Amicus Curiae Brief — Merrick B. Garland, Attorney General, et al., Petitioners v. Michael Cargill

No. 22-976

In the

Supreme Court of the United States

MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL.,

Petitioners,

v.

MICHAEL CARGILL,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS CURIAE SECOND

AMENDMENT LAW CENTER, SECOND

AMENDMENT DEFENSE AND EDUCATION

COALITION, FEDERAL FIREARMS

LICENSEES OF ILLINOIS, CALIFORNIA

RIFLE & PISTOL ASSOCIATION, INC., AND

GUNS SAVE LIFE IN SUPPORT OF

RESPONDENT AND AFFIRMANCE

C.D. Michel

Counsel of Record

Konstadinos T. Moros

MICHEL & ASSOCIATES, P.C.

180 East Ocean Blvd., Suite 200

Long Beach, CA 90802

(562) 216-4444

CMichel@michellawyers.com

Counsel for Amicus Curiae

January 26, 2024

i

TABLE OF CONTENTS

Page

Table of Contents ......................................................... i

Table of Authorities .................................................... ii

Amicus Curiae Statement of Interest ........................ 1

Summary of Argument ............................................... 2

Argument .................................................................... 4

I. If Petitioners Prevail, the Next Logical Step Is

for ATF to Classify Semiautomatic Firearms as

“Machineguns”.............................................................. 4

II. The Seventh Circuit’s Decision in Bevis v. City

of Naperville Proves Amici’s Fears Are Wellfounded ........................................................................... 8

A. The Bevis court held that semi-automatic

firearms, like AR-15s, are not protected

because they are “indistinguishable” from

M16s, which are used for military purposes. .. 8

B. The Bevis decision and the “military veto” it

establishes ignore both common sense and

our nation’s historical tradition. .................... 11

C. While this is not a Second Amendment case,

a decision in Petitioners’ favor threatens

the right to bear arms. ................................... 17

Conclusion ................................................................. 18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bevis v. City of Naperville, Ill.,

85 F.4th 1175 (7th Cir. 2023) ..3, 4, 9, 10, 11, 12, 13,

17, 18

Bianchi v. Brown,

No. 21-1255, 2024 WL 163085 (4th Cir. Jan. 12,

2024) ....................................................................... 17

Cargill v. Garland,

57 F.4th 447 (5th Cir.) ............................................. 2

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................. 8, 9, 12, 16

Duncan v. Bonta,

2023 WL 6180472 (S.D. Cal. Sept. 22, 2023) .. 13, 16

Duncan v. Bonta,

83 F.4th 803 (9th Cir. 2023) .................................. 17

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) ................................... 9

Friedman v. City of Highland Park,

577 U.S. 1039 (2015) ............................................... 9

Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives,

140 S. Ct. 789 (2020) ............................................... 7

Heller v. District of Columbia,

670 F.3d 1244 (2011) ............................................... 9

Konigsberg v. State Bar of Cal.,

366 U.S. 36 (1961) ................................................. 19

iii

Mock v. Garland,

2023 WL 6457920 (N.D. Tex. Oct. 2, 2023) ............ 7

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) ......................................... 8, 17, 19

Or. Firearms Fed’n v. Kotek Or. All. for Gun Safety,

2023 WL 4541027 (D. Or. July 14, 2023) ............... 8

Silveira v. Lockyer,

328 F.3d 567 (9th Cir. 2003) ................................. 16

Staples v. United States,

511 U.S. 600 (1994) ............................... 4, 10, 11, 18

United States v. Morales,

280 F. Supp. 2d. 262 (S.D.N.Y. 2003) ..................... 6

United States v. Reed,

114 F.3d 1053 (10th Cir. 1997) ............................... 6

United States v. Smith,

477 F.2d 399 (8th Cir. 1973) ................................... 5

VanDerStok v. Garland,

86 F.4th 179 (5th Cir. 2023) ............................ 3, 5, 6

Statutes

26 U.S.C. § 5845 .......................................................... 4

Other Authorities

Black, Henry Campbell, Handbook of American

Constitutional Law 403-04 (1895) ........................ 15

Cooley, Thomas, M., LL.C., The General Principles of

Constitutional Law in the United States of America

298 (1898)............................................................... 15

iv

Cox, Matthew and Hope Hodge Seck, Army Picks Sig

Sauer’s P320 Handgun to Replace M9 Service

Pistol, Military.com (January 19, 2017),

https://www.military.com/dailynews/2017/01/19/army-picks-sig-sauer-replace-m9service-pistol.html (last accessed January 23,

