135
Trouble Bruen For Assault Weapon Bans:
A Feature-Based Analysis of the Second
Amendment
SAMUEL R. VASILOPULOS
*
“Assault weapons” and “large-capacity magazines” have been the tar-
get of recent legislation, such as the Protect Illinois Communities Act. Weap-
ons bans of this nature have traditionally been upheld by the lower courts;
however, the U.S. Supreme Court has refined the test for constitutionality
under the Second Amendment in New York State Rifle & Pistol Association,
Inc. v. Bruen (2022). Bruen has laid out a two-step test in which the first step
asks whether the conduct, namely the possession of a specifically banned
arm, is within the scope of the plain text of the Second Amendment. To deter-
mine whether an arm falls within the scope, it must be a bearable arm com-
monly used for the purpose of self-defense. If the conduct is within the scope
of the plain text, then the conduct is presumptively protected. The burden
then falls upon the government to prove that there is a historical tradition in
the United States of regulating the protected conduct. The Court has specif-
ically denoted one historical tradition for arms ban cases, recognizing that
there is a historical tradition of banning “dangerous and unusual” weapons.
The category of “assault weapons,” however, is a fundamentally inef-
fective classification of arms due to the overly broad definition. An “assault
weapon” includes firearms with a wide range of distinct features that will
require a separate analysis for each arm. Some of the features and firearms
commonly banned under these acts will be protected under the plain text of
the Second Amendment without a historical analogue to permit regulation.
However, a separate swath of firearms banned under the definition of “as-
sault weapon” will fall outside the scope of the Second Amendment. There-
fore, each weapon or feature must be evaluated separately to determine if
the arms ban is constitutional.
136 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
I.
INTRODUCTION ...................................................................................... 136
II. THE SECOND AMENDMENT IS GIVEN UNWIELDY TEETH ..................... 140
A. MILLER’S “COMMON USE” TEST .................................................................... 141
B. HELLER BORES A NEW INDIVIDUAL RIGHT ................................................ 142
1. Heller’s New “Common Use” Test .......................................... 142
2. McDonald and Caetano Expand the Heller Decision ............. 144
C. BRUEN TRIMS THE TEST AND RAHIMI ADDS UNCERTAINTY .................. 146
III. THE BITE OF BRUEN ON ASSAULT WEAPON BANS .............................. 151
A. ASSAULT WEAPONS ......................................................................................... 152
1. Feature-Based Assault Weapons ............................................. 152
a. The Semiautomatic Feature ............................................... 154
b. Assault Weapon Attachments ............................................ 159
c. Large-Capacity Magazine Ban .......................................... 164
2. Series- or Model-Based Assault Weapons ............................... 167
IV. CONCLUSION ....................................................................................... 170
I.
INTRODUCTION
“Do something.”
1
This phrase has been the rallying call from gun regu-
lation advocates following numerous mass shootings across the nation.
2
From the Rose Garden, President Biden repeated this language and further
called for the banning of “assault weapons” and “high-capacity magazines.”
3
Ten states and the District of Columbia have taken action through legislation
to restrict access to firearms branded as assault weapons,
4
with California
being the first state to enact an assault weapons ban in 1989.
5
Congress sim-
ilarly enacted a federal assault weapons and large-capacity ammunition
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 137
feeding devices ban in 1994, although this act was repealed by a sunset clause
in 2004.
6
Additionally, fourteen states and the District of Columbia have re-
stricted what are labeled as high- or large-capacity magazines, with limits
ranging from ten rounds per magazine to seventeen.
7
And once again, over
thirty years later, the sentiment that something must be done to enact gun
legislation reverberates with the passage of the Protect Illinois Communities
Act (PICA).
8
Governor J.B. Pritzker signed PICA into Illinois law on January
10, 2023, finalizing the debut of the new Illinois assault weapon and large-
capacity magazine ban with the statement that he “couldn’t be prouder to say
that we got it done. And we will keep fighting—bill by bill, vote by vote, and
protest by protest—to ensure that future generations only hear about massa-
cres like Highland Park, Sandy Hook, and Uvalde in their textbooks.”
9
How-
ever, the passage of PICA and similar bans may be fruitless acts when faced
with the U.S. Supreme Court’s expansive view of the Second Amendment.
Although the Court historically has been reluctant to grant certiorari to
potentially controlling Second Amendment cases,
10
it has shown a willing-
ness within the past twenty years to expand the protections of the Second
Amendment with the majority opinions in District of Columbia v. Heller
(2008),
11
McDonald v. City of Chicago (2010),
12
Caetano v. Massachusetts
(2016),
13
and New York State Rifle & Pistol Association, Inc. v. Bruen
(2022).
14
And while the Court’s recent decision to reject a Second Amend-
ment challenge to the federal firearm possession ban for individuals subject
to domestic violence restraining orders in United States v. Rahimi (2024)
15
138 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
could indicate a reversal in the Court’s predominantly expansive view, the
Court still has shown an increasing willingness to hear Second Amendment
issues. The Bruen decision, in particular, has refined the test to evaluate Sec-
ond Amendment challenges to determine whether activity restricted by leg-
islation is within the plain-text scope of Second Amendment protection.
16
If
it is within the scope, then the conduct is presumptively protected by the
Constitution.
17
The government must then demonstrate that the regulation is
“consistent with this Nation’s historical tradition of firearm regulation,”
18
as
determined through a historical-analogical assessment of the right.
19
It remain
s only a matter of when the Court will grant certiorari to a case
involving assault weapon and magazine capacity bans. Indeed, while the
Court declined to grant certiorari for the Illinois assault weapons ban due to
it being “wary of taking cases in an interlocutory posture,” Justice Thomas
explicitly stated that he hopes the Court “will consider the important issues
presented by these petitions after the cases reach final judgment.”
20
Thus, an
inescapable question is presented to the legal community: Are assault weap-
ons bans and large-capacity magazine bans, as commonly advanced to reduce
gun violence in legislation like PICA, sufficient to survive constitutional
muster post-Bruen?
Some articles contend that bans on assault weapons, and their com-
monly bundled large-capacity magazine bans, are wholly unconstitutional
following the Court’s recent decision in Bruen.
21
Alternatively, others con-
tend that the bans are wholly constitutional.
22
However, these assessments
take an overbroad view of what is banned under these laws. The common
www.scotusblog.com/2023/06/justices-take-up-major-second-amendment-dispute/
[https://perma.cc/Z38Z-22VH].
16. Bruen, 597 U.S. at 17.
17. Id.
18. Id.
19. Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment
Adjudication, 133 Y
ALE L.J. 99, 115-19 (2023).
20. Harrel v. Raoul, 144 S. Ct. 2491, 2492 (2024) (Mem.); see also Jon Seidel, Battle
Over Illinois’ Assault Weapon Ban Will Continue After Supreme Court Declines to Get In-
volved, C
HI. SUN TIMES (July 2, 2024, 5:31 PM), chicago.suntimes.com/poli-
tics/2024/07/02/supreme-court-declines-hear-challenge-illinois-assault-weapons-ban
[https://perma.cc/W2ZD-Q9ZX].
21. See, e.g., Mark W. Smith, What Part of “In Common Use” Don’t You Under-
stand?: How Courts Have Defied Heller in Arms-Ban Cases—Again, 2023 H
ARV. J.L. & PUB.
POL’Y PER CURIAM 1 (2023); Bill Bandy, It Is Really Worth Insisting Upon: A New Test for
the Second Amendment, 60 H
OUS. L. REV. 197 (2022); David B. Kopel & Joseph G.S. Green-
lee, The History of Bans on Types of Arms Before 1900, 50 J.
LEGIS. 223 (2024).
22. Kellie Kleitsch, Comment, “It Is Time to End This Madness”: Why the Protect
Illinois Communities Act Is Constitutional Under the Second Amendment, 55 L
OY. U. CHI. L.J.
965 (2024).
