CHICAGO - Senior U.S. District Judge Phil Gilbert of Benton correctly upheld taxation and registration of rifles with short barrels, Seventh Circuit appellate judges ruled on March 10.
They denied an appeal of Jamond Rush who pleaded guilty of possessing an unregistered firearm but reserved a right to challenge his indictment.
Prison bureau records show his custody ended last May.
His counsel Talmage Newton of St. Louis claimed the section of the National Firearms Act that pertained to Rush’s weapon violated the constitutional right to bear arms.
He claimed the section conflicts with a Supreme Court decision from 2022 in New York State Rifle and Pistol Association v. Bruen.
The Bruen decision broadened Second Amendment protection and lawsuits across the land have begun to test its strength.
In Rush’s case assistant U.S. attorney Tom Leggans argued that Bruen didn’t affect a 1939 decision, U.S. v. Miller, which upheld a similar regulation in the National Firearms Act.
Newton claimed the Miller decision didn’t apply because it involved a short barrel shotgun and Rush possessed a short barrel rifle.
Gilbert agreed with Leggans and concluded that Bruen “had no impact on the constitutionality of regulating the receipt or possession of an unregistered short barreled rifle.”
He found Rush’s conduct wasn’t covered by the plain text or historical understanding of the Second Amendment.
Seventh Circuit Judges Joshua Kolar, Candace Jackson-Akiwumi and John Lee affirmed him.
“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," Kolar wrote.
“Both are long guns with shortened barrels which are dangerous because they are more powerful than traditional handguns yet are easier to conceal.
“Weapons like machine guns that are not typically possessed by law abiding citizens for lawful purposes remain unprotected.”
He found licenses designed to ensure applicants are responsible citizens including licenses that impose some pecuniary cost are categorically different from weapon bans.
He found Bruen required a second step to determine whether a regulation is consistent with the nation’s historical tradition.
He found that since Bruen, the Seventh Circuit acknowledged that short barrel shotguns fall on the unprotected side of the line because they aren’t in common use for a lawful purpose.
“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," he wrote.
He found registration and taxation are not infringements on Second Amendment rights.
He found registration could be read as a condition of lawful possession.
“Since before our founding, continuing through the lives of the founding generation and even lasting until today there has stood an unbroken line of common sense regulations permitting our duly elected representatives to limit weapons where the likely use for the weapon is a violent breach of the peace," he wrote.
He found the law “simply makes those who desire a weapon likely to breach the peace register that weapon and pay a tax.”