2024) ....................................................................... 12

Coxe, Tench, Letter to the Philadelphia Gazette, 20

February 1788 ....................................................... 14

English, William, 2021 National Firearms Survey:

Updated Analysis Including Types of Firearms

Owned 33 (2022), available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id

=4109494 .................................................................. 8

Michel, C.D. & Konstadinos Moros, Restrictions That

‘Our Ancestors Would Never Have Accepted’: The

Historical Case Against Assault Weapon Bans, 24

Wyo. L. Rev. (forthcoming 2024),

https://ssrn.com/abstract=4568820 ....................... 16

Pomeroy, John Norton, An Introduction to the

Constitutional Law of the United States 152

(1868) ..................................................................... 16

Remarks on the First Part of the Amendments to the

Federal Constitution, under the pseudonym “A

Pennsylvanian” in the Philadelphia Federal

Gazette, June 18, 1789 .......................................... 14

Sumner, Charles, The Kansas Question, Senator

Sumner’s Speech, Reviewing the Action of the

Federal Administration Upon the Subject of

Slavery in Kansas 22-23 (Cincinnati, G.S.

Blanchard, 1856) ................................................... 15

Whiting, Samuel, et al., Second American Edition of

the New Edinburgh Encyclopædia, Volume 1 Part 2

(1813) ..................................................................... 14

1

AMICUS CURIAE STATEMENT OF INTEREST

The Second Amendment Law Center (“2ALC”) is a

nonprofit corporation in Henderson, Nevada. The

Center defends the individual rights to keep and bear

arms as envisioned by the Founders. 2ALC also

educates the public about the social utility of firearm

ownership and provides accurate historical,

criminological, and technical information to

policymakers, judges, and the public.1

The Second Amendment Defense and Education

Coalition, Ltd. (“SADEC”), is an Illinois not-for-profit

corporation. SADEC is dedicated to the defense of

human and civil rights secured by law including, in

particular, the right to bear arms. SADEC’s activities

are furthered by complementary programs of

litigation and education.

Federal Firearms Licensees of Illinois (“FFL-IL”) is

an Illinois not-for-profit corporation and represents

federally licensed gun dealers across the State of

Illinois that are harmed by that state’s recent ban on

the sale of common firearms. FFL-IL is a plaintiff in

one of the lawsuits against that ban and believes that

ATF’s erosion of the definition of “machinegun” to

encompass bump stocks is one more step closer to a

ban on semiautomatic firearms.

Founded in 1875, the California Rifle and Pistol

Association, Incorporated, (“CRPA”) is a nonprofit

1 No counsel for a party authored this brief in whole or in

part, nor did such counsel or any party make a monetary

contribution to fund this brief. No person other than the amicus

parties, its members or counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

2

organization that seeks to defend the Second

Amendment and advance laws that protect the rights

of individual citizens. CRPA regularly participates as

a party or amicus in firearm-related litigation. CRPA

works to preserve the constitutional and statutory

rights of gun ownership, including the right to selfdefense, the right to hunt, and the right to keep and

bear arms. CRPA is also dedicated to promoting

shooting sports, providing education, training, and

competition for adult and junior shooters. CRPA’s

members

include

law

enforcement

officers,

prosecutors, professionals, firearm experts, and

members of the public.

Finally, Guns Save Life (“GSL”) is an Illinois notfor-profit corporation with many members throughout

that state. GSL teaches and trains individuals in the

use of firearms, including firearms recently banned by

Illinois. Like FFL-IL, GSL is wary of the potential

expansion of ATF’s power that this case could result

in.

