A panel of judges with the Seventh Circuit Court of Appeals heard arguments on Illinois’ controversial assault weapon ban Thursday, challenging the state’s justification for the ban and the plaintiffs’ reliance on “in common use.”
Judges Frank Easterbrook, Diane Wood and Michael Brennan presided over the hearing and took the arguments under advisement.
The Protect Illinois Communities Act was signed into law on Jan. 10 by Gov. J.B. Pritzker. Since then, there have been several state and federal lawsuits challenging the law’s constitutionality. Courts have reached varying conclusions, and the case is expected to go to the U.S. Supreme Court regardless of how the Seventh Circuit rules.
Illinois Deputy Solicitor General Sarah Hunger opened arguments at the hearing, saying assault weapons are comparable to M16s, which she called “weapons of war.”
She added that it is the state’s view that the roughly 170 weapons regulated by the Protect Illinois Communities Act are not commonly used for self defense and are consistent with the historical tradition of regulating “dangerous and unusual” weapons.
Hunger argued the Supreme Court discussed in its Bruen decision last year that “arms that are in common use for self defense” rather than ruling on “bearable arms."
Brennan said he struggles with her argument because the court’s conclusion connects the people but “it never connects arms to ‘in common’ use for self defense. That’s alighted.”
Hunger acknowledged that the court’s ruling does not define “arms” as being “in common use.”
“We’ve got to look at this amendment in light of all the amendments,” Brennan said. “And I can’t think of another constitutional amendment that would be approached in this manner that would read it so narrowly from the front end. We certainly don’t read the First Amendment that way. We don’t read the Fourth Amendment that way.”
Hunger argued that the law restricts “a very narrow” group of weapons.
She called the weapons regulated in the gun ban “offensive militaristic weapons” that were “designed for the battlefield."
Brennan asked her how and why the regulation is a burden.
“Is there any ‘why’ in support of the Act that did not also apply to public carry in Bruen?” he asked.
She responded that the weapons’ use in mass shootings is the 'why.'
“I must say though, I don’t see how that is anything but an effort to get means-ends scrutiny in through the back door,” Easterbrook said. “You’re saying the state has a good reason for doing what it’s doing. That’s exactly what the means-ends business is about. How can we, given what Bruen said about mean-ends arguments, how can we consider this?”
“I think we can under the justifications-prong of what is relevantly similar,” Hunger said.
She acknowledged that the Supreme Court held that there cannot be any means-ends scrutiny, but said they are presenting the justification for the law.
“I hope you see that you are just repeating the reason why I asked my question,” Easterbrook said. “You’re asking us to consider through the back door something that Bruen bars at the front door. And I wonder whether that’s consistent with our role as the constitution calls ‘an inferior court.’”
“Well it is consistent with Bruen because there’s another door with Bruen, and that’s the justification. I understand that that might be slightly contradictory for what the court would have said in Bruen, but it is what the court said,” Hunger responded.
“So we not only get the two-part test that they expressly said was one-part too many, but we also have the very same criteria that courts of appeals used before Bruen, even though they were expressly disapproved. Does your argument really hinge on this?” Easterbrook asked.
Hunger responded that her argument “does not hinge on this” because the weapons regulated in the new law are “dangerous and unusual” and are consistent with the historical tradition of regulation.
Assistant State’s Attorney Jessica Sheller presented arguments on behalf of Cook County defendants named in Dr. Javier Herrera’s lawsuit out of the U.S. District Court for the Northern District of Illinois. Herrera is a doctor of emergency medicine.
She argued that the AR-15 sought by Herrera “is not consistent with the nation’s historical tradition of moderate self defense,” and the weapon is not protected by the Second Amendment for reasons similar to the regulation of gunpowder.
Brennan noted that the “why” in regulating gunpowder was to prevent fires and explosions.
“Isn’t the ‘why’ here different? Whether it’s public violence generally or a segment of public violence?” he asked.
She disagreed, saying the “why” in this instance would be to prevent mass death.
“That is the same ‘why’ that led to the regulation of gunpowder,” Sheller said.
“You see how we might have some concern of that being overbroad?” Brennan asked.
Sheller added that gunpowder restrictions were also established to protect firefighters who were coming onto the scene to help aid and render assistance.
“Similarly here, we have provided several instances where law enforcement officers responding to mass shooters armed with AR-15s are afraid to engage the situation or otherwise delayed in engaging the situation while they pull in military equipment,” she said.
“Isn’t Mr. Herrera’s argument precisely that?” Brennan countered. “He needs to be protected when as a S.W.A.T. medic he goes to the scene?”
Sheller responded that Herrera is a medic but is not a member of the S.W.A.T. team.
Wood then noted that the case requires them to specifically consider “what are the arms.”
She asked if they can all agree that when they see the word “arms” within the Second Amendment, they have a “sorting job.”
Sheller responded that the core right is self defense, which has a principle of moderation.
“There has always been a notion that you cannot use excessive force even in self defense or it becomes a crime in and of itself,” Sheller said.
“Self defense is not an unlimited right,” she added.
Chicago attorney Gilbert Dickey argued on behalf of Herrera, arguing that the Militia Act allows lawful civilians to keep weapons for common defense in the home.
