GOA Petition to SCOTUS for Writ of Certiorari Against Illinois Categorical Ban on AR-15s

BY Herschel Smith
1 month ago

Here is the brief to the court. I will lift out most of “Reasons” section. I will make no attempt to either copy the footnotes or exclude references to them in the main body of the text.

Perhaps the Seventh Circuit’s most egregious error was its fundamental misunderstanding of the Second Amendment’s historical purpose. Concocting a “civilian” versus “military” distinction between those “Arms” that are constitutionally protected and those that are not, the panel concluded that hundreds of millions of common firearms and magazines may be banned simply for appearing to be more useful to a standing army than a private citizen. App.26. But if the Second Amendment is to have a “spirit and meaning,” Strauder v. West Virginia, 100 U.S. 303, 307 (1879), then this “spirit” is the elimination of firepower disparities between those who govern and those who consent to be governed. The Seventh Circuit has only exacerbated our modern imbalance (see Heller at 627-28), one that our forebears already would have found gravely concerning.

Remarkably, the panel majority asserted that, “in Heller the Supreme Court severed th[e] connection” between the Second Amendment’s prefatory and operative clauses. App.21. No doubt, this would have come as quite a shock to Heller’s author, who said literally the opposite, explaining that “[l]ogic demands that there be a link … [a] logical connection … between the [Second Amendment’s] stated purpose … its prefatory clause … and the command … its operative clause.”5 Id. at 577; see also at 598 (devoting an entire section to the “Relationship Between [the] Prefatory Clause and Operative Clause”).

But not only did Heller not “sever” the prefatory Militia Clause from the right “to keep and bear Arms,” it actually reinforced the Militia Clause’s significance. Heller pointed out that the militia was not separate from “the people” – it was drawn from the people: “[t]he traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense.” Id. at 624. This language does not indicate some dichotomy between military and civilian weapons – rather, they are now as they were at the Founding: “‘one and the same.’” Id. at 625.

The majority’s novel theory amounts to a wholesale rejection of this Court’s express language to the contrary, and was key to its Second Amendment revisionism, limiting “the right to keep and bear arms” only to what the majority decreed to be “civilian weaponry.”

In addition to flouting Heller, the panel’s proposition is as ahistorical as it is incoherent: that the Founders, who had just cast off the yoke of British oppression and were deeply skeptical of centralized military power, would undertake to deliberately handicap themselves at the starting gate by guaranteeing in writing that they could possess only inferior “arms,” including “weapons that may be reserved for military use.” App.33. Unsurprisingly, the opposite is true – the Founders set about to ensure that the ordinary citizen could access and maintain quintessentially “military” equipment as a last line of defense and failsafe against both foreign threats and domestic tyranny.

This Court repeatedly discussed that motivation in Heller. Noting that a “‘citizens’ militia’ [i]s a safeguard against tyranny” and “necessary to oppose an oppressive military force if the constitutional order broke down,” this Court recognized the Founders’ central concern that “the Federal Government would disarm the people in order to impose rule through a standing army or select militia.” Heller at 600, 599, 598. The district court below echoed that sentiment, noting that this “purpose of securing the ability of the citizenry to oppose an oppressive military, should the need arise, cannot be overlooked.” App.118. It defies logic that, in response to such a concern, the Founders would have endorsed the Seventh Circuit’s neutered conception of the right to keep and bear arms.7 Importantly, the Seventh Circuit’s imagined regime – wherein “the people” are relegated to firearms that are less powerful, useful, or effective8 than the “military” – would entirely undermine one of the militia’s central roles as an “oppos[ition]” force against tyranny.9 Heller at 599.

While acknowledging the importance of the ubiquitous citizen-soldier, this Court observed that “most undoubtedly thought [the Second Amendment] even more important for self-defense and hunting,” and that this effectuation of the right to self-defense constitutes the “central component of the [Second Amendment] right itself.” Heller at 599.10 But that focus on “self-defense” simply incorporates the Founders’ tyranny deterrent in different terms. Uncomfortable to modern proclivities as it may be, the inherent right to self-defense naturally encompasses defense against a rogue government. And it was this concern that predominated at the Founding.

