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

Supreme Court briefSep 4, 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.,

RONNELL HIGGINS, et al.,

Petitioners,

Respondents.

On Writ of Certiorari to the United States Courts of

Appeals for the Second and Seventh Circuits

BRIEF OF AMICUS CURIAE JAVIER

HERRERA, M.D., IN SUPPORT OF

PETITIONERS

Thomas R. McCarthy

Gilbert C. Dickey

Counsel of Record

Taylor A.R. Meehan

Cody Ray Milner

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

gilbert@consovoymccarthy.com

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the Second and Fourteenth Amendments

guarantee the right to possess commonly used

semiautomatic rifles.

TABLE OF CONTENTS

Question Presented.......................................................i

Table of Contents ........................................................ ii

Table of Authorities ................................................... iii

Interest of Amicus Curiae ........................................... 1

Summary of Argument ................................................ 2

Argument ..................................................................... 4

The plain text of the Second Amendment

covers Dr. Herrera’s possession of common

rifles in the home .............................................. 4

II. History refutes—rather than supports—a

tradition of banning commonly owned

firearms ............................................................. 7

A. Semiautomatic rifles are common

civilian arms ................................................ 8

B. There is a historical tradition allowing

citizens to keep commonly owned rifles

at home ....................................................... 11

C. Regulations

restricting

unusual

weapons and when citizens may carry

weapons outside their homes are not

analogous to banning common weapons

inside their homes ..................................... 18

Conclusion .................................................................. 25

iii

TABLE OF AUTHORITIES

Cases

Andrews v. State,

50 Tenn. 165 (1871) ............................................. 15

Aymette v. State,

21 Tenn. 154 (1840) ................................. 16, 21, 22

Bevis v. City of Naperville,

85 F.4th 1175 (7th Cir. 2023) ... 2, 3, 10, 17, 21, 23

Bliss v. Commonwealth,

12 Ky. 90 (1822) ................................................... 22

Caetano v. Massachusetts,

577 U.S. 411 (2016) ............................................. 10

Cockrum v. State,

24 Tex. 394 (1859) ............................................... 21

District of Columbia v. Heller,

554 U.S. 570 (2008) .................... 2, 3, 4, 6, 7, 8, 11,

12, 15, 16, 17, 18, 23

English v. State,

35 Tex. 473 (1871) ................................... 15, 16, 21

Friedman v. City of Highland Park,

136 S.Ct. 447 (2015) .............................................. 9

Garland v. Cargill,

602 U.S. 406 (2024) ....................................... 17, 23

Haile v. State,

38 Ark. 564 (1882) ............................................... 21

Harrel v. Raoul,

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

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) ............................. 8

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................................... 6

McDonald v. State,

102 S.W. 703 (Ark. 1907) .................................... 21

Miller v. Bonta,

542 F. Supp. 3d 1009 (S.D. Cal. 2021)................ 10

Nat’l Ass’n for Gun Rts. v. Lamont,

153 F.4th 213 (2d Cir. 2025) ......................... 11, 23

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

597 U.S. 1 (2022) ............. 4, 7, 8, 18, 19, 22, 23, 24

Nunn v. State,

1 Ga. 243 (1846)................................................... 21

O’Neill v. State,

16 Ala. 65 (1849) .................................................. 20

Presser v. Illinois,

116 U.S. 252 (1886) ....................................... 13, 14

Sir John Knight’s Case,

87 Eng. Rep. 75, 76 (K.B. 1686) .......................... 19

Smith & Wesson Brands, Inc. v. Estados Unidos

Mexicanos, 605 U.S. 280 (2025) ............................ 9

Snope v. Brown,

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

Staples v. United States,

511 U.S. 600, 603 (1994) ..................................... 17

State v. Chandler,

5 La. Ann. 489 (1850) .......................................... 15

State v. Huntly,

25 N.C. 418 (1843) ............................................... 20

State v. Kerner,

107 S.E. 222 (N.C. 1921) ............................... 16, 22

State v. Reid,

1 Ala. 612 (1840) .................................................. 22

State v. Workman,

14 S.E. 9 (W. Va. 1891) ....................................... 16

United States v. Miller,

307 U.S. 175 (1939) ......................... 3, 8, 12, 16, 21

United States v. Rahimi,

602 U.S. 680 (2024) ............................................. 24

Wilson v. State,

33 Ark. 557 (1878) ............................................... 16

Wolford v. Lopez,

146 S.Ct. 2032 (2026) ................................ 2, 4, 6, 7

Young v. Hawaii,

992 F.3d 765 (9th Cir. 2021) (en banc) ............... 12

Statutes

1813 Ky. Acts 100, ch. 89, §1 ..................................... 24

26 U.S.C. §5841(b) ..................................................... 25

26 U.S.C. §5845(b) ..................................................... 25

26 U.S.C. §5861 .......................................................... 25

Dick Act, 32 Stat. 775 (Jan. 21, 1903) ...................... 13

English Bill of Rights, 1 W. & M., ch. 2, §7, in 3 Eng.

