BREAKING: 7th Circuit Court Rules Assault Weapons Ban OK Based on Feelings

P1160594

In a 2-1 ruling today, the Federal appeals court for Illinois ruled that the “assault weapons ban” in Highland Park — enacted just days before a new preemption law went into effect banning exactly that kind of law — is constitutional. The majority opinion written by Seventh Circuit Judge Frank Easterbrook relies heavily on the idea of “home rule” for the majority of its rationale, but buried in the text is the true reason why this court believes that infringing on the right to keep and bear commonly used firearms is legal: it makes people feel safe . . .

From the opinion:

[i]f a ban on semi‐automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.

Those of us with a little logic left in our brains understand that there’s a huge difference between feeling safe and being safe. In fact, I wrote an article about that damn near a year ago. What the court is saying is that it’s more important to protect the feelings of a vocal minority of people, giving them the perception of safety than it is to protect the constitutional rights of the citizens. Emotions trump reality.

Expect an appeal. The question is, will the Supremes take the case?

[via FPC]

comments

  1. avatar Preston B. says:

    These “Judges” need replacement.

    1. avatar Bob says:

      + 1
      What is the procedure for getting rid of an activist Federal judge, who is so obviously ignoring the Constitution and the law. The SCOTUS have made it clear in several rulings that “maximum scrutiny” should be used when deciding something restricting or infringing on a Right. This judge used “minimum scrutiny” in this decision.

      1. avatar FedUp says:

        You can ask the same House of Representatives who keep capitulating to the present administration to impeach the judges who rule contrary to the law. Then you simply need the same Senators who approved Lynch for Attorney General to convict them.

        Or you can just sit back and wait for Rinos to sprout wings and fly. Either way, it’s not happening in your lifetime.

      2. avatar Preston B. says:

        For a state judge: Petition the Judicial Inquiry Board.

        The Commission shall have authority after notice and public
        hearing, (1) to remove from office, suspend without pay,
        censure or reprimand a Judge or Associate Judge for willful
        misconduct in office, persistent failure to perform his or
        her duties, or other conduct that is prejudicial to the
        administration of justice or that brings the judicial office
        into disrepute, or (2) to suspend, with or without pay, or
        retire a Judge or Associate Judge who is physically or
        mentally unable to perform his or her duties.
        (f) The concurrence of four members of the Commission
        shall be necessary for a decision. The decision of the
        Commission shall be final.

        http://www.ilga.gov/commission/lrb/con6.htm

        Could possibly work for a federal judge within the state of Illinois.

      3. avatar Deuce says:

        Well there’s no ballot box for a federal judge. Maybe a soap box, if you can get a federal judge removed. I think once you’re a Fed you’re in for life though. So what other boxes does that leave?

        1. avatar Colt Magnum says:

          Pine box?

        2. avatar Ray says:

          The ammo box?

        3. avatar Art out West says:

          I thought the process is impeachment, the same as removing a president.

        4. avatar MarkPA says:

          Impeachment of a Federal judge is pretty tough. You would have to get him on a breach of “good behavior”. The Senate has impeached judges; but it is extremely rare.

          Here, we seem to be looking at a behavior of a ruling inconsistent with the Constitution. That is, consideration of someone’s feelings trumps a fundamental right. Let’s assume for argument’s sake that this is a breach of “good behavior”. Now, you would need a super-majority of the Senate to agree to step outside the legislative branch and check the judicial branch. I doubt that would happen.

        5. avatar Chip Bennett says:

          Impeachment of a Federal judge is pretty tough. You would have to get him on a breach of “good behavior”. The Senate has impeached judges; but it is extremely rare.

          The moment that the federal judiciary carved for itself an extra-constitutional authority of “judicial review” via Marbury v Madison, the federal judiciary became unelected legislators. Because the federal judiciary can enact law by fiat, the federal judiciary must be accountable to the people. Circuit judges should be appointed by the legislatures of the States within a given circuit, and subjected periodic affirmation by popular vote.

          The people MUST have a means to assert our authority over the judiciary.

        6. avatar Pieslapper says:

          Perhaps one with a 7.62 label?

