Petition for Writ of Certiorari — Jamond M. Rush, Petitioner v. United States
Supreme Court briefJun 6, 2025
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No. ______
In The
Supreme Court of the United States
————♦————
JAMOND M. RUSH,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
————♦————
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit
————♦————
PETITION FOR WRIT OF CERTIORARI
————♦————
JOSEPH G.S. GREENLEE
NATIONAL RIFLE
ASSOCIATION – INSTITUTE
FOR LEGISLATIVE ACTION
11250 Waples Mill Rd.
Fairfax, VA 22030
(703) 267-1161
jgreenlee@nrahq.org
TALMAGE E. NEWTON IV
Counsel of Record
NEWTON BARTH, L.L.P.
555 Washington Ave.,
Suite 420
St. Louis, MO 63101
(314) 272-4490
tnewton@newtonbarth.com
Counsel for Petitioner
QUESTION PRESENTED
Whether the Second Amendment secures the right
to possess unregistered short-barreled rifles that are
in common use for lawful purposes.
ii
PARTIES TO THE PROCEEDING
The petitioner is Jamond M. Rush, who was the
defendant and appellant below. The respondent is the
United States, which was the plaintiff and appellee
below.
RELATED PROCEEDINGS
This case arises from the following proceedings:
•
United States v. Rush, No. 23-3256 (7th Cir.)
(judgment entered Mar. 10, 2025);
•
United States v. Rush, No. 4:22-cr-40008-JPG1 (S.D. Ill.) (judgment entered Jan. 25, 2023).
The following proceeding is also directly related to
this case under this Court’s Rule 14.1(b)(iii):
•
United States v. Rush, No. 1:25-CR-00051SRC-ACL (E.D. Mo.).
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDING ............................ ii
RELATED PROCEEDINGS........................................ ii
TABLE OF CONTENTS............................................. iii
TABLE OF AUTHORITIES ....................................... vi
PETITION FOR WRIT OF CERTIORARI ................. 1
OPINIONS BELOW .................................................... 2
JURISDICTION........................................................... 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................................... 2
STATEMENT OF THE CASE..................................... 3
A. Regulatory Background ........................................ 3
B. Procedural History ................................................ 4
REASONS FOR GRANTING THE PETITION .......... 6
I.
The Courts of Appeals are split on how to
adjudicate restrictions on specific categories
of arms. .................................................................. 8
A. The Courts of Appeals are split over whether
all firearms are “Arms.” .................................... 8
B. The Courts of Appeals are confused over
whether “common use” should be considered
in the plain text or historical inquiry. ............ 11
iv
C. Some Courts of Appeals are divided over
what constitutes “common use,” while
others have rejected this Court’s “common
use” test. .......................................................... 12
D. The Courts of Appeals are divided over
whether the Second Amendment excludes
arms that are most useful in military
service. ............................................................. 15
E. The Courts of Appeals are confused about
what makes an arm “dangerous and
unusual.” ......................................................... 16
II. Miller did not hold that short-barreled
shotguns were not protected arms and, in
any event, says nothing about whether shortbarreled rifles are in common use today. ........... 18
III. The NFA’s registration and taxation
requirements for short-barreled rifles violate
the Second Amendment. ..................................... 23
A. This Court has held that the Second
Amendment’s plain text covers all bearable
arms ................................................................. 23
B. No historical tradition supports registering
or taxing protected arms................................. 29
CONCLUSION .......................................................... 35
APPENDIX
Appendix A – Opinion of the United States Court
of Appeals for the Seventh Circuit, Filed March
10, 2025…………………………………………………..1a
v
Appendix B – Memorandum and Order of the
United States District Court for the Southern
District of Illinois, Filed January 25, 2023……...…24a
Appendix C – Judgment of the United States
District Court for the Southern District of
Illinois, Filed November 21, 2023...…………………32a
Appendix D – Statutory Provisions Involved……...48a
vi
TABLE OF AUTHORITIES
Page
CASES
Antonyuk v. James,
120 F.4th 941 (2d Cir. 2024) .................................. 11
Bevis v. City of Naperville,
85 F.4th 1175 (7th Cir. 2023) ......... 1, 6, 7, 9, 10, 11,
........................................................ 14, 15, 18, 25, 29
Bianchi v. Brown,
111 F.4th 438 (4th Cir. 2024) (en banc) ........... 9, 11,
.................................................................... 14, 17, 18
Caetano v. Massachusetts,
577 U.S. 411 (2016) ................................. 6, 7, 13, 15,
........................................................ 17, 22, 24, 27, 29
District of Columbia v. Heller,
554 U.S. 570 (2008) ..... 6, 7, 9, 13, 15, 16, 17, 19, 20,
.......................... 21, 22, 23, 24, 25, 26, 28, 32, 34, 35
Duncan v. Bonta,
133 F.4th 852 (9th Cir. 2025) (en banc) .... 10, 12, 13
Friedman v. City of Highland Park,
577 U.S. 1039 (2015) ................................................ 7
Friedman v. City of Highland Park,
784 F.3d 406 (7th Cir. 2015) ........ 1, 7, 12, 14, 22, 28
Hanson v. District of Columbia,
120 F.4th 223 (D.C. Cir. 2024) .................. 10, 11, 13,
.................................................................... 16, 17, 18
Harrel v. Raoul,
144 S. Ct. 2491 (2024) .............................. 7, 8, 24, 25
vii
Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco
& Explosives,
5 F.4th 407 (4th Cir. 2021) .................................... 34
Hollis v. Lynch,
827 F.3d 436 (5th Cir. 2016) .................................. 13
Maryland Shall Issue, Inc. v. Moore,
116 F.4th 211 (4th Cir. 2024) (en banc) .................. 8
Miller v. Bonta,
699 F. Supp. 3d 956 (S.D. Cal. 2023) ..................... 16
New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1 (2022) ..... 5, 6, 7, 8, 10, 11, 13, 20, 21, 23,
................................ 24, 25, 26, 29, 30, 32, 33, 34, 35
New York State Rifle & Pistol Ass’n, Inc. v. Cuomo,
804 F.3d 242 (2d Cir. 2015).................................... 13
Ocean State Tactical, LLC v. Rhode Island,
95 F.4th 38 (1st Cir. 2024) ............. 10, 13, 14, 15, 17
Rocky Mountain Gun Owners v. Polis,
121 F.4th 96 (10th Cir. 2024) ................................ 10
Smith & Wesson Brands, Inc. v. Estados Unidos
Mexicanos,
No. 23-1141, 2025 WL 1583281
(U.S. June 5, 2025) ................................................... 9
Snope v. Brown,
No. 24-203, 2025 WL 1550126
(U.S. June 2, 2025) ........................... 9, 22, 24, 25, 27
State v. Langford,
10 N.C. 381 (1824) .................................................. 34
United States v. Claybrooks,
90 F.4th 248 (4th Cir. 2024) .................................... 8
viii
United States v. Daniels,
77 F.4th 337 (5th Cir. 2023) .................................... 8
United States v. Diaz,
116 F.4th 458 (5th Cir. 2024) ................................ 13
United States v. Miller,
307 U.S. 174 (1939) ...... 5, 6, 7, 18, 19, 20, 21, 23, 28
United States v. Price,
111 F.4th 392 (4th Cir. 2024) (en banc) ...... 9, 12, 14
United States v. Rahimi,
602 U.S. 680 (2024) ............................ 6, 7, 29, 30, 33
United States v. Rahimi,
61 F.4th 443 (5th Cir. 2023) ............................ 11, 24
Worth v. Jacobson,
108 F.4th 677 (8th Cir. 2024) .................................. 9
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. II ...................... 1, 2, 5, 6, 7, 8, 10,
.................................................. 16, 19, 21, 23, 26, 32
STATUTES AND REGULATIONS
An Act to Exempt Certain Small Firearms from
the Provisions of the National Firearms Act, ch.
169, 49 Stat. 1192 (1936) ......................................... 4
National Firearms Act Amendments of 1968, Pub.
L. 90-618, sec. 201, § 5845(a)(3), 82 Stat. 1227
(1968) ........................................................................ 4
National Firearms Act of 1934, ch. 757, 48 Stat.
1236 .......................................................................... 3
ix
1856–1857 N.C. Sess. Laws 34.................................. 33
1865–1866 Ala. Laws 7 .............................................. 34
1871 Miss. Laws 20.................................................... 33
1874–1875 Va. Acts 282–83 ...................................... 33
1875–1876 Ala. Laws 46 ............................................ 33
1884–1885 Ga. Laws 30 ............................................. 33
18 U.S.C. § 3571(b) ........................................ 1, 2, 4, 33
26 U.S.C. § 5811(a) ...................................................... 4
26 U.S.C. § 5841................................................... 1, 2, 5
26 U.S.C. § 5845........................................................... 2
26 U.S.C. § 5845(a)(3) .............................................. 1, 4
26 U.S.C. § 5861(d) .................... 1, 2, 4, 5, 7, 23, 31, 33
26 U.S.C. § 5871......................................... 1, 2, 4, 5, 33
26 U.S.C. § 5872(a) ...................................................... 4
28 U.S.C. § 1254(1) ...................................................... 2
CAL. PENAL CODE § 16590(s)...................................... 27
CAL. PENAL CODE § 33215.......................................... 27
D.C. CODE § 7-2502.02(a)(3) ...................................... 27
HAW. REV. STAT. ANN. § 134-8(a) ............................... 27
N.J. STAT. ANN. § 2C:39-1(o) ..................................... 27
N.J. STAT. ANN. § 2C:39-3(b) ..................................... 27
N.Y. PENAL LAW § 265.00(3) ...................................... 27
R.I. GEN. LAWS § 11-47-2(15) ..................................... 27
R.I. GEN. LAWS § 11-47-8(b) ....................................... 27
x
OTHER AUTHORITIES
BACKGROUNDS OF SELECTIVE SERVICE: MILITARY
OBLIGATION: THE AMERICAN TRADITION, vol. 2,
pts. 6, 8 (Arthur Vollmer ed., 1947) ....................... 31
FBI Crim. Just. Info. Servs. Div., Expanded
Homicide Data Table 8: Murder Victims by
Weapon, 2015–2019, 2019 CRIME IN THE U.S. ....... 28
Frye, Brian L., The Peculiar Story of United States
v. Miller, 3 NYU J.L. & LIBERTY 48 (2008) ............ 18
Greenlee, Joseph G.S., The Tradition of ShortBarreled Rifle Use and Regulation in America,
25 WYO. L. REV. 111 (2025) .......................... 3, 30, 35
Halbrook, Stephen P., The Power to Tax, the
Second Amendment, and the Search for Which
“‘Gangster’ Weapons” to Tax, 25 WYO. L. REV.
149 (2025) ........................................................... 4, 30
National Firearms Act: Hearings on H.R. 9066
Before the H. Comm. on Ways & Means, 73d
Cong., 2d Sess. (1934) ........................................ 3, 30
THE STATUTES AT LARGE; BEING A COLLECTION
OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST
SESSION OF THE LEGISLATURE, IN THE YEAR
1619, vols. 1, 12 (William Waller Hening ed.,
1823) ................................................................. 31, 32
1
PETITION FOR WRIT OF CERTIORARI
Federal law requires the registration and taxation
of any rifle having a barrel shorter than 16 inches, 26
U.S.C. §§ 5841, 5845(a)(3), 5861(d)—a violation of
which is punishable by up to ten years’ imprisonment
and a $250,000 fine, id. § 5871; 18 U.S.C. § 3571(b).
This case is a Second Amendment challenge to that
requirement.
Lower courts are unsure how to adjudicate
challenges to restrictions on specific categories of arms
and have thus adopted a variety of different—often
conflicting—approaches, many of which are
inconsistent with this Court’s precedents. This
confusion is most pronounced in the Seventh Circuit,
which has issued opinions inconsistent not only with
this Court’s precedents and decisions in other Circuits
but also with its own precedents.
In this case, for instance, despite having
previously rejected this Court’s “common use” test as
a “circular,” not “very helpful,” “slippery concept” that
“would have anomalous consequences,” Bevis v. City of
Naperville, 85 F.4th 1175, 1190, 1198, 1199 (7th Cir.
2023); see also Friedman v. City of Highland Park, 784
F.3d 406, 409 (7th Cir. 2015), the Seventh Circuit
required proof that short-barreled rifles are
“commonly used” for lawful purposes—but then
dismissed evidence showing how many are possessed
by law-abiding citizens, App.14a.
The uncertainty throughout the lower courts—and
particularly in the Seventh Circuit—undermines this
Court’s
precedents,
diminishes
the
Second
Amendment, and deprives citizens of their ability to
2
vindicate their constitutional rights. Courts and
litigants both need more guidance on which arms the
Second Amendment protects.
————♦————
OPINIONS BELOW
The Seventh Circuit’s opinion is reported at 130
F.4th 633 and reproduced at App.1a–23a. The district
court’s order is not reported in the Federal
Supplement but is reproduced at App.24a–31a.
————♦————
JURISDICTION
The Seventh Circuit issued its judgment on March
10, 2025. App.1a–23a. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
————♦————
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Second Amendment provides: “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.
The relevant statutory provisions—18 U.S.C. §
3571(b) and 26 U.S.C. §§ 5841, 5845, 5861(d), 5871—
are reproduced at App.48a–61a.
————♦————
3
STATEMENT OF THE CASE
A. Regulatory Background
Short-barreled
rifles
were
regulated—and
categorized as a distinct class of arms—for the first
time in the twentieth century.
The National Firearms Act of 1934 (“NFA”)
included any “rifle having a barrel of less than
eighteen inches in length” among the “firearms” it
subjected to registration and taxation requirements.
National Firearms Act of 1934, ch. 757, § 1(a), 48 Stat.
1236, 1236. While the NFA was intended to address
Prohibition-era violence committed by organized crime
“gangsters,” see, e.g., National Firearms Act: Hearings
on H.R. 9066 Before the H. Comm. on Ways & Means,
73d Cong., 2d Sess. 117, 136 (1934), there is no
evidence that Congress believed short-barreled rifles
were favored by criminals or exceptionally dangerous
weapons, see generally id. Unlike other arms included
in the NFA, neither the Attorney General (whose office
“formulate[d]” the NFA, id. at 5) nor Congress
provided any explanation for including short-barreled
rifles. See, e.g., id. at 6, 111. Based on the legislative
history, the most plausible explanation is that since
handguns were included in the initial NFA bill, shortbarreled rifles were later added to prevent citizens
from circumventing the handgun restriction by
carrying shortened rifles instead, but the vestige
remained in the bill after handguns were removed. See
Joseph G.S. Greenlee, The Tradition of Short-Barreled
Rifle Use and Regulation in America, 25 WYO. L. REV.
111, 130–36 (2025); Stephen P. Halbrook, The Power
to Tax, the Second Amendment, and the Search for
Which “‘Gangster’ Weapons” to Tax, 25 WYO. L. REV.
4
149, 168–71 (2025). “The curious result was that the
NFA did not regulate large and small rifled arms, such
as long-barreled rifles and pistols, but it did restrict
medium sized rifled arms, like short-barreled rifles.”
Halbrook, supra, at 171.
The maximum barrel length was shortened to 16
inches for rifles with a caliber of .22 or smaller in 1936,
An Act to Exempt Certain Small Firearms from the
Provisions of the National Firearms Act, ch. 169, 49
Stat. 1192 (1936), and then for all rifles in 1968,
National Firearms Act Amendments of 1968, Pub. L.
90-618, sec. 201, § 5845(a)(3), 82 Stat. 1227, 1230
(1968) (codified at 26 U.S.C. § 5845(a)(3)).
It is unlawful under 26 U.S.C. § 5861(d) for any
person “to receive or possess a firearm”—including a
short-barreled rifle—“which is not registered to him in
the National Firearms Registration and Transfer
Record.” A transfer of any such firearm is taxed at
$200. Id. § 5811(a). A violation of Section 5681(d) is
punishable by up to 10 years’ imprisonment under
Section 5871, and although that statute originally set
the maximum fine at $10,000, an amendment in 18
U.S.C. § 3571(b) provides for a fine of up to $250,000.
Additionally, the unregistered firearm is forfeited. 26
U.S.C. § 5872(a).