Stat. at Large (1689) ........................................... 12

Militia Act of 1792, 1 Stat. 271 (May 8, 1792).......... 13

Militia Act of 1803, 2 Stat. 207 (Mar. 2, 1803) ......... 13

Militia Act of 1862, 12 Stat. 597 (July 17, 1862)...... 13

Statute of Northampton, 2 Edw. 3, c. 3 (1328) ......... 20

Statute of Winchester, 13 Edw. 1, st. 2, c. 5 (1285) . 12

Constitutional Provisions

U.S. Const. art. I, §8 .................................................. 15

U.S. Const. amend. II .............................................. 2, 4

Treatises

Blackstone, Commentaries on the Laws of England

(1769) ................................................................... 18

Burn, The Justice of the Peace, and Parish Officer

(1762) ................................................................... 19

Cooley, General Principles of Constitutional Law

(Rothman ed. 1981) ............................. 6, 14, 15, 16

Cooley, Treatise on the Constitutional Limitations

(5th ed. 1883) ....................................................... 14

Cunningham, A New and Complete Law Dictionary

(1764) ................................................................... 19

Hawkins, Pleas of the Crown (1716) ....................... 19

Hening, The New Virginia Justice (1795) ................ 20

Rawle, A View of the Constitution of the United

States of America (1829) .................................... 20

Pomeroy, An Introduction to the Constitutional Law

of the United States (1868) .................................. 15

Story, Commentaries on the Constitution of the

United States (1833) ............................................ 14

vii

Webb, The Office and Authority of a Justice of Peace

(1736) ................................................................... 20

Works of the Honourable James Wilson (1804) ........ 20

Other Authorities

Amended Complaint, Herrera v. Raoul, No. 1:23-cv532 (N.D. Ill. 2023) ................................................ 6

American Bar Association, ABA Profile of the Legal

Profession (2022) ................................................. 10

Baude & Leider, The General-Law Right to Bear

Arms, 99 Notre Dame L. Rev. 1467 (2024) ........ 15

Brief for Appellants, Herrera v. Raoul, No. 23-1793

(7th Cir. 2023) ....................................................... 5

English, 2026 National Firearms Survey (Aug. 26,

2026)..................................................................... 10

Gross, How the AR-15 Became the Bestselling Rifle in

the U.S., NPR (Apr. 20, 2023) ............................. 10

Historical Firearm Laws (Doc. 63-1), Herrera v.

Raoul, No. 1:23-cv-532 (N.D. Ill. 2023) .. 13, 24, 25

Klarevas Declaration, Herrera v. Raoul, No. 1:23-cv532 (N.D. Ill. 2023) .............................................. 10

Leider, Deciphering the “Armed Forces of the United

States,” 57 Wake Forest L. Rev. 1195 (2022) ..... 15

Leider, Federalism and the Military Power of the

United States, 73 Vand. L. Rev. 989 (2020) ....... 14

Malcolm, To Keep and Bear Arms: The Origins of an

Anglo-American Right (1994) ............................. 12

National Center for Education Statistics, Teacher

Characteristics and Trends (2022) ..................... 10

INTEREST OF AMICUS CURIAE

Dr. Javier Herrera works as an emergencymedicine physician and a volunteer medic for a

Chicago-area SWAT team. He has long been a lawabiding gun owner directly burdened by the Cook

County ban at issue here. He owns semiautomatic

handguns and AR-15 rifles for lawful purposes

including hunting, sport shooting, training with his

SWAT team, and self defense. But Cook County

makes it a crime for him to keep his firearms and

standard ammunition in his Chicago home. That inthe-home ban makes regular training with an AR-15

practically impossible, including standard weapons

training with his SWAT team. Dr. Herrera has

therefore brought a Second Amendment challenge to

the same Cook County firearms ban, along with other

state- and city-level prohibitions on AR-15-style rifles.

See Herrera v. Raoul, No. 23-1793 (7th Cir.).1

Dr. Herrera, like many others in Cook County,

has a direct and substantial interest in the

constitutional question presented here. There should

be no dispute that commonly owned firearms and

standard ammunition may be kept in law-abiding

Americans’ homes. In his own case, Dr. Herrera

presented a substantial historical record showing just

that. He submits this brief to bring that historical

record to the Court’s attention. Cook County’s claim

that the Nation has a tradition of prohibiting ordinary

citizens from possessing commonly owned rifles in

1 Under Rule 37.6, no counsel for a party authored this brief in

whole or in part, and no person other than amicus curiae or his

counsel made a monetary contribution to its preparation or

submission.

their homes is ahistorical. The history points in

exactly the opposite direction. At the time of the

Founding and after, American citizens were expected

to possess common arms to defend themselves and

their communities, to know how to use those common

arms, and to keep them readily available at home.

SUMMARY OF ARGUMENT

I. The Second Amendment “guarantee[s] the

individual right to possess and carry weapons in case

of confrontation.” District of Columbia v. Heller, 554

U.S. 570, 592 (2008). The Amendment provides that

“the right of the people to keep and bear arms, shall

not be infringed.” U.S. Const. amend. II. The plain

text of this Amendment protects the right of lawabiding citizens to keep one of the most popular

firearms in the United States in their homes. But in

the Seventh Circuit, these common civilian weapons

are not even “Arms.” Bevis v. City of Naperville, 85

F.4th 1175 (7th Cir. 2023). That wayward approach

has already been rejected by this Court. See Wolford

v. Lopez, 146 S.Ct. 2032, 2049 (2026). The first

question in a Second Amendment case is “simply

whether a challenged law” is covered by the “plain

text.” Id. Cook County’s ban on possessing commonly

owned civilian rifles at home violates the plain text.

II.A-B. Categorical bans on keeping common

firearms in the home are irreconcilable with the

Nation’s history of firearms regulation. Historically

weapons “typically possessed by law-abiding citizens

for lawful purposes” are protected. Heller, 554 U.S. at

625. By every measure this Court has ever used, AR15-style rifles are common. There are tens of millions

in circulation for lawful purposes, and they are lawful

in 41 States. And history shows that from the colonial

era through the Founding and beyond, civilians were

not just permitted to keep commonly owned firearms

in their homes; they were required to do so for both

their own self defense and the common defense of

their communities. That tradition is consistent with

the Second Amendment’s animating principle of

ensuring a citizenry capable of military service, rather

than relying exclusively on a standing army. See

United States v. Miller, 307 U.S. 175, 178-79 (1939).

