Amicus Curiae Brief — Cutberto Viramontes, et al., Petitioners v. Cook County, Illinois, et al.

Supreme Court briefAug 27, 2026

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Nos. 25-238, 25-566

In the

Supreme Court of the United States

CUTBERTO VIRAMONTES, ET AL.,

Petitioners,

COOK COUNTY, ILLINOIS, ET AL.,

Respondents.

EDDIE GRANT, JR., ET AL.,

Petitioners,

RONNELL HIGGINS, ET AL.,

Respondents.

_________________________________________________

On Writ of Certiorari to the U.S. Courts of Appeals

for the Seventh Circuit and the Second Circuit

_____________________________________________

BRIEF AMICUS CURIAE OF

G. ANTAEUS B. EDELSOHN

IN SUPPORT OF PETITIONERS

_____________________________________________

G. ANTAEUS B. EDELSOHN

Counsel of Record

460 Center Street, Unit 6045

Moraga, CA 94570

(202) 770-1655

Antaeus.Edelsohn.Law@gmail.com

August 27, 2026

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... iii

IDENTITY AND INTEREST OF AMICUS CURIAE .. 1

SUMMARY OF ARGUMENT...................................... 2

ARGUMENT ............................................................... 4

I. Modern semiautomatic rifles, like the AR-15,

are specifically within the ambit of the text of the

Second Amendment. .................................................. 4

A. The Court has recognized the prefatory

language of the Second Amendment emphasizes

the military nature and purpose as part of the

rationale for which the right the bear arms

sought to grant protection. .................................... 7

B. The Constitution, American military history,

federal law, and state corollaries of such laws,

emphasize the relevance of this militia pedigree

of the Second Amendment................................... 11

Constitution........................................................ 11

Federal law and state corollaries ..................... 13

Military history .................................................. 16

C. The government has a long history of not only

supporting private ownership of rifles relevant

to militia or military duty, but has specifically

encouraged it for over 120 years in the

promotion of civilian marksmanship. ................ 20

II. Modern semiautomatic weapons, like the AR15, are easily distinguishable from the

classes/types of weapons which this Court has held

are not protected in Miller and Heller. .................. 25

A. Miller and Heller restrictions on “dangerous and

unusual weapons” should properly be read to

mean weapons which would be outside those

which a person called for militia duty would be

expected to bring. ................................................. 26

Dangerous and unusual .................................... 26

Militia weapons .................................................. 29

D. The manner in which semiautomatic weapons

are utilized, compared to fully automatic

weapons, emphatically reinforces the distinction

between them, and the types of weapons

delineated by Miller and Heller. ......................... 30

E. Proponents

bans

against

modern

semiautomatic weapons rely on misleading

arguments involving tort theories of dangerous

activities or inapposite comparisons to

limitations on speech. .......................................... 32

Tort theories ....................................................... 32

Free speech ......................................................... 34

III. The

Second

Amendment

contemplates

technological advances and specifically includes

technology which is current in a given era. ........... 35

CONCLUSION .......................................................... 38

iii

TABLE OF AUTHORITIES

Cases ................................................................. Page(s)

Bianchi v. Brown,

111 F. 4th 438 (4th Cir. 2024) .................................. 28

Caetano v. Mass.,

577 U.S. 411 (2016).................................................... 22

Carpenter v. United States,

585 U.S. 296 (2018).................................................... 32

Chatrie v. United States,

146 S. Ct. 2193 (2026) ......................................... 31, 32

District of Columbia v. Heller,

554 U.S. 570 (2008)..............................3, 7, 8, 9, 22, 25

F.J. Vollmer Co. v. Higgins,

23 F.3d 448 (D.C. Cir. 1994) ..................................... 23

Fitzsimmons & Connell Co. v. Braun,

199 Ill. 390 (1902) ...................................................... 28

Garland v. Cargill,

602 U.S. 406 (2024).................................................... 23

Matal v. Tam,

582 U.S. 218, 246 (2017) ........................................... 29

McDonald v. City of Chicago,

561 U.S. 742 (2010)...................................................... 8

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

597 U.S. 1 (2022)........................................................ 29

Southern Cotton Oil Co. v. Anderson,

80 Fla. 441 (1920) ...................................................... 28

United States v. Miller,

307 U.S. 174 (1939)....................... 3, 4, 5, 6, 7, 8, 9, 25

United States v. One TRW, Model M14,

7.62 Caliber Rifle,

294 F.Supp. 2d 896 (2003) ........................................ 24

United States v. One U.S. (TRW) 7.62mm M-14 Nat'l

Match Rifle, Serial No. 1453711,

No. C-3-78-125, 1980 WL 95647,

(S.D. Ohio May 20, 1980) .......................................... 24

Statutes

10 U.S.C. § 4038(5) (1952 Supp. IV 1957) ................... 26

10 U.S.C. §§ 246–47 ....................................................... 17

10 U.S.C. §§ 4307 et seq. (1952 Supp. IV 1957) .......... 26

18 U.S.C. § 921(a)(4) ...................................................... 33

18 U.S.C. § 922(o) .......................................................... 30

20 ILL. COMP. STAT. 1805/1 and /2................................. 17

26 U.S.C. § 5845(b) .................................................. 30, 31

32 U.S.C. § 181(d) (1925) .............................................. 26

32 U.S.C. §§ 181 et seq. (1925) ..................................... 26

36 U.S.C. §§ 40701 et seq (2024) .................................. 26

ACT OF APRIL 10, 1812, ch. 55,

1 Stat. 705–07 (1812)................................................. 18

ACT OF AUG. 29, 1916, ch. 418,

39 Stat. 619, 643 and 648 (1916) .............................. 25

ACT OF FEB. 28, 1795, ch. 36, 1 Stat. 424 (1795) ......... 15

ACT OF FEB. 6, 1812, ch. 21, 1 Stat. 676–77 (1812) ..... 18

ACT OF JULY 6, 1812, ch. 138,

1 Stat. 785–86 (1812)................................................. 18

ACT OF JUNE 29, 1993, Public Act No. 93-306,

1993 Conn. Acts 824 .................................................... 6

ACT OF JUNE 3, 1916, ch. 134, § 54,

39 Stat. 166, 194 (1916) ............................................ 25

ACT OF MAR. 2, 1903, ch. 975, 32 Stat. 927 (1903) ...... 24

ACT OF MAY 2, 1792, ch. 28, 1 Stat. 264 (1792) ........... 14

ACT OF MAY 27, 1908, ch. 204, § 20,

35 Stat. 399 (1908) ..................................................... 25

ACT OF MAY 8, 1792, ch. 33, 1 Stat. 271 (1792) ..... 14, 15

ACT OF SEPT. 29, 1789, ch. 25, 1 Stat. 95 (1789) ......... 13

AN ACT ADDRESSING GUN VIOLENCE,

Public Act No. 23-53, 2023 Conn. Acts 1 ................... 6

AN ACT FOR THE REGULATION OF THE MILITIA OF THE

COMMONWEALTH OF PENNSYLVANIA § 5,

1793 Pa. Laws 457 (1793) ......................................... 15

AN ACT TO ORGANIZE THE MILITIA OF THIS STATE § 14,

1798 R.I. Pub. Laws 436 (1798) ................................ 15

AN ACT TO REVISE AND AMEND THE MILITIA LAWS, ch.

