No.

23-A ___

In The
Supreme Court of the United States

NATIONAL ASSOCIATION FOR GUN RIGHTS; ROBERT C. BEVIS; and

LAW WEAPONS, INC d/b/a LAW WEAPONS & SUPPLY, an Illinois corpo-
ration,

Plaintiffs-Applicants,

v.

CITY OF NAPERVILLE, ILLINOIS and JASON ARRES,

Defendants-Respondents,

and

THE STATE OF ILLINOIS,

Intervening Party-Respondent

To the Honorable Amy Coney Barrett, Associate Justice of the United

States Supreme Court and Circuit Justice for the Seventh Circuit

Emergency Application for

Injunction Pending Review

BARRY K. ARRINGTON
ARRINGTON LAW FIRM
4195 WADSWORTH BOULEVARD
WHEAT RIDGE, COLORADO 80033
(303) 205-7870
[email protected]
Counsel for Applicants
 QUESTIONS PRESENTED

1. Is the State of Illinois’ absolute ban of certain handguns constitutional

in light of the holding in D.C. v. Heller, 554 U.S. 570 (2008), that handgun bans

are categorially unconstitutional?

2. Is the “in common use” test announced in D.C. v. Heller, 554 U.S. 570

(2008), hopelessly circular and therefore unworkable?

3. Can the government ban the sale, purchase, and possession of certain

semi-automatic firearms and firearm magazines tens of millions of which are

possessed by law-abiding Americans for lawful purposes when there is no anal-

ogous historical ban as required by D.C. v. Heller, 554 U.S. 570 (2008), and

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022)?

i
 PARTIES AND RULE 29.6 STATEMENT

The Applicants are National Association for Gun Rights (“NAGR”),

Robert C. Bevis, and Law Weapons, Inc. d/b/a Law Weapons and Supply

(“LWI”). Applicants are the Plaintiffs in the district court and the appellants

in the Court of Appeals for the Seventh Circuit.

NAGR is a nonprofit corporation. It neither issues stock nor has a par-

ent corporation. LWI does not have a parent corporation and no public com-

pany owns any of its stock.

The Respondents are City of Naperville, Illinois (the “City”), Jason

Arres, and the State of Illinois (the “State”). The City and Mr. Arres (the

City’s Police Chief) are the Defendants in the district court and the appellees

in the Seventh Circuit. The State is an intervening party in both the district

court and the Seventh Circuit.

ii
 TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ............................................................................i

PARTIES AND RULE 29.6 STATEMENT .....................................................ii

TABLE OF AUTHORITIES .............................................................................v

TO THE HONORABLE AMY CONEY BARRETT, ASSOCIATE

JUSTICE OF THE SUPREME COURT AND CIRCUIT JUSTICE
FOR THE SEVENTH CIRCUIT ......................................................................1

DECISIONS BELOW .......................................................................................4

JURISDICTION AND STANDARD OF REVIEW ..........................................4

FACTUAL AND PROCEDURAL HISTORY ...................................................5

REASONS FOR GRANTING THE APPLICATION .......................................6

I. Introduction..................................................................................................6

II. Plaintiffs Will Prevail on the Merits..........................................................7

A. The Heller/Bruen Framework for Second Amendment

Analysis .............................................................................................7

B. Bruen Step 1: The Plain Text Covers Plaintiffs’ Conduct ..............8

C. Bruen Step 2: Because the Banned Arms are in Common

Use, the State Cannot Meet its Burden ..........................................9

D. Summary: The Act is Unconstitutional ..........................................12

III. The Panel Majority Opinion Manifestly Conflicts with Heller

and Bruen in Several Respects .................................................................12

A. The State’s Handgun Ban is Clearly Unconstitutional ........................12

B. The Panel’s Holding that a Firearm is not an Arm Conflicts

with Heller .............................................................................................13

C. The Common Use Test is Not Circular .................................................14

iii
 D. Bruen was not Hypocritical ...................................................................15

E. The Seventh Circuit’s History and Tradition Analysis was

a Failure .................................................................................................16

F. Arms May Not be Banned Because a Court Thinks they

are “Especially Dangerous” ...................................................................18

G. The Seventh Circuit Engaged in Stealth Interest Balancing ..............20

H. The Panel Misconstrued Heller’s “Useful for Military Service”

Passage ..................................................................................................21

I. The Panel’s Holding Conflicts with Staples ...........................................23

J. The Seventh Circuit Failed to Apply Bruen to the Magazine Ban .......24

K. The Panel Majority’s Continued Reliance on Friedman Cannot

be Reconciled with Bruen or Caetano ...................................................25

VI. Plaintiffs Are Suffering Irreparable Harm ..............................................26

VII An Injunction Would Not Harm the Public Interest ...............................28

VIII. Cases Upholding Arms Bans .................................................................28

CONCLUSION .................................................................................................29

iv
 TABLE OF AUTHORITIES

Page

Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v.

Att’y Gen. New Jersey, 910 F.3d 106 (3d Cir. 2018),
abrogated on other grounds by Bruen ............................................................9

Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023).......................................27

Barnett v. Raoul, 3:23-cv-209 (S.D. Ill.) ...........................................................9, 29

Bevis v. City of Naperville, Illinois, 2023 WL 7273709

(7th Cir. Nov. 3, 2023) ..................................................................................4

Caetano v. Massachusetts, 577 U.S. 411 (2016) ............................... 20, 22, 25, 26

Cavel Int’l, Inc. v. Madigan, 500 F.3d 544 (7th Cir. 2007) .............................27

D.C. v. Heller, 554 U.S. 570 (2008) ............................................................... passim

Duncan v. Bonta, 83 F.4th 803 (9th Cir. 2023) ...................................... 10, 28, 29

Elrod v. Burns, 427 U.S. 347(1976) ............................................................... 26, 27

Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ....................................27

Friedman v. City of Highland Park, Ill., 577 U.S. 1039 (2015) ......................5, 10

Friedman v. City of Highland Park, Illinois, 784 F.3d 406

(7th Cir. 2015).......................................................................................... 20, 25, 26

Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011) ............................................. 13, 24

Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) .................................................23

McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010)...................................7

Miller v. Bonta, 2023 WL 6929336 (S.D. Cal. Oct. 19, 2023)..........................9, 29

New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111 (2022) ................................................................................. passim

N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013) .................28

v
NRA v. Chicago, 567 F.3d 856 (7th Cir. 2009) ................................................7

Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) .................5

Staples v. United States, 511 U.S. 600 (1994) ............................................... 23

