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State v. Giannone
STATE OF CONNECTICUT v. MICHAEL GIANNONE
(AC 46008)
Bright, C. J., and Clark and Seeley, Js.
Syllabus
The defendant appealed from the judgments of the trial court following his
convictions of several weapons related charges. He claimed that the trial
court improperly denied his motions to dismiss and to suppress because it
had incorrectly determined that the applicable statutes (§§ 53-202b, 53-202w
and 53a-211) did not violate his second amendment right to bear arms. Held:
The trial court applied an incorrect legal standard in denying the defendant’s
motions to dismiss and to suppress; accordingly, this court reversed the
judgments and remanded the cases to the trial court for reconsideration of
the defendant’s motions under the standard announced in New York State
Rifle & Pistol Assn., Inc. v. Bruen (597 U.S. 1).
In adjudicating the defendant’s as applied constitutional challenge on
remand, the trial court was directed to apply the text and history test set
forth in Bruen, under which the defendant bears the initial burden to show
that the plain text of the second amendment presumptively protects his
right to keep and bear the items at issue.
This court directed that, if the trial court finds that the second amendment
presumptively protects the defendant’s conduct, the state then bears the
burden to establish the constitutionality of the statutes at issue through
historical analogues of firearm regulation that imposed a comparable burden
that is comparably justified.
Argued March 4—officially released September 17, 2024
Procedural History
Substitute information, in the first case, charging the
defendant with two counts each of the crimes of sale
of an assault weapon, possession of an assault weapon
and possession of a large capacity magazine, and with
one count of the crime of firearms trafficking, and substitute information, in the second case, charging the
defendant with sixty-five counts of the crime of possession of a large capacity magazine, nine counts of the
crime of possession of an assault weapon, three counts
of the crime of possession of a silencer and one count
each of the crimes of improper storage of firearms, risk
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State v. Giannone
of injury to a child and possession of a weapon on
school grounds, brought to the Superior Court in the
judicial district of Danbury, where the court, Pavia,
J., denied the defendant’s motions to dismiss and to
suppress certain evidence; thereafter, the defendant
was presented to the court, D’Andrea, J., on conditional
pleas of nolo contendere to two counts each of sale of
an assault weapon, possession of a silencer and possession of a large capacity magazine; judgments of guilty
in accordance with the pleas; subsequently, the state
entered a nolle prosequi in each case as to the remaining
charges, and the defendant appealed to this court.
Reversed; further proceedings.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Melissa E. Patterson, senior assistant state’s attorney, with whom, on the brief, were David R. Applegate,
state’s attorney, and Matthew Knopf, assistant state’s
attorney, for the appellee (state).
Opinion
BRIGHT, C. J. The defendant, Michael Giannone,
appeals from the judgments of conviction rendered by
the trial court following his conditional pleas of nolo
contendere to two counts each of sale of an assault
weapon in violation of General Statutes § 53-202b (a)
(1), possession of a silencer in violation of General
Statutes § 53a-211, and possession of a large capacity
magazine in violation of General Statutes § 53-202w (c)
(2). On appeal, the defendant claims that the court
improperly denied his motion to dismiss the charges
against him and his motion to suppress evidence seized
by the police because the statutes under which he was
convicted violate his right to bear arms under the second amendment to the United States constitution.1 In
1
In his principal brief on appeal, the defendant phrases the sole issue as
whether his convictions violate the second amendment. The issue is more
properly stated as whether the trial court improperly denied his motion to
dismiss and motion to suppress because, pursuant to General Statutes § 54-
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State v. Giannone
light of the United States Supreme Court’s recent decision in New York State Rifle & Pistol Assn., Inc. v.
Bruen, 597 U.S. 1,
142 S. Ct. 2111,
213 L. Ed. 2d 387
(2022), which was issued after the trial court denied
the defendant’s motions but prior to his sentencing, we
conclude that the judgments of the trial court must be
reversed and the cases remanded for an evidentiary
hearing on the defendant’s motions. In addition, we
provide guidance to the trial court regarding how it
should analyze the claims raised in the defendant’s
motions under Bruen.
The following undisputed facts and procedural history are relevant to the present appeal. In March, 2016,
a confidential source informed the state police that the
defendant was selling AR-15 style rifles2 without serial
numbers and without proper documentation. An undercover detective subsequently conducted two controlled
firearm purchases from the defendant at the defendant’s
residence in New Fairfield during the weeks of March 13
94a, those are the only issues that this court may consider on appeal. See
footnote 10 of this opinion.
Additionally, we note that, although the defendant filed memoranda of
law in support of both motions, his memorandum of law in support of the
motion to suppress simply restated the basis for his motion to suppress and
adopted the memorandum of law in support of the motion to dismiss.
Furthermore, the trial court addressed these motions together, with the
heading of the court’s memorandum of decision stating that it pertains to
the ‘‘motion to suppress/dismiss.’’ Because the parties’ arguments and the
court’s analysis of the defendant’s second amendment claims are the same
as to both motions, we address the defendant’s claim on appeal as pertaining
to both motions.
2
The United States Supreme Court has described the AR-15 as ‘‘the civilian
version of the military’s M-16 rifle,’’ noting that, ‘‘unless modified, [it is] a
semiautomatic weapon.’’ Staples v. United States, 511 U.S. 600, 603,
114 S.
Ct. 1793,
128 L. Ed. 2d 608 (1994); see also Soto v. Bushmaster Firearms
International, LLC, 331 Conn. 53, 70,
202 A.3d 262 (‘‘the AR-15 assault rifle
. . . is substantially similar to the standard issue [M-16] military service
rifle . . . but fires only in semiautomatic mode’’), cert. denied sub nom.
Remington Arms Co., LLC v. Soto, U.S. , 140 S. Ct. 513,
205 L. Ed.
2d 317 (2019).
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State v. Giannone
and 20, 2016. During the first transaction, the detective
purchased from the defendant an AR-15 style semiautomatic .223 caliber assault rifle with a pistol grip, collapsible stock, and flash suppressor, bearing no serial number, and a thirty round large capacity magazine in
exchange for $800. During the second transaction, the
undercover detective purchased from the defendant
another AR-15 style semiautomatic .223 caliber assault
rifle with a pistol grip, collapsible stock, flash suppressor, and approximately 10.5 inch barrel, also bearing no
serial number, and another thirty round large capacity
magazine in exchange for $800. No paperwork was completed or transferred regarding either sale. In connection with these two transactions, in Docket No. CR-16-
153002-S, the state charged the defendant in a March
23, 2016 information with, inter alia, two counts of sale
of an assault weapon in violation of § 53-202b (a) (1).3
As a result of the seizure by the police of various firearm
related items while executing a search warrant at the
defendant’s residence, the state also charged the defendant in a June 14, 2016 substitute information in Docket
No. CR-XX-XXXXXXX-S with, inter alia, three counts of
possession of a silencer in violation of § 53a-2114 and
sixty-five counts of possession of a large capacity magazine in violation of § 53-202w (c) (2).5
3
General Statutes § 53-202b (a) (1) provides: ‘‘Any person who, within
this state, distributes, transports or imports into the state, keeps for sale,
or offers or exposes for sale, or who gives any assault weapon, except as
provided by sections 53-202a to 53-202k, inclusive, shall be guilty of a class
C felony and shall be sentenced to a term of imprisonment of which two
years may not be suspended or reduced by the court.’’
Pursuant to General Statutes § 53-202a (1) (B) (xx), ‘‘assault weapon’’
includes, among others, AR-15 ‘‘semiautomatic centerfire rifles, or copies
or duplicates thereof with the capability of any such rifles . . . .’’
4
General Statutes § 53a-211 provides in relevant part: ‘‘(a) A person is
guilty of possession of . . . a silencer when he owns, controls or possesses
. . . any silencer designed to muffle the noise of a firearm during discharge. . . .’’
5
General Statutes § 53-202w provides in relevant part: ‘‘(c) Except as
provided in this section and section 53-202x . . . (2) any person who possesses a large capacity magazine on or after January 1, 2014, that was
obtained on or after April 5, 2013, shall be guilty of a class D felony. . . .’’
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State v. Giannone
On January 2, 2019, the defendant filed a motion to
dismiss the charges against him and a motion to suppress the seized evidence. He filed memoranda of law
in support of both motions, in which he argued that
the statutes under which he was charged violate his
right to bear arms under the second amendment to the
United States constitution and article first, § 15, of the
Connecticut constitution. The state filed a memorandum of law in opposition to the defendant’s motions
on February 4, 2019. Without a hearing,6 the court,
Pavia, J., subsequently denied the defendant’s motions
in a June 12, 2019 memorandum of decision,7 concluding
that the statutes at issue did not unconstitutionally
infringe on the defendant’s right to bear arms as guaranteed by the state and federal constitutions. In reaching
that conclusion, the court applied the pre-Bruen two
step approach that the United States Court of Appeals
for the Second Circuit and several other federal circuit
courts adopted following the United States Supreme
Court’s decisions in District of Columbia v. Heller, 554
U.S. 570,
128 S. Ct. 2783,
171 L. Ed. 2d 637 (2008), and
McDonald v. Chicago, 561 U.S. 742,
130 S. Ct. 3020,
177
L. Ed. 2d 894 (2010). See New York State Rifle & Pistol
Assn., Inc. v. Cuomo, 804 F.3d 242, 253–54 (2d Cir.
2015), cert. denied sub nom. Shew v. Malloy, 579 U.S.
6
During a court proceeding on January 10, 2019, after setting a deadline
for the state to file a response to the defendant’s motions, the court noted
that it was ‘‘probably [going to] need [to hold] a hearing’’ on those motions.
The following colloquy then occurred between the court and the prosecutor:
‘‘[The Prosecutor]: I don’t think it’s an evidentiary, I think it’s just more—
‘‘The Court: More of an argument—
‘‘[The Prosecutor]: —you can take on the papers. Yes.
‘‘The Court: —okay.’’
Defense counsel did not argue that an evidentiary hearing was necessary.
Moreover, there is no indication in the record, including in the court’s
memorandum of decision, that the court held a hearing at which evidence
or argument was presented on the defendant’s motions.
7
Although the court indicated in its memorandum of decision that the
motion to suppress ‘‘is addressed in a separate ruling,’’ there is no separate
ruling in the record. See footnote 1 of this opinion.
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State v. Giannone
917, 136 S. Ct. 2486,
195 L. Ed. 2d 822 (2016). That two
step framework required a court first to assess whether
the challenged statute burdened conduct protected by
the second amendment. Id., 254. If the first step was
satisfied, the court would move to the second step of
the inquiry, at which it would ‘‘[evaluate] the law under
some form of means-end scrutiny. If the law passe[d]
muster under that standard, it [was] constitutional. If
it fail[ed], it [was] invalid.’’ (Internal quotation marks
omitted.) State v. DeCiccio, 315 Conn. 79, 111,
105 A.3d
165 (2014). In DeCiccio, our Supreme Court concluded
that intermediate scrutiny applied in the second amendment context; id., 142; which required the state to ‘‘demonstrate that the [firearms regulation at issue] [was]
substantially related to an important government objective.’’8 (Internal quotation marks omitted.) Id., 143.
In the present cases, the trial court’s analysis focused
almost exclusively on the second step of the pre-Bruen
test. Applying the intermediate scrutiny means-end test
8
The United States Supreme Court acknowledged in Bruen that ‘‘[s]tep
one of the predominant framework [was] broadly consistent with Heller’’;
New York State Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 19; and
that its decision in Bruen was merely applying the text and history test set
forth in Heller. See id., 26. Therefore, as other courts have recognized, pre-Bruen decisions applying Heller have at least some relevance following
Bruen to the extent that they are consistent with the text and history test
established in Heller and clarified in Bruen. See, e.g., Hanson v. District
of Columbia, 671 F. Supp. 3d 1, 8 (D.D.C. 2023) (Bruen’s ‘‘first step is
consistent with the first step of [c]ourts of [a]ppeals’ decisions pre-Bruen.
In other words, Bruen did not disturb the analysis [c]ourts of [a]ppeals
conducted under the first step of their framework. . . . The [c]ourt will
therefore . . . accord [the step one] analysis [in those pre-Bruen cases]
persuasive weight to the extent they are instructive.’’ (Citation omitted.)),
appeal filed (D.C. Cir. May 17, 2023) (No. 23-7061); see also United States
v. Kirby, Docket No. 3:22-cr-26-TJC-LLL, 2023 WL 1781685, *1 (M.D. Fla.
February 6, 2023) (‘‘Bruen, despite changing the [s]econd [a]mendment
landscape, did not overrule Heller’’), aff’d, Docket No. 24-10142, 2024 WL
2846679 (11th Cir. June 5, 2024), petition for cert. filed (U.S. September 4,
2024) (No. 24-5453). Accordingly, we rely on pre-Bruen case law such as
DeCiccio in this opinion to the extent that we find that it is consistent
with Bruen.
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State v. Giannone
pursuant to DeCiccio, the court stated: ‘‘While the
defendant enjoys the protection of his second amendment right to bear arms, this right is not unfettered. . . .
[T]he constitution does not confer a right to possess
any and all weapons unconstrained by restriction. The
government has a critical interest in the protection of
its citizens to live freely from the threats of violence
and destruction. See New York State Rifle & Pistol
Assn., Inc. v. Cuomo, supra, [
804 F.3d 261] (government
has substantial, indeed compelling, governmental interests in public safety and crime prevention). This court
must therefore evaluate whether the challenged statutes in the present cases bear a substantial relationship
to the achievement of this governmental objective. It
is important to note that none of the charged offenses
bar the defendant from enjoying his constitutionally
protected second amendment rights. The defendant has
a legal means to avail himself of his right to bear arms.
See Benjamin v. Bailey, 234 Conn. 455, 471, [
662 A.2d
1226] (1995) (a statutory ban on assault weapons does
not impair the right to bear arms, as it continues to
permit access to a wide array of weapons). The government, however, has an interest in the protection of
society, and this interest is substantially furthered by
reducing access to, and in restricting the transfer of,
assault weapons and large capacity magazines. [Id.,
467.] (courts have overwhelmingly recognized that the
right to bear arms is not infringed by reasonable regulation by the state in the exercise of its police power to
protect the health, safety and morals of the citizenry).
This stands particularly true in weapons that are void
of any traceable and identifying markings. As such, the
court finds that the statutes in question in the present
matter do not infringe upon the defendant’s right to
bear arms as guaranteed by the United States and Connecticut constitutions.’’ (Footnote omitted; internal
quotation marks omitted.)
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State v. Giannone
Following the court’s denial of the defendant’s
motions to dismiss and to suppress, the state filed a
substitute information in Docket No. CR-XX-XXXXXXX-S
on May 3, 2022, charging him with, inter alia, two counts
each of sale of an assault weapon and possession of
a large capacity magazine. The defendant thereafter
entered pleas of nolo contendere to two counts of sale
of an assault weapon, two counts of possession of a
silencer,9 and two counts of possession of a large capacity magazine, conditioned on his right to appeal from
the court’s rulings on his motion to dismiss and motion
to suppress. See General Statutes § 54-94a.10 After the
court ruled on the defendant’s motions, but prior to his
sentencing, the United States Supreme Court issued its
decision in New York State Rifle & Pistol Assn., Inc.
v. Bruen, supra,
597 U.S. 1. In Bruen, the Supreme
9
The trial court record inconsistently describes the silencer charge. For
instance, the judgments of the trial court, D’Andrea, J., setting forth the
defendant’s sentences describe the offense both as ‘‘possession of sawed
off shotgun/silencer in violation of . . . § 53a-211’’ and ‘‘possession of a
silencer in violation of . . . § 53a-211,’’ which statute prohibits the possession of both silencers and sawed-off shotguns. We also observe that Judge
Pavia’s memorandum of decision denying the defendant’s motions to dismiss
and to suppress notes that ‘‘[t]he defendant stands charged with the crimes
of firearms trafficking, illegal sale of an assault weapon, illegal possession
of an assault weapon, illegal possession of a large capacity magazine, [and]
possession of a sawed-off shotgun’’ but not that the defendant was charged
with the crime of possession of a silencer. The substitute information that the
state filed in Docket No. CR-XX-XXXXXXX-S, however, describes the relevant
charge as ‘‘possession of a silencer (three counts)’’ in violation of § 53a-
211. We rely on the information as an accurate statement of the charges
against the defendant.
10
General Statutes § 54-94a provides in relevant part: ‘‘When a defendant,
prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s
motion to suppress or motion to dismiss, the defendant after the imposition
of sentence may file an appeal within the time prescribed by law provided
a trial court has determined that a ruling on such motion to suppress or
motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the
court to have denied the motion to suppress or the motion to dismiss. . . .’’
See also Practice Book § 61-6 (a) (2) (A) (same).
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State v. Giannone
Court expressly rejected the Second Circuit’s two step
framework, which the trial court applied in the present
cases. See id., 19. The Supreme Court, instead, clarified
and applied ‘‘Heller’s text-and-history standard’’; id., 39;
which the court emphasized did not involve the means-end balancing that the trial court had applied in the
present cases. See id., 19.
Despite the Supreme Court’s decision in Bruen, the
defendant did not ask the trial court to reconsider his
motions to suppress and to dismiss. Accordingly, on
September 2, 2022, the court, D’Andrea, J., sentenced
the defendant to a total effective term of ten years of
incarceration, execution suspended after three years,
with five years of probation.11 This appeal followed.
I
On appeal, the defendant claims that the Supreme
Court’s decision in Bruen ‘‘has revolutionized courts’
analysis of firearms laws.’’ The defendant argues that
the proper application of the Bruen analysis in the
present cases leads to the conclusion that the statutes
under which the defendant was convicted are unconstitutional as applied to him,12 and his convictions therefore must be vacated. The state acknowledges that
11
Specifically, the trial court sentenced the defendant as follows: (1) on
each of the two counts of sale of an assault weapon, ten years of incarceration, execution suspended after three years, with five years of probation
with special conditions, and deadly weapon offender registration; (2) on
each of the two counts of possession of a silencer, five years of incarceration,
execution suspended after three years, with five years of probation with
special conditions, and deadly weapon offender registration; and (3) on
each of the two counts of illegal possession of a large capacity magazine,
five years of incarceration, execution suspended after three years, with five
years of probation with special conditions and deadly weapon offender
registration. The sentences were to run concurrently with each other for a
total effective sentence of ten years of incarceration, execution suspended
after three years, two of which were a mandatory minimum. The state
entered a nolle prosequi as to all remaining counts.
12
During oral argument before this court, the state argued that the defendant’s claims were facial challenges to the statutes at issue. We do not
construe his claims that way. Although, in his principal and reply briefs on
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State v. Giannone
Bruen explicitly rejected the means-end analysis that
the trial court had applied in the present cases but
argues that Bruen did not materially alter the manner
in which courts apply the second amendment to restrictions on certain types of weapons. Consequently, the
state argues that the trial court correctly concluded
that the statutes under which the defendant was convicted are constitutional.
