Petition for Writ of Certiorari — Javier Herrera, Petitioner v. Kwame Raoul, Attorney General of Illinois, et al.
Supreme Court briefFeb 12, 2024
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
Appendix A Opinion, United States Court of
Appeals for the Seventh Circuit,
Herrera v. Raoul, No. 23-1793
(Nov. 3, 2023) . . . . . . . . . . . . . . . . App. 1
Appendix B Memorandum Opinion and Order,
United States District Court for the
Northern District of Illinois, Herrera
v. Raoul, No. 1:23-cv-532
(Apr. 25, 2023). . . . . . . . . . . . . . App. 109
Appendix C Order Denying Rehearing, United
States Court of Appeals for the
Seventh Circuit, Herrera v. Raoul,
No. 23-1793
(Dec. 11, 2023). . . . . . . . . . . . . . App. 143
Appendix D Relevant Constitutional and Statutory
Provisions . . . . . . . . . . . . . . . . . App. 145
U.S. Const. amend. II . . . . . . . . App. 145
U.S. Const. amend. XIV, §1 . . . App. 145
720 Ill. Comp. Stat. 5/24-1 . . . . App. 146
720 Ill. Comp. Stat. 5/24-1.9. . . App. 148
720 Ill. Comp. Stat. 5/24-1.10. . App. 166
Cook Cnty. Ord. §54-211 . . . . . App. 169
Cook Cnty. Ord. §54-212 . . . . . App. 178
Cook Cnty. Ord. §54-214 . . . . . App. 180
Chicago Mun. Ord. §8-20-010. . App. 181
Chicago Mun. Ord. §8-20-075. . App. 193
Chicago Mun. Ord. §8-20-085. . App. 194
Chicago Mun. Ord. §8-20-300. . App. 195
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Appendix E Declaration of Javier Herrera, United
States District Court for the Northern
District of Illinois, Herrera v. Raoul,
No. 1:23-cv-532
(Jan. 27, 2023). . . . . . . . . . . . . . App. 197
Appendix F Supplemental Declaration of Javier
Herrera, United States District Court
for the Northern District of Illinois,
Herrera v. Raoul, No. 1:23-cv-532
(Mar. 14, 2023) . . . . . . . . . . . . . App. 204
App. 1
APPENDIX A
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
[Filed November 3, 2023]
No. 23-1353
________________________________________________
ROBERT BEVIS, et al.,
)
Plaintiffs-Appellants,
)
)
v.
)
)
CITY OF NAPERVILLE, ILLINOIS and JASON ARRES,
)
Defendants-Appellees,
)
)
and
)
)
THE STATE OF ILLINOIS,
)
Intervening Appellee.
)
_______________________________________________ )
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:22-cv-04775 — Virginia M. Kendall, Judge.
App. 2
No. 23-1793
________________________________________________
JAVIER HERRERA,
)
Plaintiff-Appellant,
)
)
v.
)
)
KWAME RAOUL, et al.,
)
Defendants-Appellees.
)
_______________________________________________ )
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:23-cv-00532 — Lindsay C. Jenkins, Judge.
No. 23-18251
________________________________________________
CALEB BARNETT, et al.,
)
Plaintiffs-Appellees,
)
)
v.
)
)
KWAME RAOUL and BRENDAN F. KELLY,
)
Defendants-Appellants.
)
_______________________________________________ )
Appeals from the United States District Court for the
Southern District of Illinois.
No. 3:23-cv-00209-SPM —
Stephen P. McGlynn, Judge.
1
Consolidated with No. 23-1826, Harrel v. Raoul (S.D. Ill. No.
3:23-cv-00141-SPM); No. 23-1827, Langley v. Kelly (S.D. Ill. No.
3:23-cv-00192-SPM); and No. 23-1828, Federal Firearms Licensees
of Illinois, et al. v. Pritzker (S.D. Ill. No. 3:23-cv-00215-SPM).
App. 3
____________________
ARGUED JUNE 29, 2023 — DECIDED NOVEMBER 3, 2023
____________________
Before EASTERBROOK, WOOD, and BRENNAN, Circuit
Judges.
WOOD, Circuit Judge. The Second Amendment to
the Constitution recognizes an individual right to “keep
and bear Arms.” Of that there can be no doubt, in the
wake of the Supreme Court’s decisions in District of
Columbia v. Heller, 554 U.S. 570 (2008); McDonald v.
City of Chicago, 561 U.S. 742 (2010); Caetano v.
Massachusetts, 577 U.S. 411 (2016) (per curiam); and
New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct.
2111 (2022). But as we know from long experience with
other fundamental rights, such as the right to free
speech, the right peaceably to assemble, the right to
vote, and the right to free exercise of religion, even the
most important personal freedoms have their limits.
Government may punish a deliberately false fire alarm;
it may condition free assembly on the issuance of a
permit; it may require voters to present a valid
identification card; and it may punish child abuse even
if it is done in the name of religion. The right enshrined
in the Second Amendment is no different.
The present cases, which we have consolidated for
disposition, relate to the types of “Arms” that are
covered by the Second Amendment.2 This presents a
line-drawing problem. Everyone can agree that a
2
For ease of exposition, we will use the term Arms to refer to those
weapons that fall within the scope of the Second Amendment.
App. 4
personal handgun, used for self-defense, is one of those
Arms that law-abiding citizens must be free to “keep
and bear.” Everyone can also agree, we hope, that a
nuclear weapon such as the now-retired M388 Davy
Crockett system, with its 51-pound W54 warhead, can
be reserved for the military, even though it is light
enough for one person to carry.3 Many weapons,
however, lie between these extremes. The State of
Illinois, in the legislation that lies at the heart of these
cases, has decided to regulate assault weapons and
high-capacity magazines—a decision that is valid only
if the regulated weapons lie on the military side of that
line and thus are not within the class of Arms protected
by the Second Amendment. Several municipalities have
done the same. The plaintiffs in these cases challenge
that conclusion. Using the tools of history and tradition
to which the Supreme Court directed us in Heller and
Bruen, we conclude that the state and the affected
subdivisions have a strong likelihood of success in the
pending litigation. We therefore affirm the decisions of
the district courts in appeals No. 23-1353 and 23-1793
refusing to enjoin these laws, and we vacate the
injunction issued by the district court in appeals
No. 23-1825, 23-1826, 23-1827, and 23-1828.
3
See Matthew Seelinger, The M28/M29 Davy Crockett Nuclear
Weapon System, T HE A RMY H ISTORICAL F OUNDATION ,
https://armyhistory.org/the-m28m29-davy-crockett-nuclearweapon-system/; see also Jeff Schogol, The Story of the ‘Davy
Crockett,’ a Nuclear Recoilless Rifle Once Fielded by the US Army,
TASK & PURPOSE (Sept. 19, 2022), https://taskandpurpose.
com/history/army-davy-crockett-tactical-nuclear-weapon/.
App. 5
I. Background
A. The Act
At the center of these appeals lies a new statute in
Illinois that took effect on January 10, 2023—a
measure called the Protect Illinois Communities Act,
Pub. Act 102-1116 (2023) (“the Act”). Some of the
consolidated cases also implicate three municipal laws
that cover much of the same ground, though the details
vary: Cook County Ordinances No. 54-210 to 54-215;
City of Chicago Municipal Ordinances 8-20-010 to 8-20100; and City of Naperville Ordinances No. 3-19-1 to 319-3. We make note of the municipal laws only when
their specific provisions affect our analysis. For the
interested reader, the chart in the Appendix to this
opinion summarizes the relevant differences among
these enactments.
The Act is a sprawling piece of legislation made up
of 99 sections that cover a vast array of regulatory and
record-keeping matters, along with the provisions of
interest here. The Act’s wide scope led to a challenge in
Illinois’s courts for failing to comply with state-law
requirements such as the single-subject rule, the threereadings requirement, and the ban on special
legislation. See Caulkins v. Pritzker, 2023 IL 129453
(Aug. 11, 2023). The state supreme court upheld the
Act against those contentions, and it also ruled that the
Act did not violate the state constitution’s equal
protection clause. It did not reach any argument about
the Second Amendment, because it found that the
plaintiffs had waived any reliance on that theory. The
plaintiffs in these cases have not argued that the Act is
invalid under state law.
App. 6
The critical part of the Act for our purposes is its
treatment of so-called assault weapons and largecapacity magazines. Those sections institute something
close to a ban on “assault weapons,” through the Act’s
general prohibitions of the sale, possession, and use of
a defined set of weapons. The Act also bans largecapacity magazines. The plaintiffs have not specified
exactly which provisions of the Act they believe are
unconstitutional under the Second Amendment, but we
assume that their principal targets are 720 ILCS 5/241.9 and 5/24-1.10. Section 5/24-1.9 addresses the
“[m]anufacture, possession, delivery, sale, and
purchase of assault weapons, .50 caliber rifles, and .50
caliber cartridges,” and section 5/24-1.10 deals with
“[m]anufacture, delivery, sale, and possession of large
capacity ammunition feeding devices.”
The Act defines “assault weapon” using language
that is largely borrowed from the expired Federal
Assault Weapons Ban, which was a subsection of the
Violent Crime Control and Law Enforcement Act of
1994, Pub. L. No. 103-322, 108 Stat. 1796.4 The Illinois
Act bans certain semiautomatic rifles and pistols. A
semiautomatic rifle falls under the Act’s proscriptions
if it has the capacity to accept a detachable magazine
and one or more of the following features: a pistol grip
or thumbhole stock; any feature capable of functioning
as a protruding grip for the non-trigger hand; a folding,
telescoping, thumbhole, or detachable stock or a stock
that otherwise enhances the concealability of the
weapon; a flash suppressor; a grenade launcher; or a
4
The more formal name of the relevant part of the law was the
Public Safety and Recreational Firearms Use Protection Act.
App. 7
barrel shroud. 720 ILCS 5/24-1.9(a)(1)(A). The
definition also includes a semiautomatic rifle with a
fixed magazine capacity of greater than 10 rounds,
except those that accept only .22 caliber rimfire
ammunition. Id. 5/24-1.9(a)(1)(B). Finally, there is a
lengthy list of particular models that fall within the
scope of the statute. See 5/24-1.9(a)(1)(J). Subpart (i) of
that section covers all AK weapons, and subpart
(ii) covers all AR types. In the remainder of this
opinion, we 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.
The Act makes it unlawful for any person within
Illinois knowingly to “manufacture, deliver, sell,
import, or purchase … an assault weapon, assault
weapon attachment, .50 caliber rifle, or .50 caliber
cartridge.” Id. 5/24-1.9(b). (Unless the context requires
otherwise, from this point we use the term “assault
weapon” to cover all four covered items, in the interest
of readability.) With some exceptions, the Act also
makes it unlawful as of January 1, 2024, for any person
within the state knowingly to “possess an assault
weapon.” Id. 5/24-1.9(c).
There are two significant exceptions to these
prohibitions. Using the terminology the Supreme Court
of Illinois adopted in Caulkins, the first is for “trained
professionals” and the second is for “grandfathered
individuals.” 2023 IL 129453 at ¶ 1. The list of trained
professionals, set forth in 5/24-1.9(e), includes peace
officers; qualified active and retired law-enforcement
officers; prison wardens and “keepers”; members of the
App. 8
Armed Services, Reserves, or Illinois National Guard;
nuclear facility guards; and licensed private security
personnel. Id. 5/24-1.9(e)(1)–(7). The “grandfather”
provision can be found at 5/24-1.9(d). It states that the
Act’s prohibitions do “not apply to a person’s possession
of an assault weapon … if the person lawfully
possessed” that weapon as of the effective date of the
law and then the person “provide[s] in an endorsement
affidavit, prior to January 1, 2024, under oath or
affirmation” certain specified information to the Illinois
State Police. Id. 5/24-1.9(d)(1)–(3). A completed
endorsement affidavit “creates a rebuttable
presumption that the person is entitled to possess and
transport the assault weapon.” Id. 5/24-1.9(d), at ¶ 2.
The Act restricts the places where authorized persons
may possess their weapons to the following: (1) private
property owned or controlled by the person; (2) other
private property, with the express permission of the
owner or controller; (3) premises of a licensed firearms
dealer or gunsmith for lawful repairs; (4) licensed firing
ranges or sport shooting competition venues; and (5) in
transit to or from any of those locations, if the weapon
is unloaded and in a container. Id. 5/24-1.9(d), at
¶ 3(1)–(5). The parties have not focused on these
locational restrictions, and so neither will we.
Section 5/24-1.10 sets out the rules for largecapacity ammunition feeding devices. They are defined
as a magazine (or similar mechanism) that can accept
“more than 10 rounds of ammunition for long guns and
more than 15 rounds of ammunition for handguns.” Id.
5/24-1.10(a), at ¶ 3(1). This provision also grandfathers
in those who lawfully possessed a large-capacity
magazine before the effective date of the Act, so long as
App. 9
the device is used in a permitted place. Id. 5/241.10(d). It has an analogous set of exceptions for
trained professionals. Id. 5/24-10(d), at ¶ 1.
Broadly speaking, violations of the assault-weapon
ban are classified as felonies when the violation
involves guns or gun parts, and as misdemeanors when
the violation involves .50 caliber cartridges. Id. 5/241(b).
B. The Lawsuits
The ink was barely dry on the pages of the Act when
litigation began. Before us now are six related cases, in
which 26 plaintiffs have challenged the Act and the
three municipal ordinances we mentioned earlier. All
of the challengers contend that the legislation in
question violates their Second Amendment right to
keep and bear Arms. A brief review of the individual
cases should help keep the issues straight.
1. Bevis v. City of Naperville (No. 23-2353)
This case, filed in the Northern District of Illinois,
was brought by three parties: (1) Robert Bevis, a
Naperville resident and owner of Law Weapons, Inc.;
(2) Law Weapons, Inc., a commercial firearms store in
Naperville; and (3) the National Association for Gun
Rights. We refer to them collectively as Bevis. Once the
suit was filed and landed in Judge Kendall’s court,
Bevis’s first step was to seek a preliminary injunction
against both the Naperville ordinance and the Act.
They were unsuccessful. Applying the standard fourpart test for preliminary injunctions established in
Winter v. Natural Resources Defense Council, Inc., 555
U.S. 7, 20 (2008), Judge Kendall decided that the
App. 10
plaintiffs were unlikely to succeed on the merits. This
would have been an easy conclusion under our decision
in Friedman v. City of Highland Park, 784 F.3d 406
(7th Cir. 2015), but the judge was concerned that
Friedman’s methodology may have been undermined
by Bruen, and so she undertook a fresh analysis of the
merits using only Bruen. (We address Friedman’s
continuing vitality below.)
Judge Kendall’s efforts convinced her that “[t]he
history of firearm regulation … establishes that
governments enjoy the ability to regulate highly
dangerous arms (and related dangerous accessories).”
Bevis v. City of Naperville, No. 22 C 4775, 2023 WL
2077392, at *14 (N.D. Ill. Feb. 17, 2023). She took
particular note of longstanding regulations on Bowie
knives and other “melee weapons.” Id. at *10–11. Next,
she found that assault weapons fit within this tradition
because they pose “an exceptional danger” compared
with “standard self-defense weapons such as
handguns.” Id. at *14. Critically for our purposes, after
citing statistics about the lethality and injury rates of
assault weapons, id., she highlighted the fact that
“[a]ssault rifles can … be easily converted to … mimic
military-grade machine guns,” id. at *15. Quoting from
the Fourth Circuit, she observed that
the very features that qualify a firearm as a
banned assault weapon—such as flash
suppressors, barrel shrouds, folding and
telescoping stocks, pistol grips, grenade
launchers, night sights, and the ability to accept
bayonets and large-capacity magazines—serve
specific, combat-functional ends.
App. 11
Id. (quoting Kolbe v. Hogan, 849 F.3d 114, 137 (4th Cir.
2017) (en banc), abrogated on other grounds by Bruen,
142 S. Ct. at 2126–27) (cleaned up). Finally, the judge
noted that the high-capacity magazines exhibited
similar dangers. Id.
This was enough, in her view, to show that the
plaintiffs were not likely to succeed on the merits.
Quickly looking at the other three criteria for a
preliminary injunction, she also found that without a
presumption of irreparable harm related to the alleged
Second Amendment violation, plaintiffs could not
satisfy that factor. Bevis had not shown that the gun
shop would lose substantial sales because of the two
laws, and the organizational members retained other
effective weapons for self-defense. Id. at *16. Finally,
Judge Kendall concluded that neither the balance of
equities nor the public interest favored plaintiffs
sufficiently to overcome the inadequate showing on the
other issues. Id. at *17.
2. Herrera v. Raoul (No. 23-1793)
The plaintiff in our next case, Javier Herrera, is a
Chicago emergency room doctor who owns several
assault weapons and large-capacity magazines. After
the Act was passed, he filed a suit seeking both a
temporary restraining order and a preliminary
injunction against the Act, the Chicago ordinance, and
the Cook County ordinance. Unlike Bevis, he also
challenged the Act’s registration requirements (through
which the grandfathering provisions are administered).
This case was assigned to Judge Jenkins, who largely
agreed with the reasoning in Bevis. See Herrera v.
Raoul, No. 23 CV 532, 2023 WL 3074799 (N.D. Ill.
App. 12
Apr. 25, 2023). She rejected Hererra’s attempt to
distinguish Bevis on the ground that his suit focused on
the defense of his home, rather than on the public-carry
right. Although she recognized that the analogies to
Bowie knives and melee weapons were not perfect, she
noted that Bruen did not demand a “dead ringer” or a
“historical twin,” especially if there are “‘dramatic
technological changes’ or ‘unprecedented societal
concerns’ [that] may require a ‘more nuanced
approach.’” Id. at *7, *9 (quoting Bruen, 142 S. Ct. at
2133, 2132).