State v. Langford, 10 N.C. 381 (1824) .............................................................19

United States v. Miller, 307 U.S. 174 (1939)] ..................................................18

STATUTES

28 U.S.C. § 1292 ...............................................................................................4

28 U.S.C. § 1651 ...............................................................................................4

720 ILCS 5/24-1.9 .............................................................................................5

720 ILCS 5/24-1.9(c)-(d) ...................................................................................5

720 ILCS 5/24-1.10 ...........................................................................................5

720 ILCS 5/24-1.10(c)-(d) .................................................................................5

720 ILCS 5/24-1(b) and 1.10(g) ........................................................................5

Chapter 19 of Title 3 of the Naperville Municipal Code .................................5

Protect Illinois Communities Act, Pub. Act 102-1116 (2023) ...................... passim

Supreme Court Rule 22 ....................................................................................1

Supreme Court Rule 23 ....................................................................................1

U.S. Const. amend. II .................................................................................... passim

U.S. Const. amend. V .......................................................................................22

OTHER AUTHORITIES

1 Timothy Cunningham, A New and Complete Law Dictionary (1783) .........19

vi
David B. Kopel, The History of Firearm Magazines and Magazine
Prohibitions, 78 ALB. L. REV. 849(2015)....................................................1

Mark W. Smith, What Part of “In Common Use” Don’t You

Understand?: How Courts Have Defied Heller in Arms-Ban
Cases-Again, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 41 (2023).............2, 11

vii
 TO THE HONORABLE AMY CONEY BARRETT,
ASSOCIATE JUSTICE OF THE SUPREME COURT AND
CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT

Pursuant to this Court’s Rules 22 and 23, Plaintiffs respectfully request

that the Circuit Justice enter an injunction pending the disposition of Plain-

tiffs’ petition for rehearing en banc in the Seventh Circuit and the filing and

disposition of any follow-on petition for writ of certiorari.

This action concerns the Protect Illinois Communities Act, Pub. Act 102-

1116 (2023) (“the Act”). The Act is unconstitutional, because it bans certain

handguns and because the so-called “assault weapons” and “large capacity

magazines”1 that it bans are possessed by millions of law-abiding Americans

who overwhelmingly use them for lawful purposes, including self-defense in

the home. Indeed, the Act bans the most popular rifle in America.2 The Act

thus bans weapons in common use for lawful purposes and is manifestly un-

constitutional under D.C. v. Heller, 554 U.S. 570 (2008) and New York State

Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

In Bruen, the Court observed that the last decade of Second Amendment

litigation had taught it that the lower federal courts too often deferred to the

determinations of legislatures under the banner of intermediate scrutiny. Id.,

142 S. Ct. at 2131. In response, Bruen rejected means-end scrutiny in the

1 Both “assault weapon” and “large capacity magazine” are terms of political derision, not ac-
curate firearm terminology.
2 App. 196, n. 9 (Brennan, J., dissenting) (AR-15 banned by the Act is the most popular rifle

in Ameria. (quoting David B. Kopel, The History of Firearm Magazines and Magazine Prohi-
bitions, 78 ALB. L. REV. 849, 859 (2015)).

1
Second Amendment context, reiterated Heller’s text, history and tradition

framework, and called on lower courts to stop treating the right to keep and

bear arms as a “second-class right.” Id., 142 S. Ct. at 2131, 2156. Unfortu-

nately, when it comes to bans on firearms in common use, nothing changed

after Bruen. See Mark W. Smith, What Part of “In Common Use” Don’t You

Understand?: How Courts Have Defied Heller in Arms-Ban Cases-Again, 2023

Harv. J.L. & Pub. Pol’y Per Curiam 41 (2023). As Professor Smith points out,

after Bruen instead of following Heller, lower courts have circumvented it. As

a result, the lower courts have without exception upheld bans on firearms and

LCMs in common use.3 This is one such case.

Plaintiffs moved for a preliminary injunction, but the district court de-

nied their motion, holding that these weapons may be banned because they are

“particularly dangerous.” Appendix (“App.) 30. Plaintiffs appealed and on No-

vember 3, 2023, a divided panel of the Seventh Circuit affirmed the district

court’s denial of Plaintiffs’ motion for preliminary injunction. App. 175. The

court held that Plaintiffs failed to demonstrate the Act is likely unconstitu-

tional. App., 159. But as noted, the banned firearms and magazines are in com-

mon use for lawful purposes, and the Act is clearly unconstitutional under Hel-

ler and Bruen. The Act’s handgun ban4 is particularly problematic, because

Heller held that handgun bans are categorically unconstitutional. 554 U.S. at

3 See Section VIII, infra, for a list of cases upholding bans.

4 Most of the “assault weapons” banned by Act are long guns. While the principles announced
in Heller apply to long guns, the panel’s disregard of Heller’s specific holding regarding hand-
guns is particularly problematic.

2
628. The panel majority acknowledged that citizens have a constitutional right

to keep and bear handguns. App. 131. It also acknowledged that the Act bans

certain handguns. App. 134. But other than acknowledging the existence of the

State’s handgun ban, the court ignored it.

In addition, the panel majority failed to follow this Court’s precedents

in several other instances, including:

1. The court held the banned firearms are not even “arms” covered by

the plain text of the Second Amendment. App. 154-55.

2. The court wrote that the common use test is the product of faulty

circular reasoning and cannot be usefully employed in this or any other case.

App. 148.

3. The court suggested that Bruen’s history and tradition test is hypo-

critical because it employs the interest balancing the Court purported to es-

chew. App. 167-68.

4. The court failed to apply Bruen’s history and tradition test in a mean-

ingful way. App. 167-69.

5. The court held that an arm may be banned if a judge thinks it is

“particularly dangerous.” App. 167.

6. The court’s decision rests on stealth interest balancing. App. 170.

7. The court held an arm may be banned merely because it is similar to

a weapon formerly used by the military. App. 159.

3
 In summary, the Seventh Circuit’s decision was manifestly erroneous.

In the meantime, Plaintiffs and hundreds of thousands of law-abiding Illinois

citizens are suffering irreparable injury because their fundamental right to

keep and bear arms is being infringed. Accordingly, Plaintiffs respectfully urge

you to take up this case and grant the requested injunctive relief.5

DECISIONS BELOW

The Seventh Circuit’s opinion is available at Bevis v. City of Naperville,

Illinois, 2023 WL 7273709 (7th Cir. Nov. 3, 2023), and is reproduced at

App. 129-223. On November 21, 2023, Plaintiffs moved for an injunction

pending review in the Seventh Circuit. App.310-334. The Seventh Circuit de-

nied their motion. App.335.

