No.

22A948

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 corporation,
Plaintiffs-Applicants,

v.

CITY OF NAPERVILLE, ILLINOIS, and JASON ARRES,

Defendants-Respondents,

and

THE STATE OF ILLINOIS

Intervenor-Respondent.

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

States Supreme Court and Circuit Justice for the Seventh Circuit

RESPONSE IN OPPOSITION TO EMERGENCY APPLICATION FOR

INJUNCTION PENDING APPELLATE REVIEW

KWAME RAOUL
Illinois Attorney General
JANE ELINOR NOTZ*
Solicitor General
SARAH A. HUNGER
Deputy Solicitor General
CARSON R. GRIFFIS
Assistant Attorney General
100 West Randolph Street
Chicago, Illinois 60601
(312) 814-5376
[email protected]

*Counsel of Record

Attorneys for Intervenor-Respondent the State of Illinois

 i

TABLE OF CONTENTS
Page

INTRODUCTION ............................................................................................................. 1

STATEMENT OF THE CASE ......................................................................................... 2

A. Regulatory background ......................................................................................... 2

B. Applicants file suit and seek preliminary injunctive relief ................................. 4

C. The district court denies preliminary injunctive relief ........................................ 6

D. Applicants’ motions for an injunction pending appeal are denied ...................... 7

ARGUMENT .................................................................................................................... 9

I. Applicants Have Not Shown That This Court Is Likely To Grant Certiorari
Or That An Injunction Would Be In Aid Of The Court’s Jurisdiction. ............. 10

II. Applicants Have Not Shown That They Are Indisputably Entitled To
Relief. ................................................................................................................... 14

A. It is not indisputably clear that the Act regulates conduct protected

by the Second Amendment. ...................................................................... 14

B. It is not indisputably clear that the Act is inconsistent with the

Nation’s history of regulating firearms.................................................... 23

III. No Critical Or Exigent Circumstances Exist That Would Warrant An

Injunction Pending Appeal.................................................................................. 32

CONCLUSION ............................................................................................................... 37
 ii

TABLE OF AUTHORITIES

Page(s)
Cases

Abbott v. Veasey,
580 U.S. 1104 (2017) ......................................................................................... 12

Am. Constr. Co. v. Jacksonville, Tampa & Key West Ry. Co.,
148 U.S. 372 (1893) ........................................................................................... 12

Barnett v. Raoul,
No. 3:23-cv-00209-SPM, 2023 U.S. Dist. LEXIS 74756
(S.D. Ill. Apr. 28, 2023) ................................................................................. 2, 11

Box v. Planned Parenthood of Ind. & Ky., Inc.,

139 S. Ct. 1780 (2019) ....................................................................................... 11

Brown v. Gilmore,
533 U.S. 1301 (2001) ............................................................................. 10, 33, 34

Cavel International, Inc. v. Madigan,

500 F.3d 544 (7th Cir. 2007) ........................................................................ 34-35

Certain Named and Unnamed Non-citizen Children v. Texas,

448 U.S. 1327 (1980) ..................................................................................... 9, 10

Del. State Sportsmen’s Ass’n, Inc. v. Del. Dep’t of Safety & Homeland Sec.,
No. CV 22-951-RGA, 2023 U.S. Dist. LEXIS 51322
(D. Del. Mar. 27, 2023) .......................................................................... 11, 19, 29

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................................... 15-16, 19, 22, 26, 28, 30-32

Doe v. Gonzales,
546 U.S. 1301 (2005) ......................................................................................... 13

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) ............................................................................. 34

Fenner v. Boykin,
271 U.S. 240 (1926) ........................................................................................... 33
 iii

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251 (1916) ........................................................................................... 12

Hanson v. Dist. of Columbia,

No. CV 22-2256 (RC), 2023 U.S. Dist. LEXIS 68782
(D.D.C. Apr. 20, 2023) ........................................................................... 11, 21, 24

Herrera v. Raoul,
No. 23 CV 532, 2023 U.S. Dist. LEXIS 71756
(N.D. Ill. Apr. 25, 2023)..................................................................................... 11

Hobby Lobby Stores, Inc. v. Sebelius,

568 U.S. 1401 (2012) ................................................................................... 13, 14

Kolbe v. Hogan,
849 F.3d 114 (4th Cir. 2017) ............................................................................. 21

Lux v. Rodrigues,
561 U.S. 1306 (2010) ..................................................................................... 9, 34

McDonald v. City of Chi.,

561 U.S. 742 (2010) ........................................................................................... 15

Mount Soledad Mem’l Ass’n v. Trunk,

567 U.S. 944 (2012) ........................................................................................... 12

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 1, 14-15, 17, 19, 21,
142 S. Ct. 2111 (2022) ............................................................ 23-24, 26-27, 29-32

N.Y. State Rifle & Pistol Ass’n. v. Cuomo,

804 F.3d 242 (2d Cir. 2015) .............................................................................. 36

Ocean State Tactical, LLC v. Rhode Island,

No. 22-CV-246 JJM-PAS, 2022 U.S. Dist. LEXIS 227097
(D.R.I. Dec. 14, 2022) ....................................................................... 11, 15-16, 36

Ohio Citizens for Reasonable Energy, Inc. v. Nuclear Regulatory Comm’n,

479 U.S. 1312 (1986) ........................................................................................... 9

Or. Firearms Fed’n, Inc. v. Brown,

No. 2:22-CV-01815-IM, 2022 U.S. Dist. LEXIS 219391
(D. Or. Dec. 6, 2022) .................................................................................... 11, 24

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) ........................................................................................... 33
 iv

Sampson v. Murray,
415 U.S. 61 (1974) ............................................................................................. 35

State v. Huntly,
25 N.C. 418 (1843) ............................................................................................. 32

United States v. Miller,

307 U.S. 174 (1939) ........................................................................................... 28

Va. Mil. Inst. v. United States,

113 S. Ct. 2431 (1993) ....................................................................................... 12

Whole Woman’s Health v. Jackson,

141 S. Ct. 2494 (2021) ......................................................................................... 9

Wis. Right to Life, Inc. v. Fed. Elections Comm’n,

542 U.S. 1305 (2004) ........................................................................................... 9

Witters v. Wash. Dep’t of Servs. for the Blind,

474 U.S. 481 (1986) ........................................................................................... 17

Wrotten v. New York,

560 U.S. 959 (2010) ........................................................................................... 12

Federal Statutes

28 U.S.C. § 1651(a) .............................................................................................. 1, 9, 13

28 U.S.C. § 2403(b) ........................................................................................................ 7

State Statutes

720 ILCS 5/24-1.9 ....................................................................................................... 3-4

720 ILCS 5/24-1.10 ............................................................................................... 3-4, 19

1642 N.Y. Laws 33 ....................................................................................................... 26

1686 N.J. 289, 289-90, ch. 9 ........................................................................................ 26

1750 Mass. Acts 544, ch. 17, § 1 .................................................................................. 26

A Collection of the Statutes of the Parliament of England in Force

in the State of North-Carolina 60, ch. 3 (1792) ................................................ 27
 v

Ill. Pub. Act 102-1116 (eff. Jan. 10, 2023) ..................................................................... 1

Other Authorities

U.S. Sup. Ct. R. 10 ................................................................................................. 11, 13

Fed. R. Civ. P. 5.1 .......................................................................................................... 7

ABC7 Chicago Digital Team,

Highland Park Shooting: Orphaned Toddler Doesn’t Know Parents
Are Dead, https://bit.ly/3J7WI9v (July 8, 2022) ................................................ 3

Associated Press,
Highland Park Parade Shooting Suspect Pleads Not Guilty,
http://bit.ly/423ISxG (Aug. 3, 2022).................................................................... 3

4 William Blackstone,
Commentaries on the Laws of England (1769) ................................................ 26

William English,
2021 National Firearms Survey: Updated Analysis Including
Types of Firearms Owned (May 13, 2022) ................................................... 17-19

Peter Hancock,
Lawmakers Hear from Advocates for Assault Weapon Ban, Capitol News
Illinois, http://bit.ly/3Jw80WG (Dec. 12, 2022) .................................................. 2

Shia Kapos, Illinois House Passes Assault Gun Bill, Politico,

http://bit.ly/3YwxU0E (Jan. 6, 2023) .............................................................. 2-3

