Second Amendment-related rulings issued from activist Appeals Courts are becoming more and more capricious, as evidenced by a ruling this week from the Seventh Circuit Court of Appeals which declared arbitrarily that short-barreled rifles aren’t used commonly enough to be protected under Bruen.
In the case of The United States v. Rush, on appeal from the United States District Court for the Southern District of Illinois, a three-judge panel (all Biden appointees) issued a 21-page decision affirming the decision of the District Court in denying defendant Rush’s motion to dismiss the superseding indictment.
It’s objectively surprising to read a decision that is so hostile to the Second Amendment. According to the brief, in August 2022, Mr. Rush was charged with one count of possessing an unregistered firearm (an Anderson Manufacturing AR-15 rifle with a 7.5-inch barrel—a short-barreled rifle regulated by the NFA) in violation of 26 U.S.C. §§5841, 5861(d), and 5871.
Mr. Rush moved to dismiss the indictment, arguing that the statute is unconstitutional under the Supreme Court’s 2022 Bruen decision. After the District Court found him guilty, he was sentenced to 30 months of imprisonment.
Reading the decision of the court, it seems inescapable that they are simply ignoring the Bruen decision, and further underscores the necessity of completely disemboweling the NFA (National Firearms Act of 1934).
The court gives lip service to the rule of law, but then evades the very thing they reference: “The rule of law demands we follow binding Supreme Court precedent.”
Relying purely on Miller, they then lay the framework for a decision that is absolutely hostile to the Second Amendment and functionally ignores Bruen:
And, the Supreme Court’s more recent Second Amendment jurisprudence does not reject Miller as Rush suggests, but rather directly engages with it. Bruen, 597 U.S. at 21 (citing Heller, 554 U.S. at 627, quoting Miller, 307 U.S. at 179, for the proposition that “prohibiting the carrying of dangerous and unusual weapons” is “fairly supported by the historical tradition” while the “Second Amendment protects the possession and use of weapons that are in common use at the time.”
With a proverbial straight face, and no supporting evidence, they argue that short-barreled rifles, “…involve a characteristic that makes the firearm especially attractive to criminals while adding little—if any—functionality to the firearm for lawful use.” Oh, yeah, and the archaic NFA prohibits them.
The court makes every effort to conclude that virtually no element of Bruen is applicable in this case, writing, “Bruen‘s holding, however, was not so expansive as to overrule Miller, nor does the test laid out in Bruen call into question Miller’s core holding or continued validity.”
The court embraces the position of the Government (remember this was initially argued under a Biden-controlled ATF) that, “The government, for its part, contends that a short-barreled rifle is not an “arm” within the meaning of the Second Amendment because it is “dangerous and unusual” and therefore falls outside the scope of Constitutional protection.”
It also agrees with the Government that you shouldn’t be complaining because if you just pay your taxes and register your gun, you can own an SBR:
“The government contends that Rush’s claim fails on step one for an additional reason—the NFA’s registration and taxation requirements are not “infringements” on Second Amendment rights. Recall that §5861(d) does not ban short-barreled rifles—it merely establishes a registration and taxation scheme applicable to them.”
Finally, in a callous and dismissive summary, the court asserts:
In any event, we 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. The record does not show such firearms are commonly used by ordinary, law-abiding citizens for a lawful purpose like self-defense. Bruen, 597 U.S. at 32. More precisely, we 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.
This case illustrates a number of important issues:
- A pattern of behavior from inferior courts in simply ignoring the Bruen ruling and effectively thumbing their nose at the superior court
- The inability to apply the ultimate law of the land encoded in the Constitution itself, which states in 27 simple words that “…the right of the People to keep and bear arms shall not be infringed.”
- The necessity of ending the unlawful and unconstitutional infringements of the NFA that illegally taxes and registers firearms, and thus chills the right of the people.
It remains to be seen how the Trump administration will direct the ATF to handle these cases under newly appointed Attorney General, Pam Bondi. High profile members of Congress have already introduced legislation to end the NFA that is slowly receiving more support. President Trump has not yet appointed a director over the ATF, although FBI Director, Kash Patel, is serving as the interim director. As of this writing, there has not been a public statement on the Administration’s posture as it relates to these subjects.
