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

Supreme Court briefSep 4, 2026

Ask Donna

What actually matters in this document.

Text

Nos. 25-238 and 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, IN HIS OFFICIAL CAPACITY

AS COMMISSIONER OF THE CONNECTICUT

DEPARTMENT OF EMERGENCY SERVICES AND

PUBLIC TRANSPORTATION, ET AL.,

Respondents.

On Writs Of Certiorari To The United States

Courts Of Appeals For The Seventh And

Second Circuits

BRIEF OF NEW YORK STATE RIFLE &

PISTOL ASSOCIATION, INC., ET AL., AS

AMICI CURIAE IN SUPPORT OF

PETITIONERS

Kenneth T. Cuccinelli, II

Counsel Of Record

10007 N. Harris Farm Road

Spotsylvania, Virginia 22553

(804) 286-2550

Ktclaw@Proton.Me

(Additional Counsel On Inside Cover)

Earl N. “Trey” Mayfield, III

Chalmers Adams Backer & Wallen, LLC

1032 15th St., #374

Washington, D.C. 20005

(678) 582-8900

tmayfield@chalmersadams.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 5

I. Miller and Heller Already Decide This Case ..... 5

A. Militia utility and common use are two

descriptions of one protected class .............. 5

B. The same rule prevailed in the nineteenth

century .......................................................... 7

C. Common use is not open to serious

dispute .......................................................... 7

D. Heller’s M-16 dictum cannot be inverted

into a militariness penalty........................... 8

E. Arms suitable for the common defense sit at

the core of the right, not its perimeter ...... 10

II. The Founding-Era Tradition Affirmatively

Commanded Civilians to Possess MilitiaPattern Arms ................................................... 10

A. Five colonies, one command: universal

private arms, enforced ............................... 11

B. The arms civilians were obligated to possess

were the statutorily specified military arms

of the day .................................................... 14

C. The duty ran to the whole population, in

ordinary civilian life ................................... 16

D. The negative record: no ban, ever — and the

early courts said why ................................. 17

E. Bruen’s “why” and “how” requirements both

condemn Respondents’ bans ...................... 19

III. Merely Asserting the Banned Arms Are

“Dangerous and Unusual” Fails to Apply the

Tests Mandated by Heller-Bruen .................... 20

A. The tradition is one of manner-of-carry, and

it is conjunctive .......................................... 20

B. A weapon in common use cannot be

“dangerous and unusual” ........................... 21

CONCLUSION.......................................................... 22

TABLE OF AUTHORITIES

Cases

Andrews v. State, 50 Tenn. 165 (1871)................. 7, 18

Ass’n of N.J. Rifle & Pistol Clubs v. Att’y Gen. N.J.,

183 F.4th 211 (3d Cir. 2026) (en banc) ........... 10, 21

Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840) .. 7, 18

Barnett v. Raoul, 180 F.4th 1035 (7th Cir. 2026) ...... 9

Bevis v. City of Naperville, 85 F.4th 1175 (7th Cir.

2023), cert. denied sub nom. Harrel v. Raoul,

144 S. Ct. 2491 (2024) ............................................. 9

Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024) (en

banc), cert. denied sub nom. Snope v. Brown, 145

S. Ct. 1534 (2025) .................................................... 9

Caetano v. Massachusetts, 577 U.S. 411 (2016) ...... 21

Dabbs v. State, 39 Ark. 353 (1882) ........................... 18

District of Columbia v. Heller, 554 U.S. 570 (2008)

........................................................... 4-10, 17, 20, 21

Grant v. Lamont, 153 F.4th 213 (2d Cir. 2025), cert.

granted sub nom. Grant v. Higgins, No. 25-566

(June 30, 2026) ...................................................... 21

Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en

banc), cert. denied, 583 U.S. 1007 (2017) ............... 9

New York State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) .............................. 8-11, 19, 20, 21

Nunn v. State, 1 Ga. 243 (1846) ............................... 17

Smith & Wesson Brands, Inc. v. Estados Unidos

Mexicanos, 605 U.S. 280 (2025) .............................. 7

Snope v. Brown, 145 S. Ct. 1534 (2025) (Kavanaugh,

J., statement respecting denial of certiorari) ..... 8, 9

Staples v. United States, 511 U.S. 600 (1994) ........ 7-8

State v. Burgoyne, 75 Tenn. 173 (1881) ................... 18

State v. Kessler, 614 P.2d 94 (Or. 1980) ..................... 6

United States v. Hemani, 146 S.Ct. 1677 (2026) . 9, 19

United States v. Miller, 307 U.S. 174 (1939) ...... 4-7, 9

United States v. Rahimi, 602 U.S. 680 (2024) .. 8-9, 19

Constitutional Provision

U.S. Const. Amend. II ............... 1, 3, 4, 6-10, 16-19, 22

Statutes

Militia Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271

............................................................................ 4, 15

Rev. Stat. § 1628 (1874) (repealed 1903) ................. 15

Militia Act of 1903 (the Dick Act), Pub. L. No. 57-33,

ch. 196, §§ 1, 13, 32 Stat. 775 ..................... 5, 15, 16

Conn. Order of 1636, 1 The Public Records of the

Colony of Connecticut 3 (J. Hammond Trumbull

ed., 1850)................................................................ 12

Conn. Code of 1650, The Code of 1650, Being a

Compilation of the Earliest Laws and Orders of the

General Court of Connecticut 72 (Silas Andrus

prtg. 1822) ............................................................. 12

Conn. Act of 1741, 8 Conn. Public Records 380 ....... 14

Md. Council Order of June 23, 1642, 3 Archives of

Maryland: Proceedings of the Council of Maryland,

1636–1667, at 103 (William Hand Browne ed.,

1885) ................................................................. 12-13

Md. Instructions to the Militia Captains (1657–60),

3 Archives of Maryland 345 .................................. 12

An Act for regulating the Militia of the Province of

Maryland (May 1756), 52 Archives of Maryland

450–56 (Lower House Journal, Liber No. 48) ...... 13

Mass. Bay Order of 1631, 1 Records of the Governor

and Company of the Massachusetts Bay in New

England 84 (Nathaniel B. Shurtleff ed., 1853)