Yet the Seventh Circuit has forged a detour around

common use and ignored the militia acts. The Seventh

Circuit announced that arms could be banned because

they are “useful in military service.” Bevis, 85 F.4th at

1194. That test is historically backwards.

II.C. Nor can the relevant history justify

banning in-home possession of common civilian arms.

Historically, laws regulated when civilians could carry

arms beyond their homes, not within their homes.

Public-carry regulations of Bowie knives and the like

never reached inside the home. Nor did they reach

common arms useful for both an individual’s self

defense and the collective defense. Such regulations

for firearms “highly unusual in society at large,” 554

U.S. at 627, bear no resemblance to Cook County’s

criminalization of the keeping of commonly owned

rifles in law-abiding citizens’ homes.

ARGUMENT

The plain text of the Second Amendment

covers the possession of common rifles in

the home.

A. This Court employs a two-step framework for

Second Amendment cases. See New York State Rifle &

Pistol Association v. Bruen, 597 U.S. 1, 24 (2022). The

first step is to ask whether the “plain text of the

Amendment’s language” covers the regulated conduct.

Wolford, 146 S.Ct at 2043 (quoting Bruen, 597 U.S. at

24). That is: does the law apply to “the people,” does it

concern “any form of ‘Arms,’ i.e., any weapon

customarily used for offensive or defensive purposes,”

and does it restrict the “keep[ing]” or “bear[ing]” of

those arms. Wolford, 146 S.Ct. at 2043-44. If it does,

then it is “presumptively unconstitutional,” and a

government must show that its regulation is

consistent with “the historical understanding of the

codified right.” Id. at 2044.

Cook County’s law flunks step one. Law-abiding

citizens like Dr. Herrera cannot keep commonly

owned rifles in their homes. That ban on the

possession of a bearable arm by the people necessarily

implicates the Second Amendment’s plain text. See

Bruen, 597 U.S. at 32; Heller, 554 U.S. at 628-29.

B. To illustrate what the challenged bans

“mean[] in practice,” consider how the Cook County

ban impacts Dr. Herrera. See Wolford, 146 S.Ct. at

2048. Dr. Herrera knows from first-hand experience

how quickly the need for self defense can arise. During

his medical residency in Cook County, Illinois, an

armed attacker entered the hospital and killed Dr.

Herrera’s attending physician and two others. See

Appellant-Br. (R.63) at 5, Herrera v. Raoul, No. 231793 (7th Cir. 2023). Dr. Herrera was present that day

and rendered aid in the aftermath of the shooting. Id.

That was not the last time Dr. Herrera’s work

brought him close to armed violence. To serve his

community, Dr. Herrera chose to volunteer as a SWAT

team medic, accompanying a team that responds to

hostage situations, active shooters, and high-risk

warrants. Id. The officers carry AR-15 rifles. Id. at 6.

Dr. Herrera’s job is to provide medical care, not law

enforcement. But doing that job safely sometimes

requires knowing what to do with the weapons around

him. For his own “safety and everyone else’s safety,”

Dr. Herrera wants to be confident handling the AR-15

rifles carried by the officers around him. Id. at 7. If an

officer is injured, Dr. Herrera may need to

“immediately secure, unload, and make safe” that

officer’s rifle. Id. This is not a speculative

hypothetical—on past missions, Dr. Herrera has been

asked to secure AR-15-style rifles while officers

attended to other matters. Id. Ordinarily, a medic in

Dr. Herrera’s position should attend weapons training

with his SWAT team to prepare for just that scenario.

But as a practical reality, not in Cook County.

Cook County bans Dr. Herrera from keeping his

rifle in his home for self defense and makes ordinary

training needlessly difficult. Because Dr. Herrera

cannot keep his rifle at home, participating in a

training session with it requires an extraordinary

detour: Dr. Herrera would have to drive outside Cook

County to retrieve his lawfully owned rifle, return for

training, drive back outside the county to return his

rifle, and then return home. On a normal day, that

takes more than four hours. Dr. Herrera cannot

regularly make that drive given his professional

obligations.

Like Petitioners, Dr. Herrera has challenged

Cook County’s in-home ban. See Am. Compl. (Doc.

103), Herrera v. Raoul, No. 1:23-cv-532 (N.D. Ill.

2023). He simply asks to keep inside his own home a

firearm owned by millions of other Americans—to

defend himself and to remain proficient with it.

Cook County’s ban burdens conduct at the core of

the right. “[T]he inherent right of self-defense [is]

central to the Second Amendment right.” Heller, 554

U.S. at 628. And that right applies “most notably ...

within the home,” McDonald v. City of Chicago, 561

U.S. 742, 780 (2010) (plurality op.), “where the need

for defense of self, family, and property is most acute,”

Heller, 554 U.S. at 628. And the right to keep and bear

arms “implies the learning to handle and use them in

a way that makes those who keep them ready for their

efficient use.” Cooley, General Principles of

Constitutional Law 271 (Rothman ed. 1981); see

Heller, 554 U.S. at 617-18.

And Dr. Herrera has unusually concrete reasons

to value that freedom. He has seen what happens

when an armed gunman walks through a hospital

door and fires on a crowd. He has experienced

situations where violent criminals are armed. He

knows well that “survival might well depend on the

availability of a firearm to ward off assailants.”

Wolford, 146 S.Ct. at 2042. The Second Amendment

protects the right of ordinary citizens to keep arms for

precisely that most basic reason—so that when

confronted with violence, a law-abiding person need

not be helpless in his own defense.

