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

Nos. 25-238, 25-566

In the

Supreme Court of the United States

CUTBERTO VIRAMONTES, et al.,

Petitioners,

v.

COOK COUNTY, ILLINOIS, et al.,

Respondents.

EDDIE GRANT, JR., et al.,

Petitioners,

v.

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 A ppeals for the Seventh and Second Circuits

BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Richard P. Hutchison

Landmark Legal Foundation

2405 Grand Boulevard,

Suite 420

Kansas City, MO 64108

Matthew C. Forys

Counsel of Record

Michael J. O’Neill

Landmark Legal Foundation

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 554-6100

matt@landmarklegal.org

Attorneys for Amicus Curiae

September 4, 2026

121258

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

STATEMENT OF INTEREST OF

AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

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

I.

The Circuit Courts Misapplied the Bruen

Test by Failing to Treat A R-15s as

Arms and Failing to Identify a Sufficient

Historical Tradition to Ban an Entire

Category of Commonly Used Rifles . . . . . . . . . . . 4

II. Historical Bans, Affray Laws, and Writings

of the Founding Generation Demonstrate

the Abnormality of These Bans . . . . . . . . . . . . . . 7

A. The historical record does not provide

sufficiently similar analogs to the

bans at issue in this case . . . . . . . . . . . . . . . . 7

B. The Founders expected ordinary

citizens to possess arms to provide

for the common defense . . . . . . . . . . . . . . . . 11

ii

Table of Contents

Page

C. Affray is not a historical tradition

that can be used t o justi f y the

bans under the Bruen test . . . . . . . . . . . . . 13

III. Semi-Automatic Rifles are not “Dangerous

and Unusual” Weapons . . . . . . . . . . . . . . . . . . . . 15

A. T he M16 is not a n appropr iat e

comparison to the AR-15 because

of fundamental differences in how

the weapons operate . . . . . . . . . . . . . . . . . . 15

1.

The rates of fire and modes of

fire of the M16 and AR-15 are

essential differences between the

weapons . . . . . . . . . . . . . . . . . . . . . . . . . 16

2. The Seventh and Second Circuits

emphasize other similar ities

which are not sufficient to argue

AR-15s are like M16s . . . . . . . . . . . . . . 19

B. Cook County’s and Connecticut’s

assault weapons bans list features

which do not make weapons more or

less “dangerous and unusual.” . . . . . . . . . . 24

C. The Second Amendment applies to

modern weapons even though they are

technologically distinct from those at

the time of the Founding . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iii

TABLE OF CITED AUTHORITIES

Cases

Page

Aymette v. State,

21 Tenn. 154 (1840) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Barnett v. Raoul,

180 F.4th 1035 (7th Cir 2026) . . . . 2, 4, 5, 6, 8, 9, 15, 16,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 21, 25, 26, 27

Bevis v. City of Naperville,

85 F.4th 1175 (7th Cir. 2023). . . . . . . . 2, 4, 6, 7, 8, 9, 15,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 21

Bianchi v. Brown,

111 F.4th 438 (4th Cir. 2024) . . . . . . . . . . . . . . . 5, 6, 25

Brown v. Entertainment Merchants Ass’n,

564 U.S. 786 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Cockrum v. State,

24 Tex. 394 (1859) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . 1, 6, 12, 15, 23

Hanson v. Smith,

120 F.4th 223 (D.C. Cir. 2024) . . . . . . . . . . . . . . . . . . 26

Haynes v. State,

24 Tenn. 120 (1844) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iv

Cited Authorities

Page

Kolbe v. Hogan,

849 F.3d 114 (4th Cir. 2017) . . . . . . . . . . . . . . 17, 18, 24

Nat’l Ass’n of Gun Rights v. Lamont,

153 F.4th 213 (2d Cir. 2025) . . . . 2, 5, 7, 8, 9, 10, 15, 16,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 21, 25, 27

Nunn v. State,

1 Ga. 243 (1846) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

597 U.S. 1 (2022) . 1, 2, 3, 4, 5, 6, 7, 8, 10, 13, 16, 26, 27

Smith & Wesson Brands, Inc. v.

Estados Unidos Mexicanos,

605 U.S. 280 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 20

Snope v. Brown,

145 S. Ct. 1534 (2025) . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

State v. Huntly,

25 N.C. 418 (1843) . . . . . . . . . . . . . . . . . . . . . . 13, 14, 27

United States v. Miller,

307 U.S. 174 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

United States v. Rahimi,

602 U.S. 680 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14

Viramontes v. Cook Cnty,

No. 24-1437, 2025 U.S. App. LEXIS 13331

(7th Cir. June 2, 2025) . . . . . . . . . . . . . . . . . . 1, 2, 13, 17

v

Cited Authorities

Page

Wilson v. State,

33 Ark. 557 (1878) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Constitutional Provisions

U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28

U.S. Const. Amend. II . . . 1, 2, 7, 10, 11, 25, 26, 27, 28, 29

Statutes and Regulations

26 U.S.C. § 5845(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

26 U.S.C. § 5845(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cook County, Ill., Code § 54-211 . . . . . . . . . . . . . . . . . . . 22

Conn. Gen. Stat. § 53-202a(1)(A)-(I) . . . . . . . . . . . . . . . 22

The Firearm Owners’ Protection Act of 1986,

Pub. L. No. 99-308, 100 Stat. 449 (1986) . . . . . . . . . . . 8

National Firearms Act of 1934, Pub. L. No. 73-474,

48 Stat. 1236 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Militia Act of 1792, ch. 33, 1 Stat. 271 (1792) . . . . . . . . . 20

Omnibus Crime Control and Safe Streets Act of

1968, Pub. L. No. 90-351, 82 Stat. 197 (1968) . . . . . . . 8

vi

Cited Authorities

Page

Other Authorities

2 Edw. 3, c. 3 (1328) . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Acts and Laws of His Majesty’s Province of NewHampshire in New-England 2 (1761) . . . . . . . . . . . . . 14

Affray, Black’s Law Dictionary (12th ed. 2024) . . . . . . 13

Alexander Rose, Men of War: The American Soldier

in Combat at Bunker Hill, Gettysburg, and Iwo

Jima 20 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

BAR MK 4 Hunter, Browning, https://w w w.

browning.com/products/firearms/rifles/bar/barmk-4-hunter.html (last visited Aug. 31, 2026) . . . . . 21

Brief for Landmark Legal Foundation as Amicus

Curiae Supporting Petitioners, Smith & Wesson

Brands, Inc. v. Estados Unidos Mexicanos, 605

U.S. 280 (2025) (No. 23-1141) . . . . . . . . . . . . . . . . . . . 20

Brief for Respondent in Opposition to Writ of

Certiorari, Viramontes v. Cook County, No. 25238 (Oct. 29, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17

C. Sunstein, On Analogical Reasoning, 106 Harv.

L. Rev. 741 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

vii

Cited Authorities

Page

David B. Kopel, Rational Basis Analysis of “Assault

Weapon” Prohibition, 20 J. Contemp. L. 381

(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Del. Declaration of Rights § XVIII (1776), in

