The Seventh Circuit heard oral arguments in an assault weapons case. From the questioning in this article presented by the article, it looks to me like Judge Easterbrook isn’t very fond of the common use test.
But U.S. Circuit Judge Frank Easterbrook cut him off abruptly: “What if somebody decides to possess a bazooka?”
“It’d fall into a longstanding prohibition,” Vogts replied.
“No, there’s no such prohibition; they were only invented recently. It was once perfectly legal to own automatic weapons like Tommy guns.”
“But that dates back 80 years ago.”
Easterbrook was not convinced. “Yes,” he said, “but the Second Amendment dates back to the 18th century. Why does that matter? I don’t see how you can say fully automatic weapons are okay to ban because some states banned them in the 1950s. How is it rational to distinguish a ban laid down 150 years after the Second Amendment from one laid down 200 years after?”
I think it’s important to consider what the court was trying to accomplish with that presumption, which is that commonly used firearms are deserving of protection. I don’t think too much more needs to be read into than that, which is what I think the attorney for the plaintiff was trying to stick to. The argument Easterbrook is asking, I think, can be left for another case.
But I agree with Easterbrook that the common use test, and “longstanding prohibition” doctrine is imperfect, and was largely an effect of trying to exclude machine guns from protection. I think the test should be whether the arm in question is in common use by police as well. One should not just look at commonness in the civilian population. Any gun control law that has a police exception to it should automatically be treated with strong suspicion by the courts, and any arm that is part of ordinary police equipment should be unequivocally protected for civilians as well. That would include pistols, shotguns, semi-automatic rifles, and the standard capacity magazines that go with them. It would also include body armor, chemical sprays, tasers, and batons. It might even include true assault rifles, as they become ever more common in police inventories. I think such an evaluation would create a far more equitable balance between the people and the state than a narrow understanding of the common use test.
12 thoughts on “Oral Arguments Heard in 7th Circuit Assault Weapons Case”
Actually sounds like a very favorable panel. I mean, his comments seem in favor of a more general allowance:
Later, probably trying to curry favor with Easterbrook, he added: “You can’t have a bazooka.”
The move backfired. “Why not?” Easterbrook demanded.
“They’re not commonly owned,” Wilson said.
The judge chuckled: “They’re uncommon because they’re illegal. At the time of Heller, handguns were not common in D.C.”
I’ll give the town’s lawyer credit though. He atleast knows what a barrel shroud is!:
The lawyers also sparred over the effects of various modifications prohibited under the statute.
“What really troubles me is the barrel shroud,” Wilson said. “It allows you to hold the barrel and fire multiple shots without burning your hand.”
“These features make the gun more accurate,” Vogts said in rebuttal. “Design characteristics of a firearm to make it better cannot be turned around to make it unlawful.
I’m just glad to see a high-ranking judge acknowledge the “uncommon because they’re illegal” angle, as a clear shortcoming of the “common use” test. If an enterprising individual made laser pistols or man-portable rail guns (for example) a reality, they’d be easy to ban under “common use” simply because they’re new and therefore uncommonly-owned, and will never be commonly-owned because they’re illegal.
Heck, irony could be turned on its head and we could ban “smart guns” for that very same reason. Wouldn’t you LOVE to see the antis’ reaction to that?
In all seriousness, though: It’s good to see a judge challenging the “longstanding prohibition” doctrine. Just because it’s “longstanding” doesn’t mean it’s OK. We could come up with plenty of examples – a black man being legally three-fifths of a person (in place for 81 years, ending with the 14th Amendment), women being forbidden from voting (133 years, ending with the 19th Amendment), etc. – that were “longstanding” but ultimately were not morally, culturally, or Constitutionally defensible.
“Heck, irony could be turned on its head and we could ban â€œsmart gunsâ€ for that very same reason. Wouldnâ€™t you LOVE to see the antisâ€™ reaction to that?”
Tie machiuneguns and smart guns together judicially speaking?
Be careful what you read into questioning like this. Sometimes the judge is playing devil’s advocate, or just trying to discredit the plaintiff’s theory to show the argument doesn’t work. I’m not saying that’s the case here, but sometimes what seems like friendly questioning isn’t really.
True, but he does have a point. Like you said, the common use test is an easy way to get around the MG issue. But its just more fancy word games that the courts love to play. The test should be simple. No NBCs. That’s pretty much it. Of course, most of us would be happy with anything under 50 cal (MGs to single fire).
If by “police” you mean government employees more generally, I think that is exactly right: I think the point is to make sure civilians are as equally well armed as the govt (in the event of tyranny), or that they could be effective soldiers if called to national defense. And by govt, we mean agents of the govt and their employees and designees.
But… automatic weapons *are* common among police now. Even among campus police, thanks to the DoD programs that subsidies placement of military surplus gear.
The intellectually honest answer will be a very hard pill for the court to swallow, since it means the machine gun ban is unconstitutional.
Well, yeah, in the sense that if the IRS agents or the Department of Education are carrying around machine guns, that ought to be looked at. Personally, I’m OK with civilians having anti-tank weapons, but I don’t expect that the courts would be comfortable with that. So you do have to help them reach conclusions that broadly protect the right.
Anti-tank guns are, at the federal level at least, still legal.
Did anyone point out that bazookas, RPGs, M79/M203 grenade launchers, AT guns, and other destructive devices _are_ legal for civilians to own, provided that they comply with NFA requirements. It’s even legal to own a hand grenade, provided you pay the $200 a pop tax (same for explosive ammunition for the above) and can satify bunker requirements.
Given that at the founding of the country, the general population was expected to have their own military weapons available for use in case the militia was called into action, I’d think that it would make sense that any “common use” provision would not only include police weapons but military weapons as well (e.g. M16s and the like).
I don’t know if that legal argument would work today. But it seems logical to me, anyway.
I’m not a fan of the “commonly in use” doctrine because some could take it to mean that innovations in firearms can be prohibited, since they’re things that aren’t yet in common use (because they weren’t invented until just recently), be those innovations 3D printed guns, or bumpfire stocks, or stabilization braces, or whatever. And, as folks here have pointed out, anything illegal based on some prior law is not in common use.
The simplest thing to do would be to take the second amendment at face value. “Shall not be infringed” means no infringements. The end. One can hope …
Peelian principles means if the cops can have it, so can everyone else. And those are (supposed to be) the bedrock of Anglosphere policing.
The issue regarding “common use” and “bazookas”, as it seems to me, is that it is simply inappropriate to the instant case.
This case is not about bazookas or hand grenades or shoulder-fired missiles — all of which are distinct from “common use” firearms, not by their legality (or lack thereof), but by their indiscriminately-destructive nature.
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