Opinion
At this point, gun owners and other productive Americans don’t anticipate much good news out of Chicago. On November 3, the U.S. Court of Appeals for the Seventh Circuit lived up to those expectations when it upheld Illinois’ ban on commonly-owned semi-automatic firearms in Herrera v. Raoul.
In early 2023, Illinois enacted the ill-titled Protect Illinois Communities Act. That legislation, among its numerous anti-gun provisions, prohibits commonly-owned semi-automatic firearms such as the AR-15 and ammunition magazines with a capacity greater than 10 rounds. Current owners of prohibited guns are only permitted to retain their property if they register their firearms with the government. The plaintiffs in the present case challenged Illinois’ statute on Second Amendment grounds.
This may have seemed like an open-and-shut case to some who follow Second Amendment jurisprudence.
In 2008, the U.S. Supreme Court ruled that the Second Amendment protects ownership of arms “in common use” for lawful purposes. In case there was any confusion about what “arms” that might entail, Heller decision author Justice Antonin Scalia cleared that up in 2015 when he signed onto a dissent from the denial of certiorari in Friedman v. Highland Park. In the dissent, Justice Clarence Thomas explained,
Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
Commonly-owned semi-automatic firearms have only become more common since Heller and the Highland Park case. In 2022, the National Shooting Sports Foundation (the firearm industry trade association) estimated that since 1990 more than 24 million modern sporting rifles (their term for commonly-owned semi-automatic rifles) have entered circulation in the U.S. A 2023 Washington Post poll found that “6 percent of Americans own an AR-15, about 1 in 20.” Given compelling research finding that polling systematically undercounts the number of gun owners in the U.S., that number may be far higher.
The standard capacity firearm magazines Illinois prohibits are not just common, but ubiquitous. Many of the most popular handguns and rifles in America are designed to use magazines with a capacity greater than 10 rounds. Americans own hundreds of millions of firearm magazines with a capacity greater than ten rounds.
If Heller weren’t enough, in 2022 the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen. Justice Clarence Thomas’s opinion made clear that in order for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. As the dissent in the present case noted, “’in common use’ is a sufficient condition for finding arms protected under the history and tradition test in Bruen.” However, for a firearm restriction to be permissible it must meet that further burden.
Specifically, the Bruen opinion explained,
[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
Given that the concept of an “assault weapons” ban targeting semi-automatic long guns came about in the 1980s only after gun control advocates failed to ban their preferred target (handguns), such prohibitions have no place in the American tradition.
To uphold the Illinois ban, the Seventh Circuit set about contending that the AR-15 falls outside the definition of “bearable arms” discussed and protected in Heller. According to the Judge Diane Wood,
the definition of “bearable Arms” extends only to weapons in common use for a lawful purpose. That lawful purpose, as we have said several times, is at its core the right to individual self-defense.
Wood contended that firearms that are prominent in military purposes fall outside this definition and are therefore not arms covered by the Second Amendment. Wood then claimed that the AR-15, despite its solely semi-automatic function, resembles the fully-automatic military M16 sufficiently for it to also fall outside the Second Amendment’s protection.
Perhaps understanding just how flimsy this argument is, given the AR-15 and M16’s completely different fire control function, Wood then shared at length her concern about the potential that an individual may illegally modify an AR-15 to fire automatically and into something akin to the M16, and that this would also place it outside the scope of the Second Amendment.
Little space was given to explaining why the state’s standard-capacity magazine ban is permissible.
Wood’s emphasis on a firearm’s potential military application as justifying a ban is bizarre and concerning. First, the American tradition is replete with examples of the military adopting civilian firearm technology for its use and civilians adopting what was once primarily military firearm technology for lawful purposes including self-defense. Gun owners understand that what makes a firearm useful for a variety of lawful civilian purposes may also make it useful to the military, and vice versa. The military’s use of a particular type of technology shouldn’t remove that technology from Second Amendment protection.
Second, under Wood’s rubric, it’s not just the technology that the military uses that enjoys no Second Amendment protection. Firearms that resemble or are within some other undefined proximity to technology the military uses could be banned as well. How far does that proximity extend? A cynic could be forgiven for thinking it would largely depend on the technological ignorance and political proclivities of the judge and their clerks.
Also consider Wood’s contention that the purported potential to illegally modify an AR-15 into a prohibited machinegun, resembling an M16, removes it from the Second Amendment’s protection. In part of her opinion, Wood approvingly quoted a passage from Heller that states,
the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
Any common shotgun can be modified to a short-barreled shotgun with a hacksaw. Does that mean shotguns aren’t protected by the Second Amendment because a person could modify one into a firearm that doesn’t receive Second Amendment protection (under the Court’s current case law)? Wood’s AR-15 logic invites this absurd result.
Post-Bruen, just as what happened after Heller, many federal courts are trying to stymie the obvious results of the Supreme Court’s Second Amendment decisions. A continued effort by Second Amendment advocates will be required to ensure proper enforcement of these landmark rulings.
About NRA-ILA:
Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess, and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit: www.nra.org
Bearable Arms include ANY weapon a man or woman can pick up, carry around and use to attack another or defend themselves, from small edged weapons to swords, from grenades and RPG’s to laser guns and stun guns, from machine guns to bolt action sniper (deer) rifles. Whatever we the PEOPLE deem appropriate is what we SHALL USE, and the gov was specifically prohibited from interfering with our choices, ownership and use, by the founding document that we employed to create the US government. If judges and state or federal politicians tried this BS a hundred years ago, they’d be… Read more »
In other words, if something looks similar to something else, it must be the same thing. So, some drag queen wearing tons of makeup must be the exact same thing as a real woman. Dogs should be outlawed because they look so similar to wolves. A cat looks just like a tiger, only smaller. Is that the hill that judge is choosing to die on? What a moron.
A far greater threat to society are communist judges and not AR-15’s.
Sometimes these court decisions read like a parody of a Monty Python sketch.
Judge Wood apparently hasn’t considered the implications of the Miller ruling from the late 1930s. As flawed as the proceedings were (essentially no defense presented which would have addressed the Justices’ technological and military ignorance) the ruling was that sawed-off shotguns were not protected by the Second Amendment, since they were not useful to the militia. This means that what a militia would use is protected. Since a militia would have basically the same job as the military, it stands to reason that it would need the same arms. Since the Second Amendment has to protect something, that leaves actual… Read more »
NO government employee has absolutely ANY AUTHORITY in this game whatsoever. The government is forbidden to feven engage in these discussions or hearings. Those in government service that do are called Tyrants. There is no other name, description or excuse. TYRANTS
This twit should be reprimanded by SCOTUS upon appeal. Judges should not be allowed to rule on things that they have no knowledge about. Judicial ignorance should not trump the freedoms of the people.
Han6 ALL treasonous skum.
The “magic words” of our founding documents were not written on the back in invisible ink. They were right on the front for all to see and understand. But languages are changed over time to fit the changing needs of the people who use them. as an example in a rhetorical question (one you’re not expected to answer out loud), when is the last time you “knew” your spouse? I point that out in order to lead into another question. WTF is a “well regulated militia?” Modern usage would suggest, as the gun grabbers often do, that it is a… Read more »
A lot of useless effort going on there to simply say the tyrannical domestic enemies of the Constitution plan on continuing to infringe. For this they should be removed from office permanently, and jailed for Deprivation of Rights under the Color of Law.