28, part I (1800) ......................................................... 15

AN ACT, FOR REGULATING AND GOVERNING THE MILITIA

OF THIS STATE § 17,

1818 Vt. Laws 19 (1819) ............................................ 16

CALLING FORTH ADDITIONAL VOLUNTEERS TO SERVE IN

THE WAR WITH SPAIN, Proclamation No. 415, 30

Stat. 1772 (1898) ........................................................ 19

CALLING FORTH VOLUNTEERS TO SERVE IN THE WAR

WITH SPAIN, Proclamation No. 412,

30 Stat. 1770 (1898)................................................... 19

CONN. GEN. STAT. § 27-2 ................................................ 17

CONN. GEN. STAT. § 53-202a et seq. (2025) .................... 6

COOK COUNTY, ILL., CODE ch. 54, art. III,

div. 4 (2025) .................................................................. 5

GUN CONTROL ACT, Pub. L. No. 90-618,

82 Stat. 1213 (1968)................................................... 31

MILITIA ACT OF 1903, Pub. L. No. 57-33,

32 Stat. 775, § 1 (1903) ........................................ 16, 17

NEB. REV. STAT. § 412.026............................................. 17

Pub. L. No. 84-1028, 70A Stat. 14, § 311 (1956) ......... 17

RESOLUTION OF SEPT. 25, 1789, 1 Stat. 97 (1789) ....... 13

Constitutional Provisions

U.S. CONST. amend. I, cl. 3............................................ 38

U.S. CONST. amend. II. .................................................... 7

U.S. CONST. amend. IV .................................................. 41

U.S. CONST. art. I, § 8 ...................................................... 4

U.S. CONST. art. I, § 8, cl. 12 ......................................... 11

U.S. CONST. art. I, § 8, cl. 15 ......................................... 12

U.S. CONST. art. I, § 8, cl. 16 ......................................... 12

U.S. CONST. art. V.......................................................... 42

Governmental Materials

33 CONG. REC. H2278 (Feb. 26, 1900) .......................... 20

52 CONG. REC. S128 (Dec. 11, 1914) ............................. 20

ARMY REG. NO. 920-25, RIFLES, M14M AND M14NM,

FOR CIVILIAN MARKSMANSHIP USE (1965) ................ 31

Presidential Proclamation, Aug. 7, 1794,

4 ANNALS OF CONG. 1412–13 (1794) ......................... 18

U.S. DEP'T OF THE ARMY, ARMY TECHNIQUE

PUBLICATION NO. 3-21.8, THE INFANTRY RIFLE

PLATOON AND SQUAD

at 1-13 and 1-14 (2025 ed.) .................................. 34, 35

U.S. DEP’T OF THE ARMY, GEN. ORDER

NO. 61 (1903) ........................................................ 24, 25

WAR DEPARTMENT ANNUAL REPORTS,

1917 V. I (1918) ........................................................... 26

Other Authorities

Ashley Hlebinsky, History of Multi-Shot and

Repeating Firearms, Part 1: 1400-1791 – Earliest

Repeaters, U. WYO. FIREARMS RES. CTR.

(Aug. 6, 2026),

https://firearmsresearchcenter.org/forum/historyof-multi-shot-and-repeating-firearms-part-1-14001791-earliest-repeaters/ ............................................ 30

Aslhey Dugan, CMP’s National Matches

Educational Clinics offer something for everyone,

BEACON (July 9, 2024),

https://www.thebeacon.net/cmps-nationalmatches-educational-clinics-offer-something-foreveryone/ ..................................................................... 21

Brian DeLay, The Myth of Continuity in American

Gun Culture, 113 CALIF. L. REV. 1 (2025) ................ 31

vii

Daniel Terrill, CMP approved to sell more than

100,000 surplus M14 rifles, MILITARY TIMES

(Aug. 10, 2026),

https://www.militarytimes.com/industry/techwatch

/2026/08/10/cmp-approved-to-sell-more-than100000-surplus-m14-rifles/ ....................................... 21

Dick Jones & Serena Juchnowski, Excellence in

Competition Rifle: Then and Now, SHOOTING

SPORTS USA (June 17, 2020),

https://www.ssusa.org/articles/2020/6/17/excellence

-in-competition-rifle-then-and-now .......................... 21

EMORY UPTON, THE MILITARY POLICY OF THE

UNITED STATES (4th ed. 1917) ................................... 16

Flashback Friday: “Uncle Sam’s Sharpshooters”:

Military Marksmanship at Fort Omaha and

Bellevue, 1882-1894, NEB. ST. HIST. SOC'Y,

https://history.nebraska.gov/flashback-fridayuncle-sams-sharpshooters-militarymarksmanship-at-fort-omaha-and-bellevue-18821894/b (last visited Aug. 13, 2026) ........................... 18

George du Maurier, Edison's Telephonoscope

(Transmits Light as Well as Sound), in PUNCH'S

ALMANACK FOR 1879 (1878) ....................................... 31

HERBERT H. SARGENT, THE CAMPAIGN OF SANTIAGO DE

CUBA (1907) ................................................................ 16

Herman Hattaway, The Civil War Armies: Creation,

Mobilization, and Development, in ON THE ROAD TO

TOTAL WAR THE AMERICAN CIVIL WAR AND THE

GERMAN WARS OF UNIFICATION, 1861–1871

(Stig Förster & Jörg Nagler eds.,1997) .................... 15

JOHN A. FAIRLIE, THE NATIONAL ADMINISTRATION OF

THE UNITED STATES (1922) ........................................ 15

JOHN POMEROY, AN INTRODUCTION TO THE

CONSTITUTIONAL LAW OF THE UNITED STATES § 239

(9th ed. 1886) (1868))................................................... 8

viii

Judge Gregory E. Maggs & Robert Leider, The Armies

Clause, in THE

HERITAGE

GUIDE

THE

CONSTITUTION (Josh Blackman & John G. Malcolm

eds., 3d ed. 2025)........................................................ 10

Miguel Ortiz, JFK’s M1 Garand sold for nearly

$150,000, WE ARE THE MIGHTY (Nov. 14, 2024),

https://www.wearethemighty.com/militarynews/jfks-m1-garand-sold-for-nearly-150000/ ........ 20

Proclamation, 7 August 1794, NAT’L ARCHIVES,

https://founders.archives.gov/documents/Washingt

on/05-16-02-0365 (last visited Aug. 18, 2026) ......... 14

REPORT OF THE COMMISSION APPOINTED BY THE

PRESIDENT TO INVESTIGATE THE CONDUCT OF THE

WAR DEPARTMENT IN THE WAR WITH SPAIN VOL. 1, S.

DOC. NO. 56-221 (1900) .................................. 16, 17, 18

RESTATEMENT (THIRD) OF TORTS § 20(B)(1)

(AM. LAW INST. 2010) ................................................. 28

RUSSELL F. WEIGLEY, HISTORY OF THE UNITED STATES

ARMY (1967)................................................................ 18

See Today in History – September 29, LIBRARY OF

CONG.,

https://www.loc.gov/item/today-inhistory/september-29/)............................................... 11

The Bill of Rights: A Transcription, NAT. ARCHIVES,

https://www.archives.gov/founding-docs/bill-ofrights-transcript (last visited Aug. 10, 2026).......... 11

THE FEDERALIST NO. 25 (Alexander Hamilton) .......... 11

THE FEDERALIST NO. 46 (James Madison) ................... 10

THEODORE ROOSEVELT, THE ROUGH RIDERS (1899) .... 16

Case Materials

Brief of Defendants-Appellees, Grant v. Lamont, No.

23-1344 (2d Cir. May 2, 2024), Docket # 48 .............. 6

Def. Exhibit # 60, Rupp v. Bonta, No. 17-cv-00746

(C.D. Cal. May 26, 2023), Docket # 151-14.............. 40

Memorandum in support of Motion for Summary

Judgment, Viramontes v. Cook County, No. 1:21-cv04595 (N.D. Ill. Aug 27, 2021), Docket # 82 ........ 5, 36

Transcript of Oral Argument at 34, Trump v. Barbara,

146 S. Ct. 2438 (No. 25-365) ..................................... 22

IDENTITY AND INTEREST OF AMICUS

CURIAE

G. Antaeus B. Edelsohn respectfully

submits this brief in support of Petitioners.1 Mr.

Edelsohn is a licensed attorney in California,

Vermont, and the District of Columbia. As an

officer of the court in multiple U.S. jurisdictions,

Mr. Edelsohn has a keen interest in the rule of

law, and the preservation of the rights, freedoms,

and liberties enshrined in the Constitution. As

the foundation of the American experiment in

democracy, the Constitution serves as more than

just a framework for the branches and duties of

the federal government, it acts as the guarantor

of certain fundamental and inalienable rights,

universally applicable across this nation.