Victoria Kim & Amanda Holpuch,

What We Know About The Shooting In Highland Park, N.Y. Times,
http://bit.ly/3ytxFZv (July 7, 2022) .................................................................. 2-3

Law Weapons & Supply, Law Weapons In-House Gun-Smithing Service,

https://bit.ly/3Fby3jk ......................................................................................... 35

Law Weapons & Supply, Law Weapons Training Courses,

https://bit.ly/3ZBbtJ8 ........................................................................................ 35

Law Weapons & Supply, Online Store,

http://bit.ly/3ZTimoU ........................................................................................ 35

Records of the Colony of New Plymouth in New England, Boston 230 (1671) ......... 26
 vi

Robert J. Spitzer,
Gun Accessories and the Second Amendment,
83 J.L. & Contemp. Probs. 331 (2020).............................................................. 21
 1

INTRODUCTION

In accordance with Justice Barrett’s order of May 1, 2023, Intervenor-

Respondent the State of Illinois responds to the “Emergency Application for

Injunction Pending Appellate Review” filed by Applicants National Association

for Gun Rights, Robert C. Bevis, and Law Weapons, Inc., d/b/a Law Weapons &

Supply.

Applicants’ extraordinary request to enjoin a presumptively valid state

statute while their interlocutory appeal is pending in the United States Court of

Appeals for the Seventh Circuit should be denied. Applicants have not attempted

to make—and cannot make—the essential threshold showings that this Court

would be likely to grant certiorari in this interlocutory appeal or that an

injunction pending appeal would be in aid of this Court’s jurisdiction under the

All Writs Act, 28 U.S.C. § 1651(a). On those grounds alone, the application

should be denied.

Beyond that, applicants have not shown that it is indisputably clear that

they will prevail on their claim that the Protect Illinois Communities Act, Illinois

Public Act 102-1116 (“Act”), violates the Second Amendment. Nor could they,

since this Court has not addressed a Second Amendment challenge to a law

similar to the Act, and—after applying the two-step framework set forth in New

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

courts have declined to enjoin the Act and four more district courts have declined

to enjoin similar laws. These decisions confirm that it is not indisputable that
 2

applicants will succeed on the merits of their claim.1

Applicants also have failed to show that crucial or exigent circumstances

exist that would require this Court’s immediate intervention. Applicants delayed

seeking an injunction pending appeal at each stage of these proceedings, belying

their argument that they need emergency relief. Then, to support the existence of

an emergency, applicants rely on a presumption of irreparable harm that this

Court has never applied outside of First Amendment cases, again demonstrating

that their right to relief is not indisputably clear. Otherwise, they rely on

inapposite court of appeals precedent and the alleged financial losses of a single

gun store, neither of which shows that they will incur irreparable harm absent an

injunction pending appeal.

STATEMENT OF THE CASE

A. Regulatory background.

On July 4, 2022, a shooter armed with a semiautomatic AR-15 rifle and 30-

round magazines opened fire on an Independence Day parade in Highland Park,

Illinois.2 The weapon allowed the shooter to fire 83 rounds in less than a minute,

killing 7 and wounding 48.3 Among the victims were an eight-year-old boy left

1 The district court in Barnett v. Raoul, No. 3:23-cv-00209-SPM, 2023 U.S. Dist.
LEXIS 74756 (S.D. Ill. Apr. 28, 2023), entered a preliminary injunction precluding
the State from enforcing the Act, but the Seventh Circuit has stayed that injunction
pending further order of the court, Barnett v. Raoul, No. 23-1825, ECF No. 9 (7th
Cir.).
2Victoria Kim & Amanda Holpuch, What We Know About The Shooting In
Highland Park, N.Y. Times, http://bit.ly/3ytxFZv (July 7, 2022).
3Peter Hancock, Lawmakers Hear from Advocates for Assault Weapon Ban,
Capitol News Illinois, http://bit.ly/3Jw80WG (Dec. 12, 2022); Shia Kapos, Illinois
 3

paralyzed from the waist down and both parents of a two-year-old child.4 A

Highland Park ordinance prohibited the sale of assault weapons, but the shooter

had legally purchased the murder weapon elsewhere in Illinois.5

One month later, Naperville passed an ordinance prohibiting the sale of

assault weapons within city limits. Doc. 57-2.6 And on January 10, 2023, the State

passed the Act, which restricts the sale, purchase, manufacture, delivery, or

importation of “assault weapon[s]” and “large capacity ammunition feeding

device[s]” (“LCMs”) in Illinois subject to certain exceptions, including for law

enforcement, members of the military, and other professionals with similar firearms

training and experience. 720 ILCS 5/24-1.9, 1.10. The Act adopts a two-fold

definition of assault weapons, in which it identifies specific weapons by name (e.g.,

AR-15 and AK-47 rifles) and lists features that, individually or in combination,

make specific firearms “assault weapons” (e.g., flash suppressors, barrel shrouds, or

grenade launchers). Id. 24-1.9(a)(1)(A)-(L). The Act excludes most commonly

owned handguns, as well as firearms operated by bolt, pump, lever, or slide action,

from that definition. Id. 24-1.9(a)(2). LCMs are defined as a magazine or similar

House Passes Assault Gun Bill, Politico, http://bit.ly/3YwxU0E (Jan. 6, 2023).

4 Associated Press, Highland Park Parade Shooting Suspect Pleads Not Guilty,
http://bit.ly/423ISxG (Aug. 3, 2022); ABC7 Chicago Digital Team, Highland Park
Shooting: Orphaned Toddler Doesn’t Know Parents Are Dead,
https://bit.ly/3J7WI9v (July 8, 2022).
5 Kim & Holpuch, supra note 2.
6 The emergency application is cited as “App.__.” The appendix attached to that
application is cited as “Appx. ___.” Citations to the district court docket are
identified by the docket number and page number if applicable, e.g., “Doc. __ at __.”
Similarly, the Seventh Circuit docket is cited as “7th Cir. Doc. __ at __.”
 4

device that can accept more than 10 rounds of ammunition for a long gun or more

than 15 rounds for handguns. Id. 24-1.10(a)(1).

Individuals who lawfully possessed assault weapons and LCMs prior to the

Act can continue to do so. Id. 1.9(c)-(d) & 1.10(c)-(d). To continue lawfully

possessing an assault weapon, an individual must submit to the State Police an

endorsement affidavit by January 1, 2024. Id. 24-1.9(d). This requirement does not

extend to LCMs. Id. 24-1.10(d).

B. Applicants file suit and seek preliminary injunctive relief.

In September 2022, applicants—an advocacy group, a gun store, and the

store’s owner—filed a complaint against Naperville claiming that its ordinance

banning the commercial sale of certain assault rifles within the city limits violated

their Second Amendment rights. Doc. 1 at 1-3. Two months later, applicants

moved for a temporary restraining order and preliminary injunction to prohibit the

Naperville ordinance from taking effect. Doc. 10. Naperville filed a response and

supplemental brief defending the ordinance’s constitutionality. Docs. 12, 34. As

support, Naperville relied on declarations from experts that addressed the historical

underpinnings of state and local regulations of assault weapons, the evolution of

firearms technology, and the emergence of deadly mass shootings in recent decades,

among other topics. Doc. 34-1.

On January 24, 2023, applicants filed an amended complaint adding a claim

that the Act violated the Second Amendment. Doc. 48 at 1, 6-7. They named no

state officials as defendants, but named Naperville Police Chief Jason Arres on the
 5

theory that he was responsible for enforcing the Act against them. Id. at 1, 3. That

same day, applicants filed a motion for a temporary restraining order and

preliminary injunction seeking to enjoin Arres from enforcing the Act. Doc. 50 at 1,

13-25. Their motion did not include any argument related to inadequate remedy at

law, irreparable harm, or equitable balancing. Id. In support, applicants attached

a declaration from an employee of a firearms industry trade association, stating

that, between 1990 and 2021, more than 20 million AR-platform rifles were

manufactured in the United States, such rifles were “owned by millions of persons,”

and there were at least 150 million LCMs “in possession of American citizens.” Doc.