JURISDICTION AND STANDARD OF REVIEW

The Seventh Circuit has jurisdiction over Plaintiffs’ appeal pursuant to

28 U.S.C. § 1292. This Court has jurisdiction pursuant to 28 U.S.C. § 1651.

On November 21, 2023, Plaintiffs moved for an injunction pending review in

the Seventh Circuit. App.310-324. The Seventh Circuit denied their motion.

App.335.

5 On April 26, 2023, Plaintiffs filed a previous Emergency Application for Injunction Pending
Appellate Review in Case No. 22A948. On May 12, the State notified the Court that the Sev-
enth Circuit had ordered an expedited briefing schedule and set oral argument for June 29.
After receiving this notice, the Court denied Plaintiffs’ application on May 17. Plaintiffs be-
lieve that the Court may have been influenced to deny their prior application when the Sev-
enth Circuit expedited its review of the district court’s denial of injunctive relief. Unfortu-
nately, while the Seventh Circuit did review the matter expeditiously, it failed to remedy the
constitutional violation.

4
 Applicants pursuant to Rule 23 must show that (1) their claims are

likely to prevail; (2) denying them relief would lead to irreparable injury; and

(3) granting relief would not harm the public interest. See Roman Cath. Dio-

cese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020).

FACTUAL AND PROCEDURAL HISTORY

The Act became effective on January 10, 2023.6 This action concerns the

arms bans in the Act that are codified at 720 ILCS 5/24-1.9 and 5/24-1.10.

Those sections generally prohibit the purchase and sale of “assault weapons”

and “large capacity ammunition feeding devices” (defined as magazines accept-

ing more than 10 rounds of ammunition for a long gun or more than 15 rounds

of ammunition for handguns). Effective January 1, 2024, the Act will also pro-

hibit the mere possession of “assault weapons” and magazines except for those

possessed prior to the Act. Id. §§ 1.9(c)-(d) & 1.10(c)-(d). The Act provides for

substantial criminal penalties for violation of its provisions. 720 ILCS 5/24-1(b)

and 1.10(g).

Plaintiff Robert C. Bevis is a law-abiding citizen and business owner.

App. 125. Plaintiff LWI is engaged in the commercial sale of firearms. Id.

Plaintiff NAGR is a Second Amendment advocacy organization. App. 75. Plain-

tiffs and/or their members and/or customers desire to exercise their Second

Amendment right to acquire, possess, carry, sell, purchase, and transfer the

6On August 17, 2022, the City Council of Naperville, Illinois enacted Chapter 19 of Title 3 of
the Naperville Municipal Code (the “Ordinance”). The Ordinance bans the sale of so-called
“assault rifles.” The prohibitions of the Ordinance largely overlap with those of the Act.
Therefore, like the court below, Plaintiffs will focus on the Act.

5
banned arms for lawful purposes including, but not limited to, the defense of

their homes. App. 76.

Plaintiffs brought this action challenging the Act under the Second

Amendment. App. 65-72. On January 24, 2023, Plaintiffs filed a motion re-

questing the district court to preliminarily enjoin the Act.7 App. 78-103. The

district court denied Plaintiffs’ motion in an order dated February 17, 2023.

App. 1-33. Plaintiffs appealed, and the Seventh Circuit panel affirmed the dis-

trict court’s denial of Plaintiffs’ motion for preliminary injunction in an opinion

dated November 3, 2023. App. 129-233. Plaintiffs filed a petition for rehearing

en banc on November 11, 2023. App. 224. That petition is pending.

REASONS FOR GRANTING THE APPLICATION

I. Introduction

As summarized above and discussed in detail below, the Seventh Cir-

cuit’s decision is fundamentally at odds with a number of this Court’s prece-

dents, particularly Heller and Bruen. In the meantime, Plaintiffs and hun-

dreds of thousands of law-abiding Illinois citizens are suffering irreparable

injury because their fundamental right to keep and bear arms is being in-

fringed. Accordingly, for the reasons set forth below, Plaintiffs respectfully

urge the Court to take up this case and grant the requested injunctive relief.

7Plaintiffs also filed a motion for preliminary injunction with respect to the Ordinance.
App. 35-35.

6
II. Plaintiffs Will Prevail on the Merits

A. The Heller/Bruen Framework for Second Amendment

Analysis

In Heller, the Supreme Court held (a) the Second Amendment protects

an individual right to keep and bear arms that is not tied to militia member-

ship; and (b) an absolute prohibition of a weapon in common use for lawful

purposes is a per se violation of that right. 554 U.S. at 592, 628. In McDonald

v. City of Chicago, Ill., 561 U.S. 742 (2010), the Court held that the right to

keep and bear arms is among the fundamental rights necessary to our system

of ordered liberty, and therefore the Second Amendment is applicable to the

states through the Fourteenth Amendment. Id., 561 U.S. at 778 (reversing

NRA v. Chicago, 567 F.3d 856 (7th Cir. 2009) (Easterbrook, J.)).

In Bruen, the Court built on the foundation of Heller’s text, history, and

tradition analysis for Second Amendment challenges. The Court articulated

the following general framework for resolving such challenges: “We reiterate

that the standard for applying the Second Amendment is as follows: [1] When

the Second Amendment’s plain text covers an individual’s conduct, the Consti-

tution presumptively protects that conduct. [2] The government must then jus-

tify its regulation by demonstrating that it is consistent with the Nation’s his-

torical tradition of firearm regulation.” Id., 142 S. Ct. at 2129-30. These steps

have come to be known as the “plain text” step and the “history and tradition”

step.

7
 B. Bruen Step 1: The Plain Text Covers Plaintiffs’ Conduct

The “textual analysis focuse[s] on the normal and ordinary meaning of

the Second Amendment’s language.” Bruen, 142 S. Ct. at 2127 (citing Heller,

554 U.S. at 576–577, 578) (internal quotation marks omitted). Plaintiffs desire

to acquire and possess the banned “assault weapons” and magazines. Thus, the

first issue is whether the plain text of the Second Amendment covers this con-

duct. The plain text provides: “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. In Heller, the Court held that a handgun

is an “arm” within the meaning of the Second Amendment. 554 U.S. at 581,

628–29. In reaching that conclusion, the Court noted that, as a general matter,

the “18th-century meaning” of the term “arms” is “no different from the mean-

ing today.” Id. at 581. Then, as now, the term generally referred to “weapons

of offence, or armour of defence.” Id. (cleaned up). The Court noted that “all

firearms constitute ‘arms’” within the then-understood meaning of that term.