SUMMARY OF ARGUMENT

Both the Fifth Circuit and Respondent are correct

that “[t]he definition of ‘machinegun’ as set forth in

the National Firearms Act and Gun Control Act does

not apply to bump stocks.” Cargill v. Garland, 57

F.4th 447, 451 (5th Cir.). Arguing that it should be

allowed to redefine a nearly century-old statute,

Petitioners repeatedly speculate about Congress’

intentions, and more troublingly, appears to consider

itself the arbiter of what those intentions were. See

Pet’rs’ Br. 30, 34, 36, 40, 41. But the ATF may not

usurp the role of Congress or effect presidential edicts

banning bump stocks—particularly when the very

3

same bureau had said that bump stocks were not

machineguns at least ten times. Pet’rs’ Br. 8. Congress

can speak for itself and pass a new law if it wishes to

ban bump stocks, it does not need the ATF to speak

for it. “[I]f the statute is ambiguous, Congress must

cure that ambiguity, not the federal courts.” Pet’rs’

App. 4a; see also VanDerStok v. Garland, 86 F.4th

179, 182 (5th Cir. 2023) (“It has long been said—

correctly—that the law is the expression of legislative

will.”).

The Fifth Circuit’s decision and Respondent’s brief

covered these issues very well, and Amici need not

reiterate those arguments here. Instead, they submit

this brief to remind the Court that siding with the

Petitioners here threatens to do great harm to the

Second Amendment right to keep and bear arms.

Indeed, if the Court determines that a bump stock

meets the legal definition of a “machinegun,” then the

semiautomatic firearms owned by millions of

Americans are just one regulatory change away from

meeting a similar fate.

This is not a far-fetched concern. Amici FFL-IL and

GSL are plaintiffs in a lawsuit challenging the new

Illinois “assault weapon” law, which bans a large

variety of common firearms. The Seventh Circuit

recently upheld that ban by comparing the

semiautomatic AR-15—just one of the rifles affected

by the ban—to the fully automatic M16 and bafflingly

concluding the two are “indistinguishable.” Bevis v.

City of Naperville, Illinois, 85 F.4th 1175, 1197 (7th

Cir. 2023). The court also reached the ahistorical

conclusion that firearms used by the military are

unprotected by the Second Amendment, no matter

how common they are among civilians. With that

4

damaging precedent in place, it does not take much for

the ATF to next determine that many common

semiautomatic firearms “can be readily restored” into

machineguns, and in any case, such firearms are not

constitutionally protected given the Seventh Circuit’s

ruling in Bevis.

While this Court should rule for Respondent, no

matter how it rules, it should reaffirm and strengthen

its position that semiautomatic firearms like the AR15 “traditionally have been widely accepted as lawful

possessions.” Staples v. United States, 511 U.S. 600,

612 (1994).

ARGUMENT

I. IF PETITIONERS PREVAILS, THE NEXT LOGICAL

STEP IS FOR ATF TO CLASSIFY SEMIAUTOMATIC

FIREARMS AS “MACHINEGUNS”

As Petitioners point out, the definition of

machinegun includes “any weapon which shoots, is

designed to shoot, or can be readily restored to shoot,

automatically more than one shot, without manual

reloading, by a single function of the trigger.” Pet’rs’

Br. 4 (citing 26 U.S.C. § 5845(b)) (emphasis added).

Should this Court decide that a bump stock can

transform a lawful firearm into an illegal machinegun

despite the internal mechanisms of the firearm not

changing at all, then the ATF is perilously close to the

regulatory power to declare that common

semiautomatic firearms are also machineguns.

One only needs to look at another pending case to

see this possibility already on the horizon. At oral

argument in VanDerStok v. Garland, a case about

ATF’s new frame and receiver rules, “ATF’s counsel

conceded the agency took the word ‘restored’ from the

5

NFA and inserted it into a GCA regulation.” 86 F.4th

at 204 (Oldham, J., concurring). This is critical

because the term “restored” has been held to mean

“eight hours in a properly equipped shop with a

sophisticated understanding of metallurgy.” Id. at 207

(citing United States v. Smith, 477 F.2d 399, 400 (8th

Cir. 1973)). Judge Oldham pointed out the problem

with the ATF’s position:

The practical implications of ATF’s

position are staggering. According to

ATF, the word “readily” means the

same thing in the GCA, the NFA, and

the Final Rule. If that were true, then

millions and millions of Americans

would be felons-in-waiting. That is

because the AR-15 is the most popular

rifle in America; almost 20 million of

them were in American homes as of

2020. [citation omitted]. But every

single AR-15 can be converted to a

machine gun using cheap, flimsy

pieces of metal—including coat

hangers. [citation omitted]. That is

obviously far easier than the 8-hourin-a-professional-shop

standard

announced in Smith to govern “ready

restoration” under the NFA.