Mr. Edelsohn is also currently an LLM

candidate at the University of Virginia School of

Law focusing on Constitutional Law. While these

cases concern weapons and the Second

Amendment, Mr. Edelsohn harbors serious

concerns about the potential ramifications and

legal ripple effects for other rights ostensibly

guaranteed by the Constitution, should

Petitioners be unsuccessful. Specifically, he fears

any arguments which might successfully curtail

In accordance with Rule 37.6, no counsel for a party

authored this brief in whole or in part, and no person other

than amicus curiae made a monetary contribution to its

preparation or submission.

the scope of rights covered by the plain text of the

Constitution and Second Amendment could

naturally be applied to constrain and limit other

enumerated rights and freedoms, far beyond how

we presently perceive them.

Given both the legal and social implications

of the matter at issue in these cases, Mr. Edelsohn

felt a personal ethical obligation to take a stand

on behalf of the U.S. Constitution and the rights

of the American people. While sympathetic to the

earnest sentiments of those concerned about

violence due to weapons, Mr. Edelsohn believes

any change in clearly enumerated Constitutional

rights must come from amendments to the

document itself, and not result from state or local

legislation seeking to pull an end-around.

SUMMARY OF ARGUMENT

The Second Amendment states “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.” Despite the

expansive language used, some states and

localities, like Cook County, Illinois, and the State

of Connecticut, believe the scope of rights

protected extend only to personal defense, and

specifically seek to ban firearms which they

believe are not reasonable for such purposes. In

this Brief, Amicus argues such positions are

fundamentally unsound, running contrary to the

language and meaning of both the Constitution

and established Supreme Court precedent.

Amicus believes the challenged municipal and

state codes banning semiautomatic rifles, like the

AR-15, are unconstitutional and argues in favor of

Petitioners, asking the Court to reverse the

rulings of the Seventh and Second Circuit Courts.

This Brief looks first at the text, history,

and meaning of both the Second Amendment and

Article I of the Constitution. The texts of both

intentionally use language addressing the militia

of the United States, which is comprised of ‘the

People.’ A review of Supreme Court precedent

shows there is ample caselaw on point, addressing

the importance of these references to the militia,

including United States v. Miller, and District of

Columbia v. Heller. Miller emphasized the

Second Amendment protections apply to weapons

relevant to militia service, with an exception for

dangerous or unusual weapons outside what a

militiaman might be reasonably expected to

provide. Heller reaffirmed the martial origin of

the Second Amendment while also recognizing an

individual right to armed self-defense. This Brief

also reviews the history and historical role of the

militia and volunteer forces and addressees the

century-long effort by the government to promote

and encourage individual civilian marksmanship.

Amicus argues modern semiautomatic rifles, like

the AR-15, fall squarely within such a recognized

purpose and should therefore be protected by the

Second Amendment.

This

Brief

then

distinguishes

semiautomatic arms from machineguns or other

dangerous and unusual weapons, arguing that

because of the clear technical distinctions,

semiautomatic arms are presumptively within

the Second Amendment’s scope.

Finally this Brief argues constitutional

protections

enumerated

rights

must

accommodate technological advancement, and

that protections extend to the relevant technology

in existence when such rights are exercised,

including semiautomatic rifles.

ARGUMENT

Modern semiautomatic rifles, like the AR15, are specifically within the ambit of the text of

the Second Amendment.

In 1939 the Court determined short-barrel

shotguns were not protected under the Second

Amendment because there lacked any evidence

such weapons had “some reasonable relationship

to the preservation or efficiency of a well

regulated militia,” that such shotguns were “any

part of the ordinary military equipment, or that

[their] use could contribute to the common

defense.” United States v. Miller, 307 U.S. 174,

178 (1939). The Court explained the significance

of this observation and understanding by basing

its analysis of the Second Amendment in Section

8 of Article 1 of the Constitution, which

enumerates Congressional powers vis-à-vis the

militia:

The Constitution as originally adopted

granted to the Congress power—“To

provide for calling forth the Militia to

execute the Laws of the Union, suppress

Insurrections and repel Invasions; To

provide for organizing, arming, and

disciplining, the Militia, and for

governing such Part of them as may be

employed in the Service of the United

States, reserving to the States

respectively, the Appointment of the

Officers, and the Authority of training

the Militia according to the discipline

prescribed by Congress.” With obvious

purpose to assure the continuation and

render possible the effectiveness of such

forces the declaration and guarantee of

the Second Amendment were made. It

must be interpreted and applied with

that end in view. Miller, at 178.

In 2006 Cook County, Illinois, passed the

Blair Holt Assault Weapons Ban, presently

codified at COOK COUNTY, ILL., CODE ch. 54, art.

III, div. 4 (2025), which explicitly bans a

considerable number of weapons by aggregate

features, if not explicitly by name, including

semiautomatic rifles like the AR-15. Id. at § 54211–212. In defending the ordinance against

Petitioner Viramontes, Cook County asserts the

banned weapons, including AR-15s, are not

“arms” under the Second Amendment, because

they “do not facilitate armed self-defense,”2

essentially asserting only defensive-centric

weapons receive Second Amendment protections.

In 1993, Connecticut passed as an “Assault

Weapons Ban” (AWB), Act of June 29, 1993,

Public Act No. 93-306, 1993 Conn. Acts 824, and

updated it in 2023, An Act Addressing Gun

Violence, Public Act No. 23-53, 2023 Conn. Acts 1,

codified at CONN. GEN. STAT. § 53-202a et seq.

(2025). This law also explicitly bans weapons by

aggregate features, if not explicitly by name,

including semiautomatic rifles like the AR-15. In

defending the statute against Petitioner Grant,

Connecticut likewise argues semiautomatic rifles,

like the AR-15, are not “arms” under the Second

Amendment, because they are “useful not for selfdefense but for . . . offensive combat.” 3

Connecticut goes even further, arguing the

Second Amendment “protects only keeping and

carrying arms for self-defense.”4

Memorandum in support of Motion for Summary

Judgment, Viramontes v. Cook County, No. 1:21-cv-04595

(N.D. Ill. Aug 27, 2021), Docket # 82, at 5 (citations

omitted) (hereinafter Docket # 82).

3 Brief of Defendants-Appellees, Grant v. Lamont, No. 231344 (2d Cir. May 2, 2024), Docket # 48, at 18.

4 Id. at 22.

Putting aside any arguments explaining just

how useful a weapon like an AR-15 can be for

legal personal defense of one’s person and home,

or for lawful purposes of hunting or varmint

control, Cook County and Connecticut clearly

base their entire positions on the flawed

argument that the purpose of the Second

Amendment

only

personal

selfdefense/protection. This understanding simply

does not square with the text of the Constitution,

including the Second Amendment, nor with the

Court’s precedent in Miller. Accordingly, the

rulings of the Seventh and Second Circuits, which

supported such incorrect interpretation, should

be overturned.

A. The Court has recognized the prefatory

language of the Second Amendment

emphasizes the military nature and purpose as

part of the rationale for which the right the

bear arms sought to grant protection.

The prefatory language of the Second

Amendment emphasizes the military nature and

purpose for which the right the bear arms sought

to grant protection. The Amendment states: “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.” 5 As

noted, supra, the Court has already recognized

the martial provenance and foundation of the

5 U.S. CONST. amend. II.

Second Amendment in United States v. Miller,

307 U.S. 174 (1939) even if it did not conduct a

comprehensive review of that amendment and the

rights granted by it. The Court’s more recent gun

cases addressing questions regarding the

ancillary, though no less important, aspect of selfdefense rights under the Second Amendment, do

not alter this. In District of Columbia v. Heller ,

554 U.S. 570 (2008), Justice Scalia recognized

“[t]he Second Amendment is naturally divided

into two parts: its prefatory clause and its

operative clause,” explaining “[t]he former does

not limit the latter grammatically, but rather

announces a purpose.” Heller, at 577. While the

Court made clear the Second Amendment

included an “inherent right of self-defense,”6

which it described as an “individual right

unconnected to militia service,” 7 it also clearly

stated “[l]ogic demands that there be a link

between the stated purpose and the command.”8

Heller’s extensive recitation of the history,

meaning, and purpose of “bearing arms” was to

emphasize the fact “bearing arms” was not merely

curtailed to the application of bearing arms in a

military role or purpose, but also extended to

applications outside of such roles: “It is clear from

those formulations that “bear arms” did not refer

only to carrying a weapon in an organized

Heller, at 628.

