Petition for Writ of Certiorari — Caleb Barnett, et al., Petitioners v. Kwame Raoul, Attorney General of Illinois, et al.
Supreme Court briefFeb 12, 2024
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APPENDIX
TABLE OF APPENDICES
Appendix A
Order, United States Court of Appeals for
the Seventh Circuit, Barnett v. Raoul,
No. 23-1825 (May 4, 2023) .......................... App-1
Appendix B
Order, United States Court of Appeals for
the Seventh Circuit, Barnett v. Raoul,
No. 23-1825 (May 12, 2023) ........................ App-2
Appendix C
Opinion, United States Court of Appeals
for the Seventh Circuit, Barnett v. Raoul,
No. 23-1825 (Nov. 3, 2023) .......................... App-5
Appendix D
Order, United States Court of Appeals for
the Seventh Circuit, Barnett v. Raoul,
No. 23-1825 (Dec. 11, 2023)..................... App-105
Appendix E
Memorandum & Order, United States
District Court for the Southern District of
Illinois, Barnett v. Raoul, No. 23-cv00209 (Apr. 28, 2023) .............................. App-106
Appendix F
Relevant Statutes .................................... App-138
720 ILCS 5/24-1 ................................ App-138
720 ILCS 5/24-1.9 ............................. App-148
720 ILCS 5/24-1.10 ........................... App-169
App-1
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
________________
No. 23-1825
________________
CALEB BARNETT, et al.,
v.
Plaintiffs-Appellees,
KWAME RAOUL and BRENDAN F. KELLY,
Defendants-Appellants.
________________
Filed: May 4, 2023
________________
ORDER
________________
The following is before the court: STATE
DEFENDANTS’ EMERGENCY MOTION TO STAY
THE
DISTRICT
COURT’S
PRELIMINARY
INJUNCTION ORDER PENDING APPEAL, filed on
May 2, 2023, by counsel for the appellants.
The motion for a stay of the district court’s
preliminary injunction is GRANTED, pending further
order of the court. Any response to the motion for a
stay must be received by the close of business on May
9, 2023. Any response should discuss the bearing of
Friedman v. Highland Park, 784 F.3d 406 (7th Cir.
2015), and Wilson v. Cook County, 937 F.3d 1028 (7th
Cir. 2019), in addition to any other matters the
appellees deem pertinent.
App-2
Appendix B
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
________________
No. 23-1353
________________
ROBERT BEVIS, et al.,
v.
Plaintiffs-Appellants,
CITY OF NAPERVILLE, et al.,
Defendants-Appellees,
STATE OF ILLINOIS,
Intervening Appellee.
________________
Nos. 23-1793, 23-1825, 23-1826,
23-1827, & 23-1828
________________
JAVIER HERRERA, CALEB BARNETT, et al.,
v.
Plaintiffs-Appellants,
KWAME RAOUL, et al.,
Defendants-Appellees.
________________
Filed: May 12, 2023
________________
ORDER
________________
App-3
Herrera v. Raoul, No. 23-1793, is consolidated
with Barnett v. Raoul, Nos. 23-1825 through 23-1828.
These appeals will be briefed on the following
schedule:
1. Briefs for the governmental parties
(whether appellants or appellees) are due
June 5, 2023.
2. Briefs for the plaintiffs are due June 19,
2023.
3. Reply briefs, if any, are due June 26, 2023.
Motions to extend these dates, or to allow late
filings by amici curiae, will not be entertained.
One litigant may file only one brief in all five
consolidated appeals, and the court encourages
multiple litigants on the same side to file joint briefs
to the extent possible.
These consolidated cases, together with Bevis v.
Naperville, No. 23-1353, will be argued the morning of
June 29. Argument is set for 90 minutes, with the
governmental litigants sharing 45 minutes and the
litigants contesting the laws sharing 45 minutes. The
court encourages counsel to agree on an allocation that
minimizes the number of different lawyers who will
present argument. If counsel are unable to agree, they
should notify the court, which will allocate time.
In the meantime, the statutes remain in effect.
This court already has denied a motion for an
injunction pending appeal in Bevis. As for the Barnett
appeals: based on our review of the parties’
submissions, the breadth of the litigation, and the
differing conclusions reached by different district
judges, we conclude that the stay of the district court’s
App-4
order already entered will remain in effect until these
appeals have been resolved and the court’s mandate
has issued.
App-5
Appendix C
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
________________
No. 23-1825 1
________________
CALEB BARNETT, et al.,
v.