B. Procedural History
On August 16, 2022, Rush was charged by
superseding indictment with one count of possessing
an unregistered firearm—specifically, an Anderson
Manufacturing AR-15 rifle with a 7.5-inch barrel—in
5
violation of 26 U.S.C. §§ 5841, 5861(d), and 5871.
App.2a.
Rush moved the district court to dismiss the
indictment on the grounds that Section 5861(d)
violates the Second Amendment. App.25a. Declining to
“reach Rush’s argument” that short-barreled rifles are
“commonly used for self-defense,” App.31 n.2, and with
no analysis of their dangerousness or unusualness, the
court concluded that they are “dangerous and unusual
firearms” and thus “outside the bounds of Second
Amendment protection,” App.30a. The court based this
holding on its errant reading of United States v. Miller,
307 U.S. 174 (1939), as holding that short-barreled
shotguns are “dangerous and unusual firearms.”
App.28a.
In light of the district court’s denial of his motion
to dismiss, Rush entered a conditional guilty plea,
preserving his right to appeal the denial of his motion
to dismiss. App.3a. He was sentenced to 30 months’
imprisonment and appealed to the Seventh Circuit.
App.3a.
The Seventh Circuit affirmed, “decid[ing] this case
on the simple fact that Miller controls.” App.23a. The
court did apply the test set forth in New York State
Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 24
(2022), however, “not in the context of first impression,
but rather with an eye for whether the test set forth in
Bruen is incompatible with Miller.” App.8a. The court
“decline[d]” to find that “short-barreled rifles are
‘arms’ protected by the Second Amendment’s text,”
App.13a, then found it “likely” that historical tradition
supports regulating them, App.14a, before concluding
that its application of Bruen’s test “answer[ed] the only
6
question at issue for this appeal,” App.22a, because it
led to the “conclusion that Miller survives Bruen,”
App.23a.
————♦————
REASONS FOR GRANTING THE PETITION
Jamond Rush has been convicted of a felony and
sentenced to 30 months’ imprisonment for possessing
a firearm that is in common use for lawful purposes.
The Seventh Circuit upheld that conviction while
continuing to flout this Court’s Second Amendment
precedents.
This Court has held and repeatedly reaffirmed
that the Second Amendment’s plain text covers all
bearable arms. District of Columbia v. Heller, 554 U.S.
570, 582 (2008); Caetano v. Massachusetts, 577 U.S.
411, 411 (2016); Bruen, 597 U.S. at 28; United States
v. Rahimi, 602 U.S. 680, 691 (2024).
The Seventh Circuit, however, has injected several
limitations into the plain text—limitations that have
resulted in the exclusion of semiautomatic rifles owned
in the tens of millions, Bevis, 85 F.4th at 1198,
ammunition magazines owned in the hundreds of
millions, id., and, here, rifles with shorter-thanaverage barrels, numbering over half a million,
App.21a. According to the Seventh Circuit’s holding
below, an ordinary rifle with a 16-inch barrel is an
arm, but the same rifle with a 15 7/8-inch barrel is not.
Such a distinction at the plain text stage is arbitrary,
illogical, and contrary to this Court’s precedents.
This Court has also held and repeatedly
reaffirmed that the Second Amendment protects arms
7
“‘in common use at the time.’” Heller, 554 U.S. at 627
(quoting Miller, 307 U.S. at 179); Bruen, 597 U.S. at
21, 47; see also Caetano, 577 U.S. at 420 (Alito, J.,
concurring); Rahimi, 602 U.S. at 735 (Kavanaugh, J.,
concurring). But the Seventh Circuit has expressly
“rejected” such “commonality reasoning,” App.21a,
deriding this Court’s “common use” test as a “circular,”
not “very helpful,” “slippery concept” that “would have
anomalous consequences,” Bevis, 85 F.4th at 1190,
1198, 1199; see also Friedman, 784 F.3d at 409.
The Seventh Circuit has manufactured its own
test, which seemingly cannot be satisfied. In this case,
the court paradoxically dismissed short-barreled rifles’
“popularity” and “prolif[eration]” as having “little
jurisprudential value,” App.21a n.12, 22a, while
simultaneously concluding that Rush failed to prove
that they are “commonly used” for lawful purposes,
App.14a. Although the court claims that its test is
“basically compatible with Bruen,” App.21a n.12
(quoting Bevis, 85 F.4th at 1089–90), Bruen’s author,
joined by Heller’s author, condemned it for “flout[ing]
… our Second Amendment precedents,” Friedman v.
City of Highland Park, 577 U.S. 1039, 1043 (2015)
(Thomas, J., dissenting from the denial of certiorari).
The Seventh Circuit further erred by relying on
historical analogues that share neither a “how” nor a
“why” with Section 5861(d), and by misreading Miller
as foreclosing any challenge to Section 5861(d).
“The Court must not permit ‘the Seventh Circuit
to relegate the Second Amendment to a second-class
right,’” Harrel v. Raoul, 144 S. Ct. 2491, 2493 (2024)
(Statement of Thomas, J.) (quoting Friedman, 577
U.S. at 1043 (Thomas, J., dissenting from the denial of
8
certiorari)) (brackets omitted), and, as demonstrated
by the Seventh Circuit’s continued recalcitrance,
“must provide more guidance on which weapons the
Second Amendment covers,” id. at 2492.
I.
The Courts of Appeals are split on how to
adjudicate
restrictions
on
specific
categories of arms.
“Since the Supreme Court issued Bruen, courts
across the country have struggled to answer the many
questions resulting from the Court’s new analytical
framework.” Maryland Shall Issue, Inc. v. Moore, 116
F.4th 211, 229 (4th Cir. 2024) (en banc); see also
United States v. Claybrooks, 90 F.4th 248, 256 (4th Cir.
2024) (“The contours of Bruen continue to solidify in
district and appellate courts across the nation, and yet
there is no consensus.”). In particular, “the debate as
to what constitutes a ‘bearable arm’ covered by the
Second Amendment has revitalized relevance.” United
States v. Daniels, 77 F.4th 337, 358 n.8 (5th Cir. 2023)
(Higginson, J., concurring), cert. granted, judgment
vacated, 144 S. Ct. 2707 (2024).
This case presents several issues that are dividing
lower courts and is a suitable vehicle for the Court to
clarify what “Arms” the Second Amendment protects.
A. The Courts of Appeals are split over
whether all firearms are “Arms.”
The Eighth Circuit has recognized that, according
to this Court, “the defined term ‘arms’ … applie[s] …
‘to all instruments that constitute bearable arms.’”
9
Worth v. Jacobson, 108 F.4th 677, 690 (8th Cir. 2024)
(quoting Heller, 554 U.S. at 582). But several other
Circuits have excluded various types of firearms from
the scope of the Second Amendment’s plain text.
In United States v. Price, the en banc Fourth
Circuit held that firearms with obliterated serial
numbers are not “Arms” covered by the Second
Amendment’s text, because the court could think of “no
compelling reason why a law-abiding citizen would
use” one. 111 F.4th 392, 406 (4th Cir. 2024) (en banc)
(quotation marks omitted).
In another en banc opinion, the Fourth Circuit
held that AR-15 rifles—“the most popular rifle in the
country,” Smith & Wesson Brands, Inc. v. Estados
Unidos Mexicanos, No. 23-1141, 2025 WL 1583281, at
*8 (U.S. June 5, 2025)—and similar firearms are not
“Arms” either, based on the court’s determination that
they are “most useful in military service,” Bianchi v.
Brown, 111 F.4th 438, 459 (4th Cir. 2024) (en banc)
(quotation marks omitted); but see Snope v. Brown, No.
24-203, 2025 WL 1550126, at *2 (U.S. June 2, 2025)
(Thomas, J., dissenting from the denial of certiorari)
(“AR–15s are clearly ‘Arms’ under the Second
Amendment’s plain text.”).
Likewise, the Seventh Circuit concluded that AR15 rifles and similar firearms are not “Arms” because
they are “indistinguishable from” the M16. Bevis, 85
F.4th at 1197; but see Snope, No. 24-203, 2025 WL
1550126, at *1 (Kavanaugh, J., statement respecting
the denial of certiorari) (“Semi-automatic … rifles are
distinct from automatic firearms such as the M–16
automatic rifle used by the military.”).
10
The Tenth Circuit held that the plain text of “the
Second Amendment does not extend to weapons rarely
used or possessed by law-abiding citizens, such as
short-barreled shotguns, or those adapted for unlawful
uses, for instance sawed-off shotguns.” Rocky
Mountain Gun Owners v. Polis, 121 F.4th 96, 116–17
(10th Cir. 2024) (citations omitted).
In this case, the court below “decline[d] to make a
step one finding that short-barreled rifles are ‘arms’
protected by the Second Amendment’s text.” App.13a.
To be sure, this confusion is not limited to
firearms. For instance, Circuit Courts are deeply
divided over whether standard-capacity ammunition
magazines are “Arms.” The D.C. Circuit held that they
“very likely are ‘Arms,’” Hanson v. District of
Columbia, 120 F.4th 223, 232 (D.C. Cir. 2024), the
First Circuit assumed that they are, Ocean State
Tactical, LLC v. Rhode Island, 95 F.4th 38, 43 (1st Cir.
2024), the Seventh Circuit determined that they are
“military-grade weaponry” and thus not arms, Bevis,
85 F.4th at 1195, and the en banc Ninth Circuit held
that they are “accessories, or accoutrements, rather
than arms,” Duncan v. Bonta, 133 F.4th 852, 867 (9th
Cir. 2025) (en banc).
Bruen repeatedly stated that the “only” way the
government can justify an arms-bearing regulation is
with historical tradition. 597 U.S. at 17, 24, 34. But by
excluding even some of the most popular firearms in
the country from the scope of the plain text, lower
courts are fundamentally altering this Court’s test for
Second Amendment cases.
11
B. The Courts of Appeals are confused over
whether “common use” should be
considered in the plain text or historical
inquiry.
“There is no consensus on whether the commonuse issue belongs at Bruen step one [plain text] or
Bruen step two [history].” Bevis, 85 F.4th at 1198; cf.
Bianchi, 111 F.4th at 477 (Diaz, J., concurring) (“The
Supreme Court has not yet defined the purview or
instructed on the proper placement of the dangerous
and unusual analysis. In that vacuum, courts have
struggled to interpret the scope of the constitutional
right to bear arms as informed by Bruen and other
Supreme Court precedent.”).
The Second and Tenth Circuits consider “common
use” in the plain text inquiry. Antonyuk v. James, 120
F.4th 941, 981 (2d Cir. 2024); Rocky Mountain Gun
Owners, 121 F.4th at 116–17. The Fifth Circuit
previously did, too. United States v. Rahimi, 61 F.4th
443, 454 (5th Cir. 2023), rev’d and remanded, 602 U.S.
680 (2024). And the D.C. Circuit “assume[d], without
deciding, this issue falls under Bruen step one.”
Hanson, 120 F.4th at 232 n.3.
By contrast, the Seventh Circuit in Bevis
“assume[d] (without deciding the question) that this is
a step two inquiry” belonging in the historical analysis.
85 F.4th at 1198.
Noting that “[t]his question has divided panels of
our court,” four dissenting judges on the Ninth Circuit
agreed that “the ‘common use’ inquiry best fits at
Bruen’s second step,” although the majority in the case
12
did not resolve the issue. Duncan, 133 F.4th at 900
(Bumatay, J., dissenting) (quotation marks omitted).
The en banc Fourth Circuit wrestled with this split
in Price. The nine-judge majority considered common
use in its plain text inquiry, while Judge Niemeyer in
concurrence, Judge Quattlebaum joined by Judge
Rushing also in concurrence, and Judge Richardson in
dissent all agreed that “common use falls under
Bruen’s historical tradition step.” Price, 111 F.4th at
415 (Quattlebaum, J., concurring) (describing the
judges’ various approaches).
In this case, the Seventh Circuit claimed to
“address commonality on step two [the historical step]”
of Bruen’s test, App.20a n.10, but actually applied it as
a limitation on the scope of the plain text, App.14a.
C. Some Courts of Appeals are divided over
what constitutes “common use,” while
others have rejected this Court’s
“common use” test.
“Still,” the en banc Fourth Circuit recently noted,
“the Supreme Court has not elucidated a precise test
for determining whether a regulated arm is in common
use for a lawful purpose.” Price, 111 F.4th at 403; see
also Friedman, 784 F.3d at 409 (“[W]hat line separates
‘common’ from ‘uncommon’ ownership is something
the Court did not say.”).
Some courts hold that the total number of a
particular weapon in circulation is what matters. The
Second Circuit found banned semiautomatic firearms
and magazines to be “‘in common use’ as that term was
13
used in Heller,” because “Americans own millions of”
each. New York State Rifle & Pistol Ass’n, Inc. v.
Cuomo, 804 F.3d 242, 255 (2d Cir. 2015), abrogated on
other grounds by Bruen, 597 U.S. 1.
Relatedly, the D.C. Circuit found banned
magazines likely to be in common use based on their
“sufficiently wide circulation” and evidence “about the
role of [the magazines] for self-defense.” Hanson, 120
F.4th at 233.
Like Justice Alito’s concurrence in Caetano, 577
U.S. at 420 (Alito, J., concurring), the Fifth Circuit
considered the number of the restricted arms lawfully
possessed and the number of states in which they
could be lawfully possessed, Hollis v. Lynch, 827 F.3d
436, 449 (5th Cir. 2016), abrogated on other grounds
by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024).
But other courts have rejected a “common use” test
that is based on how commonly the arms are
possessed. The en banc Ninth Circuit “reject[ed] that
simplistic approach,” Duncan, 133 F.4th at 882, since
it prevents a legislature from banning an arm “no
matter how rarely” it is actually employed “in armed
self-defense,” id. at 883. The court pays no attention to
commonality and instead considers only historical
regulations.
The First Circuit rejected the assertion that “the
constitutionality of arms regulations is to be
determined based on the ownership rate of the
weapons at issue.” Ocean State Tactical, LLC, 95 F.4th
at 51. The court focuses instead on how a challenged
regulation “might burden the right of armed self-
14
defense”—regardless of the arm’s commonality. Id. at
45.
The en banc Fourth Circuit derided the “common
use” test as an “ill-conceived popularity test” that
“leads to absurd consequences.” Bianchi, 111 F.4th at
460. Accordingly, the court substitutes its own
judgment to determine whether firearms are justified
in being commonly possessed. The court sometimes
“appl[ies] common sense” to “consider whether there
are any reasons a law-abiding citizen would want to
use a particular weapon for a lawful purpose.” Price,
111 F.4th at 405. “And when it comes to AR-15s, the
[court] refuses to consider their common usage at all,
choosing instead to replace Americans’ opinions of
their utility with its own.” Bianchi, 111 F.4th at 524
(Richardson, J., dissenting).
The Seventh Circuit below asserted that “a
firearm’s popularity in contemporary times has little
jurisprudential value, on its own, in a ‘commonality’
analysis.” App.21a n.12 (citing Friedman, 784 F.3d at
409). “[T]o base our assessment of the constitutionality
of these laws on numbers alone,” the court claimed,
“would have anomalous consequences.” App.21a
(quoting Bevis, 85 F.4th at 1198–99). Indeed, the
Seventh Circuit has long held that “relying on how
common a weapon is at the time of litigation would be
circular[.]” Friedman, 784 F.3d at 409.
15
D. The Courts of Appeals are divided over
whether the Second Amendment excludes
arms that are most useful in military
service.
The federal Circuit Courts are split over whether
arms lose Second Amendment protection because the
military may find them useful. But see Caetano, 577
U.S. at 419 (Alito, J., concurring) (“[T]he Second
Amendment … protects [common] weapons as a class,
regardless of any particular weapon’s suitability for
military use.”) (citing Heller, 554 U.S. at 627).
The Seventh Circuit excludes from the Second
Amendment’s plain text any arms “that may be
reserved for military use.” Bevis, 85 F.4th at 1194.
Similarly, the First Circuit and the en banc Fourth
Circuit have held that the Amendment does not cover
arms that are “most useful in military service.”
