By Ripcord
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.
Hubris can be a dangerous bedfellow. In fact, hubris such as that exhibited by Easterbrook in this decision may be one of the only things that would cause SCOTUS to take up the case, should it reach them.
You can hear the challenge and the disdain in his writings – I’d love to live to see it fed back to him.
Why Iowa voters have judicial recall.
Hmmm… I think I see the strategy here. He knows that the pet liberals in an en-bank review in the 7th circuit would never uphold a ruling against the law, so he wrote his decision in such a way as to force the SCotUS to either take the case or to allow one of their landmark rulings to basically be ignored. Somehow, I don’t see even the current court ignoring such a blatant shot across their bow.
I don’t get Easterbrook’s strategy here. The plaintiffs will try for en banc review. The 7th will either grant or deny. If they grant they will either strike-down Easterbrook thereby embarrassing him; or, they will uphold him thereby taking the risk on themselves of being embarrassed by SCOTUS. The only way I see this as working out for Easterbrook is that the 7th refuses to review; thereby, avoiding the risk of embarrassing themselves.
In this scenario, Easterbrook might hope that SCOTUS won’t take the appeal; or, if it does, by the time they hear the case the composition of SCOTUS will shift left. Is that what you think?
I would like to see Ted Cruz as the next appointed supreme court justice.
The argument on these weapons bans by states and localities is foreclosed by the Constitution: Art. I Sec. 8, Cl. 16 :
“[Congress shall have power] … To provide for organizing, ARMING, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
Congress has plenary power over the arming of the militia (which is every able-bodied resident). The States have reserved ONLY the power to appoint officers of militia and the authority to train them according to Congressional requirements. Congress was granted NO power to DISARM — and the States have no reserved power regarding the arms of the militia, since that was delegated to Congress (and so precluded to States even under the 10th Amend.). If the States disarmed the people that would defeat the efficacy of the federalized militia. The States thus HAVE NO POWER over the arms of the militia.
The U.S. v. Miller argument remains, and that is a factual question, whether the given arm in question “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” No weapon (and arguably no caliber or magazine capacity of weapon) borne by any component of the U.S Armed forces or by any sworn law enforcement officers (“officers of militia” per Art. I, Sec. 8. Cl. 15&16) can fall outside that factual definition. That may leave only the “weapons of dishonor” of traditional common law usage as being within the police power of the States — subject to the Miller test.
This is an interesting argument. The inferior courts seem to want to rule that the 2A secures only the right to keep a handgun in the home. Unless and until SCOTUS expands the right beyond Heller and McDonald, the legislatures are free to do whatever they want. Inferior courts are free to back their legislatures.
Congress has yet to either “To provide for . . . arming, [or] disciplining the Militia, . . . ” Clearly, Congress could provide AR-15s to militiamen. Only slightly less clearly, Congress could provide for disciplining the militia by requiring each member to arm himself with an AR-15. Having not yet done so, it certainly seems dubious for the States to DIS-arm the militia of the particular civilian rifle that most closely corresponds to the rifle born by troops. For SCOTUS to tolerate this situation would seem to gut the 2A of precisely its intended effect via an implicit conspiracy between Congress and a particular legislature (the town council of this municipality).
One quibble: some judges in inferior courts seem to be in rebellion vs Heller, McDonald, Miller.
Read Judge Boggs opinion in Hillsdale, pgs 26 on, for a good review on recent decisions and strict scrutiny as default.
Great explanation by poster Esqappellate at mdshooters; “chaos reigns in CA’s until SCOTUS steps in.
IMHO we 2A believers are getting closer, just awaiting the right case(s) for SCOTUS to say so.
Ps: Jackson relisted 3 times…next Monday may be a signal.
We each HAVE the FULL SCOPE of our fundamental natural and civil rights upon our creation and the Supreme Court’s PRIMARY DUTY is to PROTECT the FULL SCOPE of the people’s RIGHTS, PRIVILEGES AND IMMUNITIES.
Most judges are deserving of noose therapy to be applied by the citizens in their AOs!
The two judges issuing this “opinion” certainly fall into the USURPER definition.
The founders were very clear as to what fate should become USURPERS. We the People should make note!
I believe Justice Easterbrook is testing the waters in the hope the SCOTUS will allow some abridgement of individual rights under the guise of “public safety”, “common sense”, “common use”, or any other nebulous and frivolous term that may be dreamed up. The press would be well advised to listen closely while heeding the old saw that ‘what’s good for the goose is good for the gander’. To paraphrase a popular leftist motto, “Never let a precedent go to waste”.
Easterbrook may simply have seen that SCOTUS is unwilling to take up another gun case, so why not try to bury the second amendment incrementally? Rational basis means the end of serious court challenges.
He may be thinking that there only needs to be a one judge change for a complete reversal of Heller.