Richard L. Perry, Sources of Our Liberties (1959) . 11

Dep’t of the U.S. A r my, FM 3 -22 .9: Rif le

Marksmanship M16-/M4-Series Weapons (2008) . . 19

Do Glocks Have a Safety? Debunking Common

Myths, CYA Supply Co., https://www.cyasupply.

com/blogs/articles/do-glocks-have-a-safetydebunking-common-myths (last visited Aug. 31,

2026) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

E. Gregory Wallace, “Assault Weapon” Myths, 43

S. Ill. U. L.J. 193 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 20

F. Schauer & B. Spellman, Analogy, Expertise, and

Experience, 84 U. Chi. L. Rev. 249 (2017) . . . . . . . . 16

G19 Gen 6, Glock, https://us.glock.com/en/products/

commercial-firearms/pistols/g19-gen6 (last

visited Aug. 21, 2026) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Glock 19, GlobalMilitary.Net, https://w w w.

globalmilitary.net/firearms/glock-19/ (last visited

Aug. 31, 2026) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

viii

Cited Authorities

Page

Jason Hitchcock, Bullet Caliber Chart: Smallest

to Largest Rounds, Survival Stoic (Apr. 14,

2026), https://survivalstoic.com/bullet-sizes-andcaliber-charts/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Letter from John Adams to Abigail Adams (July

7, 1775), in 1 Adams Family Correspondence

(Lyman H. Butterfield, ed., 1963) . . . . . . . . . . . . . . . 12

Mass. Declaration of Rights § XVII (1780), in 3

The Federal and State Constitutions, Colonial

Charters and Other Organic Laws (Francis N.

Thorpe ed., Washington Government Printing

Office 1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Michael P. O’Shea, Modeling the Second Amendment

Right to Carry Arms (I): Judicial Tradition and

the Scope of “Bearing Arms” for Self-Defense, 61

Am. U. L. Rev. 585 (2012) . . . . . . . . . . . . . . . . . . . . . . 14

Md. Declaration of Rights § XXV (1776), in 3

The Federal and State Constitutions, Colonial

Charters and Other Organic Laws (Francis N.

Thorpe ed., Washington Government Printing

Office 1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

N.C. Declaration of Rights § XVII (1776), in 5

The Federal and State Constitutions, Colonial

Charters and Other Organic Laws (Francis N.

Thorpe ed., Washington Government Printing

Office 1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ix

Cited Authorities

Page

N.H. Bill of Rights § XXIV (1784), in 4 The Federal

and State Constitutions, Colonial Charters and

Other Organic Laws (Francis N. Thorpe ed.,

Washington Government Printing Office 1909) . . . . 11

P230-M17, SIG Sauer, https://www.sigsauer.com/

p320-m17.html (last visited Aug. 31, 2026) . . . . . . . . 23

Pa. Declaration of Rights § XIII (1776), in 5 The

Federal and State Constitutions, Colonial

Charters and Other Organic Laws (Francis N.

Thorpe ed., Washington Government Printing

Office 1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Post WWII Rifle Development, National Parks

Service: Springfield Armory National Historic

Site (July 22, 2020), https://www.nps.gov/spar/

learn/historyculture/post-wwii-rifle.htm . . . . . . . . . 18

P rog ram Acquisition Executive Maneuver

Ground, M17/M18 9mm Modular Handgun

System, PAEMG: Project Manager Soldier

Lethality Portfolio, https://cpeground.army.

mil/Equipment/Equipment-Portfolio/PM-SLPortfolio/M17-M18-Modular-Handgun-System/

(last visited Aug. 31, 2026) . . . . . . . . . . . . . . . . . . . . . 22

x

Cited Authorities

Page

Rifle Caliber Chart: A Ballistics Performance

and Usage Guide for Hunting, Sportsman’s

Warehouse, https://w w w.sportsmans.com/

rifle-caliber-performance-chart?msockid=27b

2b144ed8562a022f8a750ec0e63e8 (last visited

Aug. 31, 2026) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

T. Barlow, The Justice of the Peace: A Treatise

(1745) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The Federalist (Jacob E. Cooke ed., 1961):

No. 29 (Alexander Hamilton) . . . . . . . . . . . . . . . . . . . 12

No. 46 (James Madison) . . . . . . . . . . . . . . . . . . . . . . . 12

Va. Bill of Rights § XIII (1776), in 7 The Federal

and State Constitutions, Colonial Charters and

Other Organic Laws (Francis N. Thorpe ed.,

Washington Government Printing Office 1909) . . . . 11

1

STATEMENT OF INTEREST OF AMICUS CURIAE1

Amicus Cur iae Landmark Legal Foundation

(“Landmark”) is a national public-interest law firm

committed to preserving the principles of limited

government, separation of powers, federalism, originalist

construction of the Constitution and individual rights.

Landmark has previously filed briefs in support of Second

Amendment rights, most recently in Smith & Wesson

Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280

(2025).

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case is about whether the government may ban

one of the most commonly owned arms in the Nation’s

history by calling them almost the same as military arms.

The answer should be no. The opinions below have strayed

from this Court’s focus on text and historical tradition,

shifting the burden from the government to the individual.

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

laid the analytical framework for determining the

validity of firearms restrictions—considering text first

and history second. N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 24 (2022), then distilled it into a clearly

articulated test. The Seventh Circuit, in Viramontes v.

Cook Cnty., No. 24-1437, 2025 U.S. App. LEXIS 13331 (7th

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

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amicus Curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

2

Cir. June 2, 2025), incorrectly held that Cook County has

the authority to implement a ban on an expansive category

of firearms. It decided that its analysis under the Bruen

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

2023), foreclosed this issue. Viramontes, No. 24-1437, 2025

U.S. App. LEXIS 13331, at *5 (7th Cir. June 2, 2025). And

shortly after this Court granted certiorari in Viramontes,

the Seventh Circuit overturned a district court ruling and

upheld an assault weapons ban in Barnett v. Raoul, 180

F.4th 1035 (7th Cir. 2026). The Second Circuit similarly

upheld an assault weapons ban in Nat’l Ass’n of Gun

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

But these decisions are incorrect. The Seventh Circuit

in both Bevis and Barnett (for Viramontes said little more

than that it would not overrule Bevis) have misapplied

the Bruen test. At step one of the test, Bevis declared

military weapons are not “Arms” within the meaning

of the Second Amendment before finding AR-15s to be

military weapons. Bevis, 85 F.4th at 1193-95. Bevis briefly

discussed the second step of Bruen, and Barnett did so

in greater depth, but again, both courts determined that

historical tradition still justified a ban on these rifles.

However, the courts shifted the burden of proof on the

plaintiffs, in contradiction to the Bruen test. See Barnett,

180 F.4th at 1075 (Brennan, C.J., dissenting); Bevis, 85

F.4th at 1194.