Bianchi, 111 F.4th at 453 (quoting Heller, 554 U.S. at
627); Ocean State Tactical, LLC, 95 F.4th at 48
(quoting Heller, 554 U.S. at 627). This “most useful in
military service” exclusion has resulted in the
validation of bans on the most widely possessed
semiautomatic rifles in the country as well as
magazines that are possessed in the hundreds of
millions. See, e.g., Bevis, 85 F.4th at 1198.
The D.C. Circuit, however, rejected the conclusion
reached by the First, Fourth, and Seventh Circuits.
These Circuits, the D.C. Circuit correctly explained,
misread Heller:
The Supreme Court in Heller did not hold,
however, that Second Amendment protection
does not extend to weapons that are “most
16
useful” in the military context. Rather, the
Court acknowledged that the Second
Amendment protects those weapons that are
“in common use at the time,” but not
“dangerous and unusual weapons.” That
means that some “weapons that are most
useful in military service” do not receive
Second Amendment protection.… In other
words, the Court was not saying “there is no
Second Amendment protection for weapons
that are ‘most useful in military service.’” It
was explaining that some “sophisticated” and
“highly unusual” military weapons may not
receive protection notwithstanding the
Second Amendment predicate regarding the
necessity of a “well-regulated Militia.”
Hanson, 120 F.4th at 233 (quoting Heller, 554 U.S. at
627 and U.S. CONST. amend. II).
E. The Courts of Appeals are confused about
what makes an arm “dangerous and
unusual.”
Circuit Courts are conflicted over whether
weapons must be “dangerous or unusual” or
“dangerous and unusual” to fall outside the Second
Amendment’s scope.
This Court has demonstrated that an arm loses
Second Amendment protection only if it is dangerous
and unusual. First, the Court “carefully uses the
phrase ‘dangerous and unusual arms.’” Miller v.
Bonta, 699 F. Supp. 3d 956, 969 (S.D. Cal. 2023),
appeal held in abeyance, No. 23-2979, 2024 WL
17
1929016 (9th Cir. Jan. 26, 2024). Second, in Caetano,
after determining that the Massachusetts Supreme
Judicial Court’s analysis of whether stun guns were
“unusual” was flawed, the Court declined to consider
whether stun guns qualified as “dangerous.” 577 U.S.
at 412. If dangerousness alone sufficed to justify a
prohibition, the Court would have proceeded to
consider the dangerousness of stun guns. Justice Alito
made this point explicitly in the concurrence:
As the per curiam opinion recognizes, this is a
conjunctive test: A weapon may not be banned
unless it is both dangerous and unusual.
Because the Court rejects the lower court’s
conclusion that stun guns are “unusual,” it
does not need to consider the lower court’s
conclusion that they are also “dangerous.”
Id. at 417 (Alito, J., concurring) (citing Heller, 554 U.S.
at 636).
Nevertheless, some courts read “dangerous and
unusual” as “dangerous or unusual.”
The en banc Fourth Circuit held that “excessively
dangerous arms … fall outside the reach of the right,”
regardless of how usual they are. Bianchi, 111 F.4th
at 450. Similarly, the D.C. Circuit determined that
“dangerous
and
unusual”
weapons
include
“uncommonly dangerous” arms, no matter how
common they are. Hanson, 120 F.4th at 238 n.7.
The First Circuit, on the other hand, adopted an
expansive reading of “unusual,” determining that “the
degree of harm [an arm] causes,” as opposed to its
“prevalence in society,” may make an arm unusual.
Ocean State Tactical, LLC, 95 F.4th at 50–51.
18
Several dissenting judges, however, have argued
for the conjunctive test that this Court recognized in
Caetano. See Bianchi, 111 F.4th at 506 n.31
(Richardson, J., dissenting) (“[H]istory and tradition
require a weapon to be both dangerous and unusual—
not merely dangerous or unusual.”); Hanson, 120
F.4th at 263 (Walker, J., dissenting) (“A weapon may
not be banned unless it is both dangerous and
unusual.”) (quotation marks omitted); Bevis, 85 F.4th
at 1215 (Brennan, J., dissenting) (“Recall the test is
‘dangerous and unusual’”).
In sum, “Bruen has proven to be a labyrinth for
lower courts” and they “are asking for help.” Bianchi,
111 F.4th at 473–74 (Diaz, J., concurring). This case
presents an opportunity to provide clarity and resolve
several splits among the federal Circuit Courts.
II.
Miller did not hold that short-barreled
shotguns were not protected arms and, in
any event, says nothing about whether
short-barreled rifles are in common use
today.
The Seventh Circuit below held that Miller, which
upheld the NFA’s restrictions on short-barreled
shotguns, “is dispositive and brings Rush’s challenge
to a halt.” App.7a–8a. But the court’s reliance on
Miller was misplaced for several reasons.1
1
Miller was a seemingly collusive case in which “the Court
heard from no one but the Government.” Heller, 554 U.S. at 623;
see also Brian L. Frye, The Peculiar Story of United States v.
Miller, 3 NYU J.L. & LIBERTY 48, 50, 65 (2008) (“Miller was a
19
1. Miller did not hold that short-barreled shotguns
were not protected arms. Rather, because the
defendants “made no appearance in the case, neither
filing a brief nor appearing at oral argument,” Heller,
554 U.S. at 623, the Miller Court was not presented
“any evidence tending to show” that short-barreled
shotguns were protected and declined to take judicial
notice that they were, Miller, 307 U.S. at 178.
Consequently, the Miller Court explained, “we cannot
say that the Second Amendment guarantees the right
to keep and bear such an instrument.” Id. Declining to
hold, “[i]n the absence of any evidence,” id., that shortbarreled shotguns were protected is different from
conclusively “determin[ing] that the Second
Amendment does not guarantee a right to possess”
them, which is how the Seventh Circuit interpreted
Miller, App.5a.
2. Because the Miller Court declined to conclude
that short-barreled shotguns were protected arms,
Miller stands only for the proposition that the NFA’s
restrictions are valid as applied to arms that are not
protected by the Second Amendment. But this says
nothing about arms that are protected—such as shortbarreled rifles today. Moreover, Miller’s holding and
focus on whether short-barreled shotguns were
protected suggests that the NFA’s restrictions would
be unconstitutional as applied to protected arms. See
Miller, 307 U.S. at 178 (focusing analysis on whether
“the Second Amendment guarantees the right to keep
and bear such an instrument”). If the NFA’s
Second Amendment test case arranged by the government and
designed to support the constitutionality of federal gun control.”).
20
restrictions were constitutional regardless of whether
short-barreled shotguns were protected, it would have
been senseless for the Court to spend so much of its
opinion determining whether they were. Cf. Heller,
554 U.S. at 622 (“Had the Court believed that the
Second Amendment protects only those serving in the
militia, it would have been odd to examine the
character of the weapon rather than simply note that
the two crooks were not militiamen.”).
3. Even if Miller is read as holding that shortbarreled shotguns were unprotected arms in 1939, it
cannot foreclose a challenge to restrictions on such
arms nearly 90 years later because, as Heller
explained, “Miller said … that the sorts of weapons
protected were those ‘in common use at the time.’”
Heller, 554 U.S. at 627 (quoting Miller, 307 U.S. at
179) (emphasis added). And Bruen makes clear that
over time, unprotected arms can become common—
and thus protected—arms:
Whatever the likelihood that handguns were
considered “dangerous and unusual” during
the colonial period, they are indisputably in
“common use” for self-defense today.… Thus,
even if these colonial laws prohibited the
carrying of handguns because they were
considered “dangerous and unusual weapons”
in the 1690s, they provide no justification for
laws restricting the public carry of weapons
that are unquestionably in common use today.
597 U.S. at 47.
The 1939 Miller case says nothing about whether
short-barreled shotguns are in common use today. It
21
certainly says nothing about whether short-barreled
rifles are in common use today.
4. Even though Miller did not involve shortbarreled rifles, the court below determined that Miller
precludes Rush’s challenge because short-barreled
shotguns and short-barreled rifles both “are long guns
with shortened barrels, which are dangerous because
they are more powerful than traditional handguns yet
are easier to conceal,” and because “both involve a
characteristic that makes the firearm especially
attractive to criminals while adding little—if any—
functionality to the firearm for lawful use.” App.6a.
But none of these reasons provides sufficient
justification for holding that Miller precludes a
challenge to the NFA’s restrictions on short-barreled
rifles.
First, as for concealability, it is false that shortbarreled rifles are easier to conceal than handguns.
But in any event, Heller held that the Second
Amendment protects handgun possession and Bruen
held that the Amendment protects handgun carry,
regardless of their concealability. So concealability
does not remove an arm from Second Amendment
protection.
Second, dangerousness alone does not remove an
arm from Second Amendment protection, either. “If
Heller tells us anything, it is that firearms cannot be
categorically prohibited just because they are
dangerous.” Caetano, 577 U.S. at 418 (Alito, J.,
concurring). Rather, this Court has made clear that a
weapon loses Second Amendment protection only if it
is both dangerous and unusual, see Part I.E., supra,
and short-barreled rifles are not “unusual,” see Part
22
III.A, infra. In any event, short-barreled rifles are not
“dangerous,” either, because they do not differ in
function or lethality from other common rifles or
handguns. Short-barreled rifles offer greater stability
and accuracy than handguns, making them safer to
operate. And they offer greater maneuverability and
portability than standard rifles, which are desirable
traits for lawful defense. See Heller, 554 U.S. at 629.
Third, it is not for the government to decide
whether a “characteristic” of a firearm adds sufficient
“functionality to the firearm for lawful use.” App.6a.
“Our Constitution allows the American people—not
the government—to decide which weapons are useful
for self-defense.” Snope, No. 24-203, 2025 WL 1550126,
at *4 (Thomas, J., dissenting from the denial of
certiorari). “To limit self-defense to only those methods
acceptable to the government is to effect an enormous
transfer of authority from the citizens of this country
to the government—a result directly contrary to our
constitution and to our political tradition.” Friedman,
784 F.3d at 413 (Manion, J., dissenting); see also
Caetano, 577 U.S. at 422 (Alito, J., concurring)
(Disapproving “the safety of all Americans [being] left
to the mercy of state authorities who may be more
concerned about disarming the people than about
keeping them safe.”). Rather, Heller affirmed that the
People have the right to choose their preferred arms:
“Whatever the reason, handguns are the most popular
weapon chosen by Americans for self-defense in the
home, and a complete prohibition of their use is
invalid.” 554 U.S. at 629 (emphasis added).
Bruen repeatedly stated that the “only” way the
government can justify a modern regulation is with
23
historical tradition. 597 U.S. at 17, 24, 34. But leaning
on Miller, the court applied only a watered-down
version of Bruen’s test, merely finding it “likely” that
historical tradition supports Section 5861(d). This
Court’s precedents require more.
III.
The NFA’s registration and taxation
requirements for short-barreled rifles
violate the Second Amendment.
To justify a regulation of conduct that “the Second
Amendment’s plain text covers,” “the government
must demonstrate that the regulation is consistent
with this Nation’s historical tradition of firearm
regulation.” Bruen, 597 U.S. at 17. Because the plain
text covers the possession of short-barreled rifles and
no historical tradition supports registration and
taxation requirements for arms in common use—such
as short-barreled rifles—Section 5861(d) violates the
Second Amendment.2
A. This Court has held that the Second
Amendment’s plain text covers all
bearable arms.
1. This Court conducted the plain text analysis of
the Second Amendment in Heller, 554 U.S. at 576–600.
Interpreting “Arms,” Heller held that “the Second
Amendment extends, prima facie, to all instruments
that constitute bearable arms[.]” Id. at 582 (emphasis
2 “The parties do not dispute that Rush—an ordinary, lawabiding, adult citizen—is part of the ‘people’ under the Second
Amendment.” App.9a (citing Bruen, 597 at 31–32).
24
added). The Court has thrice reaffirmed Heller’s
holding. Caetano, 577 U.S. at 411 (quoting Heller, 554
U.S. at 582, and describing Heller’s definition of
“Arms” as a holding); Bruen, 597 U.S. at 28 (quoting
Heller, 554 U.S. at 582); Rahimi, 602 U.S. at 691
(quoting Heller, 554 U.S. at 582).
Heller’s “general definition” of “Arms,” Bruen, 597
U.S. at 28, “includes any ‘weapon of offence’ or ‘thing
that a man wears for his defence, or takes into his
hands,’ that is ‘carried … for the purpose of offensive
or defensive action,’” Caetano, 577 U.S. at 416 n.3
(Alito, J., concurring) (quoting Heller, 554 U.S. at 581,
584) (brackets and citations omitted). It also “covers
modern instruments that facilitate armed selfdefense.” Bruen, 597 U.S. at 28; cf. Caetano, 577 U.S.
at 416 n.3 (Alito, J., concurring).
Thus, “[u]nder the plain text of the Second
Amendment, [Rush’s] only burden is to show that
[short-barreled rifles] are bearable ‘Arms’—i.e.,
‘weapons of offence.’ By any measure, they are.” Snope,
No. 24-203, 2025 WL 1550126, at *4 (Thomas, J.,
dissenting from the denial of certiorari) (cleaned up).
2. The Seventh Circuit below “decline[d] to make a
step one finding that short-barreled rifles are ‘arms’
protected by the Second Amendment’s text.” App.13a.
Despite this Court’s precedents, the Seventh Circuit
rejected Rush’s argument “that the text of the Second
Amendment extends to all ‘bearable’ arms” because it
“is contrary to our own precedent.” App.10a (emphasis
added).
“By contorting” this Court’s “precedents,” Harrel,
144 S. Ct. at 2492 (Statement of Thomas, J.), the
25
Seventh Circuit limits the plain text’s coverage only to
“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,” Bevis, 85 F.4th at 1194; see also App.12a
n.4.
Applying this plain text limitation in Bevis, the
Seventh Circuit “concluded that the most widely
owned semiautomatic rifles are not ‘Arms’ protected by
the Second Amendment.” Harrel, 144 S. Ct. at 2492–
93 (Statement of Thomas, J.). Here, the court’s failure
to recognize that short-barreled rifles are covered by
the plain text is equally “nonsensical.” Id. at 2492.
The Seventh Circuit rejected the proposition that
short-barreled rifles are “Arms” within the meaning of
the plain text because the court was not convinced that
they “are commonly used by ordinary, law-abiding
citizens for a lawful purpose.” App.14a. But this was
wrong for two reasons.
First, Heller and Bruen demonstrate that the
consideration of whether a firearm is “in common use,”
and the corresponding consideration of whether a
firearm is “dangerous and unusual,” must be
considered in the historical analysis—where the
government bears the burden—rather than in the
plain text analysis. See Snope, No. 24-203, 2025 WL
1550126, at *1 (Kavanaugh, J., statement respecting
the denial of certiorari) (referring to the “historically
based ‘common use’ test”) (emphasis added).
Heller referred to “the historical tradition” of
regulating “dangerous and unusual weapons.” 554
26
U.S. at 627 (emphasis added). And Bruen explained
that the Heller Court was “[d]rawing from this
historical tradition” of restricting “dangerous and
unusual weapons” in holding that the Second
Amendment protects arms “‘in common use at the
time,’ as opposed to those that ‘are highly unusual in
society at large.’” 597 U.S. at 47 (quoting Heller, 554
U.S. at 627) (emphasis added).
Moreover, the Heller Court considered that
“historical tradition” in its own historical analysis.
After completing the plain text analysis of the Second
Amendment, 554 U.S. at 576–600, the Court began
focusing on historical tradition, including “how the
Second
Amendment
was
interpreted
from
immediately after its ratification through the end of
the 19th century,” id. at 605. Only after reviewing
“Postratification Commentary,” id. at 605–10, “Pre–
Civil War Case Law,” id. at 610–14, “Post–Civil War
Legislation,” id. at 614–16, “Post–Civil War
Commentators,” id. at 616–19, and Supreme Court
precedents, id. at 619–26, did this Court identify the
“historical tradition” of regulating “dangerous and
unusual weapons” and protecting arms “in common
use at the time,” id. at 627. What is more, the Court
identified the tradition of regulating “dangerous and
unusual weapons” in the same paragraph as other
“longstanding” regulations, id. at 626–27, while
promising to “expound upon the historical
justifications for” those regulations at another time, id.
at 635 (emphasis added).