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 139
thought—by either legislation,
23
courts,
24
or in scholarship
25
—is to treat as-
sault weapons as a category of firearms. This Comment provides an alterna-
tive view, in that the firearms and attachments banned under these laws are
too varied to be considered blanketly protected or unprotected by the Consti-
tution under the category of “assault weapon.” Due to the wide range of items
and features swept under the umbrella term of assault weapon, some individ-
ual firearms and accessories may be considered constitutionally protected
while a separate range of other firearms and accessories may be considered
to fall outside the scope of protection for the Second Amendment, with these
sections of the law likely surviving constitutional muster. The classification
of “assault weapon” is a fundamentally ineffective category without a uni-
form or a practical meaning, and thus each provision of the law and regula-
tion of a particular firearm must be considered individually. Therefore, the
classification of “assault weapon” does not fundamentally fit within the new
framework established by Bruen.
In Par
t II, this Comment will explore the Court’s treatment of what fire-
arms are considered either protected or excluded from constitutional protec-
tion in Miller, Heller, McDonald, Caetano, and Bruen. A journey through
Second Amendment caselaw is necessary to provide parameters for what is
considered “common use” and “dangerous and unusual” under the Constitu-
tion. The majority opinions for each of these seminal cases augmented the
practical application of the Second Amendment by crafting a superficially
simple test in which “courts must evaluate the constitutionality of modern
weapons laws by analogizing to historical predecessors.”
26
The two-step test
fortified by Bruen first asks whether the Second Amendment’s plain text co-
vers the individual’s conduct; if it does, the government must then show that
the regulation is consistent with the historical traditions of firearm regulation
in the United States.
27
In Part III, this Comment will analyze the common firearms found in
assault weapon and large-capacity magazine bans through the lens of the
Bruen test to assess the constitutionality of these statutes. This Comment will
utilize the Protect Illinois Communities Act as an exemplary catalyst while
incorporating the features of other states’ assault weapon and large-capacity
140 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
magazine bans. As will be discovered in this section of the Comment, the
fate of PICA and similar bans appears quite dim when the test is applied.
However, a blanket constitutional invalidation of the bans is not warranted.
Portions of 720 ILCS 5/24-1.9(a)(1)-(3)
28
defining and restricting assault
weapons will be salvageable under Bruen, but many of the firearms and at-
tachments banned will be protected under the text of the Second Amendment
without historical analogues permitting restrictions. Furthermore, the large-
capacity magazine ban contained in 720 ILCS 5/24-1.10
29
will likely be held
unconstitutional in its current state. It may be salvageable, but perhaps in a
manner inadequate to the proponents of magazine limitations. However un-
satisfactory the suggested alterations are to proponents of PICA and similar
bans, the current state of the weapons ban laws will not pass constitutional
muster and must be changed, or they will face invalidation on constitutional
grounds.
II.
THE SECOND AMENDMENT IS GIVEN UNWIELDY TEETH
“A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.”
30
We
begin with a primer and delve into the caselaw to determine the bounds of
the Second Amendment and the parameters of deciding whether an arm is
protected under its language. Prior to 2008 and the Heller decision, these
words stood in a peculiar limbo without meaningful use in the American legal
system. The Court initially interpreted the text of the Amendment in the 1875
case United States v. Cruikshank with the declaration that “‘bearing arms for
a lawful purpose’ . . . . is not a right granted by the Constitution” and that
“[t]he second amendment declares that it shall not be infringed; but this, as
has been seen, means no more than that it shall not be infringed by Con-
gress.”
31
The Cruikshank decision against an individual right was then forti-
fied eleven years later in Presser v. Illinois,
32
where the Court found that “all
citizens capable of bearing arms constitute the reserved military force or re-
serve militia of the United States as well as of the states,”
33
and therefore,
“the states cannot . . . prohibit the people from keeping and bearing arms, so
as to deprive the United States of their rightful resource for maintaining the
public security, and disable the people from performing their duty to the gen-
eral government.”
34
Next, following the Presser reasoning of public safety,
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 141
the Court in United States v. Miller set forth a new test for what arms are
protected based on “common use.”
35
A. MILLER’S “COMMON USE” TEST
The National Firearms Act of 1934 (NFA)
36
established the first federal
regulation of firearms
37
to “limit the availability of machine guns, short-bar-
reled shotguns, short-barreled rifles, sound suppressors (silencers), and other
similar weapons that were often used by criminals during the Prohibition
Era.”
38
The eponymous Miller was charged with feloniously transporting a
double-barrel 12-gauge shotgun with a barrel length of less than eighteen
inches with neither the proper registration nor an order affixed with a stamp
as required under the NFA.
39
Following the lead of Presser, the Miller Court
unequivocally tied the right to bear arms to the militia.
40
However, the Court
also unequivocally attached which arms are protected under the umbrella of
the Second Amendment to what was beneficial to the militia, expressing
simply that:
In the absence of any evidence tending to show that
possession or use of a ‘shotgun having a barrel of
less than eighteen inches in length’ at this time has
some reasonable relationship to the preservation or
efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to
keep and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of
the ordinary military equipment or that its use could
contribute to the common defense.
41
The Miller Court relied heavily on the dichotomy between the civilian
militia and a standing army, the latter of which the states “were forbidden to
142 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
keep without the consent of Congress.”
42
The civilian militiamen were not
professional soldiers and were typically equipped with items that civilians
had in their possession, as the militiamen were “expected to appear bearing
arms supplied by themselves and of the kind in common use at the time.”
43
And due to distrust of standing armies when the Constitution was adopted,
the standard for what weapons were protected under the Second Amendment
was limited by the Miller Court to those arms commonly used in the militia.
44
A short-barreled shotgun, as the Court concluded, finds no semblance of
“common use” for the preparedness of civilians in the militia, and thus does
not advance the public defense policy of the Second Amendment.
45
Althou
gh no longer the controlling law, the reasoning from the Miller
case is still valuable. As will be later observed in Heller, the “common use”
test denotes what is in common use by civilians for a core policy. While the
policy adopted under Miller remains connected to the militia, the policy will
be changed to a more individualized approach in Heller.
B. HELLER BORES A NEW INDIVIDUAL RIGHT
For almost seventy years after Miller, the legal standard for the Second
Amendment remained virtually untouched. Miller remained the only real sig-
nificant opinion on the Second Amendment’s right to bear arms
46
until the
landmark 2008 case District of Columbia v. Heller
47
drastically altered the
Amendment’s previous understanding, ultimately subsuming and adapting
the Miller “common use” test beyond the original intent of the Miller Court.
48
This section will delve into the three cases that define the modern under-
standing of which firearms are considered to be protected by the Second
Amendment, namely the Heller, McDonald, and Caetano decisions.
1. Heller’s New “Common Use” Test
Prior to 2008, the District of Columbia generally prohibited the regis-
tration, and therefore possession, of handguns by individuals.
49
District of
Columbia residents were also required to maintain their lawfully owned fire-
arms “unloaded and dissembled or bound by a trigger lock or similar device,”
except in a place of business or during lawful recreational activities.
50
Heller
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 143
was permitted to carry a handgun in his capacity as a D.C. special police
officer; however, he was denied his application for a handgun at home in
accordance with the District’s law.
51
The Court used this pretext to define the
meaning of specific clauses of the Second Amendment and create a doctrine
as to what is considered a protected arm under the text.
First and
foremost, the Heller Court made a substantial departure from
the original understanding of the Second Amendment. The new interpretation
of the Amendment now recognizes an individual right to bear arms, whereas
the connection to militia service is merely important for the purpose of the
individual’s right to keep and bear arms.
52
Second, the Heller Court used
founding-era sources to define the term “arms” within the minimally changed
eighteenth-century definition, essentially consisting of “[w]eapons of of-
fence, or armour of defence,”
53
or something that a person “takes into his
hands, or useth in wrath to cast at or strike another.”
54
The definition of keep-
ing and bearing arms that the Court used was applied “to weapons that were
not specifically designed for military use and were not employed in a military
capacity,”
55
but also extends to weapons “not in existence at the time of the
founding.”
56
In all, “the Second Amendment extends, prima facie, to all in-
struments that constitute bearable arms.”
57
And by combining the prefatory
clause, “A well regulated Militia, being necessary to the security of a free
State,” with the operative clause, “the right of the people to keep and bear
Arms, shall not be infringed,” the Court created a new policy for which the
right to bear arms is empowered: the individual right to self-defense.
58
Subsequently, the Court looked back to Miller to reconcile the seeming
change in law, upon which Justice Stevens claimed that “hundreds of judges
have relied on the view of the Amendment we endorsed there.”