50-3 ¶ 7. They also attached a declaration from the gun store’s owner stating that a

“substantial part” of his business included sales of assault weapons and LCMs.

Doc. 50-2 ¶ 3.

Naperville responded, arguing that applicants were unlikely to succeed on

the merits because the Act was constitutional under Bruen’s text-and-history

standard. Doc. 57 at 9-14. In support, Naperville attached eight expert

declarations. Many of these described the unique danger and lethality of assault

weapons, Doc. 57-4 ¶¶ 25-57; Doc. 57-6 ¶¶ 12-35; Doc. 57-9 ¶¶ 19-30, and explained

that they were developed and marketed as military-style offensive weapons rather

than as a means for self-defense, Doc. 57-5 ¶¶ 24-42; Doc. 57-11 ¶¶ 56-58. In fact,

the experts recounted, assault weapons and LCMs are not as effective or suitable

for self-defense as handguns and shotguns, Doc. 57-4 ¶¶ 58-61, and are not in

common use for those purposes, Doc. 57-4 ¶ 36; Doc. 57-7 ¶¶ 27-29. On the
 6

contrary, they are increasingly used in crimes of violence, including mass shootings.

Doc. 57-4 ¶¶ 41-57; Doc. 57-7 ¶¶ 10-22; Doc. 57-8 ¶¶ 54-61.

Naperville also presented historical evidence demonstrating that from the

colonial era onward, States have regulated weapons that were thought to be

especially dangerous and unusual—from knives, clubs, pistols, and revolvers in the

18th and 19th centuries to automatic and semiautomatic firearms in the early 20th

century. Doc. 58-7; Doc. 57-10; Doc. 57-11. In particular, it offered evidence that

there is a longstanding and regular course of practice in this country whereby a

weapon is introduced into society, proliferates to the point where its use has become

a significant threat to public safety, and is then regulated by the government to

curb violence and protect the public. E.g., Doc. 57-10 ¶ 8.

C. The district court denies preliminary injunctive relief.

On February 17, the district court denied applicants’ motions. Doc. 63. First,

the court determined that they “are unlikely to succeed on the merits of their claim

because Naperville’s Ordinance and the . . . Act are consistent with the Second

Amendment’s text, history, and tradition.” Id. at 5. In particular, the court

explained, “the text of the Second Amendment is limited to only certain arms, and

history and tradition demonstrate that particularly ‘dangerous’ weapons are

unprotected.” Id. at 18. “Because assault weapons are particularly dangerous

weapons and high-capacity magazines are particularly dangerous weapon

accessories, their regulation accords with history and tradition.” Id. at 30.
 7

The court also found that applicants had not demonstrated that they would

suffer irreparable harm because the gun store could “still sell almost any other type

of gun” and the advocacy group’s members could acquire “other effective weapons

for self-defense.” Id. at 32. Finally, as to the balancing of equities, the court found

that Naperville had “compellingly argue[d]” that the Act and the ordinance would

protect public safety. Id. at 33.

D. Applicants’ motions for an injunction pending appeal are denied.

On February 21, applicants filed a notice of appeal. Doc. 64. Two days later,

the State filed motions to intervene in the district court and the Seventh Circuit

under 28 U.S.C. § 2403(b) and Federal Rule of Civil Procedure 5.1, which were

allowed. Docs. 68, 70; 7th Cir. Docs. 3, 7. On February 28, 11 days after the district

court denied their motions for a preliminary injunction, applicants filed a motion for

an injunction pending appeal in the district court, arguing for the first time that

they established irreparable harm and that any injunction protecting their alleged

constitutional rights would be in the public interest. Doc. 71. As support,

applicants cited a supplemental declaration from the gun store’s owner claiming

that it would be “forced out of business.” Doc. 71-1 ¶ 10. The State filed a motion

for leave to respond. Doc. 72. On March 2, the district court denied applicants’

motion based on the reasoning of its February 17 order and denied the State’s

motion as moot. Doc. 73.

Five days later, on March 7, applicants moved for an injunction pending

appeal in the Seventh Circuit, seeking an injunction based on the same arguments
 8

they pressed below. 7th Cir. Doc. 8. Defendants filed responses objecting to entry

of an injunction. 7th Cir. Docs. 13, 17. The State submitted appendices in support

of its response that included expert declarations it has submitted in defense of the

Act in other federal cases and that it intends to submit in the district court when

afforded the opportunity. 7th Cir. Docs. 14, 15.

On April 3, applicants filed their opening brief on the merits in the Seventh

Circuit. 7th Cir. Doc. 27. On April 18, the Seventh Circuit denied applicants’

motion for injunction pending appeal. 7th Cir. Doc. 51. Eight days later, on April

26, applicants submitted their emergency application for an injunction pending

appeal to this Court. App. 30. And on May 3, the State and Naperville filed their

response briefs in the Seventh Circuit. 7th Cir. Docs. 56, 59.
 9

ARGUMENT

The application for an injunction pending appeal should be denied. Because

applicants ask this Court to disturb the Seventh Circuit’s decision to deny their

motion for injunction pending appeal, they “bear an augmented burden” of showing

“that the Court eventually either will grant certiorari or note probable jurisdiction.”

Certain Named and Unnamed Non-citizen Children v. Texas, 448 U.S. 1327, 1331

(1980) (Powell, J., in chambers). Furthermore, any injunction pending appeal must

be “necessary or appropriate in aid of [this Court’s] jurisdiction.” 28 U.S.C. §

1651(a); see also Wis. Right to Life, Inc. v. Fed. Elections Comm’n, 542 U.S. 1305,

1306 (2004) (Rehnquist, C.J., in chambers) (same).

And as with any request for an injunction, applicants must make a “strong

showing” that they are likely to prevail on the merits, that they will suffer

irreparable harm absent an injunction, and that an injunction would not harm the

public interest. Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021)

(cleaned up). Moreover, applicants’ request would “not simply suspend judicial

alteration of the status quo”; they seek to alter the status quo and obtain “judicial

intervention that has been withheld by lower courts.” Lux v. Rodrigues, 561 U.S.

1306, 1307 (2010) (Roberts, C.J., in chambers) (cleaned up). Such relief thus

“demands a significantly higher justification” than that needed for a stay. Ohio

Citizens for Reasonable Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312,

1313 (1986) (Scalia, J., in chambers). To obtain it, “an applicant must demonstrate

that the legal rights at issue are indisputably clear,” Lux, 561 U.S. at 1307 (cleaned
 10

up), and that “the most critical and exigent circumstances” exist before “the

enforcement of a presumptively valid state statute” will be enjoined, Brown v.

Gilmore, 533 U.S. 1301, 1303 (2001) (Rehnquist, C.J., in chambers) (cleaned up).

For several reasons, applicants have not met this heightened standard.

First, they have ignored the essential threshold issues of whether the Court will

grant interlocutory review in this case (which is unlikely) and whether an

injunction pending appeal would be in aid of this Court’s jurisdiction (which it

would not). Second, applicants have not shown that they have an indisputably clear

right to relief because this Court has not addressed the constitutionality of a law

similar to the Act, and it is not indisputably clear that they will prevail under

Bruen’s two-step test for Second Amendment challenges. And third, applicants

have not shown that critical or exigent circumstances exist. In fact, they have

delayed in seeking emergency relief, they have not shown that they will suffer any

irreparable harm absent an injunction, and any alleged harm is outweighed by the

public interest in keeping the Act in effect.

I. Applicants Have Not Shown That This Court Is Likely To Grant

Certiorari Or That An Injunction Would Be In Aid Of The Court’s
Jurisdiction.

At the outset, applicants have not made the “exceptional” showing that the

Court is likely to grant certiorari to review either the district court’s denial of a

preliminary injunction or the Seventh Circuit’s forthcoming decision on appeal from

that denial. Certain Named and Unnamed Non-citizen Children, 448 U.S. at 1331.

In fact, the Court is unlikely to grant review because there is no circuit split on the
 11

question presented in this appeal, further percolation on this question is warranted,

and the Court generally declines to review interlocutory appeals.

