Petition for Writ of Certiorari — Jamond M. Rush, Petitioner v. United States

Supreme Court briefJun 6, 2025

Ask Donna

What actually matters in this document.

Text

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.