Id. at 612.

8 Id. at 577.

military unit.” Id, at 585 (emphasis added).

Nowhere in the Court’s opinion does it demean or

excise the martial side of the Second Amendment;

quite the contrary, as it chided the Dissent for

seeking to “protect[] only the right to possess and

carry a firearm in connection with militia

service.” Id, at 577. More notably, even the

Dissent acknowledged the Second Amendment

“protects the right to keep and bear arms for

certain military purposes.” Id, at 637 (Stevens, J.,

dissenting). Heller also favorably regarded 19th

century commentators which recognized the

martial reasons for the people to have access to

arms relevant for militia service: “[The purpose

of the Second Amendment is] to secure a wellarmed militia . . . . But a militia would be useless

unless the citizens were enabled to exercise

themselves in the use of warlike weapons.”

Heller, at 618 (citing JOHN POMEROY, AN

INTRODUCTION TO THE CONSTITUTIONAL LAW OF

THE UNITED STATES § 239, p. 157 (9th ed. 1886)

(1868)).

Shortly after its decision in Heller, the

Court reaffirmed its stance about the breadth of

rights guaranteed by the Second Amendment,

making clear such rights were not only valid

against the federal government, but against the

states as well in McDonald v. City of Chicago, 561

U.S. 742 (2010). Though the issue in McDonald

concerned municipal statutes as applied to

personal defense weapons, Justice Alito once

again explained “the codification of [the Second

Amendment] right was prompted by fear that the

Federal Government would disarm and thus

disable the militias, but we reject[] the suggestion

that the right was valued only as a means of

preserving the militias.” McDonald, at 787 (Alito,

J., Opinion). Again, a clear recognition of the

martial application of the amendment.

It is true neither Miller nor Heller endorse

a limitless right under the Second Amendment,

instead acknowledging its grant is “not a right to

keep and carry any weapon whatsoever in any

manner whatsoever and for whatever purpose.”

Heller, at 626. This is clarified as a prohibition on

the “carrying of dangerous and unusual

weapons,” Id, at 627 (internal citation omitted),

but notably not against arms with which a

member of a militia might be “expected to appear

. . . supplied by themselves and of the kind in

common use at the time.” Miller, at 179. Miller’s

application of the “common use” appellation does

not mean common use for limited recreational or

defensive purposes, but rather includes arms

which would be normally applicable for an

individual’s use in a militia or martial

application. Heller makes this clear stating, “[w]e

think that Miller’s ‘ordinary military equipment’

language must be read in tandem with what

comes after: ‘[O]rdinarily when called for [militia]

service [able-bodied] men were expected to appear

bearing arms supplied by themselves and of the

kind in common use at the time.’” Heller, at 624

(quoting Miller, at 179). With this understanding

of the purpose, a modern semiautomatic-only rifle

which has a similar, though not identical,

function and handling to modern infantry rifles is

clearly consonant with the Court’s precedent, and

well within the ambit of the Second Amendment

protections.

B. The Constitution, American military history,

federal law, and state corollaries of such laws,

emphasize the relevance of this militia pedigree of

the Second Amendment.

Constitution

The Constitution explicitly describes the

concurrent and sometimes overlapping nature of

the militia with a regular army in Section 8 of

Article I. Article I vests Congress with the power

to “raise and support Armies” as necessary, with

the provision that any appropriation therefore

could not extend “for a longer Term than two

Years,”9 in lieu of separately establishing a

permanent army. This reflects a pervasive fear at

the time of the founding that “a standing army

could lead to domestic tyranny.”10 Separately,

though in the same section, Congress is also

9 U.S. CONST. art. I, § 8, cl. 12.

10 Judge Gregory E. Maggs & Robert Leider,

Clause, in THE

The Armies

HERITAGE

GUIDE

THE

CONSTITUTION 207 (Josh Blackman & John G. Malcolm

eds., 3d ed. 2025).

granted the powers to “call[] forth the Militia to

execute the Laws of the Union, suppress

Insurrections and repel Invasions,”11 and “provide

for organizing, arming, and disciplining the

militia,”12 as necessary. The choice of different

language between the army clause and the militia

clauses indicates the distinct natures of how the

Framers’ conceived of both armies and militias.

The constitutional requirement for any armies to

be ‘raised and supported’ means Congressional

action is required to bring an army into existence,

and sustain its existence. This stands in direct

contrast to militias which impliedly exist

independent of Congressional action. Indeed,

prior to ratification of the Constitution, Federalist

No. 46 went to great lengths to explain how the

prospective government would not interrupt the

existence of a robust militia system whereby the

people would retain the “advantage of being

armed.”13 While suppressing insurrections or

repelling invasions are duties traditionally in the

bailiwick of regular armies, the fact those roles

can fall to militias, should Congress deem it

necessary, serves to emphasize the martial role

which militia can be called to fill. The Second

Amendment, and its grounding in the role of

11 U.S. CONST. art. I, § 8, cl. 15.

12 U.S. CONST. art. I, § 8, cl. 16.

13 THE FEDERALIST NO. 46 (James Madison).

militia service, should therefore

concurrently with this section.

read

Federal law and state corollaries

The Second Amendment is also notable in

its timing, as its passage in the Bill of Rights,

Resolution of Sept. 25, 1789, 1 Stat. 97 (1789),

coincides with the statutory adaptation of the

federal military forces in place under the Articles

of Confederation into the new framework of the

Constitution, Act of Sept. 29, 1789, ch. 25, 1 Stat.

95 (1789).14 The Founders were aware of the

value of a professional military force,

acknowledging the martial superiority of regular

forces over a comparable militia force, because

“[w]ar, like most other things, is a science to be

acquired and perfected by diligence, by

perseverance, by time, and by practice.” 15 The

desire to balance domestic and national security

needs such that the nation would not be

“incapacitated by its Constitution,” 16 while

empowering the citizens with a robust system of

14 Congress passed the Amendments via joint resolution on

September

25,

Transcription,

1789,

see The Bill of Rights: A

NAT.

ARCHIVES,

https://www.archives.gov/founding-docs/bill-of-rightstranscript (last visited Aug. 10, 2026), and the military

adaptation act on September 29, 1789. See Today in

History – September 29, LIBRARY OF CONG.,

https://www.loc.gov/item/today-in-history/september-29/

(last visited, Aug. 10, 2026).

15 THE FEDERALIST NO. 25 (Alexander Hamilton).

16 Id.

general armament, and state and local militias to

counter any danger posed by a standing federal

army, was clearly a focus. This focus persisted

into the Second Congress, with the passage of two

militia acts according to the Section 8 powers: the

Act of May 2, 1792, ch. 28, 1 Stat. 264 (1792),

which gave a two-year standing permission for

the President to call up the militias should the

need arise, and the Act of May 8, 1792, ch. 33, 1

Stat. 271 (1792), which set the requirements for

who was defined to be part of the militia, and

detailing the duties and obligations for what such

membership entailed. In 1795, the May 2 Act was

replaced by another militia act, which notably

removed the two-year standing permission and

granted an indefinite standing permission to call

up the militia. Act of Feb. 28, 1795, ch. 36, 1 Stat.

