was
ultimately deemed inadmissible.
135
Judges also struggle when faced with
131. Compare United States v. Rahimi, 602 U.S. 680, 728–32 (2024)
(Kavanaugh, J., concurring) (arguing the THT Test is more effective than inter-
est-balancing in curbing judicial discretion, promoting objectivity, and staying true
to the Framers’ intentions), with Brown, Epstein & Gulati, supra note 130, at 16–17
(“[E]ver since Heller the Republicans and Democrats have differed in their approach
to gun-rights claims. But Bruen drove a larger wedge between them. Bruen appears
to have left sufficient discretion to lower court judges such that the Democratic
judges were able to uphold gun rights less often while Republicans were able to
champion gun rights.” (footnote omitted)).
132. See Fong, Percival, & Wolf, supra note 15 (noting several judges, both
Republican and Democrat, share confusion and disapproval surrounding the THT
Test); see also Jimmy Donlon, Comment, United States v. Rahimi: “We Do Not Resolve
Any of Those Questions Because We Cannot”, 111
va. l. rev. online 27, 27–28 (2025)
(arguing even the Supreme Court struggled to apply Bruen’s THT Test in Rahimi,
as evidenced by its seven different opinions and departure from Bruen’s original
standard). For a further discussion on how judges are struggling to apply the THT
Test, see infra notes 133–137 and accompanying text.
133.
See
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 107 (2022)
(Breyer, J., dissenting) (questioning whether lower courts have the requisite
resources to perform historical inquiries, determine the constraints of what histor-
ical regulations can be considered analogues, evaluate which historians are most
reliable, and figure out how to shield outcomes from judicial discretion); see also
Rahimi, 602 U.S. at 744 n.2 (Jackson, J., concurring) (“Bruen also conscripts parties
and judges into service as amateur historians, casting about for similar historical
circumstances.”).
134.
See
Alexandra Michalak, Note, Historians Wear Robes Now? Applying the His-
tory and Tradition Standard: A Practical Guide for Lower Courts, 32
wM. & Mary bill rTs.
J. 479, 501 (2023) (explaining “[l]ower courts face a significantly higher caseload
than the Supreme Court of the United States but with significantly fewer resources”).
Despite this disparity, “lower courts must act swiftly, efficiently, and fairly, all
while following the necessary procedures to maintain the integrity of the judicial
branch.” Id.; see also United States v. Love, 647 F. Supp. 3d 664, 670 (N.D. Ind. 2022)
(“By . . . announcing an inconsistent and amorphous standard, the Supreme
Court has created mountains of work for district courts that must now deal with
Bruen-related arguments in nearly every criminal case in which a firearm is found.”).
135.
See
United States v. Bullock, No. 18-CR-165, 2022 WL 16649175, at *3 (S.D.
Miss. Oct. 27, 2022) (“Not wanting to itself cherry-pick the history, the Court now
asks the parties whether it should appoint a historian to serve as a consulting expert
in this matter.”); Fraser v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 672
F. Supp. 3d 118, 137 n.20 (E.D. Va. 2023) (“The Court is staffed by lawyers who are
neither trained nor experienced in making the nuanced historical analyses called
for by Bruen. . . . The analytical construct specified by Bruen is thus a difficult one for
2025] noTe 583
conflicting briefs from lawyers, not knowing which is more accurate or
comprehensive.
136
Inevitably, this additional layer of uncertainty further
enables judicial discretion to creep into judgements, whether intention-
ally or not.
137
B. I Solemnly Swear I Am Up to No Good: Sidestepping Supreme Court Precedent
Judge Diaz noted the repercussions of an exclusively history-based
framework on the Bianchi court, stating: “Look no further for a front row
seat to this confusion than the principal opinions authored today.”
138
non-historians.”); State v. Philpotts, 194 N.E.3d 371, 373 (Ohio 2022) (Brunner, J.,
dissenting) (“Fundamentally, no appellate court should be the fact-finder in deter-
mining the tradition of gun regulations during different eras of our nation’s history,
including how and why guns may have been regulated.”).
136.
See
Adam Liptak, Supreme Court’s Gun Rulings Leave Baffled Judges Asking
for Help,
n.y. TiMes (Sept. 23, 2024), www.nytimes.com/2024/09/23/us/
supreme-court-guns-second-amendment.html [https://perma.cc/YWV2-2JQ3] (cit-
ing a quote from Judge Pamela Harris of the Fourth Circuit: “I just got two briefs . . .