Id. (cleaned up; internal citation and quotation marks omitted). And, just as

the scope of protection afforded by other constitutional rights extends to mod-

ern variants, so too the Second Amendment “extends, prima facie, to all instru-

ments that constitute bearable arms, even those that were not in existence at

the time of the founding.” Id. at 582. Thus, the banned firearms are obviously

“arms” covered by the plain text and therefore prima facia protected. (Whether

they are actually protected is a matter resolved at the second step.)

8
 In addition to the obvious case of firearms, the general definition of

“arms” in the Second Amendment, “covers modern instruments that facilitate

armed self-defense.” Bruen, 142 S. Ct. at 2132. The magazines banned by the

State fit neatly within this definition because they are essential to the opera-

tion of modern semi-automatic firearms. See Ass’n of New Jersey Rifle & Pistol

Clubs, Inc. v. Att’y Gen. New Jersey, 910 F.3d 106, 116 (3d Cir. 2018), abrogated

on other grounds by Bruen (Because magazines feed ammunition into certain

guns, and ammunition is necessary for such a gun to function as intended,

magazines are “arms” within the meaning of the Second Amendment.).

In summary, the Plaintiffs’ conduct in seeking to acquire and possess

the banned “assault weapons” and magazines is covered by the plain text of

the Second Amendment. Their conduct is, therefore, presumptively protected

by the Constitution.

C. Bruen Step 2: Because the Banned Arms are in Common

Use, the State Cannot Meet its Burden

The State retained Dr. Louis Klarevas as an expert. Dr. Klarevas esti-

mated that there are approximately 24.4 million “assault weapons” in circula-

tion in American society.8 See also, Miller v. Bonta, 2023 WL 6929336, at *33

(S.D. Cal. Oct. 19, 2023) (stayed) (Citing Dr. Klarevas, the court noted there

8 App. 256. The State submitted this declaration in Barnett v. Raoul, 3:23-cv-209 (S.D. Ill.),
which was consolidated with this case in the Seventh Circuit. Dr. Klarevas uses the term
“modern sporting rifle” (NSSF’s term for AR-15 and AK-47 platform rifles) as a proxy for “as-
sault weapons.” For reasons that are unclear, he suggests that those rifles owned by law en-
forcement officers do not count as in circulation. Even granting this dubious premise, it is un-
disputed that tens of millions of the weapons are in circulation.

9
are 24.4 million “assault weapons” in circulation). Dr. Klarevas also stated that

in 2022 in the United States, 63 people were killed in seven mass shootings.

App. 309. Thus, according to Defendants’ own expert, at least 23,999,937 of the

24.4 million “assault weapons” in circulation last year were not used in mass

shootings. Defendants insist that the 99.9999% of such weapons that were not

used in mass shootings last year may be banned because of the .0001% that

were. Defendants are wrong.

The panel used the AR-15 semi-automatic rifle as the paradigmatic ex-

ample of the kind of weapon banned by the Act. App.134. The State’s own ex-

pert, Dr. Klarevas, acknowledged that Americans own tens of millions of AR-

15 and similar rifles. The overwhelming majority of those weapons are used

for lawful purposes. Under the Supreme Court’s precedents, particularly Hel-

ler, “that is all that is needed for citizens to have a right under the Second

Amendment to keep such weapons.” Friedman v. City of Highland Park, Ill.,

577 U.S. 1039 (2015) (Thomas, J., joined by Scalia, J., dissenting from denial

of certiorari) (emphasis added). The same is true for the so-called “large capac-

ity magazines” banned by the Act. Duncan v. Bonta, 83 F.4th 803, 816 (9th Cir.

2023) (Bumatay, J., dissenting from order granting stay) (quoting Justice

Thomas’s dissent in Friedman)9.

9Plaintiffs point to Judge Bumatay’s dissenting opinion because his reasoning is consistent
with Heller and Bruen, as opposed to the majority opinion which, inexplicably, engaged in
practically no analysis at all.

10
 Indeed, this is Heller’s central holding. The Court performed an exhaus-

tive search of the historical record and concluded that no Founding-era regu-

lation “remotely burden[ed] the right of self-defense as much as an absolute

ban” on a weapon in common use. Id., 554 U.S. at 632. Thus, laws that ban

weapons in common use for lawful purposes are categorically unconstitutional.

Id., at 628. There is no need to revisit this issue in each arms ban case. As

Solicitor General Elizabeth Prelogar noted in her oral argument in United

States v. Rahimi earlier this month, once a Second Amendment principle is

“locked in,” it is not “necessary to effectively repeat that same historical ana-

logical analysis for purposes of determining whether a modern-day legisla-

ture’s disarmament provision fits within the category.” Trans., 55:18 – 56:1

(available at https://bit.ly/3QwPm3c).

This necessarily means that the State cannot carry its burden under

Bruen’s step two (the history and tradition step). After an exhaustive search,

Heller concluded that it is impossible to demonstrate that a ban of a weapon in

common use is consistent with the Nation’s history and tradition of firearms

regulation. It follows that the State’s ban on weapons in common use for lawful

purposes, like the ban at issue in Heller, is categorially unconstitutional. See

also Smith, supra, at 2 (“Heller’s ‘in common use’ constitutional test controls,

and there is nothing for the lower courts to do except apply that test to the

facts at issue.”).

11
 D. Summary: The Act is Unconstitutional

In summary, the Second Amendment’s plain text covers Plaintiff’s pro-

posed conduct of acquiring, keeping, and bearing bearable arms. The Consti-

tution thus presumptively protects that conduct. The State has not (indeed

cannot) rebut that presumption, because under Heller, its ban of arms in com-

mon use is not consistent with the Nation’s history and tradition of firearms

regulation.

III. The Panel Majority Opinion Manifestly Conflicts with Heller

and Bruen in Several Respects

A. The State’s Handgun Ban is Clearly Unconstitutional

The D.C. ordinance challenged in Heller banned the possession of hand-

guns in the city even for self-defense in the home. The Court invalidated the

ordinance, writing “banning from the home the most preferred firearm in the

nation to keep and use for protection of one’s home and family [fails] constitu-

tional muster.” 554 U.S. at 628-29 (cleaned up). Applying this rule to the pre-

sent case, there cannot be the slightest doubt that laws absolutely banning

handguns are unconstitutional. Indeed, the panel majority acknowledged that

“everyone can agree” that handgun bans are unconstitutional. App. 131. The

panel majority also acknowledged that the “Illinois Act bans certain ... pistols.”