1. To start, there is no conflict among the United States Courts of Appeal

or the state courts of last resort as to the question presented in the emergency

application. See U.S. Sup. Ct. R. 10. In fact, since Bruen, district courts have

almost uniformly denied motions for preliminary injunctions as to the Act and

similar statutes. See Herrera v. Raoul, No. 23 CV 532, 2023 U.S. Dist. LEXIS

71756 (N.D. Ill. Apr. 25, 2023) appeal docketed No. 23-1793 (7th Cir. Apr. 26, 2023);

Hanson v. Dist. of Columbia, No. CV 22-2256 (RC), 2023 U.S. Dist. LEXIS 68782

(D.D.C. Apr. 20, 2023); Del. State Sportsmen’s Ass’n, Inc. v. Del. Dep’t of Safety &

Homeland Sec., No. CV 22-951-RGA, 2023 U.S. Dist. LEXIS 51322 (D. Del. Mar. 27,

2023) appeal docketed No. 23-1633 (3d Cir. Apr. 7, 2023); Ocean State Tactical, LLC

v. Rhode Island, No. 22-CV-246 JJM-PAS, 2022 U.S. Dist. LEXIS 227097 (D.R.I.

Dec. 14, 2022) appeal docketed No. 23-01072 (1st Cir. Jan. 23, 2023); Or. Firearms

Fed’n, Inc. v. Brown, No. 2:22-CV-01815-IM, 2022 U.S. Dist. LEXIS 219391 (D. Or.

Dec. 6, 2022) appeal voluntarily dismissed No. 22-36011 (9th Cir. Dec. 12, 2022);

but see Barnett, 2023 U.S. Dist. LEXIS 74756 appeal docketed No. 23-1825 (7th Cir.

May 1, 2023) and order stayed, ECF No. 9 (7th Cir. May 4, 2023). No courts of

appeal have resolved any appeals from those decisions. Accordingly, this case does

not satisfy the Court’s criteria for certiorari review, and, at the very least, further

percolation is warranted. See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S.

Ct. 1780, 1782 (2019) (per curiam) (describing “ordinary practice of denying
 12

[certiorari] petitions insofar as they raise legal issues that have not been considered

by additional Courts of Appeals”).

2. The interlocutory posture of this case is an additional reason why the

Court is unlikely to grant certiorari. As detailed infra pp. 14-32, this case and

others like it present complex legal issues requiring fully developed evidentiary and

historical records. The Court, therefore, would benefit from further development of

the parties’ evidence and argument. This is especially true because the district

court denied applicants’ motions for preliminary injunction before the State had

intervened and presented any evidence or arguments as to the Act’s

constitutionality. See Docs. 63, 68, 70, 73. In fact, this Court usually denies review

when a case is in an interlocutory posture—even when it presents a significant

constitutional question. See, e.g., Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251, 258 (1916); Am. Constr. Co. v. Jacksonville, Tampa & Key West Ry.

Co., 148 U.S. 372, 384 (1893); see also Abbott v. Veasey, 580 U.S. 1104, 1104-05

(2017) (Roberts, C.J., statement respecting denial of certiorari); Mount Soledad

Mem’l Ass’n v. Trunk, 567 U.S. 944, 945 (2012) (Alito, J., statement respecting

denial of certiorari); Wrotten v. New York, 560 U.S. 959, 960 (2010) (Sotomayor, J.,

statement respecting denial of certiorari); Va. Mil. Inst. v. United States, 113 S. Ct.

2431, 2431-32 (1993) (Scalia, J., statement respecting denial of certiorari). That

this is an interlocutory appeal thus is another reason why this Court is unlikely to

grant certiorari.

3. Nor have applicants explained why an injunction pending appeal

 13

would be in aid of this Court’s jurisdiction, as required by 28 U.S.C. § 1651(a).

Should the Seventh Circuit affirm the district court’s denial of the preliminary

injunction, applicants could petition this Court for a writ of certiorari. And if the

district court proceedings are resolved by a final judgment in the State’s favor,

applicants could appeal that decision, too. Declining to enjoin the Act now will not

preclude this Court from later exercising its jurisdiction when the record and

arguments have further developed. E.g., Hobby Lobby Stores, Inc. v. Sebelius, 568

U.S. 1401, 1404 (2012) (Sotomayor, J., in chambers) (injunction pending appeal

would not be in aid of Court’s jurisdiction because “applicants may continue their

challenge to the regulations in the lower courts” and “file a petition for a writ of

certiorari” after “final judgment”). And the parties are acting promptly in the

Seventh Circuit—the opening and response briefs have been filed on schedule, the

reply brief is to be filed on May 24, and the State stands ready for oral argument at

the court’s earliest convenience. See Doe v. Gonzales, 546 U.S. 1301, 1308 (2005)

(Ginsburg, J., in chambers) (declining to vacate Second Circuit stay order where

“principal briefs [had] been filed” and court appeared to be “proceeding to

adjudication on the merits with due expedition”).

As noted, applicants do not address these issues. See App. 6-30. Instead,

they principally argue that the district court erred in denying a preliminary

injunction, see id. at 14-27, but this Court is not a court of error correction, see U.S.

Sup. Ct. R. 10. On this basis alone, therefore, their application should be denied.

But as discussed below, applicants also have not established the remaining
 14

requirements for emergency injunctive relief.

II. Applicants Have Not Shown That They Are Indisputably Entitled To
Relief.

Applicants have not shown that it is indisputably clear that they would

prevail on appeal to this Court. This Court has not addressed the validity of laws,

like the Act, that restrict the manufacture, sale, or possession of assault weapons or

LCMs. And as noted supra p. 11, lower courts are almost uniform in rejecting

Second Amendment challenges to such laws since Bruen. For this reason, the

application should be denied. See Hobby Lobby, 568 U.S. at 1403 (right to relief not

indisputably clear where Court had not previously addressed issues raised in

application).

Nor have applicants shown that it is indisputably clear that they will prevail

under the two-step test developed in Bruen. At the first step of that test, applicants

bear the burden of showing that assault weapons and LCMs are “bearable arms” in

“common use today for self-defense.” Bruen, 142 S. Ct. at 2132, 2134 (cleaned up).

If they satisfy that burden, then at the second step, the government “must

demonstrate that the regulation is consistent with this Nation’s historical tradition

of firearm regulation.” Id. at 2126. At either step, applicants’ right to relief is not

indisputably clear.

A. It is not indisputably clear that the Act regulates conduct

protected by the Second Amendment.

To satisfy their burden at step one, applicants must prove that the regulated

items fit within the category of “bearable arms” that are presumptively protected by
 15

the Second Amendment. Bruen, 142 S. Ct. at 2132. Bruen reiterated that the

Second Amendment right “‘is not unlimited.’” Id. at 2128 (quoting District of

Columbia v. Heller, 554 U.S. 570, 626 (2008)). On the contrary, it “extends only to

certain types of weapons.” Heller, 554 U.S. at 623; see also id. at 626 (no “right to

keep and carry any weapon whatsoever in any manner whatsoever and for

whatever purpose”). Namely, the Amendment protects firearms that are

“commonly used” for self-defense. Bruen, 142 S. Ct. at 2138; see also id. at 2132

(Amendment protects only “instruments that facilitate armed self-defense”);

McDonald v. City of Chi., 561 U.S. 742, 749-50 (2010) (“[T]he Second Amendment

protects the right to keep and bear arms for the purpose of self-defense.”).

Accordingly, firearms that do not fit within that category, such as “weapons that are

most useful in military service—M-16 rifles and the like—may be banned.” Heller,

554 U.S. at 627.

1. To begin, it is not indisputable that applicants will satisfy their step-

one burden with respect to the LCM restrictions because LCMs are accessories, not

“arms,” and thus are not within the scope of the Second Amendment. As a

historical matter, the term “arms” referred to weapons and excluded related

accessories like ammunition or ammunition containers, which were referred to as

“accoutrements.” Heller, 554 U.S. at 581 (citing 1773 edition of dictionary defining

“arms” as “[w]eapons of offence, or armour of defence”); Ocean State Tactical, 2022

U.S. Dist. LEXIS 227097, *33 (from Founding through Reconstruction, “[t]he word

‘Arms’ was a general term for weapons such as swords, knives, rifles, and pistols,
 16

but it did not include ammunition, ammunition containers, flints, scabbards,

holsters, or ‘parts’ of the weapons such as the trigger, or a cartridge box”); 7th Cir.

