In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 23-1353 

ROBERT BEVIS, et al., 

Plaintiffs-Appellants, 

v.

CITY OF NAPERVILLE, ILLINOIS and JASON ARRES, 

Defendants-Appellees, 

and

THE STATE OF ILLINOIS, 

Intervening Appellee.

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:22-cv-04775 — Virginia M. Kendall, Judge. 

___________________

No. 23-1793

JAVIER HERRERA, 

Plaintiff-Appellant, 

v.

KWAME RAOUL, et al., 

Defendants-Appellees. 
2 Nos. 23-1353 et al.

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:23-cv-00532 — Lindsay C. Jenkins, Judge. 

___________________ 

No. 23-18251

CALEB BARNETT, et al., 

Plaintiffs-Appellees, 

v.

KWAME RAOUL and BRENDAN F. KELLY, 

Defendants-Appellants. 

____________________ 

Appeals from the United States District Court for the

Southern District of Illinois.

No. 3:23-cv-00209-SPM — Stephen P. McGlynn, Judge. 

____________________ 

ARGUED JUNE 29, 2023 — DECIDED NOVEMBER 3, 2023 

____________________ 

Before EASTERBROOK, WOOD, and BRENNAN, Circuit Judges. 

WOOD, Circuit Judge. The Second Amendment to the Constitution recognizes an individual right to “keep and bear 

Arms.” Of that there can be no doubt, in the wake of the 

1 Consolidated with No. 23-1826, Harrel v. Raoul (S.D. Ill. No. 3:23-cv00141-SPM); No. 23-1827, Langley v. Kelly (S.D. Ill. No. 3:23-cv-00192-SPM); 

and No. 23-1828, Federal Firearms Licensees of Illinois, et al. v. Pritzker (S.D. 

Ill. No. 3:23-cv-00215-SPM).
Nos. 23-1353 et al. 3

Supreme Court’s decisions in District of Columbia v. Heller, 554 

U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 

(2010); Caetano v. Massachusetts, 577 U.S. 411 (2016) (per curiam); and New York State Rifle & Pistol Ass’n v. Bruen, 142 S. 

Ct. 2111 (2022). But as we know from long experience with 

other fundamental rights, such as the right to free speech, the 

right peaceably to assemble, the right to vote, and the right to 

free exercise of religion, even the most important personal 

freedoms have their limits. Government may punish a deliberately false fire alarm; it may condition free assembly on the 

issuance of a permit; it may require voters to present a valid 

identification card; and it may punish child abuse even if it is 

done in the name of religion. The right enshrined in the Second Amendment is no different.

The present cases, which we have consolidated for disposition, relate to the types of “Arms” that are covered by the 

Second Amendment.2 This presents a line-drawing problem. 

Everyone can agree that a personal handgun, used for selfdefense, is one of those Arms that law-abiding citizens must 

be free to “keep and bear.” Everyone can also agree, we hope, 

that a nuclear weapon such as the now-retired M388 Davy 

Crockett system, with its 51-pound W54 warhead, can be reserved for the military, even though it is light enough for one 

person to carry.3 Many weapons, however, lie between these 

2 For ease of exposition, we will use the term Arms to refer to those 

weapons that fall within the scope of the Second Amendment.

3 See Matthew Seelinger, The M28/M29 Davy Crockett Nuclear Weapon 

System, THE ARMY HISTORICAL FOUNDATION, https://armyhistory.org/them28m29-davy-crockett-nuclear-weapon-system/; see also Jeff Schogol, 

The Story of the ‘Davy Crockett,’ a Nuclear Recoilless Rifle Once Fielded by the 
4 Nos. 23-1353 et al.

extremes. The State of Illinois, in the legislation that lies at the 

heart of these cases, has decided to regulate assault weapons 

and high-capacity magazines—a decision that is valid only if 

the regulated weapons lie on the military side of that line and 

thus are not within the class of Arms protected by the Second 

Amendment. Several municipalities have done the same. The 

plaintiffs in these cases challenge that conclusion. Using the 

tools of history and tradition to which the Supreme Court directed us in Heller and Bruen, we conclude that the state and 

the affected subdivisions have a strong likelihood of success 

in the pending litigation. We therefore affirm the decisions of 

the district courts in appeals No. 23-1353 and 23-1793 refusing 

to enjoin these laws, and we vacate the injunction issued by 

the district court in appeals No. 23-1825, 23-1826, 23-1827, and 

23-1828. 

I. Background

A. The Act

At the center of these appeals lies a new statute in Illinois 

that took effect on January 10, 2023—a measure called the Protect Illinois Communities Act, Pub. Act 102-1116 (2023) (“the 

Act”). Some of the consolidated cases also implicate three municipal laws that cover much of the same ground, though the 

details vary: Cook County Ordinances No. 54-210 to 54-215; 

City of Chicago Municipal Ordinances 8-20-010 to 8-20-100; 

and City of Naperville Ordinances No. 3-19-1 to 3-19-3. We 

make note of the municipal laws only when their specific provisions affect our analysis. For the interested reader, the chart 

US Army, TASK & PURPOSE (Sept. 19, 2022), https://taskandpurpose.com/history/army-davy-crockett-tactical-nuclear-weapon/. 
Nos. 23-1353 et al. 5

in the Appendix to this opinion summarizes the relevant differences among these enactments.

The Act is a sprawling piece of legislation made up of 99 

sections that cover a vast array of regulatory and record-keeping matters, along with the provisions of interest here. The 

Act’s wide scope led to a challenge in Illinois’s courts for failing to comply with state-law requirements such as the singlesubject rule, the three-readings requirement, and the ban on 

special legislation. See Caulkins v. Pritzker, 2023 IL 129453 

(Aug. 11, 2023). The state supreme court upheld the Act 

against those contentions, and it also ruled that the Act did 

not violate the state constitution’s equal protection clause. It 

did not reach any argument about the Second Amendment, 

because it found that the plaintiffs had waived any reliance 

on that theory. The plaintiffs in these cases have not argued 

that the Act is invalid under state law.

The critical part of the Act for our purposes is its treatment 

of so-called assault weapons and large-capacity magazines.

Those sections institute something close to a ban on “assault 

weapons,” through the Act’s general prohibitions of the sale, 

possession, and use of a defined set of weapons. The Act also 

bans large-capacity magazines. The plaintiffs have not specified exactly which provisions of the Act they believe are unconstitutional under the Second Amendment, but we assume 

that their principal targets are 720 ILCS 5/24-1.9 and 5/24-1.10. 

Section 5/24-1.9 addresses the “[m]anufacture, possession, delivery, sale, and purchase of assault weapons, .50 caliber rifles, 

and .50 caliber cartridges,” and section 5/24-1.10 deals with 

“[m]anufacture, delivery, sale, and possession of large capacity ammunition feeding devices.”
6 Nos. 23-1353 et al.

The Act defines “assault weapon” using language that is 

largely borrowed from the expired Federal Assault Weapons 

Ban, which was a subsection of the Violent Crime Control and 

Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 

1796.4 The Illinois Act bans certain semiautomatic rifles and 

pistols. A semiautomatic rifle falls under the Act’s proscriptions if it has the capacity to accept a detachable magazine and 

one or more of the following features: a pistol grip or 

thumbhole stock; any feature capable of functioning as a protruding grip for the non-trigger hand; a folding, telescoping,

thumbhole, or detachable stock or a stock that otherwise enhances the concealability of the weapon; a flash suppressor; a 

grenade launcher; or a barrel shroud. 720 ILCS 5/24-

1.9(a)(1)(A). The definition also includes a semiautomatic rifle 

with a fixed magazine capacity of greater than 10 rounds, except those that accept only .22 caliber rimfire ammunition. Id. 

5/24-1.9(a)(1)(B). Finally, there is a lengthy list of particular 

models that fall within the scope of the statute. See 5/24-

1.9(a)(1)(J). Subpart (i) of that section covers all AK weapons, 

and subpart (ii) covers all AR types. In the remainder of this 

opinion, we will refer often to the AR-15 as a paradigmatic 

example of the kind of weapon the statute covers. We use it

only illustratively, however; our analysis covers everything 

mentioned in the Act.

The Act makes it unlawful for any person within Illinois

knowingly to “manufacture, deliver, sell, import, or purchase ... an assault weapon, assault weapon attachment, .50 

caliber rifle, or .50 caliber cartridge.” Id. 5/24-1.9(b). (Unless 

the context requires otherwise, from this point we use the 

4 The more formal name of the relevant part of the law was the Public 

Safety and Recreational Firearms Use Protection Act.
Nos. 23-1353 et al. 7

term “assault weapon” to cover all four covered items, in the 

interest of readability.) With some exceptions, the Act also 

makes it unlawful as of January 1, 2024, for any person within 

the state knowingly to “possess an assault weapon.” Id.

5/24-1.9(c).

There are two significant exceptions to these prohibitions. 

Using the terminology the Supreme Court of Illinois adopted 

in Caulkins, the first is for “trained professionals” and the second is for “grandfathered individuals.” 2023 IL 129453 at ¶ 1. 

The list of trained professionals, set forth in 5/24-1.9(e), includes peace officers; qualified active and retired law-enforcement officers; prison wardens and “keepers”; members of the 

Armed Services, Reserves, or Illinois National Guard; nuclear 

facility guards; and licensed private security personnel. Id. 

5/24-1.9(e)(1)–(7). The “grandfather” provision can be found 

at 5/24-1.9(d). It states that the Act’s prohibitions do “not apply to a person’s possession of an assault weapon ... if the 

person lawfully possessed” that weapon as of the effective 

date of the law and then the person “provide[s] in an endorsement affidavit, prior to January 1, 2024, under oath or affirmation” certain specified information to the Illinois State Police. 

Id. 5/24-1.9(d)(1)–(3). A completed endorsement affidavit 

“creates a rebuttable presumption that the person is entitled 

to possess and transport the assault weapon.” Id. 5/24-1.9(d), 

at ¶ 2. The Act restricts the places where authorized persons 

may possess their weapons to the following: (1) private property owned or controlled by the person; (2) other private 

property, with the express permission of the owner or controller; (3) premises of a licensed firearms dealer or gunsmith 

for lawful repairs; (4) licensed firing ranges or sport shooting

competition venues; and (5) in transit to or from any of those 

locations, if the weapon is unloaded and in a container. Id.
8 Nos. 23-1353 et al.

5/24-1.9(d), at ¶ 3(1)–(5). The parties have not focused on 

these locational restrictions, and so neither will we.

Section 5/24-1.10 sets out the rules for large-capacity ammunition feeding devices. They are defined as a magazine (or 

similar mechanism) that can accept “more than 10 rounds of 

ammunition for long guns and more than 15 rounds of ammunition for handguns.” Id. 5/24-1.10(a), at ¶ 3(1). This provision also grandfathers in those who lawfully possessed a 

large-capacity magazine before the effective date of the Act, 

so long as the device is used in a permitted place. Id. 5/24-

1.10(d). It has an analogous set of exceptions for trained professionals. Id. 5/24-10(d), at ¶ 1. 

Broadly speaking, violations of the assault-weapon ban 

are classified as felonies when the violation involves guns or 

gun parts, and as misdemeanors when the violation involves 

.50 caliber cartridges. Id. 5/24-1(b).

B. The Lawsuits

The ink was barely dry on the pages of the Act when litigation began. Before us now are six related cases, in which 26 

plaintiffs have challenged the Act and the three municipal ordinances we mentioned earlier. All of the challengers contend 

that the legislation in question violates their Second Amendment right to keep and bear Arms. A brief review of the individual cases should help keep the issues straight.

1. Bevis v. City of Naperville (No. 23-2353) 

This case, filed in the Northern District of Illinois, was 

brought by three parties: (1) Robert Bevis, a Naperville resident and owner of Law Weapons, Inc.; (2) Law Weapons, Inc., 

a commercial firearms store in Naperville; and (3) the National Association for Gun Rights. We refer to them 
Nos. 23-1353 et al. 9

collectively as Bevis. Once the suit was filed and landed in 

Judge Kendall’s court, Bevis’s first step was to seek a preliminary injunction against both the Naperville ordinance and the 

Act. They were unsuccessful. Applying the standard fourpart test for preliminary injunctions established in Winter v. 

Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), 

Judge Kendall decided that the plaintiffs were unlikely to succeed on the merits. This would have been an easy conclusion 

under our decision in Friedman v. City of Highland Park, 784 

F.3d 406 (7th Cir. 2015), but the judge was concerned that 

Friedman’s methodology may have been undermined by 

Bruen, and so she undertook a fresh analysis of the merits using only Bruen. (We address Friedman’s continuing vitality below.)

Judge Kendall’s efforts convinced her that “[t]he history of 

firearm regulation ... establishes that governments enjoy the 

ability to regulate highly dangerous arms (and related dangerous accessories).” Bevis v. City of Naperville, No. 22 C 4775, 

2023 WL 2077392, at *14 (N.D. Ill. Feb. 17, 2023). She took particular note of longstanding regulations on Bowie knives and 

other “melee weapons.” Id. at *10–11. Next, she found that assault weapons fit within this tradition because they pose “an 

exceptional danger” compared with “standard self-defense 

weapons such as handguns.” Id. at *14. Critically for our purposes, after citing statistics about the lethality and injury rates 

of assault weapons, id., she highlighted the fact that “[a]ssault 

rifles can ... be easily converted to ... mimic military-grade 

machine guns,” id. at *15. Quoting from the Fourth Circuit, 

she observed that

the very features that qualify a firearm as a 

banned assault weapon—such as flash 
10 Nos. 23-1353 et al.

suppressors, barrel shrouds, folding and telescoping stocks, pistol grips, grenade launchers, 

night sights, and the ability to accept bayonets 

and large-capacity magazines—serve specific, 

combat-functional ends.

Id. (quoting Kolbe v. Hogan, 849 F.3d 114, 137 (4th Cir. 2017) (en 

banc), abrogated on other grounds by Bruen, 142 S. Ct. at 2126–27) 

(cleaned up). Finally, the judge noted that the high-capacity 

magazines exhibited similar dangers. Id.

This was enough, in her view, to show that the plaintiffs 

were not likely to succeed on the merits. Quickly looking at 

the other three criteria for a preliminary injunction, she also 

found that without a presumption of irreparable harm related 

to the alleged Second Amendment violation, plaintiffs could 

not satisfy that factor. Bevis had not shown that the gun shop

would lose substantial sales because of the two laws, and the 

organizational members retained other effective weapons for 

self-defense. Id. at *16. Finally, Judge Kendall concluded that 

neither the balance of equities nor the public interest favored 

plaintiffs sufficiently to overcome the inadequate showing on 

the other issues. Id. at *17. 

2. Herrera v. Raoul (No. 23-1793) 

The plaintiff in our next case, Javier Herrera, is a Chicago 

emergency room doctor who owns several assault weapons 

and large-capacity magazines. After the Act was passed, he 

filed a suit seeking both a temporary restraining order and a 

preliminary injunction against the Act, the Chicago ordinance, and the Cook County ordinance. Unlike Bevis, he also 

challenged the Act’s registration requirements (through 

which the grandfathering provisions are administered). This 
Nos. 23-1353 et al. 11

case was assigned to Judge Jenkins, who largely agreed with

the reasoning in Bevis. See Herrera v. Raoul, No. 23 CV 532, 

2023 WL 3074799 (N.D. Ill. Apr. 25, 2023). She rejected 

Hererra’s attempt to distinguish Bevis on the ground that his 

suit focused on the defense of his home, rather than on the 

public-carry right. Although she recognized that the analogies to Bowie knives and melee weapons were not perfect, she 

noted that Bruen did not demand a “dead ringer” or a “historical twin,” especially if there are “‘dramatic technological 

changes’ or ‘unprecedented societal concerns’ [that] may require a ‘more nuanced approach.’” Id. at *7, *9 (quoting Bruen, 

142 S. Ct. at 2133, 2132). 

With respect to the need to register a covered weapon in 

order to take advantage of the Act’s grandfathering provision, 

Judge Jenkins first assured herself that the question was ripe 

even though Herrera had not yet taken steps to register his 

guns. Id. at *8. Herrera made clear that he intended to disobey 

that law, that his intended conduct “[ran] afoul of a criminal 

statute,” and that the effective date of the registration requirement was “sufficiently imminent.” Id. (quotations omitted).

On the merits, however, she concluded that Herrera was unlikely to succeed because historical evidence showed that the

“colonies required gun registration in a variety of ways,” such 

as colonial “muster” requirements and a variety of tax requirements, “which in essence required that firearms be identified and disclosed to the government.” Id. at *9. She also took 

note of several 19th- and 20th-century laws as evidence of a 

“continuing tradition of state and national registration requirements.” Id. She found support for her ruling in the Bruen 

Court’s comment that “nothing in our analysis should be interpreted to suggest the unconstitutionality of existing ‘shall-
12 Nos. 23-1353 et al.

issue’ licensing laws.” Id. at *10 (quoting Bruen, 142 S. Ct. at 

2138 n.9 (cleaned up)). 

Although lack of likely success on the merits pointed 

strongly toward denial of preliminary injunctive relief, Judge 

Jenkins also looked briefly at the other three factors and found 

that they pointed in the same direction. She rejected the argument that there is an established presumption of irreparable 

harm for all Second Amendment challenges. Id. at *11. She 

was also unpersuaded by Herrera’s argument that the laws 

prevented him from protecting himself in his home and attending his monthly SWAT training (because of the commute 

time to retrieve his assault weapons from an out-of-county location). Herrera owned other compliant guns suitable for selfdefense, and he had managed the commute since 2018. Id. at 

*12. Lastly, she found that neither the public interest nor the 

equities pushed the needle far enough to justify an injunction. 

Id. at *13. 

3. Barnett v. Raoul (No. 23-1825) 

The perspective reflected in the third case, which arose in 

the Southern District of Illinois, is quite different from the first 

two. In Barnett and the three other cases that were consolidated with it, the plaintiffs included individual gun owners, 

commercial firearms dealers, and various organizations devoted to protecting and enhancing Second Amendment 

rights. Like their counterparts in the Northern District, these 

plaintiffs sought a preliminary injunction against the Act. Unlike the others, they succeeded. Judge McGlynn concluded 

that because the plaintiffs had brought a facial challenge to 

the Act, “the entirety of [the Act] as codified will be enjoined.” 