One brief says, ‘This happened in history.’ The other says, ‘No, it didn’t.’ ‘What do
I do?’”). Further, Judge Harris stated that “[t]he trick is that we all need to go back
in time and become historians . . . [a]nd short of that, I find this to be very, very
challenging.” Id.; see also Jack M. Balkin, The New Originalism and the Uses of History,
82
fordhaM l. rev. 641, 690 (2013) (emphasizing that “[o]ften the job of lawyers is
to persuade others who may lack deep historical knowledge”); Allison Orr Larsen,
The Supreme Court Decisions on Guns and Abortion Relied Heavily on History. But Whose
History?,
PoliTiCo (July 26, 2022, 4:30 AM), www.politico.com/news/mag-
azine/2022/07/26/scotus-history-is-from-motivated-advocacy-groups-00047249
[https://perma.cc/SK23-MKSP] (detailing how reliance on lawyers’ briefs for an
account of history is misplaced because the briefs are “sometimes signed by his-
torians, sometimes not” and “are virtually all written by lawyers and often filed by
motivated groups that are pressing for a particular outcome”); Michael L. Smith &
Alexander S. Hiland, Originalism’s Implementation Problem, 30
wM. & Mary bill rTs.
J. 1063, 1065 (2022) (discussing why originalism is better suited to academics than
actual legal questions because “judges and attorneys cherry-pick from this body of
scholarship to create a veneer of academic legitimacy for their own goal-oriented
arguments”).
137.
See
Bruen, 597 U.S at 107 (Breyer, J., dissenting) (acknowledging the “trou-
bling questions” implicated by “rely[ing] nearly exclusively on history to interpret
the Second Amendment”). For example, Justice Breyer questioned:
Do lower courts have the research resources necessary to conduct exhaus-
tive historical analyses in every Second Amendment case? What historical
regulations and decisions qualify as representative analogues to modern
laws? How will judges determine which historians have the better view of
close historical questions? Will the meaning of the Second Amendment
change if or when new historical evidence becomes available? And, most
importantly, will the Court’s approach permit judges to reach the outcomes
they prefer and then cloak those outcomes in the language of history?
Id. Justice Breyer also cited an article by Saul Cornell describing “law office his-
tory,” a “results-oriented methodology in which evidence is selectively gathered and
interpreted to produce a preordained conclusion,” to further illustrate the accepted
phenomenon that accompanies this type of analysis. Id. at 107–08 (quoting Saul
Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as
the Old Boss”, 56
uCla l. rev. 1095, 1098 (2009)).
138.
Bianchi v
. Brown, 111 F.4th 438, 474 (4th Cir. 2024) (Diaz, J., concurring)
(emphasizing the inevitable confusion resulting from Bruen due to its lack of clarity
and workable instruction).
584 vi l l a n o va law re v i e w [Vol. 70: p. 557
As the Fourth Circuit navigated Brahimi’s “labyrinth,” it accounted for
harm-reduction principles and legislative intent to fill the gaps left by the
THT Test.
139
The Bianchi court first used these methods to escape the
determination that the Second Amendment protected the weapons cov-
ered in the Act, citing their frequent use in mass shootings and similarity
to military-grade weapons to establish they are dangerous and unusual.
140
Then, it employed an analysis adjacent to interest-balancing at the second
step of the Brahimi framework, elaborately detailing the gruesome work
of the covered firearms and their everchanging technology to supple-
ment the inconclusive historical record.
141
To emphasize its consistency
with historical tradition and the novelty of assault weapons, the Court
concluded that “it would have been shocking to the Framers to witness
the mass shootings of our day.”
142
139. See id. at 473–74 (noting while the THT Test appears straightforward and
easy to apply, it is inconclusive and confusing in practice); Charles, supra note 16, at
95–110 (describing various gaps of the THT Test lower courts are left to decipher
for themselves). For a discussion of Judge Wilkinson’s use of interest-balancing in
Bianchi, see supra Part IV.
140.
See
Bianchi, 111 F.4th at 456–57 (noting the lethality of AR-15s and observ-
ing their “utility for mass killing has made the AR-15 and similar assault rifles the
most popular arms for terrorist attacks in the United States”); id. at 455 (detail-
ing the “maximum wound effect” of AR-15s, comparing it to a handgun bullet that
wounds the liver in a path of one or two inches, while an “AR-15 wound ‘will lit-
erally pulverize the liver, perhaps best described as dropping a watermelon onto
concrete’” (first quoting Nat’l Ass’n for Gun Rts. v. Lamont, 685 F. Supp. 3d 63,
100 (D. Conn. 2023); and then quoting Capen v. Campbell, 708 F. Supp. 3d 65, 87
(D. Mass 2023))). The Bianchi court described the damage of AR-15s as “cata-
strophic,” observing injuries from AR-15s can result in “‘multiple organs shattered,’
bones ‘exploded,’ and ‘soft tissue absolutely destroyed.’” Id. (quoting Del. State
Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec., 664 F. Supp. 3d 584,
599–600 (D. Del. 2023)). The Court also discussed AR-15s’ suitability for combat
and emphasized AR-15s disproportionate use in mass shootings, noting “one recent
examination found that although AR-platform rifles constituted about 5% of the
firearms in the United States, they were used in 25% of mass shootings” and “mass
shootings are over 60% more deadly when an AR-15 or similar assault rifle is used.”
Id. at 455–56. The Court then recounted the overwhelming use of AR-15s in acts
of terrorism and recent terrorist attacks and recognized the increased risk these
weapons carry for law enforcement officers. Id. at 457.
