Ocean State Tactical, LLC v. State of Rhode Island ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1072
OCEAN STATE TACTICAL, LLC, d/b/a Big Bear Hunting and Fishing
Supply; JONATHAN HIRONS; JAMES ROBERT GRUNDY; JEFFREY GOYETTE;
MARY BRIMER,
Plaintiffs, Appellants,
v.
STATE OF RHODE ISLAND; COLONEL DARNELL S. WEAVER, in his
official capacity as the Superintendent of the Rhode Island
State Police; PETER F. NERONHA, in his official capacity as the
Attorney General for the State of Rhode Island,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Kayatta, Selya, and Gelpí,
Circuit Judges.
Matthew D. Rowen, with whom Paul D. Clement, Erin E. Murphy,
Mariel A. Brookins, Clement & Murphy, PLLC, Michael A. Kelly, and
Kelly Souza & Parmenter P.C. were on brief, for appellants.
Christopher Renzulli on brief for National African American
Gun Association, Inc., Asian Pacific American Gun Owners
Association, DC Project Foundation, Inc., Operation Blazing Sword,
Inc., Gabriela Franco, and Liberal Gun Club, amici curiae.
Athanasia O. Livas, Peter A. Patterson, David H. Thompson,
and Cooper & Kirk, PLLC on brief for National Shooting Sports
Foundation, Inc., amicus curiae.
Sarah W. Rice, Assistant Attorney General, Rhode Island, with
whom Peter F. Neronha, Attorney General, Rhode Island, Keith
Hoffmann, Special Assistant Attorney General, Rhode Island, and
Samuel Ackerman, Special Assistant Attorney General, Rhode Island
were on the brief, for appellees.
Andrea Joy Campbell, Attorney General, Massachusetts, Julia
Green, Assistant Attorney General, Massachusetts, Grace Gohlke,
Assistant Attorney General, Massachusetts, on brief for
Massachusetts, California, Colorado, Connecticut, Delaware, the
District of Columbia, Hawai'i, Illinois, Maryland, Michigan,
Minnesota, New Jersey, New York, Oregon, Pennsylvania, Vermont,
Washington, and Wisconsin, amici curiae.
Janet Carter, William J. Taylor, Jr., Eleuthera O. Sa, and
Everytown Law on brief for Everytown for Gun Safety, amicus curiae.
Timothy C. Hester, Daniel Weltz, Rachel Bercovitz, Covington
& Burling LLP, Douglas N. Letter, Shira Lauren Feldman, Esther
Sanchez-Gomez, and Ciara Wren Malone on brief for Brady Center to
Prevent Gun Violence, Giffords Law Center to Prevent Gun Violence,
and March for Our Lives, amici curiae.
March 7, 2024
KAYATTA, Circuit Judge. In response to proliferating
mass shootings across the country, the Rhode Island General
Assembly enacted House Bill 6614, the Large Capacity Feeding Device
Ban of 2022 ("HB 6614" or "LCM ban"). The legislation amended
Rhode Island's Firearms Act to prohibit possession of certain large
capacity feeding devices or magazines ("LCMs"), defined as those
that hold more than ten rounds of ammunition. R.I. Gen. Laws § 11-
47.1-3. As a result, all owners of LCMs were required to
(a) permanently modify their LCMs to accept no more than ten
rounds; (b) sell them to a firearms dealer; (c) remove them from
the state; or (d) turn them into law enforcement. Id.
Four gun owners and a registered firearms dealer joined
as plaintiffs to file this lawsuit, alleging that HB 6614 violates
the United States Constitution. In due course, the district court
considered and denied plaintiffs' motion to preliminarily enjoin
enforcement of HB 6614. Ocean State Tactical, LLC v. Rhode Island
("Ocean State"), 646 F. Supp. 3d 368, 373 (D.R.I. 2022).
After hearing plaintiffs' appeal, we now affirm the
district court's denial of the preliminary injunction, finding
that plaintiffs have not shown a sufficient likelihood of success
on the merits of their claims. Our reasoning follows.
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I.
For nearly a century, Rhode Island has banned possession
of certain items "associated with criminal activity." In 1927,
the state's General Assembly proscribed machine guns1 and
silencers. 1927 R.I. Pub. Laws 256. In 1956, it banned armor-
piercing bullets, R.I. Gen. Laws § 11-47-20.1, bombs, and
bombshells. Id. § 11-47-21. In 2018, it prohibited bump stocks.
Id. § 11-47-8.1. And on June 21, 2022, the legislature passed
HB 6614, adding LCMs to this list of items that most Rhode
Islanders may not possess.2 Ocean State, 646 F. Supp. 3d at 372.
Rhode Island defines an LCM as
a magazine, box, drum, tube, belt, feed strip,
or other ammunition feeding device which is
capable of holding, or can be readily extended
to hold, more than ten (10) rounds of
ammunition to be fed continuously and directly
therefrom into a semiautomatic firearm.
R.I. Gen. Laws § 11-47.1-2(2). By holding multiple rounds of
ammunition, magazines enable shooters to fire repeatedly without
reloading. While some firearms have "fixed" magazines that are
integral to the frame, "most modern semi-automatic firearms" use
1 The 1927 law defined "machine gun" as any automatic weapon,
or any semiautomatic weapon which shoots more than twelve shots
semiautomatically without reloading.