Indeed, there is no shortage of authority on the Second Amendment’s liberty-preserving, tyranny deterrent value. For example, contemporaneous commentaries evince a preoccupation with ensuring the citizenry would be of equal match to the government’s standing army as a failsafe against despotism. American lexicographer and federalist Noah Webster wrote:

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.11

Alexander Hamilton had the same view, that an “army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”12 To hold otherwise – that the citizen ought to be vulnerable to the professional soldier – would invert the power structure the Founders intended to guarantee.

Disputing this Founding-era objective that the Second Amendment would guarantee parity of armament between the free citizen and the government infantryman, the majority below rejected the notion that “the people” should be “superior to” or “little if at all inferior” to the government they elect. Instead, the majority fashioned a new constitutional regime wherein certain “weapons [] may be reserved for military use.” App.33. But as the dissent noted, “neither Heller nor Bruen draw a military/civilian line for the Second Amendment.” App.89 (Brennan, J., dissenting). Indeed, contrary to the Seventh Circuit’s thoroughly modern “civilian” distinction, the Founders never distinguished between arms “protected for private use” and those “reserved for military use.” App.26. To the Founders, these weapons “‘were one and the same.’” Heller at 625.

They go on to excoriate the seventh circuit for their stolid analysis of the issues.

Friends of The Captain’s Journal Stephen Stamboulieh and Oliver Krawczyk wrote this brief, along with Rob Olson. A better constructed and more direct and honest one you will never find.

I have pointed out many times before that this distinction between military and civilian arms is a stupid distinction. Rocks were used in antiquity. Jesus told His disciples to carry swords in disobedience of the Roman law, making them lawbreakers. They carried the common military tool of combat of the day. Patriots carried the common weapon of war when they fought for independence against Britain, the very same weapons they used for hunting and self defense. The U.S. Marine Corps carried shotguns for warfare in Now Zad, Afghanistan, using the same sort of shells men today use for hunting and self defense. Long guns with rifled barrels are in common use today, and oftentimes civilians have better designed and built weapons than do the military our tax monies support. In fact, the best stress tests are always conducted by civilians before a firearm ever reaches the military field. Civilians don’t hold back in their criticism, and owe nothing to the firearms manufacturers who much of the time have the generals on their payrolls. Civilians are also not always looking for the lowest bidder.

It’s refreshing to know that the justices themselves and their clerks will hear the real reason for the second amendment, regardless of how it makes them feel.

Finally, Dr. Joyce Malcolm gives us a very good primer on the cultural milieu, history and tradition in which the founders were raised. After hearing her words, is there any doubt why the founders wanted a bulwark against tyranny?


  1. On March 19, 2024 at 9:51 am, Ken said:

    Sorry, but I just get the feeling that fighting this nonsense is the same as voting. The “You are not going to vote our way out of this” and “you are not going to get judges to follow the Constitution” seem…. the same. The fedgov is beyond redemption and must be removed root and branch. I just do not have hope of any other way. I just wish I was about 40 years younger.

  2. On March 19, 2024 at 11:18 am, Don't mind me. said:

    Don’t forget the 1718 Puckle machine gun. That alone dispells the “military” designation on any firearm. There can be no distinction between “military” and “civilian”.

  3. On March 19, 2024 at 4:31 pm, X said:

    It all goes back to U.S. v. Miller and the NFA. The Miller court was wrong and the NFA is unconstitutional. The “common use” test invented by the Miller court to justify a federal ban on SBRs, SBSs and machine guns is pure sophistry.

    That’s the bottom line. Most people — including “conservatives,” — would blanch at the prospect of allowing unfettered access to machine guns, but in fact that’s the way things were prior to 1934 when the country was much freer and there were NO federal gun laws at all.

    Besides, criminals will have machine guns whether they are legal or not. Look at the proliferation of Glock switches among urban negro gangsters. You think they give a hoot whether it’s an illegal NFA weapon or not? And they’re right to not give a damn when the DOJ fails to file NFA charges against them because it is too busy entrapping white gun club Fudds with “solvent traps” and diesel filters.

    Actually, if we follow the “logic” of the Miller court, then everyone should be able to buy a USGI full-auto 14″ M-4 and a 30-round mag because that is what is in “common use” by the military and the National Guard today… oddly enough they don’t follow Miller when it contradicts their gun-grab agenda.

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You are currently reading "GOA Petition to SCOTUS for Writ of Certiorari Against Illinois Categorical Ban on AR-15s", entry #36513 on The Captain's Journal.

This article is filed under the category(s) Second Amendment and was published March 18th, 2024 by Herschel Smith.

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