7th Circuit: That Which is not Explicitly Allowed by Heller Can be Forbidden

Judge Frank Easterbrook (courtesy Wikipedia.org)

As Nick reported earlier, the Seventh Circuit Court of Appeals upheld a municipal ordinance in Highland Park, Illinois that bans so-called “assault weapons” as well as semi-automatic magazines with a capacity greater than ten rounds, in the matter of Friedman and Illinois State Rifle Ass’n v. City of Highland Park, Illinois. I had a few minutes to take a look at the opinion written by Judge Frank Easterbrook and oh, my, it’s a bit of a mess….

The Highland Park ordinance at issue (§136.005 of the City Code) specifically prohibits:

possession of assault weapons or large‐capacity magazines (those that can accept more than ten rounds). The ordinance defines an assault weapon as any semi‐automatic gun that can accept a large‐capacity magazine and has one of five other features: a pistol grip without a stock (for semi‐ automatic pistols, the capacity to accept a magazine outside the pistol grip); a folding, telescoping, or thumbhole stock; a grip for the non‐trigger hand; a barrel shroud; or a muzzle brake or compensator. Some weapons, such as AR‐15s and AK‐47s, are prohibited by name.

Judge Easterbrook spends some time in the opinion examining District of Columbia v. Heller, but quickly waves it away, hanging his hat on the fact that the Heller court acknowledged that prohibition against the carrying of “dangerous and unusal weapons” were not necessarily unconstitutional. From there, the Judge rejects the idea that the ‘common use’ test referenced in United States v. Miller has any applicability at all:

[R]elying on how common a weapon is at the time of litigation would be circular to boot. Machine guns aren’t commonly owned for lawful purposes today because they are illegal; semi‐automatic weapons with large‐capacity magazines are owned more commonly because, until recent‐ ly (in some jurisdictions), they have been legal. Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.

The Seventh Circuit then goes on to eschew intermediate scrutiny, a relatively lower standard of scrutiny of government action, which other Circuits have used to uphold restrictive laws on firearms in the past. And here, the Seventh Circuit jumps into a bit of a rabbit hole, in my opinion:

[I]nstead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law‐abiding citizens retain adequate means of self‐defense….

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.

Some of the weapons prohibited by the ordinance are commonly used for military and police functions; they therefore bear a relation to the preservation and effectiveness of state militias. But states, which are in charge of militias, should be allowed to decide when civilians can possess military‐grade firearms, so as to have them available when the militia is called to duty.

Got that? Semi-automatic rifles hadn’t been conceived of in 1789, so they weren’t intended to be protected by the second amendment. Okay, sure, the concept of using long guns like rifles in army and militia service *did* exist at the time, but even though the “assault weapons” banned here (especially the AR-15, which is called out by name in the ordinance) are analogous to the kinds of rifles in regular military service today, this somehow doesn’t matter to the Seventh Circuit.

Why? Because states can apparently regulate “militia” weapons however they want. And since the law-abiding retain “adequate means” of self-defense, it’s all good. (I’m tempted – and yet afraid – to wonder if the availability of flintlock pistols would be all that’s needed for “adequate means” of self-defense to exist in the Court’s opinion.)

This is the sort of reasoning that would lead to government regulation of nytimes.com because at the time of ratification, the idea of electronic computers, modems, and the internet hadn’t even been conceived of, let alone invented yet, and since the Internet was a DARPA creation anyway, the government should be able to do whatever it wants with it.

How did the Seventh Circuit decide that pistols alone were sufficient? The Court essentially says that since the Heller and McDonald v. Chicago decisions didn’t define the entire scope of the Second Amendment, it’s just going to assume that everything the Supreme Court didn’t explicitly permit is up for grabs:

McDonald holds that the Second Amendment creates individual rights that can be asserted against state and local governments. But neither it nor Heller attempts to define the entire scope of the Second Amendment—to take all questions about which weapons are appropriate for self‐defense out of the people’s hands. Heller and McDonald set limits on the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self‐defense is through the poitical process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions.