.......................................................................... 12, 13

1693 Mass. Acts ch. 3, 129........................................ 14

iii

1776 Mass. Acts ch. 10, 448...................................... 14

N.J. Stat. Ann. §§ 2C:39-1(w), (y), 2C:39-3(j), 2C:395(f) (West 2018) ..................................................... 21

R.I. Order of 1639, 1 Records of the Colony of Rhode

Island and Providence Plantations, in New

England 94 (John Russell Bartlett ed., 1856) ...... 16

R.I. Acts and Orders of 1647, 1 R.I. Records 154 .... 11

R.I. Order of 1665, 2 R.I. Records 115 ..................... 13

R.I. Act of 1718, Acts and Laws of His Majesties

Colony of Rhode-Island, and ProvidencePlantations in America 86–88 (1719 prtg.)

.................................................................... 13, 14, 16

R.I. Order of 1775, 7 R.I. Records 356 ..................... 13

R.I. Act of Oct. 1779, 1779 R.I. Acts & Resolves (Oct.

Sess.) 29, 31–32 (Bennett Wheeler prtg.) ........ 14-15

R.I. Act of Mar. 1781, 1781 R.I. Acts & Resolves

(Mar. Sess.) 51, 52 (Bennett Wheeler prtg.)......... 15

Va. Acts of Mar. 1623–24, Nos. 25 & 27, 1 William

Waller Hening, The Statutes at Large; Being a

Collection of All the Laws of Virginia 127 (1823)

................................................................................ 11

Va. Acts of 1639–40, 1 Hening 226 .......................... 17

Va. Acts of 1643, 1 Hening 263 ................................ 16

Va. Acts of 1659–60 and 1661–62, 1 Hening 525;

2 Hening 126 ......................................................... 12

Va. Acts of 1705, 3 Hening 337 ................................ 16

Va. Acts of 1723, 4 Hening 119–20 .......................... 13

Va. Act of May 1723, 4 Hening 126, 131 .................. 17

Va. Acts of 1738, 5 Hening 19–21 ............................ 16

Va. Acts of 1785, 12 Hening 12 ................................ 15

Va. Acts of 1788, 12 Hening 697 .............................. 15

Statute of Northampton, 2 Edw. 3, c. 3 (1328)

(Eng.) ..................................................................... 20

Other Authorities

Marcus Armstrong, The Militia II: Armed SelfDefense, the Second Amendment, and the Citizen,

56 St. Mary’s L.J. 739 (2025) ................................ 10

3 The Debates in the Several State Conventions on the

Adoption of the Federal Constitution (Jonathan

Elliot ed., 2d ed. 1836)........................................... 19

1 William Hawkins, A Treatise of the Pleas of the

Crown 136 (1716) .................................................. 20

David B. Kopel & Joseph G.S. Greenlee, The History

of Bans on Types of Arms Before 1900, 50 J. Legis.

223 (2024) .............................................................. 18

INTEREST OF AMICI CURIAE 1

Amici are eleven nonprofit organizations and seven

individuals who share a direct interest in the question

presented: whether the rifles and magazines most

suitable for militia service — and therefore, amici

submit, most clearly protected by the Second

Amendment — may be banned on precisely that

account.

The organizational amici are the New York State

Rifle & Pistol Association; the Ohio Rifle and Pistol

Association; the Indiana State Rifle and Pistol

Association; the Virginia Shooting Sports Association;

the Vermont Federation of Sportsmen’s Clubs, Inc.;

Gun Owners of Vermont, Inc.; the New Hampshire

Firearms Coalition, Inc.; Florida Carry, Inc.; the

Montana Shooting Sports Association, Inc.; the

Oregon Firearms Educational Foundation; and Rights

Watch International. Each is a nonprofit organization

devoted to firearms-safety education, marksmanship

training, competitive shooting, or the legal defense of

the right to keep and bear arms — most to all four.

Their members are law-abiding gun owners who own,

train with, and compete with rifles and magazines of

the very types Respondents have banned.

That membership sustains, in modern form, the

tradition this brief recounts. The Vermont Federation

of Sportsmen’s Clubs, organized in 1875, is an

umbrella association of more than fifty Vermont clubs

whose members’ most commonly owned long guns are

semiautomatic rifles of the banned pattern. The Ohio

Rifle and Pistol Association, an affiliate of the

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici, their members or their counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

National Rifle Association and the Civilian

Marksmanship Program, hosts Ohio’s state

championship “Across-the-Course” Service Rifle

matches — fired today principally with AR-15-pattern

rifles, as they once were with the 1903 Springfield and

the M1 Garand — and prepares Ohio’s shooters for the

National Matches held each summer at Camp Perry,

where marksmanship distinctions recognized by

Congress and the United States military are earned.

Bans of the kind at issue here reach directly into that

world: they expose traveling competitors to legal

jeopardy and deter ranges from hosting the matches

through which ordinary citizens attain proficiency

with the standard rifle of the era.