141.
See
id. at 463–64 (asserting the “more nuanced approach” was appropriate
by offering a comprehensive list of recent mass shootings, detailed description of
carnage from the shootings, and extensive information regarding “[r]apid advance-
ments in gun technology” (quoting Bruen, 597 U.S. at 27)). Despite the signifi-
cance of these factors, they have no place in the THT Test. Id. at 532 (Richard-
son, J., dissenting). Judge Richardson noted “the majority simply retells the same
death-and-destruction story it told at the plain-text stage, waxing poetic about the
dangers of gun violence and the blood of children. This is a far cry from Bruen’s
careful consideration of our Nation’s history and tradition.” Id. For a list of numer-
ous modern mass shootings that have been perpetrated using covered weapons, see
supra note 104.
142.
Bianchi
, 111 F.4th at 463 (illustrating the modernity of mass shootings
and how their consequences were at unknown the time of the Founding, citing
how they have left in their wake: “children’s bodies ‘stacked up . . . like cordwood,’”
“blood on seats, blood on the wall, blood on the emergency exit door” and “shoes
scattered, blood in the street, bodies in the street” (alteration in original) (quoting
2025] noTe 585
Additionally, the Bianchi court repeatedly cited its faith in the legisla-
ture to bolster the Act’s constitutionality.
143
The Fourth Circuit surpassed
a brief approval, deferring to Maryland’s legislature in a manner more
akin to rational basis review, the lowest level of means-end scrutiny.
144
The court expressed this deference at every step of the framework, from
outlining the tradition of firearm regulations, determining whether
the weapons are in “common use,” canvassing the record for historical
analogues, asserting a “more nuanced” approach, and reaffirming its
holding.
145
The majority defended its position by emphasizing Bruen “does not
require courts to turn their backs to democratic cries,” “mandate an
abandonment of . . . self-governance,” or “disable representative govern-
ment.”
146
To hold otherwise, the court warned, would be to consider
Silvia Foster-Frau, N. Kirkpatrick & Arelis R. Hernández, Terror on Repeat: A Rare
Look at the Devastation Caused by AR-15 Shootings,
wash. PosT (Nov. 16, 2023), https://
www.washingtonpost.com/nation/interactive/2023/ar-15-force-mass-shootings/
[https://perma.cc/2EC9-3KCY])). But see United States v. Rahimi, 602 U.S. 680,
692 (2024) (emphasizing while not exhaustive, laws existing at the Founding are
largely dispositive of what types of modern regulations should be deemed consti-
tutional). The Bianchi court departed from this directive to assert that, regard-
less which laws existed at the Founding, the Framers would have regulated modern
assault weapons or would have at least had the power to do so. See Bianchi, 111 F.4th
at 463.
143. See Bianchi, 111 F.4th at 464 (“When a weapon’s potential for widespread
criminal abuse or unreasonable capacity to inflict casualties became apparent to
lawmakers, they did not hesitate to regulate in response. We hold that the Maryland
statute fits comfortably within this venerable tradition.”); see also id. at 462 (“The
statute is one of many in a storied tradition of legislatures perceiving threats posed
by excessively dangerous weapons and regulating commensurately.”); id. at 464
(“Legislatures, since the time of our founding, have responded to the most urgent
and visible threats posed by excessively harmful arms with responsive and propor-
tional legislation.”).
144.
See
Donna Matias, What the Heck is Rational Basis Scrutiny?,
PaC. leGal
f
ound. (Aug. 15, 2022), pacificlegal.org/what-the-heck-is-rational-basis-
scrutiny/ [https://perma.cc/G7EW-L9UP] (explaining under rational review, laws
are presumed constitutional, and the plaintiff has the burden of proving the govern-
ment does not have a legitimate interest and there is no reasonable fit between the
challenged law and interest). Because of this high evidentiary burden for plaintiffs,
courts typically rule in favor of the government. Id.
145. See Bianchi, 111 F.4th at 441–42 (“Moreover, the Maryland law fits comfort-
ably within our nation’s tradition of firearms regulation. It is but another example
of a state regulating excessively dangerous weapons once their incompatibility with
a lawful and safe society becomes apparent, while nonetheless preserving avenues
for armed self-defense.”). When exploring the correct approach for whether a
weapon is in common use, the court was concerned with “foreclos[ing] the ability
of legislators to assess these characteristics and to enhance their knowledge through
observation and experience.” Id. at 461. Thus, the court concluded that “[t]he
statute is one of many in a storied tradition of legislatures perceiving threats posed
by excessively dangerous weapons and regulating commensurately.” Id. at 462.
146. See id. at 442, 473 (arguing it is unwise for a court to take decisions to reg-
ulate firearms out of the hands of the people and their representatives when “lethal
technologies are proceeding at an accelerated and indeed unprecedented pace”).
The majority continued, “imagine that you mobilize and lobby your representatives
586 vi l l a n o va law re v i e w [Vol. 70: p. 557
itself god-like.