59
The Heller
Court stated that Miller did not determine the substantive law regarding the
meaning of the Second Amendment, but only that the type of weapon, being
a short-barreled shotgun, was not covered.
60
Expressly, the Heller Court
stated that “Miller stands only for the proposition that the Second
144 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
Amendment right, whatever its nature, extends only to certain types of weap-
ons.”
61
Incorporating the “common use” test from Miller, the Heller Court
concluded that “[t]he traditional militia was formed from a pool of men
bringing arms ‘in common use at the time’ for lawful purposes like self-de-
fense. ‘In the colonial and revolutionary war era, [small-arms] weapons used
by militiamen and weapons used in defense of person and home were one
and the same.’”
62
In this understanding, as adopted by the Heller Court, the
Second Amendment “does not protect those weapons not typically possessed
by law-abiding citizens for lawful purposes,”
63
such as the short-barreled
shotgun and machineguns regulated by the NFA.
64
The Court importantly
discerns that weapons which are “most useful in military service—M–16 ri-
fles and the like—may be banned.”
65
However, it is important to note that
the Heller Court used what is also in present common use for self-defense,
denoting that handguns are protected because they are the most popular
weapon chosen by Americans for self-defense.
66
Hell
er furthermore contains a second constraint, not as thoroughly ex-
plored in the decision, but still important—a limitation based on historical
tradition.
67
And when an arm-type is banned, the Court recognized one note-
worthy historical tradition of “prohibiting the carrying of ‘dangerous and un-
usual weapons.’”
68
What qualifies as a “dangerous and unusual” weapon will
be expanded upon further in Caetano.
And, as will be expressly laid out in Bruen, a two-step test is effectively
created. First, the D.C. law in Heller prohibited an entire class of firearms
that are commonly used for self-defense, being handguns.
69
Second, there is
no historical tradition in the United States of categorical handgun bans.
70
Thereby, the D.C. law at issue in Heller was found unconstitutional under
the Second Amendment.
71
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 145
McDonald v. City of Chicago.
72
The McDonald Court also doubled down on
Heller’s assertion that “individual self-defense is ‘the central component’ of
the Second Amendment.”
73
Although McDonald is fundamentally an exten-
sion of Heller with regard to the possession of firearms for self-defense,
74
the
Caetano Court ruled in a short per curiam decision that modern arms, such
as stun guns, are not excluded from protection in accordance with the Heller
decision.
75
The concurrence, as authored by Justice Alito and joined by Jus-
tice Thomas, offers insight into the Heller “common use” test and the scope
of the terms “dangerous and unusual.”
76
Specifically, the concurrence recog-
nized that a weapon must be both dangerous and unusual to ban.
77
A Massach
usetts statute prohibited “the possession of an electrical
weapon,” which included the possession of a stun gun.
78
The Court unani-
mously denied the Massachusetts Supreme Judicial Court’s statement that
the “common use” test meant “in common use at the time of the Second
Amendment’s enactment.”
79
The Alito concurrence, in particular, reaffirmed
the Heller decision that weapons not in existence at the time of the Second
Amendment’s enactment and ultimately unknown to the First Congress—
such as revolvers, semiautomatic pistols, and electronic stun guns—are still
prima facie bearable arms under the Amendment.
80
As to the definition of “dangerous and unusual,” Justice Alito expressly
rejected the definition of “dangerous” being any weapon that is “‘designed
and constructed to produce death or great bodily harm’ and ‘for the purpose
of bodily assault or defense.’”
81
As this would encompass every arm, Justice
Alito proposed that the “relative dangerousness of a weapon is irrelevant
when the weapon belongs to a class of arms commonly used for lawful pur-
poses.”
82
Under this axiom, a dangerous weapon may be anything that is not
used for lawful purposes, such as machineguns or short-barreled shotguns, as
exemplified in Heller.
83
Thus, a “dangerous per se” argument is not applica-
ble to the term “dangerous,” and dangerousness, in the context of the Second
Amendment, is directly tied to whether the arm is commonly used for lawful
purposes such as self-defense.
84
146 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
Correspondingly, the Court and Justice Alito’s concurrence rejected a
definition of “unusual” being tied to whether a weapon was common in 1789
or if the weapon is to be used in a military context.
85
Instead, whether a
weapon is “commonly possessed by law-abiding citizens for lawful purposes
today” defines Justice Alito’s methodology regarding unusualness.
86
Fur-
thermore, the commonality of a weapon is not tied to proportionality of the
total firearms in circulation or how much the weapon is used for self-defense,
but whether the weapon is “widely owned and accepted as a legitimate means
of self-defense across the country.”
87
To be precise, the lawful possession of
approximately 200,000 civilian-owned stun guns across forty-five states is
sufficient for Justice Alito and Justice Thomas to be common, even though
stun guns are significantly less popular than handguns for self-defense.
88
And
markedly, as the per curiam decision left unchallenged—with no dissenting
opinions—the possession of approximately 200,000 stun guns as a bearable
arm under the Second Amendment, the quantity of an arm may be similar to
qualify it as “in common use.”
89
C. BRUEN TRIMS THE TEST AND RAHIMI ADDS UNCERTAINTY
Despite Heller’s explicit rejection of an interest-balanced test for the
Second Amendment,
90
post-Heller appellate courts nonetheless implemented
methods that balanced governmental interests against the right to self-de-
fense.
91
The prevalent two-step test applied by the appellate courts first al-
lowed the government to “justify its regulation by ‘establish[ing] that the
challenged law regulates activity falling outside the scope of the right as orig-
inally understood.’”
92
If the government was able to prove the conduct being
regulated was outside the scope of the Second Amendment, then the conduct
was categorically unprotected and the court would go no further.
93
If histor-
ical analysis was either “inconclusive or suggests that the regulated activity
is not categorically unprotected,”
94
then the court moved on to the second
step.
95
The second step analyzed “how close the law comes to the core of the
Second Amendment right and the severity of the law’s burden on that
right.”
96
If the law burdened a “core” of the Second Amendment, which the
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 147
courts of appeals typically limited to self-defense solely in the home, then a
strict scrutiny test was applied.
97
But if this “core” was not burdened, then
intermediate scrutiny was applied.
98
In th
e context of arms bans, such as assault weapons bans, the pre-Bruen
First, Second, Seventh, and D.C. Circuits universally upheld the bans by pre-
suming that assault weapons were within the scope of the Second Amend-
ment and thereby covered under step one of the test.
99
However, these courts
applied the means-end intermediate scrutiny test and upheld the bans.
100
Only
the Fourth Circuit found assault weapons and large-capacity magazines to be
“dangerous and unusual”
101
as the weapons were “clearly most useful in mil-
itary service.”
102
Consequently, the Fourth Circuit decided that assault weap-
ons fell outside the scope of the Second Amendment.
103
The Bruen Court expressly rejected this popular test developed by the
courts of appeals.
104
The Court kept the first step of the test, stating that the
first step is “broadly consistent with Heller, which demands a test rooted in
the Second Amendment’s text, as informed by history.”
105
The second step
involving a means-end test, however, is entirely inconsistent with Heller, and
the Court instead insisted upon the government “affirmatively prov[ing] that
its firearms regulation is part of the historical tradition that delimits the outer
bounds of the right to keep and bear arms.”
106
In the simplest terms possible,
the Bruen Court laid out the test for protection under the Second Amendment
as follows:
When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presump-
tively protects that conduct. The government must
then justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of
firearm regulation. Only then may a court conclude
148 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
that the individual’s conduct falls outside the Sec-
ond Amendment’s “unqualified command.”
107
Under
this language, the individual’s conduct must be covered by the
“plain text” of the Second Amendment, and only if the conduct is protected
by the plain text does historical tradition come into play.
108
It is worth noting
that after the Bruen decision, it is unclear which step of the test the “common
use” standard lies, with the Seventh Circuit claiming that there is “no con-
sensus on whether the common-use issue belongs at Bruen step one or Bruen
step two.”
109
The most sensible conclusion is that it plays a role in both Bruen
steps. The “plain text” is informed by history, and in the context of arms bans,
the text of what a bearable arm is would be dictated by the “common use”
standard previously described in Miller, Heller, and the supplemental con-
currence of Caetano. Next, for an arms ban, a court must find a consistent
history and tradition of banning possession of this type of arm, with historical
analogical reasoning that two regulations are “relatively similar” being per-
mitted when there is no exact equivalent.