The individual amici Dennis Fusaro of Virginia and

Robert L. Beckman of Ohio are members of the Board

of Directors of the National Rifle Association; Larry C.

Johnson of Florida is an NRA-certified firearms

instructor and training counselor; and Bruce A.

Beckman of Indiana is a competitive shooter

(institutional titles are given for identification only).

Each is a gun owner and a leader in firearms

education, training, and advocacy, with a concrete

personal stake in the right this case tests.

Amici Colonel Douglas A. Macgregor, U.S. Army

(Ret.), and James R. Webb add the perspective of

professional soldiers. Colonel Macgregor, a decorated

combat veteran of the Gulf War, served as chief of

strategic planning at Supreme Headquarters Allied

Powers Europe and later as senior advisor to the

Acting Secretary of Defense, and has written

extensively on military strategy and force design. Mr.

Webb served as a Marine infantryman from 2005 to

2010, completing a combat tour in Iraq, and now

reports and comments on war and foreign policy.

Their service acquainted them firsthand with the

relationship between the citizen’s arms and the

soldier’s — the relationship at the heart of this case.

The Honorable Tom Parker served as Chief Justice

of the Supreme Court of Alabama. His interest lies in

the faithful application of constitutional text, history,

and this Court’s precedents in the courts below — the

very thing amici submit the decisions under review

failed to deliver.

All amici share one conviction, developed in this

brief: the Second Amendment’s militia clause marks

the core of the right — arms suitable for the common

defense, kept by ordinary citizens in ordinary civilian

life. The decisions below each offend that guarantee,

though by different routes. The Seventh Circuit held

the AR-15 too much like a military rifle to be an “Arm”

within the Amendment’s protection at all — treating

suitability for militia service itself as a ground for

prohibition. The Second Circuit reached the same

result by recasting the historical “dangerous and

unusual” exception as a license to ban arms whose

military-derived features it deems “unusually

dangerous,” notwithstanding their common use. The

first rationale inverts the constitutional text outright;

the second does so through the “dangerous and

unusual” exception, dissolving the test this Court’s

precedents mandate. Amici file to place before the

Court the founding-era statutory record that answers

both.

SUMMARY OF ARGUMENT

The Seventh Circuit sustained Cook County’s ban

on the theory that the AR-15 is too much like a

military rifle to be an “Arm” within the Second

Amendment’s protection at all; the Second Circuit

sustained Connecticut’s ban on the related theory that

the AR-15’s military-derived features make it

“unusually dangerous” and therefore subject to

prohibition despite its common use. Both rationales

invert the constitutional text they purport to apply.

The Amendment’s very text announces its purpose:

“the security of a free State” through “[a] well

regulated Militia.” This Court’s cases give that

purpose doctrinal form. Under United States v. Miller,

the arms protected by the Amendment are those

bearing “some reasonable relationship to the

preservation or efficiency of a well regulated militia”

— arms that are “part of the ordinary military

equipment” or whose use “could contribute to the

common defense.” 307 U.S. 174, 178 (1939). District of

Columbia v. Heller adopted Miller’s test and equated

it with common use, because in the founding era, the

militiaman’s arm and the citizen’s arm were “one and

the same.” 554 U.S. 570, 624–25 (2008). Militia utility

is where Second Amendment protection begins. It

cannot be the reason to nullify that protection.

History confirms what the text declares. For a

century and a half before ratification and for more

than a century after, American law did not merely

tolerate the private keeping of military-pattern arms

— it commanded it. Massachusetts, Connecticut,

Rhode Island, Virginia, and Maryland ordered

householders — not merely enrolled soldiers — to

keep the specified infantry arm of the day at home,

and enforced the command with inspections and fines.

Virginia’s 1785 militia act supplied the near-verbatim

template for the Militia Act of May 8, 1792, ch. 33, §

1, 1 Stat. 271, in which the First Congress directed

every enrolled citizen to “provide himself” with a

musket or rifle — a requirement that remained

federal law in substance until 1903, when Congress

began issuing “the United States standard service

magazine arms, with bayonets” to the organized

militia. Militia Act of 1903 (the Dick Act), Pub. L. No.

57-33, ch. 196, §§ 1, 13, 32 Stat. 775, 777. At no point

in that unbroken chain did any American legislature

treat military utility as a reason the citizen should not

have the arm.

The historical record is equally bare of any bans on

militia-suitable arms. No colonial or founding-era

jurisdiction banned a type of arm. The nineteenth

century’s few sustained restrictions ran against small,

sub-military pistols, expressly sparing army- and

navy-pattern arms from regulation. Every court of the

era held that militia-suitable arms could not be

outlawed from possession by the citizenry.

Respondents’ own theory — that the AR-15 is

meaningfully similar to the M-16 — concedes militia

suitability. Under the American tradition, that

concession completes the case against them.

Nor can the out-of-context phrase from Heller,

“dangerous and unusual,” carry the weight the Second

Circuit places on it. The phrase refers to the mannerof-carry tradition, not the weapons themselves. The

test itself is conjunctive; thus, a weapon in common

use, by definition, cannot be unusual. The judgments

should be reversed.

ARGUMENT

I. Miller and Heller Already Decide This Case.

A. Militia utility and common use are two

descriptions of one protected class.