        7. avatar smackdabonurass says:

          Federal courts are considered to be part of the 10 miles square, you’ll never remove a federal judge as they are in the employ of the District of Columbia corporation.

      4. avatar Burley Ole'Bear says:

        “Judicious” application of the stated and intended reason for the 2nd amendment.

    2. avatar tmm says:

      These “Judges” need replacement.

      Once more with feeling.

  2. avatar Javier says:

    Illinois nough said.

    1. avatar pwrserge says:

      Actually, NO. Illinois is one of the few gun control havens where we are steadily winning.

      SBRs – Legal
      CCW – Shall Issue
      Suppressors – (Currently strong support for bills running through both houses.)

      This law was a last attempt by Chiraq to restrict freedom in the state before they were banned from doing so by the rest of the state.

  3. avatar Former Water Walker says:

    Highland Park is a hyper liberal enclave on the north shore. THe people I know who live there probably LOVE this. Pretty good in my southern Cook co. suburb…

  4. avatar Chicago Steve says:

    Um…Cook County judges are pretty f’d up to start with. Google “Cynthia Brim”, and just remember not only was she recommended for reelection by the judge’s association, but was actually re-elected.

    1. avatar Mark N. says:

      For one, Highland Park is not in Cook County, and for two, this is a federal Court of Appeals decision.

      1. avatar JeffR says:

        Might as well toss in third point: this opinion was written by Frank Easterbrook, an extremely well respected (if not legendary) conservative judge who voted with the majority to repeal Illinois’s concealed carry ban. To hear Judge Easterbrook speak in terms of feelings is dismaying in the extreme.

        1. avatar Dan Cox says:

          Easterbrook was NOT on the Panel that ruled in favor of Conceal Carry.

        2. avatar JeffR says:

          Dan, you are correct. I should have been more clear. Easterbrook voted with the majority to deny rehearing that decision on the en banc appeal.

      2. avatar Jiz says:

        Yeah, southern Lake county. Neo-liberal kingdom- was just there on Friday- made my skin crawl just being there. Yuck

  5. avatar michael nieeto says:

    All we need to turn the courts massively in our favor is a Ted Cruz Scott walker or rand pual in the Whitehouse these judges have an agenda that conflicts with human rights. All the gains we have made dispite obama will evaporate to activist judges if we get another d in the Whitehouse

  6. avatar Another Robert says:

    Yes, that’s pretty overtly sloppy reasoning I think. Hopefully some grown-up appeals judges will think so too.

    1. avatar Mark N. says:

      This was a decision by “grown up appeals court justices.” Absent rehearing en banc, the next appellate court is SCOTUS.

      1. avatar Another Robert says:

        En banc was kind of what I had in mind.

  7. avatar Braenen says:

    I believe they need to appeal for an en-blanc review.

    1. avatar JeffR says:

      An en banc appeal is pointless. Easterbrook is one of the 7th Circuit’s most conservative judges, and he wrote the opinion. Without him, an en banc appeal is a dead bang loser.

  8. avatar Garrison Hall says:

    “i]f a ban on ****politically or socially provocative expressions (otherwise known as “microagressions”), including but not limited to writing, speaking, photos and movies, and untoward facial expressions (such as frowning, pouting, and hard stares), reduces the perceived risk of feeling bullied or otherwise threatened and intimidated**** . . . and makes the public feel safer as a result, that’s a substantial benefit.” (Emphasis mine)

    The US Constitution is an uncomfortable truth.

  9. Yeah they will FEEL safe until someone who will obay no gun law comes and shoots them up, because no one can stop them with their own semi auto firearm. This is the left and liberals at their true colors.

    1. avatar John in Ohio says:

      Nope. They’ll still FEEL the same way after. It’s a mental issue, IMHO. Their thought processes don’t square with all of recorded history and present reality.

  10. avatar dh34 says:

    Using that same logic then, it would be perfectly legal exclude Muslims from city limits, you know because of the perception of safety…or young black males…because crime….That has got to be one of the most ridiculous basis for a legal opinion.

    1. avatar TheOtherDavid says:

      My thoughts exactly. I’m a little stunned that they would actually use the “makes the public feel safer ” argument. That sets the stage for a host of civil rights abuses.