Barnett v. Raoul, No. 3:23-cv-00209-SPM (Lead Case), 2023 WL 

3160285, at *2 (S.D. Ill. Apr. 28, 2023). (We put to one side the 
Nos. 23-1353 et al. 13

fact that there are many provisions of the Act that have nothing to do with gun ownership or regulation. See generally

Pub. Act 102-1116 (2023). Presumably the judge did not mean 

to enjoin them, but if that is so, then the injunction does not 

comply with Federal Rule of Civil Procedure 65. That rule requires an injunction to indicate clearly what is forbidden or 

mandated—a rule necessitated by the fact that injunctions are 

enforceable by contempt. We need not explore this further, 

given our ultimate conclusion in these appeals.)

With obvious reference to the two sections of the Act that 

address assault weapons and high-capacity magazines, Judge 

McGlynn chose to start with the issue of irreparable injury, 

rather than likelihood of success on the merits. He found that 

there is a presumption of irreparable harm when plaintiffs 

mount a facial challenge under the Second Amendment, and 

even if there were not, these plaintiffs had shown irreparable 

injury because the restrictions on their ability to buy or sell

the weapons and accessories covered by the Act limited their 

right to armed self-defense. 2023 WL 3160285, at *4–5. 

The judge then moved on to likelihood of success on the 

merits. He rejected the defendants’ arguments that many of 

the Act’s provisions regulated only accessories (such as 

threaded barrels and pistol grips), which in themselves were 

not the Arms protected by the Second Amendment. Those 

items were “important corollar[ies] to the meaningful exercise 

of the core right to possess firearms for self-defense.” Id. at *8 

(quoting Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 

2011)). He then moved on to consider whether the Act was 

“consistent with this Nation’s historical tradition of firearm 

regulation.” Id. at *9. For this purpose, he assigned to the defendants the burden of “(1) demonstrat[ing] that the ‘arms’ in 
14 Nos. 23-1353 et al.

[the Act] are not in ‘common use;’ and (2) ‘identify[ing] a wellestablished and representative historical analogue’ to [the 

Act].” Id. (quoting Bruen, 142 S. Ct. at 2128, 2133). He rejected 

the defendants’ argument that the weapons had to be in common use for self-defense. The defendants failed to carry their 

burden, he held, because they “focused almost entirely on 

AR-15 rifles and their commonality or lack thereof” instead of 

the many other weapons and accessories covered by the Act. 

Id. at *10. Accepting an argument of the plaintiffs in the cases 

now before us (as well as their amici curiae), the judge held 

that AR-15s and large-capacity magazines are “in common 

use” because a large number of people own them. Id.

Wrapping up, the judge characterized the defendants’ 

proposed historical analogues as inapt, because they were 

simply concealed-carry regulations, not outright bans on possession. Id. at *11. The balance of harms, in his view, decidedly 

favored the plaintiffs, as (in his words) “there can be no harm 

to a government agency when it is prevented from enforcing 

an unconstitutional statute,” id. (cleaned up and quotation 

omitted), and he saw no evidence in the record indicating 

how the Act would help Illinois communities. He noted that 

the Act “was purportedly enacted in response to the Highland 

Park [mass] shooting,” id. at *12, but that fact was not enough 

to overcome the injury it inflicted. 

II. Governing Law

A. Preliminary Injunction Standard

As our account of the proceedings in the district courts 

shows, we are not here today to rule definitively on the constitutionality of the Act or any of the municipal ordinances. 

The only issue before us concerns preliminary injunctive 
Nos. 23-1353 et al. 15

relief. The Bevis and Herrera courts denied motions for such 

an injunction, which would have suspended the operation of 

720 ILCS 5/24-1.9 and 5/24-1.10 (and the corresponding Naperville, Chicago, and Cook County ordinances), and the Barnett court granted the injunction (ostensibly against the entire 

Act, as we mentioned). We entered a stay of the Barnett injunction pending the resolution of these interlocutory appeals, 

which are authorized by 28 U.S.C. § 1292(a)(1); the order stipulated that the stay would remain in effect “until these appeals have been resolved and the court’s mandate has issued.”

As we mentioned earlier, the leading Supreme Court decision establishing the standard for granting preliminary injunctive relief is Winter v. Natural Resources Defense Council, 

Inc., 555 U.S. 7 (2008). The Court summarized the pertinent 

requirements as follows:

A plaintiff seeking a preliminary injunction 

must establish that he is likely to succeed on the 

merits, that he is likely to suffer irreparable 

harm in the absence of preliminary relief, that 

the balance of equities tips in his favor, and that 

an injunction is in the public interest.

Id. at 20. It elaborated on these factors in a later case dealing 

with the criteria for staying a court decision, Nken v. Holder, 

556 U.S. 418 (2009), noting there that “[t]here is substantial 

overlap between [the criteria for a stay] and the factors governing preliminary injunctions.” Id. at 434 (citing Winter, 555 

U.S. at 24). The two most important considerations are likelihood of success on the merits and irreparable harm. Id. With 

respect to the former, the Court said that “[i]t is not enough 

that the chance of success on the merits be ‘better than 
16 Nos. 23-1353 et al.

negligible.’” Id. (quoting and disapproving Sofinet v. INS, 188 

F.3d 703, 707 (7th Cir. 1999)). Nor is a mere possibility enough.

Id. As we put it in Illinois Republican Party v. Pritzker, 973 F.3d 

760, 763 (7th Cir. 2020), although the party seeking the injunction need not demonstrate likelihood of success by a preponderance of the evidence, that party must nevertheless make a 

“strong” showing that reveals how it proposes to prove its 

case. Similarly, a mere possibility of irreparable harm will not 

suffice. See Nken, 556 U.S. at 434–35; Winter, 555 U.S. at 22. 

Decisions such as Winter and Nken reflect the fact that “[a] 

preliminary injunction is an extraordinary remedy never 

awarded as of right.” Winter, 555 U.S. at 24. The party seeking 

the injunction bears the burden of showing that this type of 

relief is warranted. Nken, 556 U.S. at 433–34. We must also 

bear in mind, when a party is seeking to enjoin a statute, that 

legislative enactments are entitled to a presumption of constitutionality. See Flemming v. Nestor, 363 U.S. 603, 617 (1960) 

(quoting Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128 (1810)). 

Though we carefully evaluate any claim that a statute violates 

the Constitution, we assume that the legislative body—

whether Congress or a state legislature—was aware of constitutional limitations and endeavored to follow them.

Finally, we note that a hybrid standard of review applies 

to interlocutory review of a preliminary injunction: “we review the district court’s findings of fact for clear error, its legal 

conclusions de novo, and its balancing of the factors for a preliminary injunction for abuse of discretion.” Doe v. University 

of Southern Indiana, 43 F.4th 784, 791 (7th Cir. 2022) (brackets 

and quotation omitted). 
Nos. 23-1353 et al. 17

B. The Second Amendment

The basic contours of the second article of the Bill of Rights 

have become familiar, and so we will only summarize them 

here. In a crisp, if not enigmatic, way, it says this: “A well regulated Militia, being necessary to the security of a free State, 

the right of the people to keep and bear Arms, shall not be 

infringed.” U.S. CONST. amend. II. For many years, both the 

Supreme Court and scholars thought that there was a relation 

between the prefatory clause, which refers to the Militia, and 

the operative clause, which refers to the right to keep and bear 

Arms. See, e.g., ROBERT H. BORK, SLOUCHING TOWARDS 

GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 166

(rev. ed. 2003). But in Heller the Supreme Court severed that 

connection. Undertaking its own examination of the events 

that led up to the Amendment’s inclusion in the Constitution, 

it concluded that the Amendment recognized an individual 

right to keep and bear Arms.

At the same time, Heller held that “[l]ike most rights, the 

right secured by the Second Amendment is not unlimited.” 

554 U.S. at 626. It continued as follows:

From Blackstone through the 19th-century 

cases, commentators and courts routinely explained that the right was not a right to keep 

and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Id. This opened up new frontiers of litigation: Which weapons

are covered? What manner of “keeping and bearing” is protected? What purpose must or may the user have? Which people hold this right? The Heller Court recognized that there was 

much left to be resolved. It did give some hints, however. One 
18 Nos. 23-1353 et al.

important tea leaf for present purposes was its refusal to endorse the idea that the Amendment protects “only those 

weapons useful in warfare.” Id. at 624. It called this a “startling reading,” since that would have implied that machineguns—quintessential weapons used exclusively by the 

military, not private citizens—could not be regulated, in the 

face of the National Firearms Act’s restrictions on those weapons. Id.; see also Pub. L. No. 73-474, 48 Stat. 1236 (1934). 

Perhaps the most important expansion of Heller occurred 

in McDonald, in which the Supreme Court confirmed that the 

Second Amendment, like the First, Fourth, Fifth, Sixth, and 

Eighth Amendments, applies to the states through incorporation pursuant to the Fourteenth Amendment. See 561 U.S. at 

750. The late date of the McDonald decision—2010—explains 

why there are so few cases exploring the Second Amendment 

implications of state laws regulating weapons from the time 

the Amendment became part of the Constitution (1791) to the 

present. Under the view that prevailed until McDonald, the 

states were free to regulate weapons in any way compatible 

with their own constitutions. See generally Jeffrey S. Sutton, 

51 Imperfect Solutions: States and the Making of American Constitutional Law (2018). And they did so in countless ways—a 

point of some significance when we come to consider the history and tradition of regulation in this area. 

After McDonald, most courts of appeals adopted a twostep test for legality under the Second Amendment. See, e.g., 

Ezell, 651 F.3d at 702–03. Step one asked whether the “challenged firearms law regulates activity falling outside the 

scope of the Second Amendment right as it was understood 

[historically].” Id. If the regulated activity was unprotected, 

then the law in question was not subject to further Second 
Nos. 23-1353 et al. 19

Amendment review. If, however, history showed that the activity was protected, or the evidence was inconclusive, step 

two called on the court to balance the public benefit the government was seeking to achieve against the regulatory means 

it selected, using a form of heightened scrutiny. Id. at 703. 

Some courts, including our own, steered clear of that twostep approach. That explains the path we chose in Friedman, 

which dealt with exactly the same issue we face now: a ban 

on assault weapons and large-capacity magazines. Although 

the district court in Bevis thought that the reasoning in Friedman might not have survived Bruen, we see Friedman as basically compatible with Bruen, insofar as Friedman anticipated 

the need to rest the analysis on history, not on a free-form balancing test.

After briefly reviewing the holdings in Heller and McDonald, Friedman turned to the question of the scope of the individual right to keep and bear Arms. It began by summarizing 

the Court’s own historical analysis in Heller: 

[The Court] cautioned against interpreting the 

[Heller] decision to cast doubt on “longstanding 

prohibitions,” including the “historical tradition of prohibiting the carrying of ‘dangerous 

and unusual weapons.’” [554 U.S.] at 623, 627. It 

observed that state militias, when called to service, often had asked members to come armed 

with the sort of weapons that were “in common 

use at the time”, id. at 624, and it thought these 

kinds of weapons (which have changed over the 

years) are protected by the Second Amendment 

in private hands, while military-grade weapons 

(the sort that would be in a militia’s armory), 
20 Nos. 23-1353 et al.

such as machine guns, and weapons especially 

attractive to criminals, such as short-barreled 

shotguns, are not. Id. at 624–25. 

784 F.3d at 407–08. The plaintiffs in Friedman had contended 

that “there is no ‘historical tradition’ of banning possession of 

semi-automatic guns and large-capacity magazines.” Id. at 

408. But, we observed, “this argument proves too much: its 

logic extends to bans on machine guns, ... [but] Heller deemed 

a ban on private possession of machine guns to be obviously 

valid.” Id. (citing Heller, 554 U.S. at 624). That was so even 

though states “didn’t begin to regulate private use of machine 

guns until 1927,” and the federal government did not do so 

until 1934. Id.

The critical question of “[h]ow weapons are sorted between private and military uses,” we noted, “has changed 

over time.” Id. Anticipating Bruen, we rejected a historical focus on the 1920s, when these bans started to come into existence, and turned instead to the time of the Second Amendment’s adoption. Id. With respect to the common ownership 

and use question, we cautioned against circular reasoning: 

Machine guns aren’t commonly owned for lawful purposes today because they are illegal; 

semi-automatic weapons with large-capacity 

magazines are owned more commonly because, 

until recently (in some jurisdictions), they have 

been legal. Yet it would be absurd to say that the 

reason why a particular weapon can be banned 

is that there is a statute banning it, so that it isn’t 

commonly owned. A law’s existence can’t be the 

source of its own constitutional validity.
Nos. 23-1353 et al. 21

Id. at 409.5 We were not persuaded by the plaintiffs’ efforts to 

put semiautomatic weapons on the “private” or “mixed” side 

of the line between private or mixed private/military weapons, on the one hand, and weapons exclusively for military 

use, on the other. We were reluctant to place semiautomatic 

weapons in the former category for the simple reason that the 

Heller Court had not done so. Instead, in distinguishing United 

States v. Miller, 307 U.S. 174 (1939), we reaffirmed “the rule 

that the Second Amendment does not authorize private persons to possess weapons such as machine guns and sawed-off 

shotguns that the government would not expect (or allow) citizens to bring with them when the militia is called to service.” 

784 F.3d at 408. 

Conspicuously absent from our Friedman analysis is any 

hint of the two-part test that Bruen disapproved. We looked 

instead to the type of Arms that the Second Amendment has 

always protected for private use and contrasted them with 

weapons reserved for military use. We expressly declined to 

subject Highland Park’s law to means-end scrutiny. Id. at 410. 

Instead, we said, “we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the 

preservation or efficiency of a well regulated militia,’ ... and 

whether law-abiding citizens retain adequate means of selfdefense.” Id. (quoting Heller, 554 U.S. at 622 (quoting Miller, 

307 U.S. at 178)). This approach, we believe, is consistent with 

the methodology approved in Bruen. 

5 The dissent embraces the reasoning we rejected in Friedman; it asserts 

that circularity concerns are more hypothetical than actual. See post at 62 

n.4 (citing Friedman, 784 F.3d at 416 n.5 (Manion, J., dissenting)). 
22 Nos. 23-1353 et al.

Pointing to Wilson v. Cook County, 937 F.3d 1028 (7th Cir. 

2019) (per curiam), the dissent sees Friedman differently. It 

notes that one can find language in Wilson that characterizes 

Friedman as “evaluat[ing] the importance of the reasons for 

the [assault weapons ban] to determine whether they justified 

the ban’s intrusion on Second Amendment rights.” 937 F.3d

at 1036. But this language is pure dicta. It may represent the 

Wilson panel’s attempt to put a gloss on Friedman, but it did 

not change the actual legal test that Friedman applied. The issue in Wilson, recall, was whether Friedman could be reconciled with Ezell, which struck down Chicago’s ban on firing 

ranges within city limits. See id. at 1035. On that issue, Wilson 

found that “Friedman fits comfortably under the umbrella of 

Ezell” and that it “represents the application and extension of 

its principles to the specific context of a ban on assault weapons and large-capacity magazines.” Id. at 1036. Indeed, Wilson 

is notable for what it did not say: it never said that Friedman 

had used intermediate scrutiny or means-end balancing; and 

it did not depict Friedman as evaluating only the importance 

of the reasons behind the ordinance at issue there. The fleeting 

reference to the city’s reasons for adopting the ordinance, in 

short, was not part of the panel’s reasoning, and so, while certainly disapproved in Bruen, does not undermine the central 

analysis in the case.

We have now referred many times to Bruen, and finally, it 

takes center stage. Rejecting the two-part test adopted by the 

courts of appeals (which it derided as having “one step too 

many,” 142 S. Ct. at 2127), the Bruen Court elaborated on the 

test that Heller requires. See 142 S. Ct. at 2129–30. First, it said, 

the trial court must decide whether “the Second Amendment’s plain text covers an individual’s conduct.” Id. If so, 

then “the Constitution presumptively protects that conduct.” 
Nos. 23-1353 et al. 23

Id. at 2130. The analysis then moves to the second step, which 

calls on the “government [to] justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. The Court predicted that this 

second step would be relatively easy in some instances, when 

historical analogues are easy to find. But in other instances, it 

recognized that the task would be challenging. It singled out 

“cases implicating unprecedented societal concerns or dramatic technological changes,” which “may require a more nuanced approach.” Id. at 2132. 

Bruen also confirmed some additional points that inform 

our analysis. First, the Court said (not for the first time) that 

the Arms protected by the Second Amendment are not limited 

to those that were in existence at the time of its ratification, 

1791, or at the time the Fourteenth Amendment took effect, 

1868. Id. Second, the search is for a historical regulation that is

relevantly similar, not identical. Bearing in mind that “the central component” of the Second Amendment right is individual 

self-defense, id. at 2133 (quoting McDonald, 561 U.S. at 767

(emphasis in original)), the question is whether the modern 

and historical regulations “impose a comparable burden on 

the right of armed self-defense and whether that burden is 

comparably justified,” id. And the Court made it clear that this 

search was a meaningful one, not just a subterfuge for either 

upholding or striking down all modern laws:

[A]nalogical reasoning under the Second 

Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one 

hand, courts should not uphold every modern 

law that remotely resembles a historical analogue, because doing so risk[s] endorsing
24 Nos. 23-1353 et al.

outliers that our ancestors would never have accepted. On the other hand, analogical reasoning 

requires only that the government identify a 

well-established and representative historical

analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous 

enough to pass constitutional muster.

Id. (quotation and citation omitted, and second alteration and 

emphases in original). Finally, the Court’s decision in Bruen

builds on, rather than disturbs, Heller and McDonald. See id. at 

2157 (Alito, J., concurring); id. at 2161 (Kavanaugh, J., concurring). Justice Alito in particular took care to make this point 

when he wrote “[n]or does [Bruen] decide anything about the 

kinds of weapons that people may possess.” Id. at 2157 (Alito, 

J., concurring). Bruen simply “made the constitutional standard endorsed in Heller more explicit” and applied it to the 

handgun regulation at issue. Id. at 2134. 

