The state has stepped up and opened their mouth in an Amicus brief in —Nguyen, et al. v. Bonta, et al., No. 24-2036, slip op. at 7 (9th Cir.) (not a good cite). The gist of the case is that the state of Illinois had a Bruen tantrum and created a new assault weapon and magazine ban.
Now the United States DoJ is sticking their oar in the water. Ugh.
President Donald J. Trump has instructed his Administration to “protect the Second Amendment rights of all Americans.” Executive Order No. 14,206, Protecting Second Amendment Rights, 90 Fed. Reg. 9503 (Feb. 7, 2025). Attorney General Pamela Bondi has likewise instructed the Department of Justice “to use its full might to protect the Second Amendment rights of law-abiding citizens.” Memo. from the U.S. Att’y Gen., Second Amendment Enforcement Task Force (Apr. 8, 2025).
Yeah, I’ll believe that when the cows come home.
The United States has strong interests in ensuring that these questions are correctly resolved;
Now, isn’t that weasel words?
that the Second Amendment is not treated as a second-class right; and that law-abiding Americans in this Circuit are not deprived of the full opportunity to enjoy the exercise of their Second Amendment rights.
Wait, WHAT?
Three years ago, the Supreme Court issued a landmark decision meant to break a habit developed by some States of treating the Second Amendment as “a second-class right, subject to an entirely different body of rules than the other” constitutional rights. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 70 (2022) (citation omitted).
Yes, the Supreme Court did say, in Heller and Bruen that the Second Amendment isn’t a second class right.
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. In doing so, Illinois violated the Supreme Court’s clear directive that States cannot prohibit arms that are “in common use” by law-abiding citizens for lawful purposes. District of Columbia v. Heller, 554 U.S. 570, 624 (2008).
Exactly, Illinois passed a “Bruen tantrum bill”. They did not get the message.
…the key question under the Second Amendment’s text is whether the banned semiautomatic firearms are “Arms”
Many of them—including AR-15s—are. The term “Arms,” as used in the Second Amendment, describes the category of weapons that an individual would wear, bear, or carry for offensive or defensive action in case of conflict with other people. Heller, 554 U.S. at 581. Thus, the Second Amendment “extends, prima facie, to all instruments that constitute bearable arms.” Id. at 582. And it protects not “only those arms in existence in the 18th century,” but also “those that were not in existence at the time of the founding.” Ibid.
Well, Doh, of course AR-15s are “Arms” under the plain text.
This brief focuses on AR-15s, the “paradigmatic example” of the type of firearm banned by the Act. But to be clear, the Act is, in the United States’ view, unconstitutional to the extent it bans the possession of any firearms (not just AR-15s) that are in common use by law-abiding citizens for lawful reasons. For purposes of this amicus brief, however, the United States does not challenge the district court’s findings that certain firearms banned by the Act, such as .50 caliber rifles and pistols, do not fall within that category. Barnett v. Raoul, 756 F. Supp. 3d 564, 628 (S.D. Ill. 2024). But cf. Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, No. 23-1141, 605 U.S. __, 2025 WL 1583281, at *8 (U.S. June 5, 2025) (“.50 caliber sniper rifles … are both widely legal and bought by many ordinary consumers”).
— Footnote 2
Please note that the quote comes from the S&W v. Mexico was written by Justice Kagan. In other words, we now have two lefty Justices writing things that are pro-Second Amendment.
… Indeed, it is hard to imagine how anyone fairly applying Heller’s definition of “Arms”—instead of redefining it—could conclude otherwise. Cf. Harrel, 144 S. Ct. at 2492-93 (statement of Thomas, J.); Bevis, 85 F.4th at 1206-07 (Brennan, J., dissenting).
Ok, what happened? The DoJ are the bad guys, aren’t they?
For protected “Arms,” a legislature may only pass “such regulations and limitations” as do not “infringe the right secured and the necessary incidents to the exercise of such right.” Andrews, 50 Tenn. at 179. Courts should generally determine the validity of restrictions on (or regulations regarding) the types of “Arms” that a citizen may possess at the second step of Bruen’s analysis, during which courts must consult our Nation’s “historical tradition of firearm regulation” and determine whether a given restriction or regulation “is consistent with the principles that underpin [that] regulatory tradition.” United States v. Rahimi, 602 U.S. 680, 691-92 (2024) (citation omitted).
Exactly, if the plain text of the Second Amendment interacts with the conduct, bearing assault weapons in this case, then the Second Amendment’s protections presumptively apply to that conduct. The state bears the burden of proving a history of historical regulations that are a match.
Furthermore, while many said that Rahimi was bad for The People, it keeps showing up in positive ways in these court cases. Now if the rogue courts would just follow simple instructions.
The DoJ goes on to correctly apply the “in common use” process. The Supreme Court has already done the work of determining what this Nation’s historical tradition of firearm regulations are in reference to firearm bans. They determined that for an arm to be banned, it must be both dangerous and unusual.
If an arm is in common use among The People, it is not unusual and cannot be banned.
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.
One of the things the DoJ points out, that I had not noticed, is that these rogue, inferior courts, have decided that Heller severed the Second Amendment’s prefactory clause from its operative clause. These rogue courts were then able to argue that if a weapon was militaristic, the operative clause did not protect it.
This is just BS. The Supreme Court actual recognized that the Second Amendment also protects the right to keep and bear arms for individual self-defense, but also collective self-defense.
Applying that principle to the Act, the Second Amendment protects firearm attachments that are useful to the exercise of the right, including magazines, suppressors, and other firearm attachments that are in common use by law-abiding citizens for lawful reasons. As the D.C. Circuit has held, “[a] magazine is necessary to make meaningful an individual’s right to … self-defense.”
My gosh, the DoJ just said that suppressors are “arms” under the Second Amendment and thus fall under the “in common use” shortcut.
Conclusion
The United States of America Department of Justice just filed one of the most powerful motion, supporting the Second Amendment, I’ve ever read. It calls out the rogue inferior courts. It says that rogue inferior courts are wrong in how they are interpreting the Second Amendment.
In general, parties to a case are careful in their wording to not offend the court. This is why you don’t normally read statements in a motion saying the court got it wrong.
This motion did precisely that. It called out the Seventh Circuit court for intentionally reinterpreting the Supreme Court to get their agenda-driven results.