To provide context for our analysis of Bruen’s impact
on the present dispute, we begin with a review of the
development of second amendment law, starting with
the United States Supreme Court’s seminal decision in
appeal, the defendant refers to the regulated firearms generally as ‘‘assault
weapons’’ or ‘‘semiautomatic rifles,’’ suggesting that his challenge to General
Statutes § 53-202a may not be limited to the prohibition on the sale of the
particular AR-15 style rifles at issue in the present cases, the defendant does
not argue that the statutes at issue are unconstitutional as applied to each
of the specific firearms enumerated in those statutes. See General Statutes
§ 53a-211 (banning, in addition to silencers, sawed-off shotguns) and General
Statutes § 53-202a (enumerating various types of assault weapons, including
both semiautomatic and fully automatic firearms, including, but not limited
to, AR-15s, that fall within statutory definition of ‘‘assault weapon’’). Such
a showing is required to prevail on a facial challenge under Bruen. See
United States v. Rahimi, U.S. , 144 S. Ct. 1889, 1898,
219 L. Ed. 2d
351 (2024) (facial challenge ‘‘requires a defendant to establish that no set
of circumstances exists under which the [statute] would be valid’’ (emphasis
added; internal quotation marks omitted)); see also National Assn. for Gun
Rights v. Lamont, 685 F. Supp. 3d 63, 92 (D. Conn. 2023) (plaintiffs raising
facial challenge to assault weapon ban on ‘‘specific firearms of enumerated
models and features,’’ as opposed to a complete ban on ‘‘all semiautomatic
rifles, or . . . semiautomatic handguns,’’ had burden ‘‘to present evidence
regarding the specific assault weapons enumerated in the [c]hallenged [s]tatutes’’ (emphasis in original)). Moreover, the defendant’s counsel indicated
during oral argument before this court that each of his claims ‘‘could be’’
and ‘‘probably [are]’’ as applied challenges. Consequently, we construe the
defendant’s claim as to each statute to be that it is unconstitutional as
applied to the particular facts of his cases. We do not, however, intend
to preclude the defendant from arguing on remand that the statutes are
unconstitutional on their face, in which case he will bear a much heavier
burden. See United States v. Rahimi, supra, 1898 (facial challenge is ‘‘most
difficult challenge to mount successfully’’ (internal quotation marks omitted)).
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State v. Giannone
District of Columbia v. Heller, supra,
554 U.S. 570. ‘‘In
Heller, the United States Supreme Court was called on
to determine the constitutionality of District of Columbia ordinances that broadly prohibited the possession
of handguns, in the home and elsewhere; see id., 574–76;
and also required citizens to ‘keep their lawfully owned
firearms, such as registered long guns, ‘‘unloaded and
disassembled or bound by a trigger lock or similar
device’’ unless they are located in a place of business
or are being used for lawful recreational activities.’ Id.,
575. In determining whether the second amendment
confers an individual right to possess arms and, if so, the
scope of such a right, the court conducted an extensive
textual and historical analysis of the second amendment, which provides: ‘A well regulated Militia, being
necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be
infringed.’ U.S. Const., amend. II.’’ (Footnote omitted.)
State v. DeCiccio, supra, 315 Conn. 108–109. As to the
meaning of ‘‘[a]rms’’ in the second amendment, the
court in Heller stated that ‘‘[t]he 18th-century meaning
is no different from the meaning today.’’ District of
Columbia v. Heller, supra, 581. The court referenced
both a 1773 dictionary, which defined ‘‘arms’’ as
‘‘[w]eapons of offence, or armour of defence,’’ and a
1771 legal dictionary, which defined that term as ‘‘any
thing that a man wears for his defence, or takes into
his hands, or useth in wrath to cast at or strike another.’’
(Internal quotation marks omitted.) Id.
In DeCiccio, our Supreme Court stated: ‘‘Upon examining the prefatory and operative clauses of the second
amendment; see generally District of Columbia v.
Heller, supra, [554 U.S. 577–600]; the court [in Heller]
concluded that it ‘guarantee[s] the individual right to
possess and carry weapons in case of confrontation.’13
13
‘‘The court emphasized that its reading of the operative clause in this
manner was consistent with the prefatory clause, observing that: ‘It is therefore entirely sensible that the [s]econd [a]mendment’s prefatory clause
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State v. Giannone
Id., 592. The court observed, however, that this right is
‘not unlimited, just as the [f]irst [a]mendment’s right of
free speech [is] not . . . . Thus, [the court] do[es] not
read the [s]econd [a]mendment to protect the right of
citizens to carry arms for any sort of confrontation, just
as [the court] do[es] not read the [f]irst [a]mendment
to protect the right of citizens to speak for any purpose.’
. . . Id., 595. After considering the parameters of the
second amendment right, the court held that it does
protect the possession of ‘weapons . . . typically possessed by law-abiding citizens for lawful purposes’; id.,
625; and does not protect ‘dangerous and unusual weapons.’ . . .
Id., 627. The court further concluded that
the District of Columbia’s firearms ordinances violated
‘the inherent right of self-defense [that] has been central
to the [s]econd [a]mendment right. The handgun ban
amounts to a prohibition of an entire class of arms that
is overwhelmingly chosen by American society for that
lawful purpose. The prohibition extends, moreover, to
the home, where the need for defense of self, family,
and property is most acute. Under any of the standards
of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred
firearm in the nation to keep and use for protection of
one’s home and family . . . would fail constitutional
muster.’ . . . Id., 628–29.
‘‘Two years later, the United States Supreme Court
considered whether the second amendment right to
keep and bear arms is incorporated in the concept of
announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory 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.
But the threat that the new [f]ederal [g]overnment 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 [c]onstitution.’ District of
Columbia v. Heller, supra,
554 U.S. 599.’’ State v. DeCiccio, supra,
315 Conn.
109 n.21.
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State v. Giannone
due process and, therefore, applicable to the states via
the fourteenth amendment. See McDonald v. Chicago,
supra,
561 U.S. 750. The court in McDonald explained
that its ‘decision in Heller points unmistakably to the
answer. Self-defense is a basic right, recognized by
many legal systems from ancient times to the present
day, and, in Heller, [the court] held that individual self-defense is the central component of the [s]econd
[a]mendment right.’ . . . Id., 767. Following a detailed
historical analysis; see generally id., 768–77; the court
concluded that the second amendment is applicable to
the states because ‘the [f]ramers and ratifiers of the
[f]ourteenth [a]mendment counted the right to keep and
bear arms among those fundamental rights necessary
to our system of ordered liberty.’ Id., 778.’’ (Footnote
in original.) State v. DeCiccio, supra, 315 Conn. 109–11.
Then came Bruen. Nearly fifteen years after Heller
was decided, the United States Supreme Court considered a challenge to a New York statute that required a
handgun owner to demonstrate ‘‘ ‘proper cause’ ’’ to
acquire a permit to carry a handgun in public. See New
York State Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 12. The court began its analysis by summarizing
its prior holdings and how those holdings had been
applied: ‘‘In Heller and McDonald, we held that the
[s]econd and [f]ourteenth [a]mendments protect an
individual right to keep and bear arms for self-defense.
In doing so, we held unconstitutional two laws that
prohibited the possession and use of handguns in the
home. In the years since, the [c]ourts of [a]ppeals have
coalesced around a two-step framework for analyzing
[s]econd [a]mendment challenges that combines history with means-end scrutiny. . . .
‘‘At the first step, the government may justify its regulation by establish[ing] that the challenged law regulates
activity falling outside the scope of the right as originally
understood. E.g., Kanter v. Barr, 919 F.3d 437, 441 (7th
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State v. Giannone
Cir. 2019) . . . . But see United States v. Boyd, 999
F.3d 171, 185 (3d Cir. 2021) (requiring claimant to show
a burden on conduct falling within the scope of the
[s]econd [a]mendment’s guarantee). The [c]ourts of
[a]ppeals then ascertain the original scope of the right
based on its historical meaning. . . . If the government
can prove that the regulated conduct falls beyond the
[a]mendment’s original scope, then the analysis can
stop there; the regulated activity is categorically unprotected. . . . But if the historical evidence at this step
is inconclusive or suggests that the regulated activity
is not categorically unprotected, the courts generally
proceed to step two. . . .
‘‘At the second step, courts often analyze how close
the law comes to the core of the [s]econd [a]mendment
right and the severity of the law’s burden on that right.
. . . The [c]ourts of [a]ppeals generally maintain that
the core [s]econd [a]mendment right is limited to self-defense in the home. . . . If a core [s]econd [a]mendment right is burdened, courts apply strict scrutiny and
ask whether the [g]overnment can prove that the law is
narrowly tailored to achieve a compelling governmental
interest. . . . Otherwise, they apply intermediate scrutiny and consider whether the [g]overnment can show
that the regulation is substantially related to the
achievement of an important governmental interest.’’
(Citations omitted; emphasis altered; footnote omitted;
internal quotation marks omitted.) New York State
Rifle & Pistol Assn., Inc. v. Bruen, supra, 597 U.S. 17–19.
The court in Bruen then concluded that ‘‘Heller and
McDonald do not support applying means-end scrutiny
in the [s]econd [a]mendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the
outer bounds of the right to keep and bear arms.’’ Id., 19.
The court held ‘‘that when the [s]econd [a]mendment’s
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State v. Giannone
plain text covers an individual’s conduct, the [c]onstitution presumptively protects that conduct. To justify its
regulation, the government may not simply posit that
the regulation promotes an important interest. Rather,
the government must demonstrate that the regulation
is consistent with this [n]ation’s historical tradition of
firearm regulation. Only if a firearm regulation is consistent with this [n]ation’s historical tradition may a
court conclude that the individual’s conduct falls outside the [s]econd [a]mendment’s unqualified command.’’ (Emphasis added; internal quotation marks
omitted.) Id., 17. In Bruen, the court emphasized that
it was doing no more than applying Heller’s ‘‘straightforward historical inquiry’’ to New York’s proper cause
requirement. Id., 27. Thus, ‘‘[f]ollowing the course
charted by Heller, [the court] consider[ed] whether historical precedent from before, during, and even after
the founding evince[d] a comparable tradition of regulation.’’ (Internal quotation marks omitted.) Id.
The court recognized, though, that before considering
whether a particular regulation falls within the nation’s
historical tradition, it first had to determine whether the
second amendment’s plain text covered the individual’s
conduct. The conduct in Bruen was ‘‘carrying handguns
publicly for self-defense.’’ Id., 32. Again, the court relied
on Heller as its lodestar to guide its analysis: ‘‘We have
already recognized in Heller at least one way in which
the [s]econd [a]mendment’s historically fixed meaning
applies to new circumstances: Its reference to arms
does not apply only [to] those arms in existence in the
18th century. [District of Columbia v. Heller, supra,
554 U.S. 582]. Just as the [f]irst [a]mendment protects
modern forms of communications, and the [f]ourth
[a]mendment applies to modern forms of search, the
[s]econd [a]mendment extends, prima facie, to all
instruments that constitute bearable arms, even those
that were not in existence at the time of the founding.
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State v. Giannone
[Id.] . . . Thus, even though the [s]econd [a]mendment’s definition of arms is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.’’
(Internal quotation marks omitted.) New York State
Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S.
28. The court further explained that, in Heller, ‘‘[a]fter
holding that the [s]econd [a]mendment protected an
individual right to armed self-defense, we also relied
on the historical understanding of the [a]mendment to
demark the limits on the exercise of that right. We noted
that, [l]ike most rights, the right secured by the [s]econd
[a]mendment is not unlimited. [District of Columbia v.
Heller, supra, 626.] From Blackstone through the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and carry
any weapon whatsoever in any manner whatsoever and
for whatever purpose. [Id.] For example, we found it
fairly supported by the historical tradition of prohibiting
the carrying of dangerous and unusual weapons that
the [s]econd [a]mendment protects the possession and
use of weapons that are in common use at the time.
[Id., 627] . . . .’’ (Internal quotation marks omitted.)
New York State Rifle & Pistol Assn., Inc. v. Bruen,
supra, 21.
In Heller and Bruen, the court easily concluded that
handguns were arms within the meaning of the second
amendment. As the court stated in Heller, ‘‘the inherent
right of self-defense has been central to the [s]econd
[a]mendment right. The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.’’ District of Columbia v. Heller, supra,
554 U.S.
628; see also New York State Rifle & Pistol Assn., Inc.
v. Bruen, supra, 597 U.S. 31–32 (‘‘[i]t [was] undisputed
. . . that handguns are weapons in common use today
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State v. Giannone
for self-defense,’’ and court had ‘‘little difficulty concluding that’’ second amendment’s plain text protects
right to carry handguns publicly for self-defense (internal quotation marks omitted)).
Having concluded in Heller and Bruen that the plain
text of the second amendment protects the right to
keep and bear handguns for self-defense, the court then,
in each case, assessed whether there were any analogous historical regulations that justified the handgun
regulation at issue. In Bruen, in an effort to make ‘‘the
constitutional standard endorsed in Heller more
explicit’’; New York State Rifle & Pistol Assn., Inc. v.
Bruen, supra,
597 U.S. 31; the court explained the process as follows: ‘‘Much like we use history to determine
which modern arms are protected by the [s]econd
[a]mendment, so too does history guide our consideration of modern regulations that were unimaginable
at the founding. When confronting such present-day
firearm regulations, this historical inquiry that courts
must conduct will often involve reasoning by analogy—
a commonplace task for any lawyer or judge. Like all
analogical reasoning, determining whether a historical
regulation is a proper analogue for a distinctly modern
firearm regulation requires a determination of whether
the two regulations are relevantly similar. . . . And
because [e]verything is similar in infinite ways to everything else . . . one needs some metric enabling the
analogizer to assess which similarities are important
and which are not . . . . For instance, a green truck
and a green hat are relevantly similar if one’s metric is
things that are green. . . . They are not relevantly similar if the applicable metric is things you can wear.
‘‘While we do not now provide an exhaustive survey
of the features that render regulations relevantly similar
under the [s]econd [a]mendment, we do think that
Heller and McDonald point toward at least two metrics:
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State v. Giannone
how and why the regulations burden a law-abiding citizen’s right to armed self-defense.’’ (Citations omitted;
internal quotation marks omitted.) Id., 28–29. The court
then looked to the history of public carry regulations
from the late 1200s to the early 1900s. See id., 34. The
court cautioned, however, that ‘‘[h]istorical evidence
that long predates either [the adoption of the second
amendment in 1791 or of the fourteenth amendment in
1868] may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening
years. . . . Similarly, we must also guard against giving
postenactment history more weight than it can rightly
bear. . . . [T]o the extent later history contradicts
what the text says, the text controls.’’14 (Citations omitted.) Id., 34–36.
After a ‘‘long journey through the Anglo-American
history of public carry,’’ the court in Bruen concluded
that the ‘‘respondents [had] not met their burden to
identify an American tradition justifying the [s]tate’s
proper-cause requirement. . . . Apart from a few late-
19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public
carry of commonly used firearms for personal defense.
Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to demonstrate a special need for self-protection
distinguishable from that of the general community in
order to carry arms in public.’’ (Citation omitted; internal quotation marks omitted.) Id., 70. The court consequently held that ‘‘New York’s proper-cause requirement violates the [f]ourteenth [a]mendment in that it
prevents law-abiding citizens with ordinary self-defense
needs from exercising their right to keep and bear
arms.’’ Id., 71.
14
The court in Bruen ‘‘acknowledge[d] that there is an ongoing scholarly
debate on whether courts should primarily rely on the prevailing understanding of an individual right when the [f]ourteenth [a]mendment was ratified
in 1868 when defining its scope (as well as the scope of the right against
the [f]ederal [g]overnment).’’ New York State Rifle & Pistol Assn., Inc. v.
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State v. Giannone
Recently, the United States Supreme Court again
addressed the scope of the second amendment in
United States v. Rahimi, U.S. , 144 S. Ct. 1889,
219 L. Ed. 2d 351 (2024), in which it provided some
clarification of the Bruen test. Rahimi involved a second amendment challenge to ‘‘[a] federal statute [that]
prohibits an individual subject to a domestic violence
restraining order from possessing a firearm if that order
includes a finding that he represents a credible threat
to the physical safety of [an] intimate partner, or a child
of the partner or individual.’’ (Internal quotation marks
omitted.) Id., 1894. An eight person majority of the
court, after considering regulations on the possession
of weapons by those who pose a threat to others ‘‘[f]rom
the earliest days of the common law’’; id., 1899; to the
early 1800s, had ‘‘no trouble concluding that [the statute] survive[d] [the defendant’s] facial challenge. Our
tradition of firearm regulation allows the [g]overnment
to disarm individuals who present a credible threat to
the physical safety of others. [The statute] can be
applied lawfully to [the defendant].’’ Id., 1902. In reaching this conclusion, the court in Rahimi explained that,
‘‘when a challenged regulation does not precisely match
its historical precursors, it still may be analogous
enough to pass constitutional muster.’’ (Internal quotation marks omitted.) Id., 1898.
Accordingly, under Bruen, a court asks first whether
the second amendment’s plain text covers the conduct
at issue. New York State Rifle & Pistol Assn., Inc. v.
Bruen, supra,
597 U.S. 32. If so, that conduct is presumptively protected, and the court proceeds to the second
step, at which it asks whether the government has satis-
Bruen, supra,
597 U.S. 37. The court did not settle that issue because ‘‘the
public understanding of the right to keep and bear arms in both 1791 and
1868 was, for all relevant purposes, the same with respect to public carry.’’
Id., 38.
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State v. Giannone
fied its burden to identify a historical tradition justifying
its firearm regulation.15 Id., 33–34.