Miller explained who made up the militia: “civilians

primarily, soldiers on occasion,” who when called

“were expected to appear bearing arms supplied by

themselves and of the kind in common use at the

time.” 307 U.S. at 179 2. To obtain Second Amendment

protection, there must be evidence that a weapon has

“some reasonable relationship to the preservation or

efficiency of a well regulated militia,” and that it is

“part of the ordinary military equipment or that its

use could contribute to the common defense.” Under

that rubric, the Miller Court could not say 3 the

Amendment guarantees the right to keep the shortbarreled shotgun in question. 307 U.S. at 178.

Heller took both halves of that opinion and welded

them together. Miller’s “ordinary military equipment”

language, the Court explained, “must be read in

tandem with what comes after” — the arms the

citizen-soldier supplied himself, “of the kind in

common use at the time.” 554 U.S. at 624. “The

traditional militia was formed from a pool of men

bringing arms ‘in common use at the time’ for lawful

purposes like self-defense,” because “[i]n the colonial

and revolutionary war era, [small-arms] weapons

used by militiamen and weapons used in defense of

person and home were one and the same.” Id. at 624–

25 (quoting State v. Kessler, 614 P.2d 94, 98 (Or.

1980)). “Indeed,” the Court continued, “that is

precisely the way in which the Second Amendment’s

operative clause furthers the purpose announced in its

preface.” Id. at 625. Heller thus construed Miller “to

say only that the Second Amendment does not protect

2 Miller’s own historical review corroborates this understanding:

the Court catalogued colonial and founding-era militia statutes

from Massachusetts, New York, and Virginia, each obligating

militiamen to arm themselves, and concluded that they reflected

“the general obligation of all adult male inhabitants to possess

arms.” 307 U.S. at 179–82.

3 As the Miller Court acknowledged, no evidence was presented

in the case of whether the particular firearm at issue had “some

reasonable relationship to the preservation or efficiency of a well

regulated militia.” 307 U.S. at 178.

those weapons not typically possessed by law-abiding

citizens for lawful purposes.” Id.

Militia suitability and common use are therefore

not competing tests; they are two descriptions of the

same protected class of arms, and the AR-15 answers

both at once. A court faithfully applying Miller and

Heller does not ask whether a banned rifle resembles

military equipment in order to strip protection.

Likeness to militia arms is what the Amendment has

protected under this Court’s precedents since 1939.

B. The same rule prevailed in the nineteenth

century.

Miller did not invent its test; it cited Aymette v.

State, the 1840 Tennessee decision holding that the

arms whose keeping is secured “are such as are

usually employed in civilized warfare, and that

constitute the ordinary military equipment.” 21 Tenn.

(2 Hum.) 154, 158; see 307 U.S. at 178 (citing

Aymette). Tennessee’s highest court applied that

principle again after the Civil War: the

constitutionally protected arms include “the rifle of all

descriptions, the shot gun, the musket, and repeater,”

and “the right to keep such arms[] can not be infringed

or forbidden by the Legislature.” Andrews v. State, 50

Tenn. 165, 179 (1871). In direct contradiction, the rule

applied below — military usefulness forfeits

protection, whether at the threshold or as a ground for

prohibition — is precisely the rule rejected throughout

the nineteenth century. See also Part II.D, infra.

C. Common use is not open to serious dispute.

This Court has already said so plainly: “The AR-15

is the most popular rifle in the country.” Smith &

Wesson Brands, Inc. v. Estados Unidos Mexicanos,

605 U.S. 280, 297 (2025); see Staples v. United States,

511 U.S. 600, 612 (1994) (noting that AR-15s

“traditionally have been widely accepted as lawful

possessions”). The scale is a matter of record.

“Americans today possess an estimated 20 to 30

million AR-15s,” and those rifles “are legal in 41 of the

50 States”; their owners accordingly “have a strong

argument that AR-15s are in ‘common use’ by lawabiding citizens and therefore are protected by the

Second Amendment under Heller.” Snope v. Brown,

145 S. Ct. 1534 (2025) (Kavanaugh, J., statement

respecting denial of certiorari).

D. Heller’s M-16 dictum cannot be inverted

into a militariness penalty.

The Seventh Circuit’s decision below rested on a

single sentence in Heller: “It may be objected that if

weapons that are most useful in military service — M16 rifles and the like — may be banned, then the

Second Amendment right is completely detached from

the prefatory clause.” 554 U.S. at 627. Three points

cabin that dictum. First, it is conditional — an

objection acknowledged, not a holding announced; the

very next sentences answer the objection through the

common-use limitation, observing that a modern

militia’s ideal equipment “may” include “sophisticated

arms that are highly unusual in society at large.” Id.

Arms owned by tens of millions are the opposite of

“highly unusual in society at large.” Second, the

dictum concerns arms not in common use; it nowhere

licenses courts to strip protection from commonly

possessed arms because of their military kinship —

that reading collides with the pages immediately

preceding it, which define the protected class by the

militiaman’s privately kept arm. Id. at 624–25. Third,

after New York State Rifle & Pistol Ass’n v. Bruen, 597

U.S. 1 (2022), United States v. Rahimi, 602 U.S. 680

(2024), and United States v. Hemani, 146 S. Ct. 1677

(2026), the Court’s analytical framework is plain:

when “the Amendment’s terms cover the conduct in

question,” the Constitution “presumptively” protects

it, and “the government then bears the burden” of

justification from historical tradition. Hemani, 146 S.

Ct. at 1685 (citing Bruen, 597 U.S. at 24). There is no

extratextual escape from that framework.

