Category: RKBA

In the Seventh Circuit, Procedural Red Herrings Threaten the Second Amendment

The Seventh Circuit heard oral argument on November 12 in Viramontes v. County of Cook, Illinois, a challenge to Cook County’s ban on semiautomatic rifles like the AR-15, inaccurately labeled as assault weapons. These bans are flatly unconstitutional under Heller, which establishes that the law-abiding citizens of this Nation have a right to possess firearms that are in common use. Semiautomatic rifles undoubtedly are in common use – indeed, the AR-15 has been the best-selling rifle in the Nation for years. Unfortunately, the Seventh Circuit departed from Heller in a case called Bevis to hold that arms that are predominantly useful for military purposes can be banned. But even under that reasoning, semiautomatic rifles cannot be banned. They are common civilian firearms, not military firearms, because they lack the capacity for automatic and burst fire.

 The questioning at the Seventh Circuit, however, did not focus much on the merits of the case. Rather, the panel (consisting of Judges Sykes, Brennan, and St. Eve) took a surprise detour through a series of procedural objections put forward in Cook County’s briefs. (Take a listen here). Judges Sykes and St. Eve appeared to think that Viramontes’ challenge should fail because he didn’t put forward critical evidence about semiautomatic rifles in the district court. Viramontes’ lawyer challenged that notion, including by citing to specific pages in the record containing key pieces of evidence. I decided to dig deeper into the history of the case to see who has the better of the argument. The short answer is that Viramontes does. Indeed, he has built one of the most robust records I have seen by a plaintiff in a case challenging a semiautomatic rifle ban.

Before turning to the record, it is helpful to take a step back to see how we got to this point. When Viramontes filed his case, the constitutionality of a ban on semiautomatic rifles was controlled by two Seventh Circuit precedents, Wilson and Friedman. Viramontes did not initially seek to build a record in the district court because his sole path to victory was to have the Seventh Circuit or U.S. Supreme Court declare that Wilson and Friedman were wrongly decided.

Cook County, however, requested the opportunity to build a record, and the district court obliged. Then, while the case was proceeding in the district court, the U.S. Supreme Court decided Bruen, arguably wiping out Wilson and Friedman as precedent. It was in this context that the parties put forward their evidence and engaged in summary judgment briefing. It was not until summary judgment was fully briefed that the Seventh Circuit decided Bevis, and the parties addressed that decision in short filings.

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The Illinois ‘assault weapon’ ban fails

The Heller, McDonald and Bruen decisions made clear the Second Amendment acknowledges– does not grant–an individual right to keep and bear arms, a right that does not end at one’s property line, and encompasses weapons—not just firearms–in common use for lawful purposes such as self-defense. Government may not erect arbitrary barriers to the exercise of the right, but because the Supreme Court hasn’t absolutely delineated what weapons in “common use” might be, blue states like Illinois remain determined to disarm Americans, the better to crush them when it’s time for the glorious revolution.

 

Graphic: X Screenshot

Among the most common contemporary targets of anti-liberty/gun cracktivists are “assault weapons” and “high capacity” magazines. That there is no such thing as an “assault weapon” deters them not. Neither does the fact magazine capacity restrictions produce no public safety benefit, and most contemporary handguns and rifles feature magazines of greater than their commonly imposed 10 round capacity. Cracktivists have hit on the most common and popular sporting rifle, the AR-15 family, which since the Vietnam War has featured a standard 30 round magazine, as a particular object of hate. Upholding the narrative, Illinois banned “assault weapons” and high-capacity magazines.

An ”assault weapon” is best understood as any scary looking gun cracktivists want to ban. True assault rifles are fully automatic military arms. AR-15s outwardly resemble the military M4 but are like all other semiautomatic arms: they fire one round for each function of the trigger.

Don’t anti-liberty/gun crackvisits know this? Of course they do, but they also know they have unlimited taxpayer funds for lawsuits which normally take years to wend their way to the Supreme Court and in the meantime, they get to deprive Americans of their rights and even jail and ruin some of their political enemies.

Fortunately, U.S. District Court Judge Stephen McGlynn has sided with the Constitution, and overturned the Illinois ban:

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Analysis: How a Federal Judge Reinterpreted the ‘Military Arms’ Argument to Protect AR-15s

After a federal appeals court wrote AR-15s and the magazines that typically come with them out of the Second Amendment, a federal judge has written them back in.

Last November, a Seventh Circuit Court of Appeals panel declined to enjoin Illinois’ ban on so-called assault weapons and large capacity magazines after ruling that each was too akin to military hardware to be counted as “arms” protected by the Second Amendment. Yet just last week, a US District Court judge under the Seventh Circuit’s jurisdiction struck down the exact same ban as unconstitutional.

In fact, he did so by relying on the circuit’s own words.

When the Seventh Circuit panel upheld Illinois’ ban, it set a new standard to determine whether a proposed gun law implicates the plain text of the Second Amendment–a key component of the Supreme Court’s Bruen test.

“In order to show a likelihood of success on the merits, the plaintiffs in each of the cases before us thus have the burden of showing that the weapons addressed in the pertinent legislation are Arms that ordinary people would keep at home for purposes of self-defense, not weapons that are exclusively or predominantly useful in military service, or weapons that are not possessed for lawful purposes,” Judge Diane Wood wrote in Bevis v. Naperville.

Wood drew specific attention to the “military use” prong. Relying on dicta from the Supreme Court’s Heller decision assuring other courts that the ruling did not prohibit regulation of machineguns used by the military (specifically the M16), she posited that civilian AR-15s are nearly indistinguishable from M16s. She concluded, therefore, that they are also “predominantly useful in military service” and may be banned.