Having set forth the test that the court applied in
Bruen and having provided historical context for the
recent developments in second amendment law, we
turn to the test that the trial court applied in the present
cases when it decided the defendant’s motions to dismiss and to suppress. As previously noted in this opinion, the court applied the then prevailing two step
approach adopted by the Second Circuit, following
Heller, to assess the defendant’s second amendment
claims and concluded that his claims failed under the
type of means-end balancing test that the Supreme
Court recently rejected in Bruen. The court in the present cases therefore, through no fault of its own, did not
apply the correct legal standard when assessing the
merits of the second amendment claims raised in the
defendant’s motions. Additionally, the court did not
hold a hearing on the defendant’s motions and, therefore, did not make any factual findings that, as we will
explain, are necessary to apply the Bruen test. See
footnote 6 of this opinion. Accordingly, the record is
15
In Bruen, the court stated that the two step analytical framework that
many courts applied following Heller was ‘‘one step too many,’’ implying
that the Bruen test does not have two separate steps. New York State Rifle &
Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 19. Post-Bruen, courts have
nonetheless interpreted the text and history test applied in Bruen as a two
step approach that asks, first, whether the second amendment’s plain text
protects the proposed conduct and, second, whether the regulation is nonetheless consistent with the historical tradition of firearms regulation. See,
e.g., Bevis v. Naperville, 85 F.4th 1175, 1191 (7th Cir. 2023), cert. denied
sub nom. Harrel v. Raoul, U.S. , 144 S. Ct. 2491, L. Ed. 2d
(2024); United States v. Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023); United
States v. Rahimi, 61 F.4th 443, 453 (5th Cir. 2023), rev’d on other grounds,
U.S. , 144 S. Ct. 1889,
219 L. Ed. 2d 351 (2024); see also United States
v. Rahimi, supra,
144 S. Ct. 1928 (Jackson, J., concurring) (observing that
Bruen rejected pre-Bruen ‘‘two-step approach as having one step too many’’
but then ‘‘subbed in another two step evaluation’’ (internal quotation marks
omitted)). Accordingly, for ease of discussion, we similarly address the
Bruen test in two separate steps.
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State v. Giannone
inadequate for our review of the defendant’s claim
under the standard announced in Bruen. Consistent
with other state and federal appellate courts,16 we conclude that it is necessary to remand these cases to the
trial court to give the parties the opportunity to develop
the evidentiary record and to allow the court to consider
the defendant’s claim under Bruen in the first instance.17
16
See, e.g., Atkinson v. Garland, 70 F.4th 1018, 1020, 1022 (7th Cir. 2023)
(‘‘the best course is to remand to allow the district court to undertake the
Bruen analysis in the first instance’’ and to allow ‘‘proper, fulsome analysis
of the historical tradition’’); Duncan v. Bonta, 49 F.4th 1228, 1231 (9th Cir.
2022) (following remand from United States Supreme Court, remanding case
to District Court for further proceedings consistent with Bruen); Oakland
Tactical Supply, LLC v. Howell Township, Docket No. 21-1244, 2022 WL
3137711, *2 (6th Cir. August 5, 2022) (remanding case to District Court for
further proceedings because appellate court was ‘‘unable to apply [the
Bruen] standard based on the record and arguments currently before [it]’’),
aff’d, Docket No. 18-cv-13443, 2023 WL 2074298 (E.D. Mich. February 17,
2023), aff’d, 103 F. 4th 1186 (6th Cir. 2024), petition for cert. filed (U.S.
August 20, 2024)(No. 24-178); Sibley v. Watches, Docket No. 21-1986-cv, 2022
WL 2824268, *1 (2d Cir. July 20, 2022) (‘‘[w]e remand the case to the District
Court to consider in the first instance the impact, if any, of Bruen on
[the plaintiff’s] claims’’), dismissed, Docket No. 19-CV-6517-FPG, 2024 WL
1157047 (W.D.N.Y. March 18, 2024), appeal filed (2d Cir. April 4, 2024) (No.
24-855); Ward v. United States, 318 A.3d 520, 533 (D.C. 2024) (‘‘whether the
methodology laid out in Bruen leads to the conclusion that [the defendant’s]
conviction violated the [s]econd [a]mendment . . . is a question for the
trial court to consider in the first instance, after the parties have been
allowed to submit evidence and legal arguments’’); People v. Olson, Docket
No. D082081, 2024 WL 2122948, *4 (Cal. App. May 13, 2024) (‘‘[u]ltimately,
the trial court is best suited to engage in the analysis Bruen requires, assisted
by a record replete with relevant factual and historical evidence offered by
the parties’’), review denied, California Supreme Court, Docket No. S285336
(July 29, 2024); State v. Philpotts, Docket No. 107374, 2023 WL 408984, *1
(Ohio App. January 26, 2023) (remanding case to trial court to allow parties
to develop record and to allow trial court to apply ‘‘correct burden of proof
and standard of review as set forth in Bruen’’); see also Matter of State for
Fox, Docket Nos. A-3418-21 and A-3419-21, 2024 WL 2842238, *7 (N.J. App.
Div. June 5, 2024) (declining to consider second amendment claims raised
for first time on appeal and remanding case to allow parties to develop
record and to permit trial court to consider those claims under Bruen in
first instance).
17
The present cases are distinguishable from several cases in which appellate courts have decided post-Bruen second amendment claims in the first
instance on appeal without the benefit of the trial court’s application of the
Bruen test. See, e.g., Maryland Shall Issue, Inc. v. Moore, 86 F.4th 1038,
1043 (4th Cir. 2023) (there was ‘‘little room for debate’’ as to whether
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State v. Giannone
During oral argument before this court, both parties’
counsel, although preferring that we resolve the merits
of the defendant’s constitutional claims, acknowledged
that a remand might be necessary. In particular, the
defendant’s counsel argued that we can resolve the
present appeal by relying on ‘‘legislative facts’’ relevant
to whether the items at issue constitute ‘‘arms’’ under
the second amendment, such as the Second Circuit’s
finding in New York State Rifle & Pistol Assn., Inc.
v. Cuomo, supra,
804 F.3d 255, that ‘‘Americans own
millions’’ of assault weapons, and by reviewing legislative history and analogous historical statutes. Counsel
stated, however, that, if we find those legislative facts
insufficient, then a remand would be appropriate. Similarly, the state’s attorney argued that we can resolve this
appeal by adopting the factual findings and reasoning of
other courts that have concluded that assault weapons,
including AR-15 style rifles, large capacity magazines,
handguns were protected ‘‘arms’’), aff’d, Docket Nos. 21-2017 and 21-2053,
2024 WL 3908548 (4th Cir. August 23, 2024); Teter v. Lopez,
76 F.4th 938,
946–47 and n.6 (9th Cir. 2023) (presumption in favor of remand on basis of
intervening change in law did not apply because ‘‘the historical research
required under Bruen involves issues of so-called legislative facts . . .
rather than adjudicative facts,’’ state ‘‘already had a full opportunity to put
forward a [factual] record as to why butterfly knives should be considered
to be dangerous and unusual’’ under Heller, and, even if presumption in
favor of remand applied, court could ‘‘confidently decide [the issue] [itself]’’
because state ‘‘ha[d] never cited an on-point historical analogue to [the
challenged statute] even after having an opportunity to do so before both
motions and merits panels’’ (internal quotation marks omitted)), vacated
and reh’g en banc granted, 93 F.4th 1150 (9th Cir. 2024); Range v. Attorney
General, 69 F.4th 96, 103 (3d Cir. 2023) (conduct of possessing rifle and
shotgun for hunting and self-defense tracked constitutional right defined
by Heller), vacated sub nom. Garland v. Range, Docket No. 23-374, 2024
WL 3259661 (U.S. July 2, 2024); United States v. Rahimi,
61 F.4th 443, 454
(5th Cir. 2023) (possession of pistol and rifle ‘‘easily [fell] within the purview
of the [s]econd [a]mendment,’’ and it was ‘‘undisputed that the types of
firearms that [the defendant] possessed [were] in common use, such that
they [fell] within the scope of the amendment’’ (internal quotation marks
omitted)), rev’d on other grounds, U.S. , 144 S. Ct. 1889,
219 L. Ed.
2d 351 (2024); Wade v. University of Michigan, Docket No. 330555,
2023
WL 4670440, *8 (Mich. App. July 20, 2023) (court could easily conclude
that handgun was ‘‘in common use’’ by citing Bruen (internal quotation
marks omitted)).
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State v. Giannone
and silencers are not ‘‘arms’’ protected by the second
amendment and that prohibitions similar to those at
issue in the present cases are consistent with our country’s historical tradition of firearm regulation. Specifically, in its brief to this court, the state asks us to
adopt other courts’ findings, first, as to the function
and purpose of silencers and large capacity magazines,
and to conclude that both are ‘‘firearm accessories’’
unnecessary to the use of a firearm, rather than bearable
arms protected by the second amendment. The state
also asks us to adopt other courts’ findings as to the
commonality, dangerousness, and militaristic character
of AR-15 style rifles, large capacity magazines, and
silencers, and conclude that they are not protected arms
because they are ‘‘not commonly used or particularly
suitable for [civilian] self-defense’’ or ‘‘have uniquely
dangerous properties that are more properly suited for
military use.’’ (Internal quotation marks omitted.) Additionally, the state urges us to adopt the historical analyses of other courts and to conclude that the statutes
under which the defendant was convicted have relevant
historical analogues that support their constitutionality.
Given that each party asks us to accept as true certain
proposed facts, we find that the application of Bruen
to the conduct at issue in the present cases involves
disputed factual questions that must be resolved by
the trial court, before which the parties can present
evidence that ‘‘can be explained through expert testimony and tested through cross-examination.’’ State v.
Edwards, 314 Conn. 465, 481,
102 A.3d 52 (2014); see
also Oregon Firearms Federation v. Kotek, 682 F. Supp.
3d 874, 886 n.2 (D. Or. 2023) (declining to consider
‘‘legislative fact’’ exhibits offered by plaintiffs because
exhibits addressed adjudicative facts, that is, ‘‘factual
questions that [the trial court] must answer, including
the commonality of [large capacity magazines], their
use by ordinary citizens, and the relevancy of certain
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State v. Giannone
historical firearms regulations,’’ so that court could
‘‘adequately assess issues of credibility or bias’’), appeal
filed sub nom. Fitz v. Rosenblum (9th Cir. July 17, 2023)
(No. 23-35478), and appeal filed sub nom. Azzopardi
v. Rosenblum (9th Cir. July 17, 2023) (No. 23-35479).18
Moreover, because the state’s brief fails to engage in
any historical analysis beyond citing such analyses from
other courts, we find that ‘‘[t]he parties’ briefing on
appeal only scratches the surface of the historical analysis now required by Bruen.’’ Atkinson v. Garland, 70
F.4th 1018, 1020 (7th Cir. 2023). Bruen instructs that
courts ‘‘are not obliged to sift the historical materials
for evidence to sustain [a] statute’’; New York State
Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 70;
rather, pursuant to the principle of party presentation,
courts are ‘‘entitled to decide a [second amendment]
case based on the historical record compiled by the
parties.’’ Id., 26 n.6. Accordingly, we decline to resolve
the present appeal by applying other courts’ factual
findings and sifting through historical materials as a
substitute for the development of an evidentiary record
compiled by the parties, which we find is necessary to
conduct the analysis that Bruen requires.19 We therefore
18
We note that the court in Kotek mentioned that ‘‘legislative facts are
often considered by appellate courts deciding [s]econd [a]mendment challenges, see Jones v. Bonta, 34 F.4th 704, 726 n.24 (9th Cir. 2022), vacated,
47 F.4th 1124 . . . .’’ Oregon Firearms Federation v. Kotek, supra,
682 F.
Supp. 3d 886 n.2. In Bonta, the United States Court of Appeals for the Ninth
Circuit considered legislative facts pertaining to the efficacy of nonsemiautomatic rifles, rimfire rifles, and shotguns for the purpose of self-defense,
despite the plaintiffs’ failure to submit those facts below. See Jones v.
Bonta, supra, 725–26 and n.24. The court considered those facts, however,
to evaluate the severity of the burden on the second amendment right of
home self-defense in order to determine the appropriate level of scrutiny
to apply under the second step of the pre-Bruen test. See id., 726. Moreover,
the defendants did not contest the legislative facts presented by the plaintiffs.
Id., 726 n.24. Accordingly, Jones v.
Bonta, supra, 725–26, does not support
an appellate court’s de novo resolution of disputed factual questions pertinent to Bruen’s threshold inquiry of whether the conduct at issue is protected
by the second amendment.
19
See, e.g., Oregon Firearms Federation v. Kotek, supra, 682 F. Supp. 3d
885, 888–89 (court held weeklong bench trial to resolve ‘‘disputed issues of
fact involving whether [large capacity magazine restrictions] prohibit[ed]
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State v. Giannone
remand these cases to the trial court for reconsideration
of the defendant’s motions to dismiss and to suppress
under Bruen.
II
On remand, the trial court must consider evidence
presented by the parties and make factual findings consistent with the standard set forth in Bruen.20 We recognize, however, that Bruen left several questions unanswered as to how to properly conduct its text and
conduct covered by the plain text of the [s]econd [a]mendment, such as
whether [large capacity magazines] are in common use today for self-defense
by law-abiding citizens with ordinary self-defense needs . . . [and] regarding the historical record that required [the trial court] to assess witness
credibility and bias,’’ resulting in culmination of ‘‘testimony from twenty
witnesses’’ and ‘‘more than 100 exhibits’’ (citation omitted; internal quotation
marks omitted)); see also United States v. Daniels, 77 F.4th 337, 361 (5th Cir.
2023) (Higginson, J., concurring) (reading Bruen as requiring ‘‘evidentiary
inquiry first . . . conducted in courts of original jurisdiction, subject to
party presentation principles, aided by discovery and cross-examination and
with authority to solicit expert opinion’’), vacated, U.S. , 144 S. Ct.
2707, L. Ed. 2d (2024).
But see Bevis v. Naperville, 85 F.4th 1175, 1195–96 (7th Cir. 2023) (relying,
in part, on findings in Maryland Shall Issue, Inc. v. Moore, 353 F. Supp. 3d
400 (D. Md. 2018), aff’d sub nom. Maryland Shall Issue, Inc. v. Hogan,
963
F.3d 356 (4th Cir. 2020), cert. denied, U.S. ,
141 S. Ct. 2595,
209 L.
Ed. 2d 731 (2021), and Kolbe v. Hogan,
849 F.3d 114 (2017) (overruled in
part by New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1,
142
S. Ct. 2111,
213 L. Ed. 2d 387 (2022)), cert. denied,
583 U.S. 1007,
138 S. Ct.
469,
199 L. Ed. 2d 374 (2017), as to similarities between AR-15 rifle and M-
16 rifle for conclusion that AR-15 is not protected by second amendment,
and plaintiffs therefore failed to show likelihood of success on merits for
purposes of motion for preliminary injunction), cert. denied sub nom. Harrel
v. Raoul, U.S. , 144 S. Ct. 2491, L. Ed. 2d (2024)); People v.
Jimenez, Docket No. B323963, 2023 WL 8904157, *10 (Cal. App. December
27, 2023) (in relation to defendant’s second amendment claim raised for
first time on appeal, without mention of evidentiary hearing or any evidence
presented by parties as to nature of firearm at issue, court relied on facts
as stated in Kolbe v. Hogan, supra, 144, regarding features of semiautomatic
centerfire rifle to support its own conclusion that assault weapons prohibited
by California statute were ‘‘most useful in military service’’), review denied,
California Supreme Court, Docket No. S283546 (March 12, 2024).
20
Additionally, the parties agreed, during oral argument before this court,
that they would not be opposed to the participation of amici curiae, including
the attorney general, on remand so long as both parties have the opportunity
to respond to amici briefs. ‘‘[T]he fact, extent and manner of an amicus
curiae’s participation is entirely within the court’s discretion and an amicus
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State v. Giannone
history test, resulting in some confusion and divergent
approaches among courts. See, e.g., United States v.
Daniels, 77 F.4th 337, 358 (5th Cir. 2023) (Higginson,
J., concurring) (It ‘‘has become increasingly apparent
. . . that courts, operating in good faith, are struggling
at every stage of the Bruen inquiry. Those struggles
encompass numerous, often dispositive, difficult questions . . . .’’), vacated, U.S. , 144 S. Ct. 2707,
L. Ed. 2d (2024); Barris v. Stroud Township,
310 A.3d 175, 189 (Pa. 2024) (acknowledging ‘‘various
areas of uncertainty in Bruen’s method’’ and ‘‘difficulty
courts are having in applying it consistently’’).21
Understandably, the parties in the present cases take
different positions on what is required at several key
points of the Bruen test, including what showing is
required at the initial plain text inquiry and what makes
curiae may ordinarily be heard only by leave of the court.’’ (Internal quotation
marks omitted.) State v. Ross, 272 Conn. 577, 611,
863 A.2d 654 (2005).
Accordingly, we leave it to the trial court to decide whether to also seek
input from the attorney general, as an amicus or otherwise, and to accept
amici briefs generally to assist with its inquiry on remand.
21
The United States Supreme Court’s recent decision in United States v.
Rahimi, supra,
144 S. Ct. 1889, illustrates that even the members of that
court are having difficulty agreeing on how to apply Bruen. Despite the
near unanimous decision in Rahimi, there were five separate concurring
opinions, in addition to a dissenting opinion. Each separate opinion provided
either a somewhat different, or more nuanced, understanding of Bruen or
a criticism of Bruen’s analytical approach. And, despite the court’s statement
in Bruen that its test requires a ‘‘straightforward historical inquiry’’ involving
‘‘reasoning by analogy—a commonplace task for any lawyer or judge’’; New
York State Rifle & Pistol Assn., Inc. v. Bruen, supra, 597 U.S. 27–28; Justice
Gorsuch acknowledged in his concurrence in Rahimi that ‘‘[d]iscerning
what the original meaning of the [c]onstitution requires in this or that case
may sometimes be difficult’’ and that ‘‘reasonable minds can disagree [on]
whether [a statute] is analogous to past practices originally understood to
fall outside the [s]econd [a]mendment’s scope . . . .’’ United States v. Rah-
imi, supra, 1909 (Gorsuch, J., concurring). In fact, Justice Thomas, the
author of the majority opinion in Bruen, was the lone dissenter in Rahimi
because he believed that the majority improperly applied the Bruen analysis.
See id., 1941 (Thomas, J., dissenting) (majority’s ‘‘piecemeal approach [to the
historical analysis] is not what the [s]econd [a]mendment or our precedents
countenance’’). Consequently, it is hardly surprising that other courts have
struggled with how to properly apply Bruen.
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State v. Giannone
a historical analogue ‘‘sufficiently analogous.’’ These
are among the numerous questions about Bruen’s methodology that Justice Jackson recently observed remain
‘‘unresolved’’ following the Supreme Court’s recent
decision in United States v. Rahimi, supra,
144 S. Ct.
1929 (Jackson, J., concurring). Because the resolution
of these legal questions will frame the trial court’s analysis of the defendant’s motions on remand, we provide
some guidance on these points based on Bruen, Heller,
and lower court decisions applying those cases. See
Sullivan v. Metro-North Commuter Railroad Co., 292
Conn. 150, 164,
971 A.2d 676 (2009) (‘‘[b]ecause of our
conclusion that this case must be remanded for a new
trial, it is appropriate for us to give guidance on issues
that are likely to recur on retrial’’); see also Atkinson
v. Garland, supra, 70 F.4th 1023–24 (setting forth questions for trial court to consider on remand to focus
analysis under Bruen); Ward v. United States, 318 A.3d
520, 533 (D.C. 2024) (‘‘given the novelty of [Bruen’s]
methodology . . . identify[ing] key steps and considerations’’ of that methodology ‘‘to limit the possibility of
a further, avoidable remand’’).