424 (1795). Of particular note, the Act of May 8

stipulated “every citizen, so enrolled [in the

militia] shall . . . provide himself with a good

musket or firelock, . . . or with a good rifle,” as well

as a minimum amount of ammunition and other

firearm-related materials, in addition to other

necessary supplies. 1 Stat. 271 (1792). Such

mandatory self-arming provisions were also

present in most of the states in the late 18th and

early 19th centuries, following the federal militia

act.17 The fact self-armament for militia purposes

E.g. Delaware, AN ACT FOR ESTABLISHING THE MILITIA

IN THIS STATE, ch. 36, § 4, 1793 Del. Laws 199, 202–04

(1793); Pennsylvania, AN ACT FOR THE REGULATION OF

was deemed so important as to be codified into

law only emphasizes the military pedigree of the

Second Amendment.

The idea of, and statutes regarding, militia

forces is not merely antiquated history, as many

supporters of AWBs often attempt to argue, but

continues in the present day. The modern

organizational system of the martial forces of the

United States was established by the Militia Act

of 1903, which refreshed the standard scope of

eligibility—viz. all able-bodied male citizens of

their respective states or territories, and ablebodied male foreigners who had declared an

intent to become American citizens, who are

between the ages of 18 to 45—and then notably

created two distinct classes of militia: the

“organized militia” and the “Reserve Militia.”18

The organized militia would consist of the

“regularly enlisted, organized, and uniformed

active militia in the several States and

Territories” which would thereafter be known as

“National Guard.”19 In contrast, the “Reserve

THE MILITIA OF THE COMMONWEALTH OF PENNSYLVANIA §

5, 1793 Pa. Laws 457 (1793); Rhode Island, AN ACT TO

ORGANIZE THE MILITIA OF THIS STATE § 14, 1798 R.I. Pub.

Laws 436 (1798); North Carolina, AN ACT TO REVISE AND

AMEND THE MILITIA LAWS, ch. 28, part I (1800); and

Vermont AN ACT, FOR REGULATING AND GOVERNING THE

MILITIA OF THIS STATE § 17, 1818 Vt. Laws 19 (1819).

18 MILITIA ACT OF 1903, Pub. L. No. 57-33, 32 Stat. 775, § 1

(1903).

19 Id. at § 3.

Militia” would consist of all those who constituted

the militia but were not members of the

“organized militia.”20

The current federal

statutes governing militia composition and

arrangement, 10 U.S.C. §§ 246–47, were enacted

in 1956, and changed the designation “Reserve

Militia” to “unorganized militia.”21 While no state

retains mandatory self-armament statutes, state

corollaries of current federal militia laws,

specifically regarding militia membership to

include unorganized or reserve militia, exist in

almost every state,22 containing roughly the same

general provisions: all able-bodied citizens, or

foreigners with a declared interest in becoming

citizens, between the ages of 18 to 45, who are not

otherwise disqualified, are deemed to be part of

the militia. E.g., CONN. GEN. STAT. § 27-2; 20 ILL.

COMP. STAT. 1805/1 and /2.

Under this

intentionally broad scope of who constitutes the

militia, protecting general access by members of

such militia to semiautomatic rifles is exactly the

purpose of the Second Amendment.

Military history

The United States also has a long history of

Congressional authorizations calling forth the

militia or volunteers under the Article I, Section

Id. at § 1.

21 Pub. L. No. 84-1028, 70A Stat. 14, § 311 (1956).

22 Delaware, Nevada, and Vermont are notable exceptions,

however Nevada allows volunteer military organizations to

be included in the militia. NEB. REV. STAT. § 412.026.

8 powers. Examples include: calling forth nearly

13,000 militia from Virginia, New Jersey,

Maryland, and Pennsylvania to suppress the

Whiskey

Rebellion

1794;23

repeated

authorizations regarding the War of 1812 to

accept volunteers into a Volunteer Military

Corps,24 and calling up militia forces,25 with some

records indicating traditional military forces

numbered 68,000 while 470,000 volunteer and

militiamen were mustered;26 the beginning of the

Civil War relied almost entirely on state militia

forces and large numbers of volunteer units until

Congress supplemented those forces with federal

draftees.27 One particularly notable example

includes the use the volunteer units in the

Spanish-American War.

In 1898, President

William McKinley made two proclamations, first

Presidential Proclamation, Aug. 7, 1794 , 4 ANNALS OF

CONG. 1412–13 (1794). Proclamation, 7 August 1794,

NAT’L

ARCHIVES,

https://founders.archives.gov/documents/Washington/0516-02-0365 (last visited Aug. 18, 2026).

24 Act of Feb. 6, 1812, ch. 21, 1 Stat. 676–77 (1812); Act of

July 6, 1812, ch. 138, 1 Stat. 785–86 (1812).

25 Act of April 10, 1812, ch. 55, 1 Stat. 705–07 (1812).

26 JOHN A. FAIRLIE, THE NATIONAL ADMINISTRATION OF

THE UNITED STATES 136 (1922).

27 See, e.g. Herman Hattaway, The Civil War Armies:

Creation, Mobilization, and Development, in ON THE ROAD

TO TOTAL WAR THE AMERICAN CIVIL WAR AND THE

GERMAN WARS OF UNIFICATION, 1861–1871, 173 (Stig

Förster & Jörg Nagler eds.,1997).

calling for 125,000 volunteers on April 23,28 and

then calling for 75,000 more on April 25.29 All

told, Congressional records indicate “223,235

militia or volunteers” were called up.30 At the

time of these proclamations, the U.S. military

only numbered between 59,000 and 73,000

regulars.31

Though the U.S. won the Spanish-American

War decisively, the manner in which the war was

conducted, including, logistics, organization,

training, etc. revealed deep flaws and deficiencies

throughout the defense system. Indeed, problems

with the militia and volunteer-dependent

organization of the nation’s military were known

back in the Civil War,32 but apropos the instant

case, in a post-war commission report, known as

the ‘Dodge Report,’ the government found “the

country unprepared with any large stock of arms,

CALLING FORTH VOLUNTEERS TO SERVE IN THE WAR

WITH SPAIN, Proclamation No. 412, 30 Stat. 1770 (1898).

29 CALLING FORTH ADDITIONAL VOLUNTEERS TO SERVE IN

THE WAR WITH SPAIN, Proclamation No. 415, 30 Stat. 1772

(1898).

30 52 CONG. REC. S128 (Dec. 11, 1914).

31 A House record from 1900 gives the 73,000 figure, 33

CONG. REC. H2278 (Feb. 26, 1900), but a later Senate

record from 1914 states the 59,000 figure, 52 CONG. REC.

S128 (Dec. 11, 1914).

32 EMORY UPTON, THE MILITARY POLICY OF THE UNITED

STATES 91 (4th ed. 1917).

ammunition . . . and equipments.” 33 One officer

noted there were only enough standard military

rifles to equip “the increased regular army and

about two thousand volunteers,” and “more than

two hundred thousand volunteers, had to be

furnished with [obsolescent] Springfield rifles,”

firing limited black powder rounds.34 In fact, not

only did the U.S. lack enough modern service

rifles to equip all the forces, but it could not

“manufacture them fast enough to supply the

demand.”35 It was not unheard of for volunteers

to bring their own arms, with which “they were

already thoroughly familiar.”36 Indeed, future

President Theodore Roosevelt’s volunteer force,

the 1st U.S. Volunteer Cavalry known as the

“Rough Riders,” was gifted two early Colt

Browning model 1895 machine-guns which they

brought to Cuba, at least one of which was gifted

to the regiment by a wealthy sergeant in the

unit.37

The American military of the modern era is

much more advanced and well-equipped than it

REPORT OF THE COMMISSION APPOINTED BY THE

PRESIDENT TO INVESTIGATE THE CONDUCT OF THE WAR

DEPARTMENT IN THE WAR WITH SPAIN VOL. 1, S. DOC. NO.

56-221, at 113 (1900) (hereinafter DODGE REPORT).

34 HERBERT H. SARGENT, THE CAMPAIGN OF SANTIAGO DE

CUBA 97 (1907).

35 DODGE REPORT at 197.

36 THEODORE ROOSEVELT, THE ROUGH RIDERS 35–36

(1899).

