Plaintiffs' Motion For A Preliminary Injunction - Yzaguirre v. District of Columbia

Case 1:24-cv-01828-APM Document 12-1 Filed 07/07/24 Page 1 of 52
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
TYLER YZAGUIRRE, et al. )

)
Plaintiffs, )
)
v. ) Case No. 2024-cv-01828-APM
)
DISTRICT OF COLUMBIA, et al. )
)
Defendants. )
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF THE PLAINTIFFS’ APPLICATION FOR A PRELIMINARY INJUNCTION
i
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i

TABLE OF AUTHORITIES ........................................................................................................... ii
INTRODUCTION AND SUMMARY OF THE ARGUMENT ..................................................... 1
STATUTORY BACKGROUND AND STATEMENT OF FACTS ................................................ 4
ARGUMENT .................................................................................................................................. 7
I. THE PLAINTIFFS HAVE STANDING. ........................................................................................ 7
II. THE PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION. ...................................... 8
A. The Plaintiffs are likely to succeed on the merits. ........................................................... 9
1. The “assault weapons” Ban is unconstitutional because it bans commonly
possessed arms. ....................................................................................................... 9
2. The choice of the American People governs......................................................... 15
3. These arms are not unusually dangerous. ............................................................. 18
4. The banned arms are not weapons of war—a descriptor that is irrelevant to this
Court’s constitutional inquiry in any event. .......................................................... 26
5. The District cannot show a historical basis to support its Ban. ............................ 34
B. The Plaintiffs suffer irreparable harm from the District’s Ban. ..................................... 38
C. The balance of equities tips overwhelmingly in the Plaintiffs’ favor. ............................ 39
D. An injunction is in the public interest. ........................................................................... 40
III. THE COURT SHOULD WAIVE THE BOND REQUIREMENT OR SET A NOMINAL BOND BECAUSE
THE DISTRICT WILL SUFFER NO HARM FROM A PRELIMINARY INJUNCTION. ......................... 40
IV. THE COURT SHOULD ENTER FINAL JUDGMENT FOR THE PLAINTIFFS. .................................. 42
CONCLUSION. ............................................................................................................................ 43
CERTIFICATE OF SERVICE ...................................................................................................... 45
i
TABLE OF AUTHORITIES
CASES
Aamer v. Obama,
742 F.3d 1023 (D.C. Cir. 2014) .......................................................................................... 8
Andrews v. State,
50 Tenn. 165 (Tenn. 1871) ............................................................................................... 30
Ark. Best Corp. v. Carolina Freight Corp.,
60 F. Supp. 2d 517 (W.D.N.C. 1999) ............................................................................... 41
Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150 (1970) ........................................................................................................... 8
Aymette v. State,
21 Tenn. 154 (1840) ......................................................................................................... 30
Berg v. Glen Cove City Sch. Dist.,
853 F. Supp. 651 (E.D.N.Y. 1994) ................................................................................... 38
Bevis v. City of Naperville,
85 F.4th 1175 (7th Cir. 2023) ................................................................................. 7, 26, 27
Caetano v. Massachusetts,
577 U.S. 411 (2016) ................................................................................... 8, 10, 21, 22, 30
Carey v. Population Servs. Int’l,
431 U.S. 678 (1977) ........................................................................................................... 8
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) .......................................................................................... 38
Commonwealth v. Caetano,
470 Mass. 774 (2015) ...................................................................................................... 22
Craig v. Boren,
429 U.S. 190 (1976) ........................................................................................................... 8
Crawford v. Washington,
541 U.S. 36 (2004) ........................................................................................................... 36
Curtis 1000 v. Suess,
24 F.3d 941 (7th Cir. 1994) .............................................................................................. 42
Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec.,
No. 1:22-CV-00951-RGA, 2023 WL 6180472 (S.D. Cal. Sept. 22, 2023) ..................... 14
District of Columbia v. Heller,
554 U.S. 570 (2008) ................... 1, 2, 3, 8, 9, 10, 11, 14, 15, 20, 21, 26, 27, 28, 29, 34, 40
Duncan v. Becerra,
970 F.3d 1133 (9th Cir. 2020) .......................................................................................... 35
Duncan v. Bonta,
No.: 17-cv-1017-BEN, 2023 WL 6180472 (S.D. Cal. Sept. 22, 2023) ........................... 27
ii
Elrod v. Burns,
427 U.S. 347 (1976) ......................................................................................................... 39
English v. State,
35 Tex. 473 (1872) ........................................................................................................... 31
English v. State,
42 Tex. 455 (1875) ........................................................................................................... 31
Ezell v. City of Chi.,
651 F.3d 684 (7th Cir. 2011) ............................................................................................ 39
Friedman v. City of Highland Park,
577 U.S. 1039 (2015) ....................................................................................................... 14
Garland v. Cargill,
219 L. Ed. 2d 151 (2024) .......................................................................................... 1, 3, 11
Gordon v. Holder,
721 F.3d 638 (D.C. Cir. 2013) .................................................................................... 38, 40
Heller v. District of Columbia,
670 F.3d 1244 (D.C. Cir. 2011) ................................................................ 10, 11, 14, 26, 43
Hoechst Diafoil Co. v. Nan Ya Plastics Corp.,
174 F.3d 411 (4th Cir. 1999) ............................................................................................ 40
J. Doe v. Shenandoah Cnty. Sch. Bd.,
737 F. Supp. 913 (W.D. Va. 1990) ................................................................................... 38
K.A. ex rel. Ayers v. Pocono Mt. Sch. Dist.,
710 F.3d 99 (3d Cir. 2013) ............................................................................................... 40
Kolbe v. Hogan,
813 F.3d 160 (4th Cir. 2016) ............................................................................................ 12
Kolbe v. Hogan,
849 F.3d 114 (4th Cir. 2017) .......................................................................... 12, 25, 27, 28
Ky. v. Biden,
23 F.4th 585 (6th Cir. 2022) ............................................................................................. 40
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) ........................................................................................................... 7
Malloy v. Hogan,
378 U.S. 1 (1964) ............................................................................................................. 36
McDonald v. City of Chi.,
561 U.S. 742 (2010) ............................................................................................... 1, 10, 14
Miller v. Bonta,
542 F. Supp. 3d 1009 (S.D. Cal. 2021) ...................................................................... 12, 13
Miller v. Bonta,
No.: 19-cv-01537 BEN (JLB), 2023 U.S. Dist. LEXIS 188421 (S.D. Cal. Oct. 19, 2023) 13
iii
Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012) ...................................................................................... 42, 43
Morris v. District of Columbia,
38 F. Supp. 3d 57 (D.D.C. 2014) ..................................................................................... 42
Nevada Comm’n on Ethics v. Carrigan,
564 U.S. 117 (2011) ......................................................................................................... 36
N.Y. State Rifle & Pistol Ass’n v. Bruen,
142 S. Ct. 2111 (2022) ............................................... 1, 7, 8, 10, 15, 26, 34, 35, 36, 37, 43
Palmer v. District of Columbia,
59 F. Supp. 3d 173 (D.D.C. 2014) ..................................................................................... 2
Parker v. District of Columbia,
478 F.3d 370 (D.C. Cir. 2007) ............................................................................................ 7
People v. Yanna,
297 Mich. App. 137, 824 N.W.2d 241 (2012) ................................................................. 30
Pharm. Soc. Of the State of N.Y., Inc. v. N.Y. State Dep’t of Soc Servs.,
50 F.3d 1168 (2d Cir. 1995) ............................................................................................. 41
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ..................................................................................................... 35
Rapp v. Bonta,
No. 8:17-cv-00746-JLS-JDE, 2024 WL 1142061 (C.D. Cal. Mar. 15, 2024) ................. 37
SEC v. Dowdell,
Civil No. 3:01-cv-00116, 2002 U.S. Dist. LEXIS 19980 (W.D. Va., Oct. 11, 2002) ...... 41
Shew v. Malloy,
994 F. Supp. 2d 234 (D. Conn. 2014) .............................................................................. 18
Silveira v. Lockyer,
328 F.3d 567 (9th Cir. 2003) ............................................................................................ 34
Staples v. United States,
511 U.S. 600 (1994) ......................................................................................................... 26
State v. Smith,
11 La. Ann. 633 (1856) .................................................................................................... 30
Stenberg v. Carhart,
530 U.S. 914 (2000) ........................................................................................................... 4
Temple Univ. v. White,
941 F.2d 201 (3d Cir. 1991) ............................................................................................. 41
Timbs v. Indiana,
139 S. Ct. 682 (2019) ....................................................................................................... 36
United States v. Berger,
No. 5:22-CR-00033, 2024 WL 449247 (E.D. Pa. Feb. 6, 2024) ...................................... 27
iv
United States v. Miller,