Our task is to apply Bruen’s methodology to the four laws 

before us. We begin by assessing whether the assault weapons 

and large-capacity magazines described in those laws are 

Arms for purposes of the Second Amendment. If not, then the 

Second Amendment has nothing to say about these laws: 

units of government are free to permit them, or not to permit 

them, depending on the outcome of the democratic process. If 

they are properly characterized as Arms, then we must proceed to Bruen’s second step, at which the governments bear 

the burden of proof, and determine whether these laws pass 

muster.
Nos. 23-1353 et al. 25

III. Application to the Cases

A. Are the Covered Weapons “Arms”?

We begin by looking at the “plain text” of the Second 

Amendment to see whether the assault weapons and largecapacity magazines (terms that we, like the parties, continue 

to use as short-hand for the many items covered by these 

laws) fall within the scope of the “Arms” that individual persons are entitled to keep and bear. Both Supreme Court decisions and historical sources indicate that the Arms the Second 

Amendment is talking about are weapons in common use for 

self-defense. That is not to say that there are no other lawful 

uses for weapons—sporting uses, collection, and competitions come to mind as examples. But the constitutional protection exists to protect the individual right to self-defense, 

and so that will be our focus.

Our starting point is, once again, Heller. It began by interpreting the object of the Second Amendment right: Arms. See

554 U.S. at 581. It is worth a close look at this part of the opinion:

The 18th-century meaning is no different from 

the meaning today. The 1773 edition of Samuel 

Johnson’s dictionary defined “arms” as 

“[w]eapons of offence, or armour of defence.” 1 

Dictionary of the English Language 106 (4th ed.) 

(reprinted 1978). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as 

“any thing that a man wears for his defence, or 

takes into his hands, or useth in wrath to cast at 

or strike another.” 1 A New and Complete Law 

Dictionary; see also N. Webster, American 
26 Nos. 23-1353 et al.

Dictionary of the English Language (1828) (reprinted 1989) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military 

use and were not employed in a military capacity.

For instance, Cunningham’s legal dictionary 

gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays,

&c. and not bear other arms.” ... Although one 

founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence

generally made use of in war,” even that source 

stated that all firearms constituted “arms.” 1 J. 

Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 

37 (3d ed. 1794) (emphasis added). 

554 U.S. at 581–82 (first emphasis and ellipsis added, and 

“hereinafter” parentheticals omitted). Summarizing, the 

Court said that “the Second Amendment extends, prima facie, 

to all instruments that constitute bearable arms.” Id. at 582. 

But what exactly falls within the scope of “bearable” 

Arms? Not machineguns, the Court said, because they can be

dedicated exclusively to military use. See id. at 624. Yet a normal person can certainly pick up and carry a machinegun, or 

for that matter the portable nuclear weapons we mentioned at 

the outset. “Bearable” thus must mean more than “transportable” or “capable of being held.” See id. at 627 (discussing 

“weapons that are most useful in military service—M16 rifles 

and the like,” which “may be banned”).
Nos. 23-1353 et al. 27

The Court’s comments about the role of the militia shed 

light on the scope of the term “Arms.” It explained that “[t]he 

traditional militia was formed from a pool of men bringing 

arms ‘in common use at the time’ for lawful purposes like selfdefense.” Id. at 624. It then concluded that “the Second 

Amendment does not protect those weapons not typically 

possessed by law-abiding citizens for lawful purposes, such 

as short-barreled shotguns. That accords with the historical 

understanding of the scope of the right.” Id. at 625 (emphasis 

added). We take from this that the definition of “bearable 

Arms” extends only to weapons in common use for a lawful 

purpose. That lawful purpose, as we have said several times, 

is at its core the right to individual self-defense.

This approach is consistent with the historical antecedents 

on which the Second Amendment was based. Chief among 

those was the 1689 English Bill of Rights, which is a key precursor to the bills of rights in the U.S. state and federal constitutions. The 1689 Bill of Rights “explicitly protected a right to 

keep arms for self-defense.” McDonald, 561 U.S. at 768. Similarly, Blackstone explained that at the root of the right to bear 

arms, there is a “natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence.” Heller, 554 U.S. at 594 (quoting 

1 WILLIAM BLACKSTONE, COMMENTARIES *139, *140). State constitutional protections from the Founding Era confirm this understanding. As Heller observed, “nine state constitutional 

provisions written in the 18th century or the first two decades 

of the 19th ... enshrined a right of citizens to bear arms in defense of themselves and the state or bear arms in defense of 

himself and the state.” 554 U.S. at 584–85, 585 n.8 (citing the 

state constitutions of Pennsylvania, Vermont, Kentucky, Ohio, 
28 Nos. 23-1353 et al.

Indiana, Mississippi, Connecticut, Alabama, and Missouri) 

(quotations omitted).

In order to show a likelihood of success on the merits, the 

plaintiffs in each of the cases before us thus have the burden 

of showing that the weapons addressed in the pertinent legislation are Arms that ordinary people would keep at home 

for purposes of self-defense, not weapons that are exclusively 

or predominantly useful in military service, or weapons that 

are not possessed for lawful purposes. This search for the correct meaning of “Arms” for the Second Amendment is consistent with our approach to its companions in the Bill of 

Rights. When interpreting the text of a constitutional provision or a statute, we often resort to contemporaneous dictionaries or other sources of context to ensure that we are understanding the word in the way its drafters intended. In Fourth 

Amendment cases, we ask whether the place or item searched 

falls within the Amendment’s scope. See, e.g., California v. Ciraolo, 476 U.S. 207, 213–14 (1986) (aerial view of backyard). For 

purposes of the Sixth Amendment, before we apply the Confrontation Clause we must ensure that a particular statement 

was testimonial. See, e.g., Ohio v. Clark, 576 U.S. 237, 243–44, 

247 (2015) (child’s responses to questions from a teacher). The 

famous Fifth Amendment right against compulsory self-incrimination attaches only if the person is in custody, despite 

no mention of custody in the “plain text” of the Amendment. 

See, e.g., New York v. Quarles, 467 U.S. 649, 654 (1984).

We find substantial support for the proposition that the 

Arms protected by the Second Amendment do not include 

weapons that may be reserved for military use. We already 

have pointed to language in the Supreme Court’s opinions to 
Nos. 23-1353 et al. 29

this effect.6 The dissent, relying heavily on Staples v. United 

States, 511 U.S. 600 (1994), contends that the Court has already 

decided that the AR-15 is in common use, and thus that the 

weapon is presumptively immune from regulation. See post at 

67. We see no such holding in Staples. That case had nothing 

to do with the Second Amendment, which is mentioned nowhere in the opinion. The Court handed down the Staples decision five months before Congress enacted the Federal Assault 

Weapons Ban, when as a matter of federal law it was lawful 

to own an AR-15. (We assume that this statute is of little relevance to our historical inquiry, given the Supreme Court’s insistence that the relevant time to consult is 1791, or maybe 

1868, not the late 20th century.) The status of the AR-15 at the 

time Staples was decided provides a ready explanation for 

why the Court asserted (with no empirical support) that the 

AR-15 is among the weapons that have been “widely accepted 

as lawful possessions.” 511 U.S. at 612. Interestingly, the Staples Court contrasted the AR-15s with grenades, the possession of which it said “is not an innocent act.” Id. at 610 (quotation omitted). It said the same about “machineguns, sawedoff shotguns, and artillery pieces.” Id. at 611. Overall, we see 

6 We note, too, that this court was not the first to observe the line that 

Heller recognized, and which was applied to the states in McDonald. For 

example, over a decade ago, and three years before Friedman, one scholar

of the Second Amendment wrote that “Heller and McDonald ... focused on 

the right of a law-abiding person to have a handgun in his or her home for 

self-protection,” but “[n]either case foreclosed reasonable gun regulations,” including “bans on military weapons wholly unnecessary for ordinary self-defense,” “limits on the size of gun clips,” and “registration and 

permit requirements.” See Akhil Reed Amar, Gun Control After Newtown 

(Dec. 26, 2012), reprinted in THE CONSTITUTION TODAY: TIMELESS LESSONS 

FOR THE ISSUES OF OUR ERA 230, 231 (2016).
30 Nos. 23-1353 et al.

nothing in Staples that decides whether the Second Amendment protects AR-15s, though we do find much in the opinion 

that reinforces the line we discern from Heller, and which is 

confirmed by history.

When we compare the AR-15s and other semiautomatic 

weapons covered by the Act and its counterparts, we come to 

the same conclusion. Indeed, we asked the plaintiffs at oral 

argument to explain what distinguishes AR-15s from M16s, 

the military’s counterpart that is capable of both fully automatic operation and semiautomatic operation. The question 

is important precisely because Heller itself stated that M16s 

are not among the Arms covered by the Second Amendment; 

they are instead a military weapon. See 554 U.S. at 624, 627. 

The plaintiffs’ responses to our question were unconvincing. They argued, for instance, that civilians do not regard 

machineguns as useful for self-defense, but that is because 

they cannot purchase machineguns. It is not too much of a 

stretch to think that some people might like the fully automatic feature of a machinegun, if they were hoping to defend 

their families, their property, and themselves from invaders. 

The plaintiffs also noted that machineguns are more expensive than semiautomatic weapons, but we cannot believe that 

an item’s entitlement to constitutional protection depends on 

its price. Finally, with a nod to the “lawful use” criterion, the 

plaintiffs said that when machineguns were available to civilians (early in the 20th century), they were primarily used by 

criminals. But this tells us nothing about how use of those 
Nos. 23-1353 et al. 31

guns would have evolved, had they remained legal and readily available.7

Coming directly to the question whether the weapons and 

feeding devices covered by the challenged legislation enjoy 

Second Amendment protection, at the first step of the Bruen 

analysis, we conclude that the answer is no. We come to this 

conclusion because these assault weapons and high-capacity 

magazines are much more like machineguns and militarygrade weaponry than they are like the many different types 

of firearms that are used for individual self-defense (or so the 

legislature was entitled to conclude).8 Indeed, the AR-15 is almost the same gun as the M16 machinegun. The only meaningful distinction, as we already have noted, is that the AR-15 

has only semiautomatic capability (unless the user takes advantage of some simple modifications that essentially make it 

fully automatic), while the M16 operates both ways. Both 

7 It appears that there is a large and growing demand for guns in general. Since 1986, the number of guns manufactured each year has almost 

quadrupled, from around 3 million in 1986 to almost 11 million in 2013. 

See Scott Horsley, Guns in America, by the Numbers, NPR (Jan. 5, 2016), 

https://www.npr.org/2016/01/05/462017461/guns-in-america-by-thenumbers. There is no reason to think that machineguns would not have 

followed the same pattern, had they been lawful in civilian hands.

8 Obviously, many weapons are “dual use”: private parties have a 

constitutionally protected right to “keep and bear” them and the military 

provides them to its forces. In this sense, there is a thumb on the scale in 

favor of Second Amendment protection. When we refer to “military” 

weapons here, we mean weapons that may be essentially reserved to the 

military.
32 Nos. 23-1353 et al.

weapons share the same core design, and both rely on the 

same patented operating system.9

The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify 

the AR-15 by adding a “bump stock” (as the shooter in the 

2017 Las Vegas event had done) or auto-sear to it, thereby 

making it, in essence, a fully automatic weapon. In a decision 

addressing a ban on bump stocks enacted by the Maryland 

legislature, another federal court found that bump-stock devices enable “rates of fire between 400 to 800 rounds per minute.” Maryland Shall Issue v. Hogan, 353 F. Supp. 3d 400, 404 

(D. Md. Nov. 16, 2018) (quotation omitted). To the same effect, 

the Fourth Circuit noted that “[t]he difference between the 

fully automatic and semiautomatic versions of [the AR-15 and 

AK-47] is slight. That is, the automatic firing of all the ammunition in a large-capacity thirty-round magazine takes about 

two seconds, whereas a semiautomatic rifle can empty the 

same magazine in as little as five seconds.” Kolbe, 849 F.3d at 

125. The District of Columbia Circuit also noted that “semiautomatics ... fire almost as rapidly as automatics.” Heller v. 

District of Columbia, 670 F.3d 1244, 1263 (D.C. Cir. 2011), on remand from Heller, 554 U.S. 570; see also ATF Ruling 2006-2, at 

2 (Dec. 13, 2006) (discussing a device (apparently the “Akins 

Accelerator,” an early bump-stock device) that “is advertised 

to fire approximately 650 rounds per minute”).

9 See ARMALITE, INC., Technical Note 54: Direct Impingement Versus Piston Drive (July 3, 2010), available at https://wayback.archiveit.org/all/20120905024032/http://www.armalite.com/images/Tech%20Notes%5CTech%20Note%2054,%20Gas%20vs%20Op%20R

od%20Drive,%20020815.pdf. 
Nos. 23-1353 et al. 33

There are a few other differences between the AR-15 and 

the M16, but none that is relevant. The M16 has an automatic 

firing rate of 700 rounds per minute, while the AR-15 has a 

semiautomatic rate of “only” 300 rounds per minute—unless, 

as we have just noted, it is modified with, for example, a 

bump stock or a “binary” trigger, which can double the rate 

at which semiautomatic weapons can be fired. Both models 

use the same ammunition, deliver the same kinetic energy 

(1220–1350 foot-pounds), the same muzzle velocity (2800–

3100 feet per second), and the same effective range (602–875 

yards). And these comments apply with equal force to the 

high-capacity handguns that are restricted by these laws. The 

latter are almost indistinguishable from the 17- or 21-round 

M17 and M18 pistols that are standard-issue in the military.

But what about the possibility that the AR-15 (and its 

many cousins covered by the Act) as sold is an Arm, even 

though simple modifications can transform it into a military 

weapon? On the one hand, this might support an argument 

against the Act, which focuses initially on the product as sold. 

On the other hand, there is a serious question whether the legislature sought to prevent users from deconstructing weapons 

into (or assembling weapons from) their constituent parts in 

order to evade the core regulation. If the AR-15 by itself is not 

a machinegun because it fires “only” at the rate of 300 rounds 

per minute, and the auto-sear is also not a machinegun because it is just a component that holds a hammer in the cocked 

position, that would be a road map for assembling machineguns and avoiding legitimate regulations of their private 

use and carry. A question of this nature is raised in VanDerStok 

v. Garland, No. 4:22-cv-00691-O, 2023 WL 4539591 (N.D. Tex. 

June 30, 2023), appeal docketed, No. 23-10718, 2023 WL 4945360 

(5th Cir. July 24, 2023), and stay pending appeal granted sub nom.
34 Nos. 23-1353 et al.

Garland v. Vanderstok, No. 23A82, 2023 WL 5023383 (U.S. Aug. 

8, 2023), where the Supreme Court has issued a stay of a district court’s order vacating a federal “ghost gun” regulation, 

87 Fed. Reg. 24652 (Apr. 26, 2022). See also Garland v. Blackhawk Mfg. Grp., Inc., No. 23A302, 2023 WL 6801523 (U.S. Oct. 

16, 2023) (vacating a second injunction limited to the parties). 

Neither the parties nor the evidence before us addressed 

these points, but the district courts may explore them as the 

cases move forward. Better data on firing rates might change 

the analysis of whether the AR-15 and comparable weapons 

fall on the military or civilian side of the line. We note in this 

connection that it is one thing to say that the AR-15 is capable 

of firing at a rate of 300 rounds per minute and the comparable rate for the M16 is 700 rounds per minute, but quite another to address actual firing capacity, which accounts for the 

need to change magazines. No one here has suggested that 

the M16 comes with a 700-round magazine, or for that matter 

that the AR-15 comes with a 300-round magazine. Either one 

must be reloaded multiple times to fire so many rounds. Factoring in the reloading time, the record may show that the two 

weapons differ more—or less—than it appears here.

Turning now to large-capacity magazines, we conclude 

that they also can lawfully be reserved for military use. Recall 

that these are defined by the Act as feeding devices that have 

in excess of 10 rounds for a rifle and 15 rounds for a handgun. 

Anyone who wants greater firepower is free under these laws 

to purchase several magazines of the permitted size. Thus, the 

person who might have preferred buying a magazine that 

loads 30 rounds can buy three 10-round magazines instead. 

Based on the record before us, we are not persuaded that 

the AR-15 is materially different from the M16. Heller informs 
Nos. 23-1353 et al. 35

us that the latter weapon is not protected by the Second 

Amendment, and therefore may be regulated or banned. Because it is indistinguishable from that machinegun, the AR-15 

may be treated in the same manner without offending the Second Amendment. 

We conclude this portion of the opinion by stressing again 

that this is just a preliminary look at the subject. That assessment persuades us, as it did Judges Kendall and Jenkins, that 

the plaintiffs have not shown a strong likelihood of success on 

the merits. But, as we previously have recognized, Second 

Amendment challenges to gun regulations often require more 

evidence than is presented in the early phases of litigation. See 

Atkinson v. Garland, 70 F.4th 1018, 1023–25 (7th Cir. 2023) (vacating the district court’s order dismissing a Second Amendment challenge to a federal statute and remanding with a list 

of specific questions to consider as the case proceeded). There 

thus will be more to come, and we do not rule out the possibility that the plaintiffs will find other evidence that shows a 

sharper distinction between AR-15s and M16s (and each one’s 

relatives) than the present record reveals.

B. Historical Tradition

Although we are satisfied that these appeals can be resolved at the first step of the Bruen framework—are the weapons among the Arms protected by the Second Amendment—

for the sake of completeness we now turn to the question 

whether, if the weapons covered by the statutes before us 

ought to be considered bearable “Arms,” the laws nonetheless 

pass muster under Bruen’s second step. In short, are these 

laws consistent with the history and tradition of firearms regulation? Here, too, at the preliminary injunction stage, we 
36 Nos. 23-1353 et al.

conclude that the plaintiffs have not shown the necessary likelihood of success on the merits.

In discussing whether these assault weapons and large-capacity magazines are Arms protected by the Second Amendment, we have (as instructed by Bruen) confined ourselves to 

textual considerations. There is another aspect of the Bruen 

framework, which is whether the regulated weapons are “in 

common use.” There is no consensus on whether the common-use issue belongs at Bruen step one or Bruen step two. 

The plaintiffs argue that it belongs at the second step. We will 

assume (without deciding the question) that this is a step two 

inquiry, where the state bears the burden of proof. Even with 

that leeway, we do not find this factor to be very helpful.