Easterbrook asked if his arguments extend to things such as bump stocks and their ability to mimic machine guns.
Dickey said items such as bump stocks and machine guns are useful for suppressive fire, but not for self defense.
“We think [the Militia Acts] show that … weapons that were useful for lawful civilian purposes like the AR-15 - and that’s not just limited to self-defense clearly but also target shooting and the like - were protected by the Second Amendment,” Dickey said.
Erin Murphy presented arguments on behalf of the Barnett plaintiffs, who were granted preliminary injunction by district judge Stephen McGlynn of the Southern District of Illinois. The state defendants appealed.
Murphy argued that the weapons regulated in the law are in common use for self protection and are therefore protected by the Second Amendment.
Easterbrook challenged her argument, saying it hinged on the word “today.” He asked her to consider the ban on machine guns in 1938, saying they were in common use at the time.
Murphy said machine guns could be prohibited because they were not typically possessed by law-abiding citizens for lawful purposes.
“That is quite different than what we are talking about here today,” she said.
Easterbrook questioned why it matters what was in common use in the 1930s, saying it is a matter of current events.
“Normally, we think current events are for legislatures. History is the demand of the constitution,” he said.
“We take the historical principles and apply them to modern-day facts,” Murphy responded.
Where does that come from as a historical principle? That the Second Amendment protects whatever weapons are in common use whenever we choose to ask that question?” Easterbrook asked.
Murphy said it comes from the historical tradition of what types of arms are banned.
“The laws that existed historically,” she said.
Wood said some weapons are not intended for protection under the Second Amendment for civilians to possess. She asked Murphy if people would have the right to keep and bear grenades if they are popular.
Murphy responded that grenades are not bearable arms.
“Grenades are an easily bearable arm, that’s the whole point,” Easterbrook said.
“One of the problems that I at least have with your presentation is that it makes the constitutionality of a law depend on where it was enacted, when it was enacted relative to sales,” Easterbrook added.
Wood raised concerns about analyzing the constitution based on what is popular.
“It’s very troublesome to have a popularity contest determine a constitutional principle,” Wood said.
Murphy argued that the Second Amendment “was passed to keep the government from taking things away from people,” and Easterbrook and Wood countered that the law prevents new sales.
Murphy responded that the law does more than just prevent new sales. It bans certain firearm accessories, regulates the use of roughly 170 weapons, and requires Illinois residents to submit to a registry for their weapons.
Wood said, “Only if they fill out this registration form, which is, honestly, you know, no worse than anything else people fill out everyday.”
Wood added that the new restrictions “didn’t look all that huge to me.”
Wood suggested going to the legislature for changes in the laws, and Murphy said the Supreme Court ruled that the legislature is overreaching when it comes to the Second Amendment.
“The one thing [Bruen] made absolutely clear is that you gotta ground all of this in historical tradition, and the state has not shown, even in their own words …” Murphy said.
Wood interrupted, saying “History is so malleable.” She said there is debate on which historical analogs are appropriate.
Murphy responded that the state defendants provide a history of regulation, but falls short of addressing the issue at hand.
“That is not the same thing as a history of prohibiting particular types of arms on the theory that they are too dangerous for the American people,” she said.
Easterbrook circled back to banned arms such as grenades and stinger missiles, which aren’t commonly owned by law-abiding citizens “because they are completely illegal.” He interpreted Murphy's argument as suggesting if the state banned items right away before they become common, then that would be appropriate; but if the state waits 20 years until the weapons are commonly owned, then it can’t ban them.
Wood River attorney Thomas Maag argued on behalf of the Langley plaintiffs, who were also granted injunctive relief in the Southern District of Illinois. He began by reminding the court what they were there to discuss.
“Perhaps I want to start out by saying we’re not here talking about stinger missiles, bazookas, or the like,” he said.
He added that machine guns are regulated, not banned. Roughly 200,000 machine guns are owned by civilians and are not more popular because "they're expensive."
Maag said the AR-15, which was the primary focus during the hearing, is the “great-great grandchild” of the musket used during the Revolutionary War.
“What protects the AR-15 and similar firearms, aside from the fact that they are the single most popular firearm in the United States, is that they are also the lineal descendants of the arm … used at the time of the adoption of the Second Amendment.”
Wood said his argument “puts too much in the same pot,” because the AR-15 is too different from the musket.
“It weakens your argument to say they are the same thing,” she said.
Maag countered that they are descendants, but not the same thing. He used the example of the original printing press compared to modern-day technology.
Wood asked if they could trace a weapon’s lineage to those present when the Second Amendment was written, “there’s just no power” for government to ban that weapon.
“I agree that the government does not have the power to ban the great-great grandchildren of the Brown Bess musket,” Maag responded.
Easterbrook asked if that equally applies to stinger missiles.
“Stinger missile is not a descendent of the rifle, pistol, shotgun used at the time,” Maag said.
Maag added that it would probably not be protected by the Second Amendment, because it would be dangerous and unusual.
“Unusual compared to what?” Easterbrook asked.
“Compared to anything,” Maag said.
He added that even the military doesn’t issue air defense weapons like the stinger missile to the “average infantryman.”