Second Amendment Groups Urge Seventh Circuit to Uphold Injunction on Illinois Gun and Magazine Ban

A coalition of Second Amendment groups is urging the Seventh Circuit Court of Appeals to uphold a lower court injunction against the portions of the Protect Illinois Communities Act that ban so-called assault weapons and large capacity magazines, arguing that U.S. District Court Judge Stephen McGlynn was correct in finding the law in conflict with our right to keep and bear arms. 

The issue in Harrel v. Raoul (and its affiliated cases) is simple, according to the Firearms Policy Coalition, Second Amendment Foundation, Illinois State Rifle Association, and other named plaintiffs: does the Second Amendment allow Illinois to ban the best-selling rifle in America and the magazines that come standard with them? 

The answer is no. 

In District of Columbia v. Heller, the Supreme Court held that “[t]he 18th-century meaning” of the word “arms” is “no different from the meaning today”—namely, “weapons of offence, or armour of defence.” And because the plain text of the Second Amendment does not distinguish between types of arms, the Amendment’s protection “extends, prima facie, to all instruments that constitute bearable arms.” Limitations on the right must come from our nation’s history. And Heller held that “historical tradition” surrounding the ratification of the Second Amendment demonstrates that only “dangerous and unusual weapons” are unprotected. Firearms “in common use” by law-abiding citizens, by contrast, are protected, because common arms, by definition, cannot be dangerous and unusual weapons.

Unfortunately, the Seventh Circuit has largely disregarded what little the Supreme Cout has had to say about what kinds of arms can be banned without infringing on our Second Amendment rights. The court stayed McGlynn’s permanent injunction shortly after it was issued, declaring that “the laws have enough support to remain in place pending the final resolution of plaintiffs’ suit.”

In 2023, the appeals court denied a similar preliminary injunction in a case called Bevis v. Naperville, which was a challenge to a municipal semi-auto and magazine ban in the city of Naperville, Illinois. In that decision, the court held that AR-15s and other semi-automatic long guns aren’t protected by the Second Amendment because “these assault weapons and high-capacity magazines are much more like machineguns and military grade weaponry than they are like the many different types of firearms that are used for individual self-defense.” 

In todays’ brief, SAF, FPC, and the other plaintiffs note that the precedent-setting Bevis decision “complicates matters.” 

Bevis purported to apply Heller and Bruen to the Illinois ban in a preliminary-injunction posture. But respectfully, Bevis’s reasoning was contradictory to both decisions. It was also explicitly preliminary, and this case now provides this Court an opportunity to reassess its reasoning and take a different tack, which is more faithful to Heller and Bruen. 

… Bevis is both inconsistent with the text of the Second Amendment and the Supreme Court precedents interpreting it. Bevis’s reading of “arms” to mean certain nonmilitary firearms —as determined by judges—is impossible to square with Heller’s definitive interpretation of the term “arms” applying Founding-era dictionaries. . Bevis’s reasons that justify its a textual conclusion are based on a misinterpretation of Heller. The statement Bevis relied on (1) was concerned with history not the Amendment’s plain text and (2) does not establish that arms can be banned if they are “exclusively or predominantly useful in military service,” but rather seeks to explain how certain arms can be banned despite their use by the military if they are both “dangerous” and “unusual” when compared to commonly used civilian arms.

Similarly, Bevis’s rejection of “common use” as dispositive of the historical analysis called for in Bruen cannot be squared with either Bruen or Heller. In Heller, which itself dealt with an arms ban (there ,handguns), the Court surveyed the relevant history and concluded that the only historical tradition that could support banning a type of firearm was the historical prohibition on restricting “dangerous and unusual weapons.” But while acknowledging that tradition, the Court noted that it had a positive corollary: arms in common use are per se protected and cannot be banned. Bruen did nothing to call this conclusion into question—indeed Bruen itself used the tradition of restricting “dangerous and unusual weapons” as an example of the sort of rules that can be appropriately derived from history when explaining its analytical framework. 

Finally, Bevis’s analysis of historical analogues fails on its own terms. As Bruen explained, to support a modern law that implicates theplain text of the Second Amendment, historical restrictions must be part of a broader “tradition” of regulation that impacted the right to keep and bear arms in similar ways and for similar reasons. The handful of laws collected by the Bevis panel fail this test: they are either inapposite or affirmatively disprove Bevis’s conclusion that exclusive or predominant military usefulness excludes a weapon from the protection of the Second Amendment. 

If it wasn’t for Bevis, the plaintiffs contend, resolution of this case would be straightforward. PICA bans firearms that are clearly in common use for lawful purposes (including, but not limited to, self-defense), and that’s a no-no. The magazine ban is a little trickier, because the Seventh Circuit has also declared that those aren’t “arms” at all, merely accessories to firearms that can be regulated into non-existence if a legislature chooses to do so. 

The plaintiffs rightfully cite other courts around the country that have disagreed, including the D.C. Circuit Court of Appeals, which held that “[a] magazine is necessary to make meaningful an individual’s right to . . . self-defense. To hold otherwise would allow the government to sidestep the Second Amendment with a regulation prohibiting possession at the component level, such as a firing pin.”

If an 11-round rifle magazine is not an “arm,” then there is no reason that a ten-round magazine would be either. Or a three-round rifle magazine for that matter. As the D.C.Circuit held, stripping a component part of a firearm of Second Amendment protection would operate no differently than banning the firearm altogether. Thus, to justify a ban on magazine capacity, the State must also resort to historic firearm regulations. It cannot do so because, as already discussed in great detail, the historical work here has been done by Heller, and it yielded the rule that only “dangerous and unusual” arms can be banned, while arms “in common use” are protected.\

Magazines with a capacity of more than ten rounds are just as common (if not moreso) as AR-15s; both for rifles and handguns. From commonly owned handguns like Glock, which come standard with 17-round magazines, to new additions to the market like Kel-Tec’s PR57 that features a 20-round internal magazine, 10+ round magazines are by far the most popular (and common) types of magazines available today. I would argue that these components aren’t dangerous in and of themselves, but they’re certainly not dangerous and unusual, which means that they too should be protected by the Second Amendment. 

The plaintiffs have given the Seventh Circuit several great reasons to overrule its previous decision in Bevis. I’m not all that optimistic that the appellate court will do so, but this is one of those cases that Supreme Court Justice Brett Kavanaugh said could be heard by the Court in a “term or two”, and the arguments deployed by the Second Amendment groups could easily be used to grant cert and overturn any bad decision emanating from the Seventh Circuit once Harrel v. Raoul has been decided on the merits and appealed to the Supreme Court for review.