The contrary line of authority at issue here

flagrantly inverts the text-history standard. As the

Fourth Circuit summarized, “Put simply, we have no

power to extend Second Amendment protection to the

weapons of war that the Heller decision explicitly

excluded from such coverage.” Kolbe v. Hogan, 849

F.3d 114, 121 (4th Cir. 2017) (en banc), cert. denied,

583 U.S. 1007 (2017); accord Bianchi v. Brown, 111

F.4th 438 (4th Cir. 2024) (en banc), cert. denied sub

nom. Snope v. Brown, 145 S. Ct. 1534 (2025); Bevis v.

City of Naperville, 85 F.4th 1175, 1194 (7th Cir. 2023)

(holding that protected arms exclude “a militaristic

weapon such as the AR-15”), cert. denied sub nom.

Harrel v. Raoul, 144 S. Ct. 2491 (2024); Barnett v.

Raoul, 180 F.4th 1035 (7th Cir. 2026) (reaffirming

Bevis after certiorari was granted here). On their

view, the closer a common arm is to the militia arm,

the weaker its protection. This is exactly wrong. Were

that the rule, Miller would fail on its own facts, since

the short-barreled shotgun there could not be shown

to bear the requisite relationship to militia service —

not because none existed, but because no evidence on

the question had been presented. Miller, 307 U.S. at

178. The Fourth and Seventh Circuits’ inversion of

this Court’s rule detaches the Amendment’s operative

clause from its declared object. It must be rejected.

E. Arms suitable for the common defense sit at

the core of the right, not its perimeter.

The Amendment’s prefatory clause “announces the

purpose for which the right was codified: to prevent

elimination of the militia.” Heller, 554 U.S. at 599.

“[T]he threat that the new Federal Government would

destroy the citizens’ militia by taking away their arms

was the reason that right — unlike some other

English rights — was codified in a written

Constitution.” Id. Hence, arms suitable for the

common defense occupy the guarantee’s heartland.

The banned rifles at issue here “appear to fall within

the heartland of the Second Amendment protection —

an ‘individual right to own privately and keep

weapons suitable for militia service.’” Ass’n of N.J.

Rifle & Pistol Clubs v. Att’y Gen. N.J. (ANJRPC), 183

F.4th 211, 257 n.14 (3d Cir. 2026) (en banc) (Matey,

J., joined by Mascott, J., concurring) (quoting Marcus

Armstrong, The Militia II: Armed Self-Defense, the

Second Amendment, and the Citizen, 56 St. Mary’s

L.J. 739, 763 (2025)). Both decisions below fail as a

matter of textual structure. Whether militariness

defeats coverage at the threshold, as the Seventh

Circuit held, or supplies the justification for

prohibition, as the Second Circuit held, the result is a

doctrine placing the militia-suitable arm at the bottom

of the Second Amendment — protection strongest for

derringers, weakest for the militiaman’s rifle. That

has the Amendment exactly backwards.

II. The Founding-Era Tradition Affirmatively

Commanded Civilians to Possess MilitiaPattern Arms.

Under Bruen, once the text covers the arms at issue

the burden is Respondents’ to show their categorical

prohibition of such arms is “consistent with the

Nation’s historical tradition of firearm regulation.”

597 U.S. at 24. The robust historical tradition is not

silent on this point; it runs affirmatively the other

way. The founders’ arms statutes — colonial, state,

and federal — commanded the private keeping of

military-pattern arms, specified the arms by statute,

extended the duty beyond the muster rolls to

householders generally, audited compliance in

ordinary civilian life, and never once banned

possession of a category of arm.

A. Five colonies, one command: universal

private arms, enforced.

The command is as old as the first surviving

American legislation. Virginia’s Assembly of 1623–24

ordered “that men go not to worke in the ground

without their arms (and a centinell upon them)” and

“that the commander of every plantation take care

that there be sufficient of powder and amunition

within the plantation under his command and their

pieces fixt and their arms compleate.” Acts of Mar.

1623–24, Nos. 25 & 27, 1 William Waller Hening, The

Statutes at Large; Being a Collection of All the Laws of

Virginia 127 (1823) (Hening). From the earliest

settlements, the command was universal and

personal. Rhode Island’s 1647 code ordered that

“every Inhabitant of the Island above sixteen or under

sixty yeares of age, shall alwayes be provided of a

Musket, one pound of powder, twenty bullets, and two

fadom of Match, with sword, rest, bandaleers … all

completely furnished.” Acts and Orders of 1647, 1

Records of the Colony of Rhode Island and Providence

Plantations, in New England 154 (John Russell

Bartlett ed., 1856) (R.I. Records). In 1659–60, Virginia

enacted the requirement “[t]hat every man able to

beare armes have in his house a fixt gunn two pounds

of powder and eight pound of shott at least,” on pain

of a fine of fifty pounds of tobacco, 1 Hening 525, and

reenacted the mandate in 1661–62, 2 Hening 126.

In 1631, Massachusetts ordered every town to

ensure every person was “furnished with good &

sufficient armes,” with the town arming those too poor

to arm themselves, 1 Records of the Governor and

Company of the Massachusetts Bay in New England

84 (Nathaniel B. Shurtleff ed., 1853) (Mass. Records).

In 1636, Connecticut ordered “that every souldier in

each plantacon shall haue in his howse in a readines

… twoe pounde of powder,” shown “to the Constable

whenever he shall call them vnto it vppon the penalty

of Xs. [ten shillings] for every failure,” 1 The Public

Records of the Colony of Connecticut 3 (J. Hammond

Trumbull ed., 1850) (Conn. Public Records).

Connecticut’s Code of 1650 required every male above

sixteen to “have in continuall readines, a good muskitt

or other gunn, fitt for service.” The Code of 1650, Being

a Compilation of the Earliest Laws and Orders of the

General Court of Connecticut 72 (Silas Andrus prtg.