In this respect, we find the analysis in Friedman to be particularly useful, and unlike the district courts, we do not believe that the relevant portion was undermined by Bruen. We 

recognized in Friedman that “common use” is a slippery concept. Suppose, for example, a new type of handgun is introduced to the market on January 1, 2024. As of that day, zero 

guns of that type have been sold. Yet if its characteristics are 

analogous to those of the many other types of handguns available for consumers, no one would say that this new handgun 

was not within the class of Arms protected by the Second 

Amendment. At the other end of the spectrum, consider the 

actual case of machineguns, which for a time were available 

for civilian purchase, but which were eventually withdrawn 

from that market. However popular machineguns might have 

been, either in organized crime circles or more generally, because their characteristics were military in nature, the decision to reserve them to military use was within the power of 

the legislature.
Nos. 23-1353 et al. 37

The dissent repeatedly makes the point that the assault 

weapons covered by the challenged legislation are obviously

in common use, because there are so many in private hands. 

Indeed, the dissent’s argument boils down to two propositions: first, it contends that the fact that many people own assault weapons insulates them from regulation; and second, it 

makes the surprising assertion that assault weapons are not 

particularly dangerous. The latter proposition finds no empirical support in the record, and the former, as we will explain, 

does not carry the day.

The plaintiffs present basically the same argument. One 

brief asserts that at least 20 million AR-15s and similar rifles 

are owned by some 16 million citizens (though they do not 

specify how many of these owners would fall within the large 

carveout created by the grandfather and the trained professional exceptions to the Act). The plaintiffs also assert that at 

least 150 million magazines with a capacity greater than 10 

rounds have been bought for private use. (The state criticizes 

these numbers for being based, it says, on “an unpublished, 

non-peer-reviewed paper recounting an online survey that 

does not disclose its funding or measurement tools.” We have 

no need for present purposes to resolve that dispute.) Cook 

County offers a different perspective, noting that of all the 

firearms in the country, only 5.3% are assault weapons, and 

that percentage includes those held by law-enforcement agencies. One is reminded of Mark Twain’s apocryphal remark, 

“There are three kinds of lies: Lies, Damned Lies, and Statistics.”

For the reasons set forth in more detail in Friedman, we decline to base our assessment of the constitutionality of these 

laws on numbers alone. Such an analysis would have 
38 Nos. 23-1353 et al.

anomalous consequences. The problem with this approach 

can be seen in the case of the AR-15. When, in 1994, the Federal Assault Weapons Ban made civilian possession of AR-15s 

(among other assault weapons) unlawful, see Pub. L. No. 103-

322, § 110102, 108 Stat. 1796, 1996, few civilians owned AR15s. But in 2004, after the legislation was allowed to expire 

pursuant to its sunset provision, id. § 110105(2), 108 Stat. at 

2000, these weapons began to occupy a more significant share 

of the market. Indeed, most of the AR-15s now in use were 

manufactured in the past two decades.10 Thus, if we looked to 

numbers alone, the federal ban would have been constitutional before 2004, but unconstitutional thereafter. This conclusion is essential to the plaintiffs’ position, yet it lacks both 

textual and historical provenance.

As this example illustrates, the idea of “common use” cannot be severed from the historical scope of the common-law 

right that the Second Amendment was designed to protect 

against encroachment. In other words, the relevant question 

is what are the modern analogues to the weapons people used 

for individual self-defense in 1791, and perhaps as late as 

1868. This would exclude the weapons used exclusively by 

the military—and every Framer of the Second Amendment 

was well aware by 1791 that the King of England had an impressive standing army, and that such weapons existed. The 

weapons used for self-defense are the ones that Heller, 

McDonald, Caetano, and Bruen had in mind—not a militaristic 

10 See Aaron O’Neill, Annual Share of AR-15 Assault Rifles in the Total 

Number of Firearms Manufactured in the United States from 1990 to 2020, 

STATISTA (June 2, 2023), https://www.statista.com/statistics/1388010/sharear-15-united-states-firearm-production-historical/. 
Nos. 23-1353 et al. 39

weapon such as the AR-15, which is capable of inflicting the 

grisly damage described in some of the briefs.

Bruen recognized that even Arms (i.e., non-militaristic 

weapons) may be regulated, as long as the regulation is “part 

of an enduring American tradition of state regulation.” 142 S. 

Ct. at 2155. A regulation is a part of this tradition if one can 

provide answers to two questions: (1) how, and (2) why, does 

a given regulation “burden a law-abiding citizen’s right to 

armed self-defense”? Id. at 2133. With respect to the “how” 

question, judges are instructed to consider “whether modern 

and historical regulations impose a comparable burden” on 

that right. Id. For all its disclaiming of balancing approaches, 

Bruen appears to call for just that: a broader restriction burdens the Second Amendment right more, and thus requires a 

closer analogical fit between the modern regulation and traditional ones; a narrower restriction with less impact on the 

constitutional right might survive with a looser fit. It is at this 

stage that many courts, as well as the state parties here, point 

to the long-standing tradition of regulating the especially 

dangerous weapons of the time, whether they were firearms, 

explosives, Bowie knives, or other like devices. (The regulations we list below are representative of this tradition.) The 

dissent cannot deny that regulation existed; it relies only on 

the fact that the particulars of those regulations varied from 

place to place, and that some were more absolute than others. 

But the same is true in our case. The laws before us have one 

huge carve-out: people who presently own the listed firearms 

or ammunition are entitled to keep them, subject only to a registration requirement that is no more onerous than many 

found in history. In addition, as we noted at the outset, the 

laws do not purport to regulate many other special uses. This 
40 Nos. 23-1353 et al.

is enough, in our view, to satisfy the “how” question Bruen 

identified.

The “why” question is another one that at first blush 

seems hard to distinguish from the discredited means/end 

analysis. But we will do our best. Bruen makes clear that the 

question whether a burden is “comparably justified” cannot 

be answered by pointing to the gravity of the harms the legislation was designed to avert and the appropriateness of the 

mechanism they adopt. See id. at 2133, 2129. The dissent 

chooses to take a purposive approach to this question: what 

were the reasons motivating the historical regulations, and do 

they map well onto the reasons behind the modern law? We 

confess to some skepticism about any test that requires the 

court to divine legislative purpose from anything but the 

words that wound up in the statute. Legislator A may have 

had one goal; Legislator B may have had another; and Legislator C might have agreed to vote for one bill in exchange for 

a reciprocal vote for Legislator D’s pet project later. That is 

why, as the author of Heller reminded us, “The text is the law, 

and it is the text that must be observed.” ANTONIN SCALIA, A

MATTER OF INTERPRETATION 22 (1997). 

The best one can say is that if the text of the legislation 

evinces its purpose (perhaps in an introductory Statement of 

Purpose, which many bills contain, or in some other prefatory 

provision), that is a valid source to consult in answering the 

“why” question. When we consult the text of the Act, we find

the best indication of its purpose in its name: “Protect Illinois 

Communities Act.” See Pub. Act. 102-1116, at § 1 (2023). Cf. 

Johnson v. Robison, 415 U.S. 361, 377 (1974) (noting that the 

name of a statute can emphasize its purpose). Historical regulations show that at least since the Founding there has been
Nos. 23-1353 et al. 41

an unbroken tradition of regulating weapons to advance similar purposes.

Once again, the dissent cannot dispute the existence of this

enduring American tradition. It tries to escape it, asserting

that “stop[ping] a mass casualty event,” or perhaps “stopping

escalating gun violence,” is the purpose of the statute, post at 

71, 74, yet it points to nothing in the Act that supports either 

of these specific characterizations. To be sure, the dissent 

notes that the bill enacted by the City of Naperville recites a 

few of the many mass shootings that have occurred during

the last decade. See post at 71 n.13.11 But the bill also expressly 

states that the purpose of the ordinance is to protect public 

health, safety, and welfare. See City of Naperville, Ill., Ordinance No. 22-099, at 4 (Aug. 16, 2022). The mass-shooting details appear to be nothing more than particular examples illustrating that broader purpose. The state’s attorney also informs us that the legislation was enacted after the Highland 

Park July 4 massacre. But we have not rested our opinion on 

this point, because in our view it comes too close to the 

means/end scrutiny that Bruen rejected. In any event we do 

not think it is appropriate to rely on extratextual considerations to answer the “why” question. The issue, whether we 

separate out “how” and “why” or we consider them a unified 

test, is whether the tools the legislature used were limited to 

those that the Second Amendment left for it, after (as the 

Court said in Heller, 554 U.S. at 635, and Bruen, 142 S. Ct. at 

2133 n.7) the Second Amendment itself performed the 

11 Indeed, the dissent relies solely on the municipal bill’s recitations as 

proof of the state statute’s purpose. It is quite the puzzle to try to square 

this interpretive method with the dissent’s lengthy criticism of our brief 

invocation of the name of the Act. See post at 63-65. 
42 Nos. 23-1353 et al.

necessary means/end balancing. As we have explained, we 

think that the legislatures involved here did stay within those 

boundaries.

Harking back to our examination of covered Arms, we 

find the distinction between military and civilian weaponry

to be useful for Bruen’s second step, too. Both the states and 

the federal government have long contemplated that the military and law enforcement may have access to especially dangerous weapons, and that civilian ownership of those weapons may be restricted.12 Many other weapons remain that are 

more universally available. That is enough to assure us that 

we are not creating some unbounded “military veto” over the 

types of Arms that can be regulated. History and tradition 

leave no doubt that certain weaponry is for the state only: 

weapons such as the grenades, the machineguns, the artillery

pieces, and the like mentioned in Staples. See 511 U.S. at 611–

12. (And recall that the laws before us carve out not only the 

military, but police and security forces too, from their coverage.) And, as we now show, the distinction between the two 

uses is one well rooted in our history.

The following examples suffice to make the point:

12 We realize that all guns are dangerous when used as intended: a 

gunshot wound may be fatal or life-threatening. The Centers for Disease 

Control and Prevention estimate that 48,830 people died as a result of a 

firearm in 2021. See CENTERS FOR DISEASE CONTROL AND PREVENTION, National Center for Health Statistics: All Injuries (Sept. 13, 2023), 

https://www.cdc.gov/nchs/fastats/injury.htm. But the record indicates 

that there are important differences in the lethality of the military-grade 

weapons, as compared with guns that are commonly owned and used for 

self-defense and other lawful purposes. 
Nos. 23-1353 et al. 43

• In 1746, Boston outlawed the discharging of 

any cannon, gun, or pistol within city limits, 

but it explained that soldiers were still permitted to discharge weaponry on their training days. See Chapter 11—An Act to Prevent 

the Firing of Guns Charged with Shot[t] or 

Ball in the Town of Boston, §§ 1–3, in 3 THE 

ACTS AND RESOLVES OF THE PROVINCE OF THE 

MASSACHUSETTS BAY 1742-1756, at 309 (1878). 

• Other cities, such as Cleveland, Ohio, implemented similar ordinances throughout the 

19thcentury, again exempting military companies during drills. See Chapter 33—Fire 

Arms, §§ 417–423, in ORDINANCES OF THE 

CITY OF CLEVELAND 136–37 (H.L. Vail & L.M. 

Snyder, eds., 1890). 

• There are dozens of examples of Bowie knife 

regulations, forbidding or limiting the use of 

these dangerous weapons. Several of those 

featured military exceptions. In 1884, for example, Arkansas outlawed the sale of all 

dirks, Bowie knives, cane-swords, metal 

knuckles, and pistols, except as for use in the 

army or navy of the United States. See Chapter 53—Carrying Weapons, §§ 1907–1909, in

A DIGEST OF THE STATUTES OF ARKANSAS 490 

(W.W. Mansfield, ed., 1884). 

• Several city ordinances in the late 1800s followed suit, restricting the carry of a wide array of dangerous and concealable weapons 

(slingshots, metal knuckles, Bowie knives, 
44 Nos. 23-1353 et al.

daggers, pistols, and clubs), but exempting 

“peace officers” and “conservator[s] of the 

peace.” See Chapter 6—Offenses Against the 

Peace of the City, § 182, in THE REVISED 

ORDINANCES OF PROVO CITY 106–07 (1877); 

Chapter 534—Ordinances of Baltimore, 

§ 742A, in THE BALTIMORE CITY CODE 297–98 

(John Prentiss Poe, ed., 1893). 

• The federal government continued this tradition when it began passing gun control 

laws. The National Firearms Act of 1934 imposed taxation and registration requirements on all guns, but it exempted transfers 

to the U.S. government, states, territories, 

political subdivisions, and peace officers. 

See Pub. L. No. 73-474, §§ 1-12, § 13, 48 Stat. 

1236, 1236-40, 1240 (1934). 

• Federal restrictions expanded in 1968, when 

sale and delivery of destructive devices (defined as an “explosive, incendiary, or poison 

gas bomb, grenade, mine, rocket, missile, or 

similar device”) and machineguns were severely restricted. See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 

90-351, § 921(a)(4), § 922(b), 82 Stat. 197, 227, 

230 (1968). Once again, these provisions did 

not apply to items sold to the United States 

or to any individual state. Id. § 925(a), 82 

Stat. at 233. 

• Machineguns were banned by the Firearm 

Owners’ Protection Act of 1986. Since then, 
Nos. 23-1353 et al. 45

civilian ownership has been capped at pre1986 levels and only military and law enforcement have access to these weapons. See 

Pub. L. No. 99-308, § 102(9), 100 Stat. 449, 453 

(1986). 

In short, there is a long tradition, unchanged from the time 

when the Second Amendment was added to the Constitution, 

supporting a distinction between weapons and accessories 

designed for military or law-enforcement use, and weapons 

designed for personal use. The legislation now before us respects and relies on that distinction. 

IV. Concluding Observations

We conclude with a few remarks about several additional 

issues in some of these cases that do not require immediate 

attention, and a reminder about the limits on our ruling.

First, we briefly comment on Herrera’s challenge to the 

constitutionality of the registration requirement that implements the grandfather exemption. He regards it as a burden 

on his Second Amendment rights, and he worries that it may 

in the future lead to confiscatory acts on the part of the state. 

If we are correct in our prediction that the state will prevail in 

its defense of the Act against the Second Amendment arguments, then the registration requirement will be valid as long 

as it can withstand rational basis review. At this juncture, we 

see nothing particularly onerous about it, though as with everything we have said, this is a preliminary assessment. Herrera has until the end of 2023 to file the necessary forms, and 

if he does so, he may retain all of the covered weapons he already owns; the Act will prohibit only his acquisition of additional assault weapons or high-capacity feeding devices. For 
46 Nos. 23-1353 et al.

its own reasons, the dissent agrees with us that the registration requirement should not be enjoined. See post at 76. 

Second, in this court none of the parties has developed any 

coherent argument that would distinguish restrictions on 

possession, on the one hand, from restrictions on sale or manufacture, on the other. One of the parties in Bevis is a gun 

store, but the implications of that have yet to be addressed. 

We thus have no comment on it.

Finally, we have no need to decide whether an alleged Second Amendment violation gives rise to a presumption of irreparable harm, and if so, whether any such presumption is 

rebuttable or ironclad. Given our decision that the plaintiffs 

have not shown that they have a strong likelihood of success 

on the merits, we think it best to save this point for another 

day. We also have no comment on the other two parts of the 

Winter inquiry: where the balance of equities lies, and what 

the public interest dictates.13

We close with an important reminder. Nothing that we 

have said here indicates that any state or municipality must 

enact restrictions on the ownership of assault weapons or 

high-capacity magazines. Unless preemptive federal legislation requires otherwise, this is an issue for the political process in each jurisdiction. The people of some states may find 

13 The governmental parties devoted considerable attention in their 

briefs to the horrors of the mass shootings that have occurred with distressing regularity throughout the country. Illinois reports that the mass 

shooting in the town of Highland Park on July 4, 2022, in which seven 

people were killed and another 48 were injured, inspired the Act. We have 

not relied on this point, however, because, as we have mentioned, it appears to depend on the type of means/end analysis that Bruen disapproved.
Nos. 23-1353 et al. 47

the arguments in favor of a lack of restrictions to be persuasive; the people of other states may prefer tighter restrictions. 

As long as those restrictions do not infringe on the constitutionally protected right to keep and bear the Arms covered by 

the Second Amendment, either choice is permissible. In the 

cases now before us, however, the plaintiffs have not shown a 

likelihood of success on the merits, based on the fact that military weapons lie outside the class of Arms to which the individual right applies.

In Nos. 23-1353 and 23-1793, we AFFIRM the district 

courts’ orders denying preliminary injunctive relief. In Nos. 

23-1825, 23-1826, 23-1827, and 23-1828, we VACATE the district court’s order granting preliminary injunctive relief. We 

also confirm that the stay we issued in these appeals will remain in effect until our mandate issues.

SO ORDERED. 
48 Nos. 23-1353 et al.

APPENDIX 

Jurisdiction Actions Prohibited Firearms Covered Magazines Covered

Illinois

• Manufacture

• Delivery

• Sale

• Purchase

• Possession (pre-existing 

possession and private 

post-Act use are permissible if registration requirements are met)

• Semiautomatic rifles that 

have one or more assault 

weapon-like modifications

• Semiautomatic pistols that 

have one or more assault 

weapon-like modifications

• Semiautomatic shotguns 

with a revolving cylinder 

or that have one or more 

assault weapon-like modifications 

• Various assault weapons 

listed by name

• Rifles—over 10 rounds

• Handguns—over 15 

rounds

Naperville • Commercial sale

• Semiautomatic rifles that 

can accept more than 10 

rounds or that have one or 

more assault weapon-like 

modifications

• Devices that accelerate the 

rate of fire of a semiautomatic rifle

• Various assault weapons

listed by name

N/A 
Nos. 23-1353 et al. 49 

Cook County

• Manufacture

• Sale

• Offer or display for sale

• Give

• Lend

• Transfer of ownership

• Acquire

• Carry

• Possession

• Semiautomatic rifles that 

have one or more assault 

weapon-like modifications

• Semiautomatic pistols that 

have one or more assault 

weapon-like modifications

• Semiautomatic shotguns 

with a revolving cylinder 

or that have or one more 

assault rifle-like modifications 

• Combination kits from 

which an assault weapon 

can be assembled

• Various assault weapons

listed by name

• Magazines over 10 rounds
50 Nos. 23-1353 et al.

