Legal Case Analysis
The state filed their reply in opposition to having the Seventh Circuit Court’s denial of an injunction on the Illinois gun and magazine ban overturned.

This was done on the Supreme Court’s emergency docket. Justice Barrett required a response from the state, by 1700 Wed. Which they did file.

The application and reply will be distributed to the Court, which will issue a response in the coming days. I actually expect something by Friday. The court will either grant an injunction or deny the injunction. There maybe an opinion issued with that order.

We live in interesting times.
(2000 words)


In September 2022, Robert Bevis and the National Association of Gun Rights filed suit in the Northern District of Illinois federal District court. This was a challenge of the Naperville Municipal Code “assault weapon” ban.

By December, the District court had stayed the implementation of the “assault weapon” ban.

In January 2023, the plaintiffs (good guys) and amended their original challenge to include the state law, PICA.

In February, District Judge Virginia Kendall stated that … although the plaintiffs have standing to bring this lawsuit, they are unlikely to succeed on the merits of their claim because Naperville’s Ordinance and the Protect Illinois Communities Act are consistent with the Second Amendment’s text, history, and tradition.

Virginia profoundly erred when she ruled:

Under this framework, Naperville’s Ordinance and the Protect Illinois Communities Act are constitutionally sound. The text of the Second Amendment is limited to only certain arms, and history and tradition demonstrate that particularly “dangerous” weapons are unprotected. See U.S. Const. amend. II; Heller, 554 U.S. at 627.

The plaintiffs appealed to the Seventh Circuit court.

When the Seventh Circuit Court’s administrative panel did not respond acceptably, they then appealed to the Supreme Court. The gist, as I remember, was that the Seventh Circuit wasn’t moving expeditiously. When Amy Coney Barrett seemed about to present the case to the Court for a stay pending resolution, the Seventh Circuit suddenly went into overdrive and moved to combine a few other cases and to hear oral arguments on a fast track.

With the Seventh Moving rapidly, the Supreme Court declined to do anything with the request.

Oral Arguments were heard in June. The Seventh Circuit released the final judgement on an injunction pending final judgement on November 3rd.

The plaintiffs then asked for a rehearing en banc. The Bevis plaintiffs requested an injunction pending rehearing and final disposition. The Seventh Circuit denied that on November 22nd.

On the 27th, they filled an application for a writ of injunction, pending final disposition. Justice Barrett requested the state file a reply by the 1700, the 6th. The state filed their response around 1600 on the 6th.

Their Introduction

For the second time this year, and again without attempting to satisfy the requirements for the extraordinary relief sought, applicants ask this Court to enjoin two laws—a state statute and local ordinance—pending further review in the United States Court of Appeals for the Seventh Circuit and any subsequent petition for writ of certiorari. Applicants’ request, which was not made by any other plaintiff in the six cases consolidated below, should be denied for essentially the same reasons that the Court denied their application in May.
Response In Opposition To Renewed Application For Injunction, Bevis v. Naperville, No. 23A486 (U.S.)

Everybody else is doing it and nobody else is doing it is a feeble argument. Not worthy of presenting to the Supreme Court, yet the state of Illinois does. As far as I can tell (IANAL) the “extraordinary relief sought” is a preliminary injunction.

The requirements for satisfying the relief sought are defined by the Winter factors. Likelihood to succeed on the merits, irreparable harm, balance of equates, and public interest. Per Winter if the likelihood of success is met on a civil rights challenge, the rest of the factors are likewise met.

The denial of a core civil right is irreparable harm. Suffering deprivation of a core civil right favors the plaintiff. The public has no interest in enforcing an unconstitutional law.

What the state is saying is: They aren’t going to win on the merits. This is the entire reason the Supreme Court is being asked to intervene.

It is clear at this point that the state is playing a waiting game. They want these cases to drag out as long as possible. So they claim the case isn’t ripe yet. The first reason given is that there is not a circuit split. This is a null argument in Second Amendment challenges.

The good states don’t often write infringing legislation. Since they don’t, there aren’t cases moving up the court system in circuits that haven’t gone rogue. All the bad infringements are happening in places where the circuit courts have been rogue for years.

Beyond that, applicants have not shown that it is indisputably clear that they will prevail on their claim that the statute and ordinance violate the Second Amendment. Nor could they: this Court has not addressed a Second Amendment challenge to a similar law. And, after applying Bruen’s two-step framework, the vast majority of lower courts have declined to enjoin similar laws. It thus is not indisputable that applicants will succeed on the merits of their claim.
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.
Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008)

Notice that the Supreme Court said that the plaintiff must establish he is likely to succeed on the merits, the state is arguing that the plaintiffs must show “it is indisputably clear that they will prevail.” These are different criteria. Criteria the Supreme Court has made clear in prior Opinions.

The state then continues, claiming that the plaintiffs delayed filing, belying their argument that they face exigent circumstances. The actual time of the delay was 5 calendar days. The reality was that the Seventh issued their denial on Wednesday, likely in the late afternoon, the plaintiffs filed with the Supreme Court on the Following Monday.

Two days total. That is less time than it took the state to reply to the motion for emergency injunction.

The state says that since the Supreme Court has never ruled that denial of a Second Amendment protected right is “repairable harm”, that it isn’t.

The States Argument

The state argues that this injunction will disturb the status quo. They neglect to mention that the status quo was no such ban, before the state implemented a gun ban in the middle of the night.