      1. avatar Azman says:

        You assume they operate off of standard logic. They don’t, they use their own logic.

    2. avatar SpecialK says:

      Great point.

    3. avatar MarkPA says:

      Absolutely correct; the 7th Circuit just brought back Jim Crow

    4. avatar Jack Burton says:

      That’s actually a good point, I wonder why that didn’t come up in their opinions.

  11. avatar Accur81 says:

    Open confession: sometimes I don’t give a sh!t about what judges say or how they rule. I don’t need them to “balance” my rights against percieved public safety.

    Of course if those same judges want a concealed carry permit, they are put in the fast track – even in anti-gun areas like Cook County, LA, etc. I would be remiss if I didn’t mention that those judges work in buildings guarded by the local sheriff, various armed guards, and metal detectors. I have first hand experience with the courts in LA county. Those judges rule behind a wall of 9mm, .40, and .45 ACP handguns with full-capacity magazines. AR-15s with full capacity mags and 12 gauge shotguns are readily available as backups.

    1. avatar NOCOJeff says:

      Thank you sir for defending our constitution. We sure could use more like you.

    2. avatar John in Ohio says:

      The kin folk said, “Jed, move away from there!” I really don’t know how you tolerate living in Cali. If you weren’t a cop, do you honestly think it would be better or worse for you to live there?

    3. avatar Jay-El says:

      AR-15s? Don’t be silly — they have one purpose and one purpose only: Killing as many people as quickly as possible. Why on earth would the police need them?

      i know that’s true because I heard it from Moms Demand.

      Action, that is.

    4. avatar Mark N. says:

      Don’t forget the bullet proof benches.

  12. avatar actionphysicalman says:

    Judicial deference legislative whimsey strikes again. I don’t get where they get the idea that the bill of rights created rights either.

  13. avatar Mk10108 says:

    Further evidence these judges are concerned with sustain employment by denying lawful self protection to law abiding citizens. The more citizens murdered, raped, robbed, and assaulted keeps a large portion of government employees cash flow rolling in.

    1. avatar DoomGuy says:

      And the more Americans braying to mother.gov for more cops to write the working tax slaves a ticket while they willfully ignore and even support the real criminals.

  14. avatar SouthernPatriot says:

    “Feelings, woo-o-o feeling it,
    woo-o-o, feeling again in my arms
    Feelings.”

    1. avatar Jay-El says:

      I guess that’s one way to get the Beverly Hillbillies theme song out of your head. Kinda strong medicine, though.

    2. avatar Geoff PR says:

      ” feeling again in my arms”

      Not arms, lower intestinal tract.

    3. avatar Daily Beatings says:

      1. avatar John in Ohio says:

        Daily Beatings will continue until morale improves.

  15. avatar Jay in Florida says:

    I never quote but this fits to me any way.
    “Its better to look good then to feel good.”
    How in the heck can judges make a decision of what feels good???

    1. avatar actionphysicalman says:

      I don’t know, but dahling, hmmm, you look marvelous!

  16. avatar Robert W. says:

    The most important thing to read in that entire order is the dissent, it is a great read. Very practical, but strongly in support of the constitution, supreme court rulings, and individual rights. The judge that wrote the confirming order is a quack.

  17. avatar C says:

    at least they’re intellectually honest.

  18. avatar Zach says:

    Easterbrook is a Reagan appointee. He was one of the judges to affirm. The dissenting justice, Manion, is also a Reagan appointee, so at least one of his picks made good….

  19. avatar foo dog says:

    Ow, that decision made my head hurt, the stoopid was so strong…

  20. avatar Christopher Hoffman says:

    “If a ban on semi‐automatic guns and large‐capacity magazines reduces the
    perceived risk from a mass shooting, and makes the public
    feel safer as a result, that’s a substantial benefit.”

    According to whom? Based on what facts?

    What would be a substantial benefit is for the public to accurately assess risk or the lack thereof, not achieve some illusory sense of safety from an imaginary risk. This ruling rather reinforces the mistaken and grossly exaggerated threat from so-called AWs, actually solidifying the public fear by validating the false sense of danger with a court of appeals judgment.