1822). Maryland ran the same course. Its Council

ordered on June 23, 1642, “[t]hat all housekeepers

provide fixed gunn and Sufficient powder and Shott

for each person able to bear arms,” 3 Archives of

Maryland: Proceedings of the Council of Maryland,

1636–1667, at 103 (William Hand Browne ed., 1885)

(Archives of Maryland); its instructions to the militia

captains (1657–60) directed them to “take an exact

vieue of euery mans Armes that they be well fixed”

and to “make euery householder provide himselfe

speedyly with Armes & Ammunicon according to a

former Act of Assembly viz 2ld of powder and 5ld of

shott & one good Gun well fixed for euery man able to

beare Armes in his house.” 3 Archives of Maryland

345. And its militia act of May 1756 was still arming

enrolled men who lacked arms at public expense —

against repayment of “the first Cost thereof” within

nine months, excused only for those whose whole

estate was under forty pounds sterling — with free

public arms reserved “to Such Persons of the Militia

as are by this Act deemed unable to provide the

Same.” An Act for regulating the Militia of the

Province of Maryland (May 1756), 52 Archives of

Maryland 453, 455 (Lower House Journal, Liber No.

48).

These mandates were not hortatory. Rhode Island

sent inspectors house to house “to take an account …

of the powder, arms and ammunition” of each

inhabitant, Order of 1775, 7 R.I. Records 356; Virginia

fined the unarmed in tobacco, Act of 1723, 4 Hening

119–20; Rhode Island’s 1718 act exacted “Three

Shillings, for each time he shall be found not

provided,” R.I. Act of 1718, in Acts and Laws of His

Majesties Colony of Rhode-Island, and ProvidencePlantations in America 87 (1719 prtg.) (R.I. Acts and

Laws); and its 1665 order fined the “parents and

masters” obliged to “find armes and amunition (as

they must doe) for their sones and sarvants that are

listable.” 2 R.I. Records 115. Where poverty stood in

the way, government subsidized rather than excused:

Massachusetts’ towns armed those unable to arm

themselves, with repayment “when they shalbe able.”

Order of 1631, 1 Mass. Records 84. Government

audited, financed, and compelled private arms

ownership — to ensure there was enough of it.

B. The arms civilians were obligated to

possess were the statutorily specified

military arms of the day.

The statutes did not say “a gun.” They specified the

infantry arm. Rhode Island, 1718: “one good Musket,

or Fuzee, the Barrel whereof not to be less than three

foot and an half in length … one pound of good

Gunpowder, thirty Bullets, … one good Sword, or

Baionet, a Cartouch Box, ready fitted with Cartriges

of Gunpowder and Bullets.” R.I. Acts and Laws 87.

Massachusetts, 1693: “a well fixt firelock musket …

the barrel not less than three foot and a half long,”

with “one pound of good powder, twenty bullets … and

twelve flints” — required of “every listed souldier and

other householder.” 1693 Mass. Acts ch. 3, 129

(emphasis added). Connecticut, 1741: materially

identical, again reaching every “listed souldier and

other house-holder.” 8 Conn. Public Records 380

(emphasis added). Massachusetts, 1776: each

militiaman “shall equip himself, and be constantly

provided with a good fire-arm … a bayonet fixed to his

gun … a cartridge-box that will hold fifteen rounds of

cartridges, at least, a hundred buck-shot … one pound

of powder, forty leaden balls.” 1776 Mass. Acts ch. 10,

448.

The premise that the required arms be privately

owned was explicit. Massachusetts’ January 1776 act

ordered each militiaman to “equip himself” (emphasis

added), id.; Rhode Island’s October 1779 act

required “each and every effective Man” to be

furnished “at his own Expence” with “one good

Musquet, and a Bayonet fitted thereto,” excepting

only those the town councils “shall adjudge unable

to purchase the same,” and its March 1781 act

required “a good Gun, being his own Property.” 1779

R.I. Acts & Resolves (Oct. Sess.) 29, 31–32 (Bennett

Wheeler prtg.); 1781 R.I. Acts & Resolves (Mar. Sess.)

51, 52 (Bennett Wheeler prtg.). The arm the militia

would bear was, by legislative design, the arm the

citizen owned.

Virginia’s post-Independence militia act of 1785

specified private ownership of “a good, clean musket

carrying an ounce ball, and three feet eight inches

long in the barrel, with a good bayonet and iron

ramrod well fitted thereto, a cartridge box properly

made, to contain and secure twenty cartridges,” with

rifles permitted in lieu west of the Blue Ridge. 12

Hening 12. On the eve of ratification of the U.S.

Constitution, the same legislature ordered that “each

of the militia in the several counties on the western

waters, shall keep always ready a good musket or

rifle, half a pound of good powder, and one pound of

lead, to be produced whenever called for by his

commanding officer.” Act of 1788, 12 Hening 697. The

1785 act was the near-verbatim template for the First

Congress’s Militia Act of 1792, which commanded that

“every citizen so enrolled … shall … provide himself

with a good musket or firelock, a sufficient bayonet

and belt … a pouch with a box therein to contain not

less than twenty-four cartridges … or with a good

rifle.” § 1, 1 Stat. 271. Congress even shielded the

mandated arm from creditors and the tax collector:

every citizen so armed “shall hold the same exempted

from all suits, distresses, executions or sales, for debt

or for the payment of taxes.” § 1, 1 Stat. 272.