37 Id. at 71.

was in the 19th century, and it has been a long

time since the militia or volunteer forces were

called out for national defense. Thus, it is easy for

proponents of AWBs to argue we are in a new

world now, and the role of the militia is no longer

relevant or applicable. The Court should be

mindful however that time since an event is not

the

deciding

factor

when

adjudicating

constitutional rights—as the Chief Justice so

eloquently stated during oral argument last term,

“it's a new world; it's the same Constitution.”38

With these words in mind, the Court should

declare semiautomatic rifles, like the AR-15,

covered by the Second Amendment.

C. The government has a long history of not only

supporting private ownership of rifles relevant

to militia or military duty, but has specifically

encouraged it for over 120 years in the

promotion of civilian marksmanship.

Since 1903, the federal government has

actively supported and promoted civilian

marksmanship, including promoting skills with

military rifles. The Dodge Report directly noted

how general marksmanship skills of the

volunteers in the Spanish-American War were

inadequate.39 In fact, the first General Order

38 Transcript of Oral Argument at 34, Trump v. Barbara,

146 S. Ct. 2438 (No. 25-365).

39 DODGE REPORT at 222 and 276.

from the Headquarters of the First Division, First

Army, on May 19, 1898, specifically directed

commanders to make “condition, discipline, and

marksmanship the ultimate aim.”40 The Report

further illustrated how those with specific

marksmanship skills were able to distinguish

themselves and effect a meaningful advantage on

the battlefield.41 That said, these were the

outliers, with many historical records indicating

general marksmanship was quite poor.42 In order

to prevent a repeat of this situation for the next

time the government needed to call up militias or

volunteers to supplement regular forces for the

national defense, the Report recommended a

number of changes, and would play a decisive role

in the reorganization of the federal militia. 43

These changes would come not just in the form of

the Militia Act of 1903, see supra, but also the

Army Appropriations Act of 1904,44 which called

Id. at 273 (emphasis added).

Id. at 381–382.

42 E.g., Flashback Friday: “Uncle Sam’s Sharpshooters”:

Military Marksmanship at Fort Omaha and Bellevue ,

1882-1894,

NEB.

ST.

HIST.

SOC'Y,

https://history.nebraska.gov/flashback-friday-uncle-samssharpshooters-military-marksmanship-at-fort-omahaand-bellevue-1882-1894/b (last visited Aug. 13, 2026).

43 E.g. RUSSELL F. WEIGLEY, HISTORY OF THE UNITED

STATES ARMY 315 (1967).

44 Act of Mar. 2, 1903, ch. 975, 32 Stat. 927 (1903).

for the Secretary of War to establish national

matches to promote marksmanship.45

Under that statutory authority, Secretary

of War Elihu Root established the National Board

for the Promotion of Rifle Practice (NBPRP) in

December 1903.46

As part of its initial

recommendations, the NBPRP not only

established and promoted shooting competitions

for the newly recognized National Guard and

other organized

militia

units,

also

recommended “every facility should be offered [to]

citizens outside of the Army, Navy, Marine Corps,

and organized militia to become proficient in rifle

shooting, and that this purpose can best be

accomplished by means of rifle clubs.” 47 The

NBPRP also recommended the War Department

“encourage[] . . . the organization or rifle clubs” for

persons in the unorganized militia, and to “issue,

if practicable . . . service rifles and ammunition to

such clubs for target practice, [so] that the

training may be with the military arm.” 48 This

was not a singular occurrence or passing fad, as

legislation in 1908 ensured the Army would be

involved in civilian marksmanship instruction,49

and in 1916, Congress would pass specific

Id. at 941–42.

46 U.S. DEP’T OF THE ARMY, GEN. ORDER NO. 61 (1903).

Id. at 4.

Id.

49 Act of May 27, 1908, ch. 204, § 20, 35 Stat. 399, 403

(1908).

legislation authorizing camps for “military

instruction and training” and providing “such

arms and ammunition” as deemed necessary.50

Later that year, additional legislation would open

the national shooting matches to all “members of

rifle clubs and civilians,” and the Office of the

Director of Civilian Marksmanship (DCM) would

be established.51 Again the purpose of all of this

was “to provide standard military arms and

ammunition,

indoor

gallery

rifles

and

ammunition” to civilians for the purpose of

facilitating

marksmanship

and

firearms

proficiency among members of the unorganized

militia.52 In an annual report to Congress, the

Secretary of War noted the rifle clubs and their

civilian members, numbering over 100,000,

constituted “an important military asset.” 53 This

emphasis on promoting and encouraging civilian

marksmanship and proficiency with military

rifles has been codified in U.S. Code from 1916

through the present: first in Chapter 12 of Title

32, 32 U.S.C. §§ 181 et seq. (1925), and then

moved to Chapter 401 of Title 10 in 1956, 10

U.S.C. §§ 4307 et seq. (1952 Supp. IV 1957), before

the DCM would be privatized in 1996 as a

50 Act of June 3, 1916, ch. 134, § 54, 39 Stat. 166, 194 (1916).

51 Act of Aug. 29, 1916, ch. 418, 39 Stat. 619, 643 and 648

(1916).

52 Id. at 648.

53 WAR DEPARTMENT ANNUAL REPORTS, 1917 V. I at 899

(1918).

federally chartered 501(c)(3) corporation and

retitled the Civilian Marksmanship Program

(CMP), 36 U.S.C. §§ 40701 et seq (2024).

In addition to conducting matches and

hosting instructional events, from its inception

the DCM was authorized to engage in sales of

rifles from military stores to civilians who are

members in affiliated clubs or organizations.54 In

WWII and the Korean War, the M1 Garand, a

semiautomatic .30 caliber clip-fed rifle, was the

standard arm of U.S. forces; by 1957, the M1 was

replaced in service by the M14, an updated .30

caliber box magazine-fed rifle with both semi and

full-auto capabilities, and the surplussed

Garands transferred to the DCM for public

sales.55

In early August 2026, the CMP

announced the upcoming sale of over 100,000 M14

rifles (converted to semiautomatic only) to the

public as part of its mission to promote civilian

marksmanship.56 While the DCM and now CMP

do not sell full-auto rifles to the public, they did

E.g. 32 U.S.C. § 181(d) (1925); 10 U.S.C. § 4038(5) (1952

Supp. IV 1957).

55 Miguel Ortiz, JFK’s M1 Garand sold for nearly $150,000,

WE ARE THE MIGHTY (Nov. 14, 2024),

https://www.wearethemighty.com/military-news/jfks-m1garand-sold-for-nearly-150000/.

56 Daniel Terrill, CMP approved to sell more than 100,000

surplus M14 rifles, MILITARY TIMES (Aug. 10, 2026),

https://www.militarytimes.com/industry/techwatch/2026/0

8/10/cmp-approved-to-sell-more-than-100000-surplusm14-rifles/.

and do provide such rifles (M14s and M16s) for

certain instructional classes and encourage

participants to bring semi-automatic versions of

military rifles to trainings and matches.57 With

M16 pattern rifles (and carbine-variant M4s) now

the standard U.S. military small arm, and under

the aforementioned landscape and history, the

semiautomatic civilian variant, AR-15, is clearly

within the scope of weapons the Second

Amendment was written to protect.

II.

Modern semiautomatic weapons, like the

AR-15, are easily distinguishable from the

classes/types of weapons which this Court has

held are not protected in Miller and Heller.

A big part of the concern regarding AR-15s

seems to be that they appear visually to be

identical to the standard military small-arm, the

M16/M4, which has automatic fire capabilities. As

discussed above, the Court has clarified the

Second Amendment does “not [grant] a right to

keep and carry any weapon whatsoever in any

manner whatsoever and for whatever purpose.”

See Dick Jones & Serena Juchnowski, Excellence in

Competition Rifle: Then and Now, SHOOTING SPORTS USA

(June 17, 2020),

https://www.ssusa.org/articles/2020/6/17/excellence-incompetition-rifle-then-and-now; Aslhey Dugan, CMP’s

National Matches Educational Clinics offer something for

everyone, BEACON (July 9, 2024),

https://www.thebeacon.net/cmps-national-matcheseducational-clinics-offer-something-for-everyone/.