147
While these concerns are not entirely misplaced, Bruen
made clear such deference is expressly prohibited because interest-
balancing performed by legislators is preempted by the interest-balancing
inherent to the right itself.
148
In turn, the Bianchi court’s pointed, poli-
cy-centered analysis did little more than confirm its defiance of Supreme
Court precedent, potentially exacerbating an already “erratic and unprin-
cipled body of law.”
149
C. When in Doubt, Go to the Library: Correctly Applying the THT Test
While much of the Bianchi court’s majority opinion is effectively
dicta, its finding of historical analogues and a consistent regulatory tradi-
tion were sufficient to uphold the Act.
150
Despite its determination that
the weapons prohibited by the Act were not covered by the plain text of
to pass preventative legislation, only to be told by a court that your Constitution
renders you powerless to save others from your family’s fate.” Id. at 472.
147.
See
id. at 473 (citing a quote from the Roman Emperor Vespasian, “[w]oe
is me, I think I am becoming a god,” to emphasize the idea the court would not
wholly disregard legislative intent because doing so would foster “a judicial envi-
ronment where Vespasian would fit right in” (quoting
oxford ConCise diCTionary of
Q
uoTaTions 386 (Susan Ratcliffe ed., 6th ed. 2011))).
148.
See
N.Y
. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 26 (2022)
(“[W]hile that judicial deference to legislative interest balancing is
understandable—and, elsewhere, appropriate—it is not deference that the Con-
stitution demands here.”). The Bruen Court went on to emphasize that the only
thing the Court should defer to is the fact that “[t]he Second Amendment ‘is the
very
product
of an interest balancing by the people.’” Id. (quoting District of Colum-
bia v. Heller, 554 U.S. 570, 635 (2008)); see also id. at 29 n.7 (prohibiting courts from
“engag[ing] in independent means-end scrutiny under the guise of an analogical
inquiry”). The Court further clarified that “[a]nalogical reasoning requires judges
to apply faithfully the balance struck by the founding generation to modern cir-
cumstances” and “is not an invitation to revise that balance through means-end
scrutiny.” Id.; see also id. at 111–12 (Breyer, J., dissenting) (emphasizing the THT
Test has hardly strayed from the motives and results of interest-balancing). Justice
Breyer observed that:
Ironically, the only two “relevan[t]” metrics that the Court does identify are
“how and why” a gun control regulation “burden[s the] right to armed self-
defense.” In other words, the Court believes that the most relevant metrics
of comparison are a regulation’s means (how) and ends (why)—even as it
rejects the utility of means-end scrutiny.”
Id. (alterations in original) (citation omitted) (quoting id. at 29 (majority opinion)).
149.
Bianchi
, 111 F.4th at 474 (Diaz, J., concurring) (noting the unpredictabil-
ity of Second Amendment inquiries post-Bruen); id. at 479 (Gregory, J., concurring)
(“I believe that binding precedent prohibits us from considering . . . a legislature’s
interest in limiting or preventing [tragedies], when assessing the validity of a statute
that implicates the Second Amendment.”); id. at 535 (Richardson, J., dissenting)
(arguing enforcing the Constitution over adverse legislation does not violate the
separation of powers).
150.
See
id. at 476 (Gregory, J., concurring) (explaining while he could not
join the majority due to its consideration of “governmental interests of safety and
order,” he nevertheless concurred in the judgement because “Maryland’s statute is
relevantly similar to historic weapons prohibitions”). For a discussion of the Fourth
Circuit’s finding of historical analogues and analysis of the nation’s tradition of fire-
arm regulation, see supra Part IV.
2025] noTe 587
the Second Amendment, the Fourth Circuit continued to the second step
of the THT Test, acknowledging how “bypass[ing] an inquiry into history
here would be an inexplicable omission.”
151
The majority pointed to a
slew of regulations relevantly similar to the challenged AWBs, such as
those on gunpowder and Bowie knives, and later on Tommy guns and
machineguns.
152
The adequacy of these analogues becomes exceedingly clear when
compared with the amorphous level of similarity required by Bruen and
the further attenuation permitted by Rahimi.
153
In Rahimi, the Court
addressed the unclear scope of generality left by Bruen by rephrasing the
notion that a modern regulation must be “consistent with this Nation’s
historical tradition of firearm regulation” to instead require that it be
“consistent with the principles that underpin our regulatory tradition.”