307 U.S. 174 (1939) ................................................................................................... 10, 30
Virginia v. Moore,
553 U.S. 164 (2008) ......................................................................................................... 36
Westfield High Sch. L.I.F.E. Club v. City of Westfield,
249 F. Supp. 2d 98 (D. Mass. 2003) ................................................................................ 41
Winter v. NRDC, Inc.,
555 U.S. 7 (2008) ......................................................................................................... 8, 38
Wrenn v. District of Columbia,
864 F.3d 650 (D.C. Cir. 2017) .................................................................................. 2, 4, 42
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. II ............................................................................................................. 10
STATUTES
D.C. Code § 7-2501.01 ........................................................................................................ 4, 6
D.C. Code § 7-2502.01 ............................................................................................................ 1
D.C. Code § 7-2502.02 ............................................................................................................ 6
D.C. Code § 7-2507.06 ............................................................................................................ 6
RULES
Fed. R. Civ. P. 65 .............................................................................................................. 40, 42
OTHER
“A Pennsylvanian,”
Letter to the Philadelphia Gazette, June 18, 1789, p. 2 col. 1 ......................................... 31
Brendan J MacKay, Gunshot Wounds: Ballistics, Pathology, and Treatment Recommendations,
with a Focus on Retained Bullets
14 Orthop. Res. Rev. 293 (2022) ..................................................................................... 23
David B. Kopel, Rational Basis Analysis of “Assault Weapon” Prohibition,
20 J. Contemp. L. 381 (1994) .......................................................................................... 25
C.D. Michael and Konstadinos Moros, “Our Ancestors Would Never Have Accepted”: The
Historical Case Against Assault Weapons Bans,
24 Wyom. L. Rev. 89 (2024) ............................................................................................ 33
Charles Sumner, The Kansas Question, Senator Sumner’s Speech, Reviewing the Action of the
Federal Administration Upon the Subject of Slavery in Kansas,
Cinncinnati, G.S. Blanchard, 1856 .................................................................................. 32
Gary Kleck,
Targeting Guns: Firearms and Their Control 112 (1997) ................................................. 20
Henry Campbell Black,
Handbook of American Constitutional Law (1895) ......................................................... 33
v
James Madison,
The Federalist No. 46 ...................................................................................................... 32
Jeff Johnson,
Muzzle-Energy Math: Comparing Shotgun Gauges for Home Defense (2018) .............. 25
Joel Bishop,
Commentaries on the Criminal Law 75 (1868) ......................................................... 30, 33
John Norton Pomeroy,
An Introduction to the Constitutional Law of the United States 152 (1868) ................... 33
Noah Webster,
An Examination Into the Leading Principles of the Federal Constitution
Propose by the Late Convention Held at Philadelphia (1787) ............................................... 32
Robert Leider,
Are Rifles Constitutional Protected Arms?, Standing His Ground (Apr. 16, 2024) ........ 31
Samuel Whiting, Et Al.,
Second American Edition of the New Edinburgh Encylopedia,
Volume 1 Part 2 (1813) .................................................................................................... 32
Slavery Question: Speech of Hon. Edward Wade of Ohio in the House of Representatives,
Aug. 2, 1856, at p. 7 (Buell & Blanchard Publishers, 1856) ........................................... 32
Tench Coxe,
Letter to the Philadelphia Gazette, 20 Feb. 1788 ............................................................ 31
Thomas M. Cooley,
The General Principles of Constitutional Law in the
United States of America 298 (1898) ......................................................................... 30, 33
vi
INTRODUCTION AND SUMMARY OF THE ARGUMENT
This case begins and ends with District of Columbia v. Heller, 554 U.S. 570, 573 (2008),
as clarified by New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 8 (2022). In Heller,
the Supreme Court struck the District of Columbia’s categorical ban on operable pistols because
the “ban amount[ed] to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by
American society for [a] lawful purpose.” Heller, 554 U.S. at 628. Since “prohibition[s] of an
entire class of arms” were vanishingly rare at the time of America’s Founding, the Court concluded
that such categorical bans are irreconcilable with the Second Amendment’s robust guarantee. In
fact, the Supreme Court has thrice reinforced that if an arm is “commonly used” for lawful
purposes, Bruen, 142 S. Ct. at 2156 (citing Heller, 554 U.S. at 581), then “a complete prohibition
of their use is invalid,” Heller, 554 U.S. at 629; see also McDonald v. City of Chicago, 561 U.S.
742, 749 (2010).
Because every firearm in the District of Columbia must be registered, see D.C. Code § 7-
2502.01(a), the District’s Ban on registering so-called “assault weapons” is as much a complete
prohibition as the law at issue in Heller. And because there are roughly 24 million AR-15 rifles
lawfully owned by citizens across the United States (and AR-15s are only one of scores of weapons
defined by the District as “assault weapons”), the District’s sprawling “assault weapons” definition
means that the District has banned weapons that are indisputably in common use. See Garland v.
Cargill, 219 L. Ed. 2d 151, 167 (2024) (Sotomayor, J., dissenting) (describing “semiautomatic
rifles” like the AR-15 as “commonly available”). Finally, because the Supreme Court has held that
the District has the prerogative to ban only “unusual and dangerous” weapons, and because the
law of noncontradiction holds that a thing cannot be both “commonly used” and “unusual” at the
same time, the District’s Ban violates the Second Amendment.
1
This is not the first time the District has enacted and enthusiastically enforced laws that
violate the Second Amendment. 1 For that reason, the Plaintiffs can reasonably anticipate the
District’s arguments. For instance, the District has argued in previous cases that, consistent with
the Second Amendment, weapons useful in the military may be banned. But that argument collides
with both Heller and Bruen; the former noted that some weapons that might be “highly unusual in
society at large” might nevertheless have use in the military, while the latter reiterated that
“common use” equates to constitutional protection.
In other jurisdictions, some government lawyers have insisted that commonly owned rifles,
like the AR-15, are “weapons of war” that should be “banned like machine guns.” See, e.g., Brief
of State Respondents, Harrel v. Raoul, No. 23-877 et al. at 23 (U.S. Apr. 1, 2024). To begin with,
though, the federal government has regulated—but never banned—civilians from possessing
automatic weapons. In other words, the District’s complete prohibition on semiautomatic firearms
is irrationally stricter than the federal government’s mere regulation of fully automatic firearms.
Even more to the point, the AR-15 and similar firearms are not “like” machine guns and
other military weapons in any relevant sense. The former are patently common, while the latter
have remained highly unusual in society at large even throughout the years in which their purchase
was unrestricted or subject merely to tax under the National Firearms Act. The AR-15 is a
semiautomatic rifle, which means it functions identically to any other District-permitted firearm
that fires one round per trigger press (indeed, an AR-15’s rate of fire is comparable to a Glock or
other semiautomatic handgun). Machine guns are fully automatic, a feature which makes them
1Heller, 554 U.S. at 636 (categorical ban on operable pistols in the home stricken as
unconstitutional); Wrenn v. District of Columbia, 864 F.3d 650, 668 (D.C. Cir. 2017) (“may issue”
concealed-carry permit system stricken as unconstitutional); Palmer v. District of Columbia, 59
F. Supp. 3d 173, 184 (D.D.C. 2014) (categorical ban on carrying pistols outside the home stricken
as unconstitutional).
2
qualitatively different from semiautomatic weapons and far more dangerous. Lest there be any
doubt, Justice Sotomayor (joined by Justices Kagan and Jackson) has emphasized that
“[s]emiautomatic weapons” like “AR-15-style” rifles “are not machineguns” according to federal
law. Cargill, 219 L. Ed. 2d at 169 (Sotomayor, J., dissenting) (emphasis added).
At its core, the District’s Ban divvies up permitted and unpermitted weapons based on what
features they have—not on how the firearms operate. Some features are purely cosmetic. Others
make the weapon safer; for instance, pistol grips, adjustable stocks, or flash suppressors make the
firearm more ergonomic and accurate, thus minimizing the chance that a law-abiding citizen using
a long gun for self-defense will accidentally strike an innocent person. Ensuring that law-abiding
citizens may only possess less-accurate long guns is a position “worthy of the mad hatter,” Heller,
554 U.S. at 589; i.e., it would flunk even the rational-basis test (let alone Bruen’s history-and
tradition test).
The main question here is straightforward: have the American people chosen to possess a
type of weapon for lawful purposes often enough that the weapon is considered common? If the
answer is yes, the District cannot outright prohibit it, no matter what countervailing policy it
advances or how much fearmongering it manufactures. Complete prohibitions on weapons in
common use are, under the Second Amendment, “policy choices” that the Second Amendment
takes “off the table.” Id. at 636.
For these reasons, the Plaintiffs are likely to succeed on the merits. They are also suffering
irreparable injury every day the District transgresses their Second Amendment rights. And, finally,
the balance of equities and public interest support injunctive relief because the enforcement of
unconstitutional laws is perpetually contrary to the public interest and the District would suffer no
cognizable harm from an injunction.
3
This Court should thus immediately enjoin the District’s refusal to register commonly
owned firearms and ensure that law-abiding District residents will not be precluded from
exercising their Second Amendment rights based on a law unlikely to survive in the final analysis.
And because the invalidity of the District’s Ban is plainly evident, the Court should combine the
merits determination with the preliminary-injunction ruling and issue a permanent injunction
against enforcement of the Ban. See Wrenn, 864 F.3d at 667.
STATUTORY BACKGROUND AND STATEMENT OF FACTS
After providing a list of “specified rifles,” 2 “pistols,”3 and “shotguns,”4 D.C. Code § 7-
2501.01(3A)(A)(i), defines “Assault Weapons”5 as follows:
2 “All AK series including, but not limited to, the models identified as follows: Made in China AK,
AKM, AKS, AK47, AK47S, 56, 56S, 84S, and 86S; Norinco (all models); Poly Technologies (all
models); MAADI AK47 and ARM; and Mitchell (all models). UZI and Galil; Beretta AR-70;
CETME Sporter; Colt AR-15 series; Daewoo K-1, K-2, Max 1, Max 2, AR 100, and AR110 C;
Fabrique Nationale FAL, LAR, FNC, 308 Match, and Sporter; MAS 223; HK-91, HK-93, HK-94,
and HK-PSG-1. The following MAC types: RPB Industries Inc. sM10 and sM11; and SWD
Incorporated M11; SKS with detachable magazine; SIG AMT, PE-57, SG 550, and SG 551;
Springfield Armory BM59 and SAR-48; Sterling MK-6; Steyer AUG, Steyr AUG; Valmet M62S,
M71S, and M78S; Armalite AR-180; Bushmaster Assault Rifle; Calico—900; J&R ENG—68;
and Weaver Arms Nighthawk.” D.C. Code § 7-2501.01(3A)(A)(i)(I).
3“UZI; Encom MP-9 and MP-45; The following MAC types: RPB Industries Inc. sM10 and sM11;
SWD Incorporated -11; Advance Armament Inc.—11; and Military Armament Corp. Ingram M-
11; Intratec TEC-9 and TEC-DC9; Sites Spectre; Sterling MK-7; Calico M-950; and Bushmaster
Pistol.” D.C. Code § 7-2501.01(3A)(A)(i)(II).
4“Franchi SPAS 12 and LAW 12; and Striker 12. The Streetsweeper type S/S Inc. SS/12.” D.C.
Code § 7-2501.01(3A)(A)(i)(III).
5 The term “assault weapon” “is a political term, developed by anti-gun publicists to expand the
category of ‘assault rifles’ so as to allow an attack on as many additional firearms as possible on
the basis of undefined ‘evil’ appearance.” Stenberg v. Carhart, 530 U.S. 914, 1001 n.16 (2000)
(Thomas, J., dissenting). “Many attribute its popularization to a 1988 paper written by gun-control
activist and Violence Policy Center (“VPC”) founder Josh Sugarmann,” Aaron Blake, Is it fair to
call them ‘assault weapons’?, WASH. POST (Jan. 17, 2013), https://wapo.st/3JixwPq, who admitted
to using the phrase to exploit “the public’s confusion over fully automatic machine guns versus
semiautomatic[s],” Josh Sugarman, Assault Weapons and Accessories in America, available at
http://goo.gl/i9r8Nn.
4
(IV) A semiautomatic, rifle that has the capacity to accept a detachable magazine
and any one of the following:
(aa) A pistol grip that protrudes conspicuously beneath the action of the
weapon;
(bb) A thumbhole stock;
(cc) A folding or telescoping stock;
(dd) A grenade launcher or flare launcher;
(ee) A flash suppressor; or
(ff) A forward pistol grip;
(V) A semiautomatic pistol that has the capacity to accept a detachable

magazine and any one of the following:
(aa) A threaded barrel, capable of accepting a flash suppressor, forward

handgrip, or silencer;
(bb) A second handgrip;
(cc) A shroud that is attached to, or partially or completely encircles, the

barrel that allows the bearer to fire the weapon without burning his
or her hand, except a slide that encloses the barrel; or
(dd) The capacity to accept a detachable magazine at some location

outside of the pistol grip;
(VI) A semiautomatic shotgun that has one or more of the following:
(aa) A folding or telescoping stock;
(bb) A pistol grip that protrudes conspicuously beneath the action of the
weapon;
(cc) A thumbhole stock; or
(dd) A vertical handgrip; and
(VII) A semiautomatic shotgun that has the ability to accept a detachable

magazine; and
5
(VIII) All other models within a series that are variations, with minor differences,
of those models listed in subparagraph (A) of this paragraph, regardless of
the manufacturer;
(ii) Any shotgun with a revolving cylinder; provided, that this sub-
subparagraph shall not apply to a weapon with an attached tubular
device designed to accept, and capable of operating only with, .22
caliber rimfire ammunition; and
Imputing even more arbitrariness and ambiguity, the statute allows the D.C. Metropolitan Police
Chief to decree that “[a]ny firearm . . . [i]s an assault weapon by rule, based on a determination
that the firearm would reasonably pose the same or similar danger to the health, safety, and security
of the residents of the District as those weapons enumerated in this paragraph.” D.C. Code § 7-
2501.01(3A)(A)(iii) (emphasis added).6 Put another way, Section 2501.01(3A)(A)(iii) allows the
Police Chief to conduct, in his sole discretion, the sort of means-end interest balancing that the
Supreme Court has twice forbade courts from performing. These copycat provisions could allow
the District to ban not only those weapons specifically enumerated in the statute, but also an
unknown number of similar weapons.
D.C. Code § 7-2502.02(a)(6) renders ineligible for registration any firearm that meets the
“assault weapons” definition. And possession of an unregistered firearm is a misdemeanor
punishable by up to a year of confinement and/or a $2,500 fine. See D.C. Code §§ 7-2507.06(a);
22-3571(a)(5). Between the named firearms and the copycat provisions, the statutory scheme bans
hundreds of different firearms.
The interplay, moreover, between the named firearms and the copycat provisions means
that the named firearms all contain one or more of the characteristics that the copycat-provisions
ban. This is evident from the fact that although the District labels all AR-15 variants as “assault
6D.C. Code § 7.2501.01(3A)(B) exempts from the “assault weapon” moniker antique firearms and
certain pistols “designed expressly for use in Olympic target shooting events.”
6
weapons,” the Metropolitan Police Department is registering AR-15s if they do not have any of
the copycat features. See Exhibit 1, Declaration of Tia Hawkins. Thus, if the Ban underwent an
interest-balancing analysis—which the Supreme Court has proscribed—the District would be
required to address and justify the Ban on each of the features it prohibits. But as the Supreme
Court has instructed, the only acceptable point of inquiry is whether this class of firearms is in
common use. That said, because some courts insist on defying the Supreme Court’s instructions
by engaging in prohibited interest balancing, see, e.g., Bevis v. City of Naperville, 85 F.4th 1175
(7th Cir. 2023), the Plaintiffs address banned features such as pistol grips, flash suppressers, and
adjustable stocks and show these are features that “facilitate armed self-defense,” and thus are
protected arms. See Bruen, 142 S. Ct. at 2132.
ARGUMENT
I. THE PLAINTIFFS HAVE STANDING.
To demonstrate standing, the Plaintiffs must allege a concrete and particularized injury that
is either actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). That injury
must be fairly traceable to the District’s action and redressable by the Court. Id. at 560-61. Because
the Plaintiffs have suffered, and will continue to suffer, an immediate and continuing injury to
their constitutional rights, they meet this standard.
Plaintiff Yzaguirre, for instance, has been denied registration of an AR-15 that he lawfully
acquired as a Delaware resident. He is thus, on pain of criminal sanction, forbidden to bring his
lawfully owned firearm into the District. See Exhibit 2, Declaration of Tyler Yzaguirre. Under
Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), he has standing.
Plaintiff G&D may not effect transfers of banned firearms to its customers, and it has
denied transfers to customers because of the Ban. See Exhibit 1, Declaration of Tia Hawkins. G&D
has standing based on the loss of business and revenue from being unable to effect transfers of the
7
banned firearms. See Ass’n of Data Processing Serv. Org. v. Camp, 397 U.S. 150 (1970).
Moreover, G&D stands in the shoes of its customers and may assert their rights. See, e.g., Carey
v. Population Servs. Int’l, 431 U.S. 678, 682-84 (1977) (permitting third-party standing for a seller
of nonmedical contraceptive devices challenging the constitutionality of state laws governing the
sale and distribution of contraceptives); Craig v. Boren, 429 U.S. 190, 193-97 (1976) (permitting
third-party standing for a vendor of alcohol challenging the constitutionality of gender-based
differentials in state liquor laws).
A decision invalidating the District’s Ban and granting the relief requested in the Plaintiffs’
Complaint will redress the injuries suffered by the Plaintiffs. Specifically, it will allow Plaintiff
Yzaguirre to register his AR-15 and bring it into the District to use for self-defense and other lawful
purposes. It will also allow Plaintiff G&D to effect transfers of banned arms to its District resident
customers. Thus, the Plaintiffs have standing to challenge the District’s Ban.
II. THE PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION.
A plaintiff seeking a preliminary injunction must show: (1) that he is likely to succeed on
the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief;
(3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest.
Winter v. National Res. Def. Fund, 555 U.S. 7 (2008); Aamer v. Obama, 742 F.3d 1023, 1038
(D.C. Cir. 2014). Each element supports granting injunctive relief in favor of the Plaintiffs.
The unconstitutionality of the District’s Ban flows directly from the Supreme Court’s
holdings in Heller, Caetano, and Bruen, which held that the Second Amendment protects arms in
“common use” today. See Heller, 554 U.S. at 624-25 & 627; Caetano v. Massachusetts, 577 U.S.
411 (2016); Bruen, 142 S. Ct. at 2134. The remaining injunctive relief factors invariably follow
from the constitutional violation. Precluding law-abiding citizens from exercising constitutional
8
rights inflicts an irreparable injury per se for which there is no adequate remedy at law, and neither
the District nor the public has a valid interest in enforcing an unconstitutional law.
A. The Plaintiffs are likely to succeed on the merits.
1. The “assault weapons” Ban is unconstitutional because it bans commonly