C. The Seventh Circuit’s holding that Dr.

Herrera’s in-home possession of an AR-15 did not

implicate the plain text of the Second Amendment

“border[ed] on the frivolous” at the time, Heller, 554

U.S. at 582, and this Court rebuked its approach last

term. And yet, the Seventh Circuit has concluded that

AR-15s are not “arms” covered by the Second

Amendment’s plain text. It reached this conclusion by

importing an additional inquiry into “the

understanding of the scope of the right” into the first,

plain text step. Bevis, 85 F.4th at 1193. As this Court

has since said, any such inquiry was “out of place at

Bruen’s first step,” where “the question is simply

whether a challenged law falls within the Second

Amendment’s plain text.” Wolford, 146 S.Ct. at 2049

(cleaned up). Since the challenged bans fall within the

plain text, they are “presumptively unconstitutional.”

Id. at 2044.

II.

History refutes—rather than supports—a

tradition of banning commonly owned

firearms.

No history could justify the government’s

insistence that its ban “is consistent with the Nation’s

historical tradition of firearm regulation.” Bruen, 597

U.S. at 24. When assessing historical regulations,

courts must ask “how and why the regulations burden

a law-abiding citizen’s right to armed self-defense,”

because “whether modern and historical regulations

impose a comparable burden on the right of armed

self-defense and whether that burden is comparably

justified are central considerations when engaging in

an analogical inquiry.” Bruen, 597 U.S. at 29 (cleaned

up). Applied here, there is no historical tradition of

banning commonly owned firearms from law-abiding

Americans’ homes. History points in the opposite

direction—before and after the Founding, law-abiding

citizens were expected to have common firearms

suitable for their own defense and the common

defense of their communities in their homes.

Semiautomatic

civilian arms.

rifles

are

common

The Second Amendment protects possession of

commonly owned weapons in the home while

tolerating regulations of “dangerous and unusual

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

So while the possession of machine guns or shortbarreled shotguns may be regulated, id. at 625-27,

there is no similar historical tradition for banning “the

sorts of weapons” that are “‘in common use’” entirely

from law-abiding citizens’ homes. Id. at 627 (quoting

Miller, 307 U.S. at 179); see also Bruen, 597 U.S. at 21

(“[T]he Second Amendment protects the possession

and use of weapons that are in common use at the

time.” (cleaned up)); Heller v. District of Columbia

(“Heller II”), 670 F.3d 1244, 1272 (D.C. Cir. 2011)

(Kavanaugh, J., dissenting) (Dangerous and unusual

weapons “are equivalent to those weapons not ‘in

common use.’”). Governments thus may not ban the

possession of “weapons that are unquestionably in

common use today” in law-abiding citizens’ homes.

Bruen, 597 U.S. at 47.

This case is simple under that common-use test.

“The AR-15 is the most popular semi-automatic rifle

in America and is therefore undeniably in common use

today.” Harrel v. Raoul, 144 S.Ct. 2491, 2492 (2024)

(Thomas, J., statement respecting denial of certiorari)

(cleaned up). “Americans today possess an estimated

20 to 30 million AR-15s,” and “AR-15s are legal in 41

of the 50 States, meaning that the States ... that

prohibit AR-15s are something of an outlier.” Snope v.

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

statement respecting denial of certiorari). Indeed, just

one year ago, this Court unanimously acknowledged

that “[t]he AR-15 is the most popular rifle in the

country,” Smith & Wesson Brands, Inc. v. Estados

Unidos Mexicanos, 605 U.S. 280, 297 (2025), citing an

article that claimed over 20 million AR-15-style rifles

had been sold in the United States in just the last few

decades, see Gross, How the AR-15 Became the

Bestselling Rifle in the U.S., NPR (Apr. 20, 2023),

perma.cc/2R8E-XM5Y. Over a decade ago, “[r]oughly

five

million

Americans

own[ed]

AR-style

semiautomatic rifles” and “[t]he overwhelming

majority of citizens who own and use such rifles do so

for lawful purposes, including self-defense and target

shooting.” Friedman v. City of Highland Park, 136

S.Ct. 447, 449 (2015) (Thomas, J., dissenting from

denial of certiorari). But in more recent years, one

national survey found that 30.2% of gun owners—

about 26.4 million Americans—have owned an AR-15

or similarly styled rifle, “with approximately 40

million AR-15 type rifles and 20 million other

similarly styled rifles owned in total.” English, 2026

National Firearms Survey 2 (Aug. 26, 2026). And the

State’s own estimate in Dr. Herrera’s case conceded

that semiautomatic gun owners (6.4 million2) are

more common than lawyers (1.3 million3), teachers (4

million4), and Ford F-150s.5 Even by cautious

estimates, that number is far greater than the

“approximately 200,000 civilians [that] owned stun

guns” at issue in Caetano v. Massachusetts, 577 U.S.

411, 420 (2016) (Alito, J., concurring in judgment).

But the Seventh Circuit declined to consider just

how common it is for Americans to own semiautomatic

rifles. In Bevis, the Seventh Circuit “decline[d] to base

[its] assessment of the constitutionality of these laws

on numbers alone,” Bevis, 85 F.4th at 1198-99.

Insisting that this Court’s test was both “slippery” and

“circular,” the court made much of Heller’s statement

that M-16s can be banned. Id. at 1185-86, 1190, 1198.

From that statement, the court drew a distinction

between “military and civilian weaponry” that

excluded consideration of which weapons civilians

actually use for lawful purposes. Id. at 1201.

The Seventh Circuit’s maneuver equates

commonly owned civilian firearms with military-issue

fully-automatic firearms, such as an M-16. A civilian

cannot claim the Constitution allows him to possess

that military-issued firearm whenever and wherever

because those arms may be regulated pursuant to the

Klarevas Decl. (Doc. 52-4) ¶27 & n.23, Herrera v. Raoul, No.