For decades, America’s AR-15

owners have relied on the fact that

AR-15s are not subject to the NFA’s

ready-restoration standard…. Of

course, an AR-15 could be “converted”

to a machine gun. But unless that

conversion could be done in a few

6

seconds or minutes, see United States

v. Morales, 280 F. Supp. 2d. 262, 272

(S.D.N.Y. 2003); United States v. Reed,

114 F.3d 1053, 1056 (10th Cir. 1997),

AR-15 owners had no reason to worry

that their rifles were capable of ready

conversion into unregistered machine

guns. The Final Rule eliminates that

certainty, says “readily” means the

same thing in the GCA and the NFA,

and says Americans violate federal

gun laws if they could in theory

manufacture a prohibited weapon in

eight hours in a professional shop with

metallurgical expertise.

VanDerStok, 86 F.4th at 208 (Oldham, J., concurring).

If bump stocks can turn an AR-15 into a machinegun

without changing the firearm’s internals, then what

stops the ATF from deciding that an AR-15 on its own

is also “readily” made into a machinegun? After all,

the conversion of an AR-15 into an automatic firearm

takes less than eight hours and can be accomplished

relatively quickly with a drill press and jig.

Petitioners’ allies likely see this possibility too, and

they welcome it. See Amicus Br. of Chi., et al. 33

(“Congress enacted the machine gun ban, first and

foremost, to protect law enforcement officers. Banning

bump stocks furthers that purpose, as well … assault

rifles, like AR15s, already pose a grave threat to law

enforcement officers…”); Amicus Br. of Giffords L. Ctr.

8 (“Semi-automatic rifles and automatic rifles have

few mechanical differences.”); Amicus Br. of Am. Med.

Ass’n, et al. 10 (“[Semiautomatic weapons] are not

7

designed for sport or self-defense. They are weapons

of war and have no place in civilian hands.”).

No doubt that if this Court rules for Petitioners, all

these amici (and others) would lobby the ATF to

expand the definition of “machinegun” to include

common semiautomatic rifles. Even if it is true that

ATF has no current plans to try to ban semiautomatic

firearms, it is no stranger to flipping its position, as it

did on the bump stock issue and the pistol brace issue.

See Mock v. Garland, 2023 WL 6457920, at *2 (N.D.

Tex. Oct. 2, 2023). “The agency used to tell everyone

that bump stocks don’t qualify as ‘machineguns.’ Now

it says the opposite. The law hasn’t changed, only an

agency’s interpretation of it.” Guedes v. Bureau of

Alcohol, Tobacco, Firearms & Explosives, 140 S. Ct.

789, 790 (2020) (Gorsuch, J., statement respecting

denial of certiorari). The ATF flipped its position on

bump stocks because a President demanded it, and it

may do the same on the legality of rifles like the AR15. “[T]hese days it sometimes seems agencies change

their statutory interpretations almost as often as

elections change administrations.” Id.

Given this clear danger, it is imperative that if the

definition of “machinegun” is to be expanded at all,

Congress should be the one expanding it, not the

courts and certainly not government agencies like the

ATF.

8

II. THE SEVENTH CIRCUIT’S DECISION IN BEVIS V.

CITY OF NAPERVILLE PROVES AMICI’S FEARS ARE

WELL-FOUNDED

A. The Bevis court held that semiautomatic

firearms, like AR-15s, are not protected

because they are “indistinguishable” from

M16s, which are used for military

purposes.

Granting ATF such broad rulemaking authority

and twisting the boundaries set by Congress would

not only give unprecedented control to the bureau to

reclassify firearms, but it would also effectively gut

the Court’s holdings confirming that firearms

commonly owned for lawful purposes such as selfdefense2 are constitutionally protected. District of

Columbia v. Heller, 554 U.S. 570, 624 (2008).

