In a 2-1 decision, a panel of the 7th Circuit upheld a ban on “assault weapons” by the City of Highland Park, Illinois. Judges Easterbrook and Williams upheld the ordinance. Judge Manion dissented and would have struck down the ordinance as violating the Second Amendment.
The City of Highland Park has an ordinance (§136.005 of the City Code) that prohibits possession of assault weapons or large?capacity magazines (those that can accept more than ten rounds). The ordinance defines an assault weapon as any semi?automatic gun that can accept a large?capacity magazine and has one of five other features: a pistol grip without a stock (for semiautomatic pistols, the capacity to accept a magazine outside the pistol grip); a folding, telescoping, or thumbhole stock; a grip for the non?trigger hand; a barrel shroud; or a muzzle brake or compensator.
The Seventh Circuit indicated that the Supreme Court had not indicated the level of scrutiny under which a law implicating the Second Amendment must be analyzed. It could not be mere “rational basis” scrutiny. All laws must have a rational basis and, if that were the low bar set for Second Amendment cases, the Second Amendment would not do anything. Having noted that, however, the Seventh Circuit declined to articulate a level of scrutiny and, instead, announced:
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.
The court then noted that the banned features were not common in 1791. And, while the court noted a potential relationship to a well-regulated militia, the court thought that, since it was up to the states to regulate their militias, it was not a violation if state authority was used to ban this sort of weapon. (The court elided the question of whether it made a difference that this was an ordinance rather than a statute by observing that Plaintiffs contend that the same law would be a constitutional violation if imposed by the state instead of local government.)
With respect to self-defense, the court engages in some petard hoisting. When plaintiffs argue that the ban will leave citizens with insufficient options for self-defense, the court looks at the plaintiff’s argument that the ban will not stop crime. Part of that argument, apparently, was that criminals would simply turn to firearms not regulated by the ban to commit crime and, therefore, the ordinance was not rationally calculated as a crime prevention mechanism. If criminals can commit their crimes with other weapons, the court reasoned, then so too could citizens protect themselves with permitted firearms.
The court concludes:
McDonald holds that the Second Amendment creates individual rights that can be asserted against state and local governments. But neither it nor Heller attempts to define the
entire scope of the Second Amendment—to take all questions about which weapons are appropriate for self?defense out of the people’s hands. Heller and McDonald set limits on
the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self?defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819).
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.
Judge Manion disagreed, regarding the Court’s holding as contrary to the relatively recent Supreme Court holdings in Heller and McDonald. In his view, those decisions largely read the status of weapons at the time of the 1791 ratification and consideration of militias out of Second Amendment analysis. Because the Supreme Court determined that weapon ownership was an individual right, Judge Manion regarded the self-defense analysis as the only part of the majority analysis with some relevance.
To be sure, assault rifles and large capacity magazines are dangerous. But their ability to project large amounts of force accurately is exactly why they are an attractive means of self-defense. While most persons do not require extraordinary means to defend their homes, the fact remains that some do. Ultimately, it is up to the lawful gun owner and not the government to decide these matters. To limit self-defense to only those methods acceptable to the government is to effect an enormous transfer of authority from the citizens of this country to the government—a result directly contrary to our constitution and to our political tradition. The rights contained in the Second Amendment are “fundamental” and “necessary to our system of ordered liberty.” McDonald, 561 U.S. at 778. The government recognizes these rights; it does not confer them.
In his analysis, Judge Manion engages in some parsing of which weapons are covered by the Second Amendment and which are not that strikes me as somewhat dubious. Using hand grenades as an example, he says that the question of whether a particular weapon is covered by the Second Amendment turns on whether the weapon has ever been “commonly used by law-abiding citizens.” Perhaps grenades have not been commonly used by law-abiding citizens because they have been illegal.
But, there is much more to his dissent, and it, too, is worth a read.
Update: At its conference on December 4, 2015, the United States Supreme Court denied transfer (see the dissent starting on page 12 of the link) over a dissent written by Justice Scalia and joined by Justice Thomas.
The majority did not explain the denial of transfer, so it’s difficult to read much into what they might be thinking. But Justice Thomas believed that the Highland Park ban was contrary to Heller and McDonald. Justice Thomas noted that the 7th Circuit panel majority had adopted a test that asked “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, . . . and whether law-abiding citizens retain adequate means of self-defense.” He does not believe that this test: 1) weapons in existence in 1791; 2) the relationship to a well regulated militia; or 3) self defense is justified after Heller. He believes it was error for the 7th Circuit to limit the Heller decision to the facts in that case (involving handguns and self-defense). He does not appear to think that the relationship to a militia constrains the individual’s right to possess bearable arms in any way and, in any case, he believes that Congress and not the States are in charge of organizing militias.
Thomas’s insistence that Heller protects those weapons “commonly” used for self-defense regardless of available alternatives is perplexing to me as a matter of Constitutional analysis. Why would popularity or lack of popularity matter to Second Amendment analysis. Your right (or lack thereof) to own a gun depends on whether your neighbors also like that type of firearm? Meanwhile, Justice Thomas states that the public’s sense of safety (which may arguably be enhanced by a ban of such firearms) is an irrelevant policy consideration.