Chicago

• Import

• Sale

• Manufacture

• Transfer of ownership

• Possession

• Semiautomatic rifles with 

the ability to accept a detachable magazine and that 

have one or more assault 

weapon-like modifications 

• Semiautomatic rifles that 

have a fixed magazine with 

the capacity to accept more 

than 10 rounds

• Devices that accelerate the 

rate of fire of a semiautomatic rifle

• Shotguns that have one or 

more assault weapon-like 

modifications

• Semiautomatic handguns 

that have one or more assault weapon-like modifications

• Various assault weapons

listed by name

• Handguns—over 15 

rounds
Nos. 23-1353 et al. 51

BRENNAN, Circuit Judge, dissenting. The Second Amendment “right of the people to keep and bear Arms” is not a second-class right. Yet the State of Illinois and several Illinois municipalities have categorically banned law-abiding citizens 

from keeping and bearing a sweeping range of firearms and 

magazines. In a remarkable conclusion, the majority opinion 

decides that these firearms are not “Arms” under the Second 

Amendment. Because the banned firearms and magazines 

warrant constitutional protection, and the government parties 

have failed to meet their burden to show that their bans are 

part of the history and tradition of firearms regulation, preliminary injunctions are justified against enforcement of the 

challenged laws. I respectfully dissent.

I

The Protect Illinois Communities Act, Pub. Act 102-1116, 

challenged in each case before us, dramatically redefines the 

legality of firearms and magazines in Illinois. It goes far beyond the prohibition of “assault rifles.” The Act eliminates the 

ownership, possession, and use for self-defense of many of 

the most commonly-owned semiautomatic handguns, shotguns, rifles, and magazines. Exceptions to the Act are narrow.

Specifically, the Act covers firearms, magazines, and an 

endorsement process for registration. The Act bans the manufacture, delivery, sale, import, and purchase of a vast array 

of weapons, 720 ILL. COMP. STAT. §§ 5/24-1(a)(16), 75/24-1.9(a), 

5/24-1.10(a)–(b), prohibiting them by their features, by their 

functions, and by name. The Act bans semiautomatic rifles 

with detachable magazines and one additional qualifying attachment, such as a pistol grip or a flash suppressor. Id. § 5/24-

1.9(a)(1)(A). “[A]ll AR type[]” rifles are banned, including 43 

named variants, such as the AR-15. The Act further prohibits 
52 Nos. 23-1353 et al.

“copies, duplicates, variants, or altered facsimiles with the capability of any such weapon.” Id. § 5/24-1.9(a)(1)(J)(ii). It also 

bans almost 100 more rifles by name. Id. § 5/24-1.9(a)(1)(J).

The Act restricts various other firearms as well. For example, a law-abiding citizen in Illinois can no longer purchase 

semiautomatic pistols that have “a fixed magazine with the 

capacity to accept more than 15 rounds,” regardless of any 

attachments. Id. § 5/24-1.9(a)(1)(D). The same goes for a semiautomatic shotgun with a fixed magazine holding more than 

five shells. Id. § 5/24-1.9(a)(1)(F)(v). The list of restricted weapons includes nearly all detachable magazines holding more 

than 10 rounds of ammunition for long guns and 15 rounds 

of ammunition for handguns. Id. § 5/24-1.10(a)(1)–(2). Many 

handguns, the “quintessential self-defense weapon” for the 

American people, District of Columbia v. Heller, 554 U.S. 570, 

629 (2008), come standard with magazines carrying more than 

15 rounds. As with semiautomatic rifles, after banning pistols 

by their features, the Act bans “[a]ll AR type[] pistols” and 

approximately 40 semiautomatic pistols by name. 720 ILL.

COMP. STAT. § 5/24-1.9(a)(1)(K).

Three municipal laws are also challenged, which are as or 

more restrictive than the Act. The City of Naperville ordinance is similar to the Act in most respects; both are 

challenged in Bevis. The Cook County and City of Chicago ordinances, challenged along with the Act in Herrera, are even 

broader. Cook County bans possession of “assault weapons,” 

COOK COUNTY, ILL. CODE § 54-211 and § 54-212, which includes semiautomatic pistols with the capacity to accept a detachable magazine and contain a qualifying attachment (such 
Nos. 23-1353 et al. 53

as a muzzle brake). The City of Chicago ordinance is similar. 

See CHI. MUN. CODE §§ 8-20-010, 8-20-075, 8-20-085.1

II

The parties dispute whether the state, county, and city 

bans respect the constitutional right to keep and bear arms. In 

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 

(2022), the Supreme Court set forth the framework for addressing those disputes. Rejecting means-end scrutiny, the 

Court held: “When the Second Amendment’s plain text 

1 The majority opinion uses the phrase “assault weapon” to simplify 

the covered arms. The appendix to the majority opinion uses a variety of 

terms to summarize the types of arms the four challenged laws categorically ban.

Still, the description in the appendix of the Act’s ban is underinclusive 

in some ways. The Act bans semiautomatic rifles with fixed magazines 

over 10 rounds (unless it fires .22 rimfire and is loaded with a tubular 

mechanism). ILL. COMP. STAT. § 5/24-1.9(a)(1)(B). The appendix uses the 

phrase “[s]emiautomatic pistols that have one or more assault weaponlike modifications,” most likely a reference to ILL. COMP. STAT. § 5/24-

1.9(a)(1)(C). More precisely, the Act also bans semiautomatic pistols with 

fixed magazines over 15 rounds. Id. § 5/24-1.9(a)(1)(D). Not included in 

the appendix are bump stocks and binary triggers (a device enabling the 

firing of two-rounds per trigger pull), which are both prohibited by the 

Act. Id. § 5/24-1(a)(14).

The Cook County ordinance mirrors the Act’s prohibitions, although 

it is stricter than the Act in that it bans semi-automatic handguns with 

fixed magazines over 10 rounds (as opposed to 15 rounds under the Act). 

COOK COUNTY, ILL. CODE § 54-211(2).

The City of Chicago ordinance is underinclusive in its description of 

the magazines covered. The ordinance prohibits any magazine holding 

greater than 15 rounds, encompassing magazines for all types of firearms 

(except for attached devices that only accept and operate with .22 rimfire 

ammunition), not just handguns. CHI. MUN. CODE § 8-20-010.
54 Nos. 23-1353 et al.

covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with 

the Nation’s historical tradition of firearm regulation.” Bruen, 

142 S. Ct. at 2129–30. 

The Second Amendment states in part, “the right of the 

people to keep and bear Arms, shall not be infringed.” U.S.

CONST. amend. II. The amendment presents several conditions for plain text coverage, which raise questions including: 

• Is the regulated population a covered “people?” See, e.g., Range v. Att’y Gen. United 

States, 69 F.4th 96, 101–03 (3d Cir. 2023) (en

banc); United States v. Sitladeen, 64 F.4th 978, 

983 (8th Cir. 2023); and 

• Is the conduct regulated “keep[ing]” or 

“bear[ing]” arms? See, e.g., Heller, 554 U.S. at 

582–92. 

We consider another question: Are the instruments regulated “Arms”? 

“Arms” in the Second Amendment is a broad term that 

“covers modern instruments that facilitate armed self-defense.” Bruen, 142 S. Ct. at 2132. The term “extends, prima facie, to all instruments that constitute bearable arms, even 

those that were not in existence at the time of the founding.” 

Heller, 554 U.S. at 582. When the plain text of the Second 

Amendment covers an individual’s conduct, then the Constitution presumptively protects the conduct. Bruen, 142 S. Ct. at 

2129–30. That presumptive protection is of all bearable instruments that facilitate armed self-defense, even those not in existence at the time of the Founding. Id. at 2132, 2143 (citing 
Nos. 23-1353 et al. 55

Caetano v. Massachusetts, 577 U.S. 411, 411–412 (2016) (per curiam), and Heller, 554 U.S. at 627).2

As an initial matter, magazines—ammunition feeding devices without which semiautomatic firearms cannot operate 

as intended—are “Arms.” Such devices are required as part of 

the firing process. This court has recognized that corollaries 

to firearms fall within Second Amendment protection. See 

Wilson v. Cook County, 937 F.3d 1028, 1032 (7th Cir. 2019)

(quoting Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 

2011)). Further, the Act’s ban on magazines holding more 

than ten rounds for rifles and more than fifteen rounds for 

handguns effectively bans firearms that come standard with 

magazines over the limit. 

As for the broader definition of “Arms,” that term should 

be read as “Arms”—not “Arms in common use at the time.” 

In Heller, the Supreme Court recognized a “historical tradition 

of prohibiting the carrying of ‘dangerous and unusual weapons,’” 554 U.S. at 627, which may be regulated—a point it repeated in Bruen, 142 S. Ct. at 2143. 

The Court “did not say that dangerous and unusual weapons are not arms.” Teter v. Lopez, 76 F.4th 938, 950 (9th Cir. 

2023) (emphasis in original) (ruling that Hawaii statute banning butterfly knives violated Second Amendment). To be 

2 When the Supreme Court issued Bruen, it vacated several federal appellate decisions upholding gun controls laws, remanding them for reconsideration. Two of them—Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021),

and Ass’n of N.J. Rifle & Pistol Clubs Inc. v. Att’y Gen. N.J., 974 F.3d 237 (3d 

Cir. 2020)—concerned magazine limits of 10 rounds, and Bianchi v. Frosh, 

858 F. App’x 645 (4th Cir. 2021) (per curiam) (unpublished), upheld Maryland’s “assault weapons” ban.
56 Nos. 23-1353 et al.

sure, this does not mean that the Second Amendment bars 

governments from regulating weapons long held improper 

for civilian use. This reading of Bruen permits the government, for example, to preclude civilian ownership of military 

weaponry when the history and tradition of weapons regulation so dictates. As other examples, the government may prohibit sawn-off rifles and shotguns, which properly qualify as 

dangerous and unusual firearms as they are not ordinarily 

used by law-abiding citizens. See Heller, 554 U.S. at 625 (“[T]he 

Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, 

such as short-barreled shotguns.”). But that distinction does 

not determine whether a weapon is an “Arm.”

The government parties limit the Second Amendment 

right by importing the phrase “in common use” to assess 

whether firearms are “Arms.” But their reading improperly 

restricts the constitutional right. The banned firearms propel 

bullets by explosive force from gunpowder, yet the government parties ask us to conclude that these rifles and pistols 

are not “Arms.” As one amicus curiae submitted, “in common 

use” is a sufficient condition for finding arms protected under 

the history and tradition test in Bruen, not a necessary condition to find them “Arms.”3 The nature of an object does not 

change based on its popularity, but the regulation of that object can.

The government parties also incorrectly attempt to place a 

burden on the plaintiffs to show that the plain text of “Arms” 

includes the banned firearms. Bruen does not say that. Instead, Bruen states that when the Second Amendment’s text 

3 See D.E. 99, Brief for Amici Curiae Idaho, et al., at 6.
Nos. 23-1353 et al. 57

covers an individual’s conduct, the Constitution presumptively protects it. 142 S. Ct. at 2126, 2129–30. It is undisputed 

that the government then bears the burden of proof under 

Bruen’s history and tradition framework.

Whether a firearm is “in common use” is asked as part of 

the history and tradition analysis. At least two reasons support this reading. First, the “in common use” test in Bruen is 

drawn from the “historical tradition” of restrictions on “dangerous and unusual weapons.” Id. at 2143. The test is not 

drawn from a historical understanding of what an “Arm” is. 

Id. at 2132. Second, if a weapon is an “Arm,” it is only prima 

facie protected by the Second Amendment. Bruen, 142 S. Ct. 

at 2132 (quoting Heller, 554 U.S. at 582); see Teter, 76 F.4th at 

949–50 (placing “in common use” test in history and tradition 

test of Bruen).

The limitation of the Second Amendment right is addressed in Bruen’s history and tradition test. This requires the 

government to identify well-established and representative 

historical analogues to show that the modern regulation is 

consistent with a historical tradition of firearms regulation. 

Bruen, 142 S. Ct. at 2133. In performing this analogical inquiry, 

it is critical to fly at the right level of generality. Id. (“[A]nalogical reasoning under the Second Amendment is neither a 

regulatory straightjacket nor a regulatory blank check.”); see 

J. HARVIE WILKINSON, COSMIC CONSTITUTIONAL THEORY 44

(2012). Fly too high, and we risk any historical firearms regulation becoming an analogue. Under Bruen, courts must not 

“uphold every modern law that remotely resembles a historical analogue.” Bruen, 142 S. Ct. at 2133. (quoting Drummond 

v. Robinson, 9 F.4th 217, 226 (3d Cir. 2021)). Fly too low, and 

we risk myopia—nitpicking differences because a historical 
58 Nos. 23-1353 et al.

regulation is not a “dead ringer.” Id. We are looking for “a 

well-established and representative historical analogue, not a 

historical twin.” Id.

Before reviewing the approach to decide whether a regulation is an analogical fit, it helps to address what history and 

tradition refer to here. “History” means that analogous laws 

must be “longstanding” and from the relevant “timeframe.”

Id. at 2131, 2133 (citing Heller, 554 U.S. at 626). “History” helps 

establish the public meaning of the Constitution as “understood ... when the people adopted” it. Id. (citing Heller, 554 

U.S. at 634–35). The Court tells us that only two historical 

timeframes are relevant to the public understanding of the 

Second Amendment—the adoption of the Second Amendment in 1791 and the ratification of the Fourteenth Amendment in 1868. Id. at 2136. Laws enacted after the “end of the 

19th century” must be given little weight. Id. at 2136–37 

(cleaned up). “Tradition” means that the comparison must be 

to laws with wide acceptance in American society. Id. at 2136. 

Laws that enjoyed “widespread” and “unchallenged” support form part of our tradition. Id. at 2137. 

In Bruen, the Court reaffirmed that “individual self-defense is ‘the central component’ of the Second Amendment 

right,” Id at 2133 (citing McDonald, 561 U.S. at 767 (quoting

Heller, 554 U.S. at 599)), and expressly identified two questions to assess the analogical strength of a historical regulation: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Bruen, Id. at 2133. Put another way, how does the regulation limit the Second Amendment right, and why does it do so?

How. How a historical regulation addressed a particular 

problem, or whether it did at all, matters. “[I]f earlier 
Nos. 23-1353 et al. 59

generations addressed the societal problem, but did so 

through materially different means, that also could be evidence that a modern regulation is unconstitutional.” Id. at 

2131. Whether a given regulation was ever enforced, and to 

what extent, can be relevant here as well. Id. at 2149. 

Courts must also evaluate how historical “regulations burden a law-abiding citizen’s right to armed self-defense.” Id. at 

2133. Modern regulations that impose a “comparable burden 

on the right of armed self-defense” are more likely to be upheld. Id.

In assessing these comparable burdens, we consider the 

breadth of the ban and the weapon banned. For the breadth 

of the ban, the more expansive the limitation, the greater the 

burden on the Second Amendment right, which necessarily 

requires a close analogical fit. For the weapon banned, the 

burden on the right to keep and bear arms necessarily correlates with whether the prohibited weapon is “in common use 

at the time” of regulation. Id. at 2128, 2134, 2143. So, it is natural that categorical bans of weapons in common use will 

require an even stronger analogical fit with historical regulations. See id. at 2143–44 (rejecting the analogical value of 

alleged colonial era categorical bans on “dangerous and unusual” weapons because handguns are “unquestionably in 

common use today”).

Why. Why a historical regulation addressed a particular 

problem, or whether it did at all, is also key to evaluating its 

analogical value. In considering whether a historical regulation is an analogical fit, courts are to address whether the 

modern regulation and proposed historical analogue have 

comparable justifications for burdening the right to bear 

arms. Id. at 2133. If the reasons motivating the historical and 
60 Nos. 23-1353 et al.

modern regulations differ, there is no analogue. See id. at 2140, 

2144. Beyond doubt, this inquiry should not allow a return to 

interest balancing. See id. at 2131 (explaining that the Second 

Amendment itself “is the very product of an interest balancing 

by the people” (quoting Heller, 554 U.S. at 635)). Rather, the 

state’s current rationale for arms regulation only matters insofar as a historical regulation was motivated by similar reasons. If not, the analogy fails. See id. at 2144 (discussing the 

context of the colonial New Jersey restrictions, in which land 

disputes between planters and the colony’s proprietors 

caused planters to carry pistols).

The government can only defend a regulation by proving 

it is consistent with this country’s history and tradition. See 

Atkinson v. Garland, 70 F.4th 1018, 1020–21 (7th Cir. 2023). 

Whether that history and tradition allows regulating firearms 

in sensitive places, for the mentally ill, and for felons, is currently under debate. See, e.g., United States v. Rahimi, 61 F. 4th

443, 460–61 (5th Cir. 2023) (ruling that federal statute prohibiting possession of firearm by individual subject to domestic 

violence restraining order violates Second Amendment as inconsistent with historical tradition), cert. granted 143 S. Ct. 

2688. 

This understanding of the Bruen framework is different 

from that of my colleagues. First, the majority opinion 

acknowledges Bruen’s “in common use” language but criticizes it as spawning unworkable circularity issues: If the Second Amendment protects firearms in common use, then that 

right would turn on how quickly a state enacts regulations. If 

a firearm is outlawed quickly following its introduction to the 

market, then it has no chance of gaining common use and enjoys only limited or no Second Amendment protection. This
Nos. 23-1353 et al. 61

cannot be how the Second Amendment functions, the argument goes, as the speed of regulation should not bear on an 

arm’s constitutionality.

This circularity concern is far less pressing when the “in 

common use” language is properly situated. Because that 

consideration plays into the history and tradition analysis—

and not the scope of the Second Amendment’s text—it is not 

an “on-off” switch for constitutional protection. Just because 

a weapon is not in common use does not mean it falls outside 

the text of the Second Amendment; and just because a 

weapon is in common use does not necessarily mean a government is barred from regulating it. Proper inquiry requires 

full examination of the government’s evidence and historical 

analogues, keeping in mind that bans of weapons “in common use” are constitutionally suspect.