possessed arms.
This case ultimately raises the question whether the Second Amendment protects only the
right of the People to keep and bear handguns and shotguns. This is because many of the District’s
predictable responses would invariably shove all semiautomatic rifles outside the Second
Amendment’s protective umbrella, as well as most other rifles. That would be, of course, an absurd
result.
Since long before America’s Founding and through the present, the rifle has been and
remains the quintessential militia and hunting weapon. Americans fought the Revolutionary War
with the muskets and rifles that the British sought to confiscate. (A disarmed populace is, after all,
easier to subjugate). The arms that won our independence were the same that put food on our
Forefathers’ tables. They formed the core of what the Framers intended the Second Amendment
to protect.
The Supreme Court emphasized these points in Heller: “It is therefore entirely sensible that
the Second Amendment’s prefatory clause announces the purpose for which the right was codified:
to prevent elimination of the militia.” Heller, 554 U.S. at 599. That clause “does not suggest that
preserving the militia was the only reason Americans valued the ancient right; most undoubtedly
thought it even more important for self-defense and hunting.” Id. “[T]he threat,” however, “that
the new Federal Government would destroy the citizens’ militia by taking away their arms was the
reason that right—unlike some other English rights—was codified in a written Constitution.” Id.
In sum, the central components protected by the right to keep and bear arms were the possession
9
and use of arms (1) to preserve the militia, (2) for hunting, and (3) for self-defense. See also Heller
v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011). Rifles, particularly during the
Founding Era, were the most used and most useful arm for all three of these purposes.
These purposes, in turn, inform which arms the Second Amendment covers. In 1939, the
Supreme Court held that the “obvious purpose” of the Second Amendment was “to assure the
continuation and render possible the effectiveness of such forces the declaration and guarantee of
the Second Amendment were made,” and so, the Second Amendment must be “interpreted and
applied with that end in view.” United States v. Miller, 307 U.S. 174, 178 (1939). Heller relied
heavily on Miller in determining the types of arms protected by the Second Amendment. See
Heller, 554 U.S. at 595, 624-25, 627. Taken together, this analysis and the type of weapons used
at the Founding show that rifles, like those the District bans as “assault weapons,” are protected
by the Second Amendment.
“[T]he Second Amendment,” moreover, “protects the possession and use of weapons that
are ‘in common use [today].’” Bruen, 142 S. Ct. at 2128 (quoting Heller, 554 U.S. at 627); see
also Caetano, 577 U.S. at 411-12 (2016) (invalidating stun gun ban); McDonald, 561 U.S. 742
(2010) (incorporating Second Amendment). Indeed, “all instruments that constitute bearable arms,
even those that were not in existence at the time of the founding,” come within the ambit of the
Second Amendment. Heller, 554 U.S. at 582, 624-25 (emphasis added). If an arm is “typically
possessed by law-abiding citizens for lawful purposes” today, then the government cannot
categorically ban it. Id. That is the irreducible minimum of the fundamental “right of the people to
keep and bear Arms.” U.S. CONST. amend. II. Simply put, the District may not “prohibit[] . . . an
entire class of ‘arms’ that is overwhelmingly chosen by American society for [a] lawful purpose.”
Heller, 554 U.S. at 628.
10
Yet that is precisely what the District has done. Its sweeping prohibition might be
defensible if it had barred the use of some class of long-restricted “dangerous and unusual
weapons” that few law-abiding Americans own for lawful purposes (e.g., rocket-propelled grenade
launchers, and the like). See Heller, 554 U.S. at 627 (referring to “the historical tradition of
prohibiting the carrying of ‘dangerous and unusual weapons’”). But that is not what the District
has done. Rather, the District defines “assault weapon” broadly and bans nearly all modern
semiautomatic rifles on the market today, as well as a hefty number of popular semiautomatic
pistols and shotguns.
That makes this an easy case. When a court confronts a flat ban on the possession of a type
of arm, the only question is whether the arm or class of arms at issue is “typically possessed by
law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. If the answer is yes, then the
Ban is unconstitutional because a jurisdiction cannot prohibit ordinary law-abiding Americans
from possessing what the Constitution explicitly entitles them to “keep.”
Here, the question is answered in the affirmative because semi-automatic long guns are
“typically possessed by law-abiding citizens for lawful purposes.” Id. In Heller II, the D.C. Circuit
found it “clear enough” that “semi-automatic rifles . . . are indeed in ‘common use,’ as the plaintiffs
contend.” 670 F.3d at 1261. The record at the time showed that “approximately 1.6 million AR–
15s alone ha[d] been manufactured since 1986, and in 2007 this one popular model accounted for
5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic
market.” Id. Since then, the number of AR-15s in the United States has continued to swell. See
Cargill, 602 U.S. __ (Sotomayor, J., dissenting) (acknowledging that “semiautomatic rifles” are
“commonly available”). Indeed, the D.C. Circuit grossly understated the prevalence of AR-15-
11
platform rifles among American gun owners. AR-15-platform rifles are among the most commonly
owned products in America—even eclipsing the sales of Ford F-150 pickup trucks. 7
“Over the last three decades, 19,797,000 . . . rifle[s] built on the AR-15 platform have been
manufactured or imported into the United States.” Miller v. Bonta, 542 F. Supp. 3d 1009, 1020
(S.D. Cal. 2021), vacated and remanded, 2022 WL 3095986 (9th Cir. Aug. 1, 2022). And “the
numbers have been steadily increasing.” Id. AR-15-style rifles accounted for “one-half of all rifles
(48%) produced in 2018.” Id. at 1022. In 2020, another 2,798,000 AR-15-style rifles were
produced in or imported into the United States. See National Shooting Sports Foundation, Inc.,
Commonly Owned: NSSF Announces over 24 Million [Modern Sporting Rifles] in Circulation
(July 20, 2022), available at https://bit.ly/3CRHhQl (citing data), Exhibit 3, hereto. Altogether,
recent data shows that more than 24 million AR-15-style rifles are currently owned nationwide.
Id.; accord William English, Ph.D., 2021 National Firearms Survey: Updated Analysis Including
Types of Firearms Owned, at 2 (May 13, 2022), available at https://bit.ly/3HaqmKv. Exhibit 4,
hereto.
Nor is there any question that these rifles are “typically possessed by law-abiding citizens
for lawful purposes,” including self-defense, sport, and hunting. See Heller, 553 U.S. at 624-25.
Owners consistently report one of the most important reasons they buy modern rifles like the AR-
7
Indeed, AR-15 sales dwarf sales of the Ford F-150, the Country’s most popular automobile. See
Kolbe v. Hogan, 813 F.3d 160, 174 (4th Cir. 2016) (finding the difference between F-150 sales and
AR-15 sales telling in the commonality inquiry), rev’d, 849 F.3d 114 (4th Cir. 2017) (en banc);
Miller, 542 F. Supp. 3d at 1022-23 (same). In 2020, Ford sold 787,442 F-Series pickup trucks
(including, but not limited to, the F-150, the most popular model). Fourth-Quarter 2020 Sales at 2,
Ford (Dec. 2020), https://ford.to/3H87Y5T. That is less than a third of the number of AR-style
rifles sold that year. And as compared to the 24 million-plus AR-15-style rifles in circulation, there
are approximately 16 million F-150s on the road. Brett Foote, There Are Currently 16.1 Million
Ford F-Series Pickups on U.S. Roads, FORD AUTHORITY (Apr. 9, 2021), available at
https://bit.ly/3GLUtaB.
12
15 is for self-defense (and the other reasons are lawful purposes like hunting and sport shooting).
See Miller, 542 F. Supp. 3d at 1022; English, National Firearms Survey: Updated Analysis
Including Types of Firearms Owned, at 21 (Exhibit 4, hereto) (68.8 percent of respondents reported
owning a rifle); Id. at 33 (30.2 percent of gun owners reported owning an AR-15 type rifle). Asked
why they owned an AR-15-type rifle, owners cited defense outside the home (34.6 percent), home
defense (61.9 percent), competitive shooting sports (32.1 percent), recreational target shooting
(66.0 percent), hunting (50.5 percent), and other (5.1 percent). Id. And while handguns may be the
most used firearm in self-defense situations, examples abound of citizens using rifles, including
AR-15s and similar firearms to defend themselves. See Declaration of Amy Swearer (Exhibit 5,
hereto) (identifying more than sixty published reports of rifles employed in defensive gun uses
(“DGUs”)).
That AR-15 type rifles are commonly owned for self-defense demonstrates that they are
not only commonly possessed but also commonly used. Logic compels the conclusion that a
weapon is being “used” even when it is not being fired. See Miller v. Bonta, Case No. 3:19-cv-
01537, 2023 U.S. Dist. Lexis 188421, at *88 (S.D. Cal. 2023) (explaining that one is using their
seatbelt regardless of whether a crash occurs; one is using a reserve canopy on a parachute jump
regardless of whether the main parachute malfunctions; and one is using a cell phone if it is in their
pocket while the phone’s owner waits on a call). In a perfect world, the main parachute works, one
never crashes, and one never needs to fire their rifle to defend themselves and their home. But that
hardly means that people are not “using” their backup parachutes, seat belts, or firearms. Instead,
people “use” these products each day, so they are always ready when the sort of disaster inherent
in our imperfect world begins to materialize.
13
The Court, moreover, should not constrain its analysis by assuming that only firearms
commonly used for personal self-defense are protected (even though most AR-15 platform owners
cite self-defense as a reason they own a modern rifle). To be sure, self-defense is the “central
component” of the Second Amendment right. McDonald., 561 U.S. at 787. But “central” does not
mean “exclusive,” and courts have acknowledged that the right is not confined to personal self-
defense.8 Even the dissent in Bruen acknowledged this when it explained that “[s]ome Americans
use guns for legitimate purposes, such as sport (e.g., hunting or target shooting), certain types of
employment (e.g., as a private security guard), or self-defense.” Bruen, 597 U.S. at 89 (Breyer, J.,
dissenting). If the government could ban any firearms except those most commonly used for self-
defense, then many hunting rifles and all long-barrel shotguns could be outright prohibited,
notwithstanding the Second Amendment. That is not the law. And for all the focus on self-defense,
the qualifier that an item must be “in common use for self-defense” is found neither in the Second
Amendment’s text nor in any historical authority. Indeed, the definition of “arms” Heller relied on
contemplated offensive use as well. Heller, 554 U.S. at 581.
8 See, e.g., Heller, 554 U.S. at 624 (discussing “lawful purposes like self-defense,” thereby
implying the existence of other such lawful purposes); Heller II, 670 F.3d at 1260 (“Of course, the
[Supreme Court] also said the Second Amendment protects the right to keep and bear arms for
other ‘lawful purposes,’ such as hunting . . . .”); Friedman v. City of Highland Park, 577 U.S. 1039,
1039-40 (Thomas, J., and Scalia, J., dissenting from the denial of certiorari) (discussing other
lawful purposes such as hunting and target shooting); Duncan v. Bonta, No. 17-CV1017-BEN
(JLB), 2023 WL 6180472, at *17 (S.D. Cal. Sept. 22, 2023) (“[T]he Supreme Court has enlarged
the breadth of firearms protected by the Second Amendment to include commonly owned firearms
useful for the core right of self-defense and other lawful purposes like hunting, sporting, and target
shooting.”); Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec., No. 1:22-CV-
00951-RGA, 2023 WL 2655150, at *14-15 (D. Del. Mar. 27, 2023) (“Gun owners seek such rifles
for a variety of lawful uses, including recreational target shooting, self-defense, collecting,
hunting, competition shooting, and professional use.”).
14
2. The choice of the American People governs.
Through its Ban, the District decrees that semi-automatic and similar weapons lack any
lawful purpose, such as self-defense, sport, or hunting. But the District’s perspective is irrelevant
for purposes of this case’s Second Amendment inquiry. As Bruen explained, the People are
responsible for determining which arms they choose to use themselves:
If the last decade of Second Amendment litigation has taught this Court anything,
it is that federal courts tasked with making such difficult empirical judgments
regarding firearm regulations . . . often defer to the determinations of legislatures.
But while that judicial deference to legislative interest balancing is
understandable—and, elsewhere, appropriate—it is not deference that the
Constitution demands here. The Second Amendment “is the very product of an
interest balancing by the people” and it “surely elevates above all other interests the
right of law-abiding, responsible citizens to use arms” for self-defense. Heller, 554
U.S. at 635, 128 S. Ct. 2783. It is this balance—struck by the traditions of the
American people—that demands our unqualified deference.
Bruen, 142 S. Ct. at 2131.
The Heller majority was unmoved by arguments that handguns were ill-suited for self-
defense. The District and its amici argued handguns were not suitable for home self-defense and
ironically argued that rifles and shotguns were to be preferred for self-defense. For example, the
Violence Policy Center (“VPC”) argued in Heller that “the handgun is the least effective firearm
for self-defense for all but a small group of exceptionally well-trained individuals (such as police
officers) who maintain their skills with regular and intensive practice.” Brief VPC et al. at 29 (Jan.
11, 2008).9 The VPC’s brief asserted:
Even pro-gun advocates recognize that handguns are not well-suited for self-
defense. Firearms expert Chris Bird has explained that a handgun “is the least
effective firearm for self defense” and in almost all situations “shotguns and rifles
9This could lead one to suspect that the District hasn’t ever been interested in complying with the
Second Amendment, and instead is satisfied playing legislative whack-a-mole to get away with
whatever firearm bans it can concoct.
15
are much more effective in stopping a [criminal].” That contention is supported by

