In a 2-1 decision, the Seventh Circuit Court of Appeals has upheld the “assault weapon” and “large capacity” magazine ban imposed by the state of Illinois, with Trump appointee Amy St. Eve authoring the majority opinion.
St. Eve and Judge Frank Easterbrook concluded that the state’s ban on “AR-15s and thirty-round rifle magazines” are “consistent with the principles that underpin our Nation’s tradition of firearm regulation,” which is an odd framing given that the ban is actually far more encompassing than that.
The Seventh Circuit previously upheld a similar ban in a case called Bevis, and the expectation among most 2A scholars and attorneys was that the appellate court would do the same here. The bigger question is what argument they would use to endorse the prohibition on some of the most commonly-owned arms in the country. St. Eve and Easterbrook pointed to “regulations of the Bowie knife—or, as one Reconstruction-era court called it, the ‘instrument of almost certain death’ as proper analogues to the modern ban on so-called assault weapons and large capacity magazines.
Popularized in the 1830s, Bowie knives came in a variety of forms, but “in its purest form” it was “a large knife with a clipped point” making the tip more piercing. These features, combined with the technological shortcomings plaguing the era’s prominent firearms—which required the user to carefully reload after every shot, such that one missed shot could leave the user defenseless—made Bowie knives a popular choice for fights and duels.
The majority admits that Bowie knives were “both widespread and used for lawful purposes,” but says that didn’t stop them from being highly regulated.
Some jurisdictions banned the carry of Bowie knives, with narrow exceptions or none at all—a broad proscription. Others prohibited their concealed carry. While these restrictions targeted what one did in public, others burdened one’s ability to own Bowie knives for use in private too, such as for defense of the home, by banning the sale of Bowie knives or imposing burdensome, and sometimes prohibitive, taxes.
This, to me, is where the majority opinion falls apart. St. Eve and Easterbrook can only find three states that banned the sale of Bowie knives, with each of those laws being enacted at least 40 years after the Second Amendment’s ratification and 30 years before the Fourteenth Amendment was ratified. This is not evidence of a widespread prohibition, and as the dissent notes, many of the laws that regulated carrying featured carveouts (no pun intended) for travelers or those “with a heightened and urgent need” for self-defense.
The majority goes on to say that banning AR-15s and 30-round magazines imposes minor restrictions on the ability to use firearms in self-defense or other lawful purposes, and that the use of AR-15s and large capacity magazines in self-defense are “exceedingly rare” to begin with.
The plaintiffs object that the Act’s “how” differs too greatly from those of historical regulations. Many of the Bowie knife regulations, the plaintiffs stress, imposed less burdensome restrictions than does the Act—mostly because they regulated only carry or only concealed carry, but also because some only imposed penalty enhancements for crimes committed with the knives or severely taxed them. The Act therefore incomparably burdens the right of armed self-defense, the plaintiffs contend.
We accept the premise that the Act lacks a “historical twin,” but that is not the touchstone, so we reject the conclusion that the historical antecedents on which the defendants rely are insufficient. First, the Supreme Court itself took just the leap that the plaintiffs argue is impermissible. In Heller, the Court invoked “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” in explaining that M16 rifles “may be banned.” And while Heller was not applying Bruen’s inquiry per se, Bruen made clear that its approach was consistent with—even more, stemmed from—Heller. (“The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”).
Second, Rahimi, which “refine[d]” Bruen, “confirmed that a closer match to a historical precursor is not necessary” by rejecting distinctions no smaller than those here. Rahimi considered the constitutionality of 18 U.S.C. § 922(g)(8), which “prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he ‘represents a credible threat to the physical safety of [an] intimate partner,’ or a child of the partner or individual.” In rejecting a facial challenge to that provision, the Court relied on two historical regimes: surety laws and going-armed laws. Neither regime, however, imposed anything particularly close to the restriction of § 922(g)(8).
In other words, the regulations on Bowie knives are close enough for government work.
Seventh Circuit Chief Judge Michael Brennan penned a dissent that, while not particularly flashy or fiery, aptly dismantles the majority’s argument.
Our Nation’s enduring traditions forbid governmentsfrom prohibiting firearms commonly owned for self-defense. Because the people have overwhelmingly chosen the AR-15 rifle and its magazine as their weapon of choice, they are protected by the Second Amendment. Instead, the majority opinion holds that a state may prohibit the possession and sale of AR-15s and 30-round magazines. That conclusion cannot be reconciled with the “common use” test as applied in District of Columbia v. Heller, and is not supported by the historical record. The district court’s permanent injunction should be affirmed. I therefore respectfully dissent.
Brennan went on to argue that a historical analysis reveals “three enduring traditions.”
First, and most importantly, “dangerous and unusual” weapons—those suited for or overwhelmingly used by criminals—could be prohibited. Second, the people of England and the United States closely guarded the right of self-defense. Third, the weapons chosen by the people for self-defense were not outlawed.
I’ll quibble with Brennan just a bit here. In Heller the Supreme Court noted that handguns were (and are) the weapon of choice for most criminals. They are also, however, commonly used for lawful purposes like self-defense. “Dangerous and unusual” weapons, therefore, cannot be such solely because they are overwhelmingly used by criminals. AR-15s and “assault weapons” aren’t overwhelmingly used by criminals to begin with, so it’s kind of a moot point, but it’s an argument that I hope isn’t repeated when the Supreme Court takes up gun and magazine bans next term.
Brennan notes that states did not enact laws to limit the possession or carry of Bowie knives “because they were extremely dangerous,” but rather, “they did so because they were commonly concealed and used by criminals.”
This is evident from several cases discussing these bans under the right to bear arms. For example, in 1840, William Aymette was convicted for wearing a concealed Bowie knife, violating a Tennessee statute. The Tennessee Supreme Court drew the boundaries of the right to self-defense. “The Legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which … would not contribute to the common defence.” But those arms “usually employed in private broils, and which are efficient only in the hands of the robber and the assassin,” may be banned. Because Bowie knives were not used for lawful but criminal purposes, the Supreme Court upheld the conviction. The Louisiana Supreme Court reached the same conclusions when analyzing that state’s ban on the concealed carry of Bowie knives and like weapons. Such weapons are “not even designed for any purpose of public defence, and used most frequently by evil-disposed men who seek an advantage over their antagonists, in the disturbances and breaches of the peace which they are prone to provoke.”
The majority opinion argues that Bowie knives were, in fact, in common use for lawful purposes, but Brennan’s dissent rightfully points out that the judges who upheld some of these regulations clearly didn’t believe that was the case.
Brennan also does a great job of pointing out that, since the plain text of the Second Amendment is implicated by Illinois’ ban, it’s up to the state to prove that AR-15s aren’t in common use for lawful purposes. Instead, the majority sought to make the plaintiffs prove that the banned firearms and magazines are commonly used for self-defense; an inversion of the Bruen test spelled out by the Supreme Court.
Brennan’s dissent discusses the “common use” test in great detail, and it’s worth a separate post all it’s own. This analysis is getting pretty lengthy already, so I’ll wrap it up by saying I think the Seventh Circuit opinion is the last win the anti-gunners are going to get on this issue going forward. For another lengthy analysis on today’s decision, check out Kostas Moros’s threat on X.
A thread on this ruling here. https://t.co/4BwvTprlF9 pic.twitter.com/uR770vJDHs
— SAF (@2AFDN) July 9, 2026
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