Doc. 15 at A522 (common phrase “arms and accoutrements” distinguished weapons

from items that stored ammunition); id. at A538 (compiling examples of this

distinction and explaining that “in literally hundreds of cases, ‘arms’ and

‘accoutrements’ are treated as separate categories of military gear”).

In fact, there is ample historical evidence that, during the Founding era and

Reconstruction, cartridge cases and boxes were “viewed as accoutrements,” not

“arms.” 7th Cir. Doc. 15 at A529-30; see also id. at A531-36 (collecting historical

examples of cartridge boxes being considered “accoutrements”). Because LCMs, like

cartridge cases and boxes, “are containers which hold ammunition,” 7th Cir. Doc. 15

at A492, it is not indisputable that they are “arms” within the meaning of the

Second Amendment. E.g., id.; see also Ocean State Tactical, 2022 U.S. Dist. LEXIS

227097, *31 (“LCMs, like other accessories to weapons, are not used in a way that

‘cast[s] at or strike[s] another.’”) (quoting Heller, 554 U.S. at 581); 7th Cir. Doc. 37-7

at A496 (“Because a [LCM] is not a required component for a firearm to operate, it

is characterized as an accessory by the industry.”).

2. Even if LCMs indisputably were “arms,” applicants have not shown

that it is indisputable that assault weapons or LCMs are commonly used for self-

defense. To satisfy their step-one burden, applicants rely on a handful of sources

providing ownership and manufacture estimates for varying categories of firearms

and accessories. App. 7-10. Much of this evidence was not before the district court,
 17

however, further demonstrating that the evidentiary record is inadequate to

warrant emergency relief. See Appx. 150-56; Docs. 50-1 through 50-3; see also, e.g.,

Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 486 n.3 (1986) (Court

will not consider “facts not part of the record”).

This evidence also is insufficient for several reasons. For starters, it is not

probative of the relevant question: whether the instruments regulated by the Act

are commonly used for self-defense. Bruen, 142 S. Ct. at 2132, 2138; see also supra

p. 15. Rather, as applicants admit, their evidence purports to show commonality of

manufacture, sale, and ownership for any lawful purpose. E.g., App. 6-8. But this

proves nothing about whether assault weapons and LCMs are commonly used for

self-defense.

And even if relevant, applicants’ evidence—primarily online studies and news

articles—is unreliable and otherwise flawed. Applicants rely heavily on the claim

that 24 million Americans have, at some point, owned “AR-15 or similar rifles” for

lawful purposes. App. 7. This estimate, however, comes from an unpublished, non-

peer-reviewed paper recounting an online survey that does not disclose its sources

of funding or measurement tools, ibid. (citing William English, 2021 National

Firearms Survey: Updated Analysis Including Types of Firearms Owned (May 13,

2022)), and is contradicted by industry and government data showing that only 6.4

million gun owners (less than 8% of the 81 million gun owners in the United States

and 2% of all Americans) possess assault weapons, Doc. 57-7 ¶ 27.7 Several of

7 One of the expert reports Naperville submitted noted that while there are
approximately 24.4 million assault weapons (out of an estimated 461.9 million
 18

applicants’ other sources also do not address whether each of the regulated

instruments is commonly used for self-defense and instead provide ownership or

manufacturing statistics. E.g., App. 7-8 (citing Washington Post survey for

proposition that “6% of American adults . . . own an AR-15-style rifle,”

Congressional Research Service Study indicating that “in 2020 alone, 2.8 million

AR- or AK-type rifles were introduced into the U.S. civilian gun stock,” and trade

industry survey stating that AR-platform rifles were “nearly half of all rifles

produced in 2018 and nearly 20% of all firearms . . . sold in 2020”).

Applicants next contend that “AR-platform rifles are used extremely rarely in

crime,” App. 9, but these statistics are unhelpful because they also offer no insight

into whether assault weapons are commonly used for self-defense. And they

overlook the evidence that these firearms are disproportionately used in high-

fatality incidents. Doc. 57-7 ¶ 12 (“62% of all high-fatality mass shooting deaths”

from 2019 to 2022 “involve[ed] assault weapons”). And another of applicants’

sources confirms that assault weapons are not commonly used for self-defense,

indicating that handguns—not assault weapons—accounted for the large majority

of defensive firearms use. English, supra p. 17, at 10-11 (cited at App. 10-11).

According to the paper, only 13% of incidents of self-defense with guns involve rifles

of any kind. Ibid. And because the paper does not distinguish among types of

rifles, it is unclear whether any of this 13% includes weapons restricted by the

firearms) in circulation, they are owned by only 6.4 million Americans. Doc. 57-7 ¶
24, n.21.
 19

Act. Ibid.

For LCMs, applicants cite an estimate that 150 million magazines with a

capacity greater than 10 rounds are “owned by law-abiding American citizens.”

App. 9. But this estimate was proffered by a declarant who provided no information

on how he reached that number. Appx. 184. Nor do applicants make any attempt

to explain how these statistics, which use undefined and otherwise vague terms,

line up with the items regulated by the Act. See Del. State Sportsmen’s Ass’n, 2023

U.S. Dist. LEXIS 51322, *13 (plaintiffs failed to carry burden at first step of Bruen

without evidence that “assault pistols” as defined by Delaware statute are in

common use). For example, they cite an online survey in which 48% of respondents

reported “own[ing] a handgun or rifle magazine that holds more than 10 rounds,”

English supra p. 17 at 22 (cited at App. 10-11), overlooking that the Act does not

prohibit the manufacture or sale of handgun magazines between 10 and 15 rounds,

see 720 ILCS 5/24-1.10(a).

3. In addition to applicants’ failure to demonstrate that assault weapons

or LCMs indisputably are in common use for self-defense, defendants also presented

evidence that these instruments are designed for offensive, militaristic use rather

than self-defense. E.g., Bruen, 142 S. Ct. at 2134 (handguns protected by the plain

text because they are “in common use today for self-defense”) (cleaned up); Heller,

554 U.S. at 627 (“weapons that are most useful in military service—M-16 rifles and

the like—may be banned”). These instruments derive from rifles and magazines

designed for the military with features that “increase the effectiveness of killing
 20

enemy combatants in offensive battlefield situations.” Doc. 57-5 ¶ 25; see also 7th

Cir. Doc. 15 at A596 (“The lineage of high capacity detachable magazines can be

traced directly to a military heritage.”); Doc. 57-4 ¶ 35 (military origin is “featured

heavily in [their] marketing to the civilian public”). Indeed, the AR-15 models in

circulation today trace their origin to rifles designed in the 1950s for use by the

American military. Doc. 57-4 ¶ 25; 7th Cir. Doc. 37-9 at A585-87. Following field

tests in Vietnam in the early 1960s, which demonstrated the potency of these rifles

on the battlefield, the Army adopted the AR-15 as a combat rifle, rechristening it

the M-16. Doc. 57-4 ¶¶ 26-32.

Not only do assault weapons and LCMs derive from military-grade weaponry,

their features render them uniquely suitable as weapons of war but not commonly

used or suitable for personal self-defense. Assault weapons are designed to allow

high-velocity rounds to be fired at “a high rate of delivery” and “a high degree of

accuracy at long range.” Doc. 57-6 ¶ 14 & n.5; accord Doc. 57-4 ¶ 39. But these

features are unnecessary in the civilian self-defense context, where “most

confrontations involving gunfire are at close range,” and therefore do not require

the long-distance accuracy of assault weapons. Doc. 54-4 ¶ 59; ibid. (“most armed

defense takes place within 3-7 yards”); 7th Cir. Doc. 15 at A598 (“Home defense

and/or self-defense situations are rarely, if ever, lengthy shootouts at long ranges

with extensive exchanges of gunfire.”). In fact, assault weapons are inherently

dangerous in “a home defense scenario” because they “pose a serious risk of over-

penetration in most home construction materials.” 7th Cir. Doc. 15 at A598-99.

 21

Firing an assault weapon in close quarters thus poses “substantial risks to

individuals in adjoining rooms, neighboring apartments or other attached dwelling

units.” Id. at A599. And as compared with handguns, assault weapons produce

much larger cavities in the body, making them especially catastrophic for children,

given the relative proximity of vital organs in their smaller bodies. Doc. 57-6 ¶¶ 32-

35.