The historical tradition the circuit courts emphasized

is not sufficiently analogous. The laws provided as

historical examples are either prohibitions on types of

conduct with weapons, bans on classes of weapons which

were later overturned, or bans too recent to create a

historical tradition. The first group are limited behavioral

3

restrictions and should not be viewed as establishing an

expansive tradition of banning the manufacture, sale,

transfer, and ownership of a class of firearms. The second

group cannot create a historical tradition specifically

because they were overturned. The third group is

irrelevant under Bruen.

The lack of historical examples of bans on rifles

is telling. The founding generation expected citizens

to keep arms suited to militia service. The early state

declarations of rights and the Federalist Papers confirm

as much. Respondents further compare the AR-15 to the

M16 with supposed similarities, necessary to establish

that the AR-15 is a “dangerous and unusual” weapon. But

they are insufficient. And Respondents would sweep up

many other rifles under their definition and cut against

historical examples of legal, civilian arms similar to

military counterparts. Finally, the Second Amendment,

like other constitutional rights, is technologically neutral

and applies as much to modern instruments as to those

present at the Founding.

The Court should reverse the decisions below, hold

that the banned semi-automatic rifles are protected arms,

and remand for entry of judgment for Petitioners.

4

ARGUMENT

I.

The Circuit Courts Misapplied the Bruen Test by

Failing to Treat AR-15s as Arms and Failing to

Identify a Sufficient Historical Tradition to Ban

an Entire Category of Commonly Used Rifles.

The Seventh Circuit, in both Bevis and Barnett,

misapplied the two-part Bruen test. In step one, Bruen

requires a court to first determine whether the “Second

Amendment’s plain text covers an individual’s conduct.”

Bruen, 597 U.S. at 24. If so, “the Constitution presumptively

protects that conduct.” Id. In step two, “[t]he government

must then justify its regulation by demonstrating that it is

consistent with the Nation’s historical tradition of firearm

regulation.” Id. The Bevis decision incorrectly determined

that AR-15s do not constitute “Arms” under the Second

Amendment and are thus not protected, failing step one.

See Bevis, 85 F.4th at 1195.

The Bevis court reasoned that “these assault weapons

and high-capacity magazines are much more like machine

guns and military-grade weaponry than they are like

the many different types of firearms that are used for

individual self-defense.” Bevis, 85 F.4th at 1195. The AR-15

is “almost the same gun as the M16,” a weapon not lawful

for civilian ownership. Id. at 1195. But there is an essential

distinction between the two: automatic firing capability.

The statutory definitions of machinegun and rifle under

the National Firearms Act hinge on this distinction. 26

U.S.C. § 5845(b)-(c).

By minimizing this and other distinctions, the Seventh

Circuit found the AR-15 failed the first step of the Bruen

5

test as an unprotected, “dangerous and unusual” firearm.

But this should have been addressed in step two. “Bruen

and Rahimi did not disturb the historically based ‘common

use’ test.” Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024),

cert. denied sub nom. Snope v. Brown, 145 S. Ct. 1534,

1534 (2025) (Kavanaugh, J., statement respecting denial

of certiorari). “Accordingly, the common use test more

properly belongs in Bruen’s second step, where courts

examine the Nation’s ‘historical tradition of firearm

regulation.’” Barnett, 180 F.4th at 1064 (Brennan, C.J.,

dissenting) (quoting Bruen, 597 U.S. at 24). The Second

Circuit in Lamont, in contrast to the Seventh Circuit,

addresses the “dangerous and unusual” question in step

two of Bruen. Lamont, 153 F.4th at 227.

The Seventh Circuit in Bevis claimed under their

framework, that even if an AR-15 was an Arm protected

under the plain text of the Second Amendment, it would

still fail the second step. The circuit court produced a long

list of laws in an attempt to show that there is a historical

tradition of regulating analogous weaponry for private

citizens. Bevis, 85 F.4th at 1200-02. In fact, their own

examples highlight a lack of historical tradition, given

that most of the examples they find important enough to

list do not even pertain to firearms. Trying to generalize

any historical restrictions on weapons to justify Cook

County’s ban “waters down the right.” United States v.

Rahimi, 602 U.S. 680, 740 (2024) (Barrett, J., concurring).

The Seventh Circuit’s application of step two of the

Bruen test erroneously shifts the burden of proof from

the government to the individual. The Bevis court stated

that the first step required plaintiffs to show “that the

weapons addressed in the pertinent legislation are Arms

6

that ordinary people would keep at home for purposes

of self-defense, not weapons that are exclusively or

predominantly useful in military service, or weapons that

are not possessed for lawful purposes.” Bevis, 85 F.4th at

1194. But that “incorrectly shifts the burden of proof that

the firearms are used for self-defense onto the plaintiffs.

After they satisfy their burden on Bruen step one, a

firearm is ‘presumptively’ protected.” Barnett, 180 F.4th

at 1075 (Brennan, C.J., dissenting) (quoting Bruen, 597

U.S. at 24). This characterization of Heller and Bruen by

the Seventh Circuit not only shifts the burden on citizens;

it reverses the nature of constitutional rights. See Bianchi

v. Brown, 111 F.4th 438 (4th Cir. 2024), cert. denied sub

nom. Snope v. Brown, 145 S. Ct. 1534, 1536-37 (2025)

(Thomas, J., dissenting from denial of certiorari); Barnett,

180 F.4th at 1075 (Brennan, C.J., dissenting).

The Bevis court erred once again in the second step.

The Seventh Circuit argued historical regulations on

firearms consistently reserved “dangerous and unusual”

arms for the military, while leaving many alternatives for

use by civilians. Bevis, 85 F.4th at 1197–1202; see Barnett,

180 F.4th at 1041. But the AR-15 is that type of civilian

alternative arm, and that is why the derived M16 was

specifically created to fill the military role AR-15s could

not. The district court in Barnett noted, “no military has

ever issued AR-15s to its troops, largely because of their

different firing modes.” Barnett, 180 F.4th at 1042.

As explained further below, Cook County relies on the

misapplication of the Bruen test by the Seventh Circuit,

apparent in both Bevis and Barnett.

7

II. Historical Bans, Affray Laws, and Writings

of the Founding Generation Demonstrate the

Abnormality of These Bans.

A.

The historical record does not provide

sufficiently similar analogs to the bans at issue

in this case.

As noted above, Bevis argued that even if the AR-15

is an “Arm” protected by the plain text of the Second

Amendment, Illinois’s ban survives at the second step

of Bruen. The Bevis court assembled a catalogue of

ordinances and prohibitions to supposedly provide the

requisite tradition. The Second Circuit does much the

same in Lamont, utilizing an almost identical historical

record. Yet not one of them is a ban on an entire class of

civilian firearms approaching the scope of the law at issue.

Cook County fails to pass Bruen’s second step because it

cannot present a single historical regulation that is similar

in the scope of the weapons it reaches, nor in the extreme

burden it places upon Second Amendment rights.