In short, we conclude that Bruen requires the following showing in second amendment cases.22 The initial
22
The defendant notes in his principal brief on appeal that he argued
before the trial court ‘‘that his actions were protected under the second
amendment [to the federal constitution] and article first, § 15, of the Connecticut constitution.’’ (Emphasis added.) The only further discussion of the
state constitution in his brief is limited to recognizing that ‘‘this court has
not yet interpreted our state constitution as granting broader rights than
the second amendment. Instead, Connecticut has traditionally reviewed
challenges under this provision through a balancing test . . . . A balancing
test was rejected by Bruen as inconsistent with the second amendment.’’
(Citation omitted.) ‘‘Because the [defendant has] furnished no reason why
we should interpret our state constitutional provision differently than its
federal counterpart, we construe the provisions identically for the purposes
of this case. Cf. State v. Barnes, 232 Conn. 740, 744 n.4,
657 A.2d 611 (1995)
(refusing to entertain state constitutional claim where party failed to provide
independent analysis of state constitutional provision at issue) . . . .’’ (Citations omitted.) Benjamin v. Bailey, supra,
234 Conn. 481 n.14.
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State v. Giannone
step requires that the defendant, as the party challenging the statutes at issue in the present cases, show, by
a preponderance of the evidence, that his conduct falls
within the plain text of the second amendment, i.e.,
that the items at issue, first, are ‘‘arms,’’ and second,
are in common use or typically possessed for lawful
purposes like self-defense. See New York State Rifle &
Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 32 (noting,
in relation to whether second amendment’s plain text
protected carrying handguns publicly for self-defense,
that it was undisputed ‘‘that handguns are weapons in
common use today for self-defense’’ (internal quotation
marks omitted)); District of Columbia v. Heller, supra,
554 U.S. 625, 627 (second amendment protects weapons
‘‘in common use at the time’’ and ‘‘not . . . those weapons not typically possessed by law-abiding citizens for
lawful purposes’’ (internal quotation marks omitted)).
If the defendant makes the necessary threshold showing
as to any of the firearms or related components at
issue, then the plain text of the second amendment
‘‘presumptively protects’’ the defendant’s right to keep
and bear that firearm or related component. New York
State Rifle & Pistol Assn., Inc. v. Bruen, supra, 24.
The second step then requires the state to affirmatively
prove, by presenting ‘‘relevantly similar’’ historical analogues, that its regulation of the protected ‘‘arm’’ is
nonetheless ‘‘consistent with the [n]ation’s historical
tradition of firearm regulation’’ and is, therefore, constitutional. Id., 24, 29. We address each step in greater
detail.
A
As to Bruen’s first step, although the court in Heller
initially stated that ‘‘the [s]econd [a]mendment extends,
prima facie, to all instruments that constitute bearable
arms’’; (emphasis added) District of Columbia v.
Heller, supra,
554 U.S. 582; the court nonetheless made
clear that ‘‘the [s]econd [a]mendment right, whatever
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State v. Giannone
its nature, extends only to certain types of weapons.’’
(Emphasis added.) Id., 623. Thus, Bruen’s threshold
inquiry—whether the individual’s conduct falls within
the second amendment’s plain text—necessarily
requires a court to consider whether the item that the
individual seeks to ‘‘keep’’ or ‘‘bear’’ is an ‘‘arm’’ that
is entitled to second amendment protection.
The state concedes that an AR-15 style rifle is an
‘‘arm,’’ and disputes neither that the defendant is one
of ‘‘the people’’ protected by the second amendment
nor that the defendant’s conduct in relation to the weapons at issue is covered by the second amendment. See
New York State Rifle & Pistol Assn., Inc. v. Bruen,
supra, 597 U.S. 31–32 (in relation to first step of Bruen
test, noting that ‘‘[i]t is undisputed that [the] petitioners
. . . two ordinary, law-abiding, adult citizens—are part
of ‘the people’ whom the [s]econd [a]mendment protects’’ and considering ‘‘whether the plain text of the
[s]econd [a]mendment protects [the petitioners’] proposed course of conduct—carrying handguns publicly
for self-defense’’).23 Moreover, neither party disputes
that the defendant bears the burden at step one to show
that the silencers and large capacity magazines that
he possessed are ‘‘arms.’’24 Nevertheless, the parties
disagree on (1) whether a firearm component such as
23
See also United States v. Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023)
(‘‘Bruen step one involves a threshold inquiry’’ into ‘‘whether the challenger
is part of the people whom the [s]econd [a]mendment protects, whether
the weapon at issue is in common use today for self-defense, and whether
the proposed course of conduct falls within the [s]econd [a]mendment’’
(internal quotation marks omitted)). But see United States v. Pierret-Mercedes, Docket No. CR 22-430 (ADC), 2024 WL 1672034, *5 (D. Puerto Rico
April 18, 2024) (‘‘[t]here is a divergence of opinion in the federal courts on
whether any analysis on a person’s inclusion in ‘the people’ is necessary to
evaluate constitutional challenges under the [s]econd [a]mendment’’).
24
The United States Supreme Court was silent on the issue of who carries
the burden of making the threshold showing at Bruen’s first step. See Barris
v. Stroud Township, supra,
310 A.3d 187 (although Bruen left ‘‘no room
to doubt that the government shoulders the burden once the history-andtradition test is triggered, the [United States Supreme] Court said nothing
about who bears the initial burden to show the plain text covers [the]
individual’s conduct’’ (internal quotation marks omitted)). In the present
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State v. Giannone
a silencer or large capacity magazine is an ‘‘arm’’ within
the plain text of the second amendment, (2) whether
step one of the Bruen test requires the defendant to
show only that the firearms and firearm components
at issue are ‘‘arms,’’ or that the defendant also must
cases, we conclude, and the parties agree, that the defendant, as the party
challenging the statutes at issue, bears the burden to make that threshold
showing. That approach is consistent with not only a majority of the courts
that have expressly decided the issue or implicitly assigned the burden to
one party at step one; see, e.g., Oakland Tactical Supply, LLC v. Howell
Township, 103 F.4th 1186, 1197–98 (6th Cir. 2024), petition for cert. filed
(U.S. August 20, 2024) (No. 24-178); Maryland Shall Issue, Inc. v. Moore,
86 F.4th 1038, 1042 (4th Cir. 2023), aff’d, Docket Nos. 21-2017 and 21-2053,
2024 WL 3908548 (4th Cir. August 23, 2024); National Assn. for Gun Rights
v. Lamont, 685 F. Supp. 3d 63, 89 (D. Conn. 2023); Oregon Firearms Federation v. Kotek, supra,
682 F. Supp. 3d 888; Hartford v. Ferguson,
676 F. Supp.
3d 897, 903–904 (W.D. Wn. 2023); Delaware State Sportsmen’s Assn., Inc.
v. Delaware Dept. of Safety & Homeland Security, 664 F. Supp. 3d 584, 591
(D. Del. 2023), aff’d, 108 F.4th 194 (3d Cir. 2024); Ocean State Tactical, LLC
v. Rhode Island, 646 F. Supp. 3d 368, 377 (D.R.I. 2022), aff’d,
95 F.4th 38
(1st Cir. 2024), petition for cert. filed (U.S. August 2, 2024) (No. 24-131);
People v. Leedy, Docket No. C098151, 2024 WL 828255, *3 (Cal. App. February
28, 2024), review denied, California Supreme Court, Docket No. S284349
(May 15, 2024); People v. Smith, Docket No. 2-22-0340, 2023 WL 8436305,
*11 (Ill. App. December 5, 2023); but also with Bruen’s suggestion that its
test involves burden-shifting. In Bruen, ‘‘[t]he Supreme Court explicitly
states that ‘when the [s]econd [a]mendment’s plain text covers an individual’s conduct . . . the government must then justify its regulation . . . .’ ’’
(Emphasis in original.) Oregon Firearms Federation v. Kotek, supra, 888
n.4. ‘‘This Supreme Court language strongly suggests that the burden shifts
to the government only after the [party challenging the regulation has] shown
that the [regulated] conduct is covered by the plain text of the [s]econd
[a]mendment.’’ Id.; see also National Assn. for Gun Rights v. Lamont, supra,
88 (‘‘Bruen’s mandate provides that if the [s]econd [a]mendment’s plain text
creates the presumption, then the government must justify its regulation’’
(emphasis in original; internal quotation marks omitted)).
Additionally, we find it unlikely that Bruen assigns no burden whatsoever
to the challenger. But see Bevis v. Naperville, 85 F.4th 1175, 1209 (7th Cir.
2023) (Brennan, J., dissenting) (‘‘The government parties . . . incorrectly
attempt to place a burden on the [party challenging the regulation] to show
that the plain text of ‘[a]rms’ includes the banned firearms. Bruen does not
say that. Instead, Bruen states that when the [s]econd [a]mendment’s text
covers an individual’s conduct, the [c]onstitution presumptively protects
it.’’), cert. denied sub nom. Harrel v. Raoul, U.S. , 144 S. Ct. 2491,
L. Ed. 2d (2024); Teter v. Lopez, 76 F.4th 938, 948–50 (9th Cir.
2023) (considering threshold inquiry under Bruen without assigning step
one burden to either party, thus placing no burden on challenger), vacated
and reh’g en banc granted, 93 F.4th 1150 (2024).
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State v. Giannone
show that those arms are ‘‘in common use’’ or ‘‘typically
possessed by law-abiding citizens for lawful purposes’’
and are not ‘‘dangerous and unusual’’ weapons, and (3)
how a court determines whether an arm is ‘‘in common
use’’ or ‘‘dangerous and unusual.’’ Thus, for purposes
of applying the first step of the Bruen test in the present
cases, we provide some guidance to assist the trial court
in resolving these difficult questions. In doing so, we
note that, because the defendant raises as applied challenges to the statutes at issue, he must satisfy the threshold inquiry only as to the AR-15 style rifles,25 silencers,
and large capacity magazines that he possessed or sold,
rather than as to all weapons prohibited by those statutes. See State v. Long, 268 Conn. 508, 522 n.21,
847
A.2d 862 (facial challenge means claim that law is ‘‘incapable of any valid application’’ and, unlike as applied
challenge, ‘‘is not dependent on the facts of a particular
case’’ (internal quotation marks omitted)), cert. denied,
543 U.S. 969,
125 S. Ct. 424,
160 L. Ed. 2d 340 (2004).
As to each of the statutes at issue, if the defendant fails
to satisfy his initial burden, then the statute stands
because the regulated conduct falls outside of the second amendment’s scope.
1
First, the United States Supreme Court has not yet
squarely addressed whether firearm components qualify as ‘‘arms’’ within the meaning of the second amendment’s plain text. We nonetheless conclude that Bruen
25
The record does not consistently identify the type of firearms that the
defendant was convicted of selling. The arrest warrant application identifies
the firearms both as ‘‘AR-15 style semi-automatic .223 caliber assault rifle[s]’’
and ‘‘AR-15 assault rifles.’’ During oral argument before this court, counsel
for the defendant indicated that the defendant had conceded that the rifles
at issue were ‘‘assault weapons’’ as that term is defined in General Statutes
§ 53-202a. Given that the statutory definition of ‘‘assault weapon’’ encompasses numerous specified semiautomatic firearms, including but not limited
to the AR-15, counsel for the defendant also acknowledged that additional
fact-finding may be necessary on remand to determine the specific type of
rifles at issue for the purposes of applying Bruen.
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State v. Giannone
and Heller support the idea that, like firearms, not all
firearm components are protected by the second
amendment; rather, the right to keep and bear arms
includes the right to keep and bear components that
are necessary to effectively use those arms.
Heller defined ‘‘arms’’ as ‘‘[w]eapons of offence’’ that
can be used to ‘‘cast at or strike another.’’ (Internal
quotation marks omitted.) District of Columbia v.
Heller, supra,
554 U.S. 581. Some courts have concluded
that certain firearm components are not ‘‘arms’’ because
they do not independently meet that definition. See, e.g.,
Firearms Regulatory Accountability Coalition, Inc. v.
Garland, 691 F. Supp. 3d 1043, 1053 (D.N.D. 2023) (‘‘a
stabilizing brace, like a silencer, cannot cause harm on
its own and is not a bearable arm which would implicate
[s]econd [a]mendment protections’’), rev’d on other
grounds, 112 F.4th 507 (2024); United States v. Cooperman, Docket No. 22-CR-146,
2023 WL 4762710, *1
(N.D. Ill. July 26, 2023) (‘‘as a firearm accessory, silencers are not weapons and therefore cannot be ‘bearable
arms’ protected by the [s]econd [a]mendment’’). Other
courts, however, have applied a test that asks whether
the firearm component is ‘‘necessary’’ or ‘‘essential’’ to
operate a firearm as intended. See, e.g., United States
v. Berger, Docket No. 5:22-cr-00033, 2024 WL 449247,
*17 (E.D. Pa. February 6, 2024) (‘‘if there is a line of
demarcation between firearm components entitled to
[s]econd [a]mendment protection as bearable ‘[a]rms,’
determining which components are necessary to the
operation of the firearm appears to constitute a reasonable limitation on the scope of the [s]econd [a]mendment’’); Capen v. Campbell, Docket No. CV 22-11431-
FDS, 2023 WL 8851005, *17 (D. Mass. December 21,
2023) (‘‘some accessories, such as silencers, do not
affect the essential operation of a weapon and so do
not fall within the scope of the [s]econd [a]mendment’s
protection’’), appeal filed, 2023 WL 8851005 (1st Cir.
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State v. Giannone
January 17, 2024) (No. 24-1061); Duncan v. Bonta, 695
F. Supp. 3d 1206, 1224 (S.D. Cal. 2023) (magazine falls
within meaning of ‘‘arms’’ because it ‘‘is an essential
component without which a semiautomatic firearm is
useless for self-defense’’), appeal filed (9th Cir. September 25, 2023) (No. 23-55805); National Assn. for Gun
Rights v. Lamont, supra, 685 F. Supp. 3d 93 (D. Conn.
2023) (‘‘components of firearms that are necessary to
their operation, such as ammunition, are covered by
the [s]econd [a]mendment’’);26 United States v. Saleem,
659 F. Supp. 3d 683, 697–98 (W.D.N.C. 2023) (silencers
are not ‘‘necessary to render a firearm functional’’ or
to ‘‘safely and effectively’’ use a firearm), appeal filed
(4th Cir. November 15, 2023) (No. 23-4693).27 The ‘‘necessary’’ or ‘‘essential’’ test finds substantial support in
Heller and Bruen and, therefore, is the one that we are
compelled to follow.
26
In National Assn. for Gun Rights v. Lamont, supra, 685 F. Supp. 3d
94, the court also phrased the relevant inquiry as whether a large capacity
magazine is ‘‘a modern instrument’’ that merely ‘‘facilitate[s] armed self-defense.’’ (Emphasis added; internal quotation marks omitted.); see also
New York State Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 28
(‘‘general definition [of ‘arms’] covers modern instruments that facilitate
armed self-defense’’). We are not persuaded that this is the proper inquiry
because ‘‘it would seemingly open the door to significantly broader [s]econd
[a]mendment protections for firearm components’’; United States v. Berger,
supra, 2024 WL 449247, *17 n.19; and perhaps even other unrelated items,
than the court in Bruen likely intended by using that phrase in passing. See id.
(interpreting ‘‘facilitate’’ to mean ‘‘[t]o make the occurrence of (something)
easier; to render less difficult’’ (internal quotation marks omitted)).
27
See also Oregon Firearms Federation v. Kotek, supra, 682 F. Supp. 3d
911–13 (although ‘‘courts have found that the [s]econd [a]mendment protects
ancillary rights necessary to the realization of the core right to possess a
firearm for self-defense,’’ and that ‘‘magazines are often necessary to render
certain firearms operable,’’ large capacity magazines specifically are ‘‘never
necessary to render firearms operable’’ and, therefore, ‘‘are not bearable
arms’’ (internal quotation marks omitted)); Hanson v. District of Columbia,
671 F. Supp. 3d 1, 10 (D.D.C. 2023) (following persuasive reasoning of United
States Court of Appeals for Third Circuit to conclude that large capacity
magazines ‘‘are arms under the [s]econd [a]mendment because magazines
feed ammunition into certain guns, and ammunition is necessary for such
a gun to function as intended’’ (emphasis in original; internal quotation
marks omitted)), appeal filed (D.C. Cir. May 17, 2023) (No. 23-7061).
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State v. Giannone
In Heller, the court held that the District of Columbia’s ‘‘requirement (as applied to [the] respondent’s
handgun) that firearms in the home be rendered and
kept inoperable at all times’’ was unconstitutional
because it made ‘‘it impossible for citizens to use [those
firearms] for the core lawful purpose of self-defense
. . . .’’ District of Columbia v. Heller, supra,
554 U.S.
630. In other words, Heller recognized that the right to
keep and bear arms includes a right to use those arms
and to keep them in operable condition ready for such
use. See id., 617–18 (quoting T. Cooley, Treatise on
Constitutional Limitations (1868) p. 271, as example of
post-Civil War commentary interpreting second amendment right, for proposition that ‘‘to bear arms implies
something more than the mere keeping; it implies the
learning to handle and use them in a way that makes
those who keep them ready for their efficient use’’
(internal quotation marks omitted)). Similarly, in
Bruen, the court confirmed that the ‘‘[s]econd [a]mendment protects the possession and use of weapons
. . . .’’ (Emphasis added.) New York State Rifle & Pistol
Assn., Inc. v. Bruen, supra,
597 U.S. 21. Indeed, ‘‘without
this right to use the guaranty would have hardly been
worth the paper it consumed.’’ (Internal quotation
marks omitted.) District of Columbia v. Heller, supra,
609 (quoting J. Tiffany, A Treatise on the Unconstitutionality of American Slavery (1849) pp. 117–18, to illustrate founding era public understanding of second
amendment right). It follows, therefore, that the second
amendment, in addition to protecting arms in common
use today for lawful purposes like self-defense, also
must protect components that are necessary or essential to operate such an arm as intended. See United
States v. Miller, 307 U.S. 174, 180,
59 S. Ct. 816,
83
L. Ed. 1206 (1939) (in New England in 1600s, ‘‘[t]he
possession of arms also implied the possession of
ammunition, and the authorities paid quite as much
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State v. Giannone
attention to the latter as to the former’’ (internal quotation marks omitted)).