App. 134. Having acknowledged that the Act bans certain handguns, one

would expect the majority to address the issue further and demonstrate how

the State’s handgun ban is somehow distinguishable from the handgun ban

invalidated in Heller. But it did not. Indeed, other than acknowledging that

12
the State’s handgun ban exists, the majority never mentioned it again. Far less

did it demonstrate how the handgun ban can be reconciled with Heller. Thus,

the opinion manifestly conflicts with Heller.

B. The Panel’s Holding that a Firearm is not an Arm Conflicts

with Heller

As noted, Heller stated that the textual analysis focuses on the normal

and ordinary meaning of the words in the constitutional text. Heller, 554 U.S.

at 576. The plain and ordinary meaning of “arm” would seem to include all

firearms. This is what Heller said. Id., at 581 (citing a source that said that all

firearms constituted arms.). Thus, it follows that the firearms banned by the

State are arms within the meaning of the text.

Not so fast, says the Seventh Circuit. The word “arms” in the text in-

cludes some firearms but not others. And how does one discern the difference?

The ordinary meaning of the text is no help according to the panel majority

because the word “arms” in the Second Amendment has an esoteric meaning,

and in the context of firearms it means “firearms that are not too ‘militaristic.’”

App. 167. Of course, the panel seems to have drawn this line between firearms

covered by the text and those that are not in an effort to cabin Heller as much

as possible to its specific facts. But as then-Judge Kavanaugh once wrote, a

line based on a desire to restrict Heller is “not a sensible or principled consti-

tutional line for a lower court to draw.” Heller v. D.C. (“Heller II”), 670 F.3d

1244, 1286 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). Justice Kavanaugh

13
was correct, and the panel majority’s approach to the text cannot be reconciled

with Heller’s “plain and ordinary meaning” mandate.

C. The Common Use Test is Not Circular

As discussed above, Heller held that a firearm in common use for lawful

purposes may not be absolutely banned. 554 U.S. at 628-29. This has become

known as the “common use” test. Justice Breyer thought the Court was wrong

to adopt the common use test. Heller, 554 U.S. 720–21 (Bryer, J., dissenting).

He was particularly concerned that under the test, machine guns might have

been protected if they had not been restricted early on. Id. He argued the Court

had employed faulty logic, and “[t]here is no basis for believing that the Fram-

ers intended such circular reasoning.” Id. (emphasis added).

The Seventh Circuit is also not a fan of the common use test, and it ex-

pressed its disapproval using the same machine gun example used by Justice

Breyer in his Heller dissent. App. 148. Like Justice Breyer, the Seventh Circuit

believes the test is the product of faulty circular reasoning. Id. Accordingly, the

court rejected the common use test and implicitly, if not expressly, adopted

Justice Bryer’s dissent in its stead. Id.

In his dissent in the court below, Judge Brennan took his colleagues to

task on this point. First, he explained how the common use test, properly un-

derstood, is not circular at all. App. 189. And then he observed that no matter

how he and his colleagues feel about this Court’s reasoning, “[w]e are not free

14
to ignore the Court’s instruction as to the role of ‘in common use’ in the Second

Amendment analysis.” Id. 189-90.

Judge Brennan was surely correct. The panel majority ignored the com-

mon use test and it is is obvious why they did so. As Justice Thomas observed,

AR-15s are in common use for lawful purposes and that is all that is needed

for citizens to have a Second Amendment right to keep them. Friedman, supra.

Therefore, to avoid reaching the result that citizens have a right to keep these

weapons, it was necessary to jettison the test. This was plain error.

D. Bruen was not Hypocritical

Bruen’s step two history and tradition test involves reasoning by anal-

ogy10 to determine whether the challenged regulation is “relevantly similar” to

a Founding-era law. 142 S. Ct. at 2132. In determining whether a historical

regulation is relevantly similar to a modern regulation, “at least two metrics:

how and why the regulations burden a law-abiding citizen’s right to armed self-

defense” are particularly important. 142 S. Ct. at 2133.

The Seventh Circuit panel majority thinks the Court’s adoption of these

metrics is hypocritical. It wrote:

With respect to the ‘how’ question, judges are instructed to consider

‘whether modern and historical regulations impose a comparable bur-
den’ on that right. Id. For all its disclaiming of balancing approaches,
Bruen appears to call for just that . . . 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.

10 As explained above, in the context of a ban on arms in common use, the history and tradi-
tion analysis was performed in Heller. The common use test is shorthand for the per se rule
that such bans are not consistent with the Nation’s history and tradition of firearm regula-
tion.

15
App. 167-68 (emphasis added).

This is wrong. Balancing the merits of a firearms policy against a citi-

zen’s interest in exercising their right (i.e. interest balancing) is not at all the

same thing as – or even comparable to – evaluating whether a historical regu-

lation is relevantly similar to a modern regulation. The Seventh Circuit’s

charge that prohibiting the former conflicts with requiring the latter is merit-

less. Indeed, just the opposite is true. Far from allowing interest balancing in

the history and tradition analysis, Bruen expressly prohibited it. 142 S. Ct. at

2133, n. 7 (“[C]ourts may [not] engage in independent means-end scrutiny un-

der the guise of an analogical inquiry”).

E. The Seventh Circuit’s History and Tradition Analysis was

a Failure

The panel majority in the court below did not engage in a robust exam-

ination of the historical record to determine if there were any Founding-era

regulations analogous to the State’s arms ban. Instead, the court held that

the burden of the State’s arms ban (i.e., the “how” of the regulation) is compa-

rable to historical regulations merely because it has a grandfather clause and

law enforcement and military personnel are exempt. App. 137-68. The prob-

lem with this is that the lower court did not bother to identify any state laws

from the Founding-era (or even from the 19th century) that were absolute

16
bans of commonly held weapons but had grandfather provisions and ex-

empted law enforcement and military personnel.11

Indeed, the lower court did not seem to understand the point of the

“how” analysis. We know this because the dissent performed an analysis of the

“how” question, about which the panel majority scoffed: “[The dissent’s analy-

sis] “relies only on the fact that the particulars of those regulations varied from

place to place, and that some were more absolute than others.” App. 167. But

surely the point of the “how” question is to examine particulars of the historical

regulations to discern whether they imposed a comparable burden. The lower

court’s “how” analysis fails on its face.