110
Specifically, the historical anal-
ogy must be around either the adoption of the Second Amendment in 1791
or the adoption of the Fourteenth Amendment in 1868 to conform to the un-
derstanding as was adopted.
111
“Common use” may again be applied here, if
necessary, as commonly-used arms for lawful purposes like self-defense
must intuitively exclude non-bearable arms historically banned. In addition,
the historical tradition of banning “dangerous and unusual” weapons will be
applicable in Bruen step two, and the common use of a weapon directly cor-
relates with the unusualness of the weapon.
However, it is important to delineate that outlier analogue regulations
that would not have been generally accepted at the time are not sufficient, yet
“analogical reasoning requires only that the government identify a well-es-
tablished and representative historical analogue, not a historical twin.”
112
Two factors play a role in what makes an analogical inquiry “relevantly sim-
ilar”: the courts must weigh both “how and why the regulations burden a law-
abiding citizen’s right to armed self-defense.”
113
In essence, the courts must
analyze “whether modern and historical regulations impose a comparable
burden on the right of armed self-defense and whether that burden is compa-
rably justified are ‘“central”‘ considerations when engaging in an analogical
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 149
inquiry.”
114
As long as the analogue ban is close enough to a long-standing
regulation, the ban will pass constitutional muster.
115
One i
ssue arises regarding what is “relevantly similar” enough to qual-
ify as a historical analogue. The Bruen Court looked to numerous historical
laws related to the challenged statute at hand that restricted public carry of
arms, including: several laws in English history;
116
three laws in the history
of the Colonies and early Republic;
117
several common law, statutory, and
surety statutes after the ratification of the Second Amendment;
118
a statute
and state-court decisions around the adoption of the Fourteenth Amend-
ment;
119
and regulations during the late nineteenth century.
120
Each of these
were rejected for various reasons. For instance, the three colonial-era stat-
utes—two of which regulated being “armed offensively” while the third
“prohibited the concealed carry of ‘pocket pistol[s]’ or other ‘unusual or un-
lawful weapons’”
121
—were not enough, among other reasons, because they
only limited “dangerous and unusual weapons,” as already acknowledged in
Heller.
122
The Court also looked to an 1801 Tennessee statute that required a
surety to be posted for individuals who “publicly ride or go armed to the
terror of the people, or privately carry any dirk, large knife, pistol or any other
dangerous weapon, to the fear or terror of any person.”
123
Despite how on
point these regulations seem to public carry, the Court found that these were
not sufficient because they had the extra element of “bearing arms in a way
that spreads ‘fear’ or ‘terror’ among the people.”
124
As such, Bruen indicates
a high standard for analogues to uphold a modern firearm regulation.
This is sharply contrasted with the Court’s most recent decision in
Rahimi. The Rahimi Court considered the facial constitutionality of a federal
statute that “prohibits an individual subject to a domestic violence restraining
order from possessing a firearm if that order includes a finding that he ‘rep-
resents a credible threat to the physical safety of [an] intimate partner,’ or a
child of the partner or individual.”
125
The Court suggests that some have
“misunderstood” the recent Second Amendment cases and that “[t]hese prec-
edents were not meant to suggest a law trapped in amber.”
126
The Court found
150 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
that by the same logic of the Second Amendment applying to “all instruments
that constitute bearable arms, even those that were not [yet] in existence . . .
. the Second Amendment permits more than just those regulations identical
to ones that could be found in 1791.”
127
Emphasizing that the challenged reg-
ulation must “comport with the principles underlying the Second Amend-
ment,”
128
the Court found that surety and “going armed” laws, such as the
Tennessee law found in Bruen,
129
are enough when taken together to justify
modern laws disarming an individual when they pose a “clear threat of phys-
ical violence to another.”
130
But as Justice Thomas, the sole dissent, indi-
cated, surety laws were a “fine on certain behavior[s]” where “[i]f a person
threatened someone in his community, he was given the choice to either keep
the peace or forfeit a sum of money.”
131
When compared with a law that
disarms an individual subject to a domestic violence restraining order,
132
surety laws appear to be less on point than the public carry laws categorically
dismissed under Bruen. Accordingly, Rahimi indicates that the Court is in-
creasingly willing to accept a broader range of analogous laws than it was in
Bruen.
How
ever, Bruen also seems to almost disregard this second step for a
historical analogue in arms ban cases by stipulating that:
Whatever the likelihood that handguns were consid-
ered “dangerous and unusual” during the colonial
period, they are indisputably in “common use” for
self-defense today. They are, in fact, “the quintes-
sential self-defense weapon.” Thus, even if these co-
lonial laws prohibited the carrying of handguns be-
cause they were considered “dangerous and unusual
weapons” in the 1690s, they provide no justification
for laws restricting the public carry of weapons that
are unquestionably in common use today.
133
Therefore, if a firearm is popular enough to become “quintessential” for
self-defense, the common use of the weapon today may de facto override
historical tradition.
To encapsulate the synthesized Bruen test for arms bans, Bruen step one
commands that the possession of a specific arm is presumptively protected
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 151
by the plain text of the Second Amendment if it is (1) a bearable arm,
134
(2)
in common use,
135
(3) for the lawful purpose of self-defense.
136
Next, for
Bruen step two, the government must justify its arm ban “by demonstrating
that it is consistent with the Nation’s historical tradition of firearm regula-
tion.”
137
However, a pseudo-third step—seemingly unique to arms posses-
sion and carry bans and almost displacing or running parallel to the historical-
tradition test—indicates that an arm can be so “indisputably in ‘common
use’” that it becomes “quintessential” for self-defense and cannot be
banned.
138
III. THE BITE OF BRUEN ON ASSAULT WEAPON BANS
With the test laid out as clearly as possible, albeit with built-in ambigu-
ities, we will now apply the Bruen test to the assault weapon and magazine
capacity bans as found across various states. This Comment will parse
through the most prominent examples of assault weapons under the wide-
netted definition to establish that the category of “assault weapon” is funda-
mentally flawed under the new Bruen test. As will be shown, some of these
weapons will likely be protected under the Second Amendment, but some of
the firearms or attachments will likely be outside the scope of the Amend-
ment. Furthermore, as the ammunition capacity of the weapon is habitually
tied to the definition of an “assault weapon,”
139
we will also examine large-
capacity magazine bans. With this said, the primary focus of this Comment
will remain on the assault weapon and large-capacity magazine ban found in
the Protect Illinois Communities Act.
140
Assault weapon bans are also often
similar in scope or structure with slight variations, and typically comparable
to the now-expired federal assault weapons and large-capacity magazine ban
passed in 1994.
141
As recognized by the Seventh Circuit, PICA “defines
152 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
‘assault weapon’ using language that is largely borrowed from the expired
Federal Assault Weapons Ban.”
142
Due to the borrowed language and the oft-
shared weapons across the bans, an analysis of PICA’s provisions will be
largely applicable to the corresponding bans of other states.
A. ASSAULT WEAPONS
An “assault weapon” under 720 ILCS 5/24-1.9(a)(1) is a twelve-part
definition containing a scattershot of firearms and attachments.
143
Subsec-
tions (A) through (I) can be categorized as feature-based inclusions to the
definition, containing types of firearms that have certain features, typically
semiautomatic rifles, pistols, and shotguns.
144
However, subsections (J)
through (L) of the “assault weapon” definition can be seen as series- or
model-based inclusions, which automatically incorporates a list of certain in-
dividually named firearm series or specific models of firearms, as well as any
variants of the listed firearms.
145
Effective January 10, 2023, each weapon
that falls under this twelve-part definition of “assault weapon” and each “as-
sault weapon attachment” was prohibited from manufacture, sale, import, or
purchase, and possession of these items was barred effective January 1,
2024.
146
Exceptions, as noted, are provided for weapons grandfathered in or
when possessed by certain officers in their official capacity.
147
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 153
dimension, or otherwise enhances the concealability
of, the weapon; (iv) a flash suppressor; (v) a grenade
launcher; (vi) a shroud attached to the barrel or that
partially or completely encircles the barrel, allowing
the bearer to hold the firearm with the non-trigger
hand without being burned, but excluding a slide
that encloses the barrel.