    What disgraceful and intellectually anemic reasoning. What must it be like to live in such a fact free world?

    1. avatar Geoff PR says:

      “What must it be like to live in such a fact free world?”

      They consider it wonderful.

      Duh.

  21. avatar Silver says:

    A ban on leftists in America would make me feel safer, considering they’re the source of the vast majority of violence and oppression. Can we get the boats ready to transport them all to somewhere more in line with their values, like China or North Korea? After all, my feelings trump their rights, right?

    Get used to it, people. The progs won in 2008 and 2012 on the race card, and Hillary’s gonna win on the gender card, mixed with all the usual freeloaders, feelers, and those terrified of freedom who need a fascist in Washington to control everyone’s lives. America is too far gone to come back. We’re one SCOTUS appointee away from total slavery.

    Enjoy the last year and a half of this shell America has become before it’s gone completely. It was a fun ride.

  22. avatar Bruce says:

    I have long questioned the legal reasoning of Judge Frank Easterbrook. In particular, he was the judge who ignored the UCC (Uniform Commercial Code), as well as long existing contract law (as evidenced by the Restatement of Contracts), in regards to shrinkwrap software licenses.

    The problem with UCC II is that a shrinkwrap license is essentially the provision of terms to a contract after the contract has been accepted. This is fine if the two companies are merchants (in that field). But, that isn’t the case with most shrinkwrap licenses – you instead have a merchant and a non-merchant. And, in that case, the merchant cannot change the terms of the agreement after the non-merchant has accepted the contract.

    What Easterbrook did was to completely ignore that, and instead said essentially that everyone does it, so it must be legal. All the big software companies engage in shrinkwrap licenses that impose somewhat similar conditions after the contract has been accepted by the customers. And, that was sufficient for him. The big problem to me has always been that customers don’t really know the contents of what they are agreeing to in a true shrinkwrap license. And, therefore no meeting of the minds on those later added conditions. No matter said Easterbrook.

  23. avatar Bruce says:

    As has been pointed out elsewhere, the much better argued opinion was the dissent. The majority decision seems to essentially ignore the Heller and McDonald opinions, mischaracterizes Miller, and its relationship to Heller and McDonald, ignores the requirement in those decisions for increased scrutiny, ignored the meaning of what increased scrutiny is and what it requires, etc.

    The dissent separated the discussion into restrictions on keeping and bearing of arms, and applied strict scrutiny to the first, and intermediate scrutiny for the second (if I remember correctly). I may disagree with the latter, suggesting that it too should be subject to strict scrutiny. Nevertheless, Miller and McDonald made clear that increased scrutiny is required. Yet Easterbrook essentially applied a lower level of scrutiny to the ordinance, giving the town much more deference than they should have. And, it did some inventive fact finding out of thin air. With increased scrutiny, the burden is on the government entity involved to provide the facts that justify restrictions on the rights to keep and bear arms. This was not done. Instead, the majority made stuff up that was not in the record, since the record apparently would not support the law under increased scrutiny.

    1. avatar Bruce says:

      Let me add to my last post, which I had thought I had edited, but the edits apparently took too long, and were thus lost.

      The majority opinion essentially uses a feeling of safety for many resident of the municipality as justification for the law. But, that is not sufficient under the increased scrutiny required by Heller and McDonald. It is neither a compelling state interest, as required by strict scrutiny, nor, arguably even an important state interest, as required by intermediate scrutiny. And, that sort of justification being sufficient to infringe fundamental constitutional rights would tend to ultimately swallow the constitutional guarantees – notably of the 1st, 2nd, 4th, and 5th/14th Amdts. The Bill of Rights was added to our Constitution to protect minorities from majorities, and Easterbrook’s argument does just the opposite, giving the majority a veto over the methods of self-defense available to the minority.

  24. avatar John Franco says:

    This court is denying people their Constitutional Right! Time to take this to the Supreme Court, and more importantly time to get this liberal “Judge” removed!

  25. avatar Chuck in IL says:

    “Feelings trump reality.”

    Modern day liberalism in a nutshell.

