In the Supreme Court, Illinois has filed its brief in opposition in Harrel v. Raoul (and its companion case Herrera v. Raoul).  These cases challenge Illinois’s ban on some semiautomatic rifles (“assault weapons”) and high-capacity magazines.  The brief in opposition is remarkable for how it asks the Supreme Court to expound which “arms” the Second Amendment protects.  The State’s brief leaves me wondering whether Illinois recognizes any rifles to have constitutional protection, or whether the state believes that only handguns and nonlethal self-defense weapons are covered by the Second Amendment.

From the Seventh Circuit’s opinion, the State’s brief asserts the proposition that “the Arms the Second Amendment is talking about are weapons in common use for self-defense.”  Ill. Br. 9.  In contrast, the State claims (again quoting the Seventh Circuit) that “weapons that are exclusively or predominantly useful in military service” may be banned.  Id.  The State claims that this understanding of the Second Amendment is justified by Supreme Court and historical authority.

As applied to the specific semiautomatic rifles at issue in the case, the State gives several reasons why they have no constitutional protection.  Among them, semiautomatic rifles fire high-velocity ammunition that is accurate at a long range.  Such long-range accuracy, the State claims, is “unnecessary for self-defense, which is primarily conducted at close range.”  Ill. Br. 23.  The State also claims that semiautomatic rifles create dangers to bystanders because of the risk of overpenetration.  Id.  Finally, they argue that the Second Amendment protects only smaller weapons that are easier to carry and conceal.  Id. at 24.

These arguments have a much broader application than the semiautomatic firearms at issue in this case.  Manually operated rifles (e.g., bolt-action rifles) in the .30 caliber range also fire high-velocity rifle ammunition that is accurate at a long range.  Indeed, the power of these weapons far exceeds that of the AR-15/M-16, which fires a smaller 5.56mm (approximately .22 caliber) projectile.  So do their range—often out to a 1,000 yards, compared with the M-16’s range of approximately 400-600 yards.  Manually operated rifles are also difficult to wield in the home or to carry in public.  When needed for self-defense, they are slower to fire subsequent shots because each shot must be manually reloaded.  This leads me to believe that the State’s claims, if taken seriously, would erase all rifles from constitutional protection.

Bruen holds that restrictions on the right to bear arms are permissible only if the government can demonstrate that they are “consistent with this Nation’s historical tradition of firearm regulation.”  I am not aware of any historical support for the proposition that rifles primarily useful for military service and accurate at long-range are not “arms” within the meaning of the Second Amendment.  Nor am I aware of any historical basis to conclude that concealable weapons useful only at short range and lacking any serious military value are core constitutionally protected arms.  

Historically, the opposite of both propositions has been true.  All decisions and treatises have recognized that arms primarily useful for military service were protected by the Second Amendment, while arms primarily used as concealed weapons in personal conflicts were not.  See, e.g., United States v. Miller, 307 U.S. 174, 178 (1939) (weapons that constitute “the ordinary military equipment” or that “could contribute to the common defense); Aymette v. State, 21 Tenn. 154, 158 (Tenn. 1840) (“the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment); State v. Smith, 11 La. Ann. 633, 633 (1856) (“The arms there spoken of are such as are borne by a people in war, or at least carried openly.”); Andrews v. State, 50 Tenn. 165, 179 (Tenn. 1871) (“”the usual arms of the citizen of the country, and the use of which will properly train and render him efficient in defense of his own liberties,” including, “the rifle of all descriptions, the shot gun, the musket, and repeater”); Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 282–83 (2d ed. 1891) (“The arms intended by the Constitution are such as are suitable for the general defense of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited.”); 2 Joel Prentiss Bishop, Commentaries on the Criminal Law (4th ed. 1868) (“As to [the Second Amendment’s] interpretation, if we look to this question in the light of judicial reason, without the aid of specific authority, we should be led to the conclusion, that the provision protects only the right to “keep” such “arms” as are used for purposes of war, in distinction from those which are employed in quarrels and brawls and fights between maddened individuals….”).

Historically, the difficult constitutional question was whether arms primarily useful for self-defense (e.g., most handguns) were protected in addition to arms primarily useful for warfare.  Compare English v. State, 42 Tex. 455, 458–59 (1875) (“The arms which every person is secured the right to keep and bear (in the defense of himself or the State, subject to legislative regulation), must be such arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State.”), withEnglish v. State, 35 Tex. 473, 476 (1871) (“The words ‘arms’ in the connection we find it in the constitution of the United States, refers to the arms of a militiaman or soldier, and the word is used in its military sense.”).

Underneath this debate over which “arms” the Second Amendment protects is a critical dispute about the contemporary purpose of the Second Amendment.  Illinois is essentially arguing that the Second Amendment exclusively protects individual self-defense against crime.  The State understands Heller to have divorced entirely the right to keep and bear arms from the Second Amendment’s stated purpose to maintain “[a] well regulated Militia.”  

I think this is an extravagant reading of Heller.  Heller understood the Second Amendment to be an “individual right,” meaning that the right to bear arms does not require prior governmental authorization to exercise (which, as I will argue in an article that I am drafting, is the core claim of the collective-rights approach).  Heller also held that the Second Amendment’s core purpose included individual self-defense against crime.  Heller never held, however, that individual self-defense was the Amendment’s exclusive focus.  To the contrary, Heller explained that “the [English] right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence” (emphasis added).  As a result, the Seventh Circuit’s rule (and that of the Fourth Circuit) that arms most useful in military service are constitutionally unprotected is a complete perversion of the traditional understanding of the Second Amendment. 

These lower court holdings are also a perversion of Justice Scalia’s dicta in Heller.  With no analysis or party presentation, Heller suggested that “dangerous and unusual weapons” might be banned based on the historical tradition against publicly carrying such weapons to the terror of the people.  Heller recognized that such a rule was problematic because it would sweep in the rifles “most useful in military service” such as the M-16.  In this passage, Justice Scalia was suggesting that “dangerous and unusual weapons” would not receive constitutional protection even if they were in common military use.  That proposition is quite different from categorically excluding all weapons primarily useful for military service, which is how these lower courts have understood Heller’s dicta.  Applied to the Framing generation, it would have meant that the musket and bayonet would have received no constitutional protection, a result that would have been anathema to the Framers and diametrically opposed to the Amendment’s public understanding at the Framing.

Thus, the critical question raised by these Supreme Court petitions is whether the Second Amendment will be viewed today as still having some relevance for public defense and the preservation of the militia.  Heller recognizes that the Amendment protects individual self-defense.  Accepting Illinois’s arguments would necessitate understanding Heller to make individual self-defense the exclusive focus of the Second Amendment.  That approach, adopted by the Fourth and Seventh Circuits, would be a proper understanding of the Mexican Constitution.  See Art. 10, as amended (“The inhabitants of the United Mexican States have the right to keep arms at home, for their protection and legitimate defense, with the exception of those prohibited by the Federal Law and those reserved for the exclusive use of the Army, Navy, Air Force and National Guard.”).  But it is difficult to see how it is an appropriate interpretation of the U.S. Constitution, which explicitly links a general right of the people to keep and bear arms with the desire to maintain “[a] well regulated Militia” and “the security of a free State.”

This post also appears on the Firearms Research Center Forum.