Consequently, on remand, the defendant, as a predicate to his constitutional challenges to §§ 53a-211 and
53-202w (c) (2), must prove that the silencers and large
capacity magazines, even if they are not independently
‘‘[w]eapons of offence’’ that can be used to ‘‘cast at
or strike another’’; (internal quotation marks omitted)
District of Columbia v. Heller, supra,
554 U.S. 581;
nonetheless fall within the term ‘‘arms’’ because they
are necessary or essential to effectively operate a constitutionally protected firearm as intended. If the defendant fails to demonstrate that the silencers and large
capacity magazines are necessary or essential to the
effective use of a protected arm, the court’s analysis
as to those instruments ends there and the defendant’s
constitutional challenge fails. If those firearm components do meet that criterion, however, then the court,
for the reasons set forth in part II A 2 of this opinion,
must proceed to consider whether the defendant has
shown that the silencers and large capacity magazines,
as well as the AR-15 style rifles, are in common use
within the meaning of Heller and Bruen.
2
The defendant does not dispute that he has the burden of proving that his conduct is covered by the second
amendment’s plain text. The parties do not agree, however, as to whether the defendant must show only that
the firearms and firearm components at issue are
‘‘arms,’’ or whether he instead bears the additional burden of demonstrating that they are arms in common
use or typically possessed for lawful purposes like self-defense. In other words, ‘‘[d]oes the challenging party
have the burden at step one to show a regulated weapon
is in common use for lawful purposes? Or does the
government have the burden at step two to prove a
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State v. Giannone
negative—the regulated weapon is not in common use
for lawful purposes?’’ (Emphasis omitted.) People v.
Leedy, Docket No. C098151, 2024 WL 828255, *2 (Cal.
App. February 28, 2024), review denied, California
Supreme Court, Docket No. S284349 (May 15, 2024).
As the United States Court of Appeals for the Seventh
Circuit has recognized, ‘‘[t]here is no consensus’’ among
courts on this issue. Bevis v. Naperville, 85 F.4th 1175,
1198 (7th Cir. 2023), cert. denied sub nom. Harrel v.
Raoul, U.S. , 144 S. Ct. 2491, L. Ed. 2d
(2024).
In the present cases, the state, acknowledging that
courts take different positions on whether the common
use and dangerous and unusual analyses inform the
threshold plain text inquiry or the historical inquiry
under Bruen, addresses those issues at both steps of
the analysis in its appellate brief. The defendant asserts,
however, that he does not have a burden to show that
the items at issue are commonly used for self-defense,
typically possessed by law-abiding citizens, or not ‘‘dangerous and unusual.’’ According to the defendant, his
burden at step one is merely to ‘‘assert that his conduct
falls within the plain text of the second amendment,’’
meaning, in the context of these cases, that the items
at issue are ‘‘arms’’ or are ‘‘necessary’’ or ‘‘essential’’ to
the functioning of a protected ‘‘arm.’’ He argues that,
if he satisfies this threshold, the burden then shifts to
the state to show that his conduct falls outside of the
second amendment’s scope. At oral argument before
this court, the defendant’s counsel further argued that
the defendant has the burden at Bruen’s first step to
prove in ‘‘the broadest sense’’ that the items at issue
fall within the scope of the second amendment, and
that the state has the burden to justify any exemptions
to second amendment protection.28 For the following
28
The defendant’s counsel also suggested during oral argument before
this court, however, that the defendant might have the burden of proving
that the items are both commonly owned in the United States and ‘‘used in
a lawful manner.’’
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State v. Giannone
reasons, we conclude that ‘‘common use,’’ along with
the related ‘‘typical possession’’ and ‘‘dangerous and
unusual’’ considerations, are part of Bruen’s first step,
where the party challenging a firearm statute bears the
burden of proof.
One reason that courts frequently cite for placing the
common use inquiry at step one is that the United States
Supreme Court seemingly did so in Bruen. Specifically,
the Supreme Court began its analysis in Bruen by stating: ‘‘It is undisputed that [the] petitioners . . . two
ordinary, law-abiding, adult citizens—are part of ‘the
people’ whom the [s]econd [a]mendment protects. . . .
Nor does any party dispute that handguns are weapons
‘in common use’ today for self-defense. . . . We therefore turn to whether the plain text of the [s]econd
[a]mendment protects [the petitioners’] proposed
course of conduct—carrying handguns publicly for self-defense.’’ (Citations omitted; emphasis added.) New
York State Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 31–32. Several courts view that language as a
command from the Supreme Court to consider common
use in relation to whether the second amendment protects the conduct at issue, rather than in relation to
whether the regulation is consistent with this country’s
history and tradition of firearms regulation. See, e.g.,
United States v. Teston, Docket No. CR-22-1400 JB,
2024 WL 1621512, *19, 21 (D.N.M. April 15, 2024) (‘‘most
federal cases post-Bruen have taken this language as
a command that [the] ‘in common use’ analysis should
be undertaken as part of a court’s step-one, plain-text
analysis under Bruen,’’ and District Court would ‘‘not
presume that the Supreme Court’s approach to the
Bruen analysis . . . [was] careless or casual’’).29 Given
29
See also United States v. Berger, supra, 2024 WL 449247, *3, 6 (‘‘the
[United States Supreme] Court seemingly included the common-use issue
at step one of its clarified [s]econd [a]mendment analysis,’’ and there was
‘‘no reason to believe that this happened accidentally’’); National Assn. for
Gun Rights v. Lamont, supra, 685 F. Supp. 3d 88 (clear that challengers
had burden to make initial showing because Supreme Court ‘‘considered
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State v. Giannone
that Bruen also referenced the popularity of handguns
for self-defense in relation to the second step of its
analysis, however, the court’s passing reference to
‘‘ ‘common use’ ’’ in relation to the plain text inquiry is
not dispositive. New York State Rifle & Pistol Assn.,
Inc. v. Bruen, supra,
597 U.S. 32; see also
id., 47 (‘‘colonial laws prohibit[ing] the carrying of handguns because
they were considered dangerous and unusual weapons
in the 1690s . . . provide no justification for laws
restricting the public carry of weapons that are unquestionably in common use today’’) (internal quotation
marks omitted)).
Nevertheless, in Heller, the Supreme Court used the
phrase ‘‘in common use at the time’’ to define ‘‘the
sorts of weapons protected’’ by the second amendment.
(Internal quotation marks omitted.) District of Columbia v. Heller, supra,
554 U.S. 627. Indeed, in both Heller
and Bruen, the court explained that not all ‘‘[w]eapons
of offence’’ that can be used ‘‘to cast at or strike
another’’; (internal quotation marks omitted) id., 581;
constitute protected ‘‘arms.’’ Although the court in
Heller initially stated that ‘‘the [s]econd [a]mendment
extends, prima facie, to all instruments that constitute
bearable arms’’; (emphasis added) id., 582; the court,
in rejecting Justice Stevens’ argument in his dissenting
opinion that the court’s interpretation of the second
amendment in Heller was inconsistent with the court’s
prior decision in United States v. Miller, supra,
307
U.S. 174, also stated that ‘‘Miller stands only for the
whether handguns were arms that were in common use today for self-defense and whether the plain text of the [s]econd [a]mendment covered
the petitioner’s proposed course of conduct of carrying handguns publicly
for self-defense before shifting the burden to [the] respondents to justify the
regulation’’ (emphasis omitted; internal quotation marks omitted)); People
v. Leedy, supra, 2024 WL 828255, *3 (‘‘the Bruen court covered common
use when discussing the applicability of the [s]econd [a]mendment’s plain
text, not when discussing the historical tradition of firearm regulation’’).
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State v. Giannone
proposition that the [s]econd [a]mendment right, whatever its nature, extends only to certain types of weapons.’’ (Emphasis added.) District of Columbia v. Heller,
supra, 623. In Miller, the Supreme Court upheld a federal prohibition on transporting an unregistered, short-barreled shotgun in interstate commerce, reasoning
that, ‘‘[i]n the absence of any evidence tending to show
that possession or use of a shotgun having a barrel of
less than eighteen inches in length at this time has some
reasonable relationship to the preservation or efficiency
of a well regulated militia, we cannot say that the [s]econd [a]mendment guarantees the right to keep and bear
such an instrument. Certainly, it is not within judicial
notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the
common defense.’’ (Internal quotation marks omitted.)
United States v. Miller, supra, 175, 178.
In Heller, the court rejected Justice Stevens’ argument in his dissenting opinion that Miller’s ‘‘ ‘ordinary
military equipment’ ’’ language meant that ‘‘only those
weapons useful in warfare are protected. That would
be a startling reading of the opinion, since it would mean
that . . . restrictions on machineguns . . . might be
unconstitutional, machineguns being useful in warfare
in 1939.’’ District of Columbia v. Heller, supra,
554 U.S.
624. Instead, the court stated that ‘‘Miller’s ordinary
military equipment language must be read in tandem
with what comes after: [O]rdinarily when called for
[militia] service [able-bodied] men were expected to
appear bearing arms supplied by themselves and of the
kind in common use at the time. . . . The traditional
militia was formed from a pool of men bringing arms
in common use at the time for lawful purposes like
self-defense. In the colonial and revolutionary war era,
[small-arms] weapons used by militiamen and weapons
used in defense of person and home were one and the
same. . . . We therefore read Miller to say only that
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State v. Giannone
the [s]econd [a]mendment does not protect those weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.
That accords with the historical understanding of the
scope of the right . . . .’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 624–25.
In other words, the court concluded that, under Miller,
the second amendment protects ‘‘the sorts of weapons
. . . in common use at the time’’ and explained that
this is an ‘‘important limitation on the right to keep and
carry arms . . . that . . . is fairly supported by the
historical tradition of prohibiting the carrying of dangerous and unusual weapons.’’ (Citation omitted; internal
quotation marks omitted.) Id., 627. In Bruen, the court
reiterated Heller’s point that ‘‘the [s]econd [a]mendment protects the possession and use of weapons that
are in common use at the time.’’ (Internal quotation
marks omitted.) New York State Rifle & Pistol Assn.,
Inc. v. Bruen, supra,
597 U.S. 21.
Further, the court in Heller strongly suggested, consistent with the common use limitation, that weapons
that are ‘‘most useful in military service—M-16 rifles30
and the like—may be banned’’; (footnote added) District of Columbia v. Heller, supra,
554 U.S. 627; without
violating the second amendment. See id. (immediately
following discussion of common use limitation, court
rejected argument ‘‘that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the [s]econd [a]mendment right is completely detached from the prefatory clause’’). As the
30
The United States Supreme Court has described the M-16 as ‘‘a selective
fire rifle that allows the operator, by rotating a selector switch, to choose
semiautomatic or automatic fire.’’ Staples v. United States, 511 U.S. 600,
603,
114 S. Ct. 1793,
128 L. Ed. 2d 608 (1994). It is a ‘‘standard issue . . .
military service rifle used by the United States Army and other nations’
armed forces . . . .’’ Soto v. Bushmaster Firearms International, LLC, 331
Conn. 53, 70,
202 A.3d 262 (2019), cert. denied sub nom. Remington Arms
Co., LLC v. Soto, U.S. , 140 S. Ct. 513,
205 L. Ed. 2d 317 (2019).
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State v. Giannone
court reiterated, ‘‘the conception of the militia at the
time of the [s]econd [a]mendment’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 militia duty.’’ (Emphasis added.) Id.
Although recognizing that, today, ‘‘a militia, to be as
effective as militias in the 18th century, [may] require
sophisticated arms that are highly unusual in society
at large,’’ the court declined to alter its interpretation
of the second amendment right to account for ‘‘modern
developments [that] have limited the degree of fit
between the prefatory clause and the protected right
. . . .’’ Id., 627–28.
Consequently, the common use analysis informs
whether the conduct at issue is covered by the second
amendment’s plain text and asks whether an instrument, even if it is an ‘‘arm,’’ is the type of arm that is
protected by the second amendment—that is, as Bruen
and Heller instruct, an arm that is commonly used or
typically possessed for lawful purposes like self-defense—or is instead a dangerous and unusual weapon
that falls outside of the second amendment’s scope.
See New York State Rifle & Pistol Assn., Inc. v. Bruen,
supra,
597 U.S. 21; District of Columbia v.
Heller, supra,
554 U.S. 624–27. In other words, because Bruen’s
threshold inquiry as to whether the plain text protects
the conduct at issue necessarily requires courts to interpret the meaning of ‘‘arms’’ in the second amendment,
and because Bruen and Heller make clear that the second amendment protects arms ‘‘in common use at the
time’’; (internal quotation marks omitted) New York
State Rifle & Pistol Assn., Inc. v. Bruen, supra, 21;
District of Columbia v. Heller, supra, 624; it is sensible
to consider common use at Bruen’s first step. See, e.g.,
United States v. Lane, 689 F. Supp. 3d 232, 252 n.22
(E.D. Va. 2023) (‘‘[b]ecause determining which ‘arms’
the amendment covers is a textual matter,’’ and Heller
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State v. Giannone
‘‘explained that the ‘in common use’ label limits ‘the
sorts of weapons protected’ ’’ by the [s]econd [amendment], the ‘‘ ‘common use’ ’’ and ‘‘ ‘dangerous and
unusual’ ’’ issues are ‘‘part of the textual analysis at
Bruen’s step one’’), appeal filed (4th Cir. February 7,
2024) (No. 24-4083).31
Our conclusion finds further support in Heller’s
apparent exclusion of machine guns and short-barreled
shotguns from the class of constitutionally protected
arms. In stating that it would be ‘‘startling’’ if Miller
stood for the proposition that ‘‘only those weapons
useful in warfare are protected . . . since it would
mean that . . . restrictions on machineguns . . .
might be unconstitutional, machineguns being useful
in warfare in 1939,’’ the court suggested that restrictions
on machine guns are constitutional. District of Columbia v. Heller, supra,
554 U.S. 624. The court further
explained, ‘‘Miller’s ordinary military equipment language must be read in tandem with what comes after:
[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at
the time. . . . We therefore read Miller to say only
that the [s]econd [a]mendment does not protect those
31
See also Delaware State Sportsmen’s Assn., Inc. v. Delaware Dept. of
Safety and Homeland Security, 664 F. Supp. 3d 584, 591 (D. Del. 2023)
(textual analysis at step one of Bruen is driven by several key limitations
to scope of second amendment coverage, including that second amendment
extends only to bearable arms in common use today for self-defense and
does not extend to dangerous and unusual weapons), aff’d, 108 F.4th 194
(3d Cir. 2024); People v. Leedy, supra, 2024 WL 828255, *3 (‘‘consistent with
Bruen, Heller suggests that common use is critical to understanding the
types of weapons considered to be bearable ‘[a]rms,’ a textual issue’’); see
also Bevis v. Naperville, supra,
85 F.4th 1193, 1198 (although assuming,
without deciding, that ‘‘common use’’ belongs at step two, considering at
first step of Bruen analysis ‘‘what exactly falls within the scope of ‘bearable’
[a]rms’’ that the court in Heller indicated were, prima facie, ‘‘protected by
the second amendment’’ and concluding that ‘‘the definition of ‘bearable
[a]rms’ extends only to weapons in common use for a lawful purpose’’).
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State v. Giannone
weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Id., 624–25. The court thus
suggested that certain weapons, such as machine guns
and short-barreled shotguns, are categorically excluded
from the second amendment right and that the state
therefore may regulate such weapons, solely on the
ground that they are not in common use or are not
typically possessed by law-abiding citizens for lawful
purposes, rather than on the ground that there are relevantly similar historical analogues restricting the possession of those weapons. Such reasoning supports our
conclusion that the common use analysis informs the
scope of the second amendment right.
Moreover, our conclusion is consistent with that of
a majority of other courts that have decided the issue.32
32
See, e.g., United States v. Veasley, 98 F.4th 906, 910 (8th Cir. 2024),
petition for cert. filed (U.S. July 12, 2024) (No. 24-5089); Antonyuk v. Chiumento, 89 F.4th 271, 304–305 (2d Cir. 2023), vacated sub nom. Antonyuk v.
James, Docket No. 23-910, 2024 WL 3259671 (U.S. July 2, 2024); United
States v. Alaniz, 69 F.4th 1124, 1128 (9th Cir. 2023); United States v. Rahimi,
61 F.4th 443, 454 (5th Cir. 2023), rev’d, U.S. ,
144 S. Ct. 1889,
219 L.
Ed. 2d 351 (2024); United States v. Lightner, Docket No. 8:24-cr-21-WFJCPT,
2024 WL 2882237, *2 (M.D. Fla. June 7, 2024); United States v. Mitchell,
Docket No. 1:24-cr-9, 2024 WL 2272275, *3 (N.D. Ohio May 20, 2024); United
States v. Teston, Docket No. CR 22-1400 JB, 2024 WL 1621512, *18 (D.N.M.
April 15, 2024); Hanson v. District of Columbia, 671 F. Supp. 3d 1, 10–11
(D.D.C. 2023), appeal filed (D.C. Cir. May 17, 2023) (No. 23-7061); Delaware
State Sportsmen’s Assn., Inc. v. Delaware Dept. of Safety & Homeland
Security, 664 F. Supp. 3d 584, 591 (D. Del. 2023), aff’d,
108 F.4th 194 (3d
Cir. 2024); United States v. Saleem, supra, 659 F. Supp. 3d 690; People v.
Leedy, supra, 2024 WL 828255, *2.
At least one court, however, has concluded that the issue of whether a
weapon is in common use or is dangerous and unusual is properly considered
at step two, at which the state bears the burden of proof. See Teter v. Lopez,
76 F.4th 938, 949–50 (9th Cir. 2023) (‘‘Heller itself stated that the relevance
of a weapon’s dangerous and unusual character lies in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons. . . . It did
not say that dangerous and unusual weapons are not arms. Thus, whether
butterfly knives are dangerous and unusual is a contention as to which
Hawaii bears the burden of proof in the second prong of the Bruen analysis.’’
(Citation omitted; emphasis omitted; internal quotation marks omitted.)),
vacated and reh’g en banc granted, 93 F.4th 1150 (9th Cir. 2024).
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State v. Giannone
Although not all of those courts decided which party
bears the burden of proof on the common use issue,33
a majority of courts that have considered common use
at the first step have placed the burden of proof on that
issue on the party challenging the statute at issue.34
It may be argued that Bruen’s first step is purely a
textual inquiry and that the common use limitation,
which is drawn from history and is not expressly contained in the amendment’s plain text, has no place in
that inquiry but, rather, is properly addressed as part
of Bruen’s second step.35 For instance, in a dissenting
Other courts have declined to decide the issue of the placement of the
‘‘common use’’ inquiry altogether. For instance, in Bevis, the Seventh Circuit
defined the step one inquiry as whether the weapons at issue are ‘‘[a]rms
that individual persons are entitled to keep and bear,’’ which, it concluded,
‘‘extend[ed] only to weapons in common use for a lawful purpose.’’ (Internal
quotation marks omitted.) Bevis v. Naperville, supra,
85 F.4th 1192, 1193.
After resolving the appeal at step one of the analysis, however, the court,
turning to the second step ‘‘for the sake of completeness,’’ acknowledged
the lack of consensus on the placement of the ‘‘common use’’ factor and,
despite its initial placement of that factor at the first step, ‘‘assume[d]
(without deciding the question) that this is a step two inquiry, where the
state bears the burden of proof.’’ Id., 1197–98.