Similarly, LCMs’ round capacity is not useful for self-defense. 7th Cir. Doc.

15 at A600 (“an abundance of ammunition” is no substitute for “weapons

familiarization and shot placement”). As studies examining “armed citizen”

incidents have confirmed, “the average number of shots fired in self-defense was 2.2

and 2.1, respectively.” Kolbe v. Hogan, 849 F.3d 114, 127 (4th Cir. 2017) (en banc),

abrogated on other grounds by Bruen, 142 S. Ct. 2111; see also Hanson, 2023 U.S.

Dist. LEXIS 68782, *30 (relying on the “2.2 bullets per incident figure” when

denying preliminary injunction) (citing Robert J. Spitzer, Gun Accessories and the

Second Amendment, 83 J.L. & Contemp. Probs. 331, 244-45 (2020)). Smaller

magazines, moreover, are preferable for self-defense purposes: “the physical

size/profile of the shorter magazine is easier to carry, shoot and conceal.” Doc. 57-5

¶ 23. This is why the most “respected,” “popular,” and “effective self-defense

firearms,” like the “Model 1911” and “Sig P938,” are handguns built to function with

magazines that hold 15 or fewer rounds. Ibid.

In fact, it is “widely accepted” that handguns and shotguns, which remain

legal to manufacture and sell in Illinois, are preferable for self-defense. Doc. 57-5 ¶
 22

21; see also, e.g., Doc. 57-4 ¶ 61 (“shotguns and 9mm pistols are generally

recognized as the most suitable and effective choices for armed defense”); Doc. 57-7

¶ 25 (between 2000 and 2021, “only 1 incident out of 406” active shootings “involved

an armed civilian intervening with an assault weapon,” whereas 12 incidents

involved the defensive use of handguns).

4. Finally, not only do their characteristics make AR-15s and other,

similar assault weapons poorly suited for self-defense, they make them as effective

on the battlefield (if not more so) as automatic weapons like the M-16, which this

Court deemed permissible to ban. Heller, 554 U.S. at 627; see also, e.g., Doc. 57-4 ¶

33 (Army’s 2008 Field Manual stressed that semiautomatic fire is “the most

important firing technique during fast-moving modern, combat,” in part because it

is “devastatingly accurate”) (cleaned up); Doc. 57-5 ¶ 26 (semiautomatic is “the

mode that is most often deployed in battle to efficiently target and kill enemy

troops” and is viewed by Special Forces trainers as “the preferred and most lethal

setting in most wartime scenarios”). In fact, the most commercially successful

weapons regulated by the Act—AR-15 rifles—are M-16s in every way except one:

the ability to toggle between semiautomatic and automatic fire. Doc. 57-11 ¶ 55

(“The military M-16 and the civilian AR-15 are closely related.”); 7th Cir. Doc. 15 at

A604 (civilian AR-type rifles “retain the identical performance capabilities and

characteristics (save full automatic capability) as initially intended for use in

combat” and are not less dangerous or lethal).

In short, applicants must demonstrate that it is indisputably clear that

 23

assault weapons and LCMs are in common use for self-defense to be protected by

the Second Amendment’s plain text. Given applicants’ lack of relevant evidence, on

the one hand, and the substantial evidence showing that assault weapons and

LCMs are offensive, militaristic weapons not suitable for self-defense, on the other,

applicants cannot meet this burden and certainly have not done so in this

application.

B. It is not indisputably clear that the Act is inconsistent with the

Nation’s history of regulating firearms.

1. Even if applicants had shown that the Second Amendment’s plain text

applies to assault weapons or LCMs, their application should be denied because

they did not show that the State indisputably will be unable to satisfy its burden at

the second step of the Bruen test. As explained, the Second Amendment permits

the regulation of arms in common use for self-defense when the government can

show the regulation is “consistent with the Nation’s historical tradition” by

demonstrating that it is analogous to historical regulations. Bruen, 142 S. Ct. at

2130. To determine whether a historical regulation is an appropriate analogue,

courts must assess “whether the two regulations are relevantly similar.” Id. at 2132

(cleaned up).

Bruen acknowledged that, although some historical analogies are

“straightforward,” others are not “simple to draw.” Id. at 2130, 2132. This is

because “[t]he regulatory challenges posed by firearms today” are not the same as

those that “preoccupied the Founders in 1791 or the Reconstruction generation in

1868.” Id. at 2132. Yet, the Court recognized, the Second Amendment must “apply
 24

to circumstances beyond those . . . anticipated” during the Founding era and

Reconstruction. Ibid. To resolve the difficulties in applying historical evidence to

circumstances unanticipated by previous generations, courts should apply a “more

nuanced approach” to analogical reasoning in cases involving “unprecedented

societal concerns or dramatic technological changes.” Ibid. Also, “a regular course

of practice can liquidate & settle the meaning of disputed or indeterminate terms &

phrases in the Constitution.” Id. at 2136 (cleaned up).

2. Because the Act regulates instruments that would not exist without

significant advancement in firearms technology and have generated unprecedented

public-safety concerns, application of the “more nuanced” approach is appropriate

here. See Hanson, 2023 U.S. Dist. LEXIS 68782, *46 (LCMs reflect dramatic

technological changes and pose unprecedented societal concerns); Or. Firearms,

2022 U.S. Dist. LEXIS 219391, *32-34 (same). During the Founding era, Americans

typically owned muskets for militia service and fowling pieces to hunt birds and

control vermin. Doc. 57-8 ¶ 15. Single-shot, muzzle-loading firearms remained the

standard weapon up to and including the Civil War. Doc. 57-10 ¶¶ 43-44; see also

id. ¶¶ 35-38 (“experimental, multi-shot guns” in existence were flawed curiosities

that were dangerous to the shooter, highly unusual, and, in most instances, “never

advanced beyond the prototype stage”) (cleaned up). Reliable rifles capable of firing

more than one round, such as the 1866 Winchester rifle, did not appear in

significant numbers until after the Civil War, and even then lacked semiautomatic

capabilities. Id. ¶ 45. Modern technological advancements have allowed for the
 25

near-instantaneous reloading of an assault weapon, making it materially different

than these weapons. Doc. 57-6 ¶ 28. Likewise, the destructive potential of assault

weapons is more significant than the Thompson submachine gun, handguns,

muskets, and hunting rifles. Id. ¶¶ 29, 32; see also Doc. 57-8 ¶ 54 (danger posed by

semiautomatic rifles “is intrinsically different from past weaponry”).

3. The Act also responds to unprecedented societal concerns about lone

shooters equipped with assault weapons and LCMs murdering dozens of people in

minutes, if not seconds, and bringing entire communities to a halt. The first known

mass shooting by a single individual resulting in 10 or more deaths occurred in

1949; it took 17 years (until 1966) for another comparably lethal shooting to occur,

another 9 (to 1975) before the third such shooting, and 7 more before the fourth (in

1983). Doc. 57-7 ¶¶ 18-19. But in recent years—and especially since the expiration

of the federal assault weapons ban in 2004—the frequency and cumulative lethality

of mass shootings has increased dramatically. See id. ¶ 21 (describing six-fold

increase in shootings with double-digit fatalities since 2004).