a wealth of evidence.
Id. at 30 (footnote omitted). The VPC added that handguns are harder to shoot accurately compared
to rifles and shotguns. Id. at 32. It thus concluded that “[t]he District of Columbia’s decision to
deny homeowners a less effective firearm for self-defense, while permitting more effective
firearms, is a plainly reasonable and constitutional restriction.” Id.
Similarly, the District conceded the utility of rifles and shotguns for home defense, stating,
“[a]lthough handguns are banned in the District, rifles and shotguns are not. So long as
homeowners have a means of defending themselves, the handgun ban can be understood to be the
Second Amendment analog to a time, place, or manner restriction properly tailored to the District’s
unique status as an urban jurisdiction.” Brief of District of Columbia at 48. In fact, the District
acknowledged an expert opinion that rifles (and shotguns) are preferred for home defense, and the
District stated that it adopted a focused statute that continued to allow private home possession of
shotguns and rifles, which some gun rights’ proponents contend are actually the weapons of choice
for home defense. Id. at 54-55 (citing Dave Spaulding, Shotguns for Home Defense: Here’s How
to Choose and Use the Most Effective Tool for Stopping an Attack, Guns & Ammo, Sept. 2006,
at 42; Clint Smith, Home Defense, Guns Mag., July 2005, at 50 55 (preferring rifles)).10
The District’s reliance on Instructor Smith in Heller is both crucial and telling. He is the
founder and lead instructor of Thunder Ranch, a firearms-training school located in Oregon. His
Urban Rifle class, taught since 1983, “is the cornerstone of the personal defensive doctrine of this
10 Exhibit 6 hereto is a copy of the Clint Smith article the District cited in its Heller brief. In the
article, Instructor Smith recommends high speed, magazine fed rifles. Ex. 6 at 4. Instructor Smith
is pictured on page 1 of the article shouldering a Les Baer AR-15 platform rifle, and page 5 of the
article shows another Les Baer AR-15 platform rifle. No other type of rifle is featured in the home
defense article, the plain inference being that Instructor Smith favors AR-15 platform rifles for
self-defense.
16
school and has been since the school’s inception. Very simply, this is the way to defend yourself
with a rifle in what most people would consider handgun distance.” See Thunder Ranch, Urban
Rifle, https://thunderranchinc.com/wv-urban-rifle. The course is “[g]enerally, for magazine fed
rifles (AR15, AK47 etc.), but other rifle types [are] accepted.” Id.
Many other firearm schools offer home defense rifle/carbine classes specifically for the
AR-15 platform and similar rifles. They include Gun Site Academy in Arizona, Gun Site Academy,
see https://www.gunsite.com/classes/223-gunsite-carbine-class/ (“Carbines make an excellent
choice for home defense. You will learn tactics that can be employed in your home or place of
business in our live fire indoor and outdoor simulators. AR-15, SCAR-L, AK-74, AK-47, Mini-14
and similar carbines are all applicable for this class.”); the Sig Sauer Academy in New Hampshire,
see Sig Sauer Academy, https://sigsaueracademy.com/; Green Ops, https://www.green-
ops.com/defensive-carbine-class-i-8-hrs-ffx; Insights Training Center,
https://insightstraining.com/view_course.asp?courseID=9; Colonial Shooting Academy,
https://www.colonialshooting.com/education-training/civilian-courses/rifle/defensive-rifle/;
Defensive Training International, https://defense-training.com/training-courses/ (Defensive Urban
Rifle); Justified Defensive Concepts,
https://www.justifieddefensiveconcepts.com/training/defensive-carbine-clinic.
Thus, even if it mattered (and it does not), the District would be hard pressed to now argue
that modern rifles like the AR-15 are ill-suited for home defense. Or that AR-15s are uniquely
dangerous. And that would ignore all the other lawful purposes for which Americans own these
modern rifles such as hunting, target practice, predator control, and competition, all of which come
under the Second Amendment’s protection. See Exhibit 4.
17
Indeed, a fast-growing popular competitive shooting sport is known as Three Gun
Competition. See Exhibit 7. In Three Gun Competition, competitors use three different firearms—
a modern sporting rifle like the AR-15, a pistol, and a shotgun. See Tony Mandile, Try This Fun
Test Of Speed And Accuracy, Using Rifles, Pistols And Shotguns, National Shooting Sports
Foundation (undated), available at https://www.nssf.org/shooting/3-gun/. “Matches generally
involve courses where the shooter must move through different stages and engage targets in a
variety of different positions. Each stage will generally require the use of different firearms and
require the shooter to transition between them.” Id. “3-gun simulates combat or self-defense
situations. A stage provides a certain scenario for using one or more of the guns in a specific
sequence.” Id.
These competitions are mainstream and even endorsed by the federal government. Indeed,
the federal government sponsors shooting competitions through the Civilian Marksmanship
Program. And the district court in Shew v. Malloy found the AR-15 platform to be the leading type
of firearm used in those competitions. 994 F. Supp. 2d 234, 245 n.40 (D. Conn. 2014). As the
surveys discussed above confirm, target-shooting and competitive-shooting sports are some of the
main reasons why law-abiding citizens own AR-15 platform firearms, besides self-defense.
Modern rifles such as AR-15s are thus commonly possessed and used for a variety of lawful
purposes in this Nation, including but not limited to self-defense, particularly in the home. Under
Heller and Bruen, that ends the inquiry. AR-15s are therefore protected by the Second Amendment
and the Court should rule accordingly.
3. These arms are not unusually dangerous.
Because past is often prologue, we anticipate the District will argue that AR-15’s and
similar firearms are uniquely or unusually dangerous. It tried the same gambit in Heller regarding
handguns, to no avail. There, it advanced many reasons why “banning handguns would promote
18
public safety.” District of Columbia Heller Brief at 51. And it explained that handguns “are the
weapon most likely to be used in street crimes,” and while “only a third of the Nation’s firearms
are handguns,” the District trotted out its position that “they are responsible for far more killings,
woundings, and crimes than all other types of firearms combined.” Id. (citation omitted). The
District also claimed “[87] percent of all guns used in crime are handguns. Id. (citation omitted).
Gilding the lily, it also cited a study suggesting that after it enacted its handgun ban, there
was “an abrupt decline in firearm caused homicides in the District but no comparable decline
elsewhere in the region.” Id. at 52 (citation omitted). Then, it claimed that “[p]eople who live in
houses with firearms, particularly handguns, are some three times more likely to die in a homicide,
and much more likely to die at the hands of a family member or intimate acquaintance than people
who do not.” Id. (citation omitted).
Next, it suggested that handguns were a particular risk to young children. “The smaller the
weapon, the more likely a child can use it, and children as young as three years old are strong
enough to fire today’s handguns,” stated the District. Id. at 53 (citation omitted). It held out that
“the majority of people killed in handgun accidents are young adults and children, including
dozens under the age of 14.” Id. (citation omitted). And it pleaded that “handguns are easy to bring
to schools, where their concealability and capacity to fire multiple rounds in quick succession
make them especially dangerous.” (citation omitted). For good measure, it touted the then “recent
Virginia Tech shooting, [where] a single student with two handguns discharged over 170 rounds
in nine minutes, killing 32 people and wounding 25 more.” Id. (citation omitted). Finally, it
concluded that “purchasing a handgun correlates to a doubled risk that the buyer will die in a
homicide or a suicide.” Id. at 54 (citation omitted). In fact the District cited that handguns were
used in the overwhelming majority of murders of police officers. Id. at 52.
19
The Supreme Court’s in Heller disputed none of these assertions. It simply found them
irrelevant for purposes of the Second Amendment inquiry. What mattered was that handguns are
commonly possessed and used by law-abiding Americans for lawful purposes. Heller, 554 U.S.
at 628. “Whatever the reason” law-abiding individuals opted in droves to possess handguns for
lawful purposes, the commonality of their lawful possession was all it took to render the District’s
categorical ban unconstitutional.
The rifles the District labels as “assault weapons” are also commonly used for lawful
purposes—law-abiding Americans own tens of millions of them. They are not, however,
commonly used for crime. For example, a common misconception is that AR-15s are routinely
used in mass shootings. The VPC acknowledged that handguns are used in 74 percent of mass
shootings. VPC Heller Brief at 24. In other words, the prevalence of AR-15s in mass shootings is
at least exaggerated, and at worst fiction.
Additionally, according to a widely cited 2004 study, rifles like the AR-15 “are used in a
small fraction of gun crimes.” This has long been true. See Gary Kleck, Targeting Guns: Firearms
and Their Control 112 (1997) (evidence reveals that “well under 1 [percent of guns used in crime]
are ‘assault rifles.’”). Indeed, according to FBI statistics, in 2019 only 364 homicides were known
to be committed with rifles of any type, compared to 6,368 with handguns, 1,476 with knives or
other cutting instruments, 600 with personal weapons (hands, feet, and so on) and 397 with blunt
objects. See Expanded Homicide Table 8, Crime in the United States (FBI 2019), available at
https://bit.ly/3HdolNd. More recent FBI data is consistent. See
https://cde.ucr.cjis.gov/LATEST/webapp/#.
20
Judge Roger Benitez of the Southern District of California described perfectly the
relevance of this statistic, which underscores that these so-called “assault weapons” are
overwhelming used for lawful purposes:
• The United States Department of Justice reports that in the year 2021, in the
entire country 447 people were killed with rifles (of all types).
• From this one can say that, based on a national population of 320 million
people in the United States, rifles of any kind (including AR15s) were used
in homicides only 0.0000014% of the time.
• Put differently, if 447 rifles were used to commit 447 homicides and every
rifle-related homicide involved an AR-15, it would mean that of the
approximately 24,400,000 AR-15s in the national stock, less than
.00001832% were used in homicides.
• It begs the question: what were the other AR-15 type rifles used for?
• The only logical answer is that 24,399,553 (or 99.999985%) of AR-15s