148
Sub
section (C) adds semiautomatic pistols that have the capacity to ac-
cept detachable magazines if the pistol has one or more of the following mod-
ifications:
(i) a threaded barrel; (ii) a second pistol grip or an-
other feature capable of functioning as a protruding
grip that can be held by the non-trigger hand; (iii) a
shroud attached to the barrel or that partially or com-
pletely encircles the barrel, allowing the bearer to
hold the firearm with the non-trigger hand without
being burned, but excluding a slide that encloses the
barrel; (iv) a flash suppressor; (v) the capacity to ac-
cept a detachable magazine at some location outside
of the pistol grip; or (vi) a buffer tube, arm brace, or
other part that protrudes horizontally behind the pis-
tol grip and is designed or redesigned to allow or fa-
cilitate a firearm to be fired from the shoulder.
149
Subsection (F) includes as an assault weapon any semiautomatic shot-
gun that has one or more of the following:
(i) a pistol grip or thumbhole stock; (ii) any feature
capable of functioning as a protruding grip that can
be held by the non-trigger hand; (iii) a folding or
thumbhole stock; (iv) a grenade launcher; (v) a fixed
magazine with the capacity of more than 5 rounds;
or (vi) the capacity to accept a detachable maga-
zine.
150
Furthermore, 720 ILCS 5/24-1.9(a)(3) classifies any of these attach-
ments listed as an “assault weapon attachment.”
151
154 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
Meanwhile, subsection (B) of the “assault weapon” definition within
720 ILCS 5/24-1.9(a)(1) includes any “semiautomatic rifle that has a fixed
magazine with the capacity to accept more than 10 rounds,” except for an
attached tubular device only able to accept .22 caliber rimfire ammunition,
152
and subsection (D) similarly includes any semiautomatic pistol with a fixed
magazine that has the capacity to accept more than fifteen rounds.
153
Any
shotgun with a revolving cylinder is included under subsection (E).
154
And
any semiautomatic firearm that can accept a belt ammunition feeding device
is included under subsection (G).
155
And finally, any firearm that has been
modified to fall under any of the aforementioned definitions, and the parts
designed or intended to convert a firearm into an assault weapon, are included
under the definition of “assault weapon.”
156
As can already be seen, a wide variety of firearm features are grouped
together under the definition of “assault weapon.” Furthermore, each modu-
lar feature alters whether the firearm is a bearable arm in common use for the
lawful purpose of self-defense.
a. The Semiautomatic Feature
The common required characteristic between each of these feature-
based inclusions, apart from shotguns with a revolving cylinder, is the semi-
automatic firing capability. There is no general definition of what a semiau-
tomatic firearm is under 720 ILCS 5/24-1.9
157
or in Chapter 720 General
Definitions.
158
The only definition of a semiautomatic firearm is limited to
720 ILCS 5/33A-1, which states that a “‘semiautomatic firearm’ means a re-
peating firearm that utilizes a portion of the energy of a firing cartridge to
extract the fired cartridge case and chamber the next round and that requires
a separate pull of the trigger to fire each cartridge.”
159
This is nearly identical
to the federal definition of a “semiautomatic rifle” under 18 U.S.C. § 921,
160
the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) definition
of a “semiautomatic pistol,” “semiautomatic rifle,” and “semiautomatic
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 155
shotgun,”
161
and other states’ definitions of “semiautomatic.”
162
As such, the
definition used in this Comment will follow 720 ILCS 5/33A-1 as a general
definition for a “semiautomatic” firearm.
Altho
ugh the majority of the courts of appeals ruled that assault weap-
ons, and thereby semiautomatic weapons, were presumptively covered under
the plain text of the Second Amendment prior to Bruen, it is generally unclear
whether courts will presume coverage of assault weapons under the plain text
going forward.
163
Presuming coverage of assault weapons under the plain
text threshold may now require historical analysis that courts avoided before
Bruen, as opposed to a means-end test that universally upheld the ban.
164
However, the only consistency in the application of the test following Bruen
are the inconsistent outcomes. For example, and merely for the first step of
Bruen, the Southern District of California found in Miller v. Bonta that
“[m]odern semiautomatic rifles like the AR-15 platform rifle are widely
owned by law-abiding citizens across the nation. Other than their looks (the
State calls them ‘features’ or ‘accessories’) these prohibited rifles are virtu-
ally the same as other lawfully possessed rifles.”
165
Comparatively, the Sev-
enth Circuit in Bevis v. City of Naperville has changed their presumption that
assault weapons fall under the plain text of the Second Amendment.
166
The
Bevis decision emphasized the “bearable arms” language of Heller, stating
that the AR-15 and other semiautomatic weapons covered by PICA are
156 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
“much more like machineguns and military-grade weaponry than they are
like the many different types of firearms that are used for individual self-
defense.”
167
Indeed, the Seventh Circuit claims that the only meaningful dif-
ference between an AR-15, and thereby other semiautomatic firearms cov-
ered under PICA, and the M16 is the fact that the M16 is capable of both
fully automatic fire and semiautomatic fire.
168
To appl
y the plain text first step of Bruen to the semiautomatic feature
of firearms, the semiautomatic firearms must be a bearable arm in common
use for a lawful purpose like self-defense.
169
The semiautomatic feature
would likely have to be broken down further based on the type of firearm due
to the distinct ability for self-defense of each different class (i.e., a semiauto-
matic rifle, a semiautomatic pistol, and a semiautomatic shotgun). Immedi-
ately, the Bruen test encounters an objectivity concern. For each category of
semiautomatic firearm, the firearm must be a bearable arm. It must first be
considered whether a semiautomatic rifle, pistol, or shotgun are “typically
possessed by law-abiding citizens for lawful purposes.”
170
Just between these
three categories, differences emerge. A semiautomatic pistol was presump-
tively prima facie a covered arm under the plain text according to Justice
Alito’s concurrence in Caetano
171
and is very likely covered due to the com-
mon use of semiautomatic pistols in self-defense as a handgun under Heller.
Semiautomatic rifles and shotguns, however, have not been singled out.
As argued by the Seventh Circuit,
172
civilian semiautomatic rifles like
the AR-15 are nearly identical to the military’s M16 rifle, except that:
[T]he M16 . . . is capable of automatic fire, which
means if you pull and hold down the trigger, it’ll
keep firing bullets, whereas the AR-15 when - any-
one can pretty much buy in a store - it’s one trigger
pull, one bullet. But, you know, it goes as quick as
you can pull it . . . . [T]he gun itself is, functionally,
otherwise the same as what is being used by the mil-
itary.
173
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 157
But the selective fire feature and the difference between automatic and
semiautomatic fire are large enough to suit different purposes. For example,
automatic fire is likely considered most useful in a military context because
of the suppressive capability of automatic fire. Select-fire rifles allow for vi-
olent close-in engagements, heavy suppressive fire to keep an enemy’s head
down, or accurate semiautomatic fire.
174
Similarly, “just how accurate those
rounds will be depends on what mode you’re firing in.”
175
For the lawful
purpose of self-defense, it is certain that a more accurate mode of fire will be
useful so as to limit collateral damage, while the inaccurate automatic mode
of fire that is more suited for firefights will be most useful in military service.
Furthermore, the semiautomatic AR-15 rifle has been considered the
best-selling rifle in America, with one in twenty Americans owning the rifle,
according to The Washington Post.
176
The most answered reason for owning
an AR-15 in the Washington Post survey of four hundred AR-15 owners was
some form of self-defense or protection of home and family.
177
The 2021
National Firearms Survey produced by Georgetown University conducted an
online survey of approximately fifty-four thousand U.S. residents and iden-
tified 16,708 gun owners.
178
Resulting from this survey, it is estimated that
“30.2% of gun owners, about 24.6 million people, have owned an AR-15 or
similarly styled rifle, and up to 44 million such rifles have been owned.”
179
Additionally, 61.9% of respondents who owned AR-15 style rifles listed
home defense as their purpose for owning the rifle, while 34.6% of these
respondents listed defense outside the home as their purpose for owning the
rifle.