With respect to the need to register a covered
weapon in order to take advantage of the Act’s
grandfathering provision, Judge Jenkins first assured
herself that the question was ripe even though Herrera
had not yet taken steps to register his guns. Id. at *8.
Herrera made clear that he intended to disobey that
law, that his intended conduct “[ran] afoul of a criminal
statute,” and that the effective date of the registration
requirement was “sufficiently imminent.” Id.
(quotations omitted). On the merits, however, she
concluded that Herrera was unlikely to succeed
because historical evidence showed that the “colonies
required gun registration in a variety of ways,” such as
colonial “muster” requirements and a variety of tax
requirements, “which in essence required that firearms
be identified and disclosed to the government.” Id. at
*9. She also took note of several 19th- and 20th-century
laws as evidence of a “continuing tradition of state and
national registration requirements.” Id. She found
support for her ruling in the Bruen Court’s comment
that “nothing in our analysis should be interpreted to
suggest the unconstitutionality of existing ‘shall- issue’
App. 13
licensing laws.” Id. at *10 (quoting Bruen, 142 S. Ct. at
2138 n.9 (cleaned up)).
Although lack of likely success on the merits
pointed strongly toward denial of preliminary
injunctive relief, Judge Jenkins also looked briefly at
the other three factors and found that they pointed in
the same direction. She rejected the argument that
there is an established presumption of irreparable
harm for all Second Amendment challenges. Id. at *11.
She was also unpersuaded by Herrera’s argument that
the laws prevented him from protecting himself in his
home and attending his monthly SWAT training
(because of the commute time to retrieve his assault
weapons from an out-of-county location). Herrera
owned other compliant guns suitable for self-defense,
and he had managed the commute since 2018. Id. at
*12. Lastly, she found that neither the public interest
nor the equities pushed the needle far enough to justify
an injunction. Id. at *13.
3. Barnett v. Raoul (No. 23-1825)
The perspective reflected in the third case, which
arose in the Southern District of Illinois, is quite
different from the first two. In Barnett and the three
other cases that were consolidated with it, the
plaintiffs included individual gun owners, commercial
firearms dealers, and various organizations devoted to
protecting and enhancing Second Amendment rights.
Like their counterparts in the Northern District, these
plaintiffs sought a preliminary injunction against the
Act. Unlike the others, they succeeded. Judge McGlynn
concluded that because the plaintiffs had brought a
facial challenge to the Act, “the entirety of [the Act] as
App. 14
codified will be enjoined.” Barnett v. Raoul, No. 3:23-cv00209-SPM (Lead Case), 2023 WL 3160285, at *2 (S.D.
Ill. Apr. 28, 2023). (We put to one side the fact that
there are many provisions of the Act that have nothing
to do with gun ownership or regulation. See generally
Pub. Act 102-1116 (2023). Presumably the judge did not
mean to enjoin them, but if that is so, then the
injunction does not comply with Federal Rule of Civil
Procedure 65. That rule requires an injunction to
indicate clearly what is forbidden or mandated—a rule
necessitated by the fact that injunctions are
enforceable by contempt. We need not explore this
further, given our ultimate conclusion in these
appeals.)
With obvious reference to the two sections of the Act
that address assault weapons and high-capacity
magazines, Judge McGlynn chose to start with the
issue of irreparable injury, rather than likelihood of
success on the merits. He found that there is a
presumption of irreparable harm when plaintiffs mount
a facial challenge under the Second Amendment, and
even if there were not, these plaintiffs had shown
irreparable injury because the restrictions on their
ability to buy or sell the weapons and accessories
covered by the Act limited their right to armed selfdefense. 2023 WL 3160285, at *4–5.
The judge then moved on to likelihood of success on
the merits. He rejected the defendants’ arguments that
many of the Act’s provisions regulated only accessories
(such as threaded barrels and pistol grips), which in
themselves were not the Arms protected by the Second
Amendment. Those items were “important corollar[ies]
App. 15
to the meaningful exercise of the core right to possess
firearms for self-defense.” Id. at *8 (quoting Ezell v.
City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011)). He
then moved on to consider whether the Act was
“consistent with this Nation’s historical tradition of
firearm regulation.” Id. at *9. For this purpose, he
assigned to the defendants the burden of
“(1) demonstrat[ing] that the ‘arms’ in [the Act] are not
in ‘common use;’ and (2) ‘identify[ing] a wellestablished and representative historical analogue’ to
[the Act].” Id. (quoting Bruen, 142 S. Ct. at 2128, 2133).
He rejected the defendants’ argument that the weapons
had to be in common use for self-defense. The
defendants failed to carry their burden, he held,
because they “focused almost entirely on AR-15 rifles
and their commonality or lack thereof” instead of the
many other weapons and accessories covered by the
Act. Id. at *10. Accepting an argument of the plaintiffs
in the cases now before us (as well as their amici
curiae), the judge held that AR-15s and large-capacity
magazines are “in common use” because a large
number of people own them. Id.
Wrapping up, the judge characterized the
defendants’ proposed historical analogues as inapt,
because they were simply concealed-carry regulations,
not outright bans on possession. Id. at *11. The balance
of harms, in his view, decidedly favored the plaintiffs,
as (in his words) “there can be no harm to a
government agency when it is prevented from enforcing
an unconstitutional statute,” id. (cleaned up and
quotation omitted), and he saw no evidence in the
record indicating how the Act would help Illinois
communities. He noted that the Act “was purportedly
App. 16
enacted in response to the Highland Park [mass]
shooting,” id. at *12, but that fact was not enough to
overcome the injury it inflicted.
II. Governing Law
A. Preliminary Injunction Standard
As our account of the proceedings in the district
courts shows, we are not here today to rule definitively
on the constitutionality of the Act or any of the
municipal ordinances. The only issue before us
concerns preliminary injunctive relief. The Bevis and
Herrera courts denied motions for such an injunction,
which would have suspended the operation of 720 ILCS
5/24-1.9 and 5/24-1.10 (and the corresponding
Naperville, Chicago, and Cook County ordinances), and
the Barnett court granted the injunction (ostensibly
against the entire Act, as we mentioned). We entered
a stay of the Barnett injunction pending the resolution
of these interlocutory appeals, which are authorized by
28 U.S.C. § 1292(a)(1); the order stipulated that the
stay would remain in effect “until these appeals have
been resolved and the court’s mandate has issued.”
As we mentioned earlier, the leading Supreme
Court decision establishing the standard for granting
preliminary injunctive relief is Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7 (2008). The
Court summarized the pertinent requirements as
follows:
A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that
App. 17
the balance of equities tips in his favor, and that
an injunction is in the public interest.
Id. at 20. It elaborated on these factors in a later case
dealing with the criteria for staying a court decision,
Nken v. Holder, 556 U.S. 418 (2009), noting there that
“[t]here is substantial overlap between [the criteria for
a stay] and the factors governing preliminary
injunctions.” Id. at 434 (citing Winter, 555 U.S. at 24).
The two most important considerations are likelihood
of success on the merits and irreparable harm. Id. With
respect to the former, the Court said that “[i]t is not
enough that the chance of success on the merits be
‘better than negligible.’” Id. (quoting and disapproving
Sofinet v. INS, 188 F.3d 703, 707 (7th Cir. 1999)). Nor
is a mere possibility enough. Id. As we put it in Illinois
Republican Party v. Pritzker, 973 F.3d 760, 763 (7th
Cir. 2020), although the party seeking the injunction
need not demonstrate likelihood of success by a
preponderance of the evidence, that party must
nevertheless make a “strong” showing that reveals how
it proposes to prove its case. Similarly, a mere
possibility of irreparable harm will not suffice. See
Nken, 556 U.S. at 434–35; Winter, 555 U.S. at 22.
Decisions such as Winter and Nken reflect the fact
that “[a] preliminary injunction is an extraordinary
remedy never awarded as of right.” Winter, 555 U.S. at
24. The party seeking the injunction bears the burden
of showing that this type of relief is warranted. Nken,
556 U.S. at 433–34. We must also bear in mind, when
a party is seeking to enjoin a statute, that legislative
enactments are entitled to a presumption of
constitutionality. See Flemming v. Nestor, 363 U.S.
App. 18
603, 617 (1960) (quoting Fletcher v. Peck, 10 U.S. (6
Cranch) 87, 128 (1810)). Though we carefully evaluate
any claim that a statute violates the Constitution, we
assume that the legislative body—whether Congress or
a state legislature—was aware of constitutional
limitations and endeavored to follow them.
Finally, we note that a hybrid standard of review
applies to interlocutory review of a preliminary
injunction: “we review the district court’s findings of
fact for clear error, its legal conclusions de novo, and its
balancing of the factors for a preliminary injunction for
abuse of discretion.” Doe v. University of Southern
Indiana, 43 F.4th 784, 791 (7th Cir. 2022) (brackets
and quotation omitted).
B. The Second Amendment
The basic contours of the second article of the Bill of
Rights have become familiar, and so we will only
summarize them here. In a crisp, if not enigmatic, way,
it says this: “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. For many years, both the Supreme
Court and scholars thought that there was a relation
between the prefatory clause, which refers to the
Militia, and the operative clause, which refers to the
right to keep and bear Arms. See, e.g., ROBERT H.
BORK, SLOUCHING TOWARDS GOMORRAH: MODERN
LIBERALISM AND AMERICAN DECLINE 166 (rev. ed. 2003).
But in Heller the Supreme Court severed that
connection. Undertaking its own examination of the
events that led up to the Amendment’s inclusion in the
App. 19
Constitution, it concluded that the Amendment
recognized an individual right to keep and bear Arms.
At the same time, Heller held that “[l]ike most
rights, the right secured by the Second Amendment is
not unlimited.” 554 U.S. at 626. It continued as follows:
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. This opened up new frontiers of litigation: Which
weapons are covered? What manner of “keeping and
bearing” is protected? What purpose must or may the
user have? Which people hold this right? The Heller
Court recognized that there was much left to be
resolved. It did give some hints, however. One
important tea leaf for present purposes was its refusal
to endorse the idea that the Amendment protects “only
those weapons useful in warfare.” Id. at 624. It called
this a “startling reading,” since that would have
implied that machineguns— quintessential weapons
used exclusively by the military, not private
citizens—could not be regulated, in the face of the
National Firearms Act’s restrictions on those weapons.
Id.; see also Pub. L. No. 73-474, 48 Stat. 1236 (1934).
Perhaps the most important expansion of Heller
occurred in McDonald, in which the Supreme Court
confirmed that the Second Amendment, like the First,
Fourth, Fifth, Sixth, and Eighth Amendments, applies
to the states through incorporation pursuant to the
Fourteenth Amendment. See 561 U.S. at 750. The late
App. 20
date of the McDonald decision—2010—explains why
there are so few cases exploring the Second
Amendment implications of state laws regulating
weapons from the time the Amendment became part of
the Constitution (1791) to the present. Under the view
that prevailed until McDonald, the states were free to
regulate weapons in any way compatible with their
own constitutions. See generally Jeffrey S. Sutton, 51
Imperfect Solutions: States and the Making of American
Constitutional Law (2018). And they did so in countless
ways—a point of some significance when we come to
consider the history and tradition of regulation in this
area.
After McDonald, most courts of appeals adopted a
two-step test for legality under the Second
Amendment. See, e.g., Ezell, 651 F.3d at 702–03. Step
one asked whether the “challenged firearms law
regulates activity falling outside the scope of the
Second Amendment right as it was understood
[historically].” Id. If the regulated activity was
unprotected, then the law in question was not subject
to further Second Amendment review. If, however,
history showed that the activity was protected, or the
evidence was inconclusive, step two called on the court
to balance the public benefit the government was
seeking to achieve against the regulatory means it
selected, using a form of heightened scrutiny. Id. at
703.
Some courts, including our own, steered clear of
that two-step approach. That explains the path we
chose in Friedman, which dealt with exactly the same
issue we face now: a ban on assault weapons and large-
App. 21
capacity magazines. Although the district court in
Bevis thought that the reasoning in Friedman might
not have survived Bruen, we see Friedman as basically
compatible with Bruen, insofar as Friedman
anticipated the need to rest the analysis on history, not
on a free-form balancing test.
After briefly reviewing the holdings in Heller and
McDonald, Friedman turned to the question of the
scope of the individual right to keep and bear Arms. It
began by summarizing the Court’s own historical
analysis in Heller:
[The Court] cautioned against interpreting the
[Heller] decision to cast doubt on “longstanding
prohibitions,” including the “historical tradition
of prohibiting the carrying of ‘dangerous and
unusual weapons.’” [554 U.S.] at 623, 627. It
observed that state militias, when called to
service, often had asked members to come armed
with the sort of weapons that were “in common
use at the time”, id. at 624, and it thought these
kinds of weapons (which have changed over the
years) are protected by the Second Amendment
in private hands, while military-grade weapons
(the sort that would be in a militia’s armory),
such as machine guns, and weapons especially
attractive to criminals, such as short-barreled
shotguns, are not. Id. at 624–25.
784 F.3d at 407–08. The plaintiffs in Friedman had
contended that “there is no ‘historical tradition’ of
banning possession of semi-automatic guns and largecapacity magazines.” Id. at 408. But, we observed, “this
argument proves too much: its logic extends to bans on
App. 22
machine guns, … [but] Heller deemed a ban on private
possession of machine guns to be obviously valid.” Id.
(citing Heller, 554 U.S. at 624). That was so even
though states “didn’t begin to regulate private use of
machine guns until 1927,” and the federal government
did not do so until 1934. Id.
The critical question of “[h]ow weapons are sorted
between private and military uses,” we noted, “has
changed over time.” Id. Anticipating Bruen, we rejected
a historical focus on the 1920s, when these bans
started to come into existence, and turned instead to
the time of the Second Amendment’s adoption. Id. With
respect to the common ownership and use question, we
cautioned against circular reasoning:
Machine guns aren’t commonly owned for lawful
purposes today because they are illegal; semiautomatic weapons with large-capacity
magazines are owned more commonly because,
until recently (in some jurisdictions), they have
been legal. Yet it 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.
Id. at 409.5 We were not persuaded by the plaintiffs’
efforts to put semiautomatic weapons on the “private”
5
The dissent embraces the reasoning we rejected in Friedman; it
asserts that circularity concerns are more hypothetical than
actual. See post at 62 n.4 (citing Friedman, 784 F.3d at 416 n.5
(Manion, J., dissenting)).
App. 23
or “mixed” side of the line between private or mixed
private/military weapons, on the one hand, and
weapons exclusively for military use, on the other. We
were reluctant to place semiautomatic weapons in the
former category for the simple reason that the Heller
Court had not done so. Instead, in distinguishing
United States v. Miller, 307 U.S. 174 (1939), we
reaffirmed “the rule that the Second Amendment does
not authorize private persons to possess weapons such
as machine guns and sawed-off shotguns that the
government would not expect (or allow) citizens to
bring with them when the militia is called to service.”
784 F.3d at 408.
Conspicuously absent from our Friedman analysis
is any hint of the two-part test that Bruen disapproved.
We looked instead to the type of Arms that the Second
Amendment has always protected for private use and
contrasted them with weapons reserved for military
use. We expressly declined to subject Highland Park’s
law to means-end scrutiny. Id. at 410. Instead, we said,
“we think it better to ask whether a regulation bans
weapons that were common at the time of ratification
or those that have ‘some reasonable relationship to the
preservation or efficiency of a well regulated militia,’ …
and whether law-abiding citizens retain adequate
means of self-defense.” Id. (quoting Heller, 554 U.S. at
622 (quoting Miller, 307 U.S. at 178)). This approach,
we believe, is consistent with the methodology
approved in Bruen.
Pointing to Wilson v. Cook County, 937 F.3d 1028
(7th Cir. 2019) (per curiam), the dissent sees Friedman
differently. It notes that one can find language in
App. 24
Wilson that characterizes Friedman as “evaluat[ing]
the importance of the reasons for the [assault weapons
ban] to determine whether they justified the ban’s
intrusion on Second Amendment rights.” 937 F.3d at
1036. But this language is pure dicta. It may represent
the Wilson panel’s attempt to put a gloss on Friedman,
but it did not change the actual legal test that
Friedman applied. The issue in Wilson, recall, was
whether Friedman could be reconciled with Ezell,
which struck down Chicago’s ban on firing ranges
within city limits. See id. at 1035. On that issue,
Wilson found that “Friedman fits comfortably under
the umbrella of Ezell” and that it “represents the
application and extension of its principles to the
specific context of a ban on assault weapons and largecapacity magazines.” Id. at 1036. Indeed, Wilson is
notable for what it did not say: it never said that
Friedman had used intermediate scrutiny or meansend balancing; and it did not depict Friedman as
evaluating only the importance of the reasons behind
the ordinance at issue there. The fleeting reference to
the city’s reasons for adopting the ordinance, in short,
was not part of the panel’s reasoning, and so, while
certainly disapproved in Bruen, does not undermine
the central analysis in the case.
We have now referred many times to Bruen, and
finally, it takes center stage. Rejecting the two-part
test adopted by the courts of appeals (which it derided
as having “one step too many,” 142 S. Ct. at 2127), the
Bruen Court elaborated on the test that Heller
requires. See 142 S. Ct. at 2129–30. First, it said, the
trial court must decide whether “the Second
Amendment’s plain text covers an individual’s
App. 25
conduct.” Id. If so, then “the Constitution
presumptively protects that conduct.” Id. at 2130. The
analysis then moves to the second step, which calls on
the “government [to] justify its regulation by
demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” Id. The
Court predicted that this second step would be
relatively easy in some instances, when historical
analogues are easy to find. But in other instances, it
recognized that the task would be challenging. It
singled out “cases implicating unprecedented societal
concerns or dramatic technological changes,” which
“may require a more nuanced approach.” Id. at 2132.