  26. avatar MarkPA says:

    Perhaps this decision is a blessing in disguise. It is so foolish that SCOTUS may consider itself compelled to reverse it lest it be used to justify the obliteration of other fundamental rights based on so light a bases as what someone’s feelings might be.

  27. avatar uncommon_sense says:

    Imagine if the 7th Circuit ruling read like this:

    If a ban on home churches and mega churches reduces the
    perceived risk from a mass revival, and makes the public
    feel safer as a result, that’s a substantial benefit.

    Someone really needs to tar and feather the majority judges. Really. Seriously. No, I am not kidding.

    1. avatar Chip Bennett says:

      Someone really needs to tar and feather the majority judges. Really. Seriously. No, I am not kidding.

      No, you’re not kidding. Nor should you be.

      When (not if) the 9th Circus en banc reverses the Peruta panel decision, and SCOTUS fails to grant cert, what viable, peacable option will the people under the tyranny of the 9th Circuit have to avail themselves of their natural, constitutionally protected right to bear arms?

      1. avatar stateisevil says:

        There is an OC lawsuit. Nichols vs Harris is airtight. They will likely ignore it too. Then you can bring forth the tar.

  28. avatar uncommon_sense says:

    Why does it matter whether a ban actually increases public safety? We would increase public safety if we eliminated freedom of speech since criminal syndicates, terrorists, and enemies of the United States would no longer be able to coordinate attacks. And yet no one is calling to eliminate speech.

    Oh wait, government is talking about suspending free speech during times of “emergency” when they would shut down cellular telephone networks — at their discretion of course. Darn it, I almost had a compelling argument in my first paragraph.

    1. avatar John in Ohio says:

      Shh! You’re scaring the children. 😉

      Freedom might break out and then where would we be, mister?

  29. avatar Don in PA says:

    I thought the title of this post was hyperbole… it wasn’t. LOL

  30. avatar Chip Bennett says:

    [i]f a ban on semi‐automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.

    This is quite possibly one of the stupidest things I’ve ever read – and one of the potentially most dangerous.

    “Perceived” risk is not actual risk. “Feeling” safer is not being actually safer. And in any case, “feelings” are not a compelling government interest.

    What “assault weapons” ban has ever prevented a criminal from obtaining or using a so-called “assault weapon”? What magazine restriction has ever prevented a criminal from obtaining or using the ostensibly restricted magazine?

    More importantly: what is the overall public risk of a mass shooting? What is the overall public risk of an “assault weapon” in a mass shooting?

    The dirty little secret is: firearms-related homicide is not a high-risk threat. 2/3 of firearms-related deaths are suicide. About 2/3 of the remainder involve gang and drug activity. That leaves, what, 4,000 to 5,000 firearms-related homicides that could even potentially be influenced by firearms policies?

    How many of those are committed using so-called “assault weapons”? How many of those are committed using “restricted” magazine capacities?

    There is no compelling government interest for any firearms-related policies, especially for a so-called “assault weapons” ban.

    1. avatar uncommon_sense says:

      Chip wrote

      … “feelings” are not a compelling government interest.

      Oh, but they are … politicians want the votes of those people with those feelings!

      As to the potential efficacy of a ban on military style semi-automatic rifles, remember the important statistic about murder weapons: violent criminals used their hands and feet more often than rifles and shotguns combined. Yes, hands and feet are a more common murder weapon than rifles and shotguns. Whatever threat semi-automatic rifles supposedly represent, hands and feet are a larger threat. Why hasn’t Highland Park banned hands and feet?

  31. avatar DetroitMan says:

    I don’t feel safe with idiots like these making political decisions that affect my rights. Can we get some “reasonable restrictions” on their rights to free speech, assembly, and to vote? It would provide a “substantial benefit” to me and people like me.

  32. avatar some_guy says:

    1000000000% RAGE!

  33. avatar SteveInCO says:

    Maybe this judge was writing a satire of liberalism at the same time and put the wrong paper in the wrong envelope?

    Alas, no.