The federal command endured. It was carried

forward as Section 1628 of the Revised Statutes

(1874): “[e]very citizen shall … be constantly provided

with a good musket or firelock … or with a good rifle.”

When the Dick Act finally ended universal selfprovision in 1903, Congress replaced it — for the

organized militia, the National Guard — with

issuance of “the United States standard service

magazine arms, with bayonets,” while continuing to

define the reserve militia as the whole body of ablebodied male citizens. Dick Act §§ 1, 13, 32 Stat. 777.

Stated precisely: for the one hundred eleven years

immediately following the Second Amendment’s

ratification, federal law commanded the ordinary

citizen to purchase and keep the current military arm

at home at his own expense. Thereafter, the organized

militia was armed to the Army’s own standard. For

that entire period, no Congress or State ever treated

military utility as a reason the citizen should not have

the arm. Doing so would have been the antithesis of

having a militia capable of securing a free State.

C. The duty ran to the whole population, in

ordinary civilian life.

The arms duty was not confined to musters.

Virginia ordered “masters of every family” to “bring

with them to church on Sondays one fixed and

serviceable gun,” Act of 1643, 1 Hening 263, and was

fining ordinary militia members delinquent in

appearance or equipment five shillings in 1738. 5

Hening 19–21. In 1639, Rhode Island mandated that

“none shall come to any public Meeting without his

weapon.” 1 R.I. Records 94. Even the militia-exempt

were armed by law: Virginia’s exempted officials —

councillors, the Speaker, justices — were “required

and enjoyned to provide and keep at their respective

places of abode a troopers horse, furniture, arms and

ammunition,” produced annually for inspection. Act of

1705, 3 Hening 337. Rhode Island required those

excused from training to keep the same arms as

trainband members. R.I. Acts and Laws 86, 88.

Exemption from mustering never meant exemption

from arms. 4 The keeping of the military-pattern arm

was the ordinary condition of civilian life — which is

why Heller could say the militiaman’s weapon and the

household weapon “were one and the same.” 554 U.S.

at 624–25.

D. The negative record: no ban, ever — and the

early courts said why.

Respondents have no historical tradition answer to

those mandates requiring civilians to own militiastandard arms. No colonial or founding-era American

jurisdiction banned any type of arm. When

nineteenth-century legislatures first restricted

particular weapons, the courts drew a line no tribunal

of the era disputed, namely, that militia arms could

not be banned. Georgia’s handgun ban fell in Nunn v.

State, 1 Ga. 243, 251 (1846) — the decision whose

reasoning Heller said “perfectly captured the way in

which the operative clause of the Second Amendment

furthers the purpose announced in the prefatory

clause.” 554 U.S. at 612. Tennessee held that the arms

“usually employed in civilized warfare” are the

4 The tradition’s shameful exception proves its rule. The same

legislatures that commanded universal arms-keeping withheld

arms from those they excluded from the political community

itself. Virginia’s 1639–40 assembly directed that “ALL persons

except negroes to be provided with arms and ammunition or be

fined at pleasure of the Governor and Council,” 1 Hening 226,

and its 1723 act made it unlawful for any “negro, mulatto, or

Indian whatsoever … to keep, or carry any gun, powder, shot, or

any club, or other weapon whatsoever, offensive or defensive.”

Act of May 1723, 4 Hening 126, 131. Arms-keeping was a badge

and duty of membership in the political community; the era’s

disgraceful exclusions from arms tracked, precisely, its

exclusions from that community. That is the tradition’s own

confirmation that the keeping of militia-suitable arms lay at the

core of the right of “the people.”

protected core, Aymette, 21 Tenn. at 158, and that the

citizen’s right to keep “the rifle of all descriptions, the

shot gun, the musket, and repeater … can not be

infringed or forbidden,” Andrews, 50 Tenn. at 179.

In contrast, the era’s only sustained sales bans

prove the same rule from the other side: they ran

against small, sub-military pistols and expressly

spared army- and navy-pattern revolvers. State v.

Burgoyne, 75 Tenn. 173, 174 (1881) (construing an

1879 statute as exempting “army or navy” pistols);

Dabbs v. State, 39 Ark. 353, 357 (1882) (upholding a

statute banning concealable weapons because it “in no

wise restrains the use or sale of such arms as are

useful in warfare”). “The unanimous judicial view of

the time was that, at the least, no government could

outlaw militia-suitable arms.” David B. Kopel &

Joseph G.S. Greenlee, The History of Bans on Types of

Arms Before 1900, 50 J. Legis. 223, 382 (2024).

Respondents’ central factual claim — the AR-15’s

kinship to the M-16 — thus concedes the very feature

that placed militia-suitable arms beyond prohibition

in every precedent of the era, including the cases that

upheld bans.

Only one honest reading comes from that historical

record. In the era when the Second Amendment’s

meaning was fixed and first expounded, the militiasuitable arm marked the inner boundary of legislative

power. It was the one category of arm every court of

the era agreed could not be taken from the citizen. A

ban aimed at the AR-15 precisely because of its

military kinship does not merely sit uneasily with that

tradition; it contradicts the tradition’s only

unanimous rule.

E. Bruen’s “why” and “how” requirements

both condemn Respondents’ bans.

Bruen directs courts to analyze “how and why”

purportedly analogous historical regulations burden a

citizen’s right to armed self-defense. 597 U.S. at 29;

see Rahimi, 602 U.S. at 692 (the question is whether

the modern law “is consistent with the principles that

underpin our regulatory tradition”). The why of

founding-era arms law was to maximize — not

minimize — the defensive capability resident in the

citizenry: legislatures’ fear was for an underarmed

people, never an overarmed one. That was the

codification concern itself — the fear of a disarmed

militia, voiced in the ratification debates by George

Mason (disarming the people was “the best and most

effectual way to enslave them,” 3 The Debates in the

Several State Conventions on the Adoption of the

Federal Constitution 380 (Jonathan Elliot ed., 2d ed.