154
Nelson Lund,
Second Amendment Originalism, “General Law,” and Rahimi’s
Two-Fold Failure, 78
sMu l. rev. (forthcoming 2025) (manuscript at 34) (https://
papers.ssrn.com/sol3/papers.cfm?abstract_id=4994835 [https://perma.cc/N6V5-
V3A7]) (“Whereas Bruen had demanded ‘consisten[cy] with this Nation’s historical
tradition of firearm regulation,’ Rahimi asked a different question: ‘whether the
challenged regulation is consistent with the principles that underpin [the Nation’s]
regulatory tradition.’ . . . But what do Rahimi’s ‘principles’ turn out to be? Common
sense!” (first and second alterations in original) (first quoting N.Y. State Rifle & Pistol
Ass’n, Inc. v. Bruen, 507 U.S. 1, 17 (2022); and then quoting United States v. Rahimi,
602 U.S. 680, 681 (2024))). The author further argues “Rahimi abandoned Bruen’s
bold statement of its holding while purporting to follow it.” Id. at 10; see also Blocher
& Reuben, supra note 17, at 138 (discussing how Bruen did not define or suggest an
appropriate level of similarity to be used in lower courts).
154. Donlon, supra note 132, at 31 (emphasis added) (first quoting Bruen, 597
U.S. at 17; and then quoting Rahimi, 602 U.S. at 692) (emphasizing the importance
of the “principles” language in Rahimi). The author cites to the fact that the “princi-
ples” language was used four times throughout the opinion, with Justice Sotomayor
finding it “an important methodological point that bears repeating” and Justice
Jackson “a welcome ‘clarifying effort[]”’ as evidence that the change was pointed
and intentional. Id. (alteration in original) (first quoting Rahimi, 602 U.S. at 702
(Sotomayor, J., concurring); and then quoting id. at 740 (Jackson, J., concurring)).
In addition to the “principles” language, Bruen called for historical analogues that
were distinctly similar, while Rahimi emphasized that relevantly similar historical ana-
logues were sufficient, further suggesting Rahimi loosened the constraints of Bruen.
Id. at 32; see also Rahimi Note, supra note 20, at 331–32 (confirming the importance
588 vi l l a n o va law re v i e w [Vol. 70: p. 557
The addition of “principles” suggests a broader scope of generality is
permissible when assessing the historical record, and therefore a lower
standard of similarity.
155
Despite this restated standard, Rahimi main-
tained that “[w]hy and how the regulation burdens the right are central
to [the] inquiry.”
156
In Bianchi, the majority accounted for these considerations in exam-
ining the nation’s regulatory tradition, concluding: “legislatures, since
the time of our founding, have responded to the most urgent and visible
threats posed by excessively harmful arms with responsive and propor-
tional legislation.”
157
The Bianchi court skillfully applied Rahimi’s revised
rule to identify a broader scope of generality, allowing it to account for
legislative intent while acting in accordance with regulatory tradition.
158
In short, Bianchi would have been decided the same way had it wholly
adhered to Brahimi in light of its finding of sufficient historical analogues
of the “principles” language by analyzing how the Court dismissed analogues due
to minor differences in Bruen, though “papered over” these differences in Rahimi).
155.
See
Rahimi Note, supra note 20, at 325 (emphasizing the different stan-
dards the Court used when it applied Bruen in Rahimi by showing that each case
would have likely been decided differently had it adhered to the other’s rule). For
these reasons, it is clear that Rahimi is “better read as a course correction in the
Court’s Second Amendment jurisprudence than the clarification it purports to be.”
Id. at 332. While Rahimi still does not clearly articulate the correct level of specificity
for locating historical analogues, its findings suggest that a much broader scope of
generality is intended. Id. at 331.
156.
Rahimi
, 602 U.S. at 692 (emphasis added) (“For example, if laws at the
founding regulated firearm use to address particular problems, that will be a strong
indicator that contemporary laws imposing similar restrictions for similar reasons
fall within a permissible category of regulations.”); id. at 698 (finding a sufficient
“how” to be disarming and a sufficient “why” to be “mitigat[ing] demonstrated
threats of physical violence”).
157. Bianchi, 111 F.4th at 464 (holding the Act fits well within America’s tradi-
tion of regulating weapons when their “potential for widespread criminal abuse or
unreasonable capacity to inflict casualties” becomes apparent); see also Bruen, 597
U.S at 29 (explaining “[w]hile [the Court does] not now provide an exhaustive
survey of the features that render regulations relevantly similar under the Second
Amendment,” “how” and “why” are at least two metrics courts should consider);
Rahimi, 602 U.S. at 698 (ultimately finding the sufficient historical analogues to the
regulation at issue that also “restrict[ed] gun use to mitigate demonstrated threats
of physical violence”).
158.
See
Bianchi, 111 F.4th at 471 (“Throughout this history lies a strong tra-
dition of regulating those weapons that were invented for offensive purposes
and were ultimately proven to pose exceptional dangers to innocent civilians.”);
id. at 466 (noting “[w]hen confronted with these ‘public safety concerns over the
increase in gun violence and the proliferation of concealable weapons,’ legislatures
responded in kind,” from restricting carry to completely banning some weapons
(quoting Brian DeLay, The Myth of Continuity in American Gun Culture, 113
Calif.
l. r
ev. 1, 37 (2025))); id. at 466–67 (“In addition to regulating firearms, legisla-
tures targeted excessively dangerous weapons such as Bowie knives, dirks, sword
canes, metal knuckles, slungshots, and sand clubs.” (footnotes omitted)); id. at 468
(citing a case from 1840 which held “[t]he Legislature . . . ha[s] a right to prohibit
the wearing or keeping weapons dangerous to the peace and safety of the citizens”
(alterations in original) (quoting Aymette v. State, 21 Tenn. 154, 159 (1840))); id.
at 468 (explaining throughout the eighteenth and nineteenth centuries legislatures
regulated weapons when it became obvious they were contributing to crime).