The Seventh Circuit below claimed to “address
commonality on step two [the historical inquiry]” of
Bruen’s test, but in fact, applied it as a limitation on
27
the scope of the plain text. App.13a–14a, 20a n.10. Had
the Seventh Circuit followed this Court’s precedents
and considered “common use” in the historical
analysis, the government would have borne the
burden of proving that short-barreled rifles are not
common—a burden it could not satisfy.
Second, short-barreled rifles are commonly used
by ordinary, law-abiding citizens for lawful purposes.
As the Seventh Circuit acknowledged, “[a] Bureau of
Alcohol, Tobacco, Firearms and Explosives statistic
cited by Rush states that there were 532,725
registered short-barreled rifles in the United States in
2021”—despite the onerous regulations imposed by the
NFA. App.21a. In Caetano, Justice Alito determined
that “stun guns are widely owned and accepted as a
legitimate means of self-defense across the country”
because “approximately 200,000 civilians own[] stun
guns … who it appears may lawfully possess them in
45 States.” 577 U.S. at 420 (Alito, J., concurring)
(cleaned up). Applying this standard to short-barreled
rifles, they are certainly common. Americans owned
532,725 short-barreled rifles as of 2021, and like the
stun guns in Caetano, it appears that civilians may
lawfully possess them in 45 states.3 Cf. Snope, No. 24203, 2025 WL 1550126, at *1 (Kavanaugh, J.,
statement respecting the denial of certiorari) (“Given
3
As far as Petitioner can determine, only California, Rhode
Island, New York, New Jersey, Hawaii, and the District of
Columbia prohibit the possession of short-barreled rifles. CAL.
PENAL CODE §§ 16590(s), 33215; R.I. GEN. LAWS §§ 11-47-2(15),
-8(b); N.Y. PENAL LAW § 265.00(3); N.J. STAT. ANN. §§ 2C:39-1(o),
-3(b); HAW. REV. STAT. ANN. § 134-8(a); D.C. CODE § 72502.02(a)(3).
28
that millions of Americans own AR–15s and that a
significant majority of the States allow possession of
those rifles, petitioners have a strong argument that
AR–15s are in ‘common use’ by law-abiding citizens
and therefore are protected by the Second Amendment
under Heller.”).
Moreover, since the NFA requires short-barreled
rifle owners to undergo extensive background checks,
the half-million registered rifles are unquestionably
“typically possessed by law-abiding citizens for lawful
purposes.” Heller, 554 U.S. at 625; cf. Friedman, 784
F.3d at 416 (Manion, J., dissenting) (“The fact that a
statistically significant number of Americans use [the
regulated arms] demonstrates ipso facto that they are
used for lawful purposes.”). In fact, rifles of all kinds
are rarely used in crime and used to commit only about
3 percent of homicides committed with firearms per
year. See, e.g., FBI Crim. Just. Info. Servs. Div.,
Expanded Homicide Data Table 8: Murder Victims by
Weapon, 2015–2019, 2019 CRIME IN THE U.S.4 Even if
every homicide committed with a rifle were committed
with a short-barreled rifle, over 99.9 percent of shortbarreled rifles would still not be used for that purpose.
See id.
The Seventh Circuit did not engage with the fact
that at least 532,725 short-barreled rifles are lawfully
possessed in America. Despite this Court repeatedly
stating that the Second Amendment protects “arms in
common use at the time,” Heller, 554 U.S. at 627
(quoting Miller, 307 U.S. at 179); Bruen, 597 U.S. at
4 https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.2019/tables/expanded-homicide-data-table-8.xls.
29
21, 47; see also Caetano, 577 U.S. at 420 (Alito, J.,
concurring); Rahimi, 602 U.S. at 735 (Kavanaugh, J.,
concurring), the Seventh Circuit asserted “that a
firearm’s popularity in contemporary times has little
jurisprudential value,” App.21a n.12. What might
demonstrate commonality if not how commonly the
firearm is lawfully owned, the court did not reveal. It
noted only that the Bevis plaintiffs asserted “that
there were at least ‘20 million AR-15s and similar
rifles’ owned by ‘some 16 million citizens,’” App.21a
n.11 (quoting Bevis, 85 F.4th at 1198), and even that
“figure could not save the day in Bevis,” App.21a n.11.
But the Bevis precedent only highlights the urgency
for this Court’s review: the Seventh Circuit is
compounding its errors and allowing the possession of
an increasing number of constitutionally protected
arms to be punished as a felony.
B. No
historical
tradition
supports
registering or taxing protected arms.
Although the Seventh Circuit did not find “that
short-barreled rifles are ‘arms’ protected by the Second
Amendment’s text,” App.13a, the court considered
historical tradition “in the interest of completeness,”
App.14a.
To carry its burden in the historical analysis, the
government must prove that “the new law is
‘relevantly similar’ to laws that our tradition is
understood to permit, ‘apply[ing] faithfully the balance
struck by the founding generation to modern
circumstances.’” Rahimi, 602 U.S. at 692 (quoting
Bruen, 597 U.S. at 29). “Why and how the regulation
30
burdens the right are central to this inquiry.” Id.
(citing Bruen, 597 U.S. at 29).
The NFA burdens the right to keep and bear arms
by imposing taxation and registration requirements on
specified arms, and by prohibiting interstate travel
with such arms without advance permission. It was
enacted to prevent ownership of the regulated arms.
See, e.g., National Firearms Act: Hearings, supra, at 50
(Representative Samuel Hill referring to the
regulation as a “prohibitive tax”).
As for short-barreled rifles, no one argued when
the NFA was enacted that short-barreled rifles were
exceptionally dangerous weapons or preferred by
criminals. Rather, since Congress initially intended to
include handguns in the NFA, short-barreled rifles
were apparently included to prevent citizens from
circumventing the handgun restriction by carrying
shortened rifles instead. See Greenlee, supra, at 130–
36; Halbrook, supra, at 168–71.
The Seventh Circuit below concluded that the
NFA’s restrictions on short-barreled rifles are “likely”
consistent with “the government’s historical analogues
for barrel-length regulations, registration and
taxation requirements, as well as regulations of
dangerous and unusual weapons.” App.22a. But none
of those historical regulations are relevantly similar to
the NFA’s restrictions.
1. The “historical regulations on barrel length”
that the Seventh Circuit cited were merely militia acts
specifying the barrel lengths of the militia arms that
certain militiamen were required to provide for militia
service. See App.15a. The first was a 1649
31
Massachusetts militia act requiring musketeers to
bear muskets from 45 to 51 inches in length. The
second was a 1785 Virginia militia act requiring noncommissioned officers and privates to bear muskets
with 44-inch barrels. Neither the “why” nor the “how”
of these laws are consistent with Section 5861(d).
Starting with the “why,” the Massachusetts law
was passed for “the well Ordering of the Militia,” 2
BACKGROUNDS OF SELECTIVE SERVICE: MILITARY
OBLIGATION: THE AMERICAN TRADITION, pt. 6, at 54
(Arthur Vollmer ed., 1947), and the Viginia law was
passed for “regulating and disciplining the militia,” 12
THE STATUTES AT LARGE; BEING A COLLECTION OF ALL
THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE
LEGISLATURE, IN THE YEAR 1619, at 9 (William Waller
Hening ed., 1823). As for the “how,” neither law
restricted anyone’s ability to possess any firearm.
2. The “registration and taxation requirements”
the Seventh Circuit cited were “certain colonial
‘muster’ laws,” “a 1631 Virginia law [that] required
recording ‘arms and munitions,’” and “an 1856 North
Carolina law.” App.16a.
The “colonial muster laws,” which allowed militia
officers to ensure that militiamen kept the mandated
militia arms, do not share either a “why” or “how” with
the NFA’s registration requirement. The militia laws
applied only to militiamen and only to militia arms to
help ensure that the militia was sufficiently armed to
defend the community. See, e.g., BACKGROUNDS OF
SELECTIVE SERVICE, pt. 8, at 67, 70 (1781 New Jersey
militia law securing “the Defence and Security of the
State” by requiring “once in every four Months … a
Sergeant to call at the Place of Abode of each Person
32
enrolled” in the militia to ensure that “every Person
enrolled” is “constantly keep[ing] himself furnished
with” the required arms).
Virginia’s 1631 census law applied more broadly.
It required the “comanders of all the severall
plantations” to take a census of the inhabitants and
their goods, including “armes and munition” as well as
a variety of other items including “corne, cattle, hoggs,
goates, barques, boates, gardens, and orchards.” 1 THE
STATUTES AT LARGE, supra, at 174–75. This law
intended to ensure that Virginians could fulfill their
legal duties under Virginia law for mandatory
firearms possession and carrying—for example,
Virginians were required to carry firearms while
working in their fields or attending church. See id. at
174. This “why” fulfills a purpose opposite that of the
NFA—to ensure possession and carriage of firearms
rather than discourage it. Moreover, the census law
was enacted 160 years prior to the Second
Amendment’s ratification, and this Court has
emphasized that historical laws that became obsolete
long before the Founding “shed[] little light” on the
Second Amendment. Bruen, 597 U.S. at 49. This Court
has also expressed “doubt that three colonial
regulations could suffice to show a tradition of …
regulation,” id. at 46, let alone one. See also Heller, 554
U.S. at 632 (“we would not stake our interpretation of
the Second Amendment upon a single law, in effect in
a single city, that contradicts the overwhelming
weight of other evidence”).
The 1856 North Carolina law included in personal
property taxes “every pistol, except such as are used
exclusively for mustering,” as well as dirks and bowie-
33
knives, if they had been “used, worn or carried” during
that year. 1856–1857 N.C. Sess. Laws 34. A few other
southeastern states—Mississippi, Alabama, Georgia,
and Virginia—expressly included firearms among
taxable personal property in the late nineteenth
century. See, e.g., 1871 Miss. Laws 20; 1875–1876 Ala.
Laws 46; 1874–1875 Va. Acts 282–83; 1884–1885 Ga.
Laws 30. These laws fail as analogues for several
reasons.
First, laws from only a few states cannot establish
a national tradition: as noted above, Bruen doubted
that “three colonial regulations could suffice to show a
tradition,” 597 U.S. at 46 (emphasis omitted), and also
declined to “give disproportionate weight to a single
state statute and a pair of state-court decisions,” id. at
65.
Second, the laws were enacted too long after the
Founding to “provide insight into the meaning of the
Second Amendment when it contradicts earlier
evidence.” Id. at 66 n.28; see also id. at 55 n.22
(dismissing an 1860 New Mexico Territory law in part
because it was enacted “nearly 70 years after the
ratification of the Bill of Rights”).
Third, the penalty for violating Section 5861(d)—
“another relevant aspect of the burden”—does not “fit
within the regulatory tradition.” Rahimi, 602 U.S. at
699. A violation of Section 5861(d) is a felony,
punishable by up to 10 years’ imprisonment and a
$250,000 fine. 26 U.S.C. § 5871; 18 U.S.C. § 3571(b).
Punishments for violating the property tax laws were
far less severe. For example, a relatively harsh (and
thus short-lived) punishment for violating one
property tax law allowed the tax assessor to seize the
34
firearm, but the owner could recover the firearm by
paying the tax plus a fifty percent penalty. 1865–1866
Ala. Laws 7.
Fourth, it is problematic to rely on laws enacted
exclusively by southern states in the late nineteenth
century, “at a time when state laws were used to
disarm disfavored groups,” Hirschfeld v. Bureau of
Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407,
440 (4th Cir.), vacated as moot, 14 F.4th 322 (4th Cir.
2021)—especially laws that had the effect of disarming
poor people, see Bruen, 597 U.S. at 60–61 (“After the
Civil War, of course, the exercise of this fundamental
right [to keep and bear arms] by freed slaves was
systematically thwarted.).
3. Lastly, the Seventh Circuit was persuaded by
the fact that “[a]t common law … a person was
prohibited from ‘arming himself with dangerous and
unusual weapons, in such a manner as would
naturally cause a terror to the people.’” App.19a
(quoting State v. Langford, 10 N.C. 381, 383 (1824))
(brackets omitted). But short-barreled rifles are in
common use, see Part III.A, supra, and historical
restrictions on dangerous and unusual weapons
cannot justify modern restrictions on common arms.
That is why “the historical tradition of prohibiting the
carrying of ‘dangerous and unusual weapons,’” Heller,
554 U.S. at 627, could not justify the handgun
possession ban struck down in Heller or the handgun
carry restriction struck down in Bruen. If historical
restrictions on “dangerous and unusual weapons” were
valid analogues for modern restrictions on protected
arms, all firearms could be prohibited, and the
35
restrictions in Heller and Bruen would have been
upheld.
Finally, it warrants emphasis that rifles with
short barrels and pistols with shoulder stocks were
considered ordinary arms throughout American
history and never singled out for regulation until the
twentieth century. App.20a–21a; see also Greenlee,
supra, at 113–30. The fact that they were traditionally
unregulated “is relevant evidence that the challenged
regulation is inconsistent with the Second
Amendment.” Bruen, 597 U.S. at 26.
————♦————
CONCLUSION
For the foregoing reasons, the Court should grant
the petition for certiorari.
Respectfully submitted,
JOSEPH G.S. GREENLEE
NATIONAL RIFLE
ASSOCIATION – INSTITUTE
FOR LEGISLATIVE ACTION
11250 Waples Mill Rd.
Fairfax, VA 22030
(703) 267-1161
jgreenlee@nrahq.org
TALMAGE E. NEWTON IV
Counsel of Record
NEWTON BARTH, L.L.P.
555 Washington Ave.,
Suite 420
St. Louis, MO 63101
(314) 272-4490
tnewton@newtonbarth.com
APPENDIX
i
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT, FILED
MARCH 10, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
A PPENDI X B — MEMOR A NDUM A ND
OR DER OF T H E U N I T ED S TAT E S
DISTRICT COURT FOR THE SOUTHERN
DI S T R IC T OF I L LI NOI S , F I L ED
JANUARY 25, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . 24a
A PPENDI X C — J U DGMENT OF THE
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
ILLINOIS, FILED NOVEMBER 21, 2023 . . . . . . 32a
APPENDIX D — STATUTORY PROVISIONS
INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48a
1a
A
APPENDIX Appendix
A — OPINION
OF THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT,
FILED MARCH 10, 2025
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 23-3256
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMOND M. RUSH,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 4:22-cr-40008 — J. Phil Gilbert, Judge.
Argued May 28, 2024
Decided March 10, 2025
Before Jackson-A kiwumi, Lee, and Kolar, Circuit Judges.
Kolar, Circuit Judge. Section 5861(d) of the National
Firearms Act (NFA) criminalizes receipt or possession
of certain unregistered firearms. 26 U.S.C. §5861(d).
Defendant-Appellant Jamond Rush challenges his
indictment and conviction under §5861(d), alleging that the
2a
Appendix A
statute unconstitutionally burdens core conduct protected
by the Second Amendment. Because binding precedent
forecloses Rush’s argument, we affirm.
I. Background
In August 2022, Rush was charged by superseding
indictment with one count of possessing an unregistered
firearm in violation of 26 U.S.C. §§5841, 5861(d), and
5871. The unregistered firearm Rush possessed was an
Anderson Manufacturing AR-15 r ifle with a 7.5-inch
barrel—a short-barreled rifle regulated by the NFA, 26
U.S.C. §5801, et seq.1
Rush moved to dismiss the indictment, arguing that
§5861(d) is unconstitutional under the Supreme Court’s
decision in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,
597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). The
government opposed the motion, arguing that the NFA
remains constitutional under Bruen, and that earlier
Supreme Court precedent, United States v. Miller, 307
U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206, 1939-1 C.B. 373
(1939), already upheld an analogous NFA regulation
against a Second Amendment challenge. The district court
agreed with the government, concluding that “Bruen
had no impact on the constitutionality of regulating
the receipt or possession [of] an unregistered shortbarreled rifle.” The district court held that Rush’s alleged
conduct—possessing the unregistered, short-barreled
1. 26 U.S.C §5845(a) defines “firearm” to include “a rifle having
a barrel or barrels of less than 16 inches in length ....”
