District Judge: "Common Rifles, Pistols,
Shotguns, Magazines of over 10 Rounds
not Protected by the Second Amendment"

On August 3, 2023, Judge Janet Bond Arterton of the United States District Court for the District of Connecticut ruled on whether the recent Connecticut law banning the possession of common semi-automatic rifles and pistols under the appellation of "assault weapons" and of standard capacity magazines which hold more than 10 rounds. Judge Arterton ruled the law is not prohibited by the Second Amendment. She does not see it as an infringement, because, she claims, "assault weapons" and magazines over 10 rounds are not arms protected by the Second Amendment. Magazines which hold more than 10 rounds are referred to as large capacity magazines or "LCM"s by the court. From NAGR v. Lamont:

For the reasons discussed below, the Court denies Plaintiffs' motion for a preliminary injunction because they have failed to meet their burden to demonstrate a likelihood of success on their claim that the challenged statutes unconstitutionally burden their Second Amendment right to keep and bear arms. Plaintiffs' proposed ownership of assault weapons and LCMs is not protected by the Second Amendment because they have not demonstrated that the specific assault weapons and LCMs in the Challenged Statutes are commonly sought out, purchased, and used for self-defense. Although this failure alone would have been fatal to Plaintiffs' claim, Defendants have submitted persuasive evidence that assault weapons and LCMs are more often sought out for their militaristic characteristics than for self-defense, that these characteristics make the weapons disproportionately dangerous to the public based on their increased capacity for lethality, and that assault weapons and LCMs are more often used in crimes and mass shootings than in self-defense.

Judge Arterton uses this claim to place the burden of proof on those in opposition to the firearms ban. Her argument rests on two interpretations of Heller, McDonald and Bruen, and a dismissal of Caetano as irrelevant. Heller sets up the standard: Protected arms are those which are in common use for lawful purposes. From Judge Arterton, page 18:

Heller characterized Miller as standing for the proposition that the Second Amendment "extends only to certain types of weapons," id. at 622-23; weapons "used in defense of person and home" are constitutionally protected, but "weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barred shotguns," are not. Id. at 624-25. The historical tradition of "prohibiting the carrying of 'dangerous and unusual weapons'" as discussed in 18th and 19th century treatises, Heller held, supported Miller's restriction on the scope of the Second Amendment, which Heller described as an "important limitation on the right." Id. at 627.5

Heller did not put more limitations on the right to keep and bear arms than in Miller. Instead, Heller showed the arms protected were all arms in common use for lawful purposes, not just those arms which were useful in the military. .....