To be sure, Massachusetts’s prohibition on the commercial sale of common handguns qualifies as a ban. Massachusettsans—including Plaintiffs—are left only with the hopes of finding such arms through a secondhand market, where they lack knowledge of the seller or control over the price or condition of the firearm, if the firearm is available at all.
Because the Handgun Ban affects conduct covered by the Second Amendment’s plain text, it is presumptively unconstitutional. Massachusetts can overcome that presumption only by demonstrating that its regulation is consistent with the Nation’s historical tradition of firearm regulation. It is not.
First, the Supreme Court has already held that bans on common arms are inconsistent with the Nation’s historical tradition of firearm regulation and flatly unconstitutional. And Massachusetts does not deny that the banned handguns are common. Moreover, all bearable arms are prima facie protected, and—especially without making such an argument—Massachusetts cannot overcome that presumption by proving that the banned arms [are] dangerous and unusual as they must be to lose constitutional protection.
Second, to the extent that a deeper historical analysis may be required, Massachusetts has not and cannot point to any “relevantly similar” historical analogue that would justify the Handgun Ban as consistent with this Nation’s tradition of firearms regulations.
Additionally, the Supreme Court has repeatedly made clear that the right to obtain and possess other weapons or exercise self-defense through other means is no answer to a ban on the possession of common arms. So, the availability of the handguns that Massachusetts happens to approve cannot justify its ban on handguns commonly owned and used across the country.
While Plaintiffs’ Complaint makes out a strong case against the Handgun Ban, the reality is, they need only state a plausible case for relief at this early stage of the litigation, and they have surely done so.
— Firearms Policy Coalition brief in Granata v. Healey