Plaintiffs-Appellants,
KWAME RAOUL and BRENDAN F. KELLY,
Defendants-Appellees.
________________
Argued June 29, 2023
Decided: November 3, 2023
________________
Before: Easterbrook, Wood, and Brennan,
Circuit Judges.
________________
OPINION
________________
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
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-00215SPM).
App-6
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
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,
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.
3 See Matthew Seelinger, The M28/M29 Davy Crockett Nuclear
Weapon
System,
The
Army
Historical
Foundation,
App-7
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, 231827, and 23-1828.
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 8-20https://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-8
010 to 8-20-100; and City of Naperville Ordinances
No. 3-19-1 to 3-19-3. We make note of the municipal
laws only when their specific pro-visions 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
three-readings 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.
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 large-capacity 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 5/24-1.9 and 5/24-1.10. Section
App-9
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 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
4 The more formal name of the relevant part of the law was the
Public Safety and Recreational Firearms Use Protection Act.
App-10
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 5/241.9(e), includes peace officers; qualified active and
retired law-enforcement officers; prison wardens and
“keepers”; members of the 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 5/241.9(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
App-11
“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 the device is used in a permitted
place. Id. 5/24-1.10(d). It has an analogous set of
exceptions for trained professionals. Id. 5/24-10(d), at
¶ 1.
Broadly speaking, violations of the assaultweapon ban are classified as felonies when the
violation involves guns or gun parts, and as
misdemeanors when the violation involves .50 caliber
cartridges. Id. 5/24-1(b).
App-12
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. 232353)
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
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.)
App-13
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 as-sault 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.
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
App-14
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. 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]
App-15
may re-quire 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 un-likely 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’ 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
App-16
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 at-tending 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 codified will be enjoined.” Barnett v.
Raoul, No. 3:23-cv-00209-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
App-17
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 self-defense. 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] 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
App-18
[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
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
App-19
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 is-sued.”
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 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.
App-20
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.
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
App-21
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 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.
App-22
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
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.
App-23
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-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
App-24
“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 militarygrade 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 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
App-25
and use question, we cautioned against circular
reasoning:
Machine guns aren’t commonly owned for
lawful purposes today because they are
illegal; semi-automatic weapons with largecapacity 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”
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.
5 The dissent embraces the reasoning we rejected in Friedman;
it asserts that circularity concerns are more hypothetical than
actual.
App-26
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 selfdefense.” 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 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
App-27
weapons and large-capacity magazines.” Id. at 1036.
Indeed, Wilson is notable for what it did not say: it
never said that Friedman had used intermediate
scrutiny or means-end 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
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.
App-28
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:
[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.
App-29
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 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
App-30
decisions and historical sources indicate that the Arms
the Second Amendment is talking about are weapons
in common use for self-defense. That is not to say that
there are no other lawful uses for weapons—sporting
uses, collection, and competitions come to mind as
examples. But the constitutional protection exists to
protect the individual right to self-defense, and so that
will be our focus.
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.) (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.
App-31
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 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 law-abiding citizens for lawful purposes, such as
short-barreled shotguns. That accords with the
App-32
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 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
App-33
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 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,
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
App-34
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, 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
before Friedman, one scholar of the Second Amendment wrote
that “Heller and McDonald … focused on the right of a lawabiding person to have a handgun in his or her home for selfprotection,” 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-35
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
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
App-36
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 highcapacity magazines are much more like machineguns
and military-grade weaponry than they are like the
many different types of firearms that are used for
individual self-defense (or so the legislature was
entitled to conclude). 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
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.
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.
App-37
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
auto-sear 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).
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 bump-stock device) that “is
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%20vs%20Op%20R od%20Drive,%20020815.pdf.
App-38
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.
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 AR15 by itself is not a machinegun because it fires “only”
at the rate of 300 rounds per minute, and the autosear 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
App-39
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-cv00691-O, 2023 WL 4539591 (N.D. Tex. June 30, 2023),
appeal docketed, No. 23-10718, 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 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 700-round 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.
App-40
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.
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
App-41
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.
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
App-42
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
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 as-sault
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
App-43
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-peerreviewed 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 remark,
“There are three kinds of lies: Lies, Damned Lies, and
Statis-tics.”
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
App-44
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
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 im-pressive standing army, and that
such weapons existed. The weapons used for selfdefense 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
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-statesfirearm-production-historical/.
App-45
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
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
App-46
“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, 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.
App-47
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 protect public health,
safety, and welfare. See City of Naperville, Ill.,
Ordinance No. 22-099, at 4 (Aug. 16, 2022). The massshooting 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,
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-48
142 S. Ct. at 2133 n.7) the Second Amendment itself
performed the necessary means/ends 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 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.