Heller, 554 U.S. at 626.

While not explicitly

stated, the general consensus is automatic

weapons are not protected by the Second

Amendment. Indeed, in addressing language

from Miller about the Second Amendment

covering “part of ordinary military equipment”

the Heller Court said it would be “startling” to

infer the “National Firearms Act’s [NFA]

restrictions on machineguns ... might be

unconstitutional, machineguns being useful in

warfare in 1939.” Heller, at 624. This distinction

however should clearly mean semiautomatic

weapons are presumptively under the umbrella of

the Second Amendment. The Court’s reference to

which arms “Americans overwhelmingly choose

for the lawful purpose of self-defense,” Id., at 628,

and Justice Alito’s concurrence in Caetano v.

Mass., 577 U.S. 411, 417 (2016)(Alito, J.,

concurring), strongly suggest this to be true.

A. Miller and Heller restrictions on “dangerous

and unusual weapons” should properly be read

to mean weapons which would be outside those

which a person called for militia duty would be

expected to bring.

Dangerous and unusual

Accepting arguendo that fully-automatic

firearms are not protected, semiautomatic

firearms can be clearly distinguished at a

technical level, as they only allow one shot per

pull of the trigger, contrasting with the multiple

shots possible with a fully-automatic firearm.

Federal statute strictly regulates machineguns

including “any weapon which shoots, is designed

to shoot, or can be readily restored to shoot,

automatically more than one shot, without

manual reloading, by a single function of the

trigger,” as well as “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.” 26 U.S.C. § 5845(b).

Federal statute also prohibits private citizens

from owning any machinegun manufactured after

May 1986. 18 U.S.C. § 922(o). Given the fact

semiautomatic handguns are legally purchased

nearly every day in each state across the nation,

this technical distinction is centrally important in

evaluating what is presumptively protected, and

what is not. This Court recently looked at the

distinction between semi and fully-automatic

firearms in Garland v. Cargill, 602 U.S. 406

(2024). It determined a firearm which can only

fire one shot at a time, even when equipped with

an accessory to help a shooter approximate

automatic fire, is statutorily not a machinegun

and thus outside the realm of the NFA’s

regulations.

In the context of the AR-15/M16 analysis,

the “dangerous and unusual” appellation which is

applied to weapons unprotected by the Second

Amendment seems to relate to the capacity of the

weapon to function as a machinegun.

The

relevant portion of federal statute appears, at

least in part, to be the language about the weapon

itself, or specific parts, being “designed and

intended” for automatic fire. 26 U.S.C. § 5845(b).

In F.J. Vollmer Co. v. Higgins, 23 F.3d 448 (D.C.

Cir. 1994), the D.C. Circuit determined a HK94

receiver which was originally manufactured as a

semiautomatic, but had since been modified to

fully-automatic before being completely restored

to the original semiautomatic status, did not

qualify as a machinegun because it was in its

original condition, undistinguishable from any

other brand new and fully-legal HK94. In the mid

1960’s the DCM allowed civilians to purchase

modified and “National Match” M14 rifles, which

were manufactured to permanently eliminate the

capacity for automatic fire.58 After the passage of

the Gun Control Act, Pub. L. No. 90-618, 82 Stat.

1213 (1968), the government tried to reverse

course, arguing that since the M14 is a full-auto

rifle, the DCM sold rifles should be regulated

under the NFA. In a notable civil forfeiture case,

a district court found dispositive the fact the rifle

in question was “designed to shoot only in a semiautomatic fashion” and “intended that it would be

permanently impossible for it to operate in an

automatic manner.” United States v. One U.S.

(TRW) 7.62mm M-14 Nat'l Match Rifle, Serial No.

1453711, No. C-3-78-125, 1980 WL 95647, at *2

58 ARMY REG. NO. 920-25, RIFLES, M14M AND M14NM,

FOR CIVILIAN MARKSMANSHIP USE (1965).

(S.D. Ohio May 20, 1980). While some district

courts have found original M14s which were

subsequently converted to semiautomatic only to

still fall under the NFA,59 the recently announced

release of 100,000 M14s for sale by the CMP, see

supra, indicates the dispositive nature of the

semi/fully-automatic distinction. In the instant

cases, the weapons at issue are all designed,

manufactured, and intended to be semiautomatic

only, and are therefore easily distinguished from

the

“dangerous

and

unusual

weapons”

contemplated by Miller and Heller.

Militia weapons

When discussing the protections of the

Second Amendment in the context of militia

service, Justice Scalia explained the meaning was

not about making any given militiaman a oneman-army, but rather should be read as what

equipment would be reasonable and appropriate

for someone to bring with them when called for

militia service: “‘[O]rdinarily when called for

[militia] service [able-bodied] men were expected

to appear bearing arms supplied by themselves

and of the kind in common use at the time.’”

Heller, at 624 (quoting Miller, at 179).

Accordingly, it would have been unreasonable to

expect, let alone require, an individual to provide

their own artillery pieces and associated

E.g. United States v. One TRW, Model M14, 7.62

Caliber Rifle 294 F.Supp. 2d 896 (2003).

ammunition, at the founding of this nation. So too

would it have been outlandish to suggest one

must or ought to provide their own man-of-war.

In fact, there are good reasons why the

government might specifically restrict such

independent provisions, as their proper

employment in military operations requires

extensive cooperation with other elements of a

fighting force. The modern analogue to such

weapons would include items like rockets,

missiles, bombs, or other destructive devices.60

Such weapons would certainly fall under the

category of “dangerous and unusual,” and are

easily distinguishable from semiautomatic rifles,

like AR-15s, which can utilize the standard

ammunition and magazines used across the U.S.

military, despite lacking automatic fire

capabilities.

D. The manner in which semiautomatic

weapons are utilized, compared to fully

automatic

weapons,

emphatically

reinforces the distinction between them,

and the types of weapons delineated by

Miller and Heller.

Bans on semiautomatic rifles incorrectly

conflate form with function, when in fact federal

law and this Court’s precedents make clear the

two are distinct and must be evaluated

separately. Since the matter before the Court

60 As defined by statute.

18 U.S.C. § 921(a)(4).

does not deal with the legality of rifles as a class,

but instead only the select category of

semiautomatic rifles, the relevant issue is

function.

To this end, numerous military

publications (ATP), including field manuals (FM),

training circulars (TC), and handbooks, clearly

and repeatedly delineate between semiautomatic

fire and any form of automatic or burst fire, both

in terms of training and in application. Army

ATP 3-21.8 defines different roles in an infantry

rifle squad/fire team, the smallest sub-unit within

an infantry platoon, and distinguishes between

the positions of a “Rifleman” and an “Automatic

Rifleman.”61 The ‘Rifleman’ is defined as the

“baseline standard for all Infantrymen” whose

“primary capability” is “[p]lacing well-aimed,

effective fire . . .,” and only secondarily “[b]e

prepared to assume the duties of the automatic

rifleman . . . .”62 In contrast, the ‘Automatic

Rifleman’ “provides . . . a high volume of sustained

suppressive and lethal fires for target areas.”63 In

lay terminology, the standard infantryman’s role

is to use targeted, single shots to defeat an enemy,

the same as could be accomplished with a

semiautomatic only rifle.

In contrast, the

automatic rifleman is usually supplied with a

U.S. DEP'T OF THE ARMY, ARMY TECHNIQUE

PUBLICATION NO. 3-21.8, THE INFANTRY RIFLE PLATOON

AND SQUAD at 1-13 and 1-14 (2025 ed.).

62 Id. at 1-15.

63 Id. at 1-16.

different weapon entirely, and is supposed to use

the volume of shots available with a machinegun

to either inhibit the general movement/operations

of an enemy in the targeted area, or to provide

volume of attack which is beyond the scope of a

general rifle. The automatic capabilities on the

rifle of an infantryman would allow them to

provide a volume of fire like a machinegun for a

brief period, should they need to, but that is not

the primary role. In fact, when training, fullyautomatic fire with an infantry rifle appears to be

extremely rare, and highly restricted, if even

allowed. This differentiation in practical use and

purpose between semiautomatic and fullyautomatic reiterates the distinction between such

weapons.

