A “substantial burden” on the Second Amendment is viewed not through a policy prism but through the lens of a fundamental and enumerated constitutional right. We would be looking through the wrong end of a sight-glass if we asked whether the government permits the people to retain some of the core fundamental and enumerated right. Instead, Heller counsels us to look at whether the government regulation restricts the core fundamental right from the outset. In other words, we look to what a restriction takes away rather than what it leaves behind. Here, California’s law takes away a substantial swath of the core constitutional right of self-defense because it bans possession of half of all magazines in America today, even though they are common in guns used for self-defense. In short, a law that takes away a substantial portion of arms commonly used by citizens for self-defense imposes a substantial burden on the Second Amendment.

…

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
VIRGINIA DUNCAN; RICHARD LEWIS; PATRICK LOVETTE; DAVID MARGUGLIO; CHRISTOPHER WADDELL; CALIFORNIA RIFLE & PISTOL ASSOCIATION, INC., a California corporation, Plaintiffs-Appellees, v. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, Defendant-Appellant
August 14, 2020
[Excellent! I had not thought of this argument before.

This addresses the claim made by some (I exaggerated a bit to make the point) that as long as we have single shot 22 rifles available the Second Amendment is not infringed.—Joe]

Commonality is determined largely by statistics. But a pure statistical inquiry may hide as much as it reveals. In the Second Amendment context, protected arms may not be numerically common by virtue of an unchallenged, unconstitutional regulation. Our colleagues in the Third and Seventh Circuits agree. See ANJRPC, 910 F.3d at 116 n.15 (common use alone “is not dispositive” because of an unconstitutional regulation restricting the quantity of protected arms in circulation); Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015) (“[I]t would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.”). Thus, “[w]hile common use is an objective and largely statistical inquiry, typical possession requires us to look into both broad patterns of use and the subjective motives of gun owners.” New York State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 256 (2d Cir. 2015) (“NYSRPA”) (internal alterations and quotation marks omitted). As discussed earlier, nearly half of all magazines in the United States today hold more than ten rounds of ammunition. And the record shows that such magazines are overwhelmingly owned and used for lawful purposes. This is the antithesis of unusual. That LCMs are commonly used today for lawful purposes ends the inquiry into unusualness.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
VIRGINIA DUNCAN; RICHARD LEWIS; PATRICK LOVETTE; DAVID MARGUGLIO; CHRISTOPHER WADDELL; CALIFORNIA RIFLE & PISTOL ASSOCIATION, INC., a California corporation, Plaintiffs-Appellees, v. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, Defendant-Appellant
August 14, 2020
[Emphasis added.

YES!

If upheld this eliminates the concern about machine guns being unprotected via Heller because they have been (essentially) banned since 1986 and hence can’t be considered “in common use”.—Joe]