Bevis claims that there exists “a long tradition . . .

supporting a distinction between weapons and accessories

designed for military or law-enforcement use, and

weapons designed for personal use.” Bevis, 85 F.4th at

1202. According to Bevis, governments in the colonial and

nineteenth-century periods regulated when and where

arms could be fired or carried, and they wrote exceptions

into those laws for men bearing arms in an official capacity.

The majority cites many examples. Multiple cities banned

the discharge of any weapon, with exceptions for the

military. Id. at 1201. Bowie knives were regulated in

multiple states, and these laws likewise excepted the

8

armed forces. Id.; Lamont, 153 F.4th at 243-44; Barnett,

180 F.4th at 1048.

This tradition, according to Bevis and Lamont,

was not limited to the nineteenth century. The National

Firearms Act of 1934, Pub. L. No. 73-474, 48 Stat. 1236

(1934), imposed tax and registration requirements on

the weapons it covered, but exempted transfers to the

United States, the states, their territories and political

subdivisions, and peace officers. Bevis, 85 F.4th at 1202;

Lamont, 153 F.4th at 246. In the Omnibus Crime Control

and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat.

197 (1968), Congress restricted the sale and delivery of

machineguns and destructive devices (bombs, grenades,

mines, rockets, and missiles) and again spared items sold

to the United States or to a state. Bevis, 85 F.4th at 1202.

The Firearm Owners’ Protection Act of 1986, Pub. L.

No. 99-308, 100 Stat. 449 (1986), banned the sale of newly

manufactured machineguns, capping civilian holdings at

pre-1986 levels while leaving military and law enforcement

access untouched. Bevis, 85 F.4th at 1202.

These federal restrictions do not advance Cook

County’s case. Even under their misreading of the Bruen

test, the instances they cite are not relevant. Every federal

example the court provides comes from the twentieth

century, a period that falls outside the historical window

Bruen treats as probative. Bruen, 597 U.S. at 34-38.

Discharge ordinances are not relevant either. They

were not proscriptions on the ownership of firearms.

Instead, they were public safety necessities that did

not restrict the carry or ownership of firearms, just the

creation of noise which would confuse or frighten those

9

nearby. An ordinance against public discharge does not

compare with a complete ban on the ownership and sale

of a massive subset of civilian weapons. It is even less

compelling to cite an ordinance in Boston, the city where

the first civilians took up their own private arms and

began the American Revolution. Bevis, 85 F.4th at 1201.

Bowie knife restrictions similarly fail to provide a

historical tradition which could be used to justify Cook

County’s ban of a commonly used rifle. To begin, the

Arkansas Supreme Court overturned the prohibition

on the carrying of sidearms, including Bowie knives.

The court stated “[i]f cowardly and dishonorable men

sometimes shoot unarmed men with army pistols or

guns, the evil must be prevented by the penitentiary

and gallows, and not by a general deprivation of a

constitutional privilege.” Wilson v. State, 33 Ark.

557, 560 (1878) (emphasis added). As the Barnett court

acknowledged, a ban on the open carry of Bowie knives

was also struck down in Georgia by Nunn v. State, 1 Ga.

243 (1846). Barnett, 180 F.4th at 1049-50. Even if there

was no question about their constitutionality, none of the

cited laws prohibited the possession of these knives. Bevis,

85 F.4th at 1216 (Brennan, C.J., dissenting).

But the restrictions which were upheld do not provide

any more of a meaningful historical tradition for the

purposes of Cook County’s ban. As Bevis, Barnett, and

Lamont note, these laws prohibited the carrying of such

weapons, not their ownership and sale. See Bevis, 85 F.4th

at 1201; Barnett, 180 F.4th at 1048; Lamont, 153 F.4th at

243-44. The cases in Tennessee and Texas upholding these

restrictions, cited by Barnett, make this only more evident.

For example, the Supreme Court of Texas stated, “[h]e

who carries such a weapon, for lawful defence, as he may,

10

makes himself more dangerous to the rights of others.”

Cockrum v. State, 24 Tex. 394, 403 (1859) (emphasis

added). And the Tennessee Supreme Court noted “the

carrying of [Bowie knives] by truculent and evil disposed

persons . . . too often ended in assassination.” Haynes v.

State, 24 Tenn. 120, 122 (1844) (emphasis added). And a

Tennessee case cited by Lamont says much the same.

See Aymette v. State, 21 Tenn. 154, 159 (1840) (stating the

legislature could ban the carry of such an arm to protect

citizens from “the terror . . . unusual exhibition of arms

might produce, or . . . endanger[ment] by desperadoes

with concealed arms”).

It should be evident that these examples are

significantly different from the bans at issue here. The

cited restrictions are prohibitions on carrying weapons on

one’s person. Regardless of the constitutionality of these

bans, they are not comparable to a broader, categorical

ban on the manufacturing, sale, transfer, and ownership

of an entire class of firearms. The bans at issue here are

far more burdensome and sweeping on citizens’ Second

Amendment rights than the restrictions cited by the

circuit courts. While this Court has recognized that a

litigated regulation on firearms need not find “a dead

ringer” among “historical precursors,” it still must be

“analogous enough to pass constitutional muster.” Bruen,

597 U.S. at 30. The carry restrictions cited by the Seventh

and Second Circuits are simply too distinct from the

complete bans imposed here to be considered analogous.

Where prohibitions of this breadth have no meaningful

precursor across two centuries of American regulation,

the government has not carried the burden Bruen places

on them, and an inverse historical tradition is apparent in

all the bans they cannot find.

11

B. The Founders expected ordinary citizens

to possess arms to provide for the common

defense.

The Founders’ intellectual commitments show that

the Second Amendment was a protection of individual

rights rooted in a responsibility for collective defense.

This is borne out by preconstitutional documents, the

pivotal role of civilian militiamen in the Revolution, and the

Federalist Papers. The founding generation emphasized

the importance of proper armament for the defense of the

Republic. Before the drafting of the Constitution, seven

states included a prefatory bill or declaration of rights

to their framework of state government, with each one

enshrining protections for the common defense. 2 Also,

2. Va. Bill of Rights § XIII (1776), in 7 The Federal and State

Constitutions, Colonial Charters and Other Organic Laws 3812,

3814 (Francis N. Thorpe ed., Washington Government Printing

Office 1909); Pa. Declaration of Rights § XIII (1776), in 5 The

Federal and State Constitutions, Colonial Charters and Other

Organic Laws 3081, 3083 (Francis N. Thorpe ed., Washington

Government Printing Office 1909); Md. Declaration of Rights §

XXV (1776), in 3 The Federal and State Constitutions, Colonial

Charters and Other Organic Laws 1686, 1688 (Francis N.

Thorpe ed., Washington Government Printing Office 1909); N.C.

