The 7th Circuit Court of Appeals has been more pro-gun than most federal circuits, but asking it to strike down an assault weapons ban was apparently a bridge too far. Easterbrook’s opinion essentially says because assault weapons are relatively recent technology, they can be circumscribed:
But instead of trying to decide what â€œlevelâ€ 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 orÂ those that have â€œsome reasonable relationship to the preservation or efficiency of a well regulated militia,â€ see Heller, 554 U.S. at 622â€“25; Miller, 307 U.S. at 178â€“79, and whether lawâ€abiding citizens retain adequate means of selfâ€defense.
Really? Would Easterbrook be OK with importing this kind of reasoning into First Amendment jurisprudence? The Founders could not have possibly envisioned the Internet, so should it be afforded no protection whatsoever? Can states experiment with publication bans? The Food Babe spreads lies and dangerous information, can we just take her offline?
Easterbrook argues that the banned weapons may be useful for self-defense, but there are plenty of substitutes that citizens can use. DC unsuccessfully made the same arguing to try to save it’s handgun ban. How is this not ignoring Heller? This is probably the most jaw dropping part of the opinion for me. Easterbrook argues that while it might be true that these laws are largely useless, if it makes people feel safe, that’s a compelling enough reason to justify government restriction. Again, do we feel OK importing this reasoning into other contexts? If an officer feels like there’s some pot plants in that house, is that ground for breaking down the door? Do we need to suppress free speech because it makes some precious snowflakes in college “feel unsafe” these days?
Judge Manion wrote a dissenting opinion, essentially arguing that the majority was gutting the Second Amendment, and ignoring Heller. A favorite line of mine:
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 courtâ€™s reading culminates in a novel test: whether the weapons in question were â€œcommon at the time of ratificationâ€ or have â€œsome reasonable relationship to the preservation or efficiency of a well regulated militia,â€ and â€œwhether law-abiding citizens retain adequate means of self- defense.â€ Ante at 7â€“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 â€œbordering on the frivolousâ€ arguments thatÂ recognized a right to bear only those arms in existence at the time of ratification. Heller, 554 U.S. at 582 (â€œSome have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.â€). Likewise, it expressly overruled any reading of the Second Amendment that conditioned the rights to keep and bear arms on oneâ€™s association with a militia. Id. at 612. (â€œIt is not possible to read this as discussing anything other than an individual right unconnected to militia service.â€). For this reason, there is no way to square this courtâ€™s holding with the clear precedents of Heller and McDonald.
I certainly hope this case gets appealed. The majority opinion seems exceptionally weak here, even compared to some of the “intermediate scrutiny two-step” opinion I’ve read.