Bruen also confirmed some additional points that
inform our analysis. First, the Court said (not for the
first time) that the Arms protected by the Second
Amendment are not limited to those that were in
existence at the time of its ratification, 1791, or at the
time the Fourteenth Amendment took effect, 1868. Id.
Second, the search is for a historical regulation that is
relevantly similar, not identical. Bearing in mind that
“the central component” of the Second Amendment
right is individual self-defense, id. at 2133 (quoting
McDonald, 561 U.S. at 767 (emphasis in original)), the
question is whether the modern and historical
regulations “impose a comparable burden on the right
of armed self-defense and whether that burden is
comparably justified,” id. And the Court made it clear
that this search was a meaningful one, not just a
subterfuge for either upholding or striking down all
modern laws:
App. 26
[A]nalogical reasoning under the Second
Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one
hand, courts should not uphold every modern
law that remotely resembles a historical
analogue, because doing so risk[s] endorsing
outliers that our ancestors would never have
accepted. On the other hand, analogical
reasoning requires only that the government
identify a well-established and representative
historical analogue, not a historical twin. So
even if a modern- day regulation is not a dead
ringer for historical precursors, it still may be
analogous enough to pass constitutional muster.
Id. (quotation and citation omitted, and second
alteration and emphases in original). Finally, the
Court’s decision in Bruen builds on, rather than
disturbs, Heller and McDonald. See id. at 2157 (Alito,
J., concurring); id. at 2161 (Kavanaugh, J., concurring).
Justice Alito in particular took care to make this point
when he wrote “[n]or does [Bruen] decide anything
about the kinds of weapons that people may possess.”
Id. at 2157 (Alito, J., concurring). Bruen simply “made
the constitutional standard endorsed in Heller more
explicit” and applied it to the handgun regulation at
issue. Id. at 2134.
Our task is to apply Bruen’s methodology to the four
laws before us. We begin by assessing whether the
assault weapons and large-capacity magazines
described in those laws are Arms for purposes of the
Second Amendment. If not, then the Second
Amendment has nothing to say about these laws: units
App. 27
of government are free to permit them, or not to permit
them, depending on the outcome of the democratic
process. If they are properly characterized as Arms,
then we must proceed to Bruen’s second step, at which
the governments bear the burden of proof, and
determine whether these laws pass muster.
III. Application to the Cases
A. Are the Covered Weapons “Arms”?
We begin by looking at the “plain text” of the Second
Amendment to see whether the assault weapons and
large-capacity magazines (terms that we, like the
parties, continue to use as short-hand for the many
items covered by these laws) fall within the scope of the
“Arms” that individual persons are entitled to keep and
bear. Both Supreme Court decisions and historical
sources indicate that the Arms the Second Amendment
is talking about are weapons in common use for selfdefense. 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.
Our starting point is, once again, Heller. It began by
interpreting the object of the Second Amendment right:
Arms. See 554 U.S. at 581. It is worth a close look at
this part of the opinion:
The 18th-century meaning is no different from
the meaning today. The 1773 edition of Samuel
Johnson’s dictionary defined “arms” as
“[w]eapons of offence, or armour of defence.” 1
Dictionary of the English Language 106 (4th ed.)
App. 28
(reprinted 1978). Timothy Cunningham’s
important 1771 legal dictionary defined “arms”
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.” 1 A New and Complete
Law Dictionary; see also N. Webster, American
Dictionary of the English Language (1828)
(reprinted 1989) (similar).
The term was applied, then as now, to
weapons that were not specifically designed for
military use and were not employed in a military
capacity. For instance, Cunningham’s legal
dictionary gave as an example of usage:
“Servants and labourers shall use bows and
arrows on Sundays, &c. and not bear other
arms.” … Although one founding-era thesaurus
limited “arms” (as opposed to “weapons”) to
“instruments of offence generally made use of in
war,” even that source stated that all firearms
constituted “arms.” 1 J. Trusler, The Distinction
Between Words Esteemed Synonymous in the
English Language 37 (3d ed. 1794) (emphasis
added).
554 U.S. at 581–82 (first emphasis and ellipsis added,
and “hereinafter” parentheticals omitted).
Summarizing, the Court said that “the Second
Amendment extends, prima facie, to all instruments
that constitute bearable arms.” Id. at 582.
But what exactly falls within the scope of “bearable”
Arms? Not machineguns, the Court said, because they
can be dedicated exclusively to military use. See id. at
624. Yet a normal person can certainly pick up and
App. 29
carry a machinegun, or for that matter the portable
nuclear weapons we mentioned at the outset.
“Bearable” thus must mean more than “transportable”
or “capable of being held.” See id. at 627 (discussing
“weapons that are most useful in military service—M16
rifles and the like,” which “may be banned”).
The Court’s comments about the role of the militia
shed light on the scope of the term “Arms.” It explained
that “[t]he traditional militia was formed from a pool of
men bringing arms ‘in common use at the time’ for
lawful purposes like self-defense.” Id. at 624. It then
concluded that “the Second Amendment does not
protect those weapons not typically possessed by lawabiding citizens for lawful purposes, such as shortbarreled shotguns. That accords with the historical
understanding of the scope of the right.” Id. at 625
(emphasis added). We take from this that the definition
of “bearable Arms” extends only to weapons in common
use for a lawful purpose. That lawful purpose, as we
have said several times, is at its core the right to
individual self-defense.
This approach is consistent with the historical
antecedents on which the Second Amendment was
based. Chief among those was the 1689 English Bill of
Rights, which is a key precursor to the bills of rights in
the U.S. state and federal constitutions. The 1689 Bill
of Rights “explicitly protected a right to keep arms for
self-defense.” McDonald, 561 U.S. at 768. Similarly,
Blackstone explained that at the root of the right to
bear arms, there is a “natural right of resistance and
self-preservation,” and “the right of having and using
arms for self-preservation and defence.” Heller, 554
App. 30
U.S. at 594 (quoting 1 WILLIAM BLACKSTONE,
COMMENTARIES *139, *140). State constitutional
protections from the Founding Era confirm this
understanding. As Heller observed, “nine state
constitutional provisions written in the 18th century or
the first two decades of the 19th … enshrined a right of
citizens to bear arms in defense of themselves and the
state or bear arms in defense of himself and the state.”
554 U.S. at 584–85, 585 n.8 (citing the state
constitutions of Pennsylvania, Vermont, Kentucky,
Ohio, Indiana, Mississippi, Connecticut, Alabama, and
Missouri) (quotations omitted).
In order to show a likelihood of success on the
merits, the plaintiffs in each of the cases before us thus
have the burden of showing that the weapons
addressed in the pertinent legislation are Arms that
ordinary people would keep at home for purposes of
self-defense, not weapons that are exclusively or
predominantly useful in military service, or weapons
that are not possessed for lawful purposes. This search
for the correct meaning of “Arms” for the Second
Amendment is consistent with our approach to its
companions in the Bill of Rights. When interpreting the
text of a constitutional provision or a statute, we often
resort to contemporaneous dictionaries or other sources
of context to ensure that we are understanding the
word in the way its drafters intended. In Fourth
Amendment cases, we ask whether the place or item
searched falls within the Amendment’s scope. See, e.g.,
California v. Ciraolo, 476 U.S. 207, 213–14 (1986)
(aerial view of backyard). For purposes of the Sixth
Amendment, before we apply the Confrontation Clause
we must ensure that a particular statement was
App. 31
testimonial. See, e.g., Ohio v. Clark, 576 U.S. 237,
243–44, 247 (2015) (child’s responses to questions from
a teacher). The famous Fifth Amendment right against
compulsory self-incrimination attaches only if the
person is in custody, despite no mention of custody in
the “plain text” of the Amendment. See, e.g., New York
v. Quarles, 467 U.S. 649, 654 (1984).
We find substantial support for the proposition that
the Arms protected by the Second Amendment do not
include weapons that may be reserved for military use.
We already have pointed to language in the Supreme
Court’s opinions to this effect.6 The dissent, relying
heavily on Staples v. United States, 511 U.S. 600
(1994), contends that the Court has already decided
that the AR-15 is in common use, and thus that the
weapon is presumptively immune from regulation. See
post at 67. We see no such holding in Staples. That case
had nothing to do with the Second Amendment, which
is mentioned nowhere in the opinion. The Court
handed down the Staples decision five months before
Congress enacted the Federal Assault Weapons Ban,
6
We note, too, that this court was not the first to observe the line
that Heller recognized, and which was applied to the states in
McDonald. For example, over a decade ago, and three years before
Friedman, one scholar of the Second Amendment wrote that
“Heller and McDonald … focused on the right of a law-abiding
person to have a handgun in his or her home for self-protection,”
but “[n]either case foreclosed reasonable gun regulations,”
including “bans on military weapons wholly unnecessary for
ordinary self-defense,” “limits on the size of gun clips,” and
“registration and permit requirements.” See Akhil Reed Amar,
Gun Control After Newtown (Dec. 26, 2012), reprinted in THE
CONSTITUTION TODAY: TIMELESS LESSONS FOR THE ISSUES OF OUR
ERA 230, 231 (2016).
App. 32
when as a matter of federal law it was lawful to own an
AR-15. (We assume that this statute is of little
relevance to our historical inquiry, given the Supreme
Court’s insistence that the relevant time to consult is
1791, or maybe 1868, not the late 20th century.) The
status of the AR-15 at the time Staples was decided
provides a ready explanation for why the Court
asserted (with no empirical support) that the AR-15 is
among the weapons that have been “widely accepted as
lawful possessions.” 511 U.S. at 612. Interestingly, the
Staples Court contrasted the AR-15s with grenades, the
possession of which it said “is not an innocent act.” Id.
at 610 (quotation omitted). It said the same about
“machineguns, sawed-off shotguns, and artillery
pieces.” Id. at 611. Overall, we see nothing in Staples
that decides whether the Second Amendment protects
AR-15s, though we do find much in the opinion that
reinforces the line we discern from Heller, and which is
confirmed by history.
When we compare the AR-15s and other
semiautomatic weapons covered by the Act and its
counterparts, we come to the same conclusion. Indeed,
we asked the plaintiffs at oral argument to explain
what distinguishes AR-15s from M16s, the military’s
counterpart that is capable of both fully automatic
operation and semiautomatic operation. The question
is important precisely because Heller itself stated that
M16s are not among the Arms covered by the Second
Amendment; they are instead a military weapon. See
554 U.S. at 624, 627.
The plaintiffs’ responses to our question were
unconvincing. They argued, for instance, that civilians
App. 33
do not regard machineguns as useful for self-defense,
but that is because they cannot purchase machineguns.
It is not too much of a stretch to think that some people
might like the fully automatic feature of a machinegun,
if they were hoping to defend their families, their
property, and themselves from invaders. The plaintiffs
also noted that machineguns are more expensive than
semiautomatic weapons, but we cannot believe that an
item’s entitlement to constitutional protection depends
on its price. Finally, with a nod to the “lawful use”
criterion, the plaintiffs said that when machineguns
were available to civilians (early in the 20th century),
they were primarily used by criminals. But this tells us
nothing about how use of those guns would have
evolved, had they remained legal and readily
available.7
Coming directly to the question whether the
weapons and feeding devices covered by the challenged
legislation enjoy Second Amendment protection, at the
first step of the Bruen analysis, we conclude that the
answer is no. We come to this conclusion because these
assault weapons and high-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
7
It appears that there is a large and growing demand for guns in
general. Since 1986, the number of guns manufactured each year
has almost quadrupled, from around 3 million in 1986 to almost 11
million in 2013. See Scott Horsley, Guns in America, by the
Numbers, NPR (Jan. 5, 2016), https://www.npr.org/2016/01/05/
462017461/guns-in-america-by-the-numbers. There is no reason to
think that machineguns would not have followed the same pattern,
had they been lawful in civilian hands.
App. 34
so the legislature was entitled to conclude).8 Indeed,
the AR-15 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.9
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 autosear to it, thereby making it, in essence, a fully
automatic weapon. In a decision addressing a ban on
bump stocks enacted by the Maryland legislature,
another federal court found that bump-stock devices
enable “rates of fire between 400 to 800 rounds per
minute.” Maryland Shall Issue v. Hogan, 353 F. Supp.
3d 400, 404 (D. Md. Nov. 16, 2018) (quotation omitted).
8
Obviously, many weapons are “dual use”: private parties have a
constitutionally protected right to “keep and bear” them and the
military provides them to its forces. In this sense, there is a thumb
on the scale in favor of Second Amendment protection. When we
refer to “military” weapons here, we mean weapons that may be
essentially reserved to the military.
9
See ARMALITE, INC., Technical Note 54: Direct Impingement
Versus Piston Drive (July 3, 2010), available at https://wayback.
archive-it.org/all/20120905024032/http://www.armalite.
com/images/Tech%20Notes%5CTech%20Note%2054,%20Gas%2
0vs%20Op%20Rod%20Drive,%20020815.pdf.
App. 35
To the same effect, the Fourth Circuit noted that “[t]he
difference between the fully automatic and
semiautomatic versions of [the AR-15 and AK-47] is
slight. That is, the automatic firing of all the
ammunition in a large-capacity thirty-round magazine
takes about two seconds, whereas a semiautomatic rifle
can empty the same magazine in as little as five
seconds.” Kolbe, 849 F.3d at 125. The District of
Columbia Circuit also noted that “semiautomatics …
fire almost as rapidly as automatics.” Heller v. District
of Columbia, 670 F.3d 1244, 1263 (D.C. Cir. 2011), on
remand from Heller, 554 U.S. 570; see also ATF Ruling
2006-2, at 2 (Dec. 13, 2006) (discussing a device
(apparently the “Akins Accelerator,” an early bumpstock device) that “is advertised to fire approximately
650 rounds per minute”).
There are a few other differences between the AR15 and the M16, but none that is relevant. The M16
has an automatic firing rate of 700 rounds per minute,
while the AR-15 has a semiautomatic rate of “only” 300
rounds per minute—unless, as we have just noted, it is
modified with, for example, a bump stock or a “binary”
trigger, which can double the rate at which
semiautomatic weapons can be fired. Both models use
the same ammunition, deliver the same kinetic energy
(1220–1350 foot-pounds), the same muzzle velocity
(2800–3100 feet per second), and the same effective
range (602–875 yards). And these comments apply with
equal force to the high-capacity handguns that are
restricted by these laws. The latter are almost
indistinguishable from the 17- or 21-round M17 and
M18 pistols that are standard-issue in the military.
App. 36
But what about the possibility that the AR-15 (and
its many cousins covered by the Act) as sold is an Arm,
even though simple modifications can transform it into
a military weapon? On the one hand, this might
support an argument against the Act, which focuses
initially on the product as sold. On the other hand,
there is a serious question whether the legislature
sought to prevent users from deconstructing weapons
into (or assembling weapons from) their constituent
parts in order to evade the core regulation. If 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. A question of this nature is raised in VanDerStok
v. Garland, No. 4:22-cv-00691-O, 2023 WL 4539591
(N.D. Tex. June 30, 2023), appeal docketed, No. 2310718, 2023 WL 4945360 (5th Cir. July 24, 2023), and
stay pending appeal granted sub nom. Garland v.
Vanderstok, No. 23A82, 2023 WL 5023383 (U.S. Aug. 8,
2023), where the Supreme Court has issued a stay of a
district court’s order vacating a federal “ghost gun”
regulation, 87 Fed. Reg. 24652 (Apr. 26, 2022). See also
Garland v. Blackhawk Mfg. Grp., Inc., No. 23A302,
2023 WL 6801523 (U.S. Oct. 16, 2023) (vacating a
second injunction limited to the parties).
Neither the parties nor the evidence before us
addressed these points, but the district courts may
explore them as the cases move forward. Better data on
firing rates might change the analysis of whether the
AR-15 and comparable weapons fall on the military or
App. 37
civilian side of the line. We note in this connection that
it is one thing to say that the AR-15 is capable of firing
at a rate of 300 rounds per minute and the comparable
rate for the M16 is 700 rounds per minute, but quite
another to address actual firing capacity, which
accounts for the need to change magazines. No one
here has suggested that the M16 comes with a 700round magazine, or for that matter that the AR-15
comes with a 300-round magazine. Either one must be
reloaded multiple times to fire so many rounds.
Factoring in the reloading time, the record may show
that the two weapons differ more—or less—than it
appears here.
Turning now to large-capacity magazines, we
conclude that they also can lawfully be reserved for
military use. Recall that these are defined by the Act as
feeding devices that have in excess of 10 rounds for a
rifle and 15 rounds for a handgun. Anyone who wants
greater firepower is free under these laws to purchase
several magazines of the permitted size. Thus, the
person who might have preferred buying a magazine
that loads 30 rounds can buy three 10-round magazines
instead.
Based on the record before us, we are not persuaded
that the AR-15 is materially different from the M16.
Heller informs us that the latter weapon is not
protected by the Second Amendment, and therefore
may be regulated or banned. Because it is
indistinguishable from that machinegun, the AR-15
may be treated in the same manner without offending
the Second Amendment.
App. 38
We conclude this portion of the opinion by stressing
again that this is just a preliminary look at the subject.
That assessment persuades us, as it did Judges
Kendall and Jenkins, that the plaintiffs have not
shown a strong likelihood of success on the merits. But,
as we previously have recognized, Second Amendment
challenges to gun regulations often require more
evidence than is presented in the early phases of
litigation. See Atkinson v. Garland, 70 F.4th 1018,
1023–25 (7th Cir. 2023) (vacating the district court’s
order dismissing a Second Amendment challenge to a
federal statute and remanding with a list of specific
questions to consider as the case proceeded). There
thus will be more to come, and we do not rule out the
possibility that the plaintiffs will find other evidence
that shows a sharper distinction between AR-15s and
M16s (and each one’s relatives) than the present record
reveals.