2025] noTe 589
and a consistent regulatory tradition.
159
Furthermore, the Fourth Cir-
cuit’s findings are compatible with post-Bruen circuit court decisions
concerning AWBs similar to the Act, depicting a uniform interpretation
of recent changes.
160
Bianchi bridged the gap between threadbare his-
torical analogues and the increasing perils of modern gun violence to
minimize the myriad of concerns inherent in the THT Test.
161
vi. Mi sCh i e f Ma n aGe d: Pav i nG a way fo r wa r d
In this case, the centuries-old adage rings true: two wrongs do not
make a right.
162
Though Bianchi offers a convincing, sensible argument
addressing modern firearm concerns, it flies in the face of Supreme
Court directives.
163
The Bianchi court’s use of interest balancing under-
mines an otherwise principled holding, indicating that making these
considerations in a less overt way may be more credible and effective in
safeguarding against appeal.
164
Moreover, the Fourth Circuit’s opinion
further signals to the Court it must refine the THT Test because, interest
balancing analysis aside, the majority found sufficient historical ana-
logues to support one conclusion, while the dissent reached another.
165
The Court set out to provide a more robust, objective standard to
review Second Amendment questions with the THT Test; however, its
159. See Rahimi, 602 U.S. at 692 (requiring the challenged regulation is “rel-
evantly similar” to laws historically permitted). Rahimi further expounded a more
lenient standard, finding that Bruen did not intend to “suggest a law trapped in
amber” and that the Second Amendment undoubtedly extends beyond permitting
regulations solely concerning “muskets and sabers.” Id. at 691–92.
160.
See
James Charles, The Second Amendment on Appeal Post-Bruen,
duke
C
Tr. for firearMs l. (Mar. 22, 2024), firearmslaw.duke.edu/2024/03/the-
second-amendment-on-appeal-post-bruen [https://perma.cc/26FA-VQFW] (citing
a comprehensive listing of recent cases in which courts upheld firearm regulations).
161.
See
Smith, supra note 7, at 798 (explaining how engaging in interest-
balancing “allows courts to account for present-day circumstances, the nature of
problems a government is trying to address, and the likelihood that a law will solve
or mitigate these problems,” while the THT Test does not).
162. For a discussion of the Bianchi court’s application of the Brahimi frame-
work, see supra Part V.
163. See Bianchi, 111 F.4th at 479 (Gregory, J., concurring) (“In my view, the
majority’s analysis is comprised of the very sort of means-end scrutiny that Bruen
explicitly forbids courts from applying in the Second Amendment context.”); id. at
483 (Richardson, J., dissenting) (“But the majority’s rationale disregards the Sec-
ond Amendment and controlling precedent. Rather than considering the Amend-
ment’s plain text, the majority sidesteps it altogether and concocts a threshold
inquiry divorced from the right’s historic scope.”).
164.
See
Charles, supra note 16, at 146 (acknowledging methods for lower
courts to highlight the difficulties brought about by Bruen, while emphasizing,
“[l]ower court judges cannot, of course, simply ignore Supreme Court decisions that
require them to undertake complex endeavors and make difficult judgment calls”).
165.
See
Bianchi, 111 F.4
th at 474 (Diaz, J., concurring) (observing the diver-
gent “principal opinions” in Bianchi illustrate the inconsistency resulting from Bra-
himi, and noting “[e]ach was written by a thoughtful colleague, who engaged in an
exhaustive sweep of history, only to reach diametrically opposed conclusions about
what that history means”).
590 vi l l a n o va law re v i e w [Vol. 70: p. 557
attempt was ultimately unsuccessful.
166
Due to the vagueness of the
history-focused approach and the conflicting standards of Brahimi, courts
are exercising more discretion than ever, even when unintended.
167
Judges of all stripes agree that history deserves a place in analyzing
challenged Second Amendment regulations; however, accounting for
legislative intent and modern interests is also necessary to reach well-
reasoned conclusions.
168
Re-introducing interest balancing consider-
ations to the framework with clearer expectations would provide additional
guidance to lower courts, better accord with typical constitutional analy-
sis, and restore precedent to Second Amendment jurisprudence.
169
To
avoid claims that the Second Amendment is a “constitutional orphan,”
providing a standard akin to strict scrutiny could be the start of a com-
promise for pro-gun and gun control advocates alike.