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 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.
12
App-49
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 1742-1756, at 309 (1878).
•
Other cities, such as Cleveland, Ohio,
implemented similar ordinances throughout
the 19th century, again exempting military
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, §§ 19071909, 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
App-50
“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
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
App-51
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.
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 al-ready 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
App-52
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.
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
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 ap-pears
to depend on the type of means/end analysis that Bruen
disapproved.
App-53
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 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.
App-54
(Foldout Next Page)
App-55
Appendix
Jurisdiction
Actions Prohibited
Firearms Covered
Magazines Covered
Illinois
• Manufacture
• Semiautomatic rifles that
have one or more assault
• Rifles—over 10
rounds
• Semiautomatic pistols that
have one or mor assault
weapon-like modifications
• Handguns—over 15
rounds
• Delivery
• Sale
• Purchase
• Possession (pre-existing
possession and private
post-Act use are
permissible if
registration requirement
are met
Naperville
• Commercial sale
• Semiautomatic shotguns with
a revolving cylinder or that
have one or more assault
weapon-like modifications
• Various assault weapons
listed by name
• Semiautomatic rifles that can
accept more than 10 rounds or
that have one or more assault
weapon-like modifications
• Devices that accelerate the
rate of fire of a semiautomatic
rifle
• Various assault weapons
listed by name
N/A
App-56
Cook County
• Manufacture
• Sale
• Offer or display for sale
• Give
• Lend
• Transfer of ownership
• Acquire
• Carry
• Possession
• Semiautomatic rifles that
have one or more assault
weapon-like modifications
• Magazines over 10
rounds
• Semiautomatic pistols that
have one or more assault
weapon-like modifications
• Semiautomatic shotguns with
a revolving cylinder or that
have one or more assault riflelike modifications
• Combination kits from which
an assault weapon can be
assembled
• Various assault weapons
listed by name
Chicago
• Import
• Sale
• Manufacture
• Transfer of ownership
• Possession
• Semiautomatic rifles with the
ability to accept a detachable
magazine and that have one
or more assault weapon-like
modifications
• Semiautomatic rifles that
have a fixed magazine with
the capacity to accept more
than 10 rounds
• Handguns—over 15
rounds
App-57
• Devices that accelerate the
rate of fire of a semiautomatic
rifle
• Shotguns that have one or
more assault weapon-like
modifications
• Various assault weapons
listed by name
App-58
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
102-1116, 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 commonly-owned 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
detachable magazines and one additional qualifying
App-59
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 AR-15. The Act further prohibits “copies,
duplicates, variants, or altered facsimiles with the
capability of any such weapon.” Id. § 5/241.9(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 semi-automatic
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.
§ 5/24-1.9(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
County and City of Chicago ordinances, challenged
along with the Act in Herrera, are even broader. Cook
County bans possession of “assault weapons,” Cook
App-60
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 §§ 8-20-010, 8-20-075, 8-20-085. 1
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,
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. § 5/241.9(a)(1)(C). More precisely, the Act also bans semiautomatic
pistols with fixed magazines over 15 rounds. Id. § 5/241.9(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. § 5/241(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-61
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 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
App-62
presumptively protects the conduct. Bruen, 142 S. Ct.
at 2129-30. That presumptive protection is of all
bearable instruments that facilitate armed selfdefense, 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.
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 re-peated in
Bruen, 142 S. Ct. at 2143.
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-63
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 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
3 See D.E. 99, Brief for Amici Curiae Idaho, et al., at 6.
App-64
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).
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
App-65
a regulatory blank check.”); see J. Harvie 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 wellestablished 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 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
self-defense is ‘the central component’ of the Second
Amendment right,” id. at 2133 (citing McDonald, 561
App-66
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.
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
App-67
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 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
App-68
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
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,
App-69
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
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
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 explained in dissent, circularity concerns deal in the
hypothetical more than the actual. Id. at 416 n.5.
App-70
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
factor in a city’s zoning rules). For example, in Bruen
the Court considered Henry VIII’s “displeasure with
hand-guns” due to his concern that they would
“threaten[] English-men’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 “public-safety reasons” behind several Colonialera individual-arms-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
App-71
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 AngloAmerican 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 whether the legislature obeyed it here. The socalled 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
App-72
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 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.
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-73
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, plain-tiffs 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 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
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-74
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 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 com-mon. 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
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/2LX6UN3B].
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).