The lower court’s analysis of the “why” question fares no better. The

court literally held that the “why” of the State’s arms ban can be conclusively

determined from the title of the Act, writing “we find the best indication of its

purpose in its name: ‘Protect Illinois Communities Act.’” Id. But this Court held

that in asking “why,” the issue to be determined is whether the historical reg-

ulation was “comparably justified” to the modern one. 142 S. Ct. at 2133. The

Court cautioned lower courts that in making this determination they must re-

view the justification at an appropriate level of generality, because in one sense

“everything is similar in infinite ways to everything else.” 142 S. Ct. at 2132

(internal quotation marks and citation omitted). The Seventh Circuit failed to

heed this warning. For the lower court, any justification, no matter how

11The court pointed to some municipal laws, but Bruen held that such laws covered too few
people and are therefore not useful in the analysis. 142 S. Ct. at 2154.

17
general, is good enough. Indeed, the court went so far as to say that a recital

that the purpose of the regulation is to exercise the police power demonstrates

a sufficiently comparable justification. App. 169 (purpose of Ordinance was to

protect health, safety and welfare). Under the Seventh Circuit’s analysis, the

“why” question becomes meaningless, because at the level of generality em-

ployed by the panel majority, all historical regulations are comparably justified

to all modern regulations. After all, by definition, the exercise of the police

power is the purpose of all firearms regulations. Bruen did not mean to estab-

lish a meaningless metric, so the lower court surely erred.

F. Arms May Not be Banned Because a Court Thinks they

are “Especially Dangerous”

The district court misapprehended this Court’s “dangerous and unu-

sual” test and erroneously held that an arm may be banned if, in a reviewing

court’s judgment, it is “particularly dangerous.” App. 30. Far from correcting

the district court’s error, the Seventh Circuit adopted it. App. 167. The panel

majority held that the State’s arms ban satisfies Bruen step two (history and

tradition), because there is a long-standing tradition of regulating “especially

dangerous” weapons. Id. Thus, the circuit court also misapprehended Heller’s

“dangerous and unusual” test.

Heller stated: “We also recognize another important limitation on the

right to keep and carry arms. [United States v. Miller, 307 U.S. 174 (1939)] said

… that the sorts of weapons protected were those ‘in common use at the time.’

[] We think that limitation is fairly supported by the historical tradition of

18
prohibiting the carrying of ‘dangerous and unusual weapons.’” Heller, 554 U.S.

at 627 (emphasis added). The Court then cited several authorities’ discussion

of the common law offense of “affray,” i.e., the carrying of weapons in public in

such a way as to incite public terror. See e.g., State v. Langford, 10 N.C. 381,

383-84 (1824) (man commits “affray” when he “arms himself with dangerous

and unusual weapons, in such a manner as will naturally cause a terror to the

people.”). The offense of affray did not prohibit any class of arms as such (in-

cluding dangerous and unusual arms). Instead, it prohibited the misuse of dan-

gerous and unusual arms to terrorize the public. It follows that a person would

be “in no danger of offending … by wearing common weapons” in such a way

as not to give rise to a suspicion of “an intention to commit any act of violence.”

Id. (emphasis added). See also 1 Timothy Cunningham, A New and Complete

Law Dictionary (1783) (same). Thus, Heller’s point in citing these authorities

was to contrast weapons in common use with the unusual weapons used to

terrorize the public by those who committed affray.

In Bruen, the court reiterated this same concept:

[In Heller], we found it ‘fairly supported by the historical tradition of

prohibiting the carrying of ‘dangerous and unusual weapons’ ‘that the
Second Amendment protects the possession and use of weapons that
are ‘in common use at the time.’ Id., at 627, 128 S.Ct. 2783 (first citing
4 W. Blackstone, Commentaries on the Laws of England 148–149
(1769).

Id., 142 S. Ct. at 2128.

Nothing in Heller nor Bruen even hints that the Second Amendment

does not protect a weapon merely because in a reviewing court’s view it is

19
“especially dangerous.” Judge Manion’s dissent in Friedman v. City of High-

land Park, Illinois, 784 F.3d 406 (7th Cir. 2015), is instructive on this point.

He noted that whether a weapon is dangerous is of no significance for applica-

tion of the common use test (Id., at 415, n. 2) because “[a]ll weapons are pre-

sumably dangerous.” Id. Thus, the issue for purposes of the test is whether a

weapon is also unusual, i.e. “not commonly used for lawful purposes.” Id. In

Caetano v. Massachusetts, 577 U.S. 411 (2016), Justice Alito made a similar

observation when he wrote that the “dangerous and unusual” test is “a con-

junctive test: A weapon may not be banned unless it is both dangerous and

unusual.” Id, 577 U.S. at 418 (Alito, J. concurring) (emphasis in the original).

In summary, an arm cannot be subjected to a categorical ban unless it

is both dangerous and unusual. Heller, 554 U.S. at 627; Bruen, 142 S. Ct. at

2128. An arm that is commonly possessed by law-abiding citizens for lawful

purposes is, by definition, not unusual. It follows, that “the relative dangerous-

ness of a weapon is irrelevant when the weapon belongs to a class of arms

commonly used for lawful purposes.” Caetano, 577 U.S. at 418 (Alito, J., con-

curring). Therefore, the Seventh Circuit’s holding that the State’s ban of com-

monly possessed firearms and magazines is constitutional merely because, in

its view, the arms are “especially dangerous” is clearly erroneous.

G. The Seventh Circuit Engaged in Stealth Interest Balanc-

ing

The Seventh Circuit’s decision rests on a foundation of stealth interest

balancing. The lower court held that the government may restrict citizens’

20
access to certain weapons that are “especially dangerous” or “militaristic” in

character. App. 167, 170. What is the defining feature of an “especially danger-

ous” or “militaristic” weapon? The court answers that it is a “weapon such as

the AR-15, which is capable of inflicting the grisly damage described in some

of the briefs.” App. 166-67. The problem with this is that all firearms are capa-

ble of inflicting grisly damage. One might even say that is a firearm’s purpose.

What is the dividing line between an ordinarily dangerous firearm and

one that is “especially dangerous”? The court below held that in making this

determination a court must examine the record to determine whether there is

an “important difference” between the banned weapon and other (unidentified)

weapons in terms of lethality. App. 170, n. 12. In other words, the lower court

made an empirical judgment about the relative dangerousness of the banned

weapons and based on that judgment determined that the State’s interest in

banning these “especially dangerous” weapons outweighs citizens’ rights to use

them for self-defense in their home. This is precisely the sort of interest bal-

ancing precluded by Bruen. 142 S. Ct. at 2129.