1:23-cv-532 (N.D. Ill. 2023).

3 American Bar Association, ABA Profile of the Legal Profession

22 (2022), perma.cc/WFN4-6RKF.

4 National

Center for Education Statistics, Teacher

Characteristics and Trends (2022), perma.cc/L8HX-NW25.

5 Miller v. Bonta, 542 F. Supp. 3d 1009, 1022 (S.D. Cal. 2021),

vacated 2022 WL 3095986 (9th Cir.)

“historical tradition” of regulating “dangerous and

unusual weapons.” Heller, 554 U.S. at 627 (emphasis

added). But that same tradition protects civilian

weapons that are commonly used for lawful purposes.

Similarly, the Second Circuit has dismissed this

Court’s commonality inquiry as a “trivial counting

exercise,” then ruled that “historical tradition”

supports banning arms that are “unusually dangerous

because of their characteristics.” Nat’l Ass’n for Gun

Rts. v. Lamont, 153 F.4th 213, 233 (2d Cir. 2025)

(cleaned up). It went on to explain that “unusually

dangerous” encompasses whatever arms “are so

lethal” that legislators can conclude they “are not used

or intended to be used for lawful purposes.” Id. at 234.

But this approach returns to a world before

Heller. An arm that is “chosen by American society”

and not “highly unusual in society at large” does not

become unusual simply because a legislature thinks

that it is particularly dangerous. Heller, 554 U.S. at

627-28. “[T]he American people have considered the

handgun to be the quintessential self-defense

weapon,” id. at 629, no matter how dangerous the

District of Columbia thought it was. And they have

similarly chosen semiautomatic rifles like the AR-15

as the quintessential self-defense rifle.

There is a historical tradition allowing

citizens to keep commonly owned rifles

at home.

The Seventh Circuit and Second Circuit also

ignored a long historical tradition of keeping long

arms in the home. The Statute of Winchester

commanded in 1285 that “every man have in his house

arms for keeping the peace.” 13 Edw. 1, st. 2, c. 5

(1285). The English right “began as a duty”—the

longstanding obligation of ordinary subjects to keep

arms for the common defense was “transformed into a

right” at the Glorious Revolution. Malcolm, To Keep

and Bear Arms: The Origins of an Anglo-American

Right 1, 9 (1994). The 1689 Bill of Rights guaranteed

“[t]hat the subjects which are Protestants may have

arms for their defence,” English Bill of Rights, 1 W. &

M., ch. 2, §7, in 3 Eng. Stat. at Large 441 (1689)—a

guarantee

adopted

after

prior

monarchical

disarmaments, see Heller, 554 U.S. at 593.

Both before and after the Founding, civilians

were required to keep long guns that could be used for

common defense in their homes. In his case, Dr.

Herrera collected these laws, which show that

tradition is precisely the opposite of what the Seventh

Circuit claimed. See Historical Firearm Laws (Doc.

63-1), Herrera v. Raoul, No. 1:23-cv-532 (N.D. Ill.

2023). Historically, militia laws required citizens to

furnish themselves with muskets, carbines, or rifles,

as well as the required ammunition, and to train with

them, or face fines. See Miller, 307 U.S. at 178-82

(collecting examples); see also Historical Firearm

Laws, supra, at 83-156. Various colonial legislatures

from Georgia to Connecticut even required citizens to

keep or carry arms. See Young v. Hawaii, 992 F.3d

765, 795-96 (9th Cir. 2021) (en banc) (collecting

statutes), vacated on other grounds, 142 S.Ct. 2895

(2022); see also Historical Firearm Laws, supra, at 83156.

This tradition continued after the Founding. The

first Militia Act, for example, required civilians to

“provide [themselves] with a good musket or firelock

… or with a good rifle,” along with “twenty balls suited

to the bore of [the] rifle, and a quarter of a pound of

powder.” 1 Stat. 271, §1 (May 8, 1792). Later militia

acts maintained and expanded these requirements.

E.g., Militia Act of 1803, §2, 2 Stat. 207 (Mar. 2, 1803)

(“[E]very citizen duly enrolled in the militia, shall be

constantly provided with arms, accoutrements, and

ammunition, agreeably to the direction of the said

act[.]”); Militia Act of 1862, 12 Stat. 597 (July 17,

1862) (including black Americans). It was not until

1903 that Congress repealed the 1792 Act. See Dick

Act, 32 Stat. 775 (Jan. 21, 1903).

These laws fit with the Second Amendment’s

reference to a “well-regulated militia.” U.S. Const.

amend. II. The “militia” refers to “all citizens capable

of bearing arms” for our collective defense, not a

standing army. Presser v. Illinois, 116 U.S. 252, 265

(1886); see Leider, Federalism and the Military Power

of the United States, 73 Vand. L. Rev. 989, 1008-09

(2020) (“the militia” referred “to the entire national

able-bodied population subject to military service”).

The English experience with unrepresentative armed

factions raised concerns that a standing army could

subvert the Constitution. See Cooley, Treatise on the

Constitutional Limitations 428-29 (5th ed. 1883) (“A

standing army is peculiarly obnoxious in any free

government … more dreaded by the people [in

England] as an instrument of oppression than a

tyrannical monarch or any foreign power”); Cooley,

supra, at 271 (describing standing army as

“condemned by the traditions and sentiments of the

people, as being … dangerous to the liberties of the

people” and that “general preparation of the people for

the defence of their institutions with arms is

preservative of them”). The answer to this concern

was to guarantee civilians the right to keep and bear

arms so that the citizenry could contribute to the

common defense. The militia is the “natural defence of

a free country,” Justice Story explained, and “[t]he

right of the citizens to keep and bear arms has justly

been considered, as the palladium of the liberties of a

republic.” 3 Story, Commentaries on the Constitution

of the United States §1890 (1833).