Judge Easterbrook is a highly-respected jurist, and I spent a bit of time in law school studying his cases and articles. But this decision just appears unserious to me. I had to take a break when I got to (I guess what was supposed to be) a tongue-in-cheek reference to James Bond’s preference of handguns over rifles. And as Nick pointed out, there’s the curious implication that making the public feel safer somehow trumps an enumerated right. (What sort of implications would the doctrine that feelings of safety trump rights have had during the Civil Rights movement in the 1950s and 60s?)

Judge Daniel Manion‘s dissent charts a different course.

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 self- defense.” Ante at 7–8.

The problem is Heller expressly disclaimed two of the three aspects of this test; and it did so not as a matter of simple housekeeping, but as an immediate consequence of its central holding. It held as “bordering on the frivolous” arguments that recognized a right to bear only those arms in existence at the time of ratification. Heller, 554 U.S. at 582 (“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.”).

Likewise, it expressly overruled any reading of the Second Amendment that conditioned the rights to keep and bear arms on one’s association with a militia. Id. at 612. (“It is not possible to read this as discussing anything other than an individual right unconnected to militia service.”). For this reason, there is no way to square this court’s holding with the clear precedents of Heller and McDonald.

Friedman is just the latest in a series of decisions that appear to be designed to deliberately defy the letter and spirit of the Heller decision. Since Heller, we have witnessed a massive effort on the part of judges, mayors, governors, and federal officials to undermine and ignore a Supreme Court decision on civil rights that we haven’t seen since Brown v. Board of Education of Topeka, Kansas. From Highland Park to Hawaii, politicians determined to fight any expansion of protections for the Second Amendment.

We have our work cut out for us. The fight never ends.

comments

  1. avatar Joe R. says:

    The Heller Opinion – yep, devoid of mention of the 7th Circuit Court of appeals.

    Case closed beotch.

  2. avatar Almost Esq. says:

    I hope SCOTUS grants cert to overturn this rag of an opinion. This judge’s words are without merit. He is no better than an outlaw since he has no respect for the highest law in the land, the Constitution.

    1. avatar BDub says:

      I actually agree with the Judge with regards to the “common use” test being B.S., for the very reason he cites. But that crap about arms in existence at the time of ratification – well, lets just say that “unserious” is entirely to kind. I would say it does a great deal to disrespect his office and the people it serves.

  3. avatar ThomasR says:

    Remember, judges are the only ones that have the years of training, experience and just sheer overwhelming and daimond sharp intelligence to interpret the obscure and hard to understand sentence, “The PEOPLES (not militia) right to keep and bear arms shall not be infringed”.

    1. avatar IdahoPete says:

      If I may summarize this learned jurist’s opinion:

      “These icky black guns scare me and I don’t like them! SO THERE! SHUT UP!”

      I believe that captures the essence of his legal reasoning.

  4. avatar Roscoe says:

    Twisted logic to reach a pre-ordained conclusion.

    Easterbrook Is off his rocker. He should get his tired senile trending ass back on his rocker…maybe in his den at home…and stay away from high benches, robes and gavels.

  5. avatar great unknown says:

    For an interesting fisking of the decision by a well-known academic lawyer:

    http://joshblackman.com/blog/2015/04/29/judge-easterbrook-dares-the-justices-on-the-2nd-amendment/

    Easterbrook seems to be angling for an appointment to SCOTUS is Obama manages one.
    And he’s far from senile, just arrogant.

    1. avatar Roscoe says:

      It’s Easterbrook’s arrogant circuitous fantastical logic I was making every effort to insult. God help us 2A Keepers and Bearers if he ever were to be appointed and confirmed to the USSC.

      BTW, good article on Josh Blackman’s Blog; a little long, but thorough.