2 After New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022), some courts have (wrongly) held that only

those firearms most useful for self-defense have any Second

Amendment protection. See, e.g., Or. Firearms Fed’n v. Kotek

Or. All. for Gun Safety, 2023 WL 4541027, at *30 (D. Or. July

14, 2023) (acknowledging, but disregarding, that “there may be

lawful purposes other than self-defense for which an individual

can use a firearm”). And though semiautomatic rifles, like the

AR-15, are commonly owned for self-defense, they are also used

for other lawful purposes. See William English, 2021 National

Firearms Survey: Updated Analysis Including Types of

Firearms Owned 33 (2022), available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4109494.

Those purposes must also be protected, as several courts

and judges have observed. See, e.g., District of Columbia v.

Heller, 554 U.S. 570, 624 (2008) (discussing “lawful purposes

like self-defense,” thereby implying the existence of other lawful

purposes); Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir.

9

The ATF would be aided in doing so by a recent

ruling out of the Seventh Circuit upholding a ban on

common rifles, pistols, and shotguns. See Bevis, 85

F.4th 1175. The Bevis court held that the banned

firearms are not even “arms” under the Second

Amendment, ignoring that “the Second Amendment

extends, prima facie, to all instruments that

constitute bearable arms, even those that were not in

existence at the time of the founding.” Heller, 554 U.S.

at 582. The court reached that flawed conclusion by

distinguishing between firearms used by civilians,

and those used by the military, Bevis, 85 F.4th at

1179, a tactic employed by some amici in support of

Petitioners here. See, e.g., Amicus Br. of Am. Med.

Ass’n, et al. 23 (“Dr. Sankoff believes militarized

weapons, such as the AR-15 and attachments to such

weapons that increase the rate at which they can fire

have no place in a civilized society and should not be

sold to civilians.”).

And unlike this case in which “nobody, not even the

Government, contends that semi-automatic rifles are

2011) (striking down Chicago ordinance that barred firing

ranges within city limits, and stating that “[t]he right to possess

firearms for protection implies a corresponding right to acquire

and maintain proficiency in their use.”); Heller v. District of

Columbia, 670 F.3d 1244, 1260 (2011) (“Of course, the [Supreme

Court] also said the Second Amendment protects the right to

keep and bear arms for other ‘lawful purposes,’ such as hunting

....”); Friedman v. City of Highland Park, 577 U.S. 1039, 103940 (2015) (Thomas, J., and Scalia, J., dissenting) (discussing

other lawful purposes such as hunting and target shooting).

Indeed, if a state could ban any firearms except those most

commonly used for self-defense, then many hunting rifles, as

well as long-barrel shotguns, could be banned without violating

the Second Amendment.

10

machineguns,” Pet’rs’ App. 31a, the Seventh Circuit

concluded that the semiautomatic AR-15 and the

select-fire M16 were virtually indistinguishable:

Indeed, the AR-15[3] is almost the

same gun as the M16 machinegun.

The only meaningful distinction, as we

already have noted, is that the AR-15

has only semiautomatic capability

(unless the user takes advantage of

some simple modifications that

essentially make it fully automatic),

while the M16 operates both ways.

Both weapons share the same core

design, and both rely on the same

patented operating system

The similarity between the AR-15

and the M16 only increases when we

take into account how easy it is to

modify the AR-15 by adding a ‘bump

stock’ (as the shooter in the 2017 Las

Vegas event had done) or auto-sear to

it, thereby making it, in essence, a

fully automatic weapon.

Bevis, 85 F.4th at 1195-96. While this Court’s decision

in Staples v. United States seems to preclude this

argument, the Seventh Circuit gave that case short

shrift, somehow claiming that nothing in Staples—a

3 The Seventh Circuit only focused on AR-15s, even though

the ban applies to hundreds of different rifles, pistols, and

shotguns. See Bevis, 85 F.4th at 1183 (“[W]e will refer often to

the AR-15 as a paradigmatic example of the kind of weapon the

statute covers. We use it only illustratively, however; our

analysis covers everything mentioned in the Act.”).

11

case that held that AR-15s are widely accepted as

lawful possessions, 511 U.S. at 612—is contrary to its

ruling, Bevis, 85 F.4th at 1195. The panel then

asserted that there was a supposed “long tradition,

unchanged from the time when the Second

Amendment was added to the Constitution,

supporting a distinction between weapons and

accessories designed for military or law-enforcement

use, and weapons designed for personal use. Id. at

1202.

B. The Bevis decision and the “military veto”

it establishes ignore both common sense

and our nation’s historical tradition.