B. Historical Tradition
Although we are satisfied that these appeals can be
resolved at the first step of the Bruen framework—are
the weapons among the Arms protected by the Second
Amendment—for the sake of completeness we now turn
to the question whether, if the weapons covered by the
statutes before us ought to be considered bearable
“Arms,” the laws nonetheless pass muster under
Bruen’s second step. In short, are these laws consistent
with the history and tradition of firearms regulation?
Here, too, at the preliminary injunction stage, we
conclude that the plaintiffs have not shown the
necessary likelihood of success on the merits.
App. 39
In discussing whether these assault weapons and
large-capacity magazines are Arms protected by the
Second Amendment, we have (as instructed by Bruen)
confined ourselves to textual considerations. There is
another aspect of the Bruen framework, which is
whether the regulated weapons are “in common use.”
There is no consensus on whether the common-use
issue belongs at Bruen step one or Bruen step two. The
plaintiffs argue that it belongs at the second step. We
will assume (without deciding the question) that this is
a step two inquiry, where the state bears the burden of
proof. Even with that leeway, we do not find this factor
to be very helpful.
In this respect, we find the analysis in Friedman to
be particularly useful, and unlike the district courts,
we do not believe that the relevant portion was
undermined by Bruen. We recognized in Friedman that
“common use” is a slippery concept. Suppose, for
example, a new type of handgun is introduced to the
market on January 1, 2024. As of that day, zero guns of
that type have been sold. Yet if its characteristics are
analogous to those of the many other types of handguns
available for consumers, no one would say that this
new handgun was not within the class of Arms
protected by the Second Amendment. At the other end
of the spectrum, consider the actual case of
machineguns, which for a time were available for
civilian purchase, but which were eventually
withdrawn from that market. However popular
machineguns might have been, either in organized
crime circles or more generally, because their
characteristics were military in nature, the decision to
App. 40
reserve them to military use was within the power of
the legislature.
The dissent repeatedly makes the point that the
assault weapons covered by the challenged legislation
are obviously in common use, because there are so
many in private hands. Indeed, the dissent’s argument
boils down to two propositions: first, it contends that
the fact that many people own assault weapons
insulates them from regulation; and second, it makes
the surprising assertion that assault weapons are not
particularly dangerous. The latter proposition finds no
empirical support in the record, and the former, as we
will explain, does not carry the day.
The plaintiffs present basically the same argument.
One brief asserts that at least 20 million AR-15s and
similar rifles are owned by some 16 million citizens
(though they do not specify how many of these owners
would fall within the large carveout created by the
grandfather and the trained professional exceptions to
the Act). The plaintiffs also assert that at least 150
million magazines with a capacity greater than 10
rounds have been bought for private use. (The state
criticizes these numbers for being based, it says, on “an
unpublished, non-peer-reviewed paper recounting an
online survey that does not disclose its funding or
measurement tools.” We have no need for present
purposes to resolve that dispute.) Cook County offers a
different perspective, noting that of all the firearms in
the country, only 5.3% are assault weapons, and that
percentage includes those held by law-enforcement
agencies. One is reminded of Mark Twain’s apocryphal
App. 41
remark, “There are three kinds of lies: Lies, Damned
Lies, and Statistics.”
For the reasons set forth in more detail in
Friedman, we decline to base our assessment of the
constitutionality of these laws on numbers alone. Such
an analysis would have anomalous consequences. The
problem with this approach can be seen in the case of
the AR-15. When, in 1994, the Federal Assault
Weapons Ban made civilian possession of AR-15s
(among other assault weapons) unlawful, see Pub. L.
No. 103-322, § 110102, 108 Stat. 1796, 1996, few
civilians owned AR-15s. But in 2004, after the
legislation was allowed to expire pursuant to its sunset
provision, id. § 110105(2), 108 Stat. at 2000, these
weapons began to occupy a more significant share of
the market. Indeed, most of the AR-15s now in use
were manufactured in the past two decades.10 Thus, if
we looked to numbers alone, the federal ban would
have been constitutional before 2004, but
unconstitutional thereafter. This conclusion is essential
to the plaintiffs’ position, yet it lacks both textual and
historical provenance.
As this example illustrates, the idea of “common
use” cannot be severed from the historical scope of the
common-law right that the Second Amendment was
designed to protect against encroachment. In other
words, the relevant question is what are the modern
10
See Aaron O’Neill, Annual Share of AR-15 Assault Rifles in the
Total Number of Firearms Manufactured in the United States from
1990 to 2020, STATISTA (June 2, 2023), https://www.statista.com/
statistics/1388010/share-ar-15-united-states-firearm-productionhistorical/.
App. 42
analogues to the weapons people used for individual
self-defense in 1791, and perhaps as late as 1868. This
would exclude the weapons used exclusively by the
military—and every Framer of the Second Amendment
was well aware by 1791 that the King of England had
an impressive standing army, and that such weapons
existed. The weapons used for self-defense are the ones
that Heller, McDonald, Caetano, and Bruen had in
mind—not a militaristic weapon such as the AR-15,
which is capable of inflicting the grisly damage
described in some of the briefs.
Bruen recognized that even Arms (i.e., nonmilitaristic weapons) may be regulated, as long as the
regulation is “part of an enduring American tradition
of state regulation.” 142 S. Ct. at 2155. A regulation is
a part of this tradition if one can provide answers to
two questions: (1) how, and (2) why, does a given
regulation “burden a law-abiding citizen’s right to
armed self-defense”? Id. at 2133. With respect to the
“how” question, judges are instructed to consider
“whether modern and historical regulations impose a
comparable burden” on that right. Id. For all its
disclaiming of balancing approaches, Bruen appears to
call for just that: a broader restriction burdens the
Second Amendment 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. It is at this stage that many courts, as well
as the state parties here, point to the long-standing
tradition of regulating the especially dangerous
weapons of the time, whether they were firearms,
explosives, Bowie knives, or other like devices. (The
App. 43
regulations we list below are representative of this
tradition.) The dissent cannot deny that regulation
existed; it relies only on the fact that the particulars of
those regulations varied from place to place, and that
some were more absolute than others. But the same is
true in our case. The laws before us have one huge
carve-out: people who presently own the listed firearms
or ammunition are entitled to keep them, subject only
to a registration requirement that is no more onerous
than many found in history. In addition, as we noted at
the outset, the laws do not purport to regulate many
other special uses. This is enough, in our view, to
satisfy the “how” question Bruen identified.
The “why” question is another one that at first
blush seems hard to distinguish from the discredited
means/end analysis. But we will do our best. Bruen
makes clear that the question whether a burden is
“comparably justified” cannot be answered by pointing
to the gravity of the harms the legislation was designed
to avert and the appropriateness of the mechanism
they adopt. See id. at 2133, 2129. The dissent chooses
to take a purposive approach to this question: what
were the reasons motivating the historical regulations,
and do they map well onto the reasons behind the
modern law? We confess to some skepticism about any
test that requires the court to divine legislative purpose
from anything but the words that wound up in the
statute. Legislator A may have had one goal; Legislator
B may have had another; and Legislator C might have
agreed to vote for one bill in exchange for a reciprocal
vote for Legislator D’s pet project later. That is why, as
the author of Heller reminded us, “The text is the law,
App. 44
and it is the text that must be observed.” ANTONIN
SCALIA, A MATTER OF INTERPRETATION 22 (1997).
The best one can say is that if the text of the
legislation evinces its purpose (perhaps in an
introductory Statement of Purpose, which many bills
contain, or in some other prefatory provision), that is a
valid source to consult in answering the “why”
question. When we consult the text of the Act, we find
the best indication of its purpose in its name: “Protect
Illinois Communities Act.” See Pub. Act. 102-1116, at
§ 1 (2023). Cf. Johnson v. Robison, 415 U.S. 361, 377
(1974) (noting that the name of a statute can
emphasize its purpose). Historical regulations show
that at least since the Founding there has been an
unbroken tradition of regulating weapons to advance
similar purposes.
Once again, the dissent cannot dispute the existence
of this enduring American tradition. It tries to escape
it, asserting that “stop[ping] a mass casualty event,” or
perhaps “stopping escalating gun violence,” is the
purpose of the statute, post at 71, 74, yet it points to
nothing in the Act that supports either of these specific
characterizations. To be sure, the dissent notes that the
bill enacted by the City of Naperville recites a few of
the many mass shootings that have occurred during the
last decade. See post at 71 n.13.11 But the bill also
expressly states that the purpose of the ordinance is to
11
Indeed, the dissent relies solely on the municipal bill’s
recitations as proof of the state statute’s purpose. It is quite the
puzzle to try to square this interpretive method with the dissent’s
lengthy criticism of our brief invocation of the name of the Act. See
post at 63-65.
App. 45
protect public health, safety, and welfare. See City of
Naperville, Ill., Ordinance No. 22-099, at 4 (Aug. 16,
2022). The mass-shooting details appear to be nothing
more than particular examples illustrating that
broader purpose. The state’s attorney also informs us
that the legislation was enacted after the Highland
Park July 4 massacre. But we have not rested our
opinion on this point, because in our view it comes too
close to the means/end scrutiny that Bruen rejected. In
any event we do not think it is appropriate to rely on
extratextual considerations to answer the “why”
question. The issue, whether we separate out “how”
and “why” or we consider them a unified test, is
whether the tools the legislature used were limited to
those that the Second Amendment left for it, after (as
the Court said in Heller, 554 U.S. at 635, and Bruen,
142 S. Ct. at 2133 n.7) the Second Amendment itself
performed the necessary means/end balancing. As we
have explained, we think that the legislatures involved
here did stay within those boundaries.
Harking back to our examination of covered Arms,
we find the distinction between military and civilian
weaponry to be useful for Bruen’s second step, too. Both
the states and the federal government have long
contemplated that the military and law enforcement
may have access to especially dangerous weapons, and
that civilian ownership of those weapons may be
restricted.12 Many other weapons remain that are more
12
We realize that all guns are dangerous when used as intended:
a gunshot wound may be fatal or life-threatening. The Centers for
Disease Control and Prevention estimate that 48,830 people died
as a result of a firearm in 2021. See CENTERS FOR DISEASE
App. 46
universally available. That is enough to assure us that
we are not creating some unbounded “military veto”
over the types of Arms that can be regulated. History
and tradition leave no doubt that certain weaponry is
for the state only: weapons such as the grenades, the
machineguns, the artillery pieces, and the like
mentioned in Staples. See 511 U.S. at 611–12. (And
recall that the laws before us carve out not only the
military, but police and security forces too, from their
coverage.) And, as we now show, the distinction
between the two uses is one well rooted in our history.
The following examples suffice to make the point:
• In 1746, Boston outlawed the discharging of
any cannon, gun, or pistol within city limits,
but it explained that soldiers were still
permitted to discharge weaponry on their
training days. See Chapter 11—An Act to
Prevent the Firing of Guns Charged with
Shot[t] or Ball in the Town of Boston, §§ 1–3,
in 3 THE ACTS AND RESOLVES OF THE
PROVINCE OF THE MASSACHUSETTS BAY 17421756, at 309 (1878).
• Other cities, such as Cleveland, Ohio,
implemented similar ordinances throughout
the 19th century, again exempting military
CONTROL AND PREVENTION, National Center for Health Statistics:
All Injuries (Sept. 13, 2023), https://www.cdc.gov/nchs/
fastats/injury.htm. But the record indicates that there are
important differences in the lethality of the military-grade
weapons, as compared with guns that are commonly owned and
used for self-defense and other lawful purposes.
App. 47
companies during drills. See Chapter
33—Fire Arms, §§ 417–423, in ORDINANCES
OF THE CITY OF CLEVELAND 136–37 (H.L. Vail
& L.M. Snyder, eds., 1890).
• There are dozens of examples of Bowie knife
regulations, forbidding or limiting the use of
these dangerous weapons. Several of those
featured military exceptions. In 1884, for
example, Arkansas outlawed the sale of all
dirks, Bowie knives, cane-swords, metal
knuckles, and pistols, except as for use in the
army or navy of the United States. See
Chapter 53—Carrying Weapons,
§§ 1907–1909, in A DIGEST OF THE STATUTES
OF ARKANSAS 490 (W.W. Mansfield, ed.,
1884).
• Several city ordinances in the late 1800s
followed suit, restricting the carry of a wide
array of dangerous and concealable weapons
(slingshots, metal knuckles, Bowie knives,
daggers, pistols, and clubs), but exempting
“peace officers” and “conservator[s] of the
peace.” See Chapter 6—Offenses Against the
Peace of the City, § 182, in THE REVISED
ORDINANCES OF PROVO CITY 106–07 (1877);
Chapter 534—Ordinances of Baltimore,
§ 742A, in THE BALTIMORE CITY CODE 297–98
(John Prentiss Poe, ed., 1893).
• The federal government continued this
tradition when it began passing gun control
laws. The National Firearms Act of 1934
imposed taxation and registration
App. 48
requirements on all guns, but it exempted
transfers to the U.S. government, states,
territories, political subdivisions, and peace
officers. See Pub. L. No. 73-474, §§ 1-12, § 13,
48 Stat. 1236, 1236-40, 1240 (1934).
• Federal restrictions expanded in 1968, when
sale and delivery of destructive devices
(defined as an “explosive, incendiary, or
poison gas bomb, grenade, mine, rocket,
missile, or similar device”) and machineguns
were severely restricted. See Omnibus Crime
Control and Safe Streets Act of 1968, Pub. L.
No. 90-351, § 921(a)(4), § 922(b), 82 Stat. 197,
227, 230 (1968). Once again, these provisions
did not apply to items sold to the United
States or to any individual state. Id. § 925(a),
82 Stat. at 233.
• Machineguns were banned by the Firearm
Owners’ Protection Act of 1986. Since then,
civilian ownership has been capped at pre1986 levels and only military and law
enforcement have access to these weapons.
See Pub. L. No. 99-308, § 102(9), 100 Stat.
449, 453 (1986).
In short, there is a 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 lawenforcement use, and weapons designed for personal
use. The legislation now before us respects and relies
on that distinction.
App. 49
IV. Concluding Observations
We conclude with a few remarks about several
additional issues in some of these cases that do not
require immediate attention, and a reminder about the
limits on our ruling.
First, we briefly comment on Herrera’s challenge to
the constitutionality of the registration requirement
that implements the grandfather exemption. He
regards it as a burden on his Second Amendment
rights, and he worries that it may in the future lead to
confiscatory acts on the part of the state. If we are
correct in our prediction that the state will prevail in
its defense of the Act against the Second Amendment
arguments, then the registration requirement will be
valid as long as it can withstand rational basis review.
At this juncture, we see nothing particularly onerous
about it, though as with everything we have said, this
is a preliminary assessment. Herrera has until the end
of 2023 to file the necessary forms, and if he does so, he
may retain all of the covered weapons he already owns;
the Act will prohibit only his acquisition of additional
assault weapons or high-capacity feeding devices. For
its own reasons, the dissent agrees with us that the
registration requirement should not be enjoined. See
post at 76.
Second, in this court none of the parties has
developed any coherent argument that would
distinguish restrictions on possession, on the one hand,
from restrictions on sale or manufacture, on the other.
One of the parties in Bevis is a gun store, but the
implications of that have yet to be addressed. We thus
have no comment on it.
App. 50
Finally, we have no need to decide whether an
alleged Second Amendment violation gives rise to a
presumption of irreparable harm, and if so, whether
any such presumption is rebuttable or ironclad. Given
our decision that the plaintiffs have not shown that
they have a strong likelihood of success on the merits,
we think it best to save this point for another day. We
also have no comment on the other two parts of the
Winter inquiry: where the balance of equities lies, and
what the public interest dictates.13
We close with an important reminder. Nothing that
we have said here indicates that any state or
municipality must enact restrictions on the ownership
of assault weapons or high-capacity magazines. Unless
preemptive federal legislation requires otherwise, this
is an issue for the political process in each jurisdiction.
The people of some states may find the arguments in
favor of a lack of restrictions to be persuasive; the
people of other states may prefer tighter restrictions.
As long as those restrictions do not infringe on the
constitutionally protected right to keep and bear the
Arms covered by the Second Amendment, either choice
is permissible. In the cases now before us, however, the
plaintiffs have not shown a likelihood of success on the
merits, based on the fact that military weapons lie
13
The governmental parties devoted considerable attention in
their briefs to the horrors of the mass shootings that have occurred
with distressing regularity throughout the country. Illinois reports
that the mass shooting in the town of Highland Park on July 4,
2022, in which seven people were killed and another 48 were
injured, inspired the Act. We have not relied on this point,
however, because, as we have mentioned, it appears to depend on
the type of means/end analysis that Bruen disapproved.
App. 51
outside the class of Arms to which the individual right
applies.
In Nos. 23-1353 and 23-1793, we AFFIRM the
district courts’ orders denying preliminary injunctive
relief. In Nos. 23-1825, 23-1826, 23-1827, and 23-1828,
we VACATE the district court’s order granting
preliminary injunctive relief. We also confirm that the
stay we issued in these appeals will remain in effect
until our mandate issues.
SO ORDERED.
