Charges against a midwestern man over possession of an unregistered short-barrel rifle don’t violate the Second Amendment, according to three federal judges.
On Monday, the Seventh Circuit Court of Appeals panel upheld the charges after finding the guns weren’t among the “arms” protected by the Constitution. The appeals court, which oversees Illinois, Indiana, and Wisconsin, affirmed a lower court’s decision to dismiss Jamond Rush’s facial challenge to the National Firearms Act’s (NFA) registration requirements. It concluded there is no right to keep and bear short-barreled rifles in particular.
“[W]e decline to make a step one finding that short-barreled rifles are ‘arms’ protected by the Second Amendment’s text—at least not on this occasion under the theories presented by Rush,” Judge Joshua Kolar wrote for the unanimous court in US v. Rush. “The record does not show such firearms are commonly used by ordinary, law-abiding citizens for a lawful purpose like self-defense.”
The ruling deals a setback to challenges against the nearly century-old law that’s been the bane of some gun-rights activists. It provides further backing for the NFA and US v. Miller, the nearly-as-old Supreme Court ruling that upheld its restrictions on short-barrelled shotguns. It could also set up a future showdown at the High Court over whether its conclusions in Miller were superseded by the Second Amendment test the Court created in 2022’s New York State Rifle and Pistol Association v. Bruen.
The NFA, passed in the wake of 1930s gangland violence, taxes certain kinds of firearms–including rifles with barrels shorter than 16 inches in length. It then requires owners to register the affected guns with the Bureau of Alcohol, Tobacco, Firearms, and Explosive (ATF) as proof they paid the tax. Otherwise, as in Rush’s case, they could face years in federal prison as a punishment.
In Miller, the Supreme Court upheld a similar conviction over the defendant’s possession of a short-barrel shotgun. The High Court found that the Second Amendment only protects firearms useful for militia service, which would have been those commonly used by average citizens who were required to muster. It concluded that short-barrel shotguns, like those regulated by the NFA, were not among those in everyday use at the time of the case.
Judges Candace Jackson-Akiwumi and John Lee joined Judge Kolar’s opinion. Former President Joe Biden appointed all three. They all agreed that Miller is still good law.
“[W]e are not convinced that Bruen spoke to this issue in a manner that overrules Miller, and that is all we must decide for this appeal,” Judge Kolar wrote.
They argued that Bruen and the High Court’s follow-up in 2024’s US v. Rahimi only expanded on Miller.
“[W]e understand Miller, and its subsequent treatment through Bruen, to emphasize two distinct features of Second Amendment jurisprudence,” he wrote. “One, the type of weapon at issue is of critical importance. Weapons, like machine guns, that are ‘not typically possessed by law-abiding citizens for lawful purposes’ remain unprotected. And two, licensing regimes designed to ensure firearm applicants ‘are, in fact, law-abiding responsible citizens’—including those that impose some pecuniary cost on the applicants—are categorically different than weapons bans.”
The panel reiterated several times that finding Miller still controls is all that’s necessary to uphold Rush’s similar conviction. However, it decided to put the NFA’s tax and registration requirement through the Bruen test anyway.
“In sum, Miller ‘has direct application in [this] case,’ and we therefore follow it. This alone is dispositive and brings Rush’s challenge to a halt,” Judge Kolar wrote. “But central to Rush’s appeal is his assertion that §5861(d) fails under Bruen, and we therefore continue on to consider that framework. Bearing in mind that we leave to the Supreme Court the prerogative of overruling its own decisions, we do this not in the context of first impression, but rather with an eye for whether the test set forth in Bruen is incompatible with Miller.”
Kolar argued the NFA survives the Bruen test. He noted the law doesn’t outright ban short-barrel rifles and, instead, seeks to tax and register them. He also concluded the affected guns aren’t in common use, especially since they are less popular than the AR-15s the Seventh Circuit already concluded the government could outright ban the sale of.
“[W]e decline to make a step one finding that short-barreled rifles are ‘arms’ protected by the Second Amendment’s text—at least not on this occasion under the theories presented by Rush,” he wrote. “The record does not show such firearms are commonly used by ordinary, law-abiding citizens for a lawful purpose like self-defense.”
Kolar cited several regulations from the Founding Era that he argued were proper analogues for the NFA’s tax and register scheme.
“The government points to numerous historical regulations on barrel length, regulations on firearms trade, registration and taxation requirements, and regulations on dangerous and unusual weapons,” he wrote. “For example, a 1649 Massachusetts law, cited in Miller, required musketeers to carry a ‘good fixed musket … not less than three feet, nine inches, nor more than four feet three inches in length….’ Also cited in Miller is a 1785 Virginia law regulating the length of militia members’ firearms, providing that ‘[e]very non-commissioned officer and private’ shall be equipped ‘with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel….'”
Kolar admitted that many of those early regulations were specific to militia members showing up for muster. However, he argued they are still “relevant because the traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes.”
“In all, the government’s historical analogues for barrel length regulations, registration and taxation requirements, as well as regulations of dangerous and unusual weapons are compelling,” he wrote. “With this backdrop, we easily answer the only question at issue for this appeal: does Bruen’s two-step test—or any other Supreme Court holding for that matter—overrule Miller? We see no basis to recognize Miller as overruled. Section 5861(d) is likely ‘relevantly similar’ to these historical regulations in both why and how it burdens any Second Amendment right such that it ‘pass[es] constitutional muster.’ Indeed, §5861(d) imposes a comparable burden to its historic counterparts, and in some cases, a lesser one, requiring mere registration of an otherwise lawful firearm.”
Rush can appeal the decision to the full panel of the Seventh Circuit and, potentially, to the Supreme Court after that.
