U.S. 7th Circuit Court of Appeal panel finds civilians' right to 'bear arms' doesn't apply to weapons intended for military use...
By Ernest A. Canning on 11/8/2023, 9:05am PT  

Assault weapons bans are still not unconstitutional. For now.

By way of a 2 - 1 decision [PDF] last Friday, a three-judge panel of the U.S. 7th Circuit Court of Appeal has temporarily upheld an Illinois assault weapons ban.

The Illinois Act makes it "unlawful for any person [except "trained professionals" and "grandfathered individuals"] within Illinois knowingly to 'manufacture, deliver, sell or purchase…an assault weapon, assault weapon attachment, .50 caliber rifle, or .50 caliber cartridge." The Act expressly applies to the AR-15 and to high-capacity magazines.

The issue came before 7th Circuit via three consolidated cases: Bevis v. City of Naperville, Herrera v. Raoul and Barnett v. Raoul. In two of the cases, Bevis and Herrera, federal district court judges denied motions for the issuance of a preliminary injunction whereas the district court, in Barnett, granted a preliminary injunction.

The 7th Circuit decision, authored by Judge Diane Wood, a Clinton appointee, and joined by Judge Frank Easterbrook, a Reagan appointee, overturned the Barnett preliminary injunction upon the grounds that the plaintiffs in all three cases had failed to establish a strong likelihood of success on the merits. (Michael Brennan, a Trump appointee, dissented.)

In order to show a likelihood of success on the merits, the plaintiffs in each of these cases…have the burden of showing that the weapons addressed in the pertinent legislation are Arms that ordinary people would keep at home for purposes of self-defense, not weapons that are exclusively or predominantly useful in military service…

While it doesn't amount to a final determination on the constitutionality of the assault weapons ban deployed in the Land of Lincoln, at a time of unbridled carnage --- there have been more than 565 mass shootings in the U.S. over the first 10 months of 2023 --- the reasoning applied by the 7th Circuit majority offers a glimpse, at least, of sanity...

Restoring balance

The 7th Circuit panel majority decision began by conceding, as it must under existing U.S. Supreme Court caselaw, that the Second Amendment right to "bear arms" extends to all citizens. (As we previously reported, prior to 2008, based upon a 1939 precedent and what former Justice John Paul Stevens described as the text and history of the Second Amendment, the right to bear arms was contingent upon service in a "well-regulated militia".)

Our courts have long recognized the need to balance rights protected by the U.S. Constitution against legitimate governmental needs, such as protecting public health and safety.

Just as First Amendment rights for freedom of speech and religion do not prevent the government from punishing someone who falsely yells "fire" in a crowded theater or punishing "child abuse even if it is done in the name of religion," the government may also draw a line on what type of "Arms" civilians --- as opposed to the military --- may possess and use, according to the 7th Circuit panel majority:

Everyone can agree that a personal handgun, used for self-defense, is one of those "Arms" that law-abiding citizens must be free to "keep and bear." Everyone can also agree, we hope, that a nuclear weapon such as the now-retired M388 Davy Crockett system, with its 51 pound W54 warhead, can be reserved for the military, even though its light enough for one person to carry.

"Bearable Arms", the majority concluded, "extends only to weapons in common use for a lawful purpose. That lawful purpose...is at its core the individual right to self-defense." The majority reasoned that "assault weapons and high-capacity magazines are much more like machine guns and military grade weaponry."

Decision bolsters CA Assault Weapons ban

In a recent en banc decision [PDF] in Miller v. Bonta, the full U.S. 9th Circuit Court of Appeal granted California's request for a stay pending its appeal of a permanent injunction that has blocked enforcement of the Golden State's ban on high capacity magazines (more than 10 rounds).

In that case, the 9th Circuit agreed with the argument presented by CA Attorney General Rob Bonta that citizens of the state would be irreperably harmbed if the law was even temporarily enjoined during the state's appeal, when it will be "presenting evidence that large capacity magazines pose significant threats to public safety."

The 9th Circuit noted that, nationwide, there were ten cases in which the constitutionality of high capacity magazine bans had been challenged. Federal district courts denied motions for a preliminary injunction in nine of those ten cases. The case from the Southern District of Illinois, Barnett v. Raoul, in which a preliminary injunction issued was a "notable exception", according to the 9th Circuit. The 7th Circuit decision reflects that this "notable exception" has since been overturned.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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