  6. avatar uncommon_sense says:

    As much as I despise the 7th Circuit’s ruling, Easterbrook actually points out some of the errors evident in the verbal gymnastics of the Heller decision.

    The tortured “reasoning” coming out of our courts never ceases to amaze me. The words of the Second Amendment do not allow for “reasonable restrictions” like the Fourth Amendment allows for “reasonable searches”. The wording of the Second Amendment is simple and clear. Whenever someone needs more than a couple sentences to explain something, the explanation is a con job.

    1. avatar Roscoe says:

      Yes, exactly!

      All of it, particularly the last sentence.

  7. avatar BIG AL says:

    It never ceases to amaze me how politicians always use the term “hunting” when referring to the 2A. I don’t think anyone can stretch that to have anything to do with hunting, although the BATF has caused that bit of BS.

  8. avatar Erik says:

    So I live in Aurora, Illinois and we have a similar ordinance that bans “assault weapons” (section of municipal code defining assault weapons below). Considering the B definition in the GCA, 18 U.S.C. § 921(a)(3), could you not simply remove the upper receiver/attached parts and either the pistol grip or stock on a standard AR style rifle to be in complience since the parts themselves are not part of a firearm, and are not by themselves illegal?

    Aurora munipal code assault weapon definiton from code 29-49:
    Any semiautomatic rifle that has a fixed magazine that can hold more than eight (8) rounds or an ability to accept a detachable magazine and has at least two (2) of the following:
    1.A folding or telescoping stock;
    2.A pistol grip that protrudes beneath the action of the weapon and which is separate and apart from the stock;
    3.A bayonet mount;
    4.A flash suppressor;
    5.A barrel with a threaded muzzle;
    6.A grenade launcher.

    GCA, 18 U.S.C. § 921(a)(3) defines the term “firearm” to include the following:
    …(B) the frame or receiver of any such weapon…

    1. avatar HolmiumST says:

      Well, I’m a Californian so we don’t even get to count the features (Zero feature is allowed in here).

      But here in CA, the features don’t count as long as the weapon is not operable as far as I understand.

      Obviously, this is not a legal advise.

    2. avatar LarryinTX says:

      That sounds like the original AWB from Bill Clinton. If nobody told you, the law was stupid. It also banned the AR-15 by name, before it even went into effect the name had been changed. Duh! After that, manufacturers ground off the bayonet lug (cost 25 cents) and removed the flash suppressor (cost zero), then continued selling them to all comers. Functionally identical. At the time, we did not have all manner of gas blocks available, and nobody bothered to manufacture a front sight/gas block without the bayonet lug, they just, literally, took a grindstone and removed the lug. A bayonet, BTW, can only be mounted to 20″ and 14.5″ barrels, but due to the vast number of bodega robberies at bayonet point, it had to be done.

    3. avatar LarryinTX says:

      Oh, and supposedly you couldn’t use 20 and 30 round mags, which were no longer for sale, except a hundred million or so were already floating around, and no one paid any attention! When you ordered a new upper, you simply specified whether you wanted the bayonet lug/flash suppressor or not. YOU were supposed to know whether your gun was pre-ban or post-ban, most people paid no attention and ordered what they preferred. As I may have mentioned, the law was stupid. OTOH, bayonet murders dropped to zero, from a previous high of, uh, zero. So it was all worthwhile.

  9. avatar DoomGuy says:

    I’m so sick of “judges” that have never held a gun in their life telling me what I can and can’t own.

    The justice system in this country is a joke. It’s all just a self serving government empowerment scam.

  10. avatar STan says:

    This judge is an egregious ignoramus. Let’s look a the first amendment too with this logic. Since radio, television and the Internet were not known at the time of the adoption of the constitution, then the first amendment does not apply to those media. Brilliant no?

  11. avatar Charlie says:

    “Anything that is not compulsory is forbidden!”

    I think I heard that one before.

    Charlie

  12. avatar lurker_of_lurkiness says:

    strict scrutiny? whats that?