According to one estimate, “an assailant with an assault rifle is able to kill

and injure twice the number of people compared to an assailant with a non-assault

rifle or handgun.” Doc. 57-4 ¶ 40. And when used in combination with LCMs,

“semiautomatic rifles cause an average of 299 percent more deaths and injuries

than regular firearms.” Doc. 57-8 ¶ 56; Doc. 57-7 ¶ 15 (average death toll for

incidents involving LCMs is 11.5 fatalities per shootings, as compared with 7.3

fatalities without LCMs). Assault weapons also pose a “disproportionate risk to law
 26

enforcement”: in 2016 and 2017, 25% of law enforcement officers slain in the line of

duty were killed with assault weapons. Doc. 57-4 ¶ 52; see also, e.g., Doc. 57-8 ¶ 54

(threat to law enforcement is “modern phenomenon”). Under a “more nuanced

approach,” these changes matter when engaging in Bruen’s historical analysis. 142

S. Ct. at 2132.

4. Applying this approach, it is not indisputably clear that applicants will

succeed on the merits of their claim. The Act is “relevantly similar” to historical

regulations with respect to dangerous and unusual weapons. See Bruen, 142 S. Ct.

at 2128 (recognizing longstanding tradition of regulating dangerous and unusual

weapons); Heller, 554 U.S. at 627 (same). The origins of this tradition pre-date the

Founding era. E.g., 4 William Blackstone, Commentaries on the Laws of England,

148-49 (1769) (“riding or going armed with dangerous or unusual weapons is a

crime against the public peace, by terrifying the good people of the land”). For

instance, a 1686 East New Jersey law restricted concealed carrying of “any pocket

pistol, skeines, stilettoes, daggers or dirks, or other unusual or unlawful weapons,”

1686 N.J. 289, 289-90, ch. 9; see Doc. 57-10 ¶ 81, and other colonies regulated

dangerous and unusual weapons like trap guns, clubs, and knives. E.g., Doc. 57-10

¶¶ 81-85; see also, e.g., 1750 Mass. Acts 544, ch. 17, § 1 (cited at Doc. 57-10, Ex. E);

Records of the Colony of New Plymouth in New England, Boston 230 (1671) (trap

guns) (Doc. 57-10, Ex. F); 1642 N.Y. Laws 33 (outlawing the drawing of knives).

During the Early Republic and Founding eras, legislatures continued to

impose restrictions on specific dangerous or unusual weapons. See Doc. 57-10 ¶¶

 27

72, 76, 79 (describing restrictions on “objectional” and “vicious” weapons like clubs

in response to use by criminals and as fighting instruments) (cleaned up); id. ¶ 75

(compiling six state laws enacted between 1750 and 1799 restricting the carrying of

weapons like clubs); see also, e.g., A Collection of the Statutes of the Parliament of

England in Force in the State of North-Carolina 60, ch. 3 (1792) (cited at Doc. 57-11

¶ 8 n.5). And as homicide rates increased in the 19th century, in part due to knife-

dueling, so did laws restricting the use, sale, and possession of Bowie knives. Doc.

57-10 ¶¶ 63, 69; Doc. 57-8 ¶ 24; see also Doc. 57-10 ¶¶ 64-68 (discussing state court

decisions upholding convictions under these regulations).

Likewise, advancements in firearms technology during the 19th century

rendered pistols more effective for criminal purposes, prompting states to enact

prohibitions on carrying pistols, revolvers, and other concealable weapons. E.g.,

Doc. 57-10 ¶ 81; Doc. 57-8 ¶¶ 16-17, 25-28. In fact, by the turn of the century, there

was near unanimity among the States in prohibiting or severely restricting

concealable firearms and other weapons, Doc. 57-8 ¶ 28, a practice that has since

been deemed constitutional, e.g., Bruen, 142 S. Ct. at 2128.

The historical tradition of regulating firearms in response to technological

advancements and criminal misuse continued into the 20th century. During World

War I, advancements in weapons technology led to the invention of hand-held

semiautomatic and automatic weapons. Doc. 57-10 ¶¶ 14-15. Like the 18th and

19th century technological advancements, these new weapons proliferated, and

“their uniquely destructive capabilities” began to impact civilian life through

 28

criminal violence. Id. ¶ 15. The Thompson submachine gun and the Browning

Automatic Rifle, in particular, were used in high-profile crimes. Id. ¶¶ 14-15, 21-22.

And although these weapons were used “relatively infrequently by criminals

generally, . . . when they were used, they exacted a devastating toll and garnered

extensive national attention.” Id. ¶ 15.

As in prior eras, States responded: between 1925 and 1934, “at least 32

states enacted anti-machine gun laws.” Id. ¶ 22. Seven of these laws banned both

automatic and semiautomatic weapons. Id. ¶ 27 & Ex. B. States also regulated

removable magazines and magazine capacity: between 1917 and 1934, 23 States

enacted regulations on “ammunition magazines or similar feeding devices, and/or

round capacity.” Id. ¶ 31. In 1932, Congress took similar action, banning machine

guns in the District of Columbia. Id. ¶ 23. Two years later, Congress enacted the

National Firearms Act, which severely restricted the sale, transfer, and transport of

machine guns and other firearms associated with criminal violence, like short-

barreled shotguns and rifles. Id. ¶ 24. That statute was upheld over challenges to

the effective ban on short-barreled shotguns in United States v. Miller, 307 U.S.

174, 178 (1939), and its effective ban on machine guns was recognized as

permissible in Heller, 554 U.S. at 624, 627.

6. By prohibiting the manufacture and sale of weapons and magazines

increasingly used in the deadliest mass shootings, the Act comfortably fits within

this pattern of regulation in response to new forms of violent crime perpetrated with

technologically advanced weapons. The public safety justifications underlying the

 29

Act are nearly identical to those that prompted 18th, 19th, and 20th century

legislatures to regulate categories of weapons associated with an increase in

homicides attributable to specific weapons and other criminal misuse. The

incremental expansion of firearm regulation over the course of three centuries, as

well as the corresponding judicial approval of such measures, has “liquidate[d] &

settle[d]” the meaning of the Second Amendment to allow for such restrictions.

Bruen, 142 S. Ct. at 2136.

The Act is also “relevantly similar,” id. at 2130, to historical regulations in

that it imposes, at most, a minimal burden on an individual’s right to armed self-

defense. E.g., Del. State Sportsmen’s Ass’n, 2023 U.S. Dist. LEXIS 51322, *37

(assault weapon and LCM restrictions impose “slight” burden on self-defense). The

instruments regulated by the Act are best suited for offensive combat: their

defining characteristics are unnecessary (and often counterproductive) for self-

defense, with the result that handguns and shotguns are preferred for self-defense

scenarios. Supra pp. 20-22. And because the Act preserves access to a vast array of

handguns, rifles, and shotguns, it is consistent with its historical predecessors in

that it imposes tailored restrictions on the dangerous and unusual instruments

causing harm to the public while retaining the ability for Americans to own and

carry weapons for self-defense.

7. For their part, applicants attempt to isolate individual laws and

distinguish them by claiming that none “is analogous to a categorical ban of

commonly possessed arms.” App. 21-25. Initially, as discussed, the relevant

 30

question is not whether the assault weapons and LCMs the Act restricts are

commonly possessed but whether they are commonly used for self-defense. Supra p.

17. In any event, applicants have not shown that it is indisputable that the Act

restricts “commonly possessed arms” when only a small percentage of gun owners

(and an even smaller percentage of Americans) possess the restricted instruments.

Supra pp. 17-18 & n.7. Nor can applicants overcome the evidence, supra pp. 26-28,

that the Act is consistent with the historical tradition—beginning with restrictions

on knives, pistols, and other melee weapons and culminating in bans on machine

guns and other dangerous firearms—demonstrating that categorical bans are

contemplated by the Second Amendment. Each of these categorical restrictions,

including the materially indistinguishable state and federal restrictions of the early

20th century, is permissible under that Amendment. Bruen, 142 S. Ct. at 2128

(carriage restrictions); Heller, 554 U.S. at 624, 627 (machine gun ban).

And to the extent there is any difference in scope between Founding- or

Reconstruction-era regulations and the Act, that is because dramatic technological

and societal shifts have occurred in the interim. Supra pp. 24-26. At bottom, these

historical regulations and the Act share the same justifications (protecting the

public from new forms of violence) and impose the same minimal burden on self-

defense (by restricting only those weapons that were causing this violence while

leaving other means of self-defense available).

8. Applicants further contend that any 20th-century evidence is

irrelevant under Bruen. App. 21. But as explained, supra pp. 24-28, 20th-century
 31

evidence is relevant to the historical inquiry both to show that the regulated items

reflect “dramatic technological changes” that have caused “unprecedented societal

concerns,” Bruen, 142 S. Ct. at 2132, and as evidence of “a regular course of practice

[that] can liquidate & settle the meaning of disputed or indeterminate terms &

phrases in the Constitution,” id. at 2136 (cleaned up). Here, the historical evidence

confirms that the Act responds to technological changes and societal concerns and is

also part of a regular course of practice of restricting dangerous and unusual

weapons. It is, therefore, appropriate for courts to consider the early 20th-century

restrictions, both because Heller stated that those restrictions were obviously

constitutional, 554 U.S. at 624 (deeming suggestion that federal restrictions on

machine guns “might be unconstitutional” “startling”), and because the Act’s

restrictions on assault weapons and LCMs are consistent with analogues from the

18th and 19th centuries, Bruen, 142 S. Ct. at 2136, 2154 n.28 (declining to consider

late 19th and early 20th century evidence because it “contradict[ed] earlier

evidence” that overwhelmingly established a contrary tradition).