3a
Appendix A
rifle—was not covered “by the plain text or the historical
understanding of the Second Amendment.”
Rush then entered a conditional guilty plea, reserving
the right to challenge the denial of his motion to dismiss. He
was convicted and sentenced to 30 months’ imprisonment.
Rush now appeals the district court’s denial of his motion
to dismiss.
II. Discussion
We review questions concerning the constitutionality
of a federal statute de novo. United States v. Cote, 504
F.3d 682, 685 (7th Cir. 2007). The single issue on appeal
is whether §5861(d) is facially constitutional— if it is not,
Rush’s indictment must be dismissed. A facial challenge
like the one Rush lodges “is the most difficult challenge
to mount successfully because it requires a [party] to
establish that no set of circumstances exists under which
the [statute] would be valid.” United States v. Rahimi, 602
U.S. 680, 693, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024)
(citing United States v. Salerno, 481 U.S. 739, 745, 107 S.
Ct. 2095, 95 L. Ed. 2d 697 (1987)) (cleaned up). Because we
conclude that Rush’s constitutional challenge to §5861(d)
fails, his motion to dismiss was properly denied.
Originally passed by Congress in 1934, the NFA in
its early form required that individuals register certain
firearms, including some with short barrels. Miller, 307
U.S. at 175 n.1. Today, §5861(d) of the NFA provides: “It
shall be unlawful for any person ... to receive or possess
a firearm which is not registered to him in the National
4a
Appendix A
Firearms Registration and Transfer Record....” 26 U.S.C.
§5861(d). The current NFA only applies to specified
firearms, including short-barreled rifles. The NFA also
establishes taxes on making and transferring certain
firearms, again including short-barreled rifles. 26 U.S.C.
§§5811, 5821.
Rush argues §5861(d) is unconstitutional because
it burdens core conduct protected by the Second
Amendment. The Second Amendment instructs: “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. Of course, “like
most rights, the right secured by the Second Amendment
is not unlimited.” Bruen, 597 U.S. at 21 (quoting District
of Columbia v. Heller, 554 U.S. 570, 626, 128 S. Ct. 2783,
171 L. Ed. 2d 637 (2008)) (cleaned up).
Rush asserts that early Supreme Court precedent,
United States v. Miller, does not control and that §5861(d)
cannot pass constitutional muster under a post-Bruen
analysis. We first address the question of whether Miller
applies. Next, we turn to the related question of whether
Miller is incompatible with Bruen.
A. United States v. Miller
In United States v. Miller, the defendants were
charged with unlawfully transporting an unregistered
firearm—a shotgun with a barrel less than 18 inches
in length—in interstate commerce in violation of the
NFA. 307 U.S. at 175. After examining early colonial
laws that regulated musket length (e.g., muskets must
5a
Appendix A
“not [be] less than three feet, nine inches”), the Supreme
Court determined that the Second Amendment does not
guarantee a right to possess an unregistered, shortbarreled shotgun. Id. at 175-76, 179-80, 183. Thus, Miller
upheld the challenged NFA provision.
The government argues that Miller forecloses the relief
Rush seeks because Miller upheld the constitutionality
of §5861(d)’s predecessor, which also required the
registration of certain short-barreled firearms. The
government points out that a court of appeals must follow
Supreme Court precedent that “has direct application in a
case,” even if that precedent “appears to rest on reasons
rejected in some other line of decisions.” Rodriguez de
Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109
S. Ct. 1917, 104 L. Ed. 2d 526 (1989).
We have recently reiterated this very principle. In
United States v. White, we explained that “the Supreme
Court has instructed us to resist invitations to find its
decisions overruled by implication.” 97 F.4th 532, 539
(7th Cir. 2024) (citing Mallory v. Norfolk S. Ry. Co., 600
U.S. 122, 136, 143 S. Ct. 2028, 216 L. Ed. 2d 815 (2023)).
“When a Supreme Court decision is directly controlling,
our job is to follow it, leaving to the Court the prerogative
of overruling its own decisions.” Id. (cleaned up). This
is so even if “intervening decisions have eroded [the
precedent’s] foundation.” Id. (citation omitted). Rush’s
case is no exception.
The rule of law demands we follow binding Supreme
Court precedent. And, the Supreme Court’s more recent
Second Amendment jurisprudence does not reject Miller
6a
Appendix A
as Rush suggests, but rather directly engages with it.
Bruen, 597 U.S. at 21 (citing Heller, 554 U.S. at 627,
quoting Miller, 307 U.S. at 179, for the proposition that
“prohibiting the carrying of dangerous and unusual
weapons” is “fairly supported by the historical tradition”
while the “Second Amendment protects the possession
and use of weapons that are in common use at the time.”
(internal quotations omitted)).
Rush’s attempt to factually distinguish Miller is
unavailing. The fact that Miller involved an unregistered,
short-barreled shotgun and Rush was convicted of
possessing an unregistered, short-barreled rifle does not
control the outcome of this appeal. Both are long guns
with shortened barrels, which are dangerous because
they are more powerful than traditional handguns yet
are easier to conceal. See Bianchi v. Brown, 111 F.4th
438, 451 (4th Cir. 2024). And both involve a characteristic
that makes the firearm especially attractive to criminals
while adding little—if any—functionality to the firearm
for lawful use. Perhaps more importantly, both were
regulated under the NFA provisions in effect at the time
of the defendants’ convictions—provisions that simply
required the registration of the firearms. See generally
Bruen, 597 U.S. at 56-57 (contrasting outright bans with
fees). We see no reason to cabin Miller’s holding and read
it so narrowly.
In that vein, we understand Miller, and its subsequent
treatment through Bruen, to emphasize two distinct
features of Second Amendment jurisprudence. One,
the type of weapon at issue is of critical importance.
Weapons, like machine guns, that are “not typically
7a
Appendix A
possessed by law-abiding citizens for lawful purposes”
remain unprotected. Heller, 554 U.S. at 625 (citing Miller);
see also Staples v. United States, 511 U.S. 600, 611-12,
114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994) (considering
“machineguns, sawed-off shotguns, and artillery pieces”
as “items the ownership of which would have ... [a] quasisuspect character.”). And two, licensing regimes designed
to ensure firearm applicants “are, in fact, law-abiding
responsible citizens”—including those that impose some
pecuniary cost on the applicants—are categorically
different than weapons bans. Bruen, 597 U.S. at 38 n.9
(citation omitted). Rahimi and Bruen clarify the logic of
Miller that onerous restrictions on weapons are distinct
from licensing requirements of firearms. Rahimi, 602
U.S. at 699-700 (distinguishing constitutional licensing
regulations that presume individuals have a right to carry
a firearm from unconstitutional regimes that require
applicants make a special showing of need); Bruen,
597 U.S. at 38 n.9 (“[N]othing in our analysis should be
interpreted to suggest” registration laws “which often
require applicants to undergo a background check or pass
a firearm safety course” and do not impose “exorbitant
fees” are unconstitutional.).
In sum, Miller “has direct application in [this] case,”
and we therefore follow it. See Rodriguez de Quijas,
490 U.S. at 484. 2 This alone is dispositive and brings
2. Our reading of Miller and its continuing validity is in
agreement with our sister Circuits. See, e.g., Hanson v. District of
Columbia, 120 F.4th 223, 239 (D.C. Cir. 2024) (interpreting Miller’s
central holding regulating weapons “capable of unprecedented
lethality” as good law post-Bruen); United States v. Price, 111
F.4th 392, 400 (4th Cir. 2024) (“Nothing in Bruen abrogated” the
8a
Appendix A
Rush’s challenge to a halt. But central to Rush’s appeal
is his assertion that §5861(d) fails under Bruen, and
we therefore continue on to consider that framework.
Bearing in mind that we leave to the Supreme Court the
prerogative of overruling its own decisions, we do this not
in the context of first impression, but rather with an eye
for whether the test set forth in Bruen is incompatible
with Miller. See Mallory, 600 U.S. at 136.
B. Bruen Analysis
In Bruen, the Court analyzed whether a state
could require applicants for a public carry gun permit
to demonstrate that they had a “special need” for selfprotection distinguishable from that of the general
community. Id. at 11-13. The Court explained that the
Second Amendment’s protection of the “right of an
ordinary, law-abiding citizen to possess a handgun in the
home for self-defense” extends to carrying “a handgun for
self-defense outside the home.” Id. at 8-10. Rush argues
that Bruen compels us to find the licensing and taxing
requirements of §5861 violate the Second Amendment.
Bruen’s holding, however, was not so expansive as to
overrule Miller, nor does the test laid out in Bruen call
into question Miller’s core holding or continued validity.
Bruen set forth a two-step test for evaluating the
constitutionality of a statute under the Second Amendment.
Id. at 24. The Bruen framework directs us to first answer
whether “the Second Amendment’s plain text covers an
proposition that weapons not commonly used for a lawful purpose
“such as short-barreled shotguns” could be regulated.) (citation
omitted).
9a
Appendix A
individual’s conduct” (such as possessing, receiving, or
carrying a certain firearm within a particular place). Id.
If it does, the Constitution presumptively protects that
conduct. Id. We must then ask whether the challenged
regulation is “consistent with the Nation’s historical
tradition of firearm regulation.” Id. The government bears
the burden on the second step. Id.
So, in relation to Rush’s challenge, we ask (1) whether
the text of the Second Amendment covers the possession of
an unregistered, short-barreled rifle, and if so, (2) whether
§5861(d) of the NFA is consistent with the country’s
historical tradition of firearm regulation. We take each
step in turn and stress once again that we take these steps
not on a blank slate, but rather to see if recent Supreme
Court cases overruled Miller.
i.
Step One
The Second Amendment generally protects the right
of “the people” to “keep and bear arms.” U.S. Const.
amend. II. The natural next questions become who are
“the people,” what is an “arm,” and what does it mean to
“keep and bear” them? The parties do not dispute that
Rush—an ordinary, law-abiding, adult citizen—is part of
the “people” under the Second Amendment. Bruen, 597
at 31-32. We thus look to whether the firearm at issue—a
short-barreled rifle—falls within the scope of “arms” that
individuals are entitled to “keep and bear.” 3
3. Bruen does not address which party bears the burden on step
one, and the parties disagree on this point. Because Rush’s challenge
fails regardless of burden, we do not decide this issue.
10a
Appendix A
We may look beyond colonial-era firearms, because
while the “Second Amendment’s definition of ‘arms’ is fixed
according to its historical understanding, that general
definition covers modern instruments that facilitate armed
self-defense.” Bruen, 597 U.S. at 28. As we recognized in
Bevis v. City of Naperville, “[t]his presents a line-drawing
problem.” 85 F.4th 1175, 1181-82 (7th Cir. 2023). While a
personal handgun carried for self-defense is an “arm”
that law-abiding citizens are free to “keep and bear,” and
a nuclear weapon is not, “[m]any weapons ... lie between
these extremes.” Id. at 1182.
Rush argues that the text of the Second Amendment
extends to all “bearable” arms and thus his possession
of a short-barreled rifle falls neatly within its ambit.
Here, Rush’s argument is contrary to our own precedent.
In Bevis, we confronted this very issue, explaining
that “bearable” must mean more than “transportable”
or “capable of being held.” See Bevis, 85 F.4th at 1193
(describing how a machine gun is literally a “bearable
arm” in that it can be physically “pick[ed] up and carr[ied]”
yet is not constitutionally protected (citing Heller, 554
U.S. at 624, 627)). Bruen reaffirmed that “the right [to
bear arms] [i]s not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever
purpose.” Bruen, 597 U.S. at 21 (quoting Heller, 554 U.S.
at 626). Instead, the Second Amendment protects the right
of an ordinary, law-abiding citizen to possess a firearm
“in common use” for a lawful purpose like self-defense.
Id. at 32 (quoting Heller, 554 U.S. at 627). As we discuss
in greater detail on Bruen’s second step, this is supported
by “the historical tradition of prohibiting the carrying of
11a
Appendix A
‘dangerous and unusual weapons....’” Id. at 21 (quoting
Heller, 554 U.S. at 627).
In Bevis, for instance, we concluded that the state
had a strong likelihood of success on the merits (as
required at the preliminary injunction stage) in showing
that its regulation of assault weapons and high-capacity
magazines was constitutional because such weapons were
not within “the class of Arms protected by the Second
Amendment.” 85 F.4th at 1182. In surveying the evolution
of Second Amendment jurisprudence, we recognized that
the Second Amendment does not protect weapons that are
not typically “possessed by law-abiding citizens for lawful
purposes, such as short-barreled shotguns” and that this
“accords with the historical understanding of the scope of
the right.” Id. at 1193 (emphasis added) (quoting Heller,
554 U.S. at 625). Here, the majority opinion in Bevis
found agreement with the dissent. Id. at 1223 (Brennan,
J., dissenting) (restating that Miller means the “Second
Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes,
such as short-barreled shotguns.” (quoting Heller, 554
U.S. at 625)).
Thus, this court —post-Br uen—acknowledged
the Supreme Court’s recognition that short-barreled
shotguns fall on the constitutionally unprotected side of
the “bearable arms” line because they are not in common
use for a lawful purpose—which, at its core, is self-defense.
Bevis, 85 F.4th at 1193 (citing Heller, 554 U.S. at 624-25).
No intervening Supreme Court case has called Bevis into
12a
Appendix A
doubt, and this court has not overruled it.4 We therefore
afford Bevis “considerable weight” and will not overturn
circuit precedent based on the arguments Rush advances.
See Russ v. Watts, 414 F.3d 783, 788 (7th Cir. 2005).
The government, for its part, contends that a shortbarreled rifle is not an “arm” within the meaning of the
Second Amendment because it is “dangerous and unusual”
and therefore falls outside the scope of constitutional
protection. Indeed, as previewed, long guns with shortened
barrels are often considered dangerous because they are
“more easily concealable than long-barreled rifles” and
unusual because they “have more destructive power than
traditional handguns, making them particularly desirable
to malefactors and crooks.” Bianchi, 111 F.4th at 451
(citation omitted). Rush argues that short-barreled rifles
are in common use today, but he does not specifically
connect that alleged common use to a lawful purpose like
self-defense. More on that to come.
The government contends that Rush’s claim fails on
step one for an additional reason—the NFA’s registration
and taxation requirements are not “infringements” on
4. We note that the Bevis plaintiffs’ petition for a writ of
certiorari was denied by the Supreme Court in July 2024. Harrel v.
Raoul, 144 S. Ct. 2491, 2492, 219 L. Ed. 2d 1333 (2024). Justice Alito
would have granted the petition. Id. In addition, Justice Thomas
expressed that “[i]t is difficult to see how the Seventh Circuit
could have concluded that the most widely owned semiautomatic
rifles are not ‘Arms’ protected by the Second Amendment.” Id. at
2492-93 (Thomas, J., statement respecting the denial of certiorari).
Nevertheless, Bevis remains good law and we adhere to circuit
precedent.
13a
Appendix A
Second Amendment rights. Recall that §5861(d) does
not ban short-barreled rifles—it merely establishes a
registration and taxation scheme applicable to them.
The Supreme Court has signaled approval of regimes
that require applicants to undergo background checks
or pass firearm safety courses. Bruen, 597 U.S. at 38 n.9
(“[N]othing in our analysis should be interpreted to
suggest the unconstitutionality of the 43 States’ ‘shallissue’ licensing regimes ... which ... are designed to
ensure only that those bearing arms in the jurisdiction
are, in fact, ‘law-abiding, responsible citizens.’” (first
quoting Drake v. Filko, 724 F.3d 426, 442 (3d Cir. 2013)
(Hardiman, J., dissenting); and then quoting Heller, 554
U.S. at 635). For purposes of a facial challenge—and
with Rush advancing no arguments that he applied for
a license, or necessarily would have been denied one—
we are forced to accept that §5861(d) does not prevent
ordinary, law-abiding adult citizens from obtaining the
necessary license and lawfully owning a short-barreled
rifle. Section 5861(d) merely requires them to register
the firearm and pay the accompanying tax. Stated
differently, the registration requirement can be read
as a condition of lawful possession, and not a Second
Amendment infringement in the first instance. And, as
Bruen recognized, even “arms” within the meaning of
the Second Amendment may be regulated, so long as the
regulation is “part of an enduring American tradition of
state regulation.” Bruen, 597 U.S. at 69.