were used for lawful purposes.
Miller v. Bonta, 2023 WL 6929336, at *3 (S.D. Cal. 2023).
That said, we expect the District to insist that AR-15 and similar-platform rifles are
“unusually dangerous.” That, however, is not the test. The test is explicitly stated in the
conjunctive: “dangerous and unusual,” and the government thus must satisfy both prongs. Heller,
554 U.S. at 627. See also Caetano, 577 U.S. at 417 (Alito, J., concurring) (“A weapon may not be
banned unless it is both dangerous and unusual.” (Emphasis in the original.)). And “the relative
dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly
used for lawful purposes,” because the firearm is then, by definition, “usual.” Id. at 418,
citing Heller, at 627 (contrasting dangerous and unusual weapons that may be banned with
protected weapons in common use at the time).
Caetano directly contradicts the argument that “dangerous and unusual” actually means
either “dangerous or unusual” or “unusually dangerous.” Caetano vacated a conviction for
21
possessing and using a stun gun. It contained three main holdings: (1) the Second Amendment
protects modern arms, (2) arms are not unusual just because they are modern inventions, and
(3) the Second Amendment’s protections are not limited to only arms useful in war. Caetano, 577
U.S. at 412.
What the Supreme Court did in Caetano is even more important than what it actually said.
The Massachusetts court applied the “dangerous and unusual” test Heller articulated as a
conjunctive test and reached separate conclusions on each of the two elements. Commonwealth v.
Caetano, 470 Mass. 774, 779-781 (2015). It had no difficulty reaching the conclusion stun guns
were “dangerous per se at common law.” Id. at 780. It then concluded that stun guns are unusual
weapons because they were not in common use at the time of the Founding, are a thoroughly
modern invention, and are not readily adaptable for use in the military. Id. at 781. Because it
separately found the existence of each element of the “dangerous and unusual” test, the
Massachusetts court upheld Caetano’s conviction.
If the “dangerous and unusual” test were a “dangerous or unusual” or “unusually
dangerous” test, the Supreme Court could not have reversed the Massachusetts court’s decision
without reversing both of its conclusions: (1) that stun guns are “dangerous” and (2) that stun guns
are “unusual.” Instead, the Supreme Court focused entirely on the “unusual” element in its per
curiam decision and said nothing about the lower court’s “dangerous” conclusion. Caetano, 577
U.S. at 411-12. It then vacated Caetano’s conviction and remanded the case for further
consideration. Id. at 412. Caetano thus confirms the “dangerous and unusual” test is a conjunctive
test, not a disjunctive test or an “unusually dangerous” test. It shows that a given arm cannot be
both “dangerous and unusual” if it is in common use.
22
Even if the Court were to focus on dangerousness, it is impossible to conclude that the
weapons the District bans such as the AR-15 are “unusually dangerous” compared to other arms
like hunting rifles. The wounding characteristics of the AR-15 are not materially different from
rifles or shotguns the District allows (although rifles and shotguns are more powerful, and thus
cause more severe wounds, than handguns). See Gracie R Baum, Jaxon T Baum, Dan Hayward,
and Brendan J MacKay, Gunshot Wounds: Ballistics, Pathology, and Treatment
Recommendations, with a Focus on Retained Bullets, 14 Orthop. Res. Rev. 293, 294-95 (2022)
(Exhibit 8, hereto), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9462949/pdf/orr-
14-293.pdf.
A typical personal protection handgun round, like the Hornady Critical Duty 135 gr. 9 mm
+P cartridge the FBI issues to its agents 11 and many police departments issue as well, does not
always immediate stop a threat. See Exhibit 8 at 298. Unless the shooter hits vital organs, a
determined criminal may not be dissuaded from perpetuating his threat. This has been borne out
in many law enforcement shootings, perhaps the most famous and notorious being the 1986 FBI
shootout in Miami.12
Rifle and shotgun rounds generally have far more ballistic energy than handgun rounds,
and thus cause more trauma. See Exhibit 8 at 298. That, however, is what makes them more
11 Seehttps://press.hornady.com/release/2022/04/28/hornady-critical-duty-awarded-fbi-9mm-full-
size-service-ammunition-contract/.
12 Seegenerally Edmundo & Eliabeth Mireles, FBI Miami Firefight: Five Minutes that Changed
the Bureau (2017). There eight agents engaged two bank robbers in a shootout where an estimated
140-50 rounds were fired. Early in the gun fight, suspect Michael Lee Platt emerged firing a Ruger
Mini-14 rifle—which the District does not ban—from the stolen car that had crashed into a tree as
FBI agents attempted to stop the vehicle. Platt was shot by a handgun round that went through his
brachial artery and into his lung, stopping just short of his heart. While that round would eventually
have been fatal, it did not stop him from killing two agents and severely wounding five others,
despite taking multiple additional shots.
23
effective self-defense weapons than handguns, as the District recognized in Heller. The higher the
ballistic energy of a firearm round, the more damage it is likely to do when it hits a living target—
whether that target is a predatory criminal or an innocent victim. See generally Exhibit 8. That is
the very nature of a rifle or shotgun wound compared to a pistol wound. See Exhibit 8 at 294-95.
Ballistic energy is determined by the mass of the projectile and the velocity of the round.
For example, the ballistic energy of the Hornady 135 gr +P 9 mm round mentioned above is 369-
foot pounds at the muzzle. See https://www.hornady.com/ammunition/handgun/9mm-luger-p-135-
gr-flexlock-critical-duty#!/. By contrast a 30.06 round, such as that fired from an M-1 Garand rifle,
has some 2820-foot pounds of energy at the muzzle. See Exhibit 9 (A chart showing ballistic data
for various rounds shot from rifles).
Although the AR-15 standard 55 gr. .223 round also has higher ballistic energy than the 9
mm pistol round discussed above, the energy from the .223 round is substantially less than that of
most common hunting cartridges. This can be seen by review of Exhibit 9, which lists the ballistic
energy of several common rifle hunting rounds. That chart shows the .223 round has muzzle energy
of 1282 foot pounds. Compare that to these common hunting rounds: .243 Win. 95 gr., 2027-foot
pounds; 6.5 mm Grendel 120 gr., 2234-foot pounds; 270 Win. 150 gr., 2705-foot pounds; 30-30
Win. 160 gr., 2046-foot pounds; 308 Win. 150 gr., 2548-foot pounds. Compared to most hunting
rounds the AR-15 rifle chambered in the standard .223 cal. or the 5.56 mm cartridge is a relatively
low powered rifle. Indeed, the .357 Mag. pistol cartridge (158 gr.) is comparable in terms of
ballistic energy when shot from a rifle, having 1175-foot pounds of ballistic energy at the muzzle.
The Remington 44 Mag. handgun cartridge (240 gr.) exceeds the .223 cartridge in ballistic energy
by a third with 1650-foot pounds of muzzle energy when shot from a rifle. All these rifle rounds
are legal in the District. Shotguns fired at close range are even more devastating than rifles. A 12-
24
gauge, one ounce (437-grain) slug fired at 1,850 feet per second produces 3,320-foot pounds of
energy at the muzzle. See Jeff Johnson, Muzzle-Energy Math: Comparing Shotgun Gauges for
Home Defense, NRAShootingIllustrated.com (Dec. 30, 2018), available at
https://www.shootingillustrated.com/content/muzzle-energy-math-comparing-shotgun-gauges-
for-home-
defense/#:~:text=So%2C%20let%E2%80%99s%20take%20a%20look%20at%20shotgun%20bal
listics.,why%20they%E2%80%99re%20used%20to%20blow%20hinges%20off%20doors. If
wounding characteristics were a sufficient basis to ban a firearm, then most rifles and shotguns
could be banned since wounds from these firearms tend to be much more severe than wounds from
most handguns. See generally Exhibit 8.
None of the various features the District forbids, such as pistol grips or adjustable stocks,
have anything to do with the wounding characteristics of a cartridge shot from a rifle. And despite
being slapped with the demonizing “assault” moniker, the features that the District has singled out
as problematic are in reality beneficial for personal self-defense. The capacity to accept detachable
magazines makes it easier for a citizen to reload her firearm, which can be critical in the stressful
circumstance of being forced to defend self, family, or home. A pistol grip improves accuracy and
reduces the risk of stray shots by stabilizing the firearm while firing from the shoulder. David B.
Kopel, Rational Basis Analysis of “Assault Weapon” Prohibition, 20 J. Contemp. L. 381, 396
(1994). “By holding the pistol grip, the shooter keeps the barrel from rising after the first shot, and
thereby stays on target for any needed follow-up shots. The defensive application is obvious, as is
the public safety advantage in preventing stray shots.” Kolbe v. Hogan, 849 F.3d 114, 159 (4th
Cir. 2017) (en banc) (Traxler, J., dissenting). Thumbhole stocks likewise give the user a more
comfortable and stable grip, which provides for greater accuracy and decreases the risk of dropping
25
the firearm or firing stray shots. And flash suppressors not only prevent users from being blinded
in low light conditions, such as at dusk or dawn, or during the nighttime, but also reduce recoil and
muzzle movement, making the firearm less painful to use—crucial in self-defense situations.
Kopel, 20 J. Contemp. L. at 397-99.13 As the District itself suggested in Heller, citizens should not
be limited to the use of less effective arms for self-defense.
It is thus no small wonder the Supreme Court has explicitly recognized that semiautomatic
rifles built on the AR-15 platform, all of which share these features, “traditionally have been
widely accepted as lawful possessions.” Staples, 511 U.S. at 612. See also Heller, 670 F.3d
at 1269-70 (Kavanaugh, J., dissenting) (“There is no meaningful or persuasive constitutional
distinction between semi-automatic handguns and semi-automatic rifles.”). That is (or at least
should be) the end of the inquiry, because it is that “tradition[]” that matters most to the
constitutional analysis. As the Supreme Court made clear in Bruen, it is not twenty-first-century
legislation, but “the traditions of the American people [] that demands our unqualified deference.”
142 S. Ct. at 2131 (quoting Heller, 554 U.S. at 635).
4. The banned arms are not weapons of war—a descriptor that is irrelevant to
this Court’s constitutional inquiry in any event.
The District might seek to rely on the Seventh Circuit, see Bevis v. City of Naperville, 85
F.4th 1175 (7th Cir. 2023), which suggested AR-15 platform and similar rifles may be banned
because they are “like” the M-16 machine gun which the Supreme Court suggested in Heller could
13 The District also bans grenade or flare launchers on semiauto rifles that take detachable
magazines. We do not claim these devices have substantial self-defense utility. Such devices are
not commonly present on the arms the District bans, however. Thus, as to these items, perhaps the
District could sustain its burden to show that they are both “dangerous and unusual.” Nonetheless,
we are not aware of rifle-propelled grenade or flare attacks being a serious public-safety issue in
this country. So, we do not see a likelihood the District could even make a dangerous showing
here, assuming it could make an unusual showing.
26
be banned. See Heller, 554 U.S. at 627. Or the District might argue that AR-15 and similar-
platform rifles are “weapons of war” and can be banned as the Fourth Circuit suggested in Kolby
v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc).This Court should reject such arguments because
Bevis and Kolby are based on a fundamental misreading of Heller.
There has never been a rule or principle that firearms may be banned if they are also used
by the military. The Seventh Circuit ruling in Bevis is thus in error. The supposed “distinction
between military and civilian weaponry” the court divined is illusory. As the dissent pointed out,
the military uses many firearms commonly used by civilians. “Under the majority opinion, the
military’s decision to award Beretta a military contract for the Beretta 92 [pistol] would take the
firearm out of the ‘Arms’ protected by the Second Amendment.” 85 F.4th at 1226 (Brennan, J.,
dissenting). This erroneous conflation of the actual historical standard—“dangerous and
unusual”—with any guns that are used by the military has taken hold in more than just the Seventh
Circuit. For example, in United States v. Berger, a district court referred to the idea that the Second
Amendment covers firearms used by the police or military as “absurd.” No. 5:22-CR-00033, 2024
WL 449247, at *9 (E.D. Pa. Feb. 6, 2024). But what is truly absurd (and ahistorical) is limiting the
Second Amendment only to firearms not used by the military or police. Such a rule would have
made muskets unprotected in the Founding era because they were used as the standard small arm
by both sides of the Revolutionary War. Military use in and of itself does not remove a gun from
the scope of the Second Amendment. This is not to say that weapons used by the military which
are shown to be “dangerous and unusual” are protected. As one district court explained, weapons
“useful solely for military purposes” are outside the Second Amendment’s scope. Duncan v.
Bonta, No.: 17-cv-1017-BEN (JLB), 2023 WL 6180472, at *17 (S.D. Cal. Sept. 22, 2023).
27
Heller made a deep dive into the text of the Second Amendment to find that the right to
keep and bear arms was an individual right. See 554 U.S. at 579-600. After interpreting the text,
Heller consulted history to, among other things, determine the limits on this textually grounded
right. Id. at 600-27. Specifically, the Court explained that the “historical tradition of prohibiting
the carrying of ‘dangerous and unusual weapons[,]’ ” permitted certain arms to be banned. Id. But
the Court also made clear that arms “in common use” are “protected” and therefore cannot be
banned. Id. This was a rule developed from “the historical understanding of the scope of the right,”
id. at 625, and tracked with another historical tradition: the explicit purpose for which the right to
keep and bear arms was included in the Constitution was to ensure the preservation of the militia,
and “[t]he traditional militia was formed from a pool of men bringing arms ‘in common use at the
time’ for lawful purposes like self-defense.” Id. at 624.
This interpretation did present one difficulty, which the Court confronted directly. “It may
be objected,” Heller noted, that if some of the “weapons that are most useful in military service—
M-16 rifles and the like”—are “highly unusual in society at large” and therefore “may be banned,
then the Second Amendment right is completely detached from the prefatory clause.” Id. at 627.
This was the passage that the Fourth Circuit, in Kolbe, seized upon to hold that firearms “‘like’ M-
16 rifles” fall outside the protection of the Second Amendment because they “are most useful in
military service.” Kolby, 849 F.3d at 136. But that position is almost precisely the opposite of what
Heller said. Rather, Heller addressed the tension between the stated purpose of the Amendment to
protect the militia on the one hand and that its protections may not extend to all military arms on
the other hand. The reason for that tension, the Court explained, was that “the conception of the
militia at the time of the Second Amendment’s ratification was the body of all citizens capable of
military service, who would bring the sorts of lawful weapons that they possessed at home to
28
militia duty.” In other words, militia members would be armed with weapons that were “in
common use” as opposed to those “that are highly unusual in society at large.” Heller, 554 U.S.
at 627.
Today, of course, some arms that are used by the military are not in common use by the
civilian population. That includes but is not limited to machine guns, grenades and shoulder
launched anti-tank missiles. But Heller did not hold that merely because an arm is used, or most
useful, by the military (or is like a firearm used by the military), it could not also be in common
use for lawful purposes by civilians. In other words, certain arms could be banned despite their
military utility, but not because of it. They could only be banned because they were both dangerous
and “highly unusual in society at large.” Id. at 627.
Indeed, the reasons the Founders valued the militia render nonsensical any argument that
the Second Amendment would fail to protect arms because they could be highly useful for military
purposes. As Heller explains, the militia was “useful in repelling invasions and suppressing
insurrections[,]” “render[ed] large standing armies unnecessary,” and enabled the People to be
“better able to resist tyranny.” Id. at 597-98. It would be counterintuitive, to say the least, that an
amendment designed to preserve the militia would categorically exclude the types of arms most
suited to the militia’s purposes.
Machine guns, like the M-16, have never been in common use in this Nation and are not in
common use today. Machine guns manufactured after May 1986 may not be transferred to
civilians. But prior to 1986, machine guns were not typically possessed by the American People
even though they were readily available assuming National Firearms Act requirements were met.
By ATF data, the number of pre-May 1986 manufactured transferable machine guns on the
National Firearms Registry totals some 176,000. ATF Freedom of Information Act Response
29
(February 24, 2016), available at https://www.nfatca.org/pubs/MG_Count_FOIA_2016.pdf.14 And
we have no data as to how many of those weapons were or are in the hands of law enforcement or
museums rather than citizens. Contrast that to the hundreds of thousands of Tasers and stun guns
Justice Alito found dispositive in Caetano. See 577 U.S. at 420 (“The more relevant statistic is that
‘[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,’ who it appears
may lawfully possess them in 45 States”). People v. Yanna, 297 Mich. App. 137, 144, 824 N.W.2d
241, 245 (2012) (holding Michigan stun gun ban unconstitutional).”
Contrary to the implication of the Fourth and Seventh Circuit opinions, Founding era
history shows that military weapons received the most protection under state Second Amendment
analogues. As Professor Leider recently explained:
All decisions and treatises have recognized that arms primarily useful for military
service were protected by the Second Amendment, while arms primarily used as
concealed weapons in personal conflicts were not. See, e.g., United States v. Miller,
307 U.S. 174, 178 (1939) (weapons that constitute “the ordinary military
equipment” or that “could contribute to the common defense); Aymette v. State, 21
Tenn. 154, 158 (Tenn. 1840) (“the arms the right to keep which is secured are such
as are usually employed in civilized warfare, and that constitute the ordinary
military equipment”); State v. Smith, 11 La. Ann. 633, 633 (1856) (“The arms there
spoken of are such as are borne by a people in war, or at least carried openly.”);
Andrews v. State, 50 Tenn. 165, 179 (Tenn. 1871) (“”the usual arms of the citizen
of the country, and the use of which will properly train and render him efficient in
defense of his own liberties,” including, “the rifle of all descriptions, the shot gun,
the musket, and repeater”); Thomas M. Cooley, The General Principles of
Constitutional Law in the United States of America 282–83 (2d ed. 1891) (“The
arms intended by the Constitution are such as are suitable for the general defense
of the community against invasion or oppression, and the secret carrying of those
suited merely to deadly individual encounters may be prohibited.”); 2 Joel Prentiss
Bishop, Commentaries on the Criminal Law (4th ed. 1868) (“As to [the Second
Amendment’s] interpretation, if we look to this question in the light of judicial
reason, without the aid of specific authority, we should be led to the conclusion,
14 According to the ATF, the total number of machine guns on the National Firearms Act Registry
exceeds 741,000. Yet the vast majority of those are post-1986-manufactured firearms in the hands
of law enforcement or are samples held by dealers for potential law-enforcement purchase. See
ATF, Commerce in the United States Annual Statistical Update 2021, at Exhibit 8, available at
https://www.atf.gov/firearms/docs/report/2021-firearms-commerce-report/download.
30
that the provision protects only the right to “keep” such “arms” as are used for
purposes of war, in distinction from those which are employed in quarrels and
brawls and fights between maddened individuals….”).
Historically, the difficult constitutional question was whether arms primarily useful
for self-defense (e.g., most handguns) were protected in addition to arms primarily
useful for warfare. Compare English v. State, 42 Tex. 455, 458–59 (1875) (“The
arms which every person is secured the right to keep and bear (in the defense of
himself or the State, subject to legislative regulation), must be such arms as are
commonly kept, according to the customs of the people, and are appropriate for
open and manly use in self-defense, as well as such as are proper for the defense of
the State.”), with English v. State, 35 Tex. 473, 476 (1871) (“The words ‘arms’ in
the connection we find it in the constitution of the United States, refers to the arms
of a militiaman or soldier, and the word is used in its military sense.”).
Robert Leider, Are Rifles Constitutional Protected Arms?, STANDING HIS GROUND (Apr. 16, 2024).
Indeed, it would be shocking to the Founders if a class of rifles potentially suitable for the
militia man or woman such as the AR-15 platform and similar rifles lacked constitutional
protection. The Second Amendment was written by people who had just revolted against a
tyrannical government. They sought to guarantee that the People would have a final recourse
should the new government they were forming turn tyrannical, or if a foreign invader toppled the
Republic. Tench Coxe, delegate to the Constitutional Convention, wrote that “[w]hereas civil
rulers, not having their duty to the people duly before them, may attempt to tyrannize, . . . the
people are confirmed by the article in their right to keep and bear their private arms.” Remarks on
the First Part of the Amendments to the Federal Constitution, under the pseudonym “A
Pennsylvanian,” PHILADELPHIA FEDERAL GAZETTE, June 18, 1789, p. 2 col. 1 (as quoted in the
FEDERAL GAZETTE, June 18, 1789). He also wrote that “Congress ha[s] no power to disarm the
militia. Their swords, and every other terrible implement of the soldier, are the birthright of an
American.” Tench Coxe, Letter to the Philadelphia Gazette, 20 Feb. 1788. Coxe reaffirmed this
view in 1813, writing that “militia” members, “have all the right, even in profound peace, to
purchase, keep and use arms of every description,” deeming this militia “the army of the
31
constitution.” SAMUEL WHITING, ET AL., SECOND AMERICAN EDITION OF THE NEW EDINBURGH
ENCYCLOPÆDIA, VOLUME 1 PART 2, at 652 (1813).
Other Founders felt similarly. Noah Webster wrote that “[b]efore a standing army can rule,
the people must be disarmed; as they are in almost every kingdom of Europe.” NOAH WEBSTER,
AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION PROPOSED BY
THE LATE CONVENTION HELD AT PHILADELPHIA (1787), reprinted in PAMPHLETS ON THE
CONSTITUTION OF THE UNITED STATES, at 56 (Paul Ford ed., 1888). Unlike in Europe, the United
States is less susceptible to tyrants enforcing unjust laws “because the whole body of the people
are armed, and constitute a force superior to any band of regular troops that can be, on any pretense,
raised in the United States.” Id. James Madison considered being armed an advantage that “the
Americans possess over the people of almost every other nation,” guarding against the rise of
tyrants. THE FEDERALIST NO. 46 (James Madison).
This view prevailed at the time of the adoption of the Fourteenth Amendment. Abolitionist
Representative Edward Wade said the “right to ‘keep and bear arms,’ is thus guarantied, in order
that if the liberties of the people should be assailed, the means for their defence shall be in their
own hands.” SLAVERY QUESTION.: SPEECH OF HON. EDWARD WADE OF OHIO IN THE HOUSE OF
REPRESENTATIVES, Aug. 2, 1856, at p.7 (Buell & Blanchard Publishers, 1856). Senator Charles
Sumner’s “The Crime Against Kansas” speech likewise bristled at the notion that slavery
opponents in Kansas should be disarmed of their rifles by the pro-slavery government: “Never was
this efficient weapon more needed in just self defence, than now in Kansas, and at least one article
in our National Constitution must be blotted out, before the complete right to it can in any way be
impeached.” CHARLES SUMNER, THE KANSAS QUESTION, SENATOR SUMNER’S SPEECH, REVIEWING
32
THE ACTION OF THE FEDERAL ADMINISTRATION UPON THE SUBJECT OF SLAVERY IN KANSAS 22-23
(Cincinnati, G.S. Blanchard, 1856).
Constitutional scholars during the reconstruction period agreed. Michigan Supreme Court
Justice Thomas Cooley explained “[t]he right declared was meant to be a strong moral check
against the usurpation and arbitrary powers of rulers, and as necessary and efficient means of
regaining rights when temporarily overturned by usurpation.” THOMAS M. COOLEY, LL.C., THE
GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 298 (1898). As
the original author of Black’s Law Dictionary stated, “[t]he citizen has at all times the right to keep
arms of modern warfare.” HENRY CAMPBELL BLACK, HANDBOOK OF AMERICAN CONSTITUTIONAL
LAW 403-04 (1895); see also JOHN NORTON POMEROY, AN INTRODUCTION TO THE
CONSTITUTIONAL LAW OF THE UNITED STATES 152 (1868) (“[A] militia would be useless unless the
citizens were enabled to exercise themselves in the use of warlike weapons.”); JOEL BISHOP,
COMMENTARIES ON THE CRIMINAL LAW 75 (1868) (“[T]he [Second Amendment] protects only the
right to ‘keep’ such ‘arms’ as are used for purposes of war, in distinction from those which are
employed in quarrels and brawls and fights between maddened individuals . . . .”). See generally
C.D. Michel and Konstadinos Moros, Restrictions “Our Ancestors Would Never Have Accepted”:
The Historical Case Against Assault Weapon Bans, 24 WYOM. L. REV. 89 (2024).
It is beyond dispute that the Founders saw the Second Amendment as a defense against
tyranny. As Heller explains:
It was understood across the political spectrum that the right helped to secure the
ideal of a citizen militia, which might be necessary to oppose an oppressive military
force if the constitutional order broke down.
....
[T]he threat that the new Federal Government would destroy the citizens’ militia
by taking away their arms was the reason that right—unlike some other English
rights—was codified in a written Constitution.
33
Heller, 554 U.S. at 599. Judge Alex Kozinski put it in striking terms:
The prospect of tyranny may not grab the headlines the way vivid stories of gun
crime routinely do. But few saw the Third Reich coming until it was too late. The
Second Amendment is a doomsday provision, one designed for those exceptionally
rare circumstances where all other rights have failed; where the government refuses
to stand for reelection and silences those who protest; where courts have lost the
courage to oppose, or can find no one to enforce their decrees. However improbable
these contingencies may seem today, facing them unprepared is a mistake a free
people get to make only once.
Fortunately, the Framers were wise enough to entrench the right of the people to
keep and bear arms within our constitutional structure. The purpose and importance
of that right was still fresh in their minds, and they spelled it out clearly so it would
not be forgotten.
Silveira v. Lockyer, 328 F.3d 567, 569-70 (9th Cir. 2003) (Kozinski, J., dissenting). There can be
no historical tradition of barring firearms just because they may be useful in combat, when one of
the main purposes of the Second Amendment was as a “doomsday provision” for the People to
protect themselves from a tyrannical government or foreign invader.
5. The District cannot show a historical basis to support its Ban.
Because modern semiautomatic rifles and the myriad of other arms banned under District
law are arms in common use for lawful purposes today, they are protected by the Second
Amendment, full stop, rendering the District’s effort to ban them flatly unconstitutional. Bruen,
142 S. Ct. at 2134. Because the common use test as developed in Heller and confirmed in Bruen
is historically based, there is no need to conduct further historical analysis. Yet should the Court
do so, the conclusion that the firearms the District bans are protected would be confirmed twice
over. At a minimum, these arms are “presumptively protect[ed]” by the Second Amendment, so
the District would have to “affirmatively prove that its . . . regulation is part of the historical
tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2126.
Under Bruen’s historical test, the Court must determine whether a modem gun-control
measure and a purported historical analogue are either “distinctly similar” or “relevantly similar.”
34
Id. at 2131-32. And under Heller and McDonald, there are “at least two metrics” for determining
the requisite similarity: “how and why the regulations burden a law-abiding citizen’s right to armed
self-defense.” Id. at 2133. How means “whether modern and historical regulations impose a
comparable burden on the right of armed self-defense.” Id. Why means “whether that burden is
comparably justified.” Id. This second metric prevents historic, burdensome laws that were enacted
for one purpose from being used as a pretext to impose burdens for others. Id. at 2132-33.
The District cannot make a sufficient historical showing to save its Ban. There were no
comparable restrictions on rifles, pistols and shotguns when either the Second Amendment or the
Fourteenth Amendment was ratified. Although many states and the federal government began
restricting fully automatic firearms in the 1920s and 1930s, only three states and the District of
Columbia restricted semiautomatic firearms and those rare restrictions solely related to
ammunition capacity. Duncan, 970 F.3d at 1150 & n.10. Moreover, most of those laws were
repealed within a few decades, and none took the extreme approach of banning semiautomatic
firearms (whether rifles, pistols or shotguns) entirely. And those regulations all date from the
Twentieth Century, a period that Bruen held is simply too late in time to inform the original
meaning of the Second Amendment. See Bruen, 142 S. Ct. at 2154 n.28 (“As with their late-19th-
century evidence, the 20th-century evidence presented by respondents and their amici does not
provide insight into the meaning of the Second Amendment when it contradicts earlier evidence.”).
Reference to the actual relevant period, the Founding era,15 shows no restrictions on
commonly possessed arms. Bruen discusses an East New Jersey colonial law enacted in 1686 that
15 See Bruen, 142 S. Ct. at 2137-38:

[W]e have made clear that individual rights enumerated in the Bill of Rights and
made applicable against the States through the Fourteenth Amendment have the
same scope as against the Federal Government. See, e.g., Ramos v. Louisiana, 590
U.S. ––, ––, 140 S. Ct. 1390 1397, 206 L. Ed. 2d 583 (2020); Timbs v. Indiana, 586
35
“prohibited the concealed carry of ‘pocket pistol[s]’ or other ‘unusual or unlawful weapons,’ and
it further prohibited ‘planter[s]’ from carrying all pistols unless in military service or, if ‘strangers,’
when traveling through the Province. An Act Against Wearing Swords, &c., ch. 9, in Grants,
Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed. 1881) (Grants
and Concessions).” Bruen, 142 S. Ct. at 2143. Bruen found that this law did not meaningfully
support New York’s restriction on carrying handguns. Among other reasons, East Jersey’s law only
prohibited concealed carry, it was not long-standing, applied only to “unusual or unlawful
weapons” and was a single solitary statute enacted “roughly a century before the founding.” Id.
at 2143-44. It is also significant that it did not apply to long guns as does the District’s statute here.
Id. at 2144. Moreover, “[e]ven assuming that pocket pistols were, as East Jersey in 1686 deemed
them, ‘unusual or unlawful,’ it appears that they were commonly used at least by the founding.”
Id. at 2144 n.13 (citing G. NEUMANN, THE HISTORY OF WEAPONS OF THE AMERICAN REVOLUTION
150–151 (1967); H. HENDRICK, P. PARADIS, & R. HORNICK, HUMAN FACTORS ISSUES IN HANDGUN
SAFETY AND FORENSICS 44 (2008)).
Although weapons regulation was sparse in the Founding period, it was not non-existent.
That said, existing regulations at the time flunk the “how” and “why” test Bruen requires the Court
to apply in considering the District’s Ban. Nineteenth century regulations on gunpowder storage,
for example, were designed to protect the public by quelling the risk of catastrophic fire and
U.S. ––, –– – ––, 139 S. Ct. 682, 686–687, 203 L. Ed. 2d 11 (2019); Malloy v.
Hogan, 378 U.S. 1, 10–11, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). And we have
generally assumed that the scope of the protection applicable to the Federal
Government and States is pegged to the public understanding of the right when the
Bill of Rights was adopted in 1791. See, e.g., Crawford v. Washington, 541 U.S. 36,
42–50, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (Sixth Amendment); Virginia v.
Moore, 553 U.S. 164, 168-169, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (Fourth
Amendment); Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117, 122-25, 131
S. Ct. 2343, 180 L. Ed. 2d 150 (2011) (First Amendment).
36
explosion inherent in the possession of gunpowder in large quantities. The potential for fires and
explosions, however, has nothing at all to do with the concerns the District appears to have with
the arms it bans.
Various states also enacted concealed carry regulations on Bowie knives and certain impact
weapons, in a few cases also imposing sales restrictions or taxes on such weapons. These of course
were not restrictions on firearms and Bruen specifically states the historical analysis on a firearm
restriction must relate to the Nation’s historic tradition of firearms regulation. Id. at 2126. Thus,
per Bruen, the historic regulation of other weapons is not relevant to the analysis of a firearms
regulation. Nor do the few outlier regulations adopted after the ratification of the Fourteenth
Amendment, such as bans on the carry of pocket pistols in states like Tennessee and Arkansas,
support the District’s Ban. This handful of historical outliers amounted to “time, place, and
manner” restrictions that did not wholly ban the possession and use of those weapons as the District
has done with the firearms it derides as “assault weapons.” Those regulatory schemes imposed
vastly different burdens on gun ownership than the outright ban at issue. See Rapp v. Bonta,
No. 8:17-cv-00746-JLS-JDE, 2024 WL 1142061, at *21 (C.D. Cal. Mar. 15, 2024) (laws
pertaining to carry employ a different “how”). They are plainly not analogous for Bruen’s history-
and-tradition test even if they rose to the level of “well-established” examples, which they do not.
See Bruen,142 S. Ct. at 2133.
* * *
In sum, the Plaintiffs are likely to prevail on the merits because the arms the District bans
as “assault weapons” are commonly possessed and used for lawful purposes. Under Heller and
Bruen such arms cannot be subject to a blanket prohibition. And while Heller provided the
historical analysis to find that commonly possessed and used arms cannot be banned, were this
37
Court to undertake its own analysis it would conclude—as did Heller—that no historical basis
exists for banning commonly possessed and used arms such as are issue here.
B. The Plaintiffs suffer irreparable harm from the District’s Ban.
Beyond the Plaintiffs’ likelihood of prevailing on the merits, the Plaintiffs will also suffer
irreparable harm unless an injunction issues. See Winter v. NRDC, 555 U.S. at 22. This inquiry
requires the Court to assume the Plaintiffs have established a likelihood of success on the merits
and then to ask “whether that violation, if true, inflicts irremediable injury.” Chaplaincy of Full
Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006). The District’s Ban inflicts
immediate and irreparable injury on the Plaintiffs by prohibiting conduct protected under the
Second Amendment right to keep and bear arms. The Plaintiffs lack an adequate remedy at law for
this burden on their Second Amendment rights. Plaintiff Yzaguirre is denied possession within the
District of his preferred arm for home self-defense. Plaintiff G&D is denied the ability to effect
transfers of the banned arms to its District resident customers.
Where, as here, the District’s actions violate the Plaintiff’s constitutional rights, the
infringement constitutes irreparable injury. As the D.C. Circuit has explained, “[s]uits for
declaratory and injunctive relief against the threatened invasion of a constitutional right do not
ordinarily require proof of any injury other than the threatened constitutional deprivation itself.”
Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (brackets omitted) (quoting Davis v. District
of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998)). Thus, “although a plaintiff seeking equitable
relief must show a threat of substantial and immediate irreparable injury, a prospective violation
of a constitutional right constitutes irreparable injury for these purposes.” Id. (brackets omitted)
(quoting Davis, 158 F.3d at 1346). See also Berg v. Glen Cove City Sch. District, 853 F. Supp. 651
(E.D.N.Y. 1994); J. Doe v. Shenandoah Cnty. School Bd., 737 F. Supp. 913 (W.D. Va. 1990).
38
That the violation of a constitutional right by itself constitutes irreparable harm derives
from the Supreme Court’s decision in Elrod v. Burns that “[t]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.” 427 U.S. 347,
373 (1976). As the Seventh Circuit explained in the context of another Second Amendment
challenge:
The loss of a First Amendment right is frequently presumed to cause irreparable