The Seventh Circuit’s ruling is as ahistorical as it

is unprincipled, and it provides a critical warning to

this Court against allowing the ATF to abuse loosened

legal definitions. There is not, and has never been, a

tradition that firearms may be banned merely because

they are also used by the military. The supposed

“distinction between military and civilian weaponry”

the Seventh Circuit insisted on, id. at 1201, is an

illusion.

As the Bevis dissent pointed out, the military uses

many firearms that are also commonly used by

civilians. “Under the majority opinion, the military’s

decision to award Beretta a military contract for the

Beretta 92 would take the firearm out of the ‘Arms’

protected by the Second Amendment.” Id. at 1226

(Brennan, J., dissenting). But we need not speculate

about the Beretta 92 as the majority made it clear that

the M17 and M18 pistols could be banned: “And these

comments apply with equal force to the high-capacity

handguns that are restricted by these laws. The latter

12

are almost indistinguishable from the 17- or 21-round

M17 and M18 pistols that are standard-issue in the

military.” Id. at 1196. This is remarkable because the

M17 and M18 pistols are military versions of the Sig

P320 line of handguns, which began in the civilian

market and only later were adopted by the military.

See Matthew Cox and Hope Hodge Seck, Army Picks

Sig Sauer’s P320 Handgun to Replace M9 Service

Pistol, Military.com (January 19, 2017), https://www.

military.com/daily-news/2017/01/19/army-picks-sigsauer-replace-m9-service-pistol.html (last accessed

January 23, 2024). Thus, to the extent the military

adopts popular firearms already in the civilian

market, the Seventh Circuit’s ruling effectively

eviscerates Heller’s basic holding that firearms

overwhelmingly chosen by American society for lawful

purposes may not be banned. Heller, 554 U.S. at 628.

It even undermines Heller’s more specific

determination that handguns in particular may not be

banned because “[w]hatever the reason, handguns are

the most popular weapon chosen by Americans for

self-defense in the home…” Id. at 629.

Muddying the waters further, appellees in Bevis

presented evidence below of the U.S. government

itself selling surplus military firearms with

magazines over ten rounds as part of the Civilian

Marksmanship Program. Certainly, it cannot be that

“the military’s decommissioning and sale of its surplus

weapons [means] that the Second Amendment right

might spring into and out of life.” Bevis, 85 F.4th at

1226 (Brennan, J., dissenting). More comically, the

Seventh Circuit panel majority’s “rule” would make

muskets unprotected in the Founding Era because

13

they were the standard small arm used by both sides

of the Revolutionary War. That can’t be correct.

The Seventh Circuit’s ridiculous rule that once the

military adopts a firearm it is suddenly off limits to

civilians is also echoed by Petitioners and some of

their amici, albeit with different terminology.

Petitioners argue, for example, that “[a] bump stock

allows a shooter to fire at rates of up to 800 bullets per

minute,[4] comparable to the rates of the conventional

machineguns issued to American soldiers.” Pet’rs’ Br.

41. But the fact that American soldiers also use a

firearm (or a somewhat similar one), without more, is

not enough to justify banning it.

None of this is to say that weapons used by the

military that are shown to be dangerous and unusual

are protected. As one court explained, weapons “useful

solely for military purposes” may be outside the scope

of the Second Amendment. Duncan v. Bonta, 2023 WL

6180472, at *17 (S.D. Cal. Sept. 22, 2023) (emphasis

added). But the firearms banned by Illinois and a

handful of other jurisdictions with “assault weapon”

bans5 are not rocket launchers or warheads. They are

ordinary firearms that are extremely common among

civilians, so there is no serious argument that they are

only useful for military purposes. And they may not be

4 The Seventh Circuit incorrectly claimed that the rate of fire

of a semiautomatic AR-15 is 300 rounds per minute, which the

court said was not a relevant difference from the M16’s 700

rounds per minute. Bevis, 85 F.4th at 1196. As the dissent

pointed out, the AR-15’s actual rate of fire is closer to around 4560 rounds per minute. Id. at 1224 (Brennan, J., dissenting).

5 Several of those jurisdictions are amici in this matter. See,

e.g., Amicus Br. of Chi., et al.; Amicus Br. of D.C., et al.

