UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMOND M. RUSH, Defendant-Appellant.
No. 23-3256
United States Court of Appeals For the Seventh Circuit
March 10, 2025
Before JACKSON-AKIWUMI, LEE, and KOLAR, Circuit Judges.
KOLAR, Circuit Judge.
I. Background
In August 2022, Rush was charged by superseding indictment with one count of possessing an unregistered firearm in violation of
Rush moved to dismiss the indictment, arguing that
Rush then entered a conditional guilty plea, reserving the right to challenge the denial of his motion to dismiss. He was convicted and sentenced to 30 months’ imprisonment. Rush now appeals the district court‘s denial of his motion to dismiss.
II. Discussion
We review questions concerning the constitutionality of a federal statute de novo. United States v. Cote, 504 F.3d 682, 685 (7th Cir. 2007). The single issue on appeal is whether
Originally passed by Congress in 1934, the NFA in its early form required that individuals register certain firearms, including some with short barrels. Miller, 307 U.S. at 175 n.1. Today,
Rush argues
Rush asserts that early Supreme Court precedent, United States v. Miller, does not control and that
A. United States v. Miller
In United States v. Miller, the defendants were charged with unlawfully transporting an unregistered firearm—a shotgun with a barrel less than 18 inches in length—in interstate commerce in violation of the NFA. 307 U.S. at 175. After examining early colonial laws that regulated musket length (e.g., muskets must “not [be] less than three feet, nine inches“), the Supreme Court determined that the Second Amendment does not guarantee a right to possess an unregistered, short-barreled shotgun. Id. at 175–76, 179–80, 183. Thus, Miller upheld the challenged NFA provision.
The government argues that Miller forecloses the relief Rush seeks because Miller upheld the constitutionality of
We have recently reiterated this very principle. In United States v. White, we explained that “the Supreme Court has instructed us to resist invitations to find its decisions overruled by implication.” 97 F.4th 532, 539 (7th Cir. 2024) (citing Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023)). “When a Supreme Court decision is directly controlling, our job is to follow it, leaving to the Court the prerogative of overruling its own decisions.” Id. (cleaned up). This is so even if “intervening decisions have eroded [the precedent‘s] foundation.” Id. (citation omitted). Rush‘s case is no exception.
The rule of law demands we follow binding Supreme Court precedent. 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.” (internal quotations omitted)).
Rush‘s attempt to factually distinguish Miller is unavailing. The fact that Miller involved an unregistered, short-barreled shotgun and Rush was convicted of possessing an unregistered, short-barreled rifle does not control the outcome of this appeal. Both are long guns with shortened barrels, which are dangerous because they are more powerful than traditional handguns yet are easier to conceal. See Bianchi v. Brown, 111 F.4th 438, 451 (4th Cir. 2024). And both involve a characteristic that makes the firearm especially attractive to criminals while adding little—if any—functionality to the firearm for lawful use. Perhaps more importantly, both were regulated under the NFA provisions in effect at the time of the defendants’ convictions—provisions that simply required the registration of the firearms. See generally Bruen, 597 U.S. at 56–57 (contrasting outright bans with fees). We see no reason to cabin Miller‘s holding and read it so narrowly.
In that vein, we understand Miller, and its subsequent treatment through Bruen, to emphasize two distinct features of Second Amendment jurisprudence. 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. Heller, 554 U.S. at 625 (citing Miller); see also Staples v. United States, 511 U.S. 600, 611–12 (1994) (considering “machineguns, sawed-off shotguns, and artillery pieces” as “items the ownership of which would have ... [a] quasi-suspect character.“). 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. Bruen, 597 U.S. at 38 n.9 (citation omitted). Rahimi and Bruen clarify the logic of Miller that onerous restrictions on weapons are distinct from licensing requirements of firearms. Rahimi, 602 U.S. at 699–700 (distinguishing constitutional licensing regulations that presume individuals have a right to carry a firearm from unconstitutional regimes that require applicants make a special showing of need); Bruen, 597 U.S. at 38 n.9 (“[N]othing in our analysis should be interpreted to suggest” registration laws “which often require applicants to undergo a background check or pass a firearm safety course” and do not impose “exorbitant fees” are unconstitutional.).