Put another way, by ensuring ordinary citizens

remained proficient with commonly used arms, the

country’s defense was not dependent only on

professional soldiers but also aided by able-bodied

civilians. Civilian possession and familiarity with

arms suitable for common defense ensured a citizenry

prepared to take up those arms in the nation’s defense

when war came. See Leider, Deciphering the “Armed

Forces of the United States,” 57 Wake Forest L. Rev.

1195, 1279 (2022); see generally Baude & Leider, The

General-Law Right to Bear Arms, 99 Notre Dame L.

Rev. 1467 (2024). And the States could not “prohibit

the people from keeping and bearing arms so as to

deprive the United States of their rightful resource for

maintaining the public security, and disable the

people from performing their duty to the general

government.” Presser, 116 U.S. at 265; see U.S. Const.

art. I, §8, cl. 15-16 (describing Congress’s power to call

and organize militias).

Through the nineteenth century, jurists

reiterated that the Second Amendment ensured that

the people could keep and bear firearms to be ready

for the common defense. Michigan Chief Justice

Thomas Cooley wrote that “the meaning of the

provision undoubtedly is, that the people, from whom

the militia must be taken, shall have the right to keep

and bear arms; and they need no permission or

regulation of law for the purpose.” Cooley, General

Principles, supra, at 271 (quoted in Heller, 554 U.S. at

616-17); see also Pomeroy, An Introduction to the

Constitutional Law of the United States 152-53 (1868)

(quoted in Heller, 554 U.S. at 618) (“[A] militia would

be useless unless the citizens were enabled to exercise

themselves in the use of warlike weapons.”). The

Tennessee Supreme Court likewise explained that

arms “are to be kept, evidently with a view that the

citizens making up the yeomanry of the land, the body

of the militia, shall become familiar with their use in

times of peace, that they may the more efficiently use

them in times of war.” Andrews v. State, 50 Tenn. 165,

178 (1871). The Louisiana Supreme Court praised the

open bearing of arms as “calculated to incite men to a

manly and noble defence of themselves, if necessary,

and of their country.” State v. Chandler, 5 La. Ann.

489, 490 (1850). And the Texas Supreme Court, while

sustaining limits on Bowie knives and similar

weapons, anchored its decision by differentiating

those implements as “belong[ing] to no military

vocabulary.” English v. State, 35 Tex. 473, 477 (1871).

This history confirms that the Second

Amendment protects, at a minimum, in-home

possession of common civilian weapons used for lawful

purposes that could also be useful as “ordinary

military equipment.” See Heller, 554 U.S. at 577-78,

624-25 (quoting Miller, 307 U.S. at 179). The militia

were civilians who, when summoned, “were expected

to appear bearing arms supplied by themselves and of

the kind in common use at the time.” Miller, 307 U.S.

at 179. Those arms being useful for both self and

collective defense was a feature, not a defect, of the

Second Amendment’s protection. See, e.g., Wilson v.

State, 33 Ark. 557, 560 (1878) (cannot “prohibit the

citizen from wearing or carrying a war arm”); Aymette

v. State, 21 Tenn. 154, 158 (1840) (“arms … usually

employed in civilized warfare”); State v. Kerner, 107

S.E. 222 (N.C. 1921) (“arms” are those “whose use was

necessary for their protection against the usurpation

of illegal power—such as rifles, muskets, shotguns,

swords, and pistols”); English, 35 Tex. at 474 (“Arms

of what kind? Certainly such as are useful and proper

to an armed militia.”); State v. Workman, 14 S.E. 9, 10

(W. Va. 1891) (“in regard to the kind of arms … it must

be held to refer to the weapons of warfare to be used

by the militia”); Cooley, General Principles, supra, at

271 (“arms … suitable for the general defence of the

community against invasion or oppression”). The

militia acts confirm that popular civilian firearms

that could contribute not just to an individual’s self

defense but also to the common defense were expected

to be kept in the home.

This history does not mean that military-issue

weapons—undoubtedly useful for the common

defense—can also be freely possessed without any

regulation. Heller recognized that the government

regulates fully automatic machine guns like the M16

and other “sophisticated arms that are highly unusual

in society at large.” 554 U.S. at 627. Such weapons,

with fully automatic capabilities for cover fire and

other military operations, are beyond the individual

right protected by the Second Amendment. But the

semiautomatic AR-15 is definitively not the M16. It “is

the civilian version of the military’s M-16 rifle, and is,

unless modified, a semiautomatic weapon,” Staples v.

United States, 511 U.S. 600, 603 (1994) (emphasis

added). “Semiautomatic firearms, which require

shooters to reengage the trigger for every shot, are not

machineguns.” Garland v. Cargill, 602 U.S. 406, 410

(2024). As Judge Brennan observed in Bevis: “The AR15 is a civilian, not military, weapon. No army in the

world uses a service rifle that is only semiautomatic.”

Bevis, 85 F.4th at 1222 (Brennan, J., dissenting).

History refutes the Seventh Circuit’s conflation

of longstanding regulations of military-issued

firearms with commonly used civilian firearms, which

also happen to be useful for common defense. In the

Seventh Circuit, governments may ban any weapon

that seems “militaristic.” 85 F.4th at 1199. This

conclusion gets history and Heller backwards. History

shows that popular civilian weapons useful for both

self defense and common defense were expected to be

in the home. And these weapons have long been

considered part of the core protection of the Second

Amendment. Heller understood this history,

distinguishing between commonly owned civilian

arms and fully automatic weapons that are “highly

unusual in society at large.” Heller, 554 U.S. at 627.