180
This number for just AR-15 style rifles far exceeds the 200,000 stun
guns that showed common use under the Caetano concurrence,
181
and the
most answered purpose for owning the firearm is typically self-defense.
However, whether semiautomatic rifles are “widely owned and accepted as
a legitimate means of self-defense across the country,”
182
if using Justice
158 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
Alito’s definition, may yield different results based on a court’s perception
of “widely accepted.” As to historical tradition, and assuming that semiauto-
matic rifles are widely accepted for self-defense, it is clear that no analogous
law will overcome the sheer popularity and common use of semiautomatic
rifles today under Bruen’s reasoning.
183
After all, Justice Thomas has already
acknowledged this in the Court’s order denying certiorari to the Illinois as-
sault weapons cases, asserting that “‘[t]he AR–15 is the most popular semi-
automatic rifle’ in America and is therefore undeniably ‘in common use to-
day.’”
184
Even assuming that semiautomatic rifles do not reach the “quintes-
sential” threshold from Bruen, the “history of nineteenth century bans on par-
ticular types of firearms is close to nil.”
185
The laws around the ratification
of the Fourteenth Amendment regarding type of weapons banned typically
included weapons that could be easily concealed and for concealability pur-
poses, such as Bowie knives, dirks, daggers, and small revolvers.
186
Alterna-
tively, weapons that were “not typically possessed by law-abiding citizens
for lawful purposes,” such as slungshots or knuckles, were similarly regu-
lated.
187
Slungshots, in particular, “‘were widely used by criminals and street
gang members in the 19th Century’ because ‘[t]hey had the advantage of be-
ing easy to make silent, and very effective, particularly against an unsuspect-
ing opponent.’”
188
Concealability and the particular usefulness in criminality
are the common features between the historical regulation of arms types.
Thus, there are no laws similar enough to create a well-established and rep-
resentative historical analogue to a semiautomatic rifle ban.
Semiautomatic shotguns, however, are where the Bruen step one analy-
sis breaks down.
189
Reliable data on firearm ownership is difficult to obtain.
There is no “definitive data source from the government or elsewhere on how
many American adults own guns.”
190
The ATF “does not maintain a federal
gun registry, [and] therefore, records are not kept on the sales of firearms,
private sales or information on individual purchasers.”
191
The ATF requires
NEWS (Mar. 2, 2018, 6:12 AM), abcnews.go.com/US/guns-/story?id=53388007
[https://perma.cc/3PEX-LRY2].
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 159
that all licensed manufacturers of firearms submit a production report of man-
ufacturing that differentiates based on pistols, rifles, shotguns, and various
other miscellaneous categories, but this report does not indicate the amount
of semiautomatic firearms produced.
192
Surveys of ownership found within
the 2021 National Firearms Survey provides the most comprehensive and
current data as of this writing, but does not generally differentiate between
semiautomatic and other types of rifles, pistols, or shotguns.
193
A 1994 na-
tionally representative telephone survey by the U.S. Department of Justice’s
National Institute of Justice did estimate the total number of handguns and
rifles, including semiautomatic of both firearm types, but did not differentiate
shotguns based on semiautomatic fire capability.
194
The data for firearm
ownership is simply absent, except for certain popular firearms like the AR-
15. Step one of the Bruen test will require more data collection based on
features of firearms to be reliably applied across several weapons features,
otherwise the finders of fact will have to rely on intuition or generalized data
for the commonality of a firearm.
How
ever, assuming that the number of semiautomatic shotguns exceeds
the number of stun guns in Caetano, which is almost certain, data would also
have to be collected as to what purposes semiautomatic shotguns are used
for, and if they are widely accepted for self-defense. If semiautomatic shot-
guns were still to pass Bruen step one, there would be no historical analogous
law, as the “dangerous and unusual” firearm laws were typically gauged for
concealability and weapons not typically possessed by law abiding citi-
zens.
195
There is no reason to indicate that a semiautomatic shotgun is inher-
ently more concealable or typically possessed for unlawful purposes, nor
would the conjunctive “unusual” test be passed if the weapon is undeniably
in common use.
b. Assault Weapon Attachments
The next aspect of feature-based assault weapons is the inclusion of one
or more “assault weapon attachments.” As each attachment modifies a
160 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
prominent feature of the firearm, each attachment must now be examined
under the Bruen test to assure that the modulated firearm does not now fall
outside of the scope of the Second Amendment. The first question presented
is whether an attachment or accessory itself is an “arm” under the plain text
of the Amendment. And this is again likely to differ based on the attachment
itself, as each attachment may not be considered an “arm” on its own. Com-
parable to the lack of data on firearm ownership previously indicated, there
is a lack of data for the commonality of each attachment feature and the pur-
pose for owning each attachment or weapons with specific attachment fea-
tures. However, to demonstrate the point that each attachment changes the
standing of the firearm for the purpose of the Bruen test, this section will
focus on the differing “bearable” and usefulness in self-defense characteris-
tics for specific attachments affixed to semiautomatic rifles, pistols, and shot-
guns.
First, we will examine whether each feature can be banned individually
when not attached to the firearm. Whether an accessory qualifies as a pro-
tected arm centers on if the attachment is a weapon for offense, or something
that a person “takes into his hands, or useth in wrath to cast at or strike an-
other.”
196
The base firearm, for instance, is a weapon for offense. But other
features, such as the grip, are not as clear. When considering detachable mag-
azines, the Southern District Court of California in Duncan v. Bonta stipu-
lated that an “arm” includes anything that is necessary for a firearm used in
self-defense to function, stating that “some semiautomatic firearms will not
function at all without a magazine, while others can fire no more than one
round. As such, a magazine is an essential component without which a sem-
iautomatic firearm is useless for self-defense. Therefore, a magazine falls
within the meaning of ‘arms.’”
197
Similarly, “silencer” attachments have
been found by the North Carolina Western District Court to not be necessary
for the function of a firearm, thereby falling outside of the meaning of
“arms.”
198
However, if a firearm is rendered inoperable without an item, such
as cleaning equipment, bullets, and materials that protect the firearm from
the elements, then this item is included under this meaning of an “arm.”
199
The “essential component” piece of this analysis is flawed and should not be
widely adopted, as this allows features that serve to enhance the ergonomic
or self-defense function of a firearm to be piecemeal stripped away to what
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 161
is only necessary to function as a firearm, without accounting for what makes
a weapon effective for self-defense.
200
A pistol grip, for instance, is not typ-
ically used on its own as a weapon for offense to strike another; however, a
pistol grip does increase stability and control over a rifle when firing from
the shoulder,
201
thereby improving accuracy and reducing the likelihood of
collateral damage in a self-defense situation. The grip is used in conjunction
with the protected firearm to enhance the purpose of self-defense and be-
comes a part of this firearm as a feature of the weapon. Furthermore, the
semiautomatic firearm itself is being prohibited because of the features added
by these attachments
202
and the attachments are, in turn, banned for being
“specifically designed for making or converting a firearm into any of the fire-
arms listed.”
203
This indicates that each attachment is now a necessary part
of the firearm prohibited because it converts the semiautomatic firearm into
an assault weapon. In so doing, feature-based attachments should be consid-
ered an “arm” if they alter the firearm in a considerable manner to constitute
a feature of the arm, or if it is already attached to the arm as a feature in
question.
The p
roblem now becomes whether the arm is bearable. Rifles and shot-
guns with attachments such as a pistol grip, a thumbhole stock, a protruding
grip, and a barrel shroud, largely affect the way that a person can hold or
control the weapon. As acknowledged by the City of Boulder in their ordi-
nance against assault weapons:
162 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
Assault weapons have features such as pistol grips
or thumb-hole grips, a forward grip or a barrel
shroud, which allow for greater control of the
weapon allowing it to be kept pointed at a target
while being fired. The pistol grip or thumb-hole grip
allows for greater control with the trigger hand. The
forward grip or barrel shroud, which is a fitting on
the barrel that protects the shooter’s hand from the
heated barrel allowing the shooter to grip the barrel,
both allow for better control with the non-trigger
hand.
204
A greater level of control for an individual only increases the ability to
effectively use the firearm in self-defense. Further, a prohibition on features
that increase a person’s control and stability has never been established as a
historical tradition,
205
nor would banning features increasing control of a
weapon be prudent.
