Yesterday the 7th Circuit Court of appeals issued a decision in the case of Friedman vs. Highland Park, a challenge to a local semi-auto ban that was enacted after Illinois passed it’s concealed carry law. The panel consisted of Chief Justice Easterbrook, Justice Williams (upholding the ban) and Judge Manion dissenting. As you read the opinion a little history is in order; Justice Easterbrook was on the McDonald and during NRA’s rebuttal told Professor Halbrook that he should simply reserve his time as we all know this isn’t the last stop for this case. And despite his displeasure with Heller, he seems to be daring SCOTUS once again to take up a case . . .
At the end of the majority opinion, he writes:
Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices. Given our understanding of existing limits, the judgment is Affirmed.
Justice Easterbrook seems once again to be daring the Supremes to take up a gun case and draw some more lines. Set up a standard of review and be a bit more clear. AS this is not the first time the 7th has voiced or hinted at a displeasure on the Heller ruling.
But for many of us, Heller did draw bright lines and the Chief Judge simply ignored them.
Starting at the bottom of page 62 in Heller we find this little gem:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
Easterbrook’s entire opinion fits neatly is to that passage near the end of Heller. He gives it iaw when as Nick correctly pointed out it’s about feelings:
“If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety.” Friedman — Pg 11.
But he makes other errors is his citing of our nation’s founding:
The features prohibited by Highland Park’s ordinance were not common in 1791. Most guns available then could not fire more than one shot without being reloaded; revolvers with rotating cylinders weren’t widely available until the early 19th century. Semi‐automatic guns and large‐capacity magazines are more recent developments. Barrel shrouds, which make guns easier to operate even if they overheat, also are new; slow‐loading guns available in 1791 did not overheat. And muzzle brakes, which prevent a gun’s barrel from rising in recoil, are an early 20th century innovation.
Heller dealt squarely with this issue is the most direct of ways:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
According to Friedman, if the same test was put to the First Amendment we would be left with nothing more than the printing press and the spoken word. The want to give less protections to firearms designs that are 60-100 years old than the internet which was developed in our lifetime.
Easterbrook does everything he can to cloak the opinion in feelings, and that other firearms are available and an attempt to drag in the dangerous and unusual clause. All in the attempt to hide his rational basis findings. No matter what else he claims the standard of review is, that is what they used to evaluate the case.
This most certainly is not the last stop for this case or this Issue. And the dissent was a spot on dissection of Easterbrook’s ramblings. As a sample Judge Manion wrote:
Here, the court comes not to bury Miller but to exhume it. To that end, it surveys the landscape of firearm regulations as if Miller were still the controlling authority and Heller were a mere gloss on it. The court’s reading culminates in a novel test: whether the weapons in question were “common at the time of ratification” or have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” and “whether law-abiding citizens retain adequate means of selfdefense.
Go on and read the dissent, as it is a point by point takedown of the flimsy rational the majority uses, even taking up some of the points here (this was written prior to reading the dissent). One wonders if the Judge had a TTAG shirt on under the robes when writing it.
We still have the Maryland case to see if there will be a split in the circuits. And the anti-guners will crow for a day or so. But they should be very careful. This ruling was not a point by point takedown of Heller. It was a poorly thought out excuse and attempt to goad SCOTUS in to taking another gun case.
In the end, Justice Easterbrook, just may have done us a favor.