Illinois
•
•
•
•
•
Rifles—
over 10
rounds
Handguns
—over 15
rounds
Magazines
Covered
Semiautomatic •
rifles that have
one or more
assault weapon- •
like
modifications
Semiautomatic
pistols that have
one or more
assault
weapon-like
modifications
Firearms Covered
Manufacture
•
Delivery
Sale
Purchase
Possession (pre-existing
possession and private
post-Act use are
•
permissible if registration
requirements are met)
Jurisdiction Actions Prohibited
App. 52
APPENDIX
Firearms Covered
• Semiautomatic
shotguns with a
revolving cylinder
or that have one
or more assault
weapon-like
modifications
• Various assault
weapons listed by
name
Jurisdiction Actions Prohibited
Illinois
Magazines
Covered
App. 53
• Semiautomatic
N/A
rifles that can
accept more than
10 rounds or that
have one or more
assault weaponlike modifications
• Devices that
accelerate the rate
of fire of a
semiautomatic
rifle
• Various assault
weapons listed by
name
• Commercial sale
Naperville
Magazines
Covered
Firearms Covered
Jurisdiction Actions Prohibited
App. 54
• Semiautomatic
• Magazine
rifles that have
s over 10
one or more
rounds
assault weaponlike modifications
• Semiautomatic
pistols that have
one or more
assault weaponlike modifications
Manufacture
Sale
Offer or display for sale
Give
Lend
Transfer of ownership
Acquire
Carry
Possession
Cook County •
•
•
•
•
•
•
•
•
Magazines
Covered
Firearms Covered
Jurisdiction Actions Prohibited
App. 55
Firearms Covered
• Semiautomatic
shotguns with a
revolving cylinder
or that have or
one more assault
rifle-like
modifications
• Combination kits
from which an
assault weapon
can be assembled
• Various assault
weapons listed by
name
Jurisdiction Actions Prohibited
Cook County
Magazines
Covered
App. 56
Import
Sale
Manufacture
Transfer of ownership
Possession
• Semiautomatic
• Handguns
rifles with the
—over 15
ability to accept a
rounds
detachable
magazine and that
have one or more
assault weaponlike modifications
• Semiautomatic
rifles that have a
fixed magazine
with the capacity
to accept more
than 10 rounds
•
•
•
•
•
Chicago
Magazines
Covered
Firearms Covered
Jurisdiction Actions Prohibited
App. 57
Firearms Covered
• Devices that
accelerate the rate
of fire of a
semiautomatic
rifle
• Shotguns that
have one or more
assault weaponlike modifications
• Semiautomatic
handguns that
have one or more
assault weaponlike modifications
Jurisdiction Actions Prohibited
Chicago
Magazines
Covered
App. 58
Firearms Covered
• Various assault
weapons listed by
name
Jurisdiction Actions Prohibited
Chicago
Magazines
Covered
App. 59
App. 60
BRENNAN, Circuit Judge, dissenting. The Second
Amendment “right of the people to keep and bear
Arms” is not a second-class right. Yet the State of
Illinois and several Illinois municipalities have
categorically banned law-abiding citizens from keeping
and bearing a sweeping range of firearms and
magazines. In a remarkable conclusion, the majority
opinion decides that these firearms are not “Arms”
under the Second Amendment. Because the banned
firearms and magazines warrant constitutional
protection, and the government parties have failed to
meet their burden to show that their bans are part of
the history and tradition of firearms regulation,
preliminary injunctions are justified against
enforcement of the challenged laws. I respectfully
dissent.
I
The Protect Illinois Communities Act, Pub. Act 1021116, challenged in each case before us, dramatically
redefines the legality of firearms and magazines in
Illinois. It goes far beyond the prohibition of “assault
rifles.” The Act eliminates the ownership, possession,
and use for self-defense of many of the most commonlyowned semiautomatic handguns, shotguns, rifles, and
magazines. Exceptions to the Act are narrow.
Specifically, the Act covers firearms, magazines,
and an endorsement process for registration. The Act
bans the manufacture, delivery, sale, import, and
purchase of a vast array of weapons, 720 ILL. COMP.
STAT. §§ 5/24-1(a)(16), 75/24-1.9(a), 5/24-1.10(a)–(b),
prohibiting them by their features, by their functions,
and by name. The Act bans semiautomatic rifles with
App. 61
detachable magazines and one additional qualifying
attachment, such as a pistol grip or a flash suppressor.
Id. § 5/24-1.9(a)(1)(A). “[A]ll AR type[]” rifles are
banned, including 43 named variants, such as the AR15. The Act further prohibits “copies, duplicates,
variants, or altered facsimiles with the capability of
any such weapon.” Id. § 5/24-1.9(a)(1)(J)(ii). It also bans
almost 100 more rifles by name. Id. § 5/24-1.9(a)(1)(J).
The Act restricts various other firearms as well. For
example, a law-abiding citizen in Illinois can no longer
purchase semiautomatic pistols that have “a fixed
magazine with the capacity to accept more than 15
rounds,” regardless of any attachments. Id. § 5/241.9(a)(1)(D). The same goes for a semiautomatic
shotgun with a fixed magazine holding more than five
shells. Id. § 5/24-1.9(a)(1)(F)(v). The list of restricted
weapons includes nearly all detachable magazines
holding more than 10 rounds of ammunition for long
guns and 15 rounds of ammunition for handguns. Id.
§ 5/24-1.10(a)(1)–(2). Many handguns, the
“quintessential self-defense weapon” for the American
people, District of Columbia v. Heller, 554 U.S. 570, 629
(2008), come standard with magazines carrying more
than 15 rounds. As with semiautomatic rifles, after
banning pistols by their features, the Act bans “[a]ll AR
type[] pistols” and approximately 40 semiautomatic
pistols by name. 720 ILL. COMP. STAT. § 5/241.9(a)(1)(K).
Three municipal laws are also challenged, which are
as or more restrictive than the Act. The City of
Naperville ordinance is similar to the Act in most
respects; both are challenged in Bevis. The Cook
App. 62
County and City of Chicago ordinances, challenged
along with the Act in Herrera, are even broader. Cook
County bans possession of “assault weapons,” COOK
COUNTY, ILL. CODE § 54-211 and § 54-212, which
includes semiautomatic pistols with the capacity to
accept a detachable magazine and contain a qualifying
attachment (such as a muzzle brake). The City of
Chicago ordinance is similar. See CHI. MUN. CODE §§ 820-010, 8-20-075, 8-20-085.1
1
The majority opinion uses the phrase “assault weapon” to
simplify the covered arms. The appendix to the majority opinion
uses a variety of terms to summarize the types of arms the four
challenged laws categorically ban.
Still, the description in the appendix of the Act’s ban is
underinclusive in some ways. The Act bans semiautomatic rifles
with fixed magazines over 10 rounds (unless it fires .22 rimfire and
is loaded with a tubular mechanism). ILL. COMP. STAT. § 5/241.9(a)(1)(B). The appendix uses the phrase “[s]emiautomatic pistols
that have one or more assault weapon-like modifications,” most
likely a reference to ILL. COMP. STAT. § 5/24-1.9(a)(1)(C). More
precisely, the Act also bans semiautomatic pistols with fixed
magazines over 15 rounds. Id. § 5/24-1.9(a)(1)(D). Not included in
the appendix are bump stocks and binary triggers (a device
enabling the firing of two-rounds per trigger pull), which are both
prohibited by the Act. Id. § 5/24-1(a)(14).
The Cook County ordinance mirrors the Act’s prohibitions,
although it is stricter than the Act in that it bans semi-automatic
handguns with fixed magazines over 10 rounds (as opposed to 15
rounds under the Act). COOK COUNTY, ILL. CODE § 54-211(2).
The City of Chicago ordinance is underinclusive in its
description of the magazines covered. The ordinance prohibits any
magazine holding greater than 15 rounds, encompassing
magazines for all types of firearms (except for attached devices
that only accept and operate with .22 rimfire ammunition), not just
handguns. CHI. MUN. CODE § 8-20-010.
App. 63
II
The parties dispute whether the state, county, and
city bans respect the constitutional right to keep and
bear arms. In New York State Rifle & Pistol Ass’n, Inc.
v. Bruen, 142 S. Ct. 2111 (2022), the Supreme Court set
forth the framework for addressing those disputes.
Rejecting means-end scrutiny, the Court held: “When
the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively
protects that conduct. The government must then
justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of
firearm regulation.” Bruen, 142 S. Ct. at 2129–30.
The Second Amendment states in part, “the right of
the people to keep and bear Arms, shall not be
infringed.” U.S. CONST. amend. II. The amendment
presents several conditions for plain text coverage,
which raise questions including:
• Is the regulated population a covered
“people?” See, e.g., Range v. Att’y Gen. United
States, 69 F.4th 96, 101–03 (3d Cir. 2023) (en
banc); United States v. Sitladeen, 64 F.4th
978, 983 (8th Cir. 2023); and
• Is the conduct regulated “keep[ing]” or
“bear[ing]” arms? See, e.g., Heller, 554 U.S. at
582–92.
We consider another question: Are the instruments
regulated “Arms”?
“Arms” in the Second Amendment is a broad term
that “covers modern instruments that facilitate armed
App. 64
self-defense.” Bruen, 142 S. Ct. at 2132. The term
“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.
When the plain text of the Second Amendment covers
an individual’s conduct, then the Constitution
presumptively protects the conduct. Bruen, 142 S. Ct.
at 2129–30. That presumptive protection is of all
bearable instruments that facilitate armed self-defense,
even those not in existence at the time of the Founding.
Id. at 2132, 2143 (citing Caetano v. Massachusetts, 577
U.S. 411, 411–412 (2016) (per curiam), and Heller, 554
U.S. at 627).2
As an initial matter, magazines—ammunition
feeding devices without which semiautomatic firearms
cannot operate as intended—are “Arms.” Such devices
are required as part of the firing process. This court
has recognized that corollaries to firearms fall within
Second Amendment protection. See Wilson v. Cook
County, 937 F.3d 1028, 1032 (7th Cir. 2019) (quoting
Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir.
2011)). Further, the Act’s ban on magazines holding
more than ten rounds for rifles and more than fifteen
rounds for handguns effectively bans firearms that
come standard with magazines over the limit.
2
When the Supreme Court issued Bruen, it vacated several federal
appellate decisions upholding gun controls laws, remanding them
for reconsideration. Two of them—Duncan v. Bonta, 19 F.4th 1087
(9th Cir. 2021), and Ass’n of N.J. Rifle & Pistol Clubs Inc. v. Att’y
Gen. N.J., 974 F.3d 237 (3d Cir. 2020)—concerned magazine limits
of 10 rounds, and Bianchi v. Frosh, 858 F. App’x 645 (4th Cir.
2021) (per curiam) (unpublished), upheld Maryland’s “assault
weapons” ban.
App. 65
As for the broader definition of “Arms,” that term
should be read as “Arms”—not “Arms in common use at
the time.” In Heller, the Supreme Court recognized a
“historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons,’” 554 U.S. at 627,
which may be regulated—a point it repeated in Bruen,
142 S. Ct. at 2143.
The Court “did not say that dangerous and unusual
weapons are not arms.” Teter v. Lopez, 76 F.4th 938,
950 (9th Cir. 2023) (emphasis in original) (ruling that
Hawaii statute banning butterfly knives violated
Second Amendment). To be sure, this does not mean
that the Second Amendment bars governments from
regulating weapons long held improper for civilian use.
This reading of Bruen permits the government, for
example, to preclude civilian ownership of military
weaponry when the history and tradition of weapons
regulation so dictates. As other examples, the
government may prohibit sawn-off rifles and shotguns,
which properly qualify as dangerous and unusual
firearms as they are not ordinarily used by law-abiding
citizens. See Heller, 554 U.S. at 625 (“[T]he Second
Amendment does not protect those weapons not
typically possessed by law-abiding citizens for lawful
purposes, such as short-barreled shotguns.”). But that
distinction does not determine whether a weapon is an
“Arm.”
The government parties limit the Second
Amendment right by importing the phrase “in common
use” to assess whether firearms are “Arms.” But their
reading improperly restricts the constitutional right.
The banned firearms propel bullets by explosive force
App. 66
from gunpowder, yet the government parties ask us to
conclude that these rifles and pistols are not “Arms.”
As one amicus curiae submitted, “in 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 “Arms.”3 The nature of an object
does not change based on its popularity, but the
regulation of that object can.
The government parties also incorrectly attempt to
place a burden on the plaintiffs to show that the plain
text of “Arms” includes the banned firearms. Bruen
does not say that. Instead, Bruen states that when the
Second Amendment’s text covers an individual’s
conduct, the Constitution presumptively protects it.
142 S. Ct. at 2126, 2129–30. It is undisputed that the
government then bears the burden of proof under
Bruen’s history and tradition framework.
Whether a firearm is “in common use” is asked as
part of the history and tradition analysis. At least two
reasons support this reading. First, the “in common
use” test in Bruen is drawn from the “historical
tradition” of restrictions on “dangerous and unusual
weapons.” Id. at 2143. The test is not drawn from a
historical understanding of what an “Arm” is. Id. at
2132. Second, if a weapon is an “Arm,” it is only prima
facie protected by the Second Amendment. Bruen, 142
S. Ct. at 2132 (quoting Heller, 554 U.S. at 582); see
Teter, 76 F.4th at 949–50 (placing “in common use” test
in history and tradition test of Bruen).
3
See D.E. 99, Brief for Amici Curiae Idaho, et al., at 6.
App. 67
The limitation of the Second Amendment right is
addressed in Bruen’s history and tradition test. This
requires the government to identify well-established
and representative historical analogues to show that
the modern regulation is consistent with a historical
tradition of firearms regulation. Bruen, 142 S. Ct. at
2133. In performing this analogical inquiry, it is critical
to fly at the right level of generality. Id. (“[A]nalogical
reasoning under the Second Amendment is neither a
regulatory straightjacket nor a regulatory blank
check.”); see J. H ARVIE WILKINSON, COSMIC
CONSTITUTIONAL THEORY 44 (2012). Fly too high, and
we risk any historical firearms regulation becoming an
analogue. Under Bruen, courts must not “uphold every
modern law that remotely resembles a historical
analogue.” Bruen, 142 S. Ct. at 2133. (quoting
Drummond v. Robinson, 9 F.4th 217, 226 (3d Cir.
2021)). Fly too low, and we risk myopia—nitpicking
differences because a historical regulation is not a
“dead ringer.” Id. We are looking for “a well-established
and representative historical analogue, not a historical
twin.” Id.
Before reviewing the approach to decide whether a
regulation is an analogical fit, it helps to address what
history and tradition refer to here. “History” means
that analogous laws must be “longstanding” and from
the relevant “timeframe.” Id. at 2131, 2133 (citing
Heller, 554 U.S. at 626). “History” helps establish the
public meaning of the Constitution as “understood ...
when the people adopted” it. Id. (citing Heller, 554 U.S.
at 634–35). The Court tells us that only two historical
timeframes are relevant to the public understanding of
the Second Amendment—the adoption of the Second
App. 68
Amendment in 1791 and the ratification of the
Fourteenth Amendment in 1868. Id. at 2136. Laws
enacted after the “end of the 19th century” must be
given little weight. Id. at 2136–37 (cleaned up).
“Tradition” means that the comparison must be to laws
with wide acceptance in American society. Id. at 2136.
Laws that enjoyed “widespread” and “unchallenged”
support form part of our tradition. Id. at 2137.
In Bruen, the Court reaffirmed that “individual selfdefense is ‘the central component’ of the Second
Amendment right,” id. at 2133 (citing McDonald, 561
U.S. at 767 (quoting Heller, 554 U.S. at 599)), and
expressly identified two questions to assess the
analogical strength of a historical regulation: “how and
why the regulations burden a law-abiding citizen’s
right to armed self-defense.” Id. at 2133. Put another
way, how does the regulation limit the Second
Amendment right, and why does it do so?
How. How a historical regulation addressed a
particular problem, or whether it did at all, matters.
“[I]f earlier generations addressed the societal problem,
but did so through materially different means, that
also could be evidence that a modern regulation is
unconstitutional.” Id. at 2131. Whether a given
regulation was ever enforced, and to what extent, can
be relevant here as well. Id. at 2149.
Courts must also evaluate how historical
“regulations burden a law-abiding citizen’s right to
armed self-defense.” Id. at 2133. Modern regulations
that impose a “comparable burden on the right of
armed self-defense” are more likely to be upheld. Id.
App. 69
In assessing these comparable burdens, we consider
the breadth of the ban and the weapon banned. For the
breadth of the ban, the more expansive the limitation,
the greater the burden on the Second Amendment
right, which necessarily requires a close analogical fit.
For the weapon banned, the burden on the right to
keep and bear arms necessarily correlates with
whether the prohibited weapon is “in common use at
the time” of regulation. Id. at 2128, 2134, 2143. So, it is
natural that categorical bans of weapons in common
use will require an even stronger analogical fit with
historical regulations. See id. at 2143–44 (rejecting the
analogical value of alleged colonial era categorical bans
on “dangerous and unusual” weapons because
handguns are “unquestionably in common use today”).
Why. Why a historical regulation addressed a
particular problem, or whether it did at all, is also key
to evaluating its analogical value. In considering
whether a historical regulation is an analogical fit,
courts are to address whether the modern regulation
and proposed historical analogue have comparable
justifications for burdening the right to bear arms. Id.
at 2133. If the reasons motivating the historical and
modern regulations differ, there is no analogue. See id.
at 2140, 2144. Beyond doubt, this inquiry should not
allow a return to interest balancing. See id. at 2131
(explaining that the Second Amendment itself “is the
very product of an interest balancing by the people”
(quoting Heller, 554 U.S. at 635)). Rather, the state’s
current rationale for arms regulation only matters
insofar as a historical regulation was motivated by
similar reasons. If not, the analogy fails. See id. at 2144
(discussing the context of the colonial New Jersey
App. 70
restrictions, in which land disputes between planters
and the colony’s proprietors caused planters to carry
pistols).
The government can only defend a regulation by
proving it is consistent with this country’s history and
tradition. See Atkinson v. Garland, 70 F.4th 1018,
1020–21 (7th Cir. 2023). Whether that history and
tradition allows regulating firearms in sensitive places,
for the mentally ill, and for felons, is currently under
debate. See, e.g., United States v. Rahimi, 61 F. 4th
443, 460–61 (5th Cir. 2023) (ruling that federal statute
prohibiting possession of firearm by individual subject
to domestic violence restraining order violates Second
Amendment as inconsistent with historical tradition),
cert. granted 143 S. Ct. 2688.
