Scathing SCOTUS Brief Attacks Semi-Auto & Magazine Bans

April 30, 2024

Federal Firearms Licensees of Illinois (FFL-IL) and Guns Save Life have joined the National Shooting Sports Foundation (NSSF)  and other petitioners in filing a reply brief in support of their effort to have the Supreme Court review and reverse the Seventh Circuit’s disastrous ruling in Bevis v. City of Naperville. There, the appellate court reversed the preliminary injunction gun owners won from Judge McGlynn by deciding that Illinois could ban many of the most popular firearms in the country because if a gun is used by the military, it is entirely unprotected by the Second Amendment. While disappointing, and completely not in line with Bruen,  the ruling was also not shocking given that the panel included one of the same judges the Supreme Court reversed before in McDonald v. Chicago. Because of the Bevis ruling, popular firearms and magazines remain illegal to acquire in Illinois for now.

Getting the Supreme Court to review a case before a final judgment is usually a tall order, as the Court prefers to avoid wading into preliminary matters. But some factors unique here may entice the justices to wade in now. Following the filing of our petition for certiorari in February, Illinois filed an opposition brief a couple of weeks ago which practically seemed to dare the Court to take action now.

For example, Illinois argues that the Seventh Circuit was correct in concluding that so-called “assault weapons” are not even “arms” protected by the Second Amendment. This ignores that Heller defined what “arms” are in the Second Amendment context, which includes all “modern instruments that facilitate armed self-defense, even those that were not in existence at the time of the founding.” Heller also rejected any attempts by the government to second guess what Americans choose to use for self-defense when it explained that “[w]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” By the same logic, then, if a rifle like the AR-15 has been sold by the tens of millions, Illinois may not ban it just because it disagrees with the decision its citizens have made.

But even if the banned firearms are “arms” under the plain text of the Second Amendment, Illinois argues they may still be restricted because there is a tradition of “reserving some [firearms], if appropriate, to the military or law enforcement.” This is perhaps the most egregiously wrong assertion in an opposition brief full of them, as it ignores that the Second Amendment exists in large part as a guard against tyranny, regardless of whether such tyranny comes from a foreign invader or the government itself.

The reply brief rebuts these arguments, pointing out that “[w]hat matters for purposes of Bruen’s threshold plain-text inquiry is whether the banned articles can be borne for self-defense. And on that issue, the tens of millions of Americans who use them for that purpose simply cannot be wrong.” Moreover, Illinois’ and the Seventh Circuit’s assertion that firearms used by the military can be banned “would have meant that the musket and bayonet would have received no constitutional protection, a result that would have been anathema to the Framers and diametrically opposed to the Amendment’s public understanding at the Framing.” Indeed, most of the firearms and magazines Illinois bans “were popular with civilians long before any gained traction with any military.”

Aside from the substance, the brief also emphasizes to the Court why it should intervene now and not wait for a final judgment. “Deferring review in the face of defiance of this Court’s decisions and constitutional rights will just beget more defiance, while law-abiding citizens face criminal charges for possessing common arms that have long been lawfully and safely possessed by their fellow citizens.” The parties also discuss how antigun states and courts are in open rebellion over Bruen, with the Ninth Circuit “resuming its uniform pre-Bruen practice of vacating and rehearing en banc any panel decision vindicating Second Amendment rights”, and the Fourth Circuit “en banc’ed not one but two Second Amendment cases in the span of a day”.

The Supreme Court could take a number of actions from here. It could grant certiorari in full, and hear the case in its next term. If that happens, the parties will submit more complete briefs on the merits, and oral argument will be heard likely sometime in the fall.

The Court could also opt to issue a summary reversal, which would reverse the Seventh Circuit without further argument and briefing. Such summary reversals are usually accompanied by a per curiam opinion explaining the action.

Another alternative is for the Court to grant certiorari, vacate the Seventh Circuit’s ruling, and remand it back to that court for further proceedings. This would be a scenario in which the Supreme Court is not quite ready to hear the case but does want to give the Seventh Circuit guidance on how to correct errors in its legal analysis. Something similar could happen in the event that the pending ruling in Rahimi changes the Second Amendment analysis in a way relevant to the Bevis ruling.

Finally, there is always the possibility that the Court opts to deny review entirely for the time being, preferring to hear the case following a final judgment. Our lawyers are currently working hard back in the trial court to move the case to a final judgment as fast as possible, should we be forced to take that longer path. Regardless, FFL-IL and Guns Save Life, NSSF, and Second Amendment Law Center are committed to restoring the Second Amendment rights of Illinois residents. The Second Amendment Law Center has been key in developing amicus briefings for cases all over the country, considering some of these complex cases.

CRPA monitors cases all over the country, as the decisions in lower courts impact the methodology with which the Bruen decision is implemented. WE NEED  YOUR HELP to keep up the fight everywhere we can!