  34. avatar The Stig says:

    Expect the 2nd Circuit to uphold the ban in NY and CT as well in the coming days as a result of the 7th Circuit ruling. Especially one coming from Easterbrook. The lib justices will smell the blood in the water. SCOTUS is unlikely to take any appeals, but if they did I’m worried it wouldn’t go well.

    If making people feel safer is a substantial reason, expect libs to strengthen gun laws. Thats a big hole to run laws through.

    1. avatar uncommon_sense says:

      The United States Supreme Court seems loathe to take on any firearms cases so I doubt they would take an appeal from the 7th Circuit.

      Even more disconcerting, my initial thought was, “of course the Supremes would overturn the 7th Circuit ruling because it directly conflicts with the Miller and Heller cases” and then I remembered the Heller case where the Supreme Court stated that the ‘Second Amendment is not a right to keep and carry any weapon whatsoever’.”

      Even if the U.S. Supreme Court does agree to take the case, who knows how they would rule?

  35. avatar Glenn says:

    The opinion of these judges are UNCONSTITUTIONAL and thus NULL AND VOID.

    It’s time for Illinois to enact legislation declaring their right to NULLIFY any unconstitutional federal firearms laws.

    Nullify NOW.

    1. avatar uncommon_sense says:

      While your sentiments are all well and good, the law in question was actually a local law … the city of Highland Park banned military style semi-automatic rifles. Thus, the 7th Circuit Court of Appeals failed to overturn the city ban.

  36. avatar TheOtherDavid says:

    I am no legal scholar, but I found the opinion itself a very interesting read. There are some thoughtful comments that show at least a passing knowledge of some firearms issues (an AR-style rifle might be aimed and operated more easily by some individuals in the home environment than some pistols, for instance) but then they put some real head-scratchers in as well:

    “Mexican municipalities bordering American states without assault weapons bans experienced more gun‐related homicides than those bordering California, which had a ban”

    They based part of the opinion on rates of firearms homicide in Mexico? Really? Perhaps Eric and Hillary can do some ‘splainin on that cross-border gun traffic…just sayin.

    I tried to read it in light of the comments above on how the judge writing the opinion is quite conservative. I think that may be the key here – most of the reasons cited for why the opinion came down the way it did note that the Court believes the plaintiff’s arguments were too much, too far reaching, not well supported by recent cases/judicial precedent.

    Courts like to decide on incremental issues and are loathe to make sweeping changes. Some of the issues noted are hogwash – “feelings” as a judicial reason – and I wish that the decision had gone the other way,.but a fuller reading of the opinion at least gives me a better understanding of how they came to their conclusions.

    1. avatar Chip Bennett says:

      “Mexican municipalities bordering American states without assault weapons bans experienced more gun‐related homicides than those bordering California, which had a ban”

      First, this assertion violates a cardinal rule of data analysis: correlation does not prove causation.

      Second, total homicide just might be impacted by crime in Cuidad Juarez, which is one of the most dangerous cities in the world. Does the court really mean to assert that Juarez has more gun-related homicides because Texas doesn’t have an assault weapons ban?

      Third, the Mexican states of Chihuahua (Juarez) and Coahuila (Saltillo) are two of the most violent in Mexico, because of drug cartel turf wars. Does the court really mean to assert that Mexican drug cartel turf wars are more active/violent/criminal because Texas doesn’t have an assault weapons ban?

      Fourth, The court fails to consider the state of Sonora, also bordering Arizona and New Mexico (which, as far as I know, don’t have AWBs), which has fewer homicides than the state of Baja California, which borders California. So, the court’s assertion is factually incorrect.

  37. avatar raynebc says:

    “Emotion trumps reality” sounds like a liberal point of view if ever there was one.

  38. avatar MJ says:

    Feel so sorry for the people of the USA having complete morons like this running and deciding issues for you. Hopefully the tide will chance and wash out to sea the people who want to destroy you from within.. Best of luck..

  39. avatar Terry says:

    So then laws restricting homosexuality, interracial marriage, Muslims, etc also are legal as they have perceived safety benefits..

    Going to be fun watching the appeal of this one.

Write a Comment

Your email address will not be published. Required fields are marked *

button to share on facebook
button to tweet
button to share via email