33
See, e.g., United States v. Alaniz, 69 F.4th 1124, 1129 (9th Cir. 2023)
(court ‘‘assume[d], without deciding, that step one of the Bruen test [was]
met’’); United States v. Rahimi, 61 F.4th 443, 454 (5th Cir. 2023) (noting
that it was undisputed that pistol and rifle were in common use), rev’d on
other grounds, U.S. , 144 S. Ct. 1889,
219 L. Ed. 2d 351 (2024); Hanson
v. District of Columbia, 671 F. Supp. 3d 1, 10–16 (D.D.C. 2023) (assessing
whether second amendment protects large capacity magazines, including
whether they are ‘‘in common use,’’ without assigning burden of proof on
threshold inquiry to either party), appeal filed (D.C. Cir. May 17, 2023) (No.
23-7061).
34
See, e.g., Vermont Federation of Sportsmen’s Clubs v. Birmingham,
Docket No. 2:23-cv-710, 2024 WL 3466482, *5 (D. Vt. July 18, 2024), appeal
filed, 2024 WL 3466482 (2d Cir. July 31, 2024) (No. 24-2026); United States
v. Myers, Docket No. 3:22-CR-00067-ART-CSD-1, 2024 WL 2924081, *4 (D.
Nev. June 10, 2024); National Assn. for Gun Rights v. Lamont, supra, 685
F. Supp. 3d 88 (D. Conn. 2023); Delaware State Sportsmen’s Assn., Inc. v.
Delaware Dept. of Safety & Homeland Security, 664 F. Supp. 3d 584, 591
(D. Del. 2023), aff’d, 108 F.4th 194 (3d Cir. 2024); Oregon Firearms Federation, Inc. v. Brown,
644 F. Supp. 3d 782, 799 (D. Or. 2022), appeal dismissed,
Docket No. 22-36011, 2022 WL 18956023 (9th Cir. December 12, 2022); People
v. Leedy, supra, 2024 WL 828255, *3.
35
See, e.g., United States v. Teston, Docket No. CR 22-1400 JB, 2024 WL
1621512, *20 (D.N.M. April 15, 2024) (acknowledging criticisms that ‘‘the ‘in
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State v. Giannone
opinion in Bevis v. Naperville, supra,
85 F.4th 1175,
Circuit Judge Brennan asserted that common use is
properly considered at step two because ‘‘the broader
definition of [a]rms . . . should be read as [a]rms—
not [a]rms in common use at the time. . . . The
[Supreme] Court did not say that dangerous and unusual
weapons are not arms. . . . [I]mporting the phrase in
common use to assess whether firearms are [a]rms . . .
improperly restricts the constitutional right. . . . [I]n
common use is a sufficient condition for finding arms
protected under the history and tradition test in Bruen,
not a necessary condition to find them [a]rms.’’ (Citations omitted; emphasis in original; internal quotation
marks omitted.) Id., 1209 (Brennan, J., dissenting).
Judge Brennan further reasoned that the common use
limitation is drawn ‘‘not . . . from a historical understanding of what an [a]rm is’’ but instead from ‘‘the
historical tradition of prohibiting the carrying of dangerous and unusual weapons.’’ (Internal quotation marks
omitted.) Id.
We acknowledge that there is a logical argument to
be made that the common use limitation is part of the
state’s burden at step two. Until the United States
Supreme Court clarifies the Bruen test, however, our
responsibility as a lower court is to apply the Supreme
Court’s precedent as we are best able to understand it.
Our reading of that precedent dictates that the second
amendment’s ‘‘plain text’’ must not be considered in a
vacuum. As the Supreme Court stated in Bruen, ‘‘the
[s]econd [a]mendment’s definition of ‘arms’ is fixed
according to its historical understanding . . . .’’ New
York State Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 28. This is consistent with the idea ‘‘that the
[s]econd [a]mendment . . . codified a pre-existing
right’’ and that its ‘‘very text . . . implicitly recognizes
common use’ question is, itself, rooted in historical inquiry—which makes
step two of the Bruen analysis a better fit for its consideration’’).
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State v. Giannone
the pre-existence of the right and declares only that it
‘shall not be infringed.’ ’’ (Emphasis omitted.) District
of Columbia v. Heller, supra,
554 U.S. 592; see also
id.,
599, 605 (‘‘the [s]econd [a]mendment was not intended
to lay down a novel principl[e] but rather codified a
right inherited from our English ancestors’’ or, in other
words, ‘‘codified venerable, widely understood liberties’’ (internal quotation marks omitted)). Consequently, the second amendment is ‘‘enshrined with the
scope [it was] understood to have when the people
adopted [it].’’ (Internal quotation marks omitted.) New
York State Rifle & Pistol Assn., Inc. v. Bruen, supra,
34; District of Columbia v.
Heller, supra, 634–35. Therefore, although history has a principal role in Bruen’s
second step, the Supreme Court instructs that ‘‘the historical understanding of the scope of the right’’; District
of Columbia v. Heller, supra, 625; also informs the
meaning of the second amendment’s text. That historical understanding, as the Supreme Court explained,
was that the right was not an unlimited one ‘‘to keep
and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’’; New York State
Rifle & Pistol Assn., Inc. v. Bruen, supra, 21; but, rather,
that ‘‘the sorts of weapons protected were those in
common use at the time’’; id., 81 (Kavanaugh, J., concurring); and not those that were ‘‘dangerous and unusual’’;
(internal quotation marks omitted) id., 21; nor those
‘‘not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.’’ District
of Columbia v. Heller, supra, 625.
Last, we also conclude that the common use analysis
at Bruen’s first step incorporates both the ‘‘typical possession’’ and ‘‘dangerous and unusual’’ considerations.
In Heller, the court used those three phrases together
to define the limits on the types of ‘‘arms’’ to which the
second amendment extends. See id., 624–27. Specifically, the court equated ‘‘in common use’’ with ‘‘typically
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State v. Giannone
possessed’’ when it interpreted Miller’s discussion of
the types of weapons that citizens were historically
expected to bear when they appeared for militia service—namely, those ‘‘of the kind in common use at the
time’’—as saying ‘‘only that the [s]econd [a]mendment
does not protect those weapons not typically possessed
by law-abiding citizens for lawful purposes . . . .’’
(Internal quotation marks omitted.) Id., 624–25. The
court confirmed that its interpretation of Miller was in
‘‘[accord] with the historical understanding of the scope
of the right,’’ which was that it ‘‘was not a right to
keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose’’ but, rather, was
limited to weapons ‘‘in common use at the time,’’ which,
in turn, the court found ‘‘fairly supported by the historical tradition of prohibiting the carrying of dangerous
and unusual weapons.’’ (Internal quotation marks omitted.) Id., 626–27. Further, in its summary of that language in Bruen, the court juxtaposed weapons ‘‘in common use at the time’’ with ‘‘dangerous and unusual’’
weapons, suggesting that those phrases are opposite
sides of the same coin: ‘‘[T]he [s]econd [a]mendment
protects only the carrying of weapons that are those
in common use at the time, as opposed to those that
are highly unusual in society at large. . . . Whatever
the likelihood that handguns were considered dangerous and unusual during the colonial period, they are
indisputably in common use for self-defense today.’’
(Citation omitted; internal quotation marks omitted.)
New York State Rifle & Pistol Assn., Inc. v. Bruen,
supra,
597 U.S. 47. Thus, Bruen and Heller suggest that
the ‘‘common use,’’ ‘‘typical possession,’’ and ‘‘dangerous and unusual’’ issues are inextricably intertwined
when assessing whether a weapon is protected under
the second amendment.36 For that reason, we view all
36
We acknowledge that Heller and Bruen do not explicitly state that the
second amendment does not protect dangerous and unusual weapons but,
rather, recognize only that there is a ‘‘historical tradition of prohibiting the
carrying’’ of such weapons. New York State Rifle & Pistol Assn., Inc. v.
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State v. Giannone
three of those phrases as bearing upon the common use
inquiry at Bruen’s first step. Indeed, the considerations
that other courts find relevant to whether a weapon is
in common use often overlap with those that courts
find relevant to whether a weapon is typically possessed
by law-abiding citizens for lawful purposes or is dangerous and unusual. See, e.g., National Assn. for Gun
Rights v. Lamont, supra, 685 F. Supp. 3d 85, 87 (‘‘court
[read] Bruen to abrogate Cuomo to the extent it treated
common use’’ and ‘‘typical possession’’ as distinct
inquiries, and noting that ‘‘there is a degree of overlap
between the analyses for ‘common use,’ ‘typical possession,’ and ‘dangerous and unusual’ in the context of the
[s]econd [a]mendment’’)).37
Therefore, we conclude that, on remand, the defendant bears the burden in the first instance to establish
Bruen, supra,
597 U.S. 21; District of Columbia v.
Heller, supra,
554 U.S.
627. The Supreme Court, however, references that historical tradition only
in an effort to define the types of weapons to which the second amendment
extends. See New York State Rifle & Pistol Assn., Inc. v. Bruen, supra, 21;
District of Columbia v. Heller, supra, 625. Accordingly, since before Bruen,
courts, including our Supreme Court, have interpreted the ‘‘dangerous and
unusual’’ language in Heller as creating an exception to second amendment
protection for dangerous and unusual weapons. See State v. DeCiccio, supra,
315 Conn. 110 (Heller ‘‘held that [the second amendment] does protect the
possession of weapons . . . typically possessed by law-abiding citizens for
lawful purposes . . . and does not protect dangerous and unusual weapons’’ (citation omitted; internal quotation marks omitted)); Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53, 133,
202 A.3d 262 (2019)
(noting in passing that Heller indicated that M-16s and related military grade
weaponry can be banned because second amendment’s protection does
not extend to dangerous and unusual weapons), cert. denied sub nom.
Remington Arms Co., LLC v. Soto, U.S. , 140 S. Ct. 513,
205 L. Ed.
2d 317 (2019).
37
See also Oregon Firearms Federation v. Kotek, supra, 682 F. Supp. 3d
922 (determining whether firearm is ‘‘ ‘dangerous and unusual’ ’’ involves
inquiry into whether it is ‘‘commonly possessed by law-abiding citizens
for lawful purposes’’); id. (considering ‘‘objective evidence regarding the
ordinary self-defense needs of law-abiding citizens’’ in relation to both ‘‘dangerous and unusual’’ and ‘‘common use’’ inquiries); Hanson v. District of
Columbia, 671 F. Supp. 3d 1, 10, 11, 16 (D.D.C. 2023) (using phrase ‘‘typically
possessed by law-abiding citizens for lawful purposes’’ interchangeably with
‘‘commonly used for self-defense’’), appeal filed (D.C. Cir. May 17, 2023)
(No. 23-7061); Delaware State Sportsmen’s Assn., Inc. v. Delaware Dept.
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that the items at issue are arms in common use or
typically possessed for lawful purposes like self-defense
and, by implication, are not dangerous and unusual
weapons. If he satisfies that burden, the state can then
present evidence that the weapons are not, in fact, in
common use or typically possessed for lawful purposes
like self-defense, or are dangerous and unusual, and
thus fall outside of the second amendment’s scope. To
be clear, the initial burden is on the party challenging
the statute at issue to demonstrate that the second
amendment presumptively protects the regulated
weapon, and not on the state to prove that the weapon
is not protected. In weighing the evidence presented
by the parties, the court must decide whether the defendant has proved by a preponderance of evidence that
the item at issue is (1) in fact an ‘‘arm’’ or an accessory
that is necessary or essential to render a protected arm
operable and (2) in common use or typically possessed
for lawful purposes like self-defense.
3
Having concluded that the defendant bears the burden of proof on the common use issue, we now turn
to what that inquiry might entail. The defendant argues
that the relevant inquiry is only whether the arm is
‘‘typically possessed for lawful purposes,’’ rather than
whether it is commonly used—i.e., fired—for a lawful
purpose. In other words, the defendant asserts that he
can satisfy his burden simply by presenting statistical
evidence that the firearms and firearm components at
issue are commonly owned in this country. The defendant’s counsel suggested at oral argument before this
court, however, that the defendant may have to show
that those items, in addition to being commonly owned,
are ‘‘used in a lawful manner.’’ Although, in his principal
of Safety & Homeland Security, 664 F. Supp. 3d 584, 591 (D. Del. 2023)
(‘‘[w]hether a weapon is ‘in common use’ depends on whether it is dangerous
and unusual’’), aff’d, 108 F.4th 194 (3d Cir. 2024).
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State v. Giannone
appellate brief, the defendant does not clearly define
the ‘‘lawful purpose’’ for which he asserts AR-15 style
rifles and large capacity magazines are commonly used
or owned,38 he argues in his reply brief that those items
are commonly used for self-defense. The defendant also
asserts for the first time in his reply brief that ‘‘[h]unting
rifles with semiautomatic action are ubiquitous,’’ suggesting that hunting may be another lawful purpose for
which semiautomatic rifles like an AR-15 style rifle are
commonly used. As to silencers, the defendant argues
that they ‘‘have legitimate uses in hunting, target shooting, and self-defense’’ because they protect the user’s
hearing. The defendant further argues, emphasizing the
‘‘conjunctive’’ nature of the ‘‘dangerous and unusual’’
inquiry, that a weapon cannot be considered ‘‘dangerous and unusual,’’ and therefore outside of the second
amendment’s scope, if it is commonly owned. He also
suggests, however, that it may be relevant to whether
a weapon is dangerous and unusual to consider its
‘‘inherent risk’’ and use in crime.
The state asserts, on the other hand, that we should
adopt the formulation of the common use inquiry
applied in National Assn. for Gun Rights v. Lamont,
supra, 685 F. Supp. 3d 63. In that case, the court asked
whether the weapon at issue was commonly used for
self-defense and typically possessed for that purpose
or, instead, was dangerous or unusual, meaning that
the weapon was used in a way that made it particularly
dangerous or it was unusual for the weapon to be possessed for self-defense. See id., 90–91. Thus, according
to the state, a weapon is protected by the second amendment only if it is both commonly used and typically
38
For instance, the defendant asserts generally that both large capacity
magazines and ‘‘[t]he semiautomatic rifles Connecticut defines as assault
weapons are typically possessed by law-abiding citizens for lawful purposes
. . . .’’ He also notes in passing that, although ‘‘[a] self-defense situation
is . . . rare,’’ large capacity magazines ‘‘are used for lawful self-defense
purposes.’’
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State v. Giannone
possessed for self-defense and is therefore neither
unusual nor dangerous.
a
Initially, we seek to clarify the ‘‘lawful purpose’’ for
which the items at issue must be ‘‘in common use.’’ In
Heller, the Supreme Court emphasized that individual
self-defense is the ‘‘core lawful purpose’’ protected by
the second amendment; District of Columbia v. Heller,
supra,
554 U.S. 630; as well as ‘‘the central component’’
of the second amendment right; (emphasis in original)
id., 599; a point that the court later reiterated in New
York State Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 29. Nevertheless, the Supreme Court also stated
in Heller that the second amendment protects weapons
that are ‘‘typically possessed by law-abiding citizens
for lawful purposes’’ generally. District of Columbia v.
Heller, supra, 625.39 Thus, we conclude that self-defense,
although the core lawful purpose protected by the second amendment, is not necessarily the only lawful purpose that receives such protection.40
39
Although Bruen focuses on self-defense and does not use the same
‘‘lawful purposes’’ language as Heller; see New York State Rifle & Pistol
Assn., Inc. v. Bruen, supra,
597 U.S. 32, 47 (undisputed that handguns were
in common use for self-defense); we do not view Bruen as holding that self-defense is the sole lawful purpose protected by the second amendment. In
Bruen, the court had no reason to discuss other lawful purposes because
the parties argued that their proposed conduct involved self-defense. Id.,
32. Moreover, the absence of such discussion from the court’s opinion does
not mean that Heller’s ‘‘lawful purposes’’ language is no longer relevant.
Indeed, in Bruen, the court indicated that it was clarifying and applying
Heller, not overruling it. See New York State Rifle & Pistol Assn., Inc. v.
Bruen, supra, 31 (‘‘[h]aving made the constitutional standard endorsed in
Heller more explicit, we now apply that standard to New York’s proper-cause requirement’’).
40
But see, e.g., Bevis v. Naperville, supra,
85 F.4th 1192 (‘‘Both Supreme
Court decisions and historical sources indicate that the [a]rms the [s]econd
[a]mendment is talking about are weapons in common use for self-defense.
That is not to say that there are no other lawful uses for weapons—sporting
uses, collection, and competitions come to mind as examples. But the constitutional protection exists to protect the individual right to self-defense, and
so that will be our focus.’’); Oregon Firearms Federation v. Kotek, supra,
682 F. Supp. 3d 917 (‘‘[T]here may be lawful purposes other than self-defense
for which an individual can use a firearm . . . [such as hunting and sport
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State v. Giannone
Hunting and target shooting, the additional lawful
purposes suggested by the defendant, might qualify as
other protected lawful purposes. Indeed, the Supreme
Court explained that ‘‘[t]he prefatory 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.’’ (Emphasis added.) Id., 599; see also Heller
v. District of Columbia, 670 F.3d 1244, 1260 (D.C. Cir.
2011) (interpreting Heller’s statement that individual
self-defense is second amendment’s ‘‘central component’’ as recognizing that ‘‘the [s]econd [a]mendment
protects the right to keep and bear arms for other lawful
purposes, such as hunting’’ (internal quotation marks
omitted)). Furthermore, that target shooting for the
purpose of training also may be a protected lawful purpose finds support in the court’s conclusion that ‘‘the
adjective ‘well-regulated’ [in the second amendment]
implies . . . the imposition of proper discipline and
training.’’ District of Columbia v. Heller, supra, 554 U.S.
597; see also id., 618–19 (citing historical commentary
stating that second amendment right ‘‘implies the learning to handle and use [arms]’’ and that ‘‘citizen[s] who
. . . practi[c]e in safe places the use of [a gun or pistol],
and in due time [teach] [their children] to do the same,
[exercise] [their] individual right[s]’’ (internal quotation
marks omitted)); Oakland Tactical Supply, LLC v.