2 The possession ban exempts certain law enforcement
officers, retired law enforcement officers, and members of the
armed services. Id. § 11-47.1-3(b)(2)-(3). The ban also excepts
from its reach tubes that can hold exclusively .22 caliber
ammunition. Id. § 11-47.1-2(2).
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detachable magazines. Ocean State, 646 F. Supp. 3d at 376. When
a magazine is detachable, it can be removed and replaced with
another fully loaded magazine, "much as an extra battery pack gets
swapped in and out of a battery-operated tool." Id. at 375.
HB 6614 includes a grace period of 180 days within which
to comply with the ban. R.I. Gen. Laws § 11-47.1-3(b)(1). The
legislation punishes the possession of LCMs after the grace period
with up to five years in prison. Id. § 11-47.1-3(a); Ocean State,
646 F. Supp. 3d at 373.
Before the grace period ended, plaintiffs sued the State
of Rhode Island, its Attorney General, and its Superintendent of
State Police (collectively "the State" or "Rhode Island") in
federal district court, claiming that HB 6614 violated the Second
Amendment, Fifth Amendment's Takings Clause, and Fourteenth
Amendment's Due Process Clause. Plaintiffs sought a declaration
that the LCM ban was unconstitutional, and moved for a preliminary
injunction against its enforcement while this lawsuit proceeded.
After considering the parties' arguments and numerous declarations
from expert witnesses, the district court denied the preliminary
injunction primarily on the basis that plaintiffs were unlikely to
succeed on any of their constitutional claims. See Ocean State,
646 F. Supp.3d at 373-74. Plaintiffs timely appealed.
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II.
"A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest." Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). The movant's likelihood
of success on the merits is the "main bearing wall" of our
analysis. W Holding Co. v. AIG Ins. Co. - Puerto Rico, 748 F.3d
377, 383 (1st Cir. 2014).
We review the denial of a preliminary injunction for
abuse of discretion. Together Emps. v. Mass Gen. Brigham Inc., 32
F.4th 82, 85 (1st Cir. 2022). Under that deferential standard,
"[w]e review the district court's factual findings for clear error"
and "its legal conclusions de novo." Id. The parties dispute
whether the district court's findings of "legislative facts for
its own analyses" are subject to clear error review, but resolution
of this dispute makes no difference to the outcome of this appeal.
Finally, we may "affirm [the district court's] decision on any
basis supported by the record and the law." Lydon v. Loc. 103,
Int'l Bhd. of Elec. Workers, 770 F.3d 48, 53 (1st Cir. 2014).
In concluding that plaintiffs were unlikely to succeed
on any of their constitutional claims, the district court reasoned
that HB 6614 did not violate the Second Amendment because
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plaintiffs failed to prove that "LCMs are 'Arms' within the meaning
of the Second Amendment's text." Ocean State, 646 F. Supp. 3d at
374. It then found that HB 6614 was consistent with the Fifth
Amendment as a valid use of the police power, and posed no
vagueness or retroactivity problems under the Fourteenth
Amendment. Id. As to the effect of any injunction on the public
interest, the district court determined that the LCM ban promotes
public safety because, "in a mass shooting incident every pause to
reject a spent magazine and load a new one represents the
opportunity to preserve a specific life -- or more than one." Id.
at 401. And because that same "momentary interruption" to
plaintiffs "is not the kind of irreparable harm required for a
preliminary injunction to issue," the district court ultimately
concluded that "the State is entitled to enforcement" of its LCM
ban.3 Id. at 400-01.
Plaintiffs do not argue on appeal that the balance of
irreparable harms and the effect on the public interest mandate an
injunction even if their claims are not likely to succeed on the
merits. Rather, defining the harm as the denial of a
constitutional right, and the public interest as disfavoring such
Both parties construe the district court's opinion as
3
requiring the State to "ensur[e] that any forfeited magazines be
retained in a safe manner so that they may be returned to their
owners if a permanent injunction is granted in the future." Id.
at 400. The State does not challenge this requirement.
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a denial, they rest their appeal on the argument that they are
likely to prevail on the merits of at least one of their
constitutional claims. We focus our review accordingly.
III.
A.
To assess plaintiffs' claim that Rhode Island's LCM ban
violates the Second Amendment, we proceed in the manner directed
by the Supreme Court in District of Columbia v. Heller, 554 U.S.
570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010), and
most recently in New York State Rifle & Pistol Ass'n, Inc. v.
Bruen, 597 U.S. 1 (2022). Under that approach, we first consider
whether "the Second Amendment's plain text covers" the possession
of LCMs. Bruen, 597 U.S. at 17. If it does, we then consider
whether Rhode Island's ban is "consistent with this Nation's
historical tradition of firearm regulation" and thus permissible
under the Second Amendment. Id.
As to the first consideration, we find it unnecessary on
this appeal to decide whether the district court erred in deeming
LCMs outside the realm of "arms" protected by the plain text of
the Second Amendment. Instead, we assume that LCMs are "arms"
within the scope of the Second Amendment and proceed to consider
whether HB 6614 is consistent with our history and tradition.
Plaintiffs contend that because firearms capable of
firing more than ten rounds without reloading "are nothing new"
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and have at times been unregulated, Rhode Island's ban is at odds
with tradition. To support this position, they point out that
some multi-shot firearms existed in the late 1700s, and others
were more common by the mid-to-late 1800s in the form of the Henry
and Winchester rifles. But as plaintiffs concede, today's
semiautomatic weapons fitted with LCMs are "more accurate and
capable of quickly firing more rounds" than their historical
predecessors. And they are substantially more lethal.