In any event, we decline to make a step one finding
that short-barreled rifles are “arms” protected by the
Second Amendment’s text—at least not on this occasion
under the theories presented by Rush. The record does
14a
Appendix A
not show such firearms are commonly used by ordinary,
law-abiding citizens for a lawful purpose like selfdefense. Bruen, 597 U.S. at 32. More precisely, we are
not convinced that Bruen spoke to this issue in a manner
that overrules Miller, and that is all we must decide for
this appeal. We turn to step two in our Bruen analysis
in the interest of completeness. As discussed below, even
if short-barreled rifles were “arms” within the meaning
of the Second Amendment, historical tradition likely
supports regulating them.
ii.
Step Two
Our job in step two is to determine whether §5861(d)
is consistent with the country’s historical tradition, and
the government bears the burden of identifying a relevant
historical analogue for the modern-day regulation. Bruen,
597 U.S. at 29-30. Specifically, we consider “whether
‘historical precedent’ from before, during, and even after
the founding evinces a comparable tradition of regulation.”
Id. at 27 (citing Heller, 554 U.S. at 631).
“[T]he search is for a historical regulation that is
relevantly similar, not identical.” Bevis, 85 F.4th at 1191
(emphasis in original). Even if the modern-day regulation
is not “a dead ringer for historical precursors, it still may
be analogous enough to pass constitutional muster”—we
need not find a historical “twin.” Bruen, 597 U.S. at 30.
Then, the question becomes whether the modern and
historical regulations “impose a comparable burden on
the right of armed self-defense and whether that burden
is comparably justified”—in other words, why and how a
15a
Appendix A
regulation burdens the Second Amendment right. Id. at
29. Comparing the “[w]hy and how” of past regulations
to a challenged one is “central” to the Bruen inquiry.
Rahimi, 602 U.S. at 692. When the historical laws
“address[ed] particular problems” there is a good chance
“contemporary laws imposing similar restrictions for
similar reasons” are also permissible. Id. The laws do not
need to “precisely match”—the contemporary one must
only “comport with the principles underlying the Second
Amendment....” Id.
The government points to numerous historical
regulations on barrel length, regulations on firearms
trade, registration and taxation requirements, and
regulations on dangerous and unusual weapons. For
example, a 1649 Massachusetts law, cited in Miller,
required musketeers to carry a “good fixed musket ... not
less than three feet, nine inches, nor more than four feet
three inches in length....” Miller, 307 U.S. at 180. Also cited
in Miller is a 1785 Virginia law regulating the length of
militia members’ firearms, providing that “[e]very noncommissioned officer and private” shall be equipped “with
a good, clean musket carrying an ounce ball, and three feet
eight inches long in the barrel....” Id. at 181. While some
early laws appear specific to militia members, they are
often relevant because the traditional militia was formed
from a pool of men bringing arms “in common use at the
time” for lawful purposes. Bevis, 85 F.4th at 1193 (quoting
Heller, 554 U.S. at 624). Thus, many historical analogues
concerning regulation of firearms that militia members
were directed to keep are instructive (although certainly
not dispositive).
16a
Appendix A
There were also colonial and post-colonial laws akin
to modern-day registration and taxation requirements.
For instance, a 1631 Virginia law required recording
“arms and munitions,” and certain colonial “muster” laws
required registration of arms into the 1800s. 5 Moving
well past ratification of the Constitution, an 1856 North
Carolina law imposed a tax of “one dollar and twenty five
cents” on “every pistol, except such as are used exclusively
for mustering....”6 These are but a few of the analogous
historical laws cited by the government.
Rush recognizes that §5861(d) mandates compliance
with the NFA’s “taxation and registration” requirements—
requirements that have been upheld as a valid exercise of
legislative taxing authority. Sonzinsky v. United States,
300 U.S. 506, 514, 57 S. Ct. 554, 81 L. Ed. 772, 1937-1 C.B.
351 (1937) (NFA’s taxing scheme is “within the national
taxing power”); see also United States v. Moses, 513
F.3d 727, 732 (7th Cir. 2008) (observing that although “a
violation of §5861(d) necessarily involves the possession of
a firearm, the crime is more aptly characterized as a form
of tax evasion.”); United States v. Lim, 444 F.3d 910, 913
(7th Cir. 2006) (“Having required payment of a transfer
5. Robert J. Spitzer, Gun Law History in the United States
and the Second Amendment Rights , 80 Law & Contemp. Probs.
55, 74-76 (2017); Robert H. Churchill, Gun Regulation, the Police
Power, and the Right to Keep Arms in Early America: The Legal
Context of the Second Amendment, 25 Law & Hist. Rev. 139, 14748, 161 (2007); see also United States v. Holton, 639 F. Supp. 3d 704,
711-12 (N.D. Tex. 2022).
6. An Act Entitled “Revenue,” 1856 N.C. Sess. Laws 34, chap.
34, §2, pt. 4.
17a
Appendix A
tax and registration as an aid in collection of that tax,
Congress under the taxing power may reasonably impose
a penalty on possession of an unregistered firearm.”
(quoting United States v. Gresham, 118 F.3d 258, 262
(5th Cir. 1997))). But, says Rush, regulations that “taxed
or registered” short-barreled arms did not exist during
the Founding Era. Not so.
As an initial matter, the government is not constrained
to only Founding Era laws. While not every time period
is weighed equally, Bruen instructs us to consider
“historical precedent from before, during, and even after
the founding....” Bruen, 597 U.S. at 27. Of course, because
“[c]onstitutional rights are enshrined with the scope
they were understood to have when the people adopted
them[,]” we give considerable weight to the time periods
immediately leading up to and during the adoption of the
Second Amendment in 1791. Id. at 34 (emphasis in original)
(quoting Heller, 554 U.S. at 634-35); see also id. at 81-83
(Barrett, J., concurring) (cautioning against “freewheeling
reliance on historical practice from the mid-to-late 19th
century to establish the original meaning of the” Second
Amendment).
As we have said, the government points to numerous
historical taxation and registration regulations suggesting
§5861(d) fits within the historical tradition of firearms
regulation. Setting aside the historic analogues cited
by the government to carry its burden, the government
could have also cited to laws enacted around the time of
founding, which prescribed fines, taxes, or sureties on gun
possession or use for violence prevention purposes. For
18a
Appendix A
instance, a 1759 New Hampshire law called for the arrest
and fine of those who “go armed offensively” and allowed
justices of the peace to “commit the offender to prison,
until he or she finds such sureties for the peace and good
behavior....”7 A 1763 New York law condemned carrying or
shooting any “Musket, Fowling-Piece, or other Fire-Arm
whatsoever” in certain areas of “New York [City] or the
Liberties thereof, without [a] License in Writing first ...
and ... he, she, or they so offending, shall ... forfeit and pay
... the Sum of Twenty Shillings” per offense. 8 Southwark
(present-day Philadelphia) passed laws in 1774 and 1794
that imposed fines (e.g., “the sum of ten shillings”) for
discharging a firearm within a certain distance of any
building, and later, “within the regulated parts of the
district, without the permission of the president of the
board of commissioners[,]” respectively.9 These are but a
few illustrations. Surety statutes both generally presumed
that individuals had a right to public carry, Bruen, 597
U.S. at 56, yet also “provided a mechanism for preventing
violence before it occurred....” Rahimi, 602 U.S. at 697.
7. An Act for Establishing and Regulating Courts of Public
Justice Within this Province (1759), in A cts and L aws of H is
M ajesty ’s Province of New H ampshire, in New England 1-2 (1761).
8. Act of Dec. 20, 1763, in Laws of New-York, From The Year
1691, to 1773 Inclusive 441-42 (Hugh Gaine ed., 1774).
9. See Act of Dec. 24, 1774, in Ordinances of the Corporation of
the District of Southwark, and the Acts of the A ssembly Relating
Thereto 49-50 (1829); see also Act of Sept. 22, 1794, in Ordinances
of the Corporation of the District of S outhwark , and the Acts
of the A ssembly Relating T hereto 51 (1829).
19a
Appendix A
Finally, the government asserts that historical
analogues exist for regulating dangerous and unusual
weapons, like short-barreled rifles. At common law, for
example, a person was prohibited from “arm[ing] himself
with dangerous and unusual weapons, in such a manner as
w[ould] naturally cause a terror to the people....” State v.
Langford, 10 N.C. 381, 383 (1824). “[G]oing armed” laws
prohibited “riding or going armed” with “dangerous or
unusual weapons” because it disrupted public order and
led “almost necessarily to actual violence.” Rahimi, 602
U.S. at 697 (recognizing that prohibitions on going armed
existed at English common law and were incorporated
into American jurisprudence) (cleaned up). These historic
laws mirror the NFA in their purpose. One of the NFA’s
very objectives is “to regulate certain weapons likely to be
used for criminal purposes, just as the regulation of shortbarreled rifles, for example, addresse[d] a concealable
weapon likely to be so used.” United States v. Thompson/
Center Arms Co., 504 U.S. 505, 517, 112 S. Ct. 2102, 119
L. Ed. 2d 308 (1992) (plurality opinion).
We turn, as we must, to the “how” and “why” of
historical regulations versus the “how” and “why” of §5861.
There are striking similarities between the animating
principles behind historical regulations and §5861. We set
aside the debate on how to divine why a legislature acted
for another day. For our present purposes, it is enough
to say that since before our founding, continuing through
the lives of the founding generation, and even lasting until
today there has stood an unbroken line of common sense
regulations permitting our duly elected representatives
to limit weapons where the likely use for the weapon is
20a
Appendix A
a violent breach of the peace. Such is the unmistakable
purpose of surety laws, riding while armed limitations, and
the long-recognized need to place dangerous and unusual
weapons in a category of their own. Applying this to §5861
yields a clear result. The NFA regulates rifle barrel length
because a short-barreled rifle’s concealability coupled
with its “heightened capability to cause damage” make
the weapon more appealing to those who intend to wield
the firearm for unlawful use. United States v. Cox, 906
F.3d 1170, 1185 (10th Cir. 2018) (quotation omitted); see
also Thompson/ Ctr. Arms Co., 504 U.S. at 517 (plurality
opinion).
And, §5861 is merely a taxing statute, so just as
the “why” regulates firearms with characteristics
uniquely suitable for criminal purposes, the “how” of
the regulation has little impact on lawful possession for
armed self-defense. Section 5861 does nothing to offend
the Constitution that has stood as a bulwark between
the people and governmental overreach for centuries. It
simply makes those who desire a weapon likely to breach
the peace register that weapon and pay a tax.
Rush insists that short-barreled rif les are not
dangerous and unusual, and that they were not only in
common use during the Founding Era but remain common
today.10 In support, he cites various secondary sources
describing types of short-barreled weapons in use as
early as the 1800s in England and during the American
10. We address commonality on step two without deciding which
Bruen step it falls within. See Bevis, 85 F.4th at 1198 (“There is no
consensus on whether the common-use issue belongs at Bruen step
one or Bruen step two.”).
21a
Appendix A
Revolution. He also cites statistics that he believes
demonstrate the widespread use of short-barreled rifles
today. A Bureau of Alcohol, Tobacco, Firearms and
Explosives statistic cited by Rush states that there were
532,725 registered short-barreled rifles in the United
States in 2021.11
But we have previously rejected this ty pe of
commonality reasoning. See Bevis, 85 F.4th at 119899 (“[ W ]e decline to base our assessment of the
constitutionality of these laws on numbers alone. Such an
analysis would have anomalous consequences.”); see also
Friedman v. City of Highland Park, 784 F.3d 406, 409
(7th Cir. 2015). In Friedman, we acknowledged that the
Thompson submachine gun, for example, was notoriously
common in Chicago during the Prohibition era but
explained that its popularity did not afford it constitutional
immunity from the federal prohibition enacted under the
NFA. 784 F.3d at 408-09.12 More critically, Rush says
nothing of what short-barreled rifles are commonly used
11. We note that the Bevis plaintiffs seeking to strike down an
assault weapons ban asserted in their briefing that there were at
least “20 million AR-15s and similar rifles” owned by “some 16 million
citizens.” Bevis, 85 F.4th at 1198. That alleged figure could not save
the day in Bevis, and likewise, Rush’s figure (nearly thirty-eight
times smaller) cannot save his Second Amendment challenge here.
12. In Bevis we explained that our reasoning in Friedman was
“basically compatible with Bruen” because that decision “anticipated
the need to rest the [Second Amendment] analysis on history, not on
a free-form balancing test.” 85 F.4th at 1189-90. Regardless, for our
purposes here, we cite Friedman simply for its observation that a
firearm’s popularity in contemporary times has little jurisprudential
value, on its own, in a “commonality” analysis. 784 F.3d at 409.
22a
Appendix A
for. Second Amendment protection, of course, extends only
to those firearms in common use for a lawful purpose like
self-defense, not to any prolific firearm. See Rahimi, 602
U.S. at 690 (discussing Second Amendment right as the
right to armed “self-defense”); see also Bianchi, 111 F.4th
at 460 (applying Bruen, stating, “[j]ust because a weapon
happens to be in common use does not guarantee that it
falls within the scope of the right to keep and bear arms.”).
In all, the government’s historical analogues for
barrel-length regulations, registration and taxation
requirements, as well as regulations of dangerous and
unusual weapons are compelling. With this backdrop, we
easily answer the only question at issue for this appeal:
does Bruen’s two-step test—or any other Supreme Court
holding for that matter—overrule Miller? We see no basis
to recognize Miller as overruled. Section 5861(d) is likely
“relevantly similar” to these historical regulations in both
why and how it burdens any Second Amendment right such
that it “pass[es] constitutional muster.” Bruen, 597 U.S.
at 30; Rahimi, 600 U.S. at 698. Indeed, §5861(d) imposes
a comparable burden to its historic counterparts, and
in some cases, a lesser one, requiring mere registration
of an otherwise lawful firearm. See Rahimi, 600 U.S. at
698 (finding the challenged provision was “by no means
identical to these founding era regimes” but that “it does
not need to be” (citing Bruen, 597 U.S. at 30)). Further,
the penalty, potential imprisonment only after failing to
register and paying applicable taxes, likely also fits within
the regulatory tradition of the going armed laws and those
imposing fees, taxes, or fines. See id. at 699.
23a
Appendix A
We are left with the conclusion that Miller survives
Bruen. We also recognize that “the constitutional issues
at stake are weighty.” Atkinson v. Garland, 70 F.4th 1018,
1023 (7th Cir. 2023). Therefore, while we meet our duty
to address arguments raised directly by the parties, we
also deem it appropriate to decide this case on the simple
fact that Miller controls. See, e.g., Pantoja v. Portfolio
Recovery Assocs., LLC, 852 F.3d 679, 684 (7th Cir. 2017)
(deciding case on narrower grounds); Fessenden v.
Reliance Standard Life Ins. Co., 927 F.3d 998, 1003 (7th
Cir. 2019) (same). The district court correctly held that
§5861(d) is constitutional and appropriately denied Rush’s
motion to dismiss the superseding indictment.
III. Conclusion
For the reasons set forth, we AFFIRM.
24a
Appendix B
APPENDIX B — MEMORANDUM
AND ORDER
OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ILLINOIS,
FILED JANUARY 25, 2023
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 22-cr-40008-JPG
UNITED STATES OF AMERICA,
Plaintiff,
v.
JAMOND M. RUSH,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on defendant
Jamond M. Rush’s motion to dismiss the First Superseding
Indictment in light of the Supreme Court’s recent decision
in New York State Rifle & Pistol Association v. Bruen,
142 S. Ct. 211 (2022) (Doc. 28). The Government has
responded to the motion (Doc. 38), and Rush has replied
to that response (Doc. 43).
I.
Background
On April 5, 2022, the grand jury returned an
indictment charging Rush with one count of being a felon
25a
Appendix B
in possession of a firearm in violation of 18 U.S.C. § 922
(g)(1) and seeking forfeiture of the firearm (an AR-15 rifle)
and ammunition involved in his alleged offense (Doc. 1).
