The Volokh Conspiracy
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Second Amendment Roundup: U.S. Files Amicus Brief in Illinois Rifle Ban Challenge
Brief argues that no “militaristic” arm exception exists.
The United States has filed an amicus brief in Barnett v. Raoul, the challenge to Illinois' ban on semiautomatic rifles and standard magazines pending in the Seventh Circuit. This is the first time the Department of Justice has ever argued against such a ban. It defended the federal ban that was enacted in 1994 and expired in 2004.
As the brief recalls, in Bruen (2022) the Supreme Court emphatically reinforced the Heller rule that the Second Amendment protects firearms in common use by law-abiding persons for lawful purposes. "Regrettably, not every State got the message. Just a few months after Bruen, Illinois outlawed some of the most commonly used rifles and magazines in America via a so-called 'assault weapons' ban." And after that, in Bevis v. City of Naperville, the Seventh Circuit overturned the district court's preliminary injunction against enforcement of the ban on the basis that the plaintiffs were unlikely to prevail.
As the United States argues, Bevis got it wrong even under pre-Bruen precedents. Thereafter, multiple Supreme Court Justices have expressed disagreement with Bevis, and Justice Kavanaugh said that the Court is likely to grant certiorari "in the next Term or two." (See my post here.) Moreover, the district court in Barnett heard critical, unrebutted evidence in a multi-day bench trial and found that the ban violates the Second Amendment.
The brief covers familiar ground, but does condition some of its statements with an eye toward future defense of federal law. It says that "many" (not all) of the banned firearms, particularly the AR-15, are "Arms" under the Second Amendment, which per Heller "extends, prima facie, to all instruments that constitute bearable arms." For purposes of the brief, it does not challenge the district court's findings that .50 caliber rifles and pistols are not protected. (The district court was "not convinced that any law-abiding citizen would keep a .50 caliber sniper rifle at home for self-defense purposes," although that ignores militia use.) But the brief adds "cf." the Supreme Court's recent statement in Smith & Wesson Brands v. Estados Unidos Mexicanos that ".50 caliber sniper rifles . . . are both widely legal and bought by many ordinary consumers."
While in the future the Department of Justice will continue to be called upon to defend the restrictions of the National Firearms Act, the NFA's definition of a "destructive device" does not include .50 caliber (= one half inch) barreled firearms. It instead covers a weapon "the barrel or barrels of which have a bore of more than one-half inch in diameter," excluding shotguns found to be "particularly suitable for sporting purposes." The brief adds that "at least one type of weapon banned by the Act—grenade launchers—may not qualify as an 'Arm' because it is more like artillery or explosives." All of these items are within the NFA's definition of "destructive device."
The brief also touches on another NFA device, silencers, which Congress (with the apparent approval of the Administration) is currently seeking to remove from the NFA. (See my post here.) In explaining that the Illinois Act violates the Second Amendment by banning magazines that are in common use, the brief generalizes that "firearm attachments that are useful to the exercise of the right, including magazines, suppressors, and other firearm attachments" are protected. It references its recent Supplemental Response in United States v. Peterson arguing that "a complete ban on suppressors would be unconstitutional." That concession may assist in challenging state laws that totally ban suppressors. But the Response also argues that the NFA's tax and registration requirements survive Second Amendment scrutiny.
Most of DOJ's Barnett brief is devoted to the familiar theme that the banned rifles meet the Heller-Bruen common-use test. The district court's multi-day bench trial made extensive factual findings that are not clearly erroneous. If it wants to overturn these findings, the Seventh Circuit will have to engage in substantial judicial antics to reach a preconceived result.
There is one legal point on which the brief uniquely took issue with the Bevis claim that "militaristic" firearms are not even "Arms." It goes without saying that, lacking capacity for full auto, the semiautomatic AR-15 simply "is not a military weapon," which explains why no military force in the world issues it as a standard service arm. Textually, the Second Amendment's prefatory clause—"A well regulated Militia, being necessary to the security of a free State"— does not limit the scope of its operative clause. It protects arms both for individual self-defense and collective self-defense.
Historically, "the English and American people were the first line of defense from military invasion, insurrection or public unrest, and even government oppression." Precedents from the nineteenth and early-twentieth centuries confirm protection for possession of arms for the common defense. As Thomas Cooley wrote in The General Principles of Constitutional Law in the United States, "The arms intended by the Constitution are such as are suitable for the general defen[s]e of the community against invasion or oppression[.]"
The brief was signed by Chad Mizelle, Acting Associate Attorney General, and Harmeet K. Dhillon, Assistant Attorney General, Civil Rights Division.