Declaration of Rights § XVII (1776), in 5 The Federal and State

Constitutions, Colonial Charters and Other Organic Laws 2787,

2788 (Francis N. Thorpe ed., Washington Government Printing

Office 1909); Mass. Declaration of Rights § XVII (1780), in 3 The

Federal and State Constitutions, Colonial Charters and Other

Organic Laws at 1888, 1892 (Francis N. Thorpe ed., Washington

Government Printing Office 1909); N.H. Bill of Rights § XXIV

(1784), in 4 The Federal and State Constitutions, Colonial Charters

and Other Organic Laws 2453, 2456 (Francis N. Thorpe ed.,

Washington Government Printing Office 1909); Del. Declaration

of Rights § XVIII (1776), in Sources of Our Liberties 338, 339

(Richard L. Perry ed., American Bar Foundation 1959).

12

the Court has previously recognized that “nine state

constitutional provisions written in the 18th century or

the first two decades of the 19th,” used the formulation

“‘bear arms in defense of themselves and the state.’”

Heller, 554 U.S. at 584.

In the ensuing Revolutionary War, common citizens

became foot soldiers. After the Battle of Bunker Hill, John

Adams wrote to his wife, saying that British casualties

were “a glorious Proof of the Bravery of our Worthy

Countrymen.” Letter from John Adams to Abigail Adams

(July 7, 1775), in 1 Adams Family Correspondence 241, 241

(Lyman H. Butterfield, ed., 1963). “Virtually every man

at Bunker Hill brought his own firearm. . . . [A]n analysis

of the returns of thirty New England militia companies

finds that the overall rate of private ownership was at

least 75 percent and probably higher.” Alexander Rose,

Men of War: The American Soldier in Combat at Bunker

Hill, Gettysburg, and Iwo Jima 20 (2015). These men were

not armed with mere handguns.

The Federalist Papers communicate the necessity

of the right to bear arms, in aggregate, as a check on

the threat of enemies foreign or domestic. In Federalist

No. 29, Alexander Hamilton argues for the existence of

militias. His contention hinges on the belief that the people

must be “properly armed and equipped” as a necessity

for the protection of the Nation. The Federalist No. 29

at 184 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

In Federalist No. 46, James Madison envisions ordinary

citizens who, “with arms in their hands,” would be

capable of serving as a militia “fighting for their common

liberties.” The Federalist No. 46 at 321. The founding

generation, therefore, advocated an armed people which

would be capable of executing martial functions.

13

C.

Affray is not a historical tradition that can be

used to justify the bans under the Bruen test.

In addition to relying on the disanalogous historical

examples discussed above, Cook County also invokes “the

law of affray as adopted in early American jurisprudence”

to defend their ban on “assault weapons.” Brief for

Respondent in Opposition to Writ of Certiorari at 32,

Viramontes v. Cook County, No. 25-238 (Oct. 29, 2025).

The history of the law of affray originates in 14th Century

England. The Statute of Northampton, enacted in 1328,

states a man may “bring no force in affray of the peace,

nor to go nor ride armed . . . in Fairs, Markets, nor in

the presence of the Justices or other Ministers, nor in no

part elsewhere.” 2 Edw. 3, c. 3 (1328). The term “affray”

is defined as “[t]he fighting of two or more persons in some

public space to the terror of the people.” Affray, Black’s

Law Dictionary (12th ed. 2024).

Affray was interpreted in the United States in State

v. Huntly, 25 N.C. 418 (1843). Cook County claimed that

the question in Huntly (of whether an act was affray)

depended on “whether it was unusual ‘wherewith to be

armed and clad,’” and not “whether the weapon was

unusual to own.” Brief of Respondent in Opposition to Writ

of Certiorari at 32, Viramontes v. Cook County, No. 25238 (Oct. 29, 2025) (quoting Huntly, 25 N.C. at 422 (1843)).

It was neither. Huntly states that “[b]ut although a gun

is an ‘unusual weapon,’ it is to be remembered that the

carrying of a gun per se constitutes no offence.” Huntly,

25 N.C. at 422-23. Immediately following the quote which

Cook County cites, the Huntly court explicitly states that

“[i]t is the wicked purpose—and the mischievous result—

which essentially constitute the crime.” Id. at 423. Thus,

14

the primary question when considering whether the crime

of affray has been committed is whether there was an

unlawful purpose for being “armed and clad.” Id. at 422.

In this case, “[Huntly] had taken to the public roads on

horseback, armed with ‘a double barrelled gun,’ and had

uttered threats to kill one Ratcliff.” Michael P. O’Shea,

Modeling the Second Amendment Right to Carry Arms

(I): Judicial Tradition and the Scope of “Bearing Arms”

for Self-Defense, 61 Am. U. L. Rev. 585, 636 (2012).

Along with Huntly, Rahimi further repudiates Cook

County’s mischaracterization of affray:

Although the prototypical affray involved

fighting in public, commentators understood

affrays to encompass the offense of ‘arm[ing]’

oneself ‘to the Terror of the People,’ T. Barlow,

The Justice of the Peace: A Treatise 11 (1745).

Moreover, the prohibitions—on fighting and

going armed—were often codified in the same

statutes. E.g., 2 Edw. 3 c. 3; Acts and Laws of

His Majesty’s Province of New-Hampshire in

New-England 2 (1761).

United States v. Rahimi, 602 U.S. at 697. Affray is

inseparable from the act of fighting or making threats

while going armed. Huntly acknowledges the fact that

going about armed is not itself a crime. A “wicked

purpose” and “mischievous result” is necessary to cause

the “Terror of the People,” which is why fighting and

going armed were so often codified together, as Rahimi

notes. Huntly, 25 N.C. at 423; T. Barlow, The Justice

of the Peace: A Treatise 11 (1745); Rahimi, 602 U.S. at

697. Thus, the law of affray forms no greater a historical

15

tradition to defend the ban than the piecemeal examples

of disanalogous weapons restrictions cited by Bevis and

Barnett.

This Court has tied the analysis of “dangerous and

unusual” weapons to the concept of affray. See Heller, 554

U.S. at 627. This is reasonable, for carrying a “dangerous

and unusual” weapon would serve little purpose other

than to engage in terrorizing people. One could conclude

this about, for example, machineguns, grenade launchers,

or dirty bombs. But the same cannot be said of semiautomatic rifles owned by millions of Americans.

III. Semi-Automatic Rifles are not “Dangerous and

Unusual” Weapons.

A.

The M16 is not an appropriate comparison to

the AR-15 because of fundamental differences

in how the weapons operate.

A crucial aspect of the holdings in Barnett, Bevis, and

Lamont is the supposed similarity between the M16 and

the AR-15. For its part, the Bevis court felt “the AR-15

is almost the same gun as the M16 machine gun.” Bevis,

85 F.4th at 1195. “Both weapons share the same core

design, and both rely on the same patented operating

system,” with “the only meaningful distinction” being

“that the AR-15 has only semiautomatic capability . . .

while the M16 operates both ways.” Id. at 1195-96, 1195.