14

banned just because some of them (though ironically,

not the AR-15) might also be used by the military.6

More importantly, excluding common firearms

from the Second Amendment just because they are

also suitable for military use, without more,

disregards our historical tradition. The Second

Amendment was written by people who had just

revolted against a tyrannical government. They

sought to guarantee the People had a final recourse

should the new government they were forming turn

tyrannical. Tench Coxe, a delegate to the

Constitutional Convention, wrote that “[w]hereas civil

rulers, not having their duty to the people duly before

them, may attempt to tyrannize, … the people are

confirmed by the article in their right to keep and bear

their private arms.” Remarks on the First Part of the

Amendments to the Federal Constitution, under the

pseudonym “A Pennsylvanian” in the Philadelphia

Federal Gazette, June 18, 1789, p. 2 col. 1 (as quoted

in the Federal Gazette, June 18, 1789). Coxe similarly

wrote that “Congress have no power to disarm the

militia. Their swords, and every other terrible

implement of the soldier, are the birthright of an

American.” Tench Coxe, Letter to the Philadelphia

Gazette, 20 February 1788.7

This view dominated the Founding Era and 19th

century. For example, in a speech to the House of

6 And of course, no military uses bump stocks.

Coxe reaffirmed these views in 1813, writing that

Americans “have all the right, even in profound peace, to

purchase, keep and use arms of every description.” Samuel

Whiting, et al., Second American Edition of the New Edinburgh

Encyclopædia, Volume 1 Part 2, at 652 (1813).

7

15

Representatives, Abolitionist Representative Edward

Wade declared that the “right to ‘keep and bear arms,’

is thus guarantied, in order that if the liberties of the

people should be assailed, the means for their defence

shall be in their own hands.” Rep. Edward Wade of

Ohio, in the House of Representatives, Aug. 2, 1856.

Senator Charles Sumner’s “The Crime Against

Kansas” speech likewise bristled at the notion that

opponents of slavery in Kansas should be disarmed of

their cutting-edge Sharps rifles by the pro-slavery

government. He exclaimed that “[n]ever was this

efficient weapon more needed in just self defence, than

now in Kansas, and at least one article in our National

Constitution must be blotted out, before the complete

right to it can in any way be impeached.” Charles

Sumner, The Kansas Question, Senator Sumner’s

Speech, Reviewing the Action of the Federal

Administration Upon the Subject of Slavery in Kansas

22-23 (Cincinnati, G.S. Blanchard, 1856).

Similarly, Thomas Cooley, a longtime Michigan

Supreme Court Justice and legal scholar, wrote that

“[t]he right declared was meant to be a strong moral

check against the usurpation and arbitrary powers of

rulers, and as necessary and efficient means of

regaining rights when temporarily overturned by

usurpation.” Thomas M. Cooley, LL.C., The General

Principles of Constitutional Law in the United States

of America 298 (1898).

And many commentators of the period specifically

singled out the “arms of modern warfare” as what the

Second Amendment protected most of all. See, e.g.,

Henry Campbell Black, Handbook of American

Constitutional Law 403-04 (1895) (“The citizen has at

16

all times the right to keep arms of modern warfare”);

John Norton Pomeroy, An Introduction to the

Constitutional Law of the United States 152 (1868)

(“[A] militia would be useless unless the citizens were

enabled to exercise themselves in the use of warlike

weapons.”).

Dozens of other examples abound. See C.D. Michel

& Konstadinos Moros, Restrictions That ‘Our

Ancestors Would Never Have Accepted’: The Historical

Case Against Assault Weapon Bans, 24 Wyo. L. Rev.

(forthcoming 2024), https://ssrn.com/abstract=456

8820. But there is no need to belabor the point. There

can be no historical tradition of barring common arms

just because they may be useful in combat, when one

of the main purposes of the Second Amendment was

to be a “doomsday provision” for the People to protect

themselves from a tyrannical government. See

Silveira v. Lockyer, 328 F.3d 567, 570 (9th Cir. 2003)

(Kozinski, J., dissenting from denial of rehearing en

banc). “Once one understands the history of tyrants

resorting to taking away people’s arms to suppress

political opposition, Heller explains, one can see that

the militia clause fits perfectly with the operative

clause.” Duncan, 2023 WL 6180472, at *6.