harm based on the intangible nature of the benefits flowing from the exercise of
those rights; and the fear that, if those rights are not jealously safeguarded, persons
will be deterred, even if imperceptibly, from exercising those rights in the future.
Ezell v. City of Chicago, 651 F.3d at 699 (internal quotation marks omitted). The Second
Amendment also protects “intangible and unquantifiable interests.” Id. Indeed, its “central
component is the right to possess [arms] for protection,” and violations of that right plainly “cannot
be compensated by damages.” Id. Thus, for violations of Second Amendment rights, as for
violations of First Amendment rights, “irreparable harm is presumed.” Id.
For these reasons, law-abiding citizens like the Plaintiffs suffer irreparable harm each day
they endure the District’s Ban. The allegation of the violation, without more, satisfies the
irreparable injury requirement. Moreover, each day the unconstitutional Ban continues in force,
Plaintiff Yzaguirre risks physical injury because he is unable to fully exercise his Second
Amendment right to self-defense in the manner that best meets his needs. Of course, that injury
cannot be compensated adequately through money damages. See Ezell, 651 F.3d at 699.
C. The balance of equities tips overwhelmingly in the Plaintiffs’ favor.
The equities weigh strongly in the Plaintiffs’ favor as they suffer an ongoing violation of
their constitutional rights. This ongoing violation constitutes irreparable injury to the Plaintiffs and
their ability to defend themselves from attack. Any interest the District may have in enforcing its
Ban is largely speculative. Moreover, the Second Amendment itself derives from interest balancing
39
by the People and leaves no room for the third branch of government to determine whether the
rights it protects are “really worth insisting upon.” Heller, 554 U.S. at 634 (emphasis in original).
D. An injunction is in the public interest.
For similar reasons, an injunction is also in the public interest. Courts have acknowledged
the “obvious” fact that “enforcement of an unconstitutional law is always contrary to the public
interest.” Gordon, 721 F.3d at 653; K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99,
114 (3d Cir. 2013) (“[T]he enforcement of an unconstitutional law vindicates no public interest.”);
Kentucky v. Biden, 23 F.4th 585, 612 (6th Cir. 2022) (“[T]he public’s true interest lies in the correct
application of the law.”). Because enforcement of the Ban is unconstitutional, an injunction against
such enforcement is necessarily in the public interest. And the public interest is served by
vindicating citizens’ constitutional rights and affording them an opportunity effectively to defend
themselves from attack, not by perpetuating an unconstitutional and ineffective restriction on that
right.
III. THE COURT SHOULD WAIVE THE BOND REQUIREMENT OR SET A NOMINAL BOND BECAUSE
THE DISTRICT WILL SUFFER NO HARM FROM A PRELIMINARY INJUNCTION.
The Plaintiffs ask the Court to set the bond amount at zero. Federal Rule of Civil Procedure
65(c) provides:
Security. No restraining order or preliminary injunction shall issue except upon the
giving of security by the applicant, in such sum as the court deems proper, for the
payment of such costs and damages as may be incurred or suffered by any party
who is found to have been wrongfully enjoined or restrained.
The Court has the discretion to set the bond amount “in such sum as the court deems
proper.” Fed. R. Civ. P. 65(c). Consequently, the district Court may set the bond amount at zero or
a nominal amount “[w]here [it] determines that the risk of harm is remote, or that the circumstances
otherwise warrant it. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 41 1, 421, n.3 (4th
Cir. 1999) (remanding case to district court for determination of appropriate bond amount).
40
Courts have set a nominal bond or waived the requirement altogether where, for example:
(l) the risk of harm to the defendant is remote or nonexistent, SEC v. Dowdell,
Civil No. 3:01-cv-00116, 2002 U.S. Dist. LEXIS 19980 at (W.D. Va., Oct.
11, 2002) (setting nominal $100 bond after concluding that the risk of harm
to the defendants was minimal);
(2) the plaintiff has made a strong showing of likelihood of success on the
merits, Ark. Best corp. v. Carolina Freight Corp., 60 F.Supp.2d 517, 518
(W.D.N.C. 1999) (requiring nominal $100 security bond where plaintiffs
made a strong showing of likelihood of success on the merits);
(3) the balance of hardships weighs overwhelmingly in favor of the plaintiff,