In sum, Miller “has direct application in [this] case,” and we therefore follow it. See Rodriguez de Quijas, 490 U.S. at 484.2 This
B. Bruen Analysis
In Bruen, the Court analyzed whether a state could require applicants for a public carry gun permit to demonstrate that they had a “special need” for self-protection distinguishable from that of the general community. Id. at 11–13. The Court explained that the Second Amendment‘s protection of the “right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense” extends to carrying “a handgun for self-defense outside the home.” Id. at 8–10. Rush argues that Bruen compels us to find the licensing and taxing requirements of
Bruen set forth a two-step test for evaluating the constitutionality of a statute under the Second Amendment. Id. at 24. The Bruen framework directs us to first answer whether “the Second Amendment‘s plain text covers an individual‘s conduct” (such as possessing, receiving, or carrying a certain firearm within a particular place). Id. If it does, the Constitution presumptively protects that conduct. Id. We must then ask whether the challenged regulation is “consistent with the Nation‘s historical tradition of firearm regulation.” Id. The government bears the burden on the second step. Id.
So, in relation to Rush‘s challenge, we ask (1) whether the text of the Second Amendment covers the possession of an unregistered, short-barreled rifle, and if so, (2) whether
i. Step One
The Second Amendment generally protects the right of “the people” to “keep and bear arms.”
Rush argues that the text of the Second Amendment extends to all “bearable” arms and thus his possession of a short-barreled rifle falls neatly within its ambit. Here, Rush‘s argument is contrary to our own precedent. In Bevis, we confronted this very issue, explaining that “bearable” must mean more than “transportable” or “capable of being held.” See Bevis, 85 F.4th at 1193 (describing how a machine gun is literally a “bearable arm” in that it can be physically “pick[ed] up and carr[ied]” yet is not constitutionally protected (citing Heller, 554 U.S. at 624, 627)). Bruen reaffirmed that “the right [to bear arms] [i]s not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Bruen, 597 U.S. at 21 (quoting Heller, 554 U.S. at 626). Instead, the Second Amendment protects the right of an ordinary, law-abiding citizen to possess a firearm “in common use” for a lawful purpose like self-defense. Id. at 32 (quoting Heller, 554 U.S. at 627). As we discuss in greater detail on Bruen‘s second step, this is supported by “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons....‘” Id. at 21 (quoting Heller, 554 U.S. at 627).
In Bevis, for instance, we concluded that the state had a strong likelihood of success on the merits (as required at the preliminary injunction stage) in showing that its regulation of assault weapons and high-capacity magazines was constitutional because such weapons were not within “the class of Arms protected by the Second Amendment.” 85 F.4th at 1182. In surveying the evolution of Second Amendment jurisprudence, we recognized that the Second Amendment does not protect weapons that are not typically “possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns” and that this “accords with the historical understanding of the scope of the right.” Id. at 1193 (emphasis added) (quoting Heller, 554 U.S. at 625). Here, the majority opinion in Bevis found agreement with the dissent. Id. at 1223 (Brennan, J., dissenting) (restating that Miller means the “Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” (quoting Heller, 554 U.S. at 625)).
Thus, this court—post-Bruen—acknowledged the Supreme Court‘s recognition that short-barreled shotguns fall on the constitutionally unprotected side of the “bearable arms” line because they are not in common use for a lawful purpose—which, at its core, is self-defense. Bevis, 85 F.4th at 1193 (citing Heller, 554 U.S. at 624–25). No intervening Supreme Court case has called Bevis into doubt, and this court has not overruled it.4
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. Indeed, as previewed, long guns with shortened barrels are often considered dangerous because they are “more easily concealable than long-barreled rifles” and unusual because they “have more destructive power than traditional handguns, making them particularly desirable to malefactors and crooks.” Bianchi, 111 F.4th at 451 (citation omitted). Rush argues that short-barreled rifles are in common use today, but he does not specifically connect that alleged common use to a lawful purpose like self-defense. More on that to come.
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
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. We turn
ii. Step Two
Our job in step two is to determine whether
“[T]he search is for a historical regulation that is relevantly similar, not identical.” Bevis, 85 F.4th at 1191 (emphasis in original). Even if the modern-day regulation is not “a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster“—we need not find a historical “twin.” Bruen, 597 U.S. at 30. Then, the question becomes whether the modern and historical regulations “impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified“—in other words, why and how a regulation burdens the Second Amendment right. Id. at 29. Comparing the “[w]hy and how” of past regulations to a challenged one is “central” to the Bruen inquiry. Rahimi, 602 U.S. at 692. When the historical laws “address[ed] particular problems” there is a good chance “contemporary laws imposing similar restrictions for similar reasons” are also permissible. Id. The laws do not need to “precisely match“—the contemporary one must only “comport with the principles underlying the Second Amendment....” Id.