More importantly, we find in the record no direct
precedent for the contemporary and growing societal concern that
such weapons have become the preferred tool for murderous
individuals intent on killing as many people as possible, as
quickly as possible. This is unsurprising, given evidence that
"the first known mass shooting resulting in ten or more deaths"
did not occur in this country until 1949.4 Oregon Firearms Fed'n,
Inc. v. Brown, 644 F. Supp. 3d 782, 803 (D. Or. 2022). Likewise,
"[a]t the Founding, there was no comparable problem of gun violence
at schools."5
4The record suggests that mass shootings have become more
frequent and more deadly. See James Densley & Jillian Peterson,
Editorial, We Analyzed 53 Years of Mass Shooting Data. Attacks
Aren't Just Increasing, They're Getting Deadlier, L.A. Times
(Sept. 1, 2019), https://perma.cc/TV49-J74J (noting that, as of
the study's publication in 2019, 20% of mass shootings in
approximately the last fifty years had occurred within the last
five years, and 33% of those since 2010).
Joseph Blocher & Eric Ruben, Originalism-by-Analogy and
5
Second Amendment Adjudication, 133 Yale L.J. 99, 156 (2023).
- 9 -
Concern about the increasing frequency of LCM-aided mass
shootings today prompted the Rhode Island legislature to pass
HB 6614.6 And since the record contains no evidence that American
society previously confronted -- much less settled on a resolution
of -- this particular concern, we have no directly on-point
tradition on which to rely in determining whether Rhode Island's
ban is consistent with our history and tradition.
This lack of directly on-point tradition does not end
our historical inquiry, but it does affect our mode of analysis.
The Supreme Court has instructed that cases like this one
"implicating unprecedented societal concerns . . . may require a
more nuanced approach" to historical analysis. Bruen, 597 U.S. at
27. To that end, it has cautioned that we not limit our
consideration to whether Rhode Island's law is "a dead ringer for
historical precursors" or has "a historical twin." Id. at 30. We
must instead employ "analogical reasoning" to determine whether
historical analogues are "relevantly similar." Id. at 28 (quoting
(detailing the precipitous rise in school shootings from "eleven
shootings a decade ago" to "ninety-three shootings during the 2020-
2021 school year").
6 See Press Release, Rhode Island Gen. Assembly, Assembly
Approves Large-Capacity Magazine Ban (June 14, 2022),
https://perma.cc/B4LX-PNLR ("High-capacity magazines have enabled
mass shooters to commit the most devastating, appalling, and most
lethal attacks on the public in recent decades. With this bill,
we are finally saying we will not tolerate these dangerous
weapons.").
- 10 -
C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773
(1993)).
"Relevantly similar" in what sense? The Supreme Court
provides the answer. We must train our attention on two
comparisons: "how and why the regulations burden a law-abiding
citizen's right to armed self-defense." Id. at 29 (emphasis
added). First, we consider the "how," comparing the "burden on
the right of armed self-defense" imposed by the new regulation to
the burden imposed by historical regulations. Id. at 29. Second,
we turn to the "why," comparing the justification for the modern
regulation to the justification for historical regulations. Id.
B.
1.
To gauge how HB 6614 might burden the right of armed
self-defense, we consider the extent to which LCMs are actually
used by civilians in self-defense. The answer supplied by the
record in this case is that civilian self-defense rarely -- if
ever -- calls for the rapid and uninterrupted discharge of many
shots, much less more than ten. Plaintiffs claim that 39 million
Americans have (at some time) owned at least one magazine holding
more than ten rounds. But while any self-defense fusillade of
more than ten rounds would surely beget publicity, plaintiffs'
expert can point only to a single 2015 news article reporting that
a victim of an attempted robbery in Texas emptied a 12-round clip
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when shooting two assailants two and seven times, respectively.7
More recently, Edward Troiano, the Chief of the Rhode
Island Bureau of Criminal Identification and Investigation,
conducted a review of self-defense incidents in Rhode Island in
which semiautomatic firearms were discharged, and unearthed no
incidents "in which a civilian has ever fired as many as 10 rounds
in self-defense." Troiano's finding is consistent with our prior
observation in Worman v. Healey that the record in that case
revealed not "a single example of a self-defense episode in which
ten shots or more were fired." 922 F.3d 26, 37 (1st Cir. 2019).
It also aligns with determinations of our sister circuits that
"most homeowners only use two to three rounds of ammunition in
self-defense," Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Att'y
Gen. N.J., 910 F.3d 106, 121 n.25 (3d Cir. 2018), and that the use
of more than ten bullets in self-defense is "rare." Kolbe v.
Hogan, 849 F.3d 114, 127 (4th Cir. 2017).8
7 G. Halek, Houston Concealed Carriers Unload on Armed
Muggers -- Why We Travel in Packs, Concealed Nation (Dec. 21,
2015), https://perma.cc/X33S-89KZ.
8 Each of these three cases was abrogated by Bruen, but Bruen
did not call into question courts' observations about the actual
use of LCMs. We have also considered the fact that a weapon can
be "used" in self-defense by way of threat, even if it is not
actually fired. But plaintiffs claim no plausible scenario in
which a threat has proved less effective because the brandished
weapon could only fire ten rounds at once without reloading.