Meanwhile, there are attachments that would fall outside the realm of a
bearable arm. Weapon attachments such as folding, telescoping, detachable,
or stocks “otherwise foldable or adjustable in a manner that operates to re-
duce the length, size, or any other dimension, or otherwise enhances the con-
cealability of, the weapon”
206
are almost certain to fall outside the scope of
the Second Amendment in a similar manner to short-barreled shotguns and
rifles. Concealability of rifles and shotguns has been identified by Miller and
Heller as a factor to make the weapon more likely to be used outside the
lawful use of citizens for self-defense.
207
Semiautomatic pistols that have “a
second pistol grip or another feature capable of functioning as a protruding
grip that can be held by the non-trigger hand”
208
are also likely to be consid-
ered more akin to short-barreled rifles, as the second grip provides the stabil-
ity of a rifle by firing with two hands while keeping the concealability of a
pistol.
209
Further, pistols with “a buffer tube, arm brace, or other part that
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 163
protrudes horizontally behind the pistol grip and is designed or redesigned to
allow or facilitate a firearm to be fired from the shoulder”
210
are predomi-
nantly considered by the ATF to be short-barreled rifles under the NFA.
211
Due to each of these attachments conferring features akin to short-barreled
shotguns and rifles—weapons that are expressly excluded from the scope of
the Second Amendment—firearms with these features are also excluded
from the Amendment.
Flash
suppressors, as either attached to a semiautomatic rifle or pistol,
are equally likely to be excluded from the bearable arms definition for being
more useful for criminals due to concealability, but also for being most useful
in military service. A flash suppressor is particularly distinguishable, de-
scribed as “a device attached to the muzzle of modern military rifles and
some civilian rifles. . . . These devices are intended to break up a fireball that
emerges from the muzzle of the rifle when fired at night.”
212
Although flash
suppressors do not change the dimensions of the firearm in a way to make it
more concealable, these attachments do make semiautomatic weapons more
concealable when firing. This would be particularly useful in a criminal con-
text to hide the location of where you are firing from, or in a military context
because “[s]uch a device is useful in combat to decrease the possibility of
counterfire.”
213
With either possibility, the concealable nature of a flash sup-
pressor is likely to cause firearms with this attachment to fall outside the
scope of the Second Amendment.
Finally, a clear example of an attachment that falls outside the scope of
the Second Amendment is the grenade launcher, for either a semiautomatic
rifle or shotgun. There are several varieties of grenade launchers, including
launchers that fire an explosive 40mm grenade
214
or a 37mm flare, such as
164 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
demonstrated in the Illinois State Police PICA Identification Guide.
215
Ex-
plosives go beyond use in self-defense and are most useful in military service
due to the destructive and indiscriminate nature of indirect fire. A grenade
launcher’s purpose is to “engage targets such as vehicles, machine gun nests,
and enemies in ‘dead space’. Dead space can be any area where you don’t
know exactly what’s behind it but there’s a high probability it’s someone
who wants to kill you.”
216
Meanwhile, grenade launchers like the 37mm flare
launcher are signaling devices and are very unlikely to be used in self-de-
fense, as the ATF determined that “devices designed for expelling tear gas or
pyrotechnic signals are not weapons.”
217
Semiautomatic rifles and shotguns
affixed with grenade launchers thereby fall outside the scope of the Second
Amendment, as well, except that a flare launcher attachment does not inher-
ently change the bearableness of a semiautomatic firearm.
Even a
bsent the common use data, each modified firearm contains a
separate analysis for its use in self-defense or whether the modified feature
is most useful in military service. Just as it is overbroad to assume that the
overarching “assault weapons” category is protected or unprotected, it is
overbroad to assume that the subcategory of feature-based “assault weapons”
are universally protected or unprotected.
c. Large-Capacity Magazine Ban
Although not codified in the same section as the assault weapons ban,
PICA included a ban on the “[m]anufacture, delivery, sale, and possession of
large capacity ammunition feeding devices,”
218
and heavily ties the ammuni-
tion capacity of a weapon to the definition of an assault weapon.
219
720 ILCS
5/24-1.10(a) establishes that a “large capacity ammunition feeding device” is
“a magazine, belt, drum, feed strip, or similar device that has a capacity of,
or that can be readily restored or converted to accept, more than 10 rounds of
ammunition for long guns and more than 15 rounds of ammunition for hand-
guns,” where a “long gun” means a rifle or shotgun.
220
Due to the capacity
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 165
for these ammunition feeding devices mirroring the limits to fixed-magazine
rifles
221
and pistols,
222
the analysis for ammunition capacity limits will apply
to the fixed-magazine firearm inclusions for assault weapons. The ammuni-
tion capacity for shotguns with a fixed magazine is limited to more than five
rounds or any ability to accept a detachable magazine,
223
and as such, shot-
guns could be treated separately. However, the key point for this section is
the limitation to the ammunition capacity of a firearm. Consequently, the am-
munition capacity for a firearm should be considered a variable feature sim-
ilar to an attachment.
Sever
al courts have established, both pre- and post-Bruen, that a maga-
zine is considered an “arm.” The Third Circuit, prior to Bruen, acknowledged
that the possession of arms implies the possession of ammunition.
224
As am-
munition is necessary to the function of an arm, and because some semiauto-
matic firearms require feeding devices such as magazines to function as in-
tended, ammunition feeding devices like magazines are “arms” under the
Second Amendment.
225
Duncan similarly echoes the conclusion that maga-
zines are “arms” with the “essential component” test previously explained.
226
As such, the ammunition feeding device or the firearm with a capacity
to hold a certain amount of ammunition must be a bearable arm. And for
magazine capacity, whether the magazine is within the lawful use of citizens
for self-defense is dependent on the amount of ammunition the magazine can
hold. The standard for magazine capacity typically varies by firearm type, as
“[b]oth the military M16/M4 and the civilian AR-15 use a standard 30-round
detachable magazine. This capacity is larger than standard semiautomatic
handguns (15-18 rounds), bolt-action rifles (5-10 rounds), lever-action rifles
(5-8 rounds), revolvers (5-6 rounds), and typical hunting shotguns (2-5
rounds).”
227
Nonetheless, larger options for detachable magazines do exist.
For example, “[a]ftermarket manufacturers sell 60-round and 100-round
magazines for civilian AR-15s. They come in box and drum versions, the
latter being highly prone to jamming. The weight and size of these larger
magazines can degrade the AR-15’s accuracy by making it more difficult to
handle effectively.”
228
Under this consideration, it is likely that the higher the
capacity of the ammunition feeding device, or the higher the capacity of the
fixed-magazine, the more likely that the weapon will be most useful in mili-
tary service.
166 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
According to the 2021 National Firearms Survey, encountering multiple
assailants in a self-defensive situation is not infrequent, where “30.8% of de-
fensive incidents involved two assailants, and 20.4% involved three or more,
while slightly less than half (48.8%) involved a single assailant.”
229
As such,
it is reasonable that a higher capacity would enhance the defensive value of
the firearm when defending against multiple assailants. When the respond-
ents were asked if they have ever owned a magazine that holds more than ten
rounds, almost half of gun owners responded that they have.
230
It is then es-
timated that approximately thirty-nine million adults in the U.S. have owned
a magazine that holds more than ten rounds, and data suggests an upper-
bound estimate of 273 million rifle magazines that hold over ten rounds and
269 million handgun magazines that hold over ten rounds.
231
The average
rifle magazine respondent owned about 9.6 rifle magazines, and the average
ownership of these magazines consisted of “10 rounds or less (2.4 maga-
zines), 11-15 rounds (1.8 magazines), over 15 rounds (5.4 magazines).”
232
The average pistol magazine respondent, meanwhile, owned about ten hand-
gun magazines, and the average ownership of these magazines consisted of
“10 rounds or less (3.1 magazines), 11-15 rounds (2.5 magazines), more than
15 rounds (4.4 magazines).”
233
As shown, a higher portion of magazines for
both rifles and handguns had a capacity of more than fifteen rounds. Further,
62.4% of respondents who have indicated that they owned magazines that
can hold more than ten rounds listed home defense as their purpose for own-
ership, and 41.7% of the same respondents listed defense outside the home
as their purpose for ownership.