Regulations

restricting

unusual

weapons and when citizens may carry

weapons outside their homes are not

analogous

banning

common

weapons inside their homes.

The courts below claimed that each ban on AR15-style rifles could be justified by analogizing to

public-carry regulations of novelty weapons, like

Bowie knives, and also by twentieth-century

machinegun laws. But when measured against the

“how” and “why” methodology established by this

Court, each body of history invoked by the Seventh

Circuit in Bevis and the Second Circuit in Lamont fails

to justify either court’s conclusions.

1. Laws regulating “dangerous and unusual”

weapons are no answer to the historical expectation

that common weapons useful for common defense

would be kept in the home.

Those laws regulated public carry, not in-home

possession. The “historical tradition of prohibiting the

carrying of ‘dangerous and unusual weapons’” is thus

entirely irrelevant to any analysis here. Heller, 554

U.S. at 627 (emphasis added); see Bruen, 597 U.S. at

47. Heller cited treatises describing the common-law

“offence of riding or going armed, with dangerous or

unusual weapons”—the “dangerous and unusual

weapons” of the modern formulation—which “is a

crime against the public peace, by terrifying the good

people of the land.” 4 Blackstone, Commentaries on the

Laws of England 148-49 (1769) (emphasis added).

And the Statute of Northampton describes the

offense’s shape: A person could neither “go nor ride

armed by night nor by day, in fairs, markets ... upon

pain to forfeit their armour.” 2 Edw. 3, c. 3 (1328).

Such laws—regulating what people do outside their

homes—are no analogue to a complete in-home ban of

common firearms.

Nor did this tradition reach ordinary carry of

“common weapons.” 1 Burn, The Justice of the Peace,

and Parish Officer 15-16 (1762); see Bruen, 597 U.S.

at 47; see also “Affray,” 1 Cunningham, A New and

Complete Law Dictionary (1764). Legal commentator

William Hawkins took pains to make clear that this

offense reached only those people who sought to

terrify the citizenry and did not cover citizens carrying

common arms in a manner not meant to intimidate.

“[N]o wearing of Arms is within the meaning of this

Statute, unless it be accompanied with such

Circumstances as are apt to terrify the People,” and

“persons of quality are in no danger of offending

against this statute by wearing common weapons.”

1 Hawkins, A Treatise of the Pleas of the Crown 13536 (1716) (emphasis added). The exemption for

“common weapons” is no accident of phrasing—it is

the direct ancestor of Heller’s common-use rule,

embedded in the very tradition the governments

invoke.

This tradition did not even reach every manner

of carrying weapons. It reached only those meant to

terrify the public. When a man was prosecuted for

walking armed into a church, the King’s Bench

explained that the statute’s “meaning ... was to punish

people who go armed to terrify the King’s subjects.” Sir

John Knight’s Case, 87 Eng. Rep. 75, 76 (K.B. 1686)

(emphasis added). The Founders knew and

implemented the same rule—a rule restricted to

public carry that terrified the citizenry and not

reaching possession of normal weapons. James Wilson

defined the offense as carrying “dangerous and

unusual weapons, in such a manner, as will naturally

diffuse a terrour among the people.” 3 The Works of

the Honourable James Wilson 79 (1804). William

Rawle agreed that the only punishable conduct under

this offense was “the carrying of arms abroad by an

individual, attended with circumstances giving just

reason to fear that he purposes to make an unlawful

use of them.” Rawle, A View of the Constitution of the

United States of America 126 (1829). Colonial and

founding-era justice-of-the-peace manuals said the

same. See Webb, The Office and Authority of a Justice

of Peace 92-93 (1736); Hening, The New Virginia

Justice 18 (1795). Even if carrying a dangerous arm

was “unusual,” the citizen remained “at perfect liberty

to carry his gun” “[f]or any lawful purpose—either of

business or amusement,” unless he had a “wicked

purpose.” State v. Huntly, 25 N.C. 418, 422-23 (1843).

It was “the wicked purpose—and the mischievous

result—which essentially constitute[d] the crime.” Id.

at 423; see O’Neill v. State, 16 Ala. 65, 67 (1849)

(similar).

2. These limitations continued through the

nineteenth century. Carry restrictions did not reach

into law-abiding citizens’ homes. Indeed, between

1819 and 1927, many of these statutes expressly

protected possession and use of weapons while

traveling or while at home. An 1881 Arkansas law, for

example, expressly permitted carrying Bowie knives

and other weapons while “on a journey, and on his

premises.” McDonald v. State, 102 S.W. 703, 703 (Ark.

1907); see Haile v. State, 38 Ark. 564, 566 (1882)

(recognizing the same premises exception).

Even outside the home, these laws were

concerned with particular weapons that were not

considered suitable for common defense. Both Bevis

and Lamont grounded their historical analyses in the

variety of laws that banned “dangerous and

concealable” weapons like “Bowie knives,” “caneswords,” “slingshots,” “metal knuckles,” and more.

See, e.g., Bevis, 85 F.4th at 1201. And true enough, a

handful of courts from that era passed on the validity

of those laws. But the courts upholding those laws did

so because the particular weapons at issue—Bowie

knives, clubs, and the like—were unlike the “ordinary

military equipment” that would be commonly kept at

home by civilians. Aymette, 21 Tenn. at 158; see Miller,

307 U.S. at 178. Indeed, so unlike normal military

weapons were these items that if “a soldier on duty

[was] found with any of these things [such as dirks,

daggers, or brass-knuckles] about his person, he

would be punished for an offense against discipline.”

English, 35 Tex. at 477.