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Given the lack of evidence that LCMs are used in self-
defense, it reasonably follows that banning them imposes no
meaningful burden on the ability of Rhode Island's residents to
defend themselves. True, one could imagine Hollywood-inspired
scenarios in which a homeowner would need to fend off a platoon of
well-armed assailants without having to swap out magazines. But
we read Bruen as requiring us to ascertain how a regulation
actually burdens the right of armed self-defense, not how it might
be imagined to impose such a burden. And even if we were to
consider imagined burdens in our analysis, we would certainly
accord them little weight. Otherwise, the assessment of how a
regulation burdens the right of armed self-defense would always
find a substantial burden.
2.
Having considered how HB 6614 burdens -- or more
accurately, does not burden -- the right of armed self-defense, we
next consider for comparison purposes the burdens imposed by the
regulation of other arms throughout our history, as Bruen requires.
That historical regulation includes bans on sawed-off shotguns,
which the Supreme Court has deemed unprotected by the Second
Amendment, see United States v. Miller, 307 U.S. 174, 177 (1939),
restrictions on machine guns, most of which have been effectively
banned nationally since 1986, see 18 U.S.C. § 922(o), and even the
severe restrictions placed on Bowie knives by forty-nine states
- 13 -
and the District of Columbia in the nineteenth century once their
popularity in the hands of murderers became apparent.9
In each instance, it seems reasonably clear that our
historical tradition of regulating arms used for self-defense has
tolerated burdens on the right that are certainly no less than the
(at most) negligible burden of having to use more than one magazine
to fire more than ten shots.
C.
Having determined that HB 6614 likely imposes very
little -- if any -- burden on the right of armed self-defense as
compared to the burdens imposed on that right by its historical
predecessors, we now turn to considering "why" Rhode Island enacted
HB 6614. At this step, Bruen directs us to consider the extent to
which the justification for Rhode Island's LCM ban is analogous to
justifications for the laws that form "this Nation's historical
tradition of firearm regulation." 597 U.S. at 17.
1.
Rhode Island justifies HB 6614 as a reasoned response by
its elected representatives to a societal concern: that the
combination of modern semiautomatic firearms and LCMs have
9 See, e.g., 1893 R.I. Pub. Laws 231; 1837 Ala. Laws 7,
No. 11 § 2; 1837 Ga. Laws 90, § 1; 1837-1838 Tenn. Pub. Acts 200-
01, §§ 1-2; 1838 Fla. Laws 36, No. 24, § 1; 1838 Va. Acts 76,
ch. 101; 1839 Ala. Acts 67, ch. 77; 1881 Ark. Acts 191-92, No. 96
§ 1; 1882 W. Va. Acts 421-22, ch. 135 § 7; Ariz. Rev. Stat. Ann.
§ 385 (1901).
- 14 -
produced a growing and real threat to the State's citizens,
including its children. Mass shootings have of late "become a
weekly -- and sometimes daily -- event." Ocean State, 646 F. Supp
3d at 393. And in those shootings, semiautomatic firearms equipped
with LCMs "have been the weapons of choice." Worman, 922 F.3d at
39.
The record indicates that such weapons have indeed been
deployed in many of the "deadliest mass shootings in recent
history." Id. It also provides insight as to why: Semiautomatic
firearms fitted with LCMs are highly effective weapons of mass
slaughter. They are designed to "shoot multiple human targets
very rapidly," and to "allow the shooter to spray-fire from the
hip position." Ocean State, 646 F.Supp.3d at 394 (quoting
Heller v. District of Columbia, 670 F.3d 1244, 1262-63 (D.C. Cir.
2011)). Citing the testimony of emergency physician Dr. Megan
Ranney, the district court detailed how this ability to "spray a
crowd with bullets results in more injuries per person." Id. at
395. The ensuing "cases with multiple bullet wounds are more
complex, have a higher likelihood of injury that requires surgical
intervention, and have a higher likelihood of death in the
emergency department." Id.
Plaintiffs offer testimony that a practiced shooter can
switch out a spent magazine for a full one in a mere 2-3 seconds.
They claim that "[s]uch a miniscule difference in practical fire
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rate would be unlikely to have any appreciable effect on
lethality." Were this so, it would reinforce the conclusion that
the ban likely imposes no meaningful burden on the right of armed
self-defense. And even if it is so, experts for the State
testified that even momentary pauses for a magazine change have
historically provided opportunities for "citizens or law
enforcement [to] intervene."10 They likewise cite instances in
which mass-shooting survivors were able to run for cover "in the
few pauses where the shooter reloaded."11 Surveying the evidence,
the district court "[found] as fact that in those two or three
seconds a child -- or two children, or even three -- may escape
the fire of a mad person." Id. at 394.
Statistical evidence supports these anecdotal findings,
confirming that magazine capacity directly corresponds to
lethality. The State submitted expert testimony that, without
extended magazines -- defined as magazines holding more than
Consider the 2011 shooting in Tucson, Arizona that wounded
10
U.S. Representative Gabby Giffords and killed six people including
Chief Judge John Roll of the U.S. District Court for the District
of Arizona. There, the shooter "was able to fire 31 rounds with
a Glock 19 semiautomatic handgun in a matter of seconds before
bystanders could disarm him as he changed magazines. Every one of
those rounds hit an individual."
For example, in Newtown, Connecticut, "nine children were
11
able to escape while the gunman paused to change out a thirty-
round magazine." Similarly, survivors of the 2017 Las Vegas mass
shooting were able to run out of harm's way while the shooter
reloaded.
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10 rounds -- "semiautomatic rifles cause an average of 40 percent
more deaths and injuries in mass shootings than regular firearms."