Howell Township, 103 F.4th 1186, 1197 (6th Cir. 2024)
(‘‘the [s]econd [a]mendment protects the right to engage
in . . . firearms training as necessary to protect the
right to effectively bear arms in case of confrontation’’
(footnote omitted)), petition for cert. filed (U.S. August
or target shooting]. . . . While these uses may be lawful, they have never
been explicitly recognized as being the central component of the [s]econd
[a]mendment right; only self-defense enjoys that kind of unique focus within
the Supreme Court’s caselaw. . . . Accordingly, this [c]ourt finds that the
[s]econd [a]mendment protects an individual right to commonly used firearms for the central purpose of self-defense.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.)).
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State v. Giannone
20, 2024) (No. 24-178).41 At least one court, however,
has called into question whether hunting and other recreational uses of arms are protected by the second
amendment. See, e.g., Oregon Firearms Federation v.
Kotek, supra, 682 F. Supp. 3d 917 (‘‘[h]unting and other
recreational uses of guns have no explicit or otherwise
direct protection in the text of the [c]onstitution or
under existing doctrine, nor does the historical evidence support such a conclusion’’ (internal quotation
marks omitted)). In the present cases, neither party has
fully addressed, either before the trial court or this
court, what lawful purposes are protected by the second
amendment. Thus, to the extent that the defendant
seeks to argue on remand that AR-15 style rifles, large
capacity magazines, and silencers are in common use
for a lawful purpose other than self-defense, we leave
it to the trial court to decide, on the basis of the record
developed by the parties, whether the proposed lawful
purpose is one protected by the second amendment.
b
We now consider how the trial court is to assess
whether a weapon is in common use today for lawful
purposes. Although the Supreme Court made clear in
Bruen that ‘‘the [s]econd [a]mendment protects the possession and use of weapons that are in common use at
the time’’; (internal quotation marks omitted) New York
State Rifle & Pistol Assn., Inc. v. Bruen, supra,
597
U.S. 21; it did not set forth any sort of analytical framework for evaluating whether a weapon satisfies that
criteria. Because it was undisputed in Bruen ‘‘that handguns are weapons in common use today for self-defense,’’ it was unnecessary for the court to analyze
the issue. (Internal quotation marks omitted.) Id., 32.
In an effort to provide guidance to the trial court and
the parties, we briefly discuss evidence other courts
41
See also Friedman v. Highland Park, 577 U.S. 1039, 1039,
136 S. Ct.
447,
193 L. Ed. 2d 483 (2015) (Thomas, J., dissenting from denial of certiorari)
(noting that ‘‘many Americans own [modern sporting rifles (e.g., AR-style
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State v. Giannone
have considered when assessing whether a weapon is
commonly used or typically possessed today for lawful
purposes or whether the weapon is, by contrast, dangerous and unusual. We do not endeavor to define precisely
all of the evidence that the court should consider or
how it should weigh such evidence; rather, we simply
observe that there are several considerations that may
inform a court’s analysis of those issues.42
First, to address the defendant’s argument on statistical numerosity, by contrasting weapons ‘‘in common
semiautomatic rifles)] for lawful purposes like self-defense, hunting, and
target shooting’’).
42
Given our conclusion that the ‘‘dangerous and unusual’’ issue is encompassed within the ‘‘common use’’ inquiry rather than is itself a distinct
inquiry, we do not find it necessary to separately define ‘‘dangerous and
unusual.’’ We do find it necessary, however, to address the state’s argument
that the proper formulation of the phrase is ‘‘dangerous or unusual.’’ The
state relies on National Assn. for Gun Rights v. Lamont, supra, 685 F.
Supp. 3d 90, in which the court rejected that ‘‘dangerous and unusual’’ was
a conjunctive test because ‘‘Heller’s use of [that] phrase . . . does not state
that it must be conjunctive, but instead cites to several sources . . . [that]
use the phrase ‘dangerous or unusual weapons’ . . . .’’ (Citations omitted;
emphasis omitted.) We are not persuaded.
In Bruen, the Supreme Court carefully used the phrase ‘‘dangerous and
unusual’’ five times to describe the tradition of prohibiting the carrying of
dangerous and unusual weapons, and it used the phrase ‘‘dangerous or
unusual’’ only once when quoting from the brief submitted by the government’s amici. New York State Rifle & Pistol Assn., Inc. v. Bruen, supra,
597
U.S. 21, 46–47, 51; see also Caetano v. Massachusetts,
577 U.S. 411, 417–18,
136 S. Ct. 1027,
194 L. Ed. 2d 99 (2016) (Alito, J., concurring in the judgment)
(Whether a weapon is dangerous and unusual ‘‘is a conjunctive test: A
weapon may not be banned unless it is both dangerous and unusual. . . .
[T]he relative dangerousness of a weapon is irrelevant when the weapon
belongs to a class of arms commonly used for lawful purposes. . . . If
Heller tells us anything, it is that firearms cannot be categorically prohibited
just because they are dangerous.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.)). Thus, the Supreme Court has made it
fairly clear that a weapon does not fall outside of the second amendment’s
scope merely because it is relatively dangerous. We reiterate that the ‘‘common use’’ inquiry asks whether the weapons are commonly used or typically
possessed for lawful purposes like self-defense. Accordingly, to the extent
that the state seeks to demonstrate on remand that the weapons at issue
are dangerous, evidence of the weapon’s dangerousness informs the ‘‘common use’’ inquiry only insofar as it tends to show that the weapon is not in
fact commonly used or owned by American citizens for such lawful purposes.
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State v. Giannone
use at the time’’ with ‘‘those that are highly unusual in
society at large’’; (internal quotation marks omitted)
id., 47; Bruen suggests that statistics on possession,
ownership, or circulation of the weapon at issue, ‘‘when
contextualized by a denominator’’; Rupp v. Bonta,
Docket No. 8:17-cv-00746-JLS-JDE, 2024 WL 1142061,
*18 (C.D. Cal. March 15, 2024), appeal filed (9th Cir.
April 24, 2024) (No. 24-2583); may indeed be one relevant consideration. For example, the United States District Court for the District of New Jersey, in concluding
that the plaintiff had proved that AR-15s were in common use for lawful purposes, relied on evidence that
‘‘AR-15 firearms are produced by a multitude of manufacturers and are commonly owned throughout the
United States—it is estimated that as of 2022, AR-15s
and similar sporting rifles had around 24 million owners; this ownership number was exceeded only by the
number of registered handgun owners within our
[n]ation. As of 2022, it was estimated that there were
around 24 million AR-15s and similar sports weapons
in circulation; this number was exceeded only by the
number of registered handgun owners within the United
States.’’ (Footnote omitted.) Assn. of New Jersey
Rifle & Pistol Clubs, Inc. v. Platkin, Docket Nos. 18-
10507-PGS-JBD, 22-04360-PGS-JBD and 22-04397-PGS-JBD, 2024 WL 3585580, *18 (D.N.J. July 30, 2024), appeal
filed sub nom. Assn. of New Jersey Rifle & Pistol Clubs,
Inc. v. Attorney General (3d Cir. August 6, 2024) (No.
24-2415), and appeal filed sub nom. Assn. of New Jersey
Rifle & Pistol Clubs, Inc. v. Attorney General (3d Cir.
August 9, 2024) (No. 24-2450). We nevertheless agree
with the courts that have concluded that such statistics
are not dispositive.43 Because, as we have already stated
in this opinion, the full inquiry is whether the weapon
is in common use today ‘‘for lawful purposes like self-defense’’; (emphasis added) District of Columbia v.
43
See, e.g., Vermont Federation of Sportsmen’s Clubs v. Birmingham,
Docket No. 2:23-CV-710, 2024 WL 3466482, *8 (D. Vt. July 18, 2024) (‘‘ ‘common ownership’ is different from ‘common use for self-defense,’ which is
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Heller, supra, 554 U.S. 624; see also New York State
Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 47
(handguns ‘‘are indisputably in common use for self-defense today’’ (emphasis added; internal quotation
marks omitted)); the court must also consider how and
why a particular weapon is used. See, e.g., National
Assn. for Gun Rights v. Lamont, supra, 685 F. Supp.
3d 87–88 (‘‘the three phrases—common use, typical possession, and dangerous and unusual—[are] meant to
get at both . . . how and why the firearms are commonly used and possessed, whether it be for self-defense or for some unlawful end’’);44 see also Oregon
what Bruen mandates’’), appeal filed, 2024 WL 3466482 (2d Cir. July 31,
2024) (No. 24-2026); National Assn. for Gun Rights v. Lamont, supra, 685
F. Supp. 3d 86–87 (noting circularity concerns with ‘‘solely statistical’’ inquiry
and that relevant inquiry is ‘‘whether the weapons are in common use today
for self-defense’’ (emphasis in original; internal quotation marks omitted));
Hanson v. District of Columbia, 671 F. Supp. 3d 1, 11 (D.D.C. 2023)
(‘‘Whether [large capacity magazines] are in common use is merely the
beginning of the analysis. The full inquiry is whether the prohibited weapons
are typically possessed . . . for lawful purposes.’’ (Emphasis omitted; internal quotation marks omitted.)), appeal filed (D.C. Cir. May 17, 2023) (No.
23-7061).
But see, e.g., United States v. Mitchell, Docket No. 1:24-cr-9, 2024 WL
2272275, *3 (N.D. Ohio May 20, 2024) (viewing ‘‘common use’’ as purely
statistical inquiry and finding that, ‘‘[a]lthough the number of civilian-owned
machineguns has increased to about 740,000, this amount—which is less
than .2 [percent] of total firearms in the United States—remains too insignificant for machineguns to be considered in common use’’ (internal quotation
marks omitted)); Mock v. Garland, 697 F. Supp. 3d 564, 581 (N.D. Tex. 2023)
(‘‘[t]he relevant inquiry under this standard is the current total number of
a particular weapon that is in lawful possession, ownership, and circulation
throughout the United States’’), appeals dismissed sub nom. Watterson v.
Bureau of Alcohol, Tobacco, Firearms & Explosives, Docket Nos. 23-40556,
23-11157, 23-11199, 23-11203, 23-11204 and 23-40685, 2024 WL 3935446 (5th
Cir. August 26, 2024); United States v. Lane, supra, 689 F. Supp. 3d 251
(‘‘the question of whether machineguns are ‘unusual’ can be answered by
simply comparing the number of the machineguns in this country to the
total number of guns overall’’).
44
We note that, although our proposed analysis is similar, we do not adopt
the same analytical framework that the court applied in National Assn. for
Gun Rights v. Lamont, supra, 685 F. Supp. 3d 63. We are persuaded by
certain aspects of the court’s analysis in that case but remain unconvinced
by others. In particular, we do not agree that ‘‘a weapon must be both
possessed for the purpose of and actually used for self-defense in order to
fall within the [s]econd [a]mendment’s protection . . . .’’ (Emphasis added.)
Id., 90–91. As discussed further in this opinion, although how a weapon is
used is relevant to the analysis, we do not believe that it is necessary that
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State v. Giannone
Firearms Federation v. Kotek, supra, 682 F. Supp. 3d
916 (common use is not dispositive of inquiry but must
be considered in conjunction with how firearm or firearm accessory is used).
Several considerations may inform a court’s inquiry
into how and why a weapon is used. For example, a
court may find it relevant to assess how frequently the
weapon is in fact used for lawful purposes like self-defense. See, e.g., Hanson v. District of Columbia, 671
F. Supp. 3d 1, 14, 16 (D.D.C. 2023) (magazines with
capacity of more than ten rounds are ‘‘not in fact commonly used for self-defense’’ because civilians fire average of 2.2 shots in self-defense incidents), appeal filed
(D.C. Cir. May 17, 2023) (No. 23-7061). A court may
weigh that evidence against other evidence tending to
show that the weapon is instead disproportionately
used for unlawful purposes. See, e.g., National Assn.
for Gun Rights v. Lamont, supra, 685 F. Supp. 3d 99
(although ‘‘mindful of the fact that the commonality of
a particular firearm or weapon’s use in crime was not
enough to find in either Heller or Cuomo that the firearms at issue were not typically used for law-abiding
purposes,’’ and thus not treating such evidence as dispositive, court found that evidence as to suitability of
assault weapons for crime outweighed limited evidence
presented on their use for self-defense); Oregon Firearms Federation, Inc. v. Brown, 644 F. Supp. 3d 782,
801 (D. Or. 2022) (large capacity magazines are not
in common use for lawful purposes like self-defense
because, while ‘‘rarely used by civilians for self-defense,’’ they are ‘‘disproportionately used in crimes
involving mass shootings’’), appeal dismissed, Docket
No. 22-36011, 2022 WL 18956023 (9th Cir. December
12, 2022).
Additionally, a court may find it relevant to consider
whether the firearm is predominantly used by the milia weapon is frequently fired or deployed to receive second amendment
protection.
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State v. Giannone
tary or law enforcement;45 has features that make it
more suitable for self-defense,46 perhaps as opposed to
military purposes;47 or has features that resemble those
of a military grade weapon or are distinguishable from
those of a handgun,48 the latter of which the United
45
See, e.g., Oregon Firearms Federation, Inc. v. Brown, supra, 644 F.
Supp. 3d 801 (large capacity magazines are not in common use for lawful
purposes like self-defense because, while ‘‘rarely used by civilians for self-defense, [large capacity magazines] are often used in law enforcement and
military situations’’).
46
See, e.g., Assn. of New Jersey Rifle & Pistol Clubs, Inc. v. Platkin,
supra, 2024 WL 3585580, *18 (‘‘[T]he build of the AR-15 makes it well-suited
to self-defense because it is light weight, [has] very mild recoil, and [has]
good ergonomics . . . [and] it is a weapon which is well suited to younger
shooters, female shooters, and other shooters of smaller stature . . . . Further, the AR-15’s design features—including the effectiveness of its cartridge
for self-defense use and its better continuity of fire when used with available
magazines—make the AR-15 a good choice for self-defense.’’ (Citation omitted; internal quotation marks omitted.)).
47
See, e.g., United States v. Alsenat, Docket No. 0:23-cr-60209-Leibowitz,
2024 WL 2270209, *6 (S.D. Fla. May 20, 2024) (although not deciding whether
‘‘unusual’’ involves determining whether weapon is common in society or
its essential purpose is self-defense, court concluded that ‘‘machineguns are
unusual . . . [because they] are both absolutely and relatively uncommon
in the United States [and] . . . are unsuitable as a weapon for self-defense’’
(internal quotation marks omitted)); National Assn. for Gun Rights v.
Lamont, supra, 685 F. Supp. 3d 103 (evidence in record that ‘‘assault weapons
and [large capacity magazines] are more suitable for military use than civilian
self-defense . . . support[ed] [the court’s] conclusion that the militaristic
character of assault weapons weighs in favor of finding that they are not
typically possessed by the average citizen for self-defense’’); Hanson v.
District of Columbia, supra, 671 F. Supp. 3d 11–14 (considering whether
benefits of large capacity magazines are ‘‘most useful in military service’’);
Oregon Firearms Federation, Inc. v. Brown, supra, 644 F. Supp. 3d 801
(observing that large capacity magazines are ‘‘particularly designed and
most suitable for military and law enforcement applications rather than the
core [s]econd [a]mendment right of self-defense’’ (internal quotation marks
omitted)). But see Delaware State Sportsmen’s Assn., Inc. v. Delaware Dept.
of Safety & Homeland Security, 664 F. Supp. 3d 584, 594 (D. Del. 2023)
(‘‘the relevant question . . . is ‘what the people choose’ for lawful purposes,
rather than a weapon’s objective suitability for those purposes’’), aff’d, 108
F.4th 194 (3d Cir. 2024); see also District of Columbia v. Heller, supra,
554
U.S. 629 (‘‘[w]hatever the reason, handguns are the most popular weapon
chosen by Americans for self-defense in the home’’ (emphasis added)).
48
See, e.g., Bevis v. Naperville, supra,
85 F.4th 1195 (AR-15s and large
capacity magazines ‘‘are much more like machineguns and military-grade
weaponry than they are like the many different types of firearms that are
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State v. Giannone
States Supreme Court has deemed ‘‘the quintessential
self-defense weapon.’’ District of Columbia v. Heller,
supra, 554 U.S. 629. For example, in Bevis v.
Naperville,
supra,
85 F.4th 1197, the Seventh Circuit focused its
inquiry at Bruen’s first step regarding whether the
weapons at issue ‘‘[fell] on the military or civilian side
of the line.’’ The court explained that ‘‘what distinguishes AR-15s from M-16s . . . is important precisely
because Heller itself stated that [M-16s] are not among
the [a]rms covered by the [s]econd [a]mendment; they
are instead a military weapon.’’ Id., 1195. On the basis
of the limited evidence presented during proceedings
on the plaintiffs’ motion for a preliminary injunction,
the court in Bevis concluded that AR-15s and large
capacity magazines ‘‘are much more like machineguns
and military-grade weaponry than they are like the many
different types of firearms that are used for individual
self-defense (or so the legislature was entitled to conclude). Indeed, the AR-15 is almost the same gun as the
[M-16] . . . . The only meaningful distinction (unless
the user takes advantage of some simple modifications
that essentially make it fully automatic) is that the AR-
15 has only semiautomatic capability . . . while the
[M-16] operates both ways. Both weapons share the
same core design, and both rely on the same patented
operating system.’’ (Footnote omitted.) Id., 1195–96; see
also footnote 30 of this opinion. The court also compared the firing rates of the AR-15 and M-16 but noted
that ‘‘[b]etter data on firing rates might change the analysis . . . .’’ Bevis v. Naperville, supra, 1197. Given that
‘‘this [was] just a preliminary look at the subject,’’ however, the court did ‘‘not rule out the possibility that
used for individual self-defense (or so the legislature was entitled to conclude)’’); see also State v. DeCiccio, supra, 315 Conn. 122, 133 (in assessing
whether dirk knives and police batons are ‘‘dangerous and unusual weapons,’’ court relied on, inter alia, findings that police batons and dirk knives
were ‘‘inherently less lethal’’ or had ‘‘more limited lethality relative’’ to
handguns).
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the plaintiffs [would] find other evidence that shows a
sharper distinction between AR-15s and [M-16s] . . .
than the . . . record reveal[ed].’’ Id.
The defendant rejects, as unsupported by Bruen,
McDonald, or Heller, the line that the court in Bevis
drew between military and civilian weapons. We do not
agree that such a distinction has no basis in the Supreme
Court’s precedent. Assessing a firearm’s militaristic
character as part of the common use inquiry finds support in Heller’s indication that weapons that are ‘‘most
useful in military service—M-16 rifles and the like’’—
are not the types of weapons typically possessed by
law-abiding citizens for lawful purposes. District of
Columbia v. Heller, supra, 554 U.S. 627. Similar to the
court in Bevis, we view Heller’s recognition of the handgun as ‘‘the quintessential self-defense weapon’’; id.,
629; and suggestion that military grade weapons like
M-16s are not protected arms; see id., 624–25, 627; as
establishing two ‘‘arms’’ at opposite ends of a spectrum.