The Supreme Court certainly was not worried about circularity. In Bruen, the Court explicitly linked the Second 

Amendment analysis to “in common use.” See 142 S. Ct. at 

2128 (quoting Heller, 554 U.S. at 629) (explaining that “the Second Amendment protects only the carrying of weapons that 

are those ‘in common use at the time,’ as opposed to those that 

‘are highly unusual in society at large’”). The Court reasoned 

that even if handguns were once “dangerous and unusual,” 

such firearms “are unquestionably in common use today” 

and therefore receive robust Second Amendment protection. 

Id. at 2143. In Caetano, the Court addressed Second Amendment protections for a new electronic weapon. So many were 

in circulation (200,000 stun guns, far fewer than the approximately 25 million AR rifles) that the electronic weapon was 

deemed “commonly possessed by law-abiding citizens for 

lawful purposes ... .” 577 U.S. at 420. We are not free to ignore 
62 Nos. 23-1353 et al.

the Court’s instruction as to the role of “in common use” in 

the Second Amendment analysis.4

Next, my colleagues disagree with my approach to Bruen’s 

“why” question, raising the specter of purposivism. The majority opinion urges respect for the text of a statute alone, 

which I share. Indeed, a fair reading of a statute always “requires an ability to comprehend the purpose of the text, which 

is a vital part of its context.” See ANTONIN SCALIA & BRYAN A.

GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS

33 (2012); see also John O. McGinnis, The Contextual Textualism 

of Justice Alito, 14 HARV. J. L. & PUB. POL’Y PER CURIAM, at 2 

(2023) (describing Justice Alito’s use of context in interpretation). This is certainly a different task than interpreting a statute by reference to the intent of its drafters, which I agree is 

an inappropriate job for judges.

Still, Bruen requires us to consider the historical context 

giving rise to the statute (the “why”). Bruen looks at history 

and tradition to determine “the content of the preexisting legal right to bear arms.” Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy, 118 NW.

U. L. REV. 433, 469 (2023). And Bruen’s history and tradition 

approach is a different endeavor than statutory interpretation.

Often a statute takes center stage for a purpose other than 

to discern the scope of its legal rule, even when determining 

whether it violates a constitutional right. See Vill. of Arlington 

4 The circularity argument also is not new. See Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015). As Judge Manion explained in dissent, circularity concerns deal in the hypothetical more than the actual. Id. 

at 416 n.5.
Nos. 23-1353 et al. 63

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 (1977) 

(considering whether a discriminatory purpose was a motivating factor in a city’s zoning rules). For example, in Bruen

the Court considered Henry VIII’s “displeasure with handguns” due to his concern that they would “threaten[] Englishmen’s proficiency with the longbow,” which led to 

Parliament’s passage of handgun restrictions. 142 S. Ct. at 

2140. East New Jersey prohibited the concealed carry of 

pocket pistols in response to “‘strife and excitement’ between 

planters and the Colony’s proprietors ‘respecting titles to the 

soil.’” Id. at 2143–44. And Heller discusses the “public-safety 

reasons” behind several Colonial-era individual-arms-bearing statutes. Heller, 554 U.S. at 601. 

When looking to the text in its “why” analysis, the majority opinion relies on the Act’s title, Protect Illinois Communities Act. Set aside for the moment that “for interpretive purposes,” courts should only rely on titles to “shed light on 

some ambiguous word or phrase” in the text. See Trainmen v. 

Baltimore & Ohio R. Co., 331 U.S. 519, 529 (1947). Titles and section headings have a short history in the Anglo-American interpretive tradition—legislatures did not always include the 

title while debating the act. See SCALIA & GARNER at 221. If 

there is serious doubt as to whether those titles and headings 

received a fair shake in the legislative process, relying on 

them would make little sense. One influential treatise implores judges to check a state’s constitution for provisions that 

vouchsafe interpretive usefulness on a statutory title. See id. at 

224. 

As it turns out, the title of the Protect Illinois Communities 

Act has little interpretive utility. The Illinois Constitution has 

a provision grounding the title in the legislative process, but 
64 Nos. 23-1353 et al.

there is serious doubt whether the legislature obeyed it here. 

The so-called three-readings clause states: “A bill shall be read 

by title on three different days in each house.” ILL. CONST. art. 

IV, § 8(d). Reading rules exist precisely to ensure “that each 

House knows what it is passing and passes what it wants.” 

Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 

(1951) (Jackson, J., concurring) (explaining that the federal 

three-readings rule helps draw a line where debate ends and 

drafting begins).

Consider the procedural path of the Act, during which the 

Illinois legislature may very well have ignored the three-readings rule. See Caulkins v. Pritzker, No. 129453, 2023 WL 

5156850, at *17 (Ill. Aug. 11, 2023) (White, J., dissenting). A 

group of firearms owners challenged the Act in Illinois state 

court, arguing it violated several provisions of the Illinois 

Constitution. Id. at *1. The three-readings clause is one of 

these provisions, and the Supreme Court of Illinois rejected 

that claim only because the plaintiffs failed to cross-appeal it, 

a jurisdictional error warranting dismissal. Id. This legislation

began in the Illinois House with the title, “an Act concerning 

regulation,” and its synopsis described changes to the state’s 

insurance code. Id. at *17 (White, J., dissenting). The House 

read it three times by this title, then sent it to the Illinois Senate. Id. The Senate read it twice before the Senate adopted an 

amendment that “completely stripped the insurance provisions[,] ... replaced them with the ‘Protect Illinois Communities Act[,]’” and added the new bill’s popular title. Id. The day

the legislation became the “Protect Illinois Communities Act,” 

the Senate read it for the first time under the new title and 

passed it. Id. The Act was returned to the House the day after 
Nos. 23-1353 et al. 65

that and passed without a reading. Id. The Illinois Governor 

signed it later that day. Id.5 

Though the Act’s possible three-readings problem bears 

on neither the Second Amendment question nor the Act’s legitimacy, it remains a good reason to be skeptical of the interpretive value of language extrinsic to the operative text. Instead, I focus on permissible indicators of meaning.

III

Turning to this interlocutory appeal, the plaintiffs make a 

facial challenge to the Act and ordinances at the preliminary 

injunction stage. According to the Supreme Court in Nken v. 

Holder, 556 U.S. 418, 434 (2009), the two most important considerations at this stage are likelihood of success on the merits 

and irreparable harm. For the reasons explained below, plaintiffs have satisfied both considerations.

A 

As for likelihood of success on the merits, the firearms and 

magazines banned by the Act and ordinances are “Arms” under the plain text of the Second Amendment. These firearms 

and magazines are therefore presumptively protected.6 The 

government parties embrace a contrasting, very narrow view 

of the scope of the Second Amendment. They would limit this 

constitutional right to the facts in Heller and Bruen. Yet, as 

5 The Illinois Supreme Court decided that the Act does not violate certain provisions of that state’s constitution. Caulkins, 2023 WL 5156850, at 

*4–6. The court also ruled that a challenge based on the federal Second 

Amendment had been waived. Id. at *6.

6 Debates about grenades or rocket launchers are off subject. Some 

military weaponry is covered by federal statute, see 18 U.S.C. ch. 44, which 

is not challenged here.
66 Nos. 23-1353 et al.

examples, the First and Fourth Amendments would surely 

not be read in such a cramped manner.

Under Bruen’s history and tradition test, the government 

parties bear the burden to show that the banned arms are not 

in common use—or in other words, are not dangerous and 

unusual—and to identify historical analogues. As described 

above, Bruen reviewed Heller and set forth its test to determine if regulations satisfied the “how” and “why” test. Bruen, 

142 S. Ct. at 2128 (citing Heller, 554 U.S. at 626–34). 

The Act and ordinances here do not fall within a “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Heller, 554 U.S. at 627; see Bruen, 142 S. Ct. at 

2143. The banned arms are “in common use,” including for 

self-defense, hunting, and sporting pursuits. Each side 

chooses its metric—regulators divide the banned guns by the 

total number of firearms, and gun owners use gross numbers 

of the banned guns and magazines. Under either measure, the 

banned weapons and magazines meet the definition of “common”: “the quality of being public or generally used.” BRYAN 

GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 179 (Oxford, 

3d ed. 2011). More than 24 million AR rifles are estimated to 

be in circulation in this country.7 Magazines number far more: 

in 2020 it was estimated that approximately 160 million pistol 

and rifle magazines with a capacity of 11 rounds or more were 

in U.S. consumer possession from 1990–2018.8

7 Commonly Owned: NSSF Announces over 24 Million MSRs in Circulation, NAT’L SHOOTING SPORTS FOUND. (July 20, 2022), 

https://www.nssf.org/articles/commonly-owned-nssf-announces-over24-million-msrs-in-circulation/ [https://perma.cc/2LX6-UN3B]. 

8 Firearm Production in the United States, NAT’L SHOOTING SPORTS 

FOUND. 7 (2020), https://www.nssf.org/wp-content/uploads/2020/11/IIR-
Nos. 23-1353 et al. 67

Federal courts have recognized that the AR-15 rifle is common. In Staples v. United States, 511 U.S. 600 (1994), the Supreme Court offered comments in dicta stating how common 

AR-15s were at that time in this country. That case, which did 

not address the Second Amendment, turned on the question 

of mens rea, and the Court decided that to convict a person of 

possession of an unregistered machinegun, the government 

must prove the defendant knew that it would fire automatically. Id. at 619. In Staples, the Court contrasted the semiautomatic AR-15 with the automatic M16. Id. at 602 n.1, 603. 

Acknowledging “a long tradition of widespread lawful gun 

ownership by private individuals in this country,” the Court 

stated, “[e]ven dangerous items can, in some cases, be so commonplace and generally available that we would not consider 

them to alert individuals to the likelihood of strict regulation.” Id. at 610–11. Staples contrasted ordinary firearms such 

as the AR-15 in that case with “machineguns, sawed-off shotguns, and artillery pieces,” stating “guns falling outside those 

categories traditionally have been widely accepted as lawful 

possessions.” Id. at 612. 

Albeit pre-Bruen, two federal appellate courts also concluded that AR platform rifles are common. N.Y. State Rifle &

Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 255 (2d Cir. 2015)

(“Even accepting the most conservative estimates cited by the 

parties and by amici, the assault weapons and large-capacity 

magazines at issue are ‘in common use’ as that term was used 

in Heller.”); Heller v. District of Columbia, 670 F.3d 1244, 1261 

(D.C. Cir. 2011) (“We think it clear enough in the record that 

semi-automatic rifles and magazines holding more than ten 

2020-Firearms-Production-v14.pdf [https://perma.cc/3WK8-TVAV] (sum 

of pistol and rifle magazines with 11 or more rounds). 
68 Nos. 23-1353 et al.

rounds are indeed in ‘common use,’ ... .”). The firearms 

banned by the Act and ordinances here have achieved common use in the United States. They are not unusual.

As for magazines, Heller recognizes that ammunition feeding devices may store rounds in a way that the ammunition 

can be used immediately. 554 U.S. at 630. The Act and ordinances limit the number of rounds a magazine may contain to 

10 and 15. Nothing in the record supports these arbitrary limits. “Large”- or “high”-capacity magazine is a relative term, 

as pistols may ship with magazine sizes ranging from 5 to 20 

rounds, and common self-loading rifles have a standard magazine capacity of between 20 and 30 rounds.9 The numbers 

chosen in the Act and ordinances do not track the gun market 

and are not “in common use.” 

Even if AR platform rifles were unusual, they are not more 

dangerous than handguns. (Recall the test is “dangerous and

unusual.” (emphasis added). See id. at 627; Bruen, 142 S. Ct. at 

2143.) The semiautomatic mechanism in an AR-15 rifle is, in 

all material respects, the same as in a semiautomatic handgun. 

That mechanism is gas powered, and the impact of the pin 

firing the bullet pushes back the lock mechanism, ejects the 

9 David B. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 78 ALB. L. REV. 849, 874 (2015) (“It is indisputable in the modern 

United States that magazines of up to thirty rounds for rifles and up to 

twenty rounds for handguns are standard equipment for many popular 

firearms.”); id. at 859 (“The most popular rifle in American history is the 

AR-15 platform, a semiautomatic rifle with standard magazines of twenty 

or thirty rounds.”). Springfield, for example, ships a small handgun with 

a 5-round magazine. See XD-S Mod.2 OSP 3.3” Single Stack .45 ACP Handgun, SPRINGFIELD ARMORY (2023), https://www.springfield-armory.com/xd-series-handguns/xd-s-mod-2-osp-handguns/xd-s-mod-2-

osp-3-3-single-stack-45-acp-handgun [https://perma.cc/64NQ-KRWM]. 
Nos. 23-1353 et al. 69

old shell, and loads the new round from the magazine. If 

Bruen and Heller provide that semiautomatic handguns do not 

fail under the “dangerous” prong, the mechanism in the AR15 must survive scrutiny. Indeed, a handgun could be viewed 

as more dangerous than an AR-15 rifle because the handgun 

is less accurate and more concealable.10

AR-15s are not more dangerous because of the projectile 

used. The regulations challenged here do not speak to the 

type of round employed, but to the capacity of the magazines 

and the rate of fire. In this respect, an AR-15 and a semiautomatic handgun are very similar. Controlling for the same caliber of round, the difference between a Glock semiautomatic 

pistol and an AR-15 is just the stock and barrel length. Their 

rate of fire depends on how fast a trigger can be pulled. On 

that metric, an AR-15 is closer to a semiautomatic handgun 

10 One pre-Bruen analysis offered a test for “Arms” consistent with the 

elements Heller pointed to: common use, unusualness, dangerousness, 

and use by law-abiding citizens for lawful purposes. Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self Defense: An Analytical 

Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1481–82 (2009). 

Volokh suggested that “Arms” with the same level of practical dangerousness as those in common use are protected. Id. Machineguns fail this 

test due to their rapid rate of fire and the difficulty of firing them in a discriminating way. The same with short-barreled shotguns, which combine 

the lethality of a shotgun at the short distance characteristic of a criminal 

attack, and the concealability of a handgun. Id. at 1482.

The weapons banned by the Act and the ordinances here have the 

same practical dangerousness as those in common use among law-abiding 

citizens. See id. at 1485.
70 Nos. 23-1353 et al.

(protected in Bruen and Heller) than an automatic rifle such as 

the M16.11 

Though dangerousness can be measured by many metrics, 

it is best to focus on what we know. The traditional demarcation for regulation has been between automatic and semiautomatic weapons. Fully automatic weapons have long been 

heavily regulated, and lawfully owned, fully automatic firearms are very rare and expensive.12 The Act and ordinances 

violate that tradition.

The banned arms are “in common use.” They are commonly possessed by law-abiding citizens for lawful purposes, 

including self-defense. They may be “dangerous”—as are all 

firearms—but they are not “unusual,” and thus would not be 

within the history and tradition recognized in Heller of prohibiting “dangerous and unusual” weapons.

The Act and ordinances burden the rights of hundreds of 

thousands of law-abiding citizens to keep and bear the types 

of weapons and magazines that have long been deemed 

appropriate for self-defense. This leaves one option for the 

government parties—they must identify analogous weapons 

regulations from at or near the time of the Founding. These 

are the “how” and “why” questions of Bruen’s history and tradition test—“how” did the regulation burden the Second 

11 See STEPHEN P. HALBROOK, AMERICA’S RIFLE: THE CASE FOR THE AR15, at 9 (2022) (“The features that make an otherwise legal semiautomatic 

firearm an ‘assault weapon’ under various laws do nothing to affect the 

firearm’s functional operation and, if anything, promote safe and accurate 

use.”). 

12 See GARY KLECK, TARGETING GUNS: FIREARMS AND THEIR CONTROL

108–10 (1997).
Nos. 23-1353 et al. 71

Amendment right, and “why” was this regulation adopted? 

The government parties offer a variety of historical regulations on weapons. These regulations show, they argue, that 

the Act and ordinances are consistent with the Nation’s history and tradition. But the governments’ examples are not relevantly similar—their “how” and “why” set them apart from 

the Act and ordinances here. 

The government parties first point to regulations limiting 

the public carry of certain weapons, such as pistols, dirks (a 

long-bladed dagger), Bowie knives, and clubs. See, e.g., 1813 

Ky. Acts 100 (restricting concealed carry of weapons like 

pocket pistols, dirks, or swords in a cane, unless the individual was “travelling on a journey”); 1813 La. Acts. 172; 1819 

Ind. Acts 39. But those regulations are limited only to the public carry of certain weapons. The Act and ordinances here do 

more, prohibiting the sale and eventually the possession of 

the banned firearms. The “how” of the current regulations is 

more burdensome than historical regulations limiting public 

carry of weapons.

The Bowie knife example offered by the government parties and relied on by the district court in Bevis falls short as a 

historical analogue under the “how” and “why” questions. 

The Bowie knife was not categorically banned, just burdened 

in certain ways. The “how” is different, as it was taxed, or it 

could not be carried. The “why” for the Bowie knife was also 

different. The knife was regulated because it was used in duels, not to stop a mass casualty event—the “why” proffered

here.13 Laws banning Bowie knives are also a poor analogue 

13 For example, the Naperville ordinance states its bans are a direct 

response to mass shootings over the last decade. See NAPERVILLE, ILL.
72 Nos. 23-1353 et al.

because of what they ban. Guns and knives present different 

dangers. Bodily harm is inflicted up-close and personal with 

a knife, and from a distance with a gun. These differences caution that the “how” and “why” behind historical Bowie knife 

regulations are not so comparable to justify the bans here.

Elsewhere, the government parties note historical bans on 

the sale, possession, and carry of pocket pistols, revolvers, 

and other kinds of weapons. Such regulations appear to have 

been uncommon. One example is an 1837 Georgia statute stating, “it shall not be lawful for any merchant ... or any person 

or persons whatsoever, to sell, or offer to sell, or to keep, or to 

have about their person or elsewhere, any of the hereinafter 

described weapons, to wit: Bowie, or any other kinds of 

knives, manufactured and sold for the purpose of weapon, or 

carrying the same as arms of offence or defense, pistols, dirks, 

sword canes, spears ... save such pistols as are known and 

used as horseman’s pistols ... .” 1837 Ga. Acts 90, § 1; see also 

1879 Tenn. Pub. Acts 135–36, An Act to Prevent the Sale of 

Pistols, chap. 96 § 1; 1881 Ark. Acts 192, An Act to Preserve 

the Public Peace and Prevent Crime, ch. XCVI, § 3. 