8
App-75
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 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
App-76
relative term, as pistols may ship with magazine sizes
ranging from 5 to 20 rounds, and common self-loading
rifles have a standard mag-azine capacity of between
20 and 30 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
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.springfield-ar-mory.com/xd-series-handguns/xd-smod-2-osp-handguns/xd-s-mod-2-osp-3-3-single-stack-45-acphandgun [https://perma.cc/64NQ-KRWM].
9
10 One pre-Bruen analysis offered a test for “Arms” consistent
with the elements Heller pointed to: common use, unusualness,
App-77
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
traditional demarcation for regulation has been
between automatic and semiautomatic weapons.
Fully automatic weapons have long been heavily
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-78
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
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
See Gary Kleck, Targeting Guns: Firearms and Their
Control 108-10 (1997).
12
App-79
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 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.
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-80
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
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).
App-81
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 firesafety 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 fire-safety laws undermines our
analysis; they do not remotely burden the right of selfdefense as much as an absolute ban on handguns.”).
Various government parties also offer as
historical analogues regulations on trap or spring
guns, fully automatic machineguns, and shortbarreled 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
App-82
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 anti-carry 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.
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”
App-83
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 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
14 Oral Arg. At 15:20.
App-84
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 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
App-85
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 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
App-86
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. §§ 5/241.9(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 selfdefense.” 784 F.3d at 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 selfdefense. 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
App-87
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 superseded that, concluding that a
restriction on Second Amendment rights will survive
scrutiny only if “the government identif[ies] a wellestablished 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”).
App-88
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,”
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-andhistory 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
App-89
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.
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’
App-90
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.
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
15 E. Gregory Wallace, “Assault Weapon” Myths, 43 S. Ill. U.
L.J. 193, 205-06 (2018).
App-91
means the AR-15 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
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
App-92
certain military purposes.” Id. at 637-38 (Stevens, J.,
dissenting).
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.
App-93
The first is the district court’s opinion in Bevis,
which explains: “[A] shooter using a semiautomatic
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 3-21.8,
at Appendix F. The cyclic rate “produces the highest
16 See Wallace, supra note 15 at 214-22.
17 See id. at 217-18.
App-94
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 military weapon is one not made
available for public use. The only “characteristic” that
App-95
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.
First, the military has historically selected for
commission firearms already publicly available and
App-96
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 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
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.
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).
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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
25
development and testing.
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 standardissue 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 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
23 See Johnson at 2233-34.
24 Id. at 2233.
25 Id. at 2234.
See Charles Winthrop Sawyer, 1 Firearms in American
History: 1600 to 1800, at 72 (1910).
26
27 See Evan Brune, Arms
of Independence: The Guns of the
American Revolution, Am. Rifleman (July 2, 2021),
https://www.americanrifleman.org/content/arms-ofindependence-the-guns-of-the-american-revolution
[https://perma.cc/9S69-T56Y].
28 See E. Hoyt, Practical Instructions for Military Officers 111
(1811).
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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
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
29 See Johnson at 2232.
30 See id.
See About, Civ.
Marksmanship Prog. (2023),
https://thecmp.org/about/ [https://perma.cc/L7T5-6T5D]; 1911
Prog.
(2023),
Information,
Civ.
Marksmanship
https://thecmp.org/sales-and-service/1911-information/
[https://perma.cc/7HQW-G3VJ].
31
See American Service Pistols & Civilian Counterparts,
Keystone Shooting Ctr. (2023), https://keystoneshootingcenter
.com/blog/american-service-pistols-civilian-counterparts
[https://perma.cc/UG45-V46Q].
32
See Christopher Bartocci, Beretta Government vs
Commercial M9 Identification, Small Arms Solutions LLC (May
28,
2018),
https://smallarmssolutions.com/home/berettagovernment-vs-commercial-m8-identi-fication [https://perma.cc/
33
App-99
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 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
EDT4-JEXT]; Bob Campbell, Range Report: Beretta’s M9
Civilian Version, Cheaper Than Dirt: The Shooter’s Log (Feb. 22,
2016),
https://blog.cheaperthandirt.com/berettas-m9-civilianversion [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-100
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 lawenforcement use, and weapons designed for personal
use.” Id. 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.
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 self-defense. 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. § 5/241.5(a). And prohibitions on the carrying of certain
weapons do not amount to a categorical ban of whole
34 Heller rejected this regulation as a historical analogue. 554
U.S. at 633.
App-101
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, specifically citing an 1884 Arkansas statute
outlawing “the sale of all dirks, Bowie knives, caneswords, 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
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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 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 t
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