As the court in Bevis explained, determining ‘‘the types
of ‘[a]rms’ that are covered by the [s]econd [a]mendment . . . presents a line-drawing problem. Everyone
can agree that a personal handgun, used for self-defense, is one of those [a]rms that law-abiding citizens
must be free to ‘keep and bear.’ Everyone can also
agree, we hope, that a nuclear weapon such as the nowretired M388 Davy Crockett system, with its 51-pound
W54 warhead, can be reserved for the military . . . .
Many weapons, however, lie between these extremes.’’
(Footnotes omitted.) Bevis v. Naperville, supra, 85
F.4th 1182–83. The common use inquiry aims to determine exactly where the weapons at issue fall on that
spectrum.
The defendant also argues that common use does not
require ‘‘the actual firing of a weapon’’ because, if it
did, ‘‘the Heller court would have looked at statistical
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averages about how often handguns were fired for self-defense. The statistic was never mentioned.’’ (Internal
quotation marks omitted.) In support of this position,
the defendant cites two pre-Bruen cases that applied
Heller. See footnote 8 of this opinion. First, the defendant cites Justice Alito’s concurring opinion in Caetano
v. Massachusetts, 577 U.S. 411,
136 S. Ct. 1027,
194 L.
Ed. 2d 99 (2016), in which the United States Supreme
Court vacated the lower court’s judgment and
remanded the case to that court because it had failed to
properly apply Heller to a challenge to a Massachusetts
prohibition on the possession of stun guns. The defendant asserts that, in considering ‘‘whether stun guns
are commonly possessed by law-abiding citizens for
lawful purposes today’’; (emphasis omitted) id., 420
(Alito, J., concurring in the judgment); Justice Alito
considered only the number of Tasers and stun guns
that were sold to private citizens, not how often those
weapons were used. Id. Second, the defendant asserts
that, in State v. DeCiccio, supra, 315 Conn. 108, in which
our Supreme Court considered whether dirk knives and
police batons are ‘‘arms’’ for purposes of the second
amendment, the court did not ‘‘consider how often
[those weapons] were used for self-defense . . . .
Instead, it concluded that both are typically possessed
by law-abiding citizens for lawful purposes.’’
We agree with the defendant that a firearm does not
have to be fired regularly to constitute a weapon in
common use for lawful purposes like self-defense. As
the defendant argues, a firearm can be ‘‘ ‘used’ ’’ for
self-defense even if it is never actually fired. See, e.g.,
Duncan v. Bonta, supra,
695 F. Supp. 3d 1227 (‘‘[A]
firearm kept on one’s nightstand is used for self-defense
even when the night is quiet. It is kept and used in case
of confrontation. A person may happily live a lifetime
without needing to fire their gun in self-defense. But
that is not to say that such a person does not use their
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gun for self-defense when he or she keeps it under the
bed with a hope and a prayer that it never has to be
fired.’’ (Emphasis omitted.)); Oregon Firearms Federation v. Kotek, supra, 682 F. Supp. 3d 921 (‘‘[A]n individual need not fire a gun to use it for self-defense. . . .
[I]n brandishing a firearm to intimidate an attacker,
for instance, the individual uses the firearm for self-defense.’’ (Footnote omitted.)). To be sure, the Supreme
Court focused on the handgun being ‘‘the most popular
weapon chosen by Americans for self-defense in the
home,’’ rather than whether it was in fact commonly
deployed for that lawful purpose. (Emphasis added;
internal quotation marks omitted.) New York State
Rifle & Pistol Assn., Inc. v. Bruen, supra,
597 U.S. 22;
see also District of Columbia v. Heller, supra, 554 U.S.
629 (same). Moreover, in Heller, the court did not limit
the second amendment right to only ‘‘using’’ or ‘‘carrying’’ weapons but, instead, stated that the ordinary
meaning of the phrase ‘‘keep [a]rms’’ in the second
amendment is ‘‘have weapons.’’ (Internal quotation
marks omitted.) District of Columbia v. Heller, supra,
582; id., 583 (‘‘ ‘[k]eep arms’ was simply a common way
of referring to possessing arms, for militiamen and
everyone else’’ (emphasis omitted)). Accordingly, we
do not view the common use limitation as requiring the
actual use of a weapon. Therefore, a court may find it
relevant to Bruen’s threshold inquiry to consider, in
addition to or in place of evidence of how frequently
a firearm is actually fired, evidence that demonstrates
that a weapon is typically possessed or owned for lawful
purposes, including, but not limited to, gun owners’
subjective reasons for owning the firearm at issue in
conjunction with rates of gun ownership.49
49
Compare Delaware State Sportsmen’s Assn., Inc. v. Delaware Dept. of
Safety & Homeland Security, 664 F. Supp. 3d 584, 594–96 (D. Del. 2023)
(considering statistics on ownership and circulation of AR-15s and consumer
report showing reasons gun owners seek to own AR-15s but declining to
consider actual use statistics), aff’d, 108 F.4th 194 (3d Cir. 2024), with Oregon
Firearms Federation v. Kotek, supra, 682 F. Supp. 3d 897, 918 (stating
that ‘‘an individual’s subjective intent in purchasing a firearm or firearm
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Nonetheless, neither Justice Alito’s concurring opinion in Caetano, aside from the fact that it is not binding
on this court, nor our Supreme Court’s decision in
DeCiccio suggest that how frequently a weapon is actually deployed for lawful purposes is irrelevant to the
common use inquiry. Indeed, just as evidence that a
weapon is commonly owned or kept in the home for
the purpose of self-defense may inform a court’s assessment of whether Americans commonly choose a given
weapon for lawful purposes, so too may evidence of
how often Americans actually deploy that weapon for
such purposes be relevant to that question. See Vermont
Federation of Sportsmen’s Clubs v. Birmingham,
Docket No. 2:23-cv-710, 2024 WL 2150522, *2 n.5 (D. Vt.
May 14, 2024) (although relevant question may be ‘‘what
weapons are chosen [by] Americans for self-defense,
not what weapons are deployed or fired in self-defense
. . . the frequency at which weapons are fired in self-defense is still relevant to the question of which weapons are used in self-defense’’ (citation omitted; emphasis in original; internal quotation marks omitted)),
appeal filed, 2024 WL 3466482 (2d Cir. July 31, 2024)
(No. 24-2026). To the extent that the defendant argues
that the former type of evidence is entitled to greater
weight than the latter, ‘‘[i]t is the exclusive province of
the [trial court on remand] to weigh the conflicting
evidence, determine the credibility of witnesses and
determine whether to accept some, all or none of a
accessory for self-defense, while relevant, also cannot be dispositive in
assessing whether a firearm or firearm accessory is in common use for self-defense’’ and concluding that large capacity magazines are not commonly
used for self-defense because, although ‘‘many Americans purchase [them]
with the intent to use them for self-defense . . . it is exceedingly rare . . .
for an individual to fire more than ten shots in self-defense’’), and National
Assn. for Gun Rights v. Lamont, supra, 685 F. Supp. 3d 87–88 (asking
whether ‘‘law-abiding citizens buy the weapons at issue for the purpose of
defending themselves, or because the weapons’ characteristics are well-suited for some unlawful purpose,’’ and, once purchased, whether those
firearms are ‘‘actually used for self-defense, or are . . . more often utilized
to achieve unlawful ends’’ (emphasis added)).
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witness’ testimony.’’ (Internal quotation marks omitted.) Delena v. Grachitorena, 216 Conn. App. 225, 231,
283 A.3d 1090 (2022); see also Vermont Federation of
Sportsmen’s Clubs v. Birmingham, supra, *2 n.5
(‘‘[p]laintiffs may seek to admit [evidence] on how frequently individuals keep [large capacity magazines] for
self-defense, or the magnitude of their deterrent effect
. . . but relevance of other considerations to the ultimate inquiry creates a question of weight, not relevance’’ (citation omitted; emphasis omitted; internal
quotation marks omitted)).
In sum, courts have considered a number of factors
to determine whether the weapons at issue were in
common use for lawful purposes like self-defense,
which factors tend to show both ‘‘how’’ and ‘‘why’’ a
particular weapon is used or possessed, including, but
not limited to, evidence demonstrating whether American citizens typically possess, or own, the weapon and
the subjective reasons for such ownership. We agree
that such evidence can be helpful in making the factual
determination as to whether the weapon is in common
use for a lawful purpose. At the same time, we do not
believe that this constitutes an exhaustive list of the
factors that the court can consider; nor is any combination of these factors dispositive of the common use
question. Ultimately, it is the function of the trial court
on remand, applying the rules of evidence, to decide
whether the evidence presented by the parties is relevant to the common use inquiry and to credit the evidence that it finds most persuasive.
The defendant’s burden on remand, then, is to demonstrate as a threshold matter that (1) the silencers and
large capacity magazines that he possessed are ‘‘arms’’
as Heller defined that term or, alternatively, are necessary or essential to use a constitutionally protected
firearm, and (2) the silencers, large capacity magazines,
and AR-15 style rifles that he possessed or sold are in
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common use or typically possessed today for lawful
purposes. The state may then present evidence to rebut
that showing. The court must weigh the evidence presented by the parties to determine whether it weighs
in favor of second amendment protection. If the court
concludes at step one that the second amendment does
not apply, the analysis ends there. Alternatively, if the
court concludes that any of the firearms or related
components at issue are ‘‘arms’’ in common use or
typically possessed for lawful purposes, then the second amendment presumptively protects those items,
and the court must proceed to Bruen’s second step, to
which we now turn briefly.
B
As clearly set forth in Bruen, if the second amendment presumptively protects the defendant’s conduct,
the burden then shifts to the state to demonstrate that
its regulation of that conduct ‘‘is consistent with the
[n]ation’s historical tradition of firearm regulation.’’
New York State Rifle & Pistol Assn., Inc. v. Bruen,
supra,
597 U.S. 24. On remand, the parties will have an
opportunity to develop the historical record for the
purpose of collecting historical analogues to the challenged statutes. In assessing these analogues, the court
must consider ‘‘whether the challenged regulation is
consistent with the principles that underpin our regulatory tradition,’’ or, in other words, ‘‘is relevantly similar
to laws that our tradition is understood to permit
. . . .’’ (Internal quotation marks omitted.) United
States v. Rahimi, supra,
144 S. Ct. 1898. Central to that
inquiry is ‘‘how and why the regulations burden a law-abiding citizen’s right to armed self-defense’’; that is,
‘‘whether modern and historical regulations impose a
comparable burden on the right of armed self-defense
and whether that burden is comparably justified . . . .’’
New York State Rifle & Pistol Assn., Inc. v. Bruen,
supra, 29. If the court is satisfied that the state has
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carried its burden, it must uphold the regulation as
constitutional.50
The parties do not dispute the nature of the inquiry
at Bruen’s second step to the same extent that they
dispute the nature of the step one inquiry. We find
it necessary, however, to briefly address two of the
defendant’s arguments about the minimal historical
analysis that the state sets forth in its appellate brief.
We will address each argument in turn.
First, the defendant argues that the state cannot carry
its burden by presenting historical regulations of nonfirearm weapons such as knives. We do not read Bruen’s
test so rigidly. The Supreme Court emphasized in Bruen
that the state must only ‘‘identify a well-established and
representative historical analogue’’ to a modern-day
regulation, not ‘‘a historical twin’’ or ‘‘a dead ringer
. . . .’’ (Emphasis in original.) Id., 30. As the court
recently reiterated in Rahimi, ‘‘when a challenged regulation does not precisely match its historical precursors,
it still may be analogous enough to pass constitutional
muster.’’ (Internal quotation marks omitted.) United
States v. Rahimi, supra,
144 S. Ct. 1898. Indeed, in
Bruen, the Supreme Court suggested that a historical
regulation of nonfirearm weapons may be a sufficiently
comparable analogue to a modern firearm regulation.
50
Although we have greatly simplified our explanation of Bruen’s second
step, we acknowledge that the practical application of the history and tradition test is not, by any means, a simple task for a trial court. We echo Justice
Jackson’s sentiment, expressed in her concurring opinion in Rahimi, that
‘‘courts, which are currently at sea when it comes to evaluating firearms
legislation, need a solid anchor for grounding their constitutional pronouncements.’’ United States v. Rahimi, supra,
144 S. Ct. 1930. Until the United
States Supreme Court issues clearer guidance on how to conduct Bruen’s
test, however, it is our job, and the job of the trial court, to apply that test
as we are best able to understand it. We do not underestimate the difficult
burden confronting the trial court on remand. And, although we do not
expect that we have addressed in this opinion every issue that will arise
on remand, we hope that our guidance eases at least some of the heavy
burden the Bruen test imposes.
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See New York State Rifle &; Pistol Assn., Inc. v. Bruen,
supra, 597 U.S. 40–42. Specifically, the court concluded
that a medieval English statute prohibiting ‘‘rid[ing] or
go[ing] . . . armed’’ was ‘‘not sufficiently probative to
defend New York’s proper-cause requirement.’’ (Internal quotation marks omitted.) Id., 40. Aside from the
fact that the statute was enacted more than 450 years
before the constitution’s ratification and thus ‘‘ha[d]
little bearing on the [s]econd [a]mendment,’’ the court
reasoned that the medieval prohibition appeared to ‘‘focus
on armor and, perhaps, weapons like launcegays,’’ both
of which, unlike handguns, ‘‘were generally worn or
carried only when one intended to engage in lawful combat
or . . . to breach the peace.’’ Id., 41. The court noted
that the government had presented ‘‘no evidence suggesting the [medieval] [s]tatute applied to the smaller
medieval weapons’’—namely, a knife or dagger, which
almost everyone during medieval times carried in their
belts and were often worn by civilians for self-protection—‘‘that str[uck] [the court] as most analogous to modern handguns,’’ which were not in existence
during the medieval period. Id., 41–42. Thus, the court
implied that, if the historical regulation had applied to
the types of medieval weapons that the court viewed
as ‘‘most analogous to modern handguns,’’ it may have
been a more persuasive historical analogue for the modern-day handgun regulation. Id., 42.
Accordingly, to prevail on remand, it is not necessary
for the state to present a ‘‘historical twin’’ that regulates
the same type of weapon as does the challenged regulation. The central considerations, rather, are ‘‘whether
modern and historical regulations impose a comparable
burden on the right of armed self-defense and whether
that burden is comparably justified . . . .’’ Id., 29. If a
court concludes that a historical knife regulation and
a modern firearm regulation comparably burden that
right, and that the burden is comparably justified, then
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that historical regulation may be sufficiently analogous
to the modern regulation to pass Bruen’s test. Indeed,
if the regulated firearm was not in existence at the time
of the second amendment’s ratification, resorting to
historical analogues of nonfirearm weapons may be the
only way in which the state can satisfy its burden.
Second, the defendant claims that the state’s arguments about technological developments and using a
‘‘ ‘nuanced approach’ ’’ to analytical reasoning in effect
ask this court to adopt the type of means-end scrutiny
that Bruen prohibits. We disagree. To be sure, other
courts have recognized that Bruen’s instruction to look
for a historical analogue that imposes a comparable
burden that is comparably justified in relation to the
challenged regulation resembles a means-end balancing
test despite the court’s express rejection of such means-end balancing in the second amendment context. See,
e.g., Bevis v. Naperville, supra,
85 F.4th 1199 (‘‘[f]or all
its disclaiming of balancing approaches, Bruen appears
to call for just that: a broader restriction burdens the
[s]econd [a]mendment right more, and thus requires a
closer analogical fit between the modern regulation and
traditional ones; a narrower restriction with less impact
on the constitutional right might survive with a looser
fit’’). Nevertheless, the Supreme Court expressly provided for ‘‘a more nuanced approach’’ for cases that,
unlike Bruen and Heller, do not involve analogies that
are ‘‘relatively simple to draw’’ but, rather, ‘‘implicat[e]
unprecedented societal concerns or dramatic technological changes . . . .’’ New York State Rifle & Pistol
Assn., Inc. v. Bruen, supra, 597 U.S. 27. The court cautioned, however, that ‘‘[t]his does not mean that courts
may engage in independent means-end scrutiny under
the guise of an analogical inquiry. . . . Analogical reasoning requires judges to apply faithfully the balance
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struck by the founding generation to modern circumstances . . . . It is not an invitation to revise that balance through means-end scrutiny.’’ (Citations omitted.)
Id., 29 n.7.
Finally, we note that, although ‘‘common use,’’ ‘‘typical possession,’’ and ‘‘dangerous and unusual’’ must be
addressed at Bruen’s first step, they also may be relevant to Bruen’s second step for the purposes of identifying historical analogues that impose a comparable
burden on the second amendment right and are comparably justified. For instance, even if a weapon is ‘‘in
common use,’’ a court may nonetheless consider the
unusually dangerous character of a weapon, or its militaristic features, at Bruen’s second step. Although the
United States Supreme Court recognized a historical
tradition of prohibiting the carrying of dangerous and
unusual weapons, neither Bruen nor Heller precludes
the state from meeting its burden by demonstrating
through historical analogues that this country also has a
historical tradition of regulating particularly dangerous
weapons or of reserving certain weapons for military
or law enforcement use. See, e.g., Bevis v. Naperville,
supra, 85 F.4th 1199, 1201 (considering common use at
both steps of analysis without deciding where it
belongs, and concluding at step two that there are longstanding traditions of regulating especially dangerous
weapons and of distinguishing between military or law
enforcement access to and civilian ownership of such
weapons); National Assn. for Gun Rights v. Lamont,
supra, 685 F. Supp. 3d 90 n.11 (‘‘even if a weapon must
be dangerous and unusual to fall under the already
enumerated [s]econd [a]mendment exception from
Heller,’’ as opposed to dangerous or unusual, ‘‘it is consistent with the nation’s tradition and history of firearm
regulation to regulate narrow and specific categories
of unusually dangerous weapons resulting from developments in firearm technology’’ (emphasis omitted)).
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Additionally, to satisfy its burden of identifying a historical analogue that imposes a comparable burden on the
right to keep and bear arms, it may be necessary to
assess whether the historically regulated arms were,
like the modern regulated arms, in common use for
lawful purposes at the time of the historical regulation.
See New York State Rifle & Pistol Assn., Inc. v. Bruen,
supra, 597 U.S. 42 (rejecting historical analogue where
there was no evidence that it applied to ‘‘the smaller
medieval weapons that str[uck] [the court] as most
analogous to modern handguns’’).
The judgments are reversed and the cases are
remanded for further proceedings consistent with this
opinion.
In this opinion the other judges concurred.
