Category: Crap For Brains

Illinois assault weapons ban still in effect after appeals court denies injunction

A federal appeals court Tuesday ruled to keep an Illinois state-wide “assault weapons” ban in effect, denying a request from a business owner who claims the ban is unconstitutional.

The 7th U.S. Circuit Court of Appeals decided to uphold a lower ruling by U.S. District Judge Virginia Kendall, who found the ban to be “constitutionally sound,” despite the request for an injunction, the Chicago Sun-Times reported.

Robert Bevis, a firearms store owner in Naperville, is appealing the gun ban signed into law by Gov. J.B. Pritzker on Jan. 10. He contends it fails to meet a legal standard on what guns can and cannot be banned previously set by the U.S. Supreme Court.

Bevis requested the appeals court to block the ban for himself and other business owners affected by the law so that they can resume the sale of the impacted firearms.

Illinois Governor J.B. Pritzker signed legislation banning the sale of guns classified as assault weapons, rifle magazines capable of holding more than 10 rounds and pistol magazines capable of holding more than 15 rounds in the state on Jan. 10, 2023.

The legislation was introduced in January, six months after a shooting at the Highland Park Fourth of July parade left seven victims dead and wound more than 48 others injured.

The ban includes penalties for anyone who “Carries or possesses… Manufactures, sells, delivers, imports, or purchases any assault weapon or .50 caliber rifle.” Anyone who legally possessed such a weapon was required to register it with state police.

It also includes penalties for anyone who “sells, manufactures, delivers, imports, possesses, or purchases any assault weapon attachment or .50 caliber cartridge.” It also bans any kit or tools used to increase the rate of fire of a semiautomatic firearm.

The legislation also capped the purchase of certain magazines for several weapons.

Gov. Pritzker, a billionaire Democrat, signed the controversial bill shortly after.

The attorneys who are representing Bevis, who owns and operates Law Weapons & Supply in Naperville, Illinois, argue their client has suffered because of the ban and that he may have to close his business.

In the lower court ruling, Judge Kendall ruled that “because assault weapons are particularly dangerous weapons … their regulation accords with history and tradition,” the Chicago Sun-Times reported.

Bevis’s lawyers dispute this interpretation and instead argue earlier Supreme Court rulings clarify weapons must be found to be “dangerous and unusual” to be banned, per the report.

Because certain rifles are “commonly possessed by law-abiding citizens for lawful purposes,” they do meet the legal definition of “not unusual,” and thus cannot be banned, they argued, according to the Chicago Sun-Times.

Several legal challenges remain underway against the state’s ban.

Analysis: A Legal Template for Upholding AR-15 Bans is Emerging

A federal judge upheld Delaware’s “assault weapons” ban this week using reasoning likely to resonate with other courts inclined to reach the same outcome.

On Monday, Federal District Judge Richard G. Andrews, an Obama appointee, found the state’s ban on AR-15s, AK-47s, and similar firearms–along with its ban on magazines that hold more than 17 rounds–is constitutional. He did so despite finding the guns were “in common” use for lawful purposes.

“[I] conclude that the prohibited LCMs, like the prohibited assault long guns, are in common use for self-defense and therefore ‘presumptively protect[ed]’ by the Second Amendment,” Judge Andrews ruled in Delaware State Sportsmen’s Association v. Delaware Department of Safety and Homeland Security.

That probably left a lot of people doing a double-take. But Judge Andrews came to his conclusion after arguing AR-15s and the like weren’t common during the founding era and represented a technological advancement that is responsible for a uniquely modern problem: mass shootings. Because of this, he argued Bruen allowed him to look for historical analogues that show a history of regulation instituted for the same purpose and using the same means.
He ruled there was such a tradition.

“I find that the LCM and assault long gun prohibitions of HB 450 and SS 1 for SB 6 are consistent with the Nation’s historical tradition of firearm regulation,” he wrote. “Plaintiffs have therefore failed to demonstrate a likelihood of success on the merits of their Second Amendment claim.”
He pointed to the proliferation of late 19th Century Bowie knife and Billy club bans, plus later machinegun bans, as evidence governments have previously banned the sale of weapons they believe are associated with especially dangerous criminal behavior. He further argued banning a subset of weapons was a relatively minor burden and one that was similar to his historical examples.

“[B]oth sets of regulations impose a ‘comparable burden,” he wrote. “Indeed, the burden that the challenged regulations impose is slight.”
Judge Andrews isn’t the only, or even the first, one to use this concept to save a ban. District Judge Karin Immergut, a Trump appointee, denied an attempt to block Oregon’s magazine limit under the same basic framework. While she went further and said she didn’t need to do a Bruen analysis at all because ammunition magazines aren’t protected by the plain text of the Second Amendment, she did the analysis anyway, and it came out along the same lines as Judge Andrews’ argument.

It’s likely other courts will adopt this framework as well.
Other courts, namely the Ninth and Fourth Circuits, have previously shown they don’t believe AR-15s or similar guns should be sold to civilians. The old two-step balancing test of the pre-Bruen era was explicitly about whether the argued public safety impact of banning the guns was enough to overcome the infringement on the right of Americans to have them. Any court that upheld an “assault weapons” ban before 2022 essentially said “yes.”

So, given the opportunity to review the law again, it’s fair to think they may want to find a way to reach the same conclusion. That’s especially true if the path to that answer appears to at least plausibly fit within the Supreme Court’s new test.

Of course, Judge Andrews’ reasoning has some serious flaws. For one, it seems to be making the same mistake in the eyes of the Court that the two-step test did: going one step too far.

Reading Heller, McDonald, and Bruen provides the impression that any class of firearms considered to be in “common use” for lawful purposes, such as self-defense, is inherently protected by the Second Amendment and can’t be banned by the government.

“The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense,” The Court  wrote in Heller.

“Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right[…].”

That Judge Andrews finds AR-15s and the other banned guns in common use for the purpose of self-defense and then proceeds on to further analysis is unlikely to be what The Court had in mind. It seems relatively clear SCOTUS doesn’t believe it is possible to ban any gun that is in common use for lawful purposes. So, the detour into comparing modern “assault weapons” bans to 19th Century Bowie knife or Billy club bans will likely be unpersuasive should it ever make its way up to The High Court.

It also suffers from the lack of a limiting principle. Judge Andrews argues that the self-loading, semi-automatic technology found in AR-15s and the other banned guns didn’t become popular until after the Civil War. And their adoption led to the rise of mass shootings (never mind that semi-automatics were becoming common about 100 years before the onset of modern mass shootings).

But there’s nothing in Judge Andrews’ line of reasoning that wouldn’t prevent the same argument from being applied to all semi-automatic firearms or an ammunition magazine of essentially any size. That includes semi-automatic handguns, which the Supreme Court has already ruled can’t be banned.

Still, even if the prospects for success on appeal to the Supreme Court are dim for this argument upholding AR bans, it will likely proliferate in some of the most important circuits because it at least attempts to follow the Bruen steps while still maintaining the bans. And, even if the weaknesses are as serious as they appear, pointing them out will only matter if the Supreme Court actually takes up a case involving them. After all, the two-step test The Court excoriated in Bruen was the defacto review standard on gun cases for a decade because of SCOTUS inaction.

Whatever ends up happening, expect to see Judge Andrews’ legal reasoning pop up anytime a gun or magazine ban is upheld.

Yes, that's one of the main problems I see with it as well.

— Stephen Gutowski (@StephenGutowski) April 2, 2023