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.

Easterbrook’s lack of involvement in Viramontes opens the door for the appellate panel to reject his rationale and adopt the reasoning laid out by Judge McGlynn last week. In fact, the plaintiffs in the case (including the Firearms Policy Coalition and the Second Amendment Foundation) filed a letter with the Seventh Circuit this week pointing to McGlynn’s decision as a supplemental authority for the panel to consider.

Cook County State’s Attorney Kim Foxx filed a response on Monday, urging the panel to pay no mind to what McGlynn had to say.

Viramontes cites Barnett v. Raoul as supplemental authority. But a district court decision has weight equal only to its persuasive value, and Barnett has none. Most obviously, Barnett does not even attempt to be faithful to this court’s decision in Bevis, but openly defies it, declaring that none of the historical examples identified by Bevis when applying Bruen’s second step “are as dispositive as the Seventh Circuit argues.” Rather, Barnett simply endorses the position “Judge Brennan stated in his dissent.”

The Judge Brennan that dissented from Easterbrook’s denial of an injunction in Bevis is the same Judge Brennan who’s a part of the panel considering Cook County’s gun and magazine ban, which is another very good sign for gun owners. And despite Foxx’s contention that Easterbrook’s earlier denial should carry far more weight than McGlynn’s recent decision because “this court’s decisions are not mere arguments to be casually jettisoned, but binding precedents that may not be set aside except for compelling reasons,” McGlynn reached his conclusions after a fully-briefed trial on the merits. Easterbrook’s decision to deny a preliminary injunction didn’t establish a precedent. The panel simply concluded the plaintiffs were unlikely to prevail at trial.

Today’s panel is free to give as much weight to McGlynn’s decision as it wants, and given the backgrounds of the three judges who heard Viramontes, I suspect that his opinion from last Friday will receive a lot of consideration. There’s no guarantee that the panel will declare Cook County’s gun and magazine ban unconstitutional, but there’s a much greater chance of that happening without Easterbrook involved in the case.

***UPDATE***

Well, after oral arguments concluded the consensus seems to be that this panel isn’t likely to use Viramontes as a vehicle to strike down bans on semi-autos and “large capacity” magazines.