“He may be thinking that there only needs to be a one judge change for a complete reversal of Heller.”
Why the next election is so critical…
+1. And why we POTG need to vote Anyone But Democrat, November 2016, rather than stay home in protest.
The margin of votes Obama got in key electoral states in 2012 vs Romney, was less than difference in fewer conservatives voting in 2012 than 2008.
Argue and fight over perfection in primaries. Whoever gets to the end will appoint next 2-3 SC Justices…
Dont be OCD Tarrant dumb when time comes….or we’ll end up with Fast n Furious sponsoring Sec State HRC.
Im not holding my breath here.
The Supreme Court has backed away from any case that will give us what we want.
5 to 4 that the AR15 with a 30 round mag is the most commonly used gun in the country period…………so hands off it dang it!!!!!!
But I can dream cant I??
The problem, to a certain degree, is that the three “carry” cases in the Second, Third, and Fourth Circuits–especially the Maryland case that applied a rational basis analysis while conveniently calling it intermediate scrutiny in a case where there was absolutely no evidence in the record of any legislative findings, were also challenges to Heller that have gone unanswered. It will become increasingly difficult to get a case to the Supreme Court level, as the states that would deny rights are uniform, and the issue does not arise in free states. Peruta (and related cases) is the last chance on concealed carry rights, and so far, bans of “assault weapons” have been uniformly upheld. If the SCOTUS does not act soon, there will be no case for it to act upon…and that would be a bad thing.
I’m more optimistic. I think that SCOTUS is loath to take a carry case because this would require them to make some ruling that would interpret the police power in the public square. It was far easier to protect guns in the home where the “public” outside the occupants of the home would be little affected. To rule about carry SCOTUS would have to do something bold like: compel Constitutional Carry; compel Shall-Issue; or, authorize May-Issue. The liberals don’t want to either of the first two; the conservatives don’t want to gut the 2A by authorizing the 3’rd.
This case is not about carry; it’s about keeping a class of gun in the home. SCOTUS could easily take this case and rule consistent with Heller and McDonald. The AR-15 would be perfectly consistent with Miller and a trivial extension of Heller and McDonald. If the conservatives believe that Kennedy will vote with them then this should be a no-brainer. This coalition should find this case an ideal vehicle to discipline the lower courts to get them to read the dicta of Heller and McDonald and start fleshing out a set of lower court rulings consistent with that dicta.
+1. This is a square contradiction between the 7th CA, and settled law by SCOTUS. Much speculation on why SCOTUS on why no cert on Drake, Woolard, Kachalsky but easiest answer is SCOTUS waiting until all CAs including the largest, the 9th weighed in (percolation) and the best case emerges that addresses issues needing next level of definition or guidance. Which imho is 1. scrutiny, and 2. objective measure on facts and reason, for “government interest”, beyond vague logical fallacies for LEA appellees or amici “appeals to authority” for public safety, or “feelings/SJW triggering”, or “police get home end of shift” absurdities. Whats next…”micro-aggressions”? (Snark).
“Feelings” of the hysterical few, as rationale for denial of 2A rights to all hardly makes sense, but its in every Brady amici, lately, including Peruta/Richards now awaiting full panel en banc in 9th. Lets hope SCOTUS will step in and reverse on this MomsDemandAction kind of reasoning, there or in Friedman, next term, once the Justices get past ACA, immigration, and DOMA.
I mean, really…if Kroger can make the common sense call, (read the Friedman dissent, its pretty simple)
Then surely Kennedy, Kagan, and Breyer can do the same as the Heller 4.
“the best case emerges that addresses issues needing next level of definition or guidance. ”
““Feelings” of the hysterical few, as rationale for denial of 2A rights”
So, a reasonable conjecture is this: The Highland Park “feelings” rationale might be an issue needing the next level of definition or guidance. SCOTUS might be waiting for the stupidest case it can find that it can knock-out. This one might qualify. Highland Park would allow SCOTUS to decide that a fundamental right can’t be compromised because it might make someone’s feelings less uncomfortable. Were such an argument to stand then the media and individuals would have to curtail their writing and speech to protect the feelings of any minority. Simply overturning the decision wouldn’t be hard to do in that SCOTUS wouldn’t have to address Constitutional Carry vs. Shall Issue vs. May Issue. That clearly knocks-out rational basis test.
The PotG are waiting with baited breath for SCOTUS to strike a home run. I can’t imagine SCOTUS making it that easy. Self-defense in the home with a handgun was easy. Selective incorporation was easy. Likely, we should be looking for additional easy cases that narrow the bases on which any legislature can found an infringement.
Yes it will because it will leave the people with little other options than to resort to the exercise of the rights PROTECTED (supposedly) by that amendment for relief. The USURPERS really don’t want that, I don’t think.
Man, Reagan made some really bunk decisions when it came to 2A support and Easterbrook is one of them. Just another oath-breaker.