Judge Stephen McGlynn came to a different conclusion regarding the “military use” of AR-15s and similar rifles when reviewing the case. While following the analytical structure handed down by the Seventh Circuit, he conducted his own inquiry into what makes a weapon “predominantly useful in military service.” Where the Seventh Circuit panel hand-waved away rate-of-fire differences between AR-15s and military service rifles, McGlynn found cause for highlighting the distinction.

“The commercially available AR-15’s external similarity to the M16 rifle and M4 carbine belies its nature, as its lack of burst or fully automatic fire fundamentally renders it a different weapon,” he wrote.

He also argued that rifles acquired for the military are subject to unique standards of “military specificity and rigorous quality-insurance inspections,” whereas civilian-market AR-15s have no such standards. Ultimately, he concluded, these differences render the AR-15 outside the scope of the Seventh Circuit’s military use standard.

“The Court holds that ‘military use’ refers to weapons that are selected, procured, tested, and issued to military members for use in combat,” McGlynn wrote. “With this in mind, none of the weapons, magazines, or attachments prohibited by PICA can be called ‘military-grade’ since they were not issued to the military for use in combat.”

Furthermore, he noted that the Seventh Circuit previously recognized a “dual use” standard for categories of weapons that have both lawful civilian and military applications in Bevis and its pre-Bruen assault weapons ban rulings.

“Obviously, many weapons are ‘dual use’: private parties have a constitutionally protected right to ‘keep and bear’ them and the military provides them to its forces,” Judge Wood wrote. “In this sense, there is a thumb on the scale in favor of Second Amendment protection. When we refer to ‘military’ weapons here, we mean weapons that may be essentially reserved to the military.”

Though Judge Wood specifically had shotguns and semi-automatic handguns in mind, Judge McGlynn found that AR-15s and similar rifles could just as easily fit the bill.

“Even if arguendo there are no material differences between the M16/M4 and AR-15, so-called ‘dual use’ has clearly been established here,” he wrote. “Clearly, even though handguns are useful and are used in military service, they are clearly protected by the Second Amendment. However, as noted above, AR-15s are distinct from their military counterparts.”

Ultimately, Judge McGlynn’s analysis represents a response to an argument that has become increasingly common among federal appeals courts looking for rationales to uphold state assault weapon bans despite Bruen’s demanding standards. It could serve as a blueprint for gun-rights advocates as they continue challenging similar bans in courts that are primed to rule against their position.

At the same time, it may not be an argument that is necessary for very long. The Supreme Court has an opportunity to take up an assault weapon ban case very soon, one that many gun-rights advocates believe is their best opportunity yet to have the justices weigh in. Should they do so, Justice Clarence Thomas, a member of the likely majority in any hardware ban case, has already tipped his cap regarding his views on the Seventh Circuit’s “military use” analysis.

In a statement accompanying the High Court’s denial of cert after the Seventh Circuit upheld Illinois’ ban, Thomas accused the panel of “contorting” the justices’ past Second Amendment guidance to reach a “nonsensical” conclusion that the Second Amendment does not protect “militaristic” weapons like the AR-15.

“The Seventh Circuit’s contrived ‘non-militaristic’ limitation on the Arms protected by the Second Amendment seems unmoored from both text and history,” he wrote. “It is difficult to see how the Seventh Circuit could have concluded that the most widely owned semiautomatic rifles are not ‘Arms’ protected by the Second Amendment.”

It may not matter much to gun-rights advocates in the end whether they’ve found an analytical avenue through the Seventh Circuit’s novel reading of the Bruen test for hardware bans. However, the Court has not been eager to take up an “assault weapons” ban case to this point. So, these lower court battles may continue to take on an outsized importance.

Seventh Circuit Hears Oral Arguments in ‘Assault Weapon’ Ban Challenge

No, not the challenge to the gun and magazine ban that U.S. District Court Judge Stephen McGlynn found unconstitutional last Friday. The almost half-dozen lawsuits taking on the Protect Illinois Communities Act will be heard by the Seventh Circuit as well, but not for several months. Instead, today’s oral argument is in a case called Viramontes v. Cook County, which is seeking to undo the “assault weapons” ban first put in place by Cook County lawmakers in the early 1990s.

The ordinance, which was revised in 2006 and again in 2013, makes it “unlawful for any person to manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire, carry or possess any assault weapon or large capacity magazine in Cook County.” Earlier this year U.S. District Judge Rebecca Pallmeyer, a Clinton appointee, ruled in favor of Cook County and dismissed the claims brought by the plaintiffs.

Pallmeyer’s decision was based almost entirely on the Seventh Circuit’s denial of an injunction in yet another challenge to a semi-auto ban in Illinois. In Bevis v. Naperville, the appellate court ruled that both local and statewide bans on so-called assault weapons and large-capacity magazines are likely to withstand constitutional scrutiny because the arms in question are  “more like military weapons than those useful for self-defense.”

That decision was authored by Judge Frank Easterbrook; a Reagan appointee with a long history of upholding Illinois gun laws. In 2009, Easterbrook ruled that Chicago’s ban on handguns didn’t violate the Second Amendment because the Second Amendment’s protections didn’t extend to state and local laws. In 2015 Easterbrook ruled in favor of Highland Park, Illinois and its ban on “assault weapons”, arguing that even if arms that were in common use were prohibited, gun owners had other options available to them if they wanted a firearm for self-defense.

But Easterbrook is not a part of the three-judge panel that’s considering the constitutionality of Cook County’s gun and magazine ban today. Instead, Judge Diane Sykes (who’s authored a good ruling for gun owners), Judge Michael Brennan, and Judge Amy St. Eve will determine whether the county’s prohibition on modern sporting rifles and ammunition magazines that can hold more than ten rounds violate the Second Amendment.

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