On August 16, 2022, the grand jury returned the First
Superseding Indictment changing the charge to receiving
or possessing an unregistered short-barreled rifle in
violation of 26 U.S.C. §§ 5841, 5861(d), and 5871, and
seeking forfeiture of the same firearm and ammunition
sought in the original indictment (Doc. 18). The relevant
part of the National Firearms Act (“NFA”) states, “It
shall be unlawful for any person . . . to receive or possess
a firearm which is not registered to him in the National
Firearms Registration and Transfer Record.” 26 U.S.C.
§ 5861(d).
On September 26, 2022, Rush asked the Court to
dismiss the First Superseding Indictment on the grounds
that the statute requiring him to register his shortbarreled rifle in the National Firearms Registration and
Transfer Records, 26 U.S.C. § 5861(d), unduly burdens his
core Second Amendment right to keep and bear arms for
self-defense. In support, he points to the Supreme Court’s
recent decision in Bruen.
In response, the Government contends that the
possession of short-barreled rifles is not protected by
the Second Amendment because such a weapon is a
“dangerous and unusual weapon” not commonly possessed
for self-defense. Furthermore, it argues there is a
historical tradition regulating the concealed carrying of
dangerous and unusual weapons, including weapons like
short-barreled rifles.
26a
Appendix B
II. Analysis
The Second Amendment provides, “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. In the past fifteen
years, the Supreme Court has made landmark rulings
about the Second Amendment’s meaning and application.
The first of these cases, District of Columbia v. Heller,
554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008),
was decided after decades without any major Supreme
Court decisions considering the Second Amendment. It
rejected the understanding that the amendment applied
only to arms for militia service.
In Heller, the Supreme Court considered a District of
Columbia prohibition on, among other things, possessing
a handgun in the home. Id. at 574-75. It concluded that
the Second Amendment right to keep and bear arms
is not confined to the context of militia service but
instead extends to an individual’s right to possess and
carry weapons for self-defense in case of confrontation.
Id. at 595. Nevertheless, it acknowledged that the
right is not limitless; the Second Amendment does not
“protect the right of citizens to carry arms for any sort
of confrontation.” Id. (emphasis in original). Indeed,
historically “the right was not a right to keep and carry
any weapon whatsoever in any manner whatsoever and
for whatever purpose.” Id. at 626 (citing prohibitions on
carrying concealed weapons, possession by felons and the
mentally ill, carrying in sensitive places, or conditions
and qualifications for commercial sales); accord New York
27a
Appendix B
State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111,
2128, 213 L. Ed. 2d 387 (2022); McDonald v. City of Chi.,
561 U.S. 742, 786, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).
For example, Heller cites United States v. Miller, 307
U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206, 1939-1 C.B. 373
(1939), for the proposition that certain types of weapons
are, because of their nature, not covered by the Second
Amendment. Heller, 554 U.S. at 622. In Miller, the weapon
at issue was a short-barreled shotgun, which the Miller
Court observed was not, at the time the Bill of Rights was
adopted, “part of the ordinary military equipment” and
could not “contribute the to the common defense.” Miller,
307 U.S. at 178.
Heller drew from the Miller decision that “the Second
Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes,
such as short-barreled shotguns.” Heller, 554 U.S. at
624-25. On the contrary, the Second Amendment covers
only arms “of the kind in common use at the time” that a
citizen would have been expected to bring with him when
called for militia service. Id. at 627. The Supreme Court
concluded that such an understanding “accords with the
historical understanding of the scope of the right,” id. at
625, and “is fairly supported by the historical tradition
of prohibiting the carrying of ‘dangerous and unusual
weapons,’” id. at 627. Heller concluded that the District
of Columbia’s ban on handguns—the overwhelming public
choice for self-defense—held and used for self-defense in
the home violated the Second Amendment. Id. at 628-29,
635.
28a
Appendix B
There is no reason the exclusion from Second
Amendment protection of “dangerous and unusual
firearms” should not apply as well to short-barreled rifles,
the weapon at issue in this case, as well as short-barreled
shotguns, the weapon in Miller. Bruen did not change this.
The Supreme Court in Bruen considered a New York
regulation requiring an applicant for a license to carry
a firearm in public to have a heightened need for selfprotection. The Bruen Court started by quickly agreeing
that the Second Amendment “right of an ordinary, lawabiding citizen to possess a handgun in the home for selfdefense” extended to carrying handguns for self-defense
in public, outside the home. Bruen, 142 S. Ct. at 2135. It
found no fault with non-discretionary licensing schemes to
exercise the public carry right based on objective criteria,
but condemned New York’s additional requirement that a
public carry license applicant demonstrate “proper cause,”
that is, a “special need for self-protection distinguishable
from that of the general community.” Id. at 2123.1 New York
justified the “proper cause” requirement as “substantially
related to the achievement of an important government
interest,” preventing handgun violence primarily in urban
areas. Id. at 2125, 2131.
In determining that the “proper cause” requirement
infringed on public carry applicants’ Second Amendment
rights, applied to the states under the Fourteenth
A mend ment , t he Supreme Cou r t held t hat t he
constitutionality of a firearm regulation depends solely
1. Restricted licenses were available for non-self-defense uses
such as hunting, target-shooting, or employment. Id. at 2123.
29a
Appendix B
on whether the restriction is consistent with “the
historical tradition that delimits the outer bounds of the
right to keep and bear arms.” Id. at 2127. There is no
“interest balancing” or “means-end scrutiny” inquiry in
this determination. Id. When a regulation limits conduct
covered by the Second Amendment, the Government “must
affirmatively prove” that the regulation is part of the
historical tradition, or the regulation is unconstitutional.
Id. at 2127, 2129-30. Thus, the two—and only—relevant
inquiries are (1) does the Second Amendment’s plain
text cover the regulated conduct and (2) is the regulation
consistent with the country’s historical tradition. Id. at
2126. If the regulated conduct is covered, it is presumed
that the Constitution protects that conduct, and if there
is no historical tradition of regulating that conduct, the
regulation is unconstitutional. Id. at 2129-30.
As noted above, the Bruen Court found the right to
carry in public for self-defense fell within the plain text
of the Second Amendment, satisfying the first relevant
inquiry. Id. at 2134-35. Moving on to the second, the Bruen
Court concluded that the “proper cause” requirement
for receiving a public carry license from New York was
not within the nation’s historical tradition. Id. at 2156.
Although “the right to keep and bear arms in public has
traditionally been subject to well-defined restrictions
governing the intent for which one could carry arms,
the manner of carry, or the exceptional circumstances
under which one could not carry arms,” the Bruen Court
found no “tradition of broadly prohibiting the public
carry of commonly used firearms for self-defense,” and
no “historical tradition limiting public carry only to those
law-abiding citizens who demonstrate a special need for
30a
Appendix B
self-defense.” Id. at 2138, 2156. Therefore, the “proper
cause” requirement was unconstitutional. Id.
Bruen had no impact on the constitutionality of
regulating the receipt or possession an unregistered
short-barreled rifle. While it eliminated the “interest
balancing” or “means-end” tests that some Courts of
Appeals had created after Heller, it confirmed that the
critical inquiry is solely whether the restriction in issue is
consistent with Second Amendment’s text and historical
understanding. Id. at 2131.
Rush’s alleged conduct is not covered by the plain text
or the historical understanding of the Second Amendment.
See United States v. Holton, No. 3:21-CR-0482-B, 2022
U.S. Dist. LEXIS 200327, 2022 WL 16701935, at *4 (N.D.
Tex. Nov. 3, 2022). Heller assures that keeping and bearing
“dangerous and unusual firearms”—like short-barreled
shotguns or rifles or other weapons not typically possessed
by law-abiding citizens for lawful purposes—are outside
the bounds of Second Amendment protection because
such weapons are not in common use by law-abiding
citizens for self-defense. Indeed, by enacting the NFA,
the statute under which Rush is charged, Congress took
aim at “certain weapons likely to be used for criminal
purposes, just as the regulation of short-barreled rifles,
for example, addresses a concealable weapon likely to
be so used,” not weapons typically used by law-abiding
citizens for self-defense. See United States v. Thompson/
Center Arms Co., 504 U.S. 505, 517, 112 S. Ct. 2102, 119 L.
Ed. 2d 308 (1992) (emphasis added). Far from overruling
this part of Heller, Bruen confirmed that the Second
Amendment protects only weapons in common use by
31a
Appendix B
law-abiding citizens for self-defense. Thus, regulating the
receipt or possession of “dangerous and unusual firearms”
like short-barreled rifles does not fall within the Second
Amendment. The Court cannot ignore Heller’s clear
statement on this point. 2
Consequently, the offense with which Rush is charged
does not infringe on his constitutional right to keep and
bear arms as recognized under the Second Amendment,
and the Court must deny his motion to dismiss the
indictment.
III. Conclusion
For the foregoing reasons, the Court DENIES Rush’s
motion to dismiss the First Superseding Indictment (Doc.
28).
IT IS SO ORDERED.
DATED: January 25, 2023
/s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
2. The Court need not reach Rush’s argument that shortbarreled shotguns and rifles are commonly used for self-defense.
This argument runs smack into Heller’s finding that they are not,
and Congress’s decision to regulate them under the NFA precisely
because they are not.
32a
C
APPENDIX CAppendix
— JUDGMENT
OF THE
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ILLINOIS,
FILED NOVEMBER 21, 2023
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
JUDGMENT IN A CRIMINAL CASE
UNITED STATES OF AMERICA
v.
JAMOND M. RUSH
Case Number: 4:22-CR-40008-JPG-1
USM Number: 99310-509
TALMAGE E. NEWTON, IV
Defendant’s Attorney
THE DEFENDANT:
pleaded guilty to count(s) 1 of the Superseding
Indictment
pleaded nolo contendere to count(s)
which was accepted by the court.
was found guilty on count(s)
after a plea of not guilty.
33a
Appendix C
The defendant is adjudicated guilty of these offenses:
Title &
Section
26 U.S.C.
§ 5861(d)
Nature of
Offense
Receipt or
Possession of
Unregistered
Firearm
Offense Ended Count
2/7/2022
1s
The defendant is sentenced as provided in pages 2
through 7 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
The defendant has been found not guilty on
count(s)
Count(s) is are dismissed on the motion
of the United States.
No fine Forfeiture pursuant to order filed
included herein.
,
Forfeiture pursuant to Order of the Court. See
page 7 for specific property details.
It is ordered that the defendant shall notify the
United States attorney for this district within 30 days
of any change of name, residence, or mailing address
until all fines, restitution, costs, and special assessments
imposed by this judgment are fully paid. If ordered to pay
restitution, the defendant shall notify the court and United
34a
Appendix C
States attorney of any material change in the defendant’s
economic circumstances.
Restitution and/or fees may be paid to:
Clerk, U.S. District Court*
750 Missouri Ave.
East St. Louis, IL 62201
*Checks payable to: Clerk, U.S. District Court
November 21, 2023
Date of Imposition of Judgment
/s/ J. Phil Gilbert
Signature of Judge
J. Phil Gilbert, U.S. District Judge
Name and Title of Judge
Date Signed: November 21, 2023
35a
Appendix C
DEFENDANT: Jamond M. Rush
CASE NUMBER: 4:22-cr-40008-JPG-1
IMPRISONMENT
The defendant is hereby committed to the custody
of the Federal Bureau of Prisons to be imprisoned for a
total term of 30 months as to Count 1 of the Superseding
Indictment. This term of imprisonment shall run
concurrently with his pending related case, State of
Illinois, (Pulaski County) case number 22-CF-08.
The court makes the following recommendations to the
Bureau of Prisons:
The defendant is remanded to the custody of the United
States Marshal.
The defendant shall surrender to the United States
Marshal for this district:
at
a.m. p.m. on
as notified by the United States Marshal.
The defendant shall surrender for service of sentence
at the institution designated by the Bureau of Prisons:
before 2 p.m. on
as notified by the United States Marshal.
as notified by the Probation or Pretrial Services
Office.
36a
Appendix C
RETURN
I have executed this judgment as follows:
Defendant delivered on
to
at
, with a certified copy of this judgment
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
37a
Appendix C
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall
be on supervised release for a term of 2 years as to Count
1 of the Superseding Indictment.
Other than exceptions noted on the record at
sentencing, the Court adopts the presentence report
in its current form, including the suggested terms and
conditions of supervised release and the explanations and
justifications therefor.
MANDATORY CONDITIONS
The following conditions are authorized pursuant
to 18 U.S.C. § 3583(d):
The defendant shall not commit another federal, state
or local crime.
The defendant shall not unlaw fully possess a
controlled substance.
The defendant shall refrain from any unlawful use of
a controlled substance. The defendant shall submit to one
drug test within 15 days of release from imprisonment and
at least two periodic drug tests thereafter, as determined
by the Court, not to exceed 52 tests in one year.
The defendant shall cooperate in the collection of DNA
as directed by the probation officer.
38a
Appendix C
ADMINISTRATIVE CONDITIONS
The following conditions of supervised release are
administrative and applicable whenever supervised
release is imposed , regardless of the substantive
conditions that may also be imposed. These conditions
are basic requirements essential to supervised release.
The defendant must report to the probation office in the
district to which the defendant is released within seventytwo hours of release from the custody of the Bureau of
Prisons.
The defendant shall not knowingly possess a firearm,
ammunition, or destructive device. The defendant shall not
knowingly possess a dangerous weapon unless approved
by the Court.
The defendant shall not knowingly leave the federal
judicial district without the permission of the Court or
the probation officer.
The defendant shall report to the probation officer in a
reasonable manner and frequency directed by the Court
or probation officer.
The defendant shall respond to all inquiries of the
probation officer and follow all reasonable instructions of
the probation officer.
The defendant shall notify the probation officer prior to
an expected change, or within seventy-two hours after an
unexpected change, in residence or employment.
39a
Appendix C
The defendant shall not knowingly meet, communicate,
or otherwise interact with a person whom the defendant
knows to be engaged, or planning to be engaged, in
criminal activity.
The defendant shall permit a probation officer to visit the
defendant at a reasonable time at home or at any other
reasonable location and shall permit confiscation of any
contraband observed in plain view of the probation officer.
The defendant shall notify the probation officer within
seventy-two hours of being arrested or questioned by a
law enforcement officer.
SPECIAL CONDITIONS
Pursuant to the factors in 18 U.S.C. 3553(a) and 18 U.S.C.
§ 3583(d), the following special conditions are ordered.
While the Court imposes special conditions, pursuant to
18 U.S. C. § 3603(10), the probation officer shall perform
any other duty that the Court may designate. The Court
directs the probation officer to administer, monitor, and
use all suitable methods consistent with the conditions
specified by the Court and 18 U.S.C. § 3603 to aid persons
on probation/supervised release. Although the probation
officer administers the special conditions, final authority
over all conditions rests with the Court.
The defendant shall participate in treatment for narcotic
addiction, drug dependence, or alcohol dependence, which
includes urinalysis and/or other drug detection measures
and which may require residence and/or participation in
a residential treatment facility, or residential reentry
40a
Appendix C
center (halfway house). The number of drug tests shall not
exceed 52 tests in a one-year period. Any participation will
require complete abstinence from all alcoholic beverages
and any other substances for the purpose of intoxication.
The defendant shall pay for the costs associated with
services rendered, based on a Court approved sliding fee
scale and the defendant’s ability to pay. The defendant’s
financial obligation shall never exceed the total cost of
services rendered. The Court directs the probation officer
to approve the treatment provider and, in consultation
with a licensed practitioner, the frequency and duration
of counseling sessions, and the duration of treatment, as
well as monitor the defendant’s participation, and assist
in the collection of the defendant’s copayment.
While any financial penalties are outstanding, the
defendant shall provide the probation officer and the
Financial Litigation Unit of the United States Attorney’s
Office any requested financial information. The defendant
is advised that the probation office may share financial
information with the Financial Litigation Unit.
While any financial penalties are outstanding, the
defendant shall apply some or all monies received, to
be determined by the Court, from income tax refunds,
lottery winnings, judgments, and/or any other anticipated
or unexpected financial gains to any outstanding courtordered financial obligation. The defendant shall notify
the probation officer within 72 hours of the receipt of any
indicated monies.