These regulations also tended to restrict only unusual 

kinds of pistols, preserving the right to continue carrying 

army or navy pistols. Even more, Heller, McDonald, and Bruen 

have solidified the constitutional right to own and carry 

handguns, so it is unclear what insights to draw from these 

defunct regulations. The “how” of regulations like the Georgia statute are thus distinguishable. The current regulations 

do far more than limit small, uncommon handguns or other 

MUN. CODE tit. 3, ch.19 (reciting list of mass shootings and incorporating 

them into text of the ordinance). 
Nos. 23-1353 et al. 73

outlier weapons. They limit access to many of the most popular models of semiautomatic rifles, handguns, shotguns, and 

magazines. The Act and ordinances therefore impose a far 

greater burden on the right to keep and bear arms. If all that 

is not enough, the Supreme Court of Georgia declared the 

1837 statute unconstitutional to the extent it limited one’s constitutional right to carry arms openly. See Nunn v. State, 1 Ga. 

243, 251 (1846); Bruen, 142 S. Ct. at 2147 (discussing Nunn and 

the 1837 Act). 

Cook County contends that historical regulations on gunpowder support their current ordinance. The County argues 

that the “why” of those regulations is comparable to the 

“why” of the Act and the county’s ordinance—preventing 

mass casualty events. But the County’s argument “flies too 

high.” The “why” of the gunpowder regulations was to stop 

fires resulting from the combustion of stored flammable materials. Moreover, while gunpowder storage was regulated, 

purchasing and possessing gunpowder was not prohibited. 

Fire-safety laws do not create a comparable burden to an absolute ban on arms. See Heller, 554 U.S. at 632 (“Nothing about 

those fire-safety laws undermines our analysis; they do not 

remotely burden the right of self-defense as an absolute ban 

on handguns.”). Even more, the Court rejected this gunpowder analogy in Heller. Id. (“Justice Breyer cites ... gunpowderstorage laws that he concedes did not clearly prohibit loaded 

weapons, but required only that excess gunpowder be kept in 

a special container or on the top floor of the home. Nothing 

about those fire-safety laws undermines our analysis; they do 

not remotely burden the right of self-defense as much as an 

absolute ban on handguns.”).
74 Nos. 23-1353 et al.

Various government parties also offer as historical analogues regulations on trap or spring guns, fully automatic machineguns, and short-barreled rifles and shotguns. See, e.g., 18 

U.S.C. § 922(a)(4) (short-barreled shotguns and rifles); id.

§ 922(o) (machineguns); 1763–1775 N.J. Laws 346, An Act for 

the Preservation of Deer and Other Game, and to Prevent 

Trespassing with Guns, ch. 539, § 10 (trap guns). But the 

“how” and “why” of those restrictions are materially different as well. Trap or spring guns—rigged to fire when a string 

or other device is triggered by contact—do not provide a historical analogue. They fire indiscriminately, and the “why” of 

banning them—the imbalance of using lethal force to protect 

property versus human life—is different than the “why” the 

Act and ordinances seek to address of stopping escalating gun 

violence. Just so, machineguns can expend hundreds more 

rounds per second than even the fastest semiautomatic firearm, disqualifying such a law as an analogue. 

The majority opinion also relies on anti-carry laws as analogues. But the challenged Act and ordinances ban possession 

of arms. The distinction between anti-carry and anti-possession laws is critical: the first limits only the way a person may 

use a firearm in public; the second categorically denies possession of a firearm for any purpose. To elide this difference 

between anti-carry and anti-possession laws ignores Heller

and Bruen. Bruen states that the “central” consideration in assessing historical analogues is “whether modern and historical regulations impose a comparable burden on the right of 

armed self-defense and whether that burden is comparably 

justified.” 142 S. Ct. at 2133. 

This leaves only those regulations restricting semiautomatic firearms and ammunition feeding devices, but those 
Nos. 23-1353 et al. 75

regulations all come from the twentieth century. Even if valid 

for other reasons, Bruen states that regulations so far from the 

time of the Founding cannot meaningfully inform the history 

and tradition analysis. 142 S. Ct. at 2136–37 (“[W]e must also 

guard against giving postenactment history more weight than 

it can rightly bear.”). 

Even if the government parties had identified a historical 

analogue that satisfied the “how” and “why” inquiries of 

Bruen’s history and tradition test, a single such regulation was 

not enough in that case. 142 S. Ct. at 2153. In fact, three analogues were not enough in Bruen. Id. One can ask if there is 

any “why” in support of the Act and ordinances that did not 

also apply to the ownership and public carry of handguns in 

Bruen. If the “how” and “why” of handguns did not satisfy 

Bruen, what about these regulations supply a different 

“why”? This question was not adequately answered at oral 

argument.14

Because the Act and ordinances fail the “how” and “why”

questions of Bruen, the government parties have not met their 

burden that these regulations are “relevantly similar” to a historical law. Some hypothetical laws might satisfy the history 

and tradition test—say, a law that banned carbine rifles that 

hold more than six rounds, or possession of a pistol that need 

not be reloaded. Magazines fall within the category of 

“Arms,” so banning them must also satisfy the history and 

tradition test. For example, if there had been a historical analogue of “25 or fewer bullets is the number of shots a gun shall 

fire,” the government parties might rely on that. But no such 

laws have been cited for firearms or magazines. The 

14 Oral Arg. at 15:20.
76 Nos. 23-1353 et al.

government parties have failed to show that the Act and 

ordinances are consistent with the Nation’s history and tradition of firearm regulation. History and tradition do not support banning firearms and magazines so many citizens own, 

possess, and use for lawful purposes. 

To finish up likelihood of success on the merits, I agree 

with my colleagues that on this record, the registration requirement does not appear to be unconstitutional.

B 

On the second consideration for a preliminary injunction, 

an alleged constitutional violation often constitutes irreparable harm. See Int’l Ass’n of Fire Fighters, Loc. 365 v. City of East 

Chicago, 56 F.4th 437, 450 (7th Cir. 2022); 11A CHARLES ALAN 

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND 

PROCEDURE § 2948.1 (3d ed. 2022) (“When an alleged deprivation of a constitutional right is involved ... most courts hold 

that no further showing of irreparable injury is necessary.”). 

For some constitutional violations, particularly First Amendment violations, irreparable harm is presumed. Christian Legal 

Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006). Although the 

Supreme Court has not recognized a presumption of irreparable harm for Second Amendment violations, it has emphasized that the constitutional right to bear arms for self-defense 

is not “a second-class right, subject to an entirely different 

body of rules than the other Bill of Rights guarantees.” Bruen, 

142 S. Ct. at 2156 (citing McDonald v. City of Chicago, 561 U.S. 

742, 780 (2010) (plurality opinion)). 

This court has held that when a law is facially challenged 

under the Second Amendment, “the form of the claim and the 

substance of the Second Amendment right” create a “harm 

[that] is properly regarded as irreparable and having no 
Nos. 23-1353 et al. 77

adequate remedy at law.” Ezell, 651 F.3d at 699–700. In Ezell, 

the court likened the plaintiff’s alleged Second Amendment 

harm to a First Amendment challenge, implying a presumption of irreparable harm. Id. In accord, the Ninth Circuit has 

held that there is a presumption of irreparable harm where a 

Second Amendment right is violated. See Baird v. Bonta, 81 

F.4th 1036, 1046 (9th Cir. 2023) (“[W]e presume that a constitutional violation causes a preliminary injunction movant irreparable harm and that preventing a constitutional violation 

is in the public interest.”) Pre-Bruen, the D.C. Circuit concluded the same. See Wrenn v. District of Columbia, 864 F.3d 

650, 667–68 (D.C. Cir. 2017). 

Accordingly, a violation of the Second Amendment right 

presumptively causes irreparable harm. The Act and other ordinances challenged here violate the Second Amendment, 

and thus, irreparable harm has occurred. The majority opinion does not speak to irreparable harm.

Neither of the final two preliminary injunction factors—

balance of the equities and what the public interest dictates—

cuts against the plaintiffs. Gunshot victims and gun owners 

each claim harms, and what is in the public interest on questions of gun possession and ownership is constantly under 

public debate. So, I would rule that preliminary injunctions 

are justified against enforcement of the challenged laws.

IV 

In reaching the opposite result, the majority opinion applies precedent and reasoning that Bruen abrogated.

A 

Notwithstanding Bruen, the majority opinion relies on reasoning from this court’s decision in Friedman v. City of 
78 Nos. 23-1353 et al.

Highland Park, 784 F.3d 406 (7th Cir. 2015). See also Wilson v. 

Cook County, 937 F.3d 1028, 1035 (7th Cir. 2019) (relying on 

Friedman to dismiss a Second Amendment challenge to the 

Cook County ordinance banning assault weapons and largecapacity magazines). It is true that the Act regulates firearms 

and magazines in substantially the same way as the ordinances in Friedman (Highland Park) and in Wilson (Cook 

County), which were upheld. Compare 720 ILL. COMP. STAT. §§ 

5/24-1.9(a)(1), 1.10(a) with Friedman, 784 F.3d at 407 and Wilson, 

937 F.3d at 1029–30. As noted in I., the City of Chicago and 

City of Naperville ordinances are functionally similar to the 

Act and the Cook County ordinance. 

In Friedman, this court announced a unique test for Second 

Amendment questions: “whether a regulation bans weapons 

that were common at the time of ratification or those that have 

‘some reasonable relationship to the preservation or efficiency

of a well regulated militia,’ ... and whether law-abiding citizens retain adequate means of self-defense.” 784 F.3d at 410.

The government parties assert Friedman focused on the considerations identified by Heller and Bruen, specifically, 

historical evidence and the impact of the regulation on an individual’s meaningful opportunities for self-defense. Id.; Wilson, 937 F.3d at 1033. Friedman is therefore compatible with 

the constitutional analysis endorsed by Bruen, the government parties submit, and Friedman remains good law and 

should control the outcome here. 

But after Bruen, Friedman’s test is no longer viable, and 

much of Friedman is inconsistent with it. The Second Amendment’s “reference to ‘arms’ does not apply only to those arms 

in existence in the 18th century.” Bruen, 142 S. Ct. at 2132 

(cleaned up). That amendment’s operative clause “does not 
Nos. 23-1353 et al. 79

depend on service in the militia.” Id. at 2127. Indeed, the dissent in Bruen admitted that under the majority opinion’s holding the scope of the right to bear arms has “nothing whatever 

to do with service in a militia.” Id. at 2177–78 (Breyer, J. dissenting). And “the right to bear other weapons is ‘no answer’ 

to a ban on the possession of protected arms.” Caetano, 577 

U.S. at 421 (quoting Heller, 554 U.S. at 629). 

This court in Friedman based its decision in substantial part 

on its view of the benefits of the ordinance, including that the 

arms ban reduced “perceived risk” and “makes the public feel

safer.” 784 F.3d at 411–12. But Bruen emphatically rejected this 

sort of interest-balancing. 142 S. Ct. at 2127. Friedman also held 

that categorical bans may be proper even if the limits do not 

“mirror restrictions that were on the books in 1791.” 784 F.3d 

410. The Bruen decision superseded that, concluding that a restriction on Second Amendment rights will survive scrutiny 

only if “the government identif[ies] a well-established and 

representative historical analogue” to the regulation. 142 S. 

Ct. 2133. 

Friedman looked to history when it held that a court must

ask whether the arms were common at the time of ratification. 

784 F.3d at 410. But in Bruen, the Court was clear that “the 

Second Amendment’s definition of ‘arms’ ... covers modern 

instruments that facilitate armed self-defense,” “‘even those 

that were not in existence at the time of the founding.’” 142 S. 

Ct. at 2132 (quoting Heller, 554 U.S. at 582); see Caetano, 577 

U.S. at 411–12 (holding lower court’s decision that arms were 

unprotected because they were not in common use at the time 

of ratification was “inconsistent with Heller”).

In Wilson, this court described Friedman as “evaluat[ing] 

the importance of the reasons for the [ban] to determine 
80 Nos. 23-1353 et al.

whether they justified the ban’s intrusion on Second Amendment rights,” such as the “‘substantial’ interest[]” in “making 

the public feel safer” and “overall dangerousness.” Wilson, 

937 F.3d at 1036. But Bruen rejected that interest-balancing approach as “inconsistent with Heller’s historical approach.” 

Bruen, 142 S. Ct. at 2129. Governments may no longer “simply 

posit that the regulation promotes an important interest,” id. 

at 2126, or advances a “substantial benefit,” Friedman, 784 F.3d 

at 412. Wilson described Friedman’s application of an interestbalancing test as “intermediate scrutiny,” Wilson, 937 F.3d at 

1036, the approach Bruen expressly left behind.

Recently, in Atkinson v. Garland, 70 F.4th 1018 (7th Cir. 

2023), this court considered the new world Bruen presented 

for Second Amendment jurisprudence, in the context of possession of a firearm as a felon. Id. at 1022. There, we declined 

to avoid a Bruen analysis by relying on Heller and instead 

stated, “[w]e must undertake the text-and-history inquiry the 

Court so plainly announced and expounded upon at great 

length.” Id. Neither the majority nor the dissent in Atkinson

discussed or even cited Friedman, although those opinions relied on other pre-Bruen precedents from our court.

In sum, Bruen effectively abrogated Friedman and Wilson. 

The “history and tradition” methodology of Bruen is not the 

framework applied in either of those cases. “Stare decisis cannot justify adherence to an approach that Supreme Court 

precedent forecloses.” Fed. Trade Comm’n v. Credit Bureau Ctr., 

LLC, 937 F.3d 764, 767 (7th Cir. 2019). “When an intervening 

Supreme Court decision unsettles [this court’s] precedent, it 

is the ruling of the [Supreme] Court ... that must carry the 

day.” United States v. Wahi, 850 F.3d 296, 302 (7th Cir. 2017). 

That happened here, and the district court in Bevis correctly 
Nos. 23-1353 et al. 81

concluded that Friedman cannot be reconciled with Bruen. 

This court should review the challenged laws under Bruen’s 

framework, distinct from any interest-balancing approach, 

and separate from the reasoning employed in Friedman and 

Wilson. 

The majority opinion is correct that Friedman’s test differs 

from the two-step interest balancing test of other courts that 

Bruen replaced. Nevertheless, Friedman cites to history to compare the arms the regulation bans, rather than the regulations 

themselves. 784 F.3d at 410. Friedman discusses the features of 

the weapons, including whether they are in common use for 

militia or police functions. Id. It also examines the gun’s characteristics—such as its weight, caliber, and magazine capacity—as determinative of its value to self-defense. Id. at 411.

Representative of that analysis, the majority opinion engages 

in a matching exercise between the AR-15 and the M16, assessing the similarity and differences of the characteristics of 

the two firearms.

In stark contrast, in Bruen the Court did not say “Arms” 

are defined by using the history and tradition of military versus civilian weaponry, such as the line drawn in the majority 

opinion. Rather, the Court looked to common usage to define

the term “Arms.” Even more, the assessment in Bruen is 

whether a firearm regulation has a historical analogue, 142 S. 

Ct. at 2133, not whether a weapon does. Under Bruen’s framework, courts can entertain the parties’ arguments as to 

whether a regulation is a historical analogue. Per Bruen, 

whether firearm regulations were historically grounded in a 

military versus civilian distinction is to be performed as part 

of the history and tradition analysis, not in the plain text review, as the majority opinion does. 
82 Nos. 23-1353 et al.

B 

The majority opinion’s reasoning departs from Bruen in 

other ways, which I examine next. 

1. A weapon’s military counterpart does not determine

whether it is an “Arm.” 

The AR-15 is a civilian, not military, weapon. No army in 

the world uses a service rifle that is only semiautomatic.15

Even so, the majority opinion uses a civilian firearm’s military 

counterpart to determine whether it is an “Arm.” But neither 

Heller nor Bruen draw a military/civilian line for the Second 

Amendment. Similarity between the AR-15 and the M16 

should not be the basis on which to conclude that the AR-15 

is not a weapon used in self-defense. 

The majority opinion concludes that Heller limits the scope 

of “Arms” in the amendment to those not “dedicated to military use” and those possessed for a lawful purpose. Citing to 

“historical support” that “the Arms protected by the Second 

Amendment do not include weapons for the military,” the 

majority opinion focuses on Heller’s comment about the M16 

rifle. 554 U.S. at 627. The AR-15 and the M16 are similar weapons, my colleagues conclude, which means the AR-15 is beyond protection under the Second Amendment.

My colleagues read the passages in Heller discussing 

weapons with military capabilities too broadly, however, 

placing controlling weight on supporting or explanatory language in that decision. For example, Heller did not limit the 

scope of “Arms” to those without an analogous military 

15 E. Gregory Wallace, “Assault Weapon” Myths, 43 S. ILL. U. L.J. 193, 

205–06 (2018).
Nos. 23-1353 et al. 83

capacity. 554 U.S. at 581–82. The majority opinion emphasizes 

the statement in Heller that “Arms” are “weapons that were 

not specifically designed for military use and were not employed in a military capacity.” Maj. Op. at 26 (emphasis omitted). But this passage most naturally means that the public 

understanding of “Arms” encompassed more than weapons 

designed for or employed in a military capacity. At that section of Heller, the Court was refuting the argument that the 

Second Amendment only protected a military right to keep 

and bear arms. Instead, “Arms” was broad enough to include 

“any thing that a man wears for his defence, or takes into his 

hands, or useth in wrath to coast at or strike another.” Heller, 

554 U.S. at 581. That passage in Heller does not support a reading that weapons the military uses are not “Arms.”

Relying on Heller’s discussion of United States v. Miller—

the Supreme Court’s 1939 decision upholding a conviction 

under the National Firearms Act against a Second Amendment challenge—the majority opinion points out that militaristic weapons are not “bearable” and thus not “arms” at all. 

Justice Stevens in dissent in Heller viewed Miller as endorsing 

a military-only view of the Second Amendment. To him, Miller says regulating “the nonmilitary use and ownership of 

weapons” is fine—so the Amendment protects only the “right 

to keep and bear arms for certain military purposes.” Id. at 

637–38 (Stevens, J., dissenting).