H. The Panel Misconstrued Heller’s “Useful for Military Ser-

vice” Passage

The panel majority held that to prevail on the merits Plaintiffs have the

burden of showing that the banned arms are not “predominantly useful in mil-

itary service.” App. 156. As noted, the panel used the AR-15 as the paradig-

matic example of the kind of weapon the statute covers. App. 134. The panel

then held that AR-15s are similar to the M-16s that were once used in the

21
military and are therefore not protected by the Second Amendment. App. 154,

159, 162 (citing Heller, 554 U.S. at 627 (weapons “most useful in military ser-

vice” may be banned)).

There are two problems with this, one factual and one legal. First, as

Judge Brennan accurately noted, the semi-automatic AR-15 is a civilian, not

military, weapon, and no army in the world uses a service rifle that is only

semiautomatic. App. 210. More importantly, even assuming for the sake of ar-

gument that the AR-15 might be used by the military, the panel majority still

misconstrued Heller, as the very passage they cited demonstrates. In that pas-

sage, the Court held that weapons in common use brought to militia service by

members of the militia are protected by the Second Amendment. Id. What do

militia members do with those weapons when they bring them to militia ser-

vice? They fight wars.12 It would be extremely anomalous, therefore, if Heller

were interpreted to mean simultaneously that (1) weapons brought by militia

members for military service are protected by the Second Amendment, and (2)

all weapons used for military service are not protected by the Second Amend-

ment. This is obviously not the law. Rather, “Heller [merely] recognized that

militia members traditionally reported for duty carrying ‘the sorts of lawful

weapons that they possessed at home,’ and that the Second Amendment there-

fore protects such weapons as a class, regardless of any particular weapon’s

suitability for military use.” Caetano v. Massachusetts, 577 U.S. 411, 419

12 See U.S. Const. amend. V (referring to “the Militia, when in actual service in time of War”).

22
(2016) (Alito, J., concurring). See also Kolbe v. Hogan, 849 F.3d 114, 156 (4th

Cir. 2017) (Traxler, J., dissenting) (calling an arm a “weapon of war” is irrele-

vant, because under Heller “weapons that are most useful for military service”

does not include “weapons typically possessed by law-abiding citizens.”).

I. The Panel’s Holding Conflicts with Staples

As discussed above, the panel held that AR-15s are similar to M-16s and

may therefore be banned. App. 162-63. As Judge Brennan correctly wrote, this

holding directly conflicts with Staples v. United States, 511 U.S. 600 (1994).

App. 195. Staples held that the difference between semi-automatic weapons

like the AR-15 and the automatic M-16 is legally significant. Indeed, the con-

trast between semiautomatic weapons and automatic weapons like the M-16

was key to the Court’s analysis. Id., at 603. The Court contrasted ordinary fire-

arms such as the AR-15 at issue in that case with “machineguns, sawed-off

shotguns, and artillery pieces,” and stated that guns falling outside of the lat-

ter categories “traditionally have been widely accepted as lawful possessions.”

Id., at 612 (emphasis added). The point of the discussion was that guns like the

AR-15 have been widely accepted as lawful possessions, and therefore mens res

was not established merely by establishing that the defendant knew he was in

possession of an AR-15. Thus, the panel’s holding that AR-15s are legally in-

distinguishable from machine guns like the M-16 conflicts with Staples.

Moreover, the panel’s belief that semi-automatic firearms may be

banned because they are similar to automatic firearms is wrong, because many

23
of the handguns that Heller held are protected by the Second Amendment are

semi-automatic. In Heller II, then-Judge Kavanaugh put the matter this way:

“D.C. asks this Court to find that the Second Amendment protects semi-auto-

matic handguns but not semi-automatic rifles. There is no basis in Heller for

drawing a constitutional distinction between semi-automatic handguns and

semi-automatic rifles.” Id., at 1286 (Kavanaugh, J., dissenting). In summary,

as then-Judge Kavanaugh wrote, there is no meaningful constitutional distinc-

tion between the semi-automatic handguns protected under Heller and the

semi-automatic rifles banned by the State. It follows that the panel’s holding

that the rifles are unprotected because their ability to fire semi-automatically

makes them similar to machineguns conflicts with Heller.

J. The Seventh Circuit Failed to Apply Bruen to the Maga-

zine Ban

Concerning the Act’s ban of “large capacity magazines,” the court be-

low wrote:

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.

App. 162.

The Court might wonder what else the panel said to justify its decision

to uphold the magazine ban. But that’s it, one paragraph. This is not judicial

analysis. This is judicial fiat. Moreover, the panel’s fiat conflicts with Heller.

24
As discussed above, the fact that a weapon may be used by the military does

not mean that the State can ban it if the weapon is in common use for lawful

purposes. Moreover, the panel seems to be under the impression that the State

can ban some magazines (even though they are in common use) so long as it

deigns to allow its citizens to acquire other magazines. But there is no limiting

principle to the panel’s reasoning. Can the State also ban magazines with a

capacity in excess of two rounds because anyone who wants greater firepower

is free to purchase several magazines of the permitted size? It would seem so

under the panel’s analysis, i.e., a person who might have preferred buying a

magazine that loads 30 rounds can buy 15 two-round magazines instead. This

conclusion obviously conflicts with Heller. Indeed, Heller rejected the precise

argument advanced by the panel when it held that it is “no answer” to say that

banning a commonly possessed arm is permitted so long as other arms are al-

lowed. 554 U.S. at 629.

K. The Panel Majority’s Continued Reliance on Friedman

Cannot be Reconciled with Bruen or Caetano

In Friedman v. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir.

2015), the court announced a unique three-part test to determine Second

Amendment questions. Under this test, a court asks: “whether a regulation [1]

bans weapons that were common at the time of ratification or [2] those that

have ‘some reasonable relationship to the preservation or efficiency of a well

regulated militia’ . . . and [3] whether law-abiding citizens retain adequate

25
means of self-defense.” Id., 784 F.3d at 410. All three legs of this test are fore-

closed by Supreme Court precedent:

[1] 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).

[2] The Second Amendment’s operative clause “does not depend on ser-

vice in the militia.” Bruen, 142 S. Ct. at 2127.

[3] “[T]he right to bear other weapons is ‘no answer’ to a ban on the pos-

session of protected arms.” Caetano v. Massachusetts, 577 U.S. 411, 421 (2016)

(per curiam), quoting Heller, 554 U.S. at 629.

