{"id":105598,"date":"2024-11-15T14:48:18","date_gmt":"2024-11-15T20:48:18","guid":{"rendered":"https:\/\/milesfortis.com\/?p=105598"},"modified":"2024-11-15T14:48:18","modified_gmt":"2024-11-15T20:48:18","slug":"105598","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=105598","title":{"rendered":""},"content":{"rendered":"

Analysis: How a Federal Judge Reinterpreted the \u2018Military Arms\u2019 Argument to Protect AR-15s<\/a><\/p>\n

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.<\/p>\n

Last November, a Seventh Circuit Court of Appeals panel declined to enjoin Illinois\u2019 ban on so-called assault weapons and large capacity magazines after ruling that each was too akin to military hardware to be counted as \u201carms\u201d protected by the Second Amendment. Yet just last week, a US District Court judge under the Seventh Circuit\u2019s jurisdiction struck down the exact same ban as unconstitutional.<\/p>\n

In fact, he did so by relying on the circuit\u2019s own words.<\/p>\n

When the Seventh Circuit panel upheld Illinois\u2019 ban, it set a new standard to determine whether a proposed gun law implicates the plain text of the Second Amendment\u2013a key component of the Supreme Court\u2019s Bruen test.<\/p>\n

\u201cIn 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,\u201d Judge Diane Wood wrote in Bevis v. Naperville.<\/p>\n

Wood drew specific attention to the \u201cmilitary use\u201d prong. Relying on dicta from the Supreme Court\u2019s 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 \u201cpredominantly useful in military service\u201d and may be banned.<\/p>\n

Judge Stephen McGlynn came to a different conclusion regarding the \u201cmilitary use\u201d 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 \u201cpredominantly useful in military service.\u201d 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.<\/p>\n

\u201cThe commercially available AR-15\u2019s 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,\u201d he wrote.<\/p>\n

He also argued that rifles acquired for the military are subject to unique standards of \u201cmilitary specificity and rigorous quality-insurance inspections,\u201d 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\u2019s military use standard.<\/p>\n

\u201cThe Court holds that \u2018military use\u2019 refers to weapons that are selected, procured, tested, and issued to military members for use in combat,\u201d McGlynn wrote. \u201cWith this in mind, none of the weapons, magazines, or attachments prohibited by PICA can be called \u2018military-grade\u2019 since they were not issued to the military for use in combat.\u201d<\/p>\n

Furthermore, he noted that the Seventh Circuit previously recognized a \u201cdual use\u201d standard for categories of weapons that have both lawful civilian and military applications in Bevis and its pre-Bruen assault weapons ban rulings.<\/p>\n

\u201cObviously, many weapons are \u2018dual use\u2019: private parties have a constitutionally protected right to \u2018keep and bear\u2019 them and the military provides them to its forces,\u201d Judge Wood wrote. \u201cIn this sense, there is a thumb on the scale in favor of Second Amendment protection. When we refer to \u2018military\u2019 weapons here, we mean weapons that may be essentially reserved to the military.\u201d<\/p>\n

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.<\/p>\n

\u201cEven if arguendo there are no material differences between the M16\/M4 and AR-15, so-called \u2018dual use\u2019 has clearly been established here,\u201d he wrote. \u201cClearly, 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.\u201d<\/p>\n

Ultimately, Judge McGlynn\u2019s 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\u2019s 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.<\/p>\n

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\u2019s \u201cmilitary use\u201d analysis.<\/p>\n

In a statement accompanying the High Court\u2019s denial of cert after the Seventh Circuit upheld Illinois\u2019 ban, Thomas accused the panel of \u201ccontorting\u201d the justices\u2019 past Second Amendment guidance to reach a \u201cnonsensical\u201d conclusion that the Second Amendment does not protect \u201cmilitaristic\u201d weapons like the AR-15.<\/p>\n

\u201cThe Seventh Circuit\u2019s contrived \u2018non-militaristic\u2019 limitation on the Arms protected by the Second Amendment seems unmoored from both text and history,\u201d he wrote. \u201cIt is difficult to see how the Seventh Circuit could have concluded that the most widely owned semiautomatic rifles are not \u2018Arms\u2019 protected by the Second Amendment.\u201d<\/p>\n

It may not matter much to gun-rights advocates in the end whether they\u2019ve found an analytical avenue through the Seventh Circuit\u2019s novel reading of the Bruen test for hardware bans. However, the Court has not been eager to take up an \u201cassault weapons\u201d ban case to this point. So, these lower court battles may continue to take on an outsized importance.<\/p>\n","protected":false},"excerpt":{"rendered":"

Analysis: How a Federal Judge Reinterpreted the \u2018Military Arms\u2019 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\u2019 ban … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,8],"tags":[],"class_list":["post-105598","post","type-post","status-publish","format-standard","hentry","category-courts","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/105598","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=105598"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/105598\/revisions"}],"predecessor-version":[{"id":105599,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/105598\/revisions\/105599"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=105598"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=105598"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=105598"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}