This understanding of the Bruen framework is
different from that of my colleagues. First, the majority
opinion acknowledges Bruen’s “in common use”
language but criticizes it as spawning unworkable
circularity issues: If the Second Amendment protects
firearms in common use, then that right would turn on
how quickly a state enacts regulations. If a firearm is
outlawed quickly following its introduction to the
market, then it has no chance of gaining common use
and enjoys only limited or no Second Amendment
protection. This cannot be how the Second Amendment
functions, the argument goes, as the speed of
regulation should not bear on an arm’s
constitutionality.
This circularity concern is far less pressing when
the “in common use” language is properly situated.
Because that consideration plays into the history and
App. 71
tradition analysis—and not the scope of the Second
Amendment’s text—it is not an “on-off” switch for
constitutional protection. Just because a weapon is not
in common use does not mean it falls outside the text
of the Second Amendment; and just because a weapon
is in common use does not necessarily mean a
government is barred from regulating it. Proper inquiry
requires full examination of the government’s evidence
and historical analogues, keeping in mind that bans of
weapons “in common use” are constitutionally suspect.
The Supreme Court certainly was not worried about
circularity. In Bruen, the Court explicitly linked the
Second Amendment analysis to “in common use.” See
142 S. Ct. at 2128 (quoting Heller, 554 U.S. at 629)
(explaining that “the Second Amendment 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’”). The Court reasoned that
even if handguns were once “dangerous and unusual,”
such firearms “are unquestionably in common use
today” and therefore receive robust Second Amendment
protection. Id. at 2143. In Caetano, the Court
addressed Second Amendment protections for a new
electronic weapon. So many were in circulation
(200,000 stun guns, far fewer than the approximately
25 million AR rifles) that the electronic weapon was
deemed “commonly possessed by law-abiding citizens
for lawful purposes … .” 577 U.S. at 420. We are not
free to ignore the Court’s instruction as to the role of
“in common use” in the Second Amendment analysis.4
4
The circularity argument also is not new. See Friedman v. City
of Highland Park, 784 F.3d 406 (7th Cir. 2015). As Judge Manion
App. 72
Next, my colleagues disagree with my approach to
Bruen’s “why” question, raising the specter of
purposivism. The majority opinion urges respect for the
text of a statute alone, which I share. Indeed, a fair
reading of a statute always “requires an ability to
comprehend the purpose of the text, which is a vital
part of its context.” See ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 33 (2012); see also John O. McGinnis, The
Contextual Textualism of Justice Alito, 14 HARV. J. L. &
PUB. POL’Y PER CURIAM, at 2 (2023) (describing Justice
Alito’s use of context in interpretation). This is
certainly a different task than interpreting a statute by
reference to the intent of its drafters, which I agree is
an inappropriate job for judges.
Still, Bruen requires us to consider the historical
context giving rise to the statute (the “why”). Bruen
looks at history and tradition to determine “the content
of the preexisting legal right to bear arms.” Randy E.
Barnett & Lawrence B. Solum, Originalism After
Dobbs, Bruen, and Kennedy, 118 NW. U. L. REV. 433,
469 (2023). And Bruen’s history and tradition approach
is a different endeavor than statutory interpretation.
Often a statute takes center stage for a purpose
other than to discern the scope of its legal rule, even
when determining whether it violates a constitutional
right. See Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 270 (1977) (considering
whether a discriminatory purpose was a motivating
explained in dissent, circularity concerns deal in the hypothetical
more than the actual. Id. at 416 n.5.
App. 73
factor in a city’s zoning rules). For example, in Bruen
the Court considered Henry VIII’s “displeasure with
handguns” due to his concern that they would
“threaten[] Englishmen’s proficiency with the longbow,”
which led to Parliament’s passage of handgun
restrictions. 142 S. Ct. at 2140. East New Jersey
prohibited the concealed carry of pocket pistols in
response to “‘strife and excitement’ between planters
and the Colony’s proprietors ‘respecting titles to the
soil.’” Id. at 2143–44. And Heller discusses the “publicsafety reasons” behind several Colonial-era individualarms-bearing statutes. Heller, 554 U.S. at 601.
When looking to the text in its “why” analysis, the
majority opinion relies on the Act’s title, Protect Illinois
Communities Act. Set aside for the moment that “for
interpretive purposes,” courts should only rely on titles
to “shed light on some ambiguous word or phrase” in
the text. See Trainmen v. Baltimore & Ohio R. Co., 331
U.S. 519, 529 (1947). Titles and section headings have
a short history in the Anglo-American interpretive
tradition—legislatures did not always include the title
while debating the act. See SCALIA & GARNER at 221. If
there is serious doubt as to whether those titles and
headings received a fair shake in the legislative
process, relying on them would make little sense. One
influential treatise implores judges to check a state’s
constitution for provisions that vouchsafe interpretive
usefulness on a statutory title. See id. at 224.
As it turns out, the title of the Protect Illinois
Communities Act has little interpretive utility. The
Illinois Constitution has a provision grounding the title
in the legislative process, but there is serious doubt
App. 74
whether the legislature obeyed it here. The so-called
three-readings clause states: “A bill shall be read by
title on three different days in each house.” ILL. CONST.
art. IV, § 8(d). Reading rules exist precisely to ensure
“that each House knows what it is passing and passes
what it wants.” Schwegmann Bros. v. Calvert Distillers
Corp., 341 U.S. 384, 396 (1951) (Jackson, J.,
concurring) (explaining that the federal three-readings
rule helps draw a line where debate ends and drafting
begins).
Consider the procedural path of the Act, during
which the Illinois legislature may very well have
ignored the three-readings rule. See Caulkins v.
Pritzker, No. 129453, 2023 WL 5156850, at *17 (Ill.
Aug. 11, 2023) (White, J., dissenting). A group of
firearms owners challenged the Act in Illinois state
court, arguing it violated several provisions of the
Illinois Constitution. Id. at *1. The three-readings
clause is one of these provisions, and the Supreme
Court of Illinois rejected that claim only because the
plaintiffs failed to cross-appeal it, a jurisdictional error
warranting dismissal. Id. This legislation began in the
Illinois House with the title, “an Act concerning
regulation,” and its synopsis described changes to the
state’s insurance code. Id. at *17 (White, J.,
dissenting). The House read it three times by this title,
then sent it to the Illinois Senate. Id. The Senate read
it twice before the Senate adopted an amendment that
“completely stripped the insurance provisions[,] …
replaced them with the ‘Protect Illinois Communities
Act[,]’” and added the new bill’s popular title. Id. The
day the legislation became the “Protect Illinois
Communities Act,” the Senate read it for the first time
App. 75
under the new title and passed it. Id. The Act was
returned to the House the day after that and passed
without a reading. Id. The Illinois Governor signed it
later that day. Id.5
Though the Act’s possible three-readings problem
bears on neither the Second Amendment question nor
the Act’s legitimacy, it remains a good reason to be
skeptical of the interpretive value of language extrinsic
to the operative text. Instead, I focus on permissible
indicators of meaning.
III
Turning to this interlocutory appeal, the plaintiffs
make a facial challenge to the Act and ordinances at
the preliminary injunction stage. According to the
Supreme Court in Nken v. Holder, 556 U.S. 418, 434
(2009), the two most important considerations at this
stage are likelihood of success on the merits and
irreparable harm. For the reasons explained below,
plaintiffs have satisfied both considerations.
A
As for likelihood of success on the merits, the
firearms and magazines banned by the Act and
ordinances are “Arms” under the plain text of the
Second Amendment. These firearms and magazines are
5
The Illinois Supreme Court decided that the Act does not violate
certain provisions of that state’s constitution. Caulkins, 2023 WL
5156850, at *4–6. The court also ruled that a challenge based on
the federal Second Amendment had been waived. Id. at *6.
App. 76
therefore presumptively protected.6 The government
parties embrace a contrasting, very narrow view of the
scope of the Second Amendment. They would limit this
constitutional right to the facts in Heller and Bruen.
Yet, as examples, the First and Fourth Amendments
would surely not be read in such a cramped manner.
Under Bruen’s history and tradition test, the
government parties bear the burden to show that the
banned arms are not in common use—or in other
words, are not dangerous and unusual—and to identify
historical analogues. As described above, Bruen
reviewed Heller and set forth its test to determine if
regulations satisfied the “how” and “why” test. Bruen,
142 S. Ct. at 2128 (citing Heller, 554 U.S. at 626–34).
The Act and ordinances here do not fall within a
“historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons.’” Heller, 554 U.S. at
627; see Bruen, 142 S. Ct. at 2143. The banned arms
are “in common use,” including for self-defense,
hunting, and sporting pursuits. Each side chooses its
metric—regulators divide the banned guns by the total
number of firearms, and gun owners use gross numbers
of the banned guns and magazines. Under either
measure, the banned weapons and magazines meet the
definition of “common”: “the quality of being public or
generally used.” BRYAN GARNER, GARNER’S DICTIONARY
OF LEGAL USAGE 179 (Oxford, 3d ed. 2011). More than
24 million AR rifles are estimated to be in circulation
6
Debates about grenades or rocket launchers are off subject. Some
military weaponry is covered by federal statute, see 18 U.S.C. ch.
44, which is not challenged here.
App. 77
in this country.7 Magazines number far more: in 2020
it was estimated that approximately 160 million pistol
and rifle magazines with a capacity of 11 rounds or
more were in U.S. consumer possession from
1990–2018.8
Federal courts have recognized that the AR-15 rifle
is common. In Staples v. United States, 511 U.S. 600
(1994), the Supreme Court offered comments in dicta
stating how common AR-15s were at that time in this
country. That case, which did not address the Second
Amendment, turned on the question of mens rea, and
the Court decided that to convict a person of possession
of an unregistered machinegun, the government must
prove the defendant knew that it would fire
automatically. Id. at 619. In Staples, the Court
contrasted the semiautomatic AR-15 with the
automatic M16. Id. at 602 n.1, 603. Acknowledging “a
long tradition of widespread lawful gun ownership by
private individuals in this country,” the Court stated,
“[e]ven dangerous items can, in some cases, be so
commonplace and generally available that we would
not consider them to alert individuals to the likelihood
of strict regulation.” Id. at 610–11. Staples contrasted
7
Commonly Owned: NSSF Announces over 24 Million MSRs in
Circulation, NAT’L SHOOTING SPORTS FOUND. (July 20, 2022),
https://www.nssf.org/articles/commonly-owned-nssf-announcesover-24-million-msrs-in-circulation/ [https://perma.cc/2LX6-UN3B].
8
Firearm Production in the United States, NAT’L SHOOTING SPORTS
FOUND.
7
(2020),
https://www.nssf.org/wpcontent/uploads/2020/11/IIR-2020-Firearms-Production-v14.pdf
[https://perma.cc/3WK8-TVAV] (sum of pistol and rifle magazines
with 11 or more rounds).
App. 78
ordinary firearms such as the AR-15 in that case with
“machineguns, sawed-off shotguns, and artillery
pieces,” stating “guns falling outside those categories
traditionally have been widely accepted as lawful
possessions.” Id. at 612.
Albeit pre-Bruen, two federal appellate courts also
concluded that AR platform rifles are common. N.Y.
State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242,
255 (2d Cir. 2015) (“Even accepting the most
conservative estimates cited by the parties and by
amici, the assault weapons and large-capacity
magazines at issue are ‘in common use’ as that term
was used in Heller.”); Heller v. District of Columbia,
670 F.3d 1244, 1261 (D.C. Cir. 2011) (“We think it clear
enough in the record that semi-automatic rifles and
magazines holding more than ten rounds are indeed in
‘common use,’ … .”). The firearms banned by the Act
and ordinances here have achieved common use in the
United States. They are not unusual.
As for magazines, Heller recognizes that
ammunition feeding devices may store rounds in a way
that the ammunition can be used immediately. 554
U.S. at 630. The Act and ordinances limit the number
of rounds a magazine may contain to 10 and 15.
Nothing in the record supports these arbitrary limits.
“Large”- or “high”-capacity magazine is a relative term,
as pistols may ship with magazine sizes ranging from
5 to 20 rounds, and common self-loading rifles have a
standard magazine capacity of between 20 and 30
App. 79
rounds.9 The numbers chosen in the Act and ordinances
do not track the gun market and are not “in common
use.”
Even if AR platform rifles were unusual, they are
not more dangerous than handguns. (Recall the test is
“dangerous and unusual.” (emphasis added). See id. at
627; Bruen, 142 S. Ct. at 2143.) The semiautomatic
mechanism in an AR-15 rifle is, in all material
respects, the same as in a semiautomatic handgun.
That mechanism is gas powered, and the impact of the
pin firing the bullet pushes back the lock mechanism,
ejects the old shell, and loads the new round from the
magazine. If Bruen and Heller provide that
semiautomatic handguns do not fail under the
“dangerous” prong, the mechanism in the AR-15 must
survive scrutiny. Indeed, a handgun could be viewed as
more dangerous than an AR-15 rifle because the
handgun is less accurate and more concealable.10
9
David B. Kopel, The History of Firearm Magazines and Magazine
Prohibitions, 78 ALB. L. REV. 849, 874 (2015) (“It is indisputable in
the modern United States that magazines of up to thirty rounds
for rifles and up to twenty rounds for handguns are standard
equipment for many popular firearms.”); id. at 859 (“The most
popular rifle in American history is the AR-15 platform, a
semiautomatic rifle with standard magazines of twenty or thirty
rounds.”). Springfield, for example, ships a small handgun with a
5-round magazine. See XD-S Mod.2 OSP 3.3” Single Stack .45 ACP
Handgun, SPRINGFIELD ARMORY (2023), https://www.springfieldarmory.com/xd-series-handguns/xd-s-mod-2-osp-handguns/xd-smod-2-osp-3-3-single-stack-45-acp-handgun
[https://perma.cc/64NQ-KRWM].
10
One pre-Bruen analysis offered a test for “Arms” consistent with
the elements Heller pointed to: common use, unusualness,
App. 80
AR-15s are not more dangerous because of the
projectile used. The regulations challenged here do not
speak to the type of round employed, but to the
capacity of the magazines and the rate of fire. In this
respect, an AR-15 and a semiautomatic handgun are
very similar. Controlling for the same caliber of round,
the difference between a Glock semiautomatic pistol
and an AR-15 is just the stock and barrel length. Their
rate of fire depends on how fast a trigger can be pulled.
On that metric, an AR-15 is closer to a semiautomatic
handgun (protected in Bruen and Heller) than an
automatic rifle such as the M16.11
Though dangerousness can be measured by many
metrics, it is best to focus on what we know. The
dangerousness, and use by law-abiding citizens for lawful
purposes. Eugene Volokh, Implementing the Right to Keep and
Bear Arms for Self Defense: An Analytical Framework and a
Research Agenda, 56 UCLA L. REV. 1443, 1481–82 (2009). Volokh
suggested that “Arms” with the same level of practical
dangerousness as those in common use are protected. Id.
Machineguns fail this test due to their rapid rate of fire and the
difficulty of firing them in a discriminating way. The same with
short-barreled shotguns, which combine the lethality of a shotgun
at the short distance characteristic of a criminal attack, and the
concealability of a handgun. Id. at 1482.
The weapons banned by the Act and the ordinances here have
the same practical dangerousness as those in common use among
law-abiding citizens. See id. at 1485.
11
See STEPHEN P. HALBROOK, AMERICA’S RIFLE: THE CASE FOR THE
AR-15, at 9 (2022) (“The features that make an otherwise legal
semiautomatic firearm an ‘assault weapon’ under various laws do
nothing to affect the firearm’s functional operation and, if
anything, promote safe and accurate use.”).
App. 81
traditional demarcation for regulation has been
between automatic and semiautomatic weapons. Fully
automatic weapons have long been heavily regulated,
and lawfully owned, fully automatic firearms are very
rare and expensive.12 The Act and ordinances violate
that tradition.
The banned arms are “in common use.” They are
commonly possessed by law-abiding citizens for lawful
purposes, including self-defense. They may be
“dangerous”—as are all firearms—but they are not
“unusual,” and thus would not be within the history
and tradition recognized in Heller of prohibiting
“dangerous and unusual” weapons.
The Act and ordinances burden the rights of
hundreds of thousands of law-abiding citizens to keep
and bear the types of weapons and magazines that
have long been deemed appropriate for self-defense.
This leaves one option for the government
parties—they must identify analogous weapons
regulations from at or near the time of the Founding.
These are the “how” and “why” questions of Bruen’s
history and tradition test—“how” did the regulation
burden the Second Amendment right, and “why” was
this regulation adopted? The government parties offer
a variety of historical regulations on weapons. These
regulations show, they argue, that the Act and
ordinances are consistent with the Nation’s history and
tradition. But the governments’ examples are not
12
See GARY KLECK, TARGETING GUNS: FIREARMS AND THEIR
CONTROL 108–10 (1997).
App. 82
relevantly similar—their “how” and “why” set them
apart from the Act and ordinances here.
The government parties first point to regulations
limiting the public carry of certain weapons, such as
pistols, dirks (a long-bladed dagger), Bowie knives, and
clubs. See, e.g., 1813 Ky. Acts 100 (restricting concealed
carry of weapons like pocket pistols, dirks, or swords in
a cane, unless the individual was “travelling on a
journey”); 1813 La. Acts. 172; 1819 Ind. Acts 39. But
those regulations are limited only to the public carry of
certain weapons. The Act and ordinances here do more,
prohibiting the sale and eventually the possession of
the banned firearms. The “how” of the current
regulations is more burdensome than historical
regulations limiting public carry of weapons.