9. Applicants next assert that assault weapons and LCMs are not

“dangerous and unusual” because popular weapons cannot be “unusual.” App. 16-

17. As explained, supra pp. 17-18 & n.7, applicants have not shown that it is

indisputable that these instruments are owned by more than a small percentage of

Americans. In any event, as discussed supra pp. 26-29, historical evidence shows

that weapons only came to be considered dangerous and unusual—thus requiring a

regulatory response—after their widespread use created new societal problems. See
 32

also State v. Huntly, 25 N.C. 418, 422 (1843) (rejecting argument “that a double-

barrelled gun, or any other gun, cannot in this country come under the description

of ‘unusual weapons’” just because many “in the community . . . own[ed] and

occasionally use[d] a gun”). The Act, which was enacted in response to the modern

problem of assault weapons and LCMs being used in mass shootings, adheres to

that historical tradition.

10. Finally, applicants contend that early laws requiring “male citizens of

eligible age” to appear for militia service “with common weapons and standard

ammunition” demonstrate that the Act’s restrictions are inconsistent with the

country’s historical tradition. App. 27. But the government’s authority to organize

the militia is a separate question from the scope of the individual right to keep and

bear arms for self-defense. As both Heller and Bruen recognized, the right to armed

self-defense is “unconnected to militia service.” Heller, 554 U.S. at 610; see also

Bruen, 142 S. Ct. at 2127 (individual Second Amendment right “does not depend on

service in the militia”); Heller, 554 U.S. at 627 (recognizing that a militia today

might “require sophisticated arms that are highly unusual in society at large” but

also that such weapons “may be banned”). Applicants, therefore, have failed to

show that it is indisputably clear that their Second Amendment challenge will

prevail.

III. No Critical Or Exigent Circumstances Exist That Would Warrant An

Injunction Pending Appeal.

1. Finally, applicants have not shown that they face the “most critical

and exigent circumstances” that would entitle them to an injunction pending their
 33

interlocutory appeal. Brown, 533 U.S. at 1303 (cleaned up). Indeed, their conduct

suggests otherwise. Despite labeling their application to this Court as an

emergency, they waited 11 days from the district court’s denial of their preliminary

injunction motions to seek an injunction pending appeal in that court, another 5

days to seek that relief in the Seventh Circuit after the district court denied their

request, and another 8 days to seek emergency relief in this Court after the Seventh

Circuit denied their request, even though their emergency application is a nearly

word-for-word reproduction of their opening merits brief in the Seventh Circuit

(which they filed before the Seventh Circuit denied their motion for injunction

pending appeal). Appx. 3, 36, 86, 164; see also 7th Cir. Doc. 27. Nor have

applicants requested that the Seventh Circuit expedite their appeal, which, as noted

supra p. 13, is proceeding without undue delay. Thus, any contention that their

application presents exigent circumstances warranting this Court’s intervention

rings hollow.

2. Moreover, applicants have not shown why this Court’s intervention is

necessary to avoid impending irreparable harm. First, applicants note that the

temporary loss of First Amendment freedoms may constitute irreparable harm,

contending that this principle should extend to the Second Amendment as well.

App. 27 (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67

(2020)). But in recognizing that this Court has not applied this principle outside the

First Amendment context, applicants again demonstrate that their right to relief is

not indisputably clear. See Fenner v. Boykin, 271 U.S. 240, 243 (1926) (stating
 34

general rule that an injunction may issue to protect “constitutional rights,” but only

when there is a “danger of irreparable loss”). Nor have justices of this Court applied

this presumption to grant applications for injunctions pending appeal claiming First

Amendment violations. E.g., Lux, 561 U.S. at 1307-08 (denying application

claiming deprivation of First Amendment right to political expression); Brown, 553

U.S. at 1302 (denying application claiming Establishment Clause violation).

Applicants also cite Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), for

the proposition that a probable violation of Second Amendment rights

presumptively establishes irreparable harm. App. 28. But in Ezell, an ordinance

required firing range training “as a prerequisite to lawful gun ownership, yet at the

same time prohibit[ed] all firing ranges in the city.” 651 F.3d at 690 (cleaned up).

Because the ordinance made it “impossible” to qualify for gun ownership, it

burdened the Second Amendment’s “central component”—“the right to possess

firearms for protection”—and the Seventh Circuit thus presumed that

“[i]nfringements of this right [could not] be compensated by damages.” Id. at 698-

99. By contrast, the Act does not preclude anyone from purchasing any number of

handguns, shotguns, or other weapons for self-defense, or continuing to possess

assault weapons or LCMs purchased prior to its effective date.

Applicants further allege that the gun store and its owner will suffer

financial loss. App. 28-29. As support, they rely on Cavel International, Inc. v.

Madigan, 500 F.3d 544, 545 (7th Cir. 2007), but there, a horsemeat exporter

challenged a statute that would have outlawed its entire business and made its
 35

failure “a virtual certainty.” And the defendants were “state officials sued in their

official capacities” from whom the exporter “could not obtain monetary relief.” Id.

at 546. Here, the gun store does not exclusively sell assault weapons and LCMs; it

sells firearms not covered by the Act and offers gunsmithing and firearms training

services.8 Nor did applicants’ declaration make clear that the store would close

during this appeal; it gave no estimate of how long the business could survive.

Appx. 185-86. Applicants also have not even attempted to explain why a damages

award, should they obtain one, could not make the store’s owner whole. Doc. 48 at 7

(seeking compensatory damages); Sampson v. Murray, 415 U.S. 61, 90 (1974)

(“[T]he temporary loss of income, ultimately to be recovered, does not usually

constitute irreparable injury.”).

3. Finally, the balance of equities and public interest also favor denying

the application. As discussed, applicants have not shown that their inability to

purchase or sell a narrow category of firearms—assault weapons and LCMs—will

irreparably harm them. By contrast, the Act’s restrictions on assault weapons and

LCMs promote a compelling interest in protecting the public and saving lives. Doc.

57-6 ¶¶ 31-35 (assault weapons cause wounds that are more destructive than other

firearms); Doc. 57-7 ¶ 37 (assault weapon and LCM bans resulted in 72% decrease

in deaths from mass shootings); Doc. 57-9 ¶¶ 33-40 (assault weapons cause high

mortality rate as compared to handguns); Doc. 63 at 33 (finding that Act furthered

8 Law Weapons & Supply, Online Store, http://bit.ly/3ZTimoU (last visited May 6,
2023); Law Weapons & Supply, Law Weapons In-House Gun-Smithing Service,
https://bit.ly/3Fby3jk (last visited May 6, 2023); Law Weapons & Supply, Law
Weapons Training Courses, https://bit.ly/3ZBbtJ8 (last visited May 6, 2023).
 36

“protection of public safety,” which was “unmistakably a public interest”) (cleaned

up); see also N.Y. State Rifle & Pistol Ass’n. v. Cuomo, 804 F.3d 242, 262 (2d Cir.

2015) (assault weapons “are disproportionately used in crime,” including “mass

shootings” and murders of law enforcement officers); Ocean State Tactical, 2022

U.S. Dist. LEXIS 227097, *46 (public interest in prohibiting LCMs “could not be

more undeniably compelling”). All told, the applicants have not shown, and cannot

show, that they meet the heightened standard to obtain an injunction pending

appeal.
 37

CONCLUSION

For these reasons, the application should be denied.

Respectfully submitted,

KWAME RAOUL
Illinois Attorney General
JANE ELINOR NOTZ*
Solicitor General
SARAH A. HUNGER
Deputy Solicitor General
CARSON R. GRIFFIS
Assistant Attorney General
100 West Randolph Street
Chicago, Illinois 60601
(312) 814-5376
[email protected]

*Counsel of Record

MAY 8, 2023