Temple Univ. v. White, 941 F.2d 201 (3d Cir. 1991), cert. denied 502 U.S.
1032 (1992) (requiring no bond in non-commercial case where the balance
of hardships that each party would suffer as the result of a preliminary
injunction weighs overwhelmingly in favor of the party seeking the
injunction); and
(4) the case involves enforcement of a public interest, Pharm. Soc. of the State
of N. Y., Inc. v. N. Y. State Dep’t of Soc Servs., 50 F.3d 1 168, 1 174 (2d Cir.
1995) (concluding that “an exception to the bond requirement has been
crafted for cases involving the enforcement of public interests arising out
of ‘comprehensive federal health and welfare statutes’”); Westfield High
Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp.2d 98, 128, 129 (D. Mass.
2003) (waiving bond requirement where plaintiffs submitted affidavits
indicating their financial inability to post a security bond and where
plaintiffs were seeking to preserve their rights to free expression and free
exercise of religion).
The Plaintiffs request that the Court set the bond amount at zero because the District cannot
demonstrate it will suffer any harm from grant of a preliminary injunction. This is a civil rights
case, not commercial litigation. Even if the District ultimately prevailed, injunctive relief would
cause no monetary damage. Indeed, by not enforcing the ordinances at issue, the District would
avoid public expenditures that would otherwise be required. In fact, the Plaintiffs have
demonstrated they will suffer irreparable harm if preliminary relief is not granted. The bond
requirement should be waived also because the Plaintiffs’ enforcement of important constitutional
rights serves the public interest. See Westfield High Sch. L.I.F.E. Club, 249 F. Supp. 2d at 129
41
(waiving bond requirement after concluding that plaintiffs’ suit to enforce their rights to freedom
of expression and free exercise of religion served the public interest).
For these reasons, the Plaintiffs request that the Court not require a bond.
IV. THE COURT SHOULD ENTER FINAL JUDGMENT FOR THE PLAINTIFFS.
The Federal Rules of Civil Procedure permit this Court to advance the trial on the merits
of a permanent injunction and consolidate it with the hearing for a preliminary injunction. Fed. R.
Civ. P. 65(a)(2). “[W]hen the eventual outcome on the merits is plain at the preliminary-injunction
stage, the judge should, after due notice to the parties, merge the stages and enter a final judgment.”
Morris v. District of Columbia, 38 F.Supp.3d 57, 62 n.1 (D.D.C. 2014) (quoting Curtis 1000, Inc.
v. Suess, 24 F.3d 941, 945 (7th Cir. 1994)). The D.C. Circuit employed this procedure in Wrenn.
See 864 F.3d at 667.
Unless the District can show the need to develop a factual record to support the Ban and
that the Ban is supported by the Nation’s historical tradition of firearms regulation, a permanent
injunction is appropriate now. In that regard the Court should require the District to identify the
specific areas appropriate for discovery and resolution at trial. In the absence of such issues, the
outcome of this case will not depend on any facts presented at trial, and no “genuine uncertainty
[exists] at the preliminary injunction stage concerning what that outcome will be.” See Curtis 1000,
24 F.3d at 945.
At this preliminary-injunction stage, the Court will have all the facts it needs and only
questions of law will remain to be resolved. As in Moore v. Madigan, “[t]he constitutionality of
the challenged statutory provisions does not present factual questions for determination in a trial.”
702 F.3d 933, 942 (7th Cir. 2013). To the extent any questions of disputed material fact exist, those
questions involve only “legislative facts” that bear on the justification for legislation, not
“adjudicative facts” that must be determined at trial. Id. The D.C. Circuit has already found that
42
these arms are commonly possessed. Heller II, 670 F.3d at 1261.The Supreme Court has already
held that commonly possessed arms are protected. Bruen, 142 S. Ct. at 2128. No further factual
record is necessary. Even if the Court were to engage in a historical inquiry, that inquiry focuses
on the existence or non-existence of substantially similar or relevantly similar laws which would
be presented in the briefs. Traditional discovery is thus unnecessary.
The Seventh Circuit’s disposition in Moore, involving Illinois’s complete ban on carrying
firearms for personal protection, is instructive here, as that court remanded for entry of a
declaration of unconstitutionality and a permanent injunction upon reversing the district court’s
judgment granting Illinois’s motion to dismiss. See Moore, 702 F.3d at 942. Similarly, Bruen
required no remand for factual development of the record beyond that developed on the motion to
dismiss. Likewise, here the Court will have all the information it needs to make a final judgment
upon conclusion of the preliminary-injunction proceedings. The Court should enter final judgment
and put an end to the District’s unconstitutional Ban of commonly possessed arms.
CONCLUSION.
The Plaintiffs have shown they are likely to prevail on the merits of this action. They have
shown they suffer irreparable harm from the District’s Ban of commonly possessed arms. They
have shown the balance of equities weighs in their favor. They have shown that the public interest
favors granting an injunction. And they have shown that they are entitled to a permanent injunction
now. For all these reasons, the Court should preliminarily and permanently enjoin the District from
enforcing its ban on commonly possessed and used arms.
43
Dated: July 7, 2024 Respectfully submitted,
/s/ George L. Lyon, Jr. /s/ Edward M. Wenger

George L. Lyon, Jr. Edward M. Wenger
D.C. Bar No. 388678 D.C. Bar No. 1001704
Matthew J. Bergstrom HOLTZMAN VOGEL BARAN
D.C. Bar. No. 989706 TORCHINSKY & JOSEFIAK, PLLC
ARSENAL ATTORNEYS 2300 N Street NW, Suite 643
4000 Legato Road, Suite 1100 Washington, DC 20037
Fairfax, VA 22033 (202) 737-8808 (phone)
(202) 669-0442 (telephone) (540) 341-8809 (facsimile)
(202) 483-9267(facsimile) [email protected]
[email protected]
[email protected]
Kenneth C. Daines
D.C. Bar No. 1600753
Andrew Pardue
D.C. Bar No. 7650715
HOLTZMAN VOGEL BARAN
TORCHINSKY & JOSEFIAK, PLLC
15405 John Marshall Highway
Haymarket, VA 20169
(202) 737-8808 (phone)
(540) 341-8809 (facsimile)
[email protected]
[email protected]
Counsel for the Plaintiffs
44
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 7th day of July, 2024, a true copy of this Memorandum
of Points and Authorities in Support of the Plaintiffs’ Motion for a Preliminary Injunction was
filed electronically with the Clerk of Court using the Court’s CM/ECF system, which will send by
email a notice of docketing activity to all counsel of record.
/s/ Edward M. Wenger

EDWARD M. WENGER
D.C. Bar No. 1001704
45

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Case 1:24-cv-01828-APM Document 12-1 Filed 07/07/24 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT

TYLER YZAGUIRRE, et al. )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

TABLE OF CONTENTS ................................................................................................................. i

United States v. Miller,

INTRODUCTION AND SUMMARY OF THE ARGUMENT

742, 749 (2010).

same time, the District’s Ban violates the Second Amendment.

“common use” equates to constitutional protection.

advances or how much fearmongering it manufactures. Complete prohibitions on weapons in

takes “off the table.” Id. at 636.

cognizable harm from an injunction.

against enforcement of the Ban. See Wrenn, 864 F.3d at 667.

STATUTORY BACKGROUND AND STATEMENT OF FACTS

2501.01(3A)(A)(i), defines “Assault Weapons”5 as follows:

(bb) A thumbhole stock;

(cc) A folding or telescoping stock;

(dd) A grenade launcher or flare launcher;

(ee) A flash suppressor; or

(ff) A forward pistol grip;

(V) A semiautomatic pistol that has the capacity to accept a detachable

(aa) A threaded barrel, capable of accepting a flash suppressor, forward

(bb) A second handgrip;

(cc) A shroud that is attached to, or partially or completely encircles, the

(dd) The capacity to accept a detachable magazine at some location

(VI) A semiautomatic shotgun that has one or more of the following:

(aa) A folding or telescoping stock;

(cc) A thumbhole stock; or

(dd) A vertical handgrip; and

(VII) A semiautomatic shotgun that has the ability to accept a detachable

unknown number of similar weapons.

“assault weapons” definition. And possession of an unregistered firearm is a misdemeanor

hundreds of different firearms.

interest-balancing analysis—which the Supreme Court has proscribed—the District would be

protected arms. See Bruen, 142 S. Ct. at 2132.

I. THE PLAINTIFFS HAVE STANDING.

their constitutional rights, they meet this standard.

third-party standing for a vendor of alcohol challenging the constitutionality of gender-based

differentials in state liquor laws).

II. THE PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION.

A. The Plaintiffs are likely to succeed on the merits.

1. The “assault weapons” Ban is unconstitutional because it bans commonly

by the Second Amendment.

Heller, 554 U.S. at 628.

pistols and shotguns.

Ban is unconstitutional because a jurisdiction cannot prohibit ordinary law-abiding Americans

from possessing what the Constitution explicitly entitles them to “keep.”

Types of Firearms Owned, at 2 (May 13, 2022), available at https://bit.ly/3HaqmKv. Exhibit 4,

in our imperfect world begins to materialize.

contemplated offensive use as well. Heller, 554 U.S. at 581.

2. The choice of the American People governs.

responsible for determining which arms they choose to use themselves:

Bruen, 142 S. Ct. at 2131.

11, 2008).9 The VPC’s brief asserted:

are much more effective in stopping a [criminal].” That contention is supported by

firearms, is a plainly reasonable and constitutional restriction.” Id.

Rifle, https://thunderranchinc.com/wv-urban-rifle. The course is “[g]enerally, for magazine fed

see https://www.gunsite.com/classes/223-gunsite-carbine-class/ (“Carbines make an excellent