This is so tiring, the state quotes the plaintiffs as saying “the banned firearms are obviously ‘arms’ covered by the plain text” because “all firearms constitute arms”. This is good. Then they say that the plaintiffs got it wrong because Heller said the Second Amendment protected rights are not unlimited.

Let’s put this in perspective. I get a license to drive a car. I now have the permission to drive on public roads. This does not mean that permission is unlimited. I can’t drive at dangerous speeds.

The Second Amendment protects my right to keep and bear arms. It does not protect a “right” to murder somebody with the firearm I carry.

The state applied some good lawyering and language mangling. First, they quote Heller [T]he Second Amendment protects the right to keep and bear arms for the purpose of self-defense. and “the inherent right of self-defense” is “central to the Second Amendment”. Then they go on with Because applicants make no attempt to satisfy this standard, they cannot show that they will indisputably prevail at step one. .

Why is this good lawyering? Because they didn’t actually put words in the Supreme Court’s mouth. They are attempting to change the right to keep and bear arms from an absolute, into a right to keep and bear arms for self-defense. If they can get that one change in Supreme Court doctrine, they will have won for the next few decades, maybe longer.

Of course, the state has to throw in the standard emotional blackmail. Telling the Court how horrible mass shootings are and how this one little infringement should be allowed because the ends justify the means.

Under Caetano, the Supreme Court determined that as little as 200,000 of an arm makes it “in common use”. The state argues that rifle magazines holding more than 10 rounds has not been established.

They then proceed to admit that “only 6.4 million gun owners possess assault weapons.” Well, 6.4 million is > 200,000. That addresses the assault weapon ban. Most AR’s come with more than one magazine. With the cost of magazines being as low as they are, it would not surprise me that there are 5 to 7 magazines for every AR out there.


The way that appeals work, is that all the evidence is gathered at the lower court. From there, the appeals court looks at the record and the arguments of the litigants. No new evidence should be introduced at this stage.

As an example, if the court wants to depend on a common use standard, they need to have “evidence” or it must be “common knowledge” that an arm is in common use. If it is not common knowledge, then it must come in through evidence. That evidence must be introduced in the lower court.

This was part of the issue in Miller. Because there was nobody there representing the plaintiffs (good(ish) guys), there was nothing introduced to bring to the attention that shotguns were used by the military.

The state is depending on the opinion of the Seventh Circuit court for much of their argument. When the state quotes the Seventh Circuit as saying, assault weapons and LCMs “are 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.” they are implicitly claiming that this is “evidence” that AR-15s are machineguns and can be banned.

Maybe this backfires on the state. I would love for the Supreme Court to say, “You are right, Seventh Circuit. They are more like machineguns and military-grade weapons. And they are in common use for lawful purposes. This means that machineguns and all military-grade weapons are in common use for lawful purposes, making any infringement on the ownership to be unconstitutional.”

Or the Supreme Court and look at this and decide that semi-auto means semi-auto, not machinegun.

I am hopeful that the Supreme Court grants the injunction. The best way they could do it is to grant the injunction with no other comment.

The Ephinony

This article has been sitting for a couple of hours as I considered the state’s arguments. The state’s arguments didn’t feel right to me. I couldn’t figure out why. I think I have.

This case was brought to the Supreme Court for an injunction based on the plaintiffs’ claim that the Seventh Circuit court got it wrong. To support their position, the plaintiffs provided arguments as to why they have a strong likelihood of prevailing on the merits.

The entire purpose of the application for an injunction is a belief that the Seventh Circuit got it wrong.

The state’s reply doesn’t present an argument as to why the Seventh Circuit got it right. They make some weak arguments about the plaintiffs not doing enough.

The problem with the state’s argument regarding the plaintiffs is that their argument is circular. “The plaintiffs are not going to prevail on the merits, the Supreme Court isn’t going to grant cert afterward, so the plaintiffs should be denied their application for an injunction”. They then blow off the last 3 Winter factors because the plaintiffs won’t win on the merits.

Their support for many of their arguments/points is that the Seventh Circuit court said so. But that is the question the Supreme Court is being asked to address, did the Seventh Circuit Court get it wrong? Quoting the Seventh Circuit court’s opinion is not supporting that opinion.

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By awa

4 thoughts on “National Association for Gun Right v. Naperville, Application for Injunction at Supreme Cour”
  1. Plaintiffs: The Seventh Circuit got it wrong.
    State: We believe the Seventh Circuit got it right, and to prove it, here’s the Seventh Circuit’s opinion that they got it right. Ergo, they got it right, and didn’t just get it right, they got it SO right, it could even be described as right. Right?

  2. Dumb question: why are the arguments always “a person has a right to…” when the Bill of Rights is more “the government does NOT have the right to…”?

    1. The government has no rights. The government has power and authority. You have rights.
      The government has the power to imprison you. They do not have the authority to do so until you have been proven guilty, beyond reasonable doubt, in a court of law.

      You have the right to a vigorous defense, to be free of torture and other types of intimidation. You have a right to be silent.
      The government can use its powers to violate your rights. It does not have the authority to do so.

      1. I recognize what you are saying, but why are the legal arguments always in terms of “per the Constitution, the people have the right to…” rather than “per the Constitution, the government is prohibited from/not authorized to…”? Is there something that an affirmative right that is easier to argue than a negative (other than no one likes to be told “no”)?

Only one rule: Don't be a dick.

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