Barnett discussed many of the same features, including

similarities in muzzle velocity, ammunition, and effective

range, though the court did not include Bevis’s claim that

an AR-15 can fire up to 300 rounds per minute. Barnett,

180 F.4th at 1053-54. Lamont argues along much the same

16

lines as Barnett. Lamont explicitly states that there is no

evidence that “this distinguishing factor fundamentally

transforms the AR-15 into a weapon that is substantially

less dangerous than its military counterpart.” Lamont,

153 F.4th at 241. These courts thus place little emphasis

on the difference between the two rifles’ mode of fire

(semi-automatic versus automatic fire).

Cook County similarly contends that because

machineguns are bannable dangerous weapons, AR-15s

are also bannable because they are like machineguns.

The AR-15 and the M16 may be “like” one another in

many ways. But “[e]verything is similar in infinite ways to

everything else.” C. Sunstein, On Analogical Reasoning,

106 Harv. L. Rev. 741, 774 (1993). As this Court stated, “a

green truck and a green hat are relatively similar if one’s

metric is ‘things that are green.’” Bruen, 597 U.S. at 29

(citing F. Schauer & B. Spellman, Analogy, Expertise,

and Experience, 84 U. Chi. L. Rev. 249, 254 (2017)). Some

metrics must therefore be more important than others

when comparing AR-15s and M16s. If the AR-15 is not

sufficiently similar to machineguns in metrics which

are the most important, the argument that they are

“dangerous and unusual” collapses, regardless of whether

it is made at the first or second step of the Bruen test. And

this argument fails for a number of reasons.

1.

The rates of fire and modes of fire of the

M16 and AR-15 are essential differences

between the weapons.

A gun’s mode of fire sets its rate of fire–the number

of rounds it can fire per minute. As noted above, Cook

County and Bevis downplay the importance of the

17

difference between the two rifles’ modes of fire. Instead,

they claim that M16s and AR-15s both fire at a semiautomatic cyclic rate of 300 rounds per minute. See Brief

for Respondent in Opposition to Writ of Certiorari at 7,

Viramontes v. Cook County, No. 25-238 (Oct. 29, 2025);

Bevis, 85 F.4th at 1196. James Yurgealitis, an expert

witness, supposedly substantiated the 300-rounds-perminute claim in Viramontes and Bevis. This claim is not

unique to the Seventh Circuit; it has also been made by

the Fourth Circuit in Kolbe v. Hogan. 849 F.3d 114, 125

(4th Cir. 2017) (citation omitted).

As the Barnett dissent noted, Bevis’s claim has “not

aged well.” Barnett, 180 F.4th at 1063 (Brennan, C.J.,

dissenting). The word “cyclic” supplies the only clue to

how the number was derived. Citing a U.S. Army training

document, the dissent in Bevis explains cyclic fire:

[It is] a type of fire where “the gunner holds the

trigger to the rear while the assistant gunner

feeds ammunition into the weapon.” The cyclic rate

“produces the highest volume of fire the

machine gun can fire” and is a drastic step, as

it “can permanently damage the machine gun

and barrel and should be used only in case of

emergency.” It is difficult to see how a gunner

could fire an AR-15 cyclically. Because it is a

semiautomatic firearm, if the trigger were held

to the rear, the cyclic rate would be one round

per minute.

Bevis, 85 F.4th at 1223-1224 (Brennan, C.J., dissenting)

(internal citations omitted). The Chief Judge further

stated “the M16’s maximum semiautomatic effective

18

rate . . . [is] 45 rounds per minute—more than four times

slower than its maximum automatic effective rate.” Bevis,

85 F.4th at 1224 (Brennan, C.J., dissenting). Thus, there

is little reason to believe the AR-15’s actual rate of fire

is much greater than forty-five rounds per minute, and

certainly not the 300 rounds claimed by Bevis and Kolbe.

The difference in rates of fire between the weapons,

and the variance in the mode of fire which produces that

difference is significant. Cook County and the circuit

courts assert the AR-15 is “dangerous and unusual”

because it is like the military M16. Lamont stresses that

the AR-15 was “initially developed for modern military

combat.” Lamont, 153 F.4th at 240. But these claims ignore

a crucial reality—automatic fire is a key requirement for

military weapons. Indeed, this is why the AR-15 was not

adopted by the U.S. military. The U.S. Army has not

used a purely semi-automatic rifle as its standard-issue

infantry firearm since the M14 replaced the M1 Garand

in 1957. Post WWII Rifle Development, National Park

Service: Springfield Armory National Historic Site (July

22, 2020), https://www.nps.gov/spar/learn/historyculture/

post-wwii-rifle.htm. And the M14, the predecessor to the

M16, was adopted in part because the Army realized the

need for a rifle capable of automatic fire to replace the

exclusively semi-automatic M1. Id. The AR-15 does not

have this critical capability. It cannot fire anywhere near

as many rounds as an M16 in the same amount of time.

That distinction defeats the premise that the AR-15 is

“almost the same gun as the M16” and therefore bannable.

Bevis, 85 F.4th at 1195.

Lamont goes further. The Second Circuit implied

semi-automatics are actually more deadly at ranges

19

over twenty-five meters than automatic weapons. See

Lamont, 153 F.4th at 241. But this misses the point of the

“dangerous and unusual” analysis. The M16 is “dangerous

and unusual” not because at some specific range it may

outclass another firearm in “shots per target, trigger

pulls per hit, and time to hit.” Dep’t of the U.S. Army, FM

3-22.9: Rifle Marksmanship M16-/M4-Series Weapons,

§ 7-15 (2008). If the superiority of semi-automatic fire to

automatic at ranges over twenty-five meters is the metric

for the “dangerous and unusual” framework, any semiautomatic weapon would be swallowed up. The M16 is

“dangerous and unusual” not because of these statistics,

but because it is capable of devastating rates of fire which

are impossible for a semi-automatic rifle like the AR-15

to achieve.

2.

The Seventh and Second Circuits emphasize

other similarities which are not sufficient

to argue AR-15s are like M16s.

The circuit courts overstate the importance of other

differences, such as kinetic energy (the energy of the

bullet as it leaves the gun), caliber of ammunition, and

effective range. But these are not sufficient to prove the

AR-15 “dangerous and unusual.” And if they are, they

would swallow up an even larger portion of protected

firearms because of their comparability to military

weapons, as explained below.

The fact the AR-15 is similar to a military weapon

in certain specifications is not historically unique.

Throughout American history, civilians have been able to

purchase and own weapons nearly or completely identical

in function to weapons used by the military. And often,

firearms manufacturers emphasized these similarities.

20

See Brief for Landmark Legal Foundation as Amicus

Curiae Supporting Petitioners at 11, Smith & Wesson

Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280

(2025) (No. 23-1141).

At the Founding, the American citizen soldiers who

comprised the militia would have been expected to have

“ordinary military equipment” whose “use could contribute

to the common defense.” United States v. Miller, 307 U.S.