It is a mystery why the panel majority believes Friedman has any con-

tinuing relevance at all when all three legs of the stool upon which it is propped

have been knocked out by this Court. It is even more mystifying that the panel

would base its holding in part on the obviously abrogated Friedman test, and

doing so obviously conflicts with this Court’s decisions that knocked out Fried-

man’s three legs.

VI. Plaintiffs Are Suffering Irreparable Harm

Plaintiffs have established that they are likely to prevail on the merits

of their claim that the Act violates the Second Amendment. Violation of consti-

tutional rights per se constitutes irreparable injury. Elrod v. Burns, 427 U.S.

347, 373-74 (1976) (loss of constitutional freedom “for even minimal periods of

time” unquestionably constitutes irreparable injury). Recently, the Ninth

26
Circuit applied the Elrod principle in the Second Amendment context. Baird

v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023). See also Ezell v. City of Chicago,

651 F.3d 684, 699 (7th Cir. 2011) (also applying principle in Second Amend-

ment context).

Moreover, Plaintiffs are applying for emergency relief because they are

suffering much more than intangible harm to constitutional rights. Respond-

ents are literally destroying Mr. Bevis’s livelihood, because the challenged laws

are forcing LWI out of business. App.127 ¶ 13. 85% of the firearms LWI sells

are now banned. Id., ¶ 12. LWI’s cash reserves have been depleted, and as a

result, it has had to lay off employees and ask the Bevis family to work without

pay. Id., ¶ 13. Mr. Bevis has extended his personal credit, missed personal pay-

ments like home and car payments, maxed his credit limits, and taken out

loans to pay the monthly bills. Id. LWI will not be able to abide by the terms of

its 15-year commercial lease for its business real property or pay equipment

leases and purchase inventory if these bans remain in effect much longer. Id.

In short, LWI will be put out of business if these laws are enforced. Id. In Cavel

Int’l, Inc. v. Madigan, 500 F.3d 544, 546 (7th Cir. 2007), the court held that the

plaintiffs “made a compelling case that it needs the injunction pending appeal

to avert serious irreparable harm—the uncompensated death of its business.”

Here, the Court should enter an injunction to prevent further irreparable

harm.

27
VII. An Injunction Would Not Harm the Public Interest

However strong Respondents’ asserted public safety policy may be, the

public has no interest in furthering that policy by unconstitutional means. As

this Court stated in Heller in response to an identical argument, “the enshrine-

ment of constitutional rights necessarily takes certain policy choices off the

table. These include the absolute prohibition of [arms commonly] held and used

for self-defense in the home.” Id., 554 U.S. at 636. And as this Court stated in

Bruen, the interest-balancing inherent in the district court’s public interest

analysis has no place in resolving questions under the Second Amendment. Id.,

142 S. Ct. at 2126. It is always in the public interest to enjoin an unconstitu-

tional law. See N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir.

2013).

VIII. Cases Upholding Arms Bans

Plaintiffs include this section to inform the Court of the post-Bruen

cases that have upheld bans on firearms or LCMs in common use: Duncan v.

Bonta, 83 F.4th 803 (9th Cir. 2023) (staying injunction of California’s LCM ban

on ground that state is likely to prevail on merits); Miller v. Bonta, Case No.

23-2979 (ECF 13) (9th Cir. 2023) (staying injunction of California’s assault

weapon ban on ground that state is likely to prevail on merits); Bevis v. City of

Naperville, Illinois, 2023 WL 7273709 (7th Cir. Nov. 3, 2023); Or. Firearms

Fed’n v. Kotek, 2023 WL 4541027, at *55 (D. Or. July 14, 2023) (upholding

Oregon’s law restricting LCMs); Or. Firearms Fed’n v. Brown, 644 F. Supp. 3d

28
782, 813 (D. Or. 2022) (denying plaintiffs’ motion for TRO); Brumback v. Fer-

guson, 2023 WL 6221425, at *12 (E.D. Wash. Sept. 25, 2023) (denying plain-

tiffs’ motion for a preliminary injunction in challenge to Washington’s law re-

stricting LCMs); Hartford v. Ferguson, 2023 WL 3836230, at *7 (W.D. Wash.

Jun. 6, 2023) (same, as to Washington’s assault weapon law); Nat’l Ass’n for

Gun Rights v. Lamont, 2023 WL 4975979, at *26 (D. Conn. Aug. 3, 2023) (same,

as to Connecticut’s assault weapon and LCM laws); Hanson v. District of Co-

lumbia, 2023 WL 3019777, at *5 (D.D.C. Apr. 20, 2023) (same, as to D.C.’s LCM

law); Del. State Sportsmen’s Ass’n, Inc. v. Del. Dep’t of Safety & Homeland Sec.,

2023 WL 2655150, at *3 (D. Del. Mar. 27, 2023) (same, as to Delaware’s assault

weapon and LCM laws); Ocean State Tactical, LLC v. Rhode Island, 646 F.

Supp. 3d 368, 373 (D.R.I. 2022) (same, as to Rhode Island’s LCM law).

Plaintiffs are unaware of a single contested court decision upholding a

challenge to a ban of a firearm or LCM in common use.13

CONCLUSION

Plaintiffs have established all of the elements required to demonstrate

that they are entitled to injunctive relief pending the disposition of Plaintiffs’

petition for rehearing en banc in the Seventh Circuit and the filing and dispo-

sition of any follow-on petition for writ of certiorari. Therefore, they respect-

fully request that the Circuit Justice grant this application or refer it to the

13The three district court decisions upholding challenges (Duncan, Miller and Barnett) have
been reversed or stayed by circuit courts on the ground that the plaintiffs are unlikely to suc-
ceed on the merits.

29
full Court. Specifically, Plaintiffs move the Court for entry of an injunction re-

straining enforcement of the challenged laws pending the disposition of their

petition for rehearing en banc in the Seventh Circuit and the filing and dispo-

sition of any follow-on petition for writ of certiorari.

Respectfully submitted this 27th day of November 2023.

____________________________
Barry K. Arrington
Arrington Law Firm
4195 Wadsworth Boulevard
Wheat Ridge, Colorado 80033
(303) 205-7870
[email protected]
Counsel for Applicants

CERTIFICATE OF COMPLIANCE

I certify pursuant to Rule 33.1(h) of the Rules of this Court that forego-
ing application contains 7,613 words, excluding the parts of the application
that are exempted by Rule 33.1(d).

___________________________
Barry K. Arrington

30