  13. avatar Anonymous says:

    I’ve decided to finish ten more 80% lowers (de Leon ghost guns) after reading this article .

    One of them needs to be mailed to Judge Easterbrook.

  14. avatar Geoff PR says:

    “One Response to 7th Circuit: That Which is not Explicitly Allowed by Heller Can be Forbidden”

    That’s odd.

    Miller (cited,*cough*, in Scalia’s decision) held that the sorts of weapons protected are those “in common use at the time.”

    Law enforcement’s most common handguns are Glocks of standard capacity (and similar striker-fired weapons).

    Law enforcement uses AR platform rifles as their most common rifle.

    Law enforcement uses pump shotties like the Mossburg 500 as their most common cruiser shotgun.

    WTF?

    Ray Charles (R.I.P.) could see that!

    What am I missing on this?

  15. avatar Mike Weisser says:

    In your article you state:
    This is the sort of reasoning that would lead to government regulation of nytimes.com because at the time of ratification, the idea of electronic computers, modems, and the internet hadn’t even been conceived of, let alone invented yet, and since the Internet was a DARPA creation anyway, the government should be able to do whatever it wants with it..

    In fact, if you read Heller, you will note that Scalia specifically mentions US versus ACLU in which the Court held that communications over the internet were covered by the 1st Amendment, even if the technology of the internet didn’t exist in 1789. And he said this to counter the argument that just because a certain weapon didn’t exist in 1789 didn’t mean it couldn’t be covered by the 2nd Amendment. After all, the atom bomb didn’t exist in 1789 either. Does that mean that I can walk around with one to protect myself against an ISIS invasion?

    1. avatar Geoff PR says:

      “After all, the atom bomb didn’t exist in 1789 either. Does that mean that I can walk around with one to protect myself against an ISIS invasion?”

      As a W78 (a Teller-Ulam design multi-stage thermonuclear weapon of about 350 kt yield) weighs about 700 lbs (that’s 317 kg for any Euro-Trash reading this), an overweight EXPLETIVE DELETED like yourself is unable to “walk around with one to protect myself against an ISIS invasion.” as you put it. (Much less carry concealed, if you should desire).

      Besides, you can’t afford to pay for the magazine required for safe storage or pay the salaries of the qualified personnel necessary to properly service and secure from theft (that the ISIS jihaddi would oh-so-very-much love to steal) a device like that.

      EXPLETIVE DELETD

      Yours,

      Mr. Niceguy

    2. avatar Anonymous says:

      OMG! it’s Mike the (fake) gun guy!

      Great you came over for a discussion! You should come more often.

      In fact, if you read Heller, you will note that Scalia specifically mentions US versus ACLU in which the Court held that communications over the internet were covered by the 1st Amendment, even if the technology of the internet didn’t exist in 1789. And he said this to counter the argument that just because a certain weapon didn’t exist in 1789 didn’t mean it couldn’t be covered by the 2nd Amendment. After all, the atom bomb didn’t exist in 1789 either. Does that mean that I can walk around with one to protect myself against an ISIS invasion?

      First of all, lets think about it for a moment. If you were willing to vaporize millions of people in a flash of light, why would you care that it’s against the law to make a weapon that vaporizes people? Wouldn’t possession of a nuclear bomb be a much lesser crime than vaporizing millions of people?

      So honestly, I seriously don’t see a law forbidding ownership or construction of a nuclear weapon deterring anyone from building one. You wouldn’t even be able to build one in the US without people noticing anyways. What I do see deterring people from building one is:

      –> Owning a large laboratory/factory filled with nuclear engineers, electrical engineers, mechanical engineers, physicists, containment systems, processing equipment, refining equipment.
      –> Obtaining the information necessary to construct a nuclear bomb.
      –> Importing yellowcake uranium from Australia to process the material
      –> Logistics involved with transporting the yellow cake uranium from the port to your facility.
      –> Obtaining the materials involved with construction of the nuclear bomb. (refining the yellow cake to bomb grade U235 (centrifuge, etc)).
      –> Processing heavy water, purifying deuterium/tritium, purchasing/procuring pure tungsten, beryllium, etc, used in the construction.