But "with extended magazines, semiautomatic rifles cause an
average of 299 percent more deaths and injuries than regular
firearms."
2.
Having assessed Rhode Island's justification for its LCM
ban, we must now compare it to the justifications for HB 6614's
historical analogues. First, consider the rationale for excluding
sawed-off shotguns12 from Second Amendment protection. Congress
began regulating sawed-off shotguns in 1934, after they became
popular with the "mass shooters of their day" -- notorious
Prohibition-era gangsters like Bonnie Parker and Clyde Barrow.13
There is no doubt that these regulations are constitutional:
Plaintiffs concede that sawed-off shotguns "are permissibly
12A sawed-off shotgun is a shotgun with a barrel length of
less than 18 inches (shorter than that of a regular shotgun),
regardless of whether it has been shortened with a saw. See Sawed-
Off Shotgun, Merriam-Webster.com Dictionary,
https://perma.cc/UA7J-BFH8; Is a Shotgun a Firearm Subject to the
NFA?, Bureau of Alcohol, Tobacco, Firearms and Explosives
(Jan. 30, 2020), https://perma.cc/J7V7-7MYZ. The shorter barrel
makes them easier to conceal but considerably less precise in aim.
See United States v. Amos, 501 F.3d 524, 531 (6th Cir. 2007)
(McKeague, J., dissenting).
13See National Firearms Act of 1934, ch. 757, 48 Stat. 1236(codified as amended at 26 U.S.C. §§ 5801-72); Ronald G. Shafer,
They Were Killers with Submachine Guns. Then the President Went
After Their Weapons, Wash. Post (Aug. 9, 2019),
https://perma.cc/PW9V-LF6R.
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prohibited arms due to their dangerous and unusual nature," and
the Supreme Court has affirmed that Second Amendment protection
does not extend to such "dangerous and unusual" weapons. Heller,
554 U.S. at 627.
Sawed-off shotguns may well be less effective at
accomplishing mass murder -- and more conducive to self-
defense -- than are semiautomatic rifles fitted with LCMs. As the
State explains, standard "shotguns . . . are not semiautomatic
because they require manual intervention before they are ready to
fire again." And as Congress noted while comparing the lethality
of shotguns and semiautomatic weapons, shotguns "typically have
much smaller magazine capabilities -- from 3-5" and those magazines
cannot be replaced as quickly. H.R. Rep. No. 103-489, at 19
(1994). Thus, while a sawed-off shotgun might be easier to wield
in a self-defense situation due to its shorter barrel, shotguns
cannot unleash the torrents of "spray-fire" into a crowd that makes
the combination of semiautomatic weapons and LCMs so deadly. See
Ocean State, 646 F. Supp. at 394-95 (recounting the testimony of
emergency-medicine expert Dr. Megan Ranney).
For an even older example, consider the justification
for curtailing access to the Bowie knife, a distinctive weapon
with a "longer blade[] designed expressly for fighting, rather
than hunting or utility." Its features made it "well-suited to
cutting or stabbing" and other violent crime in the nineteenth
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century. At that time, Bowie knives were considered more dangerous
than firearms; the Texas Supreme Court explained that, "[t]he gun
or pistol may miss its aim, and when discharged, its dangerous
character is lost, or diminished at least . . . . The bowie-knife
differs from these in its device and design; it is the instrument
of almost certain death." Cockrum v. State, 24 Tex. 394, 402
(1859).
The record demonstrates that, when the country
experienced a "nationwide surge of homicides" in the nineteenth
century, states reacted by "passing laws severely restricting
access to certain dangerous weapons," including Bowie knives.
These restrictions were nearly ubiquitous: From the beginning of
the 1830s through the early twentieth century, the District of
Columbia and every state except New Hampshire passed laws
restricting Bowie knives.14 As they had with sawed-off shotguns,
legislators responded to a growing societal concern about violent
crime by severely restricting the weapons favored by its
perpetrators, even though those same weapons could conceivably be
used for self-defense.
Consider, too, an additional category of weapons that
the Supreme Court has deemed outside the ambit of the Second
14 Robert J. Spitzer, Understanding Gun Law History After
Bruen: Moving Forward by Looking Back, 51 Fordham Urb. L.J. 57,
93-94 (2023).
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Amendment: "weapons that are most useful in military service."
Heller, 554 U.S. at 627. These weapons, which include "M-16 rifles
and the like . . . may be banned." Id.; see also 18 U.S.C.
§ 922(o). Although the Court did not explicitly detail why such
weapons are excepted from Second Amendment protection, one can
infer the answer: They are more dangerous, and no more useful for
self-defense, than a normal handgun or rifle.
By contrast, the Supreme Court opined that handguns
cannot be banned in part because they are "the quintessential self-
defense weapon." Heller, 554 U.S. at 629. In so doing, the Court
detailed several reasons why handguns are more conducive to self-
defense than long guns, which include M-16s and many of the weapons
that accept LCMs. Handguns, they reasoned, are "easier to store
in a location that is readily accessible in an emergency," "easier
to use for those without the upper-body strength to lift and aim
a long gun," and "can be pointed at a burglar with one hand while
the other hand dials the police." Id.There is no question that semiautomatic weapons fitted
with LCMs much more closely resemble the proscribable "M-16 rifles
and the like" than they do traditional handguns. Id. at 627. As
the Seventh Circuit recently observed, the AR-15 (a semiautomatic
weapon frequently used in combination with LCMs) "is almost the
same gun as the M[-]16 machinegun." Bevis v. City of Naperville,
85 F.4th 1175, 1195 (7th Cir. 2023). Indeed, the two weapons
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"share the same core design, and both rely on the same patented
operating system." Id. at 1195-96.
