The Seventh Circuit recently held in Bevis v. City of Naperville, — F.3d — (7th Cir. Nov. 3, 2023), that AR-15s are not “arms” protected by the Second Amendment because they are “almost the same” as machine guns and other weapons “exclusively or predominantly useful in military service” or “reserved to the military.” In so doing, it struck down a district court preliminary injunction against Illinois’ so-called “assault weapons” ban and affirmed other district court denials of such injunctions.
Since the military does not use semiautomatic-only AR-15s precisely because they lack automatic fire capability, the Seventh’s Circuit’s holding is contrived. AR-15s are not exclusively or predominately used in military service, nor are they otherwise reserved to the military—they’re not used at all.
The Second Amendment protects the possession and use of both nonmilitary arms, see Caetano v. Massachusetts, 577 U.S. 411, 412 (2016) (stun guns), and “dual use” arms for home and war, see District of Columbia v. Heller, 554 U.S. 570, 624-25 (2008) (militia arms). It does not protect sophisticated weapons used exclusively by the military in modern warfare. Id. at 627-28. The latter category presumably includes machine guns, id. at 624, 627, and other individually-served (“bearable”) arms such as grenade launchers, anti-tank weapons, and Stinger missiles. These weapons are exclusive (or nearly exclusive) to the military and generally not considered useful for citizen self-defense.[1]
As a simple factual matter, the AR-15 is not a military weapon. While the civilian AR-15 looks like a military M16 or M4, it is neither a machine gun nor does it fire as rapidly as a one. Because the civilian AR-15 lacks automatic-fire capability, the U.S. military does not use it on the battlefield.
Lacking automatic fire capability, the civilian AR-15 is not “most useful” in military service. See Heller, 554 U.S. at 627-28 (“weapons that are most useful in military service—M-16 rifles and the like—may be banned”). The semiautomatic AR-15 is not used in military service at all, and has been sold to citizens for decades.
To force the AR-15 into the unprotected arms category, the Seventh Circuit emphasized its similarity to the military M16. The court found the AR-15 “much more like” the M16 because they look the same (“same core design”), operate the same (“same patented operating system”), and use the same ammunition (having the “same kinetic energy,” “same muzzle velocity,” and “same effective range”). But that’s like saying a Prius is like a Porsche because they both have four wheels, internal combustion engines, and can drive more than 250 miles on a single tank of gas. Regardless of its general similarities to the M16, the civilian AR-15 is not a machine gun, and that’s why the military does not use it.[2]
The Seventh Circuit minimized this distinction by claiming the AR-15 can fire 300 rounds-per-minute. It saw no relevant difference between that rate and the automatic rate-of-fire for the military M16/M4 at 700 rounds-per-minute. (The automatic rate for the M16/M4 actually is 700-to-900 rounds-per-minute, but the panel apparently chose the lower number to create a more favorable comparison.).
Anyone who actually has fired an AR-15 knows that the Seventh Circuit’s “300 rounds a minute” claim is clearly mistaken. Since the AR-15 fires only one round for each trigger pull, the shooter would require the shooter to pull the trigger five times every second for an entire minute to achieve that rate. As the dissenting judge in Bevis pointed out, I spent nine pages in my “Assault Weapon” Myths law review article discrediting the 300-rounds-per-minute figure and tracing its dubious origins to a single unsourced claim by a gun-control advocate in 1991.
The Seventh Circuit further asserted that even if the AR-15 is not a machine gun, simple modifications like bump stocks, binary triggers, and auto-sears that can transform it into one. The whole point of these devices is to make the semiautomatic AR-15 fire almost as rapidly as the fully automatic M16. If the difference between the two weapons’ unmodified rates of fire is only “slight”— a description Bevis adopts from Kolbe v. Hogan—these devices would be unnecessary. Their existence proves that the semiautomatic AR-15 does not fire almost as rapidly as the automatic M16.
Popular handguns can be modified to fire at a fully automatic rate. The so-called “Glock switch” is a relatively simple device that allows a conventional semiautomatic Glock pistol to function as a fully automatic firearm. By the Seventh Circuit’s logic, Glock handguns could be banned because criminals use these illegal switches to make them fire like machine guns.
The solution is to regulate the aftermarket devices, not ban the entire firearm as originally sold—especially when a constitutional right is at issue. The ATF already has classified an auto-sear as a machine gun as defined by 26 U.S.C. 5845(b). Bureau of Alcohol, Tobacco, Firearms and Explosives, 27 CFR 179.11: Meaning of Terms. The Seventh Circuit apparently was unaware of this classification when it declared that “[i]f the AR-15 by itself is not a machinegun because it fires ‘only’ at the rate of 300 rounds per minute, and the auto-sear is also not a machinegun because it is just a component that holds a hammer in the cocked position, that would be a road map for assembling machineguns and avoiding legitimate regulations of their private use and carry.” The Glock switch similarly is classified as a machine gun under federal law.
The Bevis dissent, written by Judge Michael Brennan, is a masterful takedown of the majority’s decision. Marshalling both facts and law, he exposes the majority’s errors and wafer-thin arguments.
The Bevis decision is another example of the need for judges to have accurate facts when making decisions about the constitutionality of “assault weapon” bans. No one expects judges to be firearms experts, competitive shooters, or even occasional range visitors. But judges should be serious arbiters of facts, especially on a topic as susceptible to widely-disseminated disinformation and myths regarding the dangerousness of “assault weapons.” Bad facts make bad law. Judges should not let honest unfamiliarity become willful ignorance, lest their judicial decisions become mere political narrative—as apparently happened here.
[1] While Heller suggests that machine guns are not protected, federal law does not ban machine guns, but extensively regulates their possession. 26 U.S.C. §§ 5801-5872. There are around 750,000 lawfully registered machine guns in the U.S. See ATF, Firearms Commerce in the United States, Annual Statistical Update 2021. That number includes machine guns possessed by law enforcement and other government agencies. The ATF stated in a February 2016 letter, that there were 175,977 are transferrable pre-1986 machine guns as of that date.
[1] Although the Seventh Circuit only mentioned ammunition in this passing reference, the use of identical or similar ammunition does not make the AR-15 an especially dangerous firearm. For a discussion of how .223 and 5.56 rounds are underpowered compared to other long gun ammunition, see David Kopel & Gregory Wallace, How Powerful Are AR Rifles?, The Volokh Conspiracy (Feb. 27, 2023).