Civil Rights Defeat in the 7th Circuit

Gavel in Court

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 “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.

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 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.

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.

12 thoughts on “Civil Rights Defeat in the 7th Circuit”

  1. that is probably the worst written ruling on firearms I’ve ever read. The 2nd amendment only protects muskets? Really? Was this written by the Brady campaign’s intern?

  2. Wonder if SCOTUS will take this one? They’re thumbing their noses at the Supremes, you’d expect the Heller 5 would be none too happy about this.

  3. This is why I personally decry the emphasis on the “self-defense” aspect attributed to the 2A. Its clear purpose is to provide local defense against government tyranny, predominately on the State vs. federal level, but, according to Cox, Rawls, et al., also at the community vs. State level. When courts are forced to recognize this, then the spurious argument that “assault rifles aren’t necessary to the purpose of the Second Amendment” would never even enter the judges’ minds.
    Respectfully, Arnie

  4. Question for the legal scholars: Under an appeal, whether en banc or SCOTUS, are the justices bound in scope to only decide whether the lower courts arguments are BS or the case as a whole? In other words, could a pro-gun control judge on the en banc court say

    “Yeah, the majority reasoning is a joke, but the AW ban is legal for a bunch of other reasons not addressed in the decision.” BAN STANDS


    “AWs should be banned, but the lower court made a bad arguement” BAN OVERTURNED

    1. The Supremes are only going to take this case if it pisses them off enough that Heller is being ignored. However, given the political debates and all of the various bans across the country on scary black rifles (and the related political considerations), I doubt they take it.

  5. If it is a “softball” to SCOTUS, it follows in the tradition of Miller…

  6. I was actually thinking of Miller. This could allow the court to go right to Miller and its “has some reasonable relationship to the preservation or efficiency of a well regulated militia” language, and say something like “it is obvious to us that since these guns are variants of the rifles used by militaries around the world, they must have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’ and therefore are protected by the 2nd Amendment.”

    One can hope. It wasn’t that long ago that we were hoping for shall-issue carry in most places, and now we’re getting Constitutional carry, so maybe that hope isn’t too unrealistic.

    1. My sentiments exactly! The anti-gunners’ dilemma is insurmountable:

      They want to tie 2A gun rights to association with a militia, while at the same time removing militia-style guns from the list of protected weapons. They can’t have both – at least not in a rational world.

      Once our “association” with the militia is legally proven…
      [“The militia of the United States consists of ALL able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
      The classes of the militia are—
      (1) the organized militia, which consists of the National Guard and the Naval Militia; and
      (2) the UNORGANIZED militia, which consists of the members of the militia who are NOT members of the National Guard or the Naval Militia. 10 USC 311 (emphases added)].
      …then their entire argument against our possession of military arms crumbles.

      – Arnie

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