170
166. See Chip Brownlee, A Supreme Court Decision Claimed to Take Partisanship Out
of Gun Cases. It Didn’t.,
TraCe (Oct. 24, 2024), www.thetrace.org/2024/10/
judges-partisan-gun-cases-bruen-courts/ [https://perma.cc/2XCM-LCYD]
(discussing how the Court claimed to “depoliticize” Second Amendment jurispru-
dence by limiting judicial discretion, however it actually “made federal courts even
more of a political battleground, where gun laws rise and fall along partisan lines”).
For a discussion of Justice Kavanaugh’s claims that the THT Test is more effective at
curbing judicial discretion compared with empirical findings post-Bruen, see supra
note 131. For further discussion of how the THT Test failed in its mission to remain
truer to the democratic process, see infra note 172.
167. For a discussion of how the THT Test’s unclear standard allows judges’
policy views to affect decisions because there are few guardrails to the framework,
see supra Section V.A.
168.
See
United States v. Rahimi, 602 U.S. 680, 706 (2024) (Sotomayor, J., con-
curring) (“History has a role to play in Second Amendment analysis . . . .”). Justice
Kagan and Justice Sotomayor, two of the Courts’ liberal justices, agree that history
should be accounted for; however, they find “Bruen’s myopic focus on history and
tradition” to be inadequate. Id. at 706.
169. See Darrell A. H. Miller, Text, History, and Tradition: What the Seventh Amend-
ment Can Teach Us About the Second, 122
yale l.J. 852, 857 (2013) (describing how,
other than the Seventh Amendment, constitutional questions typically employ inter-
est-balancing to account for present-day developments and needs); Nelson Lund,
Bruen’s Preliminary Preservation of the Second Amendment, 23
federalisT soC’y rev. 279,
283 (2022) (describing how “Bruen wipe[d] away a large body of circuit precedent
and instruct[ed] the lower courts to start over with a new interpretive method”).
170.
See
Silvester
v. Becerra, 138 S. Ct. 945, 952 (2018) (Thomas, J., dissenting)
(arguing that “[t]he right to keep and bear arms is apparently this Court’s consti-
tutional orphan” because the Court did not grant certiorari in the case). Justice
Thomas detailed his disagreement with the intermediate scrutiny used in Silvester
because it was less stringent than the intermediate security applied to other bodies
of law and ultimately functioned like rational basis review. Id. at 945; see also N.Y.
State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 26 (2022) (describing how the
Court denounced intermediate scrutiny because judges were ultimately too lax in
their analysis); Strict Scrutiny,
Cornell l. sCh.: leGal info. insT., www.law.cor-
nell.edu/wex/strict_scrutiny [https://perma.cc/L3DX-GKB7] (last visited July 11,
2025) (defining strict scrutiny as “the highest standard of review”). Strict scrutiny
presumes a regulation is unconstitutional and shifts the burden to the government
to prove its validity. Id. To pass this high bar, “the government must show that its
actions were ‘narrowly tailored’ to further a ‘compelling government interest,’ and
that they were the ‘least restrictive means’ to further that interest.” Id. Strict scru-
tiny is reserved for fundamental right or suspect classifications, which would align
2025] noTe 591
Until the Court provides further clarification on the THT Test, Bian-
chi demonstrates how utilizing a higher level of generality to account for
legislative intent can bridge the gap left by the Brahimi approach in cases
where the challenged regulation is not covered by the Second Amend-
ment and the nation’s history and tradition are not dispositive.
171
Under
the current framework, courts are expected to defer to the legislators
of yesterday to account for the nuanced problems faced by the elected
officials of today.
172
As a result, courts risk imprudently striking down
AWBs similar to the Act, which would give rise to dangerous implications
and diminish the effectiveness of future laws.
173
In sum, if the Court
is sincere its intention to limit judicial activism through the THT Test,
incorporating legislative intent is a clear solution.
174
Recently, the Supreme Court denied certiorari in Snope v. Brown,
175
however multiple justices expressed disagreement with this decision and
the underlying holding in Bianchi.
176
It remains likely the Court takes
with the Second Amendment after it was deemed a fundamental right in McDonald.
Id.
171.
For
an analysis of how the Bianchi court deferred to Maryland’s legislature
to bolster its holding, see supra Part IV.
172.
Compare
Rahimi, 602 U.S. at 746–47 (Jackson, J., concurring) (“That
ideal—key to our democracy—thrives on legal standards that foster stability, facili-
tate consistency, and promote predictability. So far, Bruen’s history-focused test ticks
none of those boxes.”), with id. at 734 (Kavanaugh, J., concurring) (arguing that
the historical approach “intrudes less upon the” presumably current “democratic
process” because it is rooted in decisions made by elected officials at the Founding
(quoting McDonald v. City of Chicago, 561 U.S. 742, 805 (2010))); see also id. at
705–06 (Sotomayor, J., concurring) (“Under the dissent’s approach, the legislatures
of today would be limited not by a distant generation’s determination that such a
law was unconstitutional, but by a distant generation’s failure to consider that such
a law might be necessary.”).
173.