174, 178 (1939) (citation omitted); see Militia Act of 1792,

ch. 33, 1 Stat. 271 (1792) (requiring all citizens eligible

for enrollment to have “within six months thereafter . . .

a good musket or firelock”). There would have been no

difference between the common muskets utilized by the

Army and those owned by the civilian population. This

trend would continue throughout the nineteenth and into

the twentieth centuries. As one scholar stated,

The repeating rifles that first debuted in the

Civil War evolved into the lever action rifles

used by soldiers and civilians alike in the Old

West . . . . Like the modern AR-15, these rifles

had higher ammunition capacity and more rapid

rates of fire than their predecessors . . . . The

Remington Model 30 bolt-action sporting rifle

. . . was derived from the M1917 Enfield rifle

used by American soldiers in World War I. The

semiautomatic M1 Garand rifle and M1 carbine

were designed for military use in World War II,

Korea, and Vietnam. Civilian versions are sold

commercially for target shooting and hunting.

E. Gregory Wallace, “Assault Weapon” Myths, 43 S. Ill.

U. L.J. 193, 201 (2018). It should be further noted that

21

M1s are still commonly sold and would remain legal under

the Cook County and Connecticut Assault Weapons Bans,

despite the fact that the mass-produced civilian variant is

indistinguishable from its military variant.

These civilian-accessible weapons would undoubtedly

have had extremely similar or identical specifications

to their military counterparts. But factors such as an

identical range or caliber do not in themselves make a

rifle “dangerous and unusual.” Courts and legislatures

have not found such similarities relevant when instituting

restrictions on firearms. The federal government was

evidently unconcerned with them when deciding to sell

surplus M1s to the public. This history tends to negate

the importance of the similarities which Bevis, Barnett,

and Lamont discuss, thereby elevating the importance of

rates of fire and modes of fire, which as noted are not the

same between the AR-15 and the M16.

Placing importance on things such as range, caliber,

and muzzle velocity would also lead to inconsistent

classifications of firearms as “dangerous and unusual.”

The Browning BAR MK 4 is an example of a firearm which

would avoid this classification despite outperforming the

AR-15 in these categories. The rifle is a semi-automatic

derivation of a weapon designed during the First World

War and used extensively during the Second World War

by American armed forces. BAR MK 4 Hunter, Browning,

https://www.browning.com/products/firearms/rifles/bar/

bar-mk-4-hunter.html (last visited Aug. 31, 2026). The

weapon can be chambered in six different calibers all

of which are larger and have a greater muzzle energy

(the kinetic force with which the round exits the barrel)

than the 5.56 round used by the AR-15 and M16. Id.;

22

Jason Hitchcock, Bullet Caliber Chart: Smallest to

Largest Rounds, Survival Stoic (Apr. 14, 2026) https://

sur vivalstoic.com/ bullet-sizes-and-caliber-charts/.

While muzzle velocity varies based on the ammunition

manufacturer, all six of the calibers in which the MK 4 may

be chambered have muzzle velocities in a similar range

as 5.56 ammunition. Rifle Caliber Chart: A Ballistics

Performance and Usage Guide for Hunting, Sportsman’s

Warehouse, https://www.sportsmans.com/rifle-caliberperformance-chart?msockid=27b2b144ed8562a022f8a7

50ec0e63e8 (last visited Aug. 31, 2026).

Most importantly, under the assault weapons bans at

issue, the MK 4 would appear to remain legal for civilian

use. See Cook County, Ill., Code § 54-211; Conn. Gen. Stat.

§ 53-202a(1)(A)-(I). Here, therefore, is a weapon which is

far more like the AR-15 than the AR-15 is like the M16. It

is a semi-automatic variant of a former military rifle, with

specifications rivaling or exceeding those of the AR-15,

and using a round far larger than that of the AR-15. And

yet, it is one which inexplicably would not be considered

“dangerous and unusual” under the Cook County and

Connecticut bans.

Further, consider the negligible difference between

military and civilian handguns. The U.S. Military

currently uses the SIG Sauer M17 and M18 handguns,

semi-automatic 9mm handguns with an effective range

of around fifty meters. Program Acquisition Executive

Maneuver Ground, M17/M18 9mm Modular Handgun

System, PAEMG: Project Manager Soldier Lethality

Portfolio, https://cpeground.army.mil / Equipment/

Equipment -Por tfolio/ PM- SL -Por tfolio/ M17-M18 Modular-Handgun-System/ (last visited Aug. 31, 2026).

23

Commonly purchased civilian handguns, such as the

SIG Sauer P320 or the Glock 19 match these military

handguns in many respects. The former is nearly identical

in all aspects to the M17 and M18, which are slightly

improved variants of the P320 for military use. P230-M17,

SIG Sauer, https://www.sigsauer.com/p320-m17.html

(last visited Aug. 31, 2026). The latter, the Glock 19, also

chambered in 9mm, has a similar range but has no external

safety, instead utilizing a safe trigger system. G19 Gen

6, Glock, https://us.glock.com/en/products/commercialfirearms/pistols/g19-gen6 (last visited Aug. 31, 2026);

Glock 19, GlobalMilitary.Net, https://www.globalmilitary.

net/firearms/glock-19/ (last visited Aug. 31, 2026); Do

Glocks Have a Safety? Debunking Common Myths, CYA

Supply Co., https://www.cyasupply.com/blogs/articles/

do-glocks-have-a-safety-debunking-common-myths

(last visited Aug. 31, 2026). Under the circuit courts’

logic, these handguns could be bannable for mirroring

military weapons. Yet Heller has made clear these are not

“dangerous and unusual,” for they are “overwhelmingly

chosen by American society for . . . [a] lawful purpose.”

Heller, 554 U.S. at 628.

If the features which supposedly make the AR-15

a bannable, military-like “assault weapon” are key to

determining if a weapon is “dangerous and unusual,”

the circuit courts’ comparison creates confusion. Either

courts and legislatures must live with inconsistent results

when attempting to classify weapons as “dangerous and

unusual.” Or they must ban even larger categories of

firearms to encompass those which approach or surpass

some abilities of military firearms. Upholding these bans

will open the door to further restrictions that conflict

with Heller.

24

B. Cook County’s and Connecticut’s assault

weapons bans list features which do not

make weapons more or less “dangerous and

unusual.”

The circuit courts’ and Respondents’ flawed weapon

analysis does not end with AR-15s. In addition to rifles

banned by name, Cook County and Connecticut both use

a two-factor test to determine whether a rifle may qualify

as an “assault weapon.” The test requires the weapon be

capable of accepting a detachable magazine and contain

one of several features. But these features, at best for

the Respondents, can only be considered neutral in their

bearing on whether such a rifle is “dangerous and unusual.”

For example, a foregrip, a grip attached to the barrel of the

gun forward of the trigger and magazine, allows a shooter

to better control recoil and thereby improve his accuracy.

Those in favor of such bans have suggested this feature

increases the “capability for lethality — more wounds,

more serious, in more victims.” Kolbe, 849 F.3d at 137. In

the hands of a criminal, a feature improving a shooter’s

accuracy may indeed make a firearm more deadly. Yet,

such a feature also increases the “defensive application” of

the firearm, as well as granting a “public safety advantage

in preventing stray shots” when the firearm is used in a

lawful manner. David B. Kopel, Rational Basis Analysis

of “Assault Weapon” Prohibition, 20 J. Contemp. L. 381,

396 (1994).