Additionally, LCMs minimize one of the few meaningful
differences that do exist between M-16s and semiautomatic weapons:
rate of fire. M-16s have a higher fire capacity than AR-15s, but
LCMs can greatly reduce the need to reload, allowing shooters to
fire many rounds in a shorter amount of time. Id. at 1197. Thus,
LCMs enable semiautomatic weapons to function even more like their
proscribable automatic counterparts: Both M-16s and semiautomatic
firearms equipped with LCMs can rapidly hit very many human
targets. And while empirically this is not a useful feature for
self-defense, it is presumably conducive to combat in war zones.15
Finally, there exists one founding-era tradition that
provides an especially apt analogy to Rhode Island's LCM ban, as
it involves both an analogous societal concern and an analogous
response to that concern. Recall that the Rhode Island General
Assembly passed HB 6614 to address growing societal concern about
mass killings by lone individuals. To mitigate that risk, the
legislature required its citizens to break down the size of the
containers (magazines) used to store and feed ammunition.
Founding-era society faced no risk that one person with
a gun could, in minutes, murder several dozen individuals. But
15 We do not consider in this opinion whether a state may ban
semiautomatic weapons themselves.
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founding-era communities did face risks posed by the aggregation
of large quantities of gunpowder, which could kill many people at
once if ignited. In response to this concern, some governments at
the time limited the quantity of gunpowder that a person could
possess, and/or limited the amount that could be stored in a single
container. See, e.g., 1784 N.Y. Laws 627 (preventing "Danger
Arising from the Pernicious Practice of Lodging Gun Powder" by
limiting individuals to 28 pounds of gunpowder apiece, which they
were required to separate into four different cannisters).16
It requires no fancy to conclude that those same
founding-era communities may well have responded to today's
unprecedented concern about LCM use just as the Rhode Island
General Assembly did: by limiting the number of bullets that could
be held in a single magazine. Indeed, HB 6614 is more modest than
founding-era limits on the size of gun-powder containers in that
it imposes no limits on the total amount of ammunition that gun
owners may possess.
As the forgoing examples illustrate, our nation's
historical tradition recognizes the need to protect against the
greater dangers posed by some weapons (as compared to, for example,
16 For additional, similar gunpowder storage laws from the
founding era, see 1798-1813 R.I. Pub. Laws 85; Act of Dec. 6, 1783,
chap. 1059, 11 Pa. Stat. 209; 1786 N.H. Laws 383-84; 1806 Ky. Acts
122 § 3.
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handguns) as a sufficient justification for firearm regulation.17
This exact justification stands behind HB 6614.
D.
In sum, the burden on self-defense imposed by HB 6614 is
no greater than the burdens of longstanding, permissible arms
regulations, and its justification compares favorably with the
justification for prior bans on other arms found to pose growing
threats to public safety. Applying Bruen's metrics, our analogical
reasoning very likely places LCMs well within the realm of devices
that have historically been prohibited once their danger became
manifest.
E.
Plaintiffs nevertheless offer three main critiques of
this reasoning. We address these critiques in turn.
1.
First, plaintiffs argue that whether people actually use
LCMs in self-defense is irrelevant to the extent of HB 6614's
burden on Rhode Islanders. Since "most people fortunately never
have to fire their firearms for self-defense," the argument goes,
what matters is whether citizens possess LCMs "for the
purpose . . . of being armed and ready for offensive or defensive
For a collection of historical state restrictions on
17
dangerous weapons, see Repository of Historical Gun Laws, Duke
Ctr. for Firearms Law, https://perma.cc/562R-7FJX.
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action in a case of conflict with another person." Bruen, 597
U.S. at 32. Bruen, though, directs us in no uncertain terms to
assess the burden imposed by modern gun regulations "on the right
of armed self-defense." Id. at 29. Depriving citizens of a device
that is virtually never used in self-defense imposes less of a
burden on that right than does banning a weapon that is, in fact,
traditionally used in self-defense.
2.
Second, plaintiffs try to distinguish HB 6614 from our
tradition of permissible arms regulations by pointing out that
LCMs are owned by millions of Americans and are thus not "unusual."
Recall that the Supreme Court has held that some weapons (such as
sawed-off shotguns) can be banned because the Second Amendment
does not authorize "the carrying of dangerous and unusual weapons."
Heller, 554 U.S. at 627 (internal quotations omitted). Plaintiffs
distort this characterization to insist that LCMs can only be
banned if they are "highly unusual in society at large." Id. at
625.
It defies reason to say that legislatures can only ban
a weapon if they ban it at (or around) the time of its introduction,
before its danger becomes manifest. The Supreme Court has made
clear that the Second Amendment is no "regulatory straightjacket."
Bruen, 597 U.S. at 30. Law advances more slowly than the
technology it regulates, but must nonetheless be able to respond
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when the ramifications of a technological development become more
apparent over time. See, e.g., Kyllo v. United States, 533 U.S.