      By the time one has done the above, everyone will know company “X” is making a nuclear bomb. Everyone will be questioning their intent with that bomb. And even if there is a remote possibility that people don’t know – it’s not going to matter. If their intent is to use it somewhere to kill millions of people – nobody is going to bother themselves with the consideration of what some piece of paper says about it.

      The nuclear bomb argument is really weak sauce. I was really hoping for something more.

      To answer your question – yes. This is what it says:

      “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”

      I would have a lot more respect for you guys and your predecessors if you had revised the 2nd to say:

      “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms (except nuclear related explosives), shall not be infringed”

      than to pass endless laws that directly violate the constitution.

      1. avatar Geoff PR says:

        The easiest nuke to construct is *very* simple, has a lousy yield (perhaps a very few kt yield), and is very dirty.

        Buy or steal fissile material enough for a critical mass.

        Calculate the necessary mass. Machine two pieces, an outer cylinder of roughly coffee can dimensions, and a smaller solid cylinder that you will drop into the larger to create your critical mass.

        Find a multi-story building in a city you want to destroy. Install a pipe large enough to snugly fit the larger cylinder at the bottom. At the top of the pipe center the smaller cylinder so it will drop cleanly into the center of the lower larger cylinder. Rig a way to release the smaller cylinder when you want *boom*.

        Light fuze, get away. (so to speak).

        A small fraction of the fissile material will do its thing before being blown apart by the explosion, a process known as ‘dilution’. That’s where your nuke bomb turns into a nasty dirty bomb. Pack a bunch of cobalt metal around the lower cylinder if you’d like really nasty, extra-dirty Cesium-60 fallout.

        Prepare for the political fallout you will generate.

  16. avatar Bob108 says:

    There is a.lot of twisted logic used in that ruling to justify their defiance of a Supreme Court ruling. Too bad courts that do this crap cannot be compelled to compensate We The People for legal costs. This is another event that tells me that most federal court judges cannot be trusted, that they are instruments of tyranny.

    1. avatar Timmy! says:

      “This is another event that tells me that most FERAL court judges cannot be trusted, that they are instruments of tyranny.”

      Fixed it for you.

  17. avatar Sian says:

    Know what was also common at the time of ratification in private ownership for the purposes of militia use?

    hand grenades, field artillery, and armed warships.

    7th circuit court just gave the AOK for private armed navies.

  18. avatar Biff Baxter says:

    He has a beard, which means he must be an intellectual.

  19. avatar Burley Ole'Bear says:

    It’s so frustrating to see how many have forgotten what the Founders offered us. We could have had true Liberty. This country was founded on Classical Liberalism which means the opposite of what this judge is trying to say. The intent of the founders was to leave allowable anything that was not expressly forbidden.
    The premise of plain old tyranny is EXACTLY what this judge is applying: all that is not expressly allowed is forbidden. When did we get so upside down?

  20. avatar Marcus (Aurelius) Payne says:

    What the fuck is a semi-automatic magazine?! Are they trying to kill us all with aneurysms?

  21. avatar Out_Fang_Thief says:

    Pardon me for being Captain Obvious, but the 2nd A doesn’t protect the right to keep and bear “guns” it says the right to keep and bear “arms” as in, firearms. Not a specially defined, capriciously approved of, class of arms, but all arms, now, and yet to be thunk-up and created.

    How can so many so-called educated lawyers, not comprehend the beautiful and uncomplicated simplicity of what the word “arms” means? This judge can’t seem to manage such a basic task. That’s why we have impeachment. If we would, but use it.

  22. avatar Paul53 says:

    Judicial activism at it’s worst.

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