1836)) and Patrick Henry (“The great object is, that

every man be armed,” id. at 386) — and answered by

the Amendment. The how was mandates, statutory

specifications, subsidies for the poor, and inspections

— never a possession ban on a type of arm. Cook

County’s and Connecticut’s bans fail on both

questions: their why (reducing civilian stocks of

militia-suitable arms) is the precise evil the founders

legislated against, and their how (categorical

prohibition) has no forebear in the relevant period.

Under Bruen’s allocation of the burden upon

proponents of firearms regulations to produce a

tradition of historical analogues, Respondents’ case is

at an end. 597 U.S. at 24; Hemani, 146 S. Ct. at 1685–

86.

III. Merely Asserting the Banned Arms Are

“Dangerous and Unusual” Fails to Apply the

Tests Mandated by Heller-Bruen.

A. The tradition is one of manner-of-carry, and

it is conjunctive.

The phrase “dangerous and unusual weapons”

emanates from a specific body of law regulating the

manner of carrying arms, not their possession. Heller

grounded the principle in “the historical tradition of

prohibiting the carrying of ‘dangerous and unusual

weapons.’” 554 U.S. at 627 (emphasis added)

(collecting authorities). The root of that tradition

traces back to the Statute of Northampton, which

commanded that Englishmen “bring no force in affray

of the peace, nor to go nor ride armed by night nor by

day, in Fairs, Markets, nor in the presence of the

Justices or other Ministers,” upon pain of forfeiting

their armour to the King. 2 Edw. 3, c. 3 (1328) (Eng.),

quoted in Bruen, 597 U.S. at 40. The offense lay in how

and where arms were borne — armed “in affray of the

peace,” to the terror of the people — not in what arms

a subject could own: the settled English

understanding by the eighteenth century was that “no

Wearing of Arms is within the Meaning of [the Statute

of Northampton], unless it be accompanied with such

Circumstances as are apt to terrify the People.” 1

William Hawkins, A Treatise of the Pleas of the Crown

136 (1716), quoted in Bruen, 597 U.S. at 45. Every

source in Heller’s discussion of “dangerous and

unusual weapons” concerns how arms were carried.

None of that discussion pertains to banning

possession of an arm. Moreover, the phrase itself

states “a conjunctive test: A weapon may not be

banned unless it is both dangerous and unusual.”

Caetano v. Massachusetts, 577 U.S. 411, 417 (2016)

(Alito, J., concurring in the judgment). 5

B. A weapon in common use cannot be

“dangerous and unusual.”

Because Heller “positioned the two in opposition,” a

weapon “‘in common use for lawful purposes’ cannot

be ‘dangerous and unusual’” — “the two descriptors

are mutually exclusive.” ANJRPC, 183 F.4th at 234

(striking New Jersey’s “assault firearms” ban, N.J.

Stat. Ann. §§ 2C:39-1(w), 2C:39-5(f) (West 2018), as

applied to the Colt AR-15, and striking in full its ban

on magazines holding more than ten rounds, id. §§

2C:39-1(y), 2C:39-3(j)) (quoting Heller, 554 U.S. at

627). Bruen compels that conclusion by holding that

colonial-era characterizations of handguns as

“dangerous and unusual” could “provide no

justification” for restricting arms that are today

“unquestionably in common use.” 597 U.S. at 47. An

arm owned by tens of millions of law-abiding

Americans cannot be “unusual.”

Nor may “unusual” be manufactured as a

consequence of governmental prohibition. The term

must mean unusual among the arms law-abiding

citizens actually choose — not a rarity that legal

suppression itself produced. Were it otherwise,

5 The Second Circuit reached the same practical result in the

companion case by a different route: rejecting the conjunctive

reading urged by Justice Alito’s Caetano concurrence as resting

on a “non-binding” concurrence, it held that the historical

dangerous-and-unusual exception “encompasses those arms that

legislators determined were unusually dangerous because of

their characteristics.” Grant v. Lamont, 153 F.4th 213, 233 (2d

Cir. 2025) (companion case), cert. granted sub nom. Grant v.

Higgins, No. 25-566 (June 30, 2026). But a rifle owned by tens of

millions cannot be “unusual” under any formulation of the test,

conjunctive or not. See Part III.B, infra.

government could ban an arm into unusualness and

then cite the unusualness it created as the

justification; the constitutional baseline would be

whatever the last generation of prohibitions left

standing — whether addressed by a court or not.

Common use is measured by the choices of a free

people, not by the success of past confiscations.

CONCLUSION

The judgments below should be reversed. Arms

that bear a reasonable relationship to the

preservation or efficiency of a well regulated militia —

the ordinary individual arms suitable for the common

defense and in common use by law-abiding citizens —

lie at the core of the Second Amendment’s protection,

and a State may not prohibit them. The historical

tradition of regulating “dangerous and unusual

weapons” is a tradition governing the manner of

carrying arms and the genuinely exotic; it has never

sustained, and does not now permit, a prohibition on

arms in common use. A prohibition imposed because

those arms are useful for the common defense is

contrary to the Second Amendment’s text, purpose,

and history.

Respectfully submitted,

KENNETH T. CUCCINELLI, II

Counsel of Record