27, 35 (2001) (decrying a "mechanical interpretation" of the Fourth
Amendment that would leave today's citizens "at the mercy of
advancing technology"); see also National Firearms Act of 1934,
ch. 757, Pub. L. No. 73-474, 48 Stat. 1236 (federally regulating
machine guns for the first time, even though they had existed in
similar form for fifty years).18
Plaintiffs' proposed popularity test contravenes case
law in addition to logic. While the Supreme Court has indeed
identified a "historical tradition of prohibiting the carrying of
dangerous and unusual weapons," it has not held that states may
permissibly regulate only unusual weapons. Bruen, 597 U.S. at 21
(internal quotations omitted). Nor has it intimated that a
weapon's prevalence in society (as opposed to, say, the degree of
harm it causes) is the sole measure of whether it is "unusual."
While the Supreme Court has noted the common selection
of handguns for self-defense in the home, it has not suggested
that the constitutionality of arms regulations is to be determined
based on the ownership rate of the weapons at issue, regardless of
18 The Machine Gun: Its History, Development and Use: A
Resource Guide, Library of Cong. (Sept. 2, 2022),
https://perma.cc/5EZH-DS8Q.
- 25 -
its usefulness for self-defense.19 See Heller, 554 U.S. at 628-
29. Miller's determination that sawed-off shotguns fall outside
the realm of Second Amendment protection, for example, contains no
hint that the court somehow assumed that few people owned such
weapons before they were banned. See generally 307 U.S. 174.
The closest arguable support for plaintiffs' preferred
rule -- that a weapon cannot be banned once a large number of
people own it even if that number is a small fraction of the
general population -- comes from a concurring opinion in Caetano v.
Massachusetts, 577 U.S. 411 (2016). Writing for himself and
Justice Thomas, Justice Alito pointed out that the stun guns at
issue had already been purchased by "[h]undreds of thousands
of . . . private citizens" making them "widely owned and accepted
as a legitimate means of self-defense across the country." Id. at
420 (Alito, J., concurring in the judgment) (internal quotations
omitted). For that reason, according to Justice Alito,
"Massachusetts' categorical ban of such weapons . . . violate[d]
the Second Amendment." Id.Here, plaintiffs argue in part that LCMs likewise cannot
be banned because the number of LCMs owned by Americans today
"dwarfs the number [of weapons at issue] in Caetano." This
19Even if widespread ownership was a valid source of
constitutional validity, plaintiffs only assert that about ten
percent of Americans have owned LCMs.
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argument treats the concurring opinion as if it were binding
authority. It also elides a critical difference between stun guns
and LCMs that bears heavily on the justification for any ban: Stun
guns were specifically designed as non-lethal weapons, making them
far less dangerous than semiautomatic firearms.20 Despite
plaintiffs' fixation on the ownership rates of LCMs, such
statistics are ancillary to the inquiry the Supreme Court has
directed us to undertake.
3.
Plaintiffs' final critique would, if correct, render
meaningless that same Court-directed inquiry: They contend that
any "laws first enacted long after ratification" -- including those
passed in the late nineteenth century -- "come too late to provide
insight" into the meaning of the Second Amendment. Bruen, 597
U.S. at 37.
The Supreme Court has indeed indicated that "founding-
era historical precedent" is of primary importance for identifying
a tradition of comparable regulation. Id. at 27. But it has also
relied upon "how the Second Amendment was interpreted from
immediately after its ratification through the end of the 19th
century." Heller, 554 U.S. at 605. The Court has likewise left
20See Eugene Volokh, Nonlethal Self–Defense, (Almost
Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms
and Defend Life, 62 Stan. L. Rev. 199, 204 (2009).
- 27 -
open the possibility that "late-19th-century evidence" and
"20th-century historical evidence" may have probative value if it
does not "contradict[] earlier evidence." Bruen, 597 U.S. at 66
n.28.
We are therefore unpersuaded by plaintiffs' assertion
that the laws regulating sawed-off shotguns, Bowie knives, and
M-16s provide no insight into our "Nation's historical tradition
of firearm regulation." Id. at 17. After all, if plaintiffs were
correct on this point, then it would follow that those laws must
themselves violate the Second Amendment. And because not even
plaintiffs claim that those laws are invalid, we see no reason why
those same laws cannot provide insight as apt historical precursors
with which to compare HB 6614's burden and justification, as Bruen
directs us to do. Id. at 29.
* * *
Rhode Island was confronted with a societal concern
regarding the frequency with which LCMs are facilitating mass
murder. The concern is unprecedented and growing, and could not
have been confronted -- let alone resolved -- by our founders. In
response, the state passed a law that places no meaningful burden
on the right of self-defense as actually practiced. The
justification for the law is a public safety concern comparable to
the concerns justifying the historical regulation of gunpowder
storage and of weapons like sawed-off shotguns, Bowie knives, M-16s
- 28 -
and the like. The analogical "how" and "why" inquiry that Bruen
calls for therefore strongly points in the direction of finding
that Rhode Island's LCM ban does not violate the Second Amendment.
Common sense points in the same direction. It is fair
to assume that our founders were, by and large, rational. To
conclude that the Second Amendment allows banning sawed-off
shotguns, Bowie knives, and M-16s -- but not LCMs used repeatedly
to facilitate the murder of dozens of men, women, and children in
minutes -- would belie that assumption. Accordingly, it should
not be surprising that Bruen's guidance in this case leads us to
conclude that HB 6614 is likely both consistent with our relevant
tradition of gun regulation and permissible under the Second
Amendment.
IV.
