Some in the 2A community are, once again, angry and upset with Attorney General Pam Bondi and the Department of Justice. At issue is a brief filed by Solicitor General John Sauer, urging the Supreme Court to deny certiorari to Rush v. United States, a challenge to the inclusion of short-barreled rifles in the National Firearms Act.
SBRs and the NFA have been a hot topic since Joe Biden’s ATF reclassified pistols with stabilizing braces as short-barreled rifles. This meant owners of these pistols had to register them with the federal government, pay a $200 transfer tax, go through the approval process, and comply with all the NFA rules for owners of NFA firearms.
The Biden reinterpretation of short-barreled rifles was shot down by the Fifth Circuit Court of Appeals. However, the vacature was based on the ATF’s violation of the Administrative Procedures Act; the Second Amendment issues weren’t really addressed.
The Rush case is on appeal from the Seventh Circuit, which relied heavily on the Supreme Court’s 1939 ruling in United States v. Miller, a case involving a couple of bank robbers and a sawed-off shotgun.
What I find curious is the Seventh Circuit’s choice of precedent. Sonzinsky v. United States would have been a better choice. Not only did the Supreme Court uphold the NFA as a revenue measure, it took great pains to show a tax could have a regulatory effect yet remain a tax without any Second or Tenth Amendment implications.
Justice James MacReynolds’ majority opinion in Miller referred to Sonzinsky:
“Considering Sonzinsky v. United States and what was ruled in sundry causes arising under the Harrison Narcotic Act, the objection that the Act usurps police power reserved to the States is plainly untenable.”
It may be that the Seventh Circuit cited Miller because of the Supreme Court’s discussion of sawed-off shotguns:
“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.”
The Seventh Circuit reasoned that short-barreled rifles were like short-barreled shotguns: Not protected by the Second Amendment. The irony here is use in or suitability for militia service as a standard. While short-barreled rifles and shotguns might not make the grade, the right to keep and bear machine guns would easily pass constitutional muster. Gotta love the very clueless Seventh Circuit.
From the outside, it’s impossible to be absolutely sure of the DOJ’s motives in filing its brief in Rush v. United States. The smart money is on a desire to avoid a repeat of Rahimi v. United States and Chief Justice John Roberts’ Bruen-diluting majority opinion.
Merrick Garland, Biden’s attorney general, pushed hard for the Supreme Court to hear Rahimi instead of similar cases because of Zackey Rahimi’s record and history of violent behavior.
Jamond Rush is another Rahimi. The details surrounding his arrest will ensure a chilly reception in any court and place our recent wins – and our hopes for Supreme Court action in the 2025-2026 term – in jeopardy.
Massachusetts Supreme Court: ‘Self-Defense’ a Defense in ‘Accidental Killing’
About Bill Cawthon
Bill Cawthon first became a gun owner 55 years ago. He has been an active advocate for Americans’ civil liberties for more than a decade. He is the information director for the Second Amendment Society of Texas.
