{"id":105666,"date":"2024-11-20T00:12:30","date_gmt":"2024-11-20T06:12:30","guid":{"rendered":"https:\/\/milesfortis.com\/?p=105666"},"modified":"2024-11-20T00:12:30","modified_gmt":"2024-11-20T06:12:30","slug":"105666","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=105666","title":{"rendered":""},"content":{"rendered":"

In the Seventh Circuit, Procedural Red Herrings Threaten the Second Amendment<\/a><\/p>\n

The Seventh Circuit heard oral argument on November 12 in\u00a0Viramontes v. County of Cook<\/em>,\u00a0Illinois<\/em>, 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\u00a0Heller<\/em>, 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 \u2013 indeed, the AR-15 has been the best-selling rifle in the Nation for years. Unfortunately, the Seventh Circuit departed from\u00a0Heller\u00a0<\/em>in a case called\u00a0Bevis<\/em><\/a>\u00a0to 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.<\/p>\n

\u00a0<\/em>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\u00a0here<\/a>). 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.<\/p>\n

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<\/em><\/a>\u00a0and\u00a0Friedman<\/em><\/a>. 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<\/em> and Friedman<\/em> were wrongly decided.<\/p>\n

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\u00a0Bruen<\/em>, arguably wiping out\u00a0Wilson\u00a0<\/em>and\u00a0Friedman<\/em>\u00a0as 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\u00a0Bevis<\/em>, and the parties addressed that decision in short filings.<\/p>\n

<\/p>\n

Summary Judgment Briefing<\/em><\/p>\n

Viramontes and Cook County both filed summary judgment motions. In those motions, the parties differed in how they presented the materials that they claimed supported their affirmative cases. All the key facts at issue in the case are what are called legislative facts \u2013 that is, general facts about the world that are not specific to the parties in the action, such as the overwhelming extent to which law-abiding citizens own semiautomatic rifles and why they own them. The Seventh Circuit has said that legislative facts may either “be incorporated in the argument section of [a] brief” or “in [a] statement of facts.”\u00a0Wiesmueller<\/em><\/a>\u00a0v. Kosobucki<\/em>, 547 F.3d 740, 742 (7th Cir. 2008).<\/p>\n

Viramontes chose the first option. Thus, in the argument section of his summary judgment\u00a0brief<\/a>, he cited legislative fact materials that he claimed entitled him to prevail, including: surveys about the possession of semiautomatic rifles by the Washington Post, the National Shooting Sports Foundation, and William English; information about the criminal misuse of firearms from sources like the U.S. Department of Justice and scholarly publications; and information about the distinction between automatic and semiautomatic fire and the defensive value of the latter from sources like the U.S. Army and scholarly publications.<\/p>\n

Cook County chose the second option, putting in a lengthy statement of material facts setting forth its legislative fact material. Viramontes, accordingly,\u00a0responded<\/a>\u00a0to Cook County’s statement by identifying contrasting legislative fact material. This is expressly contemplated in the local rules, which provide that a response to a statement of material facts may include facts that are “fairly responsive to the asserted fact to which the response is made.” N.D. Ill.\u00a0LR 56.1<\/a>(e)(2). Viramontes’ response to Cook County’s statement of facts is a\u00a0105-page document<\/a>, backed by 105 exhibits spanning over 2,000 pages.<\/p>\n

All of the specific sources referenced in the Seventh Circuit argument on November 12 can be found in these exhibits:<\/p>\n