The Bowie knife example offered by the government
parties and relied on by the district court in Bevis falls
short as a historical analogue under the “how” and
“why” questions. The Bowie knife was not categorically
banned, just burdened in certain ways. The “how” is
different, as it was taxed, or it could not be carried. The
“why” for the Bowie knife was also different. The knife
was regulated because it was used in duels, not to stop
a mass casualty event—the “why” proffered here.13
Laws banning Bowie knives are also a poor analogue
because of what they ban. Guns and knives present
different dangers. Bodily harm is inflicted up-close and
13
For example, the Naperville ordinance states its bans are a
direct response to mass shootings over the last decade. See
NAPERVILLE, ILL. MUN. CODE tit. 3, ch.19 (reciting list of mass
shootings and incorporating them into text of the ordinance).
App. 83
personal with a knife, and from a distance with a gun.
These differences caution that the “how” and “why”
behind historical Bowie knife regulations are not so
comparable to justify the bans here.
Elsewhere, the government parties note historical
bans on the sale, possession, and carry of pocket
pistols, revolvers, and other kinds of weapons. Such
regulations appear to have been uncommon. One
example is an 1837 Georgia statute stating, “it shall
not be lawful for any merchant … or any person or
persons whatsoever, to sell, or offer to sell, or to keep,
or to have about their person or elsewhere, any of the
hereinafter described weapons, to wit: Bowie, or any
other kinds of knives, manufactured and sold for the
purpose of weapon, or carrying the same as arms of
offence or defense, pistols, dirks, sword canes, spears …
save such pistols as are known and used as horseman’s
pistols … .” 1837 Ga. Acts 90, § 1; see also 1879 Tenn.
Pub. Acts 135–36, An Act to Prevent the Sale of Pistols,
chap. 96 § 1; 1881 Ark. Acts 192, An Act to Preserve
the Public Peace and Prevent Crime, ch. XCVI, § 3.
These regulations also tended to restrict only
unusual kinds of pistols, preserving the right to
continue carrying army or navy pistols. Even more,
Heller, McDonald, and Bruen have solidified the
constitutional right to own and carry handguns, so it is
unclear what insights to draw from these defunct
regulations. The “how” of regulations like the Georgia
statute are thus distinguishable. The current
regulations do far more than limit small, uncommon
handguns or other outlier weapons. They limit access
to many of the most popular models of semiautomatic
App. 84
rifles, handguns, shotguns, and magazines. The Act
and ordinances therefore impose a far greater burden
on the right to keep and bear arms. If all that is not
enough, the Supreme Court of Georgia declared the
1837 statute unconstitutional to the extent it limited
one’s constitutional right to carry arms openly. See
Nunn v. State, 1 Ga. 243, 251 (1846); Bruen, 142 S. Ct.
at 2147 (discussing Nunn and the 1837 Act).
Cook County contends that historical regulations on
gunpowder support their current ordinance. The
County argues that the “why” of those regulations is
comparable to the “why” of the Act and the county’s
ordinance—preventing mass casualty events. But the
County’s argument “flies too high.” The “why” of the
gunpowder regulations was to stop fires resulting from
the combustion of stored flammable materials.
Moreover, while gunpowder storage was regulated,
purchasing and possessing gunpowder was not
prohibited. Fire-safety laws do not create a comparable
burden to an absolute ban on arms. See Heller, 554
U.S. at 632 (“Nothing about those fire-safety laws
undermines our analysis; they do not remotely burden
the right of self-defense as an absolute ban on
handguns.”). Even more, the Court rejected this
gunpowder analogy in Heller. Id. (“Justice Breyer cites
... gunpowder-storage laws that he concedes did not
clearly prohibit loaded weapons, but required only that
excess gunpowder be kept in a special container or on
the top floor of the home. Nothing about those firesafety laws undermines our analysis; they do not
remotely burden the right of self-defense as much as an
absolute ban on handguns.”).
App. 85
Various government parties also offer as historical
analogues regulations on trap or spring guns, fully
automatic machineguns, and short-barreled rifles and
shotguns. See, e.g., 18 U.S.C. § 922(a)(4) (short-barreled
shotguns and rifles); id. § 922(o) (machineguns);
1763–1775 N.J. Laws 346, An Act for the Preservation
of Deer and Other Game, and to Prevent Trespassing
with Guns, ch. 539, § 10 (trap guns). But the “how” and
“why” of those restrictions are materially different as
well. Trap or spring guns—rigged to fire when a string
or other device is triggered by contact—do not provide
a historical analogue. They fire indiscriminately, and
the “why” of banning them—the imbalance of using
lethal force to protect property versus human life—is
different than the “why” the Act and ordinances seek to
address of stopping escalating gun violence. Just so,
machineguns can expend hundreds more rounds per
second than even the fastest semiautomatic firearm,
disqualifying such a law as an analogue.
The majority opinion also relies on anti-carry laws
as analogues. But the challenged Act and ordinances
ban possession of arms. The distinction between anticarry and anti-possession laws is critical: the first
limits only the way a person may use a firearm in
public; the second categorically denies possession of a
firearm for any purpose. To elide this difference
between anti-carry and anti-possession laws ignores
Heller and Bruen. Bruen states that the “central”
consideration in assessing historical analogues is
“whether modern and historical regulations impose a
comparable burden on the right of armed self-defense
and whether that burden is comparably justified.” 142
S. Ct. at 2133.
App. 86
This leaves only those regulations restricting
semiautomatic firearms and ammunition feeding
devices, but those regulations all come from the
twentieth century. Even if valid for other reasons,
Bruen states that regulations so far from the time of
the Founding cannot meaningfully inform the history
and tradition analysis. 142 S. Ct. at 2136–37 (“[W]e
must also guard against giving postenactment history
more weight than it can rightly bear.”).
Even if the government parties had identified a
historical analogue that satisfied the “how” and “why”
inquiries of Bruen’s history and tradition test, a single
such regulation was not enough in that case. 142 S. Ct.
at 2153. In fact, three analogues were not enough in
Bruen. Id. One can ask if there is any “why” in support
of the Act and ordinances that did not also apply to the
ownership and public carry of handguns in Bruen. If
the “how” and “why” of handguns did not satisfy Bruen,
what about these regulations supply a different “why”?
This question was not adequately answered at oral
argument.14
Because the Act and ordinances fail the “how” and
“why” questions of Bruen, the government parties have
not met their burden that these regulations are
“relevantly similar” to a historical law. Some
hypothetical laws might satisfy the history and
tradition test—say, a law that banned carbine rifles
that hold more than six rounds, or possession of a pistol
that need not be reloaded. Magazines fall within the
category of “Arms,” so banning them must also satisfy
14
Oral Arg. at 15:20.
App. 87
the history and tradition test. For example, if there had
been a historical analogue of “25 or fewer bullets is the
number of shots a gun shall fire,” the government
parties might rely on that. But no such laws have been
cited for firearms or magazines. The government
parties have failed to show that the Act and ordinances
are consistent with the Nation’s history and tradition
of firearm regulation. History and tradition do not
support banning firearms and magazines so many
citizens own, possess, and use for lawful purposes.
To finish up likelihood of success on the merits, I
agree with my colleagues that on this record, the
registration requirement does not appear to be
unconstitutional.
B
On the second consideration for a preliminary
injunction, an alleged constitutional violation often
constitutes irreparable harm. See Int’l Ass’n of Fire
Fighters, Loc. 365 v. City of East Chicago, 56 F.4th 437,
450 (7th Cir. 2022); 11A CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 2948.1 (3d ed. 2022) (“When an alleged deprivation of
a constitutional right is involved ... most courts hold
that no further showing of irreparable injury is
necessary.”). For some constitutional violations,
particularly First Amendment violations, irreparable
harm is presumed. Christian Legal Soc’y v. Walker, 453
F.3d 853, 867 (7th Cir. 2006). Although the Supreme
Court has not recognized a presumption of irreparable
harm for Second Amendment violations, it has
emphasized that the constitutional right to bear arms
for self-defense is not “a second-class right, subject to
App. 88
an entirely different body of rules than the other Bill of
Rights guarantees.” Bruen, 142 S. Ct. at 2156 (citing
McDonald v. City of Chicago, 561 U.S. 742, 780 (2010)
(plurality opinion)).
This court has held that when a law is facially
challenged under the Second Amendment, “the form of
the claim and the substance of the Second Amendment
right” create a “harm [that] is properly regarded as
irreparable and having no adequate remedy at law.”
Ezell, 651 F.3d at 699–700. In Ezell, the court likened
the plaintiff’s alleged Second Amendment harm to a
First Amendment challenge, implying a presumption of
irreparable harm. Id. In accord, the Ninth Circuit has
held that there is a presumption of irreparable harm
where a Second Amendment right is violated. See
Baird v. Bonta, 81 F.4th 1036, 1046 (9th Cir. 2023)
(“[W]e presume that a constitutional violation causes a
preliminary injunction movant irreparable harm and
that preventing a constitutional violation is in the
public interest.”) Pre-Bruen, the D.C. Circuit concluded
the same. See Wrenn v. District of Columbia, 864 F.3d
650, 667–68 (D.C. Cir. 2017).
Accordingly, a violation of the Second Amendment
right presumptively causes irreparable harm. The Act
and other ordinances challenged here violate the
Second Amendment, and thus, irreparable harm has
occurred. The majority opinion does not speak to
irreparable harm.
Neither of the final two preliminary injunction
factors—balance of the equities and what the public
interest dictates—cuts against the plaintiffs. Gunshot
victims and gun owners each claim harms, and what is
App. 89
in the public interest on questions of gun possession
and ownership is constantly under public debate. So, I
would rule that preliminary injunctions are justified
against enforcement of the challenged laws.
IV
In reaching the opposite result, the majority opinion
applies precedent and reasoning that Bruen abrogated.
A
Notwithstanding Bruen, the majority opinion relies
on reasoning from this court’s decision in Friedman v.
City of Highland Park, 784 F.3d 406 (7th Cir. 2015).
See also Wilson v. Cook County, 937 F.3d 1028, 1035
(7th Cir. 2019) (relying on Friedman to dismiss a
Second Amendment challenge to the Cook County
ordinance banning assault weapons and large-capacity
magazines). It is true that the Act regulates firearms
and magazines in substantially the same way as the
ordinances in Friedman (Highland Park) and in Wilson
(Cook County), which were upheld. Compare 720 ILL.
COMP. STAT. §§ 5/24-1.9(a)(1), 1.10(a) with Friedman,
784 F.3d at 407 and Wilson, 937 F.3d at 1029–30. As
noted in I., the City of Chicago and City of Naperville
ordinances are functionally similar to the Act and the
Cook County ordinance.
In Friedman, this court announced a unique test for
Second Amendment questions: “whether a regulation
bans weapons that were common at the time of
ratification or those that have ‘some reasonable
relationship to the preservation or efficiency of a well
regulated militia,’ … and whether law-abiding citizens
retain adequate means of self-defense.” 784 F.3d at
App. 90
410. The government parties assert Friedman focused
on the considerations identified by Heller and Bruen,
specifically, historical evidence and the impact of the
regulation on an individual’s meaningful opportunities
for self-defense. Id.; Wilson, 937 F.3d at 1033.
Friedman is therefore compatible with the
constitutional analysis endorsed by Bruen, the
government parties submit, and Friedman remains
good law and should control the outcome here.
But after Bruen, Friedman’s test is no longer viable,
and much of Friedman is inconsistent with it. The
Second Amendment’s “reference to ‘arms’ does not
apply only to those arms in existence in the 18th
century.” Bruen, 142 S. Ct. at 2132 (cleaned up). That
amendment’s operative clause “does not depend on
service in the militia.” Id. at 2127. Indeed, the dissent
in Bruen admitted that under the majority opinion’s
holding the scope of the right to bear arms has “nothing
whatever to do with service in a militia.” Id. at 2177–78
(Breyer, J. dissenting). And “the right to bear other
weapons is ‘no answer’ to a ban on the possession of
protected arms.” Caetano, 577 U.S. at 421 (quoting
Heller, 554 U.S. at 629).
This court in Friedman based its decision in
substantial part on its view of the benefits of the
ordinance, including that the arms ban reduced
“perceived risk” and “makes the public feel safer.” 784
F.3d at 411–12. But Bruen emphatically rejected this
sort of interest-balancing. 142 S. Ct. at 2127. Friedman
also held that categorical bans may be proper even if
the limits do not “mirror restrictions that were on the
books in 1791.” 784 F.3d 410. The Bruen decision
App. 91
superseded that, concluding that a restriction on
Second Amendment rights will survive scrutiny only if
“the government identif[ies] a well-established and
representative historical analogue” to the regulation.
142 S. Ct. 2133.
Friedman looked to history when it held that a
court must ask whether the arms were common at the
time of ratification. 784 F.3d at 410. But in Bruen, the
Court was clear that “the Second Amendment’s
definition of ‘arms’ … covers modern instruments that
facilitate armed self-defense,” “‘even those that were
not in existence at the time of the founding.’” 142 S. Ct.
at 2132 (quoting Heller, 554 U.S. at 582); see Caetano,
577 U.S. at 411–12 (holding lower court’s decision that
arms were unprotected because they were not in
common use at the time of ratification was
“inconsistent with Heller”).
In Wilson, this court described Friedman as
“evaluat[ing] the importance of the reasons for the
[ban] to determine whether they justified the ban’s
intrusion on Second Amendment rights,” such as the
“‘substantial’ interest[]” in “making the public feel
safer” and “overall dangerousness.” Wilson, 937 F.3d at
1036. But Bruen rejected that interest-balancing
approach as “inconsistent with Heller’s historical
approach.” Bruen, 142 S. Ct. at 2129. Governments
may no longer “simply posit that the regulation
promotes an important interest,” id. at 2126, or
advances a “substantial benefit,” Friedman, 784 F.3d at
412. Wilson described Friedman’s application of an
interest-balancing test as “intermediate scrutiny,”
App. 92
Wilson, 937 F.3d at 1036, the approach Bruen expressly
left behind.
Recently, in Atkinson v. Garland, 70 F.4th 1018 (7th
Cir. 2023), this court considered the new world Bruen
presented for Second Amendment jurisprudence, in the
context of possession of a firearm as a felon. Id. at
1022. There, we declined to avoid a Bruen analysis by
relying on Heller and instead stated, “[w]e must
undertake the text-and-history inquiry the Court so
plainly announced and expounded upon at great
length.” Id. Neither the majority nor the dissent in
Atkinson discussed or even cited Friedman, although
those opinions relied on other pre-Bruen precedents
from our court.
In sum, Bruen effectively abrogated Friedman and
Wilson. The “history and tradition” methodology of
Bruen is not the framework applied in either of those
cases. “Stare decisis cannot justify adherence to an
approach that Supreme Court precedent forecloses.”
Fed. Trade Comm’n v. Credit Bureau Ctr., LLC, 937
F.3d 764, 767 (7th Cir. 2019). “When an intervening
Supreme Court decision unsettles [this court’s]
precedent, it is the ruling of the [Supreme] Court …
that must carry the day.” United States v. Wahi, 850
F.3d 296, 302 (7th Cir. 2017). That happened here, and
the district court in Bevis correctly concluded that
Friedman cannot be reconciled with Bruen. This court
should review the challenged laws under Bruen’s
framework, distinct from any interest-balancing
approach, and separate from the reasoning employed in
Friedman and Wilson.
App. 93
The majority opinion is correct that Friedman’s test
differs from the two-step interest balancing test of
other courts that Bruen replaced. Nevertheless,
Friedman cites to history to compare the arms the
regulation bans, rather than the regulations
themselves. 784 F.3d at 410. Friedman discusses the
features of the weapons, including whether they are in
common use for militia or police functions. Id. It also
examines the gun’s characteristics—such as its weight,
caliber, and magazine capacity—as determinative of its
value to self-defense. Id. at 411. Representative of that
analysis, the majority opinion engages in a matching
exercise between the AR-15 and the M16, assessing the
similarity and differences of the characteristics of the
two firearms.
In stark contrast, in Bruen the Court did not say
“Arms” are defined by using the history and tradition
of military versus civilian weaponry, such as the line
drawn in the majority opinion. Rather, the Court
looked to common usage to define the term “Arms.”
Even more, the assessment in Bruen is whether a
firearm regulation has a historical analogue, 142 S. Ct.
at 2133, not whether a weapon does. Under Bruen’s
framework, courts can entertain the parties’ arguments
as to whether a regulation is a historical analogue. Per
Bruen, whether firearm regulations were historically
grounded in a military versus civilian distinction is to
be performed as part of the history and tradition
analysis, not in the plain text review, as the majority
opinion does.
App. 94
B
The majority opinion’s reasoning departs from
Bruen in other ways, which I examine next.
1. A weapon’s military counterpart does not
determine whether it is an “Arm.”
The AR-15 is a civilian, not military, weapon. No
army in the world uses a service rifle that is only
semiautomatic.15 Even so, the majority opinion uses a
civilian firearm’s military counterpart to determine
whether it is an “Arm.” But neither Heller nor Bruen
draw a military/civilian line for the Second
Amendment. Similarity between the AR-15 and the
M16 should not be the basis on which to conclude that
the AR-15 is not a weapon used in self-defense.
The majority opinion concludes that Heller limits
the scope of “Arms” in the amendment to those not
“dedicated to military use” and those possessed for a
lawful purpose. Citing to “historical support” that “the
Arms protected by the Second Amendment do not
include weapons for the military,” the majority opinion
focuses on Heller’s comment about the M16 rifle. 554
U.S. at 627. The AR-15 and the M16 are similar
weapons, my colleagues conclude, which means the AR15 is beyond protection under the Second Amendment.