234
Indeed, even in states with magazine capacity bans for magazines over
ten rounds, such as California, at least over a million of these magazines are
lawfully owned.
235
During a seven-day period in which the California ban
was ruled unconstitutional, a period nicknamed “freedom week,”
236
“hun-
dreds of thousands of law-abiding gun owners purchased probably more than
a million of these self-defense tools that had been unavailable for almost 20
years.”
237
In merely one week in one state, the number of magazines that can
hold greater than the proscribed amount far exceeded the 200,000 stun guns
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 167
that showed common use under the Caetano concurrence,
238
and the most
answered purpose for owning the magazines is typically self-defense. There
is little doubt that the overwhelming number of magazines passes the “quin-
tessential” Bruen standard to override any historical tradition of limitations.
Additionally, historical analogies cannot set an ammunition capacity limit
equal to PICA’s limitations. This is primarily because “repeating arms with
greater than 10- and 15-round capacities predate the Second Amendment and
were common by the ratification of the Fourteenth Amendment, Bruen seem-
ingly precludes analogizing to historical restrictions on Bowie knives.”
239
While
the limits set forth under PICA and other ammunition feeding
device capacity bans are too low, there is a sliding scale where the amount of
ammunition a firearm can hold becomes no longer useful for self-defense and
will become more beneficial in unlawful uses or military service. For in-
stance, the box and drum magazines for AR-15 rifles that hold between sixty
to over one hundred rounds of ammunition become cumbersome and limit
the effective use of the firearm in self-defense situations. Further, weapons
with a capacity this high are beneficial for suppressive fire in military service,
as a sixty-round magazine “gives Marines more options when using a long
gun to keep heads down in a fight.”
240
Just where this unprotected limit lies
is unclear and likely changes based on the type of firearm (i.e., a semiauto-
matic rifle versus a semiautomatic shotgun). Ultimately, more data for com-
mon use must be gathered to ascertain the upper limits of ammunition feeding
device capacity.
2. Series- or Model-Based Assault Weapons
The second category of firearms under the definition of “assault weap-
ons” are series- or model-based inclusions. As section (J) denotes, an assault
weapon includes “[a]ll of the following rifles, copies, duplicates, variants, or
altered facsimiles with the capability of any such weapon,” to which the stat-
ute lists 135 individual rifles and includes all AK types, all AR types, and all
Thompson rifle types not necessarily listed.
241
Section (K) utilizes the same
language as (J) but for pistols and specifically lists forty-seven individual
pistols while also including all AK types, all AR types, all MAC types, all
Thompson types, and all UZI types not necessarily listed.
242
Section (L) does
168 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
the same for thirteen shotguns while also including all IZHMASH Saiga-12
types not necessarily listed.
243
Apart from the SKS rifle with a detachable
magazine,
244
these inclusions are not based on features of the firearm, but
solely the specific model. However, the Bruen test requires the examination
of features of the firearm to determine if it is a bearable arm in common use
for the purpose of self-defense.
245
As a matter of logic, it is unreasonable to
accept that the AR-15 is protected by the Second Amendment but argue that
a nearly identical rifle in function and features, although perhaps less popu-
lar, is not protected because the specific model is not in common use. A fire-
arm must be tested based on the capabilities of the firearm itself for self-
defense.
As the
AR-15 rifle was previously used as an illustrative figure for sem-
iautomatic rifles, we will presume coverage of AR type rifles that are not
modified beyond the scope of the Second Amendment. Similarly, there is no
meaningful difference between the AR and AK platforms of firearms in the
eyes of the Bruen test if the specific AK model is limited to semiautomatic
fire and lacks a short barrel or other concealability-enhancing features. In
fact, the AR and AK series are often rivaled and compared with the other.
246
There is often little meaningful difference for the Bruen test with many of the
specifically listed firearms in sections (J) through (L), and the similarities in
firearm models can be analogized to the differences between car models. An
SUV model and variants manufactured by Honda will be similar in the basic
features and purpose as an SUV manufactured by Toyota. Further, a pickup
truck model manufactured by Ford will be similar in basic features and pur-
pose to a pickup truck model manufactured by Chevrolet. Each firearm may
have different benefits, drawbacks, or quality of manufacture, but the differ-
ences in features must fall outside the established Bruen test.
However, there are listed firearms within sections (J) through (L) that
are patently outside the scope of the Second Amendment due to features in-
herent in the model. While this Comment will not exhaustively analyze all
195 specific weapons banned, the point will be illustrated with examples of
firearms that do fall outside of the scope in accordance with prior analysis on
firearm features.
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 169
First, the AK-47S, as found in section (J)(i)(I),
247
is a variant of the AK-
47 rifle in which the “‘S’ variants of the AK series of rifle have a downward
folding stock.”
248
As previously noted, the concealability aspect of this par-
ticular model causes the AK-47S to fall outside of the scope. However, the
standard AK-47 remains within the scope of the Amendment. Further, the
Daewoo AR-110C, as found in section (J)(viii),
249
will fall outside the scope
because it features a collapsible wire buttstock.
250
The Kel-Tec Sub-2000 and
the Kel-Tec SU-16, as found in section (J)(xv),
251
also folds in half for stor-
age purposes,
252
which can enhance concealability in a manner like a folding
stock.
Finally, the last specific firearms that will be discussed in this section
are the Streetsweeper shotgun, as found in section (L)(v),
253
and the Striker-
12, as found in section (L)(vi).
254
As per the ATF:
The Striker-12 and Streetsweeper shotguns are vir-
tually identical 12-gauge shotguns with a spring-
driven revolving magazine. The magazine has a 12-
round capacity. The shotgun has a fixed stock or
folding shoulder stock and may be fired with the
folding stock collapsed. The shotgun with an 18-
inch barrel is 37 inches in length with the stock ex-
tended, and 26.5 inches in length with the stock
folded. The shotgun is 5.7 inches in width and
weighs 9.24 pounds unloaded. The
Striker/Streetsweeper has two pistol grips, one in the
center of the firearm below the buttstock, and one
on the forearm.
255
170 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 45-1
Immediately, the offending features become apparent. As a shotgun
with a bore more than one-half inch and without being “particularly suitable
for sporting purposes” (to which this Comment will not go into the constitu-
tionality of this “sporting purposes” classification), these shotguns are clas-
sified as destructive devices under the NFA.
256
The ATF principally notes
that the weight, cumbersomeness, difficulty in maneuvering to aim, capacity,
folding stock, pistol grips, and appearance are “radically different from tra-
ditional sporting shotguns and strikingly similar to shotguns designed specif-
ically for or modified for combat and law enforcement use.”
257
While “sport-
ing purposes” is not the standard for the Second Amendment, the reasoning
holds that these features indicate the Streetsweeper and Striker-12 are “spe-
cifically designed for military and law enforcement uses.”
258
The weight and
cumbersomeness particularly will diminish the self-defense capacity of the
Streetsweeper or Striker-12 as it is difficult for an individual to operate com-
pared to other shotguns.
259
When mere portions of the Bruen test are applied to the series- or model-
based assault weapons, the differing outcomes are evident. Several of the
named weapons do have features that will exclude the weapon from the plain
text of the Second Amendment or will subsequently fall under the “danger-
ous and unusual” category. However, due to the feature-based focus of the
Bruen test, specifically naming each weapon would be redundant as these
weapons are covered under the feature-based definition of an “assault
weapon,” or could be included through the addition of unprotected features
to the definition.
IV.
CONCLUSION
The classification of “assault weapon” is a fundamentally ineffective
category without a uniform or a practical meaning. The test, as established
by the Court in Heller and refined in Bruen, calls for an analysis based on the
plain text of the Second Amendment and historical analogue. However, the
wide range of firearms that are swept under the definition of an “assault
weapon” shows that firearms with significantly different features will be ei-
ther protected or unprotected by the Amendment, which is compounded by
the increasing modularity of modern firearms. Each arm that is contained
within the definition of an “assault weapon” must therefore be individually
examined to determine whether the arm is commonly used for lawful pur-
poses such as self-defense. And each arm must undergo this process based
on the features that it incorporates. As such, the classification of “assault
2024] TROUBLE BRUEN FOR ASSAULT WEAPON BANS 171
weapon” does not fundamentally fit within the new framework established
by Bruen.