The defendant shall pay any financial penalties imposed
which are due and payable immediately. If the defendant
41a
Appendix C
is unable to pay them immediately, any amount remaining
unpaid when supervised release commences will become a
condition of supervised release and be paid in accordance
with the Schedule of Payments sheet of the judgment
based on the defendant’s ability to pay.
The defendant’s person, residence, real property, place
of business, vehicle, and any other property under the
defendant’s control is subject to a search, conducted
by any United States Probation Officer and other such
law enforcement personnel as the probation officer may
deem advisable and at the direction of the United States
Probation Officer, at a reasonable time and in a reasonable
manner, based upon reasonable suspicion of contraband
or evidence of a violation of a condition of release, without
a warrant. Failure to submit to such a search may be
grounds for revocation. The defendant shall inform any
other residents that the premises and other property
under the defendant’s control may be subject to a search
pursuant to this condition.
U.S. Probation Office Use Only
A U.S. Probation Officer has read and explained the
conditions ordered by the Court and has provided me with
a complete copy of this Judgment. Further information
regarding the conditions imposed by the Court can be
obtained from the probation officer upon request.
Upon a finding of a violation of a condition(s) of probation
or supervised release, I understand that the court may
(1) revoke supervision, (2) extend the term of supervision,
and/or (3) modify the conditions of supervision.
42a
Appendix C
Defendant’s Signature
Date
U.S. Probation Officer
Date
43a
Appendix C
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary
penalties under the schedule of payments on Sheet 6.
Assess- Restitu Fine
ment
tion
TOTALS $100.00
$-0-
AVAA JVTA
Assess- Assessment* ment**
$100.00 $-0-
$-0-
The deter mination of restitution is defer red
unt i l . A n Am en d ed Ju d gm ent in a
Criminal Case (AO 245C) will be entered after such
determination.
The defendant must make restitution (including
community restitution) to the following payees in the
amount listed below.
If the defendant makes a partial payment, each payee
shall receive an approximately proportioned payment,
unless specified otherwise in the priority order or
percentage payment column below. However, pursuant
to 18 U.S.C. § 3664(i), all nonfederal victims must be paid
before the United States is paid.
* Amy, Vicky, and Andy Child Pornography Victim Assistance
Act of 2018, Pub. L. No. 115-299
** Justice for Victims of Trafficking Act of 2015, Pub. L. No.
114-22.
44a
Appendix C
Name of
Payee
Total
Loss***
Restitution Priority or
Ordered
Percentage
Restitution amount ordered pursuant to plea
agreement $
The defendant must pay interest on restitution and
a fine of more than $2,500, unless the restitution or
fine is paid in full before the fifteenth day after the
date of judgment, pursuant to 18 U.S.C. § 3612(f). All
of the payment options on Sheet 6 may be subject to
penalties for delinquency and default, pursuant to 18
U.S.C. § 3612(g).
The court determined that the defendant does not
have the ability to pay interest and it is ordered that:
the interest requirement is waived for fine
restitution.
the interest requirement for fine restitution
is modified as follows:
*** Findings for the total amount of losses are required under
Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed
on or after September 13, 1994, but before April 23, 1996.
45a
Appendix C
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment
of the total criminal monetary penalties is due as follows:
A. Lump sum payment of $ due immediately,
balance due
not later than , or
in accordance C, D, E, or F below; or
B. Payment to begin immediately (may be combined
with C, D, or F below; or
C. Payment in equal (e.g., weekly, monthly,
quarterly) installments of $ over a period
of (e.g., months or years), to commence
(e.g., 30 or 60 days) after the date of this
judgment; or
D. Payment in equal (e.g., weekly, monthly,
quarterly) installments of $ over a period
of (e.g., months or years), to commence
(e.g., 30 or 60 days) after release from
imprisonment to a term of supervision; or
E. Payment during the term of supervised release
will commence within (e.g., 30 or 60 days)
after release from imprisonment. The court will set
the payment plan based on an assessment of the
defendant’s ability to pay at that time; or
F. Special instructions regarding the payment of
criminal monetary penalties:
All criminal monetar y penalties are due
immediately and payable through the Clerk, U.S.
District Court. Having assessed the defendant’s
ability to pay, payment of the total criminal
46a
Appendix C
monetary penalties shall be paid in equal
monthly installments of $10 or ten percent of his
net monthly income, whichever is greater. The
defendant shall pay any financial penalty that
is imposed by this judgment and that remains
unpaid at the commencement of the term of
supervised release.
Unless the court has expressly ordered otherwise, if this
judgment imposes imprisonment, payment of criminal
monetary penalties is due during imprisonment. All
criminal monetary penalties, except those payments
made through the Federal Bureau of Prisons’ Inmate
Financial Responsibility Program, are made to the clerk
of the court.
The defendant shall receive credit for all payments
previously made toward any criminal monetary penalties
imposed.
Joint and Several
Defendant and Co-Defendant Names and Case
Numbers (including defendant number), Total Amount,
Joint and Several Amount, and corresponding payee, if
appropriate.
The defendant shall pay the cost of prosecution.
The defendant shall pay the following court cost(s):
The defendant shall forfeit the defendant’s interest
in the following property to the United States: An
Anderson Manufacturing AR-15 rifle, bearing serial
number 20318514, and all ammunition seized therewith.
47a
Appendix C
Payments shall be applied in the following order:
(1) assessment, (2) restitution principal, (3) restitution
interest, (4) fine principal, (5) fine interest, (6) community
restitution, (7) penalties, and (8) costs, including cost of
prosecution and court costs.
48a
Appendix
D
APPENDIX
D — STATUTORY
PROVISIONS INVOLVED
18 U.S.C. § 3571
§3571.
Sentence of fine
(a) In General.—A defendant who has been found
guilty of an offense may be sentenced to pay a fine.
(b) Fines for Individuals.—Except as provided in
subsection (e) of this section, an individual who has been
found guilty of an offense may be fined not more than the
greatest of—
(1) the amount specified in the law setting forth
the offense;
(2) the applicable amount under subsection (d)
of this section;
(3)
for a felony, not more than $250,000;
(4) for a misdemeanor resulting in death, not
more than $250,000;
(5) for a Class A misdemeanor that does not
result in death, not more than $100,000;
(6) for a Class B or C misdemeanor that does not
result in death, not more than $5,000; or
(7)
for an infraction, not more than $5,000.
49a
Appendix D
(c) Fines for Organizations.—Except as provided
in subsection (e) of this section, an organization that has
been found guilty of an offense may be fined not more
than the greatest of—
(1) the amount specified in the law setting forth
the offense;
(2) the applicable amount under subsection (d)
of this section;
(3)
for a felony, not more than $500,000;
(4) for a misdemeanor resulting in death, not
more than $500,000;
(5) for a Class A misdemeanor that does not
result in death, not more than $200,000;
(6) for a Class B or C misdemeanor that does not
result in death, not more than $10,000; and
(7)
for an infraction, not more than $10,000.
(d) A lternative Fine Based on Gain or Loss.—If
any person derives pecuniary gain from the offense, or
if the offense results in pecuniary loss to a person other
than the defendant, the defendant may be fined not more
than the greater of twice the gross gain or twice the gross
loss, unless imposition of a fine under this subsection would
unduly complicate or prolong the sentencing process.
50a
Appendix D
(e) S peci a l R u le for L ow er F ine S pecified
in Substantive P rovision.—If a law setting forth an
offense specifies no fine or a fine that is lower than the
fine otherwise applicable under this section and such
law, by specific reference, exempts the offense from the
applicability of the fine otherwise applicable under this
section, the defendant may not be fined more than the
amount specified in the law setting forth the offense.
51a
Appendix D
26 U.S.C. § 5841
§5841.
(a)
Registration of firearms
Central registry
The Secretary shall maintain a central registry of
all firearms in the United States which are not in the
possession or under the control of the United States.
This registry shall be known as the National Firearms
Registration and Transfer Record. The registry shall
include—
(1)
identification of the firearm;
(2)
date of registration; and
(3) identification and address of person entitled
to possession of the firearm.
(b)
By whom registered
Each manufacturer, importer, and maker shall
register each firearm he manufactures, imports, or
makes. Each firearm transferred shall be registered to
the transferee by the transferor.
(c)
How registered
Each manufacturer shall notify the Secretary of
the manufacture of a firearm in such manner as may by
regulations be prescribed and such notification shall effect
52a
Appendix D
the registration of the firearm required by this section.
Each importer, maker, and transferor of a firearm shall,
prior to importing, making, or transferring a firearm,
obtain authorization in such manner as required by this
chapter or regulations issued thereunder to import, make,
or transfer the firearm, and such authorization shall effect
the registration of the firearm required by this section.
(d)
Firearms registered on effective date of this Act
A person shown as possessing a firearm by the records
maintained by the Secretary pursuant to the National
Firearms Act in force on the day immediately prior to
the effective date of the National Firearms Act of 1968
shall be considered to have registered under this section
the firearms in his possession which are disclosed by that
record as being in his possession.
(e)
Proof of registration
A person possessing a firearm registered as required
by this section shall retain proof of registration which shall
be made available to the Secretary upon request.
53a
Appendix D
26 U.S.C. § 5845
§5845.
Definitions
For the purpose of this chapter—
(a)
Firearm
The term “firearm” means (1) a shotgun having a
barrel or barrels of less than 18 inches in length; (2) a
weapon made from a shotgun if such weapon as modified
has an overall length of less than 26 inches or a barrel or
barrels of less than 18 inches in length; (3) a rifle having
a barrel or barrels of less than 16 inches in length; (4)
a weapon made from a rifle if such weapon as modified
has an overall length of less than 26 inches or a barrel
or barrels of less than 16 inches in length; (5) any other
weapon, as defined in subsection (e); (6) a machine gun; (7)
any silencer (as defined in section 921 of title 18, United
States Code); and (8) a destructive device. The term
“firearm” shall not include an antique firearm or any
device (other than a machinegun or destructive device)
which, although designed as a weapon,the Secretary finds
by reason of the date of its manufacture, value, design,
and other characteristics is primarily a collector’s item
and is not likely to be used as a weapon.
(b)
Machinegun
The term “machinegun” means any weapon which
shoots, is designed to shoot, or can be readily restored
to shoot, automatically more than one shot, without
54a
Appendix D
manual reloading, by a single function of the trigger.
The term shall also include the frame or receiver of any
such weapon, any part designed and intended solely and
exclusively, or combination of parts designed and intended,
for use in converting a weapon into a machinegun, and
any combinationof parts from which a machinegun can
be assembled if such parts are in the possession or under
the control of a person.
(c)
Rifle
The term “rif le” means a weapon designed or
redesigned, made or remade, and intended to be fired
from the shoulder and designed or redesigned and made
or remade to use the energy of the explosive in a fixed
cartridge to fire only a single projectile through a rifled
bore for each single pull of the trigger, and shall include
any such weapon which may be readily restored to fire a
fixed cartridge.
(d)
Shotgun
The term “shotgun” means a weapon designed or
redesigned, made or remade, and intended to be fired
from the shoulder and designed or redesigned and made
or remade to use the energy of the explosive in a fixed
shotgun shell to fire through a smooth bore either a
number of projectiles (ball shot) or a single projectile for
each pull of the trigger, and shall include any such weapon
which may be readily restored to fire a fixed shotgun shell.
55a
Appendix D
(e)
Any other weapon
The term “any other weapon” means any weapon
or device capable of being concealed on the person from
which a shot can be discharged through the energy of
an explosive, a pistol or revolver having a barrel with a
smooth bore designed or redesigned to fire a fixed shotgun
shell, weapons with combination shotgun and rifle barrels
12 inches or more, less than 18 inches in length, from which
only a single discharge can be made from either barrel
without manual reloading, and shall include any such
weapon which may be readily restored to fire. Such term
shall not include a pistol or a revolver having a rifled bore,
or rifled bores, or weapons designed, made, or intended to
be fired from the shoulder and not capable of firing fixed
ammunition.
(f)
Destructive device
The term “destructive device” means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket
having a propellent charge of more than four ounces,
(D) missile having an explosive or incendiary charge of
more than one-quarter ounce, (E) mine, or (F) similar
device; (2) any type of weapon by whatever name known
which will, or which may be readily converted to, expel a
projectile by the action of an explosive or other propellant,
the barrel or barrels of which have a bore of more than
one-half inch in diameter, except a shotgun or shotgun
shell which the Secretary finds is generally recognized
as particularly suitable for sporting purposes; and (3)
any combination of parts either designed or intended for
56a
Appendix D
use in converting any device into a destructive device as
defined in subparagraphs (1) and (2) and from which a
destructive device may be readily assembled. The term
“destructive device” shall not include any device which is
neither designed nor redesigned for use as a weapon; any
device, although originally designed for use as a weapon,
which is redesigned for use as a signaling, pyrotechnic,
line throwing, safety, or similar device; surplus ordnance
sold, loaned, or given by the Secretary of the Army
pursuant to the provisions of section 7684(2),7685, or 7686
of title 10, United States Code; or any other device which
the Secretary finds is not likely to be used as a weapon,
or is an antique or is a rifle which the owner intends to
use solely for sporting purposes.
(g)
Antique firearm
The term “antique firearm” means any firearm
not designed or redesigned for using rim fire or
conventional center fire ignition with fixed ammunition and
manufactured in or before 1898 (including any matchlock,
flintlock, percussion cap, or similar type of ignition system
or replica thereof, whether actually manufactured before
or after the year 1898) and also any firearm using fixed
ammunition manufactured in or before 1898, for which
ammunition is no longer manufactured in the United
States and is not readily available in the ordinary channels
of commercial trade.
57a
Appendix D
(h)
Unserviceable firearm
The term “unserviceable firearm” means a firearm
which is incapable of discharging a shot by means of an
explosive and incapable of being readily restored to a
firing condition.
(i)
Make
The term “make”, and the various derivatives of such
word, shall include manufacturing (other than by one
qualified to engage in such business under this chapter),
putting together, altering, any combination of these, or
otherwise producing a firearm.
(j)
Transfer
The term “transfer” and the various derivatives of
such word, shall include selling, assigning, pledging,
leasing, loaning, giving away, or otherwise disposing of.
(k)
Dealer
T he t er m “dea ler ” means any person, not a
manufacturer or importer, engaged in the business of
selling, renting, leasing, or loaning firearms and shall
include pawnbrokers who accept firearms as collateral
for loans.
58a
Appendix D
(l)
Importer
The term “importer” means any person who is
engaged in the business of importing or bringing firearms
into the United States.
(m)
Manufacturer
The term “manufacturer” means any person who is
engaged in the business of manufacturing firearms.
59a
Appendix D
26 U.S.C. § 5861
§5861.
Prohibited acts
It shall be unlawful for any person—
(a) to engage in business as a manufacturer or
importer of, or dealer in, firearms without having paid
the special (occupational) tax required by section 5801 for
his business or having registered as required by section
5802; or
(b) to receive or possess a firearm transferred to
him in violation of the provisions of this chapter; or
(c) to receive or possess a firearm made in violation
of the provisions of this chapter; or
(d) to receive or possess a firearm which is not
registered to him in the National Firearms Registration
and Transfer Record; or
(e) to transfer a firearm in violation of the provisions
of this chapter; or
(f) to make a firearm in violation of the provisions
of this chapter; or
(g) to obliterate, remove, change, or alter the serial
number or other identification of a firearm required by
this chapter; or
60a
Appendix D
(h) to receive or possess a firearm having the serial
number or other identification required by this chapter
obliterated, removed, changed, or altered; or
(i) to receive or possess a firearm which is not
identified by a serial number as required by this chapter;
or
(j) to transport, deliver, or receive any firearm in
interstate commerce which has not been registered as
required by this chapter; or
(k) to receive or possess a firearm which has been
imported or brought into the United States in violation
of section 5844; or
(l) to make, or cause the making of, a false entry on
any application, return, or record required by this chapter,
knowing such entry to be false.
61a
Appendix D
26 U.S.C. § 5871
§5871.
Penalties
Any person who violates or fails to comply with any
provision of this chapter shall, upon conviction, be fined
not more than $10,000, or be imprisoned not more than
ten years, or both.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.