These laws thus targeted dangerous and unusual

concealed weapons and never broadly prohibited

keeping common weapons useful for individual and

collective defense. Aymette, 21 Tenn. at 159-60; see,

e.g., Cockrum v. State, 24 Tex. 394, 402 (1859)

(affirming that the “right to carry a bowie-knife for

lawful defense is secured, and must be admitted,”

despite its being “an exceeding destructive weapon”);

Nunn v. State, 1 Ga. 243, 251 (1846) (explaining that

prohibitions “against bearing arms openly” are

unconstitutional and “void,” even if concealed carry

could be banned); Bliss v. Commonwealth, 12 Ky. (2

Litt.) 90, 90, 93-94 (1822) (invalidating statute

proscribing concealed carry of “a pocket pistol, dirk,

large knife, or sword in a cane”). And the

constitutionality of these laws also depended on the

presence of exceptions preserving the right to keep

arms for self defense, for the collective defense, and

within a person’s own home. See State v. Kerner, 107

S.E. 222, 224 (N.C. 1921) (“[t]he maintenance of the

right to bear arms is a most essential one to every free

people and should not be whittled down by technical

constructions”); Aymette, 21 Tenn. at 159. The earliest

concealed-carry statutes in existence demonstrate

this point—Kentucky’s 1813 concealed-carry law

exempted persons “travelling on a journey.” 1813 Ky.

Acts 100, ch. 89, §1. When examining a similar law,

the Alabama Supreme Court acknowledged that

limited restrictions on concealed carry could not

constitutionally stretch into sweeping prohibitions on

keeping arms for defense. “[A] statute which, under

the pretence of regulating, amounts to a destruction of

the right, or which requires arms to be so borne as to

render them wholly useless for the purpose of defence,

would be clearly unconstitutional.” State v. Reid, 1

Ala. 612, 616-17 (1840).

Absolute bans on the Nation’s most common type

of rifle—even within one’s own home and when kept

for self defense—do not fall under this tradition of

concealed-carry limitations. By their own terms, these

narrower public-carry restrictions cannot be likened

to a prohibition on possession of common rifles. See

Bruen, 597 U.S. at 48 (emphasizing that such a law

“restricted only concealed carry, not all public carry,”

and that “its restrictions applied only to certain

‘unusual or unlawful weapons’”); Heller, 554 U.S. at

629; see also Historical Firearm Laws, supra, at 20-55,

227-468 (compiling public-carry statutes). The

restrictions on carrying Bowie knives and caneswords did not “impose a comparable burden on the

right of armed self-defense” as an at-home ban does.

Bruen, 597 U.S. at 29.

3. Twentieth-century machinegun statutes are

also no analogue. They regulated automatic fire, not

semiautomatic rifles like the AR-15-style rifles at

issue here. See Historical Firearm Laws, supra, at

469-559 (statutes); contra Bevis, 85 F.4th at 1201-02;

Lamont, 153 F.4th at 240-47. Each of those laws

restricts fully automatic weaponry. The Uniform

Machine Gun Act, for example, exempted

semiautomatic rifles of certain calibers and would not

have covered today’s AR-15-style rifles. See, e.g.,

Historical Firearm Laws, supra, at 519-38.

Similarly, federal law treats a pistol or rifle as a

restricted “machinegun” only if capable of firing

automatically, 26 U.S.C. §§5845(b), 5861, and imposes

strict registration requirements on the machinegun’s

“manufacturer, importer, and maker,” id. §5841(b).

Nothing about the argument against bans on AR-15style rifles casts any doubt on those restrictions. As

these laws show, governments can regulate the

uncommon fully automatic functionality of firearms

without banning a whole class of popular

semiautomatic rifles. See Staples, 511 U.S. at 603,

611-12; Cargill, 602 U.S. at 410-11. What the

machinegun laws cannot do is supply an analogue for

banning arms those very laws left untouched. Such

“narrow” historical precursors cannot justify “a broad

prohibitory regime.” United States v. Rahimi, 602 U.S.

680, 700 (2024).

A pair of enactments aimed at limiting automatic

weaponry cannot establish an enduring American

tradition of banning semiautomatic rifles. And the

chronology confirms the point—the first modern stateenacted “assault weapon” ban did not appear until

1989. Thus, it is the modern ban—not the AR-15-style

rifle—that is the true aberration. The “lack of a

distinctly similar historical regulation” for the

common rifles here “is relevant evidence that the

challenged regulation is inconsistent with the Second

Amendment.” Bruen, 597 U.S. at 26.

The Seventh Circuit and Second Circuit sought

to justify sweeping prohibitions on the right to keep

common weapons in the home based on supposed

traditions assembled from mismatched fragments—

medieval lance restrictions, Bowie-knife carry laws,

and machinegun registration. None of these laws

reveal any lasting principle that justifies banning Dr.

Herrera’s rifle from Dr. Herrera’s home. But the

history that these courts ignore confirms a right to

keep common semiautomatic rifles in the home:

Citizens were expected to keep long guns suitable for

self defense and common defense in their homes.

The decisions below thus fail at every turn. Bevis

treats an arm’s military utility as a reason to exclude

it from the Amendment, even though the Founding

generation required citizens to keep arms suitable for

common defense. The courts below erred by invoking

regulations of dangerous persons, concealed carry,

and exceptional weapons to justify something history

did not recognize—a categorical ban on peaceable

citizens keeping common arms in their homes. That is

not analogical reasoning under Bruen. It is interest

balancing at a higher level of generality, with history

supplying the vocabulary rather than the rule. The

Second Amendment does not permit government to

disarm millions of law-abiding Americans because

their chosen rifle is effective, popular, or useful for the

very purposes for which citizens have long kept arms.

CONCLUSION

The judgments below should be reversed.

Respectfully submitted,