But according to Heller, Miller does not say that the Second 

Amendment protects machineguns as part of ordinary military equipment. Rather, Miller explains that a short-barreled 

shotgun, the weapon at issue, is not “‘any part of the ordinary 

military equipment’” nor “‘could contribute to the common 

defense.’” Id. at 622 (quoting Miller, 307 U.S. at 178). In Heller, 
84 Nos. 23-1353 et al.

the Court explained, “we therefore read Miller to say only that 

the Second Amendment does not protect those weapons not 

typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Id. at 625. 

The majority opinion here quotes this passage and reframes it as a military-analogue test. It introduces the passage

with Heller’s observation that an M16 is “most useful in military service.” Id. at 627. But after Heller, we know Miller does 

not address a weapon’s military use. Because the National 

Firearms Act of 1934 targeted the firearms most commonly 

used by criminals and gangs, Miller’s “lawful use” language 

relates to criminal use, not military use.

One example of this military-analogue test falling short is 

when the majority opinion compares the rates of fire of the 

AR-15 and the M16. My colleagues credit the AR-15’s rate of 

fire as “‘only’ 300 rounds per minute,” which they do not see 

as a relevant difference from the M16’s 700 rounds per minute. Maj. Op. at 33. The two record sources they point to do 

not support a 300-rounds-per-minute rate; in fact, those 

sources give good reasons to doubt that figure. 

The first is the district court’s opinion in Bevis, which explains: “[A] shooter using a semiautomatic weapon can 

launch thirty rounds in as little as six seconds, with an effective rate of about a bullet per second for each minute of firing, 

meeting the U.S. Army definition for ‘rapid fire.’” Set to the 

side the district court’s concession that the effective rate is actually only sixty rounds per minute. For the 300-rounds-perminute figure, the district court cited a law journal article that 

spends nine pages discussing the dubious origins of the 300-
Nos. 23-1353 et al. 85

rounds-per-minute claim.16 Wallace agrees that 30 shots in six 

seconds is possible—if you are an expert at operating firearms 

and you neglect aiming and reloading.17

The second source that might be referenced for the figure

is a government witness’s report in Herrera. James Yurgealitis 

included a chart listing weapons, an ammunition type, and 

the “semiautomatic cyclic rate” of each. Each rifle, including 

“M-16/AR-15 Rifle,” has a cyclic rate of exactly 300 rounds per 

minute, and the three pistols have a rate of “300–400 rounds 

per minute.” Yurgealitis offers no source for his calculations. 

He does not describe the firing conditions or how the shooter 

timed the shots.

Yurgealitis describes the rate as “cyclic,” a type of fire 

where “the gunner holds the trigger to the rear while the assistant gunner feeds ammunition into the weapon.” DEP’T OF 

THE ARMY, ARMY TRAINING PUBLICATION: INFANTRY PLATOON 

AND SQUAD, ATP 3-21.8, at Appendix F. The cyclic rate “produces the highest volume of fire the machine gun can fire” 

and is a drastic step, as it “can permanently damage the 

machine gun and barrel and should be used only in case of 

emergency.” Id. It is difficult to see how a gunner could fire 

an AR-15 cyclically. Because it is a semiautomatic firearm, if 

the trigger were held to the rear, the cyclic rate would be one 

round per minute. Yurgealitis does not explain how this can 

be done.

The effective rate of fire, rather than the cyclic rate, would 

be a better comparison. There, Yurgealitis helps. He includes 

in his report a table from an Army field manual on rifle 

16 See Wallace, supra note 15 at 214–22.

17 See id. at 217–18.
86 Nos. 23-1353 et al.

marksmanship listing the M16’s maximum semiautomatic effective rate at 45 rounds per minute—more than four times 

slower than its maximum automatic effective rate.

Heller does not draw a line between firearms that are military counterparts and those that are not. That demarcation 

should not decide whether firearms and magazines are protected under the Second Amendment. 

2. A “military weapon” is defined too broadly.

Even if Heller drew such a line, the majority opinion’s 

standard for what constitutes a “military weapon” renders 

the “military” category substantially overbroad.

The majority opinion draws a line between “private” or 

“mixed private/military” weapons on one side (also characterized as “dual use” weapons) and “military weapons” on 

the other side. Military weapons are defined as “weapons that 

may be essentially reserved to the military,” Maj. Op. at 31 

n.8—meaning that a military weapon is one not made available for public use. The only “characteristic” that matters is 

that the government decided to ban it. “Dual use” weapons 

are those “private parties have a constitutionally protected 

right to ‘keep and bear’” and “the military provides [] to its 

forces.” Id. “In this sense, there is a thumb on the scale in favor 

of Second Amendment protection.” Id. Under the majority 

opinion’s definition, “dual use” weapons are on the side of 

the line protected by the Second Amendment.

Applying their framework, my colleagues find the AR-15 

“more like” the M16 by comparing the firearms’ characteristics. Id. To my colleagues, the firearms look the same (“same 

core design”), operate the same (“same patented operating 

system”), and have similar specifications (same ammunition, 
Nos. 23-1353 et al. 87

kinetic energy, muzzle velocity, and effective range), identifying “the only meaningful distinction” as an M16’s automatic-fire capability. Id. at 31–32. But because the AR-15 is not 

“essentially reserved to the military” and shares characteristics with “private” weapons, such as being semiautomatic, the 

AR-15 is at most a “dual use” weapon. So under the majority 

opinion’s categories, the AR-15 should warrant Second 

Amendment protection. 

In any event, because the majority opinion defines a military weapon as any that “may be essentially reserved to the 

military,” a weapon’s characteristics are not relevant to how 

it is categorized. Thus, any combat weapon would be a military weapon. This effectively allows the U.S. Armed Forces to 

decide what “Arms” are protected under the Second Amendment. Such a “military veto” is mistaken for at least three reasons.

First, the military has historically selected for commission 

firearms already publicly available and thus on the “dual use” 

side of the line. Privately available repeating and semiautomatic rifles, and the arms the American military selected for 

wartime use, overlapped substantially at least until the 1930’s.

When the Second Amendment was ratified, repeaters—

firearms capable of repeated firing before they required manual reloading—were useful for military purposes and were 

widely available for civilian purchase. The Girandoni air rifle, 

for example, was invented for the Austrian army.18 The 

“state-of-the-art repeater” at the time, the Girandoni was 

18 NICHOLAS J. JOHNSON, ET AL., FIREARMS LAW AND THE SECOND 

AMENDMENT: REGULATION, RIGHTS, AND POLICY 2206 (3d ed., 2021).
88 Nos. 23-1353 et al.

useful for hunting as well—Meriwether Lewis took one on his 

expedition.19 In 1828, the military awarded a contract to a 

gunsmith to produce the Jennings repeater for military use.20

But the military only “considered the guns promising” after 

seven years of “private use,” as the repeater had been circulating at least since 1821.21 Another repeater, the Henry, won 

a military contract after a Union captain used it to defend his 

home against seven Confederates who ambushed him while 

eating dinner with his family.22

In 1900, the military began considering semiautomatic rifles but, after years of searching, decided to stick with the 

.30’06 Springfield bolt-action rifle.23 Even though “semi-automatic rifles for the civilian market were abundant,” the military declined to select one because they were too complicated 

and brittle for field use.24 In the 1930s, the military’s desire to 

issue semiautomatic rifles caused it to “encourage[] ... private 

experimentation” in development and testing.25 A military 

veto contravenes the robust history of “dual use” weapons 

beyond the private sector.

19 See id.

20 See id. at 2221.

21 Id.

22 HORACE WILLIAM SHALER CLEVELAND, HINTS TO RIFLEMEN 180–81 

(1864). See also id. at 179 (reproducing letter from a private citizen testifying to the exceptional quality of the weapon).

23 See JOHNSON at 2233–34.

24 Id. at 2233.

25 Id. at 2234.
Nos. 23-1353 et al. 89

Second, the military has historically commissioned pistols, 

a firearm that is an “Arm” under Heller. Pistols have always 

been standard-issue military firearms. Under the majority 

opinion’s approach, Heller would have been mistaken. 

Major Pitcairn began the American Revolution with a shot 

from his pistol.26 General George Washington carried pistols 

into battle at Valley Forge, Monmouth, and Yorktown.27 In 

1811, a brigade major in the Massachusetts militia described 

the pistol as a standard weapon for an infantryman in a comprehensive guide to the day’s military science.28

The military has not stopped issuing pistols. In 1911, after 

lengthy trials and revisions with Colt and gun designer John 

Browning, the military selected for its troops the Colt Model 

1911.29 It is unclear whether that model was available for civilian purchase after the military contract in 1911. But like 

more common civilian handguns, the M1911 was semiautomatic and had an eight-round magazine.30 Indeed, the Civilian Marksmanship Program, a federally chartered 501(c)(3) 

26 See CHARLES WINTHROP SAWYER, 1 FIREARMS IN AMERICAN HISTORY:

1600 TO 1800, at 72 (1910).

27 See Evan Brune, Arms of Independence: The Guns of the American Revolution, AM. RIFLEMAN (July 2, 2021), https://www.americanrifleman.org/content/arms-of-independence-the-guns-of-the-american-revolution [https://perma.cc/9S69-T56Y]. 

28 See E. HOYT, PRACTICAL INSTRUCTIONS FOR MILITARY OFFICERS 111 

(1811).

29 See JOHNSON at 2232.

30 See id.
90 Nos. 23-1353 et al.

entity responsible for arranging sales of decommissioned military service weapons to the public, sells Colt M1911s today.31

In the 1980s, the military switched to the Beretta M9, a 

handgun with a counterpart available for purchase today on 

Beretta’s website. In fact, the M9 was designed and available 

to civilians a decade before the military selected it as the 

Beretta 92.32 The only differences between the military-issue 

M9 and the one for public sale are the markings, the dots on 

the sights, and the screw heads.33 Under the majority opinion, 

the military’s decision to award Beretta a military contract for 

the Beretta 92 would take the firearm out of the “Arms” protected by the Second Amendment.

Third, the military’s decommissioning and sale of its surplus weapons would mean that the Second Amendment right 

might spring into and out of life. The military sometimes decommissions service weapons and sells them to the public 

through the Civilian Marksmanship Program, as mentioned 

31 See About, CIV. MARKSMANSHIP PROG. (2023), 

https://thecmp.org/about/ [https://perma.cc/L7T5-6T5D];1911 Information, 

CIV. MARKSMANSHIP PROG. (2023), https://thecmp.org/sales-and-service/1911-information/ [https://perma.cc/7HQW-G3VJ].

32 See American Service Pistols & Civilian Counterparts, KEYSTONE 

SHOOTING CTR. (2023), https://keystoneshootingcenter.com/blog/american-service-pistols-civilian-counterparts [https://perma.cc/UG45-V46Q].

33 See Christopher Bartocci, Beretta Government vs Commercial M9 Identification, SMALL ARMS SOLUTIONS LLC (May 28, 2018), https://smallarmssolutions.com/home/beretta-government-vs-commercial-m8-identification [https://perma.cc/EDT4-JEXT]; Bob Campbell, Range Report: 

Beretta’s M9 Civilian Version, CHEAPER THAN DIRT: THE SHOOTER’S LOG

(Feb. 22, 2016), https://blog.cheaperthandirt.com/berettas-m9-civilian-version [https://perma.cc/VL7T-ZXQA] (“The M9 is a variant that’s as close 

to the military M9 as possible. The sights are marked in a different manner, and the finish differs from the standard M92.”). 
Nos. 23-1353 et al. 91

above. As with the M16, the military also decides not to renew 

contracts for weapons it deems no longer fit for military use.

The majority opinion does not explain the status of a weapon 

like this, including whether the right to possess it springs to 

life, or if its analogues become “Arms.” 

3. The examples given are not historical analogues. 

The majority opinion sets forth “the relevant question [a]s 

what are the modern analogues to the weapons people used 

for their personal self-defense in 1791, and perhaps as late as 

1868.” Maj. Op. at 38. But when declaring its holding in Bruen, 

the Court discussed historical analogues with reference not to 

weapons, but to regulations. Following Heller, Bruen considered “whether ‘historical precedent’ from before, during, and 

even after the founding evinces a comparable tradition of regulation.” Bruen, 142 S. Ct. 2111, 2131–32. “Only if a firearm 

regulation is consistent with this Nation’s historical tradition 

may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Id. at 

2126. 

The seven historical examples the majority opinion offers 

as comparators are laws or ordinances which it says support 

“a distinction between weapons and accessories designed for 

military or law-enforcement use, and weapons designed for 

personal use.” Id. at 45. For my colleagues, the challenged Act 

and ordinances carry forward this same distinction. Under 

Bruen, though, these examples do not satisfy the “how” and 

“why” questions in the history and tradition test, and thus are 

not comparators for the challenged Act or ordinances. 
92 Nos. 23-1353 et al.

The first example is a 1746 Boston ordinance outlawing the 

discharge of a cannon, gun or pistol within city limits.34 The 

second is an allusion to similar ordinances in Cleveland in the 

nineteenth century. The fourth refers to late nineteenth century ordinances restricting the carry of various weapons. except for peace officers. Such prohibitions differ, however,

from a categorical ban of a class of weapons from private 

ownership which burden the right of armed self-defense. 

Regulations against the discharge of weapons compare better 

to modern criminal statutes prohibiting, for example, the 

reckless discharge of a firearm. See 720 ILL. COMP. STAT. § 5/24-

1.5(a). And prohibitions on the carrying of certain weapons 

do not amount to a categorical ban of whole classes of firearms. These examples thus fail the “how” question in Bruen. 

The fifth, sixth, and seventh examples are the National 

Firearms Act of 1934 and two amendments to it: the Omnibus 

Crime control and Safe Streets Act of 1968, and Firearm Owners’ Protection Act of 1986. Yet these examples do not provide 

insight into the public understanding of the Second Amendment right in 1791 (or in 1868). They are too far removed from 

the ratification of the Constitution (or of the Fourteenth

Amendment) to qualify as historical analogues under Bruen. 

They therefore fail the “why” question in Bruen. 

The remaining third example cites dozens of Bowie knife 

regulations which forbid or limit their use, specifically citing 

an 1884 Arkansas statute outlawing “the sale of all dirks, 

Bowie knives, cane-swords, metal knuckles, and pistols, except as for use in the army or navy of the United States.” This 

34 Heller rejected this regulation as a historical analogue. 554 U.S. at 

633. 
Nos. 23-1353 et al. 93

law was passed after ratification of the Fourteenth Amendment and banned the sale of these knives. It did not categorically ban their possession. This example fails the “how” and 

the “why” test of Bruen for the reasons given previously.

Attempting to show that the “how” test has been correctly 

applied, my colleagues point to what they consider a “huge 

carve-out” in the Act. Maj. Op. at 39. To the contrary, exceptions to the categorical ban in the Act are narrow. The Act outright forbids the manufacture, delivery, sale, importation, and 

purchasing of the covered arms within the state of Illinois. On 

January 1, 2024, a total ban on possession of the covered arms 

takes effect. 720 ILL. COMP. STAT. § 5/24-1.9(c). Though an exception exists for those who submit a compliant “endorsement affidavit” to the Illinois State Police, id. § 5/24-1.9(d), the 

majority opinion mistakes its scope. The exception is limited 

to the sale or transfer of a covered arm: (1) to seven specially 

excepted classes of authorized persons; (2) to the United 

States; or (3) in another state or for export. Id. § 5/24-1.9(e). 

And the only people who can take advantage of this exception 

are current in-state residents who possess a covered arm prior 

to January 1, 2024, and future in-state residents who move 

into Illinois already in possession of a covered arm. Id.35 Such 

a narrow exception cannot legitimize a broad categorical ban

on the ownership, possession, purchase, and sale of a vast 

swath of arms.

For my colleagues, it is sufficient that the seven regulations deemed similar “are representative of [the] tradition” of 

35 The municipal ordinances are even more limiting, excepting from 

their reach only military and law enforcement personnel. NAPERVILLE,

ILL., MUN. CODE tit. 3 ch. 19 § 2; CHI. MUN. CODE § 8-20-075(b); COOK 

COUNTY, ILL. CODE § 54-212(a)(1). 
94 Nos. 23-1353 et al.

“regulating the especially dangerous weapons of the time.” 

Yet, Bruen requires more. The particulars of the historical analogues are critical; they illustrate whether the Act and the 

municipal ordinances place comparable burdens on the Second Amendment right when considered against historical analogues. Bruen itself gave weight to the differences between 

the particulars of regulations. 142 S. Ct. at 2148–49 (rejecting 

nineteenth century surety statutes as sufficiently analogous to 

restrictions on public carry because these laws did not constitute a “ban[] on public carry,” indicating their “burden” on 

public carry was “likely too insignificant.”). The examples the 

majority opinion cites may illustrate weapons regulation generally. But none of them is a categorical ban on an entire class 

of arms.

V 

Since Bruen, this is the first federal appellate court to uphold a categorical ban on semiautomatic weapons and certain 

magazines. 

The decision in Barnett was correct. The district court

properly rejected the notion that the Second Amendment protects only the possession and use of weapons for self-defense. 

The banned magazines are “Arms,” as are other appurtenances such as a pistol grip and a flash suppressor. The court

correctly read Heller and Bruen to locate “in common use” in 

Bruen’s history and tradition and applied the “how” and 

“why” test to conclude that concealed carry regulation differs 

from a ban on possession and does not pass as a historical analog This led the court to correctly issue an injunction against 

the Act.

The district court in Bevis correctly found standing, noted 

that unlike other constitutional amendments the Second 
Nos. 23-1353 et al. 95

Amendment protects a tangible item, and concluded that 

Friedman did not survive Bruen. I disagree, however, with the 

court’s decisions in Bevis to limit “Arms” to those weapons 

that are not “particularly dangerous,” and its justification of 

the Act and the Naperville ordinance under the historical test 

without mentioning Bruen’s “how” and “why” test. As noted 

above, the court’s Bowie knife analogue misses the mark. In 

Herrera the district court relied heavily on the memorandum 

opinion and order in Bevis, incorporating large parts of that 

decision.

I would affirm the decision in Barnett and reverse the decisions in Bevis and Herrera and lift our court’s stay on the injunction against the Act. I would vacate the decisions in Bevis

and Herrera and remand for the district court to reconsider the 

denial of the injunction against the challenged municipal ordinances.

For these reasons, I respectfully dissent.