This Court has acknowledged that original

purpose, commenting that history showed “that the

way tyrants had eliminated a militia consisting of all

the able-bodied men was not by banning the militia

but simply by taking away the people’s arms, enabling

a select militia or standing army to suppress political

opponents.” Heller, 554 U.S. at 598.

17

C. While this is not a Second Amendment

case, a decision in Petitioners’ favor

threatens the right to bear arms.

Amici understand that this is not a Second

Amendment case and that their views might not be

vindicated until another day,8 but they have taken

this brief trip through history to show how a seriously

flawed appellate ruling provides the tinder to spark a

major constitutional conflagration if the ATF’s powers

are expanded with this ruling. Using the Seventh

Circuit’s logic in Bevis, it does not take much

imagination to see how the ATF could create a rule

saying semiautomatic firearms like the AR-15 are

“readily restored” to machineguns. ATF could swat

away any Second Amendment concerns by citing the

Seventh Circuit’s opinion that “[b]ecause [the AR-15]

is indistinguishable from [the M16], the AR-15 may be

treated in the same manner without offending the

Second Amendment.” Bevis, 85 F.4th at 1197.

With a bump stock ban upheld by this Court, the

ATF could also argue that “a shooter can bump fire an

8 The Court should review such a case very soon, given that

the right to bear arms is currently languishing in hostile circuit

courts dead-set on undermining the right to keep and bear arms.

This includes two cases that had been remanded by this Court

following Bruen. See Duncan v. Bonta, 83 F.4th 803, 808 (9th Cir.

2023) (Bumatay, J., Ikuta, J., R. Nelson, J., and VanDyke, J.,

dissenting) (“If the protection of the people’s fundamental rights

wasn’t such a serious matter, our court’s attitude toward the

Second Amendment would be laughably absurd.”); see also

Bianchi v. Brown, No. 21-1255, 2024 WL 163085, at *1 (4th Cir.

Jan. 12, 2024) (Fourth Circuit taking matter en banc before the

appellate panel had issued a ruling, thirteen months after oral

argument with that panel.).

18

ordinary semi-automatic rifle even without a bump

stock,” making it the same thing whether or not a

bump stock is present. Pet’rs’ App. 31a. The Seventh

Circuit certainly teed up that argument for the ATF

in stating that “[i]f the AR-15 by itself is not a

machinegun because it fires ‘only’ at the rate of 300

rounds per minute, and the auto-sear is also not a

machinegun because it is just a component that holds

a hammer in the cocked position, that would be a road

map for assembling machineguns and avoiding

legitimate regulations of their private use and carry.”

Bevis, 85 F.4th at 1196.

This Court should not give the ATF further

support by eroding the definition of “machinegun” to

allow it to encompass bump stocks. Instead, it should

affirm the Fifth Circuit’s ruling because it is not the

job of courts “to determine our nation’s public policy.”

Pet’rs’ App. 48a. The Court should also reaffirm

Staples (and rebuff the logic of Bevis) by confirming

that AR-15s and other common semiautomatic

firearms have “traditionally been accepted as lawful

possessions.” Staples, 511 U.S. at 612.

CONCLUSION

The ATF may not do an end-run around Congress

just because the President wants to ban something

that does not meet the statutory definition of a

“machinegun.” It is for the legislative branch to

determine whether the definition of machinegun

needs to be adjusted, not an unelected federal agency.

In ruling on this case, the Court should keep in

mind the greater context of Second Amendment rights

as well as the harmful precedents some lower courts

19

are establishing that allow the banning of common

semiautomatic firearms. Expanding the definition of

“machinegun” as the ATF desires would put these

common firearms on the chopping block by putting the

very power that Bruen sought to wrestle back from

inferior courts into the hands of a regulatory agency.

This Court must not grant the executive branch the

unfettered ability to breach the Second Amendment’s

“unqualified command.” Bruen, 597 U.S. at 17 (citing

Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n. 10

(1961)).

Respectfully submitted,

C.D. Michel

Counsel of Record

Konstadinos T. Moros

Michel & Associates, P.C.

180 E. Ocean Blvd., Ste. 200

Long Beach, CA 90802

Telephone: (562) 216-4444

cmichel@michellawyers.com

Counsel for Amicus Curiae