It’s hard for a President to pick credible justices who won’t “evolve” over time. Obviously Scalia was a good pick, but even Roberts went wobbly on Obamacare. Most people want to be liked, and the left, especially within the various bar associations, spends decades pressuring judges.
I wasn’t alive at the time, but the Reagan I’ve read about wasn’t the most stalwart supporter of the 2nd Amendment.
On the Second, Scalia may have been a good pick, but in general he wasn’t. The man has a habit of making up his own facts when he doesn’t have any to support his position, and has little to no respect for the Fourth Amendment.
Is there a link to the dissent?
It’s at the end of the opinion. Scroll down toward the bottom.
What he should have said…
Another constitutional principle is relevant: the Constitution establishes a federal republic where individual differences are cherished as elements of liberty, rather than eliminated in a search for local uniformity.
if the Government has it…. so must we have it without limits. end of story.
this BS will end or we are handing over country to them… there is no in between.
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.
So I guess the Jim Crow laws could’ve been considered “local differences”.
I had no idea that local municipalities had the right to deny human rights to their citizens. Because of freedom, apparently.
The freedom to oppress. There’s a leftist thought if ever there was one.
Today I learned that an M16 or AK47 in military service is a submachinegun….
We are also waiting on a decision for CT & NY.
Fact is no level of government anywhere in the World has any LEGITIMATE power/authority to ban ANY weapons or ammo – ESPECIALLY if they were intended for military utility. Especially dangerous weapons such as Nuclear, Biological and Chemical not suitable for customary defensive or other lawful purposes excepted. Everything else from fully automatic ASSAULT RIFLES to Fighter Aircraft and fully armed Ships of War are the birthright of every person on Earth. I would remind you that The Declaration of Independence says, “All men (meaning mankind) are created equal and endowed …”!
The above statement is PARTICULARLY TRUE and ACCURATE on American soil because our RKBA was codified in our Constitution and BoRs. A document these wannabe tyrant USURPERS all swore a sacred oath to “uphold, protect or defend.”
PROOF you ask? The militia, being the people, are expected to show up with their OWN arms of military utility. And, the practice of granting Letters of Marque and Reprisal, an enumerated power, authorizing PRIVATEER ships to attack British ships on the high seas and again against the Barbary Pirates, etc. 20th Century example you ask? Can you say BLACKWATER? Not to mention other Civilian mercenaries, er, I mean, “contractors” hired by the US Government for action in Iraq, Afghanistan and who knows where else?
I could also reference SEVERAL quotes from NUMEROUS founders and several court “opinions” which clearly indicate that weapons of military utility are especially protected. That was when the anti’s were pushing the “only the militia is allowed guns” meme. They still don’t understand, for some mysterious reason, the unorganized militia IS THE PEOPLE – which would be funny were it not so dangerous to our Liberty.
In the Heller v. D.C. SCOTUS “Opinion”, June 2008, on page 8 approx. 3/4 down page it states:
“… the Second Amendment extends, prima facie, to all INSTRUMENTS THAT CONSTITUTE BEARABLE ARMS …” [emphasis mine].
That, my fellow countrymen, only establishes the FLOOR of the rights protected by the 2A and NOT the ceiling!
Please take special note that when oath-breaking USURPERS in black robes assert that our rights “are not unlimited”, the only authority they can point to is the “opinion” of a previous court/judge because the enumeration of such power is nowhere to be found in the Constitution. Quite the contrary actually!
You know what IS found in the Constitution at the very end of the 2A?
“SHALL NOT BE INFRINGED”!
UNALIENABLE is also discussed in the Declaration of Independence, the inspiration for our Constitution, when mentioning creator endowed rights which the government’s primary duty is to protect!
I would also like to point out that LEOs have NO MORE 2A rights than the people in general. Color of law legislation that provide them such are unconstitutional, illegitimate and nonenforceable by an HONORABLE court.
Also, for the record, neither the feds nor the states can “legislate” nor “opinion” themselves powers NOT ENUMERATED to them. Any legislation/law that is outside the scope of enumerated powers is a nullity and also cannot be enforced by any HONORABLE court.
I would strongly suggest the ruling class rethink the FRAUDS they’re PERPETRATING against the American people and their liberties and in direct VIOLATION of their oaths of fidelity to the US Constitution and their PRIMARY DUTY of protecting the rights, privileges and immunities of the people.
STATE NULLIFICATION is the proper course for the people to take at this time to stop the USURPATIONS OF POWER being perpetrated by the Obama Admin, the Congress of the U.S/State Legislatures and the courts/judges.
If that doesn’t work, in the final analysis, “We the People” may be forced to prosecute the one war we’ve desperately needed in America for over a century but haven’t yet had:
The WAR ON USURPERS.
Thank you.
This is simply super