See
Christopher S. Koper, William D. Johnson, Jordan L. Nichols, Ambro-
zine Ayers & Natalie Mullins, Criminal Use of Assault Weapons and High-Capacity Semi-
automatic Firearms: An Updated Examination of Local and National Sources, 95
J. urb.
h
ealTh 313, 319 (2018) (describing how crime rates surged after the Federal Assault
Weapon Ban expired, especially in urban areas such as Baltimore); Clark Merre-
field, Gun Buybacks: What the Research Says,
JournalisT’s res. (Oct. 21, 2022), https://
journalistsresource.org/health/gun-buybacks-what-the-research-says/ [https://
perma.cc/U9DU-RE65] (explaining how once assault weapons are permitted, it is
very difficult to remove them from the market because gun buyback schemes are
ineffective for a myriad of reasons, and result in a small portion of permitted gun
owners from turning in their weapons).
174.
See
Brown, Epstein & Gulati, supra note 130, at 23 (concluding “that Bruen
must be refined, the test for gun regulation made more intelligible and less sub-
jective, so that lower courts and legislatures can do their job better” following a
comprehensive study of Bruen’s effect in lower courts). For a discussion on how
turning to legislators during times of uncertainty limits judges’ personal politics
from affecting decisions, see supra Section V.A.
175.
145 S. Ct. 1534 (2025) (denying cer
tiorari to Bianchi on June 2, 2025).
Bianchi was renamed Snope v. Brown because Dominic Bianchi is no longer a Mary-
land resident. Id.
176.
See
id. at 1534 (noting Justice Gorsuch and Justice Alito would have
granted certiorari). While Justice Kavanaugh respected the denial, he stated:
“Additional petitions for certiorari will likely be before this Court shortly and, in
592 vi l l a n o va law re v i e w [Vol. 70: p. 557
one of the many AWB cases petitioning for review, and it would be par
for course to see a categorical holding that AWBs are unconstitutional
due the Court’s primarily conservative make-up and expansive view of
the Second Amendment.
177
However, this is unlikely to occur as taking
this decision out of the hands of the people and their elected repre-
sentatives is a blatant affront to the freedom and democracy this Court
claims to promote.
178
Though it is unclear if and how the Court will fur-
ther address the ambit of the Second Amendment, one thing is certain:
continuing with Brahimi’s confusing and malleable standard only stands
to further threaten the safety of the American people and the integrity
of the justice system.
179
my view, this Court should and presumably will address the AR–15 issue soon, in
the next Term or two.” Id. Justice Thomas offered a scathing dissent of both the
Court’s denial of review and the Fourth Circuit’s holding, emphasizing that he
“would not wait to decide whether the government can ban the most popular rifle
in America.” Id. at 1538.
177.
See
Who Are the Justices on the Supreme Court?,
b
b
C
(Feb. 8, 2024), www.
bbc.com/news/magazine-33103973 [https://perma.cc/UJH5-K9AM] (detailing the
ideological tendencies of current Supreme Court justices and noting “[t]he current
court has been called the most conservative-leaning in modern US history”). With
Donald Trump occupying the presidency once again, it is likely the conservative-laden
Court will continue, as he previously vowed, “the justices that I’m going to
appoint . . . will be protecting the Second Amendment.” Transcript of the Third Debate,
n.y. TiMes (Oct. 20, 2016), www.nytimes.com/2016/10/20/us/politics/
third-debate-transcript.html [https://perma.cc/72XK-FFX3] (reporting the tran-
script of a 2016 presidential debate between Hillary Clinton and Donald Trump).
178.
See
Brownlee, supra note 166 (drawing attention to the blurring of the
judicial and legislative branches by quoting a former federal circuit court judge:
“If the public views judges as politicians wearing robes, it raises the question of why
we even need judges to decide these issues versus letting the actual politicians—the
legislators—decide these questions”).
179.
See
Marina Dunbar, Federal Judge Strikes Down Illinois Assault Weapon
Ban,
The Guardian (Nov. 8, 2024, 7:59 PM), www.theguardian.com/
us-news/2024/nov/08/federal-judge-illinois-assault-weapons-ban
[
https://
perma.cc/VB6Y-2J84] (reporting a Trump-appointed district judge struck down
the Protect Illinois Communities Act because of an elusive connection between
AWBs and rising property crimes). This ruling is especially dangerous as Chicago
has a disproportionately greater firearm homicide rate than other major U.S. cit-
ies, including a rate that is “six times higher than New York City’s and three times
higher than in Los Angeles.” Impact of Gun Violence in Illinois,
one aiM illinois,
oneaimil.org/the-issue/impact-of-gun-violence/ [https://perma.cc/
ZDG8-ESKM] (last visited July 12, 2025); see also Ass’n of New Jersey Rifle & Pistol
Clubs, Inc. v. Platkin, 742 F. Supp. 3d 421 (D.N.J. 2024) (discussing a recent New
Jersey AWB that was struck down despite the judge feeling uncomfortable doing
so due to increasing gun violence across the country).