Plaintiffs also fail to show a likelihood of prevailing
on their Fifth Amendment takings claim. The Fifth Amendment
provides that "private property" shall not "be taken for public
use, without just compensation." U.S. Const. amend. V. "The
paradigmatic taking requiring just compensation is a direct
government appropriation or physical invasion of private
property." Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537
(2005). In addition to these "physical" takings, the Court has
recognized "regulatory takings" when a regulation "denies all
economically beneficial or productive use" of the property.
- 29 -
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015–16 (1992).
Nonetheless, it has established that a property owner can expect
"the uses of his property to be restricted, from time to time, by
various measures newly enacted by the State in legitimate exercise
of its police powers." Id. at 1027.
HB 6614 required all owners of LCMs to choose one of
four options within 180 days of the law's passage: They could
(a) permanently modify their LCMs to accept ten rounds or fewer of
ammunition; (b) sell them to a federally licensed firearms dealer
or out-of-state resident; (c) transfer them out-of-state; or
(d) turn them in to law enforcement. R.I. Gen. Laws § 11-47.1-3.
The statute does not provide for payment in the event of
forfeiture, and offers no exceptions for any magazines that cannot
be converted to lower capacity.
Plaintiffs argue that, by dispossessing owners of their
LCMs (whether through transfer, forfeiture, sale, or alteration),
HB 6614 effects a physical taking. Consequently, to plaintiffs,
the State has an obligation to pay just compensation, no matter
the justification for the law. Plaintiffs point to Horne v.
Department of Agriculture, 576 U.S. 350 (2015), in which the Court
held that a requirement that raisin growers grant the government
possession and title to a certain percentage of raisins constituted
a physical taking, and Loretto v. Teleprompter Manhattan CATV
Corp., where the Court held that a mandated physical invasion of
- 30 -
a landlord's real property for the permanent installation of cable-
television devices constituted a physical taking. 458 U.S. 419,
436-37 (1982). Plaintiffs argue that HB 6614 effects a similar
taking. We disagree. Both Horne and Loretto involved the
government necessarily occupying, taking title to, or physically
possessing the relevant item. Here, by contrast, LCM owners have
the option to sell, transfer, or modify their magazines. HB 6614
does not effect a physical taking just because Rhode Island offered
to assist LCM owners with the safe disposal of their soon-to-be-
proscribed weapons.
Plaintiffs do not argue that HB 6614 deprives LCM owners
of all "economically beneficial or productive use" of their
magazines, as would be required to show a regulatory taking. See
Lucas, 505 U.S. at 1015–16. Nor could they. The only thing they
may not do is continue to possess them without modification in the
state of Rhode Island. We find this regulation to be the very
type of use restriction that property owners must "necessarily
expect[] . . . from time to time" as states legitimately exercise
their police powers. Id. at 1027.
In short, HB 6614 likely effects neither a physical
taking nor a regulatory taking. As such, we affirm the district
court's holding that plaintiffs have failed to show a likelihood
of success on their Fifth Amendment claims.
- 31 -
V.
Finally, we are unpersuaded by plaintiffs' claim that
HB 6614 violates the Fourteenth Amendment. Plaintiffs contend
that Rhode Island's law violates due process for two reasons: first
because it has "retroactive effects" and second because it is
impermissibly vague. We briefly discuss each claim in turn.
A.
First, plaintiffs argue that HB 6614 violates their due
process rights because it is "obviously retroactive." A statute
is considered retroactive if it "attaches new legal consequences
to events completed before its enactment." Landgraf v. USI Film
Prod., 511 U.S. 244, 269-70 (1994).
Here, plaintiffs contend that the law does so by
"reach[ing] back to long-closed, lawful transactions and
render[ing] their result illegal." But HB 6614 does not impose
new liability back to the date of purchase -- the "lawful
transactions" to which plaintiffs are presumably referring. And
even if possession -- rather than purchase -- of an LCM were the
operative "event" for our retroactivity analysis, the "legal
consequence" contained in the law did not "attach" until six months
after its passage. We therefore do not see how HB 6614 could
possibly be considered retroactive.
- 32 -
B.
Plaintiffs further argue that, since the law does not
define "[p]ermanent[] modifi[cation]" or "ammunition," see R.I.
Gen. Laws § 11-47.1-2, "people of ordinary intelligence" may not
"understand whether their actions will result in adverse
consequences" under the law.
We trust that Rhode Island gun owners are much more
intelligent than plaintiffs posit and are familiar with what
ammunition is, for example. Nor is the concept of modifying a
magazine a puzzler. A simple Google search of "modify magazines
ten rounds" yields reams of products and instructional videos
designed to help users "make [their] magazines state compliant" by
limiting their capacity to fit ten or fewer rounds.21 While Google
is hardly a legal test, these results indicate that a large number
of people have figured out what conduct the statute (and others
like it) prohibits, and what modifications are necessary to comply.
Plaintiffs' facial vagueness argument borders on the frivolous.
21 See, e.g., Level Up Tactical, How to Make Your Magazines
State Compliant for Under $7 Each, YouTube (Jun. 7, 2019),
https://perma.cc/N9CR-PSSE. The video specifically provides
instructions on how to "permanently" modify an LCM by epoxying to
it a ten-round limiter. We find that a person of ordinary
intelligence would understand epoxying something to be within the
ordinary meaning of modifying it permanently.
- 33 -
VI.
We need go no further. Plaintiffs' failure to
demonstrate a likelihood of success on the merits of their claims
sinks their attempt to require the district court to issue a
preliminary injunction. New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). We therefore
affirm the judgment of the district court, denying the request for
a preliminary injunction.
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