The Trump administration has taken another historic step in defense of the right to keep and bear arms by declaring in an amicus brief that Illinois’ bans on commonly owned semi-automatic firearms and ammunition magazines that can hold more than ten rounds violate the protections of the Second Amendment. 

The brief, filed Friday with the Seventh Circuit Court of Appeals, marks the first time that the Department of Justice has formally opposed a ban on so-called assault weapons, and comes as part of President Donald Trump’s executive order directing all federal agencies to take the appropriate steps to safeguard the right to keep and bear arms. 

In the brief, the DOJ argues there are “three very good reasons” why the appellate court should reverse course and affirm the district court’s permanent injunction, despite overturning U.S. District Judge Stephen McGlynn’s earlier decision granting a preliminary injunction against the gun and magazine ban.

The DOJ brief declares that the Seventh Circuit simply got it wrong in a previous case dealing with an “assault weapons ban” called Bevis v. Naperville, in which the court declared that AR-15s and other semi-automatic long guns are “militaristic” firearms  that fall beyond the scope of the Second Amendment’s protection. 

This position fails as a matter of text, history, and precedent. 

… The Second Amendment’s prefatory clause—“A well regulated Militia, being necessary to the security of a free State”—certainly does not limit the scope of its operative clause, as the Supreme Court made clear in Heller. But the Supreme Court was just as clear that the prefatory clause’s text nevertheless “announces” one of the Second Amendment’s “purpose[s].” And “[l]ogic demands that there be a link between the stated purpose and the command.” 

… This Second Amendment’s militia-related text, as interpreted by the Supreme Court, thus suggests that the government may not prohibit weapons simply because it considers them “militaristic.” The contrary claim that “militaristic” weapons fall outside its scope wrongly requires reading the prefatory clause entirely out of the Second Amendment.

Even the Miler case from the 1930s held that only those arms best suited to a militia are protected under the Second Amendment, which the Seventh Circuit and other appellate courts appear to have simply ignored in order to uphold bans on AR-15s and the like. But this isn’t the only argument the DOJ deploys against the Illinois ban. 

… multiple Supreme Court Justices, (including Bruen’s author) have since made it clear that they disagree with Bevis and other recent lower-court opinions, and that the Court islikely to grant certiorari “in the next Term or two” to address the errors in those opinions. Third, after this Court’s decision in Bevis, the district court held a multi-day bench trial, heard significant evidence regarding the issues in this case, and made factual findings that show that the Act violates the Second Amendment as applied to semiautomatic firearms and attachments that are in common use by law-abiding citizens for lawful reasons.

As the Department of Justice correctly points out, the Supreme Court said in Heller and reiterated in Caetano that arms cannot be banned unless they are both dangerous and unusual. The AR-15 and other arms banned by the Protect Illinois Communities Act aren’t uniquely dangerous, and they’re certainly not unusual, given that we’re talking about the most popular rifle in the country. 

The commonsense conclusion that the most popular civilian rifle in America is in common use by law-abiding citizens for lawful reasons is buttressed by the factual findings in this case. After conducting a multi-day bench trial, the district court found that AR-15s and certain other firearms banned by the Act “are in common use” by law-abiding citizens for lawful purposes, including “self-defense.” Among other specific factual findings, the court found that uses of AR-15s for unlawful purposes such as mass shootings—albeit reprehensible and tragic when they occur—“are clearly outliers” and are “exception[s], not the rule. These fact-laden determinations certainly were not clearly erroneous, and this Court is not free to overturn them. 

AR-15s also are not “dangerous,” at least as that term is used in Second Amendment caselaw. Of course, all firearms are “dangerous” in some sense. But to be “dangerous” in the relevant sense, a firearm must be “especially dangerous,” or “uniquely dangerous”. AR-15s are not “especially” or “uniquely” dangerous as compared to other firearms (semiautomatic handguns) that are in common use. “AR-15s are semi-automatic, but so too are most handguns.” (quoting Justice Kavanaugh in his statement on Snope)

“[C]riminals use both AR-15s and handguns . . . in unlawful ways that threaten public safety.” Ibid. “But handguns can be more easily carried and concealed than rifles, and handguns—not rifles—are used in the vast majority of murders and other violent crimes that individuals commit with guns in America.” In sum, “[t]here is no meaningful . . . distinction between semiautomatic handguns and semi-automatic rifles,” and it would thus“strain logic and common sense to conclude that the Second Amendmentprotects semi-automatic handguns but does not protect semi-automatic rifles.”

The brief can be read in its entirety here, and it’s worth perusing the whole thing. 

It’s great to see the Trump administration and the Department of Justice taking this proactive step to eradicate the semi-auto and magazine ban in Illinois. Even if the Seventh Circuit digs in its heels and continues to insist that banning the most popular rifle in the country doesn’t infringe on our Second Amendment rights, the fact that DOJ has taken an interest in this case should be a point in favor of SCOTUS granting cert and finding for the plaintiffs when Barnett v. Raoul eventually reaches its doorstep.