My colleagues read the passages in Heller
discussing weapons with military capabilities too
broadly, however, placing controlling weight on
15
E. Gregory Wallace, “Assault Weapon” Myths, 43 S. ILL. U. L.J.
193, 205–06 (2018).
App. 95
supporting or explanatory language in that decision.
For example, Heller did not limit the scope of “Arms” to
those without an analogous military capacity. 554 U.S.
at 581–82. The majority opinion emphasizes the
statement in Heller that “Arms” are “weapons that
were not specifically designed for military use and were
not employed in a military capacity.” Maj. Op. at 26
(emphasis omitted). But this passage most naturally
means that the public understanding of “Arms”
encompassed more than weapons designed for or
employed in a military capacity. At that section of
Heller, the Court was refuting the argument that the
Second Amendment only protected a military right to
keep and bear arms. Instead, “Arms” was broad enough
to include “any thing that a man wears for his defence,
or takes into his hands, or useth in wrath to coast at or
strike another.” Heller, 554 U.S. at 581. That passage
in Heller does not support a reading that weapons the
military uses are not “Arms.”
Relying on Heller’s discussion of United States v.
Miller—the Supreme Court’s 1939 decision upholding
a conviction under the National Firearms Act against
a Second Amendment challenge—the majority opinion
points out that militaristic weapons are not “bearable”
and thus not “arms” at all. Justice Stevens in dissent in
Heller viewed Miller as endorsing a military-only view
of the Second Amendment. To him, Miller says
regulating “the nonmilitary use and ownership of
weapons” is fine—so the Amendment protects only the
“right to keep and bear arms for certain military
purposes.” Id. at 637–38 (Stevens, J., dissenting).
App. 96
But according to Heller, Miller does not say that the
Second Amendment protects machineguns as part of
ordinary military equipment. Rather, Miller explains
that a short-barreled shotgun, the weapon at issue, is
not “‘any part of the ordinary military equipment’” nor
“‘could contribute to the common defense.’” Id. at 622
(quoting Miller, 307 U.S. at 178). In Heller, the Court
explained, “we therefore read Miller to say only that
the Second Amendment does not protect those weapons
not typically possessed by law-abiding citizens for
lawful purposes, such as short-barreled shotguns.” Id.
at 625.
The majority opinion here quotes this passage and
reframes it as a military-analogue test. It introduces
the passage with Heller’s observation that an M16 is
“most useful in military service.” Id. at 627. But after
Heller, we know Miller does not address a weapon’s
military use. Because the National Firearms Act of
1934 targeted the firearms most commonly used by
criminals and gangs, Miller’s “lawful use” language
relates to criminal use, not military use.
One example of this military-analogue test falling
short is when the majority opinion compares the rates
of fire of the AR-15 and the M16. My colleagues credit
the AR-15’s rate of fire as “‘only’ 300 rounds per
minute,” which they do not see as a relevant difference
from the M16’s 700 rounds per minute. Maj. Op. at 33.
The two record sources they point to do not support a
300-rounds-per-minute rate; in fact, those sources give
good reasons to doubt that figure.
The first is the district court’s opinion in Bevis,
which explains: “[A] shooter using a semiautomatic
App. 97
weapon can launch thirty rounds in as little as six
seconds, with an effective rate of about a bullet per
second for each minute of firing, meeting the U.S.
Army definition for ‘rapid fire.’” Set to the side the
district court’s concession that the effective rate is
actually only sixty rounds per minute. For the 300rounds-per-minute figure, the district court cited a law
journal article that spends nine pages discussing the
dubious origins of the 300-rounds-per-minute claim.16
Wallace agrees that 30 shots in six seconds is
possible—if you are an expert at operating firearms
and you neglect aiming and reloading.17
The second source that might be referenced for the
figure is a government witness’s report in Herrera.
James Yurgealitis included a chart listing weapons, an
ammunition type, and the “semiautomatic cyclic rate”
of each. Each rifle, including “M-16/AR-15 Rifle,” has a
cyclic rate of exactly 300 rounds per minute, and the
three pistols have a rate of “300–400 rounds per
minute.” Yurgealitis offers no source for his
calculations. He does not describe the firing conditions
or how the shooter timed the shots.
Yurgealitis describes the rate as “cyclic,” a type of
fire where “the gunner holds the trigger to the rear
while the assistant gunner feeds ammunition into the
weapon.” DEP’T OF THE ARMY, ARMY TRAINING
PUBLICATION: INFANTRY PLATOON AND SQUAD, ATP 321.8, at Appendix F. The cyclic rate “produces the
16
See Wallace, supra note 15 at 214–22.
17
See id. at 217–18.
App. 98
highest volume of fire the machine gun can fire” and is
a drastic step, as it “can permanently damage the
machine gun and barrel and should be used only in
case of emergency.” Id. It is difficult to see how a
gunner could fire an AR-15 cyclically. Because it is a
semiautomatic firearm, if the trigger were held to the
rear, the cyclic rate would be one round per minute.
Yurgealitis does not explain how this can be done.
The effective rate of fire, rather than the cyclic rate,
would be a better comparison. There, Yurgealitis helps.
He includes in his report a table from an Army field
manual on rifle marksmanship listing the M16’s
maximum semiautomatic effective rate at 45 rounds
per minute—more than four times slower than its
maximum automatic effective rate.
Heller does not draw a line between firearms that
are military counterparts and those that are not. That
demarcation should not decide whether firearms and
magazines are protected under the Second
Amendment.
2. A “military weapon” is defined too broadly.
Even if Heller drew such a line, the majority
opinion’s standard for what constitutes a “military
weapon” renders the “military” category substantially
overbroad.
The majority opinion draws a line between “private”
or “mixed private/military” weapons on one side (also
characterized as “dual use” weapons) and “military
weapons” on the other side. Military weapons are
defined as “weapons that may be essentially reserved
to the military,” Maj. Op. at 31 n.8—meaning that a
App. 99
military weapon is one not made available for public
use. The only “characteristic” that matters is that the
government decided to ban it. “Dual use” weapons are
those “private parties have a constitutionally protected
right to ‘keep and bear’” and “the military provides [] to
its forces.” Id. “In this sense, there is a thumb on the
scale in favor of Second Amendment protection.” Id.
Under the majority opinion’s definition, “dual use”
weapons are on the side of the line protected by the
Second Amendment.
Applying their framework, my colleagues find the
AR-15 “more like” the M16 by comparing the firearms’
characteristics. Id. To my colleagues, the firearms look
the same (“same core design”), operate the same (“same
patented operating system”), and have similar
specifications (same ammunition, kinetic energy,
muzzle velocity, and effective range), identifying “the
only meaningful distinction” as an M16’s automaticfire capability. Id. at 31–32. But because the AR-15 is
not “essentially reserved to the military” and shares
characteristics with “private” weapons, such as being
semiautomatic, the AR-15 is at most a “dual use”
weapon. So under the majority opinion’s categories, the
AR-15 should warrant Second Amendment protection.
In any event, because the majority opinion defines
a military weapon as any that “may be essentially
reserved to the military,” a weapon’s characteristics are
not relevant to how it is categorized. Thus, any combat
weapon would be a military weapon. This effectively
allows the U.S. Armed Forces to decide what “Arms”
are protected under the Second Amendment. Such a
“military veto” is mistaken for at least three reasons.
App. 100
First, the military has historically selected for
commission firearms already publicly available and
thus on the “dual use” side of the line. Privately
available repeating and semiautomatic rifles, and the
arms the American military selected for wartime use,
overlapped substantially at least until the 1930’s.
When the Second Amendment was ratified,
repeaters—firearms capable of repeated firing before
they required manual reloading—were useful for
military purposes and were widely available for civilian
purchase. The Girandoni air rifle, for example, was
invented for the Austrian army.18 The “state-of-the-art
repeater” at the time, the Girandoni was useful for
hunting as well—Meriwether Lewis took one on his
expedition.19 In 1828, the military awarded a contract
to a gunsmith to produce the Jennings repeater for
military use.20 But the military only “considered the
guns promising” after seven years of “private use,” as
the repeater had been circulating at least since 1821.21
Another repeater, the Henry, won a military contract
after a Union captain used it to defend his home
18
NICHOLAS J. JOHNSON, ET AL., FIREARMS LAW AND THE SECOND
AMENDMENT: REGULATION, RIGHTS, AND POLICY 2206 (3d ed., 2021).
19
See id.
20
See id. at 2221.
21
Id.
App. 101
against seven Confederates who ambushed him while
eating dinner with his family.22
In 1900, the military began considering
semiautomatic rifles but, after years of searching,
decided to stick with the .30'06 Springfield bolt-action
rifle.23 Even though “semi-automatic rifles for the
civilian market were abundant,” the military declined
to select one because they were too complicated and
brittle for field use.24 In the 1930s, the military’s desire
to issue semiautomatic rifles caused it to “encourage[]
… private experimentation” in development and
testing.25 A military veto contravenes the robust history
of “dual use” weapons beyond the private sector.
Second, the military has historically commissioned
pistols, a firearm that is an “Arm” under Heller. Pistols
have always been standard-issue military firearms.
Under the majority opinion’s approach, Heller would
have been mistaken.
Major Pitcairn began the American Revolution with
a shot from his pistol.26 General George Washington
22
HORACE WILLIAM SHALER CLEVELAND, HINTS TO RIFLEMEN
180–81 (1864). See also id. at 179 (reproducing letter from a
private citizen testifying to the exceptional quality of the weapon).
23
See JOHNSON at 2233–34.
24
Id. at 2233.
25
Id. at 2234.
26
See CHARLES WINTHROP SAWYER, 1 FIREARMS IN AMERICAN
HISTORY: 1600 TO 1800, at 72 (1910).
App. 102
carried pistols into battle at Valley Forge, Monmouth,
and Yorktown.27 In 1811, a brigade major in the
Massachusetts militia described the pistol as a
standard weapon for an infantryman in a
comprehensive guide to the day’s military science.28
The military has not stopped issuing pistols. In
1911, after lengthy trials and revisions with Colt and
gun designer John Browning, the military selected for
its troops the Colt Model 1911.29 It is unclear whether
that model was available for civilian purchase after the
military contract in 1911. But like more common
civilian handguns, the M1911 was semiautomatic and
had an eight-round magazine.30 Indeed, the Civilian
Marksmanship Program, a federally chartered
501(c)(3) entity responsible for arranging sales of
decommissioned military service weapons to the public,
sells Colt M1911s today.31
27
See Evan Brune, Arms of Independence: The Guns of the
American Revolution, A M . R IFLEMAN (July 2, 2021),
https://www.americanrifleman.org/content/arms-of-independencethe-guns-of-the-american-revolution [https://perma.cc/9S69-T56Y].
28
See E. HOYT, PRACTICAL INSTRUCTIONS FOR MILITARY OFFICERS
111 (1811).
29
See JOHNSON at 2232.
30
See id.
31
See About, C I V . M ARKSMANSHIP P ROG . (2023),
https://thecmp.org/about/ [https://perma.cc/L7T5-6T5D];1911
Information, CIV. MARKSMANSHIP PROG. (2023),
https://thecmp.org/sales-and-service/1911-information/
[https://perma.cc/7HQW-G3VJ].
App. 103
In the 1980s, the military switched to the Beretta
M9, a handgun with a counterpart available for
purchase today on Beretta’s website. In fact, the M9
was designed and available to civilians a decade before
the military selected it as the Beretta 92.32 The only
differences between the military-issue M9 and the one
for public sale are the markings, the dots on the sights,
and the screw heads.33 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.
Third, the military’s decommissioning and sale of its
surplus weapons would mean that the Second
Amendment right might spring into and out of life. The
military sometimes decommissions service weapons
and sells them to the public through the Civilian
Marksmanship Program, as mentioned above. As with
the M16, the military also decides not to renew
contracts for weapons it deems no longer fit for military
32
See American Service Pistols & Civilian Counterparts,
KEYSTONE SHOOTING CTR. (2023), https://keystoneshootingcenter.
com/blog/american-service-pistols-civilian-counterparts
[https://perma.cc/UG45-V46Q].
33
See Christopher Bartocci, Beretta Government vs Commercial
M9 Identification, SMALL ARMS SOLUTIONS LLC (May 28, 2018),
https://smallarmssolutions.com/home/beretta-government-vscommercial-m8-identification [https://perma.cc/EDT4-JEXT]; Bob
Campbell, Range Report: Beretta’s M9 Civilian Version, CHEAPER
THAN D IRT : THE S HOOTER ’ S L OG (Feb. 22, 2016),
https://blog.cheaperthandirt.com/berettas-m9-civilian-version
[https://perma.cc/VL7T-ZXQA] (“The M9 is a variant that’s as close
to the military M9 as possible. The sights are marked in a different
manner, and the finish differs from the standard M92.”).
App. 104
use. The majority opinion does not explain the status of
a weapon like this, including whether the right to
possess it springs to life, or if its analogues become
“Arms.”
3. The examples given are not historical analogues.
The majority opinion sets forth “the relevant
question [a]s what are the modern analogues to the
weapons people used for their personal self-defense in
1791, and perhaps as late as 1868.” Maj. Op. at 38. But
when declaring its holding in Bruen, the Court
discussed historical analogues with reference not to
weapons, but to regulations. Following Heller, Bruen
considered “whether ‘historical precedent’ from before,
during, and even after the founding evinces a
comparable tradition of regulation.” Bruen, 142 S. Ct.
2111, 2131–32. “Only if a firearm regulation is
consistent with this Nation’s historical tradition may a
court conclude that the individual’s conduct falls
outside the Second Amendment’s ‘unqualified
command.’” Id. at 2126.
The seven historical examples the majority opinion
offers as comparators are laws or ordinances which it
says support “a distinction between weapons and
accessories designed for military or law-enforcement
use, and weapons designed for personal use.” Maj. Op.
at 45. For my colleagues, the challenged Act and
ordinances carry forward this same distinction. Under
Bruen, though, these examples do not satisfy the “how”
and “why” questions in the history and tradition test,
and thus are not comparators for the challenged Act or
ordinances.
App. 105
The first example is a 1746 Boston ordinance
outlawing the discharge of a cannon, gun or pistol
within city limits.34 The second is an allusion to similar
ordinances in Cleveland in the nineteenth century. The
fourth refers to late nineteenth century ordinances
restricting the carry of various weapons. except for
peace officers. Such prohibitions differ, however, from
a categorical ban of a class of weapons from private
ownership which burden the right of armed selfdefense. Regulations against the discharge of weapons
compare better to modern criminal statutes
prohibiting, for example, the reckless discharge of a
firearm. See 720 ILL. COMP. STAT. § 5/24-1.5(a). And
prohibitions on the carrying of certain weapons do not
amount to a categorical ban of whole classes of
firearms. These examples thus fail the “how” question
in Bruen.
The fifth, sixth, and seventh examples are the
National Firearms Act of 1934 and two amendments to
it: the Omnibus Crime control and Safe Streets Act of
1968, and Firearm Owners’ Protection Act of 1986. Yet
these examples do not provide insight into the public
understanding of the Second Amendment right in 1791
(or in 1868). They are too far removed from the
ratification of the Constitution (or of the Fourteenth
Amendment) to qualify as historical analogues under
Bruen. They therefore fail the “why” question in Bruen.
The remaining third example cites dozens of Bowie
knife regulations which forbid or limit their use,
34
Heller rejected this regulation as a historical analogue. 554 U.S.
at 633.
App. 106
specifically citing an 1884 Arkansas statute outlawing
“the sale of all dirks, Bowie knives, cane-swords, metal
knuckles, and pistols, except as for use in the army or
navy of the United States.” This law was passed after
ratification of the Fourteenth Amendment and banned
the sale of these knives. It did not categorically ban
their possession. This example fails the “how” and the
“why” test of Bruen for the reasons given previously.
Attempting to show that the “how” test has been
correctly applied, my colleagues point to what they
consider a “huge carve-out” in the Act. Maj. Op. at 39.
To the contrary, exceptions to the categorical ban in the
Act are narrow. The Act outright forbids the
manufacture, delivery, sale, importation, and
purchasing of the covered arms within the state of
Illinois. On January 1, 2024, a total ban on possession
of the covered arms takes effect. 720 ILL. COMP. STAT.
§ 5/24-1.9(c). Though an exception exists for those who
submit a compliant “endorsement affidavit” to the
Illinois State Police, id. § 5/24-1.9(d), the majority
opinion mistakes its scope. The exception is limited to
the sale or transfer of a covered arm: (1) to seven
specially excepted classes of authorized persons; (2) to
the United States; or (3) in another state or for export.
Id. § 5/24-1.9(e). And the only people who can take
advantage of this exception are current in-state
residents who possess a covered arm prior to
January 1, 2024, and future in-state residents who
move into Illinois already in possession of a covered
arm. Id.35 Such a narrow exception cannot legitimize a
35
The municipal ordinances are even more limiting, excepting
from their reach only military and law enforcement personnel.
App. 107
broad categorical ban on the ownership, possession,
purchase, and sale of a vast swath of arms.
For my colleagues, it is sufficient that the seven
regulations deemed similar “are representative of [the]
tradition” of “regulating the especially dangerous
weapons of the time.” Yet, Bruen requires more. The
particulars of the historical analogues are critical; they
illustrate whether the Act and the municipal
ordinances place comparable burdens on the Second
Amendment right when considered against historical
analogues. Bruen itself gave weight to the differences
between the particulars of regulations. 142 S. Ct. at
2148–49 (rejecting nineteenth century surety statutes
as sufficiently analogous to restrictions on public carry
because these laws did not constitute a “ban[] on public
carry,” indicating their “burden” on public carry was
“likely too insignificant.”). The examples the majority
opinion cites may illustrate weapons regulation
generally. But none of them is a categorical ban on an
entire class of arms.
V
Since Bruen, this is the first federal appellate court
to uphold a categorical ban on
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