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. 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....” Miller, 307 U.S. at 180. 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....” Id. at 181. While some early laws appear specific to militia members, they are often relevant because the traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes. Bevis, 85 F.4th at 1193 (quoting Heller, 554 U.S. at 624). Thus, many historical analogues concerning regulation of firearms that militia members were directed to keep are instructive (although certainly not dispositive).
There were also colonial and post-colonial laws akin to modern-day registration and taxation requirements. For instance, a 1631 Virginia law required recording “arms and munitions,” and certain colonial “muster” laws required registration of arms into the 1800s.5 Moving well past
Rush recognizes that
As an initial matter, the government is not constrained to only Founding Era laws. While not every time period is weighed equally, Bruen instructs us to consider “historical precedent from before, during, and even after the founding....” Bruen, 597 U.S. at 27. Of course, because “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them[,]” we give considerable weight to the time periods immediately leading up to and during the adoption of the Second Amendment in 1791. Id. at 34 (emphasis in original) (quoting Heller, 554 U.S. at 634–35); see also id. at 81–83 (Barrett, J., concurring) (cautioning against “freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the” Second Amendment).
As we have said, the government points to numerous historical taxation and registration regulations suggesting
Finally, the government asserts that historical analogues exist for regulating dangerous and unusual weapons, like short-barreled rifles. At common law, for example, a person was prohibited from “arm[ing] himself with dangerous and unusual weapons, in such a manner as w[ould] naturally cause a terror to the people.…” State v. Langford, 10 N.C. 381, 383 (1824). “[G]oing armed” laws prohibited “riding or going armed” with “dangerous or unusual weapons” because it disrupted public order and led “almost necessarily to actual violence.” Rahimi, 602 U.S. at 697 (recognizing that prohibitions on going armed existed at English common law and were incorporated into American jurisprudence) (cleaned up). These historic laws mirror the NFA in their purpose. One of the NFA‘s very objectives is “to regulate certain weapons likely to be used for criminal purposes, just as the regulation of short-barreled rifles, for example, addresse[d] a concealable weapon likely to be so used.” United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517 (1992) (plurality opinion).
We turn, as we must, to the “how” and “why” of historical regulations versus the “how” and “why” of
And,
Rush insists that short-barreled rifles are not dangerous and unusual, and that they were not only in common use during the Founding Era but remain common today.10 In support, he cites various secondary sources describing types of short-barreled weapons in use as early as the 1800s in England and during the American Revolution. He also cites statistics that he believes demonstrate the widespread use of short-barreled rifles today. A Bureau of Alcohol, Tobacco, Firearms and Explosives statistic cited by Rush states that there were 532,725 registered short-barreled rifles in the United States in 2021.11
But we have previously rejected this type of commonality reasoning. See Bevis, 85 F.4th at 1198–99 (“[W]e decline to base our assessment of the constitutionality of these laws on numbers alone. Such an analysis would have anomalous consequences.“); see also Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015). In Friedman, we acknowledged that the Thompson submachine gun, for example, was notoriously common in Chicago during the Prohibition era but explained that its popularity did not afford it constitutional immunity from the federal prohibition enacted under the NFA. Id. at 408–09.12 More critically, Rush says nothing of what short- barreled rifles are commonly used for. Second Amendment protection, of course, extends only to those firearms in common use for a lawful purpose like self-defense, not to any prolific firearm. See Rahimi, 602 U.S. at 690 (discussing Second Amendment right as the right to armed “self-defense“); see also Bianchi, 111 F.4th at 460 (applying Bruen, stating, “[j]ust because a weapon happens to be in common use does not guarantee that it falls within the scope of the right to keep and bear arms.“).
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. 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.
We are left with the conclusion that Miller survives Bruen. We also recognize that “the constitutional issues at stake are weighty.” Atkinson v. Garland, 70 F.4th 1018, 1023 (7th Cir. 2023). Therefore, while we meet our duty to address arguments raised directly by the parties, we also deem it appropriate to decide this case on the simple fact that Miller controls. See, e.g., Pantoja v. Portfolio Recovery Assocs., LLC, 852 F.3d 679, 684 (7th Cir. 2017) (deciding case on narrower grounds); Fessenden v. Reliance Standard Life Ins. Co., 927 F.3d 998, 1003 (7th Cir. 2019) (same). The district court correctly held that
III. Conclusion
For the reasons set forth, we AFFIRM.