The same can be said of telescopic or folding stocks,

which may make a rifle more concealable but also improve

accuracy and ease of use for lawful purposes, and a barrel

shroud, which prevents burns on the hands of the user. In

the best-case scenario for the Respondents, these features

25

still do not make a rifle more or less dangerous. Their

benefits to public safety during civilian use are at least

as great as benefits to public safety from preventing their

criminal use. In the worst case for the Respondents, these

features actually make rifles as a whole less dangerous.

The public safety benefits for the vast majority of lawful

users outweigh the potential slim increases in accuracy

and concealability for unlawful users. A test that treats

a heat shield as evidence of dangerousness should not

be considered reasonable or beneficial for measuring

dangerousness for the purposes of the Second Amendment.

C.

The Second Amendment applies to modern

weapons even though they are technologically

distinct from those at the time of the Founding.

The circuit courts have also failed to correctly apply

the principle of technological neutrality to the Second

Amendment. The Fourth Circuit in Bianchi v. Brown

said of AR-15s and other “assault weapons” that “[t]hese

are not our forebears’ arms.” Bianchi, 111 F.4th at

464. The Second Circuit, in Lamont, emphasizes that

“contemporary assault weapons represent dramatic

technological changes” from Founding-era weapons,

and states that weapons of the 1790s and 1860s were

“technologically distinguishable from modern AR-15-style

firearms.” Lamont, 153 F.4th at 237, 238.

And the Seventh Circuit, ruling on yet another assault

weapons ban, found that, compared to the “single-shot,

muzzle-loaded firearm” which was “ubiquitous” in the

1790s, the AR-15 is a “far cry from . . . antecedents.”

Barnett, 180 F.4th at 1055. Barnett dispenses with the idea

that “the capabilities and ubiquity of repeating rifles grew

26

gradually as America grew.” Barnett, 180 F.4th at 1056

(emphasis removed). According to the court, “[t]here need

not be a singular, transformative moment in the history of

firearm innovation for AR-15s . . . to be ‘different in form

and in kind from arms in common use during the Founding

and Reconstruction eras.’” Id. (quoting Hanson v. Smith,

120 F.4th 223, 242 (D.C. Cir. 2024)).

Of course, no constitutional right applies only to the

technology of the 18th century. This Court has explicitly

stated that in the First Amendment context, “whatever the

challenges of applying the Constitution to ever-advancing

technology, ‘the basic principles of freedom of speech and

the press, like the First Amendment’s command, do not

vary’ when a new and different medium for communication

appears.” Brown v. Entertainment Merchants Ass’n,

564 U.S. 786, 790 (2011) (citation omitted). Why then is

a comparison between muskets and AR-15s relevant?

Certainly, firearms technology of the 1790s or 1860s is

not comparable to that of modern day, but this does not

mean that modern firearms are not covered by the Second

Amendment. Just as the First Amendment applies to

modern media, so too the Second Amendment applies to

modern, semi-automatic rifles. The circuit courts do not

afford the Second Amendment the same protection.

The Barnett majority cites Bruen to justify their

comparison, “cases implicating . . . dramatic technological

changes may require a more nuanced approach.” Barnett,

180 F.4th at 1056 n.17 (quoting Bruen, 597 U.S. at 27).

Yet, in the same paragraph, Bruen states “[a]lthough its

meaning is fixed according to the understandings of those

who ratified it, the Constitution can, and must, apply to

circumstances beyond those the Founders specifically

27

anticipated.” Bruen, 597 U.S. at 28. Moreover, in the next

paragraph, the Court reiterates this in the specific context

of the Second Amendment, stating “[t]hus, even though

the Second Amendment’s definition of ‘arms’ is fixed

according to its historical understanding, that general

definition covers modern instruments that facilitate armed

self-defense.” Id.

Both Barnett and Lamont dismiss examples of

eighteenth and nineteenth century repeating rifles as

irrelevant because they “were exceedingly rare and never

penetrated the commercial or military markets” and thus

would not have been a focus of “historical legislatures”

or the Founders. Barnett, 180 F.4th at 1056; see Lamont,

153 F.4th at 237 (“early multi-shot firearms were neither

reliable nor widely used”). Yet their rarity should not

be taken to mean total ignorance of their existence.

Legislatures could have categorized them as dangerous

weapons and banned them; they chose not to do so. It is not

as though courts did not consider the question of unusual

weapons and the power of the state to ban them. Indeed,

State v. Huntly discussed whether guns were unusual

weapons in the context of affray in 1843. Huntly, 25 N.C.

at 421. It would be difficult to find a better example of an

unusual weapon in the early nineteenth century than a

repeater rifle.

Barnett similarly ignores the relevance of the 1866

Winchester repeating rifle, arguing it was “not a true

semiautomatic firearm” and therefore not proof enough

of historical analogs to the AR-15. Barnett, 180 F.4th at

1056. But the 1866 Winchester provides another link in

the chain of firearms development from smooth-bore,

muzzle-loading muskets to modern semi-automatic rifles.

28

Unquestionably, the lever-action and bolt-action rifles

which became popular in the second half of the nineteenth

century and early twentieth century had a higher rate of

fire than muzzle-loading muskets and rifles. Once more,

courts and legislatures did not suddenly consider them

outside the scope of the Second Amendment despite the

technological advancement they offered over muzzleloaders. The Seventh Circuit argues on the one hand this

upgrade was not substantial and was acceptable under

the Second Amendment. But on the other, it argues that

the advent of modern semi-automatic firearms was so

substantial that the Second Amendment ceased to protect

them.

L i ke t he F i r st A mend ment , t he S e c ond i s

technologically neutral. The fact that a weapon does not

function like a muzzle-loading firearm does not condemn it

to proscription. This Court should not adopt this erroneous

line of reasoning.

29

CONCLUSION

The opinions below limit the Second Amendment’s

protection by arbitrarily minimizing the crucial distinction

between automatic and semi-automatic firearms. Their

sparse historical examples cover improper carry and

conduct, as well as weapons associated with criminality,

not a ban on the peaceful carry and ownership of a broad

category of rifles. Instead, the historical tradition of

the founding generation, through their writings and

experience with the militia, is at odds with the banning

of effective rifles from private ownership.

The Court should reverse the decisions below, hold

that the banned semi-automatic rifles are protected arms,

and remand for entry of judgment for Petitioners.

Respectfully submitted,

Richard P. Hutchison

Landmark Legal Foundation

2405 Grand Boulevard,

Suite 420

Kansas City, MO 64108

Matthew C. Forys

Counsel of Record

Michael J. O’Neill

Landmark Legal Foundation

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 554-6100

matt@landmarklegal.org

Attorneys for Amicus Curiae

September 4, 2026