E. Proponents of bans against modern

semiautomatic

weapons

rely

misleading arguments involving tort

theories of dangerous activities or

inapposite comparisons to limitations on

speech.

Tort theories

Proponents of bans against modern

semiautomatic weapons unreasonably try to

encourage courts to adopt tort concepts common

for “abnormally dangerous activities” vis-à-vis

such weapons, instead of recognizing the inherent

dangers of anything when associated with

calculated misuse. Arguments in favor of bans

also rely heavily on examples of criminal activity

where mass shooters have used such rifles in the

commission of heinous atrocities, and the

possibility for similar such tragedies being

perpetrated in the future.64

What such

arguments seek to do, however, is substitute the

idea of inherent dangers with a more politicized

idea of dangers associated with calculated misuse;

viz. because semiautomatic rifles can be misused

to cause extreme damage, they must be treated as

though they are always dangerous, irrespective of

how and when used. This argument though is

inapplicable to constitutional rights and instead

becomes an adaptation of the tort concept of

“abnormally dangerous activity.” RESTATEMENT

(THIRD) OF TORTS § 20(B)(1) (AM. LAW INST. 2010).

While this type of argument is certainly

applicable in the context of matters within state

police power, like when considering activities like

blasting,65 or operating motor vehicles on public

roads,66 arguments to impose restrictions on

expressly enumerated constitutional rights must

meet a higher bar.

E.g. Docket # 82, supra note 2, at 28.

E.g. Fitzsimmons & Connell Co. v. Braun, 199 Ill. 390,

394 (1902) (“[I]t is a matter of common knowledge that

the use of dynamite as an explosive is intrinsically

dangerous.”).

66 E.g. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441,

460 (1920) (“[An] automobile operated upon the public

highways is so dangerous to other users of the highways

as to require its regulation and control under the police

power.”).

Free speech

Proponents of AWBs also sometimes point

to restrictions on the scope of other constitutional

rights, often referencing limits on the First

Amendment, against “libel, incitement, true

threats, fighting words, or falsely shouting fire in

a crowded theater.” Bianchi v. Brown, 111 F. 4th

438, 447 (4th Cir. 2024). These arguments are in

error however as they highlight activity or actions

which are willfully dangerous and intentionally

harmful as examples of why the words “Congress

shall make no law . . . abridging the freedom of

speech,”67 are not as limitless as a

straightforward reading would suggest. The

problem again is this type of argument relies on

examples of deliberate abuse and misconduct as

opposed to recognizing the broad protections

which protect even offensive speech. E.g. Matal

v. Tam, 582 U.S. 218, 246 (2017) (“Speech that

demeans on the basis of race, ethnicity, gender,

religion, age, disability, or any other similar

ground is hateful; but the proudest boast of our

free speech jurisprudence is that we protect the

freedom to express ‘the thought that we hate.’

(internal citation omitted)). After all, there is no

legal or protected way in which one is allowed to

libel and defame someone, make imminent

threats against another’s health and safety, or

cause a false panic in a public place. Therefore,

67 U.S. CONST. amend. I, cl. 3.

the proper corollary to the limits on willful and

intentional misconduct via speech would be limits

to the willful and intentional misconduct with

firearms; and there is no shortage of federal and

state regulation addressing such activity.

III. The Second Amendment contemplates

technological advances and specifically includes

technology which is current in a given era.

Following this Court’s ruling in N.Y. State

Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022),

establishing a rubric of text, history, and tradition

to evaluate the constitutionality of firearms

restrictions, advocates on both sides of the debate

around firearms have sought to point to the

historical record as justification for why their

position succeeds and the other fails. Gun

advocates point to the history of firearms

innovation and advancement in repeating

weapons and multi-shot rifles during the 18th

century, including public advertisements for the

display and demonstration of such weapons,

correspondence

between

the

Continental

Congress and an inventor of a multi-shot firearm

discussing

the

possibility

equipping

Continental Army troops with the weapon, and

the use of a novel 20-shot air rifle use by Lewis

and Clark on their expedition west across the

continent, among other examples.68 Opponents

address these historical examples by highlighting

the experimental (read ‘unusual’), and often

dangerous nature of these weapons, pointing to

the fact that improper manufacture, loading, or

use of chain-firing black-powder weapons could

result in a detonation of the weapon, instead of an

orderly discharge of shots.69 In the case of the air

rifle, they point to its delicate nature and the fact

it required skilled handling, as opposed to a

rugged musket of the time. They also point to the

difficulties of reloading, the fouling which

occurred from repeated use of black powder, and

the reduced power of such firearms compared to

modern firearms when firing projectiles of

comparable weights.70

While the opponents of modern firearms are

correct to point out the significant differences

between a Ferguson, Belton, Lorenzoni, or

Girardoni rifle (all experimental firearms which

were never widely adopted), and a modern

semiautomatic rifle, it is jejune and sophomoric to

History of Multi-Shot and Repeating

Firearms, Part 1: 1400-1791 – Earliest Repeaters, U. WYO.

68 Ashley Hlebinsky,

FIREARMS RES. CTR. (Aug. 6, 2026),

https://firearmsresearchcenter.org/forum/history-of-multishot-and-repeating-firearms-part-1-1400-1791-earliestrepeaters/

69 E.g. Def. Exhibit # 60, Rupp v. Bonta, No. 17-cv-00746

(C.D. Cal. May 26, 2023), Docket # 151-14.

70 E.g. Brian DeLay, The Myth of Continuity in American

Gun Culture, 113 CALIF. L. REV. 1, 45 (2025).

assume the founding fathers were ignorant of the

concept of technological advancement or the

general march of technological progress over time.

While the Founders may very well have found the

early inventions to be unsafe and dangerous, it

defies logic that they could not or would not

envision a world with significantly more advanced

technology than existed at the time. Two years

after Alexander Graham Bell invented the

telephone, Punch magazine published a cartoon

depicting futuristic videotelphony,71 despite the

fact no such technology was practically

conceivable at the time. In the age of Zoom

courtrooms, let alone video calls on smartphones,

the fantasy has certainly become reality.

Perhaps a clearer example of the

applicability of constitutional rights to advancing

technology is in the Fourth Amendment’s

protections against “unreasonable searches and

seizures”72 and how that applies to digital

technology. In Chatrie v. United States, 146 S.

Ct. 2193 (2026), this Court held emails and digital

calendars were covered by the Fourth

Amendment, and should be “shielded from the

‘inquisitive eyes” of the government.” Id. at 2197

(quoting Carpenter v. United States, 585 U.S.

Edison's Telephonoscope (Transmits

Light as Well as Sound), in PUNCH'S ALMANACK FOR 1879

71 George du Maurier,

(1878).

72 U.S. CONST. amend. IV.

296, 305 (2018). Emails are certainly more

advanced than modern firearms. To argue the

Founders could not even begin to conceive of safe

and efficient repeating firearms, nevertheless

intending Fourt Amendment protections for the

digital age, simply strains credulity.

CONCLUSION

In line with the arguments above, the Court

should reaffirm its established precedent,

recognizing and respecting the militia/martial

pedigree of the Second Amendment, and hold that

semiautomatic rifles are well within its scope.

Additionally, the Court should strongly reject any

attempt to reinstitute any form of meansbalancing test, and instead explicitly tell

lawmakers the only way to curtail explicitly

enumerated constitutional protections is through

the process laid out in Article V of the

Constitution.

For the foregoing reasons, the Court should

overrule the decisions of the Seventh and Second

Circuit Courts of Appeal.

Respectfully submitted,

G. ANTAEUS B. EDELSOHN

Counsel of Record

460 Center Street, Unit 6045

Moraga, CA 